Submitted: October 20, 2016
from United States District Court for the District of
Minnesota - St. Paul
MURPHY, GRUENDER, and SHEPHERD, Circuit Judges.
MURPHY, Circuit Judge.
Clark and defendant Charles Jones lived together on the White
Earth Indian Reservation. Their house burned down while they
were both intoxicated and Clark died. Jones was thereafter
convicted by a jury of second degree murder. The district
court sentenced him to 324 months imprisonment.
Jones now appeals the district court's exclusion of
expert testimony and photographs, the admission of several
statements he made to police officers, and the application of
a vulnerable victim sentencing enhancement. We affirm.
Clark and Charles Jones had a history of domestic violence
and were addicted to methamphetamine. Eventually they were
reduced to living in their living room with an electric stove
for heat. In December 2013 Jones acquired a bottle of
butalbital, a migraine drug for which he had no prescription.
After he and Clark took a large number of these pills, a fire
started in the house they shared and spread rapidly. Clark
died on the living room couch.
the fire had started, Jones walked to the nearby home of the
Sip family from where a family member called the police. When
an officer responded, he was invited inside the Sip house
where he found Jones in the living room. He asked Jones how
the fire had started and where Clark was at the time. Jones
told the officer that Clark had been sleeping on the couch
and that he had thrown a burning blanket over her. He
explained that he was "sick of the shit she put me
through" and that she had "been nothing but cruel
to me." Jones then walked into the kitchen and tried to
stab himself. Two officers were able to stop him and put him
in handcuffs. While he was led to their police car Jones told
them, "You finally fucking got me." When an officer
asked him what he meant, Jones responded, "That's
all you're getting. I hope I get the max."
next day officers tried to question Jones after reading him
his Miranda rights. They told him that Clark was dead and
they needed to talk. Jones responded that he had nothing to
say and that he wanted to end the interview. Nevertheless, he
went on to volunteer that "she's a wicked bitch and
that's it." Jones later unsuccessfully moved to
suppress these statements after he had been charged with
second degree murder.
investigator R. Paul Bieber appeared at trial as an expert
witness for Jones. Bieber's initial disclosure had stated
that he would testify about the area where the fire started,
whether it had been intentionally lit, and whether the
government expert's investigation had been influenced by
cognitive bias. After the government moved to exclude
Bieber's testimony, the defense submitted two amended and
more detailed disclosures. The district court decided to
admit Bieber's testimony about the origin and cause of
the fire, but not about the potential cognitive bias of the
government's expert which had not been mentioned in
either of Bieber's amended disclosures. Jones was
convicted of second degree murder and was sentenced to 324
months imprisonment after the district court applied a
vulnerable victim enhancement. Jones appeals.
argues that the district court committed reversible error by
strictly limiting Beiber's testimony to the opinions he
had provided in his final expert disclosure under Federal
Rule of Criminal Procedure 16(b)(1)(C). The parties dispute
the standard of review. The government argues that since
Jones had not provided an offer of proof for Bieber's
excluded testimony, that exclusion cannot be reviewed or at
least only for plain error.
record shows, however, that Jones did make an offer of proof
on Bieber's excluded testimony and thus preserved the
issue for appellate review. Jones argues that we should
review de novo the exclusion of his expert testimony because
it denied him the right to present a defense. Our
longstanding precedent makes clear, however, that the
standard is abuse of discretion. See United States v.
Coutentos, 651 F.3d 809, 820 (8th Cir. 2011). Rule
16(b)(1)(C) required Jones to disclose a written summary of
the testimony Bieber intended to offer, describing
Bieber's "opinions, the bases and reasons for those
opinions, and [his] qualifications." Fed. R. Crim. P.
16(b)(1)(C). If a party fails to make an adequate expert
disclosure, the district court may "prohibit that party
from introducing the undisclosed evidence." Fed. R.
Crim. P. 16(d)(2).
provided his first expert disclosure to the government on
February 13, 2015. In that disclosure, Bieber stated that he
would testify about what caused the fire, where it
originated, whether it had been started intentionally, and
"the presence and influence of domain-irrelevant
information" such as cognitive bias which might have
affected the government expert's investigation. After the
government moved to preclude Bieber's testimony, he
provided an amended disclosure on February 24, which was the
day before the pretrial conference. In that disclosure,
Bieber stated that he planned to testify that the cause and
specific origin of the fire could not be determined
scientifically and that any "conclusions as to the