United States of America v. James Ernest Lespier

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4266
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JAMES ERNEST LESPIER,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Bryson City. Martin K.
Reidinger, District Judge. (2:10-cr-00009-MR-DLH-1)
Argued: May 17, 2013 Decided: August 6, 2013
Before TRAXLER, Chief Judge, KING, Circuit Judge, and HAMILTON,
Senior Circuit Judge.
Affirmed by published opinion. Judge King wrote the opinion, in
which Chief Judge Traxler and Senior Judge Hamilton joined.
ARGUED: Milton Gordon Widenhouse, Jr., RUDOLF, WIDENHOUSE &
FIALKO, Chapel Hill, North Carolina, for Appellant. Amy
Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville,
North Carolina, for Appellee. ON BRIEF: Anne M. Tompkins,
United States Attorney, Charlotte, North Carolina, for Appellee.

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KING, Circuit Judge:
Following a six-day jury trial in the Western District of
North Carolina, James Ernest Lespier was convicted of two
offenses arising from the killing of his ex-girlfriend on the
reservation of the Eastern Band of Cherokee Indians. Count One
of the two-count indictment alleged that Lespier committed
first-degree murder, in violation of 18 U.S.C. §§ 1111 and 1153.1
Count Two alleged that he used a firearm during and in relation
to a crime of violence, namely murder, in contravention of 18
1 Section 1153 of Title 18 provides that “[a]ny Indian who
commits . . . murder . . . within the Indian country[] shall be
subject to the same law and penalties as all other persons
committing [murder], within the exclusive jurisdiction of the
United States.” Murder is defined in § 1111(a) as “the unlawful
killing of a human being with malice aforethought.” That
provision then distinguishes between first- and second-degree
murder, providing that
[e]very murder perpetrated by poison, lying in wait,
or any other kind of willful, deliberate, malicious,
and premeditated killing; or committed in the
perpetration of, or attempt to perpetrate, any arson,
escape, murder, kidnapping, treason, espionage,
sabotage, aggravated sexual abuse or sexual abuse,
child abuse, burglary, or robbery; or perpetrated as
part of a pattern or practice of assault or torture
against a child or children; or perpetrated from a
premeditated design unlawfully and maliciously to
effect the death of any human being other than him who
is killed, is murder in the first degree.
Any other murder is murder in the second degree.
Under § 1111(b), first-degree murder is punishable “by death or
by imprisonment for life,” and second-degree murder by
“imprison[ment] for any term of years or for life.”

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U.S.C. § 924(c)(1)(A)(iii) and (j)(1). For those convictions,
Lespier received two consecutive life sentences.
On appeal, Lespier challenges the district court’s denial
of judgments of acquittal, two of the court’s evidentiary
rulings, and its decision not to instruct the jury on the
lesser-included offense (on Count One) of second-degree murder.
As explained below, the court properly denied the acquittals and
did not err in its evidentiary rulings. Although the court
should have instructed on the second-degree murder offense, such
error was invited by Lespier and cannot be used to disturb his
convictions or sentences. Consequently, we affirm.
I.
A.
Lespier’s victim was his ex-girlfriend Mandi Smith, with
whom he had a three-year-old son.2 On May 17, 2010, Lespier, an
enrolled member of the Eastern Band of Cherokee Indians, spent
the day fishing with his friend Bill Caley and Smith. That
evening, Lespier hosted a fish fry at his residence, located in
Indian country within the boundaries of the Eastern Cherokee
reservation. The festivities were disrupted, however, when
2 We recite the facts in the light most favorable to the
prosecution, the prevailing party at trial. See United States
v. Singh, 518 F.3d 236, 241 n.2 (4th Cir. 2008).

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Lespier and Smith began arguing, which prompted Lespier to give
Caley a ride home from the party. After returning to his
residence, Lespier shot Smith in the back of the head with a .38
caliber revolver, killing her instantly.
At about 1:16 a.m. on May 18, 2010, Lespier called 911,
screaming incomprehensibly but ultimately conveying the message
that Smith had been shot and was dead. Around 1:30 a.m., police
officers responded to the 911 call and encountered Lespier as he
walked out of his home. Lespier “was covered in blood,” J.A.
328,3 and officers understood little of what he was saying.
Indeed, the blood on Lespier’s back was so thick that it “seemed
like it was motor oil,” id. at 330, and the officer who
handcuffed Lespier “got blood all over his uniform and hands,”
id. at 351.
After handcuffing Lespier, the officers went inside his
residence, where they found Smith lying face-up on the floor.
Smith was clad only in her underwear and socks, and one of the
socks was rolled down off of her heel. She had blood on and
about her head, the front of her body, and her back, and the
officers could hear a child screaming upstairs. Once they had
secured the crime scene, one of the officers retrieved Lespier’s
3 Citations herein to “J.A. ___” refer to the contents of
the Joint Appendix filed by the parties in this appeal.

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and Smith’s son from an upstairs bedroom, covered the little
boy’s head, and carried him out of the home.
Upon examining Smith’s body, the paramedics found a single
gunshot wound on the back of her head. There was a large amount
of blood under the back of Smith’s head, and her wound was
“obvious[ly]” an injury that was “not survivable.” J.A. 369.
Smith’s skin was also “mottled,” indicating that “the blood had
had time to pull away from her skin and pool in other parts of
her body or bleed out completely.” Id. at 370. In addition,
there was “a lot of blood around [her] torso” and on the floor.
Id. Based on “[s]wirl marks in the blood that were somewhat
dry,” it appeared as though the crime scene “had been cleaned
up.” Id. at 370, 383. A .38 caliber revolver was found under
Smith’s left leg, and a single oxycodone pill, in a plastic
baggie, lay near her right armpit.
Several shots appeared to have been fired into the walls of
the home and, on the sofa immediately beside Smith’s body,
officers discovered an unloaded shotgun with a fresh crack in
the wooden stock. While securing the shotgun, a five-inch piece
of wood broke off the stock. Blood had also been deposited on
the door frame and doorknob leading into the house, on the deck,
and on a set of keys in front of the entertainment center in the
living room.

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In a closet near the stairwell, officers located a gun safe
containing prescription pills and ammunition. According to
Smith’s stepfather, Frazier Price, Lespier had shown him two
firearms in the safe a couple of days before the shooting. At
that time, Lespier advised Price that “[h]e always kept [the
firearms] locked in the safe” when Smith was around because she
had stolen money and pills from him. J.A. 1105. Finally, in
the driveway connected to the home, and “jammed up underneath
. . . the front end of a car,” officers noticed a travel bag
with a torn strap. Id. at 524. The bag contained clothing and
makeup belonging to Smith.
During the investigation, an FBI firearms toolmark examiner
tested the .38 revolver and ammunition using ballistics gel.
The FBI expert determined that the muzzle of the revolver was
between five and fifteen centimeters from Smith’s skin at the
time of the fatal gunshot. Another FBI expert found gunshot
residue on both Smith and Lespier, indicating that they had each
handled or been in close proximity to a weapon being fired.
Dr. John Davis, who conducted an autopsy of Smith’s body,
concurred that the wound inflicted by the .38 revolver was not a
“contact gunshot wound,” but was inflicted from an
“intermediate” distance, that is, “somewhere between contact and
distant.” J.A. 714. Relevant to the blood found on Lespier,
Davis said that Smith’s heart had stopped beating immediately

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after she was shot, causing her blood to drain only by gravity,
rather than through spurting or pumping. Davis explained that
an individual who attempted CPR, as Lespier would later claim to
have done, would not have blood on his front side, because there
was no source of bleeding on the front of Smith’s body. In
addition, Davis stated that the mottled appearance of Smith’s
skin would take “at least a couple of hours to set in.” Id. at
770. Finally, Dr. Davis calculated the trajectory of the
gunshot that had killed Smith. The shot, which entered the back
of her neck three centimeters below the base of the skull and
two centimeters left of the midline, inclined from her left to
right by ten degrees and upward by thirty degrees.
In addition to the fatal gunshot wound, Smith had fresh
abrasions on the inside of her right forearm, and a “significant
localized hematoma” on the top of her head. J.A. 716. Dr.
Davis opined to the jury that the strap of the travel bag found
in the driveway could have caused the abrasions on the inside of
Smith’s arm, and that the hematoma found on Smith’s head was
fresh and had been inflicted by something flat.
B.
In the hours, days, and months following Smith’s murder,
Lespier gave the authorities and others several exculpatory
versions of the relevant events. Because his shifting accounts
of what occurred played a central role in Lespier’s prosecution

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and trial, we briefly summarize such statements, highlighting
their inconsistencies.
While still at the scene of Smith’s murder in the early
morning hours of May 18, 2010, Officer Cherie Dennis asked
Lespier to explain what happened, recording his statement
(hereinafter the “first statement”). In his first statement,
Lespier said that, earlier that night, he had tried to take a
pill from Smith. When he did so, Smith seized his .38 revolver
and started shooting, leading to her accidental death:
She got mad because I tried to take a pill from her.
She took my gun and started shooting all over the
house. I tried to tell her “Please stop, please
stop.” My little boy started screaming and crying. I
keep my gun right inside the little door. It’s a
closet where I keep all my guns. She grabbed my
pistol. She had shot like four or five shots left.
It went off when we started wrestling back and forth
over the gun. We fell on the floor and it went off
and she started bleeding, blood, pouring blood, from
the back of the head. I tried to tell her to stop. I
was laying on the couch when she started shooting.
She was . . . shooting above my head. When I grabbed
her, I thought her arm with the gun was away from her.
When I asked her to stop, she yelled at me, “Give me
my pill back.” My son was upstairs.
J.A. 354-55. Officer Dennis then transported Lespier to the
police station, where she noticed that that the “entire seat” of
her patrol car was covered in blood. Id. at 351-52.
At approximately 4:00 a.m. on May 18 — less than three
hours after the 911 call — FBI Agent Randy Cosby arrived at the
police station and met with Lespier, who was yet “covered in

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blood from head to toe.” J.A. 445. Cosby collected Lespier’s
clothing, permitted him to wash, and began to interview him
around 9:00 a.m. (the “second statement”). In his second
statement, Lespier added several new details and revised others.
Lespier recounted that Smith sat down in the recliner in the
living room, and that she pointed the .38 revolver at him
shortly thereafter. Smith then fired off to Lespier’s left
side, demanding between shots that Lespier return her pill.
Consistent with his first statement, Lespier recounted that he
was able to “grab hold of [Smith] and struggle with her,” and
that they fell to the ground, with Smith underneath him. Id. at
454. On top of Smith, still struggling for the .38 revolver,
Smith’s arms went above her head and, as she attempted to kick
Lespier, “the gun discharged,” and Smith grew still. Id. at
454-55. Lespier then added that he attempted to give Smith
mouth-to-mouth resuscitation, and called 911 when his efforts
were unsuccessful. Lespier told Cosby that he did not know that
the shotgun stock had been cracked, that he kept the shotgun
lying on the top of his living room couch, and that he left it
unloaded when his son was in the home. Lespier gave no
indication that the shotgun had been used in the struggle.
After a short break at the police station, Detective Mary
Lambert proceeded to interview Lespier. Lespier began speaking
with Lambert around 11:00 a.m., again adding new details and

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changing others (the “third statement”). Though his second
statement had Lespier and Smith struggling briefly on the floor,
in his third statement Lespier recounted that “as they hit the
floor, the gun went off.” J.A. 828-29. Lespier also related
that, when he and Smith fell, his forearm struck the side of her
face, and that he thought he had broken her neck. Lespier
explained that he then put his finger into the hole in Smith’s
neck, adding that the revolver was in Smith’s right hand and
that he did not touch it.
At Detective Lambert’s suggestion, Lespier agreed to
reenact his struggle with Smith, using Lambert’s body to
illustrate how Smith may have shot herself. In unsuccessfully
attempting to do so, Lespier manipulated Lambert’s wrist into a
painful position, prompting Lambert to stop the reenactment. At
that point, Lespier “got real emotional” and asserted again that
he and Smith “went to the floor and the gun went off.” J.A.
832. In making his third statement, Lespier first asserted that
he had grabbed the shotgun, and that it may have rolled down the
back of the living room couch.
Detective Lambert then continued her interview, asking
Lespier to go over his story again, and explaining that she
“wanted to make sure that [she] was clear on what he was
actually saying.” J.A. 838. Lespier complied (making his
“fourth statement”), recounting that Smith had “embarrassed” him

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at the fish fry by “running her mouth” and “[bringing] the pill
up again.” Id. at 843, 927. Lespier added that he, Smith, and
their son took Bill Caley home after the neighbors had left the
fish fry and that, upon returning to the residence, Lespier put
their son to bed. Back downstairs, he and Smith discussed
getting back together, and, at one point, Lespier told Smith
that she was “just mad because [her] future hubby outdid [her]
again fishing.” Id. at 845. Lespier elaborated that Smith got
up and “went crazy,” brandishing the .38 revolver and telling
Lespier to give her her “f-ing pill.” Id. at 928. At that
point, Lespier decided “to shoot her in the leg” because “[he]
was scared. [He] thought she was going to shoot [him].” Id. at
846. Rather than shoot Smith, however, Lespier claimed that he
“slung the shotgun at her, at her leg.” Id. Smith then fired
at him and, while he was trying to get the revolver from her,
“they went to the floor.” Id. Lespier added that Smith tried
to bite him, and he asked Lambert to look for bite marks on his
forearm, which she did not find. In his fourth statement,
Lespier revealed that he “must have” picked up the revolver, and
indicated that he did not think Smith was dead. Id. Though
Lambert did not ask whether the shotgun had discharged, Lespier
said that “[t]he shotgun didn’t go off in the house.” Id. at
841.

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Agent Cosby then conducted another interview, which began
around 1:00 p.m. on May 18 and lasted approximately an hour (the
“fifth statement”). Lespier’s account of his struggle with
Smith changed yet again. In his fifth statement, Lespier
recounted that he was straddling Smith during the struggle,
standing over her while she was on her back. While atop Smith,
“[Lespier] grabbed the gun and pulled it toward his chest” in an
“upward motion.” J.A. 459. During “that motion the gun
discharged, and she laid there still, unresponsive.” Id.
For whatever reason, Lespier was released from police
custody later in the day on May 18. That evening, he talked to
his friend Bill Caley and, in an entirely new version of the
shooting (the “sixth statement”), told Caley that Smith “was
standing there with a pistol pointing at him” as he came through
the door of Lespier’s house after having given Caley a ride
home. J.A. 402. According to his sixth statement, Lespier
repeatedly asked Smith what she was doing, then “grabbed the
gun,” after which “they went to wrestling over the gun . . . and
they fell and the gun went off.” Id.
Dr. Davis completed his autopsy of Smith’s body the
following day (May 19, 2010), and the inconsistencies identified
between Davis’s findings and Lespier’s various exculpatory
statements prompted the authorities to charge Lespier with
murder. Lespier turned himself in that day. On June 1, 2010, a

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federal grand jury returned a two-count indictment charging
Lespier in Count One with second-degree murder and in Count Two
with the use of a firearm in relation to a crime of violence.
Six months later, on December 7, 2010, the grand jury returned a
superseding indictment, the operative indictment in this case.
Count One alleged that Lespier had committed first-degree
murder, and Count Two realleged that he had used a firearm in
relation to a crime of violence.4
While in custody awaiting trial, Lespier described the
shooting of Smith to his fellow inmate Mitchum Turpin. Lespier
insinuated to Turpin that he waited some time after the shooting
before calling 911, and admitted that he “left the blood on his
face so when they showed up they would be able to see it.” J.A.
961.
4 Consistent with the requirements of 18 U.S.C. §§ 1111 and
1153, see supra note 1, the indictment alleged in Count One that
[o]n or about the 18th day of May, 2010, in Jackson
County, in Indian country, that is within the
boundaries of the Eastern Band of Cherokee Indians
reservation, and within the Western District of North
Carolina, [Lespier,] an Indian, did unlawfully kill
another human being with malice aforethought, and did
so willfully, deliberately, maliciously, and with
premeditation.
J.A. 14.

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C.
Several months prior to the trial, the prosecutors notified
Lespier’s lawyers that they intended to present evidence,
pursuant to Federal Rule of Evidence 404(b), of Lespier’s prior
threats and physical violence against Smith. Specifically, the
prosecutors sought to introduce ten instances of domestic
violence and four threats of violence.
Lespier opposed the use of any Rule 404(b) evidence, and
the district court considered and ruled on the motion on May 31,
2011, the first day of trial. After consideration of the
proffered evidence and the applicable legal principles, the
court excluded certain prior bad acts and reserved judgment on
others, conditioned on the prosecutors’ ability to establish a
proper foundation. Ultimately, the court permitted the
evidentiary use of certain threats and physical violence by
Lespier against Smith in the years leading up to her murder.
Smith’s sister, Tasha, told the jury that she saw Lespier shove
Smith through a glass window, resulting in gashes and cuts on
Smith’s back. Tasha also described an incident when Lespier
grabbed a heavy wooden mail holder and “turned and threw it at
[Smith],” hitting her “in the area of the head.” J.A. 1033. In
addition, Tasha recounted that Lespier told her that he hated
Smith, once going so far as to threaten “to put rat poison in
her food.” Id. at 1038. Lespier also said to Tasha that he

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“could just kill [Smith], strangle her.” Id. Finally, Tasha
described a horrifying experience when Smith and her son came to
stay with Tasha after a fight with Lespier. Lespier called
Smith repeatedly until, when Smith finally answered (on
speakerphone), Lespier threatened to come to Tasha’s house, tie
Smith to a chair, shoot their son in front of her, and finally
“shoot [Smith] and then turn the gun on himself.” Id. at 1042.
Smith’s grandmother, Dorothy Conner, recounted a violent
incident that took place at her home on Mother’s Day in 2009.
While cooking outside on a grill, Conner saw Smith run out of
the house, pursued by Lespier with a knife, while Smith carried
their son in her arms. Bill Caley, Lespier’s friend, told the
jury that on one occasion, Lespier hung up on Smith and stated,
“Need to shoot that bitch in the face.” J.A. 401. The trial
court repeatedly instructed the jury that the Rule 404(b)
evidence could be considered only for the limited purposes of
Lespier’s intent and the absence of an accident, that such
evidence was not relevant to Lespier’s character, and that the
jury could not infer, based on character, that Lespier may have
committed the acts charged in the indictment.5
5 During the presentation of the Rule 404(b) evidence, and
again during its charge to the jury, the district court gave the
following instruction — always without objection — in
substantially identical terms:
(Continued)

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D.
Leading up to trial, on May 12, 2011, Lespier notified the
government of his intent to call two expert witnesses. First,
Lespier desired to offer evidence from a “human biomechanical
expert . . . to present a computer animation depicting the event
in question to show the possibility that the event did in fact
occur as the Defendant described in statements given to law
enforcement.” J.A. 20-21. Second, Lespier intended to call “an
expert in human psychology to offer testimony concerning the
alleged inconsistencies in the statements made by the Defendant
and to offer an opinion as to possible reasons for such alleged
[T]his evidence has been admitted . . . for the
limited purpose of your deciding whether or not the
defendant harbored the intent to kill Ms. Smith on the
date in question, May the 18th, 2010, or that the
incident at issue in this case was not an accident.
You may not, however, consider this as evidence of
bad character. You may not make any inference based
upon the defendant’s character that he may have
committed the acts charged in this case. Even if you
find that the defendant may have committed such acts
in the past, you may not consider this evidence of
these other acts as a substitute for proof that the
defendant committed the crime[s] charged and you may
not use this evidence to conclude that the defendant
has a bad character or has any propensity to commit
crimes of the nature as charged in this case.
J.A. 1122; see also id. at 1030-31, 1036, 1038-39, 1044-45,
1484-85.

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inconsistencies.” Id. at 20. The government opposed only the
psychology expert.6
The district court addressed the issue of the psychology
expert on the first day of trial, by which time defense counsel
had produced a report explaining that the expert’s testimony
would focus on the neurological effects of extended sleep
deprivation. After reviewing the report, the court agreed with
the government and excluded the psychology expert’s testimony,
ruling that although Lespier’s lawyers could argue for
discounting inconsistencies in Lespier’s exculpatory statements,
the proposed expert testimony would invade the province of the
jury. The jury then heard, over the course of six days, the
trial evidence summarized above.
E.
At the conclusion of the prosecution’s evidence, and again
at the close of all the evidence, Lespier unsuccessfully sought
judgments of acquittal. After denying the renewed acquittal
6 The government did not challenge the admissibility of
Lespier’s biomechanics expert, who essentially sought to
contradict Dr. Davis’s opinion that Lespier’s account was
“inconsistent with the physical facts.” J.A. 740. While we are
obliged to credit Dr. Davis’s account — because it was accepted
by the jury — we note that Lespier’s biomechanics expert was
impugned at trial. During cross-examination, Lespier’s expert
admitted that the animation he created did not “have [Smith]
holding the gun at all” but instead “had her hand placed in a
position close to the gun,” and that he did not “know exactly
how [Smith] fired the weapon.” Id. at 1289.

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motion, the district court turned to issues relating to jury
instructions. Lespier opposed an instruction, pertinent to
Count One, which would permit the jury to convict on the lesser-
included offense of second-degree murder. More specifically,
his lawyer explained that Lespier was not “asking for second
degree” and characterized the proposed instruction as an attempt
by “the government to change the rules now that they’ve indicted
him on first degree.” J.A. 1347. When the court asked if
Lespier wanted the case to “go to the jury on first degree and
only first degree,” his lawyer again said that “[t]hey charged
him, we’re standing trial for that, and that’s what we want.”
Id. at 1350. The government argued in favor of a second-degree
murder instruction, asserting that it was “not entirely up to
the defendant”; that both “first degree and the lesser included
of second degree ought to be submitted”; and that the court
should submit to the jury “every lesser included that the
evidence supports.” Id. at 1359.
Shortly thereafter, Lespier’s lawyer reiterated his
client’s opposition to a second-degree murder instruction,
urging the district court to confirm Lespier’s desire in that
regard. The court then questioned Lespier himself, explaining
that his lawyer had informed the court that Lespier “[did] not
seek for a lesser included offense to be submitted to the jury,”
which would mean that “the jury would decide simply that

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[Lespier was] either guilty of first-degree murder or not
guilty,” and “would not be given the opportunity to convict as
to some lesser offense, such as second-degree murder or possibly
voluntary manslaughter.” J.A. 1373-74. Lespier then confirmed
that he had discussed the issue with his counsel, and that it
was his personal decision to submit Count One to the jury on the
first-degree murder charge only, opposing any instructions on
the lesser-included offense. Before concluding on the point,
the court again asked Lespier to confirm that it was his own
decision to proceed in that manner. Lespier responded, “Yes,
sir, Your Honor, it is.” Id. at 1374.
After a brief recess, the government renewed its request
for a second-degree murder instruction, contending that this
Court’s unpublished decision in United States v. Silvia
supported its position. See No. 88-5153 (4th Cir. July 31,
1989) (unpublished). The court rejected Silvia, instead
interpreting our decision in United States v. Baker, 985 F.2d
1248 (4th Cir. 1993), to support the proposition that a trial
court may decline a lesser-included offense instruction
requested by the prosecution when the defendant objects.
Accordingly, the court instructed the jury that it could convict
Lespier on Count One only if it found the elements of first-
degree murder.

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In closing, the prosecution relied extensively on the
various conflicting exculpatory statements made by Lespier,
asserting that Lespier “didn’t tell you anything — he didn’t
even tell you the same story, much less something that was
believable or truthful.” J.A. 1452.7 The government set forth
its own version of the relevant events, suggesting inferences
that the jury could draw from the evidence. The prosecution
theorized that Smith had attempted to leave Lespier’s residence,
making it to the driveway before having her bag ripped from her
arm by Lespier. Lespier then clubbed Smith over the head with
the shotgun, cracking its stock and causing the deep bruising
found by the medical examiner. Lespier had retrieved the .38
revolver from the locked safe, and simply executed Smith by
shooting her at close range in the back of the head. After
that, Lespier “dragged her a little bit and made that sock come
7 Pertinent to the government’s theory that Lespier had
fabricated his exculpatory statements, the district court
instructed the jury that
[w]hen a defendant voluntarily offers an explanation
or voluntarily makes some statement tending to show
his innocence, and if you, the jury, find the
defendant knew this statement or explanation was
false, then you, the jury, may consider this as
showing a consciousness of guilt on the part of the
defendant, since it is reasonable to infer that an
innocent person does not usually find it necessary to
invent or fabricate an explanation or statement
tending to establish his innocence.
J.A. 1481.

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up,” then got blood all over his back by “flipping [Smith] over
the shoulder, [with] blood draining down out of the hole, down
his back.” Id. at 1460. Finally, Lespier fired multiple shots
into the walls of his residence in order to support his
fabricated stories.
Accepting the prosecution’s evidence as sufficient, the
jury found Lespier guilty of both charged offenses, including
first-degree murder. On March 29, 2012, Lespier was sentenced
to life imprisonment on each count, to be served consecutively.
Lespier timely noted this appeal, and we possess jurisdiction
pursuant to 28 U.S.C. § 1291.
II.
Lespier raises three appellate contentions. First, he
challenges the district court’s denial of judgments of
acquittal. Second, Lespier maintains that the court abused its
discretion in (1) permitting the introduction of evidence,
pursuant to Rule 404(b) of the Federal Rules of Evidence, of his
prior threats and violence against Smith, and (2) precluding his
psychology expert’s testimony on the effects of sleep
deprivation. Finally, in a reversal of his failed trial
strategy, Lespier now asserts that the trial court should have
instructed the jury that it could convict on the lesser-included
offense of second-degree murder.

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A.
We begin with the district court’s denial of judgments of
acquittal, which we review de novo. See United States v.
Kellam, 568 F.3d 125, 132 (4th Cir. 2009). When a defendant
challenges the sufficiency of the evidence, we will sustain a
guilty verdict if there is substantial evidence to support it,
drawing all reasonable inferences therefrom in favor of the
prosecution. See United States v. Whitfield, 695 F.3d 288, 310
(4th Cir. 2012).
In challenging the district court’s denial of acquittals,
Lespier characterizes the evidence as legally insufficient in
two respects. First, he maintains that there was no evidence
suggesting that he, rather than Smith, had pulled the trigger of
the .38 revolver. Second, Lespier asserts that there was no
evidence to support the inference that his fatal shooting of
Smith was a premeditated act.
Each of the foregoing contentions is readily refuted. In
the light most favorable to the prosecution, the evidence
permitted the jury to find ample incriminating facts supporting
the two convictions, including the following:
• In the past, Lespier had physically abused and
repeatedly threatened to kill Smith;
• On the evening of the fatal shooting, Smith
sought to leave Lespier’s home, proceeding as far
as the driveway before a bag containing makeup
and clothing was ripped from her arm;

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• Lespier hit Smith on the head with the shotgun
with sufficient force to crack its stock;
• Lespier had retrieved the murder weapon, the .38
caliber revolver, from a locked safe;
• Based on the trajectory of the gunshot that
killed Smith, a self-inflicted wound was not
possible;
• Lespier had tampered with the crime scene, moving
Smith’s body, wiping up her blood, and planting
the revolver and a pill near her body;
• Lespier waited some period of time before calling
911; and
• Lespier made multiple false exculpatory
statements seeking to explain the relevant
events.
Predicated on the foregoing, together with the balance of the
record, it is clear that the government presented substantial
evidence proving that Lespier committed murder in the first
degree, as alleged in Count One. The district court therefore
properly denied judgments of acquittal.
B.
Next, we consider Lespier’s evidentiary contentions, i.e.,
that the district court erroneously admitted evidence pursuant
to Rule 404(b) and improperly excluded Lespier’s psychology
expert. We review those evidentiary rulings under the abuse of
discretion standard. See United States v. Rooks, 596 F.3d 204,
209-10 (4th Cir. 2010).

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1.
Lespier maintains that the district court erred in its Rule
404(b) ruling relating to his prior threats and acts of violence
against Smith. The government responds that the evidence was
properly admitted, both to show that Lespier intentionally
murdered Smith and to disprove any theory that Smith had
accidentally shot herself.
Rule 404(b)(1) provides that “[e]vidence of a crime, wrong,
or other act is not admissible to prove a person’s character in
order to show that on a particular occasion the person acted in
accordance with the character.” Evidence of prior bad acts,
however, “may be admissible for another purpose, such as proving
motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake, or lack of accident.” Fed. R.
Evid. 404(b)(2). Evidence offered under Rule 404(b), like all
other evidence, must be relevant and is subject to assessment
under Rule 403.8 We have formulated a four-part test for
assessing the admissibility of evidence offered under Rule
404(b):
8 Federal Rule of Evidence 403 provides that “[t]he court
may exclude relevant evidence if its probative value is
substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading
the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.”

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(1) the prior-act evidence must be relevant to an
issue other than character, such as intent; (2) it
must be necessary to prove an element of the crime
charged; (3) it must be reliable; and (4) . . . its
probative value must not be substantially outweighed
by its prejudicial nature.
United States v. Queen, 132 F.3d 991, 995 (4th Cir. 1997)
(internal quotation marks omitted). As we have explained, “Rule
404(b) is an inclusive rule, admitting all evidence of other
crimes or acts except that which tends to prove only criminal
disposition.” Rooks, 596 F.3d at 211 (internal quotation marks
omitted).
Simply stated, the district court did not abuse its
discretion in admitting the Rule 404(b) evidence of Lespier’s
prior threats and acts of physical violence against Smith. Such
evidence was relevant to Lespier’s intent and to show that Smith
did not shoot herself by accident or mistake, thus fulfilling
the first prong of Queen. With regard to Queen’s second prong,
the challenged evidence was necessary to prove the disputed
element of Lespier’s intent. The third Queen prong is also
plainly satisfied: The court thoroughly inquired into the
reliability of each item of Rule 404(b) evidence that was
presented to the jury, and it did not err in that respect.
Finally, on the fourth prong, the probative value of the Rule
404(b) evidence was substantial, and was not outweighed by
unfair prejudice or any of the Rule 403 criteria. Indeed, any

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risk of unfair prejudice was effectively mitigated by the
court’s carefully framed limiting instructions regarding proper
consideration of such evidence. See United States v. White, 405
F.3d 208, 213 (4th Cir. 2005) (“[A]ny risk of such prejudice was
mitigated by a limiting instruction from the district court
clarifying the issues for which the jury could properly consider
[the Rule 404(b)] evidence.”).
2.
Lespier also contends that the trial court committed
reversible error by excluding the evidence of his psychology
expert, who would have pointed to sleep deprivation as an
explanation for the various inconsistencies in Lespier’s
statements. Lespier emphasizes that, because those
inconsistencies were used to impeach his statements’
credibility, the exclusion of his expert prejudiced his ability
to mount a defense. The government counters that expert
testimony on the psychological effects of sleep deprivation must
be treated with the same caution that courts have applied to
evidence on the fallibility of eyewitness testimony, and that
the court did not abuse its discretion in excluding the expert.
Alternatively, the government asserts that any error was
harmless.
Lespier is correct in arguing that the Constitution
guarantees every accused “a meaningful opportunity to present a

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complete defense.” Crane v. Kentucky, 476 U.S. 683, 690 (1986)
(internal quotation marks omitted). And the Supreme Court has
explained that “the right to present a defense . . . is a
fundamental element of due process.” Washington v. Texas, 388
U.S. 14, 19 (1967). It does not follow, however, that the
exclusion of Lespier’s psychology expert somehow contravened the
Constitution or otherwise amounted to error.
To be admissible, expert testimony must “help the trier of
fact to understand the evidence or to determine a fact in
issue.” Fed. R. Evid. 702(a). The helpfulness requirement of
Rule 702 thus prohibits the use of expert testimony related to
matters which are “obviously . . . within the common knowledge
of jurors.” Scott v. Sears Roebuck & Co., 789 F.2d 1052, 1055
(4th Cir. 1986). The assessment of a witness’s credibility, as
we have explained, is “usually within the jury’s exclusive
purview.” United States v. Dorsey, 45 F.3d 809, 815 (4th Cir.
1995). Thus, in the absence of unusual circumstances, Rule 702
renders inadmissible expert testimony on issues of witness
credibility.
We have recognized a narrow exception to the general rule.
See United States v. Harris, 995 F.2d 532, 534-36 (4th Cir.
1993) (affirming exclusion of expert testimony on validity of
eyewitness identification, but recognizing possible
admissibility of such evidence in narrow circumstances).

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Nevertheless, we agree with the government that, in the typical
case, the effects of sleep deprivation, like problems with
eyewitness identifications, are readily comprehended by jurors
and do not require an expert for their explanation. Simply put,
the trial court did not abuse its discretion in excluding
Lespier’s expert on the basis that his testimony would
“intrude[] on the jury’s role regarding the assessment of the
credibility of witnesses.” J.A. 220.
C.
Finally, we dispose of Lespier’s contention that the
district court erred in declining the prosecutors’ multiple
requests for an instruction on the lesser-included offense of
second-degree murder. We review an alleged instructional error
for abuse of discretion. United States v. Passaro, 577 F.3d
207, 221 (4th Cir. 2009). When a trial court has rejected a
proposed instruction, we will reverse only if that instruction
“(1) was correct; (2) was not substantially covered by the
court’s charge to the jury; and (3) dealt with some point in the
trial so important, that failure to give the requested
instruction seriously impaired the defendant’s ability to
conduct his defense.” Id. (internal quotation marks omitted).
Nevertheless, an error that was not objected to at trial is
generally reviewed only for plain error. See Fed. R. Crim. P.
52(b). Under that standard, “before an appellate court can

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correct an error not raised at trial, there must be (1) ‘error,’
(2) that is ‘plain,’ and (3) that ‘affect[s] substantial
rights.’” Johnson v. United States, 520 U.S. 461, 466-67 (1997)
(quoting United States v. Olano, 507 U.S. 725, 732 (1993)). “If
all three conditions are met, an appellate court may then
exercise its discretion to notice a forfeited error, but only if
(4) the error seriously affect[s] the fairness, integrity, or
public reputation of judicial proceedings.” Id. at 467
(internal quotation marks omitted). In the context of plain
error review, an error that was invited by the appellant “cannot
be viewed as one that affected the fairness, integrity, or
public reputation of judicial proceedings.” United States v.
Gomez, 705 F.3d 68, 76 (2d Cir. 2013). Indeed, recognizing an
invited error would seriously undermine confidence in the
integrity of the courts. See id. (“[T]he fairness and public
reputation of the proceeding would be called into serious
question if a defendant were allowed to gain a new trial on the
basis of the very procedure he had invited.”); see also United
States v. Day, 700 F.3d 713, 727 n.1 (4th Cir. 2012) (“[A]
‘defendant in a criminal case cannot complain of error which he
himself has invited.’” (quoting Shields v. United States, 273
U.S. 583, 586 (1927))).
The government adheres to its position that the requested
instruction on second-degree murder was correct, and that it was

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not covered by the court’s charge to the jury. The government
maintains, however, that the instructional error was invited by
Lespier and thus is not reversible. In response, Lespier does
not dispute that the instructional error was invited, but
contends that an exception to the invited error doctrine applies
in this case.
As an initial matter, we are satisfied that the district
court erred when it relied on United States v. Baker, 985 F.2d
1248 (4th Cir. 1993), for the proposition that a trial court may
decline to instruct on a lesser-included offense that is
supported by the evidence and requested by the prosecution. In
Baker, we simply agreed that “a district court has no discretion
to refuse to give a lesser-included instruction if the evidence
warrants the instruction and the defendant requests it.” Id. at
1259. That decision does not suggest, however, that the
defendant is entitled to veto the prosecution’s request for a
proper instruction on a lesser-included offense.
Indeed, Rule 31 of the Federal Rules of Criminal Procedure
provides, in pertinent part, that “[a] defendant may be found
guilty of . . . an offense necessarily included in the offense
charged.” Though the “lesser included offense doctrine
developed at common law to assist the prosecution,” Rule 31 can
be invoked by either the prosecution or the defense. Keeble v.
United States, 412 U.S. 205, 208 (1973). And neither party is

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entitled to jettison a requested instruction on a lesser-
included offense, provided that “the evidence would permit a
jury rationally to find [the defendant] guilty of the lesser
offense and acquit him of the greater.” Id.; see also United
States v. Silvia, No. 88-5153 (4th Cir. July 31, 1989)
(unpublished) (affirming second-degree murder conviction
premised on lesser-included offense instruction given over
defendant’s objection).
Although we have acknowledged a potential exception to the
invited error doctrine “when it is necessary to preserve the
integrity of the judicial process or to prevent a miscarriage of
justice,” we have likewise rejected the notion that such
circumstances exist where a defendant, “as a matter of sound
trial strategy,” requests an instruction on a lesser-included
offense that the court then gives to the jury. United States v.
Herrera, 23 F.3d 74, 76 (4th Cir. 1994) (internal quotation
marks omitted). The converse is also true; that is, a defendant
who invites error by successfully opposing an instruction on a
lesser-included offense is not entitled to benefit from that
error. Lespier opposed the second-degree murder instruction as
a matter of sound trial strategy, and there is no indication
that this failed strategy threatens the integrity of the justice
system or represents a miscarriage of justice. As such, the

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trial court’s instructional error is not a basis for disturbing
Lespier’s convictions.
III.
Pursuant to the foregoing, the judgment of the district
court is affirmed.
AFFIRMED

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