© 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works.

207 F.3d 1222

207 F.3d 1222, 54 Fed. R. Evid. Serv. 108, 2000 CJ C.A.R. 1645

**(Cite as: 207 F.3d 1222)**

\<YELLOW FLAG\>

United States Court of Appeals,

Tenth Circuit.

**UNITED STATES of America, Plaintiff\--Appellee,**

**v.**

**C. Douglas WOOD, Defendant\--Appellant.**

**No. 99-7008.**

March 29, 2000.

Physician was convicted in the United States District Court for the
Eastern District of Oklahoma of involuntary manslaughter of a patient
under his care at a Veterans Administration hospital, and he appealed.
The Court of Appeals, Lucero, Circuit Judge, held that: (1) evidence
introduced during the government\'s case-in-chief was insufficient to
prove that physician killed patient with premeditation or malice
aforethought when he injected patient with potassium chloride to treat
pulmonary edema, as required for conviction for first-degree or
second-degree murder; (2) physician cannot be convicted of murder simply
for adopting, in an emergency setting, a risky course of action intended
to prolong life that, when carried out, fails to forestall or even
hastens death; (3) evidence was sufficient on charge of involuntary
manslaughter; (4) physician failed to demonstrate violation of due
process by delay in bringing indictment; (5) Rule of Evidence precluding
expert testimony that a defendant had the mental state constituting an
element of the crime charged was violated; (6) expert testimony
concerning the use of potassium chloride in executions and the
euthanasia of animals should have been excluded because its probative
value was substantially outweighed by the danger of unfair prejudice;
and (7) cumulative effect of evidentiary errors and erroneous denial of
motion for judgment of acquittal on the charges of first and
second-degree murder required reversal.

Reversed and remanded.

West Headnotes

**\[1\] Criminal Law k1139**

110k1139

In reviewing both the sufficiency of the evidence to support a
conviction and a denial of a motion for judgment of acquittal, Court of
Appeals must review the record de novo to determine whether, viewing the
evidence in the light most favorable to the government, any rational
trier of fact could have found the defendant guilty of the crime beyond
a reasonable doubt. Fed.Rules Cr.Proc.Rule 29(a), 18 U.S.C.A.

**\[2\] Criminal Law k562**

110k562

The evidence necessary to support a verdict need not conclusively
exclude every other reasonable hypothesis and need not negate all
possibilities except guilt.

**\[3\] Criminal Law k1134(2)**

110k1134(2)

When reviewing the denial of a motion for judgment of acquittal made at
the close of the government\'s case-in-chief, Court of Appeals looks
only to evidence entered into the record at the time of the motion, even
though the district court could have reserved ruling on the motion until
the jury returned its verdict. Fed.Rules Cr.Proc.Rule 29(b), 18 U.S.C.A.

**\[4\] Homicide k549**

203k549

(Formerly 203k23(1), 203k22(1))

**\[4\] Homicide k657**

203k657

(Formerly 203k22(1))

**\[4\] Homicide k662**

203k662

(Formerly 203k34)

First-degree murder, second-degree murder, and involuntary manslaughter
all involve the unlawful killing of a human being; the difference
between them is the requisite mens rea. 18 U.S.C.A. §§ 1111(a), 1112(a).

**\[5\] Homicide k549**

203k549

(Formerly 203k23(1), 203k22(1))

First-degree murder charge required both malice aforethought and the
specific intent to commit an unlawful killing, while second-degree
murder is a general intent crime that requires only malice aforethought.
18 U.S.C.A. § 1111(a).

**\[6\] Homicide k540**

203k540

(Formerly 203k22(1))

**\[6\] Homicide k542**

203k542

(Formerly 203k22(2))

A killing is committed with the requisite specific intent for
first-degree murder if it is willful, deliberate, malicious, and
premeditated. 18 U.S.C.A. § 1111(a).

**\[7\] Homicide k546**

203k546

(Formerly 203k23(1))

Second degree murder\'s \"malice aforethought\" element is satisfied by:
(1) intent to kill without the added ingredients of premeditation and
deliberation; (2) intent to do serious bodily injury; (3)
depraved-heart; or (4) commission of certain felonies, and malice
aforethought also may be established by evidence of conduct which is
reckless and wanton, and a gross deviation from a reasonable standard of
care, of such a nature that a jury is warranted in inferring that
defendant was aware of a serious risk of death or serious bodily harm,
and the concepts of \"depraved heart\" and \"reckless and wanton, and a
gross deviation from a reasonable standard of care\" are functionally
equivalent in this context. 18 U.S.C.A. § 1111(a).

**\[8\] Homicide k708**

203k708

(Formerly 203k34)

Involuntary manslaughter includes the unlawful killing of a human being
without malice in the commission, without due caution and
circumspection, of a lawful act which might produce death, and the
defendant\'s acts must amount to \"gross negligence,\" defined as wanton
or reckless disregard for human life; \"gross negligence\" describes a
degree of culpability far more serious than tort negligence. 18 U.S.C.A.
§ 1112(a).

**\[9\] Homicide k546**

203k546

(Formerly 203k23(1))

**\[9\] Homicide k657**

203k657

(Formerly 203k23(1), 203k35)

**\[9\] Homicide k665**

203k665

(Formerly 203k35)

The distinction between involuntary manslaughter and second-degree
murder is that the former does not require malice aforethought. 18
U.S.C.A. §§ 1111(a), 1112(a).

**\[10\] Homicide k546**

203k546

(Formerly 203k23(1))

**\[10\] Homicide k657**

203k657

(Formerly 203k23(1))

**\[10\] Homicide k709**

203k709

(Formerly 203k34)

\"Malice aforethought\" required for second-degree murder and \"without
due care and circumspection\" required for involuntary manslaughter both
refer to \"reckless and wanton\" behavior, with the substantive
distinction being the severity of the reckless and wanton behavior:
second-degree murder involves reckless and wanton disregard for human
life that is extreme in nature, while involuntary manslaughter involves
reckless and wanton disregard that is not extreme in nature. 18 U.S.C.A.
§§ 1111(a), 1112(a).

**\[11\] Homicide k1174**

203k1174

(Formerly 203k236(1))

Evidence in murder prosecution, which resulted in conviction on
lesser-included offense of involuntary manslaughter, was sufficient to
prove that physician\'s actions caused patient\'s death, where patient
died immediately after receiving the injection from physician and two
government experts testified that patient died as a result of the
injection. 18 U.S.C.A. § 1112(a).

**\[12\] Criminal Law k753.2(5)**

110k753.2(5)

When ruling on a motion for judgment of acquittal, a district court
should consider not only whether the evidence would be sufficient to
sustain a conviction of the offense charged, but also whether it would
be sufficient to sustain a conviction on a lesser included offense.
Fed.Rules Cr.Proc.Rules 29(a), 31(c), 18 U.S.C.A.

**\[13\] Homicide k1142**

203k1142

(Formerly 203k231)

**\[13\] Homicide k1143**

203k1143

(Formerly 203k232)

**\[13\] Homicide k1146**

203k1146

(Formerly 203k231)

Evidence introduced during the government\'s case-in-chief, taken in the
light most favorable to the government, was insufficient to prove that
physician killed patient with premeditation or malice aforethought when
he injected patient with potassium chloride to treat pulmonary edema, as
required for conviction for first-degree murder or the lesser included
offense of second-degree murder, though the prosecution\'s evidence
indicated that treatment did not comport with general standards, though
physician performed the injection himself after two nurses warned the
proposed dosage exceeded the amount permitted by hospital policy and
recommended by a drug manual, and though there was evidence that
attempts at resuscitation were inadequate. 18 U.S.C.A. § 1111(a).

**\[14\] Homicide k909**

203k909

(Formerly 203k147)

**\[14\] Homicide k910**

203k910

(Formerly 203k147)

Well-intentioned but inappropriate medical care, standing alone, does
not raise an inference that a killing was deliberate, willful, and
premeditated, as required for first-degree murder conviction. 18
U.S.C.A. § 1111(a).

**\[15\] Homicide k908**

203k908

(Formerly 203k145)

Specific intent to kill, supporting first-degree murder conviction, is
properly inferred where the apparent purpose of the lethal act is to
cause the victim\'s death. 18 U.S.C.A. § 1111(a).

**\[16\] Homicide k533**

203k533

(Formerly 203k11)

A physician cannot be convicted of murder simply for adopting, in an
emergency setting, a risky course of action intended to prolong life
that, when carried out, fails to forestall or even hastens death; to
permit a charge of murder with malice aforethought to go to the jury,
that choice must be not only a gross deviation from a reasonable
standard of care, but also extremely reckless and wanton. 18 U.S.C.A. §
1111(a).

**\[17\] Criminal Law k36.6**

110k36.6

That evidence presented during the government\'s case-in-chief in
prosecution of physician for murder of patient was insufficient to prove
premeditation or malice aforethought did not establish that the
government wrongfully prosecuted the first-degree murder charge, where
indictment, valid on its face, was returned by a legally constituted and
unbiased grand jury.

**\[18\] Homicide k1150**

203k1150

(Formerly 203k255(2))

Evidence was sufficient to support physician\'s conviction for
involuntary manslaughter of patient, as the evidence established that
the quantity and speed of the injection by physician of potassium
chloride to treat pulmonary edema exceeded the consensus as to the
maximum beneficial dosage. 18 U.S.C.A. § 1112(a)

**\[19\] Criminal Law k1158(1)**

110k1158(1)

Whether a defendant\'s due process rights were denied by a delay in
bringing an indictment is a question of fact, which the Court of Appeals
reviews for clear error. U.S.C.A. Const.Amend. 5.

**\[20\] Constitutional Law k265**

92k265

When seeking dismissal of an indictment based on pre-indictment delay,
allegedly violating due process, a defendant must establish the
government intentionally delayed for tactical reasons and the delay
caused him actual prejudice. U.S.C.A. Const.Amend. 5.

**\[21\] Constitutional Law k265**

92k265

**\[21\] Indictment and Information k7**

210k7

Physician convicted for involuntary manslaughter of patient failed to
demonstrate either intentional delay or prejudice, so as to establish
violation of due process by delay in bringing indictment, though autopsy
of patient was conducted 42 months after his death, at which time the
body was putrefied, where physician failed to clarify what evidence
might otherwise have been available. U.S.C.A. Const.Amend. 5.

**\[22\] Homicide k1470**

203k1470

(Formerly 203k309(2))

In prosecution in which physician was convicted of involuntary
manslaughter of patient, physician was not entitled to jury instruction
to the effect that it is not unlawful for a physician to adopt one of
several proper methods of treatment; instruction that if jury found the
defendant acted in \"good faith,\" it must return a verdict of not
guilty was an adequate formulation of the defendant\'s theory.

**\[23\] Criminal Law k1153(1)**

110k1153(1)

A district court\'s decision to admit evidence, including expert
testimony, is reviewed under an abuse of discretion standard.

**\[24\] Criminal Law k474.1**

110k474.1

In murder prosecution in which physician was convicted of
lesser-included offense of involuntary manslaughter of patient, expert
testimony, while not cast in precisely the same terminology as the
statute, case law, or instruction, recited the critical components of
mens rea of the offenses charged, in violation of Rule of Evidence
precluding expert testimony that a defendant had the mental state
constituting an element of the crime charged; expert\'s testimony that
physician\'s actions caused patient\'s death, that the death was a
homicide, and that a homicide involves the intentional taking of a
person\'s life expressly inferred that physician acted with specific
intent to kill, required for murder conviction, while testimony that
physician\'s actions were reckless specifically described the mens rea
for involuntary manslaughter. 18 U.S.C.A. § 1112; Fed.Rules Evid.Rule
704(b), 28 U.S.C.A.

**\[25\] Criminal Law k476.6**

110k476.6

In prosecution in which physician was convicted of involuntary
manslaughter of patient after he injected patient with potassium
chloride (KCl) to treat pulmonary edema, expert testimony concerning the
use of KCl in executions and the euthanasia of animals should have been
excluded because its probative value was substantially outweighed by the
danger of unfair prejudice, where the dangers and benefits of KCl in a
clinical setting were adequately established by the balance of the
experts\' testimony. Fed.Rules Evid.Rule 403, 28 U.S.C.A.

**\[26\] Criminal Law k476.6**

110k476.6

In prosecution in which physician was convicted of involuntary
manslaughter of patient after he injected patient with potassium
chloride (KCl) to treat pulmonary edema, testimony of another physician
that he had recurring nightmares of patient\'s \"last gasp\" was more
probative than prejudicial and therefore was properly admitted where the
defense placed at issue such physician\'s ability to accurately recall
the details of patient\'s death, and the testimony was not prejudicial
where defendant did not object to the other physician\'s testimony that
he heard a gasp. Fed.Rules Evid.Rule 403, 28 U.S.C.A.

**\[27\] Criminal Law k1186.1**

110k1186.1

In prosecution in which physician was convicted of involuntary
manslaughter of patient after he injected patient with potassium
chloride (KCl) to treat pulmonary edema, there was cumulative error
requiring reversal, consisting of erroneous denial of motion for
judgment of acquittal on charges of first and second-degree murder and
the erroneous admission of testimony in violation rules precluding
admission of evidence whose probative value is substantially outweighed
by danger of unfair prejudice and precluding expert testimony that a
defendant had the mental state constituting an element of the crime
charged. Fed.Rules Evid.Rules 403, 704(b), 28 U.S.C.A.

**\[28\] Criminal Law k1186.1**

110k1186.1

A cumulative error analysis aggregates all the errors that individually
might be harmless, and analyzes whether their cumulative effect on the
outcome of the trial is such that collectively they can no longer be
determined to be harmless; the analysis must focus on the underlying
fairness of the trial to determine whether one can say, with fair
assurance, after pondering all that happened without stripping the
erroneous action from the whole, that the judgment was not substantially
swayed by the errors, and thus the applicable standard is different than
that applied when determining if the evidence is sufficient to sustain a
verdict.

**\[29\] Criminal Law k1186.1**

110k1186.1

Denial of defendant\'s motion for judgment of acquittal at the close of
the government\'s case-in-chief, thereby permitting the jury to consider
charges of first and second-degree murder, could be considered in
cumulative error analysis even though a district court is permitted to
reserve ruling on a motion for judgment of acquittal until after the
jury returns its verdict and though, in this case, the jury in fact
acquitted defendant of those offenses regarding which his motion was
improperly denied, since the jury, confronted with such serious charges,
might have felt compelled to convict defendant of the lesser offense of
involuntary manslaughter whether or not the government had proven each
element of the crime beyond a reasonable doubt. Fed.Rules Cr.Proc.Rule
29(b), 18 U.S.C.A.

**\*1226** Clark O. Brewster (Guy A. Fortney with him on the briefs),
Brewster, Shallcross & De Angelis, Tulsa, Oklahoma, for the appellant.

Douglas Adam Horn, Special Assistant United States Attorney (Robert B.
Green, United States Attorney with him on the brief), Muskogee,
Oklahoma, for the appellee.

Before SEYMOUR and LUCERO, Circuit Judges and KIMBALL, District Judge.
\[FN\*\]

FN\* The Honorable Dale A. Kimball, District Court Judge for the
District of Utah, sitting by designation.

LUCERO, Circuit Judge.

C. Douglas Wood is a physician who, in 1998, was indicted for the
first-degree murder of Virgil Dykes, a patient under his care at the
Veterans Administration hospital in Muskogee, Oklahoma. The case was
tried to a jury, and submitted on charges of first-degree murder and the
lesser included offenses of second-degree murder and involuntary
manslaughter. A verdict was entered acquitting Dr. Wood of the first and
second-degree murder charges, but convicting him of involuntary
manslaughter. The case comes to us for review on direct appeal. We
exercise jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3231.
Appellant advances several claims of error: (1) denial of his motion for
judgment of acquittal as to all charges; (2) wrongful prosecution; (3)
delay of prosecution; (4) denial of jury instructions on his theory of
the case; (5) admission of expert testimony that stated an opinion as to
the his mental state; and (6) admission of unduly prejudicial testimony.
Concluding that Dr. Wood was denied a fair trial because of cumulative
error, we reverse and remand for retrial on the charge of involuntary
manslaughter.

**I**

We begin with a recitation of the events leading to Dr. Wood\'s
indictment. Virgil Dykes was an 86-year-old man, suffering from severe
abdominal pain when he arrived at the Veterans Administration hospital
in Muskogee, Oklahoma, on February 5, 1994. Dr. Wood had not previously
treated Dykes, but because he was the attending physician that day, he
diagnosed and operated on Dykes to repair a perforation in the proximal
duodenum which had led to diffuse perotonitis. Over the next eight days,
patient Dykes remained under Dr. Wood\'s care in the surgical intensive
care unit. On the morning of February 13, Dr. Glen Lytle, the chief of
surgery, Dr. Rocky Morgan, a fifth-year resident, and Dr. Randall Bass,
a first-year intern, made hospital rounds. A morning blood test revealed
that patient Dykes had an extracellular potassium level of 3.2
milliequivalents (mEq) per liter. That level was below the lower limit
of the range the hospital considered normal\--3.3 to 5.5. At around 9
a.m., Dr. Morgan ordered that patient Dykes be given 40 mEq of potassium
**\*1227** chloride (KCl) to raise his potassium level. Nurse Kinsey
administered the KCl in an elixir form through a nasogastric tube
directly into Dykes\'s stomach. Based on a discussion with Dr. Morgan,
Dr. Bass prescribed Lasix, a diuretic drug commonly used to remove fluid
from a patient\'s lungs, which has the side effect of reducing potassium
levels. Soon after giving patient Dykes the elixir of KCl, Nurse Marla
Kinsey withdrew 170 ccs of fluid from his stomach, which indicated he
was not absorbing the KCl. She then returned approximately 100 ccs of
the fluid to the patient\'s stomach.

Dr. Wood arrived at the hospital at 11 a.m. and, upon reviewing patient
Dykes\'s chest x-rays from earlier that morning, stated that he was
drowning from pulmonary edema\--excess fluid in his lungs. Dr. Wood then
ordered Nurse Kinsey to prepare 40 mg of Lasix and an IV bag with 40 mEq
of KCl in 100 ccs of saline solution. When Nurse Kinsey informed Dr.
Wood that the most rapid rate at which she could administer the KCl
solution was over the course of an hour, he ordered her to draw up a
syringe of 40 mEq of KCl in 30 to 50 ccs of saline. Nurse Kinsey
prepared the KCl solution in a 60 cc syringe, but refused to administer
it, believing it to be dangerous. Nurse Martha Hardesty, who was also
present, told Dr. Wood that hospital policies permitted a maximum dosage
of 40 mEqs of KCl over one hour. Dr. Wood then took the syringe from
Nurse Kinsey and administered the KCl himself. Dr. Bass, Nurse Kinsey,
Nurse Hardesty, and Dr. Wood gave conflicting testimony regarding how
much KCl was administered how quickly.

During the injection the heart monitor flat-lined and patient Dykes
stopped breathing. Dr. Wood stopped injecting and made one or two
precordial thumps (sharp concussions to the chest) in an effort to
restart Dykes\'s heart. Dr. Bass and Nurse Kinsey also engaged in
resuscitation efforts, including chest compressions. After two to four
minutes, Dr. Wood pronounced Dykes dead.

Following nearly four years of investigation, the government obtained an
indictment charging Dr. Wood with first-degree murder in violation of 18
U.S.C. § 1111(a). After the district court denied Dr. Wood\'s motion to
dismiss for prosecutorial delay, the case went to trial. At the close of
the government\'s case, Dr. Wood moved for judgment of acquittal
pursuant to Fed.R.Crim.P. 29(a). The district court denied the motion.
Dr. Wood made another motion for judgment of acquittal at the close of
all evidence, at which time the district court exercised its discretion
to reserve its ruling until after the jury returned its verdict. *See*
Fed. R. Crim P. 29(b). The district court instructed the jury on
first-degree murder as well as the lesser included offenses of
second-degree murder and involuntary manslaughter. The jury returned a
verdict of guilty to the charge of involuntary manslaughter and not
guilty on the greater offenses. Following the jury verdict, Dr. Wood
renewed his Rule 29 motion, which the district court again denied.

Departing downward from the sentencing range applicable under the United
States Sentencing Guidelines, the district court sentenced Dr. Wood to 5
months imprisonment, 36 months supervised release, a \$100 assessment,
and a \$25,000 fine. Dr. Wood appeals his conviction. \[FN1\]

FN1. The district court granted Dr. Wood\'s motion for release and stay
of fine and assessment pending appeal.

**II**

\[1\]\[2\]\[3\] Dr. Wood alleges the district court erred in denying his
motions for judgment of acquittal pursuant to Fed.R.Crim.P. 29(a)
because there was insufficient evidence of premeditation and malice
aforethought to sustain the murder charges and the evidence of gross
negligence is insufficient to support his conviction for involuntary
manslaughter. **\*1228** In reviewing both the sufficiency of the
evidence to support a conviction and a denial of a motion for judgment
of acquittal, this court must review the record de novo to determine
whether, viewing the evidence in the light most favorable to the
government, any rational trier of fact could have found the defendant
guilty of the crime beyond a reasonable doubt. *See United States v.
Schluneger,* 184 F.3d 1154, 1158 (10th Cir.1999), *cert. denied,* 120
S.Ct. 800 (2000); *United States v. Voss,* 82 F.3d 1521, 1524-25 (10th
Cir.1996). Contrary to Dr. Wood\'s assertions, the evidence necessary to
support a verdict \" \'need not conclusively exclude every other
reasonable hypothesis and need not negate all possibilities except
guilt.\' \" *United States v. Wilson,* 182 F.3d 737, 742 (10th Cir.1999)
(quoting *United States v. Parrish,* 925 F.2d 1293, 1297 (10th
Cir.1991)). When reviewing the denial of a motion for judgment of
acquittal made at the close of the government\'s case-in-chief, we look
only to evidence entered into the record at the time of the motion, that
is, when the government rested. *See* Fed.R.Crim.P. 29(b). This is true
even though the district court could have reserved ruling on the motion
until the jury returned its verdict. *See id.*

**A**

\[4\]\[5\]\[6\]\[7\] Before addressing the merits of these arguments, we
pause to delineate the elements of the three degrees of homicide
submitted to the jury: first-degree murder, second-degree murder, and
involuntary manslaughter. All three offenses involve the unlawful
killing of a human being. *See* 18 U.S.C. §§ 1111(a), 1112(a). The
difference between them is the requisite mens rea. First-degree murder,
as applicable to this case, requires both malice aforethought, *see* 18
U.S.C. § 1111(a), and the specific intent to commit an unlawful killing,
*see United States v. Sands,* 968 F.2d 1058, 1064 (10th Cir.1992). A
killing is committed with the requisite specific intent if it is
\"willful, deliberate, malicious, and premeditated.\" 18 U.S.C. §
1111(a). Second-degree murder, by contrast, is a general intent crime,
*see United States v. Soundingsides,* 820 F.2d 1232, 1242 (10th
Cir.1987), that requires only malice aforethought, *see* 18 U.S.C. §
1111(a). \"\[S\]econd degree murder\'s malice aforethought element is
satisfied by: (1) intent-to-kill without the added ingredients of
premeditation and deliberation; (2) intent-to-do-serious-bodily-injury;
(3) depraved-heart; or (4) commission of \[certain felonies\].\" *United
States v. Pearson,* 159 F.3d 480, 486 (10th Cir.1998) (citing Wayne R.
LaFave & Austin W. Scott, Jr., Criminal Law at 648 (2d ed.1986)). We
have also held that malice aforethought \"may be established by evidence
of conduct which is reckless and wanton, and a gross deviation from a
reasonable standard of care, of such a nature that a jury is warranted
in inferring that defendant was aware of a serious risk of death or
serious bodily harm.\" *Soundingsides,* 820 F.2d at 1237 (citing *United
States v. Black Elk,* 579 F.2d 49, 51 (8th Cir.1978)); *see also United
States v. Joe,* 8 F.3d 1488, 1500 (10th Cir.1993). The concepts of
\"depraved heart\" and \"reckless and wanton, and a gross deviation from
a reasonable standard of care\" are functionally equivalent in this
context. *See United States v. Houser,* 130 F.3d 867, 871 n. 3 (9th
Cir.1997).

\[8\] Involuntary manslaughter, as applicable to this case, is the
unlawful killing of a human being without malice in the commission,
without due caution and circumspection, of a lawful act which might
produce death. *See* 18 U.S.C. § 1112(a). The defendant\'s acts must
amount to \" \'gross negligence,\' \" defined as \" \'wanton or reckless
disregard for human life.\' \" *United States v. Bryant,* 892 F.2d 1466,
1470 (10th Cir.1989) (quoting *United States v. Benally,* 756 F.2d 773,
776 (10th Cir.1985)). \"Gross negligence\" describes a degree of
culpability far more serious than tort negligence. *See United States v.
Browner,* 889 F.2d 549, 553 (5th Cir.1989); *United States v.
Escamilla,* 467 F.2d 341, 346 (4th Cir.1972).

**\*1229** \[9\]\[10\] The distinction between involuntary manslaughter
and second-degree murder is that the former does not require malice
aforethought. The definitions of \"malice aforethought\" and \"without
due care and circumspection\" developed in our case law, however, use
overlapping terminology: both refer to \"reckless and wanton\" behavior.
*See Bryant,* 892 F.2d at 1470 (affirming involuntary manslaughter
instructions requiring \"wanton or reckless\" conduct); *Soundingsides,*
820 F.2d at 1237 (defining malice aforethought as reckless and wanton
conduct). The substantive distinction is the severity of the reckless
and wanton behavior: Second-degree murder involves reckless and wanton
disregard for human life that is extreme in nature, while involuntary
manslaughter involves reckless and wanton disregard that is not extreme
in nature. *See Houser,* 130 F.3d at 872; *United States v. Sheffey,* 57
F.3d 1419, 1430 (6th Cir.1995); *United States v. One Star,* 979 F.2d
1319, 1321 (8th Cir.1992); *see also United States v. Fleming,* 739 F.2d
945, 948 (4th Cir.1984) (noting that the difference between murder and
manslaughter is \"one of degree rather than kind\").

**B**

\[11\]\[12\] Dr. Wood moved for judgment of acquittal after the close of
the government\'s case-in-chief pursuant to Fed.R.Crim.P. 29(a) on the
grounds that the evidence presented failed to prove the requisite intent
to kill\--premeditation or malice aforethought. \[FN2\] The district
court denied the motion, but conceded it was troubled by the
implications of that result. When ruling on a motion for judgment of
acquittal, a district court should consider not only whether the
evidence would be sufficient to sustain a conviction of the offense
charged, but also whether it would be sufficient to sustain a conviction
on a lesser included offense. *See* Fed.R.Crim.P. 31(c) (\"The defendant
may be found guilty of an offense necessarily included in the offense
charged\....\"); *United States v. Cavanaugh,* 948 F.2d 405, 409 (8th
Cir.1991) (holding that if a court grants judgment of acquittal
following a jury verdict of guilty, it may enter judgment of conviction
on a lesser included offense); 2 Charles Alan Wright, *Federal Practice
and Procedure: Criminal 2d* § 467 (2d ed. 1982) (\"\[O\]n a motion for
judgment of acquittal the court must consider whether the evidence would
be sufficient to sustain a conviction of \[ \] a lesser offense.\"). If
the evidence is sufficient to sustain a conviction on the lesser but not
the greater offense, the judge may submit only the lesser charge to the
jury. *See United States v. LoRusso,* 695 F.2d 45, 52 (2d Cir.1982).

FN2. On appeal, Dr. Wood also argues there was insufficient evidence
that his actions caused Dykes\'s death. The evidence, viewed in the
light most favorable to the government, is sufficient to establish
causation: Dykes died immediately after receiving the injection, and two
government experts testified that Dykes died as a result of the KCl
injection.

\[13\] We conclude that the evidence supports the district court\'s
instinct rather than its result. The evidence introduced during the
government\'s case-in-chief, taken in the light most favorable to the
government, was insufficient to prove that Dr. Wood killed Dykes with
premeditation or malice aforethought. The government presented no direct
evidence of a specific intent to kill. Nor could a rational juror infer
from the circumstantial evidence that Dr. Wood acted with premeditation
or in a manner that was extremely reckless, wanton, and a gross
deviation from the reasonable standard of care when he injected Dykes
with potassium chloride. Because the evidence could not have sustained a
conviction on the charged offense of first-degree murder or the lesser
included offense of second-degree murder, the district court erred when
it denied Dr. Wood\'s motion for judgment of acquittal as to those
offenses.

1\. The Government\'s Portrayal of Evidence is Misleading

The government\'s characterization of the evidence to support an
inference of **\*1230** premeditation and malice aforethought is
misleading and unpersuasive. It points to the following facts: (1) the
amount, speed, and method (i.e. injection into a central vein) of
administration of KCl were contrary to accepted medical practice; (2)
Dykes was stable that morning and did not require emergency treatment;
(3) nurses warned Dr. Wood that the proposed injection of KCl was
dangerous; (4) Dr. Wood ordered Nurse Kinsey to prepare 40 mEq of KCl
even though he said that he only intended to inject 10 mEq; and (5) Dr.
Wood continued injection despite Dykes\'s worsening condition and then
took inadequate measures to resuscitate him. A careful review of the
record reveals that the evidence does not support such a stark picture,
nor does it support an inference of premeditation or malice
aforethought.

The prosecution\'s evidence establishes general standards for the
administration of potassium and indicates that Dr. Wood\'s treatment of
Dykes did not comport with those standards. All of the government\'s
experts concurred with the following propositions: potassium is
essential to life and proper heart functioning, but when administered at
a high concentration over a short period of time it can be lethal;
administering KCl by intravenous injection (rather than titration from
an IV bag) into a central vein was appropriate only in extreme
situations; and, in general, a dosage of 40 mEq of KCl in an hour was
appropriate, though one mEq per minute was acceptable in emergency
situations. An FBI agent testified that Dr. Wood responded affirmatively
when the agent asked whether 10 mEq in one minute would be too fast. As
to the dosage administered in the instant case, the conflicting
evidence, \[FN3\] taken in the light most favorable to the government,
indicates that Dr. Wood injected Dykes with approximately 20 mEq of KCl
over 30 seconds.

FN3. On direct examination, Nurse Kinsey stated that Dr. Wood injected
32 ccs of fluid (approximately 21.3 mEq of KCl) over the course of what
she determined to have been 15-20 seconds. On cross-examination she
conceded that on the day of the incident she noted that Dr. Wood had
injected 25 ccs (approximately 16.7 mEq) and had told the FBI the dosage
was injected over a period of two or three minutes. Nurse Hardesty also
testified on direct examination that Dr. Wood injected 25 ccs in a
little more that 30-40 seconds, but on cross-examination she
acknowledged that she had testified before the grand jury that only 20
ccs (approximately 13.3 mEq) had been used. Dr. Bass testified that he
and the nurses later determined that Dr. Wood injected about 30 ccs
(approximately 20 mEq) of KCl over approximately 30 seconds, though he
was unable to recall the duration of injection with certainty and it may
have been as long as ten minutes. An FBI officer testified that Dr. Wood
told him he had injected as much as 10 mEq of KCl over seven minutes.

All of the government\'s eyewitnesses conceded that Dykes was very sick
on the morning of the thirteenth and required at least some KCl, though
they disagreed as to whether his condition required Dr. Wood\'s
immediate treatment. Early that morning, Dr. Morgan reviewed a recent
x-ray of Dykes\'s lungs and made a tentative diagnosis of adult
respiratory distress syndrome (ARDS), a serious and often preterminal
condition involving leakage of fluid into the lungs. Dr. Lytle
testified, based on the same x-rays, that there was no significant
change in the amount of fluid in Dykes\'s lungs between 1 a.m. and 7
a.m. that morning. Dr. Lytle also testified that Dykes was extremely ill
and his condition was not improving, but he was unlikely to die in the
next forty-eight hours and that, while Dykes\'s potassium level was low
and \"of concern,\" he saw nothing that morning that would justify a
rapid injection of KCl. Dr. Morgan and Dr. Lytle agreed that Dykes\'s
condition required an adjustment to his treatment and prescribed Lasix
and KCl. In Nurse Kinsey\'s opinion, Dykes was \"unresponsive to verbal
stimuli,\" \"very sick,\" (III R. at 196), and in \"critical
condition,\" (IV R. at 268), with serious cardiac and respiratory
problems, but that his health had not \"changed dramatically,\" (IV R.
at 228), his potassium level was low but not critical, and emergency
measures were not justified. On cross-examination she stated that
administration of potassium was medically indicated. Nurse Hardesty
**\*1231** said Dykes was stable, though conceded he had multiple
\"extremely severe\" ailments, including low potassium, (IV R. at 392),
and that Dykes needed potassium.

Government witnesses not present at the hospital that day support the
government\'s contention that Dr. Wood\'s chosen course-of-treatment was
inappropriate, but they belie the suggestion that Dykes\'s was anything
other than very ill. Pathologist Dr. Michael Baden testified that Dykes
was suffering \"from various severe chronic diseases,\" (IV R. at 433),
but stable, and the rapid injection of KCl described by the government
eyewitnesses \"was not warranted from a clinical point of view, was
extremely dangerous, was beyond reasonable medical treatment\.... It was
reckless.\" (IV R. at 446.) He also classified Dykes\'s death as a
homicide. In the opinion of nephrologist Dr. James Knochel, Dykes was
not suffering from ARDS or pulmonary edema, and Dr. Wood should have
obtained a new blood test before taking any action. He further stated
that Lasix would not have reduced Dykes\'s potassium level enough to
warrant an injection of potassium, and that rapid injection was never
justified because the predictable result was cardiac arrest. In the
opinion of radiologist Dr. Max Walter, Dykes was suffering from
pulmonary edema, but his condition was stable save for a worsening of
pneumonia in the left lung. Cardiologist Dr. Eliot Schechter thought
that on the thirteenth Dykes was in poor but stable condition and did
not have ARDS, that it was unlikely that an additional dose of Lasix
would drop Dykes\'s potassium to a dangerous level, and that the amount
of potassium administered by Dr. Wood was not \"appropriate.\" (VI R. at
885). Dr. Schecter conceded on cross-examination that Dykes required
potassium although he did not believe a rapid injection was necessary.

The government accurately notes Dr. Wood performed the injection himself
after both nurses warned the proposed dosage exceeded the amount
permitted by hospital policy and recommended by a drug manual. Dr. Wood
also ordered Nurse Kinsey to prepare 40 mEq of KCl even though he later
informed an FBI investigator that he only intended to inject Dykes with
10 mEq.

The government, however, mischaracterizes the evidence as to Dr. Wood\'s
reaction to Dykes\'s worsening condition during the course of the
injection. Dr. Bass did not testify that Dr. Wood continued injection
even after the heart monitor emitted a loud alarm. Rather, he testified
that Dr. Wood continued to inject while Dykes\'s \"cardiac rhythm
changed,\" (V R. at 646), and after the patient gasped, but that Dr.
Wood stopped injecting when the monitor flat-lined and Dykes stopped
breathing.

The government also mischaracterizes the efforts to resuscitate Dykes
following the injection. It was uncontroverted that Dr. Wood gave Dykes
one or two precordial thumps. Nurse Hardesty testified that the purpose
of precordial thumps is to revive the patient. Dr. Bass then began chest
compressions, which Dr. Wood interrupted for a moment. Contrary to the
government\'s implication that this action was nefarious, it is
uncontroverted that chest compressions must be paused in order to get an
accurate reading from the heart monitor. At some point Nurse Kinsey
began to oxygenate Dykes using an ampu bag. Initially Dr. Wood told
Nurse Hardesty not to call a code, but eventually had her call for the
assistance of respiratory therapy. \[FN4\] Dr. Lytle and Nurse Hardesty
**\*1232** testified that when the condition of a full-code patient like
Dykes becomes critical and the attending physician is present, it is
that physician\'s responsibility to determine what resuscitative efforts
are appropriate, including whether to call a code. Through expert
testimony, the government established that a prompt injection of calcium
may reverse the effects of excessive potassium and that Dr. Wood did not
use the calcium available in the ICU. Dr. Schechter opined that the
attempts at resuscitation were inadequate. Nurse Hardesty testified that
Dr. Wood pronounced Dykes dead and ceased resuscitation efforts after
two to four minutes.

FN4. Dykes\'s code status\--the measures that should be taken were his
condition to become critical\--was the subject of extensive testimony.
Following Dykes\'s surgery, Dr. Atchinson made an initial determination
that only limited resuscitative efforts should be taken because he felt
Dykes would not survive his hospital stay. Dr. Wood modified this order
to permit greater resuscitative efforts. On February 12, 1999, Dr.
Morgan and Dr. Lytle ordered that no extraordinary efforts should be
taken to resuscitate Dykes. Dr. Lytle withdrew that order the morning of
the thirteenth because hospital policy required additional procedural
steps before making such a determination for a patient like Dykes who
lacked next-of-kin, not because of any change in Dykes\'s condition.

2\. The Evidence Fails to Establish Premeditation or Malice Aforethought

\[14\]\[15\] This scenario plainly is not one of first-degree murder.
Well-intentioned but inappropriate medical care, standing alone, does
not raise an inference that a killing was deliberate, willful, and
premeditated. *Cf. Kansas v. Naramore,* 25 Kan.App.2d 302, 965 P.2d 211,
223-24 (1998) (reversing a physician\'s convictions for attempted murder
and second-degree murder). Rather, specific intent is properly inferred
where the apparent purpose of the lethal act is to cause the victim\'s
death. *See United States v. Downs,* 56 F.3d 973, 975 (8th Cir.1995)
(finding premeditation established by evidence of extensive planning,
lying in wait, and shooting the victim multiple times as she pleaded for
her life); *United States v. Treas-Wilson,* 3 F.3d 1406, 1409-10 (10th
Cir.1993) (finding that premeditation was based on evidence that the
defendant injured his victim and then dragged her outside prior to
inflicting a \"precise and fatal\" knife wound); *United States v.
Sides,* 944 F.2d 1554, 1558 (10th Cir.1991) (finding evidence that the
victim was shot while sitting passively, crying, and crossing herself
was sufficient to prove premeditation). The evidence presented during
the government\'s case-in-chief, taken in the light most favorable to
the government, does not support an inference of lethal purpose. Rather,
the only reasonable inference a jury could draw is that Dr. Wood acted
in good faith with the intent to save or prolong Dykes\'s life in what
he believed to be an emergency situation. \[FN5\]

FN5. Nurse Kinsey testified that she believed Dr. Wood gave the
potassium chloride to accommodate the Lasix and that Dykes\'s death was
an \"unexpected event\" for Dr. Wood. (IV R. at 308-09.)

\[16\]\[17\] Likewise, Dr. Wood\'s treatment of Dykes does not support
an inference of malice aforethought sufficient to sustain a conviction
of second-degree murder. There is evidence Dr. Wood knew the
course-of-treatment he chose\--intravenous injection of substantial
quantities of KCl\--was unusual and presented a risk, even a \"serious
risk of death or serious bodily harm.\" *Soundingsides,* 820 F.2d at
1237. However, the evidence also demonstrates that the administration of
KCl in some manner was medically indicated. Dr. Wood\'s treatment of
Dykes involved a choice between several courses of action, some of which
were more risky, but perhaps more efficacious, than others. A physician
cannot be convicted of murder simply for adopting, in an emergency
setting, a risky course of action intended to prolong life that, when
carried out, fails to forestall or even hastens death. *Cf. Naramore,*
965 P.2d at 223-24. Instead, to permit a charge of murder with malice
aforethought to go to the jury, that choice must be not only a gross
deviation from a reasonable standard of care, but also extremely
reckless and wanton. *See Soundingsides,* 820 F.2d at 1237. Dr. Wood\'s
good-faith efforts at treatment simply do not rise to the \"extreme\"
disregard for human life necessary to satisfy the malice aforethought
standard. *See Houser* 130 F.3d at 872. \[FN6\]

FN6. Although we find that the evidence presented during the
government\'s case-in-chief was insufficient to prove premeditation or
malice aforethought, Dr. Wood\'s claim that the government wrongfully
prosecuted the first-degree murder charge lacks merit. In *Costello v.
United States,* 350 U.S. 359, 363, 76 S.Ct. 406, 100 L.Ed. 397 (1956),
the Court held \"\[a\]n indictment returned by a legally constituted and
unbiased grand jury, \... if valid on its face, is enough to call for
trial of the charges on the merits.\" Dr. Wood has not alleged that the
grand jury was biased or illegally constituted or that the indictment is
facially invalid. Rather, he argues there is no evidence of
premeditation to support the charge. The Court in *Costello* soundly
rejected a similar argument, holding that indictments are not open to
challenge \"on the ground that they are not supported by adequate or
competent evidence.\" *Id.* at 363-64, 76 S.Ct. 406.

**\*1233** This conclusion is confirmed by comparing the instant facts
with those in other cases examining the sufficiency of the evidence to
support second-degree murder convictions. Our research uncovered only
three cases, state or federal, in which an appellate court was
confronted with the sufficiency of the evidence to support a charge or
conviction of second-degree murder stemming from a licensed physician\'s
treatment of a patient. In two cases, the reviewing court affirmed a
physician\'s conviction for second-degree murder. *See Einaugler v.
Supreme Court of New York,* 109 F.3d 836, 840-41 (2d Cir.1997) (denying
a petition for a writ of habeas corpus based on a claim of insufficient
evidence to sustain a second-degree murder conviction because of
evidence that the physician had ordered the patient to be fed through a
kidney dialysis catheter and, upon discovering the mistake, waited ten
hours before transferring the patient to the hospital despite being told
by a specialist that prompt treatment was necessary); *People v.
Klvana,* 11 Cal.App.4th 1679, 15 Cal.Rptr.2d 512, 527 (1992) (affirming
a physician\'s conviction of second-degree murder for the death of nine
infants because a reasonable jury could find implied malice based on the
facts that the defendant repeatedly ignored obvious signs of respiratory
distress, advised parents not to take their children to the hospital
despite apparent problems, and induced vaginal births in entirely
inappropriate circumstances, all after having been warned on numerous
occasions that his treatment was dangerously substandard). These cases
involved treatment that had no conceivable clinical benefit and was
entirely outside the proper standard of care. By contrast, Dr. Wood gave
a medically indicated drug to a very ill man, but, construing the
evidence in the light most favorable to the government, gave an
inappropriate dosage. When it became apparent that his chosen
course-of-treatment had failed, he then took resuscitative measures.

Similarly, in cases sustaining a second-degree murder conviction under
18 U.S.C. § 1111, the defendants\' conduct does not reflect a choice
between inherently risky courses of action undertaken in a good faith
effort to prolong the victims\' life. Rather, the defendants\' conduct
generally displays an extreme disregard for the well-being of others.
*See, e.g., United States v. Eder,* 836 F.2d 1145, 1149 (8th Cir.1988)
(finding the evidence sufficient to support malice aforethought where
the defendant inflicted a head wound on his daughter and then denied her
medical attention, despite numerous pleas from third parties that he
seek treatment for her); *Fleming,* 739 F.2d at 945-48 (finding evidence
that the defendant had an extremely high blood alcohol content level,
was driving at double the posted speed limit, and frequently drove on
the wrong side of the road was sufficient to prove malice aforethought).
When compared with the actions of physicians and others that courts have
found sufficient to sustain a conviction for second-degree murder, Dr.
Wood\'s treatment of Dykes clearly does not amount to the extremely
reckless and wanton disregard for life necessary to support an inference
of malice aforethought.

Dr. Wood\'s actions are even less culpable than those of the defendant
in *United States v. Millen,* 594 F.2d 1085, 1087 (6th Cir.1979), in
which the court held the district court erred in denying the
defendant-physician\'s motion for a directed verdict on a charge of
second-degree murder. In that case, the defendant, Dr. Millen,
prescribed Demerol to a known drug addict who subsequently overdosed on
the drug. While the Sixth Circuit did not state why the evidence did not
support a charge of **\*1234** second-degree murder, a comparison is
nevertheless enlightening: Dr. Wood\'s administration of KCl to Dykes
was medically indicated and had the goal of prolonging life, whereas Dr.
Millen\'s prescription of Demerol was contraindicated given the
patient\'s known history of serious drug abuse. Thus, not only do Dr.
Wood\'s actions fall far short of the extremely reckless disregard for
human life evident in cases sustaining second-degree murder convictions
against physicians and others, but his actions are even less reckless
than the actions of Dr. Millen, whose conviction was reversed.

We conclude that, taking the evidence presented during the government\'s
case-in-chief in the light most favorable to the government, no rational
trier of fact could have found malice aforethought, let alone
premeditation, beyond a reasonable doubt. Therefore, the district court
erred when it denied Dr. Wood\'s motion for judgment of acquittal on the
charges of first and second-degree murder.

**C**

\[18\] In contrast, the evidence presented at trial, taken in the light
most favorable to the government, was sufficient to support Dr. Wood\'s
conviction for involuntary manslaughter. As discussed above, the
distinction between depraved-heart second-degree murder and involuntary
manslaughter is whether the reckless conduct is so extreme in nature as
to permit an inference of malice. Although the evidence was not
sufficient to demonstrate that Dr. Wood\'s actions were so extremely
reckless that a juror could infer malice aforethought, we conclude that
a jury could find beyond a reasonable doubt that the manner in which Dr.
Wood performed that injection was reckless enough to constitute a lack
of \"due caution and circumspection.\" 18 U.S.C. § 1112. Viewed in the
light most favorable to the government, the evidence establishes that
the quantity and speed of the injection of KCl exceeded the consensus as
to the maximum beneficial dosage. Given Dr. Wood\'s therapeutic purpose
and the uncontradicted propriety of administering some KCl, the
excessive dosage does not support an inference of malice aforethought.
It suffices, however, to prove the reduced degree of recklessness
necessary to sustain a conviction for involuntary manslaughter. *See
Pennsylvania v. Youngkin,* 285 Pa.Super. 417, 427 A.2d 1356, 1361 (1981)
(finding the evidence was sufficient to support a conviction for
involuntary manslaughter where the physician prescribed inordinate
amounts of barbituates to a patient he knew was abusing those drugs);
*Utah v. Warden,* 813 P.2d 1146, 1152 (Utah 1991) (affirming a negligent
homicide conviction where the evidence that the physician failed to
treat a newborn clearly suffering from respiratory distress syndrome and
discouraging the baby\'s mother from seeking treatment elsewhere
demonstrated a \"wide gulf\" between the defendant\'s actions and the
appropriate standard of care).

**III**

Before determining whether the erroneous denial of Dr. Wood\'s motion
for judgment of acquittal on the charges of first and second-degree
murder requires reversal despite the sufficiency of the evidence to
sustain Dr. Wood\'s conviction for involuntary manslaughter, we turn to
Dr. Wood\'s other assignments of error: prejudicial delay of
prosecution, failure to instruct the jury on his theory of defense, and
improper admission of several pieces of evidence.

**A**

\[19\]\[20\] Whether a defendant\'s \"due process rights were denied by
a delay in bringing an indictment is a question of fact, which this
court reviews for clear error.\" *United States v. Trammell,* 133 F.3d
1343, 1351 (10th Cir.1998). When seeking dismissal of an indictment
based on pre-indictment delay, a defendant must establish the government
intentionally delayed for tactical reasons and the delay caused him
actual prejudice. *See id.* **\*1235** \"Vague and conclusory
allegations of prejudice resulting from the passage of time and the
absence of witnesses are insufficient to constitute a showing of actual
prejudice.\" *Id.*

\[21\] Dr. Wood fails to demonstrate either intentional delay or
prejudice. He points to no evidence from which this court could infer
that the government\'s delay was intentional for the purpose of gaining
tactical advantage. Furthermore, the only specific example of prejudice
he alleges concerns the autopsy of Dykes. The autopsy was conducted by
court order approximately 42 months after Dykes\'s death, at which time
the body was putrefied. Dr. Wood claims that, as a result, \"objective
evidence available to the accused to refute the allegations was lost.\"
(Appellant\'s Br. at 42.) Dr. Wood fails, however, to clarify what
evidence might have been available. The evidence at trial demonstrated
that potassium levels cannot be determined in an autopsy. Dr. Wood\'s
claim of delay, therefore, is too vague and conclusory to establish
prejudice under the circumstances.

**B**

\[22\] At trial, the district court refused to give Dr. Wood\'s
proffered jury instruction to the effect that it is not unlawful for a
physician to adopt one of several proper methods of treatment.
\"Although a criminal defendant is entitled to an instruction regarding
his theory of the case, a trial judge is given substantial latitude and
discretion in tailoring and formulating the instructions so long as they
are correct statements of law and fairly and adequately cover the issues
presented.\" *United States v. Pack,* 773 F.2d 261, 267 (10th Cir.1985).
The instructions correctly advised the jury that if it found the
defendant acted in \"good faith\" it must return a verdict of not
guilty. (VIII R. at 1408-09.) This is an adequate formulation of the
defendant\'s theory in light of existing case law. \[FN7\]

FN7. All of the cases cited by Dr. Wood in support of his proffered
instruction involve civil malpractice claims and therefore are not
controlling.

**C**

\[23\]\[24\] A district court\'s decision to admit evidence, including
expert testimony, is reviewed under an abuse of discretion standard.
*See United States v. Rice,* 52 F.3d 843, 847 (10th Cir.1995). Dr. Wood
alleges that two parts of Dr. Baden\'s testimony violate Fed.R.Evid.
704(b), which \"prevents experts from expressly stating the final
conclusion or inference as to the defendant\'s actual mental state.\"
*United States v. Richard,* 969 F.2d 849, 854 (10th Cir.1992); *see also
United States v. Orr,* 68 F.3d 1247, 1252 (10th Cir.1995). \[FN8\]

FN8. Rule 704(b) states in full:

No expert witness testifying with respect to the mental state or the
condition of a defendant in a criminal case may state an opinion or
inference as to whether the defendant did or did not have the mental
state or condition constituting an element of the crime charged or of a
defense thereto. Such ultimate issues are matters for the trier of fact
alone.

Dr. Baden first testified that \"\[m\]y opinion would be the manner of
\[Dykes\'s\] death is *homicide.*\" (IV R. at 443) (emphasis added). He
had earlier defined homicide as occurring \"when the death is caused at
the hands of another person,\" (IV R. at 441), and gave the example of
\"where a doctor, for one reason or another, has *intentionally*
injected potassium to end a person\'s life as a euthanasia type of
situation,\" (*Id.*) (emphasis added). He thus ruled out the other
manners of death: natural, accident, suicide, or undetermined.
Elaborating on this conclusion, Dr. Baden testified that a death
classified as a homicide is distinct from an accident because the former
involves intentional action \"that was reckless and that would
predictably cause the death of the patient.\" (IV R. at 483.) He then
went on to make the following statement:

My opinion is that the injection of potassium, the way it was done, was
not **\*1236** warranted from a clinical point of view, was extremely
dangerous, was beyond reasonable medical treatment because it can cause
death, and it did in fact cause death. It was *reckless* in the sense of
not being a reasonable action on the part of the physician, which was
fraught with the perils of causing death.

(Appellant\'s Br. at 40) (citing VI R. 4 at 446) (emphasis added).

These statements \"expressly draw the conclusion or inference\" that Dr.
Wood acted with the necessary mens rea when he caused Dykes\'s death.
*Richard,* 969 F.2d at 855. The district court instructed the jury that
to convict Dr. Wood on charges of first or second-degree murder, it was
required to find that he possessed the specific intent to cause harm or
death to Dykes. \[FN9\] By his testimony that Dr. Wood\'s actions caused
Dykes\'s death, Dykes\'s death was a homicide, and a homicide involves
the intentional taking of a person\'s life, Dr. Baden expressly inferred
that Dr. Wood acted with specific intent to kill Dykes.

FN9. The instructions correctly clarified that, in the case of
second-degree murder, the requisite intent can be established by
evidence of conduct that is such a reckless, wanton, and gross deviation
from the reasonable standard of care that a jury may infer the defendant
was aware of a serious risk of death or serious bodily harm.

Similarly, Dr. Baden\'s testimony that Dr. Wood\'s actions were reckless
specifically describes the mens rea for involuntary manslaughter. As
discussed, the mens rea for involuntary manslaughter is \"without due
care and circumspection,\" 18 U.S.C. § 1112, or \"gross negligence,\"
*Bryant,* 892 F.2d at 1470. In its instructions to the jury, the
district court accurately defined \"gross negligence\" as \"a wanton,
*reckless,* indifferent or conscious disregard for human life or the
safety of others.\" (VIII R. at 1406) (emphasis added). This testimony
by Dr. Baden, while not cast in precisely the same terminology as the
statute, case law, or instruction, recites the critical components they
identify. He states in no uncertain terms that Dr. Wood\'s actions were
\"reckless\" because they were \"fraught with the perils of causing
death.\" (IV R. at 446.) This is substantively indistinguishable from
the instruction that the mens rea for involuntary manslaughter is met if
the defendant\'s actions demonstrate a \"reckless \... disregard for
human life\....\" (VIII R. at 1406.) Therefore, Dr. Baden\'s testimony
does not merely provide \"the facts or opinions from which the jury
could conclude or infer the defendant had the requisite mental state.\"
*Richard,* 969 F.2d at 855. If believed, his testimony necessarily
dictates the final conclusion that Dr. Wood possessed the requisite mens
rea for involuntary manslaughter. *See United States v. Morales,* 108
F.3d 1031, 1037 (9th Cir.1997) (\"A prohibited \'opinion or inference\'
under Rule 704(b) is testimony from which it necessarily follows, if the
testimony is credited, that the defendant did or did not possess the
requisite mens rea.\") This intrusion into the province of the jury is
precisely the sort of testimony Rule 704(b) is designed to prevent. *See
United States v. Dennison,* 937 F.2d 559, 565 (10th Cir.1991) (holding
the trial court properly excluded testimony from an expert that a
hypothetical person suffering from the same mental disorder as the
defendant could not form the specific intent to commit assault); *United
States v. Windfelder,* 790 F.2d 576, 582 (7th Cir.1986) (holding that it
was error to admit into evidence an IRS agent\'s testimony that the
defendant intentionally understated his income). \[FN10\]

FN10. This Circuit also prohibits experts from testifying as to ultimate
issues of law in civil cases. *See Specht v. Jensen,* 853 F.2d 805 (10th
Cir.1988). Other circuits applying the same rule have excluded testimony
in civil cases similar to that of Dr. Baden. *See Woods v. Lecureux,*
110 F.3d 1215, 1219-20 (6th Cir.1997) (holding an expert could not
testify that the defendant acted with deliberate indifference because
that mental state was an element of the alleged statutory violation);
*Hygh v. Jacobs,* 961 F.2d 359, 363-64 (2d Cir.1992) (holding an expert
improperly testified to a legal conclusion when he described the
defendant\'s actions as unjustified under the circumstances,
unwarranted, and totally improper).

**\*1237 D**

Dr. Wood alleges that the district court also erred in admitting certain
additional testimony: Dr. Knochel and Dr. Baden\'s statements that KCl
is used to execute criminals; Dr. Baden\'s statement that KCl is the
drug most commonly used to euthanize animals; and Dr. Bass\'s statement
that he had recurring nightmares of Dykes gasping before he died. He
contends that this testimony should have been excluded because \"its
probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the jury, or misleading the jury\....\"
Fed.R.Evid. 403.

\[25\] The expert testimony concerning the use of KCl in executions and
the euthanasia of animals clearly prejudiced the defendant by creating
the impression that KCl is purely an instrument of death and Dr. Wood
was acting as an executioner. While probative of KCl\'s lethal effect,
the dangers and benefits of KCL in a clinical setting were adequately
established by the balance of the experts\' testimony. Accordingly, the
district court should have excluded these statements.

\[26\] Dr. Bass\'s testimony that he had recurring nightmares of
Dykes\'s \"last gasp\" is more probative than prejudicial and therefore
was properly admitted. Because the defense placed at issue Dr. Bass\'s
ability to accurately recall the details of Dykes\'s death, the
nightmare testimony was probative of why one event, occurring four years
earlier, remained fresh in the witness\'s memory. Furthermore, this
testimony is not prejudicial. Dr. Wood argues that the prosecutor relied
heavily on the \"last gasp\" during closing argument, even going so far
as to re-enact the event in an effort to shock the jury. These
re-enactments were indeed egregious. Yet Dr. Wood does not object to Dr.
Bass\'s testimony that he heard a gasp, only to his testimony that he
continues to hear it in his nightmares. The prosecution relied primarily
on the former testimony, not the latter.

**IV**

\[27\] Although the evidence taken in the light most favorable to the
government is sufficient to sustain Dr. Wood\'s conviction for
involuntary manslaughter, and while the errors identified above might be
harmless when viewed individually, under the particular circumstances of
this case the erroneous denial of Dr. Wood\'s first motion for judgment
of acquittal on the charges of first and second-degree murder and the
erroneous admission of testimony in violation of Fed.R.Evid. 403 and
704(b) constitute cumulative error requiring reversal.

\[28\] A cumulative error analysis aggregates all the errors that
individually might be harmless, \"and it analyzes whether their
cumulative effect on the outcome of the trial is such that collectively
they can no longer be determined to be harmless.\" *United States v.
Rivera,* 900 F.2d 1462, 1470 (10th Cir.1990) (en banc). \"The
harmlessness of cumulative error is determined by conducting the same
inquiry as for individual error\--courts look to see whether the
defendant\'s substantial rights were affected.\" *Id.* (citing *United
States v. Kartman,* 417 F.2d 893, 894, 898 (9th Cir.1969)). Thus our
cumulative error analysis must focus on \" \'the underlying fairness of
the trial.\' \" *Id.* at 1469 (quoting *Delaware v. Van Arsdall,* 475
U.S. 673, 681, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986) (citation
omitted)). The standard for this analysis in cases of non-constitutional
error is set forth in *Kotteakos v. United States,* 328 U.S. 750, 762,
66 S.Ct. 1239, 90 L.Ed. 1557 (1946): \"Necessarily the character of the
proceeding, what is at stake upon its outcome, and the relation of the
error\[s\] asserted to casting the balance for decision on the case as a
whole, are material factors in judgment.\" The *Kotteakos* Court
elaborated that \"if one cannot say, with fair assurance, after
pondering all that happened without stripping the erroneous action from
the whole, that the judgment was not substantially swayed by the
error\[s\], it is impossible to conclude that **\*1238** substantial
rights were not affected.\" *Id.* at 765. The applicable standard is
thus different than that applied when determining if the evidence is
sufficient to sustain a verdict: \"The inquiry cannot be merely whether
there was enough to support the result, apart from the phase effected by
the error\[s\]. It is rather, even so, whether the error\[s\]
\[themselves\] had substantial influence.\" *Id.*

\[29\] After examining the proceedings in their entirety, we conclude
that Dr. Wood\'s right to a fair trial was substantially impaired. By
denying Dr. Wood\'s motion for judgment of acquittal at the close of the
government\'s case-in-chief, the district court permitted the jury to
consider the charges of first and second-degree murder. We recognize
that a district court is permitted to reserve ruling on a motion for
judgment of acquittal until after the jury returns its verdict, *see*
Fed.R.Crim.P. 29(b), \[FN11\] and that in this case the jury in fact
acquitted Wood of those offenses regarding which his motion was
improperly denied. Nonetheless, we cannot ignore that the jury,
confronted with such serious charges, might have felt compelled to
convict Dr. Wood of the lesser offense whether or not the government had
proven each element of the crime beyond a reasonable doubt. *See
Millen,* 594 F.2d at 1087. Such a compulsion could have been exacerbated
by Dr. Baden\'s inadmissible expert opinion that Dykes\'s death was a
homicide and that Dr. Wood possessed the requisite mens rea for the
lesser offense, and the prejudicial comparison of Dr. Wood\'s
course-of-treatment with the execution of prisoners and euthanasia of
animals. We cannot say with fair assurance that, given the profound
seriousness of the charges the jury was asked to resolve, its judgment
was not substantially swayed by these improper, inflammatory, and
prejudicial statements. *See Kotteakos,* 328 U.S. at 762, 66 S.Ct. 1239.
Accordingly, we reverse Dr. Wood\'s conviction and remand the case for a
new trial on the charge of involuntary manslaughter. \[FN12\]

FN11. Neither this nor any other circuit has decided, in a published
opinion, whether a district court\'s decision to reserve ruling on a
motion for judgment of acquittal is reviewable and, if it is, under what
standard. Two unpublished opinions reach conflicting results. *Compare
United States v. Brown*, 142 F.3d 446, No. 97-30082, 1998 WL 225042, at
\*1 (9th Cir. 1998) (holding that the decision to reserve ruling was not
plain error because is was authorized by Fed.R.Crim.P. 29(b)), *with
United State v. Davis,* 74 F.3d 1241, 1996 WL 15622, (6th Cir. Jan.16,
1996) (holding a district court\'s reservation is reviewed for abuse of
discretion). We need not resolve this issue here because we find that
the district court\'s denial of Dr. Wood\'s first motion for judgment of
acquittal, combined with the evidentiary errors, requires reversal.

FN12. We need not reach Dr. Wood\'s arguments that the district court
committed plain error by instructing the jury on the greater offenses
because the result, were we to find in his favor, would be the same.

**V**

We **REVERSE** the judgment of the district court and **REMAND** for a
new trial on the charge of involuntary manslaughter.

207 F.3d 1222, 54 Fed. R. Evid. Serv. 108, 2000 CJ C.A.R. 1645

END OF DOCUMENT