                             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.
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.”



                                          2
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).



                                       3
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.



                                                 4
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.



                                        5
     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

                                     6
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

                                      7
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


                                       8
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

                                           9
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

                                          10
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.



                                           11
     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

                                           12
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.



                                        13
                                            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

                                            14
“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)
                                      15
                                      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.



                                      16
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.



                                     17
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

                                          18
[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.



                                            19
       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.


                                             20
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.

                                               21
                                             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;

                                             22
      •     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).


                                        23
                                            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.”



                                            24
      (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


                                            25
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

                                              26
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).

                                           27
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

                                                28
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

                                           29
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

                                          30
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



                                              31
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




                              32
