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United States v. Gerlay

November 17, 2009


The opinion of the court was delivered by: John D. Roberts United States Magistrate Judge


Defendant Gary Gerlay seeks an order striking surplusage from the indictment. Docket 38. The motion is opposed in part by the government. Docket 55. For the reasons discussed below, the motion is granted in part and denied in part.


Rule 7(d) of the Federal Rules of Criminal Procedure permits the court upon the defendant's motion to strike surplusage from an indictment. The presence of surplusage in the indictment is not fatal to its validity. Language that describes elements beyond what is required under the statute is surplusage and need not be proved at trial. Bargas v. Burns, 179 F3d 1207, 1216, n.6 (9th Cir. 1999), cert denied, 120 S.Ct. 1686). See also United States v. Wells, 127 F.3d 739, 743 (8th Cir. 1997) (when an indictment includes all of the essential elements of an offense, but also treats other superfluous matters, superfluous allegations may be disregarded and the indictment is proper). The purpose of Rule 7(d) is to protect a defendant against prejudicial or inflammatory allegations that are neither relevant nor material to the charges. United States v. Terrigno, 838 F.2d 371, 373 (9th Cir. 1988). Such a motion is addressed to the discretion of the court. United States v. Hedgepeth, 434 F.3d 609, 611 (3rd Cir. 1006), cert. denied, 126 S.Ct. 2044.

It is not proper to strike from the indictment words describing what is legally essential to the charge. A motion to strike surplusage should be granted only if it is clear that the allegations are not relevant to the charge and are inflammatory and prejudicial. Use of words to convey the means by which a criminal scheme is carried out need not be stricken as surplusage when they are not unfairly prejudicial. If language in the indictment constitutes information that the government hopes to properly prove at trial, it cannot be considered surplusage no matter how prejudicial it may be as long as the information is legally relevant. United States v. Climatemp, Inc., 482 F. Supp. 376 (N.D. Ill. 1979).


A 95-count indictment charges Gerlay in Counts 1 through 64 with unlawful distribution and dispensing of a controlled substance in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C), (b)(1)(D), and (b)(2). Counts 65 through 97 charge healthcare fraud in violation of 18 U.S.C. § 1347(1). The defendant's requests are considered in turn below.

I. The defendant argues that paragraph 3 of the indictment should be stricken. That paragraph is contained within the introductory allegations describing Dr. Gerlay's background. Paragraph 3 alleges as follows:

In February 1985, defendant Gary S. Gerlay admitted, by Stipulation filed with the New Mexico Board of Medical Examiners, that he improperly wrote and misused prescriptions for controlled substances, for which defendant Gary S. Gerlay was disciplined by the New Mexico Board of Medical Examiners.

In order to prove unlawful distribution and dispensing of a controlled substance as charged in Counts 1 - 64, the government would have to prove that "Gary S. Gerlay knowingly and intentionally[,] not for a legitimate medical purpose, and knowingly and intentionally outside the usual course of professional medical practice, did knowingly and intentionally distribute and dispense, and cause to be distributed and dispensed . . . controlled substances by prescription" to a person named in the indictment on or about the date set forth in the indictment. Proof of the admission and state sanctioning referenced in paragraph 3 of the indictment is not necessary to state a violation of 21 U.S.C. § 841(a) or health care fraud under 18 U.S.C. § 1347(1). The likelihood of unfair prejudice or confusion to the jury by paragraph 3 is great enough to grant the motion to strike paragraph 3. What Dr. Gerlay admitted and for what reasons and the actions of the Board of Medical Examiners present evidentiary issues trial.

Striking this language from the indictment does not preclude the government from seeking to offer Rule 404(b) evidence of other crimes or wrongs if necessary to prove "motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident." The motion to strike Gerlay's admission of prescription abuse and the Board of Medical Examiners disciplinary action shall be stricken.

II. Gerlay seeks to have stricken the following underlined language contained in paragraph 6 of the indictment:

Defendant Gary S. Gerlay operated APM until on or about April 21, 2005, when, following an investigation, his Alaska medical license was summarily suspended by the Alaska State Medical Board, which found that his continued practice posed a ...

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