The opinion of the court was delivered by: John W. Sedwick United States District Judge
[Re: Motions at dockets 128, 130, 132, and 134]
At dockets 128, 130, 132, and 134 defendant Gary S. Gerlay asked the court to foreclose presentation of certain testimony and information at trial. He filed supporting memoranda at dockets 129, 131, 133, and 135. Plaintiff filed a combined response at docket 152. Oral argument was not requested and would not assist the court.
Defendant Gary S. Gerlay was at all relevant times a practicing physician. He purchased a pain management clinic, Aurora Pain Management, from another physician. Gerlay operated the clinic from November of 2002 through April of 2005. Gerlay is charge with 64 counts of illegally distributing controlled substances and aiding and abetting such distribution in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), 841(b)(2), and 2. He is also charged with 33 counts of health care fraud in violation of 18 U.S.C. §§ 1347(1) and 2.*fn1
A. Rules 402, 403, and 404(b)
Each of the pending motions requires the court to consider and apply Federal Rules of Evidence 402, 403, and 404(b). Rule 402 provides that evidence which is not relevant shall be excluded. Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."*fn2
Rule 403 instructs that relevant evidence is to be excluded when its "probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or by misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Obviously, the rule requires the court to balance the probative value of the evidence offered against any of the listed factors which might require its exclusion. Consideration of undue prejudice requires, among other things, evaluation of the possibility that the evidence might induce the jury to decide the case on a purely emotional basis.*fn3
Rule 404(b) provides in pertinent part: Evidence of other crimes, wrong, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident . . . .
The Ninth Circuit considers Rule 404(b) to be a rule permitting the inclusion of evidence, rather than a rule necessarily requiring the exclusion of evidence.*fn4 Unless the evidence tends to prove only a propensity to do something, it is admissible.*fn5 However, evaluating whether evidence is admissible under Rule 404(b) also requires the court to consider whether it should be excluded under the Rule 403 balancing test.*fn6 Moreover, the Ninth Circuit has explained that to be admissible, evidence of a prior act must be probative of a material point, must be supported by enough proof to allow the jury to conclude that the defendant actually did engage in the prior act, must not be too remote in time, and must exhibit sufficient similarity to conduct involved in committing the crime charged.*fn7
In his first motion to exclude evidence, Gerlay asks the court to exclude "Testimony that Dr. Gerlay kept, carried, or possessed a firearm on the premises of Aurora Pain Management [and testimony that he] kept, carried, or possessed a baseball bat on the premises of Aurora Pain Management."*fn8 Gerlay contends that this evidence should be excluded under Fed. R. Evid. 402, 403, and 404(b).
The court turns first to Gerlay's assertion that the evidence should be excluded under Rule 402, because it is not relevant. Both parties recognize that in the most fundamental sense the government's case against Gerlay depends on proving that when prescribing controlled substances Gerlay acted in the capacity of an illegal drug dealer rather than a physician.*fn9 The government says that the evidence at trial will show that Gerlay kept large amounts of cash on the premises of the Aurora Pain Management clinic, that many of his patients/customers were drug addicts, and that like other drug dealers, Gerlay kept weapons to defend himself and his money. Assuming the government can show cash was kept on the premises and that drug-addicted persons came to the clinic to obtain drugs, the evidence that Gerlay kept a gun and a baseball bat at the clinic is relevant to the proposition that he was operating a drug distribution business, not a medical clinic.
Gerlay argues that even if relevant, the evidence should be excluded under Rule 403, because of "the danger of unfair prejudice, undue delay and waste of time."*fn10
Here, where the government is attempting to prove beyond a reasonable doubt the remarkable proposition that a practicing physician stooped to the level of illicit drug dealing, it is obvious that the prosecution's case must be made methodically and thoroughly. In that context, Gerlay's possession of the firearm and the baseball bat at the clinic has fairly significant probative value. The testimony required to establish these facts would not be very lengthy. The risk of undue delay and waste of time does not substantially outweigh the probative value of the evidence. Gerlay's concern about undue prejudice presents a closer question. Nevertheless, the court concludes that Gerlay's possession of these means of self defense would not cause the jury to form an unfairly prejudicial opinion of Gerlay, much less consider convicting him because of an emotional reaction to the fact that he kept the weapons on the premises. While the evidence does support the inference the government will ask the jury to draw about Gerlay's activities, it is also entirely consistent with perfectly legal and rational behavior. The possession of weapons, especially firearms, as a means of self defense is widely accepted in Alaska as a fundamental right of all citizens, and it is a right which is frequently exercised. The evidence is not excludable under Rule 403.
Defendant's rule 404(b) objection also fails. The evidence is relevant to Gerlay's possible intent to profit from the illicit distribution of drugs, as well as his preparation and plan for dealing with circumstances which might easily arise from doing so. The evidence is material to the proposition that Gerlay was a drug dealer. Gerlay does not assert that the government cannot present sufficient evidence to show that he possessed the weapons. The conduct challenged is not remote in time--indeed, it is contemporaneous. Finally, the challenged conduct is sufficiently similar to the ...