United States District Court, D. Alaska
ORDER REGARDING MOTION TO EXCLUDE TESTIMONY OF ROBERT
PLETNIKOFF AND LUKE ROBINSON
L. GLEASON UNITED STATES DISTRICT JUDGE.
the Court at Docket 1088 is Defendant James Michael
Wells' Motion to Exclude Testimony of Government
Witnesses Robert Pletnikoff and Luke Robinson. The government
filed a response. With leave of the Court, Mr. Wells filed a
reply. Neither party requested an evidentiary
hearing or oral argument on the motion.
first trial of this case, the government called witnesses
Robert Pletnikoff and Luke Robinson in its case-in-chief. Mr.
Pletnikoff testified that he had known Mr. Wells for at least
20 years and that they had hunted together. He testified that
one time in 1998 he saw Mr. Wells with a large
stainless-steel revolver, “probably a .357, .44,
something in that nature, ” that had a handle that
“was either dark wood or brown plastic, or something
like that.” Mr. Robinson testified that he had been
friends with one of Mr. Wells' sons during high school,
and that on one occasion in high school when he was at the
Wells' residence he saw a silver revolver on the kitchen
table. He testified that the silver revolver was
“comparable” to the Smith & Wesson revolvers
his own father owned, that it might have been a .357, but
that he was not sure of the make or model.
defense asserts that “both of these individual's
[sic] testimony should be excluded as it is remote,
irrelevant, speculative, argumentative, and unfairly
prejudicial. It should be excluded pursuant to F.R.E. 401,
403, 404, and 608.” The government responds by citing to
other circuits' caselaw regarding the definition of
relevance and prejudice, maintaining that the testimony is
relevant because “the standard for relevance is a low
one-does the evidence have any tendency to prove or disprove
the disputed fact?” and that it is not violative of
Evidence Rule 403 because “[t]he fact that the evidence
may tend to convict the defendant does not make it unfairly
prejudicial.” The defense replies that the
government's position relies on statements made by the
witnesses outside of trial that are not
witnesses' testimony is relevant, as it “has any
tendency” to make a fact of consequence “more or
less probable than it would be without the
evidence.” First, it may support the
government's theory that Mr. Wells was seen with the
missing Stein revolver approximately one year after Mr. Stein
had left it at the Wells' residence.Second, as the
defense noted in its motion, “the facts show that it is
more likely that the guns that Pletnikoff and Robinson
observed were NOT the Stein gun . . . .” Testimony
that Mr. Wells had had access to additional revolvers that
are generally consistent with the type of firearm used in the
homicides has some tendency to make it more
probable that Mr. Wells committed the
homicides. Thus, the testimony has relevance
regardless of whether the revolvers Mr. Pletnikoff and Mr.
Roberson observed were, in fact, the missing Stein revolver.
Rule 403 directs a court to exclude relevant evidence it its
probative value is substantially outweighed by a danger of
unfair prejudice. The defense has identified a number of
areas of cross-examination it may explore with Mr. Pletnikoff
and Mr. Robinson. The Court finds that the probative value
of the testimony is not outweighed by the danger of unfair
similar to the testimony of John and Terry Stein, as a
measure against any unfair prejudice the government is
cautioned to avoid stating or implying that the stainless
steel or silver revolvers were, in fact, the firearm used in
the homicides or that they were the Stein
revolver. The government may introduce testimony
from experts and lay witnesses that supports its theory that
Mr. Wells had access to firearms that could have been used to
commit the homicides, but the current record contains a
paucity of evidence directly linking the stainless steel or
silver revolvers to the homicides-or to the missing Stein
revolver-that warrants caution when presenting this theory to
the jury. Unless more definitive evidence is presented at
trial, referring to the stainless steel or silver revolvers
as being the murder weapon, the likely murder weapon, or
definitively the Stein revolver would be an improper
reference to facts not in evidence.
light of the foregoing, IT IS ORDERED that the motion at
Docket 1088 is DENIED.
 Docket 1108.
 Docket 1132.
 Docket 1088-1 at 2-3.
 Docket 1088-1 at 3-5, 8. Mr.
Pletnikoff testified that he never saw the revolver outside
of the “western style holster” Mr. Wells used to
carry it. Docket 1088-1 at 8-9. Mr. Pletnikoff testified
before the Grand Jury that he was not certain if the revolver
was made of stainless steel. Docket 1088-1 at 11. He later
told government investigators that ...