ORDER REGARDING MOTION TO EXCLUDE TESTIMONY OF ROBERT PLETNIKOFF AND LUKE ROBINSON

SHARON L. GLEASON, District Judge.

Before 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.1 With leave of the Court, Mr. Wells filed a reply.2 Neither party requested an evidentiary hearing or oral argument on the motion.

At the 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.3 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."4 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.5 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.6

The 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."7 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."8 The defense replies that the government's position relies on statements made by the witnesses outside of trial that are not relevant.9

The 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."10 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.11 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 . . . ."12 Testimony that Mr. Wells had had access to additional revolvers that are generally consistent with the type of firearm used in the homicides13 has some tendency to make it more probable that Mr. Wells committed the homicides.14 Thus, the testimony has relevance regardless of whether the revolvers Mr. Pletnikoff and Mr. Roberson observed were, in fact, the missing Stein revolver.

Evidence 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.15 The Court finds that the probative value of the testimony is not outweighed by the danger of unfair prejudice.

However, 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.16 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.

In light of the foregoing, IT IS ORDERED that the motion at Docket 1088 is DENIED.