USA v. Gerlay

Filing 117

Final Report and Recommendation, Memorandum Opinion

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

UNITED STATES OF AMERICA
Plaintiff,
vs.
GARY S. GERLAY,

3:09-cr-085-JWS-JDR
FINAL
RECOMMENDATION
REGARDING
MOTION TO DISMISS
[Counts 6 - 9]

Defendant.
(Docket No. 33)
Defendant, Gary Gerlay, has timely filed objections to the initial
recommendation regarding his motion to dismiss Counts 6 through 9. Docket 109.
No additional arguments are presented. The government did not file a reply. Upon
due consideration of the objections, the magistrate judge declines to modify the
recommendation. A few comments regarding the pertinent case law follows.
Dr. Gerlay argues that this court is constitutionally required to dismiss
those counts of the indictment alleging that he unlawfully issued prescriptions to

patient “David K”1 because of alleged prejudice due to pre-indictment delay between
the completion of the acts charged and the return of the indictment by the federal
grand jury in May 2008. David K died about twenty-two (22) months after the
government began its investigation. The defendant claims that he would be forced
to go to trial without access to the testimony of David K who could testify from
personal experience that he needed the medications for the treatment of chronic
pain “and that Dr. Gerlay helped him cope.”

Defendant’s Supplemental

Memorandum, Docket 97, p.5.
In United States v. Marion, 404 U.S. 307, 92 S. Ct. 455 (1971) the
Supreme Court recognized that statutes of limitation do not fully address a
defendant’s right with respect to events that occur prior to an indictment. The
Supreme Court stated: “. . . The Due Process Clause of the Fifth Amendment would
require dismissal of the indictment if it were shown at trial that the pre-indictment
delay in this case caused substantial prejudice to [the defendant’s] rights to a fair
trial and that the delay was an intentional device to gain tactical advantage over the
accused.” 404 U.S. at 324. In Marion the Supreme Court found no violations of the
Due Process Clause where the actual prejudice to the conduct of the defense had
not been proved and there was no showing that the government intentionally

1

December 13, 2004 (Count 6; January 10, 2005 (Count 7); February 7,
2005 (Count 8); and March 7, 2005 (Count 9).
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delayed to gain some tactical advantage over a defendant. Id. at 325. The Marion
court distinguished between the “real possibility of prejudice inherent in any
extended delay” and actual prejudice. Id. at 322-326. The former was held to be
adequately covered by the relevant statutes of limitation, whereas the latter is
protected by the Due Process Clause. United States v. Mays, 549 F.2d 670, 676 (9th
Cir. 1977).
In Mays the Ninth Circuit Court of Appeals discussed the Marion opinion
and adopted an approach favoring the balancing of factors in individual cases rather
than an absolute rule requiring both actual prejudice and improper intentional delay
or the rule that actual prejudice due to pre-indictment delay is enough. 549 F.2d at
677. The Ninth Circuit instructed that an examination must be made by the trial
court as to the length of the delay, its reasonableness and the actual prejudice to the
defendant. Id. at 677-678. Mays held that the trial court erred in concluding that the
defendants had adequately shown actual prejudice from the delay by merely
showing that some witnesses had died and that other witnesses’ memories had
dimmed without showing what the testimony of such witnesses would have been.
The length of time between the commission of the last overt act alleged
in the Mays indictments and the return of the indictment was approximately 4 and
one half years. The Mays court rejected the trial court’s conclusion that the preindictment delay by the government was intentional. At most, the appellate court

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concluded, the government’s failure to prosecute was only negligent. To establish
actual prejudice the defendant must show what evidence was lost due to the delay
and the way that evidence would have helped in the defense at trial. As part of the
balancing considerations the court may consider other evidence available to the
defense. The court need not consider in a vacuum what evidence has been lost due
to the pre-indictment.
Records produced by Dr. Gerlay as exhibits to his motion to dismiss
disclose that David K consistently complained of pain and that the pain was
lessened by the medication. Such records are not determinative of whether David
K was indeed a drug addict. In this regard there is no indication in the records of
how David K would testify in that regard if he were available to be called as a
witness.
Even if Dr. Gerlay’s exhibits were to meet the standard of definite and
non speculative proof of prejudice, that alone is not sufficient to conclude that a trial
on Count 6 through 9 would deny him due process. The government enjoys
significant leeway in their decision as to the timing of an arrest and indictment. 549
F.2d at 678. Of course, an intentional delay by the government for an improper
purpose is not to be sanctioned. Id. No showing of intentional delay in seeking the
indictment after the demise of David K has been shown. Negligent conduct, if such
occurred, is weighed less heavily than deliberate delays. Id.

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The government was not required to conclude its investigative efforts
in seeking an indictment merely upon the demise of David K.

Nor was the

government constitutionally required to put Dr. Gerlay on notice that he was under
investigation and David K might be one of the patients named as a subject of the
indictment.
At this pretrial stage the defendant has not demonstrated by definite and
not speculative proof how the loss of the opportunity to call David K as a witness is
prejudicial to him or that David K would have provided exculpatory information
otherwise not available to the defendant. “An assertion that a missing witness might
have been useful does not show the ‘actual prejudice’ required by Marion.” United
States v. Galardi, 476 F.2d 1072, 1075 (9th Cir.), cert denied, 414 U.S. 839 (1973),
quoted in Mays, 549 F.2d 677. Therefore, the objections lack merit and the
motion to dismiss should be denied.
This matter shall now be forwarded to the assigned district judge for his
determination.
DATED this 11th day of May, 2010, at Anchorage, Alaska.

/s/ John D. Roberts
JOHN D. ROBERTS
United States Magistrate Judge

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