dissenting:

I would affirm the judgment of the district court.

In this Circuit, we will not reverse a district court for abuse of discretion unless we are certain that the judgment of the district court was unreasonable. See Harman v. Apfel, 211 F.3d 1172, 1175 (9th Cir.2000), cert. denied, 531 U.S. 1038 , 121 S.Ct. 628 , 148 L.Ed.2d 537 (2000). As we have previously explained:

Speiser, Krause, & Madole P.C. v. Ortiz, 271 F.3d 884, 887 (9th Cir.2001). Accordingly, reversal for abuse of discretion is inappropriate unless we are firmly convinced that “the reviewed decision lies beyond the pale of reasonable justification under the circumstances.” Harman, 211 F.3d at 1175 .

We also give “considerable deference” to a district court’s decision to exclude evidence under Rule 403 of the Federal Rules of Evidence. McEuin v. Crown Equip. Corp., 328 F.3d 1028, 1035 (9th Cir.2003), *685 cert. denied, 540 U.S. 1160 , 124 S.Ct. 1169 , 157 L.Ed.2d 1204 (2004) (internal quotations omitted). Put differently, the district judge is given wide latitude in determining the admissibility of evidence under this standard, United States v. Fagan, 996 F.2d 1009, 1015 (9th Cir.1993), and we will uphold the district judge’s decision absent clear abuse of discretion. Trevino v. Gates, 99 F.3d 911, 922 (9th Cir.1996).

With these standards in mind, I respectfully dissent from the majority’s opinion. The district court excluded two documents from trial. One document was a declaration from Peake’s wife filed in the couple’s divorce and custody proceeding in 2000. In the context of that proceeding, she stated that Peake abused alcohol and, she believed, other substances. The other document consisted of notes from Peake’s Employee Assistance Program (“EAP”) manager. The EAP manager’s notes indicated that Peake had sought help for an alcohol problem while going through his divorce and that Peake had used illegal drugs on a few occasions outside of work. The district court considered Chevron’s arguments seeking admission of this evidence over the course of two pre-trial conferences. At the end of the second conference, the district court determined that the evidence that Peake had used alcohol and drugs outside of work had little, if any, relevance to Peake’s claims. The district court also determined that even if the declaration and notes were relevant to Peake’s claims, they should be excluded pursuant to Rule 403.

I do not believe the way the district court conducted the Rule 403 balancing test was a clear abuse of discretion. Although the majority argues that the excluded evidence was relevant to Peake’s claims, that is not the question under Rule 403. Even if the excluded evidence was more than minimally probative, it does not follow that it should have been admitted. Rule 403 permits district courts to determine whether relevant evidence should nonetheless be excluded because its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. See Fed.R.Evid. 403. Thus, the district court must weigh the probative value of the evidence against its prejudicial value and use its discretion to determine whether the evidence should be admitted.

Here, the district court first considered the probative value of the excluded evidence and found it minimal at best. The majority questions that finding by asserting that the jury could have drawn certain inferences from the excluded evidence that would have made Peake’s version of the events less probable. For example, the majority contends that, had the jury reviewed the notes and declaration, it could have inferred that Peake had under-reported his bad behavior and was likely to have missed work days as a result of his drug and alcohol use. Thus, the majority argues, the evidence was relevant to the causation element of Peake’s negligence and unseaworthiness claims. The majority also contends that the manager’s notes were relevant to Peake’s breach of contract claim for Chevron’s violation of his return to work agreement because they could support an inference that the parties had agreed that Peake refrain from using prescription drugs as a condition of the agreement.

I do not take issue with the majority’s relevancy arguments. However, I disagree with the majority’s apparent conclusion that the excluded evidence was more than minimally probative. The district court could have reasonably found that the *686 inferences cited by the majority were speculative and only marginally related to Peake’s claims. First, neither the notes nor the declaration indicated that Peake had missed work as a result of alcohol use. Additionally, the notes stated that Peake had only used illegal drugs on a few occasions at a neighbor’s house. The notes did not suggest in any way that Peake had been absent as a result of illegal drug use; if anything, they suggested that the illegal drug use was an aberration. Second, with respect to the breach of contract claim, the return to work agreement expressly addressed the issue of alcohol and illegal drug use and provided an exception for the use of prescription drugs. Thus, it is difficult to see how admitting the EAP manager’s notes would have had any significant bearing on whether Chevron had required Peake to refrain from using prescription drugs. In short, it was within the margins of reason for the district court to find that the evidence only made Chevron’s defense slightly more probable at best, and it was the duty of the district court to take this into account in determining whether to exclude the evidence under Rule 403.

The majority also does not afford the appropriate deference to the district court’s consideration of the prejudicial nature of the excluded evidence. The wife’s declaration was made in the context of a bitter child custody dispute that involved her possible infidelity and allegations of his drug use. 2 Had the declaration been introduced at trial, Peake would have been entitled to offer evidence about the sordid nature of the custody dispute to place his wife’s statements in context and to undermine their credibility. However, the district court had already granted Chevron’s motion in limine to exclude any evidence of the alleged affair between Peake’s wife and a Chevron Shipping executive. Under these circumstances, it was within the discretion of the district court to find that it would have been unfairly prejudicial to admit the declaration without giving Peake the opportunity to attack its evidentiary value.

Moreover, the majority does not discuss the degree of prejudice that can result from introducing only minimally relevant evidence of a plaintiffs sporadic drug and alcohol use. Evidence of drug use is highly prejudicial. See, e.g., United States v. Vizcarra-Martinez, 66 F.3d 1006, 1017 (9th Cir.1995). Given the negative connotations that many people associate with illegal drug use and the very real risk that this type of evidence could improperly influence and sidetrack a jury, it is in fact prudent for a court to be cautious in admitting such evidence where its probative value is slight.

In sum, it appears that the majority has substituted its judgment for that of the district court, and, in so doing, has given too much weight to the probative value of the evidence and not enough weight to its prejudicial nature. Although another district court could have conducted the Rule 403 balancing test differently, I nonetheless remain unconvinced that this district court’s decision to exclude the evidence *687 under Rule 403 lies beyond the pale of reasonable justification. The district court determined that admitting the excluded evidence would have necessarily pulled into the trial Peake’s divorce, the allegations of marital infidelity with a Chevron executive, and the custody battle over Peake’s son that would have caused confusion of the issues and considerable waste of time. The district court weighed these considerations against the probative value of the evidence and found that the balance tipped substantially in favor of exclusion. Because I do not believe this finding constitutes a clear abuse of discretion within substantial margins, I would affirm the judgment of the district court.

. The Honorable Dean D. Pregerson, United States District Judge for the Central District of California, sitting by designation.

. In his answering brief, Peake refers to this declaration as a "hearsay declaration.” Although I did not find any further briefing on this issue, I do not see how Peake's wife’s statements concerning his drug and alcohol use would have been admissible. They are out-of-court statements offered to prove the truth of the matter asserted — that Peake had used alcohol and drugs. As such, they are hearsay. Because it does not appear that the statements are subject to any hearsay exception, I do not think they could have been admitted, regardless of their relevance. Therefore, I believe that the EAP document is the only piece of excluded evidence that matters for purposes of this appeal. On its own, it is even less probative of Peake’s alcohol and drug use.