United States v. Robinson
United States v. Robinson
Opinion of the Court
MEMORANDUM OPINION AND ORDER
In this criminal action, Defendant Ivan L. Robinson is charged with 61 counts of knowingly and intentionally distributing a controlled substance, oxycodone, by writing prescriptions for that drug outside the usual course of professional practice and not for a legitimate medical purpose, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C), as well as 18 U.S.C. § 2. Defendant is also charged with two counts of money laundering and aiding and abetting. Now before the Court are numerous motions in limine addressing a wide range of evidentiary issues.
In Defendant’s [66] Motion in Limine No. 1 to Limit Testimony by Dr. Mark Romanoff Regarding Patients Not Named in Indictment and Legal Standards, Defendant moves the Court under Federal Rules of Evidence 401, 402, 403, and 404(b) to preclude the government’s proposed expert witness, Dr. Mark E. Romanoff, from testifying as to the files of patients who were not named in the Superseding Indictment. Defendant also asks the Court to preclude Dr. Romanoff from testifying as to whether Defendant “failed to meet.the legal requirements of the Controlled Substances Act in prescribing outside the legitimate practice of medicine” because it is a “legal conclusion” that “goes beyond the bounds of appropriate expert opinion.” Defi’s Mot. at 1. Upon consideration of the pleadings,
I. DISCUSSION
. Defendant’s first motion in limine raises two distinct questions: (A) whether evidence regarding patients other than those listed in the Superseding Indictment is admissible, and (B) whether Dr. Romanoff should be allowed "to testify as to “legal standards.” The Court will address each in turn. '
A. Patients Not Named in the Superseding Indictment
'With respect to Defendant’s motion to exclude evidence regarding patients other than those named in the Superseding Indictment, the government’s response is two-fold. First, the government contends that with respect to the- drug distribution counts in the Superseding Indictment, this evidence would be properly admissible under Rule 404(b) to show intent or absence of mistake. Second, the government contends that with respect to:-the money laundering counts in the Superseding Indictment; evidence that Defendant made money from selling illegal prescriptions to patients, regardless of-whether they-are named in'the separate drug distribution counts,- is" admissible evidence of an essential part of the government’s case in chief, and not “other crimes” evidence under Rule 404(b). The admissibility of the evidence with respect to the different claims in this case must be analyzed separately.
1. Drug Distribution Counts
First, the Court finds that evidence regarding patients not specifically named in the Superseding Indictment is admissible under Rule 404(b) with respect to the drug distribution counts, but will limit that evidence under Rule 403 such that the government shall not offer evidence of Defendant’s “practice as a whole,” Def.’s Mot. at 2, which includes approximately 1,800 patients.
The standard for determining whether a prescription is issued within the usual course of professional practice is an objective one. See United States v. Tobin, 676 F.3d 1264, 1283 (11th Cir. 2012) (holding that “whether a prescription is made in the usual course of professional practice is to be determined from an objective, and not subjective, viewpoint”); United States v. Smith, No. CRIM 05-282 MJD/JJG, 2006 WL 3702656, at *3 (D. Minn. Dec. 14, 2006) (“Based on extensive case law, the Court concludes that the law requires an objective standard for the phrase ‘usual course of professional practice.’”) (citing cases). Despite the use of the word “his” in section 1306.04, the government is not required to prove that Defendant was acting outside the usual course of Defendant’s own practice, but instead that he was acting outside the usual course of a generalized, objective professional practice when he issued the charged prescriptions. See United States v. Smith, 573 F.3d 639, 648 (8th Cir. 2009) (holding that “it was not improper to measure the ‘usual course of professional practice’ under § 841(a)(1) and § 1306.04 with reference to generally recognized and accepted medical practices and not a doctor’s self-defined particular practice.”); United States v. Norris, 780 F.2d 1207, 1209 (5th Cir. 1986) (rejecting argument that “the use of the word ‘his’ in the regulation requires the government to prove that he prescribed the drugs for a purpose that was contrary to [defendant’s] own standards of reasonable medical practice.”).- As such, the Court clarifies for the record that with respect to the' counts brought under section 841, which relate only to 61 prescriptions issued to 11 patients, the government is not required to prove the nature of Defendant’s overall practice.
With this framework established, the Court moves on to consider the extent to which evidence regarding Defendant’s practice with respect to patients not listed in the Superseding Indictment could nonetheless be admissible under Rule 404(b). Under Rule 404(b), “[ejvidence of'a crime, wrong, or other act is not admissible to prove a person’s' character in order to show that on a' particular occasion the person acted in accordance with the character,” but “may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Noting that drug distribution under section 841 is a specific intent crime, the government contends that evidence of the fact that Defendant issued other illegal prescriptions is relevant to show intent, “absence of mistake or accident, and a purposeful intentional scheme to make money selling prescriptions.” Gov.’s Opp’n at 8; see also United States v. Johnson, 802 F.2d 1459, 1464 (D.C. Cir. 1986) (“Specific intent is an essential element of a charge under 21 U.S.G. § 841(a) of possession of narcotics with intent to distribute, and the prosecution would have been justified in offering other crimes evidence in its case-in-chief .,'.”). Defendant, on the other hand, contends that evidence of uncharged prescriptions could only be intended as improper character evidence.
The Court finds that evidence- of similar uncharged illegal drug prescribing activity is theoretically proper under Rule 404(b) because it tends to prove Defendant’s intent and absence of mistake when he issued the charged prescriptions. See United States v. Merrill, 513 F.3d 1293, 1299-303 (11th Cir. 2008) (holding that “[a] jury may consider prescription data sets outside
That being said, the Court notes that there are limits on this evidence to the extent it is offered under Rule 404(b). In his motion, Defendant relies extensively on an Eighth Circuit case entitled United States v. Jones, 570 F.2d 765 (8th Cir. 1978). In that case, the court held that evidence of prescriptions other than those named in the indictment was not properly admitted under Rule 404(b) because “[t]he prosecution did not introduce any evidence concerning the doctor-patient relationship existing with, respect to these prescriptions, nor did it present other proof that the prescriptions had not been issued for a proper medical purpose.” Id. at 768. The Eighth Circuit did not hold that evidence of other prescriptions could never be admissible Rule 404(b) evidence, but instead reasoned that “[t]he other prescriptions of Schedule II drugs by [the defendant] to his patients constituted crimes or unlawful acts similar to the crimes charged in the indictment only if [the defendant] issued those prescriptions outside the bounds of professional medical practice.” Id. The Court agrees with this analysis, and herein holds that evidence of other prescriptions in this case is admissible under Rule 404(b) for the reasons set forth above only to the extent the government in fact establishes that those prescriptions were issued illegally — the government may not simply present evidence that other prescriptions were made without any evidence that they were unlawful. The Court does not yet know if the government can or will establish that the other prescriptions were issued outside the bounds of professional practice, but notes that its decision to allow this evidence under Rule 404(b) is contingent on the government doing so.
Despite the fact that this evidence has a proper Rule 404(b) purpose, it also must be balanced against Rule 403 considerations. Under Rule 403, “[t]he court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed. R. Evid. 403. Here, exercising its discretion, the Court finds that the probative value of this Rule 404(b) evidence is substantially outweighed by these dangers to the extent it implicates Defen
That being said, the Court will not preclude this evidence altogether under Rule 403. To the extent it is limited to a reasonable number of other patients, the probative value of this Rule 404(b) evidence is not substantially outweighed by these dangers. The Court will not preliminarily set an exact number of uncharged patients or prescriptions that the government may present evidence on before trial, but does hold that evidence regarding the 24 patients Dr. Romanoff has testified about would not be excessive. See United States v. Clarke, 767 F.Supp.2d 12, 28 (D.D.C. 2011), aff'd sub nom. United States v. Straker, 800 F.3d 570 (D.C. Cir. 2015) (holding that other crimes evidence was not subject to exclusion under Rule 403 in part because “the Court ... minimized the potential for prejudice from the other crimes evidence by restricting the government’s evidence” and “limiting the government’s trial time concerning other crimes evidence,” which “kept the focus of the trial on the'Charged” crime).
2. Money Laundering Counts
With respect to the government’s money ■ laundering charges, the Court agrees with the government that evidence regarding patients not explicitly included in the Superseding Indictment is not Rule 404(b) evidence. In counts 62 and 63 of the Superseding Indictment, the government charges Defendant with knowingly engaging in two monetary transactions with property derived from selling or dealing in controlled substances. Both transactions related to money being used or withdrawn from a particular Bank of America bank account. It is the government’s burden to show that the money used in those transactions derived from an unlawful activity. 18 U.S.C. § -1957(a). In this case, the Court understands that the government intends to offer evidence that shows that Defendant derived money from illegally selling prescriptions, placed that-money into the Bank of America account, and then withdrew money from that account for the purposes of the charged transactions. Evidence that Defendant illegally sold prescriptions to patients then, regardless of whether those patients are named in the drug distribution charges, is not Rule 404(b) or “other crimes” evidence. With respect to the money laundering counts, it is relevant evidence of an element of the charged offense.
However, the Court will exercise its' discretion to similarly limit this evidence in the context of the money -laundering charges under Rule 403 such that the government shall not offer evidence that Defendant illegally sold prescriptions as his entire practice. The Court finds that the probative value of evidence regarding Defendant’s practice as a whole (some
B. Expert Testimony as to “Legal Standards”
Finally, Defendant also moves in his first motion in limine to preclude Dr. Romanoff from testifying as to “whether Mi*. Robinson’s conduct met the legal standards of the Controlled Substances Act.” Def.’s Mot. at 9. Among other things, Defendant takes issue with Dr. Romanoff testifying that Defendant’s prescriptions “fell outside the‘course of a legitimate professional practice” and were not “used for a legitimate medical purpose.” Id.
Defendant’s motion is well-taken only in part. “An expert witness may not deliver legal conclusions on domestic law, for legal principles are outside the witness’ area of expertise under Federal Rule of Evidence 702.” Weston v. Washington Metro. Area Transit Auth., 78 F.3d 682, 684 n.4 (D.C. Cir.), opinion amended on reh’g, 86 F.3d 216 (D.C. Cir. 1996). As such, the Court will not allow Dr. Roma-noff to testify that Defendant’s conduct was “criminal” or “illegal,” that he failed to meet the requirements of or violated the Controlled Substances Act or section 1306.04, or to provide other explicitly legal conclusions. Nor shall Dr. Romanoff purport to explain to the jury the legal meaning of the Controlled Substances Act or section 1306.04. However, the Court finds that it is appropriate for Dr. Romanoff to testify as to the standard of care a health care professional such as Defendant must adhere to in order to properly prescribe oxycodone, and whether prescriptions issued by Defendant were made “for a legitimate medical purpose” and “in the usual course of his professional practice.” Although tracking the regulatory, language, such testimony is permissible because it does not use terms that have “separate,
II. CONCLUSION AND ORDER
For the foregoing reasons, the Court GRANTS-IN-PART and DENIES-IN-PART Defendant’s [66] Motion in Limine No. 1. Accordingly, it is, this 15th day of June, 2017, hereby
ORDERED that Defendant’s [66] Motion in Limine No. 1 is DENIED in that the Court will not exclude all evidence of illegal prescriptions relating to patients not named in the Superseding Indictment. The Court finds that this evidence is proper Rule 404(b) evidence with respect to the drug distribution counts in the Superseding Indictment,-and evidence of the substantive offense with respect to the money laundering counts. The parties shall propose to the Court a jury instruction with respect to the use of this evidence under Rule 404(b). It is further
ORDERED that Defendant’s [66] Motion in Limine No, 1 is GRANTED in that the Court will exclude evidence of illegal prescriptions with regard to Defendant’s entire, overall practice under Rule 403. It is further
ORDERED that Defendant’s [66] .Motion in Limine No. 1 is DENIED in that the Court finds that it is appropriate for Dr. Romanoff to testify as to the standard of care a health care professional must adhere to in order to properly prescribe oxycodone, and whether Defendant’s -conduct demonstrated that a -prescription was made “for, a legitimate, medical purpose” and “in the usual course of his professional practice.” It is further
ORDERED that Defendant’s [66] Motion in Limine No. 1 is GRANTED in that the Court will not allow Dr. Romanoff to testify that Defendant’s conduct was “criminal” or “illegal,” that he failed -to meet the requirements of or violated the Controlled Substances Act or section 1306.04, or to provide other explicitly legal conclusions, nor shall, Dr. Romanoff purport to explain to the jury the legal meaning . of the Controlled Substance Act of section 1306.04.
SO ORDERED.
, The Court’s consideration has focused on the following documents: Defendant’s Motion in Limine No. 1 to Limit Testimony by Dr. Mark Romanoff Regarding Patients Not Named in Indictment and Legal Standards, ECF No. 66 (“Def.’s Mot.”); Government's Consolidated Reply in Opposition to Defense Motions in Limine Nos. 1 and 3, ECF No. 84 ("Gov.’s Opp’n”); Defendant’s Reply in Support of Motions in Limine Nos. 1 and 3, ECF No. 101 ("Def.’s Reply”).
, The Court notes that this motion overlaps to a degree with Defendant’s pending [33] Motion to Exclude Testimony of Dr. Mark Roma-noff, and that certain arguments touching on Dr. Romanoff's proposed testimony will have to wait to be resolved after the hearing on that motion. Defendant distinguishes the two motions by explaining that his Motion to Exclude raises “methodological” concerns regarding Dr. Romanoff’s testimony under Rule 702, whereas his first motion in limine challenges that testimony under other rules of evidence. Def.’s Reply at 2.
. Defendant - argu’es in his motion that the government may not -present this evidence under Rule 404(b) because-'it- did not give formal notice of its intent to do so by a Court-ordered deadline. The government's failure to comply with this deadline 'is - presumably a result of'the fact that the government primarily contends that this evidence is not Rule 404(b) evidence, but instead evidence of á necessary element of its money laundering ■ charges. To the extent the Court finds that the evidence is properly admissible under Rule 404(b), it rejects Defendant’s notice argument because Defendant has been on notice of the content of Dr. Romanoff's proposed testimony since as early as May, 2016.
Reference
- Full Case Name
- United States v. Ivan L. ROBINSON
- Cited By
- 1 case
- Status
- Published