The Federal Fourth Circuit Court of Appeals Orders New Trial for Doctor Charged with Unlawful Distribution of Controlled Substances Because of Improper Admission of Evidence
In vacating Dr. Felix Brizuela’s convictions under 18 U.S.C. §841, the United States Court of Appeals for the Fourth Circuit concluded in its June 19, 2020 opinion, United States v. Felix Brizuela (Case no. 19-4656), that the United States District Court for the District of West Virginia improperly admitted testimony of patients whose treatment was not the basis for the charges identified in the indictment. The Fourth Circuit explained that the testimony of these patients was not “necessary to complete the story of the crime” as is required for admission of evidence of uncharged acts or crimes. Since the erroneous admission of this evidence was not harmless, Dr. Brizuela’s convictions had to be vacated.
Federal Rule of Evidence (“FRE”) 404(b) prohibits the admission of evidence of another “crime, wrong, or other act. . . to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.” FRE 404(b)’s restriction is only applicable when the challenged evidence is unrelated to the charged offense. Evidence is not barred by FRE 404(b) when it “arose out of the same series of transactions as the charged offense . . . or is necessary to complete the story of the crime on trial.” In order to determine the applicability of this exception to the 404(b) limitation in a particular case, the Fourth Circuit explained that a court should take “a hard look” to “ensure that there is a clear link or nexus between the evidence and the story of the charged offense,” and that “the purpose for which the evidence is offered is actually essential.”
Only two of the five patients whose treatment was charged in the indictment testified at Dr. Brizuela’s trial, but the Government also introduced the testimony of four additional patients, whose treatment was not the basis for any of the charges. In vacating Dr. Brizuela’s conviction, the Fourth Circuit concluded that the testimony of those four additional patients did not describe acts that “arose out of the same... .series of transactions as the charged offense[s]...” The Fourth Circuit explained that a doctor’s violation of §841 is prescription-specific and conduct only violates §841 if the doctor strays from bounds of professional medical practices in treating the specific patient identified on the prescription. The Court emphasized that the stories of these four additional patients “constituted ‘overkill’ or ‘piling-on’ by the prosecution, which invited the jury ‘to find guilt by association or as result of a pattern,’ rather than examining whether sufficient evidence supported a conviction under each count in the indictment.” The Fourth Circuit also rejected the Government’s secondary argument, that the testimony of these additional patients was necessary to show that Dr. Brizuela’s issuance of the charged prescriptions was not by mistake. In rejecting this argument, the Court reasoned that the Government failed to explain why showing that the prescriptions were not written by mistake was probative of an essential element of the §841 violations. The Court further refused to find this erroneous admission of patient testimony harmless because the Government failed to carry its burden to demonstrate harmlessness, twice as many patients testified about uncharged conduct as those who testified about the charged conduct, and the patients whose treatment was uncharged testified in a “dramatic” manner.
Nathans & Ripke LLP is a highly respected advocate for individuals and businesses involved in a broad spectrum of white-collar criminal and civil disputes, forfeitures, and attorney grievance matters. Attorney Robert Biddle has many years of defending healthcare-related companies, physicians, and other executives and witnesses in criminal health care investigations. With offices in Baltimore, Annapolis, and Greenbelt, we represent clients across Maryland (both federal and state courts), the Washington D.C. area, and several other federal courts across the country.