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Law Digest — Md. Court of Special Appeals, US Court of Appeals for the 4th Circuit — June 25, 2020


Maryland Court of Special Appeals

Family Law; Discovery sanctions: In a child custody case, the circuit court erred by precluding the mother from presenting evidence as a discovery sanction without first considering whether that evidence was relevant to the court’s determination of the best interests of the children. A.A. v. Ab.D., No. 3499, Sept. Term, 2018.

U.S. Court of Appeals for the 4th Circuit

Criminal Law; Qualified immunity: Where state government officials were charged under the False Claims Act with defrauding the federal government when obtaining federal funding for a telecommunications program, the district court erred in deferring for further factual development the defendants’ motion to dismiss on the grounds of qualified immunity, because such immunity is not a defense to claims brought under the Act and the motion, instead of being deferred, should have been denied. United States Ex Rel. Citynet, LLC v. Jimmy Gianato and Gale Given, No. 18-1575.

Evidence; Uncharged offenses testimony: Physician’s conviction on multiple counts of illegal opioid prescription writing was reversed because the district improperly admitted testimony from several patients whose treatment by the physician was not the basis for any of the charges in the indictment and since such testimony was not necessary to “complete the story” of the charged offenses. United States v. Felix Brizuela, Jr., No. 19-4656.

Maryland Court of Special Appeals

Family Law

Discovery sanctions

BOTTOM LINE: In a child custody case, the circuit court erred by precluding the mother from presenting evidence as a discovery sanction without first considering whether that evidence was relevant to the court’s determination of the best interests of the children.

CASE: A.A. v. Ab.D., No. 3499, Sept. Term, 2018 (filed June 5, 2020) (Judges Fader, LEAHY & Eyler, D. (Senior Judge, Specially Assigned)).

FACTS: A.A. and Ab.D. were the parents of two children: I.D., born in 2005; and A.D., born in 2009. A.A. and Ab.D. lived together with I.D. and A.D. until 2010, when, according to A.A., she left the family home and established a separate residence for herself and the children. Ab.D., in turn, moved to Florida in 2011. In 2016, he returned to Maryland with his new wife.

In 2011, A.A. filed a complaint in the circuit court requesting, among other things, sole legal and physical custody of the children. Ab.D. was served with process but failed to file an answer to the complaint, and A.A.’s request for an order of default was granted with leave to present testimony in the circuit court in support of her complaint for sole legal and physical custody. Ab.D. did not challenge the order of default. Following a hearing, the circuit court awarded A.A. sole legal and physical custody of I.D. and A.D on November 18, 2011. The court further ordered that any visitation by Ab.D. with the minor children be established by prior agreement with A.A. with adequate notice to A.A. and be supervised by A.A.’s brother.

On October 23, 2015, Ab.D. filed a motion for modification of visitation. On June 2, 2016, Ab.D. amended his motion to indicate that he had relocated to Montgomery County, Maryland, for the sole purpose of being closer to his children, and that he lived close enough to the minor children to allow for frequent, consistent, and unsupervised visits. On June 7, 2016, the circuit court ordered a custody and visitation evaluation.

The court-appointed custody evaluator appeared on August 26, 2016, and presented her findings and recommendations. Following three days of hearings, the circuit court ruled that it was in the children’s best interest for A.A. to have primary physical custody and sole legal custody, but for Ab.D. to have unsupervised access to the children. Almost two years later, on July 27, 2018, Ab.D. filed a motion for modification of custody, alleging that in part that A.A. had denied him access to the children and unilaterally altered the court-ordered visitation schedule. A hearing on Ab.D.’s motion to modify custody was set for March 18, 2019.

In anticipation of the hearing on his amended motion for modification, on November 27, 2018, Ab.D. propounded interrogatories and a request for production of documents. Thereafter, new counsel for A.A. entered her appearance, and A.A.’s prior counsel withdrew from the case. A.A., though her new counsel, sent by electronic mail her responses to Ab.D.’s interrogatories on January 3, 2019. Of the 23 interrogatories propounded to A.A., A.A.’s counsel objected and did not otherwise respond to eight, and also omitted the contact information of the individuals whom A.A. identified as having knowledge of the facts underlying the case. A.A.’s counsel did not respond to Ab.D.’s request for production of documents until February 14, 2019, almost three months after they were served. Of Ab.D.’s 65 discovery requests, counsel objected to 50.

On February 15, 2019, Ab.D.’s counsel filed a motion to compel discovery and request for sanctions. On March 13, 2019, Ab.D.’s counsel filed a second motion to compel, along with a motion seeking to require A.A. to respond by noon of the following day. The court instructed A.A. to file an answer to Ab.D.’s motion by 3:30 p.m. on March 14, 2019. A.A.’s counsel did not respond until March 18, 2019, the first day of the hearing on the motion to modify custody.

At the hearing, the circuit court received argument on Ab.D.’s second motion to compel. Counsel for Ab.D. moved in limine to exclude, as a discovery sanction, both the testimony of witnesses for whom A.A. had failed to provide contact information and, with the exception of financial documents, any evidence A.A. had declined to produce during discovery. The court granted Ab.D.’s motion and then proceeded with a hearing on the motion to modify custody.

Ab.D.’s counsel called A.A. s the first witness, but the court limited her testimony to the subjects she had addressed in her answers to Ab.D.’s interrogatories. A.A. was not permitted to call any witnesses because her counsel had failed to provide their contact information in her discovery responses. At the conclusion of the hearing, the court determined that the best interests of the children would be served by changing the custodial arrangement. Among other things, the trial court ordered joint legal and shared physical custody and gave Ab.D. tie-breaking authority.

A.A. appealed to the Court of Special Appeals, which reversed the judgment of the circuit court and remanded the case.

LAW: A.A. argued that the circuit court failed to consider the best interests of the children by precluding A.A. from introducing relevant evidence in a custody proceeding as a discovery sanction for A.A.’s failure to adequately respond to Ab.D.’s discovery requests. Relying on Flynn v. May, 157 Md. App. 389 (2004), she asserted that those sanctions deprived the children of their right to have a custody determination made after a full evidentiary hearing to determine whether such a change would be in the children’s best interest, and “resulted in a limited and biased presentation of the case.” Therefore, she contended, the court abused its discretion by sanctioning her for having failed to fulfill her discovery obligations.

Unfortunately, as happens in child custody cases, one or more parties may fail to comply with their discovery obligations. Maryland Rule 2-433 provides two separate mechanisms by which a court may levy sanctions against a recalcitrant party. Warehime v. Dell, 124 Md. App. 31, 54 (1998). First, a court may, on motion by a discovering party, impose immediate sanctions against the failing party if the court “finds a failure of discovery.” Md. Rule 2-433(a). The court “may enter such orders in regard to the failure as are just,” including: (1) an order designating facts as established for the purpose of the action; (2) an order refusing to allow the failing party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters in evidence; or (3) an order striking out pleadings or parts thereof, or staying further proceeding until the discovery is provided, or dismissing the action or any part thereof. Md. Rules 2-433(a). Second, pursuant to Rule 2-433(c), the court may impose sanctions for a failure to obey an order compelling discovery. Warehime, 124 Md. App. at 54. (discussing former version of Md. Rule 2-433(c).

In addition to its authority under the Maryland Rules to impose sanctions, a trial court also has the power to impose sanctions as part of the court’s inherent power to control and supervise discovery. Gallagher Evelius & Jones, LLP v. Joppa Drive-Thru, Inc., 195 Md. App. 583, 596 (2010). It is axiomatic that when a party willfully withholds documents, prospective witnesses’ contact information, and other information requested by a discovering party, the court may bar the withholding party from introducing such evidence at trial. Bartholomee v. Casey, 103 Md. App. 34, 48 (1994). However, in a child custody case, the court has an absolute and overriding obligation to conduct a thorough examination of all possible factors that impact the best interests of the child. Montgomery Cty. Dep’t of Soc. Servs. v. Sanders, 38 Md. App. 406, 420 (1977); see also Flynn v. May, 157 Md. App. 389, 411 (2004). The best interest standard has been characterized as of “transcendent importance” in any child custody case. Dietrich v. Anderson, 185 Md. 103, 116 (1945).

In the present case, the circuit court erred in prohibiting A.A. from presenting any testimony or evidence, aside from the limited information A.A. provided in response to Ab.D.’s discovery requests, without considering the impact that the sanction would have on the best interests of the children. Although the court’s conclusion that A.A.’s responses were deficient and sanctionable was not to be disturbed, the court’s discovery sanction effectively precluded the court from considering potentially significant evidence directly relevant to the relevant factors in its determination of what custody arrangement would be in the best interests of the children. By foreclosing A.A.’s opportunity to introduce evidence of Ab.D.’s past conduct, the court was unable to assess completely Ab.D.’s fitness to have custody of I.D. and A.D., let alone tie-breaking authority. See Hild v. Hild, 221 Md. 349, 357 (1960).

In sum, Maryland law has long recognized that a court commits legal error when it makes a decision that impacts a custody determination without first considering how that decision will affect the child’s “indefeasible right” to have his or her best interests considered. See Flynn, 157 Md. App. at 410. As a matter of first impression, it was error for the court to impose a discovery sanction that precluded the court from receiving evidence without first ascertaining whether the evidence was relevant in determining which custody arrangement was in the best interests of the children. Accordingly, the judgment of the circuit court was vacated and the case was remanded to that court to reassess the best interests of the children after a full presentation of evidence the court deemed relevant to that determination. On remand, the circuit court could also impose sanctions on A.A. for her discovery abuses in a manner that did not impact the court’s analysis of the children’s best interests, and could order a further custody evaluation to assist with its determination.

COMMENTARY: As a preliminary matter, the Court of Special Appeals addressed A.A.’s motion to strike Ab.D.’s appellee brief, which A.A. raised in her reply. Although Ab.D. timely filed his brief on February 20, 2020, his certificate of service, erroneously indicated that two copies had been mailed to A.A. on December, 20, 2017. A.A. alleged that Ab.D. failed to serve his appellee brief “with a valid certificate of service” and that the clerk should not have accepted Ab.D.’s brief. Ab.D.’s counsel filed an amended certificate of service on March 11, 2020, the day after A.A. filed her reply brief, in which counsel certified that two copies of the appellee brief had been mailed to A.A. on February 19, 2020.

Maryland Rule 1-323 directs the court clerk not to accept “for filing any pleading or other paper requiring service, other than an original pleading, unless it is accompanied by an admission or waiver of service or a signed certificate showing the date and manner of making service.” Md. Rule 1-323. The Rule further provides that a certificate of service is prima facie proof of service. Here, while the original certificate of service provided the wrong date, the certificate did meet the literal requirements of Rule 1-323 by providing the date and manner of service. Accordingly, the clerk had no discretion but to accept Ab.D.’s appellee brief. Given that there was no evidence that A.A. was prejudiced by the typographical error in the original certificate of service, there was no basis for striking the appellee brief. Therefore, A.A.’s motion to strike was denied.

PRACTICE TIPS: Maryland courts have identified a number of non-exclusive factors as relevant to the best interest of the child in a child custody case. These factors include: (1) fitness of the parents; (2) character and reputation of the parties; (3) desire of the natural parents and agreements between the parties; (4) potentiality of maintaining natural family relations; (5) preference of the child; (6) material opportunities affecting the future life of the child; (7) age, health, and sex of the child; (8) residences of parents and opportunity for visitation; (9) length of separation from the natural parents; and (10) prior voluntary abandonment or surrender.

U.S. Court of Appeals for the 4th Circuit

Criminal Law

Qualified immunity

BOTTOM LINE: Where state government officials were charged under the False Claims Act with defrauding the federal government when obtaining federal funding for a telecommunications program, the district court erred in deferring for further factual development the defendants’ motion to dismiss on the grounds of qualified immunity, because such immunity is not a defense to claims brought under the Act and the motion, instead of being deferred, should have been denied.

CASE: United States Ex Rel. Citynet, LLC v. Jimmy Gianato and Gale Given, No. 18-1575 (decided June 22, 2020) (Judges Wilkinson, NIEMEYER & Motz).

COUNSEL: Geoffrey A. Cullop, Pullin, Fowler, Flanagan, Brown & Poe, PLLC, Charleston, WV, for Appellants. Benjamin L. Bailey, Bailey & Glasser LLP, Charleston, WV, for Appellee.

FACTS: Under the American Recovery and Reinvestment Act of 2009, Congress appropriated approximately $4.7 billion in federal funds for the Broadband Technology Opportunities Program, seeking to create jobs and expand broadband access in rural and underserved communities. On behalf of the Executive Office of the State of West Virginia, Jimmy Gianato and Gale Given submitted an application for funding under the Program with a proposal which would link a telecommunications carrier’s core network to local hubs, such as schools, libraries, and healthcare facilities. In February 2010, the Executive Office received a grant of $126 million in Program funding for that project.

Citynet, LLC was a communications service provider that had unsuccessfully applied for Program funding. Acting on behalf of the United States, Citynet commenced a “qui tam” action against Gianato and Given alleging that they defrauded the United States when obtaining Program funding in violation of the False Claims Act (“FCA”), 31 U.S.C. §3729. Specifically, Citynet alleged that Gianato and Given, respectively the Director of the West Virginia Division of Homeland Security and Emergency Management and the State Technology Officer, knowingly submitted false statements and records to the federal government as part of their application for the funding and, once the funding was obtained, made false claims in drawing down funds under the Program.

Defendants moved to dismiss the complaint, asserting, inter alia, that they were entitled to qualified immunity. The district court ruled, in pertinent part, that the determination of whether defendants are entitled to the defense of qualified immunity had to be deferred until a later time because that question required further fact-finding with respect to each official’s state of mind in allegedly violating the FCA.

Defendants filed an interlocutory appeal, claiming that, because qualified immunity is immunity from suit, they ought to be shielded from participating in further proceedings before the district court. The 4th Circuit held that, since qualified immunity does not apply to protect government officials from claims against them for fraud under the Act, defendants’ motion should not have been deferred, but rather it should have been denied.

LAW: When applicable, the doctrine of “[q]ualified immunity shields federal and state officials from money damages” in cases alleging violations of either “statutory or constitutional right[s].” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011). But the 4th Circuit we has yet to address the more specific question of whether qualified immunity may be invoked as a defense to claims brought under the FCA — the resolution of which turns on whether the FCA’s scienter requirement is inconsistent with the doctrine.

Originally passed in 1863 in response to widespread fraud against the government during the American Civil War, “the FCA is a fraud prevention statute” that imposes liability on those who defraud federal government programs. United States ex rel. Owens v. First Kuwaiti Gen. Trading & Contracting Co., 612 F.3d 724, 728 (4th Cir. 2010). In its current version, the FCA provides that suit may be brought against “any person” who, inter alia, “knowingly presents, or causes to be presented, [to the federal government] a false or fraudulent claim for payment or approval”; “knowingly makes, uses, or causes to be made or used, a false record or statement material to a false or fraudulent claim”; or conspires to commit such acts. 31 U.S.C. §3729(a)(1)(A)–(C). “In adopting the FCA, the objective of Congress was broadly to protect the funds and property of the government.” Owens, 612 F.3d at 728.

The FCA requires explicitly that, to be liable under the Act, the defendant must have acted “knowingly.” And it defines “knowingly” to “mean that a person, with respect to information — (i) has actual knowledge of the information; (ii) acts in deliberate ignorance of the truth or falsity of the information; or (iii) acts in reckless disregard of the truth or falsity of the information.” 31 U.S.C. §3729(b)(1)(A). This element is so defined to ensure that liability is not imposed for “honest mistakes or incorrect claims submitted through mere negligence.” Owens, 612 F.3d at 728. Thus, FCA liability attaches only where a person has acted intentionally or recklessly.

Yet, by acting intentionally or recklessly, a government official necessarily forfeits any entitlement to qualified immunity. See al-Kidd, 563 U.S. at 743 (explaining that qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law”). Stated otherwise, qualified immunity does not protect government officials when they act to violate the law with actual knowledge, deliberate ignorance, or reckless disregard of a risk to a constitutional or statutory right. See, e.g., Washington v. Wilmore, 407 F.3d 274, 283–84 (4th Cir. 2005) (reasoning that qualified immunity may not shield government officials who knowingly create or use false evidence to obtain a criminal conviction).

Thus, the state of mind required to establish liability under the FCA is also sufficient to preclude immunity protection, and therefore immunity cannot protect a public official from a suit alleging a claim under the FCA. In order to have violated the FCA, a government official would have necessarily had to act in a manner inconsistent with the type of “reasonable but mistaken judgments” qualified immunity is designed to shield. al-Kidd, 563 U.S. at 743.

In sum, qualified immunity may not be invoked as a defense to liability under the FCA. See Samuel v. Holmes, 138 F.3d 173, 178 (5th Cir. 1998). By deferring the issue for further factual development, the district court implicitly assumed that government officials could invoke qualified immunity as a defense to FCA claims. The court erred, therefore, since Gianato and Given cannot claim qualified immunity as a defense to Citynet’s FCA claims.

Accordingly, the 4th Circuit vacated the district court’s ruling deferring defendants’ motion for further factual development and remanded with the instruction that the court deny the motion to dismiss on the basis of qualified immunity.


Uncharged offenses testimony

BOTTOM LINE: Physician’s conviction on multiple counts of illegal opioid prescription writing was reversed because the district improperly admitted testimony from several patients whose treatment by the physician was not the basis for any of the charges in the indictment and since such testimony was not necessary to “complete the story” of the charged offenses.

CASE: United States v. Felix Brizuela, Jr., No. 19-4656 (decided June 19, 2020) (Judges Motz, Harris & QUATTLEBAUM).

COUNSEL: Philip Urofsky, Washington, Shaina L. Schwartz & Sahand Farahati, Shearman & Sterling LLP, New York, NY, for Appellant. William J. Powell and Sarah E. Wagner, Office of the United States Attorney, Clarksburg, West Virginia, for Appellee.

FACTS: Felix Brizuela was a Doctor of Osteopathic Medicine and a board-certified neurologist who operated a medical practice in Morgantown, West Virginia. He offered pain management services, including prescribing patients opioid pain killers such as oxycodone and oxymorphone – Schedule II controlled substances under the Controlled Substances Act (“CSA”), 21 C.F.R. §1308.12(b)(1). Brizuela also worked at Advance Healthcare, a clinic in Weirton, West Virginia, which treated patients for opioid addiction by prescribing them Suboxone, a medication designed to reduce opioid withdrawal symptoms and the desire to use opioids. Suboxone is a Class III controlled substance because it contains buprenorphine, another habit-forming opioid.

The DEA began investigating Brizuela after it received complaints from a pharmacist, the West Virginia Board of Pharmacy and a patient’s mother about Brizuela’s prescription-writing practices. Upon reviewing Brizuela’s prescriptions recorded by the West Virginia Controlled Substances Monitoring Program, agents confirmed that he was prescribing dangerous and unusual mixes of opioids and other drugs.

Federal and state investigators executed a search warrant to obtain patient files, medical charts, insurance documents and other materials from Brizuela’s Morgantown practice. Among the items seized were pre-signed, blank prescriptions from Brizuela’s prescription pad as well as sheets from his prescription pad that had been dated and filled out with the type of controlled substance to be prescribed, but not signed. On the day of the raid, Brizuela told investigators that he was relieved to give up his prescribing authority because the patients receiving Schedule II drugs from him were “pill-seekers and addicts” that he no longer wished to treat.

While reviewing hundreds of patient files to evaluate whether Brizuela subjected his patients to regular urine drug tests, investigators found that 63% contained at least one inconsistent urine drug screen test, and 42% contained multiple inconsistent urine drug screens. Moreover, emails between Brizuela and the testing lab showed that he prescribed opioids to his patients prior to, and sometimes without ever, receiving the results of urine drug screens tests.

Brizuela was indicted on 21 counts of distributing controlled substances outside the bounds of professional medical practice, each related to specific prescriptions written for five of Brizuela’s patients, in violation of 21 U.S.C. §§841(a)(1), (b)(1)(C). The 21 prescriptions charged in the indictment were written for five patients, only two of whom testified at trial. Over Brizuela’s objection, the government also called four other patients who he treated, but whose prescriptions were not the basis for any of the charges in the indictment, to testify at trial.

The jury found Brizuela guilty of fifteen counts of distribution of controlled substances outside the bounds of professional medical practice. The district court sentenced Brizuela to 48 months in prison and 3 years of supervised release.

Brizuela appealed to the 4th Circuit, which reversed.

LAW: Brizuela argued that the district court erred in admitting the testimony of the four unrelated patients under the “Kennedy doctrine,” United States v. Kennedy, 32 F.3d 876 (4th Cir. 1994) and Federal Rule of Evidence 404(b), which allows courts to admit evidence of uncharged acts or crimes if they are “necessary to complete the story of the crime on trial.” Kennedy, 32 F.3d at 885.

Federal Rule of Evidence 404(b) prohibits admitting 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.” Fed. R. Evid. 404(b)(1). Such “propensity evidence is excluded because it might ‘overpersuade’ a jury and cause them to ‘prejudge one with a bad general record.’” United States v. Queen, 132 F.3d 991, 995 (4th Cir. 1997) (quoting Michelson v. United States, 335 U.S. 469, 475–76 (1948)). But the Rule allows the admission of evidence of other acts or crimes if used to prove “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Fed. R. Evid. 404(b)(2).

Critically, however, “not all prior ‘bad act’ evidence is encompassed by Rule 404(b).” United States v. McBride, 676 F.3d 385, 396 (4th Cir. 2012). Instead, the rule is “only applicable when the challenged evidence is extrinsic, that is, separate from or unrelated to the charged offense.” United States v. Bush, 944 F.3d 189, 195 (4th Cir. 2019). In contrast, acts that are a part of, or “intrinsic to, the alleged crime do not fall under Rule 404(b)’s limitations on admissible evidence.” Id. at 195–96. (quoting United States v. Chin, 83 F.3d 83, 87–88 (4th Cir. 1996)).

When tasked, as here, with determining whether uncharged conduct is intrinsic to the charged offenses, the 4th Circuit has consistently held that such conduct is intrinsic, and not barred by Rule 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.” Kennedy, 32 F.3d at 886.

In Kennedy—the Court’s seminal case on the “complete the story” doctrine—the defendant was charged with conspiracy to distribute cocaine. The trial court admitted testimony describing Kennedy’s drug distribution activities with suppliers not named in his federal indictment. On appeal, Kennedy argued that the testimony constituted impermissible “other crimes” evidence under Fed. R. Evid. 404(b) because it described a separate conspiracy that involved different people and fell outside the conspiracy time period charged in the indictment.

The Court rejected this argument, holding that the testimony “constituted predicate evidence necessary to provide context to the [federally charged] drug distribution scheme” because it “proved Kennedy’s participation in drug distribution activities, and addressed Kennedy’s sources for the cocaine that he supplied…during the charged conspiracy period.” Id. at 885–86. Additionally, it was held that the testimony “served as evidence of a subset of the charged conspiracy—Kennedy’s own distribution network—that helped the jury to understand how Kennedy’s group obtained its cocaine and how that group related to and became part of the bigger [drug] conspiracy.” Id. at 886. As such, the testimony “did not constitute ‘other crimes’ evidence under Rule 404(b)” because it “served to complete the story of the crime on trial.” Id.

In contrast, in United States v. McBride, 676 F.3d 385, 389–90 (4th Cir. 2012), McBride was charged with possession of cocaine with the intent to distribute, stemming from a 2009 drug sale. At trial, the government elicited testimony describing a 2008 encounter during which a confidential police informant attempted to purchase crack cocaine from McBride. The Court rejected the argument that the 2008 encounter arose out of the same series of transactions as, or completed the story of, his possession of cocaine in 2009 because nothing that occurred in the 2008 sale was necessary to ‘complete the story’ of the crimes alleged at the club.” Id. Instead, the evidence was “relevant primarily to establish McBride’s character as a ‘drug dealer’” and constituted “the very type of evidence that the limitation imposed by Rule 404(b) was designed to exclude.” Id. at 398.

Here, the testimony of the four unrelated patients was not necessary to “complete the story” of the charged offenses and, therefore, described conduct that was extrinsic to the offenses for which Brizuela was charged. First, the testimony did not describe acts that “arose out of the same…series of transactions as the charged offense[s].” Kennedy, 32 F.3d at 885. Under the CSA and accompanying regulations, registered doctors are prohibited from writing a prescription for controlled substances if the prescription is not “issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice.” United States v. Hurwitz, 459 F.3d 463, 475 (4th Cir. 2006). Accordingly, a doctor “knowingly…issuing such a purported prescription shall be subject to the penalties provided for violations” of §841. An unlawful distribution violation under §841 is, therefore, charged by citing a specific prescription.

Each of Brizuela’s §841 charges properly identified a different prescription that he wrote for one of five patients. For each of these charges, the “transaction” in question was Brizuela writing the specific prescription listed in that count of the indictment. Significantly, the challenged testimony of the four other patients did not reference or encompass any of the 21 prescriptions listed in the indictment. Thus, none of the acts they described arose from the same transaction, series of transactions or single criminal episode as the charged offenses.

Furthermore, none of the conduct described by these four patients was “necessary to complete the story of the crime[s] on trial.” Kennedy, 32 F.3d at 885. The testimony did not, for example, offer facts that were necessary to prove a specific element of a charged offense or provide information that was essential to understanding how the offense was committed. Instead, the testimony offered new patient stories that were neither the basis for, nor necessary to prove, any of Brizuela’s charges. These new stories 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. United States v. Tran Trong Cuong, 18 F.3d 1132, 1142 (4th Cir. 1994).

It was held, therefore, that the challenged testimony did not fall within Kennedy’s “complete the story” doctrine and was not otherwise intrinsic to Brizuela’s §841 offenses. It was further concluded that the government did not carry its burden of establishing that this error was harmless.

Accordingly, the judgment of the district court was reversed, Brizuela’s conviction was vacated and the matter was remanded for a new trial.


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