United States v. David Lague ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-10500
Plaintiff-Appellee,
D.C. No.
v. 4:17-cr-00150-HSG-1
DAVID LAGUE,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Northern District of California
Haywood S. Gilliam, Jr., District Judge, Presiding
Argued and Submitted May 12, 2020
San Francisco, California
Filed August 20, 2020
Before: J. Clifford Wallace and Ryan D. Nelson, Circuit
Judges, and James S. Gwin, * District Judge.
Opinion by Judge Wallace
*
The Honorable James S. Gwin, United States District Judge for the
Northern District of Ohio, sitting by designation.
2 UNITED STATES V. LAGUE
SUMMARY **
Criminal Law
The panel affirmed a former physician’s assistant’s
conviction for distributing controlled substances outside the
usual course of professional practice and without a
legitimate medical purpose to five of his former patients, in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(c), and (b)(2).
The panel held that uncharged prescriptions of controlled
substances in enormous quantities and in dangerous
combinations support a reasonable inference that the
underlying prescriptions were issued outside the usual
course of professional practice and without a legitimate
medical purpose. The panel wrote that the defendant’s
practice-wide evidence was therefore probative of his
unlawful intent, undermining his defense at trial that the
charged prescriptions amounted to “a few bad judgments.”
The panel concluded that because the prescription data made
the intent element of the section 841 charges more probable,
the district court properly admitted the defendant’s
uncharged prescriptions under Fed. R. Evid. 404(b).
The panel assumed, without deciding, that the district
court abused its discretion under Fed. R. Evid. 403 by failing
to preview all of the underlying prescription data before
admitting it into evidence, but held that any error was
harmless based on the overwhelming evidence of guilt.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. LAGUE 3
The panel resolved remaining evidentiary objections in a
concurrently-filed memorandum disposition.
COUNSEL
Leah Spero (argued), Spero Law Office, San Francisco,
California, for Defendant-Appellant.
Joshua Halpern (argued), Attorney, United States
Department of Justice, Washington, D.C.; Merry Jean Chan,
Chief, Appellate Section; David L. Anderson, United States
Attorney; United States Attorney’s Office, San Francisco,
California; for Plaintiff-Appellee.
OPINION
WALLACE, Circuit Judge:
David Lague, a former physician’s assistant, was
convicted of thirty-nine counts of distributing controlled
substances outside the usual course of professional practice
and without a legitimate medical purpose to five of his
former patients, in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(c), and (b)(2). Lague appeals from his judgment of
conviction, arguing that the district court erred in allowing
the government to present evidence of his uncharged
practice-wide prescriptions. 1 We have jurisdiction under
28 U.S.C. §§ 1291 and 1294, and we affirm.
1
We resolve Lague’s remaining evidentiary objections in a
concurrently-filed memorandum disposition.
4 UNITED STATES V. LAGUE
I.
In 2007, Lague began working as a physician’s assistant
at a chronic pain-management medical practice in San
Leandro, California. He was licensed to prescribe controlled
substances including opioids.
In 2016, after Lague’s patient SL 2 was arrested for
possession with the intent to distribute opioids that Lague
had prescribed to him, SL agreed to cooperate with the Drug
Enforcement Administration’s (DEA) investigation into the
clinic.
At the direction of the DEA, SL recorded his future visits
to the clinic. During one visit in 2016, SL offered cash to
Lague in exchange for doubling his prescription for
oxycodone. Lague wrote the double prescription, falsely
recording in his patient notes that SL had asked for it simply
to save money on his copay for the following month. Lague
and SL discussed how Lague would write the prescription to
avoid scrutiny from the pharmacy. SL would fill the
prescription at one pharmacy but would refill his
prescription the next month at a different pharmacy.
In his patient notes, Lague claimed to monitor SL’s
compliance through urine testing. But the urine tests
revealed that SL had not been taking any of his prescriptions.
Lague never confronted SL about the negative urine test
results, and falsely wrote in his notes that SL was following
his opioid agreement.
2
As was done at trial, we refer to Lague’s former patients using their
initials to preserve their anonymity.
UNITED STATES V. LAGUE 5
In March 2017, the DEA executed a search warrant at the
clinic, seizing over one hundred patient files. Based on those
patient files and on SL’s recordings, the government charged
Lague with thirty-nine counts of unlawfully distributing
Schedule II and Schedule IV controlled substances to five
former patients: SL, DL, KO, JF, and MCM. The
government also charged Lague with seven counts of
healthcare fraud and conspiracy to commit healthcare fraud
for unlawfully prescribing fentanyl to MCM.
At trial, both parties presented a medical expert. The
government called Dr. Charles Szabo. Lague called
Dr. Gary Martinovsky. The experts opined on whether the
charged prescriptions were within the usual course of
professional practice.
The experts focused on Lague’s charged prescriptions,
testifying about various pain-management standards from
the California Medical Board Guidelines, the American Pain
Society Guidelines, and the Center for Disease Control and
Prevention Guidelines. 3 These guidelines provide
recommended prescribing amounts based on generally
accepted medical standards.
Medical standards also warn of the risks of consuming
controlled substances in certain combinations. For example,
drug addicts combine opioids like oxycodone and
hydrocodone with a benzodiazepine for an enhanced but
dangerous “high.” Drug addicts may take this combination
with a muscle relaxant, forming the “holy trinity,” for an
3
The medical community refers to “milligrams of morphine
equivalent,” or “MME,” to measure and compare the prescriptions of
different opioids. Each opioid is assigned a conversion factor based on
its potency relative to morphine.
6 UNITED STATES V. LAGUE
even more dangerous “high.” The “holy trinity” of drugs
rarely serves a legitimate medical purpose.
To monitor patients’ pill-seeking behaviors, medical
professionals perform urinalysis testing. The testing is
designed to detect the consumption of unprescribed
substances (a sign of drug addiction), and the
nonconsumption of prescribed medications (a sign of illegal
sales). Professionals also rely on other warning signs such
as a patient seeking an early prescription refill.
At trial, the government presented evidence that Lague
had prescribed enormous quantities of controlled substances
in dangerous combinations to the five patients covered by
the Second Superseding Indictment. The government
presented the recordings of SL’s visits. The government also
presented the patient files of Lague’s five patients. Two of
Lague’s former patients testified at trial, corroborating SL’s
testimony that Lague had falsified patient files and had not
examined patients before prescribing controlled substances.
The government also introduced Lague’s statements in
his interview with the DEA and his testimony before the
grand jury. In his interview with the DEA, Lague said that
he did not want to be a “policeman” with his patients. He
also said that it was “possible” that he had falsified his
patients’ files. Before the grand jury, Lague acknowledged
that the level of opiates prescribed at the clinic, especially
starting in 2015, was higher than appropriate.
In addition to this patient-specific evidence, the
government introduced Lague’s practice-wide prescription
data from 2015 and 2016 to show how Lague’s prescription
levels compared to that of other opioid prescribers, including
UNITED STATES V. LAGUE 7
Dr. Martinovsky. 4 The data concerned Lague’s
prescriptions for 458 patients unrelated to the Second
Superseding Indictment. The prescription data showed that
Lague had prescribed opioids at among the highest rates
compared to other pain management prescribers in
California.
Robert Gibbons testified about the prescription data. For
his testimony, Gibbons, a statistician at the U.S. Department
of Health and Human Services, relied on Medicare’s
Integrated Data Repository. Gibbons presented a series of
charts comparing Lague’s practices to three groups of
practitioners: providers who prescribe opioids to over
50 Medicare patients, providers specializing in pain
management and anesthesiology, and providers specializing
in cancer treatment. The data showed that in 2016, Lague
issued more opioids than any other Medicare prescriber in
California. Gibbons testified that Lague’s prescription data
“made him an outlier” and that Lague’s prescribed opioids
were “quite a bit higher” than 99 percent of prescribers
Gibbons compared.
Paul Short also testified about Lague’s practice-wide
prescription data. Short relied on California’s Controlled
Substances Utilization Review and Evaluation System
(CURES), an aggregator of controlled substances filled by
California pharmacies. Short presented charts that showed
that Lague had prescribed 1.4 million Schedule II pills in
2016, that Lague’s methadone and oxycodone prescriptions
4
Before trial, the government moved in limine seeking the
admission of Lague’s practice-wide prescription data during trial. The
district court granted the motion, holding that the practice-wide evidence
was probative of Lague’s intent and knowledge to write the charged
prescriptions without a legitimate medical purpose.
8 UNITED STATES V. LAGUE
exceeded the maximum recommended dosages, that Lague
often prescribed a combination of opioids and
benzodiazepines, and that Lague prescribed the “holy
trinity” to some of his patients.
The government recalled Short as a rebuttal witness to
compare Lague’s prescription practices with those of
Lague’s expert, Dr. Martinovsky using the CURES data.
The rebuttal testimony showed that Lague’s prescription
amounts dwarfed Dr. Martinovsky’s.
After the conclusion of the trial in July 2018, the jury
found Lague guilty of the unlawful distribution charges.
Lague was convicted for doubling SL’s opioid prescriptions
so that he could sell the excess, and for prescribing
controlled substances in enormous quantities and dangerous
combinations to DL, KO, MCM, and JF. Lague was
acquitted of the healthcare fraud charges. The district court
sentenced Lague to 120 months imprisonment for his
unlawful Schedule II prescriptions and to 60 months
imprisonment for his unlawful Schedule IV prescriptions, to
be served concurrently. This appeal followed.
II.
We review the question whether specific evidence falls
within the scope of Federal Rule of Evidence 404(b) de
novo. See United States v. Carpenter, 923 F.3d 1172, 1180–
81 (9th Cir. 2019) (citation omitted). We review the district
court’s admission of “other act” evidence for an abuse of
discretion. Id. If the district court abuses its discretion under
Rule 403, we ask “whether the government successfully bore
its burden of proof that the error in admitting the evidence
was harmless.” United States v. McElmurry, 776 F.3d 1061,
1070 (9th Cir. 2015).
UNITED STATES V. LAGUE 9
III.
A.
It is generally “unlawful for any person knowingly or
intentionally . . . to manufacture, distribute, or dispense, or
possess with intent to manufacture, distribute, or dispense, a
controlled substance.” 21 U.S.C. § 841(a)(1). A medical
professional’s prescription of a controlled substance is
lawful only if “issued for a legitimate medical purpose by an
individual practitioner acting in the usual course of his
professional practice.” 21 C.F.R. § 1306.04; see also United
States v. Moore, 423 U.S. 122, 124 (1975).
Lague argues that the district court erred, under Federal
Rule of Evidence 404(b), by granting the government’s
motion in limine to present data of his practice-wide
prescriptions. He contends that these uncharged
prescriptions do not support an inference that he intended to
write the charged prescriptions outside the usual course of
professional practice and without a legitimate medical
purpose. 5
5
The government also argues that the prescription data was
admissible because it was intrinsic to the charged conduct. Evidence of
“other acts” is admissible irrespective of Rule 404(b) if the evidence is
inextricably intertwined with the charged conduct. United States v.
Beckman, 298 F.3d 788, 793 (9th Cir. 2002). This exception applies
when (1) particular acts of the defendant are part of a single criminal
transaction, or when (2) the “other act” evidence is necessary for the
government to offer a coherent story of the crime. Id. at 794 (citation
omitted).
The intrinsic evidence exception to Rule 404(b) does not apply here.
The uncharged prescriptions are not part of the section 841 charges, nor
10 UNITED STATES V. LAGUE
We begin with the text of Federal Rule 404(b). See
United States v. Boulware, 384 F.3d 794, 807 (9th Cir.
2004). Under Federal Rule 404(b), “[e]vidence 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.” Fed. R.
Evid. 404(b)(1). But other act evidence may be admissible
to prove “motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of
accident.” Fed. R. Evid. 404(b)(2).
We apply a four-part test to determine whether “other
act” evidence is admissible. A district court may admit other
act evidence if: (1) the evidence tends to prove a material
point; (2) the other act is not too remote in time; (3) the
evidence is sufficient to support a finding that defendant
committed the other act; and (4) (in certain cases) the act is
similar to the offense charged. See United States v. Bailey,
696 F.3d 794, 799 (9th Cir. 2012) (citation omitted). The
government “has the burden of proving that the evidence
meets all of the above requirements.” United States v.
Arambula-Ruiz, 987 F.2d 599, 602 (9th Cir. 1993) (citation
omitted).
Lague argues that the government failed to meet its
burden under the first part of our Rule 404(b) analysis, i.e.,
that his practice-wide evidence did not tend to prove a point
material to the unlawful distribution charges because there
was no evidence that those underlying prescriptions were
issued unlawfully. We agree with Lague that, under Rule
404(b), “the government . . . bears the burden of proving a
logical connection between appellant’s purported
are they necessary for the government to offer a coherent narrative of
Lague’s crimes.
UNITED STATES V. LAGUE 11
involvement in the previous [act] and a material fact at issue
in the crime with which he was charged.” United States v.
Mayans, 17 F.3d 1174, 1183 (9th Cir. 1994).
As is relevant here, the “material fact at issue” is whether
Lague intended to prescribe controlled substances to the five
patients covered by the Second Superseding Indictment
without a legitimate medical purpose. United States v.
Rendon-Duarte, 490 F.3d 1142, 1144–45 (9th Cir. 2007). If
Lague’s aberrational prescription data is probative of his
intent to prescribe the underlying, uncharged prescriptions
without a legitimate medical purpose, there is a logical
connection between the “other” prescriptions and the
charged prescriptions.
But we have not yet decided whether a medical
professional’s practice-wide prescription data is probative of
unlawful intent in a section 841 charge. We therefore now
turn to our sister circuits for guidance.
The government relies on the Eleventh Circuit’s
decision, United States v. Merrill, 513 F.3d 1293 (11th Cir.
2008). The defendant in Merrill was a physician charged
with distributing controlled substances in violation of
section 841(a). Id. at 1297. At trial, the physician insisted
that his charged prescriptions were issued for a legitimate
medical purpose. Id. at 1299. The district court allowed the
government to introduce evidence of more than 33,000
prescriptions the physician had written during the relevant
three-year period. Id. After his conviction, the defendant
argued on appeal that the district court had abused its
discretion by admitting the uncharged prescriptions under
Rule 404(b). Id.But the Eleventh Circuit upheld the physician’s
conviction and concluded that the district court “did not
12 UNITED STATES V. LAGUE
abuse its discretion in admitting either the summary or the
individual prescriptions underlying” the practice-wide data.
Id. at 1303. The Eleventh Circuit explained that the
“evidence of the quantity and combination of prescriptions”
the physician had written was “directly related to” whether
he was “relieved of liability under the Controlled Substances
Act because he acted in the ‘usual course of a professional
practice.’” Id. This was because a “jury may consider
prescription data sets outside those specifically charged in
the indictment to determine whether a physician has
exceeded the legitimate bounds of medical practice.’” Id.,citing United States v. Harrison, 651 F.2d 353, 355 (5th Cr.
1981).
Lague, for his part, relies on the Eighth Circuit’s
decision, United States v. Jones, 570 F.2d 765 (8th Cir.
1978). The physician in that case was also charged with
intentionally distributing a Schedule II controlled substance
under section 841. Id. at 766. At trial, the district court
allowed the government to introduce evidence of 478 other
prescriptions for Schedule II drugs the physician had written
for his former patients as evidence of his unlawful intent to
write the charged prescriptions. Id. Upon being convicted,
the physician argued on appeal that the district court had
erred in admitting the evidence of the uncharged
prescriptions. Id.The Eighth Circuit agreed with the physician and
reversed the section 841 conviction. Id. The Eighth Circuit
observed that the “other” prescriptions could be logically
connected to the crime charged only if the physician wrote
those “other” prescriptions “outside the bounds of
professional medical practice.” Id. But unlike the Eleventh
Circuit in Merrill, the Eighth Circuit held that, without
specific evidence of the treatment of the patients underlying
UNITED STATES V. LAGUE 13
those “other” prescriptions, the quantity of the prescriptions
was not probative of whether the physician had “acted
unprofessionally.” Id.Lague and the government ask us to distinguish the case
before us from Merrill and Jones respectively. We now turn
to that issue.
We disagree with Lague that Merrill is different from
this case. Lague contends that Merrill is inapposite because
the government there had to prove a scheme to defraud
involving excessive quantities of drugs. We acknowledge
that the Eleventh Circuit’s opinion in Merrill had referenced
its earlier discussion that “evidence of the quantity and
combination of prescriptions . . . during the relevant period
is directly related to the issue of whether [the physician]
committed health care fraud.” Merrill, 513 F.3d at 1303.
But in Merrill, the Eleventh Circuit independently
concluded that the physician’s practice-wide prescription
data was admissible under Rule 404(b) because it tended to
prove the intent element of the section 841(a) charges, i.e.,
whether the physician intended to act “in the usual course of
professional practice.” Id. We read Merrill to affirm the
admission of practice-wide uncharged prescriptions under
Rule 404(b) irrespective of any nexus to a healthcare fraud
charge. 6
We also disagree with the government that this case is
different from Jones. The government asserts that Jones was
decided against the backdrop of the clear-and-convincing
standard the government was required to overcome when
6
We are similarly unpersuaded by the Tenth Circuit’s suggestion
that the holding in Merrill was limited to the fraud charges. See United
States v. MacKay, 715 F.3d 807, 841 (10th Cir. 2013).
14 UNITED STATES V. LAGUE
seeking to admit “other act” evidence before the Federal
Rules of Evidence was codified. We disagree. In Jones, the
Eighth Circuit acknowledged that the government’s burden
of proof to have “other acts” admitted into evidence had been
relaxed by the Federal Rules of Evidence. Jones, 570 F.2d
at 768 (explaining the evolution of a proponent’s burden of
proof under Rule 404(b)).
Simply put, Merrill and Jones are irreconcilable. Faced
with this split of authority, and after carefully examining the
law of our circuit, we hold that the Eleventh Circuit’s
opinion in Merrill better comports with the text and purpose
of Rule 404(b).
“Rule 404(b) is a rule of inclusion—not exclusion—
which references at least three categories of other ‘acts’
encompassing the inner workings of the mind: motive,
intent, and knowledge.” United States v. Curtin, 489 F.3d
935, 944 (9th Cir. 2007) (en banc). Under our “low
threshold test of sufficien[cy],” United States v. Dhingra,
371 F.3d 557, 566 (9th Cir. 2004), the government “need not
prove Rule 404(b) evidence by a preponderance of the
evidence,” Bailey, 696 F.3d at 799. Instead, the government
need only lay a factual foundation from which a “jury could
reasonably conclude that [the defendant] committed the
allegedly-similar bad acts,” and that he possessed the
requisite intent in committing those bad acts. Id., citing
Huddleston v. United States, 485 U.S. 681, 685 (1988); see
also Fed. R. Evid. 104(b). In deciding where “other act”
evidence is relevant to prove intent, we defer to the “district
judge’s own experience, general knowledge, and
understanding of human conduct and motivation.” Curtin,
489 F.3d at 948, quoting McCormick on Evidence § 185 (6th
ed. 2006) (emphasis and alteration omitted).
UNITED STATES V. LAGUE 15
Applying this relaxed standard, we hold that uncharged
prescriptions of controlled substances in enormous
quantities, and in dangerous combinations, support a
reasonable inference that the underlying prescriptions were
issued outside the usual course of professional practice and
without a legitimate medical purpose. Lague’s practice-
wide evidence was therefore probative of his unlawful
intent, undermining his defense at trial that the charged
prescriptions amounted to “a few bad judgments.” 7 Because
the prescription data made the intent element of the section
841 charges more probable, the district court properly
admitted Lague’s uncharged prescriptions under Rule
404(b).
B.
Next, Lague contends that the district court abused its
discretion, under Federal Rule of Evidence 403, by failing to
preview the underlying prescription data before admitting it
into evidence. See Curtin, 489 F.3d at 958 (holding that a
district court “does not properly exercise its balancing
discretion under Rule 403 when it fails to place on the scales
and personally examine and evaluate all that it must weigh”).
We assume, without deciding, that the district court abused
its discretion by failing to preview all of the prescription data
7
We have held that “other act” evidence is probative of intent in
similar circumstances. See United States v. Garrison, 888 F.3d 1057,
1060, 1064 (9th Cir. 2018).
16 UNITED STATES V. LAGUE
before granting the government’s motion in limine. 8, 9 We
hold that any error was harmless based on the overwhelming
evidence of guilt against Lague.
The burden to show that the evidentiary trial error was
harmless falls on the government, and our review begins
with a “presumption of prejudice.” Bailey, 696 F.3d at 803.
Reversal is not required if “there is a ‘fair assurance’ of
harmlessness or, stated otherwise, unless it is more probable
than not that the error did not materially affect the verdict.”
Id., quoting United States v. Morales, 108 F.3d 1031, 1040
(9th Cir. 1997) (en banc); see also United States v. Rendon-
Duarte, 490 F.3d 1142, 1144–45 (9th Cir. 2007). We have
“found harmless error despite the erroneous admission of
evidence” where “the properly admitted evidence was highly
persuasive and overwhelmingly pointed to guilt.” Bailey,
696 F.3d at 804 (citations omitted).
Although Lague’s prescription data was presented
through two witnesses and highlighted in the government’s
opening statement and closing argument, the focus of the
nearly two-week trial was on the charged prescriptions. The
government admitted the patient files, presented the
testimony of one patient’s father, a patient’s former surgeon,
and investigators. Thus, even without the uncharged
8
In the government’s motion in limine, the 2015 data was not
presented to the district court; the government simply represented that
the 2015 data was “similar” to the 2016 data.
9
We also assume, without deciding, that the district court’s
admission of Lague’s practice-wide evidence under Rule 403 is reviewed
for an abuse of discretion.
UNITED STATES V. LAGUE 17
prescription data, 10 the case was not as close as Lague
suggests.
The jury also had access to the patients’ medical charts
underlying the unlawful distribution charges, showing
continued “red flags” such as use of illegal drugs and, most
importantly, the prescriptions for the charged patients that
showed copious prescribed controlled substances. For
example, the evidence revealed that Lague doubled SL’s
opioid prescriptions without asking SL about his pain, and
that he covered it up by falsely telling the pharmacy that it
was for a two-month prescription. The evidence also
showed that Lague had prescribed opioids to DL, a drug
addict, multiple times the CDC’s limit for exercise-induced
shoulder pain, despite his urine test showing that he was
using cocaine and unprescribed morphine and Xanax. Lague
also prescribed DL a benzodiazepine and an amphetamine
on top of the opioids. Based on the patient-specific
evidence, the government certainly cleared the “benchmark
for criminal liability” by proving that Lague “intentionally
. . . distributed controlled substances for no legitimate
medical purpose and outside the usual course of professional
practice.” United States v. Feingold, 454 F.3d 1001, 1010
(9th Cir. 2006). 11
10
Dr. Martinovsky’s prescription data played an even more minor
role in the trial and did not meaningfully impact the jury’s verdict in light
of the overwhelming evidence of Lague’s guilt.
11
Evidence of Lague’s unlawful intent to distribute controlled
substances without a legitimate medical purpose to JF, KO, and MCM
was similarly compelling. Lague prescribed JF, a self-described drug
addict, 50 times the CDC ceiling for oxycodone for a weight-lifting
18 UNITED STATES V. LAGUE
We disagree with Lague that the prescription data “was
impossible to defend against.” Lague’s trial counsel
successfully cabined the weight of the prescription data,
inducing the government’s witnesses to concede that the
prescription data was not highly probative of Lague’s guilt.
If Lague had rebuttal evidence that the uncharged
prescriptions were legitimate, he could have presented it.
We also disagree with Lague that the district court was
required to give a specific limiting instruction after the
government introduced the prescription data. The district
court read a general limiting instruction to the jury before
their deliberations. Lague did not request a more specific
instruction during trial. This general instruction mitigated
the prejudice of admitting the “other act” evidence. See
United States v. Hardrick, 766 F.3d 1051, 1056 (9th Cir.
2014). That the jury acquitted Lague of healthcare fraud and
was able to compartmentalize the evidence on the various
charges also militates against Lague’s claim of prejudice.
See Park v. California, 202 F.3d 1146, 1150 (9th Cir. 2000).
Thus, the admissible evidence at trial shows that Lague
“gave inadequate physical examinations or none at all,” that
injury despite red flags such as refilling prescriptions too soon and in
increasing quantities and asking for more easily abused drugs.
Lague prescribed KO seven-times the CDC limit for opioids for
back pain. After she began treatment at the clinic, she tested positive for
cocaine three times in a year, but negative for the hydrocodone she was
prescribed. Lague later prescribed KO the “holy trinity” of drugs.
Lague prescribed enormous quantities of fentanyl (50 times the
CDC daily ceiling) to MCM, despite knowing she was a heroin user.
Lague later increased the fentanyl dosage and justified the increase
because of MCM’s need to manage stress related to her divorce, sister’s
wedding, and trip to Disneyland.
UNITED STATES V. LAGUE 19
he “ignored the results of the tests he did make,” that he took
minimal “precautions against [the] misuse and diversion” of
controlled substances, and that he prescribed “as much and
as frequently as the patient demanded.” Moore, 423 U.S. at142–43. We reject Lague’s characterization of the trial as
one based on the credibility of two competing expert
witnesses. We therefore hold that it was more probable than
not that any Rule 403 error in admitting the prescription data
did not materially affect the jury’s verdict.
IV.
Lague’s practice-wide prescription data was admissible
under Rule 404(b)(2) to prove his unlawful intent to
distribute controlled substances outside the usual course of
professional practice. Even if we assume that the district
court abused its discretion, under Rule 403, by failing to
preview all of the underlying prescription data admitted at
trial, the result would be the same. The patient-specific
evidence overwhelmingly pointed to Lague’s guilt, and thus,
any Rule 403 error would be harmless.
AFFIRMED.