By Jeffrey H. Brochin, J.D.
The district court abused its discretion in admitting challenged testimony under United States v. Kennedy, 32 F.3d 876 (4th Cir. 1994), and Federal Rule of Evidence 404(b), which only allow evidence of uncharged acts or crimes if it is ‘necessary to complete the story’ of the crime on trial.
A federal appeals court in Virginia has reversed and remanded the decision of the district court that convicted a physician of violating the Controlled Substances Act (CSA) when he wrote prescriptions for opioid drugs in violation of the mandated medical standards. The trial court erred when it allowed the government to call four witnesses who--although they were former patients of the doctor--were not the subject patients of the indictment against him, and their testimony was not ‘necessary to complete the story’ of the crime under the Kennedy Doctrine (United States of America v. Brizuela, June 19, 2020, Quatllebaum, CJ).
Unlawful distribution conviction. Following complaints about the opioid prescription-writing practices of a West Virginia physician, he was investigated by the United States Drug Enforcement Administration (DEA) and ultimately convicted of 15 counts of unlawfully distributing controlled substances in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C). He took the instant appeal and raised several arguments, among them that the district court improperly admitted the testimony of patients whose treatment by him was not the basis for any of the charges in the indictment, and that he had challenged the admitted testimony under United States v. Kennedy, 32 F.3d 876 (4th Cir. 1994) (Kennedy) and Federal Rule of Evidence 404(b).
Evidence of another crime. 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 such character. Such ‘propensity evidence’ is excluded because it might over-persuade a jury and cause them to prejudge one with a bad general record. However, the rule does allow the admission of evidence of other acts or crimes if such evidence is used to prove motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. Not all prior ‘bad act’ evidence is encompassed by rule, rather, it is only applicable when the challenged evidence is extrinsic, that is, separate from or unrelated to the charged offense.
The Kennedy Doctrine. Under Kennedy, courts are allowed to admit evidence of uncharged acts or crimes if they are ‘necessary to complete the story of the crime on trial.’ The doctor argued that the admission of the evidence from the four patients constituted an unduly expansive interpretation of Kennedy that basically eviscerated the protections intended to be conferred through Rule 404(b)’s general prohibition on the introduction of other crimes, wrongs, or acts, and that the government introduced the testimony as propensity evidence because it did not relate in any way to his treatment of the patients charged in the indictment.
Misuse of ‘complete the story’. After considering the doctor’s arguments and the government’s responses, the appeals court agreed that the district court abused its discretion in admitting the challenged testimony under Kennedy’s "complete the story" doctrine. The appeals court also rejected the government’s alternative argument that the evidence was properly admitted under Fed. R. Evid. 404(b)(2) to show that the violations were not the result of accident or mistake. In determining whether uncharged conduct is intrinsic to the charged offenses, the appeals court 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.’ However, the challenged testimony of the four other patients did not reference or encompass any of the 21 prescriptions listed in the indictment, and therefore, none of the acts they described arose from the same transaction, series of transactions or single criminal episode as the charged offenses.
Furthermore, the appeals court found that the district court’s error was not harmless, but rather served to prejudice the jury against the doctor.
For the foregoing reasons, the appeals court reversed and remanded the case to the district court.
The case is No. 19-4656.
Attorneys: Robert Hugh McWilliams, Jr., Office of the U.S. Attorney, for the United States. Sahand Farahati (Shearman & Sterling LLP) for Felix A. Brizuela, Jr.
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