United States v. Julio Diaz
15-50538
| 9th Cir. | Dec 6, 2017Background
- Julio Gabriel Diaz, a former physician, was convicted of 79 counts of distributing controlled prescription drugs in violation of 21 U.S.C. § 841(a)(1) and sentenced to 327 months' imprisonment; he appealed.
- Prosecution evidence included voluminous prescription records (allegedly >5 million opiate pills prescribed 2008–2011), testimony from former patients and employees, hospital doctors, and expert witnesses who testified Diaz’s prescribing practices fell well outside medical standards.
- The government introduced evidence of uncharged patient deaths, complaints to the DEA and California Medical Board (CMB), a summary exhibit (Gx 1) based on hospital records (Gx 2), and testimony that Diaz’s license was later revoked.
- Diaz raised multiple evidentiary and instructional challenges on appeal (many for the first time), argued cumulative error, and contested the PSR’s drug-quantity calculation and sentencing beyond statutory maximums. He also argued constitutional error under Apprendi/Blakely (raised but foreclosed by precedent).
- The Ninth Circuit affirmed the conviction but found sentencing errors: (1) the district court plainly erred by sentencing beyond the statutory maximum on two counts, and (2) the record did not permit review of the PSR drug-quantity Guideline calculation; the sentence was vacated and remanded for resentencing.
Issues
| Issue | Diaz's Argument | Government's Argument | Held |
|---|---|---|---|
| Admission of evidence about uncharged patient deaths | Evidence was prejudicial and inadmissible under Rule 404(b) | Some deaths were relevant to intent/knowledge; overall probative value | Any error was harmless given overwhelming evidence against Diaz |
| Hospital doctors’ testimony (expert vs lay/hearsay) | Out-of-court communications and expert opinions were improper hearsay/lay testimony | Testimony explained doctors’ reasons for contacting Diaz and showed prescriptions were excessive | Some testimony was improper, but error did not affect substantial rights |
| Admission of summary exhibit Gx 1 and underlying records Gx 2 | Gx 1 was a misleading, improper summary; foundation for Gx 2 inadequate | Dr. Lambert laid sufficient foundation for Gx 2; Gx 1 admissible | Gx 2 admissible; Gx 1 possibly erroneous but harmless given other evidence |
| Admission of DEA/CMB complaints (Confrontation Clause) | Complaints were testimonial hearsay because jointly filed by non-testifying physicians | Complaints were non-testimonial, motivated by patient protection | No plain Confrontation Clause error; admission permissible |
| Expert testimony stating Diaz was like a "drug dealer" (Rule 704(b)) | Testimony impermissibly opined on defendant’s mental state/element of crime | Testimony was ambiguous and not plain error to admit | No plain error; answer permissible as ambiguous opinion |
| Testimony about CMB revocation of license | Testimony was hearsay and should have been excluded | Admitted to show abnormality of practices; limited emphasis | Hearsay error existed but was not prejudicial to substantial rights |
| Jury instructions and refusal of Diaz’s good-faith instruction | Requested instruction reflected Diaz’s subjective good-faith defense | Given instructions adequately covered good-faith under objective standard | Court’s instructions proper; refusal of proposed instruction was correct |
| Cumulative error | Combined errors deprived Diaz of a fair trial | Government emphasized overwhelming evidence and quantity of drugs | No cumulative-error reversal; errors harmless in aggregate |
| Sentencing calculations and statutory maximums | PSR drug-quantity calculation unsupported; sentences exceeded statutory max on two counts | Government conceded statutory-max error; disputed PSR computation | Sentence vacated and remanded for resentencing due to inadequate record on Guidelines calculation and sentencing error |
| Apprendi/Blakely challenge to judge-found facts increasing sentence | Judicial factfinding violated Fifth and Sixth Amendments | Circuit precedent forecloses the claim | Claim foreclosed by circuit precedent (denied) |
Key Cases Cited
- United States v. Brooke, 4 F.3d 1480 (9th Cir.) (probative value and prejudice analysis for evidence of other acts)
- United States v. Waters, 627 F.3d 345 (9th Cir. 2010) (harmless-error standard)
- United States v. McElmurry, 776 F.3d 1061 (9th Cir. 2015) (evaluating prejudice from inflammatory evidence)
- United States v. Childs, 5 F.3d 1328 (9th Cir. 1993) (foundation for business/hospital records)
- Williams v. Illinois, 567 U.S. 50 (2012) (testimonial vs non-testimonial statements under Confrontation Clause)
- United States v. Feingold, 454 F.3d 1001 (9th Cir. 2006) (elements/instructions for unlawful distribution by physician)
- United States v. Hayes, 794 F.2d 1348 (9th Cir. 1986) (good-faith instruction standard for physicians)
- United States v. Boettjer, 569 F.2d 1078 (9th Cir. 1978) (objective standard for physician good faith)
- United States v. Lloyd, 807 F.3d 1128 (9th Cir. 2015) (cumulative-error doctrine)
- United States v. Morales, 108 F.3d 1031 (9th Cir. en banc) (harmless-error review)
- United States v. Emmett, 749 F.3d 817 (9th Cir. 2014) (remand where Guidelines calculation record insufficient)
- United States v. Fitch, 659 F.3d 788 (9th Cir. 2011) (Apprendi/Blakely precedent application)
- United States v. Stinson, 647 F.3d 1196 (9th Cir. 2011) (limits on admitting disciplinary findings as hearsay)
Conviction affirmed; sentence vacated and remanded for resentencing.