United States v. Lisa Davis, 2017 U.S. App. LEXIS 10532

Background

Lisa Ann Davis was charged in a three-count superseding indictment for conspiracy to manufacture methamphetamine, attempted manufacture and aiding and abetting, and possession of pseudoephedrine with intent to manufacture. Her husband pled guilty; she went to trial and was convicted on all counts.
The government introduced NPLEx records and surveillance showing Davis (and others buying for her) purchased large, repeated amounts of pseudoephedrine and other methamphetamine precursors; a search of her home found an active meth lab and residue, and she was found near precursors at the sink.
Shortly before trial (after indictment), Davis obtained a pseudoephedrine prescription from her pulmonologist, Dr. Paynter, and sought to call him to corroborate that she used pseudoephedrine to treat COPD.
The district court precluded testimony by Dr. Paynter about the post-indictment prescription and barred him from giving expert testimony (no expert disclosure). At trial, defense did not elicit testimony about the October 28, 2015 prescription; government rebuttal witnesses said pseudoephedrine is not recommended for COPD.
After rebuttal, Davis sought to recall Dr. Paynter and to introduce the prescription; the district court denied as untimely and excluded the prescription (but allowed it into the record for appeal). The jury convicted; Davis appealed asserting denial of her right to present a defense.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether exclusion of post-indictment prescription evidence violated Davis’s right to present a defense	Excluding the October 28, 2015 prescription prevented Davis from corroborating her claim she bought pseudoephedrine legitimately for COPD and denied a fair trial	The prescription was irrelevant to the charged period, possibly feigned to blunt investigation, and Dr. Paynter could not offer undisclosed expert testimony	Exclusion did not violate rights in a reversible way; any error was harmless given overwhelming government evidence and minimal probative value of the prescription
Whether Dr. Paynter could testify as an expert without disclosure under discovery order	The defense wanted Dr. Paynter to explain medical use of pseudoephedrine for COPD	Government argued lack of expert disclosure deprived it of opportunity to rebut; district court barred expert testimony	District court properly barred expert testimony without disclosure; factual treatment/diagnosis testimony limited and acceptable if properly framed
Standard of appellate review for claimed constitutional evidentiary error	Davis argued constitutional claim merits de novo review	Government urged plain-error review because issue not properly preserved	Court assumed constitutional error for argument’s sake but found claim fails under either standard
Whether the exclusion was harmless or affected substantial rights	Davis argued the prescription was critical corroboration and could have offset government’s case	Government showed overwhelming evidence of guilt and weaknesses/taint in the post-indictment prescription	Exclusion was at most harmless; verdict would not have been materially affected

Key Cases Cited

United States v. Bordeaux, 400 F.3d 548 (8th Cir.) (criminal defendant’s right to introduce defense evidence)
Crane v. Kentucky, 476 U.S. 683 (U.S. 1986) (right to present a defense includes meaningful opportunity to present evidence)
United States v. Woosley, 761 F.2d 445 (8th Cir. 1985) (district court discretion on admitting subsequent conduct to show absence of intent)
United States v. West, 829 F.3d 1013 (8th Cir. 2016) (de novo review when constitutional right implicated)
United States v. White, 557 F.3d 855 (8th Cir. 2009) (harmless error standard in criminal cases)
United States v. Peneaux, 432 F.3d 882 (8th Cir. 2005) (defining harmless evidentiary error)
Olano v. United States, 507 U.S. 725 (U.S. 1993) (government bears burden to show forfeited error is harmless)
United States v. Pirani, 406 F.3d 543 (8th Cir. en banc) (plain-error review framework)
Johnson v. United States, 520 U.S. 461 (U.S. 1997) (plain-error standard articulated)
United States v. Dominguez Benitez, 542 U.S. 74 (U.S. 2004) (affecting substantial rights in criminal appeals)
United States v. Giambalvo, 810 F.3d 1086 (8th Cir.) (post-indictment self-serving exculpatory acts have minimal probative value)
United States v. Ellefsen, 655 F.3d 769 (8th Cir.) (similar principle on limited probative value of later exculpatory acts)
Radtke v. ???, 415 F.3d 840 (8th Cir.) (post-indictment conduct may be feigned; cited for risk of artificiality)
Post v. United States, 407 F.2d 319 (D.C. Cir.) (discussing risk that post-indictment conduct is feigned)
United States v. Khehra, 396 F.3d 1027 (8th Cir.) (use of purchasing patterns and records to infer illegal manufacture intent)
United States v. Thetford, 806 F.3d 442 (8th Cir.) (harmlessness where government’s evidence was overwhelming)