United States v. MacKay
2013 U.S. App. LEXIS 8819
| 10th Cir. | 2013Background
- MacKay (Utah) practiced pain management, performing numerous short patient visits and prescribing opioids.
- Indictment spanned 129 counts; 45 counts dismissed; five-week trial on remaining 84 counts.
- Jury convicted on 40 counts, including counts involving patients who died (counts 1–2) and non-death counts.
- Non-death counts required showing prescribing outside the usual course of medical practice or without legitimate medical purpose.
- Appeal challenged sufficiency of evidence, jury instructions, admission of an autopsy exhibit and expert testimony, and sentencing legality; district court remanded for resentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for non-death counts | Government argues ample chart-based and testimonial proof of outside practice. | MacKay asserts insufficient evidence of unlawful prescribing; charts show legitimate care. | Evidence sufficient to convict on non-death counts. |
| Denial of judgment of acquittal on counts 1–2 | Death resulted from prescribed oxycodone/hydrocodone; foreseeability supported. | Insufficient causation/foreseeability; disputes over autopsy evidence. | Evidence sufficient; foreseeability not required to decide; no plain error. |
| Admission of Dr. Hail's expert testimony | Hail properly qualified; her toxicology opinion reliable. | Hail lacked pathologist credentials; methodology and ultimate-issue testimony improper. | No error in admitting Hail; proper gatekeeping and qualifications found. |
| Admission of Government Exhibit 133 | Exhibit contextualizes defendant’s practice; probative despite potential prejudice. | Exhibit overly prejudicial and not sufficiently probative; risk of mislead the jury. | District court did not abuse Rule 403 balancing; exhibit admissible. |
| Sentencing challenges under Eighth/Fifth Amendment | Disparate penalties for different drug schedules justified by statute. | Unconstitutional as applied due to sentencing disparity; due process concerns. | Eighth Amendment not violated; Fifth Amendment challenges waived/insufficient; remand for sentencing clarification on counts with statutory max issues. |
Key Cases Cited
- Moore v. United States, 423 U.S. 122 (U.S. 1975) (physician large-scale operation; inadequate examinations supports unlawful prescribing)
- Feingold v. United States, 454 F.3d 1001 (9th Cir. 2006) (prescribing without examination; excessive dosages supports unlawful prescribing)
- Jamieson v. United States, 806 F.2d 949 (10th Cir. 1986) (prescribing when patient in pain; short/incomplete examinations examined)
- Varma v. United States, 691 F.2d 460 (10th Cir. 1982) (inadequate medical histories and brief examinations as improper practice)
- Tran Trong Cuong v. United States, 18 F.3d 1132 (4th Cir. 1994) (superficial examinations; evidence of improper prescribing)