UNITED STATES OF AMERICA, Plaintiff – Appellee, v. FELIX BRIZUELA, JR., Defendant – Appellant.
No. 19-4656
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
June 19, 2020
PUBLISHED
Submitted: March 26, 2020 Decided: June 19, 2020
Before MOTZ, HARRIS, and QUATTLEBAUM, Circuit Judges.
Reversed and remanded for a new trial by published opinion. Judge Quattlebaum wrote the opinion in which Judge Motz and Judge Harris joined.
Philip Urofsky, Washington, D.C., Shaina L. Schwartz, Sahand Farahati, SHEARMAN & STERLING LLP, New York, New York, for Appellant. William J. Powell, United States Attorney, Martinsburg, West Virginia, Sarah E. Wagner, OFFICE OF THE UNITED STATES ATTORNEY, Clarksburg, West Virginia, for Appellee.
Dr. Felix Brizuela operated a medical practice in West Virginia. Following complaints about his opioid prescription-writing practices, Brizuela was investigated by the United States Drug Enforcement Administration (“DEA“) and ultimately convicted of 15 counts of unlawfully distributing controlled substances, in violation of
Although Brizuela raises a host of arguments, we focus on his contention that, under United States v. Kennedy, 32 F.3d 876 (4th Cir. 1994) and Federal Rule of Evidence 404(b), the district court improperly admitted the testimony of patients whose treatment by Brizuela was not the basis for any of the charges in the indictment.1 For the reasons set forth below, we agree with Brizuela that the testimony of the patients whose treatment was not included in the indictment was not necessary to “complete the story” of the charged offenses under Kennedy, and was not otherwise admissible under Rule 404(b). And
We do not lightly overturn the verdict of a federal jury whose members gave substantial time and effort performing their civic duty during Brizuela‘s trial. But compliance with the Federal Rules of Evidence is important to ensure that trials are conducted fairly. When, as here, evidence introduced in a trial deviates from those Rules and causes prejudice, we are compelled to order a new trial.
I.
Brizuela is a Doctor of Osteopathic Medicine2 and a board-certified neurologist who operated a medical practice in Morgantown, West Virginia. He offered pain management services, including prescribing patients opioid pain killers such as oxycodone and oxymorphone. These drugs are Schedule II controlled substances under the Controlled Substances Act (“CSA“),
Under federal law, every doctor who wishes to dispense controlled substances must apply for and obtain a unique registration number (“DEA number“). See
The DEA began investigating Brizuela after it received complaints from a pharmacist, the West Virginia Board of Pharmacy and the mother of one of Brizuela‘s patients about Brizuela‘s opioid prescription-writing practices. To corroborate these claims, the DEA used the West Virginia Controlled Substances Monitoring Program, a
As a result, federal and state investigators executed a search warrant to obtain patient files, medical charts, insurance documents and other materials from Brizuela‘s Morgantown practice. Among the items seized were pre-signed, blank prescriptions from Brizuela‘s prescription pad as well as sheets from his prescription pad that had been dated and filled out with the type of controlled substance to be prescribed, but not signed. On the day of the raid, Brizuela voluntarily surrendered his authority to prescribe Schedule II controlled substances, including oxycodone. Notably, Brizuela told investigators that he was relieved to give up his Schedule II prescribing authority because the patients receiving Schedule II drugs from him were “pill-seekers and addicts” that he no longer wished to treat. J.A. 223–24.
Federal investigators also reviewed 404 patient files seized from the Morgantown office to evaluate whether Brizuela subjected his opioid-prescribed patients to regular urine drug tests. Such tests help ensure that patients are taking the prescribed opioids, abstaining from illegal drugs or other illicit substances and not diverting opioids to other users. An “inconsistent” urine test—a test showing the presence of street drugs, drugs not prescribed by the doctor or such a low level of the prescribed opioid as to suggest that it is being diverted to another person—alerts a doctor to at least reconsider, or possibly stop, prescribing that patient opioids. When federal investigators reviewed Brizuela‘s patient
A federal grand jury indicted Brizuela on 21 counts of distributing controlled substances outside the bounds of professional medical practice, each related to specific prescriptions written for five of Brizuela‘s patients, in violation of
The case proceeded to trial. The government called two of the five patients whose treatments were the subject of the indictment to testify about the prescriptions they received
The government also called Robin Price and Louis Tennant, two of Brizuela‘s former receptionists, to testify about the operation of the Morgantown office. They testified that, although opioid prescriptions are usually not supposed to be refilled without regular in-person evaluations, Brizuela often went months without seeing patients to whom he was prescribing controlled substances. Tennant also stated that she routinely took Brizuela‘s prescription pad home, filled out patients’ refill prescriptions and brought the prescriptions to the office for Brizuela to sign. According to Tennant, she completed around 500 prescriptions a month under this process, but never observed Brizuela comparing the prescriptions she completed with patients’ medical charts.
Tennant and Price said that Brizuela‘s patients travelled from as far away as Virginia, Maryland and Ohio to receive opioid prescriptions. They described how some patients who came into the office looked “stoned,” “high” or “glassy-eye[d],” and how they could become hostile if they did not quickly receive their refill prescriptions. J.A. 503, 573. Tennant also testified that she overheard patients discuss selling their prescriptions and that Brizuela was aware of such information. And Price noted that urine drug test results would often sit unreviewed on Brizuela‘s desk, while patients continued to receive opioid prescriptions. Price also stated that as far as she knew, those urine tests were the only way that Brizuela monitored whether his patients were using their controlled substances properly.
The government also called Dr. Patrick Marshalek, a specialist in psychiatry and addiction medicine. As the medical director of West Virginia University‘s Chestnut Ridge Center, he treats patients with opioid use disorders and has experience treating patients with chronic pain. Marshalek was admitted as an expert in pain management without objection.
Marshalek described the medical standards for doctors prescribing controlled substances. He stated that doctors must thoroughly assess patients by exploring their history and performing in-person, physical evaluations to identify whether they have legitimate pain or are simply seeking drugs. They must, Marshalek opined, also assess whether the medical benefits of prescribing a patient opioids outweigh the patient‘s unique
Marshalek testified that doctors must closely monitor patients’ use of controlled substances by utilizing options such as urine drug tests and pill counts to ensure patients are using the correct amount of medication. He also told the jury that doctors who become aware that their patients are abusing or misusing opioid prescriptions must intervene and alter the patient‘s treatment. For example, according to Marshalek, a doctor could stop administering the drug and refer the patient to addiction treatment or could continue prescribing the drug with increased monitoring. Marshalek testified that, if patients continue to abuse the drugs, doctors should stop prescribing them because the patient is a danger to themselves and others.
Marshalek reviewed the files of the five patients who received the prescriptions charged in Brizuela‘s 21 unlawful distribution counts. He also reviewed each patient‘s prescription data on the West Virginia Board of Pharmacy‘s Prescription Monitoring Program database and memoranda of interviews with the patients and their families. After discussing Brizuela‘s treatment of each patient, he opined that each of the charged prescriptions were issued outside the bounds of professional medical practice.
In response, Brizuela called Dr. Bruce Nicholson, an anesthesiologist with a specialty in chronic and acute pain management, and the Director of the Division of Pain Medicine for the Lehigh Valley Health Network. Nicholson testified that upon reviewing the files of the five patients who received the prescriptions charged in the indictment, all 21 of the prescriptions listed in the unlawful distribution charges were issued within the
After a seven-day trial, the jury found Brizuela guilty of fifteen counts of distribution of controlled substances outside the bounds of professional medical practice, but acquitted him of six distribution counts and all sixteen counts of illegal remuneration in violation of the federal anti-kickback statute. Later, the district court sentenced Brizuela to 48 months in prison and 3 years of supervised release.
Brizuela timely filed his notice of appeal. This Court has jurisdiction under
II.
Brizuela argues the district court erred by admitting the testimony of patients who Brizuela treated, but whose treatment was not the basis for his criminal charges. Because this is a challenge to an evidentiary ruling, we review for an abuse of discretion. United States v. Faulls, 821 F.3d 502, 508 (4th Cir. 2016). “A court has abused its discretion if its decision is guided by erroneous legal principles or rests upon a clearly erroneous factual finding.” United States v. Johnson, 617 F.3d 286, 292 (4th Cir. 2010) (internal quotation marks omitted).
Before trial, the government filed a notice under
Next, Brennan Haraczy testified about his treatment by Brizuela. Like McCabe, his treatment was not the basis for any of Brizuela‘s charges. Haraczy said Brizuela prescribed him oxycodone, an opioid pain medication, for a pinched nerve in his shoulder. Haraczy testified that Brizuela did not warn him of the addiction risk posed by taking opioids or the dangers of mixing oxycodone with other types of drugs. Within the first month, Haraczy became physically dependent on the medication. He testified that he sometimes took up to
patients and 21 prescriptions cited in the indictment to make their case J.A. 196, 1744. Second, the government argues that their testimony is also admissible under Rule 404(b) to rebut Brizuela‘s good-faith defense. See United States v. Hurwitz, 459 F.3d 463, 476 (4th Cir. 2006) (“[A] doctor‘s good faith generally is relevant to a jury‘s determination of whether the doctor acted outside the bounds of medical practice or with a legitimate medical purpose when prescribing narcotics.“). Because these arguments were not presented to or considered by the district court, we do not consider them now. Hodges v. Thompson, 311 F.3d 316, 320 n. 3 (4th Cir. 2002) (citation omitted); see also Wratchford v. S. J. Groves & Sons Co., 405 F.2d 1061, 1063 (4th Cir. 1969) (“Ordinarily, of course, a party should not be allowed to change the theory of his case after trial . . . .“).
The government also questioned Haraczy about Brizuela‘s treatment of his deceased mother. When Brizuela objected, the government argued that Haraczy‘s testimony about Brizuela‘s treatment of his mother was “part of the picture” of the crimes on trial because his mother was “[a]nother patient dependent.” J.A. 611. The district court allowed this testimony as “background information concerning the course of [Brizuela‘s medical] practice . . . .” J.A. 611. Haraczy then testified that his mother was so physically dependent on the opioids that Brizuela prescribed that “[s]he would be sick” if she did not take them. J.A. 610.
Finally, Jennifer Lively and her wife, Donna Walker, testified about the treatment they received from Brizuela. Like McCabe and Haraczy, their treatment was not the basis for any of the charges in the indictment. Although Brizuela prescribed both Lively and Walker a combination of opioids and Xanax, they each stated that Brizuela did not warn them about the risk of addiction or discuss what drug combinations could be dangerous. Lively testified that she became so physically dependent on her oxycodone that she would get “deathly sick” if she did not take it. J.A. 661. On one occasion, her withdrawal symptoms were so bad that she had to be put on life support. Walker said that when she
Lively and Walker also testified more generally about their interactions with Brizuela. Lively testified that Brizuela told her about internet posts claiming that he was “a bad physician” and that “if anybody wanted pills to go to him.” J.A. 669, 680. Walker also noted that Brizuela once “threw a temper tantrum” and “stomped his feet in the middle of his . . . office” when she asked to change prescriptions because of the way it made her feel. J.A. 678. She also told the jury that she once witnessed him “cuss[] out” a nurse. J.A. 679.
On appeal, Brizuela argues that the district court erred in admitting the testimony of these four patients under the ”Kennedy doctrine,” which allows courts to admit evidence of uncharged acts or crimes if they are “necessary to complete the story of the crime on trial.” Kennedy, 32 F.3d at 885 (internal alteration and citation omitted). He claims that the admission of this evidence constituted an “unduly expansive interpretation of Kennedy” that “eviscerates the protections intended to be conferred through Rule 404(b)‘s general prohibition on the introduction of other crimes, wrongs, or acts.” Appellant‘s Opening Brief at 14. Brizuela argues that the government introduced the testimony as propensity evidence because it “did not relate in any way to his treatment of those patients charged in
After considering these arguments and the government‘s responses, we agree with Brizuela that the district court abused its discretion in admitting the challenged testimony under Kennedy‘s “complete the story” doctrine. We also reject the government‘s alternative argument that the evidence was properly admitted under
A.
Critically, however, “not all prior ‘bad act’ evidence is encompassed by Rule 404(b).” United States v. McBride, 676 F.3d 385, 396 (4th Cir. 2012). Instead, the rule is “only applicable when the challenged evidence is extrinsic, that is, separate from or
When, as here, we are tasked with determining whether uncharged conduct is intrinsic to the charged offenses, we have 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.”7 Kennedy, 32 F.3d at 886 (quoting United States v. Towne, 870 F.2d 880, 886 (2d Cir. 1989) (internal alteration omitted); United States v. Sutherland, 921 F.3d 421, 430 (4th Cir. 2019), cert. denied, 140 S. Ct. 1106 (2020); McBride, 676 F.3d at 396; United States v. Palacios, 677 F.3d 234, 245 (4th Cir. 2012); United States v. Basham, 561 F.3d 302, 326 (4th Cir. 2009); United States v. Siegel, 536 F.3d 306, 316 (4th Cir. 2008); United States v. Stitt, 250 F.3d 878, 887 (4th Cir. 2001); see also United States v. Denton, 944 F.3d 170, 186 (4th Cir. 2019); United States v. Lipford, 203 F.3d 259, 265 (4th Cir. 2000).8 Our “complete the
In Kennedy—this Court‘s seminal case on the “complete the story” doctrine— the defendant was charged with conspiracy to distribute, and possession with the intent to distribute, cocaine. Kennedy, 32 F.3d at 881. At trial, the district court admitted testimony describing Kennedy‘s drug distribution activities with suppliers not named in his federal indictment. Id. at 885. On appeal, Kennedy argued that the testimony constituted impermissible “other crimes” evidence under
“completes the story” or “inextricably intertwined” theories of intrinsic evidence. See, e.g., United States v. Bowie, 232 F.3d 923, 929 (D.C. Cir. 2000); United States v. Gorman, 613 F.3d 711, 719 (7th Cir. 2010); United States v. Green, 617 F.3d 233, 248 (3rd Cir. 2010).
In contrast, in United States v. McBride, 676 F.3d 385, 389–90 (4th Cir. 2012), McBride was charged with possession of cocaine with the intent to distribute, stemming from a 2009 drug sale at the Nu Vibe Club in Clarendon County, South Carolina. At trial, the government elicited testimony—over McBride‘s Rule 404(b) objection—describing a 2008 encounter during which a confidential police informant attempted to purchase crack cocaine from McBride at his residence. See id. at 390–91. On appeal, we rejected the argument that the 2008 encounter arose out of the same series of transactions as, or completed the story of, his possession of cocaine at the club in 2009. Id. at 396. We explained “nothing that occurred at McBride‘s residence in January 2008 was necessary to ‘complete the story’ of the crimes alleged at the club.” Id. Instead, the evidence was “relevant primarily to establish McBride‘s character as a ‘drug dealer‘” and constituted “the very type of evidence that the limitation imposed by Rule 404(b) was designed to exclude.” Id. at 398.
While there are other cases in which we have applied this principle, these two decisions illustrate that for evidence of uncharged conduct to be admissible to “complete the story” of a charged offense, the evidence must be probative of an integral component of the crime on trial or provide information without which the factfinder would have an incomplete or inaccurate view of other evidence or of the story of the crime itself. For example, in Kennedy, the evidence proved the defendant‘s involvement with the charged conspiracy, explained to the jury where the conspiracy sourced its cocaine and
And importantly, these decisions also make clear that evidence must be “necessary” to “complete the story” of the charged offense. Kennedy, 32 F.3d at 885. This requires a hard look to ensure that there is a clear link or nexus between the evidence and the story of the charged offense, and that the purpose for which the evidence is offered is actually essential. Otherwise, the “complete the story” doctrine might be used to disguise the type of propensity evidence that Rule 404(b) is meant to exclude.
B.
With this background in mind, we turn to the testimony of McCabe, Haraczy, Lively and Walker. From our review of the record, their testimony was not necessary to “complete the story” of the charged offenses and, therefore, described conduct that was extrinsic to the offenses for which Brizuela was charged. First, the testimony does not describe acts that “arose out of the same . . . series of transactions as the charged offense[s] . . . .” Kennedy, 32 F.3d at 885 (citation omitted). Under the CSA and accompanying regulations, registered doctors are prohibited from writing a prescription for controlled substances if the prescription is not “issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice.” United States v. Hurwitz, 459 F.3d 463, 475 (4th Cir. 2006) (quoting
For each of these charges, the “transaction” in question was Brizuela writing the specific prescription listed in that count of the indictment. Significantly, the challenged testimony of the four other patients did not reference or encompass any of the 21 prescriptions listed in the indictment. Thus, none of the acts they described arose from the same transaction, series of transactions or single criminal episode as the charged offenses. The district court indicated as much when, for example, it allowed Haraczy to testify about Brizuela‘s treatment of his mother. In that instance, it warned the jury that “there‘s been no charge in this indictment” related to Brizuela‘s treatment of her, and that it was only to serve as “background information concerning the course of [Brizuela‘s medical] practice . . . .” J.A. 611. Importantly, the warning did not connect the testimony to the charged offenses.
Second, none of the conduct described by these four patients was “necessary to complete the story of the crime[s] on trial.” Kennedy, 32 F.3d at 885 (internal alteration and citation omitted). The testimony did not, for example, offer facts that were necessary to prove a specific element of a charged offense or provide information that was essential to understanding how the offense was committed. Instead, the testimony offered new patient stories that were neither the basis for, nor necessary to prove, any of Brizuela‘s charges. These new stories constituted “overkill” or “piling-on” by the prosecution, which
The government insists—as it did below—that the challenged testimony completed the story of Brizuela‘s § 841 charges by providing “evidence that [Brizuela] consistently failed to follow generally recognized procedures,” which “tends to show that in prescribing drugs he was not acting as a healer but a seller of wares.” J.A. 91 (quoting United States v. Alerre, 430 F.3d 681, 691 (4th Cir. 2005)). Therefore, it claims that the testimony was necessary “[t]o prove the criminal violation” because it “showed the extent and severity of [Brizuela‘s] violation of a professional norm.” J.A. 91.
It is certainly true that in prosecuting doctors for unlawfully distributing controlled substances under § 841, the government must prove “beyond a reasonable doubt that the doctor was acting outside the bounds of professional medical practice.” Alerre, 430 F.3d at 690 (internal quotation marks omitted). And we have previously allowed “evidence that a physician consistently failed to follow generally recognized procedures [] to show that in prescribing drugs he was not acting as a healer but as a seller of wares.” Id. at 691. But neither Alerre nor any other case identified by the government allow admitting the testimony of patients whose treatment was not the basis for a defendant‘s § 841 charges, or permit admitting uncharged acts that are not necessary to the stories of the prescriptions
As stated above, a doctor‘s violation of § 841 is prescription specific, and writing a prescription only violates § 841 if, in doing so, the doctor strays from bounds of professional medical practices in treating that specific patient. See Tran Trong Cuong, 18 F.3d at 1142; United States v. Singh, 54 F.3d 1182, 1187 (4th Cir. 1995). Therefore, the relevant “story” for a § 841 offense is whether in writing the cited prescription, the defendant doctor was treating the patient receiving the prescription within the bounds of professional medical practices.
Here, the government did not sufficiently connect the treatment of McCabe, Haraczy, Lively and Walker to the stories of the 21 prescriptions charged in the indictment. It simply claimed that their testimony “shows the extent and severity of [Brizuela‘s] violation of a professional norm.” J.A. 91. This is not enough. Kennedy and our subsequent “complete the story” decisions require that the context provided by uncharged acts do more than simply show the “extent” and “severity,” of alleged violations. Instead, they must “complete the story of the crime[s] on trial.” Kennedy, 32 F.3d at 885 (emphasis added).
Finally, our precedent requires that uncharged acts must be “necessary” to complete the stories of the charged offenses. See e.g. Kennedy, 32 F.3d at 885. The government failed to directly address this necessity requirement below or on appeal. It certainly did not establish the testimony of McCabe, Haraczy, Lively and Walker was probative to an integral component of the crimes on trial or provided information without which the jury would have an incomplete or inaccurate view of other evidence or of the story of the charged crimes. Accordingly, for all of these reasons, the challenged testimony does not fall within Kennedy‘s “complete the story” doctrine and is not otherwise intrinsic to Brizuela‘s § 841 offenses.
C.
We turn now to the government‘s alternative admissibility argument. In its pretrial Rule 404(b) notice, the government argued that if the challenged testimony was not admissible as intrinsic evidence under Kennedy, it was otherwise admissible under Rule 404(b)(2) because it showed that Brizuela did not issue the 21 charged prescriptions due to a mistake or accident. While the district court did not directly address the merits of this alternative argument, the government reiterates it on appeal.
Rule 404(b)(1) prohibits the admission of extrinsic evidence of a defendant‘s other crimes or bad acts to show that the defendant acted in conformity to those prior actions.
“The government bears the burden of establishing that evidence of a defendant‘s prior bad acts is admissible for a proper purpose.” United States v. Hall, 858 F.3d 254, 266 (4th Cir. 2017). To meet this burden, the government must satisfy a four-prong test:
First, [t]he evidence must be relevant to an issue, such as an element of an offense, and must not be offered to establish the general character of the defendant. Second, [t]he act must be necessary in the sense that it is probative of an essential claim or an element of the offense. Third, [t]he evidence must be reliable. And fourth, the evidence‘s probative value must not be substantially outweighed by confusion or unfair prejudice in the sense that it tends to subordinate reason to emotion in the factfinding process.
Hall, 858 F.3d at 266 (internal quotation marks and citations omitted). Here, the government cannot carry this burden.
To begin with, the government did not explain why the absence of a mistake or accident was probative of an essential element of the charged offenses. Moreover, at trial, Brizuela never asserted he wrote any of the 21 prescriptions charged in the indictment due to a mistake or an accident. To the contrary, he argued his conduct was appropriate and in the best interest of his patients. Since neither mistake nor accident was an issue below, evidence purportedly speaking to those issues is not relevant to or probative of an essential element of the charged offenses.
D.
However, our determination that the district court abused its discretion in admitting the challenged testimony does not end our inquiry. Under
Critically, the government—as the beneficiary of the error—bears the burden of establishing that the error was harmless. United States. v. Curbelo, 343 F.3d 273 (4th Cir. 2003).
To be sure, there was significant evidence of Brizuela‘s guilt aside from the evidence of uncharged conduct. Among that evidence was the fact that, although only two of the five patients whose treatment was the subject of the indictment testified, the government‘s expert detailed the treatment of all five patients. Further, the government
But the record also supports the argument that the error was not harmless. From a sheer numerical standpoint, twice as many patients testified about uncharged conduct as those who testified about charged conduct. And aside from the numbers, the testimony of the patients whose treatment was not charged was sympathetic and dramatic. Also, the fundamental issue presented by each § 841 charge—whether Brizuela‘s conduct was outside the bounds of medical practice—is not, by its very nature, subject to a clear-cut answer. Thus, because there was conflicting expert witness testimony on this fundamental issue, the evidence of uncharged conduct could have tipped the scales in favor of the government on the counts of conviction. Finally, the split verdict indicates the case was close, perhaps so much so that the erroneously admitted evidence was the deciding factor in securing Brizuela‘s convictions.
On this record, reasonable minds could differ on the question of harmless error. Facing that close question, we decline to find the error was harmless on our own initiative and will not “relieve the government from the consequences of its failure to raise the issue of harmlessness on appeal.” United States v. Giovannetti, 928 F.2d 225, 227 (7th Cir. 1991). Instead, we conclude that the government did not carry its burden of establishing
III.
We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this Court and argument would not aid the decisional process. For the foregoing reasons, the decision of the district court is REVERSED AND REMANDED FOR A NEW TRIAL.