Monday, August 18, 2008
OxyContin Blues: Seventh Circuit Finds Expert Testimony On Medical Purposes Doesn't Violate Rule 704(b)
The Seventh Circuit's recent opinion in United States v. Chube, 2008 WL 3562641 (7th Cir. 2008), contains an interesting Rule 704 ruling. Chube dealt with the DEA's launching of the "OxyContin Action Plan" to ferret out unlawful uses of the drug. Dr. David Demaret Chube II (Dr. David) and his brother Dr. Charles Randall Chube (Dr. Randy) were two of the hundreds of physicians investigated by the DEA for possible illegitimate prescribing of the drug. And that investigation yielded a conviction of Dr. Randy on one count of unlawful distribution and a conviction of Dr. David on four counts of unlawful distribution and two counts of defrauding a health benefit program.
The testimony of Dr. Theodore Parran and Dr. Robert Barkin, which was allowed only after the trial court denied the defendants' pre-trial motion in limine, was instrumental in securing these convictions. Dr. Parran evaluated 98 of the defendants' patient files and concluded that the prescribing "was not done consistent with the usual standards of medical practice" and thus was not done with a "legitimate medical purpose." Meanwhile, Dr. Barkin reviewed a smaller number of the patient files and also concluded that the prescriptions were issued "[o]utside the scope of medical practice, not for legitimate purposes." The defendants did not renew their objection to this testimony at trial, but they raised it again when appealing their convictions to the Seventh Circuit.
The Seventh Circuit first had to decided whether the defendants preserved this issue for appeal because they did not renew their objection to the testimony at trial. And the court found that they did, concluding that the trial court did not signal any willingness to reconsider its ruling during the trial. The Seventh Circuit then considered the applicable rules of evidence.
Federal Rule of Evidence 704(a) states that:
"Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact."
Meanwhile, Federal Rule of Evidence 704(b) states that:
"No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone."
The Seventh Circuit noted that the government's argument was "that neither Dr. Parran nor Dr. Barkin ever claimed to know the defendants' intent, and so the opinions that they offered were not barred by Rule 704(b)." It then found that "[p]articularly since the defense raised no contemporaneous objection, we agree with this position, though we note that portions of Dr. Parran's testimony come close to a statement about the Doctors' mental state."
This finding seems unfair to me. The court acknowledged that the issue was a close call and yet decided against the defendants in large part because they failed to raise a contemporaneous objection. And yet, earlier in the opinion, the Seventh Circuit noted that the trial court denied their motion in limine and then did not signal any willingness to reconsider its ruling during the trial. I don't see the justice in finding against the defendants on a borderline issue based upon their failure to renew their objection when the court itself acknowledged that there was no reason for the defendants to renew their objection.
Furthermore, I don't think that the cases cited by the Seventh Circuit support its opinion. It first cited to United States v. Katz, 445 F.3d 1023 (8th Cir. 2006), in which the Eighth Circuit found that testimony by the same doctor who testified in Chube -- Doctor Parran -- did not violate Rule 704(b). The Seventh Circuit noted that the court in Katz was "satisfied that 'Dr. Parran did not testify regarding the subjective mental state of Dr. Katz upon writing the prescriptions charged in the indictment.'"
My response is that of course it was satisfied. As the court noted in Katz, "during cross-examination of Dr. Parran, defense counsel asked Dr. Parran on three occasions whether he was purporting to express an opinion as to what Dr. Katz might have had in his mind at the time that he wrote the prescriptions at issue in the indictment. Each time that he was asked, Dr. Parran denied doing so." As far as I can tell, however, Dr. Parran gave no similar testimony in Chube.
The other main case cited by the Seventh Circuit was its own previous opinion in United States v. Glover, 479 F.3d 511 (7th Cir. 2007). In Glover, the defendant was apprehended with a small quantity of drugs on him, and a DEA task force officer testified "that street level drug dealers typically sell very small quantities of cocaine and heroin, which can be packaged in capsules, bottle caps, corner cut baggies, or foils. [He] also observed that even small amounts of drugs, as in Glover's case, can be distributed if packaged in small enough quantities. He explained that street dealers often maintain small stashes of drugs nearby for resupply, rather than carrying all of their drugs with them. Finally, Coleman testified that firearms are common 'tools of the trade' for drug dealers."
The Seventh Circuit found that this testimony did not violate Rule 704(b), finding that:
"[W]hen a law enforcement official states an opinion about the criminal nature of a defendant's activities, such testimony should not be excluded under Rule 704(b) as long as it is made clear, either by the court expressly or in the nature of the examination, that the opinion is based on the expert's knowledge of common criminal practices, and not on some special knowledge of defendant's mental processes. Relevant in this regard, though not determinative, is the degree to which the expert refers specifically to the 'intent' of the defendant."
Again, I don't see how this case is analogous. The DEA task force officer in Glover merely testified that the defendant's possession of a small quantity of drugs could be consistent with the common practices of street level drug dealers. Conversely, the state's witnesses in Chube looked at the doctors' mental processes by considering their patient files and concluded that their prescriptions were not given for legitimate medical purposes; they did not merely claim that their prescription pattern could be consistent with a common criminal practice.
In conclusion, I'm not sure whether the Seventh Circuit's conclusion in Chube, but I am sure that I don't like the way it got to that conclusion.