Evidence of Uncharged Patients In Doc Drug Case Inadmissible

US v. Brizuela: Brizuela was a doctor in West Virginia who was charged with 21 counts of distributing controlled substances outside the bounds of medical practice, conspiracy, and 16 counts of illegal remuneration under the anti-kickback statute. At trial he was convicted of 15 counts of distribution, but acquitted on all other counts (the Government dismissed the conspiracy count). The 21 distribution charges involved prescriptions written for five different patients, two of whom testified at trial. The Government also called four other patients to testify about what they received from Brizuela, over his objection. Brizuela was eventually sentenced to 48 months in prison.

On appeal, the Fourth Circuit reversed Brizuela’s convictions. Among the issues Brizuela raised was that the district court erred by allowing the Government to call patients to testify beyond those involved in the counts charged in the indictment. The court rejected the Government’s argument that such testimony was necessary under Rule 404(b) to “complete the story of the crime on trial.” The court noted that the “crime on trial” was distribution of drugs to particular patients and the testimony of other patients could not complete that story. The court also rejected the Government’s argument that the testimony was necessary to show Brizuela’s conduct was not a mistake or accident, but the court noted he never made that argument. The court also held that the error was not harmless because (1) the Government never argued that it was and (2) it was a “close” question and therefore was resolved in Brizuela’s favor.

This case is a really good, deep dive into the limits of the “complete the story” argument of which the Government is so fond and worth a close read.

Guilty Plea Waives Sixth Amendment Speedy Trial Challenge

US v. Lozano: Lozano illegally reentered the country in 2011 and was charged with state crimes. While in custody he was also charged federally with illegal reentry. However, he was deported when his state case was concluded, without ever learning of the federal charges. In 2018, after he returned to the US, he was arrested on the 2011 illegal reentry charge. He pleaded guilty and was sentenced to 51 months in prison.

On appeal, the Fourth Circuit affirmed Lozano’s conviction and sentence. For the first time, Lozano argued that the delay between his charge and his guilty plea violated his Sixth Amendment right to a fair trial. The court rejected that argument on multiple grounds. First, it concluded that by pleading guilty, Lozano waived this issue. It rejected Lozano’s argument that the issue was preserved under the Supreme Court’s recent decision in Glass, noting that a speedy trial claim was not the kind of issue that goes to “the government’s power to initiate the proceedings against the defendant.” Second, applying plain error, the court found Lozano’s argument failed on the merits anyway. While the delay was presumptively prejudicial, the other factors weighed against Lozano, including that he did not assert his right to a speedy trial below and could not show any prejudice.

Government Can’t Waive First Closing Argument and Keep Rebuttal

US v Smith: Smith went to trial on two charges of possession of meth with intent to distribute arising from two separate incidents a month apart – the first involved just a “detectable” amount of meth, while the second charged more than 50 grams were involved. After the presentation of evidence, the Government stated that it only wanted to make a single closing argument in rebuttal to Smith’s. Smith objected, arguing that if the Government wanted to give up its initial closing argument it must also forfeit its rebuttal. The district court disagreed and granted the Government’s wish. During his closing argument Smith conceded he possessed the meth, but argued that he lacked the intent to distributed it, the larger second amount having been the result of buying in bulk. Smith was convicted of only simple possession on the first count, but possession with intent on the second.

On appeal, the Fourth Circuit affirmed Smith’s convictions. Relying on Rule 29.1 of the Rules of Criminal Procedure, the court concluded that the district court erred by allowing the Government to waive its initial closing argument while retaining its rebuttal. The rules is “clear as to how closing arguments shall proceed, and it thus cabins the district court’s latitude in a discrete but important way” that “provides each side in a criminal case with a meaningful opportunity to rebut the other.” However, in this case the error was harmless, as Smith could not show any prejudice from the district court’s decision. In particular, the court noted that Smith “never asked the district court for the opportunity to make a sur-rebuttal.” The court also rejected arguments that Smith’s case should have been dismiss due to the improper designation of an Acting Attorney General during his case and that a police officer’s testimony about tools of the drug trade was improperly admitted.