United States v. Lamartiniere

1

UNITED STATES OF AMERICA v. RANDY J. LAMARTINIERE

Criminal Action No. 18-00087-BAJ-RLB

United States District Court, M.D. Louisiana

March 9, 2023

RULING AND ORDER

BRIAN A. JACKSON, JUDGE

Before the Court is Defendant's Motion For New Trial (Doc. 227) and Defendant's Motion For Judgment Of Acquittal (Doc. 228). The United States opposes each motion. (Docs. 234, 235). Defendant's motions will be denied.

I. BACKGROUND

This matter proceeded to jury trial on December 5, 2022, under a Superseding Indictment charging Defendant with 28 counts of unlawful distribution of Schedule II controlled substances in violation of 21 U.S.C. § 841(a)(1).^[1] (Docs. 114, 210). Defendant was formerly a licensed medical practitioner, and each count alleged that Defendant unlawfully dispensed prescriptions for painkillers and stimulants in 2015 and early 2016, when he operated his own medical practice in Baton Rouge, Louisiana. The United States and the Defendant each presented a case, and on December 9 the evidence was submitted to the jury for decision. (Docs. 210, 211, 213 217, 219). After approximately four hours of deliberation, the jury rendered its verdict convicting Defendant of 20 counts of unlawful distribution of controlled substances, and acquitting Defendant of the remaining eight counts. (See Docs. 219, 222). Defendant's sentencing hearing is set for March 30, 2023. (Doc. 219).

Now Defendant moves for new trial, arguing (1) the Court's jury instructions regarding the meaning of “authorization” under 21 U.S.C. § 841 misstated the law; (2) the Court's “deliberate indifference” instruction was not supported by the evidence; (3) the United States' expert witness, Dr. Gene Kennedy, was unqualified to offer opinions regarding whether Defendant's prescriptions were legitimate or illegitimate; and (4) cumulative error deprived Defendant of a fair trial. (Doc. 227). Alternatively, Defendant moves for judgment of acquittal, arguing that the evidence against him was not sufficient to establish that he knowingly dispensed prescriptions without “authorization,” as required by 21 U.S.C. § 841. (Doc. 228).

II. LAW AND ANALYSIS

A. Motion For New Trial

Federal Rule of Criminal Procedure (“Rule”) 33 authorizes the Court to “vacate any judgment and grant a new trial if the interest of justice so requires.” Fed. R. Crim. P. 33(a). Yet, despite Rule 33's seemingly broad grant of discretion, the U.S. Court of Appeals for the Fifth Circuit stresses that motions for new trial are “disfavored,” United States v. Mahmood, 820 F.3d 177, 190 (5th Cir. 2016), and should be granted “infrequently by district courts, unless warranted by ‘exceptional' circumstances.” United States v. Tarango, 396 F.3d 666, 672 (5th Cir. 2005).

Broadly speaking, Rule 33 is exercised in two situations. One is when error infects the trial-perhaps the erroneous admission or exclusion of evidence, inflammatory comments by a lawyer, or faulty jury instructions. The other is when the court believes the evidence weighs heavily against the verdict.

United States v. Crittenden, 46 F.4th 292, 296 (5th Cir. 2022).

Here, no exceptional circumstances justify a new trial.

i. The Court properly instructed the jury regarding 21 U.S.C. § 841's “authorization” element

First, this Court has already thoroughly addressed (and rejected) Defendant's objection(s) that the Court mischaracterized the “authorization” element of unlawful dispensation of prescription drugs under 21 U.S.C. § 841, explaining on the record at the December 8, 2022 charge conference that Defendant's position that “a prescription is unauthorized if and only if it is not issued for a legitimate medical purpose” simply is not supported by controlling Supreme Court and Circuit precedent. (Doc. 227 at p. 4). Rather, the Circuit expressly instructs that “authorization” is a two-prong test, requiring both (1) that the prescription was “issued for a legitimate medical purpose,” and (2) “in the usual course of... professional practice”:

The regulation [21 C.F.R. § 1306.04] states that for a “prescription for a controlled substance to be effective[, it] must be issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice.” 21 C.F.R. § 1306.04. Both prongs are necessary for a prescription to be legitimate; one is not sufficient. Id.

The logical converse is that a practitioner is unauthorized to dispense a controlled substance if the prescription either lacks a legitimate medical purpose or is outside the usual course of professional practice. In other-words, knowingly distributing prescriptions outside the course of professional practice is a sufficient condition to convict a defendant under the criminal statutes relating to controlled substances.

United States v. Armstrong, 550 F.3d 382, 397 (5th Cir. 2008) (citation omitted), overruled on other grounds by United States v. Balleza, 613 F.3d 432, 433 n.l (5th Cir. 2010) (per curiam).

The Fifth Circuit's definition of the authorization element survives the U.S. Supreme Court's holding in Ruan v. United States, which held merely that a conviction for unlawful dispensation of prescriptions under § 841 requires the Government to prove that the medical professional defendant “knew or intended that his or her conduct was unauthorized.” 142 S.Ct. 2370, 2382 (2022). Put differently, Ruan did not address-much less disturb-the Fifth Circuit's two-prong test, as recognized most recently by the Eleventh Circuit, and at least one District Court. See United States v. Mencia, No. 18-13967, 2022 WL 17336503, at *7 (11th Cir. Nov. 30, 2022) (“To convict a physician of violating Section 841(a)(1), the government must prove that he dispensed controlled substances for other than legitimate medical purposes in the usual course of professional practice, and that he did so knowingly and intentionally. Because the Act prohibits the distribution of prescription drugs that is not authorized, a distribution is unlawful if 1) the prescription was not for a ‘legitimate medical purpose' or 2) the prescription was not made in the ‘usual course of professional practice.” (quotation marks and citations omitted)); United States v. Taylor, No. 21-cr-00013, 2022 WL 4227510, at *2 (E.D. Ky. Sept. 13, 2022) (Van Tatenhove, J.) (“[T]he [Ruan] Court implicitly re-affirmed the long-held notion that the CSA criminalizes conduct by doctors, just as it does street dealers and drug traffickers, if they are acting outside the course of professional practice.”).

Here, after carefully considering the Supreme Court's Ruan decision, the Fifth Circuit's Armstrong decision, and the arguments of the parties at the charge conference, the Court provided the following instruction regarding the authorization element:

A prescription is “authorized” if it is issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice. Both prongs are necessary for a prescription to be authorized; one is not sufficient. That is, the prescription must be issued for a legitimate medical purpose and within the usual course of a practitioner's professional practice.

By contrast, a prescription is unauthorized if the prescription either lacks a legitimate medical purpose or is outside the usual course of professional practice. In other words, knowingly issuing a prescription outside the course of professional practice is a sufficient condition to convict a medical practitioner of unlawful dispensation of a controlled substance. Likewise, knowingly issuing a prescription without a legitimate medical purpose is a sufficient condition to convict a medical practitioner of unlawful dispensation of a controlled substance.

This instruction is complete and correct under Ruan and Armstrong. Defendant's renewed objection is baseless.

Defendant's remaining objections to the Court's “authorization” instruction are scattershot, at times bordering on unintelligible. (See Doc. 227 at pp. 16-40). Three, however, deserve attention. First, Defendant is wrong to state that the Court's instructions “did not require the Government to prove that the defendant knew the charged prescriptions were unauthorized.” (See Doc. 227 at p. 16). To the contrary, as required by Ruan, 142 S.Ct. at 2382, the Court expressly instructed the jury that “to find the defendant guilty of the crimes alleged in each count of the Indictment, you must be convinced that the government has proved each of the following beyond a reasonable doubt: ... the defendant knew that he was acting in an unauthorized manner when he dispensed the controlled substance, or intended to act in an unauthorized manner.”

Second, there is no authority whatsoever for Defendant's position that the federal regulations cannot be referenced when determining the contours of the authorization element. (See Doc. 227 at pp. 19-40). Rather, as set forth above, the most recent authorities illustrate that even after the Ruan decision, 21 C.F.R. § 1306.04 remains the touchstone for defining “authorization” under § 841. See Mencia, 2022 WL 17336503, at *7 (“Because the Act prohibits the distribution of prescription drugs that is not authorized, a distribution is unlawful if 1) the prescription was not for a ‘legitimate medical purpose' or 2) the prescription was not made in the ‘usual course of professional practice.'” (quotation marks and citations omitted)).

Finally and bizarrely, Defendant suggests that he is immune from prosecution under § 841 because he is (was) a doctor, and not a drug dealer as “conventionally understood.” (Doc. 227 at pp. 19-20). Whatever privileges Defendant may have enjoyed as a highly educated, well-compensated medical professional, certainly he was not...