Sunday, December 10, 2017

Case o' The Week: Expert Case A Bitter Pill to Swallow - Diaz and Expert Testimony on Ultimate Legal Issue

  A doc prescribes 5 million opiate pills in four years.
  (Yet the government still needs an expert to opine on the ultimate legal issue: that this was “outside the usual course of professional practice?”)
United States v. Julio Diaz, 2017 WL 6030724 (9th Cir. Dec. 6, 2017), decision available here.

Players: Decision by Judge Christen, joined by Judges Kleinfeld and Graber. 
  Hard-fought appeal by former CD Cal AFPD Davina Chen.  

Facts: Dr. Diaz operated a clinic that served geriatric patients. Id. at *1. Over four years, he wrote 50,000 prescriptions and distributed over 5 million opiate pills – some patients were prescribed over 60 tablets a day. Id.
  He went to trial on 79 counts of unlawfully distributing controlled prescription drugs, in violation of 21 USC § 841(a)(1). Id. Among other things, that statute requires proof that the distribution of the drugs was “outside the usual course of professional practice and without a legitimate medical purpose.” Id. (citation omitted).
  At trial, a government expert testified without defense objection that Dr. Diaz’s prescriptions were written “outside the usual course of medical practice” and “without a legitimate purpose.” Id.
  Diaz was convicted on all counts, and sentenced to the maximum Guideline range: 327 months. Id.

Issue(s): “Diaz timely appeals, arguing that Dr. Chavez impermissibly offered opinion testimony as to a legal conclusion.” Id.  

Held: “We hold that if the terms used by an expert witness do not have a specialized meaning in law and do not represent an attempt to instruct the jury on the law, or how to apply the law to the facts of the case, the testimony is not an impermissible legal conclusion.” Id. at *3.
  “[The government’s expert’s] testimony passed muster under Rules 702 and 704, and the district court did not plainly err by admitting it into evidence.” Id. at *4.  

Of Note: Julio Diaz joins a long list of disappointing expert testimony cases. AUSAs will try to stretch the opinion to argue that “professional” experts can opine at will as to all legal conclusions. Judge Christen, however, strictly limits this “ultimate issue” testimony to a doc’s testimony on “legitimate medical purpose” – a term (we’re told) that does not have a “separate, distinct, and specialized meaning in law.” Id. at *3. The Ninth quotes favorably from a Fourth Circuit case, which distinguished this permitted physician testimony from – for example – testimony about “extortion, deadly force, fiduciary, and unreasonably dangerous.” Id. (quoting United States v. McIver, 470 F.3d 550,561-62 (4th Cir. 2006)). Invoke Diaz’s internal limitations to help prevent further erosion of the vulnerable bulwarks of FRE 702 and 704.

How to Use: While this is a plan error case, there is no plain error analysis in the opinion – just a cursory acknowledgement at the outset, id. at *2, and the “no plain error” holding at the end, id. at *4. Absent is any explanation of how the Court’s decision jives with the Olano plain error prongs. From ambiguity, opportunity. If the government offers similar doctor testimony in your trial, object and (try) to distinguish Julio Diaz as an extraordinarily deferential, plain error review decision.
For Further Reading: What a difference perspective makes. For those in the trenches of indigent criminal defense, the American Bar Association can sometimes seem like a conservative organization – filled with former AUSAs who sit on the ABA’s white collar and criminal justice committees. Senate Republicans, however, have a decidedly opposite view – they “have declared war on the American Bar Association.” See Republicans step up defense of ‘not qualified’ judicial nominees, available here at Politico.
   Four of President Trump’s judicial candidates have earned a “not qualified” rating from the ABA. The ABA’s role (or lack thereof) in judicial vetting will faces an upcoming test with a Senate procedural vote on Mr. Leonard Steven Grasz. Mr. Grasz is nominated for the Eighth Circuit Court of Appeals, and received a unanimous “not qualified” stamp from the ABAs evaluators. Id.
  Will be interesting to see what role (if any) the ABA plays in the Trump candidates for the vacant Ninth Circuit seats.

Steven Kalar, Federal Public Defender Northern District of California. Website at


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