In prosecution of pharmacists for unlawful distribution of controlled substances, admission of portions of the Texas Pharmacy Laws and Regulations (TPLR) “clarify[ied] the scope and contour of criminal laws” and did not substitute a civil regulation for a criminal standard; in reviewing Due Process Claim, there was no plain error in admitting the TPLR evidence, in United States v. Brown, 553 F.3d 768 (5th Cir. Dec. 18, 2008) (No. 05-20997)
A recent Fifth Circuit case highlighted an issue that occasionally arises whether evidence concerning civil regulations and standards introduced in a criminal case may, at some point, impermissibly conflates civil and criminal standards. The issue arose in the context of a prosecution of several pharmacists for conspiring to and distributing pain management controlled substances (hydrocodone and promethazine) by using false prescriptions written by doctors.
At trial, government witnesses testified about the Texas Pharmacy Laws and Regulations (TPLR), and read portions to the jury, including “the DEA’s concern about diversion of prescription drugs to illicit uses, outline the responsibilities of pharmacists in helping to prevent this diversion, and provide tips and guidance for spotting illegitimate prescriptions.” Brown, 553 F.3d at 790. One defendant objected that the TPLR evidence was irrelevant and inadmissible hearsay. After his conviction, along with others, on appeal, he claimed the TPLR evidence was inadmissible. He also presented a new argument for the first time on appeal, claiming his Due Process rights were violated since “[t]he prosecution secured a criminal conviction by proving that the pharmacists violated [civil] TPLR standards and the standards of the regulations that it seeks to convey.” Brown, 553 F.3d at 791.
The circuit affirmed the admission of the TPLR evidence which was “probative of the appellants’ states of mind, speaking to their claims that nothing about the circumstances aroused their suspicions as to the illegitimate prescriptions. The book described factual circumstances under which an honest pharmacist’s suspicions should be aroused, and many of those circumstances were present in this case.” Brown, 553 F.3d at 790-91.
The circuit also reviewed the Due Process argument for plain error and none was found. The circuit agreed with the government’s line drawing on the issue: The government
“contrasts the irreproachable, commonplace use of duly issued regulations in clarifying the scope and contour of criminal laws with the inappropriate replacement of criminal laws with civil regulations. The government’s distinction is sound.”
Brown, 553 F.3d at 790=91.
In drawing the distinction, the circuit also contrasted two cases. The circuit found the case relied upon by the defense was readily distinguishable, citing United States v. Christo, 614 F.2d 486 (5th Cir. 1980) (reversing misapplication of bank funds conviction based on evidence which was based on violation of civil regulatory banking statute under plain error review). In contrast, the circuit cited with approval an unpublished opinion in United States v. Ogle, 201 F. App’x 979 (5th Cir. 2006) which rejected a similar claim in a prosecution of a physician for writing unlawful prescriptions. In that case, a regulation under 21 C.F.R. § 1306.04(a) (defining when physicians or pharmacists have impermissibly distributed controlled substances) was not used to establish a criminal violation but was “an interpretative regulation, not a civil regulation; the indictment only charged a violation of § 841(a), and physicians can be prosecuted for prescribing drugs outside of professional practice.” Brown, 553 F.3d at 775 n.8.
While the clarity on this matter can be somewhat opaque, the Fifth Circuit articulates a standard that can be used to address the issue. Does the civil or regulatory standard clarify and reinforce the criminal standard or is it used as a substitute, as in Christo?
Recently, this issue about conflating civil and criminal standards was considered in the context of expert testimony in a similar case, United States v. Chube, 538 F.3d 693 (7th Cir. 2008) (government’s medical experts did not conflate the civil malpractice standard with the criminal standard under the Controlled Substances Act), which was noted in Risks Of Conflating Civil And Criminal Standards In Prosecution (Part I).
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