Admitting Expert Testimony On “Common Red Flags” Of Illicit Pharmaceutical Schemes

Tenth Circuit clarifies that just as admission of expert testimony regarding the context of street drugs is routinely admitted under FRE 702, expert testimony regarding the context of illicit pharmaceutical operations is similarly admissible, in United States v. Lovern, 590 F.3d 1095 (10th Cir. Sept. 9, 2009) (No. 08-3141, 08-3149)

For a variety of criminal cases, trial courts may admit law enforcement witness expert testimony about the context of a crime. The purpose of this type of witness is to describe the common patterns of organizational behavior by those engaged in a certain type of criminal activity, such as drug production or trafficking. The reason for admitting this expert testimony is to help the jury understand the context in which the charged criminal activity normally occurs. In a recent case, the Tenth Circuit explained that expert law enforcement testimony concerning the context of an illegal scheme to fill prescriptions that were issued outside the usual course of contemporary medical practice was admissible to help the jury understand the nature of the charged controlled substances offense being tried.

In the case, defendant Lovern was a pharmacist with about 45 years of experience who worked in the pharmacy of defendant Hilst, who pled guilty to conspiracy to dispense drugs in violation of the Controlled Substances Act. Hilst’s business plan involved “securing customers exclusively through websites run by two companies” that allowed “customers across the nation [to] receive[ ] prescription drugs simply by filling out an online questionnaire.” This matter would be reviewed by actual physicians who would approve the requested prescriptions, without ever examining the web applicant or verify any the personal information in the web customer’s order. Indeed, the doctors never had “any dealings at all with the subjects of their prescriptions.” Lovern, 590 F. 3d 1098.

At trial, one issue of focus was whether the defendant, in filling prescriptions, knowingly did so when the prescriptions were not issued “for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice.” Lovern, 590 F. 3d 1099 (citing 21 C.F.R. § 1306.04(a)). The defendant contended that the trial court erred in admitting the expert testimony of a DEA investigator who was not a doctor on the question of whether the prescriptions were issued in the usual course of professional practice.

The Tenth Circuit rejected this argument on two grounds. First, the circuit rejected the argument that only a physician could testify as to whether there was a legitimate medical purpose of the prescriptions. While such testimony is not invariably admissible, the circuit noted that that it generally could be admitted because of the legal “duty on pharmacists not to knowingly fill prescriptions issued outside the usual course of medical practice. Given this legal duty, it does not strain the imagination to think that some pharmacists might know and be qualified to speak about what it means for a prescription to be consistent or inconsistent with the usual course of medical practice.” Lovern, 590 F. 3d 1102 (citation omitted).

Second, the circuit noted that the DEA witness had sufficient expertise to testify on violations of the Controlled Substances Act. As explained by the circuit, the witness was:

“[A] DEA diversion investigator with over fifteen years of experience. In cases prosecuting the trafficking of common street drugs under the CSA [Controlled Substances Act], courts have routinely upheld the admission of expert testimony from law enforcement officers seeking to identify for the jury typical indicia of drug trafficking activity. Ms. O’Malley’s testimony sought to do much the same in this case: to identify for the jury common red flags suggestive of an illicit pharmaceutical operation. We are given no reason to think such testimony is unhelpful or irrelevant or otherwise improper simply because this case arose in the context of pharmaceutical rather than street drugs, and we note that other circuits have permitted testimony like Ms. O’Malley’s.”
Lovern, 590 F. 3d 1102 (citing United States v. Seelig, 622 F.2d 207, 213-14 (6th Cir. 1980)).

Law enforcement expert testimony on the context of a charged crime is admitted with some frequency. The Tenth Circuit noted that similar expert testimony in cases involving pharmaceutical prescribing had been admitted in the Sixth Circuit. However, the case it found for this proposition was decided in 1980. This is in contrast to the use of FRE 702 to admit expert testimony on the context of the illegal drug trade, such as:

  • United States v. Jeanetta, 533 F.3d 651, 657–58 (8th Cir. 2008) (admitting police officer’s testimony on use of Ziploc bags to repackage drugs, use of radios, scanners, cameras, monitors and night vision goggles, and practice of keeping large quantities of cash around because this evidence was relevant to the defendant’s claim that he was a user and not a trafficker)
  • United States v. Beltran-Arce, 415 F.3d 949, 951–52 (8th Cir. 2005) (officer testimony admitted regarding criminal drug activity and how to interpret notes seized taken from the defendant)
  • United States v. Parra, 402 F.3d 752, 758 (7th Cir. 2005) (admitting expert testimony on countersurveillance techniques in drug trading)
With the Tenth Circuit’s review of the admissibility of expert testimony on the context of a crime, it will be interesting to see if other pharmaceutical cases may involve this type of expert testimony with greater frequency.

Federal Rules of Evidence