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United States v. Akers

United States District Court, E.D. Kentucky, Southern Division, Pikeville

October 7, 2019

SCOTTY R. AKERS, M.D., et al., Defendants.



         The Court confronts Defendant Akers's and the Government's pending motions in limine.[1] DE ##34, 42 & 43. The Indictment alleges that Defendants Scotty R. Akers, M.D. and Serissa L. Stamper[2] conspired to unlawfully distribute controlled substances outside the scope of professional practice and not for a legitimate medical purpose, in violation of 21 U.S.C. §§ 841(a)(1) and 846. DE #1 at 2-3 (Count 1). The United States also charges Defendants with aiding and abetting one another in the unlawful distribution of six identified prescriptions, in violation of § 841(a)(1) and 18 U.S.C. § 2. Id. at 3 (Counts 2-7). Jury selection is set to begin on October 18, 2019, with presentation of evidence beginning October 21. See DE #45 (Minutes).

         1. Akers's Motion in Limine[3]

         Akers seeks to exclude two categories of evidence on Rule 401/403 bases: (1) proof relating to the Kentucky Board of Medical Licensure (KBML) investigation of Akers, and, specifically, an Agreed Order into which Akers and the KBML entered; and (2) proof generally “about the effects of prescription drug abuse on the community.” DE #34. The United States opposes exclusion of either evidentiary class. DE #40.

         KBML Proof

         The KBML investigated Akers between November 2017 and May 2018, prompted by a third-party worker's compensation administrator's submitted grievance. Akers and the KBML ultimately entered an Agreed Order containing several factual and legal stipulations regarding his controlled substance prescribing conduct, patient management and oversight procedures, and record-keeping practices. See DE #40-1 (Agreed Order). Akers consented to an indefinite practice restriction, and the Agreed Order conditioned any future license reinstatement effort on strict compliance with several listed corrective conditions. See Id. at 8-11.

         Akers contends that the “[e]vidence relating to claims asserted by the [KBML] [is] not relevant to any issue at trial[.]” DE #34 at 3. Evidence is relevant if it tends to make any fact of consequence to the action's determination more or less probable than it otherwise would be. See Fed.R.Evid. 401. “The standard for relevancy is ‘extremely liberal.'” United States v. Whittington, 455 F.3d 736, 738 (6th Cir. 2006) (quoting Douglass v. Eaton Corp., 956 F.2d 1339, 1344 (6th Cir. 1992)); see Id. at 738-39 (“[E]ven if a district court believes the evidence is insufficient to prove the ultimate point for which it is offered, it may not exclude the evidence if it has the slightest probative worth.”) (quoting DXS, Inc. v. Siemens Med. Sys., Inc., 100 F.3d 462, 475 (6th Cir. 1996) (citation omitted)). Relevant evidence is generally admissible. Fed.R.Evid. 402.

         The KBML Agreed Order[4] easily clears the Rule 401 hurdle. The relevance of this stipulation-containing Akers's own admissions, which, if offered against him, are non-hearsay statements per Rule 801(d)(2)(A)[5]-is readily apparent. The Government seeks to prove that Akers conspired to distribute opioids outside the scope of his professional practice and not for any legitimate medical purpose, during the August 2016 to May 2018 timeframe, and under certain specific common circumstances (i.e., in non-medical settings, without meaningful patient examinations, and generally for cash exchanges). See DE #1 (Indictment). Akers's own stipulations regarding his prescribing practices and patient interactions during that temporal window-and specifically with respect to several of the Government-identified patients and under the alleged conspiracy circumstances-are unquestionably germane to facts at issue in this case.[6]See, e.g., DE #40-1 (Agreed Order) at 2 (Akers admitting that he continued to write prescriptions on a pad from his closed pain clinic); id. at 3-4 (admitting specific prescribing conduct-including identified patients, dates, drug types, and dosages-from December 2017 through March of 2018); id. at 5 (providing data regarding Akers's overall prescribing record during the October 2016 to February 2018 timeframe).

         Akers's Agreed Order admissions are exceptionally probative of his course of prescribing conduct and patient oversight/management during the relevant period and, consequently, centrally relevant to whether Akers's conduct was within usual professional scope and for legitimate medical purposes. The Agreed Order's stipulated facts further illuminate Akers's record-keeping practices during the at-issue timeframe and are similarly probative of practice legitimacy. See Id. at 5-6. Further, Akers's entrance into the Agreed Order and adoption of its content-including consulting doctors' characterizations of his practice and prescribing habits, and Akers's own concession of statutory/regulatory violations-is probative of his knowledge and intent and, thus, directly relevant to the criminal charges in this case. See, e.g., id. at 3 (acknowledging consulting physician's findings that Akers's prescribing “pattern clearly was against the standards of practice, promoting opioid abuse that could lead to opioid overdose/diversion and death[]”); id. at 7 (admitting that he “engaged in conduct which violates the provisions of KRS 311.595(9), ” which itself prohibits “dishonorable, unethical, or unprofessional conduct of a character likely to deceive, defraud, or harm the public[]”).[7] Indeed, the stipulated admissions-relating to Akers's opioid prescribing and practice deficiencies during the Indictment-alleged timeline-are just the sort of facts the Government will seek to prove at trial. In sum, the KBML Agreed Order easily satisfies minimal Rule 401 relevance requirements.

         Nor does Rule 403-the “last harbor available” in Akers's exclusionary venture-carry the day. See Griffin v. Condon, 744 Fed.Appx. 925, 931 (6th Cir. 2018). Akers argues that “even if the KBML's claims did have some minimal relevance, the probative value would clearly be outweighed by the potential for unfair prejudice, confusing, and misleading the jury.” DE #34 at 4-5. He speculates that, due to the proceedings' differing legal standards and proof burdens, any KBML proof is likely “to distract from the true questions at issue and suggest a decision on an improper basis.” Id. at 4. The Court disagrees. Pertinent here, Rule 403 permits the Court to exclude relevant proof only “if its probative value is substantially outweighed by a danger of . . . unfair prejudice, confusing the issues, [or] misleading the jury[.]” Fed.R.Evid. 403 (emphasis added). The Rule thus sets a “high bar for exclusion.” United States v. Guzman, 571 Fed.Appx. 356, 361 (6th Cir. 2014) (citation omitted). Logically, where the probative value of the evidence is especially great, as here, the party challenging its admission must demonstrate correspondingly heightened risk of unfair prejudice to substantially outweigh that value.

         Akers is free to highlight at trial-through cross examination and argument-the lighter, civil standard applicable in the KBML proceeding. And, he may advocate for (and the Court envisions) an appropriate limiting instruction, as necessary. See United States v. Asher, 910 F.3d 854, 862 (6th Cir. 2018) (“[W]hen determining whether evidence is unduly prejudicial, we consider whether a limiting instruction can mitigate the risk of prejudice.”) (citing United States v. Ayoub, 498 F.3d 532, 548 (6th Cir. 2007)). The available mitigating measures thus fairly guard against risk of possible jury confusion or misinterpretation of the Agreed Order's . See, e.g., United States v. Sun, 673 Fed.Appx. 729, 732 (9th Cir. 2016) (finding no Rule 403 error, among other things, in admission of medical board records, particularly where a limiting jury instruction was given); United States v. Phung, No. CR-08-131-M, 2009 WL 10672221, at *1 (W.D. Okla. Jan. 22, 2009) (noting admissibility of medical board evidence and directing the parties to propose “a limiting instruction concerning the burden of proof utilized in the” board proceeding as related to the criminal action).[8]

         Notably, the Agreed Order is not merely a bare admission of civil negligence or malpractice; nor is it an independent administrative finding in which Akers played no role. Rather, it is an Akers-adopted, fact-based characterization of Defendant's prescribing conduct and practice management during the at-issue period, thus acutely probative of the Government's case theory for the reasons discussed. The jury may consider Akers's (relevant and highly probative) admissions, contained in the Agreed Order, in this context. Critically, “damage to a defendant's case that results from the legitimate probative force of the evidence[]” does not support Rule 403 exclusion; unfair prejudice, under the Rule, refers only to “evidence which tends to suggest a decision on an improper basis.” See United States v. Johnson, 581 F.3d 320, 327 (6th Cir. 2009). On balance, the potential for unfair prejudice-adequately addressable by the prophylactic measures discussed-simply does not substantially outweigh the evidentiary value of the Agreed Order. Rule 403 exclusion is here unwarranted. See United States v. LaVictor, 848 F.3d 428, 444 (6th Cir.), cert. denied, 137 S.Ct. 2231 (2017) (noting that “[u]nder Rule 403 . . ., a district court has very broad discretion in” balancing probative value against potential prejudice) (internal quotation marks and citations omitted).

         Evidence Regarding Community Impact of Prescription Drug Abuse

          Akers perfunctorily requests categorical exclusion of “any evidence introduced by the government or arguments about the effect of prescription drug abuse on individuals or the community[, ]” contending that such “‘scourge of the community' arguments” are more prejudicial than probative. DE #34 at 5. The United States opposes exclusion and identifies, generally, a few types of evidence related to prescription drug abuse that may be relevant and admissible in this case. DE #40 at 11-12. The Court agrees that, for example, testimony regarding addiction risks associated with certain controlled substances, or common marks of drug-seeking behavior, may potentially be probative of the Government's theory that Akers ignored obvious red flags and/or failed to manage his prescribing practice per accepted professional standards. Wholesale exclusion of evidence relating to prescription drug abuse effects is thus inappropriate.

         Nevertheless, without specific testimony or other evidence before it, the Court cannot make particularized determinations as to ultimate admissibility. The Court will, in context at trial, weigh the probative value of any evidence the Government seeks to admit against the proof's potential prejudice (if any), per the Rules and applicable standards.[9] Accordingly, the Court denies Akers's request to categorically exclude the challenged evidence, without prejudice to renewal as related to specific proof at trial.

         2. The Government's Omnibus Motion in Limine

         The United States seeks to exclude twelve general categories of evidence, largely based on the Federal Rules of Evidence and other foundational evidentiary principles. DE #42. Akers did not specifically oppose any of the DE #42 exclusion requests.[10] Stamper opposed only two. DE #47. In large part, DE #42 simply asks the Court to fairly and accurately apply the Rules and established Circuit law. See, e.g., DE #42 at 1-2 (seeking to exclude speculation regarding the absence of witness testimony); 6th Cir. Pattern Jury Instr. 1.04(4) (directing jurors not to “speculate about what a witness might have said or what an exhibit might have shown[, ]” as those things are not evidence); accord United States v. Burroughs, 465 Fed.Appx. 530, 535 (6th Cir. 2012) (favorably noting the district court's instruction that the jury “not . . . speculate about what a witness might have said or what an exhibit might have shown”); DE #42 at 3 (seeking exclusion of references to whether others should be charged for the at-issue conduct); 6th Cir. Pattern Jury Instr. 8.08 (“[W]hether anyone else should be prosecuted and convicted for this crime is not a proper matter for you to consider . . . Do not let the possible guilt of others influence your decision in any way.). To this extent, the Court agrees and grants the Government's unopposed requests. Counsel should seek leave before treading into a proscribed area.

         Stamper does, however, partially challenge DE #42 in two respects. First, she opposes the United States's effort to exclude any Defendant hearsay statement.[11] DE #42 at 2 (¶ 2). Though Rule 801(d)(2) provides that an opponent's statement is not hearsay, the Rule does not exempt a Defendant's own out-of-court statement (if offered for its truth) from the hearsay bar. See also Fed. R. Evid. 802 (barring hearsay generally unless otherwise permitted by the Rules, etc.). Still, as Stamper notes and the Government agrees, hearsay statements may be admissible, in some contexts, if offered for a purpose other than to establish the truth of the asserted matter. Stamper also argues various exceptions under Rule 803. The parties thus debate the relative likelihood of admissibility under multiple Rule provisions, as generally related to categories of potentially introduced statements. Compare DE #47 at 2-4 with DE #49 at 2-3.

         As the Government recognizes, without context or specific testimony/statements before it, the Court has insufficient information to conclusively resolve the raised hearsay questions. See DE #49 at 3 (“Ultimately, the United States understands that the Court will have to rule on some of these matters at trial with the opportunity to review this potential evidence in context.”). Thus, the Court grants in part the DE #42 ¶ 2 exclusion request, to the extent it simply seeks adhesion to the hearsay Rules, but defers ruling on any non-hearsay theories or specific exceptions (such as those Stamper suggests in DE #47, inter alia) and ultimate proof admissibility until trial, where the Court can evaluate particular statements within the holistic evidentiary scheme.

         Second, Stamper (briefly) opposes the United States's sought exclusion of prior good acts evidence. See DE #47 at 5; DE #42 at 6-8 (¶ 10). Stamper admits that proof of previous good acts would generally be inadmissible but asserts that “Defendants maintain the right to rebut the accusations against them with respect to the patients listed in the indictment by offering proof of legitimate medical practices for those patients.” DE #47 at 5. “Rule 404(b) precludes the use of prior acts evidence to prove a person's character, but it allows such evidence for other purposes, such as proving intent.” United States v. Dimora, 750 F.3d 619, 630 (6th Cir. 2014) (internal quotation marks omitted); id. (“For the same reason that prior ‘bad acts' may not be used to show a predisposition to commit crimes, prior ‘good acts' generally may not be used to ...

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