Commonwealth v. Michael R. Brown, May 11, 2010
456 Mass. 708
The defendant was a physician who was indicted on multiple charges of illegally distributing or dispensing controlled substances, submitting false medical claims, larceny, and possession of a controlled substance. The defendant stated that his practice was to screen his patients to determine if they were abusing the controlled substances he was prescribing them, and if they were he would stop the prescriptions. Evidence at trial showed that at least seven patients under the defendant’s treatment were shown though medical testing to be abusing the substances, and instead of stopping their prescriptions the defendant wrote more. Furthermore the defendant engaged in a transaction with a patient whereby he wrote a prescription for a large amount of pills to the patient and agreed with the patient that he would take back 75 of the pills after the patient filled the prescription. It is out of this transaction that the defendant raises their first point of contention.
Suppression of Audio-Video Recording
The defendant claims that video evidence showing him buying the pills back from a witness should have been excluded from evidence because it was obtained without his knowledge or consent in violation of G.L. c. 272 §99, the Massachusetts wiretap statute. He argued that although the DEA was involved in the investigation, that it was mostly a state-run investigation, and secondarily if the court found it to be federal controlled he urged the adoption of New Mexico’s rulings on the area that would exclude evidence obtained in violation of a state law.
456 Mass. 708
The defendant was a physician who was indicted on multiple charges of illegally distributing or dispensing controlled substances, submitting false medical claims, larceny, and possession of a controlled substance. The defendant stated that his practice was to screen his patients to determine if they were abusing the controlled substances he was prescribing them, and if they were he would stop the prescriptions. Evidence at trial showed that at least seven patients under the defendant’s treatment were shown though medical testing to be abusing the substances, and instead of stopping their prescriptions the defendant wrote more. Furthermore the defendant engaged in a transaction with a patient whereby he wrote a prescription for a large amount of pills to the patient and agreed with the patient that he would take back 75 of the pills after the patient filled the prescription. It is out of this transaction that the defendant raises their first point of contention.
Suppression of Audio-Video Recording
The defendant claims that video evidence showing him buying the pills back from a witness should have been excluded from evidence because it was obtained without his knowledge or consent in violation of G.L. c. 272 §99, the Massachusetts wiretap statute. He argued that although the DEA was involved in the investigation, that it was mostly a state-run investigation, and secondarily if the court found it to be federal controlled he urged the adoption of New Mexico’s rulings on the area that would exclude evidence obtained in violation of a state law.
The SJC first ruled that because the DEA was the controlling agency in the investigation, that it was their surveillance equipment, and because the defendant was originally facing federal prosecution, that the case was sufficiently federally-run throughout and thus any recordings made with the consent of the witness in whose home the taping took place did not need the consent of all other parties to be admissible. The court then went on to say that they are not inclined to overrule their cases in this area, and that evidence gathered in investigations of a federal nature would not be subject to the limitations of §99 or art. 14 of the Massachusetts Declaration of Rights.
Distribute versus Dispense
The SJC next addressed the defendant’s claim that his conviction was invalid because despite the guilty verdict and finding, he could not be guilty as a matter of law because “dispensing” required that the controlled substance end up with an “ultimate user” in “lawful possession” of the substance. The defendant claimed that if the state had shown that his prescriptions were not valid prescriptions made in the course of the professional practice of the practitioner, then the patient would not be an ultimate user because their possession gained from the invalid prescriptions was illegal.
The SJC agreed as to the defendant’s interpretation of the statutory language but not as to what the consequences should be in this case. The court reasoned that when a physician decides to issue invalid prescriptions in bad faith he becomes more like a “pusher” and is now engaging in the distribution of a controlled substance. The SJC went on to say that the Commonwealth could have prosecuted the defendant under G.L. c. 94C §19, or alternatively under the Massachusetts Controlled Substances Act. However, if the Commonwealth elects to pursue charges under the drug statutes in a case like this, the charge should be “distributing” and not “dispensing”.
The SJC disagreed with the defendant’s contention that he should be awarded a new trial, finding that in light of all the evidence and the fact that the jury instructions on the elements of unlawful dispensing of a controlled substance match the elements of unlawful distribution the judgment was not substantially swayed by the error. The SJC affirmed all judgments.
