UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA

v. IVAN L. ROBINSON , Defendant Criminal Action No. 16-98 (CKK)

MEMORANDUM OPINION AND ORDER ( June 28 , 2017) In this criminal action, Defendant Ivan L. Robinson is charged with 61 counts of knowingly and intentionally distributing a controlled substance, oxycodone, by writing prescriptions for that drug outsid e the usual course of professional practice and not for a legitimate medical purpose, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C), as well as 18 U.S.C. § 2. Defendant is also charged with two counts of money laundering and aiding and abetting. No w before the Court are numerous motions in limine addressing a wide range of evidentiary issues. In Defendant’s [ 72] Motion in Limine No. 7 to Exclude All Testimony About the Alleged Reputation of Ivan Robinson and His Practice , Defendant moves the Court under Federal Rules of Evidence 401, 403, 404, 801 and 802 to exclude evidence concerning the alleged reputation of Defendant and his practice as a place where prescriptions for opioids could be easily obtained

. Upon considerat ion of the pleadings, 1 the relevant legal authorities, and the record as a whole, the Court will GRANT

- IN

- PART and DENY

- IN

- PART Defendant’s seventh motion in limine

.

1 The Court’s consideration has focu sed on the following documents: Defendant’s Motion in Limine No. 7 to Exclude All Testimony About the Alleged R eputation of Ivan Robinson and H is Practice, ECF No. 71 (“Def.’s Mot.”); Government’s Consolidated Reply in Opposition to Defendant’s Motion s in Limine Nos. 5, 6, and 7, ECF No. 86 (“Gov

. ’s Opp’n ”); Reply in Support of Defendant’s Motion s in Limine No s. 5, 6, 7, 9 and 11, ECF No. 104 (“ Def.’s Reply ” ).2 I. DISCUSSION Defendant moves to preclude the government from eliciting testimony about the alleged reputation of Defendant’s practice as “a place where prescriptions for opioids could be easily obtained.” Def.’s Mot. at 1. Defendant argues that this testimony would be hearsay and also should be exclude d under Rules 401, 403 or 404. In response, t he government has clarified that it will not elicit testimony from Defendant’ s patients as to their “opinion” about Defendant’s practice, but does intend to elicit testimony from these witnesses about their own personal
motivations for going to that practice. Specifically, the government represents that patient

witnesses will be asked why they chose to go to the Defendant, as opposed to other h ealth care professionals , and these witnesses are expected to respond that they did so because they kne w Defendan t would easily give them opioid prescriptions

. Gov.’s Opp’n at 7

- 8. The Court begins with Defendant’s hearsay objection. A ssuming that the patients’ understanding about Defendant’s practice was based on statements made to them by non

testifyi ng declarants (and not the Defendant himself), and that their testimony is offered for the truth of the matter asserted

— i.e. , that Defendant in fact easily gave opioid prescriptions

— the Court agrees that the government’s proffered testimony woul d be inadmissible hearsay. Fed. R. Evid. 801(c). However , the government represents in its opposition that it does not intend to elicit this testimony for the truth of the matter asserted, but instead merely to demonstrate the motivation of Defendant’s p atients

— i.e. , that a particular patient

- witness decided to go to the Defendant not to seek out genuine medical treatment but instead merely because he or she wanted drugs and believed Defendant would give them those drugs eas ily. This motivation purpose i s distinct from the truth of the matter asserted in the witnesses’ proposed statement s:3 the witnesses’ understanding about Defendant’s practice could have actually been false, and yet this could have still been their motivation. Accordingly, to the exten t offered for the purpose described in the government’s opposition, this testimony would survive the rule against hearsay

. It is also not character evidence barred by Rule 404, because the testimony is being used to establish the patients’ motive, not to prove Defendant’s character in order to show that he acted in accordance with that character. Nonetheless, d espite the fact that the government has established a non

- hearsay or character

- evidence purpose for this testimony, it is still potentially subject to exclusion under Rules 401 and 403. T he government has not articulated a ny reason why a patient’s motivation , to the extent it was not known to the Defendant, is relevant to any issue in this case . Moreover,

e ven if marginally relevant, the Co urt concludes that the hidden motivations of Defendant’s patients would be s ubject to exclusion under Rule 403 . Under Rule 403, “[t]he court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Here, exercising its discretion, the Court concludes that this evidence should be excluded because its proba tive value would be substantially outweighed by the considerable risk that the jury would misuse this testimony for the truth of the matter asserted in the witnesses ’ statements

— effectively that Defendant was operating a “pill mill” —a nd find the Defendant guilty on the basis of out -of- court statements by individuals Defendant is unable to cross examine

. However, this ruling under Rules 401 and 403 has two important caveats . First, to the
extent Defendant knew of the patients’ motivation before he issued them a prescription, the4 Court finds that testimony about that motivation would be significantly relevant and pr obative. If Defendant knew that a patient had decided to visit his practice merely because he wanted an easy prescription and thought Defendant would give him one, and Defendant nonetheless went forward and issued the patient a prescription, the Court finds that testimony about that patient’s motivation would be quite probative of whether Defendant was issuing prescriptions outside the usual course of professional practice. Second, t he Court notes that its ruling pertains only to the government’s case in chief. If the Defendant were himself to open the door in some way that wou ld make the non

- hearsay
purpose for the proffered patient testimony relevant

— such as presenting evidence or argument that Defendant’s patients chose to visit his practice for other reasons

— the testimony may become admissible. Under these circumstances, the probative value of testimony that the patients in fact had other motivations would become significantly probative. See United States v. Johnson , 730 F.2d 683, 691 (11th Cir. 1984) (holding that trial court properly ruled that “once defense counsel ‘ opened the door ’ on cross

- examination,” evidence’s “probative value was enhanced such that it outweighed its prejudicial effect. ”)

. If the government contends that this has occurred, it must come to the Court in advance of presenting this evidence and request
p ermission. Finally, the Court notes that in its opposition, the government describes certain testimony it seeks to elicit that is not hearsay and that is not otherwise subject to exclusion. First, the government represents that witnesses will testify abo ut certain things Defendant told them

— e.g. , that they should procure a money order before coming to his practice , and that he would not accept insurance. Gov.’s Opp’n at 8. S uch s tatements of the De fendant are relevant, not5 subj ect to exclusion under Rul e 403, and not hearsay. Second, the government represents that witnesses will testify as to where they live d and, accordingly, how far they travelled to see the Defendant. The Court cannot say at this preliminary stage that this information has no releva nce at al l to any issue in this case , and asking a witness where he or she came from to visit the Defendant presents absolutely no risk of unfair prejudice . The Court will not exclude such testimony.
I I. CONCLUSION AND ORDER For the foregoing reasons, the Court GRANTS

- IN

- PART and DENIES

- IN

- PART Defendant’s [ 72 ] Motion in Limine No. 7 to Exclude All Testimony About the Alleged Reputation of Ivan Robinson and His Practice . Accordingly, i t is, this 28 th day of June, 2017, hereby ORDERED that to the extent the government seeks to elicit testimony about Defendant’s patients’ motivation for visiting Defendant’s practice, it must do so in accordance with this Memorandum Opinion and Order . The Court’s rulings are based only on the present record. SO ORDERED.
/s COLLEEN KOLLAR
- KOTELLY United States District Judge