NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

DAVID LAGUE, 

Defendant-Appellant.

No. 18-10500 

D.C. No. 

4:17-cr-00150-HSG-1 

MEMORANDUM*

Appeal from the United States District Court

for the Northern District of California

Haywood S. Gilliam, Jr., District Judge, Presiding

Argued and Submitted May 12, 2020

San Francisco, California

Before: WALLACE and R. NELSON, Circuit Judges, and GWIN,** District 

Judge.

Defendant-Appellant, David Lague, appeals from his judgment of conviction 

after a jury found him guilty of thirty-nine counts of prescribing controlled 

substances outside the course of professional practice and without a legitimate 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable James S. Gwin, United States District Judge for the 

Northern District of Ohio, sitting by designation.

FILED

AUG 20 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

medical purpose to five of his former patients. We affirm.1

The district court did not plainly err in allowing the government to admit the

prescription data of Lague’s expert, Dr. Gary Martinovsky. Given the overwhelming 

evidence of guilt admitted at trial, the complained-of prescription data did not 

seriously affect the fairness, integrity, or public reputation of the trial. See United 

States v. Buckland, 289 F.3d 558, 572 (9th Cir. 2002). 

The district court did not plainly err in allowing the government to crossexamine Lague about the uncharged overdose deaths of three of his former patients. 

The government properly introduced the overdose deaths for a non-character 

purpose: Lague’s knowledge and intent. See Fed. R. Evid. 404(b)(2). 

Because the evidence tended to show that Lague knew that similar 

prescriptions could lead to death, it was likewise relevant under Federal Rule of 

Evidence 401. See United States v. Dorsey, 677 F.3d 944, 952 (9th Cir. 2012). Nor 

was the evidence’s relevance outweighed by the danger of unfair prejudice under 

Federal Rule of Evidence 403. The evidence, introduced on the government’s crossexamination of Lague, comprised only a small amount of Lague’s overall testimony 

and a small portion of the trial. Indeed, “[a]ny resultant prejudice was minimized 

by the limiting instruction” the district court read to the jury to consider the overdose

1 We resolve Lague’s arguments on the admissibility of his practice-wide 

prescription data in a concurrently-filed opinion. 
3 

evidence only for a valid Rule 404(b) purpose. United States v. Mende, 43 F.3d 

1298, 1302 (9th Cir. 1995). 

The district court did not plainly err in allowing the government to admit the 

out-of-court statements about the clinic’s reputation.2 SL and JC were Lague’s 

former patients; their testimonies on how they first learned about the clinic were

therefore relevant background information. See Hakopian v. Mukasey, 551 F.3d 

843, 847 n.4 (9th Cir. 2008). CL’s testimony about his attempts to convince the 

clinic to stop prescribing opioids to his son was also relevant because Lague was 

charged with prescribing controlled substances to CL’s son, DL, outside the usual 

course of professional practice. See United States v. Feingold, 454 F.3d 1001, 1008 

(9th Cir. 2006). Any prejudicial effect of the statements was minor because they 

were directed at the clinic more generally and made up only a few sentences during 

Lague’s nearly two-week trial. 

Finally, the government’s purported evidentiary errors considered 

cumulatively do not compel reversal of Lague’s conviction because, even assuming 

cumulative error, the errors were harmless. Based on the overwhelming patientspecific evidence of guilt against Lague, the evidentiary errors did not materially 

affect the verdict. See United States v. Beckman, 298 F.3d 788, 793 (9th Cir. 2002).

2 We review Lague’s arguments based on Rule 401 and Rule 403, raised for the first 

time on appeal, for plain error. See United States v. Gomez-Norena, 908 F.2d 497, 

500 (9th Cir. 1990). 
4 

AFFIRMED.