NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUI T

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 an d 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, CLE RK U.S. COURT OF APPEALS2

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
prescri ption 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 cross

examine Lague about the uncharged overdose deaths of three of his former patients.

T he government properly int r oduced the overdose d eaths for a non

- character

purpose : Lague’s knowledge and intent

. See Fed. R. Evid. 404(b)(2).

Because t he 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 t he evidence ’s relevance outweighed by the danger of unfair prejudice under

Federal Rule of Evidence 403 . T he evidence
, introduced on the government’s cross

examination 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 t o the jury t o consider the over dose

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

- wide prescription data in a concurren tly

- 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 a dmit 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 w ere

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 convin ce the

clinic to stop prescri b ing 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). A ny prejudicial effect of the statements was minor because they

were directed a t 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, t he errors were harmless. Based on the overwhelming patient

specific 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

.