Brown v. Lucey

• Decision Date: 28 August 2017
• Docket Number: No. 14-CV-13683-IT,14-CV-13683-IT
• Parties: MICHAEL RONALD BROWN, Petitioner, v. BRENDAN M. LUCEY, Respondent.
• Court: U.S. District Court — District of Massachusetts

MICHAEL RONALD BROWN, Petitioner,
v.
BRENDAN M. LUCEY, Respondent.

No. 14-CV-13683-IT

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

August 28, 2017

MICHAEL RONALD BROWN, Plaintiff,

v.

BRENDAN M. LUCEY, Defendant.

Civil Action No. 14-cv-13683-IT

ORDER

September 14, 2017

TALWANI, D.J.

After considering the Magistrate Judge's August 28, 2017 Report and Recommendation [#31], and noting that there has been no objection, the court hereby ACCEPTS and ADOPTS the Report and Recommendation [#31] for the reasons set forth therein. Petitioner Michael Ronald Brown's Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus [#1] is DENIED.

IT IS SO ORDERED.

/s/ Indira Talwani
United States District Judge

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REPORT AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2254 (Dkt. No. 1)

Cabell, U.S.M.J.

I. INTRODUCTION

Michael Ronald Brown (Brown or "the petitioner"), proceeding pro se, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 challenging his conviction for unlawfully distributing controlled substances. He advances several arguments in support of his petition but his principal claim is that the Massachusetts Supreme Judicial Court (SJC) violated the double jeopardy clause when it affirmed his conviction for a charge Brown contends he was acquitted of by the trial judge. After careful consideration of the record in this case, and for the reasons set forth below, the court finds that the petitioner is not entitled to the relief requested and recommends that the petition be DENIED.

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II. RELEVANT FACTS

Brown, a physician, was indicted in Massachusetts Superior Court on multiple charges of violating M.G.L. c. 94C, §§ 32A(a) and 32B(a), for illegally "distributing or dispensing" Class B and Class C controlled substances.¹ In particular, Brown allegedly prescribed pain-relieving opiates to seven patients for illicit purposes. He was tried before a jury on all but two indictments, which were tried subsequently at a jury-waived trial. Both trials involved charges that Brown violated M.G.L. c. 94C, §§ 32A(a) and 32B(a) by "distributing or dispensing" controlled substances, and Brown was convicted after each trial.

For present purposes, the principal issue arising from Brown's jury trial revolved around the instructions to the jury on the "distributing or dispensing" charges. The material facts regarding both trials, summarized by the SJC, are as follows:²

a. Jury trial. The jury trial centered on prescriptions for pain-relieving opiates, all class B controlled substances, G.L. c. 94C, § 31, written by the defendant for seven patients. Admitted in evidence at the trial was a statement the defendant had made to members of the Attorney General's Medicaid fraud control unit during the investigation, to the effect that he followed a responsible standard of care with regard to patients receiving such prescriptions. He explained

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that his practice was to test his patients for indications of illegal substance abuse, and that he would intervene or cease prescribing pain-relieving opiates when those tests returned positive for illegal drugs. However, in the cases of the seven patients at issue, the evidence was that the defendant did not heed his own standards and continued to prescribe opiates to the patients —sometimes in increasing dosages— despite laboratory results revealing them to be illegal drug users. Those same laboratory results also revealed that the patients were not taking the opiates prescribed to them by the defendant. Yet, the defendant continued to issue new prescriptions to them. Based on this evidence, the Commonwealth produced an expert who testified that the prescriptions written by the defendant for these patients were not issued in good faith and served no legitimate medical purpose.

As noted, the indictments against the defendant that were at issue in the jury trial charged him with "distribut[ing] or dispens[ing]" controlled substances in violation of the drug statutes. The terms "[d]istribute" and "[d]ispense" have distinct meanings defined in G.L. c. 94C, § 1, and the defendant argued at trial that his conduct could only qualify, if at all, as one or the other, but not both. The Commonwealth agreed and proceeded on the theory that the defendant had "dispensed" controlled substances within the meaning of the drug statutes... As a result, the judge instructed the jury that they had to find beyond a reasonable doubt that the defendant "dispensed" each of the controlled substances.

In turn, the defendant contended that he could not be guilty of dispensing controlled substances unless the persons to whom they were delivered were lawfully in possession of them, pointing to the statutory definition of "dispense" and "ultimate user." Because the evidence was notably to the contrary, the defendant made a motion for directed verdicts, which was denied, and a motion for a jury instruction to the same effect, which was also denied.

b. Jury-waived trial. At the jury-waived trial on the indictment charging distributing or dispensing a class C controlled substance in violation of § 32B(a), the defendant stipulated to evidence sufficient to find

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him guilty of the charge, admitting that he prescribed opiates to a patient pursuant to an agreement under which the patient would fill the prescription and give some of the medication back to the defendant, and that the prescription was not written for a legitimate medical purpose....

Neither the parties nor the judge addressed the fact that the indictment charged the defendant with "distribut[ing] or dispens[ing]." In finding the defendant guilty, the judge stated simply that the defendant had violated G.L. c. 94C, § 32B(a), without reference to which of the two forms of conduct the defendant had engaged in, and the defendant made no claim as to the adequacy of the evidence to support a conviction under either alternative.

Commonwealth v. Brown, 456 Mass. 708, 710-711 (2010) (internal footnotes omitted) (Brown I).

III. PRIOR PROCEEDINGS

Brown applied for direct appellate review to the SJC, raising among other things the issue of whether he could be convicted of dispensing a controlled substance when the ultimate user of that substance was an unlawful possessor.³ The SJC denied the application on November 29, 2007. (S.A. 118).

Brown then appealed to the Massachusetts Appeals Court. The Appeals Court affirmed the trial court's rulings (with one judge dissenting on the issue), holding that dispensing a controlled substance did not require the ultimate users to be lawful

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possessors of the substances. Commonwealth v. Brown, 74 Mass. App. Ct. 75, 83-84 (Mass. App. Ct. 2009).

On July 17, 2009, the SJC granted Brown's request for further appellate review. (S.A. 14). On May 11, 2010, the SJC affirmed Brown's convictions after engaging in a detailed analysis of M.G.L. c. 94C and its various sections. Commonwealth v. Brown, 456 Mass. 708 (2010). The SJC concluded among other things that a physician who engages in the conduct Brown engaged in may be prosecuted for either issuing an invalid prescription, in violation of section 19, or for unlawful distribution, in violation of sections 32-32H. Brown, 456 Mass. at 724-725. Here, because the indictment charged Brown with violating section 32 rather than section 19, the indictment, properly understood, alleged unlawful distribution.

Consequently, as the SJC noted, the trial court's jury instruction, although articulated as one for unlawful dispensing, in reality recited the elements for unlawful distribution. Id. at 725-726. The SJC found this revelation to be of no legal consequence, however. The SJC reasoned that Brown was not prejudiced in any way because the jury instruction the court gave matched the elements of the statute and it therefore made no difference to the jury "which verb in the indictment their attention was drawn. Considering only the elements necessary for the crime of unlawful distribution, they convicted the defendant." Id. at 726. As to the conviction on the indictment

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charging "distribute or dispense" rendered in the jury-waived trial, the SJC found no error and affirmed that conviction. Id. Brown filed a Petition for Rehearing to the SJC but the SJC denied it, on June 30, 2010.

On June 29, 2011, Brown filed his first habeas petition in this court. The petition set forth six separate grounds for relief, including among them the claims raised in the present petition, but the court dismissed it for failure to exhaust state court remedies. Id.

Consequently, on March 19, 2012, Brown moved in the superior court for release from unlawful restraint pursuant to Mass. R. Crim. P. 30(a). (S.A. 39). On March 21, 2012, the superior court denied the motion without a hearing. (Id.). Brown appealed to the Appeals Court and the appeal was subsequently transferred from the Appeals Court to the SJC sua sponte, on April 26, 2012. (S.A. 57-58). On September 25, 2013, the SJC affirmed the order denying the petitioner's Rule 30 motion, and found that its prior decision in Brown I did not violate the petitioner's constitutional rights. Commonwealth v. Brown, 466 Mass. 1007, 1010 (2013) (Brown II).

IV. THE PETITIONER'S HABEAS CLAIMS

On September 22, 2014, the petitioner filed the instant petition, presenting the following four issues, framed as questions:

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1. When a judge instructs a jury that the charge of Distribution is surplusage, and is of no concern to your deliberation, with explicit approval of the Prosecution, does this amount to an acquittal of the charge of Distribution, after the jury reaches a verdict on the alternative charge Dispensing, and is discharge [sic] from their duty?

Re-paraphrasing, the Court reads this question to contend that the trial court acquitted the petitioner of the charge of unlawful distribution, and the SJC therefore violated the Fifth Amendment's double jeopardy clause when it subsequently affirmed the...