Commonwealth v. Brown

Citation925 N.E.2d 845,456 Mass. 708
Decision Date11 May 2010
Docket NumberSJC-10521
PartiesCOMMONWEALTHv.Michael R. BROWN.
CourtUnited States State Supreme Judicial Court of Massachusetts

COPYRIGHT MATERIAL OMITTED

Russell J. Redgate, West Barnstable, for the defendant.

James J. Arguin, Assistant Attorney General (Steven L. Hoffman, Assistant Attorney General, with him) for the Commonwealth.

Present: MARSHALL, C.J., IRELAND, SPINA, COWIN, CORDY, BOTSFORD, & GANTS, JJ.

CORDY, J.

Michael R. Brown, a physician, was indicted on multiple charges of illegally distributing or dispensing controlled substances in violation of G.L. c. 94C, §§ 32A ( a ) (class B substance) and 32B ( a ) (class C substance); submitting false medical claims in violation of G.L. c. 118E, § 40(2); larceny of an amount in excess of $250 in violation of G.L. c. 266, § 30(1); and possession of a controlled substance in violation of G.L. c. 94C, § 34. The indictments charging the defendant with submitting false medical claims and larceny, along with the indictments charging violations of § 32A ( a ), were tried to a jury; at trial, the Commonwealth elected to proceed on the theory that the defendant had unlawfully “dispensed” rather than “distributed” a class B controlled substance under § 32A ( a ). The indictment charging a violation of § 32B ( a ) was the subject of a jury-waived trial, at which no such election was made. The defendant was convicted at both trials. The cases were consolidated on appeal, and were affirmed by a divided panel of the Appeals Court. Commonwealth v. Brown, 74 Mass.App.Ct. 75, 85, 904 N.E.2d 452 (2009).

We granted the defendant's application for further appellate review of his convictions of unlawfully distributing or dispensing controlled substances 1 principally to consider two questions. The first is whether an audio-video tape recording of the defendant's conversation in the home of a cooperating witness was properly admitted in evidence at the jury-waived trial, where it was the product of a Federal investigation in which Massachusetts law enforcement personnel participated. We conclude that it was. The second question is whether a physician “dispenses” rather than “distributes” a controlled substance within the meaning of G.L. c. 94C, §§ 32A ( a ) or 32B ( a ) (drug statutes), when it is delivered pursuant to what purports to be a prescription to a person who does not “lawfully” possess it. For the reasons outlined below, we conclude that a physician who issues an invalid prescription to a person seeking a controlled substance for illicit purposes has unlawfully distributed rather than dispensed the substance.

1. Background. The material facts are not in dispute.

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 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.2 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.” 3 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 him guilty of the charge,4 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.

The only contested issue at the trial was the admissibility of an audio-video tape recording of a conversation between the defendant and a patient. The patient had given her consent to law enforcement officials to place the recording equipment in her home in anticipation of the defendant arriving there to retrieve his share of the prescription pursuant to his agreement with the patient. The officials then recorded the defendant taking possession of eighty-seven tablets of a class C controlled substance.

Prior to trial, the defendant sought to suppress the recording as unlawfully obtained under the Massachusetts wiretap statute, G.L. c. 272, § 99 (§ 99), which generally prohibits the warrantless “secret transmission or recording of oral communications without the consent of all parties,” Commonwealth v. Blood, 400 Mass. 61, 66, 507 N.E.2d 1029 (1987),5 and provides for the suppression of the contents of communications recorded in violation of its terms. G.L. c. 272, § 99 P. The statute exempts from its prohibition recordings made by Federal law enforcement officers acting pursuant to their Federal authority. G.L. c. 272, § 99 D 1 c.6 The motion judge found that the exemption applied because the investigation was “federally run from start to finish,” citing Commonwealth v. Gonzalez, 426 Mass. 313, 315-318, 688 N.E.2d 455 (1997) ( Gonzalez ), even though local law enforcement played a role in it. Consequently, the recording was admitted in evidence at the jury-waived trial.

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.

2. The recording. The audio-video tape recording of the defendant was only offered, and admitted, in evidence at the jury-waived trial, and therefore, only the defendant's conviction of violating G.L. c. 94C, § 32B ( a ), is examined in our review of the recording's admissibility.

There are two components to the defendant's argument that his motion to suppress the recording should have been granted. First, he asserts that the recording was made in violation of § 99, because it was made pursuant to a “State-oriented investigation and a combined enterprise between State and Federal officials.” Gonzalez, supra at 316, 688 N.E.2d 455, discussing Commonwealth v. Jarabek, 384 Mass. 293, 297, 424 N.E.2d 491 (1981). As indicated earlier, the motion judge concluded otherwise, finding that the investigation was federally run and therefore the recording was exempted from suppression by § 99 D 1 c. The second component of the defendant's argument is that the recording violated art. 14 of the Massachusetts Declaration of Rights7 and thus should be suppressed. The latter argument is foreclosed by our decision in Gonzalez, supra at 317-318, 688 N.E.2d 455, which held that art. 14 does not constrain Federal authorities unless they operate as part of an “essentially” State investigation. Thus, the defendant asks us to overturn Gonzalez in favor of expanding our decision in Commonwealth v. Blood, supra at 77, 507 N.E.2d 1029 (evidence gathered by State law enforcement through warrantless wiretap in private home violated art. 14, requiring suppression), to include Federal authorities within the scope of art. 14.

The motion judge made extensive findings regarding the history and nature of the investigation. In 2004, the Federal Drug Enforcement Administration (DEA) began investigating the defendant's prescribing practices. A DEA special agent, Edward Harrington, conducted the investigation through a DEA-sponsored Cape Cod task force, a joint Federal and local law enforcement operation headed by Harrington. The task force included members of local law enforcement who were deputized as special DEA agents. One local law enforcement officer, Dan Turner, was not deputized by the DEA, but he assisted in the investigation as well. Through Officer Turner, the task force convinced one of the defendant's...

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