Submitted: May 9, 2017
from United States District Court for the Northern District
of Iowa - Cedar Rapids
RILEY and BEAM, Circuit Judges, and ROSSITER,  District
ROSSITER, District Judge.
found Lisa Ann Davis ("Davis") guilty of three
crimes related to the manufacture of methamphetamine. Davis
appeals her convictions, arguing the district
court denied her right to a fair trial by
refusing to allow her to present evidence that her doctor
prescribed pseudoephedrine to her after she was indicted.
Finding jurisdiction exists under 28 U.S.C. § 1291, we
October 27, 2015, a federal grand jury charged Davis and her
husband, Jody Davis ("Jody"), in a three-count
Superseding Indictment. Count 1 alleged that between
approximately August 2, 2010, and June 20, 2015, Davis, Jody,
and others conspired to manufacture methamphetamine, in
violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C),
and 846. Count 2 alleged Davis and Jody attempted to
manufacture methamphetamine, and aided and abetted the
attempted manufacture of methamphetamine, in violation of 18
U.S.C. § 2 and 21 U.S.C. §§ 841(a), (b)(1)(C),
and 846. Count 3 charged Davis with possessing
pseudoephedrine with intent to manufacture methamphetamine,
in violation of 21 U.S.C. § 841(c)(1)-(2).
Davis entered her initial appearance in the case, she and the
government agreed, pursuant to a Stipulated Discovery Order,
to provide reciprocal discovery under Federal Rules of
Criminal Procedure 16(b) and 26.2. The order required the
parties to disclose any experts and provide a written summary
of any expert opinions. Neither party designated an expert in
accordance with that order.
before trial, Davis notified the government she intended to
call her pulmonologist, Dr. Donald Paynter ("Dr.
Paynter"), as a witness. Davis also provided the
government with some medical records she had recently
obtained. The records disclosed that Dr. Paynter first
prescribed pseudoephedrine for Davis on October 28,
2015-several months after Davis was originally indicted, and
just three weeks prior to trial.
November 12, 2015, the district court held a pretrial
conference at which the government argued (1) Davis's
post-indictment prescription was irrelevant because it was
given outside the period of the charged conspiracy and (2)
Dr. Paynter should not be allowed to give expert testimony
because Davis did not disclose him or provide the required
expert report. The government did not otherwise object to Dr.
Paynter testifying as a fact witness for the defense.
responded that Dr. Paynter would testify about her chronic
obstructive pulmonary disease ("COPD") and that she
was taking pseudoephedrine "to help her breathe."
The district court noted the "substantial"
relevance issue presented by the timing of the prescription
but reserved ruling on the issue until the challenged
evidence could be presented in context.
November 16, 2015, Jody pled guilty to Count 2 pursuant to a
plea agreement. Davis proceeded to trial the next day.
jury selection, the district court heard additional argument
about Davis's post-indictment prescription and Dr.
Paynter's expected testimony. Davis's counsel
explained he expected Dr. Paynter to testify he prescribed
pseudoephedrine to Davis because (1) "Davis was
receiving the heat from law enforcement" and (2) it
helped with her COPD. The government again objected to Dr.
Paynter giving any expert testimony because the government
had not received notice and had no chance to hire its own
expert. With respect to any fact testimony from Dr. Paynter,
the government again requested that the district court
"cut it off at the time of the indictment in this
heard the arguments, the district court ruled as follows:
The treatment of Lisa Davis by this doctor from whenever
until the date of these charges would be admissible, if
it's relevant, in terms of treatment protocol, what he
did, her diagnosis, and the like. The prescription that
he wrote recently is not admissible because it has no
relevance. If he starts getting into expert testimony as
opposed to just stating his treatment of Lisa Davis, his
diagnosis and the like, then it is objectionable and the
Court will not allow it in.
I can't rule in advance on those questions because the
way a question is phrased in the expert/nonexpert arena with
a physician can't be anticipated, but . . . he won't
be allowed to testify as an expert because he wasn't
listed as an expert, and the government has had no notice and
no opportunity to engage an expert to rebut his expert