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United States v. Davis

United States Court of Appeals, Eighth Circuit

June 14, 2017

United States of America Plaintiff- Appellee
Lisa Ann Davis Defendant-Appellant

          Submitted: May 9, 2017

         Appeal from United States District Court for the Northern District of Iowa - Cedar Rapids

          Before RILEY and BEAM, Circuit Judges, and ROSSITER, [1] District Judge.

          ROSSITER, District Judge.

         A jury found Lisa Ann Davis ("Davis") guilty of three crimes related to the manufacture of methamphetamine. Davis appeals her convictions, arguing the district court[2] 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 affirm.

         I. BACKGROUND

         On 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).

         After 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.

         Shortly 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.

         On 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.

         Davis 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.

         On November 16, 2015, Jody pled guilty to Count 2 pursuant to a plea agreement. Davis proceeded to trial the next day.

         After 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 case."

         Having 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 ...

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