United States District Court, D. Massachusetts
TALWANI UNITED STATES DISTRICT JUDGE
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.
AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS
CORPUS PURSUANT TO 28 U.S.C. § 2254 (Dkt. No.
L. CABELL, U.S.M.J.
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
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. 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.
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:
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. 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 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).