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Brown v. Lucey

United States District Court, D. Massachusetts

September 14, 2017

BRENDAN M. LUCEY, Defendant.



         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.

         August 28, 2017


          DONALD L. CABELL, U.S.M.J.


         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.


         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 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).

         III. PRIO ...

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