Background
Dr. Barnett K. Fung, an Illinois podiatrist authorized to prescribe controlled substances, was charged with 74 violations of 21 U.S.C. § 841(a), each based on an opioid prescription. A jury acquitted him on 73 counts but convicted him on Count Seven, which concerned a prescription issued to undercover DEA agent Emilia Fernandez, posing as Emilia Figueroa.
Fernandez repeatedly told Fung that she had no pain, only discomfort from standing while waitressing. Without taking vital signs or a medical history, examining her foot, making a diagnosis, developing a treatment plan, or documenting the visit, Fung prescribed 90 hydrocodone-acetaminophen pills. The district court sentenced him to six months in prison, three years of supervised release, and a $50,000 fine.
Fung appealed, challenging the admission of pharmacist Thinh Nguyen’s testimony, the denial of a mistrial after an expert referred to another patient’s addiction, the sufficiency of the evidence, and the procedure used to impose the fine.
The Court’s Holding
The Seventh Circuit affirmed. It held that Nguyen properly testified as a lay witness because he described his personal observations, his communications with Fung, and the pharmacy’s decision to stop filling Fung’s prescriptions without offering a professional opinion about the medical standard of care. The testimony was also probative of Fung’s knowledge, and its value was not substantially outweighed by unfair prejudice.
The court also upheld the denial of a mistrial. The expert’s statement that another patient was addicted to her medication was inadvertent, isolated, and ambiguous; it did not suggest Fung knew about or caused that addiction. The jury acquitted Fung on every count involving that patient, further undermining any claim of prejudice.
Substantial evidence supported the conviction because the recorded visit, Fung’s failure to conduct even a basic evaluation, and the expert testimony permitted a rational jury to find that he knowingly prescribed the opioid without a legitimate medical purpose and outside the usual course of professional practice. The $50,000 fine was procedurally sound because the district court adopted financial findings showing Fung could pay, heard argument, and considered the offense’s seriousness, deterrence, collateral consequences, Fung’s history, and other relevant factors.
Key Takeaways
- A professionally qualified witness may give lay testimony when describing personal observations and communications without relying on specialized knowledge or offering expert conclusions.
- An isolated, ambiguous trial statement does not require a mistrial absent a real likelihood that it prevented the jury from evaluating the evidence fairly.
- Evidence that a physician prescribed opioids to a person reporting no pain, without an examination, diagnosis, treatment plan, or documentation, can support a finding that the physician knowingly acted without authorization.
- A sentencing court need not make express findings on every fine-related factor when the record and adopted presentence-report findings adequately support the fine.
Why It Matters
The decision illustrates the evidence that can establish the subjective knowledge required by Ruan v. United States in a controlled-substance prosecution of a medical professional. The stark circumstances of a particular prescription may support conviction even when a jury rejects charges involving the defendant’s other patients.
The opinion also clarifies the boundary between lay and expert testimony for medical or pharmacy professionals and confirms that adopting detailed financial findings in a presentence report can help support a within-guidelines fine.