United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 10, 2023 Decided June 2, 2023
No. 21-3039
UNITED STATES OF AMERICA,
APPELLEE
v.
IVAN LAMONT ROBINSON,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:16-cr-00098-1)
Michael Mestitz, appointed by the court, argued the cause
for appellant. With him on the briefs were Steven R. Kiersh
and Charles L. McCloud, appointed by the court.
Michael E. McGovern, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Chrisellen R.
Kolb, Suzanne Grealy Curt, and John P. Dominguez, Assistant
U.S. Attorneys.
2
Before: MILLETT and KATSAS, Circuit Judges, and
SENTELLE, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
SENTELLE.
SENTELLE, Senior Circuit Judge: Appellant Ivan
Robinson appeals his criminal convictions for forty-two counts
of prescribing a controlled substance without a legitimate
medical purpose under 21 U.S.C. § 841(a) and two counts of
money laundering under 18 U.S.C. § 1957. For the reasons set
forth herein, this Court reverses and remands the district court’s
judgment of conviction and sentencing.
I. Background
In 2013, Appellant Ivan Robinson practiced as a nurse
practitioner in Washington, D.C., specializing in back pain. In
his practice, Robinson treated patients with a three-part method
which he had designed. His proprietary method of treatment
involved a traction table he invented, various instructions on
supplements and hydration, and prescriptions for thirty
milligrams of oxycodone. He usually charged around $370 and
only accepted payment in cash or money orders. Eventually,
two local pharmacies notified law enforcement after they grew
suspicious of the number of young people with Robinson’s
oxycodone prescriptions and the uniform high dosage of thirty
milligrams. Concerned that Robinson might be illegally
prescribing oxycodone to addicted pill-seekers, the Drug
Enforcement Agency subsequently sent three undercover
agents to his practice in 2013. One agent complained of foot
pain. Robinson declined to treat her, saying his practice only
specialized in back pain. The other two agents, Adams and
Lee, claimed to be suffering from back pain, and Robinson
treated them. These agents’ testimony at trial about Robinson’s
3
examination and treatment of them underlies part of his appeal
to this Court. See infra Part II.3.
In 2016, a federal grand jury indicted Robinson on fifty-
five counts of prescribing a controlled substance without a
legitimate medical purpose under 21 U.S.C. § 841(a) and
allegations of forfeiture. United States v. Robinson, Crim. No.
16-98, 2020 WL 5569953, at *2 (D.D.C. Sept. 17, 2020). A
superseding indictment the following year increased the
prescription charges to sixty-one counts, of which the
government eventually dropped eighteen, and added two
counts of money laundering. Id.; see also A83–88. The
indictment listed eight real patients and the two undercover
agents to whom Robinson prescribed sixty, thirty-milligram
tablets of oxycodone each. See A83–88. The eight real patients
were later identified as actual pill-seekers addicted to
oxycodone.
Robinson was tried in 2017 before a jury in the United
States District Court for the District of Columbia. Robinson,
2020 WL 5569953, at *2. The government presented evidence
from several pharmacists who refused to refill Robinson’s
prescriptions due to their concerns that his patients were pill-
seeking. See, e.g., A1581:22, A1582:13–16 (testimony from
pharmacist DeLisa Winston stating that “one of the reasons that
[she] did reach out was because the patients were receiving the
exact same medications.”); see also A1595:1–5 (testimony
from pharmacist Vincent Ippolito that “[a]ll [of Robinson’s]
prescriptions were written for the same item: Oxycodone, 30
milligrams, quantity of 60. . . . Most of the patients seem[ed] to
be fairly healthy. They were young.”). The government also
elicited testimony from all three DEA agents involved in the
undercover operation at Robinson’s practice. See, e.g., A1876
(Adams), A2197 (Lee), A2468 (Gutierrez). Adams and Lee
testified that Robinson scarcely physically examined them and
4
failed to give them individualized care. See A1959–61;
A2214–15. The government also called many of Robinson’s
patients from the indictment who testified similarly—
Robinson only accepted cash, then money orders, see A2536
(Townsend); he treated patients in a group, not individually,
see A2821–22 (Lusby); and his patients saw his practice as “a
place to get easy medication, a source of medication,”
A2864:1–2 (Copsey); see also A3089–93 (Goble), A3145–48
(Thomas). Several bank employees testified for the
government as to Robinson’s banking practices and money
order deposits. See A1244–47, 1802–09. A pharmacy
employee who sold money orders, Sahar Bockai, Jr., testified
about customers buying $370 money orders in the vicinity of
Robinson’s practice during the years he practiced. See A1083–
86. Importantly, the government also presented expert witness
Dr. Mark Romanoff, whom the court certified in a pretrial
Daubert hearing. See A381–458. Romanoff testified
regarding how providers should establish a medical
relationship with their patients and the national standard for
proof of that relationship. See, e.g., A3723–26.
In his defense, Robinson presented testimony from Dr.
Erica Brock, a chiropractor who worked with him, concerning
his record-keeping. A2775–86. She testified that Robinson
would call the police on patients who tried to obtain medication
using fake MRIs. A4333:11–15. Dr. Yolanda Lewis-Ragland
also testified for Robinson, stating that in order to treat his
patients by manipulating their spines, Robinson needed to use
“adequate pain management.” A4540:5–6. Robinson also
presented a number of character witnesses in his defense.
The trial lasted approximately twenty days. Robinson,
2020 WL 5569953, at *2. After deliberating for two-and-a-
half days, the jury acquitted Robinson on one count and found
him guilty on the other forty-two prescription counts and two
5
money laundering counts. See 5016, 5133, 5271–73; A153–
65. It also found liability on some of the forfeiture allegations.
A166–69. The court sentenced him to 135 months’
imprisonment.
After sentencing, Robinson moved for a new trial and
to reverse his convictions. In these motions, Robinson alleged
Brady violations for the government’s failure to disclose three
reports: (1) two Pryor Reports, so named for DEA Agent Pryor,
showing that Robinson called the DEA in 2011 to discuss
fraudulent prescriptions, A208–211; and (2) the “CCN” Report
from the D.C. Metropolitan Police detailing a specific instance
in 2013 in which Robinson contacted law enforcement about a
pill-seeker, A187–95. Robinson also argued that the
government violated Napue v. Illinois, 360 U.S. 264 (1959), by
introducing false testimony from the undercover DEA agents
posing as patients at Robinson’s clinic. He finally argued that
the government’s expert, Dr. Romanoff, failed to follow his
own methodology for reviewing Robinson’s patients’ charts,
and the court should therefore exclude his testimony.
In two separate opinions, the district court rejected all
of Robinson’s post-trial arguments and denied the motions. In
its first opinion, the court conducted a Brady analysis and
concluded that the Pryor Reports were favorable to Robinson
and suppressed by the government. Robinson, 2020 WL
5569953, at *7. However, it ultimately found the Reports
immaterial principally because they were cumulative of other
evidence Robinson introduced at trial, and therefore their
suppression had not hampered Robinson’s theory of defense.
Id. at *8–11. The court also found that the CCN Report was
favorable to Robinson but not suppressed, and also not
material, because a DEA report, A181–86, made at the same
time about the same instance and that was available to
Robinson, included all of the relevant information regarding
6
the incident, id. at *12. Addressing Robinson’s evidentiary
argument regarding Dr. Romanoff’s testimony, the court
concluded that it was properly admitted at trial, given that
Robinson had an opportunity to cross-examine Dr. Romanoff
to highlight any inconsistencies, and because the court gave the
jury instructions that they were not required to credit expert
testimony. Id. at *4.
In its second opinion, the court addressed Robinson’s
Napue argument and concluded that he had no valid argument
that the government witnesses’ testimonies were either false or
material. United States v. Robinson, Crim. No. 16-98, 2021
WL 2209403, at *9–10 (D.D.C. May 31, 2021). Robinson now
revives each of these arguments on appeal to this Court. He
also adds that the trial court lacked sufficient evidence under
Federal Rule of Criminal Procedure 29 to convict him.
Because a favorable result to Robinson on sufficiency
of the evidence would obviate the need for further proceedings
due to the Constitution’s prohibition on double jeopardy, U.S.
CONST. amend. V, we will first discuss why the evidence in
Robinson’s case is sufficient. However, we will next explain
how the government violated Brady in withholding the Pryor
and CCN Reports, requiring us to reverse and remand this case
to the district court. Finally, although the Brady error is
dispositive of this appeal, the remand will open the possibility
of a new trial, and Robinson’s remaining arguments as to the
evidentiary questions in the case are likely to arise again on
retrial. We will therefore briefly discuss those last.
II. Discussion
We review de novo Robinson’s Brady, Napue, and
sufficiency of the evidence arguments. United States v. Vega,
826 F.3d 514, 535 (D.C. Cir. 2016) (Brady); United States v.
7
Ausby, 916 F.3d 1089, 1092 (D.C. Cir. 2019) (Napue); United
States v. Lucas, 67 F.3d 956, 959 (D.C. Cir. 1995) (sufficiency
of the evidence). For sufficiency of the evidence challenges,
we will uphold a guilty verdict supported by sufficient
evidence so long as after viewing the evidence in the light most
favorable to the prosecution, a “rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). We
review under an abuse of discretion standard the district court’s
evidentiary rulings as to Dr. Romanoff’s testimony. Gen. Elec.
Co. v. Joiner, 522 U.S. 136, 143 (1997).
1. Sufficiency of the Evidence
Robinson argues that the evidence at trial was
insufficient to convict him. He contends that each of his actual
patients included in the indictment, despite the fact that they
were ultimately pill-seekers addicted to oxycodone, had real
ailments to which he properly responded in good faith, and the
government did not prove otherwise. He also argues that the
two undercover DEA agents presented real MRIs with real
injuries, leading Robinson to believe he was treating them
appropriately.
After reviewing the government’s evidence, we are
satisfied a rational trier of fact could have found Robinson
guilty. For example, the government presented testimony that:
(1) Robinson concerned pharmacists so much with his uniform
high dosage of oxycodone, the changing prescription formats,
and the lack of consistent verification that they stopped filling
his prescriptions, see, e.g., A1581–82; (2) he appeared to have
copied and pasted parts of one patient’s medical records into
another’s multiple times, an offense for which a medical
professional would usually suffer the suspension or loss of his
license, A411–14; (3) he scarcely examined the government’s
8
undercover DEA Agent Adams when she came to his practice,
A1959–60, and did not provide her with medical advice in a
private setting but rather in a large group, A1961; (4) he did not
physically examine undercover DEA Agent Lee other than to
pull on his legs, simply strapping him to the traction table
without inquiring about his ailments or any prior injuries,
A2214–15; (5) he treated many of his real patients in the same
manner as the undercover agents, including patient Kevin
Copsey, who testified that the first several times he visited
Robinson’s practice, Robinson did not physically examine him,
see A2866–67; A3021; A2821–23; (6) Robinson frequently
treated patients in groups rather than in private settings, see
A3299–3300, 3093; and finally, that (7) he never advised many
of his patients of a treatment plan or warned them about the
dangers of oxycodone addiction, see, e.g., A2874; A2974;
A3147–48; A3303; A3309–10.
As the government’s expert, Dr. Romanoff, explained,
the defining aspect of a medically professional relationship
with a patient to whom the provider will provide oxycodone is
to “have asked [the patient] about their pain. You have made
very specific inquiries about their pain, and you have examined
them to try and figure out what is causing their pain.” A3719
(emphasis added). Without this proper foundation, there is no
legitimate basis for a provider to prescribe opioids. A3809:20–
23 (“[GOVERNMENT]: [I]f there was no legitimate provider-
patient relationship established before issuance of the
prescription, then what would be your conclusion? [DR.
ROMANOFF]: Then it would not be a legitimate
prescription.”); see also A3719, A3723–28. The government’s
evidence supports the conclusion that Robinson often simply
did not establish a proper relationship with his patients before
prescribing them oxycodone. We therefore hold that the
evidence at Robinson’s trial was sufficient to convict.
9
2. Brady
The Brady rule arises from the Supreme Court’s case of
Brady v. Maryland, 373 U.S. 83 (1963), and requires
prosecutors to “disclose evidence favorable to the accused that,
if suppressed, would deprive the defendant of a fair trial,”
United States v. Bagley, 473 U.S. 667, 675 (1985). In other
words, “the suppression by the prosecution of evidence
favorable to an accused upon request violates due process
where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.”
Brady, 373 U.S. at 87. Courts use a three-part test for
determining whether the government committed a Brady
violation: “[1] [t]he evidence at issue must be favorable to the
accused, either because it is exculpatory, or because it is
impeaching; [2] that evidence must have been suppressed by
the State, either willfully or inadvertently; and [3] prejudice
must have ensued.” Strickler v. Greene, 527 U.S. 263, 281–82
(1999). The prejudice requirement is one of materiality, where
“evidence is material only if there is a reasonable probability
that, had the evidence been disclosed to the defense, the result
of the proceeding would have been different.” Bagley, 473
U.S. at 682. In other words, the undisclosed evidence must
raise a “probability sufficient to undermine confidence in the
outcome.” Id.
Robinson asserts the government violated Brady when
it withheld three reports, the two Pryor Reports and the CCN
Report, from the defense before and during trial. We agree.
The district court found no Brady violation in ruling on
Robinson’s post-trial motions. After applying Brady’s three-
part analysis, it found (1) the Pryor Reports were both
favorable to Robinson and suppressed by the government under
Brady’s first two requirements, but not material under the last,
10
principally because they were cumulative of other evidence
Robinson introduced at trial, and therefore their suppression
did not “prevent Defendant Robinson from presenting his
defense,” Robinson, 2020 WL 5569953, at *7–8, *9; and (2)
the CCN Report was favorable to Robinson but not suppressed
by the government because it duplicated evidence Robinson
already possessed, id. at *11–12. We disagree in both
instances.
First, a word on the abovementioned “reasonable
probability” standard. This test is not a particularly demanding
one. This is true because the government’s burden at the trial
level is so demanding. See United States v. Agurs, 427 U.S.
97, 112 (1976), holding modified by Bagley, 473 U.S. 667
(“The proper standard of materiality must reflect our overriding
concern with the justice of the finding of guilt. Such a finding
is permissible only if supported by evidence establishing guilt
beyond a reasonable doubt. It necessarily follows that if the
omitted evidence creates a reasonable doubt that did not
otherwise exist, constitutional error has been committed.”).
That is to say, in this case the government won a verdict
of guilty on forty-four counts. This required that all twelve
jurors be convinced beyond a reasonable doubt of the
defendant’s guilt on each of those counts. See id. More
specifically, all twelve jurors had to find beyond a reasonable
doubt that, as to each individual patient in the forty-four counts,
Robinson “knew that [he] was acting in an unauthorized
manner” outside of a legitimate doctor-patient relationship, or
intended to do so. See Ruan v. United States, 142 S. Ct. 2370,
2375 (2022); 21 U.S.C. § 841(a). Had even one juror harbored
a reasonable doubt as to the defendant’s guilt on any count, the
guilty verdict on that count could not have been returned. See
Agurs, 427 U.S. at 112. Therefore, given that the evidence
already showed that there may have been some instances in
11
which Robinson was a legitimate prescriber, it is not beyond
reason that a juror might harbor doubt as to one count or
another, which could have resulted in a hung jury rather than a
verdict of guilty. Although the district court carefully dealt
with all the questions in the case, we cannot sustain the verdict
in light of the Brady violations.
To uphold a verdict in light of a Brady violation, the
evidence must be sufficient to show that there is no reasonable
probability that the verdict would have been different. Bagley,
473 U.S. at 682. Since it would have taken only one juror
harboring a doubt to change the result, we cannot say that the
record survives Brady analysis. While not essential to our
decision, we note that in this case the jury deliberated for two-
and-a-half days before it returned unanimous guilty verdicts on
forty-four counts but acquitted on another count of illegally
prescribing oxycodone without a legitimate medical purpose.
This may at least suggest that some jurors verged on a
conclusion that the government had not proven some count or
counts beyond a reasonable doubt. This is especially so when
we again remember that the government had the burden of
proving each element of the case beyond a reasonable doubt.
See Agurs, 427 U.S. at 112. Further, it is not unreasonable, in
light of the jury’s acquittal on one count, to imagine that some
juror may believe as to one count that this was a legitimate
patient, given that Robinson presented himself as an innovative
and successful treater of back pain. It is at least reasonable to
imagine that one or more jurors might conclude that the
government did not prove beyond a reasonable doubt that this
was not the case on one or more counts.
i. Pryor Reports
First, we agree that the Pryor Reports were both
favorable to Robinson and suppressed by the government.
12
These Reports were made by DEA Special Agent Lisa Pryor
about incidents which occurred on January 11 and 25, 2011.
The first shows that Robinson called the DEA to report that
“someone was using his name on fraudulent prescriptions.”
A208. He reported that he had witnessed a “spike” in patients
from Southern Maryland a few months prior and believed
fraudulent prescriptions were being passed in his name there.
A208–09. He further stated that he had audited his files and
found a patient attempting to gain prescriptions from him in
order to sell in Southern Maryland. A209. Agent Pryor’s
second report focuses on the same subject matter and reports
that Robinson stated he “lost approximately eighty patients
from the Southern Maryland area” whom he believed to be pill-
seekers. A210. He also explained that he had contacted police
in that area. Id.
We agree with the district court that the Pryor Reports
were favorable to Robinson. As noted above, the Reports show
that Robinson contacted law enforcement about fraudulent
prescriptions and that he told law enforcement he had lost
eighty patients to pill-seeking. Robinson, 2020 WL 5569953,
at *7. The district court aptly noted that “[i]n a case in which
Defendant Robinson is accused of illegally providing
individuals with medication, such reports can be considered
favorable to him.” Id.
We also agree that the government suppressed the Pryor
Reports. Robinson requested them on multiple occasions
before trial and was told they did not exist. Robinson, 2020
WL 5569953, at *7. It was only about six months after trial,
when Agent Pryor disclosed that another agent accompanied
her when she spoke to Robinson and that he may have taken
notes, that the government located and turned over the Reports.
Id. at *7.
13
Most importantly, we disagree with the district court’s
conclusion that the Pryor Reports were immaterial under
Brady’s third requirement. The district court found that the
suppression of the Pryor Reports did not prejudice Robinson,
and was therefore immaterial, principally because they were
cumulative of other evidence Robinson introduced at trial.
Robinson, 2020 WL 5569953, at *9–10. Such evidence
included testimony that Robinson elicited that he kept a
“security file folder on patients that are bad . . . [and] would
have them arrested” and undercover video of Robinson himself
telling patients he would report them to law enforcement for
pill-seeking. Id. at *10.
We cannot conclude that Robinson’s own evidence as
to his behavior toward pill-seekers was cumulative of the Pryor
Reports. Importantly, the Pryor Reports represent evidence
from the government’s records themselves that Robinson
actually reported his patients’ illegal activity to authorities.
One or more jurors may have given far greater weight to the
government’s own reports that Robinson did report the
behavior over Robinson’s supposedly self-serving evidence
testifying he would have reported such behavior. Cf. In re
Sealed Case No. 99-3096 (Brady Obligations), 185 F.3d 887,
897 (D.C. Cir. 1999) (“Surely information obtained from a
government-certified liar cannot substitute for information
obtained from the government itself-particularly not when the
defense was seeking information from a more trustworthy
source in order to corroborate. . . .”). We note that the
prosecution suggested in closing argument that the defense
presented self-serving testimony and that “[e]verybody [was]
playing their part so the defendant can make the money and the
patients can get their prescriptions.” A5080; see also Appellant
Br. 3. We therefore hold the Pryor Reports were not merely
cumulative of evidence Robinson presented at trial.
14
We instead conclude that they are material. The Pryor
Reports show that Robinson proactively contacted two groups
of law enforcement, local Southern Maryland police and the
DEA, about pill-seeking behavior, which included the passing
of fraudulent prescriptions in his name. They show that he
audited his files to ferret out the pill-seekers. And most
importantly, they may have raised a reasonable doubt in the
mind of one or more jurors as to one or more charges that
Robinson was illegally providing prescriptions to pill-seekers
because he was in fact calling such behavior to the attention of
authorities. See A208–11. We therefore conclude that the
withheld information in the Pryor Reports presents “a
reasonable probability that, had [it] been disclosed to the
defense, the result of the proceeding would have been
different.” Bagley, 473 U.S. at 682. The suppression of the
Reports could “undermine confidence in the outcome” of this
case, id., and we therefore hold the government committed a
Brady violation when it withheld them.
ii. CCN Report
We also hold that the government did in fact suppress
the CCN Report, ultimately constituting a second Brady
violation. The CCN Report memorializes an incident in which
Robinson reported to the D.C. Metropolitan Police his
suspicions about the pill-seeking behavior of a prospective
patient in 2013. A189. The Report specifically shows that
Robinson’s office called to check the veracity of the patient’s
referral, found it to be false, and that Robinson physically
retrieved his prescription of oxycodone from the patient after
police arrived. Id.
The district court conducted a Brady analysis regarding
the government’s withholding of the CCN Report and found
the Report was favorable to Robinson. Robinson, 2020 WL
15
5569953, at *11. However, it then found that the government
had not suppressed the Report under Brady’s second
requirement because it provided a similar report made by the
DEA about the same incident which gave Robinson “all [the]
relevant information.” Id. at *12. The district court concluded
that “there is no Brady violation ‘if the information was
available to [the defendant] from another source.’” Id. at *11
(alteration in original) (quoting United States v. Graham, 484
F.3d 413, 417 (6th Cir. 2007)); see also id. (listing cases from
the Sixth, Eleventh, and Eighth Circuits); id. (“Brady violations
involve discovery of information ‘which had been known to the
prosecution but unknown to the defense.’” (quoting Agurs, 427
U.S. at 103)).
First, we agree that the CCN Report was favorable to
Robinson under Brady’s first requirement. Second, while the
district court’s analysis regarding the availability of the same
information from another source correctly describes the classic
Brady violation, this violation is of another sort. The prejudice
to the defendant here occurs not from the lack of information
contained in the Report, but from the inability to provide the
more convincing source corroborating the information
contained therein. Cf. In re Sealed Case No. 99-3096, 185 F.3d
at 897. It is nonetheless a deprivation of the defendant’s right
to potentially exculpatory evidence. And it is undisputed that
the government suppressed the CCN Report. See Oral Arg. Tr.
21:9–13 (“[THE COURT]: [W]hat is the explanation on why
the CCN report wasn’t turned over? [GOVERNMENT]: Your
Honor, the record doesn’t indicate specifically why the CCN
report was not turned over prior . . . .”).
Third, we hold that the CCN Report was material. It
was not duplicative of the DEA Report, and the information it
contained was unknown to Robinson. While true the DEA
Report contains more detail than the CCN Report, it does not
16
explicitly give evidence of Robinson’s practice of checking
patient referrals to ensure they were bona fide. Compare
A181–86 (DEA Report), with A187–95 (CCN Report). The
CCN Report specifically provides evidence that Robinson had
a system in place for identifying fake referrals, the presence of
which likely suggested pill-seeking. See A189 (“[Suspect]
brought a refer[r]al into the [clinic] which [Robinson] called to
have verified by the alledged [sic] medical clinic. [Robinson]
learned through the alledged [sic] medical clinic that they had
no such record of [suspect] being refer[r]ed to [Robinson]’s
office by them.”). And it shows that upon finding the fake
referral, Robinson called police. Id. In a case where the
government charges a defendant with providing illegal
prescriptions to pill-seekers, this Report presents at least a
“reasonable probability” that the jury might not have found
Robinson guilty, and its suppression could undermine
confidence in the jury’s ultimate verdict. See Bagley, 473 U.S.
at 682.
The remedy for a Brady violation is a new trial. See
Kyles v. Whitley, 514 U.S. 419, 421–22 (1995); see also United
States v. Oruche, 484 F.3d 590, 595 (D.C. Cir. 2007) (“[O]nce
a court finds a Brady violation, a new trial follows as the
prescribed remedy, not as a matter of discretion.” (citation
omitted)). We therefore hold Robinson is entitled to a new trial
due to the suppression of the Pryor and CCN Reports.
3. Napue Violations
As previously mentioned, we will briefly address
Robinson’s remaining evidentiary arguments, as they are likely
to reappear in the district court. Robinson contends that the
government violated its obligations under Napue v. Illinois by
“introduc[ing] false or misleading testimony or allow[ing] it to
go uncorrected [from the undercover DEA agents posing as
17
patients at Robinson’s clinic and a person who sold money
orders] . . . even though the government knew or should have
known that the testimony was false.” United States v. Straker,
800 F.3d 570, 603 (D.C. Cir. 2015 (citations omitted)); see also
Napue, 360 U.S. at 269.
More specifically, Robinson argues DEA Agent Adams
gave false testimony about the extent to which Robinson asked
her about her pain and examined her. He secondly contends
that DEA Agent Lee falsely testified whether he told Robinson
he was taking oxycodone and whether he told Robinson
specifically about his pain. Finally, Robinson alleges a Napue
violation for the government’s introduction of allegedly false
testimony from a seller of money orders, Sahar Bockai, Jr., as
to the amounts, times of day, and suspiciousness of the money
orders Bockai sold to customers in the vicinity of Robinson’s
practice. Robinson argues that he has satisfied the “hair
trigger” test for setting aside his conviction, United States v.
Gale, 314 F.3d 1, 4 (D.C. Cir. 2003), given what he argues is
the “reasonable likelihood that the false testimony could have
affected the judgment of the jury,” id. (quoting Agurs, 427 U.S.
at 103).
We, like the district court, disagree. These alleged
“falsehoods” could not have reasonably swayed a jury. For
one, each of the witnesses was testifying from his or her own
memory about the events of which they were asked. Any
honest mistakes in the witnesses’ testimony could be, and in
many instances were, highlighted to the jury through
Robinson’s impeachment of them on cross-examination. See
Appellant’s Br. 28 (“[Agent] Adams also had to be impeached
before she admitted that Robinson spoke with her individually
. . . .”); see also id. at 30 (stating that on cross-examination,
“[Agent Lee] was forced to admit that testimony, too, was
inaccurate.”). The trial court also gave Robinson the option to
18
recall Bockai for impeachment, but Robinson declined. And
the jury saw videos the undercover agents made while visiting
Robinson’s practice, enabling them to “assess the veracity of
the agents’ testimony about their visits” themselves. Robinson,
2021 WL 2209403, at *9. That Robinson impeached
witnesses’ testimony does not, as he suggests, connote a Napue
violation. See Appellant’s Br. 28–29. On the contrary,
determining the credibility of these witnesses is precisely the
role of the jury as factfinder. Johnson v. United States, 426
F.2d 651, 655 (D.C. Cir. 1970) (“Of all the issues which are in
the highest order for a jury one is hard pressed to suggest one
more firmly intended and more plainly suited for jury
determination than that of [a witness’s] credibility.”).
Therefore, the prosecution committed no Napue violation.
4. Romanoff Testimony
We finally turn to Robinson’s contention that the
district court erred in permitting Dr. Romanoff to testify as the
government’s expert under Federal Rule of Evidence 702.
Pretrial, the district court conducted a Daubert hearing, A381–
458, and ultimately qualified Dr. Romanoff as “an appropriate
expert witness,” Robinson, 2020 WL 5569953, at *4; see also
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592–95
(1993). At the Daubert hearing, Dr. Romanoff told the court
that he conducted a chart review, examining a random
sampling of Robinson’s patients’ records, looking for adequate
documentation to support Robinson’s prescription of opioids to
the patients in the sample. A392–94. He testified that upon
review of the charts, he “could not find a patient who received
opioids that had appropriate documentation in the chart that
would justify the use of that medication.” A410: 12–14. Dr.
Romanoff later reiterated at trial that many of the prescriptions
Robinson wrote for oxycodone were invalid because a “patient-
provider relationship [did] not exist.” See, e.g., A4020–21.
19
Robinson argues that Dr. Romanoff failed to follow the
national standards of chart review by examining far fewer
charts than required, reviewing only portions of those records
instead of them in their entirety, and failing to consider
contradictory evidence that helped Robinson’s case. He
contends that these alleged shortcomings prejudiced him
because Dr. Romanoff provided the only inculpatory evidence
against him as to some of the charges in the case.
Like the district court, we disagree. First, we will only
overturn the district court on an evidentiary matter for abuse of
discretion, Gen. Elec. Co., 522 U.S. at 141, and we see no abuse
here. The district court carefully assessed Dr. Romanoff’s
ability to testify as an expert at the pretrial Daubert hearing.
See A381–458. During the hearing, Dr. Romanoff testified that
he reviewed Robinson’s patients’ charts pursuant to the
national standard. See, e.g., A399–403. Robinson cross-
examined Dr. Romanoff at the Daubert hearing, giving the
district court the opportunity to hear about any potential
problems with the doctor’s testimony. See, e.g., A417–38.
Moreover, once the court qualified Dr. Romanoff as an expert,
Robinson cross-examined him again at trial in front of the jury
about alleged defects in his methodology, leaving the jury to
weigh Dr. Romanoff’s credibility as a witness. Robinson, 2020
WL 5569953, at *4; see e.g., A4047–59 (cross-examining Dr.
Romanoff about patient files he had not reviewed prior to trial).
The district court also instructed the jury it was “not bound by
[Dr. Romanoff’s] opinion” in coming to its conclusion.
A5103:12. Therefore, as with the government’s other
witnesses, the jury performed its exact role in assessing Dr.
Romanoff’s credibility. See supra Part II.3. We hold the
district court did not abuse its discretion in permitting Dr.
Romanoff to testify as an expert witness.
20
III. Conclusion
We hold that the evidence at trial was sufficient to
convict Robinson, and we affirm the district court on its Napue
and expert testimony rulings. However, we reverse the district
court on its Brady decision and remand this case for a new trial
due to the government’s suppression of the favorable and
material Pryor Reports and CCN Report.
So ordered.