United States Court of Appeals
For the Eighth Circuit
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No. 16-3361
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Lisa Ann Davis
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Northern District of Iowa - Cedar Rapids
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Submitted: May 9, 2017
Filed: June 14, 2017
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Before RILEY and BEAM, Circuit Judges, and ROSSITER,1 District Judge.
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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
1
The Honorable Robert F. Rossiter, Jr., United States District Judge for the
District of Nebraska, sitting by designation.
court2 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.
2
The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
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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
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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
testimony if they wanted to rebut it. So let’s be careful on how those
things are phrased.
(Emphasis added).
At trial, the government sought to prove that Davis and Jody—with a little help
from their friends—worked together to obtain pseudoephedrine and other
methamphetamine precursors so they could manufacture methamphetamine at their
home. To that end, the government introduced certified records from the National
Precursor Log Exchange (“NPLEx”), an electronic pseudoephedrine tracking system
implemented in Iowa in 2010. The NPLEx notifies pharmacists when an individual
attempts to purchase pseudoephedrine in excess of Iowa’s legal limits—3.6 grams per
day and 7.5 grams per month. The limits were designed to correspond to the
manufacturers’ recommendations regarding normal use.
The NPLEx records revealed that, within the time parameters of the charged
conspiracy, Davis attempted to purchase pseudoephedrine 163 times at various
pharmacies in eastern Iowa. Blocked eight times, Davis’s 155 successful purchases
yielded 358.10 grams, which Davis equates to approximately two-and-a-half boxes
per month for five years. Jody made 166 purchases totaling 385.48 grams and was
blocked forty-one times over that same period.
The NPLEx records also showed that the Davises’ friends, including Tyrone
Jones (“Jones”), Chad Hines (“Hines”), Troy LeClere, Brian LeClere, Noel LeClere,
James Kula (“Kula”), and David Dirks (“Dirks”) were purchasing pseudoephedrine
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for the Davises as well. At trial, some of those friends testified they purchased
pseudoephedrine for the Davises—ostensibly to help Davis cope with her COPD.
Due to the Davises’ “uncommon” and “excessive” pseudoephedrine purchases,
Delaware County Deputy Travis Hemesath (“Deputy Hemesath”) began investigating
the Davises in May 2015. Deputy Hemesath contacted Jesse Spors (“Spors”), an
Asset Protection Manager at a Wal-Mart store where the Davises frequently
purchased pseudoephedrine.3 From Spors, Deputy Hemesath learned the Davises
were also purchasing other methamphetamine precursors such as Coleman fuel,
rubbing alcohol, lithium batteries, airline tubing, tinfoil, and cold-compress packs.
Electronic surveillance of the Davises in June 2015 combined with the NPLEx
records revealed them traveling to stores together to buy pseudoephedrine and other
precursors. At one store, the Davises arrived together but separated and bought
precursors at different registers at about the same time—a method Deputy Hemesath
testified methamphetamine manufacturers use to hide their purchases. In June 2015,
Davis purchased pseudoephedrine on the 15th, 17th, and 20th and attempted another
purchase on the 16th but was blocked.
On June 20, 2015, after tracking the Davises’ movements for most of the day,
law-enforcement officers obtained a search warrant for their residence in Hopkinton,
Iowa. When the officers executed the warrant, they discovered an illegal
methamphetamine lab. Davis was at the kitchen sink “within arm’s reach” of
numerous precursors and other evidence of the manufacture of methamphetamine,
including empty pseudoephedrine boxes, a coffee grinder lid with pseudoephedrine
residue on it, and a pie plate in the microwave with methamphetamine residue on it.
The rest of the house was likewise littered with evidence of an illegal
methamphetamine lab, including a homemade hydrogen chloride gas generator in a
bathroom and a crude ventilation system in the basement.
3
Wal-Mart was just one of the twelve stores where the Davises obtained
pseudoephedrine over the course of the charged conspiracy.
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At trial, the government adduced testimony from Deputy Hemesath, Spors, and
others about their investigations of the Davises and entered in evidence numerous
exhibits, including Wal-Mart receipts and records, photographs of the Davises’ home
and its contents, and a large amount of physical evidence seized during the search.
The government also introduced evidence under Federal Rule of Evidence 404(b) that
Davis had been previously convicted of manufacturing methamphetamine with Jody.
In her defense, Davis maintained she purchased pseudoephedrine legally and
solely to treat her COPD and that Jody, a regular user of methamphetamine, was
solely responsible for any illegal drug activity. On cross-examination, Davis elicited
testimony from Jones, Hines, Dirks, and Kula indicating Jody was the one who asked
them to purchase pseudoephedrine for him. Dirks and Brian and Noel LeClere
testified that Davis struggled with COPD and that they saw Davis take
pseudoephedrine pills to help her breathe.
Davis called Dr. Paynter as her only defense witness. On direct-examination,
he confirmed that Davis had long suffered from COPD and sought treatment for
years. Dr. Paynter indicated Davis used a nebulizer to assist with her breathing.
Davis, reportedly because of the district court’s earlier ruling, did not question
Dr. Paynter about the prescription or “how pseudoephedrine would or would not
assist a person who was having difficulty breathing.”
On cross-examination, the government asked Dr. Paynter whether he had
prescribed pseudoephedrine during the period of the charged conspiracy. He
answered he had not. He also testified Davis did not tell him she was taking
pseudoephedrine and said he “certainly would not recommend it specifically for the
treatment of COPD or asthma.” Davis did not object to the government’s line of
questioning nor did she address or seek to address the point on redirect.
On rebuttal, the government called Catherine Book (“Book”), a physician’s
assistant who had been treating Davis for her COPD since 2003. Book testified she
never told Davis to use pseudoephedrine. When asked why, Book testified it would
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be “contraindicated” for COPD because it would “dry up the lungs.” Davis again did
not object.
After Book was dismissed, the government rested its case in rebuttal. When
offered the opportunity, Davis declined to present any sur-rebuttal evidence. The
district court then advised the jury the evidence in the case had concluded and that
they would receive the jury instructions after a short break.
After the jury left the courtroom and the district court began to review the jury
instructions, Davis asked the district court to reconsider its ruling regarding the
admissibility of her post-indictment prescription based on the government’s rebuttal
evidence. Davis requested permission to recall Dr. Paynter because, in her view, the
government reopened the issue by asking Book whether she prescribed
pseudoephedrine during the period of the conspiracy. Noting Dr. Paynter was “long
gone” and Davis had rested without making an offer of proof, the district court
concluded Davis’s request was untimely. The district court later permitted Davis to
file a copy of the prescription in the record for purposes of appeal.
The district court completed the instruction conference and recalled the jury.
The district court read the instructions and then dismissed the jury for lunch. After
lunch and before closing arguments, Davis moved for a mistrial based on Book’s
rebuttal testimony and the exclusion of Davis’s prescription, arguing the district
court’s rulings were “unfair to the defense.” The district court denied the motion.
The jury found Davis guilty of all three counts against her. The district court
sentenced her to 168 months imprisonment. Davis appeals her convictions.
II. DISCUSSION
“The Constitution guarantees every criminal defendant a fair trial.” United
States v. Bordeaux, 400 F.3d 548, 558 (8th Cir. 2005). That right includes the
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“defendant’s right, grounded in the fifth and sixth amendments, to introduce evidence
in h[er] own defense.” Id.; accord Crane v. Kentucky, 476 U.S. 683, 690 (1986).
Davis contends her “right to a fair trial was denied when she was not allowed
to present evidence of” her post-indictment prescription for pseudoephedrine.
According to Davis, that “evidence was critical to corroborate [her] defense that she
purchased and possessed pseudoephedrine pills to treat her episodes of difficult
breathing,” especially after the government produced evidence that she had not been
directed to take nor had she received a prescription for pseudoephedrine during the
period of time covered by the Superseding Indictment.
Davis asserts that we review the district court’s exclusion of her post-
indictment prescription for an abuse of discretion. See, e.g., United States v. Woosley,
761 F.2d 445, 449 (8th Cir. 1985) (“The district court has considerable discretion in
admitting evidence of acts of subsequent conduct of a defendant offered to prove the
absence of evil intent.”). While that standard of review generally applies to a
properly preserved evidentiary challenge, “our review is de novo when the challenge
implicates a constitutional right.” United States v. West, 829 F.3d 1013, 1017 (8th
Cir. 2016). “We will reverse, however, only if the error is more than harmless.”
United States v. White, 557 F.3d 855, 857 (8th Cir. 2009) (citing Chapman v.
California, 386 U.S. 18, 22 (1967)).
“An evidentiary error is harmless if the substantial rights of the defendant were
unaffected and the error did not influence or had only a slight influence on the
verdict.” United States v. Peneaux, 432 F.3d 882, 894 (8th Cir. 2005); accord Fed.
R. Crim. P. 52(a) (“Any error, defect, irregularity, or variance that does not affect
substantial rights must be disregarded.”). The government bears the burden of
proving an error is harmless. United States v. Olano, 507 U.S. 725, 734 (1993).
Here, the government—credibly maintaining Davis did not properly preserve
the constitutional argument she now makes on appeal—urges us to review only for
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plain error. See, e.g., United States v. Letts, 264 F.3d 787, 789 (8th Cir. 2001)
(reviewing the defendant’s constitutional challenges for plain error “because he did
not make those claims in the district court”); Fed. R. Crim. P. 52(b) (“A plain error
that affects substantial rights may be considered even though it was not brought to the
court’s attention.”). To prevail under plain-error review, the defendant must
demonstrate “(1) error, (2) that is plain, and (3) that affects substantial rights. If all
three conditions are met, an appellate court may then exercise its discretion to notice
a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or
public reputation of judicial proceedings.” United States v. Pirani, 406 F.3d 543, 550
(8th Cir. 2005) (en banc) (quoting Johnson v. United States, 520 U.S. 461, 467
(1997)).
“We need not definitively resolve which standard of review applies” in this
case because Davis’s constitutional claim fails under either standard. United States
v. Johnson, 715 F.3d 1094, 1100 (8th Cir. 2013); see also United States v. Pumpkin
Seed, 572 F.3d 552, 561 n.7 (8th Cir. 2009) (concluding “the stricter plain error
standard” made “no difference” where the Court found “no error, plain or otherwise,
in the [trial] court’s exclusion of [the proposed] evidence”). Even if we assume, for
purposes of this appeal, that (1) the district court improperly excluded Davis’s
proposed post-indictment prescription evidence and (2) Davis adequately preserved
and presented her constitutional argument to the district court, we conclude the
exclusion of that evidence did not affect Davis’s substantial rights or materially
influence the verdict. See, e.g., Fed. R. Crim. P. 52; United States v. Dominguez
Benitez, 542 U.S. 74, 81 (2004).
The evidence of Davis’s guilt was overwhelming. Certified NPLEx records
and law-enforcement surveillance revealed that Davis, Jody, and their friends
purchased (sometimes simultaneously) large amounts of pseudoephedrine over the
course of the charged conspiracy in ways that indicated it was being used to illegally
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manufacture methamphetamine. See, e.g., United States v. Khehra, 396 F.3d 1027,
1029 (8th Cir. 2005) (per curiam).
The Davises were also recorded buying other methamphetamine precursors,
such as Coleman fuel, lithium batteries, and airline tubing, in suspicious ways. When
law-enforcement officers searched the Davis home, they found Davis in the middle
of a homemade methamphetamine lab “within arm’s reach” of several precursors and
other physical evidence of the unlawful manufacture of methamphetamine. To
underscore Davis’s knowledge and intent, the government presented evidence Davis
had previously been convicted of manufacturing methamphetamine with Jody.
In contrast, Davis’s proposed post-indictment prescription evidence was deeply
flawed. Even if marginally relevant to Davis’s defense, the prescription she received
from Dr. Paynter on October 28, 2015—more than four months after the charged
conspiracy ended, almost three months after Davis was originally indicted, and just
three weeks before trial—had, at best, minimal probative value as to her intent and
actions during the time period charged in the Superseding Indictment. See, e.g.,
United States v. Giambalvo, 810 F.3d 1086, 1097 (8th Cir. 2016) (“[T]here is no
doubt self-serving exculpatory acts performed substantially after a defendant’s
wrongdoing is discovered are of minimal probative value as to h[er] state of mind at
the time of the alleged crime[s].” (quoting United States v. Ellefsen, 655 F.3d 769,
778 (8th Cir. 2011))). This is especially true given the testimony from Dr. Paynter
that he “certainly would not recommend [pseudoephedrine] specifically for the
treatment of COPD or asthma” and from Book that “pseudoephedrine would be
contraindicated” for treating COPD.
What’s more, as the government points out, Davis obtained the prescription
under questionable circumstances that, at the very least, cast some doubt as to its
value. See, e.g., Radtke, 415 F.3d at 840 (discussing the “ever-present” risk that
post-indictment conduct might be “feigned and artificial” (quoting Post v. United
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States, 407 F.2d 319, 325 (D.C. Cir. 1968))). Shortly before her trial was to begin,
Davis, evidently for the first time, initiated a discussion about pseudoephedrine with
Dr. Paynter. According to Dr. Paynter’s notes on October 28, 2015, Davis
“complain[ed] about being investigated for pseudoephedrine abuse” because she had
been purchasing what she described as “small amounts” of pseudoephedrine “over the
past several years.”
In his October 28, 2015, notes, Dr. Paynter indicated he prescribed
pseudoephedrine to Davis to see if it might help Davis with her “seasonal allergic
rhinitis” (not COPD) and to “minimize suspicion of diversion.” When the district
court asked Davis’s counsel what testimony he expected Dr. Paynter to give at trial,
Davis’s counsel explained he expected Dr. Paynter to testify he prescribed
pseudoephedrine to Davis, in part, because “Davis was receiving the heat from law
enforcement.”
Under these circumstances, Davis’s post-indictment prescription is not the
evidentiary panacea she suggests. If nothing else, we are unwilling to say the
Constitution requires the admission of post-indictment evidence that results, in part,
from an effort to reduce the “heat” a criminal defendant is feeling from a valid law-
enforcement investigation.
To be sure, Davis may be correct that her post-indictment prescription
evidence—despite its considerable flaws—might have helped her offset the
considerable evidence against her and corroborate her innocence defense. But the
exclusion of that evidence did not deprive her of “a meaningful opportunity to present
a complete defense.” Crane, 476 U.S. at 690 (quoting California v. Trombetta, 467
U.S. 479, 485 (1984)). Though largely contradicted by the balance of the medical
evidence, Davis was still able to present her defense that she legitimately bought use
quantities of pseudoephedrine to self-treat her COPD during the time at issue. Both
of Davis’s medical providers confirmed she had COPD, and some of Davis’s friends
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testified on cross-examination that they purchased pseudoephedrine for the
Davises—ostensibly to help Davis with her COPD. Some even testified they
witnessed her taking the medicine to help her breathe.
“In light of the overwhelming evidence presented by the government” and the
minimal value of Davis’s proposed evidence, we are satisfied that any alleged error
in excluding Davis’s post-indictment prescription evidence was, at most, harmless.
See, e.g., United States v. Thetford, 806 F.3d 442, 447 (8th Cir. 2015).
III. CONCLUSION
We affirm the judgment of the district court.
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