Commonwealth v. Brown

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Questions Presented

1. Whether an audio-video tape recording of the defendant's conversation in the home of a cooperating witness was properly admitted in evidence at the jury-waived trial, where it was the product of a Federal investigation in which Massachusetts law enforcement personnel participated.
2. Whether a physician 'dispenses' rather than 'distributes' a controlled substance within the meaning of G. L. c. 94C, §§ 32A (a) or 32B (a), when it is delivered pursuant to what purports to be a prescription to a person who does not 'lawfully' possess it.

Holdings

1. The recording was properly admitted because the investigation was federally run from start to finish, falling within the exemption under G. L. c. 272, § 99 D 1 c for federal law enforcement officers acting pursuant to federal authority.
2. The recording was not subject to automatic suppression under art. 14 because the investigation was federal in nature.
3. A physician who issues an invalid prescription to a person seeking a controlled substance for illicit purposes has unlawfully 'distributed' rather than 'dispensed' the substance.
4. Any error in instructing the jury on unlawful dispensing rather than distribution was nonprejudicial, and the conviction stands on the theory of unlawful distribution.

Factual background

Michael R. Brown, a physician, was indicted for illegally distributing or dispensing controlled substances, submitting false medical claims, larceny, and possession of a controlled substance. The jury trial concerned prescriptions for pain-relieving opiates (class B substances) issued to seven patients despite evidence they were illegal drug users and not taking the prescribed opiates. An expert testified the prescriptions were not issued in good faith. The jury-waived trial concerned an indictment for distributing or dispensing a class C substance, where the defendant stipulated to prescribing opiates to a patient under an agreement to give some medication back to the defendant, with the prescription not written for a legitimate medical purpose. The only contested issue at the jury-waived trial was the admissibility of an audio-video recording of a conversation between the defendant and a patient, made by federal law enforcement.

Procedural history

Defendant was convicted at both a jury trial (for distributing or dispensing class B substances, submitting false medical claims, and larceny) and a jury-waived trial (for distributing or dispensing a class C substance). Cases were consolidated on appeal and affirmed by a divided panel of the Appeals Court. The Supreme Judicial Court granted further appellate review.