UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
UNITED STATES OF AMERICA,
RAY DOUGLAS STAPLETON, TINA
MARIE STAPLETON, and EMMANUEL
Criminal No. 12-11-ART-(1),(2),(4)
OPINION AND ORDER
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The government hopes to introduce a law enforcement narcotics expert to prove that
the defendants used their pain clinic to distribute medically baseless prescriptions in violation
of federal law. The defendants raised numerous objections, and the government responded
by narrowing the scope of the proposed testimony, rendering several of the defendants’
arguments moot. After considering the remaining objections, the Court will limit the expert
testimony to one subject: the typical features of the drug conspiracies commonly known as
The defendants are charged with various drug crimes, including conspiring to illegally
distribute oxycodone and other controlled substances. It all started when Kentucky police
arrested Ray Stapleton for driving under the influence. R. 158 at 1. Officers searched his car
and found over a million dollars in cash and thousands of pills. Id. The trail of evidence
eventually led the police to the pain clinic that Stapleton and his wife owned and operated.
Id. at 1–2. The government says the Stapletons’ pain clinic was the hub of a large drug
conspiracy where two doctors issued a high volume of medically baseless prescriptions. Id.
These doctors, Dr. Stephen Arny and Dr. Emmanuel Acosta, were employees of the
Stapletons. All four defendants now stand accused of flooding their community with
dangerously powerful and addictive drugs. Id.
To prove that the defendants knowingly distributed unnecessary prescriptions, the
government seeks to introduce Kentucky State Police Detective Randy Hunter as an expert.
His proposed testimony concerns two basic opinions: 1) the amount of pills and cash found
in Ray Stapleton’s car is consistent with intent to distribute, and 2) the defendants’ pain
clinic is consistent with the characteristics of a typical “pill mill.” See R. 175 at 2. As
defined by Detective Hunter, a “pill mill” is an ostensibly legitimate clinic that unlawfully
distributes a large volume of controlled substances without a genuine medical purpose.
R. 151-2 at 1. Hunter summarized the bases of his opinions in a written report provided to
the defendants. Id.
Relying on that report, the Stapletons and Dr. Emmanuel Acosta separately moved to
exclude Detective Hunter’s proposed testimony. See R. 127; R. 133. The Court then held a
Daubert hearing to discuss the motions. See R. 164. At the hearing, the Court ordered new
briefing. Id. at 2–3. And in their renewed motions, the Stapletons and Dr. Acosta raise
several objections under Federal Rules of Evidence 702, 703, 704, and 403, as well as the
Confrontation Clause. They argue that Hunter’s testimony should be excluded because his
opinion is: 1) outside his expertise; 2) irrelevant; 3) unhelpful to the jury; 4) unreliable;
5) based on hearsay, prior bad acts, and the opinions of other experts; 6) an explicit opinion
about the defendants’ intent; 7) impermissible “profile” evidence; and 8) otherwise unduly
prejudicial. See R. 167; R. 168.
The government, for its part, has made key concessions rendering some of these
objections moot. First, Detective Hunter will only rely on admissible evidence. See R. 175
at 2, 12. As such, he will avoid discussing any of the defendants’ prior medical licensing
problems, which the prosecution concedes are inadmissible propensity evidence. Id. at 12.
This initial concession also moots the defendants’ objection to Hunter’s reliance on hearsay.
Second, Hunter will only testify that the evidence is consistent with intent to distribute and a
typical pill mill. Id. at 2. The government originally intended for him to testify that the
Stapleton’s clinic actually is a pill mill, but later walked that back. Compare R. 159 at 6,
with id. at 96–97. This concession moots arguments that Detective Hunter opines directly on
the defendants’ guilt. And lastly, Detective Hunter will not offer a “medical opinion” or
testify as a “medical expert.” R. 159 at 32, 42; R. 175 at 2, 4. Hunter admitted that he
generally lacks the necessary expertise to reach medical conclusions about the specific
treatment practices of the defendants in this case. See, e.g., R. 159 at 44–45. But despite this
admission, Hunter will not simply list the characteristics of a typical pill mill. He plans to go
further, testifying about what makes particular features of a pain clinic suspicious, including
why certain physician behavior is a red flag because it is inconsistent with legitimate pain
management. See id. at 36–38; R. 175 at 5–7.
After considering the defendants’ remaining objections, the Court will limit Detective
Hunter’s expert testimony to the features pill mills generally exhibit—the pill mill modus
operandi. For the reasons discussed below, Hunter may not opine on: 1) whether the
defendants’ pain clinic exhibits any of those features, 2) why any of those features are
inconsistent with legitimate medical treatment, and 3) whether the cash and drugs seized
from Ray Stapletons’ car is consistent with intent to distribute.
Detective Hunter May Testify About Typical Pill Mills
Although Detective Hunter’s drug enforcement credentials are quite impressive, the
defendants raise some legitimate concerns with his testimony about pill mills. Because
comparing the defendants’ pain clinic to a typical pill mill is unduly prejudicial, Hunter may
only discuss pill mills in general. And since Hunter is not a doctor, he lacks the requisite
medical expertise to explain why certain physician behavior is inconsistent with legitimate
pain management. Detective Hunter is otherwise free to discuss the features law
enforcement officers usually find in pill mills.
Hunter’s Testimony About the Usual Features of Pill Mills Satisfies Rule 702
The government may introduce Detective Hunter’s expert testimony on the usual
characteristics of pill mills. Rule 702 of the Federal Rules of Evidence charges the Court
with a “gatekeeping role” in screening expert testimony. Tamraz v. Lincoln Elec. Co., 620
F.3d 665, 668 (6th Cir. 2010) (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579,
597 (1993)). Such testimony satisfies Rule 702 only if it meets three requirements: 1) the
witness is qualified, 2) the expert’s testimony will assist the jury, and 3) the testimony is
reliable. In re Scrap Metal Antitrust Litig., 527 F.3d 517, 528–29 (6th Cir. 2008). As the
proponent of the expert testimony, the government must establish its admissibility by a
preponderance of the evidence. Nelson v. Tenn. Gas Pipeline Co., 243 F.3d 244, 251 (6th
Cir. 2001) (citing Daubert, 509 U.S. at 592 n.10). Detective Hunter’s testimony about the
typical features of pill mills satisfies all three of Rule 702’s requirements, and thus may pass
through the courthouse gate.
Hunter is Sufficiently Qualified
To offer his expert opinion Detective Hunter must be qualified based on his
“knowledge, skill, experience, training, or education.” Fed. R. Evid. 702. Formal training is
not necessarily required. Cf. United States v. Winkle, 477 F.3d 407, 415–16 (6th Cir. 2007)
(finding an employee of an accounting firm with extensive banking experience qualified to
testify even though he had no formal accounting education). Repeated firsthand observations
may provide a witness the specialized knowledge and experience he needs to testify as an
expert. See Berry v. City of Detroit, 25 F.3d 1342, 1349–50 (6th Cir. 1994). Whether
Detective Hunter’s law enforcement experience is sufficient thus depends, at least in part, on
“the nature and extent of that experience.” United States v. Cunningham, 679 F.3d 355, 379
(6th Cir. 2012).
Given Detective Hunter’s impressive narcotics credentials, he is amply qualified to
discuss the features drug investigators usually find in pill mills. The Stapletons suggest the
clinical nature of pill-mill conspiracies makes their inner workings entirely a matter of
medical expertise, see R. 168 at 7, but Hunter does not need to be a medical expert to know
their basic signs. Those signs are well within the competence of law enforcement. The
factors relevant to Hunter’s qualifications thus include his time as a narcotics investigator,
his field experience, and his drug training. See United States v. Johnson, 488 F.3d 690, 698
(6th Cir. 2007); United States v. List, 200 F. App’x 535, 545 (6th Cir. 2006); United States v.
Anderson, 89 F.3d 1306, 1312 (6th Cir. 1996). All strongly count in his favor. Hunter has
extensive drug training and nearly fourteen years of drug enforcement experience, including
“coordinat[ing] the largest prescription drug round-up” in United States history. See R. 151-
1 at 1–2; see also R. 159 at 15 (discussing 12 years with the KSP Drug Enforcement
Section). Assigned to the Appalachia High-Intensity Drug Trafficking Area (HIDTA), his
regular duties include “identifying and developing large scale narcotics distributors within
the Commonwealth of Kentucky.” R. 151-1 at 2. And Hunter is presently leading or
consulting on four pill mill investigations in the Eastern District. Id. at 3. He is also active
in the field, making undercover purchases and working with confidential informants. R. 159
at 15, 23. Detective Hunter even trains other officers in pill mill investigations, and he has
lectured locally and nationally on the subject. Id. at 19–21. Given this extensive experience,
it is not surprising that Hunter has already testified several times as an expert on the illegal
distribution of prescription narcotics. R. 151-1 at 4.
Compared to other officers deemed qualified to offer similar expert testimony,
Detective Hunter has at least as much law enforcement experience, if not much more. See
Johnson, 488 F.3d at 698 (approving expert testimony of police officer who “worked on
narcotics investigations nearly his entire fourteen-year career”); Anderson, 89 F.3d at 1312
(finding an agent with nine years’ experience qualified); United States v. Bender, 265 F.3d
464, 471–72 (6th Cir. 2001) (approving testimony by an officer who had been with city
police department for fourteen years and a member of the vice/narcotics division for nine of
those years, had received extensive training in drug crimes and drug trafficking, and had
taught classes on drug enforcement and drug interdiction). Hunter’s extensive experience
thus qualifies him to describe the usual pattern or modus operandi of a pill mill. See United
States v. Combs, 369 F.3d 925, 940 (6th Cir. 2004).
Hunter’s Testimony Will Help the Jury
Since pill mills are designed to appear legitimate, Detective Hunter’s testimony will
“help the trier of fact to understand the evidence or to determine a fact in issue.” Fed. R.
Evid. 702(a). As described by the Supreme Court, whether an expert will help the jury is a
question going primarily to “relevance.” Daubert, 509 U.S. at 591. But as used in the
context of expert testimony, the term “relevance” has a special, dual meaning beyond its
traditional scope. To be relevant for purposes of Rule 702, Detective Hunter’s testimony
must, of course, relate to an issue in this case. Id. This requirement is no more than the basic
test of relevance that applies to all evidence. See Fed. R. Evid. 401. Beyond that universal
requirement, however, Rule 702 also requires that Hunter’s expert testimony help the jury
evaluate evidence it could not effectively judge on its own. See Fed. R. Evid. 702 advisory
comm. note (describing the helpfulness test as “whether the untrained layman would be
qualified to determine” the issue in dispute without an expert); see also United States v.
Thomas, 74 F.3d 676, 684 n.6 (6th Cir. 1996) (explaining that expert testimony must concern
matters outside “the understanding or common knowledge of the average juror”), abrogated
on other grounds by Morales v. Am. Honda Motor Co., 151 F.3d 500, 515 (6th Cir. 1998).
Hunter thus may only testify as an expert if lay jurors could not, without assistance, fully
piece together the cash, pills, and other possible red flags suggesting intent to distribute and a
broader illegal drug conspiracy. See Thomas, 74 F.3d at 682.
Testimony about the modus operandi of a typical pill mill is relevant to all four
defendants. Dr. Acosta disagrees, objecting that the practices of the Stapletons’ clinic as a
whole or the conduct of his codefendants has no bearing on his guilt because it says nothing
about his specific conduct. R. 167 at 7–8; 177 at 4. He suggests Hunter’s testimony invites
nothing more than the inference of “guilt-by-association.” R. 167 at 16. Indeed, if that were
the purpose of his testimony it would be irrelevant and thus inadmissible. See United States
v. Lopez-Medina, 461 F.3d 724, 742 (6th Cir. 2006). But this objection ignores the
government’s responsibility to prove the existence of a drug conspiracy. One way to prove
that conspiracy is by showing that the facts are consistent with the criminal modus operandi.
Courts thus routinely find modus operandi testimony relevant because it empowers the jury
to make that determination. See id. (holding that expert testimony about “the common
practices of drug traffickers” is relevant); Thomas, 74 F.3d at 682 (citing cases). Although
some of the characteristics described by Detective Hunter may be independently innocuous,
together they suggest an illegal drug scheme. See United States v. Stull, 521 F.2d 687, 691
(6th Cir. 1975). The government still must prove, of course, that Dr. Acosta voluntarily
joined that scheme, see United States v. Gibbs, 182 F.3d 408, 421 (6th Cir. 1999), but
Hunter’s testimony is still relevant to whether such a scheme exists in the first place.
Because Detective Hunter’s testimony goes to a fact in issue it satisfies the general test of
Moreover, Detective Hunter’s testimony will help the jury make sense of the evidence
because average jurors are not equipped to spot the seemingly innocent signs of a pill mill.
Expert testimony will only “help the trier of fact” if laymen could not adequately assess the
evidence on their own. See Fed. R. Evid. 702(a) & advisory comm. note. Common
experience suggests that without expert testimony, typical jurors would miss red flags
suggesting a pain clinic is up to no good. For example, most of us pay for healthcare using
insurance, so we might find a primarily cash-based clinic odd. But would you know what
possible inferences you could draw from this oddity? Would you feel confident concluding
some nefarious scheme was afoot? Most lay jurors would not have the foggiest idea what to
make of an all-cash pain-clinic practice, let alone that it might suggest a unique breed of drug
conspiracy. Likewise, crowds hanging outside a doctor’s office might be weird, see R. 159
at 35, but then again, maybe they correlate with peak visiting hours. Given this uncertainty,
courts recognize that knowledge of “the methods and techniques employed in an area of
criminal activity . . . is generally beyond the understanding of the average layman.” United
States v. Pearce, 912 F.2d 159, 163 (6th Cir. 1990) (internal quotation marks omitted).
Average jurors are especially unlikely to appreciate the differences among various types of
drug distribution schemes. Thomas, 74 F.3d at 682. As such, only a law enforcement expert
such as Detective Hunter could explain to a jury that regular crowds loitering are suspicious.
Since Hunter’s testimony about the characteristics of typical pill mills will assist lay jurors to
evaluate seemingly innocuous evidence—including nonmedical warning signs—that portion
of his opinion is relevant for purposes of Rule 702.
Hunter’s Testimony Is Reliable
Drawing on his wealth of narcotics experience and training, Detective Hunter arrives
at his opinion by applying his specialized knowledge to the relevant evidence. To satisfy
Rule 702, both his method and the resulting conclusions must be reliable. See Tamraz, 620
F.3d at 671–72 (rejecting an expert's conclusions as too speculative and attenuated). In other
words, Detective Hunter’s opinions must be the product of a reliable application of an
otherwise acceptable method. See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997)
(“[C]onclusions and methodology are not entirely distinct from one another. . . . A court may
conclude that there is simply too great an analytical gap between the data and the opinion
In judging that reliability, the Court usually looks to the Daubert factors. See 509
U.S. at 593–94. But when evaluating experience-based experts such as Detective Hunter, the
Daubert factors “cannot readily be applied to measure the reliability of such testimony.”
Surles ex rel. Johnson v. Greyhound Lines, Inc., 474 F.3d 288, 295 (6th Cir. 2007). The
reliability inquiry in such cases instead tends to “focus upon personal knowledge or
experience,” Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 150 (1999), overlapping
with analysis of the expert’s qualifications. Courts thus often infer from a law-enforcement
expert’s narcotics credentials that he has reliably applied his specialized knowledge. See
Lopez-Medina, 461 F.3d at 743 (assessing drug experts’ reliability by looking to their
“experience and training in investigating narcotics-related crimes”); see also United States v.
Walker, 657 F.3d 160, 176 (3d Cir. 2011).
Besides Detective Hunter’s track record, the Sixth Circuit adds one other relevant
factor: whether the expert’s findings came out of his independent research or were prepared
for the purposes of litigation. See Smelser v. Norfolk S. Ry. Co., 105 F.3d 299, 303 (6th Cir.
1997), abrogated on other grounds by Morales v. Am. Honda Motor Co., Inc., 151 F.3d 500,
515 (6th Cir. 1998). Although Hunter’s opinion is undoubtedly prepared for the purposes of
litigation, that is not enough to cast his entire record into doubt.
Based on Detective Hunter’s impressive narcotics experience and training, his
application of specialized knowledge about the illegal drug market and the workings of pill
mills is reliable. As discussed, Hunter has spent well over a decade in drug enforcement,
focusing largely on pill mills. He has field experience and even trains other officers in pill
mill investigations. Hunter thus needs no police manual or criminology studies to validate
his methodology, as the Stapletons suggest. See R. 168 at 4. Since pill mills are Detective
Hunter’s primary area of expertise, his specialized knowledge about their signatures and
methods gives him a solid basis for discussing their typical characteristics. And while the
Stapletons correctly note that some of the features Hunter describes may be vague, see
R. 168 at 2—for example, the “large volume” of people loitering outside the clinic, R. 151-2
at 3, or the “significant number” of addicted patients, id. at 4—these terms represent levels
consistent with typical pill mills, as determined by his experience and specialized knowledge.
Hunter can flesh them out for the jury during his testimony, and the defendants can test his
assertions through cross-examination.
There is also no problem with Hunter’s failure to discuss potentially innocent
explanations for some of the characteristics he describes, since he is only discussing the
features of typical pill mills. If the defendants believe his opinion is not strongly probative
because their clinic is sufficiently different so as to make the usual red flags unhelpful, they
are free to raise these issues on cross examination. Hunter is not opining that every pain
clinic displaying these signs actually is a pill mill. If the latter were Hunter’s opinion, he
would indeed have to account for alternative explanations. See United States v. Seelig, 622
F.2d 207, 214–15 (6th Cir. 1980) (requiring witness to compare the defendants’ pharmacy to
those of sufficient size and similarity); see also Fed. R. Evid. 702, advisory comm. note
(instructing courts to consider “whether the expert has adequately accounted for obvious
alternate explanations”). But since Hunter does not go that far, he need not address on direct
examination factors that might make the Stapletons’ clinic atypical.
Comparing the Defendants’ Clinic to a Typical Pill Mill is Unduly Prejudicial
Detective Hunter’s testimony about the usual features of pill mills is fair game, but
his opinion analyzing the Stapletons’ pain clinic is “substantially outweighed” by the danger
of unfair prejudice. Fed. R. Evid. 403. The defendants most strongly object that Detective
Hunter’s expert testimony is inherently prejudicial “profile” evidence, R. 167 at 6–8; R. 168
at 5–6. Courts define profile evidence in different ways, but it boils down to “a listing of
characteristics that in the opinion of law enforcement officers are typical of a person engaged
in a specific illegal activity.” United States v. McDonald, 933 F.2d 1519, 1521 (10th Cir.
1991). Although profile evidence is generally disfavored, the label is no magic legal
talisman. See United States v. Long, 328 F.3d 655, 666 (D.C. Cir. 2003) (explaining that
objections to “profile” evidence must be analyzed in terms of the Federal Rules of Evidence);
McDonald, 933 F.2d at 1522 (same). There is no categorical ban on such testimony. See
United States v. Baldwin, 418 F.3d 575, 581 (6th Cir. 2005) (discussing permissible uses).
The Court therefore must carefully weigh the probative value of Detective Hunter’s
testimony against its risk of prejudice, taking into account the unique aura of credibility
experts and law enforcement carry. See Lopez-Medina, 461 F.3d at 744 (noting that jurors
may accord law enforcement testimony undue weight); Brock v. Caterpillar, Inc., 94 F.3d
220, 226 (6th Cir. 1996) (noting power of experts to mislead). Still, to justify exclusion the
risk of unfair prejudice must overcome Rule 403’s presumption of admission. See United
States v. Zipkin, 729 F.2d 384, 389 (6th Cir. 1984).
Since pill mills are cloaked in the guise of medical legitimacy, Detective Hunter’s
testimony about their typical modus operandi is particularly probative in this case,
outweighing the risk of unfair prejudice. Courts frequently permit law enforcement
testimony about modus operandi. See Baldwin, 418 F.3d at 581; Pearce, 912 F.2d at 163.
When a criminal conspiracy is beyond the competence of lay jurors, the probative value of
expert testimony about the typical scheme outweighs the risk of prejudice. See Long, 328
F.3d at 666; White, 890 F.2d at 1014 (acknowledging risks but recognizing modus operandi
exception when area is beyond the competence of lay jurors). The Sixth Circuit for this
reason “regularly allows qualified law enforcement personnel to testify on characteristics of
criminal activity, as long as appropriate cautionary instructions are given.” United States v.
Swafford, 385 F.3d 1026, 1030 (6th Cir. 2004) (discussing examples). The risk of unfair
prejudice is thus not enough to exclude Detective Hunter’s testimony about pill mills
Analysis of the Stapletons’ clinic justifies exclusion, however, because it unduly risks
misuse by the jury. When a law enforcement expert offers a “point by point examination of
profile characteristics with specific reference” to the defendant, there is a particularly acute
risk the jury will convict simply because the defendant fits the profile. See United States v.
Quigley, 890 F.2d 1019, 1023–24 (8th Cir. 1989). Since the jury is competent to make the
comparison in this case on its own, linking the traits of a typical pill mill to the defendants’
clinic carries a significant risk of unfair prejudice without adding much probative value.
That risk substantially outweighs whatever minimal probative value Detective Hunter’s
analysis of the defendants’ pain clinic might add. Hunter therefore may not address whether
the Stapletons’ clinic displays any of the usual characteristics of pill mills. While he is free
to discuss pill mills generally, applying that testimony to the facts of this case is up to the
Detective Hunter Is Not Qualified to Discuss Legitimate Medical Treatment
The typical features of pill mills are well within Detective Hunter’s law enforcement
expertise, but Hunter is not qualified to discuss why any of those features are inconsistent
with legitimate medical treatment. That requires medical expertise. Although Hunter
suggested at the Daubert hearing that he has picked up some medical knowledge from his
training and experience, see R. 159 at 45, 77, as the record currently stands, Hunter does not
have the necessary qualifications to describe sound pain management. So, while Hunter is
free to describe any nonmedical basis for regarding certain features of a clinic as suspicious,
he must leave the rest to the government’s medical expert, Dr. Paul Harries. See R. 158
(certifying Dr. Harris as a medical expert).
The Bases of Hunter’s Expert Opinion Are Acceptable
The Stapletons and Dr. Acosta argue that Detective Hunter’s expert opinion should be
excluded because it depends on a variety of allegedly inadmissible evidence and improper
sources. The government’s response rendered most of these arguments moot, but those that
remain lack merit.
Hunter Will Not Rely on Inadmissible Hearsay or Prior Bad Acts
the defendants find objectionable falls
inadmissible buckets: hearsay and prior bad acts. The defendants first object that Detective
Hunter’s opinion depends on the truth of several out of court statements. These include
statements regarding the source of certain cash, crowds loitering outside the Stapletons’
clinic, and Dr. Stephen Arny’s treatment patterns. See R. 167 at 12–19; R. 168 at 2–3. The
defendants also object that reliance on Dr. Acosta’s past licensing issues in other states
impermissibly introduces evidence of prior bad acts. See R. 167 at 20–21; R. 168 at 12–13.
The government has already addressed these evidentiary concerns (at least for now) by
vowing that Detective Hunter will avoid relying on any inadmissible hearsay or prior
licensing troubles of the defendants. See R. 175 at 2, 12. And besides, the Court has barred
Hunter from testifying about the specific characteristics of the defendants’ clinic. So, even
without the government’s voluntary limitations, Hunter still would not be able to discuss the
contested evidence. As a result, for the purposes of the instant motions at least, the
defendants’ objections to hearsay and prior acts evidence are doubly moot. Some of their
evidentiary objections may later resurface, however, if the government attempts (as it
suggests it will) to introduce directly any of the evidence the defendants contend is
inadmissible. For example, the prosecution suggests without explanation that some of the
contested hearsay is indeed admissible. R. 175 at 12. Although the hearsay and
confrontation questions may return, the Court need not hypothetically resolve them all here.
The Court will address them when they arise.
Hunter Does Not Impermissibly Rely on Other Experts
The defendants also object that Detective Hunter’s opinion improperly restates and
relies on the opinion of Dr. Paul Harries and other medical experts. See R. 167 at 13, 19;
R. 168 at 8–11. But to the extent this objection concerns any conclusions specifically about
the defendants’ pain clinic, it is now moot. In order to avoid undue prejudice, the Court has
already limited Detective Hunter’s testimony to describing the characteristics of typical pill
mills. As such, Hunter will not address whether the defendants’ clinic actually displays any
of those characteristics, and thus he will not simply parrot Dr. Harries.
Dr. Acosta appears to go much further than objecting to reliance on Dr. Harries,
however, suggesting that Detective Hunter cannot rely on the conclusions of any other expert
in forming his own opinion. See R. 177 at 6. For example, Dr. Acosta points to Hunter’s
reliance on the case-specific views of non-testifying medical experts to support his opinion
that pill mills generally exhibit certain features. Id. If Hunter relied on these conclusions,
Acosta claims, he would be merely reiterating the opinions of another expert, which is
prohibited. Id. (citing Mike’s Train House, Inc. v. Lionel, L.L.C., 472 F.3d 398, 409 (6th Cir.
This argument misreads the law. Contrary to Dr. Acosta’s reading, Mike’s Train
House and the cases it cites stand for a much narrower proposition: an expert cannot bolster
his opinion by showing that a non-testifying expert concurs. See David H. Kaye, et al., The
New Wigmore: Expert Evidence § 4.7.1. Detective Hunter does not do so. He instead relies
in part on medical experts encountered throughout his law enforcement career to form a
general opinion about the usual features of pill mills. To bar categorically such reliance
would prohibit Detective Hunter from relying on a core part of his methodology. It would
forbid drawing on any part of his expertise that comes from another expert or even a
textbook. Such a rule would essentially require experts to develop expertise based only on
their firsthand experience. Dr. Acosta’s argument thus proves far too much, for it could
result in an infinite regress of experts in search of the original source of specialized
knowledge. This would completely undermine the basis of expert testimony. Contrary to
Dr. Acosta’s argument, the drafters of the Federal Rules specifically contemplated that
experts would rely on others with specialized knowledge. See Fed. R. Evid. 703 advisory
comm. note (noting that a physician might rely on “opinions from nurses, technicians and
other doctors”). Since Detective Hunter “would reasonably rely” on the conclusions of non-
testifying medical experts he has encountered across his years of training and investigations
“in forming an opinion” about the characteristics of pill mills, Hunter may rely on those same
experts in this case. See Fed. R. Evid. 703. But while Hunter may rely on the observations
of medical experts, he still may not describe why any of those observations are inconsistent
with legitimate medical treatment because he lacks the requisite medical expertise.
III. Detective Hunter May Not Testify that the Drugs and Cash Found in Ray
Stapletons’ Car Are Consistent with Intent to Distribute
Rule 702 does not permit Detective Hunter to explain what the jury can conclude on
its own: that the tremendous amount of drugs and cash found in Ray Stapleton’s car are
consistent with intent to distribute. Hunter’s long track record of handling drug conspiracies
certainly makes him qualified to offer that opinion, and for similar reasons that conclusion
would be reliable. But expert testimony about Stapleton’s intent would not help the jury.
True, typical jurors are not familiar with the market for illegal drugs, including the
significance of their quantity and prices. See Thomas, 74 F.3d at 682. For this reason, law
enforcement experts routinely “testify that circumstances are consistent with drug
distribution rather than personal use.” Ham, 628 F.3d at 805 (internal quotation marks
omitted). Yet while jurors may not be familiar with the drug trade, they still have their
As the case now stands, at least, this is not a borderline situation where the jury might
not know what to make of the evidence. Ray Stapleton was found driving with $1.3 million
cash and thousands of pills. Average jurors know enough about prescription drug abuse to
draw the inference that thousands of pills are far more than plausibly carried for personal use.
Since the inference of intent to distribute is natural, even to untrained laymen, evaluating the
evidence seized from Ray Stapleton’s car is “within the realm of common sense.” Thomas,
74 F.3d at 683 (quoting United States v. French, 12 F.3d 114, 117 (8th Cir. 1993)). The
government therefore does not need Detective Hunter to explain the obvious. If Stapleton
introduces opinion evidence or the like disputing his intent to distribute—for example, a
pharmacist who testifies that Stapleton’s behavior is consistent with legal transportation of
prescription drugs—perhaps Hunter’s expert testimony will be necessary. For now though,
Detective Hunter is limited to testifying about the general characteristics of pill mills.
IV. The Defendants’ Remaining Objections Lack Merit
The defendants raise several other unsuccessful arguments against Detective Hunter’s
expert testimony. They argue that Hunter’s use of the term “pill mill” and his dual role as
both fact and expert witness make his testimony unduly prejudicial. See R. 167 at 3–4, 24;
R. 168 at 11, 13. And by objecting to “profile” evidence, see R. 167 at 6–7; R. 168 at 5–6,
the defendants also suggest Hunter’s testimony is propensity evidence or a direct opinion
about their mental state. None of these objections have merit.
Detective Hunter May Use the Term “Pill Mill”
While the term “pill mill” certainly carries a negative connotation, its risk of unfair
prejudice is small. To be inadmissible under Rule 403 the term must be more than damaging
on account of its probative force; it must encourage the jury to rely on improper
considerations, such as emotion. See United States v. Johnson, 581 F.3d 320, 327 (6th Cir.
2009); Fed. R. Evid. 403, advisory comm. note (defining “unfair prejudice” as a “tendency to
suggest decision on an improper basis, commonly, though not necessarily, an emotional
one”). But even if the risk of improper use by the jury remains small, if an equally effective
term carries less risk, the prejudice associated with “pill mill” would still be unfair. See Old
Chief v. United States, 519 U.S. 172, 184 (1997) (holding that probative value depends in
part on alternative evidence available).
Compared to similar drug-related terms, “pill mill” is not especially inflammatory. It
is no more pejorative than, say, “drug ring,” or “stash house.” See United States v.
Hazelwood, No. 1:10-CR-150, 2011 WL 2565294, at *24 (N.D. Ohio June 27, 2011);
cf. United States v. Young, 745 F.2d 733, 760–61 (2d Cir. 1984) (holding that expert
testimony about the role that “heroin mills” play and the type of paraphernalia that one
would expect to find at such a mill is not unduly prejudicial). As commonly used by law
enforcement, the media, and lay people, “pill mill” is merely a shorthand description of a
pain clinic that issues medically baseless prescriptions. R. 159 at 43; see also United States
v. Kincaid, No. 3:10-CR-160, 2013 WL 5595404, at *3 (E.D. Tenn. Oct. 11, 2013); United
States v. Caroni, No. 3:10-CR-101, 2011 WL 4102343, at *4 (N.D. Fla. Sept. 13, 2011). To
be sure, the phrase evokes the prescription drug abuse all too common in Eastern Kentucky,
but it fairly captures the type of scheme Detective Hunter describes. Cf. United States v.
Lancaster, 968 F.2d 1250, 1255 (D.C. Cir. 1992) (holding that use of the term “crack house”
was permissible because it corresponded to the conduct at issue). “Pill mill” is not so
inflammatory that it would encourage the jury to blame the defendants for the crimes of
others. Moreover, the risk of prejudice from the term is exceedingly small in this case
because Detective Hunter will testify only about pill mills generally; he will not opine that
the defendants’ clinic is a pill mill or even consistent with the typical features of a pill mill.
This nearly entirely eliminates the risk of undue prejudice.
Hunter could, as Dr. Acosta suggests, use a more cumbersome definition just to avoid
the term “pill mill,” see R. 167 at 3, but that would add little value. The reduction in
prejudice would be marginal at best. Since average jurors are probably generally familiar
with this type of drug scheme (though not its particular methods and signs), they will likely
make the connection to the term “pill mill” on their own. And besides, whatever minimal
prejudice might be avoided is outweighed by the probative value of allowing Detective
Hunter to clearly and succinctly describe his opinion. As such, the phrase “pill mill” does
not meet Rule 403’s high bar for exclusion.
Detective Hunter May Testify in a Dual Role
The defendants also suggest Randy Hunter’s dual testimony as both a fact and expert
witness is unduly prejudicial, see R. 167 at 24; R. 168 at 13, but nothing suggests the normal
precautionary steps would be insufficient in this case. When a law enforcement officer
testifies in a double capacity there is a special risk the jury will confuse the officer’s roles
and give his testimony undue weight. See Lopez-Medina, 461 F.3d at 744; Thomas, 74 F.3d
at 682. Despite this risk, as long as the Court carefully delineates Detective Hunter’s
separate roles by giving a cautionary instruction, having him testify at two different times, or
both, this risk of prejudice is largely mitigated. See Lopez-Medina, 461 F.3d at 743–44. Any
risk of unfair prejudice remaining after these precautions is not substantial enough to
outweigh—let alone substantially outweigh—the significant probative value of Detective
Hunter’s expert testimony.
Remaining Objections Based on “Profile” Testimony Fail
Beyond the risk of undue prejudice, other potential objections to so-called “profile”
testimony are not a problem here. Based on the various common uses of the profile label, the
defendants’ objection might also suggest Detective Hunter’s testimony is inadmissible
because it is impermissible propensity evidence, see Baldwin, 418 F.3d at 581, or because it
is a direct opinion about the defendants’ mental state, Combs, 369 F.3d at 940. Hunter’s
testimony suffers from neither flaw.
Propensity Evidence: The relevance of Detective Hunter’s testimony does not
depend on impermissible propensity-based reasoning. The red flags Hunter describes are not
introduced to establish that the defendants have the character of those who operate pill mills
and therefore that they were operating a pill mill here. That would be propensity reasoning.
See Fed. R. Evid. 404(a)(1) (“Evidence of a person’s character or character trait is not
admissible to prove that on a particular occasion the person acted in accordance with the
character or trait.”). Instead, Detective Hunter’s testimony is designed to show that certain
features that might seem innocuous are actually circumstantial evidence of a pill mill itself.
The jury need not rely on any propensity inference to apply Hunter’s opinion to the
The Defendants’ State of Mind: Detective Hunter’s testimony expressly stops short
of directly opining about the defendants’ state of mind. An expert may not explicitly state an
opinion or an inference on whether the defendant did or did not have a culpable mental state.
See Fed. R. Evid. 704(b). Hunter will avoid that pitfall because he is limited to discussing
only the characteristics of typical pill mills. See Swafford, 385 F.3d at 1030; Combs, 369
F.3d at 940. There is thus no violation of Rule 704(b) because Hunter “simply describe[s] in
general terms the common practices of those who clearly do possess the requisite intent,
leaving unstated the inference that the defendant, having been caught engaging in more or
less the same practices, also possessed the requisite intent.” Combs, 369 F.3d at 940
(internal quotation marks omitted); see also United States v. Dunn, 846 F.2d 761, 762 (D.C.
Cir. 1988) (expert’s testimony that quantities of drugs, drug packaging material, drug
paraphernalia and weapons indicate a retail drug operation did not violate Rule 704(b)).
For the reasons stated in this opinion, the defendants’ motions to exclude are
GRANTED IN PART and DENIED IN PART.
This the 8th day of November, 2013.