                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,              No. 15-50538
            Plaintiff-Appellee,
                                         D.C. No.
              v.                   8:12-cr-00011-CJC-1

JULIO GABRIEL DIAZ,
         Defendant-Appellant.            OPINION


      Appeal from the United States District Court
         for the Central District of California
      Cormac J. Carney, District Judge, Presiding

        Argued and Submitted October 6, 2017
                Pasadena, California

                Filed December 6, 2017

     Before: Andrew J. Kleinfeld, Susan P. Graber,
         and Morgan Christen, Circuit Judges.

              Opinion by Judge Christen
2                     UNITED STATES V. DIAZ

                            SUMMARY*


                           Criminal Law

    The panel affirmed a conviction for distributing
controlled prescription drugs in violation of 21 U.S.C.
§ 841(a)(1), in a case in which the defendant contended that
the government’s expert witness offered a legal conclusion in
violation of Fed. R. Evid. 702 and 704.

    The panel held that if the terms used by an expert witness
do not have a specialized meaning in law and do not represent
an attempt to instruct the jury on the law, or how to apply the
law to the facts of the case, the testimony is not an
impermissible legal conclusion. The panel held that the
district court in this case did not plainly err by admitting the
expert testimony of a witness who did not substitute his
judgment for the jury’s but provided a professional opinion
about whether a course of conduct comported with the
standard of care prevalent in the medical community.

    For reasons stated in a concurrently-filed memorandum
disposition, the panel vacated the sentence and remanded for
resentencing.




    *
      This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                      UNITED STATES V. DIAZ                             3

                             COUNSEL

Davina T. Chen (argued), Glendale, California, for
Defendant-Appellant.

Ann Luotto Wolf (argued), Assistant United States Attorney;
Dennise D. Willett, Chief, Santa Ana Branch Office; United
States Attorney’s Office, Los Angeles, California; for
Plaintiff-Appellee.


                              OPINION

CHRISTEN, Circuit Judge:

   Dr. Julio Diaz appeals his conviction and sentence under
21 U.S.C. § 841(a)(1), contending that the government’s
expert witness offered a legal conclusion in violation of
Federal Rules of Evidence 702 and 704. We reject his
contention and affirm his conviction.1

                         BACKGROUND

    From 1995 until 2011, Dr. Julio Diaz operated a clinic in
Santa Barbara that catered to geriatric patients. In 2005, the
clinic also started offering pain management and treatment.
According to the government, this aspect of Diaz’s practice
soon evolved into little more than a facade for the illegal
distribution of narcotics. Between 2008 and 2011, Diaz
wrote more than 50,000 prescriptions and prescribed more


    1
      Diaz’s other challenges to his conviction and sentence are addressed
in an unpublished memorandum disposition filed concurrently with this
opinion.
4                 UNITED STATES V. DIAZ

than 5 million opiate pills, with several patients being
prescribed, on average, more than 60 tablets per day. In
2012, Diaz was indicted for 88 counts of distributing
controlled prescription drugs in violation of 21 U.S.C.
§ 841(a)(1). The government eventually proceeded to trial on
79 of those counts, each count representing a prescription that
Diaz wrote for one of nine patients.

   To secure a conviction under 21 U.S.C. § 841(a)(1), the
government had to prove:

       (1) that the practitioner distributed controlled
       substances, (2) that the distribution of those
       controlled substances was outside the usual
       course of professional practice and without a
       legitimate medical purpose, and (3) that the
       practitioner acted with intent to distribute the
       drugs and with intent to distribute them
       outside the course of professional practice.

United States v. Feingold, 454 F.3d 1001, 1008 (9th Cir.
2006) (emphasis omitted). At trial, the government
introduced an expert witness, Dr. Rick Chavez, who testified,
without objection, that Diaz’s prescriptions were written
“outside the usual course of medical practice” and “without
a legitimate purpose.” The jury eventually convicted Diaz of
all 79 counts, and the district court imposed a sentence at the
maximum of the applicable range under the Sentencing
Guidelines—327 months. Diaz timely appeals, arguing that
Dr. Chavez impermissibly offered opinion testimony as to a
legal conclusion. We have jurisdiction under 28 U.S.C.
§ 1291, and we affirm.
                  UNITED STATES V. DIAZ                      5

                STANDARD OF REVIEW

   Because Diaz did not raise this issue before the district
court, we review for plain error. United States v. Mendoza-
Paz, 286 F.3d 1104, 1113 (9th Cir. 2002). Accordingly, we
may:

       correct an error not raised at trial only where
       the appellant demonstrates that (1) there is an
       error; (2) the error is clear or obvious, rather
       than subject to reasonable dispute; (3) the
       error affected the appellant’s substantial
       rights, which in the ordinary case means it
       affected the outcome of the district court
       proceedings; and (4) the error seriously
       affects the fairness, integrity or public
       reputation of judicial proceedings.

United States v. Lopez, 762 F.3d 852, 863 (9th Cir. 2014)
(quoting United States v. Marcus, 560 U.S. 258, 262 (2010)).

                       DISCUSSION

    Federal Rule of Evidence 702(a) requires that expert
testimony “help the trier of fact to understand the evidence or
to determine a fact in issue.” Federal Rule of Evidence
704(a) clarifies that “[a]n opinion is not objectionable just
because it embraces an ultimate issue.” As the 1972
Advisory Committee note says, “the so-called ‘ultimate issue’
rule is specifically abolished by the instant rule.” Thus, we
held in United States v. Davis, 564 F.2d 840, 845 (9th Cir.
1977), cert. denied, 434 U.S. 1015 (1978), that after the
adoption of Rule 704 in 1975, the common law posed no
barrier to testimony by a physician “that the appellant was not
6                     UNITED STATES V. DIAZ

prescribing drugs in the usual course of a professional
practice and for a legitimate medical purpose.” Although
Rule 704 abrogates the old common law doctrine that
proscribed testimony going to an “ultimate issue,” it “does
not lower the bar[ ] so as to admit all opinions,” FED. R. EVID.
704 Advisory Committee’s note to 1972 proposed rules.2
Consistent with Rule 704(a), this court has repeatedly
affirmed that “an expert witness cannot give an opinion as to
her legal conclusion, i.e., an opinion on an ultimate issue of
law.” Hangarter v. Provident Life & Accident Ins. Co.,
373 F.3d 998, 1016 (9th Cir. 2004) (quoting Mukhtar v. Cal.
State Univ., 299 F.3d 1053, 1065 n.10 (9th Cir. 2002),
overruled on other grounds by Estate of Barabin v.
AstenJohnson, Inc., 740 F.3d 457 (9th Cir. 2014) (en banc));
see United States ex rel. Kelly v. Serco, Inc., 846 F.3d 325,
337 (9th Cir. 2017). This prohibition of opinion testimony on
an ultimate issue of law recognizes that, “[w]hen an expert
undertakes to tell the jury what result to reach, this does not
aid the jury in making a decision, but rather attempts to
substitute the expert’s judgment for the jury’s.” United States
v. Duncan, 42 F.3d 97, 101 (2d Cir. 1994); see FED. R. EVID.
702(a), 704(a).

   Diaz argues that Dr. Chavez impermissibly testified about
whether Diaz distributed controlled substances outside the
course of professional practice. This trial testimony involved
a series of questions that followed a certain pattern: the


    2
      For example, Rule 704(b) provides that “[i]n a criminal case, an
expert witness must not state an opinion about whether the defendant did
or did not have a mental state or condition that constitutes an element of
the crime charged or of a defense.” FED. R. EVID. 704(b). In a
memorandum disposition filed concurrently, we decide that Dr. Chavez
did not impermissibly testify regarding Diaz’s mental state or condition.
                   UNITED STATES V. DIAZ                      7

prosecutor drew Dr. Chavez’s attention to prescriptions that
Diaz wrote for particular patients and asked whether the
“prescriptions for [the drugs were] issued outside the usual
course of medical practice” and whether “the drugs [were]
given to [the patients] for a legitimate medical purpose.” Dr.
Chavez invariably answered “yes” to the first question and
“no” to the second. According to Diaz, because the
prosecutor’s questions adopted the language of the elements
in § 841(a)(1), Dr. Chavez’s responses “substitute[d] his
judgment for the jury’s.”

    Both Diaz and the government rely on United States v.
Moran, 493 F.3d 1002, 1007 (9th Cir. 2007) (per curiam), in
which the defendants sold “tax reduction plans” that the
government alleged were offshore money laundering
schemes. Id. An element of one of the crimes was that the
“return was false as to something that was necessary to a
determination of whether income tax was owed.” Id. at 1008
(internal quotation marks omitted). At trial, an expert for the
government testified that one of the programs was a “sham.”
Id. The district court later defined the term “sham” for the
jury, explaining that “[t]o find that a transaction is a ‘sham,’
you must find beyond a reasonable doubt that the taxpayer
was motivated by no business purposes other than obtaining
tax benefits in entering the transaction, and that the
transaction has no economic substance because no reasonable
possibility of a profit exists.” Appellant’s Opening Brief at
47–48, United States v. Moran, 493 F.3d 1002 (9th Cir. 2007)
(Nos. 05-30215, 05-30226). We held that the expert’s
statement was admissible because, “[u]nder the judge’s
instructions, even if the transactions were a sham, the jury
would still have had to draw its own inference from that
predicate testimony to answer the ultimate factual question,
8                 UNITED STATES V. DIAZ

of whether income tax was owed.” Moran, 493 F.3d at 1008
(internal quotation marks omitted).

    Diaz reads Moran to say that, when an expert witness
opinion encompasses the entirety of an element of a crime, it
reaches “an ultimate issue of law” and is therefore forbidden.
The government understands Moran as having established
only that an expert witness may not offer an opinion on the
defendant’s guilt or innocence. We find the reasoning of
Moran too sparse to illuminate the issue in Diaz’s case.

    Other circuits have squarely confronted the rule excluding
testimony that goes to an ultimate issue of law in
circumstances similar to those presented here. See United
States v. Volkman, 797 F.3d 377 (6th Cir. 2015); United
States v. Chube II, 538 F.3d 693 (7th Cir. 2008); United
States v. McIver, 470 F.3d 550 (4th Cir. 2006); United States
v. Katz, 445 F.3d 1023 (8th Cir. 2006). In McIver, the Fourth
Circuit held that the district court did not plainly err by
allowing the jury to consider expert opinion testimony that
the defendant’s treatment of his patients was “outside the
usual course of medical practice,” “inappropriate,” or “with
no legitimate reason.” McIver, 470 F.3d at 560, 561–62. The
court observed that—unlike terms such as “extortion,”
“deadly force,” “fiduciary,” and “unreasonably dangerous”—
the terms used by the expert to describe the physician
defendant’s conduct did not “have a separate, distinct and
specialized meaning in the law different from that present in
the vernacular.” Id. at 562 (internal quotation marks
omitted). The Fourth Circuit reasoned that the phrase
“outside the usual course of medical practice” was not so
specialized as to render the expert’s testimony inadmissible,
especially since there are only so many ways of conveying,
                      UNITED STATES V. DIAZ                             9

in plain language, the impression of a physician abandoning
his professional role. Id. at 560, 562.

    Likewise, the Sixth Circuit held in Volkman that the
district court did not abuse its discretion by overruling a
similar objection to expert testimony that a physician
defendant’s prescriptions “were not written for any legitimate
medical purpose.” 797 F.3d at 388–89. There, the lay
understanding of “legitimate medical purpose” bore directly
on the relevant legal inquiry, i.e. whether controlled
substances “were distributed or dispensed outside of the
course of professional practice and not for a legitimate
medical purpose.” Id. at 387–90. Because the term
“legitimate medical purpose ” does not have a “separate,
distinct and specialized meaning” in law than it has in
medicine, the Sixth Circuit concluded that the government’s
experts did not invade the province of the trier of fact by
foisting legal conclusions on the jury. Id. at 387, 389–90.

    We find these cases persuasive and adopt their reasoning.
Although the value of expert testimony lies in the specialized
knowledge that an expert brings to bear on an issue in
dispute, FED. R. EVID. 702(a), it is sometimes impossible for
an expert to render his or her opinion on a subject without
resorting to language that recurs in the applicable legal
standard.3 We hold that if the terms used by an expert
witness do not have a specialized meaning in law and do not

    3
      As the Fourth Circuit noted, the “vernacular that is available to
express whether a doctor acted outside the bounds of his professional
practice” is “limited.” McIver, 470 F.3d at 562; see Chube II, 538 F.3d at
698 (observing that “it is impossible sensibly to discuss the question
whether a physician was acting outside the usual course of professional
practice and without a legitimate medical purpose without mentioning the
usual standard of care”).
10                UNITED STATES V. DIAZ

represent an attempt to instruct the jury on the law, or how to
apply the law to the facts of the case, the testimony is not an
impermissible legal conclusion. See FED. R. EVID. 702(a),
704(a).

    Here, expert testimony was needed to assist the jury. Dr.
Chavez’s testimony was helpful because a lay jury would not
have the requisite knowledge to evaluate whether the dosage,
mix, and course of narcotics prescribed by Diaz were
medically appropriate for the conditions being complained of
by his patients. Dr. Chavez’s opinions were based on a
review of the prescriptions for individual patients, and while
he employed phrases that also appear in the elements of
§ 841(a)(1), such as “outside the usual course of medical
practice” and “legitimate medical purpose,” these phrases
were used in their ordinary, everyday sense and do not “have
a separate, distinct and specialized” legal significance apart
from common parlance, McIver, 470 F.3d at 562. Dr. Chavez
did not substitute his judgment for the jury’s; he provided a
professional opinion about whether a course of conduct
comported with the standard of care prevalent in the medical
community.

    In the context of the case, Dr. Chavez’s testimony was no
doubt persuasive to the jury, but that is because it was
uncontradicted and consistent with a great deal of other
uncontradicted evidence. Diaz did not proffer a competing
expert opinion. Had he presented such testimony, it would
have been for the jury to weigh the experts’ competing
opinions concerning the medically acceptable standard for
prescribing controlled substances to the people who sought
them from Diaz.
                  UNITED STATES V. DIAZ                     11

    In sum, Dr. Chavez’s expert testimony passed muster
under Rules 702 and 704, and the district court did not plainly
err by admitting it into evidence.

                      CONCLUSION

    We affirm Diaz’s conviction. For the reasons stated in
the concurrently filed memorandum disposition, we vacate
his sentence and remand to the district court for resentencing.

  Conviction AFFIRMED; Sentence VACATED and
REMANDED for resentencing.
