                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       AUG 20 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    18-10500

                Plaintiff-Appellee,             D.C. No.
                                                4:17-cr-00150-HSG-1
 v.

DAVID LAGUE,                                    MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                     for the Northern District of California
                 Haywood S. Gilliam, Jr., District Judge, Presiding

                       Argued and Submitted May 12, 2020
                            San Francisco, California

Before: WALLACE and R. NELSON, Circuit Judges, and GWIN,** District
Judge.

      Defendant-Appellant, David Lague, appeals from his judgment of conviction

after a jury found him guilty of thirty-nine counts of prescribing controlled

substances outside the course of professional practice and without a legitimate


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable James S. Gwin, United States District Judge for the
Northern District of Ohio, sitting by designation.
medical purpose to five of his former patients. We affirm.1

      The district court did not plainly err in allowing the government to admit the

prescription data of Lague’s expert, Dr. Gary Martinovsky. Given the overwhelming

evidence of guilt admitted at trial, the complained-of prescription data did not

seriously affect the fairness, integrity, or public reputation of the trial. See United

States v. Buckland, 289 F.3d 558, 572 (9th Cir. 2002).

      The district court did not plainly err in allowing the government to cross-

examine Lague about the uncharged overdose deaths of three of his former patients.

The government properly introduced the overdose deaths for a non-character

purpose: Lague’s knowledge and intent. See Fed. R. Evid. 404(b)(2).

      Because the evidence tended to show that Lague knew that similar

prescriptions could lead to death, it was likewise relevant under Federal Rule of

Evidence 401. See United States v. Dorsey, 677 F.3d 944, 952 (9th Cir. 2012). Nor

was the evidence’s relevance outweighed by the danger of unfair prejudice under

Federal Rule of Evidence 403. The evidence, introduced on the government’s cross-

examination of Lague, comprised only a small amount of Lague’s overall testimony

and a small portion of the trial. Indeed, “[a]ny resultant prejudice was minimized

by the limiting instruction” the district court read to the jury to consider the overdose



1
  We resolve Lague’s arguments on the admissibility of his practice-wide
prescription data in a concurrently-filed opinion.

                                           2
evidence only for a valid Rule 404(b) purpose. United States v. Mende, 43 F.3d

1298, 1302 (9th Cir. 1995).

      The district court did not plainly err in allowing the government to admit the

out-of-court statements about the clinic’s reputation.2 SL and JC were Lague’s

former patients; their testimonies on how they first learned about the clinic were

therefore relevant background information. See Hakopian v. Mukasey, 551 F.3d

843, 847 n.4 (9th Cir. 2008). CL’s testimony about his attempts to convince the

clinic to stop prescribing opioids to his son was also relevant because Lague was

charged with prescribing controlled substances to CL’s son, DL, outside the usual

course of professional practice. See United States v. Feingold, 454 F.3d 1001, 1008

(9th Cir. 2006). Any prejudicial effect of the statements was minor because they

were directed at the clinic more generally and made up only a few sentences during

Lague’s nearly two-week trial.

      Finally, the government’s purported         evidentiary errors     considered

cumulatively do not compel reversal of Lague’s conviction because, even assuming

cumulative error, the errors were harmless. Based on the overwhelming patient-

specific evidence of guilt against Lague, the evidentiary errors did not materially

affect the verdict. See United States v. Beckman, 298 F.3d 788, 793 (9th Cir. 2002).


2
  We review Lague’s arguments based on Rule 401 and Rule 403, raised for the first
time on appeal, for plain error. See United States v. Gomez-Norena, 908 F.2d 497,
500 (9th Cir. 1990).

                                         3
AFFIRMED.




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