## Facts

- James Potter was a Nevada-licensed physician registered with the DEA and authorized to prescribe controlled substances only for legitimate medical purposes in the usual course of professional practice.
- A federal grand jury charged Potter with unlawfully distributing controlled substances under 21 U.S.C. § 841(a)(1) based on prescriptions he wrote for five individuals.
- At trial, five prosecution witnesses described obtaining controlled-substance prescriptions (including quaaludes and dexedrine) from Potter with little or no medical examination and without a documented medical reason.
- Multiple witnesses testified that Potter issued “double” prescriptions—two prescriptions for the same drug at the same time—often written in two different names for the same person (e.g., using a first name and another variation of the name).
- Witnesses also testified that Potter instructed them to fill the multiple prescriptions at different pharmacies.
- Some witnesses testified that, at Potter’s request, they performed fellatio on him and that he wrote prescriptions during the sexual act; they described receiving prescriptions in connection with these encounters.
- The government’s evidence reflected no meaningful medical justification in the record for the prescribing practices described by the witnesses.
- A jury convicted Potter, and he appealed, challenging (among other things) the admission of the sexual-acts testimony.

## Issues

1. Whether testimony that Potter exchanged prescriptions for sexual acts was inadmissible “other acts” evidence under Federal Rule of Evidence 404(b) and/or should have been excluded as unfairly prejudicial under Rule 403.
2. Whether the trial evidence was sufficient to support convictions under 21 U.S.C. § 841(a)(1) for prescribing controlled substances outside the usual course of professional practice and not for a legitimate medical purpose.

## Decision

- The Ninth Circuit affirmed Potter’s convictions.
- The court held the testimony describing sexual conduct in Potter’s office was admissible because it was part of the circumstances of the prescription transactions charged and helped show the prescriptions were not issued for legitimate medical purposes.
- The court concluded the district court did not err in admitting the evidence despite its prejudicial nature, because it had strong value on the central question whether Potter’s conduct was medical treatment or unlawful distribution.
- Viewing the evidence in the light most favorable to the government, the court held the proof was sufficient for the jury to find Potter unlawfully distributed controlled substances by issuing prescriptions outside professional practice and without a legitimate medical purpose.

## Legal Principles

- A physician may be convicted under 21 U.S.C. § 841(a)(1) when he knowingly issues controlled-substance prescriptions outside the usual course of professional practice and not for a legitimate medical purpose.
- Evidence that is part of the charged transaction and explains the circumstances of the alleged crime is not barred merely because it also shows wrongful conduct; it may be admitted to present the complete story of the offense.
- Even when evidence reflects misconduct, it may be admissible under Rule 404(b) to prove matters such as intent, knowledge, motive, or absence of mistake, rather than propensity.
- Under Rule 403, a trial court may admit highly prejudicial evidence when its probative value is substantial and the risk of unfair prejudice does not substantially outweigh that value; appellate review is deferential.
- Prescribing practices such as minimal examinations, repeated refills without medical support, duplicate prescriptions in different names, instructions to use different pharmacies, and quid pro quo exchanges can support a finding that prescriptions were distributions lacking medical legitimacy.

## Conclusion

United States v. Potter affirmed a physician’s § 841 convictions where the government proved that controlled-substance prescriptions were issued without a legitimate medical purpose and outside professional practice; testimony that prescriptions were written during sexual acts and in duplicate names for filling at different pharmacies was properly admitted because it was tightly connected to the charged prescription transactions and strongly probative of illegitimate intent.


United States v. Potter, 616 F.2d 384 (1979)