## Facts

- Dr. Tran Trong Cuong, a Virginia-licensed physician registered with the DEA, was authorized to prescribe Schedule II–V controlled substances.
- He was indicted under 21 U.S.C. § 841(a)(1) on 136 counts for allegedly prescribing controlled substances outside the usual course of medical practice and not for legitimate medical purposes.
- The indictment also included a criminal forfeiture allegation under 21 U.S.C. § 853 targeting real property allegedly used to facilitate the offenses.
- At trial, the government relied heavily on testimony from seven former patients describing minimal examinations and prescriptions issued despite questionable symptoms.
- The government’s medical expert, Dr. Alan MacIntosh, reviewed records and opined that continuing narcotic prescriptions for most of the highlighted patients was not medically necessary and could be harmful.
- Over objection, MacIntosh testified that another physician (Dr. Stevenson), who did not testify, reached conclusions “almost identical” to MacIntosh’s after preparing a report on some patients.
- The government also introduced evidence that Tran had a negative reputation for over-prescribing, although Tran had not first offered character or reputation evidence.
- The jury convicted Tran on 127 counts, acquitted him on 8 counts, and 1 count was dismissed; the jury also returned a special verdict supporting forfeiture of Tran’s Alexandria, Virginia property.
- The district court sentenced Tran to 97 months’ imprisonment, imposed a special assessment, and ordered forfeiture.

## Issues

1. Whether the district court erred by allowing the government’s expert to bolster his opinion by conveying that a non-testifying physician’s report reached the same conclusions.
2. Whether the district court erred by admitting negative reputation (character) evidence when the defendant had not put his character in issue.
3. Whether the evidence was sufficient to support convictions on counts tied to prescriptions where no patient testified.
4. What standard governs criminal liability of a registered physician under 21 U.S.C. § 841(a)(1) for prescriptions allegedly written outside professional practice and without legitimate medical purpose.
5. Whether sentencing errors required relief.

## Decision

- The Fourth Circuit reversed the convictions and remanded for a new trial.
- The court held it was error to permit the government expert to relate that a non-testifying doctor’s conclusions matched his own, effectively placing the absent expert’s opinion before the jury without cross-examination.
- The court held it was error to admit reputation evidence against Tran in the government’s case-in-chief when Tran had not opened the door by offering character evidence.
- The court treated these evidentiary errors as sufficiently prejudicial to require a new trial, without resolving all remaining challenges as case-dispositive.

## Legal Principles

- Under Fed. R. Evid. 703, an expert may base an opinion on otherwise inadmissible information if it is the type reasonably relied upon by experts in the field, but Rule 703 does not permit an expert to serve as a conduit for introducing the substance of a non-testifying expert’s opinions as substantive proof.
- Introducing a second expert’s conclusions through a testifying expert, when the second expert does not testify and is not subject to cross-examination, is improper where it functions as hearsay and bolsters the testifying expert’s credibility.
- Under Fed. R. Evid. 404 and 405, the prosecution generally may not introduce negative character or reputation evidence to prove conduct in conformity with that character unless the defendant first puts character in issue.
- A registered physician may be prosecuted under 21 U.S.C. § 841(a)(1) if prescriptions are issued outside the usual course of professional practice and not for legitimate medical purposes; registration does not immunize conduct that exceeds professional bounds.

## Conclusion

The Fourth Circuit ordered a new trial because the jury heard improper character evidence and an expert’s bolstered opinion that effectively relayed the conclusions of a non-testifying physician, undermining evidentiary limits and the defendant’s ability to challenge the asserted expert agreement through cross-examination.


United States v. Tran Trong Cuong, 18 F.3d 1132 (4th Cir. 1994)