Case 1:19-cr-00015-JMS-WRP Document 188 Filed 10/04/21 Page 1 of 7 PageID #:

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F. Clinton Broden
TX Bar No. 24001495
Broden & Mickelsen LLP
2600 State Street
Dallas, Texas 75204
214-720-9552
214-720-9594 (facsimile)
clint@texascrimlaw.com

Attorney for Defendant

Rudolph B. Puana

UNITED STATES DISTRICT COURT

DISTRICT OF HAWAII

UNITED STATES OF AMERICA, ) CRIMINAL ACTION NO.

)
Plaintiff, ) 1:19-CR-00015-JMS-WRP-1
)
v. )
)
RUDOLPH B. PUANA, )
)
Defendant. )
)

DEFENDANT’S MOTION IN LIMINE I

Defendant Rudolph Puana moves this Court in limine to exclude any evidence,

argument, or commentary about the public controversy surrounding opioid use,

including reference to an “opioid epidemic” or “opioid crisis” or similar terms.

BACKGROUND

It is important to recognize that this is not the type of case that has come to be

termed a “pill mill” case. Indeed, the allegations in the case are that Dr. Puana was
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prescribing opioids for three discreet individuals. The government alleges that Dr.

Puana gave these prescriptions to these individuals out of friendship but without a

legitimate medical purpose and outside of the usual course of professional practice.

Still, even under the government’s theory of the case, Dr. Puana received little to no

personal benefit from writing these prescriptions, and he operated a legitimate pain

practice along with other partners. Meanwhile, Dr. Puana strongly disputes the

allegations, and the three individuals have escaped their own criminal prosecutions

for making these false claims against Dr. Puana.

ARGUMENT

The government should not be permitted to offer evidence or argument about

the public controversy surrounding opioid use, including references to an “opioid

epidemic” and/or “opioid crisis,” and media coverage or political discussion

regarding the same.

First, the only possible objective for alluding to such topics would be a

manifestly improper one – namely to imply to the jury that, because Dr. Puana is

alleged to have dispensed opioid medication without a legitimate medical purpose

and outside the usual course of professional practice to these three individuals, the

public controversy associated with opioid use also should be attributed to him.

Attempts by the government to tap into public sentiment regarding the “opioid crisis,”

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or to liken Dr. Puana’s conduct to that of others who have been identified in the

media or elsewhere as affiliated with the “opioid epidemic” should not be permitted.

“[G]overnment prosecutors are not at liberty to urge jurors to convict defendants as

blows to the drug problem faced by society or specifically, within their communities,

or to send messages to all drug dealers. United States v. Solivan, 937 F.2d 1146,

1153-54 (6th Cir. 1991). A prosecutor may not urge jurors to convict a criminal

defendant in order to protect community values, preserve civil order, or deter future

lawbreaking. The evil lurking in such prosecutorial appeals is that a defendant will

be convicted for reasons wholly irrelevant to his own guilt or innocence. Jurors may

be persuaded by such appeals to believe that, by convicting a defendant, they will

assist in the solution of some pressing social problem. The amelioration of society’s

woes is far too heavy a burden for the individual criminal defendant to bear. United

States v. Monaghan, 741 F.2d 1434, 1441 (D.C. Cir. 1984). See also United States

v. Hawkins, 595 F.2d 751, 754 (D.C. Cir. 1978) (Prosecutors are not “at liberty to

substitute emotion for evidence by equating, directly or by innuendo, a verdict of

guilty to a blow against the drug problem”); United States v. Vega, 826 F.3d 514, 525

(D.C. Cir. 2016) (“A suggestion that the jury act as the ‘community conscience’ can

constitute error”). References to the public controversy surrounding opioid use

would serve no purpose other than to imply to the jury that Dr. Puana is

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“guilty-by-association” or that convicting Dr. Puana would address a social problem.

Second, the unfair prejudice that would result from any effort to suggest that

Dr. Puana’s conduct is like other controversies or actions that have received public

scrutiny would clearly confuse the issues and inflame the jury. See United States v.

Johnson, 231 F.3d 43, 47 (D.C. Cir. CAR2000) (“A prosecutor may not make

comments designed to inflame the passions or prejudices of the jury. And a

prosecutor may not ask jurors to find a defendant guilty as a means of promoting

community values, maintaining order, or discouraging future crime.”); Hart v. United

States, 538 A.2d 1146, 1150 (D.C.1988) (“[P]rosecutor ... transgressed the line into

impropriety by appealing to the jury to render a verdict based upon a larger policy,

and upon their own fears of being victimized ...”). United States v. Ring, 706 F.3d

460, 472 (D.C. Cir. 2013) (Unfair prejudice relates to “an undue tendency to suggest

decision on an improper basis”) (quoting Fed. R. Evid. 403, advisory committee’s

note). Such appeals are extremely prejudicial and harmful to the constitutional right

to a fair trial.” (emphasis added)). Thus, it would be improper, for example, for the

government to liken Dr. Puana’s alleged conduct to others’ wrongful acts or to appeal

to jurors’ potential prejudice against anyone who prescribes or dispenses opioid

medication based on the current public outcry and controversy.

Finally, such evidence and argument should also be barred because it would

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confuse the jury and delay the trial. See Fed. R. Evid. 403 (evidence should be

excluded where “its probative value is substantially outweighed by a danger of . . .

confusing the issues, misleading the jury, undue delay, [or] wasting time”). If it were

offered, Dr. Puana would be entitled to respond with context regarding the

government’s references to an “epidemic” or “crisis” in order to correct the

misimpression that such public controversies have anything to do with Dr. Puana’s

pain practice. This type of side dispute would be time consuming and would distract

from the central issues of this case.

Respectfully submitted,

/s/ F. Clinton Broden

F. Clinton Broden

Attorney for Defendant

Rudolph B. Puana

LOCAL COUNSEL:

Jason Z. Say #9486

Law Office of Jason Z. Say, LLLC
1130 N. Nimitz Highway, Suite B-299
Honolulu, HI 96817
(808) 679-7360
jzs@jasonsaylaw.com

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CERTIFICATE OF SERVICE

I, F. Clinton Broden, certify that on October 4, 2021, I caused the foregoing

document to be served by the electronic case filing system (ECF) on all counsel of

record.

/s/ F. Clinton Broden

F. Clinton Broden

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UNITED STATES DISTRICT COURT

DISTRICT OF HAWAII

UNITED STATES OF AMERICA, ) CRIMINAL ACTION NO.

)
Plaintiff, ) 1:19-CR-00015-JMS-RLP-1
)
v. )
)
RUDOLPH B. PUANA, )
)
Defendant. )
)

ORDER

Upon consideration of Defendant’s Motion in Limine I, said motion is this

_____ day of __________, 2021 GRANTED.

ORDERED, the government shall be precluded from offering any evidence,

argument, or commentary at trial about the public controversy surrounding opioid

use, including making reference to an “opioid epidemic” or “opioid crisis” or similar

terms.

FURTHER ORDERED the government shall make all relevant witnesses aware

of this Order.

____________________________
J. MICHAEL SEABRIGHT
Chief United States District Judge
District of Hawaii