Documents in Dr. Rudy Puana Case

Case 1:19-cr-00015-JMS-WRP Document 169 Filed 07/19/21 Page 1 of 39 PageID #:
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MERRICK B. GARLAND
Attorney General
RANDY S. GROSSMAN
Acting United States Attorney
MICHAEL G. WHEAT, CBN 118598
JOSEPH J.M. ORABONA, CBN 223317
JANAKI G. CHOPRA, CBN 272246
COLIN M. MCDONALD, CBN 286561
Special Attorneys of the United States
880 Front Street, Room 6293
San Diego, CA 92101
619-546-8437/7951/8817/9144
michael.wheat@usdoj.gov
Attorneys for the United States of America
UNITED STATES DISTRICT COURT

DISTRICT OF HAWAII
CR No. 19-00015-JMS-WRP
UNITED STATES OF AMERICA,
UNITED STATES’ MOTIONS IN
LIMINE
Plaintiff,
v.
RUDOLPH B. PUANA,
Defendant.
The United States of America, through its counsel, hereby files the below
motions in limine.
BACKGROUND
Between 2012 and 2017, Defendant Rudolph B. Puana—a doctor on Hawaii
Island—prescribed controlled substances to approximately 995 patients. Out of

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those, only 21 patients received prescriptions of 30 mg pills of oxycodone, a highly
addictive opioid and Schedule II controlled substance.1 And within that narrow
subgroup, two individuals received over 25% of Puana’s total 30mg oxycodone
prescriptions (over 7,000 pills in all). As might be expected, those two individuals
shared a common feature—but it was not a debilitating health condition requiring
constant opioid treatment. Rather, they were Puana’s close friends. The staggering
number of pills flowing from Puana to these individuals demonstrates these
prescriptions were beyond the usual course of professional practice and not for
legitimate medical purposes. Indeed, as those friends confirm in sworn testimony,
Puana’s prescriptions had nothing at all to do with the practice of medicine. Rather,
Puana prescribed the monthly supply of pills so his friends could resell them on the
black market to earn some easy cash (some of which then went towards funding
cocaine parties with Puana).
To be more specific, Christopher McKinney was Puana’s childhood friend.
They reconnected later in life and wrote a book together. According to McKinney,
he and Puana began using large quantities of cocaine while collaborating on the
book. When they would meet on Hawaii Island, Puana would purchase the cocaine;
when Puana met McKinney on Oahu, McKinney would be responsible for finding
and purchasing the cocaine.
1
With limited exceptions, 30mg was the highest strength oxycodone/OxyContin
prescribed by Puana.
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Eventually, Puana started writing medically unnecessary prescriptions of
oxycodone to McKinney to use recreationally or sell. According to McKinney, he
paid approximately $90 for 120 oxycodone pills, which he would then sell for $15
per pill (which, in all, would total $1,800 per batch). Records from Puana’s clinic, a
pharmacy in Kailua, and the State of Hawaii’s Prescription Drug Monitoring
Program show that Puana dispensed at least 3,290 tablets of oxycodone to McKinney
between April 2015 and October 2017.2
Even though McKinney lived in Mililani, Puana’s staff directed him to fill the
oxycodone prescriptions at a particular pharmacy in Kailua. McKinney was told it
was “tough to find” a pharmacy on Oahu that would fill the prescription given the
size of the prescription. Puana knew that McKinney was selling portions of the
oxycodone—“in fact,” McKinney stated, “[h]e told me how much – how much it
could be sold for. He said that, you know, here, take this. You want to sell it, you
want to do whatever with it, do whatever you want with it. And he – he said that you
can – you can probably get about $15 per pill if you – if you find somebody who
will purchase it.”
McKinney did find someone willing to purchase, a drug dealer on Oahu
identified in the Superseding Indictment as CC4. McKinney told Puana about CC4,
2
This number may be even more, based on additional apparent oxycodone
distributions to McKinney logged by Puana in an off-the-record notebook that Puana
kept hidden at the pain clinic (described in more detail below).
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that she would “buy anything” and “sell anything.” Puana said “wow.” On one trip
to Oahu, Puana flew over with expired Fentanyl patches and eight or so bottles of
Xanax from the clinic. Puana told McKinney that the patches were “expired and they
were gonna be destroyed; so it was, you know, just under the radar stuff . . . .” 3 The
purpose of bringing the narcotics on the flight to Oahu was to “unload” to CC4. And
ultimately, CC4 took the patches and some of the Xanax bottles (McKinney held
onto the rest). When McKinney sold the Xanax, he gave Puana the proceeds. “For
that I would give him the cash; and it was just sort of like, you know, no rush,
whenever the next time I see you kind of thing.” In August 2015, while Puana and
McKinney were traveling together in Thailand, CC4’s house was searched, and the
drugs provided by Puana were seized by officers with the Honolulu Police
Department.
As for Puana’s second friend, Joshua DeRego, he and Puana were “almost
brotherly” in their friendship. That included playing “golf, [] drink[ing] beers, and
occasionally part[ying] with cocaine substances . . . .” Their children attended the
same private school on Hawaii Island. At one stage, Puana and his then-wife
sponsored a scholarship for DeRego’s children to attend the school, because DeRego
had trouble paying the high tuition. Puana eventually discontinued the scholarship.
When that happened, however, Puana told DeRego and his wife, Elena Rodriguez,
3
But in terms of the “desired effect” of the fentanyl, Puana told McKinney that “the
expiration date doesn’t really matter.”
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that he knew another way for them to make money and pay tuition—by reselling
oxycodone prescriptions. They agreed on this plan. And between February 2013 and
September 2015, Puana prescribed over 4,000 tablets of oxycodone (covered by
Medicaid) to DeRego’s wife, Rodriguez (who otherwise received no other
prescriptions from Puana).4 Puana further connected DeRego to a drug dealer named
“the Hawaiian,” and told DeRego that he could sell the prescribed medication for
$20 per pill. One month after the oxycodone prescriptions started flowing, DeRego
and Rodriguez made their first payment to their children’s private school in about
six months. And over the lifespan of the oxycodone prescriptions—around 30
months—they paid approximately $33,200 towards tuition, a far better average than
the approximate $40,067.30 they paid in the 60 months when Puana and DeRego
were not trafficking oxycodone (12 months prior, and 48 months after).
Defendant’s sister, Katherine Kealoha, was also a participant in Puana’s drug
distribution scheme. As Kealoha admitted in her plea agreement in this matter, Puana
wrote medically unnecessary prescriptions to her and others for the purpose of re-
distribution. Kealoha further admitted that Puana and McKinney would attempt to
sell and barter oxycodone and fentanyl and other substances in exchange for cocaine
for personal use by Puana, McKinney, Kealoha, and others. Then, and in furtherance
4
Simultaneously, DeRego was receiving a monthly supply of hydrocodone from
Puana. However, the oxycodone was filled at one pharmacy in Kamuela and the
hydrocodone was filled at a different pharmacy down the street.
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of the conspiracy, when Puana’s illegal distributions were discovered by HPD,
Kealoha assumed control of the investigation of the conspiracy to ensure Puana and
others were not prosecuted. As part of those efforts, Kealoha cultivated a close
personal relationship with CC4—by, among other things, communicating with CC4
using an encrypted messaging app—to reduce the likelihood that CC4 would reveal
Puana’s role in the drug conspiracy.
Throughout this period, Puana was himself a user of, and addicted to,
controlled substances. McKinney, DeRego, and others have provided first-hand
accounts of Puana’s repeated and frequent drug use. To get cocaine, among other
ways, Puana gave cash to his clinic’s office manager, who would then purchase
cocaine on his behalf. The bags of cocaine cost $100 each. Over a six-month period
in 2018, Puana’s office manager purchased cocaine for him one to three times a
month. Prior to 2018, a former clinic employee obtained cocaine for Puana, who
would place the cocaine in a drawer in the procedure room at the clinic. Puana’s use
of controlled substances spiraled to the point of challenging his fellow users to take
a photo of themselves using cocaine in an outrageous place. Puana’s sister, Katherine
Kealoha, “won” by submitting a picture with a line of cocaine on the desk of the
Honolulu Police Chief, Louis Kealoha. In August 2018, Puana admitted his
addiction to his then ex-wife and business partner at the clinic, Dr. Lynn Welch, who
arranged for him to travel immediately to the Betty Ford Clinic in Minnesota for
inpatient drug abuse treatment.
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Contemporaneous with his use of and addiction to controlled substances,
Puana unlawfully owned and possessed numerous firearms. And he shared his gun
enthusiasm with his fellow drug users, DeRego and McKinney—giving DeRego a
12-gauge shotgun and a 7mm rifle, and guiding McKinney through McKinney’s
contemplated firearm purchase (while describing his own firearms):
Puana: Take my lapua i cAn put out 1000 rounds through that and
you wouldn’t get tired. My 545/44 rhino chaser or 44 mag.
To shots you’d be tired. However the 45 caliber glock
with muzzle suppression retro recoil technology you could
fire 200 rounds compared to my 357 in which you’d pass
the gun at shot 6. Its all about the gun not the caliber. I
have 25 cal derringer that hurts more than my 45
Then during the zombie apocalypses? 7mm savage rifle. I took

down my bear with that easy at 100 yards up a tree
…
McKinney: How much does the ergonomics of the handgun effect the price?
Is it crazy?
Puana: It all depends. I think i need to be there. Of course it’s an increase

in Price but some brands roll it into a lower caliber or last years
model with the same tech. 500 bucks gets you a good gun. But
there are a lot of shitty 500 dollar guns. This is going to be fun
McKinney: I hear you. Yup, would be fun. I imagine hand size comes into
play with ergonomics as well?
Puana: Yes, Safety location, no safety, safety unengaged with grip, hand
contour riveting, weight, composite versus stainless, site
location, laser compatibility, [. . . .]
Ummmm basically we need to go so you find a comfortable gun

and i will tell you if it’s basically good worth it gun.
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That conversation with McKinney occurred in June 2018. In early August
2018, McKinney received a grand jury subpoena to testify before the federal grand
jury. He called Puana, who told McKinney to “just -- just remember, it’s our word
against hers, hers being [CC4].” Shortly after that conversation with McKinney,
Puana admitted his drug addiction to his ex-wife, Dr. Welch, and then traveled to
Betty Ford for treatment.
While receiving treatment at the Betty Ford Clinic, Puana called Dr. Welch
and asked her to go to a specific drawer in a treatment room at the pain clinic and
retrieve his “Glock.” He also asked Dr. Welch to gather some other personal items
and deliver them along with the Glock to his current wife’s address in Waimea. Dr.
Welch retrieved the Glock, other items, and delivered them as requested. Shortly
thereafter, Dr. Welch received a second call from Puana informing her that she had
forgotten to deliver the “clip” and directing her to it; Dr. Welch found it and
delivered the clip as Puana requested.
Then, on October 19, 2018,5 Puana brought a cache of firearms—nine in all—
to a Waimea hunting shop, looking to hastily sell them off. There, he met Customer
1, a fellow shopper. Puana told Customer 1 that he was there to sell some guns and
offered him first choice. Customer 1 bought from Puana a Thompson Center Arms,
5
This was shortly after Puana learned he was under investigation, and just two weeks
after meeting for a proffer session with the United States (as described in more detail
below).
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7mmVenture, long rifle. Thereafter, Puana sold six guns to the Waimea hunting
store: a Taurus International, Tracker 357 handgun; a Savage SV110BA long rifle;
an American Classic II, 45 handgun; a Bushmaster XM15-E-25, long rifle; a
Remington, 870 Express, shotgun; and a Glock 21, 45 ACP handgun. Puana tried
to sell two additional firearms to the store, but the store rejected them because Puana
did not have proper documentation. Puana told the store clerk he was selling his guns
because his wife did not want them in the house anymore.
For these acts, and more, Puana is charged with conspiracy to distribute and
dispense controlled substances, in violation of 21 U.S.C. §§ 841(a)(1) and 846
(Count 1); distributing and dispensing oxycodone and fentanyl, in violation of 21
U.S.C. § 841(a)(1) (Counts 3-38, 39); health care fraud, in violation of 18 U.S.C. §§
1347 and 2 (Counts 40-53); and being an addict in possession of a firearm, in
violation of 18 U.S.C. §§ 922(g)(3) and 924(a)(2) (Count 54).
II
MOTIONS IN LIMINE
A. ADMIT PUANA’S STATEMENTS WHEN PERMITTED UNDER

TERMS OF PROFFER AGREEMENT
Pursuant to a proffer agreement, and with his attorney present, Puana
voluntarily interviewed with the United States on October 4, 2018, and October 25,
2018. During those proffer sessions, Puana generally denied knowing that
McKinney and DeRego were selling the prescription drugs from him (and instead
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claimed that everyone was taking advantage of him). However, Puana made the
following admissions, among others:
• He was an addict who diverted a lot of drugs to himself; as a physician, he

took advantage of his position.
• He was a big-time cocaine user and “trinity” user;6 he bought cocaine in Hilo
from women in bars and from employees at his pain clinic (later saying he
purchased 90% of his cocaine from a specific clinic employee); he did a line
of cocaine in front of an HPD officer; he has done cocaine with Katherine
Kealoha approximately 3-4 times; he was taking up to 20 pills of opioids a
day; at the time of the interview, Puana had just returned from 30 days at a
drug/alcohol rehabilitation facility (the Betty Ford Clinic in Minnesota).
• He treated some of his patients off the books and outside the Puana Pain
Clinic; he never told his ex-spouse and business partner, Dr. Lynn Welch.
• The Notebook at the pain clinic was his and was an account of the record of
what actually occurred with each off-the-book patient. Puana’s ex-spouse,
Lynn Welch, did not know about the Notebook until Puana called her from
the Betty Ford Clinic and asked her to retrieve it from a locked closet at the
clinic.
• DeRego was one of Puana’s off-the-books patients. He originally gave

DeRego scholarship money for DeRego’s children to attend the private
school. Puana stopped funding that scholarship after some time. Puana stated
that DeRego and Rodriguez continued to fund the school tuition by getting
additional jobs.
• McKinney was Puana’s lifetime friend; Puana spent approximately 300+ days
a year at McKinney’s house during his teenage years. Puana gave McKinney
fentanyl patches; McKinney did not like the patches, so Puana then switched
to oxycodone.
6
Here, the reference to “trinity” refers to the contemporaneous use of cocaine,
opioids, and alcohol, seen as a method of balancing drug effects: opioids and alcohol
to bring down and cocaine to bring up. As the United States’ addiction expert
explains in the full report provided to the defense, adding an opioid to alcohol and
cocaine would “add another layer of euphoria[.]”
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• The Xanax, oxycodone, and fentanyl found at CC4’s house were all from
Puana’s supply. Puana brought fentanyl to Oahu in his carry-on luggage when
he visited McKinney; the purpose of the fentanyl was to wean McKinney off
the oxycodone.
At trial, in the event Puana triggers the provision of the proffer agreement
permitting introduction of these statements, the United States hereby moves to
introduce his statements. The proffer agreement governing Puana’s statements
provides, in pertinent part:
3. I understand that should any prosecutions be brought against me

by the United States, it will not offer in evidence in its case-in-chief, or
in connection with any sentencing proceeding for the purpose of
determining an appropriate sentence, any statements made by me
during the proffer, except in a prosecution for false statements,
obstruction of justice or perjury with respect to any acts committed or
statements made during or after the proffer meeting or testimony given
after the proffer meeting.
4. Notwithstanding Item 3 above: (a) the United States may use

information derived directly or indirectly from the meeting for the
purpose of obtaining leads to other evidence, which evidence may be
used in any prosecution of me by the United States; and (b) the United
States may use statements made by me at the meeting and all evidence
obtained directly or indirectly therefrom for the purpose of cross-
examination should I testify in any proceeding, or to rebut any evidence
offered by or on my behalf in connection with the trial and/or
sentencing, should any prosecution of me be undertaken.
Exhibit 1 (emphasis added). In the event the provisions of Paragraph 4(b) are
triggered at trial, the relevant statements from Puana’s proffer should be admitted.
Admitting the statements is squarely permitted by Ninth Circuit law. For
instance, in United States v. Rebbe, 314 F.3d 402, 404-405 (9th Cir. 2002), a tax
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accountant who was exploring the possibility of a plea made two proffers pursuant
to proffer agreements with a provision that allowed the government to use proffer
statements “to rebut any evidence, argument or representations offered by or on
behalf of your client in connection with the trial. . . .” Id. at 404. During his proffers,
Rebbe admitted that he advised a client to create two business accounts, directed
where certain checks should be deposited, knew the corporate tax returns he
prepared did not accurately reflect the client’s payroll, and created fake deposit slips
for a business account. Id. He was subsequently indicted for conspiracy and
preparation of false tax returns. Id. At trial, Rebbe did not testify, but cross-examined
government witnesses, called his own witnesses, and presented evidence
inconsistent with his proffer statements. Specifically, Rebbe’s evidence implied that
the client had the financial expertise and sophistication to have committed the crimes
independently, that Rebbe did not know about the second business account, and that
he had not created the fake deposit slips. Id. at 406. Pursuant to the proffer
agreement, the district court allowed the government to introduce Rebbe’s proffer
statements on those subjects in rebuttal. Id. at 405.
The Ninth Circuit upheld the admission of that evidence, holding that “the
admissibility of the proffer statements was triggered if Rebbe or his attorney
presented any evidence or made any arguments and/or representations at trial that
were inconsistent with his proffer statements.” Id. at 407; see also United States v.
Krilich, 159 F.3d 1020, 1025 (7th Cir. 1998) (finding use of defendant’s proffer
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statements appropriate where defendant presents a position through argument or
cross-examination). The Court’s holding was based on the implications of testimony
elicited by the defense. Id. at 407 (defendant elicited testimony “implying that [his
client] possessed the financial expertise and sophistication” to execute the scheme
independently, and testimony “implying that Rebbe possessed no knowledge about”
the bank account where unreported income was deposited). The Court noted that
“the use of proffers in rebuttal encourages criminal defendants to present defenses
at trial that are not fraudulent,” and that proffer agreement provisions allowing such
use “may help ensure that criminal defendants make proffers to the government that
are straightforward and honest.” Id. at 408; see also United States v. Cha, 769 F.
App’x 435, 436 (9th Cir. 2019) (unpublished) (“Cha’s proffer agreement allowed
the government to use his proffer statements to ‘refute or counter . . . any . . .
statement or representation offered by or on behalf of’ Cha. Because Cha’s attorney
made assertions at trial that were inconsistent with Cha’s proffer statements, the
district court did not err in admitting those statements into evidence.”).
The same reasoning applies here. The parties’ proffer agreement permits the
United States to use his proffer statements in two separate scenarios: (1) “should [he]
testify in any proceeding”; or (2) “to rebut any evidence offered by or on my behalf
in connection with the trial . . . .” Exhibit 1. These are broad categories permitting
impeachment that encourage Puana “to present defenses at trial that are not
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fraudulent.” Rebbe, 314 F.3d at 408. Therefore, the Court should allow such
impeachment where these categories are triggered.7
B. ADMIT PUANA’S NOTEBOOK CONTAINING OFF-THE-BOOKS

PATIENT NOTES
As mentioned previously, while in rehab, Puana called Dr. Welch and asked
her to retrieve certain items from the pain clinic and bring them to his house. One
such item was a notebook (the “Notebook”) Puana kept on the top shelf of a closet
which stored controlled substances. According to Dr. Welch (and as Puana admitted
in his proffer session), Dr. Welch did not know that the Notebook existed before
Puana directed her to it and asked her to retrieve it for him. Dr. Welch reviewed the
Notebook, recognized Puana’s handwriting inside, and saw what appeared to be
thousands of pills dispensed by Puana to his friends. According to Dr. Welch,
keeping a secret ledger of prescriptions was outside the established practice of the
clinic and did not comport with recognized procedures. Dr. Welch also noticed that
her own signature appeared to have been forged inside the Notebook in several
places. Dr. Welch made a copy of the Notebook and provided it to the United States,
and then gave the Notebook to her attorney. Thereafter, upon returning from rehab,
Puana regained possession of the Notebook, which he brought along to a later proffer
session with the United States.
7
For example, if Puana elicits testimony from a government witness on cross
examination that can be rebutted by Puana’s proffer statements, those proffer
statements should be admitted.
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The United States moves to admit the copy of the Notebook provided by Dr.
Welch. It contains statements by Puana centrally relevant to issues presented in the
case—e.g., whether the charged distributions were outside the usual course of
professional practice and not for legitimate medical purposes. Maintaining a secret
log of off-the-books distributions to friends bears directly on those considerations.
Additionally, the Notebook contains entries from Puana which corroborate
witnesses’ testimony about the controlled substances he was providing. For instance,
McKinney’s clinic prescription history does not show prescriptions for fentanyl
patches. But the Notebook—referring to McKinney by his initials “CM”, and
consistent with McKinney’s claims—shows fentanyl going to McKinney. The
Notebook also includes entries for Katherine Kealoha, Joshua DeRego, and Elana
Rodriguez—all charged conspirators in the distribution conspiracy. Moreover, Dr.
Welch’s testimony that her signature was forged several times in the Notebook is
strong evidence that Puana knew the Notebook was improper, reveals his
consciousness of guilt in maintaining it, and establishes Puana’s efforts to provide
himself cover for his wrongful diversion of controlled substances.
The requisite foundation for introducing the Notebook is straightforward—
Dr. Welch will testify about Puana’s request to retrieve it, finding it in the location
he described, and recognizing his handwriting inside. Dr. Welch is familiar with
Puana’s handwriting given their prior marital relationship (which ended in 2016).
See, e.g., Fed. R. Evid. 901(b)(2) (finding sufficient for authentication a
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“nonexpert’s opinion that handwriting is genuine, based on a familiarity with it that
was not acquired for the current litigation”); United States v. Cervantes, -- Fed.
App’x --, 2021 WL 2666684, at *2 (9th Cir. June 29, 2021) (“As an initial matter,
we find no merit in Defendants’ objections to Feeney's testimony identifying the
voices and handwriting of various NF members, including Sheldon Villanueva, one
of two incarcerated “overseers” who ran NF. These are proper subjects for lay
opinion testimony, see FED. R. EVID. 901(b)(2), (5), and the district court did not
abuse its discretion in concluding that Feeney’s familiarity with the relevant voices
and handwriting, even if limited, was sufficient to provide a foundation for his
identifications.”); United States v. Harris, 786 F.3d 443, 446 (6th Cir. 2015) (“[a]
lay witness may authenticate or identify a piece of handwriting provided that his
familiarity with the handwriting was not acquired for the current litigation”)
(quotations omitted).
C. ADMIT EXPERT TESTIMONY
The United States moves to admit the testimony from the witnesses identified
below. The United States does not believe that each of these witnesses will in fact
offer “expert” testimony as contemplated by Fed. R. Evid. 702. But in an abundance
of caution, the United States has previously given notice for each of these witnesses
and includes them here to avoid any unnecessary delay at trial.
Before admitting expert testimony into evidence, the district court must
perform a “gatekeeping role” of ensuring that the testimony is both “relevant” and
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“reliable” under Rule 702. United States v. Ruvalcaba-Garcia, 923 F.3d 1183, 1188
(9th Cir. 2019). “Relevancy simply requires that ‘the evidence logically advance a
material aspect of the party’s case.” Id. (citation omitted). These standards are met
for each of the witnesses below.
1. Gregory R. Polston, MD
Dr. Gregory Polston has over 25 years of experience as an anesthesiologist.
He currently practices pain medicine—the same practice as Puana—full time at the
University of California, San Diego. He is also the Section Chief of the pain service
provided at the Veterans Medical Center in La Jolla, California. Dr. Polston is a
member of several professional medical societies, including the American Academy
of Pain Medicine. He is a frequent presenter on topics involving pain medicine and
has co-authored chapters of various medical texts and journal articles dealing with
pain medicine.
Dr. Polston has reviewed various records pertaining to Puana’s treatment of
patients at the pain clinic. His opinion is that Puana’s prescriptions to his co-
conspirators were without a legitimate medical purpose and outside the usual course
of professional medical practice. Dr. Polston will testify to the requirements and
regulations—the standard of care—for prescribing controlled substances for pain.
That includes the necessity of establishing a physician-patient relationship with
patients, including the need for clinical indications, physical examinations, clinic
visits, and other documentation required for the prescription of controlled
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substances. Dr. Polston will also testify that based on a review of medical records
from the clinic, the prescriptions of controlled substances to certain patients—
including McKinney, DeRego, Rodriguez, and Katherine Kealoha—did not appear
to be for legitimate medical purposes. Rather, in Dr. Polston’s opinion, Puana
appears to have used his medical practice as a cover for the unauthorized distribution
of controlled substances for himself and others without medical necessity.
One “glaring” signpost of the “outside the usual course” analysis according to
Dr. Polston is the existence of the Notebook. “This document is not a medical
record,” he states in his report. “Medical records are not hidden in a ‘closet.’” He
states, “[t]his notebook appears to simply be Dr. Rudolph Puana[’s] personal log and
in no way should be considered a legitimate medical record.”
Dr. Polston also reviewed the clinic records pertaining to the co-conspirators.
With regard to McKinney’s treatment, Dr. Polston discovered various deviations
from the standard of care, including but not limited to: (1) the record of McKinney’s
first exam states that Dr. Lynn Puana (now Lynn Welch) referred McKinney, but
there is no record that McKinney was ever seen by Welch; (2) while the initial visit
notes document no history of substance abuse, this is in conflict with McKinney’s
testimony that Puana introduced him to cocaine in approximately 2012; according
to Dr. Polston, these statements call into question the validity of everything in
Puana’s medical record for McKinney and make it appear the records were created
to justify prescriptions of controlled substances to McKinney; (3) the intervals
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between McKinney’s purported visits to the clinic were not reasonable; (4) other
purported visit notations fail to document what medication is being prescribed and
fail to note other necessary details; and (5) certain prescriptions which show up in
prescription databases are not reflected in McKinney’s patient notes, an “obvious
extreme departure from the standard of care,” “clearly show[ing] the prescribing of
controlled substances outside the usual course of practice.”
With regard to Elana Rodriguez’s “treatment,” Dr. Polston observes that her
medical record shows a 13-month gap between her first alleged visit to the clinic and
her second. And the notes for the second visit do not “report if the patient has been
using opioids during the 13-month interval history, lacks vital signs, lacks a physical
exam and does not indicate the dose of oxycodone prescribed.” Dr. Polston also
observes that the alleged basis for Rodriguez’s treatment—Osgood-Schlatter
Disease—is “usually a benign diagnosis of adolescents,” calling into question the
need for “225 mg of morphine equivalents per day” for Rodriguez “over multiple
years.” Dr. Polston also observed additional discrepancies in Rodriguez’s medical
record, including Puana’s report of a urine drug screen on July 1, 2014, but no
corresponding lab report validating the screening in the file.
Dr. Polston found similar significant deviations from the standard of care for
charged co-conspirators Joshua DeRego and Katherine Kealoha, in addition to
another individual who received substantial amounts of oxycodone from Puana,
Waylon Kealoha (no known relation).
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Dr. Polston’s testimony about the standard of care in the pain practice
profession, his review of select patient files from the clinic, and his opinions as to
Puana’s conduct will aid the jury in understanding Puana’s violations of professional
standards for the charged offenses. Given Puana’s status as a medical practitioner,
the United States must establish not only that Puana distributed controlled
substances, but also that: (1) the distribution of those controlled substances was
outside the usual course of professional practice and without a legitimate medical
purpose; and (2) that Puana 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). To prove these elements, it is
therefore helpful to the jury to understand the professional standards against which
Puana’s conduct should be compared, and it is proper for Dr. Polston to opine on the
propriety of the prescriptions to the co-conspirators. See id. at 1007 (“[W]e do not
agree that evidence of the governing standard of care is irrelevant or prejudicial. To
the contrary, only after assessing the standards to which medical professionals
generally hold themselves is it possible to evaluate whether a practitioner’s conduct
has deviated so far from the ‘usual course of professional practice’ that his actions
become criminal.”).
For instance, in United States v. Diaz, 876 F.3d 1194 (9th Cir. 2017), an expert
testified that a pain doctor’s prescriptions were written outside the usual course of
practice and without a legitimate purpose. On appeal, the defense argued that the
20
961
expert “impermissibly testified about whether [the defendant] distributed controlled
substances outside the course of professional practice,” in that such testimony was
testimony on an ultimate issue of law. The Ninth Circuit disagreed, holding 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.” Id.
at 1199. And while the expert “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.” Id. Further, the Ninth Circuit found that 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.” Id. at 1199; see also United States v. Garrison, 888
F.3d 1057, 1064 (9th Cir. 2018) (“We do not consider this to be a close case on
sufficiency of evidence. As to the underlying violation, there was expert testimony
that Garrison acted outside the scope of usual medical practice and that he
participated in distributing OxyContin in an alarmingly high volume and strength
for no legitimate medical purpose.”); United States v. Ridgill, 781 Fed. App’x 641,
642 (9th Cir. 2019) (unpublished) (“Dr. Munzing’s testimony was relevant because
21
962
it aided the jury in assessing whether the prescriptions at issue were written for an
illegal purpose. The fact Dr. Munzing never examined either of the confidential
sources does not undermine the admissibility of his testimony because he testified
as an expert witness, not as a treating physician.”).
2. Kevin Kunz, MD, MPH
Dr. Kevin Kunz is a Board-Certified physician specializing in Preventative
and Addiction Medicine. He also holds a Masters Degree in Public Health. Dr. Kunz
is a Diplomate of the American Board of Preventative Medicine with a specialty in
addiction medicine and a Distinguished Fellow of the American Society of
Addiction Medicine. Dr. Kunz has more than 25 years of experience as a physician
specializing in addiction medicine. He holds an appointment as an associate clinical
professor in the Department of Psychiatry at the University of Hawaii, a senior
consultant for the Hawaii Opioid Response Network, and an addiction medicine
physician at the West Hawaii Community Health Center. The United States’ notice,
filed at ECF No. 163, contains further background on Dr. Kunz’s training and
experience.
In this case, Dr. Kunz reviewed various records and witness statements to
determine whether Puana was “addicted” to a controlled substance, as the United
States must establish for the firearms charge in Count 54. In Dr. Kunz’s opinion,
Puana was “addicted to opioids, alcohol, and cocaine (alone or all 3 simultaneously)
22
963
for a number of years, going back possibly as far as July, 2007. And for cocaine and
opioids at least as far back as 2014.”
As for opioid addiction, using the DSM-5 Diagnostic Criteria, Dr. Kunz
concluded that Puana was “severely” addicted. That was premised on facts including
the large amount of opioids he was taking (10 pills a day); the tolerance he must
have built up to take such a high amount of pills (“[n]o human could take the amount
of opioids [Puana] used without being tolerant. The high doses . . . would have to
have been preceded by lower doses that became ineffective in achieving the desired
effect”); and noticeable withdrawal symptoms (“[Puana] forged [Welch’s] signature
to acquire opioids for a diagnosis of restless legs syndrome (RLS) . . . . Opioids are
not a primary treatment for RLS. . . . Withdrawal from opioids includes very restless
legs (“kicking”). It is reasonable to assume that [Puana] was having opioid
withdrawal and diverted opioids for his own use to relieve it”). Dr. Kunz made
similar findings, detailed in the report provided to the defense, with respect to
Puana’s alcohol addiction and cocaine addictions.8
Further, Dr. Kunz observes that a medical practitioner with a substance abuse
disorder “risks incompetency” in performing their professional duties. And
8
While the alcohol addiction itself is not a required element of the addict in
possession charge, Puana’s addiction to alcohol is inextricably intertwined with his
addiction to controlled substances. Indeed, as mentioned previously regarding the
“trinity,” Puana used the alcohol, cocaine, and opioids together to achieve desired
euphoric results.
23
964
specifically as to Puana, based on a review of discovery material, “it is clearly
apparent . . . that Dr. Puana drifted into incompetence in virtually all domains. This
was certainly the result of his impairment caused by multiple SUDs.”
The United States anticipates that the bulk of facts underlying Dr. Kunz’s
opinions will be admitted through witness testimony at trial, whether through Dr.
Welch, McKinney, DeRego, Rodriguez, or others. And to the extent his opinions are
premised on any specific facts not admitted at trial, that is permitted by Rule 703.
Indeed, “[e]xperts may offer opinions based on otherwise inadmissible testimonial
hearsay if experts in the particular field would reasonably rely on those kinds of facts
or data in forming an opinion on the subject, Fed. R. Evid. 703, and if they are
applying [their] training and experience to the sources before [them] and reaching
an independent judgment, as opposed to merely acting as a transmitter for
testimonial hearsay.” United States v. Llerenas, 743 F. App’x 86, 90 (9th Cir. 2018)
(citing cases; internal citations and quotations omitted). Dr. Kunz’s anticipated
testimony falls squarely within this category. It is reasonable for Dr. Kunz to rely on
statements from Dr. Welch and others with personal knowledge of Puana’s history
of abuse to come to a conclusion as to Puana’s SUDs. For instance, the Advisory
Committee Notes make clear that physicians commonly rely on hearsay in their
practice and, as a consequence, physicians should be permitted to rely on hearsay in
court. See Advisory Committee’s Note, Rule 703 (“Thus a physician in his own
practice bases his diagnosis on information from numerous sources and of
24
965
considerable variety, including statements by patients and relatives, reports and
opinions from nurses, technicians and other doctors, hospital records, and X rays.
Most of them are admissible in evidence, but only with the expenditure of substantial
time in producing and examining various authenticating witnesses. The physician
makes life-and-death decisions in reliance upon them. His validation, expertly
performed and subject to cross-examination, ought to suffice for judicial
purposes.”).
3. Interstate Nexus Expert Joseph Villagomez
For purposes of the interstate nexus requirement under Title 18, United States
Code, Section 922(g), see, e.g., Ninth Cir. Model Jury Inst. 8.65, the United States
intends to call ATF Special Agent Joseph Villagomez to testify as described in the
United States’ notice filed at ECF No. 163. Based on his training and experience,
and individual review of the firearms in the indictment, SA Villagomez will testify
that each of the firearms was manufactured outside the State of Hawaii and thereby
traveled in interstate commerce.
4. DEA Diversion Investigator Yekaterina Blissard
Yekaterina Blissard has been employed with the Drug Enforcement
Administration as a Diversion Investigator since 2017. She has training and
experience in investigating drug diversions by medical professionals, as outlined
further in the United States’ notice filed at ECF No. 163. At trial, the United States
expects DI Blissard to testify to the categories of items outlined in the notice letter,
25
966
e.g., DEA registration requirements, Puana’s registration numbers, drug scheduling,
a description of the drugs pertinent to the charges in the Superseding Indictment, and
her review of prescriptions written by Puana related to this matter. With regard to
this final category, DI Blissard analyzed records of prescriptions written by Puana
from various sources—including Hawaii’s Prescription Drug Monitoring Program
(PDMP) and several pharmacies—and summarized those records into chart form.
See Exhibits 2-4. The United States does not believe that any of this testimony is
“expert” testimony, but has provided notice of this anticipated testimony
nonetheless.
5. Forensic Accountant Laurice Otsuka
The United States intends to call FBI Forensic Accountant and Certified
Public Accountant Laurice Otsuka to introduce certain summary charts she created
for purposes of trial.
First, Ms. Otsuka created a summary chart showing Joshua DeRego and Elana
Rodriguez’s private school tuition payments between 2012 and 2019. See Exhibit 4.
This chart is based on certified records obtained directly from the school. As
mentioned above, this chart shows that DeRego and Rodriguez made tuition
payments at a much better rate during the timeframe they received prescriptions from
Puana, corroborating their testimony that they were reselling those prescriptions at
Puana’s direction. For purposes of her testimony, Ms. Otsuka may describe basic
accounting/financial terms when explaining how she created the chart.
26
967
Second, Ms. Otsuka created a summary chart, also based on certified records,
which weaves together in a chronological timeline the prescriptions from Puana and
the school tuition payments. See Exhibit 5.
Third, Ms. Otsuka created a summary chart, again based on certified records,
which combines Puana’s prescriptions to McKinney and their respective travel
records (which shows them traveling to each other’s islands, or jointly, around the
time of a number of prescriptions, corroborating McKinney’s testimony). See
Exhibit 6.
Ms. Otsuka’s testimony is not expert testimony under Rule 702 necessitating
advanced notice or the exercise of the Court’s “gatekeeping” function. See, e.g.,
United States v. Rizk, 660 F.3d 1125, 1131 (9th Cir. 2011) (“Rule 1006 permits
admission of summaries based on voluminous records that cannot readily be
presented in evidence to a jury and comprehended”); United States v. Hamaker, 455
F.3d 1316, 1331-32 (11th Cir. 2006) (permitting FBI financial analyst to testify
under Rule 701 about summaries prepared from Quickbooks and voluminous time
sheets, and mathematical calculations performed on such data); United States v.
Caballero, 277 F.3d 1235, 1246-47 (10th Cir. 2002) (FBI analyst permitted to testify
under Rule 701 about summaries of bank records, client files and billing records).
The United States nonetheless includes her anticipated testimony here in an
abundance of caution.
27
968
6. Lynn Welch, MD
As is outlined previously, Dr. Lynn Welch, Puana’s former spouse and
business partner, will be called to testify to various facts at trial. While she is a
licensed medical doctor, the United States does not intend to elicit expert testimony
from her. Rather, Dr. Welch will testify as a percipient witness to relevant facts, e.g.,
statements and conduct of Puana, retrieving the handgun and Notebook from the
clinic, and her knowledge of the practices and procedures of the clinic. As to the
clinic’s practices and procedures, the United States intends to ask questions such as,
“did the clinic require patients receiving controlled substances to be periodically
drug tested?”; “did the clinic require regular interactions with patients receiving
opioid prescriptions?; “did standard clinic practice include maintaining off-the-
record logs of patient visits?” The United States also intends to ask Dr. Welch “why
or why not” follow-ups to these types of questions. This testimony is relevant and
admissible for purposes of proving Puana’s deviations from the specific standard of
care employed by the clinic. This proposed testimony is not expert testimony under
Rule 702—rather, it is based on Dr. Welch’s own personal knowledge and
involvement in the day-to-day operations of the pain clinic.
The advisory committee notes to Rule 701 confirm that Dr. Welch’s
knowledge about the practices and procedures used by her clinic does not create
expert testimony. In those notes, the advisory committee recognized that a business
owner may provide lay testimony about her “knowledge and participation in the day-
28
969
to-day affairs of the business,” and that this testimony “is admitted not because of
experience, training or specialized knowledge within the realm of an expert, but
because of the particularized knowledge that the witness has by virtue of his or her
position in the business.” FRE 701, committee notes to 2000 amendments.
Because a private pain clinic is a business like any other, Dr. Welch’s
ownership of it enables her to testify about its practices and procedures “by virtue of
. . . her position in the business” and “not because of experience, training or
specialized knowledge within the realm of an expert[.]” Id. That Dr. Welch is also a
physician does not change the analysis. Like any other “species of percipient
witness,” treating physicians “may testify to and opine on what they saw and did
without the necessity of the proponent of the testimony furnishing a written expert
report.” Goodman v. Staples, 644 F.3d 817, 819 (9th Cir. 2011). In any event, the
United States did previously provide notice of Dr. Welch’s testimony. See ECF No.
163.
D. ADMIT RULE 404(b) EVIDENCE
During the same time period that Puana was unlawfully distributing
oxycodone to McKinney and DeRego/Rodriguez, Puana was also distributing
significant quantities of oxycodone to DeRego’s parents. The following draft chart
shows the outsized percentage of oxycodone prescriptions Puana wrote—54% of the
total 30 mg oxycodone prescribed—for individuals within his immediate circle of
29
970
influence: McKinney, DeRego’s wife, and DeRego’s parents (TD and KD; names
redacted on chart for this filing):
See Exhibit 4 at 1.
30
971
The percentage of pills flowing to these individuals tends to establish Puana
was treating them separately than a standard patient at the clinic, e.g., treating them
outside the prevailing standards of care. While KD has indicated he was seen by the
clinic and personally used the prescriptions from Puana, TD’s statements show
Puana was writing prescriptions for her without diagnosing any medical need or
otherwise following proper standards of care.
Specifically, according to TD, she was addicted to drugs in her younger years.
Given that addiction, when she later had surgeries following a health diagnosis, her
treating physician would not prescribe her pain pills. Thereafter, at a family event,
TD told Puana about her situation and Puana said he would “help her out” by writing
her scripts. He did so “for years.” TD just “took [the pills] and didn’t think anything
of it.” She ended up getting addicted to them. “It took me a long time to get off of
them, but I’m off of them.” TD confirmed that she “never did go to see [Puana] at
his clinic,” and that he never performed any medical examinations of her before
writing scripts. After some time, she “couldn’t live without” the prescription pills.
However, one day, Puana stopped writing the prescription and she “had no choice”
but to stop, “because [she] couldn’t go anywhere else.” The prescriptions of
oxycodone to TD started around October 2013 and continued until approximately
April 2016. As reflected in the Hawaii PDMD records, TD received over 1,000 more
30mg tablets of oxycodone than any other patient of Puana. See Exhibit 4 at 2.
31
972
Despite TD’s statements that she never went to the clinic, records obtained
from the Puana Pain Clinic reveal there are a number of patient records, signed by
Puana, which purport to document various clinic visits by TD. In other words,
similar to entries in the Notebook, the United States intends to establish these records
were fabricated to provide a false paper trail for Puana’s wrongful distributions.
E. ADMIT BUSINESS RECORDS VIA 902(11) CERTIFICATIONS
In the United States’ notice filed at ECF No. 163, the United States notified
the defense that it intended to rely on various certificates of authenticity to admit
certified business records. The United States included an itemized list of certified
records that it intended to admit (and including citations to discovery). The United
States hereby moves for an order finding the records identified in the United States’
notice to be self-authenticating under Rule 902(11) and admissible at trial, subject
to relevancy and other contemporaneous non-foundational objections by Puana at
trial.
F. ADMIT SUMMARY CHARTS
The United States moves to admit several summary charts of voluminous data
under Federal Rule of Evidence 1006 and/or Federal Rule of Evidence 611(a). Under
Rule 1006, “the proponent of a summary must demonstrate the admissibility of the
underlying writings or records summarized, as a condition precedent to introduction
of the summary into evidence under [Federal Rule of Evidence] 1006.” United States
v. Johnson, 594 F.2d 1253, 1257 (9th Cir. 1979). And, separately, Rule 611(a)
32
973
provides this Court discretion over the “mode and order of . . . presenting evidence
so as to (1) make those procedures effective for determining the truth [and] (2) avoid
wasting time.” See United States v. Anekwu, 695 F.3d 967, 982 (9th Cir. 2012) (“We
have also ‘elsewhere recognized a district court’s discretion under [Federal Rule of
Evidence] 611(a) to admit summary exhibits for the purpose of assisting the jury in
evaluating voluminous evidence.’”) (citing United States v. Boulware, 470 F.3d 931,
936 (9th Cir. 2006) (vacated on other grounds in Boulware v. United States, 552 U.S.
421 (2008)).
The United States has attached draft versions of the proffered summary charts
as Exhibits 2-7. The final versions of the charts will be made available to the defense
reasonably ahead of trial. The information from these charts comes from certified
business records previously produced to the defense.
Chart Foundation Relevance Volume of Records
Chart 1 – Certified Summarizes HI-PDMP excel

Prescriptions to business prescription history spreadsheet with
McKinney records with co-conspirator approximately 3,120
McKinney entries, and
(Exhibit 2 approximately nine pages
attached) of records from Kailua
Family Pharmacy
Chart 2 – Certified Summarizes HI-PDMP excel
Prescriptions to business prescription history spreadsheets with
DeRego and records with co-conspirators approximately 3,120
Rodriguez DeRego and entries and 22 entries,
Rodriguez and approximately five
(Exhibit 3 pages of records from
attached) Longs Drugs and
33
974
Foodland Medicine
Cabinet
Chart 3 – Certified Summarizes Puana’s Excel spreadsheet of six
Oxycodone business 30 mg oxycodone years’ of HI-PDMP data;
Prescriptions records prescription history, spreadsheet includes
Overview showing significant approximately 6,300
comparative individual entries.
(Exhibit 4 amounts going to
attached) co-conspirators and
close family
members
Chart 4 – Tuition Certified Summarizes Over approximately 230
Payments business DeRego/Rodriguez’s individual entries on
records tuition payments, DeRego/Rodriguez’s
(Exhibit 5 corroborating charges/payment
attached) testimony regarding statements.
paying tuition with
drug money
Chart 5 – Tuition Certified Summarizes Puana’s Data from Chart 2,
Payments and business oxycodone combined with data from
Prescription records prescriptions to Chart 4
Records Rodriguez in
chronological
(Exhibit 6 correlation to school
attached) tuition payments
Chart 6 – Certified Summarizes Summarizes over 200
McKinney/ Puana business McKinney/Puana pages of travel records
Travel Records records travel records, received from Hawaiian
and Prescription showing trips Airlines, combined with
Records to/from respective data from Chart 1
islands around
(Exhibit 7 prescription dates
attached) and tandem
international travel
(corroborating
McKinney’s
testimony)
34
975
If the Court is not inclined to admit any particular chart as substantive
evidence, the United States seeks permission to utilize the charts as demonstrative
aids during the respective witnesses’ testimony.
G. ADMIT DRUGS AND DRUG DEMONSTRATIVES
The United States bears the burden of proving that Puana conspired with
others to distribute and dispense controlled substances, namely, a detectable amount
of oxycodone, a Schedule II Controlled Substance, a detectable amount of fentanyl,
a Schedule II Controlled Substance, and a detectable amount of alprazolam (Xanax),
a Schedule IV Controlled Substance, as alleged in Counts 1, 3 through 39, and 40
through 53. The United States intends to prove these crimes with direct evidence
seized and demonstrative evidence of the controlled substances.
First, the United States moves the Court to allow into the courtroom the
fentanyl patches seized from a co-conspirator that were obtained during the
conspiracy from Puana and his pain clinic. This evidence is relevant because it is
directly related to the crimes charged. The patches can be displayed to the jury at the
time of their admission. Since the fentanyl patches contain controlled substances,
the fentanyl patches will be managed by the federal agents in this case and will be
available to the jury at the Court’s direction. The probative value of this evidence
outweighs the risk of any unfair prejudice and will not create an undue burden on
the Court.
35
976
Second, the United States does not possess the drugs consumed during the
conspiracy – that is, the oxycodone, Xanax, and cocaine. The United Sates moves
the Court to allow the United States to display demonstrative exhibits, i.e., samples
of actual oxycodone pills, Xanax pills, and cocaine, in order to aid the jury’s
understanding of these controlled substances. This evidence is relevant because it is
directly related to the crimes charged. Testimony from witnesses familiar with
oxycodone, Xanax, and cocaine will authenticate the demonstrative exhibits to
satisfy the requirements that the exhibits are a fair and accurate depiction of the
controlled substances involved in this case. The samples of these controlled
substances can be displayed to the jury at the time of their identification and
authentication by the witness. Furthermore, the demonstrative exhibits will be
managed by the federal agents in this case and will be available to the jury at the
Court’s direction. The probative value of this evidence outweighs the risk of any
unfair prejudice and will not create an undue burden on the Court.
H. PERMIT FIREARMS IN THE COURTROOM, SUBJECT TO

SAFETY PROTOCOLS
The United States moves the Court to allow it to introduce the actual firearms
possessed by Puana to the jurors in the courtroom during trial. The United States
will abide by the Court’s instructions as to its usual safety practices for firearms in
the courtroom. Permitting the jury to see the actual firearms possessed by Puana is
relevant and necessary for purposes of establishing Puana’s knowing possession of
36
977
the firearms. The probative value is not outweighed by any risk of unfair prejudice,
much less substantially outweighed. See Fed. R. Evid. 401-03.
I. EXCLUDE WITNESSES FROM THE COURTROOM
“[A] person whose presence is shown by a party to be essential to the
presentation of the party’s cause” should not be ordered excluded from the court
during trial. Fed. R. Evid. 615. The district court may permit a law enforcement
officer to be present at the prosecution’s table during the trial proceedings under
Rule 615. See United States v. Valencia-Riascos, 696 F.3d 938, 941-42 (9th Cir.
2012). Here, FBI Special Agent Laura Salazar and FBI Forensic Accountant Laurice
Otsuka have been critical to the investigation and are considered by the United States
to be an integral part of the trial team. Thus, the United States respectfully requests
that the Court allow SA Salazar and Ms. Otsuka to be present during the entirety of
the trial. Unless Puana can make a similar showing as to any of his witnesses, the
United States requests that Puana’s testifying witnesses be excluded from the
courtroom during the trial.
J. PRECLUDE EXPERT TESTIMONY NOT PREVIOUSLY

NOTICED
To date, the United States has not received any expert notice from the defense.
Puana should be precluded from calling any experts required to be noticed.
//
//
37
978
III
CONCLUSION
For the reasons stated, the Court should grant the above motions.
Dated: July 19, 2021 Respectfully submitted,

MERRICK B. GARLAND
Attorney General
RANDY S. GROSSMAN
Acting United States Attorney
/s/ Colin M. McDonald

MICHAEL G. WHEAT
JOSEPH J.M. ORABONA
JANAKI G. CHOPRA
COLIN M. MCDONALD
Special Attorneys
38
979
UNITED STATES DISTRICT COURT

DISTRICT OF HAWAII
CR No. 19-00015-JMS-WRP
UNITED STATES OF AMERICA, CERTIFICATE OF SERVICE
Plaintiff,
v.
RUDOLPH B. PUANA,
Defendant.
IT IS HEREBY CERTIFIED that:

I, Colin M. McDonald, am a citizen of the United States and am at least
eighteen years of age. My business address is 880 Front Street, Room 6293,
San Diego, CA 92101-8893.
I am not a party to the above-entitled action. I have caused service of the
foregoing on all parties in this case by electronically filing the foregoing with the
Clerk of the District Court using its ECF System, which electronically notifies them.
I declare under penalty of perjury that the foregoing is true and correct.
Executed on July 19, 2021.
/s/ Colin M. McDonald

COLIN M. MCDONALD
39

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Case 1:19-cr-00015-JMS-WRP Document 169 Filed 07/19/21 Page 1 of 39 PageID #:

Attorneys for the United States of America

UNITED STATES DISTRICT COURT

Between 2012 and 2017, Defendant Rudolph B. Puana—a doctor on Hawaii

Island—prescribed controlled substances to approximately 995 patients. Out of

those, only 21 patients received prescriptions of 30 mg pills of oxycodone, a highly

shared a common feature—but it was not a debilitating health condition requiring

number of pills flowing from Puana to these individuals demonstrates these

legitimate medical purposes. Indeed, as those friends confirm in sworn testimony,

cocaine parties with Puana).

To be more specific, Christopher McKinney was Puana’s childhood friend.

and purchasing the cocaine.

Eventually, Puana started writing medically unnecessary prescriptions of

oxycodone to McKinney to use recreationally or sell. According to McKinney, he

pharmacy in Kailua, and the State of Hawaii’s Prescription Drug Monitoring

between April 2015 and October 2017.2

oxycodone prescriptions at a particular pharmacy in Kailua. McKinney was told it

will purchase it.”

McKinney did find someone willing to purchase, a drug dealer on Oahu

occasionally part[ying] with cocaine substances . . . .” Their children attended the

September 2015, Puana prescribed over 4,000 tablets of oxycodone (covered by

Medicaid) to DeRego’s wife, Rodriguez (who otherwise received no other

six months. And over the lifespan of the oxycodone prescriptions—around 30

Defendant’s sister, Katherine Kealoha, was also a participant in Puana’s drug

of the conspiracy, when Puana’s illegal distributions were discovered by HPD,

Puana’s role in the drug conspiracy.

controlled substances. McKinney, DeRego, and others have provided first-hand

a photo of themselves using cocaine in an outrageous place. Puana’s sister, Katherine

inpatient drug abuse treatment.

Contemporaneous with his use of and addiction to controlled substances,

contemplated firearm purchase (while describing his own firearms):

Then during the zombie apocalypses? 7mm savage rifle. I took

Puana: It all depends. I think i need to be there. Of course it’s an increase

Ummmm basically we need to go so you find a comfortable gun

That conversation with McKinney occurred in June 2018. In early August

Betty Ford for treatment.

delivered the clip as Puana requested.

Then, on October 19, 2018,5 Puana brought a cache of firearms—nine in all—

an American Classic II, 45 handgun; a Bushmaster XM15-E-25, long rifle; a

dispense controlled substances, in violation of 21 U.S.C. §§ 841(a)(1) and 846

(Count 1); distributing and dispensing oxycodone and fentanyl, in violation of 21

1347 and 2 (Counts 40-53); and being an addict in possession of a firearm, in

violation of 18 U.S.C. §§ 922(g)(3) and 924(a)(2) (Count 54).

A. ADMIT PUANA’S STATEMENTS WHEN PERMITTED UNDER

Pursuant to a proffer agreement, and with his attorney present, Puana

following admissions, among others:

• He was an addict who diverted a lot of drugs to himself; as a physician, he

• DeRego was one of Puana’s off-the-books patients. He originally gave

permitting introduction of these statements, the United States hereby moves to

introduce his statements. The proffer agreement governing Puana’s statements

provides, in pertinent part:

3. I understand that should any prosecutions be brought against me

4. Notwithstanding Item 3 above: (a) the United States may use

Admitting the statements is squarely permitted by Ninth Circuit law. For

statements “to rebut any evidence, argument or representations offered by or on

government witnesses, called his own witnesses, and presented evidence

statements on those subjects in rebuttal. Id. at 405.

admissibility of the proffer statements was triggered if Rebbe or his attorney

statements appropriate where defendant presents a position through argument or

cross-examination). The Court’s holding was based on the implications of testimony