United States v. Raymond

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA v. Criminal Action No. 21-380 (CKK) BRIAN JEFFREY RAYMOND, Defendant

MEMORANDUM OPINION AND ORDER (October 5, 2023)

Defendant Brian Jeffrey Raymond (“Defendant”) is charged by indictment with various

sex offenses allegedly committed in, among other countries, Mexico and the United States. 1 Six

of the twenty-five counts in the operative indictment charge Defendant with using “a drug,

intoxicant, [or] other similar substance” in order to render a victim unconscious before sexually

assaulting her. See generally Indictment, ECF No. 184 (Feb. 23, 2023). To prove this charge, the

Government intends to introduce expert testimony by Dr. Michael Levine, an expert in medical

toxicology. Before the Court is Defendant’s [258] Motion to Exclude the Testimony of [Dr.]

Michael Levine (“Motion” or “Mot.”). To resolve the Motion, the Court held a Daubert hearing

on October 2, 2023, at which both the defense and the Government questioned Dr. Levine. Upon

consideration of that voir dire, the parties’ briefing, the relevant legal authority, and the entire

record, the Court GRANTS IN PART AND DENIES IN PART Defendant’s [258] Motion to

Exclude the Testimony of [Dr.] Michael Levine. The Court will permit Dr. Levine to opine that

certain victims were under the influence of an intoxicant or dissociative agent, but will not permit

1 The Court assumes the reader’s familiarity with the factual and procedural background of this case. For background, the Court refers the reader to United States v. Raymond, 640 F. Supp. 3d 9 (D.D.C. Oct. 26, 2022) (“Raymond I”, United States v. Raymond, 2023 WL 3040453 (D.D.C. Apr. 21, 2023), and United States v. Raymond, 2023 WL 6294178 (D.D.C. Sept. 27, 2023). 1 Dr. Levine to opine as to the identity of a particular intoxicant or dissociative agent.

I. BACKGROUND

An investigation of Mr. Raymond began after police responded, on May 31, 2020, to

reports of a naked woman (“AV-1”) screaming on the balcony of Defendant’s residence in Mexico

City, Mexico, leased by the United States Government for Embassy employees. When Mr.

Raymond was interviewed in Mexico City by Mexican and American authorities, he indicated that

he had met AV-1 online, and the two had gone to his apartment, had drinks, and engaged in

consensual intercourse. See Raymond I, 640 F. Supp. 3d at 14. A June 2, 2020 interview with

AV-1 indicated that she had met with Mr. Raymond outdoors, and he brought wine in a backpack.

Id. After going to his apartment, where they drank more wine and ate light snacks, she could not

remember anything––including intercourse or standing and screaming on his balcony––until she

awoke in an ambulance. Id. When the Federal Bureau of Investigation (“FBI”) ran an analysis on

AV-1’s urine sample in connection with the incident, they found cocaine, methamphetamine, and

theophylline (prescribed in Mexico as a bronchial dilator asthma medication) in her system but did

not find any evidence of so-called “date rape” substances. Id. Based on the incident with AV-1,

on June 2, 2020, law enforcement executed a search warrant for Defendant’s devices. Id. at 15.

This warrant, and others, turned up a hoard of videos depicting Defendant sexually

assaulting unconscious women. Id. at 18. This recovered media establishes, the Government

claims, that Defendant has long enacted a violent sexual fetish to lure unsuspecting women through

dating applications (e.g., Tinder) to Defendant’s home, drug them, and film himself sexually

abusing them. As the initial order mandating Defendant’s detention pending trial explained,

the United States [has] proffered evidence of yet to be charged offenses that involve at least twenty-three victims including a victim who alleges sexual assault in [Mexico City]. . . . The United States began its investigation of Defendant in May of 2020 when a female reported that Defendant sexually assaulted her at a U.S. Embassy[-

2 ]rented apartment in Mexico City. . . . Further investigation into Defendant yielded the discovery of numerous videos and photographs in which Defendant appears to be filming unconscious [and nude] females. The interview of the victim in the charged offense revealed that she had no idea that defendant had filmed her or that he had pulled her bra down[,] exposing her breasts.

Detention Order at 2, ECF No. 14, United States v. Raymond, No. 3:20-mj-0442-LL (Oct. 19,

2020). As the Court explained in more detailed in its memorandum opinion denying Defendant’s

motion for release on bond pending trial, the multiplicity and the graphic nature of the video and

photo evidence is substantial: multiple women are depicted in various states of undress while

Defendant manipulates their bodies (including, but not limited to, their eyelids, mouths, and

limbs). United States v. Raymond, Crim. A. No. 21-380 (CKK), 2023 WL 304453, at *6-7 (D.D.C.

Apr. 21, 2023). At times, Defendant’s erect penis can be seen. Id. at *6.

In addition to photographic and video evidence, the Government has relied on Defendant’s

search history and interviews with witnesses and alleged victims to demonstrate that, for many, he

drugged his victims before sexually abusing him. Id. The Government claims that Defendant

researched interactions between Ambien and alcohol, and sent an inquiry to an online pharmacy

to obtain chloral hydrate, a cousin of Rohypnol (commonly called a “roofie”), and otherwise

conducted queries related to so-called “date rape” drugs generally. Id.

To demonstrate that Defendant in fact used this class of drugs on his alleged victims, the

Government intends to call Dr. Michael Levine (“Dr. Levine”). Dr. Levine is an associate

professor of emergency medicine and co-director of the Division of Medical Toxicology at the

University of California, Los Angeles. Def.’s Hrg. Ex. 4 at 1 (“Expert Report”). Over eighteen

years of practicing emergency medicine and fourteen years of practicing medical toxicology, Dr.

Levine has diagnosed “thousands” of patients regarding drug toxicity. Hrg. Trans., ECF No. 285

at 92:2-7 (“Trans’). He is also a member of the American College of Medical Toxicology, through

3 which he helps develop instruction on medical toxicology in medical schools throughout the

country. See Expert Report at 1. The Government retained Dr. Levine to offer an opinion as to

“whether each [victim’s] physical state at the time of the charged conduct is consistent with alcohol

intoxication alone [or also with] an incapacitating agent,” i.e., a “date rape” drug. 2

Dr. Levine answered this question in the affirmative as to each alleged victim.

Additionally, Dr. Levine offered the following “composite opinions:”

1. There is a clear pattern described that is consistent with intoxication from an incapacitating agent[, as opposed to alcohol alone].

2. [Although] [t]here are several possible drugs that could have been used[,] . . . the most likely scenario is gamma hydroxybutyrate (GHB), or one of its precursors.

3. Urine drug testing is not an absolute indicator of whether a substance was previously present in a patient’s system [in part because] . . . GHB is metabolized rapidly. Thus, even if AV-1’s urine did not show GHB, it certainly does not mean that GHB was not present.

Expert Report at 35-36. In reaching these opinions, Dr. Levine relied mainly on documentary

material and multimedia provided by the Government. Id. at 2. That material is voluminous,

comprising nearly a thousand files, including videos and photos of the victims at the time of their

impairment, victim statements to law enforcement, and Defendant’s communications regarding

the alleged victims before, during, and after their incapacitation. See Expert Report at 2-23.

In reviewing this material to come to his conclusions, Dr. Levine used the “differential

diagnosis” method, sometimes termed “differential etiology.” See Trans. at 142:9-14. This

method is a common process employed by clinical physicians in everyday practice to determine

the cause of a patient’s particular ailment. See Patteson v. Maloney, 958 F. Supp. 2d 169, 175

(D.D.C. 2013). After determining the patient’s ailment, a physician engages in a process of

2 The Government posed this question as to the following alleged victims: AV-1, AV-2, AV-4, AV-5, AV-6, AV-7, AV-8, AV-9, AV-12, AV-15, AV-17, AV-22, AV-23, and AV-26. 4 elimination, selecting from a number of possibilities the disease or diseases which come nearest to

explaining the patient’s symptoms. United States v. Chikvashvili, 459 F.3d 285, 193 (4th Cir.

2017). For instance, consider a patient who complains of shortness of breath and a persistent

cough––determining whether the cause is a severe disease such as lung cancer or a minor ailment

like bronchitis is differential etiology. Wendy Ertner, Just What the Doctor Ordered: The

Admissibility of Differential Diagnosis in Pharmaceutical Product Litigation, 56 Vand. L. Rev.

1227, 1240 (2003). A reliable version of this process “typically, although not invariably,” involves

a physical exam, review of a patient’s medical history, and the review of clinical tests, as necessary.

Westberry v. Gislaved Gummi AB, 178 F.3d 257, 262 (4th Cir. 1999). Here, Dr. Levine took a

more atypical course, replacing a physical exam with photos and videos of alleged victims, and

replacing a review of a patient’s medical history with victim statements to law enforcement. See

Trans. at 77:17-19. Whether this form of differential etiology has produced proper expert

testimony is the main question before the Court.

II. LEGAL STANDARD

Federal Rule of Evidence 702 governs the admission of expert testimony. The rule states

that: “[a] witness who is qualified as an expert by knowledge, skill, experience, training, or

education may testify in the form of an opinion or otherwise if: (a) the expert’s scientific,

technical, or other specialized knowledge will help the trier of fact to understand the evidence or

determine a fact in issue; (b)the testimony is based on sufficient facts or data; (c) the testimony is

the product of reliable principals and methods; and (d) the expert has reliably applied the principles

and methods to the facts of the case.” Id. The trial judge has “considerable leeway in deciding in

a particular case how to go about determining whether particular” testimony is expert testimony

and, if so, it is reliable. See Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1999).

5 This inquiry is governed by the Supreme Court’s opinion in Daubert v. Merrell Dow

Pharm., Inc., 509 U.S. 579 (1993). Under Daubert, if the Court concludes that the proposed

testimony is that appropriately delivered by an expert, the Court “is required to address two

[further] questions, first whether the expert’s testimony is based on ‘scientific knowledge,’ and

second, whether the testimony ‘will assist the trier of fact to understand or determine a fact in

issue.’” Meister v. Med. Eng. Corp., 267 F.3d 1123, 1126 (D.C. Cir. 2001). “[I]n order to qualify

as ‘scientific knowledge, an inference or assertion must be derived by the scientific method.’” Id.

“[T]he proponent of [expert] evidence . . . bear[s] the burden to prove the expert testimony

is reliable” and admissible. See Arias v. DynCorp, 928 F. Supp. 2d 10, 17 (D.D.C. 2013).

III. DISCUSSION

Defendant concedes that Dr. Levine is an expert in medical toxicology, mainly instead that

the process by which Dr. Levine came to his conclusions is insufficiently reliable. Defendant also

argues, evidently in the alternative, that Dr. Levine would offer lay, not expert, opinion. Both

arguments fail.

A. Reliability

1. Dissociative Agents Generally

It is incumbent upon the Court as gatekeeper to determine whether the proffered testimony

“is relevant, reliable, and helpful to the jury’s evaluation of such evidence.” United States v.

Morrow, 374 F. Supp. 2d 51, 60 (D.D.C. 2005) (CKK). Differential diagnosis generally fits the

bill, because it is “a tested methodology, has been submitted to peer review/publication, does not

frequently lead to incorrect results, and is generally accepted in the medical community.”

Patteson, 968 F. Supp. 2d at 175 (quoting Turner v. Iowa Fire Equip. Co., 229 F.3d 1202, 1208

(8th Cir. 2000)); see also, e.g., Gislaved, 178 F.3d at 1262-63 (holding same and collecting cases).

6 This methodology generally proceeds in two parts: general causation and specific causation. See

Raynor v. Merrell Pharms. Inc., 104 F.3d 1371, 1375-76 (D.C. Cir. 1997).

First, a particular drug must be shown to be capable of causing the symptoms at issue

generally, and then, second, a proper differential diagnosis must be employed to demonstrate that

the drug caused the symptoms at issue in the case at bar. Id. at 1376. This case does not present

any general causation issues, because the parties evidently agree that dissociative drugs (including,

but not limited to, GHB) can cause the alleged victims’ condition (namely, incapacitation). Cf.

Meister v. Med. Eng. Corp., 267 F.3d 1123, 1129 (D.C. Cir. 2001) (rejecting differential diagnosis

used to demonstrate that medical device caused form of cancer in plaintiff where expert could not

show that medical device caused cancer in general). Instead, Defendant challenges specific

causation: that Dr. Levine’s form of differential diagnosis is not reliable enough to establish that

a dissociative drug, rather than alcohol, caused each alleged victim’s incapacitation.

In effect, Defendant argues that Dr. Levine has not actually employed differently diagnosis.

By forgoing both individual interviews with any alleged victim and also additional medical tests,

Dr. Levin’s approach certainly differs from the differential-diagnosis methodology that has

generally been accepted in this Circuit. See, e.g., Raynor, 104 F.3d at 1375 (holding differential

diagnosis that anti-nausea drug caused birth defect satisfied Daubert where physician “relied upon

family history, parental background, genetic history, physical examination, pregnancy history, and

toxicology”). And, as Defendant rightly notes, Dr. Levine’s methodology also differs from that

following in each case on which the Government relies, in which medical histories and/or

toxicology reports were available. 3 See also Heller v. Shaw Indus., Inc., 167 F.3d 146, 156 (3d

3 See, e.g., Jones v. Halliburton, Civ. A. No. 4:07-2719, 2011 WL 1841148, at *2 (S.D. Tex. May 13, 2011) (in evaluating cause of post-traumatic stress disorder, considering outpatient interview with plaintiff, medical records, and patient history); Ashely v. City of Bridgeport, 473 F. Supp. 3d 41, 48 (D. Conn. 2020) (in determining whether plaintiff had ingested drug 7 Cir. 1999) (finding differential diagnosis reliable where attending physician “order[ed] standard

laboratory tests, physically examin[ed] the plaintiff, t[ook] medical histories, and consider[ed]

alternative causes of the plaintiff’s illness”).

Though a point well taken, the defense nevertheless mistakes a sufficient condition for a

necessary one. Although certain diagnostic techniques are sufficient, that does not mean that those

techniques, and only those techniques, are necessary. As another Court of Appeals has explained,

“a doctor’s differential diagnosis is reliable and admissible where the doctor:”

1. Objectively ascertains, to the extent possible, the nature of the patient’s injury;

2. Rules in one or more causes of the injury using a valid methodology; and

3. Engages in standard diagnostic techniques by which doctors normally rule out alternative causes to reach a conclusion as to which cause is most likely.

Best v. Lower’s Home Ctrs., Inc., 563 F.3d 171, 179 (6th Cir. 2009) (cleaned up) (emphasis added).

Stated differently, so long as the diagnostic techniques the expert did use “provide ‘good grounds’

for the expert’s conclusion, [the] testimony should be admitted.” Heller, 167 F.3d at 158.

Here, Dr. Levine “[o]bjectively ascertained, to the extent possible, the nature of” each

alleged victim’s incapacitation by viewing Defendant’s contemporaneous video and photo records

of their incapacitation. Trans. at 77:17-19. Dr. Levine further used standard diagnostic markers

to determine whether alcohol or a dissociative agent caused their incapacitation. For instance, Dr.

Levine noted that, when Defendant manipulated an alleged victim’s eyelid, she remained

unconscious, even though, in his expert opinion, manipulation of an eyelid is “an incredibly

noxious stimuli.” Trans. at 84:23-85:4. Similarly, Dr. Levine noted, that alleged victims appeared

to be in a state of “cataplexy,” in which an alleged victim remained in a “posed” state, staying

phencyclidine, expert toxicologist’s reliance on toxicology report rather than video evidence of incident satisfied Daubert). 8 “perfectly still,” which is not indicative of alcohol intoxication. Id. at 86:1-9. Because Defendant

opened various alleged victims’ eyelids, Dr. Levine also observed an alleged victim’s eye

movements and pupillary size, which are also indicative of certain sorts of intoxicants. Id. at

86:22-87:9.

Lastly, simple evaluation of a patient’s physical state is sufficient for Dr. Levine, and any

other physician, to return a tentative, reliable diagnosis in these circumstances. For the purposes

of diagnosis in an emergency room, Dr. Levine explained that he almost never orders a toxicology

test, based on the fact that “rapid urine drug screens are not helpful” and “a comprehensive drug

test routinely takes five to ten days to come back.” Trans. at 89:10-22. Nevertheless, Dr. Levine

can, like any other doctor evaluating a patient, reliable return a diagnosis as to drug toxicity without

the benefit of toxicology reports. Id. at 89:23-90:5. Although the use of toxicology reports may

be more advantageous, or might result in an even more reliable diagnosis, review of video evidence

of an alleged victim’s state more than adequately approximates the in-person physical exam that

is the standard diagnostic technique in this field of medicine. Cf. Kumho Tire Co., Ltd. v.

Carmichael, 526 U.S. 137, 152 (1999) (explaining, in dicta, that key question in Daubert analysis

is whether expert “employs in the courtroom the same level of intellectual rigor that characterizes

the practice of an expert in the relevant field”).

In the context of criminal cases, this result should hardly be surprising. A victim may not

be available for a physical examination, and toxicology reports may have never been conducted in

time to detect a particular substance. See, e.g., Chikvashvili, 859 F.3d at 293 (rejecting challenge

to Government expert who relied on certain medical records rather than physical examination of

victim). Where sufficient sources are available to an expert medical witness to opine on the cause

of a particular ailment, whether that expert should or could have used additional sources “go[es]

9 to weight, not admissibility.” See id.; see also, e.g., Roney v. Wendy’s Old Fashioned Hamburgers

of N.Y., Inc., Civ. A. No. 2:05-109-GZS, 2006 WL 696251, at *5 (D. Me. Mar. 17, 2006) (in claim

that fast food restaurant caused plaintiff’s kidney failure by undercooking hamburger, holding

admissible differential diagnosis based broadly on “useful” “inferences” even though expert

admitted that opinion would be stronger if it were based on a bacterial culture). Dr. Levine offers

ample explanation for why alcohol could not have caused an alleged victim’s incapacitation. To

the extent Defendant disagrees with the efficacy of that methodology, that argument may be made

to the jury, but it does not succeed here.

2. Particular Dissociative Agents

Although Dr. Levine’s composite opinion, that certain alleged victims were under the

influence of dissociative agents rather than alcohol is admissible under Daubert, his opinion that

GHB specifically was the likely culprit is not admissible. An expert opinion is not admissible if it

is wholly “speculative.” Campbell. v. Nat’l Railroad Passenger Corp., 311 F. Supp. 3d 281, 297

(D.D.C. 2018). In his expert report, Dr. Levine admitted that he could not “definitively conclude

which agent was used,” opining that GHB was “most likely” among several options. Expert Report

at 35-36. When Government counsel asked Dr. Levine whether “the amount of data that [he] w[as]

provided [was] sufficient for [him] as a doctor and medical toxicologist to feel comfortable

rendering an opinion,” he answered, “[c]ertainly on the general category of things, [but] maybe

not on the specific agent.” Trans. at 88:4-9. In other words, Dr. Levine “may not be comfortable”

opining that GHB was “most likely” the dissociative agent among several options. Uncomfortable

conjecture that a particular drug takes the plurality of a probability distribution is “guesswork,”

and guesswork is not the province of an expert witness. Although Dr. Levine may explain that

GHB is on kind of dissociative agent and indicate how GHB, as a dissociative agent, affects an

10 adult woman, the Court agrees with Defendant that Dr. Levine’s opinion that GHB was the “most

likely” of possible dissociative agents fails the Daubert standard. Accordingly, the Court excludes

that testimony from trial.

B. Lay/Expert Opinion

Lastly, Defendant insists, evidently in the alternative, that a lay jury requires no expert

assistance in determining whether an alleged victim was under the influence of a dissociative

agent. Binding appellate precedent holds otherwise. “A lay witness may not testify based on

scientific or other specialized knowledge[,]” including whether a person had a particular “medical

condition” and the nature of that medical condition. Lane v. District of Columbia, 887 F.3d 480,

485 (D.C. Cir. 2018). To hold otherwise would mean permitting every alleged victim who testifies

to state that they were, in fact, under the influence of a dissociative agent. As such, the Court

rejects this last challenge to Dr. Levine’s testimony.

IV. CONCLUSION AND ORDER

For the foregoing reasons, it is hereby

ORDERED, that Defendant’s [258] Motion to Exclude the Testimony of [Dr.] Michael

Levine is GRANTED IN PART AND DENIED IN PART. It is further

ORDERED, that Dr. Levine is deemed qualified as an expert in medical toxicology. Dr.

Levine may testify as to the following expert opinions: (1) the incapacitation of the alleged victims

listed in Dr. Levine’s expert report was consistent with intoxication from an incapacitating agent;

(2) urine drug testing is not an absolute indicator of whether a dissociative agent was previously

present in a patient’s system; and (3) AV-1’s urine sample was adulterated. Dr. Levine may not

//

11 testify as to his opinion that GHB was most likely the incapacitating agent used.

SO ORDERED.

Dated: October 5, 2023 /s/ COLLEEN KOLLAR-KOTELLY United States District Judge