United States v. Chykeetra Maltbia, M.D. ( 2023 )

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-14446
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHYKEETRA MALTBIA, M.D.,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Alabama
D.C. Docket No. 1:19-cr-00209-JB-MU-1
____________________
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2 Opinion of the Court 21-14446
Before NEWSOM, BRANCH, and GRANT, Circuit Judges.
PER CURIAM:
Dr. Chykeetra Shinnyette Maltbia appeals her convictions
for possession with intent to distribute controlled substances. She
asserts that the district court erred for three reasons. First, she
argues that the district court’s exclusion of “good patient care”
evidence deprived her of the right to present a complete defense in
violation of the Fifth and Sixth Amendments. Second, she argues
that the district court erred by not giving the jury a “good faith”
instruction. Third, she contends for the first time on appeal that
the district court should have instructed the jury that the
government is required to prove that Maltbia issued prescriptions
without a legitimate medical purpose and was acting outside the
usual course of medical practice.
Because Maltbia is not entitled to relief on any of her claims,
we affirm her convictions. We address each enumeration of error
in turn.
I. Background
In February 2020, a grand jury indicted Maltbia with one
count of conspiracy to possess with intent to distribute controlled
substances in violation of 21 U.S.C. § 846 (Count One); sixteen
counts of possession with intent to distribute controlled substances
in violation of 21 U.S.C. § 841(a)(1) (Counts Two through
Seventeen); and eighteen counts of healthcare fraud in violation of
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21-14446 Opinion of the Court 3
18 U.S.C. § 1347 (Counts Eighteen through Thirty-Five). 1 Maltbia
pleaded not guilty on all counts, and the district court set the case
for trial. Before trial, the government moved to dismiss the
healthcare fraud claims, and the court granted the motion.
Maltbia is a physician who owned and operated a medical
clinic in Mobile, Alabama. At trial, a special agent with the United
States Drug Enforcement Administration (“DEA”) testified that he
became familiar with Maltbia’s clinic through an investigation into
several individuals for selling “oxycodone 30” prescription pills. 2
He discovered that the individuals selling oxycodone 30 were
Maltbia’s patients and observed them at Maltbia’s clinic. After
searching Maltbia’s clinic and the electronic data stored on her
computers pursuant to a search warrant, he learned that Maltbia
regularly prescribed controlled substances to her patients—
including oxycodone 30. Further investigation revealed that
Maltbia had already signed prescriptions for patients that she was
scheduled to see later in the day; that Maltbia charged her patients
$300 per visit; that Maltbia’s patients “mainly” paid in cash or by
credit card; and that Maltbia had issued prescriptions to patients
while she was out-of-state on multiple occasions. A DEA
1 In August 2019, a grand jury indicted Maltbia with five violations of 21 U.S.C.
§ 841(a)(1). Later that fall, Maltbia pleaded not guilty on all counts. A grand
jury then returned a superseding indictment in February 2020.
2 Testimony at trial explained that oxycodone 30 refers to the dosage of
oxycodone (30 milligrams) and that oxycodone 30 has the “highest street
value” for oxycodone.
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intelligence analyst testified that 58.7% of Maltbia’s patients
received at least one prescription of oxycodone 30. And the
government’s expert witness concluded that Maltbia prescribed
opioids without properly assessing patients and that she falsified
medical records.
The jury found Maltbia guilty on Count Two and Counts
Four through Seventeen. 3 After denying Maltbia’s motion for new
trial, the district court sentenced her to five years’ probation for
each count, with each probationary term to run concurrently, and
ordered Maltbia to pay a $50,000.00 fine.
Maltbia timely appealed.
II. Discussion
a. Whether the district court erred by excluding
“favorable patient testimony”
First, Maltbia argues that the district court denied her the
right to present a complete defense in violation of the Fifth and
Sixth Amendments to the Constitution by excluding “favorable
patient testimony.” We disagree.
Prior to trial, the government filed a motion in limine to
exclude testimony from Maltbia’s “good patient[s]” during opening
statements or “during trial without first making an argument
3 Maltbia moved for acquittal during trial and at the close of evidence, and the
district court granted her motions in part and dismissed Counts One and
Three.
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outside the jury’s presence.” The government explained that a
common “defense tactic in trials where the defendant is a medical
professional is for the defendant to attempt to call ‘good patient’
witnesses—i.e., patients who will testify that they received proper
medical care from the defendant.” The government argued that
“[w]hile such testimony might appear to be relevant at first blush,
‘good patient’ testimony is actually impermissible character
evidence.”
Maltbia opposed the motion, arguing that excluding
evidence of good patient care would deprive her of a fair trial and
her right to present a full defense under the Fifth and Sixth
Amendments.
After a hearing, the district court granted the government’s
motion and stated that “[a]ny request for the [c]ourt to revisit the
issue of admissibility at trial shall occur outside the presence of the
jury.”
“Whether the exclusion of evidence violated a constitutional
guarantee is a legal question reviewed de novo.” United States v.
Sarras, 575 F.3d 1191, 1209 n.24 (11th Cir. 2009). And “[i]n assessing
a defendant’s claims under the Fifth and Sixth Amendments to call
witnesses in her defense, . . . [w]e first examine whether [the] right
was actually violated, [and] then turn to whether [the] error was
harmless.” United States v. Hurn, 368 F.3d 1359, 1362–63 (11th Cir.
2004) (quotation omitted).
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“The Constitution guarantees criminal defendants a
meaningful opportunity to present a complete defense.” United
States v. Akwuba, 7 F.4th 1299, 1312 (11th Cir. 2021) (quotation
omitted). But the right to present a complete defense is not
absolute; rather, it is subject to reasonable restrictions. Id. “[S]tate
and federal rulemakers have broad latitude under the Constitution
to establish rules excluding evidence from criminal trials.” United
States v. Mitrovic, 890 F.3d 1217, 1221 (11th Cir. 2018) (quoting
United States v. Scheffer, 523 U.S. 303, 308 (1998)). “Such rules do
not abridge an accused’s right to present a defense so long as they
are not ‘arbitrary’ or ‘disproportionate to the purposes they are
designed to serve.’” Id. (quoting Scheffer, 523 U.S. at 308). A trial
judge’s role as gatekeeper is to “ensure that the factfinder bases its
decision only on relevant and reliable information.” Id. at 1222.
Thus, “while a criminal defendant must be given every meaningful
opportunity to present a complete defense,” “[s]he must [also]
comply with the procedural and evidentiary rules designed to
facilitate a search for the truth” in doing so. Id. (quotation
omitted). And, notably, the Supreme Court “has never held that a
federal rule of evidence violated a defendant’s right to present a
complete defense.” Id. (emphasis omitted).
On appeal, Maltbia contends that the district court’s
exclusion of testimony related to “good patient care” violated the
Fifth and Sixth Amendments by depriving her of the ability to
present a complete defense. She relies on United States v. Hurn,
368 F.3d 1359 (11th Cir. 2004), to support her argument that “good
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patient testimony” had “the potential to ‘place the story presented
by the [g]overnment in a significantly different light.’”
In Hurn, we explained that a district court’s exclusion of
evidence may violate the Constitution in four circumstances. 368
F.3d at 1363. As relevant here, we stated that “a defendant must
generally be permitted to introduce evidence that, while not
directly or indirectly relevant to any of the elements of the charged
events, nevertheless tends to place the story presented by the
prosecution in a significantly different light, such that a reasonable
jury might receive it differently.” 4 Id. Thus, Hurn recognizes that
defendants have a right to combat “the government’s selective
presentation of entirely truthful evidence” that can “cast a
defendant in an inaccurate, unfavorable light, or make entirely
legitimate, normal, or accepted acts appear unusual or suspicious.”
4 Although not relevant to this appeal, the other three circumstances include:
First, a defendant must generally be permitted to introduce
evidence directly pertaining to any of the actual elements of
the charged offense or an affirmative defense. Second, a
defendant must generally be permitted to introduce evidence
pertaining to collateral matters that, through a reasonable
chain of inferences, could make the existence of one or more
of the elements of the charged offense or an affirmative
defense more or less certain. Third, a defendant generally has
the right to introduce evidence that is not itself tied to any of
the elements of a crime or affirmative defense, but that could
have a substantial impact on the credibility of an important
government witness.
Hurn, 368 F.3d at 1363.
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Id. at 1366–67. “In these situations, the defendant has the right to
introduce additional evidence to dispel this unjustified taint, even
if that evidence does not directly or indirectly bear on a particular
element of an offense.” Id. at 1367.
For example, in United States v. Todd, 108 F.3d 1329, 1329
(11th Cir. 1997), the defendant was convicted of embezzling from
his company’s employee retirement fund. To prove “criminal
intent” and show that the defendant was “motivated by greed and
selfishness to fraudulently deprive the employees of the [p]lan’s
funds,” the government presented evidence that the defendant and
his family members who worked at the company received large
salaries. Id. at 1332–33. We reversed the defendant’s conviction,
concluding that the district court erred by prohibiting the
defendant from introducing evidence that all employees who
worked at the company, not just his family members, received
large salaries and benefits. Id. at 1333–34. We reasoned that such
evidence “could have put quite a different spin on the question of
Todd’s intent and actions” and that “[b]y disallowing the disputed
evidence, the district court deprived [the defendant] of a chance to
rebut the government’s intent argument.” Id.Here, Maltbia fails to establish that evidence of good patient
care constitutes the type of evidence contemplated by Hurn and
Todd—i.e., evidence that “complete[s] the picture” of the charged
crimes. Hurn, 368 F.3d at 1366–67. Maltbia argues that
“[t]estimony of good patient care whose quality of life has
improved after being treated by Maltbia was essential to refuting
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the [g]overnment’s claim that Maltbia was analogous to a street
drug dealer[,] that she was only seeming to make her practice
legitimate, and [that] she was not an honest and diligent doctor.”5
But even if evidence of good patient care might have added some
additional context, it would not have given the jury a reason in law
not to convict. See United States v. Funches, 135 F.3d 1405, 1408
(11th Cir. 1998) (affirming a conviction even though some
contextual evidence was excluded because “[h]ad the jury heard
[the excluded evidence], the jury nonetheless would have lacked a
reason in law not to convict”). Indeed, “evidence introduced to
‘complete’ a potentially misleading story offered by the
government is pertinent only when it might color a jury’s
assessment of the material facts of the case.” Hurn, 368 F.3d at
1367. Here, Maltbia does not explain how evidence of good care
for some patients would change or otherwise affect the material
facts that led to her convictions. Accordingly, because “good
patient” evidence was not necessary to correct inaccuracies created
by the government’s evidence or “complete the picture” of the
charged crimes, we conclude that the district court’s exclusion of
5 In its opening statement at trial, the government stated: (1) that “[t]he only
difference in Maltbia and a street level drug dealer is that she used her medical
license to do it” and (2) that “Maltbia and [her stepfather] worked together to
make it seem like a legitimate clinic. But you will be able to tell from the
undercover videos that it was anything but.” Then in its closing argument,
the government asserted that “[w]e would not be here today if Maltbia had
been a diligent and honest doctor.”
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“good patient” evidence did not violate Maltbia’s constitutional
right to present a complete defense.
b. Whether the district court erred by not giving the
jury a good faith instruction
Next, Maltbia argues that the district court erred by not
giving the jury a good faith defense charge. After reviewing for
plain error, we conclude that Maltbia fails to carry her burden.
When instructing the jury at the close of trial, the district
court explained that under 21 U.S.C. § 841(a)(1) of the Controlled
Substances Act (“CSA”), “[f]or a controlled substance to be lawfully
distributed or dispensed by prescription, the prescription must
have been issued by a practitioner both for a legitimate medical
purpose and within the usual course of professional practice.” The
district court explained that this determination was to be made
using an objective—not subjective—standard:
Whether a prescription was issued in the usual course
of professional practice must be evaluated based on
an objective standard. Thus, you must not focus on
the subjective intent of the prescriber. Rather, your
focus must be on whether the controlled substance
identified in each count was prescribed by [Maltbia]
in accordance with an objective standard of medical
practice generally recognized and accepted in the
United States.
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Maltbia never objected to the instruction. 6
Months later, Maltbia filed an untimely motion for new trial,
explaining that the Supreme Court had granted a petition for a writ
of certiorari in Ruan v. United States, -- U.S. --, 142 S. Ct. 457 (2021)(“Ruan II”), and a consolidated case and that the issues in those
cases were “directly applicable” to the legal issues of her case. She
contended that the petitions for certiorari addressed “the issue of
‘good faith’ as a defense to allegations of the nature contained in
the indictment against [Maltbia].” Maltbia urged the district court
to accept her out-of-time motion and to delay ruling on the motion
and conducting sentencing until the Supreme Court decided Ruan
II. The government opposed her motion, arguing that the motion
was untimely, that Maltbia was making these arguments for the
first time, and that “a delayed motion for a new trial should not be
a substitute for timely objections during trial.” The district court
denied Maltbia’s motion, and Maltbia appealed.
Because Maltbia did not timely file her motion for new trial,
we review the district court’s denial of the motion for plain error.
6 Although the parties and the district court discussed a good faith instruction
at the charge conference, the district court ultimately did not give a good faith
instruction to the jury—stating that it had “to follow the [then-binding]
Eleventh Circuit’s law on [the issue],” which required that the “usual course
of professional practice” prong be evaluated under an objective standard.
Maltbia never requested a good faith instruction at the charge conference and
never objected to the district court’s conclusion that it was not “an appropriate
defense to be instructed to the jury.”
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See United States v. Little, 864 F.3d 1283, 1289 (11th Cir. 2017).
Under plain error review, “[w]e may reverse an error that was plain
and that affects [a] defendant’s substantial rights, provided it also
seriously affects the fairness, integrity, or public reputation of
judicial proceedings.” United States v. Innocent, 977 F.3d 1077,
1081 (11th Cir. 2020). Importantly, “[t]he party challenging the
error bears the burden of proving that [she] had a ‘reasonable
probability of a different result’ absent the error.” Id. (quoting Dell
v. United States, 710 F.3d 1267, 1276 (11th Cir. 2013)).
After Maltbia appealed to us, the Supreme Court decided
Ruan II. A bit of background is helpful.
The statute under which Maltbia was convicted—21 U.S.C.
§ 841(a)—prohibits the “knowing[] or intentional[]” dispensing of
controlled substances “[e]xcept as authorized.” Certain controlled
substances are “authorized” to be dispensed by prescription if the
prescription is made for a “legitimate medical purpose by an
individual practitioner acting in the usual course of his professional
practice.” 21 C.F.R. § 1306.04(a). Prior to the Supreme Court’s
decision in Ruan II, we had repeatedly rejected defendants’
requests for a good faith jury instruction—specifically, an
instruction that a defendant’s good faith could be a defense to an
allegation that she acted outside the “usual course of professional
practice.” See United States v. Ruan, No. 17-12653, 2023 WL
106451, at *1 (11th Cir. Jan. 5, 2023) (“Ruan III”) (citing cases). In
those cases, we held that the “usual course of professional practice”
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prong must be evaluated using an objective standard, not a
subjective one. Id.The Supreme Court reversed. Ruan II, 142 S. Ct. at 2376.
Rejecting our objective standard, the Supreme Court held that
§ 841(a)’s “knowingly or intentionally” mens rea requirement
applies to both the dispensing element and to the “except as
authorized” clause. Id.; Ruan III, 2023 WL 106451, at *2. The
Supreme Court’s holding means that, to obtain a conviction under
§ 841(a), the “government must prove beyond a reasonable doubt
that a defendant (1) knowingly or intentionally dispensed a
controlled substance; and (2) knowingly or intentionally did so in
an unauthorized manner.” Ruan III, 2023 WL 106451, at *2; see
also Ruan II, 142 S. Ct. at 2376. The Supreme Court explained that
an objective standard inappropriately imported a civil negligence
standard into a criminal prosecution. Ruan III, 2023 WL 106451, at
*2. “Instead, what matters is the defendant’s subjective mens rea.”
Id.On remand, we held that the district court’s denial of the
defendants’ request for a good faith instruction, which reflected a
subjective intent, was error. Id. And because “the district court’s
instruction for the substantive drug charges inadequately conveyed
the required mens rea to authorize conviction under § 841(a),” we
vacated the defendants’ substantive drug convictions under
§ 841(a). Id. at *3.
Turning back to the case at hand, we conclude that Maltbia
cannot meet her burden to establish each element of plain error.
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Even if Maltbia could meet the first two prongs of the test, she
cannot satisfy the third prong. 7 Namely, she cannot satisfy her
burden to prove that there is a reasonable probability that she
would have obtained a different result but for the error. Innocent,
977 F.3d at 1082.
As the party challenging the alleged error, Maltbia bears the
burden of persuasion. See United States v. Monroe, 353 F.3d 1346,
1352 (11th Cir. 2003) (explaining that plain error review, unlike
harmless error review, puts “the burden of persuasion with respect
to prejudice or the effect on substantial rights” on the defendant,
not the government). And the “burden of showing prejudice to
meet the third-prong requirement is anything but easy.” United
States v. Rodriguez, 398 F.3d 1291, 1299 (11th Cir. 2005). She must
prove that she had a “reasonable probability of a different result”
absent the error. Innocent, 977 F.3d at 1082; United States v. Reed,
941 F.3d 1018, 1021 (11th Cir. 2019) (explaining that a defendant
7 Even though Maltbia fails on the third prong of the plain error test, we note
that she could have potentially succeeded on the first two. Although we do
not have any language for a good faith instruction to evaluate because none
was proposed in this case, we do know that the jury instruction given was
erroneous because it used an objective standard, rather than the subjective
standard that is now required. See Ruan II, 142 S. Ct. at 2376. And “[t]he error
was plain because it is evident at the time of appellate review.” Innocent, 977
F.3d at 1082; see Henderson v. United States, 568 U.S. 266, 279 (2013)
(explaining that “whether a legal question was settled or unsettled at the time
of trial,” the second prong of the plain error test is satisfied if an error is plain
“at the time of appellate consideration” (quotation omitted)).
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“must prove that an error occurred that was both plain and that
affected [her] substantial rights”).
In the face of this burden, Maltbia makes no argument and
presents no evidence that she was prejudiced by the error. 8 See
Monroe, 353 F.3d at 1352; see also United States v. Duncan, 400
F.3d 1297, 1304 (11th Cir. 2005) (concluding that the defendant
could not meet his burden of persuasion when he “[did] not point
to anything indicating a reasonable probability of a different result”
(quotation omitted)). And we decline to construct a prejudice
argument for Maltbia from a blank slate. Accordingly, we conclude
that Maltbia fails to meet her burden and cannot survive plain error
review when she provides no showing of prejudice and makes no
attempt to argue that a different result would have occurred absent
the error. See Duncan, 400 at 1304 (explaining that the defendant
bears the burden of “persuasion with respect to prejudice”).
c. Whether the district court erred by giving a
disjunctive jury instruction
At the close of trial, the district court instructed the jury that
the government must prove that “the defendant knowingly and
intentionally dispensed or distributed or caused to be dispensed or
distributed a controlled substance by prescription and [(1)] the
prescription was issued not for a legitimate medical purpose or [(2)]
8 Indeed, Maltbia’s brief does not reference “plain error,” “prejudice,” or
“substantial rights.” Instead, she largely summarizes the state of the law pre-
Ruan II and “urges [this] Court to be mindful of the Ruan ruling.”
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the prescription was issued outside the usual course of professional
practice.” For the first time on appeal, Maltbia argues that the
district court erred by not charging the “legitimate medical
purpose” and “usual course” “requirements in the conjunctive.”
After reviewing for plain error, we conclude that Maltbia fails to
carry her burden.
Because Maltbia raises this jury instruction issue for the first
time on appeal, we review her claim for plain error. United States
v. Guevara, 894 F.3d 1301, 1309 (11th Cir. 2018). Under plain error
review, we may exercise our discretion and correct an unpreserved
error where there is (1) an error; (2) the error is plain; (3) the error
affects substantial rights; and (4) the error seriously affects the
fairness or integrity of the judicial proceedings. Id. Maltbia’s
argument fails on all fronts.
As we explained above, under 21 U.S.C. § 841(a)(1) of the
CSA, it is unlawful for a person to knowingly or intentionally
distribute or dispense a controlled substance except as authorized.
One authorized exception permits licensed doctors to dispense
certain controlled substances with prescriptions. 21 U.S.C.
§ 829(a), (b). The regulations explain that for such a prescription to
be effective, it “must be issued for a legitimate medical purpose by
an individual practitioner acting in the usual course of his
professional practice.” 21 C.F.R. § 1306.04(a). And we have
interpreted this regulation to be disjunctive, meaning that a doctor
unlawfully distributes a controlled substance by prescription if (1)
“the prescription was not for a legitimate medical purpose” or (2)
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“the prescription was not made in the usual course of professional
practice.” United States v. Abovyan, 988 F.3d 1288, 1305 (11th Cir.
2021) (quotations omitted) (explaining that “[t]he rule is
disjunctive, and a doctor violates the law if he falls short of either
requirement”). Indeed, we have repeatedly affirmed jury
instructions that were given in this disjunctive format. See, e.g., id.
at 1305, 1308; United States v. Joseph, 709 F.3d 1082, 1094–96 (11th
Cir. 2013), abrogated on other grounds by Ruan III, 2023 WL
106451, at *1; United States v. Tobin, 676 F.3d 1264, 1282–83 (11th
Cir. 2012), abrogated on other grounds by Ruan III, 2023 WL
106451, at *1. Thus, considering that we have affirmed this jury
instruction in the past, and that the Supreme Court did not address
it in Ruan II, we conclude that no plain error exists. 9 See United
States v. Sanchez, 940 F.3d 526, 537 (11th Cir. 2019) (“An error
cannot be plain unless the issue has been specifically and directly
resolved by the explicit language of a statute or rule or on point
precedent from the Supreme Court or this Court.”).
9 We note that our conclusion is limited to the plain error review context. We
do not address what impact Ruan II may have on this issue, if any, if it is
preserved and raised on appeal in a future case.
Additionally, Maltbia argues, in a conclusory manner, that “[t]he
phrase ‘usual course of professional practice,’ when separated from ‘medical
purpose,’ is unconstitutionally vague.” Again, Maltbia did not raise this issue
below, so it is subject to plain error review. And where we have repeatedly
affirmed this disjunctive jury instruction, we cannot say that it was plain error
for the district court to give such an instruction. See United States v. Sanchez,
940 F.3d 526, 537 (11th Cir. 2019).
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Additionally, Maltbia cannot establish the third prong of the
plain error test because she fails to argue how she was prejudiced
and because she has not demonstrated that the outcome would
have been different if a conjunctive instruction, rather than a
disjunctive instruction, was given. The government urges us not
to “create a prejudice argument from whole cloth” when Maltbia
“does not . . . engage [the] heavy burden [of proving she received
an unfair trial] on appeal,” and we will not do so. Considering that
Maltbia bears the difficult burden of persuasion on this point, see
Rodriguez, 398 F.3d at 1299, we conclude that she cannot survive
plain error review when she makes no argument on this prong, see
Duncan, 400 F.3d at 1304.
III. Conclusion
Because Maltbia is not entitled to relief on any of her claims,
we affirm her convictions and the district court’s denial of her
motion for new trial.
AFFIRMED.