United States v. David W. Webb ( 2011 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-10574 SEPTEMBER 12, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 3:08-cr-00136-LC-1
UNITED STATES OF AMERICA,
lllllllllllllllllllllPlaintiff-Appellee,
versus
DAVID W. WEBB,
llllllllllllllllllDefendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(September 12, 2011)
Before HULL, BLACK and STAPLETON,* Circuit Judges.
PER CURIAM:
*
Honorable Walter K. Stapleton, United States Court of Appeals for the Third Circuit,
sitting by designation.
Defendant-Appellant David W. Webb (“Webb”) was convicted of 130
counts arising, inter alia, from his wire fraud, health care fraud, and unlawful
dispensing of controlled substances. Webb also was convicted of three counts
charging that a patient’s death resulted from the use of controlled substances
dispensed by Webb or from his health care fraud violation. Webb is serving
concurrent life sentences on the three death-results convictions, and numerous
five, ten, and twenty-year concurrent sentences on his other 127 convictions.
Webb appeals his 130 convictions, arguing that: (1) the district court gave
erroneous instructions to the jury, (2) he received ineffective assistance of trial
counsel, and (3) the government’s evidence was insufficient to sustain his
convictions. After oral argument and careful review of the briefs and record, we
affirm.
I. INDICTMENT
On December 22, 2008, a grand jury issued a 131-count indictment1
charging Webb with: (1) conspiring (with his wife, Bonnie Faye Webb (“Faye”))
to defraud a health care benefit program and to commit wire fraud, in violation of
18 U.S.C. §§ 1343, 1347, 1349 (Count 1); (2) defrauding a health care benefit
program, in violation of 18 U.S.C. §§ 1347 and 2 (Counts 2-36); (3) unlawfully
1
Webb was acquitted on one count of the indictment.
2
dispensing and causing to be dispensed controlled substances, in violation of 21
U.S.C. §§ 841(a)(1) and 18 U.S.C. § 2 (Counts 39-106; 108-129); and (4)
possessing and using, without lawful authority, a Drug Enforcement
Administration (“DEA”) registration number of another in connection with the
distribution of controlled substances, in violation of 18 U.S.C. §§ 1028(a)(7) and 2
(Counts 130 and 131).
Count 37 charged Webb with health care fraud, and alleged that his fraud
resulted in death, in violation of 18 U.S.C. §§ 1347 and 2. Count 38 charged
Webb with conspiracy to unlawfully distribute numerous controlled substances,
including oxycodone2 and fentanyl,3 and with death resulting from the use of
oxycodone and fentanyl, all in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), 846.
Count 107 charged Webb with unlawfully dispensing the controlled substances
oxycodone and alprazolam,4 and with death resulting from the use of the
oxycodone, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), 841(b)(2), and 18
2
Oxycodone is a powerful pain-reliever derived from opiates like morphine. It comes in
immediate-release forms such as Percocet and continuous-release forms such as OxyContin. See
United States v. Merrill, 513 F.3d 1293, 1300 n.5 (11th Cir. 2008).
3
Fentanyl is the drug contained in Duragesic patches. Burnette v. Taylor, 533 F.3d 1325,
1330 n.3 (11th Cir. 2008). Fentanyl is a powerful synthetic opiate analgesic similar to, but more
potent than, morphine.
4
Alprazolam is a benzodiazepine that is often used to help reduce anxiety or help people
sleep, and is branded, among other things, as Xanax. See Merrill, 513 F.3d at 1300 n.4.
3
U.S.C. § 2.5 Because defendant Webb challenges the sufficiency of the evidence
at trial, we review the evidence in detail.
II. EVIDENCE AT TRIAL
A. Webb’s Prescribing Practices
Defendant Webb, a Florida-licensed physician, operated his medical
practice in Destin, Florida, under the name “Doctors on Call.”
Under Florida law, physicians are allowed to prescribe controlled
medications for pain, but must do so “for a sound medical purpose” and “within
the standard of care of a physician.” The Florida State Board of Medicine has
established seven standards that physicians who prescribe controlled substances
for the treatment of pain must follow, including these five: (1) conducting a
complete medical history and physical examination and documenting them in the
medical record; (2) establishing a written treatment plan with objectives to
determine whether the plan is working; (3) using written drug agreements for
patients deemed at high risk for drug abuse; (4) referral of the patient to expert
doctors “in order to achieve treatment objectives,” especially when the patient has
a history of substance abuse; and (5) keeping complete and accurate records. Fla.
Admin. Code r. 64B8-9.013(3). At trial, witnesses testified that Webb prescribed
5
The indictment did not state the names of the victims.
4
controlled substances for patients whom he saw for less than fifteen minutes, and
that those patients then would go straight to the pharmacy.
At trial, Dr. Theodore Parran (“Dr. Parran”) was the government’s expert
witness in drug and alcohol dependency. Dr. Parran reviewed 115 to 120 patient
files from Webb’s practice. Based on those files, Dr. Parran concluded that Webb
consistently violated the Florida Board of Medicine’s standards. According to Dr.
Parran, Webb: (1) gave inadequate initial evaluations, including failures to obtain
prior medical records and sub-standard physical exams; and (2) failed to refer
patients to specialists to help manage their pain. Webb also ignored signs of drug
dependency in his patients and continued to prescribe drugs even when patients
were “out of control with their self-taking of the medicine.”
Dr. Parran’s testimony, along with other testimony and documentary
evidence, indicated that Webb prescribed multiple controlled substances in high
doses, even where doing so made little medical sense. Dr. Parran testified that
when Webb’s patients had pain complaints, Dr. Parran could not recall any who
were not treated with controlled substances, a practice he described as “very
unusual.” The government’s evidence also indicated that even after Webb
discovered some of his patients were addicts, he continued to feed their addictions
by prescribing more controlled substances.
5
Dr. Parran also opined that Webb’s prescribing practices were “dangerous,”
“[a]bsolutely incredible,” and “clearly inconsistent with the usual course of
medical practice and for other than legitimate medical purposes.” Webb routinely
granted patients’ requests for early refills, even though such requests indicate that
patients are not taking drugs as prescribed. Tellingly in Dr. Parran’s view, Webb
did not question the reasons his patients gave for needing early refills, which
included: (1) a friend having stolen medication; (2) taking too much hydrocodone
for cold sores; and (3) having flushed medication down the toilet. While patients
sometimes legitimately need early refills, when this many patients ask for early
refills it is “a huge red flag.” Instead of granting those patients’ requests, the
better course is often to “ask them to get treatment.”
Additional testimony and evidence at trial suggested that Webb continued to
give his patients prescriptions for controlled substances even after Webb learned
those patients were obtaining narcotics from other sources or sharing their drugs.
For instance, Webb continued to prescribe multiple controlled substances to
patient Kevin Morris and Morris’s wife, even though Webb knew that Morris
shared medication with his wife. Webb also prescribed 74 Adderall pills rather
than the usual 60 to patient David Lee because Lee “has to pay back some people
who he borrowed medications from.” According to Dr. Parran, prescribing
6
narcotics under these types of circumstances “breaks basic rules of clinical
decision making” because “people getting potentially addicting drugs from
significant others, friends, family, acquaintances, and saying that they like them or
they feel like they’re the thing that works for them” is a major warning sign for
physicians in general.
Despite warnings from relatives and close friends to Webb and his staff
about various patients’ drug abuse, Webb continued to prescribe those patients
controlled substances. For instance, one patient’s father told Webb that the patient
had entered a drug rehabilitation facility, prompting Webb to note that the patient
“will never get another prescription from our practice.” Webb, however,
prescribed Adderall to that patient less than nine months later. Dr. Parran stated
that he could think of no good reason, aside from terminal illness, to give narcotics
to someone who had been detoxed and was in recovery from an opiate addiction.
One of Webb’s medical assistants also testified that when she expressed her
concerns to Webb, he dismissed her, saying “he did not put the pills in [his
patients’] mouth[s], he just wrote the scripts that they needed.”
Webb stood out to the pharmacists who filled his prescriptions because of
the “amount and the frequency” of the prescriptions. Unlike other doctors, Webb
kept his patients on pain medications for long periods, and also requested specific
7
brands of pain medicine because they worked better than generics. Dr. Parran
testified, however, that there is no medical reason to prescribe specific brands of
pain medicine rather than generics, and that his understanding is that patients seek
name-brand prescription medicines because those medicines have more street
value. Webb’s patients also brought in prescriptions for early refills more
frequently than other doctors’ patients. One pharmacist testified that some of
Webb’s patients were “drug seekers,” and that she had informed Webb that some
of Webb’s patients were also getting pain medications from other physicians.
Based on his review of various patients’ files, Dr. Parran concluded that
Webb’s prescription practices were “done in a way that was inconsistent with the
usual course of medical practice and [were] done for other than legitimate medical
purpose.” On cross-examination, Dr. Parran disagreed with Webb’s counsel’s
statement that “a caring doctor . . . would try to do anything they could to relieve
any type of pain that they believe their patient is suffering,” explaining that:
If in the process . . . of trying to relieve a patient’s pain and
suffering, a physician receives data, clinical information, calls from
pharmacists, calls from probation officers, information about overdoses,
information that patients are out of control with their medicine, running
out early, seeing multiple different doctors for the same substances,
using other illicit substances, so if in the process of trying to provide
care for a patient’s pain and suffering a physician receives data back
indicating that that patient is out of control with their use and that their
continued use threatens their health, their life, or their liberty, continuing
8
to prescribe to that patient in the face of that kind of adverse information
coming back to the doctor is inconsistent with the practice of medicine.
That constitutes knowingly doing harm to a patient in an ongoing way.
B. Webb Practices During License Suspension
The Florida State Board of Medicine suspended Webb’s medical license for
30 days, beginning April 23, 2005, as a penalty for Webb’s inappropriate
prescribing of weight-loss drugs and Viagra over the Internet. During this
suspension, Webb was not allowed to prescribe drugs or bill for office visits.
Webb arranged for another physician, Dr. Sally Ann Cooper (“Dr. Cooper”),
to cover his practice during three weeks of the suspension. The weekend before
the suspension started, however, Webb phoned in “lots and lots of prescriptions.”
After the suspension began, Webb continued to treat patients and write
prescriptions. When pharmacists refused to fill those prescriptions because
Webb’s license was suspended, he reissued the prescriptions using Dr. Cooper’s
DEA registration number. Some of the prescriptions were dated the week before
Dr. Cooper began to fill in at Webb’s practice. At one point, Webb’s wife Faye
called in some prescriptions. When the pharmacist told Faye that Webb could not
write prescriptions while he was suspended, Faye stated that Webb was not
writing prescriptions and that she was phoning them in. When the pharmacist still
refused to fill the prescription, Faye hung up. Shortly thereafter, Faye called the
9
pharmacy back and gave Dr. Cooper’s name and DEA registration number to
authorize a prescription for a controlled substance. Webb’s practice also called in
other prescriptions using Dr. Cooper’s DEA registration number.
Dr. Cooper testified that she had not authorized these prescriptions or the
use of her DEA registration number. Dr. Cooper learned that her number had been
used without her authorization when a patient came in for a routine visit and told
Dr. Cooper that her name was on the patient’s prescription bottles despite their
never having met. Further, the bottles “were dated before [Dr. Cooper] had started
working” at Webb’s medical practice. After doing some investigation on her own,
Dr. Cooper filed an official complaint with the Florida State Board of Medicine.
C. Fraudulent Claims to Health Care Benefit Programs
Evidence introduced at trial indicated that Webb submitted claims for office
visits and procedures during his 30-day suspension and caused pharmacies to
submit claims based on unauthorized prescriptions. In some cases, Dr. Cooper
saw a patient, but Webb submitted the claims under his own name. In another
case, Webb saw a patient on April 25 but backdated the claim to April 22.
Representatives from Blue Cross/Blue Shield of Florida, TRICARE (the
health benefit plan for armed services members), and companies that contracted
with Medicare and Medicaid testified that the insurers would not pay claims if
10
they knew that the services were provided (or the prescriptions were written) while
a physician’s license was suspended. Webb’s experts agreed that physicians
should not see patients, write prescriptions, or bill for office visits while
suspended from the practice of medicine.
The insurance company representatives similarly confirmed that their
companies would not pay for medication that was without legitimate medical
purpose. TRICARE’s representative stated that “the fact that the physician is
ordering a service or a prescription drug and that is causing a claim to be
submitted to the U.S. Government, that would be considered the same as saying
that these services are medically necessary to treat the patient.”
D. Death of Patient Victoria Ross
Before patient Victoria Ross first saw Webb, she ran her own business and
supported her family. Before she first encountered Webb professionally, Ross
took Lortab for her back pain, but neither the medicine nor the pain interfered with
her ability to function.
Ross’s sons testified at trial that they noticed changes in her appearance and
behavior after she became Webb’s patient and he prescribed her OxyContin. Ross
stopped caring as closely for her son, lost significant amounts of weight, and even
lost her business. These changes were evident not only to Ross’s family, but to
11
outsiders as well.
According to her husband, Ross eventually became addicted to the
oxycodone Webb prescribed and injected it intravenously. Ross routinely asked
for and received early prescription refills, despite Webb’s notations in Ross’s file
that he would refuse to issue early refills. Over the course of his treating Ross,
Webb became aware that Ross was seeing and getting drugs from other doctors,
but relied on her representations that she would see only Webb going forward.
Pharmacists also gave Webb indication that his prescription practices might
be contributing to Ross’s misuse of drugs. However, when one pharmacist refused
to fill a prescription because it was too early, Webb called another pharmacy to
have the prescription filled there. Webb also continued to call in prescriptions for
Ross after a pharmacy alerted him to the possibility that Ross may have altered a
prescription for OxyContin. Webb failed to contact a family doctor who a
pharmacy told him was also prescribing OxyContin and Lortab for Ross.
Although Webb knew that Ross had been hospitalized for endocarditis, a
heart valve infection that can indicate IV drug usage, he did not request medical
records from her hospitalizations. Those records would have revealed that the
cause of Ross’s endocarditis was in fact IV drug usage. However, when Ross got
out of the hospital and asked Webb to prescribe the same drugs she was on prior to
12
her hospitalizations, Webb wrote that he had “‘no problem with that’” because
Ross was a “responsible and compliant patient.”
After being absent from early 2004, Ross returned to Webb’s office in the
summer of 2004 complaining of increased lower back pain. Webb took no
additional history, but simply prescribed 28 tablets of OxyContin 40 mg, 28 tablets
of Percocet 10 mg, 30 tablets of Xanax 2 mg, the highest available strength, and
30 tablets of Soma. Although he was not referring specifically to Ross, the
government’s expert explained that it is dangerous to prescribe the same amount
of drugs to a patient following a gap between visits without documentation of
“someone else . . . prescribing in the intervening period and the patient still
[having] the same tolerance” because of the risk that “a patient has lost their
tolerance” for the medication, which could cause an accidental overdose.
Ross filled the August 15 prescriptions on August 15 and 16, 2004. Ross
collapsed on August 25, 2004, and died at the Fort Walton Beach Medical Center
on August 27. The medical examiner determined that the cause of death was
“acute oxycodone intoxication.” Despite the fact that Ross had an unhealthy heart,
the medical examiner determined that an accidental drug overdose was the more
likely cause of death because: (1) of Ross’s long history of drug abuse and (2)
Ross’s heart was restored to a normal rhythm after she collapsed, which is unusual
13
in cases of heart death. Dr. Parran stated that Webb’s prescription practices as to
Ross were “inconsistent with the usual course of medical practice and appear[] to
be for other than legitimate medical purpose and, to within a reasonable degree of
medical certainty, [were] direct contributor[s] to [Ross’s] death.”
E. Death of Patient Terri Morris
Webb first saw Trebble “Terri” Morris (“Terri”) in 2000. Webb had already
been treating her husband, Kevin Morris (“Kevin”), since August 1999. Kevin
abused the drugs Webb prescribed for him. One of Terri’s previous doctors
testified that he had dismissed her from his practice in the mid-1990s because he
was uncomfortable having her as a patient. The reasons for his discomfort
included Terri’s seeking drugs from emergency rooms, refusing drug rehabilitation
and other forms of help, and inappropriately using narcotics.
At her first office visit with Webb, Terri “reported no medical problems,
except for migraines and bipolar or manic depressive disorder . . . and she reported
to be on no medicines.” In addition to other medicines, Webb prescribed five
tablets of OxyContin 20 mg. Pharmacy expert Paul Doering testified that
“OxyContin is a terrible choice” for treating migraine headaches because
OxyContin’s controlled release does not do a good job combating the acute pain
caused by migraines. Dr. Parran opined that prescribing opiates to treat headaches
14
is discouraged because opiates may cause another headache.
Terri and Kevin both frequently requested early refills. On one occasion, to
justify his early refill, Kevin told Webb that Terri was stealing his medicines.
After the stealing incident, Webb advised Terri and Kevin not to use each other’s
medicines, but continued prescribing them narcotics without mentioning the issue
again. Both Morrises abused the Duragesic (fentanyl) patch that Webb prescribed
Kevin by poking holes in the patch and squeezing the substance into their mouths
to get high. Webb knew that Terri had hepatitis C, which most commonly results
from IV drug abuse, but did not ask Terri how she had contracted the disease.
Despite these signs of drug abuse, Webb continued to prescribe controlled
substances to Terri up until her death on September 9, 2003.
Terri and Kevin staggered their visits to Webb to ensure that they would
have a steady supply of narcotics. On September 5, 2003, Webb prescribed 30
alprazolam (Xanax), 75 Soma tablets, and 50 Darvocet tablets to Terri. On
September 9, Webb prescribed, inter alia, 15 Duragesic patches to Kevin. When
Kevin found Terri’s dead body, she had one of the Duragesic patches on her body,
and he found several more in the trash with pinpricks in them. Stephen Spinella, a
detective with the Fort Walton Beach Police Department, contacted Webb after
seeing Webb’s name on the pill bottles in Terri’s room. Webb told Detective
15
Spinella that he had no indication that Terri was sharing medications with her
husband, that he had no indication that she was suicidal, and that as far as Webb
knew, Terri took the medications as prescribed.
The toxicology report done after Terri’s death revealed significant levels of
fentanyl and alprazolam in her blood. The toxicologist testified that the level of
fentanyl in Terri’s blood indicated misuse of the Duragesic patch, was consistent
with ingesting or injecting the patch’s contents, and that putting such a high level
of fentanyl into the body “would be immediately fatal.” Terri’s blood contained
varying amounts of other drugs, and the cause of her death was “complications of
polypharmacy,” or “multiple drug intoxication.”
Based on his review of the two Morrises’ medical files, Dr. Parran opined
that Webb’s “prescribing appears to have been done inconsistent with the usual
course of medical practice and appears to have been for other than legitimate
medical purpose.” Importantly, “the prescribing played a contributory role in
[Terri Morris’s] death.” Dr. Parran further noted that Terri’s history and behavior
“require[d] intervention and - - and a changing of prescribing at that moment.”
However, Webb’s “prescribing was absolutely unchanged after the husband
reported [Terri’s stealing his medications], up until the time of [Terri’s] death.”
F. Death of Patient Gena Ortega
16
Webb’s patient Gena Ortega (“Ortega”) was a dental hygienist who had
successfully completed a drug rehabilitation program in 2001. According to
Ortega’s sister-in-law, after she got married Ortega was “a very professional
person, loved her job and neat in her appearance, . . . and . . . seemed to be just in
good general spirits.” After Ortega began seeing Webb, she became moody, had
little energy, and could not hold down a job. Ortega had burn marks on her legs
and on the furniture in her home from where she allowed the cigarettes she was
smoking to drop from her mouth and smolder.
Webb treated Ortega for back pain intermittently from July 2004 until her
death in April 2007. Ortega’s husband testified that he drove her to two of her
appointments with Webb, during which she was in Webb’s office for less than 15
minutes and went directly to the pharmacy afterwards.
In December 2004, Ortega told Webb that she had taken too many pills and
therefore had run out of her prescription ten days early, and Webb phoned in a
new prescription for her. On March 23, 2005, Webb noted that Ortega “‘requests
some medication to unwind at the end of the day,’” so Webb prescribed her what
Dr. Parran described as a “whopping” 1 mg dose of Klonopin. Dr. Parran opined
that “[u]nwind at the end of the day is not a diagnosis,” and is “certainly not a
legitimate medical purpose for a Schedule IV benzodiazepine to be prescribed.”
17
Ortega obtained an early refill from Webb in April 2005 and Webb sent her for a
pain consult in May 2005. After a five-month absence, Ortega came back to Webb
in October 2005, and Webb prescribed her Klonopin and Lortab at the same levels
as before.
According to pharmacy databases in the area where Webb practiced, Webb
continued to prescribe Lortab for Ortega on a monthly basis until April 19, 2007.
That same day, Webb also prescribed generic Soma and Endocet. Ortega died on
April 22, 2007. Among other things, Ortega’s toxicology report showed the
presence of hydrocodone and alprazolam, which resulted in “a synergistic effect.”
The medical examiner concluded that the cause of Ortega’s death was “toxic
effects of hydrocodone and other drugs,” which essentially caused her to
accidentally choke on her own vomit. Dr. Parran testified that Webb’s
“prescribing appeared to be inconsistent with the usual course of medical practice
and appeared to have been for other than legitimate medical purpose and was a
contributing factor to [Ortega’s] death.”
At the close of the government’s evidence, Webb made a motion for
acquittal, which the district court denied. Webb did not renew this motion at the
close of the evidence.
G. Webb’s Trial Evidence
18
Webb’s first trial witness was Dr. Richard L. Rauck (“Dr. Rauck”). Dr.
Rauck, an expert in anesthesiology and pain management, testified that Webb was
writing prescriptions appropriate for his patients’ conditions, and that his
prescribing practices were within the professional bounds of medical practice. Dr.
Rauck stated that in cases where he has testified for the Department of Justice that
other doctors conducted themselves outside the bounds of medical practice, it was
his experience that the accused doctors did not treat infections and other
conditions. In Dr. Rauck’s opinion, Webb’s prescribing patterns did not fit with
those of other doctors prosecuted for inappropriately prescribing controlled pain
medications.
Dr. Rauck further testified that opioids can appropriately be prescribed for
patients with drug abuse histories. Dr. Rauck testified that Webb did refer patients
to pain management clinics for treatment. In his review of Webb’s files, Dr.
Rauck did not see any intent on Webb’s part to get his patients addicted to
narcotics.
Dr. Rauck testified specifically on each of the three patients in whose deaths
Webb was implicated. He opined that Terri Morris had an extraordinary level of
fentanyl in her system when she died, and that such a high level could not have
come from a prescribed dose. He also noted that Webb did not prescribe fentanyl
19
for Terri, but only for her husband, and testified that it was not unusual for Webb
to have prescribed OxyContin to treat Morris’s headaches.
As to Gena Ortega, Dr. Rauck testified that she had been on “stable doses of
hydrocodone, so one would not have expected that to have caused her death.” He
stated that the levels of hydrocodone found in her blood at death should not have
been lethal. Dr. Rauck also found it compelling that Ortega had a sixty percent
lesion of one coronary artery and a forty percent lesion of another coronary artery,
which he posited was a possible reason for a cardiac event that could have caused
Ortega’s death.
Dr. Rauck also reviewed Victoria Ross’s file, which he said demonstrated
“narrowing in [the] coronary arteries” that could possibly have caused her death.
Dr. Rauck opined that Ross “clearly had sustained a miocardial [sic] infarction
rather acutely within days or hours before her ultimate death.” He also testified
that if Ross took her OxyContin as prescribed “it would be hard for [him] to
understand that that would be the cause of death.” Dr. Rauck disagreed with the
medical examiner that acute oxycodone intoxication was likely the cause of Ross’s
death, concluding that her heart condition was a more likely cause.
Webb testified in his own defense. He stated that he took patients other
doctors were unwilling to see, and that he is very frustrated by his arrest and trial.
20
He also never intended to defraud anyone.
Webb did not know that Victoria Ross was going to other doctors to get
medicine, and was not treating Ross for her heart problems. Webb prescribed
Ross OxyContin shortly before she died, but did not realize how desperate her
situation was. As to Ortega, she would not have died if she had taken the amount
of drugs Webb prescribed her. Webb never prescribed fentanyl to Terri Morris,
and when he found out that she and her husband were sharing drugs, he would
have had a “very significant conversation” with them (although he did not claim to
remember such a conversation specifically).
After the defense rested, the district court instructed the jury on all counts.
III. JURY INSTRUCTIONS
Section 841(b)(1)(C) provides for an enhanced penalty for unlawful
dispensing of a controlled substance if death “results from the use of such
substance.” 21 U.S.C. § 841(b)(1)(C). Section 1347(a) provides for an enhanced
penalty for health care fraud “if the violation results in death.” 18 U.S.C.
§ 1347(a).6
Webb requested a jury instruction on the three death-results Counts—37,
6
At the time of trial, § 1347 had the same language, but did not have subsections (a) and
(b). Later legislative changes made what was in § 1347 now § 1347(a) and added subsection (b).
21
38, and 107. Webb’s proposed jury instruction stated that the government must
prove that (1) his conduct “directly” and “in continuous sequence produced[,] or
contributed substantially to producing, the death,” and (2) that “but for” his
conduct, the death would not have occurred. His instruction stated:
In order to establish that a death “resulted” from the Defendant’s
conduct, the government must prove beyond a reasonable doubt that the
Defendant’s conduct directly and in natural and continuous sequence
produced or contributed substantially to producing the death, so that it
can be said that “but for” the Defendant’s conduct, the death would not
have occurred.
The district court did not give Webb’s proposed instruction but gave
different charges on the counts. We review the district court’s jury instructions
and Webb’s requested instruction in the context of each statute separately. The
principal issue concerns the wording of the jury instruction as to the statutory
terms “results from” contained in § 841(b)(1)(C) (Counts 38 and 107) and “results
in” contained in § 1347(a) (Count 37).
A. 21 U.S.C. § 841: Counts 38 and 107
As we noted earlier, Count 38 charged Webb with conspiracy to unlawfully
distribute numerous controlled substances, including oxycodone and fentanyl, and
with death (Terri Morris’s and Victoria Ross’s) resulting from the use of
oxycodone and fentanyl, all in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), and
22
846.7 Count 107 charged Webb with unlawfully dispensing the controlled
substances oxycodone and alprazolam, and with a death (Victoria Ross’s)
resulting from the use of the oxycodone, in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(C), (b)(2), and 2.
We start with the language of the applicable statute. Section 841(a) states
that: “it shall be unlawful for any person knowingly or intentionally . . . to . . .
dispense[] a controlled substance . . . .” 21 U.S.C. § 841(a). Section 841(b)
provides an enhanced penalty “if death . . . results from the use of such substance,”
as follows:
(b) Penalties
Except as otherwise provided . . . , any person who violates subsection
(a) of this section shall be sentenced as follows:
...
such person . . . if death or serious bodily injury results from the use of
such substance shall be sentenced to a term of imprisonment of not less
than twenty years or more than life . . . .
21 U.S.C. § 841(b)(1)(C) (emphasis added).
The dispute in this case centers on whether § 841(b)(1)(C)’s enhanced
penalty requires the jury to find (1) merely that the patient’s use of the controlled
substance (unlawfully prescribed by Webb) was the actual cause of death; or (2)
7
The indictment does not specify whose death resulted from the use of which drugs; it
does not even mention the names of the victims. Evidence adduced at trial indicates that Morris
died from the use of fentanyl and Ross died from the use of oxycodone.
23
that Webb’s conduct proximately caused the death or at least that the death was
reasonably foreseeable to Webb.
As to the § 841offenses (Counts 38 and 107), the district court instructed
there was no foreseeability or proximate cause requirement, and that instead the
government must prove that “but for” (had it not been for) the victim’s ingesting
of the drugs charged in the indictment, the victim would not have died. The
district court’s instruction stated:
Similarly, as it concerns Counts 38 and 107, the law provides that
whenever death or serious injury is a result of the victim’s use of a
controlled substance that has been distributed or dispensed by the
Defendant, a more serious offense is committed, regardless of whether
the defendant knew or should have known that death would result.
There is no requirement that the death resulting from the use of
the controlled substance dispensed was a reasonably foreseeable event,
or that the controlled substance was the proximate cause of the death.
This standard is satisfied upon a finding by you that, but for the victims
ingesting the controlled substances charged in the indictment, the
victims would not have died.
Therefore, you are to determine as follows:
...
Whether in Count 38 the death of Trebble Morris resulted from
the use of fentanyl and whether the death of Victoria Ross resulted from
the use of oxycodone that Defendant had caused to be dispensed,
between in or about December, 2002 and on or about September 13,
2007.
24
Whether in Count 107 the death of Victoria Ross resulted from
the use of oxycodone that the Defendant caused to be distributed or
dispensed, between on or about August 15, 2004 and on or about August
16, 2004.
On appeal, Webb contends that the district court (1) erred in refusing his
requested instruction and (2) should have instructed that, to find Webb responsible
for the deaths, it had to find “proof of actual cause and effect” between Webb’s
own conduct and his patients’ deaths.8 Webb submits that “[l]egal causation
(proximate cause and foreseeability) is a fundamental principle of jurisprudence
and it should have been part of the government’s burden of proof for all three
deaths—Congress has not stated otherwise.”
We disagree. Rather we join several of our sister circuits and hold that
§ 841(b)(1)(C)’s enhanced penalty requires only proof that the death resulted from
the victim’s use of a controlled substance dispensed by the defendant. See United
States v. De La Cruz, 514 F.3d 121 (1st Cir. 2008); United States v. Houston, 406
8
Webb challenges both the failure to give his instruction and the instruction the district
court gave instead. We review a district court’s rejection of a proposed jury instruction for abuse
of discretion. Merrill, 513 F.3d at 1305. “The district court has broad discretion in formulating
jury instructions as long as those instructions are a correct statement of the law.” Id. (quotation
marks omitted). We will reverse the district court’s refusal to incorporate a requested jury
instruction “only if the proffered instruction was substantially correct, the requested instruction
was not addressed in the charges actually given, and failure to give the instruction seriously
impaired the defendant’s ability to present an effective defense.” Id. (quotation marks omitted).
We review the legal correctness of the jury instruction actually given de novo. United
States v. Prather, 205 F.3d 1265, 1270 (11th Cir. 2000). Jury instructions are subject to harmless
error review. See Davis v. Kemp, 752 F.2d 1515, 1520-21 (11th Cir. 1985) (en banc).
25
F.3d 1121 (9th Cir. 2005); United States v. McIntosh, 236 F.3d 968 (8th Cir.
2001); United States v. Robinson, 167 F.3d 824 (3d Cir. 1999); United States v.
Patterson, 38 F.3d 139 (4th Cir. 1994). We discuss these decisions in depth, as
some focus on foreseeability and others on proximate cause.9
1. United States v. Patterson, 38 F.3d 139 (4th Cir. 1994)
In Patterson, the Fourth Circuit held that reasonable foreseeability is not an
element of the death “results from” sentence enhancement in § 841(b)(1)(C).
Patterson, 38 F.3d at 145. The two defendants in Patterson pled guilty to unlawful
distribution of controlled substances, but reserved the right to contest at
sentencing whether victim Carroll’s death resulted from their distribution of
controlled substances. Id. at 141.10 The sentencing court found that Carroll’s death
resulted from the drugs brought by defendant Patterson to the party. Id. at 141-42.
On appeal, the defendants argued that the district court erred in not
requiring the government to prove that Carroll’s death was a foreseeable result of
9
While Webb has not directed us to any definition of the two terms, foreseeability is
widely defined as an element of proximate cause. See Black’s Law Dictionary 721 (9th ed.
2009) (“Foreseeability, along with actual causation, is an element of proximate cause in tort
law.”).
10
Carroll attended a party at Defendant Laythe’s residence. Patterson, 38 F.3d at 142.
Defendant Patterson brought controlled substances to the party, “including Demerol, Mepergan,
morphine sulfate, and Valium, all in tablet or capsule form.” Id. Carroll later took some of the
pills Patterson gave to Laythe, and injected some heroin that Patterson melted down. Id.
Everyone involved went to sleep, and when Patterson and Laythe awoke, they found Carroll
dead. Id.
26
the defendants’ distribution of controlled substances before applying the enhanced
penalty in § 841(b)(1)(C). Id. at 142-43. The defendants argued that “(1) the
statute imposes a ‘reasonable foreseeability of death’ requirement, and (2) the
Government failed to provide sufficient evidence to prove that the death of Carroll
was, in fact, a reasonably foreseeable consequence of their actions.” Id. at 145.
Rejecting this claim, the Fourth Circuit concluded that “because we find that
§ 841(b)(1)(C) imposes no reasonable foreseeability requirement, we need not
address the question whether Carroll’s death was reasonably foreseeable” to the
defendants. Id. The Fourth Circuit explained that “the plain language of
§ 841(b)(1)(C) does not require, nor does it indicate, that prior to applying the
enhanced sentence, the district court must find that death resulting from the use of
a drug distributed by a defendant was a reasonably foreseeable event.” Id.
Instead, “[t]he statute puts drug dealers and users on clear notice that their
sentences will be enhanced if people die from using the drugs they distribute.” Id.
The Fourth Circuit concluded that: “Where serious bodily injury or death
results from the distribution of certain drugs, Congress has elected to enhance a
defendant’s sentence regardless of whether the defendant knew or should have
known that death would result.” Id. The Fourth Circuit refused to “second-guess
[Congress’s] unequivocal choice.” Id.
27
2. United States v. Robinson, 167 F.3d 824 (3d Cir. 1999)
The Third Circuit concluded that § 841(b)(1)(C) does not require proof that
a defendant’s actions are the proximate cause of a victim’s death. Robinson, 167
F.3d at 826. Defendant Robinson delivered heroin to Bungar, who delivered it to
Allison, who died of a heroin overdose. Id. at 826-27. The jury convicted
Robinson of conspiring to distribute heroin. The sentencing court “concluded that
Robinson distributed heroin that resulted in Allison’s . . . death,” and imposed the
mandatory minimum 20-year sentence in § 841(b)(1)(C). Id. at 827.
On appeal, defendant Robinson contended that § 841(b)(1)(C) “requires a
20-year mandatory minimum only if a court finds that the distribution of the
substance was in the common law sense the proximate cause of death or serious
bodily injury.” Id. at 826. In other words, “even though Robinson acknowledges
that a user of the heroin he supplied died from its use, he challenges the sentence
because the district court did not make a finding that his conduct was a proximate
cause of the user’s death.” Id.
Looking to Patterson for guidance, the Third Circuit stated “the [Fourth
Circuit] explained that the ‘statute puts drug dealers and users on clear notice that
their sentences will be enhanced if people die from using the drugs they
distribute.’” Id. at 830 (quoting Patterson, 38 F.3d at 145). After quoting the
28
Fourth Circuit’s explanation that “it would ‘not second-guess [Congress’s]
unequivocal choice,’” id. (quoting Patterson, 38 F.3d at 145), the Third Circuit
said that “[w]e will not either.” Id. Instead, “[w]here, as here, Congress’ language
is ‘plain and unambiguous,’ we simply apply the language of the statute as
written.” Id. at 830-31.
The Third Circuit added that “[i]n the circumstances, it would be sophistry
to say that Allison’s death did not result from the use of the heroin delivered
pursuant to the conspiracy.” Id. at 831. The Third Circuit emphasized that “we
are applying a statute dealing with a discrete problem, the distribution of
controlled substances, products which Congress recognized will in some cases
cause death or serious bodily injury.” Id. “Congress recognized that the risk is
inherent in the product and thus it provided that persons who distribute it do so at
their peril.” Id.
In sum, “[i]t is obvious Congress intended in such a case that the 20-year
mandatory minimum would apply if death or serious bodily injury resulted from
the use of the substance without regard for common law proximate cause
concepts.” Id. Although acknowledging that there might be some limiting
principles on application of the enhancement, the Third Circuit stated that “[i]f
section 841(b)(1)(C) is not to be applied as presently written, Congress and not
29
this court should narrow its application.” Id. at 832.
3. United States v. McIntosh, 236 F.3d 968 (8th Cir. 2001)
In McIntosh, the Eighth Circuit similarly concluded that the enhanced
penalty in § 841(b)(1)(A) did not have a foreseeability or a proximate cause
requirement.11 McIntosh, 236 F.3d at 972. Defendants McIntosh and McMillan
conspired to produce methamphetamine. Id. at 970. McIntosh shared his
methamphetamine with Jean Creswell, who lived with him, and with her niece
Amy Creswell. Id. Some of this methamphetamine eventually reached Jessica
Smith, Jean’s fourteen-year-old daughter, even though McIntosh had specifically
instructed his friends not to give Jessica methamphetamine. Id. Jessica died after
using the methamphetamine. Id.12
The district court determined that: “1) Jessica’s death resulted from the use
of methamphetamine; 2) the methamphetamine used by Jessica . . . came from
11
The relevant wording of § 841(b)(1)(A), which applies to different controlled
substances, is the same as the enhanced penalty in § 841(b)(1)(C):
(1)(A) In the case of a violation of subsection (a) . . .
...
such person shall be sentenced to a term of imprisonment which . . . if death or
serious bodily injury results from the use of such substance shall be not less than 20
years or more than life . . . .
21 U.S.C. § 841(b)(1)(A) (emphasis added).
12
McIntosh pled guilty to conspiracy to manufacture methamphetamine. McIntosh, 236
F.3d at 970. His plea agreement “left open for the district court’s determination at sentencing
whether McIntosh was subject to an enhanced sentence because of Jessica’s death.” Id. at 970-
71.
30
either Amy Cresswell, Jean Creswell, or McMillan;[] and 3) regardless of which of
the three supplied the methamphetamine, it ‘originally came’ from McIntosh.” Id.
at 971. The district court also found that the “government failed to prove that
McIntosh directly furnished Jessica with methamphetamine nor [sic] that he had
any knowledge she was being supplied with the drug by the others.” Id.
Despite the latter two findings, “the district court concluded McIntosh was
subject to the enhancement because he played a part in manufacturing the drug
[Jessica] did use,” and sentenced him to twenty years’ imprisonment. Id. On
appeal, McIntosh contended that § 841(b)(1)(A) permits a sentence enhancement
only if death “was a reasonably foreseeable result of, or was proximately caused
by, a defendant’s conduct,” and that he did not proximately cause Jessica’s death
and could not reasonably have foreseen it. Id.
The Eighth Circuit explained that “[t]he starting point for ascertaining the
intended meaning of any statute is the language of the statute itself.” Id. The
statute’s “language is unambiguous and . . . giving effect to its plain meaning
prohibits us from superimposing upon the statute a foreseeability or proximate
cause requirement.” Id. at 972. The Eighth Circuit “decline[d] to hinder
Congress’s will, apparent from the face of the statute, through a judicial
pronouncement that the statute requires more than it says.”
31
Id.
The Eighth Circuit agreed with the Third and Fourth Circuits’ conclusions
“that Congress intended § 841(b)(1)(A)’s enhancement to apply without regard to
the principles of proximate cause or the foreseeability of death or serious bodily
injury.” Id. at 972-73. The Eighth Circuit acknowledged that “[o]ur conclusion
that the statute imposes strict liability upon McIntosh for Jessica’s death vitiates
[McIntosh’s] argument” that the enhanced sentence only applies if the defendant
intends to cause death or knowingly risks death. Id. at 974.13
4. United States v. De La Cruz, 514 F.3d 121 (1st Cir. 2008)
In De La Cruz, the First Circuit also concluded that § 841(b)(1)(A)’s
enhanced penalty does not require the government to prove foreseeability. De La
Cruz, 514 F.3d at 138. A jury convicted defendant De La Cruz of conspiracy to
distribute heroin and possession with intent to distribute heroin, in violation of 21
U.S.C. §§ 841(a)(1), 846. Id. at 125. De La Cruz sold heroin to Tracy, who sold
13
Other circuits have also opined that § 841(b)(1)(C) (or provisions with similar language)
creates a strict liability regime. See United States v. Carbajal, 290 F.3d 277, 283 (5th Cir. 2002)
(interpreting sentencing guideline with similar “death . . . resulted from” language to
§ 841(b)(1)(C) and determining that it “is a strict liability provision that applies without regard
for common law principles of proximate cause or reasonable foreseeability”); United States v.
Rebmann, 226 F.3d 521, 522, 525 (6th Cir. 2000) (indicating in dicta that § 841(b)(1)(C) “[o]n
its face, . . . is, in effect, a strict liability statute with respect to the injury or death of another
arising out of the distribution of drugs”), overruled on other grounds by United States v.
Leachman, 309 F.3d 377, 385 n.9 (6th Cir. 2002).
32
some of that heroin to Flynn, who sold some to Wallace. Wallace later died in his
home of heroin use. Id. at 126. At trial, the district court instructed the jury that
it:
[M]ust find, beyond a reasonable doubt, that Wallace ingested
heroin, that this heroin was a “but for” cause of Wallace’s death,
and that this heroin was distributed as part of the conspiracy
charged in Count One and passed through Defendant’s hands as
part of the distribution charged in Count Two.
Id. at 137.
On appeal, De La Cruz argued that the jury should have been instructed
that, before finding him eligible for the enhanced penalty, it had to find that
Wallace’s death was foreseeable to him. Id. at 136. Rejecting De La Cruz’s
claim, the First Circuit noted that “[n]othing in the language of the statute suggests
that a death must be foreseeable before the enhanced penalty provision applies.”
Id. at 137. Instead, “[w]hat is required under the death-enhancing statute is that
the government prove cause-in-fact, that is, that the decedent’s death was caused
in fact by his or her use of drugs that were distributed either by the defendant
himself or by others in a conspiracy of which the defendant was a part.” Id. at
138. In De La Cruz’s case, “the district court properly instructed the jury about
the required proof of cause-in-fact, and-following the court’s instructions-the jury
specifically found that Wallace died as a result of ingesting heroin that was
33
distributed during the course of the charged offenses by Defendant [De La Cruz]
to Wallace through Tracy and Flynn.” Id.; see United States v. Hatfield, 591 F.3d
945, 947-48 (7th Cir. 2010) (discussing different types of causation and noting the
“parties agree that the statutory term ‘results from’ required the government to
prove that ingestion of the defendants’ drugs was a ‘but for’ cause of the deaths
and the bodily injury” and “[t]he death or injury need not have been
foreseeable”).14
5. United States v. Houston, 406 F.3d 1121 (9th Cir. 2005)
In Houston, the Ninth Circuit concluded that proximate cause is not a
required element of § 841(b)(1)(C)’s enhanced penalty. Houston, 406 F.3d at
1122-23. The jury convicted defendant Houston of distributing methadone to
Bradford, who died. Id. at 1121. The district court instructed the jury that “the
Government was required to prove beyond a reasonable doubt that ‘the
14
The error alleged in Hatfield was not that the district court charged the statutory
language that the government must prove the victim died “as a result of ingesting a controlled
substance . . . distributed by the defendants.” 591 F.3d at 947. The error was the added part of
the charge which stated the controlled substances had to have been “a factor that resulted in
death” and “although they need not be the primary cause of death . . . they must at least have
played a part in the death.” Id. (quotation marks omitted). The Seventh Circuit concluded that:
The defendants’ objection to the instruction was well taken. All that would
have been needed to satisfy it was to eliminate the addition to the statutory language,
which was a good deal clearer than the addition and probably clear enough.
Elaborating on a term often makes it less rather than more clear . . . .
Id. at 949.
34
defendant’s act was a proximate cause of . . . Bradford’s death.’” Id. at 1123.
The Ninth Circuit determined that “[t]o the extent that this instruction
suggested that Bradford’s death had to have been a foreseeable result of
[defendant] Houston’s act, the instruction required the Government to prove more
than the statute requires, and was therefore in error.” Id. (footnote omitted). The
Ninth Circuit reasoned that “[t]he addition of proximate cause as an element
necessary for invoking the twenty-year minimum sentence described in
§ 841(b)(1)(C) is inconsistent with the statutory language, our circuit’s related
precedent, and the conclusions of every other federal court of appeals to consider
the issue.” Id. The Ninth Circuit cited Patterson, McIntosh, and Robinson to
support its conclusion that neither foreseeability nor proximate cause is required to
support the enhanced penalty in § 841(b)(1)(C). See Houston, 406 F.3d at 1124.
The Ninth Circuit added that, (1) “[a]ll that is necessary under the statutory
language is that ‘death ... results’ from the offense described in § 841(a)(1),” and
(2) “[c]ause-in-fact is required by the ‘results’ language, but proximate cause, at
least insofar as it requires that the death have been foreseeable, is not a required
element.” Id. at 1125. The Ninth Circuit determined that the district court
erroneously instructed the jury that proximate cause was a required element of
§ 841(b)(1)(C), but found the error harmless and upheld defendant Houston’s
35
conviction and sentence. Id. at 1125-26.
With this background, we turn to the jury instructions at Webb’s trial.
6. Jury Instruction at Webb’s Trial
“The starting point for all statutory interpretation is the language of the
statute itself . . . .” Med. Transp. Mgmt. Corp. v. Comm’r, 506 F.3d 1364, 1367
(11th Cir. 2007) (quotation marks omitted); Harris v. Garner, 216 F.3d 970, 972
(11th Cir. 2000) (en banc) (“[C]ourts should always begin the process of
legislative interpretation . . . with the words of the statutory provision.”). “[O]ur
task is to determine whether the language at issue has a plain and unambiguous
meaning with regard to the dispute in the case. Our inquiry must cease if the
statutory language is unambiguous and the statutory scheme is coherent and
consistent.” Med. Transp. Mgmt. Corp., 506 F.3d at 1368 (quotation marks and
citation omitted).
Here, § 841(b)(1)(C) imposes an enhanced penalty whenever “death or
serious bodily injury results from the use of” the controlled substance. 21 U.S.C.
§ 841(b)(1)(C). We agree with our sister circuits that the plain and unambiguous
language of § 841(b)(1)(C) contains no foreseeability or proximate cause
requirement. De La Cruz, 514 F.3d at 138; Houston, 406 F.3d at 1122; McIntosh,
236 F.3d at 972; Robinson, 167 F.3d at 826; Patterson, 38 F.3d at 145. The
36
government is not required to prove a defendant’s conduct proximately caused the
victim’s death or that the death was reasonably foreseeable to the defendant.
Rather, under § 841(b)(1)(C), the government must prove only that the death
“results from” the victim’s use of a controlled substance charged in the indictment.
We apply the language of the statute as written. The statute requires a cause-in-fact
connection between the victim’s ingestion of the drugs and death. It does not
require that the defendant’s conduct proximately cause the death.
Accordingly, in Webb’s case, we find no error in the district court’s jury
instruction regarding § 841(b)(1)(C), nor any error in the district court’s refusal of
Webb’s requested instruction. The district court properly instructed that the
§ 841(b)(1)(C) standard was satisfied upon a finding that, but for the victims
ingesting the controlled substances charged in the indictment, the victims would
not have died. This “but for” charge told the jury it had to find “but for” (had it not
been for) the victim’s ingestion, no death would have occurred. The statutory term
“results from” is a cause-in-fact requirement that was met by the “but for” charge.
Thus, as to § 841(b)(1)(C), the district court’s jury instructions were correct, and
Webb’s requested instructions were not.
B. 18 U.S.C. § 1347: Count 37
Count 37 charged Webb with healthcare fraud and with a death (Gena
37
Ortega’s) resulting from that fraud, in violation of 18 U.S.C. §§ 1347 and 2. Webb
once again argues that foreseeability and proximate cause are required elements of
§ 1347(a)’s enhanced penalty. We turn to the language of the statute. Section
1347(a) provides for an enhanced penalty for health fraud “if the violation results
in death,” as follows:
(a) Whoever knowingly and willfully executes, or attempts to execute, a
scheme or artifice- -
(1) to defraud any health care benefit program; or
(2) to obtain, by means of false or fraudulent pretenses,
representations, or promises, any of the money or property owned
by, or under the custody or control of, any health care benefit
program,
in connection with the delivery of or payment for health care benefits,
items, or services, shall be . . . imprisoned not more than 10 years . . . .
[I]f the violation results in death, such person shall be . . . imprisoned for
any term of years or for life . . . .
18 U.S.C. § 1347(a) (emphasis added).
As to the § 1347(a) offense in Count 37, the district court instructed the jury
that a more serious offense is committed when death (1) is a result of the victim’s
use of a controlled substance and (2) is connected to the delivery of, or payment
for, healthcare services in furtherance of the defendant’s scheme to defraud, (3)
regardless of whether Webb knew or should have known that death would result.
The court’s instruction stated:
38
As it pertains to Count 37, the law provides that whenever death
or serious injury is a result of the victim’s use of a controlled substance
and is connected to the delivery of, or payment for, health care benefits,
items, or services in furtherance of the Defendant’s scheme to defraud,
a more serious offense is committed, regardless of whether the Defendant
knew or should have known that death would result.
...
Therefore, you are to determine as follows:
Whether in Count 37 the death of Gena Ortega resulted from the
use of controlled substances in connection with the health care
fraud violation charged in Count 37, on May 10, 2007.
Webb argues this instruction was erroneous.
Similar to § 841(b)(1)(C), Congress did not insert a foreseeability or
proximate cause requirement into § 1347(a)’s penalty enhancement. Examining the
statutory language, we see no principled way to distinguish between the “results in”
language in § 1347(a) and the “results from” language in § 841(b)(1)(C), which we
already have determined does not contain proof of foreseeability or proximate
cause as required elements of the enhanced penalty. Rather, the results language in
each statute requires nothing more than a causal connection factually.
The lack of foreseeability or proximate cause language in § 1347(a) is telling
because Congress has included such language in numerous other criminal statutes,
including statutes where the required connection is between the defendant’s offense
39
conduct and death or bodily injury. See 18 U.S.C. § 247(d)(2) (setting enhanced
punishment for damaging religious property or obstructing free exercise where
“bodily injury results to any person, including any public safety officer performing
duties as a direct or proximate result of conduct prohibited by this section, and the
violation is by means of fire or an explosive” (emphasis added)); id. § 247(d)(3)
(setting enhanced punishment “for damaging religious property or obstructing free
exercise where “bodily injury results to any person, including any public safety
officer performing duties as a direct or proximate result of conduct prohibited by
this section” (emphasis added)); id. § 844(d) (setting enhanced punishment for
importation, manufacture, or distribution of explosive materials, where “personal
injury results to any person, including any public safety officer performing duties
as a direct or proximate result of conduct prohibited by this subsection” (emphasis
added)); id. § 844(f)(2) (setting enhanced punishment for importation,
manufacture, or distribution of explosive materials “and as a result of such conduct,
directly or proximately causes personal injury or creates a substantial risk of injury
to any person” (emphasis added)); id. § 844(f)(3) (setting enhanced punishment for
importation, manufacture, or distribution of explosive materials “and as a result of
such conduct, directly or proximately causes the death of any person” (emphasis
added)); id. § 844(i) (setting enhanced punishment for damaging or destroying, by
40
means of fire or an explosive, any building, vehicle, or other real or personal
property “if personal injury results to any person, including any public safety
officer performing duties as a direct or proximate result of conduct prohibited by
this subsection” (emphasis added)); id. §§ 2248(b)(3)(F), 2259(b)(3)(F),
2264(b)(3)(F), 2327(b)(3) (mandating restitution for losses “suffered by the victim
as a proximate result of the offense” (emphasis added));15 id. § 3286(b) (permitting
charges on terrorism offenses at any time “if the commission of such offense
resulted in, or created a foreseeable risk of, death or serious bodily injury”
(emphasis added)); id. § 3663A(a)(2) (mandating restitution for persons
“proximately harmed as a result of the commission of an offense” (emphasis
added)); id. § 3771(e) (defining “crime victim” as, inter alia, “a person directly and
proximately harmed as a result of the commission of a Federal offense” (emphasis
added)); see also id. § 38(b)(2) (setting enhanced penalty for fraud related to
aircraft parts where “the part to which the offense is related is the proximate cause
of a malfunction or failure that results in serious bodily injury” (emphasis added));
id. § 38(b)(3) (setting enhanced penalty for fraud related to aircraft parts where “the
15
Cf. United States v. McDaniel, 631 F.3d 1204, 1208-09 (11th Cir. 2011) (construing 18
U.S.C. § 2259—and rejecting the government’s argument that proximate cause is not
required—“because it is contrary to the plain language of section 2259, which covers, inter alia,
‘losses suffered by the victim as a proximate result of the offense’” (quoting § 2259(b)(3)(F))).
41
part to which the offense is related is the proximate cause of a malfunction or
failure that results in the death of any person” (emphasis added)).
As the Fourth Circuit noted in Patterson, “Congress understands how to
place a reasonable foreseeability requirement into a sentencing enhancement
provision and has explicitly done so in the past.” Patterson, 38 F.3d at 145 n.7
(discussing 21 U.S.C. § 848(m)(4)). As this Court has emphasized, “[w]here
Congress knows how to say something but chooses not to, its silence is
controlling.” In re Griffith, 206 F.3d 1389, 1394 (11th Cir. 2000) (en banc)
(alteration in original and quotation marks omitted).
We recognize that the cause-in-fact connection in § 841(b)(1)(c) is between
the use of the controlled substance and the death, and in § 1347(a), between the
defendant’s conduct and the death. However, there still is no foreseeability or
proximate cause language in either statute. At bottom, § 1347(a) does not require
the exacting legal proximate cause as formulated by Webb in his proposed charge.
And there was no error in the district court’s charge that the enhancement may
apply “regardless of whether the Defendant knew or should have known that death
would result.”
We also recognize Webb relies on United States v. Martinez, 588 F.3d 301
(6th Cir. 2009), where the defendant Martinez was convicted of, inter alia, two
42
counts of health care fraud resulting in the death of two patients, in violation of 18
U.S.C. § 1347. 588 F.3d at 306.16 The district court instructed the jury that, to
convict Martinez of fraud resulting in death, it had to find that Martinez’s fraud
was the “proximate cause of the death of the two patients” before imposing the
enhanced penalty under § 1347. Id. at 318. Martinez argued “that the Government
failed to show that a rational jury could find that he caused their deaths.” Id. at
317. Thus, the Sixth Circuit examined “the standard of causation required to show
that such fraud ‘result[ed] in death’” to determine “whether there [was] sufficient
evidence to support [Defendant] Martinez’s conviction as to these two counts.” Id.
(first alteration in original).
The Sixth Circuit first noted that “[s]ection 1347 does not indicate the level
of causation required to support application of its enhanced penalties, but other
federal statutes elevate punishment when certain willful crimes ‘result in death.’”
Id. After reviewing several similar statutes and circuit-level decisions interpreting
them, the Sixth Circuit concluded “that proximate cause is the appropriate standard
to apply in determining whether a health care fraud violation ‘results in death.’” Id.
16
Martinez, an anesthesiologist, ran a pain-management clinic in Parma, Ohio. At trial,
the government’s theory was that Martinez “engaged in fraud and endangered his patients by
omitting physical examinations, ignoring ‘red flags’ of painkiller addiction, giving appreciably
more injections than were medically necessary or advisable, and providing at-risk patients with
treatments that would leave them dependent on him for pain-suppressant prescriptions.”
Martinez, 588 F.3d at 307.
43
at 318-19. The Sixth Circuit’s conclusion, however, was based on these three
factors: (1) the “fundamental principle of criminal law” that “a person is held
responsible for all consequences proximately caused by his criminal conduct”; (2)
“Congress was aware of principles of legal causation when it determined that a
health care fraud violation [that] results in death warrants an enhanced penalty”;
and (3) notably, “the parties [did] not challenge the district court’s determination
that proximate cause is the appropriate standard of causation.” Id. at 318
(alteration and quotation marks omitted). Upholding Martinez’s convictions and
the enhanced penalties, the Sixth Circuit found sufficient evidence demonstrated
that Martinez (1) committed health care fraud in hurriedly giving patients injections
and prescriptions and (2) that his actions proximately caused his two patients’
deaths. Id. at 322-323. Ultimately, Martinez is materially distinguishable because
the parties there did not “challenge the district court’s determination that proximate
cause is the appropriate standard of causation” and, as the evidence was sufficient
to support Martinez’s convictions even under the more stringent proximate cause
standard, the level of causation required by the statute was not dispositive in any
event. Id. at 318.17
17
In United States v. Rebmann, the Sixth Circuit stated in dicta that § 841’s death-
resulting sentence enhancement imposes strict liability. 226 F.3d 521, 525 (6th Cir. 2000) (“On
its face, [21 U.S.C. § 841(a)(1)] is, in effect, a strict liability statute with respect to the injury or
44
Finally, although it may have been more prudent to charge exactly defendant
Webb’s “violation results in death” language of the statute, the district court did in
fact charge that the death must be “connected to the delivery of, or payment for,
health care benefits, items, or services in furtherance of the Defendant’s scheme to
defraud.” (Emphasis added). Furthermore, there was overwhelming evidence (1)
that the type of heath care fraud here involved Webb’s prescribing controlled
substances for other than legitimate medical purposes, and having pharmacies
submit claims for reimbursement to health insurers on the basis of his
prescriptions; and (2) that Ortega’s death stemmed from taking those prescribed
drugs for which reimbursement was sought. Accordingly, given the overwhelming
evidence in this case, the particular type of health care fraud involved and its direct
connection with the charged death, we conclude any claimed error in the § 1347(a)
charge was harmless. In some cases the § 1347(a) health care fraudulent conduct
may be far too attenuated from the fact of the patient’s death to impose liability on
the defendant. See Houston, 406 F.3d at 1124 n.5. That is not the case here.
IV. INEFFECTIVE ASSISTANCE
A. Ineffective Assistance Principles
death of another arising out of the distribution of drugs.”), overruled on other grounds by United
States v. Leachman, 309 F.3d 377, 385 n.9 (6th Cir. 2002). Martinez does not mention Rebmann
or discuss the other circuits’ decisions dealing with the similar enhanced penalty under § 841.
45
Webb also claims that his trial counsel’s performance was deficient in that
trial counsel failed to make appropriate motions for acquittal at the close of
evidence. He argues that the evidence was insufficient to sustain his convictions,
and that the motions for acquittal would have been granted. We review Webb’s
insufficiency of the evidence claim but through the lens of his ineffective
assistance claim.18
In order to prevail on an ineffective assistance claim, a defendant must
demonstrate both that (1) “counsel’s performance was deficient,” and (2) “the
deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S.
668, 687, 104 S. Ct. 2052, 2064 (1984). We may consider the prongs of the
Strickland test in either order, and the defendant must show that both prongs are
satisfied in order to demonstrate a Sixth Amendment violation. See Holladay v.
Haley, 209 F.3d 1243, 1248 (11th Cir. 2000) (“[T]he court need not address the
performance prong if the defendant cannot meet the prejudice prong, or vice
versa.”(citation omitted)).
Given the overwhelming evidence outlined in detail above, we conclude that
the government presented sufficient evidence to sustain all of Webb’s convictions
18
Because the record is adequately developed by virtue of the trial transcript, we review
Webb’s ineffective assistance claim in this direct appeal. See United States v. Patterson, 595
F.3d 1324, 1328 (11th Cir. 2010).
46
and that motions for acquittal, even if made, would have failed.19 Accordingly, we
need not reach the performance prong, as, in any event, Webb suffered no prejudice
from his counsel’s performance in not making motions for acquittal at the close of
the evidence.
V. CONCLUSION
For all of these reasons, we affirm Webb’s convictions and sentences.
AFFIRMED.
19
“The evidence is sufficient to support a conviction if, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” United States v. Klopf, 423 F.3d 1228, 1236
(11th Cir. 2005) (quotation marks omitted). “In determining whether sufficient evidence
supports a defendant’s conviction, we view the evidence in the light most favorable to the
government and draw all reasonable inferences and credibility choices in favor of the jury’s
verdict.” United States v. Chirinos, 112 F.3d 1089, 1095 (11th Cir. 1997).
47
STAPLETON, Circuit Judge, concurring and dissenting:
With one exception, I concur in all of the conclusions reached by my
colleagues. In particular, I agree that the enhanced penalties provided by 21 U.S.C.
§ 841(b)(1)(C) are to be imposed whenever, following an unlawful distribution of a
controlled substance, the use of that substance becomes a but/for cause of a death
or serious injury without regard to whether the death or injury was reasonably
foreseeable to the defendant. As all of the courts of appeals which have considered
the issue have concluded, that is what the literal text of the statute indicates and
that literal reading is entirely consistent with the context in which the statute is
found. As my colleagues acknowledge,
[W]e are [here] applying a statute dealing with a discrete problem, the
distribution of controlled substances, products which Congress
recognized will in some cases cause death or serious bodily injury. In
short, Congress recognized that the risk is inherent in the product and
thus it provided that persons who distribute it do so at their peril. It is
obvious Congress intended in such a case that the 20-year mandatory
minimum would apply if death or serious bodily injury resulted from
the use of the substance without regard for common law proximate
cause concepts.
United States v. Robinson, 167 F.3d 824, 831 (3d Cir. 1999) (footnote omitted).
Section 1347 of Title 18 of the United States Code, however, does not deal
with a discrete problem arising from products involving an inherent risk of serious
48
injury or death.1 Rather, it provides an enhanced penalty for health care fraud if the
fraudulent scheme of the defendant resulted in death or serious bodily injury.
Section 1347 thus applies to a wide variety of economically motivated health care
activities and focuses on the relationship between the defendant’s conduct and the
consequences thereof. For this reason, I agree with the conclusion of the Sixth
Circuit Court of Appeals in United States v. Martinez, 588 F.3d 301, 318-19 (6th
Cir. 2009), “that proximate cause is the appropriate standard to apply in
determining whether a health care fraud violation ‘results in death.’”
The Martinez Court is the only court of appeals that has previously addressed
the causal connection required by § 1347. It correctly points out that this section is
not unlike a number of other statutes which impose enhanced punishment when the
conduct constituting the defendant’s violation “results” in death or serious bodily
injury, citing in particular the Civil Rights Act, 18 U.S.C. §§ 241, 242 and 245, and
1
Section 1347(a) provides:
Whoever knowingly and willfully executes, or attempts to execute, a scheme or artifice –
(1) to defraud any health care benefit program; or
(2) to obtain, by means of false or fraudulent pretenses, representations, or
promises, any of the money or property owned by, or under the custody or control
of, any health care benefit program,
in connection with the delivery of or payment for health care benefits, items, or services, shall be
fined under this title or imprisoned not more than 10 years, or both. If the violation results in
serious bodily injury (as defined in section 1365 of this title), such person shall be fined under
this title or imprisoned not more than 20 years, or both; and if the violation results in death, such
person shall be fined under this title, or imprisoned for any term of years or for life, or both.
49
the Fair Housing Act, 42 U.S.C. § 3631(a).2 Based on its review of the case law, the
Martinez Court found it to be a generally applicable “fundamental principle of
criminal law” that a “person is held responsible for all consequences proximately
caused by his conduct.” Id. at 315 (quoting United States v. Wiegand, No. 93-1735,
1994 U.S. App. LEXIS 37209, at *7 (6th Cir. 1994)). Moreover, the Court reasoned
that “when the Congress provided that [a violation] resulting in death may be
punished by life imprisonment, [a court] must consider it to have been fully
cognizant of the principles of legal causation.” Id. (quoting United States v. Marler,
756 F.2d 206, 216 (1st Cir. 1985)).
Nothing in the text or context of section 1347 or its legislative history
counsels against giving the concept of injury resulting from the statutory violation
its traditional scope, and I would do so.
Contrary to the Government’s suggestion, I am unable to conclude that the
2
The Martinez Court cited several cases from other circuits addressing analogous statutes.
See United States v. Marler, 756 F.2d 206, 215-16 (1st Cir. 1985) (holding that 18 U.S.C. §
242’s requirement for enhanced punishment is met when the defendant’s willful violation of the
civil rights statute is a “proximate cause” of the victim’s death, and that proximate cause can be
demonstrated where death was the “natural and foreseeable” result of the defendant’s conduct);
United States v. Woodlee, 136 F.3d 1399, 1405 (10th Cir. 1998) (holding that “the bodily injury
element of the felony crime is justified if injury was a foreseeable result of the” defendant’s
violation of 18 U.S.C. § 245(b)); United States v. Harris, 701 F.2d 1095, 1101 (4th Cir 1983)
(holding that the “if death results” language of 18 U.S.C. § 241 requires only that death is
foreseeable and naturally results from violating the statute”); United States v. Guillette, 547 F.2d
743, 749 (2d Cir. 1976) (holding that life imprisonment may be imposed if death results from
violations of 18 U.S.C. § 241 when the defendant’s violation of that statute is a proximate cause
of the victim’s death).
50
District Court’s erroneous charge was harmless beyond a reasonable doubt.
Accordingly, I would reverse Appellant’s conviction on Count 37 and affirm
on all other counts.
51