United States v. Jack Kelly Joseph ( 2013 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT US COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
No. 09-11984 FEBRUARY 21, 2013
________________________ JOHN LEY
CLERK
D. C. Docket No. 07-00002-CR-004-CAR-5
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JACK KELLY JOSEPH,
DOROTHY MACK,
SPURGEON GREEN, JR.,
Defendants-Appellants.
________________________
Appeals from the United States District Court
for the Middle District of Georgia
_________________________
(February 21, 2013)
Before MARCUS and PRYOR, Circuit Judges, and FRIEDMAN, ∗ District Judge.
PRYOR, Circuit Judge:
∗
Honorable Paul L. Friedman, United States District Judge for the District of Columbia, sitting
by designation.
The main issue presented in this appeal involves a jury instruction about
proving a violation of the Controlled Substances Act, 21 U.S.C. § 801 et seq., by
medical professionals. A physician, his assistant, and a pharmacist convicted of
violating the Act in connection with the operation of a “pill mill” argue that a jury
instruction at their trial ran afoul of the decision in Gonzales v. Oregon, 546 U.S.
243, 126 S. Ct. 904 (2006), by evaluating their conduct against a national standard
of professional practice. The indictment charged Spurgeon Green Jr., a physician,
and Dorothy Mack, a physician’s assistant at Green’s clinic, with dispensing or
distributing controlled substances to drug abusers and drug pushers without a
legitimate medical purpose and outside the usual course of professional conduct,
21 U.S.C. § 841(a). The indictment also charged Jack Kelly Joseph, a pharmacist,
with unlawfully filling many of the prescriptions for the drugs, id. And the
indictment charged Green, Mack, and Joseph with conspiring to violate the Act, id.§ 846. The defendants’ argument, raised for the first time on appeal, that the jury
instruction ran afoul of Gonzales fails because it is based on a misreading of that
instruction, which instead required the prosecution to prove that the defendants’
conduct failed to comply with any accepted standard of practice. The defendants’
remaining arguments about the jury instructions, the sufficiency of the evidence,
2
the admission of testimony by a police investigator, a search warrant of Green’s
home, and the reasonableness of Green’s sentence fail too. We affirm their
convictions and Green’s sentence.
I. BACKGROUND
From 1992 to 2003, Green operated a medical clinic in Perry, Georgia.
Houston County police became suspicious that Green’s medical clinic was not an
ordinary doctor’s office after they received complaints about long lines of people
waiting outside the clinic. Police conducted surveillance of the clinic and observed
that the parking lot outside the clinic was often full of patients waiting to see
Green. Green’s patients frequently arrived in groups of three or four people and in
cars with license plates that suggested they had traveled from other counties in
Georgia or from other states. Police also conducted sixty-four “trash pulls” from
the dumpster outside the clinic, and they conducted traffic stops of vehicles
departing the clinic to identify the occupants of those vehicles. Police learned that
many of Green’s patients had their prescriptions filled at a pharmacy that was
owned and operated by Joseph.
Police executed warrants to search Green’s medical clinic, his home, and a
storage unit that he maintained. The search warrants were supported by affidavits
that attested that Green had unlawfully dispensed or distributed controlled
3
substances and that evidence of Green’s crimes would be found at his home.
During the search, police retrieved, among other evidence, medical records from
Green’s clinic, about $800,000 from his home, and receipt books from his storage
unit. Green filed a motion to suppress the fruits of the search of his home on the
ground that the affidavit failed to provide probable cause that evidence of Green’s
crimes would be found there, but the district court denied the motion.
A federal grand jury returned an 89–count second superseding indictment
charging Green, Joseph, and Mack with violations of the Controlled Substances
Act. The indictment charged that Green, with the assistance of Mack, prescribed
controlled substances outside the usual course of professional practice to patients
who had no legitimate medical need for those substances, and that Joseph filled
those prescriptions even though he knew that Green and Mack issued the
prescriptions without any legitimate medical need and outside the usual course of
professional practice. The indictment charged that these actions violated section
841(a)(1) of the Act, which provides that “[e]xcept as authorized by this
subchapter, it shall be unlawful for any person knowingly or intelligently . . . to
manufacture, distribute, or dispense, or possess with intent to manufacture,
distribute, or dispense, a controlled substance.” Id. § 841(a)(1). Practitioners may
issue prescriptions for controlled substances so long as the prescriptions are issued
4
“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 the indictment
charged that all three defendants acted without a legitimate medical purpose and
outside the usual course of professional practice. Count 1 of the indictment
charged Green, Mack, and Joseph with conspiring to dispense and distribute
Schedule II, III, and IV controlled substances without a legitimate medical purpose
and outside the usual course of professional practice, id. § 846. Counts 2 through
86 charged some or all of the defendants with substantive violations of the Act, 21
U.S.C. § 841(a)(1). Counts 87 and 88 charged Green and Joseph respectively with
maintaining a place of business for the purpose of unlawfully distributing a
controlled substance, id. § 856(a)(1). And count 89 provided the defendants notice
of criminal forfeiture, id. § 853. All three defendants proceeded to a jury trial.
The prosecution presented evidence at trial that Green’s medical practice
and his clinic were unusual in many respects. Green saw as many as 100 patients
each day. He required that his patients pay in cash or by credit card before they
met with him, and he did not accept private insurance. Inside the clinic, patients
were sometimes rude and hysterical. Some patients could be heard retching in the
bathroom, while other patients offered the receptionists bribes to see the doctor as
5
soon as possible. Outside the clinic, patients sometimes camped overnight,
sleeping in cars and urinating in public.
Many of Green’s former patients were addicted to prescription drugs or sold
their prescription drugs to addicts. These patients went to Green’s clinic because
they knew he would give them the prescription drugs they wanted. One former
patient testified that it was “common knowledge . . . that you could go to [Green]
and basically write a grocery list [of] what you needed, and, you know, he would
fill it.” Another former patient addicted to prescription drugs testified that her
“honest opinion was it was a dope house,” and she testified that “people were
getting sick in the bathroom, you know. There was drug deals going on in the
parking lot.”
Green and Dorothy Mack, who worked as a physician’s assistant at Green’s
clinic from 2000 to 2003, knew that many of their patients were drug abusers.
Some patients had on their arms “track marks,” which evidence drug abuse and
make it difficult for nurses to find a vein to draw blood. Green and Mack often
assisted the nurses at the clinic to draw blood from patients with track marks.
Friends and family of Green’s patients sometimes called Green’s clinic to report
that Green’s patients were misusing their drugs and these complaints were
communicated to Green and sometimes to Mack.
6
Sergeant Manny Quinones, a police officer who investigated Green’s clinic,
testified that police determined, during the course of their investigation, that
Green’s patients included about 300 individuals who had violated drug laws in the
past. Quinones testified that officers identified these drug offenders based on
months of visual surveillance of the clinic, investigation of the license plate
numbers of Green’s patients, traffic stops of vehicles leaving the clinic, and sixty-
four trash pulls conducted at the clinic. Green objected to this testimony on the
grounds that it was unduly prejudicial and that the government did not lay an
adequate foundation for the testimony, but the district court overruled the objection
and admitted the testimony.
The prosecution also presented expert testimony that Green, Mack, and
Joseph dispensed or distributed the prescription drugs without a legitimate medical
purpose and outside the usual course of professional practice. Dr. Barry Straus, an
expert in pain management and the prescription of controlled substances who was
a practicing physician in Georgia, testified, based on his review of the medical
records maintained by Green and Mack, that their medical treatment was “below
minimum standards on recordkeeping, on treatment, on diagnosis.” Dr. Straus
testified that there was no legitimate medical reason to prescribe many of the
combinations of drugs that Green and Mack prescribed for their patients. Dr.
7
Straus also testified that, based on his review of the medical records, Green and
Mack did not conduct a thorough medical examination of their patients. Dr. Straus
testified that, if Green had conducted a thorough evaluation of each new patient, he
would not have been able to treat the large number of patients he treated each day.
Dr. Straus also testified that Green’s computer medical records suggested that
records detailing physical exams of patients were fabricated. Dr. Straus stated that,
after reviewing the medical records, one has to “really bend[] over backwards and
just mak[e] stuff up to justify [the medical practices of Green and Mack].”
The prosecution presented expert testimony that certain warning signs
should alert doctors and pharmacists that their patients may be abusing prescription
drugs, and the prosecution presented evidence that many of Green’s patients and
Joseph’s customers exhibited these warning signs. Dr. Straus testified about the
warning signs that should alert a physician that his patients are either abusing their
drugs or selling their drugs to drug abusers. Dr. Straus testified that among these
warning signs are patients who lose their medication or run out of their medication
early, patients who travel long distances to see a particular physician, and phone
calls from family and friends stating that a patient is abusing his or her prescription
drugs. Dr. John Holbrook, an expert in pharmacology and the prescription of
controlled substances, testified about the warning signs that should alert a
8
pharmacist that a patient is abusing or selling his drugs or that a patient’s
prescription was not written for a legitimate medical purpose. Dr. Holbrook
testified that among these red flags are patients who are unduly anxious to have
their prescriptions filled, have their prescriptions filled at pharmacies located far
from their homes, and wear long-sleeved clothing during warm weather seasons to
conceal “track marks” on their arms. Dr. Holbrook also testified that a pharmacist
has ethical, moral, and legal responsibilities to ensure that he does not fill for a
single patient several prescriptions that, if taken together, pose a danger to the
health of the patient.
Green and Mack also dispensed or distributed controlled substances during
the week of September 23, 2002, when Green was out of town and Mack saw 88 of
Green’s patients on his behalf. Before he left town, Green pre-signed dozens of
prescriptions for his patients, and he instructed Mack to deliver the prescriptions to
his patients if she thought it appropriate to do so. All of the 88 patients that Mack
examined during the week of September 23, 2002, were existing patients of Green,
and Mack did not examine any new patients that week. Mack delivered to 32 of
those 88 patients prescriptions for controlled substances that the Drug Enforcement
Agency classified as “Schedule II” controlled substances. Schedule II controlled
substances have “a high potential for abuse,” and “[a]buse of the drug or other
9
substances may lead to severe psychological or physical dependence.” Id.
§ 812(b)(2). Mack lacked authority under Georgia law to write prescriptions for
Schedule II drugs, but she had authority to write prescriptions for Schedule III,
Schedule IV, and Schedule V drugs, which have a lower potential for abuse than
Schedule II drugs.
Experts for both the prosecution and defense stated that doctors are not
permitted to pre-sign prescriptions. Dr. Straus testified that both state and federal
regulations prohibit doctors from signing prescriptions on a date other than the date
on which they deliver the prescriptions to patients. The relevant federal regulation
provides that “[a]ll prescriptions for controlled substances shall be dated as of, and
signed on, the day when issued.” 21 C.F.R. § 1306.05. Dr. Straus testified that
these regulations are designed to ensure that the doctor examines the patient before
delivering the prescription and to ensure that there is a legitimate medical reason
for delivering the prescription. Dr. Straus stated that every “legitimate doctor” and
“legitimate physician’s assistant” knows that he may not pre-sign prescriptions.
Dr. Straus did not review any of the patient charts of the 32 patients who received
pre-signed prescriptions during the week of September 23, 2002. Dr. Frank
Adams, an expert in pain management and internal medicine who testified on
behalf of the defendants, testified that there are “[n]o exceptions” to the rule that
10
doctors “cannot pre-sign Schedule II prescriptions.” But Dr. Adams testified that,
in some circumstances, it might be acceptable “from a clinical point of view” for a
physician’s assistant to give a patient a new prescription for a drug that a medical
doctor has already prescribed for that patient in the past.
Mack testified at trial and conceded that she had violated the regulation that
prohibits physicians from pre-signing prescriptions. Mack knew that she was not
allowed to write prescriptions for Schedule II controlled substances, but she
nonetheless gave some patients pre-signed prescriptions for Schedule II drugs
during the week of September 23, 2002. Mack testified that she did not know then
that prescriptions may not be pre-dated or pre-signed, although she conceded that
she should have known about that prohibition. Mack testified that she examined
all 88 of the patients she saw that week and that she tried to determine “in [her]
best judgment, whether or not [the patients] needed the medications that Dr. Green
had them on.” Mack testified that she did not become suspicious that any of those
88 patients were abusing or diverting their prescription medications until she heard
testimony to that effect at trial. Mack also testified that she often refused to fill
prescriptions for patients who showed signs of drug abuse and that, during the
week of September 23, 2002, she dismissed some patients from the clinic because
they showed signs of abusing prescription drugs.
11
The prosecution presented evidence contradicting Mack’s testimony that she
had scrupulously considered whether her patients had a legitimate medical need for
their prescriptions. Tonya Tyson, an investigator with the Drug Enforcement
Agency, testified that the medical records from the week of September 23, 2002,
suggested that Mack had performed either no physical exam or only a cursory
exam before she prescribed patients Schedule II drugs. And Dr. Straus testified
that, if Mack sometimes refused to treat patients who appeared to have abused their
drugs, Mack would have been even more culpable if she had prescribed controlled
substances for other patients who showed evidence of drug abuse.
Green testified at trial and admitted that he had pre-signed the 32
prescriptions. Green testified that he contacted the Drug Enforcement Agency by
telephone to inquire whether he could pre-sign prescriptions and that an Agency
official told him that he could pre-sign the prescriptions. Green could not recall
the name of the agent who approved the pre-signed prescriptions. Green stated
that pre-signing a prescription is akin to writing a prescription with a “Do Not Fill
Until” date, and Green testified that he directed Mack to deliver the prescriptions
to his patients only if she determined that there were no signs that the patients were
abusing the medication.
12
The prosecution produced testimony that contradicted Green’s statement that
a pre-signed prescription is akin to a “Do Not Fill Until” prescription. Dr. Straus
said that there is a significant difference between pre-signing prescriptions and
dispensing to a patient a “Do Not Fill Until” prescription. Dr. Straus testified that,
in 2002, it was uncertain whether it was legal for a physician to consult with a
patient and give them a “Do Not Fill Until” prescription for a Schedule II
substance, but that “no one ever thought pre-signing and pre-dating prescriptions
was legal.” Mark Caverly, the chief of the Office of Diversion Control in the Drug
Enforcement Agency, testified that pre-signed prescriptions and “Do Not Fill
Until” prescriptions are “completely separate issue[s],” and he testified that the
Agency has never permitted doctors to pre-sign and pre-date prescriptions.
Near the end of the trial, the district court instructed the jury that the
prosecution had to prove beyond a reasonable doubt that the practitioners delivered
the prescriptions without a legitimate medical purpose or outside the usual course
of professional practice. And the district court instructed the jury as follows about
a “good faith” defense under the Act:
[A] pharmacist who in good faith dispenses a controlled substance
pursuant to a proper prescription from a licensed physician for a
legitimate medical purpose in the usual course of his professional
practice does not violate the statute.
13
[…]
A controlled substance is prescribed by a physician in the usual course
of professional practice and, therefore, lawfully, if the substance is
prescribed by him in good faith as a part of his medical treatment for
the patient in accordance with a standard of medical practice generally
recognized and accepted in the United States.
The district court also instructed the jury that “[a] pharmacist who is registered
under the Controlled Substances Act is authorized to dispense or distribute
controlled substances pursuant to the legitimate prescription of a registered
physician.” Green objected that the district court should have adopted his
proposed instruction that, “[i]f a doctor dispenses drugs based on a good faith
belief he is medically treating a patient, then the doctor has dispensed the drug for
a legitimate medical purpose in the usual course of medical practice; that is, he has
dispensed the drug lawfully,” but the district court overruled this objection.
The Act provides for an enhanced prison sentence of 20 years of
imprisonment to life imprisonment if “death or serious bodily injury results from
the use of” an unlawfully dispensed or distributed Schedule II controlled
substance, 21 U.S.C. § 841(b)(1)(C), and the indictment charged some or all of the
defendants with 13 counts of causing death or serious bodily injury. The district
court instructed the jury that the delivery of the controlled substance must be a “but
for” cause of the victim’s death or serious bodily injury. The district court did not
14
instruct the jury that the Act requires that the prosecution prove that the delivery of
the controlled substance was also a proximate cause of the victim’s death or
serious bodily injury.
The jury found Green guilty as to the conspiracy count and 45 substantive
counts of violating section 841(a)(1). Among these substantive counts, the jury
convicted Green of count 12, which charged that Green unlawfully dispensed or
distributed a Schedule II controlled substance, causing death or serious bodily
injury to the patient, and of counts 52 through 83, which charged that Green
unlawfully dispensed or distributed Schedule II controlled substances, without a
legitimate medical purpose and outside the usual course of professional practice,
by pre-signing prescriptions that were delivered to patients during the week of
September 23, 2002. The jury convicted Mack of counts 52 through 83, which
charged that Mack unlawfully dispensed or distributed Schedule II controlled
substances, without a legitimate medical purpose and outside the usual course of
professional practice, by issuing pre-signed prescriptions to patients during the
week of September 23, 2002. The jury convicted Joseph only of the conspiracy
count.
The district court sentenced Green to 30 years in prison, Mack to 41 months
in prison, and Joseph to 84 months in prison. Green’s presentence investigation
15
report calculated his guideline range as 30 years of imprisonment to life
imprisonment, and at Green’s sentencing hearing, the district court adopted that
guideline range. Green requested a downward variance to the mandatory
minimum sentence of 20 years of imprisonment. The district court rejected
Green’s request and imposed a prison sentence of 30 years of imprisonment.
II. STANDARDS OF REVIEW
Several standards of review govern this appeal. We review de novo whether
the district court misstated the law in its jury instruction, United States v. Campa,
529 F.3d 980, 992 (11th Cir. 2008), and whether the evidence is sufficient to
support a conviction, United States v. Baker, 432 F.3d 1189, 1231 (11th Cir.
2005). When we review whether the evidence is sufficient to support a conviction,
we view the evidence in the light most favorable to the prosecution and draw all
reasonable inferences and credibility choices in favor of the jury verdict, United
States v. Tampas, 493 F.3d 1291, 1297–98 (11th Cir. 2007), and we must affirm a
conviction unless there is no reasonable construction of the evidence from which
the jury could have found the defendants guilty beyond a reasonable doubt, United
States v. Ignasiak, 667 F.3d 1217, 1227 (11th Cir. 2012). We review for an abuse
of discretion evidentiary rulings of the district court to which a timely objection is
made, United States v. Tinoco, 304 F.3d 1088, 1119 (11th Cir. 2002), a refusal of
16
the district court to give a requested jury instruction, United States v. Tokars, 95
F.3d 1520, 1531 (11th Cir. 1996), and the substantive reasonableness of a prison
sentence, United States v. Gonzalez, 550 F.3d 1319, 1323–24 (11th Cir. 2008).
We afford “great deference” to the determination of a magistrate judge that a
search warrant affidavit is supported by probable cause, and we uphold the
determination of the magistrate judge so long as he “had a substantial basis for
concluding that a search would uncover evidence of wrongdoing.” Illinois v.
Gates, 462 U.S. 213, 236, 103 S. Ct. 2317, 2331 (1983) (internal quotation marks
and alterations omitted). We review unpreserved objections for plain error,
including unpreserved objections to the jury instructions, Wilbur v. Corr. Servs.
Corp., 393 F.3d 1192, 1204 n.6 (11th Cir. 2004), and to the sufficiency of the
evidence, United States v. Dunlap, 279 F.3d 965, 966–67 (11th Cir. 2002).
III. DISCUSSION
We divide our discussion in five parts. First, we discuss why the
defendants’ five objections to the jury instructions all fail. Second, we discuss why
the district court did not abuse its discretion when it admitted the testimony of a
police investigator that Green’s patients included 300 known drug dealers. Third,
we discuss why the warrant to search Green’s home was supported by probable
cause. Fourth, we discuss why there was sufficient evidence to support the
17
convictions of Green and Mack. Fifth, we discuss why Green’s sentence is
reasonable.
A. The District Court Committed No Reversible Error in its Jury Instructions.
The defendants offer five arguments that the jury instructions were
erroneous, but their arguments fail. The defendants’ arguments, several of which
are raised for the first time on appeal, either misread the jury instruction,
misunderstand the requirements to sustain a conviction under the Act, or contradict
binding precedent of this Court.
The defendants’ challenges of the jury instructions all pertain to the
authority granted by the Act to medical practitioners to prescribe controlled
substances. “The overarching aim of the [Controlled Substances Act] is to combat
drug abuse and to control the legitimate and illegitimate traffic of controlled
substances.” United States v. Tobin, 676 F.3d 1264, 1275 (11th Cir. 2012). The
Act provides that “[e]xcept as authorized by [the Act], it shall be unlawful for any
person knowingly or intentionally . . . to . . . distribute[ ] or dispense . . . a
controlled substance.” 21 U.S.C. § 841(a)(1). But one important exception
permits registered “practitioner[s]” to dispense Schedule II, Schedule III, and
Schedule IV controlled substances with a “prescription.” Id. § 829.
18
Prescriptions are lawful if they are “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). “The responsibility for the proper prescribing
and dispensing of controlled substances is upon the prescribing practitioner, but a
corresponding responsibility rests with the pharmacist who fills the prescription.”
Id. If a prescription is issued without a legitimate medical purpose or outside the
usual course of professional practice, “the person knowingly filling such a
purported prescription, as well as the person issuing it,” is subject to the criminal
penalties of section 841. Id. To convict a licensed physician under section
841(a)(1), “it [is] incumbent upon the government to prove that he dispensed
controlled substances for other than legitimate medical purposes in the usual
course of professional practice, and that he did so knowingly and intentionally.”
Ignasiak, 667 F.3d at 1228 (quoting United States v. Guerrero, 650 F.2d 728, 730
(5th Cir. 1981)). And to convict a licensed pharmacist under section 841(a)(1), the
government must prove that the pharmacist filled a prescription knowing that a
physician issued the prescription without a legitimate medical purpose or outside
the usual course of professional practice. United States v. Hayes, 595 F.2d 258,
261 (5th Cir. 1979).
19
First, all three defendants argue, for the first time on appeal, that the district
court instructed the jury to evaluate their conduct against a national standard of
practice, which would run afoul of the decision of the Supreme Court in Gonzales,
546 U.S. 243, 126 S. Ct. 904. Because the defendants failed to raise this objection
before the district court, we review only for plain error. See Wilbur, 393 F.3d at1204 n.6. Gonzales concerned an interpretive rule of the Attorney General of the
United States that stated that physician-assisted suicide is not a “legitimate medical
purpose,” see 21 C.F.R. § 1306.04(a), and that a person violates the Act if he
prescribes, dispenses, or administers controlled substances to assist suicide.
Gonzales, 546 U.S. at 254, 126 S. Ct. at 913–14. That interpretive rule conflicted
with an Oregon law that permitted doctors to dispense or prescribe a lethal dose of
drugs upon the request of a terminally ill patient. Id. at 249, 126 S. Ct. at 911. The
Supreme Court explained that “there is no question that the Federal Government
can set uniform national standards” of medical practice, id. at 271, 126 S. Ct. at
923, but the Court concluded that the Act “manifests no intent to regulate the
practice of medicine generally,” id. at 270, 126 S. Ct. at 923. The Court stated
that, because “[t]he structure and operation of the [Act] presume and rely upon a
functioning medical profession regulated under the States’ police powers,” the Act
does not empower the Attorney General to declare that physician-assisted suicide
20
is not a legitimate medical purpose. Id. We have interpreted Gonzales to state
that, “[w]hen Congress enacted the [Act], it thus manifested its intent to leave it to
the states to define the applicable standards of professional practice.” Tobin, 676
F.3d at 1275.
The district court committed no error when it instructed the jury to consider
whether the defendants acted “in accordance with a standard of medical practice
generally recognized and accepted in the United States.” This instruction did not
suggest that the jury must evaluate the conduct of the defendants against a single
national standard of practice. The instruction instead required the prosecution to
prove that the actions of the defendants were inconsistent with any accepted
standard of professional practice.
Gonzales does not govern this appeal. The prosecution never sought to have
the district court impose a national standard of professional practice. In Gonzales,
the Supreme Court concluded that the Attorney General could not issue an
interpretive rule that defines the contours of legitimate medical practice in a
particular state. But here the question whether the defendants acted in accord with
an accepted standard of professional practice was always a question for the jury.
No regulation precluded the jury from finding that the defendants acted in the usual
course of professional practice, nor did a federal regulation conflict with a state
21
law. In fact, the defendants do not even argue that there is any difference between
the Georgia standard of practice and the supposed national standard that the jury
purportedly considered.
The defendants contend that our decision in Tobin supports their argument
about this jury instruction, but we disagree. In Tobin, we suggested, in a footnote,
as follows that this jury instruction might run afoul of Gonzales if it were to read
the Act to impose a national standard of professional practice:
To the extent that the instruction speaks to “standards of
[professional] practice generally recognized and accepted in the
United States,” and thus suggests that the [Act] imposes national
standards of professional practice, it is inconsistent with the Supreme
Court’s observation that unless Congress specifies otherwise, the
[Act] does not establish national standards. Gonzales, 546 U.S. at
269–72, 126 S. Ct. at 922–24. Again, none of the appellants have
argued that the District Court should have instructed the jury to assess
their behavior in light of the state standards that applied to them.
Tobin, 676 F.3d at 1281 n.8. But that dicta makes clear that none of the parties
argued that the jury instruction was inconsistent with Gonzales. Tobin instead
speculated sua sponte that the jury instruction would be inconsistent with Gonzales
only “[t]o the extent that the instruction . . . suggests that the [Act] imposes
national standards of professional practice.” As we have explained, this jury
instruction does not read the Act to impose a national standard of professional
practice.
22
Even if we were to conclude that the district court committed an error, that
error was not plain. An error is “plain” if it is “clear” or “obvious.” United States
v. King, 73 F.3d 1564, 1572 (11th Cir. 1996) (quoting United States v. Olano, 507
U.S. 725, 734, 113 S. Ct. 1770, 1777 (1993)). “It is the law of this circuit that, at
least where the explicit language of a statute or rule does not specifically resolve
an issue, there can be no plain error where there is no precedent from the Supreme
Court or this Court directly resolving it.” United States v. Lejarde-Rada, 319 F.3d
1288, 1291 (11th Cir. 2003). No Supreme Court or Eleventh Circuit precedent
disapproves jury instructions to evaluate the conduct of medical professionals
against “a standard of medical practice generally recognized and accepted in the
United States.” To the contrary, in United States v. Moore, 423 U.S. 122, 96 S. Ct.
335 (1975), the Supreme Court upheld the conviction of a physician who, the
record suggested, had “acted as a large scale ‘pusher’ – not as a physician,” id. at
143, 96 S. Ct. at 345, where the jury had been instructed to determine whether the
physician had acted “in the usual course of a professional practice and in
accordance with a standard of medical practice generally recognized and accepted
in the United States,” id. at 139, 96 S. Ct. at 343–44. And since the Supreme Court
decided Gonzales, our Circuit has rejected objections to a jury instruction that
measures the conduct of a physician against a standard of medical practice
23
“generally recognized and accepted in the United States.” See United States v.
Merrill, 513 F.3d 1293, 1306 (11th Cir. 2008); United States v. Williams, 445 F.3d
1302, 1309–10 (11th Cir. 2006), abrogated on other grounds by United States v.
Lewis, 492 F.3d 1219, 1220 (11th Cir. 2007) (en banc). In the light of these
precedents, the district court committed no plain error.
Nor did any alleged error affect the substantial rights of the defendants. This
deferential test of prejudice “almost always requires that the error must have
affected the outcome of the district court proceedings.” United States v. Pantle,
637 F.3d 1172, 1177 (11th Cir. 2011) (quoting United States v. Rodriguez, 398
F.3d 1291, 1299 (11th Cir. 2005)). Even if the district court should have instructed
the jury to evaluate the conduct of the defendants against only a Georgia standard
of medical practice, the defendants failed to offer any proof that the Georgia
standard differs at all from any national standard that the jury purportedly
considered.
The defendants argue that the alleged error in this instruction is
“jurisdictional” and somehow deprived the district court of the authority to hear
this matter, but we disagree. “A jurisdictional defect is one that strips the court of
its power to act and makes its judgment void.” McCoy v. United States, 266 F.3d
1245, 1249 (11th Cir. 2001) (alteration and internal quotation marks omitted). For
24
example, an indictment suffers from a jurisdictional defect when it charges no
crime at all. See United States v. Peter, 310 F.3d 709, 713 (11th Cir. 2002). The
district court had jurisdiction based on a valid indictment that charged that
defendants with violations of the Act. The defendants argue that the district court
charged the jury about an incorrect standard of practice, but this argument is not
about a jurisdictional error. Federal Rule of Criminal Procedure 30 provides that
the failure of a party to object to a jury instruction bars appellate review, except for
plain error, Fed. R. Crim. P. 30(d), and we have explained that when the Federal
Rules provide that a right may be waived, that right “simply does not fit the mold
of a jurisdictional defect,” McCoy, 266 F.3d at 1249.
Second, Green argues, again for the first time on appeal, that the jury
instruction about the good faith defense was misleading because the reference to “a
standard of medical practice generally recognized and accepted in the United
States” suggested that there was a single standard of professional practice against
which the jury had to evaluate his conduct, but we again disagree. Because Green
did not raise this objection before the district court, we again review only for plain
error. Experts for both the prosecution and the defense testified about the accepted
standard of medical practice, and it was for the jury to resolve the conflicting
testimony and determine whether Green had acted in accord with the accepted
25
standard of medical practice. See United States v. Lovern, 590 F.3d 1095, 1100
(10th Cir. 2009). We have twice held that a district court did not abuse its
discretion when it delivered a jury instruction nearly identical to this instruction.
See Merrill, 513 F.3d at 1306; Williams, 445 F.3d at 1309–10.
Green argues that the district court should have accepted Green’s proposed
jury instruction about the good faith defense, but we disagree. Green proposed that
the district court instruct the jury as follows that the defense of good faith turns
only on a subjective standard:
If a doctor dispenses drugs based upon a good faith belief that he is
medically treating a patient, then the doctor has dispensed the drug for
a legitimate medical purpose in the usual course of medical practice;
that is he has dispensed the drug lawfully. In other words, a doctor
should not be held criminally liable if the doctor acted in good faith
when treating his patients.
Good faith in this context means good intentions and the honest
exercise of his best professional judgment as to a patient’s needs. It
means that the doctor acted in accordance with what he reasonably
believed to be proper medical practice.
This proposed instruction provided an incorrect statement of the law. We have
held that whether a defendant acts in the usual course of his professional practice
must be evaluated based on an objective standard, not a subjective standard. See
Tobin, 676 F.3d at 1282–83; Merrill, 513 F.3d at 1306; Williams, 445 F.3d at
1309.
26
Third, Joseph argues, for the first time on appeal, that, although the district
court included a reference to the “good faith” defense in its charge about the
substantive counts, the district court failed to do so in its instruction about the
conspiracy counts, but this argument fails. Because Joseph did not raise this
objection before the district court, our review again is for plain error, and we
“determine[] whether the charges as a whole sufficiently instructed the jury.”
Tobin, 676 F.3d at 1283 n.11 (quoting United States v. Hooshmand, 931 F.2d 725,
731 (11th Cir. 1991)). The jury instruction about the conspiracy count explained
that the object of the conspiracy must be to distribute controlled substances “not
for a legitimate medical purpose and outside the usual course of professional
practice,” and the jury instruction about the substantive counts explained that
Joseph could not be found guilty if he acted “in good faith.” As we explained in
Tobin, the “jury could have easily referred back to the District Court’s instruction
on the [substantive] count[s] to refresh its understanding of the law that applies to
the [conspiracy] count.” Id. Joseph also cannot show that any error was “clear” or
“obvious.” King, 73 F.3d at 1572. The law of this Circuit is not even clear that
Joseph was entitled to a “good faith” jury instruction at all. Tobin, 676 F.3d at1283 n.11 (stating that a defendant “was not entitled to an instruction that even
referred to good faith”).
27
Fourth, Joseph argues that the jury instructions erroneously conflated the
legal distinction between “distributing” and “dispensing” controlled substances.
Section 841(a)(1) of the Act states that, “[e]xcept as authorized by [the Act], it
shall be unlawful for any person knowingly or intentionally . . . to . . . distribute[ ]
or dispense . . . a controlled substance.” 21 U.S.C. § 841(a)(1). The Act defines
“dispense” as “to deliver a controlled substance to an ultimate user or research
subject by, or pursuant to the lawful order of, a practitioner, including the
prescribing and administering of a controlled substance.” Id. § 802(10). The Act
defines “distribute” as “to deliver (other than by administering or dispensing) a
controlled substance or a listed chemical.” Id. § 802(11). Joseph argues that a
“distribution” is “by definition not lawful conduct because it is statutorily defined
to comprise all transactions other than lawful ‘dispensing.’” Joseph contends that,
under the Act, “a transaction may be either unlawful distributing or lawful
dispensing, but not both.” Joseph argues that the district court elided this
distinction between the lawful act of dispensing prescriptions and the unlawful act
of distributing prescriptions when the district court instructed the jury that “[a]
pharmacist who is registered under the Controlled Substances Act is authorized to
dispense or distribute controlled substances pursuant to the legitimate prescription
of a registered physician.” Joseph argues that, because of this error, “[t]here was
28
simply no legal, articulated basis left upon which to distinguish between lawful and
unlawful transactions.” Because Joseph did not raise this objection before the
district court, we review only for plain error.
We reject the argument that, under the Act, all acts to dispense prescriptions
are lawful and all acts to distribute prescriptions are unlawful. The Supreme Court,
in Moore, 423 U.S. at 124, 96 S. Ct. at 337, explained that persons registered under
the Act may be prosecuted for either dispensing or distributing controlled
substances. We have rejected the argument that licensed individuals cannot
unlawfully “dispense” prescriptions, and we have explained that licensed
practitioners may be indicted for either unlawful distribution or unlawful
dispensation. United States v. Harrison, 651 F.2d 353, 354 & n.1 (5th Cir. 1981).
No error, plain or otherwise, occurred.
Fifth, Green argues that the district court erred when it instructed the jury
about the trigger for an elevated prison sentence, 21 U.S.C. § 841(b)(1)(C), but we
disagree. Section 841 makes it a crime for a person to unlawfully dispense or
distribute a Schedule II controlled substance and provides for a maximum sentence
of twenty years of imprisonment, but it also provides a minimum prison sentence
of 20 years and a maximum prison sentence of life if “death or serious bodily
injury results from the use of such substance.” Id. The indictment charged Green
29
with 13 counts of unlawfully dispensing or distributing a Schedule II controlled
substance to a patient who suffered death or serious bodily injury as a result, and
the jury found Green guilty of one of those 13 counts. Green argues that the
district court erred when it instructed the jury that the controlled substance must be
an “actual” or “but for” cause of the victim’s death or serious bodily injury. But
this argument is foreclosed by United States v. Webb, 655 F.3d 1238 (11th Cir.
2011), where we held that section 841(b)(1)(C) “requires only proof that the death
resulted from the victim’s use of a controlled substance dispensed by the
defendant.” Id. at 1250. Green argues that we should reconsider Webb, but “it is
the firmly established rule of this Circuit that each succeeding panel is bound by
the holding of the first panel to address an issue of law, unless and until that
holding is overruled en banc, or by the Supreme Court.” United States v. Hogan,
986 F.2d 1364, 1369 (11th Cir. 1993).
B. Probable Cause Supported the Warrant to Search Green’s Home.
Green argues that the warrant to search his home was not supported by
probable cause. The Fourth Amendment protects “[t]he right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable searches
and seizures,” and it provides that “no Warrants shall issue, but upon probable
cause.” U.S. Const. amend. IV. A search warrant is supported by probable cause if
30
the supporting affidavit establishes “a connection between the defendant and the
location to be searched; . . . a link between the location and criminal activity; and
. . . the informant’s veracity and basis of knowledge.” United States v. Davis, 313
F.3d 1300, 1303 (11th Cir. 2002). The magistrate judge who reviews the
application for a warrant must consider the “totality-of-the-circumstances” and
“make a practical, common-sense decision whether, given all the circumstances set
forth in the affidavit before him, . . . there is a fair probability that contraband or
evidence of a crime will be found in a particular place.” Gates, 462 U.S. at 238,
103 S. Ct. at 2332. “This circuit has stated that probable cause exists ‘if facts
within the magistrate’s knowledge and of which he had reasonably trustworthy
information would warrant a man of reasonable caution in the belief that a crime
was committed and that evidence is at the place to be searched.’” United States v.
Betancourt, 734 F.2d 750, 754 (11th Cir. 1984) (quoting United States v. Strauss,
678 F.2d 886, 892 (11th Cir. 1982)).
The record supports the finding of probable cause to search Green’s home.
The warrant to search Green’s home was supported by the 39-page affidavit of
Sergeant Wayne Franklin, which provided substantial evidence that Green violated
the Act and that evidence of Green’s crimes would be found at his home. The
affidavit stated that, during the course of the investigation of Green’s medical
31
clinic, police obtained evidence that Green “issued [to his patients] prescriptions
for highly addictive drugs with minimal or no tests to determine the proper medical
need for the drugs.” The affidavit stated that this information was verified by
undercover agents who received prescriptions for addictive substances after Green
conducted only cursory medical examinations of them. The affidavit stated that
Green issued prescriptions to some patients even after he received complaints that
they were addicted to their prescription drugs. The affidavit also provided
evidence that some of Green’s patients died from drugs he prescribed for them, and
the affidavit recounted police interviews of some of Green’s patients who stated
that Green gave them prescriptions for addictive drugs after performing only a
cursory medical examination.
Green acknowledges that the lengthy affidavit sets forth a “litany of facts”
that suggest he violated the Act, but he argues that the affidavit was deficient
because it was not supported by expert medical testimony that his practices were
outside the usual course of professional practice or not for a legitimate medical
purpose. He argues that, without expert testimony, the judge who approved the
search warrant could not have had probable cause to suspect that Green’s medical
practices were unlawful. We disagree. Because Green did not raise this specific
32
objection to the search warrant before the district court, we review only for plain
error.
Expert medical testimony is not required to establish probable cause that a
defendant violated the Act. Expert medical testimony is not even necessary to
sustain a conviction under the Act because a jury may find that a doctor violated
the Act “from evidence received from lay witnesses surrounding the facts and
circumstances of the prescriptions.” United States v. Rogers, 609 F.2d 834, 839
(5th Cir. 1980). The “probable cause” standard requires the government to
produce much less evidence than it must present to sustain its burden of proof at
trial. United States v. Middleton, 599 F.2d 1349, 1356 (5th Cir. 1979). If expert
medical testimony is not required to prove beyond a reasonable doubt that Green
violated the Act, expert testimony is not required to establish probable cause that
he violated the Act. And we have held that a warrant affidavit establishes probable
cause that the defendant violated the Act when the affidavit was not supported by
expert testimony that the physician violated accepted medical standards. See
Betancourt, 734 F.2d at 754.
Green also argues that the affidavit failed to establish probable cause that
evidence of criminal conduct would be found at Green’s home, but we disagree.
Green raised this objection to the search warrant before the district court.
33
“Probable cause to search a residence requires some nexus between the premises
and the alleged crime.” United States v. Bradley, 644 F.3d 1213, 1263 (11th Cir.
2011). “Evidence that a defendant has stolen material which one normally would
expect him to hide at his residence will support a search of his residence.” United
States v. Jenkins, 901 F.2d 1075, 1080–81 (11th Cir. 1990) (quoting United States
v. Maestas, 546 F.2d 1177, 1180 (5th Cir.1977)). “[A] police officer’s expectation,
based on prior experience and the specific circumstances of the alleged crime, that
evidence is likely to be found in a suspect’s residence satisfies probable cause.”
Bradley, 644 F.3d at 1263–64. Sergeant Franklin stated in his affidavit that, during
his career, he had conducted or assisted in over 1,000 investigations for violations
of the Georgia Controlled Substances Act, and that he had investigated the
unlawful distribution of both prescription drugs and “street drugs” like cocaine and
ecstasy. Franklin also stated that, based on his knowledge, training, and
experience, dealers often store at their home illicit cash proceeds, receipts, and
other evidence of their crimes. This experience, along with the evidence that
Green violated the Act, provided probable cause to search Green’s home. Green
argues that Franklin’s affidavit was based only on Franklin’s experience with
sellers of street drugs, but Franklin’s affidavit stated that his experience involved
34
investigating a range of drug crimes, including the unlawful sale of prescription
drugs. Franklin’s affidavit established probable cause to search Green’s home.
C. The District Court Did Not Abuse Its Discretion When It Admitted Testimony
That Green’s Patients Included About 300 “Known Drug Offenders.”
Green argues that the district court abused its discretion when it admitted the
testimony of an investigator who testified that police learned, during the course of
their investigation, that Green’s patients included about 300 “known drug
offenders,” but we disagree. Green argues that the government did not clearly
explain the meaning of the term “drug offenders,” and that the government did not
adequately explain how investigators identified the 300 drug offenders. Sergeant
Manny Quinones, a Houston County police officer who participated in the
investigation of Green’s clinic, testified that police learned that Green’s patients
included about 300 “known drug offenders.” Quinones adequately explained that
the 300 individuals had all violated a drug law in the past. The government also
laid an adequate foundation for how it identified these 300 drug offenders.
Quinones testified that the government identified these individuals based on
months of visual surveillance of the clinic, investigation of the license plate
numbers of Green’s patients, traffic stops of vehicles leaving the clinic, and sixty-
four trash pulls conducted at the clinic.
35
Green argues that Quinones’s statement about the 300 known drug offenders
was “a summary of the work he had done,” and that the government “was under an
evidentiary obligation to present the information upon which he relied in compiling
that summary statistic,” but this argument fails too. Federal Rule of Evidence 1006
permits parties to present summaries of evidence and requires only that the
proponent of the evidence “make the originals or duplicates available for
examination or copying, or both, by other parties at a reasonable time and place.”
Fed. R. Evid. 1006. Green does not argue that the facts supporting Quinones’s
statement were not readily available to him.
Green also argues that the testimony should have been excluded as unduly
prejudicial, but the district court was entitled to find to the contrary. To be sure,
“[t]he court may exclude relevant evidence if its probative value is substantially
outweighed by a danger of . . . unfair prejudice.” Fed. R. Evid. 403. But we have
explained that “Rule 403 is an extraordinary remedy which should be used only
sparingly since it permits the trial court to exclude concededly probative evidence.
In criminal trials relevant evidence is inherently prejudicial. [Thus, t]he rule
permits exclusion only when unfair prejudice substantially outweighs probative
value.” Merrill, 513 F.3d at 1301 (quoting Betancourt, 734 F.2d at 757). The
evidence that many of Green’s patients were either drug abusers or drug sellers
36
was probative of Green’s guilt. The testimony was relevant to prove that many of
Green’s patients either abused their drugs or sold their drugs and that Green either
knew or should have known about his patients’ misuse of their prescription drugs.
The district court did not abuse its discretion when it admitted the testimony.
D. Sufficient Evidence Supports the Defendants’ Convictions.
Green and Mack raise two objections to the sufficiency of the evidence to
support their convictions. First, Green and Mack argue that the prosecution
presented insufficient evidence to convict them as to counts 52 through 83, for
unlawfully dispensing or distributing controlled substances by pre-signing
prescriptions during the week of September 23, 2002. Second, Green argues that
the prosecution presented insufficient evidence about the standard of medical
practice against which the jury had to evaluate their conduct. We discuss each
argument in turn.
1. Sufficient Evidence Supports the Convictions of Green and Mack For
Delivering Pre-Signed Prescriptions.
Green and Mack argue that there was insufficient evidence to convict them
of counts 52 through 83, for unlawfully dispensing or distributing controlled
substances by pre-signing prescriptions during the week of September 23, 2002,
but we disagree. Counts 52 through 83 charged Green and Mack with knowingly
37
dispensing or distributing a Schedule II controlled substance without a legitimate
medical purpose and outside the usual course of professional practice. The
indictment charged that Green signed the prescriptions before September 23, 2002,
and that Mack delivered the prescriptions to 32 patients during the week of
September 23, 2002. To convict Green of violating section 841(a)(1), the
prosecution must “prove that he dispensed controlled substances for other than
legitimate medical purposes in the usual course of professional practice, and that
he did so knowingly and intentionally.” Ignasiak, 667 F.3d at 1228 (quoting
Guerrero, 650 F.2d at 730). The mens rea required for a conviction under section
841(a)(1) is knowledge, not willfulness. Tobin, 676 F.3d at 1279–80. “Because
the [Act] prohibits the distribution of prescription drugs that is not authorized, a
distribution is unlawful if 1) the prescription was not for a ‘legitimate medical
purpose’ or 2) the prescription was not made in the ‘usual course of professional
practice.’” Id. at 1282 (citation omitted). Mack was charged and convicted as both
a principal, 21 U.S.C. § 841(a)(1), and an aider and abettor, 18 U.S.C. § 2. “To
sustain a conviction under an aiding and abetting theory, the prosecution must
show that ‘the defendant associated [her]self with a criminal venture, participated
in it as something [s]he wished to bring about, and sought by [her] actions to make
38
it succeed.’” United States v. Pantoja–Soto, 739 F.2d 1520, 1525 (11th Cir. 1984)
(quoting United States v. Bryant, 671 F.2d 450, 454 (11th Cir. 1982)).
The government presented sufficient evidence to sustain the convictions of
Green and Mack as to counts 52 through 83. Green and Mack both testified that
they violated a federal regulation that provides that “[a]ll prescriptions for
controlled substances shall be dated as of, and signed on, the day when issued.” 21
C.F.R. § 1306.05. Mack also conceded that she lacked the authority to write
prescriptions for Schedule II substances, that she knew she lacked the authority to
do so, and that she nevertheless delivered the prescriptions for Schedule II
substances to her patients. Dr. Straus, the expert witness of the government,
testified that it is a violation of both federal and state regulations to issue pre-
signed and pre-dated prescriptions. Dr. Straus testified that a reasonable doctor
and physician’s assistant would know that it is unlawful to distribute pre-signed
prescriptions. Dr. Straus testified that the prohibition against pre-signed
prescriptions is designed to ensure that all patients receive a medical examination
by a licensed physician before the physician prescribes the patient a drug and to
ensure that physicians do not act as drug pushers by writing prescriptions for
patients with no medical need for those prescriptions.
39
Although we agree with Green and Mack that a violation of section 1306.05
does not constitute a per se violation of section 841, the jury was entitled to infer,
based on Green’s pre-signing and pre-dating of the prescriptions and Mack’s
delivery of those prescriptions to Green’s patients, that they violated the Act. The
record establishes that Green and Mack delivered Schedule II prescriptions to
patients who were never examined by a physician. Mack met with those patients,
but even she performed no physical examinations or only cursory physical
examinations. Mack delivered the prescriptions based on her judgment that the
patients had a legitimate medical need for the Schedule II substances, but she
lacked authority to make that medical conclusion. And a physician’s delivery of a
prescription without conducting any physical examination of the patient provides
strong evidence to support a conviction under the Act. See United States v. Rosen,
582 F.2d 1032, 1036 (5th Cir. 1978) (stating that conduct creating an inference that
the defendants violated section 841(a)(1) includes instances where “[n]o physical
examination was given”); see also United States v. McIver, 470 F.3d 550, 564 (4th
Cir. 2006).
Green and Mack both testified at trial, and their testimony provided
“substantive evidence of [their] guilt.” United States v. Brown, 53 F.3d 312, 314
(11th Cir. 1995). We have explained that “a defendant’s decision to take the stand
40
and testify to his own state of mind provides the rare opportunity for direct
evidence to be presented to the jury.” Tobin, 676 F.3d at 1287. “[A] defendant’s
decision to offer testimony on the issue of mens rea can also be fatal to his attempt
to exculpate himself,” because his testimony may be used as substantive evidence
of guilt. Id. “In fact, where there is ‘some corroborative evidence’ of guilt, a
defendant's testimony ‘may establish, by itself, [the] elements of the offense.’” Id.(quoting Brown, 53 F.3d at 314–15). Mack testified that she did not know that she
was not permitted to distribute the pre-signed prescriptions, and she testified that
she thoroughly examined all 32 patients and determined that they had a legitimate
medical need for the prescriptions. Green testified that the Drug Enforcement
Agency permitted him to pre-sign the prescriptions. The jury was entitled to
evaluate the credibility of Green and Mack, discredit their testimony, and infer that
their testimony instead provided substantive evidence of their guilt.
A reasonable jury could have found that both Green and Mack violated the
Act, and that Mack aided and abetted Green’s violations of the Act. “Based upon
this evidence, in combination with the experts’ testimony, we cannot say the ‘jury
could not have found the defendant guilty under any reasonable construction of the
evidence.’” Ignasiak, 667 F.3d at 1229 (quoting Merrill, 513 F.3d at 1299).
Sufficient evidence supports the convictions of Green and Mack.
41
2. Sufficient Evidence Supports the Finding that Green Violated the Applicable
Standard of Practice.
Green argues that the prosecution presented insufficient evidence to convict
him of any count because the prosecution failed to prove the standard of medical
practice against which the jury was required to measure his conduct, but we
disagree. Before the district court, Green filed a motion for a judgment of
acquittal, Fed. R. Crim. P. 29(c), in which he argued that the prosecution presented
insufficient evidence to sustain his conviction, but Green failed to make the
argument he raises here. Although we customarily review de novo the sufficiency
of evidence supporting a conviction, Baker, 432 F.3d at 1231, because Green “did
not clearly object to the trial court on this insufficient-evidence basis, the district
court can be reversed only upon our finding of plain error.” Dunlap, 279 F.3d at966–67.
Green argues that the prosecution failed to present sufficient expert
testimony about the applicable standard of practice, but “the Government does not
have to present proof through the use of expert testimony.” Rogers, 609 F.2d at
839. “The ultimate issue was not whether [Green’s] activities comported with
accepted standards of medical practice but whether he knowingly prescribed
controlled substances for no legitimate medical purpose outside the course of his
42
professional practice.” Noell v. Bensinger, 586 F.2d 554, 557 (5th Cir. 1978).
Although expert testimony is often helpful to the jury, “a jury can find that a doctor
prescribed controlled substances not in the usual course of his medical practice and
was acting other than for a legitimate medical purpose from evidence received
from lay witnesses surrounding the facts and circumstances of the prescriptions.”
Rogers, 609 F.2d at 839.
The record contains substantial evidence from which a reasonable jury could
have found that Green acted without a legitimate medical purpose and outside the
usual course of professional practice. Conduct that suggests that a defendant
distributed a prescription without a legitimate medical purpose and outside the
usual course of professional practice includes conduct where “[a]n inordinately
large quantity of controlled substances was prescribed[,] . . . [l]arge numbers of
prescriptions were issued[,] . . . [n]o physical examination was given[,] . . . [t]he
physician issued prescriptions to a patient known to be delivering the drugs to
others[,] . . . [and] [t]here was no logical relationship between the drugs prescribed
and treatment of the condition allegedly existing.” Rosen, 582 F.2d at 1036. The
record establishes that Green prescribed an inordinate amount of certain controlled
substances, that he did so after conducting no physical examinations or only a
cursory physical examination, that Green knew or should have known that his
43
patients were misusing their prescriptions, and that many of the combinations of
prescription drugs were not medically necessary.
Both the prosecution and the defense also presented the jury with substantial
expert testimony about the applicable standard of professional conduct. Dr. Straus
testified at length about the applicable standard. Dr. Straus testified that there are
medical standards in the practice of pain management, and he explained how
doctors must treat their patients to comport with those standards. Dr. Straus
testified that doctors must first conduct a comprehensive physical exam, conduct
any appropriate laboratory testing, and inquire into a patient’s medical history
before diagnosing the patient’s illness. Dr. Straus testified that a pain management
doctor must consider whether there are any red flags that indicate the patient is
abusing his prescription drugs. Dr. Straus testified that doctors should consider
ways to treat pain other than through narcotics treatment, that it is customarily
inappropriate for a physician to treat a patient by immediately prescribing him a
controlled substance, and that if the doctor decides to prescribe a controlled
substance, he should move “up the ladder” and begin his treatment by distributing
less powerful and less addictive drugs. Dr. Straus testified that, after prescribing a
drug, accepted medical standards require a doctor to follow up with the patient and
ensure that the patient still needs that prescription. Dr. Straus also testified that the
44
medical standards require doctors to document their treatment of patients and
record the prescriptions they issue to their patients. Dr. Straus then testified that,
based on his review of the medical records maintained by Green and Mack, their
medical treatment was “below minimum standards on recordkeeping, on treatment,
on diagnosis.” Dr. Straus testified that there was no legitimate medical reason to
prescribe many of the combinations of drugs that Green prescribed for his patients.
And Dr. Straus concluded that, after reviewing the medical records, “trying to find
legitimate medical reasons that isn’t, sort of, you’re really bending over backwards
and just making stuff up to justify [the medical practices of Green and Mack].” Dr.
Adams also described the applicable standard of medical practice. Dr. Adams
testified about the range of medically acceptable ways to treat patients with
physical pain, and he testified that doctors must tailor which drugs they prescribe
based on the needs of each individual patient. Dr. Adams also testified that doctors
must maintain comprehensive medical records, and that he had difficulty
understanding Green’s byzantine medical records.
E. Green’s Sentence Is Reasonable.
Green argues that the district court abused its discretion when it sentenced
Green to 30 years of imprisonment. Because the jury found Green guilty of one
count of unlawfully dispensing or distributing a controlled substance that caused
45
death or serious bodily injury, a mandatory minimum sentence of 20 years of
imprisonment, and a statutory maximum sentence of life in prison, applied to
Green. See 21 U.S.C. § 841(b)(1)(C). Green’s presentence investigation report
calculated Green’s offense level as 42, his criminal history category as I, and his
guideline range as 30 years of imprisonment to life imprisonment. The district
court adopted the guideline range of the presentence investigation report, and
Green does not contend that the district court incorrectly calculated his guideline
range. Green instead argues that the district court abused its discretion when it
imposed a sentence of 30 years of imprisonment and refused to adopt a downward
variance from his guideline range. Green argues that the purposes of sentencing
may be achieved with the mandatory minimum sentence of 20 years of
imprisonment, not a sentence of 30 years, which effectively amounts to a life
sentence.
Section 3553(a) requires the district court to impose a sentence “sufficient,
but not greater than necessary,” to comply with the purposes of sentencing. 18
U.SC. § 3553(a). The purposes of sentencing include the need for the sentence “to
reflect the seriousness of the offense, to promote respect for the law, and to provide
just punishment for the offense”; “to afford adequate deterrence to criminal
conduct”; “to protect the public from further crimes of the defendant”; and “to
46
provide the defendant with needed educational or vocational training, medical care,
or other correctional treatment in the most effective manner.” Id. § 3553(a)(2).
The district court must also consider “the nature and circumstances of the offense
and the history and characteristics of the defendant,” “the kinds of sentences
available,” the Guidelines range, any pertinent policy statements of the Sentencing
Commission, “the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of similar conduct,”
and “the need to provide restitution to any victims of the offense.” Id.
§ 3553(a)(1), (3)–(7). “We will defer to the district court's judgment regarding the
weight given to the § 3553(a) factors unless the district court has made a clear error
of judgment and has imposed a sentence that lies outside the range of reasonable
sentences dictated by the facts of the case.” Gonzalez, 550 F.3d at 1324 (internal
quotation marks omitted).
The sentence imposed by the district court is reasonable. This sentence was
at the nadir of Green’s guideline range of 30 years of imprisonment to life
imprisonment. Although we have not adopted a presumption that a sentence
within the guideline range is reasonable, we have stated that “ordinarily we would
expect a sentence within the Guidelines range to be reasonable.” United States v.
Chavez, 584 F.3d 1354, 1365 (11th Cir. 2009) (quoting United States v. Talley,
47
431 F.3d 784, 788 (11th Cir. 2005)). The jury convicted Green of 46 counts of
violating or conspiring to violate the Controlled Substances Act, including one
count of unlawfully dispensing or distributing controlled substances and causing
death or serious bodily injury. Both the statutory penalty and the guideline range
permitted the district court to impose a much more severe sentence of
imprisonment. The district court did not abuse its discretion when it sentenced
Green to 30 years of imprisonment.
IV. CONCLUSION
We AFFIRM the convictions of Green, Mack, and Joseph, and the prison
sentence of Green.
48
FRIEDMAN, District Judge, concurring:
I concur in the decision to affirm the convictions of all three appellants in
this case and join fully in the analysis contained in Judge Pryor’s persuasive
opinion for the court.
I add these few additional comments with respect to the sufficiency of the
evidence challenge raised by appellant Dorothy Mack. Her counsel argues, among
other things, that there was insufficient evidence regarding her mens rea. I agree
with my colleagues that there was sufficient evidence to convict Mack based on
her admitted violations of 21 C.F.R. § 1306.05 – which is relevant evidence,
though not sufficient in itself – her admissions on the witness stand, and the jury’s
assessment of her credibility, as well as additional circumstantial evidence of her
guilt. I am concerned, however, that the jury was never instructed that Mack could
be convicted as an aider and abettor only if she held the same mens rea as her
principal, Dr. Green.
Ms. Mack was charged in the Indictment as both a principal and an aider and
abettor. Throughout the trial, however, the government’s theory was exclusively
one of aiding and abetting, and the district judge clearly perceived it as such. As
the court’s opinion points out, to prove aiding and abetting, the government must
show that “the defendant associated [her]self with a criminal venture, participated
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in it as something [s]he wished to bring about, and sought by [her] actions to make
it succeed.” Opinion at 38–39 (quoting United States v. Pantoja-Soto, 739 F.2d
1520, 1525 (11th Cir. 1984)). It is equally clear, however, that under such a theory
the government also had to show that Mack had the same mens rea Dr. Green had,
see United States v. Leonard, 138 F.3d 906, 909 (11th Cir. 1998), something the
jury was never told. In my view, this means that the government would have had
to prove either that Mack knew there was no “legitimate medical purpose” for the
prescriptions written by Dr. Green, or knew that Dr. Green, by failing to properly
examine patients and directing Mack to give pre-signed prescriptions to these
patients on his behalf, was not acting in the “usual course of professional
practice.”1
The prosecutor argued to the jury that Mack had the same obligation as Dr.
Green “to make sure that the medical care is legitimate,” and the trial judge, in
denying a post-trial Rule 29 motion, stated that the jury could reasonably have
found that Mack was aware that the prescriptions “were not for a legitimate
medical purpose.” Yet the jury instructions given with respect to Mack failed to
1
Even as a principal, Mack would have had to have been aware that there was no legitimate
medical purpose for the prescriptions issued by Dr. Green in order to be convicted. United States
v. Lovern, 590 F.3d 1095, 1196 (10th Cir. 2009).
50
explain any of this, despite numerous requests from her lawyer. During the charge
conferences, counsel for Mack specifically requested an instruction on “not for
legitimate medical purpose” and “outside the usual course of professional
practice.” He argued that the government had to prove “this additional feature of
the case; in fact, it’s an essential one to make this case work, the legitimacy and
usualness of it.” He also requested a “good faith” defense charge.
When it came time for jury instructions, however, the district judge
instructed the jury about these safe havens with respect to Dr. Green and Mr.
Joseph, the pharmacist, but not Ms. Mack. The court instructed the jury that Dr.
Green could lawfully dispense and distribute controlled substances by prescriptions
“for legitimate medical purposes and in the usual course of professional practice,”
and gave a similar instruction regarding Mr. Joseph. The district court also
explained to the jury that a doctor is acting in the course of his professional
practice if he prescribes a substance “in good faith as part of his medical
treatment,” and that a pharmacist who dispenses a controlled substance “in good
faith” pursuant to a prescription does not violate the Controlled Substances Act.
Conspicuously absent was any instruction that, as an aider and abettor, Ms. Mack,
a physician’s assistant, had to know that the prescriptions Dr. Green issued were
not for a legitimate medical purpose or issued in the usual course of professional
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practice or that Mack’s good faith reliance on Dr. Green was a relevant factor for
the jury’s consideration.2
The arguments Mack makes in this court are based exclusively on the
asserted insufficiency of the evidence and not on these inadequacies in the district
court’s instructions to the jury. Indeed, in response to questions at oral argument,
counsel specifically stated that he was not making an argument based on any
failings in the jury instructions. Because the issues that concern me relating to the
jury instructions have not been raised on appeal, and because, drawing all
reasonable inferences in the light most favorable to the government, I agree there
was sufficient evidence for a reasonable jury to find Mack guilty beyond a
reasonable doubt, United States v. Hernandez, 433 F.3d 1328, 1333-34 (11th Cir.
2005), I join the court’s opinion in all respects.
2
It is not clear from the record whether Mack’s counsel adequately objected to these
deficiencies in the instructions pursuant to Rule 30(c) of the Federal Rules of Criminal
Procedure. After the jury was charged, he said: “I would just like to preserve the objections [to
the instructions] I previously made, Your Honor. No new ones.”
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