United States v. John Anthony Gianoli, III , 537 F. App'x 849 ( 2013 )

Case: 12-14814 Date Filed: 09/16/2013 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-14814
Non-Argument Calendar
________________________
D.C. Docket No. 8:11-cr-00501-SCB-MAP-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN ANTHONY GIANOLI, III,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(September 16, 2013)
Before CARNES, Chief Judge, MARCUS and KRAVITCH, Circuit Judges.
PER CURIAM:
Case: 12-14814 Date Filed: 09/16/2013 Page: 2 of 5
John Anthony Gianoli, III, appeals his conviction for acting outside the
course of professional practice as a physician by distributing Oxycodone, in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), and (b)(1)(E)(i), arguing that the
jury was improperly instructed. He also challenges his 60 month sentence, arguing
that the sentencing enhancement for abuse of a position of trust was double-
counted and that the district court wrongly admitted non-victim witness testimony
at the sentencing hearing.
I.
We generally “review jury instructions de novo to determine whether they
misstate the law or mislead the jury to the prejudice of the objecting party.”
United States v. James, 642 F.3d 1333, 1337 (11th Cir. 2011). But because
Gianoli did not object to them in the district court, we review only for plain error.
See id.The court instructed the jury that to convict it must find that Gianoli “either
acted outside the usual course of professional practice or acted without legitimate
medical purpose.” Because Gianoli’s indictment charged that he “did knowingly
and intentionally act outside the course of professional practice” by distributing
Oxycodone, he argues that it was error to instruct the jury that it could convict him
for acting without a legitimate medical purpose.
2
Case: 12-14814 Date Filed: 09/16/2013 Page: 3 of 5
Gianoli’s argument is unpersuasive. 1 There was no evidence or argument
presented at trial that would lead the jury to conclude that Gianoli prescribed
Oxycodone knowing it was for no legitimate medical purpose but still acted within
the usual course of the medical profession. Those two things are inconsistent with
each other. And the court’s instructions were consistent with the law. See United
States v. Tobin, 676 F.3d 1264, 1282 (11th Cir. 2012) (“[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.’”). The
court did not err—plainly or otherwise—in giving that instruction.
Gianoli also argues that the district court erred by using a general verdict
form, making it impossible to know under which theory he was convicted.
Gianoli proposed that a general verdict form be given to the jury, and the district
court followed that request. Any error the district court may have made in giving
the jury a general verdict form was therefore invited and cannot be challenged on
appeal. See James, 642 F.3d at 1337.
II.
Gianoli next argues that he was doubly penalized for his position as a
physician because the court applied the two-level enhancement for abuse of a
1
It is notable that Gianoli himself introduced the “legitimate medical purpose” language,
requesting that the jury be told that to convict, it must find that he dispensed Oxycodone “other
than for a legitimate medical purpose and not in the usual course of medical practice.”
3
Case: 12-14814 Date Filed: 09/16/2013 Page: 4 of 5
position of public trust or use of a special skill, provided for in U.S.S.G. § 3B1.3,
even though his conviction was based on his conduct as a physician. “We review
de novo a district court’s conclusion that the defendant’s conduct justifies the
abuse of trust enhancement.” United States v. Ghertler, 605 F.3d 1256, 1264 (11th
Cir. 2010).
Gianoli is correct that the U.S.S.G. § 3B1.3 enhancement cannot be applied
if abuse of trust or skill is included in the base offense level or specific offense
characteristic. U.S.S.G. § 3B1.3; see also United States v. Garrison, 133 F.3d 831,
842–843 (11th Cir. 1998). But his contention that his conviction already
incorporates his abuse of his position as a doctor is incorrect. The Controlled
Substances Act states that, except as authorized, it is unlawful for a person to
knowingly or intentionally distribute or dispense a controlled substance. 21 U.S.C.
§ 841(a)(1). That statute applies to anyone who distributes a controlled substance,
not just physicians. Physician defendants are not subject to an increased base
offense level based on their profession and special skills. See U.S.S.G. § 2D1.1(a),
(b). And the application notes state that professionals, including doctors, who used
special skills in the commission of the offense may be subject to an enhancement
under U.S.S.G. § 3B1.3. U.S.S.G. § 2D1.1, cmt. n.8 (Nov. 1, 2011). Accordingly,
it was not plain error to apply the § 3B1.3 enhancement, and we affirm Gianoli’s
sentence.
4
Case: 12-14814 Date Filed: 09/16/2013 Page: 5 of 5
III.
Finally, Gianoli argues for the first time on appeal that the district court
should not have permitted any witnesses to testify at sentencing about his
prescribing drugs to their relatives and neighbors because they were not direct
victims of the misconduct for which Gianoli was convicted. Because he did not
make that argument in the district court, we review only for plain error. United
States v. Garey, 546 F.3d 1359, 1363 (11th Cir. 2008). Gianoli bases his argument
on the Crime Victims’ Rights Act, which requires that certain persons classified as
crime victims be given notice of and the opportunity to be heard at certain
hearings, including sentencing hearings. 18 U.S.C. § 3771(a), (b). But that act
does not limit the information concerning the background, character, and conduct
of a person convicted of an offense that a court may hear at sentencing. 18 U.S.C
§ 3661. The sentencing judge may conduct a broad inquiry, “largely unlimited”
either as to the kind of information he may consider, or the source from which it
may come. United States v. Tucker, 404 U.S. 443, 446, 92 S.Ct. 589, 591 (1972).
Accordingly, the district court did not err—much less plainly err—by permitting
the non-victim witnesses to testify.
AFFIRMED.
5