United States v. Poet , 315 F. App'x 389 ( 2009 )

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
3-3-2009
USA v. Poet
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-3933
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-3933
UNITED STATES OF AMERICA
v.
ALBERT POET,
Appellant
(D.C. Crim. No. 06-cr-00643)
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
District Judge: The Honorable Anne E. Thompson
Submitted Under Third Circuit LAR 34.1(a)
November 18, 2008
Before: BARRY, CHAGARES, Circuit Judges, and COHILL, Jr.,* District Judge
(Opinion Filed: March 3, 2009)
OPINION
COHILL, Senior District Judge.
*
Honorable Maurice B. Cohill, Jr., Senior United States District Judge for the Western
District of Pennsylvania, sitting by designation.
Defendant Albert Poet appeals his conviction for thirteen counts of mail fraud, in
violation of 18 U.S.C. §§ 1341 and 2, and one count of misbranding a drug while held for
sale, in violation of 21 U.S.C. §§ 331(k), 333(a)(2), 352(i)(3) and 18 U.S.C. § 2. We will
affirm.
I.
Because we write only for the parties, we set forth only those facts that are relevant
to our analysis.
Dr. Albert Poet is a physician who practices in New Jersey. Among other things,
he performed wrinkle removing treatments for his patients. In February 2005, the
Government began investigating Dr. Poet’s purchase and use of a form of Botulinum
Toxin Type A, a highly poisonous protein toxin which can be used to treat forehead
wrinkles. He purchased the drug (“Tritox”) from Toxin Research International, Inc., a
Tucson, Arizona pharmaceutical company. Tritox was not approved by the Food and
Drug Administration; the only form of drug containing Botulinum Toxin Type A which is
approved by the FDA is Botox® or Botox® Cosmetic which is manufactured by
Allergan, Inc.
On June 6, 2005, the Government and Dr. Poet entered a proffer agreement. Dr.
Poet was interviewed, during which he gave a statement. Dr. Poet was indicted on
August 24, 2006. The Indictment charged that Dr. Poet, in an effort to obtain surplus
profits, administered to his patients non-FDA-approved Tritox, which was clearly labeled
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“Not For Human Use” and was significantly less expensive than Botox® Cosmetic. At
the same time, the indictment charged, Dr. Poet led patients to believe, through his
advertisements, consent forms and such, that he was injecting them with FDA-approved
Botox® Cosmetic, all the while charging them the surplus, higher amount that he would
have charged for treatment with the more expensive, FDA-approved drug.
On January 16, 2007, the Government filed a pretrial motion to enforce the proffer
agreement. The motion was filed as a means of putting Dr. Poet on notice that if he
presented an argument or evidence contrary to the facts he had asserted in the proffer, the
government wanted to present evidence of Poet’s own words to the jury. The District
Court granted the motion after hearing argument. In addition, prior to trial, Dr. Poet
sought dismissal of the indictment on the grounds, inter alia, that Congress had
determined that fraud crimes involving drugs regulated by the FDA must be prosecuted
under the Food, Drug and Cosmetic Act. The District Court denied the motion to dismiss.
After his conviction, Dr. Poet renewed his motion to dismiss the indictment and
moved for acquittal and a new trial, arguing, inter alia, that he was hampered in his
presentation of “state of mind”evidence, and, again, that he could not be charged with
mail fraud because all of the Title 18 charges against him were precluded by the Food,
Drug, and Cosmetic Act. The District Court denied these motions.
On September 28, 2007, Dr. Poet was sentenced to 14 months’ imprisonment, a
term of 2 years’ supervised release, a fine of $15,000, and restitution in the amount of
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$6,050. He now appeals.
II.
We have jurisdiction under 28 U.S.C. § 1291. We review the District Court’s
rulings on objections to the admissibility of evidence of good faith and state of mind to
determine if the alleged errors so infected the jury’s deliberations as to have had a
substantial influence on the outcome of the trial. U.S. v. Copple, 24 F.3d 535, 547 n.17
(3d Cir. 1994). We exercise plenary review over whether the government breached the
proffer agreement. U.S. v. Coyle, 63 F.3d 1239, 1343 (3d Cir. 1995). We also exercise
plenary review over the District Court’s interpretation of a statute. U.S. v. Wasserson,
418 F.3d 225, 232 n. 4 (3d Cir. 2005).
III.
Dr. Poet’s first argument is that the District Court deprived him of a fair trial by
barring him from presenting evidence of his state of mind or good faith. He further
argues that the District Court’s rulings were tainted by its knowledge of the proffer
agreement, and in addition, various rulings were designed, perhaps unconsciously, either
to force him to testify or to deprive him of his defense. We find no error.
Mail fraud is a specific intent crime and the government is required to prove
beyond a reasonable doubt that the defendant intended to defraud. U.S. v. Bakker, 925
F.2d 728, 738-39 (4 th Cir. 1991). The government must prove the following elements:
(1) the defendant’s knowing and willful participation in a scheme or artifice to defraud,
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(2) with the specific intent to defraud, and (3) the use of the mails in furtherance of the
scheme. U.S. v. Hedaithy, 392 F.3d 580, 590 (3d Cir. 2004).
At trial Dr. Poet’s defense was that the TRI product he used was marketed to him
as a drug currently undergoing the FDA approval process, that he found the TRI product
to be more efficacious than the Allergan, Inc. brand, that he referred to all of his wrinkle
treatments by what he calls a generic name “botox” and that he did not, as is standard
medical practice, routinely tell his patients which drug he was using or that the drug was
not FDA approved. Specifically, Dr. Poet sought to introduce testimony of an expert
physician as to the reasonableness of his interpretation of the Tritox drug’s label. This
testimony, like much of the testimony he attempted to elicit, was excluded on the grounds
that the defendant’s state of mind was difficult to establish through the testimony of
someone other than the defendant himself. Dr. Poet further argues that the District Court
erred in ruling the following evidence was irrelevant: evidence that the term “Botox” had
been used before Allergan, Inc. secured its trademark and therefore the trademark was
invalid, evidence that the term was used in a generic fashion, evidence of the quality and
effectiveness of Tritox, testimony of Poet’s statements to others as to what he had heard
about Tritox, and cross examination of the government’s expert on numerous of these
same issues.
We find that none of the alleged errors so infected the jury’s deliberations so as to
have had a substantial influence on the outcome of the trial. Copple, 24 F.3d at 547 n.17.
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We note that a district court’s decision to exclude arguably relevant evidence is reviewed
for an abuse of discretion, with that discretion construed especially broadly in the context
of Fed. R. Evid. 403. U.S. v. Kemp, 500 F.3d 257, 295 (3d Cir. 2007). Whether the
trademark for Botox® Cosmetic was valid or not is irrelevant as to whether Dr. Poet
misled his patients into believing that they were receiving the FDA-approved Botulinum
Toxin Type A. Furthermore, we agree that whether Tritox is effective is irrelevant to the
issue of whether Dr. Poet intended to mislead his patients by substituting one drug for
another; 18 U.S.C. § 1341 does not require that the intended victim be actually harmed or
defrauded. U.S. v. Frey, 42 F.3d 795, 800 (3d Cir. 1994).
In addition, Dr. Poet sought to admit the statement of a witness to show that
someone else had informed him that Tritox was in the FDA-approval process; this is
clearly inadmissible hearsay. Fed. R. Evid. 803(3). We also find that the District Court
did not abuse its discretion when it excluded testimony as to the common practice of
doctors regarding the FDA status of drugs that they administer. Such evidence would
have had no bearing on whether Dr. Poet specifically intended to mislead his patients
about the identity and FDA-approval status of the drug injected into their bodies.
Even so, after reviewing the record we note that much of the evidence of which
Dr. Poet now complains, e.g., the generic nature of the term “botox”, the effectiveness of
Tritox, and Poet’s belief that Tritox was in the FDA-approval process, was heard by the
jury through alternative means, thus rendering any error harmless. Moreover, although
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Dr. Poet may have felt constrained by the proffer agreement and the content of his proffer
statement, it is clear that the District Court’s rulings were not “tainted” by its knowledge
of the proffer agreement.
Dr. Poet’s next major argument is that the government violated the express terms
of the proffer agreement when it presented the proffer statement to the trial court in its
pretrial motion. The proffer agreement provided that Dr. Poet was waiving his right to the
protections of Fed. R. Evid. 410 and Fed. R. Crim. P. 11(f), that is, that statements made
during plea discussions that do not result in a guilty plea are ordinarily inadmissible at
trial. Poet does not allege that the proffer agreement was entered into unknowingly or
involuntarily.
Section 1 of the proffer statement provides that “no statements made by your client
during the interview will be used against your client in the government’s case-in chief at
trial or for purposes of sentencing . . . . ” Here the government did not offer the proffer
agreement during its case-in-chief. Instead, the government sought a pretrial ruling that it
could use Poet’s proffer statement in the event that he “presents a case, through argument,
evidence, cross-examination, or direct testimony, contrary to the facts he asserted in the
proffer.” The District Court agreed that – if necessary – the government could
“introduce the defendant’s own words to provide a full picture of the situation for the jury
and the Court.” Judge Thompson further explained that she was “going to have to study
the proffer and make sure I have more than just a casual acquaintance with it which is
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what I have now . . . so that when I hear objections during the course of the trial, I would
be in a position to rule on them” and not have to “stop the trial as we go along.” We find
that the District Court did not err in adopting this sensible procedure.
As to Dr. Poet’s third argument that he could not be charged under the mail fraud
statute, we find that the District Court did not err in not dismissing the thirteen mail fraud
counts in the indictment. The case law, statutory language and history support the finding
that the government was justified in charging him with that offense. First, we note that
there is no indication that Congress intended that all conduct that is independently
violative of the mail fraud statute must instead be prosecuted under the Food, Drug and
Cosmetic Act. Rather, the government has some discretion to chose to prosecute
defendants under one of two overlapping statutes so long as there is no discrimination
against any class of defendants and assuming, as is the case here, that the conduct alleged
violates either statute. U.S. v. Batchelder, 442 U.S. 114, 123-24 (1979). Second, we note
that the conduct alleged against Dr. Poet is unambiguously encompassed in 18 U.S.C.
§1341. He devised a scheme to defraud his patients by receiving through commercial
interstate carrier, non-FDA-approved Tritox, and administered this drug to his patients
while causing them to believe that they would be receiving FDA-approved Botox®
Cosmetic, and charging them the Botox® Cosmetic price even though Tritox cost less
than half as much for him to purchase. Moreover, the mail fraud charge was separate and
distinct from a misbranding charge because it required the government to prove two
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elements separate from the elements of the misbranding offense, namely, that Dr. Poet (1)
used an interstate commercial carrier (2) in furtherance of the scheme or artifice to
defraud. Compare 21 U.S.C. §§ 331(k), 333(a)(2), 352(i)(3) with 18 U.S.C. § 1341.
Finally, Dr. Poet argues that the indictment should have been dismissed because a
government witness, Special Agent Marc Hess, made what Dr. Poet describes as an
“intentional misstatement of material fact” which improperly influenced the grand jury
when it decided to indict Dr. Poet. There is no dispute that Hess incorrectly stated in his
testimony before the grand jury that patients of another doctor in Florida had been
seriously injured by injections with the TRI-manufactured Tritox product. In fact, as the
government later learned, another product supplied by TRI’s supplier had caused the
injuries. We find that the District Court did not err when it found that this testimony did
not prejudice Dr. Poet because the testimony was confined to one question, was not an
allegation that was included in the indictment, and was not material to the elements of the
offense charged. When viewed in conjunction with all the evidence which was presented
to the grand jury, we cannot say that this testimony could have had a substantial influence
on the outcome of the proceeding. Bank of Nova Scotia v. U.S., 487 U.S. 250, 256
(1988).
IV.
For the foregoing reasons, we will affirm the judgment of the District Court.
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