United States v. Donna George ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4515
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DONNA MARIE GEORGE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (1:09-cr-00431-JCC-1)
ARGUED: December 6, 2011 Decided: February 21, 2012
Before TRAXLER, Chief Judge, and DUNCAN and AGEE, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Charles Burnham, BURNHAM & GOROKHOV PLLC, Washington,
D.C., for Appellant. Joshua L. Rogers, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF:
Neil H. MacBride, United States Attorney, Gene Rossi, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Donna Marie George was convicted of one count of conspiracy
to distribute oxycodone and two counts of distribution of
oxycodone and sentenced to 148 months’ imprisonment. See 21
U.S.C. §§ 841, 846. George appeals, challenging her convictions
and sentence. For the reasons set forth below, we affirm.
I.
Viewed in the light most favorable to the government, the
evidence presented at trial established that George was addicted
to prescription narcotics. She fed her addiction through
“doctor shopping” – seeing multiple doctors to get multiple
prescriptions and selling the extra pills. Most of the
prescriptions were for Oxycontin, a time-released version of
oxycodone, although George obtained and used other pain
medications as well. Lisa and Richard Sindelar were also
addicts; they supported their habit by forging prescriptions.
Using a computer and a copier, the Sindelars created
prescriptions that appeared to be written by a doctor at a pain
clinic.
A mutual acquaintance introduced George and the Sindelars
in March 2007, and George thereafter began selling the
Sindelars’ pills. The Sindelars initially sold the drugs to the
mutual acquaintance, who then sold them to George, who
distributed them at the street level. In May 2007, the
2
Sindelars began working directly with George. By June 2007,
George and the Sindelars had become good friends. George
regularly babysat for the Sindelars’ young children, and Richard
Sindelar occasionally created the fake prescriptions at George’s
house. George’s adult daughter, Cindy Carter, was frequently at
her house, and Carter and Lisa Sindelar also became friends.
Carter, who was also addicted to pain pills, sometimes served as
one of the runners who took the Sindelars’ forged prescriptions
to a pharmacy for filling.
In September 2007, Carter was arrested after filling a fake
prescription. Carter agreed to cooperate with the FBI, and
Richard Sindelar was arrested shortly after Carter called him to
arrange a drug transaction. Lisa Sindelar was arrested in
October 2007. After the Sindelars were arrested, George carried
on, getting her supply through her doctor-shopping scheme and
occasionally from a connection in Washington, D.C. George was
finally arrested by the FBI in August 2009.
The Sindelars eventually pleaded guilty to drug-
distribution charges, but George proceeded to trial. At trial,
Lisa Sindelar testified that she and her husband lacked George’s
contacts and that George was their main street-level
distributor. According to Sindelar, she and her husband were
providing George with as many as four or five 90-pill
3
prescriptions a day, and George was buying $8,000 – $10,000
worth of drugs a week from them.
George’s position at trial was that while she was addicted
to prescription medications and sometimes bought and sold a few
pills, she was not part of the conspiracy operated by the
Sindelars. Although George did not testify, her claim of
limited involvement with the Sindelars was supported by the
testimony of George’s daughter, who was a reluctant witness for
the government. On cross-examination, Carter disputed much of
Sindelar’s testimony. Carter testified that George did not know
about the Sindelars’ prescription scheme and that George, who
did not have a job, had money problems and thus could not have
been buying $8,000 – $10,000 worth of pills a week as Sindelar
claimed. The jury was not persuaded by Carter’s testimony and
found George guilty of conspiracy to distribute oxycodone and
distribution of oxycodone.
At the sentencing hearing, the district court heard
testimony from Agent Andrew Lenhart, who testified about the
drug quantities involved in the conspiracy, and from Carter, who
again disputed her mother’s involvement in the Sindelar
conspiracy and testified about the quantity of narcotics
personally consumed by George in order to manage her pain. The
district court found Agent Lenhart’s testimony to be credible
and accepted the drug-quantity calculations as set forth in the
4
PSR. The district court determined that George’s base offense
level was 34 and that a two-level obstruction-of-justice
enhancement should be applied, resulting in a total offense
level of 36. That offense level, when combined with George’s
category I criminal history, yielded an advisory sentencing
range of 188-235 months. The district court varied downward and
imposed concurrent sentences of 148 months for each of the three
counts. This appeal followed.
II.
We turn first to George’s claim that she is entitled to a
new trial because the government failed to fulfill its
disclosure obligations under Brady v. Maryland, 373 U.S. 83(1963). Brady and its progeny “require[] a court to vacate a
conviction and order a new trial if it finds that the
prosecution suppressed materially exculpatory evidence.” United
States v. King, 628 F.3d 693, 701 (4th Cir. 2011). Accordingly,
a defendant seeking a new trial under Brady must “(1) identify
the existence of evidence favorable to the accused; (2) show
that the government suppressed the evidence; and (3) demonstrate
that the suppression was material.” Id.A week after trial, the government informed George that,
notwithstanding the government’s “open file” discovery policy,
five documents inadvertently had been placed in a separate file
and thus had not been reviewed by George’s trial attorney. Only
5
three of those documents remain relevant on appeal -- notes from
separate investigative interviews of Lisa and Richard Sindelar
and a document prepared by an FBI agent during the investigation
that summarized the evidence and status of the investigation.
The notes of the Sindelar interviews had been reviewed by
George’s first attorney, who was relieved before trial, but not
by the attorney who represented her at trial. The investigation
summary had not been disclosed to either attorney. After
learning about the documents, George filed a motion seeking a
new trial, arguing that the government breached its disclosure
obligations and that a new trial was therefore required under
Brady. The district court denied the motion, concluding that
the investigation summary was neither favorable to George nor
material, and that the Sindelar interview notes, while favorable
to George, had not been suppressed and were not material.
On appeal, George contends that the documents were
favorable to her and material, and that they were suppressed
because the government failed to include them in the discovery
file. George therefore argues that the district court erred by
denying her motion for a new trial.
A. Sindelar Interview Notes
As noted by the district court in its order denying
George’s motion for a new trial, George’s first attorney
personally reviewed (but did not retain a copy of) the notes of
6
the Sindelar interviews. In light of that fact, the district
court concluded that the interview notes were not suppressed by
the government. We agree.
For Brady purposes, “[s]uppressed evidence is information
which had been known to the prosecution but unknown to the
defense.” Spicer v. Roxbury Corr. Inst., 194 F.3d 547, 557 (4th
Cir. 1999) (internal quotation marks omitted). However, there
is no Brady violation if “defense counsel could have discovered
the evidence through reasonable diligence,” United States v.
Kelly, 35 F.3d 929, 937 (4th Cir. 1994), or if “the defense
already possesses the evidence,” United States v. Higgs, 663
F.3d 726, 735 (4th Cir. 2011). This court has already concluded
that there is no suppression within the meaning of Brady if the
evidence was disclosed to one of the defendant’s original
attorneys but not to the attorney who ultimately represented the
defendant at trial. See King, 628 F.3d at 702. Although there
was no open-file discovery policy at issue in King, we do not
believe that factual difference is significant.
If the government elects to comply with its Brady
obligations by instituting an open-file policy, “defense counsel
may reasonably rely on that file to contain all materials the
State is constitutionally obligated to disclose under Brady.”
Strickler v. Greene, 527 U.S. 263, 283 n.23 (1999). The
defendant’s right to rely on the completeness of the discovery
7
file might, under certain circumstances, defeat an argument by
the government that there was no Brady violation because the
evidence could have been discovered by the defense through a
reasonably diligent investigation, see, e.g., Gantt v. Roe, 389
F.3d 908, 912-13 (9th Cir. 2004), and it might likewise help to
establish in collateral proceedings the “cause” necessary for
consideration of a procedurally defaulted Brady claim, see
Strickler, 527 U.S. at 289. But when evidence omitted from the
discovery file was nonetheless disclosed to the defense in some
other manner, we fail to see why the defendant’s right to assume
the completeness of the file or the government’s imperfect
execution of its open-file policy should somehow invalidate that
prior disclosure. As noted above, we define “suppressed
evidence” as evidence “known to the prosecution but unknown to
the defense.” Spicer, 194 F.3d at 557. Evidence that has been
disclosed to the defense is not “unknown to the defense” simply
because it was not included in the prosecution’s discovery file.
In this case, the Sindelar interview notes were disclosed
to one of George’s attorneys, and that disclosure was sufficient
to satisfy the government’s Brady obligations. See King, 628
F.3d at 702. While it may be that George’s first attorney
failed to inform trial counsel of the existence of the notes, or
failed to convey to trial counsel all of the relevant details
from the interview notes, that failure is not attributable to
8
the government and does not affect the validity of the
disclosure. See id. (“We recognize that some information may
have failed to reach King’s trial counsel, given that King
changed attorneys three times and that his escape from custody
forced the court to reschedule the trial. But the Government
need only disclose exculpatory evidence, not ensure that the
defense further develop and utilize that evidence.”); cf.
Morales v. Ault, 476 F.3d 545, 555 (8th Cir. 2007) (finding
reasonable a state court’s determination that evidence had not
been suppressed for Brady purposes when it was disclosed to
defendant’s original attorney). Accordingly, we agree with the
district court that the Sindelar interview notes were not
suppressed within the meaning of Brady.
B. Investigation Summary
The investigation summary appears to be a mid-investigation
review prepared, apparently for personal use, by Andrew Lenhart,
an FBI agent who investigated the case and testified at trial
and at sentencing. The summary was written at some point before
George was arrested in August 2009, probably in late 2008, given
that the latest date mentioned is October 31, 2008. The
document gives a synopsis of the Sindelars’ prescription-forging
activities and lists the evidence against the Sindelars and
Cindy Carter, among others. George is listed as a subject of
the investigation, but her name otherwise appears only in
9
reference to statements George made to law enforcement
officials, which were included in the list of evidence against
other subjects of the investigation. The investigation summary
mentions no evidence against George herself.
There is no dispute that the investigation summary was
“suppressed” within the meaning of Brady. As to whether the
summary is favorable, George argues that the summary is
exculpatory and has impeachment value because it shows no
evidence against her, which suggests that the agent “did not
truly consider her a co-conspirator when [the summary] was
prepared, despite a presumably thorough investigation.” Brief
of Appellant at 17. Even if we were to accept that argument, we
agree with the district court that the summary was not material.
Undisclosed evidence is material when its cumulative effect
is such that “there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the
proceeding would have been different.” Kyles v. Whitley, 514
U.S. 419, 433-34 (1995) (internal quotation marks omitted). “A
reasonable probability does not mean that the defendant would
more likely than not have received a different verdict with the
evidence, only that the likelihood of a different result is
great enough to undermine confidence in the outcome of the
trial.” Smith v. Cain, 2012 WL 43512, *2 (U.S. Jan. 10, 2012)
(No. 10-8145) (internal quotation marks and alteration omitted).
10
In our view, the likelihood that disclosure of the investigation
summary would have resulted in a different outcome is so small
that it does not undermine our confidence in the verdict.
The summary is simply a snapshot of the investigation at a
single point in time; the government’s failure at that
particular moment to have nailed down evidence against George
provides no basis for rejecting the evidence later gathered.
Moreover, the lack of evidence at the time the summary was
prepared was likely a reflection of the evolving stories told by
the Sindelars. When the Sindelars were arrested and first
interviewed, they gave statements implicating themselves, each
other, and other family members, but not George. The Sindelars
eventually admitted the full scope of their prescription-forging
scheme and George’s involvement with that scheme, pleaded
guilty, and agreed to cooperate with the government. Counsel
for George knew that the Sindelars’ stories to law enforcement
had evolved over time, and on cross-examination counsel
questioned Lisa Sindelar about her failure to initially
implicate George and raised the possibility that Sindelar was
shading her testimony to earn a favorable sentencing
recommendation from the government. Had it been disclosed, the
summary perhaps could have provided counsel with another path to
make the same point about the evolution in the Sindelars’ story,
but the summary provided no new basis for impeaching Sindelar or
11
otherwise challenging the government’s case. We therefore
conclude that the investigation summary was not “material” for
Brady purposes. See United States v. Cooper, 654 F.3d 1104,
1120 (10th Cir. 2011) (Undisclosed evidence that is “cumulative
of evidence of bias or partiality already presented and thus
would have provided only marginal additional support for the
defense” is not material for Brady purposes (internal quotation
marks and alteration omitted)); Tankleff v. Senkowski, 135 F.3d
235, 251 (2d Cir. 1998) (“When a witness’s credibility has
already been substantially called into question in the same
respects by other evidence, additional impeachment evidence will
generally be immaterial and will not provide the basis for a
Brady claim.”).
Because the Sindelar interview notes were not suppressed
and the investigation summary was not material, the district
court committed no error in denying George’s motion for a new
trial. 1
1
We need not consider George’s argument that the
district court improperly considered the materiality of the
documents in isolation, rather than considering the cumulative
materiality of all the documents. See, e.g., United States v.
Ellis, 121 F.3d 908, 916 (4th Cir. 1997). Because the Sindelar
interview notes were not suppressed, the question of materiality
arises only as to the investigation summary.
12
III.
We turn now to George’s challenges to the sentence imposed
by the district court.
A.
George first contends that the district court’s explanation
of its drug-quantity determination was insufficient because the
court did not mention the testimony of Cindy Carter, much less
explain why it found her testimony less credible than that of
the Agent Lenhart. We disagree.
District courts are required to make findings as necessary
to resolve disputed factual issues that are relevant to
sentencing. See Fed. R. Crim. P. 32(i)(3); U.S.S.G. § 6A1.3.
Although the court need not set out its findings in great
detail, the findings must be sufficient to show how the court
ruled on the disputed matters and to permit “effective appellate
review of the sentence imposed.” United States v. Bolden, 325
F.3d 471, 497 (4th Cir. 2003).
When announcing its drug-quantity finding, the district
court stated that it found the trial testimony of the
government’s witnesses to be credible as to the nature of the
conspiracy and George’s involvement in it, and the court
likewise stated that it found Agent Lenhart’s testimony at the
sentencing hearing to be credible. Because Carter’s testimony
about her mother’s involvement in the prescription-forging
13
conspiracy was diametrically opposed to that of the government’s
witnesses, the court’s statement that it found Agent Lenhart and
the trial witnesses to be credible was an implicit but
nonetheless clear rejection of Carter’s testimony. We have
never required a sentencing court to explain in any detail why
it found the testimony of one witness more credible than
another, and the court’s explanation of its drug-quantity
finding otherwise was more than sufficient to permit meaningful
appellate review. See Bolden, 325 F.3d at 497 (“[T]he court
need not articulate findings as to disputed factual allegations
with minute specificity.” (internal quotation marks and
alteration omitted)); see also United States v. Boulware, 604
F.3d 832, 837 (4th Cir. 2010) (district court’s explanation of
its sentencing decision must “be sufficient to satisfy the
appellate court that the district court has considered the
parties’ arguments and has a reasoned basis for exercising its
own legal decisionmaking authority” (internal quotation marks
and alterations omitted)).
B.
George also challenges the substance of the district
court’s drug-quantity finding, arguing that the court erred by
including pills that were prescribed for legitimate medical
purposes.
14
When determining the drug quantity attributable to George,
the district court rejected George’s argument that any pills
that were properly prescribed for legitimate medical needs
should be excluded from the calculation. In rejecting this
argument, the district court relied on out-of-circuit cases
holding that drugs possessed for personal use should be excluded
from the drug-quantity calculation in cases where the defendant
was convicted of distribution or possession with intent to
distribute, but should not be excluded if the defendant is
convicted of conspiracy to distribute. See, e.g., United States
v. Asch, 207 F.3d 1238, 1243-44 (10th Cir. 2000) (“Every circuit
to address the question has held that where a member of a
conspiracy to distribute drugs handles drugs both for personal
consumption and distribution in the course of the conspiracy,
the entire quantity of drugs handled is relevant conduct for
purposes of calculating the base offense level pursuant to the
Guidelines.”); United States v. Kipp, 10 F.3d 1463, 1465-66 (9th
Cir. 1993) (“Drugs possessed for mere personal use are not
relevant to the crime of possession with intent to distribute
because they are not part of the same course of conduct or
common scheme as drugs intended for distribution.” (internal
quotation marks omitted)). Because George was convicted of
conspiracy, the district court concluded that any pills
15
prescribed and intended for her personal use were properly
included in the drug-quantity calculation.
On appeal, George contends that the district court’s
reliance on the out-of-circuit cases was misplaced because those
cases involve “street” drugs, such as crack and marijuana, that
are illegal to possess in all circumstances. Under the
Sentencing Guidelines, a defendant convicted of conspiring to
distribute controlled substances “is accountable for all
quantities of contraband with which he was directly involved
and, in the case of a jointly undertaken criminal activity, all
reasonably foreseeable quantities of contraband that were within
the scope of the criminal activity that he jointly undertook.”
U.S.S.G. § 1B1.3 cmt. n.2 (emphasis added). George argues that
prescription medications, unlike street drugs, are not
contraband. And because the district court accepted the
evidence showing that George began taking pain medication to
treat genuine physical problems, George contends that the court
erred by refusing to exclude from the drug-quantity calculations
the pills that were prescribed to her for legitimate medical
purposes.
At the time of George’s sentencing, there were no published
opinions from this court addressing the personal-use question in
either the street-drug or prescription-drug context. We have,
however, recently concluded that the distinction between
16
conspiracy convictions and distribution convictions that has
been drawn in cases involving street drugs is not necessarily
applicable in cases involving prescription drugs. See United
States v. Bell, ____ F.3d ____, 2011 WL 6396482 (4th Cir. Dec.
21, 2011). Recognizing that “relevant conduct under the
Guidelines must be criminal conduct,” United States v. Dove, 247
F.3d 152, 155 (4th Cir. 2001), the court in Bell concluded that,
because prescription drugs can be legally possessed, “only those
quantities the defendant conspired or intended to possess
unlawfully, i.e., with intent to distribute” can be considered
relevant conduct. Bell, 2011 WL 6396482 at *10. The court
therefore held that if the government seeks to attribute to the
conspiracy the total quantity of drugs prescribed to a member of
the conspiracy, the government
must also provide evidence, and the district court
must make a finding, of something more -- for example
(1) that the conspiracy actually distributed a
particular amount; (2) that the person who was
prescribed the drug lawfully kept and consumed only a
portion (or none) of the prescribed amount; (3) that
the pills were obtained fraudulently and thus cannot
be considered to have been lawfully obtained and
possessed; or (4) that each and every pill obtained,
even if pursuant to a valid prescription, was obtained
with the intent that it would or could be distributed.
Id. at *11 (emphasis added; citation and internal quotation
marks omitted). The court believed that requiring anything less
would “create[] an unacceptably high risk that a defendant will
17
be punished for drug quantities a portion of which was lawfully
obtained, possessed and consumed.” Id. at *10.
Although the district court did not have the benefit of
Bell when sentencing George, it is now apparent that the
district court erred by relying on the street-drug line of cases
and attributing to George the full quantity of drugs without
evidence of or a finding of the “something more” required by
Bell. Id. at *11. As we explain below, however, the district
court’s error was harmless, and resentencing is therefore not
required.
Bell contemplates excluding from the drug-quantity
calculation those drugs that were “lawfully obtained, possessed
and consumed” under a “valid prescription.” Id. at *10, *11.
In this case, it is apparent that none of the drugs obtained
through the Sindelars’ prescription-forgery scheme were lawfully
obtained under a valid prescription. See 21 U.S.C. § 843(a)(3)
(making it unlawful “to acquire or obtain possession of a
controlled substance by misrepresentation, fraud, forgery,
deception, or subterfuge”); id. § 844(a) (making it unlawful “to
possess a controlled substance unless such substance was
obtained directly, or pursuant to a valid prescription or order,
from a practitioner, while acting in the course of his
professional practice”). A strong argument can likewise be made
that none of the drugs George obtained through her doctor-
18
shopping scheme were lawfully obtained. See, e.g., United
States v. Young, 992 F.2d 207, 210 (8th Cir. 1993) (concluding
that narcotics prescriptions that defendant obtained by
“misleading several different doctors” were not valid
prescriptions). Nonetheless, we will assume for purposes of
this opinion that all of the drugs obtained through George’s
doctor-shopping scheme should have been excluded from the drug-
quantity calculation.
The district court concluded that George should be held
responsible for a total of 43,578 pills equivalent to 9,976.4
kilograms of marijuana, which resulted in a base offense level
of 34. See U.S.S.G. § 2D1.1(c)(3) (assigning a base offense
level of 34 to cases involving the equivalent of at least 3,000
but less than 10,000 kilos of marijuana). The prescription-
forging portion of the conspiracy alone involved the equivalent
of 4,103 kilograms of marijuana, such that George’s base offense
level would remain 34 after the exclusion of all doctor-shopping
drugs. Because the exclusion of the doctor-shopping drugs from
the drug-quantity calculation results in no change to George’s
offense level, the district court’s error was harmless. See
United States v. Cabrera-Beltran, 660 F.3d 742, 756 (4th Cir.
2011).
19
C.
Finally, George argues that the district court’s mistaken
view of her criminal record requires a remand for resentencing.
We disagree.
One of the reasons the district court gave for its variance
sentence was the substantial lapse of time since George’s last
conviction. The court stated that George’s last conviction
occurred in 1998, but the conviction actually occurred in 1988.
George argues that if the district court had realized that it
had been twenty-two years, not twelve years, since her last
conviction, the court might have imposed an even lower sentence,
and George therefore contends that the court’s error about the
date of her prior conviction requires resentencing. Because
George did not object or otherwise bring the correct date to the
court’s attention, we review this claim for plain error only.
Under plain-error review, George bears the burden of
establishing that the district court erred, that the error was
plain, and that the error affected her substantial rights. See,
e.g., United States v. Brack, 651 F.3d 388, 392 (4th Cir. 2011).
A sentencing error affects a defendant’s substantial rights if
there is a non-speculative basis in the record for concluding
that the court would have imposed a lower sentence but for the
error. See United States v. Knight, 606 F.3d 171, 178 (4th Cir.
2010); United States v. Hernandez, 603 F.3d 267, 273 (4th Cir.
20
2010). In this case, there is nothing in the record
affirmatively indicating that the court would have imposed a
lower sentence if it had realized that more time had elapsed
since George’s last conviction. Accordingly, even if we assume
that plain error occurred, George is not entitled to relief
because she cannot show that the error affected her substantial
rights. 2
IV.
For the foregoing reasons, we conclude that the district
court properly denied George’s motion for a new trial, and we
therefore affirm George’s convictions. And because we conclude
that the district court committed no reversible error in
sentencing, we likewise affirm George’s sentence.
AFFIRMED
2
George contends that the sentencing errors she has
identified require the district court to reconsider its
forfeiture order. Because we have rejected George’s sentencing
challenges, we likewise reject her forfeiture challenge.
21