United States v. Porfirio Orta-Rosario , 469 F. App'x 140 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4684
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
PORFIRIO ORTA-ROSARIO,
Defendant - Appellant.
No. 10-4750
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
KATHLEEN GIACOBBE,
Defendant - Appellant.
Appeals from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., Chief District Judge. (3:07-cr-00154-RJC-DSC-3; 3:07-cr-
00154-RJC-DSC-2)
Submitted: December 29, 2011 Decided: March 13, 2012
Before NIEMEYER, AGEE, and WYNN, Circuit Judges.
Affirmed in part; vacated and remanded in part by unpublished
per curiam opinion.
Angela Parrot, Acting Executive Director, FEDERAL DEFENDERS OF
WESTERN NORTH CAROLINA, INC., Ross H. Richardson, Peter Adolf,
Assistant Federal Defenders; Scott H. Gsell, Charlotte, North
Carolina, for Appellants. Anne Magee Tompkins, United States
Attorney, Melissa L. Rikard, Assistant United States Attorney,
Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Defendants Kathleen Giacobbe (Giacobbe) and Porfirio
Orta-Rosario (Orta) were charged with conspiracy to distribute
Schedule III and IV controlled substances without a legitimate
medical purpose and outside the usual course of professional
practice, numerous substantive counts of distribution, and
aiding and abetting the same. Appellants were involved in an
online prescription medication service. Appellants raise
several challenges to their convictions, and Orta challenged his
sentence.
Orta, a medical doctor, and Giacobbe first assert that
the Controlled Substances Act (CSA) is impermissibly vague as
applied to them in violation of the Fifth Amendment right to due
process. The Appellants contend that there is no statutory
definition of “legitimate medical purpose” or “usual
professional practice.” Appellants argue that the factors the
Government relied on to demonstrate that their conduct was
without a legitimate medical purpose and outside of usual
professional practice were not sufficient to establish that an
ordinary person would understand that their conduct was
prohibited. They further contend that the Ryan Haight Act of
2008 (passed after their criminal conduct), 21 U.S.C.A. § 829(e)
(West Supp. 2011) (the Act), includes a requirement for patients
to see a medical professional in person before receiving a
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prescription, and the absence of such a requirement prior to
passage of the Act rendered the CSA impermissibly vague, and the
rule of lenity should apply to void their convictions.
In order to prosecute the Defendants for distribution
of controlled substances that Dr. Orta was authorized to
prescribe, the Government must prove that the controlled
substance was not prescribed only “for a legitimate medical
purpose by an individual practitioner acting in the usual course
of his professional practice.” 21 CFR § 1306.04(a). There are
no statutory definitions of “legitimate medical purpose” or
“usual course of professional practice.” The CSA does not
specifically define the range of acceptable medical practices.
Gonzales v. Oregon, 546 U.S. 243, 260 (2006).
Nonetheless, in Gonzales, the Supreme Court stated
that the CSA “bars doctors from using their prescription-writing
powers as a means to engage in illicit drug dealing and
trafficking as conventionally understood.” Id. at 270.
Further, we have held that “there are no specific guidelines
concerning what is required to support a conclusion that an
accused acted outside the usual course of professional practice.
Rather, courts must engage in a case-by-case analysis of
evidence to determine whether a reasonable inference of guilt
may be drawn from specific facts.” United States v. Singh, 54
F.3d 1182, 1187 (4th Cir. 1995). Several other Circuits have
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explicitly ruled that the CSA and the regulations are not void
for vagueness. See United States v. Birbragher, 603 F.3d 530(8th Cir. 2010) (rejecting vagueness challenge in online
pharmacy case with very similar facts); United States v. Lovern,
590 F.3d 1095, 1103 (10th Cir. 2009) (rejecting vagueness
challenge by pharmacist in online pharmacy case with similar
fact situation); United States v. DeBoer, 966 F.2d 1066, 1068-69
(6th Cir. 1992) (language of § 841(a) is not void for vagueness
because it clearly defines a pharmacist’s responsibilities);
United States v. Rosenberg, 515 F.2d 190, 197-98 (9th Cir. 1974)
(finding phrase “in the course of professional practice” has
been in statutes since 1914 and courts have shown “ease and
consistency” in interpreting phrase); United States v. Collier,
478 F.2d 268, 272 (5th Cir. 1973 (“in the usual course of
professional practice” language not unconstitutionally vague).
In light of the statute, regulation, and case law, we conclude
that the Defendants had adequate notice that the
www.youronlinedoctor.com (YOD) prescription service that they
were involved in was unlawful. In addition, the jury found that
the Defendants had knowledge and intent.
In 2008, Congress passed the Ryan Haight Online
Pharmacy Consumer Protection Act of 2008, which went into effect
on April 15, 2009. The Act provides “[n]o controlled substance
that is a prescription drug . . . may be delivered, distributed,
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or dispensed by means of the Internet without a valid
prescription.” 21 U.S.C.A. § 829(e). A “valid prescription” is
defined as a prescription issued for a legitimate medical
purpose in the usual course of professional practice by a
practitioner who has conducted at least one in-person medical
evaluation. Id.The Appellants contend that because Congress amended
the CSA after they operated YOD, the pre-Ryan Haight CSA was
unconstitutionally vague as to whether it prohibited the conduct
in this case. The Appellants also suggest that the rule of
lenity requires that their convictions be reversed. Appellants
do not have any case law to support their position. This same
challenge has been rejected by the Second Circuit in Birbragher
and in various district courts. See Birbragher, 603 F.3d at 490(defendant’s “reliance on the Online Pharmacy Act . . . was
misplaced”); United States v. Quinones, 536 F. Supp.2d 267, 273
(E.D.N.Y. 2008) (although the Act requires a face to face
meeting between patient and doctor, “it does not follow that the
same conduct is not within the embrace of the current
prohibition of distribution outside the usual scope of
professional practice”); United States v. Lovin, 2009 WL3634194,
*5 (S.D.Cal. Oct. 30, 2009) (“The fact that the Senate has
passed a bill which would amend the CSA to explicitly prohibit
the conduct at issue in this case does not invalidate the
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government’s prosecution of defendants under the existing
provisions of the CSA”).
As the Government argues, not only were there no
physical examinations in this case, there were several other
violations, including permitting non-medical personnel to write
prescriptions with pre-signed blank prescription forms,
questionable dosage amounts, and liberal prescription refills
that were not based on legitimate medical purposes or based on
professional practices. Because there is no ambiguity in the
CSA or its application in this case, the rule of lenity does not
apply. The Appellants’ constitutional challenge to the CSA
based on vagueness fails.
Next, the Appellants challenge the district court’s
denial of their motion for a mistrial. Before trial, the
Appellants moved to exclude evidence of patient deaths allegedly
related to receiving medication from the YOD enterprise as
unfairly prejudicial and without sufficient evidence of
causation. The court granted the motion and enjoined the
Government from making any reference to the deaths. During the
trial, the Government called Dr. Mark Romanoff to testify as an
expert in the field of medical practice and pain management.
The AUSA asked Dr. Romanoff if he had “an opinion as to whether
the model used by Your Online Doctor constituted the legitimate
practice of medicine?” Dr. Romanoff responded, “[i]t was not
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the practice of medicine at all. . . . In fact, as we have seen,
a lot of patients got into big trouble and some died because of
this.” Defense counsel objected immediately, and the court
sustained the objection and informed the jury to “disregard
completely the last statement of the witness.”
At the conclusion of Dr. Romanoff’s testimony, defense
counsel moved for a mistrial on the ground of deliberate
misconduct by the Government. The court denied the motion for a
mistrial, finding that the prohibited testimony was inadvertent
and the court had immediately instructed the jury to disregard
it. The court gave an additional limiting instruction when the
jury returned to the courtroom. The court recited the
Government’s question and Dr. Romanoff’s answer referencing the
deaths and then instructed the jury that “there’s absolutely no
evidence of any kind that any deaths were caused by the conduct
of any people in this case. That being so, you are to
completely disregard any comment about any such death.”
We review the denial of a motion for mistrial for an
abuse of discretion. United States v. Wallace, 515 F.3d 327,
330 (4th Cir. 2008); see also United States v. Dorlouis, 107
F.3d 248, 257 (4th Cir. 1997) (“[D]enial of a defendant’s motion
for a mistrial is within the sound discretion of the district
court and will be disturbed only under the most extraordinary of
circumstances.”). In order to show such an abuse of discretion,
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a defendant must show prejudice; no prejudice exists if the jury
could make individual guilt determinations by following the
court’s cautionary instructions. Wallace, 515 F.3d at 330. To
determine whether prejudice is present, the court “must evaluate
whether there is a reasonable probability that the jury’s
verdict was influenced by the material that improperly came
before it.” United States v. Seeright, 978 F.2d 842, 849 (4th
Cir. 1992) (internal quotation marks omitted).
We conclude that the district court did not abuse its
discretion in denying the Appellants’ motion for a mistrial.
The court issued a curative instruction immediately after the
objection and issued a second curative instruction that went so
far as to say that there was “absolutely no evidence of any kind
that any deaths were caused by the conduct of any people in this
case.” Further, one of the defendants, Christopher Otiko, was
found not guilty on all counts. Therefore, the jury was able to
make individualized determinations of guilt. See United
States v. Dorsey, 45 F.3d 809, 817 (4th Cir. 1995). As the
improper testimony did not influence the verdict, the district
court did not abuse its discretion in denying the Appellants’
motion for a mistrial.
The Appellants proffered a jury instruction on good
faith as a defense to the charges. The Appellants’ brief states
that Orta’s counsel requested that the following instruction be
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given, based on this court’s decision in United States v.
McIver, 470 F.3d 550, 556 (4th Cir. 2006): “Good faith in this
context means good intentions, and the honest exercise of
professional judgment as to the patient’s needs. It means that
the defendant acted in accordance with what he reasonably
believed to be proper medical practice.”
The court determined that the best statement of the
law was from United States v. Hurwitz, 459 F.3d 463, 476 (4th
Cir. 2006). Consistent with Hurwitz, the district court
instructed the jury that the Defendants could not be convicted
if it found the Defendants acted in good faith. The court
instructed, “[g]ood faith is not merely a doctor[’s] sincere
intention towards the people who come to see him, but rather it
involves his sincerity in attempting to conduct himself in
accordance with a standard of practice generally recognized and
accepted in the United States.”
“A district court commits reversible error in refusing
to provide a proffered jury instruction only when the
instruction (1) was correct; (2) was not substantially covered
by the court's charge to the jury; and (3) dealt with some point
in the trial so important, that failure to give the requested
instruction seriously impaired the defendant's ability to
conduct his defense.” United States v. Passaro, 577 F.3d 207,
221 (4th Cir. 2009) (internal quotation marks omitted). We
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“review the district court’s decision to give or refuse to give
a jury instruction for abuse of discretion.” Id.In Hurwitz, the court found that a district court
erred when it instructed a jury that it may not consider a
physician’s good faith when deciding whether to convict on a
drug trafficking charge and held that, in a § 841 prosecution
against a physician, the inquiry into the doctor’s good faith in
treating his patients is an objective one, rather than a
subjective one. Hurwitz, 459 at 476-79. Here, the district
court’s instruction was properly based on objective good faith,
and not Orta’s subjective belief that he may have been acting in
good faith. The district court’s instruction did not confuse
the standard of proof stating that it was beyond a reasonable
doubt as to whether the Defendants acted without a legitimate
medical purpose and outside the bounds of professional practice,
reiterating that the Government had to prove that beyond the
bounds of any legitimate practice was “exclusively criminal in
nature.” The court “describ[ed] the concept of medical
malpractice and the civil standard of care before categorically
stating that a criminal standard governed resolution of this
case.” McIver, 470 F.3d at 560.
Under these circumstances, we conclude that the court
did not err in refusing to give the requested instruction and
crafting its own good faith instruction. Even if Orta’s
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instruction had been a correct statement of the law, he failed
to demonstrate that it was not substantially covered by the
court’s charge to the jury. See Passaro, 577 F.3d at 221.
Moreover, while Orta argues that the failure to give the
requested instruction seriously impaired his ability to conduct
a defense, he was able to argue good faith to the jury. For
these reasons, the district court did not err in issuing its
good faith instruction.
Next, Appellants argue that the district court erred
in instructing the jury on willful blindness. The element of
knowledge in the crime of conspiracy may be satisfied by a
showing that a defendant acted with willful blindness, as
willful blindness is a form of constructive knowledge which
“allows the jury to impute the element of knowledge to the
defendant if the evidence indicates that he purposely closed his
eyes to avoid knowing what was taking place around him.” United
States v. Schnabel, 939 F.2d 197, 203 (4th Cir. 1991). Because
willful blindness serves as a proxy for knowledge, there is
nothing inconsistent in the determination that a defendant
knowingly was part of a conspiracy even where willfully blind to
the conspiracy’s existence and purpose. See McIver, 470 F.3d at
563-64 (noting that willful blindness is sufficient to establish
knowledge of a conspiracy). “[A]ll that is necessary is
evidence from which the jury could infer deliberate avoidance of
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knowledge.” United States v. Whittington, 26 F.3d 456, 463 (4th
Cir. 1994). If the evidence supports actual knowledge and
deliberate ignorance, a willful blindness instruction is proper.
United States v. Ruhe, 191 F.3d 376, 384 (4th Cir. 1999).
Orta objected in the district court to the willful
blindness instruction, arguing that the instruction should only
be given sparingly where there is specific evidence that a
defendant actively avoided learning of facts. Orta argued that
the willful blindness instruction may lead the jury to convict
on something less than knowledge and the specific intent element
of the crime would be voided. The court denied the objection.
In his reply brief, Orta argues that a recent Supreme
Court decision regarding the willful blindness instruction
requires evidence of deliberate acts to avoid knowledge. See
Global-Tech Appliances, Inc. v. SEB S.A., 131 S. Ct. 2060(2011). Orta asserts that the Global-Tech Court held that “the
defendant must take deliberate actions to avoid learning” of the
fact of an illegality or violation and that this applies to
criminal as well as civil willful blindness instructions. Id.
at 2070.
However, even in light of this recent case, Orta’s
actions were deliberate and calculated to avoid knowledge of the
illegal aspect of the enterprise. Orta actively ignored
numerous signs that the YOD prescriptions were issued and filled
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without a legitimate medical necessity and outside the usual
course of professional practice. We therefore conclude that the
court did not abuse its discretion in giving the willful
blindness instruction. Passaro, 577 F.3d at 221 (standard of
review).
Orta assigns error to the district court’s denial of
his motion for a four-level adjustment based on his minimal role
in the offenses pursuant to U.S. Sentencing Guidelines Manual
§ 3B1.2 (2006). In reviewing the district court’s calculations
under the Guidelines, we “review the district court’s legal
conclusions de novo and its factual findings for clear error.”
United States v. Manigan, 592 F.3d 621, 626 (4th Cir. 2010)
(internal quotation marks, alteration, and citation omitted).
We will “find clear error only if, on the entire evidence, [we
are] left with the definite and firm conviction that a mistake
has been committed.” Id. at 631 (internal quotation marks and
citation omitted).
Under USSG § 3B1.2(a), a district court shall decrease
the applicable offense level by four levels if the defendant was
a minimal participant in the criminal activity. The Guidelines
further provide that such a reduction is appropriate in a
situation where the defendant is “among the least culpable of
those involved in the conduct of the group.” USSG § 3B1.2 cmt.
n.4. In deciding whether the defendant played a minor or
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minimal role, the “critical inquiry is thus not just whether the
defendant has done fewer bad acts than his co-defendants, but
whether the defendant’s conduct is material or essential to
committing the offense.” United States v. Pratt, 239 F.3d 640,
646 (4th Cir. 2001) (internal quotation marks and citation
omitted). The defendant bears the burden of demonstrating that
he played a minor role in the offense by a preponderance of the
evidence. United States v. Akinkoye, 185 F.3d 192, 202 (4th
Cir. 1999).
The district court did not clearly err in refusing to
apply this reduction in offense level. The district court found
that Orta was the “without which factor” that allowed YOD to
operate and distribute controlled substances to thousands of
customers. Without Orta’s photocopied signature and DEA number,
the YOD business would not have authorized thousands of
prescriptions. Orta clearly delegated medical decision-making
to persons untrained and unlicensed in medical practice. The
district court found that Orta’s explanations were incredible
and that he was one of the more culpable conspirators. His
conduct was therefore “material or essential to committing the
offense,” and the court did not clearly err in rejecting the
role adjustment.
Finally, Orta argues that the district court erred by
requiring him to pay $1000 of his court appointed attorneys’
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fees. Under the Criminal Justice Act, “[w]henever a United
States magistrate judge or the court finds that funds are
available for payment from or on behalf of a person furnished
representation,” the court may order that such funds be paid to
the court-appointed attorney or the United States Treasury as a
reimbursement for court-appointed representation. 18 U.S.C.A.
§ 3006A(f) (West Supp. 2011). Any order requiring the
reimbursement of attorneys’ fees under 18 U.S.C.A. § 3006A(f)
must be based on a finding by the district court “that there are
specific funds, assets, or asset streams (or the fixed right to
those funds, assets or asset streams) that are (1) identified by
the court and (2) available to the defendant for the repayment
of the court-appointed attorneys’ fees.” United States v.
Moore, 666 F.3d 313, 322 (4th Cir. 2012). The district court,
not having the benefit of Moore, made no such findings in this
case. For this reason, we vacate this portion of Orta’s
sentencing order only and remand for the court to reconsider in
light of Moore.
We therefore affirm the convictions and Giacobbe’s
sentence and Orta’s sentence with the exception of the portion
of Orta’s judgment ordering repayment of attorneys’ fees. We
dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED IN PART;
VACATED AND REMANDED IN PART
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