United States v. Battle ( 2023 )

Case: 22-10336 Document: 00516780920 Page: 1 Date Filed: 06/09/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-10336
Summary Calendar FILED
____________ June 9, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Clinton Battle,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:20-CR-157-1
______________________________
Before Stewart, Duncan, and Wilson, Circuit Judges.
Per Curiam: *
A jury convicted physician Clinton Battle of one count of conspiracy
to distribute a controlled substance and one count of distribution of a
controlled substance. He subsequently pleaded guilty to conspiracy to
commit mail fraud. The charges stemmed from an alleged scheme in which
Battle, and his employees using his credentials, issued prescriptions for
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 22-10336
controlled substances after Battle performed minimal or no medical
examination. Battle charged patients for office visits and, at times, received
illicit drugs from another co-conspirator in exchange for writing
prescriptions. He now appeals, arguing that: (1) the district court erred in
admitting a statement made by a co-conspirator in furtherance of the
controlled substance conspiracy; (2) there was a material variance between
the superseding indictment, which alleged a single controlled substance
conspiracy, and the evidence presented at trial, which revealed that there
were multiple conspiracies; and (3) the district court violated his due process
and equal protection rights by imposing time limits for his trial.
As for the first claim, Battle challenges the admission of an out-of-
court statement made by his office manager’s husband, Michael Blanchard
(Michael). Battle argues that Michael was simply narrating past conduct
when he told his wife, Kendrea Blanchard (Kendrea), that he had an
agreement with Battle to exchange cocaine for prescriptions. Thus,
according to Battle, Kendrea should not have been permitted to testify about
Michael’s out-of-court statement. We review the evidentiary rulings of the
district court for an abuse of discretion. United States v. Jackson, 636 F.3d
687, 692 (5th Cir. 2011). Under Federal Rule of Evidence 801(d)(2)(E),
statements “made by the party’s coconspirator during and in furtherance of
the conspiracy” are not hearsay. In order to introduce a statement under this
exception, the Government must prove by a preponderance of the evidence
that (1) the conspiracy exists, (2) the statement was made by a co-conspirator,
(3) the statement was made within the course of the conspiracy, and (4) the
statement was made in an effort to further the conspiracy. See United States
v. Gurrola, 898 F.3d 524, 535 (5th Cir. 2018).
The record supports that Michael’s statement was intended to inform
another co-conspirator, Kendrea, about the details of an ongoing scheme,
likely in order to encourage her continued participation in the conspiracy.
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Because the Government demonstrated by a preponderance of the evidence
that the statement was made within the course and in furtherance of the
conspiracy, the district court did not abuse its discretion in ruling that the
statement was admissible under Rule 801(d)(2)(E). See Gurrola, 898 F.3d at
535-36.
In his material variance claim, Battle contends that the Government
presented evidence of two separate conspiracies: a “street dealing”
conspiracy and an “office visit” conspiracy. “The question whether the
evidence establishes the existence of one conspiracy (as alleged in the
indictment) or multiple conspiracies is a fact question within the jury’s
province.” United States v. Mitchell, 484 F.3d 762, 769 (5th Cir. 2007). A
jury’s finding that there was a single conspiracy should be affirmed “unless
the evidence and all reasonable inferences, examined in the light most
favorable to the [G]overnment, would preclude reasonable jurors from
finding a single conspiracy beyond a reasonable doubt.” Id. (internal
quotation marks and citations omitted). This court primarily considers three
factors: “(1) the existence of a common goal; (2) the nature of the scheme;
and (3) the overlapping of the participants in the various dealings.” United
States v. Rojas, 812 F.3d 382, 406 (5th Cir. 2016) (internal quotation marks
and citation omitted).
Here, the allegedly distinct conspiracies shared a common goal: to
profit from the illegal prescribing of controlled substances, using Battle’s
clinics and credentials, without a legitimate medical purpose. See United
States v. Morris, 46 F.3d 410, 415 (5th Cir. 1995). Moreover, they relied on
the same tactics and were run through Battle’s clinics, where Battle operated
as a “key man.” Id. at 416-17. Although some participants in the conspiracy
did not work together and were not involved in every deal, “there is no
requirement that every member must participate in every transaction to find
a single conspiracy.” Id. at 416 (internal quotation marks, brackets, and
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citation omitted). And “[t]he members of a conspiracy which functions
through a division of labor need not have an awareness of the existence of the
other members, or be privy to the details of each aspect of the conspiracy,”
United States v. Richerson, 833 F.2d 1147, 1154 (5th Cir. 1987). Accordingly,
viewing the evidence and all reasonable inferences in favor of the
Government, Battle’s material variance claim fails. See Rojas, 812 F.3d at
406-07; Morris, 46 F.3d at 415-17.
Regarding Battle’s challenge to the time limits, our review is for plain
error as he did not object to the limits or request additional time in the district
court. See United States v. Gray, 105 F.3d 956, 962 (5th Cir. 1997). To
demonstrate plain error, Battle must show a forfeited error that is clear or
obvious and that affects his substantial rights. See Puckett v. United States,
556 U.S. 129, 135 (2009). If he makes this showing, we have discretion to
remedy the error only if it “seriously affects the fairness, integrity or public
reputation of judicial proceedings.” Id. (internal quotation marks, brackets,
and citations omitted). The district court “may impose reasonable time
limits on the presentation of evidence and the examination of witnesses.”
United States v. Colomb, 419 F.3d 292, 299 (5th Cir. 2005). Thus, we have
allowed “limits that do not unreasonably curtail a defendant’s right to
examine [G]overnment witnesses and present an effective defense.” United
States v. Morrison, 833 F.3d 491, 505 (5th Cir. 2016).
Battle failed to make an offer of proof during trial, and on appeal, he
does not point to any information he was prevented from presenting to the
jury. See Morrison, 833 F.3d at 505-06; Gray, 105 F.3d at 965. His arguments
that the time limits impaired his defense are conclusory, and his contention
that the jury was confused because of the time limits is not supported by the
record. Moreover, even if the district court improperly cited a district-wide
civil rule as the source of its authority to impose time limits in this criminal
case, any such error did not affect Battle’s substantial rights. See Puckett, 556
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U.S. at 135; see also Fed. R. Evid. 611(a). Finally, Battle fails to
demonstrate that the allegedly unfair time limits rendered his subsequent
plea of guilty to conspiracy to commit mail fraud unknowing or involuntary.
See United States v. Urias-Marrufo, 744 F.3d 361, 366 (5th Cir. 2014).
AFFIRMED.
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