United States v. MacKay

FILED
United States Court of Appeals
Tenth Circuit
April 30, 2013
PUBLISH
Elisabeth A. Shumaker
UNITED STATES COURT OF APPEALS Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 12-4001
DEWEY C. MACKAY, III,
Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
(D.C. No. 1:10-CR-94-DB-1)
Peter Stirba (Nathan A. Crane and Kathleen Abke with him on the brief), Stirba &
Associates, Salt Lake City, Utah, for Appellant.
Elizabethanne C. Stevens, Assistant United States Attorney (David Barlow, United
States Attorney, with her on the brief), Office of the United States Attorney, Salt
Lake City, Utah, for Appellee.
Before KELLY and BALDOCK, Circuit Judges, and JOHNSON, District
Judge. *
BALDOCK, Circuit Judge.
The bedrock principle that “no person shall be made to suffer the onus of a
*
The Honorable William P. Johnson, United States District Court Judge,
District of New Mexico, sitting by designation.
criminal conviction except upon . . . evidence necessary to convince a trier of fact
beyond a reasonable doubt of the existence of every element of the offense” is well-
settled in our criminal jurisprudence. Jackson v. Virginia, 443 U.S. 307, 316 (1979).
We frequently hear appeals from defendants challenging the sufficiency of the
evidence, but all too often, defendants misunderstand the standard under which we
review their appeal. In application, we review the evidence, both direct and
circumstantial, in a light most favorable to the Government. United States v.
Kieffer, 681 F.3d 1143, 1152 (10th Cir. 2012). The evidence need not “convince a
trier of fact beyond all doubt,” rather, the evidence “need only reasonably support
the jury’s finding that the defendant is guilty of the offense beyond a reasonable
doubt.” Id. Importantly, we have repeatedly emphasized that the evidence, “together
with the reasonable inferences to be drawn therefrom, must be substantial, but it need
not conclusively exclude every other reasonable hypothesis and it need not negate
all possibilities except guilt.” Id. (internal quotation marks omitted). In the present
appeal, Defendant Dewey C. MacKay, III, whom a jury convicted of unlawfully
prescribing controlled substances, challenges the sufficiency of the evidence
underlying several counts of his conviction. He also challenges certain jury
instructions, admission of an exhibit and expert testimony, and the legality of his
sentence. Our jurisdiction arises under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. For
reasons to follow, we affirm the district court’s judgment of conviction, but remand
for resentencing.
2
I.
Defendant Dewey C. MacKay practiced medicine in Brigham City Utah. Prior
to 2001, Defendant focused his practice on orthopedics. Trial Tr., 73, July 20, 2011.
But, because of his own health problems and a desire not to see patients travel to
seek treatment, Defendant shifted his practice to pain management. Id. at 74; Trial
Tr., 61, August 15, 2011. Defendant maintained a busy practice. From 2001 through
2007, Defendant worked on Mondays and Wednesdays. Trial Tr., 75, July 20, 2011.
Between the years 2005 and 2007, Defendant saw, on average, 80 to 100 patients in
one day. Id. at 76. These appointments lasted between two and five minutes. Id. at
77, 141, 169. In March 2007, Defendant moved his pain clinic out of the main
orthopedic practice in which he had been practicing. In the new office, Defendant
worked four days per week for 3.5 to 4 hours per day. Trial Tr., 71, August 9, 2011.
As part of this practice, Defendant prescribed his patients opioids, such as oxycodone
and hydrocodone, both of which are regulated by the Controlled Substances Act. 1
A grand jury indicted Defendant on 129 counts, alleging various violations of
the Controlled Substances Act. Prior to trial, the Government dismissed 45 counts.
1
Oxycodone is a synthetic derivative of morphine and is a common ingredient
in a number of pain medications such as Percocet. Trial Tr., 42, July 27, 2011.
OxyContin is the time release form of oxycodone, meaning that a person takes one
pill and the medication in that pill is released over a 12 hour period. Id.
Hydrocodone is a synthetic derivative of morphine and is the active ingredient in
medications such as Lortab and Norco. Id. Oxycodone mixtures are Schedule II
substances and hydrocodone mixtures are Schedule III substances.
3
Thereafter, the district court held a five-week jury trial on the remaining 84 counts.
At the close of the Government’s case in chief, Defendant moved for a judgment of
acquittal on all counts. The district court denied the motion. Defendant renewed his
motion after all the evidence had been presented. The district court took the motion
as to counts 1 and 2 under advisement, but otherwise denied the motion. Counts 1
and 2 related to a patient who died, allegedly as a result of the prescriptions listed
in the counts. The jury found Defendant guilty on 40 counts, including counts 1 and
2. Three counts were for using a telephone in furtherance of drug distribution, while
37 counts were for unlawfully distributing Schedule II and III controlled substances.
The district court subsequently issued a written opinion denying Defendant’s motion
for judgment of acquittal as to counts 1 and 2.
Defendant then filed this appeal, raising six issues.2 First, Defendant
challenges the sufficiency of the evidence supporting the non-death counts. Second,
Defendant asserts the district court erred in denying his motion for judgment of
acquittal on counts 1 and 2. This argument raises five sub-issues: (1) whether the
Government proved the medications were not for a legitimate medical purpose;
(2) whether a reasonable juror could find the patient’s death resulted from the use
of the controlled substances in counts 1 and 2; (3) whether the district court erred in
considering an autopsy report as evidence separate and apart from a different medical
2
For clarity, we discuss these issues in a different order than Plaintiff’s
opening brief.
4
examiner’s testimony; (4) whether reasonable doubt existed that the patient’s death
resulted from the medications Defendant prescribed; and (5) whether the patient’s
death was a “reasonably foreseeable” consequence of Defendant’s prescriptions and
whether the district court properly instructed the jury on reasonable foreseeability.
Third, Defendant believes the district court erred in permitting Dr. Stacy Hail, a
toxicologist, to offer expert opinion testimony. Fourth, Defendant posits the district
court erred in admitting Government Exhibit 133, a compilation of charts showing
the annual rankings in Utah of the top ten issuers of hydrocodone and oxycodone
prescriptions from 2005 through 2009. Fifth, Defendant argues the district court
erred in sentencing Defendant to 20 years imprisonment on count 1. Sixth, and
finally, Defendant contends the district court committed plain error when it imposed
a general sentence of 240 months as to all the counts. We address each argument in
turn.
II.
The Controlled Substances Act prohibits a person from dispensing or
distributing a controlled substance.3 21 U.S.C. § 841(a)(1). But a physician is
3
Title 21 U.S.C. § 841(a)(1) provides: “Except as authorized by this
subchapter, it shall be unlawful for any person knowingly or intentionally—(1) to
manufacture, distribute, or dispense, or possess with intent to manufacture,
distribute, or dispense, a controlled substance.” The penalty section provides that
“any person who violates subsection (a) [of § 841] shall be sentenced as follows: . . .
In the case of a controlled substance in schedule I or II, . . . such person shall be
sentenced to a term of imprisonment of not more than 20 years . . . .” 21 U.S.C.
(continued...)
5
exempt from this prohibition as long as he is registered and acting as authorized. 21
U.S.C. §§ 802(21), 822(b). For a controlled substance prescription to be effective,
the prescription “must be issued for a legitimate medical purpose by an individual
practitioner acting in the usual course of his professional practice.” 21 C.F.R.
§ 1306.04(a). Defendant challenges his convictions relating to Michelle Russell,
Scott Blanscett, Kade Brown, Billy Ray Cower, Allan Starr, Jennifer Johnson, and
Robert Stubblefield. In order to convict Defendant on the applicable counts, namely
4–7, 18–26, 32–35, 41–42, 81–84, 108, 120–121; and 123–124 (the non-death
counts), 4 the jury had to conclude beyond a reasonable doubt that Defendant
knowingly and intentionally prescribed the controlled substances to each of these
patients outside the usual course of medical practice or without a legitimate medical
3
(...continued)
§ 841(b)(1)(C). The statute further states that “in the case of any controlled
substance in schedule III, such person shall be sentenced to a term of imprisonment
of not more than 10 years . . . .” 21 U.S.C. § 841(b)(1)(E)(i).
4
In his opening brief issue statement and heading for the section, Defendant
states he is challenging the sufficiency of the evidence on counts 4–7, 18–26, 32–35,
41–42, 81–84, 108, and 120–124. He also requests in his conclusion to his opening
brief that we vacate his conviction on those counts. But, in one sentence of his
opening brief, Defendant provides a different set of counts which includes counts
8–17, but excludes count 122. In his reply brief, Defendant explicitly states he is not
appealing his conviction on counts 8–17. Because Defendant, in his issue statement
and conclusion of his opening brief, as well as in his reply brief, asks us to vacate
the convictions only on counts 4–7, 18–26, 32–35, 41–42, 81–84, 108, and 120–124,
those are the counts we consider on appeal, with the exception of count 122, which
never existed in the indictment because of a numbering error.
6
purpose. 5 United States v. Nelson, 383 F.3d 1227, 1232 (10th Cir. 2004).
In conducting our de novo review, “we must examine whether, viewing the
evidence in the light most favorable to the Government, any rational trier of fact
could have found the defendant guilty of the crime beyond a reasonable doubt.”
United States v. Cooper, 654 F.3d 1104, 1115 (10th Cir. 2011) (internal quotation
marks omitted). We do not, however, “weigh conflicting evidence or consider
witness credibility.” Id. Moreover, “the fact that prosecution and defense witnesses
presented conflicting or differing accounts at trial does not necessarily render the
evidence insufficient.” Id.Defendant claims his case is unique because the Government did not charge
him with healthcare fraud, conspiracy, or any other crime indicating a scheme by
which Defendant sought to gain from unlawful prescribing. Defendant asserts the
Government did not contend that every prescription Defendant wrote to the patients
listed in the indictment was unlawful. Rather, Defendant believes the Government
5
We note the district court incorrectly instructed the jury they must find “that
the defendant knowingly and intentionally prescribed the controlled substances
outside the bounds of professional medical practice and not for a legitimate medical
purpose.” Jury Instruction 16 (emphasis added); see also Jury Instructions 20 and
22. In 2004, we held that “[a] practitioner has unlawfully distributed a controlled
substance if she prescribes the substance either outside the usual course of medical
practice or without a legitimate medical purpose.” Nelson, 383 F.3d at 1231–32
(emphasis added). This distinction is unimportant in this case, however, because the
evidence was sufficient for the jury to conclude Defendant prescribed the controlled
substances outside the usual course of medical practice and without a legitimate
medical purpose.
7
charged a violation of the Controlled Substances Act based on insufficient details in
Defendant’s charts for prescribing to a particular patient on a particular day.
Defendant posits one doctor’s subjective opinion of another’s charting practices is
not evidence of unlawful prescribing. Alternatively, Defendant contends that if the
evidence against him amounted to a criminal violation of the Controlled Substances
Act, his due process rights were violated because the statute failed to provide him
with notice that his conduct was prohibited. Defendant argues that no other
physician has engaged in analogous conduct and been prosecuted. Therefore, he had
no way of knowing his conduct would subject him to prosecution. In addition, he
asserts the language “outside the usual course of professional medical practice” and
“without a legitimate medical purpose” is overly broad and vague.
The Government contends Defendant waived his sufficiency challenge on the
non-death counts because of inadequate development of any factual or legal issues.
But even if we review the challenge, the Government argues Defendant cannot
prevail. The Government cites evidence that Defendant did not take adequate
medical histories, failed to conduct physical exams, provided excessive quantities of
drugs, and provided prescriptions to patients he never saw. The Government states
patient visits were extremely short and consisted of Defendant asking the patient if
he or she wanted a refill, with no medical examination or determination that the
drugs provided the patient any benefit. The Government states Defendant provided
prescriptions to his patients with knowledge that the patient was doctor shopping,
8
abusing his or her medication, had shared his or her medication, or had taken
Suboxone to treat narcotic abuse. 6 The Government also cites to evidence that
Defendant provided early refills, saw an excessive number of patients per day, took
no vital signs, and had cut and paste entries on his medical charts.
We disagree with the Government that Defendant waived his sufficiency
challenge. We therefore turn to the merits of Defendant’s claim. At trial, all seven
of these patients testified. In addition, Dr. Bradford Hare, a pain management
doctor, testified about his review of Defendant’s charts concerning those patients.
Although Defendant did not make an individual argument for each patient, we
believe we must examine whether the Government provided sufficient evidence to
show Defendant prescribed controlled substances to each patient outside the usual
course of medical practice and without a legitimate medical purpose.
A.
1.
We first look at the evidence the jury heard regarding Michelle Russell, the
patient involved in counts 4–7. Russell began seeing Defendant because of some
tenderness in her wrist. Trial Tr., 101, July 27, 2011. Defendant found the
tenderness, but did no further exam and took no x-rays. Defendant prescribed
6
Suboxone is a synthetic opioid combined with a narcotic antagonist. Trial
Tr., 50, July 27, 2011. Suboxone treatments are used to treat narcotic abuse. Id. at
138.
9
Lortab. Russell continued to see Defendant, but Defendant noted no further
evaluation of the wrist pain in her chart. Id. at 102. Another doctor referred her
back to Defendant for possible carpal tunnel syndrom, but Defendant continued to
prescribe Lortab. At some point, Defendant added to Russell’s chart that she was
having lower back pain, but the chart did not indicate Defendant evaluated the back
pain. Id. at 103. Defendant eventually diagnosed Russell with degenerative disc
disease. Id. at 104. But the chart does not suggest that Defendant conducted an
examination or ordered any tests, such as an M.R.I. scan that would have justified
that diagnosis. Based on his review of the file, Hare concluded no medical
justification existed for the prescriptions and that Defendant prescribed the Lortab
for no legitimate medical purpose. Id. at 105.
Michelle Russell testified at trial. She stated that although she told Defendant
she had wrist pain, she lied in order to get medication. Trial Tr., 110, August 4,
2011. Russell testified that Defendant grabbed one of her wrists and examined it.
He did not run any tests and wrote Russell a prescription. She testified she would
not have gone back to Defendant had he not prescribed Lortab, but he did so on a
monthly basis. The only other time Defendant examined Russell was when she
complained about her back. Id. at 111. The exam consisted of Russell standing up
and then bending over. During the time Russell visited Defendant, she admittedly
was “doctor shopping,” which means she received the same prescription from more
than one doctor. Id. at 116. Eventually, the Drug Enforcement Administration asked
10
Russell to go undercover. At one of these undercover visits, Defendant was already
writing Russell a prescription for Lortab when she walked into his office and
Defendant did not perform an exam or inquire about her pain or medical condition.
Id. at 124–25.
2.
Counts 18–26 involved Scott Blanscett. Blanscett came to Defendant’s office
complaining of an injury to one of his toes. Trial Tr., 123, July 27, 2011. Defendant
prescribed Blanscett hydrocodone and Lortab. Dr. Hare concluded Defendant did not
issue the drugs to Blanscett for a legitimate medical purpose based on Defendant’s
evaluation of the patient. Id. at 123. Prior to seeing Defendant, and throughout the
time Defendant was prescribing medication for Blanscett, Blanscett was receiving
at least as much medication, if not more medication, from other doctors. Id. at 125.
Defendant did not detect this. Hare was concerned about the lack of follow-up
information, and no indication that Blanscett was deriving any benefit from the
prescriptions. Id. at 126. Hare noticed a number of early refills when the direction
on the prescriptions would indicate a certain duration for the prescription. Id. at 130.
Hare testified Blanscett sometimes would use his medications twice as fast as
prescribed. Blanscett claimed to have lost prescriptions, but the controlled substance
database maintained by the Utah Division of Occupational and Professional
Licensing showed Blanscett had in fact filled the prescription. Defendant did not
draw any controlled substance database samples during the time he was treating
11
Blanscett. Id. at 134. Defendant eventually detected Blanscett’s abuse, but not until
the end of their time together.
Blanscett testified that he went to see Defendant for his toe. Trial Tr., 146,
August 1, 2011. Defendant looked at his toe and gave him a prescription for
hydrocodone, but nothing in the medical record indicates Defendant prescribed
hydrocodone on that first visit. Blanscett testified Defendant did not take any kind
of history and did not listen to his heart. Id. at 148. Defendant also prescribed
Blanscett Percocet in April 2006, though it was not indicated on his medical chart.
Id. at 149. During this time period, Blanscett admitted receiving OxyContin and
hydrocodone from other doctors. Id. at 153. The Government asked Blanscett why
he kept going back to see Defendant. Blanscett responded, “Because I could.”
Defendant did x-ray Blanscett’s ankle and told Blanscett he did not have a major tear
or break. Id. at 155. Blanscett testified that he once received a prescription from
Defendant without seeing him. Id. at 164. Blanscett called Defendant and told him
he needed a refill and Defendant “said he would drop it off at the Brigham City
emergency area place there” for Blanscett to pick up. Id. at 165. The prescription
was in an envelope, pinned to a corkboard in the hospital.
3.
Kade Brown is the patient relating to counts 32–35 of the indictment. Hare
testified Defendant, in his physical examination of Brown, believed Brown was
12
neurologically intact. 7 Trial Tr., 112, July 27, 2011. The medical record does not
provide any indication of what tests Defendant performed to make the determination
that Brown was neurologically intact. Hare stated he would expect to see that
information in the chart. Defendant prescribed Brown OxyContin. Hare believed
the specific dosage was too high for the patient. Id. at 113. Hare further testified
that Defendant did not have a legitimate medical purpose in prescribing the
OxyContin. Later, Defendant diagnosed Brown with degenerative disc disease, but
Hare could find no evidence in the chart that Defendant had been able to diagnose
that disease. Id. at 117. Moreover, Hare saw no evidence in the chart that Defendant
had received diagnoses from other physicians in consultation that provided a basis
for the diagnosis. Hare concluded that each of the prescriptions Defendant
prescribed for Brown were not issued for a legitimate medical purpose. Id. at 120.
Kade Brown testified that, at his first visit to Defendant, Defendant did not run
tests, did not take his blood pressure, did not listen to his heart, did not listen to his
lungs, did not look in his throat or nose, did not take his temperature, and did not
take his weight. Trial Tr., 28, July 22, 2011. Instead, Defendant “poked [his] back
and kind of touched [his] back.” Brown’s second visit was for a refill of the
7
If a physician believes that a neurologic examination is not needed on a
patient because that patient “seems to walk and talk pretty normally and moves
around pretty normally . . . the patient seems to be neurologically intact,” which
means the nervous system seems to be functioning normally. Trial Tr., 66, July 27,
2011.
13
OxyContin. At the follow up visit, Defendant again did not take any history, run any
tests, or check any vitals. Id. at 31. Brown testified that at subsequent visits,
Defendant “didn’t do anything. He just came in and said hi and we talked for a
minute and I got the refills.” Id. at 33. Twelve days after his third visit, Brown had
taken all of his 30-day supply of OxyContin, so he returned for a refill. Id. at 34.
Defendant gave Brown another full prescription at that time. The next month,
Defendant doubled Brown’s dosage. Id. at 35. Brown testified nothing was different
with respect to that visit. Although Defendant talked to Brown about performing an
M.R.I. scan, Brown never had one done. Id. at 36. Brown stated that he could not
afford the scan. Id. at 103. At one point, Brown and Defendant talked about Brown
doctor shopping because Brown had received a prescription from an “instacare”
facility. Id. at 38. Defendant cautioned Brown and they agreed Brown would not
doctor shop. Id. at 39. Despite Brown having previously signed a controlled
substances contract with Defendant, a document agreeing that a specific physician
will be the only provider of medication for a patient, Defendant did not terminate
Brown as a patient. Defendant did not change his medication or dosage or place
Brown under any limitations. Id. at 40. On March 13, Defendant prescribed Brown
OxyContin 40 and Lortab. He went through those medications quickly and came
back 13 days later. Id. at 45.
Even though Defendant noted in Brown’s chart that Brown had degenerative
disc disease, Defendant never relayed this diagnosis to Brown. Id. at 46. Moreover,
14
Brown never had an M.R.I. scan or x-ray of his back. Brown continued to go
through his monthly supply of medications quickly and returned consistently before
his monthly appointment. Id. at 47. Defendant continued to prescribe Brown full
prescriptions despite the shortened time period between appointments. Id. at 48. To
make matters worse, Brown’s insurance had stopped paying for the pain medication.
He began selling some of the medication in order to pay for the drugs. Id. at 49.
When he would run out of pills and could not see Defendant, Brown would turn to
heroin. On one occasion, Brown had gone through his pills in eight or nine days
because he sold them. Id. at 51. Brown told Defendant that he threw them away
because they were too strong. Brown testified Defendant told him “people like us
don’t throw pills away.” Id. at 52. Brown took that statement to mean “an addict,
a junkie.” Defendant refilled his prescription, but gave him 60 pills of a lower dose.
Brown returned twelve days later after he had gone through all the pills. Defendant
provided Brown with a prescription for 90 pills. Once Defendant moved into his new
office, the process moved faster. Id. at 59. Brown would check in at the front desk.
Then someone would call him back and Defendant was ready to see him. “The visit
would take place with the same introduction. Hi. How are you? Refills? Yes. Any
problems? No. Then he would write it out or they would already be written out, and
then I would take them and go.” Id.
4.
Counts 41 and 42 relate to Billy Ray Cower. Again, Hare testified that
15
Defendant did not have a legitimate medical purpose to issue the prescriptions to
Cower. Trial Tr., 135, July 27, 2011. Hare believed Defendant prescribed Percocet
to Cower based on the diagnosis of Osgood-Schlatter disease, a condition sometimes
known as “growing pains” among adolescents. Id. at 136. Hare stated this condition
is an intermittent problem, and not a continuous chronic pain problem. Hare
suggested that at no point did Defendant have adequate information to prescribe him
controlled substances. Id. at 136–37. Over time, the number of Percocet pills
increased. Id. at 137. Nothing in Cower’s medical chart showed that the medication
provided Cower any benefit. In December 2007, a message on Defendant’s
answering machine alerted Defendant that Cower was receiving Suboxone
treatments. Id. at 138. A subsequent notation from January 2007 indicated that
Defendant would “step aside” to let Cower continue the Suboxone treatment. Cower,
however, requested oxycodone and Defendant obliged him.
Cower testified that at his first visit, he told Defendant he had been diagnosed
with Osgood-Schlatter when he was younger. Trial Tr., 176, July 28, 2011.
Defendant examined Cower’s knees and then Defendant asked Cower if he needed
anything for pain. Other than stating he had Osgood-Schlatter disease, Cower
provided no other history to Defendant. Defendant did not check Cower’s blood
pressure, weight, heart, or lungs. Id. at 177–78. At later visits, Cower would go in
to a room, Defendant would ask if he needed a refill, then Defendant would write the
prescription and Cower would leave. Id. at 178. Defendant never performed an
16
exam or took vitals before increasing a dosage. Id. at 182. Defendant wrote in
Cower’s chart that he suffered from degenerative arthritic knees, but never told
Cower of the diagnosis. Id. at 181.
Cower began feeling nauseous if he stopped taking his medication. Id. at 185.
He had cold sweats and could not sleep. He was shaky, had diarrhea, and felt like
he had the worst flu he had ever had in his life. Defendant never explained the
consequences of withdrawing from the medication to Cower and never developed a
treatment plan. Once Defendant moved into his new office, Cower’s visits became
shorter. Id. at 186. Cower would walk in, pay his co-pay and sit down for a few
minutes. Then he would be called into the office and asked if he needed a refill.
Cower would then leave after obtaining the refill.
5.
Hare also reviewed patient Allen Starr’s medical chart. Starr was the patient
named in counts 81–84 of the indictment. Hare believed Defendant’s evaluation of
Starr’s history, physical examination, and follow-up treatment was inadequate to
support the prescription of the amount of opioid medications. Trial Tr., 148, July 27,
2011. Starr was eighteen years old and had back pain for four months before seeing
Defendant. His x-rays were normal and he was neurologically intact. Id. at 149.
Hare believed Starr’s family pushed to get Starr on opioids. Defendant escalated the
amount of methadone he prescribed to Starr without explaining in the chart why he
changed the dose. Id. at 150. By the time Starr turned 20 years old, Defendant
17
diagnosed him with degenerative disc disease, but Hare stated nothing in the medical
record supported that diagnosis. Id. at 152.
Starr testified he asked Defendant about OxyContin on the first visit. Trial
Tr., 153, August 3, 2011. Defendant told him he had never prescribed OxyContin
for an 18 year old. Starr’s stepmother then asked about methadone. Defendant
provided him with methadone without performing a physical examination. Id. at
152. Defendant did not warn Starr about the effects of methadone. Id. at 153. One
summer, Starr worked in New Mexico. Id. at 161. Starr obtained four prescriptions
for methadone from Defendant without returning to Utah. Starr said he would arrive
at Defendant’s office, sit down at his table, and Defendant would ask if Starr needed
a refill. Id. at 163. Defendant would write Starr a refill without examination and
Starr would leave. Id. at 164. Defendant eventually added Lortab to Starr’s
prescription of methadone, but after the Lortab made Starr sick, Starr switched to
Percocet. Id. at 164–65.
Starr left Utah and did not see Defendant for over one year. Id. at 180. When
Starr returned, Defendant had moved to his new office. Defendant did not run any
new tests and did not tell Starr he was diagnosing him with degenerative disc
disease. Id. at 180–81. Starr did not provide Defendant with the M.R.I. scans that
other doctors had ordered during the year away. Id. at 181. Once Defendant moved
to his new office, Starr would sit down and explain how he was feeling more pain
and Defendant would write a refill. Id. at 183. Starr would then leave.
18
6.
Jennifer Johnson was the patient named in count 108. Hare testified
Defendant did not prescribe the controlled substances listed in the indictment for a
legitimate medical purpose. Trial Tr., 157, July 27, 2011. Hare said Defendant’s
initial evaluation of Johnson was inadequate to support the prescribing of the
controlled substances. And as Johnson proceeded through treatment with Defendant,
Hare believed the fact that she was obtaining medications from many doctors
simultaneously to his prescribing was evident. Defendant noted in Johnson’s chart
at the initial visit that Johnson stated the only medication she was taking was Xanax.
Id. at 158. A check of the controlled substances database at the time would have
showed she was obtaining hydrocodone “pretty continuously” for several years prior
from another doctor. In another patient’s chart, Johnson was labeled as a doctor
shopper. This note from April 23, 2008 indicated that Defendant said he talked to
Johnson, but the subject is not noted in Johnson’s chart. Id. at 159. Approximately
four to six weeks later, another indicator from the narcotics strike force appeared in
Johnson’s file that she was continuing to get prescriptions from other providers. At
that point, Defendant stated he would not see her again. Id. at 160. Defendant,
however, continued to prescribe Johnson Aprazolam, an abusable substance, through
November 2008 and prescribed Lortab once in November 2008.
Johnson testified that Defendant did look at x-rays taken by an emergency
room physician and asked about a car accident. Trial Tr., 125, July 28, 2011.
19
Defendant did not weigh Johnson, did not take her blood pressure, did not listen to
her heart or to her lungs, did not take her temperature, and did not look in her mouth,
ears, or nose. Id. at 125–26. Defendant looked at her back and pressed on parts of
her back and prescribed her Lortab. Id. at 126–27. When Defendant practiced in his
old office, Defendant would ask her if she needed a refill and she would say “yes.”
Id. at 128. Defendant would write out the prescription, talk into a recorder, and
record what transpired at the visit. Defendant did not perform any evaluations at
subsequent visits, even when he doubled her dosage. Id. at 128, 132. Defendant
diagnosed Johnson with degenerative disc disease, but never informed her of the
diagnosis. Id. at 135. In November 2008, Johnson attempted to commit suicide by
cutting her wrist. Id. at 141–42. After leaving the emergency room after being
treated for the suicide attempt, Johnson walked to Defendant’s office and scheduled
an appointment for a few days later. At the appointment, Defendant did not ask her
what had been happening in her life, did not ask her about the emergency room visit,
and did not mention the bandage on her hand. Id. at 142. Defendant asked Johnson
whether she was still taking Suboxone and she said no. He then provided her with
Lortab. During the 2008 period, Johnson was taking 25 to 50 Lortab pills per day.
Id. at 143.
7.
Finally, we turn to patient Robert Stubblefield, who was the subject of counts
120–121 and 123–124 of the indictment. Hare again concluded Defendant did not
20
issue the prescriptions to Stubblefield for a legitimate medical purpose. Trial Tr.,
161, July 27, 2011. Hare said Stubblefield was 25 years old and had back pain from
a recent fall and some diffuse tenderness. Id. at 162. Stubblefield was
neurologically intact. Although Hare said short-term prescriptions may have been
justified, a long-term prescription of increased doses of pain medication with no
further evaluation was not justified. Stubblefield began doctor shopping. Defendant
wrote in Stubblefield’s chart that he would be willing to see him if he was the only
prescriber. Id. at 163. Defendant told Stubblefield he would check the database
every other visit. But Hare testified no one in the office ran a check of the database.
In addition, Defendant prescribed early refills for Stubblefield. Trial Tr., 10, July
28, 2011. In November 2006, Defendant prescribed OxyContin and Percocet to
Stubblefield. He returned two weeks later and Defendant refilled the same
medication “with really no indication of any further problems or issues.” Id. Hare
described this use of Stubblefield’s medication as a “fairly continuous pattern.” Id.
at 11.
Stubblefield testified that at his first visit to Defendant, Defendant did not take
a medical history or perform a physical examination before giving him a prescription
for Percocet. Trial Tr., 63–64, July 29, 2011. At the second visit, Defendant told
Stubblefield that he had not yet received his medical records, but if he needed a
refill, he would write a prescription. At the third visit, Defendant increased
Stubblefield’s dosage. Id. at 65. Defendant had Stubblefield sign a controlled
21
substances agreement. But the next notation in the chart is a conversation regarding
Stubblefield’s arrest for falsifying a prescription and Stubblefield’s problems with
doctor shopping. Id. at 67–68. Defendant did not terminate the relationship and
continued prescribing for Stubblefield. Id. at 68. As to his early refills, Stubblefield
said he would call the office to make an early appointment. He said, “[m]aybe once
it became an issue that we were early, but we would do it every month.” Id. at 84.
B.
Defendant asserts the Government’s chief evidence was Dr. Hare’s subjective
opinion of Defendant’s charting practices, which does not amount to unlawful
prescribing. The jury did not convict Defendant for failing to chart correctly. Hare
looked at Defendant’s charts. He explained to the jury that no legitimate medical
basis existed to prescribe the medications in the quantity and over the time span
Defendant prescribed to each indictment patient in this appeal. The charts revealed
such activities as early refills on prescriptions, lack of depth in examinations, and
instances where Defendant recorded a diagnosis without relaying that information
to the patient. Accordingly, the evidence to support his conviction came from the
information gleaned from the charts, not one doctor’s subjective opinion of another’s
charting practices.
Defendant additionally contends Hare did not testify the medications
Defendant prescribed were “incorrect” to treat each patient’s pain or that the quantity
was unreasonably high. We disagree. Hare testified that no medical justification
22
existed for the prescriptions Defendant wrote Russell and that Defendant prescribed
the Lortab outside of a legitimate medical purpose. Trial Tr., 105, July 27, 2011.
Hare testified Blanscett was receiving narcotics from other doctors and that
Defendant was providing early refills without any indication the medications were
helping Blanscett. Id. at 125–26, 130. Hare stated Defendant’s prescribed dosage
for Brown was too high. Id. at 112. As to Cower, Hare believed Defendant never
had adequate information or a diagnosis to allow Defendant to initiate the prescribing
of controlled substances. Id. at 136–37. Hare stated no information supported
prescribing the amount of opioid medications Defendant prescribed to Allen Starr.
Id. at 148. As to Johnson, Hare found inadequate support to justify prescribing
controlled substances and added that a check of the controlled substances database
would have shown she was obtaining hydrocodone on a regular basis. Id. at 157–58.
Finally, Hare testified that long-term prescribing of increased doses of pain
medication to Stubblefield with no further evaluation was unjustified. Id. at 162.
Defendant further argues the Government is unable to point to any specific
evidence that shows Defendant stepped out of his role as a physician and into that
of a criminal drug dealer. But the above trial testimony reveals the Government did
present evidence as to each patient named in the non-death counts. Dr. Hare stated
that Defendant prescribed to each patient without a legitimate medical purpose. And
each of these patients backed up Hare’s testimony. Moreover, the front desk
receptionist testified that on two days when Defendant was sick, she gathered the
23
charts for that day and another staff member took the prescription pad to Defendant’s
home. Trial Tr., July 20, 2011, 164–65. The receptionist saw the staff member
return with the charts and prescriptions that Defendant signed. Id. The receptionist
did not cancel the appointments. Instead, she greeted the patients and put them in
a room. Id. at 166. A staff member would go into the room and give the prescription
to the patient and say that Defendant was ill that day. Id. The patient would leave,
check out at the back desk, and make his or her next monthly appointment. Id.
Despite the above facts, Defendant attempts to distinguish the facts of his case
from two cases in which he states the physician engaged in blatant criminal conduct.
In the first case, United States v. Moore, 423 U.S. 122 (1975), the Supreme Court
determined persons registered under the Controlled Substances Act could be
prosecuted under the Act. The Supreme Court stated Moore had “conducted a large-
scale operation.” Id. at 126. Three District of Columbia pharmacies filled 11,169
prescriptions from Moore over a 5.5 month period. On 54 days during that time
period, Moore wrote over 100 prescriptions a day. Moore billed his patients using
a “sliding-fee scale” based on the quantity prescribed. Moore gave his patients only
“the most perfunctory examination,” consisting of a request to see the patient’s
needle marks and an unsupervised urinalysis. Id. Moore performed no physical
exams at follow up appointments, did not keep accurate records, did not record the
quantity of drugs prescribed, and did not supervise the administration of the drug.
Defendant also cites United States v. Feingold, 454 F.3d 1001 (9th Cir. 2006).
24
Feingold prescribed controlled substances to patients he never physically examined.
He did not record the medical basis for prescribing the drugs in his patients’ medical
charts. Feingold prescribed controlled substances to recovering addicts and
prescribed in excess of the maximum dosages he recommended. In one case,
Feingold prescribed more than 3,000 pills to a patient in a single month. Two of
Feingold’s patients were undercover DEA agents. Even with all of this evidence,
Feingold insisted he had been prescribing the drugs in good faith to help his patients
manage their pain. Id. at 1006.
Defendant attempts to distinguish his case by arguing that all of the indictment
patients were his actual patients and not undercover law enforcement, although two
of his patients later became confidential informants. Defendant further reasons all
of the prescriptions at issue were in the context of a regular doctor visit and no
evidence suggested that he ever charged based on the number of prescriptions or the
quantity or type of medications. Defendant fails to see his conduct is similar to the
defendants’ conduct in the cases he cites. Neither the Supreme Court in Moore, nor
the Ninth Circuit in Feingold stated that a specific set of facts had to be present in
order to find that a physician stepped outside of his role and issued prescriptions
without a legitimate medical purpose. Both cases looked to the facts in the record
to conclude enough facts existed for a fact finder to affirmatively determine that the
physician issued the drugs for an improper purpose. Defendant argues that his
patients legitimately experienced pain. Even assuming each patient had pain, a
25
doctor may still prescribe medications without a legitimate medical purpose. Hare’s
testimony, as well as the testimony of the patients, illustrates this very point.
Viewing the evidence in the light most favorable to the Government, we
conclude the evidence in this case is quite sufficient to support Defendant’s
convictions on the non-death counts. See Moore, 423 U.S. at 142 (evidence that the
defendant physician “gave inadequate physical examinations or none at all,” “took
no precautions against [prescription] misuse or diversion,” and “did not regulate . .
. dosage” was sufficient to prove that “conduct exceeded the bounds of ‘professional
practice’”); Feingold, 454 F.3d at 1004–05 (evidence was sufficient where doctor
prescribed large quantities of controlled substances without conducting physical
examinations or recording bases for the prescriptions in medical charts
“overwhelmingly demonstrated his disregard for proper prescribing practices”);
United States v. Tran Trong Cuong, 18 F.3d 1132, 1139 (4th Cir. 1994) (holding
evidence sufficient to support conviction where doctor prescribed pain medication
for “nebulous” ailments after “superficial physical examinations”).
C.
We now address Defendant’s alternative argument that the Controlled
Substances Act failed to provide him with fair notice and that the statute is vague. 8
8
Defendant argues that the language, “outside the usual course of professional
medical practice” and “without a legitimate medical purpose,” is so broad that it can
encompass a great deal of lawful conduct. To the extent Defendant attempts to
(continued...)
26
“Elemental to our concept of due process is the assurance that criminal laws must
‘give a person of ordinary intelligence fair notice that his contemplated conduct is
forbidden by the statute,’ and those that fail this test are treated as no laws at all:
they are ‘void for vagueness.’” United States v. Lovern, 590 F.3d 1095, 1103 (10th
Cir. 2009) (quoting Colautti v. Franklin, 439 U.S. 379, 390 (1979)). A vagueness
challenge to a statute that does not involve the First Amendment “must be examined
in light of the facts of the case at hand.” Vill. of Hoffman Estates v. Flipside,
Hoffman Estates, Inc., 455 U.S. 489, 495 n.7 (1982). Defendant argues no other
physician who conducted himself or herself in the same manner has ever been
prosecuted under the Controlled Substances Act. Accordingly, he could not know
he engaged in prohibited conduct. Despite his emphatic stance, Defendant
acknowledges one factually analogous case, but dismisses its importance because the
Eleventh Circuit reversed and remanded the defendant’s conviction on all counts.
United States v. Ignasiak, 667 F.3d 1217 (11th Cir. 2012). Unfortunately for
Defendant, before the Eleventh Circuit announced it reversed because of a
Confrontation Clause issue, the court stated the evidence was sufficient to support
the Defendant’s conviction. Id. at 1229.
As applied to Defendant, the Controlled Substances Act is not vague.
8
(...continued)
attack the statute as overbroad using the regulatory language, we disagree.
“[O]utside the limited First Amendment context, a criminal statute may not be
attacked as overbroad.” Schall v. Martin, 467 U.S. 253, 268 n.18 (1984).
27
Ignasiak aside, we conclude Defendant had notice the statute prohibited his conduct
based on our own circuit case law. 9 United States v. Jamieson, 806 F.2d 949, 951
(10th Cir. 1986) (prescribing doctor gave drugs when patients asked for them and
wrote prescriptions when patients took drugs more frequently than directed); United
States v. Varma, 691 F.2d 460, 464 (10th Cir. 1982) (prescribing doctor took
incomplete medical histories and gave short and inadequate physical examinations).
Defendant had several years of experience as a doctor. At trial, Defendant testified
that a doctor has a responsibility to evaluate whether a patient is adversely affected
by prescriptions and to make sure his patients are complying with medication
agreements. Trial Tr., 70, August 16, 2011. Defendant also admitted at trial that he
did not look at certain controlled substance database reports. Id. at 83, 85, 98, 106.
Further, he often did not question his patients’ excuses for early refills because he
trusted them, even when looking to the controlled substance database would have
shown those patients filled the original prescription. Id. at 83. Patient testimony
revealed Defendant did not conduct follow-up examinations before writing
9
Even though we conclude Supreme Court and circuit precedent foreclose
Defendant’s due process argument, we must address Defendant’s underlying premise
of this argument. Defendant’s assertion his due process rights were violated because
he was the first doctor engaging in this conduct to be prosecuted is simply untenable.
Although the Due Process Clause “bars courts from applying a novel construction
of a criminal statute to conduct that neither the statute nor any prior judicial decision
has fairly disclosed to be within its scope,” United States v. Lanier, 520 U.S. 259,
266 (1997), the Due Process Clause does not bar the Government from filing charges
against a defendant if his conduct is within the scope of the statute, even when the
Government has never filed such charges in the past.
28
prescriptions for refills. A reasonable jury could find Defendant knowingly
prescribed controlled substances outside the usual course of medical practice and
without a legitimate medical purpose. Based on the record, we cannot say Defendant
was the victim of a law he did not understand.
III.
Next, Defendant argues the district court erred in denying his motion for
judgment of acquittal on counts 1 and 2. Recall count 1 alleged Defendant
prescribed oxycodone in violation of the Controlled Substances Act to David Wirick,
resulting in Wirick’s death and count 2 alleged Defendant prescribed hydrocodone
in violation of the Controlled Substances Act to Wirick, also resulting in Wirick’s
death. In addition to having to prove that Defendant knowingly and intentionally
prescribed the controlled substances outside the usual course of medical practice or
without a legitimate medical purpose, the Government, to convict Defendant on
counts 1 and 2, also had to prove Wirick died as a result of taking the prescribed
medications and that his death was reasonably foreseeable.10 At oral argument, the
Government addressed what it believed to be a circuit split on the issue of whether
10
The penalty section of § 841 provides that “[i]n the case of a controlled
substance in schedule I or II [i.e., oxycodone], . . . if death or serious bodily injury
results from the use of such substance [such person] shall be sentenced to a term of
imprisonment of not less than twenty years or more than life . . . .” 21 U.S.C. §
841(b)(1)(C). “[I]n the case of any controlled substance in schedule III [i.e.,
hydrocodone mixtures], . . . if death or serious bodily injury results from the use of
such substance [such person] shall be sentenced to a term of imprisonment of not
more than 15 years. 21 U.S.C. § 841(b)(1)(E)(i).
29
the “death having resulted from” language in the indictment is an enhancement or an
element of the offense. Compare United States v. Krieger, 628 F.3d 857, 867 (7th
Cir. 2010) (concluding mandatory minimum provision in § 841(b) is a sentencing
enhancement provision); with United States v. Burrage, 687 F.3d 1015, 1023–24
(8th Cir. 2012) (referring to “death resulted from” as an element without analysis).
Because we hold the Government presented sufficient evidence to prove the
oxycodone resulted in death and the hydrocodone resulted in death, we need not
address this issue. We also must add that because the Government requested an
instruction on reasonable foreseeability, it was required to prove that element.
United States v. Romero, 136 F.3d 1268, 1273 (10th Cir. 1998) (“the Government
is required to prove all elements put forth in unchallenged instructions to the jury,
even if the Government would not, under law, be otherwise required to do so”). As
we will discuss in further detail below, because of the posture of this case, we do not
opine on whether § 841(b)’s language contains a foreseeability or proximate cause
requirement.
A.
Wirick was a former firefighter who severely injured his back on the job.
Wirick began seeing Defendant in 1999 and continued to see him for approximately
seven years. In January 2006, Wirick overdosed on methadone Defendant had
prescribed him. After the overdose, Wirick and his family physician, Dr. Stephen
Bruce, agreed that Bruce would exclusively treat Wirick. Trial Tr., 27, August 3,
30
2011. A few months after the agreement, Wirick went to see Bruce, but Bruce was
out of town. Id. at 40. Wirick asked another doctor in Bruce’s practice for an early
refill of pain medication, but that doctor refused. Wirick then went to see Defendant
on May 3, 2011. On that day, Defendant billed 92 patients in six and a half hours.
Trial Tr., 30, July 28, 2011. Defendant prescribed Wirick both oxycodone and
hydrocodone. Three days later, Wirick died. Count 1 alleged Defendant knowingly
and intentionally distributed 60 ten-milligram oxycodone tablets to Wirick. Count
2 alleged Defendant knowingly and intentionally distributed 90 ten-milligram
hydrocodone tablets to Wirick. Counts 1 and 2 further alleged Wirick died as a
result of taking the prescribed medications.
The Government introduced Wirick’s autopsy report, prepared by Dr. Maureen
Frikke. At the time of trial, Frikke was deceased. Dr. Todd Grey, Utah’s Chief
Medical Examiner, testified as to the cause of death. He posited Wirick died as a
result of the combined effects of drug toxicities, specifically the combination of
oxycodone and Valium as well as pneumonia. Dr. Grey testified the level of
hydrocodone was below the limit of what is considered potentially toxic and the level
of oxycodone was in the therapeutic range. He further testified that pneumonia itself
was potentially lethal. Dr. Stacy Hail, a toxicologist, also testified. Dr. Hail
reviewed the autopsy report and testified that Wirick died of drug toxicity because
of the presence of hydrocodone, oxycodone, and Valium. Dr. Hail excluded
pneumonia as an immediate cause of death. Dr. Michael Baden, Defendant’s expert,
31
opined that Wirick died from a severe case of undiagnosed pneumonia and that
Wirick’s drug levels were normal for people who used narcotics for prolonged
periods of time.
At the close of the Government’s case, Defendant made his oral motion for
judgment of acquittal. The district court denied the motion, concluding sufficient
evidence existed in the Government’s case in chief from which a rational fact finder
could find guilt beyond a reasonable doubt. At the end of trial, Defendant renewed
his motion on all counts, but stated he wanted to particularly focus on counts 1 and
2. The district court sent the case to the jury, but took the renewed Rule 29 motion
under advisement as to counts 1 and 2. After trial, Defendant filed a memorandum
in support of his motion for acquittal on counts 1 and 2. The district court issued a
written order denying the motion for judgment of acquittal on counts 1 and 2. The
court concluded that the facts, attending circumstances, and reasonable inferences
provided evidence on which a jury could conclude beyond a reasonable doubt that
Defendant acted outside the bounds of professional practice and without a good faith
belief that his prescriptions for Wirick were for a legitimate medical purpose. The
district court further concluded the evidence was sufficient for the jury to reasonably
conclude beyond a reasonable doubt that the drugs in Wirick’s system came from
Defendant’s prescriptions, the use of the oxycodone and hydrocodone resulted in
Wirick’s death, and the death was reasonably foreseeable.
32
B.
Defendant first argues the Government did not prove Defendant prescribed
Wirick the medications for any purpose other than a legitimate medical purpose.
Defendant points to the trial testimony of Dr. Bruce and Wirick’s wife and son
regarding Wirick’s documented chronic, severe lower back pain. Trial Tr., 25, 70,
76, 112–13, August 3, 2011. Defendant suggests no evidence showed Wirick took
medications for recreational purposes or sold them to others. Defendant asserts this
testimony proves that Wirick was in constant pain and Defendant prescribed the
prescriptions within the bounds of professional medical practice for the legitimate
medical purpose of pain management. Defendant also states Bruce did not have a
problem with the fact that Defendant saw Wirick on May 3, which showed a
disagreement between Bruce and Hare, two of the Government’s witnesses.
Defendant asserts that this conflict, in and of itself, creates reasonable doubt on this
issue as a matter of law. 11
The jury heard evidence regarding Defendant’s general manner of practice,
including Defendant’s failure to take adequate medical histories and conduct physical
exams. The jury heard Defendant was aware that Wirick overdosed on methadone
in January 2006, only two days after Defendant prescribed the methadone. Trial Tr.,
11
Even if Bruce had no problem with Wirick seeing Defendant, Bruce testified
Defendant inappropriately gave Wirick the specific quantity of medication on the
May 3 visit. Trial Tr., 46, August 3, 2011.
33
128, August 16, 2011. Defendant also saw 80 patients the day he prescribed the
methadone. Trial Tr., 46, August 9, 2011. The jury saw no evidence in Wirick’s
chart that Defendant cautioned Wirick about the methadone. The jury learned that
after the overdose, Bruce spoke with Defendant regarding Bruce and Wirick’s
agreement that Bruce would be Wirick’s only doctor. Despite Wirick’s presence on
Defendant’s do-not-see list, Defendant prescribed Wirick full prescriptions for
oxycodone, hydrocodone, and Soma on May 3. 12 Trial Tr., 136, August 16, 2011.
The jury heard that Defendant did not check with Bruce’s office before prescribing
the medication on May 3. Id. at 131. Defendant testified he did not take Wirick’s
vital signs. Id. at 135. On May 3, Defendant saw 92 patients in 6.5 hours. Id. at
133. Even though Bruce testified Wirick had a legitimate need for pain management,
Bruce also stated Defendant acted inappropriately in providing Wirick the quantity
of drugs he gave him on May 3. Trial Tr., 45–46, August 3, 2011.
To be sure, the jury heard conflicting evidence as to whether Defendant
prescribed to Wirick outside the usual course of medical practice and not for a
legitimate medical purpose. But conflicting evidence does not per se create a
12
Defendant states that Dr. Bradford Hare testified that an exclusive contract
existed between Dr. Bruce and Defendant that prevented Defendant from prescribing
Wirick medication. Trial Tr., 30, July 28, 2011. Hare testified “there was an
exclusive contract with Dr. Bruce that Dr. MacKay was aware of for Dr. MacKay not
to prescribe.” Id. Regardless, Defendant correctly asserts that the agreement was
an oral agreement between Bruce and Wirick that Wirick would receive medications
solely from Bruce. Trial Tr., 20, 27–28, August 3, 2011.
34
reasonable doubt. Where the evidence conflicts, “we accept the jury’s resolution of
conflicting evidence and its assessment of the credibility of witnesses.” United
States v. Chavez-Marquez, 66 F.3d 259, 262 (10th Cir. 1995). The above evidence,
when examined in its entirety and in the light most favorable to the Government, is
sufficient to show Defendant stepped outside of his role as a physician to Wirick and
did not prescribe the medication for a legitimate medical purpose. Specifically, the
jury heard evidence that Defendant did not check with Bruce’s office on May 3
before writing the prescriptions and did not take Wirick’s vital signs. Moreover, the
jury heard Bruce’s testimony that the quantity of drugs Defendant provided Wirick
was inappropriate and more than necessary to treat Wirick’s pain until Wirick could
see Bruce. The jury could examine these facts and conclude Defendant engaged in
criminal conduct. See Moore, 423 U.S. at 142–43 (concluding doctor acted as a
“large-scale ‘pusher’ not as a physician” when he gave inadequate physical
examinations, ignored the results of the tests he did make, took no precautions
against a drug’s misuse and diversion, did not regulate dosage, prescribing as much
and as frequently as the patient demanded). Accordingly, we agree with the district
court that the evidence was sufficient for the jury to conclude Defendant stepped
outside of his role as a physician.
C.
Next, Defendant contends the Government presented no testimony or evidence
that either medication, the oxycodone identified in count 1 and the hydrocodone
35
identified in count 2, alone was sufficient to cause Wirick’s death. Rather, he says
the Government’s experts testified that Wirick died from the combined effect of the
drugs. The Government asserts Defendant forfeited this argument on appeal by not
raising it to the district court and failing to argue for plain error review in his
opening brief. Defendant says his argument is not “new” on appeal. Instead,
Defendant states his argument is simply a recitation of what the Government was
required to prove in this case. In his reply brief, Defendant states he challenged the
sufficiency of the evidence as to every disputed element of the offenses. Defendant
contends each time he made his Rule 29 motion, he challenged the sufficiency of the
evidence to prove the prescriptions charged in counts 1 and 2 were unlawfully
issued, the medications prescribed caused Wirick’s death, and Wirick’s death was
a reasonably foreseeable consequence of Defendant’s issuance of the two
prescriptions. Defendant posits that implicit in his argument on causation “was that
the Government had failed to prove that the oxycodone or hydrocodone caused
Wirick’s death.”
We therefore must examine Defendant’s Rule 29 motion. We agree with the
Government that, at trial, Defendant failed to present this specific argument in his
oral motions for judgment of acquittal. Trial Tr., 195–96, August 9, 2011, Trial Tr.,
161, August 16, 2011. After trial, however, Defendant filed a memorandum in
support of his motion for acquittal on counts 1 and 2. Therein, Defendant argued the
evidence was insufficient to establish beyond a reasonable doubt that Wirick died as
36
a result of Defendant’s conduct and that Wirick’s death was reasonably foreseeable.
Specifically, Defendant asserted the theory that the drugs killed Wirick “was only
one of four causes of death that was presented at trial.” Defendant’s argument
appeared to be that four experts could not come to an agreement, therefore the jury
could not have found beyond a reasonable doubt that the drugs caused Wirick’s
death. Within that argument, Defendant had one sentence relating to the issue he
now raises on appeal: “Even Dr. Frikke . . . in her autopsy report admitted . . . that
neither the hydrocodone or the oxycodone alone were at a concentration range that
has been reported to cause death and that Mr. Wirick’s pneumonia was a
complication.” Aplt. App’x 154. We will give Defendant the benefit of the doubt
that he raised this issue in his Rule 29 motion. 13
Because Defendant did not forfeit this argument, we turn to the merits of
Defendant’s second sufficiency claim. In his opening brief, Defendant asserts the
jury had to reject Baden’s expert testimony in its entirety in order to convict
Defendant on counts 1 and 2. Defendant contends such a result is unreasonable. We
disagree. When experts do not reach the same conclusion, the jury is responsible for
making credibility determinations, not the court. 14
13
Even if Defendant had forfeited the issue and we reviewed for plain error,
our plain error analysis in this context is essentially the same as our usual sufficiency
of the evidence analysis. United States v. Gallant, 537 F.3d 1202, 1223 (10th Cir.
2008).
14
Defendant appeared to understand this in the district court. In his proposed
(continued...)
37
We examine the record to determine whether the jury could conclude beyond
a reasonable doubt that the oxycodone alone could have caused death and that the
hydrocodone alone could have caused death. Dr. Frikke, the doctor who performed
the autopsy, “certified that the death was due to drug toxicity poisoning with
hydrocodone and oxycodone.” Id. at 33. Dr. Grey, Utah’s Chief Medical Examiner,
however, testified “Wirick died as a result of combined effects of drug toxicities,
specifically with oxycodone and diazepam as well as bronchopneumonia.” Trial Tr.,
29–30, August 2, 2011. Grey testified that he determines drug toxicity based
primarily on the findings from toxicology. Id. at 39. In this case, the hydrocodone
in Wirick’s blood sample was 0.09 milligrams per liter. Id. According to Grey, a
hydrocodone level of 0.09 “is a level that is above expected therapeutic and just
below the lower limit of what is considered potentially toxic.” Id. at 42. Likewise,
the oxycodone in Wirick’s blood sample was 0.09 milligrams per liter. Id. at 39.
Again, the oxycodone is in the high therapeutic range. Id. at 43. Grey testified that
“[t]oxic level would be adverse effects. Lethal level would be what is reported as
something that pretty much guarantees you’re going to die lethally.” Id. Grey
believed that none of the individual drug levels would kill a person and that no
14
(...continued)
jury instruction number 16, he requested that the jury be instructed as follows: “If
you should decide that the opinion of an expert . . . is outweighed by other evidence,
including that of other ‘expert witnesses’, you may disregard the opinion in part or
in its entirety.” Appellee’s Supp. App’x, vol. I, 67 (emphasis added).
38
specific drug was present in Wirick’s body at a level high enough to be considered
lethal. Id. at 44, 47.
In contrast, Dr. Hail, the only board certified toxicologist to testify, stated that
hydrocodone and oxycodone were the drugs that resulted in Wirick’s death. Hail
testified that although other drugs may have contributed to Wirick’s death, the death
would not have occurred absent the hydrocodone and the oxycodone. Id. at 160–161.
Contradicting Grey’s opinion, Hail testified “there is no such thing as a lethal drug
level postmortem.” Id. at 162. Hail provided the jury with an example. If everyone
in the courtroom overdosed on hydrocodone at that moment and she drew blood
levels in everyone, everyone would be surprised how different the levels would be
in one person to the next. Id. at 162–163. Hail said some drugs have meaningful
levels in living patients, but not the drugs in this case. Id. at 163. She testified that
if the levels of drugs are meaningless in living patients, they are even less
meaningful in dead patients. Id. Moreover, Hail testified people are incorrect when
they imagine a poster in the medical examiner’s office with all of the drugs known
to man and the lethal level of those drugs. Id. No such poster exists. Id. In contrast
to Grey, Hail stated, “All I want to see is the presence of these drugs postmortem.
I don’t care what the level is.” Id.
On cross-examination, Defendant’s counsel asked Hail about toxicity levels.
Hail stated that although toxicity levels do not matter, the quantity of pills taken does
matter. Id. at 181. She said Wirick’s high tolerance to opiates and opioids from his
39
heavy use would not equate to immunity. Id. Defendant’s counsel asked Hail, “Any
witness who talks about toxic levels is just plain wrong; is that your testimony?” Id.
at 182. Hail said, “Correct, because they are not a toxicologist. They don’t
understand that.” Id. Hail reached that conclusion because medical examiners
“don’t treat patients in the roles of the living, so I don’t expect them to understand
and have the same knowledge that I have about what these numbers mean.” Id.
Finally, Hail testified that the drug poisoning occurred before Wirick developed
pneumonia. Id. at 168, 185.
Viewing this evidence in the light most favorable to the Government, a
reasonable jury could conclude beyond a reasonable doubt that the oxycodone by
itself and the hydrocodone by itself resulted in Wirick’s death. Hail testified that the
drug levels of the oxycodone and the hydrocodone are meaningless. This statement
is further supported by Grey and Hail’s testimony that blood samples taken from the
heart, such as Wirick’s blood sample, can vary from the actual blood toxicity level.
This is because some drugs can have an effect called postmortem redistribution.
Trial Tr., 41, August 2, 2011. Postmortem redistribution may cause drugs to become
more concentrated or less concentrated in heart tissue after death. Id. For example,
Grey testified that hydrocodone’s range of levels between the heart and peripheral
areas can vary from a ratio of “0.6 to four.” Id. Moreover, the jury heard Wirick
had taken a large amount of hydrocodone and oxycodone. Although Hail did not
explicitly state the hydrocodone alone could have killed Wirick or the oxycodone
40
alone could have killed Wirick, the testimony Hail provided, viewed in the light most
favorable to the Government, could allow the jury to reasonably infer that the
oxycodone alone caused Wirick’s death and that the hydrocodone alone caused
Wirick’s death. At a motion hearing on September 21, 2011, Defendant argued
Hail’s testimony was “completely irrational and completely ridiculous.” Aplt. App’x
400. But the jury had every right to find Hail, a board certified toxicologist
testifying that blood toxicity levels do not matter, more credible than Grey or Baden
and to disregard any testimony it deemed not credible. Accordingly, we conclude
no error, plain or otherwise, exists as to the sufficiency of the evidence on both
counts 1 and 2. 15
D.
Next, Defendant contends the district court based its denial of his motion for
judgment of acquittal on improper evidence. Specifically, Defendant posits the
district court erroneously considered Dr. Frikke’s autopsy report as evidence separate
and apart from Dr. Grey’s testimony. In its written opinion denying the motion for
judgment of acquittal on counts 1 and 2, the district court noted the jury heard
“testimony” from four different doctors as to Wirick’s cause of death, including Dr.
15
In a later subsection of his opening brief, Defendant re-argues the district
court erred in denying his Rule 29 motion because reasonable doubt existed that
Wirick’s death resulted from the medications Defendant prescribed. For the precise
reasons discussed in this section, however, we disagree with Defendant’s re-
argument.
41
Frikke, who was deceased, and Dr. Grey. The district court thus considered Frikke’s
autopsy report as “testimony” presented at trial. Defendant states he did not object
to the Government offering Dr. Grey’s expert testimony regarding Wirick’s cause of
death because he believed Grey’s opinion and testimony were being offered in lieu
of Frikke’s, not in addition to the conclusions contained in the autopsy report. 16
Trial Tr., 32, August 2, 2011 (“Just for the record, I have no problem. I think it’s
a public record -- the actual report of the examination.”). Defendant now argues the
autopsy report’s admission into evidence presents a Confrontation Clause issue.
The Government argues that because Defendant did not argue in his opening
brief for plain error review, his claim is now waived. The Government also contends
any alleged Confrontation Clause issue is waived because Defendant affirmatively
stated he had no objection to the autopsy report and did not ask for a limiting
instruction. In addition, Defendant cross-examined Grey and Hail about the autopsy
report’s contents and never objected to the Government’s questions about the report.
In his reply brief, Defendant points to a Supreme Court decision issued prior
to his trial in which the court held that forensic lab reports containing a testimonial
certification of fact could not be introduced through the live testimony of another
16
At a motion hearing after trial, but before the district court issued its opinion
denying the Rule 29 motion on counts 1 and 2, the district court clearly stated
“[Frikke] was one of the four expert witnesses on the issue.” Aplt. App’x 402.
Rather than counter the district court’s statement, Defendant addressed the contents
of the autopsy report.
42
analyst who did not actually perform the test or sign the certification. Bullcoming
v. New Mexico, 131 S. Ct. 2705, 2713 (2011). Defendant argues that whether
autopsy reports fell under Bullcoming did not become clear until the Eleventh
Circuit’s decision in Ignasiak, where the court held Bullcoming prohibited the
admission of autopsy reports through a person other than the actual medical examiner
who had performed the autopsy. Ignasiak, 667 F.3d at 1231. Defendant argues we
should review this issue de novo because it presents a pure question of law premised
on legal precedent that did not exist at the time of trial. Alternatively, he argues the
autopsy report’s admission satisfies the requirements of plain error because the
report’s admission was clearly erroneous, and as the only “opinion” testimony that
supported the Government’s theory on causation as to count 1 and 2, substantially
prejudiced Defendant and resulted in manifest injustice.
We reject Defendant’s argument that he is entitled to relief because of an
intervening change in the law. Here, no change in the law occurred after
Defendant’s trial. The Supreme Court issued its opinion in Bullcoming in June 2011.
Defendant’s trial occurred in late July and early August, 2011. Defendant had the
opportunity to object to the admission of the autopsy report on the basis of
Bullcoming, as the defendant obviously did in Ignasiak. The district court then could
have ruled on the issue.
Defendant also argues in his reply brief that the district court committed plain
error in admitting the autopsy report. But the Government argues we cannot review
43
this forfeited claim because Defendant did not argue for plain error in his opening
brief. In this Circuit, “the failure to argue for plain error and its application on
appeal . . . surely marks the end of the road for an argument for reversal not first
presented to the district court.” United States v. Lamirand, 669 F.3d 1091, 1100 n.7
(10th Cir. 2012) (citing Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1127–28 (10th
Cir. 2011)). But at what point on appeal must an appellant argue for plain error and
its application? Fortunately we need not decide that issue today. 17 This is because,
even if we assume that error in fact occurred, Defendant cannot demonstrate that the
error affected his substantial rights. Cooper, 654 F.3d at 1117 (explaining the burden
is on the appellant to demonstrate an error, that is plain, affects his substantial rights,
17
Because the Government forcefully asserts so many of Defendant’s claims
cannot be heard on appeal, we note that Lamirand and Richison do not appear to be
inconsistent with our lengthy history of reviewing forfeited claims for plain error.
United States v. Teague, 443 F.3d 1310, 1314 (10th Cir. 2006). Rather than creating
a new procedural rule, these cases reenforced the principle that an appellant carries
the heavy burden of satisfying plain error. United States v. LaHue, 261 F.3d 993,
1009 (10th Cir. 2001). And if an appellant fails to satisfy that burden, we do not
develop a plain error argument for the appellant. United States v. DeChristopher,
695 F.3d 1082, 1091 (10th Cir. 2012). This is entirely consistent with our case
precedent and Federal Rule of Criminal Procedure 52(b), which allows us to consider
a plain error even though it was not brought to the district court’s attention. But is
the adversely affected party heard and the adversarial process served when we allow
a plain error argument for the first time in the reply brief? That the appellee has the
opportunity to provide why the appellant’s alleged error is not plain in its response
brief may suffice. The appellant may then argue in his reply brief why the error is
in fact plain. An appellant certainly would benefit from a more developed argument
if he acknowledged forfeiture in his opening brief, but we do not discount the
possibility that we may consider a plain error argument made for the first time in an
appellant’s reply brief.
44
and justice requires the error to be corrected). Without the admission of the autopsy
report, the jury still had sufficient evidence to find Defendant guilty on both counts
1 and 2 because of Hail’s testimony. Accordingly, under the plain error standard of
review, the district court did not err in admitting the autopsy report.
E.
Defendant next contends the Government failed to prove Wirick’s death was
a “reasonably foreseeable” consequence of Defendant’s prescribing the controlled
substances. Defendant posits the lone fact that he knew Wirick overdosed on
methadone in January 2006, only four months before his death, is not probative of
whether Wirick’s death was reasonably foreseeable. In addition, Defendant asserts
the district court failed to fully and adequately instruct the jury on proximate cause
and the definition of reasonable foreseeability, which confused the jury and left it to
decide what might be adequate proof.
We note other circuits have concluded Congress intended 21 U.S.C. § 841(b)’s
“resulting in death” language to “apply without regard to the principles of proximate
cause or the foreseeability of death or serious bodily injury.” United States v.
McIntosh, 236 F.3d 968, 972 (8th Cir. 2001); see also United States v. Patterson, 38
F.3d 139, 145 (4th Cir. 1994) (holding reasonable foreseeability is not an element
of § 841(b)); United States v. Robinson, 167 F.3d 824, 826 (3d Cir. 1999)
(concluding § 841(b) does not require proof that a defendant’s actions are the
proximate cause of a victim’s death.); United States v. Rebman, 226 F.3d 521, 522,
45
525 (6th Cir. 2000) (providing in dicta that the statute, on its face, “is, in effect, a
strict liability statute with respect to the injury or death of another arising out of the
distribution of drugs”), overruled on other grounds by United States v. Leachman,
309 F.3d 377, 385 n.9 (6th Cir. 2002); United States v. De La Cruz, 514 F.3d 121,
138 (1st Cir. 2008) (stating the Government does not need to prove foreseeability);
United States v. Houston, 406 F.3d 1121, 1122–23 (9th Cir. 2005) (concluding the
statute does not require the Government prove death was a foreseeable result);
United States v. Webb, 655 F.3d 1238, 1254 (11th Cir. 2011) (“the plain and
unambiguous language of [the statute] contains no foreseeability or proximate cause
requirement”); cf. United States v. Hatfield, 591 F.3d 945, 950–51 (7th Cir. 2010)
(expressing “some misgivings about interpreting ‘results from’ in the statute to
impose strict liability,” but not deciding the issue because the defendants did not
challenge the interpretation of the statute as imposing strict liability on them for
death or injury). Because the Government requested an instruction on reasonable
foreseeability, however, it was required to prove it. Romero, 136 F.3d at 1273. And
because of the posture of this case, we do not opine on whether § 841(b)’s language
contains a foreseeability or proximate cause requirement. Rather, we first address
whether the evidence presented at trial was sufficient to show Wirick’s death was a
“reasonably foreseeable” consequence of Defendant’s prescribing the controlled
substances before turning to the jury instruction on the standard for determining
whether Wirick’s death “resulted from” the medications Defendant prescribed.
46
1.
Defendant contends Wirick’s previous methadone overdose was irrelevant to
the question of whether Wirick’s death four months later was reasonably foreseeable
and says the Government presented no other evidence to support foreseeability.
Defendant argues Wirick never misused his opioid medications during the seven
years he treated Wirick. Defendant further asserts the methadone overdose was an
anomalous event that did not involve hydrocodone or oxycodone. Defendant points
to the differences between methadone on the one hand and hydrocodone and
oxycodone on the other. Defendant also points out that Dr. Bruce prescribed Wirick
opioids immediately following the January overdose. Defendant asserts that, by the
Government’s logic, every time Bruce prescribed to Wirick in the four months
following the overdose, Bruce should have reasonably foreseen that Wirick would
die from an overdose. Finally, Defendant argues his knowledge of the exclusive
agreement between Bruce and Wirick does not prove foreseeability.
At trial, the Government asked Defendant whether he was aware Wirick would
binge on his narcotics. Defendant stated he was not. But the jury saw notes from
Bruce in Wirick’s chart. Those notes indicate Wirick’s wife stated that Wirick
would take his medication in an inconsistent manner, often binging to the point of
falling off a toilet. Trial Tr., 130, August 16, 2011. Defendant admitted that the
notes were in his chart, but said he did not know Wirick would binge because he did
not read Bruce’s notes “word for word.” Id. The jury heard testimony that Wirick
47
attempted to obtain an early refill from another doctor in Bruce’s office, but that
doctor refused. Defendant saw Wirick in May even though Wirick was on
Defendant’s do not see list. Defendant said he agreed to see Wirick because Bruce
was out of town. Instead of prescribing a three-day prescription, the amount of time
Bruce was to remain out of town, Defendant wrote Wirick a thirty-day prescription
without contacting Bruce’s office. 18 Id. at 131. Based on the information in
Defendant’s chart showing that Wirick binged on his medication, the fact that Wirick
desired an early refill, and another doctor in Bruce’s practice would not prescribe
Wirick additional medication, the jury could reasonably conclude beyond a
reasonable doubt that Wirick’s death from Defendant’s prescriptions was reasonably
foreseeable.
2.
Defendant finds fault with two parts of the jury instructions. Defendant
asserts the district court did not fully inform the jury of the law regarding proximate
cause and argues the instruction caused confusion because the district court failed
to define “reasonably foreseeable consequence.”
Once again, the Government argues Defendant waived his challenge to the jury
18
Although Defendant testified he had prescribed Wirick a 30-day supply, he
now argues on appeal that he was mistaken because the DOPL report indicates that
he prescribed Wirick a 10-day supply of oxycodone and a 15-day supply of
hydrocodone. Aplt. App’x 12–13. Because Defendant testified as such, the jury
could consider his statement. We have no power to change the record to suit
Defendant’s recollection, which is not what he testified to at trial.
48
instructions. Jury instruction 22 instructed the jury on counts 1 and 2. At a motion
hearing on August 8, the district court requested the parties assist the court in
crafting the instruction, “[n]either of you gave me much by way of defining to the
jury what death resulting from the use of the drugs means. If you want to take your
hand at that, I would really appreciate it.” Appellee’s Supp. App’x vol. I, 165. The
court continued, “I was left with the feeling that the resulting from language should
be perhaps defined a little more, a little better for the jury.” Id. at 166. Four days
later, the district court mentioned to the parties that it had provided them with a set
of proposed instructions, including the two instructions for which it had asked for
help. The district court continued to ask for assistance: “I really would appreciate
some help on [instruction 22] as early as possible.” Trial Tr., 83, August 12, 2011.
After Defendant’s attorney asked for clarification, the district court responded: “If
you’re happy with the one we have got, then I am too. I just hope you take another
look at it from the eyes of a juror and ask does this make sense to me? If you’re both
happy with the language, the reasonably foreseeable standard, then I am.” Id. at 84.
Defendant forfeited this issue. The district court, on multiple occasions,
requested assistance in drafting the jury instruction at issue. Defendant’s failure to
object to the instruction, especially when invited by the district court to assist in the
drafting the instruction, results in forfeiture of the issue. Defendant did not argue
for the plain error standard in his opening brief or in his reply brief. Defendant has
forfeited his challenge to the jury instructions and we will not craft a plain error
49
argument for him on appeal. United States v. DeChristopher, 695 F.3d 1082, 1091
(10th Cir. 2012); see also United States v. McGlothin, 705 F.3d 1254, 1267 (10th
Cir. 2013) (concluding appellant forfeited argument on appeal where appellant did
not argue for the plain error standard in either of his briefs). Accordingly, we will
not review Defendant’s waived challenge to jury instruction 22.
IV.
Defendant next challenges the testimony or Dr. Hail, arguing the district court
erroneously permitted her to offer expert testimony. Pursuant to Federal Rule of
Evidence 702, a district court must “assess proffered expert testimony to ensure it
is both relevant and reliable.” United States v. Avitia-Guillen, 680 F.3d 1253, 1256
(10th Cir. 2012) (citing Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589
(1993)). The district court must “determine whether the expert is qualified by
knowledge, skill, experience, training, or education to render an opinion.” Id.(internal quotation marks omitted). Once the expert is deemed sufficiently qualified,
then “the court must determine whether the expert’s opinion is reliable by assessing
the underlying reasoning and methodology.” Id. The district court “must adequately
demonstrate by specific findings on the record that it has performed its duty as a
gatekeeper” when faced with a party’s objection. Id. Defendant correctly notes we
usually review de novo whether the district court applied the proper standard in
admitting expert testimony. Id. But where “a party fails entirely to object to expert
testimony at or before trial, we review only for plain error.” Id.50
Defendant first challenges Hail’s qualifications, asserting that Hail lacked
expertise to meaningfully review all of the materials to make a cause of death
determination because she is a toxicologist rather than a forensic pathologist.
Second, Defendant challenges the methodology Hail used to reach her opinion.
Defendant posits Hail’s opinions cast serious doubt on whether she based them on
a review of the autopsy report or on “subjective belief and unsupported speculation.”
Third, Defendant contends the district court improperly allowed Hail to give a legal
opinion and testify to an ultimate issue: that Wirick’s death resulted from the use of
controlled substances.
Once again, the Government asserts Defendant waived this issue on appeal
because Defendant did not object below and does not argue plain error on appeal.
Additionally, the Government argues the Federal Rules of Evidence allow an expert
to testify on an ultimate issue and, as a board certified toxicologist, Hail possessed
the necessary training and experience to opine on the relationship between the drugs
and Wirick’s death. In his reply brief, rather than argue for plain error review,
Defendant asserts his belief that de novo review applies because he “actually made
these arguments on several occasions” and “challenged Dr. Hail’s qualifications and
methodology extensively on cross-examination and later in his Rule 29 Motion.”
To determine whether Defendant objected to Hail’s qualifications and
methodology, we again turn to the record. On August 1, the day before the
Government called Hail to testify, the parties gathered in the district court judge’s
51
chambers to address objections. Defendant started out by arguing “it is my
recollection that the government represented that [Hail] was not going to testify to
the cause of death, but because she is going to be testifying to the cause of death, we
believe it is cumulative . . . .” Aplt. App’x 344. Specifically, Defendant believed
Hail’s testimony would be cumulative to Dr. Grey’s testimony. Id. at 346.
Defendant argued Hail’s testimony would be “almost verbatim the exact language
that is contained in the autopsy report . . . that the combination of those two drugs
was the cause of death.” Id. Defendant also argued Hail’s testimony would be
cumulative to Dr. Hare’s testimony regarding the composition of drugs and their
interaction with one another. Id. at 350. At the hearing, the district court ruled that
Hail’s testimony would not be cumulative to either doctor. The district court
reasoned that Hail would testify that the pneumonia did not contribute to the death,
whereas Grey would testify that it did contribute. Hare did not offer an opinion as
to how the drugs that Wirick took interacted in connection with his death. But, the
district court stated it would be inclined to sustain an objection of cumulativeness
if Hail simply parroted another expert. The district court advised Defendant: “So be
ready for both of them.” Id. at 352.
The next day at trial, Defendant first objected to the Government asking
“Doctor, could you describe the purpose of opioids?” Trial Tr., 151, August 2, 2011.
Defendant believed the question would lead to testimony cumulative to Hare’s
testimony. Next, Defendant objected to Hail’s partial answer to the question of
52
“What’s a benzo?” Defendant objected to the narrative, stating Hail had moved on
to other areas. Id. at 153. The Government proceeded to ask Hail what a
“synergistic” effect was. Defendant objected, stating that the jury had heard about
this topic from Grey earlier in the day. Id. Once Hail began talking about blood
taken from the heart, Defendant objected to testimony regarding “heart blood”
because it would be the third time it was discussed. Id. at 164. Defendant next
objected to a question asking Hail if she knew how many pills Wirick consumed
between May 3 and May 6. When Hail responded she did not memorize how many
were missing, Defendant stated the question called for speculation unless she had a
foundation that she was with Wirick when he took the pills. Id. at 167. Finally, on
cross examination, Defendant asked Hail whether she had any formal training in
pathology. Id. at 170. Hail stated she did not. Defendant also asked whether she
examined the slides that went along with the autopsy report. Id. at 174. She stated
she had not because she read the autopsy report.
We must note two important instances where Defendant did not object. First,
the Government offered Hail as an expert in emergency medicine and toxicology.
Trial Tr., 145, August 2, 2011. Defendant did not object. The district court stated,
“Okay. Proceed with your next question. I usually don’t do anything to qualify
experts.” Id. Second, the Government asked Hail, “Based upon your review of all
this information that you gathered concerning David Wirick’s death, did you form
an opinion that his drug use resulted in death?” Id. at 160. Hail answered “yes.”
53
Id. The Government then asked “What is your opinion.” Id. Defendant, again, did
not object.
In support of his argument that he objected, Defendant also points to his
memorandum in support of his motion for judgment of acquittal in which he cited
Hail’s testimony that she did not review the microscopic slides of Wirick’s lungs or
heart tissue and that she would not know what she was looking at in the slides
because she is not a pathologist. Aplt. App’x 150. Defendant also cited her
testimony that the combination of one oxycodone, one hydrocodone and one Valium
could cause death and that she disagreed that pneumonia was a contributing factor
in Wirick’s death because people seek out medical attention when they have
pneumonia. Id. A close examination of Defendant’s argument in his Rule 29 motion
shows, however, that he did not challenge the district court’s gatekeeping function.
In discussing why he believed the evidence to be insufficient, Defendant referenced
the “expert” opinion of Hail, arguing this “other” expert weakened Frikke’s opinion
about the cause of death. Id. at 155. Lastly, Defendant brings our attention to the
post-trial motion hearing on Defendant’s motion for judgment of acquittal on counts
1 and 2. At that hearing, Defendant argued Hail’s testimony was the only testimony
that could lead anybody to believe that Wirick’s blood toxicity level was outside of
a therapeutic level. Defendant asserted:
Dr. Hail’s explanation is completely irrational and completely
ridiculous, because what she really said was one pill, the combination
of Oxycodone, Hydrocodone and Valium . . . one pill would kill you.
54
She said even more. She said I didn’t care about the therapeutic levels,
because her opinion was that [] kills you. That therapeutic dosage of
that one pill and those three medications kills you. . . . She is
completely contradicted by the evidence. . . . Moreover, Dr. Hail . . .
was the only one that said . . . the wonderfully interesting expert
opinion that the reason why he didn’t die from pneumonia is because
people who have pneumonia only die in hospitals.
Aplt. App’x 400–01.
Our detailed record review reveals that Defendant never challenged Hail’s
qualifications or methodology. At trial, Defendant objected to what he believed to
be cumulative testimony, a narrative answer, and an answer based on speculation.
But notably absent during the Government’s direct examination of Hail is an
objection to the district court qualifying Hail as an expert or her qualifications or
methodology. During cross examination, Defendant questioned Hail’s qualifications
and questioned her methodology, but never suggested the jury could not consider her
testimony to be that of an expert. Questioning an expert about her methodology and
qualifications on cross examination is not the same as objecting to her being
qualified as an expert. Defendant did not make a belated objection to Hail’s
qualifications as an expert during his cross examination. Juries often hear dueling
expert testimony, and in this case, the jury chose to credit Hail’s testimony.
After trial, in both his memorandum and at the motion hearing, Defendant
questioned Hail’s methodology and qualification to give expert testimony because
she was not a pathologist. But Defendant did not challenge the district court’s
decision to allow Hail to give expert testimony. Rather he argued a pathologist,
55
instead of a toxicologist, would be the appropriate person to provide testimony as to
cause of death and that no reasonable jury could accept Hail’s testimony. This
argument does not go to Hail’s fitness to testify as an expert, but to the sufficiency
of the evidence to convict Defendant on Counts 1 and 2.
Rather than alternatively argue for plain error in his reply brief, Defendant
asserts he objected on the basis of cumulativeness and that “resulting in death” and
“cause of death” were the same. Based on our record review, we agree with
Defendant that he objected based on cumulativeness and asserted that the “resulting
in death” and “cause of death” terminology represented a “distinction without a
difference,” but Defendant did not object to Hail’s testimony for the reasons he
articulates on appeal. Our case law routinely reviews these forfeited claims for plain
error. Avitia-Guillen, 680 F.3d at 1256. But we also know that we do not craft plain
error arguments for appellants on appeal. DeChristopher, 695 F.3d at 1091. We
easily identify the quagmire: What is the extent of an appellant’s burden to
demonstrate plain error? Need he only provide us the facts on which we could find
plain error or does he need to provide us an argument incorporating the correct legal
standard? These are certainly interesting questions, but this case is not the proper
vehicle to decide the issue. For in this case, the district court’s decision to qualify
Hail as an expert and allow the jury to consider her testimony does not rise to plain
error.
Furthermore, because Defendant did not object to Hail’s methodology or
56
qualifications, the district court was not required to make explicit findings. Avitia-
Guillen, 680 F.3d at 1260. “So we are left to look only for some obvious error in
the court’s implicit finding that [Hail’s] methods were reliable” and Hail was
qualified to testify as an expert. Id. The district court heard Hail testify she is board
certified in toxicology, a lecturer to residents, medical students, and pharmacologists
doing a rotation in medical toxicology, and an author of articles in textbooks. Trial
Tr., 141–42, August 2, 2011. Hail testified toxicology is the study of poisons and
that as a toxicologist, she treats overdoses and directs other doctors on how to
manage overdoses. Id. at 137, 139–40. Hail admitted she was not a pathologist,
which is why she did not review the autopsy slides. Instead, she offered an opinion
on the drugs in Wirick’s system. Nothing in the record indicated Hail lacked the
necessary training and experience to provide testimony on the relationship between
drugs or poisons and Wirick’s death. 19 The district court did not plainly err in its
implicit determination that Hail’s testimony was based on “reliable principles and
methods” that were “reliably applied.” Fed. R. Evid. 702(c), (d).
To the extent Defendant challenges the district court’s reliance on Hail’s
expert testimony in ruling on his Rule 29 motion, we disagree with Defendant’s
19
Defendant contends that even if Hail had been properly qualified to opine
as to Wirick’s cause of death, the district court should have nonetheless excluded her
testimony as cumulative to Grey’s. This argument, of course, is incorrect. As noted
by Defendant, only Hail completely excluded pneumonia as a factor in Wirick’s
death.
57
position. The district court allowed, with no objection, Hail to testify as an expert
on toxicology. The jury could reasonably rely on her testimony as a board certified
toxicologist. Defendant had the opportunity to question Hail and to present his own
expert to the jury. Defendant also had the opportunity to counter Hail’s testimony
that a toxic level does not exist through other experts. The jury heard the evidence
and made a rational decision based on the testimony presented at trial.
Defendant also argues the district court improperly allowed Hail to give a legal
opinion and testify to an ultimate issue, specifically, that Wirick’s death resulted
from or, in other words, Wirick’s cause of death was because of, controlled
substances. Again, because Defendant did not object to Hail’s use of the phrase
“cause of death” or “death resulted from” at trial, we review his claim for plain
error. 20 United States v. Schneider, 704 F.3d 1287, 1293 (10th Cir. 2013). Federal
Rule of Evidence 704(a) allows “an expert to opine on an ‘ultimate issue’ to be
decided by the trier of fact.” Schneider, 704 F.3d at 1293 (testifying doctor opined
that the defendant had engaged in health care fraud resulting in death). That expert,
however, must explain the basis for her opinion and not “simply tell the jury what
result it should reach.” Id. In this case, Hail did not tell the jury Defendant was
20
Defendant did not object because Hail was going to testify as to an ultimate
issue. The objection was based on the cumulativeness of the testimony to that of Dr.
Grey and the autopsy report. Not only did Defendant fail to object to this line of
questioning, Defendant asked questions using the phrase “cause of death” on Hail’s
cross examination. Trial Tr., 180, August 2, 2011 (“Valium in Mr. Wirick’s system
is significant, is it not, when you are talking about the cause of death?”).
58
guilty. Instead, she explained her observation based on the evidence in the case.
Accordingly, we find no error at all in the district court’s admission of Hail’s
testimony regarding Wirick’s cause of death.
V.
Defendant next asserts the district court committed prejudicial error in
admitting Government Exhibit 133, a compilation of charts showing the annual
rankings of Utah’s top ten issuers of hydrocodone and oxycodone prescriptions from
2005 through 2009. The charts reveal Defendant wrote the largest number of
hydrocodone prescriptions in Utah from 2005 through 2008. In 2009, Defendant
ranked third. Defendant was the seventh highest issuer of oxycodone prescriptions
in 2005, fourth in 2006, 2007, and 2009, and second in 2008. Defendant contends
this information was not relevant and any probative value was substantially
outweighed by its unfairly prejudicial impact and risk of confusing and misleading
the jury. Defendant asks for a new trial based on the admission of this exhibit.
At trial, the district court engaged in a lengthy discussion with counsel
regarding the exhibit. The Government essentially argued Defendant “opened the
door” to the admission of Exhibit 133 by raising the subject in his opening statement
when he asserted he practiced in a small town—“his community”—and he did not
want people suffering from chronic pain to have to travel to Logan, Ogden, or Salt
Lake City. Trial Tr., 47, July 20, 2011. The Government desired to respond to this
argument by pointing out Defendant was the number one provider in the entire state.
59
Trial Tr., 102, July 21, 2011. The district court understood and acknowledged the
potential Rule 403 problem: “The unfair prejudice would come from the jury
jumping to the conclusion . . . if he is the biggest provider of this drug in the state
. . . then he must be guilty. . . . he must be bad.” Id. at 104. The district court
further told the Government: “You’re accusing him because he is the number one
provider of hydrocodone in the state, that he must be prescribing it not for legitimate
medical purposes.” Id. at 105. The court pressed the Government: “Do you agree
that the reason or the main aspect of the evidence that you want to come in is his
ranking? . . . Is that the most important aspect of it?” Id. at 106–07. The
Government responded, “I think so. It is the volume compared to the rest of the
state.” Id. at 107. After hearing from the parties, the district court said the
Government’s best argument was that Exhibit 133 should be admitted in response to
Defendant’s opening statement depicting Defendant as a one-doctor practice who did
not want “folks” in his community to travel to receive treatment for chronic pain.
Id. at 109. Ultimately, the district court allowed the testimony for the reasons
articulated by the Government and explicitly stated that the probative value was not
substantially outweighed by the danger of unfair prejudice. Id. at 114.
A district court may generally admit relevant evidence. Fed. R. Evid. 402.
Rule 403, however, allows a district court to exclude relevant evidence if its
probative value “is substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading the jury, undue delay,
60
wasting time, or needlessly presenting cumulative evidence.” Fed. R. Evid. 403. “In
determining whether evidence is properly admitted under Rule 403, we consider (1)
whether the evidence was relevant, (2) whether it had the potential to unfairly
prejudice the defendant, and (3) whether its probative value was substantially
outweighed by the danger of unfair prejudice.” United States v. Cerno, 529 F.3d
926, 933 (10th Cir. 2008). Our abuse of discretion review “affords the district court
considerable discretion in performing the Rule 403 balancing test” because “district
court judges have front-row seats during trial and extensive experience ruling on
evidentiary issues.” Id. at 935–36 (internal quotation marks omitted).
We first address relevance. The district court ruled the exhibit was relevant
because, if admitted, the exhibit would have an impact on the trial. We agree the
exhibit was relevant. The Government charged Defendant with unlawful distribution
of hydrocodone and oxycodone. The Government had to prove Defendant stepped
outside his role as a doctor and became a criminal drug pusher. The charts certainly
painted a picture of Defendant’s practice as a pain management physician.
Moreover, “a party who raises a subject in an opening statement ‘opens the door’ to
admission of evidence on that same subject by the opposing party.” United States
v. Chavez, 229 F.3d 946, 952 (10th Cir. 2000). Defendant explained why his
practice shifted to pain management in his opening statement—he did not want to see
members of his community travel to other parts of the state to receive treatment for
pain. Exhibit 133 is relevant in light of this statement.
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We acknowledge the possibility that the admission of the exhibit unfairly
prejudiced Defendant. “Evidence is unfairly prejudicial if it makes a conviction
more likely because it provokes an emotional response in the jury or otherwise tends
to affect adversely the jury’s attitude toward the defendant wholly apart from its
judgment as to his guilt or innocence of the crime charged.” United States v.
Leonard, 439 F.3d 648, 652 (10th Cir. 2006) (internal quotation marks omitted). As
mentioned above, the district court expressed concern that admission of Exhibit 133
could lead the jury to base its decision of guilt or innocence not on whether
Defendant unlawfully prescribed to each of the indictment patients, but instead on
Defendant’s ranking as the number one physician prescribing hydrocodone in Utah.
By allowing the jury to hear testimony regarding Exhibit 133, the district court
created a risk that the jury’s decision would be improperly affected by the fact that
Defendant prescribed so many opioid prescriptions. The district court acknowledged
the possibility that the jury could be confused by the admission of the chart and
believe that because Defendant was the number one provider of hydrocodone in
Utah, he must be prescribing hydrocodone not for a legitimate medical purpose to
the indictment patients. Although the exhibit was undoubtedly prejudicial, that alone
“does not necessarily get the defendant over his evidentiary hurdle.” Cerno, 529
F.3d at 935.
Finally, we consider whether the district court abused its discretion in
concluding that the probative value of the exhibit was not substantially outweighed
62
by the risk of unfair prejudice. “Under Rule 403’s balancing test, it is not enough
that the risk of unfair prejudice be greater than the probative value of the evidence;
the danger of that prejudice must substantially outweigh the evidence’s probative
value.” Id. at 935. In balancing, we “give the evidence its maximum reasonable
probative force and its minimum reasonable prejudicial value.” Id.Defendant directs us to United States v. Jones, 570 F.2d 765 (8th Cir. 1978).
In Jones, the defendant physician appealed a conviction for distributing a Schedule
II controlled substance without a legitimate medical purpose and outside the usual
course of professional practice. The Government indicted Defendant on two counts
only. The jury convicted Jones of one count, but acquitted him on the other. To
buttress its case against Jones, the Government introduced 478 prescriptions issued
to patients over a 20-month time period. The Eighth Circuit concluded the evidence
was relevant, but should have been excluded under Rule 403. Id. at 768. The court
stated:
[T]he Government sought to imply wrongdoing on the physician’s part
from the quantity of the prescriptions . . . . The evidence lacked
substantial probative force upon the issue of improper medical practice
in the transactions charged, yet it could have led the jury to speculate
that the quantity of prescriptions alone established wrongful conduct by
Dr. Jones.
Id. at 769.
The Government distinguishes Jones by arguing the evidence in this case
relates to Defendant’s ranking in connection with drugs that were charged in the
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indictment and the exhibit did not include information for years outside of the
charged crimes. The Government cites two out of circuit cases. In United States v.
Merrill, 513 F.3d 1293, 1303 (11th Cir. 2008), the Eleventh Circuit said, “A jury
may consider prescription data sets outside those specifically charged in the
indictment to determine whether a physician has exceeded the legitimate bounds of
medical practice and as evidence of a plan, design, or scheme.” (internal quotation
marks omitted). Similarly, in United States v. Harrison, 651 F.2d 353, 355 (5th Cir.
1981), the Fifth Circuit held that the jury was not limited to considering only charged
prescriptions in considering whether the defendant exceeded the legitimate bounds
of medical practice. The court concluded “[p]rescriptions issued at other times were
admissible as evidence of plan, design or scheme.” Id.The cases cited by the Government are inapplicable in this case. The Fifth
Circuit’s conclusion in Harrison that the other prescriptions were admissible was not
based on Rule 403 balancing. Rather, it appears to be based on Rule 404(b), which
prohibits evidence of other acts “to prove a person’s character in order to show that
on a particular occasion the person acted in accordance with the character.” Fed. R.
Evid. 404(b)(1). The Rules, however, allow evidence of other acts for another
purpose, such as proving “plan.” Fed. R. Evid. 404(b)(2). In this case, Defendant
did not object based on Rule 404(b) and likewise did not raise the issue on appeal.
Merrill, however, did involve an objection based on Rule 403. But the
Government’s quote from Merrill involved analysis regarding Rule 404(b). As to
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Rule 403, the court pointed out that in addition to charging the defendant physician
in Merrill with unlawful prescribing, the Government also charged the defendant
with devising a scheme to defraud Medicaid and other insurance providers. Merrill,
513 F.3d at 1301. And, as part of that scheme, the Government alleged the defendant
prescribed excessive and inappropriate quantities and combinations of controlled
substances to patients outside the usual course of professional practice. In its Rule
403 balancing analysis, the court stated that the summary of other prescriptions was
relevant to prove the defendant prescribed excessive and inappropriate quantities and
combinations of controlled substances and that in doing so he acted outside the usual
course of professional practice. The court noted the only way the Government could
prove this part of the scheme was to present evidence on the quantities themselves
and then comparing those quantities to the relevant norm. The court also stated the
summary was relevant because it raised an inference of excessiveness and
impropriety and because the number of drugs being prescribed to each patient and
the combination of drugs being prescribed to each patient raised an inference of
inappropriate and excessive conduct. Because, in this case, the Government did not
have to prove a scheme to defraud involving excessive amounts of drugs, Merrill is
inapposite.
Likewise, this case is not analogous to Jones, but for reasons other than those
the Government listed in its brief. Unlike the defendant in Jones, Defendant “opened
the door” to the admission of Exhibit 133. We stress that this is a close question, but
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we do not decide it in the first instance. Under the applicable standard of review, we
ask only whether the district court abused its discretion. Although we agree with the
reasoning of the Eighth Circuit and believe that, under the Eighth Circuit’s facts, the
probative value of an exhibit like Exhibit 133 would have been substantially
outweighed by the danger of unfair prejudice, we believe the district court did not
abuse its discretion in admitting Exhibit 133 under the facts of this case. 21
Obviously, Defendant’s opening the door makes the exhibit no less prejudicial and
capable of misleading the jury. But the opening of the door in the opening statement
makes Exhibit 133 more probative. Defendant made his statement about why his
practice shifted from orthopedic surgery to pain management in his opening
statement. During the exchange with the judge regarding admission of Exhibit 133,
Defendant characterized his opening statement in the following manner:
21
Even if the district court had erred in admitting Exhibit 133, the error was
harmless. We render judgment “after an examination of the record without regard
to errors or defects which do not affect the substantial rights of the parties.” 28
U.S.C. § 2111; see also Fed. R. Crim. P. 52(a) (“Any error, defect, irregularity, or
variance that does not affect substantial rights must be disregarded.”). A district
court’s “decision whether to admit or exclude evidence, is considered harmless
unless a substantial right of a party is affected.” United States v. Charley, 189 F.3d
1251, 1270 (10th Cir. 1999) (internal quotation marks and brackets omitted). “An
error affects the substantial rights of a party if it had a substantial influence on the
outcome or which leaves one in grave doubt, as to whether it had such effect.”
United States v. Espinoza, 244 F.3d 1234, 1240 (10th Cir. 2001) (internal quotation
marks and brackets omitted). In conducting this analysis, we review the record as
a whole. Id. at 1241. After examining the totality of the record, our above
discussion concludes the jury had sufficient evidence to convict Defendant on each
count without considering Exhibit 133.
66
“[W]hat I said was Dr. MacKay[,] because of the community that he
was in, and the fact that he didn’t want folks to go far away, and he had
these chronic pain patients that he thought it was appropriate to
continue to treat them. That is what I said. It may very well be that if
you treat that geographic basis in Box Elder County, you may very well
be number one. I don’t think anyone really knows that. . . . Who knows
what it means. I really think that that is exactly where we’re going to
be that he is number one, therefore, he is guilty.
Trial Tr., 110–11, July 21, 2011. Even with Defendant’s “clarification” of his
opening statement, Defendant placed in issue his role as a doctor to the community
of Box Elder County. Because of the additional probative value of the exhibit from
Defendant’s opening statement, we cannot hold the district court abused its
discretion in conducting its Rule 403 analysis.
VI.
Defendant next asserts his 20-year sentence violates the Eighth Amendment’s
guarantee not to be subject to excessive sanctions because the harshness of the
penalty outweighs the gravity of the offense. Defendant’s reasoning, however, is
best described as a Fifth Amendment due process argument. Defendant contends the
Controlled Substances Act provides for “radically different penalties” for identical
conduct, dependent only on the schedule of the unlawfully prescribed drug. This is
because both hydrocodone and oxycodone in their “pure forms” are Schedule II
drugs, but hydrocodone “mixtures,” such as Lortab (hydrocodone and
acetaminophen), are Schedule III drugs. No similar provision exists for oxycodone
mixtures. In application, Defendant’s conviction on count 1, for the oxycodone
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mixture, a Schedule II drug, mandates a mandatory minimum sentence of 20 years.
21 U.S.C. § 841(b)(1)(C). But Defendant’s conviction on count 2, for the
hydrocodone mixture, a Schedule III drug, carries no mandatory minimum sentence,
but instead has a maximum sentence of 15 years. 21 U.S.C. § 841(b)(1)(E)(i).
Defendant argues the disparate scheduling between hydrocodone mixtures and
oxycodone mixtures is arbitrary and creates nonsensical sentencing disparities.
Defendant argues the Controlled Substances Act’s legislative history and the relative
case law do not reveal any rational explanation as to why a physician convicted of
unlawfully prescribing an oxycodone mixture has committed a substantially more
egregious crime than a physician convicted of unlawfully prescribing a hydrocodone
mixture.
Unsurprisingly, the Government argues waiver. First, the Government asserts
Defendant’s Eighth Amendment argument is inadequately briefed, and we should not
consider it. Second, the Government notes, to the extent Defendant contends a Fifth
Amendment due process violation occurred, the argument on appeal is different from
his due process argument to the district court. Because the argument is allegedly
different, and because Defendant does not argue for plain error on appeal, the
Government argues we should not consider the matter.
The Government correctly states Defendant did not raise either the Eighth
Amendment issue or the Fifth Amendment issue in his Rule 29 motion. Two days
before sentencing, Defendant filed a document entitled “position of party with
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respect to sentencing factors.” Appellee’s Supp. App’x Vol. I, 109. Defendant
raised, for the first time, four reasons why 21 U.S.C. § 841 is unconstitutional as
applied. Id. at 114. One argument asserted § 841(b)(1)(C)’s mandatory minimum
sentence violates the Eighth Amendment because the 20 year sentence is
disproportionate to the crime committed. Another of those arguments was that the
statute violates the Fifth Amendment by making an arbitrary and irrational
distinction between oxycodone and hydrocodone. Id. at 116. Defendant argued
hydrocodone and oxycodone are substantially similar drugs, used for the same
purposes, and cause similar effects. Id.
At the sentencing hearing, the district court pointed out to Defendant that he
had not previously argued the disparity between the hydrocodone and oxycodone
made the Controlled Substance Act unconstitutional as applied to him. Defendant’s
counsel responded, “[t]hat’s true, Your Honor.” Id. at 210. The district court stated
Defendant’s argument “renews a request that [the district court] grant [Defendant’s]
motion for a judgment of acquittal on Counts 1 and 2.” Id. The court said that it had
previously ruled on the motion, without having the benefit of seeing Defendant’s
new arguments. Defendant responded he did not have a reason “to advance further
legal argument with respect to . . . the rationality that Congress drew between
hydrocodone and oxycodone with respect to the disparity of the sentences that are
required with respect to Count 2 as opposed to the minimum mandatory of Count 1.”
Id. at 210–11. Defendant stated he did not want to advance new arguments until the
69
district court ruled on the Rule 29 motion. The district court then expressed concern
that Defendant began his sentencing argument acknowledging the district court has
no discretion under the statute, but “later [Defendant will] say [the district court]
rejected [his new] arguments, and then [Defendant will] raise that up with the Court
of Appeals as if [the district court] had time to address them.” Id. at 211.
Perceptive. Despite this reservation, the district court allowed Defendant to address
the new arguments. Defendant’s counsel then stated,
“I was going to attempt to address them, but I really do think that we
are in a position where the minimum mandatory right now is the point
of the realm in light of the Court’s ruling. And I think that that is really
a sentence that very few people in this courtroom think is proportionate
when you consider the nature of the situation we have here and the
realities of [Defendant] as a human being. . . . And the question of the
Eighth Amendment is proportionality. . . . We believe that a 20-year
sentence in this case is essentially a death sentence for [Defendant],
could not possibly be proportionate given all the circumstances and
facts of this particular criminal case. . . . Moreover, as the Court well
knows, the other argument was that if [Defendant] had not prescribed
Percocet for Mr. Wirick, then the Court would be put in the position
where there would be no application of the minimum mandatory. And
the maximum under Lortab or hydrocodone is up to 15 years. There is
no rational distinction that I think medically you can make, politically
you could make, societally you could make between Lortab and
Percocet when it comes to prescribing. That’s irrational use of
legislative power, which we suggest is a violation of equal protection
....
Id. at 212, 214–15, 217.
The district court never ruled explicitly on the new arguments. The district
court referenced the statute, then stated, “I have no discretion here. The sentence is
20 years imprisonment . . . . Congress has imposed this law, not me.” Id. at 262.
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Although Defendant does not explicitly argue in his opening brief that a due
process violation occurred, he does renew both his Fifth Amendment and Eighth
Amendment argument under the same heading. And after reviewing the record, the
Government’s argument that Defendant waived the argument on appeal is patently
incorrect. As to the Fifth Amendment, to the district court, Defendant argued the
Controlled Substances Act was unconstitutional as applied because he prescribed
Lortab, a Schedule III substance, and Percocet, a Schedule II substance. Defendant
argued those drugs are essentially the same, yet have irrationally different penalties.
On appeal, Defendant refined his argument to specify that hydrocodone mixtures are
Schedule III substances and oxycodone mixtures are Schedule II substances.
Although Defendant improved his terminology on appeal, Defendant’s as
applied challenge to the statute has not changed. As to the Eighth Amendment,
Defendant argues his sentence violates that amendment’s guarantee not to be subject
to excessive sanctions because the harshness of the penalty outweighs the gravity of
the offense.
The actual waiver question before us is whether Defendant waived his Eighth
Amendment and Fifth Amendment arguments when he stated, “I was going to
attempt to address them, but I really do think that we are in a position where the
minimum mandatory right now is the point of the realm in light of the Court’s
ruling.” In light of the district court’s decision not to rule on the new arguments,
perhaps the district court thought Defendant conceded the argument. But out of an
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abundance of caution, we will first review Defendant’s Eighth Amendment issue
before addressing Defendant’s Fifth Amendment issue.
A.
In this Circuit, “[i]n general, a sentence within the limits imposed by statute
is neither excessive nor cruel and unusual under the Eighth Amendment.” United
States v. Delacruz-Soto, 414 F.3d 1158, 1168 (10th Cir. 2005). Here, Defendant’s
sentence of 20 years was at the statutory minimum. Moreover, Defendant’s sentence
was below the advisory Guideline range of 292–365 months—“a range that defines
the national norm for sentencing for this particular crime.” Id. In this case, the
Government prosecuted Defendant for stepping out of his role as a doctor, becoming
a criminal drug dealer, and prescribing a controlled substance that resulted in
Wirick’s death. The sentence on count 1 “does not resemble the sentences of
disproportionate severity that courts have struck down as cruel and unusual in the
past.” Id. (citing Weems v. United States, 217 U.S. 349, 358, 364, 381 (1910)
(discussing sentence of 15 years at hard labor for falsifying a government form)).
Accordingly, we conclude Defendant’s sentence was not excessive and does not
violate the Eighth Amendment’s prohibition on cruel and unusual punishment.
B.
Having determined the district court did not impose a sentence in violation of
the Eighth Amendment, we now turn to whether it imposed a sentence in violation
of the Fifth Amendment’s Due Process Clause. When Congress enacted the
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Controlled Substances Act, it established five schedules of controlled substances.
Congress empowered the Attorney General to move a substance from one schedule
to another schedule and to add or remove substances from the schedules. 21 U.S.C.
§ 811(a). The Attorney General must follow specified procedures when adding a
substance to a schedule.
First, the Attorney General must request a scientific and medical
evaluation from the Secretary of Health and Human Services (HHS),
together with a recommendation as to whether the substance should be
controlled. A substance cannot be scheduled if the Secretary
recommends against it. § 201(b), 21 U.S.C. § 811(b). Second, the
Attorney General must consider eight factors with respect to the
substance, including its potential for abuse, scientific evidence of its
pharmacological effect, its psychic or physiological dependence
liability, and whether the substance is an immediate precursor of a
substance already controlled. § 201(c), 21 U.S.C. § 811(c). Third, the
Attorney General must comply with the notice-and-hearing provisions
of the Administrative Procedure Act (APA), 5 U.S.C. §§ 551–559,
which permit comment by interested parties. § 201(a), 21 U.S.C.
§ 811(a). In addition, the Act permits any aggrieved person to
challenge the scheduling of a substance by the Attorney General in a
court of appeals. § 507, 21 U.S.C. § 877.
Touby v. United States, 500 U.S. 160, 162–63 (1991). We normally will not set
aside a legislative classification “if any state of facts rationally justifying it is
demonstrated to or perceived by the courts.” United States v. Szycher, 585 F.2d 443,
445 (10th Cir. 1978). And the Controlled Substances Act directly affects the health
and safety of American citizens. The record before us on this issue is thin. Rather
than explain how the Attorney General made an irrational decision in scheduling the
drugs, Defendant simply states “[t]he CSA’s legislative history and the relevant case
73
law do not reveal any rational explanation for which a physician convicted of
unlawfully prescribing Percocet has committed a sufficiently more egregious crime
than a physician convicted of unlawfully prescribing Lortab, to justify a mandatory
20-year prison sentence.” (internal footnote omitted). We simply cannot say the
Attorney General acted irrationally on this record.
VII.
Finally, for the first time on appeal, Defendant alleges the district court
committed error when it sentenced him to a general 240-month sentence of
imprisonment, rather than specifying individual sentences for each offense. Nine of
Defendant’s counts of conviction have a maximum statutory term of imprisonment
below the 240 month statutory minimum term of imprisonment for count 1.
Defendant believes his sentence is illegal because the district court may have
imposed a sentence on counts 2, 4–7, 15–17, and 108 that exceeds the statutory
maximum. Ordinarily, we review a challenge to the legality of a sentence de novo.
United States v. Jones, 235 F.3d 1231, 1235 (10th Cir. 2000). But because
Defendant raises this issue for the first time on appeal, we review for plain error.
Defendant’s sentence was governed by 2011 United States Sentencing
Guideline § 5G1.2(b), which states that “the sentence imposed on each other count
shall be the total punishment.” Section 5G1.2(c) provides that “[i]f the sentence
imposed on the count carrying the highest statutory maximum is adequate to achieve
the total punishment, then the sentences on all counts shall run concurrently, except
74
to the extent otherwise required by law.” So, what happens where the total
punishment exceeds the statutory maximum on some counts of conviction? The
application notes provide guidance:
Usually, at least one of the counts will have a statutory maximum
adequate to permit imposition of the total punishment as the sentence
on that count. The sentence on each of the other counts will then be set
at the lesser of the total punishment and the applicable statutory
maximum, and be made to run concurrently with all or part of the
longest sentence.
U.S. Sentencing Guideline Manuel § 5G1.2 cmt. n.1 (2011). The 240-month total
sentence is problematic only for counts 2, 4–7, 15–17, and 108. But did the district
court plainly err by failing to impose a sentence on each count? A district court
imposes an illegal sentence when it sentences a defendant to a term of incarceration
that exceeds the statutory maximum. United States v. Gonzalez-Huerta, 403 F.3d
727, 739 n.10 (10th Cir. 2005). Such an illegal sentence triggers “per se, reversible,
plain error.” Id. In this case, the district court announced at sentencing that
Defendant would serve a term of imprisonment of 240 months, a total sentence
below the advisory guideline range, but yet exceeded the statutory maximum
sentence on nine counts. We could easily assume from the Guidelines that the
district court sentenced Defendant to 240 months on counts 1, 8–14, 18–26, 32–35,
41–42, 81–84, 120–121, and 123–124; that he sentenced Defendant to 180 months
on count 2; 120 months on counts 4–7 and 108; and 48 months on counts 15–17.
And we could further assume that the sentences were imposed to run concurrently.
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But the judgment is unclear whether the district court intended to impose a 240-
month sentence on each count, a clearly illegal sentence. 22 See e.g. United States v.
Ward, 626 F.3d 179, 184 (3d Cir. 2010); United States v. Cummings, 395 F.3d 392,
400 (7th Cir. 2005); United States v. Woodard, 938 F.2d 1255, 1257 (11th Cir.
1991). Accordingly, a limited remand is necessary to allow the district court to
clarify the sentence for the record.
AFFIRMED IN PART and REMANDED for resentencing.
22
The district court stated the sentence it imposed, the statutory minimum on
count 1, was “too long,” but “Congress has imposed this law, not me.” Appellee’s
Supp. App’x, vol. 1, 262. The court obviously varied downward in imposing a
sentence of 240 months, but did not articulate its reasoning. After a sentencing judge
considers all of the factors listed in 18 U.S.C. § 3553(a) and makes an individualized
assessment based on the facts presented, the judge “must adequately explain the
chosen sentence to allow for meaningful appellate review and to promote the
perception of fair sentencing.” Gall v. United States, 552 U.S. 38, 50 (2007).
Accordingly, at re-sentencing, the court needs to explain why the sentence it imposes
is sufficient, but not greater than necessary to satisfy the sentencing objectives.
76