United States v. Paul Boccone

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4949
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
PAUL PHOTIADIS BOCCONE,
Defendant - Appellant.
No. 12-4952
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHARLES BROWN, JR.,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge. (1:11-cr-00592-CMH-1; 1:11-cr-00592-CMH-2)
Argued: October 31, 2013 Decided: February 20, 2014
Before NIEMEYER and WYNN, Circuit Judges, and Louise W.
FLANAGAN, United States District Judge for the Eastern District
of North Carolina, sitting by designation.
Affirmed by unpublished opinion. Judge Flanagan wrote the
opinion, in which Judge Niemeyer and Judge Wynn joined.
ARGUED: John O. Iweanoge, II, THE IWEANOGES' LAW FIRM, P.C.,
Washington, D.C.; Emma Mittelstaedt Burnham, BAKER BOTTS,
L.L.P., Washington, D.C., for Appellants. Michael Phillip
Ben'Ary, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,
Virginia, for Appellee. ON BRIEF: William H. Jeffress, Jr.,
Nicholas C. Margida, BAKER BOTTS L.L.P., Washington, D.C., for
Appellant Charles Brown, Jr. Neil H. MacBride, United States
Attorney, Marc J. Birnbaum, Special Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
FLANAGAN, District Judge:
Following a four-day trial, a jury convicted appellants
Paul Photiadis Boccone and Charles Brown, Jr., of multiple
charges related to illegal distribution of prescription drugs.
Boccone was convicted of additional health care fraud and tax
charges. The convictions arose from Boccone’s operation of
Chantilly Specialists, a pain management clinic in Chantilly,
Virginia, and Brown’s participation as a licensed nurse
practitioner in the clinic’s operations. On appeal, Boccone and
Brown challenge their convictions and sentences on several
grounds, including admissibility of expert testimony,
sufficiency of the evidence, and procedural reasonableness of
the sentences. For the reasons presented below, we affirm.
I.
In an indictment filed December 22, 2011, the government
charged Boccone and Brown with conspiracy to distribute
controlled substances, under 21 U.S.C. § 846 (Count 1), and
distribution of controlled substances, in violation of 21 U.S.C.
§ 841(a)(1) and 18 U.S.C. § 2 (Boccone, Counts 2-9; Brown,
Counts 2, 7, 9). Boccone also was charged with possession of a
firearm in relation to drug trafficking, under 18 U.S.C. §
924(c) (Count 10), health care fraud, under 18 U.S.C. § 1347
(Counts 11-16), and failure to pay employment taxes, under 26
U.S.C. § 7202 (Counts 17-28).
3
At trial, the government presented testimony by former
employees and patients of Chantilly Specialists, relatives of
patients, as well as an expert witness in the field of pain
management. Appellants introduced testimony by Boccone, Brown,
and an expert with respect to the cause of death of several
patients. The evidence, viewed in the light most favorable to
the government, may be summarized as follows.
Boccone was the owner and president of Chantilly
Specialists from late 2005 to around December, 2011. He has a
Juris Doctor degree, but no medical training. He employed
several medical providers at Chantilly Specialists, including
Brown, who was a nurse practitioner licensed to prescribe
medication under Virginia law under the supervision of a
physician. When Brown began work at Chantilly Specialists in
July 2009, Dr. Carol Currier was a physician employed at the
clinic, designated as supervising physician for Brown. Dr. Joel
Match took over in this position from Dr. Currier in 2011.
During the time that Dr. Currier was designated as supervising
physician, and for some of the time that Dr. Match was
designated as supervising physician, Boccone also provided
direction to Brown in his treatment of patients and prescribing
of medication.
Boccone and Brown interacted nearly every day at the
office. Boccone often was in the examination room with patients
4
during medical appointments. Boccone interfered sometimes in
medical treatment decisions, including by giving medical
suggestions and opinions regarding medications and dosage. In
some instances, Brown signed prescriptions that Boccone filled
out with medication amounts specified. Boccone also wore a lab
coat and sometimes referred to himself as “Dr. Boccone.”
In contrast to Boccone and Brown, Dr. Currier generally was
present at Chantilly Specialists only once or twice a week. She
was not told of positive drug screens, and she was not told of
patient deaths, except once, although she had asked to be kept
informed of such information.
After Dr. Match started employment at Chantilly
Specialists, Boccone sometimes steered patients from Dr. Match
to Brown, the result being that they would continue to get
medications they were on before, whereas Dr. Match would have
reduced medication pending clinical tests. After August 2011,
Dr. Match realized that Brown did not always follow his
instructions and ultimately recommended that Boccone terminate
Brown. Dr. Match, like Dr. Currier, was not aware of the full
extent of treatment practices at Chantilly Specialists.
Regarding typical practices at the clinic, patient visits
generally were limited to fifteen to twenty minutes. Boccone
directed use of an egg timer to limit visit times. Brown
generally would see about four patients per hour. Patients
5
typically did not get physical examinations. They sometimes
received medications without clinical information in their
charts or documentation of treatment at other facilities. A lead
medical assistant employed at the clinic between January 2011
and March 2012 observed that he “found unusual the massive
amounts of medications people were getting.” (JA 128).
The waiting room was extremely crowded, and some patients
had track marks and exhibited other indicia that they were
suffering from addiction or were in recovery. Many patients at
the clinic traveled long distances for their prescriptions,
including six or seven hours away from locations in Kentucky,
West Virginia, and Tennessee. Some patients became agitated or
angry if they did not get medications they sought, and police
frequently responded to reports of unruly patients at the
clinic. As a result of the conditions in the office, Boccone
carried a firearm at work.
The government presented testimony and evidence regarding
several former patients of Chantilly Specialists who received
prescriptions following office visits with Brown. Justin
McConnell was a patient between about 2008 and October 2011. At
his first visit, McConnell did not provide medical records from
prior providers. He received a prescription including 15
6
milligrams of oxycodone, 1 which was an increase over the amount
he claimed he was receiving from a podiatrist at the time.
McConnell never received a physical examination while a patient
at Chantilly Specialists, and he never saw Dr. Currier. As his
tolerance grew for pain medications, McConnell received an
increase in prescriptions to the point that he was addicted to
the medication, and he was receiving prescriptions for 80
milligram OxyContin and 30 milligram oxycodone pills, in
addition to other medications. At times, Brown called McConnell
on his personal cell phone, and McConnell was nervous about
prescriptions being changed depending on whether he called Brown
back. Brown made McConnell uncomfortable by giving him “bear
hug[s]” and sitting on his lap in the office. (JA 192).
Eric Honesty was a patient from about August 2008 until
February 2011. Honesty’s typical appointments took ten to
fifteen minutes, and he never received any physical examination
at Chantilly Specialists. Boccone and Brown were involved
jointly with some of Honesty’s medical visits at Chantilly
Specialists, and they increased his prescriptions over time up
1
“Oxycodone is a potent and addictive opioid that is
classified as a Schedule II drug under the Controlled Substances
Act.” United States v. McIver, 470 F.3d 550, 553 n.3 (4th Cir.
2006) (citing 21 U.S.C. § 812 (2000); 21 C.F.R. § 1308.12(b)(1)
(2004)). “It is marketed in instant-release form under trade
names such as Roxicodone, Roxicet, OxyIR, and OxyFAST, and in a
controlled release form as OxyContin.” Id.
7
to 680 to 700 narcotic pain pills per month. At one visit,
Honesty agreed to return 80 milligram OxyContin pills to Boccone
and Brown in exchange for a prescription increase. Honesty
returned “thousands” of 80 milligram pills in this manner. (JA
337). Three times when he attempted to take the medications as
written in his prescriptions, he overdosed. At one point,
Boccone and Brown instructed Honesty to take only half of the
pills they had prescribed for him. During the time that Honesty
was a patient at Chantilly Specialists, Honesty was charged with
unlawful distribution of oxycodone, some of which he obtained by
filling prescriptions issued by Brown.
King Dao was a patient from approximately 2009 to 2011. He
received pain medications, including 80 milligram OxyContin and
30 milligram oxycodone pills, following appointments with Brown
and at times at direction of Boccone. He received medications
despite having been tested positive for cocaine, and at one
point he received medications after having spent 78 days in jail
following an arrest for prescription fraud at Chantilly
Specialists, with no medical examination.
Michael Rogers was a patient from 2007 to the date of his
death, on April 8, 2010. He drove about six hours from Johnson
City, Tennessee to receive prescriptions at the clinic. Boccone
directed an increase in his pain medications in February 2009,
to 80 milligram OxyContin and 30 milligram Roxicodone pills, a
8
level that was maintained by providers, including Brown, until
Rogers’s death. Brown admitted making changes to Rogers’s
medical chart after learning of Rogers’s death.
The government also introduced testimony and a report of an
expert witness qualified in the field of pain management, Dr.
Robin Hamill-Ruth. Testifying as to standards of practice in the
field of pain management, she summarized guidelines for
prescribing medications for chronic pain, as well as standards
for evaluations, referrals, documentation, periodic review and
examinations. Dr. Hamill-Ruth also identified “red flags”
indicating patients with problems with addiction, abuse, or
diversion of medication, which would signal to a provider that
there is not legitimate medical purpose for prescriptions.
These include traveling long distances to receive medications,
early refills, frequent calls, lost prescriptions, violent
behavior, and receiving treatment from multiple providers. She
also described the significance of 80 milligram OxyContin pills,
which is a high dosage amount that she had never prescribed in
her twenty-five years of pain management practice.
In addition, Dr. Hamill-Ruth outlined her review of certain
patient records, including those for Honesty, Dao, and Rogers,
underlying individual distribution charges in this case. For
each patient reviewed, Dr. Hamill-Ruth concluded that the entire
course of treatment was outside the bounds of the accepted
9
standard of care for pain management practice and for no
legitimate medical purpose. She cited in each case indicia that
should have led a reasonable, licensed medical practitioner to
cease or reduce making prescriptions, require diagnostic
examinations, and monitor patients to ensure legitimate medical
care.
Finally, the government introduced testimony regarding
Boccone’s health care billing fraud and failure to pay taxes.
With respect to billing fraud, the provider listed in the
medical record for one medical visit was Boccone, whereas the
provider billed to Medicare was a physician’s assistant. With
respect to the tax charges, Boccone failed to pay employment
taxes despite withholding tax from employee paychecks.
Upon the close of the government’s evidence, the government
voluntarily moved to dismiss three of the health care fraud
charges (Counts 11, 12, and 13), which motion the district court
granted. Defendants moved for judgment of acquittal at that
time, and again moved for judgment of acquittal following the
close of their case, which the district court denied.
Following closing argument and jury instructions, the jury
found Boccone guilty of the conspiracy charge (Count 1), six of
the distribution charges (Counts 2, 3, 4, 5, 7, and 9), one
health care fraud charge (Count 14), and all of the tax charges
(Counts 17-28). The jury found Boccone not guilty of two of the
10
distribution charges (Counts 6 and 8), and possession of a
firearm in furtherance of a drug trafficking crime (Count 10).
The jury found Brown guilty of the conspiracy charge (Count 1)
and all three of the distribution charges against him (Counts 2,
7, 9). Finally, the jury found that death did not result from
the use of the substance distributed in Count 9, for patient
Rogers.
In preparation for sentencing, the probation office
prepared a presentence report, which calculated a guideline
range of 360 months to life imprisonment for Boccone and a
guideline range of 188 to 235 months imprisonment for Brown.
After adopting the guideline ranges in the presentence reports
without change, the court varied downward, sentencing Boccone to
180 months imprisonment and Brown to 60 months imprisonment.
These appeals followed.
II.
A.
We address first Boccone’s argument that the district court
erred in allowing admission of the expert report and testimony
of Dr. Hamill-Ruth.
“We review for abuse of discretion the district court’s
decision to admit expert testimony under Federal Rule of
Evidence 702.” United States v. Wilson, 484 F.3d 267, 273 (4th
Cir. 2007) (citing Kumho Tire Co. v. Carmichael, 526 U.S. 137,
11
152 (1999)). “We will not vacate a conviction unless we find
that the district court judge acted arbitrarily or irrationally
in admitting evidence.” United States v. Basham, 561 F.3d 302,
326 (4th Cir. 2009) (internal quotations omitted). In addition,
evidentiary rulings are subject to harmless error review.
United States v. Mouzone, 687 F.3d 207, 216 (4th Cir. 2012).
Federal Rule of Evidence 702 provides:
A witness who is qualified as an expert by knowledge,
skill, experience, training, or education may testify
in the form of an opinion or otherwise if: (a) the
expert's scientific, technical, or other specialized
knowledge will help the trier of fact to understand
the evidence or to determine a fact in issue; (b) the
testimony is based on sufficient facts or data; (c)
the testimony is the product of reliable principles
and methods; and (d) the expert has reliably applied
the principles and methods to the facts of the case.
Fed. R. Evid. 702. “A ‘trial judge must have considerable
leeway in deciding in a particular case how to go about
determining whether particular expert testimony is reliable.”
Wilson, 484 F.3d at 273 (quoting Kumho Tire, 526 U.S. at 152).
“Thus, ‘Rule 702 grants the district judge the discretionary
authority, reviewable for its abuse, to determine reliability in
light of the particular facts and circumstances of the
particular case.’” Id. (quoting Kumho Tire, 526 U.S. at 158).
The government contends as an initial matter that we need
not reach Boccone’s arguments as to admissibility of Dr. Hamill-
Ruth’s testimony because it was irrelevant with respect to
12
Boccone’s distribution of controlled substances. The government
points out correctly that to convict Boccone of distribution of
controlled substances, it need only show that Boccone, not a
licensed medical provider, distributed or caused the
distribution of a controlled substance. See 21 U.S.C. §
841(a)(1); 18 U.S.C. § 2.
Nevertheless, Boccone is charged in this case not only with
distributing controlled substances individually, but also in
concert with and in conspiracy with other medical providers,
particularly Brown. In order to convict a licensed medical
provider of unlawful distribution of controlled substances, the
government must prove that the provider’s “‘actions were not for
legitimate medical purposes in the usual course of his
professional medical practice or [were] beyond the bounds of
medical practice.’” United States v. Singh, 54 F.3d 1182, 1187
(4th Cir. 1995) (quoting United States v. Tran Trong Cuong, 18
F.3d 1132, 1141 (4th Cir.1994)). As discussed below in
addressing the sufficiency of the evidence, Boccone’s
convictions may rest at least in part on the theory that Boccone
directed Brown to issue prescriptions that were not for
legitimate medical purposes or were beyond the bounds of medical
practices.
Accordingly, expert testimony regarding whether treatment
in this case was beyond the bounds of medical practice is
13
relevant to the counts of conviction against both Brown and
Boccone. We turn, therefore, to address Boccone’s arguments as
to the admissibility of that testimony.
Boccone contends that Dr. Hamill-Ruth’s testimony and
report does not meet the standards set forth in Fed. R. Evid.
702 for multiple reasons, including that Dr. Hamill-Ruth (1) did
not accurately set forth the standards of model policies and
guidance on prescribing narcotics, (2) used only sixteen hours
to review thousands of pages of medical records, (3) did not
examine any of the patients referred in her report, (4) did not
adequately specify records reviewed, and (5) stated legal
conclusions such as “it is illegal” within her written report.
This court previously has upheld the use of expert medical
testimony similar in many respects to the testimony of Dr.
Hamill-Ruth. For example, in United States v. McIver, 470 F.3d
550 (4th Cir. 2006), the government offered testimony of an
anesthesiologist qualified as an expert in pain management, who
concluded, “[b]ased on his review of certain patient records,”
that the “treatment of several of Appellant’s patients fell
outside the parameters of legitimate medical practice.” Id. at
556. For one patient, he opined that “there was ‘no legitimate
reason to be prescribing’ combinations of opioids in such high
doses based on the patient’s medical conditions,” and in light
of the patient’s “history of drug abuse.” Id. For another, he
14
testified that it was “outside the legitimate practice of
medicine for Appellant to prescribe high doses of opioids given
[the patient’s] history of negative drug screens.” Id.
Similarly, in United States v. Allere, 430 F.3d 681 (4th
Cir. 2005), a physician qualified as an expert reviewed selected
medical files in evaluating whether prescriptions were issued
outside the scope of legitimate medical practice. Id. at 686.
The expert testified that “many of the prescriptions lacked
appropriate documentation or had no ‘follow up’ treatment, that
the defendants ignored ‘red flags’ indicative of drug abuse, and
that certain prescriptions and dosages were inappropriate.” Id.
Likewise, in Tran Trong Cuong, an expert provided testimony
following a medical file review, opining, for example, “that
persons claiming . . . severe pain over a long period of time
should have had additional reports in their files of x-ray
examinations, blood tests and other procedures attempting to
identify the source of the pain.” Id.; see also United States v.
Hurwitz, 459 F.3d 463, 467 (4th Cir. 2006) (“The government’s
expert witnesses testified that a doctor who knowingly
prescribed opioids to an addict or to a patient the doctor knew
was selling the drugs on the street was acting outside the
bounds of legitimate medical practice”); Singh, 54 F.3d at 1187
& n.3 (expert testified as to “the inappropriateness of the
15
prescriptions,” upon review of “information relating to” each
patient).
In this case, Dr. Hamill-Ruth was qualified, without
objection, as an expert in pain management. Similar to the
expert testimony in McIver, Allere, and Tran Trong Cuong, Dr.
Hamill-Ruth described her understanding of the standard of care
for treating patients in a pain management context and then
compared the treatment shown in the medical records in the case
with that standard of care, finding the treatment shown to be
outside legitimate medical practice. In doing so, she cited red
flags similar to those identified by experts in the cases noted
above, including negative drug screens, lack of documentation
and follow up treatment for medical conditions, prescriptions
over a long period of time without medical examinations, high
dosage combinations, and prescriptions despite signs of drug
addiction or street sales. (JA 3827-3836; 536-551).
In light of Dr. Hamill-Ruth’s qualifications and detailed
manner in which she outlined her review of patient records and
evidence considered as a basis for her opinions, we conclude
that her testimony and report were both scientifically valid and
helpful to the jury. Contrary to Boccone’s argument here, there
is no requirement in our precedent that the expert must examine
the patients whose files are reviewed, or set forth a particular
model policy or standard, or cite to particular records or
16
amounts of records for any particular patient. Rather, the
points of criticism raised by Boccone go to the weight of the
testimony, and these points were open for exploration upon
cross-examination of the expert witness. 2 Indeed, as the court
noted in McIver, such cross-examination enabled the appellants
to point out “varying theories of pain management, . . .
differences in points of view as to appropriate levels of pain
medication,” and make challenges to the expert’s “opinions
regarding [the appellant’s] treatment of specific patients.”
McIver, 470 F.3d at 556.
We address separately Boccone’s argument that the report
improperly states a legal conclusion, referencing in particular
the statement by Dr. Hamill-Ruth that “[i]t is illegal and
grossly substandard for a person without medical license and DEA
registration to make therapeutic decisions and alter prescribing
of controlled substances.” (JA 3828). This statement is made in
the context of Dr. Hamill-Ruth’s review of Rogers’s medical
file, in which Boccone directs medication dosage and treatment
for Rogers in an office visit note. (Id.).
2
Boccone also urges the court to consider a report prepared
by Jason Brajer, MD, approximately two months following the jury
verdicts in this case. Dr. Brajer comments upon and provides a
counter-point to conclusions reached by Dr. Hamill-Ruth in her
expert report. In the same vein as the criticisms noted above,
the points raised by Dr. Brajer more properly go to the weight
of the testimony rather than its admissibility.
17
This court has observed that “opinion testimony that states
a legal standard or draws a legal conclusion by applying law to
the facts is generally inadmissible.” McIver, 470 F.3d at 562.
Nevertheless, an expert may testify that treatment was “outside
the bounds of . . . professional medical practice,” or that
“treatment of certain patients was either illegitimate or
inappropriate.” Id. Such language “falls within the limited
vernacular that is available to express whether a doctor acted
outside the bounds of his professional practice.” Id.
In accord with McIver, the expert’s statement here that “it
is illegal and grossly substandard” for a person without medical
license to make therapeutic decisions, in reference to Boccone’s
involvement in treatment of Rogers, reasonably articulates the
extent of departure from usual professional practice in this
case. The statement thus is relevant to the jury’s
determination that treatment of Rogers was “outside the bounds
of . . . professional medical practice.” Id. In any event,
even assuming that the reference to “it is illegal” crossed
outside of the “limited vernacular,” id., available in this
context to describe legitimate medical practice, we conclude
that the error was harmless, given the weight of evidence
against Boccone apart from that reference in Dr. Hamill-Ruth’s
report. See United States v. McLean, 715 F.3d 129, 143 (4th
Cir. 2013) (“[W]e need only say with fair assurance, after
18
pondering all that happened without stripping the erroneous
action from the whole, that the judgment was not substantially
swayed by the error.”) (internal quotations omitted).
In sum, the district court properly admitted Dr. Hamill-
Ruth’s testimony and report, and Boccone cannot establish error
warranting reversal of his convictions on the basis of such
testimony and report.
B.
Appellants argue that the evidence was insufficient to
convict them of any of the counts of conviction.
We must sustain the jury’s verdict “if there is substantial
evidence, taking the view most favorable to the Government, to
support [the convictions].” United States v. Moye, 454 F.3d
390, 394 (4th Cir. 2006) (en banc) (internal quotations
omitted). “[S]ubstantial evidence is evidence that a reasonable
finder of fact could accept as adequate and sufficient to
support a conclusion of a defendant’s guilt beyond a reasonable
doubt.” United States v. Burgos, 94 F.3d 849, 862 (4th Cir.
1996) (en banc). In reviewing a sufficiency argument, we “must
consider circumstantial as well as direct evidence, and allow
the government the benefit of all reasonable inferences from the
facts proven to those sought to be established.” United States
v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982). In addition,
we “may not weigh the evidence or review the credibility of the
19
witnesses,” as “those functions are reserved for the jury.”
United States v. Wilson, 118 F.3d 228, 234 (4th Cir. 1997).
1.
We address first the sufficiency of the evidence to convict
appellants of the individual counts of distribution of
controlled substances under 21 U.S.C. § 841.
Section 841 provides that “[e]xcept as authorized by this
subchapter, it shall be unlawful for any person knowingly or
intentionally . . . to manufacture, distribute, or dispense . .
. a controlled substance.” 21 U.S.C. § 841(a)(1). An exception
pertinent to this case is set forth in § 822(b), which provides:
Persons registered by the Attorney General under this
subchapter to manufacture, distribute, or dispense
controlled substances or list I chemicals are
authorized to possess, manufacture, distribute, or
dispense such substances or chemicals (including any
such activity in the conduct of research) to the
extent authorized by their registration and in
conformity with the other provisions of this
subchapter.
Id. § 822(b). As the court previously has observed, regulations
promulgated by the Attorney General provide “that a prescription
for a controlled substance is effective only if it is ‘issued
for a legitimate medical purpose by an individual practitioner
acting in the usual course of his professional practice.’”
Hurwitz, 459 F.3d at 475 (citing 21 C.F.R. § 1306.04(a)).
Thus, to convict a medical practitioner under § 841(a)(1),
the government must prove that (1) the defendant “distributed or
20
dispensed a controlled substance,” (2) he “acted knowingly and
intentionally,” and (3) his “actions were not for legitimate
medical purposes in the usual course of his professional medical
practice or were beyond the bounds of medical practice.” Singh,
54 F.3d at 1187 (quoting Tran Trong Cuong, 18 F.3d at 1141).
“[T]here are no specific guidelines concerning what is required
to support a conclusion that an accused acted outside the usual
course of professional practice.” Id. (quoting United States v.
August, 984 F.2d 705, 713 (6th Cir. 1992)). “Rather, the courts
must engage in a case-by-case analysis of evidence to determine
whether a reasonable inference of guilt may be drawn from
specific facts.” Id. (quoting August, 984 F.2d at 713).
A defendant’s “good faith” generally is relevant to a
jury’s determination of whether a defendant acted outside the
bounds of accepted medical practice or without a legitimate
medical purpose. Hurwitz, 459 F.3d at 476 & 480. Accordingly a
defendant cannot be convicted “if he merely made an honest
effort to prescribe in compliance with an accepted standard of
medical practice.” Id. at 476-77 (quoting United States v.
Moore, 423 U.S. 122, 142 (1975)). Good faith in this context is
an objective rather than subjective standard, meaning that “good
faith is not merely a doctor’s sincere intention towards the
people who come to see him, but, rather, it involves his
sincerity in attempting to conduct himself in accordance with a
21
standard of medical practice generally recognized and accepted
in the country.” Id. at 478 (quoting United States v. Hayes, 794
F.2d 1348, 1351 (9th Cir. 1986)).
Brown contends that he should be subjected to a different
standard because, as a nurse practitioner in Virginia, he was
authorized to prescribe only under supervision of a licensed
physician. Brown fails to articulate, however, the manner in
which the elements of the distribution offense should be
different for a nurse practitioner as opposed to a physician.
Indeed, the district court’s jury instructions set forth the
government’s burden of proof in terms which apply equally to
physicians and others “licensed and authorized to prescribe
controlled substances.” (JA 818). In accordance with the
standards set forth above, the district court instructed the
jury that the government must prove beyond a reasonable doubt
“that the defendant or defendants’ action were not for the
legitimate medical purposes in the usual course of professional
practice or were beyond the bounds of medical practice.” (JA
817). Under these instructions, Brown, as a nurse practitioner,
is held to the same standard of practice as any other licensed
medical practitioner, namely the requirement to make an “honest
effort to treat his patients in compliance with the accepted
standards of medicine.” (JA 818) (emphasis added). Brown did
22
not object to these instructions. Nor does he contend on appeal
that the jury instructions were improper.
Brown contends, nonetheless, that the government was
required to introduce evidence that his conduct fell below a
standard of practice for a nurse practitioner, as opposed to the
standard of practice for a physician, and that the government
did not do so in this case. We are not persuaded by Brown’s
premise that the standard of medical practice should be any
different for a nurse practitioner licensed to prescribe
medication and a physician licensed to prescribe medication. In
both instances the prescription – whether by a physician or a
nurse practitioner – must be within the scope of usual medical
practice and for a legitimate purpose. A nurse practitioner,
like any other medical practitioner, “is not free deliberately
to disregard prevailing standards of treatment.” Hurwitz, 459
F.3d at 479 (quoting United States v. Vamos, 797 F.2d 1146, 1151
(2d Cir. 1986)); see also United States v. Lawson, 682 F.2d 480
(4th Cir. 1982) (in affirming § 841(a)(1) convictions of
pharmacist, stating that one element is “whether [the defendant]
knew that the purported prescription was not issued for a
legitimate medical purpose or in the usual course of medical
practice”).
Brown also suggests that if a supervising physician
authorizes a nurse practitioner to write prescriptions and does
23
not revoke his ability to prescribe, then there is no basis to
convict him absent further evidence that he “endeavored to
conceal his prescriptions” or that the nurse and the physician
“are deliberately working in concert to issue unlawful
prescriptions.” (Brown Br. at 34). According to Brown, in the
absence of such evidence of concealment or collusion, a nurse
practitioner should be insulated from culpability because a
physician has agreed to allow the nurse practitioner to
prescribe medication. Such a bright-line rule, however, runs
counter to this court’s prior recognition that “there are no
specific guidelines concerning what is required to support a
conclusion that an accused acted outside the usual course of
professional practice,” and the court “must engage in a case-by-
case analysis of evidence to determine whether a reasonable
inference of guilt may be drawn from specific facts.” Singh, 54
F.3d at 1187 (quotations omitted).
Contrary to Brown’s suggestion, although evidence of
concealment or collusion with a physician may be sufficient to
convict a nurse practitioner of unlawful distribution of
controlled substances, such evidence is not necessary to secure
a conviction. A reasonable jury may conclude based upon other
facts and circumstances that a nurse practitioner issued
prescriptions knowing that they were not for a legitimate
purpose or were outside the usual course of professional
24
practice. In this case, for instance, Brown was not merely
acting in isolation, solely under direction of a licensed
physician. Rather, as we will detail below, this case involved
more complex relationships between a non-physician office
manager who took an active role in treatment decisions
(Boccone), other medical and non-medical employees (including
Brown), and supervising physicians who did not maintain a
constant presence in the practice (including Drs. Currier and
Match).
With these considerations in mind, we now turn to the
sufficiency of the evidence supporting the individual counts of
distribution of controlled substances, beginning with Brown’s
convictions.
a.
Brown was convicted of three counts of unlawful
distribution of a controlled substance, oxycodone, corresponding
to prescriptions he wrote for three patients: King Dao, on
October 23, 2009 (Count Two); Eric Honesty, on June 7, 2010
(Count Seven); and Michael Rogers on April 5, 2010 (Count Nine).
Brown concedes that the government proved the first two elements
of each of these offenses — that Brown distributed oxycodone,
and that he did so knowingly and intentionally to each of these
patients. He contends, however, that the government failed to
prove the third element — that the prescriptions were
25
illegitimate or outside the course of professional practice. We
disagree.
The government introduced several categories of evidence
supporting the third element of conviction on each of these
charges. First, as to each charged distribution, the government
introduced evidence that Boccone directed the treatment
prescribed. In particular, with respect to Dao, on October 23,
2009, Boccone entered a treatment note stating:
New regiment [sic] as follows: Opiate Tollerant [sic].
Discontinue all medications. 60mg Oxsycontin [sic]
for long acting releif [sic] from chronic intractable
pain to be taken with 40mg Oxycontin to establish
baseline releif [sic]. 40mg to be taken 3 hours after
taking a 60mg. 1 10mg methadone to be taken at
bedtime to affect the CYP1A4 Enzyme decreasing
metabolising of oxycontin to increase duration. 2ml
liquid Oxicodone for immediate releif [sic] in AM when
awakening.
(JA 2731). Earlier in the same day, Boccone entered further
notes regarding Dao’s pain symptoms. (JA 3030). At the same
time, Brown is listed as medical provider in the medical
records, and Brown issued a prescription for 40 milligram and 60
milligram OxyContin pills that same day. (JA 3030-3033; 2671-
2675).
With respect to Honesty, on June 7, 2010, Boccone entered a
treatment note stating that he restored an OxyContin
prescription:
Restored Oxycontin to 3 tablets every 4 hours while
awake from 10:00AM until 10:00PM with one additional
26
at last dosage to total 13 tabs per day; Resored [sic]
Roxicodone to 3 tabs q6 with one additional HS, Zanax
at 1mg q12, cymbalta 60mg 1 tab q 12, changed
neurontin to 600 q6.
(JA 2136). That same day, Brown issued four prescriptions for
Honesty, including two separate 80 milligram oxycodone
prescriptions. (JA 1974-1981).
Finally, with respect to Rogers, in an entry in Rogers’s
medical records made by Boccone on February 12, 2009, Boccone
increased Rogers’s oxycodone regimen to the level that it
remained until Rogers’s death, on April 8, 2010. (JA 1715-
1717). He also opined in a treatment note that Rogers
“[r]equires physical therapy,” “has developed a very high
tolerance to opiates,” and has a spinal cord injury with “no
alternative treatment.” (JA 1781). On April 5, 2010, Brown
issued prescriptions in the amount set by Boccone on February
12, 2009. (JA 1700-1702, 1715).
In light of the above, we reject Brown’s contention that
the record contains no evidence showing that Boccone directed
Brown to write any of the three charged prescriptions. While
Brown cites lack of testimony by the patients themselves as to
who directed the prescriptions, the documentary evidence,
combined with testimony regarding the working relationship
between Boccone and Brown, amply supports the inference that
Boccone directed the prescriptions.
27
Moreover, we reject Brown’s contention that, even if
Boccone directed the prescriptions, the government failed to
present any evidence that such conduct rendered the
prescriptions illegitimate. The statute itself provides that it
is illegal for a non-licensed individual to distribute
controlled substances — or to direct or cause distribution
thereof. See 21 U.S.C. § 841(a)(1); 18 U.S.C. § 2. In addition,
Dr. Hamill-Ruth opined that it is “[a]bsolutely not appropriate”
for a non-licensed person to direct, oversee, or guide
prescriptions for narcotic pain medications. (JA 530; see JA
3828). Thus, the jury properly could infer that if Boccone
directed or caused the prescriptions to be issued, this itself
established, or was one factor supporting, the conclusion that
the prescriptions were illegitimate. See United States v. Orta-
Rosario, 469 Fed. Appx. 140, 144 (4th Cir. 2012) (in affirming
convictions of doctor and employee of online prescription
service, noting factors relevant to guilt, including “permitting
non-medical personnel to write prescriptions with pre-signed
bland prescription forms”); United States v. Mahar, 801 F.2d
1477, 1487 (6th Cir. 1986) (“[T]hat patients were regularly sold
controlled substances . . . selected by non-physician lay
employees of the Clinic would further support a finding that
controlled substances were issued outside the usual course of
medical practice and for no legitimate medical purpose.”).
28
Apart from evidence of Boccone’s involvement in the
individual prescriptions underlying the distribution charges,
the government also introduced evidence that Boccone influenced
the entire course of treatment of each patient, both in the way
he managed his office and in his interactions with individual
patients. For example, Dao testified that at one point he was
arrested at Chantilly Specialists for prescription fraud, and he
was unable to take his prescription with him at the time of
arrest. After spending 78 days in jail, he returned to
Chantilly Specialists to pick up his prescription, and he was
provided his prescription without seeing any medical
practitioner, in the presence of Boccone, Boccone’s wife, and
another individual. (JA 391). Honesty agreed with Brown and
Boccone to return 80 mg OxyContin pills to Boccone and Brown.
(JA 336-337). 3 And, as noted above, Boccone set the level of
3
Brown contends the evidence is insufficient to link him to
the agreement with Honesty, because in some of his testimony
Honesty references Brown and Boccone together, without
identifying specific activity by Brown. He also contends this
agreement is irrelevant to the charged prescriptions. Viewing
the testimony in this manner, however, neglects to draw
inferences in favor of the government and impermissibly invites
the court to weigh the evidence. Honesty’s testimony provides a
basis upon which to infer an unlawful agreement between Honesty,
Brown, and Boccone, which is one factor among several showing
that treatment of Honesty was outside the scope of medical
practice, and that Brown knew that the specific charged
prescription, as part of that course of treatment, was
illegitimate.
29
medication for Rogers that lasted from 2009 to his death in
2010. (JA 1715-1717).
In addition to evidence of Boccone’s involvement in medical
decisions, the government introduced further evidence that the
entire course of treatment of patients Dao, Honesty, and Rogers,
was illegitimate and outside the usual course of medical
practice. This evidence took the form of indicia or red flags
of diversion, addiction, and abuse, as highlighted in the report
and testimony of Dr. Hamill-Ruth.
In particular, Dao received prescriptions for large volumes
of pain medication, continuing without change over an extended
period of time, without referrals for alternative treatment or
therapy for “underlying medical issues that are very
concerning.” (JA 549, 3833). Diagnostic tests were
insufficient “to support the diagnosis of intractable pain,” and
provided “no good indication to be prescribing this man chronic
opiates as far as their documentation is concerned.” (JA 549).
Additional red flags included multiple early refills, multiple
calls, sporadic visits, and drug screens, all as indicia that
prescriptions are fueling a drug addiction. (JA 550-551). A
pharmacy called in 2010 to report early refill requests, an
incident in which Dao was with another person who attempted to
pay with counterfeit money, and Dao’s provision of medication to
another person. (JA 2710, 3833). On March 23, 2011, Dao
30
pleaded guilty to prescription fraud based on prescriptions
received from Chantilly Specialists. (JA 2659). Dao met with
Brown for two appointments after returning from jail following
his arrest for prescription fraud. (JA 389, 391, 2700-2705). As
noted above, Dao picked up prescriptions that had been filled on
the day of his arrest, without any medical examination. (JA 390-
391). Dao received prescriptions despite having drug screens on
several occasions that were positive for use of cocaine and/or
negative for proscribed medications (JA 386, 3205, 3834).
Honesty testified that he never received any physical
examination while being seen at Chantilly Specialists. (JA
330). According to Dr. Hamill-Ruth, “there was no good
indication in the record for prescribing him significant
medication doses,” and “no outside documentation at the initial
visit.” (JA 547). Boccone and Brown increased Honesty’s
prescriptions over time, up to around 680 to 700 narcotic pain
pills per month. (JA 335, 338). Three times when he attempted
to take the medications as written in his prescriptions, he
overdosed, and he informed Boccone and Brown of the overdoses.
(JA 338-339). Further red flags included loss of medications;
lack of documentation of injuries and outside medical visits;
lack of documentation of prescriptions from other providers;
escalating aberrant behavior including threats prompting
referrals to psychiatry for “substance abuse, bipolar”
31
disorders; lack of evidence of compliance with referrals; and
drug tests negative for prescribed medications. (JA 1990-1991,
2152, 3834-3836). In sum, Dr. Hamill-Ruth opined “his behavior
really was very significant for abuse, and it was unconscionable
to continue to support his addiction problem without sending him
for appropriate referral.” (JA 548).
Indicia of addiction and abuse as to Rogers included that
he drove a long distance from Tennessee to receive
prescriptions, he was treated with pain medication over an
extended period from 2007 to his death in 2010, and additions
and adjustments were made without any rationale noted. (JA
3827). Additional red flags include frequent phone calls,
requests for early refills, self-escalation of dosing,
inconsistencies in reporting thefts, issues with receipt of
medication, and needing prescriptions overnighted to his home in
Tennessee, positive drug screens and an absence of documentation
as to pharmacies used. (JA 3828-3829). Further, Dr. Hamill-
Ruth opined that it was inappropriate and “flagrantly dangerous”
to prescribe Rogers the combinations of medications he received
without adequate documentation. (JA 537). As for the
prescriptions issued by Brown days before Rogers’s death, Dr.
Hamill-Ruth noted that prescriptions issued for “excessive doses
of multiple medications” raise “significant concerns” in light
of Rogers’s affliction with pneumonia. (JA 540-541).
32
Considering all of the above, including the evidence of
Boccone’s involvement, in conjunction with indicia of diversion,
addiction, and abuse, in the medical record of these patients,
the evidence was sufficient for the jury to conclude that Brown
knew or had reason to know that prescriptions he issued were for
an illegitimate purpose or were not within the scope of usual
medical practice.
Brown raises several additional challenges as to the
evidence supporting the distribution counts of conviction, which
we find unavailing. First, following on his earlier argument
regarding the legal standard, Brown suggests that expert
testimony by Dr. Hamill-Ruth was not sufficient to convict him
because it addressed only a physician’s standard of practice and
did not address whether his own treatment fell below the
standard of a nurse practitioner. As discussed above, we
disagree that the standard of practice for a nurse practitioner
differs from that of a physician. Moreover, as to sufficiency
of her report and testimony, Dr. Hamill-Ruth did not limit her
opinion to the standard of practice for physicians, to the
exclusion of other licensed practitioners such as nurse
practitioners. Indeed, she testified as to “the practice . . .
in the field of pain management,” and guidelines that “medical
providers who practice in the field of pain management can rely
on[.]” (JA 526) (emphasis added). She specifically noted that
33
nurse practitioners, as well as physicians, are authorized to
prescribe controlled substances in Virginia. (JA 530).
Accordingly, we reject Brown’s contention that Dr. Hamill-Ruth’s
testimony was insufficient to prove that Brown’s conduct fell
below the standard of medical practice.
Brown next contends that his treatment of patients
underlying the charged offenses, including Dao, was in good
faith because these patients had legitimate medical problems.
The existence of legitimate medical problems, however, does not
compel a finding that a practitioner prescribed medications in
good faith. Indeed, in Singh, the court upheld convictions of a
physician for unlawful distribution of controlled substances,
even though patients to which medications were prescribed had
numerous physical ailments. For example, one patient was
diagnosed with “lumbar disc problems and seizures.” Singh, 54
F.3d at 1188. Based on the opinion of an expert witness, the
court noted that continued prescriptions of addictive drugs to
this patient, in light of indicia of alcohol abuse and
recommendations from a psychological evaluation, was “outside
the scope of a legitimate medical practice.” Id.
In this case, as in Singh, patients presented with medical
problems, including that Rogers had history of a gunshot wound,
(JA 3827), Dao suffered from “aching low back pain, intermittent
left L5 radiculitis and tension related neck pain,” (JA 3833),
34
and Honesty had hypertension, sleep apnea, asthma, and carpel
tunnel syndrome. (JA 3834). Nevertheless, the presence of such
legitimate medical problems in many respects supported, rather
than undermined, a determination that prescriptions were issued
outside the scope of medical practice.
To this end, Dr. Hamill-Ruth identified a disconnect
between the problems presented and the course of treatment. For
Rogers, she noted a lack of documentation regarding the nature
of injuries, and she noted “significant concerns” with
prescribing medication to Rogers, in light of his pneumonia.
(JA 541, 3827). For Dao, despite many ailments, Dr. Hamill-Ruth
noted that he was “not put on an NSAID, sent for PT, or offered
interventional pain management, any or all of which could have
helped more effectively manage his pain.” (JA 3833).
Similarly, for Honesty, “an inadequate exam is documented, and
it does not support chronic intractable pain,” and “no exam or
other data” is in the record to support some diagnoses. (JA
3834-35). Accordingly, the manner in which legitimate medical
problems are addressed, rather than the existence of the
problems in the first place, is most probative to whether
prescriptions are issued within the usual scope of medical
practice. (See JA 527).
Finally, Brown argues that he acted in good faith because
supervising doctors and the Virginia Board of Medicine never
35
stated his treatment of any patient was improper. As discussed
above, however, the level of supervision Brown received is one
factor among many bearing on the issue of whether Brown knew
that prescriptions were issued outside the scope of legitimate
medical practice. While Brown contends that supervising
physicians and the Board never criticized his treatment of any
patient, Brown also points to no evidence that they approved
specific prescriptions underlying the charged offenses.
The practice agreement between Brown and Dr. Currier does
not set forth parameters of supervision or approval of specific
prescriptions, nor does it restrict Brown’s prescriptive
authority beyond specifying the types of drugs which Brown may
prescribe. Rather, it is a form check-box agreement, which
states simply that Brown is “authorized by this practice
agreement” to prescribe multiple categories of Schedule II
drugs. (JA 3763). A jury reasonably could infer based on this
practice agreement that Brown maintained responsibility to
discern that a given prescription was legitimate or issued in
the course of medical practice. 4
4
Because of the limited nature of the agreement in this
case, we need not address whether conceivably a practice
agreement could include such restrictions on authority of a
nurse practitioner, and a physician could exercise such
oversight over individual prescriptions, to foreclose as a
matter of law culpability of a nurse practitioner. In this
manner, we find only theoretical significance in the fact that,
(Continued)
36
Moreover, Dr. Currier, who was supervising physician during
the time of the charged prescriptions, testified that she did
not authorize Brown to prescribe medications in the presence of
red flags such as inconsistent drug tests, lack of treatment
records, and noncompliant or aberrant behavior. (JA 308). She
also testified that she was not sufficiently present and
informed of clinical information, nor sufficiently involved in
treatment decisions, to provide adequate oversight of individual
patient treatment. (See JA 264-265, 309).
In addressing this evidence on appeal, Brown draws
inferences in favor of the defense rather than the government.
For example, Brown opines that “[g]iven [their] practice
agreement, the fact that Dr. Currier did not expressly authorize
Mr. Brown’s actions – which is all the transcript shows – was
tantamount to approval of Mr. Brown’s prescribing practices.”
(Brown Reply Br. at 6). Similarly, Brown suggests that the jury
was required to infer from Brown’s lack of training and
supervision that Brown believed in good faith that the
prescriptions he issued were legitimate. But, a contrary
as Brown notes, Virginia law authorizes a practice agreement to
“restrict such prescriptive authority as deemed appropriate by
the physician providing direction and supervision.” (Brown Br.
at 33, quoting Va. Code Ann. § 54.1-2957.01(A)). It suffices in
this case that no such restrictions were embodied in Brown’s
practice agreement.
37
inference is also reasonable. In particular, the jury reasonably
could infer that, in the absence of adequate supervision and
oversight from Dr. Currier, Brown chose to follow directions of
Boccone in making the charged prescriptions, including
prescribing a high volume of medications for as long as patients
were willing to receive them, all with knowledge of or
deliberate blindness to the fact that the prescriptions were
without grounding in legitimate medical practice.
In sum, substantial evidence supported Brown’s convictions
for distribution of controlled substances.
b.
Turning next to Boccone’s convictions for distribution of
controlled substances, we conclude that the evidence amply
supported the conclusion that Boccone knowingly distributed
oxycodone to six patients by entering directions for
prescriptions in each patient’s medical file on the dates of the
charged distribution.
In particular, as we have already noted, the jury
reasonably could infer that Boccone directed the charged
prescriptions for other patients Dao, Rogers, and Honesty. In a
similar manner, the evidence demonstrated that Boccone directed
the prescriptions for patients Diane Gisin, Linda Mumma, and
Bryan Anderson (Counts Three, Four and Five). Specifically, on
April 16, 2009, Boccone entered direction in Gisin’s medical
38
file stating “[m]aintain current regiment [sic],” and
physician’s assistant Joe Frazier signed prescriptions including
Roxicodone 30 mg and other opiate drugs. (JA 2576, 2534). In a
medical record entry on February 5, 2009, Boccone directed
maintenance of an opiate regimen and added prescriptions for
Mumma. (JA 3581-3582). Finally, in a medical record entry on
August 17, 2009, Boccone entered a detailed treatment note
including diagnosis for Anderson, and directed four days of
medication, including 80 milligram OxyContin pills. (JA 3933).
This evidence is sufficient to permit the jury to infer
that Boccone conducted the patient visits or directed
prescriptions for each patient on the date charged, thus
causing, as a non-licensed individual, distribution of
controlled substances. See 21 U.S.C. § 841(a)(1); 18 U.S.C. §
2; see also United States v. Johnson, 831 F.2d 124, 128 (6th
Cir. 1987) (“[T]he sale by a nonpractitioner of bogus
prescriptions which are in fact used to obtain controlled
substances is tantamount to the distribution of the substances
themselves and hence, is properly punishable as unlawful
distribution of drugs in violation of section 841(a)(1).”).
Further, although additional evidence was not required,
Boccone’s convictions were also supported by evidence set forth
above demonstrating that treatment of patients Dao, Rogers, and
Honesty, in concert with Brown, was outside the scope of
39
legitimate medical practice due to indicia of abuse, addiction,
and diversion. In addition, with respect to Gisin, Dr. Hamill-
Ruth opined that “[p]rescribing for this patient was
substandard,” due to inadequate documentation and evaluations
rendering prescriptions outside the bounds of usual medical
care. (JA 3838). Mumma also testified that in one instance
Boccone attempted to treat her for very high blood pressure by
bringing in during an appointment a “blister pack of medication”
and directing her to take one. (JA 453). When she refused, he
called her cardiologist and introduced himself as “Dr. Paul
Boccone.” (JA 454).
We have considered Boccone’s arguments challenging his
convictions for the distribution counts and find them
unavailing. While Boccone focuses on the lack of evidence that
he personally signed prescriptions for any of the charged
patients, such arguments do not take into account that Boccone’s
culpability rests on his conduct in directing or causing the
charged prescriptions, which, on the basis set forth above, is
supported by substantial evidence. His suggestion that medical
providers, and not Boccone, entered the directions in the
medical notes as cited above, rests upon drawing inferences from
circumstantial evidence in favor of the defense rather than the
government. Where Boccone’s name is designated in a timed
medical entry in the record, the jury reasonably may infer that
40
he conducted the medical visit, or participated in it, and then
entered the text of the entry. Further, Boccone’s contention
that other providers entered notes using his name is belied by
the fact that those same medical providers entered their own
notes in the medical record using their own names. (See, e.g.,
JA 1715-1717). Finally, Boccone’s contentions that treatment of
the patients in the charged offenses was in fact legitimate fail
for the same reasons we have rejected Brown’s challenges to the
convictions. 5
In sum, we conclude the evidence was sufficient to support
Boccone’s unlawful distribution convictions.
2.
We turn next to appellants’ convictions for conspiracy to
distribute controlled substances.
The drug conspiracy statute provides that “[a]ny person who
attempts or conspires to commit any offense defined in this
5
The court is in receipt of a letter submitted by Boccone’s
counsel post-argument, pursuant to Federal Rule of Appellate
Procedure 28(j). Under this subsection of the rule, titled
“Citation of Supplemental Authorities,” a party may submit such
a letter only “[i]f pertinent and significant authorities come
to a party’s attention after the party’s brief has been filed.”
Fed. R. App. P. 28(j). The submission here, however, does not
contain pertinent and significant authorities that came to
Boccone’s attention after his briefs were filed. Rather, it
contains citations to the record in reference to points made at
oral argument. We are thus not obligated to consider this
letter. In any event, the information provided in Boccone’s
letter does not alter the conclusions we reach above.
41
subchapter shall be subject to the same penalties as those
prescribed for the offense, the commission of which was the
object of the attempt or conspiracy.” 21 U.S.C. § 846. To
convict a defendant of conspiracy under this statute, the
government must establish three essential elements: (1) an
agreement to unlawfully distribute controlled substances existed
between two or more persons; (2) defendants knew of the
conspiracy; and (3) defendants knowingly and voluntarily became
a part of this conspiracy. See Burgos, 94 F.3d at 857.
“[I]t is not necessary to prove a formal agreement to
establish a conspiracy in violation of federal law; a tacit or
mutual understanding among or between the parties will suffice.”
McIver, 470 F.3d at 563 (quotation omitted). In addition,
“[t]he Government is not required to prove that a defendant knew
all his co-conspirators or all of the details of the
conspiracy.” United States v. Green, 599 F.3d 360, 367 (4th
Cir. 2010). In the context of unlawful distribution of
prescription drugs, conspiracy may be established where the
defendant “tacitly agreed with his patients to provide opioid
prescriptions without legitimate medical reasons for doing so.”
470 F.3d at 563. “The government can satisfy the knowledge
requirement by showing either that Appellant actually knew of
the conspiracy, or that he was willfully blind to it by
42
purposely closing his eyes to avoid knowing what was taking
place around him.” Id. (internal quotations omitted).
Much of the same evidence supporting the individual
distribution convictions also supports the conspiracy conviction
in this case. For example, the treatment of Dao, Rogers, and
Honesty, as detailed above, provides sufficient evidence of a
conspiracy to unlawfully distribute oxycodone, in light of
Boccone’s involvement in treatment decisions, in conjunction
with red flags showing that their treatment was outside the
scope of medical practice. In addition, the government’s
evidence demonstrated a conspiracy extending in scope to
treatment of other patients, such as Justin McConnell, whose
treatment at the hands of Boccone and Brown was similarly
outside the scope of medical practice. From this evidence, a
jury reasonably could conclude that appellants agreed with each
other and their patients to unlawfully distribute controlled
substances, and each knew of the conspiracy or was “purposefully
closing his eyes to avoid knowing what was taking place around
him.” McIver, 470 F.3d at 563.
Moreover, the government introduced further circumstantial
evidence that appellants entered into an agreement to distribute
prescriptions outside of medical practice. Such evidence
includes time limits placed on examinations by Boccone, scarcity
of physical exams, perfunctory visits for prescription refills
43
for large amounts of drugs, Boccone’s presence in examination
rooms during patient exams conducted by Brown and other
practitioners, close interaction between Boccone and Brown in
the office, Boccone’s processing of prescriptions and forgery of
signatures on prescriptions, Boccone’s reference to himself as
“doctor,” Brown’s conduct in signing prescriptions filled out by
Boccone or prescriptions in stacks while in exams with other
patients, and patients’ provision of gifts and services to
Boccone and Brown. (JA 128-29, 132-136, 138-39, 142-43, 165,
176, 187-88, 223-25, 257, 365, 368, 412-13).
In sum, considering together the treatment of individual
patients with evidence regarding the nature of the practice and
defendants’ role in the practice, sufficient evidence supported
the conspiracy convictions in this case.
3.
Boccone contends the evidence was insufficient to convict
him of health care fraud. The government charged Boccone with
violation of 18 U.S.C. § 1347, on the basis that he submitted a
claim to Medicare on November 3, 2009, knowing that licensed
medical provider had not performed services, particularly in
treatment of Dianne Gisin, on April 16, 2009.
The health care fraud statute provides that it is unlawful
to “knowingly and willfully execute[] . . . a scheme or artifice
(1) to defraud any health care benefit program; or (2) to obtain
44
by means of false or fraudulent pretenses, representations, or
promises, any of the money . . . [of] any health benefit
program, in connection with the delivery of or payment for
health care benefits, items, or services . . . .” 18 U.S.C. §
1347(a). The statute may be violated by a person who obtains
reimbursement from Medicare by means of false or fraudulent
statements on insurance claims. See McLean, 715 F.3d at 140.
“[T]he specific intent to defraud may be inferred from the
totality of the circumstances and need not be proven by direct
evidence.” Id. at 138.
The government introduced evidence that the person who
provided medical services for Gisin on April 16, 2009 was
Boccone, (JA 2576), whereas the provider billed to Medicare was
physician’s assistant Joe Frazier. (JA 3781-82). Considered in
conjunction with Gisin’s testimony that Boccone treated her,
this was sufficient for the jury to infer that solely Boccone
saw Gisin on that date and Frazier did not provide any medical
services. Because Boccone caused claims to be submitted to
Medicare falsely representing the provider who performed
services on the date charged, Boccone’s health care fraud
conviction is supported by substantial evidence.
Boccone argues that Medicare allows submission of a bill
for a visit with a member of a medical provider’s staff, noting
for example that Medicare billing code 99211 provides for an
45
office visit “not requir[ing] the presence of a physician,”
where “[u]sually, the presenting problem(s) are minimal.”
(Boccone Br. at 51-52). Notably, however, the billing code
submitted to Medicare in this case was 99215, not 99211. (JA
3781). In contrast to code 99211, code 99215 is reserved for
office visits requiring either a “comprehensive examination” or
“[m]edical decision making of a high complexity,” where “the
presenting problem(s) are of moderate to high severity,”
typically requiring 40 minutes spent face-to-face with the
patient. See American Medical Assoc., Current Procedural
Terminology (CPT), 10 (2009 Standard Ed.). Here the evidence
suggests the opposite – that no legitimate medical decisions
were made on April 16, 2009, much less decisions of high
complexity or following a comprehensive examination. This
further supports a determination that the bill which Boccone
submitted in this case included false and misleading information
regarding the nature of the provider and the services performed.
In sum, Boccone’s health care fraud conviction was
supported by substantial evidence.
46
4.
Boccone argues that the evidence was insufficient to
support his convictions for failure to pay over employment
taxes. 6
Under 26 U.S.C. § 7202,
Any person required under this title to collect,
account for, and pay over any tax imposed by this
title who willfully fails to collect or truthfully
account for and pay over such tax, shall, in addition
to other penalties provided by law, be guilty of a
felony and, upon conviction thereof, shall be fined
not more than $10,000, or imprisoned not more than 5
years, or both, together with the costs of
prosecution.
To secure a conviction under this statute for failure to pay
employment taxes, the government must prove that (1) defendant
has a duty to withhold and pay over employment taxes for the
employer, and (2) defendant willfully failed to perform one of
these tax-related duties. See United States v. Lord, 404 Fed.
6
Boccone also argues that the government failed to charge
him within a three-year statute of limitations period. Boccone,
however, waived this argument by not raising it before or during
trial. See United States v. Williams, 684 F.2d 296, 300 (4th
Cir. 1982). Boccone counters that the government itself has
waived any reliance on waiver by addressing the merits of his
argument in opposition to Boccone’s post-trial motion for
acquittal. But, to the extent this court has recognized such a
“waiver of waiver” argument, it has been in instances of
government “acquiescence” to the issue being raised on appeal.
United States v. Metzger, 3 F.3d 756, 757-58 (4th Cir. 1993).
The government did not so acquiesce in this case, because it
raised Boccone’s waiver in opposition to the motion for
acquittal and raised it again on appeal.
47
Appx. 773, 775 (4th Cir. 2010); United States v. Gilbert, 266
F.3d 1180, 1185 (9th Cir. 2001).
Here, the government introduced substantial evidence to
satisfy both elements of the offense. Concerning Boccone’s
duties, Boccone admitted to a government special agent that he
was responsible for withholding employment taxes from his
employees and for paying over such withholdings to the Internal
Revenue Service. (JA 478). He also had prior experience with
filing payroll tax forms and remitting employment taxes with his
former company, Berwyn Mortgage. (JA 3958-3968). Concerning
Boccone’s failure to pay, Boccone admitted at trial that he was
aware of the obligation to pay employment taxes withheld, and
there was no dispute that Boccone failed to pay the taxes due.
(JA 623, 759).
Boccone suggests, nonetheless, that his failure to pay was
not willful because there was no money available to pay them
when due. Contrary to Boccone’s suggestion, the government
introduced evidence that Chantilly Specialists had sufficient
funds to satisfy the tax obligations or there would have been
sufficient funds had other expenditures not been paid. (JA
4006-4336). “The intentional preference of other creditors
over the United States is sufficient to establish the element of
willfulness.” Turpin v. United States, 970 F.2d 1344, 1347 (4th
Cir. 1992) (internal quotations omitted). Even if other
48
expenditures were necessary for operation of the business, this
does not undermine a finding of willfulness. Indeed, “paying
wages and . . . satisfying debts to creditors in lieu of
remitting employment taxes to the IRS, constitute circumstantial
evidence of a voluntary and deliberate violation of § 7202.”
Lord, 404 F. App’x at 779.
In sum, the government introduced substantial evidence to
support the tax law convictions.
C.
Boccone argues that the prosecutor improperly commented on
his veracity during closing argument. Boccone did not object to
the prosecutor’s closing argument at trial. Accordingly our
analysis is “confined to plain error review.” United States v.
Woods, 710 F.3d 195, 202 (4th Cir. 2013). “Under this standard,
[appellant] must show not only that the district court committed
an error that was plain, but also that the error affected
[appellant’s] substantial rights thereby impacting the outcome
of his trial.” Id. (internal quotations omitted).
The prosecutor’s argument arose out of testimony by Boccone
at trial regarding his provision of a handwriting exemplar
during the investigation of the case. In relevant part, Boccone
testified as follows on re-direct examination:
Q. Did you go in voluntarily on your own to give
[Special Agent Walker] handwriting exemplars?
A. Yes, I did.
49
Q. Have you gotten any results?
A. No.
(JA 659-60) (emphasis added). During defense counsel’s closing
argument, counsel reminded the jury of this testimony, stating
as follows:
Mr. Boccone took the stand. Told you that he went
voluntarily on his own to Special Agent Walker, and
then for two to three hours give them handwriting
samples. Apparently they were thinking he forged
prescriptions. Now think about it. . . . Who wakes
up and walks off to the police station to give a
handwriting sample if they know that they’ve been
forging prescriptions? He goes in there to give a
handwriting sample.
(JA 781) (emphasis added).
After this argument concluded, the government asked to
correct the record in rebuttal to reflect that the handwriting
exemplar in fact “was done pursuant to a grand jury subpoena.”
(JA 792). Counsel for Boccone thereupon requested an
opportunity to clarify himself “in respect to the handwriting
exemplar, it was pursuant to a grand jury subpoena,” which
request the court allowed. (Id.). At that point, counsel for
Boccone concluded his argument by stating to the jury: “[W]ith
respect to the handwriting exemplars, the grand jury issued a
subpoena for Mr. Boccone to give his handwriting exemplars, and
he went and gave the handwriting exemplars pursuant to the grand
jury subpoena to Special Agent Walker.” (JA 793) (emphasis
added).
50
Subsequently, upon rebuttal, the prosecution stated as
follows to the jury:
Ladies and gentlemen, we now know that Paul Boccone
gave a handwriting exemplar pursuant to a grand jury
subpoena when he told you during his sworn testimony
that it was voluntarily. What else in Paul Boccone’s
testimony under oath is false, ladies and gentlemen?
(JA 811).
Boccone suggests that this argument was improper because
(1) Boccone in fact testified truthfully that he voluntarily
gave a handwriting exemplar, and (2) the prosecutor’s statement
constitutes an improper expression by the prosecutor as to the
veracity of a defense witness.
With respect to the first challenged statement by the
prosecutor, there was no impropriety in reminding the jury that
Boccone gave the exemplar “pursuant to a grand jury subpoena”
whereas in his testimony he stated that “it was voluntarily.”
(JA 811). This is consistent with the correction made by
Boccone’s own counsel. (JA 793). It is also consistent with the
evidence. In particular, Boccone gave the exemplar after the
investigating attorney informed Boccone’s counsel that the grand
jury had issued a subpoena for the defendant’s handwriting. (JA
938). Boccone was in fact served with the subpoena. (JA 940).
While Boccone points out on appeal that the subpoena was not
served on Boccone until he arrived at the police station, it is
nonetheless accurate to state that the exemplar was given
51
“pursuant to a grand jury subpoena.” (JA 811). Accordingly,
the first challenged statement in the prosecutor’s argument was
not improper.
The second challenged statement in the prosecutor’s
argument, by contrast, may have exceeded the bounds of fair
advocacy. This court has “recognized that it is highly improper
for the government to refer to a defense witness as a liar.”
United States v. Moore, 11 F.3d 475, 481 (4th Cir. 1993); see,
e.g., Woods, 710 F.3d at 202 (prosecutor improperly stated that
defendant “lied . . . under oath when he testified this
morning”). Although the prosecutor did not expressly call the
defendant a “liar,” the prosecutor’s argument clearly
communicated to the jury the prosecutor’s view that defendant
lied under oath.
We need not decide, however, whether the prosecutor’s
argument constituted error. Even assuming that it did, and the
error was plain, we conclude the error did not affect Boccone’s
“substantial rights.” Id. “When the evidence of guilt is
overwhelming and a perfect trial would reach the same result, a
substantial right is not affected by a particular error. Id.
(internal quotations omitted). In undertaking this analysis, we
have considered the following well-established factors:
(1) the degree to which the prosecutor’s remarks have
a tendency to mislead the jury and to prejudice the
accused; (2) whether the remarks were isolated or
52
extensive; (3) absent the remarks, the strength of
competent proof introduced to establish the guilt of
the accused; and (4) whether the comments were
deliberately placed before the jury to divert
attention to extraneous matters.
Id. (quotations omitted).
Here, accepting that the challenged argument by the
prosecution had a tendency to mislead the jury and prejudice
Boccone, the remarks nonetheless were made in conjunction with
an express correction by Boccone’s own counsel regarding
Boccone’s testimony. Thus, even if the prosecution had not made
the challenged argument, the jury had an independent basis to
question whether Boccone had been fully truthful in his
testimony. In addition, while the remarks came at a prominent
point at the culmination of the closing argument, they were
brief relative to the length of the argument as a whole.
Further, the government’s evidence against Boccone was
overwhelming and was supported by multiple categories of
evidence, each independently supporting the convictions,
including medical records demonstrating Boccone’s involvement in
treatment of patients and the nature of the prescriptions he
directed, testimony from patients, and testimony and records
regarding Boccone’s office practices. Even assuming that
Boccone had not forged prescriptions, sufficient evidence
demonstrated that Boccone conspired to and directed distribution
of controlled substances outside the bounds of medical practice.
53
Finally, in light of the correction by defense counsel,
there is no indication that the comments were deliberately
placed before the jury to divert attention from the evidence in
this case.
In sum, although part of the challenged prosecution
argument may have been improper, any error resulting therefrom
does not warrant reversal of Boccone’s conviction.
D.
Boccone and Brown challenge the district court’s sentencing
determination. We address first their contention that the
district court failed to adequately explain the sentence given.
“We review a sentence for abuse of discretion.” United
States v. Bell, 667 F.3d 431, 440 (4th Cir. 2011). As part of
this review, we must
“ensur[e] that the district court committed no
significant procedural error, such as failing to
calculate (or improperly calculating) the Guidelines
range, treating the Guidelines as mandatory, failing
to consider the § 3553(a) factors, selecting a
sentence based on clearly erroneous facts, or failing
to adequately explain the chosen sentence—including an
explanation for any deviation from the Guidelines
range.”
United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010)
(quoting Gall v. United States, 552 U.S. 38, 51 (2007)).
With respect to the explanation provided by the district
court, “[r]egardless of whether the district court imposes an
above, below, or within-Guidelines sentence, it must place on
54
the record an individualized assessment based on the particular
facts of the case before it.” Bell, 667 F.3d at 442 (quotations
omitted). “The explanation must be sufficient to allow for
meaningful appellate review, such that the appellate court need
not guess at the district court’s rationale.” Id. (internal
quotations omitted). This court previously has observed that
“[w]ithout an affirmative showing the information [in the
presentence report] is inaccurate, the court is free to adopt
the findings of the [presentence report] without more specific
inquiry or explanation.” United States v. Terry, 916 F.2d 157,
162 (4th Cir. 1990) (internal quotations omitted).
In setting forth the reasons for the sentence in this case,
the district court stated as follows with respect to Boccone:
All right. Well, Mr. Boccone, I find the guideline
factors in this case to be properly assessed at a
range of 360 months to life. That because of your
financial condition, the imposition of any fine or
cost is not warranted. But considering your age and
prior record and the nature of this offense, I find
that a sentence somewhat below the guideline range
would be appropriate. It will be the sentence of the
Court that as to Counts, 1 to 5, 7, and 9, you be
committed to the custody of the Attorney General to
serve a term of 180 months . . . .
(JA 1124). The court imposed lesser concurrent terms of
imprisonment for the remaining counts of conviction. For Brown,
the district court stated only:
All right. Well, I find the guideline factors in this
case to be properly assessed at a range of 188 to 235
months. I also find because of your financial
55
condition, Mr. Brown, that the imposition of any fine
or cost is not warranted. And in considering the
factors under Section 3553, which I must, considering
your – the facts of this case and the extent of your
involvement, I find that a sentence below the low end
of the guideline range would be appropriate. It will
be the sentence of the Court, as to Counts, 1, 2, 7,
and 9, you be committed to the custody of the Attorney
General to serve a term of 60 months . . . .
(JA 1103-04).
The district court’s explanation for the sentence was
lacking in several respects. In particular, the district court
failed to explain adequately the application of each of the
statutory sentencing factors, and to provide “an ‘individualized
assessment’ based on the particular facts of the case before it”
of the basis for the substantial downward variance imposed.
Bell, 667 F.3d at 442. The district court’s cursory reference
to statutory factors, with mention of “age and prior record and
the nature of this offense” for Boccone, and “the facts of this
case and the extent of . . . involvement” for Brown, (JA 1103,
1124), does not explain how these factors for each defendant
apply to warrant a downward variance, leaving us to “guess at
the district court’s rationale.” Bell, 667 F.3d at 442.
In addition, while we can glean from the court’s
explanation that the district court adopted in toto the findings
and conclusions in the presentence report, the district court’s
failure to explain why it did so is procedurally unreasonable.
The district court did not discuss the objections and arguments
56
raised by appellants prior to and during the sentencing hearing,
including their specific contentions that the drug quantity
calculations and corresponding offense level determinations
contained in the presentence reports were not correct, and
Boccone’s objection to application of a sentencing enhancement.
(See JA 1057, 1096, 1117, 4434, 4384).
This court has not previously decided how much “more
specific inquiry or explanation” is required, as suggested by
Terry, 916 F.2d at 162, when a district court adopts findings in
a presentence report over objections and arguments by a
defendant. See United States v. Montes-Pineda, 445 F.3d 375,
380 (4th Cir. 2006) (“[A] district court’s explanation should
provide some indication . . . that the court considered . . .
the potentially meritorious arguments raised by both parties
about sentencing.”). We need not decide this question here,
however. As set forth below, assuming the district court did not
sufficiently explain the sentence imposed, this error is
harmless under the circumstances of this case.
“[P]rocedural errors at sentencing are routinely subject to
harmlessness review.” Lynn, 592 F.3d at 576 (quotations
omitted). When the court commits a procedural error in failing
to explain a sentence given, the government may avoid reversal
if the error “did not have a substantial and injurious effect or
influence on the” result and the court can “say with . . . fair
57
assurance that the district court’s explicit consideration of
[the defendant’s] arguments would not have affected the sentence
imposed.” Id. at 585 (quotations and citations omitted).
In applying this harmless error review, we find persuasive
the court’s treatment of a procedural error in United States v.
Cox, 460 Fed. App’x 248, 250 (4th Cir. 2012). There, the court
reasoned:
In this case, the district court erred by providing no
explanation for the length of the active prison term
it imposed upon Cox. We conclude, however, that the
Government met its burden to show that this error was
harmless. Because Cox received a substantial downward
variance, we conclude the district court's inadequate
explanation ‘did not have a substantial and injurious
effect or influence on the result’ of the sentencing
proceeding. Furthermore, Cox's arguments in support of
a 120–month sentence were without legal merit,
allowing us to conclude with ‘fair assurance that the
district court's explicit consideration of those
arguments would not have affected the sentence
imposed.’
Id. (quoting Lynn, 592 F.3d at 585).
In this case, as in Cox, because appellants received
significant downward variances, the district court’s failure to
adequately explain application of the sentencing factors “did
not have a substantial and injurious effect or influence on the
result” of the sentencing proceeding. Lynn, 592 F.3d at 585
(internal quotations omitted). In addition, the district
court’s failure to set forth reasons for adopting the guidelines
range set forth in the presentence report, including failure to
58
address appellants’ arguments as to the calculation of the
guidelines range, was harmless because these arguments are
without merit, as we set forth below. As such, we may conclude
with “fair assurance that the district court’s explicit
consideration of those arguments would not have affected the
sentence imposed.” Lynn, 592 F.3d at 585 (internal quotations
omitted). 7
Accordingly, we turn next to address appellants’ arguments
as to the guidelines range calculation.
1.
Appellants first argue, as they did before the district
court, that the court incorrectly calculated the drug quantity
7
We find inapposite prior cases, including those cited by
appellants, in which the court has remanded for resentencing
despite the district court’s award of a downward variance. In
those cases, unlike here, the court remanded after finding clear
error in the calculation of a guidelines range. See, e.g.,
United States v. Gomez, 690 F.3d 194, 203 (4th Cir. 2012)
(remanding where district court failed to properly calculate
guidelines range); United States v. Napan, 484 F. App’x 780,
781-82 (4th Cir. 2012) (remanding where the district court
misapplied an enhancement, despite award of downward variance).
Nor does this case involve a variance without explanation in the
direction opposite to that requested by the appellant. See,
e.g., Lynn, 592 F.3d at 582 (remanding where district court
provided “no explanation at all for a substantially above-
Guidelines sentence”); United States v. Engle, 592 F.3d 495, 503
(4th Cir. 2010) (remanding where the government appealed
downward variance imposed without sufficient explanation).
59
used to determine their base offense level under the sentencing
guidelines.
We review “the district court’s calculation of the quantity
of drugs attributable to a defendant for sentencing purposes for
clear error.” United States v. Slade, 631 F.3d 185, 188 (4th
Cir. 2011). In other words, the court must be “left with the
definite and firm conviction that a mistake has been committed.”
United States v. Stevenson, 396 F.3d 538, 542 (4th Cir.2005).
“The Government must prove by a preponderance of the
evidence the amount of controlled substances attributable to a
defendant.” United States v. Carter, 300 F.3d 415, 425 (4th
Cir. 2002). In calculating drug quantity, “a sentencing court
may give weight to any relevant information before it, including
uncorroborated hearsay, provided that the information has
sufficient indicia of reliability to support its accuracy.”
United States v. Crawford, 734 F.3d 339, 342 (4th Cir. 2013)
(quoting United States v. Wilkinson, 590 F.3d 259, 269 (4th
Cir.2010)).
In the context of a drug conspiracy, a “defendant is
responsible not only for his own acts, but also for ‘all
reasonably foreseeable acts’ of his co-conspirators in
furtherance of the joint criminal activity.” Slade, 631 F.3d at
188. A defendant is “accountable for all quantities of
contraband with which he was directly involved and all
60
reasonably foreseeable quantities of contraband that were within
the scope of the criminal activity that he jointly undertook.”
Bell, 667 F.3d at 441 (quoting U.S.S.G. § 1B1.3 cmt. n.2).
According to the presentence report adopted by the district
court, Brown was responsible for the equivalent of 12,453
kilograms of marijuana, based upon 100% of the prescription
amount provided to patients Honesty, Dao, Rogers, and McConnell
after he commenced work at Chantilly Specialists in July, 2009.
(JA 4438). Boccone was responsible for the equivalent of 18,155
kilograms of marijuana, representing the medications prescribed
to Honesty, Dao, and Rogers for the entirety of their care,
under the direction of Boccone. Where these drug weights
exceeded an equivalent of 10,000 kilograms of marijuana, both
Boccone and Brown were subjected to a base offense level of 36.
See U.S.S.G. § 2D1.1.
The evidence presented by the government at trial was
sufficient to establish that Boccone and Brown conspired to
unlawfully distribute controlled substances to Honesty, Dao, and
Rogers, outside the bounds of medical practice and not for a
legitimate medical purpose during the time that they were
involved with treatment of these patients. Whether or not
Boccone or Brown individually saw these patients during each
visit to Chantilly Specialists is not dispositive of the drug
quantity calculation where they each knew, or reasonably should
61
have known, that the entire course of treatment was beyond the
scope of legitimate medical practice. See McIver, 470 F.3d at
563. The illegitimacy of the entire course of treatment is
supported not only by the report and testimony by Dr. Hamill-
Ruth, but also by Boccone’s role in directing the treatment as a
non-medical professional.
In addition, although McConnell’s treatment was not
addressed in the report of Dr. Hamill-Ruth, the government
offered sufficient evidence at trial that Brown treated
McConnell outside the scope of legitimate medical practice, in
disregarding many of the same indicia of abuse and diversion
present with Honesty, Dao, and Rogers. For example, McConnell
did not provide prior treatment records upon beginning treatment
at Chantilly (JA 184), Brown treated McConnell without ever
having given him a physical exam (JA 189), and his prescriptions
increased significantly over time leading to an addiction. (JA
190, 193). In addition, Brown made untoward physical contact
and personal calls to McConnell that impacted the treating
relationship. (JA 192-93). Boccone also was involved in
directing prescriptions. (JA 197-98). The presentence report
noted all these facts, in addition to others obtained based upon
an investigative interview report, regarding adjustments made by
Brown in prescriptions and Brown’s promise to keep prescribing
him 30 milligram oxycodone pills. (JA 4410).
62
In sum, the drug weight calculation by the district court
properly was supported by an aggregation of quantities of
controlled substances distributed to Honesty, Dao, Rogers, and
McConnell, where treatment of these patients was outside the
scope of legitimate medical practice.
Appellants argue on appeal that the district court’s drug
calculations were erroneous because the court did not follow the
calculation methods set forth by the Fourth Circuit in Bell.
There, defendants pleaded guilty to offenses including
conspiracy to possess with intent to distribute oxycodone, which
they obtained through prescriptions while patients at a pain
management center. Bell, 667 F.3d at 434 & 435. This court
held that the district court did not adequately explain the
basis for the sentence, particularly drug quantity, where the
district court based drug quantity on the amount of
prescriptions received by each patient. Id. at 439-441. The
court noted that, generally, “[w]here there is no evidence that
any of the drugs obtained by members of a conspiracy were
obtained or possessed legally, all reasonably foreseeable
quantities possessed . . . may be considered ‘relevant conduct’
attributable to that defendant.” Id. at 442. But, in “a case
involving a valid prescription,” the court noted,
if . . . the government wishes to use the total
quantity prescribed to one or more conspiracy members
as evidence of the quantity of ‘contraband ... within
63
the scope of the [conspiracy],’ it must also provide
evidence, and the district court must make a finding,
of something more — for example . . . that the
conspiracy actually distributed a particular amount[,]
[or] that the person who was prescribed the drug
lawfully kept and consumed only a portion (or none) of
the prescribed amount . . . . ”
Id. at 443 (quoting U.S.S.G. § 1B1.3 cmt. n.2). Appellants
contend the district court erred by failing to make any such
findings in this case. We disagree.
Bell is inapposite for several reasons. First, in Bell,
“there [was] no dispute that [defendant] received her pills
using a valid prescription issued to her by physicians at a
single institution.” Id. at 444 (emphasis added). Just the
opposite was true in the present case, where the government
introduced evidence demonstrating that the prescriptions issued
to Dao, Honesty, Rogers, and McConnell were not valid
prescriptions. While appellants contend that these patients
made use of some or most of their prescriptions to provide
relief for their medical conditions, this fact does not
transform an otherwise unlawful prescription issued outside the
scope of medical practice into a valid one.
Second, the defendants in Bell pleaded guilty on the basis
that they, as patients, distributed oxycodone that they had
already received from a pain management center. By contrast,
appellants here were convicted of issuing prescriptions outside
the scope of medical practice. Whether patients in Bell
64
actually ingested the medication could be determinative to
whether they in fact distributed the medication to others. See
id. at 443. Here, by contrast, whether the patients actually
consumed the prescription drugs in question is not itself
determinative of whether the prescriptions were made outside the
scope of medical practice. Indeed, evidence that the patients
in this case ingested excessive quantities of pain medication
over an extended time period was itself an indicia of addiction
further demonstrating illegitimacy of the prescriptions.
Finally, unlike in Bell, the district court in this case
adopted the guidelines range in the presentence report that was
based on a detailed drug quantity calculation as set forth in
the presentence report. In contrast, the district court in Bell
picked a round number below that calculated in the presentence
report, without offering any specific explanation for why that
number was chosen. Id. at 444. Accordingly, the presentence
report in Bell provided no basis, as it did in this case, for
the drug quantity calculation by the district court.
Based on the foregoing, we reject appellants’ argument that
we must vacate the sentence for further fact finding and
explanation regarding the calculation of drug quantity.
Although the district court erred in failing to adequately
explain its reasons for the sentence given, this error was
harmless where we can determine based on the presentence report
65
adopted by the court that there was no clear error in the
calculation of drug quantity.
2.
Boccone challenges the four-point enhancement under §
3B1.1(a), for his role as a leader in the conspiracy. The court
“review[s] a district court’s decision to apply a sentencing
adjustment based on a defendant’s role in the offense for clear
error.” United States v. Sayles, 296 F.3d 219, 224 (4th Cir.
2002).
To qualify for a four-level increase under § 3B1.1(a) of
the Sentencing Guidelines, a defendant must have been “an
organizer or leader of a criminal activity that involved five or
more participants or was otherwise extensive.” § 3B1.1(a).
“Factors the court should consider include the exercise of
decision making authority, the nature of participation in the
commission of the offense, the recruitment of accomplices, the
claimed right to a larger share of the fruits of the crime, the
degree of participation in planning or organizing the offense,
the nature and scope of the illegal activity, and the degree of
control and authority exercised over others.” Id. Application
Note 4.
In applying this enhancement, we look to “whether the
defendant’s role was that of an organizer or leader of people,
as opposed to that of a manager over the property, assets, or
66
activities of a criminal organization.” United States v.
Llamas, 599 F.3d 381, 390 (4th Cir. 2010) (internal quotations
omitted). The enhancement “is appropriate where the evidence
demonstrates that the defendant controlled the activities of
other participants or exercised management responsibility.” Id.
(internal quotations omitted).
For example, in United States v. Ellis, 951 F.2d 580 (4th
Cir. 1991), the court examined application of the enhancement to
a scheme to corruptly secure the passage of legislation in West
Virginia. Although the corrupt scheme involved only four
participants, the court upheld the application of the § 3B1.1(a)
enhancement because the unknowing services of lobbyists,
legislators, and their staffs advanced the criminal activity.
Ellis, 951 F.2d at 585. The court observed that “[i]n
considering whether an activity is ‘otherwise extensive,’ a
court may consider, as it did here, ‘all persons involved during
the course of the entire offense,’ even the ‘unknowing services
of many outsiders.’” Id. (quoting § 3B1.1, cmt. n.2).
In this case, the evidence at trial strongly supported a
determination that Boccone was both the organizer and the leader
of the charged conspiracy to distribute controlled substances.
Although the presentence report does not identify five or more
67
participants in the conspiracy, 8 there is ample evidence that the
criminal activity was extensive. As noted in the presentence
report:
The defendant was the president of Chantilly
Specialists and the owner from December 2005 until
March 2010. He ran Chantilly Specialists’ day-to-day
operations, hired and directed employees, approved
payments by the company, signed payroll checks, and
made financial decisions on behalf of the company.
Additionally, the evidence revealed Boccone, despite
having no medical training or knowledge, saw patients
and made decisions regarding the prescription of
Schedule II controlled substances.
(JA 4362). In addition, although many employees of Chantilly
Specialists may not be culpable enough to be considered
“participants” in the conspiracy, they were still involved as
unwitting providers of support to the conspiracy in allowing
prescription of medications to patients over an extended period
of time without a legitimate medical purpose and outside the
usual scope of medical practice. Likewise, the number of
patients involved, whether those patients were aware of their
abuse or unwittingly receiving illegitimate prescriptions, also
8
The presentence report identifies only three other
participants in the criminal conspiracy, Brown, Dr. Anthony
Fasano, and physician’s assistant Joe Frazier. Although the
government suggests that patients such as Honesty and Dao also
were participants, the presentence report concludes that Boccone
did not direct or manage their activities. In light of our
conclusion above that the criminal activity was “otherwise
extensive,” we need not address here whether the criminal
activity “involved five or more participants.” § 3B1.1(a).
68
augmented the scope and significance of the illegal activity
under leadership of Boccone. Accordingly, because Boccone
exhibited authority and control over both office employees and
patients in furtherance of his criminal activity, the district
court correctly applied the four-level enhancement for Boccone’s
role as a leader in the conspiracy.
In sum, where appellants have not raised any meritorious
arguments impacting the guidelines calculation, and where the
district court awarded a substantial downward departure from the
guidelines range, we find harmless the district court’s error in
failing to explain adequately the sentence given.
III.
Based on the foregoing, appellants’ convictions and
sentences are
AFFIRMED.
69