United States v. David Garrison

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-50137
Plaintiff-Appellee,
D.C. No.
v. 2:11-cr-00922-DDP-6
DAVID JAMES GARRISON,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Central District of California
Dean D. Pregerson, District Judge, Presiding
Submitted March 6, 2018 *
Pasadena, California
Filed April 25, 2018
Before: Ronald M. Gould and Mary H. Murguia, Circuit
Judges, and Dana L. Christensen, ** Chief District Judge.
Opinion by Judge Gould
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
**
The Honorable Dana L. Christensen, Chief United States District
Judge for the District of Montana, sitting by designation.
2 UNITED STATES V. GARRISON
SUMMARY ***
Criminal Law
The panel affirmed a conviction for conspiracy to
distribute controlled substances in violation of 21 U.S.C.
§ 846, in a case in which the government offered evidence
that the defendant and his co-conspirators had abused their
positions as healthcare providers by intentionally
prescribing OxyContin for no legitimate medical purpose as
part of a scheme to sell the drug on the street.
The panel held that the evidence was sufficient to allow
a reasonable jury to draw the inference that the defendant
was prescribing OxyContin with the intent to do so for no
legitimate purpose, and was sufficient to lead a reasonable
jury to conclude that the defendant had agreed to further the
scheme to illicitly distribute OxyContin.
The panel also held that there is no error in the remedies
the trial court crafted for the government’s late disclosures
or in the jury instructions the court gave regarding the abrupt
departure of two co-defendants from the trial and the
dismissal of charges against a third co-defendant.
***
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. GARRISON 3
COUNSEL
Michael R. Belter (argued), Salinas, California, for
Defendant-Appellant.
Angela J. Davis, Assistant United States Attorney, Major
Frauds Section; Lawrence S. Middleton, Chief, Criminal
Division; United States Attorney’s Office, Los Angeles,
California; for Plaintiff-Appellee.
OPINION
GOULD, Circuit Judge:
After a jury trial, David James Garrison was convicted
of conspiracy to distribute controlled substances in violation
of 21 U.S.C. § 846. During trial, the government offered
evidence that Garrison and his co-conspirators had abused
their positions as healthcare providers by intentionally
prescribing OxyContin, a powerful opioid pain reliever, for
no legitimate medical purpose as part of a scheme to sell the
drug on the street. Garrison appeals his conviction, arguing
(1) that there was insufficient evidence to support his
conviction, and (2) that the district court should have
dismissed the charges against him, acquitted him, or granted
him a mistrial because the government did not timely
disclose certain information. We affirm.
I
There is now an epic crisis of deadly opioid abuse and
overuse. In 2016, roughly 11.5 million people in the United
States misused prescription opioids. U.S. Dep’t of Health
and Human Services, About the U.S. Opioid Epidemic
(2018), https://www.hhs.gov/opioids/about-the-epidemic/
4 UNITED STATES V. GARRISON
(last visited March 8, 2018). That same year, 116 people on
average died every day from opioid-related drug overdoses.
Id. And in 2017, the Acting Secretary of Health and Human
Services declared the national opioid abuse epidemic a
public health emergency. U.S. Dep’t of Health and Human
Services, HHS Acting Secretary Declares Public Health
Emergency to Address National Opioid Crisis (2017),
https://www.hhs.gov/about/news/2017/10/26/hhs-
acting-secretary-declares-public-health-emergency-
address-national-opioid-crisis.html (last visited March 8,
2018).
In the midst of this crisis, we trust doctors and healthcare
professionals to be conscientious gatekeepers to these
dangerous and potentially fatal drugs. But unfortunately
some medical professionals betray their duty to do no harm
as healthcare providers and abuse their prescription pads.
This is exactly what happened at the Lake Medical Group
clinic (the “Clinic”), where Garrison worked as a licensed
physician’s assistant from summer 2009 until the Clinic was
closed in February 2010.
The Clinic was what is often described as a “pill mill,”
and the activities of people working there led to the illicit
street-sale of more than a million maximum-strength
OxyContin tablets. From August 2008 to September 2010,
the Clinic generated 13,207 prescriptions for OxyContin—
all but six of which were for the drug’s maximum dosage.
The Clinic employed “patient recruiters” who induced
people living in homeless shelters and rescue missions to
visit the Clinic. These of course were not true “patients” in
the ordinary sense of that word. The Clinic would then use
the names and Medicare or Medi-Cal cards of the recruited
patients to generate fraudulent OxyContin prescriptions.
The recruited patients did not retain the OxyContin that they
UNITED STATES V. GARRISON 5
were prescribed. Instead, people working for the Clinic
retrieved the drug from participating pharmacists or from the
recruited patients, and the Clinic operators then had the pills
sold illegally. The government learned of the Clinic’s
operations and took steps to shut the Clinic down and
prosecute those it believed responsible for the scheme.
A
On September 28, 2011, Garrison and eleven other
codefendants were indicted. Garrison was indicted for
conspiracy to distribute controlled substances in violation of
21 U.S.C. § 846, based on his alleged role in the conspiracy
to distribute OxyContin for no legitimate medical purpose. 1
A second superseding indictment was filed, and the case
proceeded to trial. Garrison was tried with four alleged co-
conspirators: Elza Budagova, who acted as a medical
assistant at the Clinic, and pharmacists Theodore Yoon, Phic
Lim, and Perry Tan Nguyen.
An expert testified that there were indications from the
Clinic’s medical files that the prescriptions from the Clinic
were not for a proper medical purpose. Many files had
minimal patient histories and in other files the patient
histories were virtually identical, indicating that they had
been forged. Further, there was expert testimony that
immediately prescribing maximum strength OxyContin, as
was done at the Clinic, was not a proper medical practice.
At trial, the government offered documentary and
testimonial evidence against Garrison. Garrison stipulated
1
Other codefendants were charged with conspiracy to commit
health care fraud, 18 U.S.C. § 1349; unlicensed wholesale distribution of
prescription drugs, 21 U.S.C. §§ 331(t), 333(b)(1)(D), 353(e)(2)(A); and
aiding and abetting, 18 U.S.C. § 2.
6 UNITED STATES V. GARRISON
that he wrote and signed hundreds of prescriptions for
OxyContin with similar diagnoses on the prescription pads
of other medical professionals. Garrison also agreed that it
was his handwriting on numerous prescriptions for
OxyContin that appeared to have been pre-signed by other
persons working at the Clinic. He also signed and left blank
prescription forms in his own name, apparently for the use
of others in making prescriptions to the phony patients.
Recruited patients testified at trial that they had never
been examined by anyone at the Clinic, yet their medical
files reflected that they had been given an OxyContin
prescription in Garrison’s handwriting, though on other
physicians’ prescription pads. There was also video
evidence of Garrison prescribing OxyContin to a person
posing as a recruited patient after a six minute interaction. A
medical expert testified that there was no medical need for
that OxyContin prescription.
Garrison also lied to an investigator about the extent of
the physician oversight he received at the Clinic—claiming
that almost all of his patient examinations were signed off on
by a physician, whereas the investigator found that the vast
majority of Garrison’s examinations were not cosigned by a
licensed physician.
Two cooperating witnesses testified against Garrison:
Eleanor Santiago and Julie Shishalovsky. Santiago, a former
licensed physician, had pled guilty to health care fraud after
falsifying Medi-Cal claims while she was working at the
Clinic. Santiago testified that the Clinic was a pain
management clinic with a focus on people suffering from
chronic pain, which meant that many of the patients had
already tried to use less intense pain medications. She
testified that Garrison saw patients without her oversight and
that Garrison had prescribed OxyContin on a prescription
UNITED STATES V. GARRISON 7
slip that Santiago had pre-signed. Santiago also testified that
Garrison would sometimes give her medical charts to cosign,
and that she had noticed that he had prescribed all his
patients OxyContin. She told Garrison that some of the
patients did not need that drug, but he continued prescribing
OxyContin for them anyway.
Shishalovsky worked as a receptionist at the Clinic and
testified that the Clinic’s operators directed that all of the
Clinic’s patients should be prescribed the highest strength
OxyContin, even when there was no need for OxyContin.
She also testified that Garrison completed pre-signed
prescriptions “very often,” and also pre-signed his own
prescriptions.
Garrison made extensive efforts to impeach the
credibility of both of these witnesses, stressing that they both
had criminal records and had engaged in fraudulent conduct
in the past. Garrison did not call any witnesses of his own
in his defense. Garrison’s main line of defensive argument
was that he was not aware of the conspiracy and that he did
not knowingly participate in the conspiracy.
B
Before and during trial, the government made grave
mistakes in its prosecution of the case by repeatedly failing
to timely disclose information to the defense, as was required
by law. First, a witness who testified at trial, Bernard Harris,
admitted at trial that he had submitted a false medical report
to his probation officer and to a judge, and Harris said that
Santiago and Shishalovsky helped him fabricate the record.
The government questioned Santiago about Harris’s
statement the morning before she testified, and she admitted
that she had helped falsify the medical records. But the
government did not turn over its notes documenting
8 UNITED STATES V. GARRISON
Santiago’s statement to the defense, although it questioned
Santiago about assisting in the falsification during her trial
testimony. Santiago testified that she had helped falsify a
letter regarding Harris’s medical records. Shishalovsky also
admitted during trial to falsifying medical records, and the
government stated that Shishalovsky had told them about
this months before trial, although, the interview report from
that discussion did not contain this pertinent disclosure.
Also, the government delayed turning over to the defense
documents relating to Shishalovsky’s plea negotiations with
the government until a couple of days before Shishalovsky
testified. The government has conceded that it should have
turned over this information much sooner pursuant to Giglio
v. United States, 405 U.S. 150 (1972), which requires the
disclosure of promises made to witnesses in exchange for
their testimony. Importantly, the newly-disclosed
negotiations informed the defense for the first time that in
exchange for testimony, the government agreed that
Shishalovsky would be able to continue working in the
healthcare field. The government failed to disclose this
agreement, either during Shishalovsky’s sentencing or
during her direct testimony at trial. The district judge was
also belatedly informed of this agreement, and during a
break in Shishalovsky’s testimony the court advised the jury
of the government’s and Shishalovsky’s failure to disclose
this agreement, and told the jury that it could consider this
background in evaluating Shishalovsky’s credibility. The
judge also commented to the jury on the irregularity of the
agreement.
There were other problems with disclosure. Matthew
Cho was an alleged co-conspirator and a former pharmacist.
Cho and two other codefendants, Yoon and Lim, entered into
UNITED STATES V. GARRISON 9
a joint defense agreement. 2 Shortly before trial, Cho’s
counsel emailed a letter to the government and to counsel for
Yoon and Lim that appeared to cover information shielded
by the joint defense agreement. The government then
realized that other letters that it had received from Cho’s
counsel might also contain information that should have
been protected under the joint defense agreement.
The government also learned that Cho had been
forwarding confidential information that was potentially
covered by the joint defense agreement to his FBI agent
brother. Those emails concerned how Cho might get a deal
from prosecutors in exchange for his testimony. The district
court characterized those emails as material that should have
been turned over pursuant to Brady v. Maryland, 373 U.S.
83 (1963), which requires a prosecutor to turn over
potentially exonerating evidence to the defense. The
government agreed that it did not timely inform the defense
of Cho’s discussions with his FBI agent brother. Cho was
not called as a trial witness.
Weeks into trial, the government moved to dismiss its
charges against Yoon and Lim. The government conceded
that it had repeatedly failed to timely turn over Brady and
Giglio evidence, and that it accepted Yoon’s and Lim’s
counsel’s representation that Cho’s counsel had wrongfully
disclosed evidence that prejudiced Yoon and Lim. The
district court granted the motion and also dismissed the
charges against pharmacist defendant Nguyen that had also
2
A joint defense agreement extends attorney-client privilege to
disclosures made between the attorneys for codefendants, between
codefendants, and between one codefendant to another codefendant’s
attorney. See United States v. Gonzalez, 669 F.3d 974, 978 (9th Cir.
2012).
10 UNITED STATES V. GARRISON
been brought against Yoon and Lim, leaving only the charge
against Nguyen for financial structuring of transactions to
avoid reporting requirements in violation of 31 U.S.C.
§ 5324(a)(3). The district court then gave an instruction
telling the jury not to read anything into the fact that Yoon
and Lim were no longer part of the case and that counts had
been dismissed against Nguyen.
Garrison moved for a dismissal or mistrial arguing that
the government’s discovery violations prejudiced him and
that Yoon’s and Lim’s sudden absences from the trial
inescapably would lead the jury to assume that Garrison was
guilty. Although the government conceded that it had failed
to timely produce all of the material to which the defense
was entitled, it argued that any prejudice would be cured by
jury instructions. The government also noted that Garrison
was not a party to the joint defense agreement. The district
court denied Garrison’s motion.
At the close of trial, the district court instructed the jury
by advising of the government’s failure to timely comply
with its constitutional obligations, and telling the jury that it
could draw adverse inferences from this failure. The court
also advised the jury that this consideration could lead the
jury to find reasonable doubt as to Garrison’s and his
codefendants’ guilt. 3 The jury was again instructed not to
3
The instruction the district court gave was as follows:
Under the United States Constitution, in order for the
defendant to receive a fair trial, the Government must
inform the Defense of any information known to the
Government that tends to suggest the defendant might
not have committed the crimes or crime charged . . .
and any information that casts doubt on the credibility
of the Government’s own evidence. In this case, the
UNITED STATES V. GARRISON 11
speculate as to the reason for Yoon’s and Lim’s absences
from the trial or to draw inferences for or against the
remaining defendants based on Yoon’s and Lim’s absences. 4
Upon being instructed, the jury deliberated and delivered a
verdict finding all the remaining defendants guilty.
Garrison again moved for a new trial or for an acquittal,
arguing (1) that the government’s Brady and Giglio
violations required a new trial; (2) that Yoon’s and Lim’s
dismissal in the midst of the trial and the dismissal of a
portion of the charges against Nguyen prejudiced Garrison;
and (3) that there was insufficient evidence to convict
Garrison. The district court denied this motion, explaining
that it considered Garrison to be differently situated from the
pharmacist defendants and that it was not uncommon for
some defendants to be dismissed from a multi-defendant trial
during trial. Additionally, the district court reasoned that
there was significant documentary evidence against
Government violated those important Constitutional
principles upon which the fair administration of our
system of justice depends on multiple occasions. In
evaluating the merits of this case, you can decide what
weight, if any, to give to the Government’s violations
of these Constitutional principles. The Government’s
actions standing alone or in combination with other
facts presented in this case, may create a reasonable
doubt in your mind about the defendant’s guilt.
4
The instruction the district court gave was as follows:
For reasons that do not concern you, the case[s] against
defendants Theordore Yoon and Phic Lim are no
longer before you. Do not speculate why. This fact
should not influence your verdicts with reference to
the remaining defendants. And you must base your
verdict solely on the evidence against the remaining
defendants.
12 UNITED STATES V. GARRISON
Garrison separate and apart from any witness testimony.
The parties then proceeded to sentencing where Garrison
received a 120-month sentence. Garrison appeals.
II
When faced with a sufficiency of the evidence challenge,
we “must consider the evidence presented at trial in the light
most favorable to the prosecution” and then must determine
whether the evidence is sufficient to allow “any rational trier
of fact to find the essential elements of the crime beyond a
reasonable doubt.” United States v. Nevils, 598 F.3d 1158,
1164 (9th Cir. 2010) (internal citations, quotation marks, and
alterations omitted) (en banc). Nevils applied the well-
known standard developed by the Supreme Court in Jackson
v. Virginia, 443 U.S. 307 (1979), which vests in the jury a
great deal of leeway in reaching its verdict, and promises that
a jury verdict will be sustained when a rational trier of fact,
viewing the evidence in the light most favorable to the
government, could find all elements of the crime proved
beyond a reasonable doubt. Id. at 318–19. Our decision on
sufficiency of the evidence is made de novo. United States
v. Green, 592 F.3d 1057, 1065 (9th Cir. 2010).
By contrast, we review for abuse of discretion a district
court’s decision about what sanction to impose for the
untimely disclosure of Brady and Giglio material. See
United States v. Struckman, 611 F.3d 560, 577 (9th Cir.
2010); see also United States v. Sterling, 724 F.3d 482, 512
(4th Cir. 2013).
III
Garrison was charged with conspiracy to distribute
OxyContin in violation of 21 U.S.C. § 846 on the grounds
that he had distributed OxyContin outside the course of usual
UNITED STATES V. GARRISON 13
medical practice and for no legitimate medical purpose in
violation of 21 U.S.C. § 841. “To establish a drug
conspiracy, the government must prove (1) an agreement to
accomplish an illegal objective; and (2) the intent to commit
the underlying offense.” United States v. Duenas, 691 F.3d
1070, 1085 (9th Cir. 2012) (internal citations and quotation
marks omitted). Further, to demonstrate the underlying
violation of § 841 the government must prove three
elements:
(1) that the practitioner distributed controlled
substances, (2) that the distribution of those
controlled substances was outside the usual
course of professional practice and without a
legitimate medical purpose, and (3) that the
practitioner acted with intent to distribute the
drugs and with intent to distribute them
outside the course of professional practice.
United States v. Feingold, 454 F.3d 1001, 1008 (9th Cir.
2006). Here, Garrison is not challenging that there was a
conspiracy to run a pill mill out of the Clinic; rather, he
contends that there was inadequate evidence at trial to
demonstrate that he was aware of the conspiracy or
knowingly participated in the conspiracy.
We do not consider this to be a close case on sufficiency
of evidence. As to the underlying violation, there was expert
testimony that Garrison acted outside the scope of usual
medical practice and that he participated in distributing
OxyContin in an alarmingly high volume and strength for no
legitimate medical purpose. Further, Garrison pre-signed
prescriptions, filled out pre-signed prescriptions, and wrote
OxyContin prescriptions for people neither he nor anyone
else at the clinic had ever examined. He also lied to an
14 UNITED STATES V. GARRISON
investigator about his standard practices. Inconsistencies or
lying can lead a jury to infer intent. United States v. Haro-
Portillo, 531 F.2d 962, 963 (9th Cir. 1976). This evidence
was sufficient to allow a reasonable jury to draw the
inference that Garrison was prescribing OxyContin with the
intent to do so for no legitimate medical purpose. See
Feingold, 454 F.3d at 1007.
Even though there was no direct evidence that Garrison
had entered into an agreement to participate in a drug
conspiracy, it is well-established that “a jury may infer the
existence of an agreement from circumstantial evidence,
such as the defendant’s conduct.” United States v. Reed,
575 F.3d 900, 924 (9th Cir. 2009). There is no dispute here
that there was a conspiracy to improperly distribute
OxyContin. “[O]nce a conspiracy is established only a slight
connection to the conspiracy is necessary to support a
conviction,” meaning “that a defendant need not have known
all the conspirators, participated in the conspiracy from its
beginning, participated in all its enterprises, or known all its
details.” United States v. Herrera-Gonzalez, 263 F.3d 1092,
1095 (9th Cir. 2001).
Here, Garrison had much more than a slight connection
with the conspiracy. He was a major actor in it. He filled
out prescriptions for OxyContin that had been pre-signed by
other medical professionals—often repeating similar
diagnoses to support those prescriptions—and he pre-signed
his own prescription pad, apparently so others could draw
prescriptions from it. Coordination like this is “strong
circumstantial proof of agreement” in a conspiracy case.
Reed, 575 F.3d at 924 (internal citation and quotations
omitted). Garrison need not have been aware of or
participated in the full scope of the scheme—so long as he
had agreed to further a portion of its illicit operations by
UNITED STATES V. GARRISON 15
colluding in writing fraudulent prescriptions, he could be
convicted. See Herrera-Gonzalez, 263 F.3d at 1095. There
was sufficient evidence to lead a reasonable jury to conclude
that Garrison had agreed to further the scheme run out of the
Clinic to illicitly distribute OxyContin.
IV
Garrison next contends that because charges were
dismissed against Yoon, Lim, and Nguyen, charges should
also have been dismissed against him. He further contends
that because the government repeatedly failed to timely
disclose evidence revealing weaknesses in its case, there is
“little doubt” that, if that evidence been timely disclosed,
Garrison would have been acquitted. Garrison also argues
that Yoon’s and Lim’s sudden absence from the trial
prejudiced him and implied his guilt. We disagree on all
these points.
District courts have discretion in shaping the remedies
for Brady and Giglio violations. See Struckman, 611 F.3d at
577. Remedies for such violations, however, “should be
tailored to the injury suffered from the constitutional
violation and should not unnecessarily infringe on
competing interests.” Id. (quoting United States v.
Morrison, 449 U.S. 361, 364 (1981)). Because dismissing
an indictment is a “drastic step,” it is “disfavored.” Id.
(internal citations omitted). But, where a defendant was
prejudiced by the late disclosure and there was flagrant
prosecutorial misconduct, dismissal with prejudice may be
an appropriate remedy. Id.
At the outset, none of the issues regarding Cho were
relevant to Garrison—Garrison was not a party to the joint
defense agreement and Cho did not testify at Garrison’s trial.
Indeed, during the hearing on Garrison’s motion for acquittal
16 UNITED STATES V. GARRISON
and a new trial, his counsel said that the issues regarding Cho
“really had nothing to do with Mr. Garrison.” In this way,
Yoon and Lim were differently situated from Garrison.
Nguyen was also differently situated because, unlike
Garrison but like Yoon and Lim, he was a pharmacist, not an
insider at the Clinic. It was not inconsistent for the district
court to dismiss the charges against Yoon, Lim, and Nguyen,
while leaving the charges against Garrison in place.
There is no dispute here that the government failed to
comply with the requirements of Brady and Giglio when it
disclosed evidence late regarding Santiago and Shishalovsky
falsifying records for Harris, and failed to timely disclose the
side deal with Shishalovsky. All of the late disclosed
evidence, however, was given to the jury. And the district
court gave a jury instruction telling the jury that the
government had disclosed evidence late and that the jury
could draw adverse inferences from that late disclosure.
From the instruction it is clear that the jury was empowered
to exonerate Garrison because of the government’s
misconduct, if it chose to do so. But the jury instead found
Garrison guilty. In light of the extensive evidence against
Garrison, we cannot conclude that any prejudice stemmed
from the late disclosure. See United States v. Howell,
231 F.3d 615, 627 (9th Cir. 2000) (finding no prejudice
where the defendant was able to effectively cross-examine
witnesses about the evidence the prosecutor disclosed only
during trial and there was significant other evidence of the
defendant’s guilt).
Finally, Yoon’s and Lim’s sudden absences from trial
and the dismissal of charges against Nguyen, were not
prejudicial to Garrison. In instances where defendants
depart from a multi-defendant trial late in the trial, we have
stated that “the best course may be simply to tell the jury that
UNITED STATES V. GARRISON 17
the defendant is no longer part of the case.” United States v.
Bussell, 414 F.3d 1048, 1053 (9th Cir. 2005). This is exactly
what was done here. The district court also instructed the
jury not to speculate as to the reason for Yoon’s and Lim’s
absences and the dismissal of charges against Nguyen, and
specifically highlighted that the absences and the dismissal
of charges in no way weighed toward a finding of guilt as to
the remaining codefendants. There is an “almost invariable
assumption of the law that jurors follow their instructions,”
Richardson v. Marsh, 481 U.S. 200, 206 (1987), and
Garrison has offered no reason to depart from this
assumption here.
We conclude that there was sufficient evidence to sustain
Garrison’s conviction. We also conclude that there is no
error here in the remedies the trial court crafted for the
government’s late disclosures or in the jury instructions the
court gave regarding the abrupt departure of Yoon and Lim,
and the dismissal of some charges against Nguyen.
AFFIRMED.