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United States v. Miller

United States Court of Appeals, Tenth Circuit

June 6, 2018

JOEL E. MILLER, a/k/a Joel Edward Miller, Defendant-Appellant.


          John C. Arceci, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, with him on the brief), Denver, Colorado, for Defendant-Appellant.

          J. Bishop Grewell, Assistant United States Attorney (Robert C. Troyer, Acting United States Attorney, with him on the brief), Denver, Colorado, for Plaintiff-Appellee.

          Before McHUGH, McKAY, and KELLY, Circuit Judges.


         Defendant Joel Miller, a former small-town doctor, was charged with numerous counts of health-care fraud, money laundering, and distributing a controlled substance outside the usual course of professional treatment, as well as one count of making a false statement in an application he submitted to the Drug Enforcement Administration. The jury acquitted him on all of the financial charges as well as several of the drug-distribution charges, but found him guilty on seven counts of distributing a controlled substance in violation of 21 U.S.C. § 841(a) and one count of making a false statement to the DEA in violation of 21 U.S.C. § 843(1)(4)(A). The district court granted Defendant's post-judgment motion for acquittal on one of the controlled-substances counts based on an error in the indictment. The court then sentenced him to forty-one months of imprisonment on the six remaining distribution counts, plus a consecutive sentence of nineteen months on the false-statement count, for a total sentence of sixty months of imprisonment. Defendant appeals his convictions and sentence.

         On appeal, Defendant argues that (1) the government medical expert's testimony was not the product of reliable principles reliably applied to the facts of this case and accordingly should have been excluded under Rule 702; (2) the indictment was duplicitous on four of the six controlled-substances counts because each of these four counts included at least two different controlled substances that were prescribed on the same date to the same patient; (3) the trial evidence, jury instructions, and prosecutor's closing argument constructively amended the indictment on the false-statement count; (4) the false-statement count should not have been submitted to the jury because the statement at issue was not false as a matter of law; and (5) the sentence was procedurally unreasonable.

         Before addressing the merits of any of these arguments, we first pause to explain the legal backdrop behind Defendant's controlled-substance convictions. Under § 841(a)(1), it is "unlawful for any person knowingly or intentionally" to dispense a controlled substance "[e]xcept as authorized by this subchapter." Medical practitioners are authorized to dispense non-schedule I drugs pursuant to 21 U.S.C. § 829(a) and (b). However, in order for a medical practitioners's prescription of controlled substances to be considered a lawful prescription under § 829, it "must be issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice." 21 C.F.R. § 1306.04(a). "When this limited statutory authority is exceeded, the criminal sanctions of § 841 apply." United States v. Fellman, 549 F.2d 181, 182 (10th Cir. 1977). Thus, a medical practitioner who prescribes controlled substances may be convicted of illegal distribution or dispensing under § 841 "if he acts without a legitimate medical purpose or outside the usual course of professional practice." United States v. Nelson, 383 F.3d 1227, 1233 (10th Cir. 2004).

         To help the jury decide whether this standard for criminal liability has been met, "[e]xpert testimony from medical practitioners is of course admissible." United States v. Bartee, 479 F.2d 484, 488 (10th Cir. 1973). "However, the jury is not bound by such expert testimony and may of course consider all of the facts and circumstances surrounding the prescribing as related by lay witnesses." Id. The jury is "free to sort out all the competing proof: the question [of] what constitutes usual medical practice remain[s], at all times, within its province." United States v. Lovern, 590 F.3d 1095, 1100 (10th Cir. 2009).[1]

         With this legal backdrop in mind, we first consider Defendant's challenge to the admission of testimony from the government's medical expert. "The admission of expert testimony is within the discretion of the trial court and will be overturned on appeal only when a clear abuse of discretion has occurred." United States v. Varma, 691 F.2d 460, 463 (10th Cir. 1982). "The district court abuses its discretion if the court's decision is arbitrary, capricious, whimsical or manifestly unreasonable, or when we are convinced that the district court made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances." United States v. Chapman, 839 F.3d 1232, 1237 (10th Cir. 2016) (internal quotation marks omitted).

         The government's medical expert, Dr. Theodore Parran, was indisputably qualified to testify as an expert. Dr. Parran's training and experience included not only practicing medicine for many years, but also teaching residency programs relating to pain and pain management, directing an addiction-medicine training program, directing a doctoring course for first- and second-year medical students at a medical school in Cleveland, directing a continuing medical education program, and conducting clinical work at an outpatient methadone clinic and various other facilities. Defendant does not dispute Dr. Parran's qualifications; he only disputes the substance of his testimony.

         Dr. Parran testified that he had reviewed several of Defendant's medical files and concluded, based on his training and experience, that Defendant's drug prescriptions relating to each of the counts of the indictment were outside the scope of usual professional practice and not for a legitimate medical purpose. Dr. Parran testified, for instance, that Defendant would "not uncommonly" increase dosages of narcotics for patients whose condition was described as "stable, " with no indication in the records as to why the dosage was being increased, contrary to the typical medical practice. (R. Vol. IX at 1144.) Dr. Parran testified that Defendant failed to document the types of basic physical exams, medical histories, and requests for patients' past medical records that even medical students would know to do "as part of the routine course . . . of medical practice." (Id. at 1146.) With respect to one patient, he testified: "Anyone who knows anything about opiate pharmacology and about how to evaluate a patient for the presence or absence of tolerance to the life-threatening effects of opiates knows that before seeing a patient, that [there are certain] things that have to be done, and . . . they were not done here." (Id. at 1372.) Moreover, Defendant continued prescribing narcotics to patients despite the presence of clear red flags of drug abuse, such as regular requests for early refills and concerned phone calls from family members or from pharmacists who refused to fill any more narcotic prescriptions for a particular patient because the patient was so clearly overmedicated. He prescribed controlled substances when there were contraindications against use, such as pregnancy or respiratory ailments, and he prescribed multiple drugs that were dangerous in combination. He "relentlessly continued" prescribing controlled substances to a patient who had been admitted to the hospital with an overdose. (Id. at 1250.) Dr. Parran testified that, based on these and similar deficiencies in Defendant's approach to and treatment of his drug-seeking patients, it was his expert opinion that Defendant's conduct was outside the course of usual medical practice and not for a legitimate medical purpose.

         Defendant argues that this testimony should not have been admitted because it was not "the product of reliable principles and methods . . . reliably applied . . . to the facts of this case." (Appellant's Opening Br. at 28 (quoting Fed.R.Evid. 702).) Specifically, Defendant contends that Dr. Parran's testimony was unreliable because, unlike the defense medical expert, he did not clearly delineate where he would draw the line between bad conduct that only amounts to civil malpractice and bad conduct that violates the criminal standard, but merely opined that the criminal standard is much more stringent. In the defense expert's opinion, so long as a doctor prescribes a medication that could address a legitimate medical need for a patient with whom the doctor has a legitimate professional relationship, then the doctor has acted within the usual course of medical practice, and any deficits in treatment within that legitimate professional relationship must be redressed civilly, not criminally. Defendant argues that this testimony hews more closely to the Supreme Court's explanation in United States v. Moore, 423 U.S. 122, 143 (1975), that a doctor may be found to have exceeded the bounds of professional practice where, "[i]n practical effect, he acted as a large-scale 'pusher.'" Defendant contends that Dr. Parran's interpretation of the criminal standard improperly leaves a large gray area in which a doctor may be found criminally liable for prescriptions made within the bounds of a legitimate doctor-patient relationship. He argues that, because Dr. Parran failed to properly comprehend and describe the difference between criminal conduct and bad medical practice, "his testimony permitted conviction in a case that deviates sharply from those in which this Court has affirmed physicians' convictions." (Appellant's Reply Br. at 10.) He thus argues that Dr. Parran's testimony should have been excluded under Rule 702 as inherently unreliable.

         We are not persuaded that the district court abused its discretion by admitting Dr. Parran's testimony. Although "the standard for criminal liability under § 841(a) requires more than proof of a doctor's intentional failure to adhere to the standard of care, " United States v. Feingold, 454 F.3d 1001, 1011 (9th Cir. 2006), this does not mean that an expert at a criminal trial must also propound on the similarities and differences between the criminal standard and inapplicable civil standards in order to provide reliable testimony on the relevant criminal standard. Defendant has not cited, nor have we found, a single case which even suggests, much less holds, that an expert witness must testify about the civil standard and establish a clear-cut delineation between civil malpractice and a doctor's violation of the Controlled Substances Act in order for his testimony on the criminal standard to be reliable. To the contrary, all of the pertinent cases indicate-sensibly enough-that expert testimony in a criminal case should be based on the criminal standard. Cf. United States v. Tran Trong Cuong, 18 F.3d 1132, 1138-41 (4th Cir. 1994) (noting that district court erroneously told medical expert "to use a negligence or malpractice standard, " but holding that expert's testimony "that he found almost every chart contained evidence of bad and harmful medical practice" was sufficient, along with evidence from patients and undercover agents, to establish a violation of the criminal standard).

         Although Defendant relies on Moore, Moore does not support his position. No doubt the doctor in Moore violated civil standards of care as well as the criminal standard by prescribing large quantities of methadone to his patients in a way that was "inconsistent with all accepted methods of treating addicts, " 423 U.S. at 126, but the Supreme Court felt no need to discuss malpractice or draw any distinctions between the civil and criminal standards in order to hold that the doctor could be prosecuted under § 841 for his conduct. Thus, nothing about Moore suggests that an expert witness must discuss the civil standard of care in order to reliably testify as to the criminal standard. Moreover, the fact that Moore involved more egregious behavior than the conduct at issue in this case does not prove that the only acceptable expert testimony in this case must be in Defendant's favor. "Although the record in this case does not indicate that the defendant was as nonchalant about controlled substances as the defendant doctors in [other cases], there was ample evidence to support the jury verdict." Varma, 691 F.2d at 464; see also United States v. MacKay, 715 F.3d 807, 823 (10th Cir. 2013) ("Neither the Supreme Court in Moore, nor the Ninth Circuit in Feingold stated that a specific set of facts had to be present in order to find that a physician stepped outside of his role and issued prescriptions without a legitimate medical purpose.").

         Contrary to Defendant's arguments, we have sustained convictions in other cases involving similarly ambiguous and disputed facts. In Varma, for instance, we noted that "the jury might have concluded that the defendant doctor had only made a few bad judgments when prescribing drugs." 691 F.2d at 464. Although we acknowledged that there were "numerous other recently reported cases where the acts of doctors convicted of improperly prescribing controlled substances seem more egregious than those of Dr. Varma, " we held that there was "ample evidence" to support the jury verdict based on evidence that (1) his staff took incomplete medical histories; (2) the physical examination he performed on each of the undercover agents "was patently too short and inadequate"; (3) Dr. Varma "told his staff that he was troubled by his suspicion that some patients were taking advantage of him by requesting prescriptions for controlled substances for nonmedical reasons"; (4) at his staff's suggestion, he put up a sign in the lobby stating that he would no longer prescribe certain drugs and told his staff "the patients probably would not return"; (5) while the sign was posted, Dr. Varma's case load "dropped from 80 patients per day to 20 per day"; and (6) when Dr. Varma removed the sign, "his patient load increased to at least its former level." Id. Likewise, in MacKay, we affirmed a doctor's § 841(a) conviction-even though "all of the prescriptions at issue were in the context of a regular doctor visit" and "his patients legitimately experienced pain"-based on evidence that the doctor's examinations "lack[ed] depth, " he prescribed narcotics in too high of dosages, he failed to check controlled-substance database reports, he "often did not question his patients' excuses for early refills because he trusted them, " and he "did not conduct follow-up examinations before writing prescriptions for refills." 715 F.3d at 822-25. As in MacKay, Defendant "fails to see his conduct is similar" to defendants in other § 841(a) cases. Id. at 823. While Defendant's conduct was less egregious than the conduct of many doctors who have been convicted under § 841(a), his conviction is not the "sharp deviation" from precedent that he claims.

         At its heart, Defendant's argument boils down to the contention that his expert's interpretation of the criminal standard is the only correct one, and thus only his expert's testimony should have been admitted at trial. However, Dr. Parran's testimony was consistent with expert testimony we have considered in similar cases, see, e.g., MacKay, 715 F.3d at 822-23, and Defendant has not shown that the district court committed a clear error of judgment or otherwise abused its discretion by allowing this testimony to be presented. In a § 841(a) case, "[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." United States v. August, 984 F.2d 705, 713 (6th Cir. 1992). Instead, this is a fact-intensive inquiry in which the district court should avoid "unduly cabining the jury's ability to consider a broad swath of evidence in determining whether [the medical practitioner's] conduct had no legitimate medical purpose." United States v. Volkman, 797 F.3d 377, 388 (6th Cir. 2015). The district court appropriately followed our guidance in Lovern by allowing the jury to receive conflicting "witnesses and documentary proof at trial focused on the contemporary norms of the medical profession" so it could "sort out all the competing proof" to decide whether the conduct at issue in this case satisfied the criminal standard. 590 F.3d at 1100; see also MacKay, 715 F.3d at 828-29 ("When experts do not reach the same conclusion, the jury is responsible for making credibility determinations, not the court."). We see no abuse of discretion, and we therefore affirm the admission of Dr. Parran's expert testimony.

         We turn next to Defendant's argument that his conviction on four of the six controlled-substance counts must be reversed because they were duplicitous, since they each included at least two different controlled substances that were prescribed by Defendant to a specific patient on a particular date. "Duplicity is defined as the joinder of two or more distinct and separate criminal offenses in the same count of an indictment." United States v. Schneider, 594 F.3d 1219, 1228 n.8 (10th Cir. 2010). We review the question of duplicity de novo. United States v. Trammell, 133 F.3d 1343, 1354 (10th Cir. 1998).

         Defendant argues that the unit of prosecution under § 841(a) is a single controlled substance, and he contends that the indictment was duplicitous because it lumped different controlled substances-prescribed at the same time to the same patient-into a single count, rather than charging each substance as an individual offense. For support, he relies on United States v. Richardson, 86 F.3d 1537, 1552-53 (10th Cir. 1996), in which we held that "the simultaneous possession of different controlled substances constitute[s] separate offenses under section 841(a)" because "[t]he plain language of section 841 confirms that Congress intended to treat different controlled substances as separate offenses." Defendant contends that the same reasoning applies to his distribution of controlled substances: just as the statute "prohibits possession of 'a controlled substance, ' not of 'a controlled substance or group of controlled substances, ...

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