FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLORADO (D.C. No. 1:13-CR-00354-REB-1)
C. Arceci, Assistant Federal Public Defender (Virginia L.
Grady, Federal Public Defender, with him on the brief),
Denver, Colorado, for Defendant-Appellant.
Bishop Grewell, Assistant United States Attorney (Robert C.
Troyer, Acting United States Attorney, with him on the
brief), Denver, Colorado, for Plaintiff-Appellee.
McHUGH, McKAY, and KELLY, Circuit Judges.
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
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.
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).
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).
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).
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.
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.
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.
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).
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
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.
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.
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).
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