Appeals from the United States District Court for the Northern District of Indiana, Hammond Division. No. 2:04-CR-00096-Rudy Lozano, Judge.
The opinion of the court was delivered by: Wood, Circuit Judge
ARGUED SEPTEMBER 28, 2007
Before ROVNER, WOOD, and EVANS, Circuit Judges.
Responding to growing concerns about widespread abuse of OxyContin, a Schedule II narcotic opioid often prescribed to treat chronic pain, the federal Drug Enforcement Administration ("DEA") in 2001 launched a public campaign called the "OxyContin Action Plan" to ferret out unlawful uses of the drug. Dr. David Demaret Chube II and his brother Dr. Charles Randall Chube ("Dr. David" and "Dr. Randy," respectively, or, collectively, "the Doctors") were two of the hundreds of physicians investigated by the DEA for possible illegitimate prescribing of the drug. On February 2, 2005, the Doctors were charged in a 33-count indictment with unlawful distribution of controlled substances, health care fraud, and conspiracy to commit each of those offenses. After a two-week jury trial, the jury acquitted Dr. Randy of 32 out of 33 charges, and acquitted Dr. David of 27 out of 33 charges, rejecting both the conspiracy charges and many distribution charges. It found Dr. Randy guilty of one count of unlawful distribution and Dr. David guilty of four counts of unlawful distribution and two counts of defrauding a health benefit program.
After the sentencing hearing, at which relevant conduct findings played a critical role in enhancing each brother's advisory Guidelines range, the district court sentenced Dr. Randy to five years' imprisonment and Dr. David to 15 years. Both men appeal. We affirm their convictions, but we vacate both sentences and remand for resentencing.
The Doctors jointly owned a clinic, Great Lakes Family Health Center, which opened its doors in 1998 in Gary, Indiana; they opened a second office two years later in nearby Munster, Indiana. Prior to starting the Great Lakes clinic, the two had practiced medicine with their father in Gary. During the years that the Doctors operated their clinics, many patients came to them seeking relief from severe chronic pain. Like many practitioners, the Doctors treated some of these complaints with OxyContin, a drug that has received praise from pain-management organizations and specialists for its ability to alleviate debilitating pain. From 1995 to 2001, the drug's maker, Purdue Pharma, openly (and, we now know, falsely) marketed OxyContin to physicians as a less-addictive alternative to other pain-relieving drugs. Because of an emerging realization that OxyContin was addictive and thus prone to abuse, the drug eventually attracted the DEA's attention.
The DEA was led to the Doctors by one of their patients, William Perry Mitchell, who lived in Benton Harbor, Michigan, about 70 miles from the Great Lakes clinic in Gary. He was one of several patients from that area. Although the Doctors had several legitimate patients, the proof at trial showed that others had no real medical complaints and went to the Doctors' clinic solely to obtain OxyContin. Mitchell was arrested on September 17, 2001, and charged in the U.S. District Court for the Western District of Michigan with knowingly and intentionally distributing OxyContin pills. Mitchell and his girlfriend had obtained the pills in question using prescriptions written by either Dr. David or Dr. Randy. In exchange for a provision in his plea agreement offering a possible reduction in his sentence, Mitchell agreed to name his "suppliers," to testify against them, and to bring more witnesses to the Government who would do the same. Mitchell fulfilled all parts of his bargain, as did the Government.
The parties' briefs present starkly different portraits of the defendants and their conduct. (We note, however, that at this stage we must view the facts in the light most favorable to the jury's verdict. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); United States v. Thompson, 523 F.3d 806, 809-10 (7th Cir. 2008).) According to the Doctors, the evidence demonstrated that they believed, in good faith and with good reason, that their patients were seeking treatment for true medical complaints. The problem they face is that the jury did not have to accept their protestations. But the Doctors also raise a legal argument: their convictions, they argue, assess their actions by reference to the standard of care applicable in a civil malpractice suit, but the proper standard is the one found in the Controlled Substances Act ("CSA"), which authorizes the conviction of a registered practitioner only if the prescription was written without a legitimate medical purpose and outside the scope of professional practice. The Government urges us to conclude that the evidence supports a finding that the Doctors were not using their medical licenses to treat patients with true complaints, but were acting as common drug dealers, earning substantial amounts of money by prescribing drugs to addicts whom they knew had no legitimate medical complaints and without conducting sufficient physical examinations, diagnostic tests, or other appropriate inquiries or procedures to determine that the prescriptions were warranted. The jury found, the Government continues, that this conduct violated the CSA and thus went beyond simple malpractice. In other words, it found that the Doctors were acting not as physicians, but as profiteering pill-pushers.
The jury drew careful lines in its verdict. It exonerated the Doctors on the great majority of the charges, but it did convict Dr. Randy on one count of unlawful distribution, and Dr. David on four counts of unlawful distribution and two counts of health care fraud. On appeal, the Doctors support their argument about the erroneous use of the malpractice standard with an attack on two of the Government's expert witnesses, Dr. Theodore Parran and Dr. Robert Barkin. Their testimony allegedly conflated the civil and criminal standards of care and thus created a risk that the jury found liability not because it concluded that the Doctors' acts of prescribing medications fell outside the scope of legitimate medical practice, but instead because it thought they had been careless. The Doctors also argue that the experts' testimony should not have been admitted because each impermissibly testified to legal conclusions.
The Government's case was not limited to these two experts. The jury also heard from 15 patients, 11 of whom testified that they were suffering from true medical problems when they consulted the Doctors; the other four confessed that they fabricated their complaints solely to obtain painkillers. All said that they reported severe pain to the Doctors. Those who fabricated their complaints said they did not tell the Doctors that they were lying or that they were addicted to the drugs, for doing so would have thwarted their efforts to obtain the pills. The battleground of the litigation, then, was whether the Doctors knew that no legitimate medical reason existed for prescribing painkillers to these patients.
At sentencing, the district court's relevant conduct findings dramatically enhanced each defendant's advisory Guidelines range. Before adding the relevant conduct, Dr. Randy was facing an advisory Guidelines range of 0 to 6 months' imprisonment; because this fell within Zone A of the Guidelines grid, probation alone would have been permissible. Dr. David was looking at an advisory Guidelines range of 21 to 27 months in prison. Relying primarily on spreadsheets of alleged unlawful prescriptions compiled by the Government, which included any prescription for a controlled substance found in any of the 98 patient files seized in the Government's searches of the defendants' clinics, and on the expert testimony of Dr. Parran, the district court found that each defendant was responsible for all controlled substances-including (among others) OxyContin, Vicodin, and Xanax-that either doctor had prescribed to the patients whose charts had been admitted into evidence at trial. The court then sentenced Dr. Randy to 60 months' imprisonment, and Dr. David to 180 months. We discuss below additional details of the sentencing proceedings, where relevant.
We first address the arguments that the Doctors raise against their convictions. They focus on the expert testimony of two Government witnesses, Dr. Theodore Parran and Dr. Robert Barkin. Dr. Parran, who specializes in internal medicine and addiction medicine, evaluated all 98 patient files in the record. Based on that review, he concluded that the prescribing "was not done consistent with the usual standards of medical practice" and thus was not done with a "legitimate medical purpose." Dr. Barkin was called as an expert on pharmacology. Though not a medical doctor, Dr. Barkin received his doctorate in clinical pharmacy in 1985 and is board-certified by various associations for pain management and forensic medicine. Like Dr. Parran, Dr. Barkin testified solely on the basis of the patient charts, although he reviewed only a selection. He, too, concluded that the prescriptions in the charts that he reviewed were issued "[o]utside the scope of medical practice, not for legitimate purposes."
The Doctors offer two reasons why both experts' testimony should have been excluded in response to their motion in limine. They have an uphill battle, because our review is only for abuse of discretion. United States v. Watts, 95 F.3d 617, 619 (7th Cir. 1996). The scope of their motion was the subject of some dispute. The Government describes it as a "breathtakingly broad" motion that sought to rule out all expert testimony that would suggest a violation of the standard of care applicable in civil medical malpractice cases. This, the Government argued, went too far. While it conceded that the expert testimony would not be conclusive on the question of the Doctors' criminal liability, it argued that "such evidence was relevant to circumstantially establishing that the defendants had knowingly and intentionally distributed drugs as mere pill-pushers rather than in the course of a professional medical practice." For their part, the Doctors protest that they have at all times recognized that the experts' testimony had some relevance. The goal of their motion was only somehow to limit the admissibility of such evidence when it tended to conflate the civil and criminal standards, not to exclude it entirely. But the memorandum supporting the defendants' motion offers more support for the Government's position:
[t]he purpose of this Motion in Limine is to request that this Court enter a preliminary ruling prohibiting the Government from introducing any evidence at trial that the Chubes' treatment of patients did not conform to the "standards of medical practice", or any other evidence that would be suggestive of a violation of the civil standard of care applicable in medical malpractice cases.
The district court was entitled to take the Doctors at their word. On that understanding it did not abuse its discretion in denying the motion in limine.
The Doctors also argue that the district court committed reversible error when it failed to exclude or strike the evidence during the trial, once it became clear that the testimony was creating precisely the type of confusion that the motion in limine sought to prevent. The net result, they assert, was effectively to reduce the Government's burden from the standard of criminal intent to the negligence requirement that applies to civil malpractice. Furthermore, they argue, the experts provided what amounted to impermissible legal conclusions on the ultimate question of the Doctors' intent. We address these two points in turn.
In order to support a violation of the CSA, the jury had to find that the Doctors knowingly and intentionally acted "outside the course of professional practice" and without "a legitimate medical purpose." An implementing regulation issued under the CSA, 21 C.F.R. § 1306.04, reiterates this standard: "A prescription for a controlled substance[,] to be effective[,] must be issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice." See, e.g., United States v. Bek, 493 F.3d 790, 798 (7th Cir. 2007) ("[T]o convict . . . a practitioner registered to distribute controlled substances of violating § 841(a)(1), the government must show that he prescribed controlled substances outside 'the course of professional practice.'"); see also United States v. Moore, 423 U.S. 122, 138-43 (1975). As one court summarized it:
[T]o convict a practitioner under § 841(a), the government must prove (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. In other words, the jury must make a finding of intent not merely ...