18 F.3d 1132 (4th Cir. 1994), 93-5308, United States v. Tran Trong Cuong

Docket Nº:93-5308.
Citation:18 F.3d 1132
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. TRAN TRONG CUONG, M.D., Defendant-Appellant.
Case Date:February 28, 1994
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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18 F.3d 1132 (4th Cir. 1994)

UNITED STATES of America, Plaintiff-Appellee,

v.

TRAN TRONG CUONG, M.D., Defendant-Appellant.

No. 93-5308.

United States Court of Appeals, Fourth Circuit

February 28, 1994

Argued Oct. 28, 1993.

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ARGUED: Cary Steven Greenberg, Alexandria, Virginia; Edward Scott Rosenthal, Rosenthal, Rich, Grimaldi & Guggenheim, Alexandria, Virginia, for appellant. Vincent L. Gambale, Assistant United States Attorney, Alexandria, Virginia, for appellee.

ON BRIEF: Kenneth E. Melson, United States Attorney, W. Neil Hammerstrom, Jr., Assistant United States Attorney, David G. Barger, Assistant United States Attorney, Alexandria, Virginia, for appellee.

Before HAMILTON, Circuit Judge, CHAPMAN, Senior Circuit Judge, and KAUFMAN, Senior United States District Judge for the District of Maryland, sitting by designation.

OPINION

CHAPMAN, Senior Circuit Judge:

Appellant Tran Trong Cuong, M.D. (Tran) is a physician educated in Paris, France and admitted to practice medicine in the Commonwealth of Virginia since 1973. He is registered as a practitioner with the Drug Enforcement Administration and authorized to prescribe controlled substances listed in Schedules II, III, IV and V as set forth in 21 U.S.C. Sec. 812. 1 He was indicted under 21 U.S.C. Sec. 841(a)(1) for knowingly and willfully distributing and dispensing by prescription various quantities of Schedule II through V controlled substances outside the usual course of medical practice and for other than legitimate medical purposes. The indictment contained 136 counts of unlawful distribution of the drugs and a separate count for criminal forfeiture of property allegedly used in connection with these offenses, as provided by 21 U.S.C. Sec. 853. Following a jury trial, Tran was convicted of 127 counts, and the jury returned a special verdict supporting forfeiture of certain real estate located in Alexandria, Virginia. He was acquitted of eight counts, and one count was dismissed prior to the verdict.

Tran was sentenced to 97 months in prison, ordered to pay a special assessment of $6,350, and an order of forfeiture was entered as to the real estate. Tran now appeals. This appeal presents a number of issues: (1) sufficiency of the evidence, particularly as to the 80 counts as to which there was no testimony from the patient receiving

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the prescription; (2) reputation evidence presented by the government although Tran had not placed his reputation at issue nor presented any evidence tending to prove his good reputation; (3) the government's medical expert's effort to bolster his opinion with that of another physician, who did not testify; (4) the proper standard to use in determining whether a prescription violated 21 U.S.C. Sec. 841(a)(1), and (5) various questions as to the sentence.

We reverse and remand for a new trial because of the introduction of evidence as to Tran's reputation and the use of Dr. Stevenson's opinion to support the medical opinion of Dr. Alan MacIntosh, when Dr. Stevenson's opinion was hearsay and he was not available for cross-examination. We also reverse the convictions under Counts 1-8, 25-64, 69-84, 93-96 and 101-112 because we find the evidence insufficient to convict. We do not reach the sentencing questions, because the convictions are all reversed and the convictions set aside. The order of forfeiture is reversed and the case is remanded for further proceedings.

I.

Tran is accused of unlawfully prescribing controlled substances to a total of 30 patients between April 1989 and January 1992. The indictment charges that 1,711 prescriptions were written to these 30 individuals during the time alleged in the indictment and these prescriptions included drugs such as Percodan from Schedule II, Vicodin and Tylenol with codeine from Schedule III, and Valium and Zanax from Schedule IV. The testimony showed that approximately 4,000 of Tran's prescriptions were filled during 1991 at 35 pharmacies close to his office. A pharmacist testified that he had called Tran in February 1990 about one of his patients who was getting controlled substances from other doctors, and William Jennings, an inspector from the Virginia Department of Health professions testified that he had warned Tran that Tran was "being conned" into prescribing narcotics to patients who were known drug abusers.

The government presented seven former patients, who testified that Tran's physical examinations had been perfunctory, that they faked their symptoms of pain and illness in order to obtain prescriptions to feed their addictions, that Tran frequently reminded them that he could not give them medication unless they told him they were in pain, and that Tran suggested that they fill the prescriptions at different pharmacies. Some of the witnesses asked for drugs by name, and one testified that he received prescriptions in return for doing repair work at Tran's office. Several witnesses testified that they were asked to sign written release forms acknowledging the addictive potential and dangers of the drugs that were being prescribed.

The DEA obtained a search warrant for the doctor's office and obtained patient files and the office cash payment ledger. From these records it appeared that Tran charged $35 for issuing the desired prescriptions and the patient files reflected that he kept many patients on narcotics and tranquilizers for years when their complaints were for headaches, backaches and other subjective ailments.

Most of the prescriptions were not refillable and this required the patients to come back to the doctor each time they wanted a refill and obtain a new prescription and pay his $35 fee. There was testimony that he advised patients that they needed to have different complaints of pain in different parts of the body because it would look bad if they were taking these drugs for ailments that persisted too long.

Two undercover Alexandria police officers testified that they went to the doctor's office without an appointment to seek narcotic "scripts," the street name for narcotics prescriptions. Tran saw one of these undercover agents eight times over two months in early 1991, spent no more than five minutes with him on each visit and prescribed controlled substances on each visit. These officers testified that the doctor did not perform any medical examinations of them and that one advised him "I'd like to feel a little mellowed out."

One of these officers dressed very shabbily and poured Bourbon whiskey over his clothes. He testified that he told Tran he

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was in need of Percodan to get through the winter as a construction laborer. Tran refused to prescribe Percodan, a Schedule II drug, but did give him a prescription for Vicodin, a Schedule III drug.

The government called a medical expert, Dr. Alan MacIntosh, a Board certified family physician who had practiced for 32 years. He had reviewed 33 charts of patients listed in the indictment and prepared a written report summarizing the information on each chart. He prepared an exhibit which correlated 1800 narcotics prescriptions with specific patients. He had reviewed the grand jury testimony of some of the patients as well as the DEA undercover reports. He had also examined the waivers or releases that Tran had required some patients to sign. He gave his opinion that after a few days the continued use of narcotics for most of the complaints shown in the files would do no medical good and would possibly be harmful because such drugs would lead to addiction, and that these prescriptions were totally unreasonable and not appropriate care for a family physician. Dr. MacIntosh also testified as to the qualifications of Dr. Stevenson who had also prepared a report on some of Dr. Tran's patients. It was Dr. MacIntosh's opinion that his findings and Dr. Stevenson's findings were "essentially the same." This testimony came in over the objection of defense counsel.

Tran called two physicians, one an oncologist and the other a psychiatrist, who was a pain clinic director. One testified that his general impression of the defendant's patient charts showed a pattern of practice that was within the state of the art and the other testified that the defendant's prescriptions were within the medical standard and were conservative because Tran prescribed only small amounts of medication on each prescription. Neither of these witnesses had ever seen a release or waiver form such as that required by Tran. They also stated that they had never advised patients to use different pharmacies or to use pharmacies without computers to conceal the volume of prescriptions being written.

Tran also called two of his patients, Hanson and Coats. Coats testified that she was an addict and went to the defendant in 1984 to get drugs. She did not tell him of her addiction but claimed a back problem. On cross examination, she related that between 1984 and October 1991 she obtained prescriptions from Tran every week or two and from January 1990 to October 1991 she received 145 narcotics prescriptions from him. In cross examining Coats, the Assistant United States attorney asked "Is it fair to say that Dr. Tran had a reputation in the community for being an easy source of drugs?" Defense counsel objected and moved to strike the question, but the court stated, "It goes to character." The court then asked, "Do you know whether he had a reputation or not?" The witness answered that Tran had a reputation for being an easy source of drugs. The defendant unsuccessfully moved for a mistrial.

Of the counts in the indictment, 80 related to 20 patients who did not appear or testify at the trial. There were four prescriptions as to each of these 20 patients and each prescription, a total of 80, was a separate count in the indictment. The evidence supporting these counts was the testimony of Dr. MacIntosh, supported by his exhibit, which was a summary of...

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