US v. Wells
| Citation | 211 F.3d 988 |
| Decision Date | 06 December 1999 |
| Docket Number | DEFENDANTS-APPELLANTS,98-6011,Nos. 98-6010,PLAINTIFF-APPELLE,V,s. 98-6010 |
| Parties | (6th Cir. 2000) UNITED STATES OF AMERICA,GREGORY WELLS, M.D. (98-6010); RONALD LEE DILLION (98-6011), Argued: |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
Appeal from the United States District Court for the Eastern District of Kentucky at Pikeville. No. 97-00016--Joseph M. Hood, District Judge. [Copyrighted Material Omitted]
[Copyrighted Material Omitted]
[Copyrighted Material Omitted] Charles P. Wisdom, Jr., Patrick H. Molloy, Assistant United States Attorneys, Office of The U.S. Attorney, Lexington, Kentucky, for Appellee in Nos. 98-6010 and 98-6011.
Eldred E. Adams, Jr., Adams & Adams, Louisa, Kentucky, for Defendant-Appellant in No. 98-6010.
John K. West, McCOY, Baker & West, Lexington, Kentucky, for Appellants in No. 98-6011.
Before: Cole and Gilman, Circuit Judges; Carr,* District Judge.
Defendants-Appellants Gregory Wells, M.D., and Ronald Lee Dillion appeal from their jury convictions on ten counts of narcotics crimes. The convictions all arise from Dr. Wells's prescriptions for thousands of dosages of controlled substances for the use and benefit of Dillion, a friend and patient. On appeal, Dr. Wells and Dillion raise multiple issues. None of Dr. Wells's claims have merit, and we AFFIRM his conviction. However, because the district court erred in the manner in which it assessed Dillion's claim that the government breached his plea agreement, we VACATE his sentence and REMAND Dillion's case to the district court for further proceedings consistent with this opinion.
In 1983, the Kentucky Board of Medical Licensure licensed Dr. Wells to practice medicine in Kentucky. From that time until his trial in this case, Dr. Wells practiced general medicine in Inez, Kentucky. The Drug Enforcement Agency (DEA) issued Dr. Wells a registration number in August 1983 which authorized Dr. Wells to write prescriptions for controlled substances in accordance with 21 U.S.C. § 801 et seq. The Kentucky Board of Medical Licensure suspended Dr. Wells's capacity to write prescriptions for narcotics in October 1995.1
Ronald Lee Dillion, a former Kentucky State Police officer, became a patient of Dr. Wells in 1994. Dillion saw Dr. Wells for a neck and back ailment and for a blood disorder. Dillion took a prescription pain medication, Lorcet, to treat the pain associated with his neck and back problems. In addition to their professional relationship, Dr. Wells and Dillion were friends who talked with each other frequently and took at least one trip together.
Following an investigation that began as a Medicaid fraud investigation centered on Dr. Wells, the government filed a seven-count indictment against Dr. Wells and Dillion on June 18, 1997. The first count charged Dr. Wells and Dillion with conspiring to acquire and obtain controlled substances by misrepresentation, fraud, deception, or subterfuge, in violation of 21 U.S.C. § 846 and 843(a)(3). Counts two through six alleged that Dr. Wells had written prescriptions which Dillion had used to obtain Schedule II and Schedule III controlled substances, see 21 U.S.C. § 812, and charged the two men with aiding and abetting one another in knowingly and intentionally acquiring and obtaining the drugs by misrepresentation, fraud, deception and subterfuge, in violation of 21 U.S.C. § 843(a)(3) and 18 U.S.C. § 2. The final count charged Dr. Wells and Dillion with aiding and abetting one another in obtaining Lorcet, a Schedule III narcotic, and alleged that Dr. Wells had written prescriptions for Dillion that were outside the scope of appropriate medical practice, in violation of 21 U.S.C. § 843(a)(3) and 18 U.S.C. § 2. Both defendants pleaded not guilty to all seven counts.
On November 20, 1997, the government filed a superseding indictment against Dr. Wells and Dillion. The superseding indictment included the first six counts from the original indictment, but added several new counts. Count seven charged Dr. Wells and Dillion with aiding and abetting one another in illegally dispensing and distributing Tylox, a Schedule II narcotic, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Count seven alleged that Dr. Wells had written, outside the scope of appropriate medical practice and not for a legitimate medical purpose, a prescription for Tylox in the name of a third person, but actually intended the drug for Dillion. Counts eight through twelve of the superseding indictment charged both defendants with five other instances of aiding and abetting each other in illegally distributing and dispensing Schedule II narcotics by prescribing them for a third party but intending them for Dillion. Both defendants pleaded not guilty to the charges in the superseding indictment.2
On August 5, 1996, Dillion entered into a plea agreement with the government. In March 1997, the government informed Dillion that it considered the agreement to be null and void because Dillion had failed to cooperate under the agreement. Dillion moved to enforce the plea agreement on August 15, 1997, but the court denied the motion on October 30, 1997.
Dr. Wells and Dillion were tried by a jury. At the close of evidence, the defendants moved for acquittal. The court denied the motion on ten of the counts, but granted it as to counts three and six, because the government failed to prove under those counts that the third parties for whom Dr. Wells had prescribed drugs had not actually received the drugs. After the jury found both defendants guilty of the remaining ten counts, the court sentenced Dr. Wells to a total of 78 months' imprisonment, three years of supervised release, and a $1,000 assessment, and Dillion to a total of 63 months' imprisonment, three years of supervised release, and a $1,000 assessment. Both Dr. Wells and Dillion filed timely notices of appeal.
Dillion's first argument on appeal is that the district court abused its discretion by failing to enforce his plea agreement with the government. Dillion claims that the government failed to prove by a preponderance of the evidence that Dillion had materially and substantially breached the agreement. The government responds that, due to his drug addiction, Dillion breached the agreement by being unable to comply with its terms and by failing to provide useful information. The government also argues that Dillion breached the plea agreement by failing to obtain treatment for his drug addiction.3
Under his written plea agreement, Dillion agreed to plead guilty to conspiracy to obtain possession of a controlled substance by misrepresentation, fraud, forgery, deception, or subterfuge, in violation of 21 U.S.C. § 846 and 843(a)(3), and "to fully cooperate" with the government in its investigation and prosecution of related criminal activity. In return, the government agreed to limit its prosecution of Dillion's involvement in the narcotics crime to the conspiracy charge. The government also agreed, in the event that Dillion provided "substantial assistance" in its investigation and prosecution, to consider filing a U.S.S.G § 5K1.1 motion requesting the district court to impose a sentence below the established guideline range. The agreement was absolutely clear that it "constitute[d] the entire Plea Agreement between the United States and the defendant," and that it "supersede[d] all prior understandings, promises and /or representations, if any, whether written or oral, which may have existed between the parties hereto."
On the day that the parties signed the agreement, Dillion met with government investigators and the AUSA for most of the day. Dillion provided the government with information at that time, although the parties disagree over how helpful the information proved to be. Dillion met with government investigators on one more occasion, on August 9, 1996. After the second meeting, the government made several attempts to schedule further meetings through Dillion's attorney, but none of the meetings came to fruition. In March 1997, the government informed Dillion's attorney by letter that the government considered the plea agreement null and void because Dillion had failed to cooperate with the government. In August 1997, Dillion filed a motion to enforce the plea agreement. After a hearing at which several witnesses testified, the district court issued a written order denying Dillion's motion and finding that Dillion "failed to fulfill his obligations under the plea agreement."
United States v. Robison, 924 F.2d 612, 613 (6th Cir. 1991). Questions regarding the content of the plea agreement are questions of fact; this court reviews the district court's determination of those questions for clear error. Id. However, whether the government's conduct violated the agreement is a question of law that we review de novo. See United States v. Hawley, 93 F.3d 682, 690 (10th Cir. 1996); United States v. Valencia, 985 F.2d 758, 760 (5th Cir. 1993). The trial court should hold the government to "a greater degree of responsibility than the defendant . . . for imprecisions or ambiguities in . . . plea agreements." United States v. Johnson, 979 F.2d 396, 399 (6th Cir. 1992) (citation and quotation omitted). Although the burden is on the government to show by a preponderance of the evidence that the defendant breached the agreement, United States v. Benjamin, 138 F.3d 1069, 1074 (6th Cir. 1998), a defendant who breaches a plea agreement forfeits any right to its enforcement. United States v. Skidmore, 998 F.2d 372, 375 (6th Cir. 1993) (citation omitted).
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