445 F.3d 1302 (11th Cir. 2006), 04-15117, United States v. Williams

Docket Nº:04-15117.
Citation:445 F.3d 1302
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Freddy J. WILLIAMS, Defendant-Appellant.
Case Date:April 13, 2006
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1302

445 F.3d 1302 (11th Cir. 2006)

UNITED STATES of America, Plaintiff-Appellee,

v.

Freddy J. WILLIAMS, Defendant-Appellant.

No. 04-15117.

United States Court of Appeals, Eleventh Circuit.

April 13, 2006

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[Copyrighted Material Omitted]

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Michael Robert Ufferman (Court-Appointed), Michael Ufferman Law Firm, P.A., Tallahassee, FL, for Williams.

E. Bryan Wilson, Terry Flynn, Tallahassee, FL, for U.S.

Appeal from the United States District Court for the Northern District of Florida D. C. Docket No. 03-00059 CR-5-MCR

Before TJOFLAT and COX, Circuit Judges, and GEORGE[*] , District Judge.

COX, Circuit Judge.

From 1999 until 2003, Freddy J. Williams, M.D., who was licensed to practice medicine in Florida and registered under the Controlled Substances Act, 21 U.S.C. § 801 et seq., operated a clinic in Panama City, Florida. In June 2004, he was convicted, following a jury trial, of 94 crimes, including, most significantly: 56 counts of unlawfully dispensing controlled substances; 2 counts of unlawfully dispensing a controlled substance resulting in death; multiple counts of mail fraud, wire fraud, health care fraud and conspiracy to commit these frauds; and possession of a firearm by a convicted felon.1 Williams was sentenced, pursuant to the U.S. Sentencing Guidelines ("the Guidelines"), to concurrent terms of life imprisonment on the two counts resulting in death as well as concurrent terms of imprisonment ranging from 60 to 240 months on the remaining 92 counts of conviction. He was also sentenced to a five-year period of supervised release to follow the imprisonment and ordered to pay $2,051,642.16 restitution. He appeals his convictions and sentences. We affirm the convictions and remand for resentencing under the now-advisory Guidelines system.

I. BACKGROUND

From January 2000 through October 23, 2003, Williams wrote over 21,000 prescriptions for more than two million doses of controlled substances-most for oxycodone (brand names OxyContin and OxylR).2 At

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trial, the Government presented the expert testimony of Dr. Parran, a board certified internal medicine physician with subspecialty training in addiction medicine. Parran, who was qualified as an expert in the areas of pain management, addiction medicine, and prescribing controlled substances, testified based on his review of patient files, prescriptions and other documents seized from Williams's clinic. This testimony and the documentary evidence demonstrated that Williams wrote multiple prescriptions on the same day for the same patient, that he wrote prescriptions for over one hundred individuals on whom he maintained no medical chart, that he wrote prescriptions for patients on whom he performed no or very minimal physical examination, that he wrote prescriptions for patients whose behavior and physical appearance indicated that they were addicted to controlled substances or who informed Williams that they had been addicted to controlled substances or illegal drugs in the past, that he wrote prescriptions for patients whose toxicology screens (tests to determine which drugs are in a patient's body) showed that they were not taking the prescribed drugs and were instead taking illegal drugs, that he wrote prescriptions for at least one patient who he had heard was selling the prescribed drugs, that the trend in his prescribing was to increase a patient's dosage and number of pills with each prescription, and that he frequently refilled prescriptions early and replaced "lost" drugs. Parran testified that these practices are not safe and are "not the legitimate practice of medicine." (R. 12-165 at 46, 54.) Parran repeatedly stated that prescriptions written to particular patients, "fail[] to meet usual standards of care and appear[] to be for other than legitimate medical purpose." (e.g., R. 12-165 at 74, 92, 97, 101,109.) At times during his testimony, Parran characterized Williams's prescription-writing behavior as "unbelievable," "unimaginable," "unfathomable," "inexcusable," and "abhorrent." (R.12-165 at 89, 92, 101, 116; R.13-166 at 45.) Williams did not object to the admission of any of this testimony.

The evidence further showed that Williams billed insurers (through the mail or by facsimile) for some of the patient visits during which he performed no service other than writing prescriptions for controlled substances and that Williams arranged (also using the mail or facsimile) for patients to enter the OxyContin drug manufacturer's program to provide free OxyContin through the mail to patients, agreeing with those patients to falsify their applications to claim that they had financial need and that Williams was providing his services for free when, in fact, he was charging those patients for visits.

Evidence was also presented that Williams received a kickback of some of these free drugs. Williams maintained a supply of OxyContin in his office and gave these drugs to patients to use "on an emergency basis." While Williams was registered to prescribe controlled substances, he was not registered to possess or dispense controlled substances.

Tara McGavan, an indicted co-conspirator, testified that Williams delivered OxyContin and syringes to her at her home.3 McGavan and Duane Oxenham, another indicted co-conspirator, testified that they recruited two patients, Mr. and Mrs. M, for Williams and that Williams acknowledged that the Ms were addicted to the OxyContin he was prescribing but said "at least they are not getting [their drugs] from the street." (R. 14-167 at 52-53.)

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Williams did not refer the Ms for drug treatment but rather agreed with Oxenham and McGavan that Oxenham and McGavan should hold the Ms'supply of OxyContin in a lock box in Oxenham and McGavan's home. Oxenham and McGavan did this so that they could make sure that the Ms did not overdose, end up in an emergency room and reveal Williams to be their source for drugs. McGavan testified, "Dr. Williams agreed that that would be in the best interest for [the Ms] and for all of us." (R.14-167 at 55.)

Three of Williams's patients died of drug overdoses. He was charged with dispensing oxycodone resulting in the death of two of the three, Bonnie Ramos and Brian Sanders. Dr. Scheuerman, an expert in forensic toxicology, testified that Ramos died of an overdose of OxyContin (prescribed by Williams) and/or doxepine (an antidepressant prescribed by another doctor). (R.6-163 at 79.) Scheuerman further testified that the amount of OxyContin alone in Ramos's body was enough to cause her death. (R.6-163 at 79, 82.) Sanders died of an OxyContin overdose while injecting himself with drugs prescribed by Williams.

Two firearms were seized during a search, pursuant to warrant, of Williams's residence. One rifle was in Williams's bedroom closet, the other in his son's bedroom.

Williams was convicted on June 16,2004 and sentenced on September 1, 2004, pursuant to the then-mandatory Guidelines. At the sentencing hearing, the court ordered Williams to pay restitution in the amount of $2,051,642.16 to the health insurance companies and drug manufacturer that paid for medically unnecessary office visits and the OxyContin that he prescribed illegally.

II. ISSUES ON APPEAL

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