U.S. v. McIver

• Citation: 470 F.3d 550
• Decision Date: 05 December 2006
• Docket Number: No. 05-4884.,05-4884.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ronald A. McIVER, Defendant-Appellant, and All Out Bail Bonding; Giggies Bonding Company, Parties in Interest.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

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470 F.3d 550 UNITED STATES of America, Plaintiff-Appellee,
v.
Ronald A. McIVER, Defendant-Appellant, and
All Out Bail Bonding; Giggies Bonding Company, Parties in Interest. No. 05-4884. United States Court of Appeals, Fourth Circuit. Argued: September 21, 2006. Decided: December 5, 2006.

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ARGUED: John Philip Flannery, II, Campbell, Miller & Zimmerman, P.C., Leesburg, Virginia, for Appellant. William Corley Lucius, Assistant United States Attorney, Office of the United States Attorney, Greenville, South Carolina, for Appellee. ON BRIEF: Eli D. Stutsman, Portland, Oregon; C. Rauch Wise, Greenwood, South Carolina, for Appellant. Jonathan S. Gasser, United States Attorney, Columbia, South Carolina, for Appellee.

Before WILKINSON and DUNCAN, Circuit Judges, and RICHARD L. VOORHEES, United States District Judge for the Western District of North Carolina, sitting by designation.

Affirmed by published opinion. Judge DUNCAN wrote the opinion, in which Judge WILKINSON and Judge VOORHEES concurred.

OPINION

DUNCAN, Circuit Judge:

The field of pain management has generated controversy because of its reliance on opiate-based pain medications (opioids), which are also a target of the government's war on drugs. See Diane E. Hoffmann & Anita J. Tarzian, Achieving the Right Balance in Oversight of Physician Opioid Prescribing for Pain: The Role of State Medical Boards, 31 J.L. Med. & Ethics 21, 22-23 (2003). The government has recently become more aggressive in prosecuting doctors who unlawfully distribute opioids and other prescription drugs under the guise of legitimate medical practice. See United States v. Hurwitz, 459 F.3d 463 (4th Cir.2006); United States v. Feingold, 454 F.3d 1001 (9th Cir. 2006); United States v. Williams, 445 F.3d 1302 (11th Cir.2006); United States v. Alerre, 430 F.3d 681 (4th Cir.2005). The charges against Dr. Ronald A. McIver ("Appellant") arose from his prescription of pain medications to patients at a pain clinic. He appeals his conviction for various counts of unlawful distribution of a controlled substance, unlawful distribution of a controlled substance resulting in death, and conspiracy to unlawfully distribute a controlled substance. For the reasons that follow, we affirm.

I.

Appellant is a doctor of osteopathic medicine¹ who was licensed to prescribe controlled

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substances under the Controlled Substances Act, 21 U.S.C. § 801 et seq. He operated a medical clinic in Greenwood, South Carolina that specialized in treating chronic pain. The United States Drug Enforcement Administration ("DEA") began investigating Appellant in 2002 after receiving information about his prescribing practices from the Columbia, South Carolina police department. J.A. 682-83.² During its investigation, the DEA discovered that Appellant had prescribed massive quantities of oxycodone,³ Dilaudid,⁴ OxyContin,⁵ methadone,⁶ and morphine⁷ to his patients. J.A. 687-88. The investigation also uncovered a disturbing pattern among Appellant's patients. These patients included admitted drug addicts who traveled significant distances to see him, appeared without referrals, paid in cash, and sought specific drugs which were prescribed for them based on little or no physical examination.

The government indicted Appellant on fifteen counts related to his treatment of ten patients, nine of whom testified for the government at trial. The remaining patient, Larry Shealy, was deceased; his death formed the basis of two counts of the indictment.

After trial, the jury convicted Appellant of one count of conspiracy to distribute controlled substances unlawfully in violation of 21 U.S.C. § 846 (2000) (Count 1), six counts of unlawful distribution of a controlled substance in violation of 21 U.S.C. § 841(a)(1) (2000) (Counts 3-5, 13-15), and two counts of unlawful distribution of a controlled substance resulting in the death of Larry Shealy in violation of § 841(a)(1) & (b)(1)(C) (Counts 11, 12).⁸ The district court sentenced Appellant to 240 months on Counts 1, 3, 4, 5, 13, 14, and 15, and 360 months on Counts 11 and 12, to run concurrently. Appellant timely appealed.

We turn now to a consideration of the facts relevant to this appeal, beginning with those involving the six patients whose experiences underlie Appellant's convictions. In the context of Appellant's challenges to the sufficiency of the evidence, we recite those facts in the light most favorable to the government. United States v. Rahman, 83 F.3d 89, 93 (4th Cir.1996). We then discuss the testimony

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of the government's expert witness, Dr. Steven Storick, and the district court's jury instruction on the § 841(a)(1) charges.

A. Larry Shealy

Larry Shealy sought treatment from Appellant for back and knee pain. J.A. 416. Appellant treated Shealy almost exclusively with large quantities of various simultaneous combinations of morphine, Oxycontin, oxycodone, and methadone. J.A. 526. Shealy's son, who accompanied his father to many of his appointments, only observed his father receive non-drug therapy once. J.A. 416-17.

Shealy's son testified that after Shealy started seeing Appellant, his father's demeanor changed dramatically. J.A. 417-19. In addition to losing his appetite and weight, Shealy became somnolent and irritable. J.A. 418. On one occasion, Shealy backed his truck into a tree, apparently without realizing he had done so. J.A. 417-18. These changes so worried Shealy's son that he counseled his father to stop seeing Appellant. J.A. 419. Shealy, however, continued seeing Appellant until he died from an oxycodone overdose. J.A. 419-20, 427-30, 456. The level of drugs in Shealy's system when he died was consistent with the amounts Appellant prescribed. J.A. 427-30.

A representative of the company that provided Shealy health insurance testified that the amount and cost of the drugs prescribed to Shealy, along with the frequency of dosage, "was as high as [he had] ever seen." J.A. 134-35. The representative became so concerned about Shealy's prescriptions that he contacted the DEA. J.A. 134.

B. Barbee Brown

Barbee Brown sought treatment from Appellant primarily for reflex sympathetic dystrophy, a chronic neurological condition that causes severe pain. J.A. 518-19. Appellant knew from the outset that Brown had a history of prescription drug and cocaine abuse. J.A. 207-08, 519. He nevertheless prescribed OxyContin, oxycodone, and, later, methadone in various simultaneous combinations for her. J.A. 518-23. Appellant also allowed Brown to manage her own dosing without specifying a maximum amount. J.A. 208. Brown's father wrote to Appellant to express concern about his daughter's treatment, stating that, since coming to see Appellant, Brown had been in a "drug state," "unstable in her speech and ha[d] threatened to kill" her father. J.A. 233, 520. Appellant continued prescribing opioids to Brown, however, maintaining that, if anything, her dose was too low. J.A. 521.

Appellant stopped treating Brown abruptly after less than two months when her insurance stopped covering his care. J.A. 211. He took no steps to wean her from the opioids, however, and she was hospitalized for four days with severe drug withdrawal symptoms. J.A. 211-12.

C. Leslie Smith

Leslie Smith sought treatment from Appellant specifically to obtain prescription painkillers. J.A. 176. Smith traveled sixty miles each way to see Appellant after learning that he had readily prescribed drugs to one of Smith's friends. J.A. 175-76. Smith testified that he lied to Appellant about pain in his wrist, but that Appellant prescribed high doses of OxyContin and Dilaudid, the drugs that Smith requested, without ordering x-rays. J.A. 178, 180-183. At trial, Smith admitted that he was a drug addict and injected these drugs to satisfy his habit. J.A. 176. Evidence indicates that Appellant was aware of Smith's drug use; Appellant discovered a syringe in Smith's possession during a visit, but on being told that Smith

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used it for fishing, continued to prescribe Smith's drugs. J.A. 185.

Appellant eventually became sufficiently suspicious that Smith was either using or selling his medications to write to the South Carolina Department of Health and Environmental Control to express those concerns. J.A. 180-81, 684. Appellant, however, continued prescribing drugs to Smith after writing the letter. J.A. 181-82.

D. Seth Boyer

Like Smith, Seth Boyer learned of Appellant from friends and began traveling more than an hour to see him specifically to obtain prescription drugs. J.A. 248, 250-51. Boyer came to his first appointment with Appellant with track marks on his arms from intravenous drug use. J.A. 250-51, 253. Boyer complained of pain in his foot, but, as with Smith, Appellant did not x-ray it before prescribing OxyContin, OxyFast, and Dilaudid. J.A. 249-50, 253. Boyer both used and sold these drugs. J.A. 253. On one occasion, Boyer lied to Appellant about spilling a bottle of liquid oxycodone, and Appellant refilled the prescription immediately. J.A. 255.

E. Kyle Barnes

Kyle Barnes started seeing Appellant for treatment of fibromyalgia, a chronic condition characterized by widespread pain and stiffness, after her former provider was closed by the government because of its prescribing practices. J.A. 347. When Appellant first began treating her, Barnes was addicted to oxycodone. J.A. 346. Even though Barnes was poor and receiving Medicaid, she traveled nearly three hours to see Appellant, paid for his services in cash and filled prescriptions for thousands of dollars worth of medications. J.A. 350, 353, 359, 530.

Appellant prescribed Barnes massive doses of methadone, OxyContin, oxycodone and morphine in various simultaneous combinations. J.A. 354, 356, 529. In one year, Appellant prescribed Barnes 20,562 individual doses of various medications. J.A. 687. Appellant continued to prescribe methadone even after Barnes told him...