54 F.3d 1182 (4th Cir. 1995), 94-5073, United States v. Singh

Docket Nº:94-5073.
Citation:54 F.3d 1182
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Ram SINGH, Defendant-Appellant.
Case Date:June 01, 1995
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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54 F.3d 1182 (4th Cir. 1995)

UNITED STATES of America, Plaintiff-Appellee,

v.

Ram SINGH, Defendant-Appellant.

No. 94-5073.

United States Court of Appeals, Fourth Circuit

June 1, 1995

Argued Dec. 6, 1994.

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ARGUED: Carl E. McAfee, McAfee, Bledsoe & Associates, P.C., Norton, VA, for appellant. Julie Marie Campbell, Asst. U.S. Atty., Abingdon, VA, for appellee. ON BRIEF: Robert P. Crouch, Jr., U.S. Atty., Abingdon, VA, for appellee.

Before LUTTIG and WILLIAMS, Circuit Judges, OSTEEN, United States District Judge for the Middle District of North Carolina, sitting by designation.

Affirmed in part, reversed in part, and remanded for resentencing by published opinion. Judge WILLIAMS wrote the opinion, in which Judge LUTTIG and Judge OSTEEN joined.

OPINION

WILLIAMS, Circuit Judge:

In October 1993, a jury in the United States District Court for the Western District of Virginia convicted Dr. Ram Singh of distributing controlled substances outside the scope of a medical practice for other than legitimate medical purposes in violation of 21 U.S.C. Sec. 841(a) (1988), and of furnishing false information in a drug prescription in violation of 21 U.S.C. Sec. 843(a)(4)(A) (1988). On appeal, Dr. Singh challenges both his conviction and the calculation of his sentence. We conclude that the evidence was sufficient to convict on all counts, that the district court properly denied Dr. Singh's request for an entrapment instruction and his motion for a new trial, and that the district court properly calculated Dr. Singh's sentence using the gross weight of the controlled substances rather than the weight of their active ingredients. We conclude, however, that the district court failed to articulate sufficient factual findings to increase Dr. Singh's base offense level pursuant to the "vulnerable victim" adjustment of U.S.S.G. 1 Sec. 3A1.1, and, therefore, remand for resentencing.

I.

In 1987, Tim Alley, a pharmacist in Clintwood, Virginia, noticed that Dr. Singh was issuing prescriptions for controlled narcotics at a much faster rate than most other physicians in the vicinity. Mr. Alley suspected that Dr. Singh may have been overprescribing medicine to his patients, so he filed a complaint with the Virginia Board of Pharmacy. The Board, in turn, reviewed Mr. Alley's records concerning Dr. Singh's patients.

In 1991, two separate incidents again brought Dr. Singh to the attention of the Virginia authorities. First, the Virginia State Police received a complaint from Ms. Melissa Mullins reporting that Dr. Singh had offered her drugs in exchange for sexual intercourse. The police followed up on this report by having Ms. Mullins see Dr. Singh again--this time wearing a recording device--where she captured Dr. Singh's proposition on tape and obtained two prescriptions for controlled narcotics without complaining of any ailments. The Virginia State Police happened upon the second incident by accident. Vickie Justice was caught with a prescription that she had forged with Dr. Singh's name. Ms. Justice was not only a former patient of Dr. Singh, she was also his former lover. To avoid prosecution for forgery and uttering, Ms. Justice agreed to work with the authorities in their investigation of Dr. Singh. With a tape recorder in her purse, Ms. Justice obtained a prescription from Dr. Singh for Percocet, a Schedule II narcotic, in exchange for sexual intercourse. At Ms. Justice's request, Dr. Singh wrote the prescription in the name of Ms. Justice's grandfather, Edward May, an individual

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whom Dr. Singh never had examined or met.

In conjunction with its investigation of Dr. Singh and as a result of the Virginia Board of Pharmacy's inquiries, the Pharmaceutical and Drug Diversion Investigative Unit of the Virginia State Police obtained Dr. Singh's prescription records through a pharmacy survey of the area. From these records, the State Police isolated approximately one hundred patients that it suspected were the recipients of Dr. Singh's illegal distribution of scheduled narcotics. The Virginia State Police then obtained a search warrant for Dr. Singh's office. During this search, the files of the previously identified one hundred patients were seized.

The grand jury indicted Dr. Singh on twenty-four counts of knowingly, intentionally, and unlawfully distributing controlled substances outside the scope of his professional medical practice in violation of 21 U.S.C. Sec. 841(a). Based on the prescription he wrote to Ms. Justice in her grandfather's name, Dr. Singh was also charged with one count of furnishing incorrect information in medical and pharmaceutical documents in violation of 21 U.S.C. Sec. 843(a)(4)(A). He pled not guilty to all charges.

On October 7, 1993, the jury convicted Dr. Singh on seventeen of the twenty-five counts. Believing that Ms. Justice had been intimidated into testifying, Dr. Singh then made a motion for a new trial based on after-discovered evidence, which the district court subsequently rejected. At the sentencing hearing, the district court determined a base offense level of 20 based on the gross weight of the drugs distributed in the sixteen distribution counts of which Dr. Singh was convicted. The court adjusted upward two levels pursuant to U.S.S.G. Sec. 3B1.3 because Dr. Singh abused a position of trust. The district court determined that Dr. Singh had a criminal history category of I, which combined with his total offense level of 22, placed Dr. Singh in a guideline range of 41-51 months. The district court also agreed with the Government's objections to the pre-sentence report and found that Dr. Singh had preyed upon unusually vulnerable victims. The court therefore upwardly adjusted the offense level two levels under U.S.S.G. Sec. 3A1.1. This new calculation gave Dr. Singh a guideline range of 51-63 months. The district court sentenced him to concurrent terms of 51 months incarceration and a three year term of supervised release. The court further ordered him to pay a fine of $30,000. Dr. Singh appeals both his conviction and his sentence.

II.

Dr. Singh raises three challenges to his conviction. First, he argues that the evidence was insufficient to prove that the prescriptions he wrote were outside the course of a professional medical practice. Second, he appeals the district court's refusal to give the jury an entrapment instruction. Finally, he insists that the district court should have granted a new trial based on newly discovered evidence. We address each of these trial related issues in turn.

A.

In reviewing whether the evidence was sufficient to convict a defendant, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, (1979) (emphasis in original); United States v. Murphy, 35 F.3d 143, 148 (4th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 954, 130 L.Ed.2d 897 (1995). As we recently stated in Murphy, "[t]he jury, not the reviewing court, weighs the credibility of the evidence and resolves any conflicts in the evidence presented, and if the evidence supports different, reasonable interpretations, the jury decides which interpretation to believe." Murphy, 35 F.3d at 148. Therefore, "[i]f there is substantial evidence to support the verdict, after viewing all of the evidence and the inferences therefrom in the light most favorable to the Government, ... we must affirm." Id. (citations omitted).

To convict a physician of distributing a controlled substance in violation of Sec. 841, the Government must prove the following

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three elements. First, it must show that the defendant "distributed or dispensed a controlled substance." United States v. Tran Trong Cuong, 18 F.3d 1132, 1141 (4th Cir.1994). Second, it must prove that, in doing so, "he acted knowingly and intentionally." Id. Finally, and most importantly for our purposes, the evidence must show that the defendant's "actions were not for legitimate medical purposes in the usual course of his professional medical practice or [were] beyond the bounds of medical practice." Id. As the Sixth Circuit has noted, "[t]here are no specific guidelines concerning what is required to support a conclusion that an accused acted outside the usual course of professional practice. Rather, the courts must engage in a case-by-case analysis of evidence to determine whether a reasonable inference of guilt may be drawn from specific facts." United States v. August, 984 F.2d 705, 713 (6th Cir.1992) (citations omitted), cert. denied, --- U.S. ----, 114 S.Ct. 158, 126 L.Ed.2d 119 (1993); see also Tran Trong Cuong, 18 F.3d at 1137-38. Dr. Singh challenges the sufficiency of the evidence on the third element as to most of his Sec. 841(a)(1) convictions.

Dr. Singh argues that, at best, the evidence in all the challenged counts shows only a difference of medical opinion. He contends that each one of these patients came to him with a serious medical need that he diagnosed and properly treated with medication. If some of them were lying about the extent of their pain or ailment, he was unable to tell. All in all, Dr. Singh argues that "[t]here was no evidence that [he] did not act in good faith in the honest exercise of his best professional judgment as to these patients' needs." (Brief of Appellant at 15-16.) We disagree.

The patients concerned in all but two of the Sec. 841 counts testified at trial. Each one testified that he or she developed an addiction to scheduled narcotics (or a behavior tantamount to an addiction) either before or during their treatment from Dr. Singh. Dr. Singh continued to prescribe addictive drugs to each one of these...

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