U.S. v. Armstrong

• Decision Date: 21 November 2008
• Docket Number: No. 07-30286.,07-30286.
• Citation: 550 F.3d 382
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Cherlyn R. ARMSTRONG, also known as Cherlyn Cookie Armstrong, also known as Cherlyn Cookie Armstrong-Scherer, also known as Cherlyn Cookie Prejean, also known as Cherlyn Armstrong Scherer Prejean; Dr. Suzette Cullins, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

550 F.3d 382

UNITED STATES of America, Plaintiff-Appellee, v. Cherlyn R. ARMSTRONG, also known as Cherlyn Cookie Armstrong, also known as Cherlyn Cookie Armstrong-Scherer, also known as Cherlyn Cookie Prejean, also known as Cherlyn Armstrong Scherer Prejean; Dr. Suzette Cullins, Defendants-Appellants.

No. 07-30286.

United States Court of Appeals, Fifth Circuit.

November 21, 2008.

Tony Gordon Sanders (argued) and Stephen A. Higginson, Asst. U.S. Attys., New Orleans, LA, for U.S.

Michael S. Fawer (argued), Smith & Fawer, Covington, LA, for Armstrong.

Virginia Laughlin Schlueter, Fed. Pub. Def., Robin Elise Schulberg (argued), New Orleans, LA, for Cullins.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before HIGGINBOTHAM, STEWART and SOUTHWICK, Circuit Judges.

CARL E. STEWART, Circuit Judge:

Defendants Cherlyn Armstrong Scherer Prejean ("Armstrong"), the Scherer Corporate Defendants,¹ and Dr. Suzette Cullins ("Dr. Cullins" and collectively, the "Defendants") were convicted following a jury trial of offenses relating to a scheme to illegally dispense certain controlled substances in violation of the Controlled Substances Act (the "CSA"), 21 U.S.C. §§ 846, 841(a). Armstrong and Dr. Cullins appeal from their convictions under the CSA. Armstrong also challenges certain evidentiary rulings that she argues tainted her conviction for conspiracy to commit money laundering. Dr. Cullins appeals the reasonableness of her sentence. For the following reasons, we AFFIRM in part, REVERSE in part, and REMAND to the district court.

FACTUAL AND PROCEDURAL BACKGROUND

Armstrong, a Registered Nurse, was the owner and operator of weight loss and pain management clinics and pharmacies, located in Slidell, Metairie, and, at various times, Harvey or Gretna, Louisiana. Her family members provided continual and active assistance in their operation. From approximately January 1998 to August 2000, the clinics' focus was on weight loss, and prescriptions were given for controlled-substance weight-loss drugs. In or around August 2000, the focus changed to pain management, and prescriptions were given for controlled-substance pain management drugs. The three drugs ("trinity drugs") most often prescribed at the clinics and dispensed at the pharmacies during this time included: (1) Hydrocodone;² (2) Alprazolam or Diazepam;³ (3) and Carisoprodol.⁴ Armstrong's pharmacies only stocked and sold the generic versions of the trinity drugs. The drugs have a high abuse potential and a high illegal street market value.

After an investigation, agents of the Drug Enforcement Agency ("DEA") shut the clinics down in April 2005. Armstrong, the various corporate entities which she established, including the pharmacies and clinics ("Corporate Defendants"), and three physicians employed at the clinics⁵ were charged with knowingly and intentionally conspiring to dispense Schedule III and IV controlled substances in violation of the CSA. See 21 U.S.C. § 846. A superseding indictment was later returned charging an additional twenty-six specific instances (counts 2-27) in which Armstrong, the clinics, and the pharmacies, aided and abetted by persons known and unknown—including Drs. Cullins, Guenther, and DeLoach—knowingly and intentionally dispensed controlled substances, outside the scope of professional practice and not for a legitimate medical purpose, in violation of 21 U.S.C. § 841(a)⁶ and 18 U.S.C. § 2. These alleged instances involved either an undercover DEA agent as a patient or an actual patient as an informant at the direction of the DEA. Lastly, Armstrong and the Corporate Defendants were charged with conspiring to launder money involving the proceeds of the illegal drug activity, in violation of 18 U.S.C. § 1956(h) (count 28).

Prior to trial, two of the co-defendant physicians named in the superseding indictment, Dr. Guenther and Dr. DeLoach, pled guilty to various charges. Dr. Guenther pled guilty to all charged counts,⁷ and Dr. DeLoach pled guilty to misprision of a felony in violation of 18 U.S.C. § 4. The remaining Defendants—Armstrong, Dr. Cullins, and the Corporate Defendants— proceeded to trial. The jury found all Defendants guilty of the conspiracy charged in count one and various substantive counts charged in counts two through 27 of the superseding indictment.⁸ Armstrong and the Corporate Defendants were also found guilty on count 28, conspiring to commit money laundering.

Following trial, Armstrong and Dr. Cullins filed a motion for judgment of acquittal or in the alternative for a new trial, which was denied. The Government filed sentencing memoranda seeking an upward departure based on injuries to specific victims, including patients, their families, and the community, because these victims were not taken into account by the Sentencing Guidelines. Armstrong and Dr. Cullins responded. At the sentencing hearing, the district court adopted the factual findings and recommendations of the pre-sentencing report ("PSR"). Dr. Cullins did not object to the factual findings of her PSR. The district court sentenced Dr. Cullins to sixty-month sentences for each of her CSA convictions, to be served concurrently. Thereafter, the district court also sentenced Armstrong to sixty-month concurrent sentences for each of her CSA convictions, and a seventy-month concurrent sentence for conspiracy to commit money laundering. Armstrong, Dr. Cullins, and Corporate Defendants timely appealed. This Court dismissed Corporate Defendants' appeal for want of prosecution on August 24, 2007.⁹ As a result, this Court reviewed only the appeals of Armstrong and Dr. Cullins (together, the "Appellants").

ILLEGAL DISPENSATION OF CONTROLLED SUBSTANCES

I. Sufficiency of the Evidence

A. Lack of Expert Testimony

Armstrong and Dr. Cullins argue that because the Government failed to present expert testimony regarding what the professional standard of care should be for a physician prescribing controlled substances to chronic pain patients, there was insufficient evidence for the jury to find beyond a reasonable doubt that Appellants' conduct was outside the course of professional conduct.

1. Standard of Review

In evaluating whether the evidence produced at trial is sufficient to support a jury conviction, this Court examines whether a rational jury, viewing the evidence in the light most favorable to the prosecution, could have found the essential elements of the offense to be satisfied beyond a reasonable doubt. See United States v. Miles, 360 F.3d 472, 476-77 (5th Cir.2004). In reviewing the evidence, all reasonable inferences are drawn in favor of the jury's verdict. Id. This Court does not evaluate whether the jury's verdict was correct, but rather, whether the jury's decision was rational. Id. If the evidence "gives `equal or nearly equal circumstantial support to a theory of guilt or innocence, we must reverse the conviction, as under these circumstances a reasonable jury must necessarily entertain a reasonable doubt.'" United States v. Rivera, 295 F.3d 461, 466 (5th Cir.2002) (internal citations omitted).

2. Discussion

The evidence presented at trial, viewed in the light most favorable to the Government, supports the jury's guilty verdicts as to Armstrong and Dr. Cullins on the conspiracy charge under § 846 (count one) and on the substantive violations under § 841 (counts 2-27). Even without expert testimony, the Government demonstrated at trial that Armstrong and her co-conspirators organized and ran a continuous scheme of delivering controlled substances to a high volume of individuals for profit rather than a valid medical purpose.

Although Armstrong and Dr. Cullins argue that the Government did not meet its evidentiary burden because it did not put on expert testimony, "expert testimony is not always required in order to show that a physician is acting for other than proper medical purposes [in violation of § 841]." United States v. Chin, 795 F.2d 496, 503 (5th Cir.1986) (citing United States v. Rosen, 582 F.2d 1032, 1037 n. 10 (5th Cir. 1978)). While expert testimony may be both permissible and useful, a jury can reasonably find that a doctor prescribed controlled substances not in the usual course of professional practice or for other than a legitimate medical purpose from adequate lay witness evidence surrounding the facts and circumstances of the prescriptions. United States v. Rogers, 609 F.2d 834, 839 (5th Cir.1980). There are § 841 cases in which the trier of fact does not need outside, specialized knowledge to understand the evidence or determine the facts.¹⁰ See United States v. Word, 806 F.2d 658, 663-64 (6th Cir.1986) (finding that expert testimony about the usual course of professional conduct and legitimate medical purposes may help a jury, it was not necessary on the facts of the case on appeal); United States v. Smurthwaite, 590 F.2d 889, 892 (10th Cir.1979) (finding expert testimony unnecessary to prove prescriptions were outside of professional practice where evidence included visits less than five minutes in length, charging patients per prescriptions, little or no physical examination of patients at initial or follow-up visits, and defendant had some knowledge that prescriptions pills were used for parties rather than weight-loss); United States v. Larson, 507 F.2d 385, 387 (9th Cir.1974) (similar). Jurors have had a wide variety of their own experiences in doctors' care over their lives, thus and expert testimony is not necessarily required for jurors to rationally conclude that seeing patients for as little as two or three minutes before prescribing powerful narcotics is not in the usual course of professional conduct.

There are also undoubtably situations where evidence as to the usual course of professional conduct might be essential proof of the Government's case. But here there is ample evidence of conduct outside the usual course of any professional practice and/or without medical...