United States v. Ignasiak

• Decision Date: 19 January 2012
• Docket Number: 09–16005 and 10–11074.,Nos. 09–10596,s. 09–10596
• Citation: 667 F.3d 1217,23 Fla. L. Weekly Fed. C 701
• Parties: UNITED STATES of America, Appellee, v. Robert L. IGNASIAK, Jr., Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

23 Fla. L. Weekly Fed. C 701

667 F.3d 1217

UNITED STATES of America, Appellee,

v.Robert L. IGNASIAK, Jr., Appellant.

Nos. 09–10596

09–16005 and 10–11074.

United States Court of Appeals, Eleventh Circuit.

Jan. 19, 2012.

G. Richard Strafer, G. Richard Strafer, P.A., Roy E. Black, Black, Srebnick & Kornspan, Jacqueline L. Perczek, Black, Srebnick, Kornspan & Stumpf, PA, Mark D. Seiden, Miami, FL, Clayton J.M. Adkinson, Clayton J.M. Adkinson, Defuniak Springs, FL, Barry W. Beroset, Beroset & Keene, Pensacola, FL, for Appellant.

Nancy J. Hess, Benjamin W. Beard, U.S. Atty., Pamela Adele Moine, Pensacola, FL, E. Bryan Wilson, U.S. Atty., Thomas F. Kirwin, Tallahassee, FL, for Appellee.

Appeal from the United States District Court for the Northern District of Florida.

Before EDMONDSON, MARTIN and COX, Circuit Judges.

MARTIN, Circuit Judge:

The Appellant, Robert L. Ignasiak, until this case a medical doctor licensed by the State of Florida, appeals his convictions for dispensing controlled substances in violation of the Controlled Substances Act (“CSA”) and for health care fraud. Ignasiak was charged in a fifty-four count indictment with fourteen counts of health care fraud in violation of 18 U.S.C. § 1347, and forty counts of dispensing controlled substances in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). The government's theory of prosecution for both sets of charges was substantially the same—that Ignasiak had prescribed unnecessary or excessive quantities of controlled substances without a legitimate medical purpose and “outside the usual course of professional practice.” All fifty-four counts of the indictment related to the treatment of twenty patients. Two of the counts, twenty-eight and forty-eight, further charged that “death resulted” from the use of controlled substances prescribed by Ignasiak to two of the twenty patients, M.B. and B.E.

A jury found Ignasiak guilty of forty-three of the fifty-four counts charged. He was sentenced to a total term of 292–months imprisonment, the bottom end of his advisory guideline range. Ignasiak's convictions resulted in three separate but related appeals to this Court, all of which are disposed of in this opinion.¹ In his merits appeal, Ignasiak claims: (1) that the evidence did not support his convictions; (2) that the District Court abused its discretion by rejecting his proposed jury instructions on Florida law governing the use of controlled substances; (3) that the District Court abused its discretion by allowing expert witnesses to testify as to the ultimate legal issues; (4) that the District Court erred or abused its discretion by allowing the introduction of autopsy reports or handwritten medical notes without requiring testimony by their authors, in violation of the Confrontation Clause and the rules of evidence; and (5) that the District Court abused its discretion under the rules of evidence by “allowing uncharged conduct to become the feature of the trial.” After carefully reviewing the record and having the benefit of oral argument, we reverse Ignasiak's convictions because the admission of autopsy reports and testimony about those reports, without live in-court testimony from the medical examiners who actually performed the autopsies (and where no evidence was presented to show that the coroners who performed the autopsies were unavailable and the accused had a prior opportunity to cross-examine them), violated the Confrontation Clause under the facts of this case. Because we conclude that the fourth issue is dispositive, we decline to address the other issues raised in Ignasiak's merits appeal,² except for the sufficiency of the evidence claim. ³ While we ultimately conclude that the evidence was sufficient, the degree to which we view the government's case as less than overwhelming compels our conclusion that the Confrontation Clause violation was not harmless in this case. To give our harmful error determination sufficient context, it is necessary to describe the evidence in some detail.

I. STATEMENT OF FACTS AND PROCEDURAL HISTORY

During Ignasiak's nineteen day trial, the government presented forty-one witnesses, including patients, patients' family members, former clinic employees, and various expert witnesses. The government also introduced exhibits including the medical charts for the twenty patients at issue in the indictment, autopsy reports, thousands of prescriptions written by Ignasiak and finally the medical charts and autopsy reports of other patients not referenced in the indictment.

Until his retirement on December 15, 2005, Ignasiak operated a medical clinic in Freeport, Florida, a rural town in the Florida Panhandle where he was the only medical doctor. He had a busy medical practice and typically saw between thirty to thirty-two patients each day at fifteen-minute intervals. Most patients came to renew their prescriptions, and those who worked at the clinic testified that Ignasiak always interviewed and examined his patients before they got a prescription. In addition to his regularly scheduled appointments, Ignasiak saw “work-in” patients, people who became sick and needed to see a doctor right away, at the rate of one or two per hour. As one former employee who worked at the clinic affirmed during the trial, “if somebody was sick in Freeport and needed to see a doctor that particular day, they would come to see Dr. Ignasiak.”

In the spring of 2005, the federal Agency for Health Care Administration (ACHA) undertook a review of Ignasiak's files due to concern that, as a family practice doctor, he was regularly billing for higher-than-normal levels of service.⁴ The auditor, Dr. Timothy Walker, reviewed thirty of Ignasiak's patients' charts that were selected by ACHA out of more than 3,700 charts. He found that Ignasiak's charts did not justify the charges he was submitting to Medicaid because they consistently failed to document a detailed history or detailed physical exam. As Dr. Walker explained with regard to the assumption he made in reviewing the file: “if it's not documented, it didn't happen.” Dr. Walker was more concerned, however, about what he perceived as Ignasiak's practice of prescribing certain combinations of narcotic pain-killers in significant quantities. Of the thirty charts that he reviewed, Dr. Walker found that, aside from six children who were not receiving narcotics, most of the remaining twenty-four adults were receiving some combination of narcotic drugs. But Dr. Walker acknowledged that the charts also contained prescriptions for non-pain medication for treating illnesses such as “hypertension, cholesterol, diabetes, migraines, [and] peptic ulcers.” Ignasiak requested a peer meeting with Dr. Walker to review his billing. Dr. Walker agreed but informed Ignasiak that he also wanted an explanation of Ignasiak's prescription of controlled substances. Dr. Walker did not hear back from Ignasiak.

By December of 2005, Ignasiak had retired and sold his Freeport medical practice to Hospital Corporations of America (HCA), which sent a replacement doctor. Dr. Maurice Marholin, a chiropractor, arrived at the clinic on January 23, 2006, following a several week period where there was no doctor present. Upon reviewing the patient files in preparation for his first visits, he was alarmed by the quantity of controlled substances being prescribed, and believed the defendant had been operating a pain management clinic rather than a family practice.⁵ Dr. Marholin was not equipped to run a pain management clinic and communicated his concerns to HCA, which posted a memo on the clinic's front door informing patients that narcotics would not be prescribed for two weeks. Patients who expected that Dr. Marholin would write pain medications were visibly angry when he did not.⁶ Dr. Marholin feared for his safety and began to wear a bullet-proof vest.

Dr. Marholin also noted that patients were coming from considerable distances, and he “thought that [it was] unusual that people would drive past so many qualified doctors just to come to this clinic for pain management.” Indeed, although the government never calculated the total number of the defendant's prescriptions, it did determine that 44,083 of them during a five-year period were for controlled substances, such as hydrocodone, alprazolam, diazepam, oxycodone, and carisoprodol. Of these 44,083 prescriptions, a relatively small number were not for Florida patients.⁷ According to Dr. Marholin, the medical practice rapidly declined as a result of his refusal to prescribe pain medications. In February 2006, the government seized all the patient files.

Three other individuals who were involved in the transition also testified for the government. A nurse, Stephanie Hughes, who worked for Ignasiak for only six weeks, testified over objection that numerous unidentified patients came for appointments, asking for prescription refills. It was “common” for Ignasiak to prescribe Duragesic⁸ patches, which she testified was “strange” and “troubled” her. There was also a government expert who later testified that large doses of fentanyl are used “not infrequently, for chronic, nonmalignant pain by some doctors,” and that he himself “ha[s] patients on fentanyl patches ... who are clear headed and work every day.” And Hughes acknowledged that no patients got prescriptions without first being examined by Ignasiak. In Hughes's experience, fentanyl patches were only written for terminally ill patients.

Rebecca Clark worked briefly in Ignasiak's clinic from sometime in 2004 until he retired, and recalled the transition period. Clark testified that Ignasiak saw many patients, sometimes as many as six in an hour, and that the majority were not there because they were, in Clark's terms, “sick,” but rather to get monthly medication refills. A third witness, Dr. Gregory Staviski, a pain management specialist, saw approximately twenty-four of Ignasiak's patients referred to him by Dr....