United States v. Pellmann

• Decision Date: 10 February 2012
• Docket Number: No. 10–3626.,10–3626.
• Citation: 668 F.3d 918
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Roger A. PELLMANN, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

668 F.3d 918

UNITED STATES of America, Plaintiff–Appellee,

v.Roger A. PELLMANN, Defendant–Appellant.

No. 10–3626.

United States Court of Appeals, Seventh Circuit.

Argued June 1, 2011.Decided Feb. 10, 2012.

Matthew L. Jacobs (argued), Attorney, Office of the United States Attorney, Milwaukee, WI, for Plaintiff–Appellee.

Brendan J. Rowen (argued), Attorney, Smith, Gunderson & Rowen, S.C., Brookfield, WI, for Defendant–Appellant.

Before FLAUM and SYKES, Circuit Judges, and CONLEY, District Judge. ^*CONLEY, District Judge.

Roger A. Pellmann was convicted by a jury of (1) distributing fentanyl, a Schedule II narcotic controlled substance in violation of 21 U.S.C. § 841(a)(1); and (2) obtaining morphine by misrepresentation, fraud, and deception in violation of 21 U.S.C. § 843(a)(3). On appeal, Pellmann argues that his conviction should be overturned because the government failed to introduce expert testimony to prove that he distributed Schedule II narcotics outside of his professional practice and for other than legitimate medical purposes. Pellmann also maintains that the district court improperly enhanced his sentence for obstruction of justice. Because the jury's verdict is supported by overwhelming evidence and the district court's sentencing enhancement based on Pellmann's having lied to the U.S. Drug Enforcement Administration (“DEA”) agents is more than reasonable under the circumstances, we affirm the district court's judgment.

I

In considering trial evidence, the court gives “a jury verdict great deference and will uphold the verdict if, viewing the evidence in the light most favorable to the government, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” See United States v. Baker, 655 F.3d 677, 684 (7th Cir.2011) (citing United States v. Hicks, 368 F.3d 801, 804–05 (7th Cir.2004)). It is not our role to “re-weigh the evidence or second guess the jury's credibility determinations.” Baker, 655 F.3d at 684 (citing United States v. Stevens, 453 F.3d 963, 965 (7th Cir.2006)). The evidence admitted at trial supports the following findings by the jury.

A. Background

Pellmann was a medical doctor licensed to practice in Wisconsin, and board certified in radiology, interventional radiology, and phlebology (the study and treatment of vein disease). During the previous decade, Pellmann owned and operated two businesses: the Pellmann Center for Medical Imaging in New Berlin, Wisconsin, which provided imaging services, such as MRI and CT scans; and the Pellmann–Evans Vein and Laser Clinic in Germantown, Wisconsin, which provided treatments for varicose veins. As a practicing physician, Pellmann was also registered with the DEA, which authorized him to order, prescribe and administer controlled substances under appropriate circumstances.

As part of his practice at his medical clinics, Pellmann administered fentanyl to his patients to treat pain. Like morphine, fentanyl is a Schedule II narcotic pain reliever, but more effective because it is short-acting and has 100 times the potency. Pellmann's staff testified at trial that a patient would typically receive one vial of fentanyl during a procedure and, at most, three to five vials. From 2005 through 2008, Pellmann ordered no morphine and no more than 260 units of fentanyl per year.

In 2009, these orders changed dramatically. That year alone, Pellmann ordered substantial quantities of morphine and more than 7,000 dosage units of fentanyl, which represents a more than 27–fold increase over purchases in prior years. Unsurprisingly, this sharp increase caught the attention of the DEA, prompting an investigation.

B. DEA Investigation

As part of its investigation, the DEA obtained records of prescriptions for controlled substances issued by Pellmann and filled at certain pharmacies in Wisconsin between 2007 and 2009. These records revealed that Pellmann was issuing a large percentage of his prescriptions to Jacquelynn Evans, a registered nurse.

Evans had begun working for Pellmann in September 2005, first as a nurse and eventually as vice president of the vein clinic. Evans considered Pellmann her primary care physician, even though he was a radiologist. Over the years, Pellmann treated Evans for sinusitis, bronchitis, gastroenteritis, low back pain, and migraine headaches, and also treated members of her family. Evans testified she loved Pellmann and considered him her best friend.

On November 3, 2009, federal agents collected discarded trash from Evans' residence. In the trash, agents found 421 empty vials of fentanyl, 13 empty vials of morphine, an empty 20–milliliter bottle of morphine, packaging materials and inserts for fentanyl and morphine, used syringes, needles, band-aids, and alcohol swabs. Based on this evidence, the DEA obtained search warrants for Pellmann's vein clinic and Evans' residence, which they executed on November 12, 2009.

Evans' home revealed more of the same. Agents found a variety of needles, syringes, other medical supplies, packaging materials, and full and empty vials of fentanyl and morphine. The vials were found in numerous locations throughout her home: scattered on a desk in her study, in an overnight bag also in the study, in the kitchen, in the trash in the garage, in Evans' car, in the master bedroom and bathroom, and in Evans' purse. In a bathroom closet, agents discovered two large plastic containers filled with used needles and hundreds, if not thousands, of empty fentanyl and morphine vials.

At the vein clinic, agents found dispensing logs for fentanyl, but no records reflecting Pellmann's acquisition or use of morphine. The agents also located seven unopened vials of fentanyl and no morphine.

DEA agents also interviewed Pellmann, during which he eventually acknowledged that Evans was his patient and that he had been treating her with fentanyl and morphine. Pellmann reported giving Evans fentanyl every day, increasing over time from 10 to 20 vials to 50 vials per day, as well as morphine. Pellmann stated that he delivered and administered fentanyl and morphine at Evans' home and at his house. Pellmann also acknowledged that he had not documented his treatment of Evans, nor were the agents able to uncover any records reflecting Pellmann's treatment of Evans at the clinic. During this same interview, Pellmann also told the agents that he was injecting himself with morphine to treat a neck injury.

After obtaining Pellmann's consent, the agents proceeded to search Pellmann's car and home. Inside the car, the agents recovered a large box containing 600 vials of fentanyl and 10 boxes of morphine. When asked why the drugs were in his car, Pellmann reported that he was transporting them to his home for safekeeping after a recent theft at the clinic, and specifically denied that he was delivering them to Evans' home.

Throughout Pellmann's home, agents found numerous bottles and vials of fentanyl and morphine, both full and empty, including trays of vials in his bedroom and bathroom. In and around the sink in Pellmann's bathroom, agents found used and unused syringes with needles, alcohol wipes, and an elastic armband, presumably used to expose veins for injections. Agents also found two nails above Pellmann's bed, which at trial Pellmann and Evans both testified were used to hang bags of saline solution to facilitate Evans' use of fentanyl and morphine.

On November 17, 2009, the DEA agents again collected garbage from outside of Evans' house and recovered approximately 100 empty fentanyl vials, empty morphine vials, used syringes, and packaging material for fentanyl. On January 12, 2010, one of the nurses employed at the vein clinic contacted the DEA to report her discovery of empty fentanyl vials in the nonmedical trash, along with other medical supplies, including packaging trays for fentanyl, used syringes and bloody gauze.

On January 14, 2010, DEA agents searched Pellmann's vein clinic and arrested him. At that time, agents found 144 unopened vials of fentanyl, although the clinic's records indicated that there should have been 371 vials. Agents also found empty fentanyl vials in the trash in Pellmann's personal bathroom at the clinic.

Pellmann was charged with multiple violations of 21 U.S.C. §§ 841(a)(1) and 843(a)(3). After his initial appearance, Pellmann was released on bond. Among the conditions of his release, Pellmann was not to possess Schedule II controlled substances, employ Evans, or prescribe any drugs for her. Immediately following his release, however, Evans picked Pellmann up from the courthouse and the two spent the night at a hotel, where Pellmann administered medications to Evans. Pellmann admitted that he provided Evans with midazolam, a non-Schedule II controlled substance. Evans believed he administered fentanyl.

C. Additional Evidence at Trial

At trial, Evans testified that Pellmann began administering fentanyl in March 2009 to treat severe mouth pain stemming from a fractured tooth, which Pellmann diagnosed as trigeminal neuralgia and described as the “suicide disease,” because of the high rates of suicide associated with the condition. Pellmann administered fentanyl, and later morphine, to Evans; he also provided fentanyl for Evans to administer to herself.

One of the agents testified at trial that, during the investigation, Pellmann explained Evans suffered from severe dental problems and that Evans' oral surgeon, Dr. Guy Jensen, had asked Pellmann to handle Evans' pain management. This directly contradicted Jensen's trial testimony that Evans never disclosed that she was taking fentanyl; that Evans did not exhibit symptoms of trigeminal neuralgia; that he did not know Pellmann; and that he had never discussed Evans' pain management with him or with anyone else. At trial, Pellmann acknowledged not speaking with Jensen about Evan's condition, claiming that he either misspoke during his interview with the agent or the agent misheard...