709 F.3d 1082 (11th Cir. 2013), 09-11984, United States v. Joseph

Docket Nº:09-11984.
Citation:709 F.3d 1082
Opinion Judge:PRYOR, Circuit Judge:
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Jack Kelly JOSEPH, Dorothy Mack, Spurgeon Green, Jr., Defendants-Appellants.
Attorney:Laura D. Cooper, Laura D. Cooper, Eugene, OR, Franklin J. Hogue (Court-Appointed), Laura D. Hogue (Court-Appointed), Hogue & Hogue, Macon, GA, for Defendants-Appellants. David Lieberman, Dept. of Justice, Crim. Div., Washington, DC, Jennifer Kolman, Michelle Schieber, U.S. Attys., Macon, GA, for ...
Judge Panel:Before MARCUS and PRYOR, Circuit Judges, and FRIEDMAN,[*] District Judge. FRIEDMAN, District Judge, concurring:
Case Date:February 21, 2013
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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709 F.3d 1082 (11th Cir. 2013)

UNITED STATES of America, Plaintiff-Appellee,

v.

Jack Kelly JOSEPH, Dorothy Mack, Spurgeon Green, Jr., Defendants-Appellants.

No. 09-11984.

United States Court of Appeals, Eleventh Circuit.

February 21, 2013

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Laura D. Cooper, Laura D. Cooper, Eugene, OR, Franklin J. Hogue (Court-Appointed), Laura D. Hogue (Court-Appointed), Hogue & Hogue, Macon, GA, for Defendants-Appellants.

David Lieberman, Dept. of Justice, Crim. Div., Washington, DC, Jennifer Kolman, Michelle Schieber, U.S. Attys., Macon, GA, for Plaintiff-Appellee.

Appeals from the United States District Court for the Middle District of Georgia.

Before MARCUS and PRYOR, Circuit Judges, and FRIEDMAN,[*] District Judge.

PRYOR, Circuit Judge:

The main issue presented in this appeal involves a jury instruction about proving a violation of the Controlled Substances Act, 21 U.S.C. § 801 et seq., by medical professionals. A physician, his assistant, and a pharmacist convicted of violating the Act in connection with the operation of a " pill mill" argue that a jury instruction at their trial ran afoul of the decision in Gonzales v. Oregon, 546 U.S. 243, 126 S.Ct. 904, 163 L.Ed.2d 748 (2006), by evaluating their conduct against a national standard of professional practice. The indictment charged Spurgeon Green Jr., a physician, and Dorothy Mack, a physician's assistant at Green's clinic, with dispensing or distributing controlled substances to drug abusers and drug pushers without a legitimate medical purpose and outside the usual course of professional conduct, 21 U.S.C. § 841(a). The indictment also charged Jack Kelly Joseph, a pharmacist, with unlawfully filling many of the prescriptions for the drugs, id. And the indictment charged Green, Mack, and Joseph with conspiring to violate the Act, id. § 846. The defendants' argument, raised for the first time on appeal, that the jury instruction ran afoul of Gonzales fails because it is based on a misreading of that instruction, which instead required the prosecution to prove that the defendants' conduct failed to comply with any accepted standard of practice. The defendants' remaining arguments about the jury instructions, the sufficiency of the evidence, the admission of testimony by a police investigator, a search warrant of Green's home, and the

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reasonableness of Green's sentence fail too. We affirm their convictions and Green's sentence.

I. BACKGROUND

From 1992 to 2003, Green operated a medical clinic in Perry, Georgia. Houston County police became suspicious that Green's medical clinic was not an ordinary doctor's office after they received complaints about long lines of people waiting outside the clinic. Police conducted surveillance of the clinic and observed that the parking lot outside the clinic was often full of patients waiting to see Green. Green's patients frequently arrived in groups of three or four people and in cars with license plates that suggested they had traveled from other counties in Georgia or from other states. Police also conducted sixty-four trash pulls from the dumpster outside the clinic, and they conducted traffic stops of vehicles departing the clinic to identify the occupants of those vehicles. Police learned that many of Green's patients had their prescriptions filled at a pharmacy that was owned and operated by Joseph.

Police executed warrants to search Green's medical clinic, his home, and a storage unit that he maintained. The search warrants were supported by affidavits that attested that Green had unlawfully dispensed or distributed controlled substances and that evidence of Green's crimes would be found at his home. During the search, police retrieved, among other evidence, medical records from Green's clinic, about $800,000 from his home, and receipt books from his storage unit. Green filed a motion to suppress the fruits of the search of his home on the ground that the affidavit failed to provide probable cause that evidence of Green's crimes would be found there, but the district court denied the motion.

A federal grand jury returned an 89-count second superseding indictment charging Green, Joseph, and Mack with violations of the Controlled Substances Act. The indictment charged that Green, with the assistance of Mack, prescribed controlled substances outside the usual course of professional practice to patients who had no legitimate medical need for those substances, and that Joseph filled those prescriptions even though he knew that Green and Mack issued the prescriptions without any legitimate medical need and outside the usual course of professional practice. The indictment charged that these actions violated section 841(a)(1) of the Act, which provides that, " [e]xcept as authorized by this subchapter, it shall be unlawful for any person knowingly or intelligently ... to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance." Id. § 841(a)(1). Practitioners may issue prescriptions for controlled substances so long as the prescriptions are issued " for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice," 21 C.F.R. § 1306.04(a), and the indictment charged that all three defendants acted without a legitimate medical purpose and outside the usual course of professional practice. Count 1 of the indictment charged Green, Mack, and Joseph with conspiring to dispense and distribute Schedule II, III, and IV controlled substances without a legitimate medical purpose and outside the usual course of professional practice, 21 U.S.C. § 846. Counts 2 through 86 charged some or all of the defendants with substantive violations of the Act, id. § 841(a)(1). Counts 87 and 88 charged Green and Joseph respectively with maintaining a place of business for the purpose of unlawfully distributing a controlled substance,

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id. § 856(a)(1). And count 89 provided the defendants notice of criminal forfeiture, id. § 853. All three defendants proceeded to a jury trial.

The prosecution presented evidence at trial that Green's medical practice and his clinic were unusual in many respects. Green saw as many as 100 patients each day. He required that his patients pay in cash or by credit card before they met with him, and he did not accept private insurance. Inside the clinic, patients were sometimes rude and hysterical. Some patients could be heard retching in the bathroom, while other patients offered the receptionists bribes to see the doctor as soon as possible. Outside the clinic, patients sometimes camped overnight, sleeping in cars and urinating in public.

Many of Green's former patients were addicted to prescription drugs or sold their prescription drugs to addicts. These patients went to Green's clinic because they knew he would give them the prescription drugs they wanted. One former patient testified that it was " common knowledge ... that you could go to [Green] and basically write a grocery list [of] what you needed, and, you know, he would fill it." Another former patient addicted to prescription drugs testified that her " honest opinion was it was a dope house," and she testified that " people were getting sick in the bathroom, you know. There was drug deals going on in the parking lot."

Green and Dorothy Mack, who worked as a physician's assistant at Green's clinic from 2000 to 2003, knew that many of their patients were drug abusers. Some patients had on their arms " track marks," which evidence drug abuse and make it difficult for nurses to find a vein to draw blood. Green and Mack often assisted the nurses at the clinic to draw blood from patients with track marks. Friends and family of Green's patients sometimes called Green's clinic to report that Green's patients were misusing their drugs and these complaints were communicated to Green and sometimes to Mack.

Sergeant Manny Quinones, a police officer who investigated Green's clinic, testified that police determined, during the course of their investigation, that Green's patients included about 300 individuals who had violated drug laws in the past. Quinones testified that officers identified these drug offenders based on months of visual surveillance of the clinic, investigation of the license plate numbers of Green's patients, traffic stops of vehicles leaving the clinic, and sixty-four trash pulls conducted at the clinic. Green objected to this testimony on the grounds that it was unduly prejudicial and that the government did not lay an adequate foundation for the testimony, but the district court overruled the objection and admitted the testimony.

The prosecution also presented expert testimony that Green, Mack, and Joseph dispensed or distributed the prescription drugs without a legitimate medical purpose and outside the usual course of professional practice. Dr. Barry Straus, an expert in pain management and the prescription of controlled substances who was a practicing physician in Georgia, testified, based on his review of the medical records maintained by Green and Mack, that their medical treatment was " below minimum standards on recordkeeping, on treatment, on diagnosis." Dr. Straus testified that there was no legitimate medical reason to prescribe many of the combinations of drugs that Green and Mack prescribed for their patients. Dr. Straus also testified that, based on his review of the medical records, Green and Mack did not conduct a thorough medical examination of their patients. Dr. Straus testified that, if Green had conducted a thorough evaluation of each new

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patient, he would not have been able to treat the large number of patients he treated each day. Dr....

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