797 F.3d 377 (6th Cir. 2015), 12-3212, United States v. Volkman

Docket Nº:12-3212
Citation:797 F.3d 377
Opinion Judge:BERNICE BOUIE DONALD, Circuit Judge.
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. PAUL H. VOLKMAN, Defendant-Appellant
Attorney:Edwin A. Perry, FEDERAL PUBLIC DEFENDER'S OFFICE, Memphis, Tennessee, for Appellant. Kimberly R. Robinson, UNITED STATES ATTORNEY'S OFFICE, Columbus, Ohio, for Appellee. Paul H. Volkman, Terre Haute, Indiana, Pro se.
Judge Panel:Before: McKEAGUE and DONALD, Circuit Judges; LAWSON, District Judge.[*]
Case Date:August 14, 2015
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
SUMMARY

Volkman, a University of Chicago M.D. and Ph.D. (pharmacology), board-certified in emergency medicine, was in financial distress after lawsuits. Hired by Tri-State, a cash-only clinic, he was paid $5,000 to $5,500 per week. Soon, pharmacies refused to fill his prescriptions, citing improper dosing. Volkman opened a dispensary in the clinic. The Ohio Board of Pharmacy issued a license, although a... (see full summary)

 
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797 F.3d 377 (6th Cir. 2015)

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

PAUL H. VOLKMAN, Defendant-Appellant

No. 12-3212

United States Court of Appeals, Sixth Circuit

August 14, 2015

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Appeal from the United States District Court for the Southern District of Ohio at Cincinnati. No. 1:07-cr-60-3--Sandra S. Beckwith, District Judge.

ON BRIEF:

Edwin A. Perry, FEDERAL PUBLIC DEFENDER'S OFFICE, Memphis, Tennessee, for Appellant.

Kimberly R. Robinson, UNITED STATES ATTORNEY'S OFFICE, Columbus, Ohio, for Appellee.

Paul H. Volkman, Terre Haute, Indiana, Pro se.

Before: McKEAGUE and DONALD, Circuit Judges; LAWSON, District Judge.[*]

OPINION

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BERNICE BOUIE DONALD, Circuit Judge.

When a doctor first enters the practice of medicine, he or she swears to abide by a prime directive of the profession: " First, do no harm." Paul Volkman breached this sacrosanct tenet when he prescribed narcotics to addicts and individuals with physical, mental, and psychological frailties. A federal jury looked at Volkman's actions and found him guilty of breaking several laws, chief among them the law prohibiting the unlawful distribution of controlled substances. After receiving the jury's verdict, the district court sentenced Volkman to four consecutive terms of life imprisonment, to be served concurrently with a number of less-lengthy terms.

Volkman appealed his conviction and sentence and we affirmed the district court by published opinion. See United States v. Volkman, 736 F.3d 1013 (6th Cir. 2013). The Supreme Court then granted Volkman a writ of certiorari and vacated our judgment. See United States v. Volkman,

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135 S.Ct. 13, 190 L.Ed.2d 286 (2014). On remand, we are asked to consider, in light of Burrage v. United States, 134 S.Ct. 881, 187 L.Ed.2d 715 (2014), whether sufficient evidence of but-for causation supported Volkman's convictions under the Controlled Substances Act. Because we find the evidence of but-for causation sufficient and because Volkman's other allegations of error continue to lack merit, we AFFIRM the district court and resubmit this opinion, amended at Section IV.C, to address Burrage 's but-for standard of causation.

I.

Paul Volkman is a former doctor who cast himself as a " pain management physician." Educated at the University of Chicago, Volkman holds an M.D. and Ph.D. in pharmacology from that institution. See Volkman v. United States Drug Enforcement Admin., 567 F.3d 215, 217 (6th Cir. 2009). Before the events leading up to his conviction, he was board-certified in emergency medicine and was a " diplomat" of the American Academy of Pain Management.

Despite his professional pedigree, Volkman fell into hard times in 2003. He had been sued on several occasions, settling some cases and losing others. Id. By the time his legal woes were over, he had no malpractice insurance and no job.

As part of his effort to rectify the latter, Volkman called Denise Huffman at the Tri-State Health Care clinic, asking about job opportunities. Eventually, Denise1 hired him to provide the clinic's medical services. They agreed that Volkman's salary would be $5,000 per week--eventually, the amount was upped to $5,500 per week.

Tri-State operated as a cash-only clinic. Pain medication was its bread and butter. At its peak, Tri-State and its staff saw an average of eighteen to twenty patients a day.

Volkman worked without incident during his first few months at the clinic. But approximately six months into the job, his practice encountered a major hiccup--local pharmacies refused to fill the clinic's prescriptions, citing concerns of improper dosing. Volkman's solution? Open a dispensary in the clinic. Volkman asked Denise's daughter, Alice Huffman Ball, to research the process for obtaining a license to operate a dispensary. Denise objected and raised concerns, but Volkman assured her that " he was a doctor[,] so he could dispense his own medication and he could take care of everything."

Volkman submitted to the Ohio Board of Pharmacy an application for a license to distribute controlled substances. Board representatives conducted an inspection of the clinic grounds, during the course of which they found a Glock in the safe where the drugs were stored. Despite this discovery, the Board issued a license after its initial inspection.

Agents from the Board conducted a follow-up inspection in December 2003. This time, they saw several problems with the new dispensary's practices. For instance, the dispensary logs were sloppily maintained; Volkman provided little oversight over recordkeeping processes. No licensed physician or pharmacist oversaw the actual dispensing process. Patients returned unmarked and intermixed medication.

By February 2004, the clinic took adequate measures to ameliorate the Board's

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administrative concerns. But the clinic still had its problems. Volkman was in charge of the dispensary, but did a poor job of regulating access--the drug safe's security was porous, with unauthorized personnel regularly accessing the pharmaceutical stockpile contained inside. Despite these issues, the dispensary saw much activity--it purchased 135,900 dosage units of oxycodone between July and December 2003, 457,100 dosage units for the entirety of 2004, and 414,200 dosage units between January and September 2005.

It eventually became clear that Volkman's medical practice followed a questionable pattern. Drug addicts, drug peddlers, or individuals otherwise not complaining of pain would come to see him as his " patients." Very little was done in terms of taking medical histories or conducting physical examinations. Volkman would regularly prescribe a drug cocktail consisting of opiates (such as oxycodone and hydrocone) as well as sedatives (diazepam, alprazolam, and carisoprodol; more commonly referred to as Valium, Xanax, and Soma). He had a tendency of first resorting to narcotics, disregarding first lines of treatment for pain management such as non-steroidal anti-inflammatory drugs (NSAIDs).

A federal investigation of Tri-State led to a search of the clinic facility on June 7, 2005. Medical personnel accompanying the investigative team saw that the clinic was in utter disarray. Urine specimen cups, filled with urine, were scattered all over the floor. The clinic had no equipment to view X-rays and MRI results. Miscellaneous pills were strewn all throughout the clinic premises.

Three months after the investigation, Denise terminated Volkman's employment because she " could no longer get along with him" and because there was " no control." In her words, " Dr. Volkman did what Dr. Volkman wanted to do." Volkman decided to open his own shop in Ohio--first in Portsmouth, and later in Chillicothe.

Twelve of Volkman's patients died during his tenure at Tri-State and during the early months of his new practice. Kristi Ross, Steve Hieneman, Bryan Brigner, and Earnest Ratcliff were four of these patients.

A grand jury returned an indictment against Volkman, Denise, and Alice, charging them with one count of conspiring to unlawfully distribute a controlled substance in violation of 21 U.S.C. § 841(a)(1) (the Controlled Substances Act or " CSA" ), two counts of maintaining a drug-involved premises in violation of 21 U.S.C. § 856(a)(1), eight counts of unlawful distribution of a controlled substance leading to death in violation of 21 U.S.C. § § 841(a)(1) and 841(b)(1)(C), and four counts of possession of a firearm in furtherance of a drug-trafficking crime in violation of 18 U.S.C. § § 924(c)(1) and (2). Volkman was charged separately with five additional counts of unlawful distribution of a controlled substance leading to death, as well as two additional counts of maintaining a drug-involved premises. His co-defendants, Denise and Alice, entered into plea agreements with the Government and testified against their former colleague.

After a thirty-five-day trial, a jury convicted Volkman on the lone conspiracy count, seven counts of unlawful distribution that did not lead to death, four counts of unlawful distribution leading to death, four counts of maintaining a drug-involved premises, and one count of possessing a firearm in furtherance of a drug-trafficking offense. The jury acquitted him on one count of unlawful distribution, as well as one count of possessing a firearm in furtherance of a drug-trafficking offense.

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The district court sentenced Volkman to four consecutive terms of life imprisonment for the counts of unlawful distribution leading to death, to be served concurrently with a sentence of 240 months for the counts of conspiracy and unlawful distribution not leading to death, 120 months for the drug-related premises counts, and 60 months for the firearm count, followed by three years of supervised release. Volkman timely appealed.

II.

Volkman divides his argument into four parts. He first argues that the district court erred by denying a proposed jury instruction derived from the Supreme Court's decision in Gonzales v. Oregon, 546 U.S. 243, 126 S.Ct. 904, 163 L.Ed.2d 748 (2006). Next, he contends that the Government's expert witnesses improperly provided legal conclusions as to whether Volkman's actions had a " legitimate medical purpose." Third, he claims that there was insufficient evidence to support the jury's guilty verdict on several charges. Finally, he challenges the reasonableness of his sentence on numerous grounds.

First, we turn to Volkman's jury-instruction argument. We review a denial of a proposed jury...

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