U.S. v. Chin, 85-4835

• Citation: 795 F.2d 496
• Decision Date: 29 July 1986
• Docket Number: No. 85-4835,85-4835
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Frank Tuin-Wong CHIN, Jr., M.D., Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 496

795 F.2d 496

UNITED STATES of America, Plaintiff-Appellee, v. Frank Tuin-Wong CHIN, Jr., M.D., Defendant-Appellant.

No. 85-4835.

United States Court of Appeals Fifth Circuit.

July 29, 1986.

Robert P. McLeod, McLeod, Swearingen, Verlander & Dollar, Monroe, La., for defendant-appellant.

Dosite H. Perkins, Asst. U.S. Atty., Joseph S. Cage, Jr., U.S. Atty., Shreveport, La., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Louisiana.

Before GARWOOD and HILL, Circuit Judges, and WILL, ^* District Judge.

GARWOOD, Circuit Judge:

Appellant Frank Tuin-Wong Chin, Jr., M.D. appeals his conviction in a jury trial for eleven counts of illegally dispensing controlled substances without a legitimate medical purpose in violation of 21 U.S.C. Sec. 841(a)(1). His sole contention on appeal is that the evidence is insufficient to support his conviction. We affirm.

Facts and Proceedings Below

In 1982, Dr. Chin practiced family medicine in Monroe, Louisiana. At some point early that year, the Louisiana State Police targeted him for investigation to explore the methods he used to dispense various controlled substances, primarily diet-type pills, anti-anxiety, and sleeping pills. The narcotics division of the state police, specifically the Diversion Investigation Unit (DIU), handled the investigation of Dr. Chin.

After the investigation started, several DIU undercover agents visited Dr. Chin individually or as a "husband and wife" pair on diverse occasions from February to December 1982. In all, five of the seven members of the DIU team called upon him. Each DIU agent's relationship with Dr. Chin was basically the same. First, the DIU undercover agent, posing as one seeking such substance for his own (or spouse's) use, would go to Dr. Chin's office, where the agent's blood pressure and weight would be measured by an attendant. The agent then talked to Dr. Chin. These conversations were often tape recorded by the agents, although whether the visit would be taped was within the agent's discretion. ¹ The trooper would attempt to receive prescriptions without giving Dr. Chin a legitimate medical reason, although medical reasons were discussed in some instances. After a relationship was established with Dr. Chin, the agent would return seeking refills for the prior prescription or a new prescription for other controlled substances. Another method used by the DIU was for a female and a male agent to team as husband and wife, and then seek drugs for themselves or for their supposed spouse.

At trial, the undercover agents testified to various methods they used to obtain drugs from Dr. Chin. One tactic was for the agents to ask for sleeping pills solely to help them counteract the effects of diet pills previously prescribed to them by Dr. Chin or another doctor. In the case of one agent, sleeping pills were sought to "come down" after "partying all night" while on diet pills. Often agents made clear to Dr. Chin that others were taking their medication. The agents would attempt to obtain diet pills not to lose weight but to stay alert. Although medical reasons for a drug were occasionally discussed, the agents made an effort never to be the first to mention a valid medical reason for the medication they sought. If Dr. Chin offered some sort of medical purpose, the agents would agree or disagree as they felt necessary under the circumstances. The agents also would attempt to procure controlled substances for a spouse not then present, or let Dr. Chin know that a spouse was taking or abusing part of the agent's current prescription.

At the conclusion of this investigation, Dr. Chin was indicted on sixteen counts of illegally dispensing Schedule IV controlled substances. ² A jury trial followed. Dr Chin's motion for acquittal at the close of the government's evidence was taken under advisement. The defense rested without presenting any evidence. The jury found Dr. Chin not guilty on four counts and guilty on the remaining twelve counts. After the verdict, the district court granted Dr. Chin's motion for acquittal on one of the twelve counts because Dr. Chin had not signed the prescription, but denied the motion on the other eleven counts. Dr. Chin's motion for a new trial was also denied. He was subsequently sentenced to concurrent three-year sentences on each of ten of the counts and was fined a total of $100,000--$10,000 on each of these ten counts. Imposition of sentence was suspended with a five-year probation term on the one remaining count, the probation to commence on completion of the sentences on the ten other counts. This appeal followed.

Discussion

The sole issue on appeal is whether the jury had sufficient evidence before it to convict Dr. Chin of dispensing controlled substances without a legitimate medical purpose in violation of 21 U.S.C. Sec. 841(a)(1). ³ In a challenge to the sufficiency of the evidence, "[t]he verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it." Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942). This Court has stated that

"[i]t is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt, provided a reasonable trier of fact could find that the evidence establishes guilt beyond a reasonable doubt. A jury is free to choose among reasonable constructions of the evidence." United States v. Bell, 678 F.2d 547, 549 (5th Cir.1982) (en banc) (footnote omitted), aff'd on other grounds, 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983).

Further, evidence relating primarily to the counts on which Dr. Chin was acquitted is not by reason of such acquittal deprived of whatever support it might otherwise properly afford for the verdict of guilty on any other count or counts. Our review of the sufficiency of the evidence to sustain the verdict on the counts on which Dr. Chin was convicted is based on the whole record "independent of the jury's determination that evidence on another count was insufficient." United States v. Powell, 469 U.S. 57, 105 S.Ct. 471, 478, 85 L.Ed.2d 461 (1984). See United States v. Lubrano, 529 F.2d 633, 636 n. 1 (2d Cir.1975). See also United States v. Merida, 765 F.2d 1205, 1220 (5th Cir.1985); United States v. Price, 750 F.2d 363 (5th Cir.1985).

To assess the sufficiency of the evidence, we must, of course, refer to the substantive elements of the offense charged, here dispensing Schedule IV controlled substances in contravention of 11 U.S.C. Sec. 841(a)(1). To sustain a conviction as to any count under this statute, the evidence must allow a reasonable fact finder to determine beyond a reasonable doubt as to that count: " '(1) that [Dr. Chin] distributed or dispensed a controlled substance, (2) that he acted knowingly and intentionally, and (3) that he did so other than for a legitimate medical purpose and in the usual course of his professional practice.' " United States v. Norris, 780 F.2d 1207, 1209 (5th Cir.1986), (quoting United States v. Rosen, 582 F.2d 1032, 1033 (5th Cir.1978)). Only the sufficiency of the evidence on the third element is disputed by Dr. Chin on this appeal.

Dr. Chin claims that the evidence at trial showed that he had a legitimate medical purpose in dispensing the Schedule IV drugs for which he was convicted. Dr. Chin argues that the agents presented symptoms to him for which the drugs could appropriately be prescribed, and that often these agents were overweight, although not strikingly so. Evidence at trial established that the DIU agents did not always obtain a prescription. Moreover, the evidence also showed that Dr. Chin would frequently warn the agents about the proper use of the medication, such as not to take diet pills to stay awake or not to use sleeping pills with alcohol, and that he often warned the agents about permitting an absent spouse to take the present spouse's medication. Indeed, Dr. Chin once demanded that an absent spouse come to see him before he would prescribe medication. As Dr. Chin claims, documents introduced at trial further established that he kept records of the drug prescriptions and charged only a twenty-dollar fee per visit. The evidence also showed that Dr. Chin prescribed medication in relatively small amounts.

Dr. Chin claims that the above does not reflect the usual "fat" doctor case where a doctor sets up an obesity practice and prescribes an inordinate amount of diet pills in order to "treat" these overweight patients. See Rosen, 582 F.2d at 1032 (obesity practice sixty percent of total family practice; large amounts of controlled substances given to undercover agents). Here, Dr. Chin was convicted on only three counts involving diet pills--two Ionamin prescriptions and one packet of Tepanil Ten-Tabs, apparently a pharmaceutical sample, to one agent over a period of months. Nor, Dr. Chin argues, does the record as a whole indicate the high level of professional medical abuse by doctors reflected in previous section 841 convictions where physicians use their offices as, in essence, drug clinics. See Norris, 780 F.2d at 1208 (doctor properly convicted who got patients together in a group, gave lecture, asked patients what drugs they desired, and gave patients these drugs without either a physical examination or instructions as to the proper uses of the drugs); United States v. Jackson, 576 F.2d 46, 50 (5th Cir.1978) (doctor properly convicted who prescribed Methaqualone in large doses without proper warnings or proper physical examinations).

After reviewing the record in the light most favorable to the government, however, we find substantial evidence presented at trial for the jury to convict Dr. Chin. First, we note that only the most cursory physical examination was given to the undercover agents before Dr. Chin prescribed the controlled substances....