U.S. v. Dicter

• Decision Date: 23 December 1999
• Docket Number: No. 96-9448,96-9448
• Citation: 198 F.3d 1284
• Parties: (11th Cir. 1999) UNITED STATES of America, Plaintiff-Appellee, v. Richard M. DICTER, M.D., Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1284

198 F.3d 1284 (11th Cir. 1999)

UNITED STATES of America, Plaintiff-Appellee, v. Richard M. DICTER, M.D., Defendant-Appellant.

No. 96-9448.

United States Court of Appeals Eleventh Circuit.

Dec. 23, 1999.

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Appeal from the United States District Court for the Northern District of Georgia.

(No. 1:95-CR-275-1-JTC), Jack T. Camp, Judge.

Before EDMONDSON and BIRCH, Circuit Judges, and OWENS^*, Senior District Judge.

EDMONDSON, Circuit Judge:

Defendant, Richard M. Dicter, M.D., appeals his convictions and sentence for conspiring to distribute unlawfully controlled substances and unlawfully distributing controlled substances, in violation of 21 U.S.C. 841. Defendant also appeals the forfeiture of his state medical license under 21 U.S.C. 853. We affirm.

BACKGROUND

Defendant, an Atlanta physician, began selling prescriptions to Ronnie Gullett ("Gullett") in February 1992. At that time, Defendant visited Gullett's car wash, where Gullett told Defendant that he suffered from chronic back pain. Gullett also told Defendant that he previously had taken Percodan for the pain. Defendant offered to "help" Gullett with his pain: Gullett paid Defendant $100, and Defendant wrote a Percodan prescription for Gullett.

Thereafter, Defendant regularly prescribed various controlled substances for Gullett. Defendant prescribed Percodan, Percocet, Fiorinal, Vicodin ES, and Darvocet-N 100 for Gullett.¹ Defendant issued prescriptions for Gullett on 230 occasions. Some of these prescriptions were written in Gullett's name; others purported to prescribe controlled substances for Gullett's friends and relatives. Regardless of the names on the prescriptions, however, the controlled substances went to Gullett. On several occasions, Defendant phoned-in prescriptions to a pharmacist, later following up with a written prescription. Gullett generally paid between $100 and $500 for each prescription; on multiple occasions, Gullett paid $500 for a prescription.

Defendant eventually attracted the attention of investigators from the Georgia Secretary of State's Office. In 1993 and early 1994, the investigators subpoenaed from Defendant the medical records of ten persons, friends and relatives of Gullett and Gullett himself, to whom Defendant purportedly had written prescriptions. Defendant enlisted Gullett's assistance in obtaining information about the ten "patients" to create medical charts for those persons in response to the subpoenas. Defendant eventually responded to the subpoenas by submitting fabricated and fraudulent medical records to investigators.²

Defendant was indicted for one count of conspiring to distribute unlawfully controlled substances and two hundred-thirty counts of unlawfully distributing controlled substances, in violation of 21 U.S.C. 841(a)(1). At trial, an expert Government witness testified that Defendant's prescriptions for Gullett were not written in the course of legitimate medical treatment. A jury convicted Defendant on all counts. The jury then found that Defendant's state medical license was forfeited to the Government under 21 U.S.C. 853(a)(2). The district court accordingly ordered Defendant's medical license forfeited and imposed sentence upon Defendant: 42 months' imprisonment; a $1500 fine; and an $11,550 special assessment.³ Defendant appeals his convictions, his sentence, and the forfeiture of his medical license.

DISCUSSION

Defendant contends, first, that his conviction must be reversed because the district court violated Defendant's confrontation rights by improperly limiting his cross-examination of the Government's witnesses.⁴ Defendant contends, second, that his sentence must be vacated because the district court improperly delegated scheduling of his fine and special assessment payment to the Bureau of Prisons.⁵ These contentions lack merit; we reject them without extended discussion and affirm Defendant's convictions and sentence.

Defendant also challenges the forfeiture of his state medical license. In particular, Defendant asserts that: (1) the district court improperly permitted an eleven-person jury to return the forfeiture verdict; (2) the district court erroneously instructed the jury that the elements of forfeiture must be proven by a preponderance of the evidence; (3) Defendant's medical license is not property subject to forfeiture under 21 U.S.C. 853(a)(2); (4) the forfeiture of Defendant's medical license required compliance with state administrative procedures governing the revocation of a license by the Georgia medical licensing board; (5) the district court's conduct of forfeiture proceedings, while the state licensing board was investigating the revocation of Defendant's medical license, violated the Younger abstention doctrine; (6) the forfeiture of Defendant's medical license violates the Tenth Amendment; and (7) the forfeiture of Defendant's medical license violates the Eighth Amendment. We reject Defendant's contentions and, accordingly, affirm the district court's order of forfeiture.

1. ELEVEN-PERSON JURY

Defendant notes that the district court dismissed one of the twelve jurors, so that the juror could attend a job-training session, during forfeiture deliberations. Defendant contends that the district court's decision to proceed with a forfeiture jury of eleven jurors was without "just cause" and violated Fed.R.Crim.P. 23(b). Defendant, however, raised this issue for the first time in his reply brief. Defendant, therefore, has waived this claim.⁶ McGinnis v. Ingram Equip. Co., Inc., 918 F.2d 1491, 1496 (11th Cir.1990).

2. BURDEN OF PROOF IN FORFEITURE PROCEEDINGS

Defendant contends that the district court erred by instructing the jury that the Government need only prove the elements of criminal forfeiture under 21 U.S.C. 853(a)(2) by a preponderance of evidence. Defendant asserts that the Government, instead, must prove the elements of the forfeiture beyond a reasonable doubt. We disagree; we conclude that the preponderance standard defines the Government's burden of proof in section 853(a)(2) forfeitures.

First, the preponderance standard is most consistent with the notion that section 853(a)(2) forfeiture is a matter of sentencing. The Supreme Court has said that "[f]orfeiture is an element of sentence imposed following conviction." Libretti v. United States, 516 U.S. 29, 116 S.Ct. 356, 363, 133 L.Ed.2d 271 (1995). The language of section 853(a) itself makes clear that its forfeiture provisions are elements of sentencing. See 21 U.S.C. 853(a) (providing that court shall order forfeiture "in addition to any other sentence imposed"). Operating to deprive a convicted defendant of "any of [his] property used, or intended to be used, in any manner or part, to commit, or to facilitate" the defendant's crime, section 853(a)(2) is purely for sentencing: "The forfeiture is not intended to rectify the unjust enrichment of the individual, but to punish the defendant...." United States v. DeFries, 129 F.3d 1293, 1315 (D.C.Cir.1997). The preponderance standard ordinarily governs sentencing matters. United States v. Barakat, 130 F.3d 1448, 1452 (11th Cir.1997).

In addition, in United States v. Elgersma, 971 F.2d 690, 697 (11th Cir.1992) (en banc), we decided that the preponderance standard applies in section 853(a)(1) forfeitures.⁷ The statutory language reveals no congressional intent to require a higher standard of proof for section 853(a)(2) forfeitures than for section 853(a)(1) forfeitures. See United States v. Bieri, 21 F.3d 819, 822 (8th Cir.1994). Furthermore, we see "no principled distinction between the two types of forfeitable property that would justify a higher burden of proof to forfeit property used to facilitate a drug crime than is required to forfeit property acquired with drug proceeds." See id.

We, therefore, conclude that the preponderance standard governs forfeitures under 853(a)(2).⁸

3. FORFEITABILITY OF DEFENDANT'S MEDICAL LICENSE UNDER 853(a)(2)

Defendant claims that his state medical license is not forfeitable under 21 U.S.C. 853(a)(2). In this regard, Defendant asserts that his license is not "property" within the meaning of section 853.⁹ We cannot agree.

Defendant's contention is belied by the plain language of section 853. Property subject to forfeiture under section 853 includes "tangible and intangible personal property, including rights, privileges, interests, claims, and securities." 21 U.S.C. 853(b)(2) (emphasis added). A Georgia medical license confers "the right to practice medicine in [the] state" upon the licensee. O.C.G.A. 43-34-27(a)(1). Defendant's medical license, therefore, constitutes "property" for the purposes of section 853.

Our conclusion that Defendant's medical license constitutes "property" under section 853 is confirmed by Georgia law. See United States v. Shotts, 145 F.3d 1289, 1294-95 (11th Cir.1998) (looking to state law to determine whether state-issued license is "property" under mail fraud statute). Under Georgia law, a state-issued license "to engage in a profession, trade, or occupation" is a property right. See Leakey v. Georgia Real Estate Comm., 80 Ga.App. 272, 55 S.E.2d 818, 819 (1949). The Georgia Supreme Court has noted: "The right to practice medicine is ... a valuable property right." Yeargin v. Hamilton Memorial Hosp., 225 Ga. 661, 171 S.E.2d 136, 139 (1969).

4. GEORGIA PROCEDURES FOR REVOCATION OF A MEDICAL LICENSE

Georgia law mandates certain procedures for the revocation of a medical license by the state medical licensing board. See O.C.G.A. 43-34-38. Defendant contends that the district court was required to abide by these state law procedures in forfeiting Defendant's medical license because the forfeiture, in effect, operates as a revocation of Defendant's license. This contention is without merit. Under 21 U.S.C. 853, Defendant's medical license is forfeitable to the Government "irrespective of any provision of State...