U.S. v. Leal, No. 94-1740

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Writing for the CourtBOGGS
Citation75 F.3d 219
Parties43 Fed. R. Evid. Serv. 893 UNITED STATES of America, Plaintiff-Appellee, v. Robert M. LEAL, Defendant-Appellant.
Decision Date04 January 1996
Docket NumberNo. 94-1740

Page 219

75 F.3d 219
43 Fed. R. Evid. Serv. 893
UNITED STATES of America, Plaintiff-Appellee,
v.
Robert M. LEAL, Defendant-Appellant.
No. 94-1740.
United States Court of Appeals,
Sixth Circuit.
Argued Oct. 19, 1995.
Decided Jan. 4, 1996. *
Rehearing and Suggestion for Rehearing
En Banc Denied Feb. 12, 1996.

Page 221

Kathleen Moro Nesi, Asst. U.S. Atty. (argued and briefed), Detroit, MI, for plaintiff-appellee.

James L. Feinberg (argued and briefed), Robert M. Morgan (briefed), Detroit, MI, for defendant-appellant.

On Appeal from the United States District Court for the Eastern District of Michigan.

Before: BROWN, BOGGS, and NORRIS, Circuit Judges.

BOGGS, Circuit Judge.

Robert Leal, a pharmacist convicted of 16 counts of violating 21 U.S.C. § 841(a)(1) for running a "pill mill," appeals from his conviction and sentencing on a host of grounds. We find all of Leal's arguments without merit and affirm Leal's conviction for the reasons given below.

I

Leal was charged with 87 counts of distribution of controlled substances. The indictment indicated that the offenses occurred between October 1989 and May 1992. Mr. Leal entered a plea of not guilty to all counts.

The charges stem from a joint DEA and FBI effort to investigate Parkview Pharmacy, which was owned by Leal. The investigation centered on the relationship between Mr. Leal and Dr. Veera Sripinyo, who ran a medical clinic in Warren, Michigan. Because of suspicions that Dr. Sripinyo was engaged in selling prescriptions for controlled substances, an undercover agent, posing as a patient, went to Dr. Sripinyo's office and obtained a prescription for amphetamines after Dr. Sripinyo administered a cursory examination, including taking the agent's blood pressure over several layers of clothing. The agent was given a business card for Mr. Leal's pharmacy. The DEA then inspected Leal's pharmacy and reviewed all the prescriptions for controlled substances Leal had filled, beginning in 1987. The inspection revealed that Dr. Sripinyo's prescriptions comprised more than 90% of all of Parkview Pharmacy's business. The DEA noted that, despite the small size of the pharmacy, it was at or near the top of the rankings for the sale of controlled substances in the Detroit metropolitan area.

Additional evidence about Mr. Leal's operations was obtained from a number of sources. Testimony of "patients" and customers further corroborated the illegal nature of the prescriptions. Leal often filled prescriptions for Tylenol 4 (Tylenol plus codeine) and Doriden, commonly known on the street as "fours and doors." When taken in combination, Tylenol 4 and Doriden produce a euphoric effect similar to heroin. There was evidence offered at trial tending to show that Dr. Sripinyo may have provided some legitimate medical services to his clientele, who were mostly drug addicts. Expert testimony established that many of the prescriptions Dr. Sripinyo had written and Leal had filled were outside the course of standard medical practice and for no legitimate medical purpose. Charts showing the amounts of controlled substances provided by Leal to Dr. Sripinyo's patients were entered into evidence, including charts of patients who did not testify at trial about their medical conditions.

Dr. Sripinyo was indicted in this matter as well, but fled the United States before trial. After Dr. Sripinyo fled the country, the prescriptions Leal filled for controlled substances dropped off dramatically. Evidence of Dr. Sripinyo's flight was introduced at Leal's trial.

One of Dr. Sripinyo's patients, Cheryl Britt, testified that her aunt, Annie McLinden, also a patient, had died. The district court was vigilant, however, in keeping out any insinuation by the government that Dr. Sripinyo was responsible for her death.

The government made an improper comment on Leal's demeanor at closing argument. The government prosecutor pointed out that Leal had commented suspiciously to his counsel after a witness had testified that he had joked with Leal about needing appetite suppressants prescribed by Dr. Sripinyo for the sole purpose of improving his sexual performance.

The court's instructions to the jury were based on regulations promulgated under the

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authority of 21 U.S.C. § 841, and the district court refused Leal's proposed jury instruction relating to the civil duties of pharmacists under Michigan law.

The jury convicted Leal on 16 counts, found him not guilty on 12 counts, and could not decide on the other 59 counts.

Leal was sentenced based on all of the controlled substance prescriptions he filled that were written by Dr. Sripinyo and by another doctor operating in a similar fashion named Dr. Marang, even though there was no direct evidence that each of these prescriptions was issued outside the scope of proper medical practice. When converted into marijuana equivalent, the amount of drugs Leal was held accountable for totalled 4,021.1064 kilograms.

On March 10, 1995, a panel of the Sixth Circuit affirmed the district court's grant of a bond pending appeal, because Leal did not represent a risk of flight and because the panel deemed his jury instruction argument to raise a substantial question of preemption law.

II

Leal raises seven issues on appeal: (1) does sufficient evidence support his conviction; (2) was there error in admitting Dr. Sripinyo's medical records when there was no individualized testimony about the medical condition of each of the underlying patients; (3) was there error in admitting evidence that Dr. Sripinyo fled the United States; (4) was Leal denied a fair trial by a prosecution comment at closing argument; (5) did the district court abuse its discretion in denying Leal's motion for a mistrial because the government had introduced evidence showing that a former patient of Dr. Sripinyo's had died; (6) did the district court err in refusing Leal's requested jury instruction about the civil duties of pharmacists under Michigan law; and (7) did the district court err in sentencing Leal on the basis of all prescriptions he filled for Drs. Sripinyo and Marang, even though there was evidence suggesting that not every one of these prescriptions was written outside the course of legitimate medical practice.

III. SUFFICIENCY OF THE EVIDENCE

When a defendant contests the sufficiency of the evidence supporting his criminal conviction, the court is to consider all of the evidence in the light most favorable to the prosecution, and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). "The government must be given the benefit of all inferences which can reasonably be drawn from the evidence ... even if the evidence is circumstantial." United States v. Adamo, 742 F.2d 927, 932 (6th Cir.1984), cert. denied sub nom. Freeman v. United States, 469 U.S. 1193, 105 S.Ct. 971, 83 L.Ed.2d 975 (1985).

There is more than enough evidence in the record from which a rational jury could have concluded that Leal was guilty beyond a reasonable doubt of violating 21 U.S.C. § 841. The government needed to show here that the prescriptions filled by Leal were not issued for a valid medical purpose, and that Leal knew the prescriptions were invalid. United States v. Hughes, 895 F.2d 1135, 1143 n. 11 (6th Cir.1990). The government could also have shown that Leal should have known that the prescriptions were invalid, but "deliberately closed [his] eyes to what would otherwise have been obvious." United States v. Seelig, 622 F.2d 207, 213 (6th Cir.), cert. denied, 449 U.S. 869, 101 S.Ct. 206, 66 L.Ed.2d 89 (1980). "Circumstantial evidence alone can sustain a guilty verdict and ... to do so, circumstantial evidence need not remove every reasonable hypothesis except that of guilt." United States v. Stone, 748 F.2d 361, 362 (6th Cir.1984), cert. denied, 498 U.S. 822, 111 S.Ct. 71, 112 L.Ed.2d 45 (emphasis in original).

There was enough circumstantial evidence to find that Dr. Sripinyo issued prescriptions that fell outside the scope of medical practice: (1) he gave perfunctory exams, for instance taking an undercover DEA agent's blood pressure readings over several layers of clothing; (2) he prescribed weight control pills for those who were not overweight; (3)

Page 223

he prescribed controlled substances to patients with non-serious symptoms; (4) he issued prescriptions for the commonly abused "upper" and "downer" combination "fours and doors," when there is no therapeutic basis for combining these drugs to treat any real medical problem; (5) he wrote prescriptions before he diagnosed patients; (6) he wrote prescriptions through the mail for a patient who was in Florida at the time; and (7) he fled the country when he learned of a federal investigation.

There was also enough circumstantial evidence to support a jury finding that Leal knew about Dr. Sripinyo's illegitimate practices: (1) Dr. Sripinyo told patients to fill their prescriptions at Leal's pharmacy 1; (2) Dr. Sripinyo monitored whether patients were going to Leal's pharmacy; (3) a blow-up version of Leal's business card with a map was prominently displayed in Dr. Sripinyo's office for patients to see; (4) After Dr. Sripinyo began to associate closely with Leal, Dr. Sripinyo's office rule telling patients to go to "your" pharmacy was eliminated and patients were given Leal's business card instead; (5) more than 90% of the prescriptions Leal filled for controlled substances came from Dr. Sripinyo; (6) Leal lied to investigators about the availability of refill information he stored on computer; (7) Leal's pharmacy was dispensing more controlled substances than even large chain pharmacies during the period of his association with Dr. Sripinyo; (8) after Dr. Sripinyo fled the country, the amount of controlled substances that Leal sold declined sharply; (9) Dr. Sripinyo's...

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19 practice notes
  • Oregon v. Ashcroft, No. 02-35587.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 26 May 2004
    ...does not, therefore, "occupy the field" of physician-assisted suicide in violation of section 903. See United States v. Leal, 75 F.3d 219, 227 (6th Cir.1996) (holding that "there is no such conflict" between 21 C.F.R. § 1306.04 and state Petitioners maintain — and the ma......
  • Oregon v. Ashcroft, No. CIV. 01-1647-JO.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Oregon)
    • 17 April 2002
    ...United States v. Hayes, 794 F.2d 1348 (9th Cir.1986), United States v. Boettjer, 569 F.2d 1078 (9th Cir.1978), and U.S. v. Leal, 75 F.3d 219 (6th Cir.1996), do not advance their position. All involved criminal proceedings against DEA registered physicians or pharmacists whose activities fel......
  • Smith v. State, No. S08A1496.
    • United States
    • Georgia Supreme Court
    • 3 November 2008
    ...State, 271 Ga. 783, 787, 523 S.E.2d 294 (1999). 8. See United States v. Mendoza, 522 F.3d 482, 491 (5th Cir.2008); United States v. Leal, 75 F.3d 219, 225-226 (6th Cir.1996); United States v. Gatto, 995 F.2d 449, 455 (3rd Cir.1993); United States v. Schuler, 813 F.2d 978, 981 (9th Cir. 1987......
  • U.S. v. Kincaide, Nos. 96-1771
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 21 May 1998
    ...did not voice these objections at trial, we review the admission of this evidence for plain error. See, e.g., United States v. Leal, 75 F.3d 219, 224 (6th The contested evidence of violent conduct consisted of testimony by co-conspirator Orlando Mathis that Kincaide directed him to particip......
  • Request a trial to view additional results
19 cases
  • Oregon v. Ashcroft, No. 02-35587.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 26 May 2004
    ...Directive does not, therefore, "occupy the field" of physician-assisted suicide in violation of section 903. See United States v. Leal, 75 F.3d 219, 227 (6th Cir.1996) (holding that "there is no such conflict" between 21 C.F.R. § 1306.04 and state Petitioners maintain — and the majority agr......
  • Oregon v. Ashcroft, No. CIV. 01-1647-JO.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Oregon)
    • 17 April 2002
    ...United States v. Hayes, 794 F.2d 1348 (9th Cir.1986), United States v. Boettjer, 569 F.2d 1078 (9th Cir.1978), and U.S. v. Leal, 75 F.3d 219 (6th Cir.1996), do not advance their position. All involved criminal proceedings against DEA registered physicians or pharmacists whose activities fel......
  • Smith v. State, No. S08A1496.
    • United States
    • Georgia Supreme Court
    • 3 November 2008
    ...State, 271 Ga. 783, 787, 523 S.E.2d 294 (1999). 8. See United States v. Mendoza, 522 F.3d 482, 491 (5th Cir.2008); United States v. Leal, 75 F.3d 219, 225-226 (6th Cir.1996); United States v. Gatto, 995 F.2d 449, 455 (3rd Cir.1993); United States v. Schuler, 813 F.2d 978, 981 (9th Cir. 1987......
  • U.S. v. Kincaide, Nos. 96-1771
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 21 May 1998
    ...did not voice these objections at trial, we review the admission of this evidence for plain error. See, e.g., United States v. Leal, 75 F.3d 219, 224 (6th The contested evidence of violent conduct consisted of testimony by co-conspirator Orlando Mathis that Kincaide directed him to particip......
  • Request a trial to view additional results

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