U.S. v. Mcelwee

• Decision Date: 12 July 2011
• Docket Number: 10–30101.,Nos. 10–30099,s. 10–30099
• Citation: 646 F.3d 328
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Tandy W. McELWEE, Jr.; Ava Cates McElwee, Defendants–Appellants.United States of America, Plaintiff–Appellee,v.Wendy Kathleen Benson Chriss, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

646 F.3d 328

UNITED STATES of America, Plaintiff–Appellee,

v.Tandy W. McELWEE, Jr.; Ava Cates McElwee, Defendants–Appellants.United States of America, Plaintiff–Appellee,

v.Wendy Kathleen Benson Chriss, Defendant–Appellant.

Nos. 10–30099

10–30101.

United States Court of Appeals, Fifth Circuit.

July 12, 2011.

Josette Louise Cassiere (argued), Alexander Coker Van Hook, Asst. U.S. Attys., Shreveport, LA, for Plaintiff–Appellee.Ansel Martin Stroud, III, Barham, Warner, Stroud & McKay, Michael Allyn Stroud (argued), Wiener, Weiss & Madison, A.P.C., Shreveport, LA, Marilyn Michele Fournet (argued), Law Office of M. Michele Fournet, Baton Rouge, LA, for Defendants–Appellants Tandy W. McElwee, Jr. and Ava Cates McElwee.Douglas Lee Harville (argued), (Court–Appointed), Harville Law Firm, L.L.C., Shreveport, LA, for Defendant–Appellant Wendy Kathleen Benson Chriss.Appeals from the United States District Court for the Western District of Louisiana.Before JOLLY and HAYNES, Circuit Judges, and VANCE, District Judge.^*E. GRADY JOLLY, Circuit Judge:

Before the court are three former employees of a private medical practice who stand convicted for engaging in a conspiracy to fraudulently obtain large amounts of hydrocodone, a controlled dangerous substance. The conspiracy involved submission of fabricated prescriptions to local pharmacies and falsification of patient medical records to conceal the fraudulence of the prescriptions. Appellants were found guilty of various charges, including conspiracy to obtain a controlled substance by fraud, and were sentenced to respective terms of imprisonment. All three Appellants challenge their sentences, and one Appellant contests the grounds for her conviction as well. For the reasons that follow, we AFFIRM on all issues.

I.

Appellant Tandy McElwee (“Dr. McElwee”) was an OB/GYN physician who maintained a practice in Bossier City, Louisiana. There he supervised 13 employees including his wife, Appellant Ava McElwee (“Mrs. McElwee”), a nurse practitioner, and Appellant Wendy Chriss (“Chriss”), a registered medical assistant. Dr. McElwee was authorized by the U.S. Drug Enforcement Administration (“DEA”) to prescribe lawful controlled substances, but he did not have a license to dispense controlled substances from the State of Louisiana.

Over a period of years, employees of the medical practice employed a variety of fraudulent means to obtain hydrocodone medications including Lorcet, Lortab, Histussin HC, and Histinex HC, all of which are schedule III controlled dangerous substances. To effectuate this conspiracy, Dr. McElwee made available to his employees pre-signed prescription pads, which were used to request refills of these hydrocodone-containing drugs from various pharmacies. Trial testimony suggested that the atmosphere in Dr. McElwee's office was one that accepted and accommodated the daily use of hydrocodone.

The coconspirators were able to obtain large amounts of hydrocodone medication by submitting pre-signed “prescriptions” in the names of fictitious persons, other family members, and in one case, even a family dog. For example, Chriss ordered hydrocodone using names like Kathleen Benson (her middle and maiden name), Eddie Chriss (her husband), Ayden Chriss (her child), Kristina Randall (her sister), and Rochelle Petouski (an alias for her sister). Dr. McElwee secured hydrocodone for himself and others by having his medical assistant, Rebecca Sandifer, go to the pharmacy to pick up prescriptions in the names of Sandifer's children and her ex-husband. He also ordered prescriptions using the name of his dog “Brandi” and his daughter-in-law, Conchita McElwee. When questioned by a pharmacist, Dr. McElwee represented that “Brandi McElwee” was a patient under his care.

Dr. McElwee authorized Chriss to order hydrocodone via the Internet from Moore Medical, LLC, and he testified that he kept a large 500–count bottle in his office for personal use and gave another 500–count bottle to Chriss for use by office personnel or their family members. Although Mrs. McElwee's level of involvement in these schemes was disputed, many prescriptions—including for Lortab and Histussin HC—were filled out in her name, and she often retrieved the medications from the pharmacy. Another employee testified that she delivered prescriptions to Mrs. McElwee, and the jury apparently credited the trial testimony suggesting that Mrs. McElwee knew of and participated in the conspiracy.

Dr. McElwee's staff frequently submitted prescriptions to QVL Pharmacy (which was originally named “Safescript”). In June 2007, the Louisiana State Board of Medical Examiners (“LSBME”) issued subpoenas to QVL and to Dr. McElwee's office for approximately 22 patient records, including requests for the patient records of Dr. McElwee's staff and for the family members and fictitious “patients” under whose names the prescriptions had been filled. An employee of QVL notified Chriss about the LSBME subpoenas and sent Chriss a fax containing the details of prescriptions QVL had filled for Dr. McElwee's office. Based on these records from the pharmacy, Chriss and other employees altered and falsified patient records to account for the prescriptions filled by QVL. Certain patient charts were fabricated wholesale, including those of “Rochelle Petouski” and “Missy Davis.” Furthermore, the record indicates that Mrs. McElwee participated in the falsification of patient records, specifically with respect to Conchita “Brandi” McElwee (the family dog's name apparently having been added to the chart for Dr. McElwee's daughter-in-law).¹ These falsified records were submitted in response to the LSBME subpoena. In addition, Chriss created a dispensation log book with false names and prescription dates, at Dr. McElwee's request, in order to account for the hydrocodone ordered through Moore Medical. Another employee testified that Mrs. McElwee said Chriss was “going to save our ass with that book.”

Appellants were indicted along with five other codefendants in an 88–count indictment that included charges for conspiracy to obtain a controlled substance by fraud and conspiracy to possess with intent to distribute a controlled substance. Under a plea agreement, Chriss pleaded guilty to one count of conspiracy to possess with intent to distribute a controlled substance, in violation of 21 U.S.C. §§ 846 and 841(a)(1). A jury found Dr. McElwee guilty of one count of conspiracy to obtain a controlled substance by fraud, in violation of 21 U.S.C. §§ 846 and 843(a)(3); nineteen counts of obtaining a controlled substance by fraud, in violation of 21 U.S.C. § 843(a)(3) and 18 U.S.C. § 2; one count of conspiracy to possess with intent to distribute; nine counts of possession with intent to distribute a controlled dangerous substance, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; one count of providing false information in records required to be kept under Title 21, in violation of 21 U.S.C. § 843(a)(4)(A) and 18 U.S.C. § 2; and one count of health care fraud, in violation of 18 U.S.C. §§ 1347 and 2. The same jury found Mrs. McElwee guilty of one count of conspiracy to obtain a controlled substance by fraud and one count of obtaining or acquiring a controlled substance by fraud.

At sentencing, the district court adopted the factual findings of the Presentence Investigation Report (“PSR”) with respect to Dr. McElwee and assessed an offense level of 20 and criminal history category of I. The court granted the Government's motion for an upward variance from the Sentencing Guidelines range of 33 to 41 months, noting that points had not been assessed for inclusion of false information in a record required to be kept, and that the 32,000 easily identifiable units of hydrocodone were “probably the tip of the iceberg.” Considering his role and the nature of the offense, the court sentenced Dr. McElwee to a total of 60 months in prison and a $550,000 fine, up to $400,000 of which is to be paid jointly and severally with Mrs. McElwee.

Mrs. McElwee was assessed an offense level of 8 with a criminal history category of I, which yielded a Guidelines range of zero to six months. The court ultimately imposed a non–Guidelines sentence of 36 months of imprisonment and a $400,000 fine to be paid jointly and severally with Dr. McElwee.

As to Chriss, the district court adopted the factual findings of the PSR and assessed an offense level of 16 with a criminal history category of I, imposing a 21–month sentence of imprisonment followed by three years of supervised release, which was at the bottom of the Guidelines range.

Dr. McElwee and Chriss timely appeal their sentences, while Mrs. McElwee appeals both her conviction and her sentence. We have jurisdiction under 28 U.S.C. § 1291.

II.

At the core of Appellants' complaints on appeal are their challenges to the substantive reasonableness of their sentences. We review the reasonableness of a defendant's sentence for abuse of discretion. See Gall v. United States, 552 U.S. 38, 46, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). We “first ensure that the district court committed no significant procedural error” and then analyze substantive reasonableness by considering “the totality of the circumstances, granting deference to the district court's determination of the appropriate sentence based on the § 3553(a) factors, and we may not reverse the district court's ruling just because we would have determined that an alternative sentence was appropriate.” Id. at 51, 128 S.Ct. 586 (internal quotation marks, citations, and modifications omitted). We now turn to address the issues raised by the Appellants.

A.

We first consider the claims of Dr. McElwee, who challenges the reasonableness of his prison sentence and the fine imposed by the district court.

1.

Dr. McElwee first contests the length of the 60–month sentence imposed by the district court. We note, at the outset, that the district court did not commit any...