U.S. v. Merrill

• Decision Date: 17 January 2008
• Docket Number: No. 06-14076.,06-14076.
• Citation: 513 F.3d 1293
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Thomas G. MERRILL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

513 F.3d 1293

UNITED STATES of America, Plaintiff-Appellee, v. Thomas G. MERRILL, Defendant-Appellant.

No. 06-14076.

United States Court of Appeals, Eleventh Circuit.

January 17, 2008.

John P. Flannery, Campbell, Miller, Zimmerman, P.C., Leesburg, VA, for Merrill.

Nancy J. Hess, Pensacola, FL, E. Bryan Wilson, U.S. Atty., Tallahassee, FL, for U.S.

Appeal from the United States District Court for the Northern District of Florida.

Before EDMONDSON, Chief Judge, HULL, Circuit Judge, and FORRESTER,^* District Judge.

FORRESTER, District Judge:

I. BACKGROUND

From 1994 until 2004, Dr. Thomas Merrill ("Merrill"), an osteopath licensed to practice medicine in Florida and registered under the Controlled Substances Act, 21 U.S.C. §§ 801, et seq., operated a clinic in Apalachicola, Florida. On August 2, 2005, the Government filed a 100-count indictment against Merrill. The indictment charged Merrill with various counts of wire fraud (Counts 1-18), health care fraud¹ (Counts 19-24), and illegally prescribing narcotics outside the course of professional practice under the Controlled Substance Act (Counts 25-100). Nine of the counts in the indictment alleged that death resulted from either the health care fraud or the use of the narcotics prescribed outside the course of professional practice (Counts 20-24, 39, 65, 69, and 78). On January 30, 2006, Merrill was convicted of 98 of the 100 counts. He was sentenced on July 10, 2006, to serve various concurrent sentences of five, ten, and twenty years on ninety-two of those counts. He was also sentenced to life imprisonment on six of the counts to run concurrently with the other sentences. He appeals his convictions. We affirm Merrill's convictions.

At trial, the Government presented the expert testimony of Dr. Theodore Parran, a board-certified internal medicine physician with sub-specialty training in addiction medicine. Dr. Parran, who was qualified as an expert in the areas of pain management, addiction medicine, and prescribing controlled substances, testified based on his review of eighty patient files.

This testimony and the documentary evidence demonstrated that Merrill wrote multiple prescriptions for similar controlled substances for the same patient during the same visit; that he wrote prescriptions for patients on whom he performed no or very minimal physical examination; that he failed to obtain old or prior medical records on his patients; that he failed to log all prescriptions written for his patients in their charts; that he failed to run tests, including toxicology screens, recommend physical therapy, or order consultations with a specialist; that he wrote prescriptions for patients whose behavior and physical appearance should have raised suspicion that they were addicted to controlled substances; that he wrote prescriptions for his employees; that he wrote prescriptions for at least one patient who he had heard was selling the prescribed drugs; that he wrote prescriptions for at least two patients who had altered prescriptions; that he wrote prescriptions for at least one patient who had overdosed on controlled substances during his care; that the trend in his prescribing was to increase a patient's, dosage and number of pills with each prescription even on occasions where the files indicated that the patient had "no new complaints"; that he frequently refilled prescriptions early without any subsequent documentation in the charts; and that he ignored warnings of possible addiction from insurance companies, pharmacies, and even previous doctors.

Dr. Parran testified that these practices are irregular, dangerous, and are not the legitimate practice of medicine. Dr. Parran repeatedly stated that prescriptions written to particular patients appear to be outside the usual course of medical practice and for other than legitimate medical purpose (e.g., R 15-222 at 69, 78, 83, 88, 103, 110, 113, 123, 125, 132, 136, 139, 144, 151, 146, 156, 160, 163, 165, 168-69, and 172). At times during his testimony, Dr. Parran characterized Merrill's prescription-writing behavior as "unbelievable," as "an invitation to disaster," as "ill-advised," as "inappropriate," "inconceivable," "bizarre," "astonishing," and "incredible" (R 15-222 at 84, 103, 109, 118, 126, 156, 163, and 167). Merrill did not object to the admission of any of this testimony.

Merrill was charged with healthcare fraud and with either fraudulent acts or unlawfully dispensing controlled substances resulting in the death of Bridgette Persinger, Leslie Dyer, Deanna Hayes, Kenneth Noles, and Katherian Seay. In each case the medical examiner who performed the autopsy on each victim determined the cause of death to be drug overdose of a controlled substance which Merrill had recently prescribed (R 12-219 at 140, 208, 260, 279 and R 13-220 at 113).

Merrill contends that the district court erred in six ways. Merrill contends that there was insufficient evidence at trial to support conviction on the counts in the indictment charging him with providing controlled substances to patients which resulted in their deaths. Merrill also asserts that the trial court admitted an avalanche of prejudicial and irrelevant evidence in the form of prescriptions of Merrill's patients who were not the subject of any count in the indictment. He claims he was prejudiced by the trial court's decision to move the trial from Panama City to Pensacola, which he contends was an inconvenient forum. Next, Merrill avers that the trial court wrongly instructed the jury as to intent and impermissibly shifted the burden of proof to the Defendant. Merrill argues that Assistant United States Attorney Kunz committed prosecutorial misconduct in misrepresenting evidence to the court and the jury. Merrill claims that he was denied effective assistance of counsel. Finally, Merrill asserts that the trial court wrongly dismissed an African-American juror immediately after the jury had been charged. For all of these reasons, Merrill requests this court reverse his conviction and remand the matter for a new trial.

II. DISCUSSION

A. Sufficiency of the Evidence

In nine counts, Merrill was charged with committing acts that resulted in the deaths of five patients: Bridgette Persinger, Leslie Dyer, Deanna Hayes, Kenneth Noles, and Katherian Seay. Merrill claims the Government presented insufficient evidence at trial to prove his actions resulted in these deaths. Specifically, Merrill claims that each of the patients who died was using illicit drugs, alcohol, and other prescription drugs. Merrill further contends that there was no evidence at trial by which it could be determined that any one of the deceased patients did actually ingest the drugs prescribed by Merrill.

The determination of whether the record contains sufficient evidence to support a jury's verdict is a question of law which we review de novo. United States v. Byrd, 403 F.3d 1278, 1288 (11th Cir. 2005) (citing United States v. Harris, 20 F.3d 445, 452 (11th Cir.1994)). In this task, "we view the evidence in the light most favorable to the government," drawing "all reasonable inferences and credibility choices" in the Government's favor. Id. As Merrill states in his briefing, "[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 that a reasonable trier of fact could find that the evidence established guilt beyond a reasonable doubt." Harris, 20 F.3d at 452 (citation omitted). "A conviction must be, upheld unless the jury could not have found the defendant guilty under any reasonable construction of the evidence." Byrd, 403 F.3d at 1288 (quoting United, States v. Chastain, 198 F.3d 1338, 1351 (11th Cir.1999)).

With regard to Merrill's first contention that each of these patients who died had other substances, such as alcohol, illicit drugs, or prescription medicine, not prescribed by Merrill in their systems at the time they died, the Government put on the witness stand the medical examiner who performed the autopsy on each of these patients. In each case the medical examiner testified that drugs of the same type as prescribed by Merrill were the cause of death.

Insofar as Merrill is contending that the Government failed to show that his patients' deaths were caused by the drugs he prescribed as opposed to drugs prescribed by other doctors or obtained on the street, we find that there was sufficient evidence for a reasonable trier of fact to find guilt beyond a reasonable doubt. Within two-and-a-half weeks of their deaths, Merrill prescribed for each of these patients the exact type of drug the medical examiner found to have caused their deaths. In three cases, there were even pill bottles or prescription medicine specifically prescribed by Merrill in the immediate vicinity of the deceased. While the Government did not exclude every reasonable hypothesis of innocence, by showing that Merrill was the only source of the patients' medications, a jury under a reasonable construction of the evidence, could have found that Merrill's prescriptions were the actions which led to these patients' deaths.

B. Evidence of Other Prescriptions

Merrill contends that the district court abused its discretion when it allowed the Government to introduce evidence of more than 33,000 prescriptions for controlled substances that Merrill wrote between January 2001 and May 2004 and a chart summarizing these prescriptions because such evidence was irrelevant and prejudicial.

During the course of its investigation, the Government subpoenaed pharmacy records of all the prescriptions written between January 2001 and May 2004 which contained Merrill's DEA registration number. A pharmacist must use his unique DEA registration number to prescribe controlled substances. One hundred thirteen pharmacies responded to the Government's request and produced more than 33,000 prescriptions identified with...