U.S. v. Shinderman

• Decision Date: 29 January 2008
• Docket Number: No. 07-1569.,07-1569.
• Citation: 515 F.3d 5
• Parties: UNITED STATES of America, Appellee, v. Mark S. SHINDERMAN, M.D., Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

515 F.3d 5

UNITED STATES of America, Appellee, v. Mark S. SHINDERMAN, M.D., Defendant, Appellant.

No. 07-1569.

United States Court of Appeals, First Circuit.

Heard November 7, 2007.

Decided January 29, 2008.

Michael A. Cunniff, with whom Jay P. McCloskey, Thimi R. Mina, and McCloskey, Mina, Cunniff & Dilworth, LLC were on brief, for appellant.

Margaret D. McGaughey, Appellate Chief, with whom Paula D. Silsby, United States Attorney, was on brief, for appellee.

Before LYNCH, Circuit Judge, CAMPBELL and SELYA, Senior Circuit Judges.

SELYA, Senior Circuit Judge.

The admonition "physician, heal thyself" is a biblical proverb, Luke 4:23 (King James), suggesting that people should address their own failings. In the case at hand, this admonition has both literal and figurative application. The tale follows.

Mark S. Shinderman, M.D., is a physician specializing in psychiatry and the treatment of addiction. The federal government indicted him on a gallimaufry of criminal charges stemming from his unauthorized use of another doctor's name and Drug Enforcement Administration (DEA) registration number. A jury convicted him on many of those charges.

On appeal, the defendant challenges both his convictions and his sentence. He advances four assignments of error, which impugn (i) the district court's refusal to apply the exclusionary rule to evidence allegedly obtained in violation of federal regulations designed to protect the confidentiality of substance abuse treatment records, (ii) the foreclosure of a proposed entrapment defense, (iii) an evidentiary ruling, and (iv) the use of an obstruction of justice enhancement during sentencing. Concluding, as we do, that each and all of these animadversions lack merit, we affirm the judgment below.

I. BACKGROUND

We rehearse here only those facts that are necessary to place this appeal in perspective. Other facts are added in our subsequent discussion of particular issues.

Following a dramatic increase in drug-overdose deaths in Maine, the United States Department of Health and Human Services (ills) began investigating possible links between this spike in mortality and health-care clinics specializing in the treatment of drug addiction. One of the providers scrutinized in the course of this administrative inquiry was CAP Quality Care, a high-dose methadone treatment clinic located in Westbrook, Maine.

The defendant, an advocate of the combined use of methadone and benzodiazepine in the treatment of patients addicted to opiates, served as CAP's sponsor and national medical director. Federal law stipulates that any doctor who prescribes a controlled substance must possess a state-specific DEA registration number. See 21 U.S.C. § 822(a), (e). When CAP opened in 2001, the defendant had only an Illinois medical license and DEA number (although he had obtained a temporary license to practice medicine in Maine).

In the course of HHS's administrative inquiry into CAP's affairs, its investigators took a hard look at the defendant's prescription-writing practices. The defendant apparently attempted to write prescriptions for controlled substances using his Illinois DEA number. After Maine pharmacies refused to fill those prescriptions, he started writing benzodiazepine prescriptions under the name and Maine-specific DEA number of Dr. Steven Keefe, a fully credentialled physician affiliated with CAP.

At that point, the inquiry intensified. The government's next step was to subpoena CAP's Medicaid records. Under statutes and regulations governing the disclosure of substance abuse treatment records, the government was required to obtain court authorization to use the subpoenaed documents for prosecutorial purposes. See 42 U.S.C. § 290dd-2(b)(2)(C); 42 C.F.R. § 2.66(a).

On April 24, 2003—shortly after the government launched a criminal investigation aimed at the defendant—a federal magistrate judge granted an ex parte motion seeking leave to disclose to federal law enforcement personnel the Medicaid records garnered from CAP pursuant to HHS's original administrative subpoena. On August 22, the magistrate judge granted a second ex parte motion seeking authorization to release CAP patient treatment records to the prosecutors. On September 5, the magistrate judge granted yet a third ex parte motion; this motion sought access to medical records seized in the course of executing a search warrant.

In each instance, the magistrate judge found good cause for disclosure and honored the government's supplication that he delay notice of the order granting the motion to avoid compromising the criminal investigation. To that end, the magistrate judge maintained the orders under seal and decreed that notice to the defendant and all other affected parties could be deferred for up to ninety days.¹ The record contains copies of the notices subsequently sent by the government to the defendant as well as an affidavit from an HHS official attesting that notice of the issuance of the disclosure orders had been given within the allotted time frame.

The denouement came much later. On August 25, 2005—the same date on which the government filed a civil action against CAP for, among other things, Medicaid fraud—a federal grand jury handed up a sixty-eight count indictment. The first twenty-five counts charged the defendant with unlawful use of a DEA registration number issued to another physician, in violation of 21 U.S.C. § 843(a)(2). Counts 26 through 50 charged him with aiding and abetting the acquisition of a controlled substance by misrepresentation, in violation of 21 U.S.C. § 843(a)(3). Counts 51 and 52 charged him with falsifying pharmacy records, in violation of 21 U.S.C. § 843(a)(4)(A). The last sixteen counts charged him with making false statements related to the delivery of or payment for health-care benefits, in violation of 18 U.S.C. § 1035(a)(2).

The defendant filed a host of motions, seeking among other things to suppress the fruits of the administrative subpoenas and the search. Pertinently, he argued that all of the evidence disclosed in pursuance of the ex parte court orders should be excluded because the government had flouted the notice requirements imposed by federal substance abuse treatment regulations.

The district court found that the reprieve for the giving of notice granted by the magistrate judge had no legal basis and that the defendant should have been given notice as soon as the patient records were disclosed to prosecutors. United States v. Shinderman, 432 F.Supp.2d 149, 154 (D.Me.2006). The court nevertheless refused to suppress the evidence, reasoning that suppression was too drastic a remedy. Id.

The trial lasted for nearly two weeks. A parade of CAP patients testified to having seen the defendant write Keefe's name and DEA number on controlled substance prescriptions. The centerpiece of the government's case was Keefe's testimony that, while he agreed to provide the defendant with pre-signed prescription blanks, he never authorized the defendant to sign his name or use his DEA number. In the defense case, the defendant testified that Keefe had given him such permission.

After a day and a half of deliberations, the jury found the defendant guilty on the twenty-five counts that alleged unlawful use of a DEA number belonging to another physician, twenty-four of the twenty-five aiding and abetting counts, both counts dealing with falsification of pharmacy records, and seven of the sixteen false statement counts. The government voluntarily dismissed the remaining aiding and abetting count, and the jury acquitted the defendant on nine of the false statement counts.

The sentencing phase followed. The district court applied enhancements for obstruction of justice and abuse of a position of trust, and set the guideline sentencing range (GSR) at 15 to 21 months. The court then departed downward and imposed a six-month incarcerative sentence. This timely appeal followed.

II. ANALYSIS

We separate the defendant's asseverational array into its four component parts and treat those parts sequentially.

A. Suppression.

In the interest of guaranteeing the efficacy of substance abuse treatment programs, Congress has directed that all substance abuse treatment records be kept confidential. See 42 U.S.C. § 290dd-2(a). Disclosure is permitted only in narrow sets of circumstances. These include consent, id. § 290dd-2(b)(1); audit, id. § 290dd-2(b)(2)(B); and court order, id. § 290dd-2(b)(2)(C).

Applicable regulations confirm and elaborate upon the statute's commitment to confidentiality. See 42 C.F.R. §§ 2.1-2.67. The regulations warn that such records "may be disclosed or used only as permitted by these regulations and may not otherwise be disclosed or used in any civil, criminal, administrative, or legislative proceedings conducted by any Federal, State, or local authority." Id. § 2.13.

The regulatory mosaic provides safeguards attendant to the disclosure and use of substance abuse treatment records in connection with a criminal case. See id. §§ 2.65-2.67. To investigate or prosecute either a substance abuse "program" or a "person holding the records," law enforcement personnel must obtain a court order premised upon a showing of good cause, id. § 2.66(c) (cross-referencing § 2.64(d)(e)), and must employ certain prophylactic measures to shield patients' identities, id. § 2.66(d). While a court may issue a disclosure order without any particular form of prior notice, the regulations require that "upon implementation of an order" the program, the person holding the records, and any patient whose records are disclosed—a group whom we shall call "the protected parties"—"must be afforded an opportunity to seek revocation or amendment of that order." Id. § 2.66(b).

The district court found that the defendant (as the sponsor of CAP) qualified as a "program" for purposes of this regulation and, thus, was entitled to seek revocation or amendment of the ex parte disclosure orders...