United States v. Dubrule

• Decision Date: 06 May 2016
• Docket Number: 14–6376.,Nos. 14–6290,s. 14–6290
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Kim DUBRULE (14–6290); Rosaire Dubrule (14–6376), Defendants–Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

822 F.3d 866

UNITED STATES of America, Plaintiff–Appellee

v.Kim DUBRULE (14–6290); Rosaire Dubrule (14–6376), Defendants–Appellants.

Nos. 14–6290

14–6376.

United States Court of Appeals, Sixth Circuit.

Argued: March 9, 2016.

Decided and Filed: May 6, 2016.

Rehearing En Banc Denied June 22, 2016..^*

ARGUED: Doris A. Randle–Holt, Federal Public Defender for the Western District of Tennessee, Memphis, Tennessee, Appellant in 14–6290. Megan L. Rodgers, Covington & Burling LLP, Washington, D.C., Appellant in 14–6376. Sonja Ralston, United States Department of Justice, Washington, D.C., for Appellee. ON BRIEF: Doris A. Randle–Holt, Federal Public Defender for the Western District Of Tennessee, Memphis, Tennessee, Appellant in 14–6290. Megan L. Rodgers, Benjamin C. Block, Catlin M. Meade, Covington & Burling LLP, Washington, D.C., Appellant in 14–6376. Sonja Ralston, United States Department of Justice, Washington, D.C., for Appellee.

Before: CLAY, GILMAN, and GRIFFIN, Circuit Judges.

OPINION

CLAY

, Circuit Judge.

Defendant Rosaire Dubrule (“Mr. Dubrule” or “Dubrule”), a former medical doctor, was convicted on one count of conspiracy to distribute controlled substances in violation of 21 U.S.C. § 846

, and forty-four counts of distributing controlled substances in violation of 21 U.S.C. § 841(a)(1). Defendant Kim Dubrule (“Kim”), Mr. Dubrule's wife and medical assistant, was convicted of conspiring with her husband to distribute controlled substances in violation of 21 U.S.C. § 846. The district court sentenced Rosaire Dubrule to 150 months' imprisonment and Kim Dubrule to 18 months' imprisonment. Both Mr. Dubrule (Appeal No. 14–6376) and Kim Dubrule (Appeal No. 14–6290) appeal from their judgments of conviction, raising issues concerning Mr. Dubrule's mental health.

In Appeal No. 14–6376, Mr. Dubrule argues that: (1) the district court erred by finding him competent to stand trial and proceed with sentencing; (2) the district court erred by failing to sua sponte order a competency hearing either before or during trial; (3) his pre-trial attorney and standby counsel at trial provided ineffective assistance by failing to request a competency evaluation; (4) the district court erred by holding that he had waived his insanity defense; and (5) his due process and Sixth Amendment rights were violated when the district court, in making its competency determination, relied upon an expert opinion that misleadingly claimed to be “peer reviewed.” In Appeal No. 14–6290, Kim Dubrule argues that she is entitled to a new trial because Mr. Dubrule's post-trial competency evaluation constituted newly discovered evidence that Mr. Dubrule was incapable of forming a conspiracy.

For the reasons set forth below, we AFFIRM the district court's judgments as to both Defendants.

BACKGROUND

A. Pre-trial events

In August 2004, federal agents executed a warrant to search Rosaire Dubrule's medical office in connection with an investigation into Dubrule's alleged operation of a “pill mill”—a medical clinic known for freely prescribing highly addictive prescription pain medication. Soon thereafter, the Tennessee Board of Medical Examiners (“TBME”) held hearings that culminated in an order, signed by Mr. Dubrule, suspending his medical license and stipulating that he had prescribed controlled substances “not in good faith ... or in amounts and/or for durations not medically necessary.” (R. 205, PageID 2195.)

On August 15, 2007, a grand jury indicted Rosaire and Kim Dubrule (collectively “Defendants”) on charges stemming from the same federal investigation. Defendants were released on bond. Mr. Dubrule initially retained the same attorneys who had represented him during his hearings before the TBME. But soon after he was indicted, Mr. Dubrule fired those attorneys “abruptly” and “without warning” during a hearing before a magistrate judge. (A. 44, at 97.) Dubrule thereafter filed three pre-trial motions pro se, including a motion to suppress, a motion requesting access to the transcripts of the grand jury proceedings, and a motion seeking the return of certain items seized during the August 2004 search of his medical office. After these motions were denied, Dubrule retained Marty McAfee as counsel.

In July 2008, the government filed a motion to revoke Mr. Dubrule's bond, citing several incidents that had occurred during pendency of the criminal proceedings. In one incident, Mr. Dubrule was arrested for reckless driving, driving while intoxicated on prescription drugs, and resisting arrest. Immediately after his arrest, Dubrule made a number of bizarre statements, including that the government was “trying to kill him and that he was a world famous physician. Dubrule also went into a [tirade] about how hurricane Katrina was caused by the government and that Jewish people were responsible for destroy[ing] the dams in New Orleans.” (R. 52, PageID 120.) In a separate incident, Dubrule sent a letter to the Tennessee Department of Health, asserting that the transcripts of his 2004 hearings before the TBME contained “critical omissions.” (Id. at 122.) Among those omissions, he alleged, was testimony

about the stock market securities con game which was realized in only 30 days when Merck corporation suffered a contrived loss of 1.6 BILLION dollars in one day. Of greater interest to the public however will be the coverup [sic] of deviant sexual assault against children to cover up theft of privilege.

(Id. ) The government's motion to revoke Mr. Dubrule's bond concluded that “it appears [Mr. Dubrule] is acting erratically and may be using drugs illegally or dealing with mental health issues.” (Id. at 123.) The motion was referred to a magistrate judge who ultimately allowed Mr. Dubrule to remain free under modified conditions.

In September 2008, McAfee moved to withdraw as Mr. Dubrule's counsel. McAfee's motion stated that working with Dubrule was difficult because he “focus[ed] all of his attention on conspiracy theories.” (R. 64, PageID 138.) Nevertheless, McAfee declared his belief that Dubrule was competent; McAfee opined that Dubrule may have been “taking his advice elsewhere.” (Id. ) The magistrate judge later granted McAfee's motion, citing “the continued breakdown in communications with counsel and the failure of Dubrule to pay his legal fees.” (R. 73, PageID 146.)

Upon McAfee's withdrawal, Mr. Dubrule moved to proceed to trial pro se. A hearing on this motion was held before the magistrate judge, at which Dubrule testified that he had taken correspondence courses in law, had studied “the law as it relates to pain medicine,” had familiarized himself with Federal Rules of Criminal Procedure 12

–24, was studying the crimes with which he was charged, and would locate and familiarize himself with the Federal Rules of Evidence. (R. 345, PageID 3370–72, 3387.) Dubrule also stated that he had successfully represented himself in prior legal disputes, that he understood he was facing “very serious penalties” if convicted (id. at 3376), and that he had been advised by his former attorneys regarding the import of the federal sentencing guidelines. During the hearing, the magistrate judge asked no questions and made no findings regarding Mr. Dubrule's mental health.

The magistrate judge ultimately granted Dubrule's motion to proceed pro se, but ordered that an attorney from the CJA panel be appointed to serve as Mr. Dubrule's “standby or elbow counsel” during trial. (Id. at 3391.) Attorney Ross Sampson was later selected to serve in that capacity. Mr. Dubrule thereafter filed another series of pre-trial motions raising sometimes valid—though more often ill-conceived—legal arguments. One of these motions asserted that Dubrule had been the victim of “government break-ins” prior to the 2004 search of his medical office (R. 113, PageID 237–38); a second motion stated that the TBME order that he signed “was created in relation to a financial scheme,” and cryptically alleged that his leg was “intentionally broken in a related incident.” (R. 128, PageID 302–03.)

B. Trial

Defendants' cases proceeded to trial on July 28, 2010. During its case in chief, the government presented documents and witness testimony indicating that between 2002 and 2004, Defendants issued more than 30,000 prescriptions for controlled substances. This number was alarming, given that Dubrule maintained a solo practice in a town of about 4,000 people. Witnesses testified that patients traveled from neighboring towns, counties, and states to see Mr. Dubrule due to his reputation for prescribing controlled substances. An agent with the Tennessee Bureau of Investigation testified that on a single day during the course of the Dubrules' “pill mill” conspiracy—January 5, 2004—Mr. Dubrule saw 75 different patients, all of whom received a prescription for opioids. On that day alone, Mr. Dubrule prescribed some 7,539 pills. Witnesses testified the Kim Dubrule played a significant role in the distribution of controlled substances; she would often fill out pre-signed prescription pads when patients returned to the clinic looking for refills.

Acting as his own attorney, Mr. Dubrule presented a defense premised on the medical appropriateness of his prescriptions. Specifically, Dubrule argued that his patients were suffering from untreated chronic pain. During the proceedings, Dubrule questioned patients about improvements in their conditions during treatment. He also testified on his own behalf, focusing on particular patients and the reasons why he prescribed certain medications at particular times. Kim Dubrule's defense strategy largely involved deflecting blame on to Mr. Dubrule. Through appointed counsel, Kim argued that “it's the doctor's responsibility” to make medical decisions, and that as a medical assistant, she was merely following Mr. Dubrule's directions. (R. 203, PageID 2116, 2128.)

During trial, Mr. Dubrule's questioning and narrative testimony were on many occasions subject to objections for relevancy, hearsay, and...