United States v. Garrison

• Decision Date: 25 April 2018
• Docket Number: No. 15-50137,15-50137
• Citation: 888 F.3d 1057
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. David James GARRISON, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

888 F.3d 1057

UNITED STATES of America, Plaintiff–Appellee,

v.David James GARRISON, Defendant–Appellant.

No. 15-50137

United States Court of Appeals, Ninth Circuit.

Submitted March 6, 2018^* Pasadena, California

Filed April 25, 2018

Michael R. Belter (argued), Salinas, California, for Defendant–Appellant.

Angela J. Davis, Assistant United States Attorney, Major Frauds Section; Lawrence S. Middleton, Chief, Criminal Division; United States Attorney's Office, Los Angeles, California; for Plaintiff–Appellee.

Before: Ronald M. Gould and Mary H. Murguia, Circuit Judges, and Dana L. Christensen,^** Chief District Judge.

GOULD, Circuit Judge:

After a jury trial, David James Garrison was convicted of conspiracy to distribute controlled substances in violation of 21 U.S.C. § 846. During trial, the government offered evidence that Garrison and his co-conspirators had abused their positions as healthcare providers by intentionally prescribing OxyContin, a powerful opioid pain reliever, for no legitimate medical purpose as part of a scheme to sell the drug on the street. Garrison appeals his conviction, arguing (1) that there was insufficient evidence to support his conviction, and (2) that the district court should have dismissed the charges against him, acquitted him, or granted him a mistrial because the government did not timely disclose certain information. We affirm.

I

There is now an epic crisis of deadly opioid abuse

and overuse. In 2016, roughly 11.5 million people in the United States misused prescription opioids. U.S. Dep't of Health and Human Services, About the U.S. Opioid Epidemic (2018), https://www.hhs.gov/opioids/about-the-epidemic/ (last visited March 8, 2018). That same year, 116 people on average died every day from opioid-related drug overdoses. Id. And in 2017, the Acting Secretary of Health and Human Services declared the national opioid abuse epidemic a public health emergency. U.S. Dep't of Health and Human Services, HHS Acting Secretary Declares Public Health Emergency to Address National Opioid Crisis (2017), https://www.hhs.gov/about/news/2017/10/26/hhs-acting-secretary-declares-public-health-emergency-address-national-opioid-crisis.html (last visited March 8, 2018).

In the midst of this crisis, we trust doctors and healthcare professionals to be conscientious gatekeepers to these dangerous and potentially fatal drugs. But unfortunately some medical professionals betray their duty to do no harm as healthcare providers and abuse their prescription pads. This is exactly what happened at the Lake Medical Group clinic (the "Clinic"), where Garrison worked as a licensed physician's assistant from summer 2009 until the Clinic was closed in February 2010.

The Clinic was what is often described as a "pill mill," and the activities of people working there led to the illicit street-sale of more than a million maximum-strength OxyContin tablets. From August 2008 to September 2010, the Clinic generated 13,207 prescriptions for OxyContin—all but six of which were for the drug's maximum dosage. The Clinic employed "patient recruiters" who induced people living in homeless shelters and rescue missions to visit the Clinic. These of course were not true "patients" in the ordinary sense of that word. The Clinic would then use the names and Medicare or Medi–Cal cards of the recruited patients to generate fraudulent OxyContin prescriptions. The recruited patients did not retain the OxyContin that they were prescribed. Instead, people working for the Clinic retrieved the drug from participating pharmacists or from the recruited patients, and the Clinic operators then had the pills sold illegally. The government learned of the Clinic's operations and took steps to shut the Clinic down and prosecute those it believed responsible for the scheme.

A

On September 28, 2011, Garrison and eleven other codefendants were indicted. Garrison was indicted for conspiracy to distribute controlled substances in violation of 21 U.S.C. § 846, based on his alleged role in the conspiracy to distribute OxyContin for no legitimate medical purpose.¹ A second superseding indictment was filed, and the case proceeded to trial. Garrison was tried with four alleged co-conspirators: Elza Budagova, who acted as a medical assistant at the Clinic, and pharmacists Theodore Yoon, Phic Lim, and Perry Tan Nguyen.

An expert testified that there were indications from the Clinic's medical files that the prescriptions from the Clinic were not for a proper medical purpose. Many files had minimal patient histories and in other files the patient histories were virtually identical, indicating that they had been forged. Further, there was expert testimony that immediately prescribing maximum strength OxyContin, as was done at the Clinic, was not a proper medical practice.

At trial, the government offered documentary and testimonial evidence against Garrison. Garrison stipulated that he wrote and signed hundreds of prescriptions for OxyContin

with similar diagnoses on the prescription pads of other medical professionals. Garrison also agreed that it was his handwriting on numerous prescriptions for OxyContin that appeared to have been pre-signed by other persons working at the Clinic. He also signed and left blank prescription forms in his own name, apparently for the use of others in making prescriptions to the phony patients.

Recruited patients testified at trial that they had never been examined by anyone at the Clinic, yet their medical files reflected that they had been given an OxyContin

prescription in Garrison's handwriting, though on other physicians' prescription pads. There was also video evidence of Garrison prescribing OxyContin to a person posing as a recruited patient after a six minute interaction. A medical expert testified that there was no medical need for that OxyContin prescription.

Garrison also lied to an investigator about the extent of the physician oversight he received at the Clinic—claiming that almost all of his patient examinations were signed off on by a physician, whereas the investigator found that the vast majority of Garrison's examinations were not cosigned by a licensed physician.

Two cooperating witnesses testified against Garrison: Eleanor Santiago and Julie Shishalovsky. Santiago, a former licensed physician, had pled guilty to health care fraud after falsifying Medi–Cal claims while she was working at the Clinic. Santiago testified that the Clinic was a pain management clinic with a focus on people suffering from chronic pain, which meant that many of the patients had already tried to use less intense pain medications. She testified that Garrison saw patients without her oversight and that Garrison had prescribed OxyContin

on a prescription slip that Santiago had pre-signed. Santiago also testified that Garrison would sometimes give her medical charts to cosign, and that she had noticed that he had prescribed all his patients OxyContin. She told Garrison that some of the patients did not need that drug, but he continued prescribing OxyContin for them anyway.

Shishalovsky worked as a receptionist at the Clinic and testified that the Clinic's operators directed that all of the Clinic's patients should be prescribed the highest strength OxyContin

, even when there was no need for OxyContin. She also testified that Garrison completed pre-signed prescriptions "very often," and also pre-signed his own prescriptions.

Garrison made extensive efforts to impeach the credibility of both of these witnesses, stressing that they both had criminal records and had engaged in fraudulent conduct in the past. Garrison did not call any witnesses of his own in his defense. Garrison's main line of defensive argument was that he was not aware of the conspiracy and that he did not knowingly participate in the conspiracy.

B

Before and during trial, the government made grave mistakes in its prosecution of the case by repeatedly failing to timely disclose information to the defense, as was required by law. First, a witness who testified at trial, Bernard Harris, admitted at trial that he had submitted a false medical report to his probation officer and to a judge, and Harris said that Santiago and Shishalovsky helped him fabricate the record. The government questioned Santiago about Harris's statement the morning before she testified, and she admitted that she had helped falsify the medical records. But the government did not turn over its notes documenting Santiago's statement to the defense, although it questioned Santiago about assisting in the falsification during her trial testimony. Santiago testified that she had helped falsify a letter regarding Harris's medical records. Shishalovsky also admitted during trial to falsifying medical records, and the government stated that Shishalovsky had told them about this months before trial, although, the interview report from that discussion did not contain this pertinent disclosure.

Also, the government delayed turning over to the defense documents relating to Shishalovsky's plea negotiations with the government until a couple of days before Shishalovsky testified. The government has conceded that it should have turned over this information much sooner pursuant to Giglio v. United States , 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), which requires the disclosure of promises made to witnesses in exchange for their testimony. Importantly, the newly-disclosed negotiations informed the defense for the first time that in exchange for testimony, the government agreed that Shishalovsky would be able to continue working in the healthcare field. The government failed to disclose this agreement, either during Shishalovsky's sentencing or during her direct testimony at trial. The district judge was also belatedly informed of this agreement, and during a break in Shishalovsky's testimony the court advised the jury of the government's and Shishalovsky's failure to disclose this agreement, and told the jury that it could...