United States v. Henson

• Citation: 9 F.4th 1258
• Decision Date: 19 August 2021
• Docket Number: No. 19-3062,19-3062
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Parties: UNITED STATES of America, Plaintiff - Appellee, v. Steven R. HENSON, Defendant - Appellant.

9 F.4th 1258

UNITED STATES of America, Plaintiff - Appellee,

v.Steven R. HENSON, Defendant - Appellant.

No. 19-3062

United States Court of Appeals, Tenth Circuit.

FILED August 19, 2021

Blair T. Westover (Beau B. Brindley, with her on the briefs), Chicago, Illinois, for Defendant-Appellant.

James A. Brown, Assistant United States Attorney (Duston J. Slinkard, Acting United States Attorney, with him on the brief), Office of the United States Attorney, District of Kansas, Topeka, Kansas, for Plaintiff-Appellee.

Before HOLMES, SEYMOUR, and MORITZ, Circuit Judges.

HOLMES, Circuit Judge.

Defendant-Appellant Steven R. Henson ("Mr. Henson") appeals his convictions and sentence related to his involvement in a drug distribution conspiracy in and around Wichita, Kansas. He raises four issues on appeal. First, Mr. Henson argues that we should vacate his convictions and remand for a new trial because the district court violated his Sixth Amendment rights by erroneously depriving him of chosen counsel. Second, Mr. Henson claims the district court committed reversible error by instructing the jury it could find the requisite mental state for his crimes based on a "deliberate ignorance" or "willful blindness" theory of knowledge. Third, Mr. Henson seeks remand for resentencing based upon the purported procedural and substantive unreasonableness of his sentence to life in prison. Fourth and finally, Mr. Henson asks us to reconsider a prior precedent and, in doing so, hold that one of the district court's jury instructions misstated the law. For the reasons explicated infra , we reject Mr. Henson's challenges. Accordingly, exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we affirm Mr. Henson's convictions and sentence.

I

During the events at issue in this case, Mr. Henson was a licensed physician specializing in pain management who operated the Kansas Men's Clinic, along with another medical office, in the Wichita, Kansas, area. In October 2014, the Drug Enforcement Administration ("DEA") began investigating Mr. Henson after receiving calls from pharmacists complaining about his general practices and prescribing habits. See Aplee.’s Resp. Br. at 2–3; see also, e.g. , Aplee.’s Suppl. App., Vol. II, at 324–28 (Tr. Patricia O'Malley Test., dated Oct. 4, 2018) (DEA diversion investigator describing the "types of red flags" raised by complaining pharmacists regarding Mr. Henson's medical and prescribing practices, including "the large quantit[ies] of prescriptions, the high dosage amounts prescribed, the higher strength of the medication prescribed," the "flood" of patients that would arrive once one patient filled a prescription Mr. Henson wrote, the unusual hours at which Mr. Henson would see patients, Mr. Henson's lack of medical staff, and Mr. Henson's acceptance of cash payments in lieu of insurance for "very expensive" prescriptions).

Perhaps the most critical "red flag" that complaining pharmacists identified was Mr. Henson's penchant for prescribing potent controlled substances in great quantities and in dangerous combinations. In particular, Mr. Henson was known to prescribe high doses and large quantities of opioids, such as oxycodone and methadone, and benzodiazepines, such as alprazolam, either alone or in combination. See Aplee.’s Suppl. App., Vol. II, at 327–28 (Ms. O'Malley describing prescriptions written by Mr. Henson for hundreds of doses of methadone, oxycodone, and alprazolam, with the quantity of some prescriptions so high that the daily dose was twenty pills); id. , Vol. X, at 2636 (Tr. Steven Henson Test., dated Oct. 17, 2018) (Mr. Henson testifying that he prescribed a combination of methadone, oxycodone, and alprazolam "fairly frequently").¹ Drugs such as methadone and oxycodone generally depress an individual's respiratory system, see Aplee.’s Suppl. App., Vol. VIII, at 2190–91 (Tr. Timothy Rohrig Test., dated Oct. 15, 2018), whereas drugs like alprazolam "depress the central nervous system, reduce breathing, and are ‘strong, hypnotic, sedative-type drugs,’ " Aplee.’s Resp. Br. at 12 n.2 (quoting Aplee.’s Suppl. App., Vol. VIII, at 2194); see Aplee.’s Suppl. App., Vol. II, at 304 (Ms. O'Malley describing the "very common" usage by "street consumers" of Schedule II narcotic painkillers, like oxycodone, in combination with Schedule IV benzodiazepines, like alprazolam, to "experience a greater, longer high"). In combination, opioids and benzodiazepines "can decrease breathing to the point that a person dies." Aplee.’s Resp. Br. at 12 n.2; see Aplee.’s Suppl. App., Vol. II, at 304–05 (Ms. O'Malley: "The Schedule II narcotics [like oxycodone and methadone ] ... [are] used in combination with a product ... call[ed] ... benzodiazepine .... They both reduce breathing. Especially the benzodiazepine, it's a central nervous system depressant, and the two in combination can .... decrease the breathing to the point that .... [y]ou can die.").

Over the course of its investigation, the DEA uncovered several aspects of Mr. Henson's medical practice that led the agency to conclude he "was practicing without a legitimate medical purpose outside the usual course of professional practice, and that he was acting as a source of supply for street drug dealers." Aplee.’s Resp. Br. at 3; see Aplee.’s Suppl. App., Vol. IX, at 2346 (Tr. Richard Morgan, M.D., Test., dated Oct. 16, 2018) (Dr. Morgan testifying that he found Mr. Henson's medical practice "to be reckless and dangerous" and "outside of the course of legitimate practice"). To start, Mr. Henson performed no physical exams and asked virtually no questions during appointments with his patients; rather, he would ask these patients their names, ages, and whether they had pain, and then proceed to write them prescriptions for large quantities of high-dose medications.

For example, DEA Special Agent Andrea Harrison, testifying at Mr. Henson's trial, said that when she visited Mr. Henson at the Kansas Men's Clinic on May 4, 2015—while working in an undercover capacity—Mr. Henson merely asked her the following: her name, date of birth, why she was visiting him, and whether she had pain. Mr. Henson was the only individual in the office during the appointment, and he did not have Agent Harrison "fill out any new patient paperwork," examine her, "take [her] blood pressure or pulse," or ask for any medical records. Aplee.’s Suppl. App., Vol. IV, at 862–63 (Tr. Special Agent Harrison Test., dated Oct. 9, 2018). Instead, Mr. Henson asked Agent Harrison whether she was in pain generally, and after she stated that she suffered residual pain from two car accidents, he wrote her a prescription for 240, 30-milligram oxycodone pills. See id. at 864–67 (Agent Harrison testifying that Mr. Henson never asked her when the purported pain-causing car accidents occurred, whether she was hospitalized, or how much pain she was in, and that he only asked her the specific area where she had pain after he wrote the prescription). At a follow-up appointment on May 27, 2015, Mr. Henson wrote Agent Harrison another prescription for 240, 30-milligram oxycodone pills "[w]ithout asking [her] about the nature of her pain [or] whether the medication was helping or hurting her." Aplee.’s Resp. Br. at 4; see Aplee.’s Suppl. App., Vol. IV, at 872–73, 875.

Beyond Mr. Henson's cursory examinations, investigators were also troubled by the fact that many of Mr. Henson's patients were drug abusers or were diverting and selling prescriptions obtained from him. See, e.g. , Aplee.’s Suppl. App., Vol. II, at 388, 443–49 (Tr. Jeremy Wojak Test., dated Oct. 4, 2018) (one of Mr. Henson's ostensible patients testifying about his drug abuse and his sale of drugs obtained via Mr. Henson's prescriptions); id. , Vol. III, at 632–36 (Tr. Amanda Terwilleger Test., dated Oct. 5, 2018) (another of Mr. Henson's patients testifying that she and Mr. Wojak would pay cash to Mr. Henson to obtain prescriptions for hundreds of oxycodone pills to sell or to feed their addictions); id. , Vol. XIII, at 3561–68 (Tr. Joel Torres Test., dated Oct. 10, 2018) (Mr. Henson's former patient testifying that Mr. Henson charged $300 cash for office visits; did not accept insurance; performed no physical examinations; and wrote Mr. Torres prescriptions for oxycodone, methadone, and alprazolam, which Mr. Torres then either sold or used to "get high" and feed his addiction); see also id. , Vol. II., at 563–74 (Tr. Jordan Allison Test., dated Oct. 4, 2018) (Mr. Allison testifying about his oxycodone addiction and his practice of buying drugs from Mr. Wojak and either using them or selling them).

In particular, one of Mr. Henson's patients, Nick McGovern, became a major supplier and distributor of drugs based on his relationship with Mr. Henson. See Aplee.’s Suppl. App., Vol. VI, at 1541–48 (Tr. Grant Lubbers Test., dated Oct. 11, 2018) (Mr. Henson's former patient testifying that he purchased pills from Mr. McGovern, who obtained them via prescriptions written by Mr. Henson, and that Mr. McGovern introduced Mr. Lubbers to Mr. Henson, who then wrote prescriptions directly for Mr. Lubbers); id. , Vol. VII, at 1730, 1735–43 (Tr. Keith Attebery Test., dated Oct. 12, 2018) (same); id. , Vol. XIII, at 3565–68 (same as to Mr. Torres). Mr. McGovern was himself a heavy drug abuser, and he eventually succumbed to an overdose of methadone and alprazolam prescribed by Mr. Henson. See Aplee.’s Suppl. App., Vol. V, at 1364–65; id. , Vol. VI, at 1528–30 (Tr. Timothy Gorrill Test., dated Oct. 11, 2018) (coroner testifying regarding Mr. McGovern's death); id. , Vol. VII, at 1710–11, 1802–03; see also Aplee.’s Resp. Br. at 19–20.

As well, despite being notified numerous times that his patients were diverting their medications, Mr. Henson continued his prescribing habits unabated. See, e.g. , Aplee.’s Suppl. App., Vol. X, at 2679, 2692–94 (Mr. Henson acknowledging that he was notified by pharmacies and family members that his patients might be diverting...