United States v. King

• Citation: 898 F.3d 797
• Decision Date: 02 August 2018
• Docket Number: No. 17-1140, No. 17-1976,17-1140
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Anthony Markeith KING, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Kristen L. Raines, (originally named Kristin L. Raines), Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

898 F.3d 797

UNITED STATES of America, Plaintiff-Appellee,

v.Anthony Markeith KING, Defendant-Appellant.

United States of America, Plaintiff-Appellee,

v.Kristen L. Raines, (originally named Kristin L. Raines), Defendant-Appellant.

No. 17-1140

No. 17-1976

United States Court of Appeals, Eighth Circuit.

Submitted: March 13, 2018

Filed: August 2, 2018

Rehearing and Rehearing En Banc Denied September 24, 2018

Allison Waldrip Bragg, Anne E. Gardner, Assistant U.S. Attorney, Angela Sue Jegley, Assistant U.S. Attorney, U.S. Attorney's Office, Eastern District of Arkansas, 425 W. Capitol Avenue, Little Rock, AR 72201, for Plaintiff-Appellee.

Anthony Markeith King, Pro Se, Federal Correctional Institution, P.O. Box 7000, Texarkana, TX 75505-0000, Gene McKissic, Sr., McKissic & Associates, 116 W. Sixth Avenue, P.O. Box 9587, Pine Bluff, AR 71611, for Defendant-Appellant.

Before WOLLMAN, SHEPHERD, and ERICKSON, Circuit Judges.

ERICKSON, Circuit Judge.

This consolidated appeal arises out of the operation of a "pill mill" conducted under the guise of a legitimate clinic. Anthony Markeith King and Kristen L. Raines were charged in a conspiracy to distribute scheduled controlled substances without an effective prescription in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), (b)(1)(E), and 846. Raines was also charged with two counts of distribution of a scheduled controlled substance without an effective prescription, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), and (b)(1)(E).

King pled guilty to the conspiracy charge. The district court¹ put King at a base offense level of 26, then added a four-point enhancement for acting as an organizer or leader and subtracted two points for acceptance of responsibility. King then had an offense level of 28, criminal history category I, with a Guidelines range of 78-97 months. The court sentenced King to 120 months’ imprisonment, varying upward due to the nature of King’s role in the conspiracy.

Raines proceeded to trial and was convicted on the conspiracy charge and acquitted on the distribution charges. The district court found Raines to be at offense level 26 (after applying a two-point enhancement for abuse of position of trust), criminal history category I, with a Guidelines range of 63-78 months. The court sentenced Raines to 70 months’ imprisonment.

Raines appeals her conviction and sentence, claiming: 1) the court improperly admitted evidence at trial, 2) the court erred in instructing the jury, 3) the evidence was insufficient to sustain a conviction, and 4) her sentence is substantively unreasonable. King challenges the reasonability of his sentence. We affirm the district court in all respects.

I. Background

Artex Medical Clinic opened in Little Rock, Arkansas, in June of 2014. Patients at Artex frequently received prescriptions for hydrocodone

and/or Xanax. Artex operated on a cash-fee basis, where patients would pay $200 in cash prior to being evaluated. Anthony King worked as a "recruiter" for the clinic. King recruited patients from across Arkansas to the clinic. Patients were required to sign a "pain contract" in which they agreed to opioid treatment before they were seen or diagnosed by medical staff.

Kristen Raines began working as an Advanced Practice Registered Nurse for Artex in July of 2014. From nearly the time she was hired until the clinic closed in September of 2014, Raines was the only employee of Artex present on a daily basis who was licensed to write prescriptions for hydrocodone

and Xanax.

The Drug Enforcement Administration announced that drugs containing hydrocodone would become Schedule II drugs on October 6, 2014, which led to Artex closing its doors at the end of September. Shortly after Artex closed, its operators (including King) opened KJ Medical Clinic. Because of hydrocodone’s

new scheduling, Artex employed two doctors as prescribing physicians. The new clinic operated similarly to the old clinic—patients would walk-in and pay either $200 for a pain evaluation or $150 for treatment for a "cough." In early November of 2014, Raines began working at KJ.

The signs that KJ was not operating as a legitimate medical establishment were apparent. Receptionists at the clinic guided patients’ answers on questionnaires to make them appropriate candidates for controlled substance prescriptions. Patients were instructed to fill their prescriptions only at particular pharmacies. Patients were required to sign forms attesting that they were not involved in any government investigation into the clinic. Patients were given an "entrance number" in the parking lot near the building and were only allowed inside in limited numbers. Upon entry plaintiffs were checked for weapons by an armed security guard.

The clinic’s unorthodox methods extended to patient evaluations and the prescription of medications. Doctors at the clinic would pre-fill prescriptions for hydrocodone

and Xanax. Nurses would then conduct in-person evaluations of the patients and complete the pre-filled prescriptions over the physician’s signature.

Raines left KJ in early January of 2015. King continued recruiting patients until May of 2015, when the clinic was raided by the DEA. Following the raid, Raines and King were charged in a conspiracy to distribute controlled substances. Raines was also charged with two counts of distribution of a controlled substance without an effective prescription.

At trial the government presented evidence from cooperating co-conspirators, confidential informants, and an expert medical witness. Stella Green, a coworker nurse, testified that using pre-signed prescriptions was standard procedure for the clinic. Several other witnesses also testified that the clinic relied on pre-signed prescriptions.

The government introduced evidence from a confidential informant who visited the clinic in November of 2014, January of 2015, and March of 2015. Raines was working at the clinic during the time period of the first two visits, but not the third. The informant testified that on each visit prospective patients were told to take a number, get in line, and wait to receive a prescription. She described the atmosphere as chaotic, with patients arguing about who would get inside to fill their prescription. She testified that on her first visit when she handed her paperwork in and marked only a "5" on the pain scale, a desk clerk asked her to change her answer to a "10" or else she would be unable to see a doctor. The government introduced a video taken during the informant’s third visit to the clinic. The informant testified that the contents of the video were similar in many ways to her experience during her first two trips to the clinic. A coworker testified that Raines would have walked through or seen the same areas that the video was taken in as an ordinary part of her workday.

A medical expert, Dr. Carlos Roman, testified regarding standards of practice in the field of pain management, guidelines for prescribing medications, and "red flags" that indicated potential painkiller abuse. Dr. Roman had twenty years of experience in the medical profession and had served on the Arkansas State Medical Board Review Committee since 2005, including as chairman. Dr. Roman also served as the Chief of Pain Management at St. Vincent Infirmary in Little Rock, Arkansas. Dr. Roman noted that the Artex "pain contract" and KJ’s signed form prohibiting patients from participating in law enforcement activity were not typical for a legitimate medical establishment. He also testified regarding the Prescription Monitoring Program ("PMP") data offered by the United States as evidence of irregular prescription activity. The data was submitted to the trial court in a summary chart form showing hydrocodone and Xanax prescriptions allegedly written by Raines while working at Artex. The original versions of the prescriptions referenced in the chart were also submitted to the court. Of approximately 112 patient files from KJ, 21 contained paperwork signed by Raines, along with prescriptions bearing Raines’s handwriting and a physician’s signature.

Dr. Roman testified that he believed the records indicated a failure to pursue a legitimate medical purpose. He based his review on all of the files available from Artex, ten files chosen at random from KJ, and eleven files identified as relating to patients Raines treated at KJ. He noted that patients had consistently marked either a "9" or "10" on the pain scale. He further remarked that the patients’ answers to anxiety and depression questionnaires were outside the normal boundary for treatment by a pain specialist and indicated suicidal tendencies. In particular, he noted that several of the files raised concerns that medical treatment had been limited to the prescription of opioids when the alleged circumstances would have required more detailed and thorough care. He also commented on an audio recording from an informant patient in which Raines referred to Xanax by the street term "bars." He noted that using street terms is not normal in medical practice.

During the jury instruction conference, Raines requested a "good faith" instruction, proposing the following language:

When you consider the good faith defense, it is the defendant’s belief that is important. It is the sincerity of the defendant’s belief that determines if he or she acted in good faith. If the defendant’s belief is unreasonable, you may consider that in determining his or her sincerity of belief, but an unreasonable belief sincerely held is good faith.

The trial judge declined to provide the instruction. The trial judge provided an instruction on willful blindness over Raines’s objection.

Raines was convicted on the conspiracy charge and acquitted on the substantive distribution charges. At sentencing the district court found Raines responsible for 125,940 pills of hydrocodone and 151,076 pills of Xanax. The court also applied an enhancement for abuse of position of trust. Raines was sentenced to a term of 70 ...