United States v. Lang
| Decision Date | 31 October 2017 |
| Docket Number | Case No. 15-5997 |
| Parties | UNITED STATES OF AMERICA, Plaintiff-Appellee, v. BARBARA LANG, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 17a0600n.06
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TENNESSEE
BEFORE: KEITH, ROGERS, and McKEAGUE, Circuit Judges.
McKEAGUE, Circuit Judge. This is a criminal appeal following a lengthy trial. A federal jury convicted Barbara Lang of running a "pill mill" in Tennessee and structuring cash deposits to avoid U.S. Treasury reporting requirements. She appeals on a host of evidentiary, constitutional, and sentencing issues. We AFFIRM.
After a twenty-six-day trial, a federal jury convicted Lang on twenty-one counts of federal drug and money-laundering charges. The district court imposed a 280-year sentence. Specifically, Lang was convicted under three separate statutes:
The jury acquitted Lang on one drug-involved-premises count and seven structuring counts. After the government rested, the court, on Lang's motion, entered a judgment of acquittal on a charge of obstructing the due administration of the Internal Revenue Code. 26 U.S.C. § 7212(a).
Lang and her daughter (Faith Blake) operated a pain clinic called Superior One ("Superior") in Tennessee. The clinic employed one medical director (a licensed doctor), several nurse practitioners, and other para-physician staff members. Neither Lang nor Blake was a medical professional; instead, their ostensible role was to manage the clinic's non-medical affairs. Lang, for example, led the clinic's Bible studies.
The U.S. Drug Enforcement Agency ("DEA") eventually suspected that Superior was a "pill mill," which is a clinic that dispenses drugs with no legitimate purpose. The evidence supporting this suspicion was substantial. At all hours of the day, the line to enter Superior was long, and patients frequently waited all day to get an appointment. Nearly all of the people who observed the clinic's patients—neighbors, city officials, other patients, and employees alike—were convinced that most of Superior's patients were drug addicts. For example, witnesses observed many patients with "track marks" on their arms and patients who were "strung out," "zombified," and "out of it." One witness testified that the scene reminded him of a drug house.
Through surveillance and investigation, the DEA confirmed its suspicion. It obtained wiretaps for Lang's cell phone, where agents recorded conversations between Lang and a well-known drug dealer, John Goss. In these conversations, Lang invited Goss to bring his buyers to her clinic, and Goss routinely asked Lang to let his clients skip the line. Lang was well-aware that Goss was an active drug dealer. An undercover agent (Mark Delaney) posed as a patient and was eventually able to obtain access to a provider at the clinic who gave him excessive pain medication without much examination and without viewing any medical records. Several otheremployees of the clinic, concerned about the activity there, passed along information to the DEA. The DEA was also informed that, on at least one occasion, Blake ordered a doctor to prescribe pain medication to a patient even though the patient did not need it.
Blake, however, eventually started illegally obtaining pain medication for herself. This caused her attendance at the clinic to lapse, and Lang stepped in to fill the void, sometimes seeing patients on her own, even though she had no medical training. Lang eventually discovered that Blake was giving drugs to her twelve-year-old child—Lang's grandson. This fact sparked a fight between the two women that eventually led to the resignation of the medical director and the closure of Superior for good.
After Superior closed, the two women formed their own medical clinics. Lang's clinic was named Primary Care ("Primary"), and Blake's clinic was named Elite Care ("Elite"). Lang retained many of the patients who previously attended Superior, and some of the medical staff followed her there as well. Lang made some attempts to run Primary legally, but it still suffered from many of the same issues. For example, soon after Primary opened, Lang called Goss and suggested that he start bringing his customers to her clinic. Lang also ordered her physicians to issue prescriptions, even when the doctors did not think the prescriptions were warranted.
These issues led the DEA to continue investigating Lang and Primary. Eventually, the DEA raided Primary, Elite, and Lang's home. The evidence gathered during the government's investigation and surveillance was eventually used to indict Lang, Blake, and several other members of the clinics' staff on federal drug and money-laundering charges. During trial preparation, the government turned over a sample of the clinics' paper medical records to their expert witness, Dr. Kloth, who concluded that the overwhelming majority of the prescriptions issued to these patients lacked a legitimate medical purpose.
The government presented substantial evidence to the jury. To make its case, the government called several codefendants who had pled guilty under a cooperation agreement, its expert witnesses, the clinic's neighbors, several patients who had been addicted to the pain medication prescribed by the clinic, and the law enforcement agents involved in the investigation. Lang defended by insisting that the prescriptions were legitimate and that she had no knowledge of any illegality occurring at either clinic. The jury convicted her on twenty-one of the twenty-nine counts remaining at the close of the proofs.
At sentencing, the court found Lang's base offense level to be 38. After enhancement, her offense level was set at 43, carrying a recommended sentence of 3,360 months' imprisonment—an effective life sentence. Lang spoke for over an hour in a plea for mercy, asserting that she never meant to break the law and presenting many characters from the Bible and U.S. history as her life inspirations. The district judge, unimpressed, sentenced Lang according to the Guidelines. The court reasoned that the need for general deterrence and retributive punishment were compelling, considering the size of the conspiracy, the prescription drug epidemic, and Lang's refusal to acknowledge her own culpability.
This appeal followed. Additional facts are supplied in the analysis when necessary.
Lang appeals her conviction on six grounds: (A) the district court erroneously admitted evidence of her financial misdeeds through an IRS Agent; (B) the district court improperly admitted the testimony of the government's medical expert; (C) the district court improperly admitted evidence of an overdose death, news articles about investigations of other medical clinics, and a chronology found in her desk; (D) the district court improperly denied her Fourth Amendment motion to suppress; (E) the trial resulted in cumulative error; and (F) thegovernment presented insufficient evidence to sustain her drug convictions. She also argues that the district court imposed an unlawful sentence. None of these arguments have merit.
Lang's first argument revolves around an IRS Agent's testimony that the government offered in pursuit of an obstruction charge in the indictment (Count 91). See 26 U.S.C. § 7212(a) (). She contends that Count 91 was defective as charged, and should have been dismissed during pretrial motion hearings. The district court found before trial that the count was properly charged, but entered a judgment of acquittal after the government's case for lack of evidence.
Since Lang was not convicted on the obstruction count, she can only win if she can show some other prejudice from the court's refusal to dismiss the count before trial. Her appeal therefore focuses on the relevancy of the IRS Agent's testimony. This agent (Don Lemons) testified about Lang's financial misdeeds during the government's case-in-chief. Lang argues that the admission of this testimony requires us to grant her a new trial. Her theory involves two steps. First, Agent Lemons's testimony was unfairly prejudicial and was only relevant to the obstruction charge. Thus, it would have been excluded if the court had granted her motion to dismiss Count 91 before Agent Lemons testified. Second, the indictment on Count 91 was legally defective—and therefore should have been dismissed—because it did not allege knowledge of a discrete, official IRS action. Because Lang's arguments fail on the first issue, we do not reach the second.
The government responds to Lang's arguments by saying that Agent Lemons's testimony was relevant to other charges in the indictment, not just Count 91. The government is mostly correct. Even where it is wrong, any error was harmless.
Generally, we review evidentiary rulings on relevance and unfair prejudice for an abuse of discretion. United States v. Jackson-Randolph, 282 F.3d 369, 375 (6th Cir. 2002). We review unpreserved evidentiary objections for plain error. United States v. Kelly, 204 F.3d 652 (6th Cir. 2000); Fed. R. Evid. 103. If counsel raises objections in a motion in limine but the court defers its ruling or makes its decision "in any way qualified or conditional," then "the burden is on counsel to raise objection [at trial] to preserve error." United States v. Poulsen, 655 F.3d 492, 510 (6th Cir. 2011) (quoting United States v. Brawner, 173 F.3d 966, 970 (6th Cir. 1999)).
The bulk of Lang's pretrial motions focused on her objections to the indictment. However, at the end of Lang's supplemental brief and during oral argument on the...
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