United States v. MacKay, No. 12–4001.

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtBALDOCK
Citation715 F.3d 807
PartiesUNITED STATES of America, Plaintiff–Appellee, v. Dewey C. MacKAY, III, Defendant–Appellant.
Decision Date30 April 2013
Docket NumberNo. 12–4001.

715 F.3d 807

UNITED STATES of America, Plaintiff–Appellee,
v.
Dewey C. MacKAY, III, Defendant–Appellant.

No. 12–4001.

United States Court of Appeals,
Tenth Circuit.

April 30, 2013.


[715 F.3d 812]


Peter Stirba (Nathan A. Crane and Kathleen Abke with him on the brief), Stirba & Associates, Salt Lake City, UT, for Appellant.

Elizabethanne C. Stevens, Assistant United States Attorney (David Barlow, United States Attorney, with her on the brief), Office of the United States Attorney, Salt Lake City, UT, for Appellee.


Before KELLY and BALDOCK, Circuit Judges, and JOHNSON, District Judge.*

BALDOCK, Circuit Judge.

The bedrock principle that “no person shall be made to suffer the onus of a criminal conviction except upon ... evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense” is well-settled in our criminal jurisprudence. Jackson v. Virginia, 443 U.S. 307, 316, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). We frequently hear appeals from defendants challenging the sufficiency of the evidence, but all too often, defendants misunderstand the standard under which we review their appeal. In application, we review the evidence, both direct and circumstantial, in a light most favorable to the Government. United States v. Kieffer, 681 F.3d 1143, 1152 (10th Cir.2012). The evidence need not “convince a trier of fact beyond all doubt,” rather, the evidence “need only reasonably support the jury's finding that the defendant is guilty of the offense beyond a reasonable doubt.” Id. Importantly, we have repeatedly emphasized that the evidence, “together with the reasonable inferences to be drawn therefrom, must be substantial, but it need not conclusively exclude every other reasonable hypothesis and it need not negate all possibilities except guilt.” Id. (internal quotation marks omitted). In the present appeal, Defendant Dewey C. MacKay, III, whom a jury convicted of unlawfully prescribing controlled substances, challenges the sufficiency

[715 F.3d 813]

of the evidence underlying several counts of his conviction. He also challenges certain jury instructions, admission of an exhibit and expert testimony, and the legality of his sentence. Our jurisdiction arises under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. For reasons to follow, we affirm the district court's judgment of conviction, but remand for resentencing.

I.

Defendant Dewey C. MacKay practiced medicine in Brigham City Utah. Prior to 2001, Defendant focused his practice on orthopedics. Trial Tr., 73, July 20, 2011. But, because of his own health problems and a desire not to see patients travel to seek treatment, Defendant shifted his practice to pain management. Id. at 74; Trial Tr., 61, August 15, 2011. Defendant maintained a busy practice. From 2001 through 2007, Defendant worked on Mondays and Wednesdays. Trial Tr., 75, July 20, 2011. Between the years 2005 and 2007, Defendant saw, on average, 80 to 100 patients in one day. Id. at 76. These appointments lasted between two and five minutes. Id. at 77, 141, 169. In March 2007, Defendant moved his pain clinic out of the main orthopedic practice in which he had been practicing. In the new office, Defendant worked four days per week for 3.5 to 4 hours per day. Trial Tr., 71, August 9, 2011. As part of this practice, Defendant prescribed his patients opioids, such as oxycodone and hydrocodone, both of which are regulated by the Controlled Substances Act. 1

A grand jury indicted Defendant on 129 counts, alleging various violations of the Controlled Substances Act. Prior to trial, the Government dismissed 45 counts. Thereafter, the district court held a five-week jury trial on the remaining 84 counts. At the close of the Government's case in chief, Defendant moved for a judgment of acquittal on all counts. The district court denied the motion. Defendant renewed his motion after all the evidence had been presented. The district court took the motion as to counts 1 and 2 under advisement, but otherwise denied the motion. Counts 1 and 2 related to a patient who died, allegedly as a result of the prescriptions listed in the counts. The jury found Defendant guilty on 40 counts, including counts 1 and 2. Three counts were for using a telephone in furtherance of drug distribution, while 37 counts were for unlawfully distributing Schedule II and III controlled substances. The district court subsequently issued a written opinion denying Defendant's motion for judgment of acquittal as to counts 1 and 2.

Defendant then filed this appeal, raising six issues.2 First, Defendant challenges the sufficiency of the evidence supporting the non-death counts. Second, Defendant asserts the district court erred in denying his motion for judgment of acquittal on counts 1 and 2. This argument raises five sub-issues: (1) whether the Government proved the medications were not for a legitimate medical purpose; (2) whether a reasonable juror could find the patient's death resulted from the use of the controlled substances in counts 1 and 2; (3)

[715 F.3d 814]

whether the district court erred in considering an autopsy report as evidence separate and apart from a different medical examiner's testimony; (4) whether reasonable doubt existed that the patient's death resulted from the medications Defendant prescribed; and (5) whether the patient's death was a “reasonably foreseeable” consequence of Defendant's prescriptions and whether the district court properly instructed the jury on reasonable foreseeability. Third, Defendant believes the district court erred in permitting Dr. Stacy Hail, a toxicologist, to offer expert opinion testimony. Fourth, Defendant posits the district court erred in admitting Government Exhibit 133, a compilation of charts showing the annual rankings in Utah of the top ten issuers of hydrocodone and oxycodone prescriptions from 2005 through 2009. Fifth, Defendant argues the district court erred in sentencing Defendant to 20 years imprisonment on count 1. Sixth, and finally, Defendant contends the district court committed plain error when it imposed a general sentence of 240 months as to all the counts. We address each argument in turn.

II.

The Controlled Substances Act prohibits a person from dispensing or distributing a controlled substance.321 U.S.C. § 841(a)(1). But a physician is exempt from this prohibition as long as he is registered and acting as authorized. 21 U.S.C. §§ 802(21), 822(b). For a controlled substance prescription to be effective, the prescription “must be issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice.” 21 C.F.R. § 1306.04(a). Defendant challenges his convictions relating to Michelle Russell, Scott Blanscett, Kade Brown, Billy Ray Cower, Allan Starr, Jennifer Johnson, and Robert Stubblefield. In order to convict Defendant on the applicable counts, namely 4–7, 18–26, 32–35, 41–42, 81–84, 108, 120–121; and 123–124 (the non-death counts),4 the jury had to conclude beyond a reasonable doubt that Defendant knowingly and intentionally prescribed the controlled substances to each of these patients outside the usual course of medical practice or without a legitimate medical purpose.5United States v. Nelson, 383 F.3d 1227, 1232 (10th Cir.2004).

[715 F.3d 815]

In conducting our de novo review, “we must examine whether, viewing the evidence in the light most favorable to the Government, any rational trier of fact could have found the defendant guilty of the crime beyond a reasonable doubt.” United States v. Cooper, 654 F.3d 1104, 1115 (10th Cir.2011) (internal quotation marks omitted). We do not, however, “weigh conflicting evidence or consider witness credibility.” Id. Moreover, “the fact that prosecution and defense witnesses presented conflicting or differing accounts at trial does not necessarily render the evidence insufficient.” Id.

Defendant claims his case is unique because the Government did not charge him with healthcare fraud, conspiracy, or any other crime indicating a scheme by which Defendant sought to gain from unlawful prescribing. Defendant asserts the Government did not contend that every prescription Defendant wrote to the patients listed in the indictment was unlawful. Rather, Defendant believes the Government charged a violation of the Controlled Substances Act based on insufficient details in Defendant's charts for prescribing to a particular patient on a particular day. Defendant posits one doctor's subjective opinion of another's charting practices is not evidence of unlawful prescribing. Alternatively, Defendant contends that if the evidence against him amounted to a criminal violation of the Controlled Substances Act, his due process rights were violated because the statute failed to provide him with notice that his conduct was prohibited. Defendant argues that no other physician has engaged in analogous conduct and been prosecuted. Therefore, he had no way of knowing his conduct would subject him to prosecution. In addition, he asserts the language “outside the usual course of professional medical practice” and “without a legitimate medical purpose” is overly broad and vague.

The Government contends Defendant waived his sufficiency challenge on the non-death counts because of inadequate development of any factual or legal issues. But even if we review the challenge, the Government argues Defendant cannot prevail. The Government cites evidence that Defendant did not take adequate medical histories, failed to conduct physical exams, provided excessive quantities of drugs, and provided prescriptions to patients he never saw. The Government states patient visits were extremely short and consisted of Defendant asking the patient if he or she wanted a refill, with no medical examination or determination that the drugs provided the patient any benefit. The Government states Defendant provided prescriptions to his patients with knowledge that the patient was doctor...

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84 practice notes
  • United States v. Barrett, No. 12–7086.
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • August 19, 2015
    ...1284 n. 5 (10th Cir.2010), especially when the appellant fails to invoke plain error, as is the case here, see United States v. MacKay, 715 F.3d 807, 834 (10th...
  • United States v. Burkholder, No. 13–8094.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • March 4, 2016
    ...we have no occasion to address these matters here.4 We were previously asked to decide this question in United States v. MacKay,715 F.3d 807 (10th Cir.2013) ; however, "because of the posture of [that] case, we d[id] not opine on whether § 841(b)'s language contain[ed] a foreseeability or p......
  • United States v. Gurry, Criminal Action No. 16-cr-10343-ADB
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • November 26, 2019
    ...rather than a medical professional’ " (quoting United States v. Chube II, 538 F.3d 693, 698 (7th Cir. 2008) )); United States v. MacKay, 715 F.3d 807, 813, 839 (10th Cir. 2013) (summarizing proof on § 841 counts as "[t]he Government had to prove Defendant stepped outside his role as a docto......
  • State v. Christensen, DA 18-0268
    • United States
    • Montana United States State Supreme Court of Montana
    • September 16, 2020
    ...124, 96 S. Ct. 335, 337, 46 L.Ed.2d 333 (1975) ; United States v. Larson , 507 F.2d 385, 388 (9th Cir. 1974) ; United States v. MacKay , 715 F.3d 807, 824-25 (10th Cir. 2013). ¶101 Indeed, in enacting Montana's drug legislation, the Montana Legislature has long relied on the CSA for guidanc......
  • Request a trial to view additional results
86 cases
  • United States v. Barrett, No. 12–7086.
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • August 19, 2015
    ...1284 n. 5 (10th Cir.2010), especially when the appellant fails to invoke plain error, as is the case here, see United States v. MacKay, 715 F.3d 807, 834 (10th...
  • United States v. Burkholder, No. 13–8094.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • March 4, 2016
    ...we have no occasion to address these matters here.4 We were previously asked to decide this question in United States v. MacKay,715 F.3d 807 (10th Cir.2013) ; however, "because of the posture of [that] case, we d[id] not opine on whether § 841(b)'s language contain[ed] a foreseeability or p......
  • United States v. Gurry, Criminal Action No. 16-cr-10343-ADB
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • November 26, 2019
    ...rather than a medical professional’ " (quoting United States v. Chube II, 538 F.3d 693, 698 (7th Cir. 2008) )); United States v. MacKay, 715 F.3d 807, 813, 839 (10th Cir. 2013) (summarizing proof on § 841 counts as "[t]he Government had to prove Defendant stepped outside his role as a docto......
  • State v. Christensen, DA 18-0268
    • United States
    • Montana United States State Supreme Court of Montana
    • September 16, 2020
    ...124, 96 S. Ct. 335, 337, 46 L.Ed.2d 333 (1975) ; United States v. Larson , 507 F.2d 385, 388 (9th Cir. 1974) ; United States v. MacKay , 715 F.3d 807, 824-25 (10th Cir. 2013). ¶101 Indeed, in enacting Montana's drug legislation, the Montana Legislature has long relied on the CSA for guidanc......
  • Request a trial to view additional results

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