United States v. Mencia
| Decision Date | 30 November 2022 |
| Docket Number | 18-13967 |
| Parties | UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ANDRES MENCIA, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
DO NOT PUBLISH
Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 0:17-cr-60301-WPD-1 Before GRANT and BRASHER, Circuit Judges.[1]
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
This appeal returns to us on remand from the Supreme Court of the United States. After we affirmed Andres Mencia's conviction for conspiracy to violate the Controlled Substances Act, 21 U.S.C. § 841(a), by dispensing controlled substances without a legitimate medical purpose in violation of 21 U.S.C. § 846, United States v Mencia, 861 Fed.Appx. 736, 739 (11th Cir. 2021), the Supreme Court issued its decision in Ruan v. United States, 597 U.S. ___, 142 S.Ct. 2370, 2374 (2022). The Court granted Mencia's petition for certiorari, vacated our judgment, and remanded his appeal for further consideration in light of Ruan. See United States v. Mencia, 142 S.Ct. 2897 (2022).
Mencia a formerly licensed physician, owned and operated a geriatric specialty clinic where many patients, often younger and addicted to drugs, would pay cash in exchange for narcotic prescriptions. Mencia argues that (1) there was insufficient evidence to support his conviction, (2) the district court abused its discretion in making certain evidentiary rulings (3) the Controlled Substances Act is unconstitutionally vague as applied to physicians, and (4) the instructions provided to the jury constitute reversible error under the Supreme Court's holding in Ruan.[2] We disagree. The government presented overwhelming evidence of Mencia's guilt, the district court did not abuse its discretion, this Court has already held that the Act is not unconstitutional as applied to physicians, and the jury instructions do not constitute reversible error, even in light of Ruan. Accordingly, we affirm.
Andres Mencia, a formerly licensed physician, owned and practiced at Adult &Geriatric Institute of Florida, Inc., in Oakland Park, Florida. Although AGI was not a pain clinic and Mencia was not a pain specialist, a significant amount of his business came from prescribing opioids and other controlled substances to certain patients who paid in cash. Mencia called those individuals "Code-G" patients, with the "G" standing for "gypsy," because they did not have insurance. Even though other patients also paid in cash, Code-G patients never paid at the checkout counter. Instead, Mencia assigned certain medical assistants to collect their payments. Mencia often prescribed these Code-G patients a combination of Percocet, Xanax, and Soma, which one of the government's experts, Dr. Sanford Silverman, described as the "holy trinity"-a trio consisting of an opioid, benzodiazepine, and a muscle relaxant that drug-seeking patients often request.
Between January 1, 2014, and May 31, 2018, Mencia wrote 45,000 controlled substance prescriptions. Around one-third of those prescriptions were for patients who paid in cash. Those patients who were covered by Medicare or commercial insurance often received more prescriptions than just the "holy trinity"; they would also receive Dilaudid, Oxycontin, or amphetamines. And Mencia consistently prescribed the highest possible dose strength of controlled substances, including oxycodone and Xanax.
One patient, JH, returned monthly for controlled substance prescriptions after Mencia initially diagnosed him with back pain without an examination. JH's girlfriend and grandmother each called the front desk at AGI to inform them that JH was an opioid addict, but Mencia continued to prescribe him oxycodone and Soma. In fact, Mencia continually increased JH's doses and even gave him refills when JH claimed that his prescriptions had been stolen. JH eventually fatally overdosed on oxycodone and Xanax.
Oscar Luis Ventura-Rodriguez, one of Mencia's medical assistants, testified that when he first started at AGI, Mencia would spend some time with Code-G patients and then Ventura-Rodriguez would write them prescriptions, which Mencia would sign. The majority of those prescriptions were for Percocet. But Mencia never physically examined those patients, and the consultations usually only lasted around ten minutes.
Over time, the number of Code-G patients increased, and Mencia stopped entering the room at all when returning patients came in. Instead, medical assistants would look up what prescriptions the patients had previously been given, fill the prescriptions out the same way as before, then take them to Mencia to sign. The patients would receive those controlled substance prescriptions without an examination and without any physician reviewing whether the medications were medically necessary.
The price that AGI charged Code-G patients also increased over time. And Mencia instructed his assistants to get those patients out of the waiting room as soon as they arrived. Although Mencia instructed his medical assistants to ask Code-G patients for MRIs, not having one did not affect their ability to get a prescription for controlled substances.
Ventura-Rodriguez testified that, as the number of Code-G patients increased, Mencia began instructing him and other assistants on which medications and how many pills to prescribe before patients ever arrived. At that point, Ventura-Rodriguez began to suspect that many Code-G patients were not truly in pain. He shared that suspicion with Mencia, but Mencia continued to sign the controlled substance prescriptions. Eventually, Mencia did not even enter the room to see new Code-G patients.
Mencia also instructed the assistants on how to write the charts to justify the prescriptions that he was signing for the new Code-G patients. He instructed them to note the level of a patient's pain, not based on a consultation with the patient, but based on the level necessary to prescribe the drugs that Mencia had instructed them to give. Toward the end of this operation, Mencia would pre-sign blank prescriptions so that the medical assistants did not even have to bring them to him to sign. The government entered into evidence several text messages between Mencia and Ventura-Rodriguez that confirmed his testimony that Mencia had provided him with pre-signed prescriptions and had allowed him to write prescriptions before the date that another prescription was legally permitted.
To help with his increasing patient load, Mencia contracted with a pain clinic in 2014 to hire Dr. Gabriel Marrero, a pain management specialist, to work one day per week at AGI. Marrero quickly became concerned that many of AGI's patients were not interested in interventional pain, which was his specialty, and only cared about acquiring controlled substances. He also noticed that urine tests, MRIs, and x-rays were missing from patient files. He brought his concerns to Mencia's attention, and Mencia agreed that these issues needed to be addressed. But Marrero continued to see the same issues in patient files, which led him to discharge those patients. Unbeknownst to Marrero, Mencia would often take those patients back.
Mencia took back one such patient after Marrero had discharged him for failing a urine test. That patient testified to having a drug addiction and to selling his prescriptions to buy more heroin. When he asked Mencia for larger quantities of the pills because his tolerance had increased, Mencia complied for all but one medication, saying that he had to "stay under the radar."
The beginning of the end for Mencia came when Dr. Abby Goldstein, a pharmacist at Publix Pharmacy, became concerned about the large number of oxycodone prescriptions that Code-G patients were bringing to the pharmacy. Dr. Goldstein informed the DEA about her concerns, telling them that Mencia "might be overprescribing certain medications," including opioids. Dr. Goldstein testified that Mencia's prescriptions stood out because "[n]inety-five percent of them were for a large quantity immediate-release narcotics," particularly Percocet and oxycodone. Even though "a lot" of physicians were listed on the prescriptions from Mencia's office, she only received prescriptions from Mencia. She was also concerned because, when she called AGI for the diagnosis codes for these prescriptions, she was told the same diagnosis for most patients. And when she looked Mencia up on the Board of Health license verification website, she discovered that he was not specially certified in pain management despite the large number of pain medications that he was prescribing. Due to her growing concerns, Dr. Goldstein refused to fill approximately eighty percent of Mencia's prescriptions for narcotics.
Also, as a result of Dr. Goldstein's concerns, the government sent confidential informants into AGI to pretend that they were in pain and attempt to obtain controlled substance prescriptions. In the videos captured by those informants, medical assistants can be seen prescribing controlled substances on pre-signed prescription pads without Mencia ever entering the room or seeing the patients. The videos also show the patients paying in cash and sometimes "tipping" the assistants. The assistants would then pocket that cash. Ventura-Rodriguez testified, however, that he would later give that cash to someone else.
Mencia was originally indicted along with three members of his office staff, Ventura-Rodriguez, Nadira Sampath-Grant, and John Mensah, for conspiracy to commit health care fraud and wire fraud and conspiracy to dispense controlled substances. Ventura-Rodriguez, Sampath-Grant, and Mensah each subsequently entered into plea...
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