United States v. Purpera, 19-4158

CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)
Writing for the CourtPER CURIAM
PartiesUNITED STATES OF AMERICA, Plaintiff - Appellee, v. FRANK CRAIG PURPERA, JR., Defendant - Appellant.
Docket NumberNo. 19-4158,19-4158
Decision Date05 February 2021

UNITED STATES OF AMERICA, Plaintiff - Appellee,
FRANK CRAIG PURPERA, JR., Defendant - Appellant.

No. 19-4158


Argued: October 30, 2020
February 5, 2021


Appeal from the United States District Court for the Western District of Virginia, at Roanoke. Elizabeth Kay Dillon, District Judge. (7:17-cr-00079-EKD-1)

Before DIAZ, THACKER, and HARRIS, Circuit Judges.

Affirmed by unpublished per curiam opinion. Judge Diaz wrote an opinion concurring in part and dissenting in part.

ARGUED: Blair Tamara Westover, LAW OFFICES OF BEAU B. BRINDLEY, Chicago, Illinois, for Appellant. Laura Day Rottenborn, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee. ON BRIEF: Beau B. Brindley, LAW OFFICES OF BEAU B. BRINDLEY, Chicago, Illinois, for Appellant. Thomas T. Cullen, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.

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Dr. Frank Purpera ("Appellant") is a vascular surgeon who owned a medical practice in Blacksburg, Virginia, and was registered with the Drug Enforcement Administration ("DEA") to administer controlled substances. Between April 21, 2014, and August 4, 2016, Appellant purchased nearly 10,000 tablets of various controlled substances from Henry Schein, Inc., a medical supply distribution company ("Henry Schein"). On December 14, 2017, Appellant was charged with 67 counts of obtaining these controlled substances by fraud, in violation of 21 U.S.C. § 843(a)(3) (Counts 1-68);1 one count of failing to maintain required records related to their disposition, in violation of 21 U.S.C. § 843(a)(4)(A) (Count 69); and one count of making a false statement to a DEA agent investigating Appellant's fraudulent activity, in violation of 18 U.S.C. § 1001(a)(2) (Count 70).

Following trial, a jury found Appellant guilty on all counts. Appellant moved for a judgment of acquittal, which the district court granted with respect to Count 21 but otherwise denied.2 At sentencing, the district court calculated an advisory United States Sentencing Guidelines ("Guidelines") range of six to 12 months and imposed an above-Guidelines sentence of 20 months of imprisonment.

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Appellant now claims that his convictions should be vacated for a multitude of reasons. He asserts (1) his trial counsel labored under a conflict of interest; (2) the district court erroneously refused two of his requested jury instructions; (3) the district court erroneously admitted expert testimony that contained impermissible legal conclusions; and (4) his convictions were not supported by sufficient evidence. Additionally, Appellant contends that his sentence is procedurally and substantively unreasonable. For the reasons that follow, we find each of these claims to be without merit and affirm Appellant's convictions and sentence.


From 2014 to 2016, Appellant purchased thousands of tablets of oxycodone (Percocet), hydrocodone (Lortab), alprazolam (Xanax), diazepam (Valium), and tramadol (Ultram) -- all controlled substances under federal law -- from Henry Schein. Pursuant to the company's policy, before completing these purchases, Appellant was required to submit purchase order forms that contained questions about "the approximate percentage of patients that leave [his] office with controlled substances daily"; "the approximate percentage of patients that are treated in [his] office with controlled substances daily"; and whether he uses "any of the controlled drug items [he] order[s] to treat family members or

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friends."3 J.A. 223-24.4 At trial, the United States introduced evidence demonstrating that the purchase order forms Appellant submitted to Henry Schein contained inaccurate answers to these questions. For example, Appellant stated in his purchase order forms that he did not administer the drugs he purchased from Henry Schein to family members or friends, but in a June 23, 2017 letter to the Virginia Department of Health Professions, Appellant stated that the vast majority of those controlled substances were given to his wife, Rebecca Mosig.

At Appellant's trial, Shaun Abreu, a senior manager for Henry Schein, testified that the company requires prospective purchasers of its controlled substances to submit purchase order forms because the answers to the questions contained in the forms are important to the company when it decides whether or not to sell controlled substances to the prospective purchaser. Abreu explained that Henry Schein's policy is to only sell controlled substances to purchasers who will prescribe and administer them in compliance with all relevant "state medical board regulations," and the answers to the questions contained in the purchase order forms help the company determine if a potential purchaser will do so. J.A. 307. Abreu also testified that the purchase order forms must be "filled out

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and signed by" a party who is registered to administer controlled substances with the DEA. Id. at 306.


Appellant first caught the attention of federal law enforcement in August 2016, when a DEA database revealed that he purchased more controlled substances than any other physician in western Virginia in 2015, and more than all but one in 2016. Further red flags were raised when the database revealed that, although Appellant purchased this high volume of controlled substances, he only prescribed them to two individuals: his wife and his mother.

The DEA's investigation of Appellant began in earnest on August 26, 2016, when DEA Investigator Mark Armstrong visited Appellant's office and questioned him about his purchase of oxycodone, alprazolam, and diazepam from Henry Schein. According to Investigator Armstrong's trial testimony, he asked Appellant if he maintained records related to the disposition of those drugs, and Appellant responded that he maintained such records in two different places: "in his patient file[s]," and in a separate "dispensing kind of log." J.A. 179. But when Investigator Armstrong then asked to review those records, Appellant quickly admitted "there wasn't a dispensing log." Id. A subsequent search warrant executed at Appellant's office revealed that there were no records in Appellant's patient files related to any of the drugs that he purchased from Henry Schein.


Grand jury proceedings began in December 2017, and Kayla Castleberry, a former employee of Appellant, was called to testify. The day before her scheduled testimony,

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Castleberry received text messages from Carla Craft, a then-current employee of Appellant who was also subpoenaed to testify before the grand jury. Throughout the text message exchange, Craft discouraged Castleberry from testifying before the grand jury without first securing legal representation. In one text, Craft wrote, "John is spazzing about you going alone tomorrow," and explained, "John is like freaked out that you're walking into a lions [sic] den." United States' Resp. in Opp'n to Def.'s Renewed Mot. to Dismiss Indictment for Prosecutorial Misconduct at 5, United States v. Purpera, No. 7:17-cr-79 (W.D. Va. Dec. 14, 2017; filed Jan. 26, 2018), ECF No. 88-1 [hereinafter United States' Resp. in Opp'n to Mot. to Dismiss Indictment]. Castleberry provided screenshots of these text messages to Robert Slease, a Special Agent with the United States Department of Health and Human Services who was working with the DEA task force investigating Appellant. Agent Slease interviewed Castleberry about the text messages. Castleberry said the conversation made her feel like she was "kind of being forced or coerced" to not testify. J.A. 56. Agent Slease suspected that John Brownlee, Appellant's lead trial counsel, was the "John" alluded to in Craft and Castleberry's text exchange. One week later, the DEA issued an administrative subpoena for the phone records related to the text message exchange. One of the phone numbers included in the subpoena belonged to Brownlee.

Upon learning of the DEA's administrative subpoena of his lead counsel's phone records, Appellant moved to dismiss the indictment, alleging prosecutorial misconduct and that the subpoena was an intentional and prejudicial invasion of the attorney-client privilege. The United States responded that there was no prosecutorial misconduct because the Government had subpoenaed the phone records not to learn the substance of

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confidential attorney-client communications, but rather for the "very limited and legitimate purposes arising from the need to determine whether [Brownlee] was contacting a subpoenaed witness and encouraging her not to testify." United States' Resp. in Opp'n to Mot. to Dismiss Indictment at 1, ECF No. 88.5 Appellant dismissed this explanation, asserting, "[T]here was no bona fide investigation into Mr. Brownlee." Dr. Frank Purpera's Reply in Supp. of His Renewed Mot. to Dismiss at 1-6, United States v. Purpera, No. 7:17-cr-79 (W.D. Va. Dec. 14, 2017; filed Jan. 27, 2018), ECF No. 92 [hereinafter Appellant's Reply in Supp. of Mot. to Dismiss Indictment]. On January 29, 2018, the district court held a pre-trial hearing on Appellant's motion to dismiss the indictment. The court ultimately denied the motion, finding no Government misconduct and no prejudice to Appellant. Appellant does not appeal this ruling, but now claims, through different counsel, that the DEA's investigation into Brownlee created a conflict of interest.

Conflict of Interest

Appellant claims his representation at trial was tainted by a conflict of interest stemming from the fact that his prosecution paralleled the DEA's investigation of his lead trial counsel, Brownlee. The United States concedes that these circumstances caused

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Brownlee to labor under a conflict of interest. However, the parties dispute whether Appellant validly waived the conflict and, if not, whether it was sufficiently significant as to warrant the...

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