United States v. Tobin

• Decision Date: 12 April 2012
• Docket Number: 09–14009 and 09–14012.,09–13945,Nos. 09–13944,09–13975,s. 09–13944
• Citation: 23 Fla. L. Weekly Fed. C 906,676 F.3d 1264
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Christopher TOBIN, Jude LaCour, Akhil Baranwal, Geunnet Chebssi, James Pickens, Defendants–Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

23 Fla. L. Weekly Fed. C 906

676 F.3d 1264

UNITED STATES of America, Plaintiff–Appellee,

v.Christopher TOBIN, Jude LaCour, Akhil Baranwal, Geunnet Chebssi, James Pickens, Defendants–Appellants.

Nos. 09–13944

09–13945

09–13975

09–14009 and 09–14012.

United States Court of Appeals, Eleventh Circuit.

April 12, 2012.

Michael G. Nichola (Court–Appointed), Robert A. Leventhal, Leventhal & Slaughter, LLP, A. Brian Phillips, Orlando, FL, H. Kyle Fletcher (Court–Appointed), Oviedo, FL, Grady Charles Irvin, Jr., (Court–Appointed), Irvin Law Firm, L.L.C., Tampa, FL, for Defendants–Appellants.

Nina Goodman, U.S. Dept. of Justice, Crim. App. Section, Washington, DC, for Plaintiff–Appellee.

Appeals from the United States District Court for the Middle District of Florida.

Before TJOFLAT, MARTIN and HILL, Circuit Judges.

MARTIN, Circuit Judge:

This prosecution sought to impose criminal liability for the distribution of more than $85 million worth of controlled substances over the Internet from 2002 to 2005. During those years, Jude LaCour owned and directed a company called Jive Network, with various Internet websites to distribute prescription drugs. The government alleged that the websites allowed customers to order controlled substances without submitting any medical records or any prescriptions. The government charged that Christopher Tobin, James Pickens, and Akhil Baranwal, three medical doctors, approved those orders perfunctorily and that Geunnet Chebssi, a pharmacist, dispensed the drugs. Following a jury trial, these defendants were found guilty of multiple charges.

On appeal, all five appellants challenge their convictions. LaCour, Baranwal, and Chebssi also contest their sentences. After careful review of the record and the parties' briefs, and after having had the benefit of oral argument, we affirm the convictions of the five appellants, as well as the sentences of Baranwal and Chebssi. We vacate LaCour's sentence and remand for re-sentencing before a different district judge.

I. FACTS AND PROCEDURAL HISTORY

We recite the facts of this case in the light most favorable to the government. United States v. Augustin, 661 F.3d 1105, 1111 (11th Cir.2011). We will also briefly describe the procedural history.

A. FACTS

From 2002 to 2005, Jude LaCour owned and operated a company called Jive Network, which used various Internet websites, including hundreds of affiliate websites, to sell prescription drugs. On these websites, customers were able to select the type, quantity, and dosage of drugs that they wanted. To place an order, a customer needed only to complete a brief online questionnaire regarding his or her medical history. Customers were not required to submit prescriptions or to provide medical records. Jive Network did not otherwise seek to verify the identity of those who placed the orders.

Jive Network employed physicians to review the orders. The doctors did not conduct a physical examination of the customers or contact the customers' primary care physician. The only information that the doctors used to decide whether to approve an order was the online questionnaire. When reviewing customer orders, the doctors did not have the option of changing the type, quantity, or dosage of drugs selected by the customer. Once a doctor approved an order, Jive Network's computer system generated a prescription that included the doctor's signature. A pharmacist who worked with Jive Network would then fill the prescription and mail the drug to the customer.

From 2002 to 2005, Jive Network sold nearly 5 million Schedule III pills and more than 39 million Schedule IV pills. These Schedule III and IV pills accounted for nearly 80 percent of the drugs sold by Jive Network, and they generated an estimated revenue of more than $85 million over the three-year period. At trial, several witnesses testified that they ordered prescription drugs from the Jive Network websites and that, having become addicted to the substances, they would provide false information about their identity in order to obtain the drugs they wanted.

Christopher Tobin, Akhil Baranwal, and James Pickens were three of the medical doctors who reviewed and approved the Internet orders for controlled substances. Geunnet Chebssi was a pharmacist who, in turn, filled the orders. During his time with Jive Network, Tobin approved more than 40,000 orders for controlled substances. These orders included one that Lisa Price placed in June 2003 in the name of her daughter, Krista Price, for phendimetrazine (charged in Count 3), as well as one placed by Terry Richards in October 2003 in the name of her son, Tim Richards, for phentermine (Count 11). Tobin spent as little as six seconds reviewing individual customer orders.

Baranwal approved more than 61,000 orders. These included one placed by Mary Trerotola for Adipex–P in June 2004 (charged in Count 14), one placed by Kathy Bachand for phentermine in August 2004 (Count 15), as well as one placed by Lisa Price for phendimetrazine in September 2004 (Count 16). Baranwal spent as little as nine seconds reviewing individual customer orders. Pickens approved more than 40,000 orders. These included an order placed by Jamie McCook for Didrex in November 2004 (charged in Count 21). Pickens spent as little as nineteen seconds reviewing individual customer orders. Chebssi filled more than 21,000 prescriptions. These included one for phentermine for Evan Kopald in October 2004 (charged in Count 18).

B. PROCEDURAL HISTORY

On May 8, 2008, a grand jury returned a seventy-three-count indictment against the appellants, as well as six other defendants.¹ On September 17, 2008, a grand jury returned a fifty-three-count superseding indictment against the same defendants. Under Count 1 of the superseding indictment, all five appellants were charged with conspiracy to distribute Schedule III and Schedule IV controlled substances without valid prescriptions in violation of 21 U.S.C. § 846. Under separate counts, the five appellants were also charged with distribution of Schedule III and Schedule IV controlled substances without valid prescriptions in violation of 21 U.S.C. § 841(a)(1).² LaCour was also charged under Count 32 with conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h); under Counts 33–51 with transactional money laundering in violation of 18 U.S.C. § 1957; and under Count 52 with concealment money laundering in violation of 18 U.S.C. § 1956(a)(1)(B)(i). On February 11, 2009, the grand jury returned a fifty-three-count second superseding indictment. This indictment differed from the first superseding indictment in only one respect: in Count 1, which charged the appellants and other defendants with conspiracy to distribute controlled substances without valid prescriptions, the word “willfully” was replaced with the word “intentionally.”

On March 31, 2009, the case went to trial. On April 30, 2009, the jury convicted all five remaining defendants, appellants here, of distribution of controlled substances in violation of 21 U.S.C. § 841(a)(1). LaCour and Tobin were convicted of conspiracy to distribute controlled substances in violation of 21 U.S.C. § 846, but the three other appellants were acquitted on the conspiracy count. Finally, the jury convicted LaCour of all remaining counts with which he was charged: conspiracy to engage in money laundering in violation of 18 U.S.C. § 1956(h), transactional money laundering in violation of 18 U.S.C. § 1957, and concealment money laundering in violation of 18 U.S.C. § 1956(a)(1)(B)(i). About three months later, the District Court sentenced LaCour to 97 months imprisonment; Tobin to 36 months imprisonment; Baranwal to 27 months imprisonment; Pickens to 21 months imprisonment; and Chebssi to 15 months imprisonment. All five appellants timely appealed.

II. STANDARDS OF REVIEW

The appellants raise a multitude of issues on appeal. We review de novo the following questions: whether a statute is unconstitutionally vague, United States v. Duran, 596 F.3d 1283, 1290 (11th Cir.2010); whether the rule of lenity is applicable, see United States v. Murrell, 368 F.3d 1283, 1285 (11th Cir.2004); whether an indictment sufficiently presents the elements of the charged offense, United States v. Dabbs, 134 F.3d 1071, 1079 (11th Cir.1998); whether the district court misstated the law in its jury instructions, United States v. Deleveaux, 205 F.3d 1292, 1296 (11th Cir.2000); whether the evidence is sufficient to support a conviction, United States v. Chirino–Alvarez, 615 F.3d 1344, 1346 (11th Cir.2010); whether a prosecutor engaged in misconduct, United States v. Epps, 613 F.3d 1093, 1100 (11th Cir.2010); and whether a sentence is unconstitutional, United States v. Rozier, 598 F.3d 768, 770 (11th Cir.2010).

In general, we review for abuse of discretion a district court's grant of a motion in limine, United States v. Harrison, 534 F.3d 1371, 1373 (11th Cir.2008); a district court's denial of a motion to subpoena a witness under Federal Rule of Criminal Procedure 17, United States v. Link, 921 F.2d 1523, 1528 (11th Cir.1991); a district court's evidentiary ruling during trial to which an objection is timely made, United States v. Baker, 432 F.3d 1189, 1202 (11th Cir.2005); a district court's limitation on the scope of cross-examination, United States v. Maxwell, 579 F.3d 1282, 1295 (11th Cir.2009); and a district court's refusal to give a requested jury instruction, United States v. Svete, 556 F.3d 1157, 1161 (11th Cir.2009) (en banc). A district court abuses its discretion, however, if it commits an error of law. United States v. Peter, 310 F.3d 709, 711 (11th Cir.2002). We review de novo questions of law. See Murrell, 368 F.3d at 1285.

We review for abuse of discretion a district court's decision to deny a motion to continue or delay a trial, United States v. Graham, 643 F.3d 885, 893 (11th Cir.2011); a district court's decision to deny a motion for severance, United States v. Schlei...