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Miller V. United States of America

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Miller V. United States of America IN THE SUPREME COURT OF THE UNITED STATES Miller v. United States of America On Petition for Writ of Certiorari to the United States Court of appeal for the Tenth Circuit ATTACHMENT A United States v. Miller, 891 F.3d 1220 (2018) 106 Fed. R. Evid. Serv. 723 Attorneys and Law Firms 891 F.3d 1220 United States Court of Appeals, Tenth Circuit. John C. Arceci, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, with him on UNITED STATES of America, Plaintiff–Appellee, the brief), Denver, Colorado, for Defendant–Appellant. v. Joel E. MILLER, a/k/a Joel Edward J. Bishop Grewell, Assistant United States Attorney Miller, Defendant–Appellant. (Robert C. Troyer, Acting United States Attorney, with him on the brief), Denver, Colorado, for Plaintiff– No. 16-1231 Appellee. | FILED June 6, 2018 Before McHUGH, McKAY, and KELLY, Circuit Judges. Synopsis Background: Defendant, a former doctor, was convicted Opinion of distributing controlled substance and making false McKAY, Circuit Judge. statement to Drug Enforcement Administration. The United States District Court for the District of Colorado, Defendant Joel Miller, a former small-town doctor, was No. 1:13–CR–00354–REB–1, Robert E. Blackburn, J., charged with numerous counts of health-care fraud, 2016 WL 1426918, denied defendant's motion for new money laundering, and distributing a controlled substance trial. Defendant appealed. outside the usual course of professional treatment, as well as one count of making a false statement in an application he submitted to the Drug Enforcement Administration. Holdings: The Court of Appeals, McKay, Circuit Judge, The jury acquitted him on all of the financial charges as held that: well as several of the drug-distribution charges, but found him guilty on seven counts of distributing a controlled district court did not abuse its discretion in admitting substance in violation of 21 U.S.C. § 841(a) and one testimony from prosecution's medical expert; count of making a false statement to the DEA in violation of 21 U.S.C. § 843(1)(4)(A). The district court granted any error in charging multiple controlled substances in Defendant’s post-judgment motion for acquittal on one same count based on individual medical visit was cured by of the controlled-substances counts based on an error in district court's unanimity instruction; the indictment. The court then sentenced him to forty-one months of imprisonment on the six remaining distribution government's constructive amendment of indictment, with counts, plus a consecutive sentence of nineteen months respect to false statement charge, constituted plain error; on the false-statement count, for a total sentence of and sixty months of imprisonment. Defendant appeals his convictions and sentence. defendant's statement on DEA application that his medical license had never been suspended was false as On appeal, Defendant argues that (1) the government matter of law. medical expert’s testimony was not the product of reliable principles reliably applied to the facts of this case and accordingly should have been excluded under Rule Affirmed in part, reversed in part, and remanded. 702; (2) the indictment was duplicitous on four of the six controlled-substances counts because each of these four counts included at least two different controlled *1225 APPEAL FROM THE UNITED STATES substances that were prescribed on the same date to the DISTRICT COURT FOR THE DISTRICT OF same patient; (3) the trial evidence, jury instructions, and COLORADO (D.C. No. 1:13–CR–00354–REB–1) prosecutor’s closing argument constructively amended the indictment on the false-statement count; (4) the false- A1 © 2018 Thomson Reuters. No claim to original U.S. Government Works. 1 United States v. Miller, 891 F.3d 1220 (2018) 106 Fed. R. Evid. Serv. 723 statement count should not have been submitted to the judgment or exceeded the bounds of permissible choice in jury because the statement at issue was not false as a the circumstances.” United States v. Chapman, 839 F.3d matter of law; and (5) the sentence was procedurally 1232, 1237 (10th Cir. 2016) (internal quotation marks unreasonable. omitted). Before addressing the merits of any of these arguments, The government’s medical expert, Dr. Theodore Parran, we first pause to explain the legal backdrop behind was indisputably qualified to testify as an expert. Defendant’s controlled-substance convictions. Under § Dr. Parran’s training and experience included not 841(a)(1), it is “unlawful for any person knowingly or only practicing medicine for many years, but also intentionally” to dispense a controlled substance “[e]xcept teaching residency programs relating to pain and pain as authorized by this subchapter.” Medical practitioners management, directing an addiction-medicine training are authorized to dispense *1226 non-schedule I drugs program, directing a doctoring course for first- and pursuant to 21 U.S.C. § 829(a) and (b). However, in order second-year medical students at a medical school in for a medical practitioners’s prescription of controlled Cleveland, directing a continuing medical education substances to be considered a lawful prescription under § program, and conducting clinical work at an outpatient 829, it “must be issued for a legitimate medical purpose methadone clinic and various other facilities. Defendant by an individual practitioner acting in the usual course of does not dispute Dr. Parran’s qualifications; he only his professional practice.” 21 C.F.R. § 1306.04(a). “When disputes the substance of his testimony. this limited statutory authority is exceeded, the criminal sanctions of § 841 apply.” United States v. Fellman, Dr. Parran testified that he had reviewed several of 549 F.2d 181, 182 (10th Cir. 1977). Thus, a medical Defendant’s medical files and concluded, based on practitioner who prescribes controlled substances may be his training and experience, that Defendant’s drug convicted of illegal distribution or dispensing under § 841 prescriptions relating to each of the counts of the “if he acts without a legitimate medical purpose or outside indictment were outside the scope of usual professional the usual course of professional practice.” United States v. practice and not for a legitimate medical purpose. Dr. Nelson, 383 F.3d 1227, 1233 (10th Cir. 2004). Parran testified, for instance, that Defendant would “not uncommonly” increase dosages of narcotics for patients To help the jury decide whether this standard for criminal whose condition was described as “stable,” with no liability has been met, “[e]xpert testimony from medical indication in the records as to why the dosage *1227 was practitioners is of course admissible.” United States v. being increased, contrary to the typical medical practice. Bartee, 479 F.2d 484, 488 (10th Cir. 1973). “However, (R. Vol. IX at 1144.) Dr. Parran testified that Defendant the jury is not bound by such expert testimony and may failed to document the types of basic physical exams, of course consider all of the facts and circumstances medical histories, and requests for patients’ past medical surrounding the prescribing as related by lay witnesses.” records that even medical students would know to do “as Id. The jury is “free to sort out all the competing proof: part of the routine course ... of medical practice.” (Id. at the question [of] what constitutes usual medical practice 1146.) With respect to one patient, he testified: “Anyone remain[s], at all times, within its province.” United States who knows anything about opiate pharmacology and v. Lovern, 590 F.3d 1095, 1100 (10th Cir. 2009). 1 about how to evaluate a patient for the presence or absence of tolerance to the life-threatening effects of With this legal backdrop in mind, we first consider opiates knows that before seeing a patient, that [there Defendant’s challenge to the admission of testimony are certain] things that have to be done, and ... they from the government’s medical expert. “The admission of were not done here.” (Id. at 1372.) Moreover, Defendant expert testimony is within the discretion of the trial court continued prescribing narcotics to patients despite the and will be overturned on appeal only when a clear abuse presence of clear red flags of drug abuse, such as regular of discretion has occurred.” United States v. Varma, 691 requests for early refills and concerned phone calls from F.2d 460, 463 (10th Cir. 1982). “The district court abuses family members or from pharmacists who refused to its discretion if the court’s decision is arbitrary, capricious, fill any more narcotic prescriptions for a particular whimsical or manifestly unreasonable, or when we are patient because the patient was so clearly overmedicated. convinced that the district court made a clear error of He prescribed controlled substances when there were A2 © 2018 Thomson Reuters. No claim to original U.S. Government Works. 2 United States v. Miller, 891 F.3d 1220 (2018) 106 Fed. R. Evid. Serv. 723 contraindications against use, such as pregnancy or We are not persuaded that the district court abused its respiratory ailments, and he prescribed multiple drugs discretion by admitting Dr. Parran’s testimony. Although that were dangerous in combination. He “relentlessly “the standard for criminal liability under *1228 § 841(a) continued” prescribing controlled substances to a patient requires more than proof of a doctor’s intentional failure who had been admitted to the hospital with an overdose. to adhere to the standard of care,” United States v. (Id. at 1250.) Dr. Parran testified that, based on these Feingold, 454 F.3d 1001, 1011 (9th Cir. 2006), this does and similar deficiencies in Defendant’s approach to and not mean that an expert at a criminal trial must also treatment of his drug-seeking patients, it was his expert propound on the similarities and differences between the opinion that Defendant’s conduct was outside the course criminal standard and inapplicable civil standards in order of usual medical practice and not for a legitimate medical to provide reliable testimony on the relevant criminal purpose.
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