USCA11 Case: 19-14235 Date Filed: 02/05/2021 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-14235 Non-Argument Calendar ________________________
D.C. Docket No. 1:16-cr-00442-ELR-JSA-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARNITA AVERY-KELLY,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Northern District of Georgia ________________________
(February 5, 2021)
Before LAGOA, BRASHER, and EDMONDSON, Circuit Judges. USCA11 Case: 19-14235 Date Filed: 02/05/2021 Page: 2 of 7
PER CURIAM:
Arnita Avery-Kelly appeals her convictions for distributing and dispensing
controlled substances outside the scope of her podiatry practice: a violation of 21
U.S.C. §§ 841(a)(1), (b)(1)(C). No reversible error has been shown; we affirm.
In 2018, a federal grand jury charged Avery-Kelly with 61 counts of
prescribing controlled substances outside the scope of her professional practice and
for no legitimate medical purpose.
Before trial, Avery-Kelly proposed several non-pattern jury instructions.
Pertinent to this appeal, Avery-Kelly requested a jury instruction about Georgia’s
Prescription Drug Monitoring Program (“PDMP”) 1 (Proposed Instruction #15).
Proposed Instruction #15 consisted of the full text of two rules of the Georgia
Composite Medical Board: Ga. Comp. R. & Regs. R. 360-38-.04 and 360-38-.05.
Briefly stated, these rules require (from 1 July 2018) prescribers to check the
PDMP before prescribing a controlled substance and also provide that failure to
comply with the Board’s rules and regulations may result in discipline.
The government objected to Avery-Kelly’s proposed jury instructions. The
government argued that Proposed Instruction #15 was irrelevant and that -- as a
1 The PDMP is an electronic database used to track and monitor prescriptions for controlled substances. 2 USCA11 Case: 19-14235 Date Filed: 02/05/2021 Page: 3 of 7
podiatrist and not a medical doctor -- Avery-Kelly was not governed by the cited
PDMP rules.
After hearing arguments from both parties about the requested jury
instructions, the district court declined to give Avery-Kelly’s Proposed Instruction
#15. The district court did give these instructions about the prescription of
controlled substances:
A controlled substance is lawfully prescribed by a practitioner if he or she prescribed the controlled substance as part of his or her medical treatment of a patient in accordance with the standards of professional practice generally recognized and accepted in the State of Georgia. The terms legitimate medical purpose and usual course of professional practice refer to the standard of professional practice and treatment generally recognized and accepted in the State of Georgia. To determine these standards, you may consider the totality of the circumstances, including evidence of the accepted standard of professional practice in effect at the time, and expert testimony. A podiatrist who prescribes a controlled substance for a patient in compliance with the accepted standard of podiatric practice in the State of Georgia is not committing a crime. Rather, a podiatrist has violated section 841(a)(1) when the government proves beyond a reasonable doubt that the podiatrist’s actions were without a legitimate medical purpose or were outside the usual course of professional practice.
During deliberations, the jury asked several questions, including two
questions about the PDMP: “When were PDMP reports first available in Georgia?”
and “When was it required [for a doctor/provider] to read them?” After consulting
3 USCA11 Case: 19-14235 Date Filed: 02/05/2021 Page: 4 of 7
the parties -- and without objection -- the district court responded to the jury’s
questions this way:
I need to explain to you how the questions work. When we said evidence was closed, that means that substantive questions like this can no longer be answered, because we’re not witnesses. We’re not under oath. So we can’t just submit an answer to you. And we certainly are not in a position of calling back any witnesses to answer questions like this.
So, basically, you are permitted to ask questions. . . . But those are more along the lines of clarifications or things like that, but not for additional evidence, because the evidence at this time is closed. The following morning, Avery-Kelly objected to the district court’s response
and asserted that Proposed Instruction #15 should be issued in the light of the
jury’s questions about the PDMP. The district court denied Avery-Kelly’s request.
The jury found Avery-Kelly guilty on Counts 24 to 32 and 44 to 61. The
district court declared a mistrial on the remaining counts and dismissed them.
Avery-Kelly was sentenced to a total sentence of 120 months followed by 3 years
of supervised release.
On appeal, Avery-Kelly contends that the district court erred in refusing to
issue Proposed Instruction #15 in the initial jury charge and in response to the
jury’s questions.
“We review a district court’s refusal to give a requested jury instruction for
abuse of discretion.” United States v. Martinelli, 454 F.3d 1300, 1309 (11th Cir.
4 USCA11 Case: 19-14235 Date Filed: 02/05/2021 Page: 5 of 7
2006). The refusal to give a requested jury instruction constitutes reversible error
if “(1) the requested instruction was a correct statement of law, (2) its subject
matter was not substantially covered by other instructions, and (3) its subject
matter dealt with an issue in the trial court that was so important that failure to give
it seriously impaired the defendant’s ability to defend himself.” Id.
We also review a district court’s response to a jury question under an abuse-
of-discretion standard. See United States v. Joyner, 882 F.3d 1369, 1375 (11th Cir.
2018). The district court has “considerable discretion” in answering a jury
question so long as the answer does not misstate the law or confuse the jury. Id.
The district court abused no discretion in refusing to give Proposed
Instruction #15 during the initial jury charge. First, the rules of the Georgia
Composite Medical Board -- including the rules pertaining to the PDMP -- have no
clear application to podiatrists. The Georgia Composite Medical Board has
authority over medical professionals regulated under Title 43, Chapter 34 of the
Georgia Code. See O.C.G.A. § 43-34-8. The practice of podiatry, meanwhile, is
regulated by Title 43, Chapter 35: the Georgia Podiatry Practice Act. See
O.C.G.A. § 43-35-1 et seq. And Georgia podiatrists are governed by the rules of
the Georgia Board of Podiatry Examiners, which has promulgated no rules about
the PDMP. See O.C.G.A. § 43-35-9; Ga. Comp. R & Regs. 500-1 to -9.
5 USCA11 Case: 19-14235 Date Filed: 02/05/2021 Page: 6 of 7
Moreover, Avery-Kelly has failed to show that Proposed Instruction #15 was
crucial to her defense.
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USCA11 Case: 19-14235 Date Filed: 02/05/2021 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-14235 Non-Argument Calendar ________________________
D.C. Docket No. 1:16-cr-00442-ELR-JSA-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARNITA AVERY-KELLY,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Northern District of Georgia ________________________
(February 5, 2021)
Before LAGOA, BRASHER, and EDMONDSON, Circuit Judges. USCA11 Case: 19-14235 Date Filed: 02/05/2021 Page: 2 of 7
PER CURIAM:
Arnita Avery-Kelly appeals her convictions for distributing and dispensing
controlled substances outside the scope of her podiatry practice: a violation of 21
U.S.C. §§ 841(a)(1), (b)(1)(C). No reversible error has been shown; we affirm.
In 2018, a federal grand jury charged Avery-Kelly with 61 counts of
prescribing controlled substances outside the scope of her professional practice and
for no legitimate medical purpose.
Before trial, Avery-Kelly proposed several non-pattern jury instructions.
Pertinent to this appeal, Avery-Kelly requested a jury instruction about Georgia’s
Prescription Drug Monitoring Program (“PDMP”) 1 (Proposed Instruction #15).
Proposed Instruction #15 consisted of the full text of two rules of the Georgia
Composite Medical Board: Ga. Comp. R. & Regs. R. 360-38-.04 and 360-38-.05.
Briefly stated, these rules require (from 1 July 2018) prescribers to check the
PDMP before prescribing a controlled substance and also provide that failure to
comply with the Board’s rules and regulations may result in discipline.
The government objected to Avery-Kelly’s proposed jury instructions. The
government argued that Proposed Instruction #15 was irrelevant and that -- as a
1 The PDMP is an electronic database used to track and monitor prescriptions for controlled substances. 2 USCA11 Case: 19-14235 Date Filed: 02/05/2021 Page: 3 of 7
podiatrist and not a medical doctor -- Avery-Kelly was not governed by the cited
PDMP rules.
After hearing arguments from both parties about the requested jury
instructions, the district court declined to give Avery-Kelly’s Proposed Instruction
#15. The district court did give these instructions about the prescription of
controlled substances:
A controlled substance is lawfully prescribed by a practitioner if he or she prescribed the controlled substance as part of his or her medical treatment of a patient in accordance with the standards of professional practice generally recognized and accepted in the State of Georgia. The terms legitimate medical purpose and usual course of professional practice refer to the standard of professional practice and treatment generally recognized and accepted in the State of Georgia. To determine these standards, you may consider the totality of the circumstances, including evidence of the accepted standard of professional practice in effect at the time, and expert testimony. A podiatrist who prescribes a controlled substance for a patient in compliance with the accepted standard of podiatric practice in the State of Georgia is not committing a crime. Rather, a podiatrist has violated section 841(a)(1) when the government proves beyond a reasonable doubt that the podiatrist’s actions were without a legitimate medical purpose or were outside the usual course of professional practice.
During deliberations, the jury asked several questions, including two
questions about the PDMP: “When were PDMP reports first available in Georgia?”
and “When was it required [for a doctor/provider] to read them?” After consulting
3 USCA11 Case: 19-14235 Date Filed: 02/05/2021 Page: 4 of 7
the parties -- and without objection -- the district court responded to the jury’s
questions this way:
I need to explain to you how the questions work. When we said evidence was closed, that means that substantive questions like this can no longer be answered, because we’re not witnesses. We’re not under oath. So we can’t just submit an answer to you. And we certainly are not in a position of calling back any witnesses to answer questions like this.
So, basically, you are permitted to ask questions. . . . But those are more along the lines of clarifications or things like that, but not for additional evidence, because the evidence at this time is closed. The following morning, Avery-Kelly objected to the district court’s response
and asserted that Proposed Instruction #15 should be issued in the light of the
jury’s questions about the PDMP. The district court denied Avery-Kelly’s request.
The jury found Avery-Kelly guilty on Counts 24 to 32 and 44 to 61. The
district court declared a mistrial on the remaining counts and dismissed them.
Avery-Kelly was sentenced to a total sentence of 120 months followed by 3 years
of supervised release.
On appeal, Avery-Kelly contends that the district court erred in refusing to
issue Proposed Instruction #15 in the initial jury charge and in response to the
jury’s questions.
“We review a district court’s refusal to give a requested jury instruction for
abuse of discretion.” United States v. Martinelli, 454 F.3d 1300, 1309 (11th Cir.
4 USCA11 Case: 19-14235 Date Filed: 02/05/2021 Page: 5 of 7
2006). The refusal to give a requested jury instruction constitutes reversible error
if “(1) the requested instruction was a correct statement of law, (2) its subject
matter was not substantially covered by other instructions, and (3) its subject
matter dealt with an issue in the trial court that was so important that failure to give
it seriously impaired the defendant’s ability to defend himself.” Id.
We also review a district court’s response to a jury question under an abuse-
of-discretion standard. See United States v. Joyner, 882 F.3d 1369, 1375 (11th Cir.
2018). The district court has “considerable discretion” in answering a jury
question so long as the answer does not misstate the law or confuse the jury. Id.
The district court abused no discretion in refusing to give Proposed
Instruction #15 during the initial jury charge. First, the rules of the Georgia
Composite Medical Board -- including the rules pertaining to the PDMP -- have no
clear application to podiatrists. The Georgia Composite Medical Board has
authority over medical professionals regulated under Title 43, Chapter 34 of the
Georgia Code. See O.C.G.A. § 43-34-8. The practice of podiatry, meanwhile, is
regulated by Title 43, Chapter 35: the Georgia Podiatry Practice Act. See
O.C.G.A. § 43-35-1 et seq. And Georgia podiatrists are governed by the rules of
the Georgia Board of Podiatry Examiners, which has promulgated no rules about
the PDMP. See O.C.G.A. § 43-35-9; Ga. Comp. R & Regs. 500-1 to -9.
5 USCA11 Case: 19-14235 Date Filed: 02/05/2021 Page: 6 of 7
Moreover, Avery-Kelly has failed to show that Proposed Instruction #15 was
crucial to her defense. Never was Avery-Kelly charged with violating the rules
governing the PDMP. To the extent Avery-Kelly sought to establish that
consulting the PDMP was not mandatory at the time of the charged offenses, the
record already contained testimony that -- before July 2018 -- doctors were not
required to check the PDMP before prescribing a controlled substance.
We also see no abuse of discretion in the district court’s response to the jury
questions about the PDMP.2 “When a jury requests supplemental instruction, a
district court should answer within the specific limits of the question presented and
resolve the jury’s difficulties with concrete accuracy.” See Joyner, 882 F.3d at
1375 (quotations omitted).
Had the district court issued Proposed Instruction #15 in response to the
jury’s questions, it would have (1) provided no answer to the jury’s question about
when PDMP reports were first available and (2) provided information extraneous
to the question about when providers were first required to consult the PDMP.
Moreover, because the rules recited in the proposed instruction had no direct
application to Avery-Kelly’s case, issuing that instruction would more likely have
2 On appeal, the government argues that this issue should be reviewed only for plain error because Avery-Kelly failed to raise a contemporaneous objection. Because we conclude that Avery-Kelly’s argument fails under an abuse-of-discretion standard, we need not address the sufficiency of Avery-Kelly’s next-day objection. 6 USCA11 Case: 19-14235 Date Filed: 02/05/2021 Page: 7 of 7
caused confusion rather than resolving the jury’s questions “with concrete
accuracy.”
AFFIRMED.3
3 On appeal, Avery-Kelly contends -- based on purported post-verdict comments made by some jurors -- that the jury convicted her improperly based on a misunderstanding of the requirements to check the PDMP. Under the no-impeachment rule, we will not consider these alleged comments. For background, see Fed. R. Evid. 606(b)(1) (after a verdict is returned, a juror may not testify about -- and the count may not receive evidence of -- “any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment.”); United States v. Brown, 934 F.3d 1278, 1302 (11th Cir. 2019) (discussing the “no-impeachment rule” as reflected in Rule 606(b)). 7