United States v. Frank Purpera, Jr.

• Court: Court of Appeals for the Fourth Circuit
• Decided: May 30, 2024
• Docket: 20-4544
• Status: Unpublished

Opinion

USCA4 Appeal: 20-4544 Doc: 83 Filed: 05/30/2024 Pg: 1 of 5

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-4543

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

FRANK CRAIG PURPERA, JR.,

Defendant - Appellant.

No. 20-4544

Appeals from the United States District Court for the Western District of Virginia, at Roanoke. Elizabeth Kay Dillon, District Judge. (7:18-cr-00019-EKD-1; 7:19-cr-00016- EKD-1)

Submitted: May 13, 2024 Decided: May 30, 2024 USCA4 Appeal: 20-4544 Doc: 83 Filed: 05/30/2024 Pg: 2 of 5

Before THACKER, HARRIS, and QUATTLEBAUM, Circuit Judges.

Vacated in part, affirmed in part, and remanded by unpublished per curiam opinion.

ON BRIEF: Beau B. Brindley, Blair T. Westover, LAW OFFICES OF BEAU B. BRINDLEY, Chicago, Illinois, for Appellant. Christopher R. Kavanaugh, United States Attorney, Jonathan Jones, Assistant United States Attorney, Roanoke, Virginia, S. Cagle Juhan, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlottesville, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

A jury convicted Frank Craig Purpera, Jr., of 56 counts of distributing controlled

substances outside the scope of professional practice and without a legitimate medical

purpose, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C), (b)(2); two counts of obstruction

of justice, in violation of 18 U.S.C. § 1512(b)(2)(A), (b)(3); conspiracy to commit health

care fraud and falsify information, in violation of 18 U.S.C. §§ 1035, 1347, 1349; and

health care fraud and falsifying information, in violation of 18 U.S.C. §§ 2, 1349. Purpera

appeals, asserting that the district court erred when instructing the jury on the § 841

charges; that the court allowed the Government to introduce prejudicial character evidence;

and that the Government made improper comments during its closing argument. He also

challenges the sufficiency of the evidence supporting his health care fraud conviction. For

the reasons that follow, we vacate in part, affirm in part, and remand.

First, the Government concedes that the jury instructions on the § 841 charges were

erroneous in light of Ruan v. United States, 597 U.S. 450, 457 (2022) and United States v.

Smithers, 92 F.4th 237, 248–52 (4th Cir. 2024). * In Ruan, the Supreme Court added a

scienter element for illegal drug distributions under § 841 by medical professionals. Ruan,

597 U.S. at 457. And in Smithers, we concluded that jury instructions containing a Ruan

error were not harmless when the record contains evidence that could rationally lead to a

contrary finding with respect to the omitted scienter element. Smithers, 92 F.4th at 251.

* The district court did not have the benefit of Ruan or Smithers when it instructed the jury in this case.

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Here, the record contains Appellants’ testimony that he believed there was a legitimate

medical purpose for his prescriptions. A jury could have relied upon Appellants’ testimony

to reach a contrary finding on the scienter element. Accordingly, we vacate Purpera’s 56

convictions for unlawful distribution of controlled substances.

Turning to Purpera’s next two claims, a review of Purpera’s opening brief makes

clear that both his evidentiary challenge and his claim of prosecutorial misconduct relate

only to the now-vacated § 841 convictions. Because Purpera does not argue that these

alleged errors impacted his other four convictions, we decline to consider them. See United

States v. McBride, 676 F.3d 385, 400 (4th Cir. 2012) (assessing impact of evidentiary error

on charge by charge basis); see also United States v. Boyd, 55 F.4th 272, 279 (4th Cir.

2022) (“It is a well settled rule that contentions not raised in the argument section of the

opening brief are abandoned.”) (internal quotation marks omitted).

Next, Purpera contends that the evidence presented at trial was insufficient to

convict him of health care fraud. Though Purpera moved under Fed. R. Crim. P. 29 for a

judgment of acquittal after the Government rested, he neglected to renew his motion

following the jury’s verdict. As a result, Purpera has waived his sufficiency challenge.

United States v. Fall, 955 F.3d 363, 374 (4th Cir. 2020).

Finally, Purpera seeks to bring a prejudicial spillover claim, asserting that the

evidence introduced to support the § 841 convictions unfairly impacted the verdict on his

remaining counts of conviction. See United States v. Hart, 91 F.4th 732, 741 (4th Cir.

2024). Purpera could have broached this issue in his opening brief, yet he declined to raise

it until his second supplemental reply brief. Consequently, we deem this argument waived.

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United States v. Caldwell, 7 F.4th 191, 212 n.16 (4th Cir. 2021) (explaining that, with

limited exceptions, arguments raised for first time in a reply brief are waived); Hunt v.

Nuth, 57 F.3d 1327, 1338 (4th Cir. 1995) (“[A]ppellate courts generally will not address

new arguments raised in a reply brief because it would be unfair to the appellee and would

risk an improvident or ill-advised opinion on the legal issues raised.”)

Accordingly, we vacate Purpera’s 56 convictions for unlawful distribution of

controlled substances and affirm the remaining convictions. In addition, pursuant to the

sentencing package doctrine, see United States v. Ventura, 864 F.3d 301, 309 (4th Cir.

2017), we vacate Purpera’s sentence and remand to the district court for further

proceedings. We dispense with oral argument because the facts and legal contentions are

adequately presented in the materials before this court and argument would not aid the

decisional process.

VACATED IN PART, AFFIRMED IN PART, AND REMANDED