United States v. Jack Kelly Joseph

• Court: Court of Appeals for the Eleventh Circuit
• Decided: February 21, 2013
• Docket: 09-11984
• Status: Published

Opinion

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT US COURT OF APPEALS ________________________ ELEVENTH CIRCUIT

No. 09-11984 FEBRUARY 21, 2013 ________________________ JOHN LEY CLERK D. C. Docket No. 07-00002-CR-004-CAR-5

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JACK KELLY JOSEPH, DOROTHY MACK, SPURGEON GREEN, JR.,

Defendants-Appellants.

________________________

Appeals from the United States District Court for the Middle District of Georgia _________________________

(February 21, 2013)

Before MARCUS and PRYOR, Circuit Judges, and FRIEDMAN, ∗ District Judge.

PRYOR, Circuit Judge:

∗ Honorable Paul L. Friedman, United States District Judge for the District of Columbia, sitting by designation. The main issue presented in this appeal involves a jury instruction about

proving a violation of the Controlled Substances Act, 21 U.S.C. § 801 et seq., by

medical professionals. A physician, his assistant, and a pharmacist convicted of

violating the Act in connection with the operation of a “pill mill” argue that a jury

instruction at their trial ran afoul of the decision in Gonzales v. Oregon, 546 U.S.

243, 126 S. Ct. 904 (2006), by evaluating their conduct against a national standard

of professional practice. The indictment charged Spurgeon Green Jr., a physician,

and Dorothy Mack, a physician’s assistant at Green’s clinic, with dispensing or

distributing controlled substances to drug abusers and drug pushers without a

legitimate medical purpose and outside the usual course of professional conduct,

21 U.S.C. § 841(a). The indictment also charged Jack Kelly Joseph, a pharmacist,

with unlawfully filling many of the prescriptions for the drugs, id. And the

indictment charged Green, Mack, and Joseph with conspiring to violate the Act, id.

§ 846. The defendants’ argument, raised for the first time on appeal, that the jury

instruction ran afoul of Gonzales fails because it is based on a misreading of that

instruction, which instead required the prosecution to prove that the defendants’

conduct failed to comply with any accepted standard of practice. The defendants’

remaining arguments about the jury instructions, the sufficiency of the evidence, 2 the admission of testimony by a police investigator, a search warrant of Green’s

home, and the reasonableness of Green’s sentence fail too. We affirm their

convictions and Green’s sentence.

I. BACKGROUND

From 1992 to 2003, Green operated a medical clinic in Perry, Georgia.

Houston County police became suspicious that Green’s medical clinic was not an

ordinary doctor’s office after they received complaints about long lines of people

waiting outside the clinic. Police conducted surveillance of the clinic and observed

that the parking lot outside the clinic was often full of patients waiting to see

Green. Green’s patients frequently arrived in groups of three or four people and in

cars with license plates that suggested they had traveled from other counties in

Georgia or from other states. Police also conducted sixty-four “trash pulls” from

the dumpster outside the clinic, and they conducted traffic stops of vehicles

departing the clinic to identify the occupants of those vehicles. Police learned that

many of Green’s patients had their prescriptions filled at a pharmacy that was

owned and operated by Joseph.

Police executed warrants to search Green’s medical clinic, his home, and a

storage unit that he maintained. The search warrants were supported by affidavits

that attested that Green had unlawfully dispensed or distributed controlled 3 substances and that evidence of Green’s crimes would be found at his home.

During the search, police retrieved, among other evidence, medical records from

Green’s clinic, about $800,000 from his home, and receipt books from his storage

unit. Green filed a motion to suppress the fruits of the search of his home on the

ground that the affidavit failed to provide probable cause that evidence of Green’s

crimes would be found there, but the district court denied the motion.

A federal grand jury returned an 89–count second superseding indictment

charging Green, Joseph, and Mack with violations of the Controlled Substances

Act. The indictment charged that Green, with the assistance of Mack, prescribed

controlled substances outside the usual course of professional practice to patients

who had no legitimate medical need for those substances, and that Joseph filled

those prescriptions even though he knew that Green and Mack issued the

prescriptions without any legitimate medical need and outside the usual course of

professional practice. The indictment charged that these actions violated section

841(a)(1) of the Act, which provides that, “[e]xcept as authorized by this

subchapter, it shall be unlawful for any person knowingly or intelligently . . . to

manufacture, distribute, or dispense, or possess with intent to manufacture,

distribute, or dispense, a controlled substance.” Id. § 841(a)(1). Practitioners may

issue prescriptions for controlled substances so long as the prescriptions are issued 4 “for a legitimate medical purpose by an individual practitioner acting in the usual

course of his professional practice,” 21 C.F.R. § 1306.04(a), and the indictment

charged that all three defendants acted without a legitimate medical purpose and

outside the usual course of professional practice. Count 1 of the indictment

charged Green, Mack, and Joseph with conspiring to dispense and distribute

Schedule II, III, and IV controlled substances without a legitimate medical purpose

and outside the usual course of professional practice, 21 U.S.C. § 846. Counts 2

through 86 charged some or all of the defendants with substantive violations of the

Act, id. § 841(a)(1). Counts 87 and 88 charged Green and Joseph respectively with

maintaining a place of business for the purpose of unlawfully distributing a

controlled substance, id. § 856(a)(1). And count 89 provided the defendants notice

of criminal forfeiture, id. § 853. All three defendants proceeded to a jury trial.

The prosecution presented evidence at trial that Green’s medical practice

and his clinic were unusual in many respects. Green saw as many as 100 patients

each day. He required that his patients pay in cash or by credit card before they

met with him, and he did not accept private insurance. Inside the clinic, patients

were sometimes rude and hysterical. Some patients could be heard retching in the

bathroom, while other patients offered the receptionists bribes to see the doctor as

5 soon as possible. Outside the clinic, patients sometimes camped overnight,

sleeping in cars and urinating in public.

Many of Green’s former patients were addicted to prescription drugs or sold

their prescription drugs to addicts. These patients went to Green’s clinic because

they knew he would give them the prescription drugs they wanted. One former

patient testified that it was “common knowledge . . . that you could go to [Green]

and basically write a grocery list [of] what you needed, and, you know, he would

fill it.” Another former patient addicted to prescription drugs testified that her

“honest opinion was it was a dope house,” and she testified that “people were

getting sick in the bathroom, you know. There was drug deals going on in the

parking lot.”

Green and Dorothy Mack, who worked as a physician’s assistant at Green’s

clinic from 2000 to 2003, knew that many of their patients were drug abusers.

Some patients had on their arms “track marks,” which evidence drug abuse and

make it difficult for nurses to find a vein to draw blood. Green and Mack often

assisted the nurses at the clinic to draw blood from patients with track marks.

Friends and family of Green’s patients sometimes called Green’s clinic to report

that Green’s patients were misusing their drugs and these complaints were

communicated to Green and sometimes to Mack. 6 Sergeant Manny Quinones, a police officer who investigated Green’s clinic,

testified that police determined, during the course of their investigation, that

Green’s patients included about 300 individuals who had violated drug laws in the

past. Quinones testified that officers identified these drug offenders based on

months of visual surveillance of the clinic, investigation of the license plate

numbers of Green’s patients, traffic stops of vehicles leaving the clinic, and sixty-

four trash pulls conducted at the clinic. Green objected to this testimony on the

grounds that it was unduly prejudicial and that the government did not lay an

adequate foundation for the testimony, but the district court overruled the objection

and admitted the testimony.

The prosecution also presented expert testimony that Green, Mack, and

Joseph dispensed or distributed the prescription drugs without a legitimate medical

purpose and outside the usual course of professional practice. Dr. Barry Straus, an

expert in pain management and the prescription of controlled substances who was

a practicing physician in Georgia, testified, based on his review of the medical

records maintained by Green and Mack, that their medical treatment was “below

minimum standards on recordkeeping, on treatment, on diagnosis.” Dr. Straus

testified that there was no legitimate medical reason to prescribe many of the

combinations of drugs that Green and Mack prescribed for their patients. Dr. 7 Straus also testified that, based on his review of the medical records, Green and

Mack did not conduct a thorough medical examination of their patients. Dr. Straus

testified that, if Green had conducted a thorough evaluation of each new patient, he

would not have been able to treat the large number of patients he treated each day.

Dr. Straus also testified that Green’s computer medical records suggested that

records detailing physical exams of patients were fabricated. Dr. Straus stated that,

after reviewing the medical records, one has to “really bend[] over backwards and

just mak[e] stuff up to justify [the medical practices of Green and Mack].”

The prosecution presented expert testimony that certain warning signs

should alert doctors and pharmacists that their patients may be abusing prescription

drugs, and the prosecution presented evidence that many of Green’s patients and

Joseph’s customers exhibited these warning signs. Dr. Straus testified about the

warning signs that should alert a physician that his patients are either abusing their

drugs or selling their drugs to drug abusers. Dr. Straus testified that among these

warning signs are patients who lose their medication or run out of their medication

early, patients who travel long distances to see a particular physician, and phone

calls from family and friends stating that a patient is abusing his or her prescription

drugs. Dr. John Holbrook, an expert in pharmacology and the prescription of

controlled substances, testified about the warning signs that should alert a 8 pharmacist that a patient is abusing or selling his drugs or that a patient’s

prescription was not written for a legitimate medical purpose. Dr. Holbrook

testified that among these red flags are patients who are unduly anxious to have

their prescriptions filled, have their prescriptions filled at pharmacies located far

from their homes, and wear long-sleeved clothing during warm weather seasons to

conceal “track marks” on their arms. Dr. Holbrook also testified that a pharmacist

has ethical, moral, and legal responsibilities to ensure that he does not fill for a

single patient several prescriptions that, if taken together, pose a danger to the

health of the patient.

Green and Mack also dispensed or distributed controlled substances during

the week of September 23, 2002, when Green was out of town and Mack saw 88 of

Green’s patients on his behalf. Before he left town, Green pre-signed dozens of

prescriptions for his patients, and he instructed Mack to deliver the prescriptions to

his patients if she thought it appropriate to do so. All of the 88 patients that Mack

examined during the week of September 23, 2002, were existing patients of Green,

and Mack did not examine any new patients that week. Mack delivered to 32 of

those 88 patients prescriptions for controlled substances that the Drug Enforcement

Agency classified as “Schedule II” controlled substances. Schedule II controlled

substances have “a high potential for abuse,” and “[a]buse of the drug or other 9 substances may lead to severe psychological or physical dependence.” Id.

§ 812(b)(2). Mack lacked authority under Georgia law to write prescriptions for

Schedule II drugs, but she had authority to write prescriptions for Schedule III,

Schedule IV, and Schedule V drugs, which have a lower potential for abuse than

Schedule II drugs.

Experts for both the prosecution and defense stated that doctors are not

permitted to pre-sign prescriptions. Dr. Straus testified that both state and federal

regulations prohibit doctors from signing prescriptions on a date other than the date

on which they deliver the prescriptions to patients. The relevant federal regulation

provides that “[a]ll prescriptions for controlled substances shall be dated as of, and

signed on, the day when issued.” 21 C.F.R. § 1306.05. Dr. Straus testified that

these regulations are designed to ensure that the doctor examines the patient before

delivering the prescription and to ensure that there is a legitimate medical reason

for delivering the prescription. Dr. Straus stated that every “legitimate doctor” and

“legitimate physician’s assistant” knows that he may not pre-sign prescriptions.

Dr. Straus did not review any of the patient charts of the 32 patients who received

pre-signed prescriptions during the week of September 23, 2002. Dr. Frank

Adams, an expert in pain management and internal medicine who testified on

behalf of the defendants, testified that there are “[n]o exceptions” to the rule that 10 doctors “cannot pre-sign Schedule II prescriptions.” But Dr. Adams testified that,

in some circumstances, it might be acceptable “from a clinical point of view” for a

physician’s assistant to give a patient a new prescription for a drug that a medical

doctor has already prescribed for that patient in the past.

Mack testified at trial and conceded that she had violated the regulation that

prohibits physicians from pre-signing prescriptions. Mack knew that she was not

allowed to write prescriptions for Schedule II controlled substances, but she

nonetheless gave some patients pre-signed prescriptions for Schedule II drugs

during the week of September 23, 2002. Mack testified that she did not know then

that prescriptions may not be pre-dated or pre-signed, although she conceded that

she should have known about that prohibition. Mack testified that she examined

all 88 of the patients she saw that week and that she tried to determine “in [her]

best judgment, whether or not [the patients] needed the medications that Dr. Green

had them on.” Mack testified that she did not become suspicious that any of those

88 patients were abusing or diverting their prescription medications until she heard

testimony to that effect at trial. Mack also testified that she often refused to fill

prescriptions for patients who showed signs of drug abuse and that, during the

week of September 23, 2002, she dismissed some patients from the clinic because

they showed signs of abusing prescription drugs. 11 The prosecution presented evidence contradicting Mack’s testimony that she

had scrupulously considered whether her patients had a legitimate medical need for

their prescriptions. Tonya Tyson, an investigator with the Drug Enforcement

Agency, testified that the medical records from the week of September 23, 2002,

suggested that Mack had performed either no physical exam or only a cursory

exam before she prescribed patients Schedule II drugs. And Dr. Straus testified

that, if Mack sometimes refused to treat patients who appeared to have abused their

drugs, Mack would have been even more culpable if she had prescribed controlled

substances for other patients who showed evidence of drug abuse.

Green testified at trial and admitted that he had pre-signed the 32

prescriptions. Green testified that he contacted the Drug Enforcement Agency by

telephone to inquire whether he could pre-sign prescriptions and that an Agency

official told him that he could pre-sign the prescriptions. Green could not recall

the name of the agent who approved the pre-signed prescriptions. Green stated

that pre-signing a prescription is akin to writing a prescription with a “Do Not Fill

Until” date, and Green testified that he directed Mack to deliver the prescriptions

to his patients only if she determined that there were no signs that the patients were

abusing the medication.

12 The prosecution produced testimony that contradicted Green’s statement that

a pre-signed prescription is akin to a “Do Not Fill Until” prescription. Dr. Straus

said that there is a significant difference between pre-signing prescriptions and

dispensing to a patient a “Do Not Fill Until” prescription. Dr. Straus testified that,

in 2002, it was uncertain whether it was legal for a physician to consult with a

patient and give them a “Do Not Fill Until” prescription for a Schedule II

substance, but that “no one ever thought pre-signing and pre-dating prescriptions

was legal.” Mark Caverly, the chief of the Office of Diversion Control in the Drug

Enforcement Agency, testified that pre-signed prescriptions and “Do Not Fill

Until” prescriptions are “completely separate issue[s],” and he testified that the

Agency has never permitted doctors to pre-sign and pre-date prescriptions.

Near the end of the trial, the district court instructed the jury that the

prosecution had to prove beyond a reasonable doubt that the practitioners delivered

the prescriptions without a legitimate medical purpose or outside the usual course

of professional practice. And the district court instructed the jury as follows about

a “good faith” defense under the Act:

[A] pharmacist who in good faith dispenses a controlled substance pursuant to a proper prescription from a licensed physician for a legitimate medical purpose in the usual course of his professional practice does not violate the statute.

13 […]

A controlled substance is prescribed by a physician in the usual course of professional practice and, therefore, lawfully, if the substance is prescribed by him in good faith as a part of his medical treatment for the patient in accordance with a standard of medical practice generally recognized and accepted in the United States.

The district court also instructed the jury that “[a] pharmacist who is registered

under the Controlled Substances Act is authorized to dispense or distribute

controlled substances pursuant to the legitimate prescription of a registered

physician.” Green objected that the district court should have adopted his

proposed instruction that, “[i]f a doctor dispenses drugs based on a good faith

belief he is medically treating a patient, then the doctor has dispensed the drug for

a legitimate medical purpose in the usual course of medical practice; that is, he has

dispensed the drug lawfully,” but the district court overruled this objection.

The Act provides for an enhanced prison sentence of 20 years of

imprisonment to life imprisonment if “death or serious bodily injury results from

the use of” an unlawfully dispensed or distributed Schedule II controlled

substance, 21 U.S.C. § 841(b)(1)(C), and the indictment charged some or all of the

defendants with 13 counts of causing death or serious bodily injury. The district

court instructed the jury that the delivery of the controlled substance must be a “but

for” cause of the victim’s death or serious bodily injury. The district court did not 14 instruct the jury that the Act requires that the prosecution prove that the delivery of

the controlled substance was also a proximate cause of the victim’s death or

serious bodily injury.

The jury found Green guilty as to the conspiracy count and 45 substantive

counts of violating section 841(a)(1). Among these substantive counts, the jury

convicted Green of count 12, which charged that Green unlawfully dispensed or

distributed a Schedule II controlled substance, causing death or serious bodily

injury to the patient, and of counts 52 through 83, which charged that Green

unlawfully dispensed or distributed Schedule II controlled substances, without a

legitimate medical purpose and outside the usual course of professional practice,

by pre-signing prescriptions that were delivered to patients during the week of

September 23, 2002. The jury convicted Mack of counts 52 through 83, which

charged that Mack unlawfully dispensed or distributed Schedule II controlled

substances, without a legitimate medical purpose and outside the usual course of

professional practice, by issuing pre-signed prescriptions to patients during the

week of September 23, 2002. The jury convicted Joseph only of the conspiracy

count.

The district court sentenced Green to 30 years in prison, Mack to 41 months

in prison, and Joseph to 84 months in prison. Green’s presentence investigation 15 report calculated his guideline range as 30 years of imprisonment to life

imprisonment, and at Green’s sentencing hearing, the district court adopted that

guideline range. Green requested a downward variance to the mandatory

minimum sentence of 20 years of imprisonment. The district court rejected

Green’s request and imposed a prison sentence of 30 years of imprisonment.

II. STANDARDS OF REVIEW

Several standards of review govern this appeal. We review de novo whether

the district court misstated the law in its jury instruction, United States v. Campa,

529 F.3d 980, 992 (11th Cir. 2008), and whether the evidence is sufficient to

support a conviction, United States v. Baker, 432 F.3d 1189, 1231 (11th Cir.

2005). When we review whether the evidence is sufficient to support a conviction,

we view the evidence in the light most favorable to the prosecution and draw all

reasonable inferences and credibility choices in favor of the jury verdict, United

States v. Tampas, 493 F.3d 1291, 1297–98 (11th Cir. 2007), and we must affirm a

conviction unless there is no reasonable construction of the evidence from which

the jury could have found the defendants guilty beyond a reasonable doubt, United

States v. Ignasiak, 667 F.3d 1217, 1227 (11th Cir. 2012). We review for an abuse

of discretion evidentiary rulings of the district court to which a timely objection is

made, United States v. Tinoco, 304 F.3d 1088, 1119 (11th Cir. 2002), a refusal of 16 the district court to give a requested jury instruction, United States v. Tokars, 95

F.3d 1520, 1531 (11th Cir. 1996), and the substantive reasonableness of a prison

sentence, United States v. Gonzalez, 550 F.3d 1319, 1323–24 (11th Cir. 2008).

We afford “great deference” to the determination of a magistrate judge that a

search warrant affidavit is supported by probable cause, and we uphold the

determination of the magistrate judge so long as he “had a substantial basis for

concluding that a search would uncover evidence of wrongdoing.” Illinois v.

Gates, 462 U.S. 213, 236, 103 S. Ct. 2317, 2331 (1983) (internal quotation marks

and alterations omitted). We review unpreserved objections for plain error,

including unpreserved objections to the jury instructions, Wilbur v. Corr. Servs.

Corp., 393 F.3d 1192, 1204 n.6 (11th Cir. 2004), and to the sufficiency of the

evidence, United States v. Dunlap, 279 F.3d 965, 966–67 (11th Cir. 2002).

III. DISCUSSION

We divide our discussion in five parts. First, we discuss why the

defendants’ five objections to the jury instructions all fail. Second, we discuss why

the district court did not abuse its discretion when it admitted the testimony of a

police investigator that Green’s patients included 300 known drug dealers. Third,

we discuss why the warrant to search Green’s home was supported by probable

cause. Fourth, we discuss why there was sufficient evidence to support the 17 convictions of Green and Mack. Fifth, we discuss why Green’s sentence is

reasonable.

A. The District Court Committed No Reversible Error in Its Jury Instructions.

The defendants offer five arguments that the jury instructions were

erroneous, but their arguments fail. The defendants’ arguments, several of which

are raised for the first time on appeal, either misread the jury instruction,

misunderstand the requirements to sustain a conviction under the Act, or contradict

binding precedent of this Court.

The defendants’ challenges of the jury instructions all pertain to the

authority granted by the Act to medical practitioners to prescribe controlled

substances. “The overarching aim of the [Controlled Substances Act] is to combat

drug abuse and to control the legitimate and illegitimate traffic of controlled

substances.” United States v. Tobin, 676 F.3d 1264, 1275 (11th Cir. 2012). The

Act provides that, “[e]xcept as authorized by [the Act], it shall be unlawful for any

person knowingly or intentionally . . . to . . . distribute[ ] or dispense . . . a

controlled substance.” 21 U.S.C. § 841(a)(1). But one important exception

permits registered “practitioner[s]” to dispense Schedule II, Schedule III, and

Schedule IV controlled substances with a “prescription.” Id. § 829.

18 Prescriptions are lawful if they are “issued for a legitimate medical purpose

by an individual practitioner acting in the usual course of his professional

practice.” 21 C.F.R. § 1306.04(a). “The responsibility for the proper prescribing

and dispensing of controlled substances is upon the prescribing practitioner, but a

corresponding responsibility rests with the pharmacist who fills the prescription.”

Id. If a prescription is issued without a legitimate medical purpose or outside the

usual course of professional practice, “the person knowingly filling such a

purported prescription, as well as the person issuing it,” is subject to the criminal

penalties of section 841. Id. To convict a licensed physician under section

841(a)(1), “it [is] incumbent upon the government to prove that he dispensed

controlled substances for other than legitimate medical purposes in the usual

course of professional practice, and that he did so knowingly and intentionally.”

Ignasiak, 667 F.3d at 1228 (quoting United States v. Guerrero, 650 F.2d 728, 730

(5th Cir. 1981)). And to convict a licensed pharmacist under section 841(a)(1), the

government must prove that the pharmacist filled a prescription knowing that a

physician issued the prescription without a legitimate medical purpose or outside

the usual course of professional practice. United States v. Hayes, 595 F.2d 258,

261 (5th Cir. 1979).

19 First, all three defendants argue, for the first time on appeal, that the district

court instructed the jury to evaluate their conduct against a national standard of

practice, which would run afoul of the decision of the Supreme Court in Gonzales,

546 U.S. 243, 126 S. Ct. 904. Because the defendants failed to raise this objection

before the district court, we review only for plain error. See Wilbur, 393 F.3d at

1204 n.6. Gonzales concerned an interpretive rule of the Attorney General of the

United States that stated that physician-assisted suicide is not a “legitimate medical

purpose,” see 21 C.F.R. § 1306.04(a), and that a person violates the Act if he

prescribes, dispenses, or administers controlled substances to assist suicide.

Gonzales, 546 U.S. at 254, 126 S. Ct. at 913–14. That interpretive rule conflicted

with an Oregon law that permitted doctors to dispense or prescribe a lethal dose of

drugs upon the request of a terminally ill patient. Id. at 249, 126 S. Ct. at 911. The

Supreme Court explained that “there is no question that the Federal Government

can set uniform national standards” of medical practice, id. at 271, 126 S. Ct. at

923, but the Court concluded that the Act “manifests no intent to regulate the

practice of medicine generally,” id. at 270, 126 S. Ct. at 923. The Court stated

that, because “[t]he structure and operation of the [Act] presume and rely upon a

functioning medical profession regulated under the States’ police powers,” the Act

does not empower the Attorney General to declare that physician-assisted suicide 20 is not a legitimate medical purpose. Id. We have interpreted Gonzales to state

that, “[w]hen Congress enacted the [Act], it thus manifested its intent to leave it to

the states to define the applicable standards of professional practice.” Tobin, 676

F.3d at 1275.

The district court committed no error when it instructed the jury to consider

whether the defendants acted “in accordance with a standard of medical practice

generally recognized and accepted in the United States.” This instruction did not

suggest that the jury must evaluate the conduct of the defendants against a single

national standard of practice. The instruction instead required the prosecution to

prove that the actions of the defendants were inconsistent with any accepted

standard of professional practice.

Gonzales does not govern this appeal. The prosecution never sought to have

the district court impose a national standard of professional practice. In Gonzales,

the Supreme Court concluded that the Attorney General could not issue an

interpretive rule that defines the contours of legitimate medical practice in a

particular state. But here the question whether the defendants acted in accord with

an accepted standard of professional practice was always a question for the jury.

No regulation precluded the jury from finding that the defendants acted in the usual

course of professional practice, nor did a federal regulation conflict with a state 21 law. In fact, the defendants do not even argue that there is any difference between

the Georgia standard of practice and the supposed national standard that the jury

purportedly considered.

The defendants contend that our decision in Tobin supports their argument

about this jury instruction, but we disagree. In Tobin, we suggested, in a footnote,

as follows that this jury instruction might run afoul of Gonzales if it were to read

the Act to impose a national standard of professional practice:

To the extent that the instruction speaks to “standards of [professional] practice generally recognized and accepted in the United States,” and thus suggests that the [Act] imposes national standards of professional practice, it is inconsistent with the Supreme Court’s observation that unless Congress specifies otherwise, the [Act] does not establish national standards. Gonzales, 546 U.S. at 269–72, 126 S. Ct. at 922–24. Again, none of the appellants have argued that the District Court should have instructed the jury to assess their behavior in light of the state standards that applied to them.

Tobin, 676 F.3d at 1281 n.8. But that dicta makes clear that none of the parties

argued that the jury instruction was inconsistent with Gonzales. Tobin instead

speculated sua sponte that the jury instruction would be inconsistent with Gonzales

only “[t]o the extent that the instruction . . . suggests that the [Act] imposes

national standards of professional practice.” As we have explained, this jury

instruction does not read the Act to impose a national standard of professional

practice. 22 Even if we were to conclude that the district court committed an error, that

error was not plain. An error is “plain” if it is “clear” or “obvious.” United States

v. King, 73 F.3d 1564, 1572 (11th Cir. 1996) (quoting United States v. Olano, 507

U.S. 725, 734, 113 S. Ct. 1770, 1777 (1993)). “It is the law of this circuit that, at

least where the explicit language of a statute or rule does not specifically resolve

an issue, there can be no plain error where there is no precedent from the Supreme

Court or this Court directly resolving it.” United States v. Lejarde-Rada, 319 F.3d

1288, 1291 (11th Cir. 2003). No Supreme Court or Eleventh Circuit precedent

disapproves jury instructions to evaluate the conduct of medical professionals

against “a standard of medical practice generally recognized and accepted in the

United States.” To the contrary, in United States v. Moore, 423 U.S. 122, 96 S. Ct.

335 (1975), the Supreme Court upheld the conviction of a physician who, the

record suggested, had “acted as a large scale ‘pusher’ – not as a physician,” id. at

143, 96 S. Ct. at 345, where the jury had been instructed to determine whether the

physician had acted “in the usual course of a professional practice and in

accordance with a standard of medical practice generally recognized and accepted

in the United States,” id. at 139, 96 S. Ct. at 343–44. And since the Supreme Court

decided Gonzales, our Circuit has rejected objections to a jury instruction that

measures the conduct of a physician against a standard of medical practice 23 “generally recognized and accepted in the United States.” See United States v.

Merrill, 513 F.3d 1293, 1306 (11th Cir. 2008); United States v. Williams, 445 F.3d

1302, 1309–10 (11th Cir. 2006), abrogated on other grounds by United States v.

Lewis, 492 F.3d 1219, 1220 (11th Cir. 2007) (en banc). In the light of these

precedents, the district court committed no plain error.

Nor did any alleged error affect the substantial rights of the defendants. This

deferential test of prejudice “almost always requires that the error must have

affected the outcome of the district court proceedings.” United States v. Pantle,

637 F.3d 1172, 1177 (11th Cir. 2011) (quoting United States v. Rodriguez, 398

F.3d 1291, 1299 (11th Cir. 2005)). Even if the district court should have instructed

the jury to evaluate the conduct of the defendants against only a Georgia standard

of medical practice, the defendants failed to offer any proof that the Georgia

standard differs at all from any national standard that the jury purportedly

considered.

The defendants argue that the alleged error in this instruction is

“jurisdictional” and somehow deprived the district court of the authority to hear

this matter, but we disagree. “A jurisdictional defect is one that strips the court of

its power to act and makes its judgment void.” McCoy v. United States, 266 F.3d

1245, 1249 (11th Cir. 2001) (alteration and internal quotation marks omitted). For 24 example, an indictment suffers from a jurisdictional defect when it charges no

crime at all. See United States v. Peter, 310 F.3d 709, 713 (11th Cir. 2002). The

district court had jurisdiction based on a valid indictment that charged the

defendants with violations of the Act. The defendants argue that the district court

charged the jury about an incorrect standard of practice, but this argument is not

about a jurisdictional error. Federal Rule of Criminal Procedure 30 provides that

the failure of a party to object to a jury instruction bars appellate review, except for

plain error, Fed. R. Crim. P. 30(d), and we have explained that when the Federal

Rules provide that a right may be waived, that right “simply does not fit the mold

of a jurisdictional defect,” McCoy, 266 F.3d at 1249.

Second, Green argues, again for the first time on appeal, that the jury

instruction about the good faith defense was misleading because the reference to “a

standard of medical practice generally recognized and accepted in the United

States” suggested that there was a single standard of professional practice against

which the jury had to evaluate his conduct, but we again disagree. Because Green

did not raise this objection before the district court, we again review only for plain

error. Experts for both the prosecution and the defense testified about the accepted

standard of medical practice, and it was for the jury to resolve the conflicting

testimony and determine whether Green had acted in accord with the accepted 25 standard of medical practice. See United States v. Lovern, 590 F.3d 1095, 1100

(10th Cir. 2009). We have twice held that a district court did not abuse its

discretion when it delivered a jury instruction nearly identical to this instruction.

See Merrill, 513 F.3d at 1306; Williams, 445 F.3d at 1309–10.

Green argues that the district court should have accepted Green’s proposed

jury instruction about the good faith defense, but we disagree. Green proposed that

the district court instruct the jury as follows that the defense of good faith turns

only on a subjective standard:

If a doctor dispenses drugs based upon a good faith belief that he is medically treating a patient, then the doctor has dispensed the drug for a legitimate medical purpose in the usual course of medical practice; that is he has dispensed the drug lawfully. In other words, a doctor should not be held criminally liable if the doctor acted in good faith when treating his patients.

Good faith in this context means good intentions and the honest exercise of his best professional judgment as to a patient’s needs. It means that the doctor acted in accordance with what he reasonably believed to be proper medical practice.

This proposed instruction provided an incorrect statement of the law. We have

held that whether a defendant acts in the usual course of his professional practice

must be evaluated based on an objective standard, not a subjective standard. See

Tobin, 676 F.3d at 1282–83; Merrill, 513 F.3d at 1306; Williams, 445 F.3d at

1309. 26 Third, Joseph argues, for the first time on appeal, that, although the district

court included a reference to the “good faith” defense in its charge about the

substantive counts, the district court failed to do so in its instruction about the

conspiracy counts, but this argument fails. Because Joseph did not raise this

objection before the district court, our review again is for plain error, and we

“determine[] whether the charges as a whole sufficiently instructed the jury.”

Tobin, 676 F.3d at 1283 n.11 (quoting United States v. Hooshmand, 931 F.2d 725,

731 (11th Cir. 1991)). The jury instruction about the conspiracy count explained

that the object of the conspiracy must be to distribute controlled substances “not

for a legitimate medical purpose and outside the usual course of professional

practice,” and the jury instruction about the substantive counts explained that

Joseph could not be found guilty if he acted “in good faith.” As we explained in

Tobin, the “jury could have easily referred back to the District Court’s instruction

on the [substantive] count[s] to refresh its understanding of the law that applies to

the [conspiracy] count.” Id. Joseph also cannot show that any error was “clear” or

“obvious.” King, 73 F.3d at 1572. The law of this Circuit is not even clear that

Joseph was entitled to a “good faith” jury instruction at all. Tobin, 676 F.3d at

1283 n.11 (stating that a defendant “was not entitled to an instruction that even

referred to good faith”). 27 Fourth, Joseph argues that the jury instructions erroneously conflated the

legal distinction between “distributing” and “dispensing” controlled substances.

Section 841(a)(1) of the Act states that, “[e]xcept as authorized by [the Act], it

shall be unlawful for any person knowingly or intentionally . . . to . . . distribute[ ]

or dispense . . . a controlled substance.” 21 U.S.C. § 841(a)(1). The Act defines

“dispense” as “to deliver a controlled substance to an ultimate user or research

subject by, or pursuant to the lawful order of, a practitioner, including the

prescribing and administering of a controlled substance.” Id. § 802(10). The Act

defines “distribute” as “to deliver (other than by administering or dispensing) a

controlled substance or a listed chemical.” Id. § 802(11). Joseph argues that a

“distribution” is “by definition not lawful conduct because it is statutorily defined

to comprise all transactions other than lawful ‘dispensing.’” Joseph contends that,

under the Act, “a transaction may be either unlawful distributing or lawful

dispensing, but not both.” Joseph argues that the district court elided this

distinction between the lawful act of dispensing prescriptions and the unlawful act

of distributing prescriptions when the district court instructed the jury that “[a]

pharmacist who is registered under the Controlled Substances Act is authorized to

dispense or distribute controlled substances pursuant to the legitimate prescription

of a registered physician.” Joseph argues that, because of this error, “[t]here was 28 simply no legal, articulated basis left upon which to distinguish between lawful and

unlawful transactions.” Because Joseph did not raise this objection before the

district court, we review only for plain error.

We reject the argument that, under the Act, all acts to dispense prescriptions

are lawful and all acts to distribute prescriptions are unlawful. The Supreme Court,

in Moore, 423 U.S. at 124, 96 S. Ct. at 337, explained that persons registered under

the Act may be prosecuted for either dispensing or distributing controlled

substances. We have rejected the argument that licensed individuals cannot

unlawfully “dispense” prescriptions, and we have explained that licensed

practitioners may be indicted for either unlawful distribution or unlawful

dispensation. United States v. Harrison, 651 F.2d 353, 354 & n.1 (5th Cir. 1981).

No error, plain or otherwise, occurred.

Fifth, Green argues that the district court erred when it instructed the jury

about the trigger for an elevated prison sentence, 21 U.S.C. § 841(b)(1)(C), but we

disagree. Section 841 makes it a crime for a person to unlawfully dispense or

distribute a Schedule II controlled substance and provides for a maximum sentence

of 20 years of imprisonment, but it also provides a minimum prison sentence of 20

years and a maximum prison sentence of life if “death or serious bodily injury

results from the use of such substance.” Id. The indictment charged Green with 13 29 counts of unlawfully dispensing or distributing a Schedule II controlled substance

to a patient who suffered death or serious bodily injury as a result, and the jury

found Green guilty of one of those 13 counts. Green argues that the district court

erred when it instructed the jury that the controlled substance must be an “actual”

or “but for” cause of the victim’s death or serious bodily injury. But this argument

is foreclosed by United States v. Webb, 655 F.3d 1238 (11th Cir. 2011), where we

held that section 841(b)(1)(C) “requires only proof that the death resulted from the

victim’s use of a controlled substance dispensed by the defendant,” id. at 1250.

Green argues that we should reconsider Webb, but “it is the firmly established rule

of this Circuit that each succeeding panel is bound by the holding of the first panel

to address an issue of law, unless and until that holding is overruled en banc, or by

the Supreme Court.” United States v. Hogan, 986 F.2d 1364, 1369 (11th Cir.

1993).

B. Probable Cause Supported the Warrant to Search Green’s Home.

Green argues that the warrant to search his home was not supported by

probable cause. The Fourth Amendment protects “[t]he right of the people to be

secure in their persons, houses, papers, and effects, against unreasonable searches

and seizures,” and it provides that “no Warrants shall issue, but upon probable

cause.” U.S. Const. amend. IV. A search warrant is supported by probable cause if 30 the supporting affidavit establishes “a connection between the defendant and the

location to be searched; . . . a link between the location and criminal activity; and

. . . the informant’s veracity and basis of knowledge.” United States v. Davis, 313

F.3d 1300, 1303 (11th Cir. 2002). The magistrate judge who reviews the

application for a warrant must consider the “totality-of-the-circumstances” and

“make a practical, common-sense decision whether, given all the circumstances set

forth in the affidavit before him, . . . there is a fair probability that contraband or

evidence of a crime will be found in a particular place.” Gates, 462 U.S. at 238,

103 S. Ct. at 2332. “This circuit has stated that probable cause exists ‘if facts

within the magistrate’s knowledge and of which he had reasonably trustworthy

information would warrant a man of reasonable caution in the belief that a crime

was committed and that evidence is at the place to be searched.’” United States v.

Betancourt, 734 F.2d 750, 754 (11th Cir. 1984) (quoting United States v. Strauss,

678 F.2d 886, 892 (11th Cir. 1982)).

The record supports the finding of probable cause to search Green’s home.

The warrant to search Green’s home was supported by the 39-page affidavit of

Sergeant Wayne Franklin, which provided substantial evidence that Green violated

the Act and that evidence of Green’s crimes would be found at his home. The

affidavit stated that, during the course of the investigation of Green’s medical 31 clinic, police obtained evidence that Green “issued [to his patients] prescriptions

for highly addictive drugs with minimal or no tests to determine the proper medical

need for the drugs.” The affidavit stated that this information was verified by

undercover agents who received prescriptions for addictive substances after Green

conducted only cursory medical examinations of them. The affidavit stated that

Green issued prescriptions to some patients even after he received complaints that

they were addicted to their prescription drugs. The affidavit also provided

evidence that some of Green’s patients died from drugs he prescribed for them, and

the affidavit recounted police interviews of some of Green’s patients who stated

that Green gave them prescriptions for addictive drugs after performing only a

cursory medical examination.

Green acknowledges that the lengthy affidavit sets forth a “litany of facts”

that suggest he violated the Act, but he argues that the affidavit was deficient

because it was not supported by expert medical testimony that his practices were

outside the usual course of professional practice or not for a legitimate medical

purpose. He argues that, without expert testimony, the judge who approved the

search warrant could not have had probable cause to suspect that Green’s medical

practices were unlawful. We disagree. Because Green did not raise this specific

32 objection to the search warrant before the district court, we review only for plain

error.

Expert medical testimony is not required to establish probable cause that a

defendant violated the Act. Expert medical testimony is not even necessary to

sustain a conviction under the Act because a jury may find that a doctor violated

the Act “from evidence received from lay witnesses surrounding the facts and

circumstances of the prescriptions.” United States v. Rogers, 609 F.2d 834, 839

(5th Cir. 1980). The “probable cause” standard requires the government to

produce much less evidence than it must present to sustain its burden of proof at

trial. United States v. Middleton, 599 F.2d 1349, 1356 (5th Cir. 1979). If expert

medical testimony is not required to prove beyond a reasonable doubt that Green

violated the Act, expert testimony is not required to establish probable cause that

he violated the Act. And we have held that a warrant affidavit establishes probable

cause that the defendant violated the Act when the affidavit was not supported by

expert testimony that the physician violated accepted medical standards. See

Betancourt, 734 F.2d at 754.

Green also argues that the affidavit failed to establish probable cause that

evidence of criminal conduct would be found at Green’s home, but we disagree.

Green raised this objection to the search warrant before the district court. 33 “Probable cause to search a residence requires some nexus between the premises

and the alleged crime.” United States v. Bradley, 644 F.3d 1213, 1263 (11th Cir.

2011). “Evidence that a defendant has stolen material which one normally would

expect him to hide at his residence will support a search of his residence.” United

States v. Jenkins, 901 F.2d 1075, 1080–81 (11th Cir. 1990) (quoting United States

v. Maestas, 546 F.2d 1177, 1180 (5th Cir.1977)). “[A] police officer’s expectation,

based on prior experience and the specific circumstances of the alleged crime, that

evidence is likely to be found in a suspect’s residence satisfies probable cause.”

Bradley, 644 F.3d at 1263–64. Sergeant Franklin stated in his affidavit that, during

his career, he had conducted or assisted in over 1,000 investigations for violations

of the Georgia Controlled Substances Act, and that he had investigated the

unlawful distribution of both prescription drugs and “street drugs” like cocaine and

ecstasy. Franklin also stated that, based on his knowledge, training, and

experience, dealers often store at their home illicit cash proceeds, receipts, and

other evidence of their crimes. This experience, along with the evidence that

Green violated the Act, provided probable cause to search Green’s home. Green

argues that Franklin’s affidavit was based only on Franklin’s experience with

sellers of street drugs, but Franklin’s affidavit stated that his experience involved

34 investigating a range of drug crimes, including the unlawful sale of prescription

drugs. Franklin’s affidavit established probable cause to search Green’s home.

C. The District Court Did Not Abuse Its Discretion When It Admitted Testimony That Green’s Patients Included About 300 “Known Drug Offenders.”

Green argues that the district court abused its discretion when it admitted the

testimony of an investigator who testified that police learned, during the course of

their investigation, that Green’s patients included about 300 “known drug

offenders,” but we disagree. Green argues that the government did not clearly

explain the meaning of the term “drug offenders,” and that the government did not

adequately explain how investigators identified the 300 drug offenders. Sergeant

Manny Quinones, a Houston County police officer who participated in the

investigation of Green’s clinic, testified that police learned that Green’s patients

included about 300 “known drug offenders.” Quinones adequately explained that

the 300 individuals had all violated a drug law in the past. The government also

laid an adequate foundation for how it identified these 300 drug offenders.

Quinones testified that the government identified these individuals based on

months of visual surveillance of the clinic, investigation of the license plate

numbers of Green’s patients, traffic stops of vehicles leaving the clinic, and sixty-

four trash pulls conducted at the clinic.

35 Green argues that Quinones’s statement about the 300 known drug offenders

was “a summary of the work he had done,” and that the government “was under an

evidentiary obligation to present the information upon which he relied in compiling

that summary statistic,” but this argument fails too. Federal Rule of Evidence 1006

permits parties to present summaries of evidence and requires only that the

proponent of the evidence “make the originals or duplicates available for

examination or copying, or both, by other parties at a reasonable time and place.”

Fed. R. Evid. 1006. Green does not argue that the facts supporting Quinones’s

statement were not readily available to him.

Green also argues that the testimony should have been excluded as unduly

prejudicial, but the district court was entitled to find to the contrary. To be sure,

“[t]he court may exclude relevant evidence if its probative value is substantially

outweighed by a danger of . . . unfair prejudice.” Fed. R. Evid. 403. But we have

explained that “Rule 403 is an extraordinary remedy which should be used only

sparingly since it permits the trial court to exclude concededly probative evidence.

In criminal trials relevant evidence is inherently prejudicial. [Thus, t]he rule

permits exclusion only when unfair prejudice substantially outweighs probative

value.” Merrill, 513 F.3d at 1301 (quoting Betancourt, 734 F.2d at 757). The

evidence that many of Green’s patients were either drug abusers or drug sellers 36 was probative of Green’s guilt. The testimony was relevant to prove that many of

Green’s patients either abused their drugs or sold their drugs and that Green either

knew or should have known about his patients’ misuse of their prescription drugs.

The district court did not abuse its discretion when it admitted the testimony.

D. Sufficient Evidence Supports the Defendants’ Convictions.

Green and Mack raise two objections to the sufficiency of the evidence to

support their convictions. First, Green and Mack argue that the prosecution

presented insufficient evidence to convict them as to counts 52 through 83, for

unlawfully dispensing or distributing controlled substances by pre-signing

prescriptions during the week of September 23, 2002. Second, Green argues that

the prosecution presented insufficient evidence about the standard of medical

practice against which the jury had to evaluate their conduct. We discuss each

argument in turn.

1. Sufficient Evidence Supports the Convictions of Green and Mack For Delivering Pre-Signed Prescriptions.

Green and Mack argue that there was insufficient evidence to convict them

of counts 52 through 83, for unlawfully dispensing or distributing controlled

substances by pre-signing prescriptions during the week of September 23, 2002,

but we disagree. Counts 52 through 83 charged Green and Mack with knowingly

37 dispensing or distributing a Schedule II controlled substance without a legitimate

medical purpose and outside the usual course of professional practice. The

indictment charged that Green signed the prescriptions before September 23, 2002,

and that Mack delivered the prescriptions to 32 patients during the week of

September 23, 2002. To convict Green of violating section 841(a)(1), the

prosecution must “prove that he dispensed controlled substances for other than

legitimate medical purposes in the usual course of professional practice, and that

he did so knowingly and intentionally.” Ignasiak, 667 F.3d at 1228 (quoting

Guerrero, 650 F.2d at 730). The mens rea required for a conviction under section

841(a)(1) is knowledge, not willfulness. Tobin, 676 F.3d at 1279–80. “Because

the [Act] prohibits the distribution of prescription drugs that is not authorized, a

distribution is unlawful if 1) the prescription was not for a ‘legitimate medical

purpose’ or 2) the prescription was not made in the ‘usual course of professional

practice.’” Id. at 1282 (citation omitted). Mack was charged and convicted as both

a principal, 21 U.S.C. § 841(a)(1), and an aider and abettor, 18 U.S.C. § 2. “To

sustain a conviction under an aiding and abetting theory, the prosecution must

show that ‘the defendant associated [her]self with a criminal venture, participated

in it as something [s]he wished to bring about, and sought by [her] actions to make

38 it succeed.’” United States v. Pantoja–Soto, 739 F.2d 1520, 1525 (11th Cir. 1984)

(quoting United States v. Bryant, 671 F.2d 450, 454 (11th Cir. 1982)).

The government presented sufficient evidence to sustain the convictions of

Green and Mack as to counts 52 through 83. Green and Mack both testified that

they violated a federal regulation that provides that “[a]ll prescriptions for

controlled substances shall be dated as of, and signed on, the day when issued.” 21

C.F.R. § 1306.05. Mack also conceded that she lacked the authority to write

prescriptions for Schedule II substances, that she knew she lacked the authority to

do so, and that she nevertheless delivered the prescriptions for Schedule II

substances to her patients. Dr. Straus, the expert witness of the government,

testified that it is a violation of both federal and state regulations to issue pre-

signed and pre-dated prescriptions. Dr. Straus testified that a reasonable doctor

and physician’s assistant would know that it is unlawful to distribute pre-signed

prescriptions. Dr. Straus testified that the prohibition against pre-signed

prescriptions is designed to ensure that all patients receive a medical examination

by a licensed physician before the physician prescribes the patient a drug and to

ensure that physicians do not act as drug pushers by writing prescriptions for

patients with no medical need for those prescriptions.

39 Although we agree with Green and Mack that a violation of section 1306.05

does not constitute a per se violation of section 841, the jury was entitled to infer,

based on Green’s pre-signing and pre-dating of the prescriptions and Mack’s

delivery of those prescriptions to Green’s patients, that they violated the Act. The

record establishes that Green and Mack delivered Schedule II prescriptions to

patients who were never examined by a physician. Mack met with those patients,

but even she performed no physical examinations or only cursory physical

examinations. Mack delivered the prescriptions based on her judgment that the

patients had a legitimate medical need for the Schedule II substances, but she

lacked authority to make that medical conclusion. And a physician’s delivery of a

prescription without conducting any physical examination of the patient provides

strong evidence to support a conviction under the Act. See United States v. Rosen,

582 F.2d 1032, 1036 (5th Cir. 1978) (stating that conduct creating an inference that

the defendants violated section 841(a)(1) includes instances where “[n]o physical

examination was given”); see also United States v. McIver, 470 F.3d 550, 564 (4th

Cir. 2006).

Green and Mack both testified at trial, and their testimony provided

“substantive evidence of [their] guilt.” United States v. Brown, 53 F.3d 312, 314

(11th Cir. 1995). We have explained that “a defendant’s decision to take the stand 40 and testify to his own state of mind provides the rare opportunity for direct

evidence to be presented to the jury.” Tobin, 676 F.3d at 1287. “[A] defendant’s

decision to offer testimony on the issue of mens rea can also be fatal to his attempt

to exculpate himself,” because his testimony may be used as substantive evidence

of guilt. Id. “In fact, where there is ‘some corroborative evidence’ of guilt, a

defendant's testimony ‘may establish, by itself, [the] elements of the offense.’” Id.

(quoting Brown, 53 F.3d at 314–15). Mack testified that she did not know that she

was not permitted to distribute the pre-signed prescriptions, and she testified that

she thoroughly examined all 32 patients and determined that they had a legitimate

medical need for the prescriptions. Green testified that the Drug Enforcement

Agency permitted him to pre-sign the prescriptions. The jury was entitled to

evaluate the credibility of Green and Mack, discredit their testimony, and infer that

their testimony instead provided substantive evidence of their guilt.

A reasonable jury could have found that both Green and Mack violated the

Act, and that Mack aided and abetted Green’s violations of the Act. “Based upon

this evidence, in combination with the experts’ testimony, we cannot say the ‘jury

could not have found the defendant guilty under any reasonable construction of the

evidence.’” Ignasiak, 667 F.3d at 1229 (quoting Merrill, 513 F.3d at 1299).

Sufficient evidence supports the convictions of Green and Mack. 41 2. Sufficient Evidence Supports the Finding that Green Violated the Applicable Standard of Practice.

Green argues that the prosecution presented insufficient evidence to convict

him of any count because the prosecution failed to prove the standard of medical

practice against which the jury was required to measure his conduct, but we

disagree. Before the district court, Green filed a motion for a judgment of

acquittal, Fed. R. Crim. P. 29(c), in which he argued that the prosecution presented

insufficient evidence to sustain his conviction, but Green failed to make the

argument he raises here. Although we customarily review de novo the sufficiency

of evidence supporting a conviction, Baker, 432 F.3d at 1231, because Green “did

not clearly object to the trial court on this insufficient-evidence basis, the district

court can be reversed only upon our finding of plain error.” Dunlap, 279 F.3d at

966–67.

Green argues that the prosecution failed to present sufficient expert

testimony about the applicable standard of practice, but “the Government does not

have to present proof through the use of expert testimony.” Rogers, 609 F.2d at

839. “The ultimate issue was not whether [Green’s] activities comported with

accepted standards of medical practice but whether he knowingly prescribed

controlled substances for no legitimate medical purpose outside the course of his

42 professional practice.” Noell v. Bensinger, 586 F.2d 554, 557 (5th Cir. 1978).

Although expert testimony is often helpful to the jury, “a jury can find that a doctor

prescribed controlled substances not in the usual course of his medical practice and

was acting other than for a legitimate medical purpose from evidence received

from lay witnesses surrounding the facts and circumstances of the prescriptions.”

Rogers, 609 F.2d at 839.

The record contains substantial evidence from which a reasonable jury could

have found that Green acted without a legitimate medical purpose and outside the

usual course of professional practice. Conduct that suggests that a defendant

distributed a prescription without a legitimate medical purpose and outside the

usual course of professional practice includes conduct where “[a]n inordinately

large quantity of controlled substances was prescribed[,] . . . [l]arge numbers of

prescriptions were issued[,] . . . [n]o physical examination was given[,] . . . [t]he

physician issued prescriptions to a patient known to be delivering the drugs to

others[,] . . . [and] [t]here was no logical relationship between the drugs prescribed

and treatment of the condition allegedly existing.” Rosen, 582 F.2d at 1036. The

record establishes that Green prescribed an inordinate amount of certain controlled

substances, that he did so after conducting no physical examinations or only a

cursory physical examination, that Green knew or should have known that his 43 patients were misusing their prescriptions, and that many of the combinations of

prescription drugs were not medically necessary.

Both the prosecution and the defense also presented the jury with substantial

expert testimony about the applicable standard of professional conduct. Dr. Straus

testified at length about the applicable standard. Dr. Straus testified that there are

medical standards in the practice of pain management, and he explained how

doctors must treat their patients to comport with those standards. Dr. Straus

testified that doctors must first conduct a comprehensive physical exam, conduct

any appropriate laboratory testing, and inquire into a patient’s medical history

before diagnosing the patient’s illness. Dr. Straus testified that a pain management

doctor must consider whether there are any red flags that indicate the patient is

abusing his prescription drugs. Dr. Straus testified that doctors should consider

ways to treat pain other than through narcotics treatment, that it is customarily

inappropriate for a physician to treat a patient by immediately prescribing him a

controlled substance, and that if the doctor decides to prescribe a controlled

substance, he should move “up the ladder” and begin his treatment by distributing

less powerful and less addictive drugs. Dr. Straus testified that, after prescribing a

drug, accepted medical standards require a doctor to follow up with the patient and

ensure that the patient still needs that prescription. Dr. Straus also testified that the 44 medical standards require doctors to document their treatment of patients and

record the prescriptions they issue to their patients. Dr. Straus then testified that,

based on his review of the medical records maintained by Green and Mack, their

medical treatment was “below minimum standards on recordkeeping, on treatment,

on diagnosis.” Dr. Straus testified that there was no legitimate medical reason to

prescribe many of the combinations of drugs that Green prescribed for his patients.

And Dr. Straus concluded that, after reviewing the medical records, “trying to find

legitimate medical reasons that isn’t, sort of, you’re really bending over backwards

and just making stuff up to justify [the medical practices of Green and Mack].” Dr.

Adams also described the applicable standard of medical practice. Dr. Adams

testified about the range of medically acceptable ways to treat patients with

physical pain, and he testified that doctors must tailor which drugs they prescribe

based on the needs of each individual patient. Dr. Adams also testified that doctors

must maintain comprehensive medical records, and that he had difficulty

understanding Green’s byzantine medical records.

E. Green’s Sentence Is Reasonable.

Green argues that the district court abused its discretion when it sentenced

Green to 30 years of imprisonment. Because the jury found Green guilty of one

count of unlawfully dispensing or distributing a controlled substance that caused 45 death or serious bodily injury, a mandatory minimum sentence of 20 years of

imprisonment, and a statutory maximum sentence of life in prison, applied to

Green. See 21 U.S.C. § 841(b)(1)(C). Green’s presentence investigation report

calculated Green’s offense level as 42, his criminal history category as I, and his

guideline range as 30 years of imprisonment to life imprisonment. The district

court adopted the guideline range of the presentence investigation report, and

Green does not contend that the district court incorrectly calculated his guideline

range. Green instead argues that the district court abused its discretion when it

imposed a sentence of 30 years of imprisonment and refused to adopt a downward

variance from his guideline range. Green argues that the purposes of sentencing

may be achieved with the mandatory minimum sentence of 20 years of

imprisonment, not a sentence of 30 years, which effectively amounts to a life

sentence.

Section 3553(a) requires the district court to impose a sentence “sufficient,

but not greater than necessary,” to comply with the purposes of sentencing. 18

U.SC. § 3553(a). The purposes of sentencing include the need for the sentence “to

reflect the seriousness of the offense, to promote respect for the law, and to provide

just punishment for the offense”; “to afford adequate deterrence to criminal

conduct”; “to protect the public from further crimes of the defendant”; and “to 46 provide the defendant with needed educational or vocational training, medical care,

or other correctional treatment in the most effective manner.” Id. § 3553(a)(2).

The district court must also consider “the nature and circumstances of the offense

and the history and characteristics of the defendant,” “the kinds of sentences

available,” the Guidelines range, any pertinent policy statements of the Sentencing

Commission, “the need to avoid unwarranted sentence disparities among

defendants with similar records who have been found guilty of similar conduct,”

and “the need to provide restitution to any victims of the offense.” Id.

§ 3553(a)(1), (3)–(7). “We will defer to the district court's judgment regarding the

weight given to the § 3553(a) factors unless the district court has made a clear error

of judgment and has imposed a sentence that lies outside the range of reasonable

sentences dictated by the facts of the case.” Gonzalez, 550 F.3d at 1324 (internal

quotation marks omitted).

The sentence imposed by the district court is reasonable. This sentence was

at the nadir of Green’s guideline range of 30 years of imprisonment to life

imprisonment. Although we have not adopted a presumption that a sentence

within the guideline range is reasonable, we have stated that “ordinarily we would

expect a sentence within the Guidelines range to be reasonable.” United States v.

Chavez, 584 F.3d 1354, 1365 (11th Cir. 2009) (quoting United States v. Talley, 47 431 F.3d 784, 788 (11th Cir. 2005)). The jury convicted Green of 46 counts of

violating or conspiring to violate the Controlled Substances Act, including one

count of unlawfully dispensing or distributing controlled substances and causing

death or serious bodily injury. Both the statutory penalty and the guideline range

permitted the district court to impose a much more severe sentence of

imprisonment. The district court did not abuse its discretion when it sentenced

Green to 30 years of imprisonment.

IV. CONCLUSION

We AFFIRM the convictions of Green, Mack, and Joseph, and the prison

sentence of Green.

48 FRIEDMAN, District Judge, concurring:

I concur in the decision to affirm the convictions of all three appellants in

this case and join fully in the analysis contained in Judge Pryor’s persuasive

opinion for the court.

I add these few additional comments with respect to the sufficiency of the

evidence challenge raised by appellant Dorothy Mack. Her counsel argues, among

other things, that there was insufficient evidence regarding her mens rea. I agree

with my colleagues that there was sufficient evidence to convict Mack based on

her admitted violations of 21 C.F.R. § 1306.05 – which is relevant evidence,

though not sufficient in itself – her admissions on the witness stand, and the jury’s

assessment of her credibility, as well as additional circumstantial evidence of her

guilt. I am concerned, however, that the jury was never instructed that Mack could

be convicted as an aider and abettor only if she held the same mens rea as her

principal, Dr. Green.

Ms. Mack was charged in the Indictment as both a principal and an aider and

abettor. Throughout the trial, however, the government’s theory was exclusively

one of aiding and abetting, and the district judge clearly perceived it as such. As

the court’s opinion points out, to prove aiding and abetting, the government must

show that “the defendant associated [her]self with a criminal venture, participated 49 in it as something [s]he wished to bring about, and sought by [her] actions to make

it succeed.” Opinion at 38–39 (quoting United States v. Pantoja-Soto, 739 F.2d

1520, 1525 (11th Cir. 1984)). It is equally clear, however, that under such a theory

the government also had to show that Mack had the same mens rea Dr. Green had,

see United States v. Leonard, 138 F.3d 906, 909 (11th Cir. 1998), something the

jury was never told. In my view, this means that the government would have had

to prove either that Mack knew there was no “legitimate medical purpose” for the

prescriptions written by Dr. Green, or knew that Dr. Green, by failing to properly

examine patients and directing Mack to give pre-signed prescriptions to these

patients on his behalf, was not acting in the “usual course of professional

practice.”1

The prosecutor argued to the jury that Mack had the same obligation as Dr.

Green “to make sure that the medical care is legitimate,” and the trial judge, in

denying a post-trial Rule 29 motion, stated that the jury could reasonably have

found that Mack was aware that the prescriptions “were not for a legitimate

medical purpose.” Yet the jury instructions given with respect to Mack failed to

1 Even as a principal, Mack would have had to have been aware that there was no legitimate medical purpose for the prescriptions issued by Dr. Green in order to be convicted. United States v. Lovern, 590 F.3d 1095, 1196 (10th Cir. 2009).

50 explain any of this, despite numerous requests from her lawyer. During the charge

conferences, counsel for Mack specifically requested an instruction on “not for

legitimate medical purpose” and “outside the usual course of professional

practice.” He argued that the government had to prove “this additional feature of

the case; in fact, it’s an essential one to make this case work, the legitimacy and

usualness of it.” He also requested a “good faith” defense charge.

When it came time for jury instructions, however, the district judge

instructed the jury about these safe havens with respect to Dr. Green and Mr.

Joseph, the pharmacist, but not Ms. Mack. The court instructed the jury that Dr.

Green could lawfully dispense and distribute controlled substances by prescriptions

“for legitimate medical purposes and in the usual course of professional practice,”

and gave a similar instruction regarding Mr. Joseph. The district court also

explained to the jury that a doctor is acting in the course of his professional

practice if he prescribes a substance “in good faith as part of his medical

treatment,” and that a pharmacist who dispenses a controlled substance “in good

faith” pursuant to a prescription does not violate the Controlled Substances Act.

Conspicuously absent was any instruction that, as an aider and abettor, Ms. Mack,

a physician’s assistant, had to know that the prescriptions Dr. Green issued were

not for a legitimate medical purpose or issued in the usual course of professional 51 practice or that Mack’s good faith reliance on Dr. Green was a relevant factor for

the jury’s consideration.2

The arguments Mack makes in this court are based exclusively on the

asserted insufficiency of the evidence and not on these inadequacies in the district

court’s instructions to the jury. Indeed, in response to questions at oral argument,

counsel specifically stated that he was not making an argument based on any

failings in the jury instructions. Because the issues that concern me relating to the

jury instructions have not been raised on appeal, and because, drawing all

reasonable inferences in the light most favorable to the government, I agree there

was sufficient evidence for a reasonable jury to find Mack guilty beyond a

reasonable doubt, United States v. Hernandez, 433 F.3d 1328, 1333-34 (11th Cir.

2005), I join the court’s opinion in all respects.

2 It is not clear from the record whether Mack’s counsel adequately objected to these deficiencies in the instructions pursuant to Rule 30(c) of the Federal Rules of Criminal Procedure. After the jury was charged, he said: “I would just like to preserve the objections [to the instructions] I previously made, Your Honor. No new ones.”