United States v. Jackson Noel

• Court: Court of Appeals for the Sixth Circuit
• Decided: November 8, 2021
• Docket: 20-6167
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 21a0508n.06

Case No. 20-6167

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

FILED 11/08/2021 ) UNITED STATES OF AMERICA, DEBORAH S. HUNT, Clerk ) ) Plaintiff-Appellee, ) ON APPEAL FROM THE UNITED ) STATES DISTRICT COURT FOR v. ) THE EASTERN DISTRICT OF ) KENTUCKY JACKSON NOEL, ) ) Defendant-Appellant. )

Before: SUTTON, Chief Judge; McKEAGUE and WHITE, Circuit Judges.

SUTTON, Chief Judge. A jury convicted Jackson Noel of conspiring to distribute

oxycodone and oxymorphone in connection with the operation of his pharmacy in rural West

Virginia. Noel appeals his conviction, challenging the admission of other-acts evidence at trial

and the sufficiency of the evidence. We affirm.

I.

This alleged “chain conspiracy” involved three key players: Jackson Noel, Darryl

Williams, and Dr. Joel Smithers. Jackson Noel started working for a retail pharmacy chain in West

Virginia in 1990. In 2011, he opened his own shop in Buffalo, West Virginia. As the pharmacist

in charge at Buffalo Drug, Noel decided whether the pharmacy should fill a given prescription. Case No. 20-6167, United States v. Noel

Drug Enforcement Administration agents began investigating Noel’s pharmacy after receiving

information from Darryl Williams about his connections with the pharmacy.

Williams admitted to law enforcement that he distributed drugs and agreed to cooperate

with them. In his telling, he arranged and paid for individuals from Kentucky to obtain and fill

prescriptions for controlled substances. In return, he received half of the pills obtained. Williams

would keep some for personal use and sell the rest at hefty profits.

Federal agents identified Dr. Joel Smithers, a physician in Martinsville, Virginia, as the

key source of opioid prescriptions written for Williams’s drug trafficking operation. When

Williams first went to see Dr. Smithers, he told the doctor he “could get him a lot of clients.”

R.150 at 5. At trial, Williams identified 12 of these clients by name. During a typical visit to Dr.

Smithers’s office, a client would sit in the waiting room for a long time before seeing Dr. Smithers

for “just a few minutes.” Id. at 10. Medical exams were perfunctory or non-existent. Dr. Smithers

would ask clients what medication they took, then write a prescription for whatever they told him.

Members of Williams’s organization preferred large quantities of oxycodone and oxymorphone,

both Schedule II controlled substances. 21 C.F.R. § 1308.12(b)(1).

The Williams operation eventually had trouble filling prescriptions that Dr. Smithers wrote.

As Williams put it, he tried “every Walgreen, Rite Aid, Walmart, [and] CVS from Martinsville,

Virginia, to Louisville, Kentucky.” R.150 at 12. When he raised this issue with Dr. Smithers, the

doctor told him to go see Jackson Noel at Buffalo Drug. Buffalo Drug before long became one of

three primary pharmacies Williams’s organization used to fill prescriptions from Dr. Smithers. All

told, Noel filled 192 prescriptions that Dr. Smithers wrote for identified members of the Williams

operation.

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Agents executed a search warrant at Buffalo Drug, seizing records of prescriptions filled

at the pharmacy for oxycodone, oxymorphone, and other Schedule II controlled substances

between June 2015 and April 2017. Many prescriptions contained anomalies that suggested

illegitimate prescription practices and drug diversion. Some of the red flags included prescriptions

from out-of-state doctors, prescriptions being written for and filled by far-away, out-of-state

patients, payments at inflated prices, high doses of opioids, and patients traveling long distances

or in groups to obtain and fill prescriptions. Many members of Williams’s organization lived near

Stone, Kentucky. Yet Smithers operated out of Martinsville, Virginia, 250 miles away. Noel’s

West Virginia pharmacy was not close either: 252 miles from Martinsville and 115 miles from

Stone.

A grand jury charged Noel with conspiring to dispense and distribute oxycodone and

oxymorphone between June 2015 and December 2016. 21 U.S.C. § 846. The government argued

at trial that Noel conspired with Dr. Smithers, Williams, and those whom Williams sponsored to

divert prescription drugs in exchange for cash. The jury found Noel guilty, and the district court

sentenced him to 120 months.

II.

Admission of other-acts evidence. Noel contends that the district court wrongly admitted

evidence related to prescriptions, prescribers, and patients outside of the charged conspiracy, all

in violation of Evidence Rule 404(b). The rule prohibits the admission of other acts when used to

prove that a person acted “in accordance with the character” demonstrated by those other actions.

Fed. R. Evid. 404(b)(1). But the rule permits such evidence when used for “another purpose,”

such as proving “intent,” “knowledge,” or “absence of mistake,” id. 404(b)(2), and it permits a

party to introduce such evidence to counter a defense that a defendant did not mean to violate a

3 Case No. 20-6167, United States v. Noel

criminal law, United States v. Johnson, 27 F.3d 1186, 1192 (6th Cir. 1994). To convict Noel of

conspiring to distribute controlled substances, the government had to show that he knowingly

agreed to fill prescriptions for oxycodone and oxymorphone outside the usual course of

professional practice. United States v. Veal, 23 F.3d 985, 987–88 (6th Cir. 1994) (per curiam);

United States v. Wheat, 988 F.3d 299, 306 (6th Cir. 2021).

When deciding whether to admit Rule 404(b) evidence, courts ask if (1) the other acts

occurred, (2) the government offered the evidence for a proper purpose, and (3) a danger of unfair

prejudice substantially outweighs the probative value of the evidence. United States v. Carter,

779 F.3d 623, 625 (6th Cir. 2015). Generally speaking, we review trial-court decisions under

Rule 404 for abuse of discretion. United States v. Mack, 258 F.3d 548, 553 n.1 (6th Cir. 2001).

A central issue at trial was whether Jackson Noel filled the charged prescriptions innocently

or knew that in filling them he acted outside professional norms. The records seized from Noel’s

pharmacy included prescriptions for controlled substances written by doctors other than Dr.

Smithers but bearing similar red flags, including out-of-state patients, inflated payments, and high

doses of opioids. Government witnesses testified that 11 of these medical professionals were under

investigation by the Drug Enforcement Administration. The government used this evidence,

which tended to show a calculated approach to fill prescriptions with red flags suggestive of drug

trafficking, to combat Noel’s defense that “slick” drug dealers duped him, and that he had no idea

he supplied drugs for a trafficking organization. R.152 at 125.

The trial court “permissibly exercise[d] its discretion within the boundaries of” Rule 404(b)

in admitting this evidence. United States v. Tasis, 696 F.3d 623, 628 (6th Cir. 2012). The court

allowed it only to show Noel’s intent, knowledge, and absence of mistake in joining a conspiracy

to dispense oxycodone and oxymorphone outside the usual course of professional practice. A

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complete understanding of the broader set of prescriptions seized from Noel’s pharmacy was

relevant to the jury’s consideration of the conspiracy charge because the evidence was probative

of whether Noel knew that the filled prescriptions for Williams’s operation went well beyond

professional norms. The court admitted the evidence only after determining that any danger of

unfair prejudice did not outweigh its probative value. And it mitigated the potential unfair

prejudice of the evidence by instructing the jury not to consider it for improper purposes and by

limiting the government’s discussion of individuals outside the charged conspiracy. See United

States v. Merriweather, 78 F.3d 1070, 1077 (6th Cir. 1996). Given the court’s careful

consideration of the admissibility of the challenged evidence and its multiple instructions on the

limited purpose for which the jury could consider the evidence, we cannot say that the court abused

its discretion.

Noel offers three counterarguments. He first contends that some of the other-acts evidence

constituted inadmissible hearsay. As for the admission of Noel’s business records, he failed to

raise a hearsay objection at trial or during a pretrial conference, and he has not convincingly argued

that the prescriptions did not, in fact, become part of his business records. Further, the government

used them simply to show that Noel dispensed controlled substances prescribed by doctors other

than Dr. Smithers. As for the testimony by employees of the Drug Enforcement Administration,

they spoke based on personal knowledge that Noel filled prescriptions written by doctors under

investigation by the agency, disproving the hearsay allegation. At all events, Noel never objected

to their testimony on this basis at trial, and he cannot remotely show its admission amounted to

plain error. Nor did Noel raise a hearsay objection when a pharmacy board investigator testified,

again based on personal knowledge, that authorities had suspended several of the doctors’ licenses.

No plain error occurred on this score either.

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Noel next argues that the government introduced the evidence for an impermissible

purpose. But a central issue at trial—indeed Noel’s key defense—concerned his intent. We do

not mark a new path in allowing a court to admit other-acts evidence under Rule 404(b) to prove

intent. Carter, 779 F.3d at 625. To determine whether the evidence bears on intent, “we look to

whether the evidence relates to conduct that is substantially similar and reasonably near in time to

the specific intent offense at issue.” Id. (quotation omitted). This evidence fits that bill. Noel’s

other acts were substantially similar to the charged offense because they involved filled

prescriptions bearing red flags similar to those Dr. Smithers wrote. These acts were “sufficiently

analogous to support an inference of criminal intent.” United States v. Benton, 852 F.2d 1456,

1468 (6th Cir. 1988). And the prescription records, which ranged from June 2015 to April 2017,

were reasonably near in time to, and largely coincided with, the charge that the conspiracy lasted

between June 2015 and December 2016. See United States v. Ismail, 756 F.2d 1253, 1260 (6th Cir.

1985).

United States v. Jones does not alter this conclusion. 570 F.2d 765 (8th Cir. 1978). It held

that the trial court erred in admitting hundreds of prescriptions written by the defendant beyond

the direct charge of twice prescribing a drug outside the usual course of professional practice. Id.

at 766, 768. It was not a conspiracy case. And the government obtained testimony that some of

the patients named in those hundreds of prescriptions had narcotics addictions, but it failed to

introduce “other proof that the prescriptions had not been issued for a proper medical purpose.”

Id. at 768. Without more, the government failed to show that the defendant “acted

unprofessionally” in filling the prescriptions, and the evidence did not show intent to commit the

charged offenses. Id.

6 Case No. 20-6167, United States v. Noel

Today’s other-acts evidence went beyond allegations that Noel filled prescriptions for drug

addicts, and the government used it to show a conspiracy, not to show that two prescriptions

exceeded professional norms. The evidence showed multiple red flags: prescriptions written for

and filled by out-of-state patients, non-insurance payments at inflated prices, high doses of opioids,

and patients traveling long distances to fill prescriptions. Those red flags “support a reasonable

inference that the underlying prescriptions” were filled “outside the usual course of professional

practice.” United States v. Lague, 971 F.3d 1032, 1040 (9th Cir. 2020). And a jury could find this

other-acts evidence probative of Noel’s intent to conspire to dispense oxycodone and

oxymorphone illegally when he filled prescriptions written by Dr. Smithers bearing similar red

flags, undermining his defense that he acted only negligently in agreeing to fill those prescriptions.

See id.; United States v. Brown, 553 F.3d 768, 789–90 (5th Cir. 2008); United States v. Lasher,

661 F. App’x 25, 28 (2d Cir. 2016).

That the government did not offer expert testimony to confirm that Noel acted outside

professional norms when he filled the other-acts prescriptions does not make the evidence

inadmissible. Understanding whether someone acted in the usual course of professional practice,

we appreciate, sometimes requires expert testimony. But at the same time there are plenty of

situations in which “the lay testimony is so clear that no expert testimony is required.” United

States v. Elliott, 876 F.3d 855, 865 (6th Cir. 2017) (quotation omitted). The lay testimony and

evidence of red flags here sufficed “to support a finding by the jury that” Noel committed the

allegedly similar other acts. See Huddleston v. United States, 485 U.S. 681, 685 (1988).

Noel adds that the prejudicial effect of the other acts substantially outweighed any

probative value. A trial court “may exclude relevant evidence if its probative value is substantially

outweighed by a danger of . . . unfair prejudice.” Fed. R. Evid. 403. Recognizing the trial court’s

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ring-side view of the proceedings, we grant it wide discretion in making that call. United States v.

Vance, 871 F.2d 572, 576 (6th Cir. 1989). No abuse of discretion occurred. The evidence was

probative. It illustrated a calculated scheme on Noel’s part to insist on inflated non-insurance

payments (usually in cash) when filling prescriptions for high doses of controlled substances

written for out-of-state patients, contrary to his defense that he negligently filled prescriptions for

members of Williams’s operation. We appreciate that the government’s introduction of evidence

that Noel filled prescriptions written by other doctors under federal investigation creates a risk of

prejudice, one that district courts must take seriously. But that risk was not unfair in this case. To

its credit, the district court also sought to mitigate the risk by issuing limiting instructions requiring

the jurors to consider this evidence to determine only whether Noel “had the intent to commit the

alleged crime.” R.150 at 225; see also id. at 230; R.149 at 60; R.153 at 82. The district court’s

consideration of this issue reveals a careful and acceptable use of its broad discretion, not an abuse

of it.

Sufficiency of the evidence. The drug laws make it unlawful to distribute a controlled

substance knowingly or intentionally. 21 U.S.C. § 841(a)(1). The prohibition does not apply to

pharmacists as long as their actions fall within the usual course of professional practice. United

States v. Moore, 423 U.S. 122, 124 (1975). A pharmacist thus violates this drug-distribution

prohibition if he knowingly fills a controlled substance prescription issued outside professional

norms. Veal, 23 F.3d at 988.

The government charged Noel with conspiring to violate § 841(a)(1). See 21 U.S.C. § 846.

To convict Noel of that offense, the government had to show that two or more people agreed to

distribute controlled substances outside the usual course of professional practice, and that Noel

knowingly and voluntarily joined that agreement. See Wheat, 988 F.3d at 306. The requisite

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agreement “can be an unspoken ‘meeting of the minds’ that two or more people will jointly achieve

a drug-distribution end.” Id. at 306–07. In a chain-distribution conspiracy, like the one charged

here, an agreement may “be inferred from the interdependent nature of the criminal enterprise.”

United States v. Williams, 998 F.3d 716, 728 (6th Cir. 2021) (quotation omitted). It suffices for

the government to show that a defendant “realized that he was participating in a joint venture.”

United States v. Robinson, 547 F.3d 632, 641 (6th Cir. 2008) (quotation omitted).

In assessing a sufficiency challenge, we ask whether, after construing all evidence in favor

of the verdict, “any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). Ample evidence

supports the jury’s verdict.

As for the existence of an agreement, Williams told Smithers that he “could get him a lot

of clients.” R.150 at 5. Smithers then charged cash to write prescriptions for out-of-state clients

for large quantities of controlled substances without conducting proper medical examinations. He

even wrote some prescriptions without seeing the patients. When Williams complained that

pharmacies would not fill the prescriptions, the doctor told him to “see Jackson at Buffalo Drug.”

Id. at 12. As predicted, Jackson Noel then filled 192 prescriptions that Smithers wrote for

identified members of Williams’s operation, even though Smithers’s office was 252 miles away

from Buffalo. Williams’s operation could not succeed without a doctor willing to issue illegitimate

prescriptions and a pharmacist willing to fill the prescriptions, making the enterprise highly

interdependent. A rational jury could infer at a minimum that an unspoken meeting of the minds

arose between Dr. Smithers, the Williams operation, and Noel to distribute drugs outside

customary professional practices.

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As for knowing participation, Noel knew that “a good number” of the people bringing

prescriptions from Smithers had been patients of a pain clinic that the State had shut down. R.152

at 110–11. He knew they were coming from a considerable distance, “Southeast Kentucky,” to

fill prescriptions for high doses of oxycodone and oxymorphone written by an out-of-state doctor.

Id. at 112–13. Dr. Smithers told Noel that his clients had trouble filling prescriptions. That did

not stop Noel. He simply charged them as much as ten times what the drugs normally cost and

refused to accept insurance. At times, he filled prescriptions written for members who were not

present. And on several occasions, Noel filled nearly identical prescriptions for members of

Williams’s organization within minutes of each other. Noel did all of this on a “[n]o questions

asked” basis. R.150 at 15. Noel in short did not slow down when he saw these red flags. To the

contrary, he continued apace and even admitted that he “shouldn’t have filled” the prescriptions

for Williams’s operation. R.152 at 131. A rational jury could find that Noel knew he was involved

in a joint venture to distribute drugs outside the usual course of professional practice.

Noel raises two counterarguments. He claims that the government failed to show that Dr.

Smithers issued prescriptions outside professional norms because it failed to present expert

testimony on the issue. But, as noted, there are plenty of situations in which “the lay testimony is

so clear that no expert testimony is required.” Elliott, 876 F.3d at 865. That is this case. Dr.

Smithers charged cash to write prescriptions for large quantities of controlled substances to

customers coming from 250 miles away without conducting proper medical examinations. He

even shipped prescriptions to Williams when bad weather prevented members of the organization

from traveling. This evidence sufficed to show that Smithers prescribed controlled substances

outside professional customs. See id.

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Noel next argues that, even if the government’s red-flag evidence suggests that he

dispensed opioids to patients outside pharmacy conventions, a buyer-seller agreement by itself

does not necessarily “qualify as a conspiracy.” Wheat, 988 F.3d at 308. Fair enough. That may

be true in some settings. But in other settings, including this one, a jury could infer a conspiratorial

agreement between a buyer and seller when the evidence shows repeated purchases of large

quantities of drugs. Id. Several members of Williams’s organization visited Buffalo Drug to fill

prescriptions for large quantities of controlled substances on multiple occasions, some doing so as

many as six times. That suffices.

We affirm.