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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-14182 ________________________
D.C. Docket No. 6:16-cr-00187-CEM-TBS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN MATTHEW GAYDEN, JR.,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(October 9, 2020)
Before MARTIN, ROSENBAUM, and TALLMAN,∗ Circuit Judges.
TALLMAN, Circuit Judge:
∗Honorable Richard C. Tallman, United States Circuit Judge for the Ninth Circuit, sitting by designation. USCA11 Case: 18-14182 Date Filed: 10/09/2020 Page: 2 of 16
Dr. John Gayden, Jr., was convicted of seven counts of unlawful distribution
of a controlled substance related to his prior medical practice, which the evidence
showed attracted an unusually high volume of drug-seeking patients. He now
appeals his conviction and sentence, raising a series of challenges to the district
court’s pretrial rulings and the sentence imposed. We affirm his conviction and
sentence.
I
Gayden practiced in Indialantic, Florida for many years. In October 2011,
the Florida Department of Health closed Gayden’s medical practice and he later
surrendered his medical license. Around the same time, law enforcement began to
investigate Gayden’s medical practice based on tips that he was prescribing
excessive amounts of Oxycodone. Drug Enforcement Administration Special
Agent Eva Sala led the investigation of Gayden and his patients by reviewing
automated prescription records through Florida’s Prescription Drug Monitoring
Program (PDMP).
The PDMP is an electronic database administered by the State of Florida. It
collects records statewide of controlled substances prescriptions from prescribers
and pharmacies into a single location, allowing medical professionals to review a
patient’s controlled substances prescription history as a way to deter abusive drug-
seeking and “doctor shopping.” Law enforcement officers may apply to obtain
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access to the PDMP for criminal pharmaceutical investigations. Once granted
access, an officer can electronically search through prescription records and filter
them by category to look for trends in the type, frequency, and dosage of
prescriptions written by a specific physician or filled at a particular pharmacy.
Through her review of the PDMP, Agent Sala discovered Gayden had a
history of irregular prescribing practices, including issuing scripts for opioids in
higher quantities, of greater potency, and in greater frequency than the norm.
Based on this information, she obtained a state search warrant for twelve of
Gayden’s patient records, which Gayden had stored at his mother’s home. Later,
Agent Sala obtained a federal search warrant for the remaining patient records
stored there. Law enforcement also issued administrative subpoenas to
pharmacies, conducted surveillance on Gayden’s clinic, obtained audio and video
recordings from undercover patient visits to Gayden’s clinic, and obtained
information from some of Gayden’s patients and employees regarding Gayden’s
prescribing practices. The investigation disclosed long lines of patients waiting to
get into Gayden’s office and officers learned the doctor insisted on cash only to
pay for his services.
In September 2016, just before the five-year statute of limitations ran, a
federal grand jury indicted Gayden on seven counts of unlawful distribution of a
controlled substance, in violation of 21 U.S.C. § 841(a)(1). During pretrial
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proceedings, Gayden moved to dismiss the indictment for unreasonable
investigative delay, to suppress the evidence obtained from Agent Sala’s search of
the PDMP and Gayden’s patient records, and to exclude evidence from the
government’s proposed trial expert, Dr. Gary Reisfield. The district court denied
each of Gayden’s motions.
The jury convicted Gayden on all seven counts of the indictment. At the
sentencing phase, the district court calculated Gayden’s Sentencing Guideline
range between 235 and 293 months of imprisonment. Gayden presented mitigating
evidence concerning his age, medical and mental conditions, and increased
vulnerability in a prison setting. Before pronouncing sentence, the district judge
characterized his actions by referring to him as an “arrogant monster.” The district
court then sentenced Gayden to 235 months’ imprisonment. Gayden timely filed a
notice of appeal.
II
A
Gayden first challenges the district court’s denial of his motion to dismiss
the indictment for pre-indictment delay. “We review the district court’s denial of
[a] motion to dismiss the indictment for an abuse of discretion.” United States v.
Pielago, 135 F.3d 703, 707 (11th Cir. 1998).
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Gayden argues the government’s delay in bringing the indictment violated
his Fifth Amendment rights.1 To establish a violation of a defendant’s Fifth
Amendment rights, the defendant must show that “pre-indictment delay caused
him actual substantial prejudice and that the delay was the product of a deliberate
act by the government designed to gain a tactical advantage.” United States v.
Foxman, 87 F.3d 1220, 1222 (11th Cir. 1996). Addressing the first element,
Gayden asserts that he was prejudiced by his inability to call his mother and his
former office manager as trial witnesses, as both individuals died after the relevant
conduct but before trial, and by the destruction of records obtained under
administrative subpoenas. Even assuming Gayden shows prejudice here, he still
must show a deliberate act by the government designed to gain a tactical advantage
over him.
Gayden correctly notes that he is not obligated to prove bad faith on the
government’s part, but “[t]he critical element is that the government makes a
judgment about how it can best proceed with litigation to gain an advantage over
the defendant and, as a result of that judgment, an indictment is delayed.”
Foxman, 87 F.3d at 1223 n.2. Here, Gayden offers conclusory assertions about the
1 Gayden also raises a Sixth Amendment challenge to the pre-indictment delay. The Sixth Amendment has not been applied to pre-indictment delay. See United States v. Marion, 404 U.S. 307, 315 (1971). Moreover, Gayden failed to raise this issue below. We decline to consider this argument for that reason. Haygood v. Auto-Owners Ins. Co., 995 F.2d 1512, 1515 (11th Cir. 1993). 5 USCA11 Case: 18-14182 Date Filed: 10/09/2020 Page: 6 of 16
government’s timeline and never disputes the government’s claim that a two-year
delay during the pre-indictment period was at least partially caused by the need to
retain a new expert. At best, Gayden’s position can be summed up as “the
government failed to explain the delay” – which places the burden on the wrong
party – and “the government should have completed its investigation more
quickly” – which does not adequately show a “tactical delay.” The district court
did not abuse its discretion in denying Gayden’s motion to dismiss the indictment
for pre-indictment delay.
B
Gayden next argues the district court erred in denying his motions to
suppress evidence obtained from Agent Sala’s search of the PDMP and of patient
files stored at Gayden’s mother’s home. “A denial of a motion to suppress
involves mixed questions of fact and law. We review factual findings for clear
error, and view the evidence in the light most favorable to the prevailing party. We
review de novo the application of the law to the facts.” United States v. Barber,
777 F.3d 1303, 1304 (11th Cir. 2015) (citations omitted).
Gayden contends the district court should have suppressed the government’s
evidence obtained from the PDMP because the government should have obtained a
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warrant before searching the PDMP.2 He argues the third-party doctrine, generally
allowing warrantless searches of information disclosed to others, should not extend
to his prescribing records because the nature of the PDMP raises concerns under
Carpenter v. United States, 138 S. Ct. 2206 (2018).
The Fourth Amendment safeguards “[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and
seizures.” U.S. Const. amend. IV. It “protects people, not places. What a person
knowingly exposes to the public, even in his home or office, is not a subject of
Fourth Amendment protection.” Katz v. United States, 389 U.S. 347, 351 (1967).
“[T]he application of the Fourth Amendment depends on whether the person
invoking its protection can claim a ‘justifiable,’ a ‘reasonable,’ or a ‘legitimate
expectation of privacy’ that has been invaded by government action.” Smith v.
Maryland, 442 U.S. 735, 740 (1979).
Under the third-party doctrine, an individual lacks a reasonable expectation
of privacy “in information ‘revealed to a third party and conveyed by [that third
party] to Government authorities, even if the information is revealed on the
assumption that it will be used only for a limited purpose and that confidence
2 Gayden’s opening brief also purports to challenge the government’s use of administrative subpoenas. Gayden argued below that the government improperly used administrative subpoenas to obtain information from pharmacies, airlines, hotels, and a cell service provider. However, he fails to develop any argument on this subject on appeal. Accordingly, Gayden has waived any challenge to the administrative subpoena issue. See United States v. Sperrazza, 804 F.3d 1113, 1125 (11th Cir. 2015). 7 USCA11 Case: 18-14182 Date Filed: 10/09/2020 Page: 8 of 16
placed in the third party will not be betrayed.’” Presley v. United States, 895 F.3d
1284, 1291 (11th Cir. 2018) (quoting United States v. Miller, 425 U.S. 435, 443
(1976)). But the Supreme Court in Carpenter declined to extend the third-party
doctrine to cell-site location information, holding that “a warrant is required in the
rare case where the suspect has a legitimate privacy interest in records held by a
third party.” 138 S. Ct. at 2222. The Court reasoned that “[g]iven the unique
nature of cell phone location records, the fact that the information is held by a third
party does not by itself overcome the user’s claim to Fourth Amendment
protection.” Id. at 2217. It further stressed that its holding “is a narrow one,” with
specific consideration given to “the unique nature of cell phone location
information,” id. at 2220, which “provides an intimate window into a person’s
life,” id. at 2217. Accordingly, Carpenter does not, on its face, apply to Gayden’s
prescribing records.
However, Carpenter reiterates that two primary rationales underlie the third-
party doctrine: the nature of the information sought and the voluntariness of the
exposure to third parties. Id. at 2219–20. We consider Gayden’s argument
through this lens.
First, Gayden maintains no special privacy interest in his prescribing
records. Gayden attempts to vicariously assert a privacy interest here based on the
sensitive and confidential nature of his patients’ medical records. Although
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individual patients might arguably have a stronger basis to assert such a privacy
interest in their own medical information, Gayden in his role as the prescriber does
not have a similar privacy interest in the prescription records of his patients.
“[T]he Fourth Amendment’s ultimate touchstone is reasonableness.” Brigham
City, Utah v. Stuart, 547 U.S. 398, 398 (2006) (internal quotation marks omitted).
Gayden cannot reasonably assert a privacy interest in his prescribing records that is
solely derived from other people’s interest in the confidential nature of their own
medical information which they choose to disclose to a pharmacist to get filled.
Second, Gayden’s disclosure of his prescribing records to third parties was
voluntary. Gayden was not required to participate in the PDMP system. Instead,
Gayden volunteered by enrolling as a participant in the automated system, which
was specifically designed to share his prescription records between health care
providers and pharmacies to combat the statewide opioid crisis. Moreover, the
third-party doctrine applies “even if the information is revealed on the assumption
that it will be used only for a limited purpose and the confidence placed in the third
party will not be betrayed.” Miller, 425 U.S. at 443. It is true that Gayden
disclosed his prescribing records on a limited basis, but that does not make the
disclosure involuntary. Indeed, the prescriptions Gayden wrote for his patients
were, by their very nature, intended to be revealed to others when they were
disclosed by the physician and the patients to the pharmacies which filled them.
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Because on this record Gayden did not have a reasonable expectation of
privacy in the prescriptions he wrote for his patients, and because Gayden
voluntarily disclosed those prescription records to others through his participation
in the computerized tracking system, he fails to establish why Carpenter’s
rationale should extend to shield from state public health and law enforcement
authorities his patient prescription records. Instead, the prescription records are
third-party material and the district court did not err in denying his motion to
suppress the evidence obtained without a warrant from the PDMP system.
Gayden also challenges the search and seizure of the patient medical files
Gayden stored at his mother’s home. His argument is largely devoted to
establishing his standing to challenge the search, although he also minimally
argues that the federal search warrant for these records was not supported by
probable cause because it relied on tainted information obtained through improper
state warrants. This claim is unpersuasive. Even when information obtained from
the improper state search warrants is excised from the affidavit supporting the
federal search warrant, the federal warrant remains amply supported by other facts
establishing probable cause. United States v. Bush, 727 F.3d 1308, 1316 (11th Cir.
2013). Moreover, Gayden develops no argument as to why the good-faith
exception to the exclusionary rule should not apply. See United States v. Taylor,
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935 F.3d 1279, 1289–91 (11th Cir. 2019). The district court did not err in denying
on both grounds Gayden’s motion to suppress evidence obtained from the patient
files stored at his mother’s home.
C
Gayden next argues that the district court erred in denying his motion to
exclude the government’s expert witness, Dr. Gary Reisfield, under the Daubert
standard enshrined in Federal Rule of Evidence 702. Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993). Denial of a Daubert motion is
reviewed for an abuse of discretion, which “places a ‘heavy thumb’ – ‘really a
thumb and a finger or two’ – ‘on the district court’s side of the scale.’” United
States v. Pon, 963 F.3d 1207, 1219 (11th Cir. 2020) (quoting United States v.
Brown, 415 F.3d 1257, 1268 (11th Cir. 2005)). In determining the admissibility of
expert testimony, the trial court must consider whether:
(1) the expert is qualified to testify competently regarding the matters he intends to address; (2) the methodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert; and (3) the testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue.
United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004) (citation omitted).
Gayden contends Dr. Reisfield’s testimony that he overprescribed controlled
substances should have been excluded because the expert witness reviewed
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irrelevant inflammatory information about Gayden before forming his opinion.
Gayden argues Dr. Reisfield’s opinion was thus subject to confirmation bias
rendering it unreliable. But the potential for confirmation bias, to which Gayden
concedes “all persons” are subject, and which the district court properly ruled was
appropriate fodder for cross-examination, does not establish that the district court
abused its discretion in allowing Dr. Reisfield to testify. The fact that defense
counsel had to make a difficult tactical decision to forgo asking questions to
demonstrate bias in formulating his expert opinion, which would have required
eliciting information that would have harmed Gayden if the jury heard it, is not the
kind of Hobson’s choice that mandates striking the expert from testifying. The
district court did not abuse its discretion in denying Gayden’s Daubert motion.
D
Gayden argues that the cumulative effects of the district court’s pretrial and
trial rulings deprived him of a fair trial. Having failed to establish any error,
though, Gayden’s cumulative error argument similarly fails.
E
Gayden raises both procedural and substantive challenges to his sentence.
“We review the interpretation of the Sentencing Guidelines de novo and any
underlying factual findings for clear error. We review whether the district court
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imposed a substantively reasonable sentence for abuse of discretion.” United
States v. Whyte, 928 F.3d 1317, 1327 (11th Cir. 2019) (citations omitted).
First, Gayden contends the district court committed procedural error by
improperly calculating his Sentencing Guidelines range to include a drug quantity
from earlier prescriptions and documentation of medical necessity under a different
formulation of state medical guidelines in violation of the ex post facto clause.
The ex post facto clause prohibits the enactment of statutes which: (1) punish as a crime an act previously committed which was innocent when done[;] (2) make more burdensome the punishment for a crime, after its commission; or (3) deprive one charged with a crime of any defense available according to law at the time when the act was committed.
United States v. De La Mata, 266 F.3d 1275, 1286 (11th Cir. 2001). Gayden
argues that because Florida amended its standard of care guidance for pain
management medicine in October 2010, the district court should not have
considered any prescriptions written by Gayden before the amendment date in its
drug weight calculation. Compare Fla. Admin. Code r. 64B8-9.013 (2010) with
Fla. Admin. Code r. 64B8-9.013 (2003). Gayden carries the burden of showing
that the “change in law presents a ‘sufficient risk of increasing the measure of
punishment attached to the covered crimes’” – which is the “touchstone” of the
court’s inquiry in an ex post facto analysis. Peugh v. United States, 569 U.S. 530,
539 (2013) (citation omitted). We conclude that Gayden has not made such a 13 USCA11 Case: 18-14182 Date Filed: 10/09/2020 Page: 14 of 16
showing despite the differences in language in the Florida Administrative Code.
Because Gayden’s conduct was prohibited under either version of the standard of
care, the district court did not violate the ex post facto clause by considering his
pre-2010 prescriptions in calculating the total drug weight involved in this case.
Second, Gayden contends the district court erred by applying a two-level
obstruction of justice enhancement to Gayden’s offense level. The Sentencing
Guidelines allow for a two-level increase to the offense level where the defendant
willfully obstructed or impeded the administration of justice with respect to the
investigation, prosecution, or sentencing of the instant offense of conviction, and
the obstructive conduct was related to the offense of conviction. U.S.S.G. § 3C1.1.
The district court considered evidence that Gayden made substantial “updates” to
his patient records after the state search warrant for some of his files was executed,
but before the federal search warrant for all of his remaining files was served.
These “updates” purported to document more fulsome patient examinations to
justify writing prescriptions which were not initially recounted in Gayden’s
contemporaneous patient records. Based on this incriminating conduct, going to
the heart of the charges for which he stood trial, the district court did not err in
applying the obstruction of justice enhancement.
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Gayden also argues that his sentence was substantively unreasonable. A
“review for substantive unreasonableness involves examining the totality of the
circumstances, including an inquiry into whether the statutory factors in [18
U.S.C.] § 3553(a) support the sentence in question.” United States v. Gonzalez,
550 F.3d 1319, 1324 (11th Cir. 2008). “We ordinarily expect a sentence within the
Guidelines range to be reasonable, and the appellant has the burden of establishing
the sentence is unreasonable in light of the record and the § 3553(a) factors.” Id.
The appellate court should only vacate the sentence if it is “left with the definite
and firm conviction that the district court committed a clear error of judgment in
weighing the § 3553(a) factors by arriving at a sentence that lies outside the range
of reasonable sentences dictated by the facts of the case.” United States v. Irey,
612 F.3d 1160, 1190 (11th Cir. 2010) (quoting United States v. Pugh, 515 F.3d
1179, 1191 (11th Cir. 2008)).
Gayden contends the district court failed to consider mitigating evidence and
demonstrated personal animus toward Gayden. However, the district court did
consider the evidence Gayden highlights on appeal. Moreover, Gayden’s sentence
is at the low end of his Guidelines range. The district court’s words for Gayden
may have been harsh in addressing the impact of Gayden’s abusive prescription
practices, but they do not leave us with a “definite and firm conviction” that the
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court committed a clear error of judgment. Irey, 612 F.3d at 1190. They
appropriately conveyed the opprobrium of the community harmed by his
misbehavior. The sentence imposed of 235 months was not substantively
unreasonable.
AFFIRMED.