United States v. Sharon Johnston

322 F. App'x 660
CourtCourt of Appeals for the Eleventh Circuit
DecidedMarch 30, 2009
Docket08-14594
StatusUnpublished
Cited by2 cases

This text of 322 F. App'x 660 (United States v. Sharon Johnston) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Sharon Johnston, 322 F. App'x 660 (11th Cir. 2009).

Opinion

*662 PER CURIAM:

The Controlled Substances Act (“CSA”), 21 U.S.C. § 841, prohibits dispensing controlled substances, unless prescribed “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). Dr. Sharon Johnston was convicted for illegally dispensing: Oxyco-done (the generic name for Roxicodone) and Alprazolam (the generic name for Xa-nax) (Count 1); Oxycodone (Count 2); A-prazolam and Methadone (Count 3); and Oxycodone (Count 4) in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). 1 She was sentenced to 30 months’ imprisonment on each count, to run concurrently. She now appeals.

I. Facts

Johnston was an osteopathic physician, specializing in neurology, working in Naples, Florida. In 2007, a medical malpractice investigator with the State of Florida Department of Health received information that Johnston may have been unlawfully proscribing narcotics. She transmitted this information to Amber Baginski, a detective with the Naples Police Department that was assigned to the Drug Enforcement Administration (“DEA”) as a task force officer. The DEA instituted an investigation and sent three undercover detectives into Johnston’s office posing as patients. They were all instructed not to bring any medical files, prescription bottles, or “show proof that they had had any kind of medical exam or had been given any prescriptions.” On the basis of the evidence gained from these visits, Johnston was indicted and tried.

The three undercover detectives testified at trial. The substance of their testimony was as follows: Mark Schaible, posing as Marcus Damm, visited Johnston’s office on June 11, 2007. 2 Schaible complained of back pain, told Johnston that he was injured while exercising at the gym, and that he had pain radiating down his leg. Schaible told Johnston that he worked in Daytona, but when Johnston commented on the long distance her traveled to see her, Schaible stated that he was staying with his mother in nearby Fort Myers. Johnston told Schaible that he had a “herniated disk back there that’s causing all the pain” and that “[sjooner or later” he would need an MRI, but she did not immediately recommend that he get one done. Schaible testified that certain statements that he made to Johnston were intended to act as “red flags,” including: (1) he was previously a patient of Dr. Pizarro, who was under indictment for soliciting sex in exchange for narcotics; and (2) he had been “bumming” medications from his friends. Johnston tested Schai-ble’s reflexes, had him extend his arms and touch his fingertips, and checked his blood pressure. Johnston only looked at Schai-ble’s back when discussing his tattoos. She did not otherwise touch his back, perform any other tests, or recommend an x-ray.

Schaible informed Johnston he was taking four to five Roxicodone tablets per day. Johnston replied, “I don’t know how much you’re getting, or where you’re getting it from. Which is fine.” Schaible also told Johnston that he was taking two to three 1-milligram tablets of Xanax per day, which Johnston noted was a lot. Johnston commented that Schaible’s blood pressure was low, attributing this to the fact that he was probably “nice and mellow” from the Roxicodone and Xanax. Schaible also commented, “I always kind of wondered *663 why you can go into a store and buy a gallon of vodka and a carton of cigarettes, you can have a good time, but you can’t take a pain pill.” Schaible paid cash for the cost of his visit and left Johnston’s office with prescriptions for 150 15-milli-gram tablets of Roxicodone and 90 1-milli-gram tablets of Xanax.

Schaible had a follow-up appointment scheduled for July 9, but “to throw up another red flag” he called three weeks after his first appointment, claiming that he ran out of his medication, even though the prescription should have lasted longer. The appointment was moved to July 5. At this visit, Schaible complained that his pain was too high, that the Roxicodone was not working, and that he had been receiving 40-milligram Methadone wafers from his friend. Johnston acknowledged that Methadone is “pretty powerful stuff’ and “real hard core,” and that moving from 15 to 40-milligrams is “quite a jump.” Schai-ble explained that he took Methadone as often as six times per day, but that he only bought twenty pills off of his friend because “he needs to make some money too.” Johnston did not examine Schaible at all during the visit and wrote him a prescription for 150 40-milligram Methadone wafers and refilled his Xanax prescription.

Amber Baginski, who posed as Amber Needles, was the second patient in the investigation. She testified that on June 27, 2007, she arrived at Johnston’s office and noticed that several patients in the waiting room appeared to be high. Bagin-ski was taken to an examination room, where she met Johnston. 3 She told Johnston that she had been a patient of Dr. Pizarro and that, due to general back pain, she had been taking 15-milligram Roxico-done tablets. 4 Johnston asked whether Baginski had fallen or been in an accident, and when Baginski said no, Johnston responded that most patients tell her the pain resulted from one of these incidents. Johnston checked Baginski’s reflexes, blood pressure, and had her touch her fingertips, but did not examine Baginski’s back or perform any other tests. As Bag-inski held out her hands, Johnston asked, “Doesn’t the pain radiate down your legs?” Baginski believed Johnston was “telling me what I needed to say in order to obtain the pain medication.” When Baginski confirmed that the pain radiated, Johnston gave her a prescription for 90 15-milli-gram tablets of Roxicodone. According to Baginski, the entire examination lasted less than five minutes.

Donald McDougall, who posed as Donald Nieczticz, was the final patient in the investigation. On July 10, 2007, he visited Johnston’s office, where he explained to Johnston that he had experienced pain in the past, but was not currently suffering any pain. 5 Johnston asked if McDougall had an MRI and he told her that although he had, it did not reveal anything. McDougall told Johnston that he had a doctor near his home in the Florida Keys and that he was currently taking 20-milli-gram Oxycontin tablets, to which Johnston replied, “you can’t take that. You’re overmedicated.” Nonetheless, Johnston did not follow-up about the distance McDou-gall traveled to see her, the name of his regular physician, or when he last had his prescription filled. As with the other patients, Johnston tested McDougall’s reflex *664 es, checked his blood pressure, and had him hold out his arms and touch his fingertips, but did no further examinations. McDougall testified that most of the fifteen-minute examination was spent discussing fishing and real estate.

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Bluebook (online)
322 F. App'x 660, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-sharon-johnston-ca11-2009.