NOT RECOMMENDED FOR PUBLICATION File Name: 20a0723n.06
Case Nos. 19-5894/5911/5943/6032
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED UNITED STATES OF AMERICA, ) Dec 30, 2020 ) DEBORAH S. HUNT, Clerk Plaintiff-Appellee, ) ) ON APPEAL FROM THE v. ) UNITED STATES DISTRICT ) COURT FOR THE EASTERN TIMOTHY DENNIS GOWDER, ANWAR ) DISTRICT OF KENTUCKY MITHAVAYANI, JAMES BRADLEY COMBS, ) and PETE ANTHONY TYNDALE, ) OPINION ) Defendants-Appellants. )
BEFORE: BATCHELDER, CLAY, and BUSH, Circuit Judges.
JOHN K. BUSH, Circuit Judge. Defendants appeal their convictions for several different
charges that arose out of the Drug Enforcement Administration’s investigation of the Tennessee
Pain Institute (TPI). On the surface, TPI was a pain clinic that Defendants Anwar Mithavayani
and Pete Tyndale owned, where Defendant Timothy Gowder served as lead physician, and where
Defendant James Combs obtained prescriptions for drugs. After a twenty-day trial, a jury
deliberated for three days before acquitting each defendant on some charges and convicting them
of others, and fully acquitting the clinic’s other doctor, Dr. Gary Moore. On appeal, Defendants
raise a plethora of challenges. Because we find their arguments unavailing, we affirm their
convictions. Case Nos. 19-5894/5911/5943/6032, United States v. Gowder et al.
BACKGROUND
The United States charged Gowder, Mithavayani, Tyndale, and Moore with conspiracy to
distribute narcotics and conspiracy to launder money, conducting transactions with criminally
derived proceeds under 18 U.S.C. § 1957, and conducting transactions with criminally derived
proceeds with the intent to conceal under 18 U.S.C. § 1956. Combs was charged with participation
in the drug conspiracy and possession of oxycodone with intent to distribute. After a twenty-day
trial and three days of deliberations, the jury acquitted Moore of all charges, acquitted Combs of
the drug conspiracy but convicted him of possession with intent to distribute, and convicted
Gowder, Mithavayani, and Tyndale of the drug conspiracy and some money-laundering charges
but acquitted them of other money-laundering charges. Gowder, Mithavayani, Tyndale, and
Combs appeal the judgments against them.
DISCUSSION
I. Sufficiency of the Evidence
Formally, a defendant receives de novo review of the district court’s denial of a motion for
a judgment of acquittal under Federal Rule of Civil Procedure 29. United States v. Collins, 799
F.3d 554, 589 (6th Cir. 2015). But he still bears “a very heavy burden” because we apply the same
standard that the district court applies in evaluating a Rule 29 challenge to a conviction’s
evidentiary sufficiency. Id. (quoting United States v. Davis, 397 F.3d 340, 344 (6th Cir. 2005)).
Under that standard, we examine the evidence in the light most favorable to the Government, draw
all inferences in the Government’s favor, and resolve every issue of credibility in favor of the
guilty verdict. United States v. Sumlin, 956 F.3d 879, 891 (6th Cir. 2020). As long as “any rational
trier of fact could have found the elements of the offense beyond a reasonable doubt,” we must
affirm. Id. (quoting United States v. Maliszewski, 161 F.3d 992, 1005 (6th Cir. 1998)).
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A. Sufficiency of the Evidence for Conspiracy to Distribute Drugs
To convict a defendant for conspiracy to distribute drugs in violation of 21 U.S.C. § 846,
the Government must prove: (1) an agreement, (2) knowledge of and intent to join the conspiracy,
and (3) participation. United States v. Elliott, 876 F.3d 855, 863 (6th Cir. 2017). Gowder,
Mithavayani, and Tyndale primarily challenge the second prong, arguing that the Government did
not produce sufficient evidence that they knew of and intentionally joined the conspiracy. The
Government does not need to show direct evidence of knowledge; it need only present enough
evidence for “guilty knowledge and voluntary participation [to] be inferred from surrounding
circumstances.” United States v. Sadler, 750 F.3d 585, 593 (6th Cir. 2014) (quoting United States
v. Hodges, 935 F.2d 766, 773 (6th Cir. 1991)).
Sadler, for example, held that a defendant had knowledge that he was participating in a
drug-distribution conspiracy because he continued to operate two branches of a pain
clinic “after previous clinics had been shut down and after the DEA searched his home and office
in 2008.” Id. Similarly, in United States v. Chaney, evidence showing that a non-doctor knew that
a doctor had used pre-signed prescriptions, and that the non-doctor had distributed those slips on
occasion, sufficed to establish a conspiracy to distribute drugs. 921 F.3d 572, 592 (6th Cir. 2019).
And in Elliott, we held that a security guard’s efforts to impede investigators’ efforts by clearing
the parking lot of patients, chasing off the investigators, and warning patients of their presence
sufficed to show knowing participation in the conspiracy. 876 F.3d at 863. In light of those
precedents, it is clear that the Government had sufficient evidence to support Mithavayani’s,
Gowder’s, and Tyndale’s convictions.
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1. Mithavayani and Tyndale
Mithavayani and Tyndale both argue that they were, in effect, unwitting owners who did
not know what their doctors were doing and were not qualified to understand the medical aspects
of the clinic’s practice. They claim that their convictions rely on a respondeat superior theory that
criminal law does not permit. But their arguments disregard a significant body of evidence that
the two men had a background in a Florida pill mill, carefully designed the clinic to avoid detection
by law enforcement (and instructed an employee to lie to investigators when that design failed),
knew of their doctors’ dubious prescribing practices, and sought to recreate TPI in North Carolina
when the DEA shut TPI down. That evidence sufficiently supports the jury’s verdict, so we must
affirm.
As an initial matter, the Government thoroughly proved that TPI was a pill mill. The jury
heard patient after patient describe their hours-long drives to get to TPI, where they paid with cash
or card (TPI did not accept insurance) and left with a prescription for large quantities of painkillers
after a minutes-long visit with Gowder or Moore. It heard a manager describe how complaint
forms about patients’ abusing or selling drugs just piled up on her desk, rarely leading to discharge.
It heard of a policy instructing staff to schedule as many as eight patients per hour. It heard a
veteran police officer’s expert testimony about the numerous “red flags” the facility raised. And,
finally, it heard an expert pain doctor’s testimony that every single file he examined showed
amounts and combinations of drugs prescribed that were never appropriate and served no
legitimate medical purpose. Although Defendants attempted to impeach the experts, we must
credit the experts’ analysis at this stage. See Sumlin, 956 F.3d at 891. Thus, the question that
remained for the jury was whether Mithavayani and Tyndale were oblivious to their business’s
true nature.
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First, the Government presented extensive evidence about an earlier pill mill in Florida
with which Tyndale was intimately involved. The district court described that operation as the
“headwaters of the [TPI] conspiracy.” The jury heard sufficient testimony to credit that view, so
we must do the same. Jenna Crawley, Tyndale’s ex-girlfriend, described Tyndale’s association
with that pill mill, an operation in which her involvement led to jail time. For example, Tyndale
ran a cash-only MRI business out of a strip-club parking lot that catered to out-of-town customers
on their way to pill mills. Tyndale even advertised in those pill mills, and when one pill mill
moved north to Jacksonville, he was integral in recruiting new customers for it. Most damningly,
when he connected Crawley to the pill mill, the owner immediately made her a part owner on
paper. Crawley explained that she had to be the part owner because “Pete couldn’t own an MRI
facility and a pain clinic.” Finally, Crawley described how Tyndale had told her of his plan to
open a new “clinic” closer to the many out-of-state patients who traveled to Florida for drug
prescriptions. When he learned that the DEA had shut down the Florida pill mill, he even told her
that he thought he could bring some of its patients to the clinic he planned to open. The jury could
easily conclude that Tyndale knew what he was doing.
Although the prosecution did not connect Mithavayani as closely to the Florida pill mill,
Crawley did testify that Mithavayani had serviced Tyndale’s pill-mill-serving MRI business, and
that “ever since I’ve known Pete, he’s had dealings with [Mithavayani].” Given that connection,
the jury could reasonably infer that Mithavayani had some knowledge of Tyndale’s dealings in
Florida. We must respect that inference. See Sumlin, 956 F.3d at 891.
Second, when Tyndale and Mithavayani came to Tennessee to start TPI, they hired a staff
with no clinical experience, then failed to train them in the types of work—pill counts, recognizing
abuse, etc.—that pain-clinic staff would need. For example, they hired Julie Hankins, who had a
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degree as a surgical technician, away from her job in fast food and immediately made her the
clinic’s manager. For the lead physician they hired Gowder, who had retired from a thirty-plus-
year career as an obstetrician and had no experience in pain management.
Third, the owners then implemented a set of rules and policies that the Government’s
expert, Officer Dalrymple, considered “red flags.” For example, TPI did not take insurance and
accepted prepaid debit cards instead of exclusively taking cash because, according to the
Government’s expert, too much cash would raise eyebrows at banks. The only treatment TPI
offered was painkiller prescriptions. Many of its patients traveled hundreds of miles, often in
groups to get those prescriptions. And many of those patients had come from pain clinics that law
enforcement had shut down. TPI also had very limited medical equipment. It required urine
screens and MRIs to “paper the files,” but it generally ignored the results. And it paid doctors per
patient. When the DEA investigators began to ask questions, Tyndale even instructed one
employee to lie about that suspicious pay structure. The red flags piled up high enough for the
jury to reasonably find that Mithavayani and Tyndale implemented those policies to create an
efficient pill mill that retained enough of a veneer of legitimacy to avoid investigation.
Fourth, Mithavayani and Tyndale also had ample notice of their doctors’ problematic
prescribing practices. They learned that their doctors may have been overprescribing pills in 2012,
early in TPI’s existence, because the Tennessee Department of Health began to investigate Gowder
and Moore. The two owners dutifully paid the doctors’ legal fees throughout the four-year
proceedings, but they did nothing to curb the doctors’ over-prescribing. The Department of Health
investigation ended only when the doctors reached a settlement by acknowledging that their
prescription practices were “not medically necessary, advisable, or justified.”
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Finally, when the Government closed TPI, Tyndale and Mithavayani moved the operation
to North Carolina because, as the two owners told one employee, “the laws were not as strict”
there. They invited their TPI patients to follow, and moved doctors around to ensure that former
TPI patients would receive the kinds of prescriptions that justified traveling all the way to North
Carolina. The jury could easily conclude that those were not the acts of innocent men.
In short, a reasonable jury—after sitting through twenty days of that evidence—could
conclude that Tyndale and Mithavayani knew they were part of a conspiracy to distribute drugs.
2. Gowder
In United States v. Geralt, we held that a doctor issuing excessive prescriptions with little
information about each patient permitted the jury to infer that the doctor knew he was part of a pill
mill. 682 F. App’x 394, 401–02 (6th Cir. 2017). The same logic applies here with perhaps greater
force.
The jury heard testimony that Gowder performed extremely cursory medical examinations
before prescribing large quantities of drugs. That closely tracks the facts of Geralt. Moreover,
Dr. Eason, an expert witness on pain management, testified that every single file he reviewed—30
randomly selected, 12 chosen by the Government—showed illegitimate prescribing practices, with
amounts and combinations of drugs that served no legitimate medical purpose. Finally, the jury
learned that Gowder had given a sworn statement to the Tennessee Board of Medical Examiners
admitting to prescribing controlled substances without medical justification. Hearing that
evidence, a reasonable jury could conclude that Gowder knew he was part of a drug-distribution
conspiracy.
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B. Sufficiency of the Evidence for Money Laundering Under 18 U.S.C. § 1957
18 U.S.C. § 1957 criminalizes knowingly engaging in a transaction in “property of a value
greater than $10,000” that is derived from specified unlawful activity. Defendants argue that the
Government had an obligation to trace the money to show that at least $10,000 of the funds actually
came from criminal behavior, as opposed to innocent treatment efforts. There is a circuit split on
that question, one we have declined to take a side on in the past. See United States v. Jamieson,
427 F.3d 394, 404–05 (6th Cir. 2005). We similarly decline to decide the issue here because
Defendants’ argument has a fatal flaw: they had no lawful income that the Government needed to
separate out.
At trial, the Government produced sufficient evidence for the jury to conclude that TPI was
purely a pill mill without any legitimate medical ends. For example, the Government’s expert, Dr.
Eason, testified that not one of the 42 files he reviewed showed legitimate medical work. The
overall prescribing figures supported his conclusions, showing that 90% of TPI’s prescriptions
were for oxycodone, Xanax, and oxymorphone. In addition, as discussed above, the testimony
from patients and employees saying that TPI was nothing more than a pill mill was overwhelming.
Patients told harrowing tales of driving hours to get to TPI, paying with a debit card, and leaving
with a prescription for large quantities of painkillers after only a minutes-long visit with Gowder
or Moore.
The jury’s acquittal of Moore does not undermine the likelihood that it concluded that TPI
was nothing more than a pill mill. As the district court noted in its opinion denying Mithavayani
and Tyndale’s Rule 29 motion, “[t]he jury could have found (and, as the Court views the full
record, likely did find) that Moore, though working and generating income for a drug trafficking
conspiracy, was not a knowing and voluntary participant in the criminal enterprise.” That one
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doctor did not know he was furthering a criminal conspiracy does not negate that conspiracy’s
existence; it negates only Moore’s guilt.
Gowder also challenges the propriety of venue in the Eastern District of Kentucky for his
counts under 18 U.S.C. § 1957. Venue for a § 1957 charge is proper in “any district where a
prosecution for the underlying specified unlawful activity could be brought, if the defendant
participated in the transfer of the proceeds of the specified unlawful activity from that district to
the district where the financial or monetary transaction is conducted.” United States v. Myers,
854 F.3d 341, 349 (6th Cir. 2017) (quoting 18 U.S.C. § 1956(i)(1)(B)). The “underlying specified
unlawful conduct” for the § 1957 counts was distribution of a controlled substance in violation of
21 U.S.C. §§ 841(a)(1) and 846. Gowder disputes only whether he participated in the transfer of
funds from the Eastern District of Kentucky to Tennessee. The Government had the burden to
establish his participation by a preponderance of the evidence and “[s]ince the jury found that the
government did so, . . . we can only reverse if no rational juror could have come to that conclusion.”
United States v. Petlechkov, 922 F.3d 762, 769 (6th Cir. 2019).
Although participation presents a close question, a jury could reasonably have concluded
that by knowingly prescribing drugs to patients who would sell them in the Eastern District of
Kentucky and bring the money back to TPI for more prescriptions, Gowder participated in the
transfer of proceeds from the Eastern District of Kentucky to Tennessee. The jury saw sufficient
evidence to conclude that Gowder knew his patients were selling drugs, so it could infer his
knowing participation in the transfer of drug proceeds by a preponderance of the evidence.
C. Sufficiency of the Evidence for Conspiracy to Commit Money Laundering Under 18 U.S.C. § 1956
Only Mithavayani challenges his and Tyndale’s conviction for conspiracy to commit
money laundering under 18 U.S.C. § 1956. The Government can prove conspiracy to commit
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money laundering under either a promotional theory, see 18 U.S.C. § 1956(a)(1)(A)(i), or a
concealment theory, see id. § 1956(a)(1)(B)(i). A concealment theory requires the Government to
show that Mithavayani and Tyndale conspired to conduct a financial transaction with criminal
proceeds, knowing that the transaction was designed, “in whole or in part, to conceal or disguise
the nature, location, source, ownership, or control of the money.” United States v. Agundiz-
Montes, 679 F. App’x 380, 387 (6th Cir. 2017) (quoting United States v. Reed, 264 F.3d 640, 650–
51 (6th Cir. 2001)). A promotion theory requires the Government to show that Mithavayani and
Tyndale conspired to conduct a financial transaction that involved the proceeds of unlawful
activity with the intent to promote the underlying criminal activity. Id.
Mithavayani initially contends that the jury was not properly instructed on a promotion
theory. He failed to challenge the instruction below, so we can reverse only if “taken as a whole,
the jury instructions were so clearly erroneous as to produce a grave miscarriage of justice.”
United States v. LaVictor, 848 F.3d 428, 454 (6th Cir. 2017) (quoting United States v. Newsom,
452 F.3d 593, 605 (6th Cir. 2006)). Taking the jury instructions as a whole, the jury received
instruction on the promotion theory. In the conspiracy instruction, the district court referenced
both Count Five of the superseding indictment, which laid out both theories, and its earlier
substantive instruction on § 1956 money laundering, which also described both a promotion theory
and concealment theory. Those references sufficiently presented the promotion theory to the jury.
And Mithavayani’s guilt on a promotion theory is clear. We can affirm a promotion
conviction when the defendant reinvested criminally derived proceeds into the illegal activity that
generated the proceeds. United States v. Cosgrove, 637 F.3d 646, 654 (6th Cir. 2011). Here,
Mithavayani did just that, reinvesting proceeds from TPI into keeping TPI running.
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II. Evidentiary Challenges
We review challenges to the district court’s decision to admit evidence for an abuse of
discretion. A district court abuses its discretion when it applies the wrong legal standard,
misapplies the legal standard, or relies on clearly erroneous findings of fact. Collins, 799 F.3d at
570.
A. Evidence of the Florida Pill Mills
The Government introduced extensive evidence detailing Tyndale’s involvement in a pill
mill in Florida and testimony tying Mithavayani to Tyndale during that period. Tyndale and
Gowder contend that the Florida evidence was improper “other acts” evidence under Rule 404(b).
But the district court determined as a factual matter that the Florida pill mill actually constituted
the beginning of Tyndale and Mithavayani’s drug-distribution conspiracy, a conspiracy that then
included running TPI and the North Carolina clinic. If that finding was correct, then this evidence
was “evidence relating to the background of the charged offense, known as ‘res gestae evidence,’”
that was directly probative. United States v. Sumlin, 956 F.3d 879, 889 (6th Cir. 2020).
We only disturb a district court’s finding of fact if it is clearly erroneous. Evidence is
clearly erroneous if it strikes the court as “more than just maybe or probably wrong; it must strike
us as wrong with the force [of] a five-week-old, unrefrigerated dead fish.” United States v.
Lanham, 617 F.3d 873, 888 (6th Cir. 2010) (quoting United States v. Perry, 908 F.2d 56, 58 (6th
Cir. 1990)). The district court’s determination that Tyndale’s involvement in the Florida pill mill
constituted the “headwaters” of the conspiracy does not meet that standard. Crawley’s testimony
about Tyndale’s intent to bring patients from the Florida pill mill to TPI justifies the district court’s
finding that the Florida evidence constituted the start of the conspiracy. And even though Gowder
did not join the conspiracy until TPI opened, “[i]t has long been established that a conspirator may
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join a conspiracy already in progress and be held responsible for actions done in furtherance of the
conspiracy before he joined.” Collins, 799 F.3d at 579 (quoting United States v. Robinson, 390
F.3d 853, 882 (6th Cir. 2004)).
B. Admitting Officer Dalrymple’s Expert Testimony
Tyndale contends that although this court often allows law enforcement to testify as
experts, the district court abused its discretion by permitting Officer Dalrymple to testify because
his analysis was insufficiently reliable under Daubert. But rigidly applying Daubert makes little
sense in this context. See Surles ex rel. Johnson v. Greyhound Lines, Inc., 474 F.3d 288, 295 (6th
Cir. 2007). Daubert is a case about scientific expertise. Thus, although district courts “may
consider one or more of the more specific factors that Daubert mentioned when doing so will help
determine” an expert’s reliability, “Daubert’s list of specific factors neither necessarily nor
exclusively applies to all experts or in every case.” Kumho Tire Co., Ltd. v. Carmichael, 526 U.S.
137, 141 (1999). The district court reasonably looked beyond those factors here.
The district court permitted Officer Dalrymple to testify because it found that his expertise
on the characteristics of a typical pill mill would aid the jury. In making its determination, it
looked to his “personal knowledge or experience” rather than the Daubert factors, an approach we
approved in Surles. 474 F.3d at 295. And Officer Dalrymple had ample experience, including
fifteen years in law enforcement, numerous drug-trafficking investigations, and more than a dozen
pill-mill investigations. That experience justified the district court’s reliability determination.
C. Rule 403 Challenges
A district court may properly exclude evidence under Federal Rule of Evidence 403 if “its
probative value is substantially outweighed by a danger of” unfair prejudice, misleading the jury,
or harms to a fair and efficient trial. When reviewing the district court’s application of that already
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high bar, we must give evidence “its maximum reasonable probative force and its minimum
prejudicial value.” Collins, 799 F.3d at 577 (quoting United States v. Copeland, 321 F.3d 582,
597 (6th Cir. 2003)). Our deference to the district court’s application of an already deferential
standard requires a Herculean labor by Defendants to establish reversible error. Here, none of
Defendants’ arguments are strong enough.
1. Combs’s Phone Call
On a phone call from prison, in the midst of a fairly mundane conversation, Combs angrily
called two men who provided evidence against him—one who directed the police to his house, the
other who filled out a statement for the police—“rats” and “cheese-eaters” and accused one of
them of “signing statements” and “stabbing him in the back.” The district court found that those
statements showed consciousness of guilt because “[a]ny time a person is complaining about
someone who has allegedly ratted, especially with the—the vigor and intensity reflected on the
call, that is strong evidence that there—arguably there is something nefarious to be ratted on
about.” Combs testified that he was also angry at one of the men for, in Combs’s mind, breaking
up his marriage. But the presence of a mixed motive for his diatribe does not sufficiently
undermine its probative force that the risk of prejudice from his portrayal as “angry, vengeful, and
perhaps dangerous” would substantially outweigh that probative value.
2. Prospective Hire’s Arrest for Drug Distribution
The district court admitted evidence that a doctor whom TPI had hired was arrested for
participating in a Florida pill mill before he could begin to work at TPI. It found the evidence
relevant both to TPI’s hiring practices and to the type of doctor that TPI attracted. Giving the
evidence its maximum probative force in those regards, it is difficult to say that the district court
abused its discretion in concluding that the risk of prejudice from guilt by association did not
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substantially outweigh the evidence’s probative value. A reasonable jury could find that Tyndale
and Mithavayani knew they were running a pill mill, given that TPI recruited a doctor whose
curriculum vitae displayed inconsistent work history, high patient volume, and per diem
employment from the Florida-pill-mill scene that Tyndale knew well. And the fact that such a
doctor would want to work at TPI has some probative value, limited as it may be, to prove that
TPI had noticeable indicators of being a pill mill.
D. Gowder’s cumulative error challenge
Unlike the other Defendants, Gowder does not argue that any one supposed evidentiary
error so prejudiced him that it warrants reversal of his conviction. Instead, he argues that here,
“the cumulative effect of errors that are harmless by themselves” was so prejudicial as to warrant
a new trial. See United States v. Sypher, 684 F.3d 622, 628 (6th Cir. 2012). To win such a
challenge, a defendant must show that the cumulative effect of the errors was so extreme that it
deprived the defendant of his constitutional right to due process of law. Id. Here, Gowder fails
even to show error, let alone such egregious error as to constitute a denial of due process.
1. The Transcripts and Findings from the Tennessee Department of Health
Gowder challenges the admission of his express, sworn statements that he had issued
prescriptions that were “not medically necessary, advisable, or justified,” arguing that the district
court abused its discretion in declining to find that evidence was substantially more prejudicial
than probative. To describe the argument suffices to show its futility; a sworn statement that he
knowingly overprescribed drugs is highly probative evidence of his knowledge that TPI was a pill
mill. To the extent that the lower standard of proof in the civil proceeding could have caused juror
confusion, the district court gave a jury instruction to clarify the difference.
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2. The Rite-Aid Letter
Gowder next challenges the admission of a letter from Rite-Aid, a pharmacy chain,
informing him that it would no longer fill prescriptions from TPI because it had concerns about
prescription drug abuse. He contends that the letter was inadmissible hearsay. The district court
admitted the letter as non-hearsay evidence that Gowder had notice that clients were abusing his
prescriptions. As discussed above, Gowder’s primary defense against the conspiracy charge was
his argument that he did not know TPI was a pill mill. Relevant rebuttal to that contention was
notice that a pharmacy would no longer fill TPI’s prescriptions. Thus, the letter was not used for
a hearsay purpose.
Because two of Gowder’s three assignments of error fail, and he acknowledges that the
individual effect of each error does not warrant reversal, we need not reach his argument about the
evidence of patients’ other drug conspiracies.
III. Other Trial Challenges
A. Gowder’s Severance Motion
Gowder did not move for severance until six months after the deadline for defensive
motions. The district court did not abuse its discretion in denying such an untimely motion. See
United States v. Wilson, 972 F.2d 349, *4 (6th Cir. 1992) (unpublished table decision).
B. Deliberate-Ignorance Instruction
Mithavayani argues that the district court abused its discretion by instructing the jury that
it could find that he knew of the conspiracy through evidence of his deliberate ignorance. Courts
may give a deliberate-ignorance instruction if the defendant claims lack of knowledge and the facts
and evidence support an inference of deliberate indifference. United States v. Asker, 676 F. App’x
447, 464–65 (6th Cir. 2017). Here, Mithavayani certainly claimed a lack of knowledge, and the
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evidence laid out above—Gowder and Moore’s Department of Health investigation, patients’
abuse of drugs, his relationship with Tyndale in Florida—would have made it difficult for him not
to learn of TPI’s nature as a pill mill. Therefore, a deliberate-ignorance instruction was proper.
C. Good-Faith Jury Instruction
Mithavayani also argues that the district court committed plain error when it failed to
instruct the jury that Mithavayani could also avail himself of the good-faith defense, which protects
a doctor who writes a prescription in good faith from prosecution for a drug-distribution
conspiracy. To show plain error for a jury instruction, Mithavayani must show that “taken as a
whole, the jury instructions were so clearly erroneous as to produce a grave miscarriage of justice.”
LaVictor, 848 F.3d at 454 (quoting Newsom, 452 F.3d at 605). He cited no authority for the
proposition that the good-faith defense extends to the owners of clinics. It cannot be a grave
miscarriage of justice for a judge to decline to give a novel jury instruction that a party did not
even request.
IV. Sentencing Discussion
We review a sentence’s reasonableness for an abuse of discretion. Gall v. United States,
552 U.S. 38, 46 (2007).
A. Procedural Reasonableness
Gowder challenges the procedural reasonableness of his sentence. A sentence is
procedurally unreasonable if the district court improperly calculates the range under the U.S.
Sentencing Guidelines, treats the Guidelines as mandatory, fails to consider the factors under 18
U.S.C. § 3553(a), bases a sentence on clearly erroneous facts, or fails to adequately explain the
sentence. Id. at 51. We review the findings of fact that undergird a Guidelines determination for
clear error. United States v. Hodge, 805 F.3d 675, 678 (6th Cir. 2015). Gowder challenges two
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aspects of his sentence: the imposition of a leadership enhancement, and the district court’s
calculation of the relevant drug quantity.
Gowder disagrees with the district court’s finding that Moore, whom he supervised, was a
criminal participant in the drug-distribution conspiracy. Despite Moore’s acquittal at trial, the
district court concluded that Moore was a criminal participant based on the lower preponderance-
of-the-evidence standard that applies at sentencing. That finding was not clear error, as ample
evidence at trial showed that Moore overprescribed drugs without regard for the evidence of abuse
that was apparent at TPI. So the leadership enhancement was not procedurally unreasonable.
As for the drug-quantity calculation, Gowder argues that the Government did not offer
sufficiently precise proof of the quantity of drugs attributable to him. We do not reverse the district
court’s determination as to drug quantity unless it is clearly erroneous. United States v. Sadler,
750 F.3d at 593. If the district court cannot determine the precise quantity of drugs, it can make
an estimate as long as a preponderance of the evidence supports its finding. Id. In Sadler, we also
noted that in cases of jointly-undertaken criminal activity, a defendant is responsible for “all
reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken
criminal activity.” Id. at 594 (quoting United States v. Wilson, 168 F.3d 916, 922 (6th Cir. 1999)).
Our recent application of that standard in United States v. Tisdale clarifies it. 980 F.3d 1089 (6th
Cir. 2020). There, we upheld a district court’s decision to estimate the quantity of drugs a gang-
member defendant was responsible for by multiplying the quantity of drugs a gang moved each
day by the number of days that defendant spent in the gang. See id. at 1096–97.
Here, the district court could reasonably have held Gowder responsible for all foreseeable
drug prescriptions from TPI, as it found that all of TPI’s prescriptions were part of the distribution
conspiracy in which Gowder knowingly participated. Instead, it based its sentencing calculation
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on a more modest 25% of the total prescriptions, noting that that quantity sufficed to reach the
highest-base-offense level for drug quantity. That approximation was reasonable. A district court
can “hold a defendant responsible for a certain quantity of drugs” if it can conclude that he “is
more likely than not actually responsible for a quantity greater than or equal to the quantity for
which the defendant is being held responsible.” United States v. Jeross, 521 F.3d 562, 570 (6th
Cir. 2008) (quoting United States v. Walton, 908 F.2d 1289, 1302 (6th Cir. 1990)). The district
court could conclude by a preponderance of the evidence that Gowder was responsible for far more
than 25% of TPI’s prescriptions; thus, its conservative estimate was not procedurally unreasonable.
B. Substantive Reasonableness
A sentence is substantively unreasonable “if it is longer than necessary to achieve the goals
laid out in 18 U.S.C. § 3553(a).” United States v. Lightning, --- F. App’x. ---, 2020 WL 6625029,
at *2 (6th Cir. Nov. 12, 2020). Our substantive-reasonableness review begins with the range the
Sentencing Guidelines recommend because “in the ordinary case,” that range will “reflect a rough
approximation of sentences that might achieve § 3553(a)’s objectives.” Id. (quoting Kimbrough
v. United States, 552 U.S. 85, 109 (2007)).
1. Tyndale
Tyndale’s Guidelines recommendation was 130 years. He received a 29-year sentence,
well below his Guidelines range. We apply a presumption of reasonableness to a within-
Guidelines sentence, so “a defendant attacking the substantive reasonableness of a below-
Guidelines sentence has an even heavier burden to overcome.” United States v. Elmore, 743 F.3d
1068, 1076 (6th Cir. 2014). Tyndale cannot overcome that burden. The district court thoroughly
and thoughtfully explained its reasons for imposing a 29-year sentence. It concluded that
numerous facts justified the lengthy sentence: Tyndale’s role as the conspiracy’s mastermind, the
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fact that the conspiracy distributed 1.6 million oxycodone doses to addicts and drug peddlers, his
clear disregard for the law by opening a new clinic in North Carolina immediately after the DEA
closed TPI, the need to deter people from engaging in such a profitable and difficult-to-detect
crime, and his lack of remorse. Those reasons more than support Tyndale’s 101-year-below-
Guidelines sentence.
2. Combs
Combs received a within-Guidelines sentence of 151 months. We presume that a within-
Guidelines sentence is reasonable. United States v. Smith, 881 F.3d 954, 960 (6th Cir. 2018).
Combs’s contention that the district court failed to properly balance the § 3553(a) factors does not
suffice to rebut that presumption. First, “[Combs’s] argument ultimately boils down to an assertion
that the district court should have balanced the § 3553(a) factors differently.” United States v.
Sexton, 512 F.3d 326, 332 (6th Cir. 2008). As such, “it is ‘simply beyond the scope of our appellate
review, which looks to whether the sentence is reasonable, as opposed to whether in the first
instance we would have imposed the same sentence.’” Id. (quoting United States v. Ely, 468 F.3d
399, 404 (6th Cir. 2006)). And second, the district court had ample reason not to vary downward—
Combs threatened a witness, committed perjury, and assaulted one of his cellmates.
V. Conclusion
For the above reasons, we affirm Defendants’ convictions and sentences.
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