United States v. McIver

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.

RONALD A. MCIVER,

Defendant-Appellant,  No. 05-4884

and

ALL OUT BAIL BONDING; GIGGIES

BONDING COMPANY,

Parties in Interest.



Appeal from the United States District Court

for the District of South Carolina, at Anderson.

Henry F. Floyd, District Judge.

(CR-04-745)

Argued: September 21, 2006

Decided: December 5, 2006

Before WILKINSON and DUNCAN, Circuit Judges, and

Richard L. VOORHEES, United States District Judge

for the Western District of North Carolina, sitting by designation.

Affirmed by published opinion. Judge Duncan wrote the opinion, in

which Judge Wilkinson and Judge Voorhees concurred.

COUNSEL

ARGUED: John Philip Flannery, II, CAMPBELL, MILLER & ZIM-

MERMAN, P.C., Leesburg, Virginia, for Appellant. William Corley

2 UNITED STATES v. MCIVER

Lucius, Assistant United States Attorney, OFFICE OF THE UNITED

STATES ATTORNEY, Greenville, South Carolina, for Appellee. ON

BRIEF: Eli D. Stutsman, Portland, Oregon; C. Rauch Wise, Green-

wood, South Carolina, for Appellant. Jonathan S. Gasser, United

States Attorney, Columbia, South Carolina, for Appellee.

OPINION

DUNCAN, Circuit Judge:

The field of pain management has generated controversy because

of its reliance on opiate-based pain medications (opioids), which are

also a target of the government’s war on drugs. See Diane E. Hoff-

mann & Anita J. Tarzian, Achieving the Right Balance in Oversight

of Physician Opioid Prescribing for Pain: The Role of State Medical

Boards, 31 J. L. Med. & Ethics 21, 22-23 (2003). The government has

recently become more aggressive in prosecuting doctors who unlaw-

fully distribute opioids and other prescription drugs under the guise

of legitimate medical practice. See United States v. Hurwitz, 459 F.3d

463 (4th Cir. 2006); United States v. Feingold, 454 F.3d 1001 (9th

Cir. 2006); United States v. Williams, 445 F.3d 1302 (11th Cir. 2006);

United States v. Alerre, 430 F.3d 681 (4th Cir. 2005). The charges

against Dr. Ronald A. McIver ("Appellant") arose from his prescrip-

tion of pain medications to patients at a pain clinic. He appeals his

conviction for various counts of unlawful distribution of a controlled

substance, unlawful distribution of a controlled substance resulting in

death, and conspiracy to unlawfully distribute a controlled substance.

For the reasons that follow, we affirm.

I.

Appellant is a doctor of osteopathic medicine1 who was licensed to

1

"A doctor of osteopathic medicine (D.O.) is a physician licensed to

perform surgery and prescribe medication." MedlinePlus Medical Ency-

clopedia: Doctor of Osteopathy (D.O.), http://www.nlm.nih.gov/

medlineplus/ency/article/002020.htm. Osteopaths differ from doctors of

medicine ("M.D.") in that they receive specialized training in "hands-on

manual medicine and the body’s musculoskeletal system," and are "dedi-

cated to treating and healing the entire patient as a whole, rather than

focusing on one system or body part." Id. In practice, however, the roles

of D.O.’s and M.D.’s are often identical.

UNITED STATES v. MCIVER 3

prescribe controlled substances under the Controlled Substances Act,

21 U.S.C. § 801 et seq. He operated a medical clinic in Greenwood,

South Carolina that specialized in treating chronic pain. The United

States Drug Enforcement Administration ("DEA") began investigat-

ing Appellant in 2002 after receiving information about his prescrib-

ing practices from the Columbia, South Carolina police department.

J.A. 682-83.2 During its investigation, the DEA discovered that

Appellant had prescribed massive quantities of oxycodone,3 Dilaudid,4

OxyContin,5 methadone,6 and morphine7 to his patients. J.A. 687-88.

The investigation also uncovered a disturbing pattern among Appel-

lant’s patients. These patients included admitted drug addicts who

traveled significant distances to see him, appeared without referrals,

paid in cash, and sought specific drugs which were prescribed for

them based on little or no physical examination.

The government indicted Appellant on fifteen counts related to his

treatment of ten patients, nine of whom testified for the government

at trial. The remaining patient, Larry Shealy, was deceased; his death

formed the basis of two counts of the indictment.

2

Our citations to "J.A. ___" refer to the contents of the Joint Appendix

filed by the parties in this appeal.

3

Oxycodone is a potent and addictive opioid that is classified as a

Schedule II drug under the Controlled Substances Act. See 21 U.S.C.

§ 812 (2000); 21 C.F.R. § 1308.12(b)(1) (2004). It is marketed in instant-

release form under trade names such as Roxicodone, Roxicet, OxyIR,

and OxyFAST, and in a controlled- release form as OxyContin.

4

Dilaudid is the trade name for a medication that contains hydromor-

phone, a potent and addictive opioid that is classified as a Schedule II

narcotic. § 1308.12(b)(1).

5

OxyContin is the trade name of a controlled-release form of oxyco-

done that can be crushed to circumvent the time-release mechanism and

then taken either nasally or intravenously.

6

Methadone is a potent and addictive synthetic opioid that is used to

treat pain and addiction to other opioids. It is classified as a Schedule II

narcotic. § 1308.12(b)(1).

7

Morphine is one of the most powerful and addictive opioids. It is clas-

sified as a Schedule II narcotic. § 1308.12(b)(1).

4 UNITED STATES v. MCIVER

After trial, the jury convicted Appellant of one count of conspiracy

to distribute controlled substances unlawfully in violation of 21

U.S.C. § 846 (2000) (Count 1), six counts of unlawful distribution of

a controlled substance in violation of 21 U.S.C. § 841(a)(1) (2000)

(Counts 3-5, 13-15), and two counts of unlawful distribution of a con-

trolled substance resulting in the death of Larry Shealy in violation of

§ 841(a)(1) & (b)(1)(C) (Counts 11, 12).8 The district court sentenced

Appellant to 240 months on Counts 1, 3, 4, 5, 13, 14, and 15, and 360

months on Counts 11 and 12, to run concurrently. Appellant timely

appealed.

We turn now to a consideration of the facts relevant to this appeal,

beginning with those involving the six patients whose experiences

underlie Appellant’s convictions. In the context of Appellant’s chal-

lenges to the sufficiency of the evidence, we recite those facts in the

light most favorable to the government. United States v. Rahman, 83

F.3d 89, 93 (4th Cir. 1996). We then discuss the testimony of the gov-

ernment’s expert witness, Dr. Steven Storick, and the district court’s

jury instruction on the § 841(a)(1) charges.

A. Larry Shealy

Larry Shealy sought treatment from Appellant for back and knee

pain. J.A. 416. Appellant treated Shealy almost exclusively with large

quantities of various simultaneous combinations of morphine, Oxy-

contin, oxycodone, and methadone. J.A. 526. Shealy’s son, who

accompanied his father to many of his appointments, only observed

his father receive non-drug therapy once. J.A. 416-17.

Shealy’s son testified that after Shealy started seeing Appellant, his

father’s demeanor changed dramatically. J.A. 417-19. In addition to

losing his appetite and weight, Shealy became somnolent and irrita-

ble. J.A. 418. On one occasion, Shealy backed his truck into a tree,

apparently without realizing he had done so. J.A. 417-18. These

changes so worried Shealy’s son that he counseled his father to stop

seeing Appellant. J.A. 419. Shealy, however, continued seeing Appel-

lant until he died from an oxycodone overdose. J.A. 419-20, 427-30,

8

McIver was acquitted of all charges relating to four patients, identi-

fied as "A," "E," "F," and "G" in the indictment. J.A. 15-20.

UNITED STATES v. MCIVER 5

456. The level of drugs in Shealy’s system when he died was consis-

tent with the amounts Appellant prescribed. J.A. 427-30.

A representative of the company that provided Shealy health insur-

ance testified that the amount and cost of the drugs prescribed to

Shealy, along with the frequency of dosage, "was as high as [he had]

ever seen." J.A. 134-35. The representative became so concerned

about Shealy’s prescriptions that he contacted the DEA. J.A. 134.

B. Barbee Brown

Barbee Brown sought treatment from Appellant primarily for reflex

sympathetic dystrophy, a chronic neurological condition that causes

severe pain. J.A. 518-19. Appellant knew from the outset that Brown

had a history of prescription drug and cocaine abuse. J.A. 207-08,

519. He nevertheless prescribed OxyContin, oxycodone, and, later,

methadone in various simultaneous combinations for her. J.A. 518-23.

Appellant also allowed Brown to manage her own dosing without

specifying a maximum amount. J.A. 208. Brown’s father wrote to

Appellant to express concern about his daughter’s treatment, stating

that, since coming to see Appellant, Brown had been in a "drug state,"

"unstable in her speech and ha[d] threatened to kill" her father. J.A.

233, 520. Appellant continued prescribing opioids to Brown, how-

ever, maintaining that, if anything, her dose was too low. J.A. 521.

Appellant stopped treating Brown abruptly after less than two

months when her insurance stopped covering his care. J.A. 211. He

took no steps to wean her from the opioids, however, and she was

hospitalized for four days with severe drug withdrawal symptoms.

J.A. 211-12.

C. Leslie Smith

Leslie Smith sought treatment from Appellant specifically to obtain

prescription painkillers. J.A. 176. Smith traveled sixty miles each way

to see Appellant after learning that he had readily prescribed drugs to

one of Smith’s friends. J.A. 175-76. Smith testified that he lied to

Appellant about pain in his wrist, but that Appellant prescribed high

doses of OxyContin and Dilaudid, the drugs that Smith requested,

6 UNITED STATES v. MCIVER

without ordering x-rays. J.A. 178, 180-183. At trial, Smith admitted

that he was a drug addict and injected these drugs to satisfy his habit.

J.A. 176. Evidence indicates that Appellant was aware of Smith’s

drug use; Appellant discovered a syringe in Smith’s possession during

a visit, but on being told that Smith used it for fishing, continued to

prescribe Smith’s drugs. J.A. 185.

Appellant eventually became sufficiently suspicious that Smith was

either using or selling his medications to write to the South Carolina

Department of Health and Environmental Control to express those

concerns. J.A. 180-81, 684. Appellant, however, continued prescrib-

ing drugs to Smith after writing the letter. J.A. 181-82.

D. Seth Boyer

Like Smith, Seth Boyer learned of Appellant from friends and

began traveling more than an hour to see him specifically to obtain

prescription drugs. J.A. 248, 250-51. Boyer came to his first appoint-

ment with Appellant with track marks on his arms from intravenous

drug use. J.A. 250-51, 253. Boyer complained of pain in his foot, but,

as with Smith, Appellant did not x-ray it before prescribing OxyCon-

tin, OxyFast, and Dilaudid. J.A. 249-50, 253. Boyer both used and

sold these drugs. J.A. 253. On one occasion, Boyer lied to Appellant

about spilling a bottle of liquid oxycodone, and Appellant refilled the

prescription immediately. J.A. 255.

E. Kyle Barnes

Kyle Barnes started seeing Appellant for treatment of fibromyalgia,

a chronic condition characterized by widespread pain and stiffness,

after her former provider was closed by the government because of

its prescribing practices. J.A. 347. When Appellant first began treat-

ing her, Barnes was addicted to oxycodone. J.A. 346. Even though

Barnes was poor and receiving Medicaid, she traveled nearly three

hours to see Appellant, paid for his services in cash and filled pre-

scriptions for thousands of dollars worth of medications. J.A. 350,

353, 359, 530.

Appellant prescribed Barnes massive doses of methadone, Oxy-

Contin, oxycodone and morphine in various simultaneous combina-

UNITED STATES v. MCIVER 7

tions. J.A. 354, 356, 529. In one year, Appellant prescribed Barnes

20,562 individual doses of various medications. J.A. 687. Appellant

continued to prescribe methadone even after Barnes told him that she

could not take it because of side effects. J.A. 354, 356. Barnes sold

both the methadone and morphine. J.A. 356, 359.

Evidence supports an inference that Appellant knew Barnes was

not taking her medicine as prescribed. At one point after Appellant

had prescribed Barnes high doses of opioids for a number of months,

she reported running out of her medications. J.A. 530-31. She did not,

however, report any of the withdrawal symptoms commonly associ-

ated with a sudden cessation of such high doses. J.A. 530-31.

F. Angela Knight

Angela Knight sought treatment from Appellant for chronic back

pain after her previous pain clinic was shut down for its prescribing

practices. J.A. 388-89. Even though she lived closer to other pain

clinics, Knight traveled nearly two-and-one-half hours to see Appel-

lant. J.A. 392, 542. He treated Knight with high doses of OxyContin,

along with methadone and oxycodone. J.A. 538-40.

As with other of Appellant’s patients, evidence suggested that

Knight was not taking her medicine as prescribed. For example, at her

former pain clinic, Knight twice tested negative for opioids despite

being prescribed OxyContin at the time. J.A. 537-38. Even though her

medical records revealed this fact, on her first visit to him, Appellant

doubled the dosage of her previous OxyContin prescription. J.A. 390.

Thereafter, Appellant continued to prescribe high and escalating

doses of opioids for Knight after his office conducted two similar

drug tests that detected no opioids in her system. J.A. 538, 542.

On other occasions, Knight tested positive for opioids, indicating

that she was, in fact, taking her medications. J.A. 539-40. Knight

eventually became addicted to the medications that Appellant pre-

scribed and suffered significant withdrawal when she stopped taking

them. J.A. 397.

G. Dr. Steven Storick’s Testimony

At trial, the government offered testimony from Dr. Steven Storick

("Dr. Storick"), an anesthesiologist qualified as an expert in pain man-

8 UNITED STATES v. MCIVER

agement. Based on his review of certain patient records, Dr. Storick

concluded that the treatment of several of Appellant’s patients fell

outside the parameters of legitimate medical practice.

With respect to Shealy, for example, Dr. Storick testified that there

was "no legitimate reason to be prescribing" combinations of opioids

in such high doses based on the patient’s medical conditions. J.A.

527. Similarly, given Brown’s history of drug abuse, Storick testified

that Appellant’s treatment went "outside the course of legitimate med-

ical practice," and was "like pouring gasoline onto a fire." J.A. 523.

As to Barnes, Dr. Storick stated that it was uncommon to treat

fibromyalgia with the amount and type of medication Appellant pre-

scribed. J.A. 533. Indeed, he testified that Appellant’s treatment of

her "was one of the worst cases [he had] seen" and that "it was way

outside the course of legitimate medical treatment." J.A. 534. In

response to questions about Ms. Knight, Dr. Storick testified that it

was outside the legitimate practice of medicine for Appellant to pre-

scribe high doses of opioids given her history of negative drug

screens. J.A. 542-43.

Dr. Storick was subjected to rigorous cross-examination regarding

varying theories of pain management, and acknowledged differences

in points of view as to appropriate levels of pain medication. J.A.

576-80. He was also challenged as to, and defended his opinions

regarding, Appellant’s treatment of specific patients.

H. Jury Instructions for § 841(a)(1) Charges

Under § 841(a)(1), the government must prove (1) that Appellant

knowingly or intentionally distributed a controlled substance; (2) with

knowledge that it was controlled under the law; and (3) that he did

so "outside the usual course of professional practice." United States

v. Moore, 423 U.S. 122, 124 (1975); see also United States v. Tran

Trong Cuong, 18 F.3d 1132, 1137 (4th Cir. 1994) (setting out ele-

ments of § 841(a)(1) charge). With respect to the third element—the

only one challenged by Appellant on appeal—the district court

instructed the jury extensively prior to its deliberations.9

9

The court instructed the jury in relevant part as follows:

There are no specific guidelines concerning what is required

UNITED STATES v. MCIVER 9

II.

On appeal, Appellant argues that: (1) the district court’s instruc-

tions on the § 841(a)(1) charges improperly lowered the government’s

to support a conclusion that a defendant physician acted outside

the usual course of professional practice and for other than a

legitimate medical purpose. In making a medical judgment con-

cerning the right treatment for an individual patient, physicians

have discretion to choose among a wide range of options. There-

fore, in determining whether a defendant acted without a legiti-

mate medical purpose, you should examine all of a defendant’s

actions and the circumstances surrounding the same.

If a doctor dispenses a drug in good faith, in medically treating

a patient, then the doctor has dispensed that drug for a legitimate

medical purpose in the usual course of medical practice. That is,

he has dispensed the drug lawfully.

Good faith in this context means good intentions, and the hon-

est exercise of professional judgment as to the patient’s needs.

It means that the defendant acted in accordance with what he

reasonably believed to be proper medical practice. If you find

that a defendant acted in good faith in dispensing the drugs

charged in this indictment, then you must find that defendant not

guilty.

For you to find that the government has proven this essential

element, you must determine that the government has proven

beyond a reasonable doubt that the defendant was acting outside

the bounds of professional medical practice, as his authority to

prescribe controlled substances was being used not for treatment

of a patient, but for the purpose of assisting another in the main-

tenance of a drug habit or dispensing controlled substances for

other than a legitimate medical purpose, in other words, the per-

sonal profit of the physician.

Put another way, the government must prove as to each count

beyond a reasonable doubt that the defendant dispensed the spe-

cific controlled substance other than for a legitimate medical

purpose and not with the bounds of professional medical prac-

tice.

A physician’s own methods do not themselves establish what

constitutes medical practice. In determining whether the defen-

10 UNITED STATES v. MCIVER

burden of proof; (2) Dr. Storick’s expert testimony constituted inad-

missible legal opinions; (3) the district court erred in excluding evi-

dence from Appellant’s expert witness, Dr. Thomas Duc; and (4)

dant’s conduct was within the bounds of professional practice,

you should, subject to the instructions I give you concerning the

credibility of experts and other witnesses, consider the testimony

you have heard relating to what has been characterized during

the trial as the norms of professional practice.

You should also consider the extent to which, if at all, any vio-

lation of professional norms you find to have been committed by

the defendant interfered with his treatment of his patients and

contributed to an over prescription and/or excessive dispensation

of controlled substances. You should consider the defendant’s

actions as a whole and the circumstances surrounding them. A

physician’s conduct may constitute a violation of applicable pro-

fessional regulations as well as applicable criminal statutes.

However, a violation of a professional regulation does not in and

of itself establish a violation of the criminal law. As I just indi-

cated, in determining whether or not the defendant is guilty of

the crimes with which he is charged, you should consider the

totality of his actions and the circumstances surrounding them

and the extent and severity of any violations of professional

norms you find he committed. . . .

There has been some mention in this case from time to time

of the standard of care. During the trial the words medical mal-

practice may have been used. Those words relate to civil actions.

When you go to see a doctor, as a patient, that doctor must treat

you in a way so as to meet the standard of care that physicians

of similar training would have given you under the same or simi-

lar circumstances. And if they fall below that line or what a rea-

sonable physician would have done, then they have not exercised

that standard of care, which makes them negligent and which

subjects themselves to suits for malpractice.

That is not what we’re talking about. We’re not talking about

this physician acting better or worse than other physicians.

We’re talking about whether or not this physician prescribed a

controlled substance outside the bounds of his professional medi-

cal practice.

J.A. 1291-96.

UNITED STATES v. MCIVER 11

there was insufficient evidence to support each of his convictions. We

consider each argument in turn.

A.

1.

Appellant first argues that by referring to "norms of professional

practice" in the jury instructions, the district court improperly allowed

the jury to convict on a civil, rather than a criminal, standard of proof.

We review the accuracy and adequacy of jury instructions de novo,

United States v. Scott, 424 F.3d 431, 434 (4th Cir. 2005), and will not

reverse a conviction so long as "the instructions, taken as a whole,

adequately state the controlling law," United States v. Wills, 346 F.3d

476, 492 (4th Cir. 2003) (emphasis added). Because we find that the

district court’s instructions as a whole adequately articulated a crimi-

nal standard of proof, we find no error.

The potential for juries to confuse the civil standard of care applied

in medical malpractice cases and the criminal standard of proof

applied in § 841(a)(1) prosecutions requires courts to exercise care in

setting out the governing standard in the latter circumstance.10 We

have previously considered the proper relationship between the stan-

dards in two decisions that are relevant to our analysis here, even

though neither involved a direct challenge to the propriety of

§ 841(a)(1) jury instructions.

In Tran Trong Cuong, we addressed a sufficiency of the evidence

challenge by Tran, a physician also indicted under § 841(a)(1). Tran’s

argument in part was that the district court erroneously applied a civil

negligence, rather than a criminal, standard of proof during trial. 18

10

In Alerre we pointed out that, "[i]n contrast to the criminal standard,

a medical malpractice plaintiff in South Carolina must show in a civil

case (1) ‘the generally recognized practices and procedures that would be

exercised by competent practitioners in a defendant doctor’s field of

medicine under the same or similar circumstances,’ and (2) ‘that the

defendant doctor departed from the recognized and generally accepted

standards, practices, and procedures.’" 430 F.3d at 690 (citing Gooding

v. St. Francis Xavier Hosp., 487 S.E.2d 596, 599 (S.C. 1997)).

12 UNITED STATES v. MCIVER

F.3d at 1137. While acknowledging that the district court had, during

trial, confused the two standards, we nevertheless concluded that the

court’s articulation of the criminal standard was correct when it

instructed the jury at the close of the case. Id. at 1137-38. The trial

court made it clear in its jury charge that the government must "prove

beyond a reasonable doubt . . . that the defendant prescribed the drug

other than for [a] legitimate medical purpose and not in the usual

course of medical practice." Id. at 1137. It then recognized the broad

discretion afforded doctors, instructed the jury to consider all of the

defendant’s actions, and provided specific examples of behavior that

tended to denote illegitimacy, such as prescribing drugs without per-

forming physical examinations, or asking patients about the amount

or type of drugs they want. Id. at 1137-38. We held that these instruc-

tions adequately articulated the government’s criminal burden of

proof, and did not endorse the use of a negligence standard. Id.

Indeed, we concluded that the jury instructions not only captured the

criminal standard, but arguably imposed a higher burden on the gov-

ernment than set forth in Moore by additionally requiring proof that

Tran had written prescriptions "without a legitimate medical pur-

pose." Id.

In Alerre, in response to an argument that the entire trial was

infected with an erroneous standard of proof, we approved instruc-

tions that largely mirrored those in Tran Trong Cuong but more fully

developed "the distinction between the civil standard and the criminal

standard." 430 F.3d at 691 n.9. The district court in Alerre distin-

guished civil standard-of-care evidence, explained the burden of proof

necessary for a criminal conviction, and cautioned the jury that "the

critical issue . . . was not whether the defendants had acted negli-

gently, but whether or not [they] prescribed a controlled substance

outside the bounds of their professional medical practice." Id. (quota-

tions omitted).

Significantly, we recognized in Alerre that merely because

standard-of-care evidence might show that a physician contravened

the civil standard, it need not be categorically excluded from a crimi-

nal proceeding. Id. at 691. To the contrary, "evidence that a physician

consistently failed to follow generally recognized procedures tends to

show that in prescribing drugs he was not acting as a healer but as a

seller of wares." Id. Similarly, we recognized that evidence that a

UNITED STATES v. MCIVER 13

physician "deviated drastically from accepted medical standards" is

probative of criminal liability. Id.

With that guidance, we consider the challenge before us, which

specifically focuses on the district court’s jury instructions. The thrust

of Appellant’s argument is that the district court erred in telling the

jury to consider the extent to which "any violation of professional

norms you find to have been committed by the defendant interfered

with his treatment of his patients and contributed to an over prescrip-

tion and/or excessive dispensation of controlled substances." J.A.

1293. Appellant specifically focuses on the district court’s use of the

phrase "norms of professional practice." However, after reviewing the

jury instructions as a whole, as we must, Wills, 346 F.3d at 492, we

find multiple reasons to conclude that the instructions here properly

set forth the criminal standard required by § 841(a)(1).

As was the case in Tran Trong Cuong, 18 F.3d at 1137, and Alerre,

430 F.3d at 687, the court below cabined both its overall § 841(a)(1)

instruction, as well as its specific instructions on the third element,

within the requirement of proof "beyond a reasonable doubt." J.A.

1290, 1292. This statement clearly articulated the proper criminal bur-

den for the government and precluded conviction on a lesser civil

standard of proof.

The court then properly defined the scope of unlawful conduct

under § 841(a)(1) by explaining that the government had to prove that

Appellant used "his authority to prescribe controlled substances . . .

not for treatment of a patient, but for the purpose of assisting another

in the maintenance of a drug habit or" some other illegitimate pur-

poses, such as his own "personal profit." J.A. 1292; see Alerre, 430

F.3d at 690-91. This instruction set the proper threshold for convic-

tion by placing unlawful conduct beyond the bounds of any legitimate

medical practice, including that which would constitute civil negli-

gence. See Tran Trong Cuong, 18 F.3d at 1137; cf. Alerre, 430 F.3d

at 690 (setting forth the standard for medical malpractice in South

Carolina). In other words, the district court ensured that the jury could

only convict Appellant for conduct that was exclusively criminal in

nature.

Significantly, in order to satisfy this definition of unlawful conduct,

the district court required the prosecution to prove, not only that

14 UNITED STATES v. MCIVER

Appellant acted "outside the course of professional practice," as

required by Moore, 423 U.S. at 124, but also that he acted "for other

than a legitimate medical purpose," J.A. 1292 (emphasis added). This

additional requirement arguably benefitted Appellant by placing an

even heavier burden on the government than otherwise required to

establish criminal liability. See Alerre, 430 F.3d at 690-91; Tran

Trong Cuong, 18 F.3d at 1138.

As in Tran Trong Cuong, 18 F.3d at 1138, and Alerre, 430 F.3d

at 691 n.9, the court next stated that so long as Appellant acted in

good faith, he acted lawfully. J.A. 1291-92; see 430 F.3d at 692; 18

F.3d at 1138. The significance of this distinction is manifest: good

faith is a defense to a charge under § 841(a)(1), but not to a claim of

medical malpractice. See Hurwitz, 459 F.3d at 480 ("good faith gener-

ally is relevant in a § 841 case against a registered physician"); Pleas-

ants v. Alliance Corp., 209 W. Va. 39, 49 n.27 (2000) (collecting

cases rejecting use of subjective good faith jury instructions in medi-

cal malpractice actions). The inclusion of a good faith instruction is

therefore a plainspoken method of explaining to the jury a critical dif-

ference between the two standards.

Finally, the court instructed the jury on the difference between civil

and criminal violations. J.A. 1293. The court indicated that "a viola-

tion of a professional norm does not in and of itself establish a viola-

tion of [a] criminal law," but could support a conviction based on its

"extent and severity." Id. While this instruction allowed the jury to

consider civil violations, it properly explained that such evidence is

not inexorably indicative of unlawfulness. See Alerre, 430 F.3d at

691. The district court then concluded by describing the concept of

medical malpractice and the civil standard of care before categorically

stating that a criminal standard governed resolution of this case.11 J.A.

1293-96 ("[Malpractice or negligence] is not what we’re talking about

11

While not directly relevant to the distinction between a civil and

criminal standard of proof, we further note that the court here mirrored

the instructions in both Tran Trong Cuong, 18 F.3d at 1137-38, and

Alerre, 430 F.3d at 691 n.9, by instructing the jury to base its decision

on all of Appellant’s actions and the surrounding circumstances. J.A.

1291. Appellant thus received the benefit of court-sanctioned deference

to his professional judgment.

UNITED STATES v. MCIVER 15

. . . . We’re talking about whether or not this physician prescribed a

controlled substance outside the bounds of his professional medical

practice.").

These instructions, taken as a whole, set the proper threshold for

conviction, mandating application of a criminal standard of proof and

precluding conviction on a lower civil standard. The fact that the dis-

trict court may have invoked language, taken in isolation, suggestive

of a civil standard, would not alone lower the government’s burden

of proof. Indeed, it would be difficult, if not impossible, to purge an

instruction under § 841(a)(1) of all references to permissible stan-

dards or norms of care, since the third element of § 841(a)(1) requires

a determination of whether the defendant’s conduct is outside the

usual course of professional conduct.

The jury instructions here went further in defining the proper crimi-

nal standard and distinguishing it from the civil standard than those

which we approved, albeit in different contexts, in both Tran Trong

Cuong and Alerre. We therefore find no error with the district court’s

instructions.

2.

Appellant further argues that Dr. Storick’s testimony combined

with the instructions on the third element to lower the government’s

burden. At trial, Dr. Storick opined that Appellant acted "outside the

course of legitimate medical practice," "inappropriate[ly]" or "with no

legitimate reason." J.A. 523, 527, 543. Appellant argues that the con-

fluence of this testimony and the court’s instructions regarding the

"norms of professional practice" effectively allowed the jury to con-

vict based on a civil standard of proof. We find this argument unper-

suasive for two reasons.

First, as we recognized in Alerre and noted above, evidence regard-

ing a departure from a generally recognized standard-of-care is not

inherently impermissible. 430 F.3d at 691. To the contrary, such evi-

dence may support an inference that a physician is acting as a dealer

of drugs rather than a provider of care.12 Id. Indeed, it is the extent and

12

We entrust to the district court the task of ensuring that such evi-

dence is sufficiently constrained as to not confuse a jury. See Fed. R.

16 UNITED STATES v. MCIVER

severity of departures from the professional norms that underpin a

jury’s finding of criminal violations. See id. ("[E]vidence that a physi-

cian consistently failed to follow generally recognized procedures

tends to show that in prescribing drugs he was not acting as a healer

but as a seller of wares.")

Second, even if we assume that Dr. Storick suggested a lower bur-

den to the jury, the district court’s jury charge negated any such testi-

mony by articulating the proper standard. Again, our decision in Tran

Trong Cuong is instructive. The district court there made statements

at trial that unambiguously indicated that a civil standard of proof

governed the case, commenting, for example, that the governing stan-

dard was (1) "whether a reasonably prudent physician would do it,"

(2) "whether it is within the standard of care of a family practitioner,"

and (3), "like you use in a civil case, whether [care was comparable

to that provided] in the usual course of treating a patient by the aver-

age family practitioner." 18 F.3d at 1137. We concluded, nonetheless,

that the satisfactory definition included in the jury instructions cured

the prior misstatements. Id. at 1138. Such a conclusion is consistent

with our general presumption that "a properly instructed jury [acts] in

a manner consistent with the instructions." Alerre, 430 F.3d at 692;

see Jones v. United States, 527 U.S. 373, 394 (1999) ("[J]urors are

presumed to have followed . . . instructions.").

As discussed above, the district court here instructed the jury that

the government had to satisfy a criminal standard of proof to convict

Appellant. J.A. 1291-96. We presume that the jury followed these

instructions and ignored any suggestion to the contrary. See Jones,

527 U.S. at 394; Alerre, 430 F.3d at 692. We discern nothing in the

record that rebuts this presumption. Accordingly, we find no error.

B.

Appellant next asserts error in the admission of Dr. Storick’s expert

testimony that Appellant treated certain patients outside the course of

Evid. 403 (requiring exclusion of confusing evidence); Alerre, 430 F.3d

at 691 n.10 (noting that "undue emphasis on standard-of-care evidence

might, in certain circumstances, confuse a jury."). Based on the record

before us, we find nothing improper with the evidence admitted at trial.

UNITED STATES v. MCIVER 17

legitimate medical practice. Appellant argues that this testimony

embraced inadmissible legal conclusions. We review this argument

for plain error because Appellant did not object to the testimony at

trial. United States v. Ellis, 121 F.3d 908, 918 (4th Cir. 1997). To

reverse on plain error review, we "must ‘(1) identify an error, (2)

which is plain, (3) which affects substantial rights, and (4) which seri-

ously affect[s] the fairness, integrity or public reputation of judicial

proceedings.’" Id. (quoting United States v. Brewer, 1 F.3d 1430,

1434 (4th Cir. 1993)) (alterations in original). Because we conclude

that Dr. Storick’s testimony was admissible, there was no error and

Appellant cannot satisfy this standard.

Rule 704(a) allows the admission of expert testimony that "em-

braces an ultimate issue to be decided by the trier of fact." Fed. R.

Evid. 704(a). In other words, questions of fact that are committed to

resolution by the jury are the proper subject of opinion testimony. Id.

However, opinion testimony that states a legal standard or draws a

legal conclusion by applying law to the facts is generally inadmissible.13

See United States v. Barile, 286 F.3d 749, 760 (4th Cir. 2002);

Okland Oil Co. v. Conoco, Inc., 144 F.3d 1308, 1328 (10th Cir.

1998). The line between a permissible opinion on an ultimate issue

and an impermissible legal conclusion is not always easy to discern.

Barile, 286 F.3d at 760. We identify improper legal conclusions by

determining whether "the terms used by the witness have a separate,

distinct and specialized meaning in the law different from that present

in the vernacular." Id. For example, courts have held inadmissible tes-

timony that a defendant’s actions constituted "extortion," DiBella v.

Hopkins, 403 F.3d 102, 121 (2d Cir. 2005); that a dog bite constituted

"deadly force," Miller v. Clark County, 340 F.3d 959, 963 n.7 (9th

Cir. 2003); that defendants held a "fiduciary" relationship to plain-

tiffs, Christiansen v. Nat’l Sav. & Trust Co., 683 F.2d 530, 529 (D.C.

13

We have previously recognized that in certain circumstances, such as

cases involving specialized industries, "opinion testimony that arguably

states a legal conclusion is helpful to the jury, and thus, admissible."

United States v. Barile, 286 F.3d 749, 760 n.7 (4th Cir. 2002) (quoting

Weinstein’s Federal Evidence § 704.04[2][a] (2d ed. 2001)). Because we

conclude that Dr. Storick’s testimony did not embrace improper legal

conclusions, we need not confront the question of whether his testimony

falls under this exception.

18 UNITED STATES v. MCIVER

Cir. 1982); and that a product was "unreasonably dangerous," Strong

v. E.I. DuPont de Nemours Co., 667 F.2d 682, 685-86 (8th Cir. 1981).

Dr. Storick’s testimony, however, does not involve terms with similar

legal significance.

On the issue of whether Appellant acted "outside the bounds of his

professional medical practice and for other than legitimate medical

purposes," Tran Trong Cuong, 18 F.3d at 1137,14 Dr. Storick opined

that Appellant’s treatment of certain patients was either illegitimate

or inappropriate. J.A. 523, 527, 534, 541, 557-58. Although Dr. Stor-

ick used terms similar to that which this court has employed to

express the underlying issue, none is sufficiently specialized to render

his testimony inadmissible. Rather, the language Dr. Storick

employed falls within the limited vernacular that is available to

express whether a doctor acted outside the bounds of his professional

practice.15 We conclude therefore that the district court properly

admitted Dr. Storick’s testimony and that Appellant cannot establish

plain error.

C.

Appellant argues that the district court erred by excluding testi-

mony from his expert witness, Dr. Thomas Duc. During direct exami-

nation, Appellant’s attorney asked Dr. Duc whether a minority group

of doctors who treat pain aggressively with opioids acted "within the

bounds of medical practice." J.A. 1085. The government raised an

objection to this testimony, which the district court sustained, on the

14

This issue is a question of fact that is entrusted to the jury, see Tran

Trong Cuong, 18 F.3d at 1137-38 (approving instructions given to jury

on this issue); United States v. Kaplan, 895 F.2d 618, 623-24 (9th Cir.

1990) (treating issue as question for jury); Oregon v. Ashcroft, 192 F.

Supp. 2d 1077, 1090 n.15 (D. Or. 2002) (recognizing issue as a question

of fact for jury), and, therefore, is the proper subject of expert testimony,

see Fed. R. Evid. 704(a).

15

We note as well that experts in Tran Trong Cuong and Alerre testi-

fied similarly, and that the defendant in Tran Trong Cuong relied on the

opinions of two physicians that his prescription practices were "within

the state of the art" or "the medical standard." 430 F.3d at 686; 18 F.3d

at 1135.

UNITED STATES v. MCIVER 19

grounds that it called for a legal conclusion. Id. Even if the district

court’s exclusion of this testimony were improper, any such error was

harmless because of the examination that followed. See United States

v. Pendergraph, 388 F.3d 109, 112 (4th Cir. 2004) (recognizing that

error in exclusion of evidence is harmless if it does not substantially

sway the judgment).

After the district court sustained the government’s objection,

Appellant’s attorney reworded his inquiry and conducted, without

objection, a thorough examination of Dr. Duc’s opinions on various

approaches to pain management. J.A. 1085-88. This testimony was

substantively identical to that sought from the initial question; it was

merely elicited through an unobjectionable, if somewhat more cum-

bersome, line of questioning. Because of the similarity between the

two lines of inquiry, we conclude that any error in the exclusion of

the initial line of questioning did not sway the jury and, therefore, was

harmless.

D.

Finally, Appellant argues that there was insufficient evidence to

support each of his convictions. A "jury’s verdict must be upheld on

appeal if there is substantial evidence in the record to support it."

United States v. Wilson, 198 F.3d 467, 470 (4th Cir. 1999). In making

this determination, "we view the evidence in the light most favorable

to the government and inquire whether there is evidence that a ‘rea-

sonable finder of fact could accept as adequate and sufficient to sup-

port a conclusion of a defendant’s guilt beyond a reasonable doubt.’"

Id. (quoting United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996)

(en banc)). We now turn to an analysis of each claim.

1. Count 1, Conspiracy to Unlawfully Distribute a Controlled

Substance

Appellant argues that the government did not present sufficient evi-

dence on Count 1 to prove either that he entered into an illicit agree-

ment with his patients to distribute controlled substances unlawfully

or that he did so knowingly. Proof of each was a necessary element

of the conspiracy charge against him. United States v. Cropp, 127

F.3d 354, 361 (4th Cir. 1997); United States v. Clark, 928 F.2d 639,

20 UNITED STATES v. MCIVER

641-42 (4th Cir. 1991). There is ample evidence, however, to support

each element.

With respect to the first element, "it is not necessary to prove a for-

mal agreement to establish a conspiracy in violation of federal law;

a tacit or mutual understanding among or between the parties will suf-

fice." United States v. Depew, 932 F.3d 324, 326 (4th Cir. 1991).

There was evidence that many of Appellant’s patients were drug

addicts who sought treatment from him with the express purpose of

obtaining drugs and, further, that he prescribed drugs in quantities

greater than he had reason to believe, or that tests revealed, his

patients were using. See J.A. 134-35, 176, 248, 354, 356, 523, 527,

529, 533-34, 538-40, 543, 687. Viewed in a light most favorable to

the government, this evidence supports a conclusion that McIver tac-

itly agreed with his patients to provide opioid prescriptions without

legitimate medical reasons for doing so.

The government can satisfy the knowledge requirement by show-

ing either that Appellant actually knew of the conspiracy, Cropp, 127

F.3d at 361, or that he was willfully blind to it by "purposely clos[ing]

his eyes to avoid knowing what was taking place around him." United

States v. Ruhe, 191 F.3d 376, 384 (4th Cir. 1999) (quoting United

States v. Schnabel, 939 F.3d 197, 203 (4th Cir. 1991)). The govern-

ment presented a plethora of evidence that demonstrates that Appel-

lant either knew of the conspiracy, or, at the very least, was willfully

blind to the unlawfulness of his actions.

Testimony showed that Appellant consistently prescribed large

quantities of opioids despite warning signs that his patients were not

using their medications as prescribed, were seeking his treatment spe-

cifically to obtain drugs, or were drug addicts. See J.A. 177-78, 180-

82, 185, 207-08, 233, 250-51, 253, 350, 353, 359, 390, 392, 518-23,

530-31, 538, 542. Indeed, Appellant continued prescribing medication

to one patient after she repeatedly told him that she could not take it,

J.A. 356; to another after developing sufficient concern that the

patient was selling his medication to contact state officials, J.A. 180-

81; and to yet another after finding a syringe in his possession, J.A.

185. Evidence also revealed instances in which Appellant failed to

conduct even the most basic diagnostic testing before prescribing

opioids. See J.A. 184, 249. Taken together, this evidence supports

UNITED STATES v. MCIVER 21

either of two alternate conclusions: that Appellant had actual knowl-

edge that he was prescribing drugs for non-medical purposes or that

he was willfully blind to his patient’s true motives in seeking his care.

Either circumstance establishes Appellant’s knowledge of the con-

spiracy.

On this record, we conclude that the government presented suffi-

cient evidence to satisfy both the agreement and knowledge elements

of the conspiracy charge.

2. Counts 3-5 & 13-15, Unlawful Distribution of a Controlled

Substance

Appellant challenges the sufficiency of the evidence on the third

element of the § 841(a)(1) charges, whether he prescribed substances

"outside the usual course of professional practice."16 See Alerre, 430

F.3d at 690 (quoting Moore, 423 U.S. at 124).

However, the evidence demonstrated that McIver freely distributed

prescriptions for large amounts of controlled substances that are

highly addictive, difficult to obtain, and sought after for nonmedical

purposes. J.A. 134-35, 176, 180-83, 248, 251, 253, 255, 346, 354-56,

388-90, 518-23, 526, 529, 538-40. For one patient, he prescribed

more than 20,000 pills in a single year. J.A. 687. He prescribed drugs

to patients that he either knew or had reason to believe would not take

them as directed. J.A. 354, 356. Some of his patients were drug

addicts who sought treatment from him specifically to obtain con-

trolled substances to use or to sell. J.A. 176, 248, 251, 253, 346, 356,

359. That Appellant knew or suspected his patients of drug abuse is

reflected by the fact that he wrote to state authorities to express con-

cern that his patients might be selling their medications. J.A. 126,

180-81. Appellant exercised minimal medical oversight of his

patients’ dosing practices. J.A. 184, 208, 249, 351, 416-17. He

ignored evidence of the danger of prescribing drugs to certain

patients, the drug-seeking behavior of others, and the drug abuse of

still others. J.A. 177-78, 180-82, 185, 207-08, 233, 250-51, 253, 350,

353, 359, 390, 392, 518-23, 530-31, 538, 542. After several of Appel-

16

Appellant does not contest the evidence as to either of the first two

elements.

22 UNITED STATES v. MCIVER

lant’s patients stopped seeing him, they suffered significant drug

withdrawal effects, at least in one instance requiring hospitalization.

J.A. 211-12, 397. Dr. Storick testified at length about the extent to

which Appellant’s procedures went beyond the parameters of legiti-

mate medical practice. J.A. 523, 527, 533, 542-43.

This evidence amply supports a finding that McIver’s actions went

beyond the legitimate practice of medicine and were "no different

than [those of] a large-scale pusher," Tran Trong Cuong, 18 F.3d at

1138, and is thus sufficient to support each of McIver’s § 841(a)(1)

convictions.

3. Counts 11 & 12, Unlawful Distribution of a Controlled

Substance Resulting in Death

In order to prove Counts 11 and 12, the government had to estab-

lish that McIver unlawfully distributed drugs to Shealy that resulted

in his death. § 841(b)(1)(C). McIver argues only that the government

did not present sufficient evidence to demonstrate that Shealy died

from the drugs that he prescribed. Again, we disagree.

Both the pathologist who conducted Shealy’s autopsy and the

forensic toxicologist who examined his bodily fluids testified that

Shealy died as a result of an oxycodone overdose. J.A. 419-20, 427-

30, 456. The pathologist further testified that the amount of oxyco-

done in his system at the time of death was consistent with the

amount prescribed by McIver. J.A. 427-30. This testimony is suffi-

cient to support McIver’s conviction on Counts 11 and 12.

III.

In light of the foregoing, each of McIver’s convictions is

AFFIRMED.