United States v. Armstrong

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

November 21, 2008

No. 07-30286 Charles R. Fulbruge III

Clerk

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

CHERLYN R. ARMSTRONG, also known as Cherlyn Cookie Armstrong, also

known as Cherlyn Cookie Armstrong-Scherer, also known as Cherlyn Cookie

Prejean, also known as Cherlyn Armstrong Scherer Prejean; DR. SUZETTE

CULLINS

Defendants-Appellants

Appeals from the United States

District Court for the Eastern District of Louisiana

Before HIGGINBOTHAM, STEWART, and SOUTHWICK, Circuit Judges.

CARL E. STEWART, Circuit Judge:

Defendants Cherlyn Armstrong Scherer Prejean (“Armstrong”), the

Scherer Corporate Defendants,1 and Dr. Suzette Cullins (“Dr. Cullins” and

collectively, the “Defendants”) were convicted following a jury trial of offenses

relating to a scheme to illegally dispense certain controlled substances in

1

The Scherer Corporate Defendants are the following entities: Scherer Physicians

Weight Loss Center, Inc.; Scherer's Medical Center, Inc.; Scherer's Slidell Medical Center,

L.L.C.; Scherer's Gretna Medical Center, L.L.C.; Mia's Pharmacy, L.L.C.; Mia's Pharmacy

Slidell, L.L.C.; Bella Mia Holdings, L.L.C.; C.C. Armstrong Co., L.L.C.; and the Ballard Co.,

L.L.C.

No. 07-30286 & No. 07-30320

violation of the Controlled Substances Act (the “CSA”), 21 U.S.C. §§ 846, 841(a).

Armstrong and Dr. Cullins appeal from their convictions under the CSA.

Armstrong also challenges certain evidentiary rulings that she argues tainted

her conviction for conspiracy to commit money laundering. Dr. Cullins appeals

the reasonableness of her sentence. For the following reasons, we AFFIRM in

part, REVERSE in part, and REMAND to the district court.

FACTUAL AND PROCEDURAL BACKGROUND

Armstrong, a Registered Nurse, was the owner and operator of weight loss

and pain management clinics and pharmacies, located in Slidell, Metairie, and,

at various times, Harvey or Gretna, Louisiana. Her family members provided

continual and active assistance in their operation. From approximately January

1998 to August 2000, the clinics’ focus was on weight loss, and prescriptions

were given for controlled-substance weight-loss drugs. In or around August

2000, the focus changed to pain management, and prescriptions were given for

controlled-substance pain management drugs. The three drugs (“trinity drugs”)

most often prescribed at the clinics and dispensed at the pharmacies during this

time included: (1) Hydrocodone;2 (2) Alprazolam or Diazepam;3 (3) and

Carisoprodol.4 Armstrong’s pharmacies only stocked and sold the generic

2

Hydrocodone is a Schedule III controlled substance sold under the names of Lortab,

Lorcet, and Vicodin.

3

Alprazolam is a Schedule IV controlled substance sold under the name Xanaz;

Diazepam is a Schedule IV controlled substance sold under the name of Valium.

4

Carisoprodol is a muscle relaxer sold under the name Soma and is not a controlled

substance.

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No. 07-30286 & No. 07-30320

versions of the trinity drugs. The drugs have a high abuse potential and a high

illegal street market value.

After an investigation, agents of the Drug Enforcement Agency (“DEA”)

shut the clinics down in April 2005. Armstrong, the various corporate entities

which she established, including the pharmacies and clinics (“Corporate

Defendants”), and three physicians employed at the clinics5 were charged with

knowingly and intentionally conspiring to dispense Schedule III and IV

controlled substances in violation of the CSA. See 21 U.S.C. § 846. A

superseding indictment was later returned charging an additional twenty-six

specific instances (counts 2-27) in which Armstrong, the clinics, and the

pharmacies, aided and abetted by persons known and unknown–including Drs.

Cullins, Guenther, and DeLoach–knowingly and intentionally dispensed

controlled substances, outside the scope of professional practice and not for a

legitimate medical purpose, in violation of 21 U.S.C. § 841(a)6 and 18 U.S.C. § 2.

5

Dr. Joseph Guenther, Dr. Betty DeLoach, and Dr. Cullins.

6

Section 841(a) provides:

(a) Unlawful acts. Except as authorized by this subchapter, it shall be unlawful

for any person knowingly or intentionally–

(1) to manufacture, distribute, or dispense, or possess with intent to

manufacture, distribute, or dispense, a controlled substance[.]

21 U.S.C. § 841(a) (emphasis added). Those authorized by the CSA are described in § 822:

Persons registered by the Attorney General under this subchapter to . . . dispense

controlled substances . . . are authorized to . . . dispense such substances or

chemicals (including any such activity in the conduct of the research) to the

extent authorized by their registration and in conformity with the other

provisions of this subchapter.

21 U.S.C. § 822(b) (emphasis added). And finally, 21 C.F.R. § 1306.04, which proscribes the

3

No. 07-30286 & No. 07-30320

These alleged instances involved either an undercover DEA agent as a patient

or an actual patient as an informant at the direction of the DEA. Lastly,

Armstrong and the Corporate Defendants were charged with conspiring to

launder money involving the proceeds of the illegal drug activity, in violation of

18 U.S.C. § 1956(h) (count 28).

Prior to trial, two of the co-defendant physicians named in the superseding

indictment, Dr. Guenther and Dr. DeLoach, pled guilty to various charges. Dr.

Guenther pled guilty to all charged counts,7 and Dr. DeLoach pled guilty to

misprision of a felony in violation of 18 U.S.C. § 4. The remaining Defendants

–Armstrong, Dr. Cullins, and the Corporate Defendants–proceeded to trial. The

jury found all Defendants guilty of the conspiracy charged in count one and

various substantive counts charged in counts two through 27 of the superseding

conduct of those registered under the CSA to dispense controlled substances, states in relevant

part:

A prescription for a controlled substance to be effective must be issued for a

legitimate medical purpose by an individual practitioner acting in the usual

course of his professional practice. The responsibility for the proper prescribing

and dispensing of controlled substances is upon the prescribing practitioner, but

a corresponding responsibility rests with the pharmacist who fills the

prescription. An order purporting to be a prescription issued not in the usual

course of professional treatment or in legitimate and authorized research is not

a prescriptions within the meaning and intent of section 309 of the Act (21

U.S.C. § 829) and the person knowingly filling such a purported prescription, as

well as the person issuing it, shall be subject to the penalties provided for

violations of the provisions of law relating to controlled substances.

21 C.F.R. § 1306.04(a) (emphasis added).

7

Dr. Guenther pled guilty to count one, conspiracy to illegally dispense controlled

substances, and counts 13, 16, 21, and 25 for illegal dispensation of controlled substances.

4

No. 07-30286 & No. 07-30320

indictment.8 Armstrong and the Corporate Defendants were also found guilty on

count 28, conspiring to commit money laundering.

Following trial, Armstrong and Dr. Cullins filed a motion for judgment of

acquittal or in the alternative for a new trial, which was denied. The

Government filed sentencing memoranda seeking an upward departure based

on injuries to specific victims, including patients, their families, and the

community, because these victims were not taken into account by the Sentencing

Guidelines. Armstrong and Dr. Cullins responded. At the sentencing hearing,

the district court adopted the factual findings and recommendations of the pre-

sentencing report (“PSR”). Dr. Cullins did not object to the factual findings of

her PSR. The district court sentenced Dr. Cullins to sixty-month sentences for

each of her CSA convictions, to be served concurrently. Thereafter, the district

court also sentenced Armstrong to sixty-month concurrent sentences for each of

her CSA convictions, and a seventy-month concurrent sentence for conspiracy

to commit money laundering. Armstrong, Dr. Cullins, and Corporate

Defendants timely appealed. This Court dismissed Corporate Defendants’

appeal for want of prosecution on August 24, 2007.9 As a result, this Court

reviewed only the appeals of Armstrong and Dr. Cullins (together, the

“Appellants”).

8

Armstrong was convicted on all counts except counts 2, 18, and 24. Cullins was

convicted only on counts 3, 5, 7, 8, and 23.

9

On June 4, 2007, this Court dismissed Corporate Defendants’ appeal for want of

prosecution and subsequently reinstated it providing additional time to pay the docketing fees.

The appeal was again dismissed for want of prosecution on August 24, 2007.

5

No. 07-30286 & No. 07-30320

ILLEGAL DISPENSATION OF CONTROLLED SUBSTANCES

I. Sufficiency of the Evidence

A. Lack of Expert Testimony

Armstrong and Dr. Cullins argue that because the Government failed to

present expert testimony regarding what the professional standard of care

should be for a physician prescribing controlled substances to chronic pain

patients, there was insufficient evidence for the jury to find beyond a reasonable

doubt that Appellants’ conduct was outside the course of professional conduct.

1. Standard of Review

In evaluating whether the evidence produced at trial is sufficient to

support a jury conviction, this Court examines whether a rational jury, viewing

the evidence in the light most favorable to the prosecution, could have found the

essential elements of the offense to be satisfied beyond a reasonable doubt. See

United States v. Miles, 360 F.3d 472, 476-77 (5th Cir. 2004). In reviewing the

evidence, all reasonable inferences are drawn in favor of the jury’s verdict. Id.

This Court does not evaluate whether the jury’s verdict was correct, but rather,

whether the jury’s decision was rational. Id. If the evidence “gives ‘equal or

nearly equal circumstantial support to a theory of guilt or innocence, we must

reverse the conviction, as under these circumstances a reasonable jury must

necessarily entertain a reasonable doubt.’” United States v. Rivera, 295 F.3d 461,

466 (5th Cir. 2002) (internal citations omitted).

2. Discussion

The evidence presented at trial, viewed in the light most favorable to the

Government, supports the jury’s guilty verdicts as to Armstrong and Dr. Cullins

on the conspiracy charge under § 846 (count one) and on the substantive

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No. 07-30286 & No. 07-30320

violations under § 841 (counts 2-27). Even without expert testimony, the

Government demonstrated at trial that Armstrong and her co-conspirators

organized and ran a continuous scheme of delivering controlled substances to a

high volume of individuals for profit rather than a valid medical purpose.

Although Armstrong and Dr. Cullins argue that the Government did not

meet its evidentiary burden because it did not put on expert testimony, “expert

testimony is not always required in order to show that a physician is acting for

other than proper medical purposes [in violation of § 841].” United States v.

Chin, 795 F.2d 496, 503 (5th Cir. 1986) (citing United States v. Rosen, 582 F.2d

1032, 1037 n.10 (5th Cir. 1978)). While expert testimony may be both

permissible and useful, a jury can reasonably find that a doctor prescribed

controlled substances not in the usual course of professional practice or for other

than a legitimate medical purpose from adequate lay witness evidence

surrounding the facts and circumstances of the prescriptions. United States v.

Rogers, 609 F.2d 834, 839 (5th Cir. 1980). There are § 841 cases in which the

trier of fact does not need outside, specialized knowledge to understand the

evidence or determine the facts.10 See United States v. Word, 806 F.2d 658, 663-

64 (6th Cir. 1986) (finding that expert testimony about the usual course of

professional conduct and legitimate medical purposes may help a jury, it was not

necessary on the facts of the case on appeal); United States v. Smurthwaite, 590

F.2d 889, 892 (10th Cir. 1979) (finding expert testimony unnecessary to prove

prescriptions were outside of professional practice where evidence included visits

10

The Federal Rules of Evidence instruct that expert testimony is not automatically

admitted, but only when “scientific, technical, or other specialized knowledge will assist the

trier of fact to understand the evidence or determine a fact issue.” FED. R. EVID. 702

(emphasis added).

7

No. 07-30286 & No. 07-30320

less than five minutes in length, charging patients per prescriptions, little or no

physical examination of patients at initial or follow-up visits, and defendant had

some knowledge that prescriptions pills were used for parties rather than

weight-loss); United States v. Larson, 507 F.2d 385, 387 (9th Cir. 1974) (similar).

Jurors have had a wide variety of their own experiences in doctors’ care over

their lives, thus and expert testimony is not necessarily required for jurors to

rationally conclude that seeing patients for as little as two or three minutes

before prescribing powerful narcotics is not in the usual course of professional

conduct.

There are also undoubtably situations where evidence as to the usual

course of professional conduct might be essential proof of the Government’s case.

But here there is ample evidence of conduct outside the usual course of any

professional practice and/or without medical purpose. Specifically, the

Government presented evidence of: (1) long-term rather than short-term

treatment, which conflicted with the clinics’ own medical guidelines regarding

chronic pain management;11 (2) an extremely high volume of patients seen each

day (as many as 300 patients in a four-to-six hour time frame); (3) short

durations for patient visits;12 (4) a lack of individualization of the prescriptions;13

11

Other clear violations of the clinics’ own policies found in the patient files include:

failing to conduct drug and urine tests on any patients, refusing to discuss drug addiction with

families attempting to intervene, and illegal filling of prescriptions by Armstrong’s pharmacies

before the issue date on the prescription.

12

Dr. Cullins wrote 78% of the trinity drug prescriptions for two weeks in January and

two days in April 2005, working only fifty-four hours and averaging no more than ninety-nine

seconds per patient.

13

On almost every occasion, physicians employed by Armstrong prescribed the same

dosage units of the trinity drugs–90 Hydrocodone, 90 Soma, and 30 Xanax or Valium.

8

No. 07-30286 & No. 07-30320

(5) prescriptions prepared in advance requiring only the doctor’s signature; (6)

phony pre-printed doctor’s medical comments placed in patient files; (7) a lack

of meaningful physical examination on initial and repeat visits;14 (8) a lack of

required documentation of a physical injury; (9) false documentation and

outdated MRIs presented by patients and accepted by treating physicians who

continued to dispense the trinity drugs; (10) sham physical therapy sessions;15

(11) a cash-only payment policy; and (12) clinic-hopping among Armstrong’s

clinics.16 Dr. Guenther also testified that each time he attempted to discuss

clinic problems with Armstrong, such as the lack of physical therapy or clinic-

hopping, Armstrong told him that she would “take care of it,” although no

changes were made, and on one such occasion Armstrong suggested Dr.

Guenther simply “stop taking notes.” Such evidence demonstrates conduct

outside of the usual course of professional practice.

And although the Government failed to present expert testimony

regarding the recognized practices of chronic pain management facilities, the

jury did hear from fact witnesses about their discomfort with the clinics’

operations. Dr. Hope Ewing testified that within an hour of meeting Armstrong

about bringing her pain management patients to the clinics, she had a “strong

feeling that this was not a suitable place for pain management,” because she was

14

DEA informant Nicole Buckeridge testified about her twenty visits to the clinic when

she wore a recording device, and the grand jury heard the pertinent parts of her visits where

practically no exam was conducted.

15

Physical therapy sessions, if given, would last two to five minutes and consist of

nothing more than sitting in a vibrating chair.

16

Clinic-hopping effectively permitted patients to acquire a subsequent fourteen-day

supply of the trinity drugs before their previous fourteen-day supply had run out.

9

No. 07-30286 & No. 07-30320

told that she would have to see six to seven patients an hour, which she believed

was insufficient for pain management. The Government also presented

testimony of two physicians detailing the irregularities that caused them to stop

working at the clinics. Dr. Michael Hunter, who quit after only a month at the

clinics, stated that Armstrong told him that she gave prescriptions to patients

because they expected to receive them. After seeing Armstrong in the parking

lot exchanging money with a patient for whom he had refused to write a

prescription, Dr. Hunter believed that patients were getting drugs without

seeing a doctor. Dr. Gilbert Mason, who departed after six weeks, testified that

he felt pressured by Armstrong to write prescriptions and to see more patients.17

Additionally, Dr. Cullins admitted at trial that she had: (1) made poor

medical judgments; (2) identified patients as “clinic hoppers”; (3) issued multiple

prescriptions for overlapping treatment periods to patients; (4) violated the

Louisiana Pain Management Standards; and (5) been warned in March by

Armstrong that the DEA might be sending in undercover agents since it had

publicly shut down some other pain clinics. Despite having previously caught

DEA informant Buckeridge “clinic hopping” and noting the word “jumper”

multiple times in the clinics’ files, Dr. Cullins continued to see Buckeridge and

write her trinity drug prescriptions. Dr. Cullins even signed two post-dated

prescriptions, seized from one of the pharmacies on April 11, 2005. The

prescriptions purported to have been written April 23, 2005, but were filled by

17

Armstrong relies on the two expert witnesses that she presented at trial who opined

that her conduct was not outside the scope of professional pain management to argue that the

jury could not have convicted her of illegal dispensation. Although an expert’s opinion as to

an ultimate fact issue may be helpful, the jury was instructed that it is not required to follow

the opinions of the experts who testify. The defense presented its own expert testimony as to

the appropriateness of the professional conduct at issue, and the jury was not persuaded.

10

No. 07-30286 & No. 07-30320

the pharmacy on April 9, 2005. Further, an analysis of prescriptions written by

Dr. Cullins was presented to the jury. It showed that Dr. Cullins was seeing and

prescribing the trinity drugs for several hundred patients a day, with a high of

302 in one day. Although Dr. Cullins offered explanations for her conduct, the

jury was entitled to reject most of her explanations.18

Yet Armstrong and Dr. Cullins contend that in this case expert testimony

was necessary because the facts and circumstances surrounding the

prescriptions could not establish that they acted outside the scope of professional

practice in dispensing the controlled substances. Appellants’ reliance on two

cases from other circuits, United States v. Bek, 493 F.3d 790 (7th Cir. 2007), and

United States v. Cuong, 18 F.3d 1132 (4th Cir. 1994), as support for this

proposition is misplaced. In Bek, the Seventh Circuit addressed a sufficiency of

the evidence challenge to convictions for illegally dispensing controlled

substances to three deceased patients because they were unavailable to testify

at trial. Bek, 493 F.3d at 799. That court reversed only one substantive count

where the Government did not present expert testimony, medical records, or

other evidence regarding the deceased patient’s condition or the doctor’s

treatment of her. Id. In fact, the court recited the evidence presented that it

considered sufficient to satisfy the criminal standard to convict a practitioner

under § 841(a)(1), reflecting many of the same facts in the present case, such as

uniform and careless medical exams and a disregard for signs of drug abuse. See

18

Dr. Cullins was convicted on five substantive counts and acquitted on five others.

Also, the jury was given a deliberate blindness instruction. To the extent that Dr. Cullins

argues that she was unaware of certain practices at the clinics and that Armstrong failed to

relay the warnings from patients’ family members regarding drug addictions, the jury could

have reasonably concluded that Dr. Cullins deliberately turned a blind eye to it all.

11

No. 07-30286 & No. 07-30320

id. Similarly in Cuong, the Fourth Circuit reversed multiple § 841 convictions

where the Government failed to present testimony from any of the patients to

whom the illegal dispensations were made. 18 F.3d at 1142-43.

Thus, Bek and Cuong propose that evidence regarding the particular

patient visit or treatment giving rise to the § 841 charge should be presented at

trial in order for a conviction on the charge to withstand a motion for acquittal.

See id. In this case, all of the substantive § 841 counts (counts 2-27) were based

on occasions in which practitioners dispensed controlled substances to either

DEA informant Buckeridge or undercover DEA Agent David Gauthreaux.

Because both testified at trial as to each of their clinic visits and the treatment

they received, recordings of the visits with Dr. Cullins were played for the jury,

and medical records were introduced into evidence respecting counts 2-27, the

reasoning of neither Bek nor Cuong would require acquittal.

Therefore, we are not persuaded that expert testimony was required to

establish criminal liability on the facts of this case.

B. Non-Registrant’s Guilt for Substantive Violations

Armstrong argues that counts 2-27 must fail because she is not registered

to dispense controlled substances under the CSA and therefore cannot be held

liable as a principal for substantively violating § 841. In response, the

Government contends that the jury convictions should stand with Armstrong

charged and convicted as both a principal and an aider and abetter. The

Government also asserts that because Armstrong was a nurse during the

conspiracy, she meets the definition of “practitioner” under the CSA and could

be prosecuted for illegal dispensing without relying on the conduct of a

registrant to establish liability.

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No. 07-30286 & No. 07-30320

1. Standard of Review

We review the sufficiency of an indictment de novo. United States v.

Lucas, 516 F.3d 316, 342 (5th Cir. 2008). Again, we evaluate the sufficiency of

evidence supporting a jury conviction by determining whether a rational jury,

viewing the evidence in the light most favorable to the prosecution, could have

found the essential elements of the offense to be satisfied beyond a reasonable

doubt. See Miles, 360 F.3d at 476-77.

2. Discussion

Armstrong was indicted on twenty-six counts of substantively violating

§ 841 of the CSA. Specifically, it was charged that she, along with her clinics

and pharmacies, aided and abetted by the registered physicians she employed,

illegally dispensed controlled substances outside the scope of professional

practice. Section 841 states: “Except as authorized by this subchapter, it shall

be unlawful for any person knowingly or intentionally . . . to manufacture,

distribute, or dispense, or possess with intent to manufacture, distribute, or

dispense, a controlled substance.” 21 U.S.C. § 841 (emphasis added). The basic

proscription in § 841 applies to “any person” except those “authorized by this

subchapter” such as physicians registered with the Attorney General pursuant

to 21 U.S.C. § 822. The Supreme Court in United States v. Moore limited the

scope of the § 841 exception by holding that an authorized physician who issues

prescriptions outside the usual course of professional practice is subject to

punishment under § 841(a)(1) just as any other “drug pusher.” Moore, 423 U.S.

122, 138, 142-43 (1975). Thus, Armstrong contends that a charge for dispensing

controlled substances outside the scope of professional practice only applies

against registered physicians. Armstrong argues that because she was charged

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with illegally dispensing, and she is not a physician registered under the CSA,

the substantive counts of the indictment fail.

Armstrong argues that the law against dispensing applies only to

registered physicians, citing United States v. Albert, 675 F.2d 712 (5th Cir.

1982). In Albert, this Court rejected the argument that laypersons could not

conspire to dispense drugs illegally because they were not able to dispense drugs

in the first instance, relying on the rule that a “person may be guilty of

conspiring although incapable or committing the substantive offense.” Id. at

715. Although this Court in Albert appeared to accept the assertion that the law

against dispensing applies only to medical practitioners, id. (“the [co-conspirator

laypersons] need not themselves be able to dispense drugs”), its dicta is not

controlling. However, an examination of the CSA definitions of “dispense,”

“distribute,” “practitioner,” and “administer,”19 causes us to reject the

Government’s assertion that Armstrong may be convicted as a principal under

19

“Dispense” is defined as:

to deliver a controlled substance to an ultimate user or research subject

by, or pursuant to the lawful order of, a practitioner, including the

prescribing and administering of a controlled substance and the

packaging, labeling or compounding necessary to prepare the substance

for such delivery. The term ‘dispenser’ means a practitioner who so

delivers a controlled substance to an ultimate user or research subject.

21 U.S.C. § 802(10). In contrast, “distribute” means: “to deliver (other than by administering

or dispensing) a controlled substance or a listed chemical.” 21 U.S.C. § 802(11). “Practitioner”

refers to “a physician . . . pharmacy . . . or other person licensed, registered, or otherwise

permitted by the United States or the jurisdiction in which he practices or does research, to

distribute, dispense, . . [or] administer . . . a controlled substance in the course of professional

practice or research.” § 802(21). Finally, “administer” means “the direct application of a

controlled substance to the body of a patient . . . by – (A) a practitioner (or, in his presence, by

his authorized agent), or (B) the patient . . . at the direction and in the presence of the

practitioner . . .” § 802(2).

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No. 07-30286 & No. 07-30320

§ 841. The logical reading of the statutory definitions of “dispense” and

“distribute” that led this Court in United States v. Leigh to determine a doctor

writing illegal prescriptions must be charged with dispensing rather than

distributing, counsels that a non-registrant who does not write prescriptions but

otherwise acts to provide drugs would not properly be charged with dispensing

rather than distributing. See Leigh, 487 F.2d 206 (5th Cir. 1973) (holding

reaffirmed by United States v. Harrison, 628 F.2d 929 (5th Cir. 1980)).

On each of the substantive counts, Armstrong was charged and convicted

pursuant to both 21 U.S.C. § 841(a) and 18 U.S.C. § 2, as both a principal and

an aider and abettor, or–the more correctly descriptive in this case–a

commander or inducer. See Adam H. Kurland, To “Aid, Abet, Counsel,

Command, Induce, or Procure the Commission of an Offense”: A Critique of

Federal Aiding and Abetting Principles, 57 S.C. L. Rev. 85, 87 (2005) (discussing

the confusion caused by using the traditional phrase “aid and abet” to describe

conduct captured by 18 U.S.C. § 2’s extension of liability to those who cause

illegal acts to be done). Section 2(b) states: “Whoever willfully causes an act to

be done which if directly performed by him or another would be an offense

against the United States, is punishable as a principal.” 18 U.S.C. § 2(b)

(emphasis added). The historical and statutory note for § 2 further states that

“[o]ne who puts in motion or assists in the illegal enterprise or causes the

commission of an indispensable element of the offense by an innocent agent or

instrumentality, is guilty as a principal even though he intentionally refrained

from the direct act constituting the completed offense.” Thus pursuant to § 2(b)

Armstrong, a non-registrant, may be convicted for either “aiding and abetting”

or “willfully causing” the dispensing of controlled substances beyond the scope

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No. 07-30286 & No. 07-30320

of professional practice. The evidence must prove that Armstrong had the

mental state necessary to violate the underlying criminal statute and that she

willfully caused another to commit the necessary act. See United States v. Levy,

969 F.2d 136, 141 (5th Cir. 1992) (noting that § 2(b) does not require shared

criminal intent; only the defendant charged need have criminal intent, and the

individual whom defendant caused to perform the criminal act may be innocent).

Because Dr. DeLoach and Dr. Guenther were charged with illegal

dispensing but entered plea bargains with the Government and did not go to

trial, Armstrong was convicted on twelve counts (counts 4, 6, 9-10, 12-13, 15-16,

19, 21, and 25-26) where the registrant who was charged was not tried.

Examining the record, there is evidence sufficient for a rational jury to have

convicted Armstrong for these counts under 18 U.S.C. § 2 regardless of whether

a non-registrant may be convicted of illegally dispensing controlled substances.20

See United States v. Neal, 951 F.2d 630, 633 (5th Cir. 1992) (“Aiding and

abetting is not a separate offense, but it is an alternative charge in every

indictment, whether explicit or implicit.”); United States v. Smith, 584 F.2d 731,

734 (5th Cir. 1978) (stating that it is “beyond controversy, [that pursuant to

§ 2(b)] the accused may be convicted as causer, even though not legally capable

of personally committing the act forbidden by a Federal statute”). The evidence

supported a jury conclusion that the prescriptions in those counts were in fact

issued without a legitimate medical purpose or beyond the scope of professional

practice, and that Armstrong aided or induced the writing of such prescriptions.

20

Armstrong’s convictions for those counts (3, 5, 7, 8, 22 and 23) where the charged

doctor (or in count 22, the charged pharmacy) was convicted present no issue because the jury

convicted all charged with membership in the conspiracy and the district court gave the

Pinkerton jury instruction regarding co-conspirators’ liability for substantive counts.

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No. 07-30286 & No. 07-30320

More problematic are five additional counts (11, 14, 17, 20, and 27) where

Armstrong was convicted but Dr. Cullins, the defendant physician, was tried and

acquitted. The facts and proceedings of this case stands in contrast to United

States v. Standefer, where the Supreme Court upheld petitioner’s conviction for

aiding and abetting even though the alleged principal had been acquitted. 447

U.S. 10, 25 (1980) (noting that symmetry of results may be intellectually

satisfying but is not required). The principal had been acquitted in an earlier

trial, and the jury instructions given in Standefer’s trial required the jury to find

his co-defendant guilty of the substantive offense in order to convict Standefer

of aiding and abetting him. Id. at 13 n.6, 20 n.14.

Here, however, the same jury that convicted Armstrong considered the

guilt of and acquitted Dr. Cullins. The jury concluded that there was at least

reasonable doubt whether the prescriptions Dr. Cullins wrote on those five

occasions were illegitimate. Thus, as to these counts, there was no crime for

Armstrong to have abetted. See Standefer, 447 U.S. at 20 n.14 (distinguishing

instant case, where the Government proved the co-defendant had committed the

substantive violation, from cases holding that “there can be no conviction for

aiding and abetting someone to do an innocent act”) (citing Shuttlesworth v.

Birmingham, 373 U.S. 262, 265 (1963)); cf. United States v. Yost, 24 F.3d 99, 104

(10th Cir. 1994) (“All that is required for a conviction based on 18 U.S.C. § 2 is

a finding that the [defendant] aided someone in committing the crime.”); United

States v. Martin, 747 F.2d 1404, 1407 (11th Cir. 1984) (noting that one must “aid

or abet or procure someone else to commit a substantive offense”).

Even on a theory that Armstrong caused or induced non-culpable Dr.

Cullins to write the prescriptions, it is whether they were written “without a

17

No. 07-30286 & No. 07-30320

legitimate purpose” or “outside the course of professional conduct” that

differentiates dispensing from illegal dispensing. On these counts there is no

evidence that Armstrong signed the prescriptions herself or otherwise was

aware, even if Dr. Cullins was not, that there was no legitimate medical purpose

for the prescriptions. Cf. Smith, 584 F.2d at 734 (holding that defendant could

properly be convicted of failure to maintain records required of a licensed dealer,

when he, a non-licensed employee of the dealer, knowingly sold and delivered

firearms without noting the required personal information of the purchaser);

also Cuong, 18 F.3d at 1142 (“A defendant is entitled to individual consideration

of every count in an indictment by the jury and evidence sufficient to convict on

each count beyond a reasonable doubt, if he is to be convicted.”).

Considering that the jury found at least reasonable doubt that Dr. Cullins

had issued the prescriptions other than for a legitimate medical purpose in the

course of professional conduct, we find insufficient evidence for the jury to have

reasonably concluded on these charges that they in fact were illegitimate

prescriptions and Armstrong knew so.21 Therefore, we reverse Armstrong’s

convictions for counts 11, 14, 17, 20, and 27.22

II. Jury Charges

Armstrong and Dr. Cullins both challenge the sufficiency of the jury

instructions administered by the district court. Appellants argue that the

21

We do not decide if a non-registrant who did attempt to write prescriptions would be

liable for illegally dispensing as opposed to distributing. See United States v. Johnson, 831

F.2d 124 (6th Cir. 1987) (upholding conviction for distributing controlled substances by the

issuance of prescriptions outside the usual course of medical practice, even though defendant

was not a licensed physician).

22

Because of our disposition of Armstrong’s non-registrant arguments, we need not

address her constitutional vagueness challenge to the substantive CSA counts.

18

No. 07-30286 & No. 07-30320

instructions did not correctly state the law, instead allowing conviction based on

a civil negligence standard and exposing Appellants to criminal conviction for

malpractice. Specifically, Appellants challenge the district court’s instruction

to the jury that it could find them guilty of violating 21 U.S.C. § 841 if they

prescribed controlled substances either without a valid medical purpose or

beyond the scope of professional practice. They assert that this disjunctive

standard effectively permitted conviction for negligence because it eliminated

the mens rea of the crime–“lack of a legitimate medical purpose”–and eviscerated

any good faith defense that Armstrong mounted. Finally, Dr. Cullins argues

that the good faith instruction did not cure the district court’s refusal to charge

in the conjunctive because (1) it applied only the substantive counts and not to

the conspiracy, and (2) it was couched as a defense rather than as an element of

the Government’s case.

In response, the Government argues that the instructions, taken as a

whole, properly apprised the jury of the applicable law. The Government

asserts that this Court has sustained illegal dispensing convictions using similar

phraseology adopted by the district court in this case. The Government points

to the fact that nowhere in the plain text of the three provisions that govern the

dispensing of controlled substances, 21 U.S.C. §§ 841 and 822(b) and 21 C.F.R.

§ 1306.04, is there a double statutory element permitting conviction only if a

prescription is issued for both no “legitimate medical purpose” and also outside

the “usual course of professional practice”. The Government also notes that

many courts, including the Fifth Circuit in United States v. Fuchs, 467 F.3d 889

(5th Cir. 2006), have recognized that the two clauses “legitimate medical

19

No. 07-30286 & No. 07-30320

purpose” and “usual course of professional conduct” are often used

interchangeably.23

Finally, the Government notes that Dr. Cullins did not object to the good

faith jury instruction below, and that the instruction, which mirrored a good

faith instruction approved by this Court’s precedent, was not in plain error.

Moreover, the Government contends that because the jury charge properly

linked the substantive § 841 instruction back into the instruction for conspiracy,

the good faith charge in the former was legally sufficient.

A. Standard of Review

A properly objected-to instruction is reviewed for abuse of discretion.

Fuchs, 467 F.3d at 900. Whether an instruction misstated an element of a

statutory crime is reviewed de novo. United States v. Guidry, 406 F.3d 314, 321

(5th Cir. 2005) (citation omitted). In conducting that review, this Court

“consider[s] whether the jury instruction, taken as a whole, is a correct

statement of the law and whether it clearly instructs jurors as to the principles

of the law applicable to the factual issues confronting them.” Guidry, 406 F.3d

at 321 (emphasis added).24 A single instruction to a jury should not be judged

23

Armstrong also argues that the statute is ambiguous and thus the rule of lenity

requires the court to adopt the narrowest reading of the criminalized conduct, the conjunctive

liability instruction. The CSA provides a clear standard of liability, making the rule of lenity

inapplicable. Further, the rule of lenity has been routinely rejected in prosecutions under the

CSA. See Gore v. United States, 357 U.S. 386, 391 (1958).

24

This standard guides our analysis of an appeal for failure to give defendant’s

requested instruction as well as what jury instruction the district court did give. United States

v. Simmons, 374 F.3d 313, 319 (5th Cir. 2004) (appeal for failure to give defendant’s requested

defense theory instruction reviewed for whether the court’s charge, as a whole, was correct

statement of law and clearly instructed jurors as to the principles of law applicable to the

factual issues confronting them); but see United States v. Nguyen, 493 F.3d 613, 623 (5th Cir.

2007) (reviewing a district court’s refusal to include a defendant’s proposed jury instruction in

20

No. 07-30286 & No. 07-30320

in isolation. Id. Any error in the jury instruction is subject to harmless error

review. United States v. Patterson, 431 F.3d 832, 837 (5th Cir. 2005); see FED.

R. CRIM. P. 52(a) (standard for harmless error review).

The failure to object timely to a jury instruction is subject to plain error

review. See Fuchs, 467 F.3d at 901 (the court will reverse only if (1) there was

an error, (2) that was clear and obvious, and (3) that affected the defendant’s

substantial rights causing a miscarriage of justice).

B. Discussion

Although a close question, the complete context of the jury charge properly

apprised the jurors of the correct legal standards and burdens to be met by the

prosecution. For the reasons discussed below, based on the relevant statutory

language, regulation, Moore, and Fifth Circuit precedent, we conclude that these

jury instructions, taken as a whole, provided a correct statement of the law.25

To convict the defendants of illegally dispensing controlled substances in

violation of 21 U.S.C. § 841(a)(1), the Government was required to prove “(1) that

[they] . . . dispensed a controlled substance, (2) that [they] acted knowingly and

intentionally, and (3) that [they] did so other than for a legitimate medical

purpose and in the usual course of [ ] professional practice.” United States v.

the charge for abuse of discretion). The inquiry is whether the jury charge, as a whole,

correctly and clearly instructed the jurors as to the law and issues before them.

25

Appellants assert that Fifth Circuit case law requires this “legitimate medical

purpose” element under United States v. Rosen, 582 F.2d 1032 (5th Cir. 1978) (“To convict [the

defendant doctor], it was necessary for the government to prove (1) that he distributed or

dispensed a controlled substance, (2) that he acted knowingly and intentionally, and (3) that

he did so other than for a legitimate medical purpose and in the usual course of his professional

practice.”) (emphasis added)). This argument is unpersuasive. See Fuchs, 467 F.3d at 900-01

(reviewing for plain error and holding there is no clearly established Fifth Circuit law requiring

that the Government prove no “legitimate medical purpose” in a § 841(a)(1) prosecution).

21

No. 07-30286 & No. 07-30320

Norris, 780 F2.d 1207, 1209 (5th Cir. 1986) (quoting United States v. Rosen, 582

F.2d 1032, 1033 (5th Cir. 1978)). The third element is not expressly required by

the text of § 841, but relevant regulations provide that a controlled substance

can be dispensed by a prescription “issued 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).

The Supreme Court held in Moore, 423 U.S. at 138-43, that a registered

physician could be charged and convicted under § 841 of the CSA for drug

trafficking. Although the precise elements of a § 841 offense were not expressly

addressed in Moore, the Supreme Court rejected the “suggest[ion] that if a

registrant could be reached under § 841, he could not be prosecuted merely

because his activities fall outside the ‘usual course of practice.’” Id. at 139.

Under the Harrison Act, the predecessor to the CSA, “[p]hysicians who stepped

outside the bounds of professional practice could be prosecuted,” id. at 132, and

because Congress intended the CSA to strengthen rather than weaken prior

drug laws, a defendant physician could still be convicted under § 841 for conduct

that exceeded the bounds of professional practice. Id.

Moreover, a logical reading of 21 C.F.R. § 1306.04, the applicable

regulation, shows that liability is not conjunctive. See United States v. Hayes,

595 F.2d 258, 289 (5th Cir. 1979) (stating that § 1306.04 defines the

circumstances in which a registrant may be held to have violated the

proscription against manufacturing, distributing, or dispensing a controlled

substance contained in 21 U.S.C. § 841). The regulation states that for a

“prescription for a controlled substance to be effective[, it] must be issued for a

legitimate medical purpose by an individual practitioner acting in the usual

22

No. 07-30286 & No. 07-30320

course of his professional practice.” 21 C.F.R. § 1306.04. Both prongs are

necessary for a prescription to be legitimate; one is not sufficient. Id. The

logical converse is that a practitioner is unauthorized to dispense a controlled

substance if the prescription either lacks a legitimate medical purpose or is

outside the usual course of professional practice. See id.; see also United States

v. Nelson, 383 F.3d 1227, 1233 (10th Cir. 2004) (holding that the converse of the

affirmative requirement of a medical purpose in usual course of practice would

be if either was missing, not if both were missing). In other words, knowingly

distributing prescriptions outside the course of professional practice is a

sufficient condition to convict a defendant under the criminal statutes relating

to controlled substances.26

Specifically in the instant case, the district court instructed the jury in

relevant part that:

the defendants are charged with multiple violations of [§ 841(a)(1)]

and [18 U.S.C. § 2], which provide that it is unlawful for any person

knowingly or intentionally to illegally dispense controlled

substances not for a legitimate medical purpose or outside the usual

course of professional practice . . . .

In order for you [sic] find each of the defendants guilty . . . the

government would have to prove the following elements beyond a

reasonable doubt as to each count . . . [f]irst, that the physician

26

In Gonzales v. Oregon, the Supreme Court determined that § 1306.04 “does little

more than restate the terms of the statute itself.” 546 U.S. 243, 257 (2006) (holding that the

CSA did not authorize the Attorney General to prohibit doctors from prescribing regulated

drugs for use in physician-assisted suicide). The “regulation uses the terms ‘legitimate medical

purpose’ and ‘the course of professional practice,’ but this just repeats two statutory phrases

and attempts to summarize the others.” Id.; see 21 U.S.C. § 802(21) (using the phrase “in the

course of professional practice” as part of the definition of “practitioner”); see 21 U.S.C.

§ 830(b)(3)(A)(ii) (reporting provision of CSA defines “valid prescription” as one that is issued

“for a legitimate medical purpose by an individual practitioner . . . acting in the usual course

of the practitioner’s professional practice”).

23

No. 07-30286 & No. 07-30320

prescribed or dispensed the controlled substance alleged in the

indictment; [s]econd, that the physician did so knowingly and

intentionally; and [t]hird, that the physician prescribed or dispensed

the controlled substance either without a legitimate medical

purpose or outside the course of his or her professional practice.

The district court then explained that for a prescription to be authorized under

the CSA,

it must be issued for a legitimate medical purpose by an individual

acting in the usual course of his or her professional practice. Thus,

the final element the government must prove beyond a reasonable

doubt, is either that the physician prescribed or dispensed the drug

other than for a legitimate medical purpose or that the physician

dispensed the drug not in the usual course of medical practice.

A controlled substance is prescribed by a physician in the

usual course of professional practice, and therefore, lawfully, if the

substance is prescribed by him or her in good faith, medically

treating a patient in accordance with a standard of medical practice

generally recognized and accepted in the United States. Good faith

in this context means an honest effort to prescribe for a patient’s

condition in accordance with the standards of medical practice

generally recognized or accepted in this country.

(emphasis added). The district court then explicitly highlighted the broad

discretion afforded doctors in their medical practice:

In making a medical judgment concerning the right treatment

for an individual patient, physicians have discretion to choose

among a wide range of available options. Therefore, in determining

whether the defendant acted without a legitimate medical purpose,

you should examine all of the physician’s actions and the

circumstances surrounding them.

(emphasis added). This language describes lawful conduct as including a

doctor’s intentional effort to prescribe for the purpose of treating a patient’s

condition. As such, the district court essentially defined conduct “in the usual

24

No. 07-30286 & No. 07-30320

course of professional practice” as conduct that is intended “for a legitimate

medical purpose.” Our reading of the jury charge is bolstered by the

immediately following section of instruction, which, including factors identified

in Rosen, 582 F.2d at 1036, and subsequent case law, lists several examples of

the “[t]ypes of behavior from which you [the jury] could infer that the physician

was acting without a legitimate medical purpose or outside the usual course of

professional practice.” That the district court instructed that the same

behavioral examples could support a conclusion that a doctor acted either

outside the scope of professional practice or without a legitimate medical purpose

indicates that the phrases, although listed disjunctively, were considered

interchangeable.

The jury instructions in this case reflect previously approved instructions.

Implicit in the Supreme Court’s reasoning in Moore is the acceptance of the

single prong of “outside the scope of a professional practice.” See Moore, 423 U.S.

at 138-43. It also suggested the propriety of a jury instruction stating that the

defendant could be found guilty if the jury found beyond a reasonable doubt that

he dispensed the controlled substance “other than in good faith for detoxification

in the usual course of a professional practice and in accordance with a standard

of medical practice generally recognized and accepted in the United States.” Id.

at 139 (emphasis added). Notably, while the jury instructions were not the issue

directly before the Moore court, they did not include the requirement that the

Government prove beyond a reasonable doubt that the physician prescribed the

controlled substance other than for a legitimate medical purpose. Id.

In holding that the law requires an objective standard to determine what

constitutes the “usual course of professional practice,” this Court’s dicta in

25

No. 07-30286 & No. 07-30320

Norris, 780 F.2d at 1209, commented that an instruction to the jury to consider

“[w]hether [defendant] prescribed the drugs for what he subjectively considered

a legitimate medical purpose” was a “correct statement of law.” Id. What the

Norris court refers to as the instruction requiring “what he subjectively

considered a legitimate medical purpose” was that it was prescribed “lawfully,

if the substance is prescribed by him in good faith.” Id. at n.2. Furthermore,

Norris approved jury instructions substantially the same as those in this case.

See Norris, 780 F.2d at 1209 n.2 (containing language identical to the good faith

instruction given by the district court at Armstrong’s trial).27

In Fuchs, the defendant pharmacist challenged his convictions for

dispensing a controlled substance not in the usual course of professional practice

in violation of § 841(a)(1) based on the ground that “the government was

required to prove not only that he dispensed controlled substances outside the

usual course of professional practice but also that he did so without a legitimate

medical purpose.” Fuchs, 467 F.3d at 899. Neither the indictment nor the jury

instructions in Fuchs referred to “legitimate medical purpose.” Id. Under plain

error review, the court did not find the instructions problematic, recognizing that

this circuit’s previous case law listed as a single element of a § 841(a)(1) offense

that the dispensing be done “other than for a legitimate purpose and in the usual

course of his professional conduct.” Id. (citing Rosen, 582 F.2d at 1033). The

court in fact recognized that the phrases “without a legitimate medical reason”

and “beyond the course of professional practice” have been used interchangeably.

27

Moreover, because the jury charge properly linked the substantive § 841 instruction

back into the instruction for conspiracy, the good faith charge in the former was legally

sufficient. The jury had to find that Armstrong and Dr. Cullins knew the unlawful purpose

and joined in the conspiracy with the intent to further the unlawful purpose.

26

No. 07-30286 & No. 07-30320

Id. (citing United States v. Outler, 659 F.2d 1306, 1308-09 (5th Cir. 1981) (“[A]

physician may be charged with a criminal violation of § 841(a) . . . whenever he

or she prescribes a controlled substance without a legitimate medical reason . . .

[T]he qualifying condition of the offense, i.e., the element of behavior beyond

professional practice . . . .”)). Thus, relying on Moore, the Fuchs court concluded

that “[u]nder current law, a medical professional ‘can be prosecuted under § 841

when [his] activities fall outside the usual course of professional practice.’”

Fuchs, 467 F.3d at 901 (quoting Moore, 423 U.S. at 124)).

Finally, looking to the holdings of other circuits that have addressed this

question, we find additional support for upholding the jury instructions in this

case. The Tenth Circuit addressed similar arguments in United States v. Nelson,

383 F.3d 1227, 1230-33 (10th Cir. 2004). The Nelson court found Moore

controlling on the point of whether a disjunctive jury instruction properly stated

the law,28 and relied on Moore and § 1306.04 to hold that the phrases may be

listed in the disjunctive in the trial court’s jury charge. See also United States

v. Bek, 493 F.3d 790, 798 (7th Cir. 2007) (approving disjunctive jury instructions;

noting Government, to convict practitioner, must prove he prescribed controlled

substances outside course of professional practice; opinion does not state that the

prosecution must also prove that it was without legitimate medical purpose);

United States v. Limberopoulos, 26 F.3d 245, 249-50 (1st Cir. 1994) (finding that

“well-established case law mak[es] clear that the statute [§ 841] applies to a

pharmacist’s (or physician’s) drug-dispensing activities so long as they fall

outside the usual course of professional practice.”). In addition, the Fourth

28

The Nelson court recognized that the issue of disjunctive jury instructions was “not

the precise focus of [the Moore] opinion,” but found Moore’s discussion of jury instructions in

the case to be part of the careful, central analysis of the opinion. Nelson, 383 F.3d at 1232.

27

No. 07-30286 & No. 07-30320

Circuit has stated that requiring the prosecution to prove that the defendant

physician acted “for other than a legitimate medical purpose . . . plac[es] an even

heavier burden on the government than otherwise required to establish criminal

liability.” United States v. McIver, 470 F.3d 550, 559 (4th Cir. 2006) (citing

United States v. Alerre, 430 F.3d 681, 690-91 (4th Cir. 2005); Cuong, 18 F.3d at

1138).

Appellants urge this court to instead adopt the reasoning of the Ninth

Circuit in United States v. Feingold, 454 F.3d 1001 (9th Cir. 2006). That court

determined that “outside the scope of professional practice” was a mere

malpractice standard and that even intentional malpractice would be

inconsistent with Moore’s description of a doctor violating § 841(a) as one acting

as a drug pusher rather than a physician. Id. at 1010. Rather, the Feingold

court asserted that Moore requires that a doctor’s actions must completely

betray any semblance of legitimate medical treatment, and thus criminal

liability requires the higher showing that “the practitioner intentionally has

distributed controlled substances for no legitimate medical purpose and outside

the usual course of professional practice.” Id. (emphasis added). The court

continued by stating that the jury instructions cited and implicitly accepted in

Moore, as well as § 1306.04, support its interpretation of that standard. Id. at

1010-11. We are not persuaded by the reasoning of the Ninth Circuit in

Feingold. As discussed, the jury instructions implicitly approved by Moore

exclude any reference to medical purpose, and a logical reading of § 1306.04

supports the use of the disjunctive standard. Further, Feingold merely includes

the language of the jury instruction cited in Moore followed by a conclusory

statement that it “indicates that the jury could convict under § 841(a) if the

28

No. 07-30286 & No. 07-30320

government proved that the practitioner intentionally prescribed drugs for no

legitimate medical purpose.”29 Id.

Armstrong and Dr. Cullins also argue that the legitimate medical purpose

prong encompasses the necessary mens rea element of a § 841 offense, and

without it, the doctor will be criminally convicted for malpractice. Appellants

are mistaken. The mens rea of a § 841 offense is encompassed in the second and

third element of the crime - whether the practitioner intentionally dispensed

controlled substances without a legitimate medical purpose or outside the scope

of professional practice. See Nelson, 383 F.3d at 1232-33. The charge as a whole

in this case, including the good faith instruction, and instruction on the

discretion afforded to doctors, made it clear that the jury had to make a finding

with respect to Appellants' state of mind. These instructions distinguish a § 841

prosecution from a mere civil malpractice suit where a plaintiff may prevail

regardless of a defendant doctor’s good faith intent to act within the scope of

medical practice. See McIver, 470 F.3d at 559-60 (finding that good faith is not

a defense to a claim of medical malpractice) (citations omitted). Furthermore,

the standard of proof–beyond a reasonable doubt–additionally protects

practitioners from being exposed to criminal convictions on a mere civil

standard. See United States v. Vamos, 797 F.2d 1146, 1153 (2d Cir. 1986)

(rejecting the assertion that the jury instructions in that case exposed the

defendant to criminal liability for nothing more than mere malpractice by

pointing out that “in a criminal prosecution [a defendant] may be found guilty

29

Feingold interprets the instruction in Moore, which refers to acting outside the scope

of recognized professional practice, as including the requirement of “other than for a legitimate

medical purpose.” Feingold, 454 F.3d at 1010-11. This implies, as other cases have explicitly

noted, that the phrases are understood interchangeably. See Nelson, 383 F.3d at 1231.

29

No. 07-30286 & No. 07-30320

only upon proof beyond a reasonable doubt that he acted outside the scope of

medical practice”).

Finally, Armstrong and Dr. Cullins also argue that the jury instruction

regarding expert testimony compounded the error in instructing the jury that a

finding of conduct outside the usual course of professional practice sufficed to

convict under § 841.30 They did not object below, and we find no clear error in

the instruction.

Taken as a whole, the jury charge was a correct statement of law and

correctly presented the issues to the jury.31

CONSPIRACY TO COMMIT MONEY LAUNDERING

I. Evidentiary Issues

30

The district court instructed the jury that:

Expert testimony is not always required to show that a physician

is not acting for a legitimate medical purpose or in the usual

course of his or her professional practice. If any expert testimony

is offered, you are not bound by the expert testimony, and you

may instead consider all the facts and circumstances surrounding

the defendants’ prescribing practices as presented to you by other

evidence in the case.

31

Dr. Cullins also asserts that this court should adopt “no legitimate medical purpose”

as a separate element of the § 841 offense because Congress intended that conduct violating

§ 841 be more egregious than that violating § 842. However, whether a defendant’s conduct

precipitating a prosecution under § 841 also violates § 842 is not relevant. Moore, 423 U.S. at

134-38 (finding nothing in the statutory scheme or legislative history justifying a conclusion

that a registrant who may be prosecuted for the relatively minor offense of violating § 829 [i.e.,

a § 842 offense] is exempted from prosecution under § 841 for the greater offense of acting as

a drug “pusher”). Further, writing prescriptions without a legitimate medical purpose would

also violate § 842 because the relevant language in 21 C.F.R. § 1306.04 applies to both

provisions. See id. at 137 n.13.

30

No. 07-30286 & No. 07-30320

Armstrong asserts that the district court abused its discretion by

permitting the Government, through its cross-examinations and closing

arguments, to argue to the jury that Armstrong and the Corporate Defendants

under-reported their taxable income. Armstrong claims that the Government

attempted to show that tax evasion was a motive for the alleged concealment of

income, despite the Government’s admission before trial that it had no evidence

of tax evasion. Armstrong contends that the jury’s verdict was tainted as a

consequence. The Government responds that the questioning at issue, regarding

the source of Armstrong’s unaccounted-for seized cash, was relevant to the

conspiracy to commit money laundering and to rebutting tax arguments initiated

by defense counsel. The Government further argues that there was no harm

because of its statement to the jury in closing argument that this was not a tax

case and the court’s instruction to the jury that the statements of attorneys were

not evidence.

The standard of review for alleged prejudicial admission of evidence is

abuse of discretion. United States v. Acosta, 763 F.2d 671, 693 (5th Cir. 1985).

While a district court has broad discretion regarding its decisions on both the

relevancy and admissibility of evidence, “evidence in criminal trials must be

strictly relevant to the particular offense charged.” United States v. Hays, 872

F.2d 582, 587 (5th Cir. 1989) (quoting Williams v. New York, 337 U.S. 241, 247

(1949)) (internal quotations omitted).

Armstrong initiated the issue of her tax reporting in an effort to establish

her credibility. In opening statements, Armstrong’s counsel informed the jury

of the substantial taxes that Armstrong paid from her clinics’ earnings, in an

admitted attempt to undercut any prosecution argument that the clinics had

31

No. 07-30286 & No. 07-30320

concealed their income. The Government objected that “this is not a tax case.”

However, when the Government attempted to question Armstrong’s Certified

Public Accountant about whether certain sums of clinic income were accounted

for, Armstrong in turn objected. In so doing, counsel admitted putting

Armstrong’s tax payments at issue but argued that it was inappropriate for the

Government to continue questioning on the subject as it was not a tax evasion

case. The district court overruled Armstrong’s objection to the questioning.

The issue of whether Armstrong paid all income tax due was introduced

to the case by Armstrong. The Government was eliciting evidence both for its

case in chief, by demonstrating the possible concealment of income, as well as

rebutting the defense argument that all taxes had been paid. The record shows

that the district court rejected Armstrong’s objections to these questions after a

proper balancing of the appropriate factors under Rules 401 to 403 of the Federal

Rules of Evidence. Such questioning both went to the Government’s case in

chief, because it addressed concealment and money laundering, and to challenge

the defense explanation that defendants had reported all of the income. The

court noted that the Government’s analysis of Armstrong’s earnings revealed a

substantial cash stream, and evidence admitted at trial revealed a lack of

accountability of funds earned during the period of time in which the conspiracy

operated and showed that cash was used in multiple financial transactions with

no identifiable source. The district court did not abuse its discretion by

overruling the objection from Armstrong’s counsel and allowing the prosecution

to cross-examine Armstrong’s accountants regarding whether Armstrong’s

income was greater than the defense alleged.

Armstrong also challenges certain prosecution statements made during

closing arguments. Because Armstrong did not object to the comments at trial,

32

No. 07-30286 & No. 07-30320

we review them for plain error. United States v. Burns, 526 F.3d 852, 858 (5th

Cir. 2008). Plain error exists if (1) there was error; (2) the error was clear and

obvious; and (3) the error affected a substantial right. Id.

Specifically, during its closing argument, the prosecution – after clearly

stating that the case was about illegal dispensing, not about tax – then

proceeded to speculate, from the daily receipts in evidence from one month in

2005 of over $20,000 income per day, as to an annual income that was $1.6

million greater than that reported by Armstrong and her husband for the

relevant year, questioning the source of the extra income. Viewing the

comments of the prosecutor in the context of the entire trial, including the tax

arguments presented by defense counsel to which it responded, and the court’s

cautionary instruction to the jury that attorneys’ statements were not evidence,

the prosecutor’s comments in closing argument do not constitute plain error. See

Burns, 526 F.3d at 858; United States v. Thomas, 12 F.3d 1350, 1367-68 (5th Cir.

1994).

II. Sufficiency of the Evidence

Armstrong contends that there was insufficient evidence supporting her

conviction for count 28, conspiracy to commit money laundering, because the

evidence did not prove that funds were concealed for an ill–designed purpose.

On count 28 of the superseding indictment Armstrong and the Corporate

Defendants were charged and convicted with conspiracy to launder money in

33

No. 07-30286 & No. 07-30320

violation of §§ 1956(a)(1)(A)(I)32 (“promotional money laundering”), (a)(1)(B)(I)33

(“concealment money laundering”). Crucially, Armstrong does not challenge the

sufficiency of evidence presented at trial supporting a conviction for conspiring

to commit money laundering in violation of § 1956(a)(1)(A)(I) (“promotional

money laundering”).

To sustain a conviction for conspiracy to launder money under § 1956(h),

the Government must prove beyond a reasonable doubt that: (1) there was an

agreement between two or more persons to launder money; (2) the defendant

voluntarily agreed to join the conspiracy; and (3) one of the persons committed

an overt act in furtherance of the conspiracy. United States v. Wilson, 249 F.3d

366, 379 (5th Cir. 2001) (citation omitted). The text of § 1956(h) and the district

court’s jury charge plainly instruct that the Government only needs to prove a

voluntary agreement and an overt act in furtherance of either promotional

money laundering or concealment money laundering in order for the jury to

convict Armstrong on count 28.34 The Government was not required to prove a

conspiracy to commit both types of money laundering. Thus, even if we agreed

with Armstrong that there was insufficient evidence of a conspiracy to commit

32

Section 1956(a)(1)(A)(I), (“promotional money laundering”), makes it a crime to: (1)

conduct or attempt to conduct a financial transaction, (2) which the defendants knew involved

the proceeds of unlawful activity, and (3) with the intent to promote or further unlawful

activity. United States v. Miles, 360 F.3d 472, 477 (5th Cir. 2004).

33

Section 1956(a)(1)(B)(I), (“concealment money laundering”), makes it a crime for

anyone to knowingly use the proceeds of certain illegal activity to conceal or disguise the

nature, location, source, ownership, or control of such proceeds. United States v. Burns, 162

F.3d 840, 847 (5th Cir. 1988).

34

Section 1956(h) states that “[a]ny person who conspires to commit any offense defined

in this section . . . shall be subject to the same penalties as those prescribed for the offense the

commission of which was the object of the conspiracy.” 18 U.S.C. § 1956(h) (emphasis added).

34

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concealment money laundering, we could not reverse the conspiracy conviction

in count 28, because the unchallenged evidence supports the verdict of a

conspiracy to commit promotional money laundering. Armstrong’s conviction on

count 28 is affirmed.

DR. CULLINS’S SENTENCING

Dr. Cullins challenges the reasonableness of her sixty-month sentence,

arguing that the trial court erred in calculating an initial Sentencing Guidelines

range of forty-one to fifty-one months because it improperly included legitimate

prescriptions and drugs dispensed by the clinics before she began working there.

Dr. Cullins further argues that her sentence is unreasonable because it is

disproportionate to her culpability, particularly in light of Armstrong’s seventy-

month sentence.35

The Government responds that Dr. Cullins did not object to the factual

findings in the Presentence Investigation Report (“PSR”), which was adopted by

the district court. The Government asserts that the base offense level calculated

by the district court was correct and that a mere difference of sentences among

co-defendants does not constitute an abuse of discretion.

1. Standard of Review

The review of sentencing decisions is limited to determining whether they

are “reasonable.” Gall v. United States, 128 S. Ct. 586, 594 (2007). That process

of review is a bifurcated one. Id. We first examine whether the district court

35

Dr. Cullins also appeals her sentence insofar as it is based on conduct of which she

was acquitted, which she argues violated her Sixth Amendment right to a jury trial. This

argument is foreclosed by United States v. Valdez, 453 F.3d 252, 264 (5th Cir. 2006) (holding

that acquitted conduct can be considered at sentencing if proven by a preponderance of the

evidence), cert. denied, 127 S. Ct. 456 (2006).

35

No. 07-30286 & No. 07-30320

committed any significant procedural error, such as: (1) failing to calculate (or

improperly calculating) the applicable Guidelines range; (2) treating the

Guidelines as mandatory; (3) failing to consider the 18 U.S.C. § 3553(a) factors;36

(4) determining a sentence based on clearly erroneous facts; or (5) failing to

adequately explain the chosen sentence, including an explanation for any

deviation from the Guidelines range. Id. at 597. Analyzing for procedural error,

the reviewing court examines the district court’s interpretation or application of

the Sentencing Guidelines de novo, and its factual findings for clear error.

United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). “There

is no clear error if the district court’s finding is plausible in light of the record as

a whole.” Id. (quoting United States v. Juarez-Duarte, 513 F.3d 204, 208 (5th

Cir. 2008)).

Next, assuming the district court’s decision is procedurally sound, we

consider the substantive reasonableness of the sentence. Gall, 128 S. Ct. at 597.

While a sentence within a properly-calculated Guidelines range enjoys a

presumption of reasonableness in this Circuit, Cisneros-Gutierrez, 517 F.3d at

766, a sentence that includes an upward or downward departure as allowed by

the Guidelines is reviewed for an abuse of discretion. See Gall, 128 S. Ct. at 597

(holding that absent a presumption of reasonableness, abuse of discretion is the

standard for reviewing sentences, whether Guideline or non-Guideline, for

substantive reasonableness). That the Court of Appeals “might reasonably have

concluded that a different sentence was appropriate” is an insufficient

36

Section 3553(a) lists seven factors that a sentencing court shall consider, preceded

by a general directive to “impose a sentence sufficient, but not greater than necessary, to

comply with the [general purposes of sentencing].” See § 3553(a) (2000 ed., Supp. V); Gall, 128

S.Ct. at 596 n.6.

36

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justification for reversal of the district court, because the sentencing judge is in

a superior position to evaluate the § 3553(a) factors, given that “[t]he judge sees

and hears the evidence, makes credibility determinations, has full knowledge of

the facts and gains insights not conveyed by the record.” Gall, 128 S. Ct. at 597

(internal quotations omitted).

2. Analysis

A district court should begin all sentencing proceedings by correctly

calculating the applicable Guidelines range. Gall, 128 S. Ct. at 596. At the

sentencing hearing, the district court adopted the factual findings of the Pre-

Sentencing Report (the “PSR”). Dr. Cullins stated that she had no objections to

those findings. The PSR stated that the usual prescription given to the clinics’

patients generally included three medications in the following dosage units for

a fourteen day period: 90 Lorcet;37 30 Xanax;38 and 90 Soma.39 The PSR also

stated that: (1) on most occasions, each doctor at the clinics often saw more than

eighty patients per day; (2) for certain doctors, that number of patients increased

to hundreds per day; and (3) at times the doctors, on average, saw one patient

every 3.3 minutes. The PSR specifically noted that Dr. Cullins was known as

the “in and out” lady because she wrote prescriptions so fast.40

37

Lorcet’s generic equivalent is Hydrocodone, a Schedule III controlled substance.

38

Xanax’s generic equivalent is Alprazolam, a Schedule IV controlled substance.

39

Soma’s generic equivalent is Carisprodol, an uncontrolled substance.

40

For example, it was noted in the PSR that on one day, Dr. Cullins saw 262 patients

within a six-hour timespan; that on many days, Cullins saw a patient every one to two

minutes; and that she prescribed more medications than the other two physicians indicted, Dr.

Guenther and Dr. DeLoach.

37

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The PSR calculated Dr. Cullins’s base offense level as 20, pursuant to

United States Sentencing Guidelines § 2D1.1(a) and (c)(10), based on her

responsibility in dispensing more than 40,000 dosage units of a Schedule III

substance. To find that Dr. Cullins, or her co-conspirators, illegally prescribed

40,000 dosage units requires finding 445 or more patient visits accompanied by

illegal Hydrocodone dispensations of typical dosage. At the rate that Dr. Cullins

and the other physicians wrote these prescriptions, it would take only six days

for one doctor at the clinic, seeing approximately 80 patients per day, to dispense

that amount of Hydrocodone. The evidence shows that Dr. Cullins wrote 302

such prescriptions in four hours of work at one clinic on April 9, 2005. In light

of the fact that Dr. Cullins worked at the clinic for over two years, was found

guilty of a conspiracy to dispense controlled substances, the district court’s

finding that at least 40,000 illegally dispensed doses of a Schedule III drug were

attributable to Dr. Cullins was plausible and did not constitute clear error.41

See United States v. Carbajal, 290 F.3d 277, 287 (5th Cir. 2002) (applying the

general rule that information in a PSR is presumed reliable and may be adopted

by the district court without further inquiry if the defendant fails to demonstrate

by rebuttal evidence that the information is untrue or unreliable).

We conclude that the district court committed no procedural error in

determining Dr. Cullins’s sentence. The Guidelines sentence range was correctly

calculated,42 and a review of the sentencing hearing transcript clearly shows that

41

Dr. Cullins's contention that she was held responsible for the same quantity of

illegally dispensed drugs as Armstrong because they shared the same base offense level is

erroneous. Armstrong also had a base offense level of 20, but the relevant provision

§ 2D1.1(c)(1) refers to “40,000 or more units of Schedule III substances.”

42

Dr. Cullins does not object to the two-level increase for her role in the offense, which

created a total offense level of 22. Combined with a criminal history category of I, the

38

No. 07-30286 & No. 07-30320

the district court did not treat the Guidelines as mandatory, and that it

considered the § 3553(a) factors, gave an individualized assessment, and

adequately explained the chosen sentence, including an explanation for imposing

an upward departure from the Guidelines range.

We now turn to Dr. Cullins’s argument that her sentence was nonetheless

substantively unreasonable, particularly in comparison to the sentence meted

out to Armstrong. Cullins argues, based on the proportionality principle of 18

U.S.C. § 3553(a)(6), that she should have been given a shorter sentence because

Armstrong was more culpable and received a sentence only ten months longer.

Reviewing the reasonableness of the sentence imposed by the district court, an

upward departure from the initial calculation of a Guidelines range, we do not

find it to be abuse of discretion. See Smith, 440 F.3d at 707.

At the sentencing hearing, the court noted the substantial number of

letters received on Dr. Cullins’s behalf and heard defense counsel describe Dr.

Cullins’s years of service as a doctor and lay minister. Acknowledging these

mitigation arguments, the district court discussed Dr. Cullins’s position of trust

as a doctor and the special role that doctors have in society, tending to people

when they are vulnerable, and starting with the command to do no harm.

Finding that Dr. Cullins’s conduct in her two years at the clinic violated this

command and trust, the district court concluded that her patients and society had

a right to expect better. The district court agreed with the Government that the

trial testimony and facts of the case revealed substantial harm to individual

victims and the public’s faith in the healthcare delivery system. After this careful

considered Cullins’s conduct and the relevant § 3553(a) factors, the district court

recommended Guidelines range was forty-one to fifty-one months in prison.

39

No. 07-30286 & No. 07-30320

imposed a sentence of sixty months, an upward departure from the Guidelines

range but within the statutory range.

Nonetheless, Cullins argues that her sixty-month sentence is excessive in

relation to Armstrong’s seventy-month sentence, and therefore that the district

court failed to consider the need to avoid unwarranted sentencing disparities.

See § 3553(a)(6). Dr. Cullins is correct that identifying “a case in which a

similarly-situated defendant received a lesser sentence” is one way that a

defendant can establish the existence an unwarranted disparity. See Smith, 440

F.3d at 709. However, we are not persuaded that the comparison of the co-

defendants’ sentences in this case shows an abuse of discretion. Armstrong, the

acknowledged mastermind, did receive a longer sentence that Dr. Cullins. Dr.

Cullins contends that her conduct was less egregious than Armstrong’s and

warrants a greater sentencing differential than the ten-month difference in

length between Armstrong’s sentence and her own. The district court correctly

noted that Armstrong is a non-registrant and could not have carried out the

enterprise without doctors like Dr. Cullins who worked at the clinics and wrote

all of the prescriptions.

Dr. Cullins has not demonstrated that, considering this significant

difference in situation between the defendants, the sentence imposed is

disproportionate to her culpability such that the district court abused its

discretion. See Cisneros-Gutierrez, 517 F.3d at 767 (rejecting argument that

defendant’s sentence was unreasonable because his brother, more deeply involved

in the conspiracy, received a sentence ten years shorter, noting: “Defendant also

fails to consider that his microcosmic approach to sentencing disparities, while

40

No. 07-30286 & No. 07-30320

relevant, would create its own set of disparities with other similarly situated

defendants.”).

CONCLUSION

For these reasons, Dr. Cullins’s convictions and sentencing are

AFFIRMED, Armstrong’s convictions for counts 11, 14, 17, 20, and 27 are

REVERSED, her remaining convictions are AFFIRMED, and the case is

REMANDED to the district court for further proceedings.

41