United States v. Merrill

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED

________________________ U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JANUARY 17, 2008

No. 06-14076

THOMAS K. KAHN

________________________

CLERK

D. C. Docket No. 05-00023-CR-5-001-MCR

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

THOMAS G. MERRILL,

Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Northern District of Florida

_________________________

(January 17, 2008)

Before EDMONDSON, Chief Judge, HULL, Circuit Judge, and FORRESTER,*

District Judge.

*

Honorable J. Owen Forrester, Senior United States District Judge for the Northern

District of Georgia, sitting by designation.

FORRESTER, District Judge:

I. BACKGROUND

From 1994 until 2004, Dr. Thomas Merrill (“Merrill”), an osteopath

licensed to practice medicine in Florida and registered under the Controlled

Substances Act, 21 U.S.C. §§ 801, et seq., operated a clinic in Apalachicola,

Florida. On August 2, 2005, the Government filed a 100-count indictment against

Merrill. The indictment charged Merrill with various counts of wire fraud (Counts

1-18), health care fraud1 (Counts 19-24), and illegally prescribing narcotics

outside the course of professional practice under the Controlled Substance Act

(Counts 25-100). Nine of the counts in the indictment alleged that death resulted

from either the health care fraud or the use of the narcotics prescribed outside the

course of professional practice (Counts 20-24, 39, 65, 69, and 78). On January 30,

2006, Merrill was convicted of 98 of the 100 counts. He was sentenced on

1

18 U.S.C. § 1347 states:

Whoever knowingly and willfully executes, or attempts to execute, a scheme or

artifice --

(1) to defraud any health care benefit program; or

(2) to obtain, by means of false or fraudulent pretenses, representations, or

promises, any of the money or property owned by, or under the custody or

control of, any health care benefit program,

in connection with the delivery of or payment for health care benefits, items, or

services, shall be fined under this title or imprisoned not more than 10 years, or

both. If the violation results in serious bodily injury (as defined in section 1365 of

this title), such person shall be fined under this title or imprisoned not more than

20 years, or both; and if the violation results in death, such person shall be fined

under this title, or imprisoned for any term of years or for life, or both.

2

July 10, 2006, to serve various concurrent sentences of five, ten, and twenty years

on ninety-two of those counts. He was also sentenced to life imprisonment on six

of the counts to run concurrently with the other sentences. He appeals his

convictions. We affirm Merrill’s convictions.

At trial, the Government presented the expert testimony of Dr. Theodore

Parran, a board-certified internal medicine physician with sub-specialty training in

addiction medicine. Dr. Parran, who was qualified as an expert in the areas of

pain management, addiction medicine, and prescribing controlled substances,

testified based on his review of eighty patient files.

This testimony and the documentary evidence demonstrated that Merrill

wrote multiple prescriptions for similar controlled substances for the same patient

during the same visit; that he wrote prescriptions for patients on whom he

performed no or very minimal physical examination; that he failed to obtain old or

prior medical records on his patients; that he failed to log all prescriptions written

for his patients in their charts; that he failed to run tests, including toxicology

screens, recommend physical therapy, or order consultations with a specialist; that

he wrote prescriptions for patients whose behavior and physical appearance should

have raised suspicion that they were addicted to controlled substances; that he

wrote prescriptions for his employees; that he wrote prescriptions for at least one

3

patient who he had heard was selling the prescribed drugs; that he wrote

prescriptions for at least two patients who had altered prescriptions; that he wrote

prescriptions for at least one patient who had overdosed on controlled substances

during his care; that the trend in his prescribing was to increase a patient’s dosage

and number of pills with each prescription even on occasions where the files

indicated that the patient had “no new complaints”; that he frequently refilled

prescriptions early without any subsequent documentation in the charts; and that

he ignored warnings of possible addiction from insurance companies, pharmacies,

and even previous doctors.

Dr. Parran testified that these practices are irregular, dangerous, and are not

the legitimate practice of medicine. Dr. Parran repeatedly stated that prescriptions

written to particular patients appear to be outside the usual course of medical

practice and for other than legitimate medical purpose (e.g., R 15-222 at 69, 78,

83, 88, 103, 110, 113, 123, 125, 132, 136, 139, 144, 151, 146, 156, 160, 163, 165,

168-69, and 172). At times during his testimony, Dr. Parran characterized

Merrill’s prescription-writing behavior as “unbelievable,” as “an invitation to

disaster,” as “ill-advised,” as “inappropriate,” “inconceivable,” “bizarre,”

“astonishing,” and “incredible” (R 15-222 at 84, 103, 109, 118, 126, 156, 163, and

167). Merrill did not object to the admission of any of this testimony.

4

Merrill was charged with healthcare fraud and with either fraudulent acts or

unlawfully dispensing controlled substances resulting in the death of Bridgette

Persinger, Leslie Dyer, Deanna Hayes, Kenneth Noles, and Katherian Seay. In

each case the medical examiner who performed the autopsy on each victim

determined the cause of death to be drug overdose of a controlled substance which

Merrill had recently prescribed (R 12-219 at 140, 208, 260, 279 and R 13-220 at

113).

Merrill contends that the district court erred in six ways. Merrill contends

that there was insufficient evidence at trial to support conviction on the counts in

the indictment charging him with providing controlled substances to patients

which resulted in their deaths. Merrill also asserts that the trial court admitted an

avalanche of prejudicial and irrelevant evidence in the form of prescriptions of

Merrill’s patients who were not the subject of any count in the indictment. He

claims he was prejudiced by the trial court’s decision to move the trial from

Panama City to Pensacola, which he contends was an inconvenient forum. Next,

Merrill avers that the trial court wrongly instructed the jury as to intent and

impermissibly shifted the burden of proof to the Defendant. Merrill argues that

Assistant United States Attorney Kunz committed prosecutorial misconduct in

misrepresenting evidence to the court and the jury. Merrill claims that he was

5

denied effective assistance of counsel. Finally, Merrill asserts that the trial court

wrongly dismissed an African-American juror immediately after the jury had been

charged. For all of these reasons, Merrill requests this court reverse his conviction

and remand the matter for a new trial.

II. DISCUSSION

A. Sufficiency of the Evidence

In nine counts, Merrill was charged with committing acts that resulted in the

deaths of five patients: Bridgette Persinger, Leslie Dyer, Deanna Hayes, Kenneth

Noles, and Katherian Seay. Merrill claims the Government presented insufficient

evidence at trial to prove his actions resulted in these deaths. Specifically, Merrill

claims that each of the patients who died was using illicit drugs, alcohol, and other

prescription drugs. Merrill further contends that there was no evidence at trial by

which it could be determined that any one of the deceased patients did actually

ingest the drugs prescribed by Merrill.

The determination of whether the record contains sufficient evidence to

support a jury’s verdict is a question of law which we review de novo. United

States v. Byrd, 403 F.3d 1278, 1288 (11th Cir. 2005) (citing United States v.

Harris, 20 F.3d 445, 452 (11th Cir. 1994)). In this task, “we view the evidence in

the light most favorable to the government,” drawing “all reasonable inferences

6

and credibility choices” in the Government’s favor. Id. As Merrill states in his

briefing, “[i]t is not necessary that the evidence exclude every reasonable

hypothesis of innocence or be wholly inconsistent with every conclusion except

that of guilt, provided that a reasonable trier of fact could find that the evidence

established guilt beyond a reasonable doubt.” Harris, 20 F.3d at 452 (citation

omitted). “A conviction must be upheld unless the jury could not have found the

defendant guilty under any reasonable construction of the evidence.” Byrd, 403

F.3d at 1288 (quoting United States v. Chastain, 198 F.3d 1338, 1351 (11th Cir.

1999)).

With regard to Merrill’s first contention that each of these patients who died

had other substances, such as alcohol, illicit drugs, or prescription medicine, not

prescribed by Merrill in their systems at the time they died, the Government put on

the witness stand the medical examiner who performed the autopsy on each of

these patients. In each case the medical examiner testified that drugs of the same

type as prescribed by Merrill were the cause of death.

Insofar as Merrill is contending that the Government failed to show that his

patients’ deaths were caused by the drugs he prescribed as opposed to drugs

prescribed by other doctors or obtained on the street, we find that there was

sufficient evidence for a reasonable trier of fact to find guilt beyond a reasonable

7

doubt. Within two-and-a-half weeks of their deaths, Merrill prescribed for each of

these patients the exact type of drug the medical examiner found to have caused

their deaths. In three cases, there were even pill bottles or prescription medicine

specifically prescribed by Merrill in the immediate vicinity of the deceased. While

the Government did not exclude every reasonable hypothesis of innocence, by

showing that Merrill was the only source of the patients’ medications, a jury under

a reasonable construction of the evidence, could have found that Merrill’s

prescriptions were the actions which led to these patients’ deaths.

B. Evidence of Other Prescriptions

Merrill contends that the district court abused its discretion when it allowed

the Government to introduce evidence of more than 33,000 prescriptions for

controlled substances that Merrill wrote between January 2001 and May 2004 and

a chart summarizing these prescriptions because such evidence was irrelevant and

prejudicial.

During the course of its investigation, the Government subpoenaed

pharmacy records of all the prescriptions written between January 2001 and May

2004 which contained Merrill’s DEA registration number. A pharmacist must use

his unique DEA registration number to prescribe controlled substances. One

hundred thirteen pharmacies responded to the Government’s request and produced

8

more than 33,000 prescriptions identified with Merrill’s DEA registration number.

The Government introduced these prescriptions, 99.4% of which were actually for

controlled substances.2 Of the controlled substance prescriptions, 81% were for

four particular drugs: hydrocodone3 (Schedule II) (12,405 prescriptions),

diazepam4 (5,907) (Schedule IV), oxycodone5 (4,464) (Schedule II), and

alprazolam (4,326) (Schedule IV). The Government, through an intelligence

analyst with the National Drug Intelligence Center, also compiled and introduced a

detailed summary of this material. The summary contained five tabs which (1)

detailed each patient’s name, prescription number, write date, fill date, quantity,

2

Controlled substances are a subset of drugs that carry a risk of abuse or misuse. As

Professor Doering explained during Merrill’s trial, there are five levels, or schedules, of

controlled substances. Schedule I drugs, such as heroin, are drugs with no medical benefit, and

they have the highest level of abuse or misuse. Schedule II drugs have a recognized medical

benefit, but they “require the highest degree of scrutiny and supervision in terms of making sure

they don’t end up in the wrong hands.” Schedule III-V drugs have fewer controls than Schedule I

or II drugs, and the major difference among the three schedules is the degree of punishment for

not handling them properly. (R 13-220, at 13-17).

3

Hydrocodone is the active ingredient in pain relievers such as Vicodin and Lortab. (R

13-220, at 16).

4

Diazepam, or Valium, and alprazolam, or Xanax, are benzodiazepines which are often

used to reduce anxiety or help people sleep. (R 13-220, at 21-22).

5

Oxycodone is a powerful pain-relieving medicine derived from opiates like morphine.

Oxycodone comes in immediate release forms such as Percodan, Percocet, and Tylox, which

release a high dosage of oxycodone immediately and provide short-term pain relief, and

continuous release forms such as OxyContin, which release a lower dosage of oxycodone

continuously over a twelve-hour period in order to provide long term pain relief. (R 13-220, at

19-20).

9

drug name, strength, total milligrams, and pharmacy; (2) calculated the total

number of pills and prescriptions for each patient for each drug; (3) displayed the

total number of pills prescribed of each drug; (4) calculated what percentage each

drug represented in the total number of controlled substances prescribed; and (5)

displayed the total milligrams prescribed for each of the five most prescribed

drugs. An excerpt of the tab one data for two patients is attached to this opinion as

Exhibit 1 as an example of the type of data this summary illustrates.6 This excerpt

reveals that Merrill prescribed the same patient multiple controlled substances in a

given visit;7 that Merrill prescribed multiple drugs from the same drug category to

a given patient during a given visit;8 that Merrill re-authorized prescriptions for

the same controlled substance within less than a month of each other;9 and that

6

The full names of the two patients have been removed out of respect for their privacy

and that of their families.

7

For example, Merrill prescribed BP seven controlled substances on March 22, 2002.

8

For example, Merrill prescribed two benzodiazephines, Xanax, or alprazolam, and

Dalmane, or flurazepam, to BP on April 23, 2002. (R 13-220, at 33).

9

Professor Doering testified as to how prescriptions are normally filled. “Generally, an

insurance company will only pay for a month’s worth of medication. So typically a three-times-

a-day medication would be issued for 120 of [the] dosage units.” (R 13-220, at 32). Here, for

example, Merrill prescribed BB thirty diazepam on January 12, 2004, and sixty diazepam on

January 13, 2004. BB also filled a Merrill prescription for 75 hydrocodone/apap on March 10,

2003, and filled one for 75 more a mere three days later.

10

Merrill frequently prescribed high doses.10 The district court admitted both the

individual prescriptions and the summary over defense counsel’s objection that

not all of the documents were related to the counts of the indictment.

We review the district court’s evidentiary rulings on the individual

prescriptions and the summary for clear abuse of discretion. United States v.

Baker, 432 F.3d 1189, 1202 (11th Cir. 2005). “An abuse of discretion arises when

the district court's decision rests upon a clearly erroneous finding of fact, an errant

conclusion of law, or an improper application of law to fact.” Id. The district court

has broad discretion to determine the relevance and admissibility of any given

piece of evidence. United States v. Smith, 459 F.3d 1276, 1295 (11th Cir. 2006).

Evidence is admissible if relevant and only relevant if it has “any tendency to

make the existence of any fact that is of consequence to the determination of the

action more probable or less probable than it would be without the evidence.”

Fed. R. Evid. 401, 402. The district court also has the discretion to exclude

relevant evidence if the court finds that the probative value of the evidence “is

substantially outweighed by the danger of unfair prejudice, confusion of the

issues, or misleading the jury, or by considerations of undue delay, waste of time,

10

For example, Merrill prescribed BP two-milligram strength Xanax, which is the highest

strength of that particular medication. (R 13-220, at 3). Merrill also prescribed Dalmane, or

flurazepam, at the higher strength of 30 milligrams, and instructed BP to take not one but two at

bedtime. (Id. at 33).

11

or needless presentation of cumulative evidence.” Fed. R. Evid. 403. “But Rule

403 is an extraordinary remedy which should be used only sparingly since it

permits the trial court to exclude concededly probative evidence. In criminal trials

relevant evidence is inherently prejudicial. [Thus, t]he rule permits exclusion only

when unfair prejudice substantially outweighs probative value.” United States v.

Betancourt, 734 F.2d 750, 757 (11th Cir. 1984) (controlled substance case

charging physicians). Therefore, when reviewing the district court’s decision to

exclude a given piece of evidence, “we look at the evidence in a light most

favorable to its admission, maximizing its probative value and minimizing its

undue prejudicial impact.” United States v. Brown, 441 F.3d 1330, 1362 (11th

Cir. 2006). Under this extremely deferential standard, we will look to the

evidence as a whole and determine whether the specific evidence questioned by

Merrill was admissible under Rules 401-403 in light of all the evidence that was

ultimately before the court.

Looking at the challenged evidence in this light, we have determined that it

was relevant and that its probative value was not outweighed by its potential for

prejudice. The Government indicted Merrill for devising a scheme to defraud

Medicaid and other insurance providers. (R 1-3, at 6). As part of the scheme,

Merrill was alleged to have “prescrib[ed] excessive and inappropriate quantities

12

and combinations of controlled substances to patients outside the usual course of

professional practice.” (Id. at 7). The Government also indicted Merrill on

numerous counts of dispensing controlled substances in violation of the

Controlled Substances Act, 21 U.S.C. § 841.

In order to lawfully possess or dispense a controlled substance a

doctor must fulfill two requirements. He must be lawfully licensed to

practice medicine and he must be registered by the Drug Enforcement

Administration. Doctors that are registered are then authorized to

possess, distribute or dispense controlled substances. However, they

may do so only in the usual course of professional practice and for a

legitimate medical purpose.

Betancourt, 743 F.2d at 757. At trial, Merrill claimed that he had not violated the

Controlled Substances Act because all his controlled substance prescriptions were

made in good faith and for legitimate medical purposes.

The individual prescriptions and summary were relevant to prove that

Merrill prescribed “excessive and inappropriate quantities and combinations of

controlled substances” and that in doing so he acted “outside the usual course of

professional practice.” First, the Government could only prove “excessive and

inappropriate quantities and combinations” by presenting evidence on the

quantities and combinations themselves and then comparing those quantities and

combinations to a relevant norm to show that they were excessive and

inappropriate. The summary was thus relevant to establish the quantities and

13

combinations that Merrill was prescribing, and if the summary itself was relevant,

the individual prescriptions underlying it were likewise relevant. The individual

prescriptions and the summary are identical data sets arrayed in two different

fashions. The summary is merely a tabular form of the individual prescriptions.

The Government relied on the testimony of Professor Doering and Dr. Parran to

provide the relevant norm. Their testimony revealed that the sheer volume of

abusable drugs contained in the summary raised an inference of excessiveness and

impropriety. Having reviewed the summary, Professor Doering testified:

[A]s I read through those profiles, I thought, oh, goodness, this is not

right, there is something wrong here. And what I saw, as I reviewed

these profiles, was a pattern of overprescribing. And although I’m

not testifying necessarily about the appropriateness of each one in a

given patient, I thought, wow, there is something not right about this

whole packet.

(R 13-220, at 51). Dr. Parran testified:

[A] prescription [pattern] like this with 81 percent of the prescriptions

over a four-year period of time being controlled drugs of one of these

three – four groups is something that I would be exceedingly

concerned about, even if a person was an oncologist working only in

a hospice, I’d be exceedingly concerned about. To decide whether an

individual prescription was for legitimate medical purpose or within

the course of usual medical practice requires looking at the chart of

that individual patient.

(R 15-222, at 173).

14

Second, the frequency and doses of the prescriptions in the summary raised

an inference of excessiveness and impropriety. The summary revealed that

patients were coming in for visits less than two weeks apart to receive maximum

dose prescriptions of the same drug. The expert pharmacist testified:

When I first looked at these . . . I was horrified. I had to shake my

head and clear my eyes to make sure I was reading it correctly, that in

fact, they were all issued to the same patient on the same day in

quantities that for most of the meds are the maximum doses or super

maximum doses. And I thought no, you’ve got to be kidding me, not

for one patient, not for the same patient.

(R 13-220, at 36-38). Third, the number of drugs being prescribed to each patient

and the combination of drugs being prescribed to each patient raised an inference

of inappropriate and excessive conduct. The summary revealed that some of the

patients were prescribed up to seven or eight drugs on the same day. The

pharmacist testified, “Anytime you get – it’s a reality that anytime you get more

than about three or four drugs on the same patient, that you’re in serious trouble –

serious jeopardy of having side effects and unexpected outcomes.” (R 13-220, at

46). The summary also revealed that Merrill prescribed multiple drugs from the

same drug category to the same patient at the same time, for example, prescribing

two benzodiazepines. These prescription combinations are almost per se outside

the scope of usual medical practice. “There is no legitimate medical purpose for

the combining prescribing of valium [a benzodiazephine] and xanax [a

15

benzodiazephine], each of them two or three times a day in the same patient at the

same time. There just isn’t. They are very similar drugs, and prescribing them

both together makes no clinical sense.” (R 15-222, at 54).

Merrill argues that even if this evidence is relevant, it should be

inadmissible as evidence of uncharged criminal activities or “bad acts” under Fed.

R. Evid. 404(b).11 As discussed above, evidence of the quantity and combination

of prescriptions Merrill wrote during the relevant period is directly related to the

issue of whether Merrill committed health care fraud by “prescrib[ing] excessive

and inappropriate quantities and combinations of controlled substances to patients

outside the usual course of professional practice” and whether Merrill was relieved

of liability under the Controlled Substances Act because he acted in the “usual

course of professional practice.” A jury may consider prescription data sets

outside those specifically charged in the indictment to determine whether a

physician has exceeded “the legitimate bounds of medical practice” and “as

evidence of a plan, design, or scheme.” See United States v. Harrison, 651 F.2d

353, 355 (5th Cir. July 20, 1981). Thus, this evidence was outside the scope of

Rule 404(b). To the extent that it can be argued that each prescription is

11

Fed. R. Evid. 404(b) states, “Evidence of other crimes, wrongs, or acts is not admissible

to prove the character of a person in order to show action in conformity therewith. It may,

however, be admissible for other purposes, such as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident . . . .”

16

uncharged misconduct, each is admissible under Rule 404(b) to show evidence of

a plan. Thus, the district court did not abuse its discretion in admitting either the

summary or the individual prescriptions underlying it.

C. Transfer of the Case from Panama City to Pensacola

Merrill argues that the trial court abused its discretion when it “violated”

Rule 18 of the Federal Rules of Criminal Procedure by moving the trial more than

100 miles away from Panama City to Pensacola over defense objections. Merrill

argues that the transfer was solely for the convenience of the trial court and had

nothing to do with the convenience of Defendant, his witnesses, or the prompt

administration of justice. Merrill stresses that Rule 18 is mandatory and provides

for the convenience of the defendant and its witnesses, but not for the convenience

of the court. Merrill likens this case to United States v. Fernandez, 480 F.2d 726

(2d Cir. 1973) (criticizing moving the trial 26 miles where the only person

convenienced was the judge). He states that the transfer was made despite

repeated defense counsel objections, alternatives in and around Panama City, and

requests that the move be to Tallahassee. He argues that the transfer was

devastating to trial preparation, denied him a fair venire, and presented a severe

financial burden on the defense to the point that he was declared indigent and the

17

court had to grant him Criminal Justice Act funds. Merrill seeks to have this court

vacate the conviction and remand for a new trial in Panama City.

A district court has discretion to fix the place of a trial in any division

within the district, and we review the district court’s decision only for abuse of

discretion. United States v. Pepe, 747 F.2d 632, 648 (11th Cir. 1984); United

States v. Betancourt, 734 F.2d 750, 756 (11th Cir. 1984).

The Sixth Amendment to the United States Constitution guarantees a speedy

and public trial in the state and district wherein the crime was committed.

Betancourt, 734 F.2d at 756 (citing United States v. Anderson, 328 U.S. 699, 704,

705 (1946)). The district means the judicial district of the United States Courts.

Id. (citing United States v. James, 528 F.2d 999, 1021 (5th Cir. 1976)).

Fed. R. Crim. P. 18 states:

Unless a statute or these rules permit otherwise, the government must

prosecute an offense in a district where the offense was committed.

The court must set the place of trial within the district with due regard

for the convenience of the defendant and the witnesses, and the

prompt administration of justice.

Rule 18 allows a court to consider “the prompt administration of justice” in

fixing the place of trial, and “matters of security clearly fall within that

consideration.” United States v. Afflerbach, 754 F.2d 866, 869 (10th Cir. 1985).

In addition,

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the prompt administration of justice includes more than the case at

bar; the phrase includes the state of the court’s docket generally. The

court must balance not only the effect the location of the trial will

have upon the defendants and their witnesses, but it must weigh the

impact the trial location will have on the timely disposition of the

instant case and other cases.

In re Chesson, 897 F.2d 156, 159 (5th Cir. 1990) (per curiam).

In this case, the district court considered Merrill’s interest in the trial

remaining in Panama City but found that interest outweighed by space concerns.

Specifically, the court noted that there was only one courtroom in the Panama City

federal courthouse capable of handling Merrill’s long trial. This courtroom was

not available as it had been assigned to a newly-appointed judge. The court also

found that the juvenile justice courthouse in Panama City, suggested by Merrill as

an alternate location for the trial, was not a viable option due to security concerns

associated with a federal criminal trial.

Having found that the matter could not remain in Panama City, the court

considered the transfer of the case either to Tallahassee, favored by the defense, or

to Pensacola, favored by the Government. In doing so, the trial judge explicitly

considered all of the factors under Federal Rule of Criminal Procedure 18.

Specifically, in addressing the convenience of the Defendant and his

counsel, the court noted that the travel time between Panama City and Pensacola is

only one minute longer than the time between Panama City and Tallahassee. It

19

found that hotel space, office availability, and jury diversity were equal in both

locations.

In addressing the convenience of the witnesses, the trial court indicated that

the majority of defense witnesses were from Panama City, and the Government’s

witnesses were from various places around the country. The court found that air

travel was more convenient to Pensacola than to Tallahassee, that it would impose

no additional burden to have the defense witnesses travel from Panama City to

Pensacola rather than to Tallahassee, and that most witnesses would have to travel

only one time.

Finally, in addressing the prompt administration of justice, the trial court

found that a trial in Panama City would require shutting down the Pensacola

docket for three weeks, affecting other litigants because Judge Rodgers is the only

active judge in the Pensacola Division. She stated that if the trial were held in

Pensacola, she could handle many grand jury and other emergency matters during

the trial but could not do so were she in Tallahassee. The court stated that having

considered all three factors, the last of these required the case to be tried in

Pensacola.

We find that the trial court did not abuse its discretion in moving this case

from Panama City to Pensacola, Florida. As noted by the court, the facilities in

20

Panama City were either not available for use or lacked necessary security

measures. In deciding to transfer the case to Pensacola rather than Tallahassee,

the trial court carefully considered all of the factors enumerated in Federal Rule of

Criminal Procedure 18. The court found that neither the convenience of the

Defendant nor the convenience of the witness greatly favored either location.

Moreover, the court found that the prompt administration of justice in the court’s

docket mandated a transfer to Pensacola.

D. Jury Instructions

Merrill contends that the trial court, in charging the jury, erred in two ways.

First, he contends that the trial court misunderstood what the Government had to

prove under the Controlled Substances Act, section 841. Merrill argues that the

court did not properly instruct the jury by failing to state that the Government must

prove that Merrill knew and intended to act outside the course of professional

medical practice. Second, Merrill claims that in the instructions, the use of

“Defendant asserts” and “Defendant maintains” improperly shifted the burden to

the defense.

We review a trial court’s rejection of a proposed jury instruction for an

abuse of discretion. United States v. Garcia, 405 F.3d 1260, 1273 (11th Cir.

2005) (per curiam). “The district court has broad discretion in formulating jury

21

instructions as long as those instructions are a correct statement of the law.” Id.

“The district court’s refusal to incorporate a requested jury instruction will be

reversed only if the proffered instruction was substantially correct, the requested

instruction was not addressed in charges actually given, and failure to give the

instruction seriously impaired the defendant’s ability to present an effective

defense.” Id. (citation omitted).

However, in United States v. Wright, 392 F.3d 1269 (11th Cir. 2004), we

stated, “[i]n order to preserve an objection to jury instructions for appellate review,

a party must object before the jury retired, stating distinctly the specific grounds

for the objection.” Id. at 1277 (citation omitted). Where a party fails to object

before the jury retires, we review the assignment of error under the “plain error”

standard of review. Id.

As Merrill’s counsel did not object to the court’s instruction, our review is

for plain error (R 19-226 at 159-60, 300). We find that the court did not commit

plain error by not instructing the jury that the Government must prove that Merrill

knew and intended to act outside the course of professional medical practice.

Merrill proposed the following charge:

“Legitimate medical purpose,” “bounds of medicine,” and “usual

course of medical care” mean those medical procedures and

prescriptions provided by a doctor to cure disease or relieve suffering

22

of a patient, so long as those medical procedures or prescriptions

provided are done by the physician in good faith.

“Not for a legitimate medical purpose” or “outside the bounds of

medicine” means when a physician prescribes to, or provides

treatment for a patient not to treat a medical condition of the patient,

but for some other purpose, such as for financial gain.

R 3-94, at 2. The court issued the following instruction:

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 in good faith as part of his medical

treatment for the patient in accordance with the standards of medical

practice generally recognized and accepted in the United States.

The defendant in this case maintains at all times he acted in good

faith and in accordance with the standard of medical practice

generally recognized and accepted in the United States in treating his

patients.

(R 19-226 at 292).

We have already indicated that a good faith instruction focusing on the

physician’s subjective intent, like the one proposed by Merrill, “fails to introduce

any objective standard by which a physician’s prescribing behavior can be

judged.” United States v. Williams, 445 F.3d 1302, 1309 (11th Cir. 2006),

abrogated on other grounds, United States v. Lewis, No. 06-11876, 2007 WL

2033823 (11th Cir. July 17, 2007) (en banc).

The appropriate focus is not on the subjective intent of the doctor, but rather

it rests upon whether the physician prescribes medicine “in accordance with a

23

standard of medical practice generally recognized and accepted in the United

States.” Id. (quoting United States v. Moore, 423 U.S. 122, 139 (1975)). In

Williams, we affirmed a trial court’s instruction like the one given here which

focuses on whether the doctor acted in accordance with a generally-accepted

standard of medical practice. Therefore, we find that the district court neither

committed plain error nor abused its discretion in not giving Merrill’s proposed

jury instruction.

The second issue raised by Merrill with regard to the jury instruction is

whether the district court improperly shifted the burden to Defendant with regard

to the good faith defense. We find such argument without merit. Here, the district

court included in its instructions: “The defendant in this case maintains at all

times he acted in good faith and in accordance with standard of medical practice

generally recognized and accepted in the United States in treating his patients.”

(R 19-226 at 292-93).

Merrill argues that this instruction (by using “Defendant maintains”) shifted

the burden to him to show that he acted in good faith, and that it was the

Government’s burden to show that the drugs were not prescribed in good faith.

However, the court’s next instruction shows that it did not shift the burden:

“Thus, a medical doctor has violated Section 841 when the government has proved

24

beyond a reasonable doubt that the doctor’s actions were not for legitimate

medical purposes in the usual course of professional medical practice or were

beyond the bounds of professional medical practice.” (R 19-226 at 293)

(emphasis added). As such, we find that the court’s language did not

impermissibly shift the burden to the Defendant and did not constitute plain error.

E. Prosecutorial Misconduct

Ordinarily, this court reviews claims of prosecutorial misconduct de novo

because it is a mixed question of law and fact. United States v. Eckhardt, 466 F.3d

938, 947 (11th Cir. 2006). However, with respect to a prosecutor’s statements

made during closing where the defendant did not raise this objection at trial, we

review only for plain error “that is so obvious that failure to correct it would

jeopardize the fairness and integrity of the trial.” United States v. Bailey, 123 F.3d

1381, 1400 (11th Cir. 1997).

“To establish prosecutorial misconduct, (1) the remarks must be improper,

and (2) the remarks must prejudicially affect the substantial rights of the

defendant.” Eckhardt, 466 F.3d at 947 (quotation and citation omitted). “A

defendant’s substantial rights are prejudicially affected when a reasonable

probability arises that, but for the remarks, the outcome of the trial would have

25

been different.” Id. Thus, where there is “sufficient independent evidence of

guilt, any error is harmless.” Id.

Merrill requests a new trial contending that the prosecutor engaged in

misconduct in the change of the place of trial, by giving jury instructions on intent,

and in proffering the admission of res gestae evidence in the form of all Merrill’s

prescriptions. We have addressed above the propriety of the district court’s

rulings with respect to these issues, and therefore, they cannot form the basis of a

prosecutorial misconduct claim. The only other misconduct claim Merrill raises

with any specificity is his allegation that the prosecutor misled the court and the

jury with regard to the medical examiner testimony concerning patient Kenneth

Noles.

At trial, Dr. Siebert, the medical examiner who performed the autopsy on

Kenneth Noles, testified that Fentanyl toxicity could only have occurred by

injection and that he found no evidence of injected drugs on the decedent and saw

no injection site. He qualified this assertion by stating that it was possible that he

could not see an injection site due to a small needle or that the injection was in an

uncommon area. When Merrill moved for acquittal with regard to Mr. Noles

because there was no evidence of track marks on his arms, Assistant United States

Attorney Kunz advised the court that, as he remembered the testimony, Dr. Siebert

26

did say that he had observed track marks on Kenneth Noles. Later, in his closing,

Mr. Kunz repeated this assertion in his summation to the jury. Mr. Kunz also

asserted to the jury that “of course” Merrill saw these track marks during physical

examinations.

We review de novo the alleged prosecutorial misconduct of the prosecutor’s

statements made to the court at the motion-for-acquittal stage. Applying the two-

step test raised in Eckhardt, we find that Mr. Kunz’s statements to the court during

the colloquy on Merrill’s motion for a judgment of acquittal were improper.

Nonetheless, these statements did not prejudice Merrill as the court expressly

stated that the evidence of track marks was irrelevant to its denial of Merrill’s

motion for a judgment of acquittal on counts relating to Mr. Noles. Further, as

stated above, there was sufficient independent evidence of guilt with regard to Mr.

Noles’ death, specifically his wife’s testimony that both she and Mr. Noles were

injecting Fentanyl prescribed by Merrill the night of his death, so that any error on

the part of Mr. Kunz was harmless. (R 12-219 at 310-14).

Because Merrill did not object to Mr. Kunz’s statements to the jury during

closing, we review Merrill’s claim of prosecutorial misconduct here for plain

error. In light of the trial court’s cautionary instructions to the jury and the

abundance of other independent evidence concerning Mr. Noles’ death, we find

27

that the prosecutor’s misstatements during closing with regard to the track marks

were not plain error so obvious that the court’s failure to correct it, sua sponte,

jeopardized the fairness and integrity of the trial.

F. Ineffective Assistance of Counsel

Next, Merrill contends that he was denied effective assistance of counsel at

trial for several reasons. We have held that “[e]xcept in the rare instance when the

record is sufficiently developed, we will not address claims for ineffective

assistance of counsel on direct appeal.” United States v. Verbitskaya, 406 F.3d

1324, 1337 (11th Cir. 2005) (citing United States v. Tyndale, 209 F.3d 1292, 1294

(11th Cir. 2000)). Instead, “[a]n ineffective assistance of counsel claim is properly

raised in a collateral attack on the conviction under 28 U.S.C. § 2255.” United

States v. Butler, 41 F.3d 1435, 1437 n.1 (11th Cir. 1995). We conclude the record

below is not sufficiently developed to evaluate Merrill’s ineffective assistance of

counsel claim at this time. Thus, the claim would be more appropriately addressed

in a section 2255 motion.

G. Dismissal of Juror

Finally, Merrill objects to the court’s inadvertent replacement of a juror with

an alternate. Merrill claims that this replacement violated Federal Rule of

Criminal Procedure 24(c)(3). We evaluate such a claim under the de novo

28

standard of review. United States. v. Brewer, 199 F.3d 1283, 1286 (11th Cir.

2000).

The trial court replaced a juror and sent an alternate out for deliberations

with the other jury members because the court mistakenly believed the former was

an alternate. The jury went to deliberate. Soon thereafter, the court discovered the

error and discussed the error with counsel for both parties. During this colloquy

defense counsel indicated a desire to have the original juror reinstated while the

Government did not; neither party mentioned the race of either juror. Finding no

prejudice to Merrill, the court decided not to reinstate the mistakenly-dismissed

juror. Merrill now claims that the replaced juror was African-American, and the

alternate seated in her place was Caucasian.12 For this reason Merrill contends that

he is entitled to a new trial.

Federal Rule of Criminal Procedure 24(c) provides that “[t]he court may

impanel up to 6 alternate jurors to replace any jurors who are unable to perform or

who are disqualified from performing their duties. . . . Alternate jurors replace

jurors in the same sequence in which the alternates were selected.”

12

Although Merrill’s brief contends that the dismissed juror was African-American and

the alternate juror was white with less education and a “perceived bias and leaning for the

prosecution on the petit jury,” the citation to the record provided by Merrill provides no

information as to the race of either juror nor any evidence at all of any perceived bias.

29

We find that when the district court replaced a juror with an alternate for no

reason, it erred and violated Rule 24(c). The real question before the court is

whether this erroneous replacement constitutes reversible error or merely harmless

error.

We have “explicitly rejected a rule of per se reversal for Rule 24(c)

violations.” Brewer, 199 F.3d at 1286 (citing United States v. Acevedo, 141 F.3d

1421, 1423 (11th Cir. 1998)). “Instead, reversal is required only if there is a

reasonable possibility that the district court’s violation of Rule 24(c) actually

prejudiced the defendant by tainting the jury’s final verdict.” Id. at 1286-87

(citing United States v. Register, 182 F.3d 820, 842 (11th Cir. 1999); United States

v. Bendek, 146 F.3d 1326, 1328 (11th Cir. 1998) (per curiam)).

In Brewer, the district court randomly selected two of fourteen jurors to be

removed as alternates immediately prior to the jurors retiring to deliberate. We

found that this random method of designating which jurors would be alternates

violated the “explicit command” of Rule 24(c). Brewer, 199 F.3d at 1286. The

plaintiff contended that he was prejudiced “because one of the jurors who was

designated as an alternate was black, the district court’s method diluted black

representation on the jury.” Id. at 1287. We found that this “unsupported

assertion, without any reference to the racial makeup of the jury panel that

30

convicted the defendants, falls far short of the required showing of a reasonable

possibility that the district court’s violation of Rule 24(c) actually prejudiced the

defendants by affecting the jury’s final verdict.” Id. (emphasis in original).

Here, Merrill makes a similarly unsupported assertion. He claims that he

was denied a fair cross section of the community by the judge’s inadvertent

replacement of a juror with an alternate. Like the defendants in Brewer, however,

Merrill has made no reference to the racial makeup of the jury panel. For this

reason we find, as we did in Brewer, that Merrill’s unsubstantiated allegation does

not show “a reasonable possibility that the district court’s violation of Rule 24(c)

actually prejudiced the [defendant] by affecting the jury’s final verdict.”

III. CONCLUSION

As stated above, we find that 1) there was sufficient evidence at trial to

support counts in the indictment charging Merrill with providing controlled

substances to patients which resulted in their deaths; 2) the trial court’s admission

of evidence in the form of prescriptions of Merrill’s patients who were not the

subject of any count in the indictment was not an abuse of discretion; 3) the trial

court did not abuse its discretion in moving this case from Panama City to

Pensacola, Florida; 4) the trial court did not wrongly instruct the jury; 5) Assistant

United States Attorney Kunz did not commit prosecutorial misconduct so

31

prejudicial as to warrant a new trial; 6) the record below is not sufficiently

developed to evaluate Merrill’s ineffective assistance of counsel claim; and 7)

Merrill has not shown prejudice resulting from the replacement of a juror with an

alternate.

For all of these reasons, we AFFIRM the district court.

32

EXHIBIT 1 Example of Tab 1 of the Summary for Two Patients

Patient Rx # Write Date Fill Date Qty C/NC Drug Name Strength Total MG Pharmacy

BP 692413 6/21/02 6/21/02 60 NC Doxepin 150 9000 Lanier Pharmacy

BP 692415 6/21/02 6/21/02 100 C Alprazolam 2 200 Lanier Pharmacy

BP 692416 6/21/02 6/21/02 60 NC Flurazepam 30 900 Lanier Pharmacy

BP 692417 6/21/02 6/21/02 60 C Phentermine 30 1800 Lanier Pharmacy

BP 692419 6/21/02 6/21/02 120 C Oxycontin 40 4800 Lanier Pharmacy

BP 692421 6/21/02 6/21/02 100 C Carisoprodol 350 35000 Lanier Pharmacy

BP 692422 6/21/02 6/21/02 100 C Hydrocodone/Apap 10/500 1000 Lanier Pharmacy

BP 689549 5/23/02 5/23/02 8 NC Prozac 90 720 Lanier Pharmacy

BP 689550 5/23/02 5/23/02 100 C Carisoprodol 350 35000 Lanier Pharmacy

BP 689552 5/23/02 5/23/02 100 C Hydrocodone/Apap 10/500 1000 Lanier Pharmacy

BP 689554 5/23/02 5/23/02 100 C Alprazolam 2 200 Lanier Pharmacy

BP 689556 5/23/02 60 C Flurazepam 30 1800 Lanier Pharmacy

BP 689557 5/23/02 5/23/02 30 C Melfiat 105 3150 Lanier Pharmacy

BP 689558 5/23/02 5/23/02 120 C Oxycontin 40 4800 Lanier Pharmacy

BP 5/23/02 5/23/02 30 NC Prevacid 30 900 Lanier Pharmacy

BP 3142566 4/23/02 100 C Hydrocodone/Apap 10/500 1000 Eckerd Drugs 3198

BP 686632 4/23/02 4/23/02 60 C Oxycontin 80 4800 Lanier Pharmacy

BP 686633 4/23/02 4/23/02 60 NC Doxepin 150 9000 Lanier Pharmacy

BP 686634 4/23/02 4/23/02 100 C Alprazolam 2 200 Lanier Pharmacy

BP 686636 4/23/02 4/23/02 60 NC Flurazepam 30 900 Lanier Pharmacy

BP 686637 4/23/02 4/23/02 30 C Melfiat 105 3150 Lanier Pharmacy

BP 683588 3/22/02 3/22/02 473 C Tussionex Pennkinetic Susp Mpi 10 4730 Lanier Pharmacy

BP 683590 3/22/02 3/22/02 100 C Oxycontin 40 4000 Lanier Pharmacy

BP 683593 3/22/02 3/22/02 100 C Carisoprodol 350 35000 Lanier Pharmacy

BP 683594 3/22/02 3/22/02 100 C Hydrocodone/Apap 10/500 1000 Lanier Pharmacy

BP 683596 3/22/02 3/22/02 100 C Alprazolam 2 200 Lanier Pharmacy

BP 683597 3/22/02 60 C Flurazepam 30 1800 Lanier Pharmacy

BP 683598 3/22/02 3/22/02 60 C Phentermine 30 1800 Lanier Pharmacy

BP 3811551 2/15/02 2/16/02 100 C Hydrocodone/Apap 10/500 1000 Eckerd Drugs 2632

BP 3811552 2/15/02 2/16/02 473 C Tussionex 10 4730 Eckerd Drugs 2632

BP 6811549 2/15/02 2/16/02 120 C Carisoprodol 350 42000 Eckerd Drugs 2632

BP 680161 2/15/02 2/15/02 120 C Oxycontin 40 4800 Lanier Pharmacy

33

BP 680167 2/15/02 2/15/02 105 C Alprazolam 2 210 Lanier Pharmacy

BP 680168 2/15/02 2/15/02 70 C Triazolam 25 1750 Lanier Pharmacy

BP 2805707 1/18/02 1/21/02 60 C Oxycontin 40 2400 Eckerd Drugs 2632

BP 3805706 1/18/02 1/21/02 480 C Tussionex 10 4800 Eckerd Drugs 2632

BP 3805711 1/21/02 1/21/02 100 C Hydrocodone/Apap 10/500 1000 Eckerd Drugs 2632

BP 6805710 1/18/02 1/21/02 100 C Carisoprodol 350 35000 Eckerd Drugs 2632

BP 671997 11/20/01 60 C Oxycontin 40 2400 Lanier Pharmacy

BP 672003 11/20/01 100 C Hydrocodone/Apap 10/500 1000 Lanier Pharmacy

BP 672005 11/20/01 240 C Tussionex Pennkinetic Susp Mpi 10 2400 Lanier Pharmacy

BP 664277 8/24/01 60 C Oxycontin 40 2400 Lanier Pharmacy

BP 664281 8/24/01 240 C Tussionex Pennkinetic Susp Mpi 10 2400 Lanier Pharmacy

BP 664282 8/24/01 96 C Hydrocodone/Apap 10/500 960 Lanier Pharmacy

BP 661184 7/27/01 473 C Tussionex Pennkinetic Susp Mpi 10 4730 Lanier Pharmacy

BP 661182 7/20/01 100 C Hydrocodone/Apap 10/500 1000 Lanier Pharmacy

BP 661186 7/20/01 60 C Oxycontin 40 2400 Lanier Pharmacy

Patient Rx # Write Date Fill Date Qty C/NC Drug Name Strength Total MG Pharmacy

BB 3951424 5/13/04 150 C Hydrocodone/Apap 10/500 1500 Eckerd Drugs 2632

BB 3948990 4/20/04 60 C Hydrocodone/Apap 10/500 600 Eckerd Drugs 2632

BB 503196 4/12/04 4/12/04 120 C Diazepam 10 1200 Springfield City Drugs

BB 502813 4/5/04 4/5/04 150 C Hydrocodone/Apap 10/650 1500 Springfield City Drugs

BB 2225579 3/8/04 3/15/04 10 C Duragesic (Mcg) 100 1000 Eckerd Drugs 3619

BB 854786 3/8/04 3/8/04 120 C Diazepam 10 1200 Lanier Pharmacy

BB 854787 3/8/04 3/8/04 150 C Hydrocodone/Apap 10/650 1500 Lanier Pharmacy

BB 851847 2/10/04 2/10/04 150 C Hydrocodone/Apap 10/650 1500 Lanier Pharmacy

BB 851849 2/10/04 2/10/04 120 C Diazepam 10 1200 Lanier Pharmacy

BB 4527552 1/22/04 1/22/04 37 C Hydrocodone/Apap 10/650 370 Wal-Mart 1032

BB 4527553 1/22/04 1/22/04 30 C Diazepam 10 300 Wal-Mart 1032

34

BB 3936046 1/12/04 1/17/04 38 C Hydrocodone/Apap 10/650 380 Eckerd Drugs 2632

BB 4936047 1/12/04 1/17/04 30 C Diazepam 10 300 Eckerd Drugs 2632

BB 424303 1/13/04 1/13/04 60 C Diazepam 10 600 Medicine Shoppe

BB Not Listed 1/13/04 75 C Hydrocodone/Apap 10/650 750 Medicine Shoppe

BB 3214699 12/11/03 12/22/03 75 C Hydrocodone/Apap 10/650 750 Eckerd Drugs 3619

BB 4214700 12/11/03 12/22/03 60 C Diazepam 10 600 Eckerd Drugs 3619

BB 4451516 12/11/03 12/12/03 75 C Hydrocodone/Apap 10/650 750 KMART 3355

BB 4451517 12/11/03 12/12/03 60 C Diazepam 10 600 KMART 3355

BB 841812 11/10/03 11/10/03 150 C Hydrocodone/Apap 10/500 1500 Lanier Pharmacy

BB 841813 11/10/03 11/10/03 120 C Diazepam 10 1200 Lanier Pharmacy

BB 838679 10/10/03 10/10/03 5 C Duragesic (Mcg) 50 250 Lanier Pharmacy

BB 838685 10/10/03 10/10/03 150 C Hydrocodone/Apap 10/500 1500 Lanier Pharmacy

BB 838687 10/10/03 10/10/03 120 C Diazepam 10 1200 Lanier Pharmacy

BB 4827607 9/9/03 150 C Hydrocodone/Apap 10 1500 Campbell City Eckerd Drug

BB 4827608 9/9/03 120 C Diazepam 10 1200 Campbell City Eckerd Drug

BB 4824857 8/8/03 150 C Hydrocodone/Apap 10 1500 Campbell City Eckerd Drug

BB 4824858 8/8/03 120 C Diazepam 10 1200 Campbell City Eckerd Drug

BB 4822419 7/9/03 150 C Hydrocodone/Apap 10 1500 Campbell City Eckerd Drug

BB 4822420 7/9/03 120 C Diazepam 10 1200 Campbell City Eckerd Drug

BB 4820209 6/12/03 120 C Diazepam 10 1200 Campbell City Eckerd Drug

BB 4820210 6/12/03 150 C Hydrocodone/Apap 10 1500 Campbell City Eckerd Drug

BB 4817814 5/13/03 150 C Hydrocodone/Apap 10 1500 Campbell City Eckerd Drug

BB 4817815 5/13/03 120 C Diazepam 10 1200 Campbell City Eckerd Drug

35

BB 4814882 4/10/03 150 C Hydrocodone/Apap 10 1500 Campbell City Eckerd Drug

BB 4814883 4/10/03 120 C Diazepam 10 1200 Campbell City Eckerd Drug

BB 4519378 3/18/03 60 C Diazepam 10 600 Wal-Mart 1032

BB 4519377 3/10/03 3/13/03 75 C Hydrocodone/Apap 10/500 750 Wal-Mart 1032

BB 4519377 3/13/03 0 C Hydrocodone/Apap 10/500 0 Wal-Mart 1032

BB 4519377 3/10/03 75 C Hydrocodone/Apap 10/500 750 Wal-Mart 1032

BB 4519378 3/10/03 3/10/03 60 C Diazepam 10 600 Wal-Mart 1032

BB 4519196 3/4/03 3/4/03 35 C Hydrocodone/Apap 10/500 350 Wal-Mart 1032

BB 4519197 3/4/03 3/4/03 21 C Diazepam 10 210 Wal-Mart 1032

BB 4808478 1/31/03 150 C Hydrocodone/Apap 10 1500 Campbell City Eckerd Drug

BB 4808479 1/31/03 100 C Diazepam 10 1000 Campbell City Eckerd Drug

BB 4518221 1/24/03 1/24/03 35 C Hydrocodone/Apap 10/500 350 Wal-Mart 1032

BB 4518222 1/24/03 1/24/03 21 C Diazepam 10 210 Wal-Mart 1032

BB 4517432 12/20/02 12/20/02 75 C Hydrocodone/Apap 10/500 750 Wal-Mart 1032

BB 4517434 12/20/02 12/20/02 50 C Diazepam 10 500 Wal-Mart 1032

BB 4804651 12/17/02 75 C Hydrocodone/Apap 10 750 Campbell City Eckerd Drug

BB 4804652 12/17/02 50 C Diazepam 10 500 Campbell City Eckerd Drug

BB 4478989 10/10/02 10/10/02 75 C Hydrocodone/Apap 10/500 750 Wal-Mart 1207

BB 4478990 10/10/02 10/10/02 50 C Diazepam 10 500 Wal-Mart 1207

BB 4798474 10/2/02 50 C Diazepam 10 500 Campbell City Eckerd Drug

BB 4798475 10/2/02 75 C Hydrocodone/Apap 10 750 Campbell City Eckerd Drug

BB 4842773 9/27/02 40 C Clonazepam 1 40 Eckerd Drugs 2632

BB 4444463 9/19/02 9/19/02 150 C Hydrocodone/Apap 10/500 1500 KMART 3355

BB 4842773 9/18/02 10 C Clonazepam 1 10 Eckerd Drugs 2632

36

BB 697757 9/13/02 150 C Hydrocodone/Apap 10/500 1500 Lanier Pharmacy

BB 4478282 9/9/02 9/9/02 50 C Diazepam 10 500 Wal-Mart 1207

BB 697756 8/19/02 8/19/02 50 C Diazepam 10 500 Lanier Pharmacy

BB 697757 8/19/02 8/19/02 150 C Hydrocodone/Apap 10/650 1500 Lanier Pharmacy

BB 697757 8/19/02 150 C Hydrocodone/Apap 10/500 1500 Lanier Pharmacy

BB 4842773 8/13/02 30 C Clonazepam 1 30 Eckerd Drugs 2632

BB 4842773 8/6/02 30 C Clonazepam 1 30 Eckerd Drugs 2632

BB 4842773 8/1/02 30 C Clonazepam 1 30 Eckerd Drugs 2632

BB 4842773 7/17/02 7/17/02 100 C Carisoprodol 350 35000 Eckerd Drugs

BB 694643 7/17/02 7/17/02 150 C Hydrocodone/Apap 10/500 1500 Lanier Pharmacy

BB 694643 7/17/02 150 C Hydrocodone/Apap 10/500 1500 Lanier Pharmacy

BB 691950 6/17/02 6/17/02 100 C Diazepam 10 1000 Lanier Pharmacy

BB 691951 6/17/02 6/17/02 150 C Hydrocodone/Apap 10/500 1500 Lanier Pharmacy

BB 691951 6/17/02 150 C Hydrocodone/Apap 10/500 1500 Lanier Pharmacy

BB 689039 5/17/02 5/17/02 100 C Diazepam 10 1000 Lanier Pharmacy

BB 689042 5/17/02 5/17/02 150 C Hydrocodone/Apap 10/500 1500 Lanier Pharmacy

BB 393436 5/11/02 60 C Diazepam 10 600 Walgreens 4847

BB 685758 4/15/02 4/15/02 30 C Ambien 10 300 Lanier Pharmacy

BB 685758 4/15/02 4/15/02 100 C Diazepam 10 1000 Lanier Pharmacy

BB 685761 4/15/02 4/15/02 150 C Hydrocodone/Apap 10/650 1500 Lanier Pharmacy

BB 4510723 3/14/02 3/14/02 100 C Diazepam 10 1000 Wal-Mart 1032

BB 4510724 3/14/02 3/14/02 30 C Ambien 10 300 Wal-Mart 1032

BB 4510725 3/14/02 3/14/02 120 C Hydrocodone/Apap 10/650 1200 Wal-Mart 1032

BB 401619 3/13/02 3/13/02 10 C Hydrocodone/Apap 10/500 100 Walgreens 4847

BB 393436 2/5/02 40 C Diazepam 10 400 Walgreens 4847

BB 393075 2/4/02 60 C Endocet 10/650 600 Walgreens 4847

Unless otherwise indicated all drug descriptions were drawn from the Physicians' Desk Reference (Thom son 61st ed. 2007) and the list of controlled

substances under the Controlled Substances Act, 21 U.S.C. § 801, found at 21 CFR § 813.

37

Alprazolam: a benzodiazepine designed to treat anxiety; schedule IV Hydrocodone/Apap: opiate, schedule II

Ambien: a hypnotic used to treat sleeplessness; schedule IV Melfiat: an uncommon stimulant or diet medication (R 13-220, at 33); schedule

III

Carisoprodol: a non-controlled muscle relaxant; (R 13-220, at 35) Oxycontin: a controlled release form of the opiad oxycodone; schedule II

Clonazepam: a benzodiazepine designed to treat anxiety; schedule IV Phentermine: a weight lose drug; schedule IV

Diazepam: a benzodiazepine derivative often referred to as valium; schedule IV Prevacid: a non-controlled medication to inhibit gastric acid secretion

Doxepin: non-controlled anti-depressant Prozac: non-controlled anti-depressant; (R 13-220, at 34)

Duragesic (M cg): mechanism to deliver fentanyl, an opiate, through the skin; schedule II Triazolam: schedule IV

Endocet: an oxycodone intended to treat pain; schedule II Tussionex: hydrocodone used to treat upper respiratory symptoms; schedule III

Flurazepam: benzodiazepine used to treat insomnia; schedule IV

38