Petition for Writ of Certiorari — McIver v. United States, 127 S. Ct. 2276 (2007) (No. 06-1335)

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No. 06-

IN THE

Supreme Court of the United States

RONALD A. McIVER, D.O.,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On PETITION FOR A Writ OF CERTIORARI TO THE\

UNiteD STATES COURT OF APPEALS

FOR THE FourRTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

JOHN P. FLANNERY, I]

CAMPBELL MILLER ZIMMERMAN, PC

19 East Market Street

Leesburg, VA 20176

(703) 771-8344

Attorneys for Petitioner

QUESTION PRESENTED

May a physician who treats chronic pain patients be

convicted of intending to traffick in drugs for merely failing

to conform with a “professional norm” that is “within” but

not “outside” the “course of professional medical practice”

as required by this Court’s holding in United States v. Moore,

423 U.S. 122, 143, 96 S.Ct. 335 (1975)?

TABLE OF CONTENTS

QUESTION PRESENTED

TABLE OF CONTENTS

TABLE OF CITED AUTHORITIES

TABLE OF APPENDICES

STATUTORY PROVISIONS AND REGULATIONS

INVOLVED

Pertinent regulation

Pertinent portions of the Controlled

Substances Act

Jurisdiction

The charges, conviction and appeal

Pain in America — and how our Executive

Branch makes it worse

Executive Branch Expert defines junk science

“norm” at trial

Contents

Page

The court’s erroneous instructions ........ 12

The evidence at trial that was the subject of

the expert’s “junk science” and the court’s

erroneous jury instructions ..............

1. Beverly Brown

ee SD ivr val iouknrnnar iene,

Angela Knight

4. Les Smith

5. Seth Boyer

6. Lawrence Shealy

REASONS FOR GRANTING THE PETITION ...

CONCLUSION

TABLE OF CITED AUTHORITIES

Page

Cases:

Gonzales v. Oregon, 546 U.S. 243, 126 S. Ct. 904

(2006) 4, 23, a4 oe

Linder v. United States, 268 U.S. __ (1925)

Morissette v. United States, 342 U.S. 246, 72 S. Ct.

240 (1952)

Oregon v. Ashcroft, et al, 192 F. Supp. 2d 1077

(D. Oregon 2002)

United States v. Moore, 423 U.S. 122, 96S. Ct. 335

(1975) 6, 7, 8, 20, 25

United States v. Rosenberg, 515 F.2d 190 (9° Cir.

United States v. Tran Trong Cuong, 18 F.3d 1132

(4% Cir. 1994)

Statutes and Regulations:

18 U.S.C. §3231

21 U.S.C. §802(5)

21 U.S.C. §802(21)

21 U.S.C. §821

Cited Authorities

21 U.S.C. $841

21 U.S.C. §841(a)

28 U.S.C. §1254(1)

21 C.F.R. $1306.04

Rule:

United States Supreme Court Rule 10

Other Authorities:

Jung G, Reidentbert M, DeEcEIvING PuysicIANns,

In- Press (2006)

Loeser, BONICA’S MANAGEMENT OF Pain, 3” ed.,

Lippincott Williams & Wilkins (2001) ........

Pain, Opioids and Addiction: “An Urgent Problem

for Doctors and Patients”, 3/5/07, NIH

Conference (http://videocast.nih.gov/

PastEvents.asp?c=1.)

Cited Authorities

“Rights and Responsibilities of Physicians in the Use

of Opioids for the Treatment of Pain” (Public

Policy Statement on the Rights and

Responsibilities of Healthcate professionals in the

use of Opioids for the Treatment of Pain —- a

consensus document of - the American Academy

of Pain Medicine, the American Pain Society, and

the American Society of Addiction Medicine) ..

State Board of Medical Examiners of South Carolina:

“Guidelines for the Use of Controlled Substances

for the Treatment of Pain” (1999)

Zipes D.P., Wellens H.J.J., Sudden Cardiac Death.

Circulation. 1998:98:2334-2351; available at

http://circ.ahajournals.org/cgi/content/full/98/2 1/

Vil

TABLE OF APPENDICES

Page

Appendix A — Opinion Of The United States

Court Of Appeals For The Fourth Circuit Decided

re er oe la

Appendix B — Judgment Of The United States

District Court For The District Of South Carolina

ENOOG DONNIE 14, DAIS occ ccc ccscvavecvns 32a

Appendix C — Order Of The United States Court

Of Appeals For The Fourth Circuit Denying

Petition For Rehearing Filed January 3, 2007... 40a

Petitioner Ronald A. McIver, D.O., respectfully petitions

for a writ of certiorari to review the judgment of the United

States Court of Appeals for the Fourth Circuit in this case.

OPINION BELOW

The opinion of the Fourth Circuit Court of Appeals (Pet.

App. la-31a) is reported at 470 F.3d 550 (2006).

STATEMENT OF JURISDICTION

The court of appeals entered its judgment on December

5, 2006. The court of appeals denied petitioners’ petition for

rehearing by order dated January 3, 2007 (Pet. App. 40a-

41a). The jurisdiction of this Court is invoked under 28

U.S.C. §1254(1).

STATUTORY PROVISIONS AND

REGULATIONS INVOLVED

a. Pertinent regulation:

21 C.F.R. §1306.04 provides:

§ 1306.04 Purpose of issue of prescription

(a) 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

prescription 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 using it, shall

be subject to the penalties provided for violations

of the provisions of law relating to controlled

substances.

(b) A prescription may not be issued in order for

an individual practitioner to obtain controlled

substances for supplying the individual

practitioner for the purpose of general dispensing

to patients.

“detoxification treatment” or “maintenance

treatment,” unless the prescription is for a\

Schedule Ul, IV, or V narcotic drug approved by

the Food arid Drug Administration specifically for ‘

use in maintenance or detoxification treatment and

the practitioner is in compliance with

requirements in § 1301.28 of this chapter.

b. Pertinent portions of the Controlled Substances Act:

21 U.S.C. §841(a) provides:

§ 841. Prohibited Acts A

(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; or

(2) to create, distribute, or dispense, or

possess with intent to distribute or

dispense, a counterfeit substance.

21 U.S.C. §802(5) and (21) provide:

§ 802. Definitions

As used in this subchapter:

(5) The term ‘control’ means to add a drug or

other substance, or immediate precursor, to a

schedule under part B of this subchapter, whether

by transfer from another schedule or otherwise.

KK KK

(21) The term ‘practitioner’ means a physician,

dentist, veterinarian, scientific investigator,

pharmacy, hospital, 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, conduct

research with respect to, administer, or use in

teaching or chemical analysis, a controlled

substance in the course of professional practice

or research.

21 U.S.C. §821 provides:

§ 821. Rules and regulations

The Attorney General is authorized to promulgate

rules and regulations and to charge reasonable fees

relating to the registration and control of the

manufacture, distribution, and dispensing of

controlled substances and to the registration and

control of regulated persons and of regulated

transactions.

STATEMENT OF THE CASE

A. Jurisdiction

This petition arises out of the criminal prosecution of a

physician, Dr. Ronald Mclver, the petitioner herein,. who

treated chronic pain patients in the District of South Carolina.

The charges were based on Title 21, United States Code,

Section 841 and the district court had jurisdiction pursuant

to 18 U.S.C. $3231.

B. The charges, conviction and appeal

Dr. McIver treated 1,000 patients in his medical practice.

Dr. Mclver was targeted based on his prescription of opioids

to these patients. The government culled from his seized

medical files 10 chronic pain patients that they considered

to be inappropriately treated. The jury convicted Dr. Mclver

as to 6 of those 10 patients. Several patients stated at trial

that they had “conned” Dr. McIver about whether they needed

pain medication. The government’s expert also described

“norms” that he thought should apply that were within the

bounds of professional medical practice. In the end, this

prosecution was therefore about how Dr. Mclver treated less

than 1% of all of his pain patients, according to the “norms”

defined at trial by the government’s expert.

Dr. Mclver was indicted on one count of conspiring with

individual pain patients to unlawfully distribute controlled

substances, despite the fact that the underlying distribution

charge itself required the concerted action of at least two

persons.

Dr. Mclver was also charged with fourteen counts of

unlawful distribution of controlled substances, based on the

prescriptions he wrote for pain medication for ten chronic

pain patients at his pain management clinic.

The prosecution was not about whether Dr. Mclver

intended to traffic in drugs, instead of treating his patients;

it was not about whether Dr. McIver had acted “outside the

course of professional medical practice”; it was not about

whether Dr. McIver intended to act as a “pusher”; the

prosecution was instead about whether Dr. Mclver violated

“professional norms” defined for the first time by the

government’s expert at trial and entirely “within” the course

of professional medical practice.

The jury trial lasted seven days, with five days of

evidence (April 11-15, 2005), closing argument and jury

instructions on April 18, 2005, and the adverse verdict

received on April 19, 2005. The jury found Dr. McIver guilty

of the conspiracy count and eight distribution counts

involving the 6 patients. The jury acquitted on six distribution

counts. On August 26, 2005, the district court imposed

concurrent sentences of 30 years on counts 11 and 12, as to

the patient Dr. McIver treated who died, and 20 years on

each other count for distributing drugs, rather than treating

patients. When remanded to custody, Dr. McIver had a heart

attack and he is now lodged at the federal facility located in

Butner, North Carolina.

On September 21, 2006, a 3-judge panel of the Court of

Appeals for the 4" Circuit heard oral argument.

On December 5, 2006, the Circuit issued its opinion,

and, on January 7, 2007, denied Dr. MclIver’s petition for

rehearing_en banc.

C. Pain in America — and { >w our Executive Branch

makes it worse

Our Executive Branch is exceeding the authority granted

by the U.S. Congress under Title 21, United States Code,

Section 841(a)({1), that empowered the Executive Branch to

prosecute physicians for iliicit drug dealing when the

physicians acted with the specific intent to push drugs rather

than to treat patients. United States v. Moore, 423 U.S. 122,

143, 96 S. Ct. 335 (1975); see also Title 21, United States

Code, Section 802(21).

Our Executive Branch is now prosecuting physicians for

prescribing opioids to chronic pain patients because our

Executive Branch disapproves of medical treatment with

opioids and not because the physician is pushing drugs.

Our Executive Branch is prosecuting physicians for

failing to conform with a “professional norm” that the

Executive Branch defines for the first time at trial after the

physician has treated the pain patient.

Petitioner was prosecuted because he didn’t do what the

“average” physician might do, and because he didn’t conform

to “the norm’, as defined by the Executive Branch’s expert,

rather than because Dr. McIver acted “outside the course of

professional medical practice” and with the specific intent

to push drugs.

The Executive Branch’s “norm” is less rigorous than the

standard enunciated by the Congress, and the formulation

approved by this Court in Moore, supra, in that the “norm”

is any medical practice that deviates from an ad hoc “norm”

that falls “within” and not “outside” the course of

professional practice.

Our Executive Branch has thus usurped the authority

reserved to the several states to regulate and to define

appropriate medical treatment. Compare State Board of

Medical Examiners of South Carolina: “Guidelines for the

Use of Controlled Substances for the Treatment of Pain”

(1999),

Our Executive Branch is supplanting its “judgment” for

medical science and without the authority to create such

“norms.” This Court is well aware of how the Executive

Branch exceeded its jurisdictional competence when it sought

to defeat a state legislature’s preference to allow assisted

suicide. Gonzales v. Oregon, 546 U.S. 243, 126 S. Ct. 904,

at 922 (2006).

This prosecution of a physician for failing to conform

with a norm established by the Executive Branch is another

instance of the Executive Branch exceeding its jurisdictional

competence.

The Executive Branch, by its prosecutions, and the

Fourth Circuit, by upholding the conviction below, eliminated

the requisite specific intent that this court required in Moore.

The Executive Branch, and the lower courts, effectively

created a strict liability standard for Section 841(a) when

the Accused was a physician. The clearest indication that

strict liability - and not specific intent - was the standard

applied here was that, notwithstanding irrefutable evidence

that the pain patients “conned” the petitioning physician into

prescribing medicine, Dr. McIver was found criminally

responsible. The Fourth Circuit Court held in United States

v. Tran Trong Cuong, 18 F.3d 1132 (4 Cir. 1994), that proof

of negligent medical practice was hardly proof of any crime,

particularly drug dealing. In Tran, the Fourth Circuit Court

also held, if a patient “conned” a physician who gave drugs

to the conniving patient, the physician lacked the knowledge

and the specific intent to commit the crime of distribution.

This case therefore reflects an inapt retreat from specific

intent to strict liability, and from “outside the course of

professional practice” to an alleged deviation from some less

rigorous “norm” as a standard to convict a physician.

This is a retreat from what was constitutionally

permissible to what is constitutionally impermissible

according to this Court’s holding in Moore.

Our Executive Branch, by its wrong-headed prosecutions

of physicians, is daily making chronic pain worse, creating a

public health hazard, chilling the treatment by physicians of

the millions of this nation’s chronic pain patients when it

should instead be easing the relentless pain that these chronic

pain patients suffer.

D. Executive Branch Expert defines junk science

“norm” at trial.

Dr. Storick, the government’s expert, was addiction

averse, like the government’s policy, and too afraid of a

patient’s potential for addiction to treat chronic pain, even

though only a small percentage of pain patients become

addicted. J.A. 640.

Dr. Storick is afraid of being sued for prescribing

OxyContin, J.A. 609, admits of a widespread fear “... that

the government will come after [physicians],” J.A. 583, and

he minimizes how much OxyContin he prescribes, J.A. 608.

DEA Agent Rene Crowley conceded that neither Title

21, United States Code, Section 841, nor the Code of Federal

Regulations, limited the number of OxyContin tablets that a

physician may prescribe. J.A. 50. Ms. Crowley also conceded

that there is no maximum dosage for any of the medications

that were at issue in Dr. MclIver’s indictment, J.A. 51.

Dr. Storick admitted as well that there was no maximum

dosage for opioids. J.A. 575. But this is where the problem

arises as to “norms”. Dr. Storick’s norm is that the dosage

should be limited. He acknowledged a University of

Wisconsin Pain Management Study, at p. 60, that “[o]pioids

should be titrated [increased] by a percentage of the current

dose based on the intensity of pain.” J.A. 584. Dr. Storick

agreed that “titration” (increasing the dosage) was an apt

approach for cancer patients, but he insisted it was “a

controversial argument” as to other patients. J.A. 585. It was

not outside the course of professional medical practice, he

said, but it was “controversial.” He dismissed the Wisconsin

study as “academic” and insisted that he knew better because,

he said, “I work for a living.” J.A. 585. He grudgingly

admitted some practicing physicians will titrate at a hundred

percent for moderate to severe pain. J.A. 665. But he

disagreed with that. J.A. 665.

Dr. Storick said that the highest daily dose that he would

prescribe to a non-cancer patient with chronic pain was 160

mg OxyContin (80 mg OxyContin twice a day). J.A. 635-

636. He said he was unfamiliar with the fact that Medicaid

allows a daily dose of up to 960 mg of OxyContin (or eighty

tablets). J.A. 638.

Dr. Storick also objected to any physician allowing any

patient to take a range of dosages as necessary for pain, for

example, one to five tablets. J.A. 643. He said that such a

prescription wasn’t “beyond the bounds of medical practice”,

just that it was “a lot of medicine.” Jd.

While other physicians might try to reduce a patient’s

pain from ten, being excruciating and unbearable pain, to

three or two if possible, Dr. Storick would never try to reduce

a patient’s pain to less than 5 out of 10. J.A. 588. If you have

a patient who says his pain is 4, according to Dr. Storick, the

patient has to learn to live with it. J.A. 589, 590.

Dr. Storick insisted that 1 in 5 chronic pain patients are

abusing medication sometime or other, unbeknownst to the

physician. J.A. 505. But Dr. Mark Sullivan, Professor of

Psychiatry and an Adjunct Professor of Medical History and

Ethics at the University of Washington, confirmed, that- only

2% of chronic pain patients may become addicted and that

there is a 98% chance that a patient who claims that he has

chronic pain is “on the level.” See Pain, Opioids and

Addiction: “An Urgent Problem for Doctors and Patients”,

3/5/07, NIH Conference (http://videocast.nih.gov/

PastEvents.asp?c=1.)

Knowing who is deceiving the physician is hard to

uncover, according to a recent study conducted by Drs. Beth

Jung and Marcus Reidenberg:

Physicians operate with what Burgoon et al.

call a truth bias. That is, they presume that

patients’ presentation of themselves are true,

complete and accurate. Their assessment of

patients’ pain complaints are based both on current

information (obtained in the interview and

physical examination) and on the starting point,

or anchoring point for the assessrnent. Doctors

assume that patients come to see them because

they have a problem for which they want

treatment. Law enforcement personnel appear to

have a different assumption when they interview

some people.

See Jung G, Reidentbert M, Deceivinc Puysicians, In Press

(2006).

It is good that patients are “on the level,” according to

Dr. Sullivan, because there is almost no way to confirm that

a person has pain; the Center for Disease Control statistics

reveal that “80% of lower back pain cannot be identified

with imaging” whether it’s an fMRI, PET, CT-scan or x-ray.

See Pain, Opioids and Addiction: “An Urgent Problem for

Doctors and Patients”, supra.

The medical community is of one mind that “[i]t is

sometimes a difficult medical judgment as to whether opioid

therapy is indicated in patients complaining of pain because

objective signs are not always present.” See “Rights and

Responsibilities of Physicians in the Use of Opioids for the

Treatment of Pain” (Public Policy Statement on the Rights

and Responsibilities of Healthcare professionals in the use

of Opioids for the Treatment of Pain — a consensus document

of - the American Academy of Pain Medicine, the American

Pain Society, and the American Society of Addiction

Medicine).

While cancer “is a symptom of a disease bearing a direct

relationship predominantly with tissue pathology[,] ... there

is only a weak association between reported pain and

objective findings of disease in chronic pain not associated

with cancer” (italics supplied). See Loeser, Bonica’s

MANAGEMENT OF Pain, 3 ed., Lippincott Williams & Wilkins

(2001).

Dr. Storick confirmed on cross-examination that “pain

is a subjective amount of discomfort” and “there’s no way to

really measure it.” Dr. Storick, the government’s expert, said

he wouldn’t prescribe opioids for any patient unless he could

find objective signs of pain. J.A. 568. In other words, Dr.

Storick would purposefully fail to treat patients with lower

back pain, migraine headaches, fibromyalgia, reflexive

sympathetic dystrophy disorder (RSD), and various

neuropathic disorders — if he couldn’t find “objective signs

of pain”. That was his norm or standard. But all of these

disorders were treated by Dr. Mclver.

E. The court’s erroneous instructions

The court compounded the junk science that the

government’s expert published with its erroneous jury

instructions:

(1) failing to instruct the jury in words or substance that

Dr. McIver had “to intend” to push drugs,

(2) failing to instruct the jurors that acting “outside the

course of professional medical practice” only “tended” to

show drug dealing, and

(3) by giving the jury license to determine whether Dr.

Mclver deviated from “norms” that were not themselves

“outside the course of medical practice”, and inviting the

jury to make up its own standard, instructing the jury that

“there [were] no specific guidelines concerning what is

required to support a conclusion that a defendant physician

acted outside the usual course of professional practice .. .”

(underscoring supplied). J.A. 1241, 1291.

The Court instructed: “A physician’s own methods do

not themselves establish what constitutes medical practice”

and “in determining ... whether the defendant’s conduct was

within the bounds of professional medical practice you should

... consider the testimony you havesheard relating to what

has been characterized during the trial as the norms of

professional practice” (underscoring supplied) J.A. 1243,

1293. The Court never instructed the jury how to reconcile

an instruction regarding what was “outside the bounds of

professional medical practice” with the less rigorous standard

of what wasn’t “normal” or “average.”

The Court further instructed the jury: “You should also

consider the extent to which, if at all, any violation of

professional norms you find to have been committed

interfered with his treatment of his patients and contributed

to an over prescription and/or excessive dispensation of

controlled substances” (emphasis supplied). J.A. 1243, 1293.

This particular instruction perhaps created the most

mischief as it combined Dr. Storick’s “norm” that there was

a limit on prescribing opioids, that the patient could not

decide for himself to dispense medication based on his

pain, that prescribing opioids for some illnesses was

“controversial”, and that he would never prescribe an opiod

absent an objective basis to confirm the origin of the pain.

None of Dr. Storick’s “norms” were “outside the bounds of

professional medical practice.” But the record shows these

norms were conclusive of the counts for which Dr. McIver

was convicted.

The court further instructed the jury to consider “the

totality of [Dr. Mclver’s] actions and the circumstances

surrounding them and the extent and the severity of any

violations of professional norms you find he committed”

(emphasis supplied). J.A. 1244, 1294. But how was the jury

to determine the “severity” of any “norm” except according

to what the expert instructed.

F. The evidence at trial that was the subject of the

expert’s “junk science” and the court’s erroneous

jury instructions

We now discuss those patients that resulted in Dr.

Mclver’s conviction, emphasizing the conjunction of the

government’s “norms” with the erroneous jury instructions;

each conviction can be explained in this fashion:

1. Beverly Brown

Dr. Storick explained that “it. was not beyond the scope

of medical practice, [nor] out of the bounds of medical

practice ... to prescribe an opioid for someone who’s been

a crack addict.” J.A. 629. See Linder v. United States, 268

U.S. (1925).

But he wouldn’t do it. J.A. 630. It wasn’t his norm. He

would use a “better drug.” J.A. 630. Dr. Storick was asked,

“Are there other physicians, Dr. McIver [for instance],

somebody who may choose to [prescribe an opioid]? He said,

“Sure. [ll disagree with that, but there’s nothing wrong.”

J.A. 630.

That’s what Dr. Storick said until, seemingly, he recalled

that Beverly Brown (named in Count 5) was a crack addict.

J.A. 630. Dr. Storick promptly reversed his position, and said

it wasn’t okay. J.A. 631. He said “some physicians probably

would .. .”, but he “can’t tell you who,” nor what percentage

of medical practice does, /d., only that this practice was

“controversial” and not the norm. /d.

Ms. Brown also suffered from Reflex Sympathetic

Dystrophy Disorder (RSD); Dr. Storick said that treating a

patient with RSD with opioids was “very controversial.” J.A.

522. It wasn’t “outside the bounds of professional medical

practice”. But he wouldn’t do it.

2. Kyle Barnes.

Kyle Barnes said he went to Dr. McIver because he had

been diagnosed with fibromyalgia and understood that Dr.

McIver treated the condition. J.A. 347-348. Dr. Storick

thought treating fibromyalgia with opioids was “very

controversial” except in low dosages because, otherwise, he

feared the patient was diverting the medication. J.A. 511,

533-534. He confirmed that “medicine’s a very gray area and

fibromyalgia is a good example of a gray area.” J.A. 661. He

confirmed there’s a difference of opinion in the medical

profession about how best to treat fibromyalgia. J.A. 662.

He said only a minority would treat fibromyalgia with

opioids. J.A. 663. He said: “that’s not a standard treatment

for that patient.” Id. Not the norm!

Mr. Barnes learned about Dr. McIver from the Internet,

that he treated fibromyalgia, and he said: “I thank God every

day for leading us to you.” J.A. 367. He told Dr. McIver he

was disabled from depression. J.A. 367. Dr. McIver

conducted range of motion tests, directed exercises, sought

relief from pressure points, massaged the muscles, confirmed

that Mr. Barnes had fibromyalgia, and prescribed OxyContin.

J.A. 350, 367-368. Mr. Barnes saw Dr. Mclver for treatments

for about two years. J.A. 351. Mr. Barnes’ Medicaid did not

cover the cost of his medicine and, unbeknownst to

Dr. McIver, he sold some to make up the difference in cost.

J.A. 330. He did the same with the methadone that Dr. McIver

late prescribed. J.A. 354. At trial, Mr. Barnes said he had

exaggerated his pain. J.A. 361. He said he lied about the

pain he had because he “didn’t want to stop getting what

[he] was getting. J.A. 363. Mr. Barnes first “confessed” that

he had lied about his pain after he was charged with medicaid

fraud — when he was testifying for the government.

J.A. 358, 365.

3. Angela Knight

Angela Knight was Dr. Mclver’s patient for three years

and until Dr. McIver was arrested. J.A. 387, 393. Ms. Knight,

61, had been in two car wrecks and suffered from a lower

back pain injury from the ‘80s, suffered a compression

fracture, perhaps aggravated by osteoporosis, and the pain

was chronic, interfering with her ability to sleep and to work,

and it was “worse some days than other days,” forcing her to

stay home on the worst days. J.A. 388, 398, 399, 534-535.

Dr. Mclver administered therapy, used electrodes, and

prescribed medication including OxyContin. J.A. 388, 392.

When she first visited Dr. McIver, her pain was 7 out of 10,

and Dr. Mclver’s got it down to 3 or 4. J.A. 404. Over time

she was able to walk as far as 2 2 miles. J.A. 653. She had

pain when she went to Dr. Mclver and she still had the lower

back pain and headaches when she testified at the trial.

J.A. 397. She insisted that she took the OxyContin as

prescribed and didn’t abuse it. J.A. 407. While she had a

negative drug screen (indicating she wasn’t taking the

OxyContin), she had a witness that she had taken the

medicine, and Dr. McIver confirmed that the lab test wouldn’t

show OxyContin. J.A. 407, 994. While Dr. Storick thought

that treating her for pain was “not an unreasonable treatment

option,” J.A. 541, he was concerned because she traveled

from Lancaster to Dr. Mclver, rather than use a physician

closer to where she lived. J.A. 541-542. The most he could

say was “that’s sort of an unusual distance.” J.A. 646.

Dr. Storick was also concerned that she a negative drug

screen. J.A. 658. Dr. McIver was convicted of prescribing to

her.

4. Les Smith

Les Smith claimed that the scar on one wrist from an

accident, and the- arthritis in his other wrist, accounted for

his pain, necessitating pain medication. McIver found he had

a syringe on one occasion, but he claimed he used it for

“juicing up” the bait. J.A. 185, 980. Mr. Smith said at trial

he had been lying to the physician. J.A. 179, 188, 195.

5. Seth Boyer

Seth Boyer had suture marks in his foot and claimed he

had chronic pain. J.A. 254. Dr. McIver did in fact call and

write the authorities asking whether his suspicions about

some patients were well-founded, and whether he should

discharge them as patients. J.A. 83-34, 981. But the

government remained silent. J.A. 85-86. Boyer had track

marks but he didn’t think that Dr. Mclver could see them.

J.A. 254. He said at trial he was lying to Dr. MclIver.

J.A. 249, 254-256.

The government charged that Dr. Mclver conspired with

his patients. But, there is and can be no conspiracy, as a matter

of law, when the offense requires concerted action to begin

with, for instance, bribery (requiring two persons), or, as in

this case, the distribution of a prescription drug (by a doctor

to a patient); yet the jury was instructed that two persons

who made a criminal agreement were sufficient to make out

conspiracy. In addition, the patients he conspired with,

Mr. Boyer and Mr. Smith, testified they tried to mislead

Dr. Mclver and “pretended not to know each other.” J.A.

183.

6. Lawrence Shealy.

The patient who died, Lawrence Shealy, suffered

relentless chronic pain from crippling arthritis, back and knee

pain, heart disease, terrible depression, sleeplessness, and,

unsurprisingly, had tried to commit suicide; there were even

some x-rays of Mr. Shealy’s back which showed “some

degenerative changes or arthritic changes in his low back.”

J.A. 524.

Dr. Storick’s testimony relating to Mr. Shealy was limited

to the prescriptions he had, no medical records, no physical

exams, no progress notes, not from Dr. Mclver’s practice,

nor from Mr. Shealy’s other physician, Dr. Mitchell.

J.A. 525. But Storick said the prescriptions were for “a lot

of medicine.” J.A. 526. The mischief here is accomplished

by Dr. Storick’s summary comment, “a lot of medicine,” in

conjunction with the judge’s charge, inviting the jury to

consider “any violation of professional norms you find to

have been committed ... and [that] contributed to an over

prescription and/or excessive dispensation of controlled

substances” (underscoring added). J.A. 1243, 1293.

At the time of his death, on May 29, 2002, Mr. Shealy

had an enlarged heart, a chronic problem that he’d had for

years, an enlarged spleen and liver from congestive heart

failure, severe coronary artery atherosclerosis, hardening of

the arteries, 90% blockage of his left anterior descending

artery, and a 50% blockage of the left circumflex arterial

branch, a scarred heart from an earlier heart attacks, and

congested organs, meaning, as the blood backs up into the

system, that it backs into the organs. J.A. 422, 427, 431, 435.

There is every reason to believe that Mr. Shealy died

because of the complications involving his heart disease,

having nothing to do with the medication that he was taking:

When defense attorneys raised the concept of

sudden cardiac death, medical examiners [as here]

typically resisted this possibility. One testified that

the decedent wasn’t known to suffer from cardiac

disease. This contention reveals a startling

ignorance of general medicine, as it is generally

known that sudden death is the commonest

presenting symptom of cardiovascular disease.

See Zipes D.P., Wellens H.J.J., Sudden Cardiac Death.

Circulation. 1998:98:2334-2351; available at Attp://

circ.ahajournals.org/cgi/content/full/98/2 1/2334.

At the time of his death, it is true that Mr. Shealy had

various medications available to him, according to

investigators and found in the autopsy report, including

Zyprexa, Alprazolam 2mg, Paxil CR, Nexium Trazadone (for

stage 4 sleep), Provigil 200 mg, OxyContin 80 mg (5 tablets

every 12 hours)(180 prescribed on 5/12/02), Roxicodone 30

mg (1-6 tabs every 4 hours for breakthrough pain)(150

prescribed on 5/28/03), and Amitriptyline 100mg.

At the time of his death, there were 14 OxyContin

remaining in Mr. Shealy’s prescription bottle, and another 5

loose nearby laying outside of his prescription bottle, totaling

19 OxyContin tablets, suggesting that Mr. Shealy may have

taken 161 tablets of the medication that Dr. McIver had

prescribed on May 12"; if Mr. Shealy had taken 20 tablets a

day, as he was instructed he could, starting on May 12"

(assuming, for the sake of conjecture, that he took only one

on May 12"), then he would have taken 161 tabs by May

28".

If — as the government insisted — the prescribed

OxyContin accounted for Mr. Shealy’s death on May 29",

then why hadn’t OxyContin caused his death on any earlier

day before he died, as Mr. Shealy apparently took the

prescribed dosage without any difficulty for the 16

intervening days until he died on May 29°?

REASONS FOR GRANTING THE PETITION

This case presents an issue in which the Fourth Circuit

has decided an important federal question in a way that

conflicts with this Court’s holding in United States v. Moore,

423 U.S. 122, 143, 96 S. Ct. 335 (1975). See Rule 10 of the

Rules of the Supreme Court of the United States.

A physician who treats chronic pain patients may not be

convicted of intending to traffick in drugs for merely failing

to conform with a “professional norm” that is “within” but

not “outside” the “course of professional medical practice”

as is required by this Court’s holding in Moore.

In the 1970's, this Court wrestled with the question of

whether the Controlled Substances Act (“CSA”) applied to

physicians at all. Congress had enacted legislation that a

medical practitioner may “distribute, dispense, conduct

research with respect to, administer, or use in teaching or

chemical analysis, a controlled substance in the course of

professional practice or research” (emphasis supplied). See

21 U.S.C. Section 802(21). This Court therefore held that a

physician is criminally liable under Title 21, United States

Code, section 841 of the Controlled Substances Act (“CSA”’’)

when he is acting, prescribing or distributing, “outside the

course of professional practice”, meaning as a “drug pusher”

instead of as a physician. United States v. Moore, 423 U.S.

122, 124, 96S. Ct. 335 (1975).

This crime requires the physician’s specific intent to

traffic in drugs. Jd. The medical practitioner has to act

deliberately. See Morissette v. United States, 342 U.S. 246,

72S. Ct. 240 (1952). In United States v. Rosenberg, 515 F.2d

190 (9" Cir. 1975), for example, the Court said, “the jury

[must] look into [a practitioner's] mind to determine whether

he prescribed the pills for what he thought was a medical

purpose or whether he was passing out the pills to anyone

who asked for them.” Jd., at 197.

During oral argument, on September 21, 2005, in United

States v. Mciver, Docket No. 05-4884, Circuit Court Judge

Wilkinson therefore asked what the government thought the

criminal offense was in this case.’ When the government

finally responded, the answer wasn’t that Dr. McIver had

been trafficking in drugs, it was that he had been “over-

prescribing medicine”. The government’s response at the oral

argument conformed to the government’s expert opinion, in

accordance with his “professional norms”, wary of

prescribing opioids, falling “within” but not “outside” the

bounds of professional practice.

Judge Wilkinson said that he couldn’t ignore the fact

that the prosecution’s expert witness repeatedly testified to

“professional norms” and the jury instructions repeatedly

referred to violations of “professional norms”. Judge

Wilkinson expressed concern as to how the expert testimony

and the jury instructions interlocked seamlessly around a

violation of “professional norms”. Judge Wilkinson observed

that Congress did not express the critical element of proof

for the jury as “a reasonable physician” standard or as “a

violation of professional norms.” Congress said ‘Outside the

course of professional practice” (emphasis supplied).

1. The Circuit’s decision upholding the conviction seemed quite

at odds with the colloquy had at oral argument. The recording of

that argument is available and Petitioner will make same available

at the Court’s request.

Judge Wilkinson asked the prosecution if what Congress

prescribed “wasn’t something textually different from a norm

of professional practice?” Judge Wilkinson asked, doesn’t

“outside the course of’ mean “you just shuck professional

practice to one side” and “set yourself up as a drug dealer”

and put all your medical training to one side? Judge

Wilkinson asked the prosecution if there wasn’t a difference

between “professional norms” and “outside the course of

professional practice”? The prosecution responded that there

was “a difference.” And there most certainly was.

No jury instruction was given in Petitioner Mclver’s case

that could cure the deathly combination of the government’s

expert testimony and the trial court’: repeated reference in

its jury instructions to “the norms of professional practice.”

J.A. 1293. The trial court specifically invited the jury, when

ascertaining guilt or innocence, to “consider the testimony

you have heard relating to what has been characterized during

the trial as the norms of professional practice.” /d. The

defense objected in writing to this inapt reference in the

instructions. J.A. 1302. Trial counsel suggested curative and

clarifying language that was rejected by the Court, and trial

counsel explained to the trial court that the instruction

wrongly stated “if Dr. McIver violated the medical norms,

then he is guilty of the criminal violations.” J.A. 1302.

Trial counsel told the court that “[s]imply because a

majority or overwhelming majority of physicians believe a

procedure or technique wrong, does not mean that it is outside

the bound of medical practice” (emphasis supplied)

J.A. 1303, 1320-1322.

Nor could this error be found harmless by any fair

analysis, as the only counts that resulted in conviction were

those that were the subject of the government expert’s

testimony, who set forth what were “the norms of professional

conduct”; the prosecutor himself underscored this fact to the

trial court when court and counsel were trying to understand

how the jury convicted Dr. McIver as to some patients but

not others. J.A. 1326-1327.

Gonzales v. Oregon, 546 U.S. 243, 126S. Ct. 904 (2006)

considered the Attorney General’s reach under the Controlled

Substances Act and concluded that the Congress had granted

the Attorney General a limited role, and authority that did

not encompass defining or re-defining the substantive

standards of medical practice in administrative guidelines.

What we have here is as egregious as the government’s

excesses in Gonzales in that the Executive Branch, by its

Attorney General, is here re-defining the permissible

standards of medical practice but not by its administrative

guidelines, rather by its expert witness at trial, and by

“norms” that are “within” and not “outside” the course of

professional medical practice.

When federal prosecutors told a federal district judge

that it was their business to determine what constituted

“appropriate” medical practices (in connection with assisted

suicide), the federal district court denounced their arrogance:

Federal prosecutors have never possessed

such powers, and the vagueness of the [statutory]

reference would render any alleged violation

based on a prosecutor’s subjective views about

medical practice patently unenforceable.

Oregon v. Ashcroft, et al, 192 F. Supp. 2d 1077, 1090

(D. Oregon 2002).

Justice Kennedy, writing for a majority of this Court in

Gonzales said that the Attorney General enjoys no medical

expertise, nor authority over medical standards. Id., at 922.

Justice Kennedy expressed a prescient concern in Gonzales

that, if the Attorney General were free to make medical

judgments, then those that he “could make [would not be]

limited to physician-assisted suicide.” Gonzales v. Oregon,

supra, at 921.

According to this Court, “Congress regulates medical

practice insofar as it bars doctors from using their

prescription-writing powers as a means to engage in illicit

drug dealing and trafficking as conventionally understood”

but, beyond this, “the statute manifests no intent to regulate

the practice of medicine generally.” Gonzales v. Oregon,

supra, at 923.

The rationale for the Supreme Court’s decision in

Gonzales was simple: the federal government had to defer

to the States’ “great latitude under the police powers to

legislate as to the protection of the lives, limbs, health,

comfort, and quiet of all persons.” /d.

No Attorney General may therefore bar a medical use

that is at variance or “inconsistent” with another’s

“reasonable understanding of medical practice.” Gonzales v.

Oregon, supra, at 924.

Thus did the Supreme Court refuse “to effect a radical

shift of authority from the States to the Federal Government

to define general standards of medical practice in every

locality.” Gonzales v. Oregon, supra, at 925.

Justice Kennedy reaffirmed what the lower court had

said, that, if the Attorney General enjoyed this authority to

criminalize what it saw fit, then it would enjoy the

“unrestrained” power to criminalize “the conduct of

registered physicians whenever they engage in conduct he

[the AG] deems illegitimate.” Jd., at 920.

In this proceeding, the government’s expert witness, Mr.

Storick, was the government’s agent defining in real time,

and during the trial, its most recently enunciated standard

for the jury, based on the bias of Dr. Storick’s settled habits

but “within” the “bounds of professional medical practice”.

The trial court invited the jury to “consider the extent to

which, if at all, any violation of professional norms you find

to have been committed by the defendant interfered with his

treatment of his patients and contributed to an over

prescription and/or excessive dispensation of controlled

substances” (underscoring supplied).

These errors as to the proper standard, by expert witness

and jury instruction, contravened this Court’s holding in

Moore and fundamental notions of due process.

CONCLUSION

Petitioner respectfully urges this Court to grant the

petition for a writ of certiorari.

Respectfully submitted,

JOHN P. FLANNERY, Il

CAMPBELL MILLER ZIMMERMAN, PC

19 East Market Street

Leesburg, VA 20176

(703) 771-8344

Attorneys for Petitioner

APPENDIX

APPENDIX A — OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT

DECIDED DECEMBER 5, 2006

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT |

No. 05-4884

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

RONALD A. McIVER,

Defendant-Appellant,

and

ALL OUT BAIL BONDING;

GIGGIES BONDING COMPANY,

Parties in Interest.

Argued: September 21, 2006

Decided: December 5, 2006

OPINION

DUNCAN, Circuit Judge:

The field of pain management has generated controversy

because of its reliance on opiate-based pain medications

(opioids), which are also a target of the government’s war

on drugs. See Diane E. Hoffmann & Anita J. Tarzian,

Appendix A

Achieving the Right Balance in Oversight of Physician

Opioid Prescribing for Pain: The Role of State Medical

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

government has recently become more aggressive in

prosecuting doctors who unlawfully distribute opioids and

other prescription drugs under the guise of legitimate medical

practice. See United States v. Hurwitz, 459 F.3d 463 (4th

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

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

Cir.2006); United States v. Alerre, 430 F.3d 681 (4th

Cir.2005). The charges against Dr. Ronald A. Mclver

(“Appellant”) arose from his prescription of pain medications

to patients at a pain clinic. He appeals his conviction for

various counts of unlawful distribution of a controlled

substance, unlawful distribution of a controlled substance

resulting in death, and conspiracy to unlawfully distribute a

controlled substance. For the reasons that follow, we affirm.

Appellant is a doctor of osteopathic medicine' who was

licensed to prescribe controlled substances under the

Controlled Substances Act, 21 U.S.C. § 801 et seg. He

1. “A doctor of osteopathic medicine (D.O.) is a physician

licensed to perform surgery and prescribe medication.” MedlinePlus

Medical Encyclopedia: Doctor of Osteopathy (D.O.), http:// www.

nlm. nih. gov/ medlineplus/ency/article/002020.htm. Osteopaths

differ from doctors of medicine (“M.D.”) in that they reccive

specialized training in “hands-on manual medicine and the body’s

musculoskeictal system,” and are “dedicated to treating and healing

the entire patient as a whole, rather than focusing on one system or

body part.” Jd. In practice, however, the roles of D.O.’s and M.D.’s

are often identical.

Appendix A

operated a medical clinic in Greenwood, South Carolina that

specialized in treating chronic pain. The United States Drug

Enforcement Administration (“DEA”) began investigating

Appellant in 2002 after receiving information about his

prescribing practices from the Columbia, South Carolina police

department. J.A. 682-83. During its investigation, the DEA

discovered that Appellant had prescribed massive quantities of

oxycodone,’ Dilaudid,* OxyContin,*> methadone,° and morphine’

to his patients. J.A. 687-88. The investigation also uncovered a

disturbing pattern among Appellant’s patients. These patients

included admitted drug addicts who traveled significant

distances to see him, appeared without referrals, paid in cash,

2. Our citations to “J.A. ” refer to the contents of the Joint

Appendix filed by the parties in this appeal.

3. Oxycodone is a potent and addictive opioid that is classified

as a Schedule II drug under the Controlled Substances Act. See 21

U.S.C. § 812 (2000); 2] C.F.R. § 1308.12(b)(1) (2004). It is marketed

in instant-release form under trade names such as Roxicodone,

Roxicet, OxyIR, and OxyFAST, and in a controlledrelease form as

OxyContin.

4. Dilaudid is the trade name for a medication that contains

hydromorphone, a potent and addictive opioid that is classified as a

Schedule II narcotic. § 1308.12(b)(1).

5. OxyContin is the trade name of a controlled-release form of

oxycodone that can be crushed to circumvent the time-release

mechanism and then taken either nasally or intravenously.

6. Mcthadone is a potent and addictive synthetic opioid that is

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

Schedule II narcotic. § 1308.12(b)(1).

7. Morphine is one of the most powerful and addictive opioids.

It is classified as a Schedule II narcotic. § 1308.12(b)(1).

Appendix A

and sought specific drugs which were prescribed for them based

on little or no physical examination.

The government indicted Appellant on fifteen counts

related to his treatment of ten patients, nine of whom testified

for the government at trial. The remaining patient, Larry

Shealy, was deceased; his death formed the basis of two

counts of the indictment.

After trial, the jury convicted Appellant of one count of

conspiracy to distribute controlled substances unlawfully in

violation of 21 U.S.C. § 846 (2000) (Count 1), six counts of

unlawful distribution of a controlled substance in violation

of 21 U.S.C. § 841(a)(1) (2000) (Counts 3-5, 13-15), and

two counts of unlawful distribution of a controlled substance

resulting in the death of Larry Shealy in violation of

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

sentenced Appellant to 240 months on Counts 1, 3, 4, 5, 13,

14, and 15, and 360 months on Counts 11 and 12, to run

concurrently. Appellant timely appealed.

We turn now to a consideration of the facts relevant to

this appeal, beginning with those involving the six patients

whose experiences underlie Appellant’s convictions. In the

context of Appellant’s challenges to the sufficiency of the

evidence, we recite those facts in the light most favorable to

the government. United States v. Rahman, 83 F.3d 89, 93

(4th Cir.1996). We then discuss the testimony of the

government’s expert witness, Dr. Steven Storick, and the

district court’s jury instruction on the § 841(a)(1) charges.

8. McIver was acquitted of all char ges relating to four patients,

identified as “A,” “E,” “F,” and “G” in the indictment. J.A. 15-20.

Appendix A

A. Larry Shealy

Larry Shealy sought treatment from Appellant for back

and knee pain. J.A. 416. Appellant treated Shealy almost

exclusively with large quantities of various simultaneous

combinations of morphine, Oxycontin, oxycodone, and

methadone. J.A. 526. Shealy’s son, who accompanied his

father to many of his appointments, only observed his father

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

Shealy’s son testified that after Shealy started seeing

Appellant, his father’s demeanor changed dramatically. J.A.

417-19. In addition to losing his appetite and weight, Shealy

became somnolent and irritable. J.A. 418. On one occasion,

Shealy backed his truck into a tree, apparently without

realizing he had done so. J.A. 417-18. These changes so

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

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

Appellant until he died from an oxycodone overdose.

J.A. 419-20, 427-30, 456. The level of drugs in Shealy’s

system when he died was consistent with the amounts —

Appellant prescribed. J.A. 427-30.

A representative of the company that provided Shealy

health insurance testified that the amount and cost of the

drugs prescribed to Shealy, along with the frequency of

dosage, “was as high as [he had] ever seen.” J.A. 134-35.

The representative became so concerned about Shealy’s

prescriptions that he contacted the DEA. J.A. 134.

Appendix A

B. Barbee Brown

Barbee Brown sought treatment from Appellant primarily

for reflex sympathetic dystrophy, a chronic neurological

condition that causes severe pain. J.A. 518-19. Appellant

knew from the outset that Brown had a history of prescription

drug and cocaine abuse. J.A. 207-08, 519. He nevertheless

prescribed OxyContin, oxycodone, and, later, methadone in

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

Appellant also allowed Brown to manage her own dosing

without specifying a maximum amount. J.A. 208. Brown’s

father wrote to Appellant to express concern about his

daughter’s treatment, stating that, since coming to see

Appellant, Brown had been in a “drug state,” “unstable in

her speech and hajd} threatened to kill” her father. J.A. 233,

520. Appellant continued prescribing opioids to Brown,

however, maintaining that, if anything, her dose was too low.

J.A. 521.

Appellant stopped treating Brown abruptly after less than

two months when her insurance stopped covering his care.

jJ.A. 211. He took no steps to wean her from the opioids,

however, and she was hospitalized for four days with severe

drug withdrawal symptoms. J.A. 211-12.

C. Leslie Smith

Leslie Smith sought treatment from Appellant

specifically to obtain prescription painkillers. J.A. 176. Smith

traveled sixty miles each way to see Appellant after learning

that he had readily prescribed drugs to one of Smith’s friends.

J.A. 175-76. Smith testified that he lied to Appellant about

Appendix A

pain in his wrist, but that Appellant prescribed high doses of

OxyContin and Dilaudid, the drugs that Smith requested,

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

admitted that he was a drug addict and injected these drugs

to satisfy his habit. J.A. 176. Evidence indicates that

Appellant was aware of Smith’s drug use; Appellant

discovered a syringe in Smith’s possession during a visit,

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

prescribe Smith’s drugs. J.A. 185.

Appellant eventually became sufficiently suspicious that

Smith was either using or selling his medications to write to

the South Carolina Department of Health and Environmental

Control to express those concerns. J.A. 180-81, 684.

Appellant, however, continued prescribing drugs to Smith

after writing the letter. J.A. 181-82.

D. Seth Boyer

Like Smith, Seth Boyer learned of Appellant from friends

and began traveling more than an hour to see him specifically

to obtain prescription drugs. J.A. 248, 250-51. Boyer came

to his first appointment with Appellant with track marks on

his arms from intravenous drug use. J.A. 250-51, 253. Boyer

complained of pain in his foot, but, as with Smith, Appellant

did not x-ray it before prescribing OxyContin, OxyFast, and

Dilaudid. J.A. 249-50, 253. Boyer both used and sold these

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

about spilling a bottle of liquid oxycodone, and Appellant

refilled the prescription immediately. J.A. 255.

Appendix A

E. Kyle Barnes

Kyle Barnes started seeing Appellant for treatment of

fibromyalgia, a chronic condition characterized by

widespread pain and stiffness, after her former -provider was

closed by the government because of its prescribing practices.

J.A. 347. When Appellant first began treating her, Barnes

was addicted to oxycodone. J.A. 346. Even though Barnes

was poor and receiving Medicaid, she traveled nearly three

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

prescriptions for thousands of dollars worth of medications.

J.A. 350, 353, 359, 530.

Appellant prescribed Barnes massive doses of

methadone, OxyContin, oxycodone and morphine in various

simultaneous combinations. J.A. 354, 356, 529. In one year,

Appellant prescribed Barnes 20,562 individual doses of

various medications. J.A. 687. Appellant continued to

prescribe methadone even after Barnes told him that she could

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

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

Evidence supports an inference that Appellant knew

Barnes was not taking her medicine as prescribed. At one

point after Appellant had prescribed Barnes high doses of

opioids for a number of months, she reported running out of

her medications. J.A. 530-31. She did not, however, report

any of the withdrawal symptoms commonly associated with

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

Appendix A

F. Angela Knight

Angela Knight sought treatment from Appellant for

chronic back pain after her previous pain clinic was shut

down for its prescribing practices. J.A. 388-89. Even though

she lived closer to other pain clinics, Knight traveled nearly

two-and-one-half hours to see Appellant. J.A. 392, 542. He

treated Knight with high doses of OxyContin, along with

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

As with other of Appellant’s patients, evidence suggested

that Knight was not taking her medicine as prescribed. For

example, at her former pain clinic, Knight twice tested

negative for opioids despite being prescribed OxyContin at

the time. J.A. 537-38. Even though her medical records

revealed this fact, on her first visit to him, Appellant doubled

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

Thereafter, Appellant continued to prescribe high and

escalating doses of opioids for Knight after his office

conducted two similar drug tests that detected no opioids in

her system. J.A. 538, 542.

On other occasions, Knight tested positive for opioids,

indicating that she was, in fact, taking her medications. J.A.

539-40. Knight eventually became addicted to the

medications that Appellant prescribed and suffered

significant withdrawal when she stopped taking them. J.A.

397.

10a

Appendix A

G. Dr. Steven Sorick’s Testimony

At trial, the government offered testimony from Dr.

Steven Storick (“Dr.Storick”), an anesthesiologist qualified

as an expert in pain management. Based on his review of

certain patient records, Dr. Storick concluded that the

treatment of several of Appellant’s patients fell outside the

parameters of legitimate medical practice.

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

that there was “no legitimate reason to be prescribing”

combinations of opioids in such high doses based on the

patient’s medical conditions. J.A. 527. Similarly, given

Brown’s history of drug abuse, Storick testified that

Appellant’s treatment went “outside the course of legitimate

medical practice,” and was “like pouring gasoline onto a fire.”

JA. S23.

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

to treat fibromyalgia with the amount and type of medication

Appellant prescribed. J.A. 533. Indeed, he testified that

Appellant’s treatment of her “was one of the worst cases [he

had] seen” and that “it was way outside the course of

legitimate medical treatment.” J.A. 534. In response to

questions about Ms. Knight, Dr. Storick testified that it was

outside the legitimate practice of medicine for Appellant to

prescribe high doses of opioids given her history of negative

drug screens. J.A. 542-43.

Dr. Storick was subjected to rigorous cross-examination

regarding varying theories of pain management, and

acknowledged differences in points of view as to appropriate

lla

Appendix A

levels of pain medication. J.A. 576-80. He was also

challenged as to, and defended his opinions regarding,

Appellant’s treatment of specific patients.

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

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

Appellant knowingly or intentionally distributed a controlled

substance; (2) with knowledge that it was controlled under

the law; and (3) that he did so “outside the usual course of

professional practice.” United States v. Moore, 423 U.S. 122,

124, 96 S.Ct. 335, 46 L.Ed.2d 333 (1975); see also United

States v. Tran Trong Cuong, 18 F.3d 1132, 1137 (4th

Cir.1994) (setting out elements of § 841(a)(1) charge). With

respect to the third element-the only one challenged by

Appellant on appeal-the district court instructed the jury

extensively prior to its deliberations.’

9. The court instructed the jury in relevant part as follows:

There are no specific guidelines concerning what

is required to support a conclusion that a defendant

physician acted outside the usual course of professional

practice and for other than a legitimate medical purpose.

In making a medical judgment concerning the right

treatment for an individual patient, physicians have

discretion to choose among a wide range of options.

Therefore, in determining whether a defendant acted

without a legitimate medical purpose, you should

examine all of a defendant’s actions and the

circumstances surrouncing the same.

If a doctor dispenses a drug in good faith, in

medically treating a paticnt, then the doctor has

(Cont'd)

12a

Appendix A

(Cont'd)

dispensed that drug for a legitimate medical purpose in the

usual course of medical practice. That is, he has dispensed

the drug lawfully.

Good faith in this context means good intentions, and

the honest exercise of professional judgment as to the

patient’s needs. It means that the defendant acted in

accordance with what he reasonably believed to be proper

medical practice. If you find that a defendant acted in good

faith in dispensing the drags charged in this indictment,

then you must find that defendant not guilty.

For you to find that the government has proven this

essential element, you must determine that the government

has proven beyond a reasonable doubt that the defendant

was acting outside the bounds of professional medical

practice, as his authority to prescribe controlled substances

was being uscd not for treatment of a patient, but for the

purpose of assisting another in the maintenance of a drug

habit or dispensing controlled substances for other than a

legitimate medical purpose, in other words, the personal

profit of the physician.

Put another way, the government must prove as to

each count beyond a reasonable doubt that the defendant

dispensed the specific controlled substance other than for

a legitimate medical purpose and not with the bounds of

professional medical practice.

A physician’s own methods do not themselves

establish what constitutes medical practice. In

determining whether the dcfendant’s conduct was within

the bounds of professional practice, you should, subject

(Cont'd)

l3a

Appendix A

(Cont'd)

to the instructions I give you concerning the credibility

of experts and other witnesses, consider the testimony

you have heard relating to what has been characterized

during the trial as the norms of professional practice.

You should also consider the extent to which, if at

all, any violation of professional norms you find to have

been committed by the defendant interfered with his

treatment of his patients and contributed to an over

prescription and/or excessive dispensation of controlled

substances. You should consider the defendant’s actions

as a whole and the circumstances surrounding them. A

physician’s conduct may constitute a violation of

applicable professional regulations as well as applicable

criminal statutes. However, a violation of a professional

regulation does not in and of itself establish a violation

of the criminal law. As I just indicated, in determining

whether or not the defendant is guilty of the crimes with

which he is charged, you should consider the totality of

his actions and the circumstances surrounding them and

the extent and severity of any violations of professional

norms you find he committed... . .

There has been some mention in this case from time

to time of the standard of care. During the trial the words

medical malpractice may have been used. Those words

relate to civil actions. When you go to sec a doctor, as a

patient, that doctor must treat you in a way so as to meet

the standard of care that physicians of similar training

would have given you under the same or similar

circumstances. And if they fall below that linc or what a

reasonable physician would have done, then they have

not exercised that standard of care, which makes them

(Cont'd)

14a

Appendix A

II.

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

instructions on the § 841(a)(1) charges improperly lowered

the government’s burden of proof; (2) Dr. Storick’s expert

testimony constituted inadmissible legal opinions; (3) the

district court erred in excluding evidence from Appellant’s

expert witness, Dr. Thomas Duc; and (4) there was

insufficient evidence to support each of his convictions. We

consider each argument in turn.

Appellant first argues that by referring to “norms of

professional practice” in the jury instructions, the district

court improperly allowed the jury to convict on a civil, rather

than a criminal, standard of proof. We review the accuracy

and adequacy of jury instructions de novo, United States v.

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

(Cont'd)

negligent and which subjects themselves to suits for

malpractice.

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

talking about this physician acting better or worse than

other physicians. We’re talking about whether or not this

physician prescribed a controlled substance outside the

bounds of his professional medical practice.

J.A. 1291-96.

lSa

Appendix A

a conviction so long as “the instructions, taken as a whole,

adequately state the controlling law,” United States v. Wills,

346 F.3d 476, 492 (4th Cir.2003) (emphasis added). Because

we find that the district court’s instructions as a whole

adequately articulated a criminal standard of proof, we find

no error.

The potential for juries to confuse the civil standard of

care applied in medical malpractice cases and the criminal

standard of proof applied in § 841(a)(1) prosecutions requires

courts to exercise care in setting out the governing standard

in the latter circumstance.'? We have previously considered

the proper relationship between the standards in two

decisions that are relevant to our analysis here, even though

neither involved a direct challenge to the propriety of

§ 841(a)(1) jury instructions.

In Tran Trong Cuong, we addressed a sufficiency of the

evidence challenge by Tran, a physician also indicted under

§ 841(a)(1). Tran’s argument in part was that the district court

erroneously applied a civil negligence, rather than a criminal,

standard of proof during trial. 18 F.3d at 1137. While

acknowledging that the district court had, during trial,

10. In Alerre we pointed out that, “[i]n contrast to the criminal

standard, a medical malpractice plaintiff in South Carolina must show

in a civil case (1) ‘the generally recognized practices and procedures

that would be exercised by competent practitioners in a defendant

doctor’s field of medicine under the same or similar circumstances,’

and (2) ‘that the defendant doctor departed from the recognized and

generally accepted standards, practices, and procedures.’ ” 430 F.3d

at 690 (citing Gooding v. St. Francis Xavier Hosp., 326 S.C. 248,

487 S.E.2d 596, 599 (1997)).

l6a

Appendix A

confused the two standards, we nevertheless concluded that

the court’s articulation of the criminal standard was correct

when it instructed the jury at the close of the case. /d. at

1137-38. The trial court made it clear in its jury charge that

the government must “prove beyond a reasonable doubt .. .

that the defendant prescribed the drug other than for [a]

legitimate medical purpose and not in the usual course of

medical practice.” /d. at 1137. It then recognized the broad

discretion afforded doctors, instructed the jury to consider

all of the defendant’s actions, and provided specific examples

of behavior that tended to denote illegitimacy, such as

prescribing drugs without performing physical examinations,

or asking patients about the amount or type of drugs they

want. Jd. at 1137-38. We held that these instructions

adequately articulated the government’s criminal burden of

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

Id. Indeed, we concluded that the jury instructions not only

captured the criminal standard, but arguably imposed a higher

burden on the government than set forth in Moore by

additionally requiring proof that Tran had written

prescriptions “without a legitimate medical purpose.” /d.

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

was infected with an erroneous standard of proof, we

approved instructions that largely mirrored those in 7ran

Trong Cuong but more fully developed “the distinction

between the civil standard and the criminal standard.” 430

F.3d at 691 n. 9. The district court in Alerre distinguished

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

necessary for a criminal conviction, and cautioned the jury

that “the critical issue ... was not whether the defendants

had acted negligently, but whether or not [they] prescribed a

17a

Appendix A

controlled substance outside the bounds of their professional

medical practice.” /d. (quotations omitted).

Significantly, we recognized in Alerre that merely

because standard-of-care evidence might show that a

physician contravened the civil standard, it need not be

categorically excluded from a criminal proceeding. /d. at 691.

To the contrary, “evidence that a physician consistently failed

to follow generally recognized procedures tends to show that

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

seller of wares.” /d. Similarly, we recognized that evidence

that a physician “deviated drastically from accepted medical

standards” is probative of criminal liability. /d.

With that guidance, we consider the challenge before

us, which specifically focuses on the district court’s jury

instructions. The thrust of Appellant’s argument is that the

district court erred in telling the jury to consider the extent

to which “any violation of professional norms you find to

have been committed by the defendant interfered with his

treatment of his patients and contributed to an over

prescription and/or excessive dispensation of controlled

substances.” J.A. 1293. Appellant specifically focuses on the

district court’s use of the phrase “norms of professional

practice.” However, after reviewing the jury instructions as

a whole, as we must, Wills, 346 F.3d at 492, we find multiple

reasons to conclude that the instructions here properly set

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

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

and Alerre, 430 F.3d at 687, the court below cabined both its

overall § 841(a)(1) instruction, as well as its specific

18a

Appendix A

instructions on the third element, within the requirement of

proof “beyond a reasonable doubt.” J.A. 1290, 1292. This

statement clearly articulated the proper criminal burden for

the government and precluded conviction on a lesser civil

standard of proof.

The court then properly defined the scope of unlawful

conduct under § 841(a)(1) by explaining that the government

had to prove that Appellant used “his authority to prescribe

controlled substances ... not for treatment of a patient, but

for the purpose of assisting another in the maintenance of a

drug habit or” some other illegitimate purposes, such as his

own “personal profit.” J.A. 1292; see Alerre, 430 F.3d at

690-91. This instruction set the proper threshold for

conviction by placing unlawful conduct beyond the bounds

of any legitimate medical practice, including that which

would constitute civil negligence. See Tran Trong Cuong,

18 F.3d at 1137; cf. Alerre, 430 F.3d at 690 (setting forth the

standard for medical malpractice in South Carolina). In other

words, the district court ensured that the jury could only

convict Appellant for conduct that was exclusively criminal

in nature.

Significantly, in order to satisfy this definition of

unlawful conduct, the district court required the prosecution

to prove, not only that Appellant acted “outside the course

of professional practice,” as required by Moore, 423 US. at

124, 96 S.Ct. 335, but also that he acted “ for other than a

legitimate medical purpose,” J.A. 1292 (emphasis added).

This additional requirement arguably benefitted Appellant

by placing an even heavier burden on the government than

19a

Appendix A

otherwise required to establish criminal liability. See Alerre,

430 F.3d at 690-91; Tran Trong Cuong, 18 F.3d at 1138.

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

430 F.3d at 691 n. 9, the court next stated that so long as

Appellant acted in good faith, he actea lawfully. J.A. 1291-

92; see 430 F.3d at 692, 18 F.3d at 1138. The significance of

this distinction is manifest: good faith is a defense to a charge

under § 841(a)(1), but not to a claim of medical malpractice.

See Hurwitz, 459 F.3d at 480 (“good faith generally is relevant

in a § 841 case against a registered physician”); Pleasants v.

Alliance Corp., 209 W.Va. 39, 49 n. 27, 543 S.E.2d 320

(2000) (collecting cases rejecting use of subjective good faith

jury instructions in medical malpractice actions). The

inclusion of a good faith instruction is therefore a plainspoken

method of explaining to the jury a critical difference between

the two standards.

Finally, the court instructed the jury on the difference

between civil and criminal violations. J.A. 1293. The court

indicated that “‘a violation of a professional norm does not

in and of itself establish a violation of [a] criminal law,” but

could support a conviction based on its “extent and severity.”

Id. While this instruction allowed the jury to consider civil

violations, it properly explained that such evidence is not

inexorably indicative of unlawfulness. See Alerre, 430 F.3d

at 691. The district court then concluded by describing the

concept of medical malpractice and the civil standard of care

before categorically stating that a criminal standard governed

resolution of this case.'! J.A. 1293-96 (“[Malpractice or

11. While not directly relevant to the distinction between a civil

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

(Cont'd)

20a

Appendix A

negligence] is not what we’re talking about .... We’re

talking about whether or not this physician prescribed a

controlled substance outside the bounds of his professional

medical practice.”).

These instructions, taken as a whole, set the proper

threshold for conviction, mandating application of a criminal

standard of proof and precluding conviction on a lower civil

standard. The fact that the district court may have invoked

language, taken in isolation, suggestive of a civil standard,

would not alone lower the government’s burden of proof.

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

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

standards or norms of care, since the third element of

§ 841(a)(1) requires a determination of whether the

defendant’s conduct is outside the usual course of

professional conduct.

The jury instructions here went further in defining the

yroper criminal standard and distinguishing it from the civil

standard than those which we approved, albeit in different

contexts, in both Tran Trong Cuong and Alerre. We therefore

find no error with the district court’s instructions.

(Cont’d)

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

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

its decision on all of Appcllant’s actions and the surrounding

circumstances. J.A. 1291. Appellant thus received the benefit of

court-sanctioned deference to his professional judgment.

2la

Appendix A

Appellant further argues that Dr. Storick’s testimony

combined with the instructions on the third element to lower

the government’s burden. At trial, Dr. Storick opined that

Appellant acted “outside the course of legitimate medical

practice,” “inappropriate[ly]” or “with no legitimate reason.”

J.A. 523, 527, 543. Appellant argues that the confluence of

this testimony and the court’s instructions regarding the

“norms of professional practice” effectively allowed the jury

to convict based on a civil standard of proof. We find this

argument unpersuasive for two reasonis.

First, as we recognized in Alerre and noted above,

evidence regarding a departure from a generally recognized

standard-of-care is not inherently impermissible. 430 F.3d

at 691. To the contrary, such evidence may support an

inference that a physician is acting as a dealer of drugs rather

than a provider of care.'? /d. Indeed, it is the extent and

severity of departures from the professional norms that

underpin a jury’s finding of criminal violations. See id.

(“[E]vidence that a physician consistently failed to follow

generally recognized procedures tends to show that in

prescribing drugs he was not acting as a healer but as a seller

of wares.”)

12. We entrust to the district court the task of ensuring that

such evidence is sufficiently constrained as to not confuse a jury.

See Fed.R.Evid. 403 (requiring cxclusion of confusing evidence);

Alerre, 430 F.3d at 691 n. 10 (noting that “undue emphasis on

standard-of-care evidence might, in certain circumstances, confuse

a jury.”). Based on the record before us, we find nothing improper

with the evidence admitted at trial.

22a

Appendix A

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

lower burden to the jury, the district court’s jury charge

negated any such testimony by articulating the proper

standard. Again, our decision in Tran Trong Cuong is

instructive. The district court there made statements at trial

that unambiguously indicated that a civil standard of proof

governed the case, commenting, for example, that the

governing standard was (1) “whether a reasonably prudent

physician would do it,” (2) “whether it is within the standard

of care of a family practitioner,” and (3), “like you use in a

civil case, whether [care was comparable to that provided]

in the usual course of treating a patient by the average family

practitioner.” 18 F.3d at 1137. We concluded, nonetheless,

that the satisfactory definition included in the jury

instructions cured the prior misstatements. Jd. at 1138. Such

a conclusion is consistent with our general presumption that

“a properly instructed jury [acts] in a manner consistent with

the instructions.” Alerre, 430 F.3d at 692; see Jones v. United

States, 527 U.S. 373, 394, 119 S.Ct. 2090, 144 L.Ed.2d 370

(1999) (“[JJurors are presumed to have followed ...

instructions.’’).

As discussed above, the district court here instructed the

jury that the government had to satisfy a criminal standard

of proof to convict Appellant. J.A. 1291-96. We presume

that the jury followed these instructions and ignored any

suggestion to the contrary. See Jones, 527 U.S. at 394, 119

S.Ct. 2090; Alerre, 430 F.3d at 692. We discern nothing in

the record that rebuts this presumption. Accordingly, we find

no error.

23a

Appendix A

Appellant next asserts error in the admission of

Dr. Storick’s expert testimony that Appellant treated certain

patients outside the course of legitimate medical practice.

Appellant argues that this testimony embraced inadmissible

legal conclusions. We review this argument for plain error

because Appellant did not object to the testimony at trial.

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

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

(2) which is plain, (3) which affects substantial rights, and

(4) which seriously affect[s] the fairness, integrity or public

reputation of judicial proceedings.’ ” Jd. (quoting United

States v. Brewer, 1 F.3d 1430, 1434 (4th Cir.1993))

(alterations in original). Because we conclude that Dr.

Storick’s testimony was admissible, there was no error and

Appellant cannot satisfy this standard.

Rule 704(a) allows the admission of expert testimony

that “embraces an ultimate issue to be decided by the trier of

fact.” Fed.R.Evid. 704(a). In other words, questions of fact

that are committed to resolution by the jury are the proper

subject of opinion testimony. /d. However, opinion testimony

that states a legal standard or draws a legal conclusion by

applying law to the facts is generally inadmissible.'?

13. We have previously recognized that in certain

circumstances, such as cases involving specialized industrics,

“eninion testimony that arguably states a legal conclusion is helpful

to the jury, and thus, admissible.” United States v. Barile, 286 F.3d

749, 760 n.7 (4th Cir.2002) (quoting Weinstein’s Federal Evidence

§ 704.04[2][a] (2d ed.2001)). Because we conclude that Dr. Storick’s

(Cont'd)

24a

Appendix A

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

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

Cir.1998). The line between a permissible opinion on an

ultimate issue and an impermissible legal conclusion is not

always easy to discern. Barile, 286 F.3d at 760. We identify

improper legal conclusions by determining whether “the

terms used by the witness have a separate, distinct and

specialized meaning in the law different from that present in

the vernacular.” Jd. For example, courts have held

inadmissible testimony that a defendant’s actions constituted

“extortion,” DiBella v. Hopkins, 403 F.3d 102, 121 (2d

Cir.2005); that a dog bite constituted “deadly force,” Miller

v. Clark County, 340 F.3d 959, 963 n. 7 (9th Cir.2003); that

defendants held a “fiduciary” relationship to plaintiffs,

Christiansen v. Nat’l Sav. & Trust Co., 683 F.2d 520, 529

(D.C.Cir.1982); and that a product was “unreasonably

dangerous,” Strong v. E.1. DuPont de Nemours Co., 667 F.2d

682, 685-86 (8th Cir.1981). Dr. Storick’s testimony, however,

does not involve terms with similar legal significance.

On the issue of whether Appellant acted “outside the

bounds of his professional medical practice and for other

than legitimate medical purposes,’ Tran Trong Cuong, 18

F.3d at 1137,'* Dr. Storick opined that Appellant’s treatment

(Cont'd)

testimony did not embrace improper Icgal conclusions, we need not

confront the question of whether his testimony falls under this

exception.

14. This issue is a question of fact that is entrusted to the jury,

see Tran Trong Cuong, 18 F.3d at 1137-38 (approving instructions

(Cont'd)

25a

Appendix A

of certain patients was either illegitimate or inappropriate.

J.A. 523, 527, 534, 541, 557-58. Although Dr. Storick used

terms similar to that which this court has employed to express

the underlying issue, none is sufficiently specialized to render

his testimony inadmissible. Rather, the language Dr. Storick

employed falls within the limited vernacular that is available

to express whether a doctor acted outside the bounds of his

professional practice.'* We conclude therefore that the district

court properly admitted Dr. Storick’s testimony and that

Appellant cannot establish plain error.

Appellant argues that the district court erred by excluding

testimony from his expert witness, Dr. Thomas Duc. During

direct examination, Appellant’s attorney asked Dr. Duc

whether a minority group of doctors who treat pain

aggressively with opioids acted “within the bounds of

medical practice.” J.A. 1085. The government raised an

objection to this testimony, which the district court sustained,

(Cont'd)

given to jury on this issue); United States v. Kaplan, 895 F.2d 618,

623-24 (9th Cir.1990) (treating issue as question for jury); Oregon

v. Ashcroft, 192 F.Supp.2d 1077, 1090 n. 15 (D.Or.2002) (recognizing

issue as a question of fact for jury), and, therefore, is the proper

subject of expert testimony, see Fed.R.Evid. 704(a).

15. We note as well that experts in Tran Trong Cuong and Alerre

testified similarly, and that the defendant in 7ran Trong Cuong relied

on the opinions of two physicians that his prescription practices were

“within the state of the art” or “the medical standard.” 430 F.3d at

686, 18 F.3d at 1135.

26a

Appendix A

on the grounds that it called for a legal conclusion. /d. Even

if the district court’s exclusion of this testimony were

improper, any such error was harmless because of the

examination that followed. See United States v. Pendergraph,

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

exclusion of evidence is harmless if it does not substantially

sway the judgment).

After the district court sustained the government’s

objection, Appellant’s attorney reworded his inquiry and

conducted, without objection, a thorough examination of

Dr. Duc’s opinions on various approaches to pain

management. J.A. 1085-88. This testimony was substantively

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

‘elicited through an unobjectionable, if somewhat more

cumbersome, line of questioning. Because of the similarity

between the two lines of inquiry, we conclude that any error

in the exclusion of the initial line of questioning did not sway

the jury and, therefore, was harmless.

Finally, Appellant argues that there was insufficient

evidence to support each of his convictions. A “‘jury’s verdict

must be upheld on appeal if there is substantial evidence in

the record to support it.” United States v. Wilson, 198 F.3d

467, 470 (4th Cir.1999). In making this determination, “we

view the evidence in the light most favorable to the

government and inquire whether there is evidence that a

‘reasonable finder of fact could accept as adequate and

sufficient to support a conclusion of a defendant’s guilt

beyond a reasonable doubt.’ ” Jd. (quoting United States v.

27a

Appendix A

Burgos, 94 F.3d 849, 862 (4th Cir.1996) (en banc)). We now

turn to an analysis of each claim.

|. Count 1, Conspiracy to Unlawfully Distribute a

Controlled Substance

Appellant argues that the government did not present

sufficient evidence on Count | to prove either that he entered

into an illicit agreement with his patients to distribute

controlled substances unlawfully or that he did so knowingly.

Proof of each was a necessary element of the conspiracy

charge against him. United States v. Cropp, 127 F.3d 354,

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

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

support each element.

With respect to the first element, “it is not necessary to

prove a formal agreement to establish a conspiracy in

violation of federal law; a tacit or mutual understanding

among or between the parties will suffice.” United States v.

Depew, 932 F.2d 324, 326 (4th Cir.1991). There was evidence

that many of Appellant’s patients were drug addicts who

sought treatment from him with the express purpose of

obtaining drugs and, further, that he prescribed drugs in

quantities greater than he had reason to believe, or that tests

revealed, his patients were using. See J.A. 134-35, 176, 248,

354, 356, 523, 527, 529, 533-34, 538-40, 543, 687. Viewed

in a light most favorable to the government, this evidence

supports a conclusion that Mclver tacitly agreed with his

patients to provide opioid prescriptions without legitimate

medical reasons for doing so.

28a

Appendix A

The government can-satisfy the knowledge requirement

by showing either that Appellant actually knew of the

conspiracy, Cropp, 127 F.3d at 361, or that he was willfully

blind to it by “purposely clos[ing] his eyes to avoid knowing

what was taking place around him.” United States v. Ruhe,

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

Schnabel, 939 F.2d 197, 203 (4th Cir.1991)). The government

presented a plethora of evidence that demonstrates that

Appellant either knew of the conspiracy, or, at the very least,

was willfully blind to the unlawfulness of his actions.

Testimony showed that Appellant consistently prescribed

large quantities of opioids despite warning signs that his

patients were not using their medications as prescribed, were

seeking his treatment specifically to obtain drugs, or were

drug addicts. See J.A. 177-78, 180-82, 185, 207-08, 233, 250-

51, 253, 350, 353, 359, 390, 392, 518-23, 530-31, 538, 542.

Indeed, Appellant continued prescribing medication to one

patient after she repeatedly told him that she could not take

it, J.A. 356; to another after developing sufficient concern

that the patient was selling his medication to contact state

officials, J.A. 180-81; and to yet another after finding a

syringe in his possession, J.A. 185. Evidence also revealed

instances in which Appellant failed to conduct even the most

basic diagnostic testing before prescribing opioids. See J.A.

184, 249. Taken together, this evidence supports either of

two alternate conclusions: that Appellant had actual

knowledge that he was prescribing drugs for non-medical

purposes or that he was willfully blind to his patient’s true

motives in seeking his care. Either circumstance establishes

Appellant’s knowledge of the conspiracy.

29a

Appendix A

On this record, we conclude that the government

presented sufficient evidence to satisfy both the agreement

and knowledge elements of the conspiracy charge.

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

Controlled Substance

Appellant challenges the sufficiency of the evidence on

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

prescribed substances “outside the usual course of

professional practice.” '° See Alerre, 430 F.3d at 690 (quoting

Moore, 423 U.S. at 124, 96 S.Ct. 335).

However, the evidence demonstrated that McIver freely

distributed prescriptions for large amounts of controlled

substances that are highly addictive, difficult to obtain, and

sought after for nonmedical purposes. J.A. 134-35, 176, 180-

83, 248, 251, 253, 255, 346, 354-56, 388-90, 518-23, 526,

529, 538-40. For one patient, he prescribed more than 20,000

pills in a single year. J.A. 687. He prescribed drugs to patients

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

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

dru, addicts who sought treatment from him specifically to

obtain controlled substances to use or to sell. J.A. 176, 248,

251, 253, 346, 356, 359. That Appellant knew or suspected

his patients of drug abuse is reflected by the fact that he wrote

to state authorities to express concern that his patients might

be selling their medications. J.A. 126, 180-81. Appellant

. exercised minimal medical oversight of his patients’ dosing

practices. J.A. 184, 208, 249, 351, 416-17. He ignored

16. Appellant does not contest the evidence as to either of the

first two elements.

30a

Appendix A

evidence of the danger of prescribing drugs to certain

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

abuse of still others. J.A. 177-78, 180-82, 185, 207-08, 233,

250-51, 253, 350, 353, 359, 390, 392, 518-23, 530-31, 538,

542. After several of Appellant’s patients stopped seeing him,

they suffered significant drug withdrawal effects, at least in

one instance requiring hospitalization. J.A. 211-12, 397.

Dr. Storick testified at length about the extent to which

Appellant’s procedures went beyond the parameters of

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

This evidence amply supports a finding that MclIver’s

actions went beyond the legitimate practice of medicine and

were “no different than [those of] a large-scale pusher,

Tran Trong Cuong, 18 F.3d at 1138, and is thus sufficient to

support each of MclIver’s § 841(a)(1) convictions.

3. Counts 11 & 12, Unlawful Distribution of a

Controlled Substance Resulting in Death

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

to establish that McIver unlawfully distributed drugs to

Shealy that resulted in his death. § 841(b)(1)(C). McIver

argues only that the government did not present sufficient

evidence to demonstrate that Shealy died from the drugs that

he prescribed. Again, we disagree.

Both the pathologist who conducted Shealy’s autopsy

and the forensic toxicologist who examined his bodily fluids

testified that Shealy died as a result of an oxycodone

overdose. J.A. 419-20, 427-30, 456. The pathologist further

testified that the amount of oxycodone in his system at the

31a

Appendix A

time of death was consistent with the amount prescribed by

Mclver. J.A. 427-30. This testimony is sufficient to support

Mclver’s conviction on Counts 11 and 12.

HT.

In light of the foregoing, each of Mclver’s convictions

AFFIRMED.

32a

APPENDIX B — JUDGMENT OF THE UNITED

STATES DISTRICT COURT FOR THE DISTRICT OF

SOUTH CAROLINA DATED SEPTEMBER 14, 2005

UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH CAROLINA

UNITED STATES OF AMERICA

vs.

RONALD MCIVER

JUDGMENT IN A CRIMINAL CASE

(For Offenses Committed On or After November 1, 1987)

Case Number: 8:04-745 (1)

US Marshal’s Number: //764-/7]

C. Rauch Wise

Defendant’s Attorney

THE DEFENDANT:

@ was found guilty on count(s) /, 3, 4,5, 1/, 12, 13, 14 and

15 on April 19, 2005 after a plea of not guilty. Accordingly,

the court has adjudicated that the defendant is guilty of the

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34a

Appendix B

The defendant is sentenced as provided in pages 2 through 5

of this judgment. The sentence is imposed pursuant to the

Sentencing Reform Act of 1984.

@ The defendant has been found not guilty on count(s) 2, 6,

7,8,9 and 10

IT IS ORDERED that the defendant shall notify the United

States Attorney for this district within 30 days of any change of

name, residence, or mailing address until all fines, restitution,

costs, and special assessments imposed by this judgment are

fully paid. If ordered to pay restitution, the defendant shall notify

the court or United States attorney of any material change in

the defendant’s economic circumstances.

August 26, 2005

Date of Imposition of Judgment

s/ Henry FE Floyd

Signature of Judicial Officer

Henry F. Floyd, United States District Judge

Name and Title of Judicial Officer

September 14, 2005

Date

35a

Appendix B

IMPRISONMENT

The defendant is hereby committed to the custody of the

United States Bureau of Prisons to be imprisoned for a total

term of 360 months. This term consists of 20 years (240 months)

as to Counts 1, 3, 4, 5, 13, 14 and 15 and 360 months as to

Counts 11 and 12, all such terms to run concurrently.

* * *

@ The defendant is remanded to the custody of the United States

Marshal.

ee a

SUPERVISED RELEASE

Upon release from imprisonment, the defendant shall be

on supervised release fora term of 5 years. This term

consists of 5 years as to counts 1, 3, 4, 5, 11, 12, 13, 14 and 15,

all such terms to run concurrently.

1) The defendant shall participate in a program for mental

health treatment as directed by the probation officer,

until such time as the defendant is released from the

program by the probation officer.

The defendant shall report to the probation office in the district

to which the defendant is released within 72 hours of release

from the custody of the Bureau of Prisons.

The defendant shall not commit another federal, state, or local

crime.

The defendant shall not illegally possess a controlled substance.

36a

Appendix B

For offenses committed on or after September 13, 1994:

The defendant shall refrain from any unlawful use of a

controlled substance. The defendant shall submit to one drug

test within 15 days of release from imprisonment and at least

two periodic drug tests thereafter.

* * *

™@ The defendant shall not possess a firearm, destructive

device, or any other dangerous weapon.

ie a

If this judgment imposes a fine or a restitution obligation, it

shall be a condition of supervised release that the defendant

pay any such fine or restitution that remains unpaid at the

commencement of the term of supervised release in

accordance with the Schedule of Payments set forth in the

Criminal Monetary Penalties sheet of this judgment.

The defendant shall comply with the standard conditions that

have been adopted by this court (set forth below). The

defendant shall also-comply with any additional conditions

on the attached page.

STANDARD CONDITIONS OF SUPERVISION

the defendant shall not leave the judicial district without

the permission of the court or probation officer;

the defendant shall report to the probation officer and

shall submit a truthful and complete written report within

the first five days of each month;

the defendant shall answer truthfully all inquiries by the

probation officer and follow the instructions of the

probation officer; .

the defendant shall support his or her dependents and

meet other family responsibilities;

37a

Appendix B

the defendant shall work regularly at a lawful occupation

unless excused by the probation officer for schooling,

training, or other acceptable reasons;

the defendant shall notify the probation officer at least

ten days prior to any change in residence or employment;

the defendant shall refrain from excessive use of alcohol

and shall not purchase, possess, use, distribute, or

administer any controlled substance or any paraphernalia

related to controlled substances, except as prescribed by

a physician;

the defendant shall not frequent places where controlled

substances are illegally sold, used, distributed, or

administered;

the defendant shall not associate with any persons

engaged in criminal activity, and shall not associate with

any person convicted of a felony unless granted

permission to do so by the probation officer;

10) the defendant shall permit a probation officer to visit

him or her at any time at home or elsewhere and shall

permit confiscation of any contraband observed in plain

view by the probation officer;

11) the defendant shall notify the probation officer within

seventy-two hours of being arrested or questioned by a

law enforcement officer,

12) the defendant s*a‘i mot enter into any agreement to act

as an informer cr a special agent of a law enforcement

agency without the permission of the court;

13) as directed by the probation officer, the defendant shall

notify third parties of risks that may be occasioned by

the defendant’s criminal record or personal history or

characteristics, and shall permit the probation officer to

make such notifications and to confirm the defendant’s

compliance with such notification requirement.

38a

Appendix B

CRIMINAL MONETARY PENALTIES

The defendant will make all checks and money orders

payable to the “Clerk, U.S. District Court”

unless otherwise directed by the court.

The defendant shall pay the following total criminal

monetary penalties in accordance with the schedule of

payments set forth on Sheet 5, Part B.

Assessment

Totals: $ 900.00

If the defendant makes a partial payment, each payee shall

receive an approximately proportioned payment unless

specified in the priority order or percentage payment column

below. However, pursuant to 18 U.S.C. § 3664(8), all

nonfederal victims must be paid in full prior to the United

States receiving payment.

* * *

39a

Appendix B

SCHEDULE OF PAYMENTS

Having assessed the defendant’s ability to pay, payment of

the total criminal monetary penalties shall be due as follows:

A @ Lump sum payment of $ 900.00 special assessment

due immediately.

Unless the court has expressly ordered otherwise in the

special instructions above, if this judgment imposes a period

of imprisonment, payment of criminal monetary penalties

shall be due during the period of imprisonment. All criminal

monetary penalties, except those payments made through the

Federal Bureau of Prisons’ Inmate Financial Responsibility

Program, are made to the clerk of court, unless otherwise

directed by the court, the probation officer, or the United

States attorney.

The Defendant shall receive credit for all payments

previously made toward any criminal monetary penalties

imposed.

Payments shall be applied in the following order:

(1) assessment, (2) restitution principal, (3) restitution

interest, (4) fine principal, (5) community restitution, (6) fine

interest, (7) penalties, and (8) costs, including cost of

prosecution and court costs. |

40a

APPENF. 1X C — ORDER OF THE UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT

LeNYING PETITION FOR REHEARING

FILED JANUARY 3, 2007

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-4884

CR-04-745

UNITED STATES OF AMERICA

Plaintiff - Appellee

RONALD A. MCIVER

Defendant - Appellant

and

ALL OUT RAIL BONDING;

GIGGIES BONDING COMPANY

Parties in Interest

On Petition for Rehearing En Banc

The appellant’s petition for rehearing en banc was

submitted to this Court. As no member of this Court requested

a poll on the petition for rehearing en banc,

4la

Appendix C

[IT IS ORDERED that the petition for rehearing en banc

is denied.

Entered for a panel composed of Judge Wilkinson, Judge

Duncan, and Judge Voorhees.

For the Court

/s/ Patricia S. Connor

CLERK

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.