NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 16-3814
UNITED STATES OF AMERICA
v.
WILLIAM J O’BRIEN, III,
Appellant
__________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(District Court No.: 2-15-cr-00021-001)
District Judge: Honorable Nitza Quiñones Alejandro
__________________________
Submitted under Third Circuit L.A.R. 34.1(a)
on September 15, 2017
Before: VANASKIE, RENDELL, and FUENTES, Circuit Judges
(Opinion filed: June 19, 2018)
O P I N I O N*
___________
RENDELL, Circuit Judge:
I. BACKGROUND
For nearly three years, Dr. William O’Brien prescribed large quantities of
medically-unnecessary oxycodone, methadone, and alprazolam to individuals in
exchange for cash and sexual favors. 1 In 2013, O’Brien prescribed 120 oxycodone pills
and sixty methadone pills for one of his “patients”, Joseph Ennis. Supp. App. 986, 997-
98. Five days later, Ennis was discovered dead in his apartment, with high levels of
oxycodone, methadone, and a third drug, cyclobenzaprine, in his blood. 2 Supp. App.
1321.
O’Brien was subsequently charged with two counts of conspiracy to dispense and
distribute a controlled substance (21 U.S.C. § 846), 114 counts of distributing a Schedule
II controlled substance (21 U.S.C. § 841(a)(1), (b)(1)(C)), seven counts of distributing a
Schedule IV controlled substance (21 U.S.C. § 841(a)(1), (b)(1)(E)), one count of
dispensing a controlled substance that resulted in death (21 U.S.C. § 841(a)(1),
(b)(1)(C)), one count of conspiracy to engage in money laundering (18 U.S.C. § 1956(h)),
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
1
Oxycodone and methadone are Schedule II opioid-based controlled substances. 21
C.F.R. § 1308.12(c). Alprazolam, typically referred to by its brand-name, Xanex, is a
Schedule IV controlled substance. 21 C.F.R. § 1308.14(c).
2
O’Brien had not prescribed cyclobenzaprine for Ennis. Supp. App. 1321.
2
one count of conspiracy to commit bankruptcy fraud (18 U.S.C. § 371), and one count of
making a false oath in bankruptcy proceedings (18 U.S.C. § 152(2)).
At a pre-trial hearing on the government’s motion to remove O’Brien’s privately-
retained counsel due to a conflict of interest, O’Brien told the court that he intended to
fire his counsel and proceed pro se. Supp. App. 4. The District Court strongly advised
him not to do so, but O’Brien maintained that he “would like to exercise [his] 6th
Amendment rights.” Supp. App. 4. The District Court heard argument on, and ultimately
granted, the government’s motion to remove O’Brien’s conflicted counsel. Supp. App.
20.
The District Court held a hearing on O’Brien’s oral motion to proceed pro se.
Supp. App. 27. Prior to the hearing, the government filed a motion asking the District
Court to appoint counsel to advise O’Brien on his request to proceed pro se. Supp. App.
1387-90. O’Brien opposed the government’s request and again asserted his right to
proceed pro se. Supp. App. 1387-90. The District Court did not appoint O’Brien counsel.
At the beginning of the hearing, the government asked the District Court to appoint
O’Brien counsel to represent him at the hearing. Supp. App. 29. The District Court
denied the government’s request and proceeded with a Peppers colloquy. 3 Supp. App.
35. O’Brien answered all the District Court’s questions and repeatedly stated that he
understood the law and the implications of proceeding pro se. Supp. App. 29-45. The
District Court concluded that O’Brien had knowingly and voluntarily waived his right to
3
In United States v. Peppers, 302 F.3d 120 (3d Cir. 2002), we provided a list of fourteen
questions intended to guide courts in determining whether a defendant’s decision to
proceed pro se is knowing, intelligent, and voluntary.
3
counsel, granted his request to represent himself, and appointed an attorney as standby
counsel. Supp. App. 48.
O’Brien proceeded to trial. A parade of witnesses, a confidential informant,
videotape evidence, and expert testimony indicated that O’Brien had prescribed
oxycodone and methadone to numerous individuals, including Joseph Ennis, outside the
usual course of professional practice and for no medical purpose. Supp. App. 768, 791,
935-36, 938, 942-47, 1146, 1127-28. Two medical experts testified that Ennis had died
from a combination of oxycodone and methadone. Supp. App. 1291, 1294, 1355, 1379.
Although they disagreed on the exact role played by the third drug, cyclobenzaprine, they
agreed that, absent the oxycodone and methadone, Ennis would not have died. 4
Peter Marrandino, a cooperating codefendant and O’Brien’s former patient,
testified on behalf of the government. O’Brien’s cross-examination of Marrandino lasted
two days. On the first day, O’Brien questioned Marrandino about the possibility that, in
exchange for his testimony against O’Brien, Marrandino could receive a lighter sentence.
Supp. App. 251-52. Marrandino answered O’Brien’s questions willingly and testified
that he indeed hoped to receive a lighter sentence in exchange for his cooperation. Id. On
the second day of cross-examination, O’Brien asked Marrandino several questions about
his plea agreement, which said that the government would file a “5K” in Marrandino’s
4
Dr. Stephen Thomas testified that cyclobenzaprine did not contribute at all to Ennis’s
death. Supp. App. 991, 1283-84, 1288. Dr. Ian Hood testified that the cyclobenzaprine
may have contributed to Ennis’s death but that, absent the methadone and oxycodone,
cyclobenzaprine would not have caused Ennis’s death. Supp. App. 1379.
4
case in exchange for his testimony. 5 Supp App. 345-46. When Marrandino indicated that
he did not understand the technicalities of the 5K process, the District Court stepped in to
explain the 5K motion process to the jury. Supp. App. 347. The District Court then said
“that’s as much as we are going to go into the 5K1.1 motion.” Supp. App. 347. O’Brien
did not ask Marrandino any additional questions about his plea agreement or his
expectation of a reduced sentence.
Angela Rongione, another cooperating codefendant and O’Brien’s former office
manager, also testified on behalf of the government. At two separate points during cross-
examination, O’Brien questioned Rongione about her expectation of a reduced sentence
in exchange for her testimony. Supp. App. 545, 627-28. When O’Brien attempted to
broach the subject a third time, the District Court sustained the government’s objection
on the grounds that Rongione had already testified on that issue. Supp. App. 743.
O’Brien asked Rongione one more time if she was testifying in order to receive a reduced
sentence, then pursued no further questions on the topic. Supp. App. 743.
After the close of evidence, the District Court instructed the jury. It gave the
following instruction on the charge of dispensing a controlled substance resulting in death
under 21 U.S.C. § 841(b)(1)(C):
To find the defendant guilty of distributing or
dispensing oxycodone or methadone outside of the usual
course of professional practice and not for a legitimate
medical purpose that results in death, you must find that the
5
Under § 5K1.1 of the United States Sentencing Guidelines, the government may motion
a sentencing court to depart from the guidelines and impose a reduced sentence on a
defendant who has provided substantial assistance in the investigation or prosecution of
another person who has committed an offense.
5
government has proved beyond a reasonable doubt each of
the elements of distribution or dispensing of a controlled
substance outside the usual course of professional practice
and not for a legitimate medical purpose, which I have just
explained to you.
In addition to these elements, you must also find that
the government has proved beyond a reasonable doubt that
oxycodone and methadone distributed by the defendant
resulted in the death of another, specifically, Joseph Ennis.
In order to establish that these controlled substances
were distributed or dispensed by the defendant [and] resulted
in the death of Joseph Ennis, the government must prove that
Joseph Ennis died as a consequence of his use of oxycodone
and methadone that the defendant distributed or dispensed on
or about the date alleged in the indictment.
The law provides that . . . death is a consequence of a
victim’s use of [a] controlled substance that was distributed or
dispensed by the defendant, a more serious offense is
committed regardless of whether the defendant knew or
should have known that death [would] result.
There is no requirement that death resulting from the
use of [a] controlled substance was a reasonably foreseeable
event or that the controlled substance was a proximal cause of
the death. A finding by you that[,] but for the victim’s
ingesting of the charged controlled substance, distributed or
dispensed . . . by the defendant, the victim would not have
died[,] satisfies the standard.
The fact that Joseph Ennis may have used other drugs
in addition to oxycodone and methadone is not relevant if you
determine that he would not have died without ingesting these
two substances, the oxycodone and the methadone. That is,
the defendant cannot be found guilty absent evidence that the
victim would have lived but for [the] oxycodone and
methadone used which were prescribed by the defendant.
Supp. App. 1383-85.
The jury found O’Brien guilty of all counts except four of the distribution counts. App. 2.
6
II. ANALYSIS
A. District Court’s Failure to Appoint Counsel for O’Brien’s Peppers Hearing
First, O’Brien argues that the District Court’s failure to appoint counsel to
represent him at his Peppers hearing violated his Sixth Amendment right to counsel.
Because this issue was not raised before the District Court, we review for plain error. See
Fed. R. Crim. P. 52. 6 A defendant establishes plain error by proving that the court erred,
that the error was obvious under the law at the time of review, and that the error affected
the outcome of the proceedings. Johnson v. United States, 520 U.S. 461, 467 (1997).
O’Brien does not take issue with the District Court’s Peppers colloquy or its
subsequent conclusion that his waiver of counsel was knowing and voluntary. Instead, he
challenges the District Court’s failure to appoint counsel to represent him at the Peppers
hearing itself. However, O’Brien has not identified, nor have we found, any legal
authority supporting the proposition that a defendant must be represented by counsel at a
hearing to waive the right to counsel. Thus, even if the District Court’s refusal to appoint
counsel to represent O’Brien at his Peppers hearing was erroneous, that error is not
“obvious” under current law, as required under the plain error standard. Johnson, 520
U.S. at 467. Thus, O’Brien is not entitled to relief based on this issue.
6
Appellees argue that O’Brien waived his Sixth Amendment right to counsel by
repeatedly and explicitly asserting his right to proceed pro se, opposing the government’s
request to appoint counsel, and rejecting the District Court’s offer to allow him to consult
with counsel. See United States ex rel. O’Connor v. State of New Jersey, 405 F.2d 632,
634 n.2 (3d Cir. 1969) (“The Supreme Court has defined waiver as ‘an intentional
relinquishment or abandonment of a known right or privilege.’” (quoting Johnson v.
Zerbst, 304 U.S. 458, 464 (1938))). However, we assume for purposes of this appeal that
O’Brien has not waived his Sixth Amendment claim.
7
B. Cross-Examination of Marrandino and Rongione
Next, O’Brien argues that the District Court erred in curtailing his cross-
examination of Marrandino and Rongione regarding their expectations of reduced
sentences in exchange for their testimony. We review a District Court’s limitation on
cross-examination of witnesses for abuse of discretion, United States v. Ellis, 156 F.3d
493, 498 (3d Cir. 1998), and we will only reverse if the limitation “is so severe as to
constitute a denial of the defendant’s right to confront witnesses against him and it is
prejudicial to the substantial rights of the defendant,” United States v. Friedman, 658
F.3d 342, 352 (3d Cir. 2011) (quoting United States v. Casoni, 950 F.2d 893, 918-19 (3d
Cir. 1991)).
A criminal defendant “states a violation of the Confrontation Clause by showing
that he was prohibited from engaging in otherwise appropriate cross-examination
designed to show a prototypical form of bias on the part of the witness[.]” Delaware v.
Van Arsdall, 475 U.S. 673, 680 (1986). Inquiring into a cooperating defendant’s
expectations for leniency is appropriate, as potential leniency in exchange for testimony
provides a witness “a motive for favoring the prosecution in his testimony.” Id. at 679.
However, even if a court errs in limiting a defendant’s ability to question a witness
regarding his or her expectations of leniency, the error is harmless unless a reasonable
jury would have received a significantly different impression of the witness if the
defendant had been permitted to pursue his proposed line of inquiry. See United States v.
Chandler, 326 F.3d 210, 221 (3d Cir. 2003) (citing Van Arsdall, 475 U.S. at 680).
8
O’Brien argues that his right to cross-examine Marrandino was violated when the
District Court foreclosed further discussion of the 5K process. However, any error the
District Court may have committed by limiting further questioning on this subject was
harmless. O’Brien had already questioned Marrandino about his hope of leniency in
exchange for his testimony. Marrandino had answered those questions willingly, and the
jury was given an adequate opportunity to evaluate his credibility in light of his potential
bias. A reasonable jury would not have received a significantly different impression of
Marrandino if O’Brien had been permitted to ask him additional questions about the
details of his plea agreement or the 5K motion process.
O’Brien argues that his right to cross-examine Rongione was violated when the
District Court sustained the government’s objection to questions regarding Rongione’s
hope for a reduced sentence in exchange for her testimony. However, O’Brien had been
permitted to question Rongione on this issue twice before the District Court sustained the
government’s objection to further questioning. Further interrogation would have been
repetitive, and a reasonable jury would not have received a significantly different
impression of Rongione if O’Brien had been permitted to ask those questions a third
time. Therefore, the District Court’s limitation of O’Brien’s opportunity to cross-examine
Marrandino and Rongione was harmless.
C. Jury Instruction
At the charging conference, O’Brien’s standby counsel raised four objections to
the proposed jury instruction on the charge of dispensing a controlled substance resulting
in death under 21 U.S.C. § 841(b)(1)(C). Supp. App. 1432-34. O’Brien raises the same
9
four issues on appeal. We review jury instructions de novo to determine whether, if taken
as a whole, they properly appraised the jury of the issues and the applicable law. Gutzan
v. Altair Airlines, Inc., 766 F.2d 135, 138 (3d Cir. 1985). Absent an affirmative
misstatement of the applicable law, our review is for an abuse of discretion. United States
v. Maury, 695 F.3d 227, 261 (3d Cir. 2012).
First, O’Brien argues that the jury should have been instructed that they could only
find him guilty if the controlled substance that caused Ennis’s death was taken “in
accordance with instructions by the prescribing physician.” Br. for Appellant at 21. A
defendant is guilty of violating 21 U.S.C. § 841(b)(1)(C) if he unlawfully distributes a
controlled substance and if “death or serious bodily injury results from the use of such
substance.” O’Brien has not provided, nor can we find, any legal support for the notion
that a physician who illegally prescribes a controlled substance is only guilty for a death
that results from the use of the controlled substance if the victim ingested it in accordance
with the instructions that accompanied the illegitimate prescription. Thus the jury
instruction accurately stated the applicable law. 7
7
O’Brien also suggests that this additional instruction was necessary because Ennis may
have obtained methadone and oxycodone from a source other than O’Brien. However, the
jury instructions made clear that, in order to find O’Brien guilty of distribution of a
controlled substance resulting in death, the jury had to find that the controlled substance
distributed by O’Brien was the cause of Ennis’s death. See Supp. App. 1384 (“You must
also find that the government has proved beyond a reasonable doubt that oxycodone and
methadone distributed by the defendant results in the death of another, specifically,
Joseph Ennis. . . . [T]he government must prove that Joseph Ennis died as a consequence
of his use of oxycodone and methadone that the defendant distributed or dispensed on or
about the date alleged in the indictment.”).
10
Next, O’Brien argues that the following phrase was prejudicial: “The law provides
that whenever . . . death is a consequence of a victim’s use of a controlled substance that
was distributed or dispensed by the defendant, a more serious offense is committed.”
However, this is an accurate statement of the law: 21 U.S.C. § 841(b)(1)(C) prescribes an
enhanced penalty for distribution of a controlled substance when the distribution results
in death. See Burrage v. United States, 134 S. Ct. 881, 892 (2014) (referring to 21 U.S.C.
§ 841(b)(1)(C) as a “penalty enhancement provision”). The District Court did not abuse
its discretion by clarifying for the jury the relationship between mere distribution of a
controlled substance and the more serious crime of distribution of a controlled substance
resulting in death.
O’Brien also argues that the jury instruction should have defined the term
“proximal cause.” The District Court accurately explained the relevant causation standard
to the members of the jury: they did not need to find that the controlled substance was the
proximal cause of the victim’s death, simply that it was the but-for cause. Supp. App.
1384. This is an accurate statement of the law. See Burrage, 134 S. Ct. at 887-88 (a
defendant is guilty of violating the statute if the controlled substance was the but-for
cause of the victim’s death); United States v. Robinson, 167 F.3d 824, 831 (3d Cir. 1999)
(the controlled substance need not be the proximate cause of the victim’s death). The
District Court did not abuse its discretion by declining O’Brien’s request to define a
complicated causation standard that was not relevant to the jury’s verdict. In fact, such a
definition may have unnecessarily confused the jury.
11
Finally, O’Brien takes issue with the following phrase: “The fact that Joseph Ennis
may have used other drugs in addition to oxycodone and methadone is not relevant[.]” He
argues that the presence of a third drug in Ennis’s system, cyclobenzaprine, was relevant
because Dr. Hood testified that an overdose of cyclobenzaprine could lead to death and
that Ennis had high levels of cyclobenzaprine in his system. Read in isolation, this phrase
appears problematic, as it suggests that O’Brien could be held responsible for Ennis’s
death even if his death was the result of a drug O’Brien had not prescribed. However, we
must evaluate the jury instructions as a whole. When read in conjunction with the rest of
the sentence, this phrase accurately states the applicable law:
The fact that Joseph Ennis may have used other drugs
in addition to oxycodone and methadone is not relevant if you
determine that he would not have died without ingesting these
two substances, the oxycodone and the methadone. That is,
the defendant cannot be found guilty absent evidence that the
victim would have lived but for [the] oxycodone and
methadone used which were prescribed by the defendant.
Supp. App. 1385 (emphasis added).
Read as a whole, the jury instructions accurately informed the jury of the applicable law:
O’Brien could only be found guilty of violating 21 U.S.C. § 841(b)(1)(C) if the
oxycodone and methadone he unlawfully prescribed were the but-for cause of Ennis’s
death, even if Ennis took other drugs as well. Thus, O’Brien’s claim that the jury
instructions were erroneous fails.
III. Conclusion
For the foregoing reasons, we affirm the orders of the District Court.
12