In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3626
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
R OGER A. PELLMANN,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 2:10-CR-00014-CNC-1—Charles N. Clevert, Jr., Chief Judge.
A RGUED JUNE 1, 2011—D ECIDED F EBRUARY 10, 2012
Before F LAUM and SYKES, Circuit Judges, and C ONLEY,
District Judge.
C ONLEY, District Judge. Roger A. Pellmann was con-
victed by a jury of (1) distributing fentanyl, a Schedule II
narcotic controlled substance in violation of 21 U.S.C.
The Honorable William M. Conley, United States District
Court for the Western District of Wisconsin, sitting by designa-
tion.
2 No. 10-3626
§ 841(a)(1); and (2) obtaining morphine by misrepresenta-
tion, fraud, and deception in violation of 21 U.S.C.
§ 843(a)(3). On appeal, Pellmann argues that his convic-
tion should be overturned because the government
failed to introduce expert testimony to prove that he
distributed Schedule II narcotics outside of his profes-
sional practice and for other than legitimate medical
purposes. Pellmann also maintains that the district court
improperly enhanced his sentence for obstruction of
justice. Because the jury’s verdict is supported by over-
whelming evidence and the district court’s sentencing
enhancement based on Pellmann’s having lied to the
U.S. Drug Enforcement Administration (“DEA”) agents
is more than reasonable under the circumstances,
we affirm the district court’s judgment.
I
In considering trial evidence, the court gives “a jury
verdict great deference and will uphold the verdict if,
viewing the evidence in the light most favorable to
the government, any rational trier of fact could have
found the essential elements of the crime beyond a rea-
sonable doubt.” See United States v. Baker, 655 F.3d 677,
684 (7th Cir. 2011) (citing United States v. Hicks, 368
F.3d 801, 804-05 (7th Cir. 2004)). It is not our role to
“re-weigh the evidence or second guess the jury’s credi-
bility determinations.” Baker, 655 F.3d at 684 (citing
United States v. Stevens, 453 F.3d 963, 965 (7th Cir. 2006)).
The evidence admitted at trial supports the following
findings by the jury.
No. 10-3626 3
A. Background
Pellmann was a medical doctor licensed to practice
in Wisconsin, and board certified in radiology, inter-
ventional radiology, and phlebology (the study and
treatment of vein disease). During the previous decade,
Pellmann owned and operated two businesses: the
Pellmann Center for Medical Imaging in New Berlin,
Wisconsin, which provided imaging services, such as
MRI and CT scans; and the Pellmann-Evans Vein and
Laser Clinic in Germantown, Wisconsin, which pro-
vided treatments for varicose veins. As a practicing
physician, Pellmann was also registered with the
DEA, which authorized him to order, prescribe and
administer controlled substances under appropriate
circumstances.
As part of his practice at his medical clinics, Pellmann
administered fentanyl to his patients to treat pain. Like
morphine, fentanyl is a Schedule II narcotic pain
reliever, but more effective because it is short-acting
and has 100 times the potency. Pellmann’s staff testified
at trial that a patient would typically receive one vial of
fentanyl during a procedure and, at most, three to
five vials. From 2005 through 2008, Pellmann ordered
no morphine and no more than 260 units of fentanyl
per year.
In 2009, these orders changed dramatically. That year
alone, Pellmann ordered substantial quantities of
morphine and more than 7,000 dosage units of fentanyl,
which represents a more than 27-fold increase over pur-
chases in prior years. Unsurprisingly, this sharp increase
4 No. 10-3626
caught the attention of the DEA, prompting an investiga-
tion.
B. DEA Investigation
As part of its investigation, the DEA obtained records
of prescriptions for controlled substances issued by
Pellmann and filled at certain pharmacies in Wisconsin
between 2007 and 2009. These records revealed that
Pellmann was issuing a large percentage of his prescrip-
tions to Jacquelynn Evans, a registered nurse.
Evans had begun working for Pellmann in Septem-
ber 2005, first as a nurse and eventually as vice president
of the vein clinic. Evans considered Pellmann her
primary care physician, even though he was a radiolo-
gist. Over the years, Pellmann treated Evans for sinusitis,
bronchitis, gastroenteritis, low back pain, and migraine
headaches, and also treated members of her family.
Evans testified she loved Pellmann and considered him
her best friend.
On November 3, 2009, federal agents collected
discarded trash from Evans’ residence. In the trash, agents
found 421 empty vials of fentanyl, 13 empty vials of
morphine, an empty 20-milliliter bottle of morphine,
packaging materials and inserts for fentanyl and mor-
phine, used syringes, needles, band-aids, and alcohol
swabs. Based on this evidence, the DEA obtained search
warrants for Pellmann’s vein clinic and Evans’ residence,
which they executed on November 12, 2009.
Evans’ home revealed more of the same. Agents found
a variety of needles, syringes, other medical supplies,
No. 10-3626 5
packaging materials, and full and empty vials of
fentanyl and morphine. The vials were found in
numerous locations throughout her home: scattered on a
desk in her study, in an overnight bag also in the study,
in the kitchen, in the trash in the garage, in Evans’ car,
in the master bedroom and bathroom, and in Evans’
purse. In a bathroom closet, agents discovered two
large plastic containers filled with used needles and
hundreds, if not thousands, of empty fentanyl and mor-
phine vials.
At the vein clinic, agents found dispensing logs for
fentanyl, but no records reflecting Pellmann’s acquisi-
tion or use of morphine. The agents also located seven
unopened vials of fentanyl and no morphine.
DEA agents also interviewed Pellmann, during which
he eventually acknowledged that Evans was his patient
and that he had been treating her with fentanyl and
morphine. Pellmann reported giving Evans fentanyl
every day, increasing over time from 10 to 20 vials to
50 vials per day, as well as morphine. Pellmann stated
that he delivered and administered fentanyl and
morphine at Evans’ home and at his house. Pellmann
also acknowledged that he had not documented his
treatment of Evans, nor were the agents able to uncover
any records reflecting Pellmann’s treatment of Evans at
the clinic. During this same interview, Pellmann also
told the agents that he was injecting himself with
morphine to treat a neck injury.
After obtaining Pellmann’s consent, the agents pro-
ceeded to search Pellmann’s car and home. Inside the car,
6 No. 10-3626
the agents recovered a large box containing 600 vials of
fentanyl and 10 boxes of morphine. When asked why the
drugs were in his car, Pellmann reported that he was
transporting them to his home for safekeeping after a
recent theft at the clinic, and specifically denied that he
was delivering them to Evans’ home.
Throughout Pellmann’s home, agents found numerous
bottles and vials of fentanyl and morphine, both full
and empty, including trays of vials in his bedroom and
bathroom. In and around the sink in Pellmann’s bath-
room, agents found used and unused syringes with
needles, alcohol wipes, and an elastic armband, presum-
ably used to expose veins for injections. Agents also
found two nails above Pellmann’s bed, which at trial
Pellmann and Evans both testified were used to hang
bags of saline solution to facilitate Evans’ use of fentanyl
and morphine.
On November 17, 2009, the DEA agents again collected
garbage from outside of Evans’ house and recovered
approximately 100 empty fentanyl vials, empty morphine
vials, used syringes, and packaging material for
fentanyl. On January 12, 2010, one of the nurses em-
ployed at the vein clinic contacted the DEA to report
her discovery of empty fentanyl vials in the non-
medical trash, along with other medical supplies,
including packaging trays for fentanyl, used syringes
and bloody gauze.
On January 14, 2010, DEA agents searched Pellmann’s
vein clinic and arrested him. At that time, agents found
144 unopened vials of fentanyl, although the clinic’s
No. 10-3626 7
records indicated that there should have been 371 vials.
Agents also found empty fentanyl vials in the trash in
Pellmann’s personal bathroom at the clinic.
Pellmann was charged with multiple violations of
21 U.S.C. §§ 841(a)(1) and 843(a)(3). After his initial ap-
pearance, Pellmann was released on bond. Among the
conditions of his release, Pellmann was not to possess
Schedule II controlled substances, employ Evans, or
prescribe any drugs for her. Immediately following his
release, however, Evans picked Pellmann up from the
courthouse and the two spent the night at a hotel, where
Pellmann administered medications to Evans. Pellmann
admitted that he provided Evans with midazolam, a non-
Schedule II controlled substance. Evans believed he
administered fentanyl.
C. Additional Evidence at Trial
At trial, Evans testified that Pellmann began admini-
stering fentanyl in March 2009 to treat severe mouth
pain stemming from a fractured tooth, which Pellmann
diagnosed as trigeminal neuralgia and described as the
“suicide disease,” because of the high rates of suicide
associated with the condition. Pellmann administered
fentanyl, and later morphine, to Evans; he also provided
fentanyl for Evans to administer to herself.
One of the agents testified at trial that, during the
investigation, Pellmann explained Evans suffered from
severe dental problems and that Evans’ oral surgeon,
Dr. Guy Jensen, had asked Pellmann to handle Evans’
8 No. 10-3626
pain management. This directly contradicted Jensen’s
trial testimony that Evans never disclosed that she was
taking fentanyl; that Evans did not exhibit symptoms
of trigeminal neuralgia; that he did not know Pellmann;
and that he had never discussed Evans’ pain manage-
ment with him or with anyone else. At trial, Pellmann
acknowledged not speaking with Jensen about Evan’s
condition, claiming that he either misspoke during his
interview with the agent or the agent misheard him.
After the DEA searched Evans’ home in November 2009,
Evans sought treatment for opiate dependency and
withdrawal from fentanyl and morphine. As part of this
treatment, her psychiatrist prescribed Suboxone, which
blocks the effect of fentanyl and diminishes cravings.
At trial, Pellmann acknowledged that he continued to
give Evans daily doses of fentanyl while she was being
treated with Suboxone.
Pellmann testified at trial that he treated Evans, as
well as members of her family, for a variety of medical
conditions. In 2009, Pellmann began treating Evans for
pain, which he diagnosed as resulting from trigeminal
neuralgia. After Vicodin and fentanyl patches proved
unsuccessful, Pellmann began using fentanyl vials and
later morphine. Pellmann acknowledged that he did not
document his diagnosis or treatments.
Current and former employees of Pellmann’s vein
clinic also testified about the use of controlled substances
at the clinic. Specifically, Melissa McGrath, a registered
nurse who worked at the clinic from March 2008 through
February 2010, and Wendy Kaehny, the supervisor of the
No. 10-3626 9
vein and laser practice since 2003, both testified that
fentanyl was used during vein procedures and that all
use was documented in paper charts. Esperanza Hall,
the IT manager with no medical experience, testified that
on two occasions she assisted Pellmann in inserting a
PICC (which stands for peripherally inserted central
catheter) line into Evans and that she delivered medicine
from Pellmann to Evans at her home. After one such
delivery, Evans paid Hall $100, which Hall testified was
for gas and mileage.
Evans testified that Pellmann initially gave her one to
two vials of fentanyl per injection from one to three times
per week, slowly increasing over time. Pellmann testified
that virtually from the start of his treatment of Evans, he
was giving her 20 injections of fentanyl on a daily basis,
and that the dosage increased from two vials to five
vials per injection from mid-March 2009 to November
2009. Starting in May 2009, Pellmann testified that he
began substituting morphine for fentanyl at night.
Pellmann explained these injections were administered
at Evans’ or his house so that he could monitor Evans
due to the risk of respiratory distress associated with
such medications.
At trial, the government chose not to offer any expert
testimony as to the appropriate standard of care or
medical practice for treating trigeminal neuralgia or
Evans’ complaints of pain. On June 4, 2010, the jury
returned a verdict of guilty on all counts and the district
court scheduled a sentencing hearing for September 17,
2010.
10 No. 10-3626
D. Sentencing
The presentence report recommended a base offense
level of 18, a two-level increase under U.S.S.G. § 3B1.3
for Pellmann’s use of a special skill as a physician to
facilitate his offenses, and an additional two-level
increase under U.S.S.G. § 3C1.1 based on Pellmann’s
efforts to obstruct the government’s investigation and
prosecution, for a total base offense level of 22. Pellmann
objected to the base offense level and the proposed
increase for obstruction of justice.
At an initial sentencing hearing on September 17,
2010, the court indicated that it was not yet prepared to
address the issue of whether Pellmann’s offense level
should be increased for obstruction of justice. But at the
continuation of the sentencing hearing on October 12,
2010, the court found that Pellmann had attempted to
obstruct the government’s investigation and prosecution
by intentionally providing false information to fed-
eral agents. Specifically, the district court found
that Pellmann’s statements to DEA agents during the
investigation concerning Dr. Jensen “were intentionally
false and sufficient in and of themselves to warrant a
finding that the defendant obstructed justice in this
matter.” The court also noted other evidence of obstruc-
tion, including Pellmann’s false statement to agents that
drugs had been stolen from his office in order to try to
justify the storing of fentanyl in his car. The district
court found that the trial testimony established that
Pellmann and Evans “were utilizing fentanyl away
from the clinic, and that the drugs that were in the
No. 10-3626 11
car were there for the primary purpose of feeding
Ms. Evans’ addiction.”
With an adjusted offense level of 22 and a Criminal
History Category of I, the advisory guideline range was
41 to 52 months. The court sentenced Pellmann to
48 months on each count, to run concurrently, and to
a subsequent three-year period of supervised release.
II
On appeal, Pellmann challenges his conviction under
21 U.S.C. § 841(a)(1), which provides that it is “unlawful
for any person knowingly or intentionally . . . to manufac-
ture, distribute, or dispense, or possess with intent to
manufacture, distribute, or dispense, a controlled sub-
stance.” 1 Typically, to convict a person of violating 21
1
Pellmann also purports to challenge, but fails to develop an
argument for overturning, his conviction under § 843(a)(3),
which concerns knowingly obtaining morphine sulfate by
misrepresentation, fraud and deception. As a result, neither
side addresses this statute, citing only to cases discussing
proof sufficient to convict a physician under § 841(a)(1). The
court will not separately address this count of conviction
further since (1) proof that Pellmann was prescribing morphine
outside the scope of professional conduct coincided with proof
as to fentanyl, as did proof that Pellmann acted for other than
a legitimate medical purpose; (2) the proof as to heroin pre-
scription was, if anything, even stronger, given Pellmann’s
never prescribing it in his practice; and (3) Pellmann failed
(continued...)
12 No. 10-3626
U.S.C. § 841(a)(1), the government must establish that
the defendant knowingly possessed with an intent to
distribute a controlled substance, and that the de-
fendant knew that the substance was controlled. See
United States v. Bek, 493 F.3d 790, 798 (7th Cir. 2007). Where
the defendant is a physician, however, the government
must also show that he prescribed controlled substances
(1) “outside the course of professional practice” and
(2) without a “legitimate medical purpose.” Id.; see also
United States v. Chube, 538 F.3d 693, 697-98 (7th Cir. 2008);
21 C.F.R. § 1306.04(a) (“A prescription for a controlled
substance[,] to be effective[,] must be issued for a legiti-
mate medical purpose and by an individual practitioner
acting in the usual course of his professional practice.”).
Pellmann argues that his convictions must be overturned
because the government failed to introduce expert testi-
mony to prove either of these facts. The government
correctly characterizes Pellmann’s argument as a chal-
lenge to the sufficiency of evidence supporting his con-
viction.
Other courts have considered the requirement of ex-
pert testimony in cases where physician-defendants are
charged with violating § 841(a)(1) and have uniformly
held that such testimony is not required, assuming there
is other evidence, including lay testimony, that the de-
fendant acted outside of the scope of his or her usual
1
(...continued)
to develop any separate argument on appeal challenging
his conviction under § 843(a)(3).
No. 10-3626 13
course of professional practice and for other than a legiti-
mate medical purpose. For example, in United States v.
Armstrong, the Fifth Circuit considered a physician-defen-
dant’s nearly identical challenge to his conviction based
on the government’s claimed failure to present expert
testimony. 550 F.3d 382 (5th Cir. 2008), overruled on other
grounds by United States v. Balleza, 613 F.3d 432, 433 (5th
Cir. 2010). In rejecting this argument, the court explained:
While expert testimony may be both permissible and
useful, a jury can reasonably find that a doctor pre-
scribed controlled substances not in the usual course
of professional practice or for other than a legitimate
medical purpose from adequate lay witness evi-
dence surrounding the facts and circumstances of
the prescriptions.
Id. at 389; see also United States v. Word, 806 F.2d 658, 663-64
(6th Cir. 1986) (affirming conviction of physician and
finding expert testimony not required given facts of case);
United States v. Smurthwaite, 590 F.2d 889, 892 (10th Cir.
1979) (finding expert testimony not required to support
conviction of physician-defendants).
Pellmann argues that Armstrong and the other cases
are distinguishable from the facts here, because they all
involved physicians who peddled drugs to multiple
patients. In Armstrong, the government presented
evidence of an extremely high volume of patients (as
many as 300 patients in a four- to six-hour period), short
durations of patient visits, lack of meaningful physical
examination, false documentation, pre-printed medical
comments, a cash-only payment policy and a lack of
14 No. 10-3626
individualization of prescriptions, which were prepared
in advance of the appointment and required only
the doctor’s signature. 550 F.3d at 389. Similarly, in
Smurthwaite, patient visits lasted less than five minutes
with little or no physical examination, patients were
charged per prescription, and the physician-defendant
had knowledge that the prescription medication was not
used as intended. 590 F.2d at 892.
Obviously, the facts here do not fall within these
more common “drug pusher” cases: Pellmann was not
charged with prescribing controlled substances to hun-
dreds of patients, conducting perfunctory examinations,
or issuing cookie-cutter prescriptions. Still, there was
certainly ample evidence, considered together, for
a reasonable jury to determine that Pellmann acted
outside of his professional practice and not for a legiti-
mate medical purpose, including: (1) during 2009,
Pellmann ordered 30 times his previous average, annual
needs of fentanyl and morphine for his entire practice,
all of the excess going to Evans; (2) Pellmann regularly
administered fentanyl and morphine to Evans at her
home and at Pellmann’s home, both of which resembled
(for lack of a better description) drug houses; (3) Pellmann
maintained no records of distribution of drugs to Evans
or his treatment of her, including his apparently con-
cocted diagnosis of trigeminal neuralgia; (4) Pellmann’s
treatment of Evans was wholly outside his use of
No. 10-3626 15
fentanyl and morphine in his professional practice;2
(5) Pellmann’s employees were kept in the dark about
his claimed treatment of Evans; and (6) following his
arrest and initial arraignment, Pellmann again took
Evans to a hotel and administered drugs in direct viola-
tion of a court order. As detailed in Part I of this opinion,
this evidence is not only sufficient to support the jury’s
conviction, it is overwhelming.
2
The DEA conducted an audit of Pellmann’s acquisition and
use of fentanyl and morphine during 2009. In a nine-month
period, from February 26, 2009 through November 17, 2009,
pharmaceutical records revealed that Pellmann made 40
separate purchases of fentanyl and obtained a total of 15,090
2-milliliter vials. Records from Pellmann’s clinic revealed that
he used 507 vials of fentanyl at his clinic during that same
period—an amount roughly equivalent to double his maxi-
mum annual use in any of the prior four years. Even after
accounting for the 600 vials discovered in his car, Pellmann had
no records explaining his use of 13,470 vials of fentanyl. A
second audit was conducted from the date of the initial search,
November 19, 2009, until the date of Pellmann’s arrest,
January 14, 2010. That audit revealed that Pellmann failed to
account for 124 vials of fentanyl and that the majority of fentanyl
that was accounted for had been administered to Evans. An
audit of Pellmann’s purchases of morphine from April 28,
2009 through December 2, 2009, was just as damning. Pellmann
made 30 purchases of morphine for a total purchase of 64,150
milligrams. Other than the morphine found in Pellmann’s car,
DEA agents could not account for any of the morphine pur-
chased during this period. Indeed, he had purchased none for
his medical practice in the past four years.
16 No. 10-3626
Pellmann cites to two decisions from our circuit
in support of his argument to the contrary, but in
neither did this court hold that expert testimony was
required. In United States v. Bek, the government
presented lay evidence that the physician-defendant Bek
acted outside of the normal course of his professional
practice, along with expert testimony by a pharmacist
who “explained that Bek’s practices were dangerous
and very unusual.” 493 F.3d at 797-99. The court
reversed the defendant’s conviction with respect to a
deceased patient, Barbara W., because “no expert
testified about Barbara W.’s condition or Bek’s treatment
of her. Nor did the government present her medical
records.” 493 F.3d at 799. Based on an utter lack of any
evidence regarding the patient and Bek’s treatment of her,
not a lack of expert testimony, the court reversed the
conviction as to this one patient, concluding that the
jury was “unable to assess whether Bek’s treatment of
Barbara W. was within the ‘normal course of profes-
sional conduct.’ ” Id.
In United States v. Chube, the government proffered
expert testimony about the usual standard of care. In
affirming the physician-defendant’s conviction, however,
the Chube court did not hold that expert testimony
was required to sustain the conviction any more than
the court in Bek. Rather, the court considered whether
expert testimony about a civil standard of care might
have muddied the question of “legality.” 538 F.3d at 698-
99. Indeed, the court favorably reviewed an instruction
that the jury “may consider all of the evidence of cir-
No. 10-3626 17
cumstances surrounding the prescription of the sub-
stance in question.” Id. at 699.3
Just as did the Fifth Circuit in Armstrong, we find
that—while expert testimony might have aided the
jury and the district court would not have erred by ad-
mitting such testimony if offered by either party—the
government was not required to present expert
testimony, especially in light of overwhelming evi-
dence of Pellmann’s unprecedented and undocu-
mented prescriptions of profoundly addicting and
potent painkillers, which he personally administered in
multiple, private houses and hotel rooms Pellmann shared
with Evans for long-term treatment of a condition he was
unqualified to diagnose and did not treat in his own
area of practice. Similarly, while Pellmann was allowed
to opine that Evans’ claimed medical condition justified
this drug regimen, the jury had an ample evidentiary
basis to reject it, even without contrary expert opinion.
3
Perhaps realizing the lack of legal precedent for his princi-
pal position, Pellmann also suggests that the district court
impermissibly restricted testimony on the issue of whether
Pellmann was operating within the scope of his professional
practice and with a legitimate medical purpose. But this is
not so. Pellmann was free to opine, and he actually testified,
that Evans was suffering from trigeminal neuralgia and that
his treatment of her condition was appropriate. That the jury
obviously rejected Pellmann’s testimony in light of the gov-
ernment’s overwhelming evidence to the contrary is hardly
surprising and, in any event, something the jury was permit-
ted to do.
18 No. 10-3626
III
Pellmann’s challenge to the district court’s enhance-
ment of his sentence for obstruction of justice also
lacks merit. The district court increased his offense level
under U.S.S.G. § 3C1.1 after finding that Pellmann inten-
tionally provided false information to federal agents
during the investigation. Section 3C1.1 calls for a two-
level increase to a defendant’s offense level if the defen-
dant “willfully obstructed or impeded, or attempted to
obstruct or impede, the administration of justice, with
respect to the investigation, prosecution or sentencing
of the instant offense of conviction.” U.S.S.G. § 3C1.1.
“[P]roviding a materially false statement to a law en-
forcement officer that significantly obstructed or
impeded the official investigation or prosecution of the
instant offense” is included in the types of conduct to
which this enhancement applies. U.S.S.G. § 3C1.1, com-
ment 4(D).
We review the district court’s factual findings under-
pinning its decision to apply the obstruction enhance-
ment for clear error. United States v. DeLeon, 603 F.3d 397,
403 (7th Cir. 2010). We review de novo the district court’s
determination that the facts adequately support the
enhancement. United States v. Anderson, 580 F.3d 639, 648
(7th Cir. 2009).
While the presentence report listed other examples
of false statements made by Pellmann to investigators,
as well as Pellmann’s false testimony at trial, the district
court focused primarily on Pellmann’s statement to DEA
agents during the investigation about his contact with
Evans’ oral surgeon, Dr. Jensen, regarding management
No. 10-3626 19
of Evans’ pain. The district court found that Pellmann’s
statement was false, that in making the statement he
intended to obstruct the investigation, and that this
false statement was sufficient to justify application of
a two-level enhancement in and of itself.
The district court was obviously in the best position
to judge the credibility of Pellmann’s claim that he
either (1) innocently misspoke when he told the DEA
agent about his exchange with Dr. Jensen or (2) the agent
misheard him.4 For this reason, we have little trouble
concluding the district court did not clearly err in finding
that Pellmann intentionally lied to a DEA agent in order
to obstruct his investigation. Indeed, since Dr. Jensen
denied even knowing Pellmann, much less diagnosing
Evans for trigeminal neuralgia and discussing with
Pellmann her resulting need for pain management, it is
far more plausible that Pellmann was intentionally
lying about his supposed conversations with Dr. Jensen
to justify his blatant misconduct, than that he “in-
nocently misspoke” or was misheard. Based on these
factual findings, the district court’s application of an
enhancement for obstruction of justice under U.S.S.G.
§ 3C1.1 and 18 U.S.C. § 3553(a) was wholly appropriate.
The judgment of the district court is, therefore,
A FFIRMED.
4
Pellmann maintained at trial that it was another of Ev-
ans’ dentists who made the diagnosis.
2-10-12