United States v. Donna George

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-4515

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DONNA MARIE GEORGE,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (1:09-cr-00431-JCC-1)

ARGUED: December 6, 2011 Decided: February 21, 2012

Before TRAXLER, Chief Judge, and DUNCAN and AGEE, Circuit
Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: Charles Burnham, BURNHAM & GOROKHOV PLLC, Washington,
D.C., for Appellant. Joshua L. Rogers, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF:
Neil H. MacBride, United States Attorney, Gene Rossi, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Donna Marie George was convicted of one count of conspiracy

to distribute oxycodone and two counts of distribution of

oxycodone and sentenced to 148 months’ imprisonment. See 21

U.S.C. §§ 841, 846. George appeals, challenging her convictions

and sentence. For the reasons set forth below, we affirm.

I.

Viewed in the light most favorable to the government, the

evidence presented at trial established that George was addicted

to prescription narcotics. She fed her addiction through

“doctor shopping” – seeing multiple doctors to get multiple

prescriptions and selling the extra pills. Most of the

prescriptions were for Oxycontin, a time-released version of

oxycodone, although George obtained and used other pain

medications as well. Lisa and Richard Sindelar were also

addicts; they supported their habit by forging prescriptions.

Using a computer and a copier, the Sindelars created

prescriptions that appeared to be written by a doctor at a pain

clinic.

A mutual acquaintance introduced George and the Sindelars

in March 2007, and George thereafter began selling the

Sindelars’ pills. The Sindelars initially sold the drugs to the

mutual acquaintance, who then sold them to George, who

distributed them at the street level. In May 2007, the

2
Sindelars began working directly with George. By June 2007,

George and the Sindelars had become good friends. George

regularly babysat for the Sindelars’ young children, and Richard

Sindelar occasionally created the fake prescriptions at George’s

house. George’s adult daughter, Cindy Carter, was frequently at

her house, and Carter and Lisa Sindelar also became friends.

Carter, who was also addicted to pain pills, sometimes served as

one of the runners who took the Sindelars’ forged prescriptions

to a pharmacy for filling.

In September 2007, Carter was arrested after filling a fake

prescription. Carter agreed to cooperate with the FBI, and

Richard Sindelar was arrested shortly after Carter called him to

arrange a drug transaction. Lisa Sindelar was arrested in

October 2007. After the Sindelars were arrested, George carried

on, getting her supply through her doctor-shopping scheme and

occasionally from a connection in Washington, D.C. George was

finally arrested by the FBI in August 2009.

The Sindelars eventually pleaded guilty to drug-

distribution charges, but George proceeded to trial. At trial,

Lisa Sindelar testified that she and her husband lacked George’s

contacts and that George was their main street-level

distributor. According to Sindelar, she and her husband were

providing George with as many as four or five 90-pill

3
prescriptions a day, and George was buying $8,000 – $10,000

worth of drugs a week from them.

George’s position at trial was that while she was addicted

to prescription medications and sometimes bought and sold a few

pills, she was not part of the conspiracy operated by the

Sindelars. Although George did not testify, her claim of

limited involvement with the Sindelars was supported by the

testimony of George’s daughter, who was a reluctant witness for

the government. On cross-examination, Carter disputed much of

Sindelar’s testimony. Carter testified that George did not know

about the Sindelars’ prescription scheme and that George, who

did not have a job, had money problems and thus could not have

been buying $8,000 – $10,000 worth of pills a week as Sindelar

claimed. The jury was not persuaded by Carter’s testimony and

found George guilty of conspiracy to distribute oxycodone and

distribution of oxycodone.

At the sentencing hearing, the district court heard

testimony from Agent Andrew Lenhart, who testified about the

drug quantities involved in the conspiracy, and from Carter, who

again disputed her mother’s involvement in the Sindelar

conspiracy and testified about the quantity of narcotics

personally consumed by George in order to manage her pain. The

district court found Agent Lenhart’s testimony to be credible

and accepted the drug-quantity calculations as set forth in the

4
PSR. The district court determined that George’s base offense

level was 34 and that a two-level obstruction-of-justice

enhancement should be applied, resulting in a total offense

level of 36. That offense level, when combined with George’s

category I criminal history, yielded an advisory sentencing

range of 188-235 months. The district court varied downward and

imposed concurrent sentences of 148 months for each of the three

counts. This appeal followed.

II.

We turn first to George’s claim that she is entitled to a

new trial because the government failed to fulfill its

disclosure obligations under Brady v. Maryland, 373 U.S. 83

(1963). Brady and its progeny “require[] a court to vacate a

conviction and order a new trial if it finds that the

prosecution suppressed materially exculpatory evidence.” United

States v. King, 628 F.3d 693, 701 (4th Cir. 2011). Accordingly,

a defendant seeking a new trial under Brady must “(1) identify

the existence of evidence favorable to the accused; (2) show

that the government suppressed the evidence; and (3) demonstrate

that the suppression was material.” Id.

A week after trial, the government informed George that,

notwithstanding the government’s “open file” discovery policy,

five documents inadvertently had been placed in a separate file

and thus had not been reviewed by George’s trial attorney. Only

5
three of those documents remain relevant on appeal -- notes from

separate investigative interviews of Lisa and Richard Sindelar

and a document prepared by an FBI agent during the investigation

that summarized the evidence and status of the investigation.

The notes of the Sindelar interviews had been reviewed by

George’s first attorney, who was relieved before trial, but not

by the attorney who represented her at trial. The investigation

summary had not been disclosed to either attorney. After

learning about the documents, George filed a motion seeking a

new trial, arguing that the government breached its disclosure

obligations and that a new trial was therefore required under

Brady. The district court denied the motion, concluding that

the investigation summary was neither favorable to George nor

material, and that the Sindelar interview notes, while favorable

to George, had not been suppressed and were not material.

On appeal, George contends that the documents were

favorable to her and material, and that they were suppressed

because the government failed to include them in the discovery

file. George therefore argues that the district court erred by

denying her motion for a new trial.

A. Sindelar Interview Notes

As noted by the district court in its order denying

George’s motion for a new trial, George’s first attorney

personally reviewed (but did not retain a copy of) the notes of

6
the Sindelar interviews. In light of that fact, the district

court concluded that the interview notes were not suppressed by

the government. We agree.

For Brady purposes, “[s]uppressed evidence is information

which had been known to the prosecution but unknown to the

defense.” Spicer v. Roxbury Corr. Inst., 194 F.3d 547, 557 (4th

Cir. 1999) (internal quotation marks omitted). However, there

is no Brady violation if “defense counsel could have discovered

the evidence through reasonable diligence,” United States v.

Kelly, 35 F.3d 929, 937 (4th Cir. 1994), or if “the defense

already possesses the evidence,” United States v. Higgs, 663

F.3d 726, 735 (4th Cir. 2011). This court has already concluded

that there is no suppression within the meaning of Brady if the

evidence was disclosed to one of the defendant’s original

attorneys but not to the attorney who ultimately represented the

defendant at trial. See King, 628 F.3d at 702. Although there

was no open-file discovery policy at issue in King, we do not

believe that factual difference is significant.

If the government elects to comply with its Brady

obligations by instituting an open-file policy, “defense counsel

may reasonably rely on that file to contain all materials the

State is constitutionally obligated to disclose under Brady.”

Strickler v. Greene, 527 U.S. 263, 283 n.23 (1999). The

defendant’s right to rely on the completeness of the discovery

7
file might, under certain circumstances, defeat an argument by

the government that there was no Brady violation because the

evidence could have been discovered by the defense through a

reasonably diligent investigation, see, e.g., Gantt v. Roe, 389

F.3d 908, 912-13 (9th Cir. 2004), and it might likewise help to

establish in collateral proceedings the “cause” necessary for

consideration of a procedurally defaulted Brady claim, see

Strickler, 527 U.S. at 289. But when evidence omitted from the

discovery file was nonetheless disclosed to the defense in some

other manner, we fail to see why the defendant’s right to assume

the completeness of the file or the government’s imperfect

execution of its open-file policy should somehow invalidate that

prior disclosure. As noted above, we define “suppressed

evidence” as evidence “known to the prosecution but unknown to

the defense.” Spicer, 194 F.3d at 557. Evidence that has been

disclosed to the defense is not “unknown to the defense” simply

because it was not included in the prosecution’s discovery file.

In this case, the Sindelar interview notes were disclosed

to one of George’s attorneys, and that disclosure was sufficient

to satisfy the government’s Brady obligations. See King, 628

F.3d at 702. While it may be that George’s first attorney

failed to inform trial counsel of the existence of the notes, or

failed to convey to trial counsel all of the relevant details

from the interview notes, that failure is not attributable to

8
the government and does not affect the validity of the

disclosure. See id. (“We recognize that some information may

have failed to reach King’s trial counsel, given that King

changed attorneys three times and that his escape from custody

forced the court to reschedule the trial. But the Government

need only disclose exculpatory evidence, not ensure that the

defense further develop and utilize that evidence.”); cf.

Morales v. Ault, 476 F.3d 545, 555 (8th Cir. 2007) (finding

reasonable a state court’s determination that evidence had not

been suppressed for Brady purposes when it was disclosed to

defendant’s original attorney). Accordingly, we agree with the

district court that the Sindelar interview notes were not

suppressed within the meaning of Brady.

B. Investigation Summary

The investigation summary appears to be a mid-investigation

review prepared, apparently for personal use, by Andrew Lenhart,

an FBI agent who investigated the case and testified at trial

and at sentencing. The summary was written at some point before

George was arrested in August 2009, probably in late 2008, given

that the latest date mentioned is October 31, 2008. The

document gives a synopsis of the Sindelars’ prescription-forging

activities and lists the evidence against the Sindelars and

Cindy Carter, among others. George is listed as a subject of

the investigation, but her name otherwise appears only in

9
reference to statements George made to law enforcement

officials, which were included in the list of evidence against

other subjects of the investigation. The investigation summary

mentions no evidence against George herself.

There is no dispute that the investigation summary was

“suppressed” within the meaning of Brady. As to whether the

summary is favorable, George argues that the summary is

exculpatory and has impeachment value because it shows no

evidence against her, which suggests that the agent “did not

truly consider her a co-conspirator when [the summary] was

prepared, despite a presumably thorough investigation.” Brief

of Appellant at 17. Even if we were to accept that argument, we

agree with the district court that the summary was not material.

Undisclosed evidence is material when its cumulative effect

is such that “there is a reasonable probability that, had the

evidence been disclosed to the defense, the result of the

proceeding would have been different.” Kyles v. Whitley, 514

U.S. 419, 433-34 (1995) (internal quotation marks omitted). “A

reasonable probability does not mean that the defendant would

more likely than not have received a different verdict with the

evidence, only that the likelihood of a different result is

great enough to undermine confidence in the outcome of the

trial.” Smith v. Cain, 2012 WL 43512, *2 (U.S. Jan. 10, 2012)

(No. 10-8145) (internal quotation marks and alteration omitted).

10
In our view, the likelihood that disclosure of the investigation

summary would have resulted in a different outcome is so small

that it does not undermine our confidence in the verdict.

The summary is simply a snapshot of the investigation at a

single point in time; the government’s failure at that

particular moment to have nailed down evidence against George

provides no basis for rejecting the evidence later gathered.

Moreover, the lack of evidence at the time the summary was

prepared was likely a reflection of the evolving stories told by

the Sindelars. When the Sindelars were arrested and first

interviewed, they gave statements implicating themselves, each

other, and other family members, but not George. The Sindelars

eventually admitted the full scope of their prescription-forging

scheme and George’s involvement with that scheme, pleaded

guilty, and agreed to cooperate with the government. Counsel

for George knew that the Sindelars’ stories to law enforcement

had evolved over time, and on cross-examination counsel

questioned Lisa Sindelar about her failure to initially

implicate George and raised the possibility that Sindelar was

shading her testimony to earn a favorable sentencing

recommendation from the government. Had it been disclosed, the

summary perhaps could have provided counsel with another path to

make the same point about the evolution in the Sindelars’ story,

but the summary provided no new basis for impeaching Sindelar or

11
otherwise challenging the government’s case. We therefore

conclude that the investigation summary was not “material” for

Brady purposes. See United States v. Cooper, 654 F.3d 1104,

1120 (10th Cir. 2011) (Undisclosed evidence that is “cumulative

of evidence of bias or partiality already presented and thus

would have provided only marginal additional support for the

defense” is not material for Brady purposes (internal quotation

marks and alteration omitted)); Tankleff v. Senkowski, 135 F.3d

235, 251 (2d Cir. 1998) (“When a witness’s credibility has

already been substantially called into question in the same

respects by other evidence, additional impeachment evidence will

generally be immaterial and will not provide the basis for a

Brady claim.”).

Because the Sindelar interview notes were not suppressed

and the investigation summary was not material, the district

court committed no error in denying George’s motion for a new

trial. 1

1
We need not consider George’s argument that the
district court improperly considered the materiality of the
documents in isolation, rather than considering the cumulative
materiality of all the documents. See, e.g., United States v.
Ellis, 121 F.3d 908, 916 (4th Cir. 1997). Because the Sindelar
interview notes were not suppressed, the question of materiality
arises only as to the investigation summary.

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 III.

We turn now to George’s challenges to the sentence imposed

by the district court.

A.

George first contends that the district court’s explanation

of its drug-quantity determination was insufficient because the

court did not mention the testimony of Cindy Carter, much less

explain why it found her testimony less credible than that of

the Agent Lenhart. We disagree.

District courts are required to make findings as necessary

to resolve disputed factual issues that are relevant to

sentencing. See Fed. R. Crim. P. 32(i)(3); U.S.S.G. § 6A1.3.

Although the court need not set out its findings in great

detail, the findings must be sufficient to show how the court

ruled on the disputed matters and to permit “effective appellate

review of the sentence imposed.” United States v. Bolden, 325

F.3d 471, 497 (4th Cir. 2003).

When announcing its drug-quantity finding, the district

court stated that it found the trial testimony of the

government’s witnesses to be credible as to the nature of the

conspiracy and George’s involvement in it, and the court

likewise stated that it found Agent Lenhart’s testimony at the

sentencing hearing to be credible. Because Carter’s testimony

about her mother’s involvement in the prescription-forging

13
conspiracy was diametrically opposed to that of the government’s

witnesses, the court’s statement that it found Agent Lenhart and

the trial witnesses to be credible was an implicit but

nonetheless clear rejection of Carter’s testimony. We have

never required a sentencing court to explain in any detail why

it found the testimony of one witness more credible than

another, and the court’s explanation of its drug-quantity

finding otherwise was more than sufficient to permit meaningful

appellate review. See Bolden, 325 F.3d at 497 (“[T]he court

need not articulate findings as to disputed factual allegations

with minute specificity.” (internal quotation marks and

alteration omitted)); see also United States v. Boulware, 604

F.3d 832, 837 (4th Cir. 2010) (district court’s explanation of

its sentencing decision must “be sufficient to satisfy the

appellate court that the district court has considered the

parties’ arguments and has a reasoned basis for exercising its

own legal decisionmaking authority” (internal quotation marks

and alterations omitted)).

B.

George also challenges the substance of the district

court’s drug-quantity finding, arguing that the court erred by

including pills that were prescribed for legitimate medical

purposes.

14
 When determining the drug quantity attributable to George,

the district court rejected George’s argument that any pills

that were properly prescribed for legitimate medical needs

should be excluded from the calculation. In rejecting this

argument, the district court relied on out-of-circuit cases

holding that drugs possessed for personal use should be excluded

from the drug-quantity calculation in cases where the defendant

was convicted of distribution or possession with intent to

distribute, but should not be excluded if the defendant is

convicted of conspiracy to distribute. See, e.g., United States

v. Asch, 207 F.3d 1238, 1243-44 (10th Cir. 2000) (“Every circuit

to address the question has held that where a member of a

conspiracy to distribute drugs handles drugs both for personal

consumption and distribution in the course of the conspiracy,

the entire quantity of drugs handled is relevant conduct for

purposes of calculating the base offense level pursuant to the

Guidelines.”); United States v. Kipp, 10 F.3d 1463, 1465-66 (9th

Cir. 1993) (“Drugs possessed for mere personal use are not

relevant to the crime of possession with intent to distribute

because they are not part of the same course of conduct or

common scheme as drugs intended for distribution.” (internal

quotation marks omitted)). Because George was convicted of

conspiracy, the district court concluded that any pills

15
prescribed and intended for her personal use were properly

included in the drug-quantity calculation.

On appeal, George contends that the district court’s

reliance on the out-of-circuit cases was misplaced because those

cases involve “street” drugs, such as crack and marijuana, that

are illegal to possess in all circumstances. Under the

Sentencing Guidelines, a defendant convicted of conspiring to

distribute controlled substances “is accountable for all

quantities of contraband with which he was directly involved

and, in the case of a jointly undertaken criminal activity, all

reasonably foreseeable quantities of contraband that were within

the scope of the criminal activity that he jointly undertook.”

U.S.S.G. § 1B1.3 cmt. n.2 (emphasis added). George argues that

prescription medications, unlike street drugs, are not

contraband. And because the district court accepted the

evidence showing that George began taking pain medication to

treat genuine physical problems, George contends that the court

erred by refusing to exclude from the drug-quantity calculations

the pills that were prescribed to her for legitimate medical

purposes.

At the time of George’s sentencing, there were no published

opinions from this court addressing the personal-use question in

either the street-drug or prescription-drug context. We have,

however, recently concluded that the distinction between

16
conspiracy convictions and distribution convictions that has

been drawn in cases involving street drugs is not necessarily

applicable in cases involving prescription drugs. See United

States v. Bell, ____ F.3d ____, 2011 WL 6396482 (4th Cir. Dec.

21, 2011). Recognizing that “relevant conduct under the

Guidelines must be criminal conduct,” United States v. Dove, 247

F.3d 152, 155 (4th Cir. 2001), the court in Bell concluded that,

because prescription drugs can be legally possessed, “only those

quantities the defendant conspired or intended to possess

unlawfully, i.e., with intent to distribute” can be considered

relevant conduct. Bell, 2011 WL 6396482 at *10. The court

therefore held that if the government seeks to attribute to the

conspiracy the total quantity of drugs prescribed to a member of

the conspiracy, the government

must also provide evidence, and the district court
must make a finding, of something more -- for example
(1) that the conspiracy actually distributed a
particular amount; (2) that the person who was
prescribed the drug lawfully kept and consumed only a
portion (or none) of the prescribed amount; (3) that
the pills were obtained fraudulently and thus cannot
be considered to have been lawfully obtained and
possessed; or (4) that each and every pill obtained,
even if pursuant to a valid prescription, was obtained
with the intent that it would or could be distributed.

Id. at *11 (emphasis added; citation and internal quotation

marks omitted). The court believed that requiring anything less

would “create[] an unacceptably high risk that a defendant will

17
be punished for drug quantities a portion of which was lawfully

obtained, possessed and consumed.” Id. at *10.

Although the district court did not have the benefit of

Bell when sentencing George, it is now apparent that the

district court erred by relying on the street-drug line of cases

and attributing to George the full quantity of drugs without

evidence of or a finding of the “something more” required by

Bell. Id. at *11. As we explain below, however, the district

court’s error was harmless, and resentencing is therefore not

required.

Bell contemplates excluding from the drug-quantity

calculation those drugs that were “lawfully obtained, possessed

and consumed” under a “valid prescription.” Id. at *10, *11.

In this case, it is apparent that none of the drugs obtained

through the Sindelars’ prescription-forgery scheme were lawfully

obtained under a valid prescription. See 21 U.S.C. § 843(a)(3)

(making it unlawful “to acquire or obtain possession of a

controlled substance by misrepresentation, fraud, forgery,

deception, or subterfuge”); id. § 844(a) (making it unlawful “to

possess a controlled substance unless such substance was

obtained directly, or pursuant to a valid prescription or order,

from a practitioner, while acting in the course of his

professional practice”). A strong argument can likewise be made

that none of the drugs George obtained through her doctor-

18
shopping scheme were lawfully obtained. See, e.g., United

States v. Young, 992 F.2d 207, 210 (8th Cir. 1993) (concluding

that narcotics prescriptions that defendant obtained by

“misleading several different doctors” were not valid

prescriptions). Nonetheless, we will assume for purposes of

this opinion that all of the drugs obtained through George’s

doctor-shopping scheme should have been excluded from the drug-

quantity calculation.

The district court concluded that George should be held

responsible for a total of 43,578 pills equivalent to 9,976.4

kilograms of marijuana, which resulted in a base offense level

of 34. See U.S.S.G. § 2D1.1(c)(3) (assigning a base offense

level of 34 to cases involving the equivalent of at least 3,000

but less than 10,000 kilos of marijuana). The prescription-

forging portion of the conspiracy alone involved the equivalent

of 4,103 kilograms of marijuana, such that George’s base offense

level would remain 34 after the exclusion of all doctor-shopping

drugs. Because the exclusion of the doctor-shopping drugs from

the drug-quantity calculation results in no change to George’s

offense level, the district court’s error was harmless. See

United States v. Cabrera-Beltran, 660 F.3d 742, 756 (4th Cir.

2011).

19
 C.

Finally, George argues that the district court’s mistaken

view of her criminal record requires a remand for resentencing.

We disagree.

One of the reasons the district court gave for its variance

sentence was the substantial lapse of time since George’s last

conviction. The court stated that George’s last conviction

occurred in 1998, but the conviction actually occurred in 1988.

George argues that if the district court had realized that it

had been twenty-two years, not twelve years, since her last

conviction, the court might have imposed an even lower sentence,

and George therefore contends that the court’s error about the

date of her prior conviction requires resentencing. Because

George did not object or otherwise bring the correct date to the

court’s attention, we review this claim for plain error only.

Under plain-error review, George bears the burden of

establishing that the district court erred, that the error was

plain, and that the error affected her substantial rights. See,

e.g., United States v. Brack, 651 F.3d 388, 392 (4th Cir. 2011).

A sentencing error affects a defendant’s substantial rights if

there is a non-speculative basis in the record for concluding

that the court would have imposed a lower sentence but for the

error. See United States v. Knight, 606 F.3d 171, 178 (4th Cir.

2010); United States v. Hernandez, 603 F.3d 267, 273 (4th Cir.

20
2010). In this case, there is nothing in the record

affirmatively indicating that the court would have imposed a

lower sentence if it had realized that more time had elapsed

since George’s last conviction. Accordingly, even if we assume

that plain error occurred, George is not entitled to relief

because she cannot show that the error affected her substantial

rights. 2

IV.

For the foregoing reasons, we conclude that the district

court properly denied George’s motion for a new trial, and we

therefore affirm George’s convictions. And because we conclude

that the district court committed no reversible error in

sentencing, we likewise affirm George’s sentence.

AFFIRMED

2
George contends that the sentencing errors she has
identified require the district court to reconsider its
forfeiture order. Because we have rejected George’s sentencing
challenges, we likewise reject her forfeiture challenge.

21