United States v. Porfirio Orta-Rosario

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-4684

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

PORFIRIO ORTA-ROSARIO,

Defendant - Appellant.

No. 10-4750

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

KATHLEEN GIACOBBE,

Defendant - Appellant.

Appeals from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., Chief District Judge. (3:07-cr-00154-RJC-DSC-3; 3:07-cr-
00154-RJC-DSC-2)

Submitted: December 29, 2011 Decided: March 13, 2012

Before NIEMEYER, AGEE, and WYNN, Circuit Judges.
Affirmed in part; vacated and remanded in part by unpublished
per curiam opinion.

Angela Parrot, Acting Executive Director, FEDERAL DEFENDERS OF
WESTERN NORTH CAROLINA, INC., Ross H. Richardson, Peter Adolf,
Assistant Federal Defenders; Scott H. Gsell, Charlotte, North
Carolina, for Appellants. Anne Magee Tompkins, United States
Attorney, Melissa L. Rikard, Assistant United States Attorney,
Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

Defendants Kathleen Giacobbe (Giacobbe) and Porfirio

Orta-Rosario (Orta) were charged with conspiracy to distribute

Schedule III and IV controlled substances without a legitimate

medical purpose and outside the usual course of professional

practice, numerous substantive counts of distribution, and

aiding and abetting the same. Appellants were involved in an

online prescription medication service. Appellants raise

several challenges to their convictions, and Orta challenged his

sentence.

Orta, a medical doctor, and Giacobbe first assert that

the Controlled Substances Act (CSA) is impermissibly vague as

applied to them in violation of the Fifth Amendment right to due

process. The Appellants contend that there is no statutory

definition of “legitimate medical purpose” or “usual

professional practice.” Appellants argue that the factors the

Government relied on to demonstrate that their conduct was

without a legitimate medical purpose and outside of usual

professional practice were not sufficient to establish that an

ordinary person would understand that their conduct was

prohibited. They further contend that the Ryan Haight Act of

2008 (passed after their criminal conduct), 21 U.S.C.A. § 829(e)

(West Supp. 2011) (the Act), includes a requirement for patients

to see a medical professional in person before receiving a

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prescription, and the absence of such a requirement prior to

passage of the Act rendered the CSA impermissibly vague, and the

rule of lenity should apply to void their convictions.

In order to prosecute the Defendants for distribution

of controlled substances that Dr. Orta was authorized to

prescribe, the Government must prove that the controlled

substance was not prescribed only “for a legitimate medical

purpose by an individual practitioner acting in the usual course

of his professional practice.” 21 CFR § 1306.04(a). There are

no statutory definitions of “legitimate medical purpose” or

“usual course of professional practice.” The CSA does not

specifically define the range of acceptable medical practices.

Gonzales v. Oregon, 546 U.S. 243, 260 (2006).

Nonetheless, in Gonzales, the Supreme Court stated

that the CSA “bars doctors from using their prescription-writing

powers as a means to engage in illicit drug dealing and

trafficking as conventionally understood.” Id. at 270.

Further, we have held that “there are no specific guidelines

concerning what is required to support a conclusion that an

accused acted outside the usual course of professional practice.

Rather, courts must engage in a case-by-case analysis of

evidence to determine whether a reasonable inference of guilt

may be drawn from specific facts.” United States v. Singh, 54

F.3d 1182, 1187 (4th Cir. 1995). Several other Circuits have

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explicitly ruled that the CSA and the regulations are not void

for vagueness. See United States v. Birbragher, 603 F.3d 530

(8th Cir. 2010) (rejecting vagueness challenge in online

pharmacy case with very similar facts); United States v. Lovern,

590 F.3d 1095, 1103 (10th Cir. 2009) (rejecting vagueness

challenge by pharmacist in online pharmacy case with similar

fact situation); United States v. DeBoer, 966 F.2d 1066, 1068-69

(6th Cir. 1992) (language of § 841(a) is not void for vagueness

because it clearly defines a pharmacist’s responsibilities);

United States v. Rosenberg, 515 F.2d 190, 197-98 (9th Cir. 1974)

(finding phrase “in the course of professional practice” has

been in statutes since 1914 and courts have shown “ease and

consistency” in interpreting phrase); United States v. Collier,

478 F.2d 268, 272 (5th Cir. 1973 (“in the usual course of

professional practice” language not unconstitutionally vague).

In light of the statute, regulation, and case law, we conclude

that the Defendants had adequate notice that the

www.youronlinedoctor.com (YOD) prescription service that they

were involved in was unlawful. In addition, the jury found that

the Defendants had knowledge and intent.

In 2008, Congress passed the Ryan Haight Online

Pharmacy Consumer Protection Act of 2008, which went into effect

on April 15, 2009. The Act provides “[n]o controlled substance

that is a prescription drug . . . may be delivered, distributed,

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or dispensed by means of the Internet without a valid

prescription.” 21 U.S.C.A. § 829(e). A “valid prescription” is

defined as a prescription issued for a legitimate medical

purpose in the usual course of professional practice by a

practitioner who has conducted at least one in-person medical

evaluation. Id.

The Appellants contend that because Congress amended

the CSA after they operated YOD, the pre-Ryan Haight CSA was

unconstitutionally vague as to whether it prohibited the conduct

in this case. The Appellants also suggest that the rule of

lenity requires that their convictions be reversed. Appellants

do not have any case law to support their position. This same

challenge has been rejected by the Second Circuit in Birbragher

and in various district courts. See Birbragher, 603 F.3d at 490

(defendant’s “reliance on the Online Pharmacy Act . . . was

misplaced”); United States v. Quinones, 536 F. Supp.2d 267, 273

(E.D.N.Y. 2008) (although the Act requires a face to face

meeting between patient and doctor, “it does not follow that the

same conduct is not within the embrace of the current

prohibition of distribution outside the usual scope of

professional practice”); United States v. Lovin, 2009 WL3634194,

*5 (S.D.Cal. Oct. 30, 2009) (“The fact that the Senate has

passed a bill which would amend the CSA to explicitly prohibit

the conduct at issue in this case does not invalidate the

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government’s prosecution of defendants under the existing

provisions of the CSA”).

As the Government argues, not only were there no

physical examinations in this case, there were several other

violations, including permitting non-medical personnel to write

prescriptions with pre-signed blank prescription forms,

questionable dosage amounts, and liberal prescription refills

that were not based on legitimate medical purposes or based on

professional practices. Because there is no ambiguity in the

CSA or its application in this case, the rule of lenity does not

apply. The Appellants’ constitutional challenge to the CSA

based on vagueness fails.

Next, the Appellants challenge the district court’s

denial of their motion for a mistrial. Before trial, the

Appellants moved to exclude evidence of patient deaths allegedly

related to receiving medication from the YOD enterprise as

unfairly prejudicial and without sufficient evidence of

causation. The court granted the motion and enjoined the

Government from making any reference to the deaths. During the

trial, the Government called Dr. Mark Romanoff to testify as an

expert in the field of medical practice and pain management.

The AUSA asked Dr. Romanoff if he had “an opinion as to whether

the model used by Your Online Doctor constituted the legitimate

practice of medicine?” Dr. Romanoff responded, “[i]t was not

7
the practice of medicine at all. . . . In fact, as we have seen,

a lot of patients got into big trouble and some died because of

this.” Defense counsel objected immediately, and the court

sustained the objection and informed the jury to “disregard

completely the last statement of the witness.”

At the conclusion of Dr. Romanoff’s testimony, defense

counsel moved for a mistrial on the ground of deliberate

misconduct by the Government. The court denied the motion for a

mistrial, finding that the prohibited testimony was inadvertent

and the court had immediately instructed the jury to disregard

it. The court gave an additional limiting instruction when the

jury returned to the courtroom. The court recited the

Government’s question and Dr. Romanoff’s answer referencing the

deaths and then instructed the jury that “there’s absolutely no

evidence of any kind that any deaths were caused by the conduct

of any people in this case. That being so, you are to

completely disregard any comment about any such death.”

We review the denial of a motion for mistrial for an

abuse of discretion. United States v. Wallace, 515 F.3d 327,

330 (4th Cir. 2008); see also United States v. Dorlouis, 107

F.3d 248, 257 (4th Cir. 1997) (“[D]enial of a defendant’s motion

for a mistrial is within the sound discretion of the district

court and will be disturbed only under the most extraordinary of

circumstances.”). In order to show such an abuse of discretion,

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a defendant must show prejudice; no prejudice exists if the jury

could make individual guilt determinations by following the

court’s cautionary instructions. Wallace, 515 F.3d at 330. To

determine whether prejudice is present, the court “must evaluate

whether there is a reasonable probability that the jury’s

verdict was influenced by the material that improperly came

before it.” United States v. Seeright, 978 F.2d 842, 849 (4th

Cir. 1992) (internal quotation marks omitted).

We conclude that the district court did not abuse its

discretion in denying the Appellants’ motion for a mistrial.

The court issued a curative instruction immediately after the

objection and issued a second curative instruction that went so

far as to say that there was “absolutely no evidence of any kind

that any deaths were caused by the conduct of any people in this

case.” Further, one of the defendants, Christopher Otiko, was

found not guilty on all counts. Therefore, the jury was able to

make individualized determinations of guilt. See United

States v. Dorsey, 45 F.3d 809, 817 (4th Cir. 1995). As the

improper testimony did not influence the verdict, the district

court did not abuse its discretion in denying the Appellants’

motion for a mistrial.

The Appellants proffered a jury instruction on good

faith as a defense to the charges. The Appellants’ brief states

that Orta’s counsel requested that the following instruction be

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given, based on this court’s decision in United States v.

McIver, 470 F.3d 550, 556 (4th Cir. 2006): “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.”

The court determined that the best statement of the

law was from United States v. Hurwitz, 459 F.3d 463, 476 (4th

Cir. 2006). Consistent with Hurwitz, the district court

instructed the jury that the Defendants could not be convicted

if it found the Defendants acted in good faith. The court

instructed, “[g]ood faith is not merely a doctor[’s] sincere

intention towards the people who come to see him, but rather it

involves his sincerity in attempting to conduct himself in

accordance with a standard of practice generally recognized and

accepted in the United States.”

“A district court commits reversible error in refusing

to provide a proffered jury instruction only when the

instruction (1) was correct; (2) was not substantially covered

by the court's charge to the jury; and (3) dealt with some point

in the trial so important, that failure to give the requested

instruction seriously impaired the defendant's ability to

conduct his defense.” United States v. Passaro, 577 F.3d 207,

221 (4th Cir. 2009) (internal quotation marks omitted). We

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“review the district court’s decision to give or refuse to give

a jury instruction for abuse of discretion.” Id.

In Hurwitz, the court found that a district court

erred when it instructed a jury that it may not consider a

physician’s good faith when deciding whether to convict on a

drug trafficking charge and held that, in a § 841 prosecution

against a physician, the inquiry into the doctor’s good faith in

treating his patients is an objective one, rather than a

subjective one. Hurwitz, 459 at 476-79. Here, the district

court’s instruction was properly based on objective good faith,

and not Orta’s subjective belief that he may have been acting in

good faith. The district court’s instruction did not confuse

the standard of proof stating that it was beyond a reasonable

doubt as to whether the Defendants acted without a legitimate

medical purpose and outside the bounds of professional practice,

reiterating that the Government had to prove that beyond the

bounds of any legitimate practice was “exclusively criminal in

nature.” The court “describ[ed] the concept of medical

malpractice and the civil standard of care before categorically

stating that a criminal standard governed resolution of this

case.” McIver, 470 F.3d at 560.

Under these circumstances, we conclude that the court

did not err in refusing to give the requested instruction and

crafting its own good faith instruction. Even if Orta’s

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instruction had been a correct statement of the law, he failed

to demonstrate that it was not substantially covered by the

court’s charge to the jury. See Passaro, 577 F.3d at 221.

Moreover, while Orta argues that the failure to give the

requested instruction seriously impaired his ability to conduct

a defense, he was able to argue good faith to the jury. For

these reasons, the district court did not err in issuing its

good faith instruction.

Next, Appellants argue that the district court erred

in instructing the jury on willful blindness. The element of

knowledge in the crime of conspiracy may be satisfied by a

showing that a defendant acted with willful blindness, as

willful blindness is a form of constructive knowledge which

“allows the jury to impute the element of knowledge to the

defendant if the evidence indicates that he purposely closed his

eyes to avoid knowing what was taking place around him.” United

States v. Schnabel, 939 F.2d 197, 203 (4th Cir. 1991). Because

willful blindness serves as a proxy for knowledge, there is

nothing inconsistent in the determination that a defendant

knowingly was part of a conspiracy even where willfully blind to

the conspiracy’s existence and purpose. See McIver, 470 F.3d at

563-64 (noting that willful blindness is sufficient to establish

knowledge of a conspiracy). “[A]ll that is necessary is

evidence from which the jury could infer deliberate avoidance of

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knowledge.” United States v. Whittington, 26 F.3d 456, 463 (4th

Cir. 1994). If the evidence supports actual knowledge and

deliberate ignorance, a willful blindness instruction is proper.

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

Orta objected in the district court to the willful

blindness instruction, arguing that the instruction should only

be given sparingly where there is specific evidence that a

defendant actively avoided learning of facts. Orta argued that

the willful blindness instruction may lead the jury to convict

on something less than knowledge and the specific intent element

of the crime would be voided. The court denied the objection.

In his reply brief, Orta argues that a recent Supreme

Court decision regarding the willful blindness instruction

requires evidence of deliberate acts to avoid knowledge. See

Global-Tech Appliances, Inc. v. SEB S.A., 131 S. Ct. 2060

(2011). Orta asserts that the Global-Tech Court held that “the

defendant must take deliberate actions to avoid learning” of the

fact of an illegality or violation and that this applies to

criminal as well as civil willful blindness instructions. Id.

at 2070.

However, even in light of this recent case, Orta’s

actions were deliberate and calculated to avoid knowledge of the

illegal aspect of the enterprise. Orta actively ignored

numerous signs that the YOD prescriptions were issued and filled

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without a legitimate medical necessity and outside the usual

course of professional practice. We therefore conclude that the

court did not abuse its discretion in giving the willful

blindness instruction. Passaro, 577 F.3d at 221 (standard of

review).

Orta assigns error to the district court’s denial of

his motion for a four-level adjustment based on his minimal role

in the offenses pursuant to U.S. Sentencing Guidelines Manual

§ 3B1.2 (2006). In reviewing the district court’s calculations

under the Guidelines, we “review the district court’s legal

conclusions de novo and its factual findings for clear error.”

United States v. Manigan, 592 F.3d 621, 626 (4th Cir. 2010)

(internal quotation marks, alteration, and citation omitted).

We will “find clear error only if, on the entire evidence, [we

are] left with the definite and firm conviction that a mistake

has been committed.” Id. at 631 (internal quotation marks and

citation omitted).

Under USSG § 3B1.2(a), a district court shall decrease

the applicable offense level by four levels if the defendant was

a minimal participant in the criminal activity. The Guidelines

further provide that such a reduction is appropriate in a

situation where the defendant is “among the least culpable of

those involved in the conduct of the group.” USSG § 3B1.2 cmt.

n.4. In deciding whether the defendant played a minor or

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minimal role, the “critical inquiry is thus not just whether the

defendant has done fewer bad acts than his co-defendants, but

whether the defendant’s conduct is material or essential to

committing the offense.” United States v. Pratt, 239 F.3d 640,

646 (4th Cir. 2001) (internal quotation marks and citation

omitted). The defendant bears the burden of demonstrating that

he played a minor role in the offense by a preponderance of the

evidence. United States v. Akinkoye, 185 F.3d 192, 202 (4th

Cir. 1999).

The district court did not clearly err in refusing to

apply this reduction in offense level. The district court found

that Orta was the “without which factor” that allowed YOD to

operate and distribute controlled substances to thousands of

customers. Without Orta’s photocopied signature and DEA number,

the YOD business would not have authorized thousands of

prescriptions. Orta clearly delegated medical decision-making

to persons untrained and unlicensed in medical practice. The

district court found that Orta’s explanations were incredible

and that he was one of the more culpable conspirators. His

conduct was therefore “material or essential to committing the

offense,” and the court did not clearly err in rejecting the

role adjustment.

Finally, Orta argues that the district court erred by

requiring him to pay $1000 of his court appointed attorneys’

15
fees. Under the Criminal Justice Act, “[w]henever a United

States magistrate judge or the court finds that funds are

available for payment from or on behalf of a person furnished

representation,” the court may order that such funds be paid to

the court-appointed attorney or the United States Treasury as a

reimbursement for court-appointed representation. 18 U.S.C.A.

§ 3006A(f) (West Supp. 2011). Any order requiring the

reimbursement of attorneys’ fees under 18 U.S.C.A. § 3006A(f)

must be based on a finding by the district court “that there are

specific funds, assets, or asset streams (or the fixed right to

those funds, assets or asset streams) that are (1) identified by

the court and (2) available to the defendant for the repayment

of the court-appointed attorneys’ fees.” United States v.

Moore, 666 F.3d 313, 322 (4th Cir. 2012). The district court,

not having the benefit of Moore, made no such findings in this

case. For this reason, we vacate this portion of Orta’s

sentencing order only and remand for the court to reconsider in

light of Moore.

We therefore affirm the convictions and Giacobbe’s

sentence and Orta’s sentence with the exception of the portion

of Orta’s judgment ordering repayment of attorneys’ fees. We

dispense with oral argument because the facts and legal

16
contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

AFFIRMED IN PART;
VACATED AND REMANDED IN PART

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