United States v. Armstrong

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
November 21, 2008

No. 07-30286 Charles R. Fulbruge III
Clerk

UNITED STATES OF AMERICA

Plaintiff-Appellee
v.

CHERLYN R. ARMSTRONG, also known as Cherlyn Cookie Armstrong, also
known as Cherlyn Cookie Armstrong-Scherer, also known as Cherlyn Cookie
Prejean, also known as Cherlyn Armstrong Scherer Prejean; DR. SUZETTE
CULLINS

Defendants-Appellants

Appeals from the United States
District Court for the Eastern District of Louisiana

Before HIGGINBOTHAM, STEWART, and SOUTHWICK, Circuit Judges.
CARL E. STEWART, Circuit Judge:
Defendants Cherlyn Armstrong Scherer Prejean (“Armstrong”), the
Scherer Corporate Defendants,1 and Dr. Suzette Cullins (“Dr. Cullins” and
collectively, the “Defendants”) were convicted following a jury trial of offenses
relating to a scheme to illegally dispense certain controlled substances in

1
The Scherer Corporate Defendants are the following entities: Scherer Physicians
Weight Loss Center, Inc.; Scherer's Medical Center, Inc.; Scherer's Slidell Medical Center,
L.L.C.; Scherer's Gretna Medical Center, L.L.C.; Mia's Pharmacy, L.L.C.; Mia's Pharmacy
Slidell, L.L.C.; Bella Mia Holdings, L.L.C.; C.C. Armstrong Co., L.L.C.; and the Ballard Co.,
L.L.C.
 No. 07-30286 & No. 07-30320

violation of the Controlled Substances Act (the “CSA”), 21 U.S.C. §§ 846, 841(a).
Armstrong and Dr. Cullins appeal from their convictions under the CSA.
Armstrong also challenges certain evidentiary rulings that she argues tainted
her conviction for conspiracy to commit money laundering. Dr. Cullins appeals
the reasonableness of her sentence. For the following reasons, we AFFIRM in
part, REVERSE in part, and REMAND to the district court.

FACTUAL AND PROCEDURAL BACKGROUND
Armstrong, a Registered Nurse, was the owner and operator of weight loss
and pain management clinics and pharmacies, located in Slidell, Metairie, and,
at various times, Harvey or Gretna, Louisiana. Her family members provided
continual and active assistance in their operation. From approximately January
1998 to August 2000, the clinics’ focus was on weight loss, and prescriptions
were given for controlled-substance weight-loss drugs. In or around August
2000, the focus changed to pain management, and prescriptions were given for
controlled-substance pain management drugs. The three drugs (“trinity drugs”)
most often prescribed at the clinics and dispensed at the pharmacies during this
time included: (1) Hydrocodone;2 (2) Alprazolam or Diazepam;3 (3) and
Carisoprodol.4 Armstrong’s pharmacies only stocked and sold the generic

2
Hydrocodone is a Schedule III controlled substance sold under the names of Lortab,
Lorcet, and Vicodin.
3
Alprazolam is a Schedule IV controlled substance sold under the name Xanaz;
Diazepam is a Schedule IV controlled substance sold under the name of Valium.
4
Carisoprodol is a muscle relaxer sold under the name Soma and is not a controlled
substance.

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versions of the trinity drugs. The drugs have a high abuse potential and a high
illegal street market value.
After an investigation, agents of the Drug Enforcement Agency (“DEA”)
shut the clinics down in April 2005. Armstrong, the various corporate entities
which she established, including the pharmacies and clinics (“Corporate
Defendants”), and three physicians employed at the clinics5 were charged with
knowingly and intentionally conspiring to dispense Schedule III and IV
controlled substances in violation of the CSA. See 21 U.S.C. § 846. A
superseding indictment was later returned charging an additional twenty-six
specific instances (counts 2-27) in which Armstrong, the clinics, and the
pharmacies, aided and abetted by persons known and unknown–including Drs.
Cullins, Guenther, and DeLoach–knowingly and intentionally dispensed
controlled substances, outside the scope of professional practice and not for a
legitimate medical purpose, in violation of 21 U.S.C. § 841(a)6 and 18 U.S.C. § 2.

5
Dr. Joseph Guenther, Dr. Betty DeLoach, and Dr. Cullins.
6
Section 841(a) provides:

(a) Unlawful acts. Except as authorized by this subchapter, it shall be unlawful
for any person knowingly or intentionally–

(1) to manufacture, distribute, or dispense, or possess with intent to
manufacture, distribute, or dispense, a controlled substance[.]

21 U.S.C. § 841(a) (emphasis added). Those authorized by the CSA are described in § 822:

Persons registered by the Attorney General under this subchapter to . . . dispense
controlled substances . . . are authorized to . . . dispense such substances or
chemicals (including any such activity in the conduct of the research) to the
extent authorized by their registration and in conformity with the other
provisions of this subchapter.

21 U.S.C. § 822(b) (emphasis added). And finally, 21 C.F.R. § 1306.04, which proscribes the

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These alleged instances involved either an undercover DEA agent as a patient
or an actual patient as an informant at the direction of the DEA. Lastly,
Armstrong and the Corporate Defendants were charged with conspiring to
launder money involving the proceeds of the illegal drug activity, in violation of
18 U.S.C. § 1956(h) (count 28).
Prior to trial, two of the co-defendant physicians named in the superseding
indictment, Dr. Guenther and Dr. DeLoach, pled guilty to various charges. Dr.
Guenther pled guilty to all charged counts,7 and Dr. DeLoach pled guilty to
misprision of a felony in violation of 18 U.S.C. § 4. The remaining Defendants
–Armstrong, Dr. Cullins, and the Corporate Defendants–proceeded to trial. The
jury found all Defendants guilty of the conspiracy charged in count one and
various substantive counts charged in counts two through 27 of the superseding

conduct of those registered under the CSA to dispense controlled substances, states in relevant
part:
A prescription for a controlled substance to be effective must be issued for a
legitimate medical purpose by an individual practitioner acting in the usual
course of his professional practice. The responsibility for the proper prescribing
and dispensing of controlled substances is upon the prescribing practitioner, but
a corresponding responsibility rests with the pharmacist who fills the
prescription. An order purporting to be a prescription issued not in the usual
course of professional treatment or in legitimate and authorized research is not
a prescriptions within the meaning and intent of section 309 of the Act (21
U.S.C. § 829) and the person knowingly filling such a purported prescription, as
well as the person issuing it, shall be subject to the penalties provided for
violations of the provisions of law relating to controlled substances.

21 C.F.R. § 1306.04(a) (emphasis added).
7
Dr. Guenther pled guilty to count one, conspiracy to illegally dispense controlled
substances, and counts 13, 16, 21, and 25 for illegal dispensation of controlled substances.

4
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indictment.8 Armstrong and the Corporate Defendants were also found guilty on
count 28, conspiring to commit money laundering.
Following trial, Armstrong and Dr. Cullins filed a motion for judgment of
acquittal or in the alternative for a new trial, which was denied. The
Government filed sentencing memoranda seeking an upward departure based
on injuries to specific victims, including patients, their families, and the
community, because these victims were not taken into account by the Sentencing
Guidelines. Armstrong and Dr. Cullins responded. At the sentencing hearing,
the district court adopted the factual findings and recommendations of the pre-
sentencing report (“PSR”). Dr. Cullins did not object to the factual findings of
her PSR. The district court sentenced Dr. Cullins to sixty-month sentences for
each of her CSA convictions, to be served concurrently. Thereafter, the district
court also sentenced Armstrong to sixty-month concurrent sentences for each of
her CSA convictions, and a seventy-month concurrent sentence for conspiracy
to commit money laundering. Armstrong, Dr. Cullins, and Corporate
Defendants timely appealed. This Court dismissed Corporate Defendants’
appeal for want of prosecution on August 24, 2007.9 As a result, this Court
reviewed only the appeals of Armstrong and Dr. Cullins (together, the
“Appellants”).

8
Armstrong was convicted on all counts except counts 2, 18, and 24. Cullins was
convicted only on counts 3, 5, 7, 8, and 23.
9
On June 4, 2007, this Court dismissed Corporate Defendants’ appeal for want of
prosecution and subsequently reinstated it providing additional time to pay the docketing fees.
The appeal was again dismissed for want of prosecution on August 24, 2007.

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ILLEGAL DISPENSATION OF CONTROLLED SUBSTANCES
I. Sufficiency of the Evidence
A. Lack of Expert Testimony
Armstrong and Dr. Cullins argue that because the Government failed to
present expert testimony regarding what the professional standard of care
should be for a physician prescribing controlled substances to chronic pain
patients, there was insufficient evidence for the jury to find beyond a reasonable
doubt that Appellants’ conduct was outside the course of professional conduct.
1. Standard of Review
In evaluating whether the evidence produced at trial is sufficient to
support a jury conviction, this Court examines whether a rational jury, viewing
the evidence in the light most favorable to the prosecution, could have found the
essential elements of the offense to be satisfied beyond a reasonable doubt. See
United States v. Miles, 360 F.3d 472, 476-77 (5th Cir. 2004). In reviewing the
evidence, all reasonable inferences are drawn in favor of the jury’s verdict. Id.
This Court does not evaluate whether the jury’s verdict was correct, but rather,
whether the jury’s decision was rational. Id. If the evidence “gives ‘equal or
nearly equal circumstantial support to a theory of guilt or innocence, we must
reverse the conviction, as under these circumstances a reasonable jury must
necessarily entertain a reasonable doubt.’” United States v. Rivera, 295 F.3d 461,
466 (5th Cir. 2002) (internal citations omitted).
2. Discussion
The evidence presented at trial, viewed in the light most favorable to the
Government, supports the jury’s guilty verdicts as to Armstrong and Dr. Cullins
on the conspiracy charge under § 846 (count one) and on the substantive

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violations under § 841 (counts 2-27). Even without expert testimony, the
Government demonstrated at trial that Armstrong and her co-conspirators
organized and ran a continuous scheme of delivering controlled substances to a
high volume of individuals for profit rather than a valid medical purpose.
Although Armstrong and Dr. Cullins argue that the Government did not
meet its evidentiary burden because it did not put on expert testimony, “expert
testimony is not always required in order to show that a physician is acting for
other than proper medical purposes [in violation of § 841].” United States v.
Chin, 795 F.2d 496, 503 (5th Cir. 1986) (citing United States v. Rosen, 582 F.2d
1032, 1037 n.10 (5th Cir. 1978)). While expert testimony may be both
permissible and useful, a jury can reasonably find that a doctor prescribed
controlled substances not in the usual course of professional practice or for other
than a legitimate medical purpose from adequate lay witness evidence
surrounding the facts and circumstances of the prescriptions. United States v.
Rogers, 609 F.2d 834, 839 (5th Cir. 1980). There are § 841 cases in which the
trier of fact does not need outside, specialized knowledge to understand the
evidence or determine the facts.10 See United States v. Word, 806 F.2d 658, 663-
64 (6th Cir. 1986) (finding that expert testimony about the usual course of
professional conduct and legitimate medical purposes may help a jury, it was not
necessary on the facts of the case on appeal); United States v. Smurthwaite, 590
F.2d 889, 892 (10th Cir. 1979) (finding expert testimony unnecessary to prove
prescriptions were outside of professional practice where evidence included visits

10
The Federal Rules of Evidence instruct that expert testimony is not automatically
admitted, but only when “scientific, technical, or other specialized knowledge will assist the
trier of fact to understand the evidence or determine a fact issue.” FED. R. EVID. 702
(emphasis added).

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less than five minutes in length, charging patients per prescriptions, little or no
physical examination of patients at initial or follow-up visits, and defendant had
some knowledge that prescriptions pills were used for parties rather than
weight-loss); United States v. Larson, 507 F.2d 385, 387 (9th Cir. 1974) (similar).
Jurors have had a wide variety of their own experiences in doctors’ care over
their lives, thus and expert testimony is not necessarily required for jurors to
rationally conclude that seeing patients for as little as two or three minutes
before prescribing powerful narcotics is not in the usual course of professional
conduct.
There are also undoubtably situations where evidence as to the usual
course of professional conduct might be essential proof of the Government’s case.
But here there is ample evidence of conduct outside the usual course of any
professional practice and/or without medical purpose. Specifically, the
Government presented evidence of: (1) long-term rather than short-term
treatment, which conflicted with the clinics’ own medical guidelines regarding
chronic pain management;11 (2) an extremely high volume of patients seen each
day (as many as 300 patients in a four-to-six hour time frame); (3) short
durations for patient visits;12 (4) a lack of individualization of the prescriptions;13

11
Other clear violations of the clinics’ own policies found in the patient files include:
failing to conduct drug and urine tests on any patients, refusing to discuss drug addiction with
families attempting to intervene, and illegal filling of prescriptions by Armstrong’s pharmacies
before the issue date on the prescription.
12
Dr. Cullins wrote 78% of the trinity drug prescriptions for two weeks in January and
two days in April 2005, working only fifty-four hours and averaging no more than ninety-nine
seconds per patient.
13
On almost every occasion, physicians employed by Armstrong prescribed the same
dosage units of the trinity drugs–90 Hydrocodone, 90 Soma, and 30 Xanax or Valium.

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(5) prescriptions prepared in advance requiring only the doctor’s signature; (6)
phony pre-printed doctor’s medical comments placed in patient files; (7) a lack
of meaningful physical examination on initial and repeat visits;14 (8) a lack of
required documentation of a physical injury; (9) false documentation and
outdated MRIs presented by patients and accepted by treating physicians who
continued to dispense the trinity drugs; (10) sham physical therapy sessions;15
(11) a cash-only payment policy; and (12) clinic-hopping among Armstrong’s
clinics.16 Dr. Guenther also testified that each time he attempted to discuss
clinic problems with Armstrong, such as the lack of physical therapy or clinic-
hopping, Armstrong told him that she would “take care of it,” although no
changes were made, and on one such occasion Armstrong suggested Dr.
Guenther simply “stop taking notes.” Such evidence demonstrates conduct
outside of the usual course of professional practice.
And although the Government failed to present expert testimony
regarding the recognized practices of chronic pain management facilities, the
jury did hear from fact witnesses about their discomfort with the clinics’
operations. Dr. Hope Ewing testified that within an hour of meeting Armstrong
about bringing her pain management patients to the clinics, she had a “strong
feeling that this was not a suitable place for pain management,” because she was

14
DEA informant Nicole Buckeridge testified about her twenty visits to the clinic when
she wore a recording device, and the grand jury heard the pertinent parts of her visits where
practically no exam was conducted.
15
Physical therapy sessions, if given, would last two to five minutes and consist of
nothing more than sitting in a vibrating chair.
16
Clinic-hopping effectively permitted patients to acquire a subsequent fourteen-day
supply of the trinity drugs before their previous fourteen-day supply had run out.

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told that she would have to see six to seven patients an hour, which she believed
was insufficient for pain management. The Government also presented
testimony of two physicians detailing the irregularities that caused them to stop
working at the clinics. Dr. Michael Hunter, who quit after only a month at the
clinics, stated that Armstrong told him that she gave prescriptions to patients
because they expected to receive them. After seeing Armstrong in the parking
lot exchanging money with a patient for whom he had refused to write a
prescription, Dr. Hunter believed that patients were getting drugs without
seeing a doctor. Dr. Gilbert Mason, who departed after six weeks, testified that
he felt pressured by Armstrong to write prescriptions and to see more patients.17
Additionally, Dr. Cullins admitted at trial that she had: (1) made poor
medical judgments; (2) identified patients as “clinic hoppers”; (3) issued multiple
prescriptions for overlapping treatment periods to patients; (4) violated the
Louisiana Pain Management Standards; and (5) been warned in March by
Armstrong that the DEA might be sending in undercover agents since it had
publicly shut down some other pain clinics. Despite having previously caught
DEA informant Buckeridge “clinic hopping” and noting the word “jumper”
multiple times in the clinics’ files, Dr. Cullins continued to see Buckeridge and
write her trinity drug prescriptions. Dr. Cullins even signed two post-dated
prescriptions, seized from one of the pharmacies on April 11, 2005. The
prescriptions purported to have been written April 23, 2005, but were filled by

17
Armstrong relies on the two expert witnesses that she presented at trial who opined
that her conduct was not outside the scope of professional pain management to argue that the
jury could not have convicted her of illegal dispensation. Although an expert’s opinion as to
an ultimate fact issue may be helpful, the jury was instructed that it is not required to follow
the opinions of the experts who testify. The defense presented its own expert testimony as to
the appropriateness of the professional conduct at issue, and the jury was not persuaded.

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the pharmacy on April 9, 2005. Further, an analysis of prescriptions written by
Dr. Cullins was presented to the jury. It showed that Dr. Cullins was seeing and
prescribing the trinity drugs for several hundred patients a day, with a high of
302 in one day. Although Dr. Cullins offered explanations for her conduct, the
jury was entitled to reject most of her explanations.18
Yet Armstrong and Dr. Cullins contend that in this case expert testimony
was necessary because the facts and circumstances surrounding the
prescriptions could not establish that they acted outside the scope of professional
practice in dispensing the controlled substances. Appellants’ reliance on two
cases from other circuits, United States v. Bek, 493 F.3d 790 (7th Cir. 2007), and
United States v. Cuong, 18 F.3d 1132 (4th Cir. 1994), as support for this
proposition is misplaced. In Bek, the Seventh Circuit addressed a sufficiency of
the evidence challenge to convictions for illegally dispensing controlled
substances to three deceased patients because they were unavailable to testify
at trial. Bek, 493 F.3d at 799. That court reversed only one substantive count
where the Government did not present expert testimony, medical records, or
other evidence regarding the deceased patient’s condition or the doctor’s
treatment of her. Id. In fact, the court recited the evidence presented that it
considered sufficient to satisfy the criminal standard to convict a practitioner
under § 841(a)(1), reflecting many of the same facts in the present case, such as
uniform and careless medical exams and a disregard for signs of drug abuse. See

18
Dr. Cullins was convicted on five substantive counts and acquitted on five others.
Also, the jury was given a deliberate blindness instruction. To the extent that Dr. Cullins
argues that she was unaware of certain practices at the clinics and that Armstrong failed to
relay the warnings from patients’ family members regarding drug addictions, the jury could
have reasonably concluded that Dr. Cullins deliberately turned a blind eye to it all.

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id. Similarly in Cuong, the Fourth Circuit reversed multiple § 841 convictions
where the Government failed to present testimony from any of the patients to
whom the illegal dispensations were made. 18 F.3d at 1142-43.
Thus, Bek and Cuong propose that evidence regarding the particular
patient visit or treatment giving rise to the § 841 charge should be presented at
trial in order for a conviction on the charge to withstand a motion for acquittal.
See id. In this case, all of the substantive § 841 counts (counts 2-27) were based
on occasions in which practitioners dispensed controlled substances to either
DEA informant Buckeridge or undercover DEA Agent David Gauthreaux.
Because both testified at trial as to each of their clinic visits and the treatment
they received, recordings of the visits with Dr. Cullins were played for the jury,
and medical records were introduced into evidence respecting counts 2-27, the
reasoning of neither Bek nor Cuong would require acquittal.
Therefore, we are not persuaded that expert testimony was required to
establish criminal liability on the facts of this case.
B. Non-Registrant’s Guilt for Substantive Violations
Armstrong argues that counts 2-27 must fail because she is not registered
to dispense controlled substances under the CSA and therefore cannot be held
liable as a principal for substantively violating § 841. In response, the
Government contends that the jury convictions should stand with Armstrong
charged and convicted as both a principal and an aider and abetter. The
Government also asserts that because Armstrong was a nurse during the
conspiracy, she meets the definition of “practitioner” under the CSA and could
be prosecuted for illegal dispensing without relying on the conduct of a
registrant to establish liability.

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1. Standard of Review
We review the sufficiency of an indictment de novo. United States v.
Lucas, 516 F.3d 316, 342 (5th Cir. 2008). Again, we evaluate the sufficiency of
evidence supporting a jury conviction by determining whether a rational jury,
viewing the evidence in the light most favorable to the prosecution, could have
found the essential elements of the offense to be satisfied beyond a reasonable
doubt. See Miles, 360 F.3d at 476-77.
2. Discussion
Armstrong was indicted on twenty-six counts of substantively violating
§ 841 of the CSA. Specifically, it was charged that she, along with her clinics
and pharmacies, aided and abetted by the registered physicians she employed,
illegally dispensed controlled substances outside the scope of professional
practice. Section 841 states: “Except as authorized by this subchapter, it shall
be unlawful for any person knowingly or intentionally . . . to manufacture,
distribute, or dispense, or possess with intent to manufacture, distribute, or
dispense, a controlled substance.” 21 U.S.C. § 841 (emphasis added). The basic
proscription in § 841 applies to “any person” except those “authorized by this
subchapter” such as physicians registered with the Attorney General pursuant
to 21 U.S.C. § 822. The Supreme Court in United States v. Moore limited the
scope of the § 841 exception by holding that an authorized physician who issues
prescriptions outside the usual course of professional practice is subject to
punishment under § 841(a)(1) just as any other “drug pusher.” Moore, 423 U.S.
122, 138, 142-43 (1975). Thus, Armstrong contends that a charge for dispensing
controlled substances outside the scope of professional practice only applies
against registered physicians. Armstrong argues that because she was charged

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with illegally dispensing, and she is not a physician registered under the CSA,
the substantive counts of the indictment fail.
Armstrong argues that the law against dispensing applies only to
registered physicians, citing United States v. Albert, 675 F.2d 712 (5th Cir.
1982). In Albert, this Court rejected the argument that laypersons could not
conspire to dispense drugs illegally because they were not able to dispense drugs
in the first instance, relying on the rule that a “person may be guilty of
conspiring although incapable or committing the substantive offense.” Id. at
715. Although this Court in Albert appeared to accept the assertion that the law
against dispensing applies only to medical practitioners, id. (“the [co-conspirator
laypersons] need not themselves be able to dispense drugs”), its dicta is not
controlling. However, an examination of the CSA definitions of “dispense,”
“distribute,” “practitioner,” and “administer,”19 causes us to reject the
Government’s assertion that Armstrong may be convicted as a principal under

19
“Dispense” is defined as:

to deliver a controlled substance to an ultimate user or research subject
by, or pursuant to the lawful order of, a practitioner, including the
prescribing and administering of a controlled substance and the
packaging, labeling or compounding necessary to prepare the substance
for such delivery. The term ‘dispenser’ means a practitioner who so
delivers a controlled substance to an ultimate user or research subject.

21 U.S.C. § 802(10). In contrast, “distribute” means: “to deliver (other than by administering
or dispensing) a controlled substance or a listed chemical.” 21 U.S.C. § 802(11). “Practitioner”
refers to “a physician . . . pharmacy . . . or other person licensed, registered, or otherwise
permitted by the United States or the jurisdiction in which he practices or does research, to
distribute, dispense, . . [or] administer . . . a controlled substance in the course of professional
practice or research.” § 802(21). Finally, “administer” means “the direct application of a
controlled substance to the body of a patient . . . by – (A) a practitioner (or, in his presence, by
his authorized agent), or (B) the patient . . . at the direction and in the presence of the
practitioner . . .” § 802(2).

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§ 841. The logical reading of the statutory definitions of “dispense” and
“distribute” that led this Court in United States v. Leigh to determine a doctor
writing illegal prescriptions must be charged with dispensing rather than
distributing, counsels that a non-registrant who does not write prescriptions but
otherwise acts to provide drugs would not properly be charged with dispensing
rather than distributing. See Leigh, 487 F.2d 206 (5th Cir. 1973) (holding
reaffirmed by United States v. Harrison, 628 F.2d 929 (5th Cir. 1980)).
On each of the substantive counts, Armstrong was charged and convicted
pursuant to both 21 U.S.C. § 841(a) and 18 U.S.C. § 2, as both a principal and
an aider and abettor, or–the more correctly descriptive in this case–a
commander or inducer. See Adam H. Kurland, To “Aid, Abet, Counsel,
Command, Induce, or Procure the Commission of an Offense”: A Critique of
Federal Aiding and Abetting Principles, 57 S.C. L. Rev. 85, 87 (2005) (discussing
the confusion caused by using the traditional phrase “aid and abet” to describe
conduct captured by 18 U.S.C. § 2’s extension of liability to those who cause
illegal acts to be done). Section 2(b) states: “Whoever willfully causes an act to
be done which if directly performed by him or another would be an offense
against the United States, is punishable as a principal.” 18 U.S.C. § 2(b)
(emphasis added). The historical and statutory note for § 2 further states that
“[o]ne who puts in motion or assists in the illegal enterprise or causes the
commission of an indispensable element of the offense by an innocent agent or
instrumentality, is guilty as a principal even though he intentionally refrained
from the direct act constituting the completed offense.” Thus pursuant to § 2(b)
Armstrong, a non-registrant, may be convicted for either “aiding and abetting”
or “willfully causing” the dispensing of controlled substances beyond the scope

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of professional practice. The evidence must prove that Armstrong had the
mental state necessary to violate the underlying criminal statute and that she
willfully caused another to commit the necessary act. See United States v. Levy,
969 F.2d 136, 141 (5th Cir. 1992) (noting that § 2(b) does not require shared
criminal intent; only the defendant charged need have criminal intent, and the
individual whom defendant caused to perform the criminal act may be innocent).
Because Dr. DeLoach and Dr. Guenther were charged with illegal
dispensing but entered plea bargains with the Government and did not go to
trial, Armstrong was convicted on twelve counts (counts 4, 6, 9-10, 12-13, 15-16,
19, 21, and 25-26) where the registrant who was charged was not tried.
Examining the record, there is evidence sufficient for a rational jury to have
convicted Armstrong for these counts under 18 U.S.C. § 2 regardless of whether
a non-registrant may be convicted of illegally dispensing controlled substances.20
See United States v. Neal, 951 F.2d 630, 633 (5th Cir. 1992) (“Aiding and
abetting is not a separate offense, but it is an alternative charge in every
indictment, whether explicit or implicit.”); United States v. Smith, 584 F.2d 731,
734 (5th Cir. 1978) (stating that it is “beyond controversy, [that pursuant to
§ 2(b)] the accused may be convicted as causer, even though not legally capable
of personally committing the act forbidden by a Federal statute”). The evidence
supported a jury conclusion that the prescriptions in those counts were in fact
issued without a legitimate medical purpose or beyond the scope of professional
practice, and that Armstrong aided or induced the writing of such prescriptions.

20
Armstrong’s convictions for those counts (3, 5, 7, 8, 22 and 23) where the charged
doctor (or in count 22, the charged pharmacy) was convicted present no issue because the jury
convicted all charged with membership in the conspiracy and the district court gave the
Pinkerton jury instruction regarding co-conspirators’ liability for substantive counts.

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More problematic are five additional counts (11, 14, 17, 20, and 27) where
Armstrong was convicted but Dr. Cullins, the defendant physician, was tried and
acquitted. The facts and proceedings of this case stands in contrast to United
States v. Standefer, where the Supreme Court upheld petitioner’s conviction for
aiding and abetting even though the alleged principal had been acquitted. 447
U.S. 10, 25 (1980) (noting that symmetry of results may be intellectually
satisfying but is not required). The principal had been acquitted in an earlier
trial, and the jury instructions given in Standefer’s trial required the jury to find
his co-defendant guilty of the substantive offense in order to convict Standefer
of aiding and abetting him. Id. at 13 n.6, 20 n.14.
Here, however, the same jury that convicted Armstrong considered the
guilt of and acquitted Dr. Cullins. The jury concluded that there was at least
reasonable doubt whether the prescriptions Dr. Cullins wrote on those five
occasions were illegitimate. Thus, as to these counts, there was no crime for
Armstrong to have abetted. See Standefer, 447 U.S. at 20 n.14 (distinguishing
instant case, where the Government proved the co-defendant had committed the
substantive violation, from cases holding that “there can be no conviction for
aiding and abetting someone to do an innocent act”) (citing Shuttlesworth v.
Birmingham, 373 U.S. 262, 265 (1963)); cf. United States v. Yost, 24 F.3d 99, 104
(10th Cir. 1994) (“All that is required for a conviction based on 18 U.S.C. § 2 is
a finding that the [defendant] aided someone in committing the crime.”); United
States v. Martin, 747 F.2d 1404, 1407 (11th Cir. 1984) (noting that one must “aid
or abet or procure someone else to commit a substantive offense”).
Even on a theory that Armstrong caused or induced non-culpable Dr.
Cullins to write the prescriptions, it is whether they were written “without a

17
 No. 07-30286 & No. 07-30320

legitimate purpose” or “outside the course of professional conduct” that
differentiates dispensing from illegal dispensing. On these counts there is no
evidence that Armstrong signed the prescriptions herself or otherwise was
aware, even if Dr. Cullins was not, that there was no legitimate medical purpose
for the prescriptions. Cf. Smith, 584 F.2d at 734 (holding that defendant could
properly be convicted of failure to maintain records required of a licensed dealer,
when he, a non-licensed employee of the dealer, knowingly sold and delivered
firearms without noting the required personal information of the purchaser);
also Cuong, 18 F.3d at 1142 (“A defendant is entitled to individual consideration
of every count in an indictment by the jury and evidence sufficient to convict on
each count beyond a reasonable doubt, if he is to be convicted.”).
Considering that the jury found at least reasonable doubt that Dr. Cullins
had issued the prescriptions other than for a legitimate medical purpose in the
course of professional conduct, we find insufficient evidence for the jury to have
reasonably concluded on these charges that they in fact were illegitimate
prescriptions and Armstrong knew so.21 Therefore, we reverse Armstrong’s
convictions for counts 11, 14, 17, 20, and 27.22
II. Jury Charges
Armstrong and Dr. Cullins both challenge the sufficiency of the jury
instructions administered by the district court. Appellants argue that the

21
We do not decide if a non-registrant who did attempt to write prescriptions would be
liable for illegally dispensing as opposed to distributing. See United States v. Johnson, 831
F.2d 124 (6th Cir. 1987) (upholding conviction for distributing controlled substances by the
issuance of prescriptions outside the usual course of medical practice, even though defendant
was not a licensed physician).
22
Because of our disposition of Armstrong’s non-registrant arguments, we need not
address her constitutional vagueness challenge to the substantive CSA counts.

18
 No. 07-30286 & No. 07-30320

instructions did not correctly state the law, instead allowing conviction based on
a civil negligence standard and exposing Appellants to criminal conviction for
malpractice. Specifically, Appellants challenge the district court’s instruction
to the jury that it could find them guilty of violating 21 U.S.C. § 841 if they
prescribed controlled substances either without a valid medical purpose or
beyond the scope of professional practice. They assert that this disjunctive
standard effectively permitted conviction for negligence because it eliminated
the mens rea of the crime–“lack of a legitimate medical purpose”–and eviscerated
any good faith defense that Armstrong mounted. Finally, Dr. Cullins argues
that the good faith instruction did not cure the district court’s refusal to charge
in the conjunctive because (1) it applied only the substantive counts and not to
the conspiracy, and (2) it was couched as a defense rather than as an element of
the Government’s case.
In response, the Government argues that the instructions, taken as a
whole, properly apprised the jury of the applicable law. The Government
asserts that this Court has sustained illegal dispensing convictions using similar
phraseology adopted by the district court in this case. The Government points
to the fact that nowhere in the plain text of the three provisions that govern the
dispensing of controlled substances, 21 U.S.C. §§ 841 and 822(b) and 21 C.F.R.
§ 1306.04, is there a double statutory element permitting conviction only if a
prescription is issued for both no “legitimate medical purpose” and also outside
the “usual course of professional practice”. The Government also notes that
many courts, including the Fifth Circuit in United States v. Fuchs, 467 F.3d 889
(5th Cir. 2006), have recognized that the two clauses “legitimate medical

19
 No. 07-30286 & No. 07-30320

purpose” and “usual course of professional conduct” are often used
interchangeably.23
Finally, the Government notes that Dr. Cullins did not object to the good
faith jury instruction below, and that the instruction, which mirrored a good
faith instruction approved by this Court’s precedent, was not in plain error.
Moreover, the Government contends that because the jury charge properly
linked the substantive § 841 instruction back into the instruction for conspiracy,
the good faith charge in the former was legally sufficient.
A. Standard of Review
A properly objected-to instruction is reviewed for abuse of discretion.
Fuchs, 467 F.3d at 900. Whether an instruction misstated an element of a
statutory crime is reviewed de novo. United States v. Guidry, 406 F.3d 314, 321
(5th Cir. 2005) (citation omitted). In conducting that review, this Court
“consider[s] whether the jury instruction, taken as a whole, is a correct
statement of the law and whether it clearly instructs jurors as to the principles
of the law applicable to the factual issues confronting them.” Guidry, 406 F.3d
at 321 (emphasis added).24 A single instruction to a jury should not be judged

23
Armstrong also argues that the statute is ambiguous and thus the rule of lenity
requires the court to adopt the narrowest reading of the criminalized conduct, the conjunctive
liability instruction. The CSA provides a clear standard of liability, making the rule of lenity
inapplicable. Further, the rule of lenity has been routinely rejected in prosecutions under the
CSA. See Gore v. United States, 357 U.S. 386, 391 (1958).
24
This standard guides our analysis of an appeal for failure to give defendant’s
requested instruction as well as what jury instruction the district court did give. United States
v. Simmons, 374 F.3d 313, 319 (5th Cir. 2004) (appeal for failure to give defendant’s requested
defense theory instruction reviewed for whether the court’s charge, as a whole, was correct
statement of law and clearly instructed jurors as to the principles of law applicable to the
factual issues confronting them); but see United States v. Nguyen, 493 F.3d 613, 623 (5th Cir.
2007) (reviewing a district court’s refusal to include a defendant’s proposed jury instruction in

20
 No. 07-30286 & No. 07-30320

in isolation. Id. Any error in the jury instruction is subject to harmless error
review. United States v. Patterson, 431 F.3d 832, 837 (5th Cir. 2005); see FED.
R. CRIM. P. 52(a) (standard for harmless error review).
The failure to object timely to a jury instruction is subject to plain error
review. See Fuchs, 467 F.3d at 901 (the court will reverse only if (1) there was
an error, (2) that was clear and obvious, and (3) that affected the defendant’s
substantial rights causing a miscarriage of justice).
B. Discussion
Although a close question, the complete context of the jury charge properly
apprised the jurors of the correct legal standards and burdens to be met by the
prosecution. For the reasons discussed below, based on the relevant statutory
language, regulation, Moore, and Fifth Circuit precedent, we conclude that these
jury instructions, taken as a whole, provided a correct statement of the law.25
To convict the defendants of illegally dispensing controlled substances in
violation of 21 U.S.C. § 841(a)(1), the Government was required to prove “(1) that
[they] . . . dispensed a controlled substance, (2) that [they] acted knowingly and
intentionally, and (3) that [they] did so other than for a legitimate medical
purpose and in the usual course of [ ] professional practice.” United States v.

the charge for abuse of discretion). The inquiry is whether the jury charge, as a whole,
correctly and clearly instructed the jurors as to the law and issues before them.
25
Appellants assert that Fifth Circuit case law requires this “legitimate medical
purpose” element under United States v. Rosen, 582 F.2d 1032 (5th Cir. 1978) (“To convict [the
defendant doctor], it was necessary for the government to prove (1) that he distributed or
dispensed a controlled substance, (2) that he acted knowingly and intentionally, and (3) that
he did so other than for a legitimate medical purpose and in the usual course of his professional
practice.”) (emphasis added)). This argument is unpersuasive. See Fuchs, 467 F.3d at 900-01
(reviewing for plain error and holding there is no clearly established Fifth Circuit law requiring
that the Government prove no “legitimate medical purpose” in a § 841(a)(1) prosecution).

21
 No. 07-30286 & No. 07-30320

Norris, 780 F2.d 1207, 1209 (5th Cir. 1986) (quoting United States v. Rosen, 582
F.2d 1032, 1033 (5th Cir. 1978)). The third element is not expressly required by
the text of § 841, but relevant regulations provide that a controlled substance
can be dispensed by a prescription “issued for a legitimate medical purpose by
an individual practitioner acting in the usual course of his professional practice.”
21 C.F.R. § 1306.04(a).
The Supreme Court held in Moore, 423 U.S. at 138-43, that a registered
physician could be charged and convicted under § 841 of the CSA for drug
trafficking. Although the precise elements of a § 841 offense were not expressly
addressed in Moore, the Supreme Court rejected the “suggest[ion] that if a
registrant could be reached under § 841, he could not be prosecuted merely
because his activities fall outside the ‘usual course of practice.’” Id. at 139.
Under the Harrison Act, the predecessor to the CSA, “[p]hysicians who stepped
outside the bounds of professional practice could be prosecuted,” id. at 132, and
because Congress intended the CSA to strengthen rather than weaken prior
drug laws, a defendant physician could still be convicted under § 841 for conduct
that exceeded the bounds of professional practice. Id.
Moreover, a logical reading of 21 C.F.R. § 1306.04, the applicable
regulation, shows that liability is not conjunctive. See United States v. Hayes,
595 F.2d 258, 289 (5th Cir. 1979) (stating that § 1306.04 defines the
circumstances in which a registrant may be held to have violated the
proscription against manufacturing, distributing, or dispensing a controlled
substance contained in 21 U.S.C. § 841). The regulation states that for a
“prescription for a controlled substance to be effective[, it] must be issued for a
legitimate medical purpose by an individual practitioner acting in the usual

22
 No. 07-30286 & No. 07-30320

course of his professional practice.” 21 C.F.R. § 1306.04. Both prongs are
necessary for a prescription to be legitimate; one is not sufficient. Id. The
logical converse is that a practitioner is unauthorized to dispense a controlled
substance if the prescription either lacks a legitimate medical purpose or is
outside the usual course of professional practice. See id.; see also United States
v. Nelson, 383 F.3d 1227, 1233 (10th Cir. 2004) (holding that the converse of the
affirmative requirement of a medical purpose in usual course of practice would
be if either was missing, not if both were missing). In other words, knowingly
distributing prescriptions outside the course of professional practice is a
sufficient condition to convict a defendant under the criminal statutes relating
to controlled substances.26
Specifically in the instant case, the district court instructed the jury in
relevant part that:
the defendants are charged with multiple violations of [§ 841(a)(1)]
and [18 U.S.C. § 2], which provide that it is unlawful for any person
knowingly or intentionally to illegally dispense controlled
substances not for a legitimate medical purpose or outside the usual
course of professional practice . . . .
In order for you [sic] find each of the defendants guilty . . . the
government would have to prove the following elements beyond a
reasonable doubt as to each count . . . [f]irst, that the physician

26
In Gonzales v. Oregon, the Supreme Court determined that § 1306.04 “does little
more than restate the terms of the statute itself.” 546 U.S. 243, 257 (2006) (holding that the
CSA did not authorize the Attorney General to prohibit doctors from prescribing regulated
drugs for use in physician-assisted suicide). The “regulation uses the terms ‘legitimate medical
purpose’ and ‘the course of professional practice,’ but this just repeats two statutory phrases
and attempts to summarize the others.” Id.; see 21 U.S.C. § 802(21) (using the phrase “in the
course of professional practice” as part of the definition of “practitioner”); see 21 U.S.C.
§ 830(b)(3)(A)(ii) (reporting provision of CSA defines “valid prescription” as one that is issued
“for a legitimate medical purpose by an individual practitioner . . . acting in the usual course
of the practitioner’s professional practice”).

23
 No. 07-30286 & No. 07-30320

prescribed or dispensed the controlled substance alleged in the
indictment; [s]econd, that the physician did so knowingly and
intentionally; and [t]hird, that the physician prescribed or dispensed
the controlled substance either without a legitimate medical
purpose or outside the course of his or her professional practice.

The district court then explained that for a prescription to be authorized under
the CSA,
it must be issued for a legitimate medical purpose by an individual
acting in the usual course of his or her professional practice. Thus,
the final element the government must prove beyond a reasonable
doubt, is either that the physician prescribed or dispensed the drug
other than for a legitimate medical purpose or that the physician
dispensed the drug not in the usual course of medical practice.
A controlled substance is prescribed by a physician in the
usual course of professional practice, and therefore, lawfully, if the
substance is prescribed by him or her in good faith, medically
treating a patient in accordance with a standard of medical practice
generally recognized and accepted in the United States. Good faith
in this context means an honest effort to prescribe for a patient’s
condition in accordance with the standards of medical practice
generally recognized or accepted in this country.

(emphasis added). The district court then explicitly highlighted the broad
discretion afforded doctors in their medical practice:
In making a medical judgment concerning the right treatment
for an individual patient, physicians have discretion to choose
among a wide range of available options. Therefore, in determining
whether the defendant acted without a legitimate medical purpose,
you should examine all of the physician’s actions and the
circumstances surrounding them.

(emphasis added). This language describes lawful conduct as including a
doctor’s intentional effort to prescribe for the purpose of treating a patient’s
condition. As such, the district court essentially defined conduct “in the usual

24
 No. 07-30286 & No. 07-30320

course of professional practice” as conduct that is intended “for a legitimate
medical purpose.” Our reading of the jury charge is bolstered by the
immediately following section of instruction, which, including factors identified
in Rosen, 582 F.2d at 1036, and subsequent case law, lists several examples of
the “[t]ypes of behavior from which you [the jury] could infer that the physician
was acting without a legitimate medical purpose or outside the usual course of
professional practice.” That the district court instructed that the same
behavioral examples could support a conclusion that a doctor acted either
outside the scope of professional practice or without a legitimate medical purpose
indicates that the phrases, although listed disjunctively, were considered
interchangeable.
The jury instructions in this case reflect previously approved instructions.
Implicit in the Supreme Court’s reasoning in Moore is the acceptance of the
single prong of “outside the scope of a professional practice.” See Moore, 423 U.S.
at 138-43. It also suggested the propriety of a jury instruction stating that the
defendant could be found guilty if the jury found beyond a reasonable doubt that
he dispensed the controlled substance “other than in good faith for detoxification
in the usual course of a professional practice and in accordance with a standard
of medical practice generally recognized and accepted in the United States.” Id.
at 139 (emphasis added). Notably, while the jury instructions were not the issue
directly before the Moore court, they did not include the requirement that the
Government prove beyond a reasonable doubt that the physician prescribed the
controlled substance other than for a legitimate medical purpose. Id.
In holding that the law requires an objective standard to determine what
constitutes the “usual course of professional practice,” this Court’s dicta in

25
 No. 07-30286 & No. 07-30320

Norris, 780 F.2d at 1209, commented that an instruction to the jury to consider
“[w]hether [defendant] prescribed the drugs for what he subjectively considered
a legitimate medical purpose” was a “correct statement of law.” Id. What the
Norris court refers to as the instruction requiring “what he subjectively
considered a legitimate medical purpose” was that it was prescribed “lawfully,
if the substance is prescribed by him in good faith.” Id. at n.2. Furthermore,
Norris approved jury instructions substantially the same as those in this case.
See Norris, 780 F.2d at 1209 n.2 (containing language identical to the good faith
instruction given by the district court at Armstrong’s trial).27
In Fuchs, the defendant pharmacist challenged his convictions for
dispensing a controlled substance not in the usual course of professional practice
in violation of § 841(a)(1) based on the ground that “the government was
required to prove not only that he dispensed controlled substances outside the
usual course of professional practice but also that he did so without a legitimate
medical purpose.” Fuchs, 467 F.3d at 899. Neither the indictment nor the jury
instructions in Fuchs referred to “legitimate medical purpose.” Id. Under plain
error review, the court did not find the instructions problematic, recognizing that
this circuit’s previous case law listed as a single element of a § 841(a)(1) offense
that the dispensing be done “other than for a legitimate purpose and in the usual
course of his professional conduct.” Id. (citing Rosen, 582 F.2d at 1033). The
court in fact recognized that the phrases “without a legitimate medical reason”
and “beyond the course of professional practice” have been used interchangeably.

27
Moreover, because the jury charge properly linked the substantive § 841 instruction
back into the instruction for conspiracy, the good faith charge in the former was legally
sufficient. The jury had to find that Armstrong and Dr. Cullins knew the unlawful purpose
and joined in the conspiracy with the intent to further the unlawful purpose.

26
 No. 07-30286 & No. 07-30320

Id. (citing United States v. Outler, 659 F.2d 1306, 1308-09 (5th Cir. 1981) (“[A]
physician may be charged with a criminal violation of § 841(a) . . . whenever he
or she prescribes a controlled substance without a legitimate medical reason . . .
[T]he qualifying condition of the offense, i.e., the element of behavior beyond
professional practice . . . .”)). Thus, relying on Moore, the Fuchs court concluded
that “[u]nder current law, a medical professional ‘can be prosecuted under § 841
when [his] activities fall outside the usual course of professional practice.’”
Fuchs, 467 F.3d at 901 (quoting Moore, 423 U.S. at 124)).
Finally, looking to the holdings of other circuits that have addressed this
question, we find additional support for upholding the jury instructions in this
case. The Tenth Circuit addressed similar arguments in United States v. Nelson,
383 F.3d 1227, 1230-33 (10th Cir. 2004). The Nelson court found Moore
controlling on the point of whether a disjunctive jury instruction properly stated
the law,28 and relied on Moore and § 1306.04 to hold that the phrases may be
listed in the disjunctive in the trial court’s jury charge. See also United States
v. Bek, 493 F.3d 790, 798 (7th Cir. 2007) (approving disjunctive jury instructions;
noting Government, to convict practitioner, must prove he prescribed controlled
substances outside course of professional practice; opinion does not state that the
prosecution must also prove that it was without legitimate medical purpose);
United States v. Limberopoulos, 26 F.3d 245, 249-50 (1st Cir. 1994) (finding that
“well-established case law mak[es] clear that the statute [§ 841] applies to a
pharmacist’s (or physician’s) drug-dispensing activities so long as they fall
outside the usual course of professional practice.”). In addition, the Fourth

28
The Nelson court recognized that the issue of disjunctive jury instructions was “not
the precise focus of [the Moore] opinion,” but found Moore’s discussion of jury instructions in
the case to be part of the careful, central analysis of the opinion. Nelson, 383 F.3d at 1232.

27
 No. 07-30286 & No. 07-30320

Circuit has stated that requiring the prosecution to prove that the defendant
physician acted “for other than a legitimate medical purpose . . . plac[es] an even
heavier burden on the government than otherwise required to establish criminal
liability.” United States v. McIver, 470 F.3d 550, 559 (4th Cir. 2006) (citing
United States v. Alerre, 430 F.3d 681, 690-91 (4th Cir. 2005); Cuong, 18 F.3d at
1138).
Appellants urge this court to instead adopt the reasoning of the Ninth
Circuit in United States v. Feingold, 454 F.3d 1001 (9th Cir. 2006). That court
determined that “outside the scope of professional practice” was a mere
malpractice standard and that even intentional malpractice would be
inconsistent with Moore’s description of a doctor violating § 841(a) as one acting
as a drug pusher rather than a physician. Id. at 1010. Rather, the Feingold
court asserted that Moore requires that a doctor’s actions must completely
betray any semblance of legitimate medical treatment, and thus criminal
liability requires the higher showing that “the practitioner intentionally has
distributed controlled substances for no legitimate medical purpose and outside
the usual course of professional practice.” Id. (emphasis added). The court
continued by stating that the jury instructions cited and implicitly accepted in
Moore, as well as § 1306.04, support its interpretation of that standard. Id. at
1010-11. We are not persuaded by the reasoning of the Ninth Circuit in
Feingold. As discussed, the jury instructions implicitly approved by Moore
exclude any reference to medical purpose, and a logical reading of § 1306.04
supports the use of the disjunctive standard. Further, Feingold merely includes
the language of the jury instruction cited in Moore followed by a conclusory
statement that it “indicates that the jury could convict under § 841(a) if the

28
 No. 07-30286 & No. 07-30320

government proved that the practitioner intentionally prescribed drugs for no
legitimate medical purpose.”29 Id.
Armstrong and Dr. Cullins also argue that the legitimate medical purpose
prong encompasses the necessary mens rea element of a § 841 offense, and
without it, the doctor will be criminally convicted for malpractice. Appellants
are mistaken. The mens rea of a § 841 offense is encompassed in the second and
third element of the crime - whether the practitioner intentionally dispensed
controlled substances without a legitimate medical purpose or outside the scope
of professional practice. See Nelson, 383 F.3d at 1232-33. The charge as a whole
in this case, including the good faith instruction, and instruction on the
discretion afforded to doctors, made it clear that the jury had to make a finding
with respect to Appellants' state of mind. These instructions distinguish a § 841
prosecution from a mere civil malpractice suit where a plaintiff may prevail
regardless of a defendant doctor’s good faith intent to act within the scope of
medical practice. See McIver, 470 F.3d at 559-60 (finding that good faith is not
a defense to a claim of medical malpractice) (citations omitted). Furthermore,
the standard of proof–beyond a reasonable doubt–additionally protects
practitioners from being exposed to criminal convictions on a mere civil
standard. See United States v. Vamos, 797 F.2d 1146, 1153 (2d Cir. 1986)
(rejecting the assertion that the jury instructions in that case exposed the
defendant to criminal liability for nothing more than mere malpractice by
pointing out that “in a criminal prosecution [a defendant] may be found guilty

29
Feingold interprets the instruction in Moore, which refers to acting outside the scope
of recognized professional practice, as including the requirement of “other than for a legitimate
medical purpose.” Feingold, 454 F.3d at 1010-11. This implies, as other cases have explicitly
noted, that the phrases are understood interchangeably. See Nelson, 383 F.3d at 1231.

29
 No. 07-30286 & No. 07-30320

only upon proof beyond a reasonable doubt that he acted outside the scope of
medical practice”).
Finally, Armstrong and Dr. Cullins also argue that the jury instruction
regarding expert testimony compounded the error in instructing the jury that a
finding of conduct outside the usual course of professional practice sufficed to
convict under § 841.30 They did not object below, and we find no clear error in
the instruction.
Taken as a whole, the jury charge was a correct statement of law and
correctly presented the issues to the jury.31

CONSPIRACY TO COMMIT MONEY LAUNDERING
I. Evidentiary Issues

30
The district court instructed the jury that:

Expert testimony is not always required to show that a physician
is not acting for a legitimate medical purpose or in the usual
course of his or her professional practice. If any expert testimony
is offered, you are not bound by the expert testimony, and you
may instead consider all the facts and circumstances surrounding
the defendants’ prescribing practices as presented to you by other
evidence in the case.
31
Dr. Cullins also asserts that this court should adopt “no legitimate medical purpose”
as a separate element of the § 841 offense because Congress intended that conduct violating
§ 841 be more egregious than that violating § 842. However, whether a defendant’s conduct
precipitating a prosecution under § 841 also violates § 842 is not relevant. Moore, 423 U.S. at
134-38 (finding nothing in the statutory scheme or legislative history justifying a conclusion
that a registrant who may be prosecuted for the relatively minor offense of violating § 829 [i.e.,
a § 842 offense] is exempted from prosecution under § 841 for the greater offense of acting as
a drug “pusher”). Further, writing prescriptions without a legitimate medical purpose would
also violate § 842 because the relevant language in 21 C.F.R. § 1306.04 applies to both
provisions. See id. at 137 n.13.

30
 No. 07-30286 & No. 07-30320

Armstrong asserts that the district court abused its discretion by
permitting the Government, through its cross-examinations and closing
arguments, to argue to the jury that Armstrong and the Corporate Defendants
under-reported their taxable income. Armstrong claims that the Government
attempted to show that tax evasion was a motive for the alleged concealment of
income, despite the Government’s admission before trial that it had no evidence
of tax evasion. Armstrong contends that the jury’s verdict was tainted as a
consequence. The Government responds that the questioning at issue, regarding
the source of Armstrong’s unaccounted-for seized cash, was relevant to the
conspiracy to commit money laundering and to rebutting tax arguments initiated
by defense counsel. The Government further argues that there was no harm
because of its statement to the jury in closing argument that this was not a tax
case and the court’s instruction to the jury that the statements of attorneys were
not evidence.
The standard of review for alleged prejudicial admission of evidence is
abuse of discretion. United States v. Acosta, 763 F.2d 671, 693 (5th Cir. 1985).
While a district court has broad discretion regarding its decisions on both the
relevancy and admissibility of evidence, “evidence in criminal trials must be
strictly relevant to the particular offense charged.” United States v. Hays, 872
F.2d 582, 587 (5th Cir. 1989) (quoting Williams v. New York, 337 U.S. 241, 247
(1949)) (internal quotations omitted).
Armstrong initiated the issue of her tax reporting in an effort to establish
her credibility. In opening statements, Armstrong’s counsel informed the jury
of the substantial taxes that Armstrong paid from her clinics’ earnings, in an
admitted attempt to undercut any prosecution argument that the clinics had

31
 No. 07-30286 & No. 07-30320

concealed their income. The Government objected that “this is not a tax case.”
However, when the Government attempted to question Armstrong’s Certified
Public Accountant about whether certain sums of clinic income were accounted
for, Armstrong in turn objected. In so doing, counsel admitted putting
Armstrong’s tax payments at issue but argued that it was inappropriate for the
Government to continue questioning on the subject as it was not a tax evasion
case. The district court overruled Armstrong’s objection to the questioning.
The issue of whether Armstrong paid all income tax due was introduced
to the case by Armstrong. The Government was eliciting evidence both for its
case in chief, by demonstrating the possible concealment of income, as well as
rebutting the defense argument that all taxes had been paid. The record shows
that the district court rejected Armstrong’s objections to these questions after a
proper balancing of the appropriate factors under Rules 401 to 403 of the Federal
Rules of Evidence. Such questioning both went to the Government’s case in
chief, because it addressed concealment and money laundering, and to challenge
the defense explanation that defendants had reported all of the income. The
court noted that the Government’s analysis of Armstrong’s earnings revealed a
substantial cash stream, and evidence admitted at trial revealed a lack of
accountability of funds earned during the period of time in which the conspiracy
operated and showed that cash was used in multiple financial transactions with
no identifiable source. The district court did not abuse its discretion by
overruling the objection from Armstrong’s counsel and allowing the prosecution
to cross-examine Armstrong’s accountants regarding whether Armstrong’s
income was greater than the defense alleged.
Armstrong also challenges certain prosecution statements made during
closing arguments. Because Armstrong did not object to the comments at trial,

32
 No. 07-30286 & No. 07-30320

we review them for plain error. United States v. Burns, 526 F.3d 852, 858 (5th
Cir. 2008). Plain error exists if (1) there was error; (2) the error was clear and
obvious; and (3) the error affected a substantial right. Id.
Specifically, during its closing argument, the prosecution – after clearly
stating that the case was about illegal dispensing, not about tax – then
proceeded to speculate, from the daily receipts in evidence from one month in
2005 of over $20,000 income per day, as to an annual income that was $1.6
million greater than that reported by Armstrong and her husband for the
relevant year, questioning the source of the extra income. Viewing the
comments of the prosecutor in the context of the entire trial, including the tax
arguments presented by defense counsel to which it responded, and the court’s
cautionary instruction to the jury that attorneys’ statements were not evidence,
the prosecutor’s comments in closing argument do not constitute plain error. See
Burns, 526 F.3d at 858; United States v. Thomas, 12 F.3d 1350, 1367-68 (5th Cir.
1994).
II. Sufficiency of the Evidence
Armstrong contends that there was insufficient evidence supporting her
conviction for count 28, conspiracy to commit money laundering, because the
evidence did not prove that funds were concealed for an ill–designed purpose.
On count 28 of the superseding indictment Armstrong and the Corporate
Defendants were charged and convicted with conspiracy to launder money in

33
 No. 07-30286 & No. 07-30320

violation of §§ 1956(a)(1)(A)(I)32 (“promotional money laundering”), (a)(1)(B)(I)33
(“concealment money laundering”). Crucially, Armstrong does not challenge the
sufficiency of evidence presented at trial supporting a conviction for conspiring
to commit money laundering in violation of § 1956(a)(1)(A)(I) (“promotional
money laundering”).
To sustain a conviction for conspiracy to launder money under § 1956(h),
the Government must prove beyond a reasonable doubt that: (1) there was an
agreement between two or more persons to launder money; (2) the defendant
voluntarily agreed to join the conspiracy; and (3) one of the persons committed
an overt act in furtherance of the conspiracy. United States v. Wilson, 249 F.3d
366, 379 (5th Cir. 2001) (citation omitted). The text of § 1956(h) and the district
court’s jury charge plainly instruct that the Government only needs to prove a
voluntary agreement and an overt act in furtherance of either promotional
money laundering or concealment money laundering in order for the jury to
convict Armstrong on count 28.34 The Government was not required to prove a
conspiracy to commit both types of money laundering. Thus, even if we agreed
with Armstrong that there was insufficient evidence of a conspiracy to commit

32
Section 1956(a)(1)(A)(I), (“promotional money laundering”), makes it a crime to: (1)
conduct or attempt to conduct a financial transaction, (2) which the defendants knew involved
the proceeds of unlawful activity, and (3) with the intent to promote or further unlawful
activity. United States v. Miles, 360 F.3d 472, 477 (5th Cir. 2004).
33
Section 1956(a)(1)(B)(I), (“concealment money laundering”), makes it a crime for
anyone to knowingly use the proceeds of certain illegal activity to conceal or disguise the
nature, location, source, ownership, or control of such proceeds. United States v. Burns, 162
F.3d 840, 847 (5th Cir. 1988).
34
Section 1956(h) states that “[a]ny person who conspires to commit any offense defined
in this section . . . shall be subject to the same penalties as those prescribed for the offense the
commission of which was the object of the conspiracy.” 18 U.S.C. § 1956(h) (emphasis added).

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concealment money laundering, we could not reverse the conspiracy conviction
in count 28, because the unchallenged evidence supports the verdict of a
conspiracy to commit promotional money laundering. Armstrong’s conviction on
count 28 is affirmed.

DR. CULLINS’S SENTENCING
Dr. Cullins challenges the reasonableness of her sixty-month sentence,
arguing that the trial court erred in calculating an initial Sentencing Guidelines
range of forty-one to fifty-one months because it improperly included legitimate
prescriptions and drugs dispensed by the clinics before she began working there.
Dr. Cullins further argues that her sentence is unreasonable because it is
disproportionate to her culpability, particularly in light of Armstrong’s seventy-
month sentence.35
The Government responds that Dr. Cullins did not object to the factual
findings in the Presentence Investigation Report (“PSR”), which was adopted by
the district court. The Government asserts that the base offense level calculated
by the district court was correct and that a mere difference of sentences among
co-defendants does not constitute an abuse of discretion.
1. Standard of Review
The review of sentencing decisions is limited to determining whether they
are “reasonable.” Gall v. United States, 128 S. Ct. 586, 594 (2007). That process
of review is a bifurcated one. Id. We first examine whether the district court

35
Dr. Cullins also appeals her sentence insofar as it is based on conduct of which she
was acquitted, which she argues violated her Sixth Amendment right to a jury trial. This
argument is foreclosed by United States v. Valdez, 453 F.3d 252, 264 (5th Cir. 2006) (holding
that acquitted conduct can be considered at sentencing if proven by a preponderance of the
evidence), cert. denied, 127 S. Ct. 456 (2006).

35
 No. 07-30286 & No. 07-30320

committed any significant procedural error, such as: (1) failing to calculate (or
improperly calculating) the applicable Guidelines range; (2) treating the
Guidelines as mandatory; (3) failing to consider the 18 U.S.C. § 3553(a) factors;36
(4) determining a sentence based on clearly erroneous facts; or (5) failing to
adequately explain the chosen sentence, including an explanation for any
deviation from the Guidelines range. Id. at 597. Analyzing for procedural error,
the reviewing court examines the district court’s interpretation or application of
the Sentencing Guidelines de novo, and its factual findings for clear error.
United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). “There
is no clear error if the district court’s finding is plausible in light of the record as
a whole.” Id. (quoting United States v. Juarez-Duarte, 513 F.3d 204, 208 (5th
Cir. 2008)).
Next, assuming the district court’s decision is procedurally sound, we
consider the substantive reasonableness of the sentence. Gall, 128 S. Ct. at 597.
While a sentence within a properly-calculated Guidelines range enjoys a
presumption of reasonableness in this Circuit, Cisneros-Gutierrez, 517 F.3d at
766, a sentence that includes an upward or downward departure as allowed by
the Guidelines is reviewed for an abuse of discretion. See Gall, 128 S. Ct. at 597
(holding that absent a presumption of reasonableness, abuse of discretion is the
standard for reviewing sentences, whether Guideline or non-Guideline, for
substantive reasonableness). That the Court of Appeals “might reasonably have
concluded that a different sentence was appropriate” is an insufficient

36
Section 3553(a) lists seven factors that a sentencing court shall consider, preceded
by a general directive to “impose a sentence sufficient, but not greater than necessary, to
comply with the [general purposes of sentencing].” See § 3553(a) (2000 ed., Supp. V); Gall, 128
S.Ct. at 596 n.6.

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justification for reversal of the district court, because the sentencing judge is in
a superior position to evaluate the § 3553(a) factors, given that “[t]he judge sees
and hears the evidence, makes credibility determinations, has full knowledge of
the facts and gains insights not conveyed by the record.” Gall, 128 S. Ct. at 597
(internal quotations omitted).
2. Analysis
A district court should begin all sentencing proceedings by correctly
calculating the applicable Guidelines range. Gall, 128 S. Ct. at 596. At the
sentencing hearing, the district court adopted the factual findings of the Pre-
Sentencing Report (the “PSR”). Dr. Cullins stated that she had no objections to
those findings. The PSR stated that the usual prescription given to the clinics’
patients generally included three medications in the following dosage units for
a fourteen day period: 90 Lorcet;37 30 Xanax;38 and 90 Soma.39 The PSR also
stated that: (1) on most occasions, each doctor at the clinics often saw more than
eighty patients per day; (2) for certain doctors, that number of patients increased
to hundreds per day; and (3) at times the doctors, on average, saw one patient
every 3.3 minutes. The PSR specifically noted that Dr. Cullins was known as
the “in and out” lady because she wrote prescriptions so fast.40

37
Lorcet’s generic equivalent is Hydrocodone, a Schedule III controlled substance.
38
Xanax’s generic equivalent is Alprazolam, a Schedule IV controlled substance.
39
Soma’s generic equivalent is Carisprodol, an uncontrolled substance.
40
For example, it was noted in the PSR that on one day, Dr. Cullins saw 262 patients
within a six-hour timespan; that on many days, Cullins saw a patient every one to two
minutes; and that she prescribed more medications than the other two physicians indicted, Dr.
Guenther and Dr. DeLoach.

37
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The PSR calculated Dr. Cullins’s base offense level as 20, pursuant to
United States Sentencing Guidelines § 2D1.1(a) and (c)(10), based on her
responsibility in dispensing more than 40,000 dosage units of a Schedule III
substance. To find that Dr. Cullins, or her co-conspirators, illegally prescribed
40,000 dosage units requires finding 445 or more patient visits accompanied by
illegal Hydrocodone dispensations of typical dosage. At the rate that Dr. Cullins
and the other physicians wrote these prescriptions, it would take only six days
for one doctor at the clinic, seeing approximately 80 patients per day, to dispense
that amount of Hydrocodone. The evidence shows that Dr. Cullins wrote 302
such prescriptions in four hours of work at one clinic on April 9, 2005. In light
of the fact that Dr. Cullins worked at the clinic for over two years, was found
guilty of a conspiracy to dispense controlled substances, the district court’s
finding that at least 40,000 illegally dispensed doses of a Schedule III drug were
attributable to Dr. Cullins was plausible and did not constitute clear error.41
See United States v. Carbajal, 290 F.3d 277, 287 (5th Cir. 2002) (applying the
general rule that information in a PSR is presumed reliable and may be adopted
by the district court without further inquiry if the defendant fails to demonstrate
by rebuttal evidence that the information is untrue or unreliable).
We conclude that the district court committed no procedural error in
determining Dr. Cullins’s sentence. The Guidelines sentence range was correctly
calculated,42 and a review of the sentencing hearing transcript clearly shows that

41
Dr. Cullins's contention that she was held responsible for the same quantity of
illegally dispensed drugs as Armstrong because they shared the same base offense level is
erroneous. Armstrong also had a base offense level of 20, but the relevant provision
§ 2D1.1(c)(1) refers to “40,000 or more units of Schedule III substances.”
42
Dr. Cullins does not object to the two-level increase for her role in the offense, which
created a total offense level of 22. Combined with a criminal history category of I, the

38
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the district court did not treat the Guidelines as mandatory, and that it
considered the § 3553(a) factors, gave an individualized assessment, and
adequately explained the chosen sentence, including an explanation for imposing
an upward departure from the Guidelines range.
We now turn to Dr. Cullins’s argument that her sentence was nonetheless
substantively unreasonable, particularly in comparison to the sentence meted
out to Armstrong. Cullins argues, based on the proportionality principle of 18
U.S.C. § 3553(a)(6), that she should have been given a shorter sentence because
Armstrong was more culpable and received a sentence only ten months longer.
Reviewing the reasonableness of the sentence imposed by the district court, an
upward departure from the initial calculation of a Guidelines range, we do not
find it to be abuse of discretion. See Smith, 440 F.3d at 707.
At the sentencing hearing, the court noted the substantial number of
letters received on Dr. Cullins’s behalf and heard defense counsel describe Dr.
Cullins’s years of service as a doctor and lay minister. Acknowledging these
mitigation arguments, the district court discussed Dr. Cullins’s position of trust
as a doctor and the special role that doctors have in society, tending to people
when they are vulnerable, and starting with the command to do no harm.
Finding that Dr. Cullins’s conduct in her two years at the clinic violated this
command and trust, the district court concluded that her patients and society had
a right to expect better. The district court agreed with the Government that the
trial testimony and facts of the case revealed substantial harm to individual
victims and the public’s faith in the healthcare delivery system. After this careful
considered Cullins’s conduct and the relevant § 3553(a) factors, the district court

recommended Guidelines range was forty-one to fifty-one months in prison.

39
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imposed a sentence of sixty months, an upward departure from the Guidelines
range but within the statutory range.
Nonetheless, Cullins argues that her sixty-month sentence is excessive in
relation to Armstrong’s seventy-month sentence, and therefore that the district
court failed to consider the need to avoid unwarranted sentencing disparities.
See § 3553(a)(6). Dr. Cullins is correct that identifying “a case in which a
similarly-situated defendant received a lesser sentence” is one way that a
defendant can establish the existence an unwarranted disparity. See Smith, 440
F.3d at 709. However, we are not persuaded that the comparison of the co-
defendants’ sentences in this case shows an abuse of discretion. Armstrong, the
acknowledged mastermind, did receive a longer sentence that Dr. Cullins. Dr.
Cullins contends that her conduct was less egregious than Armstrong’s and
warrants a greater sentencing differential than the ten-month difference in
length between Armstrong’s sentence and her own. The district court correctly
noted that Armstrong is a non-registrant and could not have carried out the
enterprise without doctors like Dr. Cullins who worked at the clinics and wrote
all of the prescriptions.
Dr. Cullins has not demonstrated that, considering this significant
difference in situation between the defendants, the sentence imposed is
disproportionate to her culpability such that the district court abused its
discretion. See Cisneros-Gutierrez, 517 F.3d at 767 (rejecting argument that
defendant’s sentence was unreasonable because his brother, more deeply involved
in the conspiracy, received a sentence ten years shorter, noting: “Defendant also
fails to consider that his microcosmic approach to sentencing disparities, while

40
 No. 07-30286 & No. 07-30320

relevant, would create its own set of disparities with other similarly situated
defendants.”).

CONCLUSION
For these reasons, Dr. Cullins’s convictions and sentencing are
AFFIRMED, Armstrong’s convictions for counts 11, 14, 17, 20, and 27 are
REVERSED, her remaining convictions are AFFIRMED, and the case is
REMANDED to the district court for further proceedings.

41