[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
APR 13, 2006
No. 04-15117
THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 03-00059 CR-5-MCR
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FREDDY J. WILLIAMS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(April 13, 2006)
Before TJOFLAT and COX, Circuit Judges, and GEORGE *, District Judge.
COX, Circuit Judge:
From 1999 until 2003, Freddy J. Williams, M.D., who was licensed to practice
medicine in Florida and registered under the Controlled Substances Act, 21 U.S.C. §
*
Honorable Lloyd D. George, United States District Judge for the District of Nevada, sitting
by designation.
801 et seq., operated a clinic in Panama City, Florida. In June 2004, he was
convicted, following a jury trial, of 94 crimes, including, most significantly: 56 counts
of unlawfully dispensing controlled substances; 2 counts of unlawfully dispensing a
controlled substance resulting in death; multiple counts of mail fraud, wire fraud,
health care fraud and conspiracy to commit these frauds; and possession of a firearm
by a convicted felon.1 Williams was sentenced, pursuant to the U.S. Sentencing
Guidelines (“the Guidelines”), to concurrent terms of life imprisonment on the two
counts resulting in death as well as concurrent terms of imprisonment ranging from
60 to 240 months on the remaining 92 counts of conviction. He was also sentenced
to a five-year period of supervised release to follow the imprisonment and ordered to
pay $2,051,642.16 restitution. He appeals his convictions and sentences. We affirm
the convictions and remand for resentencing under the now-advisory Guidelines
system.
I. BACKGROUND
From January 2000 through October 23, 2003, Williams wrote over 21,000
prescriptions for more than two million doses of controlled substances–most for
oxycodone (brand names OxyContin and OxyIR).2 At trial, the Government presented
1
Williams was previously convicted of Medicaid fraud and served twelve months in federal
prison. He was released in 1995.
2
All of the prescriptions discussed in this opinion are prescriptions for controlled substances,
as defined and regulated by the Controlled Substances Act. Oxycodone is a Schedule II controlled
2
the expert testimony of Dr. Parran, a board certified internal medicine physician with
subspecialty training in addiction medicine. Parran, who was qualified as an expert
in the areas of pain management, addiction medicine, and prescribing controlled
substances, testified based on his review of patient files, prescriptions and other
documents seized from Williams’s clinic. This testimony and the documentary
evidence demonstrated that Williams wrote multiple prescriptions on the same day for
the same patient, that he wrote prescriptions for over one hundred individuals on
whom he maintained no medical chart, that he wrote prescriptions for patients on
whom he performed no or very minimal physical examination, that he wrote
prescriptions for patients whose behavior and physical appearance indicated that they
were addicted to controlled substances or who informed Williams that they had been
addicted to controlled substances or illegal drugs in the past, that he wrote
prescriptions for patients whose toxicology screens (tests to determine which drugs
are in a patient’s body) showed that they were not taking the prescribed drugs and
were instead taking illegal drugs, that he wrote prescriptions for at least one patient
who he had heard was selling the prescribed drugs, that the trend in his prescribing
was to increase a patient’s dosage and number of pills with each prescription, and that
substance, defined by the statute as a drug with a “high potential for abuse . . . [but] a currently
accepted medical use with severe restrictions,” abuse of which “may lead to severe psychological
or physical dependence.” 21 U.S.C. § 812(b)(2).
3
he frequently refilled prescriptions early and replaced “lost” drugs. Parran testified
that these practices are not safe and are “not the legitimate practice of medicine.”
(R.12-165 at 46, 54.) Parran repeatedly stated that prescriptions written to particular
patients, “fail[] to meet usual standards of care and appear[] to be for other than
legitimate medical purpose.” (e.g., R.12-165 at 74, 92, 97, 101, 109.) At times during
his testimony, Parran characterized Williams’s prescription-writing behavior as
“unbelievable,” “unimaginable,” “unfathomable,” “inexcusable,” and “abhorrent.”
(R.12-165 at 89, 92, 101, 116; R.13-166 at 45.) Williams did not object to the
admission of any of this testimony.
The evidence further showed that Williams billed insurers (through the mail or
by facsimile) for some of the patient visits during which he performed no service other
than writing prescriptions for controlled substances and that Williams arranged (also
using the mail or facsimile) for patients to enter the OxyContin drug manufacturer’s
program to provide free OxyContin through the mail to patients, agreeing with those
patients to falsify their applications to claim that they had financial need and that
Williams was providing his services for free when, in fact, he was charging those
patients for visits.
Evidence was also presented that Williams received a kickback of some of these
free drugs. Williams maintained a supply of OxyContin in his office and gave these
4
drugs to patients to use “on an emergency basis.” While Williams was registered to
prescribe controlled substances, he was not registered to possess or dispense
controlled substances.
Tara McGavan, an indicted co-conspirator, testified that Williams delivered
OxyContin and syringes to her at her home.3 McGavan and Duane Oxenham, another
indicted co-conspirator, testified that they recruited two patients, Mr. and Mrs. M, for
Williams and that Williams acknowledged that the Ms were addicted to the
OxyContin he was prescribing but said “at least they are not getting [their drugs] from
the street.” (R.14-167 at 52-53.) Williams did not refer the Ms for drug treatment but
rather agreed with Oxenham and McGavan that Oxenham and McGavan should hold
the Ms’ supply of OxyContin in a lock box in Oxenham and McGavan’s home.
Oxenham and McGavan did this so that they could make sure that the Ms did not
overdose, end up in an emergency room and reveal Williams to be their source for
drugs. McGavan testified, “Dr. Williams agreed that that would be in the best interest
for [the Ms] and for all of us.” (R.14-167 at 55.)
Three of Williams’s patients died of drug overdoses. He was charged with
dispensing oxycodone resulting in the death of two of the three, Bonnie Ramos and
Brian Sanders. Dr. Scheuerman, an expert in forensic toxicology, testified that Ramos
3
OxyContin is a pill, but it can be ground into a powder and snorted or injected to create a
stronger high.
5
died of an overdose of OxyContin (prescribed by Williams) and/or doxepine (an
antidepressant prescribed by another doctor). (R.6-163 at 79.) Scheuerman further
testified that the amount of OxyContin alone in Ramos’s body was enough to cause
her death. (R.6-163 at 79, 82.) Sanders died of an OxyContin overdose while
injecting himself with drugs prescribed by Williams.
Two firearms were seized during a search, pursuant to warrant, of Williams’s
residence. One rifle was in Williams’s bedroom closet, the other in his son’s
bedroom.
Williams was convicted on June 16, 2004 and sentenced on September 1, 2004,
pursuant to the then-mandatory Guidelines. At the sentencing hearing, the court
ordered Williams to pay restitution in the amount of $2,051,642.16 to the health
insurance companies and drug manufacturer that paid for medically unnecessary
office visits and the OxyContin that he prescribed illegally.
6
II. ISSUES ON APPEAL
We discuss at length three of the issues Williams raises on appeal.4 First,
Williams argues that the evidence presented by the Government regarding his
prescribing behavior was “framed pursuant to the wrong legal standard,” namely the
civil standard of care rather than the criminal standard of “acting outside the course
of professional practice.” Williams contends that, as a result of the admission of
4
Williams also argues that the indictment was insufficient as a matter of law because it did
not charge him with dispensing controlled substances “outside the course of professional practice”
and because it did not specify the names of the persons to whom he prescribed the controlled
substances. The law in this circuit forecloses these arguments. See United States v. Steele, 147 F.3d
1316, 1320 (11th Cir. 1998) (en banc); United States v. Steele, 178 F.3d 1230, 1234 n.1 (11th Cir.
1999).
Williams argues, for the first time on appeal, that several of his convictions violate the
Double Jeopardy Clause. We do not address the merits of this argument because the double
jeopardy defense is waived by failure to assert it at trial. United States v. Bascaro, 742 F.2d 1335,
1365 (11th Cir. 1984) (citing Grogan v. United States, 394 F.2d 287, 289 (5th Cir. 1967)).
Williams also contends that there was insufficient evidence to convict him of many of the
dispensing counts (including the count resulting in the death of patient Bonnie Ramos), of
conspiracy, and of possession of the firearm. Williams made no motion for judgment of acquittal
at trial, so we review his convictions for manifest miscarriage of justice. After a thorough review
of the record, we find no such circumstance. There is sufficient evidence to support the jury’s
determinations of guilt.
Williams further argues that the district court erred in admitting evidence of uncharged bad
acts in violation of Federal Rule of Evidence 404(b), amongst them that marijuana and legal non-
controlled prescription drugs were found in his home as a part of the search pursuant to warrant, that
a patient who was not named in the indictment had overdosed, and that another patient who was not
named in the indictment died as a result of an overdose. Williams also argues that admission of this
evidence violated Federal Rule of Evidence 403. We find no reversible error in the admission of
this evidence; assuming, arguendo, that the district court erred in admitting this evidence, we find
that its admission was harmless. And, the properly admitted evidence against Williams provided
ample support for every crime of which he was convicted.
Finally, Williams argues that the district court violated his Sixth Amendment right to counsel
by denying his third motion to continue the trial, a motion that was brought on the grounds that
Williams’s counsel was unprepared and had not yet secured an expert witness. We find that, under
the facts of this case, denial of the continuance was not an abuse of the district court’s discretion.
7
expert testimony that his behavior failed to meet the standard of care and the
prosecutor’s references to the standard of care, the jury was confused and this
confusion prompted conviction for malpractice rather than criminal behavior.
Second, Williams argues that the district court committed reversible error by
refusing to give the jury instruction he proposed on good faith.
Third, Williams appeals his sentences. He argues that his offenses were
improperly grouped under the Guidelines and relies on United States v. Booker, 543
U.S. 220, 125 S. Ct. 738 (2005), to argue that the sentences violated his Sixth
Amendment rights to trial by jury because the district court judge: (1) sentenced him
pursuant to the mandatory Guidelines, (2) enhanced the sentences based on the judge’s
findings that Williams abused a position of public or private trust and obstructed
justice, and (3) based the order of restitution on the judge’s finding rather than a jury
finding of the amount of financial loss suffered by the drug company and insurers.
III. STANDARDS OF REVIEW
“[W]hen a party raises a claim of evidentiary error for the first time on appeal,
we review it for plain error only.” United States v. Baker, 432 F.3d 1189, 1202 (11th
Cir. 2005) (citing United States v. Jernigan, 341 F.3d 1273, 1280 (11th Cir. 2003)).
Likewise, when a defendant does not object at trial to statements made by the
8
prosecution, we review under the same plain error standard. See United States v.
Rodgers, 981 F.2d 497, 499 (11th Cir. 1993).
A district court’s rejection of a proposed jury instruction is reviewed for an
abuse of that court’s discretion. United States v. Garcia, 405 F.3d 1260, 1273 (11th
Cir. 2005) (citing United States v. Starrett, 55 F.3d 1525, 1551 (11th Cir.1995)).
Because Williams properly preserved his Booker error argument, we review his
claim de novo but will reverse only for harmful error. See United States v. Paz, 405
F.3d 946, 948 (11th Cir. 2005). We also review de novo the legality of an order of
restitution. See United States v. Washington, 434 F.3d 1265, 1267 (11th Cir. 2006).
IV. DISCUSSION
A. Jury Confusion Regarding The Applicable Standard By Which
Williams’s Conduct Must Be Judged
Williams argues that the expert witness testimony that his prescribing behaviors
failed to meet the civil standard of care, paired with prosecutorial misconduct in
referring to that standard, created jury confusion about the burden shouldered by the
prosecution. Williams contends that the jury applied the civil standard of care,
convicting him of malpractice rather than the crime of dispensing controlled
substances outside the course of professional practice.
9
The jury was instructed:
[A] medical doctor has violated Section 841 when the
government has proved beyond a reasonable doubt that he
has dispensed or caused to be dispensed controlled
substances outside the usual course of professional practice.
(R.15-174 at 126.) Williams concedes (as he did at trial) that this instruction properly
states the standard by which his conduct must be judged. (R.16-173 at 269-70.) He
maintains, however, that the expert testimony and prosecutorial misconduct pervaded
the trial and created an environment in which no jury instruction could cure these
errors.
We disagree. As a preliminary matter, we note that Williams did not object at
trial to the admission of any of the testimony or to any of the prosecutorial statements
that he now alleges were unfairly prejudicial. Because Williams did not object to the
admissibility of any of the testimony, the district court made no evidentiary ruling,
and we have no ruling to review on appeal. “[W]hen a party raises a claim of
evidentiary error for the first time on appeal, we review it for plain error only.” Baker,
432 F.3d at 1202 (citing Jernigan, 341 F.3d at 1280). Under the plain error standard,
before an appellate court can correct an error not raised at trial, there must be (1) error,
(2) that is plain, and (3) that affects substantial rights. If all three conditions are met,
an appellate court may then exercise its discretion to notice a forfeited error, but only
if (4) the error seriously affects the fairness, integrity, or public reputation of judicial
10
proceedings. United States v. Olano, 507 U.S. 725, 732, 113 S. Ct. 1770, 1776
(1993).
We question whether there is any merit to Williams’s argument that the
testimony was inadmissible. Evidence that a physician’s prescribing behavior
repeatedly fails to meet the civil standard of care is arguably relevant circumstantial
evidence tending to show that the physician was acting outside the course of
professional practice. But that question need not detain us because, even assuming
there was error here, it was not plain. Plain error is “clear” or “obvious.” Id. A court
of appeals cannot correct an error pursuant to Rule 52(b) unless the error is clear under
current law. Id. There is no authority, in this circuit or in any other circuit, holding
that evidence of noncompliance with the civil standard of care is inadmissible to prove
that the action at issue was also outside the course of professional medical practice.5
5
Indeed, the Fourth Circuit has recently held otherwise. In United States v. Alerre, that court
stated:
[E]vidence that a physician’s performance has consistently departed
from accepted professional standards supports the proposition that
the physician was not practicing medicine, but was instead cloaking
drug deals under the guise of a professional medical practice. As a
result, such evidence may properly be relevant to establish that the
physician contravened the criminal standard of liability.
430 F.3d 681, 691 (4th Cir. 2005). Or, as an expert witness in this case testified, “if the divergence
from the standards [of care] was great enough, it would be outside of normal medical practice.”
(R.13-166 at 92.)
11
Because Williams cannot satisfy the second prong of the plain error test, we proceed
no further with the analysis.
Williams’s claim of prosecutorial misconduct resulting in jury confusion fails
for the same reason. When a defendant does not object to the prosecutor’s statements
at trial, “relief is available to rectify only plain error that is so obvious that failure to
correct it would jeopardize the fairness and integrity of the trial.” United States v.
Bailey, 123 F.3d 1381, 1400 (11th Cir. 1997). Just as there is no rule barring the
admission of evidence of failure to meet the civil standard of care in a criminal
prosecution of a physician accused of illegally prescribing controlled substances, there
is no rule prohibiting prosecutorial reference to the civil standard of care during that
trial.
Neither the admission of testimony regarding the civil standard of care nor
prosecutorial reference to that standard justifies vacating Williams’s convictions or
granting him a new trial.
B. Jury Instruction
At trial, Williams requested the following jury instruction:
If a doctor dispenses a drug in good faith in medically
treating a patient, then the doctor has dispensed the drug for
a legitimate medical purpose in the usual course of medical
practice; that is, he has dispensed the drug lawfully. Good
faith in this context means good intentions and the honest
exercise of best professional judgment as to a patient’s
12
needs. It means that the doctor acted in accordance with
what he reasonably believed to be proper medical practice.
If you find that the defendant acted in good faith in
dispensing the drugs, then you must find him not guilty.
(R.16-173 at 271.) The district court refused Williams’s proposed instruction and
instead gave the following instruction to the jury:
A controlled substance is prescribed by a physician in the
usual course of a professional practice and, therefore,
lawfully, if the substance is prescribed by him in good faith
as part of his medical treatment of a patient in accordance
with the standard of medical practice generally recognized
and accepted in the United States.
(R.15-174 at 126.)
On appeal, Williams argues that the district court abused its discretion in
refusing his proposed instruction. We disagree. “The district court has broad
discretion in formulating jury instructions as long as those instructions are a correct
statement of the law. ‘The district court's refusal to incorporate a requested jury
instruction will be reversed only if the proffered instruction was substantially correct,
the requested instruction was not addressed in charges actually given, and failure to
give the instruction seriously impaired the defendant's ability to present an effective
defense.’” Garcia, 405 F.3d at 1273 (internal citations omitted) (quoting Starrett, 55
F.3d at 1551)).
13
In United States v. Moore, 423 U.S. 122, 96 S. Ct. 335 (1975), the Supreme
Court stated that it was the intent of Congress in enacting the Controlled Substances
Act “to confine authorized medical practice within accepted limits,” id. at 142, 96 S.
Ct. at 345, and that “physicians who go beyond approved practice remain subject to
serious criminal penalties.” Id. at 144, 96 S. Ct. at 346. Additionally, the Supreme
Court implicitly approved of the instructions given in Moore’s trial. In that case, the
district court gave an instruction containing the limitation that physicians must
prescribe “in accordance with a standard of medical practice generally recognized and
accepted in the United States,” id. at 139, 96 S. Ct. 344, and another that “‘honest
effort[s]’ to prescribe for detoxification in compliance with an accepted standard of
medical practice” are not criminal. Id. at 143 n.20, 96 S. Ct. 345 n. 20.
Williams’s proposed instruction fails to introduce any objective standard by
which a physician’s prescribing behavior can be judged. Under Williams’s proposed
instruction, if it is a physician’s subjective belief that he is meeting a patient’s medical
needs by prescribing that patient a controlled substance, then that physician cannot be
convicted of violating the Controlled Substances Act even if he acts outside all
accepted standards of medical practice. Thus, the proposed instruction is contrary to
Moore.
14
Additionally, the court’s refusal to give Williams’s proposed instruction did not
seriously impair his ability to present an effective defense. The instruction given by
the court afforded Williams an opportunity to defend himself by arguing at trial, as he
actually did, that all the prescriptions he wrote were written in good faith, as a part of
his legitimate practice of medicine.
Because the district court correctly concluded that Williams’s proposed
instruction was contrary to law and the instruction given by the court preserved
Williams’s ability to defend based on good faith, the court did not abuse its discretion
in refusing to give the proposed instruction. See United States v. Norris, 780 F.2d
1207, 1209 (5th Cir. 1986) (holding that the same jury charge given in Williams’s
case was a correct statement of the law under Moore because it provided both
subjective and objective measures of the prescribing behavior).
C. Sentences
Williams appeals his sentences, arguing that his Sixth Amendment rights to trial
by jury were violated because the district court sentenced him pursuant to the then-
mandatory Guidelines, enhancing the sentences and ordering restitution based upon
the court’s own findings of fact.6 In United States v. Booker, 543 U.S. 220, 125 S. Ct.
6
Williams also argues that the district court erred in calculating his Guidelines range because
it improperly grouped the offenses for which he was convicted. We have held that, post-Booker,
a district court still must calculate the Guidelines sentencing range correctly before rendering its
ultimate sentence. United States v. Crawford, 407 F.3d 1174, 1178 (11th Cir. 2005). We have
15
738 (2005), the Supreme Court found the mandatory Guidelines scheme under which
Williams was sentenced unconstitutional.
Though Williams was sentenced before Booker, he preserved this issue for
appellate review by objecting at the sentencing hearing that the sentences and the
order of restitution were unconstitutional under Apprendi v. New Jersey, 530 U.S. 466,
120 S. Ct. 2348 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531
(2004). (R.18-169 at 3-6, 21-22.) The Government concedes that Williams is entitled
to de novo review of his sentences, that constitutional error occurred when the district
court enhanced Williams’s sentences under the mandatory Guidelines based on the
court’s own findings of fact, and that the Government cannot shoulder its burden of
demonstrating that the constitutional error was harmless beyond a reasonable doubt.
We agree and therefore vacate the sentences and remand for resentencing.
Notwithstanding the remand for resentencing, however, the district court need
not reconsider the order of restitution. We have recently held that restitution orders
do not violate the rule announced in Apprendi (“[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a reasonable
doubt”) because the Mandatory Victims Restitution Act (MVRA), 18 U.S.C. § 3663,
reviewed the district court’s grouping of Williams’s offenses and find no error. Therefore, on
remand, the district court need not revisit the offense grouping.
16
does not have a prescribed statutory maximum. Dohrmann v. United States, ___ F.
3d ___, No. 05-15360 (11th Cir. March 15, 2006) (citing Apprendi, 530 U.S. at 490,
120 S. Ct. at 2362-63).
We now extend the reasoning of our precedent and hold that Booker does not
apply to restitution orders. We do so because restitution orders are authorized by the
MVRA, a statute unaffected by Booker. See United States v. Sosebee, 419 F.3d 451,
462 (6th Cir. 2005) (“Although the guidelines mandate imposition of restitution where
allowable under the statutes, the restitution statutes function independently from the
guidelines and do not rely on the guidelines for their validity. Thus, the Booker
Court’s holding that the Sentencing Guidelines are now merely advisory does not
affect orders of restitution.”). Additionally, the MVRA does not set an upper limit on
the amount of restitution. See Dohrmann, No. 05-15360 (11th Cir. March 15, 2006).
Therefore, a restitution order cannot be said to exceed the maximum provided by the
penalty statutes, and it cannot violate the rule announced in Booker (“any fact (other
than a prior conviction) which is necessary to support a sentence exceeding the
maximum authorized by the facts established by a plea of guilty or a jury verdict must
be admitted by the defendant or proved to a jury beyond a reasonable doubt.”).
17
Booker, 543 U.S. at 244, 125 S. Ct. at 756.7 Thus, we find no error in the imposition
of this restitution order.
V. CONCLUSION
For the foregoing reasons, we affirm Williams’s convictions but vacate his
sentences and remand to the district court for resentencing.
CONVICTIONS AFFIRMED; SENTENCES VACATED; REMANDED FOR
RESENTENCING.
7
In holding that Booker does not apply to restitution orders, we join the Third, Fifth, Sixth,
Seventh, Eighth, Ninth and Tenth Circuits. See United States v. Leahy, 438 F.3d 328, 338 n.12 (3d
Cir. 2006) (citing United States v. Garza, 429 F.3d 165, 170 (5th Cir.2005) (“We agree with our
sister Circuits, who have uniformly held that judicial fact-finding supporting restitution orders does
not violate the Sixth Amendment.”); Sosebee, 419 F.3d at 461 (“Given existing Sixth Circuit
precedent and recent decisions of the other circuits on this issue, we now conclude that Booker does
not apply to restitution and, thus, that Sosebee's Sixth Amendment challenge has no merit.”); United
States v. George, 403 F.3d 470, 473 (7th Cir.2005) (“We have accordingly held that Apprendi v.
New Jersey . . . does not affect restitution . . . and that conclusion is equally true for Booker.” );
United States v. May, 413 F.3d 841, 849 (8th Cir. 2005) ( “[S]everal circuits have affirmatively
rejected the notion that Apprendi, Blakely, or Booker affect the manner in which findings of
restitution can be made. . . . These cases are persuasive.”); United States v. Bussell, 414 F.3d 1048,
1060 (9th Cir. 2005) (“In contrast to its application of the Sentencing Guidelines, the district court's
orders of restitution and costs are unaffected by the changes worked by Booker.” ); United States
v. Visinaiz, 428 F.3d 1300, 1316 (10th Cir. 2005) (noting that “Blakely and Booker do not apply to
restitution” because “[i]n the Tenth Circuit, restitution is not criminal punishment”)).
18
United States v. Freddy J. Williams
Court: Court of Appeals for the Eleventh Circuit
Date filed: 2006-04-13
Citations: 445 F.3d 1302
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