United States v. Paul Volkman
797 F.3d 377
| 6th Cir. | 2015Background
- Paul H. Volkman, a licensed physician who ran a cash-only pain clinic and in-clinic dispensary, was indicted for conspiracy, unlawful distribution of controlled substances (including multiple counts resulting in death), maintaining drug-involved premises, and possession of a firearm in furtherance of drug trafficking.
- Clinic operations featured large volumes of opioid prescriptions, poor recordkeeping, unsecured drug storage (a Glock found in the drug safe), and patients with addiction or other physical/mental vulnerabilities; several patients died after receiving multi-drug prescriptions from Volkman.
- A jury convicted Volkman on conspiracy, multiple unlawful-distribution counts (including four counts resulting in death), counts for maintaining drug-involved premises, and one firearms count; he was sentenced to four consecutive life terms for the death counts plus concurrent prison terms on other counts.
- On direct appeal to this court the convictions and sentence were affirmed; the U.S. Supreme Court granted certiorari, vacated, and remanded for reconsideration in light of Burrage v. United States (regarding but-for causation for §841(b)(1)(C) death enhancements).
- On remand the Sixth Circuit reconsidered Volkman’s challenges (jury instruction, expert testimony, sufficiency of evidence including Burrage but-for causation, and sentencing enhancements) and again affirmed conviction and sentence.
Issues
| Issue | Volkman’s Argument | Government’s Argument | Held |
|---|---|---|---|
| Jury instruction re: "conventional drug-dealing" / Gonzales language | Instruction quoting Gonzales was required to limit jury to conventional drug-dealing concept | Gonzales is an administrative/interpretive decision and its phrasing would improperly narrow the jury’s inquiry; jury charge already defined "legitimate medical purpose" and course of practice | Denial of proposed instruction affirmed; district court’s instructions sufficiently and properly defined the law |
| Admission of expert testimony stating prescriptions lacked a "legitimate medical purpose" | Such testimony is an improper legal conclusion that usurps the jury’s role | Experts may give medical opinions that speak to whether prescriptions comport with the usual course of practice; phrase has common medical meaning rather than distinct legal meaning | Admission of experts’ opinions affirmed; testimony did not impermissibly state legal conclusions |
| Sufficiency of evidence for conspiracy and firearm-in-furtherance convictions | Volkman claimed lack of knowledge/participation in profit-driven conspiracy and disputed possession/furtherance of firearm | Evidence showed active role in dispensary, profit motive, conduct supporting tacit agreement; Glock in drug safe with Volkman’s access supported constructive possession and furtherance | Convictions for conspiracy and firearm possession in furtherance affirmed |
| Sufficiency of evidence for §841(b)(1)(C) death counts under Burrage (but-for causation) | Argued government failed to prove drug(s) he prescribed were but-for cause of four deaths; alternate causes and poly-drug use undermine causation | Jury instruction required but-for causation; toxicology, prescription timing/quantity, medical history, and expert testimony supported that oxycodone (often in combination) was a but-for cause or contributed incrementally to death | Jury findings (with Burrage but-for instruction) sustained; evidence sufficient to support convictions for unlawful distribution resulting in death |
Key Cases Cited
- Gonzales v. Oregon, 546 U.S. 243 (U.S. 2006) (addressing Attorney General authority and commentary on "legitimate medical purpose" in administrative context)
- Burrage v. United States, 134 S. Ct. 881 (U.S. 2014) (holding that the §841(b)(1)(C) death enhancement requires but-for causation when the distributed drug is not an independently sufficient cause of death)
- United States v. Kirk, 584 F.2d 773 (6th Cir. 1978) (endorsing case-by-case approach to determining conduct outside usual course of professional practice under the CSA)
- United States v. Chube II, 538 F.3d 693 (7th Cir. 2008) (upholding expert testimony that prescriptions lacked a legitimate medical purpose as admissible medical opinion)
- United States v. Schneider, 704 F.3d 1287 (10th Cir. 2013) (similar holding that experts may testify doctors prescribed for other than legitimate medical purposes without usurping the jury)