UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JONG WHAN KIM, Defendant - Appellant.
No. 22-4221
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
June 20, 2023
PUBLISHED. Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. Louise W. Flanagan, District Judge. (7:18-cr-00200-FL-1)
Decided: June 20, 2023
Before AGEE, Circuit Judge, TRAXLER, Senior Circuit Judge, and Henry E. HUDSON, Senior United States District Judge for the Eastern District of Virginia, sitting by designation.
Affirmed by published opinion. Senior Judge Traxler wrote in the opinion, in which Judge Agee and Judge Hudson joined.
ARGUED: Michelle Ann Liguori, ELLIS & WINTERS, LLP, Raleigh, North Carolina, for Appellant. Andrew Kasper, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: Scottie F. Lee, ELLIS & WINTERS LLP, Greensboro, North Carolina, for Appellant. Michael F. Easley, Jr., United States Attorney, David A. Bragdon, Assistant United States Attorney, Kristine L. Fritz, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Federal law prohibits the knowing or intentional distribution of a controlled substance “[e]xcept as authorized.”
Before Ruan was decided, this circuit (and others) had held that whether a doctor‘s actions were authorized was an objective inquiry. See, e.g., United States v. Hurwitz, 459 F.3d 463, 479 (4th Cir. 2006). Because Ruan changed the law in this circuit, Kim contends that his guilty plea must be set aside because the district court did not inform him that the government would be required to prove that he knew he was acting in an unauthorized manner when issuing the challenged prescriptions. Kim also contends that the district court
I.
Kim was born in South Korea in 1949. He joined the Korean military and fought alongside American forces in the Vietnam war. He immigrated to the United States when he was 27. In Wisconsin, Kim got married and had three children. He worked in a factory and as a gardener to support his family. Kim obtained a bachelor‘s degree from the University of Wisconsin in 1991 and received his medical degree in 1995.
After working for several years in a hospital in Pennsylvania, Kim was hired in 2002 as a hospitalist in Elizabethtown, North Carolina. The hospital eventually became concerned about Kim‘s practices for prescribing controlled substances. Hospital officials met with Kim in December 2016 and informed him that his treatment notes did not justify the prescriptions he was issuing. Kim was given the option of complying with the hospital‘s requirements or resigning; he chose to resign in March 2017.
After leaving the hospital, Kim began seeing patients at his home in Bladenboro, North Carolina. In the summer of 2017, the still-married Kim started dating Tammy Thompson, who then began helping Kim run his home-based medical practice.1 In
The information in the record shows that the clinic operated as a classic pill mill. Beyond a scale, blood-pressure cuffs, and a stethoscope, there was no medical equipment at the clinic. Kim issued prescriptions for strong pain medication without reviewing the patient‘s prior medical records and without performing a proper examination to determine if medication was required. Although the clinic did perform drug tests on new patients, the results were not properly documented in the patients’ files, and Kim issued prescriptions even if the patient failed the drug test.
The clinic saw between 35 and 40 patients a day, and those patients frequently reeked of marijuana. Thompson and her daughter, who also worked at the clinic, would sometimes let a particular person (who was not a patient) bring a group of prospective patients to the clinic, and Kim would issue prescriptions to the group. Patients who brought other prospective patients would be seen more quickly. All patients paid in cash (usually $200), regardless of insurance status, and clinic employees were also paid in cash. The cash paid by the patients was placed by clinic employees in one of two lock boxes. At the end of each day, Thompson would gather the money from the lock boxes and deposit it at one of two banks. An employee of one of the banks told law enforcement that Thompson usually made deposits ranging between $5,000 and $8,000 twice a week.
The clinic was located next to Tabor City Elementary School. The clinic parking lot was often filled with patients waiting to be seen, which created safety concerns for the
In 2018, law enforcement had a confidential informant pose as a clinic patient. The CI saw Kim twelve times. Kim conducted a drug screen on the first visit, but not thereafter. At each appointment, the CI paid $200 in cash and Kim issued prescriptions after minimal or no medical examination. At several appointments, the CI also purchased marijuana from Thompson. On one occasion when the CI was in the examination room with Kim, Thompson brought the marijuana into the room and sold it to the CI in front of Kim. In Kim‘s presence, she told the CI that Kim was willing to trade work for prescriptions.
In May 2018, the CI asked Kim to prescribe stronger medication, and Kim complied with no examination and no questions asked. At the CI‘s last clinic visit in June 2018, the CI asked Kim for a higher dosage of the medication so he could sell more pills on the street. The CI and Kim also discussed which pharmacy the CI should use to ensure that the prescription would not be recorded. At the CI‘s request, Kim also issued a prescription for the CI‘s father, who was not present at the appointment and had never been seen by Kim. The CI paid Kim $200 for the prescription issued in his name and $300 for the prescription issued in his father‘s name.
The day after his last clinic visit, the CI conducted a final controlled purchase from Kim and Thompson at Kim‘s residence, paying $700 for 81 hydrocodone pills and a quantity of marijuana. At this visit, Kim and the CI discussed the possibility of the CI lending Kim money to buy a house. Kim offered to pay the interest through prescriptions
In December 2018, Kim and Thompson were indicted on federal charges, including a charge of conspiracy to distribute controlled substances and multiple individual counts of drug distribution. The case proceeded slowly through the system, as dates for trial were set and then later extended. In July 2020, the government filed a superseding indictment including additional counts against Kim and Thompson. A 34-count second superseding indictment was filed on July 7, 2021. In addition to the conspiracy charge asserted against Kim and Thompson, the second superseding indictment included twenty-five substantive counts involving Kim alone; six substantive counts involving Thompson alone2; and two substantive counts involving both Kim and Thompson. Less than a week after the second superseding indictment was filed, Thompson pleaded guilty to conspiracy and five of the individual counts.
In November 2021, Kim signed a written agreement whereby he agreed to plead guilty to conspiracy and eight substantive counts in exchange for the dismissal of the remaining counts. At the plea hearing conducted on November 30, 2021, Kim testified that he had read the second superseding indictment, understood the charges, and was prepared to plead guilty. When the court listed the relevant counts and asked Kim how he pleaded, Kim responded, “I plead guilty to those charges, Your Honor.” J.A. 68.
The parties returned to court on December 28, 2021, with a freshly executed plea agreement.3 The court explained that the hearing was a continuation of the prior hearing, and Kim declined the court‘s offer to repeat any of the information from the first hearing about the charges, penalties, and the rights he was giving up. After the government spelled out the factual bases for the charges, the court reiterated to Kim that if the court accepted the plea agreement, “you can‘t take it back. You‘re bound by it.” J.A. 104. Kim stated that he understood. The district court then asked Kim if he was in fact guilty of the charges spelled out in the plea agreement, to which he responded, “Yes, your Honor.” J.A. 104.
II.
We turn first to the Ruan question. “A plea of guilty is constitutionally valid only to the extent it is voluntary and intelligent. We have long held that a plea does not qualify as intelligent unless a criminal defendant first receives real notice of the true nature of the charge against him, the first and most universally recognized requirement of due process.” Bousley v. United States, 523 U.S. 614, 618 (1998) (cleaned up). To ensure that defendants plead guilty knowingly and voluntarily, the Federal Rules of Criminal Procedure require a district court, before accepting a guilty plea, to “inform the defendant of, and determine that the defendant understands, . . . the nature of each charge to which the defendant is pleading.”
Kim contends his plea was not valid because the district court did not inform him that, if he went to trial, the government would be required to prove beyond a reasonable doubt that Kim subjectively knew or intended that his conduct was unauthorized, as required by Ruan. Because Kim raised no objections below, we review for plain error only. Under plain error review, Kim is entitled to relief only if he can
Greer v. United States, 141 S. Ct. 2090, 2096 (2021) (cleaned up). Kim bears the burden of persuasion at each step of the inquiry; “[s]atisfying all four prongs of the plain-error test is difficult.” Id. at 2097 (cleaned up).
Kim contends that the district court plainly erred because it never expressly informed Kim that the government at trial would be required to prove that Kim knew or intended that his prescriptions were not authorized and that he would not have pleaded guilty if he had understood the government‘s burden of proof. While the government acknowledges that Ruan changed the law in this circuit, it disagrees with Kim at every step of the plain-error path. In the government‘s view, there was no error at all, let alone plain error. In any event, the government contends that Kim cannot show his substantial rights were affected.
A.
We first consider whether there was error, and, if so, whether the error was plain. “Deviation from a legal rule is ‘error’ unless the rule has been waived.” United States v. Olano, 507 U.S. 725, 732–33 (1993). An error is “plain” if the error is “clear” or “obvious.” Id. at 733.
In the plea colloquy, the district court explained that for the conspiracy count, the government was required to prove that Kim “formed an agreement to distribute, prescribe,
Kim argues that because the district court did not expressly state that the government would be required to prove that he knew or intended that his prescriptions were unauthorized, as required by Ruan, the court failed to inform him of the true nature of the charges against him and therefore committed plain error. See Johnson v. United States, 520 U.S. 461, 468 (1997) (“[W]here the law at the time of trial was settled and clearly contrary to the law at the time of appeal[,] it is sufficient that the error be plain at the time of appellate consideration.“).
The government, however, insists that the district court‘s explanation was entirely consistent with Ruan. The government contends that when the district court stated “‘you did that outside the usual course of professional practice,’ the court incorporated the mens rea requirement that it had just read.” Br. of Appellee at 21.
We need not decide whether the district court‘s explanations should be understood in the manner suggested by the government. While the Constitution requires that the defendant understand the true nature of the charges he faces, that does not mean that a recitation of all elements is always required in a Rule 11 proceeding. This court “has
In this case, even if the district court‘s explanation of the charges alone did not properly reflect the mens rea required by Ruan, the language of the indictment does reflect Ruan‘s holding. This court has made it clear that when explaining the nature of the charges, a district court may rely on the defendant‘s sworn statement that he has read the indictment and discussed it with his attorney. See Wilson, 81 F.3d at 1307 (“We again refuse to require the district courts to recite the elements of the offense in every circumstance. In many cases, such a procedure would be a formality and a needless repetition of the indictment, which often tracks the essential elements of the offense.“) (emphasis added).
In each count of the second superseding indictment that involved Kim, the government, apparently anticipating what Ruan would hold, alleged that Kim conspired and issued the challenged prescriptions “while acting and intending to act outside the usual course of professional practice and not for a legitimate medical purpose.” J.A. 39, 40, 41, 43 (emphasis added). Ruan requires the government to prove that the defendant knew or intended to issue unauthorized prescriptions. Because a prescription issued outside the
Kim argues that the language of the second superseding indictment is irrelevant because governing Fourth Circuit law at the time of his plea was not consistent with Ruan, which, in Kim‘s view, means that he did not plead guilty to any Ruan-compliant offense. We disagree. Kim did not plead guilty to generic charges under
Kim also contends that the language of the indictment is not sufficient under Ruan because it does not make clear that the government bears the burden of proving that Kim intended to issue unauthorized prescriptions. While the indictment does not mention (and would not be expected to mention) the burden of proof, the district court in the plea
As we explained in DeFusco, the question is not simply whether the court recited each element of each charge at the plea hearing, but whether the district court ensured that Kim understood the true nature of the charges. See DeFusco, 949 F.2d at 117 (“[T]he defendant must receive notice of the true nature of the charge rather than a rote recitation of the elements of the offense. . .“). When determining whether a plea hearing complies with the requirements of Rule 11, we are obligated to “accord deference to the trial court‘s decision as to how best to conduct the mandated colloquy with the defendant. The manner of ensuring that the defendant is properly informed is committed to the good judgment of the district court, to its calculation of the relative difficulty of comprehension of the charges and of the defendant‘s sophistication and intelligence.” Id. at 116 (cleaned up).
In this case, the district court was presented with a mature, well-educated, financially successful defendant who had no mental health conditions or substance abuse
B.
Moreover, even if we could find error in the district court‘s approach, we agree with the government that Kim cannot show that his substantial rights were affected.
Because Kim pleaded guilty, the substantial-rights inquiry requires him to “show[] that, if the District Court had correctly advised him of the mens rea element of the offense, there is a reasonable probability that he would not have pled guilty.” Greer, 141 S. Ct. at
In support of his claim that he would not have pleaded guilty if he had understood that the government would be required to prove that he knew he was issuing prescriptions outside the usual course of professional practice and not for a legitimate medical purpose, Kim points to his initial hesitancy to plead guilty and his assertion in the first hearing that he did nothing willfully and was “not guilty of any of this.” J.A. 86. He also points to the government‘s statements of the factual bases for the charges, which Kim contends did not include evidence of Kim‘s subjective intent for each prescription at issue. We are not persuaded.
Although Kim expressed hesitancy in the first plea hearing, an isolated hiccup in the course of a plea proceeding does not automatically satisfy the substantial-rights prong of the plain-error inquiry. Kim expressed no further hesitancy when court reconvened several weeks after the initial hearing. He responded in the negative when the district court asked if he needed any other information from the court or had questions for his attorney, and he confirmed that he was in fact guilty of the charges listed in the plea agreement. Under these circumstances, the mere fact that Kim was briefly hesitant to plead guilty is insufficient to carry Kim‘s burden under plain-error review.
The point of the question is not to second-guess a defendant‘s actual decision; if it is reasonably probable he would have gone to trial absent the error, it is no matter that the choice may have been foolish. The point, rather, is to enquire whether the omitted [explanation] would have made the difference required by the standard of reasonable probability. . . .
Although the record reveals no statement from Kim directly stating his subjective intention to violate the law, the mountain of circumstantial evidence leaves little doubt. For example, the record shows that Kim complied when the CI asked Kim to prescribe a higher strength of medication so he could sell more pills on the street. Kim likewise complied when the CI asked for a prescription for his father, who was not a patient of Kim‘s and was not present at the appointment. Kim did not correct Thompson when she told the CI, in Kim‘s presence, that Kim would trade work for prescriptions, and Kim asked the CI about a possible loan and offered to write prescriptions to pay the interest. In the face of this evidence, a jury would be highly unlikely to conclude that Kim subjectively believed he was issuing authorized, medically necessary prescriptions, which in turn makes it unlikely that Kim‘s plead-or-trial calculation would turn on the precise contours of the statutory mens rea requirements.
Moreover, counsel for Kim told the court at sentencing that once he got involved in the case and explained the government‘s evidence, Kim and his children “pretty quickly
[I]t was very difficult for Dr. Kim to overcome that sense of absolute shame and dishonoring in his family. Part of what helped us in that are his own children telling him that he‘s a grandfather, and their father, and they didn‘t want him to die in prison, Your Honor. They wanted him to have time with his family.
And so ultimately he came before the Court and pled guilty.
J.A. 121.
In our view, these statements undermine Kim‘s claim that he would not have pleaded guilty if he had understood the government‘s obligation to prove he knew his prescriptions were not authorized. While pleading guilty would not eliminate the dishonor that Kim perceived, proceeding to trial would invite even more public attention on the specifics of Kim‘s actions, including details about his extra-marital relationship with Thompson. Given the slim likelihood that a jury would agree that Kim believed he was writing proper prescriptions, we have difficulty seeing how a more fulsome explanation of the government‘s burden to prove mens rea “could have had an effect on [Kim‘s] assessment of his strategic position.” Dominguez Benitez, 542 U.S. at 85.
After reviewing the record as a whole, we agree with the government that Kim has not established a reasonable possibility that he would not have pleaded guilty if the charges
III.
Finally, we turn briefly to Kim‘s claim that the district court violated his right to address the court before sentence is imposed. Because Kim did not object below, this issue is likewise reviewed for plain error. See United States v. Muhammad, 478 F.3d 247, 249 (4th Cir. 2007).
The Rules of Criminal Procedure provide that, “[b]efore imposing sentence, the [district] court must . . . address the defendant personally in order to permit the defendant to speak or present any information to mitigate the sentence.”
Kim concedes that while the district court did “eventually” give him an opportunity to speak, that opportunity was insufficient because the district court by then had already “express[ed] its views on the extent of Mr. Kim‘s moral culpability.” Br. of Appellant at 40.
Rule 32 only requires the district court to address the defendant personally and permit him to speak or present any information to mitigate the sentence before sentence is imposed; apart from that requirement, the rule does not create a right of allocution at any specific point in the sentencing proceeding. Moreover, when a judge announces a sentence before hearing an allocution, it is fair to assume that such a sentence is tentative and that the judge will consider the defendant‘s statements before imposing a final sentence.
Id. at 425 (cleaned up) (emphasis added).
There was nothing improper in Engle about the court expressing preliminary views as to the appropriate sentence before hearing from the defendant, and there was nothing improper here about the court expressing its views about the costs and societal harms of Kim‘s conduct before hearing from him. Because the district court afforded Kim the opportunity to address the court before the court imposed sentence, Kim cannot establish the existence of error, much less plain error.
IV.
Accordingly, for the foregoing reasons, we hereby affirm Kim‘s conviction and sentence.
AFFIRMED