UNITED STATES of America, Plaintiff-Appellee, v. Paul HOLLERN, Defendant-Appellant.
No. 08-5909.
United States Court of Appeals, Sixth Circuit.
Feb. 23, 2010.
365 Fed. Appx. 609
No. 08-5909.
United States Court of Appeals, Sixth Circuit.
Feb. 23, 2010.
HELENE N. WHITE, Circuit Judge.
Paul Hollern, a doctor of chiropractic medicine, was convicted of one count of intentional interception of oral communications in violation of
I
On February 5, 2007 a grand jury returned a four-count superseding indictment charging Hollern with health care fraud,
Hollern’s conviction stems from his use of audiovisual recording devices as part of a training program he ran for chiropractors. Hollern’s program taught trаinees—recent chiropractic graduates and chiropractors with failing practices—business and patient-management skills. The program included instruction in a four-day process for recruiting patients that Hollern had developed and employed in his own practice. Prospеctive patients received a complimentary x-ray and consultation on the first day, a chiropractic adjustment on the second day, follow-up on the third day, and a suggested course of treatment on the fourth day. Patients were encouraged to bring a spouse, family member or friend with thеm on the fourth day, and trainees were instructed to recruit the relatives and friends as patients using the same process.
The goal of the four-day process was to spread out the information given to a patient and to convince the patient to agree to a lengthy course оf treatment, preferably paid for in advance.1 Trainees received instruction on how to communicate with patients, including scripted statements and explanations for certain situations.
In order to evaluate the trainees’ progress in following his program, Hollern had them record their sessions with patients.2 Hollern began training other chiropractors through a series of individual, mentorship-like arrangements. The trainee would work in Hollern’s office and practice Hollern’s recruitment and treatment methods. To facilitate review, the trainee would bring a tape recorder into the treatment room and record his or her direct interactions with patients. These training arrangements proved both successful and lucrative for Hollern, who re
Initially, Hollern did not provide patients with any information regarding the cameras. If a patient asked about a camera, trainees were told to say that it was there for security or other purposes. After questions repeatedly arose concerning the cameras, Hollern added a statement on the patient intake form giving consent to the recordings. The statement read:
I will allow this office to treat me, with other health care providers present, and to record my medical information, including consultation and examination, for documentation purposes, if necessary.
Hollern hired a consultant, who was not an attorney, to review the language, and was told that it was “fine.”
The primary purpose of the video recordings remаined the same as the audiotapes used by previous trainees: to evaluate trainee-patient interaction. With the addition of video, however, more could be evaluated, such as the trainees’ “body language” when treating a patient. In addition, trainees testified that they were instruсted to use the cameras to observe patients from the screening room prior to entering the treatment room, and if a patient was accompanied by a friend or family member, the trainee was to listen to their conversations to identify potential barriers to “selling” a coursе of treatment. Hollern’s testimony at trial conflicted with that of the trainees. He testified that they were not supposed to observe patients prior to entering the treatment room, and that doing so would defeat the purpose of evaluating how trainees reacted to recalcitrant patients.
II
A
Hollern first challenges his conviction under
A criminal statute is void for vagueness if it “fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement.” United States v. Williams, 553 U.S. 285, 128 S.Ct. 1830, 1845, 170 L.Ed.2d 650 (2008).4
(1) Except as otherwise specifically provided in this chapter any person who—
(a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication; ... shall be punished as provided in subsection (4)
(2) ...
(d) It shall not be unlawful under this chapter for a person not acting under color of law to intercept a wire, oral, or electronic communication where such person is a party to the communicаtion or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any Statе.
Hollern argues that the statute does not provide sufficient notice of what is prohibited. He concedes that
We have held that “[w]hen the common meaning of a word provides adequate notice of the prohibited conduct, the statute’s failure to define the term will not render the statute void for vagueness.” United States v. Namey, 364 F.3d 843, 844-45 (6th Cir.2004) (citing United States v. Haun, 90 F.3d 1096, 1101 (6th Cir.1996)). The first dictionary definition of “consent” is “a: compliance or approval esp. of what is done or proposed by another ... b: capable, deliberаte, and voluntary agreement to or concurrence in some act or purpose implying mental power and free action.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY UNABRIDGED 482 (2002). The common meaning of the term provides ample notice of when otherwise prohibited conduct under
We conclude that
B
Hollern next argues that the government presented insufficient evidence to support his conviction. At the close of trial, the district court denied Hollern’s motion for a judgment of acquittal based on the sufficiency of the evidence. We review the district court’s deсision de novo. United States v. Lawson, 535 F.3d 434, 443 (6th Cir.2008). Viewing the evidence in the light most favorable to the government, “the relevant question is whether ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’” United States v. Hughes, 505 F.3d 578, 592 (6th Cir.2007) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). We do not independently weigh the evidence or substitute our judgment for that of thе jury. United States v. Davis, 577 F.3d 660, 671 (6th Cir.2009). Further, “‘[s]ubstantial and competent’ circumstantial evidence by itself may support a verdict and need not ‘remove every reasonable hypothesis except that of guilt.’” United States v. Lee, 359 F.3d 412, 418 (6th Cir.2004) (quoting United States v. Stone, 748 F.2d 361, 363 (6th Cir.1984)).
To establish Hollern’s guilt of intercepting oral communications, the government was required to prove beyond a reasonable doubt: 1) that Hollern intentionally intercepted or procured another to intercept an oral communication; 2) made by a person exhibiting an expectation that the communication would not be subject to interception under circumstances justifying such expeсtation; and 3) that the interception was not otherwise permitted by the statute.5 See
Hollern argues, as he did at trial, that he never told trainees to observe patients before treatment commenced and that even if he had done so, patients consented to being recorded. He contends that eavesdropping on private conversations would undermine the logic of recording trainee-patient interactions: if trainees knew what to expect, the recording would not provide a genuine opportunity to observe how well they were able to follow Hollern’s program. However, trainees testified that they were instructed by Hollern tо observe patients before entering the treatment rooms—including listening to their conversations—in order to be better prepared to convince the patients to agree to a course of treatment. The jury was able to weigh the witnesses’ credibility
Hollern’s contention that patients consented to the interception of their conversations is similarly without merit. The patient intake form gave consent “to record my medical information, including consultation and examination, for documеntation purposes, if necessary.” Witnesses testified that patients were observed prior to a trainee entering the room, for the purpose of identifying potential obstacles to accepting a course of treatment. Patients’ conversations with family members and friends in the absence of a treater are clearly not “medical information,” and were not recorded for “documentation purposes.” Nor was there evidence that such information was “necessary” to record. Such ostensibly private conversations are beyond the scope оf the written consent form.
Hollern has failed to demonstrate that the evidence, construed in the light most favorable to the government, was insufficient to support his conviction.
III
For the foregoing reasons, we AFFIRM.
Notes
[H]e approached me and said, “Hey, I can—instead of doing these audiotapеs,” he said, “I can put videotapes—video cameras in your rooms.” And so I said, “Is it legal?” He said, “Yeah.” So he put them in and installed them.
The stringency of the vagueness test depends upon the context of the challenge. When the statute regulates economic conduct, a less stringent vagueness test applies. Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982). By contrast, a greater degree of precision is required of criminal statutes “becаuse the consequences of imprecision” are more severe. Id. at 499, 102 S.Ct. 1186. “[P]erhaps the most important factor affecting the clarity that the Constitution demands of a law is whether it threatens to inhibit the exercise of constitutionally protected rights.” Id. Consequently, when the First Amendment is implicated, a more stringent vagueness test applies. Id. Ordinarily, a vagueness challenge must be made “in light of the facts of the case at hand,” and “[o]ne to whose conduct a statute clearly applies may not successfully challenge it for vagueness.” Id. at 495 n. 7, 102 S.Ct. 1186 (internal quotation marks omitted). In other words, one “who еngages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others.” Id. at 495, 102 S.Ct. 1186. By contrast, in the First Amendment context a vagueness challenge may prevail on the ground that “it is unclear whether [the statute] regulates а substantial amount of protected speech.” United States v. Williams, 553 U.S. 285, 128 S.Ct. 1830, 1845, 170 L.Ed.2d 650 (2008).