UNITED STATES OF AMERICA, Appellee, versus ROBERT L. IGNASIAK, JR., Appellant.
Nos. 09-10596, 09-16005 & 10-11074
D.C. Docket Nos. 08-00027-CR-3-LAC-MD, 3:08-cr-00027-LC-MD-1
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
(January 19, 2012)
[PUBLISH] FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT JANUARY 19, 2012 JOHN LEY CLERK
Before EDMONDSON, MARTIN and COX, Circuit Judges.
MARTIN, Circuit Judge:
A jury found Ignasiak guilty of forty-three of the fifty-four counts charged. He was sentenced to a total term of 292-months imprisonment, the bottom end of his advisory guideline range. Ignasiak‘s convictions resulted in three separate but
I. STATEMENT OF FACTS AND PROCEDURAL HISTORY
During Ignasiak‘s nineteen day trial, the government presented forty-one witnesses, including patients, patients’ family members, former clinic employees,
Until his retirement on December 15, 2005, Ignasiak operated a medical clinic in Freeport, Florida, a rural town in the Florida Panhandle where he was the only medical doctor. He had a busy medical practice and typically saw between thirty to thirty-two patients each day at fifteen–minute intervals. Most patients came to renew their prescriptions, and those who worked at the clinic testified that Ignasiak always interviewed and examined his patients before they got a prescription. In addition to his regularly scheduled appointments, Ignasiak saw work-in patients, people who became sick and needed to see a doctor right away, at the rate of one or two per hour. As one former employee who worked at the clinic affirmed during the trial, if somebody was sick in Freeport and needed to see a doctor that particular day, they would come to see Dr. Ignasiak.
In the spring of 2005, the federal Agency for Health Care Administration (ACHA) undertook a review of Ignasiak‘s files due to concern that, as a family
By December of 2005, Ignasiak had retired and sold his Freeport medical practice to Hospital Corporations of America (HCA), which sent a replacement doctor. Dr. Maurice Marholin, a chiropractor, arrived at the clinic on January 23, 2006, following a several week period where there was no doctor present. Upon reviewing the patient files in preparation for his first visits, he was alarmed by the quantity of controlled substances being prescribed, and believed the defendant had been operating a pain management clinic rather than a family practice.5 Dr. Marholin was not equipped to run a pain management clinic and communicated his concerns to HCA, which posted a memo on the clinic‘s front door informing patients that narcotics would not be prescribed for two weeks. Patients who expected that Dr. Marholin would write pain medications were visibly angry when he did not.6 Dr. Marholin feared for his safety and began to wear a bullet-proof vest.
Three other individuals who were involved in the transition also testified for the government. A nurse, Stephanie Hughes, who worked for Ignasiak for only six weeks, testified over objection that numerous unidentified patients came for appointments, asking for prescription refills. It was common for Ignasiak to
Rebecca Clark worked briefly in Ignasiak‘s clinic from sometime in 2004 until he retired, and recalled the transition period. Clark testified that Ignasiak saw many patients, sometimes as many as six in an hour, and that the majority were not there because they were, in Clark‘s terms, sick, but rather to get monthly medication refills. A third witness, Dr. Gregory Staviski, a pain management specialist, saw approximately twenty-four of Ignasiak‘s patients referred to him by Dr. Marholin, and recalled that the majority wanted their medications, appeared to have little interest in being treated, and did not show up for appointments.
In K.M.‘s first visit with Ignasiak, she told him she had back problems and after a physical examination he prescribed her Lortab, Celebrex, and Skelaxin. From 2001 until May 2003, Ignasiak prescribed K.M. Lortab and various nonnarcotic medications for back and joint pain, headaches, and other non-pain related medical problems, such as congestion and allergic rhinitis. Although K.M. admitted she just wanted pain medication, she did in fact suffer from lower back pain which the pain medication relieved and allowed her to function in every day life. K.M. never told Ignasiak that she was dependent upon the pain medication and that it was only partially for pain because she was afraid to tell him the truth.
According to K.M., Ignasiak examined her each time she went to see him
At one point, a pharmacist called Ignasiak to say that K.M. was attempting prematurely to fill a prescription for Lortab written by another doctor, but the defendant authorized the additional refill once it was explained that K.M. was going to the Bahamas for two weeks. K.M. testified that she did, in fact, go to the Bahamas. After this incident, Ignasiak switched K.M.‘s primary medication to Duragesic pain patches and required her to return the used ones to him so he could monitor how she was using the drugs. Two weeks later, K.M. returned the used patches and Ignasiak counted and inspected them, as he did every time K.M. came in for an office visit.
Between 2003–2005, Ignasiak steadily increased the dosage in the patches, and continued to prescribe Lortab for breakthrough pain, and later Xanax, until his retirement. Ignasiak periodically ordered lab tests, which he reviewed with K.M.
Beverly Fein, the daughter of patient J.S. (counts of conviction thirty two and thirty seven), testified about her mother‘s treatments with Ignasiak from 1989–2004. J.S. did not testify. According to Fein, although J.S. had a lot of pain everywhere, Ignasiak‘s prescriptions to treat the pain caused her to deteriorate to the point where she stayed in her room all day watching television, frequently stumbled, slurred her words, and injured herself. The drugs made her basically non-functional. J.S.‘s medical records reflected that Ignasiak had scheduled repeated ultrasound tests of her gallbladder and other tests for osteoporosis, renal failure, peptic ulcer disease and hypertension, as well as referrals for her to see different specialists. In 2000, Ignasiak referred J.S. to a pain clinic but she could not afford to go. When J.S. had a double bypass surgery due to congestive heart failure, Ignasiak was the first to notice that J.S. had developed gangrene in one of her toes, and to discover that her kidneys were failing as a consequence of the surgery.
Fein also testified that she told Ignasiak at one point that J.S. was addicted to her pills and had almost overdosed on several occasions. As a result, Ignasiak
Dana Easterly, the widower of patient B.E. (counts of conviction seven, ten, fifteen, sixteen, thirty six, and forty eight), testified that Ignasiak began treating his wife within a few months after they moved to Freeport from Louisiana in 1999. B.E. had been in a tragic car accident in 1994 in which her nine-year old daughter was killed and B.E. was ejected through the windshield head first, causing serious injuries to her face. Before seeing Ignasiak, B.E. had several reconstructive surgeries and had a history of major depression, anxiety, seizures, peptic ulcers, and fainting spells. Indeed, following the car accident, B.E. had been treated by a psychiatrist in Louisiana and had been taking Trazone, Remeron, and Valium, which made her confused and forgetful. Prior to B.E.‘s death on April 15, 2005, records from Sacred Heart Hospital contemporaneous with Ignasiak‘s treatments of B.E. showed that she was being treated for several medical conditions, many of which stemmed from the car crash, including depression and anxiety, stroke, diverticulitis, recurrent pain syndrome, chronic back pain, hepatitis, diabetes, pancreatitis, hypothyrodism, and hypertension. On her deceased daughter‘s birthday in 2003, her husband took her to the emergency room because she was in
B.E.‘s husband and son both testified that the prescriptions Ignasiak wrote B.E. for Lortab, Valium, Duragesic patches, and Xanax made her lethargic and nonfunctional. On the day B.E. died, B.E. seemed fine, but when her husband returned home from work she was slumped over on the sofa bed and paramedics were not able to revive her. Medical examiner Dr. Andrea Minyard conducted an autopsy three days after B.E.‘s death and testified that she died of multiple drug intoxication. Although Dr. Minyard could not tell what the levels of controlled substances were at the time of death from the blood tested during the autopsy, hospital records showed that the Xanax in B.E.‘s system was in the therapeutic range but the fentanyl was slightly higher than that. Dr. Minyard was unable to rule out the possibility that B.E. died from a stroke she suffered three weeks prior to her death. The Court admitted Dr. Minyard‘s autopsy report of B.E. into evidence.
During Dr. Minyard‘s testimony, the District Court also admitted into evidence, over Ignasiak‘s Confrontation Clause objection, the autopsy reports of9
The government also presented the testimony of another medical examiner, Dr. Gary Cumberland, who had conducted an autopsy of patient M.B. (counts of conviction eighteen and twenty-eight). Dr. Cumberland testified that M.B. was a woman who looked like she had been having a downhill path [from] a medical viewpoint, [and] . . . was heading towards death. Ultimately, Dr. Cumberland concluded that M.B. died of complications from multiple drugs in her system. M.B.‘s toxicology report from blood drawn during the autopsy showed toxic levels of diazepam and morphine.
In addition, the government offered expert testimony concerning the medical propriety of Ignasiak‘s treatments. Pharmacologist Paul Doering reviewed the files of twenty of Ignasiak‘s patients, with a focus on the prescriptions issued to those patients. Dr. Doering testified that certain combinations of drugs—Valium, Duragesic, and Soma—may have a potentially dangerous synergistic effect when used together, that the defendant prescribed such combinations to a number of patients, and that this caused Dr. Doering serious[] concern. Although Dr. Doering was not a physician and therefore would not have diagnosed patients, his review of the twenty patient files corresponding to the indictment caused him concern because the defendant had a pattern of prescribing certain drug combinations that were unhealthy and moreover because it didn‘t look like a whole lot of good was going to come to those combinations. While criticizing Ignasiak‘s long term use of opiods to treat pain, Dr. Doering also acknowledged
Dr. Arthur Jordan, a South Carolina medical doctor who specializes in pain management, was the centerpiece of the government‘s presentation regarding prescribing practices. He testified for almost three days concerning his opinion on the generally accepted treatment philosophy in the field of pain management; the dangers and risks of using narcotics individually or in combination with other drugs; the critical importance of documenting a patient‘s file regarding complaints, care, and treatment; the warning signs of prescription drug abuse; and the responsibility of medical doctors to ensure controlled substances are properly used and prescribed. But Dr. Jordan was not familiar with Florida law and practices concerning pain management and the practice of medicine.
Dr. Jordan reviewed the medical and pharmacy records of the twenty patients named in the indictment. Dr. Jordan offered the opinion that the documentation in Ignasiak‘s charts did not support the quantities and substances prescribed. For each of the patients referenced in the indictment, Dr. Jordan affirmed or stated, over defense counsel‘s objection, that Ignasiak had not prescribed the controlled substances for a legitimate medical purpose or in the usual course of medical practice. Dr. Jordan also testified that M.B. and B.E.
Then on cross-examination, Dr. Jordan acknowledged that, due to the serious medical conditions reflected in the records, a number of Ignasiak‘s treatment practices were reasonable, legitimate, appropriate, the conduct of a doctor and/or in the usual practice of medicine. At least for some of Ignasiak‘s patients, Dr. Jordan acknowledged that it may have been reasonable to treat them with controlled substances, including pain medication, on some occasions. Also, in at least some instances, the records reviewed by Dr. Jordan also reflected that other health care providers had prescribed the same, or similar, controlled substances to the same patients. Furthermore, while Dr. Jordan generally faulted Ignasiak for inadequately documenting his patients’ charts, he recognized that some of the charts showed Ignasiak had counseled his patients on health issues, ordered diagnostic testing, and referred patients to various specialists for further treatment, including pain specialists.
The government also introduced the medical records of eight patients not mentioned in the indictment. These records contained handwritten notations about reports mainly from unidentified or anonymous people claiming that the patients were selling or otherwise abusing their medications. Further, the government
Although Ignasiak did not testify, the defense did call its own expert witnesses to dispute the government‘s allegations. The defense called pharmacology expert Leonard Rappa, who testified that the combinations of drugs prescribed by Ignasiak were not excessive, either individually or in combination, and were appropriate for the conditions documented in the medical records from a pharmaceutical standpoint. He also testified that Ignasiak‘s prescriptions never exceeded the diagnosis-specific dosages and quantities listed in the Physician‘s Desk Reference (PDR), a compilation of all medications, monographs, and FDA approval limitations. The government did not dispute this last point.
Dr. David Fowler, the Chief Medical Examiner for the State of Maryland, reviewed the autopsy reports that were admitted during the trial. He criticized the delays in the autopsies and testified that toxicology reports can be misleading due to the redistribution of drugs in the body after death. Based on a review of the
At the close of the evidence, the District Court denied Ignasiak‘s motion for judgment of acquittal. The jury returned a verdict of guilty as to forty three of the counts and a verdict of not guilty as to eleven counts pertaining to five patients. Ignasiak timely appealed.
II. STANDARDS OF REVIEW
We review the sufficiency of the evidence de novo, viewing the evidence and all reasonable inferences and credibility choices in favor of the government and the jury‘s verdict. United States v. Friske, 640 F.3d 1288, 1290-91 (11th Cir. 2011). A conviction must be affirmed unless there is no reasonable construction of the evidence from which the jury could have found the defendant guilty beyond a reasonable doubt. United States v. Garcia, 405 F.3d 1260, 1269 (11th Cir. 2005). A defendant‘s claim that his
III. DISCUSSION
A. Sufficiency of the Evidence
As noted above, Ignasiak was charged in fourteen counts of health care fraud and forty counts of dispensing controlled substances. The government‘s theory of
The CSA comprehensively regulates the flow of certain classes of drugs in the United States, ranging from common sleep aids to crack cocaine. The statute, which is administered by the Drug Enforcement Agency (“DEA“), provides for the scheduling, rescheduling, and descheduling of controlled substances into one of five categories based on various factors, such as their addictive properties and risk of side effects.
One use authorized under the statute is for medical treatment by a physician registered with the DEA pursuant to his state medical license. See
About the sufficiency of the evidence, there was inculpating evidence of a circumstantial nature that Ignasiak was prescribing controlled substances outside the usual course of professional practice. Indeed, there is evidence in the record showing that Ignasiak sometimes failed to ask for explanations of the erratic
But ample record evidence also suggests that Ignasiak‘s practice exposed him to sick patients afflicted by legitimately painful conditions. Indeed, the medical records of all twenty patients referenced in the indictment document illnesses or conditions that caused them pain, anxiety and/or depression, ailments that could well have justified the use of controlled substances within the range of discretion accorded physicians. It was also not disputed at trial that all of Ignasiak‘s prescriptions were written within the diagnosis-specific guidelines contained in the Physician‘s Desk Reference.
The government relied largely upon medical records at trial. Specifically, of the twenty patients charged in the indictment, the government conducted independent examinations of only two—the autopsies of B.E. and M.B. Further, the government called only one patient referenced in the indictment, K.M., to testify. Rather than calling or examining the remaining seventeen patients named
Based upon this review, we conclude that, when viewed in the light most favorable to the government, the evidence was sufficient to support Ignasiak‘s conviction. In this case, like in Merrill, the government introduced evidence that Ignasiak had written more than 43,000 prescriptions for controlled substances over a five year period, which it then alleged was conduct “outside the usual course of professional practice.” 513 F.3d at 1299-1301. Based upon this evidence, in combination with the experts’ testimony, we cannot say the “jury could not have found the defendant guilty under any reasonable construction of the evidence.” Id. at 1299. Further, the fact the jury acquitted Ignasiak of several counts involving patients who did not testify while convicting him on others, sufficiently minimizes the risk identified in Cuong that Ignasiak‘s jury merely convicted him based only upon “guilt by association.” Cuong, 18 F.3d at 1142.
B. Autopsy Reports
Ignasiak argues that the District Court violated the Confrontation Clause by allowing the government to introduce, and Dr. Minyard to testify about, five
The government argues that the autopsy reports admitted through the
In Crawford v. Washington, 541 U.S. 36, 68-69, 124 S. Ct. 1354, 1374 (2004), the Supreme Court wrote, “[w]here testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.” This means that the prosecution may not introduce “testimonial” hearsay against a criminal defendant, regardless of whether such statements are deemed reliable, unless the defendant has an opportunity to cross-examine the declarant, or unless the declarant is unavailable and the defendant had prior opportunity for cross-examination. Id. at 53-54, 68, 124 S. Ct. at 1365-66, 1374. Crawford described the class of testimonial statements covered by the Confrontation Clause as follows:
Various formulations of this core class of testimonial statements exist: ex parte in-court testimony or its functional equivalent-that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements
that declarants would reasonably expect to be used prosecutorially; extrajudicial statements ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions; statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.
Crawford, at 51-52, 124 S. Ct. 1364 (quotation marks and citations omitted).
Forensic reports constitute testimonial evidence. To wit, in Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S. Ct. 2527 (2009), the Supreme Court held that a forensic laboratory report stating that an unknown substance was cocaine qualifies as testimonial evidence to which the Confrontation Clause applies. Id. at 2532. The Court reasoned that because the certificates are “incontrovertibly a solemn declaration or affirmation made for the purpose of establishing or proving some fact,” they “are functionally identical to live, in-court testimony, doing precisely what a witness does on direct examination“—i.e. offering proof that the substance was cocaine. Id. (quotation marks and citations omitted). As a result, and because scientific evidence is no more neutral or reliable than other testimonial evidence, confrontation serves to ensure its accuracy by “weed[ing] out not only the fraudulent analyst, but the incompetent one as well.” Id. at 2537.
Moreover, the scientific nature of forensic reports does not justify subjecting them to lesser scrutiny than other testimonial evidence. To the contrary, in Bullcoming v. New Mexico, 564 U.S. 647, 131 S. Ct. 2705 (June 23, 2011), the Court
Applying the reasoning of Crawford, Melendez-Diaz, and Bullcoming, we conclude that the five autopsy reports admitted into evidence in conjunction with Dr. Minyard‘s testimony, where she did not personally observe or participate in those autopsies (and where no evidence was presented to show that the coroners
We think the autopsy records presented in this case were prepared “for use at trial.” Under Florida law, the Medical Examiners Commission was created and exists within the Department of Law Enforcement.
“Upon receipt of such notification . . . the district medical examiner . . . shall examine or otherwise take charge of the dead body and shall notify the appropriate law enforcement agency.”
In light of this statutory framework, and the testimony of Dr. Minyard, the autopsy reports in this case were testimonial: “made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” United States v. Baker, 432 F.3d 1189, 1203 (11th Cir. 2005) (quotation marks omitted).18 As such, even though not all Florida autopsy reports will be used in criminal trials, the reports in this case are testimonial and subject to the Confrontation Clause. See United States v. Caraballo, 595 F.3d 1214, 1228-29 (11th Cir. 2010) (finding admission without presentation of original witness of government form that had non-testimonial “primary purpose” did not violate Confrontation Clause).
In short, there is little, if any, raw data or conclusions reflected in T.S.‘s autopsy report—aside from the results of toxicology testing—that is not dependent upon the skill, methodology and judgment exercised by the actual medical examiner who performed the autopsy.20 As T.S.‘s autopsy report illustrates, the reports in this case are replete with the extensive presence and intervention of human hands and exercise of judgment that “presents a risk of error that might be
Our conclusion that the autopsy reports in this case are testimonial compels the rejection of Dr. Minyard‘s live in-court testimony as a constitutionally adequate surrogate for the actual medical examiner who performed the autopsy. Although Dr. Minyard was qualified as an expert, there is no evidence that she observed the autopsies in question. Therefore, Dr. Minyard is in precisely the same position as the surrogate whose testimony was rejected in Bullcoming. Admission of the autopsy reports on solely this testimony—absent evidence that the actual medical examiners who performed the autopsy were unavailable and the accused had a
Further, in addition to the fact that the autopsy reports were admitted into evidence, Ignasiak suffered prejudice because of the significant role that the non-testifying experts played in conducting the autopsies and generating the data contained in the autopsy reports upon which Dr. Minyard based her opinion. That Dr. Minyard may have briefly expressed her own independent agreement with the non-testifying medical examiner‘s conclusions regarding cause of death only compounded the Confrontation Clause error that occurred. Because Dr. Minyard had neither performed nor been present during the autopsies in question, she was not in a position to testify on cross-examination as to the facts surrounding how the
That Dr. Minyard exacerbated the Confrontation Clause violation is also evident from the limits of her testimony. For example, without having done or observed the autopsy, Dr. Minyard could not testify from direct knowledge about the condition of a particular patient‘s heart, lungs or brain and, as a result, whether that patient may have actually died from a heart attack, stroke, or some cause other than drug overdose. To answer that question on cross-examination, Dr. Minyard would have to refer to Dr. Kelly‘s and Dr. Berkland‘s autopsy reports. But as already noted the ultimate conclusions and supporting findings reflected in the autopsy reports are the product of the examiner‘s skill and judgment, not an infallible machine that requires no human intervention. Again, as Melendez-Diaz
Because we determine that Ignasiak‘s Sixth Amendment rights were violated, we must consider whether the error was harmless. United States v. Gari, 572 F.3d 1352, 1362 (11th Cir. 2009). “The test for determining whether a constitutional error is harmless is whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Id. (quotation marks omitted). Although the reports referred to patients not referenced in the indictment, we cannot ignore the powerful impact this collateral evidence must have had on Ignasiak‘s jury. Here, the jury heard live in-court testimony from two different medical examiners, including Dr. Minyard, that two patients referenced in the indictment—M.B. and B.E.—died as a result of intoxication from controlled substances given to them by Ignasiak. But the jury was also permitted
Based upon our review of the entire record in this case, we cannot say beyond a reasonable doubt that admission of the five autopsy reports did not contribute to all of the verdicts obtained. To be sure, each of the counts charged in the indictment represented individual events of either fraud or dispensing controlled substances. But all of the fraud counts shared a common denominator with the controlled substances counts: the government‘s overarching theory of prosecution that Ignasiak had prescribed unnecessary or excessive quantities of controlled substances without a legitimate medical purpose and “outside the usual course of professional practice.”23 In this way, both the substantive fraud and
It bears repeating that, over Ignasiak‘s objections, the government introduced evidence of other patients’ deaths by successfully arguing that this evidence was relevant to all of the charges and admissible under
In this case, the government‘s evidence was not overwhelming. While the government‘s evidence was legally sufficient to support the conviction on appeal, a reasonable jury could have acquitted based on all of the evidence. Our conclusion that the evidence supports the convictions in this case follows from the requirement that we review the evidence in the light most favorable to the prevailing party. See Merrill, 513 F.3d at 1299. Having arrived at this conclusion regarding the sufficiency of the evidence by this route, however, we must be less tolerant of the idea that errors committed during the trial of this case are acceptable because they are harmless. See Strickland v. Washington, 466 U.S. 668, 696, 104 S. Ct. 2052, 2069 (1984) (“a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support“). We cannot conclude that the government, as beneficiary of the constitutional error, proved beyond a reasonable doubt that admitting evidence of five more patients who allegedly died as a result of Ignasiak‘s conduct “did not
IV. NEW TRIAL AND RECORD SEALING APPEALS
In light of our ruling, Ignasiak‘s separate appeal in case number 10-11074 from the denial of his motion for new trial is moot. This is not the case, however, for Ignasiak‘s appeal in case number 09-16005. In that separate proceeding, Ignasiak appeals the District Court‘s denial of his motion to unseal the government‘s post-trial in camera notice to the District Court, which contained impeachment information about the government‘s key witness, Dr. Arthur Jordan. In light of our serious concerns about the government‘s reasons for keeping that notice sealed, we reverse the District Court‘s denial of Ignasiak‘s motion.
To briefly provide background, several months after Ignasiak‘s conviction, the government filed a pleading under seal in the District Court entitled “Government‘s In Camera Notice to the Court” (the “Notice“), along with an affidavit from one of the trial prosecutors, Assistant United States Attorney (“AUSA“) Benjamin Beard. The Notice revealed for the first time that Dr. Jordan engaged in criminal conduct beginning at an unspecified time up to and continuing until 2006. Specifically, Dr. Jordan had, on nine separate occasions, used a counterfeit badge and his United States Marshal credentials to pose as an on-duty
The Notice also set out the government‘s position that the failure to disclose the information did not violate Ignasiak‘s constitutional rights under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963) and Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763 (1972). Specifically, the Notice averred that Ignasiak could not make a successful Brady claim because the prosecutor did not personally know about Dr. Jordan‘s conduct, or the plea agreement, during Ignasiak‘s prosecution.
Shortly after the government filed the Notice, Ignasiak filed a motion to unseal it together with the affidavit. He argued that allowing the government to
We reject this argument made by the government, and therefore we reverse the District Court ruling on this issue.25 In short, our agreement with the government starts and ends with their observation that there exists a presumption of openness in all legal proceedings. United States v. Ochoa-Vasquez, 428 F.3d 1015, 1029-30 (11th Cir. 2005). But the government‘s argument minimizes what is at stake when that presumption of openness is overcome.
First, the value of openness in criminal proceedings extends far beyond just the interests of any particular defendant. Rather, we have explained that:
In balancing the public interest in accessing court documents against a party‘s interest in keeping the information confidential, courts consider, among other factors, whether allowing access would impair court functions or harm legitimate privacy interests, the degree of and likelihood of injury if made public, the reliability of the information, whether there will be an opportunity to respond to the information, whether the information concerns public officials or public concerns, and the availability of a less onerous alternative to sealing the documents.
Romero, 480 F.3d at 1246. Thus, while it is true that Dr. Jordan‘s privacy interests sit on one side of the balance, it is “the interest of the public in accessing the information” that rests on the other. Id. And, in this case, the public has a great interest in learning the contents of the Notice—namely, learning the highly material fact that Dr. Jordan, a repeat government expert witness, abused his government authority and committed acts which could have been charged as felonies. To say that the defense would have preferred to use this information to discredit Dr. Jordan‘s testimony is almost certainly an understatement.
Perhaps ironically, by arguing that there was no Brady violation in this case because the AUSA prosecuting Ignasiak was unaware of Dr. Jordan‘s history, it is actually the government that most persuasively highlights the value in unsealing
But instead the government asserts that Dr. Jordan‘s privacy interest outweighs the public‘s right to know the extent of Dr. Jordan‘s involvement with the government. To be sure, in some cases a party may overcome the presumption of openness if it can show “an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.” Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 510, 104 S. Ct. 819, 824 (1984). Indeed, the government correctly points to two categories of witnesses whose privacy interests are understandably paramount: victims in sex crime cases and criminal informants. Dr. Jordan is neither. Rather, he is an expert witness who, at a rate of $300/hour, voluntarily accepted employment which required him to testify against Ignasiak. Indeed, Dr. Jordan testified that he has
V. CONCLUSION
For all the reasons above, we reverse Ignasiak‘s convictions and remand this case to the District Court for further proceedings. We further vacate the District Court‘s order sealing the government‘s notice filed under seal regarding Dr. Jordan.
REVERSED, VACATED, and REMANDED.
Notes
a prosecution under
§ 841 requires proof beyond a reasonable doubt that the doctor was acting outside the bounds of professional medical practice, as his authority to prescribe controlled substances was being used not for treatment of a patient, but for the purpose of assisting another in the maintenance of a drug habit or of dispensing controlled substances for other than a legitimate medical purpose, i.e. the personal profit of the physician. Proof that the Defendant continued to prescribe massive doses of controlled substances even after he learned that his patients were dying of overdoses goes a long way to establishing that the defendant was knowingly and willfully dispensing controlled substances for other than a legitimate medical purpose, in the ordinary course of his medical practice.
Furthermore, although the First Circuit held United States v. Feliz, 467 F.3d 227, 236-37 (1st Cir. 2006) that an autopsy report is admissible as a business record, id., the Feliz case came before Melendez-Diaz, which as discussed below rejected that same business record argument as applied to the forensic evidence at issue in that case. See 129 S. Ct. at 2538. As such, we conclude that Feliz has little persuasive value on this issue.
(1) Of criminal violence; (2) By accident; (3) By suicide; (4) Suddenly, when in apparent good health; (5) Unattended by a practicing physician or other recognized practitioner; (6) In any prison or penal institution; (7) In police custody; (8) In any suspicious or unusual circumstance; (9) By criminal abortion; (10) By poison; (11) By disease constituting a threat to public health; (12) By disease, injury, or toxic agent resulting from employment; [or] (b) When a dead body is brought into the state without proper medical certification; [or] (c) When a body is to be cremated, dissected, or buried at sea.
More specifically, as to Counts 1 through 14, the scheme to defraud. A scheme to defraud basically states, and the indictment states, that he engaged in a scheme to defraud a health care benefit program and to obtain, by materially false and fraudulent pretenses, representations and promises, health care benefit program money -- in other words, the Medicaid information that you heard during the trial, the Blue Cross information that you heard during the trial, the other insurance money that you heard during the trial, is all money that he gained because of this scheme to defraud.
And that‘s fancy legal terms, basically, for that this doctor did what he did for something other than legitimate purpose, and to defraud the health care benefit programs out of money, out of the money for the prescriptions that were not legitimately prescribed and out of the office visits that were not medically necessary office visits.
While questioned individually by the Court in the presence of the parties, the juror disclosed that she was bothered to hear about suicides or attempts to commit suicide because her son had attempted suicide on a number of occasions. The juror further explained that when an individual commits suicide it is that person‘s choice and that she could not blame another for his or her suicide. Thereafter, the government requested that the juror be excused “based on her inability to fairly and impartially view the evidence with regard to the potential suicides,” although the government acknowledged “[t]here is not a suicide involved in the actual charges.” In response to the District Court‘s question, “[w]hat does that legally have to do with your case?“, the government explained, inter alia:
Well, . . . if the defense is going to argue that these [uncharged patient deaths], instead of having accidently overdosed on drugs, actually committed suicide, then this juror has indicated that this is an emotional response that she is incapable of putting any kind of responsibility on anybody but the patient, which is contrary to the evidence, and shows an inability to be able to fairly and impartially determine whether or not these individuals actually did commit suicide.
Ignasiak opposed discharging the juror, arguing, inter alia, that “all this deals with the 404(b) evidence, which is only going to be used by the jurors to determine lack of mistake or knowledge or intent.” The juror was ultimately removed from further service from the jury.