UNITED STATES of America, Plaintiff-Appellee, v. Christopher William SMITH, also known as Chris Jonson, also known as Tony Spitalie, also known as Robert Jonson also known as Bruce Jonson, Defendant-Appellant.
No. 07-2956.
United States Court of Appeals, Eighth Circuit.
Submitted Feb. 11, 2009. Filed July 28, 2009.
573 F.3d 639
Nicole Ann Engisch, AUSA, argued, Minneapolis, MN, for appellee.
Before LOKEN, Chief Judge, MELLOY and BENTON, Circuit Judges.
MELLOY, Circuit Judge.
This case involves the prosecution of a businessman who sold millions of dollars of prescription drugs over the Internet without valid prescriptions. A jury convicted Christopher William Smith of conspiracy to distribute and dispense controlled substances without an effective prescription in violation of
Smith appeals, challenging his convictions for the above-described offenses on several grounds. He also contests his sentence, arguing that the district court committed a non-harmless procedural error in violation of Supreme Court‘s ruling in Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), and that his sentence is substantively unreasonable. We affirm the convictions, vacate the sentence, and remand for resentencing in light of Gall.
I.
Smith first began selling prescription drugs through Internet websites and spam emails in 2004. Smith‘s business used several different names during its existence, including Xpress Pharmacy Direct (“Xpress“) and Online Payment Solutions (“OPS“). After taking an order online, Smith would distribute controlled substances from abroad to numerous customers throughout the United States. He employed no medical doctors and sold drugs without prescriptions. When his business began experiencing shipping problems, however, Smith limited his operations to the United States. Faced with a stricter regulatory regime, Smith developed an online questionnaire that he required his customers to complete prior to obtaining prescription drugs through his sites. The questionnaire required the customer‘s name, address, date of birth, phone number, height, and weight. It allowed customers to select the type of drug that they wanted to receive and in what quantity. There was also a place on the questionnaire for the customer to list a purported medical condition and any medical allergies. No additional evidence of a purported ailment was required.
Sometime in July 2004, Smith began employing Philip Mach, M.D., to issue prescriptions to the customers who had filled out the questionnaires posted on Smith‘s sites. In addition to being involved with
In addition to the Internet sites, Smith ran call centers both in the United States and abroad. Customers who wished to place an order for a prescription drug could call a center, and operators would fill out a form similar to the online questionnaire. At Smith‘s direction, however, the operators employed at the centers also frequently called prior customers to ask whether they wanted drug refills. Because Smith paid the operators a commission, the more drugs the operators sold the more money they made. Testimony established that the entire purpose of the centers was to “sell, sell, sell.”
Despite allegedly requiring particular information, many of the questionnaires upon which Dr. Mach issued drugs were lacking in the information necessary for a physician to issue an appropriate prescription. Some customers requested controlled substances that were in no way related to their claimed ailments, yet Dr. Mach provided “prescriptions” and Smith provided drugs. Some forms lacked basic identifying information. For example, one questionnaire used an obscene word instead of a name. Even in that case, however, Dr. Mach provided the “prescription,” and Smith provided the drugs. At one point, during an investigation of Smith‘s operations, an undercover agent from the Food and Drug Administration (“FDA“) made three purchases of controlled substances and three purchases of non-controlled substances through one of Smith‘s sites with false information about both his identity and medical conditions. At no point did Smith or Dr. Mach contact him to verify any of the information contained on his questionnaires for any of the purchases.
During his work with Smith‘s online sites and call centers, Dr. Mach approved thousands of “prescriptions” per day and was ultimately responsible for issuing over 72,000 orders for pharmaceuticals from July 2004 until mid-2005. The total drug sales for Smith‘s operation at the time it was shut down in May 2005 was over $24 million. The high rate of prescription approval and the resulting income was not unanticipated, however, as Smith only compensated Dr. Mach for those orders that Dr. Mach approved. For each “prescription” that Dr. Mach issued, Smith would pay him $3.50. Smith paid another $3.50 to a middle man from New Jersey, John Guerriero, who had connected Dr. Mach with Smith. Despite attempts to recruit additional physicians, Smith was unable to solicit anyone other than Dr. Mach to participate in his business.
Smith‘s online sites were not licensed to distribute controlled substances directly. As a result, he sought out licensed “brick and mortar” establishments to fill his orders once Dr. Mach issued a “prescrip-
Around February 2005, the Drug Enforcement Administration (“DEA“) issued a nationwide directive to pharmacies warning about the legitimacy of online pharmaceutical operations. The directive explicitly asserted that a questionnaire was an insufficient method to establish a doctor-patient relationship, as required by federal statute and regulations. Many of the pharmacies that Smith used to fill Dr. Mach‘s “prescriptions” threatened to quit unless Smith provided them with assurances that his business model was in compliance with the DEA directive. In response, Smith arranged to have Dr. Mach and Smith‘s attorney send a letter to the pharmacies. The letter stated that Smith‘s business issued valid prescriptions based on legitimate doctor-patient relationships. Smith concedes that some of the claims made in the letter were false.
Throughout Xpress and OPS‘s existence, other organizations and businesses, including boards of pharmacies and the credit-card company, Mastercard, contacted Smith with concerns about the legality of his operation. As it became clear to Smith that he was the target of a criminal investigation, he began moving operations to Canada, along with the laundered proceeds from the drug sales and the personal property he purchased with those proceeds.
In May 2005, the district court entered a preliminary injunction that shut down Smith‘s online business. The order froze Smith‘s bank accounts and assets and further enjoined Smith from operating any online pharmacy. In violation of that order, Smith immediately traveled to the Dominican Republic in hopes of setting up another online site there, and he even developed a plan to flee permanently from the United States to avoid trial. When he returned to the United States, he was arrested for contempt and released on bond. Smith was indicted in August 2006
Smith challenges his convictions on numerous grounds. First, he alleges that the district court erred in instructing the jury that a prescription‘s validity under
II.
“We review challenges to jury instructions for an abuse of discretion” and “will affirm if the entire charge to the jury, when read as a whole, fairly and adequately contains the law applicable to the case.” United States v. Webster, 442 F.3d 1065, 1067 (8th Cir.2006) (internal quotations omitted). Only where the “instructional error was prejudicial to the defendant” will we reverse. Id.
A. Definition of “Prescription” Under 21 C.F.R. § 1306.04
The [Act] is not violated if a person distributes or dispenses controlled substances pursuant to a lawful prescription issued for a legitimate medical purpose [ ] by an individual practitioner acting in the usual course of his or her professional practice....
The court further defined “usual course of professional practice” as requiring
that the practitioner [have] acted in accordance with a standard of medical practice generally recognized and accepted in the United States. In issuing prescriptions, practitioners are not free to disregard prevailing standards of treatment.
Smith contends that the instruction was improper because the court‘s definition of “usual course of professional practice” ignored the subjective element embodied in
While we have never before had occasion to address explicitly whether “his professional practice” under
Furthermore, the circuit courts to consider a conviction under
Smith‘s argument is further undermined by the regulations use of “professional practice.”
Thus informed by the Supreme Court and other controlling and persuasive precedent, we believe that it was not improper to measure the “usual course of professional practice” under
Smith also argues that the definition of “usual course of professional practice” in Jury Instruction 30 improperly conflated the standard for criminal liability with the standard for medical malpractice and that he was criminally convicted of breaching a civil standard of care. We also find this argument unavailing. While Instruction 30 may have incorporated the standard of care often referenced in medical-malpractice claims, see Boettjer, 569 F.2d at 1081, looking at the jury instructions on the whole, we do not believe that the district court suggested that a breach of a civil standard alone was sufficient to sustain a criminal conviction. See Kershman, 555 F.2d at 201 (“It is axiomatic that the jury instructions should be construed as a whole.“). We are thus confident that Smith‘s conviction rested on the appropriate criminal standard and not on the lesser, civil one.
It is true that courts have recognized a danger in confusing medical-malpractice and
Additional indicators that the instructions did not conflate civil and criminal standards include the fact that the court explicitly instructed that the standard of proof applicable in this case was “beyond a reasonable doubt.” See Katz, 445 F.3d at 1032 (rejecting a claim that the burden of proof was lowered because the court “instructed the jury that they must find beyond a reasonable doubt that [the doctor] wrote prescriptions outside the scope of medical practice and not for a legitimate medical purpose“); Vamos, 797 F.2d at 1153 (“The suggestion that an objective reasonableness standard exposes a physician to criminal responsibility for nothing more than the equivalent of malpractice ignores the fact that in a criminal prosecution the physician may be found guilty only upon proof beyond a reasonable doubt that he acted outside the scope of medical practice....“). The court also allowed Smith the possibility of a good-faith defense,4
B. “Prescription” Under 21 U.S.C. §§ 331(a) , 333(a)(2) , 353(b)(1)
Title
A “prescription” [under the Act] and in these instructions means only a valid prescription. A valid prescription means one issued in the usual course of professional practice and for a legitimate medical purpose, as explained earlier in the Instructions.
Despite the fact that
To determine whether the prescription must be valid to preclude Smith‘s conviction, we find helpful a case in the U.S. District Court for the Southern District of Florida. See United States v. Nazir, 211 F.Supp.2d. 1372 (S.D.Fla.2002). Nazir addressed the meaning of “prescription” under
the word prescription in
§ 353(b)(1) , in common parlance, means only a bona fide order—i.e., directions for the preparation and administration of a medicine, remedy, or drug for a real patient who actually needs it after some sort of examination or consultation by a licensed doctor—and does not include pieces of paper by which physicians are directing the issuance of a medicine, remedy, or drug to patients who do not need it, persons they have never met, or individuals who do not exist.
Id. In affirming the district court‘s conclusion, the Eleventh Circuit described
In addition to the common meaning of the word, interpretive case law is also helpful in defining “prescription” under the statute. Cf. Gellman v. United States, 235 F.2d 87, 93 (8th Cir.1956) (“Where words are susceptible of several meanings, the court is at liberty to determine from the legislative history and surrounding circumstances the sense in which the words were used in a statute.“). While this court has not addressed the meaning of “prescription” under
In White, while addressing a conviction under a different statutory provision, we discussed favorably the Fifth Circuit‘s ultimate conclusion in Brown. White, 399 F.2d at 817-18. In White, a doctor had frequently provided controlled substances to numerous people, including an undercover agent. Id. at 815-16. This was despite the fact that the doctor had asked “no questions concerning the state of [the recipients‘] health.” Id. A jury convicted the doctor under then-existing provisions of the FDCA that prohibited “the sale,
Besides contravening the common meaning of “prescription” and contradicting persuasive authority, not requiring a “valid” prescription would undermine the FDCA‘s purpose by allowing practitioners to write fraudulent prescriptions (or prescriptions that otherwise contravened the law) and escape criminal liability for such acts. Treating a prescription as a piece of paper divorced from its context—i.e., with no analysis as to whether it is valid—would, in effect, exempt licensed practitioners from prosecution under the misbranding statute all together. See Kordel v. United States, 335 U.S. 345, 349, 69 S.Ct. 106, 93 L.Ed. 52 (1948) (“[T]here is no canon against using common sense in reading a criminal law, so that strained and technical constructions do not defeat its purpose by creating exceptions from or loopholes in it.“). The purpose of misbranding laws is to protect the public from potentially dangerous drugs. See Brown, 250 F.2d at 747 (“The Supreme Court has on several occasions held that the purpose of the legislation is the protection of the people from dangerous products ....“) (citing United States v. Dotterweich, 320 U.S. 277, 64 S.Ct. 134, 88 L.Ed. 48 (1943); United States v. Sullivan, 332 U.S. 689, 68 S.Ct. 331, 92 L.Ed. 297 (1948)); see also Nazir, 211 F.Supp.2d. at 1375-76 (concluding that the statute should not be interpreted to render the expressed need for physician supervision a nullity). And we refuse to construe the statute in a way that would significantly undermine that purpose.
We further conclude that the district court did not err in defining a “valid prescription” as one issued in the “usual course of professional practice and for a legitimate medical purpose,” distinguishing between the two and requiring a finding of both. First, it was proper to require that the prescription be for a “legitimate medical purpose.” See Webb, 249 U.S. at 99-100, 39 S.Ct. 217. Second, as established above, a valid prescription requires a bona fide physician-patient relationship. Whether a prescription was issued in the “usual course of professional practice” required that the jury inquire into whether Dr. Mach adhered to prevailing medical standards when issuing his prescriptions. Many of the factors that establish the existence of a physician-patient relationship and thus a valid prescription under the statute—such as whether Dr. Mach considered the actual needs of the patient, the quantity of the drug he prescribed, the type of drugs he prescribed and for what
C. Rule of Lenity
The rule of lenity fails to save Smith‘s arguments that the challenged jury instructions were erroneous. The rule requires that “ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.” Cleveland v. United States, 531 U.S. 12, 25, 121 S.Ct. 365, 148 L.Ed.2d 221 (2000) (quotation omitted). The rule, however, should not be invoked if ambiguity can be otherwise resolved. United States v. Kowal, 527 F.3d 741, 747 (8th Cir.), cert. denied, U.S. , 129 S.Ct. 612, 172 L.Ed.2d 468 (2008). Given that the CSA‘s and FDCA‘s structure and language resolve any ambiguities contained within “his professional practice” or “prescription,” as outlined above, “the rule of lenity is not implicated here.” Id.
III.
Smith also challenges the district court‘s failure to exclude certain expert testimony and other allegedly prejudicial evidence. “We review the district court‘s evidentiary rulings for abuse of discretion.” Katz, 445 F.3d at 1031 (quotation omitted). “Even where we find that the district court has abused its discretion with respect to an evidentiary ruling, we will not reverse the conviction if the error was harmless.” United States v. Lupino, 301 F.3d 642, 645 (8th Cir.2002).
A. Expert Testimony
The Government offered expert testimony from Dr. Carmen Catizone, a pharmacist. Smith argues that Catizone‘s testimony exceeded the scope of his expertise when he testified about the standard of care to which a doctor must adhere in order to prescribe properly a controlled substance. More specifically, Smith challenges the admissibility of Catizone‘s testimony regarding the type of medical practice that satisfies
“Federal Rule of Evidence 702 permits a district court to allow the testimony of a witness whose knowledge, skill, training, experience, or education will assist a trier of fact in understanding the evidence or to determine a fact in issue.” United States v. Kirkie, 261 F.3d 761, 765 (8th Cir.2001) (citing Fed.R.Evid. 702). We have previously admitted “testimony tying standards of care to the existence of a legitimate medical purpose to write a prescription.” Katz, 445 F.3d at 1032.
Despite the fact that Catizone was not a medical doctor, we find that his testimony regarding the type of information a doctor should have to prescribe a particular drug, and whether Dr. Mach met that standard, fell within his expertise. Catizone is a certified pharmacist and has been the executive director of the National Association of Boards of Pharmacy (“NABP“) for twenty years. The NABP drafts model laws regulating pharmaceuticals, which necessitates that Catizone be particularly familiar with both the CSA and the FDCA. Furthermore, Catizone annually gives testimony before Congress, state legislatures, and state committees on Internet pharmacies and the relevant laws. Through his
As a result, Catizone‘s job requires a working knowledge of what constitutes a valid prescription, and this cannot be divorced from having an awareness as to the quantity and quality of patient information a doctor must have in order to prescribe a particular drug. See United States v. Jones, 570 F.2d 765, 769 (8th Cir.1978) (“Dr. Burton testified that before prescribing any drug, a physician must take a medical history and make some physical examination. Witness Burton possesses a Ph.D. in pharmacology. Although not an M.D., his twenty years of teaching at the Washington University Medical School qualifies him as an expert entitled to express an opinion as to medical procedures in prescribing drugs ....“); see also United States v. Bek, 493 F.3d 790, 797 (7th Cir.), cert. denied, U.S. , 128 S.Ct. 549, 169 L.Ed.2d 374 (2007) (noting “expert testimony from a pharmacist who explained that [the doctor‘s] practices were dangerous and very unusual” and that the doctor “should have conducted several diagnostic tests and reviewed patients’ medical histories before prescribing drugs such as Vicodin“).
Catizone has also helped the Government identify over 1,500 “rogue pharmacies,” or pharmacies that operate in contravention of state and federal law and offer medications to patients or customers without legitimate or valid prescriptions. In fact, Smith concedes that Catizone is an expert in identifying rogue pharmacies. Factors that Catizone uses to make a determination of whether a pharmacy is rogue under the NABP standards include the type of medical information the site requests and whether it requires face-to-face interaction. In order to properly identify a rogue pharmacy, then, Catizone must pass judgment on the substance of a patient-doctor interaction. Again, to make this determination it is important that Catizone have in-depth knowledge regarding what is needed for a medical doctor to issue a legitimate prescription under prevailing practice, and it is apparent from his testimony that he did.
We do not doubt that there may be instances in which a pharmacist is not qualified to provide expert testimony on the standard of care necessary to prescribe a particular drug. Given Catizone‘s background and extensive involvement with identifying rogue pharmacies, however, the district court‘s refusal to exclude this testimony does not constitute an abuse of discretion. Catizone thus properly testified within his expertise as to the type of relationship usually considered necessary for a doctor to issue a valid prescription.
Furthermore, while we find Catizone‘s testimony about the legal meaning of
Q. I am showing you a copy of
21 CFR 1306.04 . Are you familiar with this law?A. Yes.
Q. What do the phrases, included in this law, “usual course of professional practice” and “legitimate medical purpose” mean?
[A.] Based upon my knowledge of state laws and also the Controlled Substances Act, this refers to the scope of practice that a physician may engage in and also responsibility for that physician to follow all of the laws and requirements as indicated in federal and state law.
....
Q. You‘ll notice that I have circled the word “his” in this particular regulation. Why is that included in 1306.04?
Well, where it indicates “his professional practice,” does that mean we are dealing with a subjective standard of professional practice?
[A.] No. What we‘re dealing with here is a discretion that‘s provided to the physician to operate within their practice, but the physician must still follow all of the laws governing that practice. Moreover, it is “the judge and not a witness” that “is to instruct the fact finder on the applicable principles of law.” Hogan v. Am. Tel. & Tel. Co., 812 F.2d 409, 411 (8th Cir.1987) (per curiam) (citing Marx & Co., Inc. v. Diners’ Club Inc., 550 F.2d 505, 509-10 (2d Cir.1977) (“It is not for witnesses to instruct the jury as to applicable principles of law, but for the judge.... The special legal knowledge of the judge makes the witness’ testimony superfluous.“)).
This error alone does not necessarily warrant reversal. Here, Catizone‘s testimony, although beyond his expertise, stated the correct formulation of the law. More importantly, the district court ultimately instructed as to the correct legal standard under
B. Prejudicial Evidence
Smith also argues that the district court erred in failing to exclude various unduly prejudicial and irrelevant statements of a Government cooperating witness. The witness testified that Smith had sent him to Prague to solicit prostitutes on Smith‘s behalf and that Smith and the witness intended to become “international pimps.” The Government argues that the evidence of solicitation was admissible to head-off a co-defendant‘s attempt to impeach the Government witness‘s credibility under Federal Rule of Evidence 608 and also as non-character evidence admissible to show Smith‘s intent to commit his substantive offenses under Federal Rule of Evidence 404(b). The Government alternatively claims that Smith‘s co-defendant “opened the door” to the evidence by raising it on cross-examination and that there can be no reversible error. See United States v. Beason, 220 F.3d 964, 968 (8th Cir.2000) (“It is fundamental that where the defendant ‘opened the door’ and ‘invited error’ there can be no reversible error.” (quotation omitted)).
Assuming without deciding that the challenged evidence was inadmissible impeachment evidence and inadmissible non-character evidence, and assuming without deciding that a co-defendant‘s testimony that is prejudicial to another codefendant does not open the door to the evidence, we find that any such error was harmless
Although Smith argues that the testimony made Smith “look like a lowlife with a criminal character,” which “clearly stuck with the jury” and formed the basis of the conviction, we must view the error in light of the evidentiary record as a whole. This analysis includes “the overall strength of the prosecution‘s case.” United States v. Honken, 541 F.3d 1146, 1160 (8th Cir.2008) (quotation omitted); United States v. No Neck, 472 F.3d 1048, 1054 (8th Cir.2007) (indicating that the proper question is whether “the guilty verdict actually rendered in this trial was surely unattributable to the error” (quoting Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) (emphasis omitted))). In view of the extensive testimony and documentary evidence that the Government presented detailing Smith‘s operation of the rogue pharmacy during more than twenty days of trial, discussed infra, the evidence of Smith‘s guilt is overwhelming. Having carefully reviewed the record, we conclude that any evidentiary error did not affect Smith‘s substantial rights and was harmless. See United States v. McCauley, 601 F.2d 336, 339 (8th Cir.1979) (finding that the admission of a recording that contained “vulgarity, racial slurs, and cavalier statements concerning past [bad acts] ... was harmless [error] given the overwhelming evidence of [the defendant‘s] guilt of the crime charged“).
In addition to evidence of Smith‘s attempted solicitation, Smith also contends that the district court abused its discretion by allowing testimonial evidence concerning a wrongful death suit filed against Smith‘s business. The suit alleged that a drug addict had ordered drugs from Smith‘s business and subsequently committed suicide. The witness testified that Smith was unconcerned by the suit and had laughed upon learning of the death. Smith objected to the testimony. After sustaining the objection, the court issued a curative instruction telling the jury to disregard evidence of the death because there was no link between OPS and the suicide. The court also issued a similar instruction prior to submitting the case to the jury for deliberation.
“The admission of allegedly prejudicial testimony is ordinarily cured by an instruction to the jury to disregard the testimony.” United States v. Nelson, 984 F.2d 894, 897 (8th Cir.1993). It is our role, however, to “determine with fair assurance whether, in spite of the instruction, the verdict was substantially swayed by the error.” Id. (quotation omitted). When considering the “prejudicial effect of any allegedly improper testimony,” we look to “the trial context of the error[] and the prejudice created thereby as juxtaposed against the strength of the evidence of the [defendant‘s] guilt.” Id. “This court will affirm a conviction, despite the introduction of an inadvertent prejudicial comment, where there was ‘substantial evidence’ of guilt.” United States v. Urick, 431 F.3d 300, 304 (8th Cir.2005). While the testimony here concerning the wrongful-death suit was improper, the court immediately issued a curative instruction to the jury and further informed the jury that it was to disregard the evidence of the suicide at the close of the case, even absent such a request from Smith. See Nelson, 984 F.2d at 897 (noting how “aggressively” the district court acted to cure the error). Furthermore, as discussed infra, the evidence as to Smith‘s guilt was overwhelming. See id. We thus conclude again that the district court committed no reversible evidentiary error.
“This court reviews the sufficiency of the evidence de novo, viewing the evidence in the light most favorable to the government, with all reasonable inferences and credibility determinations made in support of the jury‘s verdict.” Katz, 445 F.3d at 1028 (quotation omitted). Smith argues that there was insufficient evidence for a reasonable jury to determine that Dr. Mach issued prescriptions outside of the “usual course of his professional practice” and thus for this court to sustain his conspiracy and aiding and abetting convictions under
“A prosecution under
Perhaps the most probative evidence that Dr. Mach was prescribing drugs to “assist[] another in the maintenance of a drug habit or ... for other than a legitimate medical purpose,” id., is that Dr. Mach himself explicitly so stated. In addition to this admission, Dr. Mach further testified about his traditional medical practice and his prescription policy prior to working with online pharmacies. That policy required face-to-face consultations so that Dr. Mach was able to obtain what he considered the information necessary to prescribe an appropriate drug in an appropriate quantity. Dr. Mach explained that his work with the online pharmacy differed from his office practice because “[t]here was never an established doctor/patient relationship. There was never a face-to-face examination. There was never a history. There was no physical examination. There was no legitimate prescription written and signed and the prescriptions were not valid.” See United States v. Hayes, 595 F.2d 258, 261 (5th Cir.1979) (upholding conviction of a pharmacist where the doctor testified “that any prescriptions written by [the doctor] were not written in the usual course of medical practice or for legitimate medical purpose“). To the extent the Smith‘s challenge to the sufficiency of the evidence asks us to review the jury‘s conclusion that Dr. Mach was credible, we decline. Not only are “[q]uestions involving the credibility of witnesses ... for the jury to resolve,” but Dr. Mach‘s testimony was corroborated by additional documentary and testimonial evidence. United States v. Lop Bounmy, 403 F.3d 1018, 1021 (8th Cir.2005) (“[T]he uncorroborated testimony of an accomplice is sufficient to sustain a conviction if it is not otherwise incredible or unsubstantial on its face.” (quotation omitted)).
Additional evidence supporting Smith‘s conviction includes testimony that Dr. Mach never physically examined or even met with those who were the recipients of the controlled substances before writing over 72,000 prescriptions. The evidence further indicates that Dr. Mach approved each order submitted to him, despite the fact that, in at least one instance, the name on the prescription was an obscene word and not a person. Dr. Mach placed no limit on the type of drugs that he would prescribe, allowed customers to choose the type and brand of drug that they desired for their self-stated alleged medical conditions, provided no limitations on the quan-
Catizone‘s testimony regarding the applicable standard of care further supports Smith‘s conviction. As discussed above, Catizone testified within his expertise as to whether or not Dr. Mach issued prescriptions in accordance with generally prevailing medical standards. He identified several factors pointing to the conclusion that the online pharmacy through which Dr. Mach issued those prescriptions was not legitimate and that the prescriptions were thus invalid. Such indicators included the fact that the questionnaires often failed to list the customer‘s ailment, the reason for the prescription, and other relevant information about the patient‘s medications and/or allergies. Additionally, Catizone testified that the prescriptions that Dr. Mach issued were for excessive quantities of drugs relative to the medical condition the prescription was allegedly treating. Dr. Mach also at times prescribed a drug that was not intended or appropriate to treat the claimed ailment. Catizone further questioned Dr. Mach‘s ability to approve the 72,000 prescriptions at issue, at times, over 1,000 in a single day, given that the “medical literature has reported that the average time it takes for a physician ... to conduct a medication or patient profile is ... between twelve and twenty minutes.” He further pointed out the disproportionately high percentage of controlled substances that Dr. Mach prescribed relative to prescriptions for non-controlled substances used to treat illnesses or diseases such as diabetes and high blood pressure.
In conclusion, viewing the evidence in a light most favorable to the Government, we consider it sufficient to support the jury‘s conclusion that Dr. Mach issued the prescriptions outside the ordinary course of professional practice and without legitimate medical purpose. Smith‘s conviction must stand.
V.
Finally, Smith argues that the district court committed a procedural sentencing error when it required that Smith show extraordinary circumstances to merit a downward variance. Smith also argues that his sentence of 360 months’ imprisonment was substantively unreasonable. Because we find reversible procedural error, we do not address Smith‘s substantive-reasonableness argument.
A. Standard of Review
Reviewing a sentence, this court must “first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the
If the defendant properly preserves a procedural error, our review is for harmless error. United States v. Henson, 550 F.3d 739, 741 (8th Cir.2008), cert. denied, U.S. , 129 S.Ct. 2736, 174 L.Ed.2d 250 (2009). “This circuit requires more than a request for a non-guidelines sentence in order to preserve ... Gall error; the defendant must object to the district court‘s erroneous application of the law.” United States v. Bain, 537 F.3d 876, 881 (8th Cir.2008), vacated and remanded on other grounds, U.S. , 129 S.Ct. 2157, 173 L.Ed.2d 1153 (2009). If a party fails to object in the district court, we review a procedural sentencing error for plain error. See United States v. Burnette, 518 F.3d 942, 946 (8th Cir.2008).
The Government asserts that Smith failed to preserve his objection to the court‘s treatment of his request for a downward variance and that our review is one of plain error. We disagree. While failing to use the word “object,” Smith engaged in a lengthy dialogue with the district court about the Eighth Circuit‘s “draconian” and “unreasonable” precedent in relation to the district court‘s ability to grant a variance. Smith also discussed the fact that the Supreme Court had granted certiorari in United States v. Gall, 446 F.3d 884 (8th Cir.2006), rev‘d 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), to address what he characterized as “unreasonable” precedent. Finally, he further emphasized that the Supreme Court‘s determination that the Guidelines are “truly advisory” must govern.
Contrary to the Government‘s claim, Smith‘s statements were beyond a simple request for a non-Guidelines sentence and amount to more than mere commentary about the perceived unfairness of the law. Cf. Bain, 537 F.3d at 881 (applying plain-error review when the defendant “inform[ed] the judge of the course of action he wished the judge to take“—i.e., receive a non-Guidelines sentence—and “stat[ed] the exact sentence sought“); Alvizo-Trujillo, 521 F.3d at 1018 (reviewing for plain error where the statement to be construed as an objection “was merely commentary” about the Guidelines range being “unreasonably high” and “was made before the district court announced the improper presumption and the sentence“); Burnette, 518 F.3d at 946–47 (“After withdrawing his objections to the PSR, [the defendant] made no further objections to his sentence.“). Given Smith‘s statements and their context, we find that he preserved the error for appeal. See United States v. Pirani, 406 F.3d 543, 549 (8th Cir.2005) (en banc) (“To preserve an error ... an objection must be timely and must clearly state the grounds for the objection.” (internal quotation and alteration omitted)). We therefore review for harmless error.
B. Procedural Error in Sentencing
The district court sentenced Smith to 360 months’ imprisonment in August 2007, four months prior to the Supreme Court‘s decision in Gall. Before Gall, “[o]ur cases required that the justification for a variance be proportional to the extent of the difference between the advisory range and the sentence imposed.” United States v. Marron-Garcia, 555 F.3d 1040, 1041 (8th Cir.2009) (quotation omitted). “One formulation [of this proportionality review] asked whether an ‘extraordinary variance’
We have several times stated that “[u]nder this court‘s pre-Gall legal framework, district courts had less discretion to make a major variance than they now enjoy [post-Gall], but [that] they had ample discretion to make a minor variance.” Marron-Garcia, 555 F.3d at 1040, 1041 (internal citation and quotation omitted); see also Lee, 553 F.3d at 602 (“[T]he pre-Gall legal framework gave district courts less discretion to make a major variance than they now enjoy.“). The current state of the law stems from the fact that while Gall made clear that we may no longer require “extraordinary’ circumstances to justify a sentence outside the Guidelines range,” this court‘s rule had not been to “require extraordinary circumstances to justify every non-guideline sentence.” Marron-Garcia, 555 F.3d at 1041 (quotation omitted).
Smith claims that given the state of the law at the time of his sentencing, and the lack of clarity concerning the amount of discretion district-court judges possessed to make major variances, the district court did not fully realize the extent of its discretion to impose a below-Guidelines sentence. As a result, Smith claims that the district court should have the opportunity to reconsider the sentence in light of Gall.
During the sentencing phase of his trial, Smith argued for a downward variance from 360 months to life to the statutory minimum of 240 months. His argument was based on numerous grounds, including the potential sentencing disparities with other online-pharmacy cases. In making his motion, he emphasized that the court was empowered to grant the variance in its discretion. But the court refused, stating:
[Y]ou know what the circuit does for every variance that a judge does for a departure downwards, it essentially reverses. ... I placed somebody on probation and home detention and they said, No, you can‘t do that variance. ... And so ... it‘s clear, coming from our circuit, they don‘t even want to see any type of variance downwards unless it can be so agreed to, almost, by the Government (emphasis added).
Addressing the potential-sentencing-disparity argument specifically, the court responded that it had “been reversed a number of times dealing with variances and departures ... based on the issue of similiar[ly] situated defendants.” The court further stated that even “if there‘s a variance that‘s going to be granted, it can‘t be to 20 years because from 360 to 240, that‘s automatic reversal.” We agree with Smith that these comments raise questions about whether the district court doubted that, as a practical matter in our circuit pre-Gall, it possessed the discretion to vary significantly to the requested statutory minimum. And, as a result, we find that the district court committed procedural error.
Furthermore, we do not find the error harmless. “The government bears the burden of proving the district court‘s error was harmless and must show that no grave doubt exists as to whether the error substantially influenced the out-
As the dissent aptly states, we recognize that the sentencing judge‘s Statement of Reasons is a “critical part of the sentencing record,” and we acknowledge the comprehensive nature of the district court‘s statements here. We do not believe, however, that the district court‘s statements that it had “power to grant a variance from the Guideline range” and that a “sentence within the Guideline range is reasonable” undercuts a finding of procedural error in this case. Nor do we believe that these statements differ from the statements the district court made during sentencing. Both the sentencing transcript and the Statement of Reasons indicate that the district court believed that it could vary. The sentencing transcript also indicates, however, that the district court believed that its power to do so was constrained by then-Eighth Circuit precedent and nothing in the Statement of Reasons contradicts that. Given the court‘s statements and the context of Smith‘s sentencing, we are not convinced that the district court‘s statement that it knew it had the power to vary necessitates a conclusion that the district court was confident in the level of discretion it had to grant a departure of the magnitude that Smith requested upon the justifications that Smith presented.
In sum, the district court indicated that Smith‘s claim for a variance had “some merit,”6 but it generally seemed to have felt constrained by Eighth Circuit practice. Rather than insulting the judge, then, we believe that remanding the case to allow the district court to re-sentence Smith in the first instance after Gall provides the district court with the due deference it deserves to perform its charge with the guidance of clearer precedent. It may be, in fact, that the district court finds that the sentence it originally imposed upon Smith was appropriate, but we prefer to give the district court the chance to exercise that sentencing discretion now that more clarity exists as to its discretion and the level of scrutiny this court will impose. See United States v. Feemster, 572 F.3d 455, 647 (8th Cir.2009) (en banc).
Accordingly, we vacate Smith‘s sentence and remand for resentencing.
VI.
Having considered all of the issues raised by the defendant on appeal, we affirm the judgment of conviction. We vacate the sentence, however, and remand in light of Gall.
LOKEN, Chief Judge, concurring in part and dissenting in part.
I join Parts I–IV of the court‘s opinion. But I dissent from Part V, which misrepresents the sentencing record and ignores relevant prior decisions in contriving a supposed procedure error that imposes unnecessary burdens on a busy, careful and experienced sentencing judge, Chief Judge Michael J. Davis of the United States District Court for the District of Minnesota.
1. Some ten years ago, at the urging of the Sentencing Commission, the Judicial Conference Criminal Law Committee reminded district judges that the Statement of Reasons portion of the judiciary‘s Judgment in a Criminal Case form should be completed as part of every sentence. Compliance, which had been rather lax, is now nearly universal. The Statement of
Although the Court acknowledges its power to grant a variance from the Guideline range, the Court concludes that a sentence within the Guideline range is reasonable. Smith was a drug kingpin who received great financial gain from his illegal activities while consciously disregarding the risk of death or serious bodily injury to the addicts, upon whose addictions his profits were based.... Smith plotted to kill a Government witness and attempted to continue his fraudulent scheme in three different countries.... Smith has demonstrated that he does not obey Court orders and that, in the absence of a serious Guideline sentence, he is likely to reoffend....
Although the Court has concluded that a Guideline sentence is reasonable in this case, a sentence at the low end of the Guideline range is sufficient....
(Emphasis added.) Part V pays lip service to Chief Judge Davis‘s Statement of Reasons but refuses to believe it.
2. Prior to the sentencing hearing, Smith filed a memorandum urging Chief Judge Davis to grant a variance down to the mandatory minimum sentence of 240 months in prison. As Part V notes, in denying Smith the ten-year downward variance he requested, Chief Judge Davis commented, “if there‘s a variance that‘s going to be granted, it can‘t be to 20 years because ... from 360 to 240, that‘s automatic reversal.” The comment reflected our pre-Gall cases requiring that an extraordinary variance be justified by extraordinary circumstances, a formulation rejected in Gall. 128 S.Ct. at 595. However, as Part V acknowledges, the Supreme Court in Gall reaffirmed the proportionality principle when it stated, “We find it uncontroversial that a major departure should be supported by a more significant justification than a minor one,” id. at 597. Putting aside the hyperbolic reference to “automatic reversal,” and focusing on the Statement of Reasons, there was no procedural error in denying the variance Smith requested because Gall did not change the fact that, as Chief Judge Davis determined, Smith requested a “major departure” but presented no “significant justification.”
3. The Sentencing Commission‘s “Sourcebook of Federal Sentencing Statistics” for the three fiscal years prior to Smith‘s sentencing reveal that District of Minnesota judges granted downward judicial variances in 22%, 21%, and 15% of their post-Booker cases, ranking seventh, eighth, and fifteenth out of the ninety-four federal district courts in that category. See Table 26 in the 2005, 2006, and 2007 Sourcebooks. Less than two months before Smith‘s sentencing, and six months before the Supreme Court decided Gall,
Part V emphasizes Chief Judge Davis‘s comments at sentencing expressing frustration at being reversed “a number of times” for granting downward variances. But Chief Judge Davis expressly stated he was speaking “hypothetically,” and the comments referred to cases in which he varied downward from a prison sentence to a non-prison sentence, cases presenting the same type of variance later upheld in Gall. See United States v. Miller, 484 F.3d 964, 965-67 (8th Cir.2007), vacated and remanded, U.S. , 128 S.Ct. 871, 169 L.Ed.2d 715 (2008); United States v. Gayekpar, 211 Fed.Appx. 533, 535-36 (8th Cir.2007) (unpublished). In December 2006, we affirmed Judge Magnuson‘s grant of a variance from eighteen months in prison to five years’ probation in a high-profile case, which demonstrated to District of Minnesota judges that even downward variances to non-prison sentences were not automatically reversed. United States v. Wadena, 470 F.3d 735, 736-37, 740 (8th Cir.2006). Particularly in light of the Statement of Reasons, Chief Judge Davis‘s comments do not suggest a belief that he had no authority to grant a substantial variance to Smith.
The sentencing record in this case is a far cry from the sentencing records in the cases on which Part V relies, such as United States v. Greene, 513 F.3d 904, 907 (8th Cir.2008). Here, the entire sentencing record, including particularly the elaborate Statement of Reasons, leaves me with complete confidence that Chief Judge Davis would not have granted Smith a downward variance had the sentence been imposed a few months after, instead of a few months before, the Supreme Court‘s decision in Gall. As the sentence was imposed without procedural error and is reasonable, it should be affirmed. Accordingly, I respectfully dissent from Part V.