   Case: 11-40033          Document: 00511743059             Page: 1      Date Filed: 01/31/2012




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                                      FILED
                                                                                   January 31, 2012
                                            No. 11-40033
                                                                                     Lyle W. Cayce
                                                                                          Clerk



UNITED STATES OF AMERICA,

                                                         Plaintiff-Appellee,

versus

DAVID ALAN VOGEL,

                                                         Defendant-Appellant.




                      Appeal from the United States District Court
                           for the Eastern District of Texas
                                   No. 4:08-CR-224




Before JONES, Chief Judge, HIGGINBOTHAM and SMITH, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*


        David Vogel was the owner and operator of the Madison Pain Clinic
(“MPC”), an Internet-based business headquartered in Dallas. MPC marketed
itself as a pain management clinic to sufferers of chronic pain, and its physicians


        *
          Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published
and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
   Case: 11-40033   Document: 00511743059        Page: 2   Date Filed: 01/31/2012



                                  No. 11-40033

most often treated their patients by prescribing a specially-compounded form of
hydrocodone, a potentially addictive painkiller generally classified as a Sched-
ule III narcotic under the Controlled Substances Act (“CSA”). From 2000 to
2007, MPC reported about $26 million in revenue, $8 million of which went to
Vogel.
      After reports and complaints, the Drug Enforcement Administration initi-
ated an investigation that culminated in a raid of MPC’s Dallas office in Novem-
ber 2007. Vogel was charged with conspiracy to manufacture, distribute, or dis-
pense a controlled substance in violation of 21 U.S.C. § 846, conspiracy to com-
mit money laundering in violation of 18 U.S.C. § 1956(h), and engaging in a
monetary transaction in property derived from a specified unlawful activity in
violation of 18 U.S.C. § 1957.
      There was an eight-day trial that revolved around two competing narra-
tives. The prosecution claimed Vogel knew MPC was breaking the law by issu-
ing prescriptions outside the usual course of professional practice and without
a legitimate medical purpose, but he was making too much money to care, using
MPC to support his drug addiction and deliberately hiring doctors and employ-
ees who would not challenge him. The defense insisted Vogel lacked the neces-
sary mens rea to be convicted, portraying him as a well-intentioned entrepreneur
led astray by unclear regulations and bad advice from doctors and lawyers.
      The jury returned a guilty verdict on all counts and a special verdict for
a forfeiture of $4,376,471.39 in cash proceeds and a money judgment of
$24,743,000, which constituted all of the property and proceeds the government
alleged were traceable to MPC’s drugs sales. The district court sentenced Vogel
to 60 months’ imprisonment for violating the CSA, 240 months for money laun-
dering, and 120 months for violating 18 U.S.C. § 1957, all to run concurrently.
Vogel appeals his conviction and sentence on thirteen grounds.
      Vogel contends the government failed to provide sufficient evidence to

                                       2
   Case: 11-40033           Document: 00511743059              Page: 3       Date Filed: 01/31/2012



                                               No. 11-40033

prove beyond a reasonable doubt that he acted with the specific intent to violate
the law when he conspired to manufacture, distribute, or dispense controlled
substances outside the usual course of professional practice and not for a legiti-
mate medical purpose. After a thorough review of the record, and especially in
view of the “highly deferential” standard with which we review jury verdicts,
United States v. McNealy, 625 F.3d 858, 870 (5th Cir. 2010), we conclude that
the evidence was more than sufficient for the jury to find beyond a reasonable
doubt that Vogel, through his operation of MPC, knowingly violated the CSA.
      Vogel’s other challenges to his conviction are similarly unavailing. We
reject his various objections to the jury instructions, concluding that they ade-
quately instructed the jury as to the elements of the crime, standards of proof,
and possible defenses. The district court did not abuse its discretion in admit-
ting certain evidence to which Vogel objected, and even if it was improperly
admitted, any error was harmless and did not affect substantial rights.
      Similarly, the court did not abuse its discretion in denying Vogel’s motion
for a mistrial when the prosecutor accidentally revealed that Vogel had been
incarcerated, because the misconduct was not “so pronounced and persistent
that it permeate[d] the entire atmosphere of the trial and cast serious doubt
upon the correctness of the jury’s verdict.” United States v. Wallace, 32 F.3d 921,
926 (5th Cir. 1994) (citations and internal quotation marks omitted). Finally,
Vogel’s two constitutional objections to his convictions have no merit, because his
right to present witnesses was in no way infringed by the prosecution’s filing of
a sealed advisory to the district court that several witnesses on Vogel’s list were
potential co-conspirators who needed to be informed of their Fifth Amendment
rights against self incrimination, and because, as we have consistently held, the
CSA provision under which Vogel was convicted is not unconstitutionally vague.1

      1
          See, e.g., United States v. Collier, 478 F.2d 268, 270-72 (5th Cir. 1973); see also United States v.
                                                                                               (continued...)

                                                      3
    Case: 11-40033         Document: 00511743059              Page: 4       Date Filed: 01/31/2012



                                              No. 11-40033

        Vogel’s challenges to the forfeiture and money judgment levied against
him and MPC are unpersuasive. Contrary to Vogel’s contentions, a rational jury
could have concluded there was a preponderance of evidence that all prescrip-
tions issued by MPC were invalid, so all of its $26.3 million in revenue was sub-
ject to forfeiture. And Vogel’s argument that this forfeiture is grossly dispropor-
tionate to his offense and violates the Excessive Fines Clause of the Eighth
Amendment is foreclosed by our precedent that the Clause does not apply to
drug-proceed forfeitures. United States v. Betancourt, 422 F.3d 240, 249-50 (5th
Cir. 2005).
        Finally, the sentence is procedurally sound and substantively reasonable.
The district court did not err by considering the vast quantity of drugs peddled
by Vogel in deciding to depart upwardly from the guidelines for Vogel’s money-
laundering offense. See U.S.S.G. § 2S1.1(a)(1). Nor was the upward departure
substantively unreasonable, given the size and extent of Vogel’s operation. The
court properly applied a four-point enhancement for Vogel’s leadership role in
an “otherwise extensive” conspiracy, even if his employees were unwitting co-
conspirators. Id. § 3B1.1 & cmt. 3; see United States v. Fullwood, 342 F.3d 409,
414-15 (5th Cir. 2003).
        AFFIRMED.




        1
         (...continued)
Fuchs, 467 F.3d 889, 896-97 (5th Cir. 2006); United States v. Henry, 727 F.2d 1373, 1378-79 (5th Cir. 1984).

                                                     4
