                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-15-2008

USA v. Maynard
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2889




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                                                              NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 07-2889
                                      ____________

                           UNITED STATES OF AMERICA

                                             v.

                                   PAUL MAYNARD,

                                               Appellant.
                                      ____________

                    On Appeal from the United States District Court
                         for the District of the Virgin Islands
                                  (No. 03-cr-00143)
                       District Judge: Hon. Raymond L. Finch

                      Submitted Under Third Circuit LAR 34.1(a)
                                    May 8, 2008

           Before: RENDELL, FUENTES, and CHAGARES, Circuit Judges.
                               ____________

                                   (Filed: May 15, 2008)

Counsel for Appellant
Richard F. Della Ferra (Argued)
Entin & Della Ferra, P.A.
110 Southeast Sixth Street, Suite 1970
Fort Lauderdale, FL 33301

Counsel for Appellee
Kim L. Chisholm (Argued)
Assistant United States Attorney
5500 Veterans Drive, Suite 260
St Thomas, VI 00802
                               OPINION OF THE COURT

CHAGARES, Circuit Judge.

       A jury convicted Paul Maynard of dispensing prescription painkillers outside the

usual course of professional medical practice. Maynard now appeals, contending that the

jury’s verdict was not supported by sufficient evidence. Because there is ample record

evidence that could support the jury’s conclusion, we will affirm.

                                             I.

       Maynard was a licensed physician who practiced medicine on St. Thomas. In

2001, a pharmacist on St. Thomas became suspicious after filling a large number of

prescriptions for Dilaudid, a narcotic painkiller, that Maynard had written for one of his

patients. The pharmacist alerted law enforcement agencies, who began an undercover

investigation into Maynard’s practices. On January 25, 2002, DEA Special Agent

Michael Poist and U.S. Coast Guard Special Agent Scott Miles went to see Maynard in an

attempt to obtain a prescription. After completing forms with fake names, the two

entered Maynard’s office together, and Poist told Maynard that he wanted a prescription

for Vicodin. Maynard asked Poist what was wrong, and Poist replied that “sometimes I

had a sore neck and my wrist hurt sometimes.” (Feb. 7, 2007 Trial Tr. at 56.) Maynard

took Poist’s blood pressure, listened to his chest, and took his weight – but did not

examine his neck or wrist at all. Maynard then asked Poist and Miles if they “were going

to do a deal with the pills. And we just told him no, that we were going to party with




                                              2
them.” (Id. at 57.) Maynard told the agents to be “careful,” and then issued the

prescription. The agents paid Maynard $100 cash.

       Four days later, the two agents went back to Maynard’s office. The receptionist

told them that it was “too soon” to get another prescription for Poist – so Agent Miles

filled out the paperwork instead, and the two agents went in, again together, to see

Maynard. Maynard said that it was too early for Poist to get another prescription, and so

Miles asked if he “could get some.” (Id. at 62.) Maynard asked Miles what ailed him,

and Miles replied that he had a toothache. Maynard at first told Miles to go see a dentist,

but then said that he would have to do a physical on Miles. The physical consisted – in

total – of taking Miles’s blood pressure. Maynard then issued Miles a prescription for

Vicodin. Again, the agents paid Maynard $100 cash.

       On August 19, 2002, Poist returned to Maynard, this time without Miles. Maynard

said to Poist, “You’re not really sick, are you?” (Id. at 70.) Poist replied that he was

there to get his prescription filled again. Maynard did not perform any examination on

Poist, but simply wrote out a prescription for Vicodin. Ten days later, Poist returned to

Maynard’s office. Again Maynard performed no examination, and again he gave Poist a

prescription for Vicodin. This time, however, Poist asked Maynard if he “could get some

Valium too, just so that I could sleep better,” and Maynard complied. (Id. at 73.)

       Detective Mark Joseph of the Virgin Islands Police Department also visited

Maynard in an undercover capacity. On August 6, 2002, Joseph told Maynard that he was

having problems with his girlfriend and that his back hurt. After a cursory examination,


                                              3
during which Maynard weighed Joseph, took his blood pressure, and listened to Joseph’s

chest and back with a stethoscope, Maynard wrote Joseph a prescription for Vicodin.

Maynard did not discuss Joseph’s personal history or medical history, did not take x-rays,

and did not refer Joseph to a specialist. Three weeks later, Joseph went back to Maynard.

Maynard asked him whether his back still hurt, and Joseph said it did not. Maynard wrote

him another prescription for Vicodin anyway. On each visit, Joseph paid Maynard cash

in his office.

       On September 11, 2003, Maynard was indicted on charges of dispensing and

distributing controlled substances outside the scope of professional medical practice, in

violation of 21 U.S.C. § 841(a)(1). Maynard went to trial in February 2007, and during

the trial, the jury heard surreptitious recordings made by the agents during their visits to

Maynard’s office.

       The jury also heard from two expert witnesses. Paul Doering, a Distinguished

Service Professor of Pharmacy Practice at the University of Florida, described an analysis

he performed of prescriptions Maynard wrote for seven of his patients. Doering

concluded that Maynard often issued a patient a subsequent prescription before the

previous prescription had run its course, and also frequently prescribed combinations of

medicines that could have adverse interactions with one another. He testified that,

looking at Maynard’s practices “from the perspective of a pharmacist, I’m concerned

about the early refills. I’m concerned about the combination and quantities of




                                              4
medications that were issued.” (Feb. 9, 2007 Trial Tr. at 61). He described Maynard’s

prescription practices as “not in the best interest of the patient.” (Id. at 62.)

       The Government also called Dr. Theodore Parran, a physician specializing in

addiction medicine, who is a professor at Case Western Reserve School of Medicine and

the founder and director of Case Western’s Addiction Fellowship Program. Dr. Parran

testified that Schedule II and III narcotic pain relievers such as Vicodin, Percoset, or

Oxycontin “tend to be used last” by doctors, because they can be addictive, and because

they are often unnecessary. (Id. at 114.) Accordingly, only when all other avenues of

pain relief have been exhausted, and the patient is in so much pain that they “still can’t

function, that typically in the usual course of medical practice is when narcotic pain

relievers are added in.” (Id.) Dr. Parran opined that “[t]he practice of medicine involves

eliciting a full set of data from a patient, both the history data, the old medical records

data, what other doctors have done before, and the physical exam data. . . . [T]hat’s really

what doctoring is all about. . . . [T]hat’s expected as a routine course of medical practice.”

(Id. at 115-17.)

       Dr. Parran testified that “prescribing controlled drugs on the first visit, especially

very potent Schedule II narcotics on the first visit is pretty uncommon in medical

practice.” (Id. at 122.) Dr. Parran also stated that to see two unrelated patients at the

same time, in the same office visit, “breaks every ethical code of confidentiality of the

doctor/patient relationship that exists. That’s . . . by definition unacceptable in the

practice of medicine.” (Id. at 124.) In Dr. Parran’s opinion, “[t]here was not a single


                                               5
physical exam done on an undercover agent which would . . .be construed as a physical

exam in the usual course of medical practice for a pain complaint. There was not a single

history elicited from a patient that could be construed as consistent with what would be

necessary. And there was not a single neurologic exam done.” (Id. at 138.)

       Dr. Parran reviewed prescriptions issued by Maynard, patient records from

Maynard’s office, and reports or undercover recordings from 19 visits made by

Government agents in this case. He made observations and wrote a report summarizing

his medical opinions, which, “to a reasonable degree of medical certainty[,] was that there

did not appear to be a single case that I reviewed . . . where the prescribing of controlled

drugs by Dr. Maynard appeared to have been done within the usual course of medical

practice and for a legitimate medical purpose.” 1 (Id. at 128-29.)

       The jury convicted Maynard of four counts of dispensing a controlled substance

outside the usual course of professional practice. The District Court sentenced Maynard



       1
         Specifically, Dr. Parran identified eight areas of deficiency in Maynard’s
practice: 1) a lack of old medical records; 2) “a total lack of the initiation of a work-up or
a diagnostic evaluation in any chart” (id. at 130); 3) “an exceedingly minimal initial
history and physical,” to the point that “the histories and physicals that were documented
in these charts would not permit a fourth-year medical student to pass the national board
exams” (id. at 131); 4) that Maynard never ordered any tests; 5) that Maynard never
ordered any consultations with other doctors; 6) that Maynard never ordered any
toxicology screens; 7) that Maynard often accepted visits from patients before their
prescriptions had expired; and 8) that “the conversations between Maynard and some of
the undercover agents were absolutely incompatible with the practice of medicine,” as
some of the “patients” came in and asked for medicines by name, and Maynard prescribed
them “without having a person take off their clothes and do a physical exam, without
checking reflexes, without the sort of usual things that we look for when doctoring.” Id.
at 136.

                                              6
to seven months imprisonment, below the bottom end of his advisory Sentencing

Guidelines range of 15 to 21 months imprisonment. This appeal followed.

                                             II.

       The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have

jurisdiction pursuant to 28 U.S.C. § 1291.

       Dr. Maynard must carry an extremely heavy burden to succeed on his appeal.

When considering the sufficiency of the evidence supporting a criminal conviction, we

must view the evidence in the light most favorable to the Government. See Glasser v.

United States, 315 U.S. 60, 80 (1942). Seen in that light, we affirm if “any rational trier

of fact could have found the essential elements of the crime beyond a reasonable doubt.”

Jackson v. Virginia, 443 U.S. 307, 319 (1979).

                                             III.

       The Controlled Substances Act (CSA), 21 U.S.C. § 801 et seq., and its

implementing regulations govern the manufacture, distribution, and dispensation of all

controlled substances in the United States. The CSA divides controlled substances into

five categories, according to their properties, and numerous prescription drugs are

classified as controlled substances under the CSA. Maynard was convicted under §

841(a)(1), which provides: “Except as authorized by this subchapter, it shall be unlawful

for any person knowingly or intentionally – (1) to manufacture, distribute, dispense, or

possess with intent to manufacture, distribute, or dispense, a controlled substance.” 21

U.S.C. § 841(a)(1).


                                              7
       Although the CSA makes exceptions to § 841(a)(1) for physicians and pharmacists

who are registered “practitioners,” see 21 U.S.C. §§ 821-23, regulations implementing the

CSA provide that a person who knowingly issues an “ineffective” prescription “shall be

subject to the penalties provided for violations of the provisions of law relating to

controlled substances.” 21 C.F.R. § 1306.04(a). To be “effective,” a prescription “must

be issued for a legitimate medical purpose by an individual practitioner acting in the usual

course of his professional practice.” Id. The Supreme Court has held that physicians are

subject to criminal liability “when their activities fall outside the usual course of

professional practice.” United States v. Moore, 423 U.S. 122, 124 (1975).

       Thus, “there can be no question that § 841 of the CSA covers physicians” when

they prescribe drugs for other than a “legitimate medical purpose in the usual course of

professional practice.” United States v. Hooker, 541 F.2d 300, 305 (1st Cir. 1976)

(quotation marks omitted); see also United States v. Nelson, 383 F.3d 1227, 1231-32

(10th Cir. 2004) (“A practitioner has unlawfully distributed a controlled substance if she

prescribes the substance either outside the usual course of medical practice or without a

legitimate medical purpose.”); United States v. Tran Trong Cuong, 18 F.3d 1132, 1137

(4th Cir. 1994) (“a licensed physician who prescribes controlled substances outside the

bounds of his professional medical practice is subject to prosecution”); United States v.

Norris, 780 F.2d 1207, 1209 (5th Cir. 1986); United States v. Voorhies, 663 F.2d 30, 33

(6th Cir. 1981); United States v. Tighe, 551 F.2d 18, 21 (3d Cir. 1977) (“by placing a

prescription for a controlled substance, issued outside of the usual course of medical


                                               8
practice, in the hands of an ultimate user a physician completes the offense of dispensing

under 21 U.S.C. § 841(a)(1).”).

       On appeal, Maynard argues that he did, in fact, execute each prescription in the

usual course of his medical practice. To support this assertion, he claims that his

practices met the four requirements set forth in an April 2001 DEA bulletin that dealt

primarily with Internet-based pharmaceutical distribution. In that bulletin, entitled

“Dispensing and Purchasing Controlled Substances over the Internet,” the DEA “intended

to provide guidance . . . concerning the application of current laws and regulations as they

relate to the use of the Internet for dispensing, purchasing, or importing controlled

substances.” 66 Fed. Reg. 21,181 (Apr. 27, 2001) (the April 2001 DEA Bulletin). The

DEA noted that many states and medical societies required four elements “as an

indication that a legitimate doctor/patient relationship has been established.” Id. These

are: (1) a medical complaint; (2) the taking of a medical history; (3) performance of a

physical exam; and (4) a logical connection between the complaint, the history, the exam,

and the drug eventually prescribed. See id. at 21,182-83. Maynard points out that he met

with each patient, that each patient complained of pain, that he conducted an exam of

each patient, and that he reviewed each patient’s medical history before prescribing

medication. Because he performed these steps, Maynard argues, the evidence presented

at his trial was insufficient to support a § 841 conviction.

       Maynard’s contentions fail for three reasons. First, this case has nothing to do

with Internet-based prescriptions. All of the prescriptions that Maynard was convicted


                                              9
for were made during face-to-face encounters between Maynard and the undercover

agents. Therefore, the April 2001 DEA Bulletin is of questionable relevance here.

Second, the April 2001 DEA Bulletin noted that “[u]nder Federal and state law, for a

doctor to be acting in the usual course of professional practice, there must be a bona fide

doctor/patient relationship,” and that the four elements described above are what “many

state authorities” consider to be “an indication that a legitimate doctor/patient relationship

has been established.” Id. at 21,182. The April 2001 DEA Bulletin does not indicate,

however, that the four elements necessarily constitute a bona fide doctor/patient

relationship for purposes of the CSA. More importantly, nowhere does the 2001 DEA

Bulletin suggest that the term “bona fide doctor/patient relationship” is synonymous with

the term “usual course of professional practice.” Indeed, it is easy to conceive that not

everything a doctor does once a “bona fide doctor/patient relationship” has been

established will necessarily fall within the “usual course of professional practice.”

       Third, we would not reverse even assuming, arguendo, that Maynard is correct,

and the four elements listed in the April 2001 DEA Bulletin are completely coterminous

with the “usual course of professional practice.” Even if that were the case, the jury could

find easily, from the evidence put forth by the Government at trial, that Dr. Maynard’s

practices and procedures failed to meet these elements. Witnesses testified that Maynard

did not always take a medical history from his “patients.” C.f. 66 Fed. Reg. at 21,182; see

Hooker, 541 F.2d at 305 (affirming conviction of physician where “the evidence at trial

indicates that appellant carried out little more than cursory physical examinations, if any,


                                              10
frequently neglected to inquire as to past medical history, and made little or no

exploration of the type of problem a patient allegedly had”). The jury also heard that

Maynard did not always perform a medical exam, that even when he did, the exam was so

perfunctory as to be meaningless, and that he neither referred his “patients” to specialists

nor required blood work or x-rays. C.f. 66 Fed. Reg. 21,182; see United States v.

Johnson, 71 F.3d 539, (6th Cir. 1995) (affirming conviction because Government’s

evidence included, inter alia, showing that “defendant prescribed narcotics upon request

and without medical examinations”); Cuong, 18 F.3d at 1139 (affirming conviction, as

based on sufficient evidence, in part because “[m]ost of the [defendant’s] patients were

given very superficial physical examinations [and not] . . . subjected to x-rays or blood

analysis or referred to specialists in an effort to identify and correct the cause of the

pain.”). Finally, Dr. Parran stated unequivocally that for several patients there was

absolutely no connection between the drugs that Maynard provided and the examinations

that he performed. Such testimony, by a recognized expert, has been held useful in

prosecutions of doctors for dispensing prescriptions improperly. See United States v.

Feingold, 454 F.3d 1001, 1007 (9th Cir. 2006) (“only after assessing the standards to

which medical professionals generally hold themselves is it possible to evaluate wether a

practitioner’s conduct has deviated so far from the ‘usual course of professional practice’

that his actions become criminal. . . . [Juries must] assess the prevailing standards of care

among medical professionals in cases involving the criminal prosecution of licensed

practitioners. . . . Knowing how doctors generally ought to act is essential for a jury to


                                              11
determine whether a practitioner has acted not as a doctor, or even as a bad doctor, but as

a ‘pusher’ whose conduct is without a legitimate medical justification.”).

       As the Hooker Court stated, “the jury could reasonably have inferred that the

minimal ‘professional’ procedures followed were designed only to give an appearance of

propriety to appellant’s unlawful distributions. Under these circumstances a medical

degree confers no immunity from criminal punishment.” 541 F.2d at 305 (quotation

marks omitted). The jury in this case heard overwhelming evidence that Maynard

conducted, at best, only minimal procedures designed to create the veneer of actual

examinations. The true practice of medicine, however, consists of far more thorough

methods. Accordingly, Maynard’s medical degree cannot protect him from application of

the CSA to him.

                                            IV.

       For the foregoing reasons, we will affirm the decision of the District Court in all

respects.




                                             12
