                                                 NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             _____________

                                 No. 10-4035
                                _____________

                        UNITED STATES OF AMERICA

                                       v.

                        LAURENCE T. MCKINNEY, MD,
                                   Appellant
                              _____________

                On Appeal from the United States District Court
                     for the Eastern District of Pennsylvania
                      District Court No. 2-09-cr-00234-001
               District Judge: The Honorable Michael M. Baylson
                                 _____________

               Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                             September 14, 2011

         Before: SLOVITER, SMITH, and NYGAARD, Circuit Judges

                          (Filed: September 22, 2011)
                           _____________________

                                  OPINION
                           _____________________

SMITH, Circuit Judge.

      Laurence T. McKinney, M.D., appeals from his conviction by a jury on

numerous counts of a forty-nine count indictment charging him with violations of
                                       1
the Controlled Substances Act. The jury found McKinney guilty of multiple

counts of distributing Percocet, a Schedule II controlled substance, and Xanax, a

Schedule IV controlled substance, outside the usual course of professional practice

and not for a legitimate medical purpose in violation of 21 U.S.C. § 841(a)(1) and

18 U.S.C. § 2. In addition, the jury found McKinney guilty of maintaining a place

for the illegal distribution of controlled substances in violation of 21 U.S.C. § 856.

The United States District Court for the Eastern District of Pennsylvania sentenced

McKinney to 87 months on the counts alleging the unlawful distribution of the

Schedule II opiate and the unlawful maintenance of a place to distribute controlled

substances. The Court imposed a sentence of 36 months on the remaining counts

of unlawful distribution of the Schedule IV controlled substance, to be served

concurrently. This timely appeal followed.1

      McKinney contends that his conviction should be set aside for several

reasons. First, he asserts that the District Court’s jury instructions were prejudicial

because they blurred the difference between the civil malpractice standard for

prescribing medication and the proof necessary for a criminal conviction for

illegally distributing controlled substances. Second, McKinney argues that the

District Court erred by allowing the prosecution to admit into evidence a chart that


1
    The District Court had jurisdiction under 18 U.S.C. § 3231.   We exercise final order
jurisdiction under 28 U.S.C. § 1291.
                                             2
summarized data reported to the Commonwealth of Pennsylvania regarding the

number of prescriptions written for Schedule II controlled substances. Finally,

McKinney argues that his conviction should be set aside because the prosecution

failed to disclose two police reports in contravention of the requirements of Brady

v. Maryland, 373 U.S. 83 (1963).

      We conduct plenary review in deciding whether the charge to the jury stated

the proper legal standard. United States v. Coyle, 63 F.3d 1239, 1245 (3d Cir.

1995). In reviewing a District Court’s jury instructions, we consider the charge as

a whole. United States v. Zehrbach, 47 F.3d 1252, 1264 (3d Cir. 1995) (en banc).

Because McKinney did not object to the jury instructions, reversal is warranted

only in the event there is plain error. United States v. Olano, 507 U.S. 725, 732-33

(1993).

      The authority cited by McKinney demonstrates that the charge could have

been more comprehensive. Nonetheless, we conclude that the charge to the jury,

as a whole, set forth the proper standard.

      McKinney contends that the District Court also erred by allowing the

prosecution to admit the chart summarizing the contents of the Schedule II/BD-6

Reports.   We review a District Court’s evidentiary rulings for an abuse of

discretion. United States v. Amirnazmi, 645 F.3d 564, 594 n.40 (3d Cir. 2011).

We find no abuse as the chart was admissible under Federal Rule of Evidence
                                             3
1006. See United States v. Velasquez, 304 F.3d 237, 240 (3d Cir. 2002). In light

of the District Court’s limiting instruction regarding the purpose of this chart, we

reject McKinney’s contention that the chart was unduly prejudicial under Federal

Rule of Evidence 403.

      McKinney’s final argument is that the prosecution committed a Brady

violation by failing to provide him with two reports by police who responded to

two incidents at McKinney’s office concerning prescriptions. Because a Brady

claim “presents questions of law as well as questions of fact,” we conduct plenary

review of the legal conclusions and clear error review of any factual findings.

United States v. Pelullo, 399 F.3d 197, 202 (3d Cir. 2005).       Because the two

police reports that were not disclosed were neither material nor exculpatory, we

conclude that the prosecution did not commit a Brady violation.

      For the above reasons, we will affirm the judgment of the District Court.




                                         4
