           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206
        ELECTRONIC CITATION: 2000 FED App. 0161P (6th Cir.)
                    File Name: 00a0161p.06


UNITED STATES COURT OF APPEALS
                  FOR THE SIXTH CIRCUIT
                    _________________


                                  ;
                                   
 UNITED STATES OF AMERICA,
                                   
           Plaintiff-Appellee,
                                   
                                   
                                       Nos. 98-6010/6011
            v.
                                   
                                    >
 GREGORY WELLS, M.D.               
                                   
                                   
 (98-6010); RONALD LEE

       Defendants-Appellants. 
 DILLION (98-6011),
                                   
                                  1
       Appeal from the United States District Court
     for the Eastern District of Kentucky at Pikeville.
     No. 97-00016—Joseph M. Hood, District Judge.
                  Argued: December 6, 1999
               Decided and Filed: May 10, 2000
  Before: COLE and GILMAN, Circuit Judges; CARR,*
                   District Judge.




    *
     The Honorable James G. Carr, United States District Judge for the
Northern District of Ohio, sitting by designation.

                                  1
2    United States v. Wells, et al.       Nos. 98-6010/6011      Nos. 98-6010/6011          United States v. Wells, et al.    23

                    _________________                            quotation omitted). Here, the district court was clearly aware
                                                                 of its discretion to depart downward: it noted that it had
                        COUNSEL                                  received numerous letters on Dr. Wells’s behalf and sua
                                                                 sponte considered, and rejected, a downward departure.
ARGUED: Eldred E. Adams, Jr., ADAMS & ADAMS,                     Because the district court was aware of its discretion to depart
Louisa, Kentucky, John K. West, McCOY, BAKER &                   downward, its refusal to do so is not reviewable by this court.
WEST, Lexington, Kentucky, for Appellants. Patrick H.            See id.
Molloy, ASSISTANT UNITED STATES ATTORNEY,
Lexington, Kentucky, for Appellee. ON BRIEF: Eldred E.                               VI. CONCLUSION
Adams, Jr., ADAMS & ADAMS, Louisa, Kentucky, John K.
West, McCOY, BAKER & WEST, Lexington, Kentucky, for                After carefully reviewing the record, arguments, and briefs
Appellants. Patrick H. Molloy, Charles P. Wisdom, Jr.,           of the parties in this case, we AFFIRM the conviction of Dr.
ASSISTANT UNITED STATES ATTORNEYS, Lexington,                    Wells, but VACATE Dillion’s sentence and REMAND his
Kentucky, for Appellee.                                          case to the district court for further proceedings consistent
                                                                 with this opinion.
                    _________________
                        OPINION
                    _________________
  R. GUY COLE, JR., Circuit Judge. Defendants-Appellants
Gregory Wells, M.D., and Ronald Lee Dillion appeal from
their jury convictions on ten counts of narcotics crimes. The
convictions all arise from Dr. Wells’s prescriptions for
thousands of dosages of controlled substances for the use and
benefit of Dillion, a friend and patient. On appeal, Dr. Wells
and Dillion raise multiple issues. None of Dr. Wells’s claims
have merit, and we AFFIRM his conviction. However,
because the district court erred in the manner in which it
assessed Dillion’s claim that the government breached his
plea agreement, we VACATE his sentence and REMAND
Dillion’s case to the district court for further proceedings
consistent with this opinion.
                    I. BACKGROUND
  In 1983, the Kentucky Board of Medical Licensure licensed
Dr. Wells to practice medicine in Kentucky. From that time
until his trial in this case, Dr. Wells practiced general
medicine in Inez, Kentucky. The Drug Enforcement Agency
(DEA) issued Dr. Wells a registration number in August 1983
22    United States v. Wells, et al.        Nos. 98-6010/6011       Nos. 98-6010/6011              United States v. Wells, et al.        3

§ 2D1.1 applies. Dr. Wells also argues that this was not a          which authorized Dr. Wells to write prescriptions for
“street” transaction in which money was involved. These             controlled substances in accordance with 21 U.S.C. § 801 et
arguments lack merit. The indictment against Dr. Wells was          seq. The Kentucky Board of Medical Licensure suspended
not vindictive, and the jury convicted him of violating 21          Dr. Wells’s capacity  to write prescriptions for narcotics in
U.S.C. § 841(a)(1). Because the most applicable guideline to        October 1995.1
this offense is § 2D1.1, the district court did not err in
applying it.                                                           Ronald Lee Dillion, a former Kentucky State Police officer,
                                                                    became a patient of Dr. Wells in 1994. Dillion saw Dr. Wells
                B. Weight of Carrier Medium                         for a neck and back ailment and for a blood disorder. Dillion
                                                                    took a prescription pain medication, Lorcet, to treat the pain
  Dr. Wells argues that the district court erred in its             associated with his neck and back problems. In addition to
calculation of the amount of drugs attributable to him because      their professional relationship, Dr. Wells and Dillion were
the court considered the weight of the carrier medium as well       friends who talked with each other frequently and took at least
as that of the controlled substance. As noted by the district       one trip together.
court, § 2D1.1 provides that “[u]nless otherwise specified, the
weight of a controlled substance set forth in the table refers to      Following an investigation that began as a Medicaid fraud
the entire weight of any mixture or substance containing a          investigation centered on Dr. Wells, the government filed a
detectable amount of the controlled substance.” See U.S.S.G.        seven-count indictment against Dr. Wells and Dillion on June
§ 2D1.1(c), note A. Dr. Wells points to the reference to            18, 1997. The first count charged Dr. Wells and Dillion with
“total weight of the controlled substance” in application note      conspiring to acquire and obtain controlled substances by
11 to § 2D1.1 to argue that only the weight of the controlled       misrepresentation, fraud, deception, or subterfuge, in
substance should have been considered rather than the weight        violation of 21 U.S.C. §§ 846 and 843(a)(3). Counts two
of the entire mixture.                                              through six alleged that Dr. Wells had written prescriptions
                                                                    which Dillion had used to obtain Schedule II and Schedule III
  This court considered and rejected Dr. Wells’s argument in        controlled substances, see 21 U.S.C. § 812, and charged the
United States v. Landers, 39 F.3d 643 (6th Cir. 1994). This         two men with aiding and abetting one another in knowingly
case presents essentially the same situation. Thus, Dr.             and intentionally acquiring and obtaining the drugs by
Wells’s argument does not provide a basis for resentencing.         misrepresentation, fraud, deception and subterfuge, in
                                                                    violation of 21 U.S.C. § 843(a)(3) and 18 U.S.C. § 2. The
                  C. Downward Departure                             final count charged Dr. Wells and Dillion with aiding and
                                                                    abetting one another in obtaining Lorcet, a Schedule III
   Dr. Wells argues that the district court erred by failing to     narcotic, and alleged that Dr. Wells had written prescriptions
depart downward in his sentence based upon his exemplary            for Dillion that were outside the scope of appropriate medical
community service. The government submits that this issue           practice, in violation of 21 U.S.C. § 843(a)(3) and 18 U.S.C.
is not properly before the court. The government is correct.        § 2. Both defendants pleaded not guilty to all seven counts.
A sentence conforming to the guideline range cannot be
appealed based on the district court’s refusal to depart
downward in sentence unless the district court “incorrectly
believed that [it] lacked any authority to consider defendant’s
mitigating circumstances as well as the discretion to deviate           1
                                                                         The record before us does not detail the circumstances surrounding
from the guidelines.” Landers, 39 F.3d at 649 (citation and         the Board’s suspension of Dr. Wells’s prescription privilege.
4       United States v. Wells, et al.          Nos. 98-6010/6011          Nos. 98-6010/6011               United States v. Wells, et al.        21

  On November 20, 1997, the government filed a superseding                                   V. SENTENCING ISSUES
indictment against Dr. Wells and Dillion. The superseding
indictment included the first six counts from the original                                       A. Base Offense Level
indictment, but added several new counts. Count seven
charged Dr. Wells and Dillion with aiding and abetting one                    Dr. Wells argues that the district court erred by applying
another in illegally dispensing and distributing Tylox, a                  U.S.S.G. § 2D1.1   rather than § 2D2.2 in calculating his base
Schedule II narcotic, in violation of 21 U.S.C. § 841(a)(1) and            offense level.10 Dr. Wells argues that his offense was more
18 U.S.C. § 2. Count seven alleged that Dr. Wells had                      akin to acquiring a controlled substance by fraud, the offense
written, outside the scope of appropriate medical practice and             to which § 2D2.2 corresponds, than to distributing controlled
not for a legitimate medical purpose, a prescription for Tylox             substances, which is covered by § 2D1.1. The district court
in the name of a third person, but actually intended the drug              rejected this argument because Dr. Wells was convicted of
for Dillion. Counts eight through twelve of the superseding                distribution in addition to obtaining controlled substances by
indictment charged both defendants with five other instances               fraud.
of aiding and abetting each other in illegally distributing and
dispensing Schedule II narcotics by prescribing them for a                   We review the application of a guideline to a particular set
third party but intending them for Dillion. Both defendants                of facts de novo. See United States v. Childers, 86 F.3d 562,
pleaded not     guilty to the charges in the superseding                   563 (6th Cir. 1996). The offense guideline most applicable to
indictment.2                                                               the offense of conviction should be used in determining a
                                                                           defendant’s base offense level. See U.S.S.G. § 1B1.2(a).
  On August 5, 1996, Dillion entered into a plea agreement                 Section 2D1.1 is the appropriate sentencing guideline for the
with the government. In March 1997, the government                         unlawful manufacturing, importing, exporting, or trafficking
informed Dillion that it considered the agreement to be null               of controlled substances, see U.S.S.G. § 2D1.1, and serves as
and void because Dillion had failed to cooperate under the                 the reference point for violations of 21 U.S.C. § 841(a)(1).
agreement. Dillion moved to enforce the plea agreement on                  See U.S.S.G. App. A. In contrast, § 2D2.2 is the appropriate
August 15, 1997, but the court denied the motion on October                sentencing guideline for acquiring a controlled substance by
30, 1997.                                                                  forgery, fraud, deception, or subterfuge in violation of 21
                                                                           U.S.C. § 843(a)(3). See U.S.S.G. § 2D2.2.
  Dr. Wells and Dillion were tried by a jury. At the close of
evidence, the defendants moved for acquittal. The court                      Dr. Wells contends that the district court erred because he
denied the motion on ten of the counts, but granted it as to               was originally indicted under 21 U.S.C. § 843(a)(1) and it was
counts three and six, because the government failed to prove               the “vindictive” superseding indictment that included the
under those counts that the third parties for whom Dr. Wells               more serious 21 U.S.C. § 841(a)(1) violations to which
had prescribed drugs had not actually received the drugs.
After the jury found both defendants guilty of the remaining
ten counts, the court sentenced Dr. Wells to a total of 78                     10
months’ imprisonment, three years of supervised release, and                      Dillion echoes Dr. Wells’s argument that the district court applied
                                                                           the wrong base offense level in computing his sentence. Because
                                                                           Dillion’s sentence will change if the district court finds that his plea
    2                                                                      agreement is enforceable, we do not address his argument here.
      On January 22, 1998, the government filed a second superseding       Nonetheless, we see no reason why our conclusion about Dillion’s
indictment against Dr. Wells and Dillion which did not differ in any way   argument would be any different from the conclusion we reach about Dr.
material to this appeal.                                                   Wells’s argument regarding the base offense level.
20    United States v. Wells, et al.        Nos. 98-6010/6011        Nos. 98-6010/6011                United States v. Wells, et al.            5

whole, were confusing, misleading and prejudicial. See               a $1,000 assessment, and Dillion to a total of 63 months’
United States v. Sheffey, 57 F.3d 1419, 1430 (6th Cir. 1995)         imprisonment, three years of supervised release, and a $1,000
(quoting United States v. Clark, 988 F.2d 1459, 1468 (6th Cir.       assessment. Both Dr. Wells and Dillion filed timely notices
1993)). Our inquiry into jury instructions is limited to             of appeal.
whether, taken as a whole, the instructions adequately inform
the jury of the relevant considerations and provide the jury                     II. DILLION’S PLEA AGREEMENT
with a sound basis in law with which to reach a conclusion.
See id at 1430 (citation omitted). A particular jury instruction       Dillion’s first argument on appeal is that the district court
“may not be judged in artificial isolation, but must be viewed       abused its discretion by failing to enforce his plea agreement
in the context of the overall charge.” Cupp v. Naughten, 414         with the government. Dillion claims that the government
US. 141, 146-47 (1973). Upon our review of all the jury              failed to prove by a preponderance of the evidence that
instructions in this case, we are convinced that the jury was        Dillion had materially and substantially breached the
aware that to return a guilty verdict, it had to find that Dillion   agreement. The government responds that, due to his drug
knowingly acquired controlled substances by doing something          addiction, Dillion breached the agreement by being unable to
deceitful or untruthful. The district court did not err.             comply with its terms and by failing to provide useful
                                                                     information. The government also argues that Dillion
   Dr. Wells also argues that the court’s jury instructions          breached the plea agreement   by failing to obtain treatment for
regarding the charges pursuant to 21 U.S.C. § 841(a)(1) were         his drug addiction.3
erroneous because they permitted the jury to find Dr. Wells
guilty of “simple medical malpractice” without finding him
guilty of the proscribed offense of distributing controlled              3
                                                                            The government also argues that, although both parties signed the
substances. We disagree. The district court instructed the           agreement, the agreement is not binding because the court never accepted
jury that is must find the following elements beyond a               it. It is, of course, true that a plea agreement is not binding on the court
reasonable doubt in order to return a guilty verdict: “(A) First,    until it accepts the agreement. See Fed. R. Crim. P. 11. Whether a signed
that [Dr. Wells] knowingly or intentionally distributed the          plea agreement may be binding on the government prior to acceptance by
controlled substance named in that count; and (B) Second,            the court is a different matter. Although some courts have found that a
                                                                     plea agreement is not enforceable against the government until it is
that he distributed such controlled substance outside the            accepted by the trial court, see, e.g., United States v. Ocanas, 628 F.2d
course of professional practice and not for a legitimate             353, 358 (5th Cir. 1980), others have enforced agreements even where the
medical purpose.” As the government points out, the judge            trial court has not yet approved them, see, e.g., United States v. Mozer,
defined “distribute” for the jury as meaning “to unlawfully          828 F. Supp. 208, 214-16 (S.D.N.Y. 1993); see also United States v.
transfer or to cause the unlawful transfer of a controlled           Fitch, 964 F.2d 571, 575 (6th Cir. 1992) (holding that informal immunity
substance from one person to another.” Thus, the jury was            agreement is binding on government where defendant did not materially
                                                                     breach agreement). If Dillion substantially relied on the plea agreement,
aware that in order to convict Dr. Wells, it had to find that he     or was prejudiced by providing information which the government used
unlawfully transferred (or caused the transfer of) controlled        in its ongoing investigation or at trial, we think that the contract would be
substances to another person and not that he simply                  -- in the absence of breach by Dillion -- binding on the government. See
prescribed medications in a negligent manner.               The      United States v. Brown, 801 F.2d 352, 355 (8th Cir. 1986) (stating that if
instructions were sufficient.                                        district court determines on remand that defendant did not breach
                                                                     cooperation agreement entered into with government, “fundamental
                                                                     fairness requires the government to uphold its part of the agreement and
                                                                     the district court may enforce the agreement.”); see also United States v.
                                                                     Aguilera, 654 F.2d 352, 354 (5th Cir. 1981); Ocanas, 628 F.2d at 358.
                                                                     We leave it to the lower court to resolve the factual issues of reliance and
6     United States v. Wells, et al.            Nos. 98-6010/6011          Nos. 98-6010/6011           United States v. Wells, et al.    19

            A. Background of the Plea Agreement                            court erred in excluding Dr. Walker’s testimony, we are
                                                                           satisfied that Dr. Well’s right to a fair trial was not
   Under his written plea agreement, Dillion agreed to plead               undermined by exclusion of that testimony.
guilty to conspiracy to obtain possession of a controlled
substance by misrepresentation, fraud, forgery, deception, or                                  IV. OTHER ISSUES
subterfuge, in violation of 21 U.S.C. §§ 846 and 843(a)(3),
and “to fully cooperate” with the government in its                                      A. Prosecutorial Vindictiveness
investigation and prosecution of related criminal activity. In
return, the government agreed to limit its prosecution of                     Dr. Wells argues that the superseding indictment filed by
Dillion’s involvement in the narcotics crime to the conspiracy             the government represents a case of prosecutorial
charge. The government also agreed, in the event that Dillion              vindictiveness because its sole purpose was to impose drastic
provided “substantial assistance” in its investigation and                 penalties on him and because it was not the result of new
prosecution, to consider filing a U.S.S.G § 5K1.1 motion                   information acquired subsequent to the original indictment.
requesting the district court to impose a sentence below the               The claim fails. To establish vindictive prosecution, a
established guideline range. The agreement was absolutely                  defendant must show that the prosecutor has some personal
clear that it “constitute[d] the entire Plea Agreement between             “stake” in deterring the defendant’s exercise of his
the United States and the defendant,” and that it “supersede[d]            constitutional rights, and that the prosecutor’s conduct was
all prior understandings, promises and /or representations, if             unreasonable. See United States v. Branham, 97 F.3d 835,
any, whether written or oral, which may have existed between               849-50 (6th Cir. 1996) (citations omitted). Because there is
the parties hereto.”                                                       nothing in the record to suggest that the government’s
                                                                           attorney had a stake in the prosecution of Dr. Wells, or that he
  On the day that the parties signed the agreement, Dillion                acted unreasonably, the claim fails.
met with government investigators and the AUSA for most of
the day. Dillion provided the government with information at                                    B. Jury Instructions
that time, although the parties disagree over how helpful the
information proved to be. Dillion met with government                         Dr. Wells argues that the jury instructions regarding his
investigators on one more occasion, on August 9, 1996. After               alleged violations of 21 U.S.C. § 843(a)(3) were improper
the second meeting, the government made several attempts to                because they failed to explain the legal meanings of words
schedule further meetings through Dillion’s attorney, but none             used in the statute. As part of its instructions to the jury, the
of the meetings came to fruition. In March 1997, the                       court told the jury that in order to convict Dr. Wells it must
government informed Dillion’s attorney by letter that the                  find the following: “First, that the crime of knowingly and
government considered the plea agreement null and void                     intentionally acquiring or obtaining possession of controlled
because Dillion had failed to cooperate with the government.               substances by misrepresentation, fraud, forgery, deception or
In August 1997, Dillion filed a motion to enforce the plea                 subterfuge, as charged in counts 2, 4, and 5, was committed
agreement. After a hearing at which several witnesses                      by Ronald Lee Dillion.”              Dr. Wells argues that
testified, the district court issued a written order denying               “misrepresentation, fraud, forgery, deception or subterfuge”
                                                                           have special legal meanings and proposed instructions of his
                                                                           own.

prejudice in its evaluation of whether Dillion fulfilled his obligations
                                                                             This court may reverse a judgment on the basis of improper
under the plea agreement.                                                  jury instructions only if the instructions, when viewed as a
18    United States v. Wells, et al.        Nos. 98-6010/6011        Nos. 98-6010/6011           United States v. Wells, et al.      7

patient. The evidence was sufficient for a rational jury to          Dillion’s motion and finding that Dillion “failed to fulfill his
convict Dr. Wells on counts two, four, and five.                     obligations under the plea agreement.”
     D. Exclusion of Testimony by Dr. Wells’s Expert                      B. Standard of Review and Governing Principles
   Dr. Wells also argues that the district court erred by              “Plea agreements are contractual in nature. In interpreting
excluding testimony from his expert, Dr. Walker, related to          and enforcing them, we are to use traditional principles of
whether Adkins had asked Dillion to help her obtain                  contract law.” United States v. Robison, 924 F.2d 612, 613
prescription medication from Dr. Wells for her back pain. A          (6th Cir. 1991). Questions regarding the content of the plea
prescription for acetaminophen with codeine in the name of           agreement are questions of fact; this court reviews the district
Adkins was the subject of count five of the indictment.              court’s determination of those questions for clear error. Id.
Adkins testified that although she had asked Dillion to obtain       However, whether the government’s conduct violated the
Albuterol, a medication she took for a chronic problem with          agreement is a question of law that we review de novo. See
her breathing, from Dr. Wells on two or three occasions when         United States v. Hawley, 93 F.3d 682, 690 (10th Cir. 1996);
her own doctor was out of town, Dillion had never obtained           United States v. Valencia, 985 F.2d 758, 760 (5th Cir. 1993).
acetaminophen with codeine for her, and she had never met            The trial court should hold the government to “a greater
nor spoken with Dr. Wells. When, later in the trial, the             degree of responsibility than the defendant . . . for
defense asked its expert, Dr. Walker, whether Tylenol No. 4          imprecisions or ambiguities in . . . plea agreements.” United
(i.e., acetaminophen with codeine) would be an appropriate           States v. Johnson, 979 F.2d 396, 399 (6th Cir. 1992) (citation
medication for someone with back pain, the government                and quotation omitted). Although the burden is on the
objected -- out of hearing of the jury -- on the basis that          government to show by a preponderance of the evidence that
Adkins had never testified to having any back pain. At the           the defendant breached the agreement, United States v.
government’s request, the district judge informed the jury that      Benjamin, 138 F.3d 1069, 1074 (6th Cir. 1998), a defendant
it must disregard Dr. Walker’s testimony regarding the pain          who breaches a plea agreement forfeits any right to its
medication because Adkins testified that she had never asked         enforcement. United States v. Skidmore, 998 F.2d 372, 375
Dillion to obtain medication for her back problems.                  (6th Cir. 1993) (citation omitted).
   We will uphold the trial judge’s ruling on the admissibility                               C. Discussion
of evidence unless it is an abuse of discretion. Bonds, 12 F.3d
at 554. A trial court’s abuse of discretion is harmless and             The district court based its conclusion that Dillion failed to
does not require a new trial unless it affects a substantial         fulfill his obligations under the plea agreement on two facts:
right. See id. The government’s basis for its objection was          1) that Dillion “failed to get ‘clean,’” and 2) that Dillion
wrong: Adkins did testify to having back pain and to taking          failed “to provide the assistance needed.” The court’s
a prescription medication for it. Nonetheless, the information       reasoning raises two problems. First, the court clearly erred
that the district judge gave the jury -- that Adkins had testified   in relying upon Dillion’s alleged promise to obtain drug
that she never asked Dillion for back pain medication -- was         treatment in concluding that he breached the plea agreement.
correct. The trial court’s decision to exclude the expert            The government’s protestations notwithstanding, the plea
testimony regarding the medication Adkins took for her pain          agreement is completely devoid of any agreement that Dillion
was presumably made on the basis that it was not relevant.           obtain drug treatment in order to fulfill his part of the bargain.
See Fed. R. Evid. 401. Regardless of whether the district            The agreement could not be any more clear that it is the
                                                                     “complete and only Plea Agreement” between the government
8     United States v. Wells, et al.        Nos. 98-6010/6011       Nos. 98-6010/6011          United States v. Wells, et al.    17

and Dillion, and plainly states that “[t]he following additional    twelve was outside the scope of medical practice. We are
promises have been made by the defendant: NONE[.]” Thus,            confident that a rational trier of fact could have found both
the district court’s reliance on any oral statements Dillion may    Dillion and Dr. Wells guilty of the charges in counts seven
have made that are not reflected in the written agreement is        through twelve.
clear error.
                                                                       Dr. Wells also argues that there was insufficient evidence
   The second problem with the district court’s ruling is that      to convict him of counts one, two, four, and five. He argues
it applied the wrong standard in determining whether Dillion        that he was improperly charged with conspiring to violate and
fulfilled his obligations under the agreement. The agreement        with violating 21 U.S.C. § 843(a)(3) because the statute does
required Dillion to “fully cooperate” with the government in        not apply to physicians; thus, he cannot be guilty of violating
its further investigation and prosecution of criminal activity      the statute. This argument fails. As the government points
related to Dillion’s and Dr. Wells’s conspiracy. Yet, in its        out, the plain language of § 843(a)(3) applies to “any person”
order, the district court characterized Dillion’s agreement as      who “knowingly or intentionally . . . acquire[s] or obtain[s]
a promise to provide “substantial assistance” in further            possession of a controlled substance by misrepresentation,
investigations and prosecutions, and found that Dillion “did        fraud, forgery, deception, or subterfuge,” 21 U.S.C.
not, and could not, provide ‘substantial assistance’ to the         § 843(a)(3), and courts have not hesitated to apply § 843(a)(3)
United States” because he gave the government contradictory         to physicians. See, e.g., United States v. Antoon, 933 F.2d
and unreliable information and failed to be a credible witness.     200 (3d Cir. 1991); United States v. Blanton, 730 F.2d 1425
This is problematic because it appears that the court evaluated     (11th Cir. 1984). The case Dr. Wells cites to stand for the
Dillion’s compliance with the plea agreement by looking to          proposition that the statute applies only to pharmacists,
the government’s conditional promise to file a § 5K1.1              United States v. Limberopoulos, 26 F.3d 245 (1st Cir. 1994),
motion (i.e., if Dillion provided it with substantial assistance)   cites United States v. Devous, 764 F.2d 1349 (10th Cir. 1985),
instead of looking to Dillion’s contractual obligation to “fully    in which the court affirmed the conviction of a physician
cooperate” with the government. Because Dillion expressly           pursuant to § 843(a)(3). Dr. Wells’s claim with respect to
agreed to “fully cooperate” with the government and not to          count one has no merit.
“substantially assist[]” it, the proper analysis of his alleged
breach should have focused on whether he fully cooperated              Further, there was sufficient evidence for a rational jury to
with the government.                                                find Dr. Wells guilty beyond a reasonable doubt of the crimes
                                                                    alleged in counts two, four, and five. See Jackson, 443 U.S.
   The difference between substantial assistance and full           at 319. The government put on evidence showing that Dillion
cooperation is not merely semantic. A defendant might fully         was in possession of several of Dr. Wells’s prescription pads
cooperate with the government yet fail to provide information       and individual prescriptions from Dr. Wells, some of which
that substantially assists it. If that happened in this case,       were signed. The government showed that Margaret Friend,
Dillion was not in breach of the plea agreement. Because this       the mother of one of Dillion’s ex-wives and in whose name
is a question of fact that the district court must resolve, we      the prescription that is the subject of count two was written,
REMAND Dillion’s case to the district court. On remand, the         never received a prescription from Dr. Wells and did not even
court should determine whether Dillion fully cooperated with        know the man. The government made a similar showing
the government according to the terms of the plea agreement,        regarding count four, and put on evidence that Joyce Adkins,
and not whether Dillion substantially assisted the government.      Dillion’s sister and in whose name the prescription that is the
In determining whether Dillion fully cooperated with the            subject of count five was written, never saw Dr. Wells as a
16     United States v. Wells, et al.              Nos. 98-6010/6011           Nos. 98-6010/6011          United States v. Wells, et al.     9

considering whether there is sufficient evidence to sustain a                  government, the court should look to the requirements of the
conviction, we must determine “whether, after viewing the                      agreement itself and not to additional promises that either
evidence in the light most favorable to the prosecution, any                   Dillion or the government made during plea negotiations. See
rational trier of fact could have found the essential elements                 United States v. Hunt, 205 F.3d 931, 935 (6th Cir. 2000)
of the crime beyond a reasonable doubt.” Jackson v. Virginia,                  (stating that integration clause normally prevents criminal
443 U.S. 307, 319 (1979) (emphasis in original). This court                    defendant who has entered into plea agreement from asserting
must uphold a jury verdict if there is substantial evidence,                   that government made promises not contained in plea
viewed in the light most favorable to the government, to                       agreement itself).
support it. See Burks v. United States, 437 U.S. 1, 17 (1978).
In considering the evidence, we allow the government the                                        III. EVIDENCE ISSUES
benefit of all reasonable inferences and refrain from
independently judging the weight of the evidence. See United                     A. Admission of Expert Testimony Pursuant to Rule 16
States v. Welch, 97 F.3d 142, 148 (6th Cir. 1996).
                                                                                 Both Dr. Wells and Dillion argue that the district court
  Counts seven through twelve accused the defendants of                        erred by admitting expert testimony that it should have
aiding and abetting each other in distributing and dispensing                  excluded. First, appellants argue that the government failed
controlled substances for the benefit of Dillion by prescribing                to provide sufficient discovery pursuant to Fed. R. Crim. P.
the drugs for a third person, and doing so outside the scope of                16(a)(1)(E) in regard to the testimony of Dr. Douglas
professional practice. The third person in whose name these                    Kennedy, a government witness. Second, they argue that the
drugs were prescribed was Arlie Boyd. The government put                       government violated the requirements of Rule 16(a)(1)(E) by
forward evidence that Dr. Wells ordered prescriptions for                      permitting Drs. Charles Hieronymus and Syed Badrudduja to
Boyd on the dates alleged in counts seven through twelve,                      testify as experts even though the government proffered them
that Boyd was not taking prescription medication at the time                   as lay witnesses.
the prescriptions were dispensed, and that he never went to
see Dr. Wells in person. In addition, the government showed                      Rule 16(a)(1)(E) requires the government to provide a
that Dr. Wells ordered thousands of dosages of prescription                    defendant, at the defendant’s request, with a written summary
medication for Boyd, ostensibly for symptoms associated with                   of expert testimony that it intends to use in its case-in-chief.
cancer, at a time when Boyd was cancer-free. Through its                       Fed. R. Crim. P. 16(a)(1)(E). The summary must “describe
expert, Dr. Kennedy, the government showed that Dr. Wells’s                    the witnesses’ opinions, the bases and the reasons for those
record on Boyd was minimal, and that each of the                               opinions, and the witnesses’ qualifications.” Id. The purpose
prescriptions that are the subjects of counts seven through                    of this rule is “to minimize surprise that often results from
                                                                               unexpected expert testimony, reduce the need for
                                                                               continuances, and to provide the opponent with a fair
show: 1) the variance itself; and 2) that the variance affects a substantial   opportunity to test the merit of the expert’s testimony through
right of the defendant. Id. Dr. Wells is unable to meet even the first         focused cross-examination.” Fed. R. Crim. P. 16 advisory
prong of this test. In counts seven through twelve, the government             committee’s note to 1993 amendment. We review the trial
charged Dr. Wells with knowingly and intentionally distributing                court’s determination that expert testimony has met the
controlled substances in violation of 21 U.S.C. § 841(a)(1) by writing         requirements of Rule 16 for abuse of discretion. See United
prescriptions for a third party but intending the drugs for Dillion. The       States v. Bonds, 12 F.3d 540, 554 (6th Cir. 1993); United
government put on proof that Dr. Wells knowingly and intentionally
prescribed drugs for Arlie Boyd so that Dillion could obtain them for          States v. Seiber, No. 96-6463, 1998 WL 165153, at **4 (6th
himself. There was no variance between the charges and the proof.              Cir. Apr. 3, 1998).
10   United States v. Wells, et al.      Nos. 98-6010/6011       Nos. 98-6010/6011               United States v. Wells, et al.         15

   Dillion and Dr. Wells do not dispute that the government      benefit that were not specifically charged in the indictment.
provided them with Dr. Kennedy’s qualifications prior to         Prior to trial, the district court denied Dr. Wells’s motion for
trial, but claim that Dr. Kennedy’s testimony went well          a hearing to determine the admissibility of the prescriptions
beyond the scope of the summary the government submitted         pursuant to Merriweather. The court ruled that the
to them. They protest in particular Dr. Kennedy’s testimony      prescriptions were admissible as evidence of the conspiracy
regarding the requirements of establishing a doctor-patient      alleged in count one and as Rule 404(b) evidence as to the
relationship before prescribing controlled substances for a      § 843(a)(3) charges alleged in counts two through seven of
patient, and his testimony regarding Kentucky law                the original indictment. On appeal, Dr. Wells argues that the
requirements for prescribing controlled substances. We find      district court failed to make a specific finding regarding the
these complaints to be unpersuasive.                             admissibility 8of the 171 prescriptions pursuant to
                                                                 Merriweather.         Dr. Wells claims that some of the
   Dr. Wells and Dillion should not have been surprised by       prescriptions were legitimate and that the government simply
Dr. Kennedy’s testimony. Prior to trial, the government made     lumped together numerous prescriptions in order to
available to the defense a copy of a report Dr. Kennedy had      improperly overwhelm the jury.
prepared in April 1996 regarding Dr. Wells for the Kentucky
Board of Medical Licensure. The report detailed Dr.                 Upon review, we find that the district court did not abuse
Kennedy’s analysis of Dr. Wells’s records of prescriptions of    its discretion by admitting the prescriptions as acts in
controlled substances and summarized Dr. Kennedy’s               furtherance of the conspiracy alleged in count one. See
conclusion that Dr. Wells had written numerous prescriptions     Merriweather, 78 F.3d at 1078. Nor did the court err by
without adequately documenting the medical necessity of the      admitting the prescriptions as to counts two through seven, as
prescriptions. In addition, the government provided defense      the evidence satisfies the three-step Merriweather analysis.
counsel with documents reviewed by Dr. Kennedy that              See id. at 1076-77. Dr. Wells’s claim fails.
showed the prescriptions Dr. Wells had written for Dillion’s
use, and a brief letter written by Dr. Kennedy in January 1998                    C. Sufficiency of the Evidence
which stated that Kennedy had reviewed both Dr. Wells’s file
on Dillion and the prescriptions written or ordered via            Both Dillion and Dr. Wells claim that there was insufficient
telephone in Dillion’s name. The letter clearly stated the       evidence to convict them of counts seven through twelve.9 In
ultimate point of Dr. Kennedy’s testimony: “it is my opinion
that the prescriptions as to each of the counts in the
indictment are outside the scope of the professional practice        8
                                                                       Dr. Wells also argues that the district court must make Merriweather
and not for a legitimate medical purpose.” Finally, the          findings for the prescriptions admitted as to the conspiracy count. He is
content and basis of Dr. Kennedy’s testimony was the subject     incorrect. As discussed, supra, Merriweather applies to evidence
of a substantial amount of pretrial discourse, including the     admitted pursuant to Rule 404(b) and does not require special findings for
government’s relatively detailed response to Dr. Wells’s and     admission of non-Rule 404(b) evidence of a conspiracy.
Dillion’s motion in limine to exclude Dr. Kennedy’s                  9
testimony, and a hearing on the motion in which the                     Wells argues that there was a “fatal variance” between counts seven
government stated that Dr. Kennedy would testify that Dr.        through twelve and the government’s proof at trial. This argument also
                                                                 fails. A ‘variance’ occurs when an indictment remains unchanged, “‘but
Wells’s prescriptions were outside the scope of medical          the evidence at trial proves facts materially different from those alleged
practice and not for any legitimate medical purpose.             in the indictment.’” United States v. Collins, 78 F.3d 1021, 1032 (6th Cir.
                                                                 1996) (quoting United States v. Hathaway, 798 F.2d 902, 910 (6th Cir.
                                                                 1986)). For an appellant to obtain a reversal due to a variance, he must
14   United States v. Wells, et al.        Nos. 98-6010/6011       Nos. 98-6010/6011                 United States v. Wells, et al.           11

  Prior to trial, the government moved to admit Exley’s               In addition to knowing prior to trial the basis and general
testimony. The court’s ruling is altogether unclear, but the       content of Dr. Kennedy’s testimony, appellants had the
court appears to have granted the motion on the basis that it      opportunity to voir dire and cross-examine Dr. Kennedy
was admissible to show Dr. Well’s specific intent as to the        extensively. That they may have disagreed with the content
conspiracy charge in count one, and to show his intent to aid      of his testimony is immaterial for purposes of Rule 16. They
and abet Dillion in obtaining controlled substances by fraud       were on notice that Dr. Kennedy was going to testify that Dr.
and deception, see 21 U.S.C. § 843(a)(3), the subject of the       Wells’s prescriptions for Dillion were outside the scope of
charges in counts two through six. When the defense                medical practice and were not for a legitimate medical
objected to Exley’s testimony at trial, the court invoked Rule     purpose, and they had a “fair opportunity” to refute this
404(b) to admit the evidence, finding that it showed Dr.           testimony. See Fed. R. Evid. 16 advisory committee’s note to
Wells’s intent “in this drug conspiracy.” The court then           1993 amendment. On the facts of this case, we hold that the
found that the probative weight of the evidence outweighed         government satisfied the requirements of Rule 16 and that the
the possibility of any undue prejudice. The defendants did         trial court did not abuse   its discretion by admitting Dr.
not request a limiting instruction, and the court gave none to     Kennedy’s testimony.4
the jury.
                                                                     Dr. Wells and Dillion also argue that the district court erred
   Our review of the district court’s admission of Rule 404(b)     by allowing Drs. Hieronymus and Badrudduja to render
evidence is comprised of three steps. See Johnson, 27 F.3d at      expert opinions regarding the treatment of Arlie Boyd5 even
1190 (citing United States v. Gessa, 971 F.2d 1257, 1261-62        though they had not been qualified as experts and had not
(6th Cir. 1992) (en banc)). First, we review for clear error the   provided summary reports as required by Rule 16(a)(1)(E).
district court’s finding that the prior act occurred. Id.          Prescriptions written by Dr. Wells in Boyd’s name but
Second, we review de novo the court’s legal determination          intended for Dillion were the subject of counts seven through
that the evidence was admissible for a legitimate purpose. Id.     twelve. Dr. Hieronymus, a general practitioner, saw Boyd as
Third, we review for abuse of discretion the court’s finding
that the “other acts” evidence is more probative than
prejudicial. Id. Applying this analysis, we first find that the
                                                                       4
district court did not clearly err in presuming that Dr. Wells’s         Dr. Wells points to a comment the district judge made “in passing,”
statement to Exley occurred. Further, although the district        Dr. Wells’s Br. at 15, when he ruled that the information provided by the
court should have been more clear about the purpose for            government satisfied the requirements of Rule 16. The judge seemed to
                                                                   indicate that, if the case had been civil instead of criminal, the information
which it admitted the testimony, it was admissible to show         might not satisfy the requirements of Fed. R. Civ. P. 26. See Fed. R. Civ.
Dr. Wells’s intent to conspire, see Merriweather, 78 F.3d at       P. 26. Dr. Wells argues on appeal that the requirements of Rule 16 should
1078, and to show that he intentionally -- and not unawares --     be construed at least as broadly as those of Fed. R. Civ. P. 26; and,
aided and abetted Dillion in obtaining controlled substances       because the district judge indicated that the government’s disclosure
by fraud or deception, see Johnson, 27 F.3d at 1192. Finally,      would not meet the requirements of Rule 26, the court essentially found
we find that the district court did not abuse its discretion in    that the information provided by the government was insufficient. We
                                                                   need not address the relative breadth of Rule 16 and Fed. R. Civ. P. 26
finding that the probative value of the testimony was not          here, as it is clear from the record that the district judge concluded that the
substantially outweighed by the danger of undue prejudice.         government satisfied the requirements of Rule 16, and that is sufficient
                                                                   for us to find that the court’s ruling was not an abuse of discretion.
  Dr. Wells also argues that the district court erred by
                                                                       5
admitting evidence of 171 prescriptions he wrote for Dillion’s            Boyd was Dillion’s former father-in-law. He was dead at the time
                                                                   of trial.
12   United States v. Wells, et al.        Nos. 98-6010/6011       Nos. 98-6010/6011                United States v. Wells, et al.         13

a patient between March 1991 and December 1995. Dr.                Ronnie Dillion was in pretty bad shape, and he asked me to
Badrudduja, a general surgeon, saw Boyd as a patient from          go ahead and fill a prescription for Lorcets and write it up as
May 1994 through August 1997, and performed an operation           [if] his brother Dr. Raymond Wells . . . had called it in.” Dr.
on Boyd in June 1994 for cancer of the colon. The testimony        Wells objected to admission of the statement prior to trial and
of Drs. Hieronymus and Badrudduja established that Boyd            again at trial.
was cancer-free and that neither doctor prescribed medication
for Boyd during the period between September 1994 through             On appeal, Dr. Wells argues that the district court should
October 1995, when Dr. Wells prescribed controlled                 have held a hearing to analyze the Exley statement pursuant
substances in Boyd’s name but for Dillion’s use. Over              to this court’s ruling in United States v. Merriweather, 78
defendants’ objections, the district judge found that both         F.3d 1070 (6th Cir. 1996). In Merriweather,      we outlined the
doctors testified as fact witnesses, and not as experts.           appropriate application of Rule 404(b).6 Merriweather, 78
                                                                   F.3d at 1076-77. First, upon the defendant’s objection, the
   The district court did not abuse its discretion by admitting    government must identify the specific purpose for which it
the testimony as lay testimony. Drs. Hieronymus and                offers the “other acts” evidence. Id. at 1076. Second, the
Badrudduja were treating physicians of Boyd, and they              district court must determine whether the identified purpose
testified to their first-hand observations and treatment of him.   is material, or “in issue” in the case. Id. at 1076-77. Third,
See Richardson v. Consolidated Rail Corp., 17 F.3d 213, 218        the court must weigh the evidence under Rule 403 to
(7th Cir. 1994) (stating that doctor is not an expert if his       determine whether its probative value is substantially
testimony is based on observations made in course of               outweighed by the danger of unfair prejudice. Id. at 1077.
treatment, not acquired for purposes of trial, and based on        Finally, the court must “‘clearly, simply, and correctly’
personal knowledge); Williams Enter., Inc. v. Sherman R.           instruct the jury as to the specific purpose for which they [sic]
Smoot Co., 938 F.2d 230, 234 (D.C. Cir. 1991) (stating that        may consider the evidence.” Id. (quoting United         States v.
a broker with specialized knowledge may offer opinion as lay       Johnson, 27 F.3d 1186, 1194 (6th Cir. 1994)).7
witness as long as he had personal knowledge of facts).
Because the doctors testified as fact rather than expert
witnesses, the government was not required to comply with
Fed. R. Crim. P. 16(a)(1)(E) as to the doctors’ testimony.
                                                                       6
          B. Admission of Rule 404(b) Evidence                           Fed. R. Evid. 404(b) provides: “Evidence of other crime, wrongs,
                                                                   or acts is not admissible to prove the character of a person in order to
  Dr. Wells argues that the district court erred by admitting      show action in conformity therewith.” However, the rule allows such
                                                                   ‘other acts’ evidence for other purposes, such as to show knowledge or
“other acts” evidence in two instances. See Fed. R. Evid.          intent. Id. In determining whether to admit evidence under Rule 404(b)
404(b). Dr. Wells first argues that the trial court committed      for ‘other acts,’ the court must balance the probative value of the evidence
reversible error by permitting Wayne Exley, a Kentucky             with the danger of undue prejudice in the manner required by Rule 403.
pharmacist, to testify about a conversation he had with Dr.        See Fed. R. Evid. 404(b) advisory committee’s note.
Wells after the Kentucky Board of Medical Licensure stripped           7
Dr. Wells of his ability to prescribe controlled substances in            Dr. Wells does not argue that the judge failed to give a Rule 404(b)
October 1995. Exley testified that Dr. Wells attempted to          instruction. Even had Dr. Wells argued this issue on appeal, the
                                                                   overwhelming evidence of the defendants’ guilt in this case would compel
“call in” a prescription for Dillion using the DEA registration    us to conclude that the district judge’s failure to give the instruction was
number of his brother, also a physician: “[Dr. Wells] said that    harmless error. See United States v. Bilderbeck, 163 F.3d 971, 978 (6th
                                                                   Cir.), cert. denied, Bilderbeck v. United States, 120 S. Ct. 114 (1999).
