                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-27-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4015




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                                                            NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT


                             Nos. 04-4015 and 05-1229


                       UNITED STATES OF AMERICA

                                        v.

                           BERNARD ROTTSCHAEFER,
                                         Appellant


                  Appeals from the United States District Court
                    for the Western District of Pennsylvania
                        (D.C. Criminal No. 03-cr-00162)
                  District Judge: Honorable Gary L. Lancaster


                              Argued March 3, 2006

         Before: RENDELL, BECKER and GREENBERG, Circuit Judges.

                              (Filed: April 27, 2006)



Irving M. Green
1092 Fifth Avenue
New Kensington, PA 15608

Eli D. Stutsman [ARGUED]
13th Floor
621 Southwest Morrison
Portland, OR 97205
John D. Ceraso
1725 Fifth Avenue
Arnold, PA 15068-4417
  Counsel for Appellant

Mary M. Houghton [ARGUED]
Laura S. Irwin
Paul M. Thompson
Office of the U.S. Attorney
700 Grant Street, Suite 400
Pittsburgh, PA 15219
   Counsel for Appellee



                                OPINION OF THE COURT


RENDELL, Circuit Judge.

       Bernard Rottschaefer, M.D. challenges his convictions and sentence on 153 counts

of a 208-count indictment charging unlawful distribution of controlled substances, in

violation of 21 U.S.C. § 841(a)(1). At trial, five of Rottschaefer’s patients testified that

he fed their drug addictions by prescribing them Xanax, Oxycontin, and other addictive

painkillers; four of them testified that they performed sexual favors in exchange for the

prescriptions. Rottschaefer seeks a new trial based on alleged prosecutorial misconduct,

ineffective assistance of counsel and evidence that a government witness perjured herself

at trial. We conclude that these claims lack merit and will affirm Rottschaefer’s

convictions. We will vacate his sentence and remand for resentencing in accordance with

United States v. Booker, 543 U.S. 220 (2005).

                                              I.

                                              2
       Rottschaefer’s prosecutorial misconduct and ineffective assistance claims are

based on his theory that he was improperly tried and convicted under a medical

malpractice or negligence standard, rather than the higher standard of proof required for

criminal convictions.1 He argues that the “no legitimate medical reason” standard used

by the prosecution throughout the trial, without defense objection, equates to a civil,

rather than a criminal, standard of liability.

       This argument finds no support in the law. The Controlled Substances Act

(“CSA”), under which Rottschaefer was convicted, 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). Physicians are exempt from

this provision to the extent that they act lawfully, see United States v. Moore, 423 U.S.

122, 131 (1975), but they are subject to criminal liability when their drug prescribing and

dispensing activities fall “outside the usual course of professional practice,” id. at 124.

The CSA’s implementing regulations provide that, 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,” and that a person who knowingly issues an

  1
   We note that these claims provide rather awkward vehicles for Rottschaefer’s
substantive arguments. Rottschaefer’s real contentions are that the law was somehow
confused in the District Court and that the evidence presented was insufficient to support
a conviction under the statute. Rather than challenging the jury instructions or the
sufficiency of the evidence directly, however, he chose to proceed on prosecutorial
misconduct and ineffective assistance grounds.

                                                 3
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). Thus, the

regulations clearly state that prescribing drugs for other than a “legitimate medical

purpose” is a basis for criminal liability under the CSA.

       Moreover, courts of appeals frequently use the “no legitimate medical purpose”

standard to define physician liability under § 841(a)(1). For example, the Fifth Circuit

Court of Appeals stated the elements of the offense as follows:

       To convict Dr. Norris of violating 21 U.S.C. § 841(a)(1), the government was
       required to prove “(1) that he distributed or dispensed a controlled substance,
       (2) that he acted knowingly and intentionally, and (3) that he did so other than
       for a legitimate medical purpose and in the usual course of his professional
       practice.”

United States v. Norris, 780 F.2d 1207, 1209 (5th Cir. 1986) (quoting United States v.

Rosen, 582 F.2d 1032, 1033 (5th Cir. 1978)). The Court explained that, “[a]lthough the

third element is not expressly required by § 841,” it derives from the language in the

“pertinent regulations” quoted above. Id. (quoting 21 C.F.R. § 1306.04(a)). Other courts

adopt the same approach. See, e.g., 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. Voorhies, 663 F.2d 30, 33 (6th Cir. 1981)

(rejecting defendant’s challenge to jury instruction based on 21 C.F.R. § 1306.04 and

incorporating “other than a legitimate medical purpose” standard).



                                              4
       Finally, “there is considerable room to doubt whether” the distinction between the

“no legitimate medical reason” and the “outside the usual course of professional practice”

standards “is of any importance.” Nelson, 383 F.3d at 1231. Several courts have held

that “there is no difference in the meanings of the statutory phrase, ‘[i]n the course of

professional practice’ and the regulations’ phrase, ‘legitimate medical purpose,’” United

States v. Kirk, 584 F.2d 773, 784 (6th Cir. 1978) (citing cases); the Fourth Circuit Court

of Appeals goes even farther, holding that the “without a medical purpose” standard that

Rottschaefer challenges is “more strict than [the “outside the usual course of professional

practice” standard] required by Moore.” United States v. Cuong, 18 F.3d 1132, 1138 (4th

Cir. 1994) (emphasis added). As the Nelson court observed:

       It is difficult to imagine circumstances in which a practitioner could have
       prescribed controlled substances within the usual course of medical practice
       but without a legitimate medical purpose. Similarly, it is difficult to imagine
       circumstances in which a practitioner could have prescribed controlled
       substances with a legitimate medical purpose and yet be outside the usual
       course of medical practice.

383 F.3d at 1231.

       Thus, the prosecution acted well within the law when it defined Rottschaefer’s

crimes in terms of prescribing narcotics for “no legitimate medical reason.” Rottschaefer

has not explained to our satisfaction how an improper standard was applied in his trial at

all, much less how the application of that standard amounted to prosecutorial misconduct

or ineffective assistance of counsel. We will not reverse his convictions on these

grounds.


                                              5
                                              II.

       Rottschaefer also appeals the District Court’s denial of his motion for a new trial

under Fed. R. Crim. P. 33. Rottschaefer moved for a new trial based on evidence,

discovered after trial, that one of his former patients perjured herself at his trial. The

patient, Jennifer Riggle, had testified at trial that she traded sex with Rottschaefer for

various prescriptions. After trial, Rottschaefer’s attorney discovered 529 pages of

handwritten correspondence between Riggle and her then-boyfriend in which Riggle

denied having sex with Rottschaefer and explained that she had agreed to lie in order to

receive a more favorable sentence on drug charges pending against her in state court. In

the letters, Riggle describes conversations in which DEA agents suggested that she would

be rewarded for “good” testimony2 and explains her decision to go along

with their suggestions.3

       The District Court denied Rottschaefer’s motion. Although he found “no reason to

doubt [the letters’] authenticity,” the District Court Judge concluded that the letters did

not justify a new trial because they did no more than provide impeachment material to the

defense and were cumulative of other evidence adduced at trial. Because they were not


  2
  “They’re saying he was bribing patients with sex for pills, but it never happened to
me. DEA said they will cut my time for good testimony. I don’t want to be a snitch but
what should I do? Everyone else is testifying against him.”
  3
   “I had just prayed & asked God to give me the confidence to be able to lie about the
Dr. just this once. I am not a good liar & I’m scared. The only reason I’m doing it is
cause he’s pretty much already had & he doesn’t deserve to be practicing. He has ruined
many lives & some people even O.D.’d on the Oxy’s.”

                                               6
made under oath, Riggle’s statements in the letters would have been admissible only for

impeachment purposes; the evidence was cumulative because one of Rottschaefer’s

witnesses had testified at trial that Riggle had told her that she had lied about committing

sex acts with Rottschaefer to receive a deal from the DEA.

       “Rule 33 motions for a new trial are directed to the district court’s discretion, and

our function on appeal is to decide whether the trial judge abused that discretion or failed

to exercise it.” United States v. Iannelli, 528 F.2d 1290, 1292 (3d Cir. 1976). Although

we find the District Court’s analysis somewhat perfunctory, we are not convinced that it

abused or failed to exercise its discretion in denying Rottschaefer’s motion.

       A district court may only grant a new trial on the basis of newly discovered

evidence where five requirements are met:

       •      the evidence was, in fact, newly discovered, i.e., discovered since trial;

       •      facts are alleged from which the court can infer diligence on the part of the
              movant;

       •      the new evidence is not “merely cumulative or impeaching”;

       •      the evidence is material to the issues involved; and

       •      the evidence is such, and of such nature, that on a new trial it would
              probably produce an acquittal.

United States v. Saada, 212 F.3d 210, 216 (3d Cir. 2000). The defendant bears a “‘heavy

burden’ in meeting these requirements.” Id. (quoting United States v. Ashfield, 735 F.2d

101, 112 (3d Cir. 1984)).

       As an initial matter, we agree with the District Court’s assessments of the letters as

                                              7
“cumulative” and “impeaching.” But we must consider several arguments that the Court

declined to address as to why the letters are not “merely cumulative or impeaching.”

First, Rottschaefer argues that the letters are “exculpatory.” Cf. Saada, 212 F.3d at 216

(implying that evidence that is “exculpatory” is not “only impeaching”). This contention

lacks merit. While the letters unquestionably undermine Riggle’s testimony that she

traded sexual favors for prescriptions, they do not exculpate Rottschaefer from the

underlying offense. The crime for which Rottschaefer was convicted was not, as he

claims, trading drugs for sex. Rather, he was convicted of unlawfully distributing

controlled substances outside the course of professional practice. If anything, Riggle’s

letters reinforce other evidence that Rottschaefer’s prescription practices fell outside of

the bounds of ordinary professional practice.4

       Rottschaefer also argues that the evidence of Riggle’s perjury raises doubts about

the testimony of three other government witnesses. Evidence introduced at trial

established that the four women who testified that they exchanged sex for drugs with

Rottschaefer, including Jennifer Riggle, knew each other and worked together to procure

Oxycontin from Rottschaefer to abuse and sell. Rottschaefer also claims that each of the

four women initially denied having sexual contact with Rottschaefer. He argues that

evidence of Riggle’s perjury would have raised an inference that the other witnesses were


  4
   For example, Riggle’s letters state: “[Rottschaefer] has ruined many lives & some
people even O.D.’d on the Oxy’s,” and “See, the doctor is still in the wrong for not
wanting to see Xrays of my back before prescribing those pills. All he did was have me
bend over to feel my spine & just by that he decided I was in a lot of pain.”

                                              8
also lying.

       This argument fails because the record already contained evidence of Riggle’s

perjury from which Rottschaefer could have argued that the testimony of the other

witnesses was tainted. As the District Court pointed out, Deborah Peterson, who had

been incarcerated at Westmoreland County Prison with Riggle, testified at trial that

Riggle had confided in Peterson about lying in Rottschaefer’s case. Specifically, Peterson

said, “what [Riggle] ended up telling me was that she flat outright lied about having

committed some sexual act with Dr. Rottschaefer to receive a reduced sentence or

possibly no penalty at all.” When defense counsel questioned Peterson further about

Riggle’s motives for lying, Peterson responded:

       [T]o state like pretty much in exact terms the reason and how she came about
       doing it was as she was being questioned by the federal agents, I guess, in
       prison, insinuated that–about some kind of sexual acts could this have possibly
       occurred, and she took it as an opportunity–she seen it as an opportunity, and
       that’s exactly how she stated it to me, to help herself if she would go along
       with that.

Peterson’s testimony calls the other witnesses’ testimony into question in precisely the

same manner as Riggle’s letters. Of course, evidence of Riggle’s perjury in the form of

Riggle’s own letters might have been more compelling than Peterson’s testimony. But it

would not have added any new facts to the jury’s calculus, and is therefore “merely

cumulative.”

       Furthermore, although the District Court did not discuss this point, we note that the

evidence proffered by Rottschaefer after trial would not “probably produce an acquittal.”


                                             9
Saada, 212 F.3d at 216. As discussed above, sexual contact with patients was not an

element of the convicted offense. A review of the verdict demonstrates that the jury

understood this point–it acquitted Rottschaefer of several counts despite testimony of

sexual favors, and convicted him of others with respect to which there was no evidence of

sexual contact.5 On this record, we cannot conclude that further evidence that Riggle did

not engage in sexual activity with Rottschaefer would have affected the jury’s verdict.

       Moreover, the record contains sufficient evidence, independent of Riggle’s

testimony, to uphold Rottschaefer’s convictions. The government’s expert, Dr. Douglas

Clough, testified that there was no evidence in Riggle’s medical records of pain that

would justify prescribing OxyContin or other addictive narcotics. He also noted that

Rottschaefer never ordered or performed diagnostic tests regarding the back problem for

which he prescribed the drugs. Finally, Dr. Clough opined that there was “no legitimate

reason to keep prescribing the chronic long-acting potentially addicting narcotic . . .

without an attempt . . . to evaluate and treat the back pain without using some therapeutic


  5
   Rottschaefer’s trial counsel acknowledged this point at Rottschaefer’s sentencing
hearing, when he said:

              If you look at that verdict, they acquitted him, I believe, of 53 counts
       involving the same five women who testified for the government because of
       various reasons that the Court is aware of. The jury apparently to reach that
       kind of verdict, if you analyze that verdict in any way at all, wasn’t based on
       sex for drugs. It was based on the testimony of a supposedly expert witness
       for the government who went through all these multitude of charts and went
       into expressing his opinion as to what was required in order to issue a
       prescription . . . .


                                             10
modality other than the chronic long-acting narcotic.” This testimony, particularly in

conjunction with the evidence that Rottschaefer had issued prescriptions to other women

for apparently illicit purposes, amply supports the jury’s guilty verdicts on the charges

that Rottschaefer prescribed narcotics to Jennifer Riggle outside the usual course of

professional practice.

       Thus, although we acknowledge that the District Court could have engaged in a

more thorough analysis of Rottschaefer’s claims, we cannot conclude that it abused its

discretion in denying his Rule 33 motion for a new trial. We also decline Rottschaefer’s

invitation to exercise our “supervisory powers,” pursuant to Mesarosh v. United States,

352 U.S. 1 (1956), to grant him a new trial. We do not think that the situation before us is

comparable to Mesarosh. We will accordingly affirm the District Court’s decision and

Rottschaefer’s convictions.

                                            III.

       Rottschaefer was sentenced to 78 months in prison on September 24, 2004, under

the mandatory Guidelines regime, based on drug amounts found by the District Court. He

argues that his sentence violated United States v. Apprendi, 530 U.S. 466 (2000), and

United States v. Booker, 543 U.S. 220 (2005). Having determined that Booker issues are

best resolved by the District Court in the first instance, we will vacate his sentence and

remand for resentencing in accordance with that opinion. See United States v. Davis, 407

F.3d 162, 165 (3d Cir. 2005) (en banc).

                                             IV.

                                             11
      For the foregoing reasons, we will affirm Rottschaefer’s convictions. We will

vacate his sentence and remand for resentencing under Booker.




                                          12
