              Case: 18-15145    Date Filed: 04/13/2020   Page: 1 of 10



                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 18-15145
                           ________________________

                    D.C. Docket No. 7:16-cr-00002-HL-TQL-5


UNITED STATES OF AMERICA,

                                                              Plaintiff - Appellee,

                                      versus
WILLIAM BACON,
DONATUS O. MBANEFO,

                                                           Defendants - Appellants.
                           ________________________

                   Appeals from the United States District Court
                       for the Middle District of Georgia
                          ________________________

                                  (April 13, 2020)

Before WILSON, LAGOA, and ANDERSON, Circuit Judges.

PER CURIAM:

      Both Defendant Dr. William Bacon and Defendant Dr. Donatus Mbanefo

were convicted by the jury of conspiracy to distribute controlled substances, in

violation of 21 U.S.C. § 846. Only Dr. Mbanefo was also convicted of two
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substantive counts of unlawful dispensation of a controlled substance, in violation

of 21 U.S.C. § 841(a)(1), (b)(1)(C), and (b)(2). The superseding indictment

alleged that eight individuals conspired to operate the Wellness Center of Valdosta

(the “Valdosta clinic”) and the Relief Institute of Columbus (the “Columbus

clinic”) as pill mills for the purpose of enriching themselves by unlawfully

dispensing controlled substances. Drs. Bacon and Mbafeno proceeded to trial

while the other defendants pled guilty. On appeal, both Defendants challenge the

sufficiency of the evidence to support their convictions of conspiracy. 1 Dr.

Mbanefo argues that the district court constructively amended his substantive

counts and that it erred in calculating his sentence. Dr. Bacon challenges several

evidentiary rulings. We address each challenge in turn.

        I. DR. BACON’S CHALLENGE TO THE SUFFICIENCY OF THE
           EVIDENCE TO SUPPORT HIS CONSPIRACY CONVICTION

       With respect to Dr. Bacon’s challenge to the sufficiency of the evidence to

support his conviction, we have carefully reviewed the relevant parts of the record,

as well as the briefs of the parties. We conclude that there is ample evidence to

support the jury’s finding of guilt. Although there is no need to mention all of the

extensive evidence, the evidence of the medical professionals is significant. Both


1
       Dr. Mbanefo also challenges the sufficiency of the evidence to support his convictions on
the two substantive counts, which we reject summarily. Suffice it to say that there was ample
evidence to support those convictions, including the testimony of the two expert medical
professionals.

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Dr. Gary Kaufman and Dr. Gene Kennedy were qualified as expert witnesses and

testified that the six patient records of Dr. Bacon’s patients reflected that Dr.

Bacon’s prescriptions were written without legitimate medical purpose and outside

the usual course of professional practice. Their opinions were based in significant

part on the large, and often escalating, amounts of Oxycodone, almost always in

combination with Xanax 2 (which combination is risky), and frequently in

combinations of two short-acting doses (e.g., both 30 mg. and 15 mg. of

Oxycodone), which, although not prohibited, is not “medically sound.” The two

expert witnesses also opined that Dr. Bacon’s medical histories were inadequate,

and the records reflected no consideration of treatment alternative to the drugs

prescribed. The expert doctors also opined that the patient files indicated that Dr.

Bacon had overlooked numerous warning signs, including claims by patients to

having been taking absurd amounts or combinations of medications; obviously

forged MRIs; unreasonable patient representations of pain; and abnormal drug

screens. Indeed, in his own testimony, Dr. Bacon corroborated the fact that pretty

much all patients were prescribed Oxycodone with Xanax.

      The foregoing strong evidence that Dr. Bacon’s prescriptions were written

without legitimate medical purpose is bolstered by substantial evidence that the



2
      Xanax is a brand name for Alprazolam drugs.


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Valdosta clinic at which Dr. Bacon worked was more like a “pill mill” than a

legitimate doctor’s office. There is strong evidence that Dr. Bacon was aware of

several warning signs or “red flags,” including knowledge that pharmacies often

called complaining that his prescriptions were inappropriate and refusing to fill

them.

         II. DR. MBANEFO’S CHALLENGE TO THE SUFFICIENCY OF
        THE EVIDENCE TO SUPPORT HIS CONSPIRACY CONVICTION

        We also reject Dr. Mbanefo’s challenge to the sufficiency of the evidence to

support the jury’s finding that he was guilty of conspiracy. Although Dr.

Mbanefo’s tenure at the Columbus clinic (where he worked) was only several

months, the evidence of his guilt was stronger even than that supporting the

conviction of Dr. Bacon. All of the evidence mentioned above with respect to Dr.

Bacon—or equivalent evidence—was applicable also to Dr. Mbanefo. If anything,

the eight prescription records (of Dr. Mbanefo) reviewed by the two expert

witnesses were even more damning than those of Dr. Bacon. And the operation of

the two clinics (with respect to the kind of drug prescriptions, the amounts and the

combination thereof, and the conditions of the office and nature of the patients)

was substantially the same. In short, there was ample evidence on the basis of

which the jury could reasonably find Dr. Mbanefo guilty.




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      III. DR MBANEFO’S CHALLENGE TO THE JURY INSTRUCTION
                  AS A CONSTRUCTIVE AMENDMENT

      With respect to Dr. Mbanefo’s argument that the jury charge amounted to a

constructive amendment of Counts Two and Three (his substantive counts of

dispensing), we conclude that there has been no such constructive amendment. Dr.

Mbanefo argues that the indictment charged that he, aided and abetted by others

known and unknown, including named co-defendants, did unlawfully dispense a

controlled substance. He argues there was a constructive amendment when the

jury instruction did not require the jury to find that the named individuals actually

did aid and abet him. Our decision in United States v. Keller, 916 F.2d 628 (11th

Cir. 1990), described the distinction between a constructive amendment and a

variance:

      we believe the proper distinction between an amendment and a
      variance is that an amendment occurs when the essential elements of
      the offense contained in the indictment are altered to broaden the
      possible bases for conviction beyond what is contained in the
      indictment. A variance occurs when the facts proved at trial deviate
      from the facts contained in the indictment but the essential elements
      of the offense are the same.

Id. at 634.

      The dispensing offense with which Dr. Mbanefo was charged in this case

contains the following elements: (1) the defendant must have dispensed the

controlled substance; (2) for other than legitimate medical purposes in the usual

course of professional practice; and (3) that he did so knowingly and intentionally.
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No aider or abettor is required for proving the offense of dispensing. Accordingly,

Dr. Mbanefo’s argument is without merit.

      Moreover, we note that Dr. Mbanefo raises this argument for the first time

on appeal, and it therefore is subject to plain error analysis. Dr. Mbanefo could not

establish any of the requirements for plain error. For example, Dr. Mbanefo was

convicted of conspiring with the same persons named as aiders and abettors, and

therefore obviously cannot prove that the challenged instruction to the jury

adversely affected his substantial rights. There is no error, plain or otherwise.

       IV. DR. BACON’S CHALLENGE TO THE SUMMARY CHARTS

      We also reject Dr. Bacon’s challenge to the admission of the summary

charts. The government satisfied all of the requirements of Federal Rule of

Evidence 1006. We agree with the government that the instant charts include no

“assumptions” which, under our decision in United States v. Richardson, 233 F.3d

1285, 1293–94 (11th Cir. 2000), would have to be supported by evidence in the

record. Dr. Bacon argues only that there is an inference in the charts that all of his

prescriptions were illegitimate.

      We agree with the government that the charts do not indicate that all of Dr.

Bacon’s prescriptions were illegitimate. Rather, the charts purport only to be a true

record of the number and type of each prescription. And this was brought home to

the jury when counsel for Dr. Bacon asked William Reyes (who supervised the


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preparation of the charts and testified) which of the prescriptions were legitimate

and which were illegitimate. He answered that that was beyond his expertise,

making it obvious to the jury that the charts did not purport to indicate legitimacy

or illegitimacy. Moreover, even if that inference were deemed the kind of

“assumption” requiring evidence, there was ample evidence that most of Dr.

Bacon’s prescriptions were comparable to the ones examined by the two expert

doctors and opined by them to be without legitimate medical purpose and outside

of the usual course of professional practice. In other words, there was ample

evidence that most of Dr. Bacon’s prescriptions were in fact illegitimate.

    V. DR. BACON’S CHALLENGE TO THE TWO EXPERT WITNESSES

      Dr. Bacon also argues that the district court erred in allowing Drs. Kaufman

and Kennedy to testify as experts. We reject this argument as wholly without

merit. Dr. Bacon argues, in conclusory fashion, that there was an insufficient

demonstration that the methodology employed by the two doctors was reliable; in

particular, he argues that there was a lack of detail as to how they applied the

authoritative sources from which they said they derived the standards they applied.

Dr. Bacon’s argument is conclusory, failing to suggest the kind of detail he

believes is lacking. The demonstration of reliability in this case is substantially

similar to that approved by this court in United States v. Azmat, 805 F.3d 1018,

1041–43 (11th Cir. 2015), and readily passes muster in this case also.


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            VI. DR. BACON’S CHALLENGE TO THE COMMENTS
                     MADE BY PHARMACIST ESKEW

      Dr. Bacon also argues that the district court erred when it allowed

pharmacist Bryan Eskew to testify on direct examination by the government that

Dr. Bacon “knew what he was doing,” and allowed him to testify on cross-

examination by Dr. Bacon that “I think the doctor knew what was going on.” Dr.

Bacon acknowledges that there was no contemporaneous objection, and therefore a

plain error analysis applies. We readily conclude that there was no plain error.

      We note initially that one of the two challenged statements by pharmacist

Eskew was elicited by Dr. Bacon’s own cross-examination. Moreover, our

decision in Tampa Bay Shipbuilding & Repair Co. v. Cedar Shipping Co., Ltd.,

320 F.3d 1213, 1221–23 (11th Cir. 2003), established that the 2000 amendment to

Federal Rule of Evidence 701 was not intended to prohibit lay witness opinion

testimony based on specialized knowledge that had traditionally been considered

admissible. We note that Dr. Bacon’s briefs on appeal cite not a single case

holding inadmissible lay opinion testimony similar to that of pharmacist Eskew.

Especially in light of our Tampa Bay decision, we cannot conclude that there is

any obvious or plain error. In addition, we do not believe that Dr. Bacon has

established the third prong of the plain error analysis: he has not shown that there

is a reasonable probability that the result would have changed had pharmacist



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Eskew not so testified. The evidence that Dr. Bacon knew what he was doing was

very substantial, if not overwhelming.

           VII. DR. MBANEFO’S CHALLENGE TO THE DISTRICT
                  COURT’S DRUG QUANTITY FINDINGS

      Finally, we readily reject Dr. Mbanefo’s argument that the district court was

clearly erroneous in its findings with respect to the drug quantity for which Dr.

Mbanefo should be held accountable. Contrary to Dr. Mbanefo’s argument that

there was no reliable evidence that most of Dr. Mbanefo’s prescriptions for

Oxycodone and Alprazolam were illegitimate, the district court found that an

“overwhelming number” of Dr. Mbanefo’s prescriptions were illegitimate. We

conclude that there is ample evidence to support the district court’s findings with

respect to drug quantity, and thus that his findings are certainly not clearly

erroneous. There was very substantial, if not overwhelming, evidence that the

Columbus clinic at which Dr. Mbanefo worked had many of the warning signs and

“red flags” of a “pill mill” operation. There was similarly strong evidence that Dr.

Mbanefo was aware of the same, expressing concern not only to Agent Charles

Sikes in his June 7, 2013, telephone conversation, but also to Junior Biggs. Of

course, the two expert doctors persuasively testified that the prescriptions Dr.

Mbanefo wrote for the eight patient files that they examined were illegitimate, both

in the excessive amount and in the combination of Oxycodone and Alprazolam.

And there was sufficient evidence that Dr. Mbanefo’s prescriptions written for
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other patients were similar such that the district court’s findings with respect to the

quantity for which Dr. Mbanefo should be held accountable is far from clearly

erroneous.

      For the foregoing reasons, we reject the Defendants’ challenges to their

convictions and sentence.

      AFFIRMED.




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