                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     File Name: 08a0497n.06
                                      Filed: August 14, 2008


                                            No. 06-2412


                           UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT



UNITED STATES OF AMERICA,                          )
                                                   )
       Plaintiff/Appellee,                         )
                                                   )
v.                                                 )   ON APPEAL FROM THE UNITED
                                                   )   STATES DISTRICT COURT FOR THE
                                                       EASTERN DISTRICT OF MICHIGAN,
MUKUNDA DEV MUKHERJEE, M.D.,                       )   SOUTHERN DIVISION
                                                   )
       Defendant/Appellant.                        )


       Before: BATCHELDER, SUTTON, and FRIEDMAN,* Circuit Judges.


       FRIEDMAN, Circuit Judge.          The appellant, Mukunda Dev Mukherjee, a physician,

challenges his jury conviction in the United States District Court for the Eastern District of Michigan

of forty-four counts of illegal distribution of controlled substances and his sentence. The case

involved Dr. Mukherjee’s writing of a large number of prescriptions for controlled substances,

including oxycontin and vicodin, at a charge of $45 per prescription. We affirm both his conviction

and his sentence.


       *
         Daniel M. Friedman, Senior Circuit Judge of the United States Court of Appeals for the
Federal Circuit, sitting by designation.
No. 06-2412
U.S. v. Mukunda Dev Mukherjee, M.D.

                                                  I


       A. There was evidence, the sufficiency of which to support the verdict is not challenged,

from which the jury could have found:


       Dr. Mukherjee had his office in Flint, Michigan, where his office hours were from 10 a.m.

until sometimes as late as 3 a.m. The examination table in his office was covered with files and

boxes. The only medical equipment in the office were tongue depressors and an x-ray machine. In

seeing patients, Dr. Mukherjee sat behind his desk, frequently with his feet on it and wearing a

baseball hat.


       Patients, who were unknown to each other, entered the office in groups of two to four. In

return for $45.00 in cash paid directly to Dr. Mukherjee, each patient received a prescription for a

controlled substance. If the patient wanted an additional prescription (which was post-dated), the

total fee was $90.00. Dr. Mukherjee required his patients to have an MRI report in order to obtain

a prescription for oxycontin, a highly addictive drug. He frequently issued prescriptions without

making any physical examination of the patient.


       At some point, the pharmacies in Flint refused to fill Dr. Mukherjee’s prescriptions. Dr.

Mukherjee’s staff identified for patients other pharmacies elsewhere in Michigan where they could

have their prescriptions filled. Patients traveled to those locations for that purpose.




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U.S. v. Mukunda Dev Mukherjee, M.D.

        B. The superceding indictment charged Dr. Mukherjee and two others with one count of

conspiracy to distribute controlled substances and fifty-four counts of illegally distributing

prescriptions for such substances, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C ), (b)(1)(D) and

(b)(3). The jury convicted him of forty-four counts of illegal distribution and acquitted him of ten

counts of illegal distribution and of conspiracy. Each distribution count involved a prescription for

a particular controlled substance issued to a particular patient.


        At trial, the prosecutor introduced the testimony of three undercover police officers who,

using false names, made a total of seven visits to the doctor’s office over a three-month period.

Collectively, they obtained fifty-three prescriptions for various controlled substances, paying Dr.

Mukherjee $45.00 in cash for each one. Dr. Mukherjee did not physically examine the officers

before issuing the prescriptions to them.


        Dr. Mukherjee testified in his own defense. He stated that he had issued the prescriptions

for the controlled substances to alleviate the patients’ severe pain, that such prescribing was proper

and appropriate medical practice, and that he had done nothing wrong. In response to the question

“[y]ou’re telling these jurors that herding three or four people into your office that don’t know each

other is a legitimate medical practice, is that your testimony, sir?”, he stated: “[a]bsolutely and

totally.”


        At the end of his cross-examination, there was the following colloquy between the prosecutor

and Dr. Mukherjee:


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U.S. v. Mukunda Dev Mukherjee, M.D.

       Q: As far as you’re concerned, Dr. Mukherjee, you did nothing wrong, isn’t that true?
       A: Yes, that is correct . . .
       Q: Sir, would you listen to me. Given another chance you’d write every one of those
       controlled substance prescriptions again that you wrote in 2001 and ‘04, you’re ready
       to go, right? You’d do it again? Sir?
       A: Yes.
       In determining Dr. Mukherjee’s sentence, the district court imposed the statutory maximum

under each count, to be served consecutively. The district court stated that it was imposing a life

sentence, and the parties have treated the sentence as such. The sentences total 328 years. Dr.

Mukherjee was sixty-four years old at the time of sentencing.


                                                 II


       Dr. Mukherjee challenges his conviction on four grounds. None is persuasive.


       A. He contends that he was denied a fair trial because the district court excluded the

testimony of his expert witness, Dr. Baumann. The government had introduced the testimony of Dr.

Thornburg, an osteopathic physician and pharmacologist, who opined that Dr. Mukherjee’s issuance

of the prescriptions for controlled substances was not a proper medical practice. Dr. Mukherjee then

proposed to call as an expert witness Dr. Baumann, a pharmacist who had a doctorate of pharmacy.

According to Dr. Mukherjee, Dr. Baumann was an expert in pain management, who apparently

would testify that Dr. Mukherjee’s actions were medically appropriate. His defense counsel told the

court that Dr. Baumann would “be able to testify based upon his experience, based upon his




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U.S. v. Mukunda Dev Mukherjee, M.D.

credentials that what the doctor was doing and what he did was part of a legitimate medical

practice.”


        The district court refused to permit Dr. Baumann to testify. The court stated: “while he may

be a very esteemed person in the field of pharmacy – of the practice of pharmacy and what he does

at Munsen Medical Center, . . . I don’t think he’s got the qualifications to evaluate the actions of this

physician in his practice.” When Dr. Mukherjee suggested that Dr. Baumann would be qualified to

testify as an expert in pain management, the court responded: “[h]e’s not a medical doctor, he’s not

a - - he’s not a D.O., he’s not an M.D. And I don’t think that under the circumstances his testimony

is admissible on this matter.”


        We review a district court’s ruling on whether to permit an expert witness to testify before

a jury for abuse of discretion. United States v. Jones, 107 F.3d 1147, 1150-51 (6th Cir. 1997). Dr.

Baumann was a pharmacist who could not issue prescriptions. He was not a physician. His

professional skills and qualifications were in analyzing and filling prescriptions. He may have been

an expert in pain management, but that expertise did not extend to determining what treatment

(including appropriate medication) would be appropriate for a particular condition or patient. The

district court did not abuse its discretion in refusing to permit Dr. Baumann to testify that Dr.

Mukherjee’s issuance of a large number of prescriptions for controlled substances constituted

appropriate medical practice.




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U.S. v. Mukunda Dev Mukherjee, M.D.

       B. Dr. Mukherjee accuses the government of prosecutorial misconduct because the

prosecutor kept in the courtroom boxes containing all the prescriptions that Dr. Mukherjee had

issued during the three-year period charged in the conspiracy count. According to Dr. Mukherjee,

“by putting boxes of prescriptions in plain sight of the jury - and deliberately referencing them while

cross-examining Defendant as though they were all 80 mg OxyContin prescriptions - the prosecutor

was suggesting to the jurors that they should assume every prescription in the boxes was written

without a legitimate medical purpose.”


       Nothing in the record supports such hyperbole. The prescriptions had been listed on the

government’s exhibit list. During cross-examination of Dr. Mukherjee the prosecutor stated that he

might offer the prescriptions in his rebuttal, although he did not do so. The presence of the boxes

in the courtroom did not deny Dr. Mukherjee a fair trial.


       C. Dr. Mukherjee next contends that he was denied a fair trial when the government excused

a female, African-American juror after she had been seen talking to a man who had attended the trial

and sat behind Dr. Mukherjee and apparently was a friend of his. The conversation took place after

the jury had been excused at the end of the day.


       The following morning the court questioned the juror about the incident and was told that

she had not discussed the case and that the man had returned to Chicago. When the court wondered

whether the juror should be excused, defense counsel stated: “[w]e’ll leave that up to Your Honor.”

After further questioning of the juror, the court stated that: “it might be best under the circumstances


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No. 06-2412
U.S. v. Mukunda Dev Mukherjee, M.D.

if I excuse you from the jury because there might be - - might be a possible indication here that some

impropriety, and - - and especially when I learned the gentleman that engaged you in that

conversation is a friend of the defendant here.” The court excused the juror and defense counsel

objected.


       Considering all the circumstances, the district court acted within its discretion in excusing

the juror. Indeed, it appeared that initially defense counsel had not objected but left it to the court

to do what it deemed appropriate.


       D. Finally, Dr. Mukherjee contends that at his trial he was denied effective assistance of

counsel because of three alleged errors his attorney committed. “[W]e typically do not consider

ineffective assistance of counsel claims on direct appeal, because the record usually is not

sufficiently developed to permit proper assessment of such claims.” United States v. Neuhausser,

241 F.3d 460, 474 (6th Cir. 2001). We follow that practice here. Moreover, considering the nature

of the alleged deficiencies by counsel and the strength of the government’s case, it appears unlikely

that “counsel’s conduct so undermined the proper functioning of the adversarial process that the trial

cannot be relied on as having produced a just result” or that counsel’s alleged “deficient performance

prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 686-87 (1984).


                                                  III


       A. The district court held three separate hearings, at which witnesses testified, before

announcing the sentence. It recognized that “the guidelines in this case are no longer mandatory

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U.S. v. Mukunda Dev Mukherjee, M.D.

guidelines, they are suggested guidelines.” The court “determin[ed], finally,” to “follow the

guidelines, finding them to be an appropriate penalty in this matter even though as I say the

guidelines are not - - are not mandatory. And I find that the guideline range in this particular offense

is certainly an appropriate one for infliction of a - - an appropriate penalty.” The court explained at

length how and why it imposed the particular sentence.


        The court determined that the proper offense level under the guidelines was 36. The principal

issue in dispute was the amount of drugs covered by the prescriptions Dr. Mukherjee had issued.

The court concluded that


        [b]ased on all the testimony and other evidence offered at trial, there is a
        preponderance of the evidence that the drug amount represented in defendant’s
        convictions does not reflect the scale of the offense in which defendant was involved.
               The Court finds that the defendant wrote many more prescriptions without a
        legitimate medical purpose than the 44 prescriptions in his counts of conviction. And
        that defendant’s medical office was effectively a prescription mill with addicts
        coming from out of state even to get prescriptions, eventually making local
        pharmacies suspicious of defendant’s practice.
        The court utilized data provided by “the Michigan Automated Prescription System,” “a

system established by the State of Michigan that records all prescriptions for Schedule II, III, IV, and

V controlled substances.” It explained:


                In this case MAPS recorded all prescriptions for scheduled drugs that were
        written by the defendant between January the 1st , 2003 and June the 30th, 2004.
        Based on the sentencing guidelines, the quantity of drugs prescribed between January
        1st, 2003 and June 30th, 2004, were converted into an equivalent marijuana amount
        using all the drugs prescribed by defendant and recorded in MAPS gives a marijuana
        equivalency of 35,262.549 kilograms.


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No. 06-2412
U.S. v. Mukunda Dev Mukherjee, M.D.

       The Probation Department had reduced the number of prescriptions written by twenty-five

percent because not all of them were necessarily medically inappropriate. This calculation “yield[ed]

a total marijuana equivalent amount of 26,463.49 kilograms of marijuana. And that results in a base

offense level of 36.” The court pointed out that even if the total amount of drugs involved in the

MAPS data were reduced by 70 percent, “all the way down to 10,578.765 kilograms of marijuana

equivalent, this would still correspond to a base offense level of 36.” The court rejected Dr.

Mukherjee’s contention that only the amount of controlled substances involved in the counts on

which he was convicted could be used in determining his offense level.


       After calculating the offense level as 36, the district court made three upward adjustments

that are here unchallenged– two levels for abuse of a position of trust, four levels for a leadership

role, and two levels for obstruction of justice by giving false testimony. The court denied Dr.

Mukherjee’s request for a two level downward departure. These calculations produced a total

offense level of 44, for which the guideline range was life imprisonment. The court imposed a life

sentence. Because none of the counts of conviction provided for a life sentence, however, the court

explained that the sentence consisted of the statutory maximum on each count of conviction, to be

served consecutively.


       B. Dr. Mukherjee’s principal challenge to his sentence is his claim that because the jury did

not make any findings of the total number of prescriptions for controlled substances he had issued,

the district court’s reliance on the MAPS data was improper. According to Dr. Mukherjee, the

district court should have based the sentence solely upon the prescriptions involved in the counts of

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No. 06-2412
U.S. v. Mukunda Dev Mukherjee, M.D.

conviction, which would have produced a total offense level of 28, with a guideline sentencing range

of 78-97 months. He relies upon the Supreme Court decisions in Apprendi v. New Jersey, 530 U.S.

466 (2000), Blakely v. Washington, 542 U.S. 296 (2004), and United States v. Booker, 543 U.S. 220

(2005), and their progeny, as establishing that, in determining the sentence, the district court may not

find, based on a preponderance of the evidence, facts that the jury had not found.


        Dr. Mukherjee reads those cases too broadly. The limitation to jury-found facts applies only

if the court imposes a guideline sentence that exceeds the statutory or mandatory guidelines

maximum. See Booker, 543 U.S. at 244 (stating that “[a]ny fact . . . which is necessary to support

a sentence exceeding the maximum authorized by the facts established by . . . a jury verdict must be

admitted by the defendant or proved to a jury beyond a reasonable doubt”)(emphasis added). This

court has held that, in determining an advisory guideline sentence, a district court may find by a

preponderance of the evidence additional facts not found by the jury. United States v. Gates, 461

F.3d 703, 707-08 (6th Cir.), cert. denied, 127 S. Ct. 602 (2006); see also United States v. Cook, 453

F.3d 775, 776-77 (6th Cir. 2006). The district court did not err in making additional findings based

on the MAPS data in determining the offense level.


        Dr. Mukherjee also contends that in determining his sentence, the district court failed

adequately to consider the factors that 18 U.S.C. § 3553(a) states the court “shall consider” “in

determining the particular sentence to be imposed,” which shall be “sufficient, but not greater than

necessary, to comply with” certain of those factors. The district court, however, is not required to

discuss in detail each of those factors. United States v. Gale, 468 F.3d 929, 940 (6th Cir. 2006);

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U.S. v. Mukunda Dev Mukherjee, M.D.

United States v. Harness, 453 F.3d 752, 757 (6th Cir. 2006); United States v. Kirby, 418 F.3d 621,

626 (6th Cir. 2005). It suffices if the district court’s findings show that the court considered those

factors. See United States v. Smith, 505 F.3d 463, 467-68 (6th Cir. 2007) (“When reviewing a district

court’s consideration of the § 3553(a) factors, we have never required ‘the ritual incantation of the

factors to affirm a sentence.’ To hold otherwise when the record shows adequate proof of

deliberation would effectively insert an unnecessary insistence upon formalism into the statute.”).




       Here the district court adequately explained the factors it considered in determining the

sentence. In addition to the statements previously quoted, the court also stated that it “has carefully

and thoroughly considered the - - the sentencing guidelines and has also carefully and thoroughly

considered all the factors contained in Title 18 of the United States Code, Section 3553(a).” The

court considered but rejected Dr. Mukherjee’s argument that “there should be a downward departure

because of his age and health, because of his lack of a prior criminal history, and because he would

suffer enough with the revocation of his medical license. And because he is a potential asset to

society as a contributing member and because there is a low risk of him being a repeat offender . .

. Having considered all the evidence presented to this Court, the Court finds that the defendant’s

offense was egregious, indeed egregious and defendant’s situation does not merit any downward

departure.” [J.A. 2009-10] The court also stated that Dr. Mukherjee “has substantial medical

credentials, including previous teaching positions at various hospitals and universities, however for




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U.S. v. Mukunda Dev Mukherjee, M.D.

unknown reasons, his medical practice has deteriorated drastically and ultimately he in effect became

a distributor of drugs and nothing more.”


       Finally, Dr. Mukherjee contends that the district court’s imposition of consecutive sentences

violated the guidelines “grouping” standard. That standard states:


                If the sentence imposed on the count carrying the highest statutory maximum
       is less than the total punishment, then the sentence imposed on one or more of the
       other counts shall run consecutively, but only to the extent necessary to produce a
       combined sentence equal to the total punishment.
       Here, the “highest statutory maximum” under the counts of conviction was twenty years,

which was less than the life sentence the guidelines provided that the district court decided to

impose. The guidelines thus permitted the imposition of consecutive sentences. See Jenkins v.

United States, 394 F.3d 407, 410-12 (6th Cir. 2005) (even if counts grouped together, this does not

prevent consecutive sentences under § 5G1.2); United States v. Colbert, 977 F.2d 203, 205-07 (6th

Cir. 1992) (consecutive sentences of sixty months, sixty months, and fifteen months appropriate on

separate perjury counts in order to reach the guidelines-approved sentence of 135 months); see also,

18 U.S.C. § 3584(b) (authorizing consecutive terms following consideration of the factors set forth

in § 3553(a)). Such consecutive sentences were an appropriate method of effecting the life sentence

that the guidelines authorized and the district court imposed.


       C. We have considered Dr. Mukherjee’s other contentions, but find them unpersuasive. We

need not further discuss them.




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No. 06-2412
U.S. v. Mukunda Dev Mukherjee, M.D.

       The judgment of the district court embodying Dr. Mukherjee’s convictions and sentence is

affirmed.




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