                                                                                   F I L E D
                                                                           United States Court of Appeals
                                                                                   Tenth Circuit
                                          PUBLISH
                                                                                    SEP 20 2004
                       UNITED STATES COURT OF APPEALS
                                                                               PATRICK FISHER
                                                                                         Clerk
                                     TENTH CIRCUIT



 UNITED STATES OF AMERICA,

        Plaintiff-Appellee,
 v.                                                              No. 02-6183

 RICKY JOE NELSON,

        Defendant-Appellant.


            APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE WESTERN DISTRICT OF OKLAHOMA
                          D.C. No. CR-01-142-R


Randal A. Sengel, Assistant United States Attorney, (Robert G. McCampbell, United
States Attorney, with him on the briefs) Oklahoma City, OK, Attorneys for Plaintiff-
Appellee.

Thomas D. McCormick, Oklahoma City, OK, Attorney for Defendant-Appellant.


Before KELLY, HOLLOWAY and McCONNELL, Circuit Judges.


HOLLOWAY, Circuit Judge.


       This is an appeal from a criminal conviction for conspiracy to distribute controlled

prescription drugs outside the usual course of professional practice (sale of prescription drugs

over the internet) and conspiracy to engage in a monetary transaction with criminally derived
property (money laundering). Defendant/appellant Ricky Joe Nelson (Nelson) is a physician

who, with co-conspirators Fuchs and Shadid, operated an internet pharmacy that sold

hydrocodone (a barbiturate and a Schedule III controlled substance) over the internet.

Nelson appeals his conviction, arguing that there was insufficient evidence to support

conviction on either count as there was no evidence of a conspiracy. Nelson also argues that

the trial judge committed reversible error in improperly instructing the jury as to the illegal

distribution charge.

       For the reasons detailed below, we conclude that the government has presented

sufficient evidence to support Nelson’s conspiracy conviction. We also conclude that there

was no error in the jury instructions given at trial. Accordingly, we AFFIRM Nelson’s

conviction.

                                               I

                                         Background

       Clayton Fuchs (Fuchs), an unindicted co-conspirator, operated an internet

pharmacy called “NationPharmacy.com.” where customers could obtain prescription and

non-prescription drugs. In accord with federal law, all requests for prescription drugs

were first reviewed by a physician, defendant Nelson, who either approved or denied the

request. Nelson, however, approved 90-95% of all prescription drug requests and did so

without ever examining his purported patient. Moreover, the vast majority of filled

prescriptions were for hydrocodone, a powerful and addictive pain-killer and a Schedule


                                             -2-
III controlled substance.

       Customers who used Fuchs’s internet pharmacy would have their orders routed

through a brick and mortar pharmacy called Main Street Pharmacy. Nelson would

physically visit Main Street Pharmacy to sign the prescription requests, and the customer

would receive his or her prescription by mail and pay Fuchs directly. Nelson, the

prescribing physician, was never paid by any customer. Instead, Nelson received a total

of $175,000, which was wired directly from Fuchs into an offshore account.

       Nelson was charged and convicted of both conspiracy to distribute controlled

prescription drugs outside the usual course of professional practice, in violation of 21

U.S.C. § 846, and conspiracy to launder money, in violation of 18 U.S.C. § 1956(h).

Nelson now appeals, arguing that there was insufficient evidence at trial to show a

conspiracy existed. Nelson also argues that the district court erred in instructing the jury

that it could convict for violation of 21 U.S.C. § 846 (conspiracy to illegally distribute

controlled prescription drugs) if it found the prescriptions were either without a legitimate

purpose or outside the course of professional practice when it instead should have

instructed the jury that conviction was appropriate only if it found that the prescriptions

were both for no legitimate purpose and outside the course of professional practice.




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                                              II

                                         Discussion

                                              A

                                 Sufficiency of the evidence

                 We review the record for sufficiency of the evidence de
              novo. Evidence is sufficient to support a conviction if a
              reasonable jury could find the defendant guilty beyond a
              reasonable doubt, given the direct and circumstantial
              evidence, along with reasonable inferences therefrom, taken
              in a light most favorable to the government. Rather than
              examining the evidence in “bits and pieces,” we evaluate the
              sufficiency of the evidence by “considering the collective
              inferences to be drawn from the evidence as a whole.”

United States v. Wilson, 107 F.3d 774, 778 (10th Cir. 1997) (citations omitted) (quotation

marks in original). “A conspiracy conviction requires the Government to prove, [1] that

two or more persons agreed to violate the law, [2] that the defendant knew at least the

essential objectives of the conspiracy, [3] that the defendant knowingly and voluntarily

became a part of it, and [4] that the alleged coconspirators were interdependent.” United

States v. Torres, 53 F.3d 1129, 1134 (10th Cir. 1995).

       Nelson argues the government failed to present sufficient evidence establishing an

agreement between Nelson and any other person to either distribute controlled

prescription drugs outside the usual course of professional practice or to launder money.

In support, Nelson relies upon the fact that there was no witness who testified at trial as to

the existence of any agreement. We are not persuaded.


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       “[A]n agreement constituting a conspiracy may be inferred from the acts of the

parties and other circumstantial evidence indicating concert of action for the

accomplishment of a common purpose.” United States v. Johnson, 42 F.3d 1312, 1319

(10th Cir. 1994). Thus, “the absence of any direct evidence of a conspiracy is immaterial

so long as there is sufficient circumstantial evidence of a conspiracy to support a finding

of guilt beyond a reasonable doubt.” Torres, 53 F.3d at 1135.

       At trial, the government presented more than sufficient circumstantial evidence of

an agreement between Nelson and Fuchs to render the lack of direct evidence immaterial.

This evidence consisted of the testimony of fifteen different witnesses and established the

existence of an operation, which Nelson willingly participated in, to distribute controlled

prescription drugs over the internet and to hide the proceeds of those sales. The most

significant evidence was the testimony of Alexander Weeks (Weeks), the person who set

up the website, Jerry Shadid (Shadid), the resident pharmacist at Main Street Pharmacy,

Myron Thompson (Thompson), another pharmacist at Main Street Pharmacy, and Misty

Dupes (Dupes), the office manager for Fuchs.

       Weeks’s testimony described the general workings of the Fuchs website called

“NationPharmacy.com.” He testified he established this website at Fuchs’s behest as a

means of providing prescription and non-prescription drugs over the internet. I Trial

Transcript at 20-21. Weeks also testified that only those orders for prescription drugs that

were specifically approved by Nelson were processed. Id. at 33. And he testified that he


                                            -5-
provided Nelson the means to review and approve prescription drug requests by means of

a unique user name and password that enabled Nelson to access the medical history

questionnaires required to be filled out by all customers who requested prescription drugs.

Id. at 30.

       Shadid and Thompson testified at trial as to Nelson’s personal participation in this

scheme. Both men were pharmacists at Main Street Pharmacy, which processed all

orders taken through the “NationPharmacy.com.” Id. at 55, 100. And both testified that

on numerous occasions, Nelson would personally come to Main Street Pharmacy to sign

prescriptions authorizing the dispensing of hydrocodone. Id. at 62-63, 105. Both also

testified that Nelson signed “thousands” of prescriptions for “NationPharmacy.com.” Id.

at 66, 105. Finally, Dupes testified that she transferred money, a total of $175,000, from

an account controlled by Fuchs to an offshore account controlled by Nelson. II Trial

Transcript at 345.

       This evidence describes a scheme that depended upon the participation of Nelson.

Without his approval, requests for controlled prescription drugs taken on the website

would not even be processed. Without his signature, those requests that were processed

would not have been filled. And, in return for his efforts, Nelson was paid a total of

$175,000 that was wired to an offshore account. Given the “concert of action” between

Nelson and Fuchs in the “common purpose” of operating NationPharmacy.com, a

reasonable jury could infer the existence of “an agreement constituting a conspiracy.”


                                            -6-
Johnson, 42 F.3d at 1319. Therefore, the government did present sufficient

circumstantial evidence of conspiracy to render the lack of direct evidence immaterial.

       Accordingly, we hold that a rational jury could find beyond a reasonable doubt that

Nelson participated in a conspiracy to distribute controlled prescription drugs outside the

usual course of professional practice and to launder the proceeds of that distribution.



                                                B

                                      The jury instruction

                      We review the district court's refusal to give a particular
              jury instruction for abuse of discretion. In assessing whether the
              court properly exercised that discretion, a reviewing court must
              examine the instructions as a whole to determine if they
              sufficiently cover the issues in the case and focus on the facts
              presented by the evidence. The question of whether the jury was
              properly instructed is a question of law, and thus, our review is
              de novo.

                      We consider all the jury heard and, from [the] standpoint
              of the jury, decide not whether the charge was faultless in every
              particular but whether the jury was misled in any way and
              whether it had understanding of the issues and its duty to
              determine these issues. We will reverse a conviction due to an
              erroneous instruction only if the error was prejudicial when
              viewed in light of the entire record.

United States v. Voss, 82 F.3d 1521, 1529 (10th Cir. 1996) (quotation marks and citations

omitted) (alterations in original).

       At trial, the district court instructed the jury that it could convict Nelson for conspiracy

to distribute controlled prescription drugs outside the usual course of professional practice

                                               -7-
if it found Nelson had agreed with another to distribute controlled prescription drugs outside

the usual course of medical practice or without legitimate medical purpose. For example,

the trial judge gave an instruction on the elements of Count 1 which, in pertinent part, said:

                     COUNT 1: CONSPIRACY TO DISTRIBUTE
             CONTROLLED SUBSTANCES – ESSENTIAL ELEMENTS
               In order for the Defendant . . . to be found guilty of the crime charged
       in Count 1 of the Indictment, i.e., conspiracy to distribute prescription drugs
       that are controlled substances outside the usual course of medical practice or
       without a legitimate medical purpose, the government must prove the
       following four elements beyond a reasonable doubt:

       .....

              In order for the Defendant to be found guilty on Count 1, the
       Government must prove that the Defendant knowingly and deliberately arrived
       at some type of agreement and understanding with another that they would
       distribute prescription drugs outside the usual course of medical practice or
       without legitimate medical purpose . . . .

Document 34 (emphasis added).1 On appeal, Nelson argues this was in error as the

conjunctive, rather than the disjunctive, should have been used, i.e., the jury instructions

should have required the government to prove an agreement with another to distribute

prescription drugs outside the usual course of medical practice and without legitimate

medical purpose.

       In support of his argument, Nelson cites language in United States v. Varma, 691 F.2d

460, 462 (10th Cir. 1982). There, we were presented with an appeal by a doctor who argued

the government failed to present sufficient evidence to prove he illegally distributed

       1
        The instructions were omitted from the original record; they are not numbered. We note
that two other instructions used very similar language.

                                             -8-
prescription drugs. Id. at 461. In finding the evidence sufficient in that case, we said that

the government was required to prove “[t]hat the defendant prescribed the drug without a

legitimate medical purpose and outside the usual course of professional practice.” Id. at 462

(emphasis added) (quoting United States v. Rosen, 582 F.2d 1032, 1033 (5th Cir. 1978)).

Thus, it seems that the district court in the instant case did deviate from the literal wording

in Varma in instructing the jury by using the disjunctive.

       We note initially that there is considerable room to doubt whether this dispute is of

any importance. See, e.g., United States v. Kirk, 584 F.2d 773, 784 (6th Cir. 1978) (citing

authority that “[T]here is no difference in the meanings of the statutory phrase, ‘In the usual

course of professional practice’ and the regulations’ phrase, ‘legitimate medical purpose.’”).

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. When asked at oral argument if the two phrases

were not merely two ways of saying the same thing, appellant’s counsel was unable to

explain satisfactorily how or whether it might make a difference if the jury had been

instructed in the conjunctive as he had requested. Nevertheless, recognizing the limits of our

imagination, we are hesitant to say that it never could make a difference, and we proceed to

consider Nelson’s argument.


                                             -9-
       We conclude that the better view is that there was no error in the instruction. 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.

We base our conclusion on the wording of the governing regulation (21 C.F.R. § 1306.04(a))

and on United States v. Moore, 423 U.S. 122, 124 (1975) (“[R]egistered physicians can be

prosecuted under § 841 when their activities fall outside the usual course of professional

practice.”).

       In reaching this conclusion, we first determine that we are not bound by the language

of Varma, 691 F.2d at 462, on which Nelson relies. The only issue raised in that appeal was

the sufficiency of the evidence. 691 F.2d at 461. Nothing in the analysis or rationale of the

case is dependent on the recitation of the element in question in the conjunctive. We

proceed, then, to determine whether the conjunctive statement contained in defendant

Nelson’s requested instruction is required. We find that it is not.

       We conclude that Moore is controlling on this point. The issue in Moore was whether

a licensed physician who was also registered under the Controlled Substances Act, 21 U.S.C.

§§ 801 et seq., could be prosecuted under section 841 for dispensing or distributing

controlled substances. 423 U.S. at 124. The point now at issue before this court was not the

precise focus of that opinion, so it could be accurately said that what the Court said on the

point is, like our own statement in Varma, not binding here. We do not, however, approach

opinions of the Supreme Court with a view to reaching the narrowest construction possible.


                                            - 10 -
Instead, we have said that “this court considers itself bound by Supreme Court dicta almost

as firmly as by the Court’s outright holdings, particularly when the dicta is recent and not

enfeebled by later statements.” Gaylor v. United States, 74 F.3d 214, 217 (10th Cir. 1996).

Although the 1975 Moore opinion is not particularly “recent” (which is of course a relative

term), we believe it cannot be disregarded because of the careful analysis reflected in the

opinion. The Court there expressed its holding as being that “registered physicians can be

prosecuted under § 841 when their activities fall outside the usual course of professional

practice.” 423 U.S. at 124 (emphasis added).

       One of the issues raised by the defendant physician in Moore was whether a physician

who was registered under the Controlled Substances Act, and thus authorized to prescribe

a Schedule II controlled substance, could be prosecuted under 21 U.S.C. § 841 for

prescribing such a substance under any circumstances. The physician argued that registered

physicians could be prosecuted only under other provisions of the Controlled Substances Act,

unlike the usual defendant charged with unlawful distribution in violation of the Act. The

defendant physician also argued that he could not be prosecuted under section 841, even if

registrants were not universally exempt, because the charged conduct was authorized under

the Act. Id. at 138. In rejecting these contentions (and particularly the second, which is the

subject of Part III of the opinion), the Court repeatedly referred to the concept that a

physician could be prosecuted if his activities were outside the course of practice. For

example, the Court noted that under the Harrison Act, which the Controlled Substances Act


                                            - 11 -
had replaced, “physicians who departed from the usual course of medical practice were

subject to the same penalties as street pushers” and that Congress had intended the Controlled

Substances Act to be more, not less, strict. Id. at 139.2

         In sum, the Court’s dicta in Moore was repeated several times and was closely

connected to the Court’s analysis of the issues raised. We therefore are convinced that

Moore is controlling on the issue in this appeal. We also note that another circuit appears to

read Moore as we do. See United States v. Cuong, 18 F.3d 1132, 1137-38, 1141 (4th Cir.

1994).

         If we did not regard the Moore dictum as controlling, we would still reach the same

result based on analysis of the statutes and the applicable regulation. Nelson was charged

under the relevant conspiracy statute, 21 U.S.C. § 846, with committing the substantive

offense proscribed under 21 U.S.C. § 841(a)(1): “Except as authorized by this subchapter,

it shall be unlawful for any person knowingly or intentionally to . . . distribute[] or dispense[]

a controlled substance . . . .” In turn, 21 U.S.C. § 822(b) authorizes practitioners to dispense

controlled substances “to the extent authorized by their registration and in conformity with

the other provisions of this subchapter.”



         Dictum in one of our earlier cases, United States v. Bartee, 479 F.2d 484, 488 (10th Cir.
         2

1973) (“when a medical practitioner issues a prescription which is not for a legitimate medical
purpose and is not in the usual course of his professional practice, then he does violate the
statute”) (emphasis added; original emphasis omitted), which was followed in United States v.
Jobe, 487 F.2d 268, 269 (10th Cir. 1973), would have supported the argument of defendant in the
instant case, but we think that Moore effectively, although implicitly, overruled those cases to the
extent that they could be said to have been controlling in the first place.

                                               - 12 -
       The exact extent of the authorization is described in 21 C.F.R. § 1306.04(a): “A

prescription for a controlled substance to be effective must be issued for a legitimate medical

purpose by an individual practitioner acting in the usual course of his professional practice.”

In other words, a practitioner is authorized to dispense controlled substances only if he acts

with a legitimate medical purpose and in the usual course of professional practice.

Conversely, a practitioner would be unauthorized to dispense a controlled substance if he acts

without a legitimate medical purpose or outside the usual course of professional practice.

       We hold that the instruction in the instant case correctly stated the law, based on our

reading of Moore and the inference that necessarily follows from the wording of the

applicable regulation.

                                             III

                                         Conclusion

       For the reasons detailed above, we hold that the government presented sufficient

evidence from which a reasonable jury could find beyond a reasonable doubt that Nelson

participated in a conspiracy to distribute prescription drugs outside the usual course of

professional practice and to launder the proceeds of that distribution. We also hold that

the jury instruction as to the conspiracy to distribute count of the indictment was not

erroneous.

       Accordingly, we AFFIRM Nelson’s conviction.




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