Submitted March 6, 2018 [*] Pasadena, California
from the United States District Court for the Central
District of California Dean D. Pregerson, District Judge,
Presiding D.C. No. 2:11-cr-00922-DDP-6
Michael R. Belter (argued), Salinas, California, for
J. Davis, Assistant United States Attorney, Major Frauds
Section; Lawrence S. Middleton, Chief, Criminal Division;
United States Attorney's Office, Los Angeles, California;
Before: Ronald M. Gould and Mary H. Murguia, Circuit Judges,
and Dana L. Christensen, [**] Chief District Judge.
panel affirmed a conviction for conspiracy to distribute
controlled substances in violation of 21 U.S.C. § 846,
in a case in which the government offered evidence that the
defendant and his co-conspirators had abused their positions
as healthcare providers by intentionally prescribing
OxyContin for no legitimate medical purpose as part of a
scheme to sell the drug on the street.
panel held that the evidence was sufficient to allow a
reasonable jury to draw the inference that the defendant was
prescribing OxyContin with the intent to do so for no
legitimate purpose, and was sufficient to lead a reasonable
jury to conclude that the defendant had agreed to further the
scheme to illicitly distribute OxyContin.
panel also held that there is no error in the remedies the
trial court crafted for the government's late disclosures
or in the jury instructions the court gave regarding the
abrupt departure of two co-defendants from the trial and the
dismissal of charges against a third co-defendant.
jury trial, David James Garrison was convicted of conspiracy
to distribute controlled substances in violation of 21 U.S.C.
§ 846. During trial, the government offered evidence
that Garrison and his co-conspirators had abused their
positions as healthcare providers by intentionally
prescribing OxyContin, a powerful opioid pain reliever, for
no legitimate medical purpose as part of a scheme to sell the
drug on the street. Garrison appeals his conviction, arguing
(1) that there was insufficient evidence to support his
conviction, and (2) that the district court should have
dismissed the charges against him, acquitted him, or granted
him a mistrial because the government did not timely disclose
certain information. We affirm.
is now an epic crisis of deadly opioid abuse and overuse. In
2016, roughly 11.5 million people in the United States
misused prescription opioids. U.S. Dep't of Health and
Human Services, About the U.S. Opioid Epidemic
(2018), https://www.hhs.gov/opioids/about-the-epidemic/ (last
visited March 8, 2018). That same year, 116 people on average
died every day from opioid-related drug overdoses.
Id. And in 2017, the Acting Secretary of Health and
Human Services declared the national opioid abuse epidemic a
public health emergency. U.S. Dep't of Health and Human
Services, HHS Acting Secretary Declares Public Health
Emergency to Address National Opioid Crisis (2017),
(last visited March 8, 2018).
midst of this crisis, we trust doctors and healthcare
professionals to be conscientious gatekeepers to these
dangerous and potentially fatal drugs. But unfortunately some
medical professionals betray their duty to do no harm as
healthcare providers and abuse their prescription pads. This
is exactly what happened at the Lake Medical Group clinic
(the "Clinic"), where Garrison worked as a licensed
physician's assistant from summer 2009 until the Clinic
was closed in February 2010.
Clinic was what is often described as a "pill mill,
" and the activities of people working there led to the
illicit street-sale of more than a million maximum-strength
OxyContin tablets. From August 2008 to September 2010, the
Clinic generated 13, 207 prescriptions for OxyContin- all but
six of which were for the drug's maximum dosage. The
Clinic employed "patient recruiters" who induced
people living in homeless shelters and rescue missions to
visit the Clinic. These of course were not true
"patients" in the ordinary sense of that word. The
Clinic would then use the names and Medicare or Medi-Cal
cards of the recruited patients to generate fraudulent
OxyContin prescriptions. The recruited patients did not
retain the OxyContin that they were prescribed. Instead,
people working for the Clinic retrieved the drug from
participating pharmacists or from the recruited patients, and
the Clinic operators then had the pills sold illegally. The
government learned of the Clinic's operations and took
steps to shut the Clinic down and prosecute those it believed
responsible for the scheme.
September 28, 2011, Garrison and eleven other codefendants
were indicted. Garrison was indicted for conspiracy to
distribute controlled substances in violation of 21 U.S.C.
§ 846, based on his alleged role in the conspiracy to
distribute OxyContin for no legitimate medical
purpose.A second superseding indictment was filed,
and the case proceeded to trial. Garrison was tried with four
alleged co-conspirators: Elza Budagova, who acted as a
medical assistant at the Clinic, and pharmacists Theodore
Yoon, Phic Lim, and Perry Tan Nguyen.
expert testified that there were indications from the
Clinic's medical files that the prescriptions from the
Clinic were not for a proper medical purpose. Many files had
minimal patient histories and in other files the patient
histories were virtually identical, indicating that they had
been forged. Further, there was expert testimony that