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United States v. Garrison

United States Court of Appeals, Ninth Circuit

April 25, 2018

United States of America, Plaintiff-Appellee,
v.
David James Garrison, Defendant-Appellant.

          Submitted March 6, 2018 [*] Pasadena, California

          Appeal 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 Defendant-Appellant.

          Angela J. Davis, Assistant United States Attorney, Major Frauds Section; Lawrence S. Middleton, Chief, Criminal Division; United States Attorney's Office, Los Angeles, California; for Plaintiff-Appellee.

          Before: Ronald M. Gould and Mary H. Murguia, Circuit Judges, and Dana L. Christensen, [**] Chief District Judge.

         SUMMARY [***]

         Criminal Law

         The 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.

         The 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.

         The 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.

          OPINION

          GOULD, CIRCUIT JUDGE.

         After a 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.

         I

         There 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), https://www.hhs.gov/about/news/2017/10/26/hhs-acting-secretary-declares-public-health-emergency-address-national-opioid-crisis.html (last visited March 8, 2018).

         In the 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.

         The 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.

         A

         On 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.[1]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.

         An 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 ...


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