United States v. Saad Sakkal, M.D. ( 2022 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 22a0083n.06
No. 20-3880
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
) Feb 24, 2022
UNITED STATES OF AMERICA, DEBORAH S. HUNT, Clerk
)
)
Plaintiff-Appellee,
)
ON APPEAL FROM THE
v. )
UNITED STATES DISTRICT
)
COURT FOR THE
)
SAAD SAKKAL, M.D., SOUTHERN DISTRICT OF
)
OHIO
)
Defendant-Appellant.
)
Before: ROGERS, STRANCH, and DONALD, Circuit Judges.
ROGERS, Circuit Judge.
As a physician at Lindenwald Medical Association, defendant Saad Sakkal prescribed
various controlled substances to help patients manage pain. Following a Drug Enforcement
Administration investigation, a grand jury indicted Sakkal on thirty-nine counts related to the
illegal distribution of controlled substances, which included two charges of illegal distribution that
resulted in death. Sakkal was arrested, and the district court ordered that Sakkal be held without
pretrial bond. After trial, the jury convicted Sakkal on all counts except for one death count and
one count of using another person’s registration number to prescribe controlled substances. Sakkal
moved for a new trial and retained new counsel, who raised a claim of ineffective assistance of the
previous trial counsel. Following a hearing on the question of whether previous counsel was
ineffective, the district court denied Sakkal’s motion. On appeal, Sakkal argues that (1) the trial
No. 20-3880, United States v. Sakkal
court improperly denied him bail; (2) the evidence was not sufficient to conclude that Sakkal’s
distribution of controlled substances caused a person’s death; and (3) Sakkal received ineffective
assistance of counsel at the plea-bargaining stage and during trial. None of these arguments
warrants reversal.
Saad Sakkal practiced medicine at Lindenwald Medical Association from February 2015
to December 2016. Sakkal was licensed to practice medicine in Ohio and also had a DEA
registration number to dispense Schedule II through Schedule V controlled substances. The DEA
began investigating Sakkal’s prescription practices after a referral from the Ohio Medical Board,
which had received several phone calls from pharmacists about Sakkal issuing problematic
prescriptions.
In June 2018, a grand jury returned a thirty-nine-count indictment against Sakkal: thirty
counts of illegal distribution of a controlled substance in violation of 21 U.S.C. § 841(a)(1); two
counts of distribution of a controlled substance that resulted in death in violation of 21 U.S.C.
§ 841(b)(1)(C); and seven counts of using the registration number of another to dispense a
controlled substance in violation of 21 U.S.C. § 843(a)(2). The magistrate judge initially ordered
a $250,000 bond. The Government appealed the magistrate judge’s order, and the district court
overruled the magistrate judge’s determination and ordered the U.S. Marshals Service to place
Sakkal in custody without bond.
At trial, the Government introduced testimony that Sakkal utilized several dangerous
prescription methods. The Government’s expert, Dr. Timothy King, testified that Sakkal was
prescribing multiple substances that served the same purpose and that this “therapeutic
duplication” risked “significant adverse effects, including respiratory sedation and death.” Sakkal
also prescribed several dangerous combinations of controlled substances, including:
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(1) amphetamines and opioids; (2) methadone with a benzodiazepine and an amphetamine; and
(3) opioids with a benzodiazepine and a muscle relaxant, Soma. Finally, Sakkal sometimes
prescribed high amounts of controlled substances.
The Government also presented testimony that Sakkal ignored warning signs about the
danger of his prescription practices. Employees at Lindenwald administered drug screens to
determine if patients were taking their controlled substances as prescribed and to evaluate whether
the patient was also taking illegal controlled substances. These drug screens operate as an
objective method to ensure that controlled-substance prescriptions do not contribute to a risk of
overdose or maintenance of an addiction. Sakkal’s records indicated that his patients’ drug screens
sometimes revealed that patients were taking unprescribed controlled substances or were not
taking prescribed controlled substances. Sakkal’s records never showed that he discharged or
disciplined a patient because of the concerning drug screens.
Sakkal also failed to use the Ohio Automated Rx Reporting System (OARRS) to monitor
his patients’ prescriptions for controlled substances. This system is designed to log all of a
patient’s controlled-substance prescriptions that are filled or dispensed in Ohio. This allows a
physician to ensure that patients have not already received a prescription for their ailments and to
confirm that patients have not been doctor shopping to obtain controlled substances. Even when
other Lindenwald employees provided Sakkal with OARRS reports for his patients, he did not
review the reports.
Several pharmacies became aware of Sakkal’s prescription practices and began calling
Lindenwald to discuss concerns about these practices. Sakkal met with at least three pharmacies
to discuss these concerns, but he did not change his prescribing practices. Some pharmacies
decided to stop filling Sakkal’s prescriptions for controlled substances.
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In addition to charging Sakkal with illegal distribution of controlled substances, the
indictment charged Sakkal with two counts of illegally distributing controlled substances that
resulted in a patient’s death. One of these patients, Ashley Adkins, visited Sakkal for the first time
in December 2015. After Sakkal conducted an examination in “medical student type fashion,” he
prescribed seventeen medications for Adkins, including a “fairly high dose” of a benzodiazepine
and a muscle relaxant. On January 18, 2016, an anonymous caller reported to Lindenwald that
Adkins was abusing her medications and looking to sell or trade them. That same day, Adkins
returned for a second appointment and reported having anxiety and pain. Her medical record from
that day states: “She appears to be under the influence of either drugs or alcohol. Her speech is
very slurred, her balance is off.” Despite these concerning signs, Sakkal prescribed Adkins another
benzodiazepine and a low dose of oxycodone.
Following the appointment, Adkins went with her living companion, Chris Norvell, to fill
her prescriptions. The two spent time together afterwards, and Adkins passed away during the
night while Norvell was asleep. When Norvell woke up, he realized that Adkins had died and
noticed that half the bottle of oxycodone was gone. A coroner performed an autopsy and
concluded that Adkins died of benzodiazepine and oxycodone toxicity. The autopsy did not locate
any fentanyl, cocaine, or marijuana in Adkins’s blood. The toxicology report indicated that
Adkins’s benzodiazepine and oxycodone levels were outside the therapeutic ranges. On cross
examination, however, King acknowledged that Adkins would have had appropriate levels of
benzodiazepine and oxycodone in her system if she had taken Sakkal’s prescriptions as directed.
The jury convicted Sakkal of thirty counts of illegally distributing a controlled substance,
the death count involving Adkins, and six counts of using the registration number of another to
dispense a controlled substance. Sakkal’s counsel filed a motion for a new trial, and Sakkal hired
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separate counsel to file supplements to the motion, asserting that Sakkal received ineffective
assistance of trial counsel. Sakkal argued that his trial counsel, among other things, provided
ineffective assistance during the plea-bargaining process and by deciding not to call an expert
witness. The district court held an evidentiary hearing on the motion for a new trial. At the
hearing, Sakkal’s trial counsel testified about his advice regarding the plea offer and the strategy
behind his decision not to call an expert witness. The district court denied Sakkal’s motion for a
new trial, reasoning that trial counsel’s recommendation to “seriously consider” accepting the plea
offer was competent advice. The district court also concluded that Sakkal’s trial counsel
“conducted a reasonable examination” into the viability of calling expert witnesses in Sakkal’s
defense and that this strategy did not amount to ineffective assistance of counsel. In the alternative,
the district court concluded that Sakkal had not shown he was prejudiced by the alleged ineffective
assistance of counsel. Sakkal timely filed his notice of appeal.
Sakkal first argues that the district judge failed to grant him reasonable bail pursuant to
18 U.S.C. § 3142(f) and that the failure to give him reasonable bail violated his rights under the
Sixth and Eighth Amendments. This claim fails because Sakkal’s subsequent conviction and
sentencing render his pre-trial detention claims moot.1 Constitutional claims and 18 U.S.C. § 3142claims to pretrial bail become moot once the defendant is convicted. United States v. Manthey, 92
F. App’x 291, 297 (6th Cir. 2004) (citing Murphy v. Hunt, 455 U.S. 478, 481 (1982))
(constitutional claims); United States v. Mattice, No. 17-4276, 2018 WL 2945942, at *1 (6th Cir.
1
To the extent that Sakkal argues that his detention prevented him from effectively communicating
with his counsel to prepare his defense, the district court did not consider this ineffective-
assistance-of-counsel claim in the post-trial evidentiary hearing or in its order denying the motion
for a new trial. This court generally does not consider an ineffective-assistance-of-counsel claim
on direct appeal where there has not been an opportunity to develop an adequate record for review,
United States v. Williams, 612 F.3d 500, 508 (6th Cir. 2010), and we therefore decline to review
this claim on direct appeal.
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June 11, 2018) (18 U.S.C. § 3142 claims); see also United States v. Lyle, 793 F.2d 1294, at *2 (6th
Cir. 1986) (table). Once Sakkal was convicted on thirty-seven counts in the indictment, his claims
concerning pretrial detention became moot because he was credited for the time he spent in
detention.
Sakkal next asserts that the evidence presented during trial was insufficient to establish that
he caused Adkins’s death. The Government presented ample evidence, however, that the
benzodiazepine and oxycodone prescribed by Sakkal were the but-for cause of Adkins’s death,
and this evidence was sufficient for the jury to convict Sakkal of the death count related to Adkins.
As Sakkal concedes in his opening brief, Adkins filled her prescriptions from Sakkal on the day
she died, and she took half of the bottle of oxycodone within a four-to-five-hour period the night
she died. The coroner testified that Adkins had no fentanyl, cocaine, or marijuana in her system
and that Adkins died from “both oxycodone and benzodiazepine toxicity.” The Controlled
Substances Act provides an enhanced penalty where “death or injury results from the use of” a
controlled substance distributed in violation of 21 U.S.C. § 841(a)(1). United States v. Jeffries,
958 F.3d 517, 519 (6th Cir. 2020) (quoting 21 U.S.C. § 841(b)(1)(C)). To establish that a
“physician violates the CSA in a manner that leads to the death of a patient,” the “use of the drug
must have been a but-for cause of the victim’s death,” United States v. Volkman, 797 F.3d 377,
392 (6th Cir. 2015), and such causation “exists where use of the controlled substance ‘combines
with other factors to produce’ death, and death would not have occurred ‘without the incremental
effect’ of the controlled substance,” id. (quoting Burrage v. United States, 571 U.S. 204, 211
(2014)). Construing the Government’s evidence in the light most favorable to the Government,
United States v. Williams, 998 F.3d 716, 727 (6th Cir. 2021), a rational trier-of-fact could conclude
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that Adkins would not have died without the use of the oxycodone and benzodiazepine prescribed
by Sakkal.
Sakkal argues that he did not cause Adkins’s death because, if Adkins had taken the
benzodiazepine and oxycodone as Sakkal directed, she would not have died. But the causal
relationship required to apply the penalty enhancement in 21 U.S.C. § 841(b)(1)(C) is “between
the decedent’s use of the controlled substance and the resultant death.” Jeffries, 958 F.3d at 520.
Thus, “[t]he question under this statute’s language is whether death resulted from use of the
controlled substance—not whether death was a foreseeable result of the defendant’s § 841(a)(1)
violation.” Id. at 520–21. The enhancement therefore does not require the Government to prove
that Sakkal directed Adkins to ingest lethal amounts of the controlled substances; rather, the
Government satisfied its burden by demonstrating that Adkins died from ingesting the controlled
substances Sakkal prescribed to her.
Sakkal contends that the but-for causation requirement for the § 841(b)(1)(C) penalty
enhancement would put “every practicing physician in the United States at considerable risk.” But
this assertion fails to recognize that the Government must also prove, as it did here, that a physician
distributed controlled substances without any legitimate medical purpose in violation of
§ 841(a)(1) in order to hold a physician criminally liable for a patient’s overdose death.
In his reply brief, Sakkal argues for the first time that the evidence was insufficient for the
jury to conclude that he prescribed controlled substances to Adkins without a legitimate medical
purpose. But “an appellant abandons all issues not raised and argued in its initial brief on appeal.”
Bard v. Brown Cnty., 970 F.3d 738, 751 (6th Cir. 2020) (quoting United States v. Johnson, 440
F.3d 832, 845–46 (6th Cir. 2006)). We have consistently refused to review arguments raised for
the first time in a reply brief on appeal because the Government has not had an opportunity to
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respond to the arguments. United States v. Adams, 598 F. App’x 425, 429 (6th Cir. 2015) (citing
United States v. Campbell, 279 F.3d 392, 401 (6th Cir. 2002)). We therefore decline to review
this sufficiency-of-the-evidence claim raised for the first time in his reply brief.
Sakkal next raises several ineffective-assistance-of-counsel claims on direct appeal. This
court generally does not entertain ineffective-assistance-of-counsel claims on direct appeal
because there has not been an opportunity to develop an adequate record to evaluate the merits of
the allegations. United States v. Williams, 612 F.3d 500, 508 (6th Cir. 2010). “Such claims ‘are
more properly available in a post-conviction proceeding under 28 U.S.C. § 2255, after the parties
have had the opportunity to develop an adequate record on the issue from which the reviewing
court is capable of arriving at an informed decision.’” Id. (quoting United States v. Rahal, 191 F.3d
642, 645 (6th Cir. 1999)). Only two of Sakkal’s claims are properly presented for review, the
district court having developed a record below on those two issues by holding a hearing and
evaluating Sakkal’s arguments. Accordingly, we review Sakkal’s two ineffective-assistance-of-
counsel claims for which there is an adequate record for review, and we decline to review Sakkal’s
remaining ineffective-assistance-of-counsel claims on direct appeal.2
First, Sakkal contends that his trial counsel’s actions during the plea-bargaining process
amounted to ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668(1984). Sakkal fails to establish this claim because he does not show that his counsel’s advice
2
To be clear, the claims we decline to review include: Sakkal received ineffective assistance of
counsel because he could not communicate with his counsel while detained to prepare his defense;
Sakkal’s counsel did not file any motions in limine concerning the DEA phone call or the limits
of Dr. King’s testimony; Sakkal’s counsel did not object to testimony by the computer
programmer; Sakkal’s counsel did not object to testimony by a pharmacist; Sakkal’s counsel did
not object to a witness’s testimony about an uncharged death; Sakkal’s counsel did not object to
the testimony of a former employee’s opinion; and Sakkal’s counsel did not object to the jury
instructions about the necessary intent required to convict Sakkal.
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constituted deficient performance. In determining that Sakkal’s trial counsel gave competent
advice about whether to accept the plea offer, the district court credited the testimony of Sakkal’s
counsel that, shortly before the trial began, he discussed the terms of the plea bargain with Sakkal
and told him to “seriously consider taking the plea offer” because it was substantially below the
minimum term Sakkal faced if convicted on the death counts. Sakkal’s counsel explained that
Sakkal would likely have to serve only a short term of imprisonment under the plea offer because
of the time he had already served in pretrial detention and the opportunities he would have with
the Bureau of Prison to receive good-credit time and to serve the final six months of his term in a
halfway house. Reviewing these factual findings for clear error, Logan v. United States, 910 F.3d
864, 868 (6th Cir. 2018) (citing Guerrero v. United States, 383 F.3d 409, 414 (6th Cir. 2004)), the
district court did not clearly err in crediting the testimony of Sakkal’s previous trial counsel.
Sakkal must show that this performance by his counsel was deficient and that he suffered prejudice
because of the deficiency to succeed on his ineffective-assistance-of-counsel claim. Strickland,
466 U.S. at 687.
Sakkal argues that his counsel’s recommendation was insufficient because it came after
months “of insincere assessments of his chances at trial and unreal expectations of an ‘acquittal’
and ‘exoneration’ when no actual preparations for success were being made by” his counsel. But
the district court correctly noted that, in a previous hypothetical discussion between Sakkal and
his trial counsel, Sakkal stated that he did not want to take a three-year plea offer because he
thought he was innocent. And “[t]he decision to plead guilty—first, last, and always—rests with
the defendant.” Smith v. United States, 348 F.3d 545, 552 (6th Cir. 2003). Although Sakkal is
entitled to effective assistance of counsel once the Government offered him a plea bargain, Logan,
910 F.3d at 871 (quoting Lafler v. Cooper, 566 U.S. 156, 168 (2012)), Sakkal has not shown that
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his counsel’s recommendation that Sakkal “seriously consider” the plea offer amounted to
deficient performance in light of Sakkal’s previous hesitancy to consider a three-year plea deal.
Second, regarding his trial, Sakkal arguably renews his claim from below that his counsel’s
trial strategy not to call an expert witness amounted to ineffective assistance of counsel. See
Appellant’s Brief at 55–56. But Sakkal fails to show that his trial counsel’s performance was
deficient. As the district court noted, Sakkal’s trial counsel testified that he decided not to call an
expert after he consulted with two potential experts. One of these experts informed Sakkal’s
counsel that a battle-of-the-experts strategy had been unsuccessful in other cases and that “in his
opinion, there would not be an expert that would be able to testify” for Sakkal and defend his
prescribing practices. Sakkal’s counsel therefore decided that the best strategy would be to argue
that Sakkal prescribed the medications in good faith and lacked the necessary criminal intent. To
succeed on his claim, Sakkal must “overcome the presumption that, under the circumstances, the
challenged action ‘might be considered sound trial strategy.’”3 Stojetz v. Ishee, 892 F.3d 175, 193
(6th Cir. 2018) (quoting Strickland, 466 U.S. at 689). Sakkal does not present any other evidence
that his counsel’s trial strategy was deficient. In the absence of deficient performance by Sakkal’s
counsel on either ineffective-assistance-of-counsel claim, these claims are without merit, and we
need not address the district court’s alternative conclusions that Sakkal failed to establish prejudice
for either claim.
3
In his reply brief, Sakkal appears to imply, in his argument about the causation issue, that the
expert-witness decision was deficient because his counsel should have called him to testify and
explain his treatment protocols to rebut the Government’s evidence. But we do not consider
arguments raised for the first time in a reply brief, Bard, 970 F.3d at 751, and Sakkal therefore
forfeits this argument. In any event, the district court correctly noted that Sakkal’s counsel decided
not to call Sakkal as a witness because he believed Sakkal had lied to him and that the Government
could discredit his testimony on cross examination. Sakkal does not explain how this tactical
decision about his credibility would amount to deficient performance.
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For the foregoing reasons, we affirm the judgment of conviction and the district court’s
judgment with regard to two of Sakkal’s ineffective-assistance-of-counsel claims.
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