United States v. Celio , 230 F. App'x 818 ( 2007 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
April 30, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee, No. 05-1330
v. (D. Colorado)
A LBER T C ELIO , (D.C. No. 01-CR-165 EW N)
Defendant-Appellant.
OR D ER AND JUDGM ENT *
Before M U RPH Y, A ND ER SO N, and O’BRIEN, Circuit Judges.
I. IN TR OD UC TIO N
Defendant-Appellant Albert Celio, a D octor of Osteopathy licensed in
Colorado, was convicted by a jury on four counts of dispensing and distributing a
controlled substance in violation of the Controlled Substances Act, 21 U.S.C.
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
§ 841(a)(1) and (b)(1)(C). Celio’s convictions arose from four prescriptions for
Percocet, a Schedule II narcotic, written for an undercover police officer posing
as a patient. On appeal, Celio challenges his convictions on four grounds: (1) the
evidence presented to the jury provided an insufficient basis for his conviction;
(2) the district court failed to instruct the jury that it had to find Celio
“knowingly” acted outside the scope of medical practice or w ithout a legitimate
medical purpose; (3) the district court abused its discretion in denying Celio’s
motions for a mistrial based on alleged discovery violations; and (4) prosecutorial
misconduct interfered with Celio’s right to a fair trial. Exercising jurisdiction
pursuant to 28 U.S.C. § 1291, this court rejects each of Celio’s arguments and
affirm s his convictions.
II. B AC KGR OU N D
According to evidence introduced at trial, the Drug Enforcement Agency
(“DEA”) began investigating Steve Compton, a friend and patient of Celio, for
violating federal controlled substance law s. Compton had been officially
dismissed from Celio’s practice at the All Family Health Care Clinic after
Compton obtained one of Celio’s prescription pads and began writing himself
prescriptions for Lorcet, a Schedule III narcotic. Celio, however, continued to see
Compton after hours and maintained contact with him. The DEA’s investigation
of Compton led to an investigation of Celio, using Compton as a “cooperating
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source.” The Federal Bureau of Investigation (“FBI”) was also involved in the
DEA’s investigation.
On M ay 11, 2000, Compton, working with the DEA, called Celio and said
that a friend, “Robert Logan,” needed a prescription for pain medication, but
could not come in to see Celio. Compton told Celio “Logan” would give him
$1000 if Celio would call in a prescription. Celio refused and said he needed to
examine “Logan” in person before writing any prescriptions.
On M ay 18, undercover Denver police officer Roger Hogan, posing as
“Robert Logan,” visited Celio’s office. He told Celio he needed Percocet for
knee pain associated w ith an old football injury. Hogan told Celio he had last
received a prescription from a doctor in Texas two weeks prior and that he had
been taking one pill per day. Although Celio advised Hogan of other treatments
for knee pain and urged him to get an x-ray, Celio wrote Hogan a prescription for
thirty Percocet pills, mentioning several times that Percocet is a Schedule II
narcotic that can attract notice when prescribed in high quantities.
A week later, on M ay 25, Hogan accompanied Compton to a lunch meeting
Compton had arranged with Celio at a local establishment called the Sports Café.
As pre-arranged with Hogan, Compton excused himself midway through the
meeting. During Compton’s absence, Hogan told Celio he needed a doctor he
could “depend on.” Hogan said Percocet worked well for him when he
“part[ied]” and asked for three more prescriptions, mentioning that he would
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share some of the pills with his girlfriend, Kimmy, and others in Dallas during an
upcoming trip. Celio warned Hogan that the prescriptions “ha[d] to be limited in
. . . volume” and couldn’t be “over blatant.” He also told Hogan he did not want
the Percocet he prescribed to be shared with Compton. Hogan mentioned to Celio
that he felt uncomfortable in the All Family Health Care Clinic itself, and asked
to meet Celio outside the clinic to get “a couple month’s worth” of renewal
prescriptions. Celio and Hogan arranged to meet in the clinic parking lot later
that same afternoon. Celio suggested Hogan page him with a “7” at the end of
Hogan’s phone number when he arrived. During this conversation, Hogan
repeatedly mentioned to Celio he had $2000 that Celio could use for stock
investments, which had been a topic of conversation between Compton and Celio
earlier in the meeting.
Celio and Hogan met in the clinic parking lot about forty-five minutes after
leaving the Sports Café. Although Hogan had only complained to Celio about
knee pain, Celio told H ogan he w ould record the prescriptions on his clinic chart
as treatment for degenerative joints and migraines. Celio then said, “You get
headaches, I imagine. That’s legit for this.” Celio told Hogan not to get “carried
aw ay” because he could not “do more than . . . fifty in twelve days.” He
instructed Hogan, “[a] hundred a month is a good scenario,” and indicated he
could not go “beyond . . . a hundred a month.” W hen Hogan said he would use
the pills for partying and planned to share some with his girlfriend, Celio said
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nothing to discourage Hogan from sharing the pills, but did say that all the
prescriptions had to be in Hogan’s name.
Celio ultimately wrote Hogan four prescriptions for Percocet. One
prescription was dated M ay 25, and the others were postdated for June 1, June 15,
and June 30. The first, third, and fourth prescriptions were for fifty pills each,
while the second prescription was for sixty pills to accommodate H ogan’s desire
to share the pills with his girlfriend. W hen Celio documented these prescriptions
on Hogan’s chart, however, the prescription dates, quantities, and strengths did
not match those on the prescriptions themselves. Toward the end of the M ay 25
parking lot meeting, Hogan gave Celio $2000 for the prescriptions.
Hogan had no further contact with Celio for almost two months. During
two meetings in mid-July 2000, Celio indicated he was worried that a federal
investigation of Steve Compton could lead back to him and, according to Hogan,
told Hogan he could not write any more Percocet prescriptions until things
“quieted down.” The DEA and FBI continued to investigate C elio and the All
Fam ily H ealth C are C linic by obtaining information from pharmacies. On
December 11, 2000, federal agents executed a search warrant at the clinic.
Celio was indicted on M ay 5, 2001, for, among other things, dispensing and
distributing a controlled substance in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(C). Of the eight counts on which Celio was initially indicted, four counts
were dismissed. Each of the remaining four counts corresponded with the four
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Percocet prescriptions Celio wrote for H ogan in the clinic parking lot on M ay 25.
At trial, the government called five witnesses: Paul Jaster, a DEA agent involved
in the investigation of Celio; Roger Hogan, the undercover Denver police officer
who posed as the patient “Robert Logan”; Donna Lapetina, the owner and
business manager of the A ll Family Health Care Clinic; Karen Lutz, the clinic’s
receptionist and office manager; and Thomas Gierwatoski, a pharmacist familiar
with Celio. Celio did not present any evidence or witnesses in his own defense,
arguing instead that the evidence w as insufficient to support the charges against
him and theorizing that he was engaged in an honest but misguided “reverse
sting” to see if Hogan was providing pills to Compton. The jury found Celio
guilty on all four counts. He was sentenced to twenty-seven months’
imprisonment, followed by three years’ supervised release.
III. D ISC USSIO N
A. Sufficiency of the Evidence
On appeal, Celio revives the sufficiency of the evidence argument he made
when he moved for a judgment of acquittal at the close of the government’s
evidence. He contends there was insufficient evidence to prove he acted outside
the usual course of medical practice or without a legitimate medical purpose when
he wrote four Percocet prescriptions for “Robert Logan” in the All Family Health
Care Clinic parking lot on M ay 25.
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Rather than explaining how the record evidence is insufficient to support
the jury’s verdict, however, Celio’s argument on appeal focuses on the standard
this court should use to evaluate the sufficiency of the evidence. Celio urges this
court to adopt a rule that, as a matter of law, a defendant’s conviction must be
reversed where “the evidence viewed in the light most favorable to the
prosecution gives equal or nearly equal circumstantial support to a theory of guilt
or innocence.” United States v. Andujar, 49 F.3d 16, 20 (1st Cir. 1995). As the
government indicates in its brief, this court has rejected such a rule. See United
States v. Hooks, 780 F.2d 1526, 1530 (10th Cir. 1986) (rejecting language in
earlier cases “suggest[ing] that a criminal conviction cannot be sustained if a
reasonable hypothesis could be designed which is consistent with innocence”). 1
In review ing the sufficiency of the evidence to support a conviction, this
court reviews the record de novo to determine whether, viewing both the direct
and circumstantial evidence in the light most favorable to the government, a
reasonable jury could have found the defendant guilty beyond a reasonable doubt.
United States v. Nelson, 383 F.3d 1227, 1229 (10th Cir. 2004). Our examination
of the evidence is not piecemeal but, rather, requires “collective inferences to be
drawn from the evidence as a whole.” Id. (quotation omitted). This court does
1
Although a recent Tenth Circuit case employed the language rejected in
Hooks, see United States v. Weidner, 437 F.3d 1023, 1032 (10th Cir. 2006), the
Hooks formulation— adopted repeatedly in our case law over the past two
decades— is the correct standard. Accord United States v. Nelson, 383 F.3d 1227,
1229 (10th Cir. 2004).
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not, however, “weigh conflicting evidence or consider the credibility of
witnesses.” United States v. Patterson, 472 F.3d 767, 778 (10th Cir. 2006).
A thorough review of the record reveals a sufficient evidentiary basis for
the jury’s verdict. The provision of the Controlled Substances Act under which
Celio was convicted makes it “unlaw ful for any person knowingly or intentionally
to manufacture, distribute, or dispense . . . a controlled substance” except as
authorized by the statute. 21 U.S.C. § 841(a)(1). Dispensing a controlled
substance includes “the prescribing . . . of a controlled substance.” Id. § 802(10).
The prescribing of a controlled substance by a physician is “authorized” only
when the physician “acts with a legitimate medical purpose and in the usual
course of professional practice.” Nelson, 383 F.3d at 1233 (citing 21 C.F.R.
§ 1306.04(a)); see also United States v. M oore, 423 U.S. 122, 140 (1975). “[T]he
very facts and circumstances surrounding the issuance of a drug prescription can
support a finding that the prescription was not issued for a legitimate medical
purpose.” United States v. Jamieson, 806 F.2d 949, 951 (10th Cir. 1986). A
good-faith exception protects physicians w ho dispense prescriptions in good faith
in the course of reasonable legitimate medical practice. See, e.g., United States v.
Hurwitz, 459 F.3d 477–78 (4th Cir. 2006) (collecting cases setting forth objective
good-faith standard).
The government’s evidence, particularly the audiotape of the M ay 25, 2000,
parking lot meeting between Celio and Hogan, could have led a reasonable jury to
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find that Celio was not prescribing Percocet for a legitimate medical purpose or in
the ordinary course of professional practice. Both in the parking lot and earlier at
the Sports Café, Hogan provided multiple clues that he intended to use the drugs
for “partying” and that he intended to share the pills w ith his girlfriend. Celio
never inquired as to Hogan’s knee pain or examined Hogan’s knee at any time
after the M ay 18, 2000, office visit, including when writing the four Percocet
prescriptions on M ay 25. Celio indicated the prescriptions could be “legit” for
headaches, which he said he assumed Hogan must get, even though Hogan’s sole
complaint to Celio was about an old knee injury. Additionally, the prescriptions
Celio wrote on M ay 25 were for four pills per day, whereas the prescription
written on M ay 18 was for one pill per day. Finally, during his two encounters
with Hogan on M ay 25, Celio made multiple references to his concern about
triggering DEA scrutiny or, as Celio referred to it, “look-sees.” He indicated he
could not write “high volume” prescriptions that would raise “red flag[s]” and
could not prescribe more than a hundred pills per month for this reason. In
addition to the interactions between Celio and Hogan, the jury also saw exhibits
demonstrating mismatches between the prescriptions Celio wrote for Hogan and
Celio’s notations in Hogan’s chart, and heard testimony from Agent Jaster
regarding government regulations prohibiting the postdating of narcotic
prescriptions. Based on the evidence referenced above as well as other evidence
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adduced at trial, a reasonable jury could easily have found that Celio’s actions fell
outside the bounds of objectively reasonable medical practice.
Rather than disputing the foregoing facts, Celio attempts to justify his
actions by arguing to this court, as he did to the jury, that his actions were part of
a “reverse sting” to see whether Hogan was providing drugs to Compton. Celio
explained to the jury that the “reverse sting” idea grew from his frustration at the
DEA’s apparent lack of progress in investigating Compton’s theft and use of
Celio’s prescription pad to write unauthorized narcotic prescriptions. By finding
Celio guilty, however, the jury implicitly rejected the applicability of the good-
faith defense, as well as Celio’s “reverse sting” theory. For the foregoing
reasons, therefore, this court determines the evidence was sufficient to support the
jury’s verdict and concludes the district court did not err in denying Celio’s
motion for a judgment of acquittal.
B. Jury Instructions
W ith regard to the elements to be proven by the government, the court
instructed the jury:
First, [the government] must prove that the defendant, Albert
Celio, knowingly or intentionally distributed or dispensed the
controlled substance named in the particular count.
Second, [the government] must prove that the defendant,
Albert Celio, in distributing or dispensing the controlled substance,
was acting either outside the usual course of medical practice or
without a legitimate medical purpose.
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The court also instructed the jury that Celio could not be convicted if he acted in
good faith in the course of professional practice. 2 At trial, Celio did not propose
any jury instructions or object to the challenged instruction. On appeal, however,
Celio contends the trial court erred by failing to instruct the jury that, to convict
Celio, it had to find he “knowingly” acted outside the usual course of medical
practice or without a legitimate purpose. He claims the instruction on the
elements lessened the government’s burden of proof and conflicted with the good-
faith instruction. He also suggests the good-faith instruction did not cure this
defect because the instruction failed to inform the jury that it could only convict
Celio if it found he acted in “bad faith.”
Ordinarily, “we review jury instructions as a whole to determine whether
they adequately state the applicable law, and review de novo whether a particular
instruction is proper.” United States v. M cConnel, 464 F.3d 1152, 1158 (10th Cir.
2006). W hen a party fails to raise an objection in the court below, as Celio failed
to do in this case, however, this court reviews the instructions for plain error.
United States v. Teague, 443 F.3d 1310, 1314 (10th Cir. 2006). Under the plain
error standard, Celio’s conviction can be reversed only if the jury instructions
2
As part of the good-faith instruction to Celio’s jury, the court instructed,
“A physician may not be convicted when he dispenses controlled substances in
good faith to patients in the regular course of professional practice.” G ood faith
was defined for the jury as “the honest exercise of good professional judgment as
to a patient’s medical needs. Good faith connotes an observance of conduct in
accordance with what the physician should reasonably believe to be proper
medical practice.”
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contained an “(1) error, (2) that is plain, which (3) affects substantial rights, and
which (4) seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Id. (quotation omitted).
Celio’s claim must fail because the instructions given were not plainly
erroneous. See United States v. Olano, 507 U.S. 725, 733–34 (1993) (defining
plain error as the violation of a legal rule that was clear or obvious at the time of
trial). Celio does not cite any legal authority in support of his proffered inclusion
of “knowingly,” nor can this court find any authority to support Celio’s position.
There is nothing in the statutory language at 21 U.S.C. § 841(a)(1), the regulatory
language at 21 C.F.R. § 1306.04, or any case law that requires the physician to
“know ingly” act without a legitimate medical purpose or outside the usual course
of professional practice. The statutory requirement of a “knowing” mental state
applies only to the dispensation or distribution of the controlled substance. See
21 U.S.C. § 841(a)(1). Reflecting the statutory scheme that distribution and
dispensation be “knowing,” the accompanying regulation only uses the w ord
“knowingly” to describe the requisite mental state of a pharmacist who fills an
invalid prescription. See 21 C.F.R. § 1306.04(a).
Additionally, there is no opinion of this court or any other appellate court
that indicates a physician must “knowingly” act outside the usual course of
professional practice or without a legitimate medical purpose when writing a
prescription in order to violate § 841(a)(1). To the contrary, other cases’
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discussions of the elements of the crime track the statutory and regulatory
language included in Celio’s jury instructions. See, e.g., Nelson, 383 F.3d at1231–32 (“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”); United States v. Varma, 691 F.2d 460,
462 (10th Cir. 1982) (reciting the professional practice element without reference
to a required mental state); see also United States v. M cIver, 470 F.3d 550, 556 &
n.9 (4th Cir. 2006) (failing to include “knowingly” in its recitation of the “outside
the usual course of professional practice” instruction).
Finally, the good-faith instruction clearly informed the jury that it could not
convict Celio if it found he “merely made an honest effort to treat his patients in
compliance with an acceptable standard of medical practice.” Any uncertainty the
jury may have had as to whether it could convict Celio for an honest error in
judgment would have been clarified by this instruction. For the foregoing
reasons, this court concludes there was no error in the jury instructions.
C. M istrial M otions Based on Alleged Discovery V iolations
Citing Federal Rule of Criminal Procedure 16, Celio claims the district
court erroneously denied two of his motions for a mistrial premised on the
prosecution’s alleged failure to provide him with incriminating evidence prior to
trial. The first challenged ruling occurred during the testimony of Agent Jaster
and concerned statements Celio made during the December 11 search of the All
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Family Health Care Clinic. Jaster testified that during the search he played Celio
a tape of the M ay 25 parking lot meeting with Hogan and, after hearing the tape,
Celio denied the voice on the tape was his. Despite his purported surprise at
Jaster’s testimony, however, Celio waited until after he had cross-examined Jaster
to object to Jaster’s testimony. Celio then argued the prosecution had not
previously disclosed the existence of this inculpatory statement. He contended
his voir dire questions, opening argument, and trial strategy would have been
different had the statement been disclosed prior to trial. Although the district
court acknowledged the non-disclosure of the statement may have constituted a
discovery violation, it concluded the error was not intentional or malicious. The
district court determined Celio was not prejudiced by the late disclosure of the
statement and denied Celio’s motion for a mistrial.
The second mistrial motion challenged on appeal occurred in response to
Hogan’s testimony. Hogan testified that, in July 2000, Celio said he could not
write H ogan additional prescriptions at that time but might be able to deal with
Hogan again in the future. Because of the poor quality of the surveillance tape,
this conversation was apparently difficult to hear. Celio objected that the
inculpatory material on the tape had not been disclosed prior to trial. The
prosecutor argued the tape was audible if listened to repeatedly and that a
transcript had long been available. The court denied Celio’s motion, explaining
the jury would have to decide how to interpret the tape.
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This court reviews a district court’s denial of a motion for a mistrial for an
abuse of discretion. United States v. Stiger, 413 F.3d 1185, 1194 (10th Cir.
2005). W hen faced with a motion for a mistrial, a district court must determine
whether an error occurred and, if so, “w hether that error affected the defendant’s
right to a fair and impartial trial.” Id. (quotation omitted). A district court’s
ruling will only be disturbed on appeal if its determination “was based on a
clearly erroneous finding of fact or an erroneous conclusion of law or manifests a
clear error of judgment.” Id. (quotation omitted). A mistrial is a sanction of last
resort and, particularly in the context of discovery violations, less drastic
remedies are preferable. United States v. M artinez, 455 F.3d 1127, 1130 n.2
(10th Cir. 2006). A defendant should object to an alleged violation “at the first
reasonable opportunity” in order to allow the court to take curative actions less
drastic than a mistrial. Id.The district court did not abuse its discretion when denying either of
Celio’s motions. As to the first motion, which Celio did not make at “the first
reasonable opportunity,” a fact that alone could weigh against granting a motion
for a mistrial, see id. at 1131, the district court correctly determined that, even if
an inadvertent discovery violation occurred, Celio was not prejudiced. Celio
cross-examined Jaster about why he had not included the statement in his
summary report, taped the conversation, or generated a more extensive written
report about the execution of the All Family Health Care Clinic search warrant
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and his interaction with Celio. As to Celio’s argument that his trial strategy,
including whether to testify in his own defense, would have been different had he
known about Jaster’s disclosure, the record is clear that Celio had not yet
finalized a trial strategy at the time the disclosure was made. He did not decide
until the end of the government’s evidence whether to testify in his own defense
or call Compton as a witness. Celio further argues he might have called other
witnesses to challenge Jaster’s testimony and the corroborating testimony of
Karen Lutz. Celio, however, never moved for a continuance or otherwise
indicated the need to interview witnesses or conduct further investigation. 3
Celio’s other arguments, both those made to the district court regarding voir dire
and those made for the first time on appeal, including the suggestion that Celio
might have accepted a plea deal, are equally unpersuasive.
Regarding Celio’s second motion, the district court’s ruling was correct.
Celio does not dispute the existence of the audiotape in question. His argument
before the trial court was simply that the tape quality impeded his ability to hear
the statement testified to by Hogan. The district court appropriately indicated
that parsing the tapes fell to the jury and instructed the jury to disregard
transcripts of the tapes where the tape and the transcript appeared to conflict or
3
The trial court asked Celio whether he wanted the opportunity to interview
Karen Lutz prior to her testimony in order to ameliorate any potential discovery
violations. The defendant’s investigator attempted such an interview prior to
Lutz’s testimony.
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where words that appeared in the transcript were not audible on the tape. Based
on the record before us, we conclude the district court properly denied C elio’s
motions for a mistrial.
D. Prosecutorial M isconduct Related to Character Evidence
Celio contends on appeal that prosecutorial misconduct relating to evidence
of Celio’s prior bad acts occurred at several points during the trial, and that the
cumulative effect of this misconduct prejudiced his ability to receive a fair trial.
W hen the defendant objects to the alleged misconduct at trial and moves for a
mistrial, this court reviews the district court’s denial of the defendant’s motion
for an abuse of discretion. United States v. M eienberg, 263 F.3d 1177, 1180
(10th Cir. 2001). W hen the defendant has merely objected to the statement
without moving for a mistrial, however, there is no exercise of the district court’s
discretion for an appellate court to review. Id. In such cases, we evaluate the
prosecutor’s actions for harmlessness, and reversal is appropriate only when “the
misconduct [has] . . . been flagrant enough to influence the jury to convict on
grounds other than the evidence presented.” Id. (quotation omitted). In
evaluating “whether the misconduct had such an impact, we consider the trial as a
whole, including the curative acts of the district court, the extent of the
misconduct, and the role of the misconduct within the case.” Id. (quotation
omitted); see also United States v. M aynard, 236 F.3d 601, 604–07 (10th Cir.
2000). Cumulative error, which Celio asserts is present in this case, may lead to
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reversal only when the flagrant misconduct standard outlined above has been met.
See United States v. Haar, 931 F.2d 1368, 1377 (10th Cir. 1991) (“The
harmlessness of cumulative error is determined by conducting the same inquiry as
for individual error.” (quotation omitted)).
Each of the eight instances of alleged prosecutorial misconduct raised in
Celio’s opening brief are summarized below. 4 In this case, Celio objected to the
prosecutor’s actions in each of the instances properly raised on appeal, but moved
for a mistrial in only one instance. Although this court shares the district court’s
frustration with respect to some of the prosecutor’s actions, the district court gave
appropriate curative instructions both during the trial and before the jury began its
deliberations. 5 The nature of the evidence against Celio, along with the district
4
In addition to the eight instances of alleged prosecutorial misconduct
raised in his opening brief, Celio raises five additional allegations in his reply
brief. Because Celio’s belated allegations violate Federal Rule of Appellate
Procedure 28(a)(9)(A ) and the government did not have the opportunity to
respond to the additional allegations, we deem Celio’s arguments as to these
additional five instances of purported misconduct as waived and do not consider
them.
5
As part of the pre-deliberation jury instructions, the court told the jury:
The defendant is only on trial for the particular charges alleged
against him in the Indictment. You have heard evidence that the
defendant may have committed other acts w hich are not charged in
the Indictment. I instruct you, however, that your job is to determine
beyond a reasonable doubt whether the Government has proven the
four charges alleged in the Indictment. If it has not proven a precise
charge in the Indictment, then you must acquit the defendant on that
charge, even though you think the defendant may have done some
(continued...)
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court’s curative actions, lead this court to conclude that the jury convicted Celio
based solely on the evidence properly before it and that any individual or
cumulative error w as harmless.
1. Jaster Testimony
Celio’s first three objections, which were not accompanied by a mistrial
motion, relate to testimony elicited from Agent Jaster. The first was a hearsay
objection to Jaster’s testimony that the DEA began investigating Celio, in
addition to another employee at the All Family Health Care Clinic, after receiving
“other complaints” against Celio “regarding another former patient.” The district
court appropriately responded to the prosecutor’s error by sustaining Celio’s
objection. Particularly in light of Celio’s own assertions during his opening
argument that he had called the DEA about the very same former patient, Steve
Compton, there is nothing in the record to suggest this testimony was anything
other than harmless.
The second challenged piece of testimony involves Jaster’s explanation that
the FBI became involved in the DEA’s investigation because it had “information
5
(...continued)
other act not charged in the Indictment.
You are not here to return a verdict concerning the guilt or
innocence of any person who is not specifically charged in the
Indictment. You are here to determine whether the Government has
proven its charges against this defendant beyond a reasonable doubt.
The possible guilt of others is simply irrelevant to a criminal
charge in a case such as this. Do not let the possible guilt of others
influence your decision about this defendant in any way.
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on a previous investigation involving Dr. Celio and some other people.” Celio
objected to the testimony and the court sustained the objection. To ameliorate
any harm from the statement, the court asked Celio whether he wanted the
statement stricken, and then instructed the jury, “[I]t’s improper to get into prior
investigations. And the jury should ignore the testimony concerning any prior
investigations the FBI had of Dr. Celio. It’s totally irrelevant, totally improper.
It is stricken.” The limited nature of the misconduct, combined with the district
court’s clear curative instruction, rendered this testimony harmless.
The third instance of testimony Celio challenges is Jaster’s testimony
regarding a conversation he had with Celio in M arch 2000 when the DEA was
investigating Steve Compton. Jaster testified he called the clinic “to talk to one
of [Celio’s] employees regarding another patient.” A ccording to Jaster, a short
time later, he received a return call from Celio, who began talking about Steve
Compton. Jaster testified Celio told him “he had provided Steve Compton’s wife
with prescriptions for controlled substances through Steve Compton” and that the
DEA and FBI “made the conclusion that he was providing the prescriptions to
Steve Compton for his wife, Stacy Compton.” Celio objected to this last
statement, arguing to the court “[A]t some point this is character assassination.
And we’re not trying the case on the indictment. At some point, this has got to
stop.” The court sustained the objection, indicating it agreed with Celio’s
characterization and adding “Let’s go and see what happens. This is getting too
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persistent.” Because the court had already instructed the jury moments earlier to
disregard any information related to the FBI’s prior investigations of Celio,
another curative instruction was not necessary. Furthermore, Jaster’s statement
about law enforcement’s “conclusion” merely restated Celio’s own statement to
Jaster, which may have been admissible as the admission of a party-opponent
under Federal Rule of Evidence 801(d)(2)(A ). W e conclude, therefore, while
Jaster’s testimony may have been improper as a violation of Rule 404(b), it was
not flagrant enough to have improperly affected the jury’s verdict under the
harmless error standard.
The fourth challenge involves a reference Jaster made to a separate search
warrant executed at All Family Health Care Clinic on the same day as the Celio
search warrant. The subject of the second search warrant was Timothy M ., whom
the DEA and FBI were investigating for illegal acquisition and possession of
steroids. Jaster also responded affirmatively to the prosecutor’s inquiry into
whether Timothy M . was “part of this case at one point.” Celio moved for a
mistrial in response to Jaster’s reference to the Timothy M . investigation and
Timothy M .’s involvement in Celio’s case. Celio argued the reference impugned
his character by suggesting he was engaged in or affiliated with other potentially
illegal activity. The court denied Celio’s motion for a mistrial, but sustained the
objection. The court then informed the jury,
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M embers of the jury, you have just heard the witness testify
about someone named [Timothy M .], and you’ve also heard some
testimony about M r. [M .]’s activities.
I want to tell you, this is a long and complex case. It was filed in
2001, so it’s been pending a long time. And large parts of this
investigation have nothing to do with other parts of the investigation. In
particular, you are instructed that you are not to infer that the investigation
of M r. [M .] that you just heard about had anything to do with the pending
charges against this defendant, Albert Celio.
Because Celio moved for a mistrial, we review the district court’s denial of
Celio’s motion for an abuse of discretion. M eienberg, 263 F.3d at 1180. The
district court’s curative instruction appropriately responded to the improper
testimony. The denial of the motion for a mistrial was not an abuse of the district
court’s discretion. Celio’s challenge to the testimony regarding Timothy M .,
therefore, must fail.
2. Lapetina Testimony
Celio’s next challenge involves the testimony of Donna Lapetina, the All
Family Health Care Clinic’s owner and the office administrator. The prosecutor
asked Lapetina whether she had confronted Celio about his prescribing practices
for narcotics between late 1999 and early 2000. W hen Lapetina indicated she
had, the prosecutor asked how many times she had confronted Celio during that
period. Celio made a relevance objection to the question, and, after a conference
at the bench in which Celio argued the prosecution was trying to get in Rule
404(b) evidence of other bad acts, the court sustained the objection. Although the
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prosecutor’s question may have been prejudicial in a very general way, we have
no grounds for concluding that the jury’s verdict would have been influenced by
the mere suggestion that Lapetina may have confronted Celio on more than one
occasion about his narcotic prescriptions.
3. Gierwatoski Testimony
Celio’s sixth challenge arises from the testimony of Thomas Gierw atoski, a
pharmacist familiar with Celio. The government inquired as to whether, as part
of his duties, Gierwatoski kept a file on the narcotic prescriptions Celio wrote
between 1997 and 2000. W hen Gierwatoski indicated he had kept such a file, the
government asked why. Celio objected. After the prosecutor explained the line
of questioning was intended to show it was unusual for the pharmacy to have kept
such a file, the court sustained Celio’s objection. Celio asked for the prosecutor’s
explanation to be stricken from the record, and the court responded by instructing
the jury that “the way a lawyer words a question is not evidence in the case.” The
government rested its case without attempting to elicit more information from
Gierwatoski, and Gierwatoski never answ ered the question as to why he kept a
file on Celio. Because the jury never heard a prejudicial response, the exchange
was harmless and could not have influenced the basis for the jury’s verdict.
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4. Prosecutor’s Statem ents
Celio’s last two challenges relate to statements made by the prosecutor
during the government’s closing and rebuttal arguments. First, during the
government’s closing statement, the prosecutor played an audio clip of the M ay
25 Sports Café conversation in which Celio warned Hogan that he needed to keep
his Percocet consumption to a reasonable level, advising Hogan that Doug S.,
another person referred to Celio by Compton, is “very reasonable with the meds.”
Celio went on to tell Hogan, “If it gets out of control, and it has in the past w ith
some people . . . I let [th]em know .” After playing this clip, the prosecutor
comm ented, “This isn’t the first time that Dr. Celio has done this kind of thing.”
Celio objected to the prosecutor’s comment as “character assassination,” arguing
he was “trying to suggest that [Celio] had done other things that we haven’t had
evidence about . . . . It’s the classic 404(b) suggestion.” The court sustained the
objection, reminding the government that the court had precluded the introduction
of any evidence regarding Celio’s relationship with Doug S. The court told the
prosecutor to “move on.” In light of the contents of the tape, which had been
admitted into evidence and include Celio discussing his experiences with Doug S.
and others, the prosecutor’s statement, while inappropriate, was harmless. Based
on Celio’s audio-recorded statements, the jury could reasonably have inferred on
its own that Celio prescribed pills for others outside the course of legitimate
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medical practice. The prosecutor’s statement, therefore, could not have
improperly influenced the jury’s verdict and was harmless.
Second, during the government’s rebuttal argument, the prosecutor asked
the jury to consider why Compton had not testified. Agreeing with Celio that
Compton was a “scoundrel,” the prosecutor went on to say Compton is “a
criminal,” not a “government agent,” who was “used to get into his source.”
Celio objected to the use of the w ord “source,” arguing it implied Celio w as a
drug dealer from whom Compton was getting drugs illegally. He argued that
nothing in the evidence showed Celio himself had improperly provided Compton
with drugs. The court overruled the objection, maintaining the evidence
supported the inference that Compton received prescriptions for drugs from Celio.
The government continued w ith its rebuttal, explaining the evidence had shown
that, although Compton forged prescriptions, there was also testimonial evidence
that Celio continued to see Compton at the clinic after hours. Although the
record does not support the proposition that Compton received pills from Celio, it
certainly supports the inference that Compton got prescriptions from Celio.
Because “dispensing” includes providing prescriptions, see 21 U.S.C. § 802(10),
there was no error in the prosecutor’s use of the word “source” or the district
court’s response to Celio’s objection.
In summary, viewed in the context of the trial as a whole, including the
district court’s curative actions, jury instructions, and the extent and role of
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misconduct within the case, the instances challenged by Celio do not rise, either
individually or cumulatively, to the level of flagrant prosecutorial misconduct
required for a new trial. Although the government’s action were, at times,
erroneous, the “question for resolution is not the culpability of the government,
but the fairness of the trial.” United States v. Villa-Chaparro, 115 F.3d 797, 803
(10th Cir. 1997). Based on the record before this court, we conclude Celio
received a fair trial and is not entitled to a new one.
IV . C ON CLU SIO N
For the foregoing reasons, Celio’s conviction is AFFIRM ED.
ENTERED FOR THE COURT
M ichael R. M urphy
Circuit Judge
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