United States v. Patrick Titus ( 2023 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 22-1516
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UNITED STATES OF AMERICA
v.
PATRICK TITUS,
Appellant
_______________
On Appeal from the United States District Court
for the District of Delaware
(D.C. No. 1:18-cr-00045-001)
District Judge: Honorable Richard G. Andrews
_______________
Argued: June 20, 2023
Before: CHAGARES, Chief Judge, and BIBAS and MATEY,
Circuit Judges
(Filed: August 22, 2023)
_______________
Mary Kate Healy [ARGUED]
Eleni Kousoulis
OFFICE OF THE FEDERAL PUBLIC DEFENDER
800 King Street, Suite 200
Wilmington, DE 19801
Counsel for Appellant
John-Alex Romano [ARGUED]
Jeremy R. Sanders
U.S. DEPARTMENT OF JUSTICE
CRIMINAL DIVISION
Room 7101
1400 New York Avenue NW
Washington, DC 20005
Counsel for Appellee
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OPINION OF THE COURT
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BIBAS, Circuit Judge.
Though the prosecution bears a heavy burden of proof, we
will not let it cut corners. Dr. Patrick Titus wrote thousands of
prescriptions for controlled substances. The government
properly proved that many of these prescriptions were unlaw-
ful, so we will affirm Titus’s conviction. But many other pre-
scriptions were lawful. And the severity of Titus’s sentence de-
pended on how many were not. Rather than review every pa-
tient’s file, the government urged the court to extrapolate from
a small sample. Yet the government failed to show that doing
so would satisfy its burden to prove the drug quantity by a pre-
ponderance of the evidence. Because the court sentenced Titus
without enough proof, we will vacate his sentence and remand
for resentencing.
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I. THE PILL MILL
Titus ran a solo medical practice and had a license to pre-
scribe controlled substances. For a time, business boomed. In
its last thirteen months, Titus’s practice earned almost
$1.1 million by handing out more than 20,000 prescriptions for
Schedule II drugs.
But many of those prescriptions were illegal. For one thing,
Titus would often do only cursory physical examinations before
prescribing opioids. As a former patient put it, visiting Titus
was like a “revolving door, in and out.” JA 560. For another,
he kept prescribing drugs despite signs that his patients were
diverting or abusing them. Many tested negative for prescribed
drugs or tested positive for illegal drugs. Though Titus some-
times sent these patients warning letters, he kept the prescrip-
tions flowing. And even when he kicked patients out of his
practice, he often sent them off with one last prescription.
Eventually, others caught on. Several drugstores refused to
fill his prescriptions. And at least two of Titus’s patients over-
dosed, leading other doctors to file professional complaints
against him. Trying to avoid the growing scrutiny, he shut
down his practice.
But it was too late. Just weeks later, federal agents raided
the homes of Titus and two of his employees. There, they found
thousands of patient files, revealing Titus’s illicit practices. He
was indicted on fourteen counts of unlawfully dispensing and
distributing controlled substances (one count for each of four-
teen prescriptions) and one count of maintaining drug-involved
premises, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C),
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856(a)(1). The jury acquitted Titus on one dispensing-and-
distributing count but convicted him on all the rest.
Yet the fourteen prescriptions in the indictment were far
from the whole story. At trial, with an eye toward sentencing,
the government put on evidence of many prescriptions beyond
the fourteen listed in the indictment. That evidence came from
two witnesses: the government’s statistician and its medical
expert.
The statistician began by reviewing data from the Prescrip-
tion Monitoring Program. The Program records when doctors
write prescriptions, when drugstores fill them, and which pa-
tient gets them. From that data, he identified 1,142 patients
who had gotten a prescription for controlled drugs from Titus
during his practice’s last two years. From that group, the stat-
istician drew a random sample of 300 patients. That sample
was appropriate, he testified, because it was large enough for
reliable extrapolation.
Of the 300 patients, the government found only 282 pa-
tients’ files. The statistician reviewed those files and extrapo-
lated from them to the total universe of patients, concluding
that Titus had handed out (a) 29,323 prescriptions for con-
trolled substances to 948 patients with at least one inconsistent
drug test and (b) 1,552 prescriptions for controlled drugs to 352
patients he had already discharged from his practice. Though
these numbers reflected suspicious prescriptions, the statisti-
cian said nothing about how many were illegal.
But the government’s medical expert did. From the 282-
patient sample, the government asked him to review the first
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twenty-four files. He determined that Titus had written illegal
prescriptions to eighteen of the twenty-four patients.
At sentencing, the government sought to hold Titus respon-
sible not just for the thirteen illegal prescriptions for which he
was indicted and convicted, but for all his relevant conduct.
U.S.S.G. § 1B1.3(a)(1). Under the Sentencing Guidelines, his
responsibility was based on the total “converted drug weight”
of all his illegal prescriptions. § 2D1.1.
Predictably, Titus and the government put forward vastly
different weights. The government tried to include all the
Schedule II prescriptions Titus had written in his practice’s last
thirteen months. By that count, his converted drug weight was
more than 106,000 kilos, giving him a base offense level of 38.
Titus said the court should look at only the thirteen patients for
whom he had been convicted, plus the eighteen whom the med-
ical expert had identified. Those thirty-one patients had a con-
verted drug weight of only 7,500 kilos, which would mean a
base offense level of 32.
The District Court steered a middle path. On the one hand,
it hesitated to include all the drugs from all thirteen months,
whether lawfully or unlawfully prescribed. On the other hand,
it declined to limit the sentence to the drugs personally re-
viewed by the jury and medical expert. So the court revised the
government’s calculation, holding Titus responsible for at least
30,000 kilos.
To reach that weight, the court cited “general trial evi-
dence” and the backdrop of “widespread illegal prescribing
[and] ignoring of positive drug tests.” JA 2335–36. But it relied
mostly on the medical expert’s testimony. The court believed
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that it could extrapolate from the sample of twenty-four files
“careful[ly],” even though it thought that this was “not a statis-
tically valid number.” JA 2336. The court’s finding of at least
30,000 kilos led to a base offense level of 36. After adding two
other enhancements, Titus’s Guidelines range was 292 to
365 months’ imprisonment. Varying downward, the court sen-
tenced Titus to 240 months. He now appeals.
The District Court had jurisdiction under 18 U.S.C. § 3231.
We have jurisdiction to review Titus’s sentence under 18
U.S.C. § 3742(a) and his conviction under 28 U.S.C. § 1291.
II. THE GOVERNMENT FAILED TO PROVE
TITUS’S DRUG WEIGHT
Titus says there was not enough evidence to prove that he
was responsible for at least 30,000 kilos. We review the Dis-
trict Court’s factual finding for clear error. United States v.
Diaz, 951 F.3d 148, 159 (3d Cir. 2020). And “[a]t sentencing,
the government bears the burden of proving drug quantity by a
preponderance of the evidence.” United States v. Douglas, 885
F.3d 145, 150 (3d Cir. 2018) (internal quotation marks omitted
and alterations adopted).
As mentioned, some of Titus’s prescriptions were lawful.
See 21 U.S.C. § 841(a); Ruan v. United States, 142 S. Ct. 2370,
2375 (2022). So the drug quantity for which he may be crimi-
nally punished is the amount of illegal prescriptions. Extrapo-
lation is permissible, but “the government must show, and the
court must find, that there is an adequate basis in fact for the
extrapolation and that the quantity was determined in a manner
consistent with accepted standards of reliability.” United States
v. McCutchen, 992 F.2d 22, 25–26 (3d Cir. 1993). To meet this
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standard, “the government would be well advised to introduce
more detailed (and less conclusory) evidence” to support its
“conclus[ion] that there was a representative sample.” Id. at 26
n.8.
Yet the evidence did not support a reliable extrapolation.
The District Court used the medical expert’s review of twenty-
four files to infer the illegality of thousands of other prescrip-
tions. In the court’s view, that sample size was not “statistically
valid.” JA 2336. Yet it extrapolated anyway. And without
much explanation from the District Court, Titus had no chance
to “respond meaningfully, or for that matter, at all.” United
States v. Nappi, 243 F.3d 758, 766 (3d Cir. 2001).
Plus, the government never showed that the sample was
large enough to be reliably representative of the remaining
thousands of prescriptions. (Though statistical evidence can
help to show that a sample size is large enough to support reli-
able inferences, we do not hold that such evidence is always
necessary.) Nor did it document proper extrapolation methods.
And it never explained how extrapolating from this sample
could prove the huge drug weight by a preponderance of the
evidence. So the sentencing court failed to “ensure that the
Government carrie[d] [its] burden [of proof] by presenting re-
liable and specific evidence.” United States v. Roman, 121 F.3d
136, 141 (3d Cir. 1997) (internal quotation marks omitted).
If not as a reliable extrapolation, the government asks us to
affirm the court’s finding as a reasonable estimate. The two
terms emphasize different things here: extrapolation is using a
representative sample to draw inferences about a known, larger
whole, while estimation is using evidence of particular drug
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conduct to infer the unknown total drug quantity associated
with that conduct. Neither extrapolation nor estimation is a le-
gal term of art. Rather, both are complementary ways for the
government to satisfy its burden of proof: that, more likely than
not, the defendant possessed, sold, or distributed at least this
drug quantity.
Some cases may call for both estimation and extrapolation,
but this case does not. We have allowed estimation as a way to
compute an overall drug quantity that is unknown. See, e.g.,
United States v. Paulino, 996 F.2d 1541, 1545 (3d Cir. 1993);
Diaz, 951 F.3d at 154, 159–60. Here, by contrast, the universe
of drugs is known. Thus, estimation was not needed. Paulino,
996 F.2d at 1545.
As a last-ditch measure, the government cites other evi-
dence, but none of it suffices. The statistician noted suspicious
prescriptions but declined to call them unlawful. And the other
trial evidence was too general. Plus, the drug-involved-
premises conviction does “not translate readily into a specific
drug quantity finding, which is the ultimate issue for sentenc-
ing purposes.” United States v. Miele, 989 F.2d 659, 668 (3d
Cir. 1993).
On remand, the government can try to put on more drug-
quantity evidence. But it may not do so unless admitting the
evidence is necessary for fairness. United States v. Rowe, 919
F.3d 752, 762–63 (3d Cir. 2019); United States v. Dickler, 64
F.3d 818, 832 (3d Cir. 1995). We leave that decision to the
District Court.
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III. TITUS’S CHALLENGES TO HIS CONVICTION FAIL
Though Titus’s challenge to his sentence has merit, his
many challenges to his conviction do not. First, he says the
District Court should have admitted his expert testimony that
his thinking was “rigid and inflexible.” Appellant’s Br. 28.
And he says excluding that testimony violated his constitu-
tional right to present a defense. We review the evidentiary de-
cision for abuse of discretion and the constitutional argument
de novo. United States v. Watson, 260 F.3d 301, 306 (3d Cir.
2001); United States v. Gordon, 290 F.3d 539, 546 (3d Cir.
2002).
The court rightly excluded the testimony because it did not
“support a legally acceptable theory of lack of mens rea.”
United States v. Pohlot, 827 F.2d 889, 906 (3d Cir. 1987). And
it properly excluded a variant of the testimony that would have
“state[d] an opinion about whether [Titus] … ha[d] a mental
state … that constitutes an element of [§ 841(a)(1)].” Fed. R.
Evid. 704(b). Because the District Court reasonably applied
“the standard rules of evidence,” excluding the testimony did
“not violate [Titus’s] constitutional right.” United States v.
Heinrich, 57 F.4th 154, 167 (3d Cir. 2023) (internal quotation
marks omitted).
Second, Titus argues that the District Court wrongly closed
the courtroom during jury selection. Because he did not object
at trial, he bears the burden of showing “a plain error that af-
fect[ed] [his] substantial rights.” Fed. R. Crim. P. 52(b). But
his only evidence of a courtroom closure is an ambiguous order
to relocate. So he has not carried his burden to show that the
District Court erred. Puckett v. United States, 556 U.S. 129,
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135 (2009); United States v. Olano, 507 U.S. 725, 734 (1993).
And even if he had, justice would not require reversal. United
States v. Williams, 974 F.3d 320, 337, 347–48 (3d Cir. 2020).
Third, Titus challenges the jury instructions and the court’s
rejection of his proposed good-faith instruction. We review the
instructions’ statement of the law de novo and the court’s re-
fusal to give a specific instruction for abuse of discretion.
United States v. Friedman, 658 F.3d 342, 352 (3d Cir. 2011).
Here, the instructions required the jury to find that Titus had
knowingly or intentionally distributed controlled substances
outside “the usual course of professional practice and not for a
legitimate medical purpose.” JA 2168. That instruction cor-
rectly reflected Ruan. 142 S. Ct. at 2375. Because its instruc-
tion covered the relevant law, the District Court did not abuse
its discretion by denying the proposed good-faith instruction.
United States v. Gross, 961 F.2d 1097, 1102–03 (3d Cir. 1992).
Finally, Titus argues that a series of prosecutorial misdeeds
violated due process. We review the court’s rulings on alleged
prosecutorial misconduct for abuse of discretion. United States
v. Lee, 612 F.3d 170, 193 (3d Cir. 2010). Whether taken indi-
vidually or together, we see no misconduct here.
Titus says the government improperly (1) elicited a preju-
dicial statement from one of its witnesses and (2) commented
on his silence. But the District Court found that the government
had not elicited the statement deliberately. And in context, the
prosecution did not “manifestly intend[ ]” to comment on his
silence, nor would the jury “naturally and necessarily” have
taken it that way. United States v. Brennan, 326 F.3d 176, 187–
88 (3d Cir. 2003) (internal quotation marks omitted). Plus, the
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District Court struck the comments and gave curative instruc-
tions, which we presume the jury followed. See Samia v.
United States, 143 S. Ct. 2004, 2013–14 (2023).
Titus also challenges the government’s opening statement
and closing argument. But he failed to object at trial and cannot
show “egregious error or a manifest miscarriage of justice.”
Brennan, 326 F.3d at 182 (internal quotation marks omitted).
And the challenged statements fell within the prosecutor’s
“considerable latitude” to argue the evidence. United States v.
Green, 25 F.3d 206, 210 (3d Cir. 1994) (internal quotation
marks omitted).
Titus lastly protests that the prosecution waited to disclose
a failed undercover investigation until the eve of trial. This is a
Brady claim, for which we review the court’s legal conclusions
de novo and its findings of fact for clear error. Brady v. Mary-
land, 373 U.S. 83 (1963); United States v. Moreno, 727 F.3d
255, 262 (3d Cir. 2013). Titus’s argument is belied by the rec-
ord: he used the investigation effectively throughout his de-
fense, so it was disclosed in time. United States v. Higgs, 713
F.2d 39, 44 (3d Cir. 1983).
*****
The government may not use a small sample size to justify
a much larger criminal punishment without explaining how
that evidence satisfies its burden of proof. And courts must
tread cautiously too. At a minimum, any extrapolation must be
shown to be reliable, and defendants must have a fair chance
to challenge its reliability. Because Titus’s sentencing fell
short, we will vacate his sentence and remand.
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