United States v. Frank Purpera, Jr. ( 2021 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-4158
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FRANK CRAIG PURPERA, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Western District of Virginia, at
Roanoke. Elizabeth Kay Dillon, District Judge. (7:17-cr-00079-EKD-1)
Argued: October 30, 2020 Decided: February 5, 2021
Before DIAZ, THACKER, and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion. Judge Diaz wrote an opinion concurring in
part and dissenting in part.
ARGUED: Blair Tamara Westover, LAW OFFICES OF BEAU B. BRINDLEY, Chicago,
Illinois, for Appellant. Laura Day Rottenborn, OFFICE OF THE UNITED STATES
ATTORNEY, Roanoke, Virginia, for Appellee. ON BRIEF: Beau B. Brindley, LAW
OFFICES OF BEAU B. BRINDLEY, Chicago, Illinois, for Appellant. Thomas T. Cullen,
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Dr. Frank Purpera (“Appellant”) is a vascular surgeon who owned a medical
practice in Blacksburg, Virginia, and was registered with the Drug Enforcement
Administration (“DEA”) to administer controlled substances. Between April 21, 2014, and
August 4, 2016, Appellant purchased nearly 10,000 tablets of various controlled substances
from Henry Schein, Inc., a medical supply distribution company (“Henry Schein”). On
December 14, 2017, Appellant was charged with 67 counts of obtaining these controlled
substances by fraud, in violation of 21 U.S.C. § 843(a)(3) (Counts 1–68); 1 one count of
failing to maintain required records related to their disposition, in violation of 21 U.S.C.
§ 843(a)(4)(A) (Count 69); and one count of making a false statement to a DEA agent
investigating Appellant’s fraudulent activity, in violation of 18 U.S.C. § 1001(a)(2) (Count
70).
Following trial, a jury found Appellant guilty on all counts. Appellant moved for a
judgment of acquittal, which the district court granted with respect to Count 21 but
otherwise denied. 2 At sentencing, the district court calculated an advisory United States
Sentencing Guidelines (“Guidelines”) range of six to 12 months and imposed an above-
Guidelines sentence of 20 months of imprisonment.
1
Counts 1–68 of the indictment allege violations of 21 U.S.C. § 843(a)(3), but the
indictment does not include a Count 27.
2
The United States does not appeal the district court’s grant of Appellant’s motion
for acquittal with respect to Count 21.
3
Appellant now claims that his convictions should be vacated for a multitude of
reasons. He asserts (1) his trial counsel labored under a conflict of interest; (2) the district
court erroneously refused two of his requested jury instructions; (3) the district court
erroneously admitted expert testimony that contained impermissible legal conclusions; and
(4) his convictions were not supported by sufficient evidence. Additionally, Appellant
contends that his sentence is procedurally and substantively unreasonable. For the reasons
that follow, we find each of these claims to be without merit and affirm Appellant’s
convictions and sentence.
I.
A.
From 2014 to 2016, Appellant purchased thousands of tablets of oxycodone
(Percocet), hydrocodone (Lortab), alprazolam (Xanax), diazepam (Valium), and tramadol
(Ultram) -- all controlled substances under federal law -- from Henry Schein. Pursuant to
the company’s policy, before completing these purchases, Appellant was required to
submit purchase order forms that contained questions about “the approximate percentage
of patients that leave [his] office with controlled substances daily”; “the approximate
percentage of patients that are treated in [his] office with controlled substances daily”; and
whether he uses “any of the controlled drug items [he] order[s] to treat family members or
4
friends.” 3 J.A. 223–24. 4 At trial, the United States introduced evidence demonstrating that
the purchase order forms Appellant submitted to Henry Schein contained inaccurate
answers to these questions. For example, Appellant stated in his purchase order forms that
he did not administer the drugs he purchased from Henry Schein to family members or
friends, but in a June 23, 2017 letter to the Virginia Department of Health Professions,
Appellant stated that the vast majority of those controlled substances were given to his
wife, Rebecca Mosig.
At Appellant’s trial, Shaun Abreu, a senior manager for Henry Schein, testified that
the company requires prospective purchasers of its controlled substances to submit
purchase order forms because the answers to the questions contained in the forms are
important to the company when it decides whether or not to sell controlled substances to
the prospective purchaser. Abreu explained that Henry Schein’s policy is to only sell
controlled substances to purchasers who will prescribe and administer them in compliance
with all relevant “state medical board regulations,” and the answers to the questions
contained in the purchase order forms help the company determine if a potential purchaser
will do so. J.A. 307. Abreu also testified that the purchase order forms must be “filled out
3
At some point, Henry Schein removed the question about treating friends from its
purchase order forms. However, the purchase order form submitted by Appellant in April
2014 contained that question.
4
Citations to the “J.A.” refer to the Revised Joint Appendix filed by the parties in
this appeal.
5
and signed by” a party who is registered to administer controlled substances with the DEA.
Id. at 306.
B.
Appellant first caught the attention of federal law enforcement in August 2016,
when a DEA database revealed that he purchased more controlled substances than any
other physician in western Virginia in 2015, and more than all but one in 2016. Further
red flags were raised when the database revealed that, although Appellant purchased this
high volume of controlled substances, he only prescribed them to two individuals: his wife
and his mother.
The DEA’s investigation of Appellant began in earnest on August 26, 2016, when
DEA Investigator Mark Armstrong visited Appellant’s office and questioned him about his
purchase of oxycodone, alprazolam, and diazepam from Henry Schein. According to
Investigator Armstrong’s trial testimony, he asked Appellant if he maintained records
related to the disposition of those drugs, and Appellant responded that he maintained such
records in two different places: “in his patient file[s],” and in a separate “dispensing kind
of log.” J.A. 179. But when Investigator Armstrong then asked to review those records,
Appellant quickly admitted “there wasn’t a dispensing log.” Id. A subsequent search
warrant executed at Appellant’s office revealed that there were no records in Appellant’s
patient files related to any of the drugs that he purchased from Henry Schein.
C.
Grand jury proceedings began in December 2017, and Kayla Castleberry, a former
employee of Appellant, was called to testify. The day before her scheduled testimony,
6
Castleberry received text messages from Carla Craft, a then-current employee of Appellant
who was also subpoenaed to testify before the grand jury. Throughout the text message
exchange, Craft discouraged Castleberry from testifying before the grand jury without first
securing legal representation. In one text, Craft wrote, “John is spazzing about you going
alone tomorrow,” and explained, “John is like freaked out that you’re walking into a lions
[sic] den.” United States’ Resp. in Opp’n to Def.’s Renewed Mot. to Dismiss Indictment
for Prosecutorial Misconduct at 5, United States v. Purpera, No. 7:17-cr-79 (W.D. Va. Dec.
14, 2017; filed Jan. 26, 2018), ECF No. 88-1 [hereinafter United States’ Resp. in Opp’n to
Mot. to Dismiss Indictment]. Castleberry provided screenshots of these text messages to
Robert Slease, a Special Agent with the United States Department of Health and Human
Services who was working with the DEA task force investigating Appellant. Agent Slease
interviewed Castleberry about the text messages. Castleberry said the conversation made
her feel like she was “kind of being forced or coerced” to not testify. J.A. 56. Agent Slease
suspected that John Brownlee, Appellant’s lead trial counsel, was the “John” alluded to in
Craft and Castleberry’s text exchange. One week later, the DEA issued an administrative
subpoena for the phone records related to the text message exchange. One of the phone
numbers included in the subpoena belonged to Brownlee.
Upon learning of the DEA’s administrative subpoena of his lead counsel’s phone
records, Appellant moved to dismiss the indictment, alleging prosecutorial misconduct and
that the subpoena was an intentional and prejudicial invasion of the attorney-client
privilege. The United States responded that there was no prosecutorial misconduct because
the Government had subpoenaed the phone records not to learn the substance of
7
confidential attorney-client communications, but rather for the “very limited and legitimate
purposes arising from the need to determine whether [Brownlee] was contacting a
subpoenaed witness and encouraging her not to testify.” United States’ Resp. in Opp’n to
Mot. to Dismiss Indictment at 1, ECF No. 88. 5 Appellant dismissed this explanation,
asserting, “[T]here was no bona fide investigation into Mr. Brownlee.” Dr. Frank Purpera’s
Reply in Supp. of His Renewed Mot. to Dismiss at 1–6, United States v. Purpera, No. 7:17-
cr-79 (W.D. Va. Dec. 14, 2017; filed Jan. 27, 2018), ECF No. 92 [hereinafter Appellant’s
Reply in Supp. of Mot. to Dismiss Indictment]. On January 29, 2018, the district court
held a pre-trial hearing on Appellant’s motion to dismiss the indictment. The court
ultimately denied the motion, finding no Government misconduct and no prejudice to
Appellant. Appellant does not appeal this ruling, but now claims, through different
counsel, that the DEA’s investigation into Brownlee created a conflict of interest.
II.
A.
Conflict of Interest
Appellant claims his representation at trial was tainted by a conflict of interest
stemming from the fact that his prosecution paralleled the DEA’s investigation of his lead
trial counsel, Brownlee. The United States concedes that these circumstances caused
5
The United States made clear at oral argument that the phone records were
searched pursuant to an administrative subpoena that was issued unbeknownst to the
United States Attorney’s office. See Oral Argument at 19:00–21:05, United States v.
Purpera, No. 19-4158 (4th Cir. Nov. 2, 2020), https://www.ca4.uscourts.gov/oral-
argument/listen-to-oral-arguments.
8
Brownlee to labor under a conflict of interest. However, the parties dispute whether
Appellant validly waived the conflict and, if not, whether it was sufficiently significant as
to warrant the reversal of Appellant’s convictions.
The right to legal representation “that is free from conflicts of interest” is a
“necessary corollary to” the right to effective assistance of counsel guaranteed by the Sixth
Amendment. Fullwood v. Lee, 290 F.3d 663, 688–89 (4th Cir. 2002) (internal quotation
marks omitted). Like other ineffective assistance of counsel claims, claims that a
defendant’s representation at trial was tainted by a conflict of interest “present mixed
questions of law and fact that we review de novo.” United States v. Dehlinger, 740 F.3d
315, 323 (4th Cir. 2014) (internal quotation marks omitted). Generally, to prevail on a
conflict claim, a defendant must “establish that (1) an actual conflict of interest (2)
adversely affected his lawyer’s performance.” Id. at 322. To determine whether a conflict
adversely affected a lawyer’s performance, we apply a three-part test originally articulated
by the Eleventh Circuit in Freund v. Butterworth, 165 F.3d 839, 860 (11th Cir. 1999) (en
banc). See Mickens v. Taylor, 240 F.3d 348, 361 (4th Cir. 2001) (en banc) (adopting the
Freund test). The Mickens court described that test as follows:
First, the [defendant] must identify a plausible alternative
defense strategy or tactic that his defense counsel might have
pursued. Second, the [defendant] must show that the
alternative strategy or tactic was objectively reasonable under
the facts of the case known to the attorney at the time of the
attorney’s tactical decision. . . . Finally, the [defendant] must
establish that the defense counsel’s failure to pursue that
strategy or tactic was linked to the actual conflict.
Id.9
If, however, a case involves what the Supreme Court has described as a “per se”
violation of the Sixth Amendment, a showing of adverse effect is not necessary and the
underlying conviction must be reversed. See United States v. Cronic, 466 U.S. 648, 659–
60 (1984). The Supreme Court has recognized only three categories of per se violations of
the Sixth Amendment: (1) “the complete denial of counsel;” (2) “counsel entirely fail[ing]
to subject the prosecution’s case to meaningful adversarial testing;” and (3) where “the
likelihood that any lawyer, even a fully competent one, could provide effective assistance
is so small that a presumption of prejudice is appropriate.” Id.
1.
We begin by assessing whether Appellant validly waived Brownlee’s conflict of
interest. At the pre-trial hearing, the district court addressed the possibility that the
administrative subpoena of Brownlee’s phone records created a conflict of interest in his
representation of Appellant. The district court accorded Appellant roughly 12 minutes to
discuss with his attorneys -- including Brownlee -- whether he wanted to continue his
defense with the same counsel. Following that discussion, the court inquired as to whether
Appellant would “voluntarily, without [the court] requiring it, be willing to . . . waive[] any
conflict.” J.A. 138. Appellant responded, “[T]his is my team that I hired. I’m innocent. I
would like to move forward and get my life together.” Id. The court then asked Appellant
whether his counsel had explained to him “that there might be a potential for a conflict of
interest” stemming from the subpoena of Brownlee’s phone records, and whether he
nonetheless was “still willing to go forward with [the same] counsel . . . representing” him.
Id. at 138–39. Appellant answered both questions in the affirmative.
10
We conclude that, despite the district court’s colloquy, Appellant did not validly
waive Brownlee’s conflict of interest. To validly waive a conflict of interest, a defendant
must possess a “knowledge of the crux of the conflict and an understanding of its
implications.” United States v. Brown, 202 F.3d 691, 698 (4th Cir. 2000) (emphasis in
original). While it is clear Appellant was aware of the potential conflict of interest, we are
not convinced that he was aware of its implications. For starters, the district court never
explicitly confirmed that Appellant understood that Brownlee’s conflict could negatively
impact the quality of his legal representation. Furthermore, because Brownlee did not
believe that the witness tampering investigation was legitimate, and because defense
counsel stated that they saw “no issue with regard to any conflict or potential conflict,”
J.A. 136, it is plausible that those implications were never adequately explained to
Appellant during his 12-minute conversation with his attorneys. Finally, we reject the
United States’ argument that Appellant must have understood the crux of the conflict as a
result of his being present for the entire pre-trial hearing. The bulk of that hearing was
devoted to determining whether the administrative subpoena of Brownlee’s phone records
constituted prosecutorial misconduct, not whether it created a serious conflict of interest. 6
6
Tellingly, the district court -- which conducted the colloquy regarding the conflict
of interest -- did not find Appellant’s waiver to be intelligent and knowing. The district
court was concerned that Appellant was never “advised specifically about the possible
implications of the conflict.” J.A. 634.
11
2.
Because Appellant did not validly waive Brownlee’s conflict of interest, we now
must determine whether the conflict was so significant as to require the reversal of
Appellant’s convictions. Reversal is required if the conflict (1) constitutes a per se
violation of the Sixth Amendment; 7 or (2) adversely affected Brownlee’s representation of
Appellant. Here, Appellant cannot establish that reversal is required under either approach.
a.
Appellant has been represented by counsel at every stage of his criminal
proceedings. Furthermore, it cannot be said that Appellant’s lawyers “entirely fail[ed] to
subject the prosecution’s case to meaningful adversarial testing,” Cronic, 466 U.S. at 659,
as defense counsel cross-examined each of the United States’ trial witnesses and filed, inter
alia, a motion to dismiss the indictment, motions to exclude key evidence and witnesses, a
motion for a new trial, and a motion for judgment of acquittal. Therefore, to establish a
per se violation of the Sixth Amendment, Appellant must demonstrate that Brownlee’s
conflict of interest made “the likelihood that any lawyer, even a fully competent one, could
provide effective assistance [] so small that a presumption of prejudice is appropriate.” Id.
at 660. “This is an extremely high showing for a criminal defendant to make,” Brown v.
French, 147 F.3d 307, 313 (4th Cir. 1998), and we have been careful to not “broaden the
7
At oral argument, Appellant argued that if a conflict of interest results in a per se
violation of the Sixth Amendment, it may not be waivable in the first place. Because we
conclude that Appellant did not validly waive Brownlee’s conflict, we need not decide
whether that is an accurate statement of the law in the Fourth Circuit.
12
per-se prejudice exception to Strickland,” Glover v. Miro, 262 F.3d 268, 277 (4th Cir.
2001).
In arguing that Brownlee’s conflict of interest meets this demanding standard and
requires per se reversal of his convictions, Appellant urges us to adopt the following
position, which he describes as a “basic rule” that has been “recognized by the Second
Circuit”: that “un-waived conflicts of interest[] stemming from an investigation into trial
counsel for conduct related to the defendant’s case are per se reversible and do not require”
a showing of adverse effect. 8 Appellant’s Reply Br. 11–12.
To the extent the Second Circuit recognizes a “basic rule” concerning per se reversal
based on conflicts of interest, Appellant miscomprehends it. In the Second Circuit,
automatic reversal of a conviction is required when a defendant establishes that his attorney
labored under a so-called “‘per se’ conflict of interest, i.e., one that does not as a matter of
law admit of harmless-error analysis.” Armienti v. United States, 234 F.3d 820, 823 (2d
Cir. 2000). There are only two situations that give rise to a per se conflict of interest:
“where trial counsel is not authorized to practice law,” and where trial counsel “is
implicated in the very crime for which his or her client is on trial.” Id.; see also Waterhouse
v. Rodriguez, 848 F.2d 375, 383 (2d Cir. 1988) (refusing to expand automatic reversal for
conflicts of interest beyond these two situations).
8
Appellant does not claim that the Fourth Circuit has adopted a “per se reversal”
rule for conflicts of interest stemming from a government agency’s parallel investigation
of an attorney and his client. We decline to announce such a rule in this case.
13
Even if we were to adopt this approach, Brownlee’s conflict of interest would not
warrant per se reversal of Appellant’s convictions. The Second Circuit has explained that
the existence of a per se conflict hinges on “the similarity of counsel’s activities to [the
client]’s schemes and the links between them.” United States v. Cancilla, 725 F.2d 867,
870 (2d Cir. 1984). Applying this framework, the Second Circuit has found a per se
conflict of interest in a case where a defense attorney was believed to be participating in
insurance fraud schemes that were similar to those for which his clients were on trial, see
id. at 868, and in a case where a defendant was on trial for his participation in a heroin
smuggling scheme and there was evidence demonstrating “that the defense counsel was
. . . involved in heroin trafficking of his own,” United States v. Fulton, 5 F.3d 605, 607 (2d
Cir. 1993). In those cases, the substantial similarity between the attorneys’ misconduct
and the clients’ misconduct is clear. In contrast, the potential witness tampering that led
the DEA to subpoena Brownlee’s phone records and the fraudulent behavior underlying
Appellant’s criminal convictions are completely different types of misconduct. For that
reason, even under the Second Circuit approach that Appellant urges us to adopt, per se
reversal of Appellant’s convictions would be inappropriate, and Appellant would need to
demonstrate that Brownlee’s conflict of interest adversely affected his representation.
b.
Appellant posits two different ways in which he believes Brownlee’s conflict of
interest adversely affected his representation. He argues that because of the conflict,
Brownlee (1) failed to call Appellant’s wife, Rebecca Mosig, as a witness in his case-in-
chief; and (2) failed to vigorously cross-examine Carla Craft, one of the witnesses for the
14
United States. Even assuming that these are plausible alternative defense tactics 9 that were
objectively reasonable at the time of trial, Appellant cannot establish adverse effect under
Freund because he has not shown that Brownlee’s failure to pursue those tactics was in
any way linked to his conflict of interest.
Appellant attempts to establish a link between Brownlee’s conflict of interest and
the decisions not to call Rebecca Mosig as a witness and vigorously cross-examine Carla
Craft by arguing that pursuing these tactics “was inherently in conflict with” Brownlee’s
“other loyalties or interests.” United States v. Nicholson, 611 F.3d 191, 212 (4th Cir. 2010)
(internal quotation marks omitted). In Appellant’s view, being the subject of a witness
tampering investigation made Brownlee fearful of angering the DEA and caused him to
labor “under a conflict that provided him with a personal incentive to pull his punches.”
Appellant’s Br. 29. Appellant concludes that any decision by Brownlee to pursue a less
aggressive defense strategy -- such as not calling Rebecca Mosig as a witness or failing to
vigorously cross-examine Carla Craft -- was a manifestation of that fear and was
“necessarily” linked to the conflict, “even if only subconsciously.” Id. at 16, 29.
We do not doubt that a federal law enforcement agency investigating a defense
attorney while simultaneously investigating his client can create a serious conflict of
interest. Furthermore, we are sympathetic to Appellant’s concerns that an attorney who
finds himself in such a position may feel compelled to defend his client less vigorously.
9
Brownlee’s co-counsel cross-examined Craft at trial, so it is not clear that
Brownlee cross-examining Craft is a plausible alternative defense tactic.
15
However, the facts of this case simply do not bring these concerns to fruition. It is clear
from defense counsel’s filings -- especially those related to the motion to dismiss for
prosecutorial misconduct -- that Brownlee did not believe that he was the target of a bona
fide federal investigation or that he faced any criminal exposure. 10 Instead, Brownlee
viewed the purported investigation as an attempt by the United States to access confidential
attorney-client information. Because Brownlee did not believe that he was a target of a
legitimate criminal investigation, it was not inherently against his personal interest to
engage in an aggressive defense of Appellant.
Additionally, counsel for the United States explained at oral argument that it was
the DEA, not the United States Attorney’s office, that issued the administrative subpoena
that led to the production of Brownlee’s phone records. See Oral Argument at 19:00–
21:05, United States v. Purpera, No. 19-4158 (4th Cir. Nov. 2, 2020),
https://www.ca4.uscourts.gov/oral-argument/listen-to-oral-arguments. Even if this
subpoena made Brownlee wary of angering the DEA, it does not necessarily follow that he
would feel incentivized to pull his punches when litigating Appellant’s case.
10
See Appellant’s Reply in Supp. of Mot. to Dismiss Indictment at 2 (criticizing the
DEA’s decision to open an obstruction of justice investigation based on Brownlee’s
recommendation that a grand jury witness secure legal representation as “an extraordinary
position”), 3 (stating that it “is not believable” that the DEA subpoenaed Brownlee’s phone
records pursuant to an “obstruction of justice investigation into his conduct”), 4 (asserting
that “there was no bona fide investigation into Mr. Brownlee” and that there was “no
evidence” that the decision was made to investigate Brownlee for potential obstruction of
justice), 5 (claiming that “the government had no basis for the subpoena in a new or
ongoing investigation”).
16
Finally, the idea that Brownlee was pulling punches in order to appease the DEA is
not supported by the record. The district court docket demonstrates that Appellant’s trial
counsel -- including Brownlee -- pursued an aggressive litigation strategy. Brownlee
himself filed several important pre-trial and post-trial motions after learning that the DEA
had subpoenaed his phone records as part of its witness tampering investigation, including
a motion to exclude expert testimony, motion for judgment of acquittal, and motion for a
new trial. If Brownlee was indeed pulling punches in order to appease the DEA, it would
not make sense for him to file those motions, but stop short of calling Rebecca Mosig as a
witness or vigorously cross-examining Carla Craft.
B.
Jury Instructions
Appellant claims the district court erred by refusing two of his requested jury
instructions -- one related to Counts 1–68 (the acquiring controlled substances by fraud
charges), and one related to Count 69 (the failing to maintain required records charge). We
review a district court’s decision to refuse a proposed jury instruction for abuse of
discretion. See United States v. McLaurin, 764 F.3d 372, 378–79 (4th Cir. 2014).
However, “we conduct a de novo review of any claim that jury instructions incorrectly
stated the law.” Id. at 379.
1.
The district court instructed the jury that in order to find Appellant “guilty on each
of the 67 counts in Counts 1 through 68,” the United States “must prove each of the
following beyond a reasonable doubt:” (1) Appellant “acquired or obtained possession of
17
a controlled substance”; (2) Appellant “did so by fraud, forgery, deception, subterfuge, or
material representation”; and (3) Appellant “acted knowingly or intentionally.” J.A. 586.
The jury instructions also included definitions for several key words, such as “fraud,”
“misrepresentation,” and “material.”
Appellant argues that the district court’s instructions incorrectly stated the law of 21
U.S.C. § 843(a)(3) because they did not include a but-for causation requirement linking
Appellant’s false or misleading statements to his actual acquisition of the controlled
substances. Specifically, he asserts that the district court erred by not issuing the following
instruction:
The misrepresentation, fraud, forgery, deception, or subterfuge
must be an actual cause of how [Appellant] acquired or
obtained possession of the controlled substance. If he still
would have acquired or obtained possession regardless of the
misrepresentation, fraud, forgery, deception, or subterfuge,
then [the United States] has not proved [the] third element [of
Counts 1–68].
Appellant’s Br. 31–32.
Appellant’s argument necessarily assumes that but-for causation is an element of 21
U.S.C. § 843(a)(3). The Fifth and Eighth Circuits have recognized but-for causation as an
element of § 843(a)(3), 11 and the Sixth Circuit has assumed, without deciding, that it is an
element. See United States v. Bass, 490 F.2d 846, 857 (5th Cir. 1974), overruled on other
grounds by United States v. Lyons, 731 F.2d 243 (5th Cir. 1984); United States v. Wilbur,
11
The Third Circuit has also reached this conclusion, but in an unpublished decision.
See United States v. Adade, 547 F. App’x 142, 146 (3d Cir. 2013).
18
58 F.3d 1291, 1292 (8th Cir. 1995); United States v. Callahan, 801 F.3d 606, 622 (6th Cir.
2015). The Fourth Circuit has never squarely addressed whether this statute contains a but-
for causation requirement, and we need not do so today. Even assuming, as the Sixth
Circuit did in Callahan, that it does, we conclude that the district court’s jury instructions
were not in error.
When reviewing whether jury instructions correctly stated the law, “we do not view
a single instruction in isolation; rather we consider whether taken as a whole and in the
context of the entire charge, the instructions accurately and fairly state[d] the controlling
law.” United States v. Jefferson, 674 F.3d 332, 351 (4th Cir. 2012). The district court’s
instructions for Counts 1–68, when viewed as a whole, conveyed to the jury that it was
required to find a causal link between Appellant’s fraudulent purchase order forms and
Henry Schein’s decision to sell him controlled substances. The jury was instructed that it
needed to find, beyond a reasonable doubt, that Appellant acquired controlled substances
“by fraud, forgery, deception, subterfuge, or material misrepresentation.” J.A. 586
(emphasis supplied). The word “by” signaled to the jury that it had to find that Appellant
acquired the controlled substances because of his fraud or misrepresentations. See By,
Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/by (last
visited Dec. 15, 2020) (defining “by” as “through the agency or instrumentality of”).
Additionally, as part of its definition of the word “material,” the court explained that the
jury “must determine whether [an untrue] statement was one that a reasonable person might
have considered important in making his or her decision.” J.A. 587–88. This language
reiterated to the jury that it was necessary to evaluate more than simply whether
19
Appellant’s statements were untrue; it also needed to consider whether the statements were
likely to influence Henry Schein when the company was deciding whether to sell controlled
substances to Appellant.
2.
Count 69 charges Appellant with knowingly and intentionally omitting material
information from a report or record required to be kept, in violation of 21 U.S.C.
§ 843(a)(4)(A). This charge stems from Appellant’s failure to maintain a dispensing log
or other documentation showing his disposition of controlled substances. A medical
practitioner who regularly administers controlled substances is ordinarily required to
maintain such records pursuant to federal regulations. See 21 C.F.R. § 1304(b). However,
there is an exception to this record-keeping requirement that applies to practitioners who,
inter alia, administer controlled substances “in the lawful course of professional practice.”
Id. § 1304.03(d). 12
Appellant asserts that the district court’s instructions with respect to Count 69 were
flawed because the court did not instruct the jury that a medical practitioner acts within the
lawful course of professional practice if he acts in good faith. Specifically, Appellant
argues that the district court erred by refusing the following instruction:
If a physician prescribes or administers a drug in good faith,
then he has done so within the lawful course of professional
practice. A physician prescribes or administers a drug in good
12
This exception also requires that the medical practitioner not charge his patients
for the controlled substances. However, in this appeal, the primary issue with respect to
the exception is whether Appellant administered controlled substances in the lawful course
of professional practice.
20
faith in medically treating a patient when he does so for a
legitimate medical purpose in the usual course of medical
practice. Good faith means good intentions and the honest
exercise of best professional judgment as to the patient’s needs.
It means that the doctor acted in accordance with (what he
reasonably believed to be) the standard of medical practice
generally recognized and accepted in the United States.
Appellant’s Br. 36.
A district court’s refusal to provide a requested instruction is an abuse of discretion
“only if the instruction: (1) was correct; (2) was not substantially covered by the court’s
charge to the jury; and (3) dealt with some point in the trial so important, that failure to
give the requested instruction seriously impaired the defendant’s ability to conduct his
defense.” United States v. Savage, 885 F.3d 212, 223 (4th Cir. 2018).
The district court did not abuse its discretion by refusing Appellant’s proposed good
faith instruction because the instruction was not “correct.” To begin with, Appellant does
not point to any case that has recognized good faith as a defense to a § 843(a)(4)(A) charge,
and we cannot find one. Appellant also argues that the good faith defense should be
recognized in this case because it has been recognized in cases where physicians are
charged with distributing controlled substances in violation of 21 U.S.C. § 841. But
Appellant’s proposed instruction is an inaccurate statement of even the § 841 good faith
defense. We have made clear -- as has “every [other] court to specifically consider the
question” -- that the good faith standard set out in those cases’ jury instructions “must be
an objective one.” United States v. Hurwitz, 459 F.3d 463, 479 (4th Cir. 2006). Here,
Appellant proposed a subjective -- and therefore legally incorrect -- instruction on the good
faith defense.
21
In Hurwitz, we affirmed the district court’s refusal of a proposed good faith
instruction because, by defining good faith as “the doctor act[ing] according to what he
believed to be proper medical practice,” it “clearly set[] forth a subjective standard.” 459
F.3d at 478 (emphasis in original). Appellant’s proposed good faith instruction is similar
to the one we rejected in Hurwitz. See id. Like the Hurwitz instruction, Appellant’s
proposed instruction permits a doctor “to decide for himself what constitutes proper
medical treatment,” thereby setting forth a standard for good faith that is entirely
subjective. Id. Appellant attempts to justify his proposed instruction by arguing that it is
similar to the good faith instruction approved by the Sixth Circuit in United States v.
Voorhies, 663 F.2d 30, 34 (6th Cir. 1981), a case we cited favorably in Hurwitz. See 459
F.3d at 478. We are not persuaded. The instruction in Voorhies defined good faith as “an
observance of conduct in accordance with what the physician should reasonably believe to
be proper medical practice.” 663 F.2d at 34 (emphasis supplied). That definition of good
faith is meaningfully different from one that is based on what the physician actually
believed. A jury tasked with assessing what a physician should have believed must apply
an objective standard. In contrast, determining what a doctor actually believed requires a
jury to assess the doctor’s subjective point of view.
C.
Expert Witness Testimony
Appellant next claims the district court erroneously permitted the United States’
expert witness, Dr. John Burton, a physician and Chair of Emergency Medicine at the
Carilion Clinic in Roanoke, Virginia, to opine as to legal conclusions which Appellant
22
asserts Dr. Burton was not qualified to make. The United States introduced Dr. Burton’s
testimony as part of its effort to establish beyond a reasonable doubt that Appellant did not
qualify for the exception to 21 U.S.C. § 843(a)(4)(A)’s record-keeping requirement. As
explained previously, this exception applies to medical practitioners who, inter alia,
administer controlled substances “in the lawful course of professional practice.” 21 C.F.R.
§ 1304.03(d).
We review the admission of expert testimony for abuse of discretion. See United
States v. Landersman, 886 F.3d 393, 411 (4th Cir. 2018). It is generally an abuse of
discretion for the district court to admit “opinion testimony that states a legal standard or
draws a legal conclusion by applying law to the facts.” United States v. McIver, 470 F.3d
550, 562 (4th Cir. 2006). However, we have cautioned, “The line between a permissible
opinion on an ultimate issue and an impermissible legal conclusion is not always easy to
discern,” and “drawing that line requires a case-specific inquiry of the charges, the
testimony, and the context in which it was made.” United States v. Campbell, 963 F.3d
309, 314 (4th Cir. 2020).
We find no abuse of discretion in the admission of Dr. Burton’s testimony. In this
case, whether Appellant qualified for the exception to the record-keeping requirement
turned on whether he administered controlled substances in the lawful course of
professional practice. Dr. Burton never opined as to the legality or illegality of Appellant’s
conduct. In fact, the district court ordered that his testimony “stay[] away from the words
‘lawful’ and ‘legal’” because he “isn’t a legal expert.” J.A. 471–72. Rather, Dr. Burton’s
testimony primarily consisted of his opinions that Appellant’s conduct fell “outside the
23
usual course of professional practice.” Id. at 434, 439 (emphasis supplied). In McIver, we
held that similar expert testimony, that is, a physician’s opinion that a defendant’s conduct
“was outside the legitimate practice of medicine,” did not contain impermissible legal
conclusions because the language used by the witness fell “within the limited vernacular
that is available to express whether a doctor acted outside the bounds of [] professional
practice.” 470 F.3d at 556, 562. The same is true of Dr. Burton’s testimony. Therefore,
we affirm the admission of Dr. Burton’s expert testimony.
D.
Motion for Judgment of Acquittal
Appellant claims the district court erred by denying his motion for judgment of
acquittal with respect to Counts 1–20, 22–26, and 28–70. He asserts there was insufficient
evidence to support his convictions on these counts.
When reviewing the district court’s denial of a motion for judgment of acquittal
based on evidentiary sufficiency, we view “the evidence in the light most favorable to the
government” and will affirm so long as there is “substantial evidence to support the
conviction.” United States v. White, 771 F.3d 225, 230 (4th Cir. 2014). “Substantial
evidence is evidence that a reasonable finder of fact could accept as adequate and sufficient
to support a conclusion of a defendant’s guilt beyond a reasonable doubt.” Id. Defendants
face an uphill battle under this standard, as “the jury’s verdict must stand unless we
determine that no rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” United States v. Royal, 731 F.3d 333, 337 (4th Cir. 2013)
(emphasis supplied).
24
1.
Counts 1–20, 22–26, and 28–68 charge Appellant with violations of 21 U.S.C.
§ 843(a)(3), which provides, “It shall be unlawful for any person knowingly or
intentionally . . . to acquire or obtain possession of a controlled substance by
misrepresentation, fraud, forgery, deception, or subterfuge.” The indictment alleges
Appellant violated this provision by falsely asserting to Henry Schein “that the controlled
substances were dispensed to his patients” and by falsely denying that “any of the
controlled substances were used by him personally” or “that he used any of the controlled
substances in the treatment of his spouse or family or friends.” J.A. 23.
Appellant asserts the United States “failed to prove with any evidence that [he] did
not use any of the requested controlled substances to treat his patients.” Appellant’s Br.
46. This argument is inconsistent with the record. The United States introduced ample
evidence at trial demonstrating that Appellant did not use the controlled substances that he
purchased from Henry Schein to treat his patients. For example, Investigator Armstrong
testified that a DEA search of Appellant’s patient files “found that there were no records
of dispensing or administration for any of the drugs that were purchased from Henry
Schein.” J.A. 198. In addition, four different former or current employees of Appellant
testified that they never saw Appellant administer controlled substances to his patients.
Appellant also asserts that, even if the United States could prove that the purchase
order forms he submitted to Henry Schein were fraudulent, it cannot establish that his fraud
25
was a but-for cause of the company’s decision to sell him controlled substances. 13
Appellant’s argument in this regard proceeds as follows: Shaun Abreu, a senior manager
for Henry Schein, testified that had Appellant been truthful on the purchase order forms
about using the controlled substances to treat family members and friends, the company’s
“next step” would have been to consult the relevant Virginia regulations to determine
whether such treatment is permissible in the state. J.A. 310. The company’s research
would have revealed that while state regulations prohibit the prescribing of controlled
substances to family members, they do not prohibit the administering of controlled
substances to family members or friends. For this reason, Appellant concludes that Henry
Schein would have sold him the controlled substances even if he had answered the
questions in the purchase order forms honestly, so his fraud is not a but-for cause of his
acquisition of the drugs.
We first note that per the testimony at trial, Henry Schein actually relied on
Appellant’s purchase order forms when deciding whether to sell him controlled substances.
Shaun Abreu repeatedly testified that the answers to the questions contained in those forms
were material to Henry Schein, and further testified that had Appellant been honest about
using the controlled substances to treat family members and friends, the company “would
not have filled [his] order.” J.A. 414. This evidence is sufficient to establish that
13
Like Appellant’s argument that the district court erred by refusing his requested
jury instruction on causation, this argument necessarily assumes that 21 U.S.C. § 843(a)(3)
includes a but-for causation requirement. As we did when we analyzed the jury instruction
issue, we will assume, without deciding, that it does.
26
Appellant’s fraud was subjectively material to Henry Schein. However, that is not the end
of our inquiry, as the materiality standard in criminal fraud cases is an objective one. See
United States v. Raza, 876 F.3d 604, 620 (4th Cir. 2017). Objective materiality hinges not
on whether Henry Schein actually found Appellant’s purchase order forms to be material,
but whether a reasonable company would have done so under identical circumstances.
We conclude that sufficient evidence supports a jury finding that Appellant’s
statements on the purchase order forms were objectively material. Medical supply
distribution companies like Henry Schein are subject to certain DEA regulations. Abreu
explained in his trial testimony that, because of these regulations, it is in the best interest
of medical supply distribution companies to be selective about the medical practitioners to
whom they sell controlled substances, and to ensure that the practitioners use the controlled
substances in compliance with all applicable laws and regulations. A medical supply
distribution company selling controlled substances in Virginia, then, would certainly be
aware of 18 Virginia Administrative Code § 85-20-25, a state regulation that governs a
medical practitioner treating or prescribing for self or family. 14 As Appellant points out,
this section does not appear on its face to prohibit a medical practitioner from administering
controlled substances to family members or friends. However, it does make clear that a
practitioner may not prescribe controlled substances to family members, and may only
14
Section 85-20-25 provides, in relevant part, “Treating or prescribing shall be
based on a bona fide practitioner-patient relationship, and prescribing shall meet the criteria
set forth in § 54.1-3303 of the Code of Virginia,” and that, subject to exceptions not present
here, “[a] practitioner shall not prescribe a controlled substance to himself or a family
member.” 18 Va. Admin. Code § 85-20-25.
27
administer controlled substances to family members pursuant to a bona fide practitioner-
patient relationship.
Even though this regulation does not expressly prohibit the administering of
controlled substances to family members or friends, Appellant stating that he engaged in
that practice would have reasonably caused a medical supply distribution company to
decide against selling to him. For starters, administering controlled substances to family
members or friends raises questions about the existence of a bona fide practitioner-patient
relationship. Furthermore, a practitioner administering controlled substances to his family
members reasonably raises concerns about him prescribing to his family members as well.
In sum, although administering controlled substances to family members may not itself
violate Virginia medical regulations, a practitioner admitting that he engages in such
conduct could reasonably make a medical supply distribution company leery that the
practitioner would violate those regulations in some other way. For these reasons, we find
ample support in the record for the conclusion that Appellant’s misstatements were
objectively material, and reject Appellant’s argument that the purchase order forms did not
impact Henry Schein’s decision to provide him with the controlled substances.
The dissent posits that there is insufficient evidence to support Appellant’s
convictions on Counts 1–6, 17–20, 28, 40–43, and 55. These counts stem from Appellant’s
statement on the April 16, 2014 purchase order form that he does not “use any of the
controlled drug items . . . to treat family members or friends.” J.A. 309–10. As the dissent
acknowledges, “[T]his statement was undeniably false” because Appellant “treated
[Rebecca] Mosig with such substances.” Post at 40. However, the dissent submits that
28
this misstatement was not material to Henry Schein’s decision to fill the orders Appellant
placed in connection with the April 16, 2014 form. In the dissent’s view, because Appellant
and Rebecca Mosig were not yet married as of April 16, 2014, they were merely friends
when Appellant filled out and submitted that purchase order form. Accordingly, because
Virginia law does not prohibit practitioners from prescribing or administering controlled
substances to friends, the dissent concludes that Henry Schein would have sold controlled
substances to Appellant even if his answers on the purchase order form had been truthful.
The dissent’s conclusion is flawed in two respects. First, it ignores the fact that,
under Virginia law, a prescription for controlled substances “may be issued only to persons
. . . with whom the practitioner has a bona fide practitioner-patient relationship.” Va. Code
Ann. § 54.1-3303. 15 This requirement applies to everyone, including family members and
friends of a practitioner. It would be reasonable, then, that if Henry Schein consulted
relevant state law, it would be concerned not only with whether a practitioner treats his
friends with controlled substances, but also with whether the practitioner prescribes to his
friends outside the scope of a bona fide practitioner-patient relationship. Second, the
dissent does not take into account the fact that Appellant and Rebecca Mosig were married
on April 26, 2014 -- just ten days after Appellant filled out and submitted the April 16,
2014 purchase order form. See Br. for Appellant 47. Had Appellant truthfully answered
that form’s question about treating family members or friends, he would have had to
15
This quotation states Section 54.1-3303 as it existed when it was entered into
evidence by the United States. The current version of this section utilizes slightly different
language.
29
explain that he used the controlled substances to treat a woman who within a matter of days
would be converted from friend to wife. See Government Exhibit 5-3 (April 16, 2014
Controlled Substance Form) at 1, United States v. Purpera, No. 7:17-cr-79 (W.D. Va. Dec.
14, 2017; filed Feb. 2, 2018), ECF No. 114-3 (instructing Appellant to “Please explain” an
affirmative response to the question about using controlled drug items to treat family
members or friends). Henry Schein reasonably would have been troubled by this
information. As the dissent recognizes, “[A] sensible drug company might well be
concerned about the lack of a bona fide practitioner-patient relationship when a doctor
purports to treat family members, because a doctor in Virginia is prohibited from
prescribing controlled substances to family members.” Post at 42–43. These same
concerns would have been raised had Appellant been truthful when filling out the April 16,
2014 form, because his answers would have put Henry Schein on notice that he used the
company’s controlled substances to treat someone who was to become a family member in
a matter of days.
2.
Count 69 charges Appellant with knowingly failing to maintain records related to
his disposition of controlled substances, in violation of 21 U.S.C. § 843(a)(4)(A). The
primary dispute with respect to Count 69 is whether the United States met its burden of
proving beyond a reasonable doubt that Appellant did not qualify for the exception to
§ 843(a)(4)(A)’s record-keeping requirement. Pursuant to this exception, a medical
practitioner “is not required to keep records of controlled substances . . . which are
administered in the lawful course of professional practice.” 21 C.F.R. § 1304.03(d).
30
The district court found that Dr. Burton’s expert opinion that Appellant’s treatment
of his wife was outside the usual course of professional practice was “substantial evidence
from which a reasonable jury could find that [Appellant] did not administer controlled
substances ‘in the lawful course of professional practice.’” J.A. 609. Appellant contends
that even if Dr. Burton correctly opined that his actions violated the norms of the medical
profession, that evidence by itself does not establish that he did not qualify for the exception
to the record-keeping requirement. Appellant’s position in this regard is consistent with
the jury’s instructions for Count 69, which provided, “[V]iolations of . . . professional
norms alone are not sufficient” to prove that Appellant did not qualify for the exception.
Id. at 591. Nonetheless, Appellant’s argument is ultimately unavailing because it
incorrectly assumes that Dr. Burton’s testimony is the only evidence supporting the jury’s
finding that Appellant did not qualify for the exception.
The United States introduced ample evidence demonstrating that Appellant
acquired the controlled substances that he administered to his wife through fraudulent
means. Indeed, the jury convicted Appellant on 67 separate counts of that very crime. A
finding that Appellant acquired controlled substances by fraud inherently supports the
conclusion that his administering of those substances was not within the lawful course of
medical practice. It may be true that Appellant administering controlled substances to his
wife is not in itself a violation of any state or federal laws or regulations. However, in
determining whether Appellant qualified for the exception to § 843(a)(4)(A)’s record-
keeping requirement, the jury was required to assess not merely the ultimate administering
of the controlled substance to his wife, but rather the entire course of professional practice
31
leading up to that point. Here, Appellant’s course of practice began with an unlawful
acquisition of controlled substances. That finding alone supports a conclusion that
Appellant did not qualify for the exception to the record-keeping requirement, even if he
did not commit an additional unlawful act when he subsequently administered those
controlled substances to his wife.
3.
Count 70 charges Appellant with making a false statement to a federal investigator
in violation of 18 U.S.C. § 1001(a)(2). The indictment alleges Appellant falsely stated to
Investigator Armstrong that he kept records related to the dispensing of controlled
substances in his patient files and that he maintained a separate dispensing log related to
those drugs. We hold that the United States introduced sufficient evidence to support a
conviction on Count 70 based on either of these statements.
a.
Appellant argues that his statement to Investigator Armstrong about the records he
maintained in his patient files cannot support a conviction under § 1001(a)(2). According
to Appellant, his statement to Investigator Armstrong was only that he maintained records
in his patient files related to the disposition of some controlled substances, but not
necessarily the substances he purchased from Henry Schein. Appellant concludes that
since he maintained records related to his administering of lidocaine -- a controlled
substance under Virginia law -- in the patient files, his statement to Investigator Armstrong
was literally true and cannot support a conviction.
32
This argument is unavailing. Appellant is correct that a § 1001(a)(2) conviction
cannot be premised on a literally true statement, see United States v. Good, 326 F.3d 589,
592 (4th Cir. 2003), but this defense “applies only where a defendant’s allegedly false
statements were undisputedly literally true.” United States v. Sarwari, 669 F.3d 401, 406
(4th Cir. 2012) (emphasis in original) (internal quotation marks omitted). The defense does
not apply to “an answer [that] would be true on one construction of an arguably ambiguous
question but false on another.” Id. at 407 (alteration in original). Here, there is ambiguity
surrounding the precise nature of Investigator Armstrong’s question about the patient files.
Appellant asserts that Investigator Armstrong was asking about whether he maintained
records in those files related to any controlled substances, while Investigator Armstrong
testified at trial that he and Appellant discussed only the “oxycodone, Xanax, and Valium”
that he purchased from Henry Schein, and “those are the drugs” that Appellant told him
were “recorded in the patient files.” J.A. 179. A reasonable finder of fact could conclude
from this testimony that Investigator Armstrong’s question specifically pertained to the
controlled substances that Appellant purchased from Henry Schein. Furthermore, a
reasonable finder of fact could conclude that Appellant answered this question with a false
statement.
b.
Appellant concedes that he falsely represented to Investigator Armstrong that he
maintained a separate dispensing log for the recording of his administration of controlled
substances. He argues, however, that this statement cannot sustain a § 1001(a)(2)
33
conviction because he “took back” the claim within a minute of making it, before the
statement could “impact or alter” the DEA’s investigation. Appellant’s Br. 51.
Title 18 U.S.C. § 1001(a)(2) prohibits “any materially false, fictitious, or fraudulent
statement or representation.” For purposes of this statute, a “materially false” statement is
one that “has a natural tendency to influence, or is capable of influencing, the decision-
making body to which it was addressed.” United States v. Hamilton, 699 F.3d 356, 362
(4th Cir. 2012). The United States was not required to prove that Appellant’s “false
statement actually influenced the [DEA]’s decision-making process.” Id. It is therefore
irrelevant that Appellant walked back his statement before it could impact the DEA’s
investigation.
E.
Sentence
Appellant’s final claim is that his sentence is procedurally and substantively
unreasonable. He asserts that the district court based its decision to impose an above-
Guidelines sentence of 20 months of imprisonment on unfounded speculation about who
ultimately used many of the controlled substances that Appellant purchased from Henry
Schein, and whether those substances contributed to the opioid epidemic.
“We review all sentences -- whether inside, just outside, or significantly outside the
Guidelines range” -- for abuse of discretion. United States v. Blue, 877 F.3d 513, 517 (4th
Cir. 2017) (internal quotation marks omitted). We begin by ensuring that the district court
did not commit any significant procedural errors. See United States v. Carter, 564 F.3d
325, 328 (4th Cir. 2009). Such errors include “failing to calculate (or improperly
34
calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider
the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or
failing to adequately explain the chosen sentence -- including an explanation for any
deviation from the Guidelines range.” Id. “If, and only if, we find the sentence” to be
procedurally reasonable, we proceed to an assessment of its substantive reasonableness.
Id. At this stage, we determine whether, under the “totality of the circumstances, including
the extent of any variance from the Guidelines range,” the district court abused its
discretion in imposing the sentence. Gall v. United States, 552 U.S. 38, 51 (2007). When
reviewing an above-Guidelines sentence, we are bound to “give due deference to the
district court’s decision that the § 3553(a) factors, on a whole, justify the extent of the
variance.” United States v. Zuk, 874 F.3d 398, 409 (4th Cir. 2017). At the same time,
however, we recognize that “inherent in the idea of ‘discretion’ is the notion that it may,
on infrequent occasion, be abused.” Id.Appellant is correct that, at sentencing, the district court mentioned that many of the
pills that he purchased from Henry Schein were unaccounted for. See J.A. 684 (“The facts
would indicate that the majority of the drugs were not given to [Appellant]’s wife. I don’t
know where they are. There’s no evidence to that.”). However, these statements do not
affect the procedural or substantive reasonableness of Appellant’s sentence because they
were irrelevant to the district court’s sentencing decision. The court made explicitly clear
that it did not consider “the number of opioid pills available to [Appellant]’s wife” for
purposes of calculating Appellant’s sentence. Id. at 681. Instead, it considered the number
of pills given to Appellant’s wife “only for purposes of checking the factual basis of one
35
of [his] arguments,” that is, Appellant’s argument that he committed a “crime of love” and
only obtained the controlled substances so he could treat his sick wife. Id. Additionally,
contrary to Appellant’s contention, the district court never speculated as to whether the
controlled substances fraudulently acquired by Appellant contributed to the opioid
epidemic.
Appellant does not claim that the district court committed any other errors at the
sentencing stage of his proceedings, and our review of the record does not reveal any. The
sentence is procedurally reasonable, as the court properly calculated the advisory
Guidelines range as a term of imprisonment of six to 12 months, expressly considered the
factors set out in 18 U.S.C. § 3553(a), and explained that its decision to impose an above-
Guidelines sentence of 20 months of imprisonment was based on the serious nature of the
offenses, specifically the types and quantities “of the controlled substances obtained” and
the “length of time over which the offenses occurred.” J.A. 684. The sentence, including
the eight-month upward variance from the Guidelines range, is also substantively
reasonable, as it is justified by the § 3553(a) factors, particularly the need for a sentence to
“reflect the seriousness of the offense” and “promote respect for the law.”
III.
For the reasons set forth herein, Appellant’s convictions on Counts 1–20, 22–26,
and 28–70, as well as the sentence imposed by the district court, are
AFFIRMED.
36
DIAZ, Circuit Judge, concurring in part and dissenting in part:
Dr. Frank Purpera submitted false statements on two purchase order forms so that
he could acquire controlled substances from Henry Schein, Inc. He then lied to a federal
investigator about his administration of, and recordkeeping for, those substances. For the
reasons ably explained by the majority, I agree that we should affirm most of Purpera’s
convictions.
But I think the evidence is insufficient to support Purpera’s convictions on Counts
1–6, 17–20, 28, 40–43, and 55. These counts arise from the first purchase order form and
related addenda that Purpera submitted to Henry Schein, 1 and are among the counts
alleging that Purpera fraudulently obtained controlled substances in violation of 21 U.S.C.
§ 843(a)(3). 2 Contrary to the government’s assertions, the form in question contains but
one false statement. And as to that statement, the record doesn’t contain substantial
evidence that Purpera’s dishonesty was subjectively material to Henry Schein’s decision
to fill the order, or that it would have been objectively material to a reasonable drug
distributor’s decision to fill such an order. I would therefore reverse the convictions on
those counts and remand for resentencing.
1
Although Purpera didn’t move for acquittal on the counts arising from the addenda,
as explained infra, Purpera’s arguments as to the counts arising from the first form
necessarily apply to those arising from the addenda.
2
Purpera obtained thousands of tablets of oxycodone, hydrocodone, testosterone,
alprazolam, diazepam, and tramadol.
37
I.
Dr. Purpera had never purchased controlled substances from Henry Schein before
the events leading up to his offenses. Henry Schein requires a new customer like Purpera
to fill out a questionnaire form attached to the initial purchase order so that the company
can comply with relevant federal and state regulations. When a medical provider later
seeks to order controlled substances not listed on the original form, Henry Schein requires
the provider to list the new drugs in an addendum. But because an addendum includes only
basic information related to the new order (such as quantity and frequency of the drugs),
Henry Schein refers back to the information in the customer’s original questionnaire when
deciding whether to ship controlled substances requested in an addendum.
Purpera submitted his first questionnaire form and order to Henry Schein on April
16, 2014 and later submitted two addenda supplementing that order. Counts 1–6, 28, and
40–43 represent the drugs fraudulently obtained through the April 2014 form, and Counts
17–20 and 55 represent those fraudulently obtained through the addenda. 3
Each count charges Purpera with violating 21 U.S.C. § 843(a)(3), which makes it
unlawful for any person to knowingly “acquire or obtain possession of a controlled
substance by misrepresentation, fraud, forgery, deception, or subterfuge.” The indictment
alleges that Purpera made three false statements in the questionnaire forms: (1) that he was
not ordering drugs for his personal use, (2) that he dispensed the drugs to his patients, and
3
At Henry Schein’s request, Purpera later submitted a second questionnaire form.
The drugs obtained via that form, and a related addendum, support the remaining fraudulent
acquisition counts against Purpera.
38
(3) that he did not use the drugs “in the treatment of his spouse or family or friends.” J.A.
23.
The indictment doesn’t allege that the addenda contained any falsehoods. But
because Henry Schein consults the original form before deciding to fill an order from a
related addendum, the counts arising from the addenda are based on the same alleged
misrepresentations. Accordingly, I look to that first form to see if the statements described
in the indictment were false when Purpera made them. 4
First, Purpera’s representation on the April 2014 form that he wasn’t self-
medicating was truthful. Purpera had answered “No” to the question, “Do you use any of
the controlled drug items you order for your own personal use?” J.A. 311. At trial, the
government contended that this answer was false because Purpera used the testosterone
ordered from Henry Schein. But as the district court recognized, Purpera didn’t order the
testosterone until August 2014, months after he submitted the first form. Because
Purpera’s response to the question about self-medicating was true at the time, the district
court acquitted Purpera of Count 21, which alleged his fraudulent acquisition of
testosterone through the first form and related addenda.
Nor did Purpera lie on the April 2014 form about dispensing controlled substances
to his patients. Purpera circled “1–10%” in response to the question, “Please circle the
4
Henry Schein’s instructional materials for its forms don’t require a customer to
update information contained in an original questionnaire form. In fact, they suggest the
opposite, stating several times that the company would “request additional information”
from the customer if necessary. J.A. 219–20.
39
approximate percentage of patients that are treated in your office with controlled
substances daily.” J.A. 223. The evidence at trial was that Purpera administered at least
some of the drugs to Rebecca Mosig, 5 whom he married ten days after submitting the April
2014 form. Indeed, Purpera kept a patient file for Mosig, which included several
prescriptions that he wrote her. The government has since conceded that Mosig may
account for the 1–10% of patients treated with controlled substances in Purpera’s office.
Thus, Purpera’s representation about treating patients can’t support the counts arising from
the first form and related addenda either.
This leaves one remaining alleged misrepresentation on the April 2014 form:
Purpera’s “No” answer to Question 15, which asked, “Do you use any of the controlled
drug items you order to treat family members or friends?” J.A. 309–10. Because Purpera
treated Mosig with such substances, this statement was undeniably false. But to be clear,
Purpera’s answer was false because Mosig was his friend (albeit a special one), not because
she was part of Purpera’s family (since they hadn’t yet tied the knot).
This distinction matters, because not every lie violates 21 U.S.C. § 843(a)(3). As
the majority explains, the false statement must also have been material to a drug
distributor’s decision to fill an order of controlled substances. Materiality can be analyzed
under a subjective standard (i.e., whether the fraud caused the particular drug supplier
5
Purpera claimed that he administered the “vast majority” of the controlled
substances obtained from Henry Schein to his wife. J.A. 442. But as the district court
noted, there’s a significant discrepancy between the quantity of drugs Purpera ordered and
the quantity he dispensed to Mosig.
40
involved—here, Henry Schein—to ship the drugs), or an objective standard (i.e., whether
the fraud would have caused a reasonable drug supplier to ship the drugs). As the majority
correctly notes, the precedent in this circuit suggests that “the correct test for materiality
[in a criminal fraud case with a private victim] . . . is an objective one.” 6 United States v.
Raza, 876 F.3d 604, 621 (4th Cir. 2017). But because the majority spends some time
discussing whether Henry Schein actually relied on Purpera’s misrepresentation, I do as
well. Here, Purpera’s false statement simply was not material under either standard.
I begin, as the majority did, with subjective materiality. Shaun Abreu testified for
Henry Schein that the answer to Question 15 on the April 2014 form was material because
the company would “consult” and “adhere to” relevant state law on using controlled drugs
to treat family and friends. J.A. 310. Critically, Virginia law prohibits physicians from
prescribing controlled substances to family members, but it treats friends like any other
patient. 18 Va. Admin. Code § 85-20-25. As a consequence, Abreu stated that Henry
Schein wouldn’t fill an order in Virginia for controlled substances if a doctor intended to
use them to treat family members. See J.A. 310–11. But, said Abreu, the company would
fill such an order in a state that permitted using controlled substances to treat family
members. See J.A. 409–10. Abreu also explained that because Virginia law “didn’t really
6
Some of our sister circuits, however, appear to evaluate violations of 21 U.S.C.
§ 843(a)(3) under a subjective standard of materiality. See, e.g., United States v. Callahan,
801 F.3d 606, 622 (6th Cir. 2015); United States v. Adade, 547 F. App’x. 142, 146 (3d Cir.
2013); United States v. Bass, 490 F.2d 846, 857 n. 11 (5th Cir. 1974), overruled on other
grounds by United States v. Lyons, 731 F.2d 243 (5th Cir. 1984).
41
address friends,” Henry Schein later removed that part of Question 15 from the form
entirely. See J.A. 406.
Given Abreu’s testimony and the particulars of Virginia law, a false answer to
Question 15 on the April 2014 purchase order form couldn’t have been the cause—“but
for” or otherwise—of Henry Schein’s decision to sell Purpera controlled substances to treat
Mosig. Even if Purpera had answered truthfully, the company would have filled the order
because doctors in Virginia aren’t barred from treating friends. Henry Schein’s decision
to later remove the question further confirms that Purpera’s false statement as to his use of
controlled substances to treat his friend was immaterial to Henry Schein.
On objective materiality too, the majority’s analysis falls short. There’s simply no
evidence that, in light of Virginia law, a reasonable drug distributor would have viewed as
objectively material a doctor’s truthful answer about the use of controlled substances to
treat friends. While the majority suggests a reason (i.e., that friendship could indicate the
absence of a bona fide practitioner-patient relationship), the majority’s inability to cite to
the record on this point is telling. Specifically, no testimony—lay or expert—speaks to
what a reasonable distributor would have considered material with respect to the treatment
of friends and why.
The record shows that a sensible drug company might well be concerned about the
lack of a bona fide practitioner-patient relationship when a doctor purports to treat family
members, because a doctor in Virginia is prohibited from prescribing controlled substances
42
to family members. 7 But that concern is tenuous at best when it comes to friends, who
(under Virginia law) are in the same position as any other patient.
In sum, Purpera lied in response to Question 15 in the April 2014 form with respect
to his treatment of friends, but his misrepresentation wasn’t material to his acquisition of
any controlled substances. And because there are no other falsehoods on the April 2014
form, Purpera couldn’t have fraudulently acquired the controlled substances ordered in that
first form and the related addenda.
* * *
For these reasons, I can’t agree with my colleagues that the government offered
substantial evidence to support Purpera’s convictions on Counts 1–6, 17–20, 28, 40–43,
and 55. Because I would instead reverse those convictions and remand for resentencing, I
am unable to join Part II.D.1 of the majority opinion.
7
For this reason, among others, Purpera’s convictions on the counts arising from
his second form and the related addendum are sound. By the time Purpera submitted the
second form, Mosig was his wife, so his response “No” to the amended Question 15, which
asked “Do you use any controlled substances to treat family members?” was false. J.A.
346. And given Virginia law, the answer was material (and reasonably so) to Henry
Schein’s decision to fill the order.
43