United States v. Harold Spear, III , 577 F. App'x 726 ( 2014 )

FILED
NOT FOR PUBLICATION JUN 05 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-10124
Plaintiff - Appellee, D.C. No. 1:08-cr-00128-DAE-1
v.
MEMORANDUM*
HAROLD C. SPEAR, III, M.D.,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 12-10125
Plaintiff - Appellee, D.C. No. 1:07-cr-00299-DAE-1
v.
HAROLD C. SPEAR, III, M.D.,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Hawaii
David A. Ezra, District Judge, Presiding
Argued and Submitted October 8, 2013
Honolulu, Hawaii
Before: KOZINSKI, Chief Judge, and FISHER and WATFORD, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Harold Spear appeals his conviction by guilty plea to five counts of
knowingly and intentionally distributing controlled substances outside the usual
course of professional practice and not for a legitimate medical purpose. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.1
1. There was no plain error in the change of plea colloquy. Spear admitted
dispensing controlled substances outside the usual course of professional medical
practice and not for a legitimate medical purpose. That is sufficient to establish
illegal distribution. See United States v. Black, 512 F.2d 864, 866 & n.2, 868 (9th
Cir. 1975).
2. There was a sufficient factual basis to support Spear’s guilty plea. See
United States v. Neel, 547 F.2d 95, 96 (9th Cir. 1976) (per curiam). Spear admitted
that he prescribed controlled substances without conducting a face-to-face visit or
obtaining any objective data supporting the prescription, and that he signed
prescriptions in blank. When his staff issued a prescription using these blank
forms, the patient was charged between $60 and $100 in cash or credit card
payments. Because “[c]ulpable intent . . . can be inferred from the defendant’s
conduct and from the surrounding circumstances,” United States v. Bucher, 375
1
In a concurrently filed opinion, we conclude that the appellate waiver in
Spear’s plea agreement does not preclude our review of the merits of this appeal.
2
F.3d 929, 934 (9th Cir. 2004), there was a sufficient factual basis for Spear’s guilty
plea. See also United States v. Feingold, 454 F.3d 1001, 1008 (9th Cir. 2006).
3. The government did not breach the plea agreement by introducing
uncharged prescriptions as evidence of relevant conduct during the sentencing
hearing. The government did not explicitly promise to limit relevant conduct to
the counts that were charged but dismissed, and Spear never objected to the
admission of these uncharged prescriptions, either during the sentencing hearing or
in his motions to withdraw his guilty plea.
4. The district court did not abuse its discretion by denying Spear’s motion
to withdraw his guilty plea. The court applied the correct standard of review, held
an evidentiary hearing and carefully considered but rejected the arguments
supporting Spear’s motion. See United States v. Davis, 428 F.3d 802, 806 (9th Cir.
2005). The court properly considered Spear’s delay in filing that motion to
evaluate the credibility of his stated reasons for seeking to withdraw his plea.
AFFIRMED.
3