UNITED STATES v. HUBBARD (2019)

ORDER

Lonnie W. Hubbard, a federal prisoner, appeals his convictions for conspiracy to distribute prescription medication and seventy related counts and the 360-month term of imprisonment imposed by the district court. Counsel indicates that Hubbard has directed counsel to request oral argument but moves to withdraw. This case has been referred to a panel of the court that, upon examination, unanimously agrees that oral argument is not needed. See Fed. R. App. P. 34(a).

In 2015, the United States filed a thirty-eight count indictment against Hubbard, a pharmacist; his company, Rx Discount of Berea, PLLC (“Rx Discount”); his wife; and six others. The indictment alleged that the defendants conspired to distribute oxycodone and pseudoephedrine; distributed oxycodone, pseudoephedrine, and hydrocodone; failed to obtain proper identification from persons purchasing pseudoephedrine; maintained a drug premises; and conspired to commit money laundering and other fraudulent financial transactions. Two superseding indictments were subsequently filed, bringing the total number of charges against Hubbard to seventy-three. An eight-day trial was held in February 2017. During trial, Counts 7 and 47 were dismissed on the motion of the United States. The jury found Hubbard guilty on the remaining seventy-one charges and the district court imposed a total term of imprisonment of 360 months, to be followed by three years of supervised release. The district court also ordered criminal forfeiture of real and personal property, as well as cash. Hubbard filed a motion for a new trial, which was overruled.

On appeal, Hubbard's counsel filed a motion to withdraw, pursuant to Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Sixth Circuit Rule 12(c)(4)(C), notifying this court of a lack of good-faith issues to appeal. Appellate counsel explained that, after a review of the court record and transcripts, as well as correspondence with Hubbard, he identified the following issues of possible merit: (1) the district court erred in admitting improper character evidence, in violation of Federal Rule of Evidence 404(b), as well as certain other evidence; (2) the evidence was insufficient to convict Hubbard of crimes where he was merely acting as a pharmacist and no conspiracy was demonstrated; (3) the district court erred in permitting opinion testimony by case agents absent a dual-role cautionary jury instruction; (4) the district court otherwise failed to instruct the jury properly as to conspiracy, deliberate ignorance, and operating and maintaining a drug-involved premises; and (5) the district court erred in sentencing Hubbard to 360 months of incarceration and ordering criminal forfeiture. Counsel determined that these arguments would be frivolous, however. Hubbard responded to counsel's motion to withdraw, raising the potential claims submitted by counsel and also alleging that (6) the district court erred by denying his motion for a new trial; (7) his indictment was constructively amended; (8) cumulative error violated his right to due process and a fair trial; and (9) Count 60 of the indictment failed to state an offense.

We subsequently entered an order granting counsel's motion to withdraw, appointing new counsel under the Criminal Justice Act, and allowing the filing of supplemental briefs following the appointment of counsel. Although new counsel was appointed, he filed a motion to withdraw, pursuant to Anders, stating that he had nothing to add to original counsel's brief. He did not supplement his motion with a supplemental Anders brief. Hubbard filed a supplemental response, restating the arguments raised in his original response. After independently examining the record pursuant to Penson v. Ohio, 488 U.S. 75, 82-83, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), and the briefs of counsel and Hubbard, the panel agrees that counsel's motion to withdraw should be granted because no grounds for appeal can be sustained.

Admission of Evidence

First, there are no apparent errors in the admission of evidence. Prior to trial, Hubbard filed a motion in limine to exclude certain evidence, which the district court overruled. Hubbard now asserts that the following evidence was improperly admitted under Rule 404(b) because it was unfairly prejudicial: (a) evidence that Hubbard's self-certification of online training to sell certain chemicals had lapsed during the time of the conspiracy; (b) a photograph of cash taken during a traffic stop; (c) evidence of misfiled prescriptions; (d) evidence of fronting pills; (e) evidence of double-billing; and (f) improperly selling pseudoephedrine in bottles rather than blister packs.

Rule 404(b) provides, in relevant part, that “[e]vidence of a crime, wrongs, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character.” “Res gestae evidence, also described as ‘background’ or ‘intrinsic’ evidence, is ‘an exception’ to the Rule 404(b) bar on propensity evidence,” however. United States v. Gibbs, 797 F.3d 416, 423 (6th Cir. 2015) (quoting United States v. Adams, 722 F.3d 788, 810 (6th Cir. 2013)). We review a district court's evidentiary rulings for an abuse of discretion. United States v. Rodriguez-Lopez, 565 F.3d 312, 314 (6th Cir. 2009).

The record demonstrates that the district court analyzed the challenged evidence pursuant to the analysis developed in this circuit. See United States v. Ayoub, 498 F.3d 532, 547 (6th Cir. 2007). The court determined, however, that the evidence was not actually propensity evidence under Rule 404(b), but rather was intrinsic to the crimes charged. No arguable issue could be raised on appeal that this was an abuse of discretion. The lapse of Hubbard's self-certification and his selling of pseudoephedrine in bottles rather than blister packs were relevant to the conspiracy and pseudoephedrine charges (Counts 1, 2-6, 8-14), as well as defenses to be raised. Evidence of misfilled prescriptions was intrinsic to the conspiracy and distribution charges where there was evidence that Hubbard filled a prescription for oxycodone in July 2015, during the time of the conspiracy, that was not signed by a physician and that he filled the 5 mg prescription with 10 mg pills. Evidence that Hubbard “loaned” pills to patients without prescriptions or before the refill date of the prescription and that the practice was illegal was intertwined with the distribution of oxycodone counts (Counts 49-59). Evidence that Hubbard required patients to pay cash for medications and then also billed Medicare or Medicaid was relevant to the distribution counts (Counts 16-42). And the photograph of the cash was relevant to proving his cash drug sales and money laundering (Counts 62-73).

Hubbard's overriding argument with respect to the admission of this evidence appears to be that it was prejudicial because there were alternative, innocent explanations for these facts. Even if this evidence has alternative explanations, however, those explanations do not make it irrelevant to the charged acts. “[A]ll evidence tending to prove guilt is prejudicial to a criminal defendant. If it were otherwise, the [prosecution] would not produce it as evidence and the court would not admit it as relevant.” Bey v. Bagley, 500 F.3d 514, 522 (6th Cir. 2007). Thus, there is no good-faith basis to argue that the district court abused its discretion by admitting this evidence.

Sufficiency of the Evidence

Next, no arguable issue for appeal could be raised in connection with the sufficiency of the evidence. We will not entertain a defendant's challenge to the sufficiency of the evidence on appeal unless the defendant moved for a judgment of acquittal under Rule 29 at the close of the government's case-in-chief and at the close of all the evidence. United States v. Williams, 940 F.2d 176, 180 (6th Cir. 1991). Specificity in a Rule 29 motion is not required, but when a defendant makes a motion on specific grounds, all grounds not specified in the motion are waived. United States v. Dandy, 998 F.2d 1344, 1356-57 (6th Cir. 1993).

At the close of the government's case-in-chief, Hubbard's counsel moved for a judgment of acquittal under Federal Rule of Criminal Procedure 29 for insufficient evidence. Counsel stated, “I think specifically mention [sic] was 49 through 59 on the ․ second superseding indictment. I don't think they put any information on at all about lack of medical need ․ of those people on those counts.” At the close of all the evidence, Hubbard's counsel stated “the defense would renew our Rule 29 motions, same reasons and same specifics as 49 through 59 counts.” Because Hubbard's Rule 29 motion was made as to Counts 49 to 59 only, which related to the distribution of oxycodone, his challenges to the sufficiency of the evidence as to his other convictions are forfeited.

When reviewing a conviction for insufficient evidence, we must inquire “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). We will “reverse a judgment for insufficiency of evidence only if, viewing the record as a whole, the judgment is not supported by substantial and competent evidence.” United States v. Blakeney, 942 F.2d 1001, 1010 (6th Cir. 1991).

Federal law states that: “[i]t shall be unlawful for any person knowingly or intentionally to ․ distribute ․ a controlled substance.” 21 U.S.C. § 841(a)(1). This court long ago held that “the language in § 841(a)(1) and 21 C.F.R. § 1306.04(a) clearly defines the pharmacist's responsibilities that give rise to conduct that constitutes an unlawful distribution of a prescription drug.” United States v. DeBoer, 966 F.2d 1066, 1068-69 (6th Cir. 1992). “[K]nowingly distributing prescriptions outside the course of professional practice is a sufficient condition to convict a defendant under the criminal statutes relating to controlled substances.” United States v. Volkman, 797 F.3d 377, 386 (6th Cir. 2015) (citation omitted).

Viewing the evidence presented in a light most favorable to the government, a rational jury could find that Hubbard knowingly and unlawfully distributed oxycodone. According to his own testimony, Hubbard worked as a pharmacist for about eleven years before he opened Rx Discount, and he was aware that he had a legal duty to ascertain his customers’ medical needs. However, the evidence established that Hubbard ignored numerous red flags about the prescriptions that were coming into his pharmacy in contravention of standard pharmacy practice, warnings from colleagues and industry professionals, and even common sense. The evidence demonstrated that he did the bare minimum to “establish” a relationship with the individuals who were coming to purchase controlled substances, he asked few—if any—questions of the purchasers of controlled substances regarding their legitimate medical needs, and he continued to sell to individuals that had been arrested for offenses involving controlled substances. Moreover, other pharmacists in the community would not fill the prescriptions that Hubbard was filling, and Hubbard was made aware by multiple drug wholesalers that he was selling too much oxycodone. Despite Hubbard's argument that he filled prescriptions for customers who testified at trial that they had real injuries and medical needs that required prescription medication, a jury could rationally conclude that Hubbard abdicated his duty as a pharmacist to ensure that each of those prescriptions was for a legitimate medical need, even in light of the witnesses’ alleged injuries or conditions. No arguable issue could be raised on appeal to challenge the sufficiency of the evidence as it related to Counts 49 to 59.

Jury Instructions

Hubbard next challenges several aspects of the jury instructions. He first asserts that the district court erred in permitting opinion testimony by case agents Jill Lee, Shannon Allen, and Paula York absent a dual-role cautionary jury instruction. Because Hubbard did not object to the lack of such an instruction below, our review is limited to plain error, deciding “whether the instructions, when taken as a whole, were so clearly wrong as to produce a grave miscarriage of justice.” United States v. Miller, 734 F.3d 530, 538 (6th Cir. 2013) (quoting United States v. Sanderson, 966 F.2d 184, 187 (6th Cir. 1992)).

Federal Rule of Evidence 701 allows non-experts to give “testimony in the form of an opinion” only to the extent the testimony “is: (a) rationally based on the witness's perception; (b) helpful to clearly understanding the witness's testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of [Federal] Rule [of Evidence] 702.” Lee, Allen, and York—who were all licensed pharmacists—testified as to their training and what they had experienced while working in or observing other pharmacies. They provided opinions that the practices of Rx Discount were outside the norm and that Hubbard was not meeting his obligation to ensure that the drugs he was dispensing were for legitimate medical needs. With respect to York, the district court instructed the jury that she testified as an opinion witness and it was up to the jury to decide how much weight to give to her opinion; in doing so, the court instructed that the jury could consider her qualifications and how she reached her conclusions.

While neither Lee nor Allen could have explained why they would be concerned about the practices of Rx Discount without speaking about their specialized knowledge of the pharmacy industry, any error in failing to give a cautionary instruction as to Lee and Allen did not affect Hubbard's substantial rights. Because of the instruction given on York's testimony, the jury was aware of how to evaluate a witness's opinion and many of the concerns that Lee and Allen raised were also raised by other witnesses, including two other pharmacists whose opinions Hubbard has not challenged. No non-frivolous issue could be raised on appeal that the failure of the district court to give a cautionary instruction as to Lee and Allen resulted in a grave miscarriage of justice.

Hubbard next argues that the district court otherwise failed to instruct the jury properly as to conspiracy, making it unclear as to whether the jury knew that, to find him guilty, they had to find that he conspired to distribute oxycodone, pseudoephedrine, or both. He also claimed that this resulted in a constructive amendment of his indictment. The record refutes Hubbard's claim, however, and establishes that the jury was clearly instructed as to conspiracy. No non-frivolous argument could therefore be raised as to this instruction or regarding a claim that Hubbard's indictment was constructively amended.

Hubbard next challenges the instruction on his state of mind. In part, this instruction stated: “if you're convinced that the defendant deliberately ignored a high probability that others were using and/or distributing pseudoephedrine or oxycodone without a legitimate medical purpose, then you may find that the defendant knew that others were using and/or distributing these substances without a legitimate medical purpose.” Hubbard argues that the instruction was misleading in that pseudoephedrine does not require a medical purpose to be sold and that there were no allegations that “others were using” pseudoephedrine illegally. He asserts that this allowed the jury to convict him of selling pseudoephedrine recklessly.

No arguable issue could be raised in connection with this instruction. Counsel did not object to the instruction and no plain error is evident. There was testimony by multiple witnesses that they used the pseudoephedrine purchased at Rx Discount to manufacture methamphetamine—an illegal activity. Hubbard's recklessness argument also fails. The district court specifically instructed the jury that “[c]arelessness, negligence, or foolishness ․ is not the same as knowledge, and it's not enough to convict.”

Hubbard also argued that it was plain error for the district court not to instruct on “good faith.” No non-frivolous argument could be raised in connection with this claim, however. Not only did counsel not object to the lack of a good-faith instruction, but also the judge reviewed with the jury the provisions of 21 U.S.C. § 841(a)(1) and further instructed them that, in order to convict Hubbard, they had to find that he was aware that he was distributing oxycodone without a legitimate medical purpose and that the pseudoephedrine he was selling was being used to manufacture illegal drugs. These instructions effectively informed the jury of the good-faith defense. See United States v. Carroll, 518 F.2d 187, 189-90 (6th Cir. 1975) (citing White v. United States, 399 F.2d 813, 816-17 (8th Cir. 1968)).

Nor can any non-frivolous argument be raised in connection with the jury instructions on the charge of operating and maintaining a drug-involved premises, Count 60 of the indictment, or that count's failure to state an offense. The record reflects that the district court changed the instructions based on Hubbard's concerns that jurors might believe that distributing pseudoephedrine was, in and of itself, illegal.

Sentence

Next, no arguable issue can be raised on appeal concerning Hubbard's sentence. We review criminal sentences for both substantive and procedural reasonableness. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). When considering whether a sentence is procedurally reasonable, the court must

ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 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.

Hubbard first argues that his sentence is procedurally unreasonable because the district court erred in applying the following enhancements: a two-level enhancement for abusing a position of trust; a two-level enhancement for maintaining a premises for distribution of controlled substances; a four-level enhancement for being an organizer or leader of criminal activity that involved five or more participants; a two-level enhancement for obstructing justice; and a two-level enhancement because the offense involved sophisticated money laundering. Additionally, Hubbard challenges the district court's calculation of his drug quantity.

We review a court's factual findings regarding the application of an enhancement for clear error. United States v. Begley, 602 F. App'x 622, 625 (6th Cir. 2015). The government must prove that a defendant's conduct warrants the enhancement by a preponderance of the evidence. United States v. Wright, 747 F.3d 399, 412 (6th Cir. 2014).

After reviewing the record, we conclude that no arguable issue could be raised on appeal concerning the challenged enhancements, as each was supported by a preponderance of the evidence. As a pharmacist, Hubbard abused his position of trust, see USSG § 3B1.3; Hubbard's conviction for maintaining a premises for distribution of controlled substances more than meets the preponderance standard for application of that enhancement, see USSG § 2D1.1(b)(12); Hubbard had decision-making authority over the pharmacy and controlled his employees, which was sufficient to apply the organizer/leader enhancement, see USSG § 3B1.1(a); Hubbard engaged in behavior designed to avoid detection and testified falsely about certain matters, which supported the obstruction-of-justice enhancement, see USSG § 3C1.1; and Hubbard's money laundering activities involved “layering,” which was sufficient to apply the sophisticated-money-laundering enhancement, see USSG § 2S1.1(b)(3).

Hubbard also disputes the calculated drug quantity. Drug-quantity approximations are not clearly erroneous if they are “supported by competent evidence” and “err on the side of caution.” United States v. Hernandez, 227 F.3d 686, 699 (6th Cir. 2000). The district court thoroughly discussed the objection to the calculation. With respect to the pseudoephedrine, the court noted that the calculation was “conservative by about 50 percent.” With respect to oxycodone, the district court explained that the evidence supported a “logical inference” that the out-of-state prescriptions were improper and “that the defendant knew that and was soliciting those individuals that were drug-seeking.” The district court also noted that, for the calculation to lower Hubbard's base offense level to 37, it would have to be below a marijuana equivalency of 90,000 kilograms. Even assuming that some of the prescriptions were legitimate, it would not make enough difference to affect Hubbard because the probation officer's conservative calculation was more than three times the amount needed to get to base offense level 38. Because a rational basis supported the drug quantity, no arguable issue could be raised that it was improperly calculated or that Hubbard's sentence is procedurally unreasonable on this basis.

Hubbard also challenges the substantive reasonableness of his sentence. “Substantive reasonableness focuses on whether a ‘sentence is too long (if a defendant appeals) or too short (if the government appeals).’ ” United States v. Parrish, 915 F.3d 1043, 1047 (6th Cir. 2019) (quoting United States v. Rayyan, 885 F.3d 436, 442 (6th Cir. 2018)). Moreover, we presume that a within-guidelines sentence is reasonable. United States v. Vonner, 516 F.3d 382, 389 (6th Cir. 2008) (en banc).

Hubbard's presentence report calculated his advisory sentencing guidelines range as life imprisonment based on a total offense level of 43 and a criminal history category of I. Because the statutorily authorized maximum sentences were less than the minimum of the advisory guidelines range, the statutory maximum sentences became the guidelines range: 240 months for each of Counts 1-6, 8-14, 16-46, and 48-61; and 120 months for each of Counts 15 and 62-73. Hubbard requested a variance on the basis of his history and characteristics and the sentences being imposed on medical professionals around the country. The government argued that the information on other sentences was insufficient to compare with Hubbard and that a sentence in the guidelines range would be appropriate.

The district court stated that it had considered the information provided by both parties and conducted its own research regarding drug sentences and the need to avoid unwanted sentencing disparities. Considering all of that information, the district court concluded that a variance was not warranted and denied Hubbard's motion. The district court then explained that it had considered the relevant sentencing factors in 18 U.S.C. § 3553(a). The court highlighted the fact that Hubbard held a position of trust within the community and violated that trust; when confronted, he tried to claim deliberate ignorance and failed to accept responsibility, even after the jury found him guilty; Hubbard's motive was greed; and the drug quantity involved was “astounding” and the highest the court had ever seen. The district court stated that Hubbard had created a lot of damage to his community through his distribution of thousands and thousands of pills and that, to curb the epidemic of prescription drug abuse in Kentucky, Hubbard was one of the individuals that needed to be guarded against. Considering the nature of Hubbard's conduct and the volume of the drugs being sold, the district court concluded that an appropriate sentence would be 30 years, or 360 months. Because the record does not demonstrate that the district court chose Hubbard's sentence arbitrarily, based it on an impermissible factor, or unreasonably weighed any factor, no good-faith argument could be raised on appeal that the within-guidelines 360-month sentence was substantively unreasonable.

Hubbard also challenges the district court's order that he forfeit real property, vehicles and boats, and certain amounts of currency on the basis that the forfeiture order violates the Eighth Amendment, no conspiracy was proven, and the drug quantity was inflated. Criminal forfeiture is a punishment for violating federal drug laws. Libretti v. United States, 516 U.S. 29, 39, 116 S.Ct. 356, 133 L.Ed.2d 271 (1995). Punishment should be proportional to the crime, but the proportionality required “forbids only extreme sentences that are ‘grossly disproportionate’ to the crime.” Graham v. Florida, 560 U.S. 48, 60, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) (quoting Harmelin v. Michigan, 501 U.S. 957, 1001, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991)) (Kennedy, J., concurring in part and concurring in judgment). The evidence at trial established that Hubbard used more than two million dollars in cash from the sale of controlled substances to purchase real estate, vehicles, a boat, recreational water vehicles, and to open a retirement account. The order of forfeiture required that he surrender the items purchased with those proceeds as well as the remainder of the cash obtained from the sales. The order was not therefore “grossly disproportionate.” Moreover, the jury's verdict forecloses Hubbard's argument that no conspiracy was proven, and the drug quantity was very conservatively calculated, as discussed above.

Hubbard's Pro Se Arguments

Hubbard makes two other arguments in his pro se brief: that the district court erred by denying his motion for a new trial, and that cumulative error violated his rights to due process and a fair trial. Neither argument will support a non-frivolous claim on appeal.

When considering a motion for a new trial, district judges “may act as a thirteenth juror, assessing the credibility of witnesses and the weight of the evidence.” United States v. Hughes, 505 F.3d 578, 593 (6th Cir. 2007) (citing United States v. Lutz, 154 F.3d 581, 589 (6th Cir. 1998)).

The role of the court of appeals, however, is not to sit as a “thirteenth juror” and re-weigh the evidence, but to examine the evidence to determine whether the district court's ruling that the verdict is not against the manifest weight of the evidence was “a clear and manifest abuse of discretion.”

Lutz, 154 F.3d at 589 (quoting United States v. Ashworth, 836 F.2d 260, 266 (6th Cir. 1988)).

Hubbard's motion for a new trial was based on his claims that the government failed to demonstrate that he knew or should have known that the pseudoephedrine he was selling would be used to manufacture methamphetamine and failed to prove a lack of medical need in dispensing a controlled substance. He also argued that bad acts were improperly introduced despite his motion in limine. As explained herein, these alleged errors would not support viable claims on appeal. Because these claims lacked merit, the district court did not abuse its discretion by denying Hubbard's motion for a new trial.

To warrant a new trial, the cumulative effect of any errors must have “deprived [the defendant] of a trial consistent with constitutional guarantees of due process.” Hernandez, 227 F.3d at 697. Where, as in this case, no individual ruling has been shown to be erroneous, however, there is no “error” to consider, and the cumulative error doctrine does not warrant reversal. United States v. Deitz, 577 F.3d 672, 697 (6th Cir. 2009).

Additional Review

Finally, a review of the remaining trial record reveals no other non-frivolous issue to support an appeal. There were no arguable issues apparent during the parties’ discovery, no violation of Hubbard's right to a speedy trial, voir dire was unremarkable, and there are no allegations of prosecutorial misconduct. Further, any claims regarding the ineffective assistance of counsel would be properly raised in a post-conviction proceeding, “where the record regarding counsel's performance can be developed in more detail,” rather than on direct appeal. United States v. Lopez-Medina, 461 F.3d 724, 737 (6th Cir. 2006).

Hubbard's request that counsel participate in oral argument is DENIED. We GRANT counsel's motion to withdraw and AFFIRM the judgment of the district court.