UNITED STATES OF AMERICA v. DAVID WEBB

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United States Court of Appeals, Eleventh Circuit.

UNITED STATES OF AMERICA, lllllllllllllllllllllPlaintiff-Appellee, v. DAVID W. WEBB, llllllllllllllllllDefendant-Appellant.

No. 10–10574 _ D.C. Docket No. 3:08–cr–00136–LC–1

Decided: September 12, 2011

Before HULL, BLACK and STAPLETON,* Circuit Judges.   PER CURIAM:  Defendant–Appellant David W. Webb (“Webb”) was convicted of 130 counts arising, inter alia, from his wire fraud, health care fraud, and unlawful dispensing of controlled substances.   Webb also was convicted of three counts charging a patient's death resulted from the use of controlled substances dispensed by Webb or from his health care fraud violation.   Webb is serving concurrent life sentences on the three death-results convictions, and numerous five, ten, and twenty-year concurrent sentences on his other 127 convictions.   Webb appeals his 130 convictions, arguing that:  (1) the district court gave erroneous instructions to the jury, (2) he received ineffective assistance of trial counsel, and (3) the government's evidence was insufficient to sustain his convictions.   After oral argument and careful review of the briefs and record, we affirm.   I. INDICTMENT On December 22, 2008, a grand jury issued a 131–count indictment 1 charging Webb with:  (1) conspiring (with his wife, Bonnie Faye Webb (“Faye”)) to defraud a health care benefit program and to commit wire fraud, in violation of 18 U.S.C. §§ 1343, 1347, 1349 (Count 1);  (2) defrauding a health care benefit program, in violation of 18 U.S.C. §§ 1347 and 2 (Counts 2–36);  (3) unlawfully dispensing and causing to be dispensed controlled substances, in violation of 21 U.S.C. §§ 841(a)(1) and 18 U.S.C. § 2 (Counts 39–106;  108–129);  and (4) possessing and using, without lawful authority, a Drug Enforcement Administration (“DEA”) registration number of another in connection with the distribution of controlled substances, in violation of 18 U.S.C. §§ 1028(a)(7) and 2 (Counts 130 and 131).   Count 37 charged Webb with healthcare fraud, and alleged that his fraud resulted in death, in violation of 18 U.S.C. §§ 1347 and 2. Count 38 charged Webb with conspiracy to unlawfully distribute numerous controlled substances, including oxycodone 2 and fentanyl,3 and with death resulting from the use of oxycodone and fentanyl, all in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), 846.   Count 107 charged Webb with unlawfully dispensing the controlled substances oxycodone and alprazolam,4 and with death resulting from the use of the oxycodone, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), 841(b)(2), and 18 U.S.C. § 2.5 Because defendant Webb challenges the sufficiency of the evidence at trial, we review the evidence in detail.   II. EVIDENCE AT TRIAL A. Webb's Prescribing Practices Defendant Webb, a Florida-licensed physician, operated his medical practice in Destin, Florida, under the name “Doctors on Call.” Under Florida law, physicians are allowed to prescribe controlled medications for pain, but must do so “for a sound medical purpose” and “within the standard of care of a physician.”   The Florida State Board of Medicine has established seven standards that physicians who prescribe controlled substances for the treatment of pain must follow, including these five:  (1) conducting a complete medical history and physical examination and documenting them in the medical record;  (2) establishing a written treatment plan with objectives to determine whether the plan is working;  (3) using written drug agreements for patients deemed at high risk for drug abuse;  (4) referral of the patient to expert doctors “in order to achieve treatment objectives,” especially when the patient has a history of substance abuse;  and (5) keeping complete and accurate records.   Fla. Admin.   Code r. 64B8–9.013(3).   At trial, witnesses testified that Webb prescribed controlled substances for patients whom he saw for less than fifteen minutes, and that those patients then would go straight to the pharmacy.   At trial, Dr. Theodore Parran (“Dr.Parran”) was the government's expert witness in drug and alcohol dependency.   Dr. Parran reviewed 115 to 120 patient files from Webb's practice.   Based on those files, Dr. Parran concluded that Webb consistently violated the Florida Board of Medicine's standards.   According to Dr. Parran, Webb:  (1) gave inadequate initial evaluations, including failures to obtain prior medical records and sub-standard physical exams;  and (2) failed to refer patients to specialists to help manage their pain.   Webb also ignored signs of drug dependency in his patients and continued to prescribe drugs even when patients were “out of control with their self-taking of the medicine.”   Dr. Parran's testimony, along with other testimony and documentary evidence, indicated that Webb prescribed multiple controlled substances in high doses, even where doing so made little medical sense.   Dr. Parran testified that when Webb's patients had pain complaints, Dr. Parran could not recall any who were not treated with controlled substances, a practice he described as “very unusual.”   The government's evidence also indicated that even after Webb discovered some of his patients were addicts, he continued to feed their addictions by prescribing more controlled substances.   Dr. Parran also opined that Webb's prescribing practices were “dangerous,” “[a]bsolutely incredible,” and “clearly inconsistent with the usual course of medical practice and for other than legitimate medical purposes.”   Webb routinely granted patients' requests for early refills, even though such requests indicate that patients are not taking drugs as prescribed.   Tellingly in Dr. Parran's view, Webb did not question the reasons his patients gave for needing early refills, which included:  (1) a friend having stolen medication;  (2) taking too much hydrocodone for cold sores;  and (3) having flushed medication down the toilet.   While patients sometimes legitimately need early refills, when this many patients ask for early refills it is “a huge red flag.”   Instead of granting those patients' requests, the better course is often to “ask them to get treatment.”   Additional testimony and evidence at trial suggested that Webb continued to give his patients prescriptions for controlled substances even after Webb learned those patients were obtaining narcotics from other sources or sharing their drugs.   For instance, Webb continued to prescribe multiple controlled substances to patient Kevin Morris and Morris's wife, even though Webb knew that Morris shared medication with his wife.   Webb also prescribed 74 Adderall pills rather than the usual 60 to patient David Lee because Lee “has to pay back some people who he borrowed medications from.”   According to Dr. Parran, prescribing narcotics under these types of circumstances “breaks basic rules of clinical decision making” because “people getting potentially addicting drugs from significant others, friends, family, acquaintances, and saying that they like them or they feel like they're the thing that works for them” is a major warning sign for physicians in general.   Despite warnings from relatives and close friends to Webb and his staff about various patients' drug abuse, Webb continued to prescribe those patients controlled substances.   For instance, one patient's father told Webb that the patient had entered a drug rehabilitation facility, prompting Webb to note that the patient “will never get another prescription from our practice.”   Webb, however, prescribed Adderall to that patient less than nine months later.   Dr. Parran stated that he could think of no good reason, aside from terminal illness, to give narcotics to someone who had been detoxed and was in recovery from an opiate addiction.   One of Webb's medical assistants also testified that when she expressed her concerns to Webb, he dismissed her, saying “he did not put the pills in [his patients'] mouth[s], he just wrote the scripts that they needed.”   Webb stood out to the pharmacists who filled his prescriptions because of the “amount and the frequency” of the prescriptions.   Unlike other doctors, Webb kept his patients on pain medications for long periods, and also requested specific brands of pain medicine because they worked better than generics.   Dr. Parran testified, however, that there is no medical reason to prescribe specific brands of pain medicine rather than generics, and that his understanding is that patients seek name-brand prescription medicines because those medicines have more street value.   Webb's patients also brought in prescriptions for early refills more frequently than other doctors' patients.   One pharmacist testified that some of Webb's patients were “drug seekers,” and that she had informed Webb that some of Webb's patients were also getting pain medications from other physicians.   Based on his review of various patients' files, Dr. Parran concluded that Webb's prescription practices were “done in a way that was inconsistent with the usual course of medical practice and [were] done for other than legitimate medical purpose.”   On cross-examination, Dr. Parran disagreed with Webb's counsel's statement that “a caring doctor ․ would try to do anything they could to relieve any type of pain that they believe their patient is suffering,” explaining that:  If in the process ․ of trying to relieve a patient's pain and suffering, a physician receives data, clinical information, calls from pharmacists, calls from probation officers, information about overdoses, information that patients are out of control with their medicine, running out early, seeing multiple different doctors for the same substances, using other illicit substances, so if in the process of trying to provide care for a patient's pain and suffering a physician receives data back indicating that that patient is out of control with their use and that their continued use threatens their health, their life, or their liberty, continuing to prescribe to that patient in the face of that kind of adverse information coming back to the doctor is inconsistent with the practice of medicine.   That constitutes knowingly doing harm to a patient in an ongoing way.