UNPUBLISHED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Affirmed by unpublished per curiam opinion.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.
2

Unpublished opinions are not binding precedent in this circuit.
3

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 aboveGuidelines 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. 
4

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 
5

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.
6

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, 
7

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 
8

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/oralargument/listen-to-oral-arguments.
9

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.
10

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. 
11

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.
12

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.
13

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. 
14

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-inchief; and (2) failed to vigorously cross-examine Carla Craft, one of the witnesses for the 
15

United States. Even assuming that these are plausible alternative defense tactics9 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. 
16

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”).
17

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 
18

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).
19

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 butfor 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 
20

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. 
21

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.
22

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 
23

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 
24

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). 
25

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 
26

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. 
27

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. 
28

administer controlled substances to family members pursuant to a bona fide practitionerpatient 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 
29

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. 
30

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).
31

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 recordkeeping 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 
32

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. 
33

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) 
34

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 decisionmaking 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 aboveGuidelines 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 
35

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 
36

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 aboveGuidelines 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.
37

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.
38

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. 
39

(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 selfmedicating 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.
40

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.
41

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). 
42

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 
43

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.