NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ No. 17

- 2373

_____________
UNITED STATES OF AMERICA

v. JEFFREY BADO ,

Appellant

______________ Appeal from the United States District Court for the Eastern District of Pennsylvania (District Court No. 2

- 15

- cr - 00037

- 0 01 ) District Judge: Hon

. C. Darnell Jones, II

______________ Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

September 2 5 , 2018

______________ Before: McKEE , RESTREPO , and FUENTES , Circuit Judges

.

(Opinion filed: March 1, 2019 )

_______________________ OPINION 

_______________________

 This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not constitute binding precedent.2

M c KEE, Circuit Judge. Bado argues that the evidence that he illegally dispensed controlled substances resulting in the death of Joseph Armstrong, his former patient , was insufficient

. He also argues there was insufficient evidence to convict him on each of the other drug
distribution counts , and that the District Court abused its discretion when it denied his request to introduce the ex parte deposition of a defense witness. For the reaso ns that follow, we will affirm.
I. 1 “In reviewing a jury verdict for sufficiency of the evidence, ‘ we must consider the evidence in the light most favorable to the government and affirm the judgment if there is substantial evidence from which any rational trier of fact could find guilt beyond a
reasonable doubt. ’ ” 2 “ Under this particu larly deferential standard, we ‘ must be ever vigilant

. . . not to usurp the role of the jury by weighing cre dibility and assigning weight to the evidence, or by substituting [our] judgment for that of the jury.’” 3 More over , “we review the evidence as a whole, not in isolation, and ask whether it is strong enough for a rational trier of fact to find guilt beyond a reasonable doubt.” 4

1 The District Court had original jurisdiction over the case pursuant to 18 U.S.C. § 3231. We have appellate jurisdiction to review the District Court’s final s entence under 28 U.S.C. § 1291. 2 United States v. Benjamin , 7 11 F.3d 371, 376 (3d Cir. 2013) (quoting United States v. Brown , 3 F.3d 673, 680 (3d Cir. 1993))

. 3 United States v. Caraballo

- Rodriguez , 726 F.3d 418, 430 (3d Cir. 2013) (en banc) (quoting United States v. Brodie , 403 F.3d 123, 133 (3d Cir. 2005) ) (ellipses and brackets in original)

. 4 Id. (quoting United States v. Boria , 592 F.3d 476, 480 (3d Cir. 2010 ) ).3

The evidence here was sufficient to allow a jury to conclude beyond a reasonable
doubt that Bado prescribed oxycodone and methadone to Armstrong 24 days before his
death. Blood samples obtained the day after Armstrong’s death confi rmed the presence of oxycodone and m ethadone in Armstrong’s system at the time of his death. Two expert
witnesses described at length why Armstrong’s death was caused by the ingestion of

o xycodone and m ethadone.
D efense counsel thoroughly cross

- examined both experts and each doctor remained
unshaken in his respective medical conclusi on that the prescription pills, and not cocaine use or coronary disease, were the “but for ” cause of Armstrong’s death. C onsistent wi th each other, they explained how a cocaine

- induced death would present differently than Armstrong’s death did

. E ach doctor’s explanation of the manner by which Armstrong died was corroborated by Armstrong’s common law wife’s testimony regarding her
obser vations of Armstrong’s condition in the hours leading up to his death.
T here was therefore ample evidence for the jury to conclude that but for his
consump tion of the oxycodone and m ethadone that Bado prescribed , Armstrong would
still be alive.
I I. Similarly, Bado contends that there wa s insufficient evidence to support his
conviction that he illegally distributed hundreds of opioid prescriptions

. Bado particularly challenges the summary nature of Dr. Thomas ’s testimony

. P hysicians are subject to c riminal liability “when their activities fall outside the4

usual course of professional practice.” 5 After reviewing all 89 patient files, Dr. Thomas testified to a reasonable degree of medical certainty that each of the prescriptions listed in
the superseding indictment were issued outside the usual course of professional practice and were medically unnecessary. Dr. Thomas reviewed nine patient files in detail and provided extensive background information about the acceptable medical practices for pain management

. While Dr. Thomas testified in summary fashion about the remaining patients, he identified the illegitimate factors present in each case. “We are not to act as a thi rteenth juror” and must instead consider whether a rational juror could h ave found guilt beyond a reasonable dou bt

. 6 “[T] he jury’s verdict must be upheld as long as it does not ‘fall below the threshold of bare rationality

. ’” 7 Despite Bado’s assertions to the contrary , Dr. Thomas’s testimony was sufficient to allow
a rational juror to conclude beyond a reasonable doubt that Bado illegally dis tributed
controlled substances. 8
I II . In addition to attacking the sufficiency of his convictions, Bado argues that the
District Court abused its discretion by precluding him from introducing the deposition testimony of a defense witness. “We review the District Court’s evidentiary rulings

5 United States v. Moore , 423 U.S. 122, 124 (1975). 6 Caraballo

- Rodriguez , 726 F.3d at 431

. 7 Id. (quoting Coleman v. Johnson , 566 U.S. 650, 656 (2012) )

. 8 In denying Bado’s motion for a new t rial, the District Court astutely observed the fact that , “the jury found [Bado] not guilty of thirteen discrete counts within the Superseding Indictment speaks to the jury’s dedication to unbiased assessment of the evidence supporting each indi vidual criminal charge.” United States v. Bado , No. 15

- cr - 37, 2017 WL 2362401, at *5 (E.D. Pa. May 30, 2017).5

principally for abuse of discretion.” 9 “ We will not disturb a trial court’s exercise of discretion unless ‘no reasonable person would ado pt the district court’s view.’” 10 Approximately one month before Thanksgiving, the District Court info rmed the jury that the court would n ot be sitting on the Wednesday before or the Friday after Thanksgiving . After court ended on the Tuesday before Thank sgiving, defense counsel
informed the government that one of Bado’s former patients who wanted to testify was unavailable the following week but was available for a deposition the next day, the Wednesday before Thanksgiv ing . However, c ounsel for the government was not available
then . Defense counsel filed a motion for an order authoring a deposition for use at trial, “nunc pro tunc.” D efense counsel then conducted an ex parte deposition of the patient even though the court had not yet ruled on the m otion

. When court resumed the Monday after Thanksgiving, defense counsel requested that the Court admit the deposition testimony. The District C ourt confirmed that Bado began presenting his defense more than a month prior and defense counsel had no t subp oenaed the witness for trial. In denying the request to read the deposition testimony into the record, the C ourt noted that “it is not the fault of the Government, it is not the fault of the Court, it is nobody’s fault but the witness who failed to respon d, because clearly, that witness had knowledge to be here.” 11 Bado’s attempt to argue that the

9 Stecyk v. Bell Helicopter Textron, Inc. , 295 F.3d 408, 412 (3d Cir. 2002). 10 Id. (quoting Oddi v. Ford Motor Co. , 234 F.3d 136, 146 (3d Cir. 2000)). 11 App. 1876

.6

District Court thereby abused its discretion can best be described as frivolous. 12
IV. For the foregoing reasons , we will affirm the District Court’s judgment of
conviction and sentence

.

12 Defense counsel attempts to justify the ex parte deposition while the motion was still pending by relying on the provisions of F ED

. R. C RIM

. P. 15(a) (1) which allows a party to take a deposition to prese rve testimony for trial. However, on this record, we will not conclude that the District Court abused its discretion in denying counsel’s last minute “H ail Mary” attempt to admit the ex parte deposition of this witness.