NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a0344n.06 No. 10-6036 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT UNITED STAT ES O F AMERICA, ) ) P laintif f-App ellee, ) ON AP P EAL FR OM THE ) UNITED STAT ES DIS TRICT v. ) COURT F OR THE E ASTERN ) DISTRICT OF TENNESS EE JOHN THE ODORE HANCOCK , ) ) Defendan t-Appellant. ) ) BEFORE: SUHRHEINRICH, STRANCH and DONALD, Circ uit Jud ges.

SUHRHE I N R

I C H, C ir c ui t J ud g e . D e f

e n d a n t Jo h n T h e o d o r e H a

n c o c k , M.D., appea ls from his judgment of c onviction and sentenc e on var ious health ca re f raud c harg es. We AF F IRM. I. Background Def endant operated a medical bus iness known as “Ha ncock Family Medicine” in Moo re s b urg , Tenne ssee. Def endant presc ribed controlled substances, including methadone, morphine, ox y codone (Oxy Contin), hy drocodone , and benzodiazepines, for patients without perf orming phy sical examinations and without deter mining whether t h e d rugs wer e medically

nece ssary . Most of t he drugs were paid for throug h the TennCare p rog ram, Tennessee ’s progra m for indig ent medica l car e. Sever al of De fenda nt’s patients died. Def endant was char g ed with health car e fra ud, drug offe nses, money -launde ring , and income

tax violations. Specifica lly , Counts 1 throug h 32 of the superse ding indictment char g ed Def endant

-1-with eng ag ing in a scheme to defr aud a health car e benef it prog ram, in violation of 18 U.S.C. § 1347. Counts 1, 2, 18, and 19 further char g ed that Def endant’ s fra

ud resulted in death. Counts 33 throug h 105 char ged Def

endant with unlawfully dispensing, or causing to be dispensed, controlled substances, in violation of 21 U.S.C. § 841 (a )(1), (b)( 1)(C), (b)( 1)(D) , and (b)( 2), and Counts 33 throug h 36 further char g ed that deaths resulted from the unlawful dispensing. After a ten-da y jury trial, Def endant was convicted of: twenty -nine counts of defr auding the TennCar e prog ram, with the conduct char ged i n two counts resulting in death–Eve ly n L indsey (Count 1) and J ames Br og an (C o u n t 2 ); t we n t y -n i n e c o u n t s o f u n l a w f u l l y d i s p en s i n g S ch ed u l e I I co n t ro l l ed substances–oxy codone, morphine, methadone, and fenta ny l–outside the scope of acc epted medical
prac tice and not for a leg itimate medical purpose with the conduct in three counts resulting in death (including L ind s ey an d Br og an) (Counts 33 throug h 35); nine counts of unlawfully dispensing Schedule I I I controll ed substances (hy drocodone with ace taminophen); twenty -nine counts of unlawfully dispensing Schedule I V controlled substances; two counts of money laundering; one
count of tax evasion; and four counts of failure to file income tax returns. The jury returne d not
g uilty verdic ts on five counts involving patient Chester Thac ker. Def endant filed a motion for new trial, and later an amende d motion for new t ri al and judgme nt of acquittal, arguing that the evidenc e was insufficient for Counts 33 throug h 35–unlawfully dispensing controlled substan ce s wh i ch resulted in the deaths of three patients, including L indsey and Br og an, absent proof that their deaths wer e actua lly cause d by the presc ription drug that was presc ribed to them by Def endant. The district court denied the motions, holding that the rec ord contained sufficie nt evidenc e from which a jury could fi n d proxi mate cause betwee n Def endant’ s unlawful dispensing of controlled substanc es and the victims’ deaths.

-2-Def endant was sentenc ed to an ag g rega t e t erm of 276 months’ imprisonment: concur rent terms of 276 months for health car e fraud re sulting in dea th; 120 months for the rema ining health

car e fra ud counts and money launder ing; 240 months for the unlawful dispensing of Schedule I I controlled substances; 60 months for the unlawful dispensing of Schedule I I I controlled substances and tax evasion; 36 months for the unlawful dispensing of Schedule I V controlled substances; and 12 months for the failure to file income tax returns. Def endant was also order ed to serve five y ear s of super vised rele ase a

nd pay restitution of $70,764.02. He then f iled this appeal. II. Analysi s Def endant a rg ues on appea l tha t the re w as insufficie nt evidence to support his convictions for health car e fraud that resulted in death. I n deter mining whether there is sufficie n t evidenc e to support a conviction, the question befor e us is whether , “af ter viewing the evidenc e in the light most favor able to the prosec ution, any rational trier of fac t could have found the essential elements of the crime beyond a rea sonable doubt.” Jack son v. Virginia , 443 U.S. 307, 319 (1979). We revie w the rele vant evidence in the lig ht most favorable to the Gover nment and must aff

irm the conviction if
any rational trier

of fa ct could find the de fenda nt guilty

. Id. A phy sician commits health ca re fraud if he knowingly

and willfully

executes a sc heme to defr aud a health car e benef it prog ram. 18 U.S.C. § 1347(a)

. The statute states in rele vant part: “[I ]f the violation results in death, such person shall be fined under this title, or imprisoned for any term of y ear s or for life, or both.” § 1347(a) (2). The jury must a lso f ind be y ond a rea sonable doubt the fac ts support i n g t h e enhanc ed penalty under (a) (2). See Apprendi v. New Jerse y , 530 U.S. 466 (2000).

-3-Def endant contends that the g overnme nt did not meet the standard of proof for establishing health car e fra

ud resulting in de ath. Section 1347 does not indicate the level of causation require d for imposit ion of the enhanc ed penalties under subsection (a )( 2 ). Howeve r, in United States v. Martinez , 588 F.3d 301, 317 (6th Cir. 2009), cert. denied , 131 S. Ct. 538 (2010), this court held that proxi mate cause was the appropr iate causation standard under the enhanc ed penalty provision of 18 U.S.C. § 1347: Our decision is also g uided by the pri n ci p l es of proxi mate cause . “The conce pt of proxi mate cause incorpora tes the notion that an acc used may be char g ed with a criminal offense even though hi s acts we re not the immediate cause of t he victim ' s death o r i n

jury .” Guillette , 547 F.2d at 749. “I n many situations g iving rise to criminal liability ,” the ha

rm “is not direc tly

cause d by

the ac ts of the def

endant but rathe r results from intervening forc es or events.” Id

. “Where such intervening events are fore seea

ble and natura lly re s u l t from [t he defe ndant]’s criminal conduct,” the defe ndant is “cr iminally responsible for the resulting harm.” Id. ; see also Hoopengarne r v. United States , 270 F.2d 465, 469 (6th Ci r . 1 9 59) (holding defe ndant culpable f or the “ natura l and probable conseque nce [ ]” of his conduct). The ref ore, even if [ the defe ndant] did not intend for his two patients to die, he can be held responsible for their deaths if there was sufficie nt evidenc e that it “re asonably might or should have been fore seen . . . that [hi s fra udulent conduct] would be likely to cre ate a situation which would expose ano t h er to the dange r of

. . . death.” Id.; see also Harris , 701 F.2d at 1102 (holding that “if death results” require m ent under § 241[was] satisfied beca

use death was “a fore seea

ble a n d n a tu r a l r e s u lt ” of defe ndant' s actions). Id. at 319. Fur

thermore , a patient’s use of illega l narc otics is not an intervening cause which brea ks the chain of proxi mate causation if it is a fore seea ble and natura l result of the defe ndant phy sician’s criminal conduc t. Id. at 321. As a threshold matter, Def endant complains that the d i s t ri ct co urt did not g ive a specific instruction about proxi mate cause , as Def endan t re q uested, but instructed the jury to consider whether the United States had proven , b ey o n d a rea sonable doubt, that L indsey ’s and Br og an’s deaths “ resulted f

rom” De fenda

nt’s health ca

re f raud.

-4-An i ssue reg arding ju ry i n s tructions is a question of l aw that is revie wed de novo. United

States v. Gunter , 551 F.3d 472, 484 (6th Cir. 2009) (citing W i l l i a ms ex r el. Hart. v. Paint Valley Local Sch. Dist. , 400 F.3d 360, 365 (6th Cir. 2005)). The district court’s ref usal to g ive a reque sted instruction is revie wed for abuse of di scre tion. Id. An abuse of discre tion occur s if the requested instruction (1) was a correc t statement of the l aw, (2) was n o t s u b s tantially cover ed by the charg e
actua lly delivere d to the jury ; and (3) conce rned a point so important that the failure to g ive it substantially impaired the defe ndant’s defe nse. Id. (citing United States v. W illiams , 952 F.2d 1504, 1512 (6th Cir. 1991)). Martinez was decide d on Dec ember 1, 20 0 9 , af t er t h e jury trial in this case . I n its 1 instructions, the district court trac ked the lang uag e of § 1347(a) (2). We find no abuse of discretion beca use the issue and applicable law, as define d in Martinez , wer e “substantially cover ed by the char g e actua lly delivere d to the jury ,” see Gunter , 551 F.3d at 484, and the court’s instructions wer e not misl eading

or conf using, see U

nited States v. Pensy l , 387 F.3d 456, 458 ( 6th Cir. 2004). Turning to his principal arg ument, Def endant maintains that the g overnme nt did not meet its burden of proving beyond a rea sonable doubt that his criminal conduct was the proxi mate cause of
L indsey ’s and Br og an’s deaths. I nstead, he claims the g overnme nt proved mere ly that he presc ribed controlled subst ance s for each of the decease d, at s ome t ime prior to thei r d eath. Ba sed upon our revie w of the r ecor d, we r ejec t this arg ument. As to patient L indsey , the rec ord establishes that, at the time of her death, L inds ey h ad a lethal amount of m ethadone in her sy stem. Def endant’ s p at i en t rec ords reflecte d that she was his

The district court’s order denying Def endant’ s motion for new trial and amende d motion for 1 judgme nt of ac quittal was issued on J uly 27, 2010. -5-patient and a TennCar e rec ipient; that she rec eive d p re s cr i ptions for methadone and Xana x

(alpra zolam); that she filled the presc riptions on Aug ust 16, 2003; that TennCar e paid for the drug s ( id. at 16-19); and that L indsey died from a methadone overdose on Aug ust 1 7 , 2003. L indsey ’s blood contained methadone at a conce ntration of 0.71 microg rams p er m i l l i l i ter, a tox ic to lethal
rang e. At trial, Dr. Kenne th Fe rslew, a profe ssor of pharma colog y and tox icolog y at East Tenne ssee State University ’s Quillen College of Medicine and direc tor of the tox icolog y section at the J enkins For ensic Center , explained how methadone cre ates a substantial risk of centr al nervous sy stem depre ssion. After revie wing the labora tory repor t of L indsey ’s blood sample, he opined that the level of methadone in L indsey ’s blood was “ potentially lethal.” Dr. Stephen L oy d, a phy sician and assistant profe ssor of internal medicine at East Tenne ssee State University ’s Quillen C o l leg e of Medicine, revie wed L indsey ’s file. Dr. L oy d stated that
L indsey had a diag nosis of chronic low back pain. ( Id. at 69.) She also had “multiple red flag s for addictive behavior ,” (

Id. at 67), but no history of drug s or alcohol was ever taken, nor was a mental

status examination order ed. ( Id. at 67-71.) Dr. L oy d testified that it was dang erous to trea t pain by using methadone, g iven the long- acting n at ure of that drug

. He explained that opiates (such as methadone) and benzodiazepines are both depre ssants of the centr al nervous sy stem and can result in death. After revie wing L i n d s ey ’s fil e, Dr. L oy d opined t hat t he drugs prescr ibed by Def endant

wer e outside the scope of acc epted medical prac tice, and that she died of “appa rent drug overdose ,” based on “ positive tox icolog y repor ts.” ( Id. at 67-78.) As to patient Br og an, the rec ord establishes that he died as a result of the fata l combination of morphine and other drug s, all pre s cribe d by Def endant. Acc ording to Def endant’ s rec ords,
Br og an had his la st a

ppointment with Def

endant on September 26, 2003, at which time D efe ndant

-6-presc ribed him MS Contin (morphine) , Valium (diazepam), Elavil (amitripty line), and other drug s.

The presc riptions wer e filled that same day and paid for by TennCar e. ( Id. at 21-23.) Br og an died in October

2003. Dr. L oy d revie wed Br og an’s patient file. Dr. L oy d testified that Def endant had not prepa

red

a patient history , had not done a p h y s i ca l examination, had not order ed imag ing, and had not

scre ened Br og an for substance abuse. Def endant g ave a diag nosis of chronic low back pain and g ave Br og an presc riptions for five drug s with c entra l ne rvous sy stem depre ssant eff ects. Dr. L oy d g ave his opinion: My

summary was that Mr. Br og an lacke d the history , phy sical examination and diag nosis to support chronic nar cotic use a nd esca lation of dosag e. He was on multip l e o p i ates which cause d respiratory suppression without discussion taking place about the possibili ties. T h ere ’s no psy chiatric evalua tion, mental exam or diag nosis to support the presc riptions of Xana x and Elavil, particula rly at a 150 milli g ram dose. . . . Mr. Br og an had a cre scendo pattern of narc otics use. . . . He reque sted highe r dosag es and more fre quent administration.

. . . His complaints wer e drama tic and not supported by history , phy sical examination or imag ing.

. . . I n my opinion the use of narc otics in this case wa s outside the scope of acc epted medic al pra ctice. Dr. Alfre do Parede s, a fore nsic patholog ist and senior medi ca l ex am i n er for the State of Alabama , testified that he participa ted i n Br o gan ’s autopsy

. Tox icolog ical testing showed the
prese nce of amitripty line, nortripty line (a metabolite of amitripty line), benzodiazepines, and opiates (morphine) in Br og an’s sy stem. ( Id

. at 29.) Dr. Fe rslew testified to the same eff ect. A g astric drug

scre en reve aled the prese nce of the same drug s, with the opiate being morphine. Dr. Parede s explained how o p i ates depre ss the centr al nervous sy stem, along and in combination with other drug s, such as benzodiazepines. Dr. Parede s testified that Br og an “died from multipl e drug tox icity or drug interac tion; that is the pre sence of the a ntidepressa

nt, amitripty line, which by the way was

-7-in a tox ic rang e acc ording to the tox icolog y repor t, and the prese nce of opiates and benzodiazepine.”
I n his opinion, “all these drug s combined, I

. . . , p ro d u ce d on him a fata l rea ction, whether it be throug h the respiratory sy stem or throug h the car diovascular sy stem in the way of arr hy thmias.” ( Id. at 31.) On cross-examination, Dr. Parede s testified that Br og an died from the tox ic i ntera ction of opiates, benzodiazepines, and amitripty line. ( Id. at 33.) He explained that pulmonary edema , which

was found in Br og an’s body , was a “ca rdinal sign” of multipl e drug tox icity

. ( Id. at 42.) Dr. Parede s also stated that there wer e no other indications of trauma or natura l disease that could have explained
Br og an’s de ath. (

Id. at 26.)
L indsey and Br og an died shortly afte r being unlawfully presc ribed Schedule I I controlled substances, namely methadone and morphine, by Def endant. Expert testimony established that at the time of death, L indsey had a lethal amount of methadone in her sy stem. Ex pert testimony further established that Br og an died as a result of the fata l combination of m orphine and other drug s, all
presc ribed by Def

endant. The rec ord suppo rt s the jury ’s finding , which was consistent with the lang uag e of the statute and the jury instructions, that L indsey ’s and Br og an’s deaths “re sulted from” health car e fra

ud. Viewing the evidenc e in the light most favor able to the g overnme nt, a rational jury could have conclude d that L indsey ’s and Br og an’s deaths wer e a natura l and foresee able result of Hanc ock’s criminal conduct. Cf. Martinez , 588 F.3d at 319-23 (holding that the evidenc e supported the j ury verdict t h at t h e defe ndant’s criminal conduct under § 1347 “re sulted in” t he death of t wo patients). III. Conclusi on For the re asons stated, we AF F IRM Def endant’ s convictions.

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