2011 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

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P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al
D ock e t N o . 10-4035

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### NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ No. 10

- 4035

_____________ UNITED STATES OF AMERICA

v. LAURENCE T. MCKINNEY, MD,

Appellant

_____________ On Appeal from the United States District Court for the Eastern District of Pennsylvania District Court No. 2

- 0 9

- c r - 00234

- 001 District Judge: The Honorable Michael M. Baylson

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

September 14, 2011 Before: SLOVITER , SMITH, and NYGAARD, Circuit Judges

(Filed: September 22, 2011 )

_____________________ OPINION

_____________________ SMITH, Circuit Judge. Laurence T. McKinney, M.D., appeals from his conviction by a jury on numerous counts of a forty

- nine count indictment charging him with violations of2



### the Controlled Substances Act . The jury found McKinney guilty of multiple counts of distributing Percocet, a Schedule II controlled substance, and Xanax, a S chedule IV controlled substance , ou tside the usual course of professional practice and not for a legitimate medical purpose in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. In addition, the jury found McKinney guilty of maintaining a place for the illegal distribution of controlled substances in violation of 21 U.S.C. § 856. The United States District Court for the Eastern District of Pennsylvania sentenced McKinney to 87 months on the counts alleging the unlawful distribution of the Schedule II opiate a nd the unlawful maintenance of a place to distribute controlled substances. The Court imposed a sentence of 36 months on the remaining counts of unlawful distribution of the Schedule IV controlled substance, to be served concurrently. This timely appeal followed. 1 

### McKinney contend s that his conviction should be set aside for several reasons. First, he asserts that the District Court’s jury instructions were prejudicial because they blurred the difference between the civil malpractice standard for prescribing medication and the pro of necessary for a criminal conviction for illegally distributing controlled substances . Second, McKinney argues that the District Court erred by allowing the prosecution to admit into evidence a chart that

1 The District Court had jurisdiction under 18 U.S.C. § 3231. We exercise final order jurisdiction under 28 U.S.C. § 1291.3



### summarized data reported to the Commonwealth of Pennsylvania regarding the number of prescriptions written for Schedule II controlled substances. Finally, McKinney argues that his conviction should be set aside because the prosecution failed to disclose two police reports in contravention of the requir ements of Brady v. Maryland , 373 U.S. 83 (1963). We conduct plenary review in deciding whether the charge to the jury stated the proper legal standard. United States v. Coyle , 63 F.3d 1239, 1245 (3d Cir. 1995). In reviewing a District Court’s jury instr uctions, we consider the charge as

a whole

. United States v. Zehrbach , 47 F.3d 1252, 1264 (3d Cir. 1995) (en banc). Because McKinney did not object to the jury instructions, reversal is warranted only in the event there is plain error. United States v. Olano , 507 U.S. 725, 732

- 33 (1993). The authority cited by McKinney demonstrates that the charge could have been more comprehensive. Nonetheless, we conclude that the charge to the jury, as a whole, set forth the proper standard. McKinney contends that the District Court also erred by allowing the prosecution to admit the chart summarizing the contents of the Schedule II/BD

- 6 Reports. We review a District Court’s evidentiary rulings for an abuse of discretion. United States v. Amirnazmi , 645 F.3d 564, 594 n.40 (3d Cir. 2011). We find no abuse as the chart was admissible under Federal Rule of Evidence4



### 1006

. See United States v. Velasquez , 304 F.3d 237, 240 (3d Cir. 2002). In light of the District Court ’s limiting instruction regarding the purpose of this chart, we reject McKinney’s contention that the chart was unduly prejudicial under Federal
R ule of Evidence 403. McKinney’ s final argument is that the prosecution committed a Brady violation by failing to provide him with two reports by police who r esponded to two incidents at McKinney’s office con cern ing prescriptions. Because a Brady claim “ presents questions of law as well as questions of fa c t, ” we conduct plenary review of the legal conclusions and clear error review of any factual findings.
Un ited States v. Pelullo , 399 F.3d 197, 20 2 (3d Cir. 2005 ). Because t he two police reports t hat were not disclosed we re neither material nor exculpatory , we conclude that the prosecution did not commit a Brady violation

. For the above reasons, we will affi rm the judgment of the District Court.