1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 16a0180p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

U

NITED S TATES OF A MERICA , Plaintiff-Appellant ,

v

.

S TEPHEN C. A RNY , M.D., Defendant-Appellee

. ┐ │ │ │ │ │ │ │ ┘ No. 15-6130

Appeal from the United St ates District Court for the Eastern District of Kentucky at Pikeville. No. 7:12-cr-00011—Amul R. Thapar, District Judge. Argued: June 15, 2016
Decided and Filed: August 1, 2016
Before: GIBBONS, GRIFFIN, and DONALD, Circuit Judges.

_________________ COUNSEL

ARGUED: John Patrick Grant, UNITED STA TES ATTORNEY’S OFFICE, Lexington, Kentucky, for Appellant. Kent Wicker , DRESSMAN BENZINGER LAVELLE PSC, Louisville, Kentucky, for Appellee. ON BRIEF: John Patrick Grant, Charles P. Wisdom, Jr., UNITED STATES ATTORNEY’S OFFICE, Lexingt on, Kentucky, for Appellant. Kent Wicker, DRESSMAN BENZINGER LAVELLE PSC, L ouisville, Kentucky, for Appellee.

_________________ OPINION

_________________ JULIA SMITH GIBBONS, Circuit Judge. After a three-day jury trial, Stephen Arny, M.D., was convicted of conspiracy to distribute and unlawfullydispense seve ral prescription pain medications in violation of 21 U.S.C. §§ 841(a)(1) and 846. Approximately three months 

### >No. 15-6130 United States v. Arny Page 2

after the verdict, but before sentencing, Arny secured new counsel, who later moved for a new trial pursuant to Federal Rule of Criminal Pr ocedure 33 based on trial counsel’s constitutionally ineffective assistance. The district court gran ted the motion based on its finding that Arny’s Sixth Amendment right to counsel had been viol ated. The government appeals. We affirm.

I.
A federal grand jury indicted Arny for hi s alleged participation in a conspiracy to distribute and unlawfully dispense Oxycodone , Hydrocodone, and Xanax while employed at Paintsville Auto Accident Healthcare (“ PAAH”), which was owned and operated by codefendants Ray and Tina Staple ton. The Stapletons opened PA AH in early 2009, though neither of them were medical doctors, registered nurses , or had prior medical training. At some point, the clinic accepted only cash for its services; a patie nt’s first visit cost $2 50 and subsequent visits were $200. The Stapletons used a recruiting agency to hire its first doctor, Doina Saxman, M.D., who started in March 2009. They paid Saxm an $120 per hour for a forty-hour workweek and provided her with an all-expenses-paid apartment. Saxman resigned from the clinic in July 2010.
Saxman was never indicted and is still practicing medicine.
After Saxman resigned, the Stapletons o ffered Arny the same $120 per hour salary and all-expenses-paid apartment. Arny graduated from medical school in 1979 and served as a medical doctor in the armed forces, practicing occupational medicine, aer ospace medicine, and eventually pathology. By 2010, he ha d retired but wanted to return to work. Because he could not find work in pathology, he accepted the Staple tons’ offer to serve as their interim pain medicine doctor until they could hire a Board-certified pain mana gement doctor. Arny started at the clinic in August 2010. He inherited most of Saxman’s patients, and Arny typically continued Saxman’s treatment plans for returning patient s, although he would so metimes decrease the dosages that she had prescribed. After only a month, Arny gave the contractually-required 90- day notice, leaving in December 2010, based on his realization that he was not a “good fit” for the job and because he felt that he could not spend enough time with his patients to adequately treat them. DE 308, Trial Tr., Page ID 2313. Ar ny soon returned, however, when the Stapletons offered to double his pay to $240 per hour and agreed to make changes so he could better serve his patients. He stayed until September 2011.No. 15-6130 United States v. Arny Page 3

In August 2012, a grand jury indicted Arny, the Stapletons, and Arny’s successor, Emmanuel Acosta, M.D. The Stapletons pled guilty. 1 Arny hired attorneys Stephen Owens and Wesley Varney (“trial counsel”). More than two years later, in September 2014, Arny went to trial. The government had the burden of proving that Arny conspired with others to distribute
controlled substances “outside the course of ordinary medical practice.” DE 279, Jury Instructions, Page ID 1436. “To show that drugs were distributed outside the ordinary course of medical practice,” the government was required to “prove beyond a reasonable doubt that when the drugs were distributed they were not distri buted (1) for a legitimate medical purpose, and (2) in the usual course of medical practice.” Id. at 1439.
To prove these elements, the government presented the videotaped deposition of expert witness David Paul Harries, M.D., who is a physic ian licensed to practice medicine in Kentucky and who works at a pain manageme nt facility. Dr. Harries review ed Arny’s records and testified that Arny did not examine his pati ents, did not have valid docto r-patient relationships, did not have a “legitimate medical practice,” and prescr ibed “near toxic” doses and potentially deadly combinations of medications. DE 284-1, Harries Dep., Page ID 1579, 1630. The government also called four of Arny’s patien ts, who testified that they were drug addicts or dealers and did not have a legitimate need for pain medicati on. The government provide d at least one patient witness, Kimberly Preston, with immunity. “In tota l, the government called 15 witnesses, including the Stapletons , two detectives, and an official from the Kentucky Board of Medical Licensure (“KBML”).” United States v. Arny , 137 F. Supp. 3d 981, 985 (E.D. Ky. 2015).
Arny’s trial counsel called on ly three witnesses in his defense, including Arny, who testified that he usually continued Saxman’s tr eatment plans for returni ng patients. Although he repeatedly asked trial counsel to call Saxman as a witness to explain her treatment plans, trial counsel failed to do so. In fact, Varney misreprese nted to Arny that “Saxman has either a deal in place or soon will be indicted” and that “her Le xington clinic was searched.” DE 405-1, Emails, Page ID 2818–19. Although Owens was copied to this email, he never replied to it or clarified that, as he later testified, this information was false. Trial counsel eventually agreed to serve Saxman with a subpoena, but the process server reported that she was out of the country.

1 After Arny’s trial, Acosta pled guilty.No. 15-6130 United States v. Arny Page 4

According to Arny, trial counsel misrepresented to him that Saxman would not return to the country or be available for trial, although Saxman actually returned to the United States weeks before Arny’s trial started. At an evidentiary hearing following trial, Owens explained that they failed to call Saxman to testify because, unlike Arny, she personally examined all of her patients and because her testimony could ha ve harmed Arny’s case.
Trial counsel also called William Ackerman, M.D., a specialist in pain medicine, as an expert witness for Arny. Ackerman testified that KBML rules di d not require Arny to see every patient during every visit and opined that Arny was not involved in the criminal conspiracy. However, Ackerman also provided damaging test imony to Arny, such as his statement that Arny
“had no standard of care” and that a doctor e ngaged in pain treatmen t should “definitely” be trained in pain management. DE 281, Ackerman Dep., Page ID 1499–1500, 1512–13. 2

The other witness called by trial counsel was Tina Stapleton’s mother, Ivory Castle, who
had worked at the clinic with Arny. Trial counsel had not met with Castle prior to calling her to the stand. Additionally, trial counsel failed to inte rview or call to the stand any of Arny’s former patients. After the trial, however, Arny was able to produce six affidavits from former patients whose testimony would have helped his defense.
After the three-day trial, th e jury convicted Arny, and the district court denied Arny’s motion for a judgment of acquittal under Rule 29. After conviction, but prior to sentencing, Arny hired new attorneys, who filed a Rule 33 motion for a new trial based on trial counsel’s ineffective assistance. After ordering suppl emental briefing and conducting an evidentiary hearing, the district court issued a thorough and well-written opinion, gr anting Arny’s motion for
a new trial.

2 During closing argument, the government turned Ackerman’s testimony against Arny: “I listened to the testimony of Dr. Ackerman. In some ways—and I say this as a joke—I feel like he should have been a prosecution witness. Felt like maybe we should send him a check because he certainly wasn’t on the side of Dr. Arny. Not in the slightest.” DE 307, Trial Tr., Page ID 2275.No. 15-6130 United States v. Arny Page 5

II.

A.

We review a district court’s decision to grant or deny a moti on for a new trial for abuse of
discretion. United States v. Soto , 794 F.3d 635, 645 (6th Cir. 2015). A district court abuses its discretion “when it relies on clearly erroneous findi ngs of fact, uses an erroneous legal standard, or improperly applies the law.” United States v. Dado , 759 F.3d 550, 559 (6th Cir. 2014) (quoting United States v. White , 492 F.3d 380, 408 (6th Cir. 2007)).

However, we review ineffectiv e assistance of counsel claims de novo , as they present mixed questions of law and fact. United States v. Munoz , 605 F.3d 359, 366 (6th Cir. 2010) (quoting Railey v. Webb , 540 F.3d 393, 415 (6th Cir. 2008)). As this court has explained:
It is of no consequence that the ineffective-assistance claim in this case is presented in the atypical context of an overarching new-trial-motion determination, which . . . is reviewed fo r abuse of discretion. This is because mixed questions of law and fact involve the application of law to fact, and an improper application of the law c onstitutes an abuse of discretion.

Id. (quotation marks and internal citations omitted ). Although the district court was in a unique position to assess the errors of counsel and the eff ect of those errors on the outcome of the case,
we review the district court’ s Sixth Amendment determination de novo

.

B.
Rule 33 provides that “[u]pon the defendant ’s motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires.” Fed. R. Crim. P. 33(a). 3 Although the Rule does not define “interest of justice,” a viol ation of a defendant’s Si xth Amendment right to
the effective assistance of trial counsel constitutes a “s ubstantial legal error” such that a new trial
is warranted. Munoz , 605 F.3d at 373–74 (gathering cases).

3 Rule 33 requires a defendant seeking a new trial based on any ground other than newly discovered evidence to do so within 14 days after the guilty verdict. Fed. R. Crim. P. 33(b)(2). Arny’s motion was filed more than five months after the jury returned its verdict. Nevertheless, the district court, relying on Munoz , 605 F.3d at 371, granted Arny leave to file the late motion pursuant to Rule 45(b), finding excusable neglect for the delay in that Arny was still represented by his trial counsel during the 14-day period. The government does not appeal the excusable neglect finding.No. 15-6130 United States v. Arny Page 6

This court has previously questioned whether a district court may grant a new trial based on “lackluster representation that does not fall below the constitutionally required standard,” i.e. , “ineffective assistance light.” Id. at 362, 374–76. This theory is based on the “broad standard” embodied in Rule 33’s “interest of justice” langua ge, which arguably gives the district court the discretion to grant a new trial even if no “specific legal error occurred at trial.” Id. at 374 (quoting United States v. Scroggins , 379 F.3d 233, 256–57 (5th Cir. 2004), vacated on other grounds , 543 U.S. 1112 (2005)). However, Strickland v. Washington advises that “[t]he principles governing ineffectivene ss claims should apply in federal collateral proceedings as they do on direct appeal or in motions for a new trial ,” which has led the Court of Appeals for the Fifth Circuit to hold that “in order to properl y grant a new trial on such a ground, the district
court must be able to determine that the Strickland prejudice test is met.” United States v. Logan , 861 F.2d 859, 864 (5th Cir. 1988) (quoting Strickland v. Washington , 466 U.S. 668, 697 (1984)). It does not appear that a single court of appeals has a dopted the “ineffective assistance light” standard, 4 and we find it unnecessary to answer th e question here, as Arny’s trial counsel
failed to adhere to the constitutional standard set forth in Strickland

.
C.
To prevail on his ineffectiv e assistance of counsel claim, Arny must first “show that counsel’s performance was deficient” by “an objec tive standard of reasonableness,” meaning that
trial counsel “made errors so serious that couns el was not functioning as the ‘counsel’ guaranteed [him] by the Sixth Amendment.” Strickland , 466 U.S. at 687–88. “Judici al scrutiny of counsel’s performance must be highly deferential.” Id. at 689. At all times, there is a “strong presumption
that counsel’s conduct falls with in the wide range of reasonab le professional assistance.” Id. “Second, [Arny] must show that the deficient pe rformance prejudiced the defense,” meaning that “there is a reasonable probability that, but for c ounsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 687, 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694.

4 As recognized by this court in Munoz , the Court of Appeals for the Distri ct of Columbia stated that “a more powerful showing of inadequacy [of counsel] is necessary to sustain a collateral attack than to warrant an order for new trial.” Munoz , 605 F.3d at 375 (quoting Bruce v. United States , 379 F.2d 113, 117 (D.C. Cir. 1967)). However, the D.C. Circuit has never squarely adopted th e “ineffective assistance light” theory, and cases such as Bruce predate Strickland , which further calls into question the import of such language.No. 15-6130 United States v. Arny Page 7

The district court based its finding on three deficiencies: (1) trial counsel’s misrepresentation that the government had told them that Saxman either had a plea deal or would
be indicted soon and that her Lexington clinic was s earched; (2) trial c ounsel’s failure to interview Saxman or call her to testify in order to explain the legitimacy of her treatment plans that Arny continued; and (3) trial counsel’s failu re to investigate or interview any of Arny’s patients.

1.

i.

The district court concluded that trial counsel’s performa nce was deficient based on the
lie that Saxman would be indict ed or offered a plea deal, which both deprived Arny of making an
informed decision and constituted “conduct involving dishonesty, fraud, deceit, or misrepresentation.” Arny , 137 F. Supp. 3d at 987 (quoting Model Rules of Prof’l Responsibility 1.4(b)). On appeal, the government argues that because Varney, the author of the email in question, was not called to testify at the evidentiary hearing, the di strict court “went too far” in classifying the email as a “lie.” Appellant Br . at 28–29. Rather, the government suggests, the email may have been “the product of a misunderstanding or confusion.” Id. at 29.
Although Varney did not testify during the evidentiary hearing, Owens did. Owens testified that the prosecutor neve r told him that Saxman had a de al in place or would soon be indicted. Further, Owens was copied on the em ail in question. Even if Varney himself was confused, as the government suggests, Owens kn ew the email contained a falsehood. Regardless of whether Varney intentionally li ed to Arny or merely misrepresented that Saxman had a deal or would be indicted, the falsehood combined with Owens’ knowledge th ereof and failure to correct his co-counsel’s mistake constitutes deficient performance.

ii.
Although trial counsel had received discove ry from the government regarding Saxman, they failed to even interview her, despite Arny’s repeated requests that she testify at his trial in order to prove that he had prescribed the drugs for a legitimate medical purpose. The districtNo. 15-6130 United States v. Arny Page 8

court found that trial counsel’s fa ilure to interview Saxman was unreasonable. As it did before the district court, the governme nt, on appeal, asserts that becau se Saxman’s testimony would not support Arny’s defense that the St apletons took advantage of him, trial counsel’s decision not to interview her was strategic.
However, the proper inquiry asks “not whether counsel’s choices were strategic, but whether they were reasonable .” Roe v. Flores-Ortega , 528 U.S. 470, 481 (2000) (emphasis added). “Courts have not hesita ted to find ineffective assistance in violation of the Sixth
Amendment when counsel fails to conduct a reasonable inve stigation into one or more aspects of the case and when that failure pr ejudices his or her client.” Towns v. Smith , 395 F.3d 251, 258 (6th Cir. 2005). In Towns , this court found that trial counsel’s failure to conduct a reasonable investigation into a “k nown and potentially important witne ss” violated the petitioner’s Sixth Amendment right to the effective assistance of counsel. Id. at 259 (quoting Blackburn v. Foltz , 828 F.2d 1177, 1183 (6th Cir. 1987)). Although couns el acknowledged the n eed to contact the potentially important witness, counsel failed to do so, which constituted an abandonment of the “investigation at an unreasonable juncture,” thereby “making a fully informed decision . . . impossible.” Id. at 258–59 (quoting Wiggins v. Smith , 539 U.S. 510, 527–28 (2003)). Therefore, this court held that it was objectively unreasonable to pursue a trial “strategy” that does not require interviewing a w itness, despite the fact that the witness is “known and potentially important.” Id. at 259.
Likewise, in this case, it was objectively unr easonable for Arny’s tria l counsel to fail to
interview Saxman. Trial counsel knew that fo r many patients Arny simply continued Saxman’s treatment plan. However, Saxman was not indicted and was, in fact, still practicing medicine. Therefore, her testimony might have persuaded th e jury to find that Arny’s prescriptions were “for a legitimate medical purpose” and “in the usual course of me dical practice.” Thus, as in
Towns , trial counsel acknowledged the need to interview a potentially importa nt witness, but failed to do so. Although Saxman was out of the country on June 30, 2014, when the process server attempted to contact her, she returned on July 15, 2014, a pproximately two months before the start of trial. Those two months provided trial counsel ample time to attempt to serve a second subpoena on Saxman. Because of trial counsel’s failure to interview Saxman, Arny wasNo. 15-6130 United States v. Arny Page 9

left without her potentially pow erful testimony. Though the governme nt argues that “strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable,” Appellant Br. at 32 (quoting Davis v. Lafler , 658 F.3d 525, 537 (6th Cir. 2011)), Arny’s trial counsel failed to make a reasonable, “thorough investigation” of Saxman’s potential testimony. Therefore, tr ial counsel’s decision could not constitute a reasonable “strategic choice.” In conclusion, trial counsel’s failure to conduct a “thorough investigation” of Saxman before declining to call her to testify at trial constitutes deficient performance.

iii.
The government called four of Arny’s former patients as witnesses against him, who all testified that they were drug addicts or dealer s who did not have a legitimate need for pain medication. In contrast, Arny’s tr ial counsel not only fa iled to call any of his other former patients as witnesses, but they also failed to in terview any of them. In making that decision, Arny’s trial counsel relied solely on the information contained in patient file s. The district court concluded that “[t]he record cont ains no evidence that the decision not to investigate or interview these patients was strategic; ra ther, it stems from neglect.” Arny , 137 F. Supp. 3d at 990 (citing
United States v. Six , 600 F. App’x 346, 351 (6th Cir. 2015)). The government takes issue with the district court’s conclusion, asserting that because Arny “pre scribed large amounts of neartoxic dosages of controlled substances without legitimate medical purposes,” and because “[s]ome of these patients testified that they we re addicts who took some pills and sold others,” calling “other former patients would have done more harm than good.” Appellant Br. at 30–31.

In Strickland , the Supreme Court held that “counsel has a duty to make reasonable investigations or to make a reasonable decision th at makes particular investigations unnecessary. In any ineffectiveness case, a part icular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applyi ng a heavy measure of deference to counsel’s judgments.” 466 U.S. at 691. Although counsel n eed not investigate all potential witnesses, see Jackson v. Warden , 622 F. App’x 457, 463 (6th Cir. 2015) (citing Bigelow v. Williams , 367 F.3d 562 (6th Cir. 2004)), counsel is required to inves tigate fruitful le ads that a reas onable attorney would pursue, see id. at 462–63 (gathering cases). “[S]trategic choices made after thoroughNo. 15-6130 United States v. Arny Page 10

investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgment s support the limitations on investigation.” Davis , 658 F.3d at 537 (alteration in orig inal) (emphasis added) (quoting Strickland , 466 U.S. at 690– 91).
Because they were not aware of the helpfu l testimony that some of his former patients could have provided, Arny’s trial c ounsel were not in a position to make an informed, strategic
decision about the best defense strategy to present. The jury heard testimony only from the patient witnesses presented by th e government, who were drug abus ers or dealers, leading them to infer that all of Arny’s other patients were in a similar situation. However, Arny had former patients who could have testified to the contrary. Specifically, Ja mes Bevins could have testified that he suffered from legitimate chronic pain from a motorcycle accident that caused two cracked vertebrae. Also, some of the government’s patie nt-witnesses testified that Arny did not change their prescriptions, which could have led the juryto the conclusion that it was Arny’s practice to blindly continue the same treatment plans for all of his patients. However, other former patients could have testified to the contrary on this point . For example, Jamie Adkins could have testified that Arny reduced his doses of muscle relaxer and Xanax. Generally, had trial counsel sought other patient-witnesses, Arny c ould have benefited from their testimony that he was a good doctor who provided them “quality health care se rvices.” DE 434-3, Blair Decl., Page ID 3127.

Trial counsel made an unreasonable deci sion when they neither investigated nor interviewed Arny’s previous patients, as this decision shirked their duty to “investigate all witnesses who may have information concerning his or her client’s gui lt or innocence.” Towns , 395 F.3d at 258. As with Saxman, Arny also aske d trial counsel to call former patients as
witnesses in his defense. Trial counsel’s decision to selectively review patient files “may explain why counsel chose not to investigate other patient files , but it does not explain why counsel
failed to interview some of Dr. Ar ny’s previous patients to determine if any of them could offer testimony helpful to Dr. Arny.” Arny , 137 F. Supp. 3d at 990. Moreover, trial counsel knew from discovery that the government intended to call some former patients as witnesses; this, together with Arny’s request that the jury hear from patients he had legitimately helped, shouldNo. 15-6130 United States v. Arny Page 11

have spurred trial counsel to at least contact so me former patients. Tr ial counsel’s failure to investigate and interview some of Arny’s former patients wa s an unreasonable decision, which
led to the uninformed decision not to call any of Arny’s other pa tients to testify. See Clinkscale
v. Carter , 375 F.3d 430, 443 (6th Cir. 2004).

2.
Turning to step two of the Strickland inquiry, we must ask whether trial counsel’s deficient performance prejudiced his defense. See 466 U.S. at 694–96. Arny must demonstrate a “reasonable probability that, but for counsel’s unpr ofessional errors, the result of the proceeding
would have been different.” Id. at 694. When counsel’s represen tation is deficient in several respects, as in this case, this court does not m easure the result of each individual error, but “consider[s] the errors of counsel in total, agai nst the totality of the ev idence in the case.” Stewart v. Wolfenbarger , 468 F.3d 338, 361 (6th Cir. 2006) (citing Strickland , 466 U.S. at 695– 96); see also Dado , 759 F.3d at 563 (“[E]xamining an ine ffective assistance of counsel claim requires the court to consider ‘the combined effect of all acts of counsel found to be constitutionally deficient, in light of the totality of the evidence in the case.’” (quoting Lundgren
v. Mitchell , 440 F.3d 754, 770 (6th Cir. 2006))).
The government argues that because its case against Arny was strong and the jury
deliberated for less than thre e hours, the testimony of Saxman and Arny’s patients would not have changed the outcome of the trial. Furthe r, the government claims that Saxman’s testimony would have been more harmful than helpful, b ecause although she may have testified that she prescribed medically a ppropriate drugs and dosages that Ar ny often continued, she “did not prescribe drugs to returning patients without ex amining them and determining the effectiveness of treatment,” which was in contrast to Arny’s practices. Appellant Br. at 32–33.
To find Arny guilty of conspi racy to distribute and unlawfully dispense prescription pain medications, the government was required to prove beyond a reasonable doubt that Arny had conspired to distribute controlled substances “outside the course of ordinary medical practice.” DE 279, Jury Instructions, Page ID 1436–37. We are tasked with determini ng whether there is a reasonable probability that Saxman’s and Arny’s former patients’ testimony would have led theNo. 15-6130 United States v. Arny Page 12

jury to have reasonable doubt that Arny acted wi thout a “legitimate medical purpose” or outside the “usual course of medical practice.” See id. at 1439.
The government asserts that because Arny testified but was found guilty, “[t]he jury obviously did not think that his account established legitimate me dical purposes for prescribing pain medications in the ordinary course of professional practice.” Appellant Br. at 38–39. However, there is a reasonable pr obability that Sa xman’s testimony that she, as a practicing pain management specialist, had prescribed the same “near toxic” combination that Harries described, would have demonstrated that there was a legitimate medical purpose for prescribing that
combination of medication. As stated by the district court:
She could have testified that, although she created the treatment plans on which Dr. Arny relied, she continues to practi ce medicine, and the government has not investigated, arrested, or charged her. Any lay person hearing this would surely have serious questions about whether thes e combinations of medication were truly toxic. Moreover, Dr. Saxman could ha ve explained why sh e prescribed those combinations of pills to specific patients. Her testimony, therefore, would have allowed defense counsel to argue that a reasonable doctor would have—and in fact, did—prescribe the combination of medications that Dr. Arny was prescribing. So her testimony could ha ve shown that there was a legitimate medical purpose for these prescriptions.
Arny , 137 F. Supp. 3d at 991.
Admittedly, Saxman’s testimony that she always saw every patient on their return visits, whereas Arny would sometimes refill prescriptions for his patients without seeing them in person, may not have helped Arny’s defense. Howe ver, the expert witnesses for both the defense and the government stated that the applicable regulations did not require Arny to see every patient on every visit. Moreover, Saxman’s tes timony on that point would have been cumulative and not necessarily harmful to Arny. The jury instructions do not make it a crime to not personally see each patient at each visit; in fact, th e district court instructed the jury that “[y]ou may not convict the defendant merely because he acted negligently or failed to follow a rule or proper medical standards.” DE 279, Jury Instructions, Page ID 1439. When viewed against the totality of the evidence, Saxman’s testimony would have helped refute the government’s argument that Arny distributed controlled substa nces outside the ordina ry course of medicalNo. 15-6130 United States v. Arny Page 13

practice and helped to establish that he prescribed the medication for a legitimate medical

purpose.
Likewise, testimony from patients whom Arny helped would have rebutted the government’s evidence that his prescriptions lack ed a legitimate medical purpose. Trial counsel could have called former patients to testify that they were not drug abusers but rather had a legitimate medical need for pain medication. Fo r example, James Bevins could have testified that Arny prescribed him pain medications for chronic pain he suffered as a result of a motorcycle accident. Bevins also could have testified that he was examined monthly from September 2010 through September 2011 and that Arny adjusted his medications as necessary, which would have countered the government’s theory that Arny did not establish legitimate doctor-patient relationships . From this one witness, the jury would have been left with the impression that not all of Arny’s patients were si milar to the drug abusers and dealers called by the government.
The affidavits of five other patients whom Arny treated would have further weakened the government’s argument that Arny distributed drugs outside the usual medical course and without a legitimate purpose. For example, Annette Blair would have testified that “Dr. Arny was a good doctor and provided me with quality health care services.” DE 434-3, Blair Decl., Page ID 3127. Similarly, each of the six patien ts that Arny’s new counsel locat ed, with advance notice of only four business days, 5 would generally have countered the government’s story about Arny’s modus operandi . The government argues that “even if Dr. Arny’s former patients could have shown that Dr. Arny have [sic] a vali d doctor-patient relationship with them, such testimony would not contradict the testimony that Dr. Arny illegally prescrib ed drugs to other pa tients.” Appellant Br. at 36. In fact, Arny’s trial counsel presen ted no evidence to counte r the damaging testimony of the government-selected former patients; ce rtainly, the helpful testimony of six of Arny’s former patients would have shifted the jury’s reasoning on whether Arny acted in the usual course of medical practice.

5 After Arny moved for a new trial, the district court ordered him to provide evidence related to his former patients. Four business days later, he submitted six affi davits from previous patients whom he helped or whose testimony would be helpful to his case.No. 15-6130 United States v. Arny Page 14

The testimony of Saxman and the former patients establish a “reasonable probability that, but for [trial] counsel’s unprofessional errors, the result of the proceeding would have been
different.” See Strickland , 466 U.S. at 694. Their testim ony would have gone to the key
elements of unlawful distribution of controll ed substances: whether the substances were distributed for a legitimate medical purpose and whether they were distributed in the usual course of medical practice. Ar ny met his burden and establishe d that his trial counsel rendered ineffective assistance of counsel, which entitles him to a new tria l pursuant to Federal Rule of
Criminal Procedure 33.

III.

For the reasons stated herein, we affirm.