FOR PUBLICATION



### UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

U NITED S TATES O F A MERICA
, Plaintiff

- Appellee

,

v.

D AVID J AMES G ARRISON
, Defendant

- Appellant. No. 15

- 50137

D.C. No.
2:11

- cr

- 00922

- DDP

- 6

OPINION

Appeal from the United States District Court
for the Central District of California Dean D. Pregerson, District Judge, Presiding

Submitted March 6, 2018 * Pasadena, California

Filed April 25, 2018

Before: Ronald M. Gould and Mary H. Murguia, Circuit Judges, and Dana L. Christensen, ** Chief District Judge.

Opinion by Judge Gould

* The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

** The Honorable Dana L. Christensen, Chief United States District Judge for the District of Montana, sitting by designation.2 U NITED S TATES V

. G ARRISON

SUMMARY ***

Criminal Law

The panel affirmed a conviction for conspiracy to
distrib ute controlled substances in violation of 21 U.S.C. § 846, in a case in which the government offered evidence
that the defendant and his co

- conspirators had abused their positions as healthcare providers by intentionally prescribing OxyContin for no legiti mate medical purpose as part of a scheme to sell the drug on the street.

The panel held that the evidence was sufficient to allow a reasonable jury to draw the inference that the defendant was prescribing OxyContin with the intent to do so for no legitima te purpose, and was sufficient to lead a reasonable jury to conclude that the defendant had agreed to further the scheme to illicitly distribute OxyContin.

The panel also held that there is no error in the remedies the trial court crafted for the governme nt’s late disclosures or in the jury instructions the court gave regarding the abrupt departure of two co

- defendants from the trial and the dismissal of charges against a third co

- defendant.

*** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.U NITED S TATES V

. G ARRISON 3

COUNSEL

Michael R. Belter (argued), Salinas, California, for
Defendant

- Appellant.

Angela J. Davis, Assistant United States Attorney, Major Frauds Section; Lawrence S. Middleton, Chief, Criminal Division; United States Attorney’s Office, Los Angeles, California; for Plaintiff

- Appellee.

OPI NION

GOULD, Circuit Judge:

After a jury trial, David James Garrison was convicted
of conspiracy to distribute controlled substances in violation
of 21 U.S.C. § 846. During trial, the government offered
evidence that Garrison and his co

- conspirators had ab used their positions as healthcare providers by intentionally prescribing OxyContin, a powerful opioid pain reliever, for no legitimate medical purpose as part of a scheme to sell the drug on the street. Garrison appeals his conviction, arguing (1) that t here was insufficient evidence to support his conviction, and (2) that the district court should have dismissed the charges against him, acquitted him, or granted him a mistrial because the government did not timely
disclose certain information. We affirm

.

I

There is now an epic crisis of deadly opioid abuse and overuse. In 2016, roughly 11.5 million people in the United States misused prescription opioids. U.S. Dep’t of Health and Human Services, About the U.S. Opioid Epidemic (2018), https://www.hhs.go v/opioids/about

- the

- epidemic/4 U NITED S TATES V

. G ARRISON

(last visited March 8, 2018). That same year, 116 people on average died every day from opioid

- related drug overdoses.
Id. And in 2017, the Acting Secretary of Health and Human Services declared the national opioid abuse ep idemic a public health emergency. U.S. Dep’t of Health and Human Services, HHS Acting Secretary Declares Public Health Emergency to Address National Opioid Crisis (2017), https://www.hhs.gov/a bout/news/2017/10/26/hhs

acting

- se cretary

- declares

- public

- healt h

- emergency

addres s

- national

- opioid

- crisis.html (last visited March 8, 2018)

.

In the midst of this crisis, we trust doctors and healthcare professionals to be conscientious gatekeepers to these dangerous and potentially fatal drugs. But unfortunately some medical professionals betray their duty to do no harm as healthcare providers and abuse their prescription pads. This is exactly what happened at the Lake Medical Group clinic (the “Clinic”), where Garrison worked as a licensed physician’s assistant from summer 2009 until t he Clini c was closed in February 2010.

The Clinic was what is often described as a “pill mill,” and the activities of people working there led to the illicit

street

- sale of more than a million maximum

- strength OxyContin tablets. From August 2008 to September 2010, the Clinic generated 13,207 p rescriptions for OxyContin

— all but six of which were for the drug’s maximum dosage. The Clinic employed “patient recruiters” who induced people living in homeless shelters and rescue missions to visit the Clinic. These of course were not true “patients” in the ordinary sense of that word. The Clinic would then use
the names and Medicare or Medi

- Cal cards of the recruited patients to generate fraudulent OxyContin prescriptions. The recruited patients did not retain the OxyContin that theyU NITED S TATES V

. G ARRISON 5

were prescribed . Instead, people working for the Clinic retrieved the drug from participating pharmacists or from the recruited patients, and the Clinic operators then had the pills sold illegally. The government learned of the Clinic’s operations and took steps to shu t the Clinic down and prosecute those it believed responsible for the scheme.

A

On September 28, 2011, Garrison and eleven other
codefendants were indicted. Garrison was indicted for conspiracy to distribute controlled substances in violation of
21 U.S.C. § 846, based on his alleged role in the conspiracy to distribute OxyContin for no legitimate medical purpose. 1 A second superseding indictment was filed, and the case proceeded to trial. Garrison was tried with four alleged co

conspirators: Elza Budagov a, who acted as a medical assistant at the Clinic, and pharmacists Theodore Yoon, P hic Lim, and Perry Tan Nguyen.

An expert testified that there were indications from the Clinic’s medical files that the prescriptions from the Clinic were not for a proper m edical purpose. Many files had minimal patient histories and in other files the patient histories were virtually identical, indicating that they had been forged. Further, there was expert testimony that immediately prescribing maximum strength OxyContin, as was done at the Clinic, was not a proper medical practice.

At trial, the government offered documentary and testimonial evidence against Garrison. Garrison stipulated

1 Other codefendants were charged with conspiracy to commit health care fraud, 18 U.S.C. § 1349; unli censed wholesale distribu tion of prescription drugs, 21 U.S.C. §§ 331(t), 333(b)(1)(D), 353(e)(2)(A); and aiding and abetting , 18 U.S.C. § 2.6 U NITED S TATES V

. G ARRISON

that he wrote and signed hundreds of prescriptions for OxyContin with similar diagno ses on the prescription pads of other medical professionals. Garrison also agreed that it was his handwriting on numerous prescriptions for OxyContin that appeared to have been pre

- signed by other persons working at the Clinic. He also signed and left bl ank prescription forms in his own name, apparently for the use of others in making prescriptions to t he phony patients.

Recruited patients testified at trial that they had never been examined by anyone at the Clinic, yet their medical
files reflected that they had been given an OxyContin prescription in Garrison’s handwriting, though on other physicians’ prescription pads. There was also video evidence of Garrison prescribing OxyContin to a person posing as a recruited patient after a six minute interactio n. A medical expert testified that there was no medical need for that OxyContin prescription.

Garrison also lied to an investigator about the extent of the physician oversight he received at the Clinic

— claiming that almost all of his patient examinations were signed off on by a physician, whereas the investigator found that the vast majority of Garrison’s examinations were not cos igned by a licensed physician.

Two cooperating witnesses testified against Garrison: Eleanor Santiago and Julie Shishalovsky. S antiago, a former licensed physician, had pled guilty to health care fraud after falsifying Medi

- Cal claims while she was working at the Clinic. Santiago testified that the Clinic was a pain management clinic with a focus on people suffering from
chronic pain, which meant that many of the patients had already tried to use less intense pain medications. She testified that Garrison saw patients without her oversight and that Garrison had prescribed OxyContin on a prescriptionU NITED S TATES V

. G ARRISON 7

slip that Santiago had pre

- sign ed. Santiago also testified that Garrison would sometimes give her medical charts to cosign, and that she had noticed that he had prescribed all his patients OxyContin. She told Garrison that some of the patients did not need that drug, but he continued prescribing OxyContin for them anyway.

Shishalovsky worked as a receptionist at the Clinic and testified that the Clinic’s operators directed that all of the Clinic’s patients should be prescribed the highest strength OxyContin, even when there was no need for OxyContin. She also testified that Garrison completed pre

- signed prescriptions “very often,” and also pre

- signed his own prescriptions.

Garrison made extensive efforts to impeach the credibility of both of these witnesses, stressing that they both
ha d criminal records and had engaged in fraudulent conduct in the past. Garrison did not call any witnesses of his own in his defense. Garrison’s main line of defensive argument was that he was not aware of the conspiracy and that he did not knowingly part icipate in the conspiracy.

B

Before and during trial, the government made grave mistakes in its prosecution of the case by repeatedly failing to timely disclose information to the defense, as was required by law. First, a witness who testified at trial, B ernard Harris, admitted at trial that he had submitted a false medical report to his probation officer and to a judge, and Harris said that Santiago and Shishalovsky helped him fabricate the record. The government questioned Santiago about Harris’s

statem ent the morning before she testified, and she admitted that she had helped falsify the medical records. But the government did not turn over its notes documenting8 U NITED S TATES V

. G ARRISON

Santiago’s statement to the defense, although it questioned Santiago about assisting in the falsification during her trial testimony. Santiago testified that she had helped falsify a letter regarding Harris’s medical records. Shishalovsky also admitted during trial to falsifying medical records, and the government stated that Shishalovsky had t old them about this months before trial, although, the interview report from that discussion did not contain this pertinent disclosure.

Also, the government delayed turning over to the defense documents relating to Shishalovsky’s plea negotiations with
the government until a couple of days before Shishalovsky testified. The government has conceded that it should have turned over this information much sooner pursuant to Giglio v. United States , 405 U.S. 150 (1972), which requires the disclosure of promises made to witnesses in exchange for their testimony. Importantly, the newly

- disclosed negotiations informed the defense for the first time that in exchange for testimony, the government agreed that Shishalovsky would be able to continue working in the
healt hcare field. The government failed to disclose this agreement, either during Shishalovsky’s sentencing or during her direct testimony at trial. The district judge was also belatedly informed of this agreement, and during a break in Shishalovsky’s testimo ny the court advised the jury of the government’s and Shishalovsky’s failure to disclose this agreement, and told the jury that it could consider this background in evaluating Shishalovsky’s credibility. The judge also commented to the jury on the irregul arity of the agreement.

There were other problems with disclosure. Matthew Cho was an alleged co

- conspirator and a former pharmacist. Cho and two other codefendants, Yoon and Lim, entered intoU NITED S TATES V

. G ARRISON 9

a joint defense agreement. 2 Shortly before trial, Cho’s

coun sel emailed a letter to the government and to counsel for Yoon and Lim that appeared to cover information shielded by the joint defense agreement

. The government then
realized that other letters that it had received from Cho’s counsel might also contain i nformation that should have been protected under the joint defe nse agreement.

The government also learned that Cho had been forwarding confidential information that was potentially covered by the joint defense agreement to his FBI agent
brother. Those ema ils concerned how Cho might get a deal from prosecutors in exchange for his testimony. The district
court characterized those emails as material that should have been turned over pursuant to Brady v. Maryland , 373 U.S. 83 (1963), which requires a prosecut or to turn over potentially exonerating evidence to the defense. The government agreed that it did not timely inform the defense of Cho’s discussions with his FBI agent brother. Cho was
not called as a trial witness.

Weeks into trial, the government move d to dismiss its charges against Yoon and Lim. The government conceded that it had repeatedly failed to timely turn over Brady and Giglio evidence, and that it accepted Yoon’s and Lim’s counsel’s representation that Cho’s counsel had wrongfully
disclosed evidence that prejudiced Yoon and Lim. The district court granted the motion and also dismissed the charges against pharmacist defendant Nguyen that had also

2 A joint defense agreement extends attorney

- client privilege to disclosures made between the attorneys for codefe ndants , between
codefenda nts, and between one codefendant to another codefendant’s attorney

. See United States v. Gonzalez , 669 F.3d 974, 978 (9th Cir. 2012)

.10 U NITED S TATES V

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been brought against Yoon and Lim, leaving only the charge against Nguyen for financial structuri ng of transactions to avoid reporting requirements in violation of 31 U.S.C. § 5324(a)(3). The district court then gave an instruction telling the jury not to read anything into the fact that Yoon and Lim were no longer part of the case and that counts ha d
been dismissed against Nguyen.

Garrison moved for a dismissal or mistrial arguing that the government’s discovery violations prejudiced him and
that Yoon’s and Lim’s sudden absences from the trial inescapably would lead the jury to assume that Garrison w as guilty. Although the government conceded that it had failed to timely produce all of the material to which the defense was entitled, it argued that any prejudice would be cured by jury instructions. The government also noted that Garrison was not a pa rty to the joint defense agreement. The district
court denied Garrison’s motion.

At the close of trial, the district court instructed the jury by advising of the government’s failure to timely comply with its constitutional obligations, and telling the ju ry that it
could draw adverse inferences from this failure. The court also advised the jury that this consideration could lead the jury to find reasonable doubt as to Garrison’s and his codefendants’ guilt. 3 The jury was again instructed not to

3 The instruction the district court gave was as follows:

Under the United States Constitution, in order for the defendant to receive a fair trial, the Government must inform the Defense of any information known to the Government that tends to suggest the defendant might not have committed the crimes or crime cha rged

. . . and any information that casts doubt on the credibility
of the Government’s own evidence. In this case, theU NITED S TATES V

. G ARRISON 11

speculate as to the reason for Yoon’s and Lim’s absences from the trial or to draw inferences for or against the remaining defendants based on Yoon’s and Lim’s absences. 4 Upon being instructed, the jury deliberated and delivered a verdict finding all the remaining defendants guilty.

Garrison again moved for a new trial or for an acquittal, arguing (1) that the government’s Brady and Giglio violations required a new trial; (2) that Yoon’s and Lim’s
dismissal in the midst of the trial and the dismissal of a portion o f the charges against Nguyen prejudiced Garrison; and (3) that there was insufficient evidence to convict Garrison. The district court denied this motion, explaining that it considered Garrison to be differently situated from the pharmacist defendants and that it was not uncommon for
some defendants to be dismissed from a multi

- defendant trial during trial. Additionally, the district court reasoned that there was significant documentary evidence against

Government violated those important Constitutional principles upon which the fair administration of our system of justice depends on mul tiple occasions. In evaluating the merits of this case, you can decide what weight, if any, to give to the Government ’ s violations of these Constitutional principles. The Government ’ s actions standing alone or in combination with other facts presented in this case, may create a reasonable doubt in your mind about the de fendant’s guilt.

4 The instruction the district court gave was as follows:

For reasons that do not concern you, the case [s] against
defendants Theordore Yoon and Phic Lim are no longer befo re you. Do not speculate why. This fact should not influence your verdicts with reference to the remaining defendants. And you must base your verdict solely on the evidence against the remaining
defendants.12 U NITED S TATES V

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Garrison separate and apart from any witness testimo ny. The parties then proceeded to sentencing where Garrison
received a 120

- month sentence. Garrison appeals.

II

When faced with a sufficiency of the evidence challenge, we “must consider the evidence presented at trial in the light
most favorable to the prosecution” and then must determine whether the evidence is sufficient to allow “any rational trier of fact to find the essential elements of the crime beyond a
reasonable doubt.” United States v. Nevils , 598 F.3d 1158, 1164 (9th Cir. 2010) (internal cit ations, quotation marks, and alterations omitted) (en banc). Nevils applied the well

known standard developed by the Supreme Court in Jackson v. Virginia , 443 U.S. 307 (1979), which vests in the jury a great deal of leeway in reaching its verdict, and pro mises that a jury verdict will be sustained when a rational trier of fact, viewing the evidence in the light most favorable to the government, could find all elements of the crime proved beyond a reasonable doubt. Id. at 318

– 19. Our decision on
sufficien cy of the evidence is made de novo

. United States
v. Green , 592 F.3d 1057, 1065 (9th Cir. 2010).

By contrast, we review for abuse of discretion a district court’s decision about what sanction to impose for the untimely disclosure of Brady and Giglio mater ial. See United States v. Struckman , 611 F.3d 560, 577 (9th Cir. 2010); see also United States v. Sterling , 724 F.3d 482, 512 (4th Cir. 2013).

III

Garrison was charged with conspiracy to distribute OxyContin in violation of 21 U.S.C. § 846 on the grounds that he had distributed OxyContin outside the course of usualU NITED S TATES V

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medical practice and for no legitimate medical purpose in
violation of 21 U.S.C. § 841. “To establish a drug conspiracy, the government must prove (1) an agreement to accomplish an illegal obje ctive; and (2) the intent to commit the underlying offense.” United States v. Duenas , 691 F.3d 1070, 1085 (9th Cir. 2012) (internal citations and quotation marks omitted). Further, to demonstrate the underlying violation of § 841 the government must pro v e three
elements:

(1) that the practitioner distributed controlled substances, (2) that the distribution of those
controlled substances was outside the usual course of professional practice and without a legitimate medical purpose, and (3) that the practit ioner acted with intent to distribute the drugs and with intent to distribute them outside the course of professional practice

.

United States v. Feingold , 454 F.3d 1001, 1008 (9th Cir. 2006). Here, Garrison is not challenging that there was a conspiracy t o run a pill mill out of the Clinic; rather, he contends that there was inadequate evidence at trial to demonstrate that he was aware of the conspiracy or knowingly participated in the conspiracy.

We do not consider this to be a close case on sufficiency of evidence. As to the underlying violation, there was expert testimony that Garrison acted outside the scope of usual medical practice and that he participated in distributing OxyContin in an alarmingly high volume and strength for no legitimate medical purpose. Further, Garrison pre

- signed prescriptions, filled out pre

- signed prescriptions, and wrote OxyContin prescriptions for people neither he nor anyone
else at the clinic had ever examined. He also lied to an14 U NITED S TATES V

. G ARRISON

investigator about his standard practice s. Inconsistencies or lying can lead a jury to infer intent. United States v. Haro

Portillo , 531 F.2d 962, 963 (9th Cir. 1976). This evidence was sufficient to allow a reasonable jury to draw the inference that Garrison was prescribing OxyContin with th e intent to do so for no legitimate medical purpose. See Feingold , 454 F.3d at 1007.

Even though there was no direct evidence that Garrison had entered into an agreement to participate in a drug conspiracy, it is well

- established that “a jury may infer th e existence of an agreement from circumstantial evidence,
such as the defendant’s conduct.” United States v. Reed

, 575 F.3d 900, 924 (9th Cir. 2009). There is no dispute here that there was a conspiracy to improperly distribute OxyContin. “[O]nce a cons piracy is established only a slight connection to the conspiracy is necessary to support a conviction,” meaning “that a defendant need not have known all the conspirators, participated in the conspiracy from its beginning, participated in all its enterpris es, or known all its
details.” United States v. Herrera

- Gonzalez , 263 F. 3d 1092, 1095 (9th Cir. 2001).

Here, Garrison had much more than a slight connection with the conspiracy. He was a major actor in it. He filled out prescriptions for OxyContin that had been pre

- signed by other medical professionals

— often repeating similar diagnoses to support those prescriptions

— and he pre

- signed his own prescription pad, apparently so others could draw prescriptions from it. Coordination like this is “strong
circum stantial proof of agreement” in a conspiracy case.
Reed , 575 F.3d at 924 (internal citation and quotations omitted). Garrison need not have been aware of or participated in the full scope of the scheme

— so long as he had agreed to further a portion of its illicit operations byU NITED S TATES V

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colluding in writing fraudulent prescriptions, he could be
convicted. See Herrera

- Gonzalez , 263 F.3d at 1095. There was sufficient evidence to lead a reasonable jury to conclude that Garrison had agreed to further the scheme run ou t of the Clinic to illicitly distribute OxyContin

.

IV

Garrison next contends that because charges were dismissed against Yoon, Lim, and Nguyen, charges should also have been dismissed against him. He further contends that because the government repeatedly failed to timely disclose evidence revealing weaknesses in its case, there is “little doubt” that, if that evidence been timely disclosed, Garrison would have been acquitted. Garrison also argues
that Yoon’s and Lim’s sudden absence from the trial prejud iced him and implied his guilt. We disagree on all these points.

District courts have discretion in shaping the remedies
for Brady and Giglio violations. See Struckman , 611 F.3d at 577. Remedies for such violations, however, “should be tailored to the injury suffered from the constitutional violation and should not unnecessarily infringe on competing interests.” Id. (quoting United States v.
Morrison , 449 U.S. 361, 36 4 (1981)). Because dismissing an indictment is a “drastic step,” it is “disfavored.” Id. (internal citations omitted). But, where a defendant was prejudiced by the late disclosure and there was flagrant prosecutorial misconduct, dismissal with prejudice may be an appropriate remedy. Id.

At the outset, none of the issues regarding Cho were
relevant to Garrison

— Garrison was not a party to the joint defense agreement and Cho did not testify at Garrison’s trial. Indeed, during the hearing on Garrison’s mot ion for acquittal16 U NITED S TATES V

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and a new trial, his counsel said that the issues regarding Cho “really had nothing to do with Mr. Garrison.” In this way, Yoon and Lim were differently situated from Garrison. Nguyen was also differently situated because, unlike
Garris on but like Yoon and Lim, he was a pharmacist, not an
insider at the Clinic. It was not inconsistent for the district court to dismiss the charges against Yoon, Lim, and Nguyen, while leaving the cha rges against Garrison in place.

There is no dispute here that the government failed to comply with the requirements of Brady and Giglio when it disclosed evidence late regarding Santiago and Shishalovsky falsifying records for Harris, and failed to timely disclose the side deal with Shishalovsky. All of the la te disclosed evidence, however, was given to the jury. And the district court gave a jury instruction telling the jury that the government had disclosed evidence late and that the jury
could draw adverse inferences from that late disclosure.
From the ins truction it is clear that the jury was empowered to exonerate Garrison because of the government’s misconduct, if it chose to do so. But the jury instead found Garrison guilty. In light of the extensive evidence against Garrison, we cannot conclude that any prejudice stemmed
from the late disclosure. See United States v. Howell

, 231 F.3d 615, 627 (9th Cir. 2000) (finding no prejudice where the defendant was able to effectively cross

- examine witnesses about the evidence the prosecutor disclosed only
durin g trial and there was significant other evidence of the
defendant’ s guilt).

Finally, Yoon’s and Lim’s sudden absences from trial and the dismissal of charges against Nguyen, were not prejudicial to Garrison. In instances where defendants depart from a mul ti

- defendant trial late in the trial, we have stated that “the best course may be simply to tell the jury thatU NITED S TATES V

. G ARRISON 17

the defendant is no longer part of the case.” United States v.
Bussell , 414 F.3d 1048, 1053 (9th Cir. 2005). This is exactly
what was done here . The district court also instructed the jury not to speculate as to the reason for Yoon’s and Lim’s absences and the dismissal of charges against Nguyen, and specifically highlighted that the absences and the dismissal of charges in no way weighed toward a finding of guilt as to the remaining codefendants. There is an “almost invariable assumption of the law that jurors follow their instructions,” Richardson v. Marsh , 481 U.S. 200, 206 (1987), and
Garrison has offered no reason to de part from this

assump tion here.

We conclude that there was sufficient evidence to sustain
Garrison’s conviction. We also conclude that there is no
error here in the remedies the trial court crafted for the government’s late disclosures or in the jury instructions the court ga ve regarding the abrupt departure of Yoon and Lim, and the dismissal of some charges against Nguyen.

AFFIRMED.