Appeals from the United States District Court for the Middle
District of Florida, No. 8:14-cr-00521-JDW-AEP-1
JILL PRYOR and JULIE CARNES, Circuit Judges, and ANTOON,
Carnes, Circuit Judge:
a jury trial, Defendants Dr. Edward Feldman and his wife Kim
Feldman appeal their convictions for conspiring to distribute
controlled substances without a legitimate medical purpose,
conspiring to commit money laundering, and three counts of
illegal monetary transactions. Dr. Feldman was also convicted
of three counts of distributing controlled substances,
without a legitimate medical purpose, to three individuals
resulting in their deaths. Both Defendants raise various
challenges to their convictions on appeal. Dr. Feldman also
challenges his 300-month sentence, which incorporated a
20-year mandatory-minimum penalty pursuant to 21 U.S.C.
§ 841(b)(1)(C). After careful review of the parties'
briefs and with the benefit of oral argument, we affirm both
Defendants' convictions, but vacate Dr. Feldman's
case involves the operation of a pain-management clinic in
Florida: Feldman Orthopedic and Wellness Center. The clinic
was operated by Dr. Feldman, a physician, along with his
wife, who served as the clinic's office manager and
handled all of the clinic's money. The clinic did not
accept insurance. To obtain an office visit, patients paid
$300 in cash or credit for their first visit and $150 for
each follow-up visit. Patients were provided a discount for
referring new patients to the clinic. Office visits with Dr.
Feldman were typically brief, as he usually performed cursory
examinations-or sometimes no examination at all.
Feldman was the only physician at the clinic's first
location on 38th Avenue, where he saw approximately 40 to 100
patients per day. According to one former employee, the
clinic's patients came from out of state and often
appeared "stoned" and "drunk." One of the
clinic's former patients, Mike Shaw, testified that he
came to the clinic because Dr. Feldman was a
"writer," meaning that he would prescribe any
medication suggested by the patient. The clinic sometimes
received phone calls from concerned family members of
patients suffering from addiction, yet Dr. Feldman did not
treat those patients any differently.
2010, the clinic moved to 66th Street, where Dr. Feldman
began seeing 75 to 150 patients per day. Due to heavy law
enforcement presence at this location, the Feldmans
instructed their staff to stop accepting patients from out of
state. They also told their staff to place notes in the
patient files if they suspected that someone was an
undercover law enforcement officer. If a patient was flagged
as an undercover officer, Dr. Feldman conducted a more
extensive physical and did not prescribe those patients any
controlled substances. Based on his belief that sunglasses
and hats could conceal recording devices, Dr. Feldman banned
these items at the clinic's third and final location on
effort to tighten protocol, the Feldmans also instructed
staff to discharge patients whose urine tested positive for
cocaine or other serious drugs. In addition, the clinic began
utilizing the Prescription Drug Monitoring Database- a
database that shows the prescriptions a patient has
previously obtained and serves as a tool for determining
whether patients are doctor shopping. Notwithstanding the
above gestures, Mrs. Feldman ultimately told staff to stop
conducting urinalysis screenings because too many patients
were being discharged based on those results. Moreover, the
Feldmans decided that no patient would be discharged until
Dr. Feldman had himself reviewed that patient.
January 2011, a second doctor, Dr. Nancy Bruemmer joined the
clinic. Dr. Bruemmer often recommended lowering patients'
dosage of medications or discharging them altogether.
Whenever Dr. Bruemmer made these recommendations, however,
Mrs. Feldman made sure that Dr. Feldman saw these patients
before they were discharged.
early 2011, law enforcement officers began investigating Dr.
Feldman's clinic. As part of the investigation, several
undercover officers posed as patients at the clinic. Dr.
Kevin Chaitoff, a physician who specializes in pain
management and anesthesia, reviewed the transcripts from the
undercover officers' visits to the clinic and determined
that there were several problems with the way Dr. Feldman
handled each visit. Specifically, Dr. Chaitoff determined
that Dr. Feldman obtained inadequate patient histories,
conducted inadequate physical examinations, and prescribed
controlled substances without documented justification.
August 2012, law enforcement officers executed a search
warrant at the clinic and seized 3, 200 patient files. At the
request of Brian Zdrojewski, an agent with the Drug
Enforcement Administration, Dr. Chaitoff randomly selected 30
patient files to review in order to determine whether Dr.
Feldman was operating within the usual course of professional
practice with respect to each patient. Dr. Chaitoff concluded
that none of the patients in the files he reviewed had been
prescribed controlled substances for a legitimate medical
purpose. Dr. Chaitoff was later asked to review an additional
18 patient files and he reached the same conclusion as to
those files. The investigation revealed at least three
patients of Dr. Feldman's who had died while under his
care: Joey Mayes, Shannon Wren, and Ricky Gonzalez. Dr.
Chaitoff reviewed the files of these patients and determined
that Dr. Feldman's treatment of them was not within the
usual course of professional practice.
investigation also revealed that between 2010 and 2014, the
Feldmans deposited approximately $6, 787, 103.99 into 37 bank
accounts-the majority of which came from cash deposits that
were less than $10, 000. John Barna, a retired detective with
the Pinellas County Sheriff's Office, determined that the
Feldmans purchased their home on Trilby Avenue, in part, with
$190, 000 from a savings account in Dr. Feldman's name at
JPMorgan Chase Bank. Records showed that of that $190, 000,
$150, 000 was transferred from the clinic's bank account
in $50, 000 increments. That transfer is the subject of Count
6. At issue in Count 7, is a $150, 000 wire transfer from
First Bank Creve Coeur Mark Lewis P.A. Trust Account that Dr.
Feldman used to fund the clinic location on Park Boulevard.
Finally, the subject of Count 8 is a wire transfer in the
amount of $187, 689.50 from a Merrill Lynch account in Dr.
Feldman's name to one in Mrs. Feldman's name.
federal grand jury subsequently issued an indictment charging
the Feldmans with: (1) conspiring to distribute and dispense
controlled substances- primarily oxycodone and methadone,
which are Schedule II controlled substances, and alprazolam
and diazepam, which are Schedule IV controlled substances-not
for a legitimate medical purpose, in violation of 21 U.S.C.
§§ 841(b)(1)(C), (b)(2) and 846 (Count 1); (2)
conspiring to commit money laundering, in violation of 18
U.S.C. § 1956(h) (Count 5); and (3) engaging in monetary
transactions with criminal derived property exceeding the
value of $10, 000, in violation of 18 U.S.C. § 1957
(Counts 6 through 8). Dr. Feldman was also charged with three
substantive counts of distribution and dispensation of
Schedule II and Schedule IV controlled substances, not for a
legitimate medical purpose, resulting in the deaths of Joey
Mayes (Count 2), Ricky Gonzalez (Count 3), and Shannon Wren
(Count 4), in violation of § 841(a)(1), (b)(1)(C)
(Counts 2 through 4).
Feldmans pled not guilty and proceeded to trial. The first
trial ended in a mistrial. At the second trial, the
Government presented testimony from the case agents,
undercover officers, former patients and employees, the
medical examiners, and Dr. Chaitoff. At the close of the
Government's case-in-chief, the Feldmans moved for
judgment of acquittal. Dr. Feldman argued that the Government
failed to meet its burden of proof as to each count. The
district court denied the Feldmans' motions for judgment
Feldman called several witnesses on his behalf. Dr.
Simopoulos, a pain management physician, testified that,
based on his review of the patient files, he believed that
Dr. Feldman's prescribing practices were within the usual
course of professional practice. Dr. Vernard Adams, a
forensic pathologist and former medical examiner, opined
about the cause of death for each of the three victims. Dr.
Feldman also testified. He denied that he had an agreement
with Mrs. Feldman or anyone else at the clinic to engage in
illegal activity. After the defense rested, the district
court denied the parties' renewed motions for judgment of
jury found the Feldmans guilty as charged. The district court
sentenced Dr. Feldman and Mrs. Feldman to imprisonment terms
of 300 months and 48 months, respectively. Dr. Feldman's
300-month sentence incorporated the 20-year mandatory minimum
sentence under 21 U.S.C. § 841(b)(1)(C), based on his
convictions for Counts 2 through 4. This appeal followed.
Motion to Sever
Feldman argues that the district court abused its discretion
by denying her motion to sever her trial from Dr.
review the district court's denial of a motion for
severance for an abuse of discretion. United States v.
Cobb, 185 F.3d 1193, 1196 (11th Cir. 1999). If it
appears that a joint trial will prejudice a defendant or the
Government, the district court may sever the defendants'
trials. Fed. R. Crim. P. 14(a). "In assessing the merits
of a severance motion, the district court must balance the
possibility of prejudice to the defendant against the public
interest in judicial efficiency and economy." United
States v. Eyster, 948 F.2d 1196, 1213 (11th Cir. 1991).
To obtain reversal of a district court's denial of a
severance motion, a defendant must make a showing of
"compelling prejudice" against which the district
court offered no protection. United States v.
Walser, 3 F.3d 380, 385 (11th Cir. 1993). "A
defendant can show compelling prejudice by demonstrating that
the jury was unable to sift through the evidence and make an
individualized determination as to each defendant."
United States v. Ramirez, 426 F.3d 1344, 1352 (11th
Cir. 2005) (quotation marks omitted).
to trial, Mrs. Feldman moved to sever Counts 2 through
4-which charged Dr. Feldman with distributing and dispensing
controlled substances, without a legitimate medical purpose,
resulting in death. She argued that she would be
substantially prejudiced by a joint trial that included those
counts because they applied to Dr. Feldman only. The district
court denied the motion.
Feldman has not met her burden of showing that the district
court abused its discretion by denying her motion for
severance. The Feldmans were indicted together and charged
with being part of two conspiracies: (1) the distribution of
controlled substances without a legitimate medical purpose;
and (2) money laundering. "It is well settled that
defendants who are indicted together are usually tried
together." United States v. Browne, 505 F.3d
1229, 1268 (11th Cir. 2007); see also United States v.
Knowles, 66 F.3d 1146, 1158 (11th Cir. 1995) ("This
court is reluctant to reverse a district court's denial
of severance, particularly in conspiracy cases, as generally
'persons who are charged together should also be tried
Feldman asserts that she was prejudiced by the admission of
evidence relating to Counts 2 through 4 because those counts
applied only to Dr. Feldman. We have concluded, however, that
"[a] defendant does not suffer compelling prejudice,
sufficient to mandate a severance, simply because much of the
evidence at trial is applicable only to co-defendants."
United States v. Schlei, 122 F.3d 944, 984 (11th
Cir. 1997) (quotation marks omitted). Moreover, Mrs. Feldman
has not met her burden of demonstrating that the jury was not
able to make an individualized determination of guilt as to
the evidence pertaining to her. See United States v.
Francis, 131 F.3d 1452, 1459 (11th Cir. 1997)
(explaining that, in order to establish prejudice, a
defendant must show "that the jury was unable to make an
individualized guilt determination for each defendant").
even if there were any potential prejudice, we have
determined that prejudice can be avoided where the district
court instructs the jury that it should consider the evidence
against each defendant separately. See Schlei, 122
F.3d at 984. Here, the district court instructed the jury
[A] separate crime or offense is charged against each
defendant in each count of the indictment. Each charge and
the evidence pertaining to it should be considered
separately. Also, the case of each defendant should be
considered separately and individually. The fact that you may
find one or any . . . of the defendants guilty or not guilty
of any of the offenses charged should not affect your verdict
as to any other offense or any other defendant.
I caution you, members of the jury, that you are here to
determine from the evidence in this case whether each
defendant is guilty or not guilty. Each defendant is on trial
only for the specific offense alleged in each count of the
presume that the district court's cautionary instruction
prevented any possible prejudice. See Francis, 131
F.3d at 1459 (explaining that "cautionary instructions
to the jury to consider the evidence separately are presumed
to guard adequately against prejudice." (quotation marks
omitted)). Because Mrs. Feldman has not provided any evidence
showing that the jury was not able to make an individualized
determination of guilt, she has failed to demonstrate that
she suffered compelling prejudice or received an unfair
trial. See Browne, 505 F.3d at 1268
("[Defendant] must discharge the 'heavy burden'
of demonstrating 'compelling prejudice' from the
joinder." (quotation marks omitted)). Accordingly, the
district court did not abuse its discretion by denying her
motion for severance.
Feldman's next claim of error is that the district court
abused its discretion by denying her motion to exclude Dr.
Chaitoff's testimony and by permitting Dr. Chaitoff to
extrapolate an opinion as to all 3, 200 patient files, based
on his review of a small percentage of those files.
review for abuse of discretion the district court's
determinations regarding the admissibility and reliability of
expert testimony. United States v. Frazier, 387 F.3d
1244, 1258 (11th Cir. 2004). Federal Rule of Evidence 702
provides that a witness who is qualified as an expert may
provide an opinion if:
(a) the expert's scientific, technical, or other
specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c)the testimony is the product of reliable principles and
methods; and (d) the expert has reliably applied the
principles and methods to the facts of the case.
Fed. R. Evid. 702. The district court has wide discretion in
deciding how to determine reliability. United States v.
Abreu, 406 F.3d 1304, 1307 (11th Cir. 2005).
to trial, Dr. Feldman filed a motion in limine to exclude, or
limit, the testimony of the Government's proposed expert,
Dr. Chaitoff. Following a Daubert hearing, a
magistrate judge determined that Dr. Feldman's objection
to Dr. Chaitoff's testimony under Rule 702 was without
merit, "at least to the extent that the opinion does not
extrapolate from the reviewed files to a broader conclusion
involving files not reviewed." The magistrate judge
noted that Dr. Chaitoff's testimony at the hearing
resolved any potential issue pertaining to extrapolation, as
he testified that the review of one patient's file would
be insufficient to draw conclusions regarding files that were
Feldman now challenges for the first time on appeal an
isolated statement made by Dr. Chaitoff at trial.
Specifically, while discussing his selection and review of
the first 30 patient files, Dr. Chaitoff stated that,
"the methodology was random and the conclusions applied
to all the patients. So whether I reviewed 30 or I reviewed
3, 200, I suspect my conclusions would have been
identical." As noted, Mrs. Feldman did not object to
Federal Rules of Evidence provide that a defendant need not
object to preserve a claim of error on appeal if the district
court makes a definitive ruling on a pretrial motion, such as
a motion in limine. See Fed. R. Evid. 103(b)
("Once the court rules definitively on the record-either
before or at trial-a party need not renew an objection or
offer of proof to preserve a claim of error for
appeal."). That is not what happened here, however. The
magistrate judge did not expressly rule on the merits of the
extrapolation issue, stating only that the objection to Dr.
Chaitoff's testimony pursuant to Rule 702 was without
merit "at least to the extent that the opinion does not
extrapolate from the reviewed files to a broader conclusion
involving files not reviewed." Moreover, it is clear
from the order that the magistrate judge believed that any
potential extrapolation by Dr. Chaitoff was a non-issue, as
he noted that Dr. Chaitoff had specifically testified that
his review of one patient's file would be insufficient to
draw conclusions as to other patient files that had not been
the magistrate judge did not make a definitive ruling on the
extrapolation issue, Mrs. Feldman was required to object to
Dr. Chaitoff's statement to avoid plain error review.
See United States v. Wilson, 788 F.3d 1298, 1313
(11th Cir. 2015) (reviewing defendant's argument for
plain error where the district court's pretrial ruling
was not definitive); Cf. United States v. Harris,
886 F.3d 1120, 1127 n.2 (11th Cir. 2018) (concluding that
defendant's argument on appeal was not subject to plain
error review-despite the defendant's failure to object at
trial-because the district court definitively ruled on the
motion in limine). She did not object, so we review her
argument for plain error.
Feldman cannot prevail under plain error review. Even if she
could show an error that was plain, she cannot demonstrate
that her substantial rights were violated. Indeed, she cannot
show that she was prejudiced-much less substantially
prejudiced-by one stray comment made by Dr. Chaitoff
concerning his suspicion as to the remaining 3, 000 patient
files not reviewed. The comment was made during approximately
three days' worth of testimony from Dr. Chaitoff. During
that testimony, Dr. Chaitoff focused entirely on the 48
patient files that he reviewed and his opinion as to whether
Dr. Feldman's treatment of the specific patients in those
files was within the ordinary course of professional
practice. Accordingly, Mrs. Feldman is not entitled to relief
on this claim.
Feldman asserts that the district court's order declaring
a mistrial during the first trial was not supported by
manifest necessity, and thus the court should have granted
her motion to dismiss the indictment on double jeopardy
grounds. She also argues that the district court failed to
comply with Federal Rule of Criminal Procedure 26.3, which
requires the court to give the parties an opportunity to
object or consent to an order declaring mistrial.
review the district court's declaration of a mistrial on
grounds of manifest necessity to determine whether the court
exercised sound discretion in deciding that such a necessity
existed. United States v. Davis, 708 F.3d 1216, 1221
(11th Cir. 2013). And "if the court's decision to
declare a mistrial was not based on manifest necessity, it
was an abuse of discretion not to dismiss the indictment on
double jeopardy grounds." See id.
Double Jeopardy Clause of the Fifth Amendment safeguards a
criminal defendant from being subjected to multiple
prosecutions for the same offense. U.S. Const. amend. V.
"Ordinarily, when 'a defendant successfully seeks to
avoid his trial prior to its conclusion by a motion for
mistrial, the Double Jeopardy Clause is not offended by a
second prosecution.'" United States v.
Shelley, 405 F.3d 1195, 1200 (11th Cir. 2005) (quotation
courts are permitted to declare a mistrial and discharge a
jury only where, 'taking all the circumstances into
consideration, there is a manifest necessity for the act, or
the ends of public justice would otherwise be
defeated.'" United States v. Therve, 764
F.3d 1293, 1298 (11th Cir. 2014) (quotation marks omitted).
"Our task is to decide whether the district court
exercised 'sound discretion' in declaring a mistrial,
and in order to determine that 'we review the entire
record in the case without limiting ourselves to the actual
findings of the trial court.'" Davis, 708
F.3d at 1221 (quotation marks omitted and citation omitted).
But "the requirement that manifest necessity be
demonstrated operates only when the trial court has
declared a mistrial without the consent of the
defendant." United States v. Puleo, 817 F.2d
702, 705 (11th Cir. 1987). If the defendant consents to a
mistrial, the Double Jeopardy Clause will not bar her
facts surrounding the declaration of a mistrial during the
first trial are as follows. During the first trial, Mrs.
Feldman's attorney asked Dr. Feldman on cross-examination
if he had ever been convicted of a felony. Dr. Feldman stated
that he had been convicted of one felony. Thereafter, the
prosecutor asked Dr. Feldman whether the felony he was
convicted of related to his practice as a doctor. Dr. Feldman
objected and moved for a mistrial, arguing that a curative
instruction was not going to cure the prejudice. Indeed, the
defendants were united in their position that a mistrial was
necessary. Mrs. Feldman indicated that she had "the same
position as this is a conspiracy case with regard to that I
agree that, I agree that I don't believe a curative
instruction is going to-." Following subsequent
discussion, the district court recessed for the day. The next
morning, the district court heard argument from the
Government and Dr. Feldman as to whether the prejudicial
effect of the question could be remedied by a curative
instruction. Ultimately, the district court decided that the
defendants were correct in asserting that a mistrial was
necessary because the court concluded that it was not
possible to cure this issue. The court thus declared a
mistrial. During this lengthy deliberative process by the
court, Mrs. Feldman never indicated any change in her
original position that a mistrial was necessary nor did she
object when the district court ultimately acquiesced to the
defense position that a mistrial was required.
almost a month later-when the jury was long gone-she filed a
motion arguing that the court was wrong to conclude that
manifest necessity required a mistrial. She further argued
that she was not provided the opportunity to consent or
object to the order declaring a mistrial. The district court
denied the motion.
Feldman argues that the Double Jeopardy Clause barred her
retrial because a mistrial was not manifestly necessary. But
we need not address manifest necessity. Because Mrs. Feldman
acquiesced in the court's decision to declare a mistrial,
she cannot now be credibly heard to argue that the
court's decision was a mistake.
Feldman argues that she could not have agreed with the
district court's decision to declare a mistrial because
the district court failed to provide proper notice before
declaring a mistrial. Federal Rule of Criminal Procedure 26.3
provides that prior to ordering a mistrial, "the court
must give each defendant and the government an opportunity to
comment on the propriety of the order, to state whether that
party consents or objects, and to suggest alternatives."
Fed. R. Crim. P. 26.3. "[C]ompliance with Rule 26.3 is
only one factor to be considered in determining whether a
trial judge exercised sound discretion in declaring a
mistrial." Davis, 708 F.3d at 1224 (citing
United States v. Berroa, 374 F.3d 1053, 1058 (11th
conclude that Mrs. Feldman gave implied consent to the
mistrial. The record in the present case clearly shows that
Mrs. Feldman had numerous opportunities to comment or object
to the potential declaration of a mistrial, and she never
gave even a hint that she objected during the lengthy
proceedings concerning this matter. Indeed, after Dr. Feldman
moved for a mistrial, Mrs. Feldman agreed that the prejudice
could not be cured by a curative instruction, and then noted
that this was a conspiracy case. When the court reconvened
after the overnight recess, Mrs. Feldman raised no objection
to the court declaring a mistrial, nor did she object or
argue that the court should allow the ongoing trial to
proceed against her alone. Even as the jury was departing,
she said nothing to the court indicating that a mistrial
should not have been declared as to her. See Puleo,
817 F.2d at 705 (concluding that defendant consented to
mistrial when "even as the jury was departing . . .
[counsel] said nothing regarding the mistrial").
deciding a Double Jeopardy challenge to a second trial, we
have recently reconfirmed Puleo's teaching that
"a defendant's consent to a mistrial need not be
express but may always be implied from the totality of
circumstances." United States v. Isaac Feldman,
931 F.3d 1245, 1256-57 (11th Cir. 2019) (quotation marks
omitted and alterations accepted). As with the present case,
we noted in Isaac Feldman that, albeit aware that
the district court was in the process of declaring a
mistrial, the defendant "never voiced any objection to
the jury's dismissal . . . . The totality of these
circumstances compels the conclusion that [the defendant]
impliedly consented to the dismissal of the original jury . .
. ." Id. at 1257.
is here. Mrs. Feldman implicitly consented to the order
declaring a mistrial. We therefore conclude that she is
entitled to no relief on her claim challenging the district
court's denial of her motion to dismiss the indictment on
double jeopardy grounds.