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USA v. Feldman

United States Court of Appeals, Eleventh Circuit

August 30, 2019

USA, Plaintiff - Appellee,

          Appeals from the United States District Court for the Middle District of Florida, No. 8:14-cr-00521-JDW-AEP-1

          Before JILL PRYOR and JULIE CARNES, Circuit Judges, and ANTOON, [*] District Judge.

          Julie Carnes, Circuit Judge:

         Following 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 sentence.


         I. Facts

         A. The Clinic

         This 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.

         Dr. 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.

         In July 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 Park Boulevard.

         In an 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.

         In 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.

         In 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.

         In 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.

         B. Money Laundering

         The 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.

         II. Procedural History

         A 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).

         The 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 of acquittal.

         Dr. 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 acquittal.

         The 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.[1] This appeal followed.


         I. Motion to Sever

         Mrs. Feldman argues that the district court abused its discretion by denying her motion to sever her trial from Dr. Feldman's.

         We 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).

         Prior 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.

         Mrs. 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 together.'").

         Mrs. 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").

         Nevertheless, 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 that:

[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 indictment.

         We 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.

         II. Expert Testimony

         Mrs. 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.

         We 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).

         Prior 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[2] 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 not reviewed.

         Mrs. 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 this statement.

         The 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 reviewed.

         Because 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.[3]

         Mrs. 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.

         III. Double Jeopardy

         Mrs. 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.

         We 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.

         The 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 marks omitted).

         "[D]istrict 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 retrial. Id.

         The 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.

         Instead, 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.

         Mrs. 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.

         Mrs. 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 Cir. 2004)).

         We 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").

         In 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.

         So it 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.

         IV. ...

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