United States of America v.  Ricardo U. Alerre

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 03-4207 
RICARDO U. ALERRE,
Defendant-Appellant. 
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 03-4212 
DEBORAH BORDEAUX,
Defendant-Appellant. 
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 04-4161 
MICHAEL D. JACKSON,
Defendant-Appellant. 
Appeals from the United States District Court
for the District of South Carolina, at Florence.
C. Weston Houck, Senior District Judge.
(CR-02-673)
Argued: September 20, 2005
Decided: December 1, 2005
Before MICHAEL, MOTZ, and KING, Circuit Judges.

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Affirmed in part, vacated in part, and remanded by published opinion.
Judge King wrote the opinion, in which Judge Michael and Judge
Motz joined.
COUNSEL
ARGUED: Eli D. Stutsman, Portland, Oregon, for Appellants.
Thomas Ernest Booth, UNITED STATES DEPARTMENT OF JUS-
TICE, Washington, D.C., for Appellee. ON BRIEF: G. Wells Dick-
son, Jr., Charleston, South Carolina, for Appellant Deborah
Bordeaux; Lionel S. Lofton, Charleston, South Carolina, for Appel-
lant Ricardo U. Alerre; David Bruce Betts, Columbia, South Carolina,
for Appellant Michael D. Jackson. Jonathan S. Gasser, Acting United
States Attorney, William E. Day, II, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South
Carolina, for Appellee.
OPINION
KING, Circuit Judge:
Appellants Ricardo U. Alerre, Deborah S. Bordeaux, and Michael
D. Jackson (the "defendants") challenge the various convictions and
sentences imposed on them in the District of South Carolina. The
defendants — medical doctors — seek a new trial on drug distribu-
tion, drug conspiracy, and money-laundering conspiracy charges lev-
ied against them by the grand jury. The multiple charges in their
indictment arise from an alleged prescription-selling operation and a
health-care-fraud scheme carried out during a four-year period in the
Myrtle Beach area of South Carolina. The defendants contend on
appeal that, in their 2003 trial, their lawyers were constitutionally
ineffective and the prosecutors engaged in prejudicial misconduct.
They also maintain that the trial evidence was insufficient to support
their money-laundering conspiracy convictions. Finally, the defen-
dants challenge their sentences on the basis of the Supreme Court’s
recent decision in United States v. Booker, and the prosecutors have
confessed error on that point. As explained below, we affirm the
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defendants’ convictions, vacate their sentences, and remand for resen-
tencing.
I.
The Government prosecuted the defendants — who were medical
doctors licensed in South Carolina and registered with the Drug
Enforcement Administration (the "DEA") — for their involvement
with the Comprehensive Care and Pain Management Center
("CCPMC"), in Myrtle Beach. During the relevant period (1997 to
2001), CCPMC was owned and operated by Dr. David Woodward.
On August 29, 2002, the grand jury charged the defendants, along
with Woodward and four others, in a ninety-three count indictment.
J.A. 83-110.1 The defendants were each charged with conspiracy to
distribute controlled substances, in contravention of 21 U.S.C. § 846
(the "drug conspiracy charge") (Count 1); conspiracy to commit
money laundering, in violation of 18 U.S.C. § 1956(h) (the "launder-
ing conspiracy charge") (Count 93); and multiple counts of distribut-
ing controlled substances, in violation of 21 U.S.C. § 841(a)(1) (the
"distribution charges"). More specifically, of the forty-two distribu-
tion charges in the indictment, Dr. Jackson was charged with five
counts of distributing OxyContin, Oxy IR, and Percocet (Counts 9
through 13); Dr. Bordeaux with four counts of distributing OxyContin
and Oxy IR (Counts 30 through 33); and Dr. Alerre with eight counts
of distributing OxyContin (Counts 34 through 41).2
A.
The defendants’ jury trial was conducted in Florence, South Caro-
lina, from January 27 to February 10, 2003. The jury heard the testi-
1Our citations to "J.A. ___" refer to the contents of the Joint Appendix
filed by the parties in these appeals.
2OxyContin, Oxy IR, and Percocet are brand names for drugs contain-
ing oxycodone, a Schedule II controlled substance. See 21 C.F.R.
§ 1308.12(b)(1)(15). Schedule II controlled substances have three defin-
ing characteristics: (A) "a high potential for abuse"; (B) "a currently
accepted medical use in treatment . . . or a currently accepted medical use
with severe restrictions"; and (C) a possibility that abuse "may lead to
severe psychological or physical dependence." 21 U.S.C. § 812(b)(2).
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mony of fifty-four witnesses, thirty of whom were called by the
Government. The most important prosecution witness was Dr. Wood-
ward, who had earlier pleaded guilty under a plea agreement and was
cooperating with the United States Attorney.
According to Dr. Woodward’s testimony, CCPMC was simply a
front for an illegal prescription-selling operation and a health-care-
fraud scheme. Woodward explained how he had developed a plan to
conceal CCPMC’s illegal activities from the law enforcement and
medical authorities. In carrying out his activities, he had directed
CCPMC physicians to conduct superficial physical examinations of
CCPMC patients that served no medical purpose and were intended
only to make the issuance of prescriptions look like the practice of
medicine. Tr. 790.3 In so doing, Dr. Woodward developed a medical
record template with boilerplate diagnoses that could be loaded into
patients’ charts and used to deceive insurance companies and investi-
gators. Tr. 792. Patients were given various diagnostic tests to justify
insurance billings, and CCPMC physicians systematically requested
outside radiologists to "over read" magnetic resonance imaging pic-
tures in order to justify specific prescriptions. Tr. 798-99. If a patient
was insured, the CCPMC doctors would order additional unnecessary
tests and scans. Tr. 799.4 The revenue from such tests and scans con-
stituted about half of CCPMC’s income, with the other half being
derived from the superficial patient examinations and the issuance of
illegitimate prescriptions. Id.
In his testimony, Dr. Woodward acknowledged that fifteen to
twenty percent of CCPMC’s patients had legitimate medical prob-
lems, but asserted that all patients were "treated the same" — i.e.,
"[t]hey all received the narcotic medication" — without regard to
3Because the Joint Appendix does not contain portions of the trial
record relied upon by the Government, we refer to the pertinent parts of
the trial transcript, omitted from the Joint Appendix, as "Tr. ____."
4The indictment did not charge the defendants with any substantive
offenses related to health care fraud. One of the three unlawful activities
specified in the laundering conspiracy charge, however, included the
submission of false claims to health care benefit programs, in contraven-
tion of 18 U.S.C. § 1347.
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medical necessity. Tr. 887. The testimony of former CCPMC employ-
ees and patients corroborated Woodward’s evidence.
Dr. Woodward hired Dr. Jackson in February 1998, and hired Dr.
Bordeaux two years later, in February 2000. The evidence revealed
that Bordeaux and Jackson, along with other CCPMC physicians,
developed a practice known as "fast tracking," which they used to
expedite the issuance of illegitimate prescriptions for controlled sub-
stances. Tr. 399-400. Under the fast-tracking practice, a CCPMC phy-
sician would enter an examination room where five or six patients
waited, sign prescriptions for each, and promptly exit without asking
any medical questions or performing any medical examinations. Id.
After Drs. Bordeaux and Jackson left CCPMC in the summer of
2000, Dr. Woodward hired Dr. Alerre. According to Woodward, he
needed Alerre to "shadow" him and issue prescriptions because
Woodward’s license to prescribe controlled substances had been sus-
pended by the DEA. Tr. 818. Woodward further testified that Alerre
understood his role before he accepted a position with CCPMC. Id.
When Alerre began his work at CCPMC, he would accompany
Woodward while superficial patient examinations were conducted.
Tr. 819. At the conclusion of such examinations, Alerre would issue
illegitimate prescriptions to the patients. Tr. 820.
Donald Shafer, a former CCPMC patient, testified that, on his first
visit to CCPMC, Drs. Alerre and Woodward took him to an examina-
tion room, searched him to determine if he was wired, and asked if
he was working as an undercover agent. J.A. 581-82. Once satisfied
that Shafer was not working for the authorities, Woodward and Alerre
asked Shafer if he wanted a prescription for OxyContin or a drug cal-
led Lorcet. J.A. 584.
Importantly, Dr. Woodward also testified that he confronted each
defendant and inquired whether they understood the illicit nature of
CCPMC’s activities. The defendants assured Woodward that they
were willing to participate in CCPMC’s overall scheme. Woodward
approached Dr. Jackson, asked if he was "able to do this," and Jack-
son assured him "I got your back." Tr. 792. In answering a similar
inquiry, Dr. Bordeaux replied "if I go along with this and do this, can
I have your father’s pickup truck?" Tr. 815. When Woodward asked
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Dr. Alerre if he was comfortable with "what we were doing," Alerre
paused and responded "[o]h, to hell with it." Tr. 823. Woodward
understood Alerre’s response to confirm that Alerre was "part of our
team"; that is, Alerre was agreeing to join in Woodward’s illicit oper-
ations. Id.
B.
The prosecution’s expert witness, Dr. Arthur Jordan, testified that
the defendants systematically wrote prescriptions that "were not
issued for a legitimate medical purpose." J.A. 819. Based on his
review of eighty-eight randomly selected patient charts, Jordan
opined that the defendants had failed to adhere to generally accepted
medical standards. See J.A. 757, 789-813. Specifically, Jordan testi-
fied that many of the prescriptions lacked appropriate documentation
or had no "follow up" treatment, that the defendants ignored "red
flags" indicative of drug abuse, and that certain prescriptions and dos-
ages were inappropriate. See J.A. 789-813.
Dr. Jordan then testified that the defendants had issued prescrip-
tions that were "totally away from and inconsistent with the dosages
that a prudent physician in the state of South Carolina would give, as
what we call the standard of care." J.A. 815. When the court, sua
sponte, expressed concern that such evidence might be improper, a
defense lawyer stated that he was waiting for Jordan to finish his
answer. J.A. 816. The court then observed there was "no reason to put
something in the record which the jury may [consider] . . . that is not
the standard." Id. The court concluded, in the presence of the jury,
that "[w]hether the doctors are negligen[t] or not, whether they were
guilty of malpractice, is not an issue in this case." Id.
The prosecution presented other evidence that the defendants’ pre-
scription practices constituted "illegitimate medicine," and that their
practices consistently failed to meet the ordinary "standard of care."
Though the defense lawyers did not object to such evidence, the court
expressed its concern that standard-of-care evidence might be irrele-
vant and confusing, in that it appeared to relate to civil negligence
issues and not necessarily to whether the defendants had contravened
the applicable criminal statutes. The prosecutors, as well as the
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defense lawyers, repeatedly assured the court that such evidence was
relevant and appropriate.
After the prosecution rested its case-in-chief, the defendants pre-
sented their own evidence. Dr. Alerre testified personally and called
eight other witnesses to testify. Alerre asserted that he had only pre-
scribed medicine to patients he believed to be in pain, and he denied
having agreed to participate in CCPMC’s illegal activities. Dr. Jack-
son testified that he had always prescribed medicine in good faith, and
he called a corroborating witness. Dr. Bordeaux did not testify, but
called thirteen witnesses of her own.
At the close of trial, the court instructed the jury without objection.
The instructions included the elements of the various offenses
charged, the legal propriety of a physician’s actions concerning pre-
scriptions, and the availability of a good faith defense on the distribu-
tion and drug conspiracy charges. Tr. 2393; J.A. 1297-99. In
particular, the court instructed the jury that it could not convict on the
distribution and drug conspiracy charges if it found only that the
defendants’ practices fell "below that line of what a reasonable physi-
cian would have done." J.A. 1299.5 The instructions were that, in
order to convict on the distribution and drug conspiracy charges, the
jury was obliged to find beyond a reasonable doubt that the defen-
dants were selling drugs, or conspiring to do so, and not practicing
5More specifically, on the standard of care issue, the instructions pro-
vided by the trial court were as follows:
There has been some mention . . . of the standard of care. I’m
not so sure the word[ ] malpractice ha[s] not been used. Those
words relate to civil actions. When you see a doctor, as a patient,
that doctor must treat you in a way so as to meet the standard of
care that physicians of similar training would have given you
under the same or similar circumstances. . . .
That’s not what we’re talking about. We’re not talking about
these physicians acting better or worse than other physicians.
We’re talking about whether or not these physicians prescribed
a controlled substance outside the bounds of their professional
medical practice.
J.A. 1299.
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medicine. Id. By its verdict, the jury found each defendant guilty as
charged, except that Dr. Alerre was found not guilty on one distribu-
tion charge (Count 37) and the Government dismissed a distribution
charge against Dr. Bordeaux (Count 33).
C.
The laundering conspiracy charge alleged that the defendants con-
spired with Dr. Woodward and others "to knowingly and willfully
conduct and attempt to conduct financial transactions affecting inter-
state and foreign commerce with the intent to promote the carrying on
of specific unlawful activities." J.A. 103. It further alleged that in
excess of $5,000,000 was received through CCPMC’s heath-care-
fraud scheme (i.e., ordering unnecessary tests to collect insurance)
and its prescription-selling operation, and that such monies were
deposited into accounts held and controlled by Woodward and his
companies. J.A. 103-04. It alleged that these monies were expended
to continue CCPMC’s health-care-fraud scheme and prescription-
selling operation, and that, "[i]n furtherance of the conspiracy, and to
achieve the objectives thereof," payments were made from the illicitly
obtained funds, held by Woodward and his companies, to the defen-
dants, Woodward, other CCPMC employees, and other institutions.
J.A. 101-06.6 At trial, the parties stipulated that "the checks drawn on
6More specifically, the laundering conspiracy charge, a violation of 18
U.S.C. § 1956(h), alleged in part:
From about June 1997, and continuing until . . . July 2001 . . .
[the defendants and others] did . . . knowingly . . . conspire . . .
to knowingly and willfully conduct and attempt to conduct finan-
cial transactions affecting interstate . . . commerce with the intent
to promote the carrying on of specific unlawful activities, that is:
causing controlled substances to be dispensed outside the usual
course of medical practice and for other than legitimate medical
purposes, in violation of [21 U.S.C. § 841]; to defraud health
care benefits programs by submitting false claims, in violation of
[18 U.S.C. § 1347]; and laundering money with the intent to pro-
mote the carrying on of these unlawful activities, in violation of
[18 U.S.C. § 1956(a)(1)(A)(i)].
J.A. 103. In its paragraphs 3 and 4, the laundering conspiracy charge
identified more than eighty transactions as specific overt acts that were
performed in furtherance thereof. See J.A. 101-06.
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the business accounts of [Woodward and his companies], which are
referred to in [the laundering conspiracy charge], were cashed, and
were financial transactions affecting interstate commerce." J.A. 672-
a to 673. As explained above, Woodward’s testimony was that each
of the defendants had knowingly agreed to participate in CCPMC’s
illegal activities relating to illegitimate prescriptions and health care
fraud.
At the close of the prosecution’s case-in-chief, and again at the
conclusion of the evidence, the defendants each moved under Rule 29
of the Federal Rules of Criminal Procedure for judgment of acquittal
on the laundering conspiracy charge. J.A. 982-84; Tr. 2256-57.7 Their
Rule 29 motions were denied and the jury found each of them guilty
on that charge.
D.
On February 17, 2004, prior to the Supreme Court’s decisions in
Blakely v. Washington, 542 U.S. 296 (2004), and United States v.
Booker, 125 S. Ct. 738 (2005), the defendants’ sentencing hearings
were conducted and their sentences were imposed. On appeal, the
Government concedes that — because the challenged sentences were
premised on drug quantities neither found by the jury nor admitted by
the defendants, and because the sentences were imposed under a man-
datory Sentencing Guidelines regime — the defendants are entitled to
be resentenced. See Booker, 125 S. Ct. 738; United States v. Hughes,
401 F.3d 540, 555-56 (4th Cir. 2005) (concluding error was plain and
warranted reversal where court imposed sentence under mandatory
Guidelines based on judicial factfinding, increasing sentencing range
beyond that which could have been imposed on the basis of facts
found by jury or admitted by defendant).
The defendants have filed timely notices of appeal, and we possess
jurisdiction pursuant to 28 U.S.C. § 1291. Their consolidated appeals
present three issues:
7The defendants moved at trial for judgment of acquittal on all counts,
but on appeal assert only that they were entitled to such an acquittal on
the laundering conspiracy charge.
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• First, whether a civil liability standard was erroneously
injected into the trial by the prosecutors and the defense
lawyers, and, if so, whether the defendants are entitled to
relief from their convictions either because their lawyers
were constitutionally ineffective, or because the prosecu-
tors engaged in prejudicial prosecutorial misconduct;
• Second, whether the evidence was sufficient to support
their convictions on the laundering conspiracy charge;
and
• Third, whether the defendants — as the prosecution con-
cedes — are entitled to resentencing because Booker was
contravened.
As explained below, we reject the defendants’ challenges to their con-
victions, but we vacate their sentences and remand.
II.
A.
First, the defendants contend that they are entitled to a new trial
because their lawyers were constitutionally ineffective and because
the prosecutors engaged in prejudicial prosecutorial misconduct.
These claims derive from their assertion that the lawyers on both
sides of the case erroneously and unconstitutionally misunderstood
and misapplied the pertinent standard for criminal liability.
1.
We may consider an ineffective assistance claim in the first
instance on direct appeal only if it conclusively appears from the
record that counsel was constitutionally ineffective. United States v.
Vinyard, 266 F.3d 230, 333 (4th Cir. 2001); see also United States v.
Russell, 221 F.3d 615, 619 (4th Cir. 2000) ("A defendant . . . may
raise an ineffective assistance claim in the first instance on direct
appeal only where the ineffectiveness ‘conclusively appears’ from the
record."). In order to show such ineffectiveness, a defendant is
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obliged to demonstrate that (1) the performance of his lawyers "was
deficient in that it fell below an objective standard of reasonableness
and outside the wide range of professionally competent assistance,"
and (2) he was actually prejudiced "in that but for counsel’s unprofes-
sional errors, the result of the proceeding would have been different."
Swisher v. True, 325 F.3d 225, 232 (4th Cir. 2003) (internal quotation
marks omitted); accord Strickland v. Washington, 466 U.S. 668, 691
(1984).
When asserting a prosecutorial misconduct claim, a defendant
bears the burden of showing (1) that the prosecutors engaged in
improper conduct, and (2) that such conduct prejudiced the defen-
dant’s substantial rights so as to deny the defendant a fair trial. See
United States v. Mitchell, 1 F.3d 235, 240 (4th Cir. 1993). And we
review for plain error a prosecutorial misconduct claim that was not
raised or presented to the trial court. Fed. R. Crim. P. 52(b); see also
Vinyard, 266 F.3d at 324 (applying plain error review to prosecutorial
misconduct claim first raised on appeal). In reviewing for plain error,
we must affirm unless an appellant can show that (1) an error was
made, (2) it was plain, and (3) it affected the appellant’s substantial
rights. Vinyard, 266 F.3d at 324. Moreover, the correction of plain
error lies within our discretion, which we do not exercise "unless the
error seriously affects the fairness, integrity, or public reputation of
judicial proceedings." Id. at 324-25 (alteration and internal quotation
marks omitted).
2.
a.
In order to resolve the ineffective assistance and prosecutorial mis-
conduct claims raised here, we must first assess the proper relation-
ship between the civil and criminal standards of liability for a
physician who has prescribed drugs. The distribution charges against
the defendants involve violations of 21 U.S.C. § 841(a)(1), while the
drug conspiracy charge involves a violation of 21 U.S.C. § 846, hav-
ing as its object the contravention of § 841(a)(1).8 In relevant part,
8Section 846 of Title 21 provides, in pertinent part, that "[a]ny person
who . . . conspires to commit any offense defined in this subchapter shall
be subject to the same penalties as those prescribed for the offense, the
commission of which was the object of the . . . conspiracy."
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§ 841(a)(1) provides that "[e]xcept as authorized by [law], it shall be
unlawful for any person [to] knowingly or intentionally . . . distribute
. . . a controlled substance." Generally, in order to convict under
§ 841(a)(1), the prosecution is obliged to prove "that (1) [the] defen-
dant knowingly or intentionally distributed the controlled substance
alleged in the indictment, and (2) at the time of such distribution the
defendant knew that the substance distributed was a controlled sub-
stance under the law." United States v. Tran Trong Cuong, 18 F.3d
1132, 1137 (4th Cir. 1994). An enhanced analysis applies, however,
to persons who are properly registered with the DEA. Pursuant to 21
U.S.C. § 822, such persons — including doctors — are authorized to
distribute controlled substances to the extent authorized by their regis-
trations. See § 822(a) (requiring persons who distribute controlled
substances to obtain annual registration from Attorney General);
§ 822(b) (authorizing registrant to distribute controlled substances "to
the extent authorized by the[ ] registration and in conformity with . . .
other provisions of [law]"); 28 C.F.R. § 0.100 (delegating, inter alia,
Attorney General’s authority under § 822 to DEA Administrator).
The seminal decision explaining the liability of such registered dis-
tributors is United States v. Moore, where the Supreme Court held
that a DEA registration under § 822 grants only "a qualified authori-
zation of certain activities, [and] not a blanket authorization" to dis-
pense controlled substances. See 423 U.S. 122, 131 (1975). The
defendants in Moore — physicians who, although registered with the
DEA pursuant to § 822, were convicted under § 841(a)(1) for illegally
distributing controlled substances — contended on appeal that, as
§ 822 registrants, they were immune from liability under § 841. The
Court disagreed, affirming their drug distribution convictions and
holding "that registered physicians can be prosecuted under § 841
when their activities fall outside the usual course of professional prac-
tice." Id. at 124 (the "criminal standard"). In discussing the proper
application of the criminal standard, we have observed that "a
licensed physician who prescribes controlled substances outside the
bounds of his professional medical practice is subject to prosecution
and is no different than a large-scale pusher." Tran Trong Cuong, 18
F.3d at 1137 (internal quotation marks omitted). In contrast to the
criminal standard, a medical malpractice plaintiff in South Carolina
must show in a civil case (1) "the generally recognized practices and
procedures that would be exercised by competent practitioners in a
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defendant doctor’s field of medicine under the same or similar cir-
cumstances," and (2) "that the defendant doctor departed from the rec-
ognized and generally accepted standards, practices, and procedures."
Gooding v. St. Francis Xavier Hosp., 487 S.E.2d 596, 599 (S.C. 1997)
(the "civil standard").
In our 1994 Tran Trong Cuong decision, we spelled out the proper
relationship between the criminal standard, on the one hand, and the
civil standard, on the other. Tran, a registered physician, had been
convicted on several distribution charges under § 841(a)(1). See Tran
Trong Cuong, 18 F.3d at 1133. He sought relief from his convictions
by, inter alia, contending that the prosecution’s evidence was insuffi-
cient. Id. at 1137. As part of his contention, Tran asserted that the trial
court had, in conducting his trial, mistakenly and erroneously applied
the civil standard instead of the criminal standard. Id.
We responded to Tran’s appeal by explaining the pertinent distinc-
tions between the criminal standard and the civil standard. In particu-
lar, Judge Chapman’s opinion observed that a criminal prosecution
requires "proof beyond a reasonable doubt that the doctor was acting
outside the bounds of professional medical practice." Tran Trong
Cuong, 18 F.3d at 1137. It elaborated that, in such a situation, a physi-
cian’s authority to prescribe drugs is being used "not for treatment of
a patient, but for the purpose of assisting another in the maintenance
of a drug habit or of dispensing controlled substances for other than
a legitimate medical purpose, i.e. the personal profit of the physician."
Id. We concluded that the instructions in Tran’s trial not only com-
ported with the criminal standard, but also required the prosecution
to prove that the physician had written prescriptions "without a legiti-
mate medical purpose," arguably a more stringent requirement than
the criminal standard announced in Moore, inuring "to [the] defen-
dant’s benefit." Id. at 1137-38.
Importantly, as Judge Chapman explained in Tran Trong Cuong,
we found sufficient evidence to sustain Tran’s distribution convic-
tions by relying in part on expert testimony that Tran had deviated
drastically from accepted medical standards. Id. at 1138-40. As Tran
Trong Cuong thus demonstrates, evidence that a physician’s perfor-
mance has consistently departed from accepted professional standards
supports the proposition that the physician was not practicing medi-
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cine, but was instead cloaking drug deals under the guise of a profes-
sional medical practice. As a result, such evidence may properly be
relevant to establish that the physician contravened the criminal stan-
dard of liability. See id.
b.
The defendants contend that the lawyers on both sides of this case
erroneously conflated the criminal standard with the civil standard
and that, as a result, they were tried and convicted for civil malprac-
tice rather than for the criminal distribution of drugs. Importantly,
however, the defendants have neither challenged the sufficiency of
the trial evidence nor the propriety of the jury instructions of the trial
court.9 Indeed, the defendants do not point to any specific trial error
that prejudiced them. Rather, they contend that their entire trial was
infected with an erroneous standard of proof and that the verdict must
thus be set aside, notwithstanding the sufficiency of the evidence and
the propriety of the jury instructions. As explained below, this posi-
tion does not pass muster.
First, the defendants have not directed us to any evidence that was
improperly introduced. In contending that they were erroneously
tried, the defendants appear to be asserting that, because standard-of-
care evidence might show that a physician contravened the civil stan-
9The instructions in this case are only distinguishable from those we
approved in Tran Trong Cuong in that the trial court here more clearly
articulated the distinction between the civil standard and the criminal
standard. See Tran Trong Cuong, 18 F.3d at 1137-38. In addition to recit-
ing the Tran Trong Cuong instructions nearly verbatim, the court cau-
tioned the jury about the standard-of-care evidence, J.A. 1299, and
explained the degree of proof (i.e., proof beyond a reasonable doubt)
necessary for a criminal conviction, Tr. 2390. The court further
instructed the jury that "[i]f you find that a defendant acted in good faith
in dispensing the drugs charged . . . , then you must find that defendant
not guilty." J.A. 1298. The court then addressed the standard-of-care evi-
dence and instructed the jury that the critical issue on the distribution and
drug conspiracy charges was not whether the defendants had acted negli-
gently, but "whether or not these physicians prescribed a controlled sub-
stance outside the bounds of their professional medical practice." J.A.
1299.
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dard, it must categorically be excluded from a criminal proceeding.
As our analysis in Tran Trong Cuong demonstrates, however, evi-
dence that a physician consistently failed to follow generally recog-
nized procedures tends to show that in prescribing drugs he was not
acting as a healer but as a seller of wares. See 18 F.3d at 1138-40; see
also Fed. R. Evid. 401 ("‘Relevant evidence’ means evidence having
any tendency to make the existence of any fact that is of consequence
. . . more probable or less probable than it would be without the evi-
dence."); Fed. R. Evid. 402 (providing that relevant evidence is gener-
ally admissible).10
Second, as the defendants concede, the jury was correctly
instructed on the applicable legal principles. The trial court was care-
ful to spell out the differences between the criminal standard and the
civil standard. Indeed, it admonished the jury that the defendants
could only be convicted under the criminal standard, and it empha-
sized that they could not be convicted if they had dispensed the con-
trolled substances at issue "in good faith." Ordinarily, of course, we
presume that a properly instructed jury has acted in a manner consis-
tent with the instructions. See Jones v. United States, 527 U.S. 373,
394 (1999). Nonetheless, the defendants maintain that, on this record,
an overwhelming probability exists that the jury ignored the instruc-
tions and convicted the defendants of civil malpractice. See Goldsmith
v. Witkowski, 981 F.2d 697, 703 (4th Cir. 1992) ("The presumption
of cure by a court’s instructions is overcome when there is an over-
whelming probability that the jury will be unable to follow the court’s
instructions, and a strong likelihood that the effect of the [trial error]
would be devastating to the defendant." (internal quotation marks
omitted)). In these circumstances, we are unable to agree with the
defendants. The jury entered its deliberations armed with ample
admissible evidence and with proper instructions on the applicable
legal principles. The defendants’ assertions that their lawyers were
10To be sure, an undue emphasis on standard-of-care evidence might,
in certain circumstances, confuse a jury. See Fed. R. Evid. 403
("Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of
the issues, or misleading the jury . . . .").
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confused at trial is insufficient to rebut the presumption that the jury
used these tools properly.11
In these circumstances, the defendants have not established any
trial error caused by a misapprehension of the criminal standard on
the part of the lawyers. They are unable to show that a substandard
performance by their lawyers conclusively appears from the record,
and they have also failed to demonstrate that the prosecutors engaged
in any improper conduct relating to the standard of proof or their use
of evidence. Accordingly, we decline to reach and address the defen-
dants’ ineffective assistance claims, and we reject their prosecutorial
misconduct claims on the merits.
B.
Next, the defendants contend that the evidence was insufficient to
support their convictions on the laundering conspiracy charge and that
the district court therefore erred in denying their motions, pursuant to
Rule 29 of the Federal Rules of Criminal Procedure, for judgment of
acquittal on that charge. The defendants’ contention on this point is
premised on their view that, as a matter of law, a defendant must have
committed the substantive offense of promotion money laundering in
order to be convicted on the laundering conspiracy charge. As
explained below, that proposition is legally incorrect. Moreover, the
jury was properly instructed — without objection — on the launder-
ing conspiracy charge, and the defendants’ convictions on that offense
are supported by substantial evidence.12
11Even if the defendants could show error with respect to their
standard-of-proof assertions, it would be difficult to conclude that they
were thereby prejudiced. Indeed, Dr. Woodward’s testimony alone was
sufficient to convict the defendants, and it was supported by other evi-
dence. And in light of its verdict, we assume that the jury credited Wood-
ward’s testimony. See United States v. Hughes, 401 F.3d 540, 544-45
(4th Cir. 2005).
12The defendants also maintain on appeal that, as a predicate to con-
victing them on the laundering conspiracy charge, the jury was obliged
to find that they had contravened the criminal standard in prescribing
controlled substances. In so doing, they reassert their ineffective assis-
tance and prosecutorial misconduct claims in attacking their convictions
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1.
We review de novo a district court’s denial of a Rule 29 motion for
judgment of acquittal. United States v. Ryan-Webster, 353 F.3d 353,
359 (4th Cir. 2003).13 In so doing, we are obliged to sustain a guilty
verdict if, viewing the evidence in the light most favorable to the
Government, it is supported by "substantial evidence." United States
v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc) (citing Glasser
v. United States, 315 U.S. 60, 80 (1942)). We have defined "substan-
tial evidence" as "evidence that a reasonable finder of fact could
accept as adequate and sufficient to support a conclusion of a defen-
dant’s guilt beyond a reasonable doubt." Id. Moreover, in conducting
such a review, we must "remain cognizant . . . that the jury, not the
reviewing court, weighs the credibility of the evidence and resolves
any conflicts in the evidence presented." Id. (internal quotation marks
omitted).
2.
The laundering conspiracy charge is, in substance, that the defen-
dants contravened 18 U.S.C. § 1956(h) by conspiring with Dr. Wood-
ward and others to commit promotion money laundering, as defined
in 18 U.S.C. § 1956(a)(1)(A)(i). By its terms, the promotion money
laundering provision — the violation of which was the object of the
laundering conspiracy charge — requires the prosecution to (1) trace
the money at issue to an underlying unlawful activity, and (2) prove
that the money was transferred in order to promote a specified unlaw-
ful activity. See § 1956(a)(1)(A)(i).14 In previously addressing a pro-
on the laundering conspiracy charge. As explained above, see supra Part
II.A, we are unable to grant relief on either of those claims, and we thus
need not address whether they might have entitled the defendants to
relief on the laundering conspiracy charge.
13Pursuant to Rule 29(a), "[a]fter the government closes its evidence or
after the close of all the evidence, the court on the defendant’s motion
must enter a judgment of acquittal of any offense for which the evidence
is insufficient to sustain a conviction." A Rule 29 determination thus
focuses on both the elements of the offense charged and on the factual
sufficiency of the evidence.
14The offense of promotion money laundering stands in contrast to the
offense of "concealment money laundering," as defined and prohibited
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motion money laundering issue, we found the promotion element
satisfied when a defendant paid his subordinate employee for being
involved in an unlawful scheme, because such payments compensated
the employee for his illegal activities and encouraged his continued
participation. United States v. Bolden, 325 F.3d 471, 489 (4th Cir.
2003).
Pursuant to § 1956(h), the laundering conspiracy statute, "[a]ny
person who conspires to commit any offense defined in [§ 1956] . . .
shall be subject to the same penalties as those prescribed for the
offense the commission of which was the object of the conspiracy."
Thus, in order for the jury to convict on the laundering conspiracy
charge, the prosecution was obliged to prove that (1) a conspiracy to
commit promotion money laundering was in existence, and (2) that
during the conspiracy, the defendant knew that the proceeds used to
further CCPMC’s illicit operations had been derived from an illegal
activity, and knowingly joined in the conspiracy. See United States v.
Diamond, 378 F.3d 720, 727 (7th Cir. 2004) ("To convict a defendant
of conspiracy to commit money laundering, the government must
show the defendant was involved with two or more people to launder
money and that the defendant knew the proceeds used to further the
scheme were derived from an illegal activity."). As explained below,
substantial evidence supports each of these elements, and the district
court properly denied the defendants’ requests for judgments of
acquittal on the laundering conspiracy charge.
a.
First, the defendants challenge their convictions on the laundering
conspiracy charge by contending that the evidence was insufficient to
find them guilty of promotion money laundering. This contention
by § 1956(a)(1)(B)(i). While both offenses require the prosecution to
trace the funds at issue to a specified unlawful activity, a defendant com-
mits promotion money laundering by transferring the funds "to promote
the carrying on of specified unlawful activity," see § 1956(a)(1)(A)(i),
whereas concealment money laundering is committed by transferring
such funds "to conceal or disguise" their illegal origins, see
§ 1956(a)(1)(B)(i).
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misses the point: As a factual matter, the defendants were neither
charged with nor convicted of promotion money laundering. Rather,
they were charged with and convicted of conspiring to commit pro-
motion money laundering. As a legal matter, the prosecution was not
required to prove that the defendants had committed promotion
money laundering in order to convict them of conspiring to do so. See
Diamond, 378 F.3d at 727. Accordingly, we need not — and do not
— reach the issue of whether the evidence in this case would have
supported their convictions on the substantive offense of promotion
money laundering. Cf. United States v. Heaps, 39 F.3d 479, 486 (4th
Cir. 1994) (concluding that simple drug transaction did not constitute
promotion money laundering where no evidence showed that pro-
ceeds from transaction were subsequently used to promote unlawful
activity), recognized as abrogated on other grounds by United States
v. Villarini, 238 F.3d 530, 534-35 (4th Cir. 2001). Our inquiry is thus
limited to whether the trial evidence was sufficient to sustain the
defendants’ convictions for conspiracy to commit promotion money
laundering.
b.
Second, the defendants have not assigned error to the court’s
instructions on the laundering conspiracy charge, and they interposed
no objection to those instructions at trial. The court instructed the jury
that, in order to convict on that charge, it was obliged to find beyond
a reasonable doubt as to each defendant: (1) that the conspiracy
alleged existed; (2) that "at some time during the . . . life of the con-
spiracy . . . the defendant knew the purpose of the agreement and then
deliberately joined the conspiracy"; and (3) that "[a]t some point dur-
ing the . . . life of the conspiracy . . . one of its alleged members
knowingly performed one of the overt acts charged in order to further
or advance the purpose of the conspiracy." Tr. 2413. The court also
explained to the jury the essential elements of the offense of promo-
tion money laundering, which was the object of the laundering con-
spiracy charge. Tr. 2413-15.
Not only have the defendants failed to assign error to the instruc-
tions, the trial court arguably added an unnecessary element to the
§ 1956(h) offense, favoring the defendants. The court instructed the
jury that it could not convict on the laundering conspiracy charge
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without finding that a conspirator had committed an overt act in fur-
therance of the conspiracy. Compare Tr. 2413 (instructing on overt
act requirement for § 1956(h)) with Whitfield v. United States, 125
S. Ct. 687, 691 (2005) (holding that § 1956(h) has no overt act ele-
ment), and Bolden, 325 F.3d at 491 (same). In sum, there were no
objections to the relevant instructions, and the only possible error in
those instructions was to the benefit of the defendants.15
c.
Finally, there was substantial evidence presented to the jury sup-
porting the defendants’ convictions on the laundering conspiracy
charge. According to Dr. Woodward’s evidence, the defendants
agreed to participate with him and others in carrying on CCPMC’s
unlawful operations (the prescription-selling and health-care-fraud
schemes). The conspiracy the defendants joined called for Woodward
and his companies to acquire funds through CCPMC’s illegal activi-
ties and then distribute those funds to CCPMC’s physicians, employ-
ees, and owners (including the defendants), as compensation for their
efforts; that is, the scheme called for Woodward to commit promotion
money laundering. Cf. Bolden, 325 F.3d at 489 (concluding that pro-
motion money laundering conviction was supported by evidence that
defendant paid subordinate for participation in illegal scheme because
15Although not an issue on appeal, the instructions on the unlawful
activity aspect of the object of the laundering conspiracy charge varied
from the indictment. As explained above, the object of the conspiracy in
that charge was promotion money laundering. The laundering conspiracy
charge identified three specific unlawful activities that the conspiracy
sought to promote: (1) the unlawful distribution of controlled substances
(21 U.S.C. § 841); (2) health care fraud (18 U.S.C. § 1347); and (3) pro-
motion money laundering (18 U.S.C. § 1956(a)(1)(A)(i)). J.A. 103. The
court instructed, however, that the "specified unlawful activity is the con-
spiracy to distribute or dispense controlled substances." Tr. 2416
(emphasis added). There was no objection to this instruction, perhaps
because the defendants believed it to be advantageous to them. In any
event, it would plainly appear to be a non-fatal variance. See United
States v. Davis, 202 F.3d 212, 216 n.3 (4th Cir. 2000) ("[A] non-
prejudicial variance between the indictment and the proof that does not
modify the elements of the charged offense is no basis to invalidate a
conviction.").
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such payment compensated subordinate for past illegal activities and
encouraged his future participation).16 Unfortunately for the defen-
dants, they cannot, as a legal proposition, divorce themselves from the
reasonably foreseeable acts which Woodward committed in further-
ance of the conspiracy while they were members thereof. See United
States v. Newsome, 322 F.3d 328, 338 (4th Cir. 2003) ("[U]nder con-
spiracy law, [a conspirator] is liable for the conduct of all co-
conspirators that was in furtherance of the conspiracy and reasonably
foreseeable.") (citing Pinkerton v. United States, 328 U.S. 640, 646-
47 (1946))).
Dr. Woodward’s evidence, if credited by the jury, thus established
the essential elements, as spelled out in the instructions, for convic-
tion of the defendants on the laundering conspiracy charge: (1) that
there was a conspiracy to commit promotion money laundering; (2)
that during the life of the conspiracy, each defendant knew the pur-
pose thereof and then deliberately joined in it; and (3) that during the
conspiracy, a conspirator performed at least one of the overt acts
alleged in furtherance thereof. Crediting Woodward’s testimony, as
we must, the convictions on the laundering conspiracy charge are sup-
ported by substantial evidence.
C.
In their third and final appellate contention, the defendants main-
tain they are entitled to resentencing under United States v. Booker,
125 S. Ct. 738 (2005), and its progeny. In its brief, in its supplemental
letter of April 15, 2005 to this Court, and again at oral argument, the
prosecution has conceded error on this issue and agreed that Booker
mandates resentencing of the defendants. The prosecution’s position
16In their Reply Brief, the defendants concede that the Bolden princi-
ples "might support a promotion [money laundering] claim against Dr.
Woodward," but nonetheless contend that it cannot "support[ ] a promo-
tion [money laundering] claim against Drs. Alerre, Bordeaux, and Jack-
son." Reply Br. at 15. As related above, this contention is beside the
point.
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is valid, and we therefore vacate the defendants’ sentences and
remand for such resentencing proceedings as may be appropriate.17
III.
Pursuant to the foregoing, we affirm the defendants’ convictions,
vacate their sentences, and remand.
AFFIRMED IN PART,
VACATED IN PART, AND REMANDED
17As in United States v. Hughes, "[w]e of course offer no criticism of
the district judge, who followed the law and procedure in effect at the
time of [the defendants’] sentencing." See 401 F.3d 540, 545 n.4 (4th Cir.
2005).
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