United States of America v. Gregory Wells, M.d. (98-6010); Ronald Lee Dillion (98-6011)

*The Honorable James G. Carr, United States District Judge for the
Northern District of Ohio, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0161P (6th Cir.)
File Name: 00a0161p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED S TATES OF AMERICA ,
Plaintiff-Appellee,
v.
GREGORY W ELLS, M.D.
(98-6010); R ONALD LEE
DILLION (98-6011),
Defendants-Appellants.
;>

1
Nos. 98-6010/6011
Appeal from the United States District Court
for the Eastern District of Kentucky at Pikeville.
No. 97-00016—Joseph M. Hood, District Judge.
Argued: December 6, 1999
Decided and Filed: May 10, 2000
Before: COLE and GILMAN, Circuit Judges; CARR,*
District Judge.

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2 United States v. Wells, et al. Nos. 98-6010/6011
_________________
COUNSEL
ARGUED: Eldred E. Adams, Jr., ADAMS & ADAMS,
Louisa, Kentucky, John K. West, McCOY, BAKER &
WEST, Lexington, Kentucky, for Appellants. Patrick H.
Molloy, ASSISTANT UNITED STATES ATTORNEY,
Lexington, Kentucky, for Appellee. ON BRIEF: Eldred E.
Adams, Jr., ADAMS & ADAMS, Louisa, Kentucky, John K.
West, McCOY, BAKER & WEST, Lexington, Kentucky, for
Appellants. Patrick H. Molloy, Charles P. Wisdom, Jr.,
ASSISTANT UNITED STATES ATTORNEYS, Lexington,
Kentucky, for Appellee.
_________________
OPINION
_________________
R. GUY COLE, JR., Circuit Judge. Defendants-Appellants
Gregory Wells, M.D., and Ronald Lee Dillion appeal from
their jury convictions on ten counts of narcotics crimes. The
convictions all arise from Dr. Wells’s prescriptions for
thousands of dosages of controlled substances for the use and
benefit of Dillion, a friend and patient. On appeal, Dr. Wells
and Dillion raise multiple issues. None of Dr. Wells’s claims
have merit, and we AFFIRM his conviction. However,
because the district court erred in the manner in which it
assessed Dillion’s claim that the government breached his
plea agreement, we VACATE his sentence and REMAND
Dillion’s case to the district court for further proceedings
consistent with this opinion.
I. BACKGROUND
In 1983, the Kentucky Board of Medical Licensure licensed
Dr. Wells to practice medicine in Kentucky. From that time
until his trial in this case, Dr. Wells practiced general
medicine in Inez, Kentucky. The Drug Enforcement Agency
(DEA) issued Dr. Wells a registration number in August 1983
Nos. 98-6010/6011 United States v. Wells, et al. 23
quotation omitted). Here, the district court was clearly aware
of its discretion to depart downward: it noted that it had
received numerous letters on Dr. Wells’s behalf and sua
sponte considered, and rejected, a downward departure.
Because the district court was aware of its discretion to depart
downward, its refusal to do so is not reviewable by this court.
See id.
VI. CONCLUSION
After carefully reviewing the record, arguments, and briefs
of the parties in this case, we AFFIRM the conviction of Dr.
Wells, but VACATE Dillion’s sentence and REMAND his
case to the district court for further proceedings consistent
with this opinion.

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22 United States v. Wells, et al. Nos. 98-6010/6011
§ 2D1.1 applies. Dr. Wells also argues that this was not a
“street” transaction in which money was involved. These
arguments lack merit. The indictment against Dr. Wells was
not vindictive, and the jury convicted him of violating 21
U.S.C. § 841(a)(1). Because the most applicable guideline to
this offense is § 2D1.1, the district court did not err in
applying it.
B. Weight of Carrier Medium
Dr. Wells argues that the district court erred in its
calculation of the amount of drugs attributable to him because
the court considered the weight of the carrier medium as well
as that of the controlled substance. As noted by the district
court, § 2D1.1 provides that “[u]nless otherwise specified, the
weight of a controlled substance set forth in the table refers to
the entire weight of any mixture or substance containing a
detectable amount of the controlled substance.” See U.S.S.G.
§ 2D1.1(c), note A. Dr. Wells points to the reference to
“total weight of the controlled substance” in application note
11 to § 2D1.1 to argue that only the weight of the controlled
substance should have been considered rather than the weight
of the entire mixture.
This court considered and rejected Dr. Wells’s argument in
United States v. Landers, 39 F.3d 643 (6th Cir. 1994). This
case presents essentially the same situation. Thus, Dr.
Wells’s argument does not provide a basis for resentencing.
C. Downward Departure
Dr. Wells argues that the district court erred by failing to
depart downward in his sentence based upon his exemplary
community service. The government submits that this issue
is not properly before the court. The government is correct.
A sentence conforming to the guideline range cannot be
appealed based on the district court’s refusal to depart
downward in sentence unless the district court “incorrectly
believed that [it] lacked any authority to consider defendant’s
mitigating circumstances as well as the discretion to deviate
from the guidelines.” Landers, 39 F.3d at 649 (citation and
Nos. 98-6010/6011 United States v. Wells, et al. 3
1The record before us does not detail the circumstances surrounding
the Board’s suspension of Dr. Wells’s prescription privilege.
which authorized Dr. Wells to write prescriptions for
controlled substances in accordance with 21 U.S.C. § 801 et
seq. The Kentucky Board of Medical Licensure suspended
Dr. Wells’s capacity to write prescriptions for narcotics in
October 1995.1
Ronald Lee Dillion, a former Kentucky State Police officer,
became a patient of Dr. Wells in 1994. Dillion saw Dr. Wells
for a neck and back ailment and for a blood disorder. Dillion
took a prescription pain medication, Lorcet, to treat the pain
associated with his neck and back problems. In addition to
their professional relationship, Dr. Wells and Dillion were
friends who talked with each other frequently and took at least
one trip together.
Following an investigation that began as a Medicaid fraud
investigation centered on Dr. Wells, the government filed a
seven-count indictment against Dr. Wells and Dillion on June
18, 1997. The first count charged Dr. Wells and Dillion with
conspiring to acquire and obtain controlled substances by
misrepresentation, fraud, deception, or subterfuge, in
violation of 21 U.S.C. §§ 846 and 843(a)(3). Counts two
through six alleged that Dr. Wells had written prescriptions
which Dillion had used to obtain Schedule II and Schedule III
controlled substances, see 21 U.S.C. § 812, and charged the
two men with aiding and abetting one another in knowingly
and intentionally acquiring and obtaining the drugs by
misrepresentation, fraud, deception and subterfuge, in
violation of 21 U.S.C. § 843(a)(3) and 18 U.S.C. § 2. The
final count charged Dr. Wells and Dillion with aiding and
abetting one another in obtaining Lorcet, a Schedule III
narcotic, and alleged that Dr. Wells had written prescriptions
for Dillion that were outside the scope of appropriate medical
practice, in violation of 21 U.S.C. § 843(a)(3) and 18 U.S.C.
§ 2. Both defendants pleaded not guilty to all seven counts.

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4 United States v. Wells, et al. Nos. 98-6010/6011
2On January 22, 1998, the government filed a second superseding
indictment against Dr. Wells and Dillion which did not differ in any way
material to this appeal.
On November 20, 1997, the government filed a superseding
indictment against Dr. Wells and Dillion. The superseding
indictment included the first six counts from the original
indictment, but added several new counts. Count seven
charged Dr. Wells and Dillion with aiding and abetting one
another in illegally dispensing and distributing Tylox, a
Schedule II narcotic, in violation of 21 U.S.C. § 841(a)(1) and
18 U.S.C. § 2. Count seven alleged that Dr. Wells had
written, outside the scope of appropriate medical practice and
not for a legitimate medical purpose, a prescription for Tylox
in the name of a third person, but actually intended the drug
for Dillion. Counts eight through twelve of the superseding
indictment charged both defendants with five other instances
of aiding and abetting each other in illegally distributing and
dispensing Schedule II narcotics by prescribing them for a
third party but intending them for Dillion. Both defendants
pleaded not guilty to the charges in the superseding
indictment.2
On August 5, 1996, Dillion entered into a plea agreement
with the government. In March 1997, the government
informed Dillion that it considered the agreement to be null
and void because Dillion had failed to cooperate under the
agreement. Dillion moved to enforce the plea agreement on
August 15, 1997, but the court denied the motion on October
30, 1997.
Dr. Wells and Dillion were tried by a jury. At the close of
evidence, the defendants moved for acquittal. The court
denied the motion on ten of the counts, but granted it as to
counts three and six, because the government failed to prove
under those counts that the third parties for whom Dr. Wells
had prescribed drugs had not actually received the drugs.
After the jury found both defendants guilty of the remaining
ten counts, the court sentenced Dr. Wells to a total of 78
months’ imprisonment, three years of supervised release, and
Nos. 98-6010/6011 United States v. Wells, et al. 21
10Dillion echoes Dr. Wells’s argument that the district court applied
the wrong base offense level in computing his sentence. Because
Dillion’s sentence will change if the district court finds that his plea
agreement is enforceable, we do not address his argument here.
Nonetheless, we see no reason why our conclusion about Dillion’s
argument would be any different from the conclusion we reach about Dr.
Wells’s argument regarding the base offense level.
V. SENTENCING ISSUES
A. Base Offense Level
Dr. Wells argues that the district court erred by applying
U.S.S.G. § 2D1.1 rather than § 2D2.2 in calculating his base
offense level.10 Dr. Wells argues that his offense was more
akin to acquiring a controlled substance by fraud, the offense
to which § 2D2.2 corresponds, than to distributing controlled
substances, which is covered by § 2D1.1. The district court
rejected this argument because Dr. Wells was convicted of
distribution in addition to obtaining controlled substances by
fraud.
We review the application of a guideline to a particular set
of facts de novo. See United States v. Childers, 86 F.3d 562,
563 (6th Cir. 1996). The offense guideline most applicable to
the offense of conviction should be used in determining a
defendant’s base offense level. See U.S.S.G. § 1B1.2(a).
Section 2D1.1 is the appropriate sentencing guideline for the
unlawful manufacturing, importing, exporting, or trafficking
of controlled substances, see U.S.S.G. § 2D1.1, and serves as
the reference point for violations of 21 U.S.C. § 841(a)(1).
See U.S.S.G. App. A. In contrast, § 2D2.2 is the appropriate
sentencing guideline for acquiring a controlled substance by
forgery, fraud, deception, or subterfuge in violation of 21
U.S.C. § 843(a)(3). See U.S.S.G. § 2D2.2.
Dr. Wells contends that the district court erred because he
was originally indicted under 21 U.S.C. § 843(a)(1) and it was
the “vindictive” superseding indictment that included the
more serious 21 U.S.C. § 841(a)(1) violations to which

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20 United States v. Wells, et al. Nos. 98-6010/6011
whole, were confusing, misleading and prejudicial. See
United States v. Sheffey, 57 F.3d 1419, 1430 (6th Cir. 1995)
(quoting United States v. Clark, 988 F.2d 1459, 1468 (6th Cir.
1993)). Our inquiry into jury instructions is limited to
whether, taken as a whole, the instructions adequately inform
the jury of the relevant considerations and provide the jury
with a sound basis in law with which to reach a conclusion.
See id at 1430 (citation omitted). A particular jury instruction
“may not be judged in artificial isolation, but must be viewed
in the context of the overall charge.” Cupp v. Naughten, 414
US. 141, 146-47 (1973). Upon our review of all the jury
instructions in this case, we are convinced that the jury was
aware that to return a guilty verdict, it had to find that Dillion
knowingly acquired controlled substances by doing something
deceitful or untruthful. The district court did not err.
Dr. Wells also argues that the court’s jury instructions
regarding the charges pursuant to 21 U.S.C. § 841(a)(1) were
erroneous because they permitted the jury to find Dr. Wells
guilty of “simple medical malpractice” without finding him
guilty of the proscribed offense of distributing controlled
substances. We disagree. The district court instructed the
jury that is must find the following elements beyond a
reasonable doubt in order to return a guilty verdict: “(A) First,
that [Dr. Wells] knowingly or intentionally distributed the
controlled substance named in that count; and (B) Second,
that he distributed such controlled substance outside the
course of professional practice and not for a legitimate
medical purpose.” As the government points out, the judge
defined “distribute” for the jury as meaning “to unlawfully
transfer or to cause the unlawful transfer of a controlled
substance from one person to another.” Thus, the jury was
aware that in order to convict Dr. Wells, it had to find that he
unlawfully transferred (or caused the transfer of) controlled
substances to another person and not that he simply
prescribed medications in a negligent manner. The
instructions were sufficient.
Nos. 98-6010/6011 United States v. Wells, et al. 5
3The government also argues that, although both parties signed the
agreement, the agreement is not binding because the court never accepted
it. It is, of course, true that a plea agreement is not binding on the court
until it accepts the agreement. See Fed. R. Crim. P. 11. Whether a signed
plea agreement may be binding on the government prior to acceptance by
the court is a different matter. Although some courts have found that a
plea agreement is not enforceable against the government until it is
accepted by the trial court, see, e.g., United States v. Ocanas, 628 F.2d
353, 358 (5th Cir. 1980), others have enforced agreements even where the
trial court has not yet approved them, see, e.g., United States v. Mozer,
828 F. Supp. 208, 214-16 (S.D.N.Y. 1993); see also United States v.
Fitch, 964 F.2d 571, 575 (6th Cir. 1992) (holding that informal immunity
agreement is binding on government where defendant did not materially
breach agreement). If Dillion substantially relied on the plea agreement,
or was prejudiced by providing information which the government used
in its ongoing investigation or at trial, we think that the contract would be
-- in the absence of breach by Dillion -- binding on the government. See
United States v. Brown, 801 F.2d 352, 355 (8th Cir. 1986) (stating that if
district court determines on remand that defendant did not breach
cooperation agreement entered into with government, “fundamental
fairness requires the government to uphold its part of the agreement and
the district court may enforce the agreement.”); see also United States v.
Aguilera, 654 F.2d 352, 354 (5th Cir. 1981); Ocanas, 628 F.2d at 358.
We leave it to the lower court to resolve the factual issues of reliance and
a $1,000 assessment, and Dillion to a total of 63 months’
imprisonment, three years of supervised release, and a $1,000
assessment. Both Dr. Wells and Dillion filed timely notices
of appeal.
II. DILLION’S PLEA AGREEMENT
Dillion’s first argument on appeal is that the district court
abused its discretion by failing to enforce his plea agreement
with the government. Dillion claims that the government
failed to prove by a preponderance of the evidence that
Dillion had materially and substantially breached the
agreement. The government responds that, due to his drug
addiction, Dillion breached the agreement by being unable to
comply with its terms and by failing to provide useful
information. The government also argues that Dillion
breached the plea agreement by failing to obtain treatment for
his drug addiction.3

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6 United States v. Wells, et al. Nos. 98-6010/6011
prejudice in its evaluation of whether Dillion fulfilled his obligations
under the plea agreement.
A. Background of the Plea Agreement
Under his written plea agreement, Dillion agreed to plead
guilty to conspiracy to obtain possession of a controlled
substance by misrepresentation, fraud, forgery, deception, or
subterfuge, in violation of 21 U.S.C. §§ 846 and 843(a)(3),
and “to fully cooperate” with the government in its
investigation and prosecution of related criminal activity. In
return, the government agreed to limit its prosecution of
Dillion’s involvement in the narcotics crime to the conspiracy
charge. The government also agreed, in the event that Dillion
provided “substantial assistance” in its investigation and
prosecution, to consider filing a U.S.S.G § 5K1.1 motion
requesting the district court to impose a sentence below the
established guideline range. The agreement was absolutely
clear that it “constitute[d] the entire Plea Agreement between
the United States and the defendant,” and that it “supersede[d]
all prior understandings, promises and /or representations, if
any, whether written or oral, which may have existed between
the parties hereto.”
On the day that the parties signed the agreement, Dillion
met with government investigators and the AUSA for most of
the day. Dillion provided the government with information at
that time, although the parties disagree over how helpful the
information proved to be. Dillion met with government
investigators on one more occasion, on August 9, 1996. After
the second meeting, the government made several attempts to
schedule further meetings through Dillion’s attorney, but none
of the meetings came to fruition. In March 1997, the
government informed Dillion’s attorney by letter that the
government considered the plea agreement null and void
because Dillion had failed to cooperate with the government.
In August 1997, Dillion filed a motion to enforce the plea
agreement. After a hearing at which several witnesses
testified, the district court issued a written order denying
Nos. 98-6010/6011 United States v. Wells, et al. 19
court erred in excluding Dr. Walker’s testimony, we are
satisfied that Dr. Well’s right to a fair trial was not
undermined by exclusion of that testimony.
IV. OTHER ISSUES
A. Prosecutorial Vindictiveness
Dr. Wells argues that the superseding indictment filed by
the government represents a case of prosecutorial
vindictiveness because its sole purpose was to impose drastic
penalties on him and because it was not the result of new
information acquired subsequent to the original indictment.
The claim fails. To establish vindictive prosecution, a
defendant must show that the prosecutor has some personal
“stake” in deterring the defendant’s exercise of his
constitutional rights, and that the prosecutor’s conduct was
unreasonable. See United States v. Branham, 97 F.3d 835,
849-50 (6th Cir. 1996) (citations omitted). Because there is
nothing in the record to suggest that the government’s
attorney had a stake in the prosecution of Dr. Wells, or that he
acted unreasonably, the claim fails.
B. Jury Instructions
Dr. Wells argues that the jury instructions regarding his
alleged violations of 21 U.S.C. § 843(a)(3) were improper
because they failed to explain the legal meanings of words
used in the statute. As part of its instructions to the jury, the
court told the jury that in order to convict Dr. Wells it must
find the following: “First, that the crime of knowingly and
intentionally acquiring or obtaining possession of controlled
substances by misrepresentation, fraud, forgery, deception or
subterfuge, as charged in counts 2, 4, and 5, was committed
by Ronald Lee Dillion.” Dr. Wells argues that
“misrepresentation, fraud, forgery, deception or subterfuge”
have special legal meanings and proposed instructions of his
own.
This court may reverse a judgment on the basis of improper
jury instructions only if the instructions, when viewed as a

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18 United States v. Wells, et al. Nos. 98-6010/6011
patient. The evidence was sufficient for a rational jury to
convict Dr. Wells on counts two, four, and five.
D. Exclusion of Testimony by Dr. Wells’s Expert
Dr. Wells also argues that the district court erred by
excluding testimony from his expert, Dr. Walker, related to
whether Adkins had asked Dillion to help her obtain
prescription medication from Dr. Wells for her back pain. A
prescription for acetaminophen with codeine in the name of
Adkins was the subject of count five of the indictment.
Adkins testified that although she had asked Dillion to obtain
Albuterol, a medication she took for a chronic problem with
her breathing, from Dr. Wells on two or three occasions when
her own doctor was out of town, Dillion had never obtained
acetaminophen with codeine for her, and she had never met
nor spoken with Dr. Wells. When, later in the trial, the
defense asked its expert, Dr. Walker, whether Tylenol No. 4
(i.e., acetaminophen with codeine) would be an appropriate
medication for someone with back pain, the government
objected -- out of hearing of the jury -- on the basis that
Adkins had never testified to having any back pain. At the
government’s request, the district judge informed the jury that
it must disregard Dr. Walker’s testimony regarding the pain
medication because Adkins testified that she had never asked
Dillion to obtain medication for her back problems.
We will uphold the trial judge’s ruling on the admissibility
of evidence unless it is an abuse of discretion. Bonds, 12 F.3d
at 554. A trial court’s abuse of discretion is harmless and
does not require a new trial unless it affects a substantial
right. See id. The government’s basis for its objection was
wrong: Adkins did testify to having back pain and to taking
a prescription medication for it. Nonetheless, the information
that the district judge gave the jury -- that Adkins had testified
that she never asked Dillion for back pain medication -- was
correct. The trial court’s decision to exclude the expert
testimony regarding the medication Adkins took for her pain
was presumably made on the basis that it was not relevant.
See Fed. R. Evid. 401. Regardless of whether the district
Nos. 98-6010/6011 United States v. Wells, et al. 7
Dillion’s motion and finding that Dillion “failed to fulfill his
obligations under the plea agreement.”
B. Standard of Review and Governing Principles
“Plea agreements are contractual in nature. In interpreting
and enforcing them, we are to use traditional principles of
contract law.” United States v. Robison, 924 F.2d 612, 613
(6th Cir. 1991). Questions regarding the content of the plea
agreement are questions of fact; this court reviews the district
court’s determination of those questions for clear error. Id.
However, whether the government’s conduct violated the
agreement is a question of law that we review de novo. See
United States v. Hawley, 93 F.3d 682, 690 (10th Cir. 1996);
United States v. Valencia, 985 F.2d 758, 760 (5th Cir. 1993).
The trial court should hold the government to “a greater
degree of responsibility than the defendant . . . for
imprecisions or ambiguities in . . . plea agreements.” United
States v. Johnson, 979 F.2d 396, 399 (6th Cir. 1992) (citation
and quotation omitted). Although the burden is on the
government to show by a preponderance of the evidence that
the defendant breached the agreement, United States v.
Benjamin, 138 F.3d 1069, 1074 (6th Cir. 1998), a defendant
who breaches a plea agreement forfeits any right to its
enforcement. United States v. Skidmore, 998 F.2d 372, 375
(6th Cir. 1993) (citation omitted).
C. Discussion
The district court based its conclusion that Dillion failed to
fulfill his obligations under the plea agreement on two facts:
1) that Dillion “failed to get ‘clean,’” and 2) that Dillion
failed “to provide the assistance needed.” The court’s
reasoning raises two problems. First, the court clearly erred
in relying upon Dillion’s alleged promise to obtain drug
treatment in concluding that he breached the plea agreement.
The government’s protestations notwithstanding, the plea
agreement is completely devoid of any agreement that Dillion
obtain drug treatment in order to fulfill his part of the bargain.
The agreement could not be any more clear that it is the
“complete and only Plea Agreement” between the government

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8 United States v. Wells, et al. Nos. 98-6010/6011
and Dillion, and plainly states that “[t]he following additional
promises have been made by the defendant: NONE[.]” Thus,
the district court’s reliance on any oral statements Dillion may
have made that are not reflected in the written agreement is
clear error.
The second problem with the district court’s ruling is that
it applied the wrong standard in determining whether Dillion
fulfilled his obligations under the agreement. The agreement
required Dillion to “fully cooperate” with the government in
its further investigation and prosecution of criminal activity
related to Dillion’s and Dr. Wells’s conspiracy. Yet, in its
order, the district court characterized Dillion’s agreement as
a promise to provide “substantial assistance” in further
investigations and prosecutions, and found that Dillion “did
not, and could not, provide ‘substantial assistance’ to the
United States” because he gave the government contradictory
and unreliable information and failed to be a credible witness.
This is problematic because it appears that the court evaluated
Dillion’s compliance with the plea agreement by looking to
the government’s conditional promise to file a § 5K1.1
motion (i.e., if Dillion provided it with substantial assistance)
instead of looking to Dillion’s contractual obligation to “fully
cooperate” with the government. Because Dillion expressly
agreed to “fully cooperate” with the government and not to
“substantially assist[]” it, the proper analysis of his alleged
breach should have focused on whether he fully cooperated
with the government.
The difference between substantial assistance and full
cooperation is not merely semantic. A defendant might fully
cooperate with the government yet fail to provide information
that substantially assists it. If that happened in this case,
Dillion was not in breach of the plea agreement. Because this
is a question of fact that the district court must resolve, we
REMAND Dillion’s case to the district court. On remand, the
court should determine whether Dillion fully cooperated with
the government according to the terms of the plea agreement,
and not whether Dillion substantially assisted the government.
In determining whether Dillion fully cooperated with the
Nos. 98-6010/6011 United States v. Wells, et al. 17
twelve was outside the scope of medical practice. We are
confident that a rational trier of fact could have found both
Dillion and Dr. Wells guilty of the charges in counts seven
through twelve.
Dr. Wells also argues that there was insufficient evidence
to convict him of counts one, two, four, and five. He argues
that he was improperly charged with conspiring to violate and
with violating 21 U.S.C. § 843(a)(3) because the statute does
not apply to physicians; thus, he cannot be guilty of violating
the statute. This argument fails. As the government points
out, the plain language of § 843(a)(3) applies to “any person”
who “knowingly or intentionally . . . acquire[s] or obtain[s]
possession of a controlled substance by misrepresentation,
fraud, forgery, deception, or subterfuge,” 21 U.S.C.
§ 843(a)(3), and courts have not hesitated to apply § 843(a)(3)
to physicians. See, e.g., United States v. Antoon, 933 F.2d
200 (3d Cir. 1991); United States v. Blanton, 730 F.2d 1425
(11th Cir. 1984). The case Dr. Wells cites to stand for the
proposition that the statute applies only to pharmacists,
United States v. Limberopoulos, 26 F.3d 245 (1st Cir. 1994),
cites United States v. Devous, 764 F.2d 1349 (10th Cir. 1985),
in which the court affirmed the conviction of a physician
pursuant to § 843(a)(3). Dr. Wells’s claim with respect to
count one has no merit.
Further, there was sufficient evidence for a rational jury to
find Dr. Wells guilty beyond a reasonable doubt of the crimes
alleged in counts two, four, and five. See Jackson, 443 U.S.
at 319. The government put on evidence showing that Dillion
was in possession of several of Dr. Wells’s prescription pads
and individual prescriptions from Dr. Wells, some of which
were signed. The government showed that Margaret Friend,
the mother of one of Dillion’s ex-wives and in whose name
the prescription that is the subject of count two was written,
never received a prescription from Dr. Wells and did not even
know the man. The government made a similar showing
regarding count four, and put on evidence that Joyce Adkins,
Dillion’s sister and in whose name the prescription that is the
subject of count five was written, never saw Dr. Wells as a

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16 United States v. Wells, et al. Nos. 98-6010/6011
show: 1) the variance itself; and 2) that the variance affects a substantial
right of the defendant. Id. Dr. Wells is unable to meet even the first
prong of this test. In counts seven through twelve, the government
charged Dr. Wells with knowingly and intentionally distributing
controlled substances in violation of 21 U.S.C. § 841(a)(1) by writing
prescriptions for a third party but intending the drugs for Dillion. The
government put on proof that Dr. Wells knowingly and intentionally
prescribed drugs for Arlie Boyd so that Dillion could obtain them for
himself. There was no variance between the charges and the proof.
considering whether there is sufficient evidence to sustain a
conviction, we must determine “whether, after viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.” Jackson v. Virginia,
443 U.S. 307, 319 (1979) (emphasis in original). This court
must uphold a jury verdict if there is substantial evidence,
viewed in the light most favorable to the government, to
support it. See Burks v. United States, 437 U.S. 1, 17 (1978).
In considering the evidence, we allow the government the
benefit of all reasonable inferences and refrain from
independently judging the weight of the evidence. See United
States v. Welch, 97 F.3d 142, 148 (6th Cir. 1996).
Counts seven through twelve accused the defendants of
aiding and abetting each other in distributing and dispensing
controlled substances for the benefit of Dillion by prescribing
the drugs for a third person, and doing so outside the scope of
professional practice. The third person in whose name these
drugs were prescribed was Arlie Boyd. The government put
forward evidence that Dr. Wells ordered prescriptions for
Boyd on the dates alleged in counts seven through twelve,
that Boyd was not taking prescription medication at the time
the prescriptions were dispensed, and that he never went to
see Dr. Wells in person. In addition, the government showed
that Dr. Wells ordered thousands of dosages of prescription
medication for Boyd, ostensibly for symptoms associated with
cancer, at a time when Boyd was cancer-free. Through its
expert, Dr. Kennedy, the government showed that Dr. Wells’s
record on Boyd was minimal, and that each of the
prescriptions that are the subjects of counts seven through
Nos. 98-6010/6011 United States v. Wells, et al. 9
government, the court should look to the requirements of the
agreement itself and not to additional promises that either
Dillion or the government made during plea negotiations. See
United States v. Hunt, 205 F.3d 931, 935 (6th Cir. 2000)
(stating that integration clause normally prevents criminal
defendant who has entered into plea agreement from asserting
that government made promises not contained in plea
agreement itself).
III. EVIDENCE ISSUES
A. Admission of Expert Testimony Pursuant to Rule 16
Both Dr. Wells and Dillion argue that the district court
erred by admitting expert testimony that it should have
excluded. First, appellants argue that the government failed
to provide sufficient discovery pursuant to Fed. R. Crim. P.
16(a)(1)(E) in regard to the testimony of Dr. Douglas
Kennedy, a government witness. Second, they argue that the
government violated the requirements of Rule 16(a)(1)(E) by
permitting Drs. Charles Hieronymus and Syed Badrudduja to
testify as experts even though the government proffered them
as lay witnesses.
Rule 16(a)(1)(E) requires the government to provide a
defendant, at the defendant’s request, with a written summary
of expert testimony that it intends to use in its case-in-chief.
Fed. R. Crim. P. 16(a)(1)(E). The summary must “describe
the witnesses’ opinions, the bases and the reasons for those
opinions, and the witnesses’ qualifications.” Id. The purpose
of this rule is “to minimize surprise that often results from
unexpected expert testimony, reduce the need for
continuances, and to provide the opponent with a fair
opportunity to test the merit of the expert’s testimony through
focused cross-examination.” Fed. R. Crim. P. 16 advisory
committee’s note to 1993 amendment. We review the trial
court’s determination that expert testimony has met the
requirements of Rule 16 for abuse of discretion. See United
States v. Bonds, 12 F.3d 540, 554 (6th Cir. 1993); United
States v. Seiber, No. 96-6463, 1998 WL 165153, at **4 (6th
Cir. Apr. 3, 1998).

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10 United States v. Wells, et al. Nos. 98-6010/6011
Dillion and Dr. Wells do not dispute that the government
provided them with Dr. Kennedy’s qualifications prior to
trial, but claim that Dr. Kennedy’s testimony went well
beyond the scope of the summary the government submitted
to them. They protest in particular Dr. Kennedy’s testimony
regarding the requirements of establishing a doctor-patient
relationship before prescribing controlled substances for a
patient, and his testimony regarding Kentucky law
requirements for prescribing controlled substances. We find
these complaints to be unpersuasive.
Dr. Wells and Dillion should not have been surprised by
Dr. Kennedy’s testimony. Prior to trial, the government made
available to the defense a copy of a report Dr. Kennedy had
prepared in April 1996 regarding Dr. Wells for the Kentucky
Board of Medical Licensure. The report detailed Dr.
Kennedy’s analysis of Dr. Wells’s records of prescriptions of
controlled substances and summarized Dr. Kennedy’s
conclusion that Dr. Wells had written numerous prescriptions
without adequately documenting the medical necessity of the
prescriptions. In addition, the government provided defense
counsel with documents reviewed by Dr. Kennedy that
showed the prescriptions Dr. Wells had written for Dillion’s
use, and a brief letter written by Dr. Kennedy in January 1998
which stated that Kennedy had reviewed both Dr. Wells’s file
on Dillion and the prescriptions written or ordered via
telephone in Dillion’s name. The letter clearly stated the
ultimate point of Dr. Kennedy’s testimony: “it is my opinion
that the prescriptions as to each of the counts in the
indictment are outside the scope of the professional practice
and not for a legitimate medical purpose.” Finally, the
content and basis of Dr. Kennedy’s testimony was the subject
of a substantial amount of pretrial discourse, including the
government’s relatively detailed response to Dr. Wells’s and
Dillion’s motion in limine to exclude Dr. Kennedy’s
testimony, and a hearing on the motion in which the
government stated that Dr. Kennedy would testify that Dr.
Wells’s prescriptions were outside the scope of medical
practice and not for any legitimate medical purpose.
Nos. 98-6010/6011 United States v. Wells, et al. 15
8Dr. Wells also argues that the district court must make Merriweather
findings for the prescriptions admitted as to the conspiracy count. He is
incorrect. As discussed, supra, Merriweather applies to evidence
admitted pursuant to Rule 404(b) and does not require special findings for
admission of non-Rule 404(b) evidence of a conspiracy.
9Wells argues that there was a “fatal variance” between counts seven
through twelve and the government’s proof at trial. This argument also
fails. A ‘variance’ occurs when an indictment remains unchanged, “‘but
the evidence at trial proves facts materially different from those alleged
in the indictment.’” United States v. Collins, 78 F.3d 1021, 1032 (6th Cir.
1996) (quoting United States v. Hathaway, 798 F.2d 902, 910 (6th Cir.
1986)). For an appellant to obtain a reversal due to a variance, he must
benefit that were not specifically charged in the indictment.
Prior to trial, the district court denied Dr. Wells’s motion for
a hearing to determine the admissibility of the prescriptions
pursuant to Merriweather. The court ruled that the
prescriptions were admissible as evidence of the conspiracy
alleged in count one and as Rule 404(b) evidence as to the
§ 843(a)(3) charges alleged in counts two through seven of
the original indictment. On appeal, Dr. Wells argues that the
district court failed to make a specific finding regarding the
admissibility of the 171 prescriptions pursuant to
Merriweather.8 Dr. Wells claims that some of the
prescriptions were legitimate and that the government simply
lumped together numerous prescriptions in order to
improperly overwhelm the jury.
Upon review, we find that the district court did not abuse
its discretion by admitting the prescriptions as acts in
furtherance of the conspiracy alleged in count one. See
Merriweather, 78 F.3d at 1078. Nor did the court err by
admitting the prescriptions as to counts two through seven, as
the evidence satisfies the three-step Merriweather analysis.
See id. at 1076-77. Dr. Wells’s claim fails.
C. Sufficiency of the Evidence
Both Dillion and Dr. Wells claim that there was insufficient
evidence to convict them of counts seven through twelve.9 In

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14 United States v. Wells, et al. Nos. 98-6010/6011
Prior to trial, the government moved to admit Exley’s
testimony. The court’s ruling is altogether unclear, but the
court appears to have granted the motion on the basis that it
was admissible to show Dr. Well’s specific intent as to the
conspiracy charge in count one, and to show his intent to aid
and abet Dillion in obtaining controlled substances by fraud
and deception, see 21 U.S.C. § 843(a)(3), the subject of the
charges in counts two through six. When the defense
objected to Exley’s testimony at trial, the court invoked Rule
404(b) to admit the evidence, finding that it showed Dr.
Wells’s intent “in this drug conspiracy.” The court then
found that the probative weight of the evidence outweighed
the possibility of any undue prejudice. The defendants did
not request a limiting instruction, and the court gave none to
the jury.
Our review of the district court’s admission of Rule 404(b)
evidence is comprised of three steps. See Johnson, 27 F.3d at
1190 (citing United States v. Gessa, 971 F.2d 1257, 1261-62
(6th Cir. 1992) (en banc)). First, we review for clear error the
district court’s finding that the prior act occurred. Id.
Second, we review de novo the court’s legal determination
that the evidence was admissible for a legitimate purpose. Id.
Third, we review for abuse of discretion the court’s finding
that the “other acts” evidence is more probative than
prejudicial. Id. Applying this analysis, we first find that the
district court did not clearly err in presuming that Dr. Wells’s
statement to Exley occurred. Further, although the district
court should have been more clear about the purpose for
which it admitted the testimony, it was admissible to show
Dr. Wells’s intent to conspire, see Merriweather, 78 F.3d at
1078, and to show that he intentionally -- and not unawares --
aided and abetted Dillion in obtaining controlled substances
by fraud or deception, see Johnson, 27 F.3d at 1192. Finally,
we find that the district court did not abuse its discretion in
finding that the probative value of the testimony was not
substantially outweighed by the danger of undue prejudice.
Dr. Wells also argues that the district court erred by
admitting evidence of 171 prescriptions he wrote for Dillion’s
Nos. 98-6010/6011 United States v. Wells, et al. 11
4Dr. Wells points to a comment the district judge made “in passing,”
Dr. Wells’s Br. at 15, when he ruled that the information provided by the
government satisfied the requirements of Rule 16. The judge seemed to
indicate that, if the case had been civil instead of criminal, the information
might not satisfy the requirements of Fed. R. Civ. P. 26. See Fed. R. Civ.
P. 26. Dr. Wells argues on appeal that the requirements of Rule 16 should
be construed at least as broadly as those of Fed. R. Civ. P. 26; and,
because the district judge indicated that the government’s disclosure
would not meet the requirements of Rule 26, the court essentially found
that the information provided by the government was insufficient. We
need not address the relative breadth of Rule 16 and Fed. R. Civ. P. 26
here, as it is clear from the record that the district judge concluded that the
government satisfied the requirements of Rule 16, and that is sufficient
for us to find that the court’s ruling was not an abuse of discretion.
5Boyd was Dillion’s former father-in-law. He was dead at the time
of trial.
In addition to knowing prior to trial the basis and general
content of Dr. Kennedy’s testimony, appellants had the
opportunity to voir dire and cross-examine Dr. Kennedy
extensively. That they may have disagreed with the content
of his testimony is immaterial for purposes of Rule 16. They
were on notice that Dr. Kennedy was going to testify that Dr.
Wells’s prescriptions for Dillion were outside the scope of
medical practice and were not for a legitimate medical
purpose, and they had a “fair opportunity” to refute this
testimony. See Fed. R. Evid. 16 advisory committee’s note to
1993 amendment. On the facts of this case, we hold that the
government satisfied the requirements of Rule 16 and that the
trial court did not abuse its discretion by admitting Dr.
Kennedy’s testimony.4
Dr. Wells and Dillion also argue that the district court erred
by allowing Drs. Hieronymus and Badrudduja to render
expert opinions regarding the treatment of Arlie Boyd5 even
though they had not been qualified as experts and had not
provided summary reports as required by Rule 16(a)(1)(E).
Prescriptions written by Dr. Wells in Boyd’s name but
intended for Dillion were the subject of counts seven through
twelve. Dr. Hieronymus, a general practitioner, saw Boyd as

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12 United States v. Wells, et al. Nos. 98-6010/6011
a patient between March 1991 and December 1995. Dr.
Badrudduja, a general surgeon, saw Boyd as a patient from
May 1994 through August 1997, and performed an operation
on Boyd in June 1994 for cancer of the colon. The testimony
of Drs. Hieronymus and Badrudduja established that Boyd
was cancer-free and that neither doctor prescribed medication
for Boyd during the period between September 1994 through
October 1995, when Dr. Wells prescribed controlled
substances in Boyd’s name but for Dillion’s use. Over
defendants’ objections, the district judge found that both
doctors testified as fact witnesses, and not as experts.
The district court did not abuse its discretion by admitting
the testimony as lay testimony. Drs. Hieronymus and
Badrudduja were treating physicians of Boyd, and they
testified to their first-hand observations and treatment of him.
See Richardson v. Consolidated Rail Corp., 17 F.3d 213, 218
(7th Cir. 1994) (stating that doctor is not an expert if his
testimony is based on observations made in course of
treatment, not acquired for purposes of trial, and based on
personal knowledge); Williams Enter., Inc. v. Sherman R.
Smoot Co., 938 F.2d 230, 234 (D.C. Cir. 1991) (stating that
a broker with specialized knowledge may offer opinion as lay
witness as long as he had personal knowledge of facts).
Because the doctors testified as fact rather than expert
witnesses, the government was not required to comply with
Fed. R. Crim. P. 16(a)(1)(E) as to the doctors’ testimony.
B. Admission of Rule 404(b) Evidence
Dr. Wells argues that the district court erred by admitting
“other acts” evidence in two instances. See Fed. R. Evid.
404(b). Dr. Wells first argues that the trial court committed
reversible error by permitting Wayne Exley, a Kentucky
pharmacist, to testify about a conversation he had with Dr.
Wells after the Kentucky Board of Medical Licensure stripped
Dr. Wells of his ability to prescribe controlled substances in
October 1995. Exley testified that Dr. Wells attempted to
“call in” a prescription for Dillion using the DEA registration
number of his brother, also a physician: “[Dr. Wells] said that
Nos. 98-6010/6011 United States v. Wells, et al. 13
6Fed. R. Evid. 404(b) provides: “Evidence of other crime, wrongs,
or acts is not admissible to prove the character of a person in order to
show action in conformity therewith.” However, the rule allows such
‘other acts’ evidence for other purposes, such as to show knowledge or
intent. Id. In determining whether to admit evidence under Rule 404(b)
for ‘other acts,’ the court must balance the probative value of the evidence
with the danger of undue prejudice in the manner required by Rule 403.
See Fed. R. Evid. 404(b) advisory committee’s note.
7Dr. Wells does not argue that the judge failed to give a Rule 404(b)
instruction. Even had Dr. Wells argued this issue on appeal, the
overwhelming evidence of the defendants’ guilt in this case would compel
us to conclude that the district judge’s failure to give the instruction was
harmless error. See United States v. Bilderbeck, 163 F.3d 971, 978 (6th
Cir.), cert. denied, Bilderbeck v. United States, 120 S. Ct. 114 (1999).
Ronnie Dillion was in pretty bad shape, and he asked me to
go ahead and fill a prescription for Lorcets and write it up as
[if] his brother Dr. Raymond Wells . . . had called it in.” Dr.
Wells objected to admission of the statement prior to trial and
again at trial.
On appeal, Dr. Wells argues that the district court should
have held a hearing to analyze the Exley statement pursuant
to this court’s ruling in United States v. Merriweather, 78
F.3d 1070 (6th Cir. 1996). In Merriweather, we outlined the
appropriate application of Rule 404(b).6 Merriweather, 78
F.3d at 1076-77. First, upon the defendant’s objection, the
government must identify the specific purpose for which it
offers the “other acts” evidence. Id. at 1076. Second, the
district court must determine whether the identified purpose
is material, or “in issue” in the case. Id. at 1076-77. Third,
the court must weigh the evidence under Rule 403 to
determine whether its probative value is substantially
outweighed by the danger of unfair prejudice. Id. at 1077.
Finally, the court must “‘clearly, simply, and correctly’
instruct the jury as to the specific purpose for which they [sic]
may consider the evidence.” Id. (quoting United States v.
Johnson, 27 F.3d 1186, 1194 (6th Cir. 1994)).7

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