NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

No. 17-2373 _____________

UNITED STATES OF AMERICA

v.

JEFFREY BADO, Appellant ______________

Appeal from the United States District Court for the Eastern District of Pennsylvania (District Court No. 2-15-cr-00037-001) District Judge: Hon. C. Darnell Jones, II ______________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) September 25, 2018 ______________

Before: McKEE, RESTREPO, and FUENTES, Circuit Judges.

(Opinion filed: March 1, 2019)

_______________________

OPINION _______________________

 This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not constitute binding precedent. McKEE, Circuit Judge.

Bado argues that the evidence that he illegally dispensed controlled substances

resulting in the death of Joseph Armstrong, his former patient, was insufficient. He also

argues there was insufficient evidence to convict him on each of the other drug

distribution counts, and that the District Court abused its discretion when it denied his

request to introduce the ex parte deposition of a defense witness. For the reasons that

follow, we will affirm.

I.1

“In reviewing a jury verdict for sufficiency of the evidence, ‘we must consider the

evidence in the light most favorable to the government and affirm the judgment if there is

substantial evidence from which any rational trier of fact could find guilt beyond a

reasonable doubt.’”2 “Under this particularly deferential standard, we ‘must be ever

vigilant . . . not to usurp the role of the jury by weighing credibility and assigning weight

to the evidence, or by substituting [our] judgment for that of the jury.’”3 Moreover, “we

review the evidence as a whole, not in isolation, and ask whether it is strong enough for a

rational trier of fact to find guilt beyond a reasonable doubt.”4

1 The District Court had original jurisdiction over the case pursuant to

. We have appellate jurisdiction to review the District Court’s final sentence under

. 2 United States v. Benjamin,

(3d Cir. 2013) (quoting United States v. Brown,

(3d Cir. 1993)). 3 United States v. Caraballo-Rodriguez,

(3d Cir. 2013) (en banc) (quoting United States v. Brodie,

(3d Cir. 2005)) (ellipses and brackets in original). 4

(quoting United States v. Boria,

(3d Cir. 2010)).

2 The evidence here was sufficient to allow a jury to conclude beyond a reasonable

doubt that Bado prescribed oxycodone and methadone to Armstrong 24 days before his

death. Blood samples obtained the day after Armstrong’s death confirmed the presence of

oxycodone and methadone in Armstrong’s system at the time of his death. Two expert

witnesses described at length why Armstrong’s death was caused by the ingestion of

oxycodone and methadone.

Defense counsel thoroughly cross-examined both experts and each doctor remained

unshaken in his respective medical conclusion that the prescription pills, and not cocaine

use or coronary disease, were the “but for” cause of Armstrong’s death. Consistent with

each other, they explained how a cocaine-induced death would present differently than

Armstrong’s death did. Each doctor’s explanation of the manner by which Armstrong

died was corroborated by Armstrong’s common law wife’s testimony regarding her

observations of Armstrong’s condition in the hours leading up to his death.

There was therefore ample evidence for the jury to conclude that but for his

consumption of the oxycodone and methadone that Bado prescribed, Armstrong would

still be alive.

II.

Similarly, Bado contends that there was insufficient evidence to support his

conviction that he illegally distributed hundreds of opioid prescriptions. Bado particularly

challenges the summary nature of Dr. Thomas’s testimony.

Physicians are subject to criminal liability “when their activities fall outside the

3 usual course of professional practice.”5 After reviewing all 89 patient files, Dr. Thomas

testified to a reasonable degree of medical certainty that each of the prescriptions listed in

the superseding indictment were issued outside the usual course of professional practice

and were medically unnecessary. Dr. Thomas reviewed nine patient files in detail and

provided extensive background information about the acceptable medical practices for

pain management. While Dr. Thomas testified in summary fashion about the remaining

patients, he identified the illegitimate factors present in each case.

“We are not to act as a thirteenth juror” and must instead consider whether a

rational juror could have found guilt beyond a reasonable doubt.6 “[T]he jury’s verdict

must be upheld as long as it does not ‘fall below the threshold of bare rationality.’”7

Despite Bado’s assertions to the contrary, Dr. Thomas’s testimony was sufficient to allow

a rational juror to conclude beyond a reasonable doubt that Bado illegally distributed

controlled substances.8

III. In addition to attacking the sufficiency of his convictions, Bado argues that the

District Court abused its discretion by precluding him from introducing the deposition

testimony of a defense witness. “We review the District Court’s evidentiary rulings

5 United States v. Moore,

(1975). 6 Caraballo-Rodriguez,

. 7

(quoting Coleman v. Johnson,

(2012)). 8 In denying Bado’s motion for a new trial, the District Court astutely observed the fact that, “the jury found [Bado] not guilty of thirteen discrete counts within the Superseding Indictment speaks to the jury’s dedication to unbiased assessment of the evidence supporting each individual criminal charge.” United States v. Bado, No. 15-cr-37,

, at *5 (E.D. Pa. May 30, 2017).

4 principally for abuse of discretion.”9 “We will not disturb a trial court’s exercise of

discretion unless ‘no reasonable person would adopt the district court’s view.’”10

Approximately one month before Thanksgiving, the District Court informed the

jury that the court would not be sitting on the Wednesday before or the Friday after

Thanksgiving. After court ended on the Tuesday before Thanksgiving, defense counsel

informed the government that one of Bado’s former patients who wanted to testify was

unavailable the following week but was available for a deposition the next day, the

Wednesday before Thanksgiving. However, counsel for the government was not available

then. Defense counsel filed a motion for an order authoring a deposition for use at trial,

“nunc pro tunc.” Defense counsel then conducted an ex parte deposition of the patient

even though the court had not yet ruled on the motion.

When court resumed the Monday after Thanksgiving, defense counsel requested

that the Court admit the deposition testimony. The District Court confirmed that Bado

began presenting his defense more than a month prior and defense counsel had not

subpoenaed the witness for trial. In denying the request to read the deposition testimony

into the record, the Court noted that “it is not the fault of the Government, it is not the

fault of the Court, it is nobody’s fault but the witness who failed to respond, because

clearly, that witness had knowledge to be here.”11 Bado’s attempt to argue that the

9 Stecyk v. Bell Helicopter Textron, Inc.,

(3d Cir. 2002). 10

(quoting Oddi v. Ford Motor Co.,

(3d Cir. 2000)).

.

5 District Court thereby abused its discretion can best be described as frivolous.12

IV. For the foregoing reasons, we will affirm the District Court’s judgment of

conviction and sentence.

12 Defense counsel attempts to justify the ex parte deposition while the motion was still pending by relying on the provisions of FED. R. CRIM. P. 15(a)(1) which allows a party to take a deposition to preserve testimony for trial. However, on this record, we will not conclude that the District Court abused its discretion in denying counsel’s last minute “Hail Mary” attempt to admit the ex parte deposition of this witness.

6