UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-4158

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

FRANK CRAIG PURPERA, JR.,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of Virginia, at Roanoke. Elizabeth Kay Dillon, District Judge. (7:17-cr-00079-EKD-1)

Argued: October 30, 2020 Decided: February 5, 2021

Before DIAZ, THACKER, and HARRIS, Circuit Judges.

Affirmed by unpublished per curiam opinion. Judge Diaz wrote an opinion concurring in part and dissenting in part.

ARGUED: Blair Tamara Westover, LAW OFFICES OF BEAU B. BRINDLEY, Chicago, Illinois, for Appellant. Laura Day Rottenborn, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee. ON BRIEF: Beau B. Brindley, LAW OFFICES OF BEAU B. BRINDLEY, Chicago, Illinois, for Appellant. Thomas T. Cullen, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit.

2 PER CURIAM:

Dr. Frank Purpera (“Appellant”) is a vascular surgeon who owned a medical

practice in Blacksburg, Virginia, and was registered with the Drug Enforcement

Administration (“DEA”) to administer controlled substances. Between April 21, 2014, and

August 4, 2016, Appellant purchased nearly 10,000 tablets of various controlled substances

from Henry Schein, Inc., a medical supply distribution company (“Henry Schein”). On

December 14, 2017, Appellant was charged with 67 counts of obtaining these controlled

substances by fraud, in violation of

(a)(3) (Counts 1–68); 1 one count of

failing to maintain required records related to their disposition, in violation of

(a)(4)(A) (Count 69); and one count of making a false statement to a DEA agent

investigating Appellant’s fraudulent activity, in violation of

(a)(2) (Count

70).

Following trial, a jury found Appellant guilty on all counts. Appellant moved for a

judgment of acquittal, which the district court granted with respect to Count 21 but

otherwise denied. 2 At sentencing, the district court calculated an advisory United States

Sentencing Guidelines (“Guidelines”) range of six to 12 months and imposed an above-

Guidelines sentence of 20 months of imprisonment.

1 Counts 1–68 of the indictment allege violations of

(a)(3), but the indictment does not include a Count 27. 2 The United States does not appeal the district court’s grant of Appellant’s motion for acquittal with respect to Count 21.

3 Appellant now claims that his convictions should be vacated for a multitude of

reasons. He asserts (1) his trial counsel labored under a conflict of interest; (2) the district

court erroneously refused two of his requested jury instructions; (3) the district court

erroneously admitted expert testimony that contained impermissible legal conclusions; and

(4) his convictions were not supported by sufficient evidence. Additionally, Appellant

contends that his sentence is procedurally and substantively unreasonable. For the reasons

that follow, we find each of these claims to be without merit and affirm Appellant’s

convictions and sentence.

I.

A.

From 2014 to 2016, Appellant purchased thousands of tablets of oxycodone

(Percocet), hydrocodone (Lortab), alprazolam (Xanax), diazepam (Valium), and tramadol

(Ultram) -- all controlled substances under federal law -- from Henry Schein. Pursuant to

the company’s policy, before completing these purchases, Appellant was required to

submit purchase order forms that contained questions about “the approximate percentage

of patients that leave [his] office with controlled substances daily”; “the approximate

percentage of patients that are treated in [his] office with controlled substances daily”; and

whether he uses “any of the controlled drug items [he] order[s] to treat family members or

4 friends.” 3 J.A. 223–24. 4 At trial, the United States introduced evidence demonstrating that

the purchase order forms Appellant submitted to Henry Schein contained inaccurate

answers to these questions. For example, Appellant stated in his purchase order forms that

he did not administer the drugs he purchased from Henry Schein to family members or

friends, but in a June 23, 2017 letter to the Virginia Department of Health Professions,

Appellant stated that the vast majority of those controlled substances were given to his

wife, Rebecca Mosig.

At Appellant’s trial, Shaun Abreu, a senior manager for Henry Schein, testified that

the company requires prospective purchasers of its controlled substances to submit

purchase order forms because the answers to the questions contained in the forms are

important to the company when it decides whether or not to sell controlled substances to

the prospective purchaser. Abreu explained that Henry Schein’s policy is to only sell

controlled substances to purchasers who will prescribe and administer them in compliance

with all relevant “state medical board regulations,” and the answers to the questions

contained in the purchase order forms help the company determine if a potential purchaser

will do so. J.A. 307. Abreu also testified that the purchase order forms must be “filled out

3 At some point, Henry Schein removed the question about treating friends from its purchase order forms. However, the purchase order form submitted by Appellant in April 2014 contained that question. 4 Citations to the “J.A.” refer to the Revised Joint Appendix filed by the parties in this appeal.

5 and signed by” a party who is registered to administer controlled substances with the DEA.

.

B.

Appellant first caught the attention of federal law enforcement in August 2016,

when a DEA database revealed that he purchased more controlled substances than any

other physician in western Virginia in 2015, and more than all but one in 2016. Further

red flags were raised when the database revealed that, although Appellant purchased this

high volume of controlled substances, he only prescribed them to two individuals: his wife

and his mother.

The DEA’s investigation of Appellant began in earnest on August 26, 2016, when

DEA Investigator Mark Armstrong visited Appellant’s office and questioned him about his

purchase of oxycodone, alprazolam, and diazepam from Henry Schein. According to

Investigator Armstrong’s trial testimony, he asked Appellant if he maintained records

related to the disposition of those drugs, and Appellant responded that he maintained such

records in two different places: “in his patient file[s],” and in a separate “dispensing kind

of log.” J.A. 179. But when Investigator Armstrong then asked to review those records,

Appellant quickly admitted “there wasn’t a dispensing log.”

A subsequent search

warrant executed at Appellant’s office revealed that there were no records in Appellant’s

patient files related to any of the drugs that he purchased from Henry Schein.

C.

Grand jury proceedings began in December 2017, and Kayla Castleberry, a former

employee of Appellant, was called to testify. The day before her scheduled testimony,

6 Castleberry received text messages from Carla Craft, a then-current employee of Appellant

who was also subpoenaed to testify before the grand jury. Throughout the text message

exchange, Craft discouraged Castleberry from testifying before the grand jury without first

securing legal representation. In one text, Craft wrote, “John is spazzing about you going

alone tomorrow,” and explained, “John is like freaked out that you’re walking into a lions

[sic] den.” United States’ Resp. in Opp’n to Def.’s Renewed Mot. to Dismiss Indictment

for Prosecutorial Misconduct at 5, United States v. Purpera, No. 7:17-cr-79 (W.D. Va. Dec.

14, 2017; filed Jan. 26, 2018), ECF No. 88-1 [hereinafter United States’ Resp. in Opp’n to

Mot. to Dismiss Indictment]. Castleberry provided screenshots of these text messages to

Robert Slease, a Special Agent with the United States Department of Health and Human

Services who was working with the DEA task force investigating Appellant. Agent Slease

interviewed Castleberry about the text messages. Castleberry said the conversation made

her feel like she was “kind of being forced or coerced” to not testify. J.A. 56. Agent Slease

suspected that John Brownlee, Appellant’s lead trial counsel, was the “John” alluded to in

Craft and Castleberry’s text exchange. One week later, the DEA issued an administrative

subpoena for the phone records related to the text message exchange. One of the phone

numbers included in the subpoena belonged to Brownlee.

Upon learning of the DEA’s administrative subpoena of his lead counsel’s phone

records, Appellant moved to dismiss the indictment, alleging prosecutorial misconduct and

that the subpoena was an intentional and prejudicial invasion of the attorney-client

privilege. The United States responded that there was no prosecutorial misconduct because

the Government had subpoenaed the phone records not to learn the substance of

7 confidential attorney-client communications, but rather for the “very limited and legitimate

purposes arising from the need to determine whether [Brownlee] was contacting a

subpoenaed witness and encouraging her not to testify.” United States’ Resp. in Opp’n to

Mot. to Dismiss Indictment at 1, ECF No. 88. 5 Appellant dismissed this explanation,

asserting, “[T]here was no bona fide investigation into Mr. Brownlee.” Dr. Frank Purpera’s

Reply in Supp. of His Renewed Mot. to Dismiss at 1–6, United States v. Purpera, No. 7:17-

cr-79 (W.D. Va. Dec. 14, 2017; filed Jan. 27, 2018), ECF No. 92 [hereinafter Appellant’s

Reply in Supp. of Mot. to Dismiss Indictment]. On January 29, 2018, the district court

held a pre-trial hearing on Appellant’s motion to dismiss the indictment. The court

ultimately denied the motion, finding no Government misconduct and no prejudice to

Appellant. Appellant does not appeal this ruling, but now claims, through different

counsel, that the DEA’s investigation into Brownlee created a conflict of interest.

II.

A.

Conflict of Interest

Appellant claims his representation at trial was tainted by a conflict of interest

stemming from the fact that his prosecution paralleled the DEA’s investigation of his lead

trial counsel, Brownlee. The United States concedes that these circumstances caused

5 The United States made clear at oral argument that the phone records were searched pursuant to an administrative subpoena that was issued unbeknownst to the United States Attorney’s office. See Oral Argument at 19:00–21:05, United States v. Purpera, No. 19-4158 (4th Cir. Nov. 2, 2020), https://www.ca4.uscourts.gov/oral- argument/listen-to-oral-arguments.

8 Brownlee to labor under a conflict of interest. However, the parties dispute whether

Appellant validly waived the conflict and, if not, whether it was sufficiently significant as

to warrant the reversal of Appellant’s convictions.

The right to legal representation “that is free from conflicts of interest” is a

“necessary corollary to” the right to effective assistance of counsel guaranteed by the Sixth

Amendment. Fullwood v. Lee,

, 688–89 (4th Cir. 2002) (internal quotation

marks omitted). Like other ineffective assistance of counsel claims, claims that a

defendant’s representation at trial was tainted by a conflict of interest “present mixed

questions of law and fact that we review de novo.” United States v. Dehlinger,

(4th Cir. 2014) (internal quotation marks omitted). Generally, to prevail on a

conflict claim, a defendant must “establish that (1) an actual conflict of interest (2)

adversely affected his lawyer’s performance.”

. To determine whether a conflict

adversely affected a lawyer’s performance, we apply a three-part test originally articulated

by the Eleventh Circuit in Freund v. Butterworth,

(11th Cir. 1999) (en

banc). See Mickens v. Taylor,

(4th Cir. 2001) (en banc) (adopting the

Freund test). The Mickens court described that test as follows:

First, the [defendant] must identify a plausible alternative defense strategy or tactic that his defense counsel might have pursued. Second, the [defendant] must show that the alternative strategy or tactic was objectively reasonable under the facts of the case known to the attorney at the time of the attorney’s tactical decision. . . . Finally, the [defendant] must establish that the defense counsel’s failure to pursue that strategy or tactic was linked to the actual conflict.

9 If, however, a case involves what the Supreme Court has described as a “per se”

violation of the Sixth Amendment, a showing of adverse effect is not necessary and the

underlying conviction must be reversed. See United States v. Cronic,

, 659–

60 (1984). The Supreme Court has recognized only three categories of per se violations of

the Sixth Amendment: (1) “the complete denial of counsel;” (2) “counsel entirely fail[ing]

to subject the prosecution’s case to meaningful adversarial testing;” and (3) where “the

likelihood that any lawyer, even a fully competent one, could provide effective assistance

is so small that a presumption of prejudice is appropriate.” Id.

1.

We begin by assessing whether Appellant validly waived Brownlee’s conflict of

interest. At the pre-trial hearing, the district court addressed the possibility that the

administrative subpoena of Brownlee’s phone records created a conflict of interest in his

representation of Appellant. The district court accorded Appellant roughly 12 minutes to

discuss with his attorneys -- including Brownlee -- whether he wanted to continue his

defense with the same counsel. Following that discussion, the court inquired as to whether

Appellant would “voluntarily, without [the court] requiring it, be willing to . . . waive[] any

conflict.” J.A. 138. Appellant responded, “[T]his is my team that I hired. I’m innocent. I

would like to move forward and get my life together.” Id. The court then asked Appellant

whether his counsel had explained to him “that there might be a potential for a conflict of

interest” stemming from the subpoena of Brownlee’s phone records, and whether he

nonetheless was “still willing to go forward with [the same] counsel . . . representing” him.

Id. at 138–39. Appellant answered both questions in the affirmative.

10 We conclude that, despite the district court’s colloquy, Appellant did not validly

waive Brownlee’s conflict of interest. To validly waive a conflict of interest, a defendant

must possess a “knowledge of the crux of the conflict and an understanding of its

implications.” United States v. Brown,

(4th Cir. 2000) (emphasis in

original). While it is clear Appellant was aware of the potential conflict of interest, we are

not convinced that he was aware of its implications. For starters, the district court never

explicitly confirmed that Appellant understood that Brownlee’s conflict could negatively

impact the quality of his legal representation. Furthermore, because Brownlee did not

believe that the witness tampering investigation was legitimate, and because defense

counsel stated that they saw “no issue with regard to any conflict or potential conflict,”

J.A. 136, it is plausible that those implications were never adequately explained to

Appellant during his 12-minute conversation with his attorneys. Finally, we reject the

United States’ argument that Appellant must have understood the crux of the conflict as a

result of his being present for the entire pre-trial hearing. The bulk of that hearing was

devoted to determining whether the administrative subpoena of Brownlee’s phone records

constituted prosecutorial misconduct, not whether it created a serious conflict of interest. 6

6 Tellingly, the district court -- which conducted the colloquy regarding the conflict of interest -- did not find Appellant’s waiver to be intelligent and knowing. The district court was concerned that Appellant was never “advised specifically about the possible implications of the conflict.” J.A. 634.

11 2.

Because Appellant did not validly waive Brownlee’s conflict of interest, we now

must determine whether the conflict was so significant as to require the reversal of

Appellant’s convictions. Reversal is required if the conflict (1) constitutes a per se

violation of the Sixth Amendment; 7 or (2) adversely affected Brownlee’s representation of

Appellant. Here, Appellant cannot establish that reversal is required under either approach.

a.

Appellant has been represented by counsel at every stage of his criminal

proceedings. Furthermore, it cannot be said that Appellant’s lawyers “entirely fail[ed] to

subject the prosecution’s case to meaningful adversarial testing,” Cronic,

,

as defense counsel cross-examined each of the United States’ trial witnesses and filed, inter

alia, a motion to dismiss the indictment, motions to exclude key evidence and witnesses, a

motion for a new trial, and a motion for judgment of acquittal. Therefore, to establish a

per se violation of the Sixth Amendment, Appellant must demonstrate that Brownlee’s

conflict of interest made “the likelihood that any lawyer, even a fully competent one, could

provide effective assistance [] so small that a presumption of prejudice is appropriate.”

. “This is an extremely high showing for a criminal defendant to make,” Brown v.

French,

(4th Cir. 1998), and we have been careful to not “broaden the

7 At oral argument, Appellant argued that if a conflict of interest results in a per se violation of the Sixth Amendment, it may not be waivable in the first place. Because we conclude that Appellant did not validly waive Brownlee’s conflict, we need not decide whether that is an accurate statement of the law in the Fourth Circuit.

12 per-se prejudice exception to Strickland,” Glover v. Miro,

(4th Cir.

2001).

In arguing that Brownlee’s conflict of interest meets this demanding standard and

requires per se reversal of his convictions, Appellant urges us to adopt the following

position, which he describes as a “basic rule” that has been “recognized by the Second

Circuit”: that “un-waived conflicts of interest[] stemming from an investigation into trial

counsel for conduct related to the defendant’s case are per se reversible and do not require”

a showing of adverse effect. 8 Appellant’s Reply Br. 11–12.

To the extent the Second Circuit recognizes a “basic rule” concerning per se reversal

based on conflicts of interest, Appellant miscomprehends it. In the Second Circuit,

automatic reversal of a conviction is required when a defendant establishes that his attorney

labored under a so-called “‘per se’ conflict of interest, i.e., one that does not as a matter of

law admit of harmless-error analysis.” Armienti v. United States,

(2d

Cir. 2000). There are only two situations that give rise to a per se conflict of interest:

“where trial counsel is not authorized to practice law,” and where trial counsel “is

implicated in the very crime for which his or her client is on trial.” Id.; see also Waterhouse

v. Rodriguez,

(2d Cir. 1988) (refusing to expand automatic reversal for

conflicts of interest beyond these two situations).

8 Appellant does not claim that the Fourth Circuit has adopted a “per se reversal” rule for conflicts of interest stemming from a government agency’s parallel investigation of an attorney and his client. We decline to announce such a rule in this case.

13 Even if we were to adopt this approach, Brownlee’s conflict of interest would not

warrant per se reversal of Appellant’s convictions. The Second Circuit has explained that

the existence of a per se conflict hinges on “the similarity of counsel’s activities to [the

client]’s schemes and the links between them.” United States v. Cancilla,

(2d Cir. 1984). Applying this framework, the Second Circuit has found a per se

conflict of interest in a case where a defense attorney was believed to be participating in

insurance fraud schemes that were similar to those for which his clients were on trial, see

, and in a case where a defendant was on trial for his participation in a heroin

smuggling scheme and there was evidence demonstrating “that the defense counsel was

. . . involved in heroin trafficking of his own,” United States v. Fulton,

(2d

Cir. 1993). In those cases, the substantial similarity between the attorneys’ misconduct

and the clients’ misconduct is clear. In contrast, the potential witness tampering that led

the DEA to subpoena Brownlee’s phone records and the fraudulent behavior underlying

Appellant’s criminal convictions are completely different types of misconduct. For that

reason, even under the Second Circuit approach that Appellant urges us to adopt, per se

reversal of Appellant’s convictions would be inappropriate, and Appellant would need to

demonstrate that Brownlee’s conflict of interest adversely affected his representation.

b.

Appellant posits two different ways in which he believes Brownlee’s conflict of

interest adversely affected his representation. He argues that because of the conflict,

Brownlee (1) failed to call Appellant’s wife, Rebecca Mosig, as a witness in his case-in-

chief; and (2) failed to vigorously cross-examine Carla Craft, one of the witnesses for the

14 United States. Even assuming that these are plausible alternative defense tactics 9 that were

objectively reasonable at the time of trial, Appellant cannot establish adverse effect under

Freund because he has not shown that Brownlee’s failure to pursue those tactics was in

any way linked to his conflict of interest.

Appellant attempts to establish a link between Brownlee’s conflict of interest and

the decisions not to call Rebecca Mosig as a witness and vigorously cross-examine Carla

Craft by arguing that pursuing these tactics “was inherently in conflict with” Brownlee’s

“other loyalties or interests.” United States v. Nicholson,

(4th Cir. 2010)

(internal quotation marks omitted). In Appellant’s view, being the subject of a witness

tampering investigation made Brownlee fearful of angering the DEA and caused him to

labor “under a conflict that provided him with a personal incentive to pull his punches.”

Appellant’s Br. 29. Appellant concludes that any decision by Brownlee to pursue a less

aggressive defense strategy -- such as not calling Rebecca Mosig as a witness or failing to

vigorously cross-examine Carla Craft -- was a manifestation of that fear and was

“necessarily” linked to the conflict, “even if only subconsciously.” Id. at 16, 29.

We do not doubt that a federal law enforcement agency investigating a defense

attorney while simultaneously investigating his client can create a serious conflict of

interest. Furthermore, we are sympathetic to Appellant’s concerns that an attorney who

finds himself in such a position may feel compelled to defend his client less vigorously.

9 Brownlee’s co-counsel cross-examined Craft at trial, so it is not clear that Brownlee cross-examining Craft is a plausible alternative defense tactic.

15 However, the facts of this case simply do not bring these concerns to fruition. It is clear

from defense counsel’s filings -- especially those related to the motion to dismiss for

prosecutorial misconduct -- that Brownlee did not believe that he was the target of a bona

fide federal investigation or that he faced any criminal exposure. 10 Instead, Brownlee

viewed the purported investigation as an attempt by the United States to access confidential

attorney-client information. Because Brownlee did not believe that he was a target of a

legitimate criminal investigation, it was not inherently against his personal interest to

engage in an aggressive defense of Appellant.

Additionally, counsel for the United States explained at oral argument that it was

the DEA, not the United States Attorney’s office, that issued the administrative subpoena

that led to the production of Brownlee’s phone records. See Oral Argument at 19:00–

21:05, United States v. Purpera, No. 19-4158 (4th Cir. Nov. 2, 2020),

https://www.ca4.uscourts.gov/oral-argument/listen-to-oral-arguments. Even if this

subpoena made Brownlee wary of angering the DEA, it does not necessarily follow that he

would feel incentivized to pull his punches when litigating Appellant’s case.

10 See Appellant’s Reply in Supp. of Mot. to Dismiss Indictment at 2 (criticizing the DEA’s decision to open an obstruction of justice investigation based on Brownlee’s recommendation that a grand jury witness secure legal representation as “an extraordinary position”), 3 (stating that it “is not believable” that the DEA subpoenaed Brownlee’s phone records pursuant to an “obstruction of justice investigation into his conduct”), 4 (asserting that “there was no bona fide investigation into Mr. Brownlee” and that there was “no evidence” that the decision was made to investigate Brownlee for potential obstruction of justice), 5 (claiming that “the government had no basis for the subpoena in a new or ongoing investigation”).

16 Finally, the idea that Brownlee was pulling punches in order to appease the DEA is

not supported by the record. The district court docket demonstrates that Appellant’s trial

counsel -- including Brownlee -- pursued an aggressive litigation strategy. Brownlee

himself filed several important pre-trial and post-trial motions after learning that the DEA

had subpoenaed his phone records as part of its witness tampering investigation, including

a motion to exclude expert testimony, motion for judgment of acquittal, and motion for a

new trial. If Brownlee was indeed pulling punches in order to appease the DEA, it would

not make sense for him to file those motions, but stop short of calling Rebecca Mosig as a

witness or vigorously cross-examining Carla Craft.

B.

Jury Instructions

Appellant claims the district court erred by refusing two of his requested jury

instructions -- one related to Counts 1–68 (the acquiring controlled substances by fraud

charges), and one related to Count 69 (the failing to maintain required records charge). We

review a district court’s decision to refuse a proposed jury instruction for abuse of

discretion. See United States v. McLaurin,

, 378–79 (4th Cir. 2014).

However, “we conduct a de novo review of any claim that jury instructions incorrectly

stated the law.”

.

1.

The district court instructed the jury that in order to find Appellant “guilty on each

of the 67 counts in Counts 1 through 68,” the United States “must prove each of the

following beyond a reasonable doubt:” (1) Appellant “acquired or obtained possession of

17 a controlled substance”; (2) Appellant “did so by fraud, forgery, deception, subterfuge, or

material representation”; and (3) Appellant “acted knowingly or intentionally.” J.A. 586.

The jury instructions also included definitions for several key words, such as “fraud,”

“misrepresentation,” and “material.”

Appellant argues that the district court’s instructions incorrectly stated the law of

(a)(3) because they did not include a but-for causation requirement linking

Appellant’s false or misleading statements to his actual acquisition of the controlled

substances. Specifically, he asserts that the district court erred by not issuing the following

instruction:

The misrepresentation, fraud, forgery, deception, or subterfuge must be an actual cause of how [Appellant] acquired or obtained possession of the controlled substance. If he still would have acquired or obtained possession regardless of the misrepresentation, fraud, forgery, deception, or subterfuge, then [the United States] has not proved [the] third element [of Counts 1–68].

Appellant’s Br. 31–32.

Appellant’s argument necessarily assumes that but-for causation is an element of

(a)(3). The Fifth and Eighth Circuits have recognized but-for causation as an

element of § 843(a)(3), 11 and the Sixth Circuit has assumed, without deciding, that it is an

element. See United States v. Bass,

(5th Cir. 1974), overruled on other

grounds by United States v. Lyons,

(5th Cir. 1984); United States v. Wilbur,

11 The Third Circuit has also reached this conclusion, but in an unpublished decision. See United States v. Adade,

(3d Cir. 2013).

18

(8th Cir. 1995); United States v. Callahan,

(6th Cir.

2015). The Fourth Circuit has never squarely addressed whether this statute contains a but-

for causation requirement, and we need not do so today. Even assuming, as the Sixth

Circuit did in Callahan, that it does, we conclude that the district court’s jury instructions

were not in error.

When reviewing whether jury instructions correctly stated the law, “we do not view

a single instruction in isolation; rather we consider whether taken as a whole and in the

context of the entire charge, the instructions accurately and fairly state[d] the controlling

law.” United States v. Jefferson,

(4th Cir. 2012). The district court’s

instructions for Counts 1–68, when viewed as a whole, conveyed to the jury that it was

required to find a causal link between Appellant’s fraudulent purchase order forms and

Henry Schein’s decision to sell him controlled substances. The jury was instructed that it

needed to find, beyond a reasonable doubt, that Appellant acquired controlled substances

“by fraud, forgery, deception, subterfuge, or material misrepresentation.” J.A. 586

(emphasis supplied). The word “by” signaled to the jury that it had to find that Appellant

acquired the controlled substances because of his fraud or misrepresentations. See By,

Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/by (last

visited Dec. 15, 2020) (defining “by” as “through the agency or instrumentality of”).

Additionally, as part of its definition of the word “material,” the court explained that the

jury “must determine whether [an untrue] statement was one that a reasonable person might

have considered important in making his or her decision.” J.A. 587–88. This language

reiterated to the jury that it was necessary to evaluate more than simply whether

19 Appellant’s statements were untrue; it also needed to consider whether the statements were

likely to influence Henry Schein when the company was deciding whether to sell controlled

substances to Appellant.

2.

Count 69 charges Appellant with knowingly and intentionally omitting material

information from a report or record required to be kept, in violation of

(a)(4)(A). This charge stems from Appellant’s failure to maintain a dispensing log

or other documentation showing his disposition of controlled substances. A medical

practitioner who regularly administers controlled substances is ordinarily required to

maintain such records pursuant to federal regulations. See

(b). However,

there is an exception to this record-keeping requirement that applies to practitioners who,

inter alia, administer controlled substances “in the lawful course of professional practice.”

§ 1304.03(d). 12

Appellant asserts that the district court’s instructions with respect to Count 69 were

flawed because the court did not instruct the jury that a medical practitioner acts within the

lawful course of professional practice if he acts in good faith. Specifically, Appellant

argues that the district court erred by refusing the following instruction:

If a physician prescribes or administers a drug in good faith, then he has done so within the lawful course of professional practice. A physician prescribes or administers a drug in good

12 This exception also requires that the medical practitioner not charge his patients for the controlled substances. However, in this appeal, the primary issue with respect to the exception is whether Appellant administered controlled substances in the lawful course of professional practice.

20 faith in medically treating a patient when he does so for a legitimate medical purpose in the usual course of medical practice. Good faith means good intentions and the honest exercise of best professional judgment as to the patient’s needs. It means that the doctor acted in accordance with (what he reasonably believed to be) the standard of medical practice generally recognized and accepted in the United States.

Appellant’s Br. 36.

A district court’s refusal to provide a requested instruction is an abuse of discretion

“only if the instruction: (1) was correct; (2) was not substantially covered by the court’s

charge to the jury; and (3) dealt with some point in the trial so important, that failure to

give the requested instruction seriously impaired the defendant’s ability to conduct his

defense.” United States v. Savage,

(4th Cir. 2018).

The district court did not abuse its discretion by refusing Appellant’s proposed good

faith instruction because the instruction was not “correct.” To begin with, Appellant does

not point to any case that has recognized good faith as a defense to a § 843(a)(4)(A) charge,

and we cannot find one. Appellant also argues that the good faith defense should be

recognized in this case because it has been recognized in cases where physicians are

charged with distributing controlled substances in violation of

. But

Appellant’s proposed instruction is an inaccurate statement of even the § 841 good faith

defense. We have made clear -- as has “every [other] court to specifically consider the

question” -- that the good faith standard set out in those cases’ jury instructions “must be

an objective one.” United States v. Hurwitz,

(4th Cir. 2006). Here,

Appellant proposed a subjective -- and therefore legally incorrect -- instruction on the good

faith defense.

21 In Hurwitz, we affirmed the district court’s refusal of a proposed good faith

instruction because, by defining good faith as “the doctor act[ing] according to what he

believed to be proper medical practice,” it “clearly set[] forth a subjective standard.”

(emphasis in original). Appellant’s proposed good faith instruction is similar

to the one we rejected in Hurwitz. See

Like the Hurwitz instruction, Appellant’s

proposed instruction permits a doctor “to decide for himself what constitutes proper

medical treatment,” thereby setting forth a standard for good faith that is entirely

subjective.

Appellant attempts to justify his proposed instruction by arguing that it is

similar to the good faith instruction approved by the Sixth Circuit in United States v.

Voorhies,

(6th Cir. 1981), a case we cited favorably in Hurwitz. See

. We are not persuaded. The instruction in Voorhies defined good faith as “an

observance of conduct in accordance with what the physician should reasonably believe to

be proper medical practice.”

(emphasis supplied). That definition of good

faith is meaningfully different from one that is based on what the physician actually

believed. A jury tasked with assessing what a physician should have believed must apply

an objective standard. In contrast, determining what a doctor actually believed requires a

jury to assess the doctor’s subjective point of view.

C.

Expert Witness Testimony

Appellant next claims the district court erroneously permitted the United States’

expert witness, Dr. John Burton, a physician and Chair of Emergency Medicine at the

Carilion Clinic in Roanoke, Virginia, to opine as to legal conclusions which Appellant

22 asserts Dr. Burton was not qualified to make. The United States introduced Dr. Burton’s

testimony as part of its effort to establish beyond a reasonable doubt that Appellant did not

qualify for the exception to

(a)(4)(A)’s record-keeping requirement. As

explained previously, this exception applies to medical practitioners who, inter alia,

administer controlled substances “in the lawful course of professional practice.”

(d).

We review the admission of expert testimony for abuse of discretion. See United

States v. Landersman,

(4th Cir. 2018). It is generally an abuse of

discretion for the district court to admit “opinion testimony that states a legal standard or

draws a legal conclusion by applying law to the facts.” United States v. McIver,

(4th Cir. 2006). However, we have cautioned, “The line between a permissible

opinion on an ultimate issue and an impermissible legal conclusion is not always easy to

discern,” and “drawing that line requires a case-specific inquiry of the charges, the

testimony, and the context in which it was made.” United States v. Campbell,

(4th Cir. 2020).

We find no abuse of discretion in the admission of Dr. Burton’s testimony. In this

case, whether Appellant qualified for the exception to the record-keeping requirement

turned on whether he administered controlled substances in the lawful course of

professional practice. Dr. Burton never opined as to the legality or illegality of Appellant’s

conduct. In fact, the district court ordered that his testimony “stay[] away from the words

‘lawful’ and ‘legal’” because he “isn’t a legal expert.” J.A. 471–72. Rather, Dr. Burton’s

testimony primarily consisted of his opinions that Appellant’s conduct fell “outside the

23 usual course of professional practice.”

(emphasis supplied). In McIver, we

held that similar expert testimony, that is, a physician’s opinion that a defendant’s conduct

“was outside the legitimate practice of medicine,” did not contain impermissible legal

conclusions because the language used by the witness fell “within the limited vernacular

that is available to express whether a doctor acted outside the bounds of [] professional

practice.”

. The same is true of Dr. Burton’s testimony. Therefore,

we affirm the admission of Dr. Burton’s expert testimony.

D.

Motion for Judgment of Acquittal

Appellant claims the district court erred by denying his motion for judgment of

acquittal with respect to Counts 1–20, 22–26, and 28–70. He asserts there was insufficient

evidence to support his convictions on these counts.

When reviewing the district court’s denial of a motion for judgment of acquittal

based on evidentiary sufficiency, we view “the evidence in the light most favorable to the

government” and will affirm so long as there is “substantial evidence to support the

conviction.” United States v. White,

(4th Cir. 2014). “Substantial

evidence is evidence that a reasonable finder of fact could accept as adequate and sufficient

to support a conclusion of a defendant’s guilt beyond a reasonable doubt.”

Defendants

face an uphill battle under this standard, as “the jury’s verdict must stand unless we

determine that no rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” United States v. Royal,

(4th Cir. 2013)

(emphasis supplied).

24 1.

Counts 1–20, 22–26, and 28–68 charge Appellant with violations of

(a)(3), which provides, “It shall be unlawful for any person knowingly or

intentionally . . . to acquire or obtain possession of a controlled substance by

misrepresentation, fraud, forgery, deception, or subterfuge.” The indictment alleges

Appellant violated this provision by falsely asserting to Henry Schein “that the controlled

substances were dispensed to his patients” and by falsely denying that “any of the

controlled substances were used by him personally” or “that he used any of the controlled

substances in the treatment of his spouse or family or friends.” J.A. 23.

Appellant asserts the United States “failed to prove with any evidence that [he] did

not use any of the requested controlled substances to treat his patients.” Appellant’s Br.

46. This argument is inconsistent with the record. The United States introduced ample

evidence at trial demonstrating that Appellant did not use the controlled substances that he

purchased from Henry Schein to treat his patients. For example, Investigator Armstrong

testified that a DEA search of Appellant’s patient files “found that there were no records

of dispensing or administration for any of the drugs that were purchased from Henry

Schein.” J.A. 198. In addition, four different former or current employees of Appellant

testified that they never saw Appellant administer controlled substances to his patients.

Appellant also asserts that, even if the United States could prove that the purchase

order forms he submitted to Henry Schein were fraudulent, it cannot establish that his fraud

25 was a but-for cause of the company’s decision to sell him controlled substances. 13

Appellant’s argument in this regard proceeds as follows: Shaun Abreu, a senior manager

for Henry Schein, testified that had Appellant been truthful on the purchase order forms

about using the controlled substances to treat family members and friends, the company’s

“next step” would have been to consult the relevant Virginia regulations to determine

whether such treatment is permissible in the state. J.A. 310. The company’s research

would have revealed that while state regulations prohibit the prescribing of controlled

substances to family members, they do not prohibit the administering of controlled

substances to family members or friends. For this reason, Appellant concludes that Henry

Schein would have sold him the controlled substances even if he had answered the

questions in the purchase order forms honestly, so his fraud is not a but-for cause of his

acquisition of the drugs.

We first note that per the testimony at trial, Henry Schein actually relied on

Appellant’s purchase order forms when deciding whether to sell him controlled substances.

Shaun Abreu repeatedly testified that the answers to the questions contained in those forms

were material to Henry Schein, and further testified that had Appellant been honest about

using the controlled substances to treat family members and friends, the company “would

not have filled [his] order.” J.A. 414. This evidence is sufficient to establish that

13 Like Appellant’s argument that the district court erred by refusing his requested jury instruction on causation, this argument necessarily assumes that

(a)(3) includes a but-for causation requirement. As we did when we analyzed the jury instruction issue, we will assume, without deciding, that it does.

26 Appellant’s fraud was subjectively material to Henry Schein. However, that is not the end

of our inquiry, as the materiality standard in criminal fraud cases is an objective one. See

United States v. Raza,

(4th Cir. 2017). Objective materiality hinges not

on whether Henry Schein actually found Appellant’s purchase order forms to be material,

but whether a reasonable company would have done so under identical circumstances.

We conclude that sufficient evidence supports a jury finding that Appellant’s

statements on the purchase order forms were objectively material. Medical supply

distribution companies like Henry Schein are subject to certain DEA regulations. Abreu

explained in his trial testimony that, because of these regulations, it is in the best interest

of medical supply distribution companies to be selective about the medical practitioners to

whom they sell controlled substances, and to ensure that the practitioners use the controlled

substances in compliance with all applicable laws and regulations. A medical supply

distribution company selling controlled substances in Virginia, then, would certainly be

aware of 18 Virginia Administrative Code § 85-20-25, a state regulation that governs a

medical practitioner treating or prescribing for self or family. 14 As Appellant points out,

this section does not appear on its face to prohibit a medical practitioner from administering

controlled substances to family members or friends. However, it does make clear that a

practitioner may not prescribe controlled substances to family members, and may only

14 Section 85-20-25 provides, in relevant part, “Treating or prescribing shall be based on a bona fide practitioner-patient relationship, and prescribing shall meet the criteria set forth in § 54.1-3303 of the Code of Virginia,” and that, subject to exceptions not present here, “[a] practitioner shall not prescribe a controlled substance to himself or a family member.”

.

27 administer controlled substances to family members pursuant to a bona fide practitioner-

patient relationship.

Even though this regulation does not expressly prohibit the administering of

controlled substances to family members or friends, Appellant stating that he engaged in

that practice would have reasonably caused a medical supply distribution company to

decide against selling to him. For starters, administering controlled substances to family

members or friends raises questions about the existence of a bona fide practitioner-patient

relationship. Furthermore, a practitioner administering controlled substances to his family

members reasonably raises concerns about him prescribing to his family members as well.

In sum, although administering controlled substances to family members may not itself

violate Virginia medical regulations, a practitioner admitting that he engages in such

conduct could reasonably make a medical supply distribution company leery that the

practitioner would violate those regulations in some other way. For these reasons, we find

ample support in the record for the conclusion that Appellant’s misstatements were

objectively material, and reject Appellant’s argument that the purchase order forms did not

impact Henry Schein’s decision to provide him with the controlled substances.

The dissent posits that there is insufficient evidence to support Appellant’s

convictions on Counts 1–6, 17–20, 28, 40–43, and 55. These counts stem from Appellant’s

statement on the April 16, 2014 purchase order form that he does not “use any of the

controlled drug items . . . to treat family members or friends.” J.A. 309–10. As the dissent

acknowledges, “[T]his statement was undeniably false” because Appellant “treated

[Rebecca] Mosig with such substances.” Post at 40. However, the dissent submits that

28 this misstatement was not material to Henry Schein’s decision to fill the orders Appellant

placed in connection with the April 16, 2014 form. In the dissent’s view, because Appellant

and Rebecca Mosig were not yet married as of April 16, 2014, they were merely friends

when Appellant filled out and submitted that purchase order form. Accordingly, because

Virginia law does not prohibit practitioners from prescribing or administering controlled

substances to friends, the dissent concludes that Henry Schein would have sold controlled

substances to Appellant even if his answers on the purchase order form had been truthful.

The dissent’s conclusion is flawed in two respects. First, it ignores the fact that,

under Virginia law, a prescription for controlled substances “may be issued only to persons

. . . with whom the practitioner has a bona fide practitioner-patient relationship.”

. 15 This requirement applies to everyone, including family members and

friends of a practitioner. It would be reasonable, then, that if Henry Schein consulted

relevant state law, it would be concerned not only with whether a practitioner treats his

friends with controlled substances, but also with whether the practitioner prescribes to his

friends outside the scope of a bona fide practitioner-patient relationship. Second, the

dissent does not take into account the fact that Appellant and Rebecca Mosig were married

on April 26, 2014 -- just ten days after Appellant filled out and submitted the April 16,

2014 purchase order form. See Br. for Appellant 47. Had Appellant truthfully answered

that form’s question about treating family members or friends, he would have had to

15 This quotation states Section 54.1-3303 as it existed when it was entered into evidence by the United States. The current version of this section utilizes slightly different language.

29 explain that he used the controlled substances to treat a woman who within a matter of days

would be converted from friend to wife. See Government Exhibit 5-3 (April 16, 2014

Controlled Substance Form) at 1, United States v. Purpera, No. 7:17-cr-79 (W.D. Va. Dec.

14, 2017; filed Feb. 2, 2018), ECF No. 114-3 (instructing Appellant to “Please explain” an

affirmative response to the question about using controlled drug items to treat family

members or friends). Henry Schein reasonably would have been troubled by this

information. As the dissent recognizes, “[A] sensible drug company might well be

concerned about the lack of a bona fide practitioner-patient relationship when a doctor

purports to treat family members, because a doctor in Virginia is prohibited from

prescribing controlled substances to family members.” Post at 42–43. These same

concerns would have been raised had Appellant been truthful when filling out the April 16,

2014 form, because his answers would have put Henry Schein on notice that he used the

company’s controlled substances to treat someone who was to become a family member in

a matter of days.

2.

Count 69 charges Appellant with knowingly failing to maintain records related to

his disposition of controlled substances, in violation of

(a)(4)(A). The

primary dispute with respect to Count 69 is whether the United States met its burden of

proving beyond a reasonable doubt that Appellant did not qualify for the exception to

§ 843(a)(4)(A)’s record-keeping requirement. Pursuant to this exception, a medical

practitioner “is not required to keep records of controlled substances . . . which are

administered in the lawful course of professional practice.”

(d).

30 The district court found that Dr. Burton’s expert opinion that Appellant’s treatment

of his wife was outside the usual course of professional practice was “substantial evidence

from which a reasonable jury could find that [Appellant] did not administer controlled

substances ‘in the lawful course of professional practice.’” J.A. 609. Appellant contends

that even if Dr. Burton correctly opined that his actions violated the norms of the medical

profession, that evidence by itself does not establish that he did not qualify for the exception

to the record-keeping requirement. Appellant’s position in this regard is consistent with

the jury’s instructions for Count 69, which provided, “[V]iolations of . . . professional

norms alone are not sufficient” to prove that Appellant did not qualify for the exception.

. Nonetheless, Appellant’s argument is ultimately unavailing because it

incorrectly assumes that Dr. Burton’s testimony is the only evidence supporting the jury’s

finding that Appellant did not qualify for the exception.

The United States introduced ample evidence demonstrating that Appellant

acquired the controlled substances that he administered to his wife through fraudulent

means. Indeed, the jury convicted Appellant on 67 separate counts of that very crime. A

finding that Appellant acquired controlled substances by fraud inherently supports the

conclusion that his administering of those substances was not within the lawful course of

medical practice. It may be true that Appellant administering controlled substances to his

wife is not in itself a violation of any state or federal laws or regulations. However, in

determining whether Appellant qualified for the exception to § 843(a)(4)(A)’s record-

keeping requirement, the jury was required to assess not merely the ultimate administering

of the controlled substance to his wife, but rather the entire course of professional practice

31 leading up to that point. Here, Appellant’s course of practice began with an unlawful

acquisition of controlled substances. That finding alone supports a conclusion that

Appellant did not qualify for the exception to the record-keeping requirement, even if he

did not commit an additional unlawful act when he subsequently administered those

controlled substances to his wife.

3.

Count 70 charges Appellant with making a false statement to a federal investigator

in violation of

(a)(2). The indictment alleges Appellant falsely stated to

Investigator Armstrong that he kept records related to the dispensing of controlled

substances in his patient files and that he maintained a separate dispensing log related to

those drugs. We hold that the United States introduced sufficient evidence to support a

conviction on Count 70 based on either of these statements.

a.

Appellant argues that his statement to Investigator Armstrong about the records he

maintained in his patient files cannot support a conviction under § 1001(a)(2). According

to Appellant, his statement to Investigator Armstrong was only that he maintained records

in his patient files related to the disposition of some controlled substances, but not

necessarily the substances he purchased from Henry Schein. Appellant concludes that

since he maintained records related to his administering of lidocaine -- a controlled

substance under Virginia law -- in the patient files, his statement to Investigator Armstrong

was literally true and cannot support a conviction.

32 This argument is unavailing. Appellant is correct that a § 1001(a)(2) conviction

cannot be premised on a literally true statement, see United States v. Good,

(4th Cir. 2003), but this defense “applies only where a defendant’s allegedly false

statements were undisputedly literally true.” United States v. Sarwari,

(4th Cir. 2012) (emphasis in original) (internal quotation marks omitted). The defense does

not apply to “an answer [that] would be true on one construction of an arguably ambiguous

question but false on another.”

(alteration in original). Here, there is ambiguity

surrounding the precise nature of Investigator Armstrong’s question about the patient files.

Appellant asserts that Investigator Armstrong was asking about whether he maintained

records in those files related to any controlled substances, while Investigator Armstrong

testified at trial that he and Appellant discussed only the “oxycodone, Xanax, and Valium”

that he purchased from Henry Schein, and “those are the drugs” that Appellant told him

were “recorded in the patient files.” J.A. 179. A reasonable finder of fact could conclude

from this testimony that Investigator Armstrong’s question specifically pertained to the

controlled substances that Appellant purchased from Henry Schein. Furthermore, a

reasonable finder of fact could conclude that Appellant answered this question with a false

statement.

b.

Appellant concedes that he falsely represented to Investigator Armstrong that he

maintained a separate dispensing log for the recording of his administration of controlled

substances. He argues, however, that this statement cannot sustain a § 1001(a)(2)

33 conviction because he “took back” the claim within a minute of making it, before the

statement could “impact or alter” the DEA’s investigation. Appellant’s Br. 51.

Title

(a)(2) prohibits “any materially false, fictitious, or fraudulent

statement or representation.” For purposes of this statute, a “materially false” statement is

one that “has a natural tendency to influence, or is capable of influencing, the decision-

making body to which it was addressed.” United States v. Hamilton,

(4th Cir. 2012). The United States was not required to prove that Appellant’s “false

statement actually influenced the [DEA]’s decision-making process.”

It is therefore

irrelevant that Appellant walked back his statement before it could impact the DEA’s

investigation.

E.

Sentence

Appellant’s final claim is that his sentence is procedurally and substantively

unreasonable. He asserts that the district court based its decision to impose an above-

Guidelines sentence of 20 months of imprisonment on unfounded speculation about who

ultimately used many of the controlled substances that Appellant purchased from Henry

Schein, and whether those substances contributed to the opioid epidemic.

“We review all sentences -- whether inside, just outside, or significantly outside the

Guidelines range” -- for abuse of discretion. United States v. Blue,

(4th

Cir. 2017) (internal quotation marks omitted). We begin by ensuring that the district court

did not commit any significant procedural errors. See United States v. Carter,

(4th Cir. 2009). Such errors include “failing to calculate (or improperly

34 calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider

the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or

failing to adequately explain the chosen sentence -- including an explanation for any

deviation from the Guidelines range.” Id. “If, and only if, we find the sentence” to be

procedurally reasonable, we proceed to an assessment of its substantive reasonableness.

Id. At this stage, we determine whether, under the “totality of the circumstances, including

the extent of any variance from the Guidelines range,” the district court abused its

discretion in imposing the sentence. Gall v. United States,

(2007). When

reviewing an above-Guidelines sentence, we are bound to “give due deference to the

district court’s decision that the § 3553(a) factors, on a whole, justify the extent of the

variance.” United States v. Zuk,

(4th Cir. 2017). At the same time,

however, we recognize that “inherent in the idea of ‘discretion’ is the notion that it may,

on infrequent occasion, be abused.”

Appellant is correct that, at sentencing, the district court mentioned that many of the

pills that he purchased from Henry Schein were unaccounted for. See J.A. 684 (“The facts

would indicate that the majority of the drugs were not given to [Appellant]’s wife. I don’t

know where they are. There’s no evidence to that.”). However, these statements do not

affect the procedural or substantive reasonableness of Appellant’s sentence because they

were irrelevant to the district court’s sentencing decision. The court made explicitly clear

that it did not consider “the number of opioid pills available to [Appellant]’s wife” for

purposes of calculating Appellant’s sentence. Id. at 681. Instead, it considered the number

of pills given to Appellant’s wife “only for purposes of checking the factual basis of one

35 of [his] arguments,” that is, Appellant’s argument that he committed a “crime of love” and

only obtained the controlled substances so he could treat his sick wife. Id. Additionally,

contrary to Appellant’s contention, the district court never speculated as to whether the

controlled substances fraudulently acquired by Appellant contributed to the opioid

epidemic.

Appellant does not claim that the district court committed any other errors at the

sentencing stage of his proceedings, and our review of the record does not reveal any. The

sentence is procedurally reasonable, as the court properly calculated the advisory

Guidelines range as a term of imprisonment of six to 12 months, expressly considered the

factors set out in

(a), and explained that its decision to impose an above-

Guidelines sentence of 20 months of imprisonment was based on the serious nature of the

offenses, specifically the types and quantities “of the controlled substances obtained” and

the “length of time over which the offenses occurred.” J.A. 684. The sentence, including

the eight-month upward variance from the Guidelines range, is also substantively

reasonable, as it is justified by the § 3553(a) factors, particularly the need for a sentence to

“reflect the seriousness of the offense” and “promote respect for the law.”

III.

For the reasons set forth herein, Appellant’s convictions on Counts 1–20, 22–26,

and 28–70, as well as the sentence imposed by the district court, are

AFFIRMED.

36 DIAZ, Circuit Judge, concurring in part and dissenting in part:

Dr. Frank Purpera submitted false statements on two purchase order forms so that

he could acquire controlled substances from Henry Schein, Inc. He then lied to a federal

investigator about his administration of, and recordkeeping for, those substances. For the

reasons ably explained by the majority, I agree that we should affirm most of Purpera’s

convictions.

But I think the evidence is insufficient to support Purpera’s convictions on Counts

1–6, 17–20, 28, 40–43, and 55. These counts arise from the first purchase order form and

related addenda that Purpera submitted to Henry Schein, 1 and are among the counts

alleging that Purpera fraudulently obtained controlled substances in violation of

(a)(3). 2 Contrary to the government’s assertions, the form in question contains but

one false statement. And as to that statement, the record doesn’t contain substantial

evidence that Purpera’s dishonesty was subjectively material to Henry Schein’s decision

to fill the order, or that it would have been objectively material to a reasonable drug

distributor’s decision to fill such an order. I would therefore reverse the convictions on

those counts and remand for resentencing.

1 Although Purpera didn’t move for acquittal on the counts arising from the addenda, as explained infra, Purpera’s arguments as to the counts arising from the first form necessarily apply to those arising from the addenda. 2 Purpera obtained thousands of tablets of oxycodone, hydrocodone, testosterone, alprazolam, diazepam, and tramadol.

37 I.

Dr. Purpera had never purchased controlled substances from Henry Schein before

the events leading up to his offenses. Henry Schein requires a new customer like Purpera

to fill out a questionnaire form attached to the initial purchase order so that the company

can comply with relevant federal and state regulations. When a medical provider later

seeks to order controlled substances not listed on the original form, Henry Schein requires

the provider to list the new drugs in an addendum. But because an addendum includes only

basic information related to the new order (such as quantity and frequency of the drugs),

Henry Schein refers back to the information in the customer’s original questionnaire when

deciding whether to ship controlled substances requested in an addendum.

Purpera submitted his first questionnaire form and order to Henry Schein on April

16, 2014 and later submitted two addenda supplementing that order. Counts 1–6, 28, and

40–43 represent the drugs fraudulently obtained through the April 2014 form, and Counts

17–20 and 55 represent those fraudulently obtained through the addenda. 3

Each count charges Purpera with violating

(a)(3), which makes it

unlawful for any person to knowingly “acquire or obtain possession of a controlled

substance by misrepresentation, fraud, forgery, deception, or subterfuge.” The indictment

alleges that Purpera made three false statements in the questionnaire forms: (1) that he was

not ordering drugs for his personal use, (2) that he dispensed the drugs to his patients, and

3 At Henry Schein’s request, Purpera later submitted a second questionnaire form. The drugs obtained via that form, and a related addendum, support the remaining fraudulent acquisition counts against Purpera.

38 (3) that he did not use the drugs “in the treatment of his spouse or family or friends.” J.A.

23.

The indictment doesn’t allege that the addenda contained any falsehoods. But

because Henry Schein consults the original form before deciding to fill an order from a

related addendum, the counts arising from the addenda are based on the same alleged

misrepresentations. Accordingly, I look to that first form to see if the statements described

in the indictment were false when Purpera made them. 4

First, Purpera’s representation on the April 2014 form that he wasn’t self-

medicating was truthful. Purpera had answered “No” to the question, “Do you use any of

the controlled drug items you order for your own personal use?” J.A. 311. At trial, the

government contended that this answer was false because Purpera used the testosterone

ordered from Henry Schein. But as the district court recognized, Purpera didn’t order the

testosterone until August 2014, months after he submitted the first form. Because

Purpera’s response to the question about self-medicating was true at the time, the district

court acquitted Purpera of Count 21, which alleged his fraudulent acquisition of

testosterone through the first form and related addenda.

Nor did Purpera lie on the April 2014 form about dispensing controlled substances

to his patients. Purpera circled “1–10%” in response to the question, “Please circle the

4 Henry Schein’s instructional materials for its forms don’t require a customer to update information contained in an original questionnaire form. In fact, they suggest the opposite, stating several times that the company would “request additional information” from the customer if necessary. J.A. 219–20.

39 approximate percentage of patients that are treated in your office with controlled

substances daily.” J.A. 223. The evidence at trial was that Purpera administered at least

some of the drugs to Rebecca Mosig, 5 whom he married ten days after submitting the April

2014 form. Indeed, Purpera kept a patient file for Mosig, which included several

prescriptions that he wrote her. The government has since conceded that Mosig may

account for the 1–10% of patients treated with controlled substances in Purpera’s office.

Thus, Purpera’s representation about treating patients can’t support the counts arising from

the first form and related addenda either.

This leaves one remaining alleged misrepresentation on the April 2014 form:

Purpera’s “No” answer to Question 15, which asked, “Do you use any of the controlled

drug items you order to treat family members or friends?” J.A. 309–10. Because Purpera

treated Mosig with such substances, this statement was undeniably false. But to be clear,

Purpera’s answer was false because Mosig was his friend (albeit a special one), not because

she was part of Purpera’s family (since they hadn’t yet tied the knot).

This distinction matters, because not every lie violates

(a)(3). As

the majority explains, the false statement must also have been material to a drug

distributor’s decision to fill an order of controlled substances. Materiality can be analyzed

under a subjective standard (i.e., whether the fraud caused the particular drug supplier

5 Purpera claimed that he administered the “vast majority” of the controlled substances obtained from Henry Schein to his wife. J.A. 442. But as the district court noted, there’s a significant discrepancy between the quantity of drugs Purpera ordered and the quantity he dispensed to Mosig.

40 involved—here, Henry Schein—to ship the drugs), or an objective standard (i.e., whether

the fraud would have caused a reasonable drug supplier to ship the drugs). As the majority

correctly notes, the precedent in this circuit suggests that “the correct test for materiality

[in a criminal fraud case with a private victim] . . . is an objective one.” 6 United States v.

Raza,

(4th Cir. 2017). But because the majority spends some time

discussing whether Henry Schein actually relied on Purpera’s misrepresentation, I do as

well. Here, Purpera’s false statement simply was not material under either standard.

I begin, as the majority did, with subjective materiality. Shaun Abreu testified for

Henry Schein that the answer to Question 15 on the April 2014 form was material because

the company would “consult” and “adhere to” relevant state law on using controlled drugs

to treat family and friends. J.A. 310. Critically, Virginia law prohibits physicians from

prescribing controlled substances to family members, but it treats friends like any other

patient.

. As a consequence, Abreu stated that Henry

Schein wouldn’t fill an order in Virginia for controlled substances if a doctor intended to

use them to treat family members. See J.A. 310–11. But, said Abreu, the company would

fill such an order in a state that permitted using controlled substances to treat family

members. See J.A. 409–10. Abreu also explained that because Virginia law “didn’t really

6 Some of our sister circuits, however, appear to evaluate violations of

(a)(3) under a subjective standard of materiality. See, e.g., United States v. Callahan,

(6th Cir. 2015); United States v. Adade, 547 F. App’x. 142, 146 (3d Cir. 2013); United States v. Bass,

, 857 n. 11 (5th Cir. 1974), overruled on other grounds by United States v. Lyons,

(5th Cir. 1984).

41 address friends,” Henry Schein later removed that part of Question 15 from the form

entirely. See J.A. 406.

Given Abreu’s testimony and the particulars of Virginia law, a false answer to

Question 15 on the April 2014 purchase order form couldn’t have been the cause—“but

for” or otherwise—of Henry Schein’s decision to sell Purpera controlled substances to treat

Mosig. Even if Purpera had answered truthfully, the company would have filled the order

because doctors in Virginia aren’t barred from treating friends. Henry Schein’s decision

to later remove the question further confirms that Purpera’s false statement as to his use of

controlled substances to treat his friend was immaterial to Henry Schein.

On objective materiality too, the majority’s analysis falls short. There’s simply no

evidence that, in light of Virginia law, a reasonable drug distributor would have viewed as

objectively material a doctor’s truthful answer about the use of controlled substances to

treat friends. While the majority suggests a reason (i.e., that friendship could indicate the

absence of a bona fide practitioner-patient relationship), the majority’s inability to cite to

the record on this point is telling. Specifically, no testimony—lay or expert—speaks to

what a reasonable distributor would have considered material with respect to the treatment

of friends and why.

The record shows that a sensible drug company might well be concerned about the

lack of a bona fide practitioner-patient relationship when a doctor purports to treat family

members, because a doctor in Virginia is prohibited from prescribing controlled substances

42 to family members. 7 But that concern is tenuous at best when it comes to friends, who

(under Virginia law) are in the same position as any other patient.

In sum, Purpera lied in response to Question 15 in the April 2014 form with respect

to his treatment of friends, but his misrepresentation wasn’t material to his acquisition of

any controlled substances. And because there are no other falsehoods on the April 2014

form, Purpera couldn’t have fraudulently acquired the controlled substances ordered in that

first form and the related addenda.

* * *

For these reasons, I can’t agree with my colleagues that the government offered

substantial evidence to support Purpera’s convictions on Counts 1–6, 17–20, 28, 40–43,

and 55. Because I would instead reverse those convictions and remand for resentencing, I

am unable to join Part II.D.1 of the majority opinion.

7 For this reason, among others, Purpera’s convictions on the counts arising from his second form and the related addendum are sound. By the time Purpera submitted the second form, Mosig was his wife, so his response “No” to the amended Question 15, which asked “Do you use any controlled substances to treat family members?” was false. J.A. 346. And given Virginia law, the answer was material (and reasonably so) to Henry Schein’s decision to fill the order.

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