Appellate Case: 14-4093

Document: 01019355230

Date Filed: 12/12/2014

CASE NO. 14-4093

IN THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff/Appellant,
v.
DEWEY C. MACKAY, III,
Defendant/Appellee.

On Appeal from the United States District Court

For the District of Utah, Northern Division
The Honorable Dee Benson, District Judge

BRIEF FOR THE UNITED STATES OF AMERICA

CARLIE CHRISTENSEN
Acting United States Attorney
District of Utah
ELIZABETHANNE C. STEVENS
Assistant United States Attorney
185 South State Street, Suite 300
Salt Lake City, Utah 84111-1506
Telephone (801) 524-5682
Elizabethanne.stevens@usdoj.gov
Attorneys for Plaintiff/Appellant

ORAL ARGUMENT IS REQUESTED

Page: 1

Appellate Case: 14-4093

Document: 01019355230

Date Filed: 12/12/2014

Page: 2

TABLE OF CONTENTS

TABLE OF AUTHORITIES.......................................................................................... iii

STATEMENT OF PRIOR AND RELATED APPEALS ..................................................... iv
STATEMENT OF JURISDICTION ..................................................................................1
STATEMENT OF THE ISSUE.........................................................................................1
STATEMENT OF THE CASE .........................................................................................2
STATEMENT OF FACTS ...............................................................................................3
1.

Conviction and Sentencing....................................................................3

2.

MacKays Direct Appeal .......................................................................5

3.

Petition for Writ of Certiorari................................................................8

SUMMARY OF THE ARGUMENT ................................................................................14

STANDARD OF REVIEW ............................................................................................14
ARGUMENT ..............................................................................................................15
The District Court Erred on Remand When It Vacated MacKays
Enhanced Penalty Convictions for Drug Distributions Resulting in
Death, Which Were Affirmed on Appeal under the Correct Legal
Standard, Where the Scope of the Limited Remand was Confined
to Narrow Resentencing Issues and the Courts Invocation of the
Exception to the Mandate Rule for a Dramatic Change in
Controlling Legal Authority Was Improper Because There Was
No Such Change. ..........................................................................................15
1.

The Mandate Rule Limited the Remand to Clarification of

the Sentence ..............................................................................16

2.

The District Court Incorrectly Concluded that Burrage

Was a Dramatic Change in Controlling Legal Authority. ........17
i

Appellate Case: 14-4093

Document: 01019355230

Date Filed: 12/12/2014

Page: 3

CONCLUSION ............................................................................................................22
ORAL ARGUMENT STATEMENT
CERTIFICATE OF SERVICE
CERTIFICATION OF DIGITAL SUBMISSIONS
ATTACHMENT A United States v. MacKay, 1:10CR00094-DB, Docket No. 377,
05/07/2014 Memorandum Decision and Order
ATTACHMENT B United States v. MacKay, 715 F.3d. 807 (10th Cir. 2013),
04/20/2013 Opinion
ATTACHMENT C United States v. MacKay, 1:10CR00094-DB, Docket No. 395,
07/09/2014 Amended Judgment
ATTACHMENT D United States v. MacKay, 1:10CR00094-DB, Docket No. 396,
07/10/2014 Amended Judgment

ii

Appellate Case: 14-4093

Document: 01019355230

Date Filed: 12/12/2014

Page: 4

TABLE OF AUTHORITIES
CASES

PAGE

Burrage v. United States, -- U.S. --, 134 S. Ct. 881 (2014) ........................... passim
Ford v. United States, No. 13-5997, 134 S. Ct. 1274 (Feb. 24, 2014) .................. 21
Gall v. United States, 552 U.S. 38 (2007) ............................................................... 8
State v. Frazier, 339 Mo. 966, 98 S.W.2d 707 (1936) .......................................... 19
United States v. Cummings, 395 F.3d 392 (7th Cir. 2005) ...................................... 7
United States v. MacKay, -- F. Supp. 2d --, 2014 WL 1813147 (D. Ut. 2014) ..... 12
United States v. Mackay, 715 F.3d 807 (10th Cir. 2013) ............. 2-8, 16-17, 20-22
United States v. Moore, 83 F.3d 1231 (10th Cir. 1996) .................................. 13, 16
United States v. Shipp, 644 F.3d 1126 (10th Cir. 2011) ........................................ 14
United States v. Ward, 626 F.3d 179 (3rd Cir. 2010) .............................................. 7
United States v. Webb, 98 F.3d 585 (10th Cir. 1996) ............................................ 16
United States v. West, 646 F.3d 745 (10th Cir. 2011) ........................................... 17
United States v. Woodard, 938 F.2d 1255 (11th Cir. 1991) .................................... 7

STATUTES
18 U.S.C. 3553(a) ................................................................................................. 8
18 U.S.C. 3742(b) ................................................................................................. 1
21 U.S.C. 841 ........................................................................................................ 9
21 U.S.C. 841(a)(l) ...................................................................................... 2-3, 17
21 U.S.C. 841(b)(1)(C) .................................................................... 2-3, 10, 17-18
iii

Appellate Case: 14-4093

Document: 01019355230

Date Filed: 12/12/2014

Page: 5

21 U.S.C. 841(b)(1)(E) ..................................................................................... 2-3

28 U.S.C. 1291 ...................................................................................................... 1

STATEMENT OF PRIOR AND RELATED APPEALS

MacKay v. Drug Enforcement Administration, No. 10-9556
United States v. MacKay, No. 12-4001

iv

Appellate Case: 14-4093

Document: 01019355230

Date Filed: 12/12/2014

Page: 6

IN THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff/Appellant,

No. 14-4093

vs.

BRIEF FOR THE UNITED STATES

DEWEY C. MACKAY, III,

Defendant/Appellee.

STATEMENT OF JURISDICTION
Pursuant to 18 U.S.C. 3742(b) and 28 U.S.C. 1291, this Court has
jurisdiction over this appeal from the final order of the district court sentencing
Dewey MacKay to three years of imprisonment. The Solicitor General has approved
this appeal. The courts order was filed on July 9, 2014, and the United States filed a
timely notice of appeal on August 8, 2014.
STATEMENT OF THE ISSUE
Whether the district court erred on remand when it vacated MacKays
enhanced penalty convictions for drug distributions resulting in death, which were
affirmed on appeal under the correct legal standard, where the scope of the limited
remand was confined to narrow resentencing issues and the courts invocation of the

Appellate Case: 14-4093

Document: 01019355230

Date Filed: 12/12/2014

Page: 7

exception to the mandate rule for a dramatic change in controlling legal authority
was improper because there was no such change.
STATEMENT OF THE CASE
Following a limited sentencing remand from this Court, the district court
exceeded the scope of the remand and ruled that exceptions to the mandate rule and
the law of the case permitted it to vacate drug distribution convictions that had been
affirmed by this Court. (Aplt. App. Vol. I at 313-330; Memorandum Decision and
Order, Doc. 377 (Attachment A).) MacKays conviction on count one for
distribution of a Schedule II controlled substance (oxycodone) with use resulting in
David Wiricks death (21 U.S.C. 841(a)(l) and 841(b)(l)(C)), punishable by a
twenty-year mandatory minimum and up to life, had been affirmed by this Court
following MacKays direct appeal. United States v. Mackay, 715 F.3d 807, 813
(10th Cir. 2013) (MacKay I) (Attachment B & Aplt. App. Vol. II at 348-88).
Count two, distribution of a Schedule III controlled substance (hydrocodone) with
use resulting in Wiricks death (21 U.S.C. 841(a)(l) and 841(b)(1)(E)),
punishable by imprisonment up to fifteen years, also was affirmed by this Court
following MacKays direct appeal. Id. In Mackay I, this Court affirmed MacKays
twenty-year sentence on count one, but issued a limited remand. Having determined
that the district court did not impose individual sentences on each count, and noting
that the twenty-year sentence on count one was below the guideline range, this Court

Appellate Case: 14-4093

Document: 01019355230

Date Filed: 12/12/2014

Page: 8

issued a limited remand . . . to allow the district court to clarify the sentence for the
record and to explain why the sentence it imposes is sufficient, but not greater than
necessary to satisfy the sentencing objectives. MacKay I, 715 F.3d at 846-47 &
n.22. Following the remand, the district court vacated MacKays enhanced penalty
convictions for drug distributions resulting in death and sentenced MacKay to
thirty-six months of imprisonment on the lesser included offense of distribution.
(Aplt. App. Vol. I at 336-47; Judgment dated 7/9/14, Doc. 395 (Attachment C);
Judgment dated 7/10/14, Doc. 396 (Attachment D).)
STATEMENT OF FACTS
1.

Conviction and Sentencing

In August 2011, a jury convicted former doctor Dewey MacKay on forty

counts of illegal drug distribution and related offenses. MacKay I, 715 F.3d at 813.
Three counts involved using a telephone in furtherance of drug distribution and
thirty-seven counts involved unlawfully distributing Schedule II and III controlled
substances. Id. Among the counts of conviction were counts one and two, which
alleged distribution of a Schedule II controlled substance (oxycodone) with use
resulting in David Wiricks death (21 U.S.C. 841(a)(l) and 841(b)(l)(C)),
punishable by a twenty-year mandatory minimum and up to life (count one), and
distribution of a Schedule III controlled substance (hydrocodone) with use resulting
in Wiricks death (21 U.S.C. 841(a)(l) and 841(b)(1)(E)), punishable by

Appellate Case: 14-4093

Document: 01019355230

Date Filed: 12/12/2014

Page: 9

imprisonment up to fifteen years (count two). 1 MacKay I, 715 F.3d at 813, 825 &
n.10. The jury returned a special verdict and concluded that the use of the
oxycodone in count one resulted in Wiricks death and the use of the hydrocodone in
count two resulted in Wiricks death. (Aplt. App. Vol. I at 56-91.)
Following the jury verdict, the district court denied MacKays motion for
judgment of acquittal. MacKay I, 715 F.3d at 825. The district court, in rejecting
MacKays Rule 29 motion on the death counts, noted that the jury had evidence
from four doctors on whether the drugs caused Wiricks death. (Aplt. App. Vol. I at
98.) One of the doctors, toxicologist Stacy Hail, testified that Mr. Wirick would not
have died but for the Oxycodone and Hydrocodone. (Id. at 98-99.) In addition,
Dr. Frikkes autopsy report noted the cooperative effects of the Hydrocodone and
Oxycodone as the cause of death. (Id. at 98.) Dr. Grey testified that he agreed
with Dr. Frikkes report, but added the complication of pneumonia as a contributing
factor to Mr. Wiricks death. (Id. at 99.) MacKays expert, Dr. Baden, opined that
Mr. Wirick died of pneumonia and that the Oxycodone and Hydrocodone did not
cause Mr. Wiricks death. (Id.) The district court concluded, Although there was
conflicting evidence regarding the cause of death, the evidence that the Oxycodone
and Hydrocodone caused Mr. Wiricks death was sufficient that the jury reasonably

A detailed recitation of the facts is found in this Courts opinion. MacKay I, 715
F.3d at 813-23, 825-30.
4

Appellate Case: 14-4093

Document: 01019355230

Date Filed: 12/12/2014

Page: 10

could conclude beyond a reasonable doubt that the use of the Oxycodone and
Hydrocodone resulted in Mr. Wiricks death. (Id.)
At sentencing, the court imposed the mandatory minimum sentence of twenty
years, but did not sentence individually on each count. MacKay I, 715 F.3d at 846.
In imposing sentence, the court stated that twenty years was too long, but
Congress has imposed this law, not me. Id. at 846, n.22.
2.

MacKays Direct Appeal

MacKay appealed his convictions on all but ten counts. Id. at 814, n.4.
Among other things, MacKay challenged the sufficiency of the evidence and the
jury instructions. Id. at 813-14, 825-30, 834. He also asserted that the court erred
when it did not specify individual sentences for each offense. Id. at 846.
On April 30, 2013, this Court affirmed MacKays convictions and, with
respect to counts one and two, rejected MacKays assertion that the evidence was
insufficient for a jury to conclude that the use of the oxycodone and hydrocodone
resulted in Wiricks death. Id. at 828-30. This Court concluded:
Viewing this evidence in the light most favorable to the Government, a
reasonable jury could conclude beyond a reasonable doubt that the
oxycodone by itself and the hydrocodone by itself resulted in Wiricks
death.
...
Although Hail did not explicitly state the hydrocodone alone could
have killed Wirick or the oxycodone alone could have killed Wirick,
the testimony Hail provided, viewed in the light most favorable to the

Appellate Case: 14-4093

Document: 01019355230

Date Filed: 12/12/2014

Page: 11

Government, could allow the jury to reasonably infer that the

oxycodone alone caused Wiricks death and that the hydrocodone
alone caused Wiricks death. At a motion hearing on September 21,
2011, Defendant argued Hails testimony was completely irrational
and completely ridiculous. Aplt. Appx 400. But the jury had every
right to find Hail, a board certified toxicologist testifying that blood
toxicity levels do not matter, more credible than Grey or Baden and to
disregard any testimony it deemed not credible. Accordingly, we
conclude no error, plain or otherwise, exists as to the sufficiency of the
evidence on both counts 1 and 2.
Id. at 830.
For the same reasons it rejected the sufficiency challenge, this Court rejected
MacKays claim that the district court erred in denying his Rule 29 motion because
reasonable doubt existed that Wiricks death resulted from the medications
Defendant prescribed. Id. at 830, n.15.
In addition to affirming the death counts, this Court also concluded that the
evidence in this case is quite sufficient to support Defendants convictions on the
non-death counts. Id. at 823.
MacKay also challenged the jury instructions on the death counts. Id. at 834.
However, this Court concluded that MacKay waived his claims that the district court
did not fully inform the jury of the law on proximate cause and that the instructions
caused confusion because the court did not define reasonably foreseeable
consequence. Id. The district court, on multiple occasions, requested assistance in
drafting the jury instruction at issue and specifically asked for assistance on defining
for the jury what death resulting from the use of the drugs means. Id. Because
6

Appellate Case: 14-4093

Document: 01019355230

Date Filed: 12/12/2014

Page: 12

MacKay did not object to the instruction, especially when invited by the district
court to assist in the drafting [sic] the instruction, he forfeited the issue. Id.
Moreover, because he failed to argue for plain error on appeal, this Court declined to
review MacKays waived challenge to the jury instruction. Id.
This Court concluded that MacKays twenty-year sentence did not violate the
Eight Amendments prohibition on cruel and unusual punishment or the Fifth
Amendments Due Process Clause. Id. at 845. However, MacKay did prevail on
one issue when this Court agreed that it was error for the district court to impose a
general twenty-year sentence of imprisonment, rather than specifying individual
sentences for each count of conviction. Id. at 846-47. A twenty-year sentence
exceeded the statutory maximum sentence for nine of the counts. Id. at 846. This
Court explained:
The 240-month total sentence is problematic only for counts 2, 4-7,
15-17, and 108.
...
We could easily assume from the Guidelines that the district court
sentenced Defendant to 240 months on counts 1, 8-14, 18-26, 32-35,
41-42, 81-84, 120-121, and 123-124; that he sentenced Defendant to
180 months on count 2; 120 months on counts 4-7 and 108; and 48
months on counts 15-17. And we could further assume that the
sentences were imposed to run concurrently. But the judgment is
unclear whether the district court intended to impose a 240-month
sentence on each count, a clearly illegal sentence. See e.g. United
States v. Ward, 626 F.3d 179, 184 (3rd Cir. 2010); United States v.
Cummings, 395 F.3d 392, 400 (7th Cir. 2005); United States v.
Woodard, 938 F.2d 1255, 1257 (11th Cir. 1991). Accordingly, a

Appellate Case: 14-4093

Document: 01019355230

Date Filed: 12/12/2014

Page: 13

limited remand is necessary to allow the district court to clarify the

sentence for the record.
AFFIRMED IN PART and REMANDED for resentencing.
Id. at 846-47.
The Court further stated, in a footnote:
The district court stated the sentence it imposed, the statutory minimum
on count 1, was too long, but Congress has imposed this law, not
me. [Citation omitted.] The court obviously varied downward in
imposing a sentence of 240 months, but did not articulate its reasoning.
After a sentencing judge considers all of the factors listed in 18 U.S.C.
3553(a) and makes an individualized assessment based on the facts
presented, the judge must adequately explain the chosen sentence to
allow for meaningful appellate review and to promote the perception of
fair sentencing. Gall v. United States, 552 U.S. 38, 50, 128 S. Ct. 586,
169 L. Ed. 2d 445 (2007). Accordingly, at re-sentencing, the court
needs to explain why the sentence it imposes is sufficient, but not
greater than necessary to satisfy the sentencing objectives.
Id. at 846-47, n.22.
On May 14, 2013, MacKay filed with this Court a petition for rehearing en
banc. (Aplt. App. Vol. II at 389-408.) He argued that the Courts opinion
overlooked his argument that the government was required to prove each element of
counts one and two and he continued to claim there was insufficient evidence that
the oxycodone and hydrocodone resulted in Wiricks death. (Id. at 398-403.) The
Court denied the petition and the mandate issued on June 5, 2013. (Id. at 409-10.)
3.

Petition for Writ of Certiorari

On August 26, 2013, MacKay filed a petition for a writ of certiorari with the
United States Supreme Court. (Id. at 412-39.) The question presented in the petition
8

Appellate Case: 14-4093

Document: 01019355230

Date Filed: 12/12/2014

Page: 14

was [w]hen a defendant is charged with two counts of distributing two different
drugs resulting in a single death under 21 U.S.C. 841, can a jury convict the
defendant of both counts when no evidence was presented that either drug alone was
sufficient to cause death. (Id. at 413.) In his petition, MacKay argued that the
Supreme Court should intervene and correct the Tenth Circuits holding affirming
the convictions in this case because there was no evidence to support the inference
that either of the two drugs was independently sufficient to cause death. (Id. at 436
(capitalization altered from original).)
The Solicitor General filed a memorandum requesting that MacKays petition
be held pending the Courts resolution in Burrage v. United States, -- U.S. --, 134 S.
Ct. 881 (2014), and then disposed of as appropriate in light of the decision in that
case. (Aplt. App. Vol. II at 441-42.) The questions presented in Burrage were
[w]hether the crime of distribution of drugs causing death under 21 U.S.C. 841 is
a strict liability crime, without a foreseeability or proximate cause requirement; and
[w]hether a person can be convicted for distribution of heroin causing death
utilizing jury instructions which allow a conviction when the heroin that was
distributed contributed to, death by mixed drug intoxication, but was not the sole
cause of death of [a] person. (Id.)
On January 27, 2014, the Supreme Court issued its ruling in Burrage. The
Court held that, at least where use of the drug distributed by the defendant is not an

Appellate Case: 14-4093

Document: 01019355230

Date Filed: 12/12/2014

Page: 15

independently sufficient cause of the victims death or serious bodily injury, a

defendant cannot be liable under the penalty enhancement provision of 21 U.S.C.
841(b)(1)(C) unless such use is a but-for cause of the death or injury. Burrage,
134 S. Ct. at 892.
On February 24, 2014, the Supreme Court denied MacKays certiorari
petition. (Aplt. App. Vol. II at 443.)
4.

Sentencing Remand

Following the Supreme Courts denial of the certiorari petition, MacKay filed
in the district court a Motion with Respect to Resentencing and Memorandum in
Support in which he argued, among other things, that the Tenth Circuit remanded for
a de novo resentencing and Burrage was new, controlling legal authority that
allowed the court to exceed the scope of the remand and required reversal of
MacKays convictions on the death counts. (Aplt. App. Vol. I at 113-24.)
The United States opposed the motion and argued that the mandate rule and
the law of the case doctrine barred the district court from reopening the resulting in
death determinations for counts one and two and that the twenty-year mandatory
minimum term remained. (Aplt. App. Vol. I at 218-304.) The government asserted
that the remand was limited to narrow resentencing issues and this Courts remand
for resentencing did not reopen for reconsideration the validity of the underlying
convictions. (Id. at 223-27.) Moreover, the government noted that Burrage was not

10

Appellate Case: 14-4093

Document: 01019355230

Date Filed: 12/12/2014

Page: 16

a dramatic change in controlling authority because the Court of Appeals anticipated

and applied the Supreme Courts standard when it concluded that a reasonable jury
could conclude, beyond a reasonable doubt, that the hydrocodone alone and the
oxycodone alone resulted in Wiricks death. (Id. at 228.) The government also
explained that the imposition of the mandatory minimum sentence for Count 1
[was] not subject to being reopened, inasmuch as the convictions for both counts and
sentence for Count 1 were affirmed on appeal . . . making the matter the law of the
case. (Id. at 229.)
MacKay filed a reply and, on April 15, 2014, the district court held a hearing.
(Aplt. App. Vol. I at 305-11; Aplt. App. Vol. II at 444-81.) At the hearing,
MacKays counsel conceded that, during his appeal, for all intents and purposes, it
seems like the Tenth Circuit adopted Burrage and adopted our theory of the law but
then misapplied the facts. (Aplt. App. Vol. II at 460; id. at 457 ([T]he Tenth
Circuit did say expressly that the proof required would have been in and of itself that
oxycodone was responsible for the death and hydrocodone was responsible for the
death. So essentially they adopted our theory that we argued on appeal.); see also
id. at 477 (district court: you told [the Court of Appeals] the right standard and they
said there were sufficient facts to support it.); id. at 478 (district court: They did
seem to have the right standard, and you [MacKays counsel] even admit that in your
brief.; They got the standard right and the result wrong.).)

11

Appellate Case: 14-4093

Document: 01019355230

Date Filed: 12/12/2014

Page: 17

The government argued that the remand was limited and agreed with
MacKays counsel that, in MacKay I, this Court essentially applied the causation
standard later articulated in Burrage. (Id. at 463, 466-67.) As a result, Burrage was
not a dramatic change in controlling legal authority in MacKays case such that the
district court could depart from the mandate. (Id. at 468-69.) The court took the
matter under advisement. (Id. at 480.)
On May 7, 2014, the Court issued a Memorandum Decision and Order
vacat[ing] MacKays enhanced penalty convictions on Counts 1 and 2, and
imposing a new sentence of thirty-six months incarceration and no supervised
release. (Aplt. App. Vol. I at 323, 329; United States v. MacKay, -- F. Supp. 2d --,
2014 WL 1813147 (D. Ut. 2014).)
The court explained the previous sentence it imposed as follows:
On December 19, 2011, this Court sentenced MacKay to 240 months
incarceration due to the mandatory minimum penalty for his conviction
on Count 1. Given the 20-year sentence on Count 1, the Court stated
that the sentence for the other counts would be less than 20 years and
would run concurrently to the sentence on Count 1. The Court did not
specify a sentence for the other counts even though nine of the counts
had a maximum statutory term of imprisonment below 240-months
(Counts 2, 4-7, 15-17, and 108). (Dkt. Nos. 286, 287.) The Court also
was not requested and did not explain in any detail why it departed
downward from the advisory Guideline range in its sentence for Count
1.
(Aplt. App. Vol. I at 315-16.)

12

Appellate Case: 14-4093

Document: 01019355230

Date Filed: 12/12/2014

Page: 18

The court noted that a district court may depart from an appellate courts
mandate under exceptional circumstances, including (1) a dramatic change in
controlling legal authority; (2) significant new evidence that was not earlier
obtainable through due diligence but has since come to light; or (3) [if] blatant error
from the prior sentencing decision would result in serious injustice if uncorrected.
(Id. at 318 (citing United States v. Moore, 83 F.3d 1231, 1234 (10th Cir. 1996)).)
The court concluded that the Supreme Courts interpretation of the phrase resulted
from in Burrage was the precise type of dramatic change in controlling legal
authority contemplated by Moore. Id. at 320.
Because the court failed to impose its sentence in open court, and for other
reasons, the government moved for a sentencing hearing, which was held on July 1,
2014. 2 (Aplt. App. Vol. I at 331-33; Aplt. App. Vol. II at 482-561.) The court again
imposed a 36-month sentence and stated that it was not sentencing de novo, but
was sentencing in light of changed circumstances. (Aplt. App. Vol. II at 510,
558.) On July 9, 2014, an amended judgment was docketed reflecting the 36-month
sentence. (Aplt. App. Vol. I at 336-41.) A second amended judgment was filed on
July 10, 2014, which removed the resulting in death language from counts one and
two. (Id. at 342-47.)

The filings associated with the sentencing hearing are not relevant to the issue on
appeal.
13

Appellate Case: 14-4093

Document: 01019355230

Date Filed: 12/12/2014

Page: 19

SUMMARY OF THE ARGUMENT

The district court erred on remand when it vacated MacKays enhanced
penalty convictions for drug distributions resulting in death. As the district court
acknowledged, the scope of the remand was limited. Therefore, in order to go
beyond the scope of the limited remand, the court invoked an exception to the
mandate rule for dramatic changes in controlling legal authority. The courts
conclusion that the Supreme Courts decision in Burrage v. United States was such a
dramatic change was in error. As the parties and the district court acknowledged,
this Court applied the causation standard ultimately set forth in Burrage when it
affirmed MacKays resulting in death convictions on appeal. Therefore, there was
no dramatic change in controlling legal authority applicable to MacKays case and
the matter should be remanded to the district court for reinstatement of the resulting
in death convictions and reimposition of the mandatory minimum twenty-year
sentence on count one.
STANDARD OF REVIEW
Interpretation of the mandate is an issue of law that [the Court] review[s] de
novo. United States v. Shipp, 644 F.3d 1126, 1129 (10th Cir. 2011).

14

Appellate Case: 14-4093

Document: 01019355230

Date Filed: 12/12/2014

Page: 20

ARGUMENT
The District Court Erred on Remand When It Vacated MacKays
Enhanced Penalty Convictions for Drug Distributions Resulting in
Death, Which Were Affirmed on Appeal under the Correct Legal
Standard, Where the Scope of the Limited Remand was Confined
to Narrow Resentencing Issues and the Courts Invocation of the
Exception to the Mandate Rule for a Dramatic Change in
Controlling Legal Authority Was Improper Because There Was
No Such Change.
This Courts limited remand to clarify sentencing matters did not permit the
district court to vacate MacKays enhanced penalty convictions on counts one and
two, which were affirmed by this Court. The case was remanded for the limited
purpose of having the district court assign specific sentences to counts other than
count one and to explain why it departed below the guidelines in imposing the
twenty-year sentence.
The district court, recognizing that the remand was limited, erroneously
believed that it could go beyond the remand based on its conclusion that the
Supreme Courts decision in Burrage v. United States, -- U.S. --, 134 S. Ct. 881
(2014), was a dramatic change in controlling legal authority. However, as the
parties and the district court recognized, this Court applied to MacKays case the
standard that ultimately was adopted in Burrage. As a result, there was no dramatic
change in the law to apply to MacKays case and the mandate should be enforced.

15

Appellate Case: 14-4093

1.

Document: 01019355230

Date Filed: 12/12/2014

Page: 21

The Mandate Rule Limited the Remand to

Clarification of the Sentence

The mandate rule generally requires a district court to conform to the

articulated appellate remand. United States v. Webb, 98 F.3d 585, 587 (10th Cir.
1996). However, the rule is a discretion-guiding rule subject to exception in the
interests of justice. United States v. Moore, 83 F.3d 1231, 1234 (10th Cir. 1996). A
district court may depart from an appellate courts mandate under exceptional
circumstances, including: (1) a dramatic change in controlling legal authority;
(2) significant new evidence that was not earlier obtainable through due diligence
but has since come to light; or (3) that blatant error from the prior sentencing
decision would result in serious injustice if uncorrected. Id.
The mandate in this case was clear. This Court affirmed MacKays
convictions (including the two resulting in death counts); upheld the twenty-year
sentence on count one against MacKays Eighth and Fifth Amendment challenges;
and remanded for the district court to clarify the sentence. MacKay I, 715 F.3d at
813, 842-47. The purpose of the limited remand was to allow the district court to
clarify the sentence for the record and to explain why the sentence it imposes is
sufficient, but not greater than necessary to satisfy the sentencing objectives. Id. at
846-47 & n.22. The remand was necessary, the Court concluded, because the
judgment set forth a twenty-year sentence, but did not assign specific sentences to
specific counts of conviction. That mattered because nine of the counts of
16

Appellate Case: 14-4093

Document: 01019355230

Date Filed: 12/12/2014

Page: 22

conviction carried statutory maximums that were lower than twenty years.
Significantly, this Court had no problem with the twenty-year sentence imposed on
count one. See id. at 846 (The 240-month total sentence is problematic only for
counts 2, 4-7, 15-17, and 108.).
Although MacKay argued that this Courts remand permitted a de novo
resentencing, the district court properly concluded that the remand was limited. See
Aplt. App. Vol. II at 510 (I am not sentencing de novo.); United States v. West,
646 F.3d 745, 749 (10th Cir. 2011) (the scope of the mandate on remand in the
Tenth Circuit is carved out by exclusion: unless the district courts discretion is
specifically cabined, it may exercise discretion on what may be heard.). Because
the remand was limited, the district court recognized that it could go beyond the
explanatory sentencing issues identified by this Court only if one of the exceptions
to the mandate rule applied. Here, the district court incorrectly concluded that
Burrage was a dramatic change in controlling legal authority that authorized it to
depart from the limited explanatory remand and vacate convictions and a
twenty-year sentence that had already been affirmed.
2.

The District Court Incorrectly Concluded that

Burrage Was a Dramatic Change in Controlling
Legal Authority.

Burrage was not a dramatic change in controlling legal authority. In that case,
Marcus Burrage was charged, pursuant to 21 U.S.C. 841(a)(1) & (b)(1)(C), with

17

Appellate Case: 14-4093

Document: 01019355230

Date Filed: 12/12/2014

Page: 23

unlawfully distributing heroin, which use resulted in Joshua Bankas death.

Burrage, 134 S. Ct. at 885. Banka, a long-time heroin user who had recently
purchased one gram of heroin from Burrage, had multiple drugs in his system at the
time of his death. Id. The toxicologist who testified at trial could not say whether
Banka would have lived had he not taken the heroin, but did conclude that the
heroin was a contributing factor in Bankas death. Id. The medical examiner
testified that the cause of death was mixed drug intoxication with heroin,
oxycodone, alprazolam, and clonazepam all playing a contributing role. Id. at
886. The trial court denied Burrages Rule 29 motion in which he argued that
Bankas death did not result from heroin use because there was no evidence the
heroin was a but-for cause of death. Id. In addition, the court declined to give
Burrages proposed instructions on causation and, instead, advised the jury that the
government was only required to prove that the heroin Burrage distributed was a
contributing cause of Bankas death. Id.
The Supreme Court concluded that a contributing cause standard was
incorrect. The Court held that, at least where use of the drug distributed by the
defendant is not an independently sufficient cause of the victims death or serious
bodily injury, a defendant cannot be liable under the penalty enhancement provision
of 21 U.S.C. 841(b)(1)(C) unless such use is a but-for cause of the death or injury.
Id. at 892.

18

Appellate Case: 14-4093

Document: 01019355230

Date Filed: 12/12/2014

Page: 24

Burrage requires that the use of the drug alleged to have resulted in death was
either an independently sufficient cause of death or the but-for cause of death. A
drug is an independently sufficient cause of death where the victim would have died
from the use of the drug alone. Id. at 890 (explaining that an independently
sufficient cause of death is one where Banka would have died from the heroin use
alone). But-for causation was explained by the Burrage Court as follows:
[W]here A shoots B, who is hit and dies, we can say that A [actually]
caused Bs death, since but for As conduct B would not have died.
LaFave 467-468 (italics omitted). The same conclusion follows if the
predicate act combines with other factors to produce the result, so long
as the other factors alone would not have done so -- if, so to speak, it
was the straw that broke the camels back. Thus, if poison is
administered to a man debilitated by multiple diseases, it is a but-for
cause of his death even if those diseases played a part in his demise, so
long as, without the incremental effect of the poison, he would have
lived. See, e.g., State v. Frazier, 339 Mo. 966, 974-975, 98 S.W.2d
707, 712-713 (1936).
This but-for requirement is part of the common understanding of cause.
Consider a baseball game in which the visiting teams leadoff batter
hits a home run in the top of the first inning. If the visiting team goes on
to win by a score of 1 to 0, every person competent in the English
language and familiar with the American pastime would agree that the
victory resulted from the home run. This is so because it is natural to
say that one event is the outcome or consequence of another when the
former would not have occurred but for the latter. It is beside the point
that the victory also resulted from a host of other necessary causes,
such as skillful pitching, the coachs decision to put the leadoff batter in
the lineup, and the leagues decision to schedule the game. By contrast,
it makes little sense to say that an event resulted from or was the
outcome of some earlier action if the action merely played a
nonessential contributing role in producing the event. If the visiting
team wound up winning 5 to 2 rather than 1 to 0, one would be

19

Appellate Case: 14-4093

Document: 01019355230

Date Filed: 12/12/2014

Page: 25

surprised to read in the sports page that the victory resulted from the
leadoff batters early, non-dispositive home run.
Where there is no textual or contextual indication to the contrary, courts
regularly read phrases like results from to require but-for causality.
Id. at 888.
In MacKay I, the Court of Appeals applied the independently sufficient cause
of death standard and stated that a reasonable jury could conclude beyond a
reasonable doubt that the oxycodone by itself and the hydrocodone by itself resulted
in Wiricks death. MacKay I, 715 F.3d at 830. This Court applied, pre-Burrage,
one of the standards specifically endorsed by Burrage.
Both parties and the district court acknowledged that this Court applied in
MacKay I the standard later set forth in Burrage. MacKays counsel conceded, for
all intents and purposes, it seems like the Tenth Circuit adopted Burrage and
adopted our theory of the law, but then argued that this Court misapplied the
facts. (Aplt. App. Vol. II at 460; see also id. at 457 ([T]he Tenth Circuit did say
expressly that the proof required would have been in and of itself that oxycodone
was responsible for the death and hydrocodone was responsible for the death. So
essentially they adopted our theory that we argued on appeal.).) The district court
agreed and observed, They did seem to have the right standard, and you [MacKays
counsel] even admit that in your brief. (Id. at 478; see also id. at 477 (you told [the
Court of Appeals] the right standard and they said there were sufficient facts to

20

Appellate Case: 14-4093

Document: 01019355230

Date Filed: 12/12/2014

Page: 26

support it).)3 The district courts conclusion in its written order that Burrage
justified invocation of an exception to the mandate rule for a dramatic change in
controlling legal authority is entirely inconsistent with these acknowledgements.
Because this Court applied the independently sufficient causation standard,
Burrage presented no dramatic change in controlling legal authority. Moreover, the
Supreme Courts decision denying MacKays certiorari petition underscores the fact
that Burrage did not impact MacKays case. MacKays petition raised a
Burrage-type question and, after deciding Burrage, the Supreme Court denied
MacKays petition. It did not remand the case to the Court of Appeals for
reconsideration in light of Burrage, which is what the Supreme Court did, on the
very same day as MacKays denial, in Ford v. United States, No. 13-5997, 134 S. Ct.
1274 (Feb. 24, 2014) (granting certiorari, vacating judgment, and remanding to the
Eighth Circuit for further consideration in light of Burrage).
The district court erred when it concluded that the exception to the mandate
rule for dramatic changes in controlling legal authority applied. Because the remand
was limited and there was no dramatic change in controlling law, the district court
was not authorized to go beyond the scope of the mandate, which was limited to

The government referred to the Burrage standard in the district court as but-for
causation. See, e.g., Aplt. App. Vol. II at 463, 466. As explained above, Burrage
requires but-for causation or independently sufficient causation. This Court applied
the standard for independently sufficient causation in MacKay I.

21

Appellate Case: 14-4093

Document: 01019355230

Date Filed: 12/12/2014

Page: 27

having the district court clarify the sentence for the record and explain why it
varied downward. MacKay I, 715 F.3d at 846-47 & n.22. Despite raising numerous
issues on appeal, the only issue on which MacKay prevailed was his challenge to the
district courts general sentence and this Court did not vacate MacKays twenty-year
sentence on count one. Instead, this Court affirmed in part and remanded for
resentencing. Id. at 847. As a result, the mandate should be enforced, the resulting
in death convictions reinstated, and the twenty-year mandatory minimum sentence
on count one reimposed.
CONCLUSION
For the foregoing reasons, this Court should remand to the district court for
reinstatement of the resulting in death convictions in counts one and two and for the
reimposition of the mandatory minimum twenty-year sentence on count one.

22

Appellate Case: 14-4093

Document: 01019355230

Date Filed: 12/12/2014

Page: 28

ORAL ARGUMENT STATEMENT

Oral argument, at which the United States can respond to any questions or
concerns, would be of material assistance to the Court.
RESPECTFULLY SUBMITTED this 12th day of December, 2014.
CARLIE CHRISTENSEN
Acting United States Attorney

/s/ Elizabethanne C. Stevens

ELIZABETHANNE C. STEVENS
Assistant United States Attorney
Utah Bar No. 7314
185 South State Street, Suite 300
Salt Lake City, Utah 84111
801-325-3357
elizabethanne.stevens@usdoj.gov

23

Appellate Case: 14-4093

Document: 01019355230

Date Filed: 12/12/2014

Page: 29

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I am an employee of the United States Attorney's
Office, and an electronic copy via the ECF system of the foregoing BRIEF FOR
THE UNITED STATES were served to all parties named below, this 12th day of
December, 2014.
Peter Stirba
Nathan Crane
Kathleen Abke
Stirba & Associates
215 South State Street, Ste. 750
Salt Lake City, UT 84111

/s/ Stephanie Reinhart

STEPHANIE REINHART
Legal Assistant
185 South State Street, Suite 300
Salt Lake City, Utah 84111
(801) 325-3345
stephanie.reinhart@usdoj.gov

Appellate Case: 14-4093

Document: 01019355230

Date Filed: 12/12/2014

Page: 30

CERTIFICATION OF DIGITAL SUBMISSIONS

I HEREBY CERTIFY that I am an employee of the United States Attorneys
Office, and that
(1)

All required privacy redactions have been made and, with the exception
of any redactions, every document submitted in Digital Form or
scanned PDF format is an exact copy of the written document filed with
the clerk; and

(2)

The ECF submission has been scanned for viruses with the most recent
version of Trend Micro OfficeScan, version number 10.6.2108, last
updated December 11, 2014, and according to the program, are free of
viruses.

/s/ Stephanie Reinhart

STEPHANIE REINHART
Legal Assistant
185 South State Street, Suite 300
Salt Lake City, Utah 84111
(801) 325-3345
stephanie.reinhart@usdoj.gov

Appellate Case: 14-4093

Document: 01019355231

Date Filed: 12/12/2014

Page: 1

ATTACHMENT A
United States v. MacKay,
No. 1:10CR00094-DB
Memorandum Decision and
Order

Case 1:10-cr-00094-DB Document 377 Filed 05/07/14 Page 1 of 18

Appellate Case: 14-4093 Document: 01019355231 Date Filed: 12/12/2014 Page: 2

IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH

NORTHERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

MEMORANDUM DECISION
AND ORDER

vs.
DEWEY C. MACKAY, III,

Case No. 1:10-CR-94

Defendant.

Judge Dee Benson

Before the Court is the resentencing of Defendant Dewey C. MacKay, III. On March 18,
2014, MacKay filed a Motion with Respect to Resentencing. (Dkt. No. 370.) On March 29,
2014, the Government filed its Response. (Dkt. No. 371.) In its Response, the Government
incorporated by reference its Supplemental Sentencing Memorandum. (Dkt. No. 372.) The
Court heard oral argument on April 15, 2014, Peter Stirba and Jeffrey Mann appearing on behalf
of MacKay; Michael Kennedy, Richard Daynes, and Carlos Esqueda appearing on behalf of the
United States. Having considered the parties briefs, arguments, and the relevant law, the Court
now issues the following memorandum decision and order.
BACKGROUND
On August 5, 2010, MacKay was indicted in the United States District Court for the
District of Utah, on 129 counts related to the unlawful distribution of Schedule II and Schedule
III controlled substances. (Dkt. No. 1.) Among the counts, MacKay was charged with two
counts (Counts 1 and 2), which alleged that MacKay distributed a controlled substance
(oxycodone (Percocet), a Schedule II controlled substance, and hydrocodone (Lortab), a
1

Case 1:10-cr-00094-DB Document 377 Filed 05/07/14 Page 2 of 18

Appellate Case: 14-4093 Document: 01019355231 Date Filed: 12/12/2014 Page: 3

Schedule III controlled substance, respectively), the use of which resulted in the death of Mr.
David Wirick.
The statute under which MacKay was charged for Counts 1 and 2 makes it unlawful to
manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or
dispense, a controlled substance . . . . 21 U.S.C. 841(a) (1) (2013). Penalties for violations of
841(a) include up to 20 years for the unlawful distribution of a Schedule II controlled
substance and up to 10 years for a Schedule III controlled substance. However, the penalty is
enhanced to a mandatory minimum sentence of 20 years for a Schedule II controlled substance,
and a maximum of 15 years for a Schedule III controlled substance, if death or serious bodily
injury results from the use of such substance. Id. at 841(b)(1)(C) & (b)(1)(E)(i) (emphasis
added). The jury was asked to return a special verdict regarding Counts 1 and 2, answering
whether Mr. Wiricks death resulted from the drugs prescribed by MacKay. When it came time
to instruct the jury, after consultation with the parties and with no request for any specific
instructions on the meaning of the statutory language, the Court did not provide any direction as
to the meaning of the phrase results from. (Dkt. No. 250, Jury Instruction No. 22.) The
following instruction was given to the jury:
To find Dr. Mackay guilty of the charges in counts 1 and 2 the
government must prove the following two essential elements beyond a reasonable
doubt:
First, that the defendant knowingly and intentionally distributed or
dispensed the controlled substances alleged in the indictment; and
Second, that the defendant knowingly and intentionally prescribed the
controlled substances outside the bounds of professional medical practice and not
for a legitimate medical purpose.
If you determine that the above two essential elements are satisfied as to
counts 1 and 2 you must then determine whether or not death resulted from the
use of the controlled substances dispensed and distributed by Dr. Mackay to
David Wirick.
Death, of course, means exactly that, that an individual has died. You
must determine from the evidence, beyond a reasonable doubt, whether or not
2

Case 1:10-cr-00094-DB Document 377 Filed 05/07/14 Page 3 of 18

Appellate Case: 14-4093 Document: 01019355231 Date Filed: 12/12/2014 Page: 4

David Wirick died from using the controlled substances dispensed and distributed
by the defendant. The government also must prove that the death was a
reasonably foreseeable consequence of the defendants conduct. It is not
necessary, however, for the government to prove that David Wiricks death was
the intended result of the defendants dispensing and distributing of the controlled
substances.
(Id.) (emphasis added).
This instruction was the only direction given to the jury regarding the law on this
subject. As can be seen, it refers to the controlled substances in plural and provides no
interpretation of the meaning of the phrase whether or not death resulted from the use
of the controlled substances provided by MacKay.
On August 9, 2011, at the close of the governments case-in-chief, MacKay
moved for a judgment of acquittal on all tried counts, pursuant to Rule 29(a) of the
Federal Rules of Criminal Procedure. (Dkt. No. 267.) The Court denied MacKays
motion. On August 16, 2011, after all the evidence had been presented, Dr. MacKay
renewed his Rule 29(a) motion with respect to only Counts 1 and 2. The Court reserved
judgment on the motion pursuant to Rule 29(b), and the case was submitted to the jury.
On August 18, 2011, MacKay was convicted on 40 counts, including Counts 1 and 2.
(Dkt. No. 245 at 12.) On December 13, 2011, the Court denied MacKays Motion for
Judgment of Acquittal on Counts 1 and 2. (Dkt. No. 271.)
On December 19, 2011, this Court sentenced MacKay to 240 months incarceration due to
the mandatory minimum penalty for his conviction on Count 1. Given the 20-year sentence on
Count 1, the Court stated that the sentence for the other counts would be less than 20 years and
would run concurrently to the sentence on Count 1. The Court did not specify a sentence for the
other counts even though nine of the counts had a maximum statutory term of imprisonment
below 240-months (Counts 2, 4-7, 15-17, and 108). (Dkt. Nos. 286, 287.) The Court also was
3

Case 1:10-cr-00094-DB Document 377 Filed 05/07/14 Page 4 of 18

Appellate Case: 14-4093 Document: 01019355231 Date Filed: 12/12/2014 Page: 5

not requested and did not explain in any detail why it departed downward from the advisory
Guideline range in its sentence for Count 1. (Id.)
On January 4, 2012, MacKay filed a Notice of Appeal to the United States Court of
Appeals for the Tenth Circuit. (Dkt. No. 294.) One of the many grounds on which MacKay
based his appeal was that this Court committed error when it sentenced him to a general 240month sentence of imprisonment, rather than specifying individual sentences for each offense.
United States v. MacKay, 715 F.3d 807, 846 (10th Cir. 2013). Mackay also claimed on appeal
that there were insufficient facts to support the jurys verdict on Counts 1 and 2. The
Government argued the evidence was sufficient. The evidence regarding the cause of death of
Mr. Wirick can be summarized as follows:

The Government introduced into evidence Mr. Wiricks autopsy report,

prepared by Dr. Maureen Frikke, an assistant medical examiner. (Gov.s Trial
Ex. 21 at 12.) Dr. Frikkes report listed the cause of death as drug poisoning
due to a combination of hydrocodone and oxycodone, and pneumonia as a
complication of the drug poisoning. (Dkt. No. 370-1 at 1-2.) Dr. Frikke also
reported that the concentrations of each drug were below the concentration
range that has been reported to cause death when it is the only drug present.
(Id. at 2.) Dr. Frikke did not testify because she passed away prior to trial.

At trial, the Government called Dr. Todd Grey, Utahs Chief Medical
Examiner, to testify. Dr. Grey opined that Mr. Wirick died as a result of
combined effects of drug toxicities, specifically with oxycodone and diazepam
(Valium) as well as bronchopneumonia, or infection of the lungs. (Dkt. No.
370-2 at 8-9.) Dr. Grey testified that the level of hydrocodone was above
expected therapeutic and just below the lower limit of what is considered
potentially toxic and that the level of oxycodone was in the high therapeutic
range. (Id. at 14-15.) Dr. Grey testified that without the drugs in Mr.
Wiricks system, the pneumonia that was present in Mr. Wiricks lungs was
potentially lethal. (Id. at 23.)

The Government also called Dr. Stacey Hail, a toxicologist, to testify. Dr.
Hail opined that Mr. Wiricks death resulted from a combination of the drugs.
Dr. Hail testified, The opinion is that the hydrocodone and oxycodone were
the drugs that resulted in his death. And I would also list out the Valium, the
diazepam, as contributing, as well as the Soma, which is listed on this report
as carisoprodol. That would add as well into the central nervous system
4

Case 1:10-cr-00094-DB Document 377 Filed 05/07/14 Page 5 of 18

Appellate Case: 14-4093 Document: 01019355231 Date Filed: 12/12/2014 Page: 6

depression, but none of this would have occurred without the oxycodone and
hydrocodone. (Dkt. No. 370-2 at 29.) Dr. Hail excluded pneumonia as an
immediate cause of death.

MacKay called Dr. Michael Baden, a forensic pathologist, to testify. Dr.

Baden testified that Mr. Wirick died of a severe untreated undiagnosed
pneumonia. (Dkt. No. 370-3 at 6.) Dr. Baden concluded that Mr. Wiricks
[p]neumonia was sufficient in and of itself to be lethal or fatal and caused his
death because of its extent to the lungs, and the drugs were not. Id. at 7.)

On April 30, 2013, the Tenth Circuit remanded for resentencing because it was unclear
whether this Court intended to impose a 240-month sentence on each count, which would be
improper. United States v. MacKay, 715 F.3d 807, 84647 (10th Cir. 2013). The Tenth Circuit
instructed this Court at resentencing to explain why the sentence it imposes is sufficient, but not
greater than necessary to satisfy the sentencing objectives. Id. at 846 n. 22. A resentencing
hearing was set for September 24, 2013. (Dkt. No. 358.)
On August 26, 2013, MacKay filed a Petition for a Writ of Certiorari in the United States
Supreme Court. On October 21, 2013, the Solicitor General filed a Response Memorandum to
MacKays Petition. In the Response, the Solicitor General stated:
On April 29, 2013, this Court granted certiorari in Burrage v. United States, No.
12-7515 (oral argument scheduled for Nov. 12, 2013) . . . . Because this Courts
decision in Burrage may affect the proper resolution of this case, the petition for a
writ of certiorari should be held pending the Courts resolution of Burrage, and
then disposed of as appropriate in light of the decision in that case.
Memorandum for the United States, No. 13-274, at 1-2.
On November 5, 2013, this Court granted MacKays unopposed Motion to Continue
Resentencing Hearing, in order to accommodate the outcome in Burrage, and to allow the
Supreme Court the opportunity to rule on MacKays Petition. (Dkt. No. 365).
On January 27, 2014, the Supreme Court issued its ruling in Burrage v. United States,
134 S.Ct. 881 (2014), holding that, at least where the use of the drug distributed by the

Case 1:10-cr-00094-DB Document 377 Filed 05/07/14 Page 6 of 18

Appellate Case: 14-4093 Document: 01019355231 Date Filed: 12/12/2014 Page: 7

defendant is not an independently sufficient cause of the victims death . . ., a defendant cannot
be liable under the penalty enhancement provision of 21 U.S.C. 841(b)(1)(C) unless such use is
a but-for cause of the death . . . . Burrage, 134 S.Ct. at 892 (emphasis added). The Supreme
Court denied certiorari on MacKays Petition on February 24, 2014. (Dkt. No. 367.)
ANALYSIS
I.

Scope of the Resentencing

At the outset, the Court must decide the appropriate scope of resentencing. "[A]lthough
resentencing on remand is typically de novo, this does not hold true where an appellate court has
specifically limited a district court's discretion." United States v. Webb, 98 F.3d 585, 587 (10th
Cir. 1996), cert. denied, 137 L. Ed. 2d 229, 117 S. Ct. 1097 (1997). Under the mandate rule,
district courts are generally required to conform with the articulated appellate remand." United
States v. Moore, 83 F.3d 1231, 1234 (10th Cir. 1996).
However, this mandate rule "is a discretion-guiding rule subject to exception in the
interests of justice." Id. A district court may depart from an appellate court's mandate under
exceptional circumstances, including "(1) a dramatic change in controlling legal authority; (2)
significant new evidence that was not earlier obtainable through due diligence but has since
come to light; or (3) [if] blatant error from the prior sentencing decision would result in serious
injustice if uncorrected." Id.
The Government argues that the Courts role in resentencing MacKay is limited to two
specific sentencing issues: first, clarification of this Courts intent regarding the sentence
imposed for counts other than Count 1; and, second, an explanation of this Courts reasons for
varying below the advisory Guideline range in its sentence for Count 1.

Case 1:10-cr-00094-DB Document 377 Filed 05/07/14 Page 7 of 18

Appellate Case: 14-4093 Document: 01019355231 Date Filed: 12/12/2014 Page: 8

MacKay argues that the Tenth Circuit remanded for de novo resentencing, and in the
alternative, that even if the mandate is limited as the Government suggests, that pursuant to
Tenth Circuit precedent, Burrage is a sufficient change in controlling legal authority to allow this
Court to exceed the mandate. In order to make such a decision, the Court must first examine the
Burrage case.
In Burrage, Marcus Burrage was charged with violating 841(a)(1) for distributing
heroin to Joshua Banka and was subject to the enhanced penalty because the Government alleged
that Bankas death resulted from the use of the heroin. Burrage, 134 S.Ct. at 885. Two
medical experts testified at trial regarding the cause of Bankas death. Id. The first testified that
multiple drugs were present at the time of death and that the heroin was the only drug above the
therapeutic range, but he could not say whether Banka would have lived had he not taken the
heroin. Id.
He concluded that the heroin interacted with the other drugs to cause respiratory and/or
central nervous system depression and was thus a contributing factor to the overall effect that
caused death. Id. The second expert also testified that the heroin played a contributing role,
but he also could not say whether Banka would have lived had he not taken the heroin. Id. at
886. The jury was instructed that the Government only had to prove that the heroin was a
contributing cause of death. Id. Burrage was convicted and received the enhanced penalty.
Id.
The Court of Appeals for the Eighth Circuit affirmed Burrages conviction on the basis
that the contributing-cause standard was consistent with its prior precedent. Id. The Supreme
Court granted certiorari to determine whether a defendant may be convicted under the results
from provision if the controlled substance was only a contributing cause of the death. Id.

Case 1:10-cr-00094-DB Document 377 Filed 05/07/14 Page 8 of 18

Appellate Case: 14-4093 Document: 01019355231 Date Filed: 12/12/2014 Page: 9

The Supreme Court first held that the enhancement is an element of the offense, which
must be found beyond a reasonable doubt. Id. at 887 (citing Alleyne v. United States, 133 S.Ct.
2151, 216263 (2013)). Therefore, there were two elements of Burrages crime: (i) knowing or
intentional distribution of heroin, 841(a)(1); and (ii) death caused by (resulting from) the use
of that drug, 841(b)(1)(C). Id. There was no dispute that Burrage had violated the first
element. Id. at 887 n.3. The question was whether Bankas death resulted from Burrages
distribution; in other words, whether the use of heroin was the actual cause of Bankas death in
the sense that 841(b)(1)(C) requires. Id. at 887.
The Supreme Court rejected the Eighth Circuits contributing cause standard by stating:
The language Congress enacted requires death to result from use of the unlawfully distributed
drug, not from a combination of factors to which drug use merely contributed. Id. at 891
(emphasis added). Instead, the Court held: at least where use of the drug distributed by the
defendant is not an independently sufficient cause of the victims death or serious bodily injury,
a defendant cannot be liable under the penalty enhancement provision of 21 U.S.C.
841(b)(1)(C) unless such use is a but-for cause of the death. Id. at 892 (emphasis added).
In this case, the foundation of MacKays sentence on Counts 1 and 2 depends on the
proper interpretation of the penalty enhancement provision of 841 specifically whether Mr.
Wiricks death resulted from the drugs prescribed by MacKay. The Supreme Courts
interpretation of that phrase in Burrage is the precise type of dramatic change in controlling
legal authority contemplated in Moore. Therefore, in accordance with the law of this Circuit
and consistent with the mandate of the Tenth Circuit, the Court will impose and explain a
sentence that is sufficient, but not greater than necessary for the sentencing purposes, in light of
Burrage.

Case 1:10-cr-00094-DB Document 377 Filed 05/07/14 Page 9 of 18

Appellate Case: 14-4093 Document: 01019355231 Date Filed: 12/12/2014 Page: 10

II.

Effect of Burrage on this Case

Having found Burrage to be a sufficient change in controlling legal authority and that
justice requires that Burrage is applicable here, the Court must now decide what effect, if any,
Burrage has on MacKays resentencing. At the close of MacKays trial, the Court instructed the
jury that it must decide on Counts 1 and 2 whether Mr. Wiricks death resulted from the use of
the drugs prescribed by MacKay. The jury was not given any further direction as to what
resulted from meant.
The Government argues that this Courts denial of MacKays Rule 29 Motion, and the
Tenth Circuits declaration on appeal that a reasonable jury could conclude beyond a reasonable
doubt that the oxycodone by itself and the hydrocodone by itself resulted in Wiricks death,
United States v. MacKay, 715 F.3d 807, 830 (10th Cir. 2013), constitute the law of the case and
are beyond reconsideration at resentencing.
The law of the case "doctrine posits that when a court decides upon a rule of law, that
decision should continue to govern the same issues in subsequent stages in the same case.
Arizona v. California, 460 U.S. 605, 618, 75 L. Ed. 2d 318, 103 S. Ct. 1382 (1983). The
doctrine has particular relevance following a remand order issued by an appellate court. "When
a case is appealed and remanded, the decision of the appellate court establishes the law of the
case and ordinarily will be followed by both the trial court on remand and the appellate court in
any subsequent appeal." Rohrbaugh v. Celotex Corp., 53 F.3d 1181, 1183 (10th Cir. 1995).
However, as with the mandate rule, three "exceptionally narrow" grounds justify
departing from the law of the case doctrine: "(1) when the evidence in a subsequent trial is
substantially different; (2) when controlling authority has subsequently made a contrary decision

Case 1:10-cr-00094-DB Document 377 Filed 05/07/14 Page 10 of 18

Appellate Case: 14-4093 Document: 01019355231 Date Filed: 12/12/2014 Page: 11

of the law applicable to such issues; or (3) when the decision was clearly erroneous and would
work a manifest injustice." McIlravy v Kerr-McGee Coal Corp., 204 F.3d at 1035.
The Court finds exceptions 2 and 3 to both be applicable here. Neither this Court nor the
Tenth Circuit had the benefit of Burrage, which has made a contrary decision of the law
applicable. In making such a finding, the Court need only look to the evidence regarding Counts
1 and 2 presented at trial. Dr. Frikkes autopsy report stated that each of the drugs present was
below the concentration range reported to cause death when it is the only drug present. Drs.
Grey and Hail opined that Mr. Wiricks death resulted from a combination of drug toxicities, and
Dr. Baden blamed pneumonia as the sole cause of Mr. Wiricks death. Not one of the four
medical experts testified that either the oxycodone or hydrocodone, acting alone, was a but-for
cause of Mr. Wiricks death. Had this Court had the advantage of knowing Burrage at the close
of MacKays trial, it certainly would have instructed the jury differently, and just as clearly
would have granted MacKays Motion for Judgment of Acquittal on Counts 1 and 2 inasmuch as
not only was the instruction insufficient, but so too was the evidence.
The Government also argues that Burrage has no effect because this Court did not give a
contributing factor instruction like the district court in Burrage. Further, the Government
contends the Supreme Courts declaration that but-for causation is the plain meaning of results
from, means it is safe to assume that the jury in this case must have arrived at the same
definition. MacKay in turn argues that Burrage demands a different result because the jury was
not given specific instructions on Counts 1 and 2 that resulting from requires but-for
causation.
The Court agrees with MacKay. In effect the Government asks the Court to find the
statutory interpretation skills of the common layperson juror equal to those of Justice Scalia. The

10

Case 1:10-cr-00094-DB Document 377 Filed 05/07/14 Page 11 of 18

Appellate Case: 14-4093 Document: 01019355231 Date Filed: 12/12/2014 Page: 12

Court is unable to make such a finding when this Court, the district court in Burrage, and the
Eighth Circuit, all failed to correctly deduce the plain meaning of resulting from. Whether
MacKay must face a 240-month mandatory minimum sentence of incarceration and be held
criminally liable for the death of another person depends on the interpretation of resulting
from. In such a situation, the Court has a duty to make sure the jurors got it right. Simply
providing the jurors with the resulting from language, without more, is not acceptable in light
of Burrage. Accordingly, the Court hereby vacates MacKays enhanced penalty convictions on
Counts 1 and 2.
III.

MacKays New Sentence

In post-Booker sentencing, the Court is obligated to engage in a three-step analysis: first,

the Court must correctly determine the advisory Guideline range; second, it must determine
whether any Guideline departures are warranted; and third, it must determine if a non-Guideline
sentence is reasonable under the factors of 18 U.S.C. 3553(a). Finally, the Court must
adequately explain its sentencing choice. Gall v. United States, 552 U.S. 38, 50 (2007) (citing
Rita v. United States, 551 U.S. 338 (2007). Having found that the enhanced penalties of Counts
1 and 2 are not applicable, the Court must now calculate a Guidelines sentence based on the
remaining offenses.
A. MacKays Sentence under the Sentencing Guidelines
Counts 1, 8, 9, 10, 11, 12, 13, 14, 18, 19, 20, 21 22, 23, 24, 25, 26, 32, 33, 34, 35, 41, 42,
81, 82, 83, 84, 120, 121, 123, 124, Distribution of a Schedule II Controlled Substance (21 U.S.C.
841(a)(l) and 21 U.S.C. 841(b)(1)(C)), are punishable by imprisonment up to 20 years.
Counts 2, 4, 5, 6, 7, and 108, Distribution of a Schedule III Controlled Substance (21 U.S.C.
841(a)(1) and 21 U.S.C. 841(b)(1)(E)) are punishable by imprisonment up to 10 years. The

11

Case 1:10-cr-00094-DB Document 377 Filed 05/07/14 Page 12 of 18

Appellate Case: 14-4093 Document: 01019355231 Date Filed: 12/12/2014 Page: 13

Guideline calculation for these counts is determined by the quantity of drugs involved in the
offense, adjusted for other relevant Guideline factors, and capped by any statutory maximum
sentence.
The amount of oxycodone, hydrocodone and methadone that MacKay prescribed in the
counts of conviction (based on the prescriptions admitted as Government [Trial] Exhibit 19)
produces the following result when applied to the Drug Quantity Table in the United States
Sentencing Guidelines ( 2D1.1):
Total oxycodone: 72,975 mg
1 g. oxycodone = 6700 g. marijuana
72,975 mg oxycodone = 488.93 kg marijuana
Total hydrocodone: 10,200 mg
1 g. hydrocodone = 500 g. marijuana
10,200 mg hydrocodone = 5.10 kg marijuana
Total methadone: 3,900 mg
1 g. methadone = 500 g. marijuana
3,900 mg methadone = 1.95 kg marijuana
Total: 495.98 kg marijuana = Base Offense Level 28.
The original PSR added two levels for abuse of a position of trust/use of special skill
pursuant to U.S.S.G. 3B1.3, which results in an adjusted Offense Level of 30. MacKay has no
prior juvenile or adult criminal history. A criminal history score of 0 results in a Criminal
History Category of I. The resulting advisory Guideline range is 97-121 months.
B. Whether a non-Guideline sentence is reasonable under the factors of
18 U.S.C. 3553(a)
As can be readily ascertained from the calculation performed in the preceding section, the
Guideline offense level of 28 is based almost entirely on the quantity of the controlled substances
involved. Given the nature and circumstances of the offense and the history and characteristics
of the defendant, the Court finds such an approach to be too broad and rigid to provide an
12

Case 1:10-cr-00094-DB Document 377 Filed 05/07/14 Page 13 of 18

Appellate Case: 14-4093 Document: 01019355231 Date Filed: 12/12/2014 Page: 14

effective method of determining the appropriate sentence in this case.

The Court finds the Guideline range of 97-121 months incarceration to be greater than
necessary to meet the sentencing purposes set forth in 18 U.S.C. 3553(a)(2). A quantity based
system may work as a general matter for street dealers (although, even there, the Sentencing
Commission is currently attempting to adjust the quantity-dependent drug sentencing guidelines
after receiving much public and judicial scrutiny of the importance placed on quantity alone1) but
it is too blunt an instrument for a case like this one. The unique facts and circumstances of this
case, with which the Court became intimately acquainted during the relatively lengthy trial of
this case, will be better suited for sentencing purposes by directly addressing the factors set forth
in 18 U.S.C. 3553.
i. 18 U.S.C. 3553(a)(1)
Pursuant to 3553(a)(1), our sentencing analysis begins with an examination of the
nature and circumstances of the offense and the history and characteristics of the defendant.
The offenses for which MacKay was convicted were of one kind: the illegal distribution of
controlled substances to his patients. The Governments case focused on nine people, each of
whom at some point became overly dependent on opioid medicines prescribed by MacKay. By
its very nature, the case presented the jury with the difficult task of first deciding if MacKays
1

Many factors support adoption of this modest amendment. When the drug
quantity tables were set at their current level, above the mandatory minimum penalties,
drug quantity was the primary driver of drug sentences. There was only one other
specific offense characteristic in the drug guideline. Now, there are sixteen specific
offense characteristics, including enhancements for violence, firearms, aggravating role,
and a whole host of other factors to help ensure that dangerous offenders receive long
sentences. Quantity, while still an important proxy for seriousness, no longer needs to be
quite as central to the calculation.
Chief Judge Patti B. Saris, Chair, United States Sentencing Commission, Remarks for Public
Meeting at 1-2 (April 10, 2014), available at http://www.ussc.gov/sites/default/files/pdf/
amendment-process/public-hearings-and-meetings/20140410/Chairs-Remarks.pdf .
13

Case 1:10-cr-00094-DB Document 377 Filed 05/07/14 Page 14 of 18

Appellate Case: 14-4093 Document: 01019355231 Date Filed: 12/12/2014 Page: 15

prescriptions left the legal terrain of medically-helpful pain management. Then, if the jurors
were persuaded that there was such a departure, they faced the perhaps even more difficult task
of deciding whether such behavior constituted a kind of medical malpractice, which, although
negligent, is not criminal, or whether the doctor had knowingly and intentionally left the field of
medicine altogether to become a criminal drug dealer. The boundaries between the mental states
that support each of these zones of human behavior are, to be sure, not always easy to
distinguish. In the end, the jury found sufficient proof to convict on 40 counts and acquitted on
44 others, often distinguishing between prescriptions to the same patient, which serves to
exemplify the conscientiousness of the jurys deliberations and the difficulty of their task. This
was not an easy case. It was a close one. There was no direct proof of the inner workings and
motivations of MacKays mind, no extrinsic admissions of a guilty mindset or other
unmistakable proof of a medical doctor deciding to become a criminal. But there was significant
circumstantial evidence against MacKay. There was evidence that showed him to be inattentive
to the conditions of his patients to the point that criminal culpability could rationally be found, as
it was. But it is also true that every one of the nine patients in question suffered from legitimate
pain and, to varying degrees, lied to their doctor. MacKay, as a criminal defendant, is certainly
unique and enigmatic. On the one hand he was presented as a respected medical doctor in the
small community of Brigham City, Utah, with many admirers who vigorously attest to his good
character. But it is equally true that he had, and has, his detractors and accusers.
To say the least, the nature and circumstances of MacKays offenses and his history and
characteristics are both troubling and complicated. To the extent the Government attempts to
depict MacKay as a despicable type of criminal, the Court disagrees. He has no prior criminal
history of any kind and his good works are many and cannot be overlooked. Furthermore,

14

Case 1:10-cr-00094-DB Document 377 Filed 05/07/14 Page 15 of 18

Appellate Case: 14-4093 Document: 01019355231 Date Filed: 12/12/2014 Page: 16

recognizing that the sentence imposed on MacKay must be just, the Court does not entirely
disregard the considerable negative impacts this case has already had on him and his family. He
has already lost standing in his community, faced the humiliation of a public trial, lost his job,
spent a great deal of money on his defense, and otherwise experienced major financial set backs,
and has no doubt suffered many emotional pains and negative health consequences that
accompany such a process. While it can be rightly said that in many respects he brought these
problems on himself, they cannot be completely forgotten when attempting to fashion a just
sentence.
ii. 18 U.S.C. 3553(a)(2)
Against this backdrop, the Court turns its attention to 3553(a)(2), which requires the
Court, in determining the particular sentence to be imposed, to consider . . . the need for the
sentence,
(A)

To reflect the seriousness of the offense, to promote respect for the law,
and to provide just punishment for the offense;

(B)

to afford adequate deterrence to criminal conduct;

(C)

to protect the public from further crimes of the defendant; and

(D)

to provide the defendant with needed educational or vocational training,

medical care, or other correctional treatment in the most effective
manner."

Id.
The Court will examine each of these purposes in turn.
1. (A) To Reflect the Seriousness of the Offense
There can be no question that the subject offense is serious. The Court takes judicial
notice of the fact that the abuse and misuse of prescription pain medication is a serious national
problem. And the danger posed by the misuse of opioid medications is clearly exacerbated by

15

Case 1:10-cr-00094-DB Document 377 Filed 05/07/14 Page 16 of 18

Appellate Case: 14-4093 Document: 01019355231 Date Filed: 12/12/2014 Page: 17

unscrupulous doctors and other medical professionals who improperly distribute, or aid and abet
their distribution, without any legitimate medical justification. An appropriate sentence must not
lose focus of the need to vigorously enforce the laws that prohibit the misuse of these potentially
dangerous drugs.
2. (B) To Afford Adequate Deterrence to Criminal Conduct
Because of the publicity this case received and the perception it has no doubt left on the
minds of many people, this case requires a prison sentence. Even though the Court sees no real
threat of recidivism from the defendant himself (see (C) below), it is important for the public at
large, and the medical community, in particular, to be reminded of the serious consequences that
will result when a medical doctor ceases being a medical doctor and becomes a drug dealer. The
deterrent effect on others is the most important reason why a significant period of incarceration
is necessary here.
3. (C) To Protect the Public
MacKay appears to the Court to present no serious threat of recidivism. He has no
criminal history. His medical license has been revoked which eliminates his ability to prescribe
controlled substances in the future. He is 66 years old and his health is poor. As pointed out
above, MacKay has suffered many serious consequences as a result of his criminal convictions.
Given his exemplary behavior in prison and his family, church and community associations, the
Court finds little or no reason to believe Mackay will engage in criminal behavior in the future.
4. (D) To Provide the Defendant with Training, Care and/or
Treatment
At present, MacKay has been incarcerated for approximately two years. During that time
he has been a model inmate. He has completed over 22 vocational, career, and academic courses
for nearly 1,000 hours of education. He has worked as a GED tutor and educational department
16

Case 1:10-cr-00094-DB Document 377 Filed 05/07/14 Page 17 of 18

Appellate Case: 14-4093 Document: 01019355231 Date Filed: 12/12/2014 Page: 18

clerk to assist other inmates to obtain their GED, improve literacy, and prepare them for a return
to society. He has obtained and maintained full-time employment while incarcerated. He gets
along with the staff and other inmates. He uses his leisure time to exercise daily, to read, to take
classes, and to participate in weekly church services by playing the piano, teaching lessons, and
singing in the choir. (Def.s Resentencing Mem. at 23.)
Furthermore, MacKays present health situation is not good. He suffers from diabetes,
coronary artery disease, hypertension, high cholesterol, obesity, gout and cirrhosis of the liver.
He was diagnosed with thyroid cancer and had his thyroid removed. He has had cardiac bypass
surgery, wrist surgery for carpel tunnel syndrome, prostate surgery, gastric bypass surgery,
surgery to insert a heart stent, and surgery to repair diabetic ulcers. Since his incarceration,
MacKay has suffered additional health problems including a retinal hemorrhage requiring
emergency eye surgery and an infected diabetic ulcer, which could lead to amputation of part of
his foot. On account of his many health problems, MacKay must take several medications on a
daily basis and is insulin dependent. (Def.s Resentencing Mem. at 22.) He claims the medical
care he receives in prison is far below the care he needs.
CONCLUSION
Taking into consideration all of the many facts and circumstances of this case and
the history and characteristics of the defendant, the Court finds that a 36-month period of
incarceration will be sufficient but not greater than necessary to comply with the purposes
discussed above. Accordingly, it is the judgment of the Court that the defendant, Dewey C.
MacKay, III, is placed in the custody of the United States Bureau of Prisons for a period of 36
months, with no period of supervision to follow.
Consistent with the Courts earlier sentence imposed on MacKay, his special assessment

17

Case 1:10-cr-00094-DB Document 377 Filed 05/07/14 Page 18 of 18

Appellate Case: 14-4093 Document: 01019355231 Date Filed: 12/12/2014 Page: 19

fee will remain at $4,000.00. An Amended Judgment reflecting this sentence will be entered
forthwith.
IT IS SO ORDERED.
DATED this 7th day of May 2014.

___________________________________
Dee Benson
United States District Judge

18

Appellate Case: 14-4093

Document: 01019355232

Date Filed: 12/12/2014

Page: 1

ATTACHMENT B
United States v. MacKay, 715
th
F.3d. 807 (10 Cir. 2013)
Opinion

Appellate Case: 14-4093

Document: 01019355232

Date Filed: 12/12/2014

807

U.S. v. MACKAY
Cite as 715 F.3d 807 (10th Cir. 2013)

from the Maoists. However, this argument essentially transforms the willful
blindness standard into an actual knowledge requirement. Petitioner presented
evidence that the government is aware of
and does not prevent the Maoists frequent
acts of torture. Petitioner does not need
to present evidence that the government
knows of the specific threat against him in
order to show that the government would
likely turn a blind eye to his torture if he
returned to Nepal. See Zheng v. Ashcroft,
332 F.3d 1186, 1196 (9th Cir.2003) (The
correct inquiry as intended by the Senate
is whether a respondent can show that
public officials demonstrate willful blindness to the torture of their citizens by
third parties, or as stated by the Fifth
Circuit, whether public officials would
turn a blind eye to torture. (quoting
OntunezTursios v. Ashcroft, 303 F.3d
341, 355 (5th Cir.2002))). The case the
government cites for support, CruzFunez
v. Gonzales, 406 F.3d 1187 (10th Cir.2005),
is distinguishable. There, the petitioners
faced a threat from a particular individual,
and there was no evidence that public officials were aware of or had acquiesced in
any previous acts of torture by this individual or his employees. See id. at 1192.
Under those circumstances, the fact that
the petitioners had not informed the government of the individuals threats against
them prevented the conclusion that the
government would acquiesce in whatever
actions the individual took against them.
Id. Here, on the other hand, Petitioners
evidence that the government regularly
fails to take action to prevent or punish
Maoist acts of torture makes this a very
different case.
The record as a whole simply does not
support the BIAs conclusion that Petitioner failed to show that public officials in
Nepal would likely acquiesce in his torture
by the Maoists if he returns to Nepal. We
accordingly grant the petition for review

as to Petitioners CAT claim as well.

However, we note that there has been no
agency factfinding on the likelihood that
Petitioner will be tortured if he returns to
Nepal, and on remand the agency may
consider whether Petitioner has shown a
sufficient likelihood of torture to be entitled to CAT relief.
III.

CONCLUSION

For the foregoing reasons, we GRANT

the petition for review, VACATE the
BIAs affirmance of the immigration
judges order, and REMAND for further
proceedings in accordance with this opinion.

,
UNITED STATES of America,
PlaintiffAppellee,
v.
Dewey C. MacKAY, III, Defendant
Appellant.
No. 124001.
United States Court of Appeals,
Tenth Circuit.
April 30, 2013.
Background: Defendant was convicted in
the United States District Court for the
District of Utah of unlawfully prescribing
controlled substances, and he appealed.
Holdings: The Court of Appeals, Baldock,
Circuit Judge, held that:
(1) there was sufficient evidence to support physicians convictions;
(2) statute prohibiting prescription of controlled substances without legitimate

Page: 2

Appellate Case: 14-4093

808

Document: 01019355232

Date Filed: 12/12/2014

715 FEDERAL REPORTER, 3d SERIES

medical basis was not void for vagueness;

(3) here was sufficient evidence that defendant stepped outside his role as
physician when he prescribed narcotics;
(4) there was sufficient evidence that oxycodone and hydrocodone that defendant prescribed caused patients death;
(5) admission of autopsy report without
testimony of medical examiner who
had performed autopsy was not plain
error;
(6) decision to qualify board certified toxicologist as expert was not plain error;
and
(7) limited remand was necessary to allow
district court to clarify sentence for
record.
Affirmed in part and remanded for resentencing.
1. Criminal Law O561(1)
No person shall be made to suffer
onus of criminal conviction except upon
evidence necessary to convince trier of fact
beyond reasonable doubt of existence of
every element of offense.
2. Criminal Law O1144.13(3, 5)
In assessing sufficiency of evidence to
support criminal conviction, Court of Appeals reviews evidence, both direct and
circumstantial, in light most favorable to
government.
3. Criminal Law O552(3), 562
To support criminal conviction, evidence, together with reasonable inferences
to be drawn therefrom, must be substantial, but it need not conclusively exclude
every other reasonable hypothesis and it
need not negate all possibilities except
guilt.

4. Criminal Law O1159.3(1)

Fact that prosecution and defense witnesses presented conflicting or differing
accounts at trial does not necessarily render evidence supporting criminal conviction insufficient.
5. Controlled Substances O82
There was sufficient evidence to support physicians convictions for unlawfully
prescribing controlled substances, despite
defendants contention that governments
expert witnesss testimony was only his
subjective opinion of defendants charting
practices, where expert testified that no
legitimate medical basis existed to prescribe medications in quantity and over
time span defendant prescribed to each
patient named in indictment, defendants
charts revealed such activities as early refills on prescriptions, lack of depth in examinations, and instances where defendant
recorded diagnosis without relaying that
information to patient, and patients confirmed experts testimony, and defendants
front desk receptionist testified that defendant signed prescriptions without seeing
patients on occasion.
Comprehensive
Drug Abuse Prevention and Control Act of
1970, 102(21), 302(b), 401(a)(1), 21
U.S.C.A. 802(21), 822(b), 841(a)(1); 21
C.F.R. 1306.04(a).
6. Constitutional Law O4506
Elemental to concept of due process is
assurance that criminal laws must give
person of ordinary intelligence fair notice
that his contemplated conduct is forbidden
by statute, and those that fail this test are
treated as no laws at all, but are void for
vagueness. U.S.C.A. Const.Amend. 5.
7. Constitutional Law O4509(9)
Controlled Substances O6
Controlled Substances Acts prohibition against prescribing controlled substances without legitimate medical basis
was not void for vagueness as applied to

Page: 3

Appellate Case: 14-4093

Document: 01019355232

Date Filed: 12/12/2014

U.S. v. MACKAY
Cite as 715 F.3d 807 (10th Cir. 2013)

licensed physician, where defendant had

several years of experience as doctor, defendant testified that doctor had responsibility to evaluate whether patient was adversely affected by prescriptions and to
make sure his patients were complying
with medication agreements, that he did
not look at certain controlled substance
database reports, and that he often did not
question his patients excuses for early
refills because he trusted them, even when
looking to the controlled substance database would have shown those patients
filled original prescription, and patient testimony revealed defendant did not conduct
follow-up examinations before writing prescriptions for refills.
Comprehensive
Drug Abuse Prevention and Control Act of
1970, 102(21), 302(b), 401(a)(1), 21
U.S.C.A. 802(21), 822(b), 841(a)(1).
8. Constitutional Law O4527(1)
Although Due Process Clause bars
courts from applying novel construction of
criminal statute to conduct that neither
statute nor any prior judicial decision has
fairly disclosed to be within its scope, it
does not bar government from filing
charges against defendant if his conduct is
within statutes scope, even when government has never filed such charges in past.
U.S.C.A. Const.Amend. 5.
9. Homicide O1165
There was sufficient evidence that
defendant stepped outside his role as
physician when he prescribed narcotics to
patient to support his conviction for unlawfully prescribing controlled substances
resulting in death, despite conflicting evidence as to whether defendant prescribed
to patient outside usual course of medical
practice and not for legitimate medical
purpose, in light of evidence that defendant generally failed to take adequate
medical histories and conduct physical exams, that patients regular physician had
spoken to defendant about patients

809

agreement that he would his only doctor,

that defendant was aware that patient
had previously overdosed on methadone
only two days after he prescribed methadone, that defendant saw 92 patients in
6.5 hours on day he prescribed oxycodone
and hydrocodone, and that quantity of
drugs defendant provided patient was inappropriate and more than necessary to
treat his pain until he could see his regular physician.
Comprehensive Drug
Abuse Prevention and Control Act of
1970, 102(21), 302(b), 401(a)(1), (b), 21
U.S.C.A. 802(21), 822(b), 841(a)(1), (b);
21 C.F.R. 1306.04(a).
10. Homicide O1174
There was sufficient evidence that oxycodone and hydrocodone that defendant
prescribed caused patients death to support his conviction for unlawfully prescribing controlled substances resulting in
death, even though chief medical examiner
testified that patient died as result of
combined effects of drug toxicities, specifically with oxycodone and diazepam as well
as bronchopneumonia, where board certified toxicologist testified that hydrocodone
and oxycodone were drugs that resulted in
patients death and that drug poisoning
occurred before patient developed pneumonia. Comprehensive Drug Abuse Prevention and Control Act of 1970,
102(21), 302(b), 401(a)(1), (b), 21
U.S.C.A. 802(21), 822(b), 841(a)(1), (b);
21 C.F.R. 1306.04(a).
11. Criminal Law O1035(10)
District courts admission of autopsy
report without testimony of medical examiner who had performed autopsy was not
plain error in prosecution for unlawfully
prescribing controlled substances, despite
possible Confrontation Clause violation,
where, without admission of autopsy report, jury still had sufficient evidence to
find defendant guilty. U.S.C.A. Const.

Page: 4

Appellate Case: 14-4093

810

Document: 01019355232

Date Filed: 12/12/2014

715 FEDERAL REPORTER, 3d SERIES

Amend. 6; Comprehensive Drug Abuse

Prevention and Control Act of 1970,
401(b), 21 U.S.C.A. 841(b).
12. Homicide O1174
There was sufficient evidence that patients death from overdose of oxycodone
and hydrocodone that defendant prescribed was reasonably foreseeable to support defendants conviction for unlawfully
prescribing controlled substances resulting
in death, where defendants chart contained notes from patients regular physician indicating that patients wife stated
that patient would take his medication in
inconsistent manner, often binging to point
of falling off toilet, patient had attempted
to obtain early refill from another doctor
in his regular physicians office, but that
doctor refused, defendant was aware that
patient had overdosed on methadone four
months earlier, defendant saw patient even
though he was on defendants do-not-see
list, and defendant wrote thirty-day prescription without contacting regular physicians office, even though he knew that
regular physician was only going to be
gone for three days. Comprehensive
Drug Abuse Prevention and Control Act of
1970, 401(b), 21 U.S.C.A. 841(b).
13. Criminal Law O1137(3)
Defendant charged with unlawfully
prescribing controlled substances resulting
in death forfeited claim that district court
did not fully inform jury of law regarding
proximate cause, where district court, on
multiple occasions, requested assistance in
drafting jury instruction at issue, and defendant failed to object to instruction.
14. Criminal Law O486(1)
Before admitting expert testimony,
district court must adequately demonstrate by specific findings on record that it
has performed its duty as gatekeeper
when faced with partys objection. Fed.
Rules Evid.Rule 702, 28 U.S.C.A.

15. Criminal Law O1036.6, 1139

Although Court of Appeals usually reviews de novo whether district court applied proper standard in admitting expert
testimony, where party fails entirely to
object to expert testimony at or before
trial, review is only for plain error. Fed.
Rules Evid.Rule 702, 28 U.S.C.A.
16. Criminal Law O1036.6
District courts decision to qualify
board certified toxicologist as expert and
allow jury to consider her testimony in
prosecution for unlawfully prescribing controlled substances resulting in death did
not rise to plain error, where defendant
did not challenge district courts decision
to allow witness to give expert testimony,
but rather argued that pathologist, instead
of toxicologist, would be appropriate person to provide testimony as to cause of
death, and nothing in record indicated witness lacked necessary training and experience to provide testimony on relationship
between drugs or poisons and patients
death.
Fed.Rules Evid.Rule 702, 28
U.S.C.A.
17. Criminal Law O1036.6
District courts decision to allow toxicologist to state that patients death resulted from or, in other words, patients
cause of death was because of, controlled
substances was not plain error in prosecution for unlawfully prescribing controlled
substances resulting in death, where witness did not tell jury that defendant was
guilty, but instead explained her observation based on evidence in case. Fed.Rules
Evid.Rule 704(a), 28 U.S.C.A.
18. Criminal Law O338(7)
In determining whether potentially
prejudicial evidence is properly admitted,
court must consider (1) whether evidence
was relevant, (2) whether it had potential
to unfairly prejudice defendant, and (3)

Page: 5

Appellate Case: 14-4093

Document: 01019355232

Date Filed: 12/12/2014

U.S. v. MACKAY
Cite as 715 F.3d 807 (10th Cir. 2013)

whether its probative value was substantially outweighed by danger of unfair prejudice.
Fed.Rules Evid.Rule 403, 28
U.S.C.A.

811

Party who raises subject in opening

statement opens door to admission of evidence on that same subject by opposing
party.

issue of whether defendant stepped outside

his role as doctor and became criminal
drug pusher, and exhibit was fair response
to defendants assertion in his opening
statement that he shifted from orthopedic
surgery to pain management because he
did not want folks in his community to
travel to receive treatment for chronic
pain.
Fed.Rules Evid.Rule 403, 28
U.S.C.A.

20. Criminal Law O338(7)

23. Criminal Law O1169.1(1), 1170(1)

19. Criminal Law O2183

Evidence is unfairly prejudicial if it

makes conviction more likely because it
provokes emotional response in jury or
otherwise tends to affect adversely jurys
attitude toward defendant wholly apart
from its judgment as to his guilt or innocence of crime charged. Fed.Rules Evid.
Rule 403, 28 U.S.C.A.
See publication Words and Phrases for other judicial constructions
and definitions.

21. Criminal Law O338(7)

In determining whether to admit potentially prejudicial evidence, it is not
enough that risk of unfair prejudice be
greater than probative value of evidence;
danger of that prejudice must substantially
outweigh evidences probative value. Fed.
Rules Evid.Rule 403, 28 U.S.C.A.
22. Controlled Substances O69
Criminal Law O2183
District court did not abuse its discretion in prosecution for unlawfully prescribing controlled substances in admitting exhibit showing annual rankings of states
top ten issuers of hydrocodone and oxycodone prescriptions during years in question, despite possibility that jury could
have been confused by exhibit and believed
that because defendant was number one
provider of hydrocodone in state, he must
have been prescribing hydrocodone not for
legitimate medical purpose to indictment
patients, where charts were relevant to

District courts decision whether to

admit or exclude evidence, is considered
harmless unless partys substantial right is
affected.
24. Controlled Substances O100(2)
Sentencing and Punishment O1490
Defendants 20-year sentence for unlawfully prescribing controlled substances
was not excessive, and thus did not violate
Eighth Amendments prohibition on cruel
and unusual punishment, where government prosecuted defendant for stepping
out of his role as doctor, becoming criminal
drug dealer, and prescribing controlled
substance that resulted in patients death,
and defendants sentence was at statutory
minimum, and below advisory Guideline
range. U.S.C.A. Const.Amend. 8; Comprehensive Drug Abuse Prevention and
Control Act of 1970, 401(b)(1)(C),
(b)(1)(E)(i), 21 U.S.C.A. 841(b)(1)(C),
(b)(1)(E)(i).
25. Constitutional Law O4702
Controlled Substances O6
Disparate scheduling under Controlled Substance Act between hydrocodone mixtures and oxycodone mixtures,
pursuant to which conviction for unlawfully
prescribing oxycodone mixture, a Schedule
II drug, mandated mandatory minimum
sentence of 20 years, but unlawfully prescribing hydrocodone mixture, a Schedule
III drug, carried no mandatory minimum

Page: 6

Appellate Case: 14-4093

812

Document: 01019355232

Date Filed: 12/12/2014

715 FEDERAL REPORTER, 3d SERIES

sentence, but instead had maximum sentence of 15 years, did not violate due process as applied to defendant convicted of
unlawfully prescribing hydrocodone and
oxycodone mixtures, despite defendants
contention that hydrocodone and oxycodone were substantially similar drugs,
used for same purposes, and caused similar effects. U.S.C.A. Const.Amend. 5;
Comprehensive Drug Abuse Prevention
and Control Act of 1970, 201(a),
401(b)(1)(C), (b)(1)(E)(i), 21 U.S.C.A.
811(a), 841(b)(1)(C), (b)(1)(E)(i).
26. Sentencing and Punishment O34
District court imposes illegal sentence
when it sentences defendant to term of
incarceration that exceeds statutory maximum.
27. Criminal Law O1181.5(8)
Sentencing and Punishment O1060
Limited remand was necessary in
prosecution for multiple counts of unlawfully prescribing controlled substances to
allow district court to clarify sentence for
record, where court sentenced defendant
to general 240month sentence of imprisonment, rather than specifying individual
sentences for each offense, and several of
defendants counts of conviction had maximum statutory term of imprisonment below 240 month statutory minimum term of
imprisonment for another count. U.S.S.G.
5G1.2, 18 U.S.C.A.

Peter Stirba (Nathan A. Crane and

Kathleen Abke with him on the brief),
Stirba & Associates, Salt Lake City, UT,
for Appellant.
* The Honorable William P. Johnson, United
States District Court Judge, District of New

Elizabethanne C. Stevens, Assistant

United States Attorney (David Barlow,
United States Attorney, with her on the
brief), Office of the United States Attorney, Salt Lake City, UT, for Appellee.
Before KELLY and BALDOCK, Circuit
Judges, and JOHNSON, District Judge.*
BALDOCK, Circuit Judge.
[13] The bedrock principle that no
person shall be made to suffer the onus of
a criminal conviction except upon TTT evidence necessary to convince a trier of fact
beyond a reasonable doubt of the existence
of every element of the offense is wellsettled in our criminal jurisprudence.
Jackson v. Virginia, 443 U.S. 307, 316, 99
S.Ct. 2781, 61 L.Ed.2d 560 (1979). We
frequently hear appeals from defendants
challenging the sufficiency of the evidence,
but all too often, defendants misunderstand the standard under which we review
their appeal. In application, we review the
evidence, both direct and circumstantial, in
a light most favorable to the Government.
United States v. Kieffer, 681 F.3d 1143,
1152 (10th Cir.2012). The evidence need
not convince a trier of fact beyond all
doubt, rather, the evidence need only
reasonably support the jurys finding that
the defendant is guilty of the offense beyond a reasonable doubt. Id. Importantly, we have repeatedly emphasized
that the evidence, together with the reasonable inferences to be drawn therefrom,
must be substantial, but it need not conclusively exclude every other reasonable hypothesis and it need not negate all possibilities except guilt. Id. (internal quotation
marks omitted). In the present appeal,
Defendant Dewey C. MacKay, III, whom a
jury convicted of unlawfully prescribing
controlled substances, challenges the suffiMexico, sitting by designation.

Page: 7

Appellate Case: 14-4093

Document: 01019355232

Date Filed: 12/12/2014

U.S. v. MACKAY
Cite as 715 F.3d 807 (10th Cir. 2013)

ciency of the evidence underlying several

counts of his conviction. He also challenges certain jury instructions, admission
of an exhibit and expert testimony, and the
legality of his sentence. Our jurisdiction
arises under 28 U.S.C. 1291 and 18
U.S.C. 3742. For reasons to follow, we
affirm the district courts judgment of conviction, but remand for resentencing.
I.
Defendant Dewey C. MacKay practiced
medicine in Brigham City Utah. Prior to
2001, Defendant focused his practice on
orthopedics. Trial Tr., 73, July 20, 2011.
But, because of his own health problems
and a desire not to see patients travel to
seek treatment, Defendant shifted his
practice to pain management. Id. at 74;
Trial Tr., 61, August 15, 2011. Defendant
maintained a busy practice. From 2001
through 2007, Defendant worked on Mondays and Wednesdays. Trial Tr., 75, July
20, 2011. Between the years 2005 and
2007, Defendant saw, on average, 80 to 100
patients in one day. Id. at 76. These
appointments lasted between two and five
minutes. Id. at 77, 141, 169. In March
2007, Defendant moved his pain clinic out
of the main orthopedic practice in which he
had been practicing. In the new office,
Defendant worked four days per week for
3.5 to 4 hours per day. Trial Tr., 71,
August 9, 2011. As part of this practice,
Defendant prescribed his patients opioids,
such as oxycodone and hydrocodone, both
of which are regulated by the Controlled
Substances Act.1
1. Oxycodone is a synthetic derivative of morphine and is a common ingredient in a number of pain medications such as Percocet.
Trial Tr., 42, July 27, 2011. OxyContin is the
time release form of oxycodone, meaning that
a person takes one pill and the medication in
that pill is released over a 12 hour period.
Id. Hydrocodone is a synthetic derivative of

813

A grand jury indicted Defendant on 129

counts, alleging various violations of the
Controlled Substances Act. Prior to trial,
the Government dismissed 45 counts.
Thereafter, the district court held a fiveweek jury trial on the remaining 84 counts.
At the close of the Governments case in
chief, Defendant moved for a judgment of
acquittal on all counts. The district court
denied the motion. Defendant renewed
his motion after all the evidence had been
presented. The district court took the motion as to counts 1 and 2 under advisement, but otherwise denied the motion.
Counts 1 and 2 related to a patient who
died, allegedly as a result of the prescriptions listed in the counts. The jury found
Defendant guilty on 40 counts, including
counts 1 and 2. Three counts were for
using a telephone in furtherance of drug
distribution, while 37 counts were for unlawfully distributing Schedule II and III
controlled substances. The district court
subsequently issued a written opinion denying Defendants motion for judgment of
acquittal as to counts 1 and 2.
Defendant then filed this appeal, raising
six issues.2 First, Defendant challenges
the sufficiency of the evidence supporting
the non-death counts. Second, Defendant
asserts the district court erred in denying
his motion for judgment of acquittal on
counts 1 and 2. This argument raises five
sub-issues: (1) whether the Government
proved the medications were not for a
legitimate medical purpose; (2) whether a
reasonable juror could find the patients
death resulted from the use of the controlled substances in counts 1 and 2; (3)
morphine and is the active ingredient in medications such as Lortab and Norco. Id. Oxycodone mixtures are Schedule II substances
and hydrocodone mixtures are Schedule III
substances.
2.

For clarity, we discuss these issues in a

different order than Plaintiffs opening brief.

Page: 8

Appellate Case: 14-4093

814

Document: 01019355232

715 FEDERAL REPORTER, 3d SERIES

whether the district court erred in considering an autopsy report as evidence separate and apart from a different medical
examiners testimony; (4) whether reasonable doubt existed that the patients death
resulted from the medications Defendant
prescribed; and (5) whether the patients
death was a reasonably foreseeable consequence of Defendants prescriptions and
whether the district court properly instructed the jury on reasonable foreseeability. Third, Defendant believes the district court erred in permitting Dr. Stacy
Hail, a toxicologist, to offer expert opinion
testimony. Fourth, Defendant posits the
district court erred in admitting Government Exhibit 133, a compilation of charts
showing the annual rankings in Utah of
the top ten issuers of hydrocodone and
oxycodone
prescriptions
from
2005
through 2009. Fifth, Defendant argues
the district court erred in sentencing Defendant to 20 years imprisonment on count
1. Sixth, and finally, Defendant contends
the district court committed plain error
when it imposed a general sentence of 240
months as to all the counts. We address
each argument in turn.
3.

Date Filed: 12/12/2014

Title 21 U.S.C. 841(a)(1) provides: Except as authorized by this subchapter, it shall

be unlawful for any person knowingly or intentionally(1) to manufacture, distribute, or
dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance. The penalty section provides that
any person who violates subsection (a) [of
841] shall be sentenced as follows: TTT In
the case of a controlled substance in schedule
I or II, TTT such person shall be sentenced to
a term of imprisonment of not more than 20
yearsTTTT 21 U.S.C. 841(b)(1)(C). The
statute further states that in the case of any
controlled substance in schedule III, such
person shall be sentenced to a term of imprisonment of not more than 10 yearsTTTT 21
U.S.C. 841(b)(1)(E)(i).

4. In his opening brief issue statement and

heading for the section, Defendant states he is
challenging the sufficiency of the evidence on

II.
The Controlled Substances Act prohibits
a person from dispensing or distributing a
controlled
substance.3
21
U.S.C.
841(a)(1). But a physician is exempt
from this prohibition as long as he is registered and acting as authorized. 21 U.S.C.
802(21), 822(b). For a controlled substance prescription to be effective, the prescription must be issued for a legitimate
medical purpose by an individual practitioner acting in the usual course of his
professional
practice.
21
C.F.R.
1306.04(a). Defendant challenges his
convictions relating to Michelle Russell,
Scott Blanscett, Kade Brown, Billy Ray
Cower, Allan Starr, Jennifer Johnson, and
Robert Stubblefield. In order to convict
Defendant on the applicable counts, namely 47, 1826, 3235, 4142, 8184, 108,
120121; and 123124 (the non-death
counts),4 the jury had to conclude beyond a
reasonable doubt that Defendant knowingly and intentionally prescribed the controlled substances to each of these patients
outside the usual course of medical practice or without a legitimate medical purpose.5 United States v. Nelson, 383 F.3d
1227, 1232 (10th Cir.2004).
counts 47, 1826, 3235, 4142, 8184, 108,
and 120124. He also requests in his conclusion to his opening brief that we vacate his
conviction on those counts. But, in one sentence of his opening brief, Defendant provides
a different set of counts which includes
counts 817, but excludes count 122. In his
reply brief, Defendant explicitly states he is
not appealing his conviction on counts 817.
Because Defendant, in his issue statement
and conclusion of his opening brief, as well as
in his reply brief, asks us to vacate the convictions only on counts 47, 1826, 3235, 41
42, 8184, 108, and 120124, those are the
counts we consider on appeal, with the exception of count 122, which never existed in the
indictment because of a numbering error.
5. We note the district court incorrectly instructed the jury they must find that the
defendant knowingly and intentionally prescribed the controlled substances outside the

Page: 9

Appellate Case: 14-4093

Document: 01019355232

Date Filed: 12/12/2014

U.S. v. MACKAY
Cite as 715 F.3d 807 (10th Cir. 2013)

[4] In conducting our de novo review,

we must examine whether, viewing the
evidence in the light most favorable to the
Government, any rational trier of fact
could have found the defendant guilty of
the crime beyond a reasonable doubt.
United States v. Cooper, 654 F.3d 1104,
1115 (10th Cir.2011) (internal quotation
marks omitted). We do not, however,
weigh conflicting evidence or consider
witness credibility. Id. Moreover, the
fact that prosecution and defense witnesses presented conflicting or differing
accounts at trial does not necessarily render the evidence insufficient. Id.
Defendant claims his case is unique because the Government did not charge him
with healthcare fraud, conspiracy, or any
other crime indicating a scheme by which
Defendant sought to gain from unlawful
prescribing. Defendant asserts the Government did not contend that every prescription Defendant wrote to the patients
listed in the indictment was unlawful.
Rather, Defendant believes the Government charged a violation of the Controlled
Substances Act based on insufficient details in Defendants charts for prescribing
to a particular patient on a particular day.
Defendant posits one doctors subjective
opinion of anothers charting practices is
not evidence of unlawful prescribing. Alternatively, Defendant contends that if the
evidence against him amounted to a criminal violation of the Controlled Substances
Act, his due process rights were violated
because the statute failed to provide him
bounds of professional medical practice and
not for a legitimate medical purpose. Jury
Instruction 16 (emphasis added); see also
Jury Instructions 20 and 22. In 2004, we
held that [a] practitioner has unlawfully distributed a controlled substance if she prescribes the substance either outside the usual
course of medical practice or without a legitimate medical purpose. Nelson, 383 F.3d at
123132 (emphasis added). This distinction
is unimportant in this case, however, because

815

with notice that his conduct was prohibited. Defendant argues that no other physician has engaged in analogous conduct and
been prosecuted. Therefore, he had no
way of knowing his conduct would subject
him to prosecution. In addition, he asserts the language outside the usual
course of professional medical practice
and without a legitimate medical purpose
is overly broad and vague.
The Government contends Defendant
waived his sufficiency challenge on the
non-death counts because of inadequate
development of any factual or legal issues.
But even if we review the challenge, the
Government argues Defendant cannot prevail. The Government cites evidence that
Defendant did not take adequate medical
histories, failed to conduct physical exams,
provided excessive quantities of drugs,
and provided prescriptions to patients he
never saw. The Government states patient visits were extremely short and consisted of Defendant asking the patient if
he or she wanted a refill, with no medical
examination or determination that the
drugs provided the patient any benefit.
The Government states Defendant provided prescriptions to his patients with
knowledge that the patient was doctor
shopping, abusing his or her medication,
had shared his or her medication, or had
taken Suboxone to treat narcotic abuse.6
The Government also cites to evidence
that Defendant provided early refills, saw
an excessive number of patients per day,
the evidence was sufficient for the jury to
conclude Defendant prescribed the controlled
substances outside the usual course of medical practice and without a legitimate medical
purpose.
6.

Suboxone is a synthetic opioid combined

with a narcotic antagonist. Trial Tr., 50, July
27, 2011. Suboxone treatments are used to
treat narcotic abuse. Id. at 138.

Page: 10

Appellate Case: 14-4093

Document: 01019355232

816

Date Filed: 12/12/2014

715 FEDERAL REPORTER, 3d SERIES

took no vital signs, and had cut and paste

entries on his medical charts.
We disagree with the Government that
Defendant waived his sufficiency challenge. We therefore turn to the merits of
Defendants claim. At trial, all seven of
these patients testified. In addition, Dr.
Bradford Hare, a pain management doctor, testified about his review of Defendants charts concerning those patients.
Although Defendant did not make an individual argument for each patient, we believe we must examine whether the Government provided sufficient evidence to
show Defendant prescribed controlled substances to each patient outside the usual
course of medical practice and without a
legitimate medical purpose.
A.
1.
We first look at the evidence the jury
heard regarding Michelle Russell, the patient involved in counts 47. Russell began seeing Defendant because of some tenderness in her wrist. Trial Tr., 101, July
27, 2011. Defendant found the tenderness,
but did no further exam and took no xrays. Defendant prescribed Lortab. Russell continued to see Defendant, but Defendant noted no further evaluation of the
wrist pain in her chart. Id. at 102. Another doctor referred her back to Defendant for possible carpal tunnel syndrome,
but Defendant continued to prescribe Lortab. At some point, Defendant added to
Russells chart that she was having lower
back pain, but the chart did not indicate
Defendant evaluated the back pain. Id. at
103. Defendant eventually diagnosed Russell with degenerative disc disease. Id. at
104. But the chart does not suggest that
Defendant conducted an examination or
ordered any tests, such as an M.R.I. scan
that would have justified that diagnosis.
Based on his review of the file, Hare con-

cluded no medical justification existed for

the prescriptions and that Defendant prescribed the Lortab for no legitimate medical purpose. Id. at 105.
Michelle Russell testified at trial. She
stated that although she told Defendant
she had wrist pain, she lied in order to get
medication. Trial Tr., 110, August 4, 2011.
Russell testified that Defendant grabbed
one of her wrists and examined it. He did
not run any tests and wrote Russell a
prescription. She testified she would not
have gone back to Defendant had he not
prescribed Lortab, but he did so on a
monthly basis. The only other time Defendant examined Russell was when she
complained about her back. Id. at 111.
The exam consisted of Russell standing up
and then bending over. During the time
Russell visited Defendant, she admittedly
was doctor shopping, which means she
received the same prescription from more
than one doctor. Id. at 116. Eventually,
the Drug Enforcement Administration
asked Russell to go undercover. At one of
these undercover visits, Defendant was already writing Russell a prescription for
Lortab when she walked into his office and
Defendant did not perform an exam or
inquire about her pain or medical condition. Id. at 12425.
2.
Counts 1826 involved Scott Blanscett.
Blanscett came to Defendants office complaining of an injury to one of his toes.
Trial Tr., 123, July 27, 2011. Defendant
prescribed Blanscett hydrocodone and
Lortab. Dr. Hare concluded Defendant
did not issue the drugs to Blanscett for a
legitimate medical purpose based on Defendants evaluation of the patient. Id. at
123. Prior to seeing Defendant, and
throughout the time Defendant was prescribing medication for Blanscett, Blanscett was receiving at least as much medi-

Page: 11

Appellate Case: 14-4093

Document: 01019355232

Date Filed: 12/12/2014

817

U.S. v. MACKAY
Cite as 715 F.3d 807 (10th Cir. 2013)

cation, if not more medication, from other

doctors. Id. at 125. Defendant did not
detect this. Hare was concerned about
the lack of follow-up information, and no
indication that Blanscett was deriving any
benefit from the prescriptions. Id. at 126.
Hare noticed a number of early refills
when the direction on the prescriptions
would indicate a certain duration for the
prescription. Id. at 130. Hare testified
Blanscett sometimes would use his medications twice as fast as prescribed. Blanscett claimed to have lost prescriptions,
but the controlled substance database
maintained by the Utah Division of Occupational and Professional Licensing
showed Blanscett had in fact filled the
prescription. Defendant did not draw any
controlled substance database samples
during the time he was treating Blanscett.
Id. at 134. Defendant eventually detected
Blanscetts abuse, but not until the end of
their time together.
Blanscett testified that he went to see
Defendant for his toe. Trial Tr., 146, August 1, 2011. Defendant looked at his toe
and gave him a prescription for hydrocodone, but nothing in the medical record
indicates Defendant prescribed hydrocodone on that first visit. Blanscett testified
Defendant did not take any kind of history
and did not listen to his heart. Id. at 148.
Defendant also prescribed Blanscett Percocet in April 2006, though it was not
indicated on his medical chart. Id. at 149.
During this time period, Blanscett admitted receiving OxyContin and hydrocodone
from other doctors. Id. at 153. The Government asked Blanscett why he kept going back to see Defendant. Blanscett responded, Because I could. Defendant
did x-ray Blanscetts ankle and told Blanscett he did not have a major tear or
7. If a physician believes that a neurologic
examination is not needed on a patient because that patient seems to walk and talk
pretty normally and moves around pretty nor-

break. Id. at 155. Blanscett testified that

he once received a prescription from Defendant without seeing him. Id. at 164.
Blanscett called Defendant and told him he
needed a refill and Defendant said he
would drop it off at the Brigham City
emergency area place there for Blanscett
to pick up. Id. at 165. The prescription
was in an envelope, pinned to a corkboard
in the hospital.
3.
Kade Brown is the patient relating to
counts 3235 of the indictment. Hare testified Defendant, in his physical examination of Brown, believed Brown was neurologically intact.7 Trial Tr., 112, July 27,
2011. The medical record does not provide any indication of what tests Defendant performed to make the determination
that Brown was neurologically intact.
Hare stated he would expect to see that
information in the chart. Defendant prescribed Brown OxyContin. Hare believed
the specific dosage was too high for the
patient. Id. at 113. Hare further testified
that Defendant did not have a legitimate
medical purpose in prescribing the OxyContin.
Later, Defendant diagnosed
Brown with degenerative disc disease, but
Hare could find no evidence in the chart
that Defendant had been able to diagnose
that disease. Id. at 117. Moreover, Hare
saw no evidence in the chart that Defendant had received diagnoses from other
physicians in consultation that provided a
basis for the diagnosis. Hare concluded
that each of the prescriptions Defendant
prescribed for Brown were not issued for a
legitimate medical purpose. Id. at 120.
Kade Brown testified that, at his first
visit to Defendant, Defendant did not run
mally TTT the patient seems to be neurologically intact, which means the nervous system
seems to be functioning normally. Trial Tr.,
66, July 27, 2011.

Page: 12

Appellate Case: 14-4093

818

Document: 01019355232

Date Filed: 12/12/2014

715 FEDERAL REPORTER, 3d SERIES

tests, did not take his blood pressure, did

not listen to his heart, did not listen to his
lungs, did not look in his throat or nose,
did not take his temperature, and did not
take his weight. Trial Tr., 28, July 22,
2011. Instead, Defendant poked [his]
back and kind of touched [his] back.
Browns second visit was for a refill of the
OxyContin. At the follow up visit, Defendant again did not take any history, run
any tests, or check any vitals. Id. at 31.
Brown testified that at subsequent visits,
Defendant didnt do anything. He just
came in and said hi and we talked for a
minute and I got the refills. Id. at 33.
Twelve days after his third visit, Brown
had taken all of his 30day supply of OxyContin, so he returned for a refill. Id. at
34. Defendant gave Brown another full
prescription at that time. The next
month, Defendant doubled Browns dosage. Id. at 35. Brown testified nothing
was different with respect to that visit.
Although Defendant talked to Brown
about performing an M.R.I. scan, Brown
never had one done. Id. at 36. Brown
stated that he could not afford the scan.
Id. at 103. At one point, Brown and Defendant talked about Brown doctor shopping because Brown had received a prescription from an instacare facility. Id.
at 38. Defendant cautioned Brown and
they agreed Brown would not doctor shop.
Id. at 39. Despite Brown having previously signed a controlled substances contract
with Defendant, a document agreeing that
a specific physician will be the only provider of medication for a patient, Defendant
did not terminate Brown as a patient. Defendant did not change his medication or
dosage or place Brown under any limitations. Id. at 40. On March 13, Defendant
prescribed Brown OxyContin 40 and Lortab. He went through those medications
quickly and came back 13 days later. Id.
at 45.

Even though Defendant noted in

Browns chart that Brown had degenerative disc disease, Defendant never relayed
this diagnosis to Brown. Id. at 46. Moreover, Brown never had an M.R.I. scan or
x-ray of his back. Brown continued to go
through his monthly supply of medications
quickly and returned consistently before
his monthly appointment. Id. at 47. Defendant continued to prescribe Brown full
prescriptions despite the shortened time
period between appointments. Id. at 48.
To make matters worse, Browns insurance had stopped paying for the pain medication. He began selling some of the
medication in order to pay for the drugs.
Id. at 49. When he would run out of pills
and could not see Defendant, Brown would
turn to heroin. On one occasion, Brown
had gone through his pills in eight or nine
days because he sold them. Id. at 51.
Brown told Defendant that he threw them
away because they were too strong.
Brown testified Defendant told him people like us dont throw pills away. Id. at
52. Brown took that statement to mean
an addict, a junkie. Defendant refilled
his prescription, but gave him 60 pills of a
lower dose. Brown returned twelve days
later after he had gone through all the
pills. Defendant provided Brown with a
prescription for 90 pills. Once Defendant
moved into his new office, the process
moved faster. Id. at 59. Brown would
check in at the front desk. Then someone
would call him back and Defendant was
ready to see him. The visit would take
place with the same introduction. Hi.
How are you? Refills? Yes. Any problems? No. Then he would write it out or
they would already be written out, and
then I would take them and go. Id.
4.
Counts 41 and 42 relate to Billy Ray
Cower. Again, Hare testified that Defendant did not have a legitimate medical

Page: 13

Appellate Case: 14-4093

Document: 01019355232

Date Filed: 12/12/2014

819

U.S. v. MACKAY
Cite as 715 F.3d 807 (10th Cir. 2013)

purpose to issue the prescriptions to Cower. Trial Tr., 135, July 27, 2011. Hare
believed Defendant prescribed Percocet to
Cower based on the diagnosis of Osgood
Schlatter disease, a condition sometimes
known as growing pains among adolescents. Id. at 136. Hare stated this condition is an intermittent problem, and not a
continuous chronic pain problem. Hare
suggested that at no point did Defendant
have adequate information to prescribe
him controlled substances. Id. at 13637.
Over time, the number of Percocet pills
increased. Id. at 137. Nothing in Cowers
medical chart showed that the medication
provided Cower any benefit. In December
2007, a message on Defendants answering
machine alerted Defendant that Cower
was receiving Suboxone treatments. Id. at
138. A subsequent notation from January
2007 indicated that Defendant would step
aside to let Cower continue the Suboxone
treatment. Cower, however, requested oxycodone and Defendant obliged him.
Cower testified that at his first visit, he
told Defendant he had been diagnosed
with OsgoodSchlatter when he was younger. Trial Tr., 176, July 28, 2011. Defendant examined Cowers knees and then
Defendant asked Cower if he needed anything for pain. Other than stating he had
OsgoodSchlatter disease, Cower provided
no other history to Defendant. Defendant
did not check Cowers blood pressure,
weight, heart, or lungs. Id. at 17778. At
later visits, Cower would go in to a room,
Defendant would ask if he needed a refill,
then Defendant would write the prescription and Cower would leave. Id. at 178.
Defendant never performed an exam or
took vitals before increasing a dosage. Id.
at 182. Defendant wrote in Cowers chart
that he suffered from degenerative arthritic knees, but never told Cower of the
diagnosis. Id. at 181.

Cower began feeling nauseous if he

stopped taking his medication. Id. at 185.
He had cold sweats and could not sleep.
He was shaky, had diarrhea, and felt like
he had the worst flu he had ever had in his
life. Defendant never explained the consequences of withdrawing from the medication to Cower and never developed a
treatment plan. Once Defendant moved
into his new office, Cowers visits became
shorter. Id. at 186. Cower would walk in,
pay his co-pay and sit down for a few
minutes. Then he would be called into the
office and asked if he needed a refill.
Cower would then leave after obtaining the
refill.
5.
Hare also reviewed patient Allen Starrs
medical chart. Starr was the patient
named in counts 8184 of the indictment.
Hare believed Defendants evaluation of
Starrs history, physical examination, and
follow-up treatment was inadequate to
support the prescription of the amount of
opioid medications. Trial Tr., 148, July 27,
2011. Starr was eighteen years old and
had back pain for four months before seeing Defendant. His x-rays were normal
and he was neurologically intact. Id. at
149. Hare believed Starrs family pushed
to get Starr on opioids. Defendant escalated the amount of methadone he prescribed to Starr without explaining in the
chart why he changed the dose. Id. at
150. By the time Starr turned 20 years
old, Defendant diagnosed him with degenerative disc disease, but Hare stated nothing in the medical record supported that
diagnosis. Id. at 152.
Starr testified he asked Defendant about
OxyContin on the first visit. Trial Tr.,
153, August 3, 2011. Defendant told him
he had never prescribed OxyContin for an
18 year old. Starrs stepmother then
asked about methadone. Defendant pro-

Page: 14

Appellate Case: 14-4093

Document: 01019355232

820

Date Filed: 12/12/2014

715 FEDERAL REPORTER, 3d SERIES

vided him with methadone without performing a physical examination. Id. at

152. Defendant did not warn Starr about
the effects of methadone. Id. at 153. One
summer, Starr worked in New Mexico.
Id. at 161. Starr obtained four prescriptions for methadone from Defendant without returning to Utah. Starr said he
would arrive at Defendants office, sit
down at his table, and Defendant would
ask if Starr needed a refill. Id. at 163.
Defendant would write Starr a refill without examination and Starr would leave.
Id. at 164. Defendant eventually added
Lortab to Starrs prescription of methadone, but after the Lortab made Starr
sick, Starr switched to Percocet. Id. at
16465.
Starr left Utah and did not see Defendant for over one year. Id. at 180. When
Starr returned, Defendant had moved to
his new office. Defendant did not run any
new tests and did not tell Starr he was
diagnosing him with degenerative disc disease. Id. at 18081. Starr did not provide
Defendant with the M.R.I. scans that other
doctors had ordered during the year away.
Id. at 181. Once Defendant moved to his
new office, Starr would sit down and explain how he was feeling more pain and
Defendant would write a refill. Id. at 183.
Starr would then leave.
6.
Jennifer Johnson was the patient named
in count 108. Hare testified Defendant did
not prescribe the controlled substances
listed in the indictment for a legitimate
medical purpose. Trial Tr., 157, July 27,
2011. Hare said Defendants initial evaluation of Johnson was inadequate to support the prescribing of the controlled substances.
And as Johnson proceeded
through treatment with Defendant, Hare
believed the fact that she was obtaining
medications from many doctors simulta-

neously to his prescribing was evident.

Defendant noted in Johnsons chart at the
initial visit that Johnson stated the only
medication she was taking was Xanax. Id.
at 158. A check of the controlled substances database at the time would have
showed she was obtaining hydrocodone
pretty continuously for several years prior from another doctor. In another patients chart, Johnson was labeled as a
doctor shopper. This note from April 23,
2008 indicated that Defendant said he
talked to Johnson, but the subject is not
noted in Johnsons chart. Id. at 159. Approximately four to six weeks later, another indicator from the narcotics strike force
appeared in Johnsons file that she was
continuing to get prescriptions from other
providers. At that point, Defendant stated
he would not see her again. Id. at 160.
Defendant, however, continued to prescribe Johnson Aprazolam, an abusable
substance, through November 2008 and
prescribed Lortab once in November 2008.
Johnson testified that Defendant did
look at x-rays taken by an emergency
room physician and asked about a car accident. Trial Tr., 125, July 28, 2011. Defendant did not weigh Johnson, did not
take her blood pressure, did not listen to
her heart or to her lungs, did not take her
temperature, and did not look in her
mouth, ears, or nose. Id. at 12526. Defendant looked at her back and pressed on
parts of her back and prescribed her Lortab. Id. at 12627. When Defendant
practiced in his old office, Defendant would
ask her if she needed a refill and she
would say yes. Id. at 128. Defendant
would write out the prescription, talk into
a recorder, and record what transpired at
the visit. Defendant did not perform any
evaluations at subsequent visits, even
when he doubled her dosage. Id. at 128,
132. Defendant diagnosed Johnson with
degenerative disc disease, but never informed her of the diagnosis. Id. at 135.

Page: 15

Appellate Case: 14-4093

Document: 01019355232

Date Filed: 12/12/2014

821

U.S. v. MACKAY
Cite as 715 F.3d 807 (10th Cir. 2013)

In November 2008, Johnson attempted to

commit suicide by cutting her wrist. Id. at
14142. After leaving the emergency
room after being treated for the suicide
attempt, Johnson walked to Defendants
office and scheduled an appointment for a
few days later. At the appointment, Defendant did not ask her what had been
happening in her life, did not ask her
about the emergency room visit, and did
not mention the bandage on her hand. Id.
at 142. Defendant asked Johnson whether
she was still taking Suboxone and she said
no. He then provided her with Lortab.
During the 2008 period, Johnson was taking 25 to 50 Lortab pills per day. Id. at
143.
7.
Finally, we turn to patient Robert Stubblefield, who was the subject of counts
120121 and 123124 of the indictment.
Hare again concluded Defendant did not
issue the prescriptions to Stubblefield for a
legitimate medical purpose. Trial Tr., 161,
July 27, 2011. Hare said Stubblefield was
25 years old and had back pain from a
recent fall and some diffuse tenderness.
Id. at 162. Stubblefield was neurologically
intact. Although Hare said short-term
prescriptions may have been justified, a
long-term prescription of increased doses
of pain medication with no further evaluation was not justified. Stubblefield began
doctor shopping. Defendant wrote in
Stubblefields chart that he would be willing to see him if he was the only prescriber. Id. at 163. Defendant told Stubblefield he would check the database every
other visit. But Hare testified no one in
the office ran a check of the database. In
addition, Defendant prescribed early refills
for Stubblefield. Trial Tr., 10, July 28,
2011. In November 2006, Defendant prescribed OxyContin and Percocet to Stubblefield. He returned two weeks later and
Defendant refilled the same medication

with really no indication of any further

problems or issues. Id. Hare described
this use of Stubblefields medication as a
fairly continuous pattern. Id. at 11.
Stubblefield testified that at his first
visit to Defendant, Defendant did not take
a medical history or perform a physical
examination before giving him a prescription for Percocet. Trial Tr., 6364, July
29, 2011. At the second visit, Defendant
told Stubblefield that he had not yet received his medical records, but if he needed a refill, he would write a prescription.
At the third visit, Defendant increased
Stubblefields dosage. Id. at 65. Defendant had Stubblefield sign a controlled
substances agreement. But the next notation in the chart is a conversation regarding Stubblefields arrest for falsifying a
prescription and Stubblefields problems
with doctor shopping. Id. at 6768. Defendant did not terminate the relationship
and continued prescribing for Stubblefield.
Id. at 68. As to his early refills, Stubblefield said he would call the office to make
an early appointment. He said, [m]aybe
once it became an issue that we were
early, but we would do it every month.
Id. at 84.
B.
[5] Defendant asserts the Governments chief evidence was Dr. Hares subjective opinion of Defendants charting
practices, which does not amount to unlawful prescribing. The jury did not convict
Defendant for failing to chart correctly.
Hare looked at Defendants charts. He
explained to the jury that no legitimate
medical basis existed to prescribe the medications in the quantity and over the time
span Defendant prescribed to each indictment patient in this appeal. The charts
revealed such activities as early refills on
prescriptions, lack of depth in examina-

Page: 16

Appellate Case: 14-4093

822

Document: 01019355232

Date Filed: 12/12/2014

715 FEDERAL REPORTER, 3d SERIES

tions, and instances where Defendant recorded a diagnosis without relaying that
information to the patient. Accordingly,
the evidence to support his conviction
came from the information gleaned from
the charts, not one doctors subjective
opinion of anothers charting practices.
Defendant additionally contends Hare
did not testify the medications Defendant
prescribed were incorrect to treat each
patients pain or that the quantity was
unreasonably high. We disagree. Hare
testified that no medical justification existed for the prescriptions Defendant wrote
Russell and that Defendant prescribed the
Lortab outside of a legitimate medical purpose. Trial Tr., 105, July 27, 2011. Hare
testified Blanscett was receiving narcotics
from other doctors and that Defendant
was providing early refills without any indication the medications were helping
Blanscett. Id. at 12526, 130. Hare stated Defendants prescribed dosage for
Brown was too high. Id. at 112. As to
Cower, Hare believed Defendant never
had adequate information or a diagnosis to
allow Defendant to initiate the prescribing
of controlled substances. Id. at 13637.
Hare stated no information supported prescribing the amount of opioid medications
Defendant prescribed to Allen Starr. Id.
at 148. As to Johnson, Hare found inadequate support to justify prescribing controlled substances and added that a check
of the controlled substances database
would have shown she was obtaining hydrocodone on a regular basis. Id. at 157
58. Finally, Hare testified that long-term
prescribing of increased doses of pain
medication to Stubblefield with no further
evaluation was unjustified. Id. at 162.
Defendant further argues the Government is unable to point to any specific
evidence that shows Defendant stepped
out of his role as a physician and into that
of a criminal drug dealer. But the above

trial testimony reveals the Government did

present evidence as to each patient named
in the non-death counts. Dr. Hare stated
that Defendant prescribed to each patient
without a legitimate medical purpose.
And each of these patients backed up
Hares testimony. Moreover, the front
desk receptionist testified that on two days
when Defendant was sick, she gathered
the charts for that day and another staff
member took the prescription pad to Defendants home. Trial Tr., July 20, 2011,
16465. The receptionist saw the staff
member return with the charts and prescriptions that Defendant signed. Id.
The receptionist did not cancel the appointments. Instead, she greeted the patients and put them in a room. Id. at 166.
A staff member would go into the room
and give the prescription to the patient
and say that Defendant was ill that day.
Id. The patient would leave, check out at
the back desk, and make his or her next
monthly appointment. Id.
Despite the above facts, Defendant attempts to distinguish the facts of his case
from two cases in which he states the
physician engaged in blatant criminal conduct. In the first case, United States v.
Moore, 423 U.S. 122, 96 S.Ct. 335, 46
L.Ed.2d 333 (1975), the Supreme Court
determined persons registered under the
Controlled Substances Act could be prosecuted under the Act. The Supreme Court
stated Moore had conducted a large-scale
operation. Id. at 126, 96 S.Ct. 335.
Three District of Columbia pharmacies
filled 11,169 prescriptions from Moore over
a 5.5 month period. On 54 days during
that time period, Moore wrote over 100
prescriptions a day. Moore billed his patients using a sliding-fee scale based on
the quantity prescribed. Moore gave his
patients only the most perfunctory examination, consisting of a request to see the
patients needle marks and an unsupervised urinalysis. Id. Moore performed no

Page: 17

Appellate Case: 14-4093

Document: 01019355232

Date Filed: 12/12/2014

823

U.S. v. MACKAY
Cite as 715 F.3d 807 (10th Cir. 2013)

physical exams at follow up appointments,

did not keep accurate records, did not
record the quantity of drugs prescribed,
and did not supervise the administration of
the drug.
Defendant also cites United States v.
Feingold, 454 F.3d 1001 (9th Cir.2006).
Feingold prescribed controlled substances
to patients he never physically examined.
He did not record the medical basis for
prescribing the drugs in his patients medical charts. Feingold prescribed controlled
substances to recovering addicts and prescribed in excess of the maximum dosages
he recommended. In one case, Feingold
prescribed more than 3,000 pills to a patient in a single month. Two of Feingolds
patients were undercover DEA agents.
Even with all of this evidence, Feingold
insisted he had been prescribing the drugs
in good faith to help his patients manage
their pain. Id. at 1006.
Defendant attempts to distinguish his
case by arguing that all of the indictment
patients were his actual patients and not
undercover law enforcement, although two
of his patients later became confidential
informants. Defendant further reasons all
of the prescriptions at issue were in the
context of a regular doctor visit and no
evidence suggested that he ever charged
based on the number of prescriptions or
the quantity or type of medications. Defendant fails to see his conduct is similar to
the defendants conduct in the cases he
cites. Neither the Supreme Court in
Moore, nor the Ninth Circuit in Feingold
stated that a specific set of facts had to be
present in order to find that a physician
stepped outside of his role and issued prescriptions without a legitimate medical
purpose. Both cases looked to the facts in
the record to conclude enough facts exist8.

Defendant argues that the language, outside the usual course of professional medical
practice and without a legitimate medical

ed for a fact finder to affirmatively determine that the physician issued the drugs
for an improper purpose. Defendant argues that his patients legitimately experienced pain. Even assuming each patient
had pain, a doctor may still prescribe medications without a legitimate medical purpose. Hares testimony, as well as the
testimony of the patients, illustrates this
very point.
Viewing the evidence in the light most
favorable to the Government, we conclude
the evidence in this case is quite sufficient
to support Defendants convictions on the
non-death counts. See Moore, 423 U.S. at
142, 96 S.Ct. 335 (evidence that the defendant physician gave inadequate physical
examinations or none at all, took no
precautions against [prescription] misuse
or diversion, and did not regulate TTT
dosage was sufficient to prove that conduct exceeded the bounds of professional
practice ); Feingold, 454 F.3d at 1004
05 (evidence was sufficient where doctor
prescribed large quantities of controlled
substances without conducting physical
examinations or recording bases for the
prescriptions in medical charts overwhelmingly demonstrated his disregard
for proper prescribing practices); United
States v. Tran Trong Cuong, 18 F.3d
1132, 1139 (4th Cir.1994) (holding evidence sufficient to support conviction
where doctor prescribed pain medication
for nebulous ailments after superficial
physical examinations).
C.
[6] We now address Defendants alternative argument that the Controlled Substances Act failed to provide him with fair
notice and that the statute is vague.8
purpose, is so broad that it can encompass a
great deal of lawful conduct. To the extent
Defendant attempts to attack the statute as

Page: 18

Appellate Case: 14-4093

824

Document: 01019355232

Date Filed: 12/12/2014

715 FEDERAL REPORTER, 3d SERIES

Elemental to our concept of due process

is the assurance that criminal laws must
give a person of ordinary intelligence fair
notice that his contemplated conduct is
forbidden by the statute, and those that
fail this test are treated as no laws at all:
they are void for vagueness. United
States v. Lovern, 590 F.3d 1095, 1103 (10th
Cir.2009) (quoting Colautti v. Franklin,
439 U.S. 379, 390, 99 S.Ct. 675, 58 L.Ed.2d
596 (1979)). A vagueness challenge to a
statute that does not involve the First
Amendment must be examined in light of
the facts of the case at hand. Vill. of
Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495 n. 7, 102 S.Ct.
1186, 71 L.Ed.2d 362 (1982). Defendant
argues no other physician who conducted
himself or herself in the same manner has
ever been prosecuted under the Controlled
Substances Act. Accordingly, he could not
know he engaged in prohibited conduct.
Despite his emphatic stance, Defendant acknowledges one factually analogous case,
but dismisses its importance because the
Eleventh Circuit reversed and remanded
the defendants conviction on all counts.
United States v. Ignasiak, 667 F.3d 1217
(11th Cir.2012). Unfortunately for Defendant, before the Eleventh Circuit announced it reversed because of a Confrontation Clause issue, the court stated the
evidence was sufficient to support the Defendants conviction. Id. at 1229.

[7, 8] As applied to Defendant, the

Controlled Substances Act is not vague.
Ignasiak aside, we conclude Defendant
had notice the statute prohibited his conduct based on our own circuit case law.9
United States v. Jamieson, 806 F.2d 949,
951 (10th Cir.1986) (prescribing doctor
gave drugs when patients asked for them
and wrote prescriptions when patients
took drugs more frequently than directed);
United States v. Varma, 691 F.2d 460, 464
(10th Cir.1982) (prescribing doctor took incomplete medical histories and gave short
and inadequate physical examinations).
Defendant had several years of experience
as a doctor. At trial, Defendant testified
that a doctor has a responsibility to evaluate whether a patient is adversely affected
by prescriptions and to make sure his patients are complying with medication
agreements. Trial Tr., 70, August 16,
2011. Defendant also admitted at trial
that he did not look at certain controlled
substance database reports. Id. at 83, 85,
98, 106. Further, he often did not question his patients excuses for early refills
because he trusted them, even when looking to the controlled substance database
would have shown those patients filled the
original prescription. Id. at 83. Patient
testimony revealed Defendant did not conduct follow-up examinations before writing
prescriptions for refills. A reasonable jury
could find Defendant knowingly prescribed
controlled substances outside the usual

overbroad using the regulatory language, we

disagree. [O]utside the limited First Amendment context, a criminal statute may not be
attacked as overbroad. Schall v. Martin,
467 U.S. 253, 268 n. 18, 104 S.Ct. 2403, 81
L.Ed.2d 207 (1984).

cuted is simply untenable. Although the Due

Process Clause bars courts from applying a
novel construction of a criminal statute to
conduct that neither the statute nor any prior
judicial decision has fairly disclosed to be
within its scope, United States v. Lanier, 520
U.S. 259, 266, 117 S.Ct. 1219, 137 L.Ed.2d
432 (1997), the Due Process Clause does not
bar the Government from filing charges
against a defendant if his conduct is within
the scope of the statute, even when the Government has never filed such charges in the
past.

9. Even though we conclude Supreme Court

and circuit precedent foreclose Defendants
due process argument, we must address Defendants underlying premise of this argument. Defendants assertion his due process
rights were violated because he was the first
doctor engaging in this conduct to be prose-

Page: 19

Appellate Case: 14-4093

Document: 01019355232

Date Filed: 12/12/2014

825

U.S. v. MACKAY
Cite as 715 F.3d 807 (10th Cir. 2013)

course of medical practice and without a

legitimate medical purpose. Based on the
record, we cannot say Defendant was the
victim of a law he did not understand.
III.
Next, Defendant argues the district
court erred in denying his motion for
judgment of acquittal on counts 1 and 2.
Recall count 1 alleged Defendant prescribed oxycodone in violation of the Controlled Substances Act to David Wirick,
resulting in Wiricks death and count 2
alleged Defendant prescribed hydrocodone
in violation of the Controlled Substances
Act to Wirick, also resulting in Wiricks
death. In addition to having to prove that
Defendant knowingly and intentionally
prescribed the controlled substances outside the usual course of medical practice
or without a legitimate medical purpose,
the Government, to convict Defendant on
counts 1 and 2, also had to prove Wirick
died as a result of taking the prescribed
medications and that his death was reasonably foreseeable.10 At oral argument,
the Government addressed what it believed to be a circuit split on the issue of
whether the death having resulted from
language in the indictment is an enhancement or an element of the offense. Compare United States v. Krieger, 628 F.3d
857, 867 (7th Cir.2010) (concluding mandatory minimum provision in 841(b) is a
sentencing enhancement provision); with
United States v. Burrage, 687 F.3d 1015,
102324 (8th Cir.2012) (referring to death
resulted from as an element without analysis). Because we hold the Government
presented sufficient evidence to prove the
10. The penalty section of 841 provides that
[i]n the case of a controlled substance in
schedule I or II [i.e., oxycodone], TTT if death
or serious bodily injury results from the use of
such substance [such person] shall be sentenced to a term of imprisonment of not less
than twenty years or more than lifeTTTT 21

oxycodone resulted in death and the hydrocodone resulted in death, we need not
address this issue. We also must add that
because the Government requested an instruction on reasonable foreseeability, it
was required to prove that element.
United States v. Romero, 136 F.3d 1268,
1273 (10th Cir.1998) (the Government is
required to prove all elements put forth in
unchallenged instructions to the jury, even
if the Government would not, under law,
be otherwise required to do so). As we
will discuss in further detail below, because of the posture of this case, we do
not opine on whether 841(b)s language
contains a foreseeability or proximate
cause requirement.
A.
Wirick was a former firefighter who severely injured his back on the job. Wirick
began seeing Defendant in 1999 and continued to see him for approximately seven
years. In January 2006, Wirick overdosed
on methadone Defendant had prescribed
him. After the overdose, Wirick and his
family physician, Dr. Stephen Bruce,
agreed that Bruce would exclusively treat
Wirick. Trial Tr., 27, August 3, 2011. A
few months after the agreement, Wirick
went to see Bruce, but Bruce was out of
town. Id. at 40. Wirick asked another
doctor in Bruces practice for an early
refill of pain medication, but that doctor
refused. Wirick then went to see Defendant on May 3, 2011. On that day, Defendant billed 92 patients in six and a half
hours. Trial Tr., 30, July 28, 2011. Defendant prescribed Wirick both oxycodone
U.S.C. 841(b)(1)(C). [I]n the case of any
controlled substance in schedule III [i.e., hydrocodone mixtures], TTT if death or serious
bodily injury results from the use of such
substance [such person] shall be sentenced to
a term of imprisonment of not more than 15
years. 21 U.S.C. 841(b)(1)(E)(i).

Page: 20

Appellate Case: 14-4093

826

Document: 01019355232

Date Filed: 12/12/2014

715 FEDERAL REPORTER, 3d SERIES

and hydrocodone. Three days later, Wirick died. Count 1 alleged Defendant
knowingly and intentionally distributed 60
ten-milligram oxycodone tablets to Wirick.
Count 2 alleged Defendant knowingly and
intentionally distributed 90 ten-milligram
hydrocodone tablets to Wirick. Counts 1
and 2 further alleged Wirick died as a
result of taking the prescribed medications.
The Government introduced Wiricks autopsy report, prepared by Dr. Maureen
Frikke. At the time of trial, Frikke was
deceased. Dr. Todd Grey, Utahs Chief
Medical Examiner, testified as to the cause
of death. He posited Wirick died as a
result of the combined effects of drug toxicities, specifically the combination of oxycodone and Valium as well as pneumonia.
Dr. Grey testified the level of hydrocodone
was below the limit of what is considered
potentially toxic and the level of oxycodone
was in the therapeutic range. He further
testified that pneumonia itself was potentially lethal. Dr. Stacy Hail, a toxicologist,
also testified. Dr. Hail reviewed the autopsy report and testified that Wirick died
of drug toxicity because of the presence of
hydrocodone, oxycodone, and Valium. Dr.
Hail excluded pneumonia as an immediate
cause of death. Dr. Michael Baden, Defendants expert, opined that Wirick died
from a severe case of undiagnosed pneumonia and that Wiricks drug levels were
normal for people who used narcotics for
prolonged periods of time.
At the close of the Governments case,
Defendant made his oral motion for judgment of acquittal. The district court denied the motion, concluding sufficient evidence existed in the Governments case in
chief from which a rational fact finder
could find guilt beyond a reasonable doubt.
At the end of trial, Defendant renewed his
motion on all counts, but stated he wanted
to particularly focus on counts 1 and 2.

The district court sent the case to the jury,

but took the renewed Rule 29 motion under advisement as to counts 1 and 2. After trial, Defendant filed a memorandum
in support of his motion for acquittal on
counts 1 and 2. The district court issued a
written order denying the motion for judgment of acquittal on counts 1 and 2. The
court concluded that the facts, attending
circumstances, and reasonable inferences
provided evidence on which a jury could
conclude beyond a reasonable doubt that
Defendant acted outside the bounds of
professional practice and without a good
faith belief that his prescriptions for Wirick were for a legitimate medical purpose.
The district court further concluded the
evidence was sufficient for the jury to reasonably conclude beyond a reasonable
doubt that the drugs in Wiricks system
came from Defendants prescriptions, the
use of the oxycodone and hydrocodone resulted in Wiricks death, and the death was
reasonably foreseeable.
B.
Defendant first argues the Government
did not prove Defendant prescribed Wirick
the medications for any purpose other than
a legitimate medical purpose. Defendant
points to the trial testimony of Dr. Bruce
and Wiricks wife and son regarding Wiricks documented chronic, severe lower
back pain. Trial Tr., 25, 70, 76, 11213,
August 3, 2011. Defendant suggests no
evidence showed Wirick took medications
for recreational purposes or sold them to
others. Defendant asserts this testimony
proves that Wirick was in constant pain
and Defendant prescribed the prescriptions within the bounds of professional
medical practice for the legitimate medical
purpose of pain management. Defendant
also states Bruce did not have a problem
with the fact that Defendant saw Wirick on
May 3, which showed a disagreement be-

Page: 21

Appellate Case: 14-4093

Document: 01019355232

Date Filed: 12/12/2014

U.S. v. MACKAY
Cite as 715 F.3d 807 (10th Cir. 2013)

tween Bruce and Hare, two of the Governments witnesses. Defendant asserts that
this conflict, in and of itself, creates reasonable doubt on this issue as a matter of
law.11
The jury heard evidence regarding Defendants general manner of practice, including Defendants failure to take adequate medical histories and conduct
physical exams. The jury heard Defendant was aware that Wirick overdosed on
methadone in January 2006, only two
days after Defendant prescribed the methadone. Trial Tr., 128, August 16, 2011.
Defendant also saw 80 patients the day
he prescribed the methadone. Trial Tr.,
46, August 9, 2011. The jury saw no evidence in Wiricks chart that Defendant
cautioned Wirick about the methadone.
The jury learned that after the overdose,
Bruce spoke with Defendant regarding
Bruce and Wiricks agreement that
Bruce would be Wiricks only doctor.
Despite Wiricks presence on Defendants
do-not-see list, Defendant prescribed
Wirick full prescriptions for oxycodone,
hydrocodone, and Soma on May 3.12 Trial Tr., 136, August 16, 2011. The jury
heard that Defendant did not check with
Bruces office before prescribing the
medication on May 3. Id. at 131. Defendant testified he did not take Wiricks
vital signs. Id. at 135. On May 3, Defendant saw 92 patients in 6.5 hours. Id.
at 133. Even though Bruce testified
Wirick had a legitimate need for pain
management, Bruce also stated Defendant acted inappropriately in providing
11. Even if Bruce had no problem with Wirick
seeing Defendant, Bruce testified Defendant
inappropriately gave Wirick the specific quantity of medication on the May 3 visit. Trial
Tr., 46, August 3, 2011.
12. Defendant states that Dr. Bradford Hare
testified that an exclusive contract existed between Dr. Bruce and Defendant that prevented Defendant from prescribing Wirick medi-

827

Wirick the quantity of drugs he gave

him on May 3. Trial Tr., 4546, August
3, 2011.
[9] To be sure, the jury heard conflicting evidence as to whether Defendant prescribed to Wirick outside the usual course
of medical practice and not for a legitimate
medical purpose. But conflicting evidence
does not per se create a reasonable doubt.
Where the evidence conflicts, we accept
the jurys resolution of conflicting evidence
and its assessment of the credibility of
witnesses. United States v. ChavezMarquez, 66 F.3d 259, 262 (10th Cir.1995).
The above evidence, when examined in its
entirety and in the light most favorable to
the Government, is sufficient to show Defendant stepped outside of his role as a
physician to Wirick and did not prescribe
the medication for a legitimate medical
purpose. Specifically, the jury heard evidence that Defendant did not check with
Bruces office on May 3 before writing the
prescriptions and did not take Wiricks
vital signs. Moreover, the jury heard
Bruces testimony that the quantity of
drugs Defendant provided Wirick was inappropriate and more than necessary to
treat Wiricks pain until Wirick could see
Bruce. The jury could examine these
facts and conclude Defendant engaged in
criminal conduct. See Moore, 423 U.S. at
14243, 96 S.Ct. 335 (concluding doctor
acted as a large-scale pusher not as a
physician when he gave inadequate physical examinations, ignored the results of the
tests he did make, took no precautions
cation. Trial Tr., 30, July 28, 2011. Hare
testified there was an exclusive contract with
Dr. Bruce that Dr. MacKay was aware of for
Dr. MacKay not to prescribe. Id. Regardless, Defendant correctly asserts that the
agreement was an oral agreement between
Bruce and Wirick that Wirick would receive
medications solely from Bruce. Trial Tr., 20,
2728, August 3, 2011.

Page: 22

Appellate Case: 14-4093

Document: 01019355232

828

Date Filed: 12/12/2014

715 FEDERAL REPORTER, 3d SERIES

against a drugs misuse and diversion, did

not regulate dosage, prescribing as much
and as frequently as the patient demanded). Accordingly, we agree with the district court that the evidence was sufficient
for the jury to conclude Defendant stepped
outside of his role as a physician.
C.

We therefore must examine Defendants

Rule 29 motion. We agree with the Government that, at trial, Defendant failed to
present this specific argument in his oral
motions for judgment of acquittal. Trial
Tr., 19596, August 9, 2011, Trial Tr., 161,
August 16, 2011. After trial, however, Defendant filed a memorandum in support of
his motion for acquittal on counts 1 and 2.
Therein, Defendant argued the evidence
was insufficient to establish beyond a reasonable doubt that Wirick died as a result
of Defendants conduct and that Wiricks
death was reasonably foreseeable. Specifically, Defendant asserted the theory that
the drugs killed Wirick was only one of
four causes of death that was presented at
trial. Defendants argument appeared to
be that four experts could not come to an
agreement, therefore the jury could not
have found beyond a reasonable doubt that
the drugs caused Wiricks death. Within
that argument, Defendant had one sentence relating to the issue he now raises on
appeal: Even Dr. Frikke TTT in her autopsy report admitted TTT that neither the
hydrocodone or the oxycodone alone were
at a concentration range that has been
reported to cause death and that Mr. Wiricks pneumonia was a complication.
Aplt. Appx 154. We will give Defendant
the benefit of the doubt that he raised this
issue in his Rule 29 motion.13

Next, Defendant contends the Government presented no testimony or evidence

that either medication, the oxycodone identified in count 1 and the hydrocodone identified in count 2, alone was sufficient to
cause Wiricks death. Rather, he says the
Governments experts testified that Wirick
died from the combined effect of the
drugs. The Government asserts Defendant forfeited this argument on appeal by
not raising it to the district court and
failing to argue for plain error review in
his opening brief. Defendant says his argument is not new on appeal. Instead,
Defendant states his argument is simply a
recitation of what the Government was
required to prove in this case. In his
reply brief, Defendant states he challenged
the sufficiency of the evidence as to every
disputed element of the offenses. Defendant contends each time he made his Rule
29 motion, he challenged the sufficiency of
the evidence to prove the prescriptions
charged in counts 1 and 2 were unlawfully
issued, the medications prescribed caused
Wiricks death, and Wiricks death was a
reasonably foreseeable consequence of Defendants issuance of the two prescriptions.
Defendant posits that implicit in his argument on causation was that the Government had failed to prove that the oxycodone or hydrocodone caused Wiricks
death.

[10] Because Defendant did not forfeit

this argument, we turn to the merits of
Defendants second sufficiency claim. In
his opening brief, Defendant asserts the
jury had to reject Badens expert testimony in its entirety in order to convict Defendant on counts 1 and 2. Defendant contends such a result is unreasonable. We
disagree. When experts do not reach the
same conclusion, the jury is responsible for

13. Even if Defendant had forfeited the issue

and we reviewed for plain error, our plain
error analysis in this context is essentially the

same as our usual sufficiency of the evidence

analysis. United States v. Gallant, 537 F.3d
1202, 1223 (10th Cir.2008).

Page: 23

Appellate Case: 14-4093

Document: 01019355232

Date Filed: 12/12/2014

U.S. v. MACKAY
Cite as 715 F.3d 807 (10th Cir. 2013)

making credibility determinations, not the

court.14
We examine the record to determine
whether the jury could conclude beyond a
reasonable doubt that the oxycodone alone
could have caused death and that the hydrocodone alone could have caused death.
Dr. Frikke, the doctor who performed the
autopsy, certified that the death was due
to drug toxicity poisoning with hydrocodone and oxycodone. Id. at 33. Dr.
Grey, Utahs Chief Medical Examiner,
however, testified Wirick died as a result
of combined effects of drug toxicities, specifically with oxycodone and diazepam as
well as bronchopneumonia. Trial Tr., 29
30, August 2, 2011. Grey testified that he
determines drug toxicity based primarily
on the findings from toxicology. Id. at 39.
In this case, the hydrocodone in Wiricks
blood sample was 0.09 milligrams per liter.
Id. According to Grey, a hydrocodone level
of 0.09 is a level that is above expected
therapeutic and just below the lower limit
of what is considered potentially toxic.
Id. at 42. Likewise, the oxycodone in Wiricks blood sample was 0.09 milligrams per
liter. Id. at 39. Again, the oxycodone is
in the high therapeutic range. Id. at 43.
Grey testified that [t]oxic level would be
adverse effects. Lethal level would be
what is reported as something that pretty
much guarantees youre going to die lethally. Id. Grey believed that none of
the individual drug levels would kill a person and that no specific drug was present
in Wiricks body at a level high enough to
be considered lethal. Id. at 44, 47.
In contrast, Dr. Hail, the only board
certified toxicologist to testify, stated that
hydrocodone and oxycodone were the
14. Defendant appeared to understand this in
the district court. In his proposed jury instruction number 16, he requested that the
jury be instructed as follows: If you should
decide that the opinion of an expert TTT is

829

drugs that resulted in Wiricks death.

Hail testified that although other drugs
may have contributed to Wiricks death,
the death would not have occurred absent
the hydrocodone and the oxycodone. Id.
at 160161. Contradicting Greys opinion,
Hail testified there is no such thing as a
lethal drug level postmortem. Id. at 162.
Hail provided the jury with an example.
If everyone in the courtroom overdosed on
hydrocodone at that moment and she drew
blood levels in everyone, everyone would
be surprised how different the levels would
be in one person to the next. Id. at 162
163. Hail said some drugs have meaningful levels in living patients, but not the
drugs in this case. Id. at 163. She testified that if the levels of drugs are meaningless in living patients, they are even
less meaningful in dead patients. Id.
Moreover, Hail testified people are incorrect when they imagine a poster in the
medical examiners office with all of the
drugs known to man and the lethal level of
those drugs. Id. No such poster exists.
Id. In contrast to Grey, Hail stated, All I
want to see is the presence of these drugs
postmortem. I dont care what the level
is. Id.
On cross-examination, Defendants counsel asked Hail about toxicity levels. Hail
stated that although toxicity levels do not
matter, the quantity of pills taken does
matter. Id. at 181. She said Wiricks
high tolerance to opiates and opioids from
his heavy use would not equate to immunity. Id. Defendants counsel asked Hail,
Any witness who talks about toxic levels
is just plain wrong; is that your testimony? Id. at 182. Hail said, Correct, because they are not a toxicologist. They
dont understand that. Id. Hail reached
outweighed by other evidence, including that
of other expert witnesses, you may disregard
the opinion in part or in its entirety. Appellees Supp. Appx, vol. I, 67 (emphasis added).

Page: 24

Appellate Case: 14-4093

830

Document: 01019355232

Date Filed: 12/12/2014

715 FEDERAL REPORTER, 3d SERIES

that conclusion because medical examiners

dont treat patients in the roles of the
living, so I dont expect them to understand and have the same knowledge that I
have about what these numbers mean.
Id. Finally, Hail testified that the drug
poisoning occurred before Wirick developed pneumonia. Id. at 168, 185.

the hydrocodone alone caused Wiricks

death. At a motion hearing on September
21, 2011, Defendant argued Hails testimony was completely irrational and completely ridiculous. Aplt. Appx 400. But
the jury had every right to find Hail, a
board certified toxicologist testifying that
blood toxicity levels do not matter, more
credible than Grey or Baden and to disregard any testimony it deemed not credible.
Accordingly, we conclude no error, plain or
otherwise, exists as to the sufficiency of
the evidence on both counts 1 and 2.15

Viewing this evidence in the light most

favorable to the Government, a reasonable
jury could conclude beyond a reasonable
doubt that the oxycodone by itself and the
hydrocodone by itself resulted in Wiricks
death. Hail testified that the drug levels
of the oxycodone and the hydrocodone are
meaningless. This statement is further
supported by Grey and Hails testimony
that blood samples taken from the heart,
such as Wiricks blood sample, can vary
from the actual blood toxicity level. This
is because some drugs can have an effect
called postmortem redistribution. Trial
Tr., 41, August 2, 2011. Postmortem redistribution may cause drugs to become
more concentrated or less concentrated in
heart tissue after death. Id. For example, Grey testified that hydrocodones
range of levels between the heart and peripheral areas can vary from a ratio of 0.6
to four. Id. Moreover, the jury heard
Wirick had taken a large amount of hydrocodone and oxycodone. Although Hail did
not explicitly state the hydrocodone alone
could have killed Wirick or the oxycodone
alone could have killed Wirick, the testimony Hail provided, viewed in the light most
favorable to the Government, could allow
the jury to reasonably infer that the oxycodone alone caused Wiricks death and that

Next, Defendant contends the district

court based its denial of his motion for
judgment of acquittal on improper evidence. Specifically, Defendant posits the
district court erroneously considered Dr.
Frikkes autopsy report as evidence separate and apart from Dr. Greys testimony.
In its written opinion denying the motion
for judgment of acquittal on counts 1 and
2, the district court noted the jury heard
testimony from four different doctors as
to Wiricks cause of death, including Dr.
Frikke, who was deceased, and Dr. Grey.
The district court thus considered Frikkes
autopsy report as testimony presented at
trial. Defendant states he did not object
to the Government offering Dr. Greys expert testimony regarding Wiricks cause of
death because he believed Greys opinion
and testimony were being offered in lieu of
Frikkes, not in addition to the conclusions
contained in the autopsy report.16 Trial
Tr., 32, August 2, 2011 (Just for the rec-

15. In a later subsection of his opening brief,

Defendant re-argues the district court erred in
denying his Rule 29 motion because reasonable doubt existed that Wiricks death resulted from the medications Defendant prescribed. For the precise reasons discussed in
this section, however, we disagree with Defendants re-argument.

16. At a motion hearing after trial, but before

the district court issued its opinion denying
the Rule 29 motion on counts 1 and 2, the
district court clearly stated [Frikke] was one
of the four expert witnesses on the issue.
Aplt. Appx 402. Rather than counter the
district courts statement, Defendant addressed the contents of the autopsy report.

D.

Page: 25

Appellate Case: 14-4093

Document: 01019355232

Date Filed: 12/12/2014

U.S. v. MACKAY
Cite as 715 F.3d 807 (10th Cir. 2013)

ord, I have no problem. I think its a

public recordthe actual report of the examination.). Defendant now argues the
autopsy reports admission into evidence
presents a Confrontation Clause issue.
The Government argues that because
Defendant did not argue in his opening
brief for plain error review, his claim is
now waived. The Government also contends any alleged Confrontation Clause issue is waived because Defendant affirmatively stated he had no objection to the
autopsy report and did not ask for a limiting instruction. In addition, Defendant
cross-examined Grey and Hail about the
autopsy reports contents and never objected to the Governments questions
about the report.
In his reply brief, Defendant points to a
Supreme Court decision issued prior to
his trial in which the court held that forensic lab reports containing a testimonial
certification of fact could not be introduced through the live testimony of another analyst who did not actually perform
the test or sign the certification. Bullcoming v. New Mexico, U.S. , 131
S.Ct. 2705, 2713, 180 L.Ed.2d 610 (2011).
Defendant argues that whether autopsy
reports fell under Bullcoming did not become clear until the Eleventh Circuits decision in Ignasiak, where the court held
Bullcoming prohibited the admission of
autopsy reports through a person other
than the actual medical examiner who had
performed the autopsy. Ignasiak, 667
F.3d at 1231. Defendant argues we
should review this issue de novo because
it presents a pure question of law premised on legal precedent that did not exist
17. Because the Government forcefully asserts
so many of Defendants claims cannot be
heard on appeal, we note that Lamirand and
Richison do not appear to be inconsistent
with our lengthy history of reviewing forfeited
claims for plain error. United States v. Teag-

831

at the time of trial. Alternatively, he argues the autopsy reports admission satisfies the requirements of plain error because the reports admission was clearly
erroneous, and as the only opinion testimony that supported the Governments
theory on causation as to count 1 and 2,
substantially prejudiced Defendant and resulted in manifest injustice.
[11] We reject Defendants argument
that he is entitled to relief because of an
intervening change in the law. Here, no
change in the law occurred after Defendants trial. The Supreme Court issued its
opinion in Bullcoming in June 2011. Defendants trial occurred in late July and
early August, 2011. Defendant had the
opportunity to object to the admission of
the autopsy report on the basis of Bullcoming, as the defendant obviously did in
Ignasiak. The district court then could
have ruled on the issue.
Defendant also argues in his reply brief
that the district court committed plain error in admitting the autopsy report. But
the Government argues we cannot review
this forfeited claim because Defendant did
not argue for plain error in his opening
brief. In this Circuit, the failure to argue
for plain error and its application on appeal TTT surely marks the end of the road
for an argument for reversal not first presented to the district court. United
States v. Lamirand, 669 F.3d 1091, 1100 n.
7 (10th Cir.2012) (citing Richison v. Ernest
Grp., Inc., 634 F.3d 1123, 112728 (10th
Cir.2011)). But at what point on appeal
must an appellant argue for plain error
and its application? Fortunately we need
not decide that issue today.17 This is beue, 443 F.3d 1310, 1314 (10th Cir.2006).
Rather than creating a new procedural rule,
these cases reenforced the principle that an
appellant carries the heavy burden of satisfying plain error. United States v. LaHue, 261
F.3d 993, 1009 (10th Cir.2001). And if an

Page: 26

Appellate Case: 14-4093

Document: 01019355232

832

Date Filed: 12/12/2014

715 FEDERAL REPORTER, 3d SERIES

cause, even if we assume that error in fact

occurred, Defendant cannot demonstrate
that the error affected his substantial
rights. Cooper, 654 F.3d at 1117 (explaining the burden is on the appellant to demonstrate an error, that is plain, affects his
substantial rights, and justice requires the
error to be corrected). Without the admission of the autopsy report, the jury still
had sufficient evidence to find Defendant
guilty on both counts 1 and 2 because of
Hails testimony. Accordingly, under the
plain error standard of review, the district
court did not err in admitting the autopsy
report.
E.
Defendant next contends the Government failed to prove Wiricks death was a
reasonably foreseeable consequence of
Defendants prescribing the controlled
substances. Defendant posits the lone fact
that he knew Wirick overdosed on methadone in January 2006, only four months
before his death, is not probative of whether Wiricks death was reasonably foreseeable. In addition, Defendant asserts the
district court failed to fully and adequately
instruct the jury on proximate cause and
the definition of reasonable foreseeability,
which confused the jury and left it to
decide what might be adequate proof.
We note other circuits have concluded
Congress intended 21 U.S.C. 841(b)s
resulting in death language to apply
without regard to the principles of proxiappellant fails to satisfy that burden, we do
not develop a plain error argument for the
appellant. United States v. DeChristopher,
695 F.3d 1082, 1091 (10th Cir.2012). This is
entirely consistent with our case precedent
and Federal Rule of Criminal Procedure
52(b), which allows us to consider a plain
error even though it was not brought to the
district courts attention. But is the adversely
affected party heard and the adversarial process served when we allow a plain error argument for the first time in the reply brief?

mate cause or the foreseeability of death

or serious bodily injury. United States v.
McIntosh, 236 F.3d 968, 972 (8th Cir.
2001); see also United States v. Patterson,
38 F.3d 139, 145 (4th Cir.1994) (holding
reasonable foreseeability is not an element
of 841(b)); United States v. Robinson,
167 F.3d 824, 826 (3d Cir.1999) (concluding
841(b) does not require proof that a
defendants actions are the proximate
cause of a victims death.); United States
v. Rebmann, 226 F.3d 521, 522, 525 (6th
Cir.2000) (providing in dicta that the statute, on its face, is, in effect, a strict
liability statute with respect to the injury
or death of another arising out of the
distribution of drugs), overruled on other
grounds by United States v. Leachman,
309 F.3d 377, 385 n. 9 (6th Cir.2002);
United States v. De La Cruz, 514 F.3d
121, 138 (1st Cir.2008) (stating the Government does not need to prove foreseeability); United States v. Houston, 406 F.3d
1121, 112223 (9th Cir.2005) (concluding
the statute does not require the Government prove death was a foreseeable result); United States v. Webb, 655 F.3d
1238, 1254 (11th Cir.2011) (the plain and
unambiguous language of [the statute]
contains no foreseeability or proximate
cause requirement); cf. United States v.
Hatfield, 591 F.3d 945, 95051 (7th Cir.
2010) (expressing some misgivings about
interpreting results from in the statute to
impose strict liability, but not deciding
That the appellee has the opportunity to provide why the appellants alleged error is not
plain in its response brief may suffice. The
appellant may then argue in his reply brief
why the error is in fact plain. An appellant
certainly would benefit from a more developed argument if he acknowledged forfeiture
in his opening brief, but we do not discount
the possibility that we may consider a plain
error argument made for the first time in an
appellants reply brief.

Page: 27

Appellate Case: 14-4093

Document: 01019355232

Date Filed: 12/12/2014

U.S. v. MACKAY
Cite as 715 F.3d 807 (10th Cir. 2013)

the issue because the defendants did not

challenge the interpretation of the statute
as imposing strict liability on them for
death or injury). Because the Government requested an instruction on reasonable foreseeability, however, it was required to prove it. Romero, 136 F.3d at
1273. And because of the posture of this
case, we do not opine on whether
841(b)s language contains a foreseeability or proximate cause requirement.
Rather, we first address whether the evidence presented at trial was sufficient to
show Wiricks death was a reasonably
foreseeable consequence of Defendants
prescribing the controlled substances before turning to the jury instruction on the
standard for determining whether Wiricks
death resulted from the medications Defendant prescribed.
1.
Defendant contends Wiricks previous
methadone overdose was irrelevant to the
question of whether Wiricks death four
months later was reasonably foreseeable
and says the Government presented no
other evidence to support foreseeability.
Defendant argues Wirick never misused
his opioid medications during the seven
years he treated Wirick. Defendant further asserts the methadone overdose was
an anomalous event that did not involve
hydrocodone or oxycodone. Defendant
points to the differences between methadone on the one hand and hydrocodone
and oxycodone on the other. Defendant
also points out that Dr. Bruce prescribed
Wirick opioids immediately following the
January overdose.
Defendant asserts
that, by the Governments logic, every time
18. Although Defendant testified he had prescribed Wirick a 30day supply, he now argues on appeal that he was mistaken because
the DOPL report indicates that he prescribed
Wirick a 10day supply of oxycodone and a
15day supply of hydrocodone. Aplt. Appx

833

Bruce prescribed to Wirick in the four

months following the overdose, Bruce
should have reasonably foreseen that Wirick would die from an overdose. Finally,
Defendant argues his knowledge of the
exclusive agreement between Bruce and
Wirick does not prove foreseeability.
[12] At trial, the Government asked
Defendant whether he was aware Wirick
would binge on his narcotics. Defendant
stated he was not. But the jury saw notes
from Bruce in Wiricks chart. Those notes
indicate Wiricks wife stated that Wirick
would take his medication in an inconsistent manner, often binging to the point of
falling off a toilet. Trial Tr., 130, August
16, 2011. Defendant admitted that the
notes were in his chart, but said he did not
know Wirick would binge because he did
not read Bruces notes word for word.
Id. The jury heard testimony that Wirick
attempted to obtain an early refill from
another doctor in Bruces office, but that
doctor refused. Defendant saw Wirick in
May even though Wirick was on Defendants do not see list. Defendant said he
agreed to see Wirick because Bruce was
out of town. Instead of prescribing a
three-day prescription, the amount of time
Bruce was to remain out of town, Defendant wrote Wirick a thirty-day prescription without contacting Bruces office.18
Id. at 131. Based on the information in
Defendants chart showing that Wirick
binged on his medication, the fact that
Wirick desired an early refill, and another
doctor in Bruces practice would not prescribe Wirick additional medication, the
jury could reasonably conclude beyond a
reasonable doubt that Wiricks death from
1213. Because Defendant testified as such,
the jury could consider his statement. We
have no power to change the record to suit
Defendants recollection, which is not what
he testified to at trial.

Page: 28

Appellate Case: 14-4093

Document: 01019355232

834

Date Filed: 12/12/2014

715 FEDERAL REPORTER, 3d SERIES

Defendants prescriptions was reasonably

foreseeable.
2.
Defendant finds fault with two parts of
the jury instructions. Defendant asserts
the district court did not fully inform the
jury of the law regarding proximate cause
and argues the instruction caused confusion because the district court failed to
define reasonably foreseeable consequence.
Once again, the Government argues Defendant waived his challenge to the jury
instructions. Jury instruction 22 instructed the jury on counts 1 and 2. At a
motion hearing on August 8, the district
court requested the parties assist the court
in crafting the instruction, [n]either of
you gave me much by way of defining to
the jury what death resulting from the use
of the drugs means. If you want to take
your hand at that, I would really appreciate it. Appellees Supp. Appx vol. I, 165.
The court continued, I was left with the
feeling that the resulting from language
should be perhaps defined a little more, a
little better for the jury. Id. at 166.
Four days later, the district court mentioned to the parties that it had provided
them with a set of proposed instructions,
including the two instructions for which it
had asked for help. The district court
continued to ask for assistance: I really
would appreciate some help on [instruction
22] as early as possible. Trial Tr., 83,
August 12, 2011. After Defendants attorney asked for clarification, the district
court responded: If youre happy with
the one we have got, then I am too. I just
hope you take another look at it from the
eyes of a juror and ask does this make
sense to me? If youre both happy with
the language, the reasonably foreseeable
standard, then I am. Id. at 84.

[13] Defendant forfeited this issue.

The district court, on multiple occasions,
requested assistance in drafting the jury
instruction at issue. Defendants failure to
object to the instruction, especially when
invited by the district court to assist in the
drafting the instruction, results in forfeiture of the issue. Defendant did not argue
for the plain error standard in his opening
brief or in his reply brief. Defendant has
forfeited his challenge to the jury instructions and we will not craft a plain error
argument for him on appeal. United
States v. DeChristopher, 695 F.3d 1082,
1091 (10th Cir.2012); see also United
States v. McGlothin, 705 F.3d 1254, 1267
(10th Cir.2013) (concluding appellant forfeited argument on appeal where appellant
did not argue for the plain error standard
in either of his briefs). Accordingly, we
will not review Defendants waived challenge to jury instruction 22.
IV.
[14, 15] Defendant next challenges the
testimony or Dr. Hail, arguing the district
court erroneously permitted her to offer
expert testimony. Pursuant to Federal
Rule of Evidence 702, a district court must
assess proffered expert testimony to ensure it is both relevant and reliable.
United States v. AvitiaGuillen, 680 F.3d
1253, 1256 (10th Cir.2012) (citing Daubert
v. Merrell Dow Pharms., Inc., 509 U.S.
579, 589, 113 S.Ct. 2786, 125 L.Ed.2d 469
(1993)). The district court must determine whether the expert is qualified by
knowledge, skill, experience, training, or
education to render an opinion. Id. (internal quotation marks omitted). Once the
expert is deemed sufficiently qualified,
then the court must determine whether
the experts opinion is reliable by assessing
the underlying reasoning and methodology. Id. The district court must adequately demonstrate by specific findings
on the record that it has performed its

Page: 29

Appellate Case: 14-4093

Document: 01019355232

Date Filed: 12/12/2014

U.S. v. MACKAY
Cite as 715 F.3d 807 (10th Cir. 2013)

duty as a gatekeeper when faced with a

partys objection. Id. Defendant correctly notes we usually review de novo whether the district court applied the proper
standard in admitting expert testimony.
Id. But where a party fails entirely to
object to expert testimony at or before
trial, we review only for plain error. Id.
Defendant first challenges Hails qualifications, asserting that Hail lacked expertise to meaningfully review all of the
materials to make a cause of death determination because she is a toxicologist
rather than a forensic pathologist. Second, Defendant challenges the methodology Hail used to reach her opinion. Defendant posits Hails opinions cast serious
doubt on whether she based them on a
review of the autopsy report or on subjective belief and unsupported speculation. Third, Defendant contends the district court improperly allowed Hail to
give a legal opinion and testify to an ultimate issue: that Wiricks death resulted
from the use of controlled substances.
Once again, the Government asserts Defendant waived this issue on appeal because Defendant did not object below and
does not argue plain error on appeal. Additionally, the Government argues the
Federal Rules of Evidence allow an expert
to testify on an ultimate issue and, as a
board certified toxicologist, Hail possessed
the necessary training and experience to
opine on the relationship between the
drugs and Wiricks death. In his reply
brief, rather than argue for plain error
review, Defendant asserts his belief that
de novo review applies because he actually made these arguments on several occasions and challenged Dr. Hails qualifications and methodology extensively on
cross-examination and later in his Rule 29
Motion.
To determine whether Defendant objected to Hails qualifications and methodolo-

835

gy, we again turn to the record. On August 1, the day before the Government
called Hail to testify, the parties gathered
in the district court judges chambers to
address objections. Defendant started out
by arguing it is my recollection that the
government represented that [Hail] was
not going to testify to the cause of death,
but because she is going to be testifying to
the cause of death, we believe it is cumulativeTTTT Aplt. Appx 344. Specifically,
Defendant believed Hails testimony would
be cumulative to Dr. Greys testimony. Id.
at 346. Defendant argued Hails testimony would be almost verbatim the exact
language that is contained in the autopsy
report TTT that the combination of those
two drugs was the cause of death. Id.
Defendant also argued Hails testimony
would be cumulative to Dr. Hares testimony regarding the composition of drugs and
their interaction with one another. Id. at
350. At the hearing, the district court
ruled that Hails testimony would not be
cumulative to either doctor. The district
court reasoned that Hail would testify that
the pneumonia did not contribute to the
death, whereas Grey would testify that it
did contribute. Hare did not offer an
opinion as to how the drugs that Wirick
took interacted in connection with his
death. But, the district court stated it
would be inclined to sustain an objection of
cumulativeness if Hail simply parroted another expert. The district court advised
Defendant: So be ready for both of
them. Id. at 352.
The next day at trial, Defendant first
objected to the Government asking Doctor, could you describe the purpose of
opioids? Trial Tr., 151, August 2, 2011.
Defendant believed the question would
lead to testimony cumulative to Hares testimony. Next, Defendant objected to
Hails partial answer to the question of
Whats a benzo? Defendant objected to

Page: 30

Appellate Case: 14-4093

836

Document: 01019355232

Date Filed: 12/12/2014

715 FEDERAL REPORTER, 3d SERIES

the narrative, stating Hail had moved on to

other areas. Id. at 153. The Government
proceeded to ask Hail what a synergistic
effect was. Defendant objected, stating
that the jury had heard about this topic
from Grey earlier in the day. Id. Once
Hail began talking about blood taken from
the heart, Defendant objected to testimony
regarding heart blood because it would
be the third time it was discussed. Id. at
164. Defendant next objected to a question asking Hail if she knew how many
pills Wirick consumed between May 3 and
May 6. When Hail responded she did not
memorize how many were missing, Defendant stated the question called for speculation unless she had a foundation that she
was with Wirick when he took the pills.
Id. at 167. Finally, on cross examination,
Defendant asked Hail whether she had any
formal training in pathology. Id. at 170.
Hail stated she did not. Defendant also
asked whether she examined the slides
that went along with the autopsy report.
Id. at 174. She stated she had not because
she read the autopsy report.
We must note two important instances
where Defendant did not object. First,
the Government offered Hail as an expert
in emergency medicine and toxicology.
Trial Tr., 145, August 2, 2011. Defendant
did not object. The district court stated,
Okay. Proceed with your next question.
I usually dont do anything to qualify experts. Id. Second, the Government
asked Hail, Based upon your review of all
this information that you gathered concerning David Wiricks death, did you form
an opinion that his drug use resulted in
death? Id. at 160. Hail answered yes.
Id. The Government then asked What is
your opinion. Id. Defendant, again, did
not object.
In support of his argument that he objected, Defendant also points to his memorandum in support of his motion for judg-

ment of acquittal in which he cited Hails

testimony that she did not review the microscopic slides of Wiricks lungs or heart
tissue and that she would not know what
she was looking at in the slides because
she is not a pathologist. Aplt. Appx 150.
Defendant also cited her testimony that
the combination of one oxycodone, one hydrocodone and one Valium could cause
death and that she disagreed that pneumonia was a contributing factor in Wiricks
death because people seek out medical attention when they have pneumonia. Id.
A close examination of Defendants argument in his Rule 29 motion shows, however, that he did not challenge the district
courts gatekeeping function. In discussing why he believed the evidence to be
insufficient, Defendant referenced the expert opinion of Hail, arguing this other
expert weakened Frikkes opinion about
the cause of death. Id. at 155. Lastly,
Defendant brings our attention to the posttrial motion hearing on Defendants motion
for judgment of acquittal on counts 1 and
2. At that hearing, Defendant argued
Hails testimony was the only testimony
that could lead anybody to believe that
Wiricks blood toxicity level was outside of
a therapeutic level. Defendant asserted:
Dr. Hails explanation is completely irrational and completely ridiculous, because
what she really said was one pill, the
combination of Oxycodone, Hydrocodone
and Valium TTT one pill would kill you.
She said even more. She said I didnt
care about the therapeutic levels, because her opinion was that [ ] kills you.
That therapeutic dosage of that one pill
and those three medications kills
youTTTT She is completely contradicted
by the evidenceTTTT Moreover, Dr.
Hail TTT was the only one that said TTT
the wonderfully interesting expert opinion that the reason why he didnt die

Page: 31

Appellate Case: 14-4093

Document: 01019355232

Date Filed: 12/12/2014

U.S. v. MACKAY
Cite as 715 F.3d 807 (10th Cir. 2013)

from pneumonia is because people who

have pneumonia only die in hospitals.
Aplt. Appx 40001.
Our detailed record review reveals that
Defendant never challenged Hails qualifications or methodology. At trial, Defendant objected to what he believed to be
cumulative testimony, a narrative answer,
and an answer based on speculation. But
notably absent during the Governments
direct examination of Hail is an objection
to the district court qualifying Hail as an
expert or her qualifications or methodology. During cross examination, Defendant
questioned Hails qualifications and questioned her methodology, but never suggested the jury could not consider her
testimony to be that of an expert. Questioning an expert about her methodology
and qualifications on cross examination is
not the same as objecting to her being
qualified as an expert. Defendant did not
make a belated objection to Hails qualifications as an expert during his cross examination. Juries often hear dueling expert
testimony, and in this case, the jury chose
to credit Hails testimony.
After trial, in both his memorandum and
at the motion hearing, Defendant questioned Hails methodology and qualification
to give expert testimony because she was
not a pathologist. But Defendant did not
challenge the district courts decision to
allow Hail to give expert testimony. Rather he argued a pathologist, instead of a
toxicologist, would be the appropriate person to provide testimony as to cause of
death and that no reasonable jury could
accept Hails testimony. This argument
does not go to Hails fitness to testify as an
expert, but to the sufficiency of the evidence to convict Defendant on Counts 1
and 2.
[16] Rather than alternatively argue
for plain error in his reply brief, Defendant asserts he objected on the basis of

837

cumulativeness and that resulting in

death and cause of death were the
same. Based on our record review, we
agree with Defendant that he objected
based on cumulativeness and asserted that
the resulting in death and cause of
death terminology represented a distinction without a difference, but Defendant
did not object to Hails testimony for the
reasons he articulates on appeal. Our case
law routinely reviews these forfeited
claims for plain error. AvitiaGuillen,
680 F.3d at 1256. But we also know that
we do not craft plain error arguments for
appellants on appeal. DeChristopher, 695
F.3d at 1091. We easily identify the quagmire: What is the extent of an appellants
burden to demonstrate plain error? Need
he only provide us the facts on which we
could find plain error or does he need to
provide us an argument incorporating the
correct legal standard? These are certainly interesting questions, but this case is
not the proper vehicle to decide the issue.
For in this case, the district courts decision to qualify Hail as an expert and allow
the jury to consider her testimony does
not rise to plain error.
Furthermore, because Defendant did
not object to Hails methodology or qualifications, the district court was not required
to make explicit findings. AvitiaGuillen,
680 F.3d at 1260. So we are left to look
only for some obvious error in the courts
implicit finding that [Hails] methods were
reliable and Hail was qualified to testify
as an expert. Id. The district court
heard Hail testify she is board certified in
toxicology, a lecturer to residents, medical
students, and pharmacologists doing a rotation in medical toxicology, and an author
of articles in textbooks. Trial Tr., 14142,
August 2, 2011. Hail testified toxicology is
the study of poisons and that as a toxicologist, she treats overdoses and directs other
doctors on how to manage overdoses. Id.

Page: 32

Appellate Case: 14-4093

838

Document: 01019355232

Date Filed: 12/12/2014

715 FEDERAL REPORTER, 3d SERIES

at 137, 13940. Hail admitted she was not

a pathologist, which is why she did not
review the autopsy slides. Instead, she
offered an opinion on the drugs in Wiricks
system. Nothing in the record indicated
Hail lacked the necessary training and experience to provide testimony on the relationship between drugs or poisons and
Wiricks death.19 The district court did
not plainly err in its implicit determination
that Hails testimony was based on reliable principles and methods that were
reliably applied. Fed.R.Evid. 702(c), (d).
To the extent Defendant challenges the
district courts reliance on Hails expert
testimony in ruling on his Rule 29 motion,
we disagree with Defendants position.
The district court allowed, with no objection, Hail to testify as an expert on toxicology. The jury could reasonably rely on
her testimony as a board certified toxicologist. Defendant had the opportunity to
question Hail and to present his own expert to the jury. Defendant also had the
opportunity to counter Hails testimony
that a toxic level does not exist through
other experts. The jury heard the evidence and made a rational decision based
on the testimony presented at trial.
[17] Defendant also argues the district
court improperly allowed Hail to give a
legal opinion and testify to an ultimate
issue, specifically, that Wiricks death resulted from or, in other words, Wiricks
cause of death was because of, controlled
substances. Again, because Defendant did
19. Defendant contends that even if Hail had
been properly qualified to opine as to Wiricks
cause of death, the district court should have
nonetheless excluded her testimony as cumulative to Greys. This argument, of course, is
incorrect. As noted by Defendant, only Hail
completely excluded pneumonia as a factor in
Wiricks death.
20. Defendant did not object because Hail was
going to testify as to an ultimate issue. The

not object to Hails use of the phrase

cause of death or death resulted from
at trial, we review his claim for plain error.20 United States v. Schneider, 704
F.3d 1287, 1293 (10th Cir.2013). Federal
Rule of Evidence 704(a) allows an expert
to opine on an ultimate issue to be decided by the trier of fact. Schneider, 704
F.3d at 1293 (testifying doctor opined that
the defendant had engaged in health care
fraud resulting in death). That expert,
however, must explain the basis for her
opinion and not simply tell the jury what
result it should reach. Id. In this case,
Hail did not tell the jury Defendant was
guilty. Instead, she explained her observation based on the evidence in the case.
Accordingly, we find no error at all in the
district courts admission of Hails testimony regarding Wiricks cause of death.
V.
Defendant next asserts the district court
committed prejudicial error in admitting
Government Exhibit 133, a compilation of
charts showing the annual rankings of
Utahs top ten issuers of hydrocodone and
oxycodone
prescriptions
from
2005
through 2009. The charts reveal Defendant wrote the largest number of hydrocodone prescriptions in Utah from 2005
through 2008. In 2009, Defendant ranked
third. Defendant was the seventh highest
issuer of oxycodone prescriptions in 2005,
fourth in 2006, 2007, and 2009, and second
in 2008. Defendant contends this information was not relevant and any probative
objection was based on the cumulativeness of
the testimony to that of Dr. Grey and the
autopsy report. Not only did Defendant fail
to object to this line of questioning, Defendant
asked questions using the phrase cause of
death on Hails cross examination. Trial
Tr., 180, August 2, 2011 (Valium in Mr.
Wiricks system is significant, is it not, when
you are talking about the cause of death?).

Page: 33

Appellate Case: 14-4093

Document: 01019355232

Date Filed: 12/12/2014

U.S. v. MACKAY
Cite as 715 F.3d 807 (10th Cir. 2013)

value was substantially outweighed by its

unfairly prejudicial impact and risk of confusing and misleading the jury. Defendant asks for a new trial based on the
admission of this exhibit.
At trial, the district court engaged in a
lengthy discussion with counsel regarding
the exhibit. The Government essentially
argued Defendant opened the door to
the admission of Exhibit 133 by raising the
subject in his opening statement when he
asserted he practiced in a small townhis
communityand he did not want people
suffering from chronic pain to have to
travel to Logan, Ogden, or Salt Lake City.
Trial Tr., 47, July 20, 2011. The Government desired to respond to this argument
by pointing out Defendant was the number
one provider in the entire state. Trial Tr.,
102, July 21, 2011. The district court understood and acknowledged the potential
Rule 403 problem: The unfair prejudice
would come from the jury jumping to the
conclusion TTT if he is the biggest provider
of this drug in the state TTT then he must
be guiltyTTTT he must be bad. Id. at 104.
The district court further told the Government: Youre accusing him because he is
the number one provider of hydrocodone
in the state, that he must be prescribing it
not for legitimate medical purposes. Id.
at 105. The court pressed the Government: Do you agree that the reason or
the main aspect of the evidence that you
want to come in is his ranking? TTT Is
that the most important aspect of it? Id.
at 10607. The Government responded, I
think so. It is the volume compared to the
rest of the state. Id. at 107. After hearing from the parties, the district court said
the Governments best argument was that
Exhibit 133 should be admitted in response to Defendants opening statement
depicting Defendant as a one-doctor practice who did not want folks in his community to travel to receive treatment for
chronic pain. Id. at 109. Ultimately, the

839

district court allowed the testimony for the

reasons articulated by the Government
and explicitly stated that the probative
value was not substantially outweighed by
the danger of unfair prejudice. Id. at 114.
[18] A district court may generally admit relevant evidence. Fed.R.Evid. 402.
Rule 403, however, allows a district court
to exclude relevant evidence if its probative value is substantially outweighed by a
danger of one or more of the following:
unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting
time, or needlessly presenting cumulative
evidence. Fed.R.Evid. 403. In determining whether evidence is properly admitted under Rule 403, we consider (1)
whether the evidence was relevant, (2)
whether it had the potential to unfairly
prejudice the defendant, and (3) whether
its probative value was substantially outweighed by the danger of unfair prejudice. United States v. Cerno, 529 F.3d
926, 933 (10th Cir.2008). Our abuse of
discretion review affords the district court
considerable discretion in performing the
Rule 403 balancing test because district
court judges have front-row seats during
trial and extensive experience ruling on
evidentiary issues. Id. at 93536 (internal quotation marks omitted).
[19] We first address relevance. The
district court ruled the exhibit was relevant because, if admitted, the exhibit
would have an impact on the trial. We
agree the exhibit was relevant. The Government charged Defendant with unlawful
distribution of hydrocodone and oxycodone. The Government had to prove Defendant stepped outside his role as a doctor and became a criminal drug pusher.
The charts certainly painted a picture of
Defendants practice as a pain management physician. Moreover, a party who
raises a subject in an opening statement

Page: 34

Appellate Case: 14-4093

840

Document: 01019355232

Date Filed: 12/12/2014

715 FEDERAL REPORTER, 3d SERIES

opens the door to admission of evidence

on that same subject by the opposing party. United States v. Chavez, 229 F.3d
946, 952 (10th Cir.2000). Defendant explained why his practice shifted to pain
management in his opening statementhe
did not want to see members of his community travel to other parts of the state to
receive treatment for pain. Exhibit 133 is
relevant in light of this statement.
[20] We acknowledge the possibility
that the admission of the exhibit unfairly
prejudiced Defendant. Evidence is unfairly prejudicial if it makes a conviction
more likely because it provokes an emotional response in the jury or otherwise
tends to affect adversely the jurys attitude
toward the defendant wholly apart from its
judgment as to his guilt or innocence of
the crime charged. United States v.
Leonard, 439 F.3d 648, 652 (10th Cir.2006)
(internal quotation marks omitted). As
mentioned above, the district court expressed concern that admission of Exhibit
133 could lead the jury to base its decision
of guilt or innocence not on whether Defendant unlawfully prescribed to each of
the indictment patients, but instead on Defendants ranking as the number one physician prescribing hydrocodone in Utah.
By allowing the jury to hear testimony
regarding Exhibit 133, the district court
created a risk that the jurys decision
would be improperly affected by the fact
that Defendant prescribed so many opioid
prescriptions. The district court acknowledged the possibility that the jury could be
confused by the admission of the chart and
believe that because Defendant was the
number one provider of hydrocodone in
Utah, he must be prescribing hydrocodone
not for a legitimate medical purpose to the
indictment patients. Although the exhibit
was undoubtedly prejudicial, that alone
does not necessarily get the defendant

over his evidentiary hurdle. Cerno, 529

F.3d at 935.
[21] Finally, we consider whether the
district court abused its discretion in concluding that the probative value of the
exhibit was not substantially outweighed
by the risk of unfair prejudice. Under
Rule 403s balancing test, it is not enough
that the risk of unfair prejudice be greater
than the probative value of the evidence;
the danger of that prejudice must substantially outweigh the evidences probative
value. Id. at 935. In balancing, we give
the evidence its maximum reasonable probative force and its minimum reasonable
prejudicial value. Id.
Defendant directs us to United States v.
Jones, 570 F.2d 765 (8th Cir.1978). In
Jones, the defendant physician appealed a
conviction for distributing a Schedule II
controlled substance without a legitimate
medical purpose and outside the usual
course of professional practice. The Government indicted Defendant on two counts
only. The jury convicted Jones of one
count, but acquitted him on the other. To
buttress its case against Jones, the Government introduced 478 prescriptions issued to patients over a 20month time
period. The Eighth Circuit concluded the
evidence was relevant, but should have
been excluded under Rule 403. Id. at 768.
The court stated:
[T]he Government sought to imply
wrongdoing on the physicians part from
the quantity of the prescriptionsTTTT
The evidence lacked substantial probative force upon the issue of improper
medical practice in the transactions
charged, yet it could have led the jury to
speculate that the quantity of prescriptions alone established wrongful conduct
by Dr. Jones.
Id. at 769.
The Government distinguishes Jones by
arguing the evidence in this case relates to

Page: 35

Appellate Case: 14-4093

Document: 01019355232

Date Filed: 12/12/2014

U.S. v. MACKAY
Cite as 715 F.3d 807 (10th Cir. 2013)

Defendants ranking in connection with

drugs that were charged in the indictment
and the exhibit did not include information
for years outside of the charged crimes.
The Government cites two out of circuit
cases. In United States v. Merrill, 513
F.3d 1293, 1303 (11th Cir.2008), the Eleventh Circuit said, A jury may consider
prescription data sets outside those specifically charged in the indictment to determine whether a physician has exceeded the
legitimate bounds of medical practice and
as evidence of a plan, design, or scheme.
(internal quotation marks omitted). Similarly, in United States v. Harrison, 651
F.2d 353, 355 (5th Cir.1981), the Fifth
Circuit held that the jury was not limited
to considering only charged prescriptions
in considering whether the defendant exceeded the legitimate bounds of medical
practice. The court concluded [p]rescriptions issued at other times were admissible
as evidence of plan, design or scheme.
Id.
The cases cited by the Government are
inapplicable in this case. The Fifth Circuits conclusion in Harrison that the other prescriptions were admissible was not
based on Rule 403 balancing. Rather, it
appears to be based on Rule 404(b), which
prohibits evidence of other acts to prove a
persons character in order to show that on
a particular occasion the person acted in
accordance with the character. Fed.
R.Evid. 404(b)(1). The Rules, however,
allow evidence of other acts for another
purpose, such as proving plan. Fed.
R.Evid. 404(b)(2). In this case, Defendant
did not object based on Rule 404(b) and
likewise did not raise the issue on appeal.
Merrill, however, did involve an objection based on Rule 403. But the Governments quote from Merrill involved analysis regarding Rule 404(b). As to Rule 403,
the court pointed out that in addition to
charging the defendant physician in Mer-

841

rill with unlawful prescribing, the Government also charged the defendant with devising a scheme to defraud Medicaid and
other insurance providers. Merrill, 513
F.3d at 1301. And, as part of that scheme,
the Government alleged the defendant prescribed excessive and inappropriate quantities and combinations of controlled substances to patients outside the usual
course of professional practice. In its
Rule 403 balancing analysis, the court stated that the summary of other prescriptions
was relevant to prove the defendant prescribed excessive and inappropriate quantities and combinations of controlled substances and that in doing so he acted
outside the usual course of professional
practice. The court noted the only way
the Government could prove this part of
the scheme was to present evidence on the
quantities themselves and then comparing
those quantities to the relevant norm.
The court also stated the summary was
relevant because it raised an inference of
excessiveness and impropriety and because
the number of drugs being prescribed to
each patient and the combination of drugs
being prescribed to each patient raised an
inference of inappropriate and excessive
conduct. Because, in this case, the Government did not have to prove a scheme to
defraud involving excessive amounts of
drugs, Merrill is inapposite.
[22, 23] Likewise, this case is not analogous to Jones, but for reasons other than
those the Government listed in its brief.
Unlike the defendant in Jones, Defendant
opened the door to the admission of Exhibit 133. We stress that this is a close
question, but we do not decide it in the
first instance. Under the applicable standard of review, we ask only whether the
district court abused its discretion. Although we agree with the reasoning of the
Eighth Circuit and believe that, under the
Eighth Circuits facts, the probative value

Page: 36

Appellate Case: 14-4093

842

Document: 01019355232

Date Filed: 12/12/2014

715 FEDERAL REPORTER, 3d SERIES

of an exhibit like Exhibit 133 would have

been substantially outweighed by the danger of unfair prejudice, we believe the
district court did not abuse its discretion in
admitting Exhibit 133 under the facts of
this case.21 Obviously, Defendants opening the door makes the exhibit no less
prejudicial and capable of misleading the
jury. But the opening of the door in the
opening statement makes Exhibit 133
more probative. Defendant made his
statement about why his practice shifted
from orthopedic surgery to pain management in his opening statement. During
the exchange with the judge regarding
admission of Exhibit 133, Defendant characterized his opening statement in the following manner:
[W]hat I said was Dr. MacKay[,] because of the community that he was in,
and the fact that he didnt want folks to
go far away, and he had these chronic
pain patients that he thought it was
appropriate to continue to treat them.
That is what I said. It may very well be
that if you treat that geographic basis in
Box Elder County, you may very well be
number one. I dont think anyone really
knows thatTTTT Who knows what it
means. I really think that that is exactly where were going to be that he is
number one, therefore, he is guilty.
Trial Tr., 11011, July 21, 2011. Even
with Defendants clarification of his
21. Even if the district court had erred in
admitting Exhibit 133, the error was harmless. We render judgment after an examination of the record without regard to errors or
defects which do not affect the substantial
rights of the parties. 28 U.S.C. 2111; see
also Fed.R.Crim.P. 52(a) (Any error, defect,
irregularity, or variance that does not affect
substantial rights must be disregarded.). A
district courts decision whether to admit or
exclude evidence, is considered harmless unless a substantial right of a party is affected.
United States v. Charley, 189 F.3d 1251, 1270
(10th Cir.1999) (internal quotation marks and

opening statement, Defendant placed in

issue his role as a doctor to the community
of Box Elder County. Because of the
additional probative value of the exhibit
from Defendants opening statement, we
cannot hold the district court abused its
discretion in conducting its Rule 403 analysis.
VI.
Defendant next asserts his 20year sentence violates the Eighth Amendments
guarantee not to be subject to excessive
sanctions because the harshness of the
penalty outweighs the gravity of the offense. Defendants reasoning, however, is
best described as a Fifth Amendment due
process argument. Defendant contends
the Controlled Substances Act provides for
radically different penalties for identical
conduct, dependent only on the schedule of
the unlawfully prescribed drug. This is
because both hydrocodone and oxycodone
in their pure forms are Schedule II
drugs, but hydrocodone mixtures, such
as Lortab (hydrocodone and acetaminophen), are Schedule III drugs. No similar
provision exists for oxycodone mixtures.
In application, Defendants conviction on
count 1, for the oxycodone mixture, a
Schedule II drug, mandates a mandatory
minimum sentence of 20 years. 21 U.S.C.
841(b)(1)(C). But Defendants conviction on count 2, for the hydrocodone mixture, a Schedule III drug, carries no manbrackets omitted). An error affects the substantial rights of a party if it had a substantial
influence on the outcome or which leaves one
in grave doubt, as to whether it had such
effect. United States v. Espinoza, 244 F.3d
1234, 1240 (10th Cir.2001) (internal quotation
marks and brackets omitted). In conducting
this analysis, we review the record as a
whole. Id. at 1241. After examining the
totality of the record, our above discussion
concludes the jury had sufficient evidence to
convict Defendant on each count without considering Exhibit 133.

Page: 37

Appellate Case: 14-4093

Document: 01019355232

Date Filed: 12/12/2014

U.S. v. MACKAY
Cite as 715 F.3d 807 (10th Cir. 2013)

datory minimum sentence, but instead has

a maximum sentence of 15 years. 21
U.S.C. 841(b)(1)(E)(i). Defendant argues the disparate scheduling between hydrocodone mixtures and oxycodone mixtures is arbitrary and creates nonsensical
sentencing disparities. Defendant argues
the Controlled Substances Acts legislative
history and the relative case law do not
reveal any rational explanation as to why a
physician convicted of unlawfully prescribing an oxycodone mixture has committed a
substantially more egregious crime than a
physician convicted of unlawfully prescribing a hydrocodone mixture.
Unsurprisingly, the Government argues
waiver. First, the Government asserts
Defendants Eighth Amendment argument
is inadequately briefed, and we should not
consider it. Second, the Government
notes, to the extent Defendant contends a
Fifth Amendment due process violation occurred, the argument on appeal is different
from his due process argument to the district court. Because the argument is allegedly different, and because Defendant
does not argue for plain error on appeal,
the Government argues we should not consider the matter.
The Government correctly states Defendant did not raise either the Eighth
Amendment issue or the Fifth Amendment
issue in his Rule 29 motion. Two days
before sentencing, Defendant filed a document entitled position of party with respect to sentencing factors. Appellees
Supp. Appx Vol. I, 109. Defendant raised,
for the first time, four reasons why 21
U.S.C. 841 is unconstitutional as applied.
Id. at 114. One argument asserted
841(b)(1)(C)s mandatory minimum sentence violates the Eighth Amendment because the 20 year sentence is disproportionate to the crime committed. Another
of those arguments was that the statute
violates the Fifth Amendment by making

843

an arbitrary and irrational distinction between oxycodone and hydrocodone. Id. at

116. Defendant argued hydrocodone and
oxycodone are substantially similar drugs,
used for the same purposes, and cause
similar effects. Id.
At the sentencing hearing, the district
court pointed out to Defendant that he
had not previously argued the disparity
between the hydrocodone and oxycodone
made the Controlled Substance Act unconstitutional as applied to him. Defendants
counsel responded, [t]hats true, Your
Honor. Id. at 210. The district court
stated Defendants argument renews a
request that [the district court] grant [Defendants] motion for a judgment of acquittal on Counts 1 and 2. Id. The court
said that it had previously ruled on the
motion, without having the benefit of seeing Defendants new arguments. Defendant responded he did not have a reason
to advance further legal argument with
respect to TTT the rationality that Congress drew between hydrocodone and oxycodone with respect to the disparity of the
sentences that are required with respect
to Count 2 as opposed to the minimum
mandatory of Count 1. Id. at 21011.
Defendant stated he did not want to advance new arguments until the district
court ruled on the Rule 29 motion. The
district court then expressed concern that
Defendant began his sentencing argument
acknowledging the district court has no
discretion under the statute, but later
[Defendant will] say [the district court] rejected [his new] arguments, and then [Defendant will] raise that up with the Court
of Appeals as if [the district court] had
time to address them. Id. at 211. Perceptive. Despite this reservation, the district court allowed Defendant to address
the new arguments. Defendants counsel
then stated,

Page: 38

Appellate Case: 14-4093

Document: 01019355232

844

Date Filed: 12/12/2014

715 FEDERAL REPORTER, 3d SERIES

I was going to attempt to address

them, but I really do think that we are
in a position where the minimum mandatory right now is the point of the
realm in light of the Courts ruling.
And I think that that is really a sentence that very few people in this courtroom think is proportionate when you
consider the nature of the situation we
have here and the realities of [Defendant] as a human beingTTTT And the
question of the Eighth Amendment is
proportionalityTTTT We believe that a
20year sentence in this case is essentially a death sentence for [Defendant],
could not possibly be proportionate given all the circumstances and facts of this
particular criminal caseTTTT Moreover,
as the Court well knows, the other argument was that if [Defendant] had not
prescribed Percocet for Mr. Wirick,
then the Court would be put in the
position where there would be no application of the minimum mandatory. And
the maximum under Lortab or hydrocodone is up to 15 years. There is no
rational distinction that I think medically you can make, politically you could
make, societally you could make between Lortab and Percocet when it
comes to prescribing. Thats irrational
use of legislative power, which we suggest is a violation of equal protectionTTTT
Id. at 212, 21415, 217.
The district court never ruled explicitly
on the new arguments. The district court
referenced the statute, then stated, I have
no discretion here. The sentence is 20
years imprisonmentTTTT Congress has
imposed this law, not me. Id. at 262.
Although Defendant does not explicitly
argue in his opening brief that a due process violation occurred, he does renew
both his Fifth Amendment and Eighth
Amendment argument under the same

heading. And after reviewing the record,

the Governments argument that Defendant waived the argument on appeal is
patently incorrect.
As to the Fifth
Amendment, to the district court, Defendant argued the Controlled Substances Act
was unconstitutional as applied because he
prescribed Lortab, a Schedule III substance, and Percocet, a Schedule II substance. Defendant argued those drugs are
essentially the same, yet have irrationally
different penalties. On appeal, Defendant
refined his argument to specify that hydrocodone mixtures are Schedule III substances and oxycodone mixtures are
Schedule II substances. Although Defendant improved his terminology on appeal,
Defendants as applied challenge to the
statute has not changed. As to the Eighth
Amendment, Defendant argues his sentence violates that amendments guarantee
not to be subject to excessive sanctions
because the harshness of the penalty outweighs the gravity of the offense.
The actual waiver question before us is
whether Defendant waived his Eighth
Amendment and Fifth Amendment arguments when he stated, I was going to
attempt to address them, but I really do
think that we are in a position where the
minimum mandatory right now is the point
of the realm in light of the Courts ruling.
In light of the district courts decision not
to rule on the new arguments, perhaps the
district court thought Defendant conceded
the argument. But out of an abundance of
caution, we will first review Defendants
Eighth Amendment issue before addressing Defendants Fifth Amendment issue.
A.
[24] In this Circuit, [i]n general, a
sentence within the limits imposed by statute is neither excessive nor cruel and unusual under the Eighth Amendment.
United States v. DelacruzSoto, 414 F.3d

Page: 39

Appellate Case: 14-4093

Document: 01019355232

Date Filed: 12/12/2014

U.S. v. MACKAY
Cite as 715 F.3d 807 (10th Cir. 2013)

1158, 1168 (10th Cir.2005). Here, Defendants sentence of 20 years was at the
statutory minimum. Moreover, Defendants sentence was below the advisory
Guideline range of 292365 monthsa
range that defines the national norm for
sentencing for this particular crime. Id.
In this case, the Government prosecuted
Defendant for stepping out of his role as a
doctor, becoming a criminal drug dealer,
and prescribing a controlled substance that
resulted in Wiricks death. The sentence
on count 1 does not resemble the sentences of disproportionate severity that
courts have struck down as cruel and unusual in the past. Id. (citing Weems v.
United States, 217 U.S. 349, 358, 364, 381,
30 S.Ct. 544, 54 L.Ed. 793 (1910) (discussing sentence of 15 years at hard labor for
falsifying a government form)). Accordingly, we conclude Defendants sentence
was not excessive and does not violate the
Eighth Amendments prohibition on cruel
and unusual punishment.
B.
[25] Having determined the district
court did not impose a sentence in violation of the Eighth Amendment, we now
turn to whether it imposed a sentence in
violation of the Fifth Amendments Due
Process Clause. When Congress enacted
the Controlled Substances Act, it established five schedules of controlled substances. Congress empowered the Attorney General to move a substance from one
schedule to another schedule and to add or
remove substances from the schedules. 21
U.S.C. 811(a). The Attorney General
must follow specified procedures when
adding a substance to a schedule.
First, the Attorney General must request a scientific and medical evaluation
from the Secretary of Health and Human Services (HHS), together with a
recommendation as to whether the sub-

845

stance should be controlled. A substance cannot be scheduled if the Secretary recommends against it. 201(b), 21
U.S.C. 811(b). Second, the Attorney
General must consider eight factors with
respect to the substance, including its
potential for abuse, scientific evidence of
its pharmacological effect, its psychic or
physiological dependence liability, and
whether the substance is an immediate
precursor of a substance already controlled. 201(c), 21 U.S.C. 811(c).
Third, the Attorney General must comply with the notice-and-hearing provisions of the Administrative Procedure
Act (APA), 5 U.S.C. 551559, which
permit comment by interested parties.
201(a), 21 U.S.C. 811(a). In addition, the Act permits any aggrieved person to challenge the scheduling of a
substance by the Attorney General in a
court of appeals. 507, 21 U.S.C. 877.
Touby v. United States, 500 U.S. 160, 162
63, 111 S.Ct. 1752, 114 L.Ed.2d 219 (1991).
We normally will not set aside a legislative
classification if any state of facts rationally justifying it is demonstrated to or perceived by the courts. United States v.
Szycher, 585 F.2d 443, 445 (10th Cir.1978).
And the Controlled Substances Act directly affects the health and safety of American citizens. The record before us on this
issue is thin. Rather than explain how the
Attorney General made an irrational decision in scheduling the drugs, Defendant
simply states [t]he CSAs legislative history and the relevant case law do not reveal
any rational explanation for which a physician convicted of unlawfully prescribing
Percocet has committed a sufficiently more
egregious crime than a physician convicted
of unlawfully prescribing Lortab, to justify
a mandatory 20year prison sentence.
(internal footnote omitted). We simply
cannot say the Attorney General acted irrationally on this record.

Page: 40

Appellate Case: 14-4093

846

Document: 01019355232

Date Filed: 12/12/2014

715 FEDERAL REPORTER, 3d SERIES

VII.
Finally, for the first time on appeal,
Defendant alleges the district court committed error when it sentenced him to a
general 240month sentence of imprisonment, rather than specifying individual
sentences for each offense. Nine of Defendants counts of conviction have a maximum statutory term of imprisonment below the 240 month statutory minimum
term of imprisonment for count 1. Defendant believes his sentence is illegal because the district court may have imposed
a sentence on counts 2, 47, 1517, and 108
that exceeds the statutory maximum. Ordinarily, we review a challenge to the legality of a sentence de novo. United
States v. Jones, 235 F.3d 1231, 1235 (10th
Cir.2000). But because Defendant raises
this issue for the first time on appeal, we
review for plain error.

permit imposition of the total punishment as the sentence on that count.

The sentence on each of the other
counts will then be set at the lesser of
the total punishment and the applicable
statutory maximum, and be made to run
concurrently with all or part of the longest sentence.

[26, 27] Defendants sentence was governed by 2011 United States Sentencing
Guideline 5G1.2(b), which states that
the sentence imposed on each other count
shall be the total punishment. Section
5G1.2(c) provides that [i]f the sentence
imposed on the count carrying the highest
statutory maximum is adequate to achieve
the total punishment, then the sentences
on all counts shall run concurrently, except
to the extent otherwise required by law.
So, what happens where the total punishment exceeds the statutory maximum on
some counts of conviction? The application notes provide guidance:
Usually, at least one of the counts will
have a statutory maximum adequate to

U.S. Sentencing Guideline Manuel 5G1.2

cmt. n.1 (2011). The 240month total sentence is problematic only for counts 2, 47,
1517, and 108. But did the district court
plainly err by failing to impose a sentence
on each count? A district court imposes
an illegal sentence when it sentences a
defendant to a term of incarceration that
exceeds the statutory maximum. United
States v. GonzalezHuerta, 403 F.3d 727,
739 n. 10 (10th Cir.2005). Such an illegal
sentence triggers per se, reversible, plain
error. Id. In this case, the district court
announced at sentencing that Defendant
would serve a term of imprisonment of 240
months, a total sentence below the advisory guideline range, but yet exceeded the
statutory maximum sentence on nine
counts. We could easily assume from the
Guidelines that the district court sentenced
Defendant to 240 months on counts 1, 8
14, 1826, 3235, 4142, 8184, 120121,
and 123124; that he sentenced Defendant
to 180 months on count 2; 120 months on
counts 47 and 108; and 48 months on
counts 1517. And we could further assume that the sentences were imposed to
run concurrently. But the judgment is
unclear whether the district court intended
to impose a 240month sentence on each
count, a clearly illegal sentence.22 See e.g.

22. The district court stated the sentence it

imposed, the statutory minimum on count 1,
was too long, but Congress has imposed
this law, not me. Appellees Supp. Appx,
vol. 1, 262. The court obviously varied downward in imposing a sentence of 240 months,
but did not articulate its reasoning. After a
sentencing judge considers all of the factors

listed in 18 U.S.C. 3553(a) and makes an

individualized assessment based on the facts
presented, the judge must adequately explain
the chosen sentence to allow for meaningful
appellate review and to promote the perception of fair sentencing. Gall v. United States,
552 U.S. 38, 50, 128 S.Ct. 586, 169 L.Ed.2d
445 (2007). Accordingly, at re-sentencing,

Page: 41

Appellate Case: 14-4093

Document: 01019355232

Date Filed: 12/12/2014

847

WILSON v. MONTANO
Cite as 715 F.3d 847 (10th Cir. 2013)

United States v. Ward, 626 F.3d 179, 184

(3d Cir.2010); United States v. Cummings,
395 F.3d 392, 400 (7th Cir.2005); United
States v. Woodard, 938 F.2d 1255, 1257
(11th Cir.1991). Accordingly, a limited remand is necessary to allow the district
court to clarify the sentence for the record.
AFFIRMED IN PART and REMANDED for resentencing.

,
Michael WILSON, Sr., Plaintiff
Appellee,
Jesse Ortiz; Oscar Leyva; Patrick
Marquez; Mark Sanchez; Dustn
Sarrett, Plaintiffs,
v.
Lawrence MONTANO, Deputy; Fred
Torres, Deputy; Joe Chavez, Warden;
Rene Rivera, former Sheriff; DefendantsAppellants,
John Doe, VCDC booking officer or employee; Martin Benavidez, Officer;
Mike Chavez, former Chief of Police;
Brent Woodard; Nick Balido, former
Los Lunas Police Department, Chief
of Police; Louis Burkhard, Sheriff;
Delinda Chavez; Joseph Chavez; Roy
A. Cordova; Greg Jones, Bosque
Farms Police Department, Police
Chief; Roy Melnick, Los Lunas Police
Department, Chief of Police; Dan
Robb, Belen Police Department, Chief
the court needs to explain why the sentence it
imposes is sufficient, but not greater than

of Police; Steven Roberts; Derek

Williams; Joe Stidham, Former Bosque Farms Police Department, Police
Chief, Defendants.
No. 122051.
United States Court of Appeals,
Tenth Circuit.
May 3, 2013.
Background: Arrestee brought 1983
action against county sheriff, several deputies, and warden of countys detention center, alleging that he was unlawfully detained and violation of his constitutional
right to prompt probable cause determination. The United States District Court for
the District of New Mexico denied defendants motion to dismiss. Defendants appealed.
Holdings: The Court of Appeals, Murphy,
Circuit Judge, held that:
(1) qualified immunity was unwarranted
on ground that it was not clearly established which defendants had duty to
ensure prompt probable cause hearing;
(2) arrestee did not sufficiently allege that
assisting deputy was personally involved in violation of his right to
prompt probable cause hearing;
(3) arrestee sufficiently alleged that arresting deputy was personally involved
in violation of his right to prompt probable cause hearing; and
(4) arrestee sufficiently alleged that warden and sheriff established policies of
customs that led to arrestees constitutional injury.
Affirmed in part and reversed and remanded in part.
necessary to satisfy the sentencing objectives.

Page: 42

Appellate Case: 14-4093

Document: 01019355233

Date Filed: 12/12/2014

Page: 1

ATTACHMENT C
United States v. MacKay,
1:10CR00094-DB
Amended Judgment 7/9/14

Case 1:10-cr-00094-DB Document 395 Filed 07/09/14 Page 1 of 6

Appellate Case: 14-4093 Document: 01019355233 Date Filed: 12/12/2014 Page: 2

Case 1:10-cr-00094-DB Document 395 Filed 07/09/14 Page 2 of 6

Appellate Case: 14-4093 Document: 01019355233 Date Filed: 12/12/2014 Page: 3

Case 1:10-cr-00094-DB Document 395 Filed 07/09/14 Page 3 of 6

Appellate Case: 14-4093 Document: 01019355233 Date Filed: 12/12/2014 Page: 4

Case 1:10-cr-00094-DB Document 395 Filed 07/09/14 Page 4 of 6

Appellate Case: 14-4093 Document: 01019355233 Date Filed: 12/12/2014 Page: 5

Case 1:10-cr-00094-DB Document 395 Filed 07/09/14 Page 5 of 6

Appellate Case: 14-4093 Document: 01019355233 Date Filed: 12/12/2014 Page: 6

Case 1:10-cr-00094-DB Document 395 Filed 07/09/14 Page 6 of 6

Appellate Case: 14-4093 Document: 01019355233 Date Filed: 12/12/2014 Page: 7

Appellate Case: 14-4093

Document: 01019355234

Date Filed: 12/12/2014

Page: 1

ATTACHMENT D
United States v. MacKay,
1:10CR00094-DB
Amended Judgment 7/10/14

Case 1:10-cr-00094-DB Document 396 Filed 07/10/14 Page 1 of 6

Appellate Case: 14-4093 Document: 01019355234 Date Filed: 12/12/2014 Page: 2

Case 1:10-cr-00094-DB Document 396 Filed 07/10/14 Page 2 of 6

Appellate Case: 14-4093 Document: 01019355234 Date Filed: 12/12/2014 Page: 3

Case 1:10-cr-00094-DB Document 396 Filed 07/10/14 Page 3 of 6

Appellate Case: 14-4093 Document: 01019355234 Date Filed: 12/12/2014 Page: 4

Case 1:10-cr-00094-DB Document 396 Filed 07/10/14 Page 4 of 6

Appellate Case: 14-4093 Document: 01019355234 Date Filed: 12/12/2014 Page: 5

Case 1:10-cr-00094-DB Document 396 Filed 07/10/14 Page 5 of 6

Appellate Case: 14-4093 Document: 01019355234 Date Filed: 12/12/2014 Page: 6

Case 1:10-cr-00094-DB Document 396 Filed 07/10/14 Page 6 of 6

Appellate Case: 14-4093 Document: 01019355234 Date Filed: 12/12/2014 Page: 7