UNITED STATES OF AMERICA, Plaintiff-Appellee, v. RICKY JOE NELSON,
Defendant-Appellant.
No. 02-6183
UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
72 Fed. Appx. 837; 2003 U.S. App. LEXIS
17162
August 19, 2003, Filed
NOTICE: THIS ORDER WAS WITHDRAWN BY THE COURT. [**1]
RULES OF THE TENTH CIRCUIT COURT OF APPEALS MAY LIMIT CITATION TO UNPUBLISHED
OPINIONS. PLEASE REFER TO THE RULES OF THE UNITED STATES COURT OF APPEALS FOR
THIS CIRCUIT.
SUBSEQUENT HISTORY: Opinion
withdrawn by, Rehearing granted by, Remanded by United States v. Nelson, 78 Fed.
Appx. 695, 2003 U.S. App. LEXIS 21346 (10th Cir. Okla., Oct. 21, 2003)
COUNSEL: For United States of America, Plaintiff -
Appellee: Robert G. McCampbell, U.S. Attorney, Office of the United States
Attorney, Oklahoma City, OK.
For Ricky Joe
Nelson, Defendant - Appellant: Thomas D. McCormick, Oklahoma City, OK.
JUDGES: Before EBEL, HENRY, and HARTZ, Circuit
Judges.
* After
examining the briefs and appellate record, this panel has determined unanimously
to grant the parties' request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This Order and Judgment is
not binding precedent, except under the doctrines of law of the case, res
judicata, and collateral estoppel. The court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under the
terms and conditions of 10th Cir. R. 36.3.
On direct appeal,
defendant-appellant Ricky Joe Nelson, a doctor, challenges [*838] his
conviction for conspiracy to prescribe painkillers illegally in violation of 21
U.S.C. § 841(a)(1), n1 and for conspiracy to launder the proceeds of those sales
outside the United States in violation of 18 U.S.C. § 1956(h). n2 First, Nelson
argues that there was insufficient evidence to support the conviction against
him. (Aplt. Br. at 4-7.) We examine this objection below. Second, Nelson asserts
that the trial court improperly instructed the jury in stating that it was
unlawful for a person knowingly or intentionally to distribute a controlled
substance "outside the usual course of medical practice or without legitimate
purpose," when this instruction should have used the word "and" instead of "or."
(Aplt. Br. at 8.) But, based on an examination of the record, the trial court
did properly use the word "and" in its instructions to the jury. (Jury
Instructions, ROA, Doc. No. 34, PP 6, 7 (relating that it is unlawful for a
person knowingly or intentionally to distribute a controlled substance "outside
the usual course of medical practice and without [**3] legitimate
purpose") (emphasis added) [hereinafter Jury Instructions]); see also Conference
with Counsel, ROA Vol. IV, Tr. at 405-07 (agreeing to use the word "and" in
instructions to the jury). Accordingly, Nelson has no argument on appeal
regarding the wording of the jury instructions, and we consider only his
argument regarding the sufficiency of evidence to support his conviction. We
find sufficient evidence to support the jury's verdict and AFFIRM Nelson's
conviction.
n1 According to 21
U.S.C. § 841(a)(1): "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." In order to obtain a conviction against a
physician for violation of this statute, the prosecution must show that "(1)
that he distributed or dispensed a controlled substance, (2) that he acted
knowingly and intentionally, and (3) that he did so other than for a legitimate
medical purpose and in the usual course of his professional practice." United
States v. Rosen, 582 F.2d 1032, 1033 (5th Cir. 1978) (citing United States v.
Bartee, 479 F.2d 484 (10th Cir. 1973)). [**4]
n2 According to 18 U.S.C. § 1956(h):
Whoever transports, transmits, or transfers, or
attempts to transport, transmit, or transfer a monetary instrument or funds from
a place in the United States to or through a place outside the United States . .
. with the intent to promote the carrying on of specified unlawful activity . .
. knowing that the monetary instrument or funds involved in the transportation,
transmission, or transfer represent the proceeds of some form of unlawful
activity and knowing that such transportation, transmission, or transfer is
designed in whole or in part . . . to conceal or disguise the nature, the
location, the source, the ownership, or the control of the proceeds of specified
unlawful activity; or . . . to avoid a transaction reporting requirement under
State or Federal law, shall be sentenced to a fine of not more than $ 500,000 or
twice the value of the monetary instrument or funds involved in the
transportation, transmission, or transfer whichever is greater, or imprisonment
for not more than twenty years, or both. . . . (h) [And] any person who
conspires to commit any offense defined in this section or section 1957 shall be
subject to the same penalties as those prescribed for the offense the commission
of which was the object of the conspiracy.
We review whether evidence is
sufficient to support a jury's verdict de novo. United States v. Lewis, 240 F.3d
866, 870 (10th Cir. 2001) (citing United States v. Jackson, [*839]
213 F.3d 1269, 1283 (10th Cir. 2000)). On appeal, however, we ask only "whether,
when considered in the light most favorable to the government, a reasonable jury
could have found the defendant guilty beyond a reasonable doubt." Id. (citing
United States v. Hanzlicek, 187 F.3d 1228, 1239 (10th Cir. 1999)).
According to the evidence presented at trial, Nelson and
his co-conspirators in Oklahoma City created a website called Nation
Pharmacy.com through which consumers could supposedly obtain both prescription
and non-prescription drugs. (Tr. 22-30.) However, almost all of the drugs
distributed through the website were controlled substances, and the vast
majority were hydrocodone, a powerful and addictive painkiller. (Tr. 61, 103,
159; Aple. Br. at 2.) Customers would select the drug of their choice from the
website, fill out a short questionnaire that would be sent to Nelson to review,
and he would sign a prescription for the medication to be filled at his
co-conspirator's [**6] pharmacy. (Tr. at 22, 31-32, 102, 297.) Nelson
traveled periodically to the pharmacy and signed hundreds to thousands of
prescription forms at a time. (Tr. 62-65, 105.) The pharmacy paid him for each
prescription written, and filled the orders at inflated prices. (Tr. 348; Aplt.
Br. at 3.) At Nelson's direction, the $ 175,000 that he was paid for signing the
prescriptions was wired to an account that he controlled outside the United
States at the Bank of Antigua. (Tr. 345-48.) Nelson never once examined the
patients for whom he signed prescriptions, and did not dispute that his actions
in this regard were outside the bounds of accepted medical practice. (Tr. 139,
173, 179, 272, 335.) In mid-December 2000, the Oklahoma State Board of Medical
Licensure and Supervision suspended Nelson's license, and, in early March of
2001, the Oklahoma State Pharmacy Board shut down his co-conspirator's pharmacy.
(Aple. Br. at 5.)
After examining the evidence
presented at trial in the light most favorable to the government, we conclude
that a reasonable jury could have found Nelson guilty of conspiracy to prescribe
prescription drugs illegally and guilty of conspiracy to launder the proceeds of
those [**7] sales outside the United States beyond a reasonable
doubt. Lewis, 240 F.3d at 870. We therefore AFFIRM his conviction for these
crimes.
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