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United States v. Elliott

United States Court of Appeals, Sixth Circuit

November 30, 2017

United States of America, Plaintiff-Appellee,
Carroll Lloyd Elliott; Lucille M. Frial-Carrasco; Patricia Ann Solomon, Defendants-Appellants.

         Appeal from the United States District Court for the Eastern District of Kentucky at London. No. 6:13-cr-00040-7-Amul R. Thapar, District Judge.

         ON BRIEF:

          Kevin M. Schad, FEDERAL PUBLIC DEFENDER SOUTHERN DISTRICT OF OHIO, Cincinnati, Ohio, for Appellant in 16-6474.

          Edward L. Metzger III, ADAMS, STEPNER, WOLTERMANN & DUSING, PLLC, Covington, Kentucky, for Appellant in 16-6676.

          Travis A. Rossman, ROSSMAN LAW, PLLC, Barbourville, Kentucky, for Appellant in 16-6683.

          Charles P. Wisdom, Jr., Dmitriy Slavin, UNITED STATES ATTORNEY'S OFFICE, Lexington, Kentucky for Appellee.

          Before: KEITH, ROGERS, and McKEAGUE, Circuit Judges.


          ROGERS, Circuit Judge.

          Defendants are all former employees of a South Florida pill mill. Carroll Elliot was a security guard, Lucille Frial-Carrasco a physician and medical director, and Patricia Solomon a physician assistant at the clinic in question. They were all convicted in the district court below of conspiracy to distribute oxycodone and sentenced to terms in prison and forfeiture of proceeds. Frial-Carrasco argues that venue was improper in the Eastern District of Kentucky because the customers who were known to be taking large amounts of pills back home to Kentucky were merely purchasers and not coconspirators, and thus no conspirator committed an overt act in Kentucky. Venue in the Eastern District of Kentucky was proper, however, because the conspiracy's intended effects were in Eastern Kentucky, and a conspirator can be tried at the place where a conspiracy targets its acts. The defendants in this combined appeal raise several additional arguments to challenge their convictions, but these arguments lack merit. However, the calculation of forfeiture amounts requires a remand in light of the Supreme Court's intervening decision in Honeycutt v. United States, 137 S.Ct. 1626, 1635 (2017).


         From 2008 to 2014, the Pain Center of Broward ("PCB") in Ft. Lauderdale, Florida, was the place to go to find cheap pain pill prescriptions. Indeed, the banner hanging in the waiting room advertised exactly that: "Pain Center of Broward, lowest cost prescriptions." At just $300 for an initial appointment, $200 for a repeat visit, and with discounts for loyal customers, a patient could leave the PCB with a monthly prescription for 180 30-milligram and 90 15-milligram pills of oxycodone. By way of context, another doctor might prescribe a new patient two 5-milligram pills per day. Business at the PCB boomed. At its height, 60 to 65 patients a day arrived at the PCB. They would overcrowd the waiting room and spill over into the parking lots, creating a mass so substantial that the clinic's staff feared that the crowds would attract the suspicion of federal agents.

         The PCB was the brainchild of its owner, Joel Shumrak. Shumrak was not a doctor, nor did he possess medical training. As Shumrak testified at trial, the reason for the PCB's existence was straightforward: "[i]t was a good moneymaking arrangement." Shumrak's assessment was accurate. During its existence, the clinic generated over $10 million in profits. To earn this sum required more business than the local market alone could provide. Indeed, only about half of the PCB's customers came from Florida. Instead, the clinic grew prosperous on a flow of out-of- state traffic, with prospective patients traveling to the clinic from locations far outside Ft. Lauderdale, including from Ohio, Georgia, and Massachusetts.

         Although the PCB saw patients from states around the nation, Kentucky was among its richest sources. Around 20 percent of the clinic's patients, some 1, 800 people, were Kentucky residents. Seven of Eastern Kentucky's largest drug trafficking organizations used the PCB as their source for opioid pills. At the zenith of the PCB's business, one or more such trafficking groups a week, seven to ten people per crew, would travel to the clinic for a new set of prescriptions, to obtain pills to sell in Kentucky. Kentucky patients journeyed to the PCB in large part because government crackdowns had closed unscrupulous providers closer to home, and the PCB supplied prescriptions unavailable in Kentucky. The fact of the PCB's Kentucky clientele was not a secret at the clinic. Kentucky license plates filled the PCB parking lot. Some visitors would even sleep in their cars overnight, exhausted by the journey from Kentucky to Ft. Lauderdale. Kentucky patients continued to flock to the clinic, up until and including the day it closed.

         Carroll Elliott began work as a security guard at the PCB in January of 2011. Shumrak hired Elliott because Shumrak feared that the large crowd of patients loitering around the outside of the PCB might arouse law enforcement's suspicions. Elliott spent his days keeping order in and around the clinic. He passed most of his time in the parking lot, guarding the front entrance and ensuring that no patients dawdled outside. Elliott also monitored the area around the clinic for those who might prove too attentive to the PCB, once ordering an undercover agent conducting surveillance off the property. When Elliott observed DEA agents or Ft. Lauderdale police watching the building, he would enter the clinic to warn patients of their presence. Elliott's duties were not confined to the periphery of the PCB. When rowdy patients clashed in the clinic's waiting rooms, Elliott would usher those troublemakers out. Elliott would also escort patients from the entrance of the PCB into waiting rooms. Sometimes, patients would offer Elliott money to reduce their waiting times. Elliott would accept the cash, and move those patients to the front of the line. When a doctor fell ill, Elliot would shuttle prescriptions from the clinic, to the doctor for signature, and then back again to the waiting patients.

          Lucille Frial-Carrasco took a job at the PCB in 2012. She worked primarily as a doctor at the clinic, and also spent a term as its medical director. Frial-Carrasco's practice lay in the prescription of oxycodone. She wrote her average patient a prescription of 120 to 150 oxycodone tablets for a month's use. At trial, she testified that such amounts are most commonly appropriate for patients with traumatic injuries or in end-of-life care. Many of Frial-Carrasco's patients were Kentucky residents. She knew that they carpooled down to the PCB together, and considered that fact to be one of many "red flag[s]" that the PCB was a "pill mill." Throughout her tenure, Frial-Carrasco observed several other things she considered to be warning signs about the PCB's legitimacy, including the types of its patients, the distance they traveled to the clinic, the quantities of drugs prescribed, the clinic's cursory examinations, and its advertising techniques.

         Frial-Carrasco also had a testy relationship with Shumrak. She testified that he would admonish her for the slowness of her appointments. (Frial-Carrasco aimed to spend 15 minutes per patient.) In January of 2014, Frial-Carrasco began to take greater initiative in reviewing patient files and recommending more tailored treatments. Shumrak objected to Frial-Carrasco's comparatively more measured pace. After several months of conflict between her and Shumrak, Frial-Carrasco resigned from the clinic a few days before its closure in June 2014.

         Patricia Solomon joined the PCB as a physician assistant in 2010. As with Frial-Carrasco, Solomon's work involved generating drug prescriptions. With most patients, Solomon would examine them and fill out a form prescribing opioids. Solomon's examinations were brief, usually involving perfunctory questions about diet and exercise, and minimal physical contact. Because physician assistants in Florida cannot write prescriptions on their own authority, Solomon would bring the forms to a doctor for signature; those forms were almost always accepted. However, no doctor supervised Solomon while she gave the patients exams, or filled out their prescription amounts. Solomon would also assist doctors as they examined patients and fill out the prescriptions the doctors authorized. Occasionally, Solomon would suggest that a doctor was overprescribing and recommend a lower dose; the doctor would usually follow that advice. Many of the patients Solomon saw were Kentucky residents, and Solomon knew that the patients traveled to the clinic for prescriptions. Solomon continued working at the PCB until it closed.

         On June 3, 2014, DEA agents raided the PCB. They arrived with an arrest warrant for Shumrak and a search warrant for the clinic. The agents entered with weapons drawn, but quickly holstered them after securing the building. They arrested Shumrak, handcuffed him, and led him away. The agents then escorted clinic employees to a business office in the front of the clinic, and began to search the rest of the building. The lead DEA agent, Officer Dalrymple, told the employees, including Patricia Solomon, "that none of them were under arrest, " but that "the agents" would like to talk to each one of them individually" after the agents completed the search. This search took most of the morning. During that time, clinic employees who needed to use the restroom, which was located in the area being searched, required an escort to prevent them from freely moving about that secured area. The searchers did not otherwise prohibit the employees from leaving the business office, and the front door to the clinic lay open the whole time.

         Around 1 p.m., a DEA agent and an investigator from the Florida Department of Health and Human Services brought Solomon to an examination room in the back of the clinic for an interview. Solomon was familiar with this examination room, having frequently examined patients in it. The room was narrow, about twenty-five to thirty-five feet in length, and the agents sat ten to fifteen feet away from Solomon. The door to the room was closed but not locked. The agents informed Solomon that she was not under arrest, and then proceeded to question her about her employment at the clinic. During that conversation, Solomon made a series of incriminating statements, including that she knew many clinic patients came from Kentucky, that the patients had traveled to Florida expressly for medical treatment, and that the clinic saw few Florida residents. Approximately 45 minutes into the interview, DEA Agent Dalrymple entered the room. After about 5 minutes, the other agents concluded their questioning and Agent Dalrymple began speaking with Solomon. ...

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