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.
M. Schad, FEDERAL PUBLIC DEFENDER SOUTHERN DISTRICT OF OHIO,
Cincinnati, Ohio, for Appellant in 16-6474.
L. Metzger III, ADAMS, STEPNER, WOLTERMANN & DUSING,
PLLC, Covington, Kentucky, for Appellant in 16-6676.
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).
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.
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.
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
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.
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.
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.
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.
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. ...