Filed: Apr. 09, 2007
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 05-4263 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus EMMANUEL THAD EREME, Defendant - Appellant. No. 05-4327 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus EMMANUEL THAD EREME, Defendant - Appellant. No. 06-4575 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus EMMANUEL THAD EREME, Defendant - Appellant. Appeals from the United States District Court for the District of Maryland, at Greenbelt. Peter J. M
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 05-4263 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus EMMANUEL THAD EREME, Defendant - Appellant. No. 05-4327 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus EMMANUEL THAD EREME, Defendant - Appellant. No. 06-4575 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus EMMANUEL THAD EREME, Defendant - Appellant. Appeals from the United States District Court for the District of Maryland, at Greenbelt. Peter J. Me..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4263
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
EMMANUEL THAD EREME,
Defendant - Appellant.
No. 05-4327
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
EMMANUEL THAD EREME,
Defendant - Appellant.
No. 06-4575
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
EMMANUEL THAD EREME,
Defendant - Appellant.
Appeals from the United States District Court for the District of
Maryland, at Greenbelt. Peter J. Messitte, District Judge. (CR-
02-478-PJM; 8:02-cr-00478-PJM-2)
Submitted: February 9, 2007 Decided: April 9, 2007
Before WILLIAMS, MOTZ, and SHEDD, Circuit Judges.
Nos. 05-4263, 06-4575 affirmed; No. 05-4327 dismissed by
unpublished per curiam opinion.
Steven Gene Berry, Rockville, Maryland, for Appellant. Rod J.
Rosenstein, United States Attorney, Deborah Johnston, Bryan E.
Foreman, Sandra Wilkinson, Assistant United States Attorneys,
OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Emmanuel Thad Ereme appeals his convictions for conspiracy to
dispense, distribute, and possess with intent to distribute and
unlawful dispensation of Schedule II controlled substances (No. 05-
4263). In addition, Ereme appeals the denial of his motion for a
new trial (No. 06-4575). Finding no error, we affirm.1
I
Beginning in 1997, Ereme, a licensed pharmacist, owned and
operated Hremt Pharmacy (“Hremt”) in District Heights, Maryland.2
Although Ereme initially served as the sole pharmacist at Hremt, he
gradually added other pharmacists to his staff. In addition, Ereme
employed pharmacy technicians who assisted with the filling of
prescriptions.
In September 1999, the Maryland Drug Control Office,
responding to an anonymous tip regarding Hremt’s practices,
conducted an audit on generic and brand Percocet. The audit
uncovered several irregularities, including facsimile and
1
Ereme also appeals an order of forfeiture entered by the
district court (No. 05-4327). By not raising the validity of the
forfeiture order in his opening brief, Ereme has waived further
consideration of this appeal. Edwards v. City of Goldsboro, 178
F.3d 231, 241 n.6 (4th Cir. 1999). Therefore, we dismiss the
appeal in No. 05-4327.
2
We recite the facts in the light most favorable to the
Government. See United States v. Murphy, 35 F.3d 143, 144 (4th
Cir. 1994).
3
photocopied prescriptions, large quantities of Schedule II drugs
being dispensed, and the filling of controlled substance
prescriptions whose refill interval was too soon. The case was
referred to the Drug Enforcement Administration (“DEA”), which
subsequently received confirmation as to the irregularities
discovered earlier. The DEA investigation led to a search of
Hremt’s premises on November 2, 2000. This search and further
audits indicated that prescriptions written for Joseph Scirigione
and prescriptions written by Dr. Beverly Wheatley were suspect.
Between May 8, 1997, and December 31, 2001, Joseph Scirigione
and his common law wife, Theresa Gant, obtained 26,400 tablets of
Hydromorphone (Dilaudid) and 32,850 tablets of Dolophine
(Methadone) from Hremt. These drugs were obtained through 310
prescriptions, 298 of which were for Scirigione and were presented
by him. These prescriptions were written on photocopied forms with
the letterhead of various medical practices. However, 300 of the
prescriptions bore the signature and DEA number of Dr. Robert Hunt
and ten bore the signature of Dr. Michelle Craig. Later testimony
by Dr. Hunt indicated that his signature was forged on the
prescriptions, that a physician would not have issued the number of
prescriptions which Scirigione presented, and that the dosages of
medication in Scirigione’s prescriptions would have proved fatal
for any patient.
4
Dr. Beverly Wheatley was a licensed dentist who practiced from
1977 to 2001 in the District of Columbia and Maryland. Based on
the evidence disclosed in the 2001 search of Hremt, DEA
investigators searched Wheatley’s office in April, 2002. There
they discovered many irregularities, including a sign advertising
the sale of prescriptions for $25 each. Wheatley was arrested and
pled guilty to conspiracy to distribute and possess with intent to
distribute Schedule II substances. Wheatley testified that she
abused prescription medications herself and that she sold
prescriptions to patients and directed them to Hremt.
Significantly, Wheatley also testified that she signed the
prescriptions she issued using various names, including her maiden
name, her daughter’s name, and her husband’s name.
On July 21, 2004, Ereme was indicted under a third superseding
indictment for conspiracy to dispense, distribute, and possess with
intent to distribute Schedule II controlled substances, including
Oxycodone (Percocet or Roxicet), Hydromorphone (Dilaudid), and
Dolophine (Methadone). The case was tried to a jury, which found
Ereme guilty as to all counts. Ereme now appeals, raising several
arguments for our consideration.
5
II
A.
Ereme first contends that the district court improperly
limited his testimony on direct examination and thereby infringed
his constitutional right to present a defense. Ereme bases this
contention on the district court’s denial of his request for
additional time in which to complete his defense after he had
exhausted the seven days granted by the district court. We review
this claim under an abuse of discretion standard, and we will not
disturb the district court’s decision unless it acted arbitrarily
or irrationally. United States v. Moore, 27 F.3d 969, 974 (4th
Cir. 1994).
While a defendant has a constitutional right to testify as
part of his own defense, Rock v. Arkansas, 483 U.S. 44, 51-52
(1987), this right is subject to reasonable restrictions, United
States v. Scheffer,
523 U.S. 303, 308 (1998). Specifically, a
district court, in its discretion, may exercise reasonable control
over the interrogation of witnesses and the presentation of
evidence in order to avoid needless waste of time. Fed. R. Evid.
611(a). A district court’s actions in this regard do not abridge
a defendant’s right to present a defense unless they are arbitrary
or disproportionate to the purposes they are designed to serve.
Scheffer, 523 U.S. at 308.
6
The district court granted Ereme’s original request for seven
days in which to present his defense. At the completion of this
time, the district court permitted Ereme to continue his defense on
the morning of the eighth day but refused any additional time.
This restriction was reasonable and does not constitute an abuse of
discretion. Ereme was aware of the district court’s structure of
the trial schedule and of the time allotted to each of the parties.
While Ereme did not testify as to the details of each of the more
than 800 transactions involved, he did testify about his customers
in general and about the Scirigione and Wheatley cases in
particular. As the district court noted, Ereme effectively
answered the charges against him and contested each of the elements
of those charges. Further, he answered the allegations made by his
employees regarding his knowledge of the illegal prescriptions and
his role in any conspiracy. Ereme has failed to show what
additional evidence would have been introduced through his
continued testimony, other than further denials of the individual
transactions involved. In these circumstances, the district court
did not abuse its discretion by placing reasonable time constraints
on Ereme’s testimony.
B.
Ereme next challenges the sufficiency of the evidence
supporting his conviction for conspiracy to dispense, distribute,
and possess with intent to distribute controlled substances. “In
7
reviewing the sufficiency of the evidence . . . our role is limited
to considering whether there is substantial evidence, taking the
view most favorable to the Government, to support” the conviction.
United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997)
(internal punctuation omitted). “[S]ubstantial evidence is
evidence that a reasonable finder of fact could accept as adequate
and sufficient to support a conclusion of a defendant’s guilt
beyond a reasonable doubt.” United States v. Burgos,
94 F.3d 849,
862 (4th Cir. 1996) (en banc).
As relevant here, a conviction for conspiracy in violation of
21 U.S.C. § 846 requires the Government to prove beyond a
reasonable doubt (1) that there was an agreement between two or
more persons to unlawfully dispense, distribute or possess with
intent to distribute Schedule II controlled substances; (2) that
the defendant knew of the conspiracy; and (3) that the defendant
knowingly and voluntarily became a part of the conspiracy. Burgos,
94 F.3d at 857. Ereme contends that he did not knowingly and
voluntarily become a part of any conspiracy. The element of
knowledge, however, may be satisfied by a showing that a defendant
acted with willful blindness, as willful blindness is a form of
constructive knowledge which “allows the jury to impute the element
of knowledge to the defendant if the evidence indicates that he
purposely closed his eyes to avoid knowing what was taking place
around him.” United States v. Schnabel,
939 F.2d 197, 203 (4th
8
Cir. 1991).3 Because willful blindness serves as a proxy for
knowledge, there is nothing inconsistent in saying that a defendant
knowingly joined a conspiracy because he was willfully blind to the
conspiracy's existence and purpose. See United States v. McIver,
470 F.3d 550, 563-64 (4th Cir. 2006) (noting that willful blindness
is sufficient to establish knowledge of a conspiracy). As for
voluntariness, the Government need not show that a defendant
entered a conspiracy with full knowledge of its details or that he
participated in all phases of the conspiracy; rather, it need only
show that he willfully participated in the conspiracy at some stage
with knowledge of the unlawful nature of his participation. United
States v. Capers,
61 F.3d 1100, 1108 (4th Cir. 1995); United States
v. Mabry,
953 F.2d 127, 130 (4th Cir. 1991). Furthermore, a
defendant’s voluntary participation in a conspiracy may be proven
through circumstantial evidence.
Capers, 61 F.3d at 1107.
There is ample evidence which supports a finding that Ereme
voluntarily entered the conspiracy while willfully blind to its
aims. Expert testimony indicated that a reasonable pharmacist
3
Ereme maintains that the district court erred in refusing to
submit to the jury his requested charge on willful blindness. We
have examined the willful blindness instruction given by the
district court, and we find no abuse of discretion. See United
States v. Whittington, 26 F.3d 456, 462 (4th Cir. 1994) (noting
requirements for willful blindness instruction). Ereme also argues
that the district court’s instruction on good faith was not
sufficient. Because Ereme raised this argument in a Fed. R. App.
P. 28(j) letter rather than in his opening brief, we deem it
waived.
Edwards, 178 F.3d at 241 n.6.
9
would have stopped filling prescriptions based upon the numerous
signs of fraud present in the Scirigione and Wheatley cases. Other
testimony noted that doctors do not repeatedly write overlapping
30-day prescriptions for Dilaudid or Methadone, as the fraudulent
prescriptions presented by Scirigione had done. Sam Kuti, a
pharmacist who worked under Ereme, testified that he alerted Ereme
to his suspicions regarding the Scirigione prescriptions but that
Ereme simply instructed Kuti to refer the questionable
prescriptions to him. Further, Wheatley testified that she
discussed her addiction problem with Ereme who advised her how to
write prescriptions to avoid insurance company inquiries. Finally,
testimony indicated that Scirigione paid Ereme far more than the
market value for his prescriptions. This evidence, taken as a
whole, sufficiently supports Ereme’s convictions.4
C.
Finally, Ereme contends that the district court abused its
discretion by denying his motion for a new trial based on newly
discovered evidence. Ereme filed the motion on November 14, 2005,
and based it upon the statements Rodney Jackson, a co-conspirator,
made at his sentencing. We review the district court’s denial of
a motion for new trial for abuse of discretion. United States v.
4
Ereme also maintains that the Government’s theory of
conspiratorial liability under Pinkerton v. United States, 328 U.S.
640 (1946), was defective. We have considered this argument, and
we reject it.
10
Fulcher, 250 F.3d 244, 249 (4th Cir. 2001). Having reviewed the
record and the submissions of the parties, we agree with the
Government that the district court did not abuse its discretion
when it denied Ereme’s motion for a new trial. We therefore affirm
based on the reasoning of the district court. United States v.
Ereme, 8:02-cr-478-PJM-2 (D. Md. 2006).
III
Based on the foregoing, we affirm the judgment of the district
court in No. 05-4263 and No. 06-4575, and we dismiss the appeal in
No. 05-4327. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
Nos. 05-4263, 06-4575 AFFIRMED;
No. 05-4327 DISMISSED
11
