U.S. v. Mikaitis

In prosecution on charges that defendant-doctor engaged in conspiracy with others in weight loss clinic to distribute controlled substances outside usual course of professional practices and without legitimate medical purpose, Dist. Ct. did not err in giving jury “ostrich” instruction under circumstances where defendant testified that he was unaware that others (non-doctors) at clinic were dispensing said drugs to patients without physician review, and that he did not knowingly become member of conspiracy with intent to advance conspiracy. Ostrich instruction was proper, since there was ample evidence that showed that defendant subjectively believed that there was high probability that he was participating in criminal activity, and that he took specific deliberate actions to avoid learning of said criminal activity, where defendant: (1) physically avoided front desk of clinic and clinic’s file storage; (2) came to clinic only once per week and reviewed only handful of patients files to determine whether patients qualified for drug treatment; (3) was aware that clinic initially ordered under defendant’s DEA number 40,000 pills, and he re-routed future pill shipments to clinic; and (4) admitted that drug suppliers sent 520,000 pills under defendant’s DEA number. Moreover, jury could conclude that defendant suspected that meager number of patient files he reviewed could not consume great quantity of drugs ordered on defendant’s credit. Defendant also attempted to hide his affiliation with clinic from his own employer and IRS.