As federal trial courts and litigators struggle with how to construct jury charges in light of the U.S. Supreme Court's decision late last term in Ruan v. U.S. and Kahn v. U.S. (hereinafter Ruan), it is paramount that white collar criminal defense practitioners resist all efforts by courts and prosecutors to tie, within the jury instructions, the concept of "course [or scope] of professional practice" to the "standard of care" in the medical community.  But old habits die hard, even when the Supreme Court sends a clear signal that most lower courts have been getting things wrong for several years. So in some recent post-Ruan offense instructions, district courts have kept in references to the standard of care, but tried to limit the effect of such references. In my last post, I criticized the appalling offense instruction in United States v. Romano and praised the court's instruction in United States v. Rahbarvafaei. In the latter case, the trial court told the jury it could "consider the standards to which medical professionals generally hold themselves, including standards of care among medical professionals." But the court then added this proviso: "However, any finding of criminal liability must ultimately depend on the mental sate of the defendant herself, not what a hypothetical 'reasonable' medical practitioner would do or intend. Because of the need for the government to prove the defendant's criminal intent, this case is different from a medical malpractice case." The better practice is to eliminate all references to the standard of care in offense instructions. Courts also need to make it pellucidly clear to juries that a doctor only acts outside the scope of his or her practice when he or she in effect ceases to act as a doctor. U.S. District Court Judge Casey Rodgers, in the Northern District of Florida, recently did just this in her jury charge in United States v. Given, although Judge Rodgers also left in language that was explicitly criticized in Ruan. Judge Rodgers told the jury that, "in order for a physician to violate the Controlled Substances Act, he must knowingly issue a prescription for a controlled substance outside the course of medical practice or for other than a legitimate medical purpose, which means he abandoned his role as an authorized physician." (emphasis added). That's pretty strong stuff for the defense and is in accord with the view Judge Rodgers expressed, during the Rule 29 argument, that a doctor is only operating outside the scope of his practice when he acts as a drug pusher. Here are the U.S. v. Michael Given Offense Instructions and the GIVEN.RULE29ARGUMENTTRANSCRIPT.

(wisenberg)