Tag: pill-mills

Another Post-Ruan Acquittal: Dr. Lesly Pompy Found Not Guilty On All Counts in E.D. Michigan

January 5th, 2023

Congratulations to Dr. Lesly Pompy, acquitted on all counts (illegal distribution and health care fraud) on January 4, 2023, in the Eastern District of Michigan. Kudos as well to his outstanding team of defense lawyers, Ronald Chapman II (Chapman Law Group), Joe Richotte (Butzel Long), and George Donnini (Butzel Long). Here is a recap from Ron's Federal Defense Blog. Attached below is Defendant's Proposed Jury Instruction. The proposed illegal distribution charge should serve as a model for other defense attorneys practicing in this area.

U.S. v. Lesly Pompy M.D. Defendant's Proposed Jury Instructions.

I don't yet have a copy of the district court's final jury instruction, but will post it as soon as it becomes available on PACER.

This is one of several post-Ruan acquittals that have come down in the last six months. In each of these cases the government's evidence was weak and the strengthened scienter requirement established in Ruan v. United States no doubt played a major role in facilitating the not guilty verdicts.

(wisenberg)
A Pre-Ruan Dispute That Appears To Have Fizzled

January 3rd, 2023

Back in October, I noted that several legal questions remained open in the wake of the Supreme Court's historic consolidated decision in Ruan v. United States and Kahn v. United States. I wrote that one such question was whether the government must prove that a physician-Defendant had no legitimate medical purpose for his/her prescription and that he/she was operating outside the usual course of his/her medical practice or whether it only need prove one of these two factors. It appears that I was wrong on that score. I'm aware of only one district court jury instruction in the post-Ruan world that allows the government to meet its burden by proving "no legitimate medical purpose" or "operating outside the course/scope of a medical practice." The issue was of paramount importance pre-Ruan, because several circuits had long held that the "outside the course/scope" prong was based on an objective standard of what a reasonable practitioner was required to do, irrespective of intent. If the government only had to prove one of two prongs, "no legitimate medical purpose" or "outside the course/scope," and one of those two prongs did not require proof of intent, it placed defendants at an enormous disadvantage and allowed the government to secure convictions without proving scienter. Those days are gone now, since the Court made it crystal clear that the Constitution requires the government to prove knowledge or intent on the part of the doctor that he or she was prescribing/dispensing drugs in an unauthorized manner. The formulation being most often used, taken from a passage in Ruan/Kahn which parroted the appropriate federal regulation, is that a health care professional acts in an authorized manner when he or she acts in the "usual course of professional practice for a legitimate medical purpose." Juries are not being told, except in one case, that proof of either/or will suffice. And that case resulted in an acquittal. Of course there is ample time for one of the circuits to screw things up.

(wisenberg)
U.S. v. Jessica Joyce Spayd: Another Faulty Post-Ruan Jury Instruction.

January 2nd, 2023

What is particularly galling about the offense instructions given to the jury in United States v. Spayd, a case tried in the United States District Court for the District of Alaska in October 2022, is not merely that the judge equated the terms "legitimate medical purpose" and "usual course of medical practice" with "a standard of medical practice generally recognized and accepted in the country." It is that he did so in violation of clear 9th Circuit precedent. The Ninth Circuit has long held that a physician defendant cannot be convicted of unlawful distribution merely by showing that he or she intentionally violated a standard of care or intentionally committed malpractice. The case was United States v. Feingold, 494 F.3d 1001 (9th Cir. 2006), in which the court stated that, "our holding is consistent with the law in several of our sister circuits, which have emphasized that the standard for criminal liability under §841(a) requires more than proof of a doctor's intentional failure to adhere to the standard of care." I will have more to say on this issue in future posts. Attached below are the full jury instructions and the separate offense instructions in Spayd.

Jessica Spayd Jury Instructions Jessica Spayd Offense Instructions

(wisenberg)
Ruan and Kahn on Remand: Supplemental Briefs and Reply Briefs

January 1st, 2023

Last June, in the consolidated cases of Ruan v. United States and Kahn v. United States, the U.S. Supreme Court considered the mens rea required to convict a physician charged with illegal distribution of narcotics under the Controlled Substances Act. The Court held that: "After a defendant produces evidence that he or she was authorized to dispense controlled substances, the Government must prove beyond a reasonable doubt that the defendant knew that he or she was acting in an unauthorized manner, or intended to do so." A health care professional acts in an authorized manner under statute's controlling regulation when he or she acts in the "usual course of professional practice for a legitimate medical purpose." The vote was 9-0 on the need to reverse the judgments of the 11th Circuit (in Ruan) and the 10th Circuit (in Kahn), because both courts "evaluated the jury instructions under an incorrect understanding of [Title 18 U.S. Code] §841's scienter requirements," but the vote was 6-3 on the majority's specific holding. Justice Alito, joined by Justice Thomas and, far the most part, Justice Barrett, concurred in the result only. They did not join the majority's holding that, once the defendant meets the burden of producing any evidence that he or she was authorized to write prescriptions, the burden of proving beyond a reasonable doubt that the defendant intended to act, or knew he or she was acting, "in an unauthorized manner" falls on the government. But all nine Justices agreed that at least a portion of the jury instructions in each trial were defective because they injected objective reasonableness requirements into their good faith definitions. The Court sent the cases back to their respective circuits to determine, under the correct scienter requirements, whether: 1) the offense instructions as a whole were correct as a matter of law, and 2) whether any error in the instructions was harmless.

The supplemental briefs and replies have now been filed in each case, and are attached below. In Ruan, the harmless error analysis is complicated by the defendant's conviction on counts other than illegal distribution. In Kahn, a key focus of the government and defense briefs is the difference, if any, between knowingly or intentionally acting in an unauthorized manner (that is, outside the usual course of professional practice without a legitimate medical purpose) and knowingly or intentionally acting outside or beneath the relevant standard of care. The government maintains that there is no difference between the two concepts, which is an extremely doubtful position in light of the language and reasoning of both the majority and concurring opinions. This issue is really the elephant in the room in the post-Ruan/Kahn world. The Supreme Court originally granted certiorari to resolve a circuit split, but a split still exists, because some circuit courts have long approved instructions equating standard of care with authorized practice, while others have held that an intentional violation of the standard of care is not the same as acting with no legitimate medical purpose outside the scope of a medical practice. Attached below are the briefs on remand in Ruan and Kahn.

Shakeel Kahn's Supplemental Brief on Remand U.S. v. Shakeel Kahn-Government's Supplemental Brief on Remand U.S. v. Shakeel Kahn-Appellant's Supplemental Reply Brief Ruan Supplemental Brief on Remand Ruan and Couch Supplemental Brief of Appellee United States Ruan CA11 Supplemental Reply Brief on Remand (10.13 final)

(wisenberg)
U.S. v. Cristobal: Another Imperfect Post-Ruan Jury Instruction

October 29th, 2022

We are continuing to witness inconsistent jury charges in the wake of the Supreme Court's groundbreaking decision late last term in Ruan v. United States. In Ruan, the Court made it clear that a health care professional cannot be convicted of illegal distribution of narcotics unless the government proves beyond a reasonable doubt that he intended to prescribe, or knew he was prescribing, narcotic drugs without "a legitimate medical purpose…in the usual course of his professional practice." But the Court did not define "legitimate medical purpose" or "usual course of professional practice."

In United States v. Cristobal, which went to the jury on September 7, 2022, Judge Katherine Polk Failla, United States District Court Judge for the Southern District of New York, informed the jury that, "[t]he terms 'legitimate medical purpose' and 'usual course of of professional practice' means acting in accordance with a standard of medical practice generally recognized and accepted in the State of New York." This is inconsistent with several recent post-Ruan jury instructions in other federal districts, which explicitly inform the jury that there is no accepted definition of "legitimate medical purpose" and "usual course of professional practice." For example, in United States v. Rahbarvafaei, tried in the Central District of California, the jury was instructed that, "[t]here are no specific guidelines in the law defining what is the usual course of professional practice or defining a legitimate medical purpose." Rahbarvafaei was acquitted on all counts. Cristobal, a licensed nurse practitioner, was convicted on three of eight counts.

The Cristobal offense instruction tells the jury in effect that an intentional violation of the standard of care in the prescribing of drugs is a criminal offense. In the Ninth Circuit, however, it has long been the law that an intentional violation of the standard of care is not alone enough to convict a physician defendant in a narcotics distribution case.

Stay tuned. Undoubtedly, more inconsistences and confusion await us and the Supreme Court will need to step in again soon to provide needed clarifiaction.

(wisenberg)
More on Post-Ruan Jury Charges: Outside the Usual Course of Professional Practice Does NOT Equal Standard of Care. It DOES Equal Drug Pusher

October 22nd, 2022

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)
Massive Victory for Physicians and the White Collar Bar in the Government’s War Against Doctors

June 27th, 2022

We have posted several times over the past year about the consolidated cases of Ruan v. United States and Kahn v. United States, pending at the U.S. Supreme Court this term. The cases involved the level of scienter required to convict doctors of illegal distribution of Schedule II Narcotics under the Controlled Substances Act. The opinion in Ruan v. U.S. and Kahn v. U.S. is now out and it is even better than most of us thought it would be. "After a defendant produces evidence that he or she was authorized to dispense controlled substances, the Government must prove beyond a reasonable doubt that the defendant knew that he or she was acting in an unauthorized manner, or intended to do so." The ruling was 9-0 on the final outcome, but 6-3 on the majority's reasoning. Justice Alito, joined by Justice Thomas and, far the most part, Justice Barrett, concurred in the result only. They did not join the majority's holding that, once the defendant meets the burden of production, the burden of proof beyond a reasonable doubt shifts back to the government. All nine Justices agreed that the jury instructions in the two trials were defective because they injected objective reasonableness requirements into their good faith instructions. Many issues remain to be resolved in these Pain Doctor cases, but the victory here is truly sweeping. Doctors have been convicted nationwide over the past several years under what amounts, in many circuits, to a civil malpractice/negligence standard. Those days now appear to be gone.

(wisenberg)