Tuesday, November 30, 2021
The Supreme Court recently granted certiorari in two cases addressing criminal liability for doctors who prescribe controlled substances in good faith. It is also considering a similar petition from the Fourth Circuit, which includes Maryland and Virginia. The Court last addressed this issue nearly 50 years ago. United States v. Moore, 423 U.S. 122 (1975). Since then, the federal courts have drawn very different conclusions as to the level of wrongdoing required for prosecution. These cases present an opportunity for the Supreme Court to clarify whether physicians can become criminals for a simple mistake.
As two professors of health law point out, the potential for injustice goes far beyond those who are imprisoned. Fear of prosecution may inhibit other doctors from prescribing medicine, to the detriment of patients with legitimate medical needs. The easier it is to convict a medic, the more cautious one will be with medicine that many patients find necessary.
Too low a bar also risks interfering with traditional regulation of the medical profession. One of the defendants, Dr. Saheel Kahn, was twice investigated—and cleared—by the Arizona Medical Board. Nevertheless, he was found guilty of violating federal law.
Just the Facts
Saheel Kahn, who practiced in Arizona and Wyoming, failed to realize that some of his patients were selling their medication. Xiulu Ruan owned a pain clinic and pharmacy in Alabama, where he prescribed unusually large numbers of pain-killers. George Naum worked at an addiction clinic in West Virginia, where he signed prescriptions based on his nurse’s evaluations and reports. All were charged with distributing controlled substances.
Dr. Kahn, Dr. Ruan, and Dr. Naum maintained that they had their patients’ best interests at heart. The courts said, in effect, that it didn’t matter. All of the doctors were convicted. Two of them were sentenced to decades of imprisonment.
Is Legitimate Medical Purpose A Defense?
A physician violates the law when by distributing controlled substances “outside the usual course of professional practice.” Moore, 423 U.S. at 124. Thus, physicians can be prosecuted when they prescribed drugs “not for legitimate purposes” or their “conduct exceeded the bounds of ‘professional practice.’” Id. at 135, 142.
As a matter of common sense, to avoid criminalizing medical error, conviction should require a lack of legitimate purpose and treatment beyond the bounds of medical practice. The appropriate regulation arguably supports this requirement: “A prescription . . . must be issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice.” 21 C.F.R. § 1306.04(a). A few appellate courts have unambiguously adopted this position. U.S. v. Pellman, 668 F.3d 918, 923 (7th Cir. 2012); U.S. v. Feingold, 454 F.3d 1001, 1010 (9th Cir. 2006).
Many circuits, however, have taken the opposite approach. In the Fourth Circuit, for example, the government must prove that a doctor’s actions “were not for legitimate medical purposes in the usual course of his professional medical practice” or that they were “beyond the bounds of medical practice.” U.S. v. Singh, 54 F.3d 1182, 1187 (4th Cir. 1995). Thus, “malicious motive or the desire to make a profit” is not required to convict a physician. Id. at 1188.
This reasoning reached its logical conclusion in Dr. Naum’s trial. Dr. Naum tried to prove that his treatment was for a legitimate medical purpose. The judge did not let him. The court of appeals affirmed his conviction: because the government wasn’t required to prove the lack of any legitimate medical purpose, it wasn’t relevant whether Dr. Naum had one. U.S. v. Naum, 832 F. App’x 137, 142 (4th Cir. 2020).
Similarly, in the Tenth Circuit, a physician may be convicted “if she prescribes the substance either outside the usual course of medical practice or without a legitimate medical purpose.” U.S. v. Nelson, 383 F.3d 1227, 1232 (10th Cir. 2004). The Court of Appeals denied Dr. Kahn’s request to reconsider this rule. U.S. v. Khan [sic], 989 F.3d 806, 822 (10th Cir. 2021). Dr. Kahn then sought certiorari on this issue.
What Is “Good Faith”?
Formally, good faith is a defense throughout the nation. Its effectiveness, however, varies greatly from circuit to circuit. Practically, in some parts of the country, it is no defense at all.
A few circuits have, with varying degrees of clarity, allowed a subjective test for good faith. That is, in some parts of the country, physicians may defend themselves by demonstrating that they were sincerely attempting to treat their patients.
By contrast, some circuits employ an objective standard. The Fourth Circuit is one of them. United States v. Hurwitz, 459 F.3d 463, 478-80 (4th Cir. 2006). Confusingly, some (non-binding) decisions arguably go further, suggesting that even an objectively reasonable belief is no defense. See United States v. Purpera, 844 F. App’x 614, 626-27 (4th Cir. 2021); United States v. Orta-Rosario, 469 F. App’x 140, 145-46 (4th Cir. 2012). In other words, it might not matter that a doctor believed he was following proper medical practice, only whether he should have believed it.
The Tenth Circuit leaves no doubt on this point: if a physician acted beyond professional boundaries, whatever her reasons, she cannot claim to have acted in good faith. Khan, 989 F.3d at 825-26. In the Eleventh Circuit, a defendant might not be entitled to a good faith instruction at all. U.S. v. Joseph, 709 F.3d 1082, 1097 (11th Cir. 2013). Effectively, there is no good faith defense within these circuits. It is on this issue that Dr. Ruan sought certiorari, as did Dr. Kahn.
These cases offer the Supreme Court an opportunity to correct the appellate courts’ error. The conflation of medical standards with legitimate purpose, and the absence of a good faith defense, mean that physicians can violate the law through a well-intentioned mistake. At best, this creates a crime out of what should be dealt with through professional discipline or malpractice lawsuits. At worst, it makes outlaws out of well-meaning doctors who trust their patients or employ unorthodox forms of treatment. In some cases, like Dr. Kahn’s, it can even lead to punishment where medical boards have investigated and found no wrongdoing.
Yet, a favorable decision alone will do little good for any individual defendant. An accused physician must understand precisely what the government will prove, how to convince the jury otherwise, and the necessary legal arguments. A small error, such as the failure to request the correct jury instructions, could ensure the conviction of even an innocent defendant. Therefore, as always, it remains important for wrongly-accused doctors to secure the representation of a skilled defense lawyer.
Tuesday, November 2, 2021
Here's the DOJ's Memorandum on the creation of a internal corporate crime advisory group - Corporate Crime Advisory Group and Initial Revisions to Corporate Criminal Enforcement Policies.
This Memo talks about the internal advisory group to reinforce the forthcoming department changes regarding corporate prosecutions.
I am also announcing, through this Memorandum, the creation of a Corporate Crime
Advisory Group within the Department that will consider and, where necessary, recommend
additional guidance concerning the three revisions set forth herein. This group will also consider
additional revisions and reforms that will strengthen our approach to corporate crime and equip
our attorneys with the tools necessary to prosecute it when it occurs.
It is hoped that this new Corporate Crime Advisory Group will consider working with the corporate sector in eradicating criminality. Colloboration can be a key to success in stopping white collar crime.
Friday, October 29, 2021
Deputy AG Lisa Monaco, speaking at the 36th ABA White Collar Crime Institute discussed three areas:
"I have three priorities for my time with you. First, I want to describe three new actions that the department is taking today to strengthen the way we respond to corporate crime. Second, I want to look forward and tell you about some areas we will be studying over the next months, with an eye to making additional changes to help further invigorate the department’s efforts to combat corporate crime. But before both of those, I want to set the scene by discussing trends, as well as the Attorney General’s and my enforcement priorities, when it comes to corporate crime."
Three very telling observations set the stage for the new enforcement policy and the challenges faced:
Corporate crime has an increasing national security dimension — from the new role of sanctions and export control cases to cyber vulnerabilities that open companies up to foreign attacks. Second, data analytics plays a larger and larger role in corporate criminal investigations, whether that be in healthcare fraud or insider trading or market manipulation. Third, criminals are taking advantage of emerging technological and financial industries to develop new schemes that exploit the investing public.
But she notes that these changes have been "changes of degree and not of kind."
DOJ clearly intends to focus on individuals ("Accountability starts with the individuals responsible for criminal conduct."). And they intend to put money there ("We are also going to find ways to surge resources to the department’s prosecutors. As one example, a new squad of FBI agents will be embedded in the Department’s Criminal Fraud Section.")
The three changes will be:
- "companies must provide the department with all non-privileged information about individuals involved in or responsible for the misconduct at issue" & "no longer be sufficient for companies to limit disclosures to those they assess to be “substantially involved” in the misconduct"
- "all prior misconduct needs to be evaluated when it comes to decisions about the proper resolution with a company, whether or not that misconduct is similar to the conduct at issue in a particular investigation." - companies who have veered from a DPA or NPA may have issues here
- Monitors are back in
And finally - there will be a Corporate Crime Advisory Group - so it looks like the implementation of these changes are forthcoming.
With recidivism a focus on the prosecution of corporate crime, we may be seeing a lot more scrutiny of prior DPAs and NPAs.
Tuesday, October 12, 2021
"Imagining a World Without Corporate Criminal Law" is a symposium that will generate new ideas about the value of applying criminal sanctions to collective entities. Leading scholars representing diverse viewpoints will imagine criminal law without corporate liability and trace the possible implications of such a development. Symposiasts will address whatever aspects of the question they believe to be most salient, including what would be lost or gained from successful abolition, whether civil and/or administrative sanctions can replace criminal punishment, and how to compare the experience of other countries that regulate corporations without the threat of criminal liability. Original symposium essays will be published in the Journal of Corporation Law.
The symposiasts will be hosted by Georgetown Law, with audience members participating via Zoom. To join virtually, please register at www.tinyurl.com/CorpCrimeEvent/. Co-sponsors for the event include the Georgetown Institute for the Study of Market Ethics and Wharton's Zicklin Center for Business Ethics Research.
Georgetown Law School in Washington, D.C. October 22 and 23.
Thursday, June 3, 2021
The Supreme Court issued the Van Buren case this morning, providing a strict interpretation to the words "intentionally accesses a computer without authorization or exceeds authorized access." It's a 6-3 decision with an odd mix of the players. Writing the majority opinion is Justice Barrett, joined by Justices Breyer, Sotomayor, Kagan, Gorsuch, and Kavanaugh. On the dissent writing the opinion is Justice Thomas, joined by Chief Justice Roberts and Justice Alito. In summary, the opinion holds:
"In sum, an individual 'exceeds authorized access' when he accesses a computer with authorization but then obtains information located in particular areas of the computer - such as files, folders, or databases - that are off limits to him. The parties agree that Van Buren accessed the law enforcement database system with authorization. The only question is whether Van Buren could use the system to retrieve license-plate information. Both sides agree that he could. Van Buren accordingly did not 'excee[d] authorized access' to the database, as the CFAA defines the phrase, even though he obtained information from the database for an improper purpose. We therefore reverse the contrary judgment of the Eleventh Circuit and remand the case for further proceedings consistent with this opinion."
So the question will be asked whether the Computer Fraud and Abuse Act should be rewritten to cover this conduct? Or perhaps civil remedies may be more appropriate here? Or should this be left to employment law?
With the importance of cybersecurity today, and the importance of focusing on those breaking into crucial computer systems, it seems like both the government and private industry need to be important gatekeepers in protecting information. This decision lets everyone know what is criminal under the statute and what is not, and now it needs to be determined how to better manage computer security.
Tuesday, May 4, 2021
Judge Amy Berman Jackson issued an order today that dissects two claims raised in Citizens for Responsibility & Ethics in Washinton v. U.S. Dept. of Justice related to the Mueller Report. It notes that "CREW brought this action under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, against the United States Department of Justice (“DOJ”), seeking the production of documents that Attorney General Barr reviewed in advance of his public announcement concerning the report transmitted to him by Special Counsel Mueller." Key to this analysis was looking at applicable exemptions under FOIA.
The Court found Document 6 properly withheld, but Document 15 did not have a like finding. The agency attempted to use the deliberative process provilege and the attorney-client privilege under exemption 5. The court stated:
As noted above, summary judgment may be granted on the basis of agency affidavits in FOIA cases, when “they are not called into question by contradictory evidence in the record or by evidence of agency bad faith.” Judicial Watch, Inc., 726 F.3d at 215, quoting Consumer Fed’n, 455 F.3d at 287. But here, we have both.
The court stated:
The review of the unredacted document in camera reveals that the suspicions voiced by the judge in EPIC and the plaintiff here were well-founded, and that not only was the Attorney General being disingenuous then, but DOJ has been disingenuous to this Court with respect to the existence of a decision-making process that should be shielded by the deliberative process privilege. The agency’s redactions and incomplete explanations obfuscate the true purpose of the memorandum, and the excised portions belie the notion that it fell to the Attorney General to make a prosecution decision or that any such decision was on the table at any time.
Perhaps a deeper investigation is needed here. Examining prosecutorial discretion on when obstruction of justice is proper and when it is not, is something that needs review. In my recent Article, "Obstruction of Justice: Redesigning the Shortcut," I argue that there needs to be a consistent framework for obstruction of justice and not one that can be rearranged dependent upon the Attorney General or others.
Saturday, April 3, 2021
Be Careful What You Ask For: Third Circuit Vacates Two Sentences For Defense Breaches Of Plea Agreement
In two cases consolidated for appeal, U.S. v. Yusuf and U.S. v. Campbell, the Third Circuit reversed downward variances based on defense breaches of the plea agreement. Both cases came out of the District of New Jersey and both involved plea agreements that recognized the sentencing court's ability to downwardly vary, but forbade the defense from arguing for a departure or variance below the recommended Guidelines range. The agreements also forbade the government from arguing for a departure or variance above the recommended range. Yusuf pled guilty to aggravate identity theft and conspiracy to commit bank fraud. Campbell pled guilty to felon in possession. Both cases involved mitigating circumstances that typically garner downward variances. Both cases involved sympathetic judges who all but encouraged defense breaches based on their searching inquiries during sentencing. Both cases stand for the proposition that there is a difference between defense counsel presenting the sentencing judge with all relevant facts about the defendant and the offense, including mitigating facts, and defense counsel asking for a downward variance, either directly or through questions to the client. This distinction is critical for defense counsel to keep in mind, even in response to questions for the court. In Campbell, defense counsel had the client ask the court for no jail time. In Yusuf, a much closer case in the Third Circuit's view, defense counsel suggested a sentence below the recommended Guidelines range. The Court distinguished defense counsel's sentencing hearing arguments in Yusuf from those of counsel for Yusuf's co-defendant Adekunle. (Adekunle's case was not on appeal and he had been sentenced by a different judge.) Adekunle's lawyer had reminded the sentencing court of its duty to consider proportionality, and the sentences handed down to co-defendants, but never asked for a downward variance and reminded the court twice that she was bound by the plea agreement: "I am constrained from arguing a below guideline sentence." The government also argued in Campbell that presenting character letters to the court asking for probation violated the plea agreement. The Third Circuit declined to reach this issue, which had not been preserved at sentencing, based on its finding that counsel's arguments alone constituted a breach. The Court cautioned district court judges at sentencing, "to be particularly mindful of the strictures on counsel when plea agreement provisions like the ones here are in place."
Thursday, March 18, 2021
Today, March 18, 2021, is the 68th birthday of the Supreme Court decision in Gideon v. Wainwright. Although Gideon marks the recognition of the Sixth Amendment right to counsel as a fundamental right applicable in state cases, it reinforces the Court's prior decision in Johnson v. Zerbst, holding the right to counsel in federal cases. More importantly, the progeny of cases coming from Gideon has allowed court's to use the holding to include the importance of expenses of experts (e.g. Ake v. Oklahoma) as part of that fundamental right. Many of these cases play an important role in white collar cases, especially ones that require experts such as forensic accountants.
In the context of white collar crime, many believe that these cases are handled by private counsel and the role of the public defender is minimal. That may not have been the case, and more importantly it is likely not to be the case as many of the fraud cases on the horizon will be COVID fraud related matters. Whether it be the improper acceptance of money, or the improper use of money, public defenders are likely to be handling some of these cases. So, on Gideon Day it is important to note the key role that public defenders play in white collar cases.
Tuesday, March 9, 2021
In 2020, the Fraud Section of the DOJ created the Special Matters Unit (SMU). The naming of this unit was somewhat interesting in that in the early years of white collar crime, larger law firms used the term "special matters" for their section handling white collar criminal activity. Initially, many large firms did not handle any criminal matters and preferred to refer these cases to outside law firms. Gradually, the business of handling white collar criminal matters became too profitable to send elsewhere, and the firms created sections called "special matters" to handle these cases. Today, more firms in an effort to attract this business now openly advertise their white collar and government investigations sections. So, to see in late 2020 the DOJ Fraud Division creating a new unit and calling it "special matters" was fascinating.
But there is a big difference between the defense and government side of "special matters." The government unit was created to deal with:
"issues related to privilege and legal ethics, including evidence collection and processing, pre-and post-indictment litigation, and advising and assisting Fraud Section prosecutors on related matters. The SMU: (1) conducts filter reviews to ensure that prosecutors are not exposed to potentially privileged material, (2) litigates privilege-related issues in connection with Fraud Section cases, and (3) provides training and guidance to Fraud Section prosecutors." (see here)
It appears that this unit was created in response to the 4th Circuit decision, U.S. v. Under Seal, 942 F.3d 159 (4th Cir. 2019), that found the government's use of a taint or filter team improper.
It certainly can be argued that the better process is to appoint a "special master" as was done in Michael Cohen's case. But the question is whether taint teams should continue to be allowed. With continual discovery violations being noticed, this is a time to re-evaluate whether outsiders may be a better way to proceed when issues of attorney-client privilege arise resulting especially from government searches of law offices.
Sunday, March 7, 2021
Perhaps one of the most difficult issues to explain to students is that acquitted conduct may be used by a court in sentencing someone convicted of a crime. And it should be difficult to explain this, as it goes against the grain of fundamental constitutional rights at the core of our democracy. It is therefore good to see that US Senators Dick Durbin and Chuck Grassley have "introduced the bipartisan, bicameral Prohibiting Punishment of Acquitted Conduct Act of 2021." " This legislation would end the unjust practice of judges increasing sentences based on conduct for which a defendant has been acquitted by a jury." (see here). Due process demands that this be passed. As noted in Senator Durbin's press release, Justice Scalia in a dissent to a petition for certiorari wrote, "not only did no jury convict these defendants of the offense the sentencing judge thought them guilty of, but a jury acquitted them of that offense." Justices Ginsburg and Thomas had joined in this dissent. This is a strong bipartisan issue that needs correction. (proposed bill here).
See also Cara Salvatore, Law360, Sens. Revive Push to Ban Sentencing for Acquitted Conduct
Monday, March 1, 2021
Sylvie Corbet, Phil. Inquirer, France's Sarkozy Convicted of Corruption, Sentenced to Jail ("A Paris court found French former President . . . guilty of corruption and influence peddling").
CNN (Story by Reuters), South African corruption inquiry wants Zuma jailed for two years after no-show
Business Standard (AP), Israeli court delays Benjamin Netanyahu corruption trial until April
Wednesday, February 24, 2021
One thing is pretty clear from the Garland hearing - he will easily be confirmed. Non-political, experienced, caring, and yet determined to restore the DOJ to some of its roots was apparent in his testimony. Check out, Jack Queen, Garland Aced His AG Audition. Next Comes The Hard Part. But there are still many questions that will await review when he becomes the AG - how he will handle the many challenges facing the department.
Sunday, February 21, 2021
Many are opining on what to expect at the Garland hearing this week:
Jack Queen, What To Watch For At Garland's AG Confirmation Hearings, Law360
Carrie Johnson, Merrick Garland Heads For Confirmation Hearing, 5 Years After He Was Denied A Vote, NPR
Garland's opening statement is noted on CNN here.
Some thoughts on his opening statement -
- First page after preliminary thanks and expounding on the historical role of AG is to emphasize the "rule of law" and "independence of the Department from partisan influence in law enforcement investigations."
- Civil Rights and its importance is placed in the context of history.
- He speaks about his role in the Oklahoma City prosecutions and moves into foreign and domestic enemies.
- Two terrific Robert Jackson quotes highlight the ending.
It is a short statement, and provides little about his priorities as AG. But it does set a tone that fairness and a nonpolitical administration will be what overrides everything. One can expect he will be peppered with questions about many areas of concern.
Saturday, February 20, 2021
In all criminal proceedings, on the first scheduled court date when both prosecutor and defense counsel are present, the judge shall issue an oral and written order to prosecution and defense counsel that confirms the disclosure obligation of the prosecutor under Brady v. Maryland, 373 U.S. 83 (1963) and its progeny, and the possible consequences of violating such order under applicable law.
Each judicial council in which a district court is located shall promulgate a model order for the purpose of paragraph (1) that the court may use as it determines is appropriate.
So what should that Model Order look like? The National Association of Criminal Defense Lawyers (NACDL) has such an order for court's to use. It is an order that promotes due process, fairness to the accused, while also balancing the rights of others. A copy of that Order can be found here. Importantly, it includes provisions of the consequences when there is a failure to comply.
(esp)(disclosure that I was part of the drafting team).
Thursday, February 18, 2021
William K. Rashbaum, Ben Protess, & Jonah E. Bromwich, Manhattan D.A. Recruits Top Prosecutor for Trump Inquiry, NYTimes
Wednesday, February 17, 2021
David Oscar Markus has a terrific podcast interviewing Rob Cary of Williams and Connolly on his representation of Senator Ted Stevens. See here. It is important to be reminded of the important role that Judge Emmet Sullivan played in exposing discovery violations that had occurred in this case. We are starting to see the full effect of what happened in the Steven's case with the recent passage of the Due Process Protection Act of 2020, which reminds prosecutor's of their discovery obligations under Brady.
Sunday, February 14, 2021
The U.S. Securities and Exchange Commission (SEC) failed to properly investigate Bernard Madoff’s multi-billion-dollar Ponzi scheme for over ten years. Many individuals and charities suffered devastating financial consequences from this criminal conduct, and when eventually charged and convicted, Madoff received a sentence of 150 years in prison. Improper regulatory oversight was also faulted in the investigation following the Deepwater Horizon tragedy. Employees of the company lost their lives, and individuals were charged with criminal offenses. These are just two of the many examples of agency failures to properly enforce and provide regulatory oversight, with eventual criminal prosecutions resulting from the conduct. The question is whether the harms accruing from misconduct and later criminal prosecutions could have been prevented if agency oversight had been stronger. Even if criminal punishment were still necessitated, would prompt agency action have diminished the public harm and likewise decreased the perpetrator’s criminal culpability?
Criminalization and regulation, although two distinct systems, can be evaluated from the perspective of their substantive structure—a universe of statutes or regulations—as well as their enforcement procedures, the prosecution of crimes, or enforcement of regulatory provisions. The correlation between criminalization and regulation is less noticed, however, as the advocacy tends to land in two camps: (1) those advocating for increased criminalization and regulation or (2) those claiming overcriminalization and overregulation.
This Article examines the polarized approach to overcriminalization and underregulation from both a substantive and procedural perspective, presenting the need to look holistically at government authority to achieve the maximum societal benefit. Focusing only on the costs and benefits of regulation fails to consider the ramifications to criminal conduct and prosecutions in an overcriminalized world. This Article posits a moderated approach, premised on political economy, that offers a paradigm that could lead to a reduction in our carceral environment, and a reduction in criminal conduct.
Saturday, February 13, 2021
DOJ prosecutions related to COVID Fraud are clearly picking up. The DOJ's website front page instructs viewers on reporting COVID-19 crime. And the Justice News shows a line of recent press releases focused on COVID related fraud. One sees prosecutions for alleged "schemes purporting to sell Covid-19 Vaccines" (here), pandemic unemployment benefits fraud (here), and charges being brought for alleged "misappropriating monies designed for COVID Medical Provider Relief (here).
Thursday, February 4, 2021
DOJ Press Release reports, "Florida Businesswoman Pleads Guilty to Criminal Health Care and Tax Fraud Charges and Agrees to $20.3 Million Civil False Claims Act Settlement." (see here). The government notes that along with the criminal matter being resolved (although sentencing as not occurred yet), the settlement of the civil false claims case "includes the resolution of claims brought under the qui tam or whistleblower provisions of the False Claims Act." The settlement can be found here.
Wednesday, February 3, 2021
DOJ Press Release reports, "The CEO of a Texas-based group of hospice and home health entities was sentenced today to 15 years in prison for falsely telling thousands of patients with long-term incurable diseases they had less than six months to live in order to enroll the patients in hospice programs for which they were otherwise unqualified, thereby increasing revenue to the company." Full press release here.