Post-Ruan Jury Instructions: A Mixed Bag

Three recent post-Ruan cases, two resulting in acquittals and one in a guilty verdict, yielded three different offense instructions for illegal distribution of a controlled substance by a physician.

In United States v. Bothra, et al., which went to the jury on the morning that the consolidated cases of Ruan v. United States and Kahn v. United States (hereinafter Ruan) were handed down by the U.S. Supreme Court, the trial judge used a simple one page instruction, closely hewing to the bare bones holding of the Supreme Court. There was no good faith defense instruction (over defense objection) and no deliberate ignorance instruction. Here is the United States v. Bothra et al. Jury Instruction on Illegal Distribution. All Defendants were acquitted on all charges.

In United States v. Given, the trial court gave a lengthier and more traditional instruction, requested by the defense and agreed to by the government. The lone Defendant was acquitted on all counts. Although the Given jury instructions were obviously influenced by Ruan, the trial court surprisingly included some of the very language invalidated criticized and questioned by the U.S. Supreme Court in Ruan. Here is the U.S. v. Michael Given Offense Instructions. The trial court declined the government's request to give a deliberate ignorance instruction.

In United States v. Romano, the trial court tied the concept of "usual course of professional practice for a legitimate medical purpose"  to a "standard of medical practice generally recognized and accepted in the State of Ohio." The court gave a deliberate ignorance instruction in tandem with a broad instruction on inferring intent. The Defendant was convicted on several counts. Here is the U.S. v. Romano Jury Instruction--Definition of the Crime. Here are the U.S. v. Romano Jury Instructions--Inferring Required Mental State and Deliberate Ignorance.

Clearly there will be quite a few kinks to work out in post-Ruan  jury instructions until a coherent pattern emerges.

(wisenberg)