White Collar Crime Prof Blog

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

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

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.

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

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)

A Post-Ruan Problem: Jury Instructions Tying "Usual Course of Medical Practice for a Legitimate Medical Purpose" to Standard of Care

In a recent post, I  briefly discussed the offense instruction in U.S. v. Romano--a post-Ruan illegal distribution case out of the Southern District of Ohio. I noted that the jury charge in Romano, "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.'"  I think this type of instruction, often used in the pre-Ruan era, should be considered improper in post-Ruan times. Although Ruan left many questions unsettled for now, the Supreme Court made it clear that no objective "reasonable physician" standard can constitutionally be superimposed onto the government's obligation to prove scienter beyond a reasonable doubt. Justice Breyer did say that criteria such as  "legitimate medical medical purpose" and  "usual course course of professional practice" were objective in nature and that the more unreasonable the defendant's beliefs and misunderstandings were, "especially as measured against objective criteria," the more likely it is that the jury will find that a defendant knew his conduct was unauthorized. But the Romano instruction risks having the jury equate "standard of care," a staple of civil malpractice cases, to "legitimate medical purpose" and "usual course of professional practice." Criminal defense practitioners in illegal distribution prosecutions of physicians and other medical professionals are all too familiar with government experts who are willing to testify that this or that particular practice or procedure by the defendant physician did not comport with a state or national standard of care. It is one thing to allow testimony of this type in order for the government to show how far a particular defendant deviated from the broad consensus of medical opinion and to further show how this deviation, in combination with other facts in the case, is circumstantial evidence of scienter. It is something different I believe to import this unexplained into the offense instruction.  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. The government must also show that he or she acted without a legitimate medical purpose. I realize that the distinctions being discussed here can be extremely subtle in nature, but that is exactly why they can lead to jury confusion. For this reason, I much prefer the U.S. v. Saloumeh Rahbarvafaei Offense Instruction which referenced standards of care, but did so in the following context: "There are no specific guidelines in the law defining what is the usual course of professional practice or defining a legitimate medical purpose. Therefore, in determining whether the defendant acted outside the usual course of professional practice, you may consider the standards to which medical professionals generally hold themselves, including standards of care among medical professionals. 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."

(wisenberg)

Another Post-Ruan Acquittal: United States v. Saloumeh Rahbarvafaei

Congratulations are in order for Licensed Physician's Assistant Saloumeh Rahbarvafaei and her defense attorneys, Federal Public Defenders Erin Murphy and Michael Driscoll, Jr. Rahbarvafaei was acquitted in late August on all eight charged counts of illegal distribution of a narcotic controlled substance. The case was out of the Central District of California. Michael Fitzgerald was the judge. This is the third total victory for a defendant health care professional that I am aware of since Ruan v. United States was handed down by the U.S. Supreme Court on June 27, 2022. Here is the U.S. v. Saloumeh Rahbarvafaei Offense Instruction on the elements of illegal distribution. It is the best one I have seen so far in the post-Ruan era. Keep in mind that 9th Circuit jury instructions in this area were already among the most defense friendly in the country. More to come on jury instruction permutations, post-Ruan, in future installments.

(wisenberg)

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)

Post-Ruan Acquittals and Dismissals

Last June, in the consolidated cases of Ruan v. United States and Kahn v. United States (hereinafter Ruan) 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 as follows: "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 stunningly broad 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 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. It is too early to predict with any certainty how the case law will develop in the post-Ruan world. Never underestimate the willingness of individual U.S. Attorney offices to find ways around inconvenient Supreme Court opinions. The convictions of Dr. Ruan and Dr. Kahn were not even overturned. Instead, the appellate judgments were vacated and the cases were sent back to their respective Courts of Appeals to determine whether the faulty instructions were harmless.

But here are some recent developments. In United States v. Bothra, et al. an Eastern District of Michigan case that went to the jury the very day Ruan came out, all Defendants were acquitted on all counts, 54 in total. In U.S. v. Given, in the Northern District of Florida, the lone Defendant was acquitted on all 33 counts. It should be noted that the government's evidence in each case was weak.

In United States v. Kim, in the Western District of Oklahoma, the the court granted the government's motion to dismiss without prejudice. The government seemed to concede that, in light of Ruan, the Indictment was defective.

Finally, in United States v. Brian August, a case in which I represented the Defendant, the United States filed, and the trial court promptly granted, a Motion to Dismiss, conceding that, among other things, the case could not go forward under the Ruan standard.

While these are promising signs, the dust has not yet begun to settle on post-Ruan developments. As I will explain in subsequent posts, the Ruan opinion leaves many questions unanswered. Is a physician-Defendant entitled to a subjective good faith instruction or no good faith instruction? Does the Defendant meet his or her burden of presentation merely by showing that he/she is authorized to prescribe narcotics? Must the government 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 only one of these two factors? What should a proper jury instruction look like?

I will be posting more on these issues in the coming days, weeks, and months.

(wisenberg)

 

Appointment of a Special Master - Court Order in Trump Case

When the affidavit on the warrant was released, albeit redacted, it was clear that this was a situation where the government asked for materials for the National Archives and Records Administration (NARA) but received only some of the materials, and that a search was conducted to get the rest of the materials, although it remains to be seen whether they obtained everything initially requested. The Search Warrant referenced the Obstruction of Justice statute 18 U.S.C. 1519. (see here).  As a backdrop to this search was the fact that there exists a Presidental Records Act that controls Presidential records. (44 U.S.C. 2201 et. seq.) So irrespective of the former President's claim that he declassified these documents (a mindboggling admission), they were still subject to be returned to the National Archives. (see here).

Now we see a  court discussion as to whether these documents that he allegedly declassified are subject to executive privilege. Despite President Trump no longer being the executive, the court leaves that issue open for further legal argument (see here). 

It is one thing to find that alleged attorney-client privilege material may be interspersed with folders marked classified information and/or personal clothing, and appoint a special master to keep the attorney-client material from anyone's view. Appointing a special master for potential attorney-client privileged material, whether it be the lawyer or the client is a better way to review attorney-client privileged material than a government filter or taint team. (see here)

It is hard to imagine that someone would have classified material, and would nevertheless allow that material to be left in an unsecured location amongst other material.  We are not dealing with a teenager needing to clean their room - but rather the former top head of this country possessing what might be highly sensitive information. And it is good to see the judge allowing the classification review and/or intelligence assessment by the Office of the Director of National Intelligence to continue, not impeded by her restraint of the government using other materials. 

But the executive privilege claim discussed by the court is confusing me. On one hand the court is saying there might be  privileged material and on the other hand former President Trump has stated that he declassified the material. Clearly, these are two different concepts, but is it privileged material or has it been declassified and should it be open to the public.  If it is privileged material that was not turned over when the first request was made, then the Trump team should have been in court arguing to retain information as privileged material well before the search.  If it was all declassified than why was it not turned over to the Archives upon the government's request. Will the former president really argue that all this alleged declassified material is now material subject to an executive privilege? And irrespective of whether it was declassified or it is executive privileged material, why was it not turned over under NARA.

(esp)

 

Fourth Circuit Affirms Andrew Powers Conviction: General Allegation of Venue Sufficient

The Fourth Circuit has affirmed the wire fraud conviction of Communique founder Andrew Powers. The opinion is here. Powers argued that the Indictment failed to properly allege venue, because it did not specify where each alleged fraudulent wire and mailing were sent from or received. The Fourth Circuit held, unsurprisingly, that the general allegation of venue lying in the EDVA was all that was required to defeat a motion to dismiss for failure to allege venue. No more detail was required in the charging instrument.

(wisenberg)

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

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)

The Timothy Shea Mistrial: It's Tough To Dismiss An Obstinate Juror

SDNY Judge Analisa Torres granted a mistrial last week in the federal fraud trial against "We Build A Wall" Defendant Timothy Shea. On June 2, 11 of the jurors sent a note to the judge, asking that a 12th juror be dismissed because he allegedly refused to deliberate, based on what appeared to be his Trumpian political comments and bias.  The hold-out denied the charges, and accused his fellow jurors of liberal political bias. Judge Torres questioned the juror on the record, but in private away from the public and the other jurors. According to the New York Times account, "she asked whether the juror had 'biases or personal views' that would prevent him from being 'fair and impartial,' whether he could determine facts subject to her explanation of the law and whether he could consult with other jurors. The juror replied no to the first question and yes to the second two." Judge Torres declined to kick the hold-out off the jury, gave a modified Allen charge, and told the jury to continue deliberations. By Tuesday they were at a total impasse and a mistrial was declared. Shea's counsel, John Meringolo had already filed a motion for mistrial, based on Judge Torres' modification of the Allen charge and the 11 jurors' alleged breach of jury secrecy when the jury note revealed their numerical division. It doesn't look like Judge Torres ever ruled on that motion. She didn't need to, once the jury reached a total impasse. 

Recall that the case concerned the alleged fraudulent diversion of funds solicited under the premise of finishing then-President Trump's wall between the U.S. and Mexico. Shea allegedly conspired with others, including former Trump advisor Steve Bannon who was pardoned by Trump. Venue could have been had in a number of jurisdictions, but the prosecutors chose SDNY. Gee. I wonder why. So did the 12th juror. Was the 12th juror truly refusing to deliberate or was he simply unconvinced of Shea's guilt beyond a reasonable doubt. According to the Times, the other jurors spoke of the hold-out's refusal, "to deliberate based on evidence." Hmmm. Does that mean the evidence as they saw it, but not the hold-out? You can see the danger in dismissing hold-outs in this context, particularly in a politically charged case. Any 11 could complain about the hold-out's recalcitrance and "refusal to deliberate." Was there truly a "refusal to deliberate" or 11 bullies ganging up on a principled hold-out? We'll never know of course. The Second Circuit law is very clear on this issue. Once the hold-out answered Judge Torres's questions in the manner he did, he could not be removed. Under United States v. Thomas, 116 F.3d 606, 608 (2nd. Cir. 1997), a juror can be dismissed "for a refusal to apply the law as instructed only where the record is clear beyond doubt that the juror is not, in fact, simply unpersuaded by the prosecution's case." That standard was simply not met in Shea's case. This was the right result under the case law. Meringolo's objection to the modified Allen charge was based on Judge Torres's additional admonition that the jurors not be swayed "by sympathy, emotion, or political views or opinions." (emphasis added).

Here is the New York Times story. Here is Meringolo's U.S. v. Timothy Shea Letter Motion for Mistrial.  

(wisenberg)

Oral Argument in Ruan and Kahn

Here is a transcript of the March 1, 2022, U.S. Supreme Court Argument in Ruan and Kahn. Ruan v. United States and Kahn v. United States are consolidated cases involving the kind of good faith instruction, if any, required when physicians are indicted and tried for illegally dispensing controlled substances. We have previously posted about these cases here, here, and here. More to come soon on these cases and the issues surrounding them.

(wisenberg)

Latest Filings in Ruan and Kahn Pain Management Physician Cases

We have posted previously, here and here, about the anticipated U.S. Supreme Court decision in the consolidated cases of Ruan v. United States and Kahn v. United States. The Supreme Court granted certiorari and consolidated the two cases last November. Oral argument is set for March 1, 2022. The cases involve the appropriate jury instruction to be given, and the required proof of scienter, when the government prosecutes pain management physicians for illegal distribution of Schedule II controlled substances under 21 U.S.C. § 841(a)(1). More precisely, as pointed out in the Joint Motion of Petitioners Ruan and Kahn for Divided Argument, the case "presents the question whether, and to what extent, a physician may assert a good faith defense to charges under the Controlled Substances Act (CSA)." There is a longstanding circuit split regarding the type of good faith instruction a defendant is entitled to in this type of case. Is the defendant entitled to the traditional subjective good faith instruction or can the government impose an objective component to good faith, such that the charged physician must act in accordance with what "a reasonable physician should believe" to be proper medical practice? The Petitioners wisely sought to divide their arguments, because the respective good faith instructions given in their trials differed and because they have different views on whether the two prongs of 21 C.F.R. § 1306.04(a) should be read and proven in the conjunctive or disjunctive--that is, whether the government must prove both that a physician lacked a legitimate medical purpose and was acting outside the usual course of professional practice, or whether the government must prove just one of those prongs. 

The larger issue lurking behind theses cases, which may or not be fully addressed by the Supreme Court's anticipated decision, is that pain management physicians are routinely convicted, at least in objective good faith circuits, under what amounts to a malpractice standard. Government experts testify that defendant physicians failed to meet the standard of care and missed/ignored various red flags. The "usual course of professional practice" is confused with the "standard of care" and an "objective"  good faith instruction often operates as the coup de grace against the charged physician.

Here is the Ruan v. U.S. and Kahn v. United States--Brief For the United States, filed on January 19. 

Here is the Xiulu Ruan Reply Brief, filed last week.

Here is the Shakeel Kahn Reply Brief, also filed last week.

(wisenberg)

Michael Sussman's Motion to Dismiss

Here is the Sussman Motion to Dismiss for Failure to State an Offense, filed in Special Counsel John Durham's 18 U.S.C. Section 1001 false statement prosecution against former Perkins Coie attorney Michael Sussman. Sussman's argument is that even if the facts laid out in Durham's Indictment are true, they fail, as a matter of law, to allege/establish the essential Section 1001 element of materiality or to establish a sufficient nexus between Sussman's alleged falsehood and the agency (FBI) decision purportedly capable of being affected. Keep in mind that Sussman's alleged false statement to FBI General Counsel James Baker was that he was not acting on behalf of any client in reporting the Alfa Bank tip to Baker, when, in truth and in fact, Sussman was there representing and acting on behalf of Tech-Executive 1 and the Clinton Campaign. The materiality portion of the Sussman Indictment has always struck me as weak, but very little is required of the government in order for it to prove materiality in a Section 1001 prosecution. Sussman's real problem in winning on this motion is decades of case law holding that an indictment setting out the statutory elements of the offense, along with minimal factual allegations, is sufficient to allege an offense as a matter of law.  In other words, the defendant is not allowed to go beyond the indictment's allegations in litigating whether it alleges an offense. There appears to be no recognition of this case law in the Sussman brief. Durham was not required to put much meat on the skeletal elements of the offense. But he chose to do so, presenting a 27-page speaking indictment to the grand jury. There is some scattered authority for the proposition that an indictment setting out in detail what appear to be the full  and undisputed facts behind the offense, in addition to the statutory elements, can be defeated by accepting those facts as true and arguing that the do not constitute the purported offense being charged. See for example, U.S. v. Ali, 557 F.3d 715, 719-20 (6th Cir. 2009). That's what Sussman is up to here. Durham's response will surely be that he has set out the required statutory elements plus additional contextual detail and that the Government must be allowed to show its full factual case to the jury in order to prove why, under said factual particulars, Sussman's alleged lie was material. 

(wisenberg)

Fifth Circuit Reverses Tax Counts

Last week in United States v. Pursley, the Fifth Circuit reversed and remanded all counts of conviction against appellant Jack Pursley. Appellant had been charged with a Klein conspiracy and three tax evasion counts.  The convictions were reversed because: 1) the trial court refused to give a requested instruction requiring the jury to find that the charged offenses were committed within the 6 year statute of limitations period; and 2) the trial court neglected to make a ruling as to how long the statute of limitations had been suspended pursuant to 18 U.S.C. Section 3292 (suspension of limitations to obtain foreign evidence). Under Section 3292 (b), "a period of suspension under this section shall begin on the date on which the official request is made and end on the date on which the foreign court or authority takes final action on the request." According to the Fifth Circuit, the trial court must make the factual determination as to the date on which the foreign court or authority took final action on the request for evidence, assuming that there is a dispute as to this issue, but failed to do so here. It is often not at all clear when such final actions by foreign authorities take place. Sometimes the foreign authority will state that it has taken final action, but continue to send documents after this date. Sometimes the foreign authority will not indicate whether  it is taking its final action. The case has a good discussion of statute of limitations issues in tax evasion cases.

(wisenberg)

 

Briefs Filed in Ruan and Kahn.

Last November, guest bloggers Eugene Gorokhov and Jonathan Knowles posted here about the Supreme Court's granting of certiorari in Ruan v. United States and Kahn v. United States, two federal Circuit Court of Appeals decisions that effectively eviscerate the scienter requirement in criminal cases charging physicians with illegal distribution of Schedule II drugs. There is a longstanding split between those federal circuits that have criminalized malpractice and those requiring the government to actually prove beyond a reasonable doubt that physician defendants had a subjective intent to prescribe drugs for no legitimate medical purpose and outside the scope of their professional practices. Other circuits fall in-between, allowing hybrid jury instructions with objective and subjective intent elements. Amicus Briefs and the Petitioners' Briefs were filed in late December. I am posting some of them here. The smart money is on the Court substantially clarifying and strengthening the government's obligation to prove knowing or intentional efforts by physicians to prescribe outside the scope of professional practice and without a legitimate medical purpose. 

Brief of Petitioner Shakeel Kahn

Ruan Brief for the Petitioner

Ruan - Amicus Brief of Due Process Institute

National Pain Adv Ctr Amicus Brief

Amicus Brief of NACDL

(wisenberg)

Three New Opinions on the Meaning of Corrupt Obstruction

Three federal district court opinions on the meaning of "corruptly" obstructing, influencing, or impeding an official proceeding, under 18 U.S.C. Section 1512 (c)(2), have been issued in the past month. Each case is from a different federal district judge in the District of Columbia. Although each case pertains to the actions of alleged participants in the January 6, 2021 Capitol Riot, the cases also have significant implications for future white collar prosecutions--implications that should benefit white collar defendants. Here are the opinions in  U.S. v. Nordean, U.S. v. Caldwell, and U.S. v. Sandlin. More to come on this issue in the next week.

(wisenberg)

 

 

Man Bites Dog. Hell Freezes Over. Third Circuit Reverses Section 1001 Conviction Based on Government's Failure to Prove Materiality.

Need I say more? It is a truism that materiality is an exceedingly easy element to prove in a prosecution brought under 18 U.S.C. Section 1001. It is even easier to sustain on appeal. But in U.S. v. Joseph Johnson, the Third Circuit held that the government failed to prove materiality under 18 U.S.C. Section 1001 (a) (2), which prohibits “knowingly and willfully... mak[ing] any materially false, fictitious, or fraudulent statement or representation” in a matter within the jurisdiction of the federal government. Joseph R. Johnson was a Bill Cosby supporter who filed a fraudulent pleading in a federal civil action brought by one of Cosby's alleged victims. Specifically, Johnson filed a praecipe that used the signature of the alleged victim's actual attorney, but which was filed without the attorney's knowledge and which contained unsupported allegations that Cosby's alleged victim had failed to report income. Almost immediately after the false pleading was discovered it was stricken from the record by the civil trial judge. Johnson was then indicted under Section 1001 for making a false material representation to the civil trial judge. Materiality requires evidence that the false statements were of the kind "capable of influencing the decisionmaker" and that "could have bearing on an actual decision entrusted to the decisionmaker." In Johnson, the only decisionmaker identified by the prosecution was the civil trial judge, who testified in general that he extracted information whenever he looked at the docket and then took action based on that information. But, according to the Third Circuit, "given the subject matter of the underlying litigation and posture of the case, there is no evidence that this false statement, even if considered by the Judge, could have been relevant, much less material, to any decision." In other words, the stricken meshugannah pleading would not have been relevant or admissible in the alleged victim's case. The only thing it was relevant to was the judge's decision to strike it from the docket, which was not enough. The Third Circuit, without explicitly saying so, seemed to believe that no proof the government might have offered would have sufficed to show materiality in this instance. Assistant Federal Defender Abigail Horn successfully argued the appeal for Johnson and congratulations are in order. I doubt there have been very many successful federal criminal defense appeals on the materiality issue.

(wisenberg)

It Is All In the Emails - Mueller Report Review

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. 

(esp)