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)

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)

 

Cryptocurrency and Insider Trading

The DOJ issued a press release  -Tippee Pleads Guilty In First Ever Cryptocurrency Insider Trading Case

This is a particularly interesting case because it lets everyone know that insider trading prosecutions can be brought when the alleged scheme involves insider trading in cryptocurrency assets. 

(esp)

 

Obstruction of Justice - A Topic in the Release of the Search Warrant Affidavit

Not surprising, the release of the Affidavit in Support of an Application Under Rule 41 for a Warrant to Search and Seize items from Mar-a-Lago is heavily redacted.  This is necessary, as it is clear that individuals and information need protection. Equally important is that we are dealing with classified material and whatever that information may be, it needs protection.  It is frightening to think that some of this nation's security secrets may have been compromised.

But what is also noteworthy here, is that there is concern about a possible obstruction of justice.   

1. We asked you for it. It looks like the National Archives and Records Administration (NARA) has been trying to get this material for some time - " NARA had ongoing communications with the representatives of former President Trump throughout 2021." (p. 8) 
2. You gave us some of it. It looks like the Former President gave up some information. (15 boxes were received on Jan. 18, 2022) (p. 1)
3. You didn't give us all of it. It looks like the Former President failed to provide all the information. And here we are 6 months later and the rest of the materials have not been provided.  

And so the question is whether there has been an obstruction of justice. As stated in the Affidavit - "Further, there is probable cause to believe that additional documents that contain classified NDI or that are Presidential records subject to record retention requirements currently remain at the PREMISES.  There is also probable cause to believe that evidence of obstruction will be found at the PREMISES." (p. 2)

Former President Trump is in a catch-22 position. He is saying he declassified the info, mind boggling as that admission may be, and thus admitting that information was still there. But if there are documents still there than you have a violation of the Presidential Records Act.  And on the other hand, if there is information there and the government was not given that information under a lawful request, you have a possible obstruction of justice. (18 U.S.C. 1519). 

This is not a case of fish being thrown overboard when a fisherman was instructed to bring it back to shore (Reversed in Yates v. United States).  This is a case of sensitive government documents.  

This is also not a case of dealing with a politician who did not want to disclose personal tax returns.  This is a case of determining whether presidential documents that require preservation under law were not properly preserved and whether there was an obstruction in failing to give these documents when requested by the government.  What remains unanswered is what Attorney General Merrick Garland does with all of this. 

(esp)  

Health Care Fraud Charged in Coordinated Government Enforcement Action

A DOJ press release today noted that they brought "criminal charges against 36 defendants in 13 federal districts across the United States for more than $1.2 billion in alleged fraudulent telemedicine, cardiovascular and cancer genetic testing, and durable medical equipment (DME) schemes." (see here).  The Press Release notes that:

The coordinated federal investigations announced today primarily targeted alleged schemes involving the payment of illegal kickbacks and bribes by laboratory owners and operators in exchange for the referral of patients by medical professionals working with fraudulent telemedicine and digital medical technology companies. Telemedicine schemes account for more than $1 billion of the total alleged intended losses associated with today’s enforcement action. These charges include some of the first prosecutions in the nation related to fraudulent cardiovascular genetic testing, a burgeoning scheme. As alleged in court documents, medical professionals made referrals for expensive and medically unnecessary cardiovascular and cancer genetic tests, as well as durable medical equipment.

The breadth in location of these cases is noted in the many US Attorneys offices that will be handling these cases. ("District of New Jersey, Eastern District of Louisiana, Eastern District of Texas, Middle District of Florida, Middle District of Tennessee, Northern District of Georgia, Northern District of Mississippi, and Western District of North Carolina").

(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)

Supreme Court Accepts Two Fraud Related Cases

The Supreme Court accepted two cases that provide questions related to how to interpret current fraud statutes, specifically mail and wire fraud.  

In Percoco v. United States, the question presented is "[d]oes a private citizen who holds no elected office or government employment, but has informal political or other influence over governmental decisionmaking, owe a fiduciary duty to the general public such that he can be convicted of honest-services fraud?" (see here).

In the second case, Ciminelli v. United States, the question presented is " "[w]hether the Second Circuit's "right to control" theory of fraud-which treats the deprivation of complete and accurate information bearing on a person's economic decision as a species of property fraud­ states a valid basis for liability under the federal wire fraud statute, 18 U.S.C. § 1343.  (see here)

These cases offer an opportunity to the Court to provide better clarity to "honest services" fraud and also to how the "right to control" theory may apply. The decisions could affect a wide range of cases, such as those that are part of the Varsity Blues prosecutions.  Leaving fraud as a "stop-gap device" until particularized legislation, is not the way to proceed with criminal prosecutions that could result in years of incarceration. It is time to provide clarity as to what is criminal and what is not when it comes to fraud related offenses. We don't need a statute for every imaginable type of fraud (e.g., we don't need a Beanie Baby fraud statute here).  But we do need clarity in the areas of honest services fraud and the right to control. Mail fraud was an 1872 statute and even with its 1909 amendment, more is clearly needed.   

See my prior article on Criminal Fraud here. 

(esp)(h/t Peter Goldberger)

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)

Not Guilty After Trial - Former Boeing Pilot

Many accused of crimes do not take the risk of going to trial - they take a plea agreement. Our legal system has become more and more a system of pleas, with fewer trials, especially in the white collar area. But occasionally someone takes that risk, and is found not guilty.  That happened this week in the case of a former Boeing pilot accused of four counts of wire fraud.  Hats off to attorneys David Gerger and  Jeff Kearney. See WSJ, here, NYTimes here

(esp)

DOJ Moves Toward Transparency - Will it Include Discovery?

AG Garland announced a new policy this week in a press release titled, Attorney General Merrick B. Garland Issues New FOIA Guidelines to Favor Disclosure and Transparency .  The actual policy that favors transparency in FOIA requests is located here.  The new guidance says that there is a presumption of openness. 

Years back the National Association of Criminal Defense Lawyers (NACDL) filed a FOIA request for DOJ's Blue Book on the discovery protocols used by the government. The DOJ argued the book was work-product and only a small portion was released following a lawsuit.  See Louis Virelli & Ellen S. Podgor, Secret Policies, 2019 Illinois Law Rev. 463 (2019).  Perhaps now is a good time for the government to think about transparency in discovery practices so that fewer discovery violations occur in criminal cases.

(esp)

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)

Naming Conventions And Naming Convictions

What’s in a name? Several of the individuals indicted in connection with the January 6, 2021, assault on the U.S. Capitol have been charged under Title 18, United States Code, Section 1512(c)(2). Subsection (c) of 18 U.S.C. §1512 seeks to punish: “Whoever corruptly--(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or (2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so.” 18 U.S.C. §1515 supplies definitions for some of the terms used in §1512 and defines “official proceeding” to include, among other things, “a proceeding before the Congress.” Many of the motions to dismiss filed by January 6 defendants, and judicial opinions denying these motions, center around whether  §1512(c)(2) was meant to be confined to proceedings that are quasi-judicial or evidentiary in nature, even if the proceedings take place in Congress. I previously posted three of these judicial opinions. That is not my focus here. 

18 U.S.C §1512, a lengthy statute with several subsections, has a title as well. The official title is: “Tampering with a witness, victim, or an informant.” That is the only title the statute has. None of the subsections of §1512 contains an additional or separate subtitle. Note, however, that none of the persons charged under 18 U.S.C. §1512(c)(2) has been literally charged in his or her Indictment, or in any press coverage that I have seen, with, “tampering with a witness, victim, or an informant,’ which, again, is the only title of §1512. To take one example, in U.S. v. Nordean et al., the defendants are charged in the First Superseding Indictment with “Obstruction of an Official Proceeding and Aiding and Abetting.” This makes sense. The facts alleged against the defendants appear to align with the literal language of §1512(c)(2) and do not involve witness tampering.

Fast forward to the recent indictment of Oath Keeper Elmer Steward Rhodes III and others for “Seditious conspiracy,” pursuant to 18 U.S.C. § 2384. The defendants are also charged with violating several other statutes, including 18 U.S.C. §1512(c)(2). While 18 U.S.C. § 2384, unlike §1512(c)(2), does not have separately numbered subsections, it clearly sets out several different ways in which the crime can be committed. For example, one cannot “conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them.” I believe something like this formulation is what most people think of when they think of sedition. But Rhodes and his Oath Keepers were not charged under that "overthrow the Government" portion of the statute. They were charged with conspiring “by force to prevent, hinder, and delay the execution of any law of the United States.” (The laws allegedly being hindered were the Electoral Count Act and the Twelfth and Twentieth Amendments to the U.S. Constitution.) The caption in the Indictment could have set the charge out in this fashion, as a “conspiracy to by force prevent, hinder, and delay” particular laws of the United States, with a citation to 18 U.S.C. §2384. That is not what Department of Justice officials decided to do, however. They captioned the charge as “seditious conspiracy.” There was nothing improper about their decision, just as there was nothing improper about their decision to list §1512(c)(2) in the caption of Nordean as “obstruction of an official proceeding” rather than “witness-tampering.”

But the effect in the wider media culture was predictable. Several pro-Trump television commentators had been making the point that none of the January 6 defendants were seditionists, because none had been charged with seditious conspiracy. They could not say this anymore in light of the Rhodes Indictment and their prior comments were thrown back in their faces by progressive commentators. So be it. That’s politics. But, at least with respect to the indicted January 6 rioters, conspiring by force to prevent, hinder, and delay the execution of the Electoral Count Act (“seditious conspiracy”) is not substantially different than corruptly obstructing or conspiring to corruptly obstruct the very Congressional proceeding in which the Electoral Count Act is being executed. They are both serious charges that should be prosecuted vigorously if the facts so warrant. And if any Congressperson, Executive Branch official, or podcast host aided and abetted or joined a conspiracy to violate either statute, under traditional criminal law principles, he or she should be prosecuted as well.

Sloppy language, however, invites sloppy thinking and prosecuting someone for aiding and abetting a violent mob intent on forcefully stopping a critical Congressional proceeding or the execution of a statute, is quite different than prosecuting someone for seditious conspiracy because he told a crowd that the election was stolen, invited them to peacefully protest the vote count, or tried to convince Mike Pence that he had the power to refuse to certify certain slates of electors. (I wrote about John Eastman's potential criminal exposure, in the context of the Fifth Amendment's Privilege Against Self-Incrimination, here.) Likewise, prosecuting anyone for delaying the vote count by using the procedures set out in the Electoral Count Act, is without more, doomed to fail under rather basic constitutional and criminal law tests. The devil is always in the details of the purportedly criminal acts under examination.

The people intent on federally prosecuting Trump and his cohorts for the events on and surrounding January 6, 2021, need to think small and in terms of traditional criminal law principles. We witnessed a riot. We witnessed criminal assaults. We witnessed people invading Congressional offices and threatening to “Hang Mike Pence.” Some of the people who committed these acts were attempting to prevent the peaceful transfer of power to Joe Biden. There are statutes in place that appear to criminalize this conduct. The quest to use the criminal law to “go after the higher-ups” should focus on who, if anybody, aided, abetted, counseled, commanded, induced or procured the commission of these specific criminal offenses--not on people engaged in protected First Amendment political activity. In the words of the standard pattern aiding and abetting instruction, “whoever intentionally associated himself in some way with the crime and intentionally participated in it as he would in something he wished to bring about,” is punishable as a principal. My guess is that some pretty well-known people are sleeping uneasily these days. My further guess, and it is no more than a guess, is that the DOJ has been looking at these people for some time. But I seriously doubt, based on currently known information, it will go much beyond these folks.

(wisenberg)