Petition for Writ of Certiorari — Michael Minas, Petitioner v. United States
Supreme Court briefJan 3, 2018
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ATTACHMENT 1
No.
In The
SUPREME COURT OF THE UNITED STATES
MICHAEL MINAS, Petitioner,
V.
UNITED STATES OF AMERICA, Respondent
On Petition For Writ Of Certiorari
To The United States Court Of Appeals
For The Ninth Circuit
PETITION FOR WRIT OF CERTIORARI
C. TOMARKOOSH
ARKOOSH LAW OFFICES
802 W. Bannock St., Ste. 900
P.O. Box 2900
Boise, ID 83701
(208) 343-5105
torn. arkoosh@arkoosh.com
Counsel ofRecord
Attorney for Petitioner
QUESTION PRESENTED:
Must the activities which constitute the legitimate practice of medicine in the
prosecution of a licensed physician for unlawful distribution of opioids in violation of
21 U.S.C. § 841 be defined by state law and explained in the Coiu*t's instructions, or
may the Court instead ignore state law and rely solely on expert testimony to describe
for the jury what activities constitute the practice of medicine?
LIST OF PARTIES
All parties appear in the caption of the case on the cover page.
TABLE OF CONTENTS
Page
QUESTION PRESENTED
i
LIST OF PARTIES
ii
TABLE OF AUTHORITIES
iii
PETITION FOR WRIT OF CERTIORARI
1
OPINIONS BELOW
1
JURISDICTION
1
CONSTITUTION AND STATUTORY PROVISIONS INVOLVED
1
STATEMENT OF THE CASE
2
REASONS FOR GRANTING THE PETITION
3
CONCLUSION
5
INDEX TO APPENDICES
App. 1
III
TABLE OF AUTHORITIES
Page
Cases
Gonzales v. Oregon, 546 U.S. 243 (2006)
2, 3, 1
United States v. Feingold, 454 F. 3d 1001 (9th Cir. 2006)
United States v. Moore, 423 U.S. 122 (1975)
2, 4
2
Constitutional Provisions
Amendment 10
1
Statutes
21U.S.C. §841
i, 2,3
28 U.S.C. § 1254(1)
1
Idaho Code § 54-1803
2, 3
Other Authorities
Controlled Substances Act
3, 4
IV
IN THE SUPREME COURT
FOR THE UNITED STATES
PETITION FOR A WRIT OF CERTIORARI
Petitioner Michael Minas respectfully submits this petition for a writ of
certiorari.
OPINIONS BELOW
The opinion of the Ninth Circuit Court of Appeals appears at Appendix A to
this Petition. The court's opinion was published at 697 Fed.Appx. 531 (Mem)(9th Cir.
1917), but not chosen for publication in West's Federal Reporter.
JURISDICTION
The Ninth Circuit Court of Appeals issued its decision on September 14, 2017.
(App. A). Dr. Minas petitioned for rehearing on September 21, 2017. (App. B). The
Ninth Circuit denied rehearing on October 24, 2017. (App. C). The Ninth Circuit
Court of Appeals issued its mandate on November 1, 2017. (App. D). The jurisdiction
of this court is invoked under 28 U.S.C. § 1254(1).
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
Amendment 10:
[Rights reserved to states or people]. —The powers not delegated to the United
States by the Constitution, nor prohibited by it to the states, are reserved to the states
respectively, or to the people.
STATEMENT OF THE CASE
A jury in the District of Idaho convicted Dr. Michael Minas of 80 counts of
trafficking opioids on May 5, 2017, in violation of 21 U.S.C. § 841. The conviction
arose out of the government's allegations that Dr. Minas prescribed opioids outside
the regular course of medical practice and without a legitimate medical purpose.
United States v. Moore, 423 U.S. 122 (1975). Dr. Minas' defense primarily relied upon
his activities being the legitimate practice of medicine. In support of this defense, Dr.
Minas requested a jury instruction paraphrasing Idaho Code § 54-1803 (App. E, F
and G), which defines the practice of medicine under state law. The district court
dechned to instruct the jury upon the elements of the practice of medicine as defined
by Idaho law, leaving the jury to glean what it could from expert testimony regarding
what behavior constitutes the legitimate practice of medicine, (App. H).
In 2006, this Court released Gonzales v. Oregon, 546 U.S. 243 (2006) holding
that the state legislatures, and not functionaries of the Federal Government, define
general standards of medical practice.
The Ninth Circuit affirmed the conviction of Dr. Minas, holding the district
court did not err in denying Dr. Minas' proposed jury instruction because, "[t]he
instruction would have been confusing, and the instructions given fairly and
adequately covered the proper finding of intent. See Feingold, 454 F.3d at 1008."
(App. A-3), citing U.S. u. Feingold, 454 F.3d 1001 (9^^ Cir. 2006). Further, the Ninth
Circuit found the government's expert testimony "necessary to assess whether
Minas's [sic] actions were criminal." (App. A-3).
Dr. Minas now seeks a writ of certiorari from this Court on the important
question presented in this case.
REASONS FOR GRANTING THE PETITION
Reliance upon the testimony of federally-sponsored experts to define the
practice of medicine for the jury conflicts with the mandate of this Court in Gonzales
that state legislatures, not the Department of Justice, define the practice of medicine.
This Court addressed in Gonzales the interplay between the Controlled
Substances Act enacted in 1970, of which the statute of conviction here, 21 U.S.C. §
841, is a part, and state law, excludes federal functionaries from making medical
policy decisions. In Gonzales, the United States Attorney General sought to prohibit
physician-assisted suicide as a criminal activity under the Controlled Substances Act,
even though the state of Oregon's legislature specifically authorized that activity as
the legitimate practice of medicine. This Court held that the states, and not a federal
executive, define general standards of medical practice.
The State of Idaho has defined the general standards of medical practice by
defining what is the practice of medicine in Idaho Code § 54-1803.
(App. H).
Generally, those activities constituting the practice of medicine in Idaho include the
examination of a patient, diagnosis and treatment of the patient's condition. The
evidence in this case is uncontroverted that Dr. Minas was treating only for a
diagnosis of pain or what he behaved to be a diagnosis of pain. (App. B-6). At trial in
this matter, the court dechned to present this paradigm to the jury as a state
statutory construct.
Instead, the court characterized that whether activity was
criminal as a "battle of experts." (App. 1-5).
Feingold does, indeed, describe a battle of experts, which thus appears to have
become the standard in the Ninth Circuit when defining the practice of medicine.
Relying upon its earlier decision in Feingold, the Ninth Circuit commended
exclusive reliance upon experts as "necessary" (App. A-3), and dismissed the need to
instruct the jury upon the legislative definition of the practice of medicine as
"confusing." (App. A-3).
The confusion referenced by the Ninth Circuit could only
arise fi'om any perceived difference between what a federally-sponsored expert
describes as the legitimate practice of medicine and what the Idaho state legislature
has statutorily described as the legitimate practice of medicine. The experts' views
of the practice of medicine went to the jury. The Idaho state statutory definition of
the practice of medicine, which this Court deems controlling for purposes of
determining violation of the Controlled Substances Act by physicians, did not go to
the jury, but should have.
CONCLUSION
Based on the foregoing, Petitioner respectfully submits that this Petition for
Writ of Certiorari should be granted.
DATED this ^ day of January, 2018.
Respectfully submitted,
C. Tom Arkoosh
ARKOOSH LAW OFFICES
802 W. Bannock St., Ste. 900
P.O. Box 2900
Boise, ID 83701
(208) 343-5105
tom.arkoosh@arkoosh.com
Counsel of Record
Attorney for Petitioner
INDEX TO APPENDICES
Page
Appendix A:
Memorandum of the 9'^ Circuit Court
A-1
Appendix B:
Appellant's Petition for Rehearing En Banc (Rule 35, FRAP) and
by the Panel (Rule 40, FRAP)
B-1
Appendix C:
Order of the
Circuit Court,
dated October 24, 2017
C-1
Appendix D:
Mandate of the 9'^ Circuit Court
D-1
Appendix E:
Proposed Jury Instruction
E-1
Appendix F:
Trial transcript pages regarding request to include proposed jury instruction.... F-1
Appendix G:
Idaho Code § 54-1803
G-1
Appendix H:
Trial transcript pages regarding district court's denial of request to include
proposed jury instruction
H-1
Appendix I:
Order of the District Court in the District of Idaho,
dated September 8, 2017
1-l
App.l
APPENDIX A
APPENDIX A
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NOT FOR PUBLICATION
FILED
UNITED STATES COURT OF APPEALS
SEP 14 2017
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
No.
Plaintiff-Appellee,
U.S. COURT OF APPEALS
16-30209
D.C. No.
l:14-cr-00109-EJL-l
V.
MICHAEL MINAS,
MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Idaho
Edward J. Lodge, District Judge, Presiding
Argued and Submitted August 29, 2017
Seattle, Washington
Before: McKEOWN and GOULD, Circuit Judges, and ROTHSTEIN,** District
Judge.
Michael Minas, a physician, appeals his conviction on 80 counts of
distribution of a controlled substance. We have jurisdiction under 28 U.S.C. §
1291, and we affirm.
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
The Honorable Barbara Jacobs Rothstein, United States District Judge
for the Western District of Washington, sitting by designation.
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Physicians are subject to criminal prosecution under 21 U.S.C. § 841 when
their actions fall outside the usual course ofprofessional practice and are
conducted with no legitimate medical purpose. United States v. Feingold, 454
F.3d 1001, 1003 (9th Cir. 2006) (citing United States v. Moore, 423 U.S. 122, 124
(1975)); see also 21 C.F.R. § 1306.04(a). The indictment tracked the language of §
841 and properly alleged that Minas acted outside the usual course of professional
practice and with no legitimate medical purpose.
The district courtproperly denied Minas's motion for a hearing under
Franks v. Delaware, 438 U.S. 154 (1978). Minas failed to show that the search
warrant affiant intentionally or recklessly made false statements or omitted
information in the affidavit.
Minas objected to the district court's admitting expert testimony related to
morphine equivalent dose ("MED"), the Idaho Board of Medicine's Model Policy
on the use of opioid analgesics, and Idaho's opioid epidemic. Where a defendant
objects before the trial court, we review evidentiary rulings for abuse of discretion.
United States v. Hankey, 203 F.3d 1160, 1166-67 (9th Cir. 2000). Where a
defendant fails to make a Rule 403 objection before the trial court, we review for
plain error. United States v. Gomez-Norena, 908 F.2d 497, 500 (9th Cir. 1990).
MED is a standard tool used to calculate the overall strength of opioid narcotics.
The Model Policy is nationally and locally recognized as reflecting the relevant.
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usual course ofprofessional practice. Testimony revealed that Idaho adopted the
Model Policy in part because of concerns over Idaho's opioid epidemic.
Accordingly, this expert testimony was not only helpful to the jury, but was
necessary to assess whether Minas's actions were criminal; and, therefore, the
district court properly admitted the testimony. See Feingold, 454 F.3d at 1007;
United States v. Boettjer, 569 F.2d 1078, 1082 (9th Cir. 1978).
The government having presented ample evidence of Minas's guilt through
the testimony oftwenty-two witnesses, the district court did not err in concluding
that sufficient evidence supported the conviction. SeeFeingold, 454 F.3d at 100406,1012-13; see also United States v. Varma, 691 F.2d 460, 464 n.2 (10th Cir.
1982) (collecting cases). Nor did it err in denying Minas's proposed jury
instruction that defined the "practice of medicine" in Idaho. The instruction would
have been confusing, and the instructions given fairly and adequately covered the
proper finding of intent. See Feingold, 454 F.3d at 1008.
AFFIRMED.
A-3
APPENDIX B
APPENDIX B
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COANo. 16-30209
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF
AMERICA,
U.S. DISTRICT COURT NO.
I:14-CR-00109-EJL
PlaintiffrAppellee,
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
V.
MICHAEL MINAS,
Defendant/Appellant.
APPELLANT'S PETITION FOR REHEARING EN BANC (RULE 35,
FRAP) AND BY THE PANEL (RULE 40, FRAP)
Appeal from the District Court for the District of Idaho
Honorable Edward J. Lodge, District Judge, presiding.
ARKOOSH LAW OFFICES
Kevin T. Maloney
Assistant United States Attorney
802 W. Bannock Street, Suite 900
Darci N. Ward
P.O. Box 2900
Assistant United States Attorney
Washington Group Plaza IV
800 Park Boulevard, Suite 600
Boise, ID 83712
(208)334-1211
C. Tom Arkoosh
Boise, ID 83701
(208) 343-5105
Attorney for Defendant/Appellant
Attorney for Plaintiff/Appellee
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TABLE OF CONTENTS
TABLE OF AUTHORITIES
ii
RULE 35 STATEMENT
1
INTRODUCTION
1
ISSUE
2
FACTS
3
DISCUSSION
4
CONCLUSION
9
CERTIFICATE OF COMPLIANCE
11
CERTIFICATE OF MAILING
12
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TABLE OF AUTHORITIES
Cases
Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993)
7
U.S. V. Feingold, 454 F.3d 1001 (9th Cir. 2006)
4, 9
U.S. V. Moore, 423 U.S. 122 (1975)
4, 8
Statutes
Idaho Code § 54-1803
6
Rules
9th Circuit Rule 32-1
9^"^ Circuit Rule 32-1(c)
F.R.A.P. 32(a)(5)
F.R.A.P. 32(a)(6)
F.R.A.P. 32(a)(7)(B)
F.R.A.P. 32(a)(7)(B)(iii)
F.R.A.P. 32(a)(7)(C)
F.R.A.P. 32(f)
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COMES NOW the Appellant, Dr. Michael Minas ("Dr. Minas"), by and
through his counsel ofrecord, C. Tom Arkoosh ofArkoosh Law Offices, and hereby
respectfully submits this Petitionfor Rehearing.
RULE 35 STATEMENT
This proceeding involves a question of exceptional current importance as
stated in the issue herein, i.e., how to properly distinguish between the practice of
medicine and opioid drug trafficking such that prescribing physicians can
prospectively understand a fairly propagated standard in a time of heightened
scrutiny.
I.
INTRODUCTION
In 2013, the Federation of State Medical Boards adopted a "Model Policy on
the Use of Opioid Analgesics in the Treatment of Chronic Pain" ("Guidelines").
ER00680-00716.
The Idaho Board of Medicine subsequently adopted these
Guidelines. ER00674-00685.
The government charged Dr. Minas with 146 counts of opioid trafficking
occurring in 2013 and 2014. ER00625. The search warrant affidavit in this case,
the indictment, and the evidence given over objection by the government's experts
at trial all equated failure to follow the Guidelines with practicing without a
legitimate medical purpose. ER00627, 00628, 00297: 19-21; 00309: 23 - 00310: 4.
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Further, the government's experts also opined that prescribing an amount ofopioids
over 100 mg per day of Morphine Equivalent Doses ("MEDs") was without a
legitimate medical purpose, even though the government experts described this
threshold as "arbitrary." ER00293: 18-20.
Even in face of these incorrect contentions, the Court declined to give Dr.
Minas his proffered instruction that the practice ofmedicine as defined by the Idaho
statute consisted of examination, diagnosis, and treatment. ER00417, 00063: 24 -
00064: 25. This one instruction would have corrected the deliberate misimpression
that only by following the Guidelines and prescribing less than 100 MEDs could a
doctor be engaged in the legitimate practice of medicine.
The jury convicted Dr. Minas of 80 of the 146 counts of drug trafficking
opioids charged in the Indictment after being allowed to hear that the distinction
between whether Dr. Minas practiced medicine or whether he trafficked opioids was
only whether he followed the Guidelines and prescribed under 100 MEDs per day.
II.
ISSUE
This issue is represented as both important and overlooked by the
Memorandum Decision of the panel:
Whether the dual elements defining drug trafficking of opioids by a
prescribing physician, i.e., prescribing opioids outside the usual course of practice
B-5
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and for no legitimate medical reason, adequately distinguishes drug trafficking from
the professional practice ofmedicine when the District Court allows the government
to limit in its evidence what is the legitimate practice ofmedicine to only following
the Guidelines and prescribing no more than 100 MEDs without further informing
the jury of the true definition of the practice of medicine.
in.
FACTS
In this case, the evidence was uncontroverted that Dr. Michael Minas
prescribed only for the relief of pain, or thought he was prescribing for the relief of
pain. ER 00201:12-14; 00202:12-14, 24-25; 00203:4-5; 00204:16-22; 00205:9-14;
00206:4-7; 00211:25-00212:4; 00213:23-00214:3; 00215:16-20; 00216:5-7, 17-19;
00217:7-8, 19-22; 00218:8-21; 00219:5-8; 00220:16-18; 00221:9-16; 00222:8-13,
20-23;
00223:11-17;
00224:13-15;
00225:2-13;
00230:10-12;
00231:21-24;
00232:4-7; 00233:9-10, 14-15, 22-23; 00234:1; 00235:11-14; 00236:13-16;
00237:2-14;
00238:16-00239:2;
00240:9-15;
00241:22-00242:7;
00243:2-6;
00244:9-14; 00245:22-00246:2; 00247:22-00248:6; 00249:23-00250:6; 00250:2021; 00251:8-10; 00252:3-6; 00253:10-19; 00259:16-22; 00260:23-25; 00261:20-23.
Further, the record is uncontroverted that prescribing opioids for the relief ofpain is
a legitimate medical purpose. ER00170:22-00171:2; 00171:10-15; 00291:16-18;
00297:10-18. The government's experts asserted that practitioners used opioids to
reduce pain. ER 00183:22-25; 00184:16-21; 00297:10-15.
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The government's experts, however, testified that notwithstanding this
evidence. Dr. Minas' prescriptions had no legitimate medical purpose because Dr.
Minas made the prescriptions without following the cautionary steps found in the
Guidelines and because the amount of the prescriptions exceeded somebody's
recommendation of 100 MEDs per day.
In summary, the government's experts
testified they could discern that no medical purpose existed for Dr. Minas'
prescriptions because of how he assessed and inter-related with his patients and
because of how much he prescribed. From this evidence, the jury concluded that
even though Dr. Minas engaged in the legitimate medical purpose of treating pain,
he intentionally prescribed without any legitimate medical purpose. They arrived at
this conclusion because they were given government evidence that notwithstanding
that Dr. Minas was treating pain, his means and amounts prescribed would not be
sanctioned by a legitimate practitioner because he failed to follow best practices.
IV.
DISCUSSION
The decision in this case puts the Circuit at the crux of whether the Ninth
Circuit instructs the Department of Justice upon what constitutes criminal drug
trafficking or whether the Department of Justice will instruct this Circuit.
U.S. V. Moore, 423 U.S. 122 (1975) and U.S. v. Feingold, 454 F.3d 1001 (9th
Cir. 2006) make clear that the definition of drug trafficking opioids by a physician
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licensed to prescribe Schedule II medications is whether the physician engages in
the professional practice ofmedicine, ormerely traffics drugs. This search has been
further refined to query whether the doctor intentionally distributed opioids outside
his professional practice and whether the physician intentionally prescribed opioids
with no legitimate medical purpose.
It is respectfully submitted that the current test to ferret out drug trafficking
by doctors, i.e., prescribing outside of the usual course of professional practice and
without a legitimate medical purpose, can include non-criminal activity. This is
especially so whenthe Courtallows the government to definethe legitimate practice
of medicine as only following the Guidelines and prescribing under 100 MEDs per
day without further informing the jury that the legitimate practice of medicine is
more broadly defined by statute to mean examination, diagnosis, and treatment. For
instance, many times the negligent or experimental practice ofmedicine would have
no legitimate medical purpose in the eyes of more traditional practitioners whom the
government pays to testify against their fellows. These more traditional practitioners
may follow different means or prescribe lesser amounts of pain medications than a
defendant. When measured this way, "no legitimate medical purpose" simply means
the bad practice of medicine by a defendant. The phrase "without legitimate medical
purpose," without more, paints with too broad a brush by its focus on the legitimate
and illegitimate without defining what is medical and what is not medical.
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To counter the ambiguity of the phrase "no legitimate medical purpose"
caused by the testimony ofthe government's experts describing their view Dr. Minas'
prescriptions were too large and poorly controlled to ever be legitimate, Dr. Minas
requested a jury instruction advising the jury of the elements of what constitutes the
practice of medicine in Idaho. In essence, Idaho defines the practice of medicine as
examination, diagnosis, and treatment of a condition. This definition encompasses
all practice of medicine regardless of whether an observer perceives the means of
practice, or even its purpose, to be legitimate or illegitimate. Thus, ifthe instruction
had been given, when the government experts acknowledged that the treatment of
pain was a legitimate medical purpose, but that Dr. Minas had no legitimate medical
purpose because of the amount of medicine prescribed and means of treatment of
pain, the jury would have been informed by the Court of what Idaho law describes
as a legitimate medical purpose by describing what doctors do that makes them
doctors. Idaho Code § 54-1803. The jury would have been adequately informed to
judge whether the government expert confused the practice of medicine done
negligently or poorly with drug trafficking.
Both the District Court and the Circuit panel commented that a jury instruction
defining the practice of medicine would have confused the jury in light of the
evidence. This is a correct conclusion. A jury instruction educating a jury that a
physician who examined, diagnosed, and treated in conjunction with the
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uncontradicted evidence that Dr. Minas was treating diagnosed pain, and such
treatment is alegitimate medical purpose, would have confounded the jury regarding
how the government's experts could conclude Dr. Minas abandoned the practice of
medicine to traffic drugs. Such an instruction would have refocused the jury on the
real decision they had to make, i.e., whether Dr. Minas practiced medicine or
trafficked drugs, rather than the decision of whether Dr. Minas violated certain
arbitrary best-practice guidelines.
Sometimes using only the elements of "outside the usual course of practice"
and "for no legitimate medical purpose" are too granular to accurately capture the
distinction between the practice of medicine and drug trafficking.
Sometimes
practitioners can breach both standards and still be practicing medicine rather than
trafficking drugs. This possible confusion is especially so when the government's
experts limit legitimate medical purpose to only following certain best-practice
guidelines as was done in this case. Simply telling the jury the definition of what is
the practice of medicine, which lays at the heart ofthe issue, allows the jury to make
a legitimate judgment for itself.
Ironically, if the Court had given Dr. Minas' Daubert motion more credence,
the Court could have concluded that the legitimate practice of medicine was not
solely limited to practicing in accord with the Guidelines and prescribing under a
suggested MED amount.
The Court would have concluded these are arbitrary
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guidelines, not scientific guidelines.
The convictions frame and spotlight a more picante irony: Because the Court
allowed the measure ofconviction to be the arbitrary Guidelines, the jury convicted
Dr. Minas for failure to follow guidelines promulgated the same year, or the year
prior, to the alleged conduct, and, in some instances, for conduct occurring before
the adoption of the Guidelines in April 2013. Only by accepting the arbitrary
Guidelines as the criminal standard, which it is not, can the denial of Dr. Minas'
Rule 29 motion be justified. ER00008-14.
The definitional struggle in Moore was to isolate when a doctor engaged in
the "professional practice" of medicine. If the professional practice of medicine
becomes limited only to instances when a physician follows best practices instead
of being defined by the activities of examination, diagnosis and treatment, many
activities that meet the definition of the practice of medicine will be criminal if the
government finds a conservative physician willing to testify that prescribing outside
these guidelines has no legitimate medical purpose AND the Court declines to tell
the jury what is the professional practice of medicine.
The time now ripens to eradicate the canard that following arbitrary best
practices equates to the only definition ofthe practice ofmedicine. The Department
of Justice recently initiated a special prosecution task force sending agents and
special prosecutors throughout the nation. See Attachment 1 attached hereto. This
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crusade focuses upon "which physicians are writing opioid prescriptions at a rate
that far exceeds their peers." By its description, this program focuses upon the
criminality of prescribing "too much," just as occurred in the instant case, without
seeming regard for whether the prescribing physician was or was not actually
practicing medicine. If this Circuit allows prosecutions for failure to follow best
practices, without also assuring that the jury is instructed upon what is and what is
not the practice of medicine versus drug trafficking, the Department of Justice has
paved an uninterrupted path for physicians intending to be engaged in the
professional practice of medicine straight to the prison doorway.
All through these proceedings, from the search warrant, indictment,
evidentiary rulings, and throughthe instructions, the assumption obtainedthat failure
to follow best practices constituted drug trafficking. These missteps could well have
been put back on the true course by granting any of Dr. Minas' motions, most of
which have been brought to this Court of Appeals for review. Instead, Dr. Minas
received no motion hearings, and the Court denied all motions in chambers.
V.
CONCLUSION
Respectfully, this requests the panel to rehear or this Court to initiate an en
banc panel to hear the question of whether the practice of medicine can be defined
only by reference to best practices, or, as stated in Feingold, whether the practice of
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medicine, even practice constituting intentional malpractice, is not drug trafficking,
so long as the physician does not abandon the professional practice ofmedicine. And
this remains true whether ornot the doctor follows best practices.
RESPECTFULLY SUBMITTED this 20^^ day of September, 2017.
ARKOOSH LAW OFFICES
/s/C. Tom Arkoosh
C. Tom Arkoosh
Attorneys for Michael Minas
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CERTIFICATE OF COMPLIANCE
Pursuant to Fed. R. App. P. 32(a)(7)(C), I certify the following:
This briefcomplies with the type-volume limitation ofRule 32(a)(7)(B) ofthe
Federal Rules ofAppellate Procedure and Ninth Circuit Rule 32-1 because this brief
contains 2,017 words, excluding the parts of the brief exempted by Rules
32(a)(7)(B)(iii) and 32(f) of the Federal Rules of Appellate Procedure and Circuit
Rule 32-1(c).
This brief complies with the typeface requirements of Rule 32(a)(5) of the
Federal Rules of Appellate Procedure and the type style requirements of Rule
32(a)(6) of the Federal Rules of Appellate Procedure because this brief has been
prepared in a proportionally spaced typeface using the 2013 version of Microsoft
Word in 14 point Times New Roman.
DATED this 21st day of September, 2017.
ARKOOSH LAW OFFICES
/s/ C. Tom Arkoosh
C. Tom Arkoosh
Attorney for Michael Minas
B-14
Case: 16-30209, 09/21/2017, ID: 10589343, DktEntry: 69-1, Page 15 of 15
CERTIFICATE OF MAILING
I HEREBY CERTIFY that I electronically filed the foregoing Appellant's
Petitionfor Rehearing En Banc and by thePanel with the Clerk of the Court for the
United States Court ofAppeals for the Ninth Circuit by using the appellate CM/ECF
system onthe 21st day of September, 2017. I certify that all participants in the case
are registered CM/ECF users and that service will be accomplished by the appellate
CM/ECF system.
is! C. Tom Arkoosh
C. Tom Arkoosh
B-15
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ATTACHMENT 1
B-16
9/20/2017
H^^ngntjffgustice
Department of Justice
Office of Public Affairs
FOR IMMEDIATE RELEASE
Wednesday, August 2, 2017
Attorney General Sessions Announces Opioid Fraud and Abuse Detection Unit
Attorney General Jeff Sessions today announced theformation of the Opioid Fraud and Abuse Detection Unit, a new
Department of Justice pilot program to utilize data to help combat thedevastating opioid crisis that is ravaging families
and communities across America.
Speaking at the Columbus Police Academy today, Attorney General Sessions said that the new Opioid Fraud and
Abuse Detection Unit will focus specifically on opioid-related health care fraud using data to identify and prosecute
individuals that are contributing to this prescription opioid epidemic,
Additionally, as part of the program, the Department will fund twelve experienced Assistant United States Attorneys for
a three year term to focus solely on investigating and prosecuting health care fraud related to prescription opioids,
including pill mill schemes and pharmacies that unlawfully divert or dispense prescription opioids for illegitimate
purposes.
The following districts have been selected to participate in the program;
1. Middle District of Florida,
2. Eastern District of Michigan,
3. Northern District of Alabama,
4. Eastern District of Tennessee,
5. District of Nevada,
6. Eastern District of Kentucky,
7. District of Maryland,
8. Western District of Pennsylvania,
9. Southern District of Ohio,
10. Eastern District of California,
11. Middle District of North Carolina, and
12. Southern District of West Virginia.
In his speech, the Attorney General discussed the new program:
"First, I am announcing a new data analytics program - the Opioid Fraud and Abuse Detection Unit. I have created this
unit to focus specifically on opioid-related health care fraud using data to identify and prosecute individuals that are
contributing to this opioid epidemic. This sort of data analytics team can tell us important information about prescription
opioids—like which physicians are writing opioid prescriptions at a rate that far exceeds their peers; how many of a
doctor's patients died within 60 days of an opioid prescription; the average age of the patients receiving these
prescriptions; pharmacies that are dispensing disproportionately large amounts of opioids; and regional hot spots for
opioid issues.
"With this data in hand, I am also assigning 12 experienced prosecutors to focus solely on investigating and prosecuting
opioid-related health care fraud cases in a dozen locations around the country where we know enforcement will make a
difference in turning the tide on this epidemic. These prosecutors, working with FBI, DEA, HHS, as well as our state and
B-17
https://www.justice.gov/opa/pr/attorney-general-sessions-announces-opioid-fraud-and-abuse-detection-unit
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local partners, will help us target and prosecute these doctors, pharmacies, and medical providers who are furthering
this epidemic to line their pockets. These prosecutors will be based in several states across the country, including
Kentucky, West Virginia, Tennessee, and right herein Southern Ohio.
"With these new resources, we will be better positioned to identify, prosecute, and convict some of the individuals
contributing to these tens of thousands of deaths a year. The Department is determined to attack this opioid epidemic,
and I believe these resources will make a difference."
Full remarks as prepared for delivery are provided below:
Thank you Benjamin (Glassman) for that introduction, and more importantly, thank you for your 12 years of hard work at
the Department tokeep this community safe. And, ofcourse, thank you toyour Attorney General Mike Dewine. Iknow
they care about these issues deeply. And Senator Portman, who couldn't bewith ustoday, but Iknow firsthand he has
been a passionate and steadfast leader in the Senate about tackling the opioid problem for years.
Iwanted to be here with you all today because Ohio isat thecenter ofthis drug crisis that is gripping our entire nation.
This crisis affects all of us, butit is especially taking its toll on this community.
On average, one person in Columbus dies ofa drug overdose every day.
And that pace is only accelerating. According to a survey of Ohio's coroners, more than 4,000 Ohioans died ofa drug
overdose last year.And in Columbus, the coroner has already seen a 66 percentJump this year from the same time last
year.
These aren't just numbers. These are moms and dads. These are sisters, brothers, and grandchildren. These are
neighbors and co-workers. These are friends. These are Americans.
Just last week, a two-year-old girl in Dayton was hospitalized for a suspected opioid overdose—two years old.
In 2015, more than 52,000 Americans lost their lives to drug overdoses. And the numbers we have for 2016 show
another increase—a big increase. Based on preliminary data, nearly 60,000 Americans lost their lives to drug
overdoses last year. That will be the highest drug death toll and the fastest increase in that death toll in American
history. This is not a sustainable trend nor an acceptable America.
This crisis is being driven primarily by opioids—prescription drugs, heroin, and synthetic drugs like fentanyl.
According to the New England Journal of Medicine, we're seeing more availability, higher purity, and lower price.
They're lacing heroin and cocaine with fentanyl—a drug 30 to 50 times more powerful than heroin. As a result, the
drugs on the street are now more powerful, more addictive, and more dangerous than ever. And they're not just
dangerous for users: even being accidently exposed to just a few grains of fentanyl can kill a police officer or
paramedic.
Sadly, this was almost the case just a couple months ago in East Liverpool, Ohio when Officer Chris Green brushed off
a few grains of white powder from his shirt an hour after a traffic stop and fell to the floor. Luckily, he was in his squad
room and they got to him immediately. As his police chief said, "if he would have been alone, he would have been
dead." Or imagine if he'd gone straight home that day to give his kids a hug? These are terrifying thoughts for our law
enforcement.
To confront a crisis on this scale, we must take a comprehensive approach to the problem. There are three
components: prevention, enforcement, and treatment.
Treatment is important. In some cases, treatment can help break the cycle of addiction and crime and help people get
their lives back together.
But treatment alone is not enough. Treatment often comes too late. By the time many people receive treatment, they,
their families, and communities have already suffered so much. The struggle to overcome addiction can be a long
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9©?«tTO899^^SvsE)'Rft@ti?lVJn6BP^ ll%^na^Tt)^fgustice
process - and it can fail. And not only can itfail, itvery often fails.
In recent years, some of the government officials in this country have sent mixed messages about the harmfulness of
drugs. We must not capitulate intellectually or morally to drug use. We must create a culture that is hostile to drug
abuse. We know this can work. It has worked in the past for drugs, but also for cigarettes and seatbelts. Acampaign
was mounted, it took time, and it waseffective. We need tosendsuch a clear message now.
The Department of Justice has been working diligently to improve our prevention efforts. We are doing that through
raising awareness, through drug take-back programs, and through DEA's 360 Strategy program - Dayton was recently
announced as a 2017 pilot city.
Prevention is what we at the Department do every day—because enforcement is prevention. Enforcing our laws helps
keep drugs out ofour country, decrease their availability, drive up their price, and reduce their purity and addictiveness.
DEA tells us that80 percent ofheroin addiction startswith prescription drug addiction. We must stopthe abuse of
prescription drugs.
Earlier this month, the Department announced the largest health care fraud takedown in American history. DOJ
coordinated the efforts of more than 1,000 state and federal law enforcementagents to arrest more than 400
defendants. More than 50 of these defendants were doctors and have been charged with opioid-related crimes, which
means this was also the largest opioid-related fraud takedown inAmerican history.
And, just a week after we made that announcement, we announced the seizure and take down of AlphaBay— the
largest dark net marketplace takedown in history. This site hosted some 220,000 drug sale listings and was responsible
for countless synthetic opioid overdoses, including the tragic death of a 13 year old in Utah.
These efforts build on the good work that U.S. Attorney Glassman and the Department have accomplished here. In late
January, a doctor from New Albany, Ohio pled guilty to maintaining a clinic as a front for drug trafficking. He forfeited
more than $29 million in seized assets from illegal drug trafficking.
A few months later, in April, a doctor from Portsmouth, Ohio, pled guilty to conspiring to distribute a controlled
substance through a pain clinic. For six years, the clinic saw more than 20 patients a day, who each paid at least $200
in cash. At one point the defendant even opened her own dispensary at the clinic, so she could fill her own prescriptions
for desperate patients.
These cases are beginning to roll in from all over the country.
On behalf of the Department, I want to say thank you to U.S. Attorney Glassman and everyone who worked on these
cases. You have made this Department proud—and more importantly, you have made the people of Ohio safer.
And we can and must do more. Which is why today, we are announcing a new effort to target our federal resources
against this epidemic. Ifyou are a doctor illegally prescribing opioids for profit or a pharmacist letting these pills walk out
the door and onto our streets based on prescriptions you know were obtained under false pretenses, we are coming
after you. We will reverse these devastating trends with every tool we have.
First, I am announcing a new data analytics program - the Opioid Fraud and Abuse Detection Unit. I have created this
unit to focus specifically on opioid-related health care fraud using data to identify and prosecute individuals that are
contributing to this opioid epidemic. This sort of data analytics team can tell us important information about prescription
opioids—like which physicians are writing opioid prescriptions at a rate that far exceeds their peers; how many of a
doctor's patients died within 60 days of an opioid prescription; the average age of the patients receiving these
prescriptions; pharmacies that are dispensing disproportionately large amounts of opioids; and regional hot spots for
opioid issues.
With this data in hand, I am also assigning 12 experienced prosecutors to focus solely on investigating and prosecuting
opioid-related health care fraud cases in a dozen locations around the country where we know enforcement will make a
difference in turning the tide on this epidemic. These prosecutors, working with FBI, DEA, HNS, as well as our state and
local partners, will help us target and prosecute these doctors, pharmacies, and medical providers who are furthering
B-19
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3/4
9/2(W0i7
CaSte'®6'S(!^^s09)W20TE^,qB!i»ic®rae9348^s0SSBWtrVJ"6e3B}P^SnSW^^^
this epidemic to iine their pockets. These prosecutors wiii be based in severai states across the country, inciuding
Kentucky, West Virginia, Tennessee, and right here in Southern Ohio.
With these new resources, we will be better positioned to identify, prosecute, and convict some of the individuals
contributing to these tens of thousands of deaths a year. The Department is determined to attack this opioid epidemic,
and I believe these resources will make a difference.
And I issuea plea to all physicians, dentists, pharmacists: slow down. First do no harm.
These efforts will make all of us safer—and not just from the threat of drug addiction. They also help us reduce violence
in our communities.
Drug trafficking isan inherently violent business. If you want to collect a drug debt, you can't file a lawsuit in court. You
collect it by the barrel of a gun.
By putting traffickers behind bars and reducing the supply ofdangerous drugs, we will prevent much ofthe violence that
is associated with drug dealing.
We also have to recognize that most ofthe heroin, cocaine, methamphetamine, and fentanyl in this country got here
across our Southern border. Under President Trump's strong leadership, the federal government is finally getting
serious aboutsecuring ourborders. Illegal entries are down 50 percent already and the wall has not even gone up.
We have also seen steep decreases in drug prices on the street. But the price we have paid as a country has only gone
up. If you ask the economists, they'll tell you that prescription opioid addiction costs our economysome $78 billion a
year and other illicit drugs cost us another $193 billion a year. Remember, many of these drugs are paid for by private
insurance, Medicaid, Medicare, and the VA. Butwhat is even moredevastating is the price we have paid in broken
relationships, broken lives, and death rates the likes of which we have never seen before.
In the face of the worst drug crisis in our history, we need to use every lawful tool we have. But I'm convinced this is a
winnable war. We will be calling on America's great physicians and health care workers to take special care with
addictive drugs. And in order to win, we are committing more Department of Justice resources to combat this epidemic,
as well as continue to work to strengthen our partnerships with you—law enforcement on the front lines.
Let me ask you to do a simple thing: after every arrest for illegal possession of an illegal prescription, make every effort
to get the arrestee to tell you where he or she got the drugs. We did that in Mobile and it led us to the two biggest
sources in town. We need to hammer these illegal suppliers. You are ultimately the most effective resources that we as
a country have in this effort. You have a tough job, but it's a job worth doing.
But you can also know this: you have our thanks and this Department of Justice will always have your back. Thank you.
Topic(s):
Drug Trafficking
Component(s):
Office of the Attornev General
Press Release Number:
17-861
Updated August 2, 2017
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APPENDIX C
APPENDIX C
Case: 16-30209,10/24/2017, ID: 10628871, DktEntry: 70, Page 1 of 1
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
OCT24 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA,
No.
Plaintiff-Appellee,
16-30209
D.C. No.
l:14-cr-00109-EJL-l
District of Idaho,
V.
Boise
MICHAEL MINAS,
ORDER
Defendant-Appellant.
Before: McKEOWN and GOULD, Circuit Judges, and ROTHSTEIN,* District
Judge.
Appellant's Petition for Rehearing is DENIED.
The full court has been advised of the Petition for Rehearing En Banc and no
judge ofthe court has requested a vote on the Petition for Rehearing En Banc.
Fed. R. App. P. 35. Appellant's Petition for Rehearing En Banc is also DENIED.
The Honorable Barbara Jacobs Rothstein, United States District Judge
for the Western District of Washington, sitting by designation.
C-1
APPENDIX D
APPENDIX D
Case; 16-30209,11/01/2017, ID: 10639713, DktEntry: 71, Page 1 of 1
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
NOVOl 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA,
No. 16-30209
Plaintiff - Appellee,
B.C. No. l:14-cr-00109-EJL-l
U.S. District Court for Idaho, Boise
V.
MICHAEL MINAS,
MANDATE
Defendant - Appellant.
The judgment of this Court, entered September 14, 2017, takes effect this
date.
This constitutes the formal mandate of this Court issued pursuant to Rule
41(a) of the Federal Rules of Appellate Procedure.
FOR THE COURT:
MOLLY C. DWYER
CLERK OF COURT
By: Craig Westbrooke
Deputy Clerk
Ninth Circuit Rule 27-7
D-1
APPENDIX E
APPENDIX E
INSTRUCTION NO.
The practice ofmedicine in Idaho consists ofan evaluation, diagnosis and treatment of
and/or prescription for aphysical condition. Idaho Code §54-1803.
E-1
00417
APPENDIX F
APPENDIX F
1521
1
ALL COUNSEL;
Thank you, Your Honor.
2
MR. MALONEY:
I think we might be ready on the
3
instructions.
4
THE COURT:
5
MR. MALONEY:
I'm not.
Fair enough.
(Recess taken from 11:10 a.m. to 11:25 a.m.)
6
THE COURT:
7
It is my understanding. Counsel, that you
8
have had an opportunity to review the Court's proposed
9
instructions as well as the verdict form.
Does the Government have any objection to the Court's
10
11
proposed instructions?
12
MS. WARD:
13
have any objection.
No, Your Honor, the Government does not
14
THE COURT:
15
give a submitted instruction?
16
MS. WARD:
Not that the Government submitted. Your
THE COURT:
Any objection to the proposed verdict
20
MS. WARD:
No,
21
THE COURT:
Mr. Arkoosh, you have had an opportunity
17
Honor,
18
19
22
23
Any objection to the Court's failure to
no.
form?
Your Honor.
to review the Court's proposed instructions?
MR. ARKOOSH:
I have. Your Honor.
24
objection to the proposed instructions.
25
absence of our proposed instruction.
F-1
We have no
We do object to the
The practice of medicine
00063
1522
1
in Idaho is defined by Idaho Code 54-1803.
2
that if one of the issues in the case is the legitimate practice
3
of medicine — or legitimate medical purpose, we believe that
4
the jury should be told what the practice of medicine is.
5
think you have heard the argument before. Your Honor.
And I
We have no objection to the verdict form.
6
THE COURT:
7
Thank you.
In response to your objection, the Court has had an
8
9
It is our feeling
opportunity to review the recjuested Idaho statute as well as the
10
relevant case law.
11
licensing definition of the practice of medicine in a jury
12
instruction would be confusing and possibly misleading if given
13
in a
14
The Court finds the inclusion of the Idaho
criminal case.
Under Feingold, the Government must prove the Defendant
15
intentionally distributed controlled substances outside the
16
usual course of professional conduct and without a legitimate
17
medical purpose.
18
"the usual course of professional conduct, end quote, nor does
19
it define, quote, "legitimate medical purpose."
The Idaho statute does not define in quote
20
Instead, the medical experts have testified as to the
21
applicable usual course of professional conduct in the community
22
for the treatment of pain and prescription of controlled
23
substances for a legitimate medical purpose.
24
standards to be considered by the jury in this case.
25
These are the
This is consistent with the holding in Gonzales vs. Oregon,
F-2
00064
APPENDIX G
APPENDIX G
12/27/2017
Section 54-1803 - Idaho State Legislature
^
Idaho Statutes
TITLE
54
PROFESSIONS, VOCATIONS, AND BUSINESSES
CHAPTER
18
PHYSICIANS AND SURGEONS
54-1803.
DEFINITIONS.
(I) The "practice of medicine" means:
(a) To investigate, diagnose, treat, correct or prescribe for any
human disease, ailment, injury, infirmity, deformity or other
condition, physical or mental, by any means or instrumentality;
(b)
To apply principles or techniques of medical science in the
prevention of any of the conditions listed in paragraph
(a)
of
this subsection; or
(c)
To offer,
undertake,
attempt to do or hold oneself out as
able to do any of the acts described in paragraphs (a) and (b) of
this
subsection.
(2)
The word "board" means the state board of medicine.
(3)
The term "physician" means any person who holds a license to
practice medicine and surgery, osteopathic medicine and surgery, or
osteopathic medicine, provided further, that others authorized by law
to practice any of the healing arts shall not be considered physicians
for the purposes of this chapter.
(4)
"Alternate supervising physician" means
registered
with
the
board
as
set
forth
in
a
board
physician who
is
rule
is
and
who
responsible
for
supervising
a
physician
assistant
or
graduate
physician assistant in the temporary absence of the supervising
physician.
(5)
"Supervising physician" means a physician who is registered
with the board as set forth in board rule and who is responsible for
the direction and supervision of the activities of and patient
services provided by a physician assistant or graduate physician
assistant.
(6)
A "license to practice medicine and surgery" means a license
issued by the board to a person who has graduated from an acceptable
school of medicine and who has fulfilled the licensing requirements of
this chapter.
(7)
A "license to practice osteopathic medicine and surgery"
means a license issued by the board to a person who either graduated
from an acceptable osteopathic school of medicine subsequent to
January 1, 1963, or who has been licensed by endorsement of a license
issued by another state where a composite examining board exists and
where physicians
licensed to practice medicine and surgery and
osteopathic physicians take the same examination and hold equal
licenses,
and who
has
fulfilled
the
licensing
requirements
of
this
chapter.
(8)
A "license to practice osteopathic medicine" means a license
issued by the state board of medicine to a person who graduated from
an acceptable osteopathic school of medicine and who prior to January
1, 1963, has fulfilled the licensing requirements of this chapter.
(9)
The word "person," the word "he" and the word "his" mean a
natural person.
(10) An "acceptable school of medicine" means any school of
medicine or school of osteopathic medicine that meets the standards or
requirements of a national medical school accrediting organization
acceptable to the board.
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12/27/2017
Section 54-1803-Idaho State Legislature
(11) The word "extern" means a bona fide student enrolled in an
acceptable school of medicine who has not received his degree.
(12) The word "intern" or "resident" means any person who has
completed a course of study at an acceptable school of medicine and
who is enrolled in a postgraduate medical training program.
(13)
The term "physician assistant" means
any person who is a
graduate of an acceptable training program and who is qualified by
specialized education, training, experience and personal character and
who has been licensed by the board to render patient services under
the direction of a supervising and alternate supervising physician.
Nothing in this chapter shall be construed to authorize physician
assistants to perform those specific functions and duties specifically
delegated by law to those persons licensed as pharmacists under
chapter ll_j, title 54. Idaho Code, as dentists or dental hygienists
under chapter 9. title 54. Idaho Code, or as optometrists under
chapter 15.
t i t l e 54.
Idaho Code.
(14) "Graduate physician assistant" means a person who is a
graduate of an approved program for the education and training of
physician assistants and who meets all of the requirements in this
chapter for licensure,
but who:
(a)
Has not yet taken and passed the certification examination
and who has been authorized by the board to render patient
services under the direction of a supervising physician for a
period of six (6) months; or
(b)
Has passed the certification examination but who has not yet
obtained
a
college
baccalaureate
degree
and
who
has
been
authorized by the board to render patient services under the
direction of a supervising physician for a period of not more than
five (5) years.
History:
[54-1803, added 1977, ch. 199, sec. 4, p. 537;
sec. 1, p. 659.; am. 2010, ch. 89, sec. 1, p. 170.]
am.
1998,
ch.
177,
How current is this law?
Search the Idaho Statutes and Constitution
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APPENDIX H
APPENDIX H
1522
1
in Idaho is defined by Idaho Code 54-1803.
2
that if one of the issues in the case is the legitimate practice
3
of medicine — or legitimate medical purpose, we believe that
4
the jury should be told what the practice of medicine is.
5
think you have heard the argument before. Your Honor.
And I
We have no objection to the verdict form.
6
THE COURT:
7
Thank you.
In response to your objection, the Court has had an
8
9
It is our feeling
opportunity to review the requested Idaho statute as well as the
10
relevant case law.
11
licensing definition of the practice of medicine in a jury
12
instruction would be confusing and possibly misleading if given
13
in a
14
The Court finds the inclusion of the Idaho
criminal case.
Under Feingold, the Government must prove the Defendant
15
intentionally distributed controlled substances outside the
16
usual course of professional conduct and without a legitimate
17
medical purpose.
18
"the usual course of professional conduct, end quote, nor does
19
it define, quote, "legitimate medical purpose."
The Idaho statute does not define in quote
20
Instead, the medical experts have testified as to the
21
applicable usual course of professional conduct in the community
22
for the treatment of pain and prescription of controlled
23
substances for a legitimate medical purpose.
24
standards to be considered by the jury in this case.
25
These are the
This is consistent with the holding in Gonzales vs. Oregon,
H-1
00064
1523
1
546 U.S. 243, 2006.
2
Objection noted and denied.
3
MR. ARKOOSH;
4
THE COURT;
5
Thank you. Your Honor.
And I you indicated you do not have any
objection to the Court's verdict form as well?
6
MR. ARKOOSH:
7
THE COURT:
We do not.
Counsel, I want to bring to your attention
8
that in the instructions — we get down to Instruction No. 34,
9
and you note there are a number of charts that are included
10
there.
I think the direction probably from the Ninth Circuit as
11
well as other courts is that the Court technically is to read
12
every one of those lines.
What I am suggesting and asking, I guess, is if counsel
13
14
have any objection to the Court just bringing those to the
15
attention of the jury without reading every line.
MR. ARKOOSH:
16
17
ask to be saved from that. Your Honor.
MS. WARD:
18
19
We would not only stipulate, we would
Honor.
We have an all-around agreement then. Your
The Government would also stipulate to that.
THE COURT:
20
Thank you.
I think it just causes the jury to turn
21
off.
22
after a period of time, and I think it is counterproductive.
23
But I am going to just ask, in the exercise of caution.
24
25
It is just so repetitious that they just don't listen
Doctor, if you also consent as well.
THE DEFENDANT:
I
do.
H-2
00065
APPENDIX I
APPENDIX I
Case l:14-cr-00109-EJL Document 269 Filed 09/08/16 Page 1 of 7
IN TEE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
UNITED STATES OF AMERICA,
Case No. 1:14-cr-00109-EJL
Plaintiff,
ORDER
V.
MICHAEL MINAS,
Defendant.
Pending before the Court in the above-entitled matter are Defendant Michael
Minas' Motion for Post-Verdict Judgment ofAcquittal (Dkt. 219), Motion Re: Juror
Interviews (Dkt. 248), and Motion for Leave to File Excess Pages (Dkt. 263). Having
fully reviewed the record, the Court finds that the facts and legal arguments are
adequately presented in the briefs and record. Accordingly, in the interest of avoiding
further delay, and because the Court conclusively finds that the decisional process would
not be significantly aided by oral argument, the Court will decide this matter without oral
argument.
Factual Background
Following a jury trial in this matter, Minas was found guilty of 80 counts of
distributing a controlled substance in violation of 21 U.S.C. § 841. Minas was found not
guilty on 59 counts and the Government dismissed Counts 46-52 prior to the jury
ORDER - Page 1
M
Case l:14-cr-00109-EJL Document 269 Filed 09/08/16 Page 2 of 7
deliberating. The jury deliberated for five days. The Court previously denied Defendant's
Motion for Acquittal during the trial and he has now renewed his motion post-Judgment.
Defendant claims the jury verdict is not supported by the evidence and the jury
determined the Defendant was guilty based on a malpractice standard, not the criminal
standard set forth inthe Jury Instructions. The Government maintains the juryhad
sufficient evidence to convict the Defendant on the criminal standard and the motion
should be denied.
Motion for Post-Verdict Judgment of Acquittal
Pursuant to Rule 29, a motion for acquittal is reviewed for sufficiency ofthe
evidence and the court views the evidence in a light most favorable to the Governmentto
determine if the evidence submitted would allow any rational trier of fact to find the
essential elements of the crime beyond a reasonable doubt. UnitedStates v. Graf, 610
F.3d 1148, 1166 (9th Cir. 2010) (quoting United States v. Stoddard, 150 F.3d 1140, 1144
(9th Cir. 1998)).
The substantive jury instruction was approved by the parties. Consistent with
UnitedStates v. Feingold, 454 F.3d 1001 (9th Cir. 2006), in order for the jury to convict,
the jury was required to find beyond a reasonable doubt each of the following elements
for each count:
ORDER - Page 2
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Case l:14-cr-00l09-EJL Document 269 Filed 09/08/16 Page 3 of 7
First, onor about the dates set forth inthe chart below, the defendant
Michael Minas knowingly and intentionally distributed the specific
controlled substance and quantity of the controlled substance set forth on
the chart for each count;
Second, for each count, the defendant knew that the distribution ofthe
controlled substance was outside the usual course ofprofessional practice
and without a legitimate medical purpose; and
Third, for each count, the defendant acted with intent to distribute the
controlled substance and with intent to distribute the controlled substance
outside the usual course of professional practice and without a legitimate
medical purpose.
Jury Instruction 34 (in part), Dkt. 217.
Defendant argues the record does not support that a reasonable jury could find the
prescriptions were outsidethe usual professional practice and for no legitimate medical
purposes when witnesses testified the prescriptions were to treat pain and it was
undisputed that oxycodone is prescribed as pain medication. The Courtrespectfully
disagrees.
While it is possible to cite portions ofthe record wherein witnesses agreed they
were in pain or that the use of opioid prescriptions is within the professional practice and
for a legitimate medical purpose when prescribed to treat pain, there was also sufficient
evidence presented that the prescriptions identified in the Second Superseding Indictment
were intentionally issued by Minas were not within the usual course ofprofessional
practice and were not for a legitimatemedical purpose. The Court must consider all the
evidence submitted at trial and view such evidence in a light most favorable to the
ORDER - Page 3
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Case l:14-cr-00109-EJL Document 269 Filed 09/08/16 Page 4 of 7
Government in determining whether there was sufficient evidence for a the jury to have
returned the verdicts of guilty
The jury did not convict Minas for the prescriptions he issued for the undercover
officers orfor the felons who testified they were also distributing oxycodone. The jury
did not convict Minas ofthe first prescription hewrote for each ofthe other patients, but
did convict Minas for the prescriptions he refilled after the first visit for these patients.
This is not an inconsistent verdict. The evidence certainly could lead rational jurors to
concludethat Minas acted within the usual course ofprofessional practice and for a
legitimate medical purpose for thefirst officevisit for these patients when he
intentionally distributed controlled substances. The jury observed the differences in how
Minas dealtwith the undercover agents on their first officevisit as compared to follow up
visits. Additionally, the patients testified as to Minas' conduct over the course ofthe time
he was treating them.
The Court finds there was sufficient evidence presented that a reasonable jury
could conclude that Minas intentionally failed to act within the usual course of
professional practice and without a legitimate medical purpose when he intentionally
renewed and/or increased the prescriptions without inquiry or consideration of further
medical testing, review ofprescription histories, discussion ofthe pain contract, failed to
keep medical records, trusting all excuses given by a patient, increasing the dosages so far
beyond the standard that an expert determined he was lucky his patients were still alive.
ORDER - Page 4
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Minas argues this isjustmalpractice and does not rise to criminal liability. The
Court disagrees. There was a battle ofexperts inthis case. The record supports a
reasonable jury could find the Government experts more credible than the defense experts
when they testified there would be "nolegitimate medical purpose" for prescribing the
this type and quantity of pain medication to the identified patients that thejury returned
guilty verdicts on.
This experttestimony combined with the testimony of the patients who had noted
addiction problems in their medical files or medical conditions that did not support the
prescribed dosages supports a lack of legitimate medical purpose to for the prescriptions.
Minas admitted in his interview by investigators (that was played for the jury) that he
knew 40 to 50% ofhis patients were drug seekingpatients that did not present a
legitimate medical need for prescriptions for controlled substances.
When this expert testimony is combined with the factual testimony regarding
Minas' change in his medical practice, his conduct during the office visits, there is
sufficient evidence for a reasonable jury to find the Government proved beyond a
reasonable doubt all elements for the criminal standard for illegal drug distribution by
Minas in this case.
The Court is mindful that there was also evidence presented that the prescriptions
were within the usual course of professional practice and for a legitimate medical
purpose. But it was up to the jury to consider all the evidence and to weigh the credibility
of the witnesses. The record is clear there was "sufficient evidence" presented for a jury
ORDER - Page 5
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to find the Defendant guilty beyond a reasonable doubt on the 80 counts of conviction
andthat thejury did not apply a malpractice standard, but the criminal standard set forth
inthe jury instructions. For these reasons, the motion for acquittal must be denied.
Motion for Juror Interviews
Defendant previously filed a motion regarding alleged improper influence on a
juror. The Court conducted an inquiry and concluded that any improper influence on the
identifiedjuror occurred after ywry deliberations had concluded. The Court finds there is
no need for fiirther inquiry of the otherjurors to confirm what the Courthas already
determined occurred regarding the improper influence allegations. Moreover, the Ninth
Circuit discourages post-verdict interviews ofjurors. Traver v. Meshriy, 627 F.2d 934,
941 (9th Cir. 1980). In this case it appears, the Defendant is merely seeking to inquire
about confidentialjury deliberations and this is not proper. The request to conduct further
have contact with and interview the jurors in this matter is denied.
Motion for Leave to File Excess Pages
Defendant seeks leave to file overlength briefing regarding sentencing in this
matter. For good cause shown, this motion is granted and the excess pages shall be
considered by the Court.
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Case l;14-cr-00109-EJL Document 269 Filed 09/08/16 Page 7 of 7
Order
IT IS ORDERED:
Defendant Michael Minas' Motion for Post-Verdict Judgment ofAcquittal
(Dkt.219) is DENIED.
Defendant's Motion Re: Juror Interviews (Dkt. 248) is DENIED.
Defendant's Motion for Leave to File Excess Pages (Dkt. 263) is
GRANTED.
DATED: September 8, 2016
tteflomhle Edward J. Lodge
U. S. District Judge
ORDER - Page 7
ATTACHMENT 2
Case l:14-cr-00109-EJL Document 82 Filed 12/08/15 Page 1 of 2
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
UNITED STATES OF AMERICA,
Case No. 1:14-cr-OO 109-EJL
Plaintiff
ORDER
vs.
MICHAEL MINAS,
Defendant,
The Court has before it a Motion to Withdraw and for Appointment of Substitute
Counsel, filed by current defense counsel. (Dkt. 80). Defense counsel represents that he
has an irreconcilable conflict with his schedule that prevents him from representing
defendant Dr. Michael Minas ("Dr. Minas")? and sets forth the basis for this claim in a
separately filed affidavit. (Dkt. 81.)
Dr. Minas is charged with one-hundred and twelve (112) counts of Distribution of
a Controlled Substance. (Dkt. 26.) The trial in this matter is currently set to begin on
February 16, 2016.
A trial court's decision to release counsel is an exercise of discretion. United
States V. Williams, 717 F.2d 473,475 (9th Cir. 1983) (citing Glavin v. United States, 396
F.2d 725, 726 (9th Cir. 1968)). Local Criminal Rule 44.1(b) states that "[a]n attorney
who has appeared for a defendant may thereafter withdraw only upon notice to the
defendant and all parties to the case and after order of the court finding good cause exists
Case l:14-cr-00109-EJL Document 82
Filed 12/08/15 Page 2 of 2
and granting leave to withdraw." Pursuant to the local rule, the attorney is required to
continue to represent the defendant unless leave to withdraw is granted by the court. See
Local Criminal rule 44.1(b). The Court "may, in the interests ofjustice, substitute one
appointed counsel for another at any stage of the proceedings." 18 U.S.C. § 3006A(c).
The Court has reviewed the Motion to Withdraw and supporting affidavit and,
based on the representations made therein, finds it necessary to grant the Motion and
order that new CJA counsel be appointed. It appears defense counsel cannot adequately
represent Dr. Minas in light of his current schedule. The Court also finds Dr. Minas
financially qualifies for appointment of CJA counsel.
ORDER
NOW THEREFORE IT IS HEREBY ORDERED that the Motion (Dkt. 80) is
GRANTED and current defense counsel, Trent Marcus, is allowed to withdraw as
attorney of record for Dr. Minas. Under the direction of the Clerk of the Court, Thomas
Arkoosh is appointed as new CJA counsel to represent Dr. Minas.
-O
^
' O.
DATED: December 8, 2015
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.