Petition for Writ of Certiorari — Masoud Bamdad, Petitioner v. United States

No.

3n Z~e

'upreme Court of the Entteb Otateo

MASOUD BAMDAD,

Petitioner,

VS.

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

MAsouD BAMDAD

#47237-112

Pro Se Representation

FMC-FoRT WORTH

P.O. Box 15330

Fort Worth, TX 76119

1

QUESTIONS PRESENTED FOR REVIEW

Should a habeas proceedings court adjudicate

all claims of a habeas petitioner before making its final

judgment and closing the case, or otherwise such judgment is invalid and does not end the action pursuant

to Fed.R.Civ.P. 54(b)?

Does a defective indictment result in a court

losing its jurisdiction over a criminal defendant?

Whether due process demands government

agents follow their own agency policy and procedures

during their investigation stage.

Where there is no evidence of interstate commerce violations in a case of a physician who was

charged and convicted of distribution of controlled substances, while he was practicing legitimate pain management based on his licensing agency guidelines, do

federal authorities have jurisdiction over such a case?

11

LIST OF PARTIES

All parties to the proceeding are identified in the

caption of the case.

111

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW........i

LIST OF PARTIES ..............................................ii

TABLE OF CONTENTS ......................................iv

TABLE OF AUTHORITIES.................................v

PETITION FOR WRIT OF CERTIORARI...........1

OPINIONBELOW...............................................1

.

JURISDICTION................................................... 1

STATUTES, ORDINANCES AND REGULATIONS

INVOLVED.......................................................2

INTRODUCTION ................................................3

STATEMENT OF THE CASE..............................4

SUMMARY OF BAMDAD'S CRIMINAL

CONVICTION..................................................6

14

REASONS FOR GRANTING THE PETITION

The Ninth Circuit and District Court of

the Central District of California are reluctant to fulfill their duties .....................14

This Case asks an important question

about when a Physician should be prosecuted by the federal authorities ................17

CONCLUSION.....................................................24

iv

TABLE OF CONTENTS

Continued

-

Page

APPENDIX

APPENDIX A: Opinion of the Court Below.....App. 1

APPENDIX B: District Court's Judgment on

Bamdad's Claims...............................................App. 3

APPENDIX C: Petitioner's Superseding Indictment................................................................ App. 30

APPENDIX D: Denial of Reconsideration of the

Court Below ....................................................App. 36

APPENDIX E: Chapter 64 of the DEA Guidelines................................................................App. 37

APPENDIX F: Bamdad's letter to the trial court,

approximately 50 days before the trial..........App. 41

V

TABLE OF AUTHORITIES

Page

CASES

Barefoot v. Estelle, 463 U.S. 880 (1983)......................16

Buck v. Davis, 560 U.S.

_,

197 L.Ed.2d 1 (2017)........15

Burrage v. United States, 134 S.Ct. 881 (2014) ..8, 9, 13

. .

Gonzales v. Oregon, 546 U.S. 243 (2006) ........18, 19, 20

Miller-El v. Cockrell, 537 U.S. 322 (2003).............15, 16

Slack v. McDaniel, 529 U.S. 473 (2000)......................16

Southern Union Co. v. United States, 132 S.Ct.

2344(2012) .............................................................. 14

United States v. Chube, 538 F.3d 693 (7th Cir.

2008) ........................................................................20

United States v. Feingold, 454 F.3d 1001 (9th Cir.

2006) ..................................................................19,20

United States v. McIver, 470 F.3d 550 (4th Cir.

2006)........................................................................20

United States v. Moore, 423 U.S. 122 (1975) ........17, 18

United States v. Wexler, 522 F.3d 194 (2d Cir.

2008) ........................................................................20

STATUTORY AUTHORITY

18 U.S.C. §2510-20 ......................................................7

21U.S.C.801 .............................................................18

21 U.S.C. §802 ...............................................................2

21 U.S.C. §841 .....................................................2, 8, 19

vi

TABLE OF AUTHORITIES

Continued

-

Page

28 U.S.C. §1254(1) ......................................................... 2

28 U.S.C. §2255 ...................................................passim

21 C.F.R. §1306.04 ........................................................2

CONSTITUTIONAL AUTHORITY

Fourth Amendment to the U.S. Constitution.....passim

Fifth Amendment to the U.S. Constitution........passim

Sixth Amendment to the U.S. Constitution....... passim

PROCEDURAL RULES

Federal Rule of Civil Procedure 54(b)............2, 5, 6, 14

Federal Rule of Civil Procedure 59(e)....................6, 14

Federal Rule of Civil Procedure 60(b)....................5, 14

S. Ct. R. 10(a) ................................................................3

OTHER AUTHORITY

Amer. Acad. of Family Physicians, Pain Management and Opiate Abuse:A Public Health Concern (Position Paper/Executive Summary) (Aug. 2,

2013) ........................................................................22

Cris Barrish, Crackdown on Painkiller Epidemic

Hurts Legitimate Patients, USA Today, Feb. 27,

2012 .........................................................................22

v.ii

TABLE OF AUTHORITIES

-

Continued

Page

Harvey Silvergate, When Treating Pain Brings

a Criminal Indictment, The Wall Street Journal, June 13-14, 2015 ..............................................23

1

3hi Qe

oupreme. Court of the Mutteb btateo

PETITION FOR WRIT OF CERTIORARI

Petitioner Masoud Bamdad respectfully prays

that a writ of certiorari be issued to review the judgment below.

OPINION BELOW

The opinion of the United States Court of Appeals

for the Ninth Circuit appears in Appendix A to this

Petition. The Order denying the rehearing and en banc

hearing is also attached as part of Appendix D. As

far as the Petitioner is aware, the two opinions are

unpublished. The District Court's order is attached as

Appendix B.

JURISDICTION

On August 3, 2017, a two-judge panel of the Ninth

Circuit Court of Appeals entered its opinion. Appendix

A. Petitioner Bamdad filed a Petition for Panel Rehearing, or alternatively, for En Banc Rehearing. This Petition was denied on September 22, 2017 by another twojudge panel. Appendix D.

2

This Court has jurisdiction under 28 U.S.C.

§1254(l).

STATUTES, ORDINANCES

AND REGULATIONS INVOLVED

"Except as authorized by this subchapter, it shall

be unlawful for any person knowingly or intentionally

to manufacture, distribute, or dispense, or possess

with intent to manufacture, distribute, or dispense, a

controlled substance. . . ." 21 U.S.C. §841(a)(1).

"A prescription for a controlled substance to be effective must be issued for a legitimate medical purpose

by an individual practitioner acting in the usual course

of his professional practice." 21 C.F.R. §1306.04.

"The term 'practitioner' means a Physician . . or

Other person licensed, registered, or otherwise permitted, by the United States or the jurisdiction in which

he practices. . . to distribute, dispense,. . . , administer,

or use . a controlled substance in the course of professional practice. . . ." 21 U.S.C. §802(21).

.

..

"When an action presents more than one claim for

relief— whether a claim, counterclaim, cross claim. . .

Otherwise, any order or other decision, however desig.

nated, that adjudicates fewer than all the claims

.

.

does not end the action as to any of the claims.

Federal Rule of Civil Procedure 54(b).

..

"DEA policy prohibits Diversion Investigators

from any kind of undercover and surveillance activities

3

in the cases of registered practitioners." Chapter 64;

Subchapter 6411.2 of the DEA procedures; Appendix

E.

INTRODUCTION

This Case is a clear example of where the lower

courts departed from the acceptable usual course ofjudicial proceedings. Therefore, this Court's exercise of

its supervisory power under Supreme Court Rule 10(a)

is required in aid of its appellate jurisdiction. Petitioner seeks to correct this manifest injustice of conflicting application of controlling law.

This Case was originally submitted for filing in

this Court in December 2017 with attached opinion/

order of the Ninth Circuit Court of Appeals (appeal and

rehearing opinions). On January 2, 2018, the Clerk of

this Court sent a letter to Petitioner Masoud Bamdad

that he needed to send the judgment of the district

court as well.

On February 26, 2018, Petitioner Bamdad submitted the requested district court's judgment (attached

as Appendix B). On April 30, 2018, Bamdad, while

waiting to receive this Court's docket number, received

a letter from the Clerk's office that because he had previously submitted other petitions for issuance of writ

of certiorari in forma pauperis, the Court decided that

it would not accept any more petitions under in forma

pauperis status. He also needed to file his petitions under Rule 38(a) in compliance with Rule 33.1.

ru

After some communications with the Clerk's

office, on August 1, 2018, Bamdad was able to talk to

Mr. Jacob C. Traverse on telephone. Mr. Traverse

agreed to give Bamdad another 60 days from the above

date to resubmit his petition under the above said

rules through a printing company based on this

Court's Order.

In this instant Petition, Bamdad combined his

original petition with its supplement, which was submitted on February 26, 2018, in order to provide the

Court the requested judgment of the district court.

STATEMENT OF THE CASE

Petitioner Masoud Bamdad, M.D. (hereinafter

"Bamdad") is a 64-year-old U.S. Citizen, and former

practicing physician and surgeon from the Los Angeles

area. Bamdad has been incarcerated by federal authorities for about 10 years against the rule of law, Constitution and its civil rights guarantees. Based on the

precedents, the district court of the Central District of

California, which convicted and sentenced him, does

not have jurisdiction over the subject matter nor petitioner. Bamdad has remained in a federal prison, as a

result of ineffectiveness of his trial and appellate lawyers, who did not raise or object to the Government's

case in a timely manner.

After the direct appeal, Bamdad started to study

the law and facts of his case, he understood the injustice in which he had become entrapped. He filed a

5

timely §2255 motion for habeas relief in the year 2012.

The district judge, Judge Wu, misinterpreted the

constitutional law under the Fourth, Fifth, and Sixth

Amendments, then plainly refused to adjudicate some

of Bamdad's other claims in his motion. These claims

have resulted in habeas relief in similar cases. The

Ninth Circuit was also reluctant to issue a Certificate

of Appealability ("COX'), in order to rectify Bamdad's

meritorious claims. It has become a silent observer of

the district court's actions and inactions. There are at

least four claims of relief on §2255 proceedings, which

as of today remain unaddressed and untouched by the

courts.

Bamdad's original §2255 motion for habeas relief

was dismissed by the district court, approximately a

year after its filing in June 2013. Bamdad tried to obtain a COA from the district court or the Ninth Circuit

without success. This Court also declined to issue a

writ of certiorari. In the following year Bamdad moved

to recuse his trial judge and filed simultaneously a

motion under Fed.R.Civ.P. 60(b), to reopen his §2255

motion, and at least obtain adjudication on his Unaddressed claims, with no success. The Ninth Circuit

and this Court again declined to review his claims.

In July 2016, Bamdad filed another motion under

Rule 54(b) of Federal Rules of Civil Procedure. There,

Bamdad claimed that because the district court never

adjudicated some of his claims in his §2255 motion, the

final judgment in habeas proceedings is not complete,

and therefore, it should be void under Rule 60(b)(4),

and the district court should reconsider its judgment

with addressing the unadjudicated claims. The district

Di

court ordered the Government to respond to Bamdad's

claims. The Government sidestepped the claims, and

only claimed that those claims are old, and the district

court should dismiss Bamdad's Rule 54(b) motion. The

district court, without addressing the unadjudicated

claims, incorrectly claimed that it had already adjudicated those claims in its original ruling. Bamdad filed

a motion under Rule 59(e) for reconsideration, and requested that the district court show him where those

claims were adjudicated. The district court was not

able to pin point with specificity where and when it addressed those claims. Had it addressed them based on

the rule of law, Bamdad would have been released from

custody a long time ago.

The Ninth Circuit again declined to issue a COA

and hear Bamdad's meritorious claims. This Petition

for issuance of a writ of certiorari by this Court is the

next step.

Three out of four unadjudicated claims in Barndad's original §2255 motion are constitutional violation claims, and the fourth one is a jurisdictional claim

as a result of his indictment's defect as they will be asserted and briefly explained later.

SUMMARY OF BAMDAD'S

CRIMINAL CONVICTION

Bamdad was practicing general family medicine

and pain management in the San Fernando Valley of

California. His private medical practice was investigated from September 2007 through mid January 2008

7

by three agents of the Drug Enforcement Administration ("DEA"). The four-month, eight visit investigation

was supervised by two agents of the DEA Diversion

Unit.

The agents feigned being patients in pain and in

need of painkillers. They presented credible and verifiable medical complaints; stated, in understandable

manners, physical symptoms that are commonly recognized by medical practitioners as cardinal signs of

credible complaints of medically treatable pain. All

physician treatment responses were wholly consistent

with current "good clinical practices" if not "best clinical practices" and the patient charts so reflect this level

of care. During their consultation and conversation

with Bamdad, they secretly recorded him both in audio

and video. The agents did not reveal their true identity

and obtain Bamdad's consent for their clandestine fishing expedition, nor did they have the required judicial

warrants for waiver of the Fourth and Fifth Amendments, and also eavesdropping and interception under

18 U.S.C. §2510-20. Therefore, their activities and investigation were unconstitutional to begin with.

Bamdad later discovered that the agents also violated their own agency policy and procedures. Chapter

64 of the DEA procedures defines the DEA Diversion

Unit responsibilities and the extent of their investigation. See Appendix E. Subchapters 6411.1 and 6411.2

prohibit agents from any kind of undercover and surveillance activities during the investigation of practice

of any registered practitioner such as Bamdad. During the investigation of Bamdad's practice, the DEA

agents placed Bamdad's practice on constant surveillance and monitoring. They also invasively surveilled

his home and his family, without having any kind of

warrants. Thus, all agents' activities were unconstitutional in violation of Bamdad's rights under the Fourth

and Fifth Amendments.

Further, Bamdad never violated any state or

federal statute to be prosecuted by the federal authorities. His office, his patients, and his license to practice

medicine, were Californian. He was not accused of

insurance or mail fraud; and during his practice, he

did not make even one out of state phone call regarding his practice. In fact, interstate phone lines of his

office were disabled as a cost control measure due to

prior employee abuse of long distance dialing of personal calls. It is still a big puzzle how his alleged

crime, the practice of medicine, became a federal

offense. Moreover, his indictment does not state the

manner and fashion of interstate commerce violation

by Bamdad, a must for any federal indictment. See

Appendix C. Additionally, the forfeiture count (Count

26) of his indictment is defective. It lacks the required

specificity and particularity. His indictment also charged

him with a nonexistent crime, after Burrage v. United

States, 134 S.Ct. 881 (2014), a substantive retroactive

law. Counts 1-19 of the indictment charged Bamdad

with provision (b)(1)(C) of 21 U.S.C. §841. For the above

three reasons, Bamdad's federal indictment is invalid,

and any subsequent conviction based upon such indictment is unconstitutional. This is a jurisdictional issue,

which has never been adjudicated by any federal district court, the Ninth Circuit, or this Court.

Bamdad's trial later hinged on the selected prejudicial excerpts of the unconstitutionally recorded audio

and video tapes, testimonies of the DEA agents, as well

as presentation of prejudicial evidence of one overdosed

patient, Count 19, which Bamdad was not the "but-for"

cause of his death, based on this Court's decision in

Burrage, supra. A patient who took all of his one month

supply of medicine in less than one day, and in addition

received additional licit and illicit substances provided

to him by others. The Coroner concluded his cause of

death a "polymedication" overdose.

Bamdad was convicted on 13 counts of his 25 count

indictment. Each count for writing one prescription for

a legitimate quantity of medication for a legitimate

time span, as his indictment illustrates as well. The

total quantity of prescribing/distributing Oxycodone,

Bamdad was convicted by the jury on all 13 counts

of conviction was 51.5 grams. Out of this amount, 38

grams pertained to the DEA agents' eight visits to his

office, who basically entrapped Bamdad with their unlawful and unconstitutional activities as discussed

above. The jury did not unanimously convict Bamdad

on the death count (Count 19), but were hung. The Government later dismissed that count after swaying the

grand and trial juries' emotions, therefore, no longer

needing that count to obtain a conviction.

On a conviction for prescribing 51.5 grams of Oxycodone to his patients, Bamdad received 25 years (300

months) imprisonment, $1,000,000.00 criminal fine,

and forfeiture of his small medical/dental office, which

he was sharing with his wife, a dentist. This office was

10

not asserted in his indictment. It was, and is still

owned by, an innocent California LLC and family trust.

The prosecutors later placed Bamdad's wife under duress, forcing her to borrow about $250,000.00, which

was paid to the Government, in order to save her own

practice from a government auction. As the honorable

justices of this Court can see, Bamdad's investigation,

conviction, and sentence are the fruits of numerous

constitutional rights and due process violations. His

sentence is astronomical and draconian, in relation to

the amount of the medication for which he was convicted. The advisory sentencing guidelines suggests

between 63-78 months incarceration for distribution of

51.5 grams Oxycodone. Yet the trial judge, by suggestion of the prosecutors, based Bamdad's sentence on

prescribing 4,818 grams of Oxycodone. This was never

asserted in his indictment, nor was he convicted by

a jury for this amount. In fact, Bamdad's sentence

sets a record in the Ninth Circuit for a doctor convicted

of distribution of controlled substances. This was

Olando's plain error under Apprendi and its progeny

such as Allegre.

The following physicians in California and the

Ninth Circuit, who have been convicted and sentenced

for similar conduct. Astonishingly, some of these doctors have been prosecuted by state authorities, and

some by the federal Government. The disparity between federal and state sentences is also unbelievable

and should shock the Court.

Federal prosecuted doctors for instance are: (1) Dr.

Kummerle (Case No. 10-cr-04 17-DMG), interestingly,

11

at the same courthouse with the same prosecutors, received only two months pre-trial detention and probation, after he pled guilty of distribution of controlled

substances, in a case with more serious charges than

Bamdad; (2) Dr. Healy (No. 09-cr-0163-MMR, C.D.Cal.)

(four years imprisonment and $150,000.00 fine); (3) Dr.

Bassam Yassine (No. 07-cr-778-PSG, C.D. Cal.) (37

months imprisonment and $6,500.00 fine); (4) Dr. Odegaard (No. 06-cr-0178-DAE, D. Raw.) (convicted at jury

trial) (five years imprisonment and $12,500.00 fine);

Dr. Davis (No. 00-cr-1132-MMM, C.D. Cal.) 40

months imprisonment, reversed on direct appeal);

Dr. Braun (convicted on 3/5/2007, C.D. Cal.) (70

months imprisonment and $17,500.00 fine); (7) Dr.

Kaplan, 895 F.2d 618 (9th Cir. 1990) (D. Nev.) (five

years unsupervised probation); and (8) Dr. Vu Le (C.D.

Cal.) (convicted on 11/17/2009) (57 months incarceration and $1,500.00 assessment fee).

In comparison with federal convictions and sentences at the same time for similar conduct the other

doctors in state courts received: (1) Dr. Paul Maynard

(convicted on Feb. 15, 2007, and received seven months

incarceration); (2) Nicholas Sasson (Salina, California,

convicted on 10/18/2004, received five years probation

and $1,000.00 fine); (3) Peter Ahles (convicted on

10/05/2006, received six months home detention and

three years probation); (4) Peter Dietrich (Sacramento,

California, convicted on 11/19/2009, received 60 days

suspended sentence in jail, four years probation, 600

hours community service, and $800.00 restitution

fine); (5) Joan Keteschbach (Elk Grove, California, one

12

day jail, three years probation, 120 hours community

service, and $18,204.11 restitution fee); and more recently, Dr. Carlos Estanclian from the Los Angeles area

was convicted on 13 counts by a jury, the same number

of counts of conviction as Bamdad. He was also convicted by the jury for the overdose death of one of his

patients in contrast with Bamdad, who was not found

guilty of any overdose deaths. Dr. Estandian received

five years imprisonment, and only ended up serving

two and a half years in a state prison.

Bamdad's sentence is not even close to any of the

above doctors who were charged and accused of the

same alleged crime, practicing pain management.

The Ninth Circuit affirmed Bamdad's conviction

and sentence on direct appeal, because his ineffective

and incompetent paid appellate lawyer failed to raise

any of the above-mentioned claims. Subsequently,

Bamdad filed a pro se motion for habeas relief under

§2255. The district court, by misconstruing the Fourth,

Fifth, and Sixth Amendments, denied any relief, and in

addition, left some of Bamdad's important claims of relief unaddressed. Of the four claims, three of them are

constitutional and one is jurisdictional. Such claims

resulted in relief of other similar cases during habeas

proceedings. As a matter of fact, as of today no federal

court has chosen to adjudicate Bamdad's claim of relief. The aforementioned claims are:

1. The Jurisdictional Claim of the

defects of Bamdad's indictment regarding its lack of the manner of

13

violation of interstate commerce by

him, and also its defect in the forfeiture Count. It does not have the required particularity and specificity.

Additionally, the indictment charged

Bamdad with a nonexistent crime after Burrage's decision by this Court,

a substantive retroactive law;

The Constitutional Claim of pre-trial

breakdown of communication between Bamdad and his trial lawyer.

Fifty days before the trial, Bamdad

notified the trial court and requested a hearing and the possibility

of a court-appointed counsel. Appendix F. The trial court ignored Barndad's request. This is a serious Sixth

Amendment rights violation, and in

other similar cases resulted in habeas relief;

The Constitutional Due Process

Claim of the violation of the DEA

procedures by its agents during the

investigation of Bamdad's medical

practice, though in addition to that

the agents violated Barndad's rights

under the Fourth and Fifth Amendments, which was misinterpreted by

the district court, but the issue of violating their own policy has never

been adjudicated by the district

court or any other court. This claim

also resulted in habeas relief in other

similar cases; and

14

4. The Constitutional Claim of an unreasonable and unsubstantiated one

million ($1,000,000.00) dollar criminal

fine, which was found by the judge

not the jury, and is in conflict with

this Court's decision in Southern

Union Co. v. United States. Though

this constitutional claim has not resulted in complete habeas relief. Yet

it could waive Bamdad's unlawful

criminal fine.

REASONS FOR GRANTING THE PETITION

A. The Ninth Circuit and District Court of the

Central District of California are reluctant

to fulfill their duties.

For at least the past five years, Bamdad has been

trying to raise his unadjudicated claims, particularly

the above asserted four claims in his habeas proceedings under different provisions of the Federal Rules of

Civil and Criminal Procedures such as Rules 59(e),

60(b), and more recently under Rule 54(b). The district

court wrongly claims that it has already adjudicated

them; the Ninth Circuit has applied wrong standards

for issuing a COA, thus sidestepping Bamdad's claims

of relief.

The four aforementioned claims mirror clear-cut

claims of relief in similar cases. The district court does

not ask itself if it properly, based on the rule of law,

adjudicated Bamdad's claims, then what is the reason

15

that Bamdad has yet to receive habeas relief? Bamdad

appropriately raised the above claims, among the other

claims in his §2255 motion under ineffectiveness of his

trial and appellate lawyers, and raised them in a

timely manner. The trial court either wrongfully

claimed that they were procedurally defaulted, or erroneously claims they were addressed, contrary to the

facts.

The Ninth Circuit incorrectly claims that Barndad's claims are not qualified as constitutional violations. Without going into detail of his claims, it decided

then on their merits. This is an erroneous standard for

issuance of a COA, as this Court recognized in Buck v.

197 L.Ed.2d 1 (2017). Bamdad

Davis, 580 U.S.

plainly raised his claims under the Sixth Amendment

rights, and ineffectiveness of both of his lawyers during

the trial and direct appeal proceedings. Yet, for unknown reasons, the Ninth Circuit does not recognize

Bamdad's claims as a substantial showing of a violation of Bamdad's constitutional rights. The Ninth Circuit sidesteps [the COA] process and first decided the

merits of the appeal, and then, justifying its denial of

a COA based on its adjudication of the actual merits, it

in essence decided the appeal without jurisdiction, and

considering its own precedents. See Miller-El v.

Cockrell, 537 U.S. 322, 336-337 (2003), while at COA

stage, the only question should be whether the applicant has shown that "jurists of reason could disagree

with the district courts resolution of the constitutional

claims or that jurists could conclude the issues presented are adequate to deserve encouragement to

-,

16

proceed further." Id. at 327. The Ninth Circuit

stretches credulity to characterize Bamdad's ineffective assistance of counsel claims as run-of-the-mill.

Bamdad clearly illustrated that a procedural ruling

barring relief in his case itself is debatable among jurists of reason, where the district court falsely admits

that it ruled on unadjudicated claims of relief in Barndad's original §2255 motion, and the Ninth Circuit relies on this admission. See Slack v. McDaniel, 529 U.S.

473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S.

880, 893, n.4 (1983)).

Bamdad, as a criminal defendant and a U.S. citizen, deserves to be heard on all of his claims of relief

in his §2255 motion. The lower courts refuse to execute

their obligations; therefore, this Court's intervention is

required to issue a writ of certiorari and rectify Barndad's unadjudicated claims of relief. As mentioned before, one of the unaddressed claims is a jurisdictional

issue and based on that claim, the federal district court

never had jurisdiction over Bamdad in the first place.

The Ninth Circuit persistently sidesteps that claim,

and has kept stating that Bamdad has not demonstrated substantial showing of his constitutional rights

violation(s) without mentioning anything about the jurisdictional issue.

17

B. This Case asks an important question about

when a Physician should be prosecuted by

the federal authorities.

This Court has never addressed this question: under what circumstances may a medical doctor be

charged federally? All federal statutes related to the

accusation and conviction of Bamdad, are based upon

the notion of an interstate commerce violation. The

Government must demonstrate that a defendant either somehow impacts interstate commerce by crossing a state line during the commission of a crime, or

the instruments of his/her crime, passed across state

borders with intention of committing an offense, in order for a crime to become a federal offense. Federal

prosecutors have a tendency to overreach and charge

medical doctors under the federal statutes ignoring the

fact that these statutes were enacted mainly for illegal

manufacturers, distributors, and high rank drug dealers. They were not intended for a doctor with a small

practice limited to one state. The exceptions being

those involved in sales or insurance and financial

crimes. This Court's intervention is required to draw a

line and terminate the federal prosecutorial abuses in

these types of cases through overreaching under the

guise of a nexus of interstate commerce.

Over the past 40 years, this, Court has only ruled

two times on the issue of prescription of licit controlled

substances by physicians: (1) In United States v. Moore,

423 U.S. 122 (1975), which held "[T]he scheme of the

Controlled Substance Act ("CSA") viewed against the

background of the legislative history reveals an intent

I.J

to limit a registered physician's dispensing authority

to the course of his 'professional practice." Id. at 140.

Dr. Moore in some cases was handing his patients up

to 200 pills of Methadone per day. For that reason, this

Court recognized him as a drug-pusher. Yet the Court

was careful to emphasize that the defendant in that

case had so wantonly ignored the basic protocols of the

medical profession that "he acted as a large-scale

'pusher' - not a physician." The Court further described

§841(a) as prohibiting "the significantly greater offense of acting as a drug 'pusher." Id. at 138. These

statements suggest that the Moore Court based its decision not merely on the fact that the doctor had committed inadvertent or even intentional malpractice,

rather, on the fact that his actions completely betrayed

any semblance of legitimate medical treatment.

This interpretation of Moore was reinforced thirty

years later in the dicta of; (2) Gonzales v. Oregon, 546 U.S.

243 (2006). In explaining that the CSA's prescription

requirement did not authorize the United States Attorney General to bar dispensation/prescription of controlled substances for assisted suicide in the face of a

state medical regime permitting such conduct, this

Court explained:

"The Controlled Substance Act (CSA), 21

U.S.C. §801 et seq., and case law amply support the conclusion that Congress regulates

medical practice insofar as it bars doctors

from using their prescription-writing powers

as a means to engage it illicit drug dealing

and trafficking as conventionally understood.

19

Beyond this, however, the statute manifests

no intent to regulate the practice of medicine

generally."

Gonzales, 546 U.S. at 269-70.

Other than the guidance given in Moore, and limited explanation in Gonzales, there has been no one

right way to convey the governing standards of "legitimate medical purpose" and "in the usual course of...

professional practice," in cases like this Petitioner, who

was practicing pain management based on the Medical

Board of California Guidelines for controlling pain

with opioid based medications. Petitioner never overprescribed any medication to any of his patients even

the undercover DEA agents, as his indictment reveals.

See Appendix C.

• The Ninth Circuit in United States v. Feingold, 454

F.3d 1001, 1011 (9th Cir. 2006), in a case of a homeopathic doctor in Arizona, who wasn't authorize to prescribe controlled substances, yet he was prescribing

Oxycodone, and for unknown reasons, the local pharmacist was filling his prescriptions, held "that it is appropriate in [841 cases] for the jury to consider the

practitioner's behavior against the benchmark of acceptable and accepted medical practice." Noting that a

breach of the medical standard of care, without more,

is not dispositive in a §841 case against a physician.

Dr. Feingold ended up serving a 12 year sentence,

while he was writing scripts which he was not authorized to write, passing them out like candy even to his

house painter. That sentence is less than half of this

20

Petitioner's sentence without fine or forfeiture. Barndad was authorized to write all of the prescriptions at

issue, which he wrote, and as stated before, all his prescriptions were for a legitimate quantity of medication

for a legitimate time span. Petitioner, as a physician

who had accepted the responsibility for the care of a

number of chronic care pain management cases, had a

legal and moral obligation to trust his patients in a

manner appropriate and proportional to their pain

control needs, whether such needs were actual, or as in

the case of the DEA actors, cunningly and convincingly

feigned.

The other Circuits have held that the Government

can present evidence of the standard of medical care to

prove that a doctor is acting without a legitimate medical purpose or outside of the course of usual practice.

See, e.g., United States v. Wexler, 522 F.3d 194, 204 (2d

Cir. 2008) ("While failure to comply with the standard

of care applicable to a medical specialty does not alone

provide a basis for concluding that a physician's activities fall outside the usual course of professional practice, it surely is relevant to that determination.");

United States v. Chube, 538 F.3d 693, 698 (7th Cir.

2008) ("[I]t is impossible sensibly to discuss the question whether a physician was acting outside the usual

course of professional practice and without a legitimate medical purpose without mentioning the usual

standard of care."); United States v. McIver, 470 F.3d

550, 561 (4th Cir. 2006) (upholding expert testimony

regarding standard of care and noting "it is the extent

and severity of departures from the professional norms

21

that underpin a jury's finding of criminal violations.");

Feingold, 454 F.3d at 1011 ("Knowing how doctors generally ought to act is essential for a jury to determine

whether a practitioner has acted not as a doctor, or

even as a bad doctor, but as a 'pusher' whose conduct

is without a legitimate medical justification.").

Astonishingly, all the above cases were adjudicated after this Court decided Gonzales, 546 U.S. 243,

and at 257-258, concluding that the terminologies of

"legitimate medical purpose" and "in the usual course

of. professional practice," are ambiguous, and they

need another day for discussion. Bamdad believes his

case brings that day for this Court to explain these two

terms, and terminate the Circuit Courts' confusion on

these matters, relieving some physicians such as Bamdad, who was practicing legitimate pain management,

and is being ensnared by the federal prosecutors'

agendas, and those who have no medical training, or

understanding its practice. All the accusations against

Bamdad revolved around issues of medical science,

professional judgment, and evolving standards of medical practice.

.

.

During the past two decades, there has been arevolution in the scientific and medical understanding of

pain and its proper treatment.

As a matter of fact, by the 2000s, the nation so was

demanding of pain treatment, such that Congress dedared a "Decade of Pain Control and Research." See

Pub. L. No. 106-386 (Oct. 28, 2000) (designating the

calendar decade beginning January 1, 2001, as the

Decade of Pain Control and Research). Physicians thus

came to appreciate that, more than merely an unpleasant side effect of injury or disease that should be endured, pain is a significant cause of other morbidity.

See Amer. Acad. of Family Physicians, Pain Management and Opiate Abuse:A Public Health Concern (Aug.

2) 2012).

The issue of the proper clinical standard of care for

prescription cases such as Petitioner's, is thus an important issue for this Court to revisit after a forty year

hiatus. Previously, this Court had indicated that the

standard must be so far outside of the norm of professional practice that the physician has become akin to

a drug pusher. But, what is the "norm" and what test

or tests exist in the jurisprudence to assure fair, just

and equitable application of the CSA on a case-by-case

basis? Yet, courts are routinely refusing instructions

containing such language, allowing the Government to

secure convictions based only on evidence amounting

to medical negligence. When this occurs, it has a

chilling effect on the dwindling number of legitimately

practicing physicians who are willing to treat chronic

pain patients. Cris Barrish, Crackdown on Painkiller

Epidemic Hurts Legitimate Patients, USA Today, Feb.

27, 2012. Doctors become concerned about the media

coverage of prescription drug abuse and the tough enforcement actions undertaken against treating physicians. Id. Also, when doctors are stripped of their

licenses or worse, there are collateral consequences to

legitimate patients, who then have a difficult time obtaining proper treatment. Id. Of course or perhaps,

23

there are always some patients who lie in order to obtain narcotics or abuse drugs, even if they have a legitimate medical condition. And this issue sometimes

becomes a puzzle for even seasoned physicians, who

are dealing with legitimate pain issues, because pain

is subjective. Often times a doctor has only his patients' word on whether they are in pain, and the level

and frequency of that pain. This is all in the context of

compassionate care of a patient; not a quasi grand jury

examination of the patient in a physician's office.

See also "When Treating Pain Brings a Criminal

Indictment," by Criminal Defense and Civil-Liberties

Litigator Harvey Silvergate, the Wall Street Journal,

June 13-14, 2015. The author asserted that "the line

between legitimate and illegitimate prescription

as drawn by the Drug Enforcement Administration

(DEA) and the Justice Department is far from clear.

This puts physicians in great legal jeopardy, and too

often leaves their patients to suffer needless agony." It

also invites invidious, selective and vindictive prosecutions such as Petitioner's Case.

-

-

This Court's intervention and advice is necessary

to help stem the tide of opioid hysteria intentionally

directed against legitimate pain management practice.

It would benefit not only this Petitioner and the very

harsh consequences he and his family have suffered,

but pain management practitioners who sometimes do

not have any other tool in the armamentarium except

narcotics. Nationwide, patients are suffering from

chronic pain with no appropriate treatment. Petitioner

Bamdad therefore respectfully requests this Court to

24

grant certiorari in his case to determine a nationwide

standard of care in prescription drug cases such as his.

This is outrageous, cruel and immoral.

CONCLUSION

Accordingly, Petitioner Bamdad respectfully prays

that this Court will grant certiorari to review the decisions of the Ninth Circuit in his case.

Respectfully submitted under penalty of perjury

on this 1st day of October, 2018.

MASOUD BAMDAD, M.D.

#47237-112

Pro Se Representation

FMC-FORT WORTH

P.O. Box 15330

Fort Worth, TX 76119