Petition for Writ of Certiorari — Donovan Dave Dixon, Petitioner v. United States
Supreme Court briefMay 18, 2020
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No.
In the
Supreme Court of the United States
DONOVAN DAVE DIXON,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
-----------------------------------------ON PETITION FOR WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
------------------------------------------
PETITION FOR WRIT OF CERTIORARI
------------------------------------------
Raymond C. Tarlton
Counsel of Record
209 Fayetteville Street
Suite 105
Raleigh, NC 27601
(919) 948-6464
rtarlton@tarltonpolk.com
Counsel for Petitioner
GibsonMoore Appellate Services, LLC
206 East Cary Street ♦ Richmond, VA 23219
804-249-7770 ♦ www.gibsonmoore.net
i
QUESTION PRESENTED
Because prescribing controlled substances is a
quintessential part of a physician’s professional life,
when those controlled substances have medical uses,
the Controlled Substances Act (“CSA”) empowers
physicians to do so. But that authority has limits.
Specifically, the CSA “bars doctors from using their
prescription-writing powers as a means to engage in
illicit drug dealing and trafficking as conventionally
understood.” Gonzalez v. Oregon, 546 U.S. 243, 270
(2006). A doctor, therefore, is criminally liable for
unlawfully distributing a controlled substance when
acting as “a drug ‘pusher,’” and “not as a physician.”
United States v. Moore, 423 U.S. 122, 126, 143 (1975).
The practice of instructing juries in the Fourth
Circuit, however, strips the CSA, as applied to
physicians, of any meaningful mens rea component
and blurs this clear line between criminal and merely
unprofessional or negligent conduct, and allows
medical practitioners to be convicted of felony drug
trafficking based on malpractice or other disputes
about the standard of care.
The question presented is:
Whether juries must be instructed that the
government must prove that a physician acted with
the mens rea of intent as to issuing a prescription
outside the usual course of professional practice or not
for a legitimate medical purpose and that that action
and intent must mean that a physician has
abandoned medical practice and engaged in “illicit
drug dealing and trafficking as conventionally
understood” in order to prevent a criminal conviction
for malpractice under the CSA?
ii
PARTIES TO THE PROCEEDING
Donovan Dixon, petitioner on review, was the
defendant-appellant below.
The United States of America, respondent on
review, was the appellee below.
iii
RELATED PROCEEDINGS
United States Court of Appeals for the Fourth
Circuit:
United States v. Dixon, No. 18-4936 (4th Cir.
Dec. 20, 2019)
United States District Court for the Eastern
District of North Carolina:
United States v. Dixon, No. 7:16-cr-30-D-1
(E.D.N.C. Aug. 30, 2018).
iv
TABLE OF CONTENTS
Page:
QUESTION PRESENTED .......................................... i
PARTIES TO THE PROCEEDING ........................... ii
RELATED PROCEEDINGS .....................................iii
TABLE OF CONTENTS............................................ iv
TABLE OF AUTHORITIES ..................................... vii
OPINION BELOW ..................................................... 1
JURISDICTION ......................................................... 1
FEDERAL PROVISIONS INVOLVED ...................... 2
STATEMENT OF THE CASE ................................... 2
A. Statutory Background ..................................... 2
B. Procedural History ........................................... 5
1. Dr. Dixon ran a small medical
practice
in
the
rural
and
impoverished area of Robeson
County, North Carolina .............................. 5
2. Consistent with circuit precedent,
the district court failed to give a mens
rea instruction to the jury as to what
the government must prove that a
physician intended when they wrote
prescriptions while allegedly acting
outside the usual course of
professional practice or without a
legitimate medical purpose, or to
otherwise delineate the line between
medical malpractice and criminal
conduct ........................................................ 6
v
3. The Fourth Circuit rejected Dr.
Dixon’s challenge to the jury
instructions ............................................... 10
REASONS FOR GRANTING THE WRIT ............... 11
I. THE
FOURTH
CIRCUIT’S
INSTRUCTIONAL PRACTICE FAILS
TO SET OUT A MENS REA THE
GOVERNMENT MUST PROVE &
LEAVES
JURIES
UNINFORMED
ABOUT THE CLEAR LINE THIS
COURT HAS DRAWN BETWEEN
CIVIL
MALPRACTICE
AND
CRIMINAL LIABILITY RESULTING
FROM
DRUG
DEALING
AS
CONVENTIALLY UNDERSTOOD .............. 11
II. THE FOURTH CIRCUIT’S PRACTICE
DEVOID OF A MENS REA ELEMENT
CRIMINALIZES DISPUTES ABOUT
THE PROPER STANDARD OF CARE ......... 18
III.THE
QUESTION
PRESENTED
ABOUT WHAT THE GOVERNMENT
MUST PROVE TO ESTABLISH A
PRACTITIONER’S
CRIMINAL
LIABILITY
HAS
SIGNIFICANT
CONSEQUENCES FOR MEDICAL
PRACTICE NATIONWIDE ........................... 22
CONCLUSION ......................................................... 26
vi
APPENDIX
Opinion
United States Court of Appeals
For The Fourth Circuit
entered December 20, 2019 ........................... 1a
Judgment
United States Court of Appeals
For The Fourth Circuit
entered December 20, 2019 ........................... 7a
21 CFR 1306.04 ................................................... 8a
21 USCS § 802 ................................................... 10a
21 USCS § 829 ................................................... 43a
21 USCS § 841, Part 1 of 6 ................................ 48a
Excerpts of
Transcript of Trial Proceedings Before
The Honorable James C. Dever, III (Day 4)
on April 16, 2018 .......................................... 67a
vii
TABLE OF AUTHORITIES
Page(s):
Cases:
Arthur Andersen LLP v. United States,
125 S. Ct. 2129 (2005) ......................................... 14
Bond v. United States,
572 U.S. 844 (2014) ............................................. 21
Gonzalez v. Oregon,
546 U.S. 243 (2006) ..................................... passim
Jin Fuey Moy v. United States,
254 U.S. 189 (1920) ............................................. 13
Kelly v. United States,
590 U.S. ___ (2020) .............................................. 20
Linder v. United States,
268 U.S. 5 (1925) ................................................. 13
Maslenjak v. United States,
137 S. Ct. 1918 (2017) ......................................... 20
McDonnell v. United States,
136 S. Ct. 2355 (2016) ......................................... 20
Morissette v. United States,
342 U.S. 246 (1952) ............................................. 14
Rehaif v. United States,
139 S. Ct. 2191, 204 L. Ed. 2d 594 (2019) .......... 14
Staples v. United States,
511 U.S. 60 (1994) ............................................... 14
United States v. Behrman,
258 U.S. 280 (1922) ............................................. 13
United States v. Feingold,
454 F.3d 1001 (9th Cir. 2006) ............................. 15
viii
United States v. Hurwitz,
459 F.3d 463 (4th Cir. 2006) ........................... 4, 17
United States v. Kirk,
584 F.2d 773 (6th Cir. 1978) ............................... 16
United States v. McIver,
470 F.3d 550 (4th Cir. 2006) ............................... 15
United States v. Moore,
423 U.S. 122 (1975) ..................................... passim
United States v. Singh,
54 F.3d 1182 (4th Cir. 1995) ................................. 4
United States v. Smith,
573 F.3d 639 (8th Cir. 2009) ............................... 15
United States v. Tran Trong Cuong,
18 F.3d 1132 (4th Cir. 1994) ............................... 16
United States v. United States Gypsum Co.,
438 U.S. 422 (1978) ............................................. 14
United States v. Volkman,
797 F.3d 377 (6th Cir. 2015) ................................. 4
United States v. X-Citement Video, Inc.
513 U.S. 64 (1994) ............................................... 14
Webb v. United States,
249 U.S. 96 (1919) ............................................... 13
Yates v. United States,
135 S. Ct. 1074 (2015) ......................................... 21
Statutes:
18 U.S.C. § 201(a)(3) ................................................. 21
18 U.S.C. § 229(a)(1) ................................................. 21
18 U.S.C. § 1425(a) ................................................... 20
18 U.S.C. § 1519........................................................ 21
ix
21 U.S.C. § 802............................................................ 2
21 U.S.C. § 802(19) ..................................................... 2
21 U.S.C. § 802(21) ..................................................... 2
21 U.S.C. § 822(b) ....................................................... 2
21 U.S.C. § 829............................................................ 2
21 U.S.C. § 841...................................................... 2, 15
21 U.S.C. § 841(a) ........................................... 3, 12, 15
21 U.S.C. § 841(a)(1) ............................................... 2, 6
21 U.S.C. § 846............................................................ 6
28 U.S.C. § 1254(1) ..................................................... 2
28 U.S.C. § 1291.......................................................... 1
Regulations:
21 C.F.R. § 1306.03 ..................................................... 2
21 C.F.R. § 1306.04 ..................................................... 2
21 C.F.R. § 1306.04(a) ................................................ 3
Other Authorities:
CDC Guideline for Prescribing Opioids for
Chronic Pain – United States, 2016, Morbidity
and Mortality Weekly Report (MMWR),
March 15, 2016 .................................................... 22-23
Centers for Disease Control and Prevention,
et. al., Guideline for Prescribing Opioids for
Chronic Pain, J. Pain & Palliative Care
Pharmacotherapy, 2016, Jun;
Vol. 30(2):138-40 ....................................................... 22
Controlled Substances Act,
H.R. Rep. No. 91-1444 .............................................. 25
x
K. Tate Chambers, A Primer on Investigating
Doctors Who Illegally Prescribe Opioids, 66
U.S. Att’y Bull. (July 2018) ...................................... 24
Kelly K. Dineen & James M. DuBois, Between
A Rock and A Hard Place: Can Physicians
Prescribe Opioids to Treat Pain Adequately
While Avoiding Legal Sanction?, 42 Am. J.L.
& Med. 7, 36 (2016)................................................... 23
Lenny Bernstein, White House opioid
commission calls for wide-ranging changes to
anti-drug policies, Washington Post,
Nov. 1, 2017 .............................................................. 22
Michael Nedelman, Doctors increasingly face
charges for patient overdoses, CNN,
July 31, 2017 ............................................................. 23
U.S. Dep’t of Health and Human Services,
Press Release, HHS Acting Secretary Declares
Public Health Emergency to Address National
Opioid Crisis, Ex. Order 13784
(March 29, 2017) ....................................................... 23
U.S. Dep’t of Justice, Press Release, Attorney
General Sessions Announces Opioid Fraud
and Abuse Detection Unit (Aug. 2, 2017) ................ 24
U.S. Dep’t of Justice, Press Release, Attorney
General Sessions Announces New Prescription
Interdiction and Litigation Task Force
(Feb. 27, 2018)........................................................... 24
1
IN THE
Supreme Court of the United States
_________
No.
_________
DONOVAN DAVE DIXON,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
_________
On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Fourth Circuit
_________
PETITION FOR A WRIT OF CERTIORARI
_________
Donovan Dixon respectfully petitions for a writ of
certiorari to review the judgment of the United States
Court of Appeals for the Fourth Circuit.
OPINION BELOW
The Fourth Circuit’s opinion is unpublished but
available at Pet. App. 3a-4a.
JURISDICTION
The District Court entered on the docket the final
judgment on August 30, 2018. The Fourth Circuit had
jurisdiction pursuant to 28 U.S.C. § 1291 and entered
judgment on December 20, 2019. Pet. App. 7a. On
March 19, 2020, this Court extended deadline to file
petitions for a writ of certiorari by 150 days from the
2
date of the lower court judgment due to the ongoing
public health concerns relating to COVID-19. This
Court has jurisdiction under 28 U.S.C. § 1254(1).
FEDERAL PROVISIONS INVOLVED
The relevant statutory provisions are codified at
21 U.S.C. §§ 802, 829, 841, and 21 C.F.R. § 1306.03,
1306.04, and are set forth fully in the Appendix. See
Pet. App. 8a-66a.
STATEMENT OF THE CASE
A. Statutory Background
Because this is a physician-prescribing case, it has
a unique legal posture under federal drug law.
The Controlled Substances Act (CSA) generally
prohibits any person from dispensing or distributing
a controlled substance. See 21 U.S.C. § 841(a)(1). But
many of the controlled substances covered by the Act
have important medical uses, thus the Act exempts
physicians and other medical “practitioners” from this
prohibition and authorizes them to write prescriptions for certain controlled substances “in the course
of professional practice.” 21 U.S.C. §§ 802(21), 829.
For a physician’s controlled substance prescriptions to be lawful, there are two important conditions.
First, the physician must register with the Attorney General. See 21 U.S.C. §§ 802(19), 822(b); 21
C.F.R. § 1306.03. There is no dispute Dr. Dixon was
lawfully registered.
Second, the physician must be acting as a physician, that is, “in the course of professional practice.”
21 U.S.C. § 802(19). Regulations promulgated by the
Attorney General further provide that to be lawful, a
prescription “must be issued for a legitimate medical
3
purpose by an individual practitioner acting in the
usual course of his professional practice.” 21 C.F.R. §
1306.04(a). The regulation does not define the terms
“legitimate medical purpose” or “usual course of professional practice,” nor does it provide any further explanation about the differences between civil and
criminal liability vis a visa a failure to comply with a
particular standard of care. It lacks an articulation of
the mens rea required to convict a physician for prescribing controlled substances, conduct that is at the
very core of a physician’s responsibilities towards caring for their patients.
This Court has consistently drawn the line between civil and criminal liability. That is, the CSA
“bars doctors from using their prescription writing
powers as a means to engage in illicit drug dealing
and trafficking as conventionally understood,” Gonzalez, v. Oregon, 546 U.S. 243, 270 (2006), and that a
doctor, therefore, is criminally liable for unlawfully
distributing a controlled substance when acting as “a
drug pusher,” and “not as a physician.” United States
v. Moore, 423 U.S. 122, 126, 143 (1975).
The Fourth Circuit employs the “legitimate medical purpose” and usual course of professional practice”
language of § 1306.04(a) when instructing juries
about the elements the government must prove to
convict a physician for unlawfully prescribing (that is,
for a violation of the common drug crime of distribution of a controlled substance under 21 U.S.C. §
841(a)).
The Fourth Circuit’s precedents on jury instructions for applying the CSA to physicians do not contain a mens rea element as to the language from §
1306.04(a) and do not inform juries that conduct akin
4
to civil malpractice is insufficient to sustain a conviction and that acting outside the usual course of professional practice or without a legitimate medical purpose is conduct akin to drug dealing conventionally
understood. See, e.g., United States v. Hurwitz, 459
F.3d 463, 475-77, 479 (4th Cir. 2006); United States v.
Singh, 54 F.3d 1182, 1187 (4th Cir. 1995). Furthermore, the panel in the Fourth Circuit below relied on
other circuit decisions, see United States v. Volkman,
797 F.3d 377, 385-86 (6th Cir. 2015), to determine
that this Court’s decision in Gonzalez “imposed no
new requirements [in jury instructions] to establish a
violation of the CSA.” Pet. App. 3a-4a.
Thus, juries in the Fourth Circuit are instructed,
as the jury in Dr. Dixon’s case was, that there are no
specific guidelines but that a physician is criminally
liable for issuing a prescription for a controlled substance if they determine that prescription “was not for
a legitimate medical purpose or was outside the usual
course of professional medical practice.” Pet. App.
81a. Juries are given a non-binding list of factors
tending to show professional regulation violations
that they may take into consideration in making the
determination of whether the physician’s conduct was
outside the usual course of professional practice or
without a legitimate medical purpose. Id. at 82a.
5
B. Procedural History
1. Dr. Dixon ran a small medical practice in
the rural and impoverished area of Robeson County, North Carolina.
In 1998, Dr. Dixon graduated from medical school
and afterwards completed residencies in family medicine and OB/GYN. (JA 850-51).1 In 2005, Dr. Dixon
served as an Army physician and treated very seriously injured service members. (Id.). He was honorably discharged from the Army and received numerous
awards. (Id.).
In 2011, Dr. Dixon opened his own clinic, focusing
on pain management, in Robeson County, North Carolina, an impoverished rural area outside of the Army
base at Fort Bragg. (Id. at 841.). The North Carolina
Medical Board reprimanded Dr. Dixon in 2014 for
failing to comply with professional regulations relating to the dispensing of pain medications, and, after
another complaint of inappropriate prescribing, in
2015, Dr. Dixon executed a consent order with the
North Carolina Medical Board agreeing not to prescribe controlled substances. (Id. at 842). In fact, Dr.
Dixon stopped practicing medicine in the United
States and moved back to Jamaica, where he was
born. (Id. at 793).
However, in 2016, the government obtained an indictment against Dr. Dixon for his prescribing practices between 2012 and 2015, conduct constituting
professional regulation violations addressed by the
North Carolina Medical Board. (Id. at 18-21). He was
1 Citations are to the record on appeal—the joint appendix—in
the Fourth Circuit. The citations are provided for the Court’s
convenience in the event this Court deems it necessary to review
the record to resolve this petition. See Sup. Ct. R. 12.7.
6
arrested while on a visit back to the United States.
(Id. at 850).
In 2017, the government brought additional
charges for the conduct addressed by the North Carolina Medical Board in a superseding indictment,
charging Dr. Dixon with conspiracy to unlawfully dispense and distribute controlled substances in violation of 21 U.S.C. § 846 and also with twenty counts of
unlawfully dispensing and distributing controlled
substances in violation of 21 U.S.C. § 841(a)(1). (Id. at
40-44).
2. Consistent with circuit precedent, the district court failed to give a mens rea instruction to the jury as to what the government must prove that a physician intended when they wrote prescriptions
while allegedly acting outside the usual
course of professional practice or without
a legitimate medical purpose, or to otherwise delineate the line between medical
malpractice and criminal conduct.
There was no dispute at trial that the prescriptions in question were for controlled substances and
had been written by Dr. Dixon, i.e., that he had “distributed” or “dispensed” a controlled substance. The
only issue was the exercise of his professional judgment, and whether the prescriptions were written for
a “legitimate medical purpose” and within his “usual
course of professional practice.”
The district court failed to instruct the jury on the
mens rea the government must prove beyond a reasonable doubt than an accused physician acted with
in connection with these phrases or otherwise clarify
that these phrases create a different and higher
7
standard than the civil standards for medical malpractice.2
Without clarification for the jury, the disposition
of this critical issue turned mostly on the testimony of
the government’s expert, Dr. Greenblatt, a doctor and
medical school professor practicing in a large urban
hospital, when weighed against the testimony of Dr.
Dixon’s former spouse, Dr. Baptiste, a doctor with experience in pain management in impoverished rural
areas.3
Dr. Greenblatt recognized that the North Carolina
Medical Board had not adopted the 2014 national
guidelines for opioid safety promulgated by the Centers for Disease Control (“CDC”) until 2017, well after
the allegations in the case occurred. (Id. at 518-19).
That said, Dr. Greenblatt testified to an unwritten
standard of care that, in his opinion, was in effect
back in 2012 through 2014, focusing on the need to
perform physical examinations and obtaining medical
records for the patient generated by other provides.
(Id.). When asked how a practitioner would know this
standard of care during the relevant time frame, Dr.
Greenblatt testified that most learn it during their
post-medical school residencies. (Id. at 520).
2 The
pertinent instructions ultimately given by the district
court appear below in the Pet. App. 81a to 84a.
3 The Government also relied, in part, on incentivized witnesses,
i.e., testimony from people they had charged in the case for obtaining prescriptions from Dr. Dixon, as well as a former employee of Dr. Dixon’s clinic who had become an informant for the
DEA. (JA 176-196, 247-257, 379-429). No undercover investigative work that could have been audio or video recorded was conducted to corroborate the allegations that these witnesses made
against Dr. Dixon.
8
Furthermore, for example, Dr. Greenblatt himself
did not have the medical records for one of the testifying co-defendants, J.F., who had been a patient of Dr.
Dixon, and so Dr. Greenblatt’s opinions, informed by
that former patient’s testimony, on when the physician-patient relationship had turned illegitimate was
based on the credibility of a person facing criminal
prosecution who was an admitted addict. (Id. at 52932). On cross examination, Dr. Greenblatt admitted
that when patients have limited financial resources,
and they are self-pay without extra funds for radiological studies, etc, it presents a challenge to the physician treating for pain management. (Id. at 543).
While Dr. Dixon’s former attorneys, who were trial
counsel in this case, did not seek to have Dr. Baptiste
formally tendered as an expert, she also testified
about the relevant standards of care as they applied
in the actual communities being served, especially in
impoverished rural areas. (Id. at 603-628). She was a
family medicine physician for the Department of Defense. (Id. at 604). She had previously worked for the
VA in the area where Dr. Dixon practiced, and described that practice in that rural area as very challenging, especially due to the poverty. (Id. at 608-09).
In the area where Dr. Dixon practiced, Dr. Baptiste explained that there is only one hospital in the
Pembroke area. (Id. at 609). As a result, “[t]here is not
a lot of access to physical therapy, x-rays, MRIs, even
pain management clinics.” Id. That affected her medical practice because her patients could not always
travel to Fayetteville to get x-rays which, according to
Dr. Greenblatt, may have been necessary medical information for a doctor to review before prescribing
opiates. Id. Dr. Baptiste testified that when a doctor
9
has no records to refer to, or x-rays to examine, because a patient did not have access to those medical
services, the only thing a doctor can use is his or her
ability to examine the patient, the doctor’s training
and the patient’s history – or what the patient tells
the doctor. (Id. at 610-611).
Dr. Baptiste continued by explaining that sometimes a doctor-patient relationship can be formed
even when the doctor and patient have never met
face-to-face. (Id. at 622). She explained, that “there
are situations * * * that a doctor might prescribe for a
family member [of a patient] because they know that
family member, whether it be a husband or wife,
whatever, and they choose to write a hand-script for
them.” (Id. at 627-628).
Dr. Baptiste testified that it can be very difficult
to differentiate between an addict and a person genuinely in pain. (Id. at 613). She said, “when a patient
comes in complaining of pain, you don’t know if they
have pain * * * you’re just basically going off what
they’re telling you. And if they’re coming to see you
for pain, you’re required to address it.” Id. She explained that people, and addicts in particular, can be
very manipulative. (Id. at 614). “[Y]ou have to balance
your clinical training and your desire to help someone
and relieve their pain with trying to see through the
fog, and see do they really have pain, how are they
walking, what’s going on.” (Id.).
She also testified that, when dealing with patients
complaining of pain, some doctors are more aggressive than others. (Id.). Furthermore, doctors in combat situations are even more aggressive in pain management treatment because when they are taking on
gun fire, they cannot have soldiers “laid up” in pain.
10
(Id. at 614). She said, “[s]o, if someone comes in with
– like I see it in my clinic every day, and we’re not
even a combat zone – but we see people who come
back from combat who have injuries that they couldn’t
have gotten through if they didn’t have that pain relief.” (Id.). Thus, the actual practice of prescribing
pain medication varies based on both the doctor’s experience and the patient’s circumstances. (Id.).
Dr. Baptiste testified that the first time she ever
wrote a prescription for an opiate, it was after she
completed her residency. (Id. at 611). Contrary to
what Dr. Greenblatt testified was the norm, Dr. Baptiste had not learned how to prescribe opiates in medical school or her residency. (Id.). She had to consult
the Physician’s Desk Reference to learn the appropriate dosages to prescribe her patient. (Id.). Dr. Baptiste stated that it has only been in the last few years
that doctors have become more versed in the use of
pain medications, and opiates in particular. (Id. at
612). However, Dr. Baptiste conceded effectively that
Dr. Dixon was at least negligent in some of his prescribing practices by saying she would not have engaged in some of those practices. (Id. at 626).
The jury ultimately convicted Dr. Dixon on all 21
counts in the indictment. (Id. at 759-774). At the end
of the sentencing hearing, the district court sentenced
Dr. Dixon to 240 months imprisonment (20 years). See
Pet. App. 2a.
3. The Fourth Circuit rejected Dr. Dixon’s
challenge to the jury instructions.
On appeal, despite even the government alleging
in the superseding indictment that Dr. Dixon acted
with the mens rea of intending to act outside the usual
course of professional practice and not for a legitimate
11
medical purpose (but, critically, not instructed on by
the district court), the panel in the Fourth Circuit—
in an unpublished decision—rejected Dr. Dixon’s
challenge to the jury instructions, in part citing that
other circuits had determined that this Court’s decision in Gonzalez did not impose any new requirements in the body of law on instructing juries when a
physician is prosecuted under the CSA. See Pet. App.
3a-4a.
REASONS FOR GRANTING THE WRIT
I. THE FOURTH CIRCUIT’S INSTRUCTIONAL
PRACTICE FAILS TO SET OUT A MENS REA
THE GOVERNMENT MUST PROVE &
LEAVES JURIES UNINFORMED ABOUT
THE CLEAR LINE THIS COURT HAS
DRAWN BETWEEN CIVIL MALPRACTICE
AND CRIMINAL LIABILITY RESULTING
FROM DRUG DEALING AS CONVENTIALLY
UNDERSTOOD
By developing the law of jury instructions in unlawful prescribing trials without instructing on a
mens rea that the government must prove that a physician acted with in relation to the key terms “legitimate medical purpose” and “usual course of medical
practice,” and without otherwise instructing about
the line between criminal conduct and bad or merely
disputed medical practice, the Fourth Circuit is failing to enforce an important line that Congress and
this Court have drawn.
Most recently, in discussing the reach of the Controlled Substances Act (“CSA”) in Gonzalez v. Oregon,
this Court emphasized the Act’s narrow scope when it
comes to the practice of medicine. Specifically, the
Court explained the CSA is a statute concerned with
12
combating recreational drug abuse, and not an attempt (or authorization to the federal government) to
regulate medical practice generally. 546 U.S. 243, 272
(2006). This Court explained that the CSA draws a
clear and important line between criminal and noncriminal conduct:
The [CSA] and our 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 in illicit drug dealing and trafficking as
conventionally understood. Beyond this, however, the statute manifests no intent to regulate the practice of medicine generally.
Id. at 269-70.
This is the same line this Court drew when it upheld the government’s prosecution of a physician under the CSA in United States v. Moore, the only case
where this Court has directly dealt with a physician
being prosecuted under the CSA on the merits. 423
U.S. 122, 143 (1975).
In Moore, this Court held that physicians were not
categorically exempt from criminal prosecution under
the CSA’s unlawful distribution provisions, i.e., 21
U.S.C. § 841(a). And criminal liability existed in
Moore, because the doctor “acted as a large scale
‘pusher’ not as a physician.” Id. This clear line, where
the government must prove that the physician acted
with a mens rea that they were engaged in drug dealing as conventionally understood effectuates what
this Court sought to clarify when deciding Moore,
which involved a doctor “prescribing as much and as
frequently as the patient demanded…not charg[ing]
for medical services rendered, but graduat[ing] his fee
13
according to the number of tablets desired.” Id. at 14243.
This clear line—that the accused physician intended (the mens rea) to act as a drug dealer as conventionally understood—is also embodied in the same
line that this Court drew a century ago in cases interpreting the 1914 Harrison Act (the predecessor to the
CSA), and where this Court affirmed convictions from
prosecutions where the doctor “[i]n reality [ ] became
party to sales of drugs.” Linder v. United States, 268
U.S. 5, 20-22 (1925); see, e.g., Jin Fuey Moy v. United
States, 254 U.S. 189, 194 (1920) (affirming conviction
of doctor who prescribed large quantities of morphine,
where prescriptions were demonstrably just sales to
drug addicts, where doctor, inter alia, charged according to the amount of drugs “prescribed”); Webb v.
United States, 249 U.S. 96, 99 (1919) (affirming conviction where physician and druggist conspired to sell
large quantities of morphine under the guise of issuing prescriptions); United States v. Behrman, 258
U.S. 280, 288-89 (1922) (affirming conviction where
physician “indiscriminate[ly] dol[ed] out narcotics” in
such large quantities to a known addict that the “so
called prescriptions” could only be for drug use or
sale); compare with Linder, 268 U.S. at 17, 22 (reversing conviction of a physician because, unlike in Jin
Fuey Moy, Webb or Behrman, the physician’s distribution of only a small quantity of drugs did not give rise
to such clear inference of unlawful actions and failure
to comply with professional standards, or in other
words a “conscious design to violate the law”).
Against this backdrop, the line that has been
drawn by this Court, and Congress, is when a physician intends (the mens rea) to cease to act as a physician and instead intends to act as a drug dealer that
14
causes a doctor to face federal criminal prosecution
and serve potentially years, or decades, in prison.
This Court in Moore implicitly approved of a mens rea
instruction by acknowledging that subjective good
faith by a physician would be a defense to an accusation that a physician acted outside the usual course of
professional practice. 423 U.S. at 139.
The lack of a mens rea as to the element of prescribing (distributing) controlled substances outside
of the usual course of professional practice or without
a legitimate medical purpose violated two basic principles of our criminal justice system. That lack ignores
the principle that “[t]he existence of a mens rea is the
rule of, rather than the exception to, the principles of
Anglo-American criminal jurisprudence.” United
States v. United States Gypsum Co., 438 U.S. 422, 436
(1978). That rule is “universal and persistent in mature systems of law.” Morissette v. United States, 342
U.S. 246, 250 (1952). Its application is especially critical “where the act underlying the conviction” – here,
a doctor prescribing medicine – “is by itself innocuous.” Arthur Andersen LLP v. United States, 125 S.
Ct. 2129, 2134 (2005). This Court has emphasized this
principle repeatedly. “Morissette, reinforced by Staples [v. United States, 511 U.S. 60 (1994)], instructs
that the presumption in favor of a scienter requirement should apply to each of the statutory elements
that criminalize otherwise innocent conduct.” United
States v. X-Citement Video, Inc. 513 U.S. 64, 72
(1994); see also Rehaif v. United States, 139 S. Ct.
2191, 2200, 204 L. Ed. 2d 594 (2019) (clarifying that
government must prove that in a prosecution for unlawfully possessing a firearm the accused knew they
belonged to the relevant category of persons barred
from possessing a gun).
15
Without this mens rea, which is the current state
of the law in the Fourth Circuit, leaves a realm of conduct up for debate in the jury room that is better
suited to medical malpractice proceedings or state
medical board or licensing actions. Cf. Gonzalez, 546
U.S. at 270-21 (noting traditional reservation to the
states of the regulation of the medical profession).
Some circuits, recognizing the ambiguity in the concepts of usual course of professional practice and legitimate medical purpose, have cautioned district
courts of the perils of lowering the standard for criminal liability. See, e.g., United States v. Smith, 573
F.3d 639, 649 (8th Cir. 2009) (recognizing danger in
confusing mere medical malpractice and 21 U.S.C. §
841 standards); United States v. Feingold, 454 F.3d
1001, 1010 (9th Cir. 2006) (noting this Court’s care in
Moore to emphasize that the defendant had so wantonly ignored basic protocols of medical profession
that he acted as a large-scale pusher and not as a physician); and, the Fourth Circuit has made a similar
warning (but is not required in the instruction practice in the district courts), United States v. McIver,
470 F.3d 550, 558 (4th Cir. 2006) (noting potential for
juries to confuse the civil standard of care applied in
medical malpractice cases).
Only the Ninth Circuit has read into its body of
law for instructions a mens rea requirement as to the
concepts of usual course of professional practice and
legitimate medical purpose, that is “criminal liability
under § 841(a) requires more than proof of a doctor's
intentional failure to adhere to the standard of care."
Feingold, 454 F.3d at 1011. “A practitioner becomes a
criminal not when he is a bad or negligent physician,
but when he ceases to be a physician at all.” Id. Other
16
circuits, recognize the ultimate danger, i.e. convictions for civil malpractice, resulting from a lack of a
clear articulation of the mens rea that must be proven
but fail to make a mens rea requirement a core part
of their body of law on instructions governing the application of the CSA to physician prescribing practices. See United States v. Tran Trong Cuong, 18 F.3d
1132, 1137 (4th Cir. 1994) (noting that a criminal conviction “requires more” than a showing of malpractice); see also United States v. Kirk, 584 F.2d 773, 784
(6th Cir. 1978) (stating that there are no specific
guidelines concerning what is required to support a
conclusion that the accused acted outside the usual
course of professional practice).
Telling juries that a doctor must have acted with
“a legitimate medical purpose” or within “the usual
course of professional practice” to escape criminal liability, gives them a free hand to decide for themselves
what the standard of care is, and then convict on any
deviation from that standard. It is not at all the same
thing as telling them that criminal liability can only
attach when a doctor intentionally abandons his or
her role as a physician to become a drug dealer as conventionally understood. Cf. Gonzalez, 546 U.S. at 258
(“All would agree, we should think, that the statutory
phrase ‘legitimate medical purpose’ is a generality,
susceptible to more precise definition and open to varying constructions, and thus ambiguous in the relevant sense.”).
Moreover, a “good faith” jury instruction, as was
given here is no answer to these concerns. It creates
circular logic, because that instruction simply re-incorporates the very same terms, still without defining
them, thus allowing a conviction for a species of civil
malpractice:
17
[i]f a doctor dispenses a drug in good faith, in
medically treating a patient, then the doctor
has dispensed that drug for a legitimate medical purpose in the usual course of medical practice. That is, he has dispensed the drug lawfully. Good faith in this context means good intentions, and the honest exercise of professional judgment as to the patient’s needs. It
means that the defendant acted in accordance
with what he reasonably believed to be a legitimate medical purpose and… in accordance
with the usual course of generally accepted
medical practice.
See, e.g., Pet. App. 82a. Additionally, the dissent
in Hurwitz pointed out the logical contradiction between the concept of good faith (the intent of the actor) and an objective inquiry (the act in question) and
concluded that good faith should be a subjective
standard. 459 F.3d 463, 483 (4th Cir. 2006) (Widener,
J., dissenting).
The failure to instruct the jury on a mens rea that
the government had to prove, as was actually alleged
in the counts in indictment, erases the line that Congress and this Court have drawn to separate negligence and malpractice from the realm of intent and
conduct that establishes criminality, creating the
very real possibility of conviction on grounds broader
than “drug dealing and trafficking as conventionally
understood.”
18
II. THE FOURTH CIRCUIT’S PRACTICE
DEVOID OF A MENS REA ELEMENT
CRIMINALIZES DISPUTES ABOUT THE
PROPER STANDARD OF CARE
By failing to define what is—and what is not—encompassed by the terms “legitimate medical purpose”
and “usual course of professional practice,” and then
also failing to articulate what mens rea a physician
must have when deviating from those terms in their
prescribing practices in order to be lawfully prosecuted under the CSA, the Fourth Circuit’s practice effectively criminalizes disputes about the proper
standard of care.
Without an instruction on mens rea in this context,
and further clarification on what is and is not the
usual course of professional practice and a legitimate
medical purpose, the gravamen of physician-prescribing cases is almost always going to be the physician’s
exercise of professional judgment.
Not only do juries have a free hand under this legal regime to decide for themselves what the standard
of care is in a given case, and then to convict on a deviation from that standard, this legal regime also empowers the government to mold a standard of care
through the use of their experts in these trials, even
if, as what occurred in the trial below, another doctor
testifies in disagreement with the government’s expert.
This outcome is in tension with the limits on the
federal government’s ability to define standards for
the proper medical care and treatment of patients. As
this Court explained in Gonzalez, the CSA evidences
no Congressional intent to permit the Attorney General to make such a general definition; in fact, to the
19
contrary, it affirmatively “conveys unwillingness to
cede medical judgments to an executive official who
lacks medical expertise.” 546 U.S. at 265-66. Yet the
government’s use of experts to testify in a trial where
the jury is ultimately charged without any meaningful principle for distinguishing between negligence or
malpractice, on the one hand, and conduct that is outside the “usual course of professional practice” and
without “a legitimate medical purpose,” i.e., criminal
behavior, on the other, and then without a mens rea
element as to those concepts, is so problematic because bad and outright wrong medical judgments may
occur within the usual course of a physician’s professional practice.
Here, two doctors with experience in treating
chronic pain testified on what was often different
sides of the line. Also, Dr. Dixon’s interview with the
DEA was played to the jury, where there was an effective admission of negligence on his part. The disagreements by the testifying doctors in this case is unsurprising given how fluid and uncertain the concepts
of usual course of professional practice and legitimate
medical purpose are, and why this Court’s articulation in Moore and Gonzalez of where that line rests
makes a great deal of sense. But the practice in the
Fourth Circuit, and other circuits, in instructing juries on the application of the CSA to a physician’s prescribing practices fails to give effect to where this
Court and Congress has identified where that line
rests. Physicians are critical to the wellbeing of our
society, now more than ever, however, a legal regime
that subjects a physician to great ambiguity on where
the line rests for criminal prosecution and exposure to
what this Court recognized in Moore as “severe criminal penalties” is untenable. 423 U.S. at 135.
20
In contrast, explaining to juries that criminal prosecutions are not evaluating malpractice, and that a
doctor intentionally acts outside of “a legitimate medical purpose” and the “usual course of professional
practice” only when they intentionally become a drug
“pusher” engaging in drug dealing as “conventionally
understood,” provides a clear and meaningful benchmark to evaluate the expert testimony, and allows juries to serve as a check against unchained prosecution. But failing to expressly delineate these critical
boundaries through a mens rea element and the clarification of the narrow application of the CSA to physicians that this Court articulated in Gonzalez, risks
criminalizing the practices of physicians who may be
negligent or exercising poor judgment, even engaging
in professional norm violations, but are not crossing
the line into the behavior of drug dealers conventionally understood.
This Court has repeatedly intervened to rein in the
government’s overly expansive interpretation and application of criminal statutes. See, e.g., Kelly v. United
States, 590 U.S. ___ (2020) (reversing convictions of
local officials for causing crippling and dangerous
traffic jams on the George Washington bridge by holding federal wire fraud statute does not reach all forms
of deception through use of the wires but instead only
those schemes where the object is obtaining money or
property); Maslenjak v. United States, 137 S. Ct. 1918,
1927 (2017) (rejecting government’s broad interpretation of 18 U.S.C. § 1425(a), which would “give prosecutors nearly limitless leverage” because “Congress…did not go so far as the Government claims”);
McDonnell v. United States, 136 S. Ct. 2355, 2367-68
(2016) (rejecting government’s broad interpretation of
21
18 U.S.C. § 201(a)(3), which read statutory term “official act” to “encompass nearly any activity by a public
official,” and instead “adopt a more bounded interpretation of ‘official act’’); Yates v. United States, 135 S.
Ct. 1074, 1081 (2015) (plurality opinion) (rejecting
government’s broad interpretation of 18 U.S.C. §
1519, which read undersized fish as falling within
phrase “any record, document, or tangible object,” because it was an “unrestrained reading’”); Bond v.
United States, 572 U.S. 844, 857-61 (2014) (rejecting
government’s broad interpretation of 18 U.S.C. §
229(a)(1) and statutory implementation of chemical
weapons treaty as including local crime of poisoning
a romantic rival).
This Court should rein in the application of the
CSA to the prescribing practices of physicians
through a mens rea element and clarification on the
concepts of usual course of professional practice and
legitimate medical purpose in order to re-establish
the line that this Court has already drawn. Indeed, it
has been nearly 46 years since this Court last reviewed the federal government’s criminal prosecution
of a physician for unlawfully prescribing controlled
substances in Moore. (Gonzalez, while important to
this question, arose as an action for injunctive relief
by the State of Oregon and others against an interpretive rule issued by the Attorney General indicating
that physicians who assisted the suicide of terminally
ill patients under state law would be violating the
CSA, see 546 U.S. at 248, 254.) There is no substitute
for reaffirming the line between criminal conduct and
negligence or professional malfeasance in an actual
criminal prosecution.
22
III. THE QUESTION PRESENTED ABOUT
WHAT THE GOVERNMENT MUST PROVE
TO
ESTABLISH
A
PRACTITIONER’S
CRIMINAL LIABILITY HAS SIGNIFICANT
CONSEQUENCES
FOR
MEDICAL
PRACTICE NATIONWIDE.
Now, especially in an era that has brought us a
national emergency and global pandemic due to
COVID-19, and rampant debate within the medical
community on the efficacy of potential treatments,
this is an important time for this Court to intervene
and require juries to be instructed more clearly about
when a physician is criminally liable for prescribing a
controlled substance.
Specifically to this case, in the years since the prescriptions in this case were written back in 2012
through 2014, the national attention on the use, and
misuse, of opioids and other prescription drugs has increased drastically. See, e.g., Lenny Bernstein, White
House opioid commission calls for wide-ranging
changes to anti-drug policies, Washington Post, Nov.
1, 2017 (recounting national attention on prescription
drug abuses). In 2016, the Centers for Disease Control
and Prevention published a guideline for prescribing
opioid pain medications in primary care settings. See
Centers for Disease Control and Prevention, et. al.,
Guideline for Prescribing Opioids for Chronic Pain, J.
Pain & Palliative Care Pharmacotherapy, 2016, Jun;
Vol. 30(2):138-40; 4 CDC Guideline for Prescribing
4 Available at, https://www.ncbi.nlm.nih.gov/pubmed/27301691;
https://www.tandfonline.com/doi/full/10.3109/15360288.2016.11
73761.
23
Opioids for Chronic Pain – United States, 2016, Morbidity and Mortality Weekly Report (MMWR), March
15, 2016.5
In 2017, the Acting Secretary of Health and Human Services declared the national opioid abuse epidemic a public health emergency, and the President
established a commission to study the problem and
make recommendations. See, e.g., U.S. Dep’t of Health
and Human Services, Press Release, HHS Acting Secretary Declares Public Health Emergency to Address
National Opioid Crisis, Ex. Order 13784 (March 29,
2017) (establishing Presidential Commission).6
The government has also responded by prosecuting doctors. See, e.g., Michael Nedelman, Doctors increasingly face charges for patient overdoses, CNN,
July 31, 2017 (reporting that “[b]etween 2011 and
2016, the number of doctors punished by the DEA
jumped more than five times”); Kelly K. Dineen &
James M. DuBois, Between A Rock and A Hard Place:
Can Physicians Prescribe Opioids to Treat Pain Adequately While Avoiding Legal Sanction?, 42 Am. J.L.
& Med. 7, 36 (2016) (suggesting that “[t]here are some
indications that law enforcement scrutiny of physicians has grown recently in reaction to the rise in prescription drug abuse”).
The government has identified prosecutions of
physicians under the CSA as a high priority area,
thus there is an expectation that these prosecutions
will be recurring events with a profound impact on the
Available at, https://www.cdc.gov/mmwr/volumes/65/rr/rr
6501e1.htm.
6 Available at, https://www.hhs.gov/about/news/2017/10/26/hhsacting-secretary-declares-public-health-emergency-address-national-opioid-crisis.html.
5
24
medical profession. See K. Tate Chambers, A Primer
on Investigating Doctors Who Illegally Prescribe Opioids, 66 U.S. Att’y Bull. (July 2018) at 19-32 (recounting efforts to make the “overprescribing of opioids by
health care professionals a top priority of the Department of Justice,” and providing guidance on such
prosecutions); 7 see also U.S. Dep’t of Justice, Press
Release, Attorney General Sessions Announces Opioid Fraud and Abuse Detection Unit (Aug. 2, 2017);8
U.S. Dep’t of Justice, Press Release, Attorney General
Sessions Announces New Prescription Interdiction
and Litigation Task Force (Feb. 27, 2018).9
Accordingly, the courts are likely to continue to
grapple with many cases involving physicians
charged with unlawfully prescribing controlled substances, and predictably beyond just the opioid crises.
Instructing juries with greater specificity, uniformly
across the country, will ensure that they can adequately distinguish well-meaning but mistaken doctors (and even bad doctors engaged in professional
malfeasance) from drug dealers conventionally understood. Doing so with an emphasis on the mens rea that
the government must prove to convict a physician (or
other qualified practitioner) still protects the government’s important efforts to shut down problematic
“pill mills” and “pain clinics” that are medical practices in name only, or to prosecute doctors “who sold
drugs, not for legitimate purposes, but ‘primarily for
Available
at,
https://www.justice.gov/usao/page/file/
1083791/download.
8 Available at, https://www.justice.gov/opa/pr/attorney-generalsessions-announces-opioid-fraud-and-abuse-detection-unit.
9 Available at, https://www.justice.gov/opa/pr/attorney-generalsessions-announces-new-prescription-interdiction-litigationtask-force.
7
25
the profits to be derived therefrom.’” Moore, 423 U.S.
at 135 (quoting legislative history of the Controlled
Substances Act, H.R. Rep. No. 91-1444 at 10).
Adding this clarity to the legal regime governing
prosecutions of physicians under the CSA, with a
mens rea element and further clarification on the concepts of usual course of professional practice and legitimate medical purpose, will curtail the over- criminalization of disputes about the proper exercise of
medical judgment, holding the line of criminal liability where Congress and this Court have appropriately
set it, at those who “engage in illicit drug dealing and
trafficking as conventionally understood.” Gonzalez,
546 U.S. at 270.
The instructional practice in the Fourth Circuit,
and in other circuits, has obscured this clear line and
risks convictions and imposing serious penalties, including years or decades in prison, for a species of civil
medical malpractice. This Court’s intervention is necessary to reaffirm the line and ensure that juries are
properly instructed.
26
CONCLUSION
The petition for a writ of certiorari should be
granted.
Respectfully submitted,
/S/ RAYMOND C. TARLTON
RAYMOND C. TARLTON
Counsel of Record
209 Fayetteville Street
Suite 105
Raleigh, NC 27601
(919) 948-6464
rtarlton@tarltonpolk.com
Counsel for Petitioner
MAY 18, 2020
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.