Reply Brief — Xiulu Ruan, Petitioner v. United States

No. 20-1410

In the Supreme Court of the United States

DR. XIULU RUAN,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

REPLY BRIEF FOR PETITIONER

LAWRENCE S. ROBBINS

Counsel of Record

D. HUNTER SMITH

JEFFREY C. THALHOFER

ROBBINS, RUSSELL, ENGLERT,

ORSECK & UNTEREINER LLP

2000 K Street, NW, 4th Fl.

Washington, DC 20006

(202) 775-4500

lrobbins@robbinsrussell.com

July 20, 2021

Counsel for Petitioner

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES..................................... ii

REPLY BRIEF FOR PETITIONER ........................ 1

CONCLUSION ....................................................... 11

(i)

ii

TABLE OF AUTHORITIES

Cases

Page(s)

Black v. United States,

561 U.S. 465 (2010) ................................................ 9

Boyde v. California,

494 U.S. 370 (1990) .............................................. 10

Kingsley v. Hendrickson,

576 U.S. 389 (2015) ................................................ 8

Maslenjak v. United States,

137 S. Ct. 1918 (2017) ............................................ 8

Mazurek v. Armstrong,

520 U.S. 968 (1997) ............................................. 10

McDonnell v. United States,

136 S. Ct. 2355 (2016) ............................................ 9

McFadden v. United States,

576 U.S. 186 (2015) ................................................ 8

Rehaif v. United States,

139 S. Ct. 2191 (2019) ............................................ 8

Richardson v. Marsh,

481 U.S. 200 (1987) .............................................. 10

Skilling v. United States,

561 U.S. 358 (2010) ................................................ 8

United States v. Abovyan,

988 F.3d 1288 (11th Cir. 2021) .............................. 4

United States v. Enmon,

686 Fed. Appx. 769 (11th Cir. 2017) ................. 1, 4

iii

TABLE OF AUTHORITIES—Continued

Page(s)

United States v. Feingold,

454 F.3d 1001 (9th Cir. 2006) ................................ 7

United States v. Joseph,

709 F.3d 1082 (11th Cir. 2013) .............................. 4

United States v. Kohli,

847 F.3d 483 (7th Cir. 2017) .................................. 7

United States v. Merrill,

513 F.3d 1293 (11th Cir. 2008) .............................. 4

United States v. Moore,

423 U.S. 122 (1975) ............................................ 1, 5

United States v. Tobin,

676 F.3d 1264 (11th Cir. 2012) ...................... 1, 4, 8

United States v. Wexler,

522 F.3d 194 (2d Cir. 2008) ................................... 6

Miscellaneous

United States Brief in Opposition, Sun v.

United States, No. 16-9560 (Aug. 2017) ................ 3

United States Brief in Opposition,

Volkman v. United States, No. 13-8827

(July 11, 2014) .................................................... 3, 6

REPLY BRIEF FOR PETITIONER

The government evidently believes that this

Court won’t read the Eleventh Circuit’s opinion before

acting on the petition. The court of appeals held, in

language the government omits from its opposition,

that a physician may assert a good faith defense only

“as long as [his] conduct also was in accordance with

the standards of medical practice.” Pet. App. 107a.

The court therefore sustained an instruction that told

the jury—in language the government lops off

entirely, see, e.g., BIO 7—that a doctor may be

convicted, regardless of his good faith, if his

prescriptions “were outside the usual course of

professional medical practice.” Pet. App. 139a. The

Eleventh Circuit’s refusal to accord good faith any

independent force reflects its longstanding view that

“whether [a physician] had a good faith belief that he

dispensed a controlled substance in the usual course

of his professional practice is irrelevant” to criminal

liability. United States v. Enmon, 686 Fed. Appx. 769,

773 (2017) (per curiam) (emphasis added); United

States v. Tobin, 676 F.3d 1264, 1283 (2012).

Tellingly, the government does not defend that

idiosyncratic position. Indeed, it concedes that a

physician who “ma[kes] ‘an honest effort’ to act[]

consistently with” professional standards should not

be convicted. BIO 11 (quoting United States v. Moore,

423 U.S. 122, 142 n.20 (1975)). Nor does the

government dispute that the question presented is

important and recurring. Good faith, after all, is the

defense in every single physician prosecution under

the CSA, spelling the difference between felony

distribution and simple malpractice.

(1)

2

The government’s concession should have

prompted it to confess error in this case. Instead, the

government engages in misdirection, starting by

recasting the challenged ruling as only a discretionary

refusal to grant an instruction, rather than the giving

of a legally erroneous instruction.1 The government

uses the same feint to reformulate the question

presented and to minimize the 3-3-1 circuit conflict

over the scope of the good faith defense. The

government also makes two of the usual “vehicle”

objections, but neither is well taken.

1. Because the government’s brief conspicuously

avoids doing so, we reiterate the district court’s actual

instruction. Purporting to “throw[]” Petitioner “a

bone,” Pet. App. 136a, the court agreed to mention

“good faith,” but then immediately told the jury that

the defense has no independent force:

Thus a medical doctor has violated section

841 when the government has proved beyond

a reasonable doubt that the doctor’s actions

. . . were outside the usual course of

professional medical practice.

Pet. App. 139a (emphasis added). The court of appeals

upheld this instruction because it believed that good

faith is a CSA defense “as long as the [defendants’]

conduct also was in accordance with the standards of

medical practice,” Pet. App. 107a (emphasis added)—

that is to say, as long as the doctor’s conduct is already

lawful. On that basis, the Eleventh Circuit also

1 For that reason, the government’s suggestion (at 9) that the

petition raises the same issue as those in Sun and Armstrong is

mistaken. As best we can tell, neither case presented a challenge

to an affirmatively erroneous good faith instruction.

3

rejected (Pet. App. 105a) Petitioner’s proposed

“reasonable belief” instruction—even though the

Fourth, Second, and Sixth Circuits have approved

that identical instruction, see Pet. 18-21, and the

Solicitor General has endorsed it as a “model of clarity

and comprehensiveness,” U.S. BIO at 12-13, Volkman

v. United States, No. 13-8827 (July 11, 2014).2

The government suggests (at 14), fancifully, that

the jury may have “naturally” intuited a good faith

defense because the district court used the words

“professional” and “medical.” Even if the jurors were

that clairvoyant, their imaginations would not

overcome the district court’s explicit instruction that

a departure from professional norms is enough to

convict. And the Eleventh Circuit affirmed, not

because the jury would somehow intuit a genuine good

faith defense, but precisely because the instruction

“told the jury” that good faith may be claimed only by

doctors whose conduct falls within professional

norms. See Pet. App. 107a. The court of appeals

likewise rejected Petitioner’s attempt to give the good

faith defense some meaning as an “incorrect

statement of the law.” Pet. App. 105a.

Not to worry, the government says (at 14). The

district court at least “mentioned” (ibid.) the words

“good faith,” so perhaps Petitioner wasn’t deprived of

a good faith defense after all. Not even the Eleventh

2 The government seeks to diminish its Volkman concession

(BIO 13), but fails to identify any pertinent distinction between

the instruction in that case and the one Petitioner unsuccessfully

requested. And Sun sheds no light on the issue, as the petitioner

there sought a purely subjective “belief” instruction that omitted

the modifier “reasonably.” U.S. BIO at 12-13, Sun v. United

States, No. 16-9560 (Aug. 2017).

4

Circuit subscribed to that canard. Yes, the trial court

“thr[ew]” Petitioner “a bone” by mentioning good

faith, but it immediately sapped it of any actual

content. Pet. App. 139a. That was “as far as [the

court was] willing to go, given the state of the law on

this issue.” Pet. App. 136a.

And under Eleventh Circuit precedent, the

district court’s conclusion was undoubtedly correct.

That court has squarely held that the “appropriate

focus” is “whether the physician prescribes medicine

in accordance with a standard of medical practice.”

United States v. Abovyan, 988 F.3d 1288, 1305 (2021)

(quoting United States v. Merrill, 513 F.3d 1293, 1306

(2008)). It had previously rejected a “reasonable

belief” instruction as “incorrect” (United States v.

Joseph, 709 F.3d 1082, 1097 (2013)), and concluded

that the CSA “holds practitioners” to the standard of

care. Tobin, 676 F.3d at 1283 & n.10. Put simply, in

the Eleventh Circuit, good faith is “irrelevant.”

Enmon, 686 Fed. Appx. at 773.3

2. In an understatement worthy of P.G.

Wodehouse, the government acknowledges (at 17)

“some variation” among the circuits in the content of

a permissible good faith defense. In truth, the

“variation” is gaping. Three circuits (the Fourth,

3 The government claims (at 15) that the Eleventh Circuit has

never “directly considered” a proposed jury instruction that

“links good faith to a defendant’s attempt to comply with the

objectively accepted professional practice.” Even if that were so

(and it isn’t; Petitioner’s proposed instruction meets that madeup standard), it would still not diminish the fact that the

Eleventh Circuit has repeatedly rejected as “incorrect,” Pet. App.

105a; Joseph, 709 F.3d at 1097, the very instruction that three

other circuits have approved, see Pet. 18-21, 24.

5

Second, and Sixth) forbid conviction if the doctor

“reasonably believed” that her prescription fell within

professional norms. See Pet. 18-21. Three (the Ninth,

Seventh, and First) require the government to prove

that the physician intended to exceed the bounds of

the profession. See Pet. 21-23. But the Eleventh

Circuit permits neither such defense.4

a. The government says that the Fourth Circuit’s

decision in Hurwitz is not truly conflicting because the

jury in that case was “affirmatively” told that good

faith is not a defense to prescribing beyond

professional norms. BIO 17. Exactly—and so was

Petitioner’s jury. As the Eleventh Circuit explained

in affirming, the district court told the jury that a

doctor’s good faith is relevant only if her “conduct also

was in accordance with the standards of medical

practice.” Pet. App. 107a. Dr. Hurwitz’s jury was

effectively told the same thing, and on that very basis

the Fourth Circuit reversed.5

4 It is scarcely surprising that only one circuit, the Fourth in

Hurwitz, has found it necessary to reverse a verdict based on an

instruction like the one below. District courts in other circuits—

following their respective circuit precedent, this Court’s decisions

(see Pet. 27-29; Moore, 423 U.S. at 139, 142 n.20), and common

sense—never tell juries that exceeding professional norms is a

sufficient basis to convict.

5 The government notes that the Fourth Circuit has rejected a

“subjective standard for measuring . . . good faith.” BIO 17-18.

That’s true enough, but irrelevant. For one thing, Petitioner did

not request a “subjective standard”; he asked that the jury be told

it should acquit if he “reasonably believed” his prescriptions

comported with professional standards.

Pet. App. 131a

(emphasis added). Moreover, the question presented centers on

the decision to give an erroneous instruction, not just the failure

6

The government’s treatment of the Second

Circuit’s case law is equally baffling.

As the

government recognizes, in the Second Circuit “a jury

must be informed that the drug has been legally

dispensed if the physician had a good faith belief,

based on a standard of objective reasonableness, that

his prescription was . . . in accord with the usual

course of generally accepted medical practice.” BIO

18 (quoting United States v. Wexler, 522 F.3d 194, 205

(2008) (emphasis added) (quotation marks omitted)).

Petitioner asked for exactly that instruction, but the

Eleventh Circuit held that the jury need not “be

informed” of that defense unless the physician’s

conduct falls within professional norms. See Pet. App.

105a-107a.

As for the Sixth Circuit, the government is in an

especially tough spot because its brief in opposition in

Volkman endorsed precisely the instruction that the

opinion below rejected as an “incorrect statement of

the law.” Pet. App. 105a. See supra pp. 2-3 & n.2. So

the government directs this Court’s attention (BIO 18)

to the Volkman court’s rejection of a separate “drug

pusher” instruction. But the petition—and the circuit

split—concern the district court’s good faith

instruction, not the drug pusher instruction.

Compare Pet. App. 105a-107a (discussing the “Good

Faith Instruction”), with Pet. App. 108a-111a

(discussing the “Drug Pusher Instruction”). On that

issue—the

one

that

actually

matters—the

government has nothing to say.

to give the correct instruction Petitioner sought. That erroneous

instruction would not be countenanced in any of the conflicting

circuits.

7

b. The government’s treatment of the Ninth,

Seventh, and First Circuit cases is downright

misleading. To hear the government tell it (at 21), the

instruction in United States v. Feingold, 454 F.3d

1001 (9th Cir. 2006), was “substantively identical” to

the instruction given in this case. Not so—not even

close.

Dr. Feingold’s jury was told that it could not

convict him of drug dealing if he acted in good faith,

where “good faith . . . means an honest effort to

prescribe . . . in accordance with the standard of

medical practice generally recognized.” Id. at 1006

(emphasis added). The Ninth Circuit sustained that

instruction because it “compelled the jury to consider

whether Dr. Feingold . . . intended to act within the

usual course of professional practice.” Id. at 1009

(emphasis added). As the Ninth Circuit explained, “a

practitioner who acts outside the usual course of

professional practice may be convicted under § 841(a)

only if he does so intentionally.” Id. at 1007 (emphasis

added). That, of course, is the very proposition that

the Eleventh Circuit rejected.

The government misdirects the eye again when it

addresses United States v. Kohli, 847 F.3d 483 (7th

Cir. 2017). Kohli, the government tells the Court (at

20), “concerned a defendant’s challenge to the

sufficiency of the evidence against him rather than

any instructional dispute.” You might reach that

conclusion if you stopped reading the opinion on page

493. On page 494, the court rejected defendant’s

instructional challenge precisely because the jury was

told that it could not convict Dr. Kohli if he prescribed

in good faith. 847 F.3d at 494. See also id. at 489

(noting that instructions directed the jury to acquit if

8

the physician acted with “good intentions and the

honest exercise of good professional judgment”). The

Eleventh Circuit has held the opposite.

Most baffling of all is the government’s

contention (at 19-20) that there is no conflict with the

First Circuit because Dr. Couch’s counsel argued to

the jury that malpractice is an insufficient basis to

convict. The question, of course, is whether Eleventh

Circuit law conflicts with that of other circuits, not

whether Couch’s closing statements did. And, here,

Eleventh Circuit law exposes physicians to felony

conviction based on nothing more than a departure

from the “state standard of professional practice.”

Tobin, 676 F.3d at 1283 n.10.

3. Finally, the government raises two standard

vehicle objections, but each lacks merit.

a. First, advancing an argument that it did not

make below, the government contends that “any error

in the instructions was harmless beyond a reasonable

doubt.” BIO 22-24.

Even if this argument had merit, it would not

present a vehicle problem. This Court’s “usual

practice” is to grant certiorari, resolve the legal issue,

and reserve disputes over harmless error “for

resolution on remand.” Maslenjak v. United States,

137 S. Ct. 1918, 1931 (2017); see McFadden v. United

States, 576 U.S. 186, 189 (2015) (doing so in a case

concerning an instruction that “did not accurately

convey th[e] knowledge requirement” for a CSA

prosecution); see also, e.g., Rehaif v. United States,

139 S. Ct. 2191, 2200 (2019); Kingsley v. Hendrickson,

576 U.S. 389, 404 (2015); Skilling v. United States,

9

561 U.S. 358, 414 (2010); Black v. United States, 561

U.S. 465, 474 (2010).

In any event, the harmless error argument is

meritless.

Because “the jury was not correctly

instructed on the meaning of [the good faith defense],

it may have convicted [Petitioner] for conduct that is

not unlawful.” McDonnell v. United States, 136 S. Ct.

2355, 2375 (2016). That alone precludes any finding

that the “errors in the jury instructions were harmless

beyond a reasonable doubt.” Ibid. (quotation marks

omitted).

The risk of prejudice is especially severe because,

as the petition explained (Pet. 5-10 & n.6), with no

discernible

response

from

the

government,

substantial portions of the trial were consumed by

evidence of simple malpractice, thereby inviting the

jury to convict on that basis alone. As for the

purportedly “overwhelming” evidence of criminal

intent the government invokes (at 22-23), the proof

was anything but.6

6 Delegation to physician extenders, allegedly improper

(though facially legal, see Pet. App. 9a) off-label prescribing,

relations with pharmaceutical companies, and allegedly

insufficient attentiveness to prophylactic drug tests hardly

overcome (much less beyond a reasonable doubt) an affirmatively

erroneous instruction on Petitioner’s core defense. See BIO 2324. The government also draws on “the experience of an

undercover DEA agent” to argue that “petitioners prescribed

drugs based on minimal, unverified complaints of pain.” BIO 23

(emphasis added). But Dr. Ruan, the only petitioner we

represent, never prescribed opioids to an undercover agent: he

turned agents away three times, telling one that prescription

drugs were “not appropriate” for him. Pet. 9 n.3; Pet. App. 85a;

cf. BIO 5, 24 (describing an instance in which “Couch signed” a

prescription for an undercover agent (emphasis added)).

10

Indeed, the government was constrained to

concede at trial that Petitioners did not operate a “pill

mill,” see Pet. App. 27a n.6, and that “[b]y and large,

their patients were legitimate patients,” Pet. App.

84a. In a closely fought case such as this one, an

erroneous instruction on the central defense easily

made all the difference.7

b. The government’s appeal (at 24-25) to the

case’s “interlocutory” posture is less persuasive still.

“[T]here is no absolute bar to review of nonfinal

judgments of the lower federal courts[.]” Mazurek v.

Armstrong, 520 U.S. 968, 975 (1997) (per curiam).

And this case is not “interlocutory” in any sense that

counsels deferring review.

For one, since the government filed its brief in

opposition, Petitioner was resentenced to the same

term as he had previously been sentenced. Amended

Judgment, Dkt. 917 (July 14, 2021).

That

resentencing on a single, non-CSA count did not

“moot” the “issues raised in [the] petition.” BIO 2425. Nor could it possibly have done so: The question

presented was definitively decided by the court of

appeals and has nothing to do with the vacated AntiKickback Statute count. See Pet. 13 (noting that the

7 The government also suggests that defense counsel’s

argument to the jury cured any error in the jury instructions.

BIO 14. But it is the instructions that constitute the “definitive

and binding statements of the law,” and juries are presumed to

follow them. Boyde v. California, 494 U.S. 370, 384 (1990);

Richardson v. Marsh, 481 U.S. 200, 211 (1987). Here, moreover,

the court expressly reminded the jury that it must “follow the

law as [the court] explain[s] it,” Tr. 6322:12-13; that “anything

the lawyers say . . . is not binding on you,” Tr. 6323:11-12; and

that “arguments . . . by the lawyers are not evidence,” Tr. 9:1719.

11

AKS counts were independent of the narcotics

charges).8

On the other side of the ledger, two medical

doctors now sit in federal prison, convicted by a jury

that was told that good faith is not a real defense. All

the while, the Eleventh Circuit’s erroneous rule

continues to govern an untold number of other

prosecutions of medical providers. And federal courts’

“divergent, conflicting, and, frankly, confusing

approaches” continue to deter medical professionals

from prescribing to patients suffering from chronic

pain, “causing needless suffering and death.” Br. of

Health Law Professors 6-7, 14.

CONCLUSION

The petition for a writ of certiorari should be

granted. The Court may also wish to consider

summarily reversing the decision below.

8 Count 16 (the vacated conviction) and Count 17 (the other

AKS conviction) together yielded a 120-month sentence that had

originally been ordered to run concurrently with Petitioners’ 240month sentences for the narcotics violations. Sentencing Tr.

65:12-23.

12

Respectfully submitted.

LAWRENCE S. ROBBINS

Counsel of Record

D. HUNTER SMITH

JEFFREY C. THALHOFER

ROBBINS, RUSSELL, ENGLERT,

ORSECK & UNTEREINER LLP

2000 K Street, NW, 4th Fl.

Washington, DC 20006

(202) 775-4500

lrobbins@robbinsrussell.com

July 20, 2021

Counsel for Petitioner