Amicus Curiae Brief — Xiulu Ruan, Petitioner v. United States

No. 20-1410

IN THE

Supreme Court of the United States

————

XIULU RUAN,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

————

On Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

————

BRIEF OF AMICI CURIAE ASSOCIATION OF

AMERICAN PHYSICIANS AND SURGEONS

AND JEFFREY A. SINGER, M.D.,

IN SUPPORT OF PETITIONER

————

ANDREW L. SCHLAFLY

939 OLD CHESTER ROAD

FAR HILLS, NJ 07931

(908) 719-8608

aschlafly@aol.com

Counsel for Amici Curiae

December 27, 2021

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

i

QUESTION PRESENTED

A physician otherwise authorized to prescribe

controlled substances may be convicted of

unlawful distribution under 21 U.S.C. § 841(a)(1)

if his prescriptions “fall outside the usual course

of professional practice.” United States v. Moore,

423 U.S. 122, 124 (1975). To ensure that

physicians are not convicted for merely negligent

conduct, however, the federal courts generally

permit doctors to advance a “good faith” defense.

The question presented, on which the circuits

are deeply divided, is whether a physician alleged

to have prescribed controlled substances outside

the usual course of professional practice may be

convicted under Section 841(a)(1) without regard

to whether, in good faith, he “reasonably believed”

or “subjectively intended” that his prescriptions

fall within that course of professional practice.

ii

TABLE OF CONTENTS

Pages

Question Presented................................................ i

Table of Contents ................................................. ii

Table of Authorities ............................................ iii

Interests of Amici Curiae ..................................... 1

Summary of Argument ......................................... 2

Argument .............................................................. 3

I. The Presumption of Requiring Proof of

Criminal Intent Should Apply Here,

Including a “Good Faith” Defense ................. 3

II. States, Not Juries, Should Determine

What Constitutes Proper Medical Practice... 8

III. Eliminating the Good Faith Defense Is

an Anathema to Individual Rights .............. 11

Conclusion ........................................................... 12

iii

`

TABLE OF AUTHORITIES

Pages

Cases

Ass’n of Am. Physicians & Surgs. v. Clinton,

997 F.2d 898 (D.C. Cir. 1993) ........................... 2

Ass’n of Am. Physicians & Surgs. v.

Mathews, 423 U.S. 975 (1975) .......................... 1

Ass’n of Am. Physicians & Surgs. v. Tex. Med.

Bd., 627 F.3d 547 (5th Cir. 2010) ..................... 1

Jones v. United States, 529 U.S. 848 (2000) ........ 5

Liparota v. United States, 471 U.S. 419 (1985) ... 4

Morissette v. United States,

342 U.S. 246 (1952) ........................................... 4

Rehaif v. United States, 139 S. Ct. 2191 (2019)... 4

Staples v. United States, 511 U.S. 600 (1994) ..... 4

State v. Blake, 197 Wash. 2d 170, 481 P.3d

521 (2021). ......................................................... 5

State v. Naramore, 25 Kan. App. 2d 302

(1998) ......................................................... 10, 11

United States v. Gosy, No. 16-CR-46, 2019

U.S. Dist. LEXIS 31389 (W.D.N.Y. Feb. 27,

2019) .................................................................. 7

United States v. Linder, 268 U.S. 5 (1925) .......... 9

United States v. Moore,

423 U.S. 122 (1975) .............................. i, 8, 9, 10

United States v. Ruan, 966 F.3d 1101

(11th Cir. 2020) ............................................. 5, 6

United States v. Shaygan, 652 F.3d 1297

(11th Cir. 2011) ................................................. 6

United States v. Tran Trong Cuong, 18 F.3d

1132 (4th Cir. 1994) ........................................ 10

iv

United States v. X-Citement Video, Inc., 513

U.S. 64 (1994) ................................................ 4, 5

Statute

21 U.S.C. § 841(a)(1) .............................................. i

Other Authorities

Black’s Law Dictionary (10th ed. 2014) ............... 4

Davis & Schulman, “How high the cost for killing

pain?” Buffalo News (Mar. 6, 2011)

https://buffalonews.com/news/how-high-thecost-for-killing-pain-rise-in-addiction-deathsfrom-prescription-drugs-is/article_742baefd335d-5559-8956-94fbc467937f.html ................. 7

Patrick Lakamp, “‘This man is no monster,’”

Buffalo News (Oct 15, 2020)

https://buffalonews.com/news/local/crime-andcourts/this-man-is-no-monster-before-gosysentencing-patients-urgeleniency/article_42f40762-0e23-11eb-99e04f3554f89a5c.html ............................................ 7

Carrie Leonetti, “De Facto Mandatory: A

Quantitative Assessment of Reasonableness

Review after Booker,” 66 DePaul L. Rev. 51

(Fall 2016) ......................................................... 6

Votes and Proceedings of the House of

Representatives 1755–1756

(Philadelphia, 1756)

https://founders.archives.gov/documents/Fr

anklin/01-06-02-0107#BNFN-01-06-020107-fn-0005-ptr.............................................. 12

No. 20-1410

IN THE

Supreme Court of the United States

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

INTERESTS OF AMICI CURIAE1

Amicus Association of American Physicians and

Surgeons (“AAPS”) is a national association of

physicians. Founded in 1943, AAPS is dedicated to

protecting the patient-physician relationship. AAPS

has been a litigant in this Court and in other appellate

courts. See, e.g., Ass’n of Am. Physicians & Surgs. v.

Mathews, 423 U.S. 975 (1975); Ass’n of Am. Physicians

& Surgs. v. Tex. Med. Bd., 627 F.3d 547 (5th Cir. 2010);

Amici file this brief with written consent by all the parties,

including petitioner who filed blanket consent. Pursuant to Rule

37.6, counsel for amici curiae authored this brief in whole, no

counsel for a party authored this brief in whole or in part, and no

such counsel or a party made a monetary contribution intended

to fund the preparation or submission of this brief. No person or

entity – other than amici, their counsel, and the members of

Amicus AAPS – contributed monetarily to the preparation or

submission of this brief.

1

2

Ass’n of Am. Physicians & Surgs. v. Clinton, 997 F.2d

898 (D.C. Cir. 1993).

Amicus Jeffrey A. Singer, MD, FACS, is a general

surgeon who has been in private practice for 40 years

as a specialist in general surgery in the state of

Arizona. He is a Fellow of the American College of

Surgeons who received his MD from New York Medical

College and completed his general surgery

postgraduate training at Maricopa County General

Hospital in Phoenix. As a surgeon, he often needs to

prescribe medication, including opioids, to treat both

acute and chronic pain resulting from acute and

chronic surgical conditions.

The denial of the petitioner’s good faith defense in

prescribing medications has a chilling effect on the

treatment of pain, an issue in which Amici have a

strong interest.

SUMMARY OF ARGUMENT

Lengthy incarceration without proving criminal

intent is tyrannical. A 21-year imprisonment for

medicating pain deters all physicians against fully

treating patients who suffer. Undertreatment of pain

inevitably results when a robust good faith defense is

denied. Dr. Ruan acted in good faith as shown by an

unsuccessful undercover sting operation against him,

but that evidence and testimony by supportive

patients were all withheld from the jury. In addition,

the jury was misled that Dr. Ruan could have called

anyone he wanted as a witness. He was not allowed to.

Under the Eleventh Circuit decision, nearly any

physician who treats pain is at risk of an arbitrary 21year imprisonment based on a small fraction of his

prescriptions. By eliminating a bona fide good faith

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defense, the approach taken by the Eleventh Circuit

renders misled juries as the arbiters of what

constitutes legitimate medical practice. The Eleventh

Circuit decision below even begins its factual analysis

with a discussion of how much money the defendant

physician made over an extended period of time, which

hardly seems relevant and omits the high costs to

become a physician. These trials of physicians

degenerate into scapegoating and eliciting jealousy.

Mischaracterizing a doctor based on nonrepresentative prescriptions does not make him a drug

dealer, or reduce overall abuse of prescriptions.

Instead, eliminating a high-volume prescriber has the

effect of dispersing that medication among many

smaller practices without reducing the potential for

misuse. The denial of a bona fide good faith defense by

the Eleventh Circuit exacerbates the problem it

purports to address. Allowing a robust good faith

defense would safeguard legitimate practices and help

patients in pain to become productive in their lives.

ARGUMENT

Pain medications are as essential to medical

practice as rhetoric is to the practice of law. Imposing

lengthy incarcerations without allowing a strong good

faith defense violates individual rights and deters

legitimate professional practice. Good faith should be

recognized as a defense for every physician accused of

improper prescribing under federal law.

I.

The Presumption of Requiring Proof of

Criminal Intent Should Apply Here,

Including a “Good Faith” Defense.

In a recent appeal also arising from the Eleventh

Circuit, it likewise declined to require proof of full

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criminal intent in connection with a conviction under

a federal gun possession statute. Rehaif v. United

States, 139 S. Ct. 2191 (2019). This Court reversed,

just it should do here to allow a good faith defense

before incarcerating a physician for 21 years.

“We normally characterize this interpretive maxim

as a presumption in favor of ‘scienter,’ by which we

mean a presumption that criminal statutes require the

degree of knowledge sufficient to ‘mak[e] a person

legally responsible for the consequences of his or her

act or omission.’” Id. at 2195 (quoting Black’s Law

Dictionary 1547 (10th ed. 2014), brackets in decision).

This Court has often invoked that essential

presumption when interpreting criminal statutes. “In

determining Congress’ intent, we start from a

longstanding presumption, traceable to the common

law, that Congress intends to require a defendant to

possess a culpable mental state regarding ‘each of the

statutory elements that criminalize otherwise

innocent conduct.’” Rehaif, 139 S. Ct. at 2195 (quoting

United States v. X-Citement Video, Inc., 513 U.S. 64,

72 (1994)). See also Morissette v. United States, 342

U.S. 246, 256-58 (1952). “We apply the presumption in

favor of scienter even when Congress does not specify

any scienter in the statutory text.” Rehaif, 139 S. Ct.

at 2195 (citing Staples v. United States, 511 U.S. 600,

606 (1994)).

“[T]he presumption in favor of a scienter

requirement should apply to each of the statutory

elements that criminalize otherwise innocent

conduct.” X-Citement Video, Inc., 513 U.S. at 72; see

also Staples, 511 U.S. at 614-15 (1994); Liparota v.

United States, 471 U.S. 419, 426 (1985). “[W]here a

statute is susceptible of two constructions, by one of

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which grave and doubtful constitutional questions

arise and by the other of which such questions are

avoided, our duty is to adopt the latter.” See Jones v.

United States, 529 U.S. 848, 857 (2000) (inner

quotations and citations omitted). Indeed, it is

“incumbent on [courts] to read the statute to

eliminate [serious constitutional] doubts so long as

such a reading is not plainly contrary to the intent of

Congress.” X-Citement Video, Inc., 513 U.S. at 78.

Even if Congress intended for physicians to be

convicted without proof of criminal intent, that should

still not be allowed by courts. “[I]n 2021, we have

overwhelming evidence that the legislature intends

the simple possession statute to penalize innocent

nonconduct, and we have overwhelming legal

authority that this violates the due process clauses of

the state and federal constitutions.” State v. Blake, 197

Wash. 2d 170, 188, 481 P.3d 521, 531 (2021).

Yet in its decision below, the Eleventh Circuit

begins its characterization of Dr. Ruan not by

analyzing his mens rea or even his medical decisionmaking, but by citing how much money he made over

nearly a half-decade, which was not extraordinary on

an annual basis given the high cost of becoming a

physician. United States v. Ruan, 966 F.3d 1101, 112122 (11th Cir. 2020). It is typical in these trials of

physicians for their costly, extensive training to be left

out of the picture, and for cumulative income to be

presented without reference to the undercompensation for years that preceded it.

Worse, exculpatory evidence is often kept from the

jury, as done below:

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Two undercover DEA agents posed as patients of

Ruan’s … but Ruan never prescribed either patient

opioids. The government moved in limine to

exclude videos of these visits, arguing that they did

not show anything illegal and Ruan was merely

trying to prove that he practiced ‘good medicine.’

The district court agreed, so the jury never saw

them.

Ruan, 966 F.3d at 1127. Indeed, the trial court

excluded evidence of good faith prescribing by Dr.

Ruan, and instead limited his ability to call witnesses

to merely patients used by the prosecution. Id. at 1131.

The prosecution wrongly told the jury that Dr. Ruan

was allowed to call any witness. Id. at 1158.

The Eleventh Circuit has reportedly tended to be

pro-prosecution,2 but its exclusion of the good faith

defense and affirmance of the exclusion of Dr. Ruan’s

witnesses goes too far. Nothing in the proverbial War

on Drugs justifies blocking a good faith defense.

2 As one commentator observed in connection with sentencing:

The Eleventh Circuit affirmed upward variances [in

sentencing] at a rate of almost 10 times that at which it

affirmed downward variances, affirming all but 1 of the 41

upward variances that it reviewed, a relative reversal rate of

approximately 2% and reversing 7 of the 34 downward

variances that it reviewed, a relative reversal rate of

approximately 21%.

Carrie Leonetti, “De Facto Mandatory: A Quantitative

Assessment of Reasonableness Review after Booker,” 66 DePaul

L. Rev. 51, 76 (Fall 2016) (footnotes omitted). Anecdotally, when

a district court publicly reprimanded prosecutors for misconduct

and applied the Hyde Amendment to reimburse an exonerated

defendant, on appeal the Eleventh Circuit reversed in order to

hold for the prosecution. United States v. Shaygan, 652 F.3d 1297,

1302 (11th Cir. 2011).

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Far from helping patients, the elimination of a top

prescriber harms them. Dr. Eugene Gosy in the

Buffalo area, for example, was criticized in the media

for being the top prescriber of controlled substances in

New York. Davis & Schulman, “How high the cost for

killing pain?” Buffalo News (Mar. 6, 2011).3 But he had

completely won one malpractice case and partially

prevailed in another. After he was publicized as the

top pain prescriber in the state, he was ultimately

indicted. In a circuit that allows only a weak, objective

good faith defense, the trial court denied Dr. Gosy’s

motion to dismiss for lack of alleged criminal intent.

United States v. Gosy, No. 16-CR-46, 2019 U.S. Dist.

LEXIS 31389 (W.D.N.Y. Feb. 27, 2019). Few

physicians in the area were willing to treat the

patients for pain after Dr. Gosy’s highly publicized

indictment, and his many patients were stranded

without medical care. His patients sent 30,000-plus

words in support of him to the sentencing judge after

a plea bargain. See Patrick Lakamp, “‘This man is no

monster,’” Buffalo News (Oct 15, 2020).4

Incarceration of physicians who treat pain does not

eliminate the pain and the need to treat it. A robust

good faith defense is essential to protect patient access

to prescriptions written in good faith.

https://buffalonews.com/news/how-high-the-cost-for-killingpain-rise-in-addiction-deaths-from-prescription-drugsis/article_742baefd-335d-5559-8956-94fbc467937f.html (viewed

Dec. 25, 2021).

4 https://buffalonews.com/news/local/crime-and-courts/this-manis-no-monster-before-gosy-sentencing-patients-urgeleniency/article_42f40762-0e23-11eb-99e0-4f3554f89a5c.html

(viewed Dec. 25, 2021).

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II. States, Not Juries, Should Determine

What Constitutes Proper Medical Practice.

Juries lack the training necessary to delineate the

boundaries of medicine and then convict based on it.

Yet that is the approach taken by the Eleventh Circuit,

contrary to the teachings of this Court in United States

v. Moore, 423 U.S. 122 (1975), and several other

circuits. States, not federal juries, are who should be

assessing the boundaries of medical treatment of pain.

Allowing prosecutions of physicians for being the

highest prescribers merely ensures, after repetition of

that approach, that access by patients to such

medications will become exceedingly difficult or

impossible. Rather than resort to draconian 21-year

prison sentences for frequent prescribers, a more

sensible approach would be simply to suspend a DEA

registration while providing full due process for the

physician and listening to his supportive patients.

By eliminating a meaningful good faith instruction,

the Eleventh Circuit irrationally usurps state

authority over the regulation of medicine. The

approach of federal prosecution of a physician who

complied with governing state authority is contrary to

federalism and, when denying the defense of good

faith, also contravenes due process.

In Moore, the Supreme Court upheld the conviction

of a physician for prescribing drugs because, unlike

here, the federal remedy of revocation of his DEA

registration was not a viable option. There, unlike

here, “[r]egistration was mandatory for practitioners

with state licenses” except under inapplicable

exceptions. Id. at 138 n.15. The Moore Court approved

of how the trial judge:

9

instructed the jury that it had to find ‘beyond a

reasonable doubt that a physician, who knowingly

or intentionally, did dispense or distribute

[methadone] by prescription, did so other than in

good faith for detoxification in the usual course of

a professional practice and in accordance with a

standard of medical practice generally recognized

and accepted in the United States.’

Id. at 138-39 (emphasis added). The Moore jury was

thus expressly instructed to convict or acquit based on

its finding about good faith. See also United States v.

Linder, 268 U.S. 5, 18 (1925) (acquittal required if the

jury found that defendant physician acted “in good

faith” in prescribing narcotics).

Most innovative physicians advance medical

practice contrary to “generally recognized and

accepted” treatments, but that is not the proper test

for criminal prosecution. Good faith is. Nothing in the

Moore precedent or common sense countenances

usurping state authority by federal juries.

In Moore, the defendant conceded that “he did not

observe generally accepted medical practices.” Id. at

126. The Court observed that:

“[i]n billing his patients he used a ‘sliding-fee scale’

pegged solely to the quantity prescribed, rather

than to the medical services performed. The fees

ranged from $ 15 for a 50-pill prescription to $ 50

for 150 pills. … When a patient entered the office

he was given only the most perfunctory

examination. ….

Id. Unlike the trial below, the flagrant practices in

Moore were plainly non-medical in nature. The issue

of what constitutes valid medical practice was

10

essentially conceded in Moore, rather than put to a

jury.

Other Circuits have long recognized some type of a

good faith defense. See, e.g., United States v. Tran

Trong Cuong, 18 F.3d 1132, 1137 (4th Cir. 1994). That

Circuit approved a jury instruction declaring that if a

“doctor dispenses a drug in good faith in medically

treating a patient, then the doctor has dispensed the

drug for a legitimate medical purpose in the usual

course of medical practice. That is, he has dispensed

the drug lawfully.” 18 F.3d at 1138 (emphasis added).

That approved jury instruction continued:

Good faith in this context means good intentions

in the honest exercise of best professional

judgment as to a patient’s need. It means the

doctor acted in accordance with what he

believed to be proper medical practice. If you

find the defendant acted in good faith in

dispensing the drug, then you must find him

not guilty.

Id. (emphasis added).

The Eleventh Circuit’s contrary standard is similar

to one corrected by the Court of Appeals of Kansas in

the conviction and sentence of Dr. Stan Naramore, for

administering large quantities of painkillers to two

patients who subsequently died. In Dr. Naramore’s

case “the jury apparently found, beyond a reasonable

doubt, that Dr. Naramore’s actions were totally

outside appropriate medical practice.” State v.

Naramore, 25 Kan. App. 2d 302, 322 (1998). From that

finding the jury concluded that Dr. Naramore had

homicidal intent. “Having found that, it then

11

apparently found there was no reasonable doubt that

the source of his actions was homicidal intent.” Id.

But the Court of Appeals of Kansas properly

overturned that conviction, finding a bona fide medical

dispute about criminal intent that negates a

conviction. “[T]here is a reason why there has yet to be

in Anglo-American law an affirmed conviction of a

physician for homicide arising out of medical

treatment based on such highly controverted expert

evidence as here.” Id. The Court then ordered entry of

a verdict of acquittal. Id. at 323.

Juries are not trained to establish the outer limits

of a highly skilled profession. The proper task for the

jury is to determine whether defendant was acting in

good faith, rather than try to ascertain the boundaries

of his skilled profession. It is the ultimate injustice for

a compassionate and dedicated physician to be

imprisoned for the rest of his active life for practicing

medicine in a manner he thought best, based on his

extensive training, for his patients.

III.

Eliminating the Good Faith Defense Is

an Anathema to Individual Rights.

In contrast with other legal systems, ours is one

based on individual rights. The Bill of Rights, enacted

as promised to obtain ratification of the original

Constitution, leaves no doubt about our foundation.

A dystopia results when the most basic individual

right – innocence amid a lack of criminal intent – is

infringed upon under the guise of a so-called War on

Drugs. The federal government can revoke the DEA

registration at any time to stop a physician’s

prescription of controlled medications. State medical

12

boards can and do impose summary suspensions of

physicians licensed to practice. A 21-year

incarceration of a physician by denying him the basic

defense of good faith is not justifiable on any rationale.

Benjamin Franklin famously stated, “Those who

would give up essential Liberty, to purchase a little

temporary Safety, deserve neither Liberty nor Safety.”

Votes and Proceedings of the House of Representatives

1755–1756, pp. 19–21 (Philadelphia, 1756).5

Eliminating a prescriber scatters the volume of his

prescriptions elsewhere, which increases the overall

potential for misuse of controlled substances. Dr.

Franklin was spot on: safety is not enhanced by

sacrificing liberty to convict physicians who treat pain.

CONCLUSION

For the foregoing reasons and those stated by

petitioner and the other amicus briefs in his support,

this Court should fully reverse his conviction.

Respectfully submitted,

ANDREW L. SCHLAFLY

939 OLD CHESTER ROAD

FAR HILLS, NJ 07931

(908) 719-8608

aschlafly@aol.com

Counsel for Amici Curiae

Dated: December 27, 2021

https://founders.archives.gov/documents/Franklin/01-06-020107#BNFN-01-06-02-0107-fn-0005-ptr (viewed Dec. 24, 2021).

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