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

Supreme Court briefDec 27, 2021

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Nos. 20-1410 & 21-5261

IN THE

Supreme Court of the United States

————

XIULU RUAN,

Petitioner,

v.

UNITED STATES,

Respondent.

————

SHAKEEL KAHN,

Petitioner,

v.

UNITED STATES,

Respondent.

————

On Writs of Certiorari to the

United States Courts of Appeals

for the Tenth and Eleventh Circuits

————

BRIEF OF AMICUS CURIAE THE NATIONAL

ASSOCIATION OF CRIMINAL DEFENSE

LAWYERS IN SUPPORT OF PETITIONERS

————

DAVID OSCAR MARKUS

NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS

1660 L Street NW

Washington, D.C. 20036

(202) 872-8600

JEFFREY S. BEELAERT

Counsel of Record

STEIN MITCHELL BEATO &

MISSNER LLP

901 Fifteenth St., NW

Suite 700

Washington D.C. 20005

(202) 737-7777

jbeelaert@steinmitchell.com

Counsel for Amicus Curiae

December 27, 2021

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

TABLE OF CONTENTS

Page

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

ii

STATEMENT OF INTEREST ............................

1

SUMMARY OF ARGUMENT .............................

2

ARGUMENT ........................................................

3

I. The overuse and abuse of federal criminal law threatens innocent conduct .........

3

A. Overcriminalization is a growing

problem that this Court continues to

confront ................................................

3

B. The Controlled Substances Act only

criminalizes activities that fall outside the usual course of a doctor’s

professional practice ............................

6

II. This Court should strictly enforce the

mental state that Congress required to

impose criminal liability under the

Controlled Substances Act .......................

8

CONCLUSION ....................................................

11

(i)

ii

TABLE OF AUTHORITIES

CASES

Page(s)

Bond v. United States,

572 U.S. 844 (2014) ...................................

5

Carter v. United States,

530 U.S. 255 (2000) ...................................

8

Dennis v. United States,

341 U.S. 494 (1951) ...................................

8

Elonis v. United States,

575 U.S. 723 (2015) ...................................

8

Flores-Figueroa v. United States,

556 U.S. 646 (2009) ...................................

8

Kelly v. United,

140 S. Ct. 1565 (2020) ...............................

4, 5

Lanzetta v. New Jersey,

306 U.S. 451 (1939) ...................................

8

Liparota v. United States,

471 U.S. 419 (1985) ...................................

7, 9

Morisette v. United States,

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

8

Rehaif v. United States,

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

6

Sykes v. United States,

564 U.S. 1 (2011) .......................................

4

United States v. Hurwitz,

459 F.3d 463 (4th Cir. 2006) .....................

7

United States v. Kohli,

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

7

iii

TABLE OF AUTHORITIES—Continued

Page(s)

United States v. Moore,

423 U.S. 122 (1975) ................................... 6, 7, 9

United States v. Outler,

659 F.2d 1306 (5th Cir. 1981) ...................

9

United States v. Sheridan,

329 U.S. 379 (1946) ...................................

8

Yates v. United States,

574 U.S. 528 (2015) ...................................

4

STATUTES

An Act for the Punishment of Certain

Crimes against the United States,

Ch. 9, 1 Stat. 112–19 (1790) .....................

3

Controlled Substances Act:

21 U.S.C. § 801 ..........................................

6, 9

21 U.S.C. § 812 ..........................................

6

21 U.S.C. § 841 .........................................passim

OTHER AUTHORITIES

Christopher Brown, DOJ Keeps Up Pressure on Doctors Who Prescribe Opioids

Illegally, Bloomberg Law (Jan. 24, 2020) ...

10

Gary Fields & John R. Emshwiller,

Many Failed Efforts to Count Nation’s

Federal Criminal Laws, Wall St. J., July

23, 2011 .....................................................

3

iv

TABLE OF AUTHORITIES—Continued

Page(s)

Heritage Foundation, Overcriminalization,

https://www.heritage.org/crime-and-justi

ce/heritage-explains/overcriminalization....

4

Paul J. Larkin, Jr., Public Choice Theory

and Overcriminalization, 36 Harv. J.L. &

Pub. Pol’y 715 (2013) ................................

4

Erik Luna, The Overcriminalization Phenomenon, 54 Am. U. L. Rev. 703 (2005)....

4

Opioid Crisis, Human Res. & Services

Admin., https://www.hrsa.gov/opioids .....

10

Overcriminalization, NACDL, https://www.

nacdl.org/Landing/Overcriminalization ....

4

Press Release, U.S. Attorney’s Office,

District of Columbia, Doctor Licensed in

the District of Columbia and Virginia

Charged With Unlawful Distribution of

Controlled Substances (Sept. 17, 2021) ...

10

Paul H. Robinson, A Brief History of

Distinctions in Criminal Culpability, 31

Hastings L.J. 815, 821–50 (1980) .............

8

Brian W. Walsh & Tiffany M. Joslyn, Nat’l

Ass’n of Criminal Def. Lawyers, Without

Intent: How Congress Is Eroding the Criminal Intent Requirement in Federal Law

(2010), www.nacdl.org/withoutintent ......

4

STATEMENT OF INTEREST1

The National Association of Criminal Defense Lawyers

is a nonprofit, voluntary professional bar association

that works on behalf of criminal defense attorneys to

ensure justice and due process for those accused of

crime or misconduct. Founded in 1958, NACDL has a

nationwide membership of many thousands of direct

members and about 40,000 total members with affiliates. NACDL is the only nationwide professional bar

association for private criminal-defense lawyers, public

defenders, military defense counsel, law professors,

and judges.

Consistent with its mission of advancing the proper,

efficient, and fair administration of justice, NACDL

files several amicus briefs each year in the United

States Supreme Court and other state and federal

courts, all aimed at providing assistance in cases that

present issues of broad importance to criminal defendants, criminal defense lawyers, and the criminal justice

system as a whole.

1

Pursuant to Supreme Court Rule 37.6, amicus represents

that this brief was not authored in whole or in part by any party

or counsel for any party. No person or party other than amicus

or their counsel made a monetary contribution to the preparation

or submission of this brief. The parties have provided written

consent to the filing of amicus curiae briefs. See S. Ct. R. 37.3.

2

SUMMARY OF ARGUMENT

Our country continues to struggle with widespread

overdoses and deaths caused by the rampant abuse of

opioids. To combat this ongoing crisis, the federal

government aggressively has prosecuted doctors and

medical professionals alleged to have illegally diverted

addictive pills into the black market. A common

narrative in these cases is that doctors have fueled the

crisis by overprescribing controlled substances as a

violation of federal criminal law.

Of course, some doctors have prescribed opioids to

patients for illegal reasons. Yet, many other doctors

have issued well-intentioned prescriptions to treat

patients for a variety of pain syndromes consistent

with governing standards of professional care. Criminal

liability depends on scienter. No court should interpret federal law to impose criminal penalties when a

defendant doctor has acted in good faith and the

government has not demonstrated the specific mental

state that Congress has required.

The Controlled Substances Act imposes no criminal

liability on doctors for lawfully prescribing controlled

substances in the normal course of treating patients.

That should come as no surprise. Society benefits

when doctors prescribe drugs for legitimate medical

purposes authorized by the Act.

Criminal liability attaches only when defendant

doctors knowingly prescribe controlled substances to

patients in circumstances not authorized by Congress.

Consequently, the government must demonstrate that

a defendant doctor knowingly prescribed drugs in

illegal circumstances. When the government alleges

that a doctor has violated of 21 U.S.C. § 841, lower

3

courts have erred in concluding that a doctor’s good

faith is not relevant to criminal liability.

ARGUMENT

I. The overuse and abuse of federal criminal

law threatens innocent conduct.

This Court has rejected creative attempts by the

government and lower courts to expand the scope of

federal criminal statutes beyond their plain terms.

And it should do so again here.

The Controlled Substances Act prohibits a doctor

from knowingly prescribing a controlled substance

outside of the usual course of professional practice.

Yet the Act does not criminalize well-intentioned

conduct when a doctor—in good faith—prescribes

drugs to treat patients with legitimate medical needs.

A. Overcriminalization is a growing problem that this Court continues to confront.

Since the earliest days of our nation, Congress

has enacted federal criminal laws. The first criminal

legislation listed only thirty federal offenses. See An

Act for the Punishment of Certain Crimes against the

United States, Ch. 9, 1 Stat. 112–19 (1790). Yet, from

that humble beginning, the number of federal criminal

offenses has skyrocketed over the years. Today,

tallying the total number of federal criminal offenses

scattered throughout the United States Code is an

exercise no one seems willing to take—not even the

federal employees charged with prosecuting those

crimes. See, e.g., Gary Fields & John R. Emshwiller,

Many Failed Efforts to Count Nation’s Federal

Criminal Laws, Wall St. J., July 23, 2011.

Estimates suggest that nearly 5,000 federal statutes

and more than 300,000 federal regulations contain

4

potential criminal penalties.2 It should come as “no

surprise that as the volume increases, so do the number

of imprecise laws.” Sykes v. United States, 564 U.S. 1,

35 (2011) (Scalia, J., dissenting). Indeed, Americans

face real problems stemming from “overcriminalization”

and the imposition of “excessive punishment” from

federal crimes. Yates v. United States, 574 U.S. 528,

569 (2015) (Kagan, J., dissenting).3 This Court should

not condone the misapplication of federal criminal laws.

In recent years, this Court has confronted attempts

by the government to shoehorn misconduct into illfitting federal criminal statutes. For example, public

officials jeopardized the safety of local citizens when

they changed the flow of traffic into New York City for

no reason other than political payback. The government urged this Court to accept its broad interpretation

of what it viewed to be relevant federal criminal

statutes. But, because the payback scheme “did not

aim to obtain money or property,” this Court refused

to conclude that the defendants had “violated the

federal-program fraud or wire fraud laws.” Kelly v.

United, 140 S. Ct. 1565, 1574 (2020). To be sure, the

2

Heritage Foundation, Overcriminalization, https://www.heri

tage.org/crime-and-justice/heritage-explains/overcriminalization.

3

See also Paul J. Larkin, Jr., Public Choice Theory and

Overcriminalization, 36 Harv. J.L. & Pub. Pol’y 715 (2013); Brian

W. Walsh & Tiffany M. Joslyn, Nat’l Ass’n of Criminal Def.

Lawyers, Without Intent: How Congress Is Eroding the Criminal

Intent Requirement in Federal Law (2010), www.nacdl.org/

withoutintent (report detailing a study of federal criminal

lawmaking and the failure of Congress to include meaningful

intent requirements in criminal law proposals); Erik Luna, The

Overcriminalization Phenomenon, 54 Am. U. L. Rev. 703 (2005);

Overcriminalization, NACDL, https://www.nacdl.org/Landing/

Overcriminalization (listing additional resources).

5

Court recognized that “not every corrupt act by state

or local officials is a federal crime.” Id.

Similarly, this Court rejected the government’s

“expansive reading” of a criminal statute enacted by

Congress to fulfill the United States’ obligations under

the international Convention on Chemical Weapons.

Bond v. United States, 572 U.S. 844, 866 (2014).

Congress provided no clear indication that the criminal provisions of the Chemical Weapons Convention

Implementation Act extended to actions taken by a

jilted wife who attempted to injure her husband’s lover

by spreading chemicals on a car door, a mailbox, and a

doorknob. Id. at 848. The Court thus concluded that

the criminal provision did not apply to “the unremarkable local offense” that the federal government sought

to prosecute. Id.

Once again, the Court in this case must consider the

proper scope of federal criminal liability. In doing so,

this Court should reject any interpretation of the

Controlled Substances Act that blurs the line between

criminal liability and otherwise innocent conduct by

doctors. Congress never intended to prohibit doctors

from prescribing controlled substances in good faith to

treat patients with legitimate medical needs.

6

B. The Controlled Substances Act only criminalizes activities that fall outside the usual

course of a doctor’s professional practice.

When Congress enacted the Controlled Substances

Act, it recognized that many of the drugs and substances regulated under the statute “have a useful and

legitimate medical purpose and are necessary to maintain the health and general welfare of the American

people.” 21 U.S.C. § 801(1). Congress therefore established five schedules to classify drugs and substances

based on their accepted medical use for treatment, the

relative potential for abuse, and the likelihood of

dependence if abused. See id. § 812.

Scienter requirements advance fundamental principles of criminal law by helping courts “separate those

who understand the wrongful nature of their act from

those who do not.” Rehaif v. United States, 139 S. Ct.

2191, 2196 (2019) (internal quotation marks omitted).

Congress prohibited a doctor from “knowingly or

intentionally” dispensing a controlled substance except

as authorized by relevant provisions of the Controlled

Substances Act. 21 U.S.C. § 841(a). Violations of this

provision may result in felony convictions. United

States v. Moore, 423 U.S. 122, 134 (1975). Congress

specifically criminalized “the diversion of drugs from

legitimate channels to illegitimate channels,” id. at

135, recognizing that no doctor may knowingly act “as

a drug pusher,” id. at 138 (internal quotation marks

omitted).

But Congress did not prohibit doctors from prescribing controlled substances in good faith for legitimate

medical purposes. As this Court recognized, Congress

did not intend for the criminal provisions of the

Controlled Substances to “impede legitimate research.”

7

Id. at 143. Nor did Congress seek to deprive physicians from relying on their “reasonable discretion in

treating patients and testing new theories” within the

medical field. Id.

This Court consequently held that the government

may prosecute doctors under Section 841 only “when

their activities fall outside the usual course of professional practice.” Id. at 124. As the jury in Moore was

properly instructed: a doctor cannot “be convicted if

he merely made ‘an honest effort’ to prescribe [controlled substances] in compliance with an accepted

standard of medical practice.” Id. at 142 n.20.

Relying on Moore, lower courts consistently have

concluded “that it is proper to instruct juries that a

doctor should not be held criminally liable” under

Section 841 “if the doctor acted in good faith” while

prescribing controlled substances to treat patients.

United States v. Hurwitz, 459 F.3d 463, 477 (4th Cir.

2006) (collecting cases). This Court should reaffirm

that conclusion here.

A doctor exercising professional judgment and acting

in good faith cannot be found criminally liable for

“knowingly and intentionally” prescribing controlled

substances outside of the usual course of professional

medical practice. United States v. Kohli, 847 F.3d 483,

494 (7th Cir. 2017). To interpret Section 841 “otherwise would be to criminalize a broad range of apparently

innocent conduct” by reading the “knowledge-of-illegality requirement” out of the plain statutory text

enacted by Congress. Liparota v. United States, 471

U.S. 419, 426 (1985). There is no good reason for this

Court to adopt that interpretation.

8

II. This Court should strictly enforce the

mental state that Congress required to

impose criminal liability under the

Controlled Substances Act.

By their plain terms, criminal statutes should define

exactly what conduct will render a person liable to

criminal penalties. Lanzetta v. New Jersey, 306 U.S.

451, 453 (1939). The government traditionally must

prove both “an evil-meaning mind” and “an evil-doing

hand” before it may impose a criminal punishment.

Morisette v. United States, 342 U.S. 246, 251 (1952).

Standing alone, neither element justifies criminal

liability.

“The existence of a mens rea is the rule of, rather

than the exception to, the principles of Anglo-American

criminal jurisprudence.” Dennis v. United States, 341

U.S. 494, 500 (1951). Indeed, courts have recognized

a mens rea requirement as a component of criminal

law for centuries. See, e.g., Paul H. Robinson, A Brief

History of Distinctions in Criminal Culpability, 31

Hastings L.J. 815, 821–50 (1980) (tracing the development of the legal principle that a criminal defendant

could be convicted only upon proof of a guilty mind).

The mens rea requirement separates criminal misconduct from otherwise innocent conduct. Carter v.

United States, 530 U.S. 255, 269 (2000); accord Elonis

v. United States, 575 U.S. 723, 737 (2015).

No court may “rewrite the words” used by Congress

in defining the scope of federal criminal liability.

United States v. Sheridan, 329 U.S. 379, 389 (1946).

When Congress uses the word “knowingly” in a

criminal statute, federal courts must interpret that

statutory term consistent with its ordinary usage.

Flores-Figueroa v. United States, 556 U.S. 646, 652

(2009). This Court should not interpret a federal

9

criminal statute to allow the conviction of an

individual who acted without the requisite mental

intent required by Congress to establish a criminal

violation of the law.

Under the Controlled Substances Act, Congress

rationally “exempted” from criminal liability the

lawful acts taken by doctors in the normal course of

treating patients. Moore, 423 U.S. at 131. That makes

imminent sense, as doctors should be allowed to

prescribe controlled substances for legitimate medical

purposes to maintain the health and welfare of their

patients. See 21 U.S.C. § 801(1).

Put another way, Congress contemplated that a

doctor “knowingly or intentionally” may prescribe controlled substances “as authorized” under the relevant

provisions of the Controlled Substances Act. Id. § 841(a).

Such conduct “shall be unlawful” only when the doctor

“knowingly or intentionally” prescribes a controlled

substances in circumstances not authorized by Congress.

See id. To establish criminal liability the government

therefore must demonstrate “that the defendant knew

his conduct to be unauthorized by statute.” Liparota,

471 U.S. at 425.

The government must prove that a doctor prescribed

controlled substances for no “legitimate medical

reason” to impose criminal liability as a violation of

Section 841(a) of the Controlled Substances Act.

United States v. Outler, 659 F.2d 1306, 1309 (5th Cir.

1981). The “lack of a legitimate medical reason is as

essential to the offense charged against [a doctor] as

the requisite mens rea.” Id. (emphasis added). This

Court should reinforce that requirement here.

Understandably, many doctors fear criminal sanctions when prescribing controlled substances especially

10

as our nation “is in the midst of an unprecedented

opioid epidemic.” Opioid Crisis, Human Res. & Services

Admin., https://www.hrsa.gov/opioids. The Federal

Bureau of Investigations has announced that it continues

to work with law enforcement agencies to investigate

medical professionals and doctors “who provide illegal

prescriptions and distribute controlled substance medications that fuel the opioid epidemic in our country.”4

Medical professionals and doctors “can find themselves

stuck in the middle between aggressive prosecutors

and patients in need of pain treatment.” Christopher

Brown, DOJ Keeps Up Pressure on Doctors Who

Prescribe Opioids Illegally, Bloomberg Law (Jan. 24,

2020).5 It is important for this Court to enforce the

statutory mens rea requirement in determining whether

a doctor prescribed controlled substances without a

legitimate medical purpose or beyond the bounds of

accepted medical practice. The lower courts erred in

concluding that good faith is not relevant to criminal

liability when the government alleges that a doctor

has violated of 21 U.S.C. § 841.

4

Press Release, U.S. Attorney’s Office, District of Columbia,

Doctor Licensed in the District of Columbia and Virginia Charged

With Unlawful Distribution of Controlled Substances (Sept. 17,

2021), https://www.justice.gov/usao-dc/pr/doctor-licensed-districtcolumbia-and-virginia-charged-unlawful-distribution-controlled.

5

Available at https://news.bloomberglaw.com/health-law-andbusiness/doj-keeps-up-pressure-on-doctors-who-prescribe-opioidsillegally.

11

CONCLUSION

For the foregoing reasons, the judgments of the

Court of Appeals for the Tenth and Eleventh Circuits

should be reversed.

Respectfully submitted,

DAVID OSCAR MARKUS

JEFFREY S. BEELAERT

NATIONAL ASSOCIATION OF

Counsel of Record

CRIMINAL DEFENSE LAWYERS STEIN MITCHELL BEATO &

1660 L Street NW

MISSNER LLP

Washington, D.C. 20036

901 Fifteenth St., NW

(202) 872-8600

Suite 700

Washington D.C. 20005

(202) 737-7777

jbeelaert@steinmitchell.com

Counsel for Amicus Curiae

December 27, 2021

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.

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