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
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