Opposition Brief — Shakeel Kahn, Petitioner v. United States

No. 21-5261

________________________________________________________________

________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

_______________

SHAKEEL KAHN, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

BRIAN H. FLETCHER

Acting Solicitor General

Counsel of Record

KENNETH A. POLITE, JR.

Assistant Attorney General

DAVID M. LIEBERMAN

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

________________________________________________________________

________________________________________________________________

QUESTIONS PRESENTED

1.

Whether the district court abused its discretion in

declining a requested jury instruction on the ground that it would

have

required

acquittal

on

charges

of

the

unauthorized

distribution of controlled substances, in violation of 21 U.S.C.

841, based on petitioner’s own subjective view of the usual course

of professional practice.

2.

Whether the district court abused its discretion in

declining to instruct the jury in furtherance of petitioner’s

theory that the prescription of opioids outside the usual course

of

professional

practice

is

insulated

from

charges

of

the

unauthorized distribution of controlled substances, in violation

of 21 U.S.C. 841, so long as a defendant can assign a general

“legitimate medical purpose” to his activities.

(I)

RELATED PROCEEDINGS

United States District Court (D. Wyo.):

United States v. Kahn, No. 17-cr-29 (Aug. 19, 2019)

United States Court of Appeals (10th Cir.):

United States v. Kahn, No. 19-8054 (Feb. 25, 2021)

(II)

IN THE SUPREME COURT OF THE UNITED STATES

_______________

No. 21-5261

SHAKEEL KAHN, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

OPINION BELOW

The opinion of the court of appeals (Pet. App. A1-A40) is

reported at 989 F.3d 806.

JURISDICTION

The judgment of the court of appeals was entered on February

25, 2021.

By order of March 19, 2020, this Court extended the

deadline for all petitions for writs of certiorari due on or after

the date of the Court’s order to 150 days from the date of the

lower court judgment, order denying discretionary review, or order

denying a timely petition for rehearing.

The petition for a writ

2

of

certiorari

was

filed

on

July

26,

2021

(Monday).

The

jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District Court

for the District of Wyoming, petitioner was convicted on one count

of conspiring to dispense and distribute controlled substances

resulting in death, in violation of 21 U.S.C. 841(a)(1), (b)(1)(C),

and (b)(2); one count of possessing a firearm in furtherance of a

federal

drug

trafficking

crime,

in

violation

of

18

U.S.C.

924(c)(1); eight counts of unlawfully dispensing a controlled

substance, in violation of 21 U.S.C. 841(a)(1) and (b)(1)(C); three

counts

of

possessing

a

controlled

substance

with

intent

to

distribute, in violation of 21 U.S.C. 841(a)(1) and (b)(1)(C);

five counts of unlawfully using a communications facility in

connection with a controlled-substance offense, in violation of 21

U.S.C. 843(b); one count of engaging in a continuing criminal

enterprise, in violation of 21 U.S.C. 848(a), (b), and (c); and

two counts of laundering the proceeds of illegal activity, in

violation of 18 U.S.C. 1957.

Pet. App. A41-A42.

The district

court sentenced petitioner to 300 months of imprisonment, to be

followed by five years of supervised release.

The court of appeals affirmed.

1.

Petitioner

was

a

Id. at A44-A45.

Id. at A1-A40.

licensed

specialized in pain management.

physician

who

ostensibly

Pet. App. A3-A4.

In 2008,

3

petitioner

started

a

medical

practice

in

Arizona,

where

he

regularly prescribed controlled substances, including oxycodone,

alprazolam, and carisoprodol.

Ibid.

Petitioner routinely performed only a perfunctory examination

–- or no examination at all –- before prescribing controlled

substances for a patient.

See Gov’t C.A. Br. 8.

Petitioner also

falsified notes in medical charts indicating that he had seen

patients in person, completed assessments, made referrals, and

collected urine samples, when in reality he had taken none of those

actions.

Id. at 3-4.

And in 2013, petitioner began requiring his

patients to sign a “drug addiction statement” attesting that

petitioner was not a “drug dealer,” that the patient was not an

“addict[],” and that the patient would be liable to petitioner for

$100,000 in the event that a civil or criminal action was brought

against petitioner related to that patient’s treatment.

Pet. App.

A4-A5.

Petitioner priced his medical services based on the number of

pills he prescribed to a patient:

the more pills petitioner

prescribed, the more he charged a patient for an office visit.

Pet. App. A4.

If a patient could not afford to pay as much as

petitioner requested, petitioner prescribed fewer pills or would

not write a prescription at all.

Ibid.

And petitioner sometimes

discounted his fees when a patient referred a new customer to the

clinic.

Gov’t C.A. Br. 8.

Petitioner generally operated his

4

practice on a “cash-only” basis, although he occasionally accepted

firearms and other personal property as payment.

Pet. App. A4.

At times, petitioner’s brother, who managed petitioner’s Arizona

practice, met patients in parking lots to exchange prescriptions

written by petitioner for cash.

Id. at A3, A5.

In late 2012, pharmacies in the area surrounding petitioner’s

Arizona practice began refusing to fill prescriptions written by

petitioner.

Pet. App. A5.

In 2015, while continuing to see

patients at his Arizona practice, petitioner opened a second

practice in Wyoming. Ibid. Petitioner invited some of his Arizona

patients to travel to Wyoming, where his prescriptions would be

easier to fill, and some patients did so.

5.

Ibid.; Gov’t C.A. Br.

And in 2015, petitioner wrote high-dose prescriptions for

oxycodone, carisoprodol, and alprazolam for a young woman who paid

him $1250.

Gov’t C.A. Br. 5-6.

She filled the prescriptions and

died of an oxycodone overdose two days later.

In

2016,

practices,

Wyoming

the

while

Drug

Division

investigating

Enforcement

of

Id. at 6.

petitioner’s

Administration

Criminal

prescribing

(DEA)

Investigation

and

the

intercepted

communications indicating that petitioner charged patients a $500minimum fee for writing prescriptions.

Around

the

petitioner’s

same

time,

Arizona

officers

and

Ibid.; see Pet. App. A5-A6.

Wyoming

See Gov’t C.A. Br. 6.

executed

search

residences

and

warrants

at

businesses.

The officers seized patient files,

5

money counters, ledgers, $1 million in cash, automobiles, and 49

firearms.

Gov’t C.A. Br. 6; see Pet. App. A6.

2.

In 2017, a federal grand jury returned an indictment

charging petitioner with one count of conspiring to dispense and

distribute controlled substances resulting in death, in violation

of

21

U.S.C.

841(a)(1),

(b)(1)(C),

and

(b)(2);

one

count

of

possessing a firearm in furtherance of a federal drug trafficking

crime,

in

violation

of

18

U.S.C.

924(c)(1);

eight

counts

of

unlawfully dispensing a controlled substance, in violation of 21

U.S.C. 841(a)(1) and (b)(1)(C); three counts of possessing a

controlled substance with intent to distribute, in violation of 21

U.S.C. 841(a)(1) and (b)(1)(C); five counts of unlawfully using a

communications facility in connection with a controlled-substance

offense, in violation of 21 U.S.C. 843(b); one count of engaging

in a continuing criminal enterprise, in violation of 21 U.S.C.

848(a), (b), and (c); and two counts of laundering the proceeds of

illegal

activity,

in

violation

of

18

U.S.C.

1957.

Second

Superseding Indictment 1-17.

At

trial,

expert

witnesses

testified

that

petitioner

excessively prescribed high-dose opioids and prescribed opioids in

dangerous combinations without properly monitoring or counseling

patients.

Gov’t C.A. Br. 6-7.

Those experts further testified

that petitioner failed to follow guidance from the Centers for

Disease Control regarding opioid prescriptions and that he failed

6

to consider alternative treatments.

Id. at 7.

And the experts

observed that petitioner failed to document legitimate medical

reasons for prescriptions and prescribed controlled substances to

patients without visits –- while falsely indicating in patient

files that visits had, in fact, occurred.

Ibid.

On the basis of

that and other evidence, the experts testified that petitioner’s

prescriptions were issued outside the usual course of medical

practice and were not issued for legitimate medical reasons.

Id.

at 6.

At the close of trial, the district court instructed the jury

that in order to return a guilty verdict on the conspiracy count

and the counts for unlawfully dispensing a controlled substance,

it was required to find, inter alia, that petitioner “knowingly or

intentionally distributed or dispensed the controlled substance

outside the usual course of professional medical practice or

without a legitimate medical purpose.”

27.

The

court

provided

that

6/21/19 Tr. 30; see id. at

instruction

over

petitioner’s

objection; petitioner asked the court to instruct the jury that he

could only be convicted on those counts if his actions were taken

both outside the usual course of professional medical practice and

without a legitimate medical purpose.

Pet. App. A62-A63.

Petitioner also proposed that the jury be instructed that

“[t]he good faith of a defendant, whether or not objectively

reasonable, is a complete defense to the crimes charged, because

7

good faith on the part of a defendant is inconsistent with specific

intent, which is an essential part of the charges.”

694, at 10 (Apr. 25, 2019).

D. Ct. Doc.

The district court declined to give

petitioner’s particular proposed instruction, instead instructing

the jury that

[t]he good faith of [petitioner] is a complete defense to the

charges in [the conspiracy count and the eight counts of

unlawfully dispensing a controlled substance], because good

faith on the part of [petitioner] would be inconsistent with

knowingly and intentionally distributing and/or dispensing

controlled

substances

outside

the

usual

course

of

professional practice and without a legitimate medical

purpose, which is an essential part of the charges.

Pet. App. A26-A27 (citation omitted). The court further instructed

that “‘[g]ood faith’ connotes an attempt to act in accordance with

what a reasonable physician should believe to be proper medical

practice.” Id. at A27 (citation omitted). And the court explained

to the jury that “[t]he good faith defense requires the jury to

determine

whether

[petitioner]

acted

in

an

prescribe for patients’ medical conditions in

honest

effort

to

accordance with

generally recognized and accepted standards of practice.”

Ibid.

(citation omitted).

The jury found petitioner guilty on all counts.

A41-A42.

Pet. App.

The district court sentenced petitioner to 300 months of

imprisonment, to be followed by five years of supervised release.

Id. at A44-A45.

3.

The court of appeals affirmed.

Pet. App. A1-A40.

8

The court of appeals acknowledged that although 21 U.S.C.

841(a)(1) generally makes it unlawful “‘for any person knowingly

or intentionally

. . .

. . .

to manufacture, distribute, or dispense

a controlled substance,’” an exception applies when a

registered practitioner dispenses a controlled substance with a

lawful prescription.

Pet. App. A30 (quoting 21 U.S.C. 841(a)(1));

see 21 U.S.C. 829.

The court explained that under 21 C.F.R.

1306.04(a) “[a] prescription is lawful

* * *

if the prescription

is ‘issued for a legitimate medical purpose by an individual

practitioner

acting

in

the

usual

course

of

his

professional

practice.’”

Pet. App. A30 (quoting 21 C.F.R. 1306.04(a)).

Relying on those provisions, the court of appeals found no

abuse of discretion in the district court declining to issue

petitioner’s proposed good-faith instruction.

Pet. App. A30-A34.

The court of appeals explained that a medical practitioner violates

Section 841(a) when, inter alia, he “issue[s] a prescription that

[i]s objectively not in the usual course of professional practice.”

Id. at A31.

The court stated that the “relevant inquiry” is

“whether a defendant-practitioner objectively acted within that

scope, regardless of whether he believed he was doing so.”

Ibid.

And the court rejected petitioner’s contention that the objective

inquiry

“‘negates

offenses,

the

observing

professional

mens

that

practice,

rea

element’”

“good

and

thus

faith

the

for

defines

Section

the

effectiveness

841(a)

scope

of

of

the

9

prescription exception and the lawfulness of the actus reus.”

Id.

at A33 (citation omitted).

The court of appeals similarly rejected petitioner’s related

contention that the jury could have convicted him for “mere acts

of malpractice or negligence.”

Pet. App. A33.

The court observed

that the district court’s good-faith instruction had specified

that petitioner “need only ‘attempt’ to act reasonably, and that

such an attempt must be made in an ‘honest effort.’”

(citation omitted).

Ibid.

The court of appeals accordingly found that

“the jury could not convict [petitioner] for merely failing to

apply the appropriate standard of care; it could only convict

[petitioner] if it found, beyond a reasonable doubt, that [he]

failed to even attempt or make some honest effort to apply the

appropriate standard of care.”

Id. at A34.

The court of appeals also declined petitioner’s request “to

revisit [its] prior holding that a licensed physician may be

convicted under [Section] 841 for either prescribing outside the

scope

of

professional

purpose.”

practice

or

for

no

legitimate

medical

Pet. App. A25 (citing United States v. Nelson, 383 F.3d

1227, 1229 (10th Cir. 2004)) (quotation marks omitted).

Relying

on Section 841(a)(1) and 21 C.F.R. 1306.04(a), the court explained,

as

it

had

in

a

previous

decision,

that

“a

practitioner

is

authorized to dispense controlled substances” under federal law

“only if he acts with a legitimate medical purpose and in the usual

10

course of professional practice.”

383

F.3d

at

practitioner

1233).

would

be

Pet. App. A25 (quoting Nelson,

“Conversely,”

the

unauthorized

to

court

dispense

continued,

a

“a

controlled

substance if he acts without a legitimate medical purpose or

outside the usual course of professional practice.” Ibid. (quoting

Nelson, 383 F.3d at 1233).

ARGUMENT

Petitioner

renews

his

contentions

(Pet.

18-37)

that

the

district court abused its discretion in declining to deliver his

proposed

good-faith

instruction

to

the

jury

and

that

his

convictions required proof not only that he acted outside the usual

course of medical practice, but also that he lacked a general

legitimate

medical

purpose.

The

court

of

appeals

correctly

rejected those contentions, and its decision neither contravenes

any precedent of this Court nor meaningfully conflicts with any

decision of another court of appeals. This Court has denied review

in other cases presenting similar issues. See, e.g., Sun v. United

States, 138 S. Ct. 156 (2017) (No. 16-9560); Armstrong v. United

States, 558 U.S. 829 (2009) (No. 08-9339). 1

It should follow the

same course here.

The pending petitions in Ruan v. United States, No. 201410 (filed Apr. 5, 2021), Couch v. United States, No. 20-7934

(filed Apr. 5, 2021), and Naum v. United States, No. 20-1480 (filed

Apr. 20, 2021), present similar questions about the appropriate

formulation of the mens rea requirement for prescribing physicians

charged under Section 841.

1

11

1.

a.

Federal

law

prohibits

the

distribution

of

controlled substances “[e]xcept as authorized by” the Controlled

Substances Act (CSA), 21 U.S.C. 801 et seq.

21 U.S.C. 841(a).

The CSA authorizes physicians who register with the DEA to dispense

controlled substances, but only “to the extent authorized by their

registration and in conformity with [the CSA].”

21 U.S.C. 822(b);

see 21 U.S.C. 823(f).

In United States v. Moore, 423 U.S. 122 (1975), this Court

held that physicians registered under the CSA may be subject to

criminal liability under Section 841 “when their activities fall

outside the usual course of professional practice.”

Id. at 124.

The Court reasoned that, under the CSA’s statutory predecessor,

physicians “who departed from the usual course of medical practice”

had been subject to the same penalties as “street pushers,” and

that “the scheme of the [CSA]

* * *

reveals an intent to limit

a registered physician’s dispensing authority to the course of his

‘professional practice.’”

Applying

that

Id. at 139-140.

standard,

the

Court

in

Moore

upheld

the

defendant physician’s conviction because “[t]he evidence presented

at trial” in that case “was sufficient for the jury to find that

[his] conduct exceeded the bounds of ‘professional practice.’”

423 U.S. at 142.

what

jury

Although the Court did not specifically decide

instructions

were

required,

sufficient the jury instructions given.

it

implicitly

deemed

Those instructions stated

12

that the physician could be found guilty of violating Section 841

if he dispensed controlled substances “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

(citation omitted).

in

the

United

States.”

Id.

at

139

They also stated that the defendant could not

be found guilty if he “made ‘an honest effort’ to prescribe

* * *

in compliance with an accepted standard of medical practice.”

Id.

at 142 n.20.

The

touchstone

for

liability

under

Moore

is

whether

a

defendant acted -- or, at a minimum, “made ‘an honest effort’” to

act -- consistently with an objectively “accepted standard of

medical practice.”

423 U.S. at 142 n.20 (citation omitted).

The

district

court’s

good-faith

was

consistent

with

Moore

required for conviction.

and

instruction

adequately

in

this

described

case

the

conduct

The court instructed the jury that “good

faith” was “a complete defense” to the conspiracy and Section

841(a) charges.

Pet. App. A26-A27 (citation omitted).

The court

defined “[g]ood faith” as “attempt[ing] to act in accordance with

what a reasonable physician should believe to be proper medical

practice.” Id. at A27 (citation omitted). And the court explained

that “[t]he good faith defense requires the jury to determine

whether [petitioner] acted in an honest effort to prescribe for

patients’

medical

conditions

in

accordance

with

generally

13

recognized and accepted standards of practice.”

Ibid.

Those

instructions are similar to those implicitly approved in Moore.

Petitioner contends that the “standard[] for judging good

faith” for Section 841(a) violations is “subjective.”

see

Pet.

26-29.

But

Moore

did

not

endorse

a

Pet. 29;

freewheeling

subjective approach, under which a defendant can argue that he

acted in good faith by prescribing controlled substances in any

manner that he subjectively viewed as acceptable medical practice.

And the district court did not abuse its discretion in providing

a good-faith instruction that was consistent with the instruction

in Moore.

Petitioner suggests (Pet. 29-33) that Section 841(a) should

be read to include a wholly subjective component in order to

avoid

serious

questions

unconstitutionally

constitutional

vague.

vagueness

about

whether

Section

841(a)

is

But

Section

841(a)

presents

no

concerns.

As

Eighth

Circuit

has

the

explained, a “reasonable person reading [Section] 841(a)(1) is on

notice that distributing controlled substances violates the CSA

unless such distribution fits within an exception,” and “[s]uch a

person is also on notice that the ‘prescription exception’

does not apply to ‘prescriptions’ issued

course of professional practice.”

603 F.3d 478, 488 (8th Cir. 2010).

* * *

* * *

outside the usual

United States v. Birbragher,

14

Other courts of appeals agree that Section 841(a) is not

unconstitutionally vague.

See United States v. Orta-Rosario, 469

Fed. Appx. 140, 143-144 (4th Cir.) (per curiam), cert. denied, 568

U.S. 902 (2012); United States v. Lovern, 590 F.3d 1095, 1103 (10th

Cir. 2009); United States v. DeBoer, 966 F.2d 1066, 1068-1069 (6th

Cir. 1992); United States v. Rosenberg, 515 F.2d 190, 197-198 (9th

Cir.),

cert.

denied,

423

U.S.

1031

(1975);

United

States

v.

Collier, 478 F.2d 268, 270-272 (5th Cir. 1973) (all rejecting

arguments that Section 841(a) is unconstitutionally vague).

And

petitioner points to no court of appeals decision finding Section

841(a) unconstitutionally vague when applied to physicians or

pharmacists, see Pet. 37, and the government is not aware of any

such decision.

b.

Contrary to petitioner’s assertion (Pet. 18-26), the

court of appeals’ decision does not implicate a division among the

courts of appeals regarding the mens rea required for a Section

841(a)

conviction,

or

the

standard

governing

good-faith

instructions for Section 841(a) offenses, that would warrant this

Court’s review.

As explained on pages 15 to 18 of the government’s

brief in opposition to the petitions for a writ of certiorari in

Ruan v. United States and Couch v. United States, Nos. 20-1410 &

20-7934 (July 7, 2021), every court of appeals to consider those

issues has concluded that Moore calls for “an objective standard”

rather than a subjective one and that an instruction focused on

15

what the doctor “‘believed to be proper medical practice’” is “not

an accurate statement of the law.”

United States v. Hurwitz, 459

F.3d 463, 478 (4th Cir. 2006) (citation and emphasis omitted). 2

Petitioner contends that, in conflict with the court of

appeals’ decision, decisions from the First, Seventh, and Ninth

Circuits require proof “that a medical practitioner intentionally

acted outside the usual scope of professional practice” and “allow

for instructions that define good faith ‘subjectively.’”

21.

That contention lacks merit.

Pet. 19,

As explained on pages 19 through

22 of the government’s brief in opposition in Ruan and Couch, supra

(Nos. 20-1410 & 20-7934), the decisions on which petitioner relies

do not meaningfully differ from the court of appeals’ decision

here. 3

We have served petitioner with a copy of the government’s

brief in opposition in Ruan and Couch.

That brief is also

available on the Court’s online docket.

3

In its brief in opposition in Ruan and Couch, supra (Nos.

20-1410 & 20-7934), the government mistakenly stated that the

Seventh Circuit’s decision in United States v. Kohli, 847 F.3d

483 (7th Cir.), cert. denied, 138 S. Ct. 204 (2017), did not

involve “any instructional dispute.” Br. in Opp. at 20, Ruan and

Couch, supra (Nos. 20-1410 & 20-7934).

It did in fact involve

such a dispute. See Kohli, 847 F.3d at 494. However, the Seventh

Circuit’s affirmance of a good-faith instruction in Kohli, ibid.,

does not conflict with the court of appeals’ affirmance of a goodfaith instruction in this case.

The good-faith instruction in

Kohli provided, inter alia, that “[t]he Defendant may not be

convicted if he merely made an honest effort to treat his patients

in compliance with an accepted standard of practical practice.”

Id. at 489. That instruction is similar to the instruction here,

which provided that “[t]he good faith defense requires the jury to

determine whether [petitioner] acted in an honest effort to

2

16

Petitioner’s reliance (Pet. 21-22) on the Ninth Circuit’s

decision in United States v. Hayes, 794 F.2d 1348 (1986), cert.

denied, 479 U.S. 1086 (1987), is likewise misplaced.

The district

court in Hayes instructed the jury that “[g]ood faith is not merely

a doctor’s sincere intention towards the people who come to see

him, but, rather, it involves his sincerity in attempting to

conduct himself in accordance with a standard of medical practice

generally recognized and accepted in the country.”

Although

the

Ninth

Circuit

suggested

that

Id. at 1351.

concerns

about

a

conviction based on a negligence standard would be “weighty,” id.

at 1352, its affirmance in that case does not show that it would

have

reversed

petitioner’s

conviction

on

the

particular

instruction here, see ibid. (emphasizing that “[j]ury instructions

* * *

must be viewed as a whole and in the context of the entire

trial”).

And in United States v. Garrison, 888 F.3d 1057, 1064

(9th Cir. 2018), another case on which petitioner relies (Pet.

19), although the court listed “intent to distribute” controlled

substances “outside the course of professional practice” as an

element

of

the

offense,

id.

at

1063

(citation

and

emphasis

omitted), the Ninth Circuit did not address or resolve any dispute

over the mens rea requirement for Section 841(a) offenses; rather,

prescribe for patients’ medical conditions in accordance with

generally recognized and accepted standards of practice.”

Pet.

App. A27 (citation omitted).

Kohli would not require reversal

where a district court provides a set of instructions like those

here.

17

the court considered (and rejected) the defendant’s sufficiencyof-the-evidence challenge to his conviction for conspiring to

violate Section 841, id. at 1063-1065.

Petitioner

also

suggests

(Pet.

19-20,

23-24)

that

the

decision below conflicts with decisions from the Second, Fourth,

Sixth, and Eighth Circuits.

Again, as explained on pages 17

through 19 of the government’s brief in opposition in Ruan and

Couch, supra (Nos. 20-1410 & 20-7934), the Section 841(a) mens rea

requirement and good-faith formulations approved of by the Second,

Fourth, and Sixth Circuits do not meaningfully differ from the

standard articulated by the court of appeals below. The additional

decisions that petitioner cites (Pet. 19-20, 23-24) from those

courts –- several of which are unpublished –- are of a piece. 4

And

See United States v. Jones, 825 Fed. Appx. 335, 339 (6th

Cir. 2020) (“A pharmacist’s claim of good-faith compliance with

proper pharmaceutical practice is judged by an objective standard,

which

asks

whether

a

reasonable

[pharmacist]

under

the

circumstances could have believed, albeit mistakenly, that [s]he

had acted within the scope of ordinary professional medical

practice for a legitimate medical purpose.”) (internal citation

and quotation marks omitted; alterations in original); United

States v. Li, 819 Fed. Appx. 111, 118 (3d Cir. 2020) (upholding

the district court’s refusal to provide a good-faith instruction

because the court “instructed the jury on the requirements to prove

knowledge,” but not otherwise reaching conclusions regarding the

appropriate mens rea requirement for Section 841(a) offenses);

United States v. Godofsky, 943 F.3d 1011, 1026 (6th Cir. 2019)

(explaining that in the context of Section 841(a) prosecutions

“good faith * * * is more or less objective good faith: whether

a reasonable doctor under the circumstances could have believed,

albeit mistakenly, that he had acted within the scope of ordinary

professional medical practice for a legitimate medical purpose”)

4

18

the Eighth Circuit’s decision United States v. King, 898 F.3d 797

(8th Cir. 2018) (cited at Pet. 24), expressly endorsed an objective

standard and found that the district court appropriately refused

to

provide

proposed

a

particular

instruction

“incorrectly

good-faith

“misstated

suggest[ing]

that

instruction

the

the

because

applicable

standard

for

the

law”

by

appropriate

medical practice was subjective, rather than objective.”

King,

898 F.3d at 807-808.

Petitioner additionally asserts that the court of appeals

below,

the

Fifth

Circuit,

and

the

Eleventh

Circuit,

“have

explicitly held that a defendant is strictly liable for acting

outside the scope of professional practice,” in conflict with other

courts of appeals.

incorrect.

Pet. 19; see Pet. 22.

That assertion is

As the court of appeals explained in this case, the

district court’s good-faith instruction ensured that “the jury

could not convict [petitioner] for merely failing to apply the

appropriate standard of care; it could only convict [petitioner]

(emphasis omitted); United States v. Voorhies, 663 F.2d 30, 34

(6th Cir. 1981) (“Good faith

* * *

connotes an observance of

conduct in accordance with what the physician should reasonably

believe to be proper medical practice.”), cert. denied, 456 U.S.

929 (1982); United States v. Purpera, 844 Fed. Appx. 614, 626-627

(4th Cir. 2021) (per curiam) (noting that in the context of Section

841 the Fourth Circuit has “made clear -- as has every [other]

court to specifically consider the question -- that the good faith

standard

* * *

must be an objective one”) (quotation marks

omitted), petition for cert. pending, No. 21-5086 (filed July 13,

2021).

19

if it found, beyond a reasonable doubt, that [he] failed to even

attempt

or

make

some

standard of care.”

honest

effort

Pet. App. A34.

to

apply

the

appropriate

And neither the Fifth Circuit

decision nor the Eleventh Circuit decision cited by petitioner

(Pet. 19) held that Section 841(a) incorporates a strict-liability

standard.

See United States v. Norris, 780 F.2d 1207, 1209 & n.2

(5th Cir. 1986) (observing that “the district court carefully

modelled its charge after the Moore charge”); United States v.

Tobin,

676

F.3d

1264,

1281

instruction

that

provided

(11th

that

Cir.

“[a]

2012)

(upholding

an

controlled

substance

is

prescribed by a physician in the usual course of professional

practice

* * *

if he or she prescribed the controlled substance

in good faith as part of his or her medical treatment for the

patient in accordance with the standards of medical practice

generally recognized and accepted in the United States”) (citation

omitted), cert. denied, 568 U.S. 1026 (2012), and 568 U.S. 1105

(2013); see also Br. in Opp. at 15-16, Ruan and Couch, supra (Nos.

20-1410 & 20-7934).

2.

of

Petitioner further contends (Pet. 35-37) that the court

appeals

erred

in

finding

that

“a

practitioner

would

be

unauthorized to dispense a controlled substance if he acts without

a

legitimate

medical

purpose

professional practice.”

or

outside

Pet. App. A25.

the

usual

course

of

Petitioner argues (Pet.

35) that a physician can only be convicted under Section 841(a) if

20

the jury finds that he distributed controlled substances outside

the “usual course of professional practice” and for no “legitimate

medical purpose.”

For the reasons explained on pages 7 to 12 of

the government’s brief in opposition to the petition for a writ of

certiorari in Naum v. United States, No. 20-1480 (July 23, 2021),

the court correctly rejected that argument. 5

And its resolution

of that argument does not conflict with the published decisions of

other courts of appeals, including the Ninth Circuit’s decision in

United States v. Feingold, 454 F.3d 1001 (9th Cir.), cert. denied,

549 U.S. 1067 (2006).

20-1480).

See Br. in Opp. at 13-16, Naum, supra (No.

Further review of that issue is unwarranted.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

BRIAN H. FLETCHER

Acting Solicitor General

KENNETH A. POLITE, JR.

Assistant Attorney General

DAVID M. LIEBERMAN

Attorney

SEPTEMBER 2021

We have served petitioner with a copy of the government’s

brief in opposition in Naum. That brief is also available on the

Court’s online docket.

5