Opposition Brief — Dalibor Kabov and Berry Kabov, Petitioners v. United States

No. 23-1013

In the Supreme Court of the United States

DALIBOR KABOV AND BERRY KABOV, PETITIONERS

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

ELIZABETH B. PRELOGAR

Solicitor General

Counsel of Record

NICOLE M. ARGENTIERI

Principal Deputy Assistant

Attorney General

MAHOGANE D. REED

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTIONS PRESENTED

1. Whether petitioners are entitled to relief based on

a jury instruction that finding them guilty of unauthorized distribution of controlled substances and conspiracy, in violation of 21 U.S.C. 841(a) and 846, required

finding (inter alia) that they “intend[ed] to act outside

the course of professional practice and without a legitimate medical purpose,” C.A. E.R. 1253.

2. Whether the lower courts correctly rejected petitioners’ due process challenges under Brady v. Maryland, 373 U.S. 83 (1963), and Napue v. Illinois, 360 U.S.

264 (1959).

(I)

ADDITIONAL RELATED PROCEEDING

United States Court of Appeals (9th Cir.):

United States v. Global Compounding, LLC, No. 1950098 (Sept. 16, 2019)

(II)

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 1

Jurisdiction .................................................................................... 1

Statement ...................................................................................... 1

Argument..................................................................................... 14

Conclusion ................................................................................... 25

TABLE OF AUTHORITIES

Cases:

Black v. Cutter Labs., 351 U.S. 292 (1956) .......................... 23

Brady v. Maryland, 373 U.S. 83 (1963) .................... 9, 14, 20

City of Springfield v. Kibbe, 480 U.S. 257 (1987) ............... 16

Glossip v. Oklahoma, cert. granted,

144 S. Ct. 691 (Jan. 22, 2024) (No. 22-7466) ..................... 24

Graver Tank & Mfg. Co. v. Linde Air Prods. Co.,

336 U.S. 271 (1949).............................................................. 20

Johnson v. United States, 318 U.S. 189 (1943) ................... 16

Kyles v. Whitley, 514 U.S. 419 (1995) ............................. 20-23

Napue v. Illinois, 360 U.S. 264 (1959) ....................... 9, 14, 21

Rehaif v. United States, 588 U.S. 225 (2019) ...................... 12

Ruan v. United States, 597 U.S. 450 (2022) ...... 11, 14, 17, 18

Sprint/United Mgmt. Co. v. Mendelsohn,

552 U.S. 379 (2008).............................................................. 23

United States v. Agurs, 427 U.S. 97 (1976) ......................... 21

United States v. Duldulao,

87 F.4th 1239 (11th Cir. 2023) ..................................... 19, 20

United States v. Feingold, 454 F.3d 1001

(9th Cir.), cert. denied, 549 U.S. 1067 (2006) ................... 17

United States v. Johnston, 268 U.S. 220 (1925).................. 20

United States v. Perez, 116 F.3d 840 (9th Cir. 1997) ......... 16

United States v. Wells, 519 U.S. 482 (1997) .................. 16, 19

(III)

IV

Statutes, regulation, and rule:

Page

Controlled Substances Act, 21 U.S.C. 801 et seq. ................. 2

21 U.S.C. 822(b) ................................................................. 3

21 U.S.C. 823(f ) (Supp. IV 2022) ...................................... 3

21 U.S.C. 841(a) ..................................................... 2, 11, 18

21 U.S.C. 841(a)(1)....................................................... 2, 17

21 U.S.C. 841(b)(1)(C) ....................................................... 2

21 U.S.C. 846 ...................................................................... 2

21 U.S.C. 952(b) ................................................................. 2

21 U.S.C. 960(a)(1)............................................................. 2

21 U.S.C. 963 ...................................................................... 2

18 U.S.C. 2(b) ........................................................................... 2

18 U.S.C. 1957(a) ..................................................................... 2

26 U.S.C. 7206(1) ..................................................................... 2

21 C.F.R. 1306.04(a) .......................................................... 3, 18

Fed. R. Crim. P. 33 .................................................................. 9

In the Supreme Court of the United States

No. 23-1013

DALIBOR KABOV AND BERRY KABOV, PETITIONERS

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-22)

is not published in the Federal Reporter but is available

at 2023 WL 4585957.

JURISDICTION

The judgment of the court of appeals was entered on

July 18, 2023. A petition for rehearing was denied on

November 14, 2023 (Pet. App. 51-52). On February 7,

2024, Justice Kagan extended the time within which to

file a petition for a writ of certiorari to and including

March 13, 2024, and the petition was filed on March 11,

2024. 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 Central District of California, petitioners

(1)

2

Berry Kabov and Dalibor Kabov were convicted of one

count of conspiring to distribute oxycodone, hydromorphone, hydrocodone, and promethazine with codeine, in

violation of 21 U.S.C. 841(a)(1) and (b)(1)(C), and 846;

three counts of distributing oxycodone, in violation of 21

U.S.C. 841(a)(1) and (b)(1)(C); one count of conspiring

to import a Schedule III controlled substance, in violation of 21 U.S.C. 952(b), 960(a)(1), and 963; three counts

of importing a Schedule III controlled substance, in violation of 21 U.S.C. 952(b) and 960(a)(1), and 18 U.S.C.

2(b); and nine counts of engaging in monetary transactions in property derived from specified unlawful activity, in violation of 18 U.S.C. 1957(a) and 2(b). Pet. App.

24-25, 38-39. Berry was convicted of three counts and

Dalibor of five counts of subscribing to a false tax return, in violation of 26 U.S.C. 7206(1). Pet. App. 25, 3839. Petitioners were each sentenced to 121 months of

imprisonment to be followed by three years of supervised release. Id. at 25-26, 39-40. The court of appeals

vacated petitioners’ convictions for importing controlled substances and conspiring to import controlled

substances, affirmed their remaining convictions, and

remanded for further proceedings. Id. at 1-22.

1. Section 841(a) of the Controlled Substances Act

(CSA or Act), 21 U.S.C. 801 et seq., prohibits the knowing or intentional distribution of controlled substances

“[e]xcept as authorized by” the Act. 21 U.S.C. 841(a).

The CSA’s exceptions to the prohibition against drug

distribution include an exception for physicians and

pharmacists who are “registered by” the Drug Enforcement Administration (DEA) and who prescribe or dispense controlled substances—but the exception applies

only “to the extent authorized by their registration and

3

in conformity with the other provisions” of the Act. 21

U.S.C. 822(b); see 21 U.S.C. 823(f ) (Supp. IV 2022).

A federal regulation, 21 C.F.R. 1306.04(a), limits the

scope of the authorization by specifying that a “prescription for a controlled substance to be effective must

be issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice.” “The responsibility for the proper

prescribing and dispensing of controlled substances is

upon the prescribing practitioner, but a corresponding

responsibility rests with the pharmacist who fills the

prescription.” Ibid. “An order purporting to be a prescription issued not in the usual course of professional

treatment or in legitimate and authorized research is

not a prescription within the meaning and intent of ” the

Act, “and the person knowingly filling such a purported

prescription, as well as the person issuing it, shall be

subject to the penalties provided for violations of the

provisions of law relating to controlled substances.”

Ibid.

2. Petitioners operated a scheme to sell high-potency

opioids, steroids, and amphetamines to customers without valid prescriptions.

a. In December 2011, an Ohio-based inspector with

the United States Postal Inspection Service (USPIS) intercepted four parcels shipped from Columbus, Ohio, to

private mailboxes in Los Angeles, California, near petitioners’ apartment. Gov’t C.A. Br. 5. Each parcel contained between $4000 and $5000 in cash tucked in magazines and was addressed to either Dalibor or an associate. Ibid. That month, petitioners’ bank accounts also

received $24,300 in cash deposits from banks located

in and near Columbus. Ibid. Almost immediately after

4

each cash deposit, petitioners withdrew the cash in Los

Angeles via withdrawal slips that Dalibor signed. Ibid.

The following month, USPIS intercepted two packages shipped from Los Angeles to Columbus; each package contained over 300 oxycodone pills tucked in the

pages of a magazine. Gov’t C.A. Br. 6. A forensic examiner found Dalibor’s fingerprints on the packaging of

the oxycodone pills. Ibid. Postal inspectors later identified 15 additional parcels shipped from Columbus to

Dalibor or an associate between October 2011 and January 2012. Id. at 7.

A USPIS inspector tracked down petitioners’ Ohio

drug customer, who cooperated with the government’s

investigation. Gov’t C.A. Br. 7. The informant recorded

a series of telephone conversations with Berry during

which they discussed past and future opioid transactions. Id. at 8. The recordings also confirmed that petitioners were the intended recipients of the parcels

with cash that were sent to Los Angeles: Berry told the

informant that “basically all the money you sent got

confiscated by the Postal Inspection.” Ibid. (citation

omitted).

b. Because the demand for petitioners’ opioids was

outstripping their supply, in February 2012 petitioners

opened Global Compounding Pharmacy, a retail compounding pharmacy in Los Angeles. Gov’t C.A. Br. 1011. The following month, Global Compounding obtained

a registration from the DEA that authorized the pharmacy to dispense controlled substances in conformance

with applicable laws and regulations. Id. at 11. Petitioners submitted orders for tens of thousands of pills

to multiple drug wholesalers, focusing on high-potency

opioids. Id. at 13.

5

Petitioners then purported to fill prescriptions—but

the majority of controlled-substances prescriptions they

filled were sham prescriptions that petitioners themselves initiated using the names and personal identifying information of identity-theft victims. Gov’t C.A. Br.

14-17. Petitioners conspired with a licensed physician,

who wrote more than 99% of the prescriptions filled at

Global Compounding for oxycodone, hydromorphone,

hydrocodone, and amphetamines such as Adderall. Id.

at 17.

Due to concerns about petitioners’ drug orders, several wholesalers either refused to do business with

Global Compounding or eventually cut off sales to the

pharmacy. Gov’t C.A. Br. 18-21. At least one wholesaler reported the pharmacy to the DEA. Id. at 19. Petitioners then began manufacturing pills themselves.

Id. at 21. Petitioners ordered pill-press machines from

Chinese suppliers and, in early 2014, they ordered

enough bulk powder of oxycodone, hydromorphone, and

hydrocodone to manufacture 100,000 maximum-strength

pills. Ibid. Despite the large number of pills that petitioners ordered, produced, and dispensed, petitioners

did not report sales of many of the opioids and amphetamines they distributed, as required by California law.

Id. at 23-24.

Petitioners also imported anabolic steroids from

China, although they never registered as drug importers with the DEA and could not lawfully import controlled substances. Gov’t C.A. Br. 27. And petitioners

filed false tax returns, underreporting their and Global

Compounding’s income by approximately $1.5 million.

Id. at 28-32. Petitioners used proceeds from the scheme

to pay off large credit card bills and to purchase an expensive car. Id. at 29, 32-33.

6

3. A federal grand jury in the Central District of

California returned a superseding indictment charging

petitioners and Global Compounding with 50 counts of

conspiracy, drug distribution, drug importation, engaging in transactions in criminally derived proceeds, filing

false tax returns, and related offenses. C.A. E.R. 107154. Two of the three substantive drug-distribution

counts (Counts 2 and 3) were premised on petitioners’

distribution of oxycodone in January 2012, before petitioners opened Global Compounding. Id. at 124-125.

The drug-distribution conspiracy count (Count 1) and

the third substantive drug-distribution count (Count 4)

were premised at least in part on petitioners’ distribution of controlled substances after they opened and obtained a DEA registration for the pharmacy. Id. at 112123, 126.

a. Prior to trial, the parties jointly submitted a proposed jury instruction for the drug-distribution conspiracy count (Count 1). C.A. S.E.R. 2-3. The parties’ proposed instruction explained that, to find petitioners

guilty of conspiring to distribute controlled substances,

the jury had to find “that [petitioners] agreed to distribute and to possess with intent to distribute” controlled

substances “while acting and intending to act outside

the course of professional practice and without a legitimate medical purpose.” Id. at 2.

The government also submitted a proposed jury instruction for Count 4, the substantive drug-distribution

offense that occurred after petitioners opened the pharmacy, which informed the jury that guilt required proof

that petitioners’ “distribution of the controlled substance

was outside the usual course of professional practice and

without legitimate medical purpose” and that they “acted

with the intent to distribute the identified controlled

7

substance outside the usual course of professional practice and without legitimate medical purpose.” C.A. E.R.

4553.

The final paragraph of the proposed instruction for

Count 4 further explained:

For a given approach to a distribution of a controlled

substance[] to be within the “usual course of professional practice,” there must be at least a reputable

group of people in the pharmacy profession within

the country who agree that it is consistent with legitimate pharmacy practice. In determining whether

[petitioners] acted outside the usual course of professional practice, you may consider the standards to

which pharmacy professional generally hold themselves, including accepted standards of care among

pharmacy professionals.

C.A. E.R. 4554.

Petitioners “object[ed] to the final paragraph of the

proposed instruction,” but “request[ed] that the remainder of the instruction be provided to the jury.”

C.A. E.R. 4555. In that objection (and a related motion

in limine) petitioners asserted that the final paragraph

would “lead[] the Jury to confuse civil liability with

criminal culpability and hold[] [petitioners] to a stricter

standard, i.e., that of a pharmacist in charge” and therefore would “lower[] the benchmark for a criminal conviction.” Id. at 4558; see D. Ct. Doc. 141, at 4 (Jan. 2,

2017) (making a similar objection).

Before trial, the district court denied petitioners’

motion in limine but agreed that “care will need to be

taken to draft instructions that will address the concern” petitioners raised in their motion. C.A. E.R. 12801281.

8

b. Petitioners’ trial lasted over two weeks and included approximately 30 witnesses and 300 exhibits.

Gov’t C.A. Br. 40. One government witness was Courtland Gettel, who purchased thousands of dollars’ worth

of opioids, steroids, and amphetamines from petitioners

between 2013 and 2015. Id. at 33; see C.A. E.R. 30193067. Gettel testified that he bought up to 5000 pills a

month for amounts between $10,000 and $30,000. Gov’t

C.A. Br. 33. He also testified that he overdosed on illegal drugs multiple times and was hospitalized after using drugs supplied by petitioners. Id. at 35. And he

stated that he had been sober for 18 years before meeting petitioners, and that he had relapsed after he “had

a death with [his] son, who was born in 2008, diagnosed

with a genetic disease called cystic fibrosis.” Id. at 36

(citation omitted).

At the close of trial, the district court gave the instruction on Count 1 (the conspiracy count) that was requested by the parties, under which a guilty verdict was

contingent on (inter alia) a finding that petitioners

“act[ed] and intend[ed] to act outside the course of professional practice and without a legitimate medical purpose.” C.A. E.R. 1253. On Count 4 (the post-2011 drugdistribution count), the court instructed the jury that a

guilty verdict on Count 4 required finding that petitioners “knowingly distributed oxycodone,” that petitioners’ “distribution of [oxycodone] was outside the usual

course of professional practice and without legitimate

medical purpose,” and that petitioners “acted with the

intent to distribute [oxycodone] outside the usual

course of professional practice and without legitimate

medical purpose.” Id. at 1255. The court did not include

the final paragraph of the proposed instructions, to

which petitioners had objected, but instead instructed

9

the jury that “ ‘[t]he usual course of professional practice’ means the standard of pharmaceutical practice”

that is “generally recognized and accepted.” Ibid.

The jury found petitioners guilty on all submitted

counts. Gov’t C.A. Br. 40; C.A. E.R. 57-100.

4. a. After the jury returned its verdict, the government disclosed reports and documents concerning a

federal investigation of ongoing real-estate fraud by

Gettel. C.A. E.R. 27-28. Based on those documents, petitioners moved to dismiss the indictment or for a new

trial under Federal Rule of Criminal Procedure 33, alleging that the government had withheld exculpatory

impeachment evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963), and failed to correct false testimony in violation of Napue v. Illinois, 360 U.S. 264

(1959). C.A. E.R. 890-953.

Among other things, petitioners contended that the

government had withheld evidence that Gettel had engaged in real-estate fraud, and had also withheld bank

statements showing that Gettel had engaged in “numerous” drug transactions, “but the bank statements were

devoid of any transactions with [petitioners].” C.A.

E.R. 913; see id. at 904-911, 913. Petitioners additionally claimed that Gettel’s testimony that he had relapsed because his son had died was false—both because Gettel’s son was not dead and because Gettel had

relapsed before he met petitioners—and that the government failed to correct Gettel’s testimony. Id. at 897900.

b. The district court denied petitioners’ motions.

C.A. E.R. 27-36. On the Brady claim, the court explained that because the government received the tip

that led to the discovery of Gettel’s real-estate fraud after the jury returned its verdict, the government “was

10

not aware of ” that scheme “before trial” and therefore

petitioners “fail[ed] to make any showing of suppression

of this evidence by the prosecution.” Id. at 30. The

court also found that petitioners “failed to show that”

the purported “ ‘bank statements’ exist,” because the

relevant documents the government produced post-trial

were actually spreadsheets the FBI created during its

investigation of Gettel’s real-estate fraud. Id. at 29.

And the court observed that spreadsheets created “for

the purpose of investigating Gettel’s real estate fraud”

naturally “would not include Gettel’s drug transactions

with [petitioners],” and that because “Gettel’s transactions with [petitioners] were in cash or by credit card”

they “would not be included in” spreadsheets collecting

bank transactions. Id. at 29-30.

On petitioners’ Napue claims, the district court determined that petitioners failed to show that Gettel’s

testimony that he suffered multiple hospitalizations for

drug overdoses was false, or—even assuming that it

was false—that the government knew of such falsity.

C.A. E.R. 31. And as to Gettel’s testimony that his relapse was caused by his son’s death, the court determined that, “[a]ssuming Gettel’s testimony was false,

* * * [petitioners] fail[ed] to present any evidence that

the Government knew of the falsity at the time they elicited Gettel’s testimony at trial.” Ibid.

c. Petitioners moved for reconsideration of the district court’s order based on what they claimed was additional newly discovered evidence. See C.A. E.R. 1314. Petitioners asserted that a postal inspector provided false trial testimony indicating that petitioners

were connected to mailboxes that were used as part of

their schemes and that the inspector falsely identified

11

Berry as a speaker on recorded telephone calls between

Berry and an associate. See id. at 14-15, 17.

The district court again rejected petitioners’ claims.

C.A. E.R. 12-19. The court observed that “[a]s to all”

the “claims of new evidence” petitioners “fail[ed] to explain why the alleged new evidence was not [previously]

available,” which “alone [was] sufficient to deny” their

motions. Id. at 14; see id. at 16. The court also found

that petitioners failed to show that the postal inspector’s testimony about their connection to mailboxes was

“material[] or that the Government, in fact, possessed

such evidence and failed to disclose it.” Id. at 15. The

court additionally determined that because petitioners

were “not prevented from presenting” at trial a newly

proffered voice-recognition expert report, that report

did “not qualify as ‘newly discovered’ evidence.” Id. at

17. And the court found that petitioners “fail[ed] to

show that the expert’s report is material in light of the

substantial amount of other evidence supporting the

finding that [Berry] was in fact the speaker on the recorded calls.” Ibid.

5. Petitioners appealed. While their appeals were

pending, this Court decided Ruan v. United States, 597

U.S. 450 (2022), which addressed the mens rea for certain prosecutions for unlawful distribution of controlled

substances under 21 U.S.C. 841(a). Ruan held that the

“ ‘knowingly or intentionally’ mens rea” in Section

841(a) “applies to the [statute’s] ‘except as authorized’

clause,” such that, “once a defendant meets the burden

of producing evidence that his or her conduct was ‘authorized,’ the Government must prove beyond a reasonable doubt that the defendant knowingly or intentionally acted in an unauthorized manner.” 597 U.S. at 457.

Subsequently, in an unpublished per curiam opinion, the

12

court of appeals vacated petitioners’ convictions for conspiring to import controlled substances and importing

controlled substances, affirmed their remaining convictions, and remanded for further proceedings. Pet. App.

1-22.

a. The court of appeals rejected petitioners’ challenge to the district court’s jury instructions on the

drug-distribution and related conspiracy counts. Pet.

App. 13-14. The court of appeals noted that petitioners

“do not dispute that they invited instructional error by

proposing the distribution jury instructions they now

challenge on appeal.” Id. at 13. And the court found that

“[t]he record reflects that [petitioners] relinquished a

known right because the arguments they raise[d] on appeal concerning the distribution instructions [were]

functionally the same arguments they made to the district court to support their proposed instruction” and

that therefore their “challenges to these instructions

fail.” Id. at 14.

As to the importation counts, the court of appeals

“t[ook] no position” on the validity of the jury instruction. Pet. App. 15. And it vacated those convictions “for

the district court to apply” Ruan and Rehaif v. United

States, 588 U.S. 225 (2019), “in the first instance” and

“decide whether the jury was properly instructed in

light of those decisions.” Pet. App. 15.

b. The court of appeals also affirmed the district

court’s denial of petitioners’ motions to dismiss and for

a new trial. Pet. App. 2-13.

The court of appeals rejected petitioners’ Brady and

Napue challenges to Gettel’s testimony, explaining

that petitioners’ arguments “fail[ed] because the government presented overwhelming evidence of [petitioners’] guilt, and none of th[e] purported constitutional

13

violations or additional evidence could or would have

changed the outcome of [petitioners’] trial.” Pet. App. 5.

The court of appeals observed that “[t]he evidence

showed” that:

Berry coordinated drug transactions with an informant and stated that he intended to open a “clinic” to

distribute more drugs; [petitioners’] fingerprints

were found in parcels with oxycodone pills; packages

of cash were sent to (and seized from) [petitioners’]

private mailboxes; [petitioners’] pharmacy dealt almost exclusively in the highest dosages of opioids

and controlled substances desirable on the black market; [petitioners] used * * * stolen identities * * * to

create phony prescriptions at their pharmacy; text

messages showed that [petitioners] actively coordinated with a single physician who prescribed about

99 percent of [petitioners’] pharmacy’s prescriptions; prescriptions received by the pharmacy suddenly changed to call for compounded pills when [petitioners] stopped ordering pre-manufactured pills

wholesale; and discrepancies in [petitioners’] reporting to the California Department of Justice revealed

that over 100,000 pills were unaccounted for.

Pet. App. 5-6. The court accordingly found that petitioners could not “satisfy the materiality standards under Napue [or] Brady * * * with regard to Gettel’s testimony.” Id. at 6.

The court of appeals likewise was “not persuaded”

by petitioners’ other Napue claims. Pet. App. 6; see id.

at 6-10. The court rejected petitioners’ claim that a

postal inspector provided false trial testimony indicating that petitioners were connected to mailboxes that

were used as part of their schemes. Id. at 6-8. The court

found that petitioners failed to demonstrate that the

14

relevant testimony was false, or even misleading, and

emphasized other evidence that connected petitioners

and their associate to the mailboxes. See ibid. The

court also rejected petitioners’ claim that the inspector

gave false trial testimony about recorded telephone

calls between Berry and an associate, again finding that

petitioners failed to demonstrate falsity and that other

evidence indicated that Berry was on those calls. Id. at

9-10. The court therefore determined that petitioners’

“Napue challenges fail individually and collectively because [petitioners] failed to establish that much of the

evidence they challenge was ‘actually false’ or misleading, and there is not a reasonable probability that absent the remaining evidence, the result at trial could

have been different.” Id. at 10.

ARGUMENT

Petitioners contend (Pet. 9-19) that the Court should

grant the petition for a writ of certiorari, vacate the decision below, and remand for further consideration in

light of Ruan v. United States, 597 U.S. 450 (2022). But

petitioners were already able to raise a Ruan claim in

the court of appeals; they were not entitled to relief on

it; and they cannot show that any other court of appeals

would have granted it to them. The jury instructions in

their case—which required the jury to find that petitioners “intend[ed] to act outside the course of professional practice and without a legitimate medical purpose,” C.A. E.R. 1253 (emphasis added); see id. at

1255—were consistent with Ruan.

Petitioners also renew their contentions (Pet. 19-26)

that they are entitled to relief under Brady v. Maryland, 373 U.S. 83 (1963), and Napue v. Illinois, 360 U.S.

264 (1959). The lower courts accurately stated the

applicable law and correctly rejected those factbound

15

contentions, and there is no conflict with any decision of

this Court or of another court of appeals. The petition

for a writ of certiorari should be denied.

1. Petitioners contend (Pet. 9, 17-19) that Ruan undermines the jury instructions for unlawful distribution

and conspiracy that were given in their case. That claim

lacks merit, and they are not entitled to relief. The district court gave the instruction that petitioners proposed for the drug-distribution conspiracy count (Count

1), which required the jury to find that petitioners

“agreed to distribute and to possess with intent to distribute” controlled substances “while acting and intending to act outside the course of professional practice and

without a legitimate medical purpose.” C.A. S.E.R. 2;

see C.A. E.R. 1253. And as to the sole substantive drugdistribution offense that involved petitioners’ conduct

after they opened the pharmacy (Count 4), petitioners

generally agreed with the government’s proposed instruction. See C.A. E.R. 4555; D. Ct. Doc. 141, at 4.

Although petitioners disputed the portion of the government’s proposed instruction that would have provided that “a reputable group of people in the pharmacy

profession” must “agree” that an “approach to a distribution of a controlled substance[]” falls “within the

‘usual course of professional practice,’ ” C.A. E.R. 4554;

see id. at 4555, 4558; D. Ct. Doc. 141, at 4, the district

court did not give that portion of the instruction. Instead, it instructed that “ ‘[t]he usual course of professional practice’ means the standard of pharmaceutical

practice” that is “generally recognized and accepted,”

and that to find that petitioners “knowingly distributed

oxycodone,” the jury was required to find that their

“distribution of [oxycodone] was outside the usual

course of professional practice and without legitimate

16

medical purpose” and that petitioners “acted with the

intent to distribute [oxycodone] outside the usual

course of professional practice and without legitimate

medical purpose.” C.A. E.R. 1255.

On appeal, petitioners “d[id] not dispute that they invited instructional error by proposing the distribution

jury instructions they now challenge on appeal.” Pet.

App. 13. “[U]nder the ‘invited error’ doctrine,” a party

“may not complain on appeal of errors that he himself

invited or provoked” the district court “to commit.”

United States v. Wells, 519 U.S. 482, 488 (1997) (citation

omitted). Invited error is a species of “waive[r]” that

treats as “unreviewable” alleged errors that the defendant caused or induced. Pet. App. 14 (quoting United

States v. Perez, 116 F.3d 840, 845 (9th Cir. 1997) (en

banc)); cf. City of Springfield v. Kibbe, 480 U.S. 257, 259

(1987) (per curiam) (“[T]here would be considerable

prudential objection to reversing a judgment because of

instructions that petitioner accepted, and indeed itself

requested.”); Johnson v. United States, 318 U.S. 189,

201 (1943) (“We cannot permit an accused to elect to

pursue one course at the trial and then, when that has

proved to be unprofitable, to insist on appeal that the

course which he rejected at the trial be reopened to

him.”).

The court of appeals here noted that, pursuant to the

agreed-upon instructions, “[t]he district court instructed

the jury that the government needed to prove beyond a

reasonable doubt that ‘[petitioners] acted with the intent to distribute the identified controlled substance

outside the usual course of professional practice and

without legitimate medical purpose.’ ” Pet. App. 13 n.4.

And it found that “[t]he record reflects that [they] relinquished a known right because the arguments they

17

raise on appeal concerning the distribution instructions

are functionally the same arguments they made to the

district court to support their proposed instruction.”

Id. at 14. Petitioners provide no basis for concluding

that they were nonetheless entitled to appellate relief,

where the ultimate result of the process in the district

court was instructions fully consistent with Ruan.

Long before this Court’s decision in Ruan, the Ninth

Circuit had held that Section 841(a)(1) required the government to prove “that the practitioner acted with

intent to distribute [controlled substances] outside

the course of professional practice.” United States v.

Feingold, 454 F.3d 1001, 1008 (emphasis added), cert.

denied, 549 U.S. 1067 (2006). Accordingly, the district

court instructed the jury that, for the drug-distribution

conspiracy count, the jury was required to find that petitioners both acted and were “intending to act outside

the course of professional practice and without a legitimate medical purpose”—that is, without authorization.

C.A. E.R. 1253 (emphasis added). And for the relevant

substantive drug-distribution count, the jury was required to find that petitioners both distributed oxycodone “outside the usual course of professional practice

and without legitimate medical purpose” and “acted

with the intent to distribute [oxycodone] outside the

usual course of professional practice and without legitimate medical purpose.” Id. at 1255 (emphasis added).

The government was therefore required to prove that

petitioners “knowingly or intentionally acted in an unauthorized manner.” Ruan, 597 U.S. at 457.

Petitioners therefore err in asserting (Pet. 17-19)

that the jury was instructed solely on an objective standard. It is of course true that “the regulation defining the

scope of a doctor’s prescribing authority does so by

18

reference to objective criteria such as ‘legitimate

medical purpose’ and ‘usual course’ of ‘professional

practice.’ ” Ruan, 597 U.S. at 467 (quoting 21 C.F.R.

1306.04(a)). The district court accordingly explained

that the phrase “ ‘usual course of professional practice’

means the standard of pharmaceutical practice” that is

“generally recognized and accepted.” C.A. E.R. 1255.

But the jury was also required to find that petitioners

subjectively intended to act outside the usual course of

professional practice and without a legitimate medical

purpose, see pp. 8-9, 15-17, supra, which is precisely

what Ruan requires. And, contrary to petitioners’ assertion (Pet. 8, 18-19), the government did not suggest

a purely objective standard in its closing argument; instead, it correctly stated that “if ” a person is “acting

outside the course of professional practice * * * the

question [be]comes: Is that what [the person] intended

to do?” C.A. E.R. 4327 (emphasis added). The instructions here therefore provide no basis for the Court to

grant the petition, vacate the judgment below, and remand for further proceedings in light of Ruan.1

Petitioners appear to suggest (Pet. 7, 9) that their Ruan arguments are applicable to all three of their drug-distribution counts.

But Ruan would not apply to Counts 2 and 3, which involved petitioners’ drug sales before they obtained a DEA license for Global

Compounding. As discussed, see pp. 2-3, supra, the CSA prohibits

the knowing or intentional distribution of controlled substances

“[e]xcept as authorized by” the Act, 21 U.S.C. 841(a), and DEAregistered entities are “authorized” to distribute controlled substances in some situations. Ruan addressed how Section 841(a)’s

“ ‘knowingly or intentionally’ mens rea applies * * * [a]fter a defendant produces evidence that he or she was authorized to dispense

controlled substances.” 597 U.S. at 454. Petitioners have never suggested that their drug sales before they obtained a DEA license

1

19

Although petitioners dispute the court of appeals’ reliance on the invited error doctrine, the court perceived

them not to contest its applicability, see Pet. App. 13,

and they cannot show that any other circuit would grant

them any form of relief on these facts. Petitioners are

wrong to assert (Pet. 16) that the Court’s decision in

Wells “forecloses the application of the invited error

doctrine here.” Wells explained both that the invitederror doctrine is “valuable” and that this Court “ha[s]

treated an inconsistency between a party’s request for

a jury instruction and its position before this Court” as

a relevant “consideration[] bearing on” whether to

grant a writ of certiorari. 519 U.S. at 488. And it declined to apply the invited-error doctrine in a circumstance where—unlike here—the court of appeals “ruled

on” the question and an intervening decision “rendered”

a jury-instruction error “reversible.” Id. at 489. Nothing in Wells suggests that petitioners are entitled to a

remedy where the instructions were correct.

Nor did any of the circuit decisions that petitioners

cite (see Pet. 14-15) grant relief where a defendant

acknowledged inviting any error and no error in fact occurred. For example, in the decision on which petitioners most heavily rely, United States v. Duldulao, 87

F.4th 1239 (11th Cir. 2023), the court “ ‘decline[d]’ ” to

“invoke” the invited-error doctrine “on the facts of

th[at] case—a criminal appeal involving an instructional

error in defining a substantive offense flowing directly

from [the court’s] longstanding and clear precedent and

were authorized. Accordingly, the district court correctly instructed the jury that, to find petitioners guilty on Counts 2 and 3,

it only needed to find that petitioners “knowingly distributed oxycodone” and “knew that it was oxycodone or some other prohibited

drug.” C.A. E.R. 1255.

20

attributable to both parties”—and instead reviewed the

jury instructions “for plain error,” id. at 1256-1257 (citation omitted). The court emphasized that it was “not

authorizing a free-roving change-in-law exception to the

rule of invited error.” Ibid. There is no reason to suppose that it, or any other court, would vacate petitioners’ distribution-related convictions that were based on

the Ruan-compliant instructions here, and there is no

reason for this Court to do so either.

2. Petitioners separately renew (Pet. 19-26) their

Brady and Napue claims, but the courts below correctly

denied those claims as well. There is no conflict with

any decision of this Court or of another court of appeals.

And the highly factbound nature of the claims, which

the lower courts both rejected, would make further review in this Court particularly unwarranted. See United

States v. Johnston, 268 U.S. 220, 227 (1925) (“We do not

grant a [writ of ] certiorari to review evidence and discuss specific facts.”); see also Kyles v. Whitley, 514 U.S.

419, 456-457 (1995) (Scalia, J., dissenting) (“[U]nder

what we have called the ‘two-court rule,’ the policy [in

Johnston] has been applied with particular rigor when

district court and court of appeals are in agreement as

to what conclusion the record requires.”) (citing Graver

Tank & Mfg. Co. v. Linde Air Prods. Co., 336 U.S. 271,

275 (1949)).

a. To establish a Brady claim, a defendant must

show that: (1) the prosecution suppressed evidence; (2)

the evidence was favorable to the defendant; and (3) the

evidence was material to the establishment of the defendant’s guilt or innocence. 373 U.S. at 87-88. Evidence is material under Brady if there is “a reasonable

probability that, had the evidence been disclosed to the

defense, the result of the proceeding would have been

21

different.” Kyles, 514 U.S. at 435 (citation omitted). And

to establish a Napue claim, a defendant must show that:

(1) trial testimony or evidence was false or misleading;

(2) the government knew or should have known that it

was false or misleading; and (3) the testimony was material. See 360 U.S. at 269; United States v. Agurs, 427

U.S. 97, 103-104 (1976). False testimony is material under Napue if there is “any reasonable likelihood that the

false testimony could * * * affect[] the judgment of the

jury.” Agurs, 427 U.S. at 103.

The courts below correctly articulated those standards. See Pet. App. 2-4; C.A. E.R. 29, 31. And they

properly applied the correctly stated standards to the

particular facts here. On petitioners’ Brady claims involving Gettel’s real-estate fraud (Pet. 20, 24), as the

district court explained (C.A. E.R. 30), the government

was unaware of Gettel’s fraud until after the jury returned its verdict, so there was no evidence for the government to withhold before or during the trial. And

while petitioners assert (Pet. 20, 24) that there are

“bank records” that the government failed to produce

before trial, the lower courts correctly recognized that

the relevant documents are not bank records, but are

instead spreadsheets created by the FBI during its investigation of Gettel’s real-estate fraud, which postdated the trial. C.A. E.R. 29-30. The government therefore did not withhold those documents either. See ibid.

Petitioners do not contest, or even address, those findings. Nor do they explain why the documents would be

material in this case, thereby failing another Brady requirement.

The lower courts likewise correctly rejected on numerous bases petitioners’ Brady and Napue claims (Pet.

5 n.3, 20) challenging Gettel’s testimony. Petitioners

22

have failed to demonstrate that Gettel’s testimony

about his hospitalizations was false or—even assuming

that it was false—that the government was aware of its

falsity. See C.A. E.R. 31. And, assuming that Gettel’s

testimony about his son’s death and the timing of his

relapse was false, petitioners have failed to provide any

evidence that the government was aware of the falsity

before trial. See ibid. In any event, as the court of appeals explained, Pet. App. 5-6, given the overwhelming

evidence of petitioners’ guilt, see pp. 3-5, 12-14, supra,

Gettel’s allegedly false or suppressed testimony would

not have changed the outcome of the trial and therefore

was not material. Again, petitioners do not meaningfully contest the district court’s and the court of appeals’ independently sufficient bases for rejecting their

challenges to Gettel’s testimony, and thus provide no

sound basis for this Court to overturn the result below.

Finally, both the district court and the court of appeals correctly rejected petitioners’ remaining Napue

claims. See Pet. 21-22. Petitioners have never demonstrated the falsity of either (1) the postal inspector’s testimony connecting mailboxes to petitioners’ schemes or

(2) his testimony regarding recorded telephone calls between Berry and a co-conspirator. See Pet. App. 6-10;

C.A. E.R. 14-15, 17. And, as both lower courts explained,

even assuming that the evidence was false, in light of

the overwhelming evidence of petitioners’ guilt there “is

not a reasonable probability that absent the remaining

evidence, the result at trial could have been different.”

Pet. App. 10; see C.A. E.R. 15, 17.

b. Petitioners contend (Pet. 23-24) the court of appeals failed to properly assess “the cumulative effect of

all” suppressed or false evidence. Kyles, 514 U.S. at

421. But, as discussed, the courts below generally found

23

that the government neither suppressed evidence nor

proffered false evidence, so there was no “cumulative

effect” to assess. Ibid. And, in any event, the court of

appeals expressly found that petitioners’ “Napue challenges fail individually and collectively because [petitioners] failed to establish that much of the evidence

they challenge was ‘actually false’ or misleading, and

there is not a reasonable probability that absent the remaining evidence, the result at trial could have been

different.” Pet. App. 10 (emphases added). Thus, contrary to petitioners’ assertion (Pet. 24), the court of appeals’ decision does not “conflict with this Court’s authority.”

Petitioners highlight (Pet. 23) the court of appeals’

statement that “Gettel’s testimony was unnecessary to

secure [petitioners’] convictions,” Pet. App. 5, as evidence that it did not, in fact, apply the correct “reasonable likelihood” standard. But that single statement

does not provide a sound basis for inferring that the

court was in fact not applying the standard that it said

that it was applying—let alone that the circuit’s approach in general conflicts with this Court’s teachings.

Cf. Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S.

379, 386 (2008) (reviewing court should not lightly presume error by lower court); Black v. Cutter Labs., 351

U.S. 292, 297 (1956) (“This Court * * * reviews judgments, not statements in opinions.”). To the contrary,

the court of appeals correctly stated that “testimony [is]

material” under Napue if there is a “ ‘reasonable likelihood that the false testimony could have affected the

judgment of the jury’ ” and found that “none of ” the “additional evidence could or would have changed the

24

outcome of [petitioners’] trial.” Pet. App. 3, 5 (citation

and emphasis omitted).2

c. Finally, petitioners contend (Pet. 3, 19, 24, 27)

that the Court should hold this case for Glossip v. Oklahoma, cert. granted, 144 S. Ct. 691 (Jan. 22, 2024) (No.

22-7466). Glossip presents a question of “[w]hether the

State’s suppression of the key prosecution witness’s admission [that] he was under the care of a psychiatrist

and failure to correct that witness’s false testimony

about that care and related diagnosis violate” Brady

and Napue, and “[w]hether the entirety of th[at] suppressed evidence must be considered when assessing

the materiality of Brady and Napue claims.” Pet. at i,

Glossip, supra (No. 22-7466). But irrespective of how

the Court resolves those questions in Glossip, it would

not suggest any error in the outcome here.

Particularly given the highly fact-specific nature of

Brady and Napue claims, petitioners would not be entitled to relief if this Court were to find in Glossip that

the State violated Brady and Napue and that, when considered in its entirety, the relevant evidence and testimony was material. As explained above, the court of

appeals here has already found that, even assuming that

evidence here was suppressed or false, the entirety of

that evidence was not collectively material. See pp. 12Petitioners suggest (Pet. 24-26) that the court of appeals erred

in concluding that they forfeited a due process challenge to the district court’s admission of certain phone call recordings. See Pet.

App. 12-13. But petitioners have not asked this Court to grant a

petition for a writ of certiorari to address that factbound forfeiture

determination. See Pet. 24-26. And, in any event, the court of appeals correctly found that petitioners’ due process claim was “forfeited because [petitioners] did not raise” that particular claim “in a

motion to suppress before trial, and the district court never addressed it.” Pet. App. 13; see Gov’t C.A. Br. 87-88.

2

25

14, supra. There therefore is no sound reason to hold

this case pending this Court’s decision in Glossip.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ELIZABETH B. PRELOGAR

Solicitor General

NICOLE M. ARGENTIERI

Principal Deputy Assistant

Attorney General

MAHOGANE D. REED

Attorney

MAY 2024