Opposition Brief — Roger Dale Anderson, Petitioner v. United States

No. 23-238

In the Supreme Court of the United States

ROGER DALE ANDERSON, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

ELIZABETH B. PRELOGAR

Solicitor General

Counsel of Record

NICOLE M. ARGENTIERI

Acting Assistant Attorney

General

ANN O’CONNELL ADAMS

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether the court of appeals was required to vacate

petitioner’s convictions for unlawful drug distribution

under 21 U.S.C. 841(a) based on a theory—never raised

by petitioner below—that jury instructions relating to

his “authoriz[ation]” to distribute drugs, ibid., erroneously incorporated the language in 21 C.F.R. 1306.04(a)

that defines the scope of the relevant authorization.

(I)

RELATED PROCEEDINGS

United States District Court (S.D. Ohio):

United States v. Pauley, No. 19-67 (Feb. 18, 2020)

United States v. Jordan, No. 19-67 (July 21, 2020)

United States v. Anderson, No. 19-67 (Jan. 14, 2021)

United States Court of Appeals (6th Cir.):

United States v. Anderson, No. 21-3073 (Apr. 17,

2023)

(II)

TABLE OF CONTENTS

Page

Opinion below ................................................................................ 1

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

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

Argument....................................................................................... 7

Conclusion ..................................................................................... 9

TABLE OF AUTHORITIES

Cases:

Ruan v. United States:

597 U.S. 450 (2022) ............................................................ 3

cert. denied, No. 22-1175 (Nov. 6, 2023) .......................... 8

United States v. Godofsky, 943 F.3d 1011

(6th Cir. 2019)........................................................................ 7

United States v. Henson, No. 19-3062,

2023 WL 2319289 (10th Cir. Mar. 2, 2023) ......................... 9

United States v. Kabov, No. 19-50083,

2023 WL 4585957 (9th Cir. July 18, 2023) .......................... 9

United States v. Kahn, 58 F.4th 1308 (10th Cir. 2023) ........ 9

United States v. Moore, 423 U.S. 122 (1975) .................... 2, 3

Statutes and regulation:

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

21 U.S.C. 822(b) ................................................................. 2

21 U.S.C. 823(b) ................................................................. 2

21 U.S.C. 823(f ) ................................................................. 2

21 U.S.C. 829(a) ................................................................. 2

21 U.S.C. 841(a) ..................................................... 2, 3, 7, 8

21 U.S.C. 841(a)(1)................................................. 1, 2, 4, 5

21 U.S.C. 841(b)(1)(C) ............................................... 1, 2, 4

21 U.S.C. 846 .................................................................. 1, 4

(III)

IV

Statutes and regulation—Continued:

Page

18 U.S.C. 2 ............................................................................ 2, 5

18 U.S.C. 1347 ...................................................................... 2, 5

18 U.S.C. 1349 .......................................................................... 5

21 C.F.R. 1306.04(a) .................................................... 2, 3, 5, 7

In the Supreme Court of the United States

No. 23-238

ROGER DALE ANDERSON, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1a-34a)

is reported at 67 F.4th 755.

JURISDICTION

The judgment of the court of appeals was entered on

April 17, 2023. A petition for rehearing was denied on

June 6, 2023 (Pet. App. 62a-63a). The petition for a writ

of certiorari was filed on September 5, 2023. 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 Southern District of Ohio, petitioner was

convicted on one count of conspiring to unlawfully distribute a controlled substance, in violation of 21 U.S.C.

841(a)(1) and (b)(1)(C) and 846; eight counts of unlawfully distributing controlled substances, in violation

(1)

2

of 21 U.S.C. 841(a)(1) and (b)(1)(C); and one count of

healthcare fraud, in violation of 18 U.S.C. 1347 and 2.

Judgment 1-2. The district court sentenced petitioner

to 96 months of imprisonment, to be followed by three

years of supervised release. Judgment 3-4. The court

of appeals affirmed. Pet. App. 1a-34a.

1. Section 841(a) of Title 21, which is part 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. The CSA’s exceptions to the prohibition

against drug distribution include an exception for physicians who are “registered by” the Drug Enforcement

Administration (DEA) and who prescribe controlled

substances—but the exception applies only “to the extent authorized by their registration and in conformity

with the other provisions” of the Act. 21 U.S.C. 822(b);

see 21 U.S.C. 823(b) and (f ). And controlled substances

generally may be dispensed only pursuant to a “written

prescription of a practitioner.” 21 U.S.C. 829(a).

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.” Section 1306.04(a) specifies that

“[a]n order purporting to be a prescription issued not in

the usual course of professional treatment” is deemed

“not a prescription,” and the “person issuing it[] shall

be subject to the penalties provided for violations of the

provisions of law relating to controlled substances.”

Ibid. And in United States v. Moore, 423 U.S. 122 (1975),

this Court “h[e]ld that registered physicians can be

3

prosecuted under § 841 when their activities fall outside

the usual course of professional practice.” Id. at 124.

In Ruan v. United States, 597 U.S. 450 (2022), this

Court 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.”

Id. at 457 (citation omitted). The Court reasoned, inter

alia, that “a lack of authorization is often what separates wrongfulness from innocence.” Id. at 458. “In addition,” the Court noted, Section 1306.04(a)’s “regulatory language defining an authorized prescription is

* * * ‘ambiguous,’ written in ‘generalities, susceptible to

more precise definition and open to varying constructions,’ ” and a “strong scienter requirement helps to diminish the risk of ‘overdeterrence’ ” of medical practitioners. Id. at 459 (brackets and citations omitted).

2. Petitioner was a DEA-registered physician who

practiced medicine at his independent practice, Marietta Medical, in Marietta, Ohio. Pet. App. 2a. The DEA

began to investigate petitioner based on a tip from a

pharmacist who was concerned about petitioner’s prescribing practices for pain medication. Ibid. Separately,

one of petitioner’s patients contacted the local sheriff ’s

office to voice concerns about petitioner’s prescribing

practices. Id. at 2a-3a. The sheriff ’s office put the patient in touch with the DEA, and the patient agreed to

act as a confidential informant. Id. at 3a.

During one visit to Marietta Medical, the confidential informant told petitioner “that he was ‘in full-blown

withdrawal,’ ” yet petitioner nevertheless wrote him a

4

prescription for Vicodin. Pet. App. 3a (citation omitted).

Petitioner wrote that prescription without giving the informant a physical examination or reviewing his medical records. Id. at 7a. On another visit, the informant

picked up a Vicodin prescription from the office without

seeing petitioner. Id. at 3a. The informant’s experience

was not uncommon: petitioner would often leave signed

prescriptions for his staff to pass out to patients the

next day, without petitioner actually seeing the patients. Id. at 7a.

The DEA’s investigation also revealed that a pregnant woman with obvious physical signs of being an intravenous drug user had walked into Marietta Medical

and requested “a particular opioid,” which petitioner

“prescribed” to her “ ‘no questions asked.’ ” Pet. App.

6a (citation omitted). Petitioner’s staff described the atmosphere at Marietta Medical as “chaos” due to petitioner’s unpredictable hours and the large numbers of

patients lined up outside the clinic waiting for prescriptions. Id. at 8a (citation omitted). And multiple area

pharmacists voiced concerns about petitioner’s prescribing practices after they noticed that he was writing

an increasing number of opioid prescriptions for young

patients. Ibid. The suspicious behavior was so widely

noticed that area pharmacists “agreed as a group to

stop filling prescriptions for pain medications written

by [petitioner].” Id. at 9a.

3. A federal grand jury returned an indictment

charging petitioner with one count of conspiring to unlawfully distribute a controlled substance, in violation of

21 U.S.C. 841(a)(1) and (b)(1)(C) and 846; nine counts of

unlawfully distributing controlled substances, in violation of 21 U.S.C. 841(a)(1) and (b)(1)(C); one count of

conspiring to commit healthcare fraud, in violation of 18

5

U.S.C. 1347 and 1349; and three counts of healthcare

fraud, in violation of 18 U.S.C. 1347 and 2. Indictment

12-18. Before trial, the government dismissed one unlawful distribution count, two healthcare fraud counts,

and the healthcare fraud conspiracy count. Pet. App. 3a

n.1.

At the close of trial, the government proposed jury instructions that incorporated the regulatory language in

Section 1306.04(a) as the touchstone for Section 841(a)

liability. See D. Ct. Doc. 234, at 4-9 (Feb. 4, 2020). Petitioner did not object to the instructions’ incorporation

of the regulatory language. See 3/4/2020 Tr. 124-150.

Petitioner did, however, advocate a good-faith instruction, which would have provided that if a doctor dispenses a drug in “good faith,” “then the doctor has dispensed the drug for a legitimate medical purpose in the

usual course of medical practice” and therefore “lawfully.” Pet. App. 11a-12a (citation omitted). The instruction would have defined good faith as “good intentions in the honest exercise of best professional judgment as to a patient’s need” and that “the doctor acted

in accordance with what he believed to be proper medical practice.” Id. at 11a (citation omitted).

The district court declined to issue such an instruction, on the view that doing so would be inconsistent

with circuit precedent. Pet. App. 12a. But the court observed that another instruction covered the same

ground as the proposed good-faith instruction. Ibid.

The court instructed the jury that, in order to find petitioner guilty of violating Section 841(a)(1), it must find:

(1) that petitioner “knowingly or intentionally dispensed or distributed a Schedule II controlled substance”; and (2) that petitioner “prescribed the drug

without a legitimate medical purpose and outside the

6

course of professional practice.” Id. at 16a, 110a (citation omitted). In describing the terms related to the

second element, the court instructed the jury that:

Although knowledge of the defendant cannot be established merely by demonstrating he was careless,

knowledge may be inferred if the defendant deliberately blinded himself to the existence of a fact. No

one can avoid responsibility for a crime by deliberately ignoring the obvious. If you are convinced that

the defendant deliberately ignored a high probability

that the controlled substance was distributed or dispensed without a legitimate medical purpose in the

usual course of professional practice, then you may

find that the defendant knew this was the case. But

you must be convinced beyond a reasonable doubt

that the defendant was aware of a high probability

that the controlled substances were distributed or

dispensed other than for a legitimate medical purpose while acting in the usual course of professional

practice, and that the defendant deliberately closed

his eyes to what was obvious. Carelessness, or negligence, or foolishness on his part are not the same

as knowledge and are not enough to find him guilty

on this count.

Id. at 112a.

The jury found petitioner guilty on all counts that

had not been dismissed. Pet. App. 12a; Judgment 1-2.

4. The court of appeals affirmed. Pet. App. 1a-34a.

a. The court of appeals determined that the district

court did not abuse its discretion by declining to give

the proposed good-faith instruction. Pet. App. 12a-18a.

The court of appeals observed that “[a]t the time briefing in this case was completed, * * * binding precedent” in the Sixth Circuit “held that the subjective good

7

faith of the defendant was irrelevant to the ‘except as

authorized’ clause for physicians” charged under Section 841(a). Id. at 14a (citing United States v. Godofsky,

943 F.3d 1011, 1026-1027 (6th Cir. 2019)). But because

this Court decided Ruan while petitioner’s appeal was

pending, the court of appeals evaluated the instructions

in this case in light of Ruan and found them to be sufficient. See ibid.

The court of appeals determined that, regardless of

whether the proposed good-faith instruction was a correct statement of the law, the instructions given to the

jury comported with Ruan’s holding. Pet. App. 16a-18a.

It observed that the jury instructions “specifically

cover[ed] the holding of Ruan, by referring continuously to the ‘knowledge of the defendant,’ his ‘deliberate

ignorance,’ and if he ‘knew’ that the prescriptions were

dispensed illegitimately.” Id. at 17a (citation omitted).

And it explained that those instructions “go beyond an

objective view of the ‘usual course of professional practice’ and instead direct the jury’s attention to [petitioner’s] subjective mindset in issuing the prescriptions.” Ibid.

b. Judge White dissented on the jury-instruction issue. Pet. App. 30a-34a. In her view, the deliberateignorance instruction fell short of Ruan’s requirement

that the defendant have knowledge that he was prescribing drugs without a legitimate medical purpose

and outside the course of professional practice, while

the proposed good-faith instruction comported with

Ruan. Id. at 31a-34a.

ARGUMENT

Petitioner contends (Pet. 16-20) that the jury instructions at his trial erred in incorporating language

from 21 C.F.R. 1306.04(a) as the measure of whether his

8

drug-prescribing practices were “authorized” under the

CSA. 21 U.S.C. 841(a). That is a new argument that

petitioner never raised before. See Pet. C.A. Br. 13-59;

Pet. C.A. Reply Br. 5-31. Indeed, in the court of appeals

petitioner asserted the opposite of what he now argues

in this Court. See Pet. C.A. Br. 56 (asserting that the

jury must “evaluate whether [petitioner] prescribed

controlled substances outside the course of professional

practice and for no legitimate medical purpose”); Pet.

C.A. Reply Br. 5-6 (“To convict [petitioner] for the unlawful distribution of controlled substances, the prosecution had to prove that [petitioner] distributed a controlled substance, and in doing so, that he acted intentionally or knowingly, and did not act for a legitimate

medical purpose in the usual course of his professional

practice.”) (brackets omitted).

This Court recently denied the second petition for a

writ of certiorari in Ruan v. United States, No. 22-1175

(2023), which made substantially the same substantive

arguments as the petition here. 1 For the reasons explained in the government’s brief in opposition to the

petition in Ruan, a copy of which is being served on petitioner, petitioner’s new claim lacks merit and does not

warrant further review. See Br. in Opp. at 12-22, Ruan,

supra (No. 22-1175). As with the same claim in Ruan,

petitioner’s new argument was never passed upon below. See id. at 12-14. Petitioner’s claim is also foreclosed by precedent and rests on a misinterpretation of

the CSA and this Court’s decision in Ruan. See id. at

14-19. And petitioner has not identified any circuit

Another pending petition for a writ of certiorari incorporates the

arguments in the denied Ruan petition. See Sakkal v. United

States, No. 23-130 (filed Aug. 7, 2023).

1

9

conflict that would warrant review by this Court. See

id. at 19-22.2

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ELIZABETH B. PRELOGAR

Solicitor General

NICOLE M. ARGENTIERI

Acting Assistant Attorney

General

ANN O’CONNELL ADAMS

Attorney

DECEMBER 2023

In addition to the Tenth Circuit’s decisions in United States v.

Kahn, 58 F.4th 1308 (2023), and United States v. Henson, No. 193062, 2023 WL 2319289 (Mar. 2, 2023), which are addressed in the

government’s Ruan brief, Br. in Opp. at 19-22 & n.2, Ruan, supra

(No. 22-1175), petitioner also contends (Pet. 15) that the court of appeals’ decision conflicts with the Ninth Circuit’s unpublished decision in United States v. Kabov, No. 19-50083, 2023 WL 4585957 (July

18, 2023). But that decision, which is unpublished and nonprecedential, did not address the question presented. It explicitly “t[ook] no

position on the parties’ arguments * * * and remand[ed] for the

district court to apply * * * Ruan” to the defendants’ CSA convictions “in the first instance.” Id. at *7.

2