Opposition Brief — Ronald Stuart Lubetsky, Petitioner v. United States

No. 24-137

In the Supreme Court of the United States

RONALD STUART LUBETSKY, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

ELIZABETH B. PRELOGAR

Solicitor General

Counsel of Record

NICOLE M. ARGENTIERI

Principal Deputy Assistant

Attorney General

DAVID M. LIEBERMAN

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether sufficient evidence supported petitioner’s

convictions for unlawful drug distribution under 21

U.S.C. 841(a).

(I)

TABLE OF CONTENTS

Page

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

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

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

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

Conclusion ................................................................................... 17

TABLE OF AUTHORITIES

Cases:

Cutter v. Wilkinson, 544 U.S. 709 (2005) .............................. 8

Gonzales v. Oregon, 546 U.S. 243 (2006) ............................. 11

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

336 U.S. 271 (1949).............................................................. 10

Jackson v. Virginia, 443 U.S. 307 (1979) ...................... 10, 15

Johnson v. Williams, 568 U.S. 289 (2013) ............................ 8

Kyles v. Whitley, 514 U.S. 419 (1995) .................................. 10

Ruan v. United States, 597 U.S. 450 (2022) ...................... 6, 8

United States v. Abovyan,

988 F.3d 1288 (11th Cir. 2021), overruled

on other grounds by Ruan v. United States,

597 U.S. 450 (2022).......................................................... 7, 12

United States v. Armstrong,

550 F.3d 382 (5th Cir. 2008), cert. denied,

558 U.S. 829 (2009), overruled on other grounds

by United States v. Guillermo Balleza, 613 F.3d

432 (5th Cir.), cert. denied, 562 U.S. 1076 (2010) ....... 12, 16

United States v. Bek, 493 F.3d 790 (7th Cir.),

cert. denied, 552 U.S. 1010 (2007) ..................................... 12

United States v. Daniel, 3 F.3d 775 (4th Cir. 1993),

cert. denied, 510 U.S. 1130 (1994) ..................................... 16

United States v. Elder, 682 F.3d 1065 (8th Cir. 2012) ....... 15

(III)

IV

Cases—Continued:

Page

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

(9th Cir.), cert. denied, 549 U.S. 1067 (2006) ................... 13

United States v. Johnston, 268 U.S. 220 (1925).................. 10

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

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

cert. denied, 144 S. Ct. 2685 (2024) ................................... 14

United States v. Kahn, 58 F.4th 1308 (10th Cir. 2023) ...... 12

United States v. King, 898 F.3d 797 (8th Cir. 2018) .......... 15

United States v. Kirk, 584 F.2d 773 (6th Cir.),

cert. denied, 439 U.S. 1048 (1978) ..................................... 16

United States v. Lamartiniere,

100 F.4th 625 (5th Cir. 2024), petition for cert.

pending, No. 24-5578 (filed Sept. 16, 2024) ...................... 12

United States v. Limberopoulos,

26 F.3d 245 (1st Cir. 1994) ................................................. 12

United States v. Moore, 423 U.S. 122 (1975) .............. 8, 9, 11

United States v. Motley,

No. 21-10296, 2023 WL 9014457 (9th Cir. Dec. 29,

2023), petition for cert. pending, No. 24-5107

(filed July 16, 2024) ............................................................. 14

United States v. Oppong, No. 21-3003,

2022 WL 1055915 (6th Cir. Apr. 8, 2022) .......................... 12

United States v. Plesons, 560 F.2d 890 (8th Cir.),

cert. denied, 434 U.S. 966 (1977) ....................................... 16

United States v. Rosenberg, 515 F.2d 190

(9th Cir.), cert. denied, 423 U.S. 1031 (1975) ................... 16

United States v. Rottschaefer, 178 Fed. Appx. 145

(3d Cir.), cert. denied, 549 U.S. 887 (2006) ....................... 16

United States v. Smith, 573 F.3d 639 (8th Cir. 2009) ........ 14

United States v. Smithers,

92 F.4th 237 (4th Cir. 2024) ............................................... 13

United States v. Williamson, 504 U.S. 36 (1992) ................. 8

V

Cases—Continued:

Page

United States v. Wilson,

850 Fed. Appx. 546 (9th Cir. 2021) .................................... 14

Wisniewski v. United States, 353 U.S. 901 (1957) ............. 13

Constitution, statutes, regulation, and rule:

U.S. Const. Art. I, § 8, Cl. 3 (Commerce Clause) ................. 8

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

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

21 U.S.C. 823(f ) (Supp. IV 2022) ...................................... 2

21 U.S.C. 829(a) ........................................................... 2, 10

21 U.S.C. 841 ......................................................... 11-13, 15

21 U.S.C. 841(a) ................................................... 2, 4, 7, 11

21 U.S.C. 841(a)(1)......................................................... 1, 7

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

21 C.F.R. 1306.04(a) ............................................ 2, 7, 8, 11, 15

Sup. Ct. R. 10 ......................................................................... 10

In the Supreme Court of the United States

No. 24-137

RONALD STUART LUBETSKY, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1a-4a)

is not published in the Federal Reporter but is available

at 2024 WL 577543.

JURISDICTION

The judgment of the court of appeals was entered on

February 13, 2024. A petition for rehearing was denied

on May 7, 2024 (Pet. App. 5a-6a). The petition for a writ

of certiorari was filed on August 5, 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 Southern District of Florida, petitioner

was convicted on seven counts of unlawfully distributing

a controlled substance, in violation of 21 U.S.C. 841(a)(1)

and (b)(1)(C). Judgment 1-2. He was sentenced to 60

(1)

2

months of imprisonment, to be followed by three years

of supervised release. Judgment 3-4. The court of appeals affirmed. Pet. App. 1a-4a.

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 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(f ) (Supp. IV 2022). 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.

2. In early 2016, the DEA received a complaint

about petitioner from one of his patients. See Gov’t C.A.

Br. 3. The patient reported that he had sought treatment for an eye condition, but petitioner did not treat

his eye and instead gave him an opioid prescription that

3

the patient neither needed nor wanted. Ibid. The DEA

then searched prescribing records and discovered that

petitioner prescribed opioids, particularly oxycodone,

at a much higher rate than the average physician in

Florida. Ibid.

A confidential source, YH, visited petitioner’s office

in April 2016, posing as a new patient. Gov’t C.A. Br. 3.

YH had no physical injuries, no pain, no limitation in her

range of motion, and no loss of strength. Ibid. But YH

reported that about a year before she had been in a car

accident and a slip-and-fall accident; that, while recovering from those accidents, she took a small amount of

Percocet and a muscle relaxer; and that she had residual neck pain. Id. at 4. YH also told petitioner that she

obtained 30-milligram oxycodone pills from her “friend”

and that those pills made her feel better. Ibid. (citation

omitted). In response, petitioner provided a tutorial on

the different opioids he could prescribe. Ibid. Petitioner also conducted a brief physical examination, during which YH displayed a full range of motion and normal strength. Ibid.

Petitioner wrote YH a one-month prescription for 60

30-milligram morphine pills and for a muscle relaxer.

Gov’t C.A. Br. 4. Petitioner did not offer any further

treatment for YH’s pain other than vaguely stating that

she could try stretching or massage. Ibid. Petitioner

also informed YH that he would charge $250 for the first

visit and $200 for all later visits. Ibid.

YH had 20 more appointments with petitioner between 2016 and 2018, all of which were recorded. Gov’t

C.A. Br. 5. During those appointments, petitioner never

physically examined YH, never asked her about her

pain, never discussed any side effects the prescriptions

4

might cause, never discussed any alternative treatments, and never warned her about the dangers of opioid overdose or addiction. Ibid. But petitioner’s written

progress notes for those appointments falsely indicated

that he had provided a physical examination and that he

had discussed alternative treatments with YH. Ibid.

At several appointments, YH told petitioner that she

was selling or sharing the opioid pills that petitioner had

prescribed. Gov’t C.A. Br. 5. She also told petitioner

that she had run out of pills before the month was over,

which indicated that she was taking higher doses than

directed or was selling or sharing her pills. Ibid. At

some appointments, YH requested specific prescriptions, including the maximum dose of 30-milligram oxycodone. Id. at 5-6. Finally, at every appointment, petitioner tested YH’s urine for her prescribed opioids,

but YH always tested negative—which indicated that

she was selling, sharing, or misusing her pills. Id. at 6.

Despite those signs that YH was selling or misusing her

prescriptions, petitioner still wrote YH high-dose, highstrength opioid prescriptions at every appointment.

Ibid.; see id. at 6-9 (summarizing seven appointment

visits).

3. A federal grand jury in the Southern District of

Florida returned an indictment charging petitioner

with 12 counts of unlawfully distributing oxycodone or

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

Indictment 1-5. The case proceeded to trial.

a. At trial, the jury heard evidence documenting petitioner’s appointments and prescribing decisions with

respect to YH. See, e.g., Gov’t C.A. Br. 24-35. The jury

also heard testimony from the government’s expert,

Dr. Mark Rubenstein—a Florida pain-management

5

physician—about the procedures for prescribing opioids to patients suffering from chronic pain. Id. at 9-15.

The procedures described by Dr. Rubenstein—for

which he identified a baseline in the express requirements of Florida law—include taking a detailed medical

history, conducting an extensive physical and neurological examination, and considering non-addictive medications and non-medication treatment options. Gov’t C.A.

Br. 10-11. Dr. Rubenstein also testified that a physician

must check for “red flags,” including: (1) requests for

specific opioids; (2) claims that opioids are the only

treatment that addresses the patient’s pain; (3) negative urine tests despite the fact that the patient has an

opioid prescription; (4) claims that the patient ran out

of pills early; (5) admissions that the patient sold or

shared pills; and (6) admissions that the patient bought

opioids off the street. Id. at 11-12 (citation omitted).

Dr. Rubenstein additionally testified that, after a physician has prescribed a patient opioids, the physician

should take an updated medical history and perform a

physical examination at all appointments. Id. at 12.

Dr. Rubenstein then testified, based on his review of

the recordings of YH’s appointments with petitioner,

that petitioner lacked a medically legitimate reason to

prescribe opioids to YH. Gov’t C.A. Br. 13. Dr. Rubenstein explained that petitioner did not take a sufficiently detailed medical history to support a finding that

opioid treatment was appropriate for YH; did not conduct an appropriately detailed physical examination before prescribing her opioids; and did not diagnose YH

with a medical condition supporting opioid-only treatment. Ibid.

6

Dr. Rubenstein likewise testified that petitioner prescribed opioids to YH outside the usual course of professional practice. Gov’t C.A. Br. 13. In support of that

determination, he emphasized that petitioner failed to

take a detailed medical history of YH; that he performed

only a brief physical examination of YH at her first appointment; that YH had normal functions and abilities;

that his diagnosis of YH did not correlate with her

stated complaints and medical history; that he did not

discuss other treatment options with YH; and that he

did not conduct physical examinations at YH’s follow-up

appointments. Id. at 13-14.

b. At the close of the government’s case, the district

court denied petitioner’s motion for a judgment of acquittal, finding that under the standard this Court articulated in Ruan v. United States, 597 U.S. 450 (2022),

“there is sufficient evidence for a reasonable jury to find

the defendant guilty.” 11/2/22 Tr. 28. In making that

determination, the district court observed that the negative drug tests provided “evidence that” YH was “likely

not * * * taking the drugs”; that “prescription[s] [were]

written without an examination”; and that petitioner ignored “indication[s]” that YH “was giving away drugs

and selling drugs.” Id. at 28-29. During the defense

case, a defense expert testified that petitioner acted

within the usual course of professional practice when

prescribing opioids to YH. See Gov’t C.A. Br. 15-19.

The jury found petitioner guilty of seven counts of

unlawfully distributing a controlled substance and acquitted him on the remaining five counts. Judgment 12. The district court sentenced him to 60 months of imprisonment, to be followed by three years of supervised

release. Judgment 3-4.

7

4. The court of appeals affirmed in an unpublished,

per curiam decision, Pet. App. 1a-4a, rejecting (inter

alia) petitioner’s argument that the trial evidence was

insufficient to support the jury’s guilty verdicts, id. at

2a-4a.

The court of appeals found “really no disput[e] that

the jury heard enough evidence to find that [petitioner]

knowingly acted outside ‘the usual course of his professional practice’ when issuing the oxycodone and morphine prescriptions at issue here.” Pet. App. 2a (quoting 21 C.F.R. 1306.04(a)). The court declined to consider petitioner’s contention that “the government

didn’t prove a lack of legitimate medical purpose” and

therefore “did not prove the prescriptions were unauthorized” under Section 841(a)(1). Id. at 3a. The court

noted that it had previously “held that Section 841 ‘requires only that the jury find the doctor prescribed a

drug not for a legitimate medical purpose or not in the

usual course of professional practice.’ ” Ibid (quoting

United States v. Abovyan, 988 F.3d 1288, 1308 (11th

Cir. 2021), overruled on other grounds by Ruan, supra)

(internal quotation marks omitted). “Because the evidence in this case was sufficient to prove a knowing deviation from the usual course of medical practice,” the

court concluded that “it d[id] not matter whether there

was also sufficient evidence to prove a knowing lack of

legitimate medical purpose.” Id. at 3a-4a.

ARGUMENT

Petitioner renews his contention (Pet. 17-29) that insufficient evidence supported his convictions for unlawfully distributing a controlled substance, in violation of

21 U.S.C. 841(a), because in his view the government

8

failed to prove that his controlled-substance prescriptions lacked a legitimate medical purpose. 1 The court of

appeals correctly rejected that contention, and its unpublished opinion neither contravenes any precedent of

this Court nor conflicts with any decision of another

court of appeals. Further review is unwarranted.

1. A prescription is “authorized” by the CSA “when

a doctor issues it ‘for a legitimate medical purpose . . .

acting in the usual course of his professional practice.’ ”

Ruan v. United States, 597 U.S. 450, 454 (2022) (quoting

21 C.F.R. 1306.04(a)). And in United States v. Moore,

423 U.S. 122 (1975), this Court “h[eld] that registered

physicians can be prosecuted under § 841 when their activities fall outside the usual course of professional practice.” Id. at 124.

In Moore, the Court affirmed the conviction of a physician based on evidence about his deficient prescription

Petitioner also asserts (Pet. 20-21) that the court of appeals’ approach in this case may have rendered this prosecution a violation

of the Commerce Clause. Although he frames that as a separate

issue (Pet. i), he did not raise such a Commerce Clause claim below.

See Pet. C.A. Br. 18-51. Nor does the petition advance any developed argument on the issue, which appears to be specific to the manner in which the testimony in his case established the relevant medical standards. See Pet. 10, 20-21, 29; see also Johnson v. Williams,

568 U.S. 289, 299 (2013) (noting that federal courts generally “refuse

to take cognizance of arguments that are made in passing without

proper development”). Any forfeited as-applied claim supplies no

basis for review in the first instance in this Court. See Cutter v.

Wilkinson, 544 U.S. 709, 718 n.7 (2005) (explaining that this Court

is one “of review, not of first view”); United States v. Williams, 504

U.S. 36, 41 (1992) (explaining that this Court ordinarily does not address issues that were not pressed or passed upon below); see also,

e.g., Gov’t Br. at 22-24, Ruan v. United States, 597 U.S. 450 (2022)

(No. 20-1410) (discussing interaction of state and federal law underlying regulatory standard).

1

9

practices, which included conducting cursory or nonexistent physical exams, ignoring test results, taking inadequate precautions against diversion or misuse of

drugs, issuing prescriptions in dosages and frequencies

based on the patient’s demand, and charging patients

based on the amount of controlled substances they requested. 423 U.S. at 142-143; see id. at 127 (noting that

“[a]ccurate records were not kept” by the physician).

The jury heard evidence that petitioner engaged in similar conduct here.

First, petitioner prescribed large doses of highstrength opioid pills; indeed, he routinely gave YH a

prescription for the legal monthly limit of oxycodone

pills alongside a second prescription for oxycontin or

morphine. Gov’t C.A. Br. 28-29. Second, petitioner obtained only a cursory medical history from YH at her

first appointment and renewed YH’s prescriptions for

years without physically examining her, conducting any

medical tests, or inquiring how her pain or injuries had

changed over time. Id. at 25-26, 29. Third, rather than

charging based on whatever specific medical services

might have been necessary and provided on each visit,

petitioner charged a set cash fee of $250 for an initial

appointment and $200 for all monthly follow-up appointments to receive opioid prescriptions. Id. at 29.

Fourth, petitioner never informed YH about any

other treatments, like physical therapy or non-opioid

medications, that could alleviate her alleged residual

pain. Gov’t C.A. Br. 30. Fifth, petitioner issued prescriptions to YH despite knowing that she had previously taken opioids illegally, that she was selling and

sharing the opioid pills that he previously prescribed to

her, and that she was not taking the opioid pills that he

prescribed to her as directed. Id. at 30-31. YH’s urine

10

drug screens corroborated those red flags; at each appointment, she tested negative for opioids that petitioner had previously prescribed her. Id. at 25.

Finally, while engaging in all that conduct, petitioner

also entered false progress notes into YH’s patient

chart stating that he had provided a complete physical

examination, updated her diagnosis, and discussed alternative treatments. Gov’t C.A. Br. 32. As in Moore,

there was more than enough evidence in this case for

the jury to conclude that petitioner issued controlledsubstance prescriptions to YH that were not for a legitimate medical purpose in the usual course of his professional practice and, therefore, violated Section 841(a).

See Jackson v. Virginia, 443 U.S. 307, 319 (1979) (holding that evidence is sufficient if, “viewing the evidence

in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt”) (emphasis omitted).

The district court and the court of appeals thus correctly rejected petitioner’s sufficiency challenge. Petitioner identifies no decision—from this Court or another

court of appeals—reaching a different result on comparable facts. And the factbound determination that sufficient evidence supports petitioner’s convictions does

not warrant this Court’s review. This Court “do[es] not

grant * * * certiorari to review evidence and discuss

specific facts.” United States v. Johnston, 268 U.S. 220,

227 (1925); see Sup. Ct. R. 10. That “policy has been

applied with particular rigor when district court and

court of appeals are in agreement as to what conclusion

the record requires.” Kyles v. Whitley, 514 U.S. 419,

456-457 (1995) (Scalia, J., dissenting) (citing Graver

11

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

275 (1949)).

2. Petitioner instead contends (Pet. 21-29) that the

court of appeals erred in declining to specifically assess

whether the evidence was sufficient to show that petitioner’s prescriptions were not only outside “the usual

course of professional practice” but also “not for a legitimate medical purpose.” That contention lacks merit.

a. The regulatory text sets forth a unitary requirement that a prescription be issued “for a legitimate

medical purpose by an individual practitioner acting in

the usual course of his professional practice.” 21 C.F.R.

1306.04(a) (emphasis added). At a minimum, that text

requires a physician to prescribe drugs both with “a legitimate medical purpose” and “in the usual course of

his professional practice.” Ibid. A physician’s prescription would therefore be unauthorized, and thus prohibited under Section 841(a), so long as he knowingly failed

to do one or the other.

When presented with identical regulatory language

in Moore, see 423 U.S. at 136 n.12, this Court consistently referred only to “professional practice” in describing criminal liability under Section 841, id. at 140-142.

And Moore upheld a conviction where the jury instructions did not require multiple distinct findings about the

nature of the prescriptions. See id. at 138-139; see also

Gonzales v. Oregon, 546 U.S. 243, 285 (2006) (Scalia, J.,

dissenting) (explaining that, “[u]nder [this Court’s] reasoning in Moore, writing prescriptions that are illegitimate * * * is certainly not ‘in the usual course of professional practice’ ”) (brackets and citation omitted).

b. There is no disagreement in the courts of appeals

that would warrant this Court’s review. Every published decision that has expressly addressed the issue

12

has adopted a disjunctive reading, determining that a

jury may find a medical practitioner guilty of a Section

841 offense based on evidence that he knowingly distributed or dispensed a controlled substance “outside

the usual course of medical practice” or “without a legitimate medical purpose.” 2 And none of the decisions

on which petitioner relies (Pet. 24-25) for his claim of a

conflict held that such a disjunctive instruction is erroneous.

Petitioner errs in asserting (Pet. 23) that “[t]he

Sixth, Seventh, and Tenth Circuits have vacillated between the disjunctive and conjunctive readings.” See,

e.g., United States v. Oppong, No. 21-3003, 2022 WL

1055915, at *5 (6th Cir. Apr. 8, 2022) (noting that “binding case law does not support” the conjunctive reading);

United States v. Bek, 493 F.3d 790, 798-799 (7th Cir.)

(describing disjunctive instruction as “proper”), cert.

denied, 552 U.S. 1010 (2007); see also United States v.

See, e.g., United States v. Lamartiniere, 100 F.4th 625, 642-643

(5th Cir. 2024) (“[A] prescription is unauthorized under § 841(a)(1)

if it lacks a legitimate medical purpose or was issued outside the

usual course of professional practice.”), petition for cert. pending,

No. 24-5578 (filed Sept. 16, 2024); United States v. Abovyan, 988

F.3d 1288, 1308 (11th Cir. 2021) (“[T]he law requires only that the

jury find the doctor prescribed a drug ‘not for a legitimate medical

purpose’ or not ‘in the usual course of professional practice.’ ”) (citation omitted), overruled on other grounds by Ruan, supra); United

States v. Armstrong, 550 F.3d 382, 399-400 (5th Cir. 2008) (cataloguing appellate decisions upholding disjunctive jury instructions), cert

denied, 558 U.S. 829 (2009), overruled on other grounds by United

States v. Guillermo Balleza, 613 F.3d 432 (5th Cir.) (per curiam),

cert. denied, 562 U.S. 1076 (2010); United States v. Limberopoulos,

26 F.3d 245, 249-250 (1st Cir. 1994) (“[ W ]ell-established case law

mak[es] clear that [Section 841] applies to a pharmacist’s (or physician’s) drug-dispensing activities so long as they fall outside the

usual course of professional practice.”).

2

13

Kahn, 58 F.4th 1308, 1316 (10th Cir. 2023) (finding error

on remand from this Court in disjunctive instruction

that included alternative that did not account for mens

rea requirement). But even assuming intracircuit disagreement, such disagreement would not warrant this

Court’s review. See Wisniewshi v. United States, 353

U.S. 901, 902 (1957) (per curiam). The same would be

true of any inconsistency in the Fourth Circuit, see Pet.

25, which has reserved the issue for a future case, see

United States v. Smithers, 92 F.4th 237, 250 n.5 (4th

Cir. 2024). And petitioner errs in suggesting (Pet. 24)

that the Eighth and Ninth Circuits “appear to have settled on the conjunctive reading” at odds with the decision below.

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

denied, 549 U.S. 1067 (2006), the Ninth Circuit correctly

recognized that the jury instructions, which included

the “legitimate medical purpose” and “course of professional practice” standards in the conjunctive, as well as

a good-faith instruction that “require[d] the jury to find

that [the defendant] intentionally acted outside the usual

course of professional practice,” properly “require[d] the

jury to find that [the defendant] intentionally acted outside the usual course of professional practice.” Id. at

1008. The court emphasized the need to distinguish a

conviction under Section 841 from “a finding that [a

physician] has committed malpractice.” Id. at 1010.

And the court found that the instructions there had sufficiently done so. Id. at 1012.

The affirmance of the conviction in Feingold, in which

the Ninth Circuit did not directly consider a disjunctive

instruction, thus does not demonstrate a conflict with

the court of appeals’ decision in this case. The same is

true of the other Ninth Circuit decisions petitioner cites

14

(Pet. 24), which at most stated the regulatory standard

or did not fault a conjunctive instruction—and did not

address whether the statute requires a conjunctive approach.3

Likewise, in United States v. Smith, 573 F.3d 639

(2009), the Eighth Circuit rejected the defendant’s

claim that “the definition of ‘usual course of professional

practice’ in [the jury instructions] improperly conflated

the standard for criminal liability with the standard for

medical malpractice.” Id. at 649. Reviewing the particular instructions delivered in that case, the court noted

that “the jury was unable to convict [the defendant] unless it found a failure to adhere to prevailing medical

standards and a lack of legitimate medical purpose.”

Ibid. But “[t]his dual showing * * * exceed[ing] that

required to establish medical malpractice” was just one

of several aspects of the instructions that assured the

reviewing court that “the jury instructions, taken as a

whole, precluded a conviction based on the civil standard of liability.” Id. at 649-650; see id. at 649 (“Additional indicators that the instructions did not conflate

civil and criminal standards include the fact that the

court explicitly instructed that the standard of proof applicable in this case was ‘beyond a reasonable doubt.’ ”);

id. at 649-650 (“The court also allowed [the defendant]

the possibility of a good-faith defense, which is unavailable in malpractice cases.”) (footnote omitted).

See United States v. Motley, No. 21-10296, 2023 WL 9014457, at

*3 (9th Cir. Dec. 29, 2023), petition for cert. pending, No. 24-5107

(filed July 16, 2024); United States v. Kabov, No. 19-50083, 2023 WL

4585957, at *6-*7 (9th Cir. July 18, 2023), cert. denied, 144 S. Ct.

2685 (2024); United States v. Wilson, 850 Fed. Appx. 546, 547 (9th

Cir. 2021) (mem.).

3

15

Smith thus never held that a disjunctive instruction

would have been categorically erroneous, or a conjunctive instruction categorically necessary, to appropriately

define the Section 841 offense. And the other Eighth

Circuit decisions petitioner cites (Pet. 25) describe the

standard non-disjunctively. See United States v. King,

898 F.3d 797, 807 (2018) (“The government bore the

burden of establishing that [the defendant’s] actions

were not for legitimate medical purposes in the usual

course of medical practice.”); United States v. Elder,

682 F.3d 1065, 1068-1069 (2012) (“[T]he government

must prove that the physician’s activities ‘fall outside

the usual course of professional practice.’ ”) (citation

omitted). Indeed, even petitioner himself appears (Pet.

25 & n. 12) to harbor doubt about whether the Eighth

Circuit in fact follows his preferred approach.

c. Furthermore, even if another court of appeals had

endorsed petitioner’s preferred conjunctive reading,

this Court’s review would still be unwarranted, because

it would not affect the outcome here.

In reviewing petitioner’s challenge to the sufficiency

of the evidence, an appellate court must review the evidence “in the light most favorable to the prosecution”

and assume that the jury accepted the expert’s testimony. Jackson, 443 U.S. at 319. And even if petitioner’s

conjunctive reading of Section 1306.04(a)’s regulatory

language was correct, his sufficiency claim would still

fail because the trial record contains sufficient evidence

that the prescriptions he wrote for YH lacked a legitimate medical purpose—as the jury was “specifically instructed” to find, Pet. 14.

The court of appeals, which rejected any claim of

factbound error in the admission of the relevant evidence, see Pet. App. 2a n.1, would have no reason to set

16

aside that jury finding. The government’s expert testified at trial that petitioner’s prescriptions were not for

a legitimate medical purpose and were provided outside

the usual course of professional practice. Gov’t C.A.

Brief 13-15. That testimony provides ample support for

the jury’s finding, and petitioner has identified no basis

for supposing that the court of appeals would have concluded otherwise.

To the contrary, courts of appeals have repeatedly

recognized that the same evidence will ordinarily support a finding that a physician acted “without a legitimate medical purpose” and a finding that he or she acted

“outside the usual course of his or her professional practice.”4 The court below would not have deemed this case

See Armstrong, 550 F.3d at 397-398 (explaining that “knowingly

distributing prescriptions outside the course of professional practice is a sufficient condition to convict a defendant” and that the

phrases “outside the scope of professional practice” and “without a

legitimate medical purpose” may be “considered interchangeable”);

United States v. Rosenberg, 515 F.2d 190, 197 (9th Cir.) (finding “it

difficult to understand how [a physician] can argue that he was not

acting for legitimate medical reasons yet was acting in the course of

his professional practice” and explaining that a determination that

a physician acted outside “the course of professional practice”

means that he took “actions that he d[id] not in good faith believe

[were] for legitimate medical purposes”), cert. denied, 423 U.S. 1031

(1975); see also United States v. Rottschaefer, 178 Fed. Appx. 145,

147-148 (3d Cir.) (noting that “[s]everal courts have held that ‘there

is no difference in the meanings’ ” of the two phrases) (citation omitted), cert. denied, 549 U.S. 887 (2006); United States v. Daniel,

3 F.3d 775, 778 (4th Cir. 1993) (equating the two phrases), cert. denied, 510 U.S. 1130 (1994); United States v. Kirk, 584 F.2d 773, 784

(6th Cir.) (same), cert. denied, 439 U.S. 1048 (1978); United States

v. Plesons, 560 F.2d 890, 897 n.6 (8th Cir.) (same), cert. denied, 434

U.S. 966 (1977).

4

17

to be an outlier, and further review would accordingly

lack practical significance.

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

DAVID M. LIEBERMAN

Attorney

OCTOBER 2024