Petition for Writ of Certiorari — John L. Stanton, Petitioner v. United States
Supreme Court briefNov 6, 2024
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No. 24IN THE
Supreme Court of the United States
JOHN L. STANTON, M.D.,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
ON PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF A PPEALS FOR THE SIXTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
MATTHEW J. PELCOWITZ
CHAPMAN LAW GROUP
701 Waterford Way, Ste. 340
Miami, FL 33126
(305) 712-7177
RONALD W. CHAPMAN II
Counsel of Record
CHAPMAN LAW GROUP
1441 W. Long Lake Rd., Ste. 310
Troy, MI 48098
(248) 644-6326
rwchapman@
chapmanlawgroup.com
Counsel for Petitioner
130658
A
(800) 274-3321 • (800) 359-6859
i
QUESTIONS PRESENTED
T he C i r c u it s h ave appl ie d va st ly d i f fe r ent
interpretations of the ambiguous phrase “outside the
usual course of his professional practice, other than for
a legitimate medical purpose.” Ruan v. United States,
597 U.S. 450, 459 (2022); Gonzales v. Oregon, 546 U.S.
243, 258 (2006); United States v. Moore, 423 U.S. 122, 135
(1975). Circuits applying this phrase in the disjunctive
have convicted physicians of a “knowing or intentional”
deviation from an unenumerated “standard of care.” The
questions presented are:
Whether the phrase to measure authorization under
21 U.S.C. § 841(a) can be applied in the disjunctive.
If the phrase is applied in the disjunctive, whether
the prosecution of a physician for a deviation of an
unenumerated “standard of care” is an improper exercise
of the Commerce Clause.
Whether the phrase can be applied in the disjunctive
to calculate drug weight.
ii
PARTIES TO THE PROCEEDING
Petitioner, defendant-appellant below, is Dr. John
Stanton.
Respondent is the United States of America, appellee
below.
iii
RELATED PROCEEDINGS
United States v. John Stanton, No. 23-5394, United States
Court of Appeals for the Sixth Circuit. Judgments entered
June 6, 2024 and August 8, 2024.
United States v. Maccarone et. al., No. 6:21-cr-00019REW-HAI, United States District Court for the Eastern
District of Kentucky, Judgment entered April 18, 2023.
iv
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . i
PARTIES TO THE PROCEEDING . . . . . . . . . . . . . . . ii
RELATED PROCEEDINGS . . . . . . . . . . . . . . . . . . . . . iii
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . iv
TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . . vi
TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . vii
OPINIONS AND RULINGS BELOW . . . . . . . . . . . . . .1
JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
STATUTORY AND REGULATORY
PROVISIONS INVOLVED . . . . . . . . . . . . . . . . . . . . .1
INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . .5
A. Factual Background . . . . . . . . . . . . . . . . . . . . . . . .5
B. The Federal Criminal Trial . . . . . . . . . . . . . . . . . .6
C. The Court of Appeals’ Decision. . . . . . . . . . . . . . .8
v
Table of Contents
Page
REASONS FOR GRANTING THE PETITION. . . . .10
I.
THE DECISION BELOW CONFLCITS
W I T H DECI SIONS OF O T H ER
CI RC U I T S A N D I S DI F F IC U LT
T O RECONCILE W I T H T HE
DECISIONS OF THIS COURT . . . . . . . . . . . . .12
A. THE COURTS OF APPEALS ARE
DIVIDED ON THE DISJUNCTIVE
V ERSUS CONJ UNCTI V E
READING . . . . . . . . . . . . . . . . . . . . . . . . . . .14
B. T H E C OU R T O F A P P E A L S ’
DECISION IS INCONSISTENT
WITH THIS COURT’S CASE LAW. . . . .18
II. THIS CASE IS AN IDEAL VEHICLE TO
RESOLVE AN IMPORTANT ISSUE . . . . . . .19
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23
vi
TABLE OF APPENDICES
Page
A PPEN DI X A — OPINION A N D
JUDGMENT OF THE UNITED STATES
COURT OF APPEALS FOR THE SIXTH
CIRCUIT, FILED JUNE 5, 2024 . . . . . . . . . . . . . . .1a
A PPENDI X B — J U DGMEN T OF THE
UNITED STATES DISTRICT COURT
F OR T H E E A S T ER N DI S T R IC T OF
KENTUCKY, SOUTHERN DIVISION AT
LONDON, FILED APRIL 18, 2023 . . . . . . . . . . . .18a
APPENDIX C — DENIAL OF REHEARING
OF THE UNITED STATES COURT OF
A PPEALS FOR THE SIXTH CIRCUIT,
FILED AUGUST 8, 2024 . . . . . . . . . . . . . . . . . . . . .34a
vii
TABLE OF CITED AUTHORITIES
Page
Cases
Alleyne v. United States,
570 U.S. 99 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Gonzales v. Oregon,
546 U.S. 243 (2006) . . . . . . . . . . . . . . . . . . . . . . . .19, 20
Gonzales v. Raich,
545 U.S. 1 (2005) . . . . . . . . . . . . . . . . . . . . . . . . 5, 11, 19
Ladner v. United States,
358 U.S. 169 (1958) . . . . . . . . . . . . . . . . . . . . . . . . . . . .19
Ruan v. United States,
597 U.S. 450 (2022). . . . . . . . . . . . . . . . . . . 10, 14-16, 18
United States v. Anderson,
67 F.4th 755 (6th Cir. 2023) . . . . . . . . . . . . . . . . . . . . .21
United States v. Anderson,
No. 2:19-cr-0067-ALM-1 (S.D. Oh. 2021). . . . . . . . . .20
United States v. August,
984 F.2d 705 (6th Cir. 1992). . . . . . . . . . . . . . . . . . . . .13
United States v. Bauer,
82 F.4th 522 (6th Cir. 2023) . . . . . . . . . . . . . . . . . . 16, 17
United States v. Bauer,
No. 3:19-cr-00490-JZ-1 (N.D. Oh. 2022) . . . . . . . . . .20
viii
Cited Authorities
Page
8QLWHG6WDWHVY%HOÀRUH
No. 22-20, 2024 U.S. App. LEXIS 11311
(2d Cir. May 9, 2024) . . . . . . . . . . . . . . . . . . . . . . . . . .14
United States v. Bothra,
No. 2:18-cr-20800, 2022 U.S. Dist. LEXIS 84971
(E.D. Mich. May 11, 2022) . . . . . . . . . . . . . . . . . . .13, 15
United States v. Campbell et al.,
No. 3:17-cr-00087-RGJ-1 (W.D. Ky. 2023) . . . . . . . . .20
United States v. Chube,
538 F.3d 693 (7th Cir. 2008) . . . . . . . . . . . . . . . . . . . .16
United States v. Cristobal,
No. 23-6107, 2024 U.S. App. LEXIS 8380
(2d Cir. Apr. 8, 2024) . . . . . . . . . . . . . . . . . . . . . . . . . .14
United States v. Daniel,
3 F.3d 775 (4th Cir. 1993),
cert. denied, 510 U.S. 1130 (1994). . . . . . . . . . . . . . . . .3
United States v. Doe,
49 F.4th 589 (1st Cir. 2022) . . . . . . . . . . . . . . . . . . . . .14
United States v. Elder,
682 F.3d 1065 (8th Cir. 2012). . . . . . . . . . . . . . . . . . . .15
United States v. Feingold,
454 F.3d 1001 (9th Cir. 2006) . . . . . . . . . . . . . . . . . . .15
ix
Cited Authorities
Page
United States v. Haymond,
588 U.S. 634 (2019). . . . . . . . . . . . . . . . . . . . . . . . . . . .18
United States v. Heaton,
59 F.4th 1226 (11th Cir. 2023) . . . . . . . . . . . . . . . . . . .15
United States v. Hofschulz et al.,
No. 2:18-cr-00145-PP-1 (E.D. Wi. 2021) . . . . . . . . . .20
United States v. Hofschulz,
105 F.4th 923 (7th Cir. 2024) . . . . . . . . . . . . . . . . . . . .21
United States v. Hofschulz,
No. 21-3403 & 21-3404, 2024 U.S. App.
LEXIS 15366 (7th Cir. Jun. 25, 2024) . . . . . . . . . . . .16
United States v. Hurwitz,
459 F.3d 463 (4th Cir. 2006) . . . . . . . . . . . . . . . . . . . .16
United States v. Kabov,
No. 19-50083, No. 19-50089, 2023 U.S. App.
LEXIS 18214 (9th Cir. Jul. 18, 2023) . . . . . . . . . . . . .15
United States v. Kahn,
58 F.4th 1308 (10th Cir. 2023) . . . . . . . . . . . . . . . . . . .16
United States v. King,
898 F.3d 797 (8th Cir. 2018). . . . . . . . . . . . . . . . . . . . .15
United States v. Kirk,
584 F.2d 773 (6th Cir. 1978). . . . . . . . . . . . . . . . . . . . .13
x
Cited Authorities
Page
United States v. Kistler,
No. 2:22-cr-00067-ALM-1 (S.D. Oh. 2023) . . . . . . . .20
United States v. Lamartiniere,
100 F.4th 625 (5th Cir. 2024) . . . . . . . . . . . . . . . . . . . .14
United States v. Maye,
649 Fed. Appx. 15 (2d Cir. 2016) . . . . . . . . . . . . . . . . .14
United States v. Mikaitis,
33 F.4th 393 (7th Cir. 2022) . . . . . . . . . . . . . . . . . . . . .16
United States v. Moore,
423 U.S. 122 (1975). . . . . . . . . . . . . . . . . . 2, 5, 10, 11, 17
United States v. Motley,
No. 21-10296, 2023 U.S. App. LEXIS 34494
(9th Cir. Dec. 29, 2023) . . . . . . . . . . . . . . . . . . . . . . . .15
United States v. Nelson,
383 F.3d 1227 (10th Cir. 2004) . . . . . . . . . . . . . . . . . .16
United States v. Oppong,
No. 21-3003, 2022 U.S. App. LEXIS 9475,
2022 WL 1055915 (6th Cir. Apr. 8, 2022). . . . . . .15, 19
United States v. Petty et al.,
No. 4:20-cr-00290-O-4 (N.D. Tx. 2021) . . . . . . . . . . .20
United States v. Rivera,
74 F.4th 134 (3d Cir. 2023). . . . . . . . . . . . . . . . . . . . . .14
xi
Cited Authorities
Page
United States v. Rosen,
582 F.2d 1032 (5th Cir. 1978). . . . . . . . . . . . . . . . . . .3, 4
United States v. Rottschaefer,
178 Fed. Appx. 145 (3d Cir.), cert. denied, 549 U.S.
887 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
United States v. Seelig,
622 F.2d 207 (6th Cir. 1980) . . . . . . . . . . . . . . . . . . . .13
United States v. Simon,
12 F.4th 1 (1st Cir. 2021) . . . . . . . . . . . . . . . . . . . . . . .14
United States v. Smith,
573 F.3d 639 (8th Cir. 2009) . . . . . . . . . . . . . . . . . . . .15
United States v. Smithers,
92 F.4th 237, 246-47 (4th Cir. 2024) . . . . . . . . . . . . . .16
United States v. Spayd,
No. 23-1303 (9th Cir. 2023) . . . . . . . . . . . . . . . . . . . . .21
United States v. Spayd,
No. 3:19-cr-00111-SLG-MMS-1 (D. Ak. 2023) . . . . .20
United States v. Titus,
78 F.4th 595 (3d Cir. 2023). . . . . . . . . . . . . . . . . . . . . .14
United States v. Volkman,
797 F.3d 377 (6th Cir. 2015). . . . . . . . . . . . . . . . . . 11, 17
xii
Cited Authorities
Page
United States v. Wagoner et al.,
No. 2:17-cv-00478-HAB (N.D. In. 2021) . . . . . . . . . .20
United States v. Wilson,
850 Fed. Appx. 546 (9th Cir. 2021) . . . . . . . . . . . . . . .15
United States v. Woodside,
895 F.3d 894 (6th Cir. 2018). . . . . . . . . . . . . . . . . . . . . 17
Statutes, Rules and Regulations
21 C.F.R. § 1306 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
21 C.F.R. § 1306.04(a) . . . . . . . . . . . . . . . . . . . .1, 12, 18, 19
21 U.S.C. § 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
21 U.S.C. § 841(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2, 11
21 U.S.C. § 841(a)(1). . . . . . . . . . . . . . . . . . . . . . 1, 10, 13, 19
21 U.S.C. § 846 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6, 10
28 U.S.C. § 1254(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
Federal Rule of Evidence 704(b) . . . . . . . . . . . . . . . . . . . .7
Tenn. Code § 63-1-306(a) . . . . . . . . . . . . . . . . . . . . . . . .5, 6
xiii
Cited Authorities
Page
Other Authorities
14. S. Michaela Rikard, et al., Chronic Pain
Among Adults—United States, 2019–2021,
CDC, Apr. 14, 2023, https://www.cdc.gov/mmwr/
volumes/72/wr/mm7215a1.htm . . . . . . . . . . . . . . . . . .20
71 Fed. Reg. 52,720 (Sept. 6, 2006) . . . . . . . . . . . . . . . . . .3
Jeffrey A. Singer, The War on Drugs is Also a
War on Pain Patients, Cato Institute, Apr. 1,
2024, https://www.cato.org/blog/war-drugsalso-war-pain-patients. . . . . . . . . . . . . . . . . . . . . . . . .21
John J. Mulrooney II and Katherine E. Legel,
Current Navigation Points in Drug Diversion
Law: Hidden Rocks in Shallow, Murky,
Drug-Infested Waters, 101 Marq. L. Rev. 333
(2017), https://scholarship.law.marquette.
edu/mulr/vol101/ iss2/3 . . . . . . . . . . . . . . . . . . . 4, 10, 11
Lett er of 30 St at e Attor neys G enera l to
Administrator of DEA, 151 Cong. Rec. 6974
(2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22
Shaun Boyd, Colorado Lawmaker Introduces
Bill to Provide Easier Access to Opioids for
Chronic Pain Sufferers, CBS News, Mar.
3, 2023, https://www.cbsnews.com/colorado/
news/lawmaker-introduces-bill-provide-easieraccess-opioids-chronic-pain-sufferers/ . . . . . . . .21, 22
1
OPINIONS AND RULINGS BELOW
The opinion of the Court of Appeals is reported at 103
F.4th 1204. See Petitioner’s Appendix (“Pet. App.”), infra,
1a-16a. The order of the Sixth Circuit denying rehearing
is not reported. See Pet. App., infra, 34a-35a.
JURISDICTION
The Sixth Circuit entered judgment on June 5, 2024.
The court of appeals denied rehearing on August 8. This
Court’s jurisdiction is invoked under 28 U.S.C. § 1254(1).
STATUTORY AND REGULATORY
PROVISIONS INVOLVED
Section 841(a)(1) of the Controlled Substances Act
(“CSA”), 21 U.S.C. § 841(a)(1), provides:
(a)
Unlawful acts
Except as authorized by this subchapter, it
shall be unlawful for any person knowingly or
intentionally—
(1) to manufacture, distribute, or dispense,
or possess with intent to manufacture,
distr ibute, or dispense, a controlled
substance[.]
21 C.F.R. § 1306.04(a) provides:
Purpose of issue of prescription.
(a) A prescription for a controlled substance
to be effective must be issued for a
2
l e g it i m a t e m e d i c a l p u r p o s e by a n
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
WKH SKDUPDFLVW ZKR ÀOOV WKH SUHVFULSWLRQ
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 section 309 of the Act
(21 U.S.C. § 829) and the person knowingly
ÀOOLQJVXFKDSXUSRUWHGSUHVFULSWLRQDVZHOO
as the person issuing it, shall be subject
to the penalties provided for violations of
the provisions of law relating to controlled
substances.
INTRODUCTION
The Controlled Substances Act (“CSA”), in particular
21 U.S.C. § D ZDVHQDFWHGWRWDUJHWGUXJWUDIÀFNLQJ
In United States v. Moore, 423 U.S. 122 (1975), the Court
DIÀUPHGWKDW&RQJUHVVGHHPHGWKHKDUVKSHQDOWLHVIRU
unlawful distribution under Section 841(a) appropriate
VDQFWLRQIRUGUXJWUDIÀFNLQJE\DUHJLVWHUHGSK\VLFLDQId.
at 137. That’s exactly the way in which the CSA was initially
HQIRUFHG )URP ZKHQ WKH $FW ZDV ÀUVW SDVVHG LQ
through the early 2000s, the CSA was used to prosecute
physicians whose prescribing deviated so visibly from the
“usual course of professional practice” that it followed that
their prescribing was for “other than a legitimate medical
3
purpose.” See 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). And it was these cases, soon after the CSA’s
enactment, that formed the basis for the Rosen factors.
See United States v. Rosen, 582 F.2d 1032 (5th Cir. 1978).
There, the Fifth Circuit compiled a list of factors that it
IRXQGWRFRLQFLGHZLWKGUXJWUDIÀFNLQJId. at 1036.1 The
Drug Enforcement Administration (“DEA”) found that list
persuasive and it was added to the Federal Register. 71
)HG5HJ 6HSW FRGLÀHG&)5
The DEA cautioned, however, that the existence of any of
the Rosen factors alone should not automatically lead to
the conclusion that a physician acted improperly. See Id.
“Rather, each case must be evaluated based on its own
merits in view of the totality of circumstances particular
to the physician and patient.” Id.
1. (1) An inordinately large quantity of controlled substances
was prescribed; (2) Large numbers of prescriptions were issued;
(3) No physical examination was given; (4) The physician warned
WKHSDWLHQWWRÀOOSUHVFULSWLRQVDWGLIIHUHQWGUXJVWRUHV 7KH
physician issued prescriptions knowing that the patient was
delivering the drugs to others; (6) The physician prescribed
controlled drugs at intervals inconsistent with legitimate medical
treatment; (7) The physician involved used street slang rather than
medical terminology for the drugs prescribed; (8) There was no
logical relationship between the drugs prescribed and treatment
of the condition allegedly existing; and (9) The physician wrote
more than one prescription on occasions in order to spread them
out. Rosen, 582 F.2d at 1036.
4
Over time, however, the connective tissue between
prescribing outside the usual course of professional
practice and other than for a legitimate medical purpose
has atrophied. The government now instead prosecutes
physicians based on standards of professional practice
that are increasingly disconnected from prescribing
for other than a legitimate medical purpose. The DEA,
for example, has crafted “general practice standards”
in restricting the way in which medicine is practiced. 2
These “general practice standards” include: failing to
perform an appropriate physical examination; failing
to utilize appropriate diagnostic testing; failing to
devise and document a written treatment plan; failing
to periodically reassess the effectiveness of treatment;
continuing to prescribe controlled substances without
pursuing alternative therapies; repeatedly and continually
prescribing without referring the patient to appropriate
specialists; and failing to keep and maintain records which
FRQWDLQDGHTXDWHÀQGLQJVWRVXSSRUWDGLDJQRVLVDQGWKH
need to prescribe one or more medications.3 Compare these
“general practice standards” to the Rosen factors which
WKH)LIWK&LUFXLWIRXQGFRLQFLGHGZLWKGUXJWUDIÀFNLQJ
See Rosen, 582 F.2d at 1036. The comparison is jarring.
What used to be a targeted approach aimed at preventing
GUXJWUDIÀFNLQJLVQRZDQH[HUFLVHLQUHVWULFWLQJWKHZD\
in which medicine is practiced.
2. John J. Mulrooney II and Katherine E. Legel, Current
Navigation Points in Drug Diversion Law: Hidden Rocks in
Shallow, Murky, Drug-Infested Waters, 101 Marq. L. Rev. 333,
385-86 (2017), https://scholarship.law.marquette.edu/mulr/vol101/
iss2/3.
3.
Id.
5
The government’s errant enforcement of the CSA has
broadened the scope of the Act’s harsh penalties which
ZHUHLQWHQGHGIRUSK\VLFLDQVHQJDJHGLQGUXJWUDIÀFNLQJ
Moore, 423 U.S. at 137. Because the government has moved
DZD\IURPWDUJHWLQJGUXJWUDIÀFNLQJRSWLQJLQVWHDGWR
prosecute physicians even where their prescribing is for a
legitimate medical purpose, the government’s enforcement
of the CSA is no longer a valid exercise of its power under
the Commerce Clause. See Gonzales v. Raich, 545 U.S. 1,
ÀQGLQJWKDWWKH&6$ZDVGHVLJQHGWREDODQFH
WKHEHQHÀFLDOXVHRIPHGLFDWLRQVZKLOHSUHYHQWLQJWKHLU
misuse for which there is an established interstate market
of illegitimate channels).
The Court’s intervention is needed to restore the
boundaries that Congress intended to surround and limit
the CSA.
STATEMENT OF THE CASE
A. Factual Background
Petitioner, Dr. John Stanton, was a physician who
held a valid DEA registration to prescribe controlled
substances and was licensed to practice medicine in
Tennessee. Stanton Br. 11. He provided medical care to a
wide range of patients while practicing at various medical
clinics. Part of that care was his employment at Gateway
Medical Associates, P.C. (“GMA”). Id.
GMA was a pain management medical clinic that was
owned by Dr. Maccarone. See Id. In 2016, Tennessee began
requiring pain management clinics to employ medical
directors. This meant that GMA, pursuant to Tenn. Code
6
§ 63-1-306(a), had to retain a medical director. Because
Dr. Maccarone lacked the credentials to qualify for the
position, he hired Petitioner, who had the appropriate
credentials to serve as the medical director. See Id.
Petitioner began to take on a more active role at
GMA when Dr. Maccarone was forced to take medical
leave in November 2018 and then again in March 2020.
Id. Petitioner immediately started to treat GMA patients,
carrying on Dr. Maccarone’s prescriptions to not disturb
patient continuity of care. Pet. App. 2a-4a. Petitioner did,
however, encourage patients to try alternative treatments
such as physical therapy or injections, and if a patient
declined alternative treatment, Petitioner reduced their
prescriptions pending results from their urine drug
screen. Id. When Dr. Maccarone returned from leave,
3HWLWLRQHU PDGH VXUH WR ZDUQ KLP RI UHG ÁDJV WKDW KH
REVHUYHGZKLOHÀOOLQJLQIRUKLP,G
The government indicted Petitioner along with Dr.
Maccarone and two GMA patient “sponsors,” Jeffrey
Ghent and Terry Prince, in 2021. Petitioner was charged
in a single count for conspiring to distribute controlled
substances in violation of 21 U.S.C. § 846. Id. He
proceeded to trial in the Eastern District of Kentucky. Id.
B. The Federal Criminal Trial
Petitioner’s trial lasted seven days and he took the
stand to testify in his case-in-chief. Id. The jury also
heard from nineteen government witnesses, including Dr.
Maccarone, the “sponsors,” Ghent and Prince, and GMA
patients and employees. Id. “The government also planned
to offer expert testimony that [Petitioner’s] prescription
7
practices lacked a legitimate medical basis.” Id. On the
second day of trial, however, the government asked the
district court to substitute a new expert witness, Dr.
Timothy King, after it had second thoughts about its
existing expert. Id. The trial court held that this late
disclosure would prejudice Petitioner. But the district
court did allow Dr. King to testify as a rebuttal witness
solely in response to Petitioner’s own testimony. Id. Dr.
King’s rebuttal testimony was rebuttal testimony. It did
not include any review of medical records, diagnostic
LPDJLQJRUSUHVFULELQJKLVWRULHV'U.LQJWHVWLÀHGsolely
based on what he heard in open court from Petitioner.4
6WDQWRQ%U,QIDFW'U.LQJWHVWLÀHGWKDWSHUWLQHQW
medical information that was not discussed in court was
wholly omitted from his rebuttal testimony. Id.
3HWLWLRQHUFKDOOHQJHGWKHVXIÀFLHQF\RIWKHHYLGHQFH
moving for judgment of acquittal, both at the close of the
government’s case-in-chief and again at the end of proof.
Stanton Br. 24 n.6. The district court denied both motions
and Petitioner was found guilty of the drug conspiracy
charge and sentenced to 120 months of imprisonment.
Pet. App. 5a-6a. That sentence was based on the 21
4. Petitioner consented to Dr. King sitting in court to listen
to his testimony. 08/26/2022 Tr. 12. Counsel, to be sure, made the
strategic decision to not call Petitioner’s expert to testify and so
he had “no objection to [Dr. King] being in here. I’m not sure what
he would be rebutting if we’re not advancing Hilgenhurst.” Id.
Counsel was wrong because the district court allowed Dr. King to
evaluate whether Petitioner used his “best medical judgment” in
working at GMA. Pet. App. 10a-11a. Typically, such testimony on
the defendant’s state of mind is prohibited under Federal Rule of
Evidence 704(b). See Pet. for Reh’g 5-8. Not in the Sixth Circuit,
however. See Pet. App. 10a-11a.
8
SDWLHQWÀOHVLQWURGXFHGDWWULDOWRWDOLQJDFRQYHUWHGGUXJ
weight of at least 21,524 kilograms. Id. The district court
thus found every prescription provided to the 21 patients
was unauthorized under the CSA. It did so despite the
government failing to provide expert testimony on whether
the prescriptions “lacked a legitimate medical basis,” Pet.
App. 4a-5a, and Petitioner having his medical expert,
Dr. James Patrick Murphy, testify that the prescriptions
were provided for a legitimate medical purpose. Stanton
Br. 36-38.
C. The Court of Appeals’ Decision
Petitioner appealed raising, inter alia, that the
government did not prove that any controlled substances
were unauthorized under the CSA. He highlighted to
the court of appeals that the government did not provide
expert testimony to establish that prescriptions were
issued for other than a legitimate medical purpose: “The
government also planned to offer expert testimony that
[Petitioner’s] prescription practices lacked a legitimate
medical basis.” Pet. App. 4a-5a. In place of that expert
testimony, Dr. King testified on rebuttal, where he
evaluated Petitioner’s testimony that he “used his best
medical judgment in working at GMA.” Id. But Dr. King
QHYHU WHVWLÀHG WKDW SUHVFULSWLRQV ZHUH LVVXHG IRU RWKHU
than a legitimate medical purpose. Stanton Br. 21-22.
Nor could he have, given that his testimony was not
based on any medical records in the case. Id. Petitioner
thus argued that there was insufficient evidence to
prove his involvement in a drug conspiracy because the
government did not prove that any controlled substances
were unauthorized under the CSA, nor that he joined an
agreement to accomplish the same.
9
Petitioner also argued that the district court erred in
calculating drug weight for the same reason. Stanton Br.
36-38. In fact, Petitioner reminded the court of appeals
that while the government failed to provide expert
testimony on the prescriptions at issue, he provided to
the district court expert testimony from Dr. Murphy. Id.
Petitioner urged the court of appeals that the district court
had to consider whether GMA prescriptions were issued
other than for a legitimate medical purpose and not only
rely on if the prescriptions were issued outside the usual
course of professional practice. Because the only expert
testimony on the matter directed that the prescriptions
were issued for a legitimate medical purpose, Petitioner
argued that the district court erred in sentencing him. Id.
The court of appeals was unmoved. It found that not
RQO\ZDVWKHHYLGHQFHVXIÀFLHQWWRFRQYLFW3HWLWLRQHUEXW
that “[t]he question before the jury thus was not whether
a drug conspiracy existed; it was whether Dr. Stanton
agreed to join it.” Pet. App. 6a-10a. In so doing, the court of
DSSHDOVUHIHUHQFHGUHGÁDJVWKDWLWIRXQG3HWLWLRQHUIDLOHG
to cure, for example, long and unusual clinic hours, high
narcotics dosages without individualization or tapering,
and continued prescriptions to patients who failed drug
screens. Id. Whether or not there was a legitimate medical
purpose for the “high narcotics dosages” and “continued
prescriptions to patients who failed drug screens” was
irrelevant. See Id.
The court of appeals also found that “[a]lthough expert
testimony would have been useful” in calculating drug
weight, the record “presents a far cry from the situation
that [Petitioner] posits, in which the government fails to
introduce any evidence, expert or otherwise, to show that a
physician’s careful treatment of patients violated accepted
10
medical standards.” Id. 16a. Again, whether controlled
substances were issued for other than a legitimate
medical purpose was irrelevant. The court of appeals was
instead focused on whether Petitioner violated “medical
standards.” Id.
Petitioner sought rehearing, petitioning the court of
appeals to reconsider the decision. Pet. for Reh’g 1-3. He
argued that to convict for conspiracy under 21 U.S.C. § 846
the government had to prove that controlled substances
were unauthorized under the CSA, or that he conspired
to accomplish the same. Id. 3-5. This necessarily means
that there had to be an agreement to distribute controlled
substances for other than a legitimate medical purpose.
Because the government failed to prove so, Petitioner urged
the court of appeals to vacate his conviction. Id.
Rehearing was denied without comment. Pet. App.
34a-35a.
REASONS FOR GRANTING THE PETITION
A medical doctor may be convicted under the CSA, 21
U.S.C. § 841(a)(1), if the government proves that he or she
prescribed drugs “outside the usual course of professional
practice.” Moore, 423 U.S. at 124. This Court, however,
has repeatedly found that phrase to be “ambiguous” and
“open to varying constructions.” Ruan, 597 U.S. at 459.
That ambiguity has been the government’s playground.
Indeed, the government has continually moved
the goal post on what constitutes the “usual course
of professional practice.” 5 See Lubetsky Petition for
5. John J. Mulrooney II and Katherine E. Legel, Current
Navigation Points in Drug Diversion Law: Hidden Rocks in
11
Certiorari (No. 24-137). What’s more, the government
has done away with proving that a physician distributed
controlled substances other than for a legitimate medical
SXUSRVH:KHWKHURUQRWDSK\VLFLDQLVGUXJWUDIÀFNLQJ
is now beside the point. See United States v. Volkman,
797 F.3d 377, 386 (6th Cir. 2015) (holding that instructing
the jury that a physician engaged in drug dealing and
WUDIÀFNLQJ ZRXOG KDYH ´needlessly narrowed the scope
of the jury’s inquiry.”). This has allowed the government
to use the harsh penalties under Section 841(a), intended
IRUGUXJWUDIÀFNLQJMoore, 423 U.S. at 137, to restrict
PHGLFLQHLQZKDWHYHUZD\LWVHHVÀW3K\VLFLDQVWKDWIDLOWR
fall in line are subject to lengthy periods of imprisonment.
The government’s enforcement of the CSA is no longer
a legitimate exercise of its power. This Court found in
Gonzales that the CSA was valid under the Commerce
&ODXVHLQSDUWEHFDXVHLWWDUJHWHGGUXJWUDIÀFNLQJ³LH
the illegitimate channels of controlled substances for
which there was an established and lucrative interstate
PDUNHW6HH86DW'UXJWUDIÀFNLQJKRZHYHULV
separate and distinct from the practice of medicine. Id. at
48 (O’Connor, J., dissenting, joined by Rehnquist, C.J., and
Thomas, J.) (“Both federal and state legislation—including
the CSA itself, the California Compassionate Use Act,
and other state medical marijuana legislation—recognize
that medical and nonmedical (i.e., recreational) uses of
drugs are realistically distinct and can be segregated,
and regulate them differently.”).
Shallow, Murky, Drug-Infested Waters, 101 Marq. L. Rev. 333,
385-86 (2017), https://scholarship.law.marquette.edu/mulr/vol101/
iss2/3.
12
As the government’s enforcement of the CSA is
LQFUHDVLQJO\ UHPRYHG IURP 6WDWHVSHFLÀF PHGLFDO DQG
prescribing requirements, it continues to test the outer
limits of its authority under the Commerce Clause.
See Lubetsky Petition for Certiorari (No. 24-137). In
circuits that employ the disjunctive reading to measure
authorization, like the Sixth Circuit, the government is
particularly successful at spreading the outer limits of
its authority. In those circuits physicians are convicted of
unlawful distribution based only on whether they deviate
from the federal government’s heightened standard for
prescribing in the usual course of professional practice—
regardless of how disconnected that heightened standard
is from State-specific prescribing requirements or
prescribing for other than a legitimate medical purpose.
The Court should grant certiorari to decide exactly
how far the government’s authority under the Commerce
Clause extends and to resolve the circuit split on the
disjunctive versus conjunctive reading in unlawful
distribution cases and conspiracy to commit the same.
I.
THE DECISION BELOW CONFLCITS WITH
DECISIONS OF OTHER CIRCUITS AND IS
DIFFICU LT TO RECONCILE WITH THE
DECISIONS OF THIS COURT
Every circuit court measures authorization using 21
C.F.R. § 1306.04(a)’s requirement that for a prescription
to be effective it must 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).
Some circuits, however, read that requirement in the
disjunctive whereas others read the requirement in
13
the conjunctive. Still, others oscillate between the two
GLIIHUHQWUHDGLQJVSURYLGLQJVRPHSK\VLFLDQVWKHEHQHÀW
of the conjunctive formulation but convicting others if
they deviate from either prescribing in the usual course
of professional practice or prescribe for other than a
legitimate medical purpose.
The Si xth Circuit seems to have adopted the
disjunctive reading; however, it is not clear given that it
has vacillated between the disjunctive and conjunctive
reading. United States v. Bothra, No. 2:18-cr-20800, 2022
U.S. Dist. LEXIS 84971, at *10-*13 (E.D. Mich. May
11, 2022) (discussing how decades of convoluted Sixth
Circuit case law muddied the waters on the disjunctive
versus conjunctive paradigm); United States v. Kirk, 584
F.2d 773, 784 (6th Cir. 1978) (holding that two essential
elements of unlawful distribution are that prescriptions
are “‘not in the usual course of professional practice’” and
‘not for a legitimate medical or research purpose.’”); but
see id ÀQGLQJWKDWWKHUHLVQRGLIIHUHQFHLQWKHPHDQLQJV
of the statutory phrases); United States v. Seelig, 622 F.2d
WK&LU ÀQGLQJWKDWDFRQYLFWLRQXQGHU
§ 841(a)(1) requires the government to prove beyond a
reasonable doubt that the drugs were distributed outside
the usual course of professional practice); compare United
States v. August, 984 F.2d 705, 712 (6th Cir. 1992) (holding
that a prescription must be not for a legitimate medical
purpose and not in the usual course of professional
practice for a doctor to be found guilty of a controlled
substances violation).
The disjunctive reading is in sharp conflict with
the conjunctive reading of many other circuit courts.
$V GHWDLOHG EHORZ WKDW FRQÁLFW LV RQO\ JURZLQJ GHHSHU
14
as circuit courts are encouraged to reevaluate their
disjunctive reading following this Court’s decision in
Ruan7KHGLVMXQFWLYHGHFLVLRQLVDOVRGLIÀFXOWWRVTXDUH
with this Court’s precedent.
A.
THE COU RT S OF A PPEA LS A RE
DIVIDED ON THE DISJUNCTIVE VERSUS
CONJUNCTIVE READING
The First, Second, Third, Fifth, and Eleventh Circuits
have settled on the disjunctive reading and have remained
faithful to that formulation. United States v. Simon,
12 F.4th 1, 24 (1st Cir. 2021); compare United States v.
Doe )WK VW&LU ÀQGLQJWKDWXQGHU
Massachusetts law unlawful dispensing is the issuance
of an invalid prescription . . . i.e., one issued without a
legitimate medical purpose and not in the usual course
of the physician’s professional practice); United States
v. Maye, 649 Fed. Appx. 15, 16 (2d Cir. 2016); United
States v. Cristobal, No. 23-6107, 2024 U.S. App. LEXIS
DW G &LU $SU ÀQGLQJ VXIÀFLHQW
evidence to sustain unlawful distribution conviction where
evidence that prescribing fell outside the usual course of
professional practice); 8QLWHG6WDWHVY%HOÀRUH, No. 2220, 2024 U.S. App. LEXIS 11311, at *3 (2d Cir. May 9,
2024) (same); United States v. Rivera, 74 F.4th 134, 138
G&LU ELQGLQJSUHFHGHQWFRQÀUPVWKHGLVMXQFWLYH
reading to measure authorization); compare United States
v. Titus )WK G &LU ÀQGLQJ MXU\
instructions complied with Ruan where they required
WKH MXU\ WR ÀQG GHIHQGDQW NQRZLQJO\ RU LQWHQWLRQDOO\
distributed controlled substances outside the usual course
of professional practice and not for a legitimate medical
purpose); United States v. Lamartiniere, 100 F.4th 625,
15
638-43 (5th Cir. 2024); United States v. Heaton, 59 F.4th
1226, 1239-40 (11th Cir. 2023).
The Eighth and Ninth Circuits appear to have settled
on the conjunctive reading. See United States v. Smith, 573
F.3d 639, 649 (8th Cir. 2009); United States v. Feingold,
454 F.3d 1001, 1012 (9th Cir. 2006); see also United States
v. Wilson, 850 Fed. Appx. 546, 547 (9th Cir. 2021); United
States v. Kabov, No. 19-50083, No. 19-50089, 2023 U.S.
$SS/(;,6DW WK&LU-XO ÀQGLQJ
no issue with district court’s conjunctive instruction but
remanding for the lower court to decide whether the
instruction complied with the required mens rea following
Ruan and Rehaif ); United States v. Motley, No. 21-10296,
2023 U.S. App. LEXIS 34494, at *7 (9th Cir. Dec. 29,
ÀQGLQJQRHUURUZLWKORZHUFRXUW·VFRQMXQFWLYHMXU\
instruction). The Eighth Circuit, however, has hinted that
it may have moved to the disjunctive reading instead. See
United States v. Elder, 682 F.3d 1065, 1068-69 (8th Cir.
2012); United States v. King, 898 F.3d 797, 807 (8th Cir.
2018) (citing to Smith, 573 F.3d at 647-49 and suggesting
that the conjunctive reading is appropriate).6
The Sixth Circuit, along with the Fourth, Seventh and
Tenth Circuits, have vacillated between the disjunctive
and conjunctive reading. See Bothra, LEXIS 84971, at
*10-*13; United States v. Oppong, No. 21-3003, 2022 U.S.
App. LEXIS 9475, 2022 WL 1055915, at *15 (6th Cir. Apr.
8, 2022) (holding that “binding case law does not support
6. The Eighth Circuit has not published an opinion on the
disjunctive versus conjunctive reading following this Court’s
decision in Ruan. There also appears to be no unpublished
opinions.
16
[the conjunctive reading of the] jury-instructions.”) United
States v. Bauer, 82 F.4th 522, 528 (6th Cir. 2023) (holding
that registered doctors are among those authorized to
prescribe controlled substances but only when issued for a
legitimate medical purpose . . . acting in the usual course
of his professional practice); United States v. Hurwitz, 459
F.3d 463, 475 (4th Cir. 2006) (holding to convict a physician
for unlawful distribution the government must prove, inter
alia, that the defendant’s actions were not for legitimate
medical purposes or were beyond the bounds of medical
practice); compare United States v. Smithers, 92 F.4th
WK &LU ÀQGLQJ WKDW Ruan requires
that a physician knowingly or intentionally prescribed
in an unauthorized manner but that acting outside the
bounds of medical practice is a purely objective standard);
Id. at 250 n.5 (directing the panel does not reach whether
a disjunctive jury instruction is accurate post-Ruan);
Jong Hi Bek, 493 F.3d at 798; United States v. Chube,
538 F.3d 693, 699 (7th Cir. 2008); compare United States
v. Mikaitis, 33 F.4th 393, 402 (7th Cir. 2022) (holding
that to convict physician the government was required
to prove that he knowingly distributed drugs outside
the usual course of professional practice and not for a
legitimate medical purpose); United States v. Hofschulz,
No. 21-3403 & 21-3404, 2024 U.S. App. LEXIS 15366,
DW WK &LU -XQ ÀQGLQJ WKH FRQMXQFWLYH
reading is an accurate statement of the law and fully
compliant with Ruan); United States v. Nelson, 383 F.3d
1227, 1232-33 (10th Cir. 2004); but see United States v.
Kahn)WK WK&LU ÀQGLQJWKDW
“outside the course of professional practice” is an objective
measure of a physician’s prescribing and that Ruan held
the government must prove the defendant subjectively
knew or intended to prescribe in an unauthorized manner).
17
Petitioner was one of the less fortunate physicians in the
6L[WK&LUFXLW+LVGUXJWUDIÀFNLQJFRQVSLUDF\FRQYLFWLRQ
was upheld in the absence of proof that prescriptions were
issued other than for a legitimate medical purpose (and
proof that he conspired to do the same). Pet. App. 4a-5a
(“The government also planned to offer expert testimony
that [Petitioner’s] prescription practices lacked a legitimate
medical basis.”). But he is hardly the only one. Physicians
in the Sixth Circuit are routinely convicted regardless of
whether their prescribing was for other than a legitimate
medical purpose. See Volkman, 797 F.3d at 386 (refusing
to narrow the scope of the jury’s inquiry to whether
WKH SK\VLFLDQ ZDV HQJDJHG LQ GUXJ WUDIÀFNLQJ (YHQ D
“physician on the vanguard of pain management” with
´QR ÀQDQFLDO LQFHQWLYH WR RYHUSUHVFULEH RSLRLGVµ PD\ EH
convicted under the Sixth Circuit’s disjunctive reading.
Bauer, 82 F.4th at 533. From there, the Sixth Circuit
narrows its inquiry on “medical standards” when evaluating
DSK\VLFLDQ·VVHQWHQFH6HH3HW$SSDD ÀQGLQJWKDW
drug weight can be calculated only based on whether a
physician violated “accepted medical standards.”). Those
harsh penalties under the CSA, Moore, 423 U.S. at 137,
become even more punitive when a simple departure from
DFFHSWHGPHGLFDOVWDQGDUGVZLOOVXIÀFH
Bottom line is that drug weight must be based on
a preponderance of the evidence, reasonable, and a
conservative estimate of the amount of drugs involved. Pet.
App. 15a-16a (citing United States v. Woodside, 895 F.3d
894, 900-02 (6th Cir. 2018)); see Alleyne v. United States,
570 U.S. 99, 116 (2013). To ignore whether prescriptions
were issued for other than a legitimate medical purpose
and solely focus on if those prescriptions were distributed
outside the usual course of professional practice fails to
18
conform with that standard. See Ruan, 597 U.S. at 454
(citing 21 C.F.R. § 1306.04(a)). Indeed, whether controlled
substances were issued for a legitimate medical purpose
directly weighs on whether it is more likely than not
that prescriptions were unauthorized under the CSA.
See United States v. Haymond, 588 U.S. 634, 638 (2019)
(confirming that preponderance of the evidence for
sentencing means a fact is more likely than not).
The Sixth Circuit is using the disjunctive reading to
measure authorization to circumvent the preponderance
of the evidence standard for sentencing.
B. THE COURT OF APPEALS’ DECISION IS
INCONSISTENT WITH THIS COURT’S CASE
LAW
Every time this Court has had the opportunity it has
been clear that Section 1306.04(a)’s regulatory language
GHÀQLQJDQDXWKRUL]HGSUHVFULSWLRQLVDPELJXRXVZULWWHQ
LQ JHQHUDOLWLHV VXVFHSWLEOH WR PRUH SUHFLVH GHÀQLWLRQ
and open to varying constructions. Ruan, 597 U.S. at
459. There, the Court found that “[a] strong scienter
requirement helps reduce the risk of ‘overdeterrence,’
i.e., punishing conduct that lies close to, but on the
permissible side of, the criminal line.” Id. A strong scienter
requirement means nothing, however, if the conduct that
it is applied to is a moving target, vague and incapable of
DFRPPRQGHÀQLWLRQ$QGWKDW·VH[DFWO\ZKDW´WKHXVXDO
course of professional practice” has devolved into under
the Sixth Circuit’s disjunctive reading. See Lubetsky
Petition for Certiorari (No. 24-137). On that basis, the
disjunctive reading should be set aside for the conjunctive
reading of the regulatory language.
19
Moreover, the conjunctive reading is required under
the rule of lenity. That rule requires that the ambiguity
in § 1306.04(a)’s regulatory language, as applied to 21
U.S.C. § 841(a)(1), should be construed narrowly in favor
of the defendant—that is, the regulatory language should
be read in the conjunctive when measuring authorization.
See Ladner v. United States, 358 U.S. 169, 178 (1958).
This is doubtless given that the government has extended
prosecution under § 841(a)(1) to prescribing that squarely
falls within the usual course of professional practice of
VSHFLÀFVWDWHVEXWQRQHWKHOHVVH[FHHGVWKHJRYHUQPHQW·V
heightened prescribing standard. See Gonzales, 546 U.S.
at 270 (holding that the structure and operation of the CSA
presume and rely upon a functioning medical profession
regulated under the States’ police powers); Gonzales, 545
U.S. at 48 (O’Connor, J., dissenting, joined by Rehnquist,
C.J., and Thomas, J.) (holding that the government’s
authority under the Commerce Clause should not extend
to the medical uses of drugs which should be regulated
at the state level). This Court, to be sure, has held that
statutes should express the legislative intent in enacting
them. See Ladner, 358 U.S. at 177-78.
That doesn’t matter in the Sixth Circuit. Instead,
binding case law instructs that the disjunctive reading is
appropriate. Oppong, LEXIS 9475, at *14-15. No lenity
was, or will be shown, absent this Court’s intervention.
II. T HIS CA SE IS A N I DEA L V EHICLE T O
RESOLVE AN IMPORTANT ISSUE
This case is profoundly important. Clear notice to
physicians of their legal liability for prescribing decisions
is vital to this nation. Millions of patients live with chronic
20
pain,7 and while there is a dispute as to the appropriateness
of long-term chronic opioid therapy, doctors are entitled
to know when their conduct is deemed criminal. Yet, the
government in crafting its own unenumerated prescribing
standard has encroached on the State’s authority to
regulate the practice of medicine, thereby depriving
physicians of notice of what constitutes unauthorized
prescribing. See Gonzales, 546 U.S. at 270. This has turned
the CSA on its head. Rather than state governments
setting the rubric for medicine and prescribing and the
federal government enforcing the CSA based on that
rubric, the federal government has seized the ambiguity in
the “usual course of professional practice” and crafted its
own restrictive and unenumerated prescribing standard,
forcing physicians to heed that standard or face criminal
prosecution. See Lubetsky Petition for Certiorari (No.
24-137).
Dr. King, a regular on the government side, 8 is a
perfect example of the government’s unenumerated
prescribing standard. Indeed, he regularly applies
KLV ÀIWHHQ SRLQW ´VWDQGDUG RI FDUHµ LQ WHVWLI\LQJ WKDW
7. 14. S. Michaela Rikard, et al., Chronic Pain Among
Adults—United States, 2019–2021, CDC, Apr. 14, 2023, https://
www.cdc. gov/mmwr/volumes/72/wr/mm7215a1.htm.
8. United States v. Anderson, No. 2:19-cr-0067-ALM-1 (S.D.
Oh. 2021); United States v. Petty et al., No. 4:20-cr-00290-O-4
(N.D. Tx. 2021); United States v. Campbell et al., No. 3:17-cr00087-RGJ-1 (W.D. Ky. 2023); United States v. Bauer, No. 3:19-cr00490-JZ-1 (N.D. Oh. 2022); United States v. Hofschulz et al.,
No. 2:18-cr-00145-PP-1 (E.D. Wi. 2021); United States v. Spayd,
No. 3:19-cr-00111-SLG-MMS-1 (D. Ak. 2023); United States v.
Kistler, No. 2:22-cr-00067-ALM-1 (S.D. Oh. 2023); United States
v. Wagoner et al., No. 2:17-cv-00478-HAB (N.D. In. 2021).
21
physicians have departed from prevailing “medical
standards.” In United States v. Anderson, 67 F.4th 755
WK &LU IRU H[DPSOH 'U .LQJ XVHG KLV ´ÀIWHHQ
standards of care commonly applied to pain management
practices” in evaluating a physician’s prescribing. Id. at
767. Anderson concerned a physician’s prescribing in
Ohio. Id. DW 'U.LQJWKHQDSSOLHGWKHVDPHÀIWHHQ
point standard in United States v. Spayd, No. 23-1303
(9th Cir. 2023), where the appeal is pending before the
Ninth Circuit. Appellant Br., Dkt. 18 (Feb. 5, 2024). There,
however, it was an advanced nurse practitioner that was
prosecuted for her prescribing in Alaska. Whether it’s
Ohio or Alaska, a physician or nurse practitioner, Dr.
.LQJLVUHDG\WRXVHKLVÀIWHHQSRLQWVWDQGDUGRIFDUHSee
United States v. Hofschulz, 105 F.4th 923, 926, 931 (7th
&LU 'U.LQJXVLQJKLVÀIWHHQSRLQWVWDQGDUGWR
evaluate a nurse practitioner’s prescribing in Wisconsin).
,Q WKLV FDVH 'U .LQJ XVHG KLV ÀIWHHQSRLQW VWDQGDUG
to evaluate Petitioner’s prescribing in Tennessee. The
federal government, through its experts like Dr. King and
Dr. Rubenstein, Lubetsky Petition for Certiorari (No. 24137), has advanced its own heightened and unenumerated
prescribing standard unmoored from State-specific
prescribing requirements.
The real victims, however, are the patients. Indeed,
chronic pain patients have “become collateral casualties
in the government’s war on drugs.” 9 In response, state
lawmakers and attorney generals are pushing for
change: For the federal government to stop forcing
physicians to set aside their role as healer. Shaun Boyd,
9. Jeffrey A. Singer, The War on Drugs is Also a War on
Pain Patients, Cato Institute, Apr. 1, 2024, https://www.cato.org/
blog/war-drugs-also-war-pain-patients.
22
Colorado Lawmaker Introduces Bill to Provide Easier
Access to Opioids for Chronic Pain Sufferers, CBS News,
Mar. 3, 2023, https://www.cbsnews.com/colorado/news/
lawmaker-introduces-bill-provide-easier-access-opioidschronic-pain-sufferers/ (“For more than a year, Ginal has
worked with doctors, pharmacists, and patient advocates
to draft a bill that protects providers who prescribe highdose opioids from disciplinary action, prevents them from
denying treatment based on a prescription, and prohibits
them from forcibly tapering a prescription.”); Letter of 30
State Attorneys General to Administrator of DEA, 151
Cong. Rec. 6974 (2005).
The government may be well-intentioned in its
initiatives to combat an ongoing crisis with the distribution
of illegal opioids. Nonetheless, controlled substances
play a crucial role in treating and managing many
patients’ pain. These patients and their physicians will
continue to suffer at the hands of the government’s errant
enforcement of the CSA together with the Sixth Circuit’s
disjunctive reading to measure authorization. The Court’s
intervention is needed to add balance to what often seem
to be competing interests: The need to protect against
the illegal use of opioids and the genuine need for access
to opioids to treat pain.
23
CONCLUSION
The petition for a writ of certiorari should be granted.
Respectfully submitted,
MATTHEW J. PELCOWITZ
CHAPMAN LAW GROUP
701 Waterford Way, Ste. 340
Miami, FL 33126
(305) 712-7177
RONALD W. CHAPMAN II
Counsel of Record
CHAPMAN LAW GROUP
1441 W. Long Lake Rd., Ste. 310
Troy, MI 48098
(248) 644-6326
rwchapman@
chapmanlawgroup.com
Counsel for Petitioner
APPENDIX
i
TABLE OF APPENDICES
Page
A PPEN DI X A — OPINION A N D
JUDGMENT OF THE UNITED STATES
COURT OF APPEALS FOR THE SIXTH
CIRCUIT, FILED JUNE 5, 2024 . . . . . . . . . . . . . . .1a
A PPENDI X B — J U DGMEN T OF THE
UNITED STATES DISTRICT COURT
F OR T H E E A S T ER N DI S T R IC T OF
KENTUCKY, SOUTHERN DIVISION AT
LONDON, FILED APRIL 18, 2023 . . . . . . . . . . . .18a
APPENDIX C — DENIAL OF REHEARING
OF THE UNITED STATES COURT OF
A PPEALS FOR THE SIXTH CIRCUIT,
FILED AUGUST 8, 2024 . . . . . . . . . . . . . . . . . . . . .34a
1a
AppendixAND
A JUDGMENT OF
APPENDIX A — OPINION
THE UNITED STATES COURT OF APPEALS FOR
THE SIXTH CIRCUIT, FILED JUNE 5, 2024
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
File Name: 24a0126p.06
No. 23-5394
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOHN L. STANTON, M.D.,
Defendant-Appellant.
May 28, 2024, Argued
June 5, 2024, Decided;
June 5, 2024, Filed
Appeal from the United States District Court
for the Eastern District of Kentucky at London.
No. 6:21-cr-00019-4—Robert E. Wier, District Judge.
Before: SUTTON, Chief Judge;
CLAY and BUSH, Circuit Judges.
2a
Appendix A
OPINION
SUTTON, Chief Judge. Dr. John Stanton served as the
medical director for a pain clinic in northern Tennessee.
The federal government alleged that the clinic operated
as a pill mill and charged Dr. Stanton with conspiring to
violate federal drug laws. After a seven-day trial, a jury
convicted him. On appeal, Dr. Stanton challenges the
VXIÀFLHQF\RIWKHHYLGHQFHWRVXSSRUWWKHMXU\·VYHUGLFW
DQGVHYHUDOUXOLQJVE\WKHWULDOFRXUW:HDIÀUP
I.
In 2000, Dr. James Maccarone opened Gateway
Medical Associates as a primary care medical practice in
Clarksville, Tennessee. After a dozen years in operation,
Gateway began to serve more patients seeking treatment
for pain management. Over time, Dr. Maccarone came to
realize that his clinic had gained a “reputation” as a “pill
mill” where patients could “walk in, . . . pay whatever it
is that it costs, and . . . walk out with narcotics.” R.307
DW 3DWLHQWVGURYHDVORQJDVÀYHKRXUVHDFKZD\WR
reach the clinic, drove by several other pain management
clinics along the way, then waited in the parking lot past
midnight to be seen, all while claiming (in many cases) to
suffer from back pain. Drug dealers “sponsored” many of
these patients so they could obtain prescription narcotics.
R.306 at 270.
“[D]rowning in debt” and recognizing that he could
charge more than twice as much for a pain visit as he
did for primary care, Dr. Maccarone leaned into the
3a
Appendix A
FOLQLF·V JURZLQJ UHSXWDWLRQ DV D ´SLOO PLOOµ 5 DW
218. Disregarding medical standards, Dr. Maccarone
prescribed opioids even after patients failed drug tests,
and on the rare occasions when he discharged patients
for testing positive, he would allow them back into the
practice if they paid an extra fee.
In July 2016, Tennessee began requiring pain
management clinics to employ medical directors. See
Tenn. Code § 63-1-306(a). Dr. Maccarone lacked the
credentials to qualify for this position. But he knew Dr.
Stanton. Stanton practiced orthopedic surgery at the
IDFLOLW\QH[WGRRUDQGKDGUHFHLYHGFHUWLÀFDWLRQLQSDLQ
management. Dr. Stanton already served as the medical
director for another clinic, and he agreed to serve this
role at Gateway as well in return for a salary of $1,500
per week.
$V*DWHZD\·VPHGLFDOGLUHFWRU'U6WDQWRQRYHUVDZ
its pain management services and safeguards, including
state mandated policies for urine screening and pill
counts. Dr. Stanton eventually warned Dr. Maccarone
WKDW *DWHZD\·V XQXVXDO KRXUV ORQJGLVWDQFH SDWLHQW
population, and high levels of medication raised “red
ÁDJVµ5DW%XW'U0DFFDURQHLJQRUHG'U
6WDQWRQ·V UHFRPPHQGDWLRQV WR WDSHU RII KLJK QDUFRWLFV
doses, and Dr. Stanton continued to sign off on state
compliance reports despite his concerns.
When Dr. Maccarone took an emergency medical
leave of absence in November 2018, Dr. Stanton assumed
responsibility for his patients. Dr. Stanton would see
4a
Appendix A
as many as three dozen patients in a single afternoon.
+H PDLQWDLQHG 'U 0DFFDURQH·V SUDFWLFH RI SUHVFULELQJ
narcotics to patients who failed drug screens. But he did
UHGXFHWKHVHSUHVFULSWLRQVE\DVWDQGDUGDPRXQWRIÀYHRU
ten pills when patients refused his advice to try injections
or physical therapy as alternatives. After Dr. Maccarone
returned to the practice, Dr. Stanton continued to see his
patients. Between November 2018 and October 2020, Dr.
Stanton wrote roughly 5,800 narcotics prescriptions, and
Dr. Maccarone wrote about 9,000 prescriptions.
*DWHZD\·VSUHVFULSWLRQSUDFWLFHVWRJHWKHUZLWKODUJH
numbers of patients “tailgating” in the parking lot for
hours, led state and federal investigators to scrutinize the
clinic. R.305 at 103. After conducting a warrant-authorized
search of Gateway, the government indicted Dr. Stanton,
Dr. Maccarone, and two patient sponsors, Jeffrey Ghent
and Terry Prince, for conspiring to distribute controlled
substances without a legitimate medical purpose. Dr.
Maccarone and the sponsors pleaded guilty. Dr. Stanton
went to trial.
Over the course of seven days, the jury heard from
nineteen government witnesses, including Dr. Maccarone,
the sponsors, and several clinic patients, as well as
from Dr. Stanton and two other defense witnesses. The
government also planned to offer expert testimony that
'U6WDQWRQ·VSUHVFULSWLRQSUDFWLFHVODFNHGDOHJLWLPDWH
medical basis. On the second day of trial, it asked the court
to substitute a new expert witness, Dr. Timothy King,
after it had second thoughts about its existing expert. The
trial court held that this late disclosure would prejudice
5a
Appendix A
Dr. Stanton. But the court did allow Dr. King to testify
DVDUHEXWWDOZLWQHVVVROHO\LQUHVSRQVHWR'U6WDQWRQ·V
own testimony.
The jury found Dr. Stanton guilty of the drug
conspiracy charge. At sentencing, the court concluded
WKDW WKH ÀOHV IRU SDWLHQWV LQWURGXFHG DW WULDO VKRZHG
Dr. Stanton had prescribed a converted drug weight of
at least 21,524 kilograms. On that basis, the Sentencing
Guidelines recommended a minimum sentence of 188
months. The trial court varied downward to 120 months.
II.
On appeal, Dr. Stanton challenges his conviction and
VHQWHQFHLQÀYHZD\V LQVXIÀFLHQWHYLGHQFHWRFRQYLFW
him for conspiracy; (2) reversible error in allowing Dr.
King to testify on rebuttal; (3) abuse of discretion in
instructing the jury on deliberate ignorance; (4) reversible
HUURULQUHVSRQGLQJWRWKHMXU\·VTXHVWLRQVDERXWWKHMXU\
LQVWUXFWLRQV DQG LQVXIÀFLHQWHYLGHQFHWRVXSSRUWWKH
drug weight calculation at sentencing.
Sufficiency of the evidence. In reviewing this
challenge, we make all reasonable inferences from the
testimony and trial record in favor of the jury verdict.
United States v. Anderson, 67 F.4th 755, 768 (6th Cir. 2023)
(per curiam). We will reverse only if no “trier of fact” could
have found that the government proved the elements of
this crime beyond a reasonable doubt. Id.
6a
Appendix A
To prove its case, the government had to establish that
two or more people agreed to violate federal drug laws and
that Dr. Stanton knowingly and voluntarily participated in
the agreement. See United States v. Wheat, 988 F.3d 299,
306 (6th Cir. 2021). The government may establish these
elements of the crime through circumstantial evidence,
including knowledge of unusual prescribing practices or
knowledge of unusual patient protocols. United States v.
Volkman, 797 F.3d 377, 390 (6th Cir. 2015); see United
States v. Fowler, 819 F.3d 298, 309 (6th Cir. 2016).
7KHHYLGHQFHVXIÀFHGWRPDNHWKLVÀQGLQJ7KHMXU\
heard considerable evidence from Dr. Maccarone and
other witnesses that Gateway operated as a pill mill and
violated federal law in doing so. The question before the
jury thus was not whether a drug conspiracy existed; it
was whether Dr. Stanton agreed to join it. Ample evidence
showed that Dr. Stanton agreed to join the conspiracy.
Dr. Stanton agreed to help Dr. Maccarone operate
Gateway by serving as its medical director. He saw
SOHQW\RIUHGÁDJVWKDW*DWHZD\RSHUDWHGDVDSLOOPLOO
and declined to cure them: the long and unusual clinic
hours; patients traveling long distances from out of
state; high narcotics dosages without individualization
or tapering; and continued prescriptions to patients who
failed drug screens. See United States v. Lang, 717 F.
$SS·[ WK&LU DIÀUPLQJDFOLQLFRZQHU·V
conviction for drug conspiracy when “it was clear to
even casual observers that [the clinic] was a pill mill”).
7a
Appendix A
(YHQ DIWHU VHHLQJ WKHVH UHG ÁDJV KH FRQWLQXHG WR VLJQ
off on compliance reports, and he continued to see the
high-dosage patients whose prescriptions Dr. Maccarone
refused to lower.
7KH MXU\ DOVR FRXOG KDYH IRXQG WKDW 'U 6WDQWRQ·V
prescriptions furthered the conspiracy. He spent only a
few minutes with each of his own patients before signing
off on pre-printed prescriptions. His medical assistant
WHVWLÀHG WKDW QHLWKHU GRFWRU XVHG WKH FOLQLF·V HOHFWURQLF
PHGLFDOUHFRUGVDQGDSKDUPDF\H[SHUWWHVWLÀHGWKDW'U
6WDQWRQ·VSUHVFULSWLRQVODFNHGWKHGRVDJHLQGLYLGXDOL]DWLRQ
of legitimate pain management practices. Even after Dr.
Maccarone returned to Gateway, Dr. Stanton continued
WR VHH SDWLHQWV DQG ZURWH DOPRVW RI *DWHZD\·V
prescriptions between November 2018 and October 2020.
7KH MXU\ DOVR FRXOG KDYH IRXQG WKDW 'U 6WDQWRQ·V
unconvincing efforts to clear his name with investigators
amounted to an effort to cover up his participation in
the drug conspiracy. Dr. Stanton, for instance, told an
investigator from the Drug Enforcement Agency that
Gateway discharged patients who tested positive for
KHURLQDQGFRFDLQHHYHQWKRXJK*DWHZD\·VUHFRUGVVKRZHG
otherwise. Cf. United States v. Gardiner, 463 F.3d 445,
462-63 (6th Cir. 2006) (distinguishing acts of concealment
that further an ongoing conspiracy from those that cover
up previous crimes).
8a
Appendix A
Dr. Stanton replies that the government failed to
prove that he wrote any prescriptions at Gateway without
proper medical authorization. But that proof would have
mattered only if the government had charged Dr. Stanton
with distributing controlled substances under 21 U.S.C.
§ 841(a). See Ruan v. United States, 597 U.S. 450, 457, 142
S. Ct. 2370, 213 L. Ed. 2d 706 (2022). It did not. It instead
charged him with conspiring to distribute drugs, 21 U.S.C.
§ 846, a crime that targets the agreement to commit the
unlawful act and a crime that does not turn on whether
any one conspirator completed the underlying substantive
crime. Wheat, 988 F.3d at 306. The government proved
its case by showing that Dr. Stanton knowingly agreed
to help Gateway and Dr. Maccarone illegally distribute
controlled substances.
Dr. Stanton points out that the jury heard evidence that
he never knowingly agreed with any other conspirator to
GLVSHQVHQDUFRWLFV)RULQVWDQFH 'U0DFFDURQHWHVWLÀHG
that he never spoke with Dr. Stanton about operating
*DWHZD\DVDSLOOPLOO *KHQWWHVWLÀHGWKDW'U6WDQWRQ
evaluated his shoulder and recommended surgery before
SUHVFULELQJQDUFRWLFV DQG3ULQFHWHVWLÀHGKHQHYHUVSRNH
with Dr. Stanton at all. But the jury could reasonably
FUHGLW'U0DFFDURQH·VWHVWLPRQ\WKDWKHKLUHG'U6WDQWRQ
with the “mutual understanding of what [Dr. Maccarone]
was doing and of what [Dr. Stanton] was doing.” R.307
DW,WFRXOGYLHZ'U6WDQWRQ·VH[DPLQDWLRQRI*KHQW
as pretextual and, even if not, as one that still involved
a pre-printed prescription, as with many other patients.
9a
Appendix A
And it makes no difference that he did not speak to one
of the sponsors. Once the jury heard testimony from Dr.
0DFFDURQHDQGRWKHUZLWQHVVHVGHÀQLQJWKHVFRSHRIWKH
conspiracy and providing circumstantial evidence of the
FRQVSLUDF\LWQHHGHGRQO\WRÀQGDFRQQHFWLRQEHWZHHQ
that crime and Dr. Stanton as well as an agreement to
MRLQWKHFRQVSLUDF\$PSOHHYLGHQFHVXSSRUWHGWKHMXU\·V
ÀQGLQJRQWKLVVFRUHSee United States v. Sadler, 24 F.4th
515, 542 (6th Cir. 2022).
Dr. Stanton insists that the government may not
ERRWVWUDSKLVUHJXODWRU\YLRODWLRQVDV*DWHZD\·VPHGLFDO
director into criminal liability. But the government did not
FKDUJH'U6WDQWRQZLWKFRQVSLUDF\WRYLRODWH7HQQHVVHH·V
clinical guidance. It charged him with conspiring to
violate federal drug laws. Because the government may
use circumstantial evidence to support that charge, it was
fair game to introduce evidence that Dr. Stanton failed
WR IROORZ 7HQQHVVHH·V UHJXODWRU\ UHTXLUHPHQWV DV WKLV
evidence supported the theory that he knowingly joined
an illegal scheme. See United States v. Bauer, 82 F.4th
522, 529 (6th Cir. 2023) (inferring knowledge of illegal
prescriptions from evidence that provider practices
violated clinic policies and exceeded state and federal
dosage guidance); cf. United States v. Brown, 553 F.3d 768,
791 (5th Cir. 2008) (acknowledging “the irreproachable,
commonplace use of duly issued regulations in clarifying
the scope and contour of criminal laws” against drug
conspiracy). The government, moreover, informed Dr.
Stanton that it would reference these Tennessee rules
10a
Appendix A
prior to trial, and he never objected to this evidence
when prompted by the court. Nor did Dr. Stanton object
DW WULDO ZKHQ D 7HQQHVVHH RIÀFLDO WHVWLÀHG DERXW WKHVH
rules, or when the government introduced copies of the
UHJXODWLRQVVHL]HGIURP*DWHZD\6XIÀFLHQWHYLGHQFHDOO
in all, supported the conviction.
Expert testimony. Dr. Stanton separately challenges
WKHGLVWULFWFRXUW·VGHFLVLRQWRSHUPLW'U.LQJWRWHVWLI\
as an expert witness on rebuttal. Abuse-of-discretion
UHYLHZDSSOLHVWRDWULDOFRXUW·V´FRQWURO>RYHU@WKHVFRSH
of rebuttal testimony.” Geders v. United States, 425 U.S.
80, 86, 96 S. Ct. 1330, 47 L. Ed. 2d 592 (1976).
A party may offer rebuttal testimony to counter
evidence offered by the defense. And that is true even
when the party, the government in this instance, could
have anticipated the defense and offered the same evidence
as part of its case in chief. Toth v. Grand Trunk R.R., 306
F.3d 335, 345 (6th Cir. 2002); Martin v. Weaver, 666 F.2d
1013, 1020 (6th Cir. 1981).
The court did not abuse its discretion in handling Dr.
.LQJ·V UHEXWWDO WHVWLPRQ\ $IWHU 'U 6WDQWRQ WHVWLÀHG
that he had used his best medical judgment in working
at Gateway, the government called Dr. King to evaluate
that testimony. Dr. King explained that it fell “outside
the standard of care” to schedule as many patients in as
short of a time as Dr. Stanton did, to continue to prescribe
narcotics to patients who failed drug screens, and to
11a
Appendix A
WUHDWDQRWKHUGRFWRU·VSDWLHQWVZLWKRXW´DQLQGHSHQGHQW
medical evaluation.” R.309 at 288-91. In each instance,
WKLV WHVWLPRQ\ UHEXWWHG 'U 6WDQWRQ·V WHVWLPRQ\ DERXW
the relevant medical standards, and in each instance it
impeached his credibility on these fronts. See United
States v. Hofstetter, 31 F.4th 396, 428 (6th Cir. 2022),
vacated on other grounds by 143 S. Ct. 351, 214 L. Ed.
G $OWKRXJK 'U 6WDQWRQ·V HYLGHQFH ZDV QRW
“new” in the sense that the government understood
'U 6WDQWRQ OLNHO\ ZRXOG UDLVH WKLV GHIHQVH 'U .LQJ·V
WHVWLPRQ\TXDOLÀHVDVIDLUJDPHUHEXWWDOHYLGHQFHEHFDXVH
it challenged defenses that entered the trial through Dr.
6WDQWRQ·VWHVWLPRQ\See Benedict v. United States, 822
F.2d 1426, 1428-30 (6th Cir. 1987).
'U6WDQWRQUHSOLHVWKDW'U.LQJ·VUHEXWWDOWHVWLPRQ\
unfairly surprised him after the government withdrew its
original expert. But Dr. King did not come out of nowhere.
7KH JRYHUQPHQW LGHQWLÀHG KLP DV D SRWHQWLDO H[SHUW
witness when the original expert could not testify. Nor
did Dr. Stanton request a continuance in the face of this
late disclosure. The government, at any rate, did not have
an obligation to anticipate how Dr. Stanton would defend
himself when it crafted its own case in chief. Hofstetter,
31 F.4th at 428. In response to that testimony, Judge Weir
FDUHIXOO\FDELQHG'U.LQJ·VWHVWLPRQ\WRHQVXUHWKDWLW
UHVSRQGHGRQO\WR'U6WDQWRQ·VRZQWHVWLPRQ\1RDEXVH
of discretion occurred.
12a
Appendix A
Jury instruction. Dr. Stanton challenges the district
FRXUW·VGHOLEHUDWHLJQRUDQFHLQVWUXFWLRQ:HUHYLHZWKH
instruction for an abuse of discretion and will reverse only
if the instructions as a whole prove confusing, misleading,
or prejudicial. United States v. Frei, 995 F.3d 561, 565
(6th Cir. 2021).
A deliberate-ignorance instruction prevents a
defendant from avoiding the consequences of his actions
by closing his eyes to the obvious. United States v.
Mitchell, 681 F.3d 867, 876 (6th Cir. 2012); United States
v. Geisen, 612 F.3d 471, 485-86 (6th Cir. 2010). In pill-mill
conspiracies, the instruction prevents clinic owners and
providers from claiming a lack of knowledge of illegal
RSHUDWLRQVGHVSLWHDZDUHQHVVRIVHULDOUHGÁDJVSee, e.g.,
United States v. Ashrafkhan)$SS·[ WK
Cir. 2020); United States v. Gowder)$SS·[
(6th Cir. 2020); United States v. Leman)$SS·[
705-06 (6th Cir. 2014). To prevent juries from confusing the
high standard of willful blindness with mere “negligence,
carelessness[,] or ignorance,” trial courts should provide
this instruction only when the record could support this
inference and the defendant claims a lack of knowledge.
Mitchell, 681 F.3d at 876.
7KH FRXUW·V LQVWUXFWLRQ ÀWV WKDW VWDQGDUG 7KH MXU\
heard copious evidence suggesting that Dr. Stanton
NQHZ DERXW *DWHZD\·V XQXVXDO SDWLHQW SRSXODWLRQ 'U
0DFFDURQH·V ODFN RI FRQFHUQ DERXW GUXJ WHVWLQJ DQG
other telltale signs of a pill mill. To all of this, Dr. Stanton
claimed a lack of knowledge about any criminal conduct
13a
Appendix A
DW *DWHZD\ 7KH MXU\ FRXOG SHUPLVVLEO\ ÀQG IURP WKDW
evidence that Dr. Stanton deliberately avoided learning
RI*DWHZD\·VLOOLFLWSUDFWLFHVCf. Leman)$SS·[DW
706 (observing that evidence of a “large percentage of
patients . . . [who] drove for hours in large groups” and
received “very high dosages of narcotics” supported giving
deliberate ignorance instruction).
Dr. Stanton replies that the instruction fails to follow
Ruan, which held that the government must prove that a
doctor knowingly acted outside the authorized practice of
medicine to violate 21 U.S.C. § 841(a). 597 U.S. at 459-60.
But Ruan does not prevent the government from proving
knowledge “through circumstantial evidence.” Id. at 467.
$GHOLEHUDWHLJQRUDQFHLQVWUXFWLRQVDWLVÀHVRuan when,
as here, it reminds the jury that this standard sits well
above carelessness, negligence, and mistake. Anderson, 67
F.4th at 766; see also United States v. Hofstetter, 80 F.4th
725, 731 (6th Cir. 2023). Nor did the court impermissibly
allow the jury to use deliberate ignorance to infer Dr.
6WDQWRQ·VLQWHQWWRMRLQWKHFRQVSLUDF\See United States
v. Matthews, 31 F.4th 436, 450 (6th Cir. 2022). It instead
LQVWUXFWHG WKH MXU\ WKDW LW FRXOG LQIHU 'U 6WDQWRQ·V
NQRZOHGJHRIWKHFRQVSLUDF\·VDLPVEDVHGRQZKDWKHGLG
how he acted, the natural results of his conduct, and other
circumstantial evidence.
Jury questions. Dr. Stanton argues that the trial
FRXUWHUUHGLQLWVUHVSRQVHWRWKHMXU\·VTXHVWLRQVGXULQJ
deliberations. But the government, Dr. Stanton, and the
14a
Appendix A
court all agreed to do what the court did: refer the jury
WRWKHLQVWUXFWLRQVDVDOUHDG\JLYHQ'U6WDQWRQ·VFRXQVHO
informed the court that the supplemental instructions
DSSHDUHG´ÀQHµWRKLP5DW7KDWDJUHHPHQWWR
the form of the instruction waives our review of this issue.
See United States v. Daneshvar, 925 F.3d 766, 786-87 (6th
Cir. 2019).
Even if we reviewed the supplemental instruction
for plain error, as Dr. Stanton requests, no such mistake
occurred in referring the jury to legally correct statements
of the law. See United States v. Combs, 33 F.3d 667, 670
(6th Cir. 1994). The existing conspiracy instruction,
which followed the contours of the Sixth Circuit Pattern
Jury Instructions, fully covered the legal questions the
jury raised. See United States v. Hines, 398 F.3d 713,
WK &LU DIÀUPLQJ MXU\ LQVWUXFWLRQV WKDW
“essentially tracked the language and organization of
the Sixth Circuit Pattern Jury Instruction regarding
conspiracy”). Dr. Stanton replies that the jury expressed
confusion about the elements of conspiracy, but the
VXSSOHPHQWDOLQVWUXFWLRQFODULÀHGWKDWWKHMXU\PXVWÀQG
´ERWKµSUHYLRXVO\OLVWHGHOHPHQWVVDWLVÀHG5 DW
Sentencing. Dr. Stanton argues that the government
failed to prove the converted drug weight used to sentence
him by a preponderance of the evidence. The sentencing
guideline for a criminal drug conspiracy instructs the
trial court to calculate a base offense level based on the
“converted drug weight” of the illegal prescriptions. See
15a
Appendix A
U.S.S.G. § 2D1.1(a)(5), (c). The calculation may include
illegal prescriptions that the defendant personally
wrote as well as those attributable to his role in “jointly
undertaken criminal activity,” id. § 1B1.3(a)(1)(B),
including the prescriptions Dr. Maccarone wrote as a
UHDVRQDEO\IRUHVHHDEOHUHVXOWRI'U6WDQWRQ·VSDUWLFLSDWLRQ
in the conspiracy, see United States v. Sadler, 750 F.3d
585, 594 (6th Cir. 2014). The court should “show its work”
to explain why a preponderance of the evidence supports
that reasonable and conservative estimate of the amount
of drugs involved. United States v. Woodside, 895 F.3d
894, 900-02 (6th Cir. 2018).
7KHWULDOFRXUWGLGMXVWWKDWLQÀQGLQJWKDW'U6WDQWRQ
illegally prescribed narcotics to these 21 patients. It
recognized that the government had introduced evidence
RIQXPHURXVLUUHJXODULWLHVLQWKHSDWLHQWÀOHVLQFOXGLQJ
failed drug tests and pill counts, brief patient visits,
and standardized dosages. Evidence at trial, including
'U 0DFFDURQH·V WHVWLPRQ\ H[SODLQHG WKDW WKHVH DQG
RWKHUDFWLYLWLHVYLRODWHG*DWHZD\·VRZQZULWWHQSROLFLHV
7HQQHVVHH·V VWDWH UHJXODWLRQV DQG VWDQGDUG PHGLFDO
practices.
In the alternative, the court reasoned that the
LGHQWLÀHG SUHVFULSWLRQV FRQVHUYDWLYHO\ DQG UHDVRQDEO\
accounted for the total number of prescriptions that Dr.
Stanton enabled at Gateway. The court explained that
*DWHZD\·V ´ZKROH RSHUDWLRQ LV KLJKO\ WDLQWHGµ DQG WKDW
the 21 patients surely undercounted the total amount
16a
Appendix A
of illicit prescriptions at Gateway. R.358 at 216. It
recognized that Dr. Maccarone could not have operated
*DWHZD\ ´ZLWKRXW 'U 6WDQWRQ·V EOHVVLQJµ DV PHGLFDO
GLUHFWRUDQGLWDWWULEXWHG'U0DFFDURQH·VSUHVFULSWLRQV
to Dr. Stanton. Id. at 221. The court properly reasoned
that these 21 patients represented only about 4% of the
FOLQLF·VFOLHQWHOHRILWVORQJGLVWDQFHWUDYHOHUVDQGDQ
unknown number of sponsored patients. The evidence at
trial further showed that Dr. Stanton personally wrote
DERXW RI *DWHZD\·V SUHVFULSWLRQV LQ WKH WZR \HDUV
IROORZLQJ'U0DFFDURQH·VPHGLFDODEVHQFH2QHZD\RU
another, no abuse of discretion occurred. Cf. Woodside,
895 F.3d at 901-03.
Dr. Stanton objects that the government did not
introduce expert testimony that the prescriptions for
these 21 patients were improper and thus could not
prove that he knew that he wrote these prescriptions
outside the authorized practice of medicine. Although
expert testimony would have been useful, the trial record
presents a far cry from the situation that Dr. Stanton
posits, in which the government fails to introduce any
HYLGHQFHH[SHUWRURWKHUZLVHWRVKRZWKDWDSK\VLFLDQ·V
careful treatment of patients violated accepted medical
standards. On this record, the district court could readily
ÀQGWKDW'U6WDQWRQNQRZLQJO\WXUQHGDEOLQGH\HWRWKH
PDQ\UHGÁDJVVXUURXQGLQJKLVDQG'U0DFFDURQH·VGUXJ
prescription habits and should be sentenced accordingly.
:HDIÀUP
17a
Appendix A
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
No. 23-5394
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOHN L. STANTON, M.D.,
Defendant-Appellant.
Before: SUTTON, Chief Judge; CLAY and BUSH,
Circuit Judges.
JUDGMENT
On Appeal from the United States District Court
for the Eastern District of Kentucky at London.
THIS CAUSE was heard on the record from the
district court and was argued by counsel.
IN CONSIDERATION THEREOF, it is ORDERED
that the judgment of the district court is AFFIRMED.
ENTERED BY ORDER OF THE COURT
/s/
Kelly L. Stephens, Clerk
18a
Appendix B OF THE UNITED
APPENDIX B — JUDGMENT
STATES DISTRICT COURT FOR THE EASTERN
DISTRICT OF KENTUCKY, SOUTHERN DIVISION
AT LONDON, FILED APRIL 18, 2023
UNITED STATES DISTRICT COURT
Eastern District of Kentucky –
Southern Division at London
Case Number:
6:2 l-CR-019-S-REW-04
USM Number:
57572-509
UNITED STATES OF AMERICA
v.
JOHN L. STANTON
JUDGMENT IN A CRIMINAL CASE
THE DEFENDANT:
pleaded guilty to count(s) ________
pleaded nolo contendere to count(s) ________ which
was accepted by the court.
7 was found guilty on count(s) 1 of the Superseding
Indictment [DE #74] after a plea of not guilty.
19a
Appendix B
The defendant is adjudicated guilty of these offenses:
Title &
Offense
Section Nature of Offense
Ended
Count
March 2021
1
21:846 Conspiracy to
Distribute Controlled
Substances, to include
Oxycodone,
Oxymorphone, and
Methadone, Schedule II
Controlled Substances,
and certain
Benzodiazepines,
Including Alprazolam,
Schedule IV Controlled
Substances
The defendant is sentenced as provided in pages 2
through 7 of this judgment. The sentence is imposed
pursuant to the Sentencing Reform Act of 1984.
The defendant has been found not guilty on count(s)
________
Count(s) ________
is
motion of the United States.
are
dismissed on the
It is ordered that the defendant must notify the
United States attorney for this district within 30 days
of any change of name, residence, or mailing address
XQWLODOOÀQHVUHVWLWXWLRQFRVWVDQGVSHFLDODVVHVVPHQWV
20a
Appendix B
imposed by this judgment are fully paid. If ordered to
pay restitution, the defendant must notify the court and
United States attorney of material changes in economic
circumstances.
April 17, 2023
Date of Imposition of Judgment
/s/ RW
Signature of Judge
Honorable Robert E. Wier, U.S. District Judge
Name and Title of Judge
4.18.2023
Date
21a
Appendix B
DEFENDANT: John L. Stanton
CASE NUMBER: 6:21-CR-019-S-REW-04
IMPRISONMENT
The defendant is hereby committed to the custody of
the Bureau of Prisons to be imprisoned for a total term of:
ONE HUNDRED TWENTY (120) MONTHS
The Court intends for defendant to receive credit
toward his federal sentence for all time he spent in
custody related to this case, if consistent with § 3585.
7 The court makes the following recommendations
to the Bureau of Prisons:
That defendant receive a full medical assessment
DQGVFUHHQLQJWKDWVSHFLÀFDOO\DGGUHVVHVKLVQHHG
for a knee replacement surgery, and that he be
given access to any and all necessary treatment.
That defendant be designated to the camp at
McCreary or at Manchester, Kentucky. If the
defendant docs not qualify for either facility, it is
recommended that he be designated to the facility
otherwise closest to his home in Clarksville,
Tennessee.
7 The defendant is remanded to the custody of the
United States Marshal.
22a
Appendix B
The defendant shall surrender to the United
States Marshal for this district:
at ____
a.m.
p.m. on ________
DVQRWLÀHGE\WKH8QLWHG6WDWHV0DUVKDO
The defendant shall surrender for service of
sentence at the institution designated by the
Bureau of Prisons:
before 2 p.m. on ________.
DVQRWLÀHGE\WKH8QLWHG6WDWHV0DUVKDO
DVQRWLÀHGE\WKH3UREDWLRQRU3UHWULDO
6HUYLFHV2IÀFH
RETURN
I have executed this judgment as follows:
Defendant delivered on ________ to ________ at
BBBBBBBZLWKDFHUWLÀHGFRS\RIWKLVMXGJPHQW
UNITED STATES MARSHAL
By
DEPUTY UNITED STATES MARSHAL
23a
Appendix B
SUPERVISED RELEASE
Upon release from imprisonment, you will be on supervised
release for a term of:
THREE (3) YEARS
STATUTORILY MANDATED CONDITIONS
1.
You must not commit another federal, state or
local crime.
2.
You must not unlawfully possess or use a
controlled substance.
3.
You must submit to a drug test w ithin 15
days of supervision commencement. USPO
shall subsequently test Defendant at least
tw ice thereafter and may test Defendant
as frequently as monthly/weekly/biweekly
during the supervision term. USPO may seek
Court permission for more frequent testing, if
warranted. USPO may re-test if any test sample
is invalid.
7 The above dr ug testing condition
is suspended, based on the court’s
determination that you pose a low risk
of future substance abuse. (Check, if
applicable.
24a
Appendix B
4.
You must make restitution in accordance with
18 U.S.C. §§ 3663 and 3663A or any other
statute authorizing a sentence of restitution.
(Check, if applicable.)
5.
7 You must cooperate in the collection of DNA
DVGLUHFWHGE\WKHSUREDWLRQRIÀFHU(Check,
if applicable.)
6.
You must comply with the requirements of the
6H[2IIHQGHU5HJLVWUDWLRQDQG1RWLÀFDWLRQ
Act (34 U.S.C. § 20901, et seq.) as directed by
WKHSUREDWLRQRIÀFHUWKH%XUHDXRI3ULVRQV
or any state sex offender registration agency
in the location where you reside, work, are
a student, or were convicted of a qualifying
offense. (Check, if applicable.)
7.
You must participate in an approved program
for domestic violence. (Check, if applicable.)
You must comply with the standard conditions that
have been adopted by this court as well as with any
other conditions on the attached pages. The Court has
considered § 3583(d)(1)-(3) in formulating all additional
conditions.
25a
Appendix B
STANDARD CONDITIONS OF SUPERVISION
As part of your supervised release, you must comply with
the following standard conditions of supervision. These
conditions are imposed because they establish the basic
expectations for your behavior while on supervision and
LGHQWLI\WKHPLQLPXPWRROVQHHGHGE\SUREDWLRQRIÀFHUVWR
keep informed, report to the court about, and bring about
improvements in your conduct and condition.
<RXPXVWUHSRUWWRWKHSUREDWLRQRIÀFHLQWKHIHGHUDO
judicial district where you are authorized to reside
within 72 hours of your release from imprisonment
XQOHVVWKHSUREDWLRQRIÀFHULQVWUXFWV\RXWRUHSRUWWR
DGLIIHUHQWSUREDWLRQRIÀFHRUZLWKLQDGLIIHUHQWWLPH
frame.
2.
After initially reporting to the probation office,
you will receive instructions from the court or the
SUREDWLRQRIÀFHUDERXWKRZDQGZKHQ\RXPXVWUHSRUW
WRWKHSUREDWLRQRIÀFHUDQG\RXPXVWUHSRUWWRWKH
SUREDWLRQRIÀFHUDVLQVWUXFWHG
3.
You must not knowingly leave the federal judicial
district where you are authorized to reside without
first getting permission from the court or the
SUREDWLRQRIÀFHU
4.
You must answer truthfully the questions asked by
\RXUSUREDWLRQRIÀFHU
5.
You must live at a place approved by the probation
officer. If you plan to change where you live or
26a
Appendix B
anything about your living arrangements (such as the
people you live with), you must notify the probation
RIÀFHUDWOHDVWGD\VEHIRUHWKHFKDQJH,IQRWLI\LQJ
WKH SUREDWLRQ RIÀFHU LQ DGYDQFH LV QRW SRVVLEOH GXH
to unanticipated circumstances, you must notify the
SUREDWLRQRIÀFHUZLWKLQKRXUVRIEHFRPLQJDZDUH
of a change or expected change.
<RXPXVWDOORZWKHSUREDWLRQRIÀFHUWRYLVLW\RXDWDQ\
time at your home or elsewhere, and you must permit
WKH SUREDWLRQ RIÀFHU WR WDNH DQ\ LWHPV SURKLELWHG
by the conditions of your supervision that he or she
observes in plain view.
7.
You must not communicate or interact with someone
you know is engaged in criminal activity. If you know
someone has been convicted of a felony, you must not
knowingly communicate or interact with that person
ZLWKRXWÀUVWJHWWLQJWKHSHUPLVVLRQRIWKHSUREDWLRQ
RIÀFHU
8.
If you are arrested or questioned by a law enforcement
RIÀFHU\RXPXVWQRWLI\WKHSUREDWLRQRIÀFHUZLWKLQ
72 hours.
<RXPXVWQRWRZQSRVVHVVRUKDYHDFFHVVWRDÀUHDUP
ammunition, destructive device, or dangerous weapon
LHDQ\WKLQJWKDWZDVGHVLJQHGRUZDVPRGLÀHGIRU
WKHVSHFLÀFSXUSRVHRIFDXVLQJERGLO\LQMXU\RUGHDWK
to another person such as nunchakus or tasers).
10. You must not act or make any agreement with a
law enforcement agency to act as a confidential
27a
Appendix B
KXPDQVRXUFHRULQIRUPDQWZLWKRXWÀUVWJHWWLQJWKH
permission of the court.
,I WKH SUREDWLRQ RIÀFHU GHWHUPLQHV WKDW \RX SRVH D
risk to another person (including an organization),
WKH SUREDWLRQ RIÀFHU PD\ UHTXLUH \RX WR QRWLI\ WKH
person about the risk and you must comply with that
LQVWUXFWLRQ 7KH SUREDWLRQ RIÀFHU PD\ FRQWDFW WKH
SHUVRQDQGFRQÀUPWKDW\RXKDYHQRWLÀHGWKHSHUVRQ
about the risk.
<RXPXVWIROORZWKHLQVWUXFWLRQVRIWKHSUREDWLRQRIÀFHU
related to the conditions of supervision.
863UREDWLRQ2IÀFH8VH2QO\
A U.S. probation officer has instructed me on the
FRQGLWLRQV VSHFLÀHG E\ WKH FRXUW DQG KDV SURYLGHG PH
with a written copy of this judgment containing these
conditions. For further information regarding these
conditions, see Overview of Probation and Supervised
Release Conditions, available at: www.uscourts.gov.
Defendant’s Signature ____________________
Date _________
28a
Appendix B
SPECIAL CONDITIONS OF SUPERVISION
1.
Should the defendant seek a DEA registration license
WRSUHVFULEHFRQWUROOHGVXEVWDQFHVKHVKDOOÀUVWJLYH
QRWLFHWRWKHSUREDWLRQRIÀFH
2.
Should the defendant intend to work in any capacity
in a medical setting that prescribes controlled
VXEVWDQFHVKHVKDOOÀUVWQRWLI\WKHSUREDWLRQRIÀFH
29a
Appendix B
CRIMINAL MONETARY PENALTIES
The defendant must pay the total criminal monetary
penalties under the schedule of payments on Sheet 6.
Assess- Restiment
tution
Fine
AVAA
Assessment*
TOTALS $ 100.00 $ Com- $ 100,000.00 $ N/A
munity
Waived
JVTA
Assessment**
$ N/A
The determination of restitution is deferred until
after such determination. An Amended Judgment in
a Criminal Case (A0245C) will be entered after such
detetmination.
The defendant must make restitution (including
community restitution) to the following payees in the
amount listed below.
If the defendant makes a partial payment, each
payee shall receive an approximately proportioned
SD\PHQW XQOHVV VSHFLÀHG RWKHUZLVH LQ WKH SULRULW\
order or percentage payment column below. However,
pursuant to 18 U.S.C. § 3664(i), all nonfederal victims
must be paid before the United States is paid.
* Amy, Vicky, and Andy Child Pornography Victim Assistance
Act of 2018, Pub. L. No. 115-299.
-XVWLFHIRU9LFWLPVRI7UDIÀFNLQJ$FWRI3XE/1R
114-22.
30a
Appendix B
Name of
Payee
Total Loss***
TOTALS $ __________
Restitution
Ordered
Priority or
Percentage
$ __________
Restitution amount ordered pursuant to plea agreement
$ __________
The defendant must pay interest on restitution and a
ÀQHRIPRUHWKDQXQOHVVWKHUHVWLWXWLRQRUÀQH
LVSDLGLQIXOOEHIRUHWKHÀIWHHQWKGD\DIWHUWKHGDWH
of the judgment, pursuant to 18 U.S.C. § 3612(f). All
of the payment options on Sheet 6 may be subject to
penalties for delinquency and default, pursuant to 18
U.S.C. § 3612(g).
The court determined that the defendant does not
have the ability to pay interest and it is ordered that:
the interest requirement is waived for the
restitution.
the interest requirement for the
LVPRGLÀHGDVIROORZV
ÀQH
ÀQH restitution
*** Findings for the total amount of losses are required under
Chapters 109A, 110, 110A, and 113A of Title 18 for offenses committed
on or after September 13, 1994, but before April 23, 1996.
31a
Appendix B
SCHEDULE OF PAYMENTS
Having assessed the defendant’s ability to pay,
payment of the total criminal monetary penalties is due
as follows:
A7
Lump sum payment of $100,100.00 due immediately,
balance due
not later than _________, or
7 in accordance with
below; or
C,
D,
E, or 7 F
B
Payment to begin immediately (may be combined
with C, D, or F below); or
C
Payment in equal ______ (e.g. weekly, monthly,
quarterly) installments of $ _______ over a period
of _______ (e.g., months or years), to commence
_____ (e.g., 30 or 60 days) after the date of this
judgment; or
D
Payment in equal ______ (e.g. weekly, monthly,
quarterly) installments of $ ______ over a period
of (e.g. months or years), to commence _____ (e.g.,
30 or 60 days) after release from imprisonment to
a term of supervision; or
E
Payment during the term of supervised release
will commence within _____ (e.g., 30 or 60 days)
after release from imprisonment. The court will
set the payment plan based on an assessment of
the defendant’s ability to pay at that time; or
32a
Appendix B
F7
Special instructions regarding the payment of
criminal monetary penalties:
Criminal monetary penalties are payable to:
Clerk, U. S. District Court, Eastern District
of Kentucky
310 S. Main Street, Room 215,
London, KY 40741
INCLUDE CASE NUMBER WITH ALL
CORRESPONDENCE
Unless the court has expressly ordered otherwise,
if this judgment imposes imprisonment, payment of
criminal monetary penalties is due during the period of
imprisonment. All criminal monetary penalties, except
those payments made through the Federal Bureau of
Prisons’ Inmate Financial Responsibility Program, are
made to the clerk of the court.
The defendant shall receive credit for all payments
previously made toward any criminal monetary penalties
imposed.
Joint and Several
Case Number
Defendant and Co-Defendant Names
(including
Joint and
defendant
Total
Several
number)
Amount Amount
Corresponding
Payee, if
appropriate
33a
Appendix B
The defendant shall pay the cost of prosecution.
The defendant shall pay the following court cost(s):
7 The defendant shall forfeit the defendant’s interest in
the following property to the United States:
The defendant’s Tennessee medical license [DE #253]
DQGDPRQH\MXGJPHQWRILVQRZÀQDO
[DE #273].
Payments shall be applied in the following order: ( 1)
assessment, (2) restitution principal, (3) restitution
LQWHUHVW $9$$DVVHVVPHQW ÀQHSULQFLSDO ÀQH
interest, (7) community restitution, (8) JVT A assessment,
(9) penalties, and ( 10) costs, including cost of prosecution
and court costs.
34a
AppendixOF
C REHEARING OF
APPENDIX C — DENIAL
THE UNITED STATES COURT OF APPEALS FOR
THE SIXTH CIRCUIT, FILED AUGUST 8, 2024
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
No. 23-5394
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOHN L. STANTON, M.D.,
Defendant-Appellant.
ORDER
BEFORE: SUTTON, Chief Judge; CLAY and BUSH,
Circuit Judges.
The court received a petition for rehearing en banc.
The original panel has reviewed the petition for rehearing
and concludes that the issues raised in the petition were
fully considered upon the original submission and decision
of the case. The petition then was circulated to the full
court. No judge has requested a vote on the suggestion
for rehearing en banc.
Therefore, the petition is denied.
35a
Appendix C
ENTERED BY ORDER OF THE COURT
/s/ Kelly L. Stephens, Clerk
Kelly L. Stephens, Clerk
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.