Reply Brief — John L. Stanton, Petitioner v. United States

No. 24-525

In the

Supreme Court of the United States

JOHN L. STANTON,

Petitioner,

v.

UNITED STATES,

Respondent.

On Petition for a Writ of Certiorari to the United

States Court of A ppeals for the Sixth Circuit

REPLY BRIEF

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

130829

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . ii

REPLY BRIEF FOR PETITIONER . . . . . . . . . . . . . . . 1

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

ii

TABLE OF CITED AUTHORITIES

Page

Cases

Gonzales v. Oregon,

546 U.S. 243 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 6

Gonzales v. Raich,

545 U.S. 1 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Ladner v. United States,

358 U.S. 169 (1958) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Lubetsky v. United States,

No. 24-137 (Nov. 12, 2024) . . . . . . . . . . . . . . . . . . . . . . 5

Ruan v. United States,

144 S. Ct. 377 (2023) . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

United States v. Bauer,

82 F.4th 522 (6th Cir. 2023) . . . . . . . . . . . . . . . . . . . . . 1

United States v. Ignasiak,

667 F.3d 1217 (11th Cir. 2012) . . . . . . . . . . . . . . . . . . . 1

United States v. Lubetsky,

No. 23-10142, 2024 U.S. App. LEXIS 3367,

2024 WL 577543 (11th Cir. Feb. 13, 2024) . . . . . . . . . 6

United States v. Moore,

423 U.S. 122 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 6

iii

Cited Authorities

Page

United States v. Ruan,

966 F.3d 1101 (11th Cir. 2020) . . . . . . . . . . . . . . . . . . . 5

United States v. Smithers,

92 F.4th 237 (4th Cir. 2024) . . . . . . . . . . . . . . . . . . . . . 1

Yee v. City of Escondido, Cal.,

503 U.S. 519 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Statutes & Other Authorities

21 U.S.C. § 841(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 3, 4, 6

21 U.S.C. § 846 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 3, 4, 6

John J. Mulrooney II and Katherine E. Legel, Current

Navigation Points in Drug Diversion Law:

Hidden Rocks in Shallow, Murky, DrugInfested Waters, 101 Marq. L. Rev. 333 (2017) . . . . . 2

1

REPLY BRIEF FOR PETITIONER

This case brings to the Court yet another example

where a physician was prosecuted and convicted for

deviating from the “usual course of professional practice.”

No determination was made on whether Petitioner seized

practicing medicine altogether such that he was engaged

in drug trafficking. Nor was there expert testimony that

allowed the jury to make that determination. Stanton Br.

21-22. No matter. The court of appeals upheld Petitioner’s

conspiracy conviction, anyway, finding that a simple

departure from prevailing medical standards will suffice

in sentencing a physician to 120 months of imprisonment.

Pet. App. 6a-10a; Id. 16a. That, in the government’s view,

is the way in which 21 U.S.C. §§ 841(a) and 846 should be

enforced. And it is how the government has enforced both

statutes time and again.1

Yet, what’s more, is that the government has erected

its own standard for prescribing controlled substances,

invading on the individual authority of each state to

1. See United States v. Smithers, 92 F.4th 237, 251 (4th Cir.

2024) (For each patient that the government presented evidence,

Smithers spoke about their medical records and complaints,

and almost all of the patients had significant accidents); United

States v. Bauer, 82 F.4th 522, 533 (6th Cir. 2023) (Bauer’s practice

did not resemble a typical “pill mill,” he had a long history as a

prominent physician on the vanguard of pain management, and

he had no financial incentive to overprescribe opioids); United

States v. Ignasiak, 667 F.3d 1217, 1228 (11th Cir. 2012) (Ample

record evidence suggests that Ignasiak’s practice exposed him

to sick patients afflicted by legitimately painful conditions and

the medical records of all twenty patients in the indictment

documented illnesses that caused pain).

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regulate the practice of medicine.2 See Gonzales v. Oregon,

546 U.S. 243, 270 (2006) (“The structure and operation

of the CSA presume and rely upon a functioning medical

profession regulated under the States’ police powers.”).

The result is a regressive, restrictive, and rigid standard

for prescribing controlled substances, not least in part

because the government rosters a limited number of

experts with an identical prescribing philosophy. 3 4 5

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. Dr. King, besides testifying in this case, has also testified

in the following cases: United States v. Anderson, No. 2:19-cr0067-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).

4. Dr. Altman has testified in the following cases: United

States v. James Litton, No. 2:19-cr-20083 (W.D. Tenn. 2021);

United States v. Clinton Battle, No. 4:20-cr-00157-1 (N.D. Tex.

2023); United States v. Mark Murphy, No. 5:20-cr-00291-LSCSGC (N.D. Ala. 2023); United States v. Talbot, No. 2:21-cr-00111

(E.D. La. 2021); Moore v. St. Vincents Hospital, No. CV-19-900950,

Jefferson County Circuit Court, Birmingham Division, 2019.

5. Dr. Rubenstein has testified in the following cases: United

States v. Ronald Lubetsky, No. 1:21-cr-20485 (S.D. Fla. 2023);

United States v. Osmin Morales, No. 1:22-cr-20255 (S.D. Fla.

2024); Osmin A. Morales, M.D., No. 22-36 (DEA, Order to Show

3

In fact, that prescribing philosophy is so ironclad that the

government’s experts comfortably opine on prescribing

in the absence of reviewing medical records, diagnostic

imaging, and prescribing histories. See Lubetsky Petition

for Certiorari (No. 24-137). Rather than engaging with

a patient’s symptoms and complaints and the complex

medical decision-making underpinning a prescription,

the government’s experts reduce prescribing into a

simple and formulaic equation that ignores nuance. Step

1: Were there red flags present? Step 2: Did the physician

continue prescribing following those red flags? If so, then

the physician’s prescribing departs from the “usual course

of professional practice.” The steps a physician may have

taken to follow up on those red flags before continuing to

prescribe is irrelevant. In the government’s view, red flags

require the cessation of prescribing controlled substances

altogether. Anything short of that and prosecution under

Title 21 follows.

Here, for example, the government argued at trial

that red flags were present at Gateway Medical Associates

(“GMA”). Stanton Br. 53-54. Because Petitioner continued

to prescribe controlled substances following those red

flags, the government argued that he violated 21 U.S.C. §§

841(a) and 846. Id.; Pet. App. 6a-10a. That was also what

Dr. King based his opinion on at trial. Stanton Br. 21-22. It

did not matter that Dr. King failed to review any medical

records, diagnostic imaging, or prescribing histories. Nor

did it matter to Dr. King what steps Petitioner took to

address the red flags at GMA. See Id. Equally irrelevant

to Dr. King was that Petitioner had stepped in to ensure

Cause, 2022); United States vs. Lonnie Joseph Parker, No. 4:19cr-40018 (W.D. Ark. 2024).

4

continuity of care following emergency medical leave

from the GMA treating physician. The government’s

regressive and rigid philosophy leaves no room for such

considerations. Instead, physicians like Petitioner are

subjected to the harsh penalties under Section 841(a)

absent inquiry into whether a prescription was issued for

other than a legitimate medical purpose. The government

has thus stretched the boundaries that Congress

intended to surround and limit 21 U.S.C. §§ 841(a) and

846, prosecuting and convicting physicians regardless of

whether they are drug trafficking controlled substances.

See United States v. Moore, 423 U.S. 122, 137 (1975).

The government nonetheless contends (at 1) that the

Court should deny the petition for a writ of certiorari

because it is unclear that the court of appeals considered

any of Petitioner’s current claims in the form presented

before this Court. The record below defeats the

government’s claim. Petitioner clearly argued to the

court of appeals that the government did not carry

its burden at trial because it failed to prove beyond a

reasonable doubt that Petitioner conspired to distribute

controlled substances for other than a legitimate medical

purpose. See Stanton Br. 26. There, Petitioner directed

the court of appeals that it was impossible for the jury to

determine whether prescriptions were issued for other

than a legitimate medical purpose given the absence of

expert testimony. See Id. (emphasizing that Dr. King’s

rebuttal testimony omitted any review of medical records,

diagnostic imaging, and prescribing histories); see also

Pet. App. 5a-10a.

Even if the government were correct, the worst that

can be said is that Petitioner now advances other aspects

5

of an overall argument that plainly was presented to the

court of appeals: Whether the government was required

to prove that he conspired to prescribe for other than a

legitimate medical purpose. See Stanton Br. 24-35. In such

circumstances, this Court has not hesitated to treat the

contention as fully preserved. See Yee v. City of Escondido,

Cal., 503 U.S. 519, 534 (1992) (“Once a federal claim is

properly presented, a party can make any argument in

support of that claim; parties are not limited to the precise

arguments they made below.”).

The government (at 2) also relies on Lubetsky v.

United States, No. 24-137 (Nov. 12, 2024) and Ruan v.

United States, 144 S. Ct. 377 (2023) (No. 22-1175) in

directing the Court to deny the petition for a writ of

certiorari. But, unlike in those cases, there was no medical

expert testimony in this case. Moreover, the one physician

that did testify on rebuttal, Dr. King, conceded that his

testimony was solely based on the general standard of care

and did not include an assessment of whether Petitioner

was drug trafficking—i.e., prescribing for other than a

legitimate medical purpose. Stanton Br. 21-22. Conversely,

in both Lubetsky and Ruan, the respective experts, Dr.

Rubenstein and Dr. Altman, both opined on whether

prescribing was for other than a legitimate medical

purpose. See Lubetsky Petition for Certiorari (No. 24137) at 11; see also United States v. Ruan, 966 F.3d 1101,

1130 (11th Cir. 2020) (finding that Dr. Altman opined

on whether prescribing was for other than a legitimate

medical purpose following her review of patients’ files).

Unlike Lubetsky and Ruan, this case neatly separates the

“usual course of professional practice” from prescribing

for “other than a legitimate medical purpose” and presents

before the Court the disjunctive versus conjunctive

question on a clean record.

6

Moreover, this opinion, unlike United States v.

Lubetsky, No. 23-10142, 2024 U.S. App. LEXIS 3367,

2024 WL 577543 (11th Cir. Feb. 13, 2024), is a published

and precedential decision following this Court’s decision

in Ruan, in which the court of appeals has held that a

physician violates 21 U.S.C. §§ 841(a) and 846 if he or she

deviates from prevailing medical standards. Pet. App.

6a-10a; Id. 16a. Under the court of appeals’ decision, it

is immaterial whether a physician prescribed for other

than a legitimate medical purpose, or, in other words,

was engaged in drug trafficking. See Id. Unless and

until the Court intervenes, the government will persist

in prosecuting and convicting physicians for their simple

departure from prevailing medical standards; following

which courts will drive up physician sentences based on

those same departures. See Id.

Stepping outside the usual course of professional

practice, as described by the federal government’s

limited roster of expert physicians, is not how Congress

intended for 21 U.S.C. §§ 841(a) and 846 to be enforced.

See Gonzales, 546 U.S. at 270. Nor is it how both statutes’

harsh penalties should be imposed under the rule of lenity.

See Ladner v. United States, 358 U.S. 169, 178 (1958).

Sections 841(a) and 846 both were enacted to punish and

deter drug trafficking. See Moore, 423 U.S. at 137; see

also Gonzales v. Raich, 545 U.S. 1, 24-26 (2005) (finding

that the CSA was designed to balance the beneficial use

of medications while preventing their misuse for which

there is an established interstate market of illegitimate

channels). That is the North Star that Petitioner asks the

Court to clarify and make sure the government follows.

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CONCLUSION

Accordingly, the petition for a writ of certiorari should

be granted.

Respectfully submitted,

Matthew J. Pelcowitz

Ronald W. Chapman II

Chapman Law Group

Counsel of Record

701 Waterford Way, Ste. 340 Chapman Law Group

Miami, FL 33126

1441 W. Long Lake Road, Ste. 310

(305) 712-7177

Troy, MI 48098

(248) 644-6326

rwchapman@

chapmanlawgroup.com