Reply Brief — Randy Lamartiniere, Petitioner v. United States

No. 24-5578

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In The

Supreme Court of the United States



RANDY LAMARTINIERE,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.



On Petition For Writ Of Certiorari To The

United States Court Of Appeals

For The Fifth Circuit



REPLY IN SUPPORT OF PETITION FOR WRIT OF CERTIORARI



BEAU B. BRINDLEY

Counsel of Record

LAW OFFICES OF BEAU B. BRINDLEY

53 W. Jackson Blvd. Ste. 1410

Chicago, IL 60604

(312) 765-8878

bbbrindley@gmail.com

Counsel for Petitioner

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TABLE OF CONTENTS

I. The Government Offers No Sound Reason For Interpreting Ruan Differently

From Liparota. .................................................................................................................. 1

II. The Government Fails To Sufficiently Assess The Scope Of The Attorney

General’s Regulatory Authority Under The CSA. ......................................................... 3

III. The Government Misreads Moore As Endorsing The Regulation As Defining

Authority Under § 841... ................................................................................................... 4

Iv. The Government Fails To Address The Vagueness Concerns Of The Regulation.

. ........................................................................................................................................... 7

Conclusion ........................................................................................................................ 12

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TABLE OF AUTHORITIES

Cases

Dubin v. United States, 599 U.S. 110 (2023) .................................................................. 9

Dunn v. Smith, No. 22-2082, 2023 WL 2770960 (10th Cir. Apr. 4, 2023) ................... 3

Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000) ... 4

Liparota v. United States, 471 U.S. 419 (1985) .......................................................... 2, 3

Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244 (2024) ................................ 1, 4

Marinello v. United States, 138 S. Ct. 1101 (2018) ........................................................ 9

McDonnell v. United States, 579 U.S. 550 (2016) .......................................................... 9

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

United States v. Davis, 588 U.S. 445 (2019) ................................................................... 8

United States v. Eaton, 144 U.S. 677 (1892)................................................................... 6

United States v. Grimaud, 220 U.S. 506 (1911) ............................................................. 7

United States v. Kahn, 58 F.4th 1308 (10th Cir. 2023) ............................................. 2, 3

United States v. Moore, 423 U.S. 124 (1975) .......................................................... 5, 8, 9

Statutes

21 U.S.C. § 802 .................................................................................................................. 7

21 U.S.C. § 829 .................................................................................................................. 7

21 U.S.C. § 841 .......................................................................................................... 1, 5, 6

Regulations

21 C.F.R. § 1306.04(a)....................................................................................................... 6

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“In the business of statutory interpretation, if it is not the best, it is not

permissible.” Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244, 2266 (2024).

The courts below and the government interpret the Controlled Substances Act as

equating a physician practicing medicine with a drug trafficker. This is not the best

reading of the statute, and it is therefore not permissible.

The government does not dispute Dr. Lamartiniere’s recitation of the facts in

this case. See generally Opp. Br.; see also Sup. Ct. R. 15. And while the government

downplays the importance of the facts in this case, see Opp. Br. at 3, the facts

illuminate the error in the of the government’s construction of the statute. Based on

the undisputed facts of this case, there is no question that Dr. Lamartiniere was

practicing medicine. Pet. at 13-17. But erroneous understandings of the Controlled

Substances Act (“CSA”) and this Court’s opinion in Ruan v. United States, 597 U.S.

450 (2022) allowed for his conviction under the statute’s drug trafficking provision.

This Court’s review is necessary to clarify the criminal law applicable to registered

practitioners under the CSA.

I.

THE GOVERNMENT OFFERS NO SOUND REASON FOR

INTERPRETING RUAN DIFFERENTLY FROM LIPAROTA.

This Court opinion in Ruan was clear: “We now hold that § 841’s ‘knowingly or

intentionally’ mens rea applies to the ‘except as authorized’ clause.” Ruan v. United

States, 597 U.S. 450, 457 (2022) (quoting 21 U.S.C. § 841(a)). The Court did not hold

that § 841’s mens rea applies to the “and the vague, highly general language of the

regulation,” see id. at 464, purporting to define an “effective prescription,” 21 C.F.R.

§ 1306.04.

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The government ignores Ruan’s reliance on Liparota v. United States, 471 U.S.

419, 434 (1985), which interpreted a similarly worded statute as requiring the

government to prove that a defendant “knew that his conduct was unauthorized or

illegal.” Id. at 434. The Tenth Circuit, however, correctly explained the commonality

between the cases. In Kahn II, the Tenth Circuit described the essential holding in

Liparota as follows:

While the defendant in Liparota knew that he was purchasing food

stamps below the market rate, such knowledge was not enough to

establish guilt. The Supreme Court held that knowingly engaging in

conduct that is, in fact, unauthorized is not sufficient, even if one is

aware of all the factors that render it unauthorized. Instead, the

government was required to prove that the defendant actually knew

that his conduct was unauthorized under the law.

United States v. Kahn, 58 F.4th 1308, 1315 n.3 (10th Cir. 2023) (“Kahn II”) (citations

omitted). The Tenth Circuit’s correctly interpreted Ruan as treat[ing] the two criteria

in § 1306.04(a) not as distinct bases to support a conviction, but as ‘reference to

objective criteria’ that may serve as circumstantial evidence of a defendant's

subjective intent to act in an unauthorized manner.” Id. at 1316 (quoting Ruan, 597

U.S. at 467).

Putting the cases together, the Tenth Circuit concluded that “[j]ust as in

Liparota, to convict under § 841(a) of the CSA, ‘the Government may prove by

reference to facts and circumstances surrounding the case that petitioner knew that

his conduct was unauthorized or illegal.’” Kahn II, at 1315 (quoting Liparota, 471

U.S. at 434) (emphasis added). “However, the government's showing of objective

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criteria, without proving that a defendant actually intended or knew that he or she

was acting in an unauthorized way, is not enough to convict.” Id.

The government ignores the rationale of Kahn II to argue that there is not a

circuit split. But this is inconsistent with the Tenth Circuit’s subsequent description

of the opinion as “explaining that a knowing failure to act outside professional norms

was not equivalent to a knowing failure to act without authorization.” Dunn v. Smith,

No. 22-2082, 2023 WL 2770960, at *5 (10th Cir. Apr. 4, 2023) (unpublished). The

regulation describes professional norms.

A knowing failure to abide by the

professional norms described in the regulation is not the same as a knowingly

prescribing without authorization. The government offer’s no reason to treat Ruan

differently than Liparota.

II.

THE GOVERNMENT FAILS TO SUFFICIENTLY ASSESS THE

SCOPE OF THE ATTORNEY GENERAL’S REGULATORY

AUTHORITY UNDER THE CSA.

The governments interpretation of § 841’s “except as authorized” clause rests

on a fundamentally flawed reading of the CSA. Critically, the government’s reading

requires acceptance of the premise that an administrative agency may alter the

penalty structure of a statute via regulatory fiat. But the government assumes that

the Attorney General’s authority is broad enough to issue a regulation limiting the

scope of a registered practitioner’s prescribing authority beyond the scope of the

statute itself.

The government ignores that the CSA does “not call on the Attorney General,

or any other executive official, to make an independent assessment of the meaning of

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federal law.” Gonzales v. Oregon, 546 U.S. 243, 263 (2006). Nor does it “suggest that

he may decide what the law says.” Id. at 264. Any interpretation of the CSA vesting

the Attorney general with such power “would go, moreover, against the plain

language of the text to treat a delegation for the ‘execution’ of his functions as a

further delegation to define other functions well beyond the statute's specific grants

of authority.” Id. at 264–65. To the extent that one might find ambiguity in the scope

of the Attorney General’s authority under the CSA, “[t]he very point of the traditional

tools of statutory construction—the tools courts use every day—is to resolve statutory

ambiguities.” Loper Bright, 144 S. Ct. at 2266. “That is no less true when the

ambiguity is about the scope of an agency's own power—perhaps the occasion on

which abdication in favor of the agency is least appropriate.” Id.

That the language contained in the regulations comes from various provisions

of the CSA does not help the government’s argument, as “[i]t is a ‘fundamental canon

of statutory construction that the words of a statute must be read in their context and

with a view to their place in the overall statutory scheme.’” Food & Drug Admin. v.

Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (quoting Davis v.

Michigan Dept. of Treasury, 489 U.S. 803, 809 (1989)). Under the government’s

reading, however, congressional placement of words in a statue is of no import.

Rather, an administrative agency can pick and choose language from various parts

of a statute until it obtains its preferred meaning.

III.

THE GOVERNMENT MISREADS MOORE AS ENDORSING THE

REGULATION AS DEFINING AUTHORITY UNDER § 841.

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United States v. Moore, 423 U.S. 124 (1975) did not hold that 21 C.F.R. §

1306.04 defines the scope of a registered practitioner’s authorization for purposes of

21 U.S.C. § 841. Indeed, Moore only cited to the regulation in two footnotes when

discussing whether the defendant in that case could be prosecute under § 842(a)(1).

See Moore, 423 U.S. at 138 n.12, n.13. Moore’s discussion of § 829, however, is entirely

consistent with Petitioner’s reading of the statute:

On its face s 829 addresses only the form that a prescription must take.

A written prescription is required for Schedule II substances. s 829(a).

Either a written or an oral prescription is adequate for drugs in

Schedules III and IV. s 829(b). The only limitation on the distribution or

dispensing of Schedule V drugs is that it be “for a medical purpose.” s

829(c). The medical purpose requirement explicit in subsection (c) could

be implicit in subsections (a) and (b). Regulation s 306.04 makes it

explicit. But s 829 by its terms does not limit the authority of a

practitioner.

Id. at 138 n.13 (emphasis added). Moore relied on the statutory language itself,

rather than the regulation, to hold “that registrant who may be prosecuted for the

relatively minor offense of violating s 829 is [not] exempted from prosecution under s

841 for the significantly greater offense of acting as a drug ‘pusher.’” Id. at 138. But

Moore equated a violation of the regulation with a violation of § 829, and thus being

punishable under § 842(a)(1).

That rationale is consistent with common sense reading of the statute and the

regulations. The regulations in Part 1306 do not purport to implement § 841 or any

of the provisions dealing with authorization. To the contrary, the scope of Part 1306

is explicitly limited to the “[r]ules governing the issuance, filling and filing of

prescriptions pursuant to section 309 of the Act (21 U.S.C. 829) . . . .” 21 C.F.R. §

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1306.01. Thus, even if the regulations were issued within the Attorney General’s

authority under the CSA, violation of the regulations in that part would not be a

violation of § 841; they would be a violation of § 829. And Congress specifically

provided for violations of § 829 in § 842(a)(1).

Moreover, the plain language of the regulation itself does not logically read as

describing authority for purposes of § 841(a). The specific language of the regulation

that addresses the applicability of penalties under the CSA does not mention

authorization or § 841. It provides:

“An order purporting to be a prescription issued not in the usual course

of professional treatment . . . is not a prescription within the meaning

and intent of section 309 of the Act (21 U.S.C. 829) and the person

knowingly filling such a purported prescription, as well as the person

issuing it, shall be subject to the penalties provided for violations of the

provisions of law relating to controlled substances.”

21 C.F.R. § 1306.04(a) (emphasis added). The most logical reading of the text of the

regulation is that issuing a prescription in violation of its terms is a violation of § 829,

not § 841.

Further evidence that a knowing violation of CFR § 1306.04 does not constitute

a violation of § 841 is that the statute does not expressly criminalize violation of the

regulation.

Section 841(a) refers to the statute itself—and not regulations—in

describing to authorization.

21 U.S.C. § 841(a) (“Except as authorized by this

subchapter . . . .”). And this Court has made clear that a criminal conviction for

violating a regulation is permissible only if a statute explicitly provides that violation

of that regulation is a crime. See United States v. Eaton, 144 U.S. 677, 688 (1892).

Accordingly, for Congress to delegate the power to an agency to enact regulations and

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subject those who violate the regulations to criminal liability, courts require Congress

to speak “distinctly.” United States v. Grimaud, 220 U.S. 506, 519 (1911). Congress

has not so spoken here.

To the contrary, the text and structure of the CSA indicates that one need not

even be in strict compliance with the statutory requirements to stay within the scope

of his authority for purposes of § 841, let alone compliance with regulatory

requirements for filling a prescription. See, e.g., 21 U.S.C. § 842(a)(1) (criminalizing

the distribution or dispensation in violation of § 829). Nowhere does the statute

indicate that the failure to comply with the regulations implementing § 829 can

subject one to criminal penalties under § 841. As the authorization contemplated by

§ 841 clearly encompasses activities that are not in compliance with § 829, the statute

does not clearly make violation of § 829’s implementing regulations a violation of §

841, and § 1306.04 does not purport to define authorization for purposes of § 841,

there is no textually sound reason to read the regulation as sub silentio redefining

authorization.

IV.

THE GOVERNMENT FAILS TO ADDRESS THE VAGUENESS

CONCERNS OF THE REGULATION.

The key difference between the statute and the regulation is that the statute

utilizes clear language: “in the course of professional practice,” 21 U.S.C. § 802(21),

and “medical purpose,” 21 U.S.C. § 829(c). The regulation, however, narrows these

grants of authority through the undefined modifiers “usual” and “legitimate”. 21

C.F.R. § 1306.04. The requirement of a legitimate medical purpose implies that there

are illegitimate medical purposes.

Similarly, the usual course of professional

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proactive implies that there is some rang of activity that is within the course of

professional practice but unusual enough to warrant prosecution. The government,

however, has never been able to delineate what an illegitimate medical purpose is or

how one can, while still practicing the profession of medicine, have a practice that is

so unusual that it is criminally liable under § 841.

This Court has long recognized that “[o]nly the people's elected representatives

in the legislature are authorized to ‘make an act a crime,’” United States v. Davis, 588

U.S. 445, 451 (2019) (quoting United States v. Hudson, 7 Cranch 32, 34 (1812)), and

that “[v]ague statutes threaten to hand responsibility for defining crimes to relatively

unaccountable police, prosecutors, and judges, eroding the people's ability to oversee

the creation of the laws they are expected to abide.” Id.

But here, it is not the statute that is vague.

“[T]o act ‘in the course of

professional practice’ is to engage in the practice of medicine—or, as we have put it,

to ‘act ‘as a physician.’” Ruan, 597 U.S. at 479 (Alito, J., concurring) (quoting Moore,

423 U.S. at 141). “For a practitioner to ‘practice medicine,’ he or she must act for a

medical purpose—which means aiming to prevent, cure, or alleviate the symptoms of

a disease or injury—and must believe that the treatment is a medically legitimate

means of treating the relevant disease or injury.” Id.

Here, it is the regulation that injects the vagueness and uncertainty into the

meaning of § 841. The regulation grafts undefined objective legitimacy and usualness

requirements onto an otherwise clear statute, thus seizing the “the legislature's

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responsibility for defining criminal behavior” and handing it off “to unelected

prosecutors and judges . . . .” Davis, 588 U.S. at 448.

The government tells doctors to fear not, as it will yield its prosecutorial

discretion reasonably and responsibly. See Ruan v. United States, No. 20-1410, Oral

Arg. Tr. at 71 (JUSTICE GORSUCH: “[I]n those close cases --and I understand the

government will never bring a close case. I understand that. MR. FEIGIN: Never.”)

This Court has recently reiterated its longstanding framework for addressing such

prosecutorial assurances:

Finally, the Government makes a familiar plea: There is no reason to

mistrust its sweeping reading, because prosecutors will act responsibly.

To this, the Court gives a just-as-familiar response: We “cannot construe

a criminal statute on the assumption that the Government will ‘use it

responsibly.’” “To rely upon prosecutorial discretion to narrow the

otherwise wide-ranging scope of a criminal statute’s highly abstract

general statutory language places great power in the hands of the

prosecutor.”

Dubin v. United States, 599 U.S. 110, 143 S. Ct. 1557, 1573 (2023) (quoting McDonnell

v. United States, 579 U.S. 550, 576 (2016) then Marinello v. United States, 138 S. Ct.

1101, 1108 (2018)) (brackets omitted).

This case offers a clear example of why to distrust prosecutorial discretion

when construing criminal statutes.

The government has not disputed that Dr.

Lamartiniere was trying to help his patients with what he believed to be bona fide

medical problems. The undisputed facts show that Dr. Lamartiniere was acting

“act[ing] ‘as a physician.’” See Moore, 423 U.S. at 141. But due to an erroneous

interpretation of the CSA which defined the offense in terms of the vague regulation

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rather than the statutory text itself, the jury was permitted to convict Dr.

Lamartiniere for failing to adhere to best practices. The CSA requires more, and this

Court’s review is necessary to clarify the standard for lower Courts.

CONCLUSION

For the foregoing reasons, Petitioner respectfully prays that the Court will grant his

Petition for Certiorari.

Respectfully Submitted,

January 2, 2025

DATE

s/Beau B. Brindley

Beau B. Brindley

COUNSEL OF RECORD

For Petitioner

Law Offices of Beau B. Brindley

53 W Jackson Blvd. Ste 1410

Chicago IL 60604

(312)765-8878

bbbrindley@gmail.com

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