Petition for Writ of Certiorari — Lisa Hofschulz, et vir, Petitioners v. United States
Supreme Court briefSep 23, 2024
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No. ___________
IN THE SUPREME COURT OF THE UNITED STATES
________________________
ROBERT HOFSCHULZ,
LISA HOFSCHULZ,
Petitioners,
V.
UNITED STATES OF AMERICA,
Respondent.
________________________
On Petition for Writ of Certiorari to the United
States Court of Appeals for the Seventh Circuit
________________________
APPENDIX TO PETITION FOR WRIT OF CERTIORARI
________________________
Beau B. Brindley
COUNSEL OF RECORD
For Petitioner Randy Lamartiniere
Law Offices of Beau B. Brindley
53 W Jackson Blvd. Ste 1410
Chicago IL 60604
(312)765-8878
bbbrindley@gmail.com
INDEX TO APPENDICES
APPENDIX A – Court of Appeals Opinion Affirming Judgment .............................................. A1
APPENDIX B - District Court Judgment Order, Robert Hofschulz ......................................... A17
APPENDIX C - District Court Judgment Order, Lisa Hofschulz ............................................ A23
APPENDIX D - District Court Order on Jury Instructions ....................................................... A30
APPENDIX E – District Court Order Denying New Trial ........................................................ A80
Case: 21-3404
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In the
United States Court of Appeals
for the Seventh Circuit
____________________
Nos. 21-3403 & 21-3404
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LISA HOFSCHULZ and ROBERT HOFSCHULZ,
Defendants-Appellants.
____________________
Appeals from the United States District Court
for the Eastern District of Wisconsin.
No. 18-cr-145-PP — Pamela Pepper, Chief Judge.
____________________
ARGUED SEPTEMBER 8, 2023 — DECIDED JUNE 25, 2024
____________________
Before SYKES, Chief Judge, and ROVNER and KIRSCH, Circuit
Judges.
SYKES, Chief Judge. A jury convicted Lisa Hofschulz, a
nurse practitioner, of conspiracy and 14 counts of distributing drugs in a manner unauthorized by the Controlled
Substances Act, including one count of unlawful drug
distribution resulting in the death of a patient. See 21 U.S.C.
§ 841(a)(1), (b)(1)(C); id. § 846. The charges arose out of her
operation of a “pain clinic” as a front for a pill mill from
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which she dispensed opioid prescriptions for cash-only
payment. Robert Hofschulz, her then ex-husband, was also
convicted for his role in helping her run the opioid mill. (The
couple have since remarried.)
The Hofschulzes challenge their convictions on three
grounds. First, they argue that the jury instructions were
inconsistent with the Supreme Court’s decision in Ruan v.
United States, 597 U.S. 450 (2022), issued shortly after they
were sentenced. Ruan held that in a § 841 case against a
medical professional for distributing drugs in an unauthorized manner, the statute’s intent requirement applies to the
act of distribution and lack of authorization. Our circuit has
long followed this rule, even before Ruan. In accordance
with our pre-Ruan caselaw, the district judge instructed the
jury that the government must prove beyond a reasonable
doubt that the Hofschulzes intended to distribute controlled
substances and intended to do so in an unauthorized manner. There was no instructional error.
The Hofschulzes also argue that the judge wrongly permitted the government’s medical expert to testify about the
standard of care in the usual course of professional pain
management. Circuit precedent says otherwise. Finally, the
Hofschulzes challenge the sufficiency of the evidence to
support their convictions. This argument is frivolous. We
affirm.
I. Background
In June 2018 Lisa Hofschulz, a licensed nurse practitioner, was charged with one count of conspiracy to distribute
controlled substances in an unauthorized manner, 21 U.S.C.
§§ 841(a)(1), 846; thirteen counts of distributing controlled
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substances in an unauthorized manner, id. § 841(a); and one
count of unlawful distribution of controlled substances
resulting in death, id. § 841(a)(1), (b)(1)(C). The grand jury
also indicted Robert Hofschulz, Lisa’s then ex-husband and
business partner, for conspiracy and aiding and abetting
four of the drug-distribution counts.
After significant delay—some necessitated by the pandemic but most instigated by the defense—the case finally
proceeded to trial in August 2021. The government introduced a mountain of evidence of the defendants’ guilt; a
summary will suffice for present purposes. The evidence
established that in late 2014 the Hofschulzes opened a “pain
management clinic” in Wauwatosa, Wisconsin—a suburban
community just west of Milwaukee—as a front for an opioid
mill. Over the next two years, Lisa prescribed millions of
opioid pills in exchange for cash-only payment. Robert, who
is not a medical professional, helped Lisa set up the clinic
and served as its registered agent and business manager.
For their first year in operation, the Hofschulzes ran the
clinic from a single 8x8-foot room adjacent to a chiropractic
office, leasing space from another couple and sometimes
giving their landlords large-quantity opioid prescriptions in
lieu of rent. The clinic had no exam table or medical equipment. Lisa did not take patients’ vital signs, perform physical examinations, review medical records, or order imaging
or tests to diagnose illness or injury.
The clinic collected a cash-only fee of $200 to $300 per
visit from each patient, even though a majority were on
Medicaid and thus were entitled to free medical care. Nearly
all patients who visited the clinic—99 percent of them—left
with a prescription for an opioid drug (sometimes more than
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one). Few had conditions that justified treatment with
opioids; most patients were suffering from addiction or
untreated mental illness rather than seeking legitimate
medical care for a confirmed injury or illness.
By late 2015 the Hofschulzes had too many “patients”
(and a growing waiting list) for the one-room “clinic,” so
they moved to a somewhat larger temporary location in a
nearby office building. They also began to bring on additional nurse practitioners, hiring only newly minted nurses
who lacked work experience. Most lasted no more than a
few months. Several of these short-term nurses testified at
trial, explaining that they raised concerns with the Hofschulzes that the clinic’s operations did not conform to standard
medical practice. Their efforts to sound the alarm were
rebuffed, and many of the nurses either resigned within a
few months or were fired after expressing concerns about
Lisa’s prescribing practices and the clinic’s lack of standard
medical care.
One patient fatally overdosed on opioids Lisa had prescribed for him. Frank Eberl came to the clinic repeatedly for
more than a year, leaving each time with opioid prescriptions in amounts appropriate for end-of-life cancer patients
(he was not a cancer patient). Eberl overdosed and died four
days after receiving a high-dose opioid prescription from
Lisa.
For the two-year period from 2015 through 2016, Lisa
wrote prescriptions for more than 2 million opioid pills,
collecting over $2 million in cash from patients, many of
whom were repeat customers and obviously addicted.
Indeed, during this period Lisa Hofschulz was the leading
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prescriber of oxycodone and methadone among all Medicaid
prescribers in Wisconsin.
In July 2016 Lisa was called away from Wisconsin to tend
to a family matter, so she prewrote and presigned numerous
opioid prescriptions and directed two newly hired nurses—
just out of nursing school—to dispense them to patients
while she was gone. They refused, objecting that they had
not yet completed their licensing and that dispensing prewritten prescriptions was unsafe and illegal. Robert fired
one of the nurses for her refusal to comply with Lisa’s
instructions, replacing her with a registered nurse from a
temporary agency who was willing to distribute the prewritten prescriptions. The temp-agency nurse distributed more
than 550 presigned opioid prescriptions while Lisa was
away.
The government also presented opinion testimony from
Dr. Timothy King, a medical expert who explained the
standard of care for legitimate medical practice in pain
management. Finally, the government called several of the
clinic’s patients as witnesses; they confirmed the facts we’ve
just described about the clinic’s operations. There was more
to the government’s case, but further elaboration is unnecessary.
As we’ve noted, the Hofschulzes were charged with violating the Controlled Substances Act, which makes it a crime
to “knowingly or intentionally … manufacture, distribute, or
dispense … a controlled substance” “[e]xcept as authorized”
by the Act. § 841(a). As relevant here, registered medical
professionals may prescribe controlled substances to their
patients, but a prescription is “authorized” and thus excepted under the Act only when a registered medical profession-
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al issues it “for a legitimate medical purpose … acting in the
usual course of his professional practice.” 21 C.F.R.
§ 1306.04(a).
Accordingly, the judge instructed the jury on the drugdistribution counts as follows:
For you to find a defendant guilty of distributing and dispensing a controlled substance,
the government must prove the following elements beyond a reasonable doubt as to the defendant and the charge that you are
considering:
First, that that defendant knowingly caused to
be distributed or dispensed the controlled substance alleged in the charge you are considering;
Second, that that defendant did so by intentionally distributing or dispensing the controlled substance outside the usual course of professional
medical practice, and not for legitimate medical
purpose; and
Third, that that defendant knew that the substance was some kind of a controlled substance. (Emphasis added.)
The judge gave an additional instruction for the charge of
unlawful distribution resulting in death: “In order to establish that the oxycodone and morphine distributed by Lisa
Hofschulz resulted in the death of Frank Eberl[,] the government must prove that Frank Eberl died as a result of his
use of the oxycodone and morphine that Lisa Hofschulz
distributed … .” This instruction also included an explana-
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tion of the but-for causation standard adopted in Burrage v.
United States, 571 U.S. 204 (2014).
The jury found both defendants guilty on all counts. Lisa
moved for judgment of acquittal or alternatively, for a new
trial. She argued primarily that the evidence was insufficient
to prove that she had issued prescriptions without a legitimate medical purpose. The judge denied the motion, ruling
that the evidence we’ve just recounted was easily sufficient
for a reasonable jury to find that Lisa had prescribed controlled substances outside the usual course of medical
practice and not for legitimate medical purposes. As the
judge put it: “[A] reasonable jury could look at these facts
and conclude beyond a reasonable doubt that Lisa Hofschulz was issuing prescriptions for other than a legitimate
purpose—that she was issuing all of these prescriptions
under these circumstances for purposes of making money,
and a lot of it.”
Lisa also argued that Dr. King, the government’s expert,
provided impermissible legal conclusions in his testimony.
The judge rejected this contention, noting that Dr. King had
“offered nothing more than his expert opinion on the standard of care for medical professionals.”
Robert likewise moved for judgment of acquittal, challenging the sufficiency of the evidence to prove his guilt on
the charges against him. The judge denied his motion too,
noting that although Robert was not a medical professional,
the government had introduced ample evidence for the jury
to find beyond a reasonable doubt that he intentionally
conspired with Lisa to unlawfully distribute controlled
substances and aided and abetted the commission of the
four substantive distribution crimes. Among other data-
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points from the trial, the judge emphasized Robert’s obvious
awareness that the clinic lacked any accoutrements of legitimate medical practice and the testimony from several
nurses that they had raised concerns with him about Lisa’s
unauthorized prescribing practices and the clinic’s lack of
legitimate medical care.
With the posttrial motions resolved, the judge turned to
sentencing. The “death resulting” count against Lisa carried
a 20-year minimum prison term; the judge imposed the
minimum 20-year term on that count and concurrent sentences of varying lesser lengths on the conspiracy and
remaining drug-distribution convictions. Robert was sentenced to concurrent terms of 36 months in prison on each of
his five convictions.
II. Discussion
On appeal the Hofschulzes raise several claims of
instructional and evidentiary error. They also challenge the
sufficiency of the evidence to support their convictions.
A. Jury Instructions
The defendants’ primary argument is that the jury instructions did not comply with the Supreme Court’s decision
in Ruan, which as we’ve noted was issued after they were
sentenced. We review the accuracy of the jury instructions
de novo. United States v. Bonin, 932 F.3d 523, 537–38 (7th Cir.
2019). The trial judge has substantial discretion to formulate
the language of the instructions as long as the instructions as
a whole “represent a complete and correct statement of the
law.” Id. at 538 (quotation marks omitted). If the instructions
correctly stated the law, then we review the judge’s phrasing
of them for abuse of discretion. Id.
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Section 841(a) makes it unlawful to “knowingly or intentionally … manufacture, distribute, or dispense … a controlled substance” “[e]xcept as authorized” by the
Controlled Substances Act. In Ruan the Supreme Court held
that “§ 841’s ‘knowingly or intentionally’ mens rea applies to
the ‘except as authorized’ clause.” 597 U.S. at 457. Accordingly, to convict a medical professional for violating § 841(a),
the government must “prove beyond a reasonable doubt
that the defendant knowingly or intentionally acted in an
unauthorized manner.” Id.
Ruan involved two consolidated cases from the Tenth
and Eleventh Circuits raising the same question about the
statute’s state-of-mind requirement as applied in cases
against registered medical prescribers. As noted above, the
Controlled Substances Act authorizes certain licensed and
registered medical professionals to prescribe controlled
substances to patients. See 21 U.S.C. §§ 822(a)(2), 829(a). The
prescribed drug must have “a currently accepted medical
use,” id. § 812(b), and the prescription must be “for a medical
purpose,” id. § 829(c). The Act defines a “valid prescription”
as one “issued for a legitimate medical purpose by an individual practitioner,” id. § 830(b)(3)(A)(ii); the term “practitioner” includes physicians and other licensed medical
professionals who are permitted by their licensing authorities to dispense controlled substances “in the course of
professional practice,” id. § 802(21).
A regulation pulls these statutory requirements together:
A prescription for a controlled substance is “authorized”
under the Act when it is “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).
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See also Gonzales v. Oregon, 546 U.S. 243, 257 (2006) (explaining that this regulation “restate[s] the terms of the statute
itself”). We therefore assume, as Ruan did, “that a prescription is ‘authorized’ and therefore lawful if it satisfies [the
§ 1306.04(a)] standard.” 597 U.S. at 455.
Here the district judge carefully crafted the relevant jury
instruction to apply the statutory state-of-mind standard to
the § 1306.04(a) requirements, as had been the practice in our
circuit even prior to Ruan. See, e.g., United States v. Kohli, 847
F.3d 483, 489–90 (7th Cir. 2017); United States v. Chube II, 538
F.3d 693, 697–98 (7th Cir. 2008). The instruction explained
that the government had the burden to prove beyond a
reasonable doubt that the defendants “knowingly caused [a
controlled substance] to be distributed or dispensed” and
that they “did so by intentionally distributing or dispensing
the controlled substance outside the usual course of professional medical practice, and not for legitimate medical
purpose.” (Emphases added.) This is an accurate statement
of the law and fully compliant with Ruan.
The Hofschulzes resist this conclusion, arguing that the
judge was required to instruct the jury that a prescriber’s
good-faith belief in the legitimacy of his actions negates
intent. Ruan does not suggest—much less mandate—that
judges give such an instruction. The jury instruction here
clearly explained that the government needed to prove
beyond a reasonable doubt that the defendants intentionally
distributed drugs outside the usual course of medical practice and not for a legitimate medical purpose. Ruan requires
nothing more. Indeed, the judge went further than necessary
by using the word “intentionally” alone—rather than the
statutory phrase “knowingly or intentionally”—with respect
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to the authorization requirement. In that sense, the instruction was subtly more favorable to the defense than it needed
to be.
Taking a different tack, the Hofschulzes also suggest that
Ruan adopted a criminal willfulness standard, which if true
would require the government to prove that the prescriber
knew that his conduct was illegal. But nothing in Ruan even
hints at a criminal willfulness standard. The Court reasoned
by analogy to several cases in which it had interpreted other
criminal statutes to contain, at least implicitly, a “knowledge
of status” or “knowledge of nonauthorization” mens rea. Id.
at 461, 467. The Court did not mention a “knowledge-oflaw” requirement (i.e., knowledge that conduct was illegal).
The difference between the two standards “is so important
… that the Supreme Court would not have adopted the
broader [knowledge-of-law] reading without saying so with
unmistakable clarity.” United States v. Maez, 960 F.3d 949,
954–55 (7th Cir. 2020).
Our conclusion that the judge’s instructions complied
with Ruan aligns with a decision from the Third Circuit
involving a similar challenge to materially identical preRuan jury instructions. See United States v. Titus, 78 F.4th 595,
602 (3d Cir. 2023) (affirming a doctor’s conviction in a case
involving jury instructions that required the jury to find that
he “knowingly or intentionally distributed controlled substances outside ‘the usual course of professional practice and
not for a legitimate medical purpose’”). The Hofschulzes
draw our attention to decisions from the Tenth and Eleventh
Circuits on remand from the Supreme Court in Ruan. See
United States v. Kahn, 58 F.4th 1308 (10th Cir. 2023); United
States v. Ruan, 56 F.4th 1291 (11th Cir. 2023). But the pre-Ruan
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jury instructions in those cases lacked the intent requirement
that was clearly included in the jury instructions here.
The Hofschulzes raise two additional claims of instructional error. First, they argue that the jury instruction on the
“death-resulting” count erroneously imposed strict liability.
Second, they claim that the judge was wrong to reject their
pretrial request for an instruction explaining the difference
between the civil-malpractice liability standard and the
standard for criminal liability under § 841.
The first argument was not preserved, so we review only
for plain error. United States v. McClellan, 794 F.3d 743, 753–54
(7th Cir. 2015). Before we will consider exercising our discretion to correct a forfeited error, we must first find “(1) [an]
error (2) that is plain, and (3) that affects the defendant’s
substantial rights.” Id. at 754 (quotation marks omitted). An
error is “plain” only if it is clear or obvious under current
law. United States v. Olano, 507 U.S. 725, 734 (1993).
There was no error here, let alone a plain error. The instruction on the death-resulting distribution count did not
impose strict liability. We’ve already explained that the jury
instructions on the § 841 counts properly applied the “knowingly or intentionally” requirement to the act of distribution
and lack of authorization, as Ruan requires. The steeper
penalties in § 841(b) apply “if death or serious bodily injury
results from” the use of drugs involved in the underlying
§ 841(a) violation.
The judge’s “death resulting” jury instruction correctly
explained the law for this more serious variant of the offense, including the correct causation standard. The instruction also properly explained that this more serious version of
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the offense “is committed regardless of whether th[e] defendant knew or should have known that death would
result.” That’s an accurate statement of the law for the
enhanced penalties in § 841(b). The death-resulting instruction thus imposed strict liability only insofar as the underlying drug-distribution instructions imposed strict liability; in
other words, not at all.
The second argument was only partially preserved. The
Hofschulzes made a pretrial request for a jury instruction on
the difference between the civil-malpractice and criminal
liability standards. The judge denied it but left the door open
for them to renew the request at the end of trial if the evidence so warranted. They did not do so.
Setting that misstep aside, the claim of error is meritless.
The Hofschulzes argue that the judge was required to instruct the jury on the difference between the criminal and
civil liability standards because Dr. King testified that the
two standards are identical. He did no such thing: as explained in more detail below, he did not offer an opinion
about liability standards, criminal or civil; rather, he explained the standard of care in the usual course of professional medical practice in this context. Accordingly, the
instruction was at best unnecessary and at worst potentially
confusing. The judge was well within her discretion to reject
it.
B. Expert Testimony
The Hofschulzes next argue that Dr. King, the government’s medical expert, should not have been permitted to
offer opinion testimony about whether Lisa’s conduct was
outside the usual course of professional practice and not for
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a legitimate medical purpose. This argument rests on a
misunderstanding of the rules for admission of expert
testimony.
Rule 704 of the Rules of Evidence expressly provides that
“[a]n opinion is not objectionable just because it embraces an
ultimate issue.” FED. R. EVID. 704(a). There is a qualifier: “In a
criminal case, an expert witness must not state an opinion
about whether the defendant did or did not have a mental
state or condition that constitutes an element of the crime
charged or of a defense.” Id. R. 704(b).
In United States v. Kohli we explained how Rule 704 applies in this specific context. 847 F.3d 483 (7th Cir. 2017).
Kohli involved a medical expert who, like Dr. King, provided
opinion testimony that the defendant’s prescribing practices
“were inconsistent with the usual course of professional
practice and lacked a legitimate medical purpose.” Id. at 491.
We explained that this testimony “falls squarely within the
parameters of Rule 704.” Id. We noted first that Rule 704(a)
explicitly permits experts to testify “about ultimate or dispositive issues in the case.” Id. And the expert in Kohli did
not violate the qualifier in Rule 704(b): he did not offer an
opinion about the defendant’s subjective mental state but
instead gave his opinion about the defendant’s prescribing
practices “in light of his own experience and training.” Id.
The same is true here. Dr. King’s testimony stayed well
within the bounds of Rule 704.
In a slightly different twist on the same argument, the
Hofschulzes insist that the judge wrongly permitted Dr.
King to testify about the medical standard of care in relation
to the “usual course of professional practice” and “legitimate
medical purposes.” Kohli forecloses this variant of the argu-
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ment too. We explained there that expert testimony on the
medical standard of care is not tantamount to an impermissible expert opinion on the governing legal standard “just
because the two standards overlap.” Id. at 492. “If that were
the case, physicians could virtually never offer meaningful
expert opinions in prosecutions under § 841(a).” Id.
In their final challenge to the government’s expert, the
Hofschulzes argue that Dr. King’s testimony was at odds
with the standard for guilt under § 841 and was wrong as a
matter of law, effectively usurping the judge’s prerogative to
instruct the jury on the law. This argument is way off the
mark. Like the expert in Kohli, Dr. King did not testify about
the legal standard but instead gave expert testimony about
the “applicable standard of care among medical professionals.” Id. Though the medical standard of care is “no doubt
closely linked to § 841(a)’s prohibition on prescribing outside
the ‘usual course of professional medical practice,’” id., Dr.
King’s testimony did not invade the judge’s province as the
sole explainer of the law.
C. Sufficiency of the Evidence
Finally, the Hofschulzes argue that the evidence was insufficient to establish their guilt. Great deference is owed to
the jury’s verdict. United States v. Beechler, 68 F.4th 358, 368
(7th Cir. 2023). “We view the evidence in the light most
favorable to the government and will overturn a conviction
only if the record contains no evidence from which a reasonable juror could have found the defendant guilty.” United
States v. Longstreet, 567 F.3d 911, 918 (7th Cir. 2009). This
highly demanding standard is rightly characterized as
imposing “a nearly insurmountable burden.” Beechler, 68
F.4th at 368 (quotation marks omitted).
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The Hofschulzes have not come remotely close to satisfying this demanding standard. They continue to insist, as
they did in their posttrial motions, that the government
failed to prove that they knew their opioid prescriptions
were “unauthorized.” This argument is frivolous. As our
summary of the trial record shows, the government presented plentiful evidence of their intent to prescribe opioids
outside the usual course of professional practice and not for
legitimate medical purposes. The Hofschulzes point to
evidence on the other side of the ledger—mostly their own
testimony claiming that they were operating a legitimate
pain clinic. But the jury was entitled to reject their testimony
and had ample basis to do so. In any event, we cannot
“supplant the jury’s credibility findings on appeal.” Kohli,
847 F.3d at 490. Abundant evidence supports the guilty
verdicts.
AFFIRMED
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AO 245B (Rev. 09/11) Judgment in a Criminal Case
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
UNITED STATES OF AMERICA
v.
JUDGMENT IN A CRIMINAL CASE
Case Number: 2018-cr-145-PP
USM Number: 16721-089
Robert Hofschulz
Jonathan Smith
Julie Stewart and Laura
Kwaterski
Defendant’s Attorney
Assistant United States Attorneys
THE DEFENDANT was found guilty of Counts One, Eight, Nine, Eleven and Twelve of the superseding
indictment. The court adjudicates him guilty of these offense(s):
Title & Section
21 U.S.C. §§841(a)(1), 841(b)(1)(C)
21 U.S.C. §846
21 U.S.C. §§841(a)(1), 841(b)(1)(C)
21 U.S.C. §846
21 U.S.C. §§841(a)(1), 841(b)(1)(C)
21 U.S.C. §846
21 U.S.C. §§841(a)(1), 841(b)(1)(C)
21 U.S.C. §846
21 U.S.C. §§841(a)(1), 841(b)(1)(C)
21 U.S.C. §846
Nature of Offense
Conspiracy to distribute controlled substances
Distribution of controlled substances outside of
a professional medical practice and not for a
legitimate medical purpose
Distribution of controlled substances outside of
a professional medical practice and not for a
legitimate medical purpose
Distribution of controlled substances outside of
a professional medical practice and not for a
legitimate medical purpose
Distribution of controlled substances outside of
a professional medical practice and not for a
legitimate medical purpose
Date Concluded Count(s)
12/2016
1
7/19/2016
8
7/20/2016
9
7/27/2016
11
7/27/2016
12
The court sentences the defendant as provided in this judgment. The court imposes the sentence under to
the Sentencing Reform Act of 1984.
The court ORDERS that the defendant must notify the United States Attorney for this district within 30
days of any change of name, residence, or mailing address until all fines, restitution, costs, and special assessments
imposed by this judgment are fully paid. If ordered to pay restitution, the defendant must notify the Court and
the United States Attorney of material changes in economic circumstances.
Date Sentence Imposed: December 10, 2021
Hon. Pamela Pepper
Chief Judge, United States District Court
Date Judgment Entered: December 17, 2021
Case 2:18-cr-00145-PP
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AO 245B (Rev. 09/11) Judgment in a Criminal Case
DEFENDANT: Robert Hofschulz
CASE NUMBER: 2018-cr-145-PP
IMPRISONMENT
The defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned
for a term of thirty-six (36) months on Count One; twenty-four (24) months on Count Eight
to run concurrently with the sentence imposed on Count One; twenty-four (24) months
on Count Nine to run concurrently with the sentences imposed on Counts One and
Eight; twenty-four (24) months on Count Eleven to run concurrently with the sentences
imposed on Counts One, Eight, and Nine; and twenty-four (24) months on Count Twelve
to run concurrently with the sentences imposed on Counts One, Eight, Nine, and
Eleven; for a total of thirty-six (36) months of incarceration.
☒
The court makes the following recommendations to the Bureau of Prisons:
Defendant be placed at FCI – Oxford or as close as possible to the Northern
District of Florida.
☐
The defendant is remanded to the custody of the United States Marshal.
☒
The defendant shall surrender for service of sentence at the institution designated by the Bureau of Prisons
as notified by the Probation or Pretrial Services Office by the end of the day on December 17,
2021.
RETURN
I have executed this judgment as follows:
Defendant delivered on _____________________ to _________________________________________
with a certified copy of this judgment.
United States Marshal
By: Deputy United States Marshal
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AO 245B (Rev. 09/11) Judgment in a Criminal Case
DEFENDANT: Robert Hofschulz
CASE NUMBER: 2018-cr-145-PP
SUPERVISED RELEASE
Upon release from imprisonment, the defendant shall be on supervised release for a term of three (3) years on Count
One; three (3) years on Count Eight to run concurrently with the sentence imposed on Count One; three
(3) years on Count Nine to run concurrently with the sentences imposed on Counts One and Eight; three
(3) years on Count Eleven to run concurrently with the sentences imposed on Counts One, Eight and Nine;
and three (3) years on Count Twelve to run concurrently with the sentences imposed for Counts One, Eight,
Nine and Eleven; for a total of three (3) years of supervised release.
The defendant shall report to the probation office in the district to which the defendant is released within 72 hours of release
from the custody of the Bureau of Prisons and shall report to the probation officer in a manner and frequency as reasonably directed by
the Court or probation officer. The defendant shall not commit another federal, state or local crime. The defendant shall not unlawfully
possess a controlled substance and shall refrain from any unlawful use of a controlled substance. The defendant shall submit to one
drug test within 15 days of release from imprisonment and at least two periodic drug tests thereafter, as determined by the court.
☒
The above drug testing condition is suspended based on the court's determination that the defendant poses a low risk of future
substance abuse.
The defendant shall not own, possess, or have under the defendant’s control a firearm, ammunition, explosive device or
dangerous weapon.
The defendant shall cooperate in the collection of DNA as directed by the probation officer.
The defendant shall comply with the requirements of the Sex Offender Registration and Notification Act (42 U.S.C. § 16901,
et seq.) as directed by the probation officer, the Bureau of Prisons, or any state sex offender registration agency in which he or
she resides, works, is a student, or was convicted of a qualifying offense.
The defendant shall participate in an approved program for domestic violence.
☒
☐
☐
☐
If this judgment imposes a fine or a restitution obligation, it is a condition of supervised release that the defendant pay in
accordance with the Schedule of Payments sheet of this judgment.
The defendant must comply with the standard conditions that have been adopted by this court as well as with any additional
conditions on the attached page.
CONDITIONS OF SUPERVISION
1.
2.
3.
4.
5.
6.
The defendant must not commit another federal, state, or local crime;
The defendant must not illegally possess any controlled substance. The defendant
must refrain from any unlawful use of controlled substance. The Court finds there is
a low risk of future substance abuse by the defendant and therefore suspends the drug
testing requirements;
Unless directed otherwise by the probation officer, the defendant must report to the
probation office in the federal judicial district where they defendant resides within 72
hours of release from imprisonment;
After initially reporting to the probation office, the defendant will receive instructions
from the Court or the probation officer about how and when the defendant must report
to the probation officer, and the defendant must report to the probation officer as
instructed;
The defendant must not own, possess, or have under the defendant’s control a firearm,
ammunition, destructive device, or dangerous weapon;
The defendant must not knowingly leave the federal judicial district without first
getting permission from the Court or the probation officer;
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The defendant must follow the instructions of the probation officer designed to make
sure the defendant complies with the conditions of supervision;
8. The defendant must answer truthfully the questions asked by the probation officer
related to the conditions of supervision subject to his Fifth Amendment right against
self-incrimination;
9. The defendant must live at a place approved by the probation officer. If the defendant
plans to change where the defendant lives or anything about the defendant’s living
arrangements (such as the people the defendant lives with), the defendant must tell
the probation officer at least ten calendar days before the change. If telling the
probation officer in advance is not possible due to unanticipated circumstances, the
defendant must tell the probation officer within 72 hours of the change;
10. If the defendant knows someone is committing a crime, or is planning to commit a
crime, the defendant must not knowingly communicate or interact with the person in
any way;
11. The defendant must allow the probation officer to visit the defendant at reasonable
times, at home or other reasonable locations, and the defendant must permit the
probation officer to take any items prohibited by the conditions of supervision that the
probation officer observes in plain view;
12. If the defendant is arrested or questioned by law enforcement officer, the defendant
must tell the probation officer within 72 hours; and
13. The defendant must not make any agreement with a law enforcement agency to as an
informer or a special agent without first getting the permission of the Court.
7.
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AO 245B (Rev. 09/11) Judgment in a Criminal Case
DEFENDANT: Robert Hofschulz
CASE NUMBER: 2018-cr-145-PP
CRIMINAL MONETARY PENALTIES
The defendant must pay the total criminal monetary penalties under the Schedule of Payments on the attached page.
Total Special Assessment
$500.00
Total Fine
None.
Total Restitution
None.
The defendant must make restitution (including community restitution) to the following payees in the amount listed
below.
PAYEE
AMOUNT
TOTAL:
None
If a defendant makes a partial payment, each payee shall receive an approximately proportioned payment. However,
pursuant to 18 U.S.C. § 3664(i), all non-federal victims must be paid before the United States is paid.
☐
☐
☐
☐
The determination of restitution is deferred until _____. An Amended Judgment in a Criminal Case (AO 245C)
will be entered after such determination.
Restitution amount ordered pursuant to plea agreement: $_____.
The defendant must pay interest on any fine or restitution of more than $2,500.00, unless the fine or restitution is
paid in full before the fifteenth day after the date of the judgment, pursuant to 18 U.S.C. § 3612(f). All of the
payment options on the Schedule of Payments 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 ☐ fine ☐ restitution.
**
Findings for the total amount of losses are required under Chapters 109A, 110, 110A, and 113A of Title 18, United
States Code, for offenses committed on or after September 13, 1994 but before April 23, 1996.
Case 2:18-cr-00145-PP
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AO 245B (Rev. 09/11) Judgment in a Criminal Case
DEFENDANT: Robert Hofschulz
CASE NUMBER: 2018-cr-145-PP
Having assessed the defendant's ability to pay, payment of the total criminal monetary
penalties are due as follows:
The defendant’s obligation to pay the $500 special assessment begins immediately.
The court recommends that the defendant participate in the Inmate Financial
Responsibility Program.
The defendant must make all criminal monetary penalty payments, except any
payments made through the Bureau of Prisons’ Inmate Financial Responsibility
Program, to the clerk of court.
The defendant shall receive credit for all payments previously made toward any
criminal monetary penalties imposed.
Payments shall be applied in the following order: (1) special assessment, (2) restitution
principal and (3) costs (if any, including cost of prosecution and court costs).
☐
Joint and Several (Defendant and Co-Defendant Names, Case Numbers (including
defendant number), Total Amount, Joint and Several Amount, and corresponding
payee, if appropriate): _________
☐
The defendant shall pay the cost of prosecution; or ☐ The defendant shall pay the
following court costs:
☒
The defendant shall forfeit the defendant’s interest in the following property to the
United States: $2,265,380, joint and several with co-defendant Lisa Hofschulz,
representing proceeds derived from the defendants’ conspiracy to distribute and
distribution of controlled substances outside of a professional medical practice and not
for a legitimate medical purpose.
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AO 245B (Rev. 09/11) Judgment in a Criminal Case
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
UNITED STATES OF AMERICA
v.
JUDGMENT IN A CRIMINAL CASE
Case Number: 2018-cr-145-PP
USM Number: 16720-089
Lisa Hofschulz
Beau Brindley, Vadim
Glozman and Michael
Thompson
Julie Stewart and Laura
Kwaterski
Defendant’s Attorneys
Assistant United States Attorneys
THE DEFENDANT was found guilty of Counts One through Fifteen of the superseding indictment. The
court adjudicates her guilty of these offenses:
Title & Section
21 U.S.C. §§841(a)(1) and 841(b)(1)(C)
21 U.S.C. §846
21 U.S.C. §§841(a)(1) and 841(b)(1)(C)
21 U.S.C. §846
21 U.S.C. §§841(a)(1) and 841(b)(1)(C)
21 U.S.C. §846
21 U.S.C. §§841(a)(1) and 841(b)(1)(C)
21 U.S.C. §846
21 U.S.C. §§841(a)(1) and 841(b)(1)(C)
21 U.S.C. §846
21 U.S.C. §§841(a)(1) and 841(b)(1)(C)
21 U.S.C. §846
21 U.S.C. §§841(a)(1) and 841(b)(1)(C)
21 U.S.C. §846
21 U.S.C. §§841(a)(1) and 841(b)(1)(C)
21 U.S.C. §846
21 U.S.C. §§841(a)(1) and 841(b)(1)(C)
21 U.S.C. §846
21 U.S.C. §§841(a)(1) and 841(b)(1)(C)
21 U.S.C. §846
21 U.S.C. §§841(a)(1) and 841(b)(1)(C)
21 U.S.C. §846
Nature of Offense
Conspiracy to distribute controlled substances
outside of a professional medical practice and
not for a legitimate medical purpose
Distribution of controlled substances outside of
a professional medical practice and not for a
legitimate purpose
Distribution of controlled substances outside of
a professional medical practice and not for a
legitimate purpose
Distribution of controlled substances outside of
a professional medical practice and not for a
legitimate purpose
Distribution of controlled substances outside of
a professional medical practice and not for a
legitimate purpose
Distribution of controlled substances outside of
a professional medical practice and not for a
legitimate purpose
Distribution of controlled substances outside of
a professional medical practice and not for a
legitimate purpose
Distribution of controlled substances outside of
a professional medical practice and not for a
legitimate purpose
Distribution of controlled substances outside of
a professional medical practice and not for a
legitimate purpose
Distribution of controlled substances outside of
a professional medical practice and not for a
legitimate purpose
Distribution of controlled substances outside of
a professional medical practice and not for a
legitimate purpose
Case 2:18-cr-00145-PP
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Page 1 of 7
Date Concluded Count(s)
12/2016
1
7/29/2015
2
8/3/2015
3
8/12/2015
4
9/3/2015
5
1/25/2016
6
2/16/2016
7
7/19/2016
8
7/20/2016
9
7/20/2016
10
7/27/2016
11
Document 234
Page 2 of 7
21 U.S.C. §§841(a)(1) and 841(b)(1)(C)
21 U.S.C. §846
21 U.S.C. §§841(a)(1) and 841(b)(1)(C)
21 U.S.C. §846
21 U.S.C. §§841(a)(1) and 841(b)(1)(C)
21 U.S.C. §846
21 U.S.C. §§841(a)(1) and 841(b)(1)(C)
18 U.S.C. §2
Distribution of controlled substances outside of
a professional medical practice and not for a
legitimate purpose
Distribution of controlled substances outside of
a professional medical practice and not for a
legitimate purpose
Distribution of controlled substances outside of
a professional medical practice and not for a
legitimate purpose
Distribution of controlled substances outside of
a professional medical practice and not for a
legitimate purpose, resulting in the death of a
patient
7/27/2016
12
8/29/2016
13
11/14/2016
14
11/19/2015
15
The court sentences the defendant as provided in this judgment. The court imposes the sentence under to
the Sentencing Reform Act of 1984.
The court ORDERS that the defendant must notify the United States Attorney for this district within 30
days of any change of name, residence, or mailing address until all fines, restitution, costs, and special assessments
imposed by this judgment are fully paid. If ordered to pay restitution, the defendant must notify the Court and
the United States Attorney of material changes in economic circumstances.
Date Sentence Imposed: December 10, 2021
Hon. Pamela Pepper
Chief Judge, United States District Court
Date Judgment Entered: December 17, 2021
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AO 245B (Rev. 09/11) Judgment in a Criminal Case
DEFENDANT: Lisa Hofschulz
CASE NUMBER: 2018-cr-145-PP
IMPRISONMENT
The defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned
for a term of two-hundred forty (240) months’ imprisonment on Count Fifteen; sixty (60)
months on Count One, to run concurrently with the sentence imposed for Count
Fifteen; forty-eight (48) months on Count Two to run concurrently with the sentence
imposed for Counts Fifteen and One; forty-eight (48) months on Count Three to run
concurrently with the sentence imposed for Counts Fifteen, One and Two; forty-eight
(48) months on Count Four to run concurrently with the sentence imposed for Counts
Fifteen and One through Three; forty-eight (48) months on Count Five to run
concurrently with the sentenced imposed for Counts Fifteen and One through Four;
forty-eight (48) months on Count Six to run concurrently with the sentence imposed
for Counts Fifteen and One through Five; forty-eight (48) months on Count Seven to
run concurrently with the sentence imposed for Counts Fifteen and One through Six;
forty-eight (48) months on Count Eight to run concurrently with the sentence imposed
for Counts Fifteen and One through Seven; forty-eight (48) months on Count Nine to
run concurrently with the sentence imposed for Counts Fifteen and One through Eight;
forty-eight (48) months on Count Ten to run concurrently with the sentence imposed
for Counts Fifteen and One through Nine; forty-eight (48) months on Count Eleven to
run concurrently with the sentence imposed for Counts Fifteen and One through Ten;
forty-eight (48) months on Count Twelve to run concurrently with the sentence
imposed for Counts Fifteen and One through Eleven; forty-eight (48) months on Count
Thirteen to run concurrently with the sentence imposed for Counts Fifteen and One
through Twelve; forty-eight (48) months on Count Fourteen to run concurrently with
the sentence imposed for Counts Fifteen and One through Thirteen; for a total
sentence of two-hundred forty (240) months of incarceration.
☒
The court makes the following recommendations to the Bureau of Prisons:
Defendant be placed at FCI – Danbury (Connecticut), FCI – Coleman (Florida) or
as close as possible to the Northern District of Florida.
☒
The defendant is remanded to the custody of the United States Marshal.
☐
The defendant shall surrender for service of sentence at the institution designated by the Bureau of Prisons
as notified by the Probation or Pretrial Services Office.
RETURN
I have executed this judgment as follows:
Defendant delivered on _____________________ to _________________________________________
with a certified copy of this judgment.
United States Marshal
By: Deputy United States Marshal
Case 2:18-cr-00145-PP
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AO 245B (Rev. 09/11) Judgment in a Criminal Case
DEFENDANT: Lisa Hofschulz
CASE NUMBER: 2018-cr-145-PP
SUPERVISED RELEASE
Upon release from imprisonment, the defendant shall be on supervised release for a term of thirty-six (36) months for Count
One; thirty-six (36) months for Count Two to run concurrently to the sentence imposed for Count One; thirty-six (36) months
for Count Three to run concurrently to the sentence imposed for Counts One and Two; thirty-six (36) months for Count Four
to run concurrently to the sentence imposed for Counts One through Three; thirty-six (36) months for Count Five to run
concurrently to the sentence imposed for Counts One through Four; thirty-six (36) months for Count Six to run concurrently to
the sentence imposed for Counts One through Five; thirty-six (36) months for Count Seven to run concurrently to the sentence
imposed for Counts One through Six; thirty-six (36) months for Count Eight to run concurrently to the sentence imposed for
Counts One through Seven; thirty-six (36) months for Count Nine to run concurrently to the sentence imposed for Counts One
through Eight; thirty-six (36) months for Count Ten to run concurrently to the sentence imposed for Counts One through Nine;
thirty-six (36) months for Count Eleven to run concurrently to the sentence imposed for Counts One through Ten; thirty-six
(36) months for Count Twelve to run concurrently to the sentence imposed for Counts One through Eleven; thirty-six (36)
months for Count Thirteen to run concurrently to the sentence imposed for Counts One through Twelve; thirty-six (36) months
on Count Fourteen to run concurrently to the sentence imposed for Counts One through Thirteen; thirty-six (36) months on
Count Fifteen to run concurrently to the sentence imposed for Counts One through Fourteen, for a total of thirty-six (36) months
of supervised release.
The defendant shall report to the probation office in the district to which the defendant is released within 72 hours of release
from the custody of the Bureau of Prisons and shall report to the probation officer in a manner and frequency as reasonably directed by
the Court or probation officer. The defendant shall not commit another federal, state or local crime. The defendant shall not unlawfully
possess a controlled substance and shall refrain from any unlawful use of a controlled substance. The defendant shall submit to one
drug test within 15 days of release from imprisonment and at least two periodic drug tests thereafter, as determined by the court.
☒
The above drug testing condition is suspended based on the court's determination that the defendant poses a low risk of future
substance abuse.
The defendant shall not own, possess, or have under the defendant’s control a firearm, ammunition, explosive device or
dangerous weapon.
The defendant shall cooperate in the collection of DNA as directed by the probation officer.
The defendant shall comply with the requirements of the Sex Offender Registration and Notification Act (42 U.S.C. § 16901,
et seq.) as directed by the probation officer, the Bureau of Prisons, or any state sex offender registration agency in which he or
she resides, works, is a student, or was convicted of a qualifying offense.
The defendant shall participate in an approved program for domestic violence.
☒
☐
☐
☐
If this judgment imposes a fine or a restitution obligation, it is a condition of supervised release that the defendant pay in
accordance with the Schedule of Payments sheet of this judgment.
The defendant must comply with the standard conditions that have been adopted by this court as well as with any additional
conditions on the attached page.
CONDITIONS OF SUPERVISION
The defendant must not commit another federal, state, or local crime;
The defendant must not illegally possess any controlled substance. The defendant
must refrain from any unlawful use of controlled substance. The Court finds there is
a low risk of future substance abuse by the defendant and therefore suspends the drug
testing requirements;
3. Unless directed otherwise by the probation officer, the defendant must report to the
probation office in the federal judicial district where the defendant resides within 72
hours of release from imprisonment;
4. After initially reporting to the probation office, the defendant will receive instructions
from the Court or the probation officer about how and when the defendant must report
1.
2.
Case 2:18-cr-00145-PP
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Document 234
Page 5 of 7
to the probation officer, and the defendant must report to the probation officer as
instructed;
5. The defendant must not own, possess, or have under the defendant’s control a firearm,
ammunition, destructive device, or dangerous weapon;
6. The defendant must not knowingly leave the federal judicial district without first
getting permission from the Court or the probation officer;
7. The defendant must follow the instructions of the probation officer designed to make
sure the defendant complies with the conditions of supervision;
8. The defendant must answer truthfully the questions asked by the probation officer
related to the conditions of supervision subject to her Fifth Amendment right against
self-incrimination;
9. The defendant must live at a place approved by the probation officer. If the defendant
plans to change where the defendant lives or anything about the defendant’s living
arrangements (such as the people the defendant lives with), the defendant must tell
the probation officer at least ten calendar days before the change. If telling the
probation officer in advance is not possible due to unanticipated circumstances, the
defendant must tell the probation officer within 72 hours of the change;
10. If the defendant knows someone is committing a crime, or is planning to commit a
crime, the defendant must not knowingly communicate or interact with the person in
any way;
11. The defendant must allow the probation officer to visit the defendant at reasonable
times, at home or other reasonable locations, and the defendant must permit the
probation officer to take any items prohibited by the conditions of supervision that the
probation officer observes in plain view;
12. If the defendant is arrested or questioned by law enforcement officer, the defendant
must tell the probation officer within 72 hours; and
13. The defendant must not make any agreement with a law enforcement agency to as an
informer or a special agent without first getting the permission of the Court.
Case 2:18-cr-00145-PP
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AO 245B (Rev. 09/11) Judgment in a Criminal Case
DEFENDANT: Lisa Hofschulz
CASE NUMBER: 2018-cr-145-PP
CRIMINAL MONETARY PENALTIES
The defendant must pay the total criminal monetary penalties under the Schedule of Payments on the attached page.
Total Special Assessment
$1,500.00
Total Fine
None
Total Restitution
$5,665.99
The defendant must make restitution (including community restitution) to the following payees in the amount listed
below.
PAYEE
AMOUNT
Barbara Strehlow
$5,665.99
TOTAL:
$5,665.99
If a defendant makes a partial payment, each payee shall receive an approximately proportioned payment. However,
pursuant to 18 U.S.C. § 3664(i), all non-federal victims must be paid before the United States is paid.
☐
☐
☐
☐
The determination of restitution is deferred until _____. An Amended Judgment in a Criminal Case (AO 245C)
will be entered after such determination.
Restitution amount ordered pursuant to plea agreement: $_____.
The defendant must pay interest on any fine or restitution of more than $2,500.00, unless the fine or restitution is
paid in full before the fifteenth day after the date of the judgment, pursuant to 18 U.S.C. § 3612(f). All of the
payment options on the Schedule of Payments 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 ☐ fine ☐ restitution.
**
Findings for the total amount of losses are required under Chapters 109A, 110, 110A, and 113A of Title 18, United
States Code, for offenses committed on or after September 13, 1994 but before April 23, 1996.
Case 2:18-cr-00145-PP
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AO 245B (Rev. 09/11) Judgment in a Criminal Case
DEFENDANT: Lisa Hofschulz
CASE NUMBER: 2018-cr-145-PP
Having assessed the defendant’s ability to pay, payment of the total criminal monetary
penalties are due as follows:
The defendant’s obligation to pay the $1,500 special assessment and the $5,665.99
restitution begins immediately.
The court recommends that the defendant participate in the Inmate Financial
Responsibility Program.
The defendant must make all criminal monetary penalty payments, except any
payments made through the Bureau of Prisons’ Inmate Financial Responsibility
Program, to the clerk of court.
The defendant shall receive credit for all payments previously made toward any
criminal monetary penalties imposed.
Payments shall be applied in the following order: (1) special assessment, (2) restitution
principal and (3) costs (if any, including cost of prosecution and court costs).
☐
Joint and Several (Defendant and Co-Defendant Names, Case Numbers (including
defendant number), Total Amount, Joint and Several Amount, and corresponding
payee, if appropriate): _________
☐
The defendant shall pay the cost of prosecution; or ☐ The defendant shall pay the
following court costs:
☒
The defendant shall forfeit the defendant’s interest in the following property to the
United States: $2,265,380, joint and several with co-defendant Robert Hofschulz,
representing proceeds derived from the defendants’ conspiracy to distribute and
distribution of controlled substances outside of a professional medical practice and not
for a legitimate medical purpose.
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Document 234
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
UNITED STATES OF AMERICA,
Plaintiff,
Case No. 18-cr-145-pp
v.
LISA HOFSCHULZ,
and ROBERT HOFSCHULZ,
Defendants.
______________________________________________________________________________
PRELIMINARY RULING ON DISPUTED PROPOSED JURY INSTRUCTIONS
(DKT. NO. 115 at 20-39)
______________________________________________________________________________
This case is scheduled for a jury trial starting August 2, 2021. Dkt. No.
151. The parties have submitted proposed jury instructions. Dkt. No. 115 at
pp. 20-39. Normally the court would wait to rule on disputed jury instructions
until after presentation of the evidence; depending on what evidence is
admitted at trial, some proposed instructions become unnecessary and others
must be modified. Here, the government has asked the court to rule on the
disputed instructions sooner.
This order provides the parties with the court’s preliminary ruling on
specific, disputed instructions. The court emphasizes the preliminary nature of
this ruling; as it explains later in the decision, if certain evidence comes in at
trial, the court may be required to modify the conclusions it reaches here.
1
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A.
Background
On June 26, 2018, the grand jury issued an indictment charging Lisa
and Robert Hofshulz with knowingly and intentionally conspiring with each
other and others to distribute controlled substances outside of a professional
medical practice and not for a legitimate medical purpose in violation of 21
U.S.C. §§841(a)(1), 841(b)(1)(C) and 846. Dkt. No. 1 at 1-5. The indictment
alleged that Lisa Hofschulz, an advanced nurse practitioner, had owned and
operated a medical clinic called Clinical Pain Consultants since December
2014; that she was registered with the DEA and authorized to prescribe
oxycodone, morphine, fentanyl, methadone, lorazepam and Adderall. Id. at 1-2.
It alleged that Robert Hofshulz was not such a registered prescriber, id. at 2,
but that he did become CPC’s registered agent in December 2014, id. at 3. The
grand jury charged that Lisa Hofschulz prescribed “excessive dosages of
controlled substances outside of a professional medical practice and not for a
legitimate medical purpose especially oxycodone and methadone.” Id. at 4. It
alleged that Lisa and Robert Hofschulz hired other prescribers to prescribe in
the same way as Lisa Hofschulz, and directed a person not authorized to issue
prescriptions to distribute them when authorized prescribers refused to do so.
Id. at 4.
The indictment also included thirteen counts of knowingly and
intentionally distributing and dispensing unlawfully certain controlled
substances to certain patients on certain dates, outside of a professional
medical practice and not for a legitimate medical purpose; all thirteen counts
2
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named Lisa Hofschulz as a defendant and four also named Robert Hofschulz.
Id. at 6-7.
Eight months later, on February 26, 2019, the grand jury returned a
superseding indictment. Dkt. No. 29. The superseding indictment added a
fifteenth count, alleged solely against Lisa Hofschulz:
1.
On or about November 19, 2015, in the State and
Eastern District of Wisconsin,
LISA HOFSCHULZ,
Knowingly and intentionally distributed Oxycodone and Morphine,
both Schedule II controlled substances, to F.E. outside of a
professional medical practice and not for a legitimate medical
purpose.
2.
The death of F.E. resulted from the use of the
Oxycodone and Morphine distributed by Lisa Hofschulz.
All in violation of Title 21, United States Code, Sections
841(a)(1) and (b)(1)(C), and Title 18, United States Code, Section 2.
Id. at 8.
B.
The Parties’ Proposed Instructions
While the government has proposed many of the Seventh Circuit’s
pattern criminal jury instructions and several “special”—that is, non-pattern—
instructions, the defendants have proposed their own versions of only a few
instructions and the parties do not dispute some of those. This preliminary
ruling addresses only those instructions the parties have indicated they
dispute.
1.
Elements of 21 U.S.C. §841(a)(1)
The government has proposed the following instruction:
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Controlled Substances – Illegal Distribution
To sustain the charge of distributing or dispensing
unlawfully a controlled substance, as charged in all counts of the
indictment, the United States must prove the following
propositions:
First, that the defendant knowingly distributed or dispensed
a controlled substance(s) or attempted to do so;
Second, that the defendant did so by prescribing the
controlled substance(s) outside of the usual course of professional
medical practice and not for a legitimate medical purpose; and
Third, that the defendant knew that the substance was some
kind of a controlled substance.
If you find from your consideration of all the evidence that each of
these propositions has been proved beyond a reasonable doubt,
then you should find the defendant guilty. If, on the other hand,
you find from your consideration of all the evidence that any one of
these propositions has not been proved beyond a reasonable
doubt, then you should find the defendant not guilty.
Dkt. No. 115 at 23.
Defendant Robert Hofshulz has proposed no alternative to this
instruction.
Defendant Lisa Hofschulz has proposed the following alternative:
Controlled Substances – Illegal Distribution
To sustain the charge of distributing or dispensing unlawfully
a controlled substance, as charged in each count of the indictment,
the government just prove the following propositions:
First, that the defendant knowingly distributed or dispensed
a controlled substance(s);
Second, that the defendant knew that the substance was
some kind of controlled substance;
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Third, that the defendant distributed or dispensed the
controlled substance(s) outside the usual course of professional
practice and not for a legitimate medical purpose; and
Fourth, that the defendant did so knowingly and intentionally.
If you find from your consideration of all the evidence that
each of these propositions has been proved beyond a reasonable
doubt, then you should find the defendant guilty. If, on the other
hand, you find from your consideration of all the evidence that any
one of these propositions has not been proved beyond a reasonable
doubt, then you should find the defendant not guilty.
Dkt. No. 115 at 32.
2.
Definition of Knowingly
Among the Seventh Circuit pattern instructions the government has
proposed is Pattern Instruction 4.10. Dkt. No. 115 at 20. That instruction
reads:
4.10 DEFINITION OF KNOWINGLY
A person acts “knowingly” if he realizes what he is doing and
is aware of the nature of his conduct, and does not act through
ignorance, mistake, or accident. [In deciding whether the defendant
acted knowingly, you may consider all of the evidence, including
what the defendant did or said.]
[You may find that the defendant acted knowingly if you find
beyond a reasonable doubt that he believed it was highly probable
that [state fact as to which knowledge is in question, e.g., “drugs
were in the suitcase,” “the financial transaction was false,”] and that
he took deliberate action to avoid learning that fact. You may not
find that the defendant acted knowingly if he was merely mistaken
or careless in not discovering the truth, or if he failed to make an
effort to discovery the truth.]
The William J. Bauer Pattern Criminal Jury Instructions of the Seventh Circuit
(2020 Ed.), Instruction 4.10.
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Defendant Robert Hofschulz has not proposed an alternative to the
pattern instruction.
Defendant Lisa Hofschulz proposes the following alternative:
Definition of Knowingly
A person acts knowingly if she realizes what he [sic] is doing
and is aware of the nature of her conduct, and does not act through
ignorance, mistake, or accident. In the context of this case, this
means that the government must prove beyond a reasonable doubt
that Lisa Hofschulz knew that her prescribing of the controlled
substance at issue was both outside the usual course of medical
practice and not for a legitimate medical purpose.
Dkt. No. 115 at 34.
3.
Instructions Related to Illegal Prescription of Controlled Substances
The government has proposed the following instructions:
Outside the Usual Course of Professional Medical Practice and
Not for a Legitimate Purpose
Federal law authorizes registered medical practitioners to
dispense a controlled substance by issuing a lawful prescription.
Registered practitioners are exempt from criminal liability if they
distribute or dispense controlled substances for a legitimate medical
purpose while acting in the usual course of professional practice. A
registered practitioner violates Section 841(a)(1) of Title 21 of the
United States Code if the practitioner distributes or dispenses a
controlled substance without a legitimate medical purpose and
outside the usual course of standard professional practice.
A prescriber’s own treatment methods do not themselves
establish what constitutes professional medical practice. In
determining whether the defendant’s conduct was outside the usual
course of professional medical practice, you should consider the
testimony you have heard relating to what has been characterized
during the trial as the norms of professional practice. You should
consider the defendant’s actions as a whole, the circumstances
surrounding them, and the extent of severity of any violations of
professional norms you find the defendant may have committed.
Dkt. No. 115 at 24.
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Good Faith in the Usual Course of Professional Medical
Practice
The Defendant may not be convicted if she dispenses or
causes to be dispensed controlled substances in good faith in
accordance with the standards of professional medical practice
generally recognized and accepted in the United States. Only the
lawful acts of a prescriber, however, are exempted from prosecution
under the law. Good faith in this context means an observance of
conduct in accordance with what the prescriber should reasonably
believe to be proper medical practice defined by generally recognized
and accepted standards of professional medical practice. In
determining whether the defendant acted in good faith in the usual
course of professional medical practice, you may consider all of the
evidence in the case which relates to that conduct.
Dkt. No. 115 at 25.
Defendant Robert Hofschulz does not appear to object to these two
instructions. Dkt. No. 115 at 29 (“In addition to those instructions sought by
the Government, Robert Hofschulz seeks the Court to give . . . .”). He asks,
however, that the court give an additional good faith instruction as to him. He
asks the court to give Seventh Circuit Pattern Jury Instruction 6.11:
6.11 GOOD FAITH—TAX AND OTHER TECHNICAL STATUTE
CASES
A person does not act willfully if he believes in good faith that
he is acting within the law, or that his actions comply with the law.
Therefore, if the defendant actually believed that what he was doing
was in accord with the [tax; currency structuring; other technical
statute] laws, then he did not willfully [evade taxes; fail to file tax
returns; make a false statement on a tax return; other charged
offense]. This is so even if the defendant’s belief was not objectively
reasonable, as long as he held the belief in good faith. However, you
may consider the reasonableness of the defendant’s belief, together
with all the other evidence in the case, in determining whether the
defendant held that belief in good faith.
The William J. Bauer Pattern Criminal Jury Instructions of the Seventh Circuit
(2020 Ed.), Instruction 6.11.
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Defendant Lisa Hofschulz proposes an alternative instruction to those
proposed by the government:
Good Faith in the Usual Course of Professional Medical
Practice
A licensed practitioner such as Lisa Hofschulz is authorized
to prescribe drugs only when she is acting as a medical practitioner.
In making a medical judgment concerning the right treatment for an
individual patient, medical practitioners have discretion to choose
among a wide range of available options. Therefore, in determining
whether Lisa Hofschulz acted knowingly without a legitimate
medical purpose, you should examine all of her actions and the
totality of the circumstances surrounding those actions.
Lisa Hofschulz contends that she prescribed controlled
substances in good faith. The offenses charged in the indictment
require proof that Lisa Hofschulz knowingly and intentionally
distributed controlled substances outside the usual course of
professional practice and not for a legitimate medical purpose. If you
find that Lisa Hofschulz acted in good faith, that would be a
complete defense for these charges because good faith on the part of
Lisa Hofschulz would be inconsistent with her acting knowingly and
intentionally. A person acts in good faith when he or she has an
honestly held belief of the truth of the statements being given to
them even though the belief turns out to be inaccurate or incorrect.
God faith in this context means good intentions and the honest
exercise of professional judgment as to a patient’s medical needs.
Lisa Hofschulz does not have the burden of proving good faith.
Good faith is a defense because it is inconsistent with the
requirement of the offenses that she acted knowingly and
intentionally. As I have instructed you, the government must prove
Lisa Hofschulz’s mental state beyond a reasonable doubt. In
deciding whether the Government proved that Lisa Hofschulz acted
knowingly and intentionally, or instead whether Lisa Hofschulz
acted in good faith, you should consider all the evidence presented
in the case that may bear on Lisa Hofschulz’s state of mind.
If you find from the evidence that the government failed to
prove beyond a reasonable doubt that Lisa Hofschulz acted
knowingly or intentionally, or that the government failed to prove
any other element as to any one of the counts, you must find Lisa
Hofschulz not guilty as to that count. If, on the other hand, you find
that the government proved beyond a reasonable doubt each of the
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elements as to any count, then you should find Lisa Hofschulz guilty
as to that count.
Dkt. No. 115 at 35.
4.
Standard of Care Instruction
Lisa Hofschulz has proposed the following instruction:
Not Malpractice
In your experiences, some of you may be familiar with or have
heard of medical malpractice or the standard of care. This is not a
medical malpractice case. Those terms are used in civil cases when
a patient is seeking damages. Medical malpractice is the
unwarranted departure from generally accepted standards of
medical practice allegedly resulting in injury to a patient. This,
however, is a criminal case, and you must apply the instructions I
am giving to you now and determine whether Lisa Hofschulz
distributed or dispensed a controlled substance outside the usual
course of professional practice and not for a legitimate medical
purples. You are not deciding whether Lisa Hofschulz should be
liable for medical malpractice.
Dkt. No. 115 at 39.
The government objects to this instruction. Id.
C.
Analysis
1.
Governing Law
The indictment alleges that the defendants conspired to violate, or
violated, 21 U.S.C. §841(a)(1). That statute states:
(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, distribute, or dispense, a controlled substance . . .
.
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Most commonly, the government brings charges for violations of
§841(a)(1) against defendants who have no legal authority to distribute or
dispense controlled substances. The Seventh Circuit has two pattern
instructions for cases alleging violations of 21 U.S.C. §841(a)(1), both of which
were intended for that circumstance—a case in which the defendant had no
legal authority to distribute or dispense controlled substances. The first—an
instruction on the elements of distribution of a controlled substance—requires
the government to prove beyond a reasonable doubt that the defendant
knowingly distributed a particular controlled substance and that she knew the
substance was some kind of controlled substance. The William J. Bauer
Pattern Criminal Jury Instructions of the Seventh Circuit (2020 Ed.), p. 880.
The second—an instruction on the elements of possession with intent to
distribute—requires the government to prove beyond a reasonable doubt that
the defendant knowingly possessed a particular controlled substance, that she
intended to distribute that person to another person and that she knew it was
some kind of controlled substance. Id., p. 883.
Neither of these instructions fits the circumstances of this case, in which
the defendant accused of having violated the statute is a registered prescriber
authorized to possess and distribute controlled substances knowing that they
are controlled substances. A person registered and authorized to prescribe
controlled substances would not violate the statute simply because she
possessed a controlled substance, intended to distribute it to another person
and knew it was a controlled substance; while those elements describe a crime
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for someone who is not a licensed prescriber, they describe the job of someone
who is a licensed prescriber.
In December 1975, the Supreme Court decided United States v. Moore,
423 U.S. 122 (1975). A doctor had been charged with, tried for and convicted of
violating 21 U.S.C. §841(a)(1) by unlawfully distributing and dispensing
methadone. Id. at 124-25. The D.C. Court of Appeals, while assuming that the
defendant had acted wrongfully (the defendant admitted that he had not
observed “generally accepted medical practices,” had run a large-scale
operation writing hundreds of methadone prescriptions a day to patients who
received only “the most perfunctory” examinations before being prescribed the
amount of the drug they requested, id. at 126-27), held that the doctor could
not be prosecuted under §841 and that Congress had intended for registered
physicians to be prosecuted only under 21 U.S.C. §§842 and 843. Id. at 12728.
The Supreme Court disagreed. It concluded that in enacting §841,
“Congress was concerned with the nature of the drug transaction, rather than
with the status of the defendant.” Id. at 134. In noting that the House
Committee Report on what became the Controlled Substances Act stated that
the bill “makes transactions outside the legitimate distribution chain illegal,”
the Court stated that the “most sensible interpretation” of that language was
that a violation “was intended to turn on whether the ‘transaction’ falls within
or without legitimate channels.” Id. at 135.
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In response to the defendant’s argument that the specific conduct
prohibited by §841 is authorized for a registered prescriber, the Supreme Court
noted that ‘[t]he trial judge assumed that a physician’s activities are authorized
only if they are within the usual course of professional practice.” Id. at 138.
The trial judge had told the jury that to convict the defendant, it must find
beyond a reasonable doubt that a physician, who knowingly or
intentionally, did dispense or distribute methadone) by prescription,
did so other than in good faith for detoxification in the usual course
of a professional practice and in accordance with a standard of
medical practice generally recognized and accepted in the United
States.
Id. at 138-39. The Court recounted that the court of appeals had not addressed
the defendant’s argument because it had concluded that doctors could not be
prosecuted under §841, but that it had suggested that if a doctor could be
prosecuted under that section, “he could not be prosecuted merely because his
activities fall outside the ‘usual course of practice.’” Id. at 139.
Again, the Supreme Court disagreed. It cited various provisions of the
Controlled Substances Act that “reflect the intent of Congress to confine
authorized medical practice within accepted limits.” Id. at 141-42. In
particular, the Court referenced §802(2), which defined a “practitioner” as
someone who dispensed drugs “in the course of professional practice or
research.” Id. at 141. The Moore Court concluded that there was sufficient
evidence presented at trial “for the jury to find that respondent’s conduct
exceeded the bounds of ‘professional practice.’” Id. at 142. The Court said,
As detailed above, he gave inadequate physical examinations or
none at all. He ignored the results of the tests he did make. He did
not give methadone at the clinic and took no precautions against its
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misuse and diversion. He did not regulate the dosage at all,
prescribing as much and as frequently as the patient demanded. He
did not charge for medical services rendered, but graduated his fee
according to the number of tablets desired. In practical effect, he
acted as a large-scale “pusher” not as a physician.
Id. at 142-43.
Ten months before the Supreme Court issued its decision in Moore, the
Seventh Circuit had faced the same issue. In United States v. Green, 511 F.2d
1062 (7th Cir. 1975), the defendants (physicians and a pharmacist) had been
convicted of illegally “dispensing or distributing of controlled substances
pursuant to prescriptions allegedly issued without a legitimate medical purpose
or outside the usual course of professional practice” in violation of §841(a) and
21 C.F.R. §306.04(a)1. Green, 511 F.2d at 1063. The defendants challenged
their convictions based on the D.C. Court of Appeals’ decision in Moore—the
one the Supreme Court later would overturn. Id. at 1067-68. As the Supreme
Court would do ten months later, the Seventh Circuit concluded that §841
“does not exclude physicians from its coverage.” Id. at 1069. The court then
considered “precisely what type of dispensing or distributing is authorized by
the exception clause of section 841.” Id. The court looked to 21 C.F.R.
§306.04(a), which “provide[d] that a prescription for a controlled substance to
be effective must be issued for a legitimate medical purpose by a practitioner
acting in the usual course of his professional practice.” Id. The court concluded
that the regulation did not expand the criminal statute, and that the
defendants had violated the statute because “there were wholesale sales of
1
Now 21 C.F.R. §1306.04.
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prescriptions without even the pretense of a legitimate medical purpose or
standard medical procedures.” Id. at 1070.
One of the Green defendants challenged the jury instruction “on what
constituted a defense by a physician to an action under section 841(a).” Id. at
1071. The judge had instructed the jury that it was a defense “if the substance
is prescribed by [the physician] in good faith in medically treating a patient.”
Id.2 The defendant argued that the court should have given “an instruction that
would have established a defense on the mere showing that a controlled
substance was prescribed by a physician for his patient’s own use.” Id. The
Seventh Circuit rejected this argument, finding that the proffered instruction
was “too broad” and would have had the effect of applying the rationale used by
the court of appeals in Moore. Id. The court stated,
We have decided that a prescription issued by a physician that is so
far removed from a physician’s professional responsibilities (i.e.
The entire instruction given by the trial judge read: “Federal law authorizes a
licensed physician to prescribe controlled substances of the kinds charged in
the indictment, if the drug is prescribed in the course of the physician’s
professional practice. The defendant [] is a licensed physician. It is therefore a
defense to the charges in this indictment that the controlled substances were
prescribed by him in the course of his professional practice. A controlled
substance is prescribed by a physician in the course of his professional
practice, and therefore lawfully, if the substance is prescribed by him in good
faith in medically treating a patient. In order to determine whether or not a
prescription or prescriptions were issued in the course of a defendant
physician’s professional practice, you may consider all of the evidence of
circumstances surrounding the prescribing of the substance in question, the
statements of the parties to the prescription transaction, any expert testimony
as to what is the usual course of medical practice, and any other competent
evidence bearing on the purpose for which the substances in question were
prescribed. Unless you find beyond a reasonable doubt that an act of
prescribing charged in the indictment against a physician defendant was not
done by the defendant physician in the course of his professional practice,,
then you should not find him guilty.” Green, 511 F.2d at 1071 n.22.
2
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more than mere technical violations of his authorization) violates
section 841(a). The ‘good faith medical treatment’ instruction seems
to be an accurate reflection of this holding and in no way was
prejudicial to the defendant’s case.
Id.
The current iteration of the regulation referenced in Green is 21 C.F.R.
§1306.04(a)—which states:
§1306.04 Purpose of issue of prescription.
(a) A prescription for a controlled substance to be effective must be
issued for a legitimate medical purpose by an individual practitioner
acting in the usual course of his professional practice. The
responsibility for the proper prescribing and dispensing of controlled
substances is upon the prescribing practitioner, but a
corresponding responsibility rests with the pharmacist who fills the
prescription. 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 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.
Later in 2007—after the Supreme Court had issued its decision in
Moore—the Seventh Circuit decided United States v. Bek, 493 F.3d 790 (7th
Cir. 2007). The defendant doctor in Bek ran a pain-management clinic in
Indiana; the jury convicted him of, among other things, illegally prescribing
controlled substances. Id. at 795. On appeal, the defendant argued that the
evidence was insufficient to support his convictions for “unauthorized
distribution of controlled substances because the government’s experts testified
as to the civil ‘standard of care’ rather than the higher criminal ‘course of
professional practice’ standard.” Id. at 798. As the Seventh Circuit put it,
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“[e]ssentially, Bek argues that the government’s evidence proved malpractice,
not criminal conduct.” Id.
Citing the Supreme Court’s decision in Moore and its own decision in
Green, the Seventh Circuit said that to convict a registered practitioner of
violating §841(a), “the government must show that he prescribed controlled
substances outside ‘the course of professional practice.’” Id. The court found
that the defendant’s concerns about the jury being misled were “allayed by the
jury instructions, which he did not contest.” Id.
The instructions stated that the government had to prove that Bek
distributed controlled substances “other than for a legitimate
medical purpose or not within the bounds of professional medical or
pharmaceutical practice.” The court also specifically instructed the
jury that “[i]n determining whether the defendant’s conduct was
within the bounds of professional medical practice, you should
consider the testimony you have heard relating to what has been
characterized during trial as the ‘norms’ of professional practice.”
We must presume that the jury followed these proper instructions,
see Laxton v. Bartow, 421 F.3d 565, 573 (7th Cir. 2005), and relied
upon the evidence of the norms of professional practice to determine
whether Bek’s conduct fell outside the “course of professional
practice.”
Id. at 798-99.
The court went on to conclude that the evidence presented at trial
satisfied “the criminal standard”:
Witnesses described practices inconsistent with legitimate medical
care: uniform, superficial, and careless medical examinations (e.g.,
blood pressures taken through clothing); exceedingly poor recordkeeping, which one expert called “astonishing” (e.g., reporting
temperatures of 98.6º for nearly every patient); and a disregard of
blatant signs of drug abuse. The experts testified that Bek
prescribed the “same menu” and same dosages of drugs to different
patients, regardless of body build and kidney function. Further, they
noted that contrary to accepted medical practice, Bek prescribed
multiple medications having the same effects (e.g., two muscle
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relaxants prescribed at a time), and drugs that are dangerous when
taken in combination. And, they concluded that Bek’s conduct “was
for other than legitimate medical purpose.” The jury had more than
enough evidence to determine that Bek had a general practice of
prescribing controlled substances outside the course of professional
conduct.
Id. at 799.
The following year, the Seventh Circuit decided United States v. Chube II,
538 F.3d 693 (7th Cir. 2008). The defendants, medical doctor siblings, were
convicted of unlawful distribution of controlled substances. Id. at 694-95. On
appeal, the defendants argued that “their convictions . . . assess their actions
by reference to the standard of care applicable in a civil malpractice suit, but
the proper standard is the one found in the Controlled Substances Act (“CSA”),
which authorizes the conviction of a registered practitioner only if the
prescription was written without a legitimate medical purpose and outside the
scope of professional practice.” Id. at 695. The defendants alleged that the
testimony of the government’s expert witnesses “conflated the civil and criminal
standards of care and thus created a risk that the jury found liability not
because it concluded that the Doctors’ acts of prescribing medication fell
outside the scope of legitimate medical practice, but instead because it thought
they had been careless.” Id. at 696. The “battleground of the litigation . . . was
whether the Doctors knew that no legitimate medical reason existed for
prescribing painkillers to” the patients who had testified. Id.
The defendants had filed a pretrial motion in limine, arguing that the
court should have excluded some or all the testimony of two government
experts. Id. at 697.
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Dr. [Theodore] Parran, who specialize[d] in internal medicine and
addiction medicine, evaluated all 98 patient files in the record.
Based on that review, he concluded that the prescribing “was not
done consistent with the usual standards of medical practice” and
thus was not done with a “legitimate medical purpose.” Dr. [Robert]
Barkin was called as an expert on pharmacology. Though not a
medical doctor, Dr. Barkin received his doctorate in clinical
pharmacy in 1984 and is board-certified by various associates for
pain management and forensic medicine. Like Dr. Parran, Dr.
Barkin testified solely on the basis of the patient charts, although
he reviewed only a selection. He, too, concluded that the
prescriptions in the carts that he reviewed were issued “[o]utside the
scope of medical practice, not for legitimate purposes.”
Id. at 696-97.
The defendants described the purpose of their motion in limine as a
“request that [the trial court] enter a preliminary ruling prohibiting the
Government from introducing any evidence at trial that the Chubes’ treatment
of patients did not conform to the ‘standards of medical practice’, or any other
evidence that would be suggestive of a violation of the civil standard of care
applicable in medical malpractice cases.” Id. at 697. The government
characterized the purpose of the motion as an attempt to exclude all expert
testimony “that would suggest a violation of the standard of care applicable in
civil medical malpractice cases.” Id. The government conceded that “the expert
testimony would not be conclusive on the question of the Doctors’ criminal
liability,” but argued that the evidence was relevant “to circumstantially
establishing that the defendants had knowingly and intentionally distributed
drugs as mere pill-pushers rather than in course of a professional medical
practice.” Id. The defendants replied that they agreed the testimony had some
relevance; they were trying only to limit any portion of the evidence that
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“tended to conflate the civil and criminal standards, not to exclude it entirely.”
Id. The Seventh Circuit concluded that the district court had not abused its
discretion in denying the motion, given the defendants’ concession that the
experts’ testimony had some relevance and their insistence that they were not
trying to exclude the expert testimony entirely. Id.
The defendants also argued that the court should have stricken or
excluded the experts’ testimony during the trial “once it became clear that the
testimony was creating precisely the type of confusion that the motion in limine
sought to prevent.” Id. The defendants argued that the expert testimony
“reduce[d] the Government’s burden from the standard of criminal intent to the
negligence requirement that applies to civil malpractice.” Id.
To address this argument, the Seventh Circuit returned to the proof
required to convict registered prescribers under §841(a).
In order to support a violation of the CSA, the jury had to find that
the Doctors knowingly and intentionally acted “outside the course
of professional practice” and without a legitimate medical purpose.”
An implementing regulation issued under the CSA, 21 C.F.R.
§ 1306.04, reiterates this standard: “A prescription for a controlled
substance[,] to be effective[,] must be issued for a legitimate medical
purpose by an individual practitioner acting in the usual course of
his professional practice.” See, e.g., United States v. Bek, 493 F.3d
790, 798 (7th Cir. 2007) (“[T]o convict … a practitioner registered to
distribute controlled substances[] of violating § 841(a)(1), the
government must show that he prescribed controlled substances
outside ‘the course of professional practice.’”); see also United States
v. Moore, 423 U.S. 122, 138-43 . . . (1975). As one court summarized
it:
[T]o convict a practitioner under § 841(a), the government
must prove (1) that the practitioner distributed controlled
substances, (2) that the distribution of those controlled
substances was outside the usual course of professional
practice and without a legitimate medical purpose, and (3)
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that the practitioner acted with intent to distribute the drugs
and with intent to distribute them outside the course of
professional practice. In other words, the jury must make a
finding of intent not merely with respect to distribution, but
also with respect to the doctor’s intent to act as a pusher
rather than a medical professional.
United States v. Feingold, 454 F.3d 1001, 1008 (9th Cir. 2006).
Id. at 697-98.
Against this backdrop, the Seventh Circuit agreed with the government
“that it is impossible sensibly to discuss the question whether a physician was
acting outside the usual course of professional practice and without a
legitimate medical purpose without mentioning the usual standard of care.” Id.
at 698. The court conceded that the experts “did not, every time, spell out the
fact that something more than conduct below the usual standard of care was
needed to show an absence of a valid medical purpose,” and noted that at a
pretrial motions hearing, the district court had indicated that the government
possibly could proceed on a theory that the defendants “didn’t do the proper
work-up.” Id. But the court found that typically during the trial itself, the jury
heard from the experts “(1) an opinion from the expert that no legitimate
medical purpose existed for the prescription in question; and (2) a clarification
from the court that the ‘standard of care’ is an issue distinct from the question
of ‘legality.’” Id. The court concluded that the district court did not abuse its
discretion in allowing the challenged lines of questioning of the experts and
concluded “that a properly instructed jury could keep the relevant concepts
straight.” Id. at 699.
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That led the Seventh Circuit to the defendants’ challenge to the jury
instructions. The trial court had given the following instructions:
A controlled substance is prescribed by a physician in the course of
his professional practice, and therefore lawfully, if the substance is
prescribed by him in good faith in medically treating a patient.
Good faith means good intentions and the honest exercise of good
professional judgment as to a patient’s medical needs. Good faith
means an observance of conduct in accordance with what the
physician should reasonably believe to be proper medical care.
In order to determine whether or not a prescription or prescriptions
were issued in the course of a defendant physician’s professional
practice, you may consider all of the evidence of circumstances
surrounding the prescribing of the substance in question, the
statements of the parties to the prescription transactions, any expert
testimony as to what is the usual course of medical practice, and
any other competent evidence bearing on the purpose for which the
substances in question were prescribed.
Unless you find beyond a reasonable doubt that an act of prescribing
charged in the Superseding Indictment was not done in the course
of his professional practice, then you should find the defendant you
are considering not guilty of the charge you are considering.
Id.
The Seventh Circuit opined that there were “several points at which the
instructions make clear that unlawful-distribution liability cannot attach
unless no legitimate medical purpose existed for their prescription,” including
the instructions’ elaboration on the meaning of “in the course of professional
practice” and “no legitimate medical purpose.” Id. The court also observed that
the trial court had “permitted defense counsel to draw out the distinctions
between the civil and criminal burdens during opening statements, crossexaminations, and closing arguments.” Id.
The court then stated,
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Though it is true that the jury instructions did not spell out the
distinction between the civil and criminal burdens of proof as
expressly as the court did in a case reviewed by the Fourth Circuit,
see United States v. Alerre, 430 F.3d 681, 687 & n.5 (4th Cir. 2005),
there is no one right way to convey the governing standards. This is
particularly true where, as here, the defense made no effort even to
propose the desired instruction. If it were vital to the defense that
the jury receive further clarification on this issue, then the defense
should have submitted a proposed instruction.
Id.
The Alerre decision to which the Chube court referred “assess[ed] the
proper relationship between the civil and criminal standards of liability for a
physician who has prescribed drugs.” Alerre, 430 F.3d at 689. The Alerre court
indicated that an “enhanced analysis” of the traditional §841(a)(1) elements
applied “to persons who are properly registered with the DEA,” explaining that
under 21 U.S.C. §822, “such persons—including doctors—are authorized to
distribute controlled substances to the extent authorized by their
registrations.” Id. The court discussed the Supreme Court’s conclusion in
Moore that registered doctors could be held criminally liable under §841 when
their activities fell “outside the usual course of professional practice,” id. at 690
(quoting Moore, 423 U.S. at 124), then explained that “[i]n discussing the
proper application of the criminal standard, we have observed that ‘a licensed
physician who prescribes controlled substances outside the bounds of his
professional medical practice is subject to prosecution and is no different than
a large-scale pusher,’” id. (citing United States v. Tran Trong Cuong, 18 F.3d
1132, 1137 (4th Cir. 1994)). The court contrasted that with the South Carolina
standard for civil medical malpractice, where a plaintiff must show “(1) ‘the
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generally recognized practices and procedures that would be exercised by
competent practitioners in a defendant doctor’s field of medicine under the
same or similar circumstances,’ and (2) ‘that the defendant doctor departed
from the recognized and generally accepted standards, practices, and
procedures.’” Id. (quoting Gooding v. St. Francis Xavier Hosp., 487 S.E.2d 596,
599 (1997)).
The Alerre court explained that in Tran Trong Cuong, it had
observed that a criminal prosecution requires “proof beyond a
reasonable doubt that the doctor was acting outside the bounds of
professional medical practice.” Tran Trong Cuong, 18 F.3d at 1137.
[The Tran Trong Cuong decision] elaborated that, in such a
situation, a physician’s authority to prescribe drugs is being used
“not for treatment of a patient, but for the purpose of assisting
another in the maintenance of a drug habit or of dispensing
controlled substances for other than a legitimate medical purpose,
i.e. the personal profit of the physician.” Id. We concluded that the
instructions in Tran’s trial not only comported with the criminal
standard, but also required the prosecution to prove that the
physician had written prescriptions “without a legitimate medical
purpose,” arguably a more stringent requirement then the criminal
standard announced in Moore, inuring “to [the] defendant’s benefit.”
Id. at 1137-38.
Id. at 690-91.
The Alerre court then turned to the defendants’ arguments that the
lawyers—prosecution and defense—had “erroneously conflated the criminal
standard with the civil standard and that, as a result, they were tried and
convicted for civil malpractice rather than for the criminal distribution of
drugs.” Id. at 691. The trial court had given several jury instructions, including
an instruction that the jury “could not convict on the distribution and drug
conspiracy charges if it found only that the defendants’ practices fell ‘below
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that line of what a reasonable physician would have done.’” Id. at 687. The
court told the jury that “in order to convict on the distribution and drug
conspiracy charges, the jury was obliged to find beyond a reasonable doubt
that the defendants were selling drugs, or conspiring to do so, and not
practicing medicine.” Id.
The appellate court noted that the trial court had given the same jury
instructions as the ones the Fourth Circuit had approved in the Tran Trong
Cuong case, but that it had “more clearly articulated the distinction between
the civil standard and the criminal standard.” Id. at 691 n.9. It noted that the
trial court had “cautioned the jury about the standard-of-care evidence” and
“explained the degree of proof (i.e., proof beyond a reasonable doubt) necessary
for a criminal conviction.” Id.
The Fourth Circuit quoted the “standard-of-care” instruction the trial
court had given:
There has been some mention … of the standard of care. I’m not so
sure the word[] malpractice ha[s] not been used. Those words relate
to civil actions. When you see a doctor, as a patient, that doctor
must treat you in a way so as to meet the standard of care that
physicians of similar training would have given you under the same
or similar circumstances.…
That’s not what we’re talking about. We’re not talking about these
physicians acting better or worse than other physicians. We’re
talking about whether or not these physicians prescribed a
controlled substance outside the bounds of their professional
practice.
Id. at 687 n.5. It also explained that
[t]he court further instructed the jury that “[i]f you find that a
defendant acted in good faith in dispensing the drugs charged …,
then you must find that defendant not guilty.” J.A. 1298. The court
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then addressed the standard-of-care evidence and instructed the
jury that the critical issue on the distribution and drug conspiracy
charges was not whether the defendants had acted negligently, but
“whether or not these physicians prescribed a controlled substance
outside the bounds of their professional practice.’ J.A. 1299.
Id. at 691 n.9.
In responding to the defendants’ argument that the lawyers improperly
conflated criminal and civil standards and thus that they were convicted of
malpractice, the Fourth Circuit concluded that “the jury was correctly
instructed on the applicable legal principles.” Id. at 692. The appellate court
stated that
[t]he trial court was careful to spell out the differences between the
criminal standard and the civil standard. Indeed, it admonished the
jury that the defendants could only be convicted under the criminal
standard, and it emphasized that they could not be convicted if they
had dispensed the controlled substances at issue “in good faith.”
Id.
The instructions the Fourth Circuit had approved in Tran Trong Cuong
were as follows:
The third element, no legitimate medical purpose. The final element
the government must prove beyond a reasonable doubt is that the
defendant prescribed the drug other than for legitimate medical
purpose and not in the usual course of medical practice.
In making a medical judgment concerning the right to treatment for
an individual patient physicians have discretion to choose among
the wide range of available options. Therefore, in determining
whether defendant acted without a legitimate medical purpose, you
should examine all the defendant’s actions and the circumstances
surrounding them.
For example, evidence that a doctor warns his patients to fill their
prescription at different drug stores, prescribes drugs without
performing any physical examinations or only very superficial ones,
or ask [sic] patients about the amount or type of drugs they want,
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may suggest that the doctor is not acting for a legitimate medical
purpose other than a [sic] outside the usual course of medical
practice. These examples are neither conclusive nor exhaustive.
They are simply meant to give you an idea of the kind of behavior
from which you may conclude that a doctor was not prescribing
drugs for a legitimate medical purpose and was not acting in the
usual course of medical practice.
A doctor dispenses a drug in good faith in medically treating a
patient, then the doctor has dispensed the drug for a legitimate
medical purpose in the usual course of medical practice. That is, he
has dispensed the drug lawfully. Good faith in this context means
good intentions in the honest exercise of best professional judgment
as to a patient’s need. It means the doctor acted in accordance with
what he believed to be proper medical practice.3
If you find the defendant acted in good faith in dispensing the drug,
then you must find him not guilty.
Tran Trong Cuong, 18 F.3d 1132, 1137-38 (4th Cir. 1994).
The Seventh Circuit again had occasion to discuss the elements of
unlawful prescription of controlled substances in 2012 when it decided United
States v. Pellman, 668 F.3d 918 (7th Cir. 2012). Pellman, a medical doctor, was
convicted of distributing fentanyl in violation of §841(a)(1). Id. at 919. In
addressing Pellman’s argument that the government was required to introduce
expert testimony to prove the elements of the unlawful prescription charges,
the Seventh Circuit reviewed what the government was required to prove:
Typically, to convict a person of violation 21 U.S.C. § 841(a)(1), the
government must establish that the defendant knowingly possessed
with an intent to distribute a controlled substance, and that the
defendant knew that the substance was controlled. See United
In its opposition to Lisa Hofschulz’s proposed elements instruction, the
government asks that if the court “believes that the proposed instructions are
unclear as to the third element,” it add language suggested by 3 Leonard B.
Sand, et al., Modern Federal jury Instructions, Instruction 56-18. Dkt. No. 115
at 33. The government then quotes almost identical language to the language
used by the Tran Trong Cuong court.
3
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States v. Bek, 493 F.3d 790, 798 (7th Cir. 2007). Where the
defendant is a physician, however, the government must also show
that he prescribed controlled substances (1) “outside the course of
professional practice” and (2) without a “legitimate medical
purpose.” Id.; see also United States v. Chube, 538 F.3d 693, 69798 (7th Cir. 2008); 21 C.F.R. § 1306.04(a) (“A prescription for a
controlled substance[,] to be effective[,], must be issued for a
legitimate medical purpose by an individual practitioner acting in
the usual course of his professional practice.”).
Id. at 923-24.
Most recently, the Seventh Circuit addressed the jury instruction issue in
United States v. Kohli, 847 F.3d 483 (7th Cir. 2017). The defendant—an Illinois
physician who specialized in pain management—was convicted on several
counts of “prescribing narcotics without a legitimate medical purpose in
violation of § 841(a) of the Controlled Substances Act.” Id. at 486. He argued on
appeal that he was entitled to an acquittal “because the evidence did not
establish that he intentionally engaged in any unlawful conduct.” Id. at 489. In
analyzing that argument, the Seventh Circuit recited the elements of the
offense:
To convict a prescribing physician under § 841(a) of the Controlled
Substances Act, the government must prove that the physician
knowingly prescribed a controlled substance outside the usual
course of professional medical practice and without a legitimate
medical purpose. United States v. Pellmann, 668 F.3d 918, 923, (7th
Cir. 2012); Chube II, 538 F.3d at 698; 21 C.F.R. § 1306.04(a). In
other words, the evidence must show that the physician not only
intentionally distributed drugs but that he intentionally “act[ed] as
a pusher rather than a medical professional.” See Chube II, 538 F.3d
at 698; see also United States v. Moore, 423 U.S. 122, 138-43 . . .
(1975).
Id. at 489-90.
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After concluding that the government had presented “ample evidence
establishing that Dr. Kohli intentionally abandoned his role as a medical
professional and unlawfully dispensed controlled substances with no legitimate
medical purpose,” the court addressed Dr. Kohli’s argument that because the
evidence showed he gave the prescriptions to patients “who suffered from
documented medical conditions associated with chronic pain” and that the
evidence showed that those patients “exhibited addictive behaviors,” “the jury
must have convicted him on the erroneous belief that the Controlled
Substances Act categorically criminalizes prescribing narcotics to patients who
happen to suffer from addiction disorder in addition to chronic pain.” Id. at
490. The appellate court described this argument as missing the mark.
The issue before the jury was not simply whether Dr. Kohli
prescribed narcotics to drug addicts. That, in itself, is certainly not
a violation of the Controlled Substances Act. Rather, the issue was
whether he deliberately prescribed outside the bounds of medicine
and without a genuine medical basis.
* * * * *
To be clear, we agree with Dr. Kohli that physicians are not
automatically liable under § 841(a) whenever they prescribe
narcotics to a patient who happens to be addicted; but we add that
neither are they automatically immune from liability whenever a
patient who is obviously misusing their prescription happens to
suffer from chronic pain. The Controlled Substances Act does not
give physicians carte balance to prescribe controlled drugs for a nonmedical purpose simply because the immediate recipient of the
prescription has an illness that the drugs could in theory alleviate if
used properly. In every case, the critical inquiry is whether the
relevant prescriptions were made for a valid medical purpose and
within the usual course of professional practice. Here, a jury could
reasonably conclude that they were not.
Id. at 490-91 (footnote omitted).
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The court also rejected the defendant’s argument that the district court
erred in allowing the government’s expert to testify about “applicable legal
standards.” Id. at 491. The court noted that the expert “testified that he
believed certain of Dr. Kohli’s prescriptions were inconsistent with the usual
course of professional practice and lacked a legitimate medical purpose.” Id.
The Seventh Circuit concluded “that testimony tracks the elements necessary
to sustain a conviction for illegal dispensation, see 21 C.F.R. § 1306.04(a),” and
that while that testimony embodied an opinion about a dispositive issue in the
case, such opinions are allowed under Fed. R. Evid. 704(a). Id. The court
similarly rejected the defendant’s argument challenging the expert’s testimony
about the applicable legal standard:
It is true that Dr. Parran’s testimony touched on the applicable
standard of care among medical professionals—a standard that is
no doubt closely linked to § 841(a)’s prohibition on prescribing
outside the “usual course of professional medical practice.” But
testimony on the standard of care is not converted into an
impermissible jury instruction on the governing legal standard just
because the two standards overlap. If that were the case, physicians
could virtually never offer meaningful expert opinions in
prosecutions under § 841(a). See Chube II, 538 F.3d at 698
(recognizing that “it is impossible sensibly to discuss the question
whether a physician was acting outside the usual course of
professional practice and without a legitimate medical purpose
without mentioning the usual standard of care”). Dr. Parran did not
lecture the jury about the legal meaning or application of § 841(a),
but simply opined that certain of Dr. Kohli’s actions were medically
unjustified and contrary to standard professional medical practice.
That opinion was within Dr. Parran’s area of expertise and was not
inappropriate under Rule 704 or otherwise.
Id. at 492.
Finally, Dr. Kohli argued on appeal that “the district court erroneously
instructed the jury that a finding of civil malpractice was sufficient to support a
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conviction.” Id. at 494. Dr. Kohli’s counsel did not object to the jury
instructions at the time the trial court gave them, so the Seventh Circuit
reviewed them for plain error. Id. It found no such error:
The court instructed the jury to convict Dr. Kohli of illegally
dispensing controlled substances under § 841(a) only if the jury
found, beyond a reasonable doubt, that Dr. Kohli (1) knowingly and
intentionally prescribed controlled substances (2) outside the usual
course of professional medical practice, and (3) for no legitimate
medical purpose. That is exactly what the statute requires to
support a conviction. See 21 U.S.C. § 841(a); 21 C.F.R. § 1306.04(a).
The district court thus correctly spelled out each of the elements of
the offense, and clearly articulated the appropriate burden of proof
governing criminal liability. The court further instructed the jury
that it should not convict Dr. Kohli if it found that he made the
relevant prescriptions in good faith.
We see no support for Dr. Kohli’s argument that the district court
somehow conflated the standards for civil and criminal liability, or
that it otherwise misled the jury into believing that it could find Dr.
Kohli criminally liable for engaging in mere civil malpractice. The
district court’s jury instructions fairly and accurately stated the law
and do not warrant reversal.
Id.
The following are the instructions that the Kohli trial court gave the jury:
In order for you to find the Defendant guilty of a charge of
causing the illegal dispensation of a Schedule II controlled
substance, the Government must prove the following elements
beyond a reasonable doubt as to the charge that you are
considering:
1:
That the Defendant knowingly caused to be dispensed
the controlled substance alleged in the charge you are considering;
2:
That the Defendant did so by intentionally prescribing
the controlled substance outside the usual course of professional
medical practice, and not for legitimate medical purpose; and
3:
That the Defendant knew that the substance was some
kind of a controlled substance.
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If you find from your consideration of all the evidence that the
Government has proved each of these elements beyond a reasonable
doubt as to the charge you are considering, then you should find the
Defendant guilty of that charge. If, on the other hand, you find from
your consideration of all the evidence that the Government has failed
to prove any one of these elements beyond a reasonable doubt as to
the charge you are considering, then you should find the Defendant
not guilty of that charge.
The term dispense means to deliver a controlled substance to
the ultimate user by or pursuant to the lawful order of a practitioner.
The term practitioner means a physician or other person licensed,
registered, or otherwise permitted by the United States to distribute,
dispense or administer a controlled substance in the course of
professional practice.
With respect to the charges of causing illegal dispensation of
a controlled substance in Counts 4 through 13, the Government
must prove beyond a reasonable doubt that the Defendant caused
to be dispensed to the patient the specific controlled substance while
acting outside the usual course of professional medical practice and
not for legitimate medical purpose. A physician’s own treatment
methods do not themselves establish what constitutes professional
medical practice. In determining whether Defendant’s conduct was
outside the usual course of professional medical practice, you
should consider the testimony you have heard relating to what has
been characterized during the trial as the norms of professional
practice. You should consider the Defendant’s actions as a whole,
the circumstances surrounding them, and the extent of severity of
any violations of professional norms you find the Defendant may
have committed.
With respect to charges of causing the illegal dispensation of
a controlled substance in Counts 4 through 13, the Defendant may
not be convicted if he dispenses or causes to be dispensed controlled
substances in good faith to patients in the usual course of
professional medical practice. Only the lawful acts of a physician,
however, are exempted from prosecution under the law. The
Defendant may not be convicted if he merely made an honest effort
to treat his patients in compliance with an accepted standard of
practical practice.
A controlled substance is dispensed or caused to be dispensed
by a physician in the usual course of his professional medical
practice, and, therefore, lawfully if the substance is dispensed or
caused to be dispensed by him in good faith in medically treating a
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patient. Good faith in this context means good intentions and the
honest exercise of good professional judgment as to the patient’s
medical needs.
Good faith means an observance of conduct in accordance
with what the physician should reasonably believe to be proper
medical practice.
In determining whether the Defendant acted in good faith in
the usual course of professional medical practice, you may consider
all the evidence in the case which relates to that conduct.
United States v. Kohli, Case No. 14-cr-40038-JPG (S.D. Ill.), Dkt. No. 173 at
Page ID #5121-23.
2.
Elements Instruction
The government opposes the elements instruction proposed by Lisa
Hofschulz, arguing that it “adds a mens rea component as a separate element.”
Dkt. No. 115 at 33. The government argues that the defendant’s “proposed
addition of a fourth element is confusing and unnecessary.” Id. And it asserts
that the version of the instruction it has proposed is the version the Seventh
Circuit affirmed in Kohli (and that that version is “the same as provided for in 3
Leonard B. Sand et al., Modern Federal Jury Instructions, Instruction 56-15.”).
Id. at 32. In support of her version, Lisa Hofschulz cites United States v.
Szyman, Case No. 16-cr-95 (E.D. Wis.), Dkt. No. 49 at 6-7. Id.
The instruction that the government proposes is not identical to the
instruction the trial court gave in Kohli (and that the Seventh Circuit said was
“exactly what the statute required to support a conviction”). The government’s
version of the second element—the element regarding prescribing outside of the
usual course of professional medical practice and not for a legitimate
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purpose—omits one word that the Kohli instruction included: “intentionally.”
Dkt. No. 115 at 23. The government proposes the following as the second
element:
that the defendant did so by prescribing the controlled substance(s)
outside of the usual course of professional medical practice and not
for a legitimate medical purpose;
id., while the Kohli court gave the following as the second element:
That the Defendant did so by intentionally prescribing the controlled
substance outside the usual course of professional medical practice,
and not for legitimate medical purpose.
Kohli, Case No. 14-cr-40038-JPG, Dkt. No. 173 at Page ID #5121 (emphasis
added).
It is appropriate to reference the mens rea requirement in the “outside of
the usual course and not for a legitimate medical purpose” element. Section
841(a) states that it is unlawful for anyone to “knowingly and intentionally”
engage in the activities it describes. Both the government and Lisa Hofschulz
include the “knowingly” requirement in the language of the other two elements;
each phrases the instruction as requiring the government to prove that the
defendant “knowingly” distributed or dispensed the controlled substance, and
to prove that the defendant “knew” that the substance was some sort of
controlled substance. The government has not explained why the same should
not be true for the “outside of the usual course and not for a legitimate medical
purpose” element, particularly when the Seventh Circuit has found that a
version of the element that contained the “intentionally” language was “exactly”
what the statute required to support a conviction.
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The Seventh Circuit also has implied in one decision and stated in
another that the “outside of the usual course and not for legitimate medical
purpose” element is subject to the same mens rea requirement as the other two
elements. In Chube II, the court referenced the Ninth Circuit’s decision in
Feingold, in which it stated that to sustain a conviction, the government must
prove
that the practitioner acted with intent to distribute the drugs and
with intent to distribute them outside the course of professional
practice. In other words, the jury must make a finding of intent not
merely with respect to distribution, but also with respect to the
doctor’s intent to act as a pusher rather than a medical professional.
Chube II, 538 F.3d at 697-98 (quoting Feingold, 454 F.3d at 1008). And in
Kohli, the court explicitly stated that to convict a prescriber under §841(a), the
government “must prove that the physician knowingly prescribed a controlled
substance outside the usual course of professional medical practice and
without a legitimate medical purpose” and clarified that the “evidence must
show that the physician not only intentionally distributed drugs but that he
intentionally ‘act[ed] as a pusher rather than a medical professional.’” Kohli,
847 F.3d at 489-90 (citing Chube II, 538 F.3d at 698; Moore, 423 U.S. at 13843).
Teasing out the mens rea requirement and stating it as a fourth, separate
element as Lisa Hofschulz proposes, however, does not make sense. If two of
the elements already contain a mens rea requirement, adding a separate mens
rea requirement after the first three elements would be redundant as to the two
elements that already include that requirement. It makes more sense to include
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the mens rea requirement in the “outside the usual course and without
legitimate medical purpose requirement,” just as it is included in the other two
elements.
The court will give a version of the elements instruction that the Kohli
court gave:
For you to find a defendant guilty of distributing and
dispensing a controlled substance, the government must prove the
following elements beyond a reasonable doubt as to the defendant
and the charge that you are considering:
First, that that defendant knowingly caused to be distributed
or dispensed the controlled substance alleged in the charge you are
considering;
Second, that that defendant did so by intentionally
distributing or dispensing the controlled substance outside the
usual course of professional medical practice, and not for legitimate
medical purpose; and
Third, that that defendant knew that the substance was some
kind of a controlled substance.
If you find from your consideration of all the evidence that the
government has proved each of these elements beyond a reasonable
doubt as to the defendant and the charge you are considering, then
you should find that defendant guilty of that charge. If, on the other
hand, you find from your consideration of all the evidence that the
government has failed to prove any one of these elements beyond a
reasonable doubt as to the defendant and the charge you are
considering, then you should find the defendant not guilty of that
charge.
The government has asked that if the court “believes that [its] proposed
instructions are unclear as to the third element,” the court include three
paragraphs suggested by 3 Leonard B. Sand, et al., Modern Federal Jury
Instructions, Instruction 56-18. Dkt. No. 115 at 33. Lisa Hofschulz included
one of those paragraphs in her proposed good faith instruction:
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In making a medical judgment concerning the right treatment for a
patient, [prescribers] have discretion to choose among a wide range
of available options. Therefore, in determining whether the
defendant acted without a legitimate medical purpose, you should
examine all of the defendant’s actions and the circumstances
surrounding them.
Id. at 33, 35. The Fourth Circuit approved this instruction in Tran Trong
Cuong and Alerre. Because it appears that both the government and the
defense want this instruction, and because it does not contradict Supreme
Court or Seventh Circuit law, the court will include this paragraph.
As to the second paragraph the government seeks—a paragraph
describing all the ways in which a prescriber might act not for a legitimate
medical purpose and outside the course of professional medical practice—the
court will withhold judgment on whether to include it. It is not common for jury
instructions to describe specific illegal behavior. In a traditional §841(a)(1)
prosecution, the court does not instruct the jury that “evidence that a person
talks in code during telephone conversations, has a hidden compartment in his
car, possesses large amounts of unexplained cash, or possesses gram-weight
scales and packaging materials may suggest that the person is illegally selling
controlled substances.” The government is free to make those arguments, and
the defense to rebut them, but it is the jury’s responsibility to decide whether
those actions are outside the course of professional medical practice and not
for a legitimate medical purpose.
3.
Definition of Knowingly
The government has proposed Seventh Circuit pattern instruction 4.10,
while Lisa Hofschulz proposes to add to that instruction the sentence, “In the
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context of this case, this means that the government must prove beyond a
reasonable doubt that Lisa Hofschulz knew that her prescribing of the
controlled substance at issue was both outside the usual course of medical
practice and not for a legitimate medical purpose.” Dkt. No. 115 at 34. The
court will give the Seventh Circuit pattern instruction and will not include the
sentence Lisa Hofshulz has proposed.
The court has determined that it will include the word “intentionally” in
the “outside the usual course of medical practice and not for a legitimate
medical purpose” instruction. The inclusion of that mens rea requirement will
reiterate for the jury that it must find that the defendant intended to distribute
or dispense the controlled substance outside the usual course of medical
practice and not for a legitimate medical purpose. Stating the same as part of
the definition of “knowingly” is redundant. Further, the inclusion of the
language Lisa Hofschulz proposes would render the “knowingly” definition
inapplicable to co-defendant Robert Hofschulz, who also has been charged with
unlawfully prescribing controlled substances.
The court notes that the first paragraph of pattern instruction 4.10
includes alternative language in brackets. That language reads, “In deciding
whether the defendant acted knowingly, you may consider all of the evidence,
including what the defendant did or said.” The William J. Bauer Pattern
Criminal Jury Instructions of the Seventh Circuit (2020 Ed.), Instruction 4.10.
The court usually includes that bracketed language, and in this case, including
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that language comports with the instructions the trial courts gave in Chube II
and Kohli.
4.
Good Faith
a.
Robert Hofschulz’s proposed instruction
Robert Hofshulz has asked the court to give Seventh Circuit Pattern
Instruction 6.11, entitled “Good Faith.” Dkt. No. 115 at 29. The Committee
Comment to this instruction states:
When a defendant is accused of violating a complex and
technical statute, such as a criminal tax statute, the term “willfully”
has been construed to require proof that the defendant acted with
knowledge that his conduct violated a legal duty. Ratzlaf v. United
States, 510 U.S. 135, 144-46 (1994); Cheek v. United States, 498
U.S. 192, 201 (1991); United States v. Wheeler, 540 F.3d 683, 689
(7th Cir. 2008); United States v. Murphy, 469 F.3d 1130, 1138 (7th
Cir. 2006).
Robert Hofshulz argues that because he had no medical training and did
not author any prescriptions, he is entitled to “this discussion in order to treat
the case as a whole fairly and accurately as it applies to him.” Dkt. No. 115 at
29. He cites United States v. Koster, 163 F.3d 1008 (7th Cir. 1998) in support
of his request.
The court will not give Seventh Circuit Pattern Instruction 6.11. The
instruction, as both its title and the Committee Comment make clear, is
designed to be given in cases involving alleged violations of complex technical
statutes, and in cases in which the mens rea requirement is “willful” action.
The grand jury did not charge Robert Hofschulz with violating a criminal tax
statute or some other complex, “technical” statute—it has charged him with
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conspiring to unlawfully distribute and prescribe controlled substances and
unlawfully distributing such substances. The mens rea requirement for
violations of 21 U.S.C. §841 is “knowingly and intentionally,” not “willfully.”
The Koster case does not persuade the court otherwise. Koster involved a
thirty-count indictment charging the defendant with defrauding the Commodity
Credit Corporation. Id. at 1009. As the government points out, the district
court refused to give a good faith instruction in Koster; the Seventh Circuit
affirmed, finding that the mens rea requirements in the instructions regarding
the elements of the crimes with which the defendant had been charged
encompassed a good faith defense, because “[a]n action taken in good faith is
the other side of an action taken knowingly.” Id. at 1012 (citing United States v.
Schwartz, 787 F.2d 257, 265 (7th Cir. 1986)).
b.
Lisa Hofschulz’s proposed instruction
The government has agreed that the court should give a good faith
instruction and as evidenced from the discussion of the governing case law,
such instructions are common in unlawful prescription cases. The parties
dispute the content of the instruction.
The portions of Lisa Hofschulz’s proposed instruction to which the
government most vehemently objects are the following:
If you find that Lisa Hofschulz acted in good faith, that would be a
complete defense for these charges because good faith on the part of
Lisa Hofschulz would be inconsistent with her acting knowingly and
intentionally. A person acts in good faith when he or she has an
honestly held belief of the truth of the statements being given to
them even though the belief turns out to be inaccurate or incorrect.
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Dkt. No. 115 at 35. The next paragraph of the proposed instruction says that
“[g]ood faith is a defense because it is inconsistent with the requirement of the
offenses that she acted knowingly and intentionally.” Id. These portions reflect
a subjective good faith standard; the instruction tells the jury that if Lisa
Hofshulz believed that what she was doing was right for a particular patient,
she could not be found guilty of unlawfully prescribing to such a patient—even
if what she was doing was outside the course of professional medical conduct
and was not for a legitimate medical purpose.
The government argues that the circuit courts that have considered the
good faith defense as it relates to unlawful prescription cases all have
concluded that the good faith defense is subject to an objective, not a
subjective, standard and cites cases from five circuits holding as much. In
2006, the Fourth Circuit agreed with the defendant doctor that good faith
“generally” was relevant to a jury’s determination of whether a doctor acted
outside the bounds of medical practice and with a legitimate medical purpose.
United States v. Hurwitz, 459 F.3d 463, 476 (4th Cir. 2006). But the good faith
instruction the defendant in Hurwitz had proposed defined good faith as
meaning “the doctor acted according to what he believed to be proper medical
practice.” Id. at 478. The Fourth Circuit stated, “This proposed instruction
clearly sets forth a subjective standard, permitting Hurwitz to decide for
himself what constitutes proper medical treatment.” Id. The court concluded
that the instruction was improper, opining that “allowing criminal liability to
turn on whether the defendant-doctor complied with his own idiosyncratic view
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of proper medical practices is inconsistent with the Supreme Court’s decision
in Moore.” Id.
The Fourth Circuit since has reiterated that holding in United States v.
Purpera, 844 F. App’x 614, 626 (4th Cir. 2021), rejecting a proposed good faith
instruction that defined good faith as meaning that “the doctor acted in
accordance with (what he reasonably believed to be) the standard of medical
practice generally recognized and accepted in the United States.” The court
stated that, like the instruction it had rejected in Hurwitz, the Purpera
instruction “permits a doctor ‘to decide for himself what constitutes proper
medical treatment,’ thereby setting forth a standard for good faith that is
entirely subjective.” Id. at 627.
The Purpera court explained that the defendant had asserted that his
proposed instruction was similar to one the Sixth Circuit had approved in
United States v. Voorhies, 663 F.2d 30, 34 (6th Cir. 1981), which “defined good
faith as ‘an observance of conduct in accordance with what the physician
should reasonably believe to be proper medical practice.’” Id. (quoting Voorhies,
663 F.2d at 34). The Fourth Circuit characterized the Voorhies instruction as
“meaningfully different from one that is based on what the physician actually
believed.” Id. It explained that “[a] jury tasked with assessing what a physician
should have believed must apply an objective standard,” while “determining
what a doctor actually believed requires a jury to assess the doctor’s subjective
point of view.” Id.
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The Eleventh Circuit reached the same conclusion in United States v.
Williams, 445 F.3d 1302, 1309 (11th Cir. 2006) and United States v. Merrill,
513 F.3d 1293 (11th Cir. 2008). In Merrill, the defendant had proposed an
instruction that focused on the defendant doctor’s subjective intent; in
rejecting the defendant’s argument that the district court should have given his
instruction, the Eleventh Circuit stated:
We have already indicated that a good faith instruction focusing on
the physician’s subjective intent, like the one proposed by Merill,
“fails to introduce any objective standard by which a physician’s
prescribing behavior can be judged.” United States v. Williams, 445
F.3d 1302, 1309 (11th Cir. 2006), abrogated on other grounds,
United States v. Lewis, 492 F.3d 1219 (11th Cir. 2007) (en banc).
The appropriate focus is not on the subjective intent of the doctor,
but rather it rests on whether the physician prescribes medicine “in
accordance with a standard of medical practice generally recognized
and accepted in the United States.” Id. (quoting United States v.
Moore, 423 U.S. 122, 139 . . . (1975)). In Williams, we affirmed a trial
court’s instruction like the one given here which focuses on whether
the doctor acted in accordance with a generally-accepted standard
of medical practice. Therefore, we find that the district court neither
committed plain error nor abused its discretion in not giving Merill’s
proposed jury instruction.
Merrill, 513 F.3d at 1306.
In United States v. Wexler, 522 F.3d 194 (2d Cir. 2008), the defendant
asked the trial court to include language in the instructions regarding “good
intentions,” arguing, “If you have good intentions, it doesn’t matter if you made
a mistake. It only matters if you didn’t have good intentions.” Wexler, 522 F.3d
at 205. The district court declined to include the language the defendant
requested, opining that “good intentions is too loosey goosey a formulation and
will lead to juror confusion.” Id. The Second Circuit found that the district
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court did not err in refusing to include the requested language, stating in part
that “the inclusion of a good-intentions component of good faith may very well
contradict the objective standard of reasonableness required for a finding of
good faith.” Id. at 206.
In United States v. Smith, 573 F.3d 639, 647 (8th Cir. 2009), the
defendant argued that the language of 21 C.F.R. §1306.04—requiring 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” (emphasis added)—meant that “‘his professional practice’ [was] to be
judged with reference to the particular practices of the issuing doctor, as
opposed to generally accepted medical practices.” The Eighth Circuit disagreed,
finding that the physician’s practice “must still comport with the tenants of
medical professionalism.” Id. at 648. The court stated, referencing its own
precedent, that “[w]e are . . . not at liberty to eliminate the requirement that an
issuing practitioner’s practice be objectively ‘professional,’ even assuming that
we are required by the regulation to consider ‘his’ particular practice.” Id.
(citing Moore, 423 U.S. at 140-43; referencing United States v. Katz, 445 F.3d
1023 (8th Cir. 2006)). It concluded that it was “not improper to measure the
‘usual course of professional practice’ under § 841(a)(1) and § 1306.04 with
reference to generally recognized and accepted medical practices and not a
doctor’s self-defined particular practice,” noting that the defendant’s proposed
interpretation “would allow an individual doctor to define the parameters of his
or her practice and effectively shield the practitioner from criminal liability
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despite the fact that the practitioner may be acting as nothing more than a
‘large-scale pusher.’” Id. at 648-49 (citing Moore, 423 U.S. at 143).
A defendant had put forward this same interpretation of §1306.04(a)
years earlier in United States v. Norris, 780 F.2d 1207 (5th Cir. 1986). The
Fifth Circuit—as would the Eighth Circuit twenty years later—rejected the
argument, succinctly stating that “[o]ne person’s treatment methods do not
alone constitute a medical practice,” and finding that the trial court “correctly
rejected Norris’ proposed charge premised on a theory that a standard medical
practice may be based on an entirely subjective standard.” Id. at 1209.
In Purpera, the Fourth Circuit discussed the Sixth Circuit’s ruling in
Voorhies. Twenty-eight years later, the Sixth Circuit reiterated its ruling from
Voorhies. In United States v. Godofsky, 943 F.3d 1011, 1015 (6th Cir. 2019),
the defendant requested a good faith instruction that defined good faith as
meaning that “the defendant acted in accordance with what he reasonably
believed to be proper medical practice.” Id. at 1016. The trial court refused to
give that instruction—in fact, refused to give a good faith instruction at all. Id.
at 1017. The Sixth Circuit characterized the defendant’s argument in support
of the instruction as an argument that “even though he knowingly an
intentionally violated professional medical practices and prescribed oxycodone
for no legitimate medical purpose (as the jury found), he cannot be convicted
because he personally believes that such unprofessional and illegitimate
actions were nonetheless beneficial to his patients.” Id. at 1026. The Sixth
Circuit rejected that argument, stating “that is not the law.” Id.
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This court agrees with these circuit courts—whether a defendant charged
with unlawfully prescribing controlled substances acted in good faith must be
determined using an objective standard, not a subjective one. The subjective
standard Lisa Hofschulz proposes does not comport with Moore, and as some
of the courts above have noted, it would nullify §1306.04(a) by allowing each
individual prescriber to decide the “course of professional medical practice.”
More broadly, the instructions proposed by the government contain, for
the most part, language that either the Supreme Court or the Seventh Circuit
has found does not constitute error. The court recounts the government’s
instructions below, and where applicable, identifies the source of the language;
the government’s proposed language is italicized and the matching language
from Supreme Court or Seventh Circuit case law is in bold.
Outside the Usual Course of Professional Medical Practice and Not for a
Legitimate Purpose (Dkt. No. 115 at 24)
Federal law authorizes registered medical practitioners to dispense
a controlled substance by issuing a lawful prescription.
“Federal law authorizes a licensed physician to prescribe
controlled substances of the kinds charged in the indictment, if the
drug is prescribed in the course of the physician’s professional
practice.” Green, 511 F.2d at 1071 n.22.
Registered practitioners are exempt from criminal liability if they
distribute or dispense controlled substances for a legitimate purpose
while acting in the usual course of professional practice. A registered
practitioner violates Section 841(a)(1) of Title 21 of the United States
Code if the practitioner distributes or dispenses a controlled
substance without a legitimate medical purpose and outside the usual
course of standard medical practice.
[The court could find no matching language for this portion of the
instruction in any of the cases discussed above.]
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A prescriber’s own treatment methods do not themselves establish
what constitutes professional medical practice. In determining
whether the defendant’s conduct was outside the usual course of
professional medical practice, you should consider the testimony you
have heard relating to what has been characterized during the trial
as the norms of professional practice. You should consider the
defendant’s actions as a whole, the circumstances surrounding them,
and the extent of severity of any violations of professional norms you
find the defendant may have committed.
“A physician’s own treatment methods do not themselves
establish what constitutes professional medical practice. In
determining whether Defendant’s conduct was outside the
usual course of professional medical practice, you should
consider the testimony you have heard relating to what has
been characterized during the trial as the norms of professional
practice. You should consider the Defendant’s actions as a
whole, the circumstances surrounding them, and the extent of
severity of any violations of professional norms you find the
Defendant may have committed.” Kohli, Case No. 14-cr-40038JPG (S.D. Ill.), Dkt. No. 173 at Page ID #5122. See also, Bek, 493
F.3d at 798-99 (“[i]n determining whether the defendant’s
conduct was within the bounds of professional medical practice,
you should consider the testimony you have heard relating to
what has been characterized during trial as the ‘norms’ of
professional practice.”).
Good Faith in the Usual Course of Professional Medical Practice (Dkt. No. 115
at 25)
The Defendant may not be convicted if she dispenses or causes to be
dispensed controlled substances in good faith in accordance with the
standards of professional medical practice generally recognized and
accepted in the United States.
“[T]he Defendant may not be convicted if he dispenses or causes
to be dispensed controlled substances in good faith to patients
in the usual course of professional medical practice.” Kohli, Case
No. 14-cr-40038-JPG (S.D. Ill.), Dkt. No. 173 at Page ID #5123.
The jury must find “beyond a reasonable doubt that a physician,
who knowingly or intentionally did dispense or distribute
methadone) by prescription, did so other than in good faith for
detoxification in the usual course of a professional practice and in
accordance with a standard of medical practice generally
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recognized and accepted in the United States.” Moore, 423 U.S.
at 138-39.
Only the lawful acts of a prescriber, however, are exempted from
prosecution under the law.
“Only the lawful acts of a physician, however, are exempted from
prosecution under the law.” Kohli, Case No. 14-cr-40038-JPG
(S.D. Ill.), Dkt. No. 173 at Page ID #5123.
Good faith in this context means an observance of conduct in
accordance with what the prescriber should reasonably believe to be
proper medical practice defined by generally recognized and accepted
standards of professional medical practice.
“Good faith means an observance of conduct in accordance with
what the physician should reasonably believe to be proper
medical care.” Chube II, 538 F.3d at 699.
In determining whether the defendant acted in good faith in the usual
course of professional medical practice, you may consider all of the
evidence in the case which relates to that conduct.
“In determining whether the Defendant acted in good faith in
the usual course of professional medical practice, you may
consider all the evidence in the case which relates to that
conduct.” Kohli, Case No. 14-cr-38-JPG (S.D. Ill.), Dkt. No. 173 at
Page ID #5123.
While some of the language in the government’s proposed instructions
may be duplicative of the elements instruction, the government’s proposed
instructions generally comport with the law in this circuit. As far as the court
can tell, neither the Supreme Court nor the Seventh Circuit has addressed the
instruction proposed by Lisa Hofschulz, and as the court has explained, much
of that instruction incorrectly states the law. The court will not give the good
faith instruction proposed by Lisa Hofschulz.
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5.
Standard of Care
The discussion of the governing law reveals that in some unlawful
prescription cases, events at trial prompted the defendants to argue on appeal
that the jury might have thought it was being called upon to decide whether
the defendant was liable for civil malpractice, rather than for criminal conduct.
In at least one case, the language used by the government’s expert was the
basis for that argument. In another, language used by the court at a pretrial
conference gave rise to the concern. Perhaps the language used by the lawyers
in questioning and arguing gave rise to the concern.
Under Wisconsin law, a civil claim for medical malpractice “requires the
following four elements: (1) a breach of (2) a duty owed (3) that results in (4) an
injury or injuries, or damages. . . . In short, a claim for medical malpractice
requires a negligent act or omission that causes an injury.” Paul v. Skemp, 242
Wis. 2d 507, 520 (Wis. 2001).
As required by §1306.04(a), the elements instruction the court has
agreed to give requires the government to prove beyond a reasonable doubt
that the defendant distributed or dispensed controlled substances “outside the
usual course of professional practice and not for a legitimate medical purpose.”
It does not mention breach or duty or injury or damages. The cases described
in this decision did not involve defendants who made a one-time mistake; they
involve defendants who repeatedly prescribed medication without first
performing any significant examination or evaluation, based on what the
patient requested, so frequently that experts testified it would not have
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occurred in the usual course of professional practice. They involve defendants
who repeatedly dispensed medications to known addicts and at such prices
that experts testified the prescriptions could not have been for legitimate
medical purposes. Assuming the evidence presented at trial in this case is
similar, the court agrees with the government that there is no reason or
rationale for instructing a criminal jury about malpractice. While the notion of
“usual course of practice” brings to a lawyer’s mind the similar concept of
“standard of care,” a phrase common in malpractice cases, the court suspects
that non-lawyer jurors are less likely to think that way, particularly if they are
instructed at the beginning and the end of the trial that the government must
prove all the elements of the offense beyond a reasonable doubt.
At this point, the court does not plan to give Lisa Hofschulz’s proposed
instruction titled “Not Malpractice.” Dkt. No. 115 at 39. If, however, witnesses
or parties use language at trial that implies or states that the jury may find the
defendants guilty if they were negligent, the court will reconsider this ruling.
D.
Conclusion
The court PRELIMINARILY ORDERS that it will give the instructions
proposed by the government, and not the instructions proposed by Robert
Hofschulz and Lisa Hofschulz. Dkt. No. 115 at 20-39.
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The court ORDERS that this ruling is subject to review and revision if
the evidence at trial requires it.
Dated in Milwaukee, Wisconsin this 12th day of July, 2021.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
Chief United States District Judge
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
UNITED STATES OF AMERICA,
Plaintiff,
v.
Case No. 18-cr-145-pp
LISA HOFSCHULZ,
and ROBERT HOFSCHULZ,
Defendants.
______________________________________________________________________________
ORDER DENYING ROBERT HOFSCHULZ’S MOTION FOR ACQUITTAL
(DKT. NO. 173); DENYING LISA HOFSCHULZ’S MOTION FOR NEW TRIAL
(DKT. NO. 183) AND GRANTING THE GOVERNMENT’S AMENDED MOTION
FOR FORFEITURE OF PROPERTY (DKT. NO. 182)
______________________________________________________________________________
The grand jury charged the defendants with conspiracy to sell, distribute
or dispense controlled substances outside of a professional medical practice
and not for a legitimate purpose; it also charged Lisa Hofschulz with thirteen
substantive counts of distributing and dispensing controlled substances
outside of a professional medical practice and not for a legitimate medical
purpose and Robert Hofschulz with four substantive counts of that same
offense. Dkt. No. 29. Finally, it charged Lisa Hofschulz with knowingly and
intentionally distributing Oxycodone and morphine outside of a professional
practice and not for a legitimate purpose, alleging that this act resulted in the
death of F.E. Id. at 8. On August 13, 2021, after a two-week trial, a jury found
the defendants guilty on all counts. Dkt. No. 168.
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On September 13, 2021, defendant Robert Hofschulz filed a motion for
judgment of acquittal. Dkt. No. 173. On October 20, 2021, defendant Lisa
Hofschulz filed a motion for new trial and a motion for judgment of acquittal.
Dkt. No. 183. That same day—October 20, 2021—the government filed an
amended motion for forfeiture of property as to both defendants. Dkt. No. 182.
I.
Procedural Background
On June 26, 2018, the grand jury returned a fourteen-count indictment
charging Lisa and Robert Hofschulz with distributing and conspiring to
distribute controlled substances outside of a professional medical practice and
not for a legitimate medical purpose. Dkt. No. 1. The indictment included one
count of conspiracy to distribute and thirteen counts of distribution under 21
U.S.C. 841(a)(1). Id. Robert Hofschulz was charged in four of the distribution
counts, while Lisa Hofschulz was charged in all thirteen. Id. The defendants
were not detained pending trial. The indictment included a two-paragraph
forfeiture notice. Id. at 8.
On February 26, 2019, the grand jury returned a superseding
indictment. Dkt. No. 29. The superseding indictment repeated the fourteen
charges from the original indictment and added a charge against Lisa
Hofschulz for distribution of a controlled substance resulting in the death of
patient F. E. Dkt. No. 29 at 8. The superseding indictment included an
identical forfeiture notice as the original indictment. Id. at 9.
On April 12, 2019, Lisa Hofschulz filed a motion to suppress evidence of
the toxicology report, autopsy report, death certificate and any other evidence
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regarding the cause of F.E.’s death. Dkt. No. 33. Magistrate Judge William E.
Duffin issued a report recommending that this court deny that motion. Dkt.
No. 37. Lisa Hofschulz timely filed an objection to the recommendation. Dkt.
No. 42. On July 19, 2019, this court overruled Lisa Hofschulz’s objections,
adopted Judge Duffin’s recommendation and denied Lisa Hofschulz’s motion to
suppress. Dkt. No. 44.
On August 2, 2019, one of Lisa Hofschulz’s attorneys, Ronald W.
Chapman II, filed a motion to withdraw, dkt. no. 45, which the court granted,
dkt. no. 48. On September 18, 2019, Lisa Hofschulz filed a motion for
continuance, asking that the dates for the final pretrial conference and the trial
be pushed back ninety days. Dkt. No. 58. The court granted the motion,
scheduling the final pretrial conference for January 31, 2020 and the trial for
February 18, 2020. Dkt. No. 59.
On September 27, 2019, Lisa Hofschulz filed a motion to substitute as
her counsel Attorneys Beau Brindley and Michael Thompson.1 Dkt. No. 60. The
government responded it did not object to the substitution so long as it did not
impact the trial date. Dkt. No. 61. Attorney Brindley then filed a reply, stating
that he was scheduled to be in trial in the Northern District of Illinois on
February 18, 2020 and thus could not participate in Lisa Hofschulz’s trial on
the date the court had scheduled it. Dkt. No. 62. The court scheduled an
October 15, 2019 hearing on the motion to substitute counsel. Lisa Hofschulz
She filed this motion only nine days after the court, over the government’s
vehement objections, had agreed to adjourn the trial to February 18, 2020 to
allow the defense to resolve issues with an expert witness. Dkt. No. 64 at 3.
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then filed a motion to continue that hearing, explaining that her attorney was
scheduled to begin a trial in Cook County, Illinois on October 15, 2019. Dkt.
No. 63. The court canceled the hearing but emphasized that it was not going to
adjourn the February 2020 trial date; the court withheld ruling on the motion
to substitute counsel to allow Lisa Hofschulz to determine whether she still
wished to retain an attorney who had stated that he was not available on the
scheduled trial date. Dkt. No 64. On October 21, 2019, Lisa Hofschulz filed a
status report confirming that attorney Brindley was her counsel of choice and
stating that Attorney Brindley had confirmed that “if necessary, he will be
ready and available to try this case on February 18, 2020 as scheduled.” Dkt.
No. 65. The court granted the motion to substitute the following day. Dkt. No.
66.
As the February 18, 2020 trial date approached, the government began
filing trial documents. On December 20, 2019, the government filed its notice
of expert disclosures, listing Dr. Timothy King, Anesthesiologist; Dr. Brian
Linert, Forensic Pathologist; Anthony Baize, Inspector General for the
Wisconsin Department of Health and Human Services; and Laura Reid,
Diversion Investigator for the United States Drug Enforcement Administration
(DEA). Dkt. No. 69. On January 17, 2020, the government filed its motions in
limine. Dkt. No. 70. A week later, the government filed its pretrial report. Dkt.
No. 71. Neither defendant filed anything.
On January 30, 2020—the day before the January 31, 2020 final pretrial
conference and with the trial set for February 18, 2020—Lisa Hofschulz filed a
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motion to continue the trial. Dkt. No. 72. In the eight-page motion, Attorney
Beau Brindley explained that several trials had been rescheduled in other
districts in ways he could not have foreseen when advised Lisa Hofschulz that
he could be ready for the February 2020 trial. Id. at 1-3. He also explained that
in the midst of these scheduling changes, his wife’s emotional support animal
had suffered a series of health conditions that culminated in his passing away,
negatively impacting Attorney Brindley’s wife’s emotional state. Id. at 3-5. He
concluded that the combination of events—the trial preparations for the other
cases, the trial schedule and the issues in his personal life—had left him
emotionally and physically exhausted; he stated that his wife needed him and
that he could not be prepared for trial in this case by February 18, 2020. Id. at
6-8.
The court held the pretrial conference the next day, at which time the
government opposed the motion to adjourn. Dkt. No. 78 at 1. Attorney Brindley
responded that he needed only a short adjournment, and advised the court
that “if the court forced him to go to trial February 18, he would have to stand
up and state that he was unprepared to proceed.” Id. The court denied the
defendant’s motion to continue trial that same day and continued the final
pretrial conference to February 14, 2020 to address the motions in limine. Dkt.
No. 78.
On February 3, 2020, Lisa Hofschulz filed her proposed voir dire and jury
instructions. Dkt. No. 75. The court docketed its proposed draft v
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