Petition for Writ of Certiorari — Mark Murphy and Jennifer Murphy, Petitioners v. United States

No.

In the Supreme Court of the United States

MARK MURPHY AND JENNIFER MURPHY, PETITIONERS,

v.

UNITED STATES

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

EDWARD M. YARBROUGH

W. JUSTIN ADAMS

SPENCER FANE LLP

511 Union St., Suite 1000

Nashville, TN 37219

(615) 238-6300

Counsel for Mark Murphy

CLAYTON R. TARTT

TARTT LAW LLC

2314 University Blvd

Tuscaloosa, AL 35401

(205) 614-3994

Counsel for Jennifer

Murphy

ANDREW T. TUTT

Counsel of Record

ALEX E. SIRIO

JOHN V. HOOVER

ARNOLD & PORTER

KAYE SCHOLER LLP

601 Massachusetts Ave., NW

Washington, DC 20001

(202) 942-5000

andrew.tutt@arnoldporter.com

Counsel for Mark Murphy and

Jennifer Murphy

QUESTION PRESENTED

21 U.S.C. § 846 makes it a crime to “conspire[] to

commit any offense defined in this subchapter.”

Prosecutors frequently seek to prove a § 846 violation—

as they did in this case—by proving that the defendants

conspired to violate 21 U.S.C. § 841, which makes it a

federal crime, “[e]xcept as authorized[,] . . . for any person

knowingly or intentionally . . . to manufacture, distribute,

or dispense . . . a controlled substance.” 84 Stat. 1260, 21

U. S. C. § 841(a).

A core tenet of conspiracy law is that “the failure of

the trial court to instruct the jury on the elements of the

substantive crimes constituting the objects of the charged

conspiracy” is a “serious error.” United States v.

Martinez, 496 F.2d 664, 669 (5th Cir. 1974); accord United

States v. Alghazouli, 517 F.3d 1179, 1189 (9th Cir. 2008).

And in the Fourth and Tenth Circuits that is the rule for

§ 846 conspiracies. They hold that a § 846 conviction on a

§ 841 theory requires the jury to be correctly instructed

as to the elements required to violate § 841. But the Fifth

and Eleventh Circuits do not require that.

In the decision below, the Eleventh Circuit, in an

unpublished opinion, for at least the fourth time, refused

to hold that a person cannot be convicted under 21 U.S.C.

§ 846 for conspiring to violate § 841 unless the jury is

correctly instructed as to the elements of § 841. Judge

Jordan concurred. Eleventh Circuit precedent required

him to vote to affirm, he explained, but “writing on a clean

slate” he “would find the Tenth Circuit’s contrary decision

in United States v. Kahn, 58 F.4th 1308, 1311 (10th Cir.

2023), more persuasive.”

The question presented is:

Whether, in a § 846 prosecution for conspiracy to

violate § 841, a trial court errs if it fails to correctly

instruct the jury on the elements of the § 841 offense.

(i)

RELATED PROCEEDINGS

U.S. District Court for the Northern District of Alabama

(N.D. Ala.):

United States v. Murphy, Nos. 5:20-cr-291-LSCSGC-1; 5:20-cr-291-LSC-SGC-2 (Feb. 17, 2023)

(denying motion for new trial)

U.S. Court of Appeals for the Eleventh Circuit (11th Cir.):

United States v. Murphy, No. 23-10781 (Nov. 21,

2024) (affirming district court)

United States v. Murphy, No. 23-10781 (Mar. 17,

2025) (denying rehearing en banc and panel

rehearing)

Supreme Court of the United States (U.S.):

Murphy v. United States, No. 24A968 (Apr. 10, 2025)

(granting application for extension of time to file

petition for a writ of certiorari)

(ii)

TABLE OF CONTENTS

Page

Opinions Below ...................................................................... 1

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

Statutory Provisions Involved ............................................. 1

Statement of the Case ........................................................... 1

Reasons for Granting the Petition ...................................... 9

I. There Is a Clear and Intractable Conflict Over

a Significant Question.................................................... 9

II. The Decision Below is Wrong .................................... 18

III. The Question Presented Is Important and

Warrants Review In This Case .................................. 23

Conclusion ............................................................................ 27

Appendix A: Eleventh Circuit Court of Appeals Opinion

(Nov. 21, 2024) ............................................. 1a

Appendix B: District Court Decision

(Feb. 17, 2023) ........................................... 36a

Appendix C: Eleventh Circuit Court of Appeals Order

Denying Rehearing and Rehearing En

Banc (Mar. 17, 2025) ................................. 68a

Appendix D: Amended Judgment in a Criminal Case

for Mark Murphy (Mar. 8, 2023) ............ 69a

Appendix E: Amended Judgment in a Criminal Case

for Jennifer Murphy (Mar. 8, 2023) ....... 79a

Appendix F: 21 U.S.C. § 841 ........................................... 89a

Appendix G: 21 U.S.C. § 846 ......................................... 106a

Appendix H: 21 C.F.R. § 1306.04.................................. 107a

Appendix I: Jury Instructions (Feb. 25, 2022) ......... 109a

(iii)

TABLE OF AUTHORITIES

Cases

Page(s)

Korcz v. United States,

No. 2:23-cv-08002, 2023 WL 2998483

(N.D. Ala. Apr. 18, 2023)............................................ 13, 24

Okechuku v. Salmonson,

No. 5:22CV135, 2023 WL 5519362

(E.D. Tex. Aug. 1, 2023) ..................................................... 2

Okechuku v. United States,

No. 5:22CV135, 2023 WL 5510281

(E.D. Tex. Aug. 25, 2023) ................................................... 2

Qureshi v. United States,

No. 24-900, 2025 WL 889184

(U.S. Mar. 24, 2025) ............................................................ 2

Ruan v. United States,

597 U.S. 450 (2022) ....................................... 6, 7, 10, 24, 25

United States v. Alghazouli,

517 F.3d 1179 (9th Cir. 2008) .......................................... 18

United States v. Bauer,

82 F.4th 522 (6th Cir. 2023) ............................................. 12

United States v. Calderon,

127 F.3d 1314 (11th Cir. 1997) ........................................ 22

United States v. Campbell,

135 F.4th 376 (6th Cir. 2025) ..................................... 12, 13

United States v. Duldulao,

87 F.4th 1239 (11th Cir. 2023) ..................... 2, 8, 15, 16, 21

United States v. Gallagher,

576 F.2d 1028 (3d Cir. 1978) ............................................ 18

United States v. Howard,

28 F.4th 180 (11th Cir. 2022) ........................................... 22

United States v. Kahn,

58 F.4th 1308 (10th Cir. 2023) ................................. 1, 8, 11

(iv)

v

Cases—Continued

Page(s)

United States v. Martinez,

496 F.2d 664 (5th Cir. 1974) .............................................. 3

United States v. Mencia,

No. 18-13967, 2022 WL 17336503

(11th Cir. Nov. 30, 2022) ........................................ 2, 14, 21

United States v. Murphy,

No. 23-10781, 2024 WL 4847755

(11th Cir. Nov. 21, 2024) .................................................... 2

United States v. Naum,

134 F.4th 234 (4th Cir. 2025) ..................................... 11, 12

United States v. Pinckney,

85 F.3d 4 (2d Cir. 1996) ................................................ 3, 18

United States v. Qureshi,

121 F.4th 1095 (5th Cir. 2024) ......................... 2, 16, 17, 21

United States v. Ruan,

56 F.4th 1291 (11th Cir.) ................................ 2, 7, 8, 15, 21

United States v. Sawyer,

85 F.3d 713 (1st Cir. 1996) ............................................... 18

Xiulu Ruan & John Patrick Couch v.

United States, 144 S. Ct. 377 (2023) ................................. 2

Statutes and Regulations

8 U.S.C. § 1324(a)(1)(A)(v)(I) ............................................. 22

18 U.S.C.

§ 2 .......................................................................................... 5

§ 286 .................................................................................... 22

§ 371 .......................................................................... 4, 22, 24

§ 922(g) ............................................................................... 24

§ 1347 .................................................................................... 4

§ 1349 .............................................................................. 4, 22

§ 1956(h) ............................................................................. 22

vi

Statutes and Regulations—Continued

Page(s)

21 U.S.C.

§ 841 ..................................... 1-3, 5-7, 9-16, 18-19, 22, 24-26

§ 841(a) ................................................................................. 6

§ 841(a)(1) ...................................................................... 5, 11

§ 841(b)(1)(C)....................................................................... 5

§ 846 ........................................ 1-10, 11-17, 19-20, 22, 24-26

§ 963 .................................................................................... 22

26 U.S.C. § 7206(1) ................................................................ 5

28 U.S.C. § 1254(1) ................................................................ 1

42 U.S.C. § 1320a-7b(b)(1) .................................................... 5

21 C.F.R. § 1306.04(a) (2021) ........................................... 6, 7

Other Authorities

1st Cir. Pattern Jury Instrs., Criminal, 4.18.317(1)

(rev. 2015) .......................................................................... 19

3d Cir. Pattern Jury Instrs., Criminal, 6.18.371A

Comment (rev. 2018) ........................................................ 19

3d Cir. Pattern Jury Instrs., Criminal, 6.21.846B

(rev. 2018) .......................................................................... 19

5th Cir. Pattern Jury Instrs., Criminal, 2.97

(2024 ed.) ............................................................................ 19

6th Cir. Pattern Jury Instrs., Criminal, Use Note

for 14.05 (rev. 2021) .......................................................... 19

11th Cir. Pattern Jury Instrs., Criminal, (2024 ed.) ....... 22

Dep’t of Justice Bureau of Justice Statistics,

Federal Criminal Case Processing Statistics

Data Tool, http://bit.ly/3TJEVeJ ................................... 24

Order Den. Pet. Reh’g, United States v. Duldulao,

No 20-13973 (11th Cir. Mar. 1, 2024) ............................. 16

Order Den. Pet. Reh’g, United States v. Mencia,

No. 18-13967, (11th Cir. Jan. 24, 2023) .......................... 14

vii

Other Authorities—Continued

Page(s)

Order Den. Pet. Reh’g, United States v. Murphy,

No. 23-10781 (11th Cir. Mar. 17, 2025) .......................... 16

Order Den. Pet. Reh’g, United States v. Ruan,

No 17-12653 (11th Cir. Mar. 2, 2023) ............................. 15

Ronald W. Chapman II & Matthew Pelcowitz,

Defending Doctors in a Post-Ruan World: the

Battle Over Jury Instructions,

49 Champion 42 (Mar. 25, 2025) ....................................... 2

Third Circuit’s Model Jury Instruction for

Conspiracy (6.18.371A) .................................................... 18

PETITION FOR A WRIT OF CERTIORARI

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Eleventh Circuit (Pet. App. 1a-35a) is unpublished but

available at 2024 WL 4847755. The decision of the United

States District Court for the Northern District of

Alabama (Pet. App. 36a-67a) is unpublished but available

at 2023 WL 2090279.

JURISDICTION

The judgment of the court of appeals was entered on

November 21, 2024. The Eleventh Circuit denied a

petition for rehearing en banc on March 17, 2025. On April

11, 2025, Justice Thomas granted petitioner an extension

of time to file the petition to July 15, 2025. The jurisdiction

of this Court is invoked under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

The relevant statutory provisions are reproduced in

the petition appendix at Pet. App. 89a-106a.

STATEMENT OF THE CASE

This case presents a recognized conflict over an

important question of federal criminal law: Whether, in a

§ 846 prosecution for conspiracy to violate § 841, a trial

court errs if it fails to correctly instruct the jury on the

elements of that offense.

In the decision below, the Eleventh Circuit held that

a person may be convicted under 21 U.S.C. § 846 for

conspiracy to violate 21 U.S.C. § 841 even though the jury

was concededly incorrectly instructed as to the elements

of 21 U.S.C. § 841. Pet. App. 17a-20a. In doing so, the court

acknowledged it was splitting with the Tenth Circuit

which has held that an incorrect instruction as to the

elements of the underlying § 841 offense is error requiring

vacatur of the 21 U.S.C. § 846 conviction. United States v.

(1)

2

Kahn, 58 F.4th 1308, 1311, 1321 (10th Cir. 2023). This

marks at least the fourth time the Eleventh Circuit has

held that a jury can convict a defendant of violating 21

U.S.C. § 846 even though the jury has been incorrectly

instructed regarding the elements needed to violate 21

U.S.C. § 841.1 The Fifth Circuit shares this position. See

United States v. Qureshi, 121 F.4th 1095, 1102-05 (5th Cir.

2024), cert. denied, No. 24-900, 2025 WL 889184 (U.S. Mar.

24, 2025).

This case merits the Court’s review. The conflict is

clear, acknowledged, and entrenched. Courts and

commentators have recognized it.2 Two courts of appeals

have ruled that a 21 U.S.C. § 846 conviction can be upheld

notwithstanding that the jury was incorrectly instructed

as to the elements necessary to violate 21 U.S.C. § 841,

while the Fourth and Tenth Circuits have held the

opposite. The Eleventh Circuit has doubled down on its

position at least four times, rejecting petitions for

rehearing en banc on all four occasions. Further

percolation is no longer useful: the arguments have been

fully aired, and there is no probability this conflict will

resolve on its own.

United States v. Murphy, No. 23-10781, 2024 WL 4847755, at *8

(11th Cir. Nov. 21, 2024); United States v. Duldulao, 87 F.4th 1239,

1254 (11th Cir. 2023); United States v. Ruan, 56 F.4th 1291, 1299

(11th Cir.) (Ruan III), cert. denied sub nom. Xiulu Ruan & John

Patrick Couch v. United States, 144 S. Ct. 377 (2023); United States

v. Mencia, No. 18-13967, 2022 WL 17336503, at *14 (11th Cir. Nov.

30, 2022).

2

E.g., Ronald W. Chapman II & Matthew Pelcowitz, Defending

Doctors in a Post-Ruan World: the Battle Over Jury Instructions,

49 Champion 42, 43 (Mar. 25, 2025) (“A circuit split on remand,

already?”); Duldulao, 87 F.4th at 1253; Murphy, 2024 WL 4847755,

at *8; see also Okechuku v. Salmonson, No. 5:22CV135, 2023 WL

5519362 (E.D. Tex. Aug. 1, 2023), report and recommendation

adopted sub nom. Okechuku v. United States, No. 5:22CV135, 2023

WL 5510281 (E.D. Tex. Aug. 25, 2023).

1

3

The justification used to uphold these convictions

strikes at the most basic principle of conspiracy law.

Perhaps no principle of conspiracy law is more essential

or more foundational than that the jury be instructed on

the elements of the offense that is the object of the

conspiracy. United States v. Martinez, 496 F.2d 664, 669

(5th Cir. 1974); accord United States v. Pinckney, 85 F.3d

4, 8 (2d Cir. 1996). The failure to correctly instruct on the

elements of the substantive offense is “serious error.”

Martinez, 496 F.2d at 669.

Yet, the Fifth and Eleventh Circuits have reached the

remarkable holding that the failure to correctly instruct

the jury as to the elements of § 841 does not automatically

mean that the § 846 instructions were also erroneous.

They reason that where—as here—the error is in the

§ 841 offense’s mens rea instruction, the § 846

conspiracy’s independent mens rea instruction cures the

error. But that is false. As explained below, pp. 18-22,

infra, a jury cannot find that someone conspired to

commit an offense when the jury does not know the

elements required to commit it. That is true whether the

error is in the underlying offense’s mens rea or its conduct

elements. Yet now in two circuits, a finding by a jury that

§ 846 conspirators knew their conspiracy had an “unlawful

object” is sufficient to overcome a failure to correctly

instruct the jury as to the underlying § 841 offense’s

elements.

The question presented is of considerable legal and

practical importance, as a matter of § 846 law and as a

matter of federal criminal law more broadly. The question

of whether a conspiracy instruction can be lawful even

where it fails to correctly instruct the jury as to the

elements needed to commit the underlying substantive

offense is a question of general importance to the law of

conspiracy. Because this case presents an ideal vehicle for

4

addressing this fundamental question of federal law, the

petition should be granted.

A. Petitioner Dr. Mark Murphy was a licensed

physician who specialized in pain management.

Pet. App. 2a. Alongside his wife and business partner,

petitioner Jennifer Murphy, he operated North Alabama

Pain Services (NAPS), a clinic with locations in Decatur

and Madison, Alabama. Pet. App. 2a. NAPS patients

suffered from chronic pain issues. Pet. App. 2a. To

manage their pain, Dr. Murphy prescribed opioids,

including hydrocodone, oxycodone, fentanyl, and

morphine. Pet. App. 2a. Dr. Murphy had a very busy

practice and was NAPS’s sole doctor. Pet. App. 3a, 6a.

Mrs. Murphy managed NAPS’s day-to-day operations.

Pet. App. 6a.

B. A federal grand jury indicted petitioners, along

with four codefendants. Pet. App. 8a. Two codefendants

pled guilty to healthcare fraud conspiracy. Pet. App. 8a.

Petitioners, along with their son and Dr. Murphy’s

brother, proceeded to trial. Pet. App. 8a. After an eightday trial, the jury convicted petitioners and acquitted the

son and brother. Pet. App. 8a.

Petitioners were convicted on the following charges

(Pet. App. 8a):

• 21 U.S.C. § 846 (Count 1): conspiring to unlawfully

distribute fentanyl, oxycodone, and hydrocodone;

• 18 U.S.C. § 1349 (Count 5): conspiring to commit

healthcare fraud;

• 18 U.S.C. § 1347 (Counts 6 to 10): five counts of

healthcare fraud;

• 18 U.S.C. § 371 (Count 11): conspiring to defraud

the United States by soliciting and receiving

kickbacks; and

5

•

42 U.S.C. § 1320a-7b(b)(1) & 18 U.S.C. § 2 (Count

22): soliciting or receiving kickbacks involving a

federal healthcare program.

Dr. Murphy was also convicted of a drug distribution

offense, in violation of 21 U.S.C. §§ 841(a)(1) & (b)(1)(C)

and 18 U.S.C. § 2 (Count 3), and Mrs. Murphy was

convicted of three counts of providing a false statement to

the Internal Revenue Service, in violation of 26 U.S.C.

§ 7206(1) (Counts 23 to 25). Pet. App. 8a.

At trial, on the substantive drug distribution count for

violating 21 U.S.C. § 841 (Count 3), the court instructed

the jury that it could convict Dr. Murphy without finding

that he knew his prescriptions were without a legitimate

medical purpose or outside the usual course of

professional practice. See Pet. App. 115a-117a (§ 841

instruction);

Pet. App. 39a-41a

(opinion

vacating

conviction). Rather, the court instructed the jury that it

could convict Dr. Murphy of this crime if it found that he

dispensed the prescription knowingly and intentionally,

and without a legitimate medical purpose or outside the

usual course of professional practice, without any finding

of subjective knowledge. See Pet. App. 115a-117a;

Pet. App. 39a-41a.

On the conspiracy count for violating 21 U.S.C. § 846

(Count 1), the court instructed the jury that it could

convict petitioners if it found the following:

(1) two or more people in some way agreed to try

to accomplish a shared and unlawful plan to dispense

controlled substances without a legitimate medical

purpose or outside the usual course of professional

practice;

(2) the Defendant knew the unlawful purpose of the

plan and willfully joined in it; and

(3) the object of the unlawful plan was to dispense

controlled substances without a legitimate medical

6

purpose or outside the usual course of professional

practice.

Pet. App. 118a-119a (jury instruction); see Pet. App. 42a43a (opinion declining to vacate conviction). Like the

erroneous § 841 instruction, the § 846 instruction never

instructed the jury that the defendants needed to

subjectively know that prescriptions made pursuant to

the plan would be made without a legitimate medical

purpose or outside the usual course of professional

practice. See Pet. App. 118a-119a.

C. Shortly after the verdict this Court decided Ruan

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

II, this Court resolved the mens rea the government

needs to prove to convict a physician for unlawful

prescribing under 21 U.S.C. § 841(a). See Pet. App. 17a

(opinion below). The Court held that if a defendant was

authorized to prescribe a controlled substance (for

instance, a doctor defendant), the government must prove

not only that the doctor knew he was prescribing the

drugs, but also that he knew or intended that the

prescription was unauthorized. Pet. App. 17a (citing

Ruan II, 597 U.S. at 454-55, 457-61).

A federal regulation defines what it means for a

prescription to be “authorized.” See Ruan II, 597 U.S. at

454-55. That regulation provides that a prescription is

only authorized when a doctor issues it “for a legitimate

medical purpose . . . acting in the usual course of his

professional practice.” Id. (quoting 21 C.F.R. § 1306.04(a)

(2021)). At minimum, therefore, to satisfy Ruan II a

doctor convicted under § 841 must be found to have

subjectively known that a prescription was made without

a legitimate medical purpose or outside the usual course

of professional practice. Id. at 467.3

Ruan II is ambiguous on the question whether a physician must

also know—in addition knowing that a prescription is without a

3

7

D. Applying Ruan II, the district court vacated Dr.

Murphy’s § 841 conviction (Count 3). Pet. App. 39a-41a.

But the district court declined to vacate petitioner’s § 846

conspiracy conviction because controlling Eleventh

Circuit precedent foreclosed petitioners’ argument that

failure to correctly instruct the jury as to the elements of

§ 841 invalidated the Count 1 drug conspiracy charge

predicated on agreeing to violate § 841. Pet. App. 42a-43a.

E. The Eleventh Circuit affirmed that holding on

appeal. Pet. App. 17a-20a. The panel held that petitioners’

challenge to the drug conspiracy count was foreclosed by

the Circuit’s prior decision in United States v. Ruan, 56

F.4th 1291, 1298-99 (11th Cir. 2023) (Ruan III) which

“addressed this very issue.” Pet. App. 18a. The panel

explained that in Ruan III “we had to decide how Ruan

II’s holding on the mens rea needed for a substantive

drug offense applied to a conspiracy drug offense.”

Pet. App. 18a. “Though we vacated the defendants’

substantive drug convictions under section 841, we held

that there was no error in a section 846 drug conspiracy

jury instruction nearly identical to the one the district

court used here.” Pet. App. 18a (citing Ruan III, 56 F.4th

at 1298-99). “Our explanation was simple: to find a

defendant guilty of conspiracy, ‘[t]he jury would need to

find that the defendant knew the illegal object of the

conspiracy.’” Pet. App. 18a (quoting Ruan III, 56 F.4th at

1299). “And to find that the defendant knew the ‘aim of

[his] agreement was illegal,’ the jury had to find that he

(1) knew he was dispensing a controlled substance and (2)

legitimate medical purpose or outside the usual course of

professional practice—that the prescription is inconsistent with the

regulation, 21 C.F.R. § 1306.04(a). Ruan II strongly suggests that

physicians must subjectively know that their conduct is inconsistent

with the regulation. See Ruan II, 597 U.S. at 454-55, 457-61. For

purposes of this case the degree of subjective knowledge required

to violate § 841 is irrelevant.

8

knew he was doing so in an unauthorized manner.”

Pet. App. 18a (quoting Ruan III, 56 F.4th at 1299). “If the

jury concluded that the defendant did not know either of

these things, then they could not conclude the defendant

knew the illegal object of the conspiracy and could not

vote to convict.” Pet. App. 18a (quoting Ruan III, 56 F.4th

at 1299).

“Here,” the panel explained, “like in Ruan III, the

district court instructed the jury that to convict the

Murphys on drug conspiracy, the jury had to find that the

Murphys agreed to accomplish a shared ‘unlawful plan to

dispense controlled substances without a legitimate

medical purpose or outside the usual course of

professional practice,’ and that they ‘knew the unlawful

purpose of the plan and willfully joined it.’” Pet. App. 18a

(citations omitted). “Thus, like in Ruan III, the jury had

to find that the Murphys knew their drug distribution

plan was unlawful—and, necessarily, that they knew they

were dispensing drugs in an unauthorized manner.”

Pet. App. 18a-19a. “So applying Ruan III, we conclude

the district court’s instruction under section 846 conveyed

the proper mens rea requirement to the jury.”

Pet. App. 19a.

The panel recognized that the Eleventh Circuit’s

precedent conflicts with the Tenth Circuit’s precedent in

United States v. Kahn, 58 F.4th 1308, 1311, 1322 (10th Cir.

2023) but noted that the Eleventh Circuit had already

been asked once before (and already refused once before)

to follow Kahn—in United States v. Duldulao, 87 F.4th

1239, 1253 (11th Cir. 2023). Pet. App. 19a. Quoting

Duldulao, the Eleventh Circuit rejected the request

because “the Tenth Circuit’s decision in Kahn does not

deny our prior precedent rule its force,” and “under our

prior panel precedent rule, Ruan III controls.”

Pet. App. 19a.

9

Judge Jordan concurred in the opinion.

Pet. App. 34a-35a. He explained that “First, I agree that

the Murphys’ challenge to the drug conspiracy instruction

is foreclosed by our prior decision in [Ruan III].”

Pet. App. 34a. “But if we were writing on a clean slate, I

would find the Tenth Circuit’s contrary decision in

[Kahn], more persuasive.” Pet. App. 34a.

The Eleventh Circuit denied a timely petition for

rehearing en-banc. Pet. App. 68a.

REASONS FOR GRANTING THE PETITION

The decision below entrenches a clear, acknowledged,

and intractable split on a fundamental rule of conspiracy

law. The Fourth and Tenth Circuits hold that a jury must

be correctly instructed on the elements of the offense that

is the object of a § 846 conspiracy. The Fifth and Eleventh

Circuits disagree. In the ruling below, the Eleventh

Circuit doubled down—for the fourth time—on the view

that a defendant can be convicted of conspiring to violate

§ 841 even if the jury was misinstructed on what it takes

to violate that statute. That result is irreconcilable with

bedrock conspiracy law and defies common sense: a jury

cannot find a defendant conspired to commit a crime it

does not understand. The conflict is mature, outcomedeterminative, and ripe for resolution. This case is the

ideal vehicle to resolve it.

I.

THERE IS A CLEAR AND INTRACTABLE

CONFLICT OVER A SIGNIFICANT QUESTION

The decision below entrenches a square, widely

acknowledged circuit split over a foundational question of

conspiracy law with sweeping consequences. The

Eleventh Circuit did not deny the conflict—it recognized

it, rejected its sister circuits’ approach, and has now

declined en banc reconsideration four times. Even a judge

bound to affirm—Judge Jordan below—has questioned

his circuit’s reasoning and pointed to the opposing view as

10

more faithful to the law. This stark disagreement only

underscores the urgent need for this Court’s intervention:

• Two circuits—the Fifth and Eleventh—hold that

a § 846 conspiracy conviction may be sustained

even when the jury was erroneously instructed as

to the elements of the underlying § 841 offense.

• Two circuits—the Fourth and Tenth—hold that a

defendant cannot be convicted of violating § 846

by conspiring to violate § 841 unless the jury is

properly instructed on the elements of the

underlying § 841 offense.

The division over this fundamental question is

untenable. This conflict sows uncertainty and confusion

about what is required to prove a 21 U.S.C. § 846

violation—or, indeed, conspiracy to commit any crime.

This stark conflict demands immediate resolution.

The open conflict here has been recognized by courts

and commentators alike, see, e.g., supra note 2, and it has

no realistic prospect of resolving itself. This split has

persisted for years and arose almost immediately after

this Court issued Ruan v. United States, 597 U.S. 450

(2022) (“Ruan II”), now standing at 2-2, with each side

firmly committed to its position. Any hope that this

division will resolve itself is long gone. The conflict is ripe

for resolution, and this Court’s intervention is urgently

needed to provide definitive guidance on how to address

the requirements for instructing a jury on a exceedingly

common § 846 charges. This circuit split is undeniable,

deeply rooted, and should be settled by this Court in this

case.

A. The decision below directly conflicts with settled

law in the Fourth and Tenth Circuits. These courts have

held that to convict a defendant of a § 846 conspiracy, a

jury must be properly instructed on the underlying

elements necessary to commit the underlying § 841

11

offense—in particular, the mens rea element requiring

the defendant to know that his dispensing of controlled

substances is unauthorized.

1. The decision below directly conflicts with settled

law in the Tenth Circuit. In United States v. Kahn, 58

F.4th 1308 (10th Cir. 2023), the Tenth Circuit concluded

that a § 846 conviction could not be sustained based on an

erroneous § 841 scienter instruction. There, a doctor was

convicted of several offenses, including dispensing

controlled substances and conspiracy to do so. See id. at

1311-12. The jury instructions did not require proof that

the doctor subjectively knew his prescriptions were

unauthorized. See id. at 1312-13. The Court therefore

vacated the substantive § 841 conviction. Id. at 1314, 131617, 1320. The Tenth Circuit also vacated the § 846

conspiracy count. Id. at 1322. That instruction was faulty

because it was “predicated, at least in part, on one or more

of the erroneous § 841(a)(1) instructions”—none of which

“correctly articulated” the mens rea element required to

sustain a § 841 conviction. Id.

2. The decision below also squarely conflicts with

settled law in the Fourth Circuit. In United States v.

Naum, 134 F.4th 234 (4th Cir. 2025), the Fourth Circuit

held that failure to correctly instruct on the elements

required to violate § 841 renders a § 846 instruction

erroneous. Naum, 134 F.4th at 239-40.

There, the government alleged a doctor knew that a

nurse at his medical clinic was prescribing controlled

substances to treat opioid addiction without his

supervision, and that he did not intervene. Id. at 236. A

jury convicted the doctor for conspiracy under § 841 and

§ 846, as well as aiding and abetting a violation of § 841.

Id. at 237. The district court denied the doctor’s motion

for a new trial, which the Fourth Circuit initially affirmed,

but this Court vacated and remanded for the circuit to

12

reconsider under Ruan’s § 841 scienter standards. Id. at

238.

On remand, the Fourth Circuit held that the aidingand-abetting instruction was erroneous because the jury

was not instructed that conviction for aiding-and-abetting

required the doctor to “subjectively believe[] his conduct

was outside the bounds of professional practice.” Id. at

239.

The Fourth Circuit also held that the conspiracy

instructions were erroneous. Id. at 239-40. The conspiracy

instructions required the jury to find “(1) ‘an agreement

between two or more persons to distribute suboxone

outside the bounds of professional medical practice;’ (2)

that [the doctor] knew of the conspiracy; and (3) that [the

doctor] ‘knowingly and voluntarily participated in the

conspiracy.’” Id. They further required the jury to find

that “there was a mutual understanding, either spoken or

unspoken, between two or more people, to distribute [a

controlled substance] outside the bounds of professional

medical practice.” Id. at 240. But that was not enough. Id.

The instructions “[did] not clarify” that the doctor “must

have known that allowing [the nurse] to submit

prescriptions the way she did was outside the bounds of

professional medical practice.” Id. The instructions were

thus “incorrect after Ruan,” because they failed to

provide the correct elements for § 841, and “[n]o other

instructions cure[d] the error or accurately state[d] the

controlling law” as to scienter. Id.

3. The Sixth Circuit has signaled it would likely join

the Fourth and Tenth circuits, but has not yet taken a

side. In United States v. Campbell, the Sixth Circuit

upheld a conviction in an appeal challenging a defendant’s

§ 846 conviction, 135 F.4th 376, 388 (6th Cir. 2025)

(quoting United States v. Bauer, 82 F.4th 522, 533 (6th

Cir. 2023)).

13

In the course of its analysis, the Sixth Circuit

explained the minimum requirements to convict for a

§ 846 violation in terms that align with the holdings and

analysis of the Fourth and Tenth circuits. The Sixth

Circuit explained that “the Supreme Court’s reading of

the [§ 841] statute [in Ruan] . . . affects what the

government must prove to properly convict . . . under

§ 846.” Id. at 386.4 “[T]o prove a conspiracy to unlawfully

distribute, the government must prove beyond a

reasonable doubt that the defendant ‘knowingly and

voluntarily joined’ an ‘agreement’ to violate Section 841.”

Id. “And after Ruan, a person cannot ‘knowingly’ agree to

violate § 841 unless he agrees to commit acts he knows are

unauthorized.” Id. “Thus, the government cannot prove a

§ 846 violation unless it proves that the conspirators in the

agreement knew they were acting—or intended to act—

without a legitimate medical purpose in the usual course

of professional practice.” Id.

The Campbell court ultimately held that circuit

precedent required affirmance on the independent

ground that the underlying § 841 instructions were not

erroneous even after Ruan. Id. at 387-89.

B. In open conflict with the Fourth and Tenth

circuits, the Fifth and Eleventh circuits have held that a

person may be convicted of a § 846 conspiracy even when

the trial court fails to properly instruct the jury as to the

elements required to commit a § 841 offense.

1. In a series of cases culminating in the decision

below, the Eleventh Circuit has repeatedly and

consistently held that a trial court does not commit error

by failing to correctly instruct the jury on the elements of

Contra Korcz v. United States, 2023 WL 2998483, at *7 (N.D. Ala.

Apr. 18, 2023) (explaining that the Eleventh Circuit rule is that

Ruan “did not change” what the government must prove to convict

under § 846).

4

14

the underlying offense. In the decision below, the court

refused to reverse a § 846 conspiracy offense even though

the substantive § 841 conviction was vacated because the

jury instruction “did not comply with Ruan.”

Pet. App. 18a. Judge Jordan expressed that “writing on a

clean slate,” he “would find the Tenth Circuit’s contrary

decision in [Kahn] more persuasive.” Pet. App. 34a

(Jordan, J., concurring).

In United States v. Mencia, No. 18-13967, 2022 WL

17336503 (11th Cir. Nov. 30, 2022), a defendant physician

was convicted of § 846 conspiracy, the Eleventh Circuit

affirmed, and this Court remanded for further

consideration in light of Ruan, see id. at *1. The

conspiracy instructions provided that to convict the

defendant, the jury need find that

(1) [the defendant] and another person “in some way

agreed to try to accomplish a shared and unlawful

plan to distribute or dispense a controlled substance,

outside the scope of professional practice and not for

a legitimate medical purpose”; (2) [the defendant]

“knew the unlawful purpose of the plan and willfully

joined in it”; and (3) the purpose of the plan, “was to

distribute or dispense a controlled substance, outside

the scope of professional practice and not for a

legitimate medical purpose.”

Id. at *14. Although the jury instructions nowhere

contained the proper § 841 mens rea instruction, the court

reasoned it was sufficient that the defendant generally

knew the “unlawful purpose of the plan.” Id. If the

defendant did not “know[] that the prescriptions were

unauthorized,” the court reasoned, then “he could not

have known the ‘unlawful purpose of the plan.’” Id. The

§ 846 instruction was therefore correct even though the

jury never received the proper instruction as to the

elements required to commit the substantive § 841

offense. The court denied rehearing. See Order Den. Pet.

15

Reh’g, United States v. Mencia, No. 18-13967, (11th Cir.

Jan. 24, 2023).

The Eleventh Circuit took the same tack in Ruan

following this Court’s remand. The defendants there were

convicted of violating § 841 and § 846, among other

offenses. See United States v. Ruan, 56 F.4th 1291, 1299

(11th Cir.). On remand, the court held that the § 841

instruction was erroneous because it inadequately

conveyed that the defendant must know his conduct is

unauthorized under federal law. Id. at 1298. The

instruction for the substantive count was thus incorrect,

and the error was not harmless. Id.

The court nonetheless determined that “the

inadequate substantive jury instruction would have no

effect on the jury’s analysis for the conspiracy counts.” Id.

at 1299. That conspiracy instruction required the jury to

find that “[1] two or more people in some way agreed to

try and accomplish a shared unlawful plan [2] to distribute

or dispense . . . the alleged controlled substance or

substances,” and that they “[3] knew the unlawful purpose

of the plan and willfully joined it.” Id. The “conspiracy

instructions” “already required [the defendants] to find

that the defendant acted with subjective knowledge.” Id.

If the jury “concluded that [the defendants] believed their

actions to be for a legitimate medical purpose they could

not have found the defendants made an ‘unlawful plan’

and ‘knew’ its ‘unlawful purpose,’” the court reasoned. Id.

Thus, “the instructions for the drug conspiracy charges

were not erroneous,” even though they did not properly

instruct the jury on the elements of § 841. Id. The court

again denied rehearing. Order Den. Pet. Reh’g, United

States v. Ruan, No 17-12653 (11th Cir. Mar. 2, 2023).

The Eleventh Circuit reaffirmed its holding in Ruan

III in United States v. Duldulao, 87 F.4th 1239, 1254,

reh’g denied (11th Cir. 2023). The Eleventh Circuit in

Duldulao recognized that its law conflicted with the

16

Tenth Circuit’s decision in Kahn, but nonetheless

declined to reconsider its approach. Duldulao, 87 F.4th at

1253. The court denied rehearing in Duldulao. Order Den.

Pet. Reh’g, United States v. Duldulao, No 20-13973 (11th

Cir. Mar. 1, 2024).

The decision below followed the same script.

Petitioners were convicted under §§ 841 and 846, among

other criminal statutes. Pet. App. 8a. The district court

vacated the substantive § 841 conviction after Ruan

because the jury instructions were erroneous and “did not

comply with Ruan II.” Pet. App. 17a. Petitioners argued

that this error vitiated the conspiracy charge as well, but

the Eleventh Circuit disagreed. Pet. App. 17a-18a. Those

instructions were nearly identical to those in Ruan III,

including the requirement that petitioners must have

“kn[own] the unlawful purpose of the plan.” Pet. App. 18a.

Ruan III thus dictated the outcome, and it did not matter

that the jury never knew the correct elements of the

substantive offense petitioners allegedly conspired to

commit. Pet. App. 18a. The court denied rehearing for the

fourth time. See Order Den. Pet. Reh’g, United States v.

Murphy, No. 23-10781 (11th Cir. Mar. 17, 2025).

2. The Fifth Circuit followed the Eleventh Circuit’s

lead in United States v. Qureshi, 121 F.4th 1095, 1103 (5th

Cir. 2024). The jury in Qureshi convicted the defendant of

the substantive § 841 offense and § 846 conspiracy. Id. at

1097. On appeal, the defendant argued that both the

substantive and conspiracy instructions were inconsistent

with Ruan because they omitted the required mens rea

element. Id. at 1101. The Fifth Circuit agreed that the

§ 841 instruction was incorrect because it did not require

the jury to find that the defendant “knew that he ‘was

acting in an unauthorized manner’ as required by Ruan.”

Id. That error was not harmless. Id. at 1105.

The Fifth Circuit rejected the argument that the

conspiracy instruction was similarly erroneous. See id. at

17

1102-05. Like the Eleventh Circuit’s pattern conspiracy

instructions, the Fifth Circuit’s instructions required the

government to prove

First: That two or more persons, directly or

indirectly, reached an agreement to unlawfully

distribute or dispense a controlled substance not for

a legitimate medical purpose or not in the usual

course of professional practice;

Second: That the defendant knew of the unlawful

purpose of the agreement; and

Third: That the defendant joined in the agreement

willfully; that is with the intent to further its unlawful

purpose.

Id. at 1100.

The Fifth Circuit reasoned that “by convicting,” the

jury concluded that the defendant “knew the unlawful

purpose of the agreement,” namely “that he knew the

agreement was to distribute controlled substances

without authorization.” Id. at 1102. Thus, although the

jury did not receive the correct instruction for the

substantive offense, the court was “not persuaded that the

conspiracy conviction [was] erroneous just because the

substantive charge is erroneous.” Id. at 1103. The

instruction was sufficient because the jury was required

to find that the defendant “knew the unlawful purpose of

the agreement.” Id. at 1104. In reaching its holding, the

Fifth Circuit explained that it was following the Eleventh

Circuit’s lead, and adopting the same logic that the

Eleventh Circuit adopted in Ruan III. See id. at 1103.

The Fifth Circuit thus holds that a § 846 instruction is

proper even if the jury does not receive the correct

elements of the substantive offense. See id. at 1102-05.

*****

The division over what a jury must be told to convict

under § 846 is entrenched and unyielding. Two circuits

18

require accurate instructions on the elements of the

underlying offense; two do not. Each side has dug into its

position, and no court appears poised to switch sides. The

longer this conflict persists, the more fractured and unfair

federal conspiracy law becomes—inviting disparate

outcomes in indistinguishable cases and sowing confusion

in one of the most frequently charged federal crimes. This

case cleanly presents the question and is an ideal vehicle

for resolving this conflict. The petition should be granted.

II. THE DECISION BELOW IS WRONG

The decision below is wrong. It ignores the

foundational principle of conspiracy law that a jury must

be correctly instructed on the elements of the crime the

defendant allegedly conspired to commit. Conspiracy is

not an abstract crime; it requires proof that the defendant

knowingly agreed to engage in conduct that is itself

criminal. But if the jury is never instructed on what

constitutes that crime—here, what it means to violate

§ 841—it cannot properly find that the defendant agreed

to commit it.

There is perhaps no more firmly established principle

than the rule that in a conspiracy prosecution the jury

must be correctly instructed on the elements of the

underlying substantive crime. See United States v.

Alghazouli, 517 F.3d 1179, 1189 (9th Cir. 2008) (explaining

that “if a jury is asked to determine whether a defendant

conspired to commit an offense, the jury needs to know

the elements of that offense” and collecting cases); see

also United States v. Sawyer, 85 F.3d 713, 742 (1st Cir.

1996) (similar); United States v. Pinckney, 85 F.3d 4, 8 (2d

Cir. 1996) (similar); United States v. Gallagher, 576 F.2d

1028, 1046 (3d Cir. 1978) (similar).5

The Third Circuit’s Model Jury Instruction for Conspiracy

(6.18.371A) explains:

5

19

The well-settled nature of this rule is reflected in

federal courts’ model jury instructions guiding district

courts to include the elements of the underlying crime

when instructing § 846 conspiracy. See, e.g., 1st Cir.

Pattern Jury Instrs., Criminal, 4.18.317(1) (rev. 2015)

(instructing trial courts to “[Insert elements of underlying

crime(s)]” into conspiracy instruction); 3d Cir. Pattern

Jury Instrs., Criminal, 6.21.846B (rev. 2018) (instructing

trial courts to “explain the elements” of the § 841 offense);

6th Cir. Pattern Jury Instrs., Criminal, Use Note for 14.05

(rev. 2021) (explaining that the substantive drug offense

“must be defined at some point in the conspiracy

instruction”); 5th Cir. Pattern Jury Instrs., Criminal, 2.97

(2024 ed.) (counseling trial courts to “give elements of

object crime” when instructing on a § 846 count).

That well-settled rule decides this case. The jury here

was incorrectly instructed as to the elements required to

violate § 841 in both the substantive count (Count 3) and

in the conspiracy count (Count 1). The conspiracy

instruction told the jury that it could convict for violating

§ 846 if it found—

(1) two or more people in some way agreed to try

to accomplish a shared and unlawful plan to dispense

controlled substances without a legitimate medical

purpose or outside the usual course of professional

practice;

(2) the Defendant knew the unlawful purpose of the

plan and willfully joined in it; and

In addition to instructing on the elements of conspiracy to

commit an offense against the United States, the trial judge

must also instruct on the elements of the substantive offense(s)

that is (are) the object of the conspiracy. See, e.g., United States

v. Yasbin, 159 F.2d 705 (3d Cir. 1947).

3d Cir. Pattern Jury Instrs., Criminal, 6.18.371A Comment (rev.

2018).

20

(3) the object of the unlawful plan was to dispense

controlled substances without a legitimate medical

purpose or outside the usual course of professional

practice.

Pet. App. 118a (jury instruction); see Pet. App. 42a-43a

(opinion refusing to vacate conviction). Those instructions

did not inform the jury that, in order to convict Dr.

Murphy of conspiracy, the jury needed to find that Dr.

Murphy knew he was dispensing controlled substances

without a legitimate medical purpose or outside the usual

course of professional practice. Those instructions did not

inform the jury that, in order to convict Mrs. Murphy of

conspiracy, the jury needed to find that Mrs. Murphy

knew Dr. Murphy was dispensing controlled substances

without a legitimate medical purpose or outside the usual

course of professional practice.

The Fifth and Eleventh Circuits are simply wrong

that the generic conspiracy mens rea instruction can

substitute for a correct mens rea instruction on the

underlying substantive offense. Pet. App. 18a. The

generic conspiracy instructions in this case informed the

jury that conviction required a finding that the defendants

made a plan to engage in an unlawful actus reus—here,

dispensing controlled substances without a legitimate

medical purpose or outside the usual course of

professional practice. But the generic conspiracy

instructions did not inform the jury that it needed to make

the further key finding that the defendants had the

requisite mens rea to commit the underlying offense—

that is, that the defendants knew Dr. Murphy was in fact

dispensing without a legitimate medical purpose or

outside the usual course of professional practice.

The distinction is meaningful. The jury in this case,

relying on the instruction above, could easily have

convicted Mrs. Murphy of § 846 conspiracy solely because

it determined (1) that Mrs. Murphy knew that Dr.

21

Murphy was dispensing controlled substances in a certain

manner; and (2) determined that his dispensing in that

manner was without a legitimate medical purpose or

outside the usual course of professional practice. Thus,

under the instructions in this case the jury could have

returned a guilty verdict on this conspiracy count without

making a finding on the most critical element protecting

a layperson from wrongful conviction in this sort of

prosecution: that Mrs. Murphy knew that Dr. Murphy

was in fact dispensing controlled substances without a

legitimate medical purpose or outside the usual course of

professional practice.6

The Fifth and Eleventh Circuits are incorrect that

the jury instruction that the “Defendant knew the

unlawful purpose of the plan” is equivalent to the

instruction that the “Defendant knew the plan’s purpose

was unlawful.” Pet. App. 18a-19a; see United States v.

Qureshi, 121 F.4th 1095, 1102 (5th Cir. 2024) (making this

claim); United States v. Duldulao, 87 F.4th 1239, 1253

(11th Cir. 2023) (same); United States v. Ruan, 56 F.4th

1291, 1299 (11th Cir. 2023) (same); United States v.

Mencia, No. 18-13967, 2022 WL 17336503, at *14 (11th

Cir. Nov. 30, 2022) (same). Conviction for conspiracy does

not require the jury to find that the co-conspirators knew

their agreed-upon conduct was unlawful, and this

instruction does not instruct the jury to make that finding.

Contra Pet. App. 18a-19a. The instruction that the

To see this clearly, consider the following hypothetical. A doctor

and a non-doctor agree that the doctor will allow nurses to write

prescriptions. Suppose doing so is outside the usual course of

professional practice. Under the Fifth and Eleventh Circuit’s

instructions, the jury could convict the non-doctor because of the

non-doctor’s knowledge that nurses are prescribing (that is the

plan’s “unlawful purpose” and its “object”), even if the non-doctor

has no idea that this conduct is outside the usual course of

professional practice.

6

22

defendant must know the “unlawful purpose of the plan”

means what it says and what every lay juror would

understand it to say: (1) the defendant must know the

purpose of the plan and (2) that purpose must be unlawful.

More than its plain language establishes that this is

not a knowledge-of-unlawfulness instruction. This is the

Eleventh Circuit’s generic pattern instruction for many

federal conspiracy offenses, including 8 U.S.C.

§ 1324(a)(1)(A)(v)(I), 18 U.S.C. § 286, § 371, § 1349,

§ 1956(h), and 21 U.S.C. § 846 and/or 21 U.S.C. § 963. See

11th Cir. Pattern Jury Instrs., Criminal (2024 ed.). And

the Eleventh Circuit does not require proof that the

defendant knew the underlying conduct was unlawful to

convict under § 846. See, e.g., United States v. Calderon,

127 F.3d 1314, 1326 (11th Cir. 1997). Nor does it require

proof that the defendant knew the underlying conduct

was in fact unlawful to convict under other conspiracy

statutes. See, e.g., United States v. Howard, 28 F.4th 180,

189 (11th Cir. 2022) (“Conspiracy convictions . . . require

proof that the defendant knew the essential unlawful

object of the conspiracy and agreed to it.”).

In any case, even on its own terms the Fifth and

Eleventh Circuits’ syllogism fails. Even if the jury

instruction here required knowledge that Dr. Murphy’s

conduct was unlawful, that is not equivalent to an

instruction that petitioners knew Dr. Murphy was

prescribing without legitimate medical purpose or outside

the usual course of professional practice. Even if these

instructions could be construed—contrary to their plain

meaning—as an instruction to the jury to find that the

defendants knew the plan’s purpose was unlawful, the

jury could still potentially have convicted the petitioners

because the jury believed petitioners knew Dr. Murphy’s

conduct was unlawful under some statute other than § 841.

23

III. THE QUESTION PRESENTED IS IMPORTANT

AND WARRANTS REVIEW IN THIS CASE

A. This case is legally and practically important. The

question whether a defendant may be convicted of

conspiracy without a jury ever being instructed on the

essential elements—most critically, the mens rea—of the

underlying offense is of fundamental importance to the

integrity of federal criminal law. Put simply, this case cuts

to the core of how federal conspiracy trials are conducted

and whether convictions can stand when juries are

misinformed about the very crime the defendant is

accused of agreeing to commit.

1. The legal stakes of this case are high. Conspiracy

is a derivative crime whose contours are defined by the

substantive statutes it invokes. If juries may be left in the

dark about what the underlying crime actually requires,

the doctrinal underpinnings of conspiracy evaporate. The

Fifth and Eleventh Circuits have effectively lowered the

government’s burden in conspiracy prosecution,

permitting convictions untethered from any conscious

agreement to break the law. Left unchecked, that

approach will transform conspiracy from a carefully

regulated adjunct to substantive criminal law into a vessel

for sweeping, amorphous “conspiracy” findings

untethered from substantive law.

2. The practical importance of this case is also hard

to overstate. The question presented has ongoing

significance for all conspiracy prosecutions nationwide.

The logic of the Fifth and Eleventh circuits would excuse

the omission of the substantive mens rea element of

underlying substantive offenses in virtually every

conspiracy prosecution. The significance is amplified by

the fact that these circuits are not holding that these

errors are harmless; they are holding that they are not

even errors. Thus, unless this Court intervenes, courts in

the Eleventh Circuit are going to continue using these

24

instructions. See Korcz v. United States, 2023 WL

2998483, at *7 (N.D. Ala. Apr. 18, 2023) (explaining that

the Eleventh Circuit’s pre-Ruan § 846 pattern instruction

remains valid after Ruan).

The view that instructing on an the underlying

offense’s mens rea element is unnecessary has ongoing

and sweeping consequences for every conspiracy

prosecution. The circuits that sustain conspiracy

convictions without fully informing the jury of the

substantive offense not only get the law wrong, but their

error has an outsized practical effect on cases throughout

the country.

3. The implications of misinterpreting 21 U.S.C.

§ 846 are staggering. Section 846 is the most commonly

charged violation of federal criminal law in the United

States, charged more frequently even than the felon-inpossession of a firearm offense in 18 U.S.C. § 922(g). See

Dep’t of Justice Bureau of Justice Statistics, Federal

Criminal Case Processing Statistics Data Tool,

http://bit.ly/3TJEVeJ. In 2023 alone, charges for violating

§ 846 accounted for an extraordinary 1/8th of federal

criminal charges. See id. Between 1994 and 2023, nearly

403,000 people were charged with § 846 conspiracy, nearly

doubling the number of individuals accused of committing

the substantive offense under § 841 during the same time

period. See id. These charges also dwarf the number

brought under the general federal conspiracy statute—18

U.S.C. § 371—which targeted 983 individuals in 2023,

compared to 8,360 individuals charged under § 846 during

the same year. See id. In recent decades, § 846 has become

the core of conspiracy law in the United States.

4. The question presented is also extraordinarily

important to physicians that prescribe controlled

substances to their patients. As the Court affirmed in

Ruan “we expect, and indeed usually want, doctors to

prescribe the medications that their patients need.” 597

25

U.S. 450, 459 (2022). Thus “[i]n § 841 prosecutions . . . it is

the fact that the doctor issued an unauthorized

prescription that renders his or her conduct wrongful, not

the fact of the dispensation itself.” Id. A “strong scienter

requirement” helps “to diminish the risk of

‘overdeterrence,’ i.e., punishing acceptable and beneficial

conduct that lies close to, but on the permissible side of,

the criminal line.” Id. The need for strong mens rea

protections in this area is especially critical because Ҥ 841

imposes severe penalties upon those who violate it,

including life imprisonment and fines up to $1 million.” Id.

at 460. By permitting prosecutions under § 846 without

requiring the same “strong” mens rea that protects

physicians under § 841, the rule in the Fifth and Eleventh

Circuits undoes virtually all that Ruan sought to

accomplish. Conviction under § 846, after all, carries the

same penalties as conviction under § 841. See 21 U.S.C.

§ 846. And prosecutors can charge a § 846 conspiracy in

virtually every case where they can charge a § 841—

indeed, they charge the conspiracy offense far more often

than the substantive one.

5. The specific instructional error at issue here is also

exceptionally important to protecting non-physicians—

like Mrs. Murphy—from wrongful convictions under

§ 846. The mens rea of the § 841 offense requires proof

that the physician knew his prescriptions were without a

legitimate medical purpose or were made outside the

usual course of medical practice. In a § 846 prosecution for

a non-physician co-conspirator that mens rea protection

is supposed to be even stronger. The jury is supposed to

be instructed to find that the co-conspirator knew that the

prescriptions were made without a legitimate medical

purpose or outside the usual course of medical practice—

something that one would think would rarely be true of a

non-physician co-conspirator. The instructions permitted

by the Fifth and Eleventh circuits, however, eliminate

26

that important mens rea protection—making if far easier

to find a non-physician alleged co-conspirator guilty of

violating § 846. This case is the perfect example. Mrs.

Murphy’s jury was not correctly instructed on the crime

she allegedly conspired to commit nor the elements this

Court found essential to its proper instruction.

This Court’s decision in Ruan emphasized the

dangers of overcriminalizing medical conduct. But under

the Fifth and Eleventh Circuits’ approach, non-physicians

can be swept into a conspiracy without knowing that the

prescribing physician violated federal law—exposing

them to the same decades-long sentences based on

fundamentally flawed instructions.

B. This case cleanly presents the question. The error

was preserved at every stage: petitioners raised it before

the trial court (Pet. App. 42a-43a) and on appeal

(Pet. App. 17a-20a). The Eleventh Circuit acknowledged

the error in the § 841 instruction and vacated the

substantive conviction, but it affirmed the § 846 conviction

based solely on circuit precedent. The panel recognized

the conflict, and a concurring judge expressed his

preference for the contrary rule. There are no factual

disputes, no procedural obstacles, and no alternative

grounds for affirmance. If the Court does not intervene,

the rule in the Fifth and Eleventh Circuits will remain

entrenched.

27

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

EDWARD M. YARBROUGH

W. JUSTIN ADAMS

SPENCER FANE LLP

511 Union St., Suite 1000

Nashville, TN 37219

(615) 238-6300

Counsel for Mark Murphy

CLAYTON R. TARTT

TARTT LAW LLC

2314 University Blvd

Tuscaloosa, AL 35401

(205) 614-3994

Counsel for Jennifer Murphy

JULY 2025

ANDREW T. TUTT

Counsel of Record

ALEX E. SIRIO

JOHN V. HOOVER

ARNOLD & PORTER

KAYE SCHOLER LLP

601 Massachusetts Ave., NW

Washington, DC 20001

(202) 942-5000

andrew.tutt@arnoldporter.com

Counsel for Mark Murphy and

Jennifer Murphy