Petition for Writ of Certiorari — Jacobson v. United States

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Suprema Court, U.S.

FILED

98°1275 "27 1994

mae eed

~ No. 93

IN THE

Supreme Court of the cinited States

OCTOBER TERM, 1993

CEcIL B. JACOBSON, JR., M.D.,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari

To The United States Court of Appeals

For the Fourth Circuit

PETITION FOR WRIT OF CERTIORARI

JEFFREY S. PARKER

3401 North Fairfax Drive

Arlington, Virginia 22201

(703) 993-8055

Counsel for Petitioner

Cecil B. Jacobson, Jr., M.D.

February 7, 1994

Questions Presented for Review

1. Can the federal mail, wire, and travel fraud statute ‘xe applied

to regulate the professional practice of medicine thiv«igh federal

criminal prosecution?

2. In a federal crit nal prosecution for perjury and for mail,

wire, and travel fraud, can a finding of criminal intent be predicated

upon a jury’s choice between conflicting expert opinion testimony

as to matters of scientific theory and appropriate medical treatment?

3. Is the Fourth Circs.it’s per se rule against jury instructions

defining the reasonable doubt standard consistent with federal

criminal law and the Due Process Clause of the Fifth Amendment?

4. Is anonymous testimony by disguised prosecution witnesses

consistent with the accused’s rights under the Fifth and Sixth

Amendments to confront his accusers in a fair and public trial,

where the prosecution witnesses are competent adults who are under

no threat of physical harm and are not victims of violent crime, but

merely wish to avoid the alleged "stigma" of their association with

the accused?

5. What are the standards governing the evidentiary basis for, and

permissible extent of, an upward departure from the federal

sentencing guidelines?”

6. Does the consideration of the same relevant conduct in

imposing both a guide nes and a pre-guidelines sentence violate the

Ex Post Facto or Double Jeopardy Clauses of the Constitution?

7. Ina federal criminal prosecution, is there any limitation on the

power of a court of appeals to ignore the main issues presented by

the parties, and to render an unpublished decision?

* If the Court grants review on this question, it also should grant review of the

guidelines application issues presented in the court of appeals, in order to

effectively review the permissible extent of the upward departure in this case.

Table of Contents

Questions Presented for Review ................ceeeeeeeees

We Ge PII hiss kav idkcétsisnersccs imine

CE TW a 5 itikascnicasciviaastescieceediessene oun

Re ne One Same ae REE Temes Om OE TR NMS ee

Constitutional, Statutory, and

Regulatory Provisions Involved .....................005

SOUROINONE CE TNE CONE os dst ti dcdressatisindvinariminens

Dr. Jacobson and Medical Science ..................66.

Media-Governmental Investigations ....................

The Government’s Case Against Dr. Jacobson ......

Proceedings in the District Court .......................

Proceedings in the Court of Appeals ...................

The Progress of Medical Science ................... Aae

REASONS FOR ALLOWING THE WRIT ............

I. This Court Should Review the Applicability

of the Federal Mail, Wire, and Travel Fraud

Statutes to Regulate the Professional

Practice of Medicine, Which Has Never Been

Subjected to Direct Federal Regulation

under Any Federal Statute. ......................0ceeeee:

enn 16

II. This Court Should Review the Question

Whether a Finding of Criminal Scienter

May Be Based Upon a Jury’s Choice Between

Conflicting Expert Opinions as to Matters of

Scientific Theory and Appropriate Medical Treatment. . 21

III. This Court Should Resolve the Conflict

Among Circuits on the Propriety of

Jury Instructions Defining Reasonable Doubt. ............. 24

IV. This Court Should Review the Constitutional

Propriety of Anonymous Testimony

by Disguised Adult Witnesses. ...........................cceeee 25

V. This Court Should Resolve Emerging Conflicts

Among the Circuits Regarding the Appropriate

Standards for Upward Departures from the

Federal Sentencing Guidelines. ................................. 27

VI. This Court Should Resolve the Circuit

Conflict on the Constitutionality of Dual

Guidelines and Pre-Guidelines Sentences

Based Upon the Same Conduct. ..........................0000 29

VII. This Court Should Review the Courts of Appeals’

Practice of Issuing Unpublished and

RPE CPUS cick. ccccsccccsccccsesccccccceorcevesens 30

eae tabs ivavaayishsvcewa+nsvevewsvevssevinesiwues 30

APPENDIX:

1. Court of Appeals’ Decision on the Merits ................ la

2. Court of Appeals’ Briefing Orders ........................ 12a

ee ca vnwewececccerecevevenvens 12a

Page

GRP Oe GI i es eee, 13a

C. GE GE Pe a, Fe Kavdcoidcccccccccdciecccsiess 14a

3. Court of Appeals’ Order of December 23, 1992 ...... \, 15a

4. District Court Opinion on courtroom closure

and anonymous trial testimony by

I es oneeenconrans 16a

5. District Court’s Protective Order

regarding anonymous testimony

by prosecution witnesses (excerpts) ..................4. 25a

6. Court of Appeals’ Order Denying Rehearing ............ 27a

7. Texts of Constitutional, Statutory,

and Regulatory Provisions Involved ................... 28a

Table of Authorities

Pages

Cases:

American School of Magnetic Healing v. McAnnulty,

ge ET. | RR Repr em re erm e seh ctibmicensl 3, 22

Bly v. Rhoads, 216 Va. 645, 650 (1976) ..................0005 18

Chaney v. Heckler, 718 F.2d 1174 (D.C. Cir. 1983),

rev'd on other grounds, 470 U.S. 821 (1985) .............. 20.

Coy v. Bowen, 467 U2. SREB Ci vive cnicvvccccvdcsepcsveres 25

Daubert v. Merrell Dow Pharmaceuticals, Inc.,

ae Sees) a ee | ena 21

Durland v. United States, 161 U.S. 306 (1896) .............. 22

Griswold v. Connecticut, 381 U.S. 479 (1965) .............. 21

Lambert v. Yellowley, 272 U.S. 581 (1926) ................. 19

Linder v. United States, 268 U.S. 5 (1925) .............0.... 19

Maryland v. Craig, 497 U.S. 836 (1990) .........00.......e.. 26, 27

McNally v. United States, 483 U.S. 350 (1987) ............. 22

Miller v. Florida, 482 U.S. 423 (1987) ....................05. 29

BO i ee late MF CRIED cco dvcicoccencacccddeceoenads 26

Planned Parenthood v. Casey,

> Rp Sg ae ek PLE svekbcvcctcvenecceccdansoucs 21

Reilly v. Pincus, 338 U.S. 269 (1949) ...........eeeceeeee eens 23

United States v. Algon Chemical Inc,

Pe See. CE Ce Ge FOUED Sentnercescesceerenrmeretens

United States v. Alonzo, 681 F.2d 997 (Sth Cir. 1982) .... 25

United States v. Benskin, 926 F.2d 562 (6th Cir. 1991) ... 28

United States v. Blackburn,

Fe Es BODO? sacecccetecsvesicvevesiendiese

United States v. Campbell,

BPW re Pe CUO ls BRE hav bcnececnsrstececasccdedsses

United States v. Conley, 523 F.2d 650 (8th Cir. 1975) ....

United States v. Delibac, 925 F.2d 610 (2d Cir. 1991) ..

United States v. Diaz-Villafane,

re ie ee eee Boe Te cde dans scavestuduvanciearben

United States v. Dilg, 700 F.2d 620 (11th Cir. 1983) .

United States v. Evers, 453 F. Supp. 1141 (M.D.

Ala. 1978), aff'd, 643 F.2d 1043 (Sth Cir. 1981) .....

United States v. Ferra, 900 F.2d 1057 (7th Cir. 1990)

United States v. Glick, 946 F.2d 335 (4th Cir. 1991) ..

United States v. Headspeth,

Se de Fae CRUE Gile BOED iaivececcnseiessacepesvnceinces

United States v. Hummer,

Pe te CE il FOOD cs hesivecccccnweversarsevenses

United States v. Kikumura,

Be ee FE Ge Es COE oivcincknncsevscncetavsniaens

vii

United States v. Kim, 896 F.2d 678 (2d Cir. 1990) ........ 28

United States v. Kirby, 838 F.2d 189 (6th Cir. 1988) ...... 25

United States v. Lam, 966 F.2d 682 (D.C. Cir. 1992) ..... 28

United States v. Landry, 903 F.2d 334 (Sth Cir. 1990) .... 28

United States v. Margiotta,

GR Fe FE Ge ED tad inencacieovedcvceeqccveteseves 21

United States v. Moore, 423 U.S. 122 (1975) ............... 19

United States v. Nolasco, 926 F.2d 869 (9th Cir. 1991) ... 25

United States v. Niven, 952 F.2d 289 (9th Cir. 1991) ..... 29

United States v. Pearson,

Se Be re BD oii knitescvonscccderssncancenerss 28

United States v. Sanchez,

Be ee Be Gls BED cicecccccovccecesceveccncnesonss 28

United States v. Schuman,

ee Oe Gls FID wietcdnecdccdntcvcesesesussvees 28

United States v. Shaw, 894 F.2d 689 (Sth Cir. 1990) ...... 25

United States v. Siegel, 717 F.2d 9 (2d Cir. 1983) ......... 20

United States v. Strickland,

Se ee ee Ca «STEED hi cuscdvacdncovedesiensniobaven 28

United States v. Trujilo, 948 F.2d 313 (7th Cir. 1991) .... 28

Waller v. Georgia, 467 U.S. 39 (1984) .................eee ee 26

Viii

Pages

in co Winship, 397 U.S. S56 (1DTR) ......crccrcvccscccesveones 24

Statutes, Rules, and Sentencing Guidelines:

Act of June 8, 1872, ch. 335, §§ 300, 301

FF Be siete sovesetnkdsececeswetievessivsicsessccsceresevs 22

Act of March 4, 1909, ch. 321, § 215,

I IE Witte dtettirenerrkessdbackssdeverccosercetwessonsinass 22

Federal Food, Drug, and Cosmetic Act,

Be es ee I itake cain cccavsrecttedecencossdedivee 20

Revised Statutes §§ 3929, 4041.2... ccc eee eee cee eee eens 22

United States Code, Title 18:

RIE sav cds en dlnnccndecdalesiaenaclinbiecdsastbovescesexscarcssystta 8,22

PE Lk Lib cavcedatonecsuncieuewpcndutdaneventadbrodirsenieesiabies 8

Ms aaciinsauvcedanpeewiscunsnepnsseecbedeiauuensasebnsenunndins 8

PE Wedicknns2dsiovseipscusputuceny hides smantdeenerelmneatei 8

SP NUE aciccscsacsuovitesccvslp sideapeendsdviaineomasbcnebare biedindts 8

I Nit iaias Lids binllciiabddmpabesbibrenctivennkvecrisnetesseneeie 28

United States Sentencing Guidelines:

PR iadaicnisicsccadlantauadconvcicesucbisnctsieodemaiennenteers 29

Administrative Materials:

Food and Drug Administration, Legal Status of

Approved Labeling for Prescription Drugs;

Prescribing for Uses Unapproved by the

Food and Drug Administration--Notice of

Proposed Rulemaking, 37 Fed. Reg. 16,503 (1972) ......... 20

Pattern Jury Instructions:

Federal Judicial Center, Pattern Criminal

Jury Instructions 28-29 (1988) .......02::0eeeeeeeereeeeeeeeee ees 25

Manual of Model Criminal Jury Instructions

for the Ninth Circuit § 3.03 (1992) ......--:::sseeeereeeeeeeees 25

Secondary Materials:

Legal Literature:

Bradley, Foreword: Mail Fraud After

McNally and Carpenter: The Essence of Fraud,

79 J. Crim. L. & Criminology 573, 620-21 (1988) ..... 20

Coffee, The Metastasis of Mail Fraud:

The Continuing Story of White Collar Crime,

21 Am. Crim. L. Rev. 1, 13-17 (1983) ............::-eeeee 21

1 Devitt, Blackmar, Wolff & O’Malley,

Federal Jury Practice and Instructions

§ 12.10 (4th ed. 1992) .........ceeeeeeeeeee eee ereenen tense eeees 25

Podger, Mail Fraud: Opening Letters,

43 S.C.L. Rev. 223, 236-39, 267-71 (1992) ............... 20

Rakoff, The Federal Mail Fraud Statute,

18 Duquense L. Rev. 771 (1980) ........... Peed 22

Reynolds & Richman, An Evaluation of

Limited Publication in the United States

Courts of Appeals: The Price of Reform,

Ge UG, Gas Bee Se FP CID cae prcir pecan pesddcewdbesecess 30

Reynolds & Richman,

The Non-Precedential Precedent--

Limited Publication and No-Citation Rules

in the United States Courts of Appeals,

Fe Gs ec ls Rabati c bndvirdiwasdndccdcndsceden<e 30

Note, Unreported Decisions in the

United States Courts of Appeals,

go RR ee Se Ie 30

Medical and Scientific Literature:

V. Beral, et al, Outcome of Pregnancies

Resulting from Assisted Conception,

Se Oe Pe Fe EE hetdhicacccher tea devesacveveensecsees 15

Z. Blumenfeld & M. Dirnfeld,

Spontaneous Fetal Reduction in Multiple

Gestations Assessed by Transvaginal Ultrasound,

99(4) Br J Obstet Gynaecol 333 (April 1992) .............. 14-15

Z. Blumenfeld & M. Ruach, Early Pregnancy

Wastage: The Role of Repetitive

Human Chorionic Gonadotropin Supplementation

During the First 8 Weeks of Gestation,

FAL) Fertll Stortl 19 Gal 19GZ) ...ccvceccsccscccccccecovessess 14

J. Bonner, 17 Recent Advances in

Obstetrics and Gynaecology 151 (1992) .........-...0000+

M.D. Damewood, “Disappearance Rates

of Exogenously Administered HCG

or Endogenous LH," presented in

The Triggering of Ovulation in Stimulat. d

Cycles: HCG or LH?, Bourdeaux, France,

19-20 June 1993, available through Scientia abstracts ....

R.F. Harrison, New Solutions to an Old

Problem: hCG in the management of habitual

and threatened abortion (Excerpta Medica 1991) ........

K.S. Moghissi & R. Leach,

Future Directions in Reproductive Medicine,

116 Arch Pathol Lab Med 436 (April 1992) ..............

A. Nelich, J. Wisser, & S. Krone,

Placental Findings in "Vanishing Twins",

52(4) Geburtshilfe Frauencheilkd

(Germany) 230 (April 1992) ............:eceeeeeeeeee eee eees

K.M. Silverberg, et al., Consecutive

versus Alternating Cycles of Ovarian Stimulation

Using Human Menopausal Gonadotropin,

7(7) Hum Reprod 940 (August 1992) .................020e

Miscellaneous:

PR Newswire, May 8, 1992

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IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1993

No. 93-

CECIL B. JACOBSON, JR., M.D..,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Petitioner Cecil B. Jacobson, Jr., M.D., respectfully prays that

a writ of certiorari issue to review the judgment of the United States

Court of Appeals for the Fourth Circuit.

Opinions Below

The opinion of the court of appeals upon the rendering of its

judgment (1a-11a)' is not published in the Federal Reporter, at that

court’s direction. However, it is available in the LEXIS service at

1993 U.S. App. LEXIS 22534. The district court’s decision

permitting prosecution witnesses to testify anonymously at trial (16a-

24a) is reported at 785 F. Supp. 563 (E.D. Va. 1992).

Jurisdiction

The judgment of the court of appeals was entered on September

3, 1993 (la). An order denying rehearing was entered on

November 8, 1993 (27a). This Court has jurisdiction under 28

U.S.C. § 1254(1).

' Citations to "-a" are to pages of the appendix to this Petition. Citations to

"JA-" are to pages of the Joint Appendix in the court of appeals.

Constitutional, Statutory, and

Regulatory Provisions Involved

The pertinent texts of the Ex Post Facto Clause (art.I, § 9, cl.3),

the First, Fourth, Fifth, and Sixth Amendments to the Constitution,

18 U.S.C. §§ 1341, 1343, 2314, 3553, and 3742, and U.S.S.G. §§

1B1.3, 2F1.1, 231.3, 5K2.3, and 5K2.8 & official commentary

thereto, are set forth in the appendix to this Petition (28a-35a).

Statement of the Case

This case involves an unprecedented and highly publicized federal

criminal prosecution against an eminent physician and scientist, Dr.

Cecil B. Jacobson, who was and is a scientific pioneer in the fields

of human infertility and genetics, and is recognized as such in the

international scientific community.

The government’s case against Dr. Jacobson rests critically on the

assertion that Dr. Jacobson’s methods of infertility treatment, and

his demonstrable scientific theories, can be labeled as a crime under

the federal mail, wire, and travel fraud statutes merely because a

federal jury disbelieves Dr. Jacobson’s scientific theories and instead

believes competing conclusions advanced by government-hired

expert witnesses at trial.

As a result, this case presents, so far as we are aware, the first

and only instance in which a state-licensed physician has been

convicted of federal criminal fraud on the basis of a direct

governmental attack on the professional practice of medicine itself,

i.e., on the provision of medical services by a physician to patients

in the course of a private medical practice. Indeed, aside from

Prohibition-Era enforcement under the special authority of the

Eighteenth Amendment, we believe that this is the first and only

case in which a physician has been convicted of any federal crime

on the basis of any conduct that has not been shown and found,

under appropriate jury instructions of the type that were refused

here, to have been outside the scope of the professional practice of

medicine. To the contrary, both this Court and other federal courts

consistently have held that the practice of medicine is not subject to

federal regulation.

Therefore, the theory of prosecution in this case presen

questions of profound importance to the division of authority

between federal and state governments--and between governmental

power and personal autonomy--in our constitutional system.

First, the prosecution here is yet another example of the ever-

expanding uses of the federal mail fraud and related statutes by

federal prosecutors to both federalize and criminalize the regulation

of activities that previously have been governed exclusively by state

law, in this case, the practice of medicine. Whether Congress

intended the mail fraud statute to be put to that use, and whether it

could constitutionally be so applied, are important questions of

federal law that should be settled by this Court.

Second, the prosecution’s method of proof of "fraudulent" intent

by reference to conflicting expert opinion testimony presents the

question whether criminal liability under the mail fraud statute can

ever be based on a fact-finder’s choice between disputed scientific

opinions. Specifically, this raises the question whether this Court’s

prior decision in American School of Magnetic Healing v.

McAnnulty, 187 U.S. 94 (1902), which construed the mail fraud

statute to exclude such liability, remains authoritative.

In addition to these questions, the wholly extraordinary

proceedings in the courts below raise several questions of fair

process, procedure, and sentencing that warrant this Court’s

attention as presenting important questions of federal law that have

not been settled by this Court and that either present conflicts

among lower court authority or call for an exercise of this Court’s

power of supervision:

Refusal to Define Reasonable Doubt. The district court followed

established Fourth Circuit authority in refusing to instruct the jury

on the definition of the reasonable doubt standard of proof. That

rule also is followed by the Seventh Circuit, but is rejected by other

courts of appeals, thus presenting a conflict of circuits on this

important element of fair criminal procedure that should be resolved

by this Court.

Confrontation and Fair Trial. The district court permitted

prosecution witnesses to testify at trial under assumed names and in

disguise, for reasons that have never been recognized by this Court

or any other court as sufficient to abridge an accused’s rights to a

fair public trial in which he is entitled to confront his accusers.

This Court should review the constitutionality of this procedure

under the Fifth and Sixth Amendments.

Sentencing: Upward Departure and Double Jeopardy. Dr.

Jacobson’s sentence to five years’ imprisonment involved both a

significant upward departure from the guidelines sentence and dual

sentencing under both guidelines and pre-guidelines law based on

the same conduct. Both subjects present conflicts of authority in the

circuits, and the upward departure issues bear on a matter of

fundamental importance to the success of the determinate sentencing

system envisioned by the Sentencing Reform Act of 1984.

Unarticulated Decisions in the Courts of Appeals. Finally, the

court of appeals’ decision on appeal in this case raises supervisory

questions of broad importance to the federal judicial system,

particularly in criminal cases. The court of appeals’ decision was

designated as “unpublished” by that court, and it fails to discuss any

of the main issues briefed and argued by the parties, including all

of the issues set forth above, with the sole exception of the upward

departure on sentencing. This action raises the question whether

there is any minimum standard for the quality of appeilate justice in

the federal courts. Some 20 years of experimentation with reliance

on local rules and practices have not produced satisfactory or

consistent results. This Court should review the question whether

the courts of appeals are in need of uniform guidance on this subject

from this Court.

Dr. Jacobson and Medical Science

The target of the government’s prosecution in this case is Dr.

Cecil B. Jacobson, a distinguished physician and scientist.

Following his graduation from medical school in 1964, Dr.

Jacobson spent much of the next 24 years in scientific research,

teaching, and medical practice in the fields of human infertility and

genetics.” He has been a member of the President’s Committee on

Mental Retardation, a consultant to the federal Food and Drug

Administration, and the recipient of numerous fellowships, awards,

? From 1968 to 1978, he was a member of the faculty of the George

Washington University School of Medicine and he developed a graduate program

in human genetics at that same University. In 1969, 1970, and 1974, he was a

guest scientist at the Reproductive Physiology Unit of Cambridge University.

L ™ : iii a

and recognitions. He is the author of some 70 published scholarly

papers in a variety of medical and scientific journals, including

Science, Journal of the American Medical Association, Lancet, and

New England Journal of Medicine.

Throughout his career, Dr. Jacobson has worked at the forefront

of medical science, and, as a result, has been involved in scientific

controversies from time to time. Dr. Jacobson generally is credited

with pioneering the use in the United States of the amniocentesis

procedure for the diagnosis of genetic defects in unborn children.

Like most new ideas, the amniocentesis procedure--which involves

inserting a needle into a pregnant woman’s uterus--was controversial

at the time of its introduction in the 1960's. Critics claimed that the

procedure was dangerous, and could lead to infections and

miscarriages. However, Dr. Jacobson believed that the procedure

was safe and effective, and continued his work. Eventually, most

of the critics were converted by the accumulation of evidence in

support of Dr. Jacobson’s views. Today, the amniocentesis

procedure is widely accepted and routinely performed.

Dr. Jacobson’s work in the medical treatment of human infertility

is following the same pattern of development as his earlier work on

amniocentesis, with one exception: his professional critics have been

joined by the federal government, which has invoked the coercive

force of the criminal sanction in a scientific debate.

In 1976, Dr. Jacobson established a private practice of medicine

in Vienna, Virginia, while continuing his research and teaching

activities. The bulk of Dr. Jacobson’s practice was devoted to

amniocentesis, but he also began treating private patients for

infertility, in accordance with theories he had developed from his

prior research.

Dr. Jacobson’s theory of infertility focused in part on the idea that

a substantial percentage of all pregnancies--much larger than

conventionally believed--end in spontaneous "abortion" (the medical

term for miscarriage) early in the term and without detectable signs,

as the fetus would "resorb" (re-absorb), meaning essentially to

dissolve within the uterus. Dr. Jacobson believed that this effect

occurs much more frequently in women with fertility problems, who

therefore are "habitual aborters.". Dr. Jacobson believed that he

could treat this condition by using the hormone HCG?*--which is

secreted by the human placenta during pregnancy--both to stimulate

ovulation (the release of the egg from the Fallopian tubes) and to

"support" the implantation and growth of the fetus after fertilization.

Dr. Jacobson applied his theories to develop a method of

infertility treatment involving multiple injections of HCG both

before ovulation and after fertilization. During the 12-year period

called into question by the government’s prosecution--from 1976

through 1988--he treated some 1,000 infertility patients by this

method, and achieved approximately 400 live births from this

group. Excluding multiple births to the same patient, Dr.

Jacobson’s success rate of about 30% was among the highest for any

infertility treatment, particularly considering that most of his

patients were referred from other physicians, many after having

been treated unsuccessfully by other fertility specialists.

Dr. Jacobson’s treatment was not the standard approach for

infertility, although it is difficult to speak of a "standard" during the

late 1970’s and early 1980’s, when infertility was still an emerging

field characterized by very rapid changes. The more common

treatment was to inject HCG/drug combinations to stimulate

ovulation, and to ignore the role of HCG after fertilization.

Ordinarily, the conflict between Dr. Jacobson’s approach and

rival theories would have been thrashed out over time in medical

journals and at scientific conferences, as clinical and experimental

data were accumulated, as had been the case with amniocentesis.

As we will show below, that process in fact has continued during

the proceedings in this case. As with amniocentesis, the scientific

process now is confirming the prescience of Dr. Jacobson’s

theories. However, in the meantime, a highly publicized legal

process--strangely involving the federal government--has intervened.

Media-Governmental Investigations

Though highly successful, Dr. Jacobson’s methods of infertility

treatment, like all others, leave a majority of patients disappointed.

One or more such patients contacted a local television reporter, who

ran an exposé-style media attack on Dr. Jacobson during 1988,

> HCG stands for human chorionic gonadotropin.

nanan +s or oe

Cae a pei na

which ultimately was picked up by the national "60 Minutes"

program. The thrust of the media attacks was that the unsuccessful

outcomes for the disappointed patients had involved “false”

pregnancies induced by Dr. Jacobson’s use of HCG.

Accompanying the media treatments were civil actions by former

patients, proceedings before the Virginia state medical board, and

a Federal Trade Commission action, which was brought in early

1989.4 In the meantime, however, the United States Attorney for

the Eastern District of Virginia had commenced a criminal

investigation. During this phase, a new type of allegation against

Dr. Jacobson surfaced, concerning the use of his own semen in

artificial inseminations of his patients. When publicly disclosed,

that allegation created a media frenzy, but actually has only

marginal significance in terms of substantive legal analysis, as it

formed the basis for only 4 of the 53 counts ultimately charged.

However, it had a major bearing on the manner in which the case

was investigated and tried by the government.

In pursuit of what became known as the “donor substitution”

aspect of the case, the government, after seizing the records of Dr.

Jacobson’s patients, apparently contacted all or most of the some 75

patients who successfully had delivered children after receiving

"donor" (non-husband) insemination between 1976 and 1988, and

sought to induce those patients to submit to DNA testing in an

attempt te match their children’s genetic characteristics to Dr.

Jacobson’s. Although the full scope of the government’s behavior

remains unknown to the defense, one of the patients came forward

shortly before trial, stating that the government falsely had told her

that there was a "genetic defect" in the sperm donor, and therefore

potentially in her child (see JA1548-60, 3132-35).

By whatever means, the government induced the parents to

submit 16 children to the DNA matching with Dr. Jacobson’s blood,

which also was seized by grand jury subpoena, and produced DNA

* All of these civil matters either remain pending or have been settled without

any finding of fault or misconduct on the part of Dr. Jacobson, including both the

state medical board and FTC actions. However, as a result of the settlement of the

civil government proceedings, Dr. Jacobson has withdrawn from the clinical

practice of medicine.

test results that "failed to exclude" Dr. Jacobson as the donor in 12

instances (see JA3235).

The Government’s Case Against Dr. Jacobson

By a 53-count indictment returned on November 19, 1991 (JA9-

94), and accompanied by a press release (JA2686-89), the

government charged Dr. Jacobson with 33 counts of mail fraud

under 18 U.S.C. § 1341, 10 counts of wire fraud under 18 U.S.C.

§ 1343, 4 counts of travel fraud under 18 U.S.C. § 2314, and 6

counts of perjury under 18 U.S.C. §§ 1621 & 1623,° all arising

from Dr. Jacobson’s practice of medicine.

The relationship between the conduct charged in the fraud counts

(Counts 1-47), and the use of the mails, wires, or interstate travel

was purely adventitious, consisting of such things as Dr. Jacobson’s

orders for HCG and pregnancy test kits (JA45-48), telephone calls

made to Dr. Jacobson’s office by patients (JASO-51), and the fact

that some of his patients resided outside Virginia (JA53). In terms

of the substantive conduct charged, the fraud counts fell into the two

Categories previously developed: (1) the "false pregnancy” theory,

comprising 43 of the 47 fraud counts; and (2) the “donor

substitution" theory, comprising 4 counts.

The "false pregnancy" theory was a direct attack on Dr.

Jacobson’s methods of infertility treatment, replete with medical

detail in the indictment about appropriate dosages of HCG,

Sensitivities of pregnancy tests, sonogram technology, the known or

speculated rates of miscarriage, and the like (JA14-33). In essence,

the "false pregnancy" theory was that the repeated injections of

HCG mimicked the signs of pregnancy and caused false positive

results in standard pregnancy tests, which are triggered by the level

of HCG in the urine, but that Dr. Jacobson somehow “knew” that

these particular pregnancies were "false," and misrepresented that

fact to his patients.° The indictment further alleges that Dr.

* The district court's jurisdiction was invoked under 18 U.S.C. § 3231.

* The indictment did not explain, and no subsequent development of this record

has explained, how Dr. Jacobson possibly could have separated the 10 patients

naméd in the indictment from any of the other 1,000 of his fertility patients, nor

even from the approximately 300 patients who delivered live births. An initial

RT ew a ee 6

Jacobson deliberately misread some of his sonographic examinations

of these women to find evidence of pregnancy when in fact they

were never pregnant, and fabricated the concept of “resorption” of

a miscarried fetus.

The second species of fraud alleged in the indictment is the

opposite of the first: that Dr. Jacobson succeeded in achieving a

pregnancy when he should not have. This is the “donor

substitution” theory of Counts 12-15 (JA33-37, 44) that attracted so

much interest from the media. Legally, this theory is a species of

fraud by "false promise," alleging that Dr. Jacobson’s assurance of

anonymity in donor inseminations should be interpreted to imply not

only that the patients would not know the identity of the donor--a

condition that indisputably was kept by Dr. Jacobson, and breached

only by the government’s intervention--but also that the donor

would not know the patients. The government’s theory is that this

latter aspect of the implied undertaking was breached by Dr.

Jacobson’s use of his own semen in some cases. Here again,

although the indictment could be read to imply that there were no

other donors, that interpretation is foreclosed by the government's

own DNA test results, which did exclude Dr. Jacobson’s paternity

in some cases.’

The six perjury counts of the indictment (Counts 48553) are tag-

alongs that charge Dr. Jacobson with committing perjury by

defending his theories and methods from attack in the prior civil

litigations brought by former patients and the FTC (JA54-94).

Proceedings in the District Court

The case was tried in February 1992, for 12 trial days involving

reading of this portion of the indictment in isolation might lead one to believe that

no patient ever achieved a pregnancy or a live birth from Dr. Jacobson’s treatment,

but that plainly is not the case, and it is contradicted by the second branch of the

government's theory.

’ Given that fact, this second theory also suffers from the defect--nowhere

cured in this record~of failing to explain how Dr. Jacobson possibly could have

formed the intent not to perform the promise at the time it was made, because it

again does not explain how %r. Jacobson was supposed to have chosen which

patents would have a “true” or “faise” donor.

112 witnesses, including 26 physicians or other experts.

At trial, the government’s case rested critically on the use of

expert opinion testimony to show Dr. Jacobson’s allegedly

"fraudulent" intent. The government’s experts contended that Dr.

Jacobson’s use of HCG was "excessive" had "no medical

justification" (JAi282-83, Dr. Margaret Damewood); they

characterized his theory of resorption was “a bunch of crap"

(JA892, Dr. Carl Douglas Lord), "beyond comprehension" (JA988,

Dr. Glenn David Braunstein), and “unthinkable” (JA1264, Dr.

Damewood). ~The government presented sonography experts to

disagree with Dr. Jacobson’s sonography results. In each instance,

the government experts’ opinions were disputed by qualified experts

called by the defense.*

Thus, the trial of this case presented a "battle of experts”

resembling a civil malpractice trial in a state court. But in fact it

was a Criminal trial in a federal court in which the defendant’s

liberty was allowed to turn simply on which side’s experts the jury

found more persuasive.

The district court also permitted the government to present 11

prosecution witnesses--the parents of the children involved in the

"donor substitution” charges--to testify in disguise and under

assumed names such as "Mrs. White" and "Mrs. Green,” and the

court directed that placards bearing the pseudonyms be erected in

front of the witness box for those witnesses only.’

* The two principal defense experts were both world-famous specialists from

the United Kingdom: (1) Dr. Robert F. Harrison (vitae at JA2942-85), at that time

the Secretary General of the International Fertility Societies and past Chairman of

the Infertility Task Force of the World Health Organization; and (2) Dr. Stuart

Campbell (vitae at JA2986-3063), at that time President of the International Society

of Ultrasound in Obstetrics and Gynaecology, and, according to Dr. Harrison's

tesumony, "the world’s expert" in sonography (JA1697). Both physician's

supported Dr. Jacobson’s treatment methods and diagnoses, and Dr. Campbell

reviewed some 180 sonograms made by Dr. Jacobson(see JA1912-2037,

JA2868(summary of findings as to prosecution witnesses)).

* These procedures had been ordered pursuant to a reported pretrial opinion

(16a-24a), in which the district court ruled that the defendant’s rights to confront

his accusers publicly either were preserved or outweighed by "the compelling and

overriding governmental interest in the psychological health of the [witnesses’]

iia aati i i

In instructing the jury, the district court rejected the defense’s

request for a definition of reasonable doubt (JA1069), as well as

several instructions proffered by the defense that would have

focused the jury’s attention on the distinction between fraud and

medical or scientific disagreement or mistake (JA1055-62)."°

Instead, the jury was charged under boilerplate instructions that

gave no recognition to the unique context of the case (JA2471-

2517),'! and that were, as a whole, consistent with the district

court’s view, expressed during trial, that the issues for jury

consideration included "whether there is such a thing as resorption

of a fetus"(JA1260)--one of the scientific theories in dispute.

With those instructions, the jury returned verdicts of guilty on all

52 remaining counts on March 4, 1992 (JA2518-20).'"* On May

8, 1992, Dr. Jacobson was sentenced to five years’ imprisonment

on each count, to run concurrently (JA2614), plus various monetary

penalties totalling some $120,000 (JA2613, 2616-17). Seventeen of

the 52 counts of conviction were subject to the sentencing

guidelines, while the remaining 35 counts were subject to sentencing

only under pre-guidelines law. Nonetheless, all of the relevant

conduct underlying all 52 counts was considered in applying the

guidelines, producing an offense levei of 20 and corresponding

imprisonment range of 33-41 months, according to the presentence

children" (21a). According to the district court's reasoning, "[i]f such a parent’s

(rue identity were disclosed in open court, it is likely that the child of this parent

would learn the truth of his or her paternity." (21a). Pursuant to that opinion, the

defense also was placed under a protective order prohibiting the disclosure of any

information that could lead to the identification of these witnesses as witnesses in

the Jacobson trial (25a-26a), thus, in practical effect, preventing the defense from

conducting a thorough background investigation of the witnesses.

The defense also moved for a judgment of acquittal as a matter of law

(JA2522-32), which was denied (JA2567).

'' Even on this basis, the instruction on good faith was so garbled that it said

the opposite of the correct law (JA2497-98). On appeal, the government moved

to alter the transcript, but that motion was denied provisionally (15a), and then

apparently overlooked by the panel opinion. When the matter was brought to the

panel's attention on rehearing, it was disregarded.

The government withdrew one of the mail fraud counts prior to trial.

report.’ But in sentencing Dr. Jacobson to 60 months, the district

court departed upward by five additional offense levels and

approximately 50% from the maximum guideline sentence, based

primarily on letters received from Dr. Jacobson’s former patients

describing what the court interpreted as “extreme psychological

injury” under §5K2.3 of the guidelines (JA2668-74).

Proceedings in the Court of Appeals

Dr. Jacobson appealed to the Fourth Circuit on May 15, 1992

(JA2685). On September 3, 1993, his convictions and sentences

were affirmed in an unpublished per curiam opinion by a panel of

the court of appeals (la-11a). The panel’s opinion failed to address

most of the issues briefed and argued by the parties on appeal,

including the first five issues raised by this Petition, all of which

were raised, among others, in the court of appeals.

Instead, the court of appeals’ decision discusses only two points:

(1) whether the charged conduct satisfied the federal jurisdictional

means of relationship to the use of the mails, wires, or interstate

travel under this Court’s prior decisions (a-a), which had consumed

only about 2 out of the 130 pages of main briefing by the parties;'*

and (2) whether the upward departure on sentencing was warranted

(a-a). Otherwise, the panel decision states that "“Jacobson’s

remaining assignments of error are wholly without merit and

therefore warrant no discussion on our part" (lla & n.6)."°

'’ The defense objected to the presentence report on the grounds, inter alia, that

a correct application of the guidelines would produce an offense level of 12, or 10

after considering acceptance of responsibility (JA3443-57).

‘* Pursuant to requests by both sides, the court of appeals had granted leave to

file oversized main briefs of 65 pages each (12a-i4a).

' On September 17, 1993, Dr. Jacobson moved for rehearing of the panel's

decision on the grounds that the panel had not resolved an open question on the

content of the jury instructions given below (see note 11 above), had overlooked

the applicability of prior decisions this Court, and had created intra-circuit and

intercircuit conflict on the standards governing upward departures from the

sentencing guidelines. Dr. Jacobson further suggested rehearing in banc, on the

basis of the importance of the issues presented and the failure of the panel opinion

to address the main points argued by the parties.

Although the court of appeals’ opinion therefore provides very

limited legal analysis of the questions presented, its restatement of

the case demonstrates the centrality of the disputed expert opinion

testimony to the government’s theory:

“Although HCG is legitimately used in the

treatment of infertility, the Government’s proof

tended to show that Jacobson overexposed his

patients to the hormone... ."

(a). Thus, the court of appeals’ own statement confirms that the

federal criminal fraud statutes now have become a means for federal

supervision of a practicing physician’s selection of the precise

dosage and administration of a completely lawful substance properly

used in medical treatment, with the physician subject to

incarceration for exceeding the government-prescribed dosage,

determined after the fact by a jury’s choice among competing

scientific opinion testimony. Whether that theory is a tolerable basis

for applying the federal criminal fraud statutes is the threshold

question presented by this Petition.

The Progress of Medical Science

While this case has been pending, new medical studies validating

Dr. Jacobson’s theories are being published in scientific journals.

In April 1992--the month between Dr. Jacobson’s conviction in

March and his sentencing in May--an article on reproductive

medicine appeared in Archives of Pathology and Laboratory

Medicine, stating that post-fertilization administration of hormones--

including HCG and progesterone--was "known to affect implantation

and further development of the implanted embryo,” and therefore

"many clinics support the luteal [post-fertilization] phase of

stimulated [hormone-induced] cycles with progesterone or human

chorionic gonadotropin [HCG], even though the value of such

After requesting and receiving a response to the rehearing motion from the

government, the court of appeals denied rehearing and rehearing in banc on

November 8, 1993 (27a).

treatment has not been adequately documented."'® Further

documentation appeared in a July 1992 paper in Fertility and

Sterility, reporting a new study conducted showing that "[rJepetitive

administration of hCG during early gestation in cases that are at

high risk of luteal inadequacy may significantly decrease the

pregnancy wastage rate."'’ In the following month of August

1992, researchers at the University of Texas reported empirical

findings that repeated, consecutive injections of stimulating

hormones “are not detrimental and may, in fact, result in increased

cycle fecundity [fertility]."'* These were exactly Dr. Jacobson’s

theories--what the government’s expert witnesses called "without

medical justification” at trial, and the government’s prosecutor

called a "fraud" and a “scheme"--and yet they are now being borne

out by empirical research, and are now appearing in standard

medical texts.’

Similarly, new research has further documented the high

incidence, especially in patients undergoing infertility treatment, of

spontaneous abortion and "resorption." Indeed, even the

ai: Moghissi & R. Leach, Future Directions in Reproductive Medicine,

116 Arch Pathol Lab Med 436 (April 1992).

" Z. Blumenfeld & M. Ruach, Early Pregnancy Wastage: The Role of

Repetitive Human Chorionic Gonadotropin Supplementation During the First 8

Weeks of Gestation, 58(1) Fertil Steril 19 (Jul 1992).

'’ K.M. Silverberg, et al., Consecutive versus Alternating Cycles of Ovarian

Stimulation Using Human Menopausal Gonadotropin, 7(7) Hum Reprod 940

(August 1992).

'9 See J. Bonner, 17 Recent Advances in Obstetrics and Gynaecology 151

(1992); see also R.F. Harrison, New Solutions to an Old Problem: hCG in the

management of habitual and threatened abortion (Excerpta Medica 1991).

Harrison's 1991 monograph concludes by noting that "[e]xperimentation is . .

confirming its [HCG's] validity and it is therefore to be anticipated that ongoing

and future research will . . . determine precise optimal dosages," id. at 15.

” A British study published in April 1992 found a 48% disappearance rate--

based on sonographically-identified fetuses-in the “vanishing twin" type of

resorption, which has been known for many years but previously was thought to

be much rarer. Z. Blumenfeld & M. Dirnfeld, Spontaneous Fetal Reduction in

Multiple Gestations Assessed by Transvaginal Ultrasound, 99(4) Br J Obstet

SCL ad nO

Nx MOE A i NS AMP REL ta? tat et tae, Bed pal ARE A A ER EO

government’s own expert witnesses may now be thinking the

"unthinkable." Government expert Dr. Damewood, who testified

at trial in February 1992 that Dr. Jacobson’s use of HCG was

"without medical justification" and his theory of resorption

“unthinkable,” presented a paper at a June 1993 medical conference,

in which she acknowledged that the use of HCG alone is capable of

achieving results comparable to the natural ovulation process.”

We refer to these facts here not so much to impeach the fact-

findings in the courts below--although they certainly are an

embarrassment to the American judicial process--but rather to

illustrate the sheer folly of any legal rule that purports to determine

the liberty or incarceration of any individual on the basis of the

legal determination of ultimate scientific "truth" or an official view

of what is or is not, in the word of the government expert Dr.

Damewood, “unthinkable.” In a free and open society, everything

must be "thinkable"--no matter how unattractive the thought, or the

thinker--and thoughts must not be punished.

Nor do we believe that this Court has ever endorsed a view that

includes an official determination of scientific “thinkability" as a

criterion for criminal punishment. To the contrary, we believe that

the prior decisions of this Court reject any such concept as part of

American law. But legal principles are only as strong as the

willingness of the judiciary to affirm and enforce them, even--and

perhaps especially--in unattractive circumstances.

Gynaecol 333 (April 1992); see also A. Nelich, J. Wisser, & S. Krone, Placental

Findings in "Vanishing Twins", 52(4) Geburtshilfe Frauencheilkd (Germany) 230

(April 1992). Newly published research findings excluded from evidence by the

district court in this case, but appearing in a peer-reviewed scientific journal,

report a high rate of resorption (27%) in single pregnancies of assisted conception.

V. Beral, et al, Outcome of Pregnancies Resulting from Assisted Conception, 46(5)

Br Med J 753 (1990)(JA2758-66).

*'M.D. Damewood, “Disappearance Rates of Exogenously Administered HCG

or Endogenous LH," presented in The Triggering of Ovulation in Stimulated

Cycles: HCG or LH?, Bourdeaux, France, 19-20 June 1993, available through

Scientia abstracts.

REASONS FOR ALLOWING THE WRIT

I. This Court Should Review the Applicability of the Federal

Mail, Wire, and Travel Fraud Statutes to Regulate the

Professional Practice of Medicine, Which Has Never Been

Subjected to Direct Federal Regulation under Any Federal

Statute.

We are now in the midst of a great national debate over the

proper role of the federal government in our health care system. If

new legislation is enacted by Congress, it is likely to make delicate

tradeoffs in the various social interests invoived, including the

relationships among federal regulation, state regulation, and the

autonomy of the medical profession and its patients. But if the

theory of prosecution in this case is correct, the Congress should not

bother with those considerations, because they were resolved sub

silentio--in favor ot federal preemption at the initiative of criminal

prosecutors--by 1872 legislation that everyone thought at the time

was limited to the use of the mails to perpetrate commercial frauds.

For that is essentially the government’s theory of prosecution in

this case: that the malleable language of the mail fraud and related

statutes should be applied to federalize the regulation of yet another

field of activity traditionally reserved to state law--in this case, the

practice of medicine--and to do so not by administrative or civil

means, or carefully balanced legislative design, but rather by ad hoc

criminal charges by federal prosecutors. Permitting that theory of

federal criminal prosecution has profound implications for the

balance of power between federal and state law, and raises

important questions of constitutional dimension concerning the

authority of any government--state or federal--to interfere in the

physician-patient relationship. Those questions should be reviewed

by this Court before this case becomes the prototype for an entirely

new expansion of the scope of federal criminal law.”

= This agenda was made explicit by the United States Attorney in remarks to

the media following Dr. Jacobson’s sentencing:

“We are pleased with the sentence. . . . The vast majority of

doctors conduct their practice in an honorable and ethical

fashion. This prosecution demonstrates, however, that when

Ui coral

The key legal distinction to be made in this case--and the one that

the lower courts here refused to make--is the distinction between a

sensible, administrable definition of fraud under the federal criminal

fraud statutes and the improper federal regulation of medical

practice. The Petitioner’s point here is not that physicians as a class

are "immune" from federal prosecution, but rather that the federal

mail fraud statute cannot be applied in such a manner as to create

substantive federal standards of professional medical practice,

punishable by imprisonment for deviating from the "official" version

of medicine.

The government’s charges in this case sought to establish

substantive federal regulation of medical practice. The

government's "false pregnancy” theory was founded othe notion,

as endorsed by the court of appeals, that Dr. Jacobson

“overexposed” his patients to the HCG hormone, that he

misdiagnosed sonograms, and that he misdiagnosed "resorption."

All of these points require the premise that there is an underlying

substantive standard of medical practice supplied by the mail fraud

Statute itself, which thereby becomes the vehicle for establishing--as

a matter of federal criminal law--an “acceptable” dosage of HCG,

a permissible range of interpretation of sonograms, and a constraint

on "thinkable” theories of miscarriage, or, as the district court put

it, a determination whether "there is such a thing as resorption.”

Even if limited to the idea that Dr. Jacobson should have been more

guarded in his diagnoses--as, for example--by disclosing the

prospect of “false positive" pregnancy test results, due to the HCG

injections--the government’s theory still invests the federal mail

fraud statute with a substantive regulatory standard, by specifying

the requisite contents of a federalized and criminalized version of

the informed consent doctrine. Similarly, the government’s "donor

a doctor lies to his patients about matters of fundamental

importance he will be subject to prosecution, conviction, and

imprisonment."

PR Newswire, May 8, 1992 (Remarks of Mr. Cullen). There could be no more

explicit statement of the government’s design to use the mail fraud statute to

federalize and criminalize regulation of the practice of medicine in accordance with

prosecutors’ notions of what is “honorable” or “ethical.”

substitution" theory also sets a federalized standard of required

disclosures within the physician-patient relationship.

It may be tempting to view these matters as_ fact-bound

considerations or jury questions. But that cannot be the case,

because law is defined by what and how juries are instructed to

decide. Where, as here, a jury is permitted to decide, solely on the

basis of a federal statute and without constraining instructions, that

a physician’s prescription was an "overdose" or that a physician’s

diagnosis was "unacceptable" or "unthinkable," then the submission

of such questions to a jury is a legal decision that imposes a

substantive federal standard on medical practice itself. Allowing a

jury to make such decisions in a federal criminal case is a wholly

unprecedented interpretation of federal law, and one that would

displace vast areas of state regulatory and civil tort law.

To illustrate the sweeping effect on state law, consider the

everyday occurrence of a physician’s prescription of a medical test

or treatment involving a potential adverse reaction that is rare but

serious when it does occur. Under the previously prevailing

standards of the informed consent doctrine in most states’ tort law,

the physician would be expected to exercise her or his professional

medical judgment as to what risks will be disclosed to the patient,

and may responsibly decide not to disclose the rare adverse reaction,

without liability.’ | Nonetheless, the physician in fact is

"concealing" the truth, and therefore, under the prosecution’s theory

in this case, committing a "fraud." As against this standard,

enforced by the threat of federal incarceration, the state law

standards and their balance of competing social policies become

completely irrelevant to the physician’s conduct, which is now

dominated by the threat of federal criminal prosecution.

There is no indication that Congress ever intended the mail, wire,

and travel fraud statutes to be applied in this manner. Nor are we

aware of any prior case in which those statutes have been applied to

regulate in any way the professional practice of medicine. Prior

prosecutions under those statutes have been limited either to

commercial marketing of medical products outside the scope of

*’ See, for example, the statement of Virginia's doctrine in Bly v. Rhoads, 216

Va. 645, 650 (1976).

Wain deo me :

medical practice, or to third-party payment frauds under such

programs as Medicare and Medicaid, and in no case have involved

a direct challenge to a physician’s diagnosis or treatment.

Furthermore, there also is no prior case in which a physician has

been convicted of any federal crime whatsoever based upon conduct

within the professional practice of medicine, with the possible

exception of the Prohibition statutes enacted under the special

authority of the Eighteenth Amendment.“ Aside from that

exception, no federal statute has ever been held to embrace a

Congressional intent to regulate the practice of medicine as such.

To the contrary, both this Court and other federal courts

consistently have interpreted federal statutes to exclude such an

intent, even under sweeping statutory language.

The issue has arisen under federal statutes regulating narcotics

and prescription drugs. Under the former Harrison Act regulating

narcotics, this Court, stating that "direct control of medical practice

in the States is beyond the power of the Federal Government,"

Linder v. United States, 268 U.S. 5, 18 (1925), reversed the

conviction of a physician for prescribing drugs to an “addict,” on

the grounds that the indictment was defective for failing to show

that the physician "dispensed the drugs otherwise than in the course

of his professional practice or for other than medical purposes," id.

at 17. The same issue was presented under more recent federal

narcotics legislation in United States v. Moore, 423 U.S. 122

(1975), where this Court followed the same approach, upholding a

physician's conviction only on the basis of specific jury instructions

requiring that the physician’s conduct be shown to have "exceeded

the bounds of ‘professional practice,’" id. at 124. Thus, even under

Statutes specifically drawn to regulate narcotics prescriptions, this

Court's decisions require that the physician’s conduct first be shown

not to constitute the professional practice of medicine at all, under

any theory; they do not permit the government to second-guess the

physician’s medical judgments as a basis for criminal liability.

** Even this exception proves the rule. In Lambert v. Yellowley, 272 U.S. 581

(1926), this Court declined to enjoin the medical restrictions in the National

Prohibition Act, on the ground that Congress’s power to enforce the Eighteenth

Amendment was equivalent to the police power of the states, see id. at 596.

Similarly, under the otherwise sweeping regulation of prescription

drugs found in the federal Food, Drug, and Cosmetic Act, 21

U.S.C. § 321 et seq., there is an established "practice of medicine"

exception, articulated by the FDA” and recognized in the federal

courts,’* that construes the Act to exclude any intent to limit or

regulate in any way the permissible dosage and administration of

drugs by a physician in the course of the professional practice of

medicine. Under this interpretation, physicians are free to prescribe

dosages and uses of drugs in their practice that have not been

approved by the FDA, and therefore would constitute "misbranding"

or “adulteration” violating the Act outside the context of medical

practice. Note that this established rule is exactly the opposite of

the theory of prosecution in this case, which is that Dr. Jacobson

could be convicted precisely because he prescribed “excessive”

dosages of HCG.

As applied in this case, these authorities raise the question

whether Congress, having carefully excluded the federal regulation

of medical practice from statutes governing narcotics and

prescription drugs, nonetheless intended to upset that delicate

balance by authorizing open-ended regulation of medical practice

through criminal prosecutions under the mail, wire, and travel fraud

Statutes.

Moreover, if such an application were permissible as a matter of

legislative intent, it would raise the constitutional questions whether

the statutes, as so applied, were void for vagueness--as failing to

give fair notice of the conduct prohibited’’--or overbreadth--as

*> Food and Drug Administration, Legal Status of Approved Labeling for

Prescription Drugs; Prescribing for Uses Unapproved by the Food and Drug

Administration--Notice of Proposed Rulemaking, 37 Fed. Reg. 16,503 (1972).

*® See, e.g., United States v. Evers, 453 F. Supp. 1141 (M.D. Ala. 1978),

aff'd, 643 F.2d 1043 (Sth Cir. 1981); Chaney v. Heckler, 718 F.2d 1174, 1180

(D.C. Cir. 1983), rev'd on other grounds, 470 U.S. 821 (1985); United States v.

Algon Chemical Inc, 879 F.2d 1154 (3d Cir. 1989).

” See United States v. Siegel, 717 F.2d 9, 23-25 (2d Cir. 1983)(Winter, J.,

dissenting); Bradley, Foreword: Mail Fraud After McNally and Carpenter: The

Essence of Fraud, 79 J. Crim. L. & Criminology 573, 620-21 (1988); Podger,

Mail Fraud: Opening Letters, 43 S.C.L. Rev. 223, 236-39, 267-71 (1992).

creating a chilling effect on the exercise of the constitutionally

protected rights of both patients and physicians.” In a long line

of authority extending back to its decision in Griswold v.

Connecticut, 381 U.S. 479 (1965), this Court has recognized

procreative privacy as a fundamental right to be protected against

governmental encroachments, enforceable by patients or their

physicians, see Griswold, 381 U.S. at 480-81. In the most recent

of those decisions, this Court further recognized that governmental

regulation of the information conveyed between physician and

patient in the context of procreative decisions also implicates "the

physician’s First Amendment rights," Planned Parenthood v. Casey,

- U.S. -, 112 S. Ct. 2791, 2824 (1992). It would indeed be ironic

if patients and physicians seeking to create and sustain life were held

to have less constitutional privacy than those seeking abortion. But

that is the tenor of the court of appeals’ decision in this case.

Il. This Court Should Review the Question Whether a Finding

of Criminal Scienter May Be Based Upon a Jury’s Choice

Between Conflicting Expert Opinions as to Matters of Scientific

Theory and Appropriate Medical Treatment.

The second question presented by this Petition is even more

fundamental that the first, because it questions the basic competence

of the legal process to render judgments of criminal liability by

purporting to resolve issues of ultimate scientific "truth." As this

Court recognized just last Term, in Daubert v. Merrell Dow

Pharmaceuticals, Inc., - U.S. -, 113 S. Ct. 2786 (1993), science

itself does not purport to establish immutable truth, but rather is

characterized by a process or method for formulating testable

hypotheses about observable phenomena, see id. at 2795-97. Thus,

no legal process rationally could rest a determination of ultimate

“truth” entirely on scientific opinion testimony, especially where

scientific opinion is divided. This fundamental rule of logic was

recognized long ago by this Court, and it is violated by the decision

below.

** See United States v. Margiotta, 688 F.2d 108, 139-44 (2d Cir. 1982)(Winter,

J. dissenting), Coffee, The Metastasis of Mail Fraud: The Continuing Story of

White Collar Crime, 21 Am. Crim. L. Rev. 1, 13-17 (1983).

The issue arises here because of the manner in which the

government sought to prove Dr. Jacobson’s alleged criminal intent

by reference to expert opinion testimony attacking Dr. Jacobson’s

medical and scientific theories. The government apparently

reasoned that if it could show Dr. Jacobson’s theories to be

objectively “unreasonable,” then the jury would be permitted to

draw the inference that Dr. Jacobson himself did not believe his

own theories, and therefore was "defrauding" his patients (on the

fraud counts) and "perjuring” himself when he expressed his belief

in his theories (on the perjury counts). Of course, this line of

argument is fatally flawed in any event--because the government

experts’ opinions are completely incompetent to show Dr.

Jacobson’s state of mind.*? But entirely aside from that point, the

government's theory is foreclosed as a matter of law by this Court's

prior decision in American School of Magnetic Healing v.

McAnnulty, 187 U.S. 94 (1902), which construed the mail fraud

statute to exclude such theories.

In Magnetic Healing, this Court construed the civil branch of the

same statute now codified in part as 18 U.S.C. § 1341, and

therefore the case is directly applicable here.” It involved the

Postmaster General’s administrative authority to enter a “fraud

order" interdicting the delivery of mail. The Postmaster had

determined that the School was engaged in a fraud by promoting a

course of instruction in "thought healing,” see 187 U.S. at 103.

*? See Fed. R. Evid. 704(b). In any event, none of these physicians were given

an opinion as to actual state of mind, and never purported to have first-hand

knowledge of anything that Dr. Jacobson did or thought.

Revised Statutes of 1873, which had been enacted as § 300 of the Act of June 8,

1872, ch. 335, 17 Stat. 322-23. The following section of that same Act, § 301,

was the original source for 18 U.S.C. § 1341. See McNally v. United States, 483

U.S. 350, 357 & n.5 (1987); Rakoff, The Federal Mail Fraud Statute, 18

Duquense L. Rev. 771 (1980). In 1909, the predecessor of § 1341 was amended

to codify this Court's holding in Durland v. United States, 161 U.S. 306 (1896),

by adding the language "or for obtaining money of property by means of false or

fraudulent pretenses, representations, or promises,” Act of March 4, 1909, ch.

321, § 215, 35 Stat. 1130, thereby making the criminal prohibition coterminous in

language with the fraud order provisions construed in Magnetic Healing.

This Court set aside the fraud order as a matter of law, on the

ground that the statutes "were not intended to cover any case of

what the Postmaster General may think to be false opinions, but

only in cases of actual fraud in fact, in regard to which opinion

formed no basis." 187 U.S. at 106.

The continuing authority of Magnetic Healing again was

considered by this Court in Reilly v. Pincus, 338 U.S. 269 (1949),

which reaffirmed Magnetic Healing as "a wholesome limitation

upon findings of fraud under the mail statutes when the charges

concern medical practices in fields where knowledge has not yet

crystallized in the crucible of experience," because "[i]n the science

of medicine, as in other sciences, experimentation is the spur of

progress." 338 U.S. at 274. Although the Court in Reilly set aside

the fraud order in that case--involving the efficacy of kelp as a

weight-reducing aid--it left open the question whether a fraud order

could have been entered by resolving a "slight" conflict in medical

opinion, see id. at 274, or required “universality of scientific

belief" against the claims made, see id. at 276.

Of course, Magnetic Healing and Reilly were both civil cases.

But they construed the same statute at issue here, and their doubts

about the omniscience of legal fact-finding apply a fortiori to a

criminal prosecution, especially a criminal prosecution attacking a

physician’s medical judgment, as contrasted with the commercial

promotions involved in those cases. As the decision below in this

case refused to recognize any limitation on the fact-finder’s

competence to resolve differences of scientific opinion, that decision

is in direct conflict with this Court’s prior decisions in Magnetic

Healing and Reilly, which justifies review in this Court.

Furthermore, the questions left open in Reilly, and the importance

of the legal and scientific context of this case, also justify review on

this question. There is no doubt that there was more than merely

a “slight” difference of expert opinion displayed at trial, with world-

famous experts testifying for the defense with advance information

on the support for Dr. Jacobson’s theories now appearing in

scientific literature around the world. Due to the media

sensationalism surrounding this case, which continues even now,

the world scientific community is watching what happens here.

This Court now has an opportunity to make a statement about the

use of the federal fraud statutes to mount a civil-style "battle of

experts" to litigate scientific issues in a criminal trial. The

implements of decision are at hand. This Court’s prior decisions in

Magnetic Healing and Reilly provide the framework. The Court’s

recent decision in Daubert provides an appropriate basis for

establishing a level of scientific difference of opinion that would

foreclose a criminal prosecution on these grounds, and thereby

avoid a chilling effect on scientific inquiry.

III. This Court Should Resolve the Conflict Among Circuits on

the Propriety of Jury Instructions Defining Reasonable Doubt.

One of the cornerstones of American criminal procedure is the

requirement that guilt be proved beyond a reasonable doubt, which

this Court has held to required by the Due Process Clause, /n re

Winship, 397 U.S. 358 (1970). And yet, there is now a continuing

conflict among the circuits on the question whether a criminal

defendant has the right to an instruction defining reasonable doubt

for the jury, which was denied to the defendant in this case. This

Court should grant review to resolve the conflict of authority on this

important question.

In refusing Dr. Jacobson’s request for an instruction defining

reasonable doubt, the district court here was following an

established line of Fourth Circuit authority admonishing “district

courts not to attempt to define reasonable doubt in their instructions

to the jury," United States v. Headspeth, 852 F.2d 753, 755 (4th

Cir. 1988). The Seventh Circuit is even more hostile to the idea,

holding that reasonable doubt should never be defined, even when

the jury requests such an instruction.” None of the other circuits

follows this type of per se rule against a definition.

Instead, the other circuits are arrayed across a continuum of

views on when and how reasonable doubt should be defined. The

First Circuit permits a definition, and recognizes that defendant is

entitled to an instruction that "adequately apprises” the jury of the

reasonable doubt standard.” The Ninth Circuit follows a similar

*' United States v. Blackburn, 992 F.2d 666, 668 (7th Cir. 1993).

* United States v. Campbell, 874 F.2d 838, 842 (1st Cir. 1989).

view,” although it has a local pattern instruction.“ The Second

Circuit instructs its district courts to give a standard definition that

it has approved.** The Fifth, Sixth, Eighth, and Eleventh circuits

all have local pattern instructions that are approved by their courts

of appeals.”

This conflict among the circuits is well developed and widely

recognized,”’ and can be resolved only by this Court.

IV. This Court Should Review the Constitutional Propriety of

Anonymous Testimony by Disguised Adult Witnesses.

The extraordinary nature of the theory of prosecution here is

matched by the wholly extraordinary procedures adopted at trial,

where the district court permitted accusing witnesses to appear in

disguise and under obviously fictitious names, to support the

already-sensationalized "donor substitution" charges that Dr.

Jacobson was the biological father of the witnesses’ children. This

Court should review the question whether these procedures are

consistent with the defendant’s rights under the Fifth and Sixth

Amendments to a fair trial, a public trial, and confrontation of his

accusers.

This Court recently has emphasized that the core requirement of

the Sixth Amendment right of confrontation is "a face-to-face

meeting with witnesses appearing before the trier of fact," Coy v.

Iowa, 487 U.S. 1012, 1016 (1988). In this case, Dr. Jacobson’s

accusers were permitted to hide their faces, and their identity, from

* United States v. Nolasco, 926 F.2d 869 (9th Cir. 1991).

* Manual of Model Criminal Jury Instructions for the Ninth Circuit § 3.03

(1992).

** United States v. Delibac, 925 F.2d 610 (2d Cir. 1991)

* United States v. Shaw, 894 F.2d 689 (Sth Cir. 1990); United States v

Alonzo, 681 F.2d 997 (Sth Cir. 1982); United States v. Kirby, 838 F.2d 189 (6th

Cir. 1988), United States v. Conley, 523 F.2d 650 (8th Cir. 1975); United States

v. Dilg, 700 F.2d 620 (11th Cir. 1983).

” See Federal Judicial Center, Pattern Criminal Jury Instructions 28-29 (1988);

| Devitt, Blackmar, Wolff & O'Malley, Federal Jury Practice and Instructions §

12.10 (4th ed. 1992).

the trier of fact and from public scrutiny, thereby invading the core

protections of both the Confrontation Clause and the Public Trial

Clause, which similarly proceeds from the view public testimony

"encourages witnesses to come forward and discourages perjury,”

Waller v. Georgia, 467 U.S. 39, 46 (1984); see also In re Oliver,

333 U.S. 257, 270 (1948). At the heart of both of these

constitutional protections is the recognition that it is always easier

to accuse anonymously; that is precisely why the constitutional

protections exist.

Furthermore, in this case the invasion of the Sixth Amendment

protections was permitted under procedures and circumstances that

only enhanced the prejudicial effect to Dr. Jacobson, and thereby

impaired his right to a fair trial under the Due Process Clause of the

Fifth Amendment. By permitting the anonymous testimony, and

then underscoring its existence by requiring the placards bearing the

assumed names, the district court gave official sanction in the jury's

mind to the perception that mere biological relationship to this

criminal defendant was so stigmatizing that it had to be hidden.*

We are unaware of any case in which accusatory testimony has

been permitted under anything approaching the circumstances of this

case. This Court’s recent decisions in Coy and in Maryland v.

Craig, 497 U.S. 836 (1990), both address the application of the

Confrontation Clause to in-court testimony by child witnesses. In

this case, the children were neither witnesses nor were they victims,

unless the children were deemed to be victims of “wrongful life.”

Moreover, the entire issue was created by the government itself,

which went to great lengths to overcome the anonymity that the

patients had requested and Dr. Jacobson had protected. There was

an obvious alternative to infringing upon Dr. Jacobson’s

constitutional rights--simply dropping 4 "donor substitution" counts,

and trying the remaining 48 counts--which would not have harmed

the government’s "interest" in obtaining a conviction, even if such

an interest could be weighed against the constitutional right, see

* Indeed, this was essentially the district court's rationale for permitting the

anonymous testimony: that the witnesses’ children--who were not witnesses--had

to be protected from the “psychological harm" (21a) that might result if they

learned of their possible relationship to the defendant.

Maryland v. Craig, 497 U.S. at 860, 867-70 (Scalia, J., dissenting).

Thus, the additional question presented here is whether the

defendant’s constitutional rights could be abridged by the

government’s unilateral actions in initially invading the patients’

rights to procreative privacy.

- This case is appropriate for review in this Court because it

presents a dilution of the constitutional rights to confrontation,

public trial, and fair trial that is somewhat worse that the abuses

envisioned by the dissenters in Maryland v. Craig, as it does not

involve a child witness at all. The court of appeals was wholly

insensitive to the issue (see 1la & n.6), and therefore the district

court’s reported opinion now stands as the only law on the subject,

and it implies that there is no constitutional restriction on

anonymous accusation by disguised witnesses.

Vv. This Court Should Resolve Emerging Conflicts Among the

Circuits Regarding the Appropriate Standards for Upward

Departures from the Federal Sentencing Guidelines.

In this case, Dr. Jacobson’s sentence to five years’ imprisonment

reflects a significant upward departure from the sentencing

guidelines, based upon findings that were not supported by

admissible evidence and reflecting an extent of departure that was

not justified by analogy to any portion of the sentencing guidelines.

The court of appeals affirmed the sentence essentially on the view

that both the grounds for an upward departure and its permissible

extent were matters committed to the discretion of the district court.

This Court should review that decision, because the court of

appeals’ analysis conflicts with decisions in other circuits, and

because particularizing the standards governing upward departures

is centrally important to the realization of the determinate sentencing

System envisioned by the Sentencing Reform Act of 1984.

The court of appeals’ decision here reflects the problem in two

ways:

First, the court of appeals’s affirmance of the district court’s

upward departure for “extreme psychological injury" under

U.S.S.G. §5K2.3, based upon assertions contained in letters from

former patients, conflicts with the Third Circuit’s decision in United

States v. Kikumura, 918 F.2d 1084 (3d Cir. 1990). Kikumura held

that in cases of significant upward departure--unlike ordinary

sentencing decisions--"factual findings must be supported by clear

and convincing evidence, and hearsay statements may not be

considered unless their reliability is established by other evidence,"

id. at 1103.° As in Kikumura, the court here made its key

departure finding on the basis of unverified hearsay.

Second, and more fundamentally, the court of appeals’ decision

here deepens an ongoing division of authority among the circuits on

how the statutory "reasonableness" criterion of 18 U.S.C. § 3742(e)

will be applied to limit the extent of upward departures. With the

decision here, the Fourth Circuit has joined with the First and Sixth

Circuits in applying an unstructured and highly deferential

standard,” while the Second, Third, Fifth, Seventh, Ninth, Tenth,

and Eleventh circuits follow a stricter "analogical" approach

requiring that the extent of an upward departure be justify by

analogy to other provisions of the sentencing guidelines.*' The

choice between those two approaches is important to the viability of

* The court in Kikumura itself recognized “overwhelming authority in our

sister circuits” for the preponderance standard generally, id. at 1101, but

distinguished the situation of a significant upward departure. The subsequent

history of Kikumura is mixed: it appears to be followed in the Seventh Circuit,

United States v. Trujilo, 948 F.2d 313 (7th Cir. 1991), rejected or at least limited

in the Ninth Circuit, United States v. Sanchez, 967 F.2d 1383 (9th Cir. 1992), and

questioned in the D.C. Circuit, United States v. Lam, 966 F.2d 682 (D.C. Cir

1992).

“ United States v. Diaz-Villafane, 874 F.2d 43 (1st Cir. 1989); United States

v. Benskin, 926 F.2d 562 (6th Cir. 1991). Prior to the decision in this case, the

Fourth Circuit had professed adherence to the analogical approach in United States

v. Hummer, 916 F.2d 186, 194 & n.7 (4th Cir. 1990), but had begun to back away

from that position in United States v. Glick, 946 F.2d 335, 339 (4th Cir. 1991),

which read Hummer as permitting an unstructured “abuse of discretion" standard.

With the decision below here, which was not modified on rehearing when the intra-

circuit conflict was called to the court's attention, the transformation is complete.

*' United States v. Kim, 896 F.2d 678, 684-85 (2d Cir. 1990); United States

v. Kikumura, 918 F.2d 1084, 1111 (3d Cir. 1990); United States v. Landry, 903

F.2d 334, 340-41 (Sth Cir. 1990); United States v. Ferra, 900 F.2d 1057 (7th Cir.

1990); United States v. Pearson, 900 F.2d 1357, 1362 (9th Cir. 1990); United

States v. Strickland, 941 F.2d 1047 (10th Cir. 1991); United States v. Schuman,

902 F.2d 873 (11th Cir. 1990).

determinate sentencing, for an overly deferential approach would

restore the prior regime of virtually unlimited sentencing discretion.

Accordingly, the question warrants review by this Court.

VI. This Court Should Resolve the Circuit Conflict on the

Constitutionality of Dual Guidelines and Pre-Guidelines

Sentences Based Upon the Same Conduct.

The decision below conflicts with the Ninth Circuit’s decision in

United States v. Niven, 952 F.2d 289 (9th Cir. 1991), which held

that dual sentencing for the same relevant conduct under both

guidelines and pre-guidelines law violates the Double Jeopardy

Clause.

The issue arises from the guidelines’ definition of "relevant

conduct" in a fraud case to require the consideration of all conduct

that was part of the same course of conduct or "common scheme or

plan," U.S.S.G. § 1B1.3(a)(2). As a result, in this case all of the

offense conduct--including all of the conduct underlying 35 of the

46 fraud counts that were not subject to guideline sentencing--was

considered in determining the guideline sentence, and thereby

produced both a higher guideline sentence and a duplicate pre-

guideline sentence for the 35 pre-guideline counts. This was the

precisely the situation held by the Ninth Circuit in Niven to create

double jeopardy.

The fact that all of the sentences are concurrent does not render

the error harmless, given that the effect of considering offense

conduct completed prior to the guidelines raises the guideline

sentence and therefore the actual time served. For this reason,

the sentence imposed also violates the Ex Post Facto clause under

the standards of this Court’s decision in Miller v. Florida, 482 U.S.

423 (1987).

* According to the presentence report, application of the parole guidelines to

Dr. Jacobson would have produced a time served in the range of 12-18 months

(JA3313), whereas the guideline range, before considering the upward departure,

was 33-41 months (JA3312). Therefore, excluding the 35 pre-guidelines counts

from the guidelines’ computation of "loss" and other sentencing factors relevant

under U.S.S.G. § 1F1.1 necessarily would have reduced the guideline sentence.

VII. This Court Should Review the Courts of Appeals’ Practice

of Issuing Unpublished and Unresponsive Decisions.

The court of appeals’ decision in this case is an aggravated

example of the growing tendency among the circuits to designate

large percentages of their decisions as “unpublished,” with a

predictable decline in the quality and responsiveness of appellate

justice. Here, the practice resulted in an opinion that fails to

address most of the main points raised and briefed extensively on

appeal--with the court’s permission (12a-13a)--including several

questions of first impression having wide legal and social impact.

Heretofore, the circuits have been left to their own devices,

resulting in non-uniform rules that have been criticized by

commentators in both concept and application.** Accordingly, this

Court should consider whether the courts of appeals require

supervision in formulating uniform standards for appellate

disposition of cases, especially federal criminal appeals.

Conclusion

For the reasons stated above, a writ of certiorari should issue to

review the judgment of the United States Court of Appeals for the

Fourth Circuit.

Respectfully submitted,

February 7, 1994

JEFFREY S. PARKER

3401 North Fairfax Drive

Arlington, Virginia 22201

(703) 993-8055

Counsel for Petitioner

Cecil B. Jacobson, Jr., M.D.

* See, e.g., Reynolds & Richman, An Evaluation of Limited Publication in the

United Siates Courts of Appeals: The Price of Reform, 48 U. Chi. L. Rev. 573

(1981); Reynolds & Richman, The Non-Precedential Precedent—Limited Publication

and No-Citation Rules in the United States Courts of Appeals, 78 Col. L. Rev.

1167 (1978); Note, Unreported Decisions in the United States Courts of Appeals,

63 Corn. L. Rev. 128 (1977).

APPENDIX

APPENDIX TO PETITION FOR WRIT OF CERTIORARI

1. Court of Appeals’ Decision on the Merits:

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

Vv. No. 92-5406

CECIL B. JACOBSON, JR., M.D.,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

James C. Cacheris, Chief District Judge.

(CR-91-474-A)

Argued: February 2, 1993

Decided: September 3, 1993

Before ERVIN, Chief Judge, and PHILLIPS and WILLIAMS,

Circuit Judges.

Affirmed by unpublished per curiam opinion.

COUNSEL: Argued: James Roscoe Tate, TATE & BYWATER,

LTD., Vienna, Virginia; Jeffrey S. Parker, Arlington, Virginia, for

Appellant.

Randy I. Bellows, Assistant United States Attorney, OFFICE OF

THE UNITED STATES ATTORNEY, Alexandria, Virginia, for

Appellee.

On Brief: Richard Cullen, United States Attorney, OFFICE OF

THE UNITED STATES ATTORNEY, Alexandria, Virginia;

Charles P. Rosenberg, Trial Attorney, UNITED STATES

DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

Unpublished opinions are not binding precedent in this circuit. See

1.0.P. 36.5 and 36.6.

OPINION

PER CURIAM:

Following trial by jury, Cecil B. Jacobson, Jr., M.D., was

convicted of fifty-two counts of fraud and perjury stemming from

a scheme to cozen patients at his fertility clinic. His direct appeal

presents numerous claims in which we find no merit. Accordingly,

his convictions and sentence are affirmed.

From 1976 to 1988, Dr. Cecil B. Jacobson, Jr. operated

Reproductive Genetics, Inc., in Vienna, Virginia. Although

Jacobson had no advanced training in infertility medicine, and did

not possess professional qualifications that would have enabled him,

under generally accepted medical standards, to hold himself out as

an infertility specialist, much of his practice involved the treatment

of barren women for infertility. His medical schooling, internship,

and residency training qualified Jacobson to practice solely as an

obstetrician.

Jacobson’s infertility treatments involved injections of Human

Chorionic Gonadatropin ("HCG"), a hormone derived from the

aa eceriareenaeneerniaaiaiieanti

urine of pregnant women, as a means of stimulating ovulation in

infertile women. Although HCG is legitimately used in the treatment

of infertility, the Government’s proof tended to show that Jacobson

overexposed his patients to the hormone, sometimes injecting it

continuously up to three times per week for a year or more.

Following repeated injections of HCG in massive dosages, many of

Jacobson’s patients experienced symptoms associated with

pregnancy: delayed menstrual periods, bloating, breast tenderness,

and nausea. According to testimony presented by the Government’s

witnesses at trial, the patients, for whom pregnancy had been deeply

desired and yet seemingly unattainable, became convinced that

Jacobson had worked wonders for them through his HCG

treatments. In fact, Jacobson never informed these women that their

symptoms were the natural consequence of the HCG injections, not

proof of pregnancy. His regular use of HCG, coupled with the high

volume of patient appointments his treatments required, reaped

substantial profits for Jacobson.

In addition to the HCG injections themselves, Jacobson examined

his patients for pregnancy with laboratory tests designed to locate

the presence of HCG. The result was repeated false pregnancies for

many patients: while under Jacobson’s care, the Government’s trial

witnesses alone experienced over fifty false pregnancies. An

additional six patients accounted for some thirty such pregnancies.

The Government’s witnesses further established that Jacobson

perpetuated the myth that his patients were pregnant sometimes as

late as twenty to twenty-three weeks into the course of a normal

pregnancy. He accomplished this feat by the use of false sonograms.

Although nothing inside the patient’s womb could mimic the

presence of a real fetus, Jacobson informed the women that certain

images on the sonogram screen irrelevant to the presence of a fetus

were in fact the products of conception. According to the

Government’s witnesses, Jacobson repeatedly told his patients that

he observed the limbs of nonexistent fetuses, and that he saw the

fetuses sucking their thumbs. What Jacobson in fact represented to

his patients were often nearby organs or simply fecal matter.

The final element of Jacobson’s fraud came into play when he

was forced to reveal the true facts to women who thought they were

pregnant. This he accomplished by telling his patients that their

babies were dead, and by advising those who questioned him about

the need for having their uteruses scraped to remove the products

of conception (a "D & C"' treatment) not to do so. Jacobson

discouraged the D & C procedure by informing the women that it

could lead to a piercing of the uterus or even a hysterectomy. He

also told his patients that the D & C treatment was unnecessary,

because the dead fetus would simply "resorb" back into the putative

| mother’s body. Following such "“resorptions,” women now

convinced of Jacobson’s ability to help them conceive were led to

believe that they were ready for a new pregnancy, and should begin

immediately on a fresh cycle of HCG injections and pregnancy tests.

On November 21, 1991 a grand jury in the Eastern District of

Virginia returned a fifty-three count indictment against Jacobson.

The indictment charged (1) thirty-three counts of mail fraud, 18

U.S.C. § 1341; (2) ten counts of wire fraud, 18 U.S.C. § 1343; (3)

four counts of travel fraud, 18 U.S.C. § 2314; (4) one count of

general perjury, 18 U.S.C. § 1621; and (5) five counts of perjury

before a grand jury or court, 18 U.S.C. § 1623. Following a

twelve-day trial, the jury returned verdicts of guilty on all fifty-two

remaining* counts of the indictment. On May 8, 1992, the district

court sentenced Jacobson to a term of sixty months’ imprisonment,

and ordered him to pay (1) a fine in the amount of $ 75,000.00; (2)

restitution to certain of his victims in the amount of $ 39,205.00;

and (3) a special assessment in the amount of $ 2,600.00.

This appeal followed.

' The acronym "D & C”" represents the phrase “dilation and curettage," a

surgical procedure wherein the lining of the uterus is scraped. The procedure is

frequently used to remove the products of a failed pregnancy.

? Count 20 of the indictment, one of the mail fraud counts, was dismissed upon

Government motion prior to trial.

Pataca ain

Jacobson’s principal argument on appeal is that the federal

criminal fraud statutes, 18 U.S.C. §§ 1341,° 1343,‘ and 2314.5

* Section 1341 of Title 18, titled "Frauds and Swindles," reads in pertinent

part:

Whoever, having devised or intending to devise any scheme or artifice to defraud,

or for obtaining money or property by means of false or fraudulent pretenses,

representations, or promises, or to sell, dispose of, loan, exchange, alter, give

away, distribute, supply, or furnish or procure for unlawful use any counterfeit or

spurious coin, obligation, security, or other article, or anything represented to be

or intimated or held out to be such counterfeit or spurious article, for the purpose

of executing such scheme or artifice or attempting so to do, places in any post

office or authorized depository for mail matter, any matter or thing whatever to be

sent or delivered by the Postal Service, or takes or receives therefrom, any such

matter or thing, or knowingly causes to be delivered by mail according to the

direction thereon, or at the place at which it is directed to be delivered by the

person to whom it is addressed, any such matter or thing, shall be fined not more

than $ 1,000 or imprisoned not more than five years, or both.

18 U.S.C. § 1341.

* Section 1343 of Title 18, titled "Fraud by wire, radio, or television," states

iN pertinent part:

Whoever, having devised or intending to devise any scheme or artifice to defraud,

or for obtaining money or property by means of false or fraudulent pretenses,

representations, or promises, transmits or causes to be transmitted by means of

wire, radio, or television communication in interstate or foreign commerce, any

writings, signs, signals, pictures, or sounds for the purpose of executing such

scheme or artifice, shall be fined not more than $ 1,000 or imprisoned not more

than five years, or both.

18 U.S.C. § 1343.

* Section 2314 of Title 18, titled "Transportation of stolen goods, securities.

moneys, fraudulent State tax stamps, or articles used in counterfeiting,” reads in

pertinent part:

Whoever, having devised or intending to devise any scheme or artifice to defraud,

cannot be construed as criminalizing his conduct. Jacobson

challenges his prosecution under these statutes on the premise that

use of the mails, wires, and interstate travel was not an integral part

of his medical practice.

For the reasons that follow, we reject this premise, and hold that

Jacobson’s conduct was properly cognizable as fraud under the

relevant statutory authorities.

The factual predicates for the mail fraud counts of the indictment

were (1) Jacobson’s repeated attempts to help his patients obtain

health-insurance reimbursements for the costs of his infertility

treatments, which involved mailing correspondence to certain

insurance companies; (2) Jacobson’s encouragement that his patients

file health insurance claims for services he knew were fraudulent;

(3) Jacobson’s use of the mails to reassure his patients that his

medical practices were appropriate and scientifically accepted; (4)

Jacobson’s attempt to encourage new patients to undergo infertility

treatment with him by asking former patients to send him, by mail,

photographs of their newborn infants, which then would be used as

advertising material; (5) Jacobson’s use of the mails to obtain and

pay for supplies necessary to his fraudulent scheme, such as

pregnancy tests and HCG; and (6) Jacobson’s use of the mails to

send and to receive bills from patients, and to advertise his medical

practice.

Jacobson suggests that Kann v. United States, 323 U.S. 88

(1944), restricts the application of 18 U.S.C. § 1341 to mailings

that are in some respect central to a fraudulent scheme. He relies

or for obtaining money or property by means of false or fraudulent pretenses,

representalions, Or promises, transports or causes to be transported, or induces any

person or persons to travel in, or to be transported in interstate or foreign

commerce in the execution or concealment of a scheme or artifice to defraud that

person or those persons of money or property having a value of $ 5,000 or more

shall be fined not more than $ 10,000 or imprisoned not more than ten years,

or both.

18 U.S.C. § 2314.

upon the following sentence in Kann:

The federal mail fraud statute does not purport to

reach all frauds, but only those limited instances in

which the use of the mails is a part of the execution

of the fraud, leaving all other cases to be dealt with

by appropriate state law.

323 U.S. at 95. While this sentence makes clear that the application

of section 1341 is in some respects "limited," it does not define

explicitly what it means for a given use of the mails to be "part of

the execution of the fraud." Id. The question for decision, therefore,

is whether any use of the mails is a sufficient predicate for criminal

liability under section 1341, or whether the use must be more

substantial.

The Supreme Court answered this question definitively nearly

four decades ago. To be part of the execution of a fraud, the use of

the mails need not be an essential element of the fraudulent scheme.

Pereira v. United States, 347 U.S. 1, 8 (1954). It is sufficient for

the mailing to be "incident to an essential part of the scheme,” id.,

or "a step in [the] plot," Badders v. United States, 240 U.S. 391,

394 (1916). Moreover, the Supreme Court recently rejected

Jacobson’s argument that mail fraud can be predicated only upon a

mailing which affirmatively assists the perpetrator in carrying out

his fraudulent scheme. In Schmuck v. United States, 489 U.S. 705

(1989), the Court spurned a claim that, to invoke 18 U.S.C. §

1314, the mailing element of the fraudulent offense cannot be

satisfied by a mailing that is routine and innocent in and of itself, or

that is merely tangentially related to the fraud. Id. at 711.

Reaffirming Pereira, the Court held that to invoke section 1314, a

mailing need not be an essential part of the scheme to defraud, but

is sufficient so long as it is “incident to” an essential part of the

scheme. Id. at 712.

Under the Supreme Court’s clear holdings in Pereira and

Schmuck, Jacobson’s use of the mails was, without question, a

sufficient predicate for the Government’s invocation of 18 U.S.C.§

1314. The mailings charged by the indictment were incident to

essential elements of Jacobson’s fraud: inducing, treating, and

billing credulous patients who believed they needed his services. We

therefore conclude that the mail fraud counts of the indictment were

properly grounded in section 1314.

The factual predicates for the wire fraud counts of the indictment

were telephone calls made by patients for the purpose of scheduling

appointments with Jacobson. We have recognized that "the wire

fraud statute, patterned on the mail fraud act, was meant to receive

[a] like interpretation.” United States v. Computer Sciences Corp.,

689 F.2d 1181, 1188 n.14 (4th Cir. 1982) (citations omitted), cert.

denied, 459 U.S. 1105 (1983). We agree with the Third Circuit

Court of Appeals that cases construing the mail fraud statute are

"applicable to the wire fraud statute as well.” United States v.

Giovengo, 637 F.2d 941, 944 (3d Cir. 1980), cert. denied sub nom.

Paladino v. United States, 450 U.S. 1032 (1981). The question

before us, then, is whether the uses of telephone wires alleged in the

indictment were "incident to an essential part of the [fraudulent]

scheme." Pereira, 347 U.S. at 8. Because the telephone calls cited

in the indictment were incident to Jacobson’s ability to schedule

patient appointments at which his fraudulent treatments could be

administered, we conclude that they constitute a proper predicate for

the wire fraud counts of the indictment.

In the indictment’s travel fraud counts, the Government alleged

that Jacobson unlawfully induced certain of his patients to travel in

interstate commerce (from the District of Columbia, Maryland, and

West Virginia) to his consulting rooms in Vienna, Virginia for the

purpose of undergoing infertility treatments. 18 U.S.C. § 2314

provides in relevant part that

whoever, having devised . . . any scheme or artifice

to defraud, . . . induces any person or persons to

travel in . . . interstate . . . commerce in the

execution or concealment of a scheme or artifice to

defraud that person or those persons of money or

property having a value of $ 5,000 or more... .

shall be fined not more than $ 10,000 or imprisoned

not more than ten years, or both.

We observe that the plain language of 18 U.S.C.§ 2314 criminalizes

"inducements" to travel in interstate commerce for purposes of

receiving fraudulent medical treatments. We therefore conclude that

the indictment properly charged Jacobson with inducing his

out-of-state patients to travel to Virginia in order to undergo

fraudulent medical treatment at his infertility clinic in violation of

18 U.S.C. § 2314.

II]

Jacobson’s second assignment of error challenges the sentence

imposed upon him by the district court. Jacobson contends that the

court’s decision to depart upward from his established sentence

under the United States Sentencing Guidelines was unwarranted and

unreasonable. For the reasons that follow, we reject this contention.

Following his conviction, Jacobson faced a maximum sentence of

280 years’ imprisonment, including 185 years based on the

thirty-five counts of the indictment that predated the effective date

of the sentencing guidelines. The district court sentenced Jacobson

to sixty months’ imprisonment on each of the fifty-two counts, the

sentences to run concurrently. The court departed upward from the

sentencing range established by the guidelines, imposing a sentence

nineteen months longer than that permitted by the upper boundary

of the guidelines range.

A district court may depart from the sentencing range established

by the sentencing guidelines only if

the court finds that there exists an aggravating or

mitigating circumstance of a kind, or to a degree,

not adequately taken into consideration by the

Sentencing Commission in _ formulating the

guidelines.

10a

18 U.S.C. § 3553(b). In reviewing upward departures, we must

determine whether the sentence was imposed either in violation of

law or as a result of an incorrect application of the guidelines. 18

U.S.C. § 3742(f)(1); United States v. Rusher, 966 F.2d 868, 885

(4th Cir.), cert. denied, 113 S. Ct. 351 (1992).

In its written findings with respect to sentencing, the district court

supported its decision to depart upward on three bases: (1) U.S.S.G.

§ SK2.3 (extreme psychological injury); (2) U.S.S.G. § 5K2.8

(extreme conduct); and (3) U.S.S.G. § 2F1.1 (fraud guidelines

failed to capture harmful conduct fully). The court noted that each

basis would have been sufficient alone to justify a sixty-month

sentence. See United States v. Glick, 946 F.2d 335, 339 (4th Cir.

1991). The court identified the specific factors it believed warranted

an upward departure:

As a physician the defendant gained his patients’

trust, the defendant then abused that trust by lying

to his patients in order to defraud them of money

and property. The court observed many of the

defendant’s victims when they testified at trial and

also read the many victim impact statements

submitted to the court. This court has not seen a

case the equal of this one in terms of the degree of

emotional anguish, psychological trauma and, at

times, profound despair expressed by those victims

who took the witness stand and/or wrote to the

court to communicate their experiences with the

defendant. Several of the defendant’s patients

continue to suffer psychological trauma as a result

of their experience with the defendant.

Our review of the record discloses that the district court’s

findings of extreme conduct, extreme psychological injury, and the

guidelines’ inability to capture fully the harm of Jacobson’s behavior

are not clearly erroneous. See United States v. Hummer , 916 F.2d

186, 192 (4th Cir. 1990), cert. denied, 111 S. Ct. 1608 (1991).

Having so concluded, we must consider whether the sentencing

lla

court abused its discretion in departing from the established

guidelines range on the basis of these factors. Glick, 946 F.2d at

339. As noted above, each of the three categories of departure

invoked by the sentencing court are plainly contemplated as proper

bases for departure by the sentencing guidelines. After reviewing the

testimony of the Government’s witnesses, we cannot say that the

district court abused its discretion by departing upwards from

Jacobson’s established guidelines sentencing range to the extent of

imposing an additional nineteen months’ imprisonment upon him.

See Hummer, 916 F.2d at 192. We therefore affirm both the district

court’s decision to depart upwards and the extent of that departure

in sentencing Jacobson.

Our careful review of the record and the arguments of counsel

discloses that Jacobson’s remaining assignments of error® are

wholly without merit, and therefore warrant no discussion on our

part. Accordingly, we affirm the district court’s decisions with

respect to them forthwith.

For the foregoing reasons, Jacobson’s convictions and sentence

are hereby

AFFIRMED.

* These assignments of error included contentions (1) that the Government

failed to prove a legally sufficient claim against Jacobson; (2) that the district

court's instructions to the jury were erroneous and prejudicial; (3) that the

Government's investigatory methods were unconstitutional; (4) that the jury was

prejudiced by intense media attention; (5) that Jacobson was deprived of his right

to confront his accusers publicly; and (6) that the district court improperly excluded

important defense evidence and unlawfully admitted prejudicial prosecution

evidence.

12a

2. Court of Appeals’ briefing orders:

a. Order of October 2, 1992:

FILED: October 2, 1992

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 92-5406

(CR-91-474-A)

United States of America,

Plaintiff-Appellee,

Cecil B. Jacobson, Jr., M.D.,

Defendant-Appellant.

ORDER

Appellant has filed a motion for leave to file brief in excess of 50

pages. Although appellant has established good cause for leave to

file a brief that exceeds the page limitation specified by Rule 28(g)

of the Federal Rules of Appellate Procedure, appellant’s requested

brief of 95 pages appears excessive.

The Court grants appellant leave to file brief not to exceed 65

pages in length.

For the Court - By Direction

/s/ Bert M. Montague, Clerk

13a

b. Order of October 21, 1992:

FILED: October 21, 1992

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 92-5406

(CR-91-474-A)

United States of America,

Plaintiff-Appellee,

Vv.

Cecil B. Jacobson, Jr., M.D.,

Defendant-Appellant.

ORDER

The government has filed a motion for extension of time to file

brief and a motion for leave to file a brief in excess of 50 pages.

The Court grants the government leave to file a brief not to

exceed 65 pages in length on or before November 20, 1992.

For the Court - By Direction

/s/ Bert M. Montague, Clerk

l4a

c. Order of November 18, 1992

FILED: November 18, 1992

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 92-5406

(CR-91-474-A)

United States of America,

Plaintiff-Appellee,

Vv.

Cecil B. Jacobson, Jr., M.D.,

Detendant-Appellant.

ORDER

The government has filed a motion for leave to file a 75-page

brief. By order dated October 21, 1992, the Court granted the

government leave to file a brief not to exceed 65 pages in length.

This Court previously reduced appellant’s request for a 95-page

brief to 65 pages and the government’s brief in response should be

equally limited.

The Court denies the government's motion.

For the Court - By Direction

/s/ Bert M. Montague, Clerk

15a

3. Court of Appeals’ Order denying the government’s motion

to change the transcript of the district court’s instructions to the

jury on good faith:

: FILED: December 23, 1992

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 92-5406

United States of America,

Plaintiff-Appellee,

Cecil B. Jacobson, Jr., M.D.,

Defendant-Appellant.

ORDER

The appellee has filed a motion to correct joint appendix volume

VII. Appellant has filed an objection to the motion.

The Court denies appellee’s motion to correct the joint appendix

until the time for oral argument in this case.

For the Court - By Direction

/s/ Bert M. Montague, Clerk

l6a

4. District Court Opinion on courtroom closure and anonymous

trial testimony by prosecution witnesses (reported at 785 F.

Supp. 563 (E.D. Va. 1992):

UNITED STATES OF AMERICA, v. CECIL B. JACOBSON,

Detendant.

CRIMINAL NO. 91-00474-A

UNITED STATES DISTRICT COURT FOR THE EASTERN

DISTRICT OF VIRGINIA, ALEXANDRIA DIVISION

785 F. Supp. 563; 1992 U.S. Dist. LEXIS 1065; 19 Media L. Rep.

1958

January 9, 1992, Decided

COUNSEL: Randy I. Bellows, Esquire, David G. Barger,

Esquire, U.S. Attorney's Office, 1101 King Street, Suite 502,

Alexandria, VA 22314, for plaintiff

David R. Axelson, Esquire, James R. Tate, Esquire, TATE &

BYWATER, 2740 Chain Bridge Road, Vienna, Virginia 22181, for

defendant.

[*566]

MEMORANDUM OPINION

CACHERIS, Chief Judge.

The primary issue before the court is whether or not the

courtroom should be closed to the public and the press during the

testimony of eleven witnesses in a criminal proceeding. The

Government’s Motion for Protective Order seeks, inter alia, to close

the courtroom during the testimony of eleven witnesses who are the

parents of children allegedly fathered by the Defendant when he

17a

allegedly inseminated the female witnesses with his own sperm. For

reasons set forth below, the motion is granted in part and denied in

part.

Background

Dr. Cecil B. Jacobson was indicted on fifty-three counts of mail

fraud, wire fraud, travel fraud and perjury. In the indictment, the

Government alleges that Dr. Jacobson defrauded certain women and

their husbands by representing that the women would be inseminated

with sperm from an anonymous donor participating in a donor

insemination program. The Government further alleges that,

contrary to these representations, Dr. Jacobson inseminated these

women with his own sperm, thereby becoming the biological father

of the children born to certain of his patients.

In its motion, the Government represents that it intends to call

eleven of these parents as witnesses at trial. The Government asks

the court to exercise its inherent authority and its purported

authority under 18 U.S.C. § 3509 to impose five separate

limitations on the pretrial and trial proceedings with respect to these

witnesses: (1) to close the courtroom to the public and the press

during the witnesses’ trial testimony; (2) to allow the witnesses to

testify under pseudonyms; (3) to permit the filing under seal of

pleadings containing information identifying the witnesses, with

redacted copies to be placed in the public record; (4) to subject the

parties to certain non-disclosure obligations concerning identifying

information which they obtain in the course of the litigation or

which they already know; and (5) to redact identifying information

from any exhibits or other documents filed with the court.

Notice

Before considering a motion for protective order seeking closure

18a

of the courtroom or the sealing of documents in a criminal

proceeding, there must be adequate notice to the public that such

measures will be considered by the court. In re Washington Post

Co., 807 F.2d 383, 390 (4th Cir. 1986) (citation omitted). In

particular, closure motions and motions to seal documents must be

docketed reasonably in advance of their disposition so as to give the

public and the press an opportunity to intervene and present their

objections to the court. Id. The Government filed its motion on

December 9, 1991 and argument was set for December 20, 1991.'

The court finds that adequate notice was given in this matter and it

may therefore properly consider the Government’s Motion for

Protective Order.

I Ba ormens

The Court’s Authority to Issue the Protective Order

A. 18 U.S.C. § 3509

The Government’s first argument for a protective order is based

on the special child protection provisions found in 18 U.S.C. §

3509 entitled "Child victims’ and [*567] child witnesses’

' The Washington Post intervened in this action for the purpose of presenting

its objections to the court on December 19, 1991.

* Section 3509 provides in pertinent part:

(A) On motion by any person the court may issue an order protecting a child from

public disclosure of the name of or any other information concerning the child in

the course of the proceedings, if the court determines that there is a significant

possibility that such disclosure would be detrimental to the child.

(B) A protective order issued under subparagraph (A) may -

(i) provide that the testimony of a child witness, and the testimony of any other

witness, when the attorney who calls the witness has reason to anticipate that the

name of or any other information concerning a child may be divulged in the

testumony, be taken in a closed courtroom, and

19a

rights." This statute applies only to a “child” as defined by the

statute. The definition provides that:

The term "child" means a person who is under the age of 18, who

is or is alleged to be - (A) a victim of a crime of physical abuse,

sexual abuse, or exploitation; or (B) a witness to a crime committed

against another person.

18 U.S.C. § 3509(a)(2) (emphasis added). The Government argues

that the children allegedly fathered by Dr. Jacobson should be

considered "true witnesses" to the alleged crimes committed against

their parents because "it is blood drawn from these children which

establish the paternity of the defendant." (Gov’t’s Motion at 8.)

Relying on several definitions of "witness" that do not limit the

meaning to one who testifies at trial, the Government argues that

although the children will not be testifying at trial, they bear

"witness" to a crime committed against their parents.

The court finds, however, that 18 U.S.C. § 3509 does not apply

in this situation. The statute offers a series of procedural protections

to children who must testify in court, including alternatives to live

testimony such as closed circuit television. See, e.g., 18 U.S.C. §

3509(b), (c), (e) & (1). These provisions provide support for the

argument that the primary purpose of this statute is to protect

children who must testify in court. In addition, the accepted

definition of the term “witness” as used in legal proceedings is one

who is called to testify before a court. Without further guidance

from the legislature or the case law, this court declines to apply a

strained interpretation of the term "witness" in order to expand the

reach of this relatively new statute.

Even if the court were to find that § 3509 applies to this case,

application of the statute would not change the court’s constitutional

(ii) provide for any other measures that may be necessary to protect the privacy of

the child

18 U.S.C. § 3509(d)(3).

20a

analysis or its ruling on this motion. The statutory provision upon

which the Government principally relies is permissive, not

mandatory. See 18 U.S.C. § 3509(d)(3)(A) ("the court may issue an

order protecting a child from public disclosure . . . .) (emphasis

added). Thus, the determination of any privacy protections would

be within the court's sound discretion. The court finds that even it

it were to apply the statute to this case, it would apply the same

constitutional standards it applies under its inherent authority and

would reach the same conclusion regarding the subject protective

order.

B. The Court's Inherent Authority under the First Amendment

and the Common Law

It is well-settled that the public and the press have a First

Amendment right of access to criminal trials. Richmond

Newspapers, Inc. v. Virginia, 448 U.S. 555, 580, 65 L. Ed. 2d

973, 100 S. Ct. 2814 (1980); In re Knight Publishing Co., 743 F.2d

231, 233 (4th Cir. 1984). The common law also gives the public

and the press the right to attend and observe criminal trials. See

United States v. Criden, 648 F.2d 814, 819 (3d Cir. 1981).

The First Amendment and common law right of access is not

absolute, however. This right must be balanced against other

compelling interests protected by the Constitution. Press-Enterprise

Co. v. Superior Court, 464 U.S. 501, 509-10, 78 L. Ed. 2d 629,

104 S. Ct. 819 (1984); Globe Newspaper Co. v. Superior Court,

457 U.S. 596, 606, 73 L. Ed. 2d 248, 102 S. Ct. 2613 (1982).

Nonetheless, there is a strong presumption in favor of openness.

Analysis

A. Closure of the Courtroom

The presumption of openness may be overcome only by an

overriding interest based on a finding that closure is essential

2la

[*568] to preserve higher values and is narrowly tailored to serve

that interest. Press-Enterprise Co., 464 U.S. at 510; accord Globe

Newspaper Co., 457 U.S. at 607 (closure can be sustained only if

it “is necessitated by a compelling governmental interest, and is

narrowly tailored to serve that interest”).

The Supreme Court has recognized that the Government has a

compelling interest in “safeguarding the physical and psychological

well-being of a minor." Globe Newspaper Co., 457 U.S. at 607.

After reviewing the briefs and affidavits submitted, the court finds

that keeping secret the true identity of the parents and their children

is necessitated by the compelling and overriding governmental

interest in the psychological health and welfare of the children

involved in this matter. Significant psychological harm may result

trom public disclosure of the true identity of the parents who bore

children fathered by the Defendant. If such a parent’s true identity

were disclosed in open court, it is likely that the child of this parent

would learn the truth of his or her paternity. In order to safeguard

the psychological well-being of these children, information

regarding their paternity should be revealed to them in a careful

manner controlled and directed by their parents.

The court finds, however, that closure of the courtroom during

testimony of the parents is not narrowly tailored to serve the

governmental! interest. The Government asserts that there are no

reasonable alternatives to closure of the courtroom during the

parent’s testimony because of the risk of inadvertent disclosure of

identifying information concerning a parent or his or her children.

The court disagrees and finds that the Government has not met its

burden of showing that there are no less intrusive alternatives to

complete closure of the courtroom during the parents’ testimony.

The Government itself has proposed less drastic methods, such as

the use of pseudonyms, to prevent disclosure of the identity of the

parents or children. The greater protection arguably afforded by

ordering complete closure in addition to the other methods suggested

is outweighed by the harm to the First Amendment interests at

22a

issue. The Government will simply have to avoid inadvertent

disclosure of any witnesses’ identity through careful preparation and

questioning. As to the Government’s concerns that the parents will

be targeted for photography by the press, the Office of the United

States Marshal for the Eastern District of Virginia can assist the

Government in moving the witnesses in and out of the courthouse

without their being observed or photographed. Indeed, the

Government conceded this in its response to the opposition briefs

filed in this case. (Gov't’s Reply at 9) ("The Government believes

it can get these witnesses in and out of the courthouse without being

observed and without being photographed. . . . The Office of the

United States Marshall [sic] can provide valuable assistance in

making this possible."). Finally, the chance that one of the parent

witnesses will be recognized by someone in the courtroom is simply

not a strong or likely enough reason to override the right of access

to criminal proceedings.

The court therefore finds that closure of the courtroom during the

parent witnesses’ testimony is not narrowly tailored to serve the

governmental interest and therefore does not withstand constitutional

scrutiny. Accordingly, the court denies the Government's request

for a protective order requiring the closure of the courtroom during

the testimony of the eleven parent witnesses. The court finds that

there are less intrusive and more narrowly tailored measures which

should be enacted in order to protect the children in this case.

To prevent disclosure of the true identity of the parents and

children, the court will issue a protective order which contains

protective measures narrowly tailored to serve the governmental

interest in preventing psychological harm to the children.

B. The Use of Pseudonyms

Courts have permitted parties to proceed anonymously by use of

pseudonyms where, in balancing the constitutional right of openness

against a party's privacy interests, it is determined that pseudonyms

are necessary to protect a person from [*569] injury or personal

embarrassment. United States v. Doe, 655 F.2d 920, 922 n.1 (9th

23a

Cir. 1980). The court finds that referring to the parent witnesses by

assigned pseudonyms is necessary to protect the children from

harm. The use of pseudonyms is a narrowly tailored measure

because it shields the identity of the witnesses from the press and

the public only. Significantly, the Defendant and his counsel will

know the true identity of the parents. Use of the pseudonyms will

not interfere with the defendant’s preparation for trial, with his

ability to cross-examine witnesses at trial, or with the scope of the

examination. In other words, his Sixth Amendment right to confront

all witnesses will be preserved. Any suggestion that the court, by

the use of pseudonyms, is placing a "seal of disapproval" on

Defendant’s conduct or implying that such conduct was "heinous,"

(Det.’s Response to Gov’t’s Motions at 9), can be cured by an

appropriate instruction to the jury.

Accordingly, the court will issue a protective order providing that

the eleven parent witnesses will be allowed to testify in open court

under assigned pseudonyms.

C. Exclusion of Sketch Artists

To further protect the identity of the parents and their children

from disclosure to the public and the press, the protective order will

also provide that no sketch artist will be allowed in the courtroom

during the testimony of the eleven parent witnesses.

D. Filings Under Seal, Non-Disclosure, and Redactions

In Nixon v. Warner Communications, Inc., 435 U.S. 589,

597-98, 55 L. Ed. 2d 570, 98 S. Ct. 1306 (1978), the Supreme

Court recognized a common law right to inspect and copy judicial

records and documents. See also In re Knight Publishing, 743 F.2d

at 235. This right is not absolute, however. The trial court has

supervisory power over its own records and files and may, in its

sound discretion, seal documents if the public’s right of access is

outweighed by competing interests. Nixon, 435 U.S. at 598-99: In

re Knight, 743 F.2d at 235.

24a

The court finds that the governmental interest in protecting the

children from psychological harm outweighs the public’s right of

access to judicial documents that contain identifying information

regarding the parents or their children. Balancing the competing

interests, the court finds that there are narrowly tailored measures

which will adequately protect the governmental interest while

preserving the public’s common law right of access. First, the

court’s protective order regarding judicial documents will apply only

to documents that contain identifying information regarding the

parents or their children. Second, the documents will not be kept

completely under seal; a copy from which all identifying

information has been redacted shall be placed in the file for access

by the public and the press.

Accordingly, the court will issue a protective order with the

following provisions concerning judicial documents: (1) all

documents filed with the court that contain information identifying

patients who bore children as a result of insemination by the

Defendant with sperm that was not the husband’s, and any

identifying information concerning the children shail be filed under

seal along with a copy from which the identifying material has been

removed. The redacted copy wili be placed in the public file; (2) the

parties shall redact from exhibits all identifying information

concerning patients who bore children as a result of insemination by

the Defendant with sperm that was not the husband’s, and any

identifying information concerning the children. The parties shall

provide unredacted copies of the material to each other; (3) the

parties shall not disclose to the public or to the press any identifying

information received in the course of the litigation or already

known to them.

Accordingly, the Government’s Motion for Protective Order is

denied in part and granted in part.

An appropriate Order shall issue.

James C. Cacheris, United States District Judge

January 9, 1992, Alexandria, Virginia

25a

5. District Court’s Protective Order regarding anonymous

testimony by prosecution witnesses (excerpts):

FILED: December 30, 1991

IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF VIRGINIA

Alexandria Division

- United States of America, _)

) Criminal No. 91-00474-A

Vv. )

)

Cecil B. Jacobson, )

)

Defendant. )

D VERY AND V R

Upon motion of the United States, the court being advised as to

the nature of this case and the applicability of Rule 6(e) of the

Federal Rules of Criminal Procedure to certain discoverable

materials, and with due recognition as to the privacy considerations

in this matter, it is hereby ORDERED as follows:

* * *

4. The Government shall disclose to counsel for the Defendant

the true identity of the individuals named in the indictment under

pseudonym as well as the names of other individuals who submitted

to paternity testing under pseudonym whom the Government expects

to call at trial. Such disclosure shall only be made as follows:

a. The disclosure may only be made by the Government to

the attorneys of record for the Defendant.

b. The attorneys of record may only disclose these names,

26a

or any other identifying information,’ to the Defendant and to no

other person or entity, and such disclosure may be made to the

Defendant only after her has executed the nondisclosure agreement

which is Attachment A and such agreement has been filed with the

court.

c. The Defendant may not disclose these names, or any

other identifying information, to any other person or entity.

d. The attorneys of record for the Defendant or the

Government may seek the permission of the court to make further

disclosures of these names, or any other information, should it

become necessary in connection with this matter. Such disclosures,

however, shall not be made without the court’s permission.

5. Neither counsel for Defendant, nor the Defendant, nor any

individual employed by, retained by, or associated with counsel for

the Defendant shall disclose to any other person or entity the true

identity, or identifying information, of mndividuals who gave birth

to a child pursuant to the Defendant’s donor insemination protocol,

or the identity of such children, regardless of the means by which

such information came into the possession of such individuals,

without the permission of the court.

6. The Clerk shall forward copies of this Order to all counsel of

record.

December 30, 1991

Alexandria, Virginia

James C. Cacheris,

United States District Judge

' Identifying information is defined as any information from which a reasonable

person might deduce an individual's true identity, including but not limited to a

parent’s or child’s true first or last name, address, or any other unusual or

distinctive information which could lead a reasonable person to a true

identification.

27a

6. Court of Appeals’ Order Denying Rehearing

FILED: November 8, 1993

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 92-5406

CR-91-474-A

United States of America,

Plaintiff-Appellee,

Cecil B. Jacobson, Jr., M.D.,

Defendant-Appellant.

On Petition for Rehearing with Suggestion for Rehearing in Banc

Appvilant filed a petition for rehearing with suggestion for

rehearing in banc. No member of the Court requested a poll on the

Suggestion for rehearing in banc, and the original judicial panel

voted to deny the petition for rehearing.

The Court denies the petition for rehearing with suggestion for

rehearing in banc.

This order is entered at the direction of Chief Judge Ervin, with

the concurrence of Judge Phillips and Judge Williams.

For the Court,

/s/ Bert M. Montage, Clerk

28a

7. Texts of Constitutional, Statutory, and Regulatory Provisions

Involved:

United States Constitution:

Article 1, §9, cl. [3]. No Bill of Attainder or ex post facto Law

shall be passed.

Amendment I:

Congress shall make no flaw respecting the establishment of

religion, or prohibiting the free exercise thereof; or abridging the

treedom of speech, or of the press; or the right of the people

peaceably to assemble, and to petition the Government for a redress

of grievances.

Amendment IV:

The right of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and seizures, shall

not be violated, and no Warrants shall issue, but upon probable

cause, supported by Oath or affirmation and particularly describing

the place to be searched, and the persons or things to be seized.

Amendment V:

No person shall be held to answer for a capital, or otherwise

infamous crime, unless on a presentment or indictment of a Grand

Jury . . . nor shall any person be subject for the same offence to be

twice put in jeopardy of life or limb; nor shall be compelled in any

criminal case to be a witness against himself, nor be deprived of

life, liberty, or property, without due process of law... .

Amendment VI:

In all criminal prosecutions, the accused shall enjoy the right to

a speedy and public trial, by an impartial jury . . . and to be

informed of the nature and cause of the accusation; to be confronted

with the witnesses against him; to have compulsory process for

obtaining witnesses in his favor, and to have the Assistance of

Counsel for his defence.

Title 18, United States Code:

§ 1341. Frauds and swindles

Whoever, having devised or intending to devise any scheme or

artifice to defraud, or for obtaining money or property by means of

false or fraudulent pretenses, representations, or promises, . . . for

the purpose of executing such scheme or artifice or attempting to do

so, places in any post office or authorized depository for mail

matter, any matter or thing whatever to be sent or delivered by the

Postal Service, or takes or receives therefrom, any such matter or

thing, or knowingly causes to be delivered by mail according to the

direction thereon, or at the place at which it is addressed, any such

matter or thing, shall be fined not more than $ 1,000 or imprisoned

not more than five years, or both.

§ 1343. Fraud by wire, radio, or television

Whoever, having devised or intending to devise any scheme or

artifice to defraud, or for obtaining money or property by means of

false or fraudulent pretenses, representations, or promises, transmits

or Causes to be transmitted by means of wire, radio, or television

communication in interstate or foreign commerce, any writings,

signs, signals, pictures, or sounds for the purpose of executing such

scheme or artifice, shall be fined not more than $ 1,000 or

imprisoned not more than five years, or both.

§ 2314. Transportation of stolen goods, securities, moneys,

fraudulent State tax stamps, or articles used in counterfeiting

x *

Whoever, having devised or intending to devise any scheme or

artifice to defraud, or for obtaining money or property by means of

false or fraudulent pretenses, representations, or promises,

transports or causes to be transported, or induces any person or

persons to travel in, or to be transported in interstate or foreign

commerce in the execution or concealment of a scheme or artifice

to defraud that person or those persons of money or property having

a value of $5,000 or more; or

* * *

Shall be fined not more than $10,000 or imprisoned not more that

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ten years, or both.

§ 3553. Imposition of a sentence

x * *

(b) Application of guidelines in imposing a sentence.-The court

shall impose a sentence of the kind, and within the range, referred

to in subsection (a)(4) unless the court finds that there exists an

aggravating or mitigating circumstance of a kind, or to a degree, not

adequately taken into consideration by the Sentencing Commission

in formulating the guidelines that should result in a sentence

different than that described... .

§ 3742. Review of a sentence

* * *

(e) Consideration.-Upon review of the record, the court of

appeals shall determine whether the sentence-

(1) was imposed in violation of law;

(2) was imposed as a result of an incorrect application of the

sentencing guidelines;

(3) is outside of the applicable guideline range and is

unreasonable, having regard for-

(A) the factors to be considered in imposing a sentence, as

set forth in chapter 227 of this title; and

(B) the reasons for the imposition of the particular

sentence, as stated by the district court pursuant to the

provisions of section 3553(c); . . .

The court of appeals shall give due regard to the opportunity of the

district court to judge the credibility of the witnesses, and shall

accept the findings of fact of the district court unless they are

clearly erroneous and shall give due deference to the district court's

application of the guidelines to the facts.

United States Sentencing Guidelines:

§ 1B1.3. Relevant Conduct (Factors that Determine the Guideline

Range)

(a) Chapters Two (Offense Conduct) and Three (Adjustments).

Unless otherwise specified, (i) the base offense level where the

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guideline specifies more than one base offense level, (ii) specific

offense characteristics and (iii) cross references in Chapter Two, and

(iv) adjustments in Chapter Three, shall be determined on the basis

of the following:

(1) (A) all acts and omissions committed, aided, abetted,

counseled, commanded, induced, procured, or willfully caused by

the defendant; and

(B) in the case of a jointly undertaken criminal activity (a

criminal plan, scheme, endeavor, or enterprise undertaken by the

defendant in concert with others, whether or not charged as a

conspiracy), all reasonably foreseeable acts and omissions of others

in furtherance of the jointly undertaken criminal activity, that

occurred during the commission of the offense of conviction, in

preparation for that offense, or in the course of attempting to avoid

detection or responsibility for that offense;

(2) Solely with respect to offenses of a character for which

§3D1.2(d) would require grouping of multiple counts, all acts and

omissions described in subdivisions (1)(A) and (1)(B) above that

were part of the same course of conduct or common scheme or plan

as the offense of conviction;

(3) All harm that resulted from the acts and omissions specified

in subsections (a)(1) and (a)(2) above, and all harm that was the

object of such acts and omissions; and

(4) Any other information specified in the applicable guideline.

** *

§ 2F1.1. Fraud and Deceit

(a) Base Offense Level: 6.

(b) Specific Offense Characteristics.

(1) If the loss exceeded $2,000, increase the offense level as

follows:

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Loss (Apply the Greatest) Increase in Level

on ccousueaaseuenss No increase.

CB) BRI GE Te hoes ccccccccccsccsccsccsessens Add 1.

ao. cicucccentcnctecvevesvsss Add 2.

oo vvccccccnesncccsctcccscoecs Add 3.

ye ID cis cecesvsccscosscccevevsecs Add 4.

(F) More than $40,000 ..................ccceee eee Add 5.

(Og 0 Ee Add 6.

i, |) ae Add 7.

(I) More than $200,000 ..................2..ceeee ee Add 8.

(J) More than $350,000 ...................0...2008. Add 9.

(K) More than $500,000 ........................065. Add 10.

(L) More than $800,000 ...................0..0.005 Add 11.

(M) More than $1,500,000 .......................4.. Add 12.

(N) More than $2,500,000 ....................eeeee. Add 13.

(O) More than $5,000,000 .......................08. Add 14.

(P) More than $10,000,000 ......................... Add 15.

(Q) More than $20,000,000 ......................... Add 16.

(R) More than $40,000,000 .............0...0..0.65. Add 17.

(S) More than $80,000,000 .....................205. Add 18.

(2) If the offense involved (A) more than minimal planning, or

(B) a scheme to defraud more than one victim, increase by 2 levels.

(3) If the offense involved (A) a misrepresentation that the

defendant was acting on behalf of a charitable, educational, religious

or political organization, or a government agency, or (B) violation

of any judicial or administrative order, injunction, decree or

process, increase by 2 levels. If the resulting offense level is less

than level 10, increase to level 10.

(4) If the offense involved the conscious or reckless risk of

serious bodily injury, increase by 2 levels. If the resulting offense

level is less than level 13, increase to level 13.

(5) If the offense involved the use of foreign bank accounts or

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transactions to conceal the true nature or extent of the fraudulent

conduct, and the offense level as determined above is less than level

12, increase to level 12.

(6) If the offense--(A) substantially jeopardized the safety and

soundness of a financial institution; or (B) affected a financial

institution and the defendant derived more than $ 1,000,000 in gross

receipts from the offense, increase by 4 levels. If the resulting

offense level is less than level 24, increase to level 24.

Commentary

Application Notes:

* * *

6. Some fraudulent schemes may result in multiple-count

indictments, depending on the technical elements of the offense. The

cumulative loss produced by a common scheme or course of conduct

should be used in determining the offense level, regardless of the

number of counts of conviction. See Chapter Three, Part D

(Multiple Counts).

** *

9. Dollar loss often does not fully capture the harmfulness and

seriousness of the conduct. In such instances, an upward departure

may be warranted. Examples may include the following:

(a) The primary objective of the fraud was non-monetary;

(b) False statements were made for the purpose of facilitating

some other crime;

(d) the offense endangered national security or military readiness;

(e) the offense caused a loss of confidence in an important

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institution;

(f) completion of the offense was prevented, or the offense was

interrupted before it caused serious harm.

§ 231.3. Perjury or Subornation of Perjury

(a) Base Offense Level: 12.

(b) Specific Offense Characteristics.

(1) If the offense involved causing or threatening to cause

physical injury to a person, or property damage, in order to suborn

perjury. increase by 8 levels.

(2) If the perjury or subornation of perjury resulted in substantial

interference with the administration of justice, increase by 3 levels.

(1) If the offense involved perjury or subornation of perjury in

respect to a criminal offense, apply § 2X3.1 (Accessory After the

Fact) in respect to that criminal offense, if the resulting offense

level is greater than that determined above.

(d) Special Instruction.

(1) In the case of counts of perjury or subornation of perjury

arising from testimony given, or to be given, in separate

proceedings, do not group the counts together under § 3D1.2

(Groups of Closely-Related Counts).

§ 5K2.3. Extreme Psychological Injury (Policy Statement)

If a victim or victims suffered psychological injury much more

serious than that normally resulting from commission of the offense,

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the court may increase the sentence above the authorized guideline

range. The extent of the increase ordinarily should depend on the

severity of the psychological injury and the extent to which the

injury was intended or knowingly risked.

Normally, psychological injury would be sufficiently severe to

warrant application of this adjustment only when there is a

substantial impairment of the intellectual, psychological, emotional,

or behavioral functioning of a victim, when the impairment is likely

to be of an extended or continuous duration, and when the

impairment manifests itself by physical or psychological symptoms

or by changes in behavior patterns. The court should consider the

extent to which such harm was likely, given the nature of the

defendant’s conduct.

§ SK2.8. Extreme Conduct (Policy Statement)

If the defendant’s conduct was unusually heinous, cruel, brutal,

or degrading to the victim, the court may increase the sentence

above the guideline range to reflect the nature of the conduct.

Examples of extreme conduct include torture of a victim, gratuitous

infliction of injury, or prolonging of pain or humiliation.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.