The US Supreme Court in Ruan sided with doctors seeking a burden of proof higher than mere negligence in prosecutions for unlawful distribution of controlled substances. The decision represents a significant win for those worried about overcriminalization and the associated risk of losing the criminal law’s critical stigmatic impact, write Perkins Coie attorneys T. Markus

The U.S. Supreme Court is poised to issue what could be a monumental decision in the Court’s Controlled Substances Act (“CSA”) jurisprudence as applied to the nation’s opioid epidemic. At issue in Ruan v. United States is the requisite intent the government must prove to convict a physician under the CSA for the unlawful distribution of controlled substances. 

The outcome in Ruan could have significant implications for prescribers, including whether their risk of criminal liability is actually higher than a narcotics trafficker distributing heroin or cocaine. More specifically, to convict a drug trafficker, federal prosecutors must prove beyond a reasonable doubt that the trafficker knowingly and intentionally manufactured, transported, or distributed narcotics. If the government prevails in Ruan, the government would de facto have to show only that a prescribing physician was negligent in misprescribing opioids.

Concerns about ever-expanding prosecutorial discretion and the erosion of the criminal law’s traditional “guilty mind” requirement have focused significant attention on the case.

A Mini Survey of the CSA’s Statutory Scheme

Per the implementing regulations of 21 U.S.C. § 841(a)(1), a physician may lawfully prescribe controlled substances only if they are prescribed for “a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice.” Even a first-time offender could face decades in prison for misprescribing a Schedule II controlled substance, such as oxycodone, hydrocodone, hydromorphone, methadone, or fentanyl, in violation of the CSA.

The Government’s Case Against Dr. Ruan

In 2016, a federal grand jury returned an indictment charging Dr. Xiulu Ruan, a Drug Enforcement Administration (“DEA”)-registered pain management physician, with, among other things, “knowingly and unlawfully distribut[ing] and dispens[ing] . . . Schedule II Controlled Substances . . . outside the usual course of professional medical practice and not for a legitimate medical purpose, in violation of Title 21, United States Code, Section 841(a)(1).”

The government at trial presented evidence that Dr. Ruan and his business partner issued nearly 300,000 controlled substance prescriptions in a four-year period. Some of these prescriptions allegedly were signed without Dr. Ruan even seeing the patient. The government also presented evidence that Dr. Ruan increased prescriptions of a biopharma company’s fentanyl drug a hundredfold after he and his business partner invested in it.

Continue Reading Could It Be Easier to Convict a Doctor Than a Cartel Member? Why the Impending SCOTUS “Pill Mill” Ruling Makes Some Observers Nervous

On February 21, 2018, in Class v. United States, the U.S. Supreme Court reaffirmed that a defendant who pleads guilty can still raise on appeal any constitutional claim that does not depend on challenging his or her “factual guilt.”  The Court’s holding preserves a federal criminal defendant’s ability to challenge the constitutionality of the statute underlying his or her conviction, even in the event of a guilty plea.  In other words, where the appellate claim implicates “the very power of the State” to prosecute the defendant, a guilty plea alone cannot bar it. 
Continue Reading SCOTUS Speaks:  Guilty Pleas Don’t Waive All Appellate Claims

On April 18, 2017, the U.S. Supreme Court heard oral argument in Kokesh v. Securities and Exchange Commissiona case which could determine whether the Securities and Exchange Commission’s power to disgorge ill-gotten gains is subject to a statute of limitations.  The SEC currently uses disgorgement as a tool to take in billions of dollars in payments annually from defendants in its enforcement actions. 
Continue Reading SEC Disgorgement Power – Time Running Out?

In its recent declination to review the Third Circuit’s decision in In Re: Grand Jury Subpoena, a case involving the contours of the crime-fraud exception to the attorney-client privilege, the U.S. Supreme Court leaves intact the Third Circuit’s conclusion that by merely informing a client of the applicable law, asking clarification questions, and advising against potentially illegal conduct, an attorney’s actions constituted advice in “furtherance of a crime or fraud” and vitiated the protections of the attorney-client privilege.

Continue Reading Supreme Court Remains Silent on Crime-Fraud Exception

The U.S. Supreme Court is set to decide the circumstances in which police may constitutionally search an arrestee’s cell phone without a warrant. On April 29, 2014, the Court heard arguments in two companion cases—Riley v. California and United States v. Wuriewhich occasion the Court to define the scope of the Fourth Amendment in the digital age and strike a balance between an individual’s interest in the privacy of his cell phone contents and law enforcement’s interests in police safety and preservation of evidence. In Riley, police seized David Leon Riley’s smart phone during a traffic stop for an expired licensed plate. Using photos, videos, and call logs obtained through a warrantless search of his phone, along with two hand guns found during a search of his car, police identified Riley as a member of a gang and placed him near the scene of a gang-related shooting that occurred a couple of weeks before his arrest. At trial, although no witness positively identified Riley as a participant in the shooting, the circumstantial evidence from the phone gave the jury enough evidence to convict him of shooting at an occupied vehicle, attempted murder, and assault with a semi-automatic weapon. In Wurie, police arrested Brima Wurie near the scene of a drug transaction and took him to the police station. While there, police seized two cell phones from Wurie. Police observed that one of the cell phones—a flip phone—was repeatedly receiving calls from “my house.” Without a warrant, the officers flipped open the phone, reviewed the call log, and traced the phone number to Wurie’s apartment. Police obtained a warrant to search Wurie’s apartment, where they found crack, marijuana, and other evidence of a drug crime. Wurie was convicted of distribution and possession with intent to distribute crack, and being a felon in possession of a firearm and ammunition. 
Continue Reading SCOTUS Hears Arguments in Warrantless Cell Phone Search Cases