Over the past a few decades countless clinicians have been criminalized under the Controlled Substances Act (CSA) Section 841 as drug traffickers or under Section 846 as drug trafficking conspirators, or both. Following a lengthy jury trial in 2017 in the Southern District of Alabama, Dr. J. Patrick Couch and I were convicted of committing a host of conspiracies.
On June 27, 2022, in Xiulu Ruan v. United States, 142 S. Cl 2370 (2022) (‘”Ruan II'”}, the Supreme Court unanimously vacated the judgment. The Court held that the CSA 841’s knowingly or intentionally mens rea applied to the CSA 841’s “except as authorized” clause (“Ruan Mens Rea Error”). In a CSA 841 prosecution the Government must prove that physicians knowingly or intentionally acted in an unauthorized manner. The Court remanded my case back to the Eleventh Circuit.
On January 5, 2023, in U.S.v.Ruan,2023 U.S.App. LEXJS 240 (Ruan Ill), the Seventh Circuit, on remand, held that the district court did not adequately instruct the jury that the defendants must have knowingly or intentionally prescribed outside the usual course of professional practice.
In this essay, I have conducted a critical analysis on the drug conspiracy (Section 846) jury instruction that was given by the district court at our trial because our Section 846 convictions served essentially as the foundation of all other convictions. Specifically I aim to show: (1) the Section 846 jury instruction is plain error, in light of the Ruan Mens Rea Error, because the conduct described as the object of the alleged drug conspiracies was, in effect, lawful; (2) to cunningly cover up this grave instructional error, the Eleventh Circuit deliberately misinterpreted it and speciously argued falsehood; and (3) the lack of mens rea in Section 841 instruction (Ruan Instructional Error) rendered Section 846 instruction defective, and consequen1ly.the drug conspiracy convictions under Section 846 must fail.
There Is No Universal Standard Respecting Jury Instruction on Drug Conspiracy (under Section 846) Pertaining to Practicing Physicians.
This is apparent in that Modem Federal Jury Instructions (MFJI) do not contain any specific instruction on Section 846 pertaining to physicians; they contain only specific instruction on Section 841 prosecution of physicians. (MFJI Instructions 56- 15 Element of Offenses. November, 2020) All criminal pattern instructions included in MFJI use the same drug conspiracy (Section 846) instruction when prosecuting either physicians or street comer drug dealers. For example, in the Section 846 instruction, the Criminal Pattern Jury Instructions by Judicial Council of the Eleventh Circuit Resolution provide:
“The defendant can be found guilty only if all the following facts are proved beyond a reasonable doubt (1) two or more people in some way agreed to try to accomplish a shared and unlawful plan the object of which was to [possess with the intent to distribute] [substance];(2) the defendant knew the unlawful purpose of the plan and willfully joined in it.” (100 Controlled Substances: Conspiracy 21 U.S.C. Section 846 and/or 21U.S.C.Section 963).
Prior to Ruan II, for decades, outside the usual course of professional practice (OUCPP) and not for legitimate medical purpose (NFLMP) had been considered sufficient for convicting physicians under Section 841. For example, Modem Federal Jury Instructions (MFJl) provide: o convict a physician under 21 U.S.C. Subsection 841{a)(1) the Government, must establish beyond a reasonable doubt…First…; Second…;and Third, the defendant dispensed the drug other than for a legitimate medical purpose and not in the usual course of professional practice.” (MFJI Instruction 56-15 Element of Offenses, November. 2020)
Notice that the above instruction in MFJI contains the same error as in Ruan II- the Third Element was devoid of any mens rea (Ruan Mens Rea Error). Also MFJI require a conjunctive standard respecting other than for a legitimate medical purpose AND not in the usual course of professional practice, while lower courts largely used a disjunctive standard, allowing EITHER the former OR the latter to convict the physician. This difference in criminal liability standard suffices to show the pervasive ambiguity and confusion about the law in this area.
Why Is the Drug Conspiracy (Section 846) Instruction Given at Our Trial Plain Error per Ruan II?
At our trial, the district court gave the following Section 846 instruction:
“One. two or more people in some way agreed to try and accomplish a shared and unlawful plan to distribute or dispense OUTSIDE THE USUAL COURSE OF PROFESSIONAL PRACTICE AND NOT FOR A LEGITIMATE MEDICAL PURPOSE (OUCPP & NFLMP) the alleged controlled substance and substances; and two, the defendant knew the unlawful purpose of the plan and willfully joined it.” (Tr. 2117/2017, p. 6231).
The Court in Ruan II however, emphasized the requisite mens rea respecting OUCPP and NFLMP, and as a result, the terms OUCPP & NFLMP, per se, can no longer be regarded as unlawful. Therefore, the above instruction is plain error, a misstatement of the law, pursuant to Ruan II. (The Court in Henderson v. U.S., 133 S.Ct. 1121 held that “plain error” as applying at the time of review and a “time of review” interpretation furthered the principle that an appellate court must apply the law in effect at the time it renders its decision.)
In U.S. v. White Eagle, 721 F.3d 1108 (91h Cir. 2013), defendant’s loan modification was touted as the object of the conspiracy. Ninth Circuit admonished that the alleged object of conspiracy under 18 U.S.C.S. Section 371 was not itself criminal, and therefore, there could be no conspiracy.
Again the above drug conspiracy instruction erred because Ruan II rendered the object of the alleged drug conspiracy noncriminal, thus invalidating its first element. Even assuming that the second element contained adequate mens rea per se, this satisfaction could not repair the error of the defective first element, i.e. the object of the alleged drug conspiracy was noncriminal. Intuitively, a conspiracy requires an agreement to conduct criminal act. When the conduct of concern is not criminal, there can be no conspiracy.
In McClellan v. Mississippi Power & Light Co., 545 F2d 919, 924-28 (5th Cir. 19n) (en banc), the Fifth Circuit reached a conclusion that the object of conspiracy must be independently met on the basis of dicta. in U.S. v. Harris 1 S. Ct. 601 (1883}.
Recognizing the gravity of this plain error, the Eleventh Circuit cunningly covered it up with an ellipsis and speciously argued falsehood in violation of our due process rights.
In its ruling in U.S. Ruan.2023 U.S. App. LEXIS 240 (11lh Cir.2023) Ruan III-}, the Seventh Circuit cited the same instruction I just cited above in advancing its argument “Here, the jury instructions for the drug conspiracy charges tracked our precedent and conveyed the above mens rea. The jury was instructed to convict only if they found ‘two or more people in some way agreed to try and accomplish a shared unlawful plan to distribute or dispense the alleged controlled substance or substances.” (Ruan Ill, 2023 U.S. App. LEXIS 12)
The Eleventh Circuit also misrepresented when it argued: “the jury instructions for the drug conspiracy charges tracked our precedent…” then citing the Case law, U.S. v. Azmat, 805 F.3d 1018 (11th Cir. 2015). The truth is: The Eleventh Circuit did not track Azmat’s jury instruction at all because Azrnat contained no Section 646 instruction. In fact, it did not even contain the term, “jury instruction.” In Azmat, the word “instruction” appeared only once in a different context. (Id.,at 1044) (“We consider whether a defendant’s substantial rights were prejudiced in the context of the entire trial, along with any curative instruction.’)
The Case law Azmat did contain a description of the criminal standard used to convict physicians under Section 646. The Eleventh Circuit did cite this criminal standard: “To violate Section 846 the government must prove: ‘(1) there was an agreement between two or more people to commit a crime (in this case, unlawfully dispensing controlled substances in violation of Section 841(a)(1)); (2) the defendant knew about the agreement and (3) the defendant voluntarily joined the agreement’ U.S. v. Azmat, 805 F.3d 1018, 1035 (11th Cir. 2015)'” (Ruan Ill, 2023 U.S. App. LEXIS 10-11)
Examining the above Azmat standard, we see that its first element contains the description of illegal conduct as the object of the conspiracy, namely, “unlawfully dispensing controlled substances in violation of Section 841{a){1).” Indubitably the object of the drug conspiracy in Azmat, as stated, describes criminal conduct.
To beef up its argument in representing the district court conveyed adequate mens rea in the Section 846instruction,The Eleventh Circuit borrowed from elsewhere another portion of the jury instruction that might utter a sound of “willfulness”: “The instructions told the jury that a person acts with willfulness only when they [sic) acted ‘voluntarily and purposely…to do something the law forbids.'” (2023 U.S. App.LEXIS 12) However, the foregoing instruction was given during jury instruction on Count 22 (money laundering Count on page 6249 of the trial transcript}, not during Section 846 instruction on Counts 2 to 4 (on page 6231 of the trial transcript).
The Trial Court’s Drug Conspiracy (Section 846) Jury Instruction Did Not Sufficiently Convey the Requisite Mens Rea.
The erroneous mens rea lacking terms such as “outside the usual course of professional practice” (OUCPP) and “not for legitimate medical purpose” {NFLMP) permeated the entire jury instruction. For example, during the drug conspiracy {Section 846) Instruction, the jury heard OUCPP ten times and NFLMP eight times. (Tr. 2/17/20 17, p. 6223-32) During substantive drug trafficking (Section 841) instruction, the jury heard OUCPP and NFLMP twelve times each. (Id., p. 6233-36). Reading the jury instruction as a whole, I argue these repeated erroneous instructions most likely have confused the jury , convicting Dr. Couch and myself of allegedly committing drug conspiracies {under Section 846) without considering the requisite mens rea.
“Here, the jury instruction for the drug conspiracy charges tracked our precedent and conveyed the adequate mens rea. (Argument A) The jurors in this case were instructed to convict only if they found ‘two or more people in some way agreed to try and accomplish a shared unlawful plan to distribute or dispense…the alleged controlled substance or substances.’ (Argument 8) Further, they were introduced to convict only if they found that the defendants ‘new the unlawful purpose of the plan and willfully joined it.’ {Argument C) The instructions told the jury that a person acts with willfulness only when they [sic] act ‘voluntarily and purposely…to do something the law forbids. {Argument D)” (2023 U.S. App. LEXIS 12)
The Eleventh Circuit patched everything together in order to misrepresent that there was adequate mens rea regarding the drug conspiracy instruction. In light of the fact that the erroneous, mens rea lacking OUCPP and NFLMP permeated the entire jury instruction and, reading the entire jury instruction as a whole, we can only conclude that the requisite mens rea in drug conspiracy instruction was inadequately conveyed.
In U.S. v. Kim, 65 F.3d 123 (9th Cir. 1995), the Ninth Circuit held: “It is well established that ‘the requisite intent necessary to commit [the] under1ying, substantive offense,’ is an essential element of any conspiracy […] An error in construing the requisite intent for the underlying offense infects the intent for the conspiracy count. See Ingram v. U.S., 360 U.S 672, 681 (1959) (holding that lack of knowledge of a tax liability meant that defendants could not be convicted of conspiracy to evade taxes); Direct Sales Co. v. U.S., 319 U.S. 703,711 {1943) (staling that ‘without the knowledge, the intent cannot exist.’ and that ‘charges of conspiracy are not to be made out by piling inference upon inference, thus fashioning a dragnet to draw in all substantive crimes.'”) (Kim, at 126)
In Kim, the Government argues that the conspiracy instructions indicate that the defendant must be found to know of, and intend to further the ‘unlawful purpose’ of the conspiracy, and the use of “willfully in the conspiracy Instructions sufficiently meets the intent.
The Ninth Circuit rejected Government’s arguments:
“The use of ‘willfully’ in the conspiracy instruction refers to the joining in the agreement, not the mens rea of the substantive offense. Moreover, the reference to knowledge of the unlawful purpose of the conspiracy does not instruct the jury to explicitly find knowledge of the illegality. While the court’s instructions regarding the elements of the conspiracy offense were generally unobjectionable, they necessarily refer to the erroneous definition of the substantive offense embodied in the substantive offense instructions, which failed to mention a requirement of proof that the defendants knew that the structuring of a transaction was illegal. Failure to properly instruct the jury of the knowledge requirement in the underlying offense resulted in an error in the conspiracy instruction.” (Kim, et 126)
To conclude: When the CSA Section 841(substantive drug trafficking) instruction is flawed for lacking mens rea as in Ruan II, the Section 846 (drug conspiracy) jury instruction must also be flawed.
