Nos ; ; UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff- Appellee, vs.

Transcription

1 Nos ; ; UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff- Appellee, vs. RICARDO U. ALERRE, M.D. DEBORAH S. BORDEAUX, M.D. MICHAEL D. JACKSON, M.D Defendants-Appellants. Appeal from the United States District Court for the District of South Carolina, Florence Division District Court Criminal Case No. 4: APPELLANTS' PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC For Deborah S. Bordeaux, M.D.: G. WELLS DICKSON, JR, Lead Counsel 174 East Bay S1Teet,Ste 302 Charleston, SC Telephone: (843) For Deborah S. Bordeaux, M.D.: ELI D. STUTSMAN 621 S.W. Morrison, 13th Floor Portland, OR Telephone: (503) For Ricardo U. Alerre, M.D.: LIONEL S. LOFTON 174 East Bay Street, Ste 302 Charleston, SC Telephone: (843) For Michael D. Jackson, M.D.: DAVID BRUCE BETTS 276 Mariners Circle, Ste 201 Columbia, SC Telephone: (803)

2 TABLE OF CONTENTS I. STATEMENT OF COUNSEL 1 n. ARGUMENT 2 A. The prosecution and the defense misrepresented the weight of the evidence to the jury 4 B. This unusual record presents the Fourth Circuit with a unique opportunity to maintain the law 5 C. The government's confusion is institutional, 7 D. The defense attorneys were ineffective in failing to recognize that the civil standard evidence may be relevant, but it was not sufficient 8 III. CONCLUSION 10

3 11 TABLE OF AUTHORITIES Cases Baker v. Barbo, 177 F. 3d 149 (3d Cir. 1999) 2 Gooding v. St. Francis Xavier Hasp., 326 S.C. 248 (1997) 8 Nix v. Whitside, 475 U.S. 157 (1986) 2 Richardson v. Marsh, 481 U.S. 200 (1987) 4 Smith v. Dixon, 14 F.3rd 956 (4 th Cir. 1994) 3 Strickland v. Washington, 466 U. S. 668 (1984) 1, 3, 9 United States v. Fisher, 477 F.2d 300 (4th Cir. 1973) 10 United States v. Mitchell, 1 F.3d 235 (4thCir. 1993) " 7 United States v. Seidman, 156 F.3d 542, 551 (4thCir.1998) 10 United States v. Tran Trang Cuong, 18F.3d 1132, , (4thCir. 1994) 5,8 Yates v. United States, 354 U.S. 298, 312 (1957), overruled on other grounds by Burks v. United States, 437 U.S. 1 (1978) 10

4 III United States Constitution Sixth Amendment 10 Miscellaneous Prescription Drug Diversion Prosecutions: Quick Reference Card 2002, October

5 I. STATEMENT OF COUNSEL In counsel's judgment, this proceeding involves one or more questions of exceptional importance, as follows: 1. The prosecutionis theory of criminal culpability, expressed on this record as the "standard of care," "medical necessity," and "legitimate medicine," is wrong as a matter of law. See Discussion, infra, The prosecution's erroneous theory of criminal culpability is derived from a Department of Justice "Quick Reference Card" (a guide to prosecuting physicians for drug offenses), that is systematically confusing the criminal and civil standards wherever and whenever it is used. See Discussion, infra, 7-8; I.A The prosecution's erroneous theory framed the facts and the arguments heard by the jury during 11 days of ltial. 4. The defense attorneys accepted the prosecution's misstatement of the law and defended the defendant-physicians only against malpractice. The defense attorneys never framed the facts or arguments to show the jury that the government's evidence of violations of the civil standard of care may prove malpractice but failed to prove the crimes charged. See Discussion, infra, Under Strickland, a petitioner alleging prejudice from his counsel's deficient performance "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 694 (1984). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.

6 2 This standard "is not a stringent one." Baker v. Barbo, 177 F.3d 149, 154 (3d Cir.1999) (citing Nix v. Whiteside, 475 U.S. 157,175 (1986». It is less demanding than the preponderance standard. Id. 6. The misuse of the civil standard of care evidence at trial illustrates the poor condition of the law and the need for a clear statement from this Court. Although the Fourth Circuit correctly differentiates between the civil and criminal standards (see Slip Opinion, 11-15), the Court limited its analysis to whether the evidence was relevant and thus admissible. The problem in the conduct of trial, however, was not the admission of the evidence, it was the pervasive framing of the facts and arguments by counsel that misrepresented the value of the civil standard of care to the jury. The attorneys never informed the jury that the evidence was relevant but not sufficient to prove the crimes charged. The attorneys on both sides of the case framed and argued the case as if it were sufficient. That characterization of the evidence denied the defendants a fair trial. 7. In order for the distinction between the civil and criminal standards to have any meaning, this Court is urged to remand for a fair trial based on the proper criminal standard, and not allow these convictions to stand, as they are the product of a trial infected with an erroneous standard of proof. n. ARGUMENT Defendants' claim on appeal that both the prosecution and the defense confused the _ci_v_il "standard of care" with the criminal culpability standard, and

7 3 only the District Court knew better. This Court appears to agree: Though the defense lawyers did not object to such evidence, the court expressed its concern that standard-of-care evidence might be irrelevant and confusing, in that it appeared to relate to civil negligence issues and not necessarily to whether the defendants had contravened the applicable criminal statutes. The prosecutors, as well as the defense lawyers, repeatedly assured the court that such evidence was relevant and appropriate. Slip Opinion, 6-7 (emphasis added). Nonetheless, this Court rejected defendants' ineffective assistance of counsel claims as inconclusive on the record, and further noted that if ineffective assistance occurred, the defendants were not prejudiced. See Slip Opinion, 16 and fn 11. As such, this Court has reached a harmless error conclusion. See Smith v. Dixon, 14 F.3d 956,974,976 (4th Cir. 1994) (en bane) (concluding that the prejudice inquiry under Strickland is essentially the same inquiry as the harmless error inquiry). Although this Court recognizes that the civil standard of care and the criminal culpability standard are two different legal standards (Slip Opinion, 11-14), in day-to-day practice, as in this case, both prosecution and defense lawyers confuse these two legal standards and try criminal cases under the civil standard. This record exposes the nature of the problem with clarity, i.e., once the civil standard of care becomes the de facto conviction standard (the "theme" of the trial), a curative jury instruction is simply a legal fiction that fails to protect the

8 4 rights of the accused.! The crux of this appeal is that the physicians were both prosecuted and defended under the wrong legal standard--the civil standard of care--variously expressed as the "standard of care," "medical necessity," and "legitimate medicine." Respectfully, the Court's opinion, focused on the admissibility of the evidence, did not answer the question posed by the defendants in this case. The problems here relate not to the admissibility of the evidence, but to the use of the evidence at trial, i.e., the framing of the issues and the arguments of counsel that repeatedly and pervasively equated a violation of the civil standard of care with criminal guilt. A. The prosecution and the defense misrepresented the weight of the evidence to the jury. The overall record reveals that the prosecution and defense were preoccupied with standard of care evidence and the meaning of such phrases as "medical necessity" and "legitimate medicine." Although the prosecution led the way with a mistaken understanding of the law, defense counsel provided ineffective assistance of counsel when they failed to: (1) catch and object to the 1 Juries are generally presumed to follow a judge's instructions. See, e.g., Richardson v. Marsh, 481 U.S. 200, 211 (1987). This general rule, however, is a pragmatic balancing of interests and not a statement of absolute faith in juries to actually be able to follow a judge's instructions: The rule that juries are presumed to follow their instructions is a pragmatic one, rooted less in the absolute certitude that the presumption is true than in the belief that it represents a reasonable practical accommodation of the interests of the state and the defendant in the criminal justice process. Richardson, supra, 481 U.S. at 211.

9 mistake; (2) identify the correct legal standard; and (3) furnish the physicians with 5 a constitutionally adequate defense that distinguished between a violation of the civil standard of care and a violation of the criminal law. This occurred despite the District Court's sua sponte objections. Indeed, it was the colloquy following the District Court's sua sponte objections (see, Opening Brief, pp (quoting excerpts of record)) that removes any doubt that neither the prosecution nor the defense understood the difference between the civil and criminal standards. While this Court has held (and reiterated in its opinion in this case, slip opinion pp , 15) that civil standard of care evidence may be relevant in a drug crime prosecution (United States v. Tran Trong Cuong, 18 F.3d 1132, , (4th Cir. 1994)), it has never held that such evidence is sufficient. To the contrary, this Court has held that such evidence fails to prove a criminal case. Id. at The problem here is that the trial attorneys argued the case as if such evidence were sufficient. B. This unusual record presents the Fourth Circuit with a unique opportunity to maintain the law There record makes clear that the prosecutor equated a violation of the civil standard of care with a violation of the criminal law. For example, on the third day of trial, the District Court became concerned that the record of proceedings would get unreasonably cluttered, and asked the prosecutor what his expert witnesses were going to say. The following colloquy occurred: Prosecutor Day: They are going to say they did not follow the proper procedure. But your honor, I think it is very probative in the case and would submit that one of the doctors at the clinic, when the

10 6 patients are rotating among them, and they are looking at the same records, another standard is, I submit, your honor, and I think you will be telling the jury, that these doctors have D.E.A. certificates. They are allowed to write these prescriptions if they are medically necessary. If it's not medically necessary - District Court: Does the statute say medically necessary? Prosecutor Day: Yes, sir. We tracked the statute in the indictment. If it's medically necessary, they haven't done anything wrong. If it's not medically necessary, they are drug dealing. So that's a huge issue, your honor. It could be the whole issue. l.a (emphasis added). Here, the prosecutor argued that the wrong legal standard, "medical necessity," was the culpability standard. He argued that it was "a huge issue," and "could be the whole issue."2 The error was pervasive, as the government's substitution of civil for criminal standards was profound. At trial, extensive standard of care evidence comprised much of the record (see, Opening Brief, pp ) and the prosecution continuously and profoundly framed the evidence and arguments under civil standards (see, Opening Brief, 17-29). On this record, it is evident that the prosecution pursued civil standard-based criminal convictions. In making similar arguments to the jury during an II-day trial, the 2 Perhaps most damning to the prosecutor's arguments to the District Court is that the statute nowhere mentions "medically necessary" or "medical necessity," which is a very strict standard, entirely at odds with the course of professional practice standard intended by Congress. Much of medical treatment is discretionary and therefore not necessary, and that fact does not make it criminal or even a violation of the standard of care. Patients may choose to be proactive, even experimental, in the treatment of their disease, and physicians may choose to be "aggressive treaters." Patients and physicians together may make difficult, sometimes futile treatment decisions, without violating the standard of care, much less committing a crime. Medical necessity is also a standard applied to insurance coverage. The easy example here is cosmetic surgery or dentistry, neither of which is "medically necessary" and therefore excluded from most insurance policies.

11 7 prosecutor committed misconduct, as explained in appellants' opening brief. The defendants should be given a new trial. Us. v. Mitchell, 1 F.3d 235, 238 (4th Cir. 1993) (if the prosecution's conduct deprives a defendant ofa fair trial, then defendant is entitled to a new trial). C. The government's confusion is institutional The government's mistake is deeply rooted and can be traced to a Department of Justice (DOJ) publication, also a part of this record. J.A The physicians were tried January 27 through February 10,2003. Two months earlier, the DOJ website offered a "Quick Reference Card," a legal memorandum described by the DOJ as "a basic guide to prosecuting prescription drug diversion cases." J.A The Quick Reference Card reveals that the DOl is enforcing a harsh application of the civil standard of care in criminal prosecutions. The Quick Reference Card provides in relevant part: Prescription Drug Diversion Prosecutions Quick Reference Card 2002 We intend this card to serve as a basic guide to prosecuting prescription drug diversion cases. What is a Legitimate Medical Purpose? A physician is acting with a legitimate medical purpose when he or she prescribes medical treatments that are in strict compliance with well-established and generally accepted medical guidelines, and administers medical treatments that appropriately and correctly address and relieve the present medical condition. 3 The full title of the document is "Prescription Drug Diversion Prosecutions: Quick Reference Card 2002, October 2002," and it was at one time available at:

12 8 What is the Usual Course of Professional Practice? A physician must act in a good faith manner that is in direct accordance with the reasonableness standard set forth in the medical community. la (bold in original; underscore added). This point cannot be emphasized too much: According to the DOl's Quick Reference Card, criminal culpability attaches whenever a physician fails to act in: strict compliance with well-established and generally accepted medical guidelines * * * in direct accordance with the reasonableness standard set forth in the medical community. Id. Although this definition of "legitimate medical purpose" and "course of professional practice" certainly comports with the prosecution's strategy in the instant case, including the prosecution's intense focus on "proper procedures," "medical necessity," and standard of care evidence and experts, it is too stringent to be enforced in a medical negligence action, much less a criminal proceeding. See, Gooding v. St. Francis Xavier Hosp., 326 S.C. 248, 254 (1997) (correctly stating the civil standard of care). D. The defense attorneys were ineffective in failing to recognize that the civil standard evidence may be relevant, but it was not sufficient. As did the prosecution, the defense attorneys believed that a violation of the civil standard of care proved criminal guilt. The defense attorneys failed to recognize this Court's settled precedent that "[a] criminal prosecution requires more." Tran Trong Cuong, 18 F.3d at Consequently, the defense attorneys joined with the prosecution in arguing against the District Court's sua sponte

13 9 objections to the framing of the evidence under the civil standard. See, Opening Brief, pp The defense attorneys framed the defense under the civil standard of care (see, Opening Brief, pp ), ignoring the fact that a jury determination that the physicians' conduct fell below the civil standard would not be sufficient to convict the physicians of any crime. The defense attorneys failed to argue the evidence to the jury in a way that would drive that point home. Again, it is inapposite that the civil standard evidence was relevant. The problem is that the defense attorneys allowed the evidence to be dispositive. The defense attorneys never argued to the jury that, although the evidence might prove malpractice, that alone did not suffice to prove criminal guilt. The defense attorneys never offered the jury that middle ground. Instead, the defense attorneys framed the case and their arguments to depend on a jury determination that the defendant-physicians did not violate the civil standard of care. In truth, the jury did not need to go so far to acquit. By arguing the wrong standard and allowing conviction on a lesser burden of proof than was required, the defense attorneys' perforn1ance undermines confidence in the verdict and constitutes ineffective assistance of counsel Strickland, 466 U.S. at 694. The ineffective assistance of counsel is not harmless. Even a defendant faced with evidence of guilt is entitled to a fair trial in which competent counsel argues the correct standards of acquittal and conviction. The jury should have been challenged to make a credibility determination on Dr. Woodward, an admitted fraud and felon. Instead, the defense attorneys permitted the jury to

14 10 convict their client based on evidence of malpractice alone, without reaching and evaluating the other evidence. That cannot pass constitutional muster. The defendants are entitled to a new trial with effective counsel as guaranteed by the Sixth Amendment. See, e.g., United States v. Fisher, 477 F.2d 300,304 (4th Cir. 1973) (ordering new trial on direct appeal where ineffective assistance of counsel deprived defendant of Sixth Amendment right to counsel). See also, Yates v. United States, 354 U.S. 298, 312 (1957), overruled on other grounds by Burks v. United States, 437 U.S. 1 (1978) (the verdict must be set aside "where the verdict is supportable on one ground, but not on another, and it is impossible to tell which ground the jury selected"); United States v. Seidman, 156 F.3d 542,551 (4th Cir. 1998) (same). In. CONCLUSION FOR THE FOREGOING REASONS, appellants urge this Court to grant rehearing, and, if denied, then rehearing en bane. RESPECTFULLY SUBMITTED, ~- Eli D. Stutsman, for Deborah. Bordeaux, M.D. ione. Lofton, for Ricardo U. Alerre, M.D. F~ (ckson,jr~;;- G.~ Deborah S. Bordeaux, M.D. ~ Bctts,-fO-~ Michael D. Jackson, M.D.

15 CERTIFICATE OF FILING AND SERVICE I certify that I filed the foregoing APPELLANTS' PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC on December 15, 2005, pursuant to Local Rule 31 (c) and (d) by sending the original petition and twenty copies thereof via UPS overnight delivery on December 14,2005 to: Clerk, United States Court of Appeals for the Fourth Circuit 1100 East Main Street, Suite 501 Richmond, Virginia I further certify that I served the foregoing APPELLANTS' PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC via UPS overnight delivery on December 14, 2005 to: Thomas E. Booth Attorney Appellate Section Criminal Division Department of Justice 950 Pennsylvania Avenue Room 1511 Washington, DC y~- Eli D. Stutsman Of Attorneys for Appellate Deborah S. Bordeaux, M.D.