No IN THE Supreme Court of the United States PERRY REESE, III,

Transcription

1 No IN THE Supreme Court of the United States PERRY REESE, III, v. UNITED STATES OF AMERICA, Petitioner, Respondent. On Petition for a Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit BRIEF OF AMICUS CURIAE THE ASSOCIATION OF AMERICAN PHYSICIANS & SURGEONS IN SUPPORT OF PETITIONER ANDREW L. SCHLAFLY 939 OLD CHESTER ROAD FAR HILLS, NJ (908) aschlafly@aol.com Counsel for Amicus

2 ii QUESTION PRESENTED Whether a physician can be properly convicted for his medical decisions, and sentenced to imprisonment for 20 years, without proof beyond a reasonable doubt that he had mens rea by acting with an illegitimate medical purpose.

3 iii TABLE OF CONTENTS Page QUESTION PRESENTED... ii TABLE OF CONTENTS... iii TABLE OF AUTHORITIES... iv INTEREST OF AMICUS CURIAE... 1 STATEMENT OF CASE... 3 SUMMARY OF ARGUMENT... 7 ARGUMENT... 9 I. THE ELIMINATION OF THE MENS REA REQUIREMENT OR GOOD FAITH DEFENSE IS AN ISSUE OF NATIONAL IMPORTANCE II. THE PETITION FOR CERTIORARI SHOULD BE GRANTED TO RESOLVE THE CIRCUIT SPLIT CONCLUSION... 15

4 iv TABLE OF AUTHORITIES Page(s) CASES American Communications Assn. v. Douds, 339 U.S. 382 (1950)... 7 Association of American Physicians & Surgeons v. Clinton, 997 F.2d 898 (D.C. Cir. 1993)... 2 Association of American Physicians & Surgeons v. Mathews, 423 U.S. 975 (1975)... 2 Cheney v. United States Dist. Court, 542 U.S. 367 (2004)... 2 Dennis v. United States, 341 U.S. 494 (1951)... 7 District of Columbia v. Heller, 554 U.S. 570 (2008)... 2 Kolender v. Lawson, 461 U.S. 352 (1983) Mackay v. Dea, 2011 U.S. App. LEXIS (10th Cir. Dec. 23, 2011)... 6, 11, 14 Morissette v. United States, 342 U.S. 246 (1952) Springer v. Henry, 435 F.3d 268 (3d Cir. 2006)... 2 State v. Naramore, 25 Kan. App. 2d 302 (1998) State v. Nucklos, 121 Ohio St. 3d 332 (2009)... 6 Stenberg v. Carhart, 530 U.S. 914 (2000)... 2 Sykes v. United States, 131 S. Ct (U.S. 2011) United States v. Bamdad, 2011 U.S. App. LEXIS (9th Cir. Nov. 23, 2011) United States v. Blarek, 7 F. Supp. 2d 192 (E.D.N.Y. 1998))... 9

5 v United States v. Brown, 553 F.3d 768 (5th Cir. 2008) United States v. Chube, 538 F.3d 693 (7th Cir. 2008) United States v. Feingold, 454 F.3d 1001 (9th Cir. 2006) United States v. Linder, 268 U.S. 5 (1925) United States v. Moore, 423 U.S. 122 (1975) United States v. Norris, 780 F.2d 1207 (5th Cir. 1986) United States v. Reese, 2011 U.S. App. LEXIS (4 th Cir. Aug. 2, 2011)... passim United States v. Rosen, 582 F.2d 1032 (5th Cir. 1978) United States v. Rosenberg, 585 F.3d 355 (7th Cir. 2009) United States v. Wood, 207 F.3d 1222 (10 th Cir. 2000) STATUTES Controlled Substances Act (CSA), 21 U.S.C passim OTHER AUTHORITIES Immanuel Kant, The Metaphysical Elements of Justice (Part I of The Metaphysics of Morals, John Ladd ed. & trans., Bobbs- Merrill Co., 1965) (1797)... 9

6 vi Jane M. Orient, M.D., Health Bill Would Shackle Doctors Literally, The Wall Street Journal (May 30, 1996)... 2 INTERNET inst.htm... 5

7 No IN THE Supreme Court of the United States PERRY REESE, III, Petitioner, v. UNITED STATES OF AMERICA, Respondent. On Petition for a Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit INTEREST OF AMICUS CURIAE 1 Amicus Association of American Physicians & Surgeons, Inc. ( AAPS ), is a national association of physicians. Founded in 1943, AAPS has been dedicated to the highest ethical standards of the Oath of Hippocrates and to preserving the sanctity of the patient-physician relationship. AAPS has been a litigant in this Court and in other appellate courts. 1 This brief is filed with the written consent of all parties, with timely notice provided in compliance with Sup. Ct. Rule 37.2(a). Pursuant to its Rule 37.6, counsel for amicus curiae authored this brief in whole, and no counsel for a party authored this brief in whole or in part, nor did any person or entity, other than amicus, its members, or its counsel make a monetary contribution to the preparation or submission of this brief.

8 2 See, e.g., Cheney v. United States Dist. Court, 542 U.S. 367, 374 (2004) (citing Association of American Physicians & Surgeons v. Clinton, 997 F.2d 898 (D.C. Cir. 1993)); Association of American Physicians & Surgeons v. Mathews, 423 U.S. 975 (1975). In addition, this Court has expressly made use of amicus briefs submitted by AAPS in high profile cases. See, e.g., Stenberg v. Carhart, 530 U.S. 914, 933 (2000); id. at 959, 963 (Kennedy, J., dissenting); District of Columbia v. Heller, 554 U.S. 570, 704 (2008) (Breyer, J., dissenting). The Third Circuit also cited an amicus brief by AAPS in the first paragraph of one of its decisions. See Springer v. Henry, 435 F.3d 268, 271 (3d Cir. 2006). AAPS has long opposed the criminalization of medicine, dating back at least to 1996 when its Executive Director, Jane Orient, M.D., wrote a muchpublicized editorial about it in the Wall Street Journal. See Jane M. Orient, M.D., Health Bill Would Shackle Doctors Literally, The Wall Street Journal A14 (May 30, 1996) (observing how physicians are being denied the same due process rights as people accused of rape or aggravated assault ). The criminalization of medicine chills innovation, causes the denial of care to patients, and results in shortages of physicians. AAPS has a strong interest in opposing the elimination of the mens rea requirement in the prosecution of physicians. Accordingly, AAPS has an interest in this case.

9 3 STATEMENT OF CASE Perry Reese, III, M.D., was a small practitioner helping an underserved area of rural North Carolina, earning roughly $65,000 a year. Tr. Day 4, at 5 (Doc. 79); Tr. Sentencing Proceedings, at 5. Like many small-town physicians, Dr. Reese was informal and flexible in responding to patient needs. For example, while Dr. Reese was relocating he felt obligated to accommodate patients requests by seeing some of them outside of his office, similar to house calls. Id. at Dr. Reese, an African American, had one disgruntled patient whose son-in-law was the Captain of Detectives for the Sampson County Sheriff s Department. Tr. Day 3 (Frye Testimony), at 24 (Doc. 75). This patient and his son-in-law arranged for a sting operation against Dr. Reese, using an undercover agent to pose as a patient. Id. at Although unaware that he was being set up, Dr. Reese nevertheless told the undercover agent that he did not and would not sell any pills. Specifically, Dr. Reese testified in his own defense that he told the undercover agent (as she posed as a patient) emphatically that [he] never had any pills to sell [and] she became very angry at him for saying that. Tr. Day 5 (Reese Testimony), at 150 (Doc. 80). As reflected by that incident and Dr. Reese s extensive testimony at trial, there was no evidence that Dr. Reese had the mens rea required for the criminal convictions and a 20-year prison sentence. But the Court of Appeals for the Fourth Circuit held in conflict with other Circuits that such proof was

10 4 not necessary. United States v. Reese, 2011 U.S. App. LEXIS 16037, *8-*9 (4 th Cir. Aug. 2, 2011). Instead, the Fourth Circuit recounted bartering practices of Dr. Reese hardly unusual for an underserved rural area as though it were criminal: [A patient] gave him rings, watches, a generator, and other items that Reese told her he wanted from the pawnshop where she worked. Id. at *7. An $800-per-hour expert for the government detailed his disapproval of Dr. Reese s small-town methods, none of which supported the serious charges against him: (1) failing to conduct proper examinations, diagnosis, and follow-up, (2) issuing patients prescriptions in others names, (3) re-dispensing pills that patients had returned to him, (4) selling pills directly to patients without a dispensing license, (5) charging for a prescription without seeing the patient, (6) routinely prescribing medications outside of the office setting, (7) prescribing patients up to 20 pills per day, and (8) recommending that one of his patients chew OxyContin. Id. at *8; Tr. Day 3 (Romanoff Testimony), at 103 (Doc. 69). The expert for the government concluded, as summarized by the appellate court, that these were all inappropriate behaviors and beyond the bounds of professional medical practice. Reese, 2011 U.S. App. LEXIS 16037, at *8. But this testimony, while possibly supportive of a malpractice claim if actual harm resulted, does not prove criminal intent for the serious charges at issue here.

11 5 No patient was demonstrably injured by Dr. Reese s practices at issue here, and none were cited by the decision below in affirming a 20-year prison sentence of Dr. Reese. Id. at *1, *11-*15. For example, in contrast with analogous cases, no patients died of overdoses and Dr. Reese was not even a high-volume prescriber. But a virtually unprecedented application of the Racketeer Influenced and Corrupt Organizations Act (RICO) against this small-town medical practice, despite its lack of a meaningful separate criminal enterprise, led to this unjust result. Id. at *1, *9-*11. This draconian sentence of 20 years in prison is far beyond the sentences of others in comparable situations. 2 Dr. Reese s prison term was based on the trial court s refusal to take into consideration that most, and perhaps all, of the prescriptions written by Dr. Reese were in good faith. Tr. Sentencing Proceedings, at 11 (Feb. 18, 2010). Instead, this unprecedented sentence on the evidence presented was based on an unproven assumption that virtually all of Dr. Reese s prescriptions for controlled substances somehow constituted drug dealing. Reese, 2011 U.S. App. LEXIS 16037, *11 (rejecting defendant s argument that the district court improperly calculated the quantity of drugs attributable to his conduct by failing to exclude prescriptions written in good faith ). 2 For example, Dr. Jeri Hassman faced similar accusations and received a plea agreement of no imprisonment, 2 years probation, and 100 hours of community service and continued practicing medicine. (viewed 12/25/11).

12 6 The prosecution, conviction and harsh sentencing of Dr. Reese were chillingly similar to that of another African American physician, Dr. William Nucklos in Ohio. 3 Dr. Nucklos, like Dr. Reese, was sentenced to 20 years in prison and Dr. Nucklos, like Dr. Reese, was prosecuted based on only a few patients. Dr. Nucklos, like Dr. Reese, was helping in an underserved area, and both became the scapegoat for a broader drug problem for which they were not responsible. Subsequently an Ohio appellate court overturned Dr. Nucklos s conviction and sentence, and the Ohio Supreme Court affirmed the appellate court reversal of his conviction. State v. Nucklos, 121 Ohio St. 3d 332, 337 (2009). The facts presented against Dr. Reese may support revocation of a Drug Enforcement Agency (DEA) registration, which would immediately end any risk of harm to the public. See, e.g., Mackay v. Dea, 2011 U.S. App. LEXIS 25684, *4-*5 (10th Cir. Dec. 23, 2011) (physician allegedly had issued prescriptions for controlled substances to a patient even after she told him she shared her prescription drugs with another person, had exchanged prescription drugs for sexual favors, [lacked] a legitimate medical purpose and had been prescribing extraordinarily large amounts of highly addictive opioids ). But instead of allowing an efficient and immediately effective administrative remedy, the lower court affirmed a 20-year prison sentence against Dr. Reese without proof of criminal intent justifying such a long sentence. 3 (viewed 12/24/11)

13 7 SUMMARY OF ARGUMENT The existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo- American criminal jurisprudence. Dennis v. United States, 341 U.S. 494, 500 (1951) (citing American Communications Assn. v. Douds, 339 U.S. 382, 411 (1950)). A civilized society requires proof of criminal intent before imposing nearly a life sentence. Yet the 20-year prison sentence against Dr. Reese lacked proof of mens rea to justify both the lengthy sentence and its underlying conviction. The Fourth Circuit eliminated the requirement of mens rea for sentencing this physician with no prior criminal history to 20 years in prison, for conduct handled in other jurisdictions by merely revoking the physician s Drug Enforcement Agency (DEA) registration. Such a vast disparity in punishment illustrates a legal defect, and that flaw is a lack of adherence to the essential mens rea requirement. In applying the Controlled Substances Act (CSA), 21 U.S.C. 841, against physicians for prescribing medication which is the proper job of physician proof of mens rea requires evidence that the physician did not write those prescriptions in good faith as part of his medical practice. An essential element of proof for this crime must include a lack of good faith by the physician. Criminal intent for distributing controlled substances by someone authorized to do so licensed physicians holding DEA registrations must include something far more than what is required to convict an ordinary drug dealer. Several Circuits have properly affirmed this basic right. Without this defense, an innovative or

14 8 unconventional physician is vulnerable to unjust prosecution. When mens rea is not a required element of the crime, good physicians refrain from doing their best for patients, for fear that an overzealous prosecutor may seek 20-year sentences against them for practicing medicine. And when physicians are frightened away from practicing medicine in good faith, patients suffer. Despite these well-recognized principles and obvious policy considerations, the Fourth Circuit rejected this requirement of mens rea and instead criminalized acts that are outside the usual course of professional practice. Unconventional or innovative medicine becomes criminal under this novel Fourth Circuit standard, even when the physician acts in good faith. The resultant injustice when the requirement of mens rea is abandoned is illustrated perfectly and tragically by this case. A well-intentioned but informal physician has been sent to prison for 20 years, not for harming anyone, but for practicing medicine differently from others. The conviction was based primarily on testimony by a government witness that he disapproved of how the wellintentioned defendant, Dr. Reese, practiced medicine. Criminalizing the good faith practice of medicine is an issue of national significance, for physicians and patients alike. It is also an issue that splits the Circuits. The good faith practice of medicine should not be a crime simply because someone disapproves. Otherwise many innovators of medicine will either end up behind bars, or refrain from advancing the frontiers of the profession for fear of arbitrary prosecution with overly harsh sentences.

15 9 Immanuel Kant properly rejected punishing defendants for any reason, even a utilitarian reason, other than defendants own criminal culpability: Juridical punishment can never be used merely as a means to promote some other good for the criminal himself or for civil society, but instead it must in all cases be imposed on him only on the ground that he has committed a crime; for a human being can never be manipulated merely as a means to the purposes of someone else and can never be confused with the objects of the Law of things. Immanuel Kant, The Metaphysical Elements of Justice (Part I of The Metaphysics of Morals) 100 (John Ladd ed. & trans., Bobbs-Merrill Co., 1965) (1797) (quoted in United States v. Blarek, 7 F. Supp. 2d 192, (E.D.N.Y. 1998)). The Petition for Certiorari should be granted to restore the mens rea requirement. ARGUMENT The constitutional and statutory requirement of mens rea ensures that lack of good faith must remain an element to be proven when prosecuting a physician under 21 U.S.C Holding otherwise, as the Fourth Circuit did below, places physicians at risk and results in denial of care to their patients. This has consequences of national significance for both the medical profession and the millions of Americans who need good faith prescriptions to alleviate pain and other maladies. The Petition for Certiorari should be granted to correct the error below on such a substantial matter.

16 10 The Petition should also be granted to resolve the Circuit split created by the decision below. I. THE ELIMINATION OF THE MENS REA REQUIREMENT OR GOOD FAITH DEFENSE IS AN ISSUE OF NATIONAL IMPORTANCE. This 20-year prison sentence of a highly skilled professional for practicing his trade in good faith, without a finding of mens rea, is unprecedented in Anglo-American law. This Court has emphasized that a finding of criminal intent is fundamental requirement: The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil. Morissette v. United States, 342 U.S. 246, 250 (1952). When criminalizing a medical practice for writing a prescription, the elements of proof must include a lack of good faith by the physician. See United States v. Moore, 423 U.S. 122 (1975). This was an error of national significance, inconsistent with both with the statute and the U.S. Constitution, for the Fourth Circuit to strip away this good faith defense. In United States v. Moore, this Court approved of how the trial judge: instructed the jury that it had to find beyond a reasonable doubt that a physician, who knowingly

17 11 or intentionally, did dispense or distribute [methadone] by prescription, did so other than in good faith for detoxification in the usual course of a professional practice and in accordance with a standard of medical practice generally recognized and accepted in the United States. Id. at (emphasis added). The Moore jury was thus expressly instructed to convict or acquit based on its finding about good faith. See also United States v. Linder, 268 U.S. 5, 18 (1925) (acquittal required if the jury found that defendant-physician acted in good faith in prescribing narcotics). Many innovative physicians advance medical practice beyond the usual course of medical practice, so that cannot be the proper test for criminal prosecution. Every unconventional physician practices differently from others. It is not a crime to do so, and certainly does not prove the charges against Dr. Reese. Lack of good faith must remain the essential test of criminal conduct in this context. There is an easy, immediate means for addressing any real problem of improper medical prescriptions by a physician: simply take away his DEA registration and/or his license to practice medicine. See, e.g., Mackay v. Dea, discussed supra p. 6. Any improper medical prescriptions then immediately stop. But that is not what occurred here, and in cases in like it. Rather, a 20-year imprisonment was obtained by an unusual application of the RICO laws and in bypassing the mens rea requirement. To obtain this draconian result, the Fourth Circuit lowered the standard for proving guilt, which will lead to further criminalization of the practice of

18 12 medicine. The decision below exceeds statutory authority and violates constitutional protections. A physician should not be sent to prison for nearly the rest of his life simply because a jury disagrees with how he practices medicine in the developing field of pain management. There was never a bona fide finding of criminal intent that Dr. Reese was engaging in drug dealing, and this sentence based on a lack of finding of criminal intent should be reversed. State courts have been more protective of the fundamental requirement of mens rea. The Supreme Court of Kansas properly overturned the conviction of a physician when there was reasonable doubt about criminal intent. State v. Naramore, 25 Kan. App. 2d 302 (1998). In an observation particularly applicable here, that court said, there is a reason why there has yet to be in Anglo-American law an affirmed conviction of a physician for homicide arising out of medical treatment based on such highly controverted expert evidence as here. Id. at 322. Yet Dr. Reese was sentenced to 20 years in prison not for criminal acts with proof criminal intent, but merely for prescribing medication outside the usual course of medical practice. It is not a crime to be unconventional, and the Petition for Certiorari should be granted to clarify that proof of mens rea is required.

19 II. 13 THE PETITION FOR CERTIORARI SHOULD BE GRANTED TO RESOLVE THE CIRCUIT SPLIT. The decision below conflicts with other Circuits in eliminating the requirement of mens rea for convicting and sentencing physicians. Certiorari should be granted here to resolve that Circuit split. As explained by Point II of the Petition, Pet. at 10-11, several other Circuits have required proof of criminal intent that a physician prescribed for a reason other than a legitimate medical purpose as a condition for conviction under 21 U.S.C This requirement is not satisfied by merely producing an expert to testify that he disapproved of how a defendant practiced medicine. The Court of Appeals for the Fifth Circuit established that a conviction of a physician for violating 21 U.S.C. 841(a)(1) requires proof that he acted knowingly and intentionally and that he did so other than for a legitimate medical purpose and in the usual course of his professional practice. United States v. Norris, 780 F.2d 1207, 1209 (5th Cir. 1986) (quoting United States v. Rosen, 582 F.2d 1032, 1033 (5th Cir. 1978)). See also United States v. Brown, 553 F.3d 768, 781 (5th Cir. 2008) (affirming the burden of proof that prescriptions were other than for a legitimate medical purpose ). But the Fourth Circuit below dropped this essential element of criminal intent, requiring proof that the prescriptions were not for a legitimate medical purpose. United States v. Reese, 2011 U.S. App. LEXIS 16037, at *5. Similarly, the Seventh Circuit has adhered to a requirement of proof of criminal intent before

20 14 convicting a physician under 21 U.S.C. 841(a)(1). See, e.g., United States v. Rosenberg, 585 F.3d 355, 357 (7th Cir. 2009) ( In order for a prescription to be unlawful it must not have a legitimate medical purpose and must be dispensed outside the usual course of medical practice. ) (citing United States v. Chube, 538 F.3d 693, 702 (7th Cir. 2008)). The Ninth Circuit has also repeatedly required proof by the prosecution that a physician s prescribing was done without a legitimate medical purpose. United States v. Bamdad, 2011 U.S. App. LEXIS 23598, *3 (9th Cir. Nov. 23, 2011) (citing United States v. Feingold, 454 F.3d 1001, 1008 (9th Cir. 2006)). Even the standard used by the Drug Enforcement Agency itself for seeking revocation of its registration requires evidence that prescribing was done without a legitimate medical purpose. Mackay v. Dea, 2011 U.S. App. LEXIS 25684, *4 (10th Cir. Dec. 23, 2011). Far less evidence of wrongdoing was recounted in Dr. Reese s case here than in the Mackay case, and yet Dr. Reese was sentenced to a 20-year imprisonment while it was a close question whether to merely revoke Dr. Mackay s DEA registration in that decision. To the extent this conflict between the Fourth Circuit below and the other Circuits is due to a lack of statutory clarity, it is time to overturn 20-year sentences based on such statutory vagueness. See, e.g., Sykes v. United States, 131 S. Ct. 2267, 2284 (U.S. 2011) (Scalia, J., dissenting) ( We should admit that [the statute s] residual provision is a drafting failure and declare it void for vagueness. ) (citing Kolender v. Lawson, 461 U.S. 352, 357 (1983)).

21 15 In the context of a patient death which did not occur here [w]ell-intentioned but inappropriate medical care, standing alone, does not raise an inference that a killing was deliberate, willful, and premeditated. United States v. Wood, 207 F.3d 1222, 1232 (10 th Cir. 2000). Similarly, lack of good faith is not to be inferred from an informal, or even unconventional, rural practice. The record below simply does not support a prison sentence of 20 years for this physician, and the legal defect was the lack of proof of criminal intent. CONCLUSION The Petition for Certiorari should be granted. Respectfully submitted, Dated: December 29, 2011 ANDREW L. SCHLAFLY 939 OLD CHESTER ROAD FAR HILLS, NJ (908) aschlafly@aol.com Counsel for Amicus