454 F.3d 1001 (9th Cir. 2006), 05-10037, United States v. Feingold

Docket Nº:05-10037.
Citation:454 F.3d 1001
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey H. FEINGOLD, Defendant-Appellant.
Case Date:July 21, 2006
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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454 F.3d 1001 (9th Cir. 2006)

UNITED STATES of America, Plaintiff-Appellee,

v.

Jeffrey H. FEINGOLD, Defendant-Appellant.

No. 05-10037.

United States Court of Appeals, Ninth Circuit.

July 21, 2006

Argued and Submitted April 4, 2006.

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the District of Arizona, D.C. No. CR-02-00976-SMM, Stephen M. McNamee, District Judge, Presiding.

COUNSEL

Michele R. Moretti, Lake Butler, Florida, for the appellant.

Paul Charlton, United States Attorney, John Joseph Tuchi, Deputy Appellate Chief, Linda C. Boone, Assistant United States Attorney, Phoenix, Arizona, for the appellee.

Before: Alfred T. Goodwin, Betty B. Fletcher, and Raymond C. Fisher, Circuit Judges.

OPINION

B. FLETCHER, Senior Circuit Judge.

Under the Controlled Substances Act (CSA), it is unlawful for "any person" knowingly or intentionally to distribute or dispense a controlled substance. 21 U.S.C. § 841(a). Although the CSA makes exceptions to this prohibition for certain individuals who are registered "practitioners" under the Act, such as physicians and pharmacists, see 21 U.S.C. §§ 821-23, the Supreme Court has held that these practitioners are still subject to criminal prosecution "when their activities fall outside the usual course of professional practice." United States v. Moore, 423 U.S. 122, 124, 96 S.Ct. 335, 46 L.Ed.2d 333 (1975); see also 21 C.F.R. § 1306.04 (providing that a practitioner "shall be subject to the penalties . . . relating to controlled substances" unless the prescriptions he writes are "issued for a legitimate medical purpose . . . [and he is] acting in the usual course of his

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professional practice"). Thus, a physician remains criminally liable when he ceases to distribute or dispense controlled substances as a medical professional, and acts instead as a "pusher." Moore, 423 U.S. at 138, 143, 96 S.Ct. 335.

Dr. Jeffrey Feingold, a naturopathic physician licensed by the State of Arizona, was convicted on 185 counts of illegally distributing controlled substances, in violation of 21 U.S.C. § 841(a). He contends that his conviction is constitutionally infirm due to improperly admitted testimony and erroneous jury instructions. The thrust of both of these objections is that the district court permitted the jury to convict him upon finding that he was merely an incompetent doctor, rather than upon the necessary finding that his conduct was so egregious as to render him criminally liable. He also argues that his sentence is invalid because the district court improperly relied on facts not found by the jury and because the district court denied his request for a two-level reduction in his offense level.

Although we hold that Dr. Feingold's arguments are without merit, we vacate his sentence and remand for resentencing pursuant to United States v. Beng-Salazar, 452 F.3d 1088 (9th Cir. July 6, 2006).

I.

Dr. Feingold graduated in 1976 from the National College of Naturopathic Medicine and, after completing an internship and residency, began his career in Philadelphia. In 1990, he moved to Arizona, where he later opened his own practice. In 2000, the State of Arizona granted naturopathic physicians authority to prescribe Schedule II, III, IV, and V controlled substances. In August of 2002, Arizona curtailed this authority, prohibiting naturopathic physicians from prescribing Schedule II drugs, with the exception of morphine. Dr. Fein-gold obtained from the Drug Enforcement Agency (DEA) the necessary certification to prescribe controlled substances. The prescriptions written by him pursuant to this certification became the basis for a 185-count indictment. The government alleged that Dr. Feingold abused his status as a licensed practitioner to distribute controlled substances outside the course of his professional practice.

At trial, the government presented evidence from several of Dr. Feingold's so-called patients. Their testimony against him overwhelmingly demonstrated his disregard for proper prescribing practices. For example, several patients testified that they received prescriptions from Dr. Feingold even though he had never physically examined them and even though he never recorded the medical basis for prescribing these controlled substances in his patients' medical charts. Other patients testified that he had given them controlled substances even though he knew that they were recovering drug addicts. Others testified that they received prescriptions even though Dr. Feingold had never met with them. Dr. Feingold provided pills to one patient in exchange for having the patient paint his house, even though the prescriptions had ostensibly been issued for the patient's back pain. The record also indicates that Dr. Feingold continued to prescribe Schedule II narcotics even after Arizona had revoked the authority of naturopathic physicians like him to prescribe them.

Further, Dr. Feingold prescribed these substances in excess of the maximum dosages he recommended. In one case, in a single month he provided twenty-eight prescriptions to one patient, each for 120 pills — a total of more than 3,000 Oxycodone and Oxycontin pills. In another case, he prescribed as many as 2,000 pills in a single month, despite the fact that the recommended maximum dosage would

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have allowed the consumption of only 186, to a patient who testified that he resold the pills to others. He liberally provided prescriptions for Hydrocodone, Percocet, Vicodin, Valium, Oxycontin, Oxycodone, and morphine, sometimes refilling these prescriptions at intervals of only two days, or even daily. Dr. Feingold also charged his patients by the number of prescriptions he wrote.

The evidence presented by Dr. Feingold's "patients" also included the testimony of two undercover DEA agents who had obtained prescriptions for controlled substances both for themselves and for each other. Dr. Feingold issued prescriptions to one of these agents without examining her, and on one occasion, before he had even met her. At least one of these prescriptions was written for a Schedule II drug after Arizona had made it illegal for naturopathic physicians to dispense them. Finally, these agents testified that Dr. Feingold had advised them to refill their prescriptions at a particular pharmacy because certain other pharmacists had refused to fill his prescriptions.

In addition to this evidence, the government presented two expert witnesses — a naturopathic doctor named Dr. Thomas Kruzel, and a medical doctor named Dr. Michael Ferrante. Both experts testified about the standard of care with which medical professionals generally must comply, and both of them indicated that Dr. Feingold's conduct fell far short of applicable professional standards. For instance, Dr. Kruzel testified that many of the prescriptions written by Dr. Feingold were "medically unnecessary" and that Dr. Feingold's practice of prescribing narcotic drugs without conducting adequate physical examinations or taking his patients' medical history was "highly unusual" and "outside the usual course of naturopathic medicine." Likewise, Dr. Ferrante testified that Dr. Feingold's prescription practices had failed to comply with generally observed professional guidelines, that Dr. Feingold had kept inadequate records, and that Dr. Feingold had prescribed unusually high and frequent doses of narcotic drugs. In addition, both experts consistently and unambiguously testified that Dr. Feingold's conduct was outside the course of usual professional practice and that there was no legitimate medical purpose for the 185 prescriptions identified in the indictment.

In his defense, Dr. Feingold presented as an expert witness a naturopathic doctor named Dr. Michael Cronin. This expert initially indicated that he believed a legitimate medical purpose existed for all of Dr. Feingold's prescriptions and that Dr. Feingold had issued all of his prescriptions in the good-faith belief that his patients needed them. He explained that the prescription of high levels of opioid medications was not atypical in treating pain. On cross-examination, however, the expert retracted much of his testimony and admitted that the volume and frequency of most of the prescriptions was probably "excessive" and "outside the usual course of professional practice and without a legitimate medical reason."

Finally, Dr. Feingold testified in his own defense. He admitted writing all of the prescriptions identified in the indictment. He also admitted that, in retrospect, the prescriptions he issued were not used for a valid medical purpose, that he was practicing as an "incompetent" doctor, and that his method of prescribing controlled substances would be considered "outside the usual course of professional practice." He explained, however, that the reason for these excessive prescriptions was that he lacked training in "opioid medication management" and that he "wasn't trained to recognize opioid seekers." He claimed that he had always issued prescriptions in

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the genuine belief that they were necessary to treat his patients' legitimate and serious medical conditions. Dr. Fein-gold insisted that he had been prescribing the drugs in good faith to help his patients manage their pain and that he had naively believed them when they told him they needed more pills.

The district court instructed the jury that it had to find three elements in order to convict Dr. Feingold under § 841(a) as a licensed practitioner:

First, the government must prove beyond a reasonable doubt that the defendant distributed a controlled substance....

Second, the government must prove beyond a reasonable doubt that the defendant distributed the...

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