459 F.3d 463 (4th Cir. 2006), 05-4474, United States v. Hurwitz

Docket Nº:05-4474.
Citation:459 F.3d 463
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. William Eliot HURWITZ, Defendant-Appellant. American Academy of Pain Medicine; The Association of American Physicians & Surgeons; the American Pain Foundation; the National Pain Foundation; the National Foundation for the Treatment of Pain; National Association of Criminal Defense Lawyers; Russell K.
Case Date:August 22, 2006
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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459 F.3d 463 (4th Cir. 2006)

UNITED STATES of America, Plaintiff-Appellee,

v.

William Eliot HURWITZ, Defendant-Appellant.

American Academy of Pain Medicine; The Association of American Physicians & Surgeons; the American Pain Foundation; the National Pain Foundation; the National Foundation for the Treatment of Pain; National Association of Criminal Defense Lawyers; Russell K. Portenoy; Richard Payne; Peggy Compton; Celeste Johnson; Robert Twillman; William L. Marcus, Amici Supporting Appellant

No. 05-4474.

United States Court of Appeals, Fourth Circuit.

Aug. 22, 2006

Argued: March 17, 2006.

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ARGUED:

Lawrence S. Robbins, Robbins, Russell, Englert, Orseck & Untereiner, L.L.P., Washington, D.C., for Appellant.

Richard Daniel Cooke, Special Assistant United States Attorney, Office of the United States Attorney, Alexandria, Virginia, for Appellee.

ON BRIEF:

Donald J. Russell, Damon W. Taaffe, Robbins, Russell, Englert, Orseck & Untereiner, L.L.P., Washington, D.C., for Appellant.

Paul J. McNulty, United States Attorney, Gene Rossi, Assistant United States Attorney, Mark D. Lytle, Assistant United States Attorney, Alexandria, Virginia, for Appellee.

Jack R. Bierig, Sidley Austin Brown & Wood, L.L.P., Chicago, Illinois; Eamon P. Joyce, Sidley Austin Brown & Wood, L.L.P., Washington, D.C., for Amicus Curiae, American Academy of Pain Medicine, Supporting Appellant. Andrew L. Schlafly, Far Hills, New Jersey, for Amicus Curiae, The Association of American Physicians & Surgeons, Supporting Appellant. Samuel Rosenthal, Curtis, Malletprevost, Colt & Mosle, L.L.P., Washington, D.C., for Amici Curiae, The American Pain Foundation, The National Pain Foundation, and The National Foundation for the Treatment of Pain, Supporting Appellant. Joshua L. Dratel, Co-Chair, NACDL, Amicus Committee, New York, New York; Robert P. Marcovitch, Atlanta, Georgia, for Amicus Curiae, National Association of Criminal Defense Lawyers, Supporting Appellant. David T. Goldberg, New York, New York; Sean H. Donahue, Washington, D.C., for Amici Curiae, Russell K. Portenoy, Richard Payne, Peggy Compton, Celeste Johnston, Robert Twillman, and William L. Marcus, Supporting Appellant.

Before WIDENER and TRAXLER, Circuit Judges, and CAMERON McGOWAN CURRIE, United States District Judge for the District of South Carolina, sitting by designation.

Vacated and remanded by published opinion. Judge TRAXLER wrote the majority opinion, in which Judge CURRIE joined. Judge WIDENER wrote a concurring and dissenting opinion.

OPINION

TRAXLER, Circuit Judge:

A jury convicted Dr. William E. Hurwitz of multiple counts of drug trafficking for prescribing narcotic pain medicine in violation of 21 U.S.C.A. §§ 841(a)(1) and 846 (West 1999). Hurwitz appeals, arguing, inter alia, that the district court improperly admitted evidence recovered in a search of his office and incorrectly instructed the jury on the law. Although we affirm the district court's decision to admit the evidence seized in the search, we conclude that the district court did not properly instruct the jury on the controlling law. Accordingly, we vacate Hurwitz's convictions and remand for a new trial.

I.

Hurwitz is a medical doctor who operated a practice in McLean, Virginia, dedicated to the treatment of patients suffering from pain. Hurwitz's approach to pain management involved the use of opioids, including methadone, oxycodone (typically Oxycontin, a brand-name version of a time-release form of oxycodone), and hydromorphone (usually the brand-name Dilaudid). Many of Hurwitz's patients were on a protocol that used very high doses of opioids to control their pain.

Hurwitz came to the attention of federal authorities in 2002, after several of his patients were arrested for attempting to sell illicit and prescription drugs. The patients identified Hurwitz as the source of their prescription drugs, and they began

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cooperating with the investigators. The information these patients provided eventually led to Hurwitz's indictment on numerous drug-related charges--one count of conspiracy to engage in drug trafficking, see 21 U.S.C.A. § 846; one count of engaging in a continuing criminal enterprise, see 21 U.S.C.A. § 848 (West 1999); two counts of healthcare fraud, see 18 U.S.C.A. § 1347 (West 2000); and 58 counts of drug trafficking, including two counts each of drug-trafficking resulting in serious bodily injury and drug-trafficking resulting in death, see 21 U.S.C.A. § 841(a)(1).

The government's evidence at trial painted a picture of a doctor who operated well outside the boundaries of usual medical practice. The government contended that Hurwitz was little more than a common drug dealer who operated out of a medical office rather than on a street corner. The government's expert witnesses testified that a doctor who knowingly prescribed opioids to an addict or to a patient the doctor knew was selling the drugs on the street was acting outside the bounds of legitimate medical practice, and the government presented compelling evidence suggesting that Hurwitz did just that--continued to prescribe large quantities of opioids to patients that he knew were selling the drugs or abusing them (for example, by injecting drugs that were directed to be taken orally).

Several of the patients who were cooperating with the authorities tape-recorded their appointments with Hurwitz. In one recording, Hurwitz indicated that it was "not inconceivable" to him that some patients were "selling part of their medicines so they could buy the rest." S.A. 101. In another recording Hurwitz stated, "so I have kind of a huge conspiracy of silence because I, in fact, even, even knowing what I'll call the suspicious nature of you guys, assumed that you weren't stupid enough to--to not protect my practice and preserve your own ... access to medications." S.A. 104. Hurwitz told another patient to get an x-ray or an MRI "for the files to cover our butts." J.A. 3089.

The government presented evidence of what seemed to be extraordinarily high doses of opioids prescribed by Hurwitz. An expert witness for the government testified that high-dose opioid therapy typically involved doses of the equivalent of approximately 195 milligrams of morphine a day, although there had been a study involving doses of 350 milligrams a day and another involving doses of up to two grams a day. J.A. 2456.

The doses prescribed by Hurwitz, however, vastly exceeded those quantities. Hurwitz often wrote prescriptions calling for a patient to take thirty 80-milligram Oxycontins per day. For Hurwitz's patients in the high-dose program, a prescribed opioid dosage of 100 pills per day was not uncommon. Hurwitz testified that between 1998 and 2002, the median daily dosage for his patients was approximately 2000 milligrams (2 grams) of morphine or its equivalent. (Because Oxycontin is stronger than morphine, Hurwitz testified that 2000 milligrams of morphine would translate to about 1000 milligrams of Oxycontin.) Between July 1999 and October 2002, Hurwitz prescribed to one patient a total of more than 500,000 pills, which amounted to more than 400 pills per day. Towards the end of the time that Hurwitz treated the patient, the prescribed dosage included 1,600 5-milligram Roxicodones (a non-timed release version of Oxycontin) per day. 1 Still another patient was prescribed

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10,000 Roxicodones as a one-month supply. Patients with limited visible sources of income spent tens of thousands of dollars a month on narcotics prescribed by Hurwitz.

The government also presented evidence showing that Hurwitz had previously been disciplined for improper prescribing practices. In 1992, the District of Columbia Board of Medicine had reprimanded Hurwitz and placed him on probation for prescribing drugs when not authorized to do so and for failing to conform to the prevailing standards of acceptable medical practice. In 1996, the Virginia Board of Medicine revoked his license upon finding that he had prescribed excessive amounts of controlled substances. The Virginia Board also required Hurwitz to attend classes on proper prescription practices and how to detect when patients were trying to use him as a source for prescription drugs rather than a doctor to treat pain.

Not surprisingly, the defense painted an entirely different picture. Hurwitz and his witnesses contended that the high-dose protocol was a proper medical procedure for treating patients with intractable pain. They testified that the body quickly develops resistance to the dangerous side-effects of opioids (such as respiratory depression), which then permits an escalation of the dosage until pain relief is obtained. One expert testified that once a patient becomes tolerant of the side-effects, there is effectively "no ceiling" on the quantity of opioids that can be prescribed if necessary to control pain. J.A. 3975. That expert also testified that many patients over time will require an increase in their opioid dosage in order to maintain control of their pain. Hurwitz's experts also testified that there is no medical reason to stop treating a patient for pain simply because that patient may be abusing illicit drugs and that, in some cases, stopping such treatment may even be more problematic.

Hurwitz testified about his practices and the patients he treated. He discussed how patients were generally asked to fill out questionnaires and submit medical records before receiving treatment and how he often included patients' family members during visits as a part of his approach to treating pain. Hurwitz participated in an e-mail discussion group with other...

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