United States v. Brickhouse
| Decision Date | 30 March 2016 |
| Docket Number | No. 3:14-CR-124,3:14-CR-124 |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. DAVID ERIC BRICKHOUSE, JAMES BRIAN JOYNER, and DEBORAH GAYLE THOMAS, Defendants. |
| Court | U.S. District Court — Eastern District of Tennessee |
(REEVES / SHIRLEY)
All pretrial motions in this case have been referred to the undersigned pursuant to 28 U.S.C. § 636(b) for disposition or report and recommendation regarding disposition by the District Court as may be appropriate. This case came before the undersigned on November 16, 2015, for a motion hearing on all pending pretrial motions, including the Defendants' two motions to dismiss the Indictment:
Assistant United States Attorney Frank M. Dale, Jr., appeared on behalf of the Government. Attorneys Keith D. Stewart and Matthew D. Barocas represented Defendant David Eric Brickhouse. Attorney John E. Eldridge represented James Brian Joyner. Attorneys Cullen Michael Wojcik and Robert R. Kurtz represented Defendant Deborah Gayle Thomas. Defendants Brickhouse and Thomas were present for the hearing.
Based upon the Court's review of the parties' arguments and the relevant case law, the undersigned recommends that the Defendants' joint motions to dismiss the Indictment should be denied.
The Defendants, medical doctors and physician's assistants, are charged [Doc. 3] with conspiracy to violate 21 U.S.C. § 841(a)(1) by intentionally or knowingly distributing Schedule II and IV controlled substances "by writing prescriptions for such controlled substances, which prescriptions were not issued for a legitimate medical purpose by an individual practitioner acting in the usual course of professional practice" (Count One). Count Two alleges that the Defendants conspired to commit money laundering. Section 841(a)(1) prohibits the unauthorized manufacture, distribution, dispensing, or possession with intent to manufacture, distribute, or dispense a controlled substance. As medical practitioners, the Defendants were authorized to prescribe controlled substances. However, the Government contends that the Defendants ran afoul of a regulation promulgated under the authority of 21 U.S.C. § 841. It contends that 21 C.F.R. § 1306.04(a) requires that a prescription for a controlled substance "must be issued for a legitimate medical purpose by an individual practitioner acting in the usual course of professional practice." The Indictment asserts that the Defendants violated §841(a)(1) by writing prescriptions for controlled substances without a legitimate medical purpose and outside of the usual course of professional practice.
The Defendants ask the Court to dismiss Count One of the Indictment in this case because they argue that § 841(a)(1), as applied to physicians and physician's assistants, violates the First, Fifth, and Fourteenth Amendments to the United States Constitution. They contend that the statute violates their rights under the First Amendment because it "chills" their ability to make independent medical decisions in the furtherance of the best interest of their patients. They also argue that the statute violates the Due Process clause of the Fifth and Fourteenth Amendments because it is unconstitutionally vague as applied to medical practitioners. Additionally, the Defendants contend that the statute violates the Equal Protection Clause of the Fifth Amendment because the mens rea element of the statute is eliminated when the statute is applied to medical professionals. Moreover, they argue that only the State of Tennessee can determine whether the issuance of a particular prescription is for a legitimate medical purpose or made in the usual course of professional practice.
The Government responds [Docs. 73 & 118] that both Supreme Court and Sixth Circuit case law hold that § 841(a)(1), as applied to medical practitioners, is not void for vagueness.
Our Constitution requires that "[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment by a grand jury." U.S. Const. amend V. "The indictment . . . must be a plain, concise, and definite written statement of the essential facts constituting the offense charged[.]" Fed. R. Crim. P. 7(c)(1). As a generalrule, an indictment passes constitutional muster if it "contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense." Hamling v. United States, 418 U.S. 87, 117 (1974); United States v. Landham, 251 F.3d 1072, 1079 (6th Cir. 2001) (quoting Hamling).
Count One of the instant Indictment charges the Defendants as follows:
[Doc. 3]
Title 21, United States Code § 841(a)(1) provides "[e]xcept as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally . . . to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance[.]" Although certain licensed medical professionals are authorized to prescribecontrolled substances, a " prescription for a controlled substance to be effective must be issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice." 21 C.F.R. § 1306.04(a).2
"There are two quite different ways in which a statute or ordinance may be considered invalid "on its face"—either because it is unconstitutional in every conceivable application, or because it seeks to prohibit such a broad range of protected conduct that it is unconstitutionally "overbroad." Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 796 (1984). The Defendants, who are medical practitioners with the authority to prescribe controlled substances, argue that the application of § 841(a)(1) to them violates the First, Fifth, and Fourteenth Amendments of the United States Constitution. Thus, the Defendants, for the most part, contend that § 841(a)(1) is unconstitutionally vague "as applied" to them. Because the Defendant's arguments with regard to their First and Fourteenth Amendment claims stem from their Fifth Amendment vagueness challenge, the Court will first address whether § 841(a)(1) is facially vague in violation of the Fifth Amendment.
The Defendants contend that § 841(a)(1) is unconstitutionally void for vagueness as applied to medical practitioners with the authority to prescribe controlled substances. They argue that applying § 841(a)(1) to medical practitioners violates their Fifth Amendment right tothe due process of law because the statute fails to provide a definite standard, which would give notice that a proposed course of conduct could result in criminal liability. They also contend that the application of § 841(a)(1) to medical practitioners violates the equal protection of the law by eliminating the statute's requirement of an intentional or a knowing mental state.
(1) Due Process
The Defendants contend that § 841(a)(1) is vague as applied to medical practitioners because it fails to provide a definite standard by which practitioners can measure their conduct. In order to avoid constitutional vagueness, a statute must define the criminal conduct with enough precision that it permits an ordinary person to understand what is prohibited and that it does not encourage arbitrary or discriminatory enforcement. Kolender v. Lawson, 461 U.S. 352, 357 (1983). To survive a vagueness challenge, a statute must give "relatively clear guidelines as to prohibited conduct." Posters 'N' Things, Ltd. v. U.S., 511 U.S. 513, 525 (1994). In this regard, the statute must provide "objective criteria" that will "minimize the possibility of arbitrary enforcement and assist in defining the sphere of prohibited conduct under the statute." Id. at 526. "The underlying principle [in a vagueness analysis] is that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed." United States v. Harriss, 347 U.S. 612, 617 (1954).
The Defendants argue that courts have not defined a standard for prosecution of medical professionals under § 841(a)(1) with sufficient definiteness to satisfy due process. They maintain...
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