United States v. Couch, CRIMINAL NO. 15-00088-CG-B

• Decision Date: 23 December 2016
• Docket Number: CRIMINAL NO. 15-00088-CG-B
• Parties: UNITED STATES OF AMERICA v. JOHN PATRICK COUCH, M.D., and XIULU RUAN, M.D.
• Court: U.S. District Court — Southern District of Alabama

UNITED STATES OF AMERICA v. JOHN PATRICK COUCH, M.D., and XIULU RUAN, M.D.

CRIMINAL NO. 15-00088-CG-B

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

December 23, 2016

ORDER AND MEMORANDUM OPINION

This matter is before the Court on dual motions to dismiss the second superseding indictment, in part,¹ filed by Defendant Xiulu Ruan, M.D. ("Dr. Ruan") (Doc. 374) and Defendant John Patrick Couch, M.D. ("Dr. Couch) (Doc. 378).² The Government filed an objection thereto. (Doc. 392). Additionally, the Court has before it a motion to dismiss certain counts within the Indictment or, alternatively, motion for bill of particulars filed by Dr. Couch (Doc. 379), the Government's objection thereto (Doc. 387), and Dr. Couch's reply (Doc. 407).³ For the reasons set forth below, Defendants' motions are DENIED.

I. Standard of Review

a. Motion to Dismiss

A court may dismiss a criminal prosecution on grounds of "a defect in the indictment." FED. R. CRIM. P. 12(b)(3)(B). However, an indictment is sufficient aslong as it sets forth "a plain, concise, and definite written statement of the essential facts constituting the offense charged." FED. R. CRIM. P. 7(c)(1). The Eleventh Circuit instructs that "[a]n indictment is sufficient if it (1) presents the essential elements of the charged offense; (2) notifies the accused of the charges to be defended against, and (3) enables the accused to rely upon a judgment under the indictment as a bar against double jeopardy for any subsequent prosecution for the same offense." United States v. Steele, 147 F.3d 1316, 1320 (11th Cir. 1998) (en banc) (citation omitted). The general rule is that the sufficiency of the indictment should be determined from the face of the indictment, and an indictment is sufficient if it charges the language of the statute, as long as it sets forth the elements of the crime. See United States v. Critzer, 951 F.2d 306, 307 (11th Cir. 1992). In "determining whether an indictment is sufficient, we read it as a whole and give it a 'common sense construction.' In other words, the indictment's 'validity is to be determined by practical, not technical considerations." United States v. Jordan, 582 F.3d 1239, 1245 (11th Cir. 2009). For purposes of this analysis, the allegations of the indictment must be taken as true. United States v. Nat'l Dairy Prods. Corp., 372 U.S. 29, 33 n.2 (1952).

b. Bill of Particulars

Pursuant to Federal Rule of Criminal Procedure 7(f), "[t]he court may direct the government to file a bill of particulars." FED. R. CRIM. P. 7(f). The purpose of a bill of particulars is "to inform the defendant of the charge against him with sufficient precision to allow him to prepare his defense, to minimize surprise attrial, and to enable him to plead double jeopardy in the event of a later prosecution for the same offense." United States v. Anderson, 799 F.2d 1438, 1441 (11th Cir. 1986) (quoting United States v. Cole, 755 F.2d 748, 760 (11th Cir. 1985)). A bill of particulars supplements an indictment by providing information necessary for a defendant to prepare for trial. Id. at 1441-42. "Generalized discovery is not the proper functions of a bill of particulars." United States v. Warren, 772 F.2d 827, 837 (11th Cir. 1985). A bill of particulars is not a tool by which a defendant can "compel the government to detailed exposition of its evidence or to explain the legal theories upon which it intends to rely at trial." United States v. Burgin, 621 F.2d 1352, 1359 (5th Cir. 1980). "Nor is the defendant entitled to a bill of particulars with respect to information which is already available through other sources such as the indictment or discovery and inspection." United States v. Rosenthal, 793 F.2d 1214, 1227 (11th Cir. 1986).

II. Motion to Dismiss the Indictment, in Part

The Indictment charges Defendants with violation of Title 21, United States Code, § 841(a)(1) of the Controlled Substances Act ("CSA"). Section 841(a)(1) of the CSA provides, "Except 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 ...." The Indictment also charges Defendants with violation of Title 21, United States Code, § 846 of the CSA. Section 846 of the CSA makes criminal a conspiracy to commit an offense under § 841(a)(1). Although certain licensed medicalprofessionals are exempted from the CSA and may prescribe controlled substances, the prescription "must be issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice" to be exempted. 21 C.F.R. § 1306.04(a).

Defendants move to dismiss the Indictment, in part, due to the alleged vagueness of § 841(a)(1) and § 846. They contend that the "statutory framework, controlling regulatory authority, and case law" fail to provide a standard or put a physician on notice of what conduct is prohibited thereunder in violation of the Fifth and Fourteenth Amendment of the United States Constitution. (Doc. 374; Doc. 378).⁴ The Government responds that the body of caselaw within the Eleventh Circuit and other circuits provided Defendants with a "'blueprint' of prescribing practices" that afforded sufficient notice of the CSA's application. (Doc. 392, p. 2).

"As generally stated, the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and 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. United States, 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). Furthermore, because Defendants' void-for-vagueness challenge does not raise a First Amendment issue, it must be evaluated only as applied, in light of the facts of the case at hand. United States v. Hasner, 340 F.3d 1261, 1269 (11th Cir. 2003).

Defendants do not contest the CSA's applicability to physicians. This is in good measure. See United States v. Moore, 423 U.S. 122, 124 (1975) (concluding that a physician could be prosecuted under the CSA).⁵ Instead, Defendants take issue with the phrases "legitimate medical purpose" and "acting in the usual course of [their] professional practice." Defendants contend that the CSA or any other guiding authority does not sufficiently shed light on the "nature of the inquiry one is supposed to conduct and the kinds of factors one is supposed to consider" and only creates more questions than offers answers. (Doc. 19, p. 24). Therefore, a physician has no way of knowing if he or she may run afoul the CSA when the method of proof one may face is based on the "say-so of [the Government's] expert." Id.

Defendants' argument is unavailing. The Fifth Circuit addressed andrejected some time ago the argument that the CSA is void-for-vagueness as it applies to physicians. See United States v. Collier, 478 F.2d 268 (5th Cir. 1973).⁶ Reaffirming Collier's reasoning five years later, Judge Vance wrote, in relevant part:

"It is apparent that a licensed practitioner is not immune from the act solely due to his status, White v. United States, 399 F.2d 813 (8th Cir. 1968), but rather, because he is expected to prescribe or dispense drugs within the bounds of his professional practice of medicine. A physician is restricted to dispensing or prescribing drugs in the bona fide treatment of a patient's disease, including a dispensing of a moderate amount of drugs to a known addict in a good-faith attempt to treat the addiction or to relieve conditions or suffering incident to addiction. (Citations omitted.) However, under the guise of treatment a physician cannot sell drugs to a dealer nor distribute drugs intended to cater to cravings of an addict. (Citations omitted.) Congress did not intend for doctors to become drug "pushers." (Citations omitted.) In making a medical judgment concerning the right treatment for an individual patient, physicians require a certain latitude of available options. Doe v. Bolton, 410 U.S. 179, 191 (1973). Hence, "[w]hat constitutes bona fide medical practice must be determined upon consideration of evidence and attending circumstances." Linder v. United States, [268 U.S. 5, 18 (1925)]."

United States v. Rosen, 582 F.2d 1032, 1035 (5th Cir. 1978) (quoting Collier, 478 F.2d at 271-72) (omissions in original) (alteration added).

Although Rosen did not deal with a vagueness contention, it did address a physician's criminal liability under the CSA based on prescriptions not issued for medical purposes and outside of the usual course of professional practice. Id. at 1037-38. In doing so, the court laid down a framework for physicians to consider in their practice. "Recurring concomitance of condemned behavior" subjecting aphysician to prosecution under the CSA includes, but is not limited to:

[a]n inordinately large quantity of controlled substances was proscribed[;] (2) [l]arge numbers of prescriptions were issued[;] (3) [n]o physical examination was given[;] (4) [t]he physician warned the patient to fill prescriptions at different drug stores[;] (5) [t]he physician issued prescriptions to a patient known to be delivering the drugs to others[;] (6) [t]he physician prescribed controlled drugs at intervals inconsistent with legitimate medical treatment[;] (7)

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