United States v. Evers

• Decision Date: 10 May 2021
• Docket Number: CRIMINAL NO. 3:19-CR-250
• Parties: UNITED STATES OF AMERICA, v. MARTIN EVERS, Defendant.
• Court: U.S. District Court — Middle District of Pennsylvania

UNITED STATES OF AMERICA, v. MARTIN EVERS, Defendant.

CRIMINAL NO. 3:19-CR-250

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

May 10, 2021

(JUDGE MARIANI)

MEMORANDUM OPINION

I. INTRODUCTION

Here the Court considers Defendant's Motion to Dismiss All Charges in the Indictment (Doc. 53). The August 28, 2019, two-count Indictment charges Defendant with Unlawful Distribution and Dispensing of a Controlled Substance in violation of 21 U.S.C. § 841(a)(1) and Unlawful Distribution and Dispensing of a Controlled Substance Resulting in Death and Serious Bodily Injury in violation of 21 U.S.C. § 841(a)(1). (Doc. 1.) These charges against Defendant, a medical doctor, are based on September 2, 2014, and September 9, 2014, prescriptions for controlled substances written for his patient "K.D.," a woman with an opioid addiction whom he had begun to treat in March 2013. (Id.) Defendant now asserts that 21 U.S.C. § 841(a)(1) and accompanying regulations "are unconstitutionally vague and the Indictment against him fails to provide him with a factual orientation sufficient to permit the defendant to prepare his defense." (Doc. 68 at 2.) For the reasons discussed below, the Court will deny Defendant's motion.

II. ANALYSIS

Defendant's argument is twofold. First, he asserts that 21 U.S.C. § 841(a)(1) and accompanying regulations are void for vagueness as applied to Defendant. (Doc. 68 at 4.) Second, he contends that the Indictment is legally insufficient. (Id. at 6.) The Court will address each in turn.

A. Void for Vagueness

Defendant maintains that 21 U.S.C. § 841(a)(1) and 21 C.F. R. § 1306.4(a) do not survive his vagueness challenge because they do not apprise a physician such as himself "that he may be prosecuted for prescribing controlled substances to treat a patient in pain if the patient has a history of a substance abuse disorder." (Doc. 68 at 6.) The Government responds that the statutory and regulatory provisions at issue are not vague or ambiguous and other circuits have specifically found that they are not unconstitutionally vague as applied to medical practitioners. (Doc. 85 at 17-21.)

21 U.S.C. § 841(a)(1) provides as follows:

(a) Unlawful acts

Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally—

(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance[.]

21 U.S.C. § 841(a)(1).

21 C.F.R. § 1306.04 addresses the "[p]urpose of issue of prescription" and provides that

[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. The responsibility for the proper prescribing and dispensing of controlled substances is upon the prescribing practitioner, but a corresponding responsibility rests with the pharmacist who fills the prescription. An order purporting to be a prescription issued not in the usual course of professional treatment or in legitimate and authorized research is not a prescription within the meaning and intent of section 309 of the Act (21 U.S.C. 829) and the person knowingly filling such a purported prescription, as well as the person issuing it, shall be subject to the penalties provided for violations of the provisions of law relating to controlled substances.

21 C.F.R. § 1306.04(a).

"The void for vagueness doctrine is concerned with a defendant's right to fair notice and adequate warning that his conduct runs afoul of the law." Gentile v. State Bar of Nevada, 501 U.S. 1030, 1077-78 (1991). In Johnson v. United States, the Supreme Court held that a statute is unconstitutionally vague only if "it fails to give ordinary people fair notice of the conduct it punishes," or is "so standardless that it invites arbitrary enforcement." 576 U.S. 591, 595 (2015).

A statute may be challenged as unconstitutionally vague on its face or as-applied, and the Third Circuit has explained that

[t]he difference between the two is significant. "A party asserting a facial challenge 'must establish that no set of circumstances exists under which the Act would be valid.'" United States v. Mitchell, 652 F.3d 387, 405 (3d Cir.2011) (quoting United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987)). This is a particularly demanding standard and is the "most difficult challenge to mount successfully." Salerno, 481 U.S. at 745, 107 S.Ct. 2095. By contrast, "[a]n as-applied attack ... does not contend that a law is unconstitutional as written but that its application to a particular person under particular circumstances deprived that person of a constitutional right." UnitedStates v. Marcavage, 609 F.3d 264, 273 (3d Cir.2010).

Heffner v. Murphy, 745 F.3d 56, 65 (3d Cir. 2014).

As noted above, Defendant states that he challenges the provisions at issue "as applied." (Doc. 68 at 4.) Thus, the Court will focus on legal authority relevant to whether a provision is void for vagueness as-applied.

It is well-established that "[a] statute is void on vagueness grounds if it (1) 'fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits'; or (2) authorizes or even encourages arbitrary and discriminatory enforcement.'" United States v. Stevens, 533 F.3d 218, 249 (3d Cir.2008) (quoting Hill v. Colorado, 530 U.S. 703, 732 (2000)); see also United States v. Fullmer, 584 F.3d 132, 152 (3d Cir. 2009) (citing Stevens, 533 F.3d at 249). The Circuit Court in Fullmer explained the parameters of a void for vagueness challenge:

The inquiry is undertaken on a case-by-case basis, and a reviewing court must determine whether the statute is vague as-applied to the affected party. San Filippo v. Bongiovanni, 961 F.2d 1125, 1136 (3d Cir.1992). "In the criminal context, the Supreme Court has held that since vagueness attacks are based on lack of notice, 'they may be overcome in any specific case where reasonable persons would know their conduct puts [them] at risk' of punishment under the statute." Id. (quoting Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988) (alteration in original)). Therefore, for a criminal statute to be constitutional, "criminal statutes need only give 'fair warning' that certain conduct is prohibited." Id. (quoting Colten v. Kentucky, 407 U.S. 104, 110, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972)). "Simply because a criminal statute could have been written more precisely does not mean the statute as written is unconstitutionally vague." Id. (citing United States v. Powell, 423 U.S. 87, 94, 96 S.Ct. 316, 46 L.Ed.2d 228 (1975)). In addition, the Supreme Court has held that scienter requirements in criminal statutes "alleviate vagueness concerns," because a mens rea element makes it less likely that a defendant will beconvicted for an action that he or she committed by mistake. See, e.g., Gonzales v. Carhart, 550 U.S. 124, 149, 127 S.Ct. 1610, 167 L.Ed.2d 480 (2007).

Fullmer, 584 F.3d at 152. In keeping with Fullmer, the district court in United States v. Taylor, 232 F. Supp. 3d 741, 754 (W.D. Pa. 2017), noted that a criminal defendant bears a heavy burden to demonstrate that a criminal statute is void for vagueness.

The parties cite numerous cases in which a void for vagueness challenge of the Controlled Substances Act has been unsuccessful. (Doc. 68 at 4 n.1 (citing United States v. Collier, 478 F.2d 268 (5^th Cir. 1973) (finding 21 U.S.C. § 841(a)(1) not vague as applied to physicians); United States v. Robinson, 253 F. Supp. 3d 1 (D.D.C. 2017) (same); United States v. Darji, 609 F. App'x 140, 143 (4^th Cir. 2012); Doc. 85 at 17-18 (citing United States v. DeBoer, 966 F.2d 1066, 1068-69) (6^th Cir. 1992); United States v. Collier, 478 F.2d 268 (5^th Cir. 1973); United States v. McKay, 715 F.3d 807, 824 (10th Cir. 2013) (finding the Controlled Substances Act ("CSA") is not unconstitutionally vague as applied to a pain management doctor); United States v. DeBoer, 966 F.2d 1066, 1068-69 (6th Cir. 1992) (denying a void-for-vagueness challenge to the CSA because a pharmacist's responsibilities giving rise to unlawful conduct was "clearly defined"); United States v. Roya, 574 F.2d 386, 390-91 (7th Cir. 1978) (rejecting an argument suggesting the CSA was unconstitutionally vague as applied to a defendant-physician); United States v. Gerlay, No. 3:09-CR-85, 2009 WL 4897748, at *7 (D. Alaska Dec. 11, 2009) (finding the CSA not void-for-vagueness either facially or as applied to a pain doctor); United States v. Birbragher, 576 F. Supp. 2d1000, 1012-13 (N.D. Iowa 2008) (finding the CSA provides adequate notice of the proscribed conduct for physicians), affirmed, 603 F.3d 530 (8th Cir. 2010).

Similarly, courts have found that 21 C.F.R. § 1306.04 is not unconstitutionally vague. (See Doc. 85 at 18-21 (citing United States v. Rosenberg, 515 F.2d 190, 198 (9^th Cir. 1975) (holding that the phrase "in the course of professional practice" within provision of CSA defining a practitioner authorized to prescribe controlled substances was not so vague as to deny due process); United States v. Collier, 478 F.2d 268, 271 (5^th Cir. 1973) (holding that courts have interpreted this language easily since its inception, and this is convincing that it is not vague); United States v. Boettjer, 569 F.2d 1078, 1080 (9^th Cir. 1978) (prescriptions not issued for legitimate medical purpose by practitioner acting in usual course of his professional practice, if knowingly or intentionally issued, may form predicate for practitioner's criminal liability); United States v. Robinson, 253 F. Supp. 3d 1, 3 (D.D.C. 2017) (statute prohibiting health care professionals from distributing or dispensing a controlled substance other than "for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice" was not unconstitutionally vague); United States v. Prejean, 429 F....