United States v. Ruan

• Decision Date: 05 January 2023
• Docket Number: 17-12653
• Citation: 56 F.4th 1291
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Xiulu RUAN, John Patrick Couch, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

56 F.4th 1291

UNITED STATES of America, Plaintiff-Appellee,

v.Xiulu RUAN, John Patrick Couch, Defendants-Appellants.

No. 17-12653

United States Court of Appeals, Eleventh Circuit.

Filed: January 5, 2023

Sonja Ralston, U.S. Department of Justice, Criminal Division, Appellate Section, Washington, DC, Christopher John Bodnar, Scott Alan Gray, Deborah A. Griffin, U.S. Attorney's Office, Mobile, AL, for Plaintiff-Appellee.

Dennis J. Knizley, Law Office of Dennis J. Knizley, Gordon Gray Armstrong, III, Gordon G. Armstrong, III, PC, Jason Darley, Darley Law Firm, LLC, Mobile, AL, Nicholas A. Lotito, Davis Zipperman Kirschenbaum & Lotito, LLP, L. Burton Finlayson, Law Office of L. Burton Finlayson, LLC, Page Anthony Pate, The Church Law Firm, LLC, Atlanta, GA, Lawrence Robbins, Friedman Kaplan Seiler & Adelman, LLP, New York, NY, Steve Martinie, Steve Martinie Law Office, Whitefish Bay, WI, for Defendant-Appellant Xiulu Ruan.

Domingo Soto, Madden & Soto, Arthur T. Powell, III, Arthur T. Powell III, PC, Mobile, AL, for Defendant-Appellant John Patrick Couch.

John Patrick Couch, FCI Forrest City Low - Inmate Legal Mail, Forrest City, AR, Pro Se.

Before Wilson, Newsom, Circuit Judges, and Coogler,^* Chief District Judge.

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

PER CURIAM:

This case returns to our court on remand from the Supreme Court. Ruan v. United States , ––– U.S. ––––, 142 S. Ct. 2370, 213 L.Ed.2d 706 (2022) ( Ruan II ). We ordered supplemental briefing to address whether the mens rea jury instruction used in this case was error and whether any such error was harmless. After careful consideration, we conclude that the jury instruction used in this case is inconsistent with the Supreme Court's guidance and did not convey an adequate mens rea to the jury for the substantive drug convictions under 21 U.S.C. § 841. We further find that this error was not harmless beyond a reasonable doubt for Dr. Xiulu Ruan's and Dr. John Couch's (collectively, the defendants) substantive drug charges. However, we conclude that the instructional error was harmless as to the other convictions in this case. Accordingly, we VACATE in part and AFFIRM in part the defendants’ convictions.¹

I.

The factual and procedural history at trial were thoroughly recounted in our prior panel opinion, United States v. Ruan , 966 F.3d 1101, 1119–36 (11th Cir. 2020) ( Ruan I ). Among other things, the defendants challenged the jury instructions used for their substantive drug convictions under 21 U.S.C. § 841(a), which prohibits the "knowing[ ] or intentional[ ]" dispensing of controlled substances "[e]xcept as authorized." The relevant drugs in this case are only "authorized" to be dispensed pursuant to a prescription, and an effective prescription must be made 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). The defendants requested that the jury be instructed that their good faith be a defense to an allegation that they acted outside the "usual course of professional practice."

In Ruan I , we affirmed on all but Count 16² and held that we were bound by prior Eleventh Circuit precedent to reject the defendants’ request for a good-faith instruction. See, e.g. , United States v. Joseph , 709 F.3d 1082 (11th Cir. 2013) ; United States v. Tobin , 676 F.3d 1264 (11th Cir. 2012) ; United States v. Merrill , 513 F.3d 1293 (11th Cir. 2008) ; United States v. Williams , 445 F.3d 1302 (11th Cir. 2006). We reaffirmed that the "usual course of professional practice" prong was evaluated using an objective standard, not a subjective one. Ruan I , 966 F.3d at 1167. Accordingly, good faith was irrelevant to the question of whether a doctor acted in the usual course of professional practice; though it was relevant to whether the doctor prescribed a controlled substance for a "legitimate medical purpose." See id . The defendants then petitioned for, and the Supreme Court granted, certiorari to consider whether good faith is a defense on the usual course of professional practice prong. See Ruan v. United States , ––– U.S. ––––, 142 S. Ct. 457, 211 L.Ed.2d 278 (2021).

The Supreme Court reversed. It reasoned that § 841(a) ’s scienter provision (requiring the defendant to act "knowingly or intentionally") applied not only to the statute's actus reus—here dispensing—but also to the "except as authorized" exception. Ruan II , 142 S. Ct. at 2378. Thus, to obtain a conviction under this section, the government must prove beyond a reasonable doubt that a defendant (1) knowingly or intentionally dispensed a controlled substance; and (2) knowingly or intentionally did so in an unauthorized manner. Id. at 2382. The Court held that an objective standard would inappropriately import a civil negligence standard into a criminal prosecution. See id . at 2381. Instead, what matters is the defendant's subjective mens rea. Id. at 2382.

The Supreme Court expressly declined to apply its new standard to the facts in this case and remanded to this court to consider the issue in the first instance. Id .

II.

We review de novo whether a challenged jury instruction "misstated the law or misled the jury to the prejudice of the objecting party." United States v. Cochran , 683 F.3d 1314, 1319 (11th Cir. 2012). Jury instructions need not be perfect, and we review the instructions in light of the "entire charge" and do not isolate individual statements in order to contrive error. Id.

Where the error is the omission of an element of the crime we will reverse unless it can be shown the error was harmless beyond a reasonable doubt.

Neder v. United States , 527 U.S. 1, 15–16, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999).

III.

The district court in this case followed then-binding Eleventh Circuit precedent and denied the defendants’ request for a good-faith instruction reflecting their subjective intent. Instead, the district court gave an alternative instruction on good faith:

A controlled substance is prescribed by a physician in the usual course of a professional practice and, therefore, lawfully, if the substance is prescribed by him in good faith as part of his medical treatment of a patient in accordance with the standard of medical practice generally recognized and accepted in the United States.

The government argues in its supplemental briefing that this instruction, read together with the whole charge, adequately instructed the jury that it had to find the defendants acted with knowledge or intent in order to convict them under § 841(a). We disagree for three reasons.

First, the passing reference to "good faith" excerpted above is inadequate. The Supreme Court recognized that § 841 "uses the familiar mens rea words ‘knowingly or intentionally.’ It nowhere uses words such as ‘good faith’ ...." Ruan II , 142 S. Ct. at 2381. The Supreme Court then explicitly rejected the government's proffered compromise instruction that objective good faith or "honest effort" should govern the usual course of professional practice prong. Id. Instead, it is the defendant's subjective intent that matters. The government argues that our cases have conceptually linked "good faith" and "knowledge" in the past, and that this instruction gave the "functional equivalent of a knowledge instruction." But, at best, even if the concepts are linked, good faith is an imprecise proxy for knowledge.

Without further qualification, the phrase "good faith" encompasses both subjective and objective good faith. In the context of § 841 though, as the Supreme Court has explicitly held, only the subjective version is appropriate. The instruction given by the district court did not contain any qualification to make this clear to the jury. And, of course, the instruction did not contain this qualification. The district court's instruction is substantially identical to one this court first approved in Williams . See 445 F.3d at 1309. Over the next fifteen years we reaffirmed this language repeatedly because it comported with our understanding that the "usual course of his professional practice must be evaluated based on an objective standard." See, e.g. , Joseph , 709 F.3d at 1097. At the same time, we consistently rejected attempts by defendants to change this language and introduce other formulations that had a subjective character. Id. ; Tobin , 676 F.3d at 1283 ; Merrill , 513 F.3d at 1306. Based on all of this, we conclude this phrase on its own inadequately conveyed the required mens rea.

Second, even viewing this phrase in the context of the "entire charge," the remaining jury instructions did not help convey that a subjective analysis was required for the "except as authorized" exception. The district court enumerated the elements of a § 841(a) charge: (1) the defendant dispensed the controlled substance; (2) "the [d]efendant did so knowingly and intentionally;" and (3) the defendant did not have authorization. Grammatically, the "did so" phrase links the mens rea element to the preceding element describing the actus reus of dispensing the controlled substance, but not to the "except as authorized" exception.

Third and finally, the summary of the charge also did not help to convey the required mens rea. The district court essentially repeated the language from 21 C.F.R. § 1306.04(a) without linking it to any requirement that the jury find a lack of good faith or scienter for this exception.

Therefore, we conclude that the district court's instruction for the substantive drug charges inadequately conveyed the required mens rea to authorize conviction under § 841(a).

IV.

We turn now to whether the error in the jury instructions was harmless beyond a reasonable doubt. Neder , 527 U.S. at 15–16, 119 S.Ct. 1827. The Supreme Court has held that while the omission of an element from the jury instruction is unconstitutional, "most constitutional errors can be harmless." Id . at 8, 119 S.Ct. 1827 (quoting Arizona v. Fulminante , 499 U.S. 279, 306, 111 S.Ct....