United States v. Rydze
| Decision Date | 12 April 2017 |
| Docket Number | Criminal No. 12-262 |
| Parties | UNITED STATES OF AMERICA v. RICHARD A. RYDZE |
| Court | U.S. District Court — Western District of Pennsylvania |
At the close of the government's case, defendant Richard A. Rydze ("defendant" or "Rydze") moved for judgment of acquittal pursuant to Federal Rule of Criminal procedure 29(a) with respect to counts 1 through 3, count 4, count 10, and counts 139, 141, 149, 150, and 169. Federal Rule of Criminal Procedure 29(a) provides:
(a) Before Submission to the Jury. After the government closes its evidence or after the close of all the evidence, the court on the defendant's motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction.
In considering a Rule 29 motion, the court must "'review the record in the light most favorable to the prosecution to determine whether any rational trier of fact could have found proof of guilt beyond a reasonable doubt.'" United States v. Boria, 592 F.3d 476, 480 (3d Cir. 2010) (quoting United States v. Brodie, 403 F.3d 123, 133 (3d Cir. 2005)). The court must "examine the totality of the evidence, both direct and circumstantial," and "must credit all available inferences in favor of the government." United States v. Gambone, 314 F.3d 163, 170 (3d Cir. 2003). The court "will only find the evidence insufficient when the prosecution's failure is clear." United States v. Mercado, 610 F.3d 841, 845 (3d Cir. 2010).
The court heard argument on defendant's Rule 29 motions on March 16, 2017. At the hearing the court denied defendant's motion with respect to counts 4 and 10. The court granted defendant's Rule 29 motion with respect to counts 139, 141, 149 and 152. Counsel were ordered to confer about count 169, after which the court would consider the motion, and the parties were given leave to file supplemental briefing with respect to counts 1, 2, and 3. The briefs are filed and the court will address defendant's Rule 29 motion with respect to the remaining counts.
Count 1 charges Rydze with conspiracy to distribute controlled substances - anabolic steroids, in violation of 21 U.S.C. § 846 & §§ 841(a)(1) & (b)(1). Counts 2 and 3 charge Rydze with distributing controlled substances - anabolic steroids, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.
To establish that Rydze is guilty of counts 1, 2, or 3, the government must establish for each count that the distribution of the controlled substances occurred "outside the scope of professional practice" and "not for a legitimate medical purpose." See United States v. Moore, 423 U.S. 122, 124, 139 (1975); United States v. Merrill, 513 F.3d 1293, 1306 (11th Cir. 2008); United States v. Maynard, 278 F. App'x 214, 218 (3d Cir. 2008); United States v. Feingold, 454 F.3d 1001, 1009-10 (9th Cir. 2006). The relevant provisions of the Code of Federal Regulations use the same language. A medical doctor may only prescribe controlled substances "for a legitimate medical purpose" when "acting in the usual course of his professional practice." 21 C.F.R. § 1306.04(a). A DEA-registered practitioner is authorized to dispense a controlledsubstance only "in the course of his/her professional practice." 21 C.F.R. § 1306.21(b). Finally, a "valid prescription" is defined as a prescription issued for a "legitimate medical purpose in the usual course of professional practice." 21 U.S.C. § 829 (e)(2)(A).
Rydze argues that whether his conduct was done outside the scope of professional practice and not for a legitimate medical purpose is to be determined by the Commonwealth of Pennsylvania's State Medical Board. He argues that because the government failed to call any witness to testify about the Pennsylvania State Medical Board's standards regarding prescribing anabolic steroids, the government is unable to meet its burden and therefore counts 1, 2, and 3 should be dismissed. In support of this position he relies on the Supreme Court's decision in Gonzales v. Oregon, 546 U.S. 243 (2006).
In Gonzalez v. Oregon, the Supreme Court analyzed an interpretive rule issued by the United States Attorney General stating that doctors who assist terminally ill patients in committing suicide pursuant to an Oregon law do so in violation of the Controlled Substances Act ("CSA"). Gonzales, 546 U.S. at 254. A large portion of the Gonzales opinion discussed the proper deference the Court should give to the Attorney General's interpretive rule. Id. at 255-69 ().
"Gonzales held only that the Attorney General lacked power under the CSA to define legitimate medical practices so as to directly oppose state law." United States v. Ahuja, Civ. Act. No. 3:14-CV-1558, 2016 WL 3962773, *4 (D. Conn. July 21, 2016) (). In United States v. Feingold, the court of appeals similarly described Gonzales as "holding that the Attorney General lacked authority to declare illegitimate a medical standard for care ... that was specifically authorized under state law." Feingold, 454 F.3d 1001, 1011 n. 2 (9th Cir.2006). "Specifically, Gonzales concluded that the CSA's prescription requirement did not authorize the Attorney General's interpretive rule, which intentionally countered Oregon's physician-assisted suicide regime by declaring suicide not a legitimate medical purpose." Ahuja, 2016 WL 3962773, *4 (citing Gonzales, 546 U.S. at 253-54). "Gonzales did nothing to alter the reality that "knowingly distributing prescriptions outside the course of professional practice is a sufficient condition to convict a defendant under the criminal statutes relating to controlled substances." United States v. Volkman, 797 F.3d 377, 386 (6th Cir.) cert. denied, 136 S. Ct. 348 (2015) ().
There is no Attorney General interpretive rule at issue in this case, or a Commonwealth of Pennsylvania medical treatment regime (legislative or otherwise) that encompasses Rydze's charged conduct like Oregon's physician-assisted suicide regime encompassed the conduct of practicing physicians in Oregon. United States v. Lovern, 590 F.3d 1095, 1100 (10th Cir. 2009) (). Rydze cites no legal support for the proposition that the government must produce evidence of the Pennsylvania State Medical Board's "position" or'standards" about the prescription of anabolic steroids or testosterone in order to carry its burden of establishing that Rydze's conduct was outside the scope of professional practice and not for a legitimate medical purpose. Def. Br. Supp. ¶ 7 & ¶ 14.
In contrast, the Supreme Court implicitly approved a jury instruction referring to a national standard of care. Moore, 423 U.S. at 138-39. In Feingold, the court of appeals held that a district court "must ensure that the benchmark for criminal liability is the higher showing that the practitioner intentionally has distributed controlled substances for no legitimate medical purpose and outside the usual course of professional practice." Feingold, 454 F.3d at 1010. In Feingold, the court noted that its "holding is supported by the Supreme Court's decision in Moore, which implicitly approved an instruction that required the jury to find 'beyond a reasonable doubt that a physician, who knowingly or intentionally, did dispense or distribute [methadone] by prescription, did so other than in good faith for detoxification in the usual course of a professional practice and in accordance with a standard of medical practice generally recognized and accepted in the United States.'" Id. (quoting Moore, 423 U.S. at 138-39).
Similarly, in United States v. Merrill, the court of appeals rejected the defendant's argument that it was error for the district court not to give the jury the defendant's proffered "good faith" instruction, which focused on the physician's subjective intent. Merrill, 513 F.3d at 1306-07. The court found that the "appropriate focus is not on the subjective intent of the doctor, but rather it rests upon whether the physician prescribes medicine 'in accordance with a standard of medical practice generally recognized and accepted in the United States.'" Merrill, 513 F.3d at 1306 (quoting Moore, 423 U.S. at 139) (emphasis added).
In United States v. Norris, the court of appeals found that the district court "correctly rejected" the defendant's proposed charge "that a standard medical practice may be based on an entirely subjective standard" not objectively as the district court instructed. Norris, 780 F.2d 1207, 1209 (5th Cir. 1986). In Norris, the court of appeals affirmed the district court's charge describing it as "carefully modelled . . . after the Moore charge and properly directed the jury to consider: 1) Whether Dr. Norris prescribed the drugs for what he subjectively considered a legitimate medical purpose and 2) from an objective standpoint whether the drugs were dispensed in the usual course of a professional practice." Norris, 780 F.2d 1207, 1209 (5th Cir. 1986) ().
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