Eleventh Circuit Court of Appeals - Published Opinions

Friday, July 10, 2020

Ruan: Rejecting Numerous Challenges to Physicians' Convictions for Distributing Opioids

In United States v. Ruan, No. 17-12653 (July 10, 2020) (Coogler (ND Ala.), Wilson, Newsom)), the Court, in a 137-page opinion, affirmed all but one the defendant doctors’ numerous health-care/opioid related convictions.

The Court found sufficient evidence to support convictions for unlawfully prescribing opioids, health care fraud conspiracy, conspiracy to receive kickbacks, mail/fraud wire fraud conspiracy, and RICO conspiracy.  The government’s main expert witness for some of the counts revealed after testifying that he was suffering from early-onset dementia, but the defense could not show plain error because the defense did not ask for that to be disclosed to the jury and the expert was cross examined.  The Court found insufficient evidence for one count of conspiracy to receive kickbacks because the government failed to prove the existence of a “federal health care program” being defrauded.

The Court rejected the defendants’ evidentiary challenges.  The Court found that the admission of information from a state prescription drug database was not hearsay (but rather an opposing party’s statement and business records), and was not testimonial for purposes of the Confrontation Clause.  The Court next found that the exclusion of certain categories of evidence did not violate the defendants’ constitutional right to present a complete defense, despite improper (yet harmless) prosecutorial remarks about one of them.  The Court also found no error in qualifying a government expert and, although the court violated the Confrontation Clause by preventing the defense from eliciting the scope of the expert’s work for the government in the past, that error was harmless.

The Court found no error in refusing to give the defendants’ proposed jury instructions relating to a physician’s conduct under the Controlled Substances Act.  It found that the defendants’ proposed “good-faith” and “drug pusher” instructions were incorrect statements of law.  And it found that the defendants’ proposed negligence-is-not-enough instruction was correct, but its absence did not prevent them from presenting their defense.

As to the defendants’ sentences, the Court first rejected the government’s argument that the purported guideline errors were harmless because, although the court said it would impose the same sentence, it did not sufficiently justify an upward variance from 57-71 months (which would have been the correct range) all the way up to 252 months, and so that sentence would have been substantively unreasonable.  Thus, the Court proceeded to address the guideline issues, but found: no clear error in the drug quantity calculation based on a finding that 10% of the prescriptions were illegal; no clear error in an obstruction enhancement based on false testimony at trial; and, although the court erroneously applied a two-level rather than one-level money laundering conviction enhancement, that error was harmless because it did not affect the guideline range.  As to restitution, the Court found no clear error in awarding a certain percentage of payments that insurers made for the prescriptions.