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.
