In United States v. Duldulao, No. 20-13973 (Nov. 29, 2023) (Jordan, Jill Pryor, Tjoflat), the Court affirmed in part, vacated in part, and remanded in part for a new trial.
This appeal was on remand from the United States Supreme Court in light of Ruan v. United States, 142 S. Ct. 2370 (2022). It concerns the criminal convictions of two doctors--Duldulao and Santos--who allegedly participated in a "pill mill"--a pain management clinic that prescribed controlled substances regardless of medical need. Both doctors served as medical directors of a clinic in Tampa, Florida, and were convicted of conspiracy to distribute and dispense controlled substances not for a legitimate medical purpose and not in the usual course of professional practice, in violation of 21 U.S.C. § 846. Santos was also convicted of multiple substantive counts of distributing controlled substances not for a legitimate medical purpose and outside the usual course of professional practice, in violation of 21 U.S.C. § 841.
In Ruan, the Supreme Court held that the scienter provision of 21 U.S.C. § 841(a) (“knowingly or intentionally”) applies to both prongs of the authorization exception--not for a legitimate medical purpose and outside the usual course of professional practice. So, to establish criminal liability under § 841 post-Ruan, it is not enough for the government to prove that a defendant acted outside the usual course of professional practice by violating an objective standard of care. Instead, the government must now prove that the defendant subjectively knew he was acting outside the usual course of professional practice or intended to.
On remand from the Supreme Court, both Duldulao and Santos challenged the jury instructions as to both the § 846 and § 841 counts. As to the § 846 jury instruction challenge, the Court found itself bound by its previous opinion in Ruan when it was remanded by the Supreme Court. On remand in Ruan, the Court reviewed a district court's § 846 instruction and held that the conspiracy instructions conveyed the adequate mens rea because they already required the jury to find that the defendant acted with subjective knowledge. The Court found the same to be true of the instructions here, and therefore, affirmed the § 846 convictions.
As to the § 841 jury instruction, the Court refused the government's invitation to find invited error, and instead found plain error in the instruction because it inadequately conveyed the required mens rea to authorize conviction under § 841(a). The Court also held that the error affected Santos's substantial rights because the jury could have rested its convictions on an impermissible theory of liability. Finally, the Court held that the error seriously affected the fairness, integrity, or public reputation of judicial proceedings. As a result, the Court vacated Santos's § 841 convictions and his sentence.
Duldulao and Santos also challenged the sufficiency of the evidence with regard to the § 846 conviction, which the Court again rejected. The Court also rejected Santos's challenge to the expert medical testimony presented by the government.
