This Report summarizes cases granted review on October 29 and November 5, 2021 (Part I).

Cases Granted Review: Ruan v. United States, 20-1410; Kahn v. United States, 21-5261

Ruan v. United States, 20-1410; Kahn v. United States, 21-5261. At issue is “whether a physician alleged to have prescribed controlled substances outside the usual course of professional practice may be convicted under [21 U.S.C. §]841(a)(1) without regard to whether, in good faith, he ‘reasonably believed’ or ‘subjectively intended’ that his prescriptions fall within that course of professional practice.” Petitioner Xiulu Ruan and his business partner are doctors who prescribed enormous amounts of oxycodone, morphine, and fentanyl to their patients between January 2011 and May 2015. They each made more than $3.7 million from their medical clinic and more than $550,000 in prescription service fees from the affiliated pharmacy they operated. Finding they were operating a “pill mill,” the federal government investigated their practices and then obtained a grand jury indictment against them. A jury convicted Ruan and his partner of multiple controlled substances and related charges. Ruan had proposed a good faith instruction that read: “Good faith in this context means good intentions and the honest exercise of professional judgment as to the patient’s needs. It means that the Defendant acted in accordance with what he reasonably believed to be proper medical practice.” The district court rejected the instruction because “good faith,” in its view, is “subjective,” and “the standard should be an objective one.” The court instead instructed the jury that “a medical doctor has violated section 841 when the government has proved beyond a reasonable doubt that the doctor’s actions were either not for a legitimate medical purpose or were outside the usual course of professional medical practice.” Ruan and his partner appealed, raising, among other issues, the district court’s treatment of their good faith defense. The Eleventh Circuit affirmed their convictions. 966 F.3d 1101. It held that the instruction given by the district court was correct. In the panel’s view, a physician may assert good faith only “as long as [his] conduct also was in accordance with the standards of medical practice generally recognized and accepted in the United States.”

Ruan argues that the Eleventh Circuit sapped the good faith defense of any independent meaning, by having it apply only to physicians whose prescriptions already fall within professional norms. In Ruan’s view, the circuits are divided into three camps on the issue of how a good faith defense applies to §841(a)(1) prosecutions. “To overcome a good faith defense in the Second, Fourth, and Sixth Circuits, the government must prove that the physician did not reasonably believe that his prescriptions fell within professional norms. To overcome a good faith defense in the First, Seventh, and Ninth Circuits, the government must prove that the physician subjectively intended a prescription to exceed professional norms. But neither of those ‘good faith’ defenses is available in the Eleventh Circuit. All it takes to convict a physician under the CSA is a finding that the doctor prescribed controlled substances outside generally accepted medical standards.” On the merits, he argues that “[a] meaningful good faith instruction helps ensure that convictions under the [Controlled Substances Act] are consistent with the ‘basic principle’ that ‘an injury is criminal only if inflicted knowingly.’” By contrast, he says, “the Eleventh Circuit’s rule reads any meaningful scienter requirement out of the statute.”

[Editor’s note: Some of the language in the background section of the summary above was taken from the petition for writ of certiorari and brief in opposition.]