Federal Criminal Lawyer Blog

Earlier this morning the United States Supreme Court issued a unanimous 9-0 decision, holding that the police engaged in a Fourth Amendment "search" when, without the benefit of a valid warrant, they put a GPS tracking device on a suspect's vehicle. The case is Jones v. United States. This is potentially a huge ruling that we need to assess more fully in the days and weeks to come, but for now, let's look at the decision itself.

Law enforcement officials in the District of Columbia suspected Antoine Jones of being a large-scale drug trafficker. Among other investigative tools, they wanted to put a Global-Positioning-System (GPS) monitor on a vehicle that Jones regularly drove. The officers got a warrant, but messed up and did not put the monitor on the vehicle within the 10-day window authorized by the judge who issued the warrant. As a result, the monitor was put on the vehicle without the benefit of a valid warrant. The GPS monitor tracked Jones' travels for about a month, resulting in evidence that tied him to a large drug stash-house, among other information. This evidence was then used to convict Jones.

All nine justices on the Supreme Court agreed that this was an illegal search under the Fourth Amendment. Although they all reached the same result, there is a big difference between the justices as to the underlying rationale for the decision.

Justice Scalia wrote the majority opinion for himself and four other justices. Scalia basically resurrected the property-based view of the Fourth Amendment, noting that the officers engaged in an old-fashioned common law trespass when they placed the GPS monitor on the vehicle. Such a trespass is always a "search" when accompanied by an intention to obtain information.

Justice Alioto wrote a concurrence for he and three other justices. Alito wanted to retain the "reasonable expectation of privacy" ruling from the seminal Katz v. United States decision. Under Alito's theory, suppression decisions would turn not on who owned property but on whether society currently recognizes that a person has an expectation that certain information would not be exposed to law enforcement. Alito almost always tries to help the prosecution, so his theory would often result in a ruling that no "search" occurred.

Justice Sotomayor sided with Justice Scalia's majority opinion, but her concurrence may be the most prescient part of the whole case. Proving that she is beginning to be the intellectual force on the Court that many predicted, Justice Sotomayor noted that both views may become more important in light of the rapid advance of technology in our modern day world. "GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail abouther familial, political, professional, religious, and sexual associations." She further notes that because it is so cheap to do, the police will resort to such secret electronic monitoring more and more. She ponders whether most people really expect that their government might track their daily movements.

Justice Sotomayor also ponders whether we should re-think the line of cases holding that people abandon their expectation of privacy when they turn property over to a third party. She notes that we expose vast quantities of private information when communicating with a bank, or even using our internet service provider to surf for a new restaurant. She doubts whether most Americans would believe they surrendered their privacy rights in this situation just because they agreed to the ISP's terms of service.

This is a fascinating decision with roots in the past but application for the present and future. We are glad to see the Supreme Court issue a decision that recognizes the importance of personal property rights, privacy, and the need to keep government in check.

In a federal white collar criminal case originating out of the Northern District of Florida, the Eleventh Circuit recently reversed a physician's conviction and 292 month sentence. The case involved a family practice doctor who was charged by the federal government with health care fraud and overprescribing. In essence, the Government's theory of prosecution under both the health care fraud and overprescribing charges was the same -- that the family practice physician had prescribed unnecessary or excessive quantities of controlled substances without a legitimate medical purpose and “outside the usual course of professional practice.”

The charges at issue related to the treatment of twenty of the doctor's patients and two of those charges alleged that "death resulted" from the use of the controlled substances which the doctor allegedly overprescribed. Although all of the charges were significant, the "death resulting" allegation was especially significant because, as we previously reported here, it can carry a mandatory minimum sentence of 20 years and a number of doctors have received life sentences for those charges.

Like many doctors who face the loss of their livelihood and their liberty, Dr. Ignasiak made the decision to take his case to trial. At the conclusion of the trial, however, the jury returned guilty verdicts on the majority of charges and the judge sentenced the doctor to 292 months.

On appeal, the doctor raised a number of issues. But after describing those issues, the Eleventh Circuit concluded that it only needed to focus primarily on one of those issues because that issue, by itself, required the court to reverse the doctor's conviction and sentence.

The issue that the doctor successfully raised on appeal involved the manner in which the Government attempted to prove the "death resulting" allegation. In order to prove that allegation at trial, the Government (over the doctor's objection), introduced copies of autopsy reports and testimony concerning those reports, without calling as witnesses the coroners who actually prepared those reports. Based on some relatively recent authority from the United States Supreme Court, the doctor argued that the admission of this evidence violated his Sixth Amendment right to confront the witnesses against him. And on appeal, the Eleventh Circuit agreed, holding that it could not conclude that the Government proved beyond a reasonable doubt that
admitting evidence of five more patients who allegedly died as a result of Ignasiak’s conduct “did not contribute to the verdict obtained." For these reasons, the Eleventh Circuit reversed the doctor's conviction and 292 month sentence.

Interestingly, in addition to the issue of whether Dr. Ignasiak's conviction should be overturned, the Eleventh Circuit also discussed an issue involving criminal conduct committed by the Government's main expert, Dr. Arthur Jordan. According to the opinion, after Dr. Ignasiak was convicted, the Government filed a Notice with the trial court that for the first time revealed that Dr. Jordan engaged in criminal conduct beginning at an unspecified time up to and continuing until 2006. Specifically, Dr. Jordan had, on nine separate occasions, used a counterfeit badge and his United States Marshal credentials to pose as an on-duty U.S. Marshal in order to carry firearms on commercial airplanes while on personal travel. On the ninth flight, a Transportation and Security Administration (“TSA”) agent discovered Dr. Jordan’s ploy, and seized the weapons, counterfeit badge, and Marshal Service credentials. Instead of prosecuting Dr. Jordan, however, the United States allowed him to enter into a pretrial diversion agreement, although he admittedly committed federal felony offenses.

Before the district court, the Government successfully argued that the Notice it filed regarding Dr. Jordan should remain under seal in order to protect Dr. Jordan's privacy rights and to prevent potential retaliation against him. Although the district court agreed with this argument, the Eleventh Circuit rejected it, stating that "in this case, the public has a great interest in learning the contents of the Notice—namely, learning the highly material fact that Dr. Jordan, a repeat government expert witness, abused his government authority and committed acts which could have been charged as felonies. To say that the defense would have preferred to use this information to discredit Dr. Jordan’s testimony is almost certainly an understatement."

For those of you that have the time, I would certainly recommend reading the Eleventh Circuit's opinion in Ignasiak, which can be found here. Over the last few years, we have seen more and more prosecutions of doctors that prescribe controlled substances and from announcements that we have seen coming out of this and other federal districts, this prosecutorial focus is not likely to end anytime soon. Our previous post on this issue can be found here.

Today, by a 7-2 vote, the United States Supreme Court sided with a man on Alabama's death row. The Supreme Court overturned a decision where the Eleventh Circuit held that a death-row inmate should lose his ability to challenge his conviction just because the mail containing an order never got to the out-of-state attorneys then representing him. The case is Maples v. Thomas.

Cory Maples was convicted and sentenced to death in 1997 when represented by two attorneys who operated within Alabama's then-$1,000 limit to pay lawyers for out-of-court preparation prior to a death penalty trial. After the conviction, no local attorneys were assigned to handle his post-conviction challenges to his sentence. As has become common, a big law firm (New York's Sullivan & Cromwell) assigned two associates to work on the post-conviction portion of Mr. Maples' case. These young lawyers enlisted an Alabama lawyer to act as local counsel, as required by local rules and custom. The Sullivan & Cromwell attorneys began formulating an attack as to whether trial counsel were constitutionally effective when representing Maples at the sentencing phase of the trial.

In 2003 the judge handling the post-conviction aspect issued a ruling denying the claims raised by the Sullivan & Cromwell attorneys. Unfortunately, these lawyers had by then moved on to greener pastures, one taking a clerkship with a federal judge, the other getting a position in Europe. The Sullivan & Cromwell mailroom returned the letters as being "undeliverable." The clerk never bothered to check with Sullivan & Cromwell, or contact the personal addresses or phone numbers that the young attorneys had listed when applying for permission to practice in Alabama. The local attorney likewise did nothing.

The time for appealing from the judge's order passed. Someone at Sullivan & Cromwell figured out the problem, and petitioned for permission to file a tardy appeal of that order. From that point forward, Alabama prosecutors successfully argued that Mr. Maples was therefore forever barred from raising his claims. All of the Alabama courts agreed with the prosecutors, as did the U.S. District Judge to whom the matter was assigned.

On appeal to the Eleventh Circuit, Maples made persuasive arguments showing that he did not have an "adequate" method for challenging the failure to let him litigate his claims. More importantly, he demonstrated that the interests of justice demanded that a death sentence should not turn on the performance of mail room employees or clerks, and he should not be prevented from challenging his sentence just because changes of address prevented his lawyers from receiving a court order. As seems to be standard practice in the Eleventh Circuit, that court gleefully denied his claims, pointing to the raft of prosecution-oriented decisions saying that clients can sometimes suffer because of their lawyer's missteps. The majority in the Eleventh Circuit did not seem to care that a man's life was in the balance. Fortunately, Judge Rosemary Barkett on the Eleventh Circuit did care. She penned a strenuous dissent, and her arguments were echoed in the Supreme Court ruling issued today.

In technical terms, today's decision holds that these facts were sufficient "cause" so as to excuse his "procedural default" in not filing a timely challenge to the 2003 order denying relief. But in a broader sense, this ruling stands for the proposition that at least seven justices were able to see the forest for the trees, and would not let a petty and cramped view of justice prevail. Bravo!

The United States Court of Appeals for the Eleventh Circuit, siting here in Atlanta, reversed a federal tax conviction today because the judge impermissibly participated in plea discussions with the Defendant. The case is United States v. Davila.

The Federal Rules of Criminal Procedure make it crystal clear that while the prosecutor and defense attorney can negotiate toward a plea agreement, the Judge may not in any way participate in these discussions. There are three main reasons for this prohibition: to avoid coercing a defendant into pleading guilty, to protect the integrity of the judicial process, and to preserve the Judge's impartiality after the negotiations are completed. The Federal Rules are quite different than what takes place in many State courts, where Judges regularly get involved in the plea discussions.

The Eleventh Circuit also has a rule holding that judicial participation in plea discussions amounts to "plain error." There are no exceptions to this rule, and a Defendant does not have to object or even show any prejudice he suffered from the judge's improper intrusion into the plea discussions. This is one of the few areas where the appeals court here in Atlanta has a rule that is more friendly to criminal defendants than other courts around the country.

In the Davila case issued this afternoon, the Federal Magistrate Judge conducted a hearing to look into Mr. Davila's dissatisfaction with appointed counsel. Davila was unhappy because the appointed lawyer only wanted to talk about a potential guilty plea. The Magistrate Judge told Davila that perhaps a plea was his best option, there might not be any defenses, and a plea might be a good idea especially because of Davila's long criminal record.

On appeal the Eleventh Circuit reversed the sentence and conviction based on the Magistrate Judge's comments. The appellate court held that these comments violated the prohibition against participation in plea discussion, because the Magistrate basically implied that Mr. Davila would certainly get a longer sentence if he did not plead. The Eleventh Circuit reversed even though it noted that the Magistrate may well have only intended to help Davila, not harm him. Additionally, the rule in the Eleventh Circuit is that when the case gets back to the District Court, it must be re-assigned to a new Judges who had no role in the earlier proceedings.

In a case arising out of south Florida and its proximity with Cuba, the United States Court of Appeals for the Eleventh Circuit recently affirmed parts of a case involving a plan to smuggle potential baseball players into the United States. Besides being an interesting view into the modern methods of stocking a Major League Baseball franchise, the case also contains lessons for lawyers and employers. As we are seeing in our immigration crimes practice, more and more employers run into the danger of a potential federal criminal prosecution whenever the employer communicates with or hires a person from another country.

The case is United States v. Gustavo Dominguez. Mr. Dominguez is a naturalized U.S. citizen who was born in Cuba. Mr. Dominguez has represented numerous Cuban nationals who came to this country and later became professional baseball players. The government's theory was that Dominguez conspired with others who smuggled the potential players into this country, with the goal of later representing the players if and when they were snapped up by a Major League franchise. The players were taken to California where Dominguez got an experienced immigration attorney to help them work through the immigration process. The trip to California and the immigration applications led to charges of transporting illegal aliens and concealing or harboring them in this country.

The jury found Mr. Dominguez guilty of conspiring with and aiding others who smuggled the players into the country. Additionally, the jury held that Dominguez was guilty of helping to transport the Cuban players from Florida to California and also found him guilty of harboring or concealing these same players. The majority of the Court of Appeals Panel reversed the convictions relating to transporting and concealing the players. Basically, the majority held that by taking the players to an attorney Dominguez could not be guilty. Oddly, the majority affirmed the convictions for smuggling these same players.

Judge Tjoflat wrote a spirited dissent. He explained that the trial court's rulings basically required that someone in Mr. Dominguez's situation needed the sophistication of a "Philadelphia lawyer" in order to wade through issues related to people who enter this country from Cuba, related to the "wet foot-dry foot" policies that apply solely to immigrants from this one country. According to Judge Tjoflat, Dominguez should receive a new trial where he can present testimony concerning this policy and his state of mind.

We represent several employers either charged or threatened with indictment for employing persons from other countries who turn out to be here illegally. This case is just the most recent illustration of how federal immigration policy often intersects with the law involving defending a person against a federal criminal prosecution.

In a federal white collar criminal case originating out of the Northern District of Florida (Pensacola Division), the Eleventh Circuit recently affirmed life sentences for a pain management physician convicted of various federal offenses. Among other things, the federal indictment against Dr. David Webb alleged that he unlawfully dispensed controlled substances in violation of federal law (21 U.S.C. § 841), and engaged in health care fraud in violation of § 1347 by issuing prescriptions that were not medically necessary. In connection with both the unlawful dispensing charge, as well as the health care fraud charge, the indictment alleged that Dr. Webb's prescriptions resulted in the death of three of his patients.

At trial, both the Government and Dr. Webb presented expert testimony concerning the legitimacy of the controlled substance prescriptions at issue. According to the Government's expert, Dr. Webb: (1) gave inadequate initial evaluations, including failing to obtain prior medical records and sub-standard physical exams; and (2) failed to refer patients to specialists to help manage their pain. In addition, the Government's expert also testified that Dr. Webb also ignored signs of drug dependency in his patients and continued to prescribe drugs even when patients were “out of control with their self-taking of the medicine.” Accordingly, based on these and other factors, the Government's expert opined that Dr. Webb’s prescribing practices were “dangerous, absolutely incredible,” and “clearly inconsistent with the usual course of medical practice and for other than legitimate medical purposes.” At the conclusion of the trial, the jury returned guilty verdicts on all counts but one.

On appeal, Dr. Webb raised a number of arguments, seeking to vacate his three life sentences on the resulting in death counts, as well as the other counts for which he stood convicted. Most notably, Dr. Webb argued that the trial court erred in the instructions that it provided to the jury on the three death related counts.

In essence, Dr. Webb argued that the district court should have provided an instruction that would have required the jury to find that Dr. Webb's conduct proximately caused the deaths or, at a minimum, that the deaths were reasonably forseeable to Dr. Webb. The Eleventh Circuit, however, disagreed.

With respect to the § 841 charges, the court held that § 841's enhanced penalty requires only proof that the death resulted from the victim’s use of a controlled substance dispensed by the defendant. Likewise, with respect to the death charge pertaining to the health care fraud count, the Eleventh Circuit reached a similar conclusion; according to the Eleventh Circuit, the results in death language in each statute requires nothing more than a causal connection factually. In other words, under both statutes, the Government is not required to prove proximate cause or reasonable forseeability.

Although it may not help Dr. Webb, at least one judge on the three judge panel disagreed with the court's decision concerning the resulting in death language in the federal health care fraud statute. As the dissenting judge recognized, the majority's decision on this issue directly conflicts with the Sixth Circuit's decision in United States v. Martinez. According to the Sixth Circuit, "proximate cause is the appropriate standard to apply in determining whether a health care fraud violation ‘results in death.’"

In a previous post, we have discussed how federal prosecutors in the Atlanta area are ramping up investigations and prosecutions involving physicians that practice in the area of pain management. And as lawyers that have handled federal cases involving similar allegations before, we were disappointed by the Eleventh Circuit's decision to reject the Sixth Circuit's analysis in Martinez. Because of the conflicting decisions between the Sixth and Eleventh Circuits that we now have on the issue, however, we are hoping that the Supreme Court takes Dr. Webb's case (or a similar one) to resolve this Circuit conflict.

The Eleventh Circuit's opinion in Webb can be found here.

A seemingly overzealous prosecution team went after a medical doctor in a federal criminal prosecution regarding supposed excessive prescriptions for pain medicines. My law partner Carl recently wrote on this same topic. The defense team uncovered the possibly improper prosecution tactics. The jury found the doctor innocent, after which the trial judge ordered that the United States pay the doctor's legal fees. What really took the case to the next level is that the trial judge issued a public reprimand of the prosecutors and referred them for potential disciplinary action. Nothing is as angry as a prosecutor's office that not only loses, but is told that its people are acting improperly. The government appealed the attorney fee ruling and the reprimand of the prosecutors. Yesterday, a divided Panel from the United States Court of Appeals for the Eleventh Circuit agreed with the government. The case is United States v. Hoffman, et. al.

The majority clearly wanted to help the prosecutors, as is shown by the opening lines in the opinion. "The stakes in this appeal are high: they involve the sovereign immunity of the United States, the constitutional separation of powers, and the civil rights and professional reputations of two federal prosecutors." Rarely does the Eleventh Circuit concern itself with "the civil rights and professional reputations" of lawyers other than prosecutors.

When litigating a motion to suppress before trial, the magistrate found (and the trial judge agreed) that the agents were not being truthful about what happened when they interrogated the doctor. Then, in the middle of trial the defense team discovered that the prosecutors had been taping conversations between witnesses and the defense lawyer. It turns out that this taping was done as part of an effort to remove the very qualified defense team. The trial judge was enraged, and allowed the defense to re-call the witnesses to the stand, with an instruction that told the jury this was being done because of the improper prosecutorial tactics.

After the jury found the doctor not guilty, the trial judge used the Hyde Act to make the government reimburse Dr. Shaygan all the legal fees he had to pay to defend against this case that was "brought vexatiously, in bad faith, or so utterly without foundation in law or fact as to be frivolous." Next, the judge held a hearing concerning the prosecutors, and took testimony from 6 witnesses. New prosecutors came in to try and minimize the damage, but the trial judge nevertheless issued an order for disciplinary action against the trial prosecutors.

The government convinced two of the three judges on the Panel to reverse both the order of attorneys fees and the disciplinary rulings against the trial prosecutors. The majority ruled that a defendant who is found not guilty can get back his or her attorney fees only if the entire case was vexatious and in bad faith from the very beginning. Additionally, the majority decided that the trial judge violated the constitutional rights of the trial prosecutors by issuing his disciplinary ruling without telling them ahead of time he was considering just such a course of action. In dissent, Judge Edmonson was also troubled by the whole case, and would have found that the order for payment of attorneys fees was proper because the trial prosecutors clearly acted in "bad faith."

This case is a perfect example of how difficult it is to defend a person against zealous federal prosecutors and agents. Fortunately for Dr. Shaygan, his defense team was up to the task.

Lawyers that specialize in defending federal criminal cases may be interested to know that the federal sentencing commission recently released a document entitled: "Selected Post-Booker and Guideline Application Decisions for the Eleventh Circuit". According to the Commission, "[t]he document is not a substitute for reading and interpreting the actual Guidelines Manual or researching specific sentencing issues." However, those of you that practice federal criminal law in Georgia, Alabama and Florida will find the document useful, because it does contain helpful "annotations to certain Eleventh Circuit judicial opinions that involve issues related to the federal sentencing guidelines."

I reviewed the document this morning and it is a fairly comprehensive. It not only includes case annotations dealing with many of the more common guideline provisions (including fraud, internet, and immigration offenses), but it also includes several sections that involve general principles of federal sentencing law, such as burden of proof issues, the requirements for sentencing on acquitted conduct, and departures and variances.

The document can be found here and for those of you that practice in other federal circuits, links to similar documents for those other circuits can be found here.

The Eleventh Circuit issued an opinion today on a fraud case out of Florida involving issues related to restitution. The appellate court reversed the restitution order, ruling that the government had not adequately proved the amount of restitution, nor had the district judge calculated restitution based on specific factual findings. The case is United States v. Singletary.

Like many of the federal fraud cases we handle, Singletary involved questions of how much "loss" was involved, along with how much "restitution" could be ordered. Many lawyers forget that these are two very distinct issues. "Loss" is a calculation under the United States Sentencing Guidelines, and this figure is one of the major factors that drives the calculation of the prison sentence in a fraud case. The Guidelines tell a judge to calculate "loss" as the "greater of actual or intended loss". Additionally, the Guidelines also instruct that loss can be "estimated" when the proof is difficult to establish.

Restitution is quite different than "loss." Restitution is based on the loss the victim actually suffered. In other words, "loss" can be much higher than restitution when the defendant tried to get money but was unsuccessful.

While "loss" and restitution are distinct concepts, each figure needs to be adequately proven by the prosecutor. Furthermore, when a defendant objects to either calculation, the sentencing judge must support the ultimate "loss" or restitution number with specific factual findings.

In Singletary, the Court of Appeals confronted a case where the prosecutor used a broad-brush approach to restitution, trying to come up with an estimated figure. The sentencing judge basically agreed with the prosecutor's approach, estimating a loss of $1 million. The Eleventh Circuit reversed because the trial court "failed to carry out the task" of rendering factual findings for each and every specific loss that supported the restitution order.

This case holds lessons for lawyers who handle federal fraud cases. Remember to make the government prove both the "loss" and restitution, and when they do not, appeal the issue. It might help the client in the long run.

Last week, the Eleventh Circuit Court of Appeals affirmed the convictions of Larry Langford, the former mayor of Birmingham, Alabama who was convicted last year on various federal white collar offenses, including mail and wire fraud, bribery, money laundering, and federal tax offenses.

To me, the most interesting aspect of the opinion is the way in which the Court of Appeals discussed the honest services portion of the federal mail and wire fraud charges. As we discussed in this previous post, last summer, the Supreme Court issued its opinion in United States v. Skilling, a case which, in essence, limited the honest services provision of the federal fraud statutes to bribery and kickback schemes.

Before Skilling was decided, many (if not all) federal circuits made a distinction between honest services prosecutions that involved public officials, as opposed to those working in the private sector. At the risk of simplifying the issue too much, it was far easier for the government to prove an honest services violation against a public official. Skilling itself, however, did not distinguish between public officials and private actors, leading some to believe that after Skilling, the prosecution of both public and private officials would be governed by the same standards.

In its decision in Langford last week, though, the Eleventh Circuit appeared to recognize that the public official/private actor distinction that existed in this Circuit before Skilling still exists. According to the Eleventh Circuit: Public officials inherently owe a fiduciary duty to the public to make governmental decisions in the public’s best interest. . . . [I]n a democracy, citizens elect public officials to act for the common good. When official action is corrupted by secret bribes or kickbacks, the essence of the political contract is violated. Illicit personal gain by a government official deprives the public of its intangible right to the honest services of the official."

Well before Skilling, there was considerable disagreement among judges regarding the reach and meaning of the honest services statute in both the public and private sector. Although Skilling limited the reach of the statute to cases that involve bribery and kickbacks, it did not address the abundance of issues over which this considerable disagreement existed. Given the Eleventh Circuit's apparent decision to return to the pre-Skilling era in which a distinction exists between the standards governing the prosecution of public officials and private actors, there are many issues that should and will be litigated in this amorphous area known as "honest services" fraud. As Justice Scalia himself recognized in Skilling, even with the majority's pairing down of the statute, the honest services statute nonetheless remains unconstitutionally vague.

The full opinion in Langford can be found here.

Earlier this year, the United States Attorney's Office for the Northern District of Georgia announced that federal prosecutors and federal agents are ramping up criminal investigations and prosecutions of so-called "pill-mills" in metro Atlanta. The statement (which was reported in the Atlanta Journal Constitution) was made during a "summit" on prescription drug abuse held here in Atlanta back in March.

Since that "summit", federal prosecutors in Atlanta have secured indictments against doctors and others, claiming that these individuals have violated federal controlled substance laws. Indeed, as recently as last month, federal prosecutors indicted doctors, managers, and owners of "Atlanta Medical Group", charging these individuals with a number of federal offenses. According to the press release issued in connection with the federal indictment, these individuals operated a "pill-mill", illegally distributing oxycodone in violation of federal law.

There is no doubt that prescription drug abuse is a serious problem that needs to be addressed. However, it is equally true that chronic pain is also a serious problem in the United States. Indeed, just last week, the New York Times published an article discussing a sweeping review on this issue that was recently released by the Institute of Medicine — the medical branch of the National Academy of Sciences. According to that review, it is "estimated that chronic pain afflicts 116 million Americans, far more than previously believed." The article goes on to describe that "[t]he toll documented in the report is staggering[,]" leading the chief of pain management at the Stanford School of Medicine (Dr. Sean Mackey) to conclude that number of people suffering from chronic pain "is more than diabetes, heart disease and cancer combined.”

The article goes on to note that "[f]or patients, acknowledgment of the problem from the prestigious Institute of Medicine is a seminal event. Chronic pain often goes untreated because most doctors haven’t been trained to understand it. And it is isolating: Family members and friends may lose patience with the constant complaints of pain sufferers. Doctors tend to throw up their hands, referring patients for psychotherapy or dismissing them as drug seekers trying to get opioids."

As I mentioned in an earlier post, we have represented a number of doctors in alleged over-prescribing cases, and in those cases, we learned a lot about this unique area of the law. Typically, the federal government prosecutes doctors under the same federal statute that it uses to prosecute cocaine dealers and other alleged drug offenders. In federal cases against doctors, however, the government has to prove that the prescriptions at issue were written “outside the usual course of professional practice and without legitimate medical purpose." Not surprisingly, the resolution of this important issue often depends upon expert testimony and the experts that the Government uses, quite often, take a very conservative view of what legitimate pain management physicians should be permitted to prescribe. That view, however, is not the only view. As the New York Times article quoted above recognized, the "proper use of the drugs early in a pain cycle can resolve pain problems sooner, and . . . opioids are also particularly useful for pain management near the end of life."

We will continue to follow developments in this interesting area of federal law. For those of you that may be interested, the full New York Times article can be found here.

Earlier today, the Eleventh Circuit reversed a federal conviction of a pain management doctor prosecuted in federal court. The case originated out of the Southern District of Georgia, and after a lengthy trial, the jury convicted the pain management doctor on 129 counts of unlawfully dispensing certain controlled substances by means of written prescriptions made “outside the usual course of professional practice and without legitimate medical purpose,” in violation of federal controlled substance laws.

On appeal, the doctor raised a number of issues, the most significant one being that the federal trial judge effectively denied him his right to testify by failing to notify him that he could testify in a narrative format. At trial, the doctor was not represented by a a lawyer. And when it came time to decide whether he wanted to testify on his own behalf, the trial judge failed to correct an obvious misunderstanding the doctor had concerning his right to testify.

More specifically, according to the trial transcript, the doctor incorrectly believed he could testify on direct examination only if was questioned by an attorney. Although the record established that the doctor was clearly ignorant of his ability to provide narrative testimony, the federal trial judge failed to correct this obvious misunderstanding. Rather, the trial judge merely informed the doctor that he had "an absolute right to testify."

On appeal, the Government argued that the doctor failed to preserve the issue in the trial court and that as a result, the plain error standard of review should apply on appeal. The Eleventh Circuit rejected this argument outright, going so far as to characterize the Government's argument as "absurd."

With respect to the underlying issue, the Eleventh Circuit reached the following conclusion: "[T]he district court is duty-bound to correct a pro se defendant’s obvious misunderstanding of his right to testify. Because this error was not harmless, [the doctor's convictions cannot stand."

In the last few years, the Government has certainly focussed a great deal of attention on the prosecution of pain management physicians in this District, as well as others. The law in that area is very interesting, and we have become very familiar with it, because we have represented a number of doctors facing similar charges. Although the fact pattern in today's decision is fairly unique, it is worth reading and the full opinion can be found here.