Thursday, June 28, 2018

Doctor Defendant Wins Reversal Based on Improper Amendment of the Indictment; Important Discussion of Expert Testimony

US v. Miller, --- F.3d ---, US v. Miller, No. 16-1231 (10th Cir. June 6, 2018) (published) - A must-read case if you have a battle of the doctor experts when a doctor is charged with distributing a controlled substance outside the usual course of medical treatment in violation of 21 U.S.C. § 841(a). Defendant was charged with a bunch of counts, including health care fraud, money laundering, distributing a controlled substance, and false statement. He was convicted of seven counts of distributing a controlled substance, and one count of making a false statement to the DEA. The Court upheld the district court's admission of the government's expert's testimony; rejected Miller's argument that several counts were duplicitous because they included at least two controlled substances that were prescribed on the same day to the same patient; reversed Miller's conviction on the false-statement count because the indictment was constructively amended; and found that Miller's argument that his sentence was procedurally unreasonable was moot because he had completed his sentence.

1. Battle of the Experts. The Court went over the standards for finding a doctor criminally liable under § 841(a), which is that a medical practitioner can violate the statute "if he acts without a legitimate medical purpose or outside the usual course of medical practice."

2. Duplicity. Four drug-distribution counts were not duplicitous even though they charged distribution of multiple drugs to a single patient on the same day.

3. Improper Amendment. The Court, on plain error review, reverses the defendant's conviction for making a false statement. Basically, one false statement was alleged in the indictment, evidence of that statement and another statement were presented to the jury, and the jury instructions failed to narrow the basis for the false-statement count back to the one alleged in the indictment.

Miller also challenged the conviction on the grounds that his statement was not false as a matter of law. The alleged false statement was that he answered "no" to a question on his DEA application that asked if he had "ever surrendered (for cause) or had a state professional license or controlled substance registration revoked, suspended, denied, restricted or placed on probation." One month prior to answering this question, Miller's state medical license had been suspended. Ten days prior, the state medical board had ordered the suspension "vacated." After much discussion of the meaning of the word "vacate," the Tenth Circuit agrees with the district court that, in this case at least and under Colorado law, the district court did not err in ruling that Defendant's answer on the application was false as a matter of law because his license had been suspended and the vacatur of the suspension order did not remove it from historical existence. However, Miller was free to argue, as he did at trial, that he honestly, though mistakenly, thought his answer was true based on the vacatur.