[00:00:00] Speaker 02:
Final argument set for this morning, which is United States versus FAM case number 23-1175.

[00:00:29] Speaker 01:
May it please the court.

[00:00:30] Speaker 01:
My name is Bo Brindley, and I represent the defendant appellant, Jung Pham.

[00:00:37] Speaker 01:
In Ruan versus United States, the majority found that proving a guilt of a medical practitioner under section 841 requires proof that the practitioner issued a prescription that he knew to be unauthorized.

[00:00:55] Speaker 01:
Menzrea applied to the authorization clause

[00:01:00] Speaker 01:
Dr. Pham, at his guilty plea colloquy, was not told that he could only be guilty if he knew he lacked authorization.

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His subjective authorization was not mentioned nor discussed at that guilty plea colloquy.

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And therefore, under Ruan, that guilty plea was insufficient.

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The government responds by citing Ninth Circuit case

[00:01:29] Speaker 01:
your case of fine gold and saying that all Ruan did was settle a circuit split by siding with the fine gold side, the ninth circuit and seventh circuit side.

[00:01:43] Speaker 01:
But that is simply not correct.

[00:01:47] Speaker 01:
And it's not correct for a simple reason.

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According to fine gold, you're guilty if you know

[00:01:54] Speaker 01:
that you're prescribing for no legitimate medical purpose.

[00:01:59] Speaker 01:
It takes the language from 1306.04, the regulation, and uses that to define guilt.

[00:02:07] Speaker 01:
The problem with that is that a doctor who knows he's prescribing for a purpose that the medical community does not deem legitimate, that doctor could also sincerely believe

[00:02:22] Speaker 01:
that he has the power and the authority under his DEA registration from the Controlled Substances Act to issue that prescription anyway.

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And if he sincerely believes it, he is not guilty.

[00:02:35] Speaker 04:
under Ruan but so is so in order to believe that he would have to be Mistaken about what the regulation says.

[00:02:42] Speaker 04:
Is that right?

[00:02:42] Speaker 04:
No Because the regulation says It has to be an unusual course of practice for a legitimate medical purpose and he admitted that it wasn't right so

[00:02:56] Speaker 04:
That seems tantamount to an admission that it was unauthorized unless he didn't know about the regulation or didn't know what the regulation said or had some theory that the regulation was invalid or something.

[00:03:06] Speaker 01:
He could believe that he has the authority as a doctor registered with the DEA to violate

[00:03:15] Speaker 01:
the regulation.

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He could sincerely believe that.

[00:03:19] Speaker 04:
So he would have to believe that there's some sort of exception to the regulation or something like that.

[00:03:24] Speaker 04:
I guess where I'm going with this is it seems like, given the facts that he admitted in the plea colloquy and given the regulation,

[00:03:34] Speaker 04:
The only way that those two things don't add up to an admission of knowledge that this was unauthorized is if he has a mistake of law.

[00:03:47] Speaker 01:
Yes, he could have a mistake of law, and that was not allowed for here.

[00:03:51] Speaker 04:
So normally, a mistake of law is not a defense.

[00:03:56] Speaker 04:
When the statute requires willfulness, maybe it is, but this statute does not require willfulness.

[00:04:01] Speaker 04:
So how do you get out of Ruan the idea that a mistake of law can be a defense?

[00:04:10] Speaker 01:
I think that's precisely what the reasoning of Ruan was.

[00:04:13] Speaker 01:
Justice Breyer in Ruan writing for the majority talks extensively about Rahif.

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He talks extensively about Lipporada.

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Lipporada is a case just like this.

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where the person knew all of the facts that rendered it unauthorized, just like Dr. Pham said he knew at his plea colloquy.

[00:04:33] Speaker 01:
And in Liberata, the Supreme Court says that is not enough.

[00:04:36] Speaker 01:
When authorization is the thing, the legal question of authorization is the thing that separates the innocent from guilty conduct, as they says it is here.

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When that is the issue that decides guilt from innocence, when that is the case, they must know, as Liberata said,

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that they were legally unauthorized.

[00:04:57] Speaker 01:
And it is because the majority took that position that we get Justice Alito's concurrence saying that they've taken a radical new course.

[00:05:06] Speaker 01:
If all the majority was doing was saying that we're going to agree with fine gold and decide the case that way, just the concurrence would make no sense.

[00:05:18] Speaker 01:
There would be no radical new course.

[00:05:21] Speaker 01:
In fact, the concurrence announced a standard that is almost identical.

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It's a little bit more lenient than fine gold, but it's similar.

[00:05:32] Speaker 01:
But he said we're not doing that because they've taken a radical new course.

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That course is to say you have to know the legal issue.

[00:05:40] Speaker 01:
It's the collateral legal issue that was present in Raheef, present in Liberata, present here.

[00:05:47] Speaker 01:
You must know that you're legally unauthorized.

[00:05:51] Speaker 01:
Dr. Pham was not told that.

[00:05:53] Speaker 01:
He never admitted that.

[00:05:54] Speaker 01:
In his affidavit, he said that he would not have pled guilty if he knew that because he thought he had the authority.

[00:06:02] Speaker 01:
There is a difference between thinking that you

[00:06:06] Speaker 01:
Disagree with your peers or disagree with the medical community about where the legitimacy of your purposes and know you do know you do and yet still believe I have the authority as a doctor under the law and under my Registration to prescribe and if you have that belief Ruan says you're not guilty fine gold says you are guilty and

[00:06:28] Speaker 01:
Because you're prescribing knowing that there's no legitimate medical purpose.

[00:06:33] Speaker 01:
Sorry.

[00:06:34] Speaker 02:
Can I just ask?

[00:06:35] Speaker 02:
Yes.

[00:06:36] Speaker 02:
I appreciate your argument here.

[00:06:39] Speaker 02:
What standard of review are you suggesting that we apply to determine whether the guilty plea was involuntary?

[00:06:48] Speaker 00:
Well, I think what we have here is a change in the law.

[00:06:53] Speaker 02:
But are you saying every time there's a change in the law that whereas then he's entitled to change his guilty plea?

[00:07:01] Speaker 01:
When the Supreme Court says that there is an omitted element as to mens rea, absolutely.

[00:07:07] Speaker 01:
If the defendant has not been advised on the mens rea.

[00:07:11] Speaker 00:
Well, the Supreme Court said that before he entered his plea.

[00:07:18] Speaker 01:
Yes, the Supreme Court said that before he entered his, no, the Supreme Court said that after he entered his plea, before he was sentenced, he moved to withdraw the guilty plea to preserve this issue.

[00:07:28] Speaker 02:
And so, yes, the- Right, and the district court rejected that and said no, the guilty plea was knowing involuntary.

[00:07:35] Speaker 02:
So my question is, what are we doing, are you suggesting we're doing a de novo standard of review as to whether it was knowing involuntary or are we-

[00:07:43] Speaker 02:
Do we have to give some deference to the district court's determination that this is not knowing or that the original guilty plea was knowing about?

[00:07:52] Speaker 01:
In this instance, Judge, I don't think that any deference is due because this is purely a mistake of law.

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A mistake of law is automatically an abuse of discretion, even if that's the standard.

[00:08:03] Speaker 02:
Well, if the district court abused its law.

[00:08:05] Speaker 02:
But if the district court misapplied the law, you're right.

[00:08:09] Speaker 02:
But this seems to be different.

[00:08:10] Speaker 02:
I mean, the district court made a factual determination that this was, well, at least a mixed factual determination that this was not, that his original plea was still knowing and voluntary.

[00:08:23] Speaker 01:
The district court made that decision by issuing a legal opinion and talking about the state of the law and saying Feingold wasn't changed by Ruan.

[00:08:33] Speaker 01:
That's false.

[00:08:33] Speaker 01:
That's a mistake of law.

[00:08:35] Speaker 01:
That's an abuse of discretion no matter what.

[00:08:37] Speaker 04:
Can you address the, I guess it's the antipenultimate paragraph in Ruan that

[00:08:44] Speaker 04:
I think it's cited in the briefs.

[00:08:47] Speaker 04:
The government can prove knowledge of lack of authorization through circumstantial evidence, and then the next sentence talks about how the regulation defines that.

[00:08:57] Speaker 04:
One way to read that, I think the government's reading of that, is that that says that if those objective criteria in the regulation are present and the defendant knows about them,

[00:09:09] Speaker 04:
then that establishes knowledge of lack of authorization.

[00:09:13] Speaker 04:
Why is that reading wrong?

[00:09:14] Speaker 01:
There's multiple reasons why it's wrong.

[00:09:16] Speaker 01:
The primary reason why it's wrong is it's inconsistent and ignores all of the citation of Raheef and Lipperata and all of that.

[00:09:23] Speaker 01:
None of those things would matter if that reading is correct.

[00:09:26] Speaker 01:
The Supreme Court, if they wanted to say, we're attaching knowledge to the regulation, they would have attached knowledge to the regulation.

[00:09:33] Speaker 01:
Instead, what they did was heavily criticize that regulation.

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and call it vague, and criticize it as leading to a difficulty in determining guilt from innocence.

[00:09:44] Speaker 01:
An oral argument, Justice Kavanaugh observed, legitimate medical purpose is a vague consideration, and people can disagree.

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And then after that, they make this decision that authorization is what matters.

[00:09:57] Speaker 01:
And if the question is, did he know that he was legally authorized like Lipporata, then Dr. Pham wasn't properly advised, and he didn't plead guilty to this offense.

[00:10:07] Speaker 01:
And that's the situation that we're in.

[00:10:09] Speaker 01:
Feingold does not survive Ruan.

[00:10:13] Speaker 01:
And if it does, because Feingold is defining this thing, it's defining whether or not he's guilty by reference to the regulation only.

[00:10:23] Speaker 01:
So what that really is doing is it's saying he's aware of the facts that make this unauthorized, the regulation violation,

[00:10:30] Speaker 01:
And since he's aware of that, that's sufficient.

[00:10:33] Speaker 01:
But in Liparada, which Ruan follows from expressly, in Liparada, they said that that's not true.

[00:10:42] Speaker 01:
Knowledge of the fact that make it unauthorized is insufficient.

[00:10:45] Speaker 01:
He must know he was legally unauthorized.

[00:10:48] Speaker 01:
And we believe that's a standard here.

[00:10:49] Speaker 02:
OK.

[00:10:50] Speaker 02:
Well, you're out of time.

[00:10:51] Speaker 02:
We'll give you a minute for rebuttal.

[00:10:52] Speaker 01:
Thank you, Your Honor.

[00:11:01] Speaker 03:
Good morning, Your Honor's may have pleased the court Brett Sagal on behalf of the United States.

[00:11:05] Speaker 03:
I'm going to start with simple responses.

[00:11:08] Speaker 03:
Judge rotor you actually were correct.

[00:11:11] Speaker 03:
This was incorrect.

[00:11:13] Speaker 03:
Ruan came out in June of 2022.

[00:11:14] Speaker 03:
The defendant pled guilty in October of 2022.

[00:11:19] Speaker 03:
He pled guilty months after the Ruan decision.

[00:11:22] Speaker 03:
That was incorrect.

[00:11:24] Speaker 03:
Ruan did not in the least do a.

[00:11:31] Speaker 03:
Willfulness, knowledge of the law standard, not in the least.

[00:11:35] Speaker 03:
Its specific language said, in citing the three cases, Lipprata, Raheef, and Cheek, that it mentioned, it was only using those by analogies to determine whether the knowledge, the mens rea element, went to both halves of the statute, the part that went before the knowingly and intentionally, which is the accept as authorized, and the second clause, which was the distribution of the drugs.

[00:12:00] Speaker 03:
And it looked to those cases only to decide that there was precedent to using it before and after the clauses.

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It did not in the least choose a willfulness standard of knowledge of the law or anything that those cases cited.

[00:12:16] Speaker 03:
It was cited only by analogy and the words of the decision itself says that's what it's doing.

[00:12:22] Speaker 03:
The decision itself defined what authorization was.

[00:12:27] Speaker 03:
outside the course of professional practice without a legitimate medical purpose, turning to the regulation specifically in the first paragraph of the Supreme Court decision, citing that regulation as the basis for accept as authorized and doing so and coming back to that multiple times and saying,

[00:12:48] Speaker 03:
We're doing it because that's what every case has been doing it.

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That's what the parties have been defining it.

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And at no point has the defendant even here defined it any any other way.

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Even in his reply brief when he cites to

[00:13:02] Speaker 03:
the 10th Circuit case and then the Romand to the District Court case, his jury instructions there define authorization or, more importantly, unauthorized by those same two clauses of the regulation.

[00:13:16] Speaker 03:
And the 10th Circuit case in Cannes, the Romand case, which I believe they think is their best support of their argument here, even tethered the elements to that regulation, the same as every other case, the same as Feingold.

[00:13:31] Speaker 03:
And there is nothing in Ruan that is incompatible with fine gold.

[00:13:37] Speaker 03:
And I would ask your honors to look at, if you haven't already, my colleagues briefed to the 10th Circuit and for certioria, because what they have is asking the Supreme Court to adopt the fine gold standard.

[00:13:51] Speaker 03:
That wasn't the standard in the 10th Circuit.

[00:13:53] Speaker 03:
The 10th Circuit had an objective standard, not a subjective standard.

[00:13:58] Speaker 03:
In the 10th Circuit, the reason why the Supreme Court

[00:14:02] Speaker 03:
sent back to make findings at that trial was because whether or not there was sufficient facts and whether the jury instructions were sufficient, since it did use an objective standard for the regulation clause, the accept as authorized clause, it didn't create this bright line rule of what would need to be done.

[00:14:21] Speaker 03:
There were no magic words that were needed.

[00:14:24] Speaker 03:
It specifically said mens rea applies to two clauses of the statute.

[00:14:29] Speaker 03:
It's not more complicated than that.

[00:14:32] Speaker 03:
And my colleague here knows that because he's handled many of these cases, including two of the cases we cited to in our 28-J letter.

[00:14:41] Speaker 03:
Multiple circuits, the third, the fifth, the seventh, the 11th, the 10th, every one of them in a two-year period that has handled these very cases.

[00:14:53] Speaker 02:
Has any circuit come out the other way?

[00:14:55] Speaker 02:
None.

[00:14:56] Speaker 02:
There's no circuit split at this point.

[00:14:58] Speaker 03:
Not only not a circuit split, every one of them has consistently held.

[00:15:01] Speaker 03:
And again, the 10th circuit, which he cites through the Connery man, isn't defining it any differently.

[00:15:09] Speaker 03:
It's just now using subjective intent rather than the objective intent that it used to.

[00:15:14] Speaker 03:
There is nowhere that's reading the regulation out.

[00:15:17] Speaker 03:
There's definitively nothing saying that there is a full, as just described, if a defendant

[00:15:25] Speaker 03:
puts on any evidence that he didn't think he was violating the regulation.

[00:15:29] Speaker 03:
It's a full defense.

[00:15:31] Speaker 03:
Ruan did not provide a full defense.

[00:15:34] Speaker 03:
It even discussed what would be evidence that would be put on if a defendant says, I didn't think I was acting outside of the regular course of medical practice and legitimate medical purpose and so forth.

[00:15:50] Speaker 03:
It's circumstantial evidence that can be put on

[00:15:53] Speaker 03:
to rebut that there is no full defense here and nowhere else has done it in each one of the circuits cited to in our brief and so forth, have defined the elements, essentially as this court and fine gold had nearly 20 years ago in 2006.

[00:16:11] Speaker 03:
the first suit proceeding indictment, which the which was the operative charging language, which the district court judge went over with the defendant as well as the elements that he was advised of, which I would also point out.

[00:16:24] Speaker 03:
It was 8 46 not 8 41 as well as the facts that supported it.

[00:16:29] Speaker 03:
He admitted multiple times in his factual basis alone of his knowledge and his intent to

[00:16:38] Speaker 03:
act outside the course of professional practice and without a medical purpose.

[00:16:42] Speaker 03:
This isn't a case, again, looking at the posture we're in.

[00:16:47] Speaker 03:
This was a plea agreement, a plea agreement where he admitted all these facts.

[00:16:50] Speaker 03:
There was no contrary facts outside of his knowledge and intent.

[00:16:55] Speaker 04:
You've made an argument based on the appellate waiver and the plea agreement.

[00:17:00] Speaker 04:
The argument that he is presenting here is that, as I understand it, is that because he didn't understand that there was this

[00:17:08] Speaker 04:
broader knowledge element in the statute that the plea was effectively not voluntary.

[00:17:15] Speaker 04:
Why doesn't that fall within the exception in the appellate waiver?

[00:17:22] Speaker 03:
I think the most direct answer, and hopefully all my answers are the most direct answer, the most direct answer is because he was advised of the proper elements and he- Well, okay.

[00:17:34] Speaker 04:
But that's the reason it fails on the merits and the waiver has an exception for an appeal based on a claim that the defendant's guilty plea was involuntary.

[00:17:44] Speaker 04:
That's the claim.

[00:17:45] Speaker 04:
It may be a bad claim, but it's the claim, isn't it?

[00:17:47] Speaker 03:
I would agree with both parts.

[00:17:49] Speaker 03:
It's a bad one.

[00:17:50] Speaker 03:
And I would also say that this court has repeatedly said that a

[00:17:57] Speaker 03:
Attempt to appeal a denial of a Motion to withdraw falls within your waiver of your right to appeal the conviction and that's exactly what happened here There was no intervening law There was no basis for him to withdraw from his plea and he waived that right in his appeal in the contract but if you I mean just to be clear if if you were right, I mean if if we agreed with him on on what Ruan means and that there really was this element

[00:18:26] Speaker 04:
then it wouldn't be barred by the waiver, in your view?

[00:18:29] Speaker 03:
I think that's correct.

[00:18:33] Speaker 03:
Look, if he was misadvised of the elements,

[00:18:37] Speaker 03:
Yes.

[00:18:38] Speaker 03:
He hasn't waived it.

[00:18:39] Speaker 04:
But- So is there any- I mean, because in your brief you said enforce the waiver and dismiss the appeal.

[00:18:48] Speaker 04:
But if in order to figure out whether we should do that, it sounds like you agree we have to assess the merits of the argument he's making.

[00:18:54] Speaker 04:
So what is the point?

[00:18:56] Speaker 00:
You're not going to push the jurisdictional argument.

[00:18:58] Speaker 03:
Correct.

[00:18:59] Speaker 03:
I mean, I guess I would say, as you see in our brief, there's two paths to the same answer, whether the judge abuses discretion in not doing it or whether it was a voluntary plea because he was advised of it.

[00:19:10] Speaker 03:
And so both take you to the same place.

[00:19:12] Speaker 02:
So you don't think we have to address waiver?

[00:19:16] Speaker 02:
I mean, we could ignore the waiver argument.

[00:19:19] Speaker 03:
and get to the merits and say that the district court did not abuse its discretion, looking at the totality of the record, first advising him properly of the elements, him admitting to the facts.

[00:19:29] Speaker 02:
And again, the fact- Can I ask you, if we, I take it you also agree that this is an abuse of discretion review.

[00:19:36] Speaker 02:
I guess it then just depends on whether this is a legal issue or a factual issue.

[00:19:42] Speaker 02:
I mean, are we ultimately reviewing this for a de novo legal

[00:19:46] Speaker 02:
error or are we, I mean it has this flavor of a mixed, I mean there's sort of a factual element to this.

[00:19:54] Speaker 03:
Correct and I think it's again using my terminology depending on which path you go, if you are looking purely at the appellate waiver I think it is slightly more of a legal question and not slightly more probably almost entirely a legal question and you're talking de novo.

[00:20:13] Speaker 03:
If you're looking at the totality of the record I think

[00:20:15] Speaker 03:
the factual basis.

[00:20:16] Speaker 03:
and the factual determinations by the court, including, again, not just him admitting to the elements.

[00:20:22] Speaker 03:
He admitted to prescribing over 100,000 opioids to known addicts, prescribing them to a nonpatient, sending his patients to his co-conspirator, knowing that other pharmacies would not fill his prescription.

[00:20:38] Speaker 03:
These are all facts that show that the district court, along with the totality of the record and the very thorough Rule 11 plea, could look at it and say,

[00:20:47] Speaker 03:
your honors can say, looking at the totality of the record, that it was not abuse of discretion, looking at the factual findings in addition to the legal determinations that Ruan does not say even remotely what was said, Ruan came out before the plea agreement.

[00:21:03] Speaker 03:
Everything was done appropriately, both legally and factually, and whichever path you take, you get to the same answer.

[00:21:10] Speaker 03:
Okay.

[00:21:11] Speaker 03:
Thank you, counsel.

[00:21:12] Speaker 02:
Like I said, we'll give you one minute for rebuttal.

[00:21:19] Speaker 01:
The inaccuracy of the government's position is made most apparent when he said the following, that Ruan applied mens rea to two clauses in the statute.

[00:21:29] Speaker 01:
No, it didn't.

[00:21:31] Speaker 01:
Those two clauses he's talking about are a regulation from the attorney general.

[00:21:35] Speaker 01:
Rouen applied the mens rea to one clause, the preparatory clause, about authorization.

[00:21:42] Speaker 01:
That's the element.

[00:21:43] Speaker 01:
There is a circuit split.

[00:21:44] Speaker 01:
The Fifth Circuit case of Le Martinier that they cited acknowledged a circuit split with the Tenth Circuit in Cannes.

[00:21:52] Speaker 01:
It's in Le Martinier's opinion.

[00:21:55] Speaker 01:
Cannes, too, explicitly says that violation of the two prongs

[00:22:00] Speaker 01:
of the regulation is not sufficient to establish guilt.

[00:22:05] Speaker 01:
It provides objective evidence that illuminates the question of whether he knew he was not legally authorized.

[00:22:13] Speaker 01:
And the district court in Cannes, when we took this back, agreed with us completely, took out the legitimate and took out usual

[00:22:25] Speaker 01:
from the instruction.

[00:22:27] Speaker 01:
There's no usual course of practice instruction in con, nor legitimate medical purpose.

[00:22:31] Speaker 02:
Thank you, counsel.

[00:22:32] Speaker 01:
Thank you, Your Honor.

[00:22:33] Speaker 02:
We've got your argument.

[00:22:33] Speaker 02:
The case is now submitted.

[00:22:35] Speaker 02:
The court is in recess till this afternoon.