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United States v. Jeffrey H. Feingold
Citations: 454 F.3d 1001; 2006 U.S. App. LEXIS 18319; 2006 WL 2035305Docket: 05-10037
Court: Court of Appeals for the Ninth Circuit; July 21, 2006; Federal Appellate Court
Under the Controlled Substances Act (CSA), it is illegal for any person to knowingly distribute controlled substances, with certain exceptions for registered practitioners such as physicians. However, practitioners can face criminal prosecution if their actions fall outside the bounds of professional practice. Dr. Jeffrey Feingold, a licensed naturopathic physician in Arizona, was convicted on 185 counts of illegally distributing controlled substances. He contends that his conviction is flawed due to the admission of improper testimony and erroneous jury instructions, arguing that the jury was allowed to convict him based on incompetence rather than criminal conduct. Additionally, he claims his sentence is invalid as it relied on facts not determined by the jury and because he was denied a two-level offense reduction. The court found Dr. Feingold's arguments unconvincing. However, it vacated his sentence and remanded for resentencing, referencing the precedent set in United States v. Beng-Salazar. Dr. Feingold had previously practiced in Philadelphia, moved to Arizona in 1990, and obtained DEA certification to prescribe controlled substances. His indictment stemmed from allegations that he misused his practitioner status to distribute drugs outside legitimate medical practice after a change in Arizona law regarding the prescribing of certain controlled substances. At trial, evidence was presented showing Dr. Feingold's significant violations of prescribing practices. Testimonies from multiple patients revealed he issued prescriptions without physical examinations or documented medical justifications, even to known recovering addicts. One instance involved Dr. Feingold trading prescriptions for home painting services. He continued to prescribe Schedule II narcotics despite Arizona revoking his authority to do so, and he often exceeded recommended dosages, such as providing 3,000 pills in one month to a single patient. He frequently prescribed multiple controlled substances with minimal time between refills and charged patients per prescription. Two undercover DEA agents also testified, confirming that Dr. Feingold issued prescriptions without proper examinations, including for Schedule II drugs after the prohibition. They mentioned he directed them to a specific pharmacy after others refused to fill his prescriptions. Additionally, two expert witnesses, Dr. Thomas Kruzel and Dr. Michael Ferrante, testified that Dr. Feingold's practices deviated significantly from professional standards. Dr. Kruzel characterized many prescriptions as "medically unnecessary" and noted his lack of adequate patient evaluations was atypical for naturopathic medicine. Dr. Ferrante corroborated that Dr. Feingold's record-keeping was insufficient and that his prescription practices were excessive and lacked legitimate medical purpose, specifically for the 185 prescriptions cited in the indictment. Dr. Feingold's defense included testimony from Dr. Michael Cronin, a naturopathic doctor, who initially asserted that Dr. Feingold's prescriptions served a legitimate medical purpose and were issued in good faith. However, during cross-examination, Dr. Cronin acknowledged that the volume and frequency of the prescriptions were likely "excessive" and not in line with standard medical practice. Dr. Feingold himself admitted to writing all prescriptions listed in the indictment and recognized that they were not for valid medical purposes, describing his practice as "incompetent" and acknowledging that his prescribing methods were outside of typical professional standards. He attributed his excessive prescribing to a lack of training in opioid management and claimed he genuinely believed his patients needed the medications. The district court instructed the jury that to convict Dr. Feingold under § 841(a), they must find beyond a reasonable doubt that he distributed a controlled substance knowingly and intentionally, and without a legitimate medical purpose. The court clarified that a practitioner could not be convicted for distributing controlled substances if done in good faith and within the regular course of practice. Good faith implies adherence to accepted medical standards, not just sincere intentions. The jury ultimately convicted Dr. Feingold on all 185 counts. The district court set the offense level at 32 based on the amount of drugs prescribed and Dr. Feingold's abuse of public trust, sentencing him to a total of 60 months for counts subject to statutory maximums, and 144 months for those under sentencing guidelines, with all sentences running concurrently. Dr. Feingold has appealed both his conviction and sentence. Dr. Feingold contends that the district court erred by allowing expert witnesses to testify about the standard of care for distributing opioids and other drugs, arguing that their testimony misled the jury into believing there was a consensus among medical professionals where none existed. He asserts that this testimony was irrelevant and prejudicial, leading to his conviction for criminal offenses when he should only be deemed a negligent doctor. The review of the district court's evidentiary rulings is for abuse of discretion. The court found the testimony relevant and admissible, stating that understanding the standard of care is crucial to determine if a practitioner's actions deviated significantly from accepted practices, thereby potentially rendering them criminal. Both the Supreme Court and the Ninth Circuit have permitted juries to consider prevailing medical standards in criminal prosecutions of licensed practitioners. The court emphasized that such evidence is necessary to assess whether a practitioner acted without legitimate medical purpose, differentiating between negligent practice and criminal conduct. Dr. Feingold also raised objections regarding jury instructions, which are reviewed for potential misstatement of crime elements. He argues that the instructions allowed for a conviction without adequately assessing his mens rea, claiming the jury needed to evaluate his intent to act outside professional practice. He believes the jury instructions failed to require this consideration, rendering his conviction invalid, referencing a precedent where inadequate jury instructions led to a reversal of a conviction. A practitioner can only be convicted under § 841(a) for distributing controlled substances outside the usual course of professional practice if it is proven that the actions were intentional. This principle aligns with the understanding that a crime requires intentionality, as established in case law, including Moore and Morissette. The jury must assess whether the practitioner prescribed substances for legitimate medical purposes or merely distributed them indiscriminately. To secure a conviction, the government must demonstrate three elements: (1) the practitioner distributed controlled substances, (2) this distribution was outside the usual course of practice and lacked a legitimate medical purpose, and (3) the practitioner intended to distribute the drugs in this unlawful manner. Dr. Feingold argues that the district court’s jury instructions did not adequately convey the necessity for a finding of intent regarding his actions. However, it is determined that the instructions did require the jury to find that he intentionally acted outside the usual course of professional practice, despite not using the term "intent" explicitly. The jury instructions should be evaluated as a cohesive whole rather than in isolation. The district court's supplemental jury instructions clarified that a practitioner cannot be convicted for unlawful distribution of controlled substances if the distribution occurs in good faith and within the regular course of professional practice. Good faith is defined as the practitioner's sincere attempt to adhere to widely accepted medical standards while treating a patient. The instructions emphasized Dr. Feingold's state of mind, indicating that the jury must assess whether he intended to distribute controlled substances for legitimate medical purposes and within the usual course of practice. Although the instructions could have explicitly stated that the government must prove beyond a reasonable doubt that Dr. Feingold intentionally acted outside legitimate medical purposes, the overall guidance was sufficient to direct the jury's consideration. The jury's verdict indicates a conclusion that Dr. Feingold did not meet the necessary standards. Furthermore, Dr. Feingold contended that the instructions improperly conflated the criminal liability standard under § 841(a) with civil malpractice standards by using "standard of care" as a benchmark. He argued that this allowed the jury to convict him based on negligence rather than intentional misconduct. The district court's instructions mandated that the jury find intentionality in Dr. Feingold's actions rather than simply a determination of malpractice. Although the court referenced a national standard of care, it required a finding that Dr. Feingold intentionally breached that standard. The appeal raises the critical issue of whether a conviction under 21 U.S.C. § 841(a) is valid if based solely on intentional malpractice, or if the jury must identify more severe misconduct. It questions whether a physician who knowingly deviates from established medical practices can still claim to be acting within the "usual course of professional practice," thus potentially avoiding criminal liability. Dr. Feingold contends that such a framework risks subjecting healthcare professionals to criminal prosecution simply for providing treatment that diverges from conventional methods, particularly if those treatments are deemed inappropriate by authorities. Notably, both the Supreme Court and this Circuit have upheld jury instructions referencing a national standard of care. Past cases, such as Moore, Boettjer, and Hayes, illustrate that it is acceptable for juries to evaluate a defendant's actions against recognized medical standards, emphasizing the importance of good faith and legitimate medical purpose in determining criminal liability. A district court risks improperly lowering the standard for criminal liability if it instructs the jury to consider whether a practitioner-defendant has complied with the standard of care. Previous cases have raised concerns about jury instructions regarding the standard of care; in *Hayes*, the court noted potential confusion in the instructions but affirmed the conviction, stating that the jury could not reasonably interpret the instructions as allowing a finding of guilt based merely on negligence. In *Boettjer*, the court found that jury instructions could suggest a conviction based solely on malpractice, which it deemed deficient and not a model for future cases. The Supreme Court's ruling in *Moore* highlighted that the defendant's actions transcended malpractice, likening them to those of a drug pusher, thus reinforcing that criminal liability under § 841(a) must be based on intentional distribution of controlled substances without legitimate medical purpose. An instruction is improper if it allows a conviction solely for malpractice. The proper standard requires proof that the practitioner intentionally distributed controlled substances outside the usual professional practice. The *Moore* decision supports this, indicating that the jury must find, beyond a reasonable doubt, that the practitioner acted outside the bounds of good faith and standard medical practice. Therefore, to avoid conviction, a practitioner must demonstrate compliance with accepted medical standards or legitimate medical purpose for prescriptions, aligning with federal regulations (21 C.F.R. § 1306.04). Criminal liability under § 841(a) requires proof beyond mere negligence or malpractice by a physician. Courts have established that to secure a conviction, it must be demonstrated that a doctor intentionally prescribed controlled substances for non-legitimate medical purposes, such as facilitating drug addiction or for personal profit. This standard is supported by case law, including rulings from various circuits that emphasize the necessity of showing that a physician's actions fall outside accepted medical practices. In assessing a physician's conduct, juries should evaluate it against the prevailing standards of acceptable medical practice. The district court has discretion in how to articulate this benchmark to the jury, but the instructions must not mislead by suggesting that merely breaching a standard of care suffices for a criminal conviction. In the case at hand, the jury instructions were found adequate, clearly stating that a physician cannot be convicted for distributing controlled substances in good faith and within the scope of professional practice. The court confirmed that the government must prove beyond a reasonable doubt that the defendant prescribed drugs for illegitimate purposes, thereby correctly outlining the standard for criminal liability. Any imprecision in the jury instructions regarding the standard for criminal liability in Dr. Feingold's case was deemed harmless beyond a reasonable doubt, following precedents such as Moore, Boettjer, and Hayes. The evidence against Dr. Feingold was described as overwhelming; he prescribed narcotics to known addicts and individuals he had never examined or met, including undercover law enforcement. His actions persisted even after Arizona prohibited naturopathic physicians from prescribing Schedule II narcotics, and local pharmacists refused to fill his prescriptions due to lack of authorization. The quantities prescribed posed significant health risks, as government experts indicated they could potentially be lethal or damaging to the liver. During his testimony, Dr. Feingold admitted his prescribing practices were "outside the course of professional practice," yet he claimed he was incompetent and genuinely trying to assist his patients without awareness of their drug abuse. The jury rejected this defense, affirming that Dr. Feingold acted intentionally outside professional norms, leading to the affirmation of his convictions. In relation to his 144-month sentence, Dr. Feingold raised multiple objections: he contended that the district court violated the Sixth Amendment by calculating his offense level based on judge-found facts, contrary to the ruling in United States v. Booker. He also argued that the court improperly denied a two-point reduction in his offense level under U.S.S.G. § 2D1.1(b)(7) and sought resentencing based on the erroneous belief that the sentencing guidelines were mandatory, as discussed in United States v. Beng-Salazar. Dr. Feingold's claim of constitutional error in his sentencing is rejected. The district court enhanced his sentence based on two factors: abuse of a public trust due to his role as a licensed naturopathic physician and the volume of drugs he distributed, both of which were admitted by Feingold and supported by the jury's verdict. His use of his medical credentials to distribute drugs constituted an abuse of trust as outlined in U.S.S.G. § 3B1.3. Furthermore, his admission of prescribing the alleged drug quantities justified the enhancement under U.S.S.G. § 2D1.1(c)(5). Consequently, the court found no violation of the Sixth Amendment since the enhancements were based on facts he acknowledged. Regarding his request for a sentence reduction under U.S.S.G. § 2D1.1(b)(6) (formerly (b)(7)), which applies to non-violent offenders meeting specific criteria, the court initially erred by asserting that the absence of a mandatory minimum disqualified him. However, it was noted that the reduction could be available regardless of a mandatory minimum, aligning with decisions from other circuits. Despite this, the district court cited an alternative reason for denying the reduction, stating that Feingold did not fulfill the requirement to provide truthful information to the government about his offense, as per U.S.S.G. § 5C1.2(a)(5). This factual determination was deemed not clearly erroneous, establishing that the district court's decision to deny the reduction remains valid. Factual determinations regarding a defendant's eligibility for the safety valve are subject to clear error review, as established in United States v. Ajugwo. The district court's decision to deny a two-point reduction is upheld, as any error about the absence of a mandatory minimum was deemed harmless. Dr. Feingold is entitled to resentencing under United States v. Beng-Salazar, which affirms that a defendant's objection based on Sixth Amendment rights preserves the claim for resentencing under advisory Guidelines. Although the government contends that a lengthy sentencing memorandum negates the need for remand, the lack of indication on how the district court would have ruled with advisory guidelines necessitates full resentencing. Consequently, Dr. Feingold's convictions are affirmed, his sentence vacated, and the case remanded for resentencing. Additionally, the excerpt addresses the standards of medical practice and the limits of federal authority regarding controlled substances. It clarifies that while the federal government can restrict treatment methods, it cannot unilaterally deem a medical standard illegitimate if authorized by state law. The Supreme Court's ruling in Moore allows for prosecution of practitioners who operate outside recognized professional practice, emphasizing the need for consensus within the medical community. The district court's jury instructions regarding the standard of medical practice were deemed appropriate in context, even if broadly defined, as they included protections for good faith medical treatment and legitimate purposes in prescribing controlled substances.