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NORMAN J CLEMENT RPH., DDS, NORMAN L.CLEMENT PHARM-TECH, MALACHI F. MACKANDAL PHARMD, BELINDA BROWN-PARKER, IN THE SPIRIT OF JOSEPH SOLVO ESQ., INC.T. SPIRIT OF REV. C.T. VIVIAN, JELANI ZIMBABWE CLEMENT, BS., MBA., IN THE SPIRIT OF THE HON. PATRICE LUMUMBA, IN THE SPIRIT OF ERLIN CLEMENT SR., WALTER F. WRENN III., MD., JULIE KILLINGWORTH, LESLY POMPY MD., CHRISTOPHER RUSSO, MD., NANCY SEEFELDT, WILLIE GUINYARD BS., JOSEPH WEBSTER MD., MBA, BEVERLY C. PRINCE MD., FACS., NEIL ARNAND, MD., RICHARD KAUL, MD., LEROY BAYLOR, JAY K. JOSHI MD., MBA, ADRIENNE EDMUNDSON, ESTER HYATT PH.D., WALTER L. SMITH BS., IN THE SPIRIT OF BRAHM FISHER ESQ., MICHELE ALEXANDER MD., CUDJOE WILDING BS, MARTIN NJOKU, BS., RPH., IN THE SPIRIT OF DEBRA LYNN SHEPHERD, BERES E. MUSCHETT, STRATEGIC ADVISORS
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UNITED STATES MOTION DISMISSED INDICTMENT BASED ON 9-0 SUPREME COURT RULING IN RUAN-KHAN
UNITED STATES’ MOTION TO DISMISS INDICTMENT
The United States of America, pursuant to Federal Rule of Criminal Procedure Rule 48(a), respectfully moves this Court to dismiss the Indictment, returned June 17, 2020, in the above-styled case without prejudice. Such action would best meet the ends of justice for the following reasons:
1. On June 17, 2020, a federal grand jury issued an Indictment charging Defendant Donald Hyungjoon Kim, M.D. with 154 counts of distributing controlled substances outside the usual course of medical practice and without medical necessity to include 3 counts of distribution with death resulting. (Doc. 1.)
MUST PROVE BEYOND THE REASONABLE DOUBT
2. On June 27, 2022, the Supreme Court issued its opinion in Ruan v. United States, — U.S. —-, 142 S.Ct. 2370 (2022). In Ruan, the Supreme Court held that the government must “prov[e] that a defendant knew or intended that his or her conduct was unauthorized,” which inserted a mens rea requirement that had not previously been recognized. Id. at 2382; see United States v. Khan, 989 F.3d 806, 825 (10th Cir. 2021),
Case 5:20-cr-00163-PRW Document 53 Filed 07/29/22 Page 2 of 3
vacated and remanded by Ruan, 142 S.Ct. 2370 (holding that “§841(a)(1) and § 1306.04(a) require the government to provide that a practitioner-defendant either: (1) subjectively knew a prescription was issued not for a legitimate medical purpose; or (2) issued a prescription that was objectively not in the usual course of professional practice”).
INDICTMENT WAS DEFECTIVE
3. Based on this intervening Supreme Court ruling, the United States has concluded that the Indictment is defective. As such, the government believes that the ends of justice would best be served by dismissing, without prejudice, the Indictment in this case.
WHEREFORE, the United States requests that this Court enter an Order dismissing, without prejudice, the Indictment filed herein on June 17, 2020.
ROBERT J. TROESTER United States Attorney
Mr. Silverglate, a Boston criminal-defense and civil-liberties litigator, is the author of “Three Felonies a Day: How the Feds Target the Innocent” (Encounter, second edition 2011).
June 12, 2015, 6:42 pm ET
WHEN TREATING PAIN BRINGS A CRIMINAL INDICTMENT
” Federal drug-enforcement officials have made it a serious felony for doctors to overprescribe painkillers or, as the applicable law states, to prescribe controlled substances “other than for a legitimate medical purpose and in the usual course of professional practice.”
But the line between legitimate and illegitimate prescription—as drawn by the Drug Enforcement Administration (DEA) and the Justice Department—is far from clear. This puts physicians in great legal jeopardy and too often leaves their patients to suffer needless agony.
The Hidden mantra of the DOJ and DEA
“The atmosphere around prescribing for chronic pain had become so fraught that physicians felt they must avoid opioid analgesics even in cases when it contradicted their view of what would provide the best care for their patients.
In some cases, this desire to reduce opioid prescribing translated to doctors tapering patients off their medications without patient consent. In other words, it meant that physicians would no longer accept patients who had a history of needing high-dose opioids.”
THE RULE OF LAW
The Rule of law is the most fundamental concept of our country without it our society crumbles which then allows for an agency to take anything they want unchecked based on their own manufactured rules and misinterpretation of laws, medical procedures guidelines. Thus creating their own science and facts.
In healthcare the great fear at the moment is the DEA operates unchecked as a rogue sub agency of government operating outside the rule of law creating their medical science.
Ruan provides: “ A strong scienter requirement helps reduce the risk of “over-deterrence,” i.e., punishing conduct that lies close to, but on the permissible side of, the criminal line.” An objective standard of care was not proven. The indictment used the improper evidentiary standard.”
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FOR NOW, YOU ARE WITHIN
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