THE APPELLANT (NORMAN J CLEMENT, pro-se) IS A PHARMACIST, NOT A STREET DRUG DRUG DEALER

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

Norman Clement, pro-se

Petitioner

Case: No. 21-1262

Drug Enforcement Administration,

Respondent

_____________________________

Pronto Pharmacy LLC, Plaintiff, v. Drug Enforcement

Administration, Defendant
United States Court of Appeals District of Columbia No.:

21-1242

APPENDIX

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

THE UNITED STATES OF AMERICA, )

Plaintiff, ) ) -vs- ) )

DONALD HYUNGJOON KIM, M.D., ) ) Defendant. )

No. CR-20-163-PRW

UNITED STATES’ MOTION TO DISMISS INDICTMENT

CASE SUMMARY

The United States of America, pursuant to Federal Rule of Criminal Procedure Rule 48(a), respectfully moves this Court to dismiss the Indictment, returned on June 17, 2020, in the above-styled case without prejudice based on June 27, 2022, the Supreme Court issued its opinion in Ruan v. United States, — U.S. —-, 142 S.Ct. 2370 (2022).

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MOTION FOR A REHEARING UNDER FEDERAL RULES OF APPELLATE PROCEDURE, RULE 35

The Appellant moves, pro se, to submit this further SUPPLEMENT TO HIS Petition request under Rule 35 before the entire Panel for Rehearing En Banc from a May 25, 2022 decision, barring a summary reversal of the DEA Administrative court and further based on the United States Supreme Court ruling in Ruan-Khan vs. the United States case: No- 20-1410.

STATEMENT AT ISSUE

The Appellant is a Pharmacist, Not a Street Drug Dealer. On June 27, 2022, in a separate and related case ruling 9-0 of the United States Supreme Court, Justice Stephen Breyer, in summary, wrote (Ruan v. the United States, 597 U.S. 20-1410 (2022) for the majority that prosecutors must prove that doctors knew they were illegally prescribing powerful pain drugs in violation of the federal Controlled Substances Act once a doctor proves that they are authorized to prescribe a controlled substance (e.g., has state & federal registration), the government must PROVE BEYOND A REASONABLE DOUBT.

DEA RAID ON PRONTO PHARMACY

FACTUAL BACKGROUND

On August 29, 2019, in the city of Tampa, Florida, Hillsborough County, Pronto Pharmacy 86 FR 647,14 (2021) was raided by DEA agents. Norman Clement was acting in the capacity of a licensed’s pharmacist. Whereby a Pharmacist is a person who is professionally qualified to prepare and dispense medicinal drugs. This definition and is a statute within the Florida Administrative Code & Florida Administrative Register.

I. UNITED STATES DISMISSED INDICTMENT

Abuse of discretion is a standard by which appellate courts review certain decisions by lower courts. The standard is used when the appellate court reviews a “discretionary” ruling of the lower court judge or administrative agencies. The “red flag” standard is not a medical standard but a law enforcement term essentially made up by the DEA and its prior decisions. This is important because a pharmacy should only be disciplined for failing to adhere to its “corresponding responsibility” found in 21 C.F.R. 1306.04 – the regulation in the recent Supreme Court ruling in Ruan v. United States.

ISSUE

On June 17, 2020, a federal grand jury issued an Indictment charging Defendant Donald Hyungjoon Kim, M.D. with 154 (see Case 5:20-cr-00163-PRW Document 53 Filed 07/29/22 Page 2 of 3) counts of distributing controlled substances outside the usual course of medical practice and without medical necessity to include three counts of distribution with death resulting § 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”).

RULE

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), 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”).

ANALYSIS

Pronto Pharmacy LLC; see Decision and Order, Fed. Reg.86 FR 64714 (2021), the discretion of the DEA Administrative Court was not justified by the evidence and was based exclusively on speculation. No finding of actual drug diversion was proven or found. No manufacturing of drugs occurred or proved beyond the reasonable doubt that both Pronto Pharmacy, its owner Norman J Clement 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.”

CONCLUSION

The case against DONALD HYUNGJOON KIM, M.D. /No. CR-20-163-PRW is on point with Pronto Pharmacy LLC because a pharmacy should only be disciplined for failure to adhere to its “corresponding responsibility” found in 21 C.F.R. 1306.04 – the regulation at issue in the recent Supreme Court ruling in Ruan v. United States 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.”

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APPENDIX

Case 5:20-cr-00163-PRW Document 53 Filed 07/29/22 Page 2 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

UNITED STATES OF AMERICA, )

Plaintiff, ) ) -vs- ) )

DONALD HYUNGJOON KIM, M.D., ) ) Defendant. )

No. CR-20-163-PRW

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.)

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),

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”).

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.

Respectfully submitted,

ROBERT J. TROESTER United States Attorney

s/ Matthew P. Anderson

MATTHEW P. ANDERSON
OK Bar No. 30472
Assistant U.S. Attorney 210 Park Avenue, Suite 400 Oklahoma City, Oklahoma 73102 (405) 553-8700 (Office)

(405) 553-8888 (Fax) matthew.anderson2@usdoj.gov

CHRISTINE PAYLAN MD., PHYSICIAN AGAINST ABUSE

CONCLUSION

The Appellant is a licensed pharmacist engaged in the practice of pharmacy filling prescriptions for legitimate medical use authorized by medical/dental providers’ license and authorized to treat patients. thus demands that the Court vacates the Order of Revocation of Pronto’s Pharmacy DEA registration. In the alternative, remand the case back to the trial court for adjudication under the proper evidentiary standard.

WHEREFORE, WE DEMAND UPON THIS COURT:

Grant this motion and reverse these findings and decision of the Administrative Court, return and restore all privileges of the DEA Control Registration Certificates of Pronto Pharmacy LLC.
Further, Dismiss the Decision of the Administrative Judge Mark Dowd in agency case No: 19-42, Federal Registry filed 1927282 on December 20, 2021with extreme prejudice.
Return all Files, Equipment, and Medication to Pronto Pharmacy Llc and its owner Norman J Clement of Tampa, Florida.
The Court must send a clear and strong message in its final order to the deliberate misguided actions of the DEA. We, therefore, Amend the Reward damages and penalties of amounts greater than $8.7 billion U.S. dollars.

“NOW WE ARE FREE”