*SMCS: SUBJECT MATTER COCK SUCKERS: A GOVERNMENT EXPERT USED IN DOJ-DEA HEALTHCARE INDICTMENTS WHO WILL DO AND SAY ANYTHING FOR A DOLLAR
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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. IN THE SPIRIT OF WALTER R. CLEMENT BS., MS, MBA. HARVEY JENKINS MD, PH.D., 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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Excerpts: Why Should the Supreme Court Take This Case
By Xiulu Ruan, MD, December 25, 2020
The article was republished in the online magazine “Daily Remedy.” on the making of historic Ruan-Khan vs. the United States.”
QUESTIONING THE CREDIBILITY OF GOVERNMENT EXPERT WITNESSES
“Under the CSA, it is unlawful for “any person” knowingly and intentionally to distribute or dispense a controlled substance. 21 U.S.C.S. Subsection 841(a). Although the CSA makes exceptions to this prohibition for certain individuals who are registered as “practitioners” under the Act, such as physicians and pharmacists, this Court has held that these practitioners are still subject to criminal prosecution “when their activities fall outside the usual course of professional practice.” United States v. Moore (1975), 423 U.S. 122, 124, 96 S. Ct. 335, 46 L. Ed. 2d 333.
In Moore, the defendant, Dr. Moore, a physician, was convicted of violating 21 U.S.C.S. Subsection 841(a)(1) for prescribing large quantities of methadone to drug addicts and charging sliding scale fees based on the amount of methadone prescribed. The Court explained that even though the physician could be prosecuted for the relatively minor offense relating to issuing of prescriptions in violation of Subsection 829, he was not exempted from prosecution under Subsection 841(a)(1) for the significantly greater offense of acting as a drug “dealer.”
CSA, however, does not define what the “outside the usual course of professional practice” is. In fact CSA text does not even contain this term. CSA convictions rely on relevant regulations such as 21 C.F.R. Subsection 1306.04. In our case, United States v. Ruan, 966 F.3d 1101; 2020 U.S. App. LEXIS 21367 (11th Cir. 2020}, the Eleventh Circuit stated that “such prescriptions are only lawful if they are issued for a legitimate medical purpose in the usua1 course of the licensed healthcare professional’s professional practice.” (See 21 C.F.R. Subsection 1306.04) (Id., at 8)
Confusion and Vagueness
Thus, the Eleventh Circuit explicitly expressed that the “usual course of professional practice” referred to should be of that Individual practitioner’s “usual course- of professional practice,” not someone else’s. Reasoning along this line, my “usual course of professional practice” as a well-trained board-certified interventional pain specialist ought to be different from that of government expert witnesses, such as Drs. David Greenberg and Tricia Aultman because they were not pain management specialists. (Discussed later.)
Confusion and Vagueness of 21 C.F.R. Subsection 1306.04 and Why the Court Should Take the Instant Case In United States v. Davis (2019), 139 S. Ct. 2319; 204 L. Ed. 2d 757; 2019 U.S. LEXIS 4210, the Court held:
“(W]hen congress passes a vague law, the role of courts under the Constitution is not to fashion a new, clearer law to take its place, but to treat the law as a nullity and invite the Congress to try again…The doctrine prohibiting vague laws rests on the twin constitutional pillars of due process and separation of powers.”
“Vague laws contravene the first essential due process of law that statutes must give people of common intelligence fair notice of what the law demands of them…Vague statutes threaten to hand responsibility for defining crimes to relatively unaccountable police, prosecutors, and judges, eroding the people’s ability to oversee the creation of laws they are expected to abide.” (Id., at 766)
Lack of Statutory Definition of “Usual Course of Professional Practice” and “Legitimate Medical Purpose” and Conflicting Interpretation by the Fifth and Eleventh Circuits and District Courts
Neither “usual course of professional practice” nor “legitimate medical purpose” has any statutory definition. As mentioned before, CSA convictions rely on the languages used in related regulations, namely 21 C.F.R. Subsection 1306.04.
Unfortunately, this statute does not define these terms either. It is not even clear whether Subsection 1306.04 treated these terms as one element, i.e. “legitimate medical purpose,” or two elements, i.e., “legitimate medical purpose” and usual course of professional practice.” Most appellate courts and district courts interpreted Subsection 1306.04 as having two elements, but the Fifth Circuit, the predecessor of the Eleventh Circuit, held differently. (See below.)
actice. 383 F.3d at 1231″‘
In United States v. Armstrong, 550 F.3d 382; 2008 U.S. App. LEXIS 25289 (5th Cir. 2008), the Fifth Circuit noted that the two clauses “legitimate medical purpose” and “usual course of professional practice” are often used interchangeably. (Id., at 395) It further acknowledged that “for other than legitimate medical purpose” places a heavier burden on the government than otherwise required to establish criminal liability than “outside the usual course of professional practice.” United States v. Mciver, 479 F.3d 550, 559 (4th Cir. 2006) (citing United States v. Alerre, 430 F.3d 681, 690-91 (4th Cir. 2005).
In our case, United States v. Couch, 2016 U.S. Dist. LEXIS 177947 (S.D. AL, 2016), Judge Granade denied our motions asking for dismissing some of the counts relating to CSA violations in the Second Indictment, where the vagueness of Subsection 841 (a)(1) and Subsection 846 was raised. In that motion, we specifically challenged the vagueness of the language “legitimate medical purpose” and “usual course of professional practice.” In denying our motion, Judge Granade stated:
“No case law is before the Court suggesting that courts have grappled with what qualifies as “not for a legitimate medical purpose” or “outside the usual course of professional practice.” Instead, cases have repeatedly upheld convictions for physicians who abused their exemption under the CSA.” (Id., at 4)
However, based on the widespread and long-standing history of the misinterpretation of 21 C.F.R. 1306.04 shown above, Judge Granade’s foregoing statement is inaccurate. Furthermore, the touted success of guilty convictions and affirmations based on the inconsistent and even contradictory interpretation and application of law runs afoul of the constitutional rights of the accused and renders the trial and appellate criminal proceedings fundamentally unfair.
The Court should take the instant case to revisit these discrepancies in the interpretation of 21 C.F.R. 1306.04 in CSA convictions and exercise its supervisory power to clarify and correct them for the lower courts so as to set a uniform standard in interpreting and applying this confusing federal law. This is the first reason that the Court should take the instant case.
The Prosecutor’s Concession of Our “Legitimate Medical Purpose” and Why My Convictions Should Be Reversed
On the aforementioned basis, namely that “not for a legitimate medical purpose” and “outside the usual course of professional practice” are used interchangeably and that the former is even considered a heavier burden than the latter, my convictions, then, require reversal because the prosecution had squarely conceded that we prescribed controlled medications for a legitimate purpose. Recall that, in his opening statement, Mr. Bodnar stated:
‘There were definitely some that were treated very appropriately …there were instances where Dr. Ruan and Dr. Couch did really a good job for their patients…And opioids…for people with legitimate pain is in most cases for a legitimate medical purpose. But there has to be the second prong, was it also in the usual course of professional practice[?]” (Tr. 1/5/17, p. 46)
When Mr. Bodnar stated, “But there has to be the second prong…,” he implied that we had passed the first prong, namely “for a legitimate medical purpose.” Pursuant to the aforementioned criteria, we should never have been convicted for CSA violations. On the other hand, the Eleventh Circuit in its ruling of our direct appeal, cited that we acted “not for a legitimate medical purpose” or it’s equivalent more than 20 times. The Eleventh Circuit’s opinion was at odds with the trial evidence presented because our trial could not have presented evidence consistent with our practice acting “not for a legitimate medical purpose,” as Mr. Bodnar had conceded this in his opening statement.
Trial Court Provided Erroneous Jury Instruction Respecting the Crime Element and Tailored Its Jury Instruction to the Prosecutor’s Opening Statement
MISUSE OF THE DEA-DOJ’S SMCS*
*SMCS: SUBJECT MATTER COCK SUCKERS: A GOVERNMENT EXPERT USED IN DOJ-DEA HEALTHCARE INDICTMENTS WHO WILL DO AND SAY ANYTHING FOR A DOLLAR
The Moore Case Law Should Not Apply to My Case
Dr. Moore was convicted of violating 21 U.S.C.S. Subsection 841(a)(1) for allegedly prescribing large quantities of methadone to treat heroine addicts and charged sliding-scale fees based on the amount of methadone prescribed. In Moore, the government’s position was that Dr. Moore’s conduct was inconsistent with all accepted methods of treating addicts, i.e. he In fact operated as a drug “pusher.” The narrow sets of facts In Moore, according to this Court, determined that Dr. Moore was prosecuted under the steeper Subsection 841(a)(1), rather than Subsection 829.
Our case, however, is way different. Both defendants were fellowship-trained, multi-board certified interventional pain management physicians who had provided multidisciplinary pain management to patients suffering from chronic pain. There is a material difference between our case and Moore’s. There was ample evidence showing that PPSA utilized a multi-disciplinary approach in treating chronic pain. For example, my expert witness Dr. Jeff Gudin [fellowship-trained and quadruple-board certified in anesthesia, pain management, addiction medicine, and hospice and palliative care medicine (Tr. 2/10/17, p. 5159- 10)] testified:
“There wasn’t a single chart of Dr. Ruan’s I reviewed that did not include what we call in the pain field multimodal techniques. That means Dr. Ruan tried everything at hand…physical therapy and behavior therapy, injections…medicine that had nothing to do with opioids… So every chart contained numerous attempts at finding treatment other than opioids to manage the pain.” (Id., p. 5127-28)
Dr. Christopher Gharibo [fellowship-trained and double-boarded in anesthesia and pain management and also an Associate Professor of Anesthesiology and Orthopedics at the New York School of Medicine (Tr. 2/15/17, p. 5932-33)] testified:
“I found Dr. Ruan’s treatment in many ways exemplary…lt was quite impressive and exemplary treatment…that’s evidence of somebody who is highly skilled…Dr. Ruan engaged in more advanced interventional therapies…encouraged them to have a drug delivery system implanted…where you can cut down the overall dosing…by a factor of 100 to 200” (Id., p. 5944-45).
Dr. Gharibo was appreciative that we made use of spinal infusion pumps in selected patients so as to cut down the overall opioid dosage patients received “by a factor of 100 to 200.” Dr. Gharibo also testified that, “Dr. Ruan’s care was clearly mufti modal and multi-disciplinary that it was clearly in the higher end of the standard of care.” (Id., p. 5945)
Dr. Couch’s expert witness, Professor Carol Warfield [a world-renowned pain management expert, the Lowenstein Distinguished Professor of Anesthesia at Harvard Medical School under whom the pain management clinic of Beth Israel Hospital of Harvard Medical School was named (Tr. 2/8/17, p. 4661)] testified that Dr. Couch “used a number of nonopioid medications … lots of nerve blocks…various treatments in addition to opioids.” (ld., p. 4667.) She also opined: “[T]here were also a number of other treatments, which is very typical of a pain management center a combination of nerve blocks, epidural steroid injection, other type of medications along with opioids.” (Id., p. 4669)
*SMCS: SUBJECT MATTER COCK SUCKERS: A GOVERNMENT EXPERT USED IN DOJ-DEA HEALTHCARE INDICTMENTS WHO WILL DO AND SAY ANYTHING FOR A DOLLAR
Based on the above testimony, PPSA was completely distinguishable from Moore. The specific set of facts in Moore were lacking in our case, we should not have been indicted under CSA 841(a)(1), let alone being so convicted and affirmed by the Eleventh Circuit.
Moore’s “Outside the Usual Course of Professional Practice” Is Pliable and Insidious
Since there is no statutory definition of “outside the usual course of professional practice,” the prosecution can easily manipulate this standard. On the one hand, it sounds benign or harmless on its face, but that is only a misconception. When this Court used the term “outside the usual course of professional practice” to prosecute Dr. Moore 45 years ago, it represented an element of crime used to penalize drug dealers and drug kingpins. It was based on a narrow set of facts. Dr. Moore allegedly prescribed large quantities of methadone to drug addicts and charged sliding-scale fees based on the amount of methadone prescribed, i.e., Dr. Moore allegedly acted as a drug “pusher.” In other courts, “outside the usual course of professional practice,” unlike other crimes such as murder, rape, or bank robbery, with which the jurors are a lot more familiar, few jurors can truly appreciate the gravity of this term.
When courts used “outside the usual course of professional practice” to explain the criminal liability standard, namely “outside the usual course of professional practice,” the entire reasoning was circular, which would not help the jury to understand what exactly the criminal liability standard meant.
Most significantly at my trial, Moore’s language “outside the usual course of professional practice” was used equivocally to the disadvantage of the defendants. The vagueness of this term allows government experts to say whatever they are paid to say. The prosecutorial strategy was to have the jury hear this term as often as possible. For example, in the direct examination Dr. David Greenberg alone. The jury heard the “usual course of professional practice” more than 70 times (Tr. 1/12/17, p. 578-93).
Government’s Expert Testimony of My “Outside the Usual Course of Professional Practice” Was Unreliable
The prosecutors clearly knew the specific qualifications required for being a pain management specialist because they correctly placed the Pain Physician Criteria (PPC) in our First Superseding Indictment, which states:
BOTH GREENBERG AND AULTMAN MORE THAN DEMONSTRATES THE ROLE AND THE USE BY DOJ-DEA OF A SUBJECT MATTER COCKSUKERS (SMCS)
“The discipline of pain medicine is an accepted and recognized medical subspecialty…Legitimate and qualified medical experts have specialized knowledge, education, training, and experience and utilize a multi-disciplinary approach…is recognized by state regulatory boards as a subspecialty of anesthesiology, physical medicine and rehabilitation, neurology, and psychiatry, which are recognized as primary specialties… Fellowship training programs exist for purpose of further education in the subspecialty of pain medicine, making graduates eligible for board certification in pain medicine.” (1st Superseding Indictment, p. 1)
Based on the PPG, neither Dr. Aultman nor Dr. Greenberg wasn’t even board-eligible. Dr. Aultman completed a residency in internal medicine, not in one of the four primary specialties listed above. She worked as a hospitalist in a local Hospital (Tr. 2/6/17, p. 4225). Dr. Greenberg had not undergone residency training in any specialty.
An irony appearing in Dr. Aultman’s resume (provided by the government) is that she listed a detailed section called “DEA Experience,” which stood out, spanning from page 1 to page 2 of a loosely typed 2-page document. Unlike other physicians who would provide their special expertise, board certifications, academic affiliations, and clinical publications, Dr. Aultman’s CV provided something like this:
DEA EXPERIENCE
Dr. Aultman’s DEA experience became her marketable expertise, and she actually bragged about her success in the prosecution of other healthcare professionals as if she were a prosecutor. On this basis, her “expert testimony” would always be biased and prejudicial. She had pocketed huge sums of money from DOJ/DEA, over $325,000 (Tr. 2/6/17, p. 4406). Ironically, the money Dr. Aultman brought in matched the amount that Dr. Greenberg had collected working for DOJ/DEA, $320,000 (Tr. 1/23/17, p. 801-02).
The prosecutors retained Drs. Greenberg and Aultman because they would be willing to say whatever was needed as long as they got paid.
Both the District Court and the Eleventh Circuit Heavily Relied on Dr. Greenberg’s Testimony to Secure and Sustain My Convictions
Dr. Greenberg was the leading government expert witness. He was on the witness stand for two full days (Tr. 2/16/17, p. 6024). He reviewed 20 PPSA patient files (Tr. 1/12/17, p. 591). He was the only government expert who had reviewed five patients of mine that carried substantive drug counts, namely Diane Greathouse, Kimberly Lowe, Erick Gist, Deborah Walker, and John Bosarge (Count 8, 9, 10. 11, and 12, respectively). The trial record dedicated to Dr. Greenberg’s testimony was just shy of 400 pages (Tr. 1/12/17, p. 556-719 and Tr. 1/13/17, p. 734-956).
Dr. Greenberg’s testimony was central to securing and sustaining my convictions. His testimony was repeatedly referenced in the government’s brief by the DOJ Appellate Attorney, Sonja M. Ralston (dated October 221 2018); it was cited 78 times (61 times in the text and 17 times in the footnotes). In its decision on my direct appeal.(United States v. Ruan, 966 F. 3d 1011; 2020 U.S. App. LEXIS 21367) (11th Cir. 2020), the Eleventh Circuit extensively cited Dr. Greenberg’s testimony in the Section of Discussion of Sufficiency relating to my substantive drug dispensing Counts 8, 9, 11, and 12, filling more than a dozen pages of the record (Id., at 49-63).
THE PURPOSE OF A SMCS
Dr. Greenberg Was Unqualified as a Pain Expert, and His Testimony Was Unreliable
Dr. Greenberg admitted twice in his direct testimony that he did not have any residency training (Tr. 1/12/17, p. 563; Id., p. 564); yet, on cross-examination, he claimed he had done some pain procedures in his “residency.” (Tr. 1/13/17, p. 903). He admitted he was not board certified in pain medicine or pain management (Id., p. 784). He admitted that he .did not treat lower back pain or phantom limb pain (Id., p. 801). He also admitted that he had received about $320,000 for working for the DOJ/DEA as witness or consultant (Id.. p. 801). In addition, he admitted that he lied under oath when he testified in a State Court in Arizona in 2012 (Id., p. 848-49), and that he lied under oath in the instant trial (Id., p. 858). After completing his testimony, he told the prosecutors that he was just diagnosed to have dementia (Tr. 1/17/17, p. 965). Most remarkably, he told the prosecutors himself that he was unreliable and his facts were unreliable (Id., p. 964).
FOR NOW, YOU ARE WITHIN
THE NORMS
