United States v. Lamartiniere
In United States v. Lamartiniere, —- F.4th —-, No. 23-30191 (5th Cir. May 6, 2024), the Fifth Circuit affirmed the defendant doctor’s 20 convictions for unlawful distribution of controlled substances under 21 U.S.C. § 841(a)(1), finding that the Government had presented sufficient evidence to support his convictions.
Background: Dr. Randy Lamartiniere had been a practicing, licensed physician specializing in internal medicine for 30 years. In 2013, he began to see a growing number of chronic pain patients, and his employer developed “concerns about Lamartiniere’s management of opioid and narcotic prescriptions and his inability to timely maintain his patient records.” At the end of 2014, they fired Lamartiniere, who then opened his own practice.
At the new practice, Lamartiniere’s patients paid a membership fee, and he accepted neither insurance nor Medicaid. In the first year of business, Lamartiniere had 200 to 250 patients, 80% of whom were being seen for pain management. Shortly after the practice opened, the DEA began investigating it based on a tip from a confidential informant. Undercover agents visited Lamartiniere’s practice nine times and always left with a prescription for a controlled substance.
At trial, the undercover agents, expert witnesses, and Lamartiniere’s former patients testified. To summarize, Lamartiniere may have been quick to prescribe hydrocodone, oxymorphone, and other pain medicines; but witnesses also suggested that he would at times push back and emphasize the need to follow the law regarding prescription medications. Nevertheless, he kept prescribing the medications even when patients didn’t follow his instructions. For instance, Lamartiniere told one of the undercover agents that his injury was “really not something … [that] any doctor should prescribe a … major narcotic [for,] at least up front,” yet the agent left the appointment with a prescription for 45 hydrocodone tablets.
The Government’s expert witnesses said that Lamartiniere’s “response to obvious signs of drug abuse in his patients fell outside the standard of care,” with one testifying that Lamartiniere seemed overly trusting of his patients and had a hard time telling persistent patients “no.”
Lamartiniere testified in his own defense, arguing that each of his patients had “legitimate medical conditions” and that he “believed they were in legitimate pain and that the prescriptions were for legitimate medical purposes.” Nevertheless, the jury convicted him of 20 of the 28 counts of unlawful distribution of controlled substances.
Issue 1: Lamartiniere argued that the jury was incorrectly instructed on the authorization and mens rea elements in 21 U.S.C. § 841(a)(1). Under that statute, the Government must prove four elements: (1) “that the Defendant dispensed a controlled substance;” (2) “that the Defendant dispensed the controlled substance knowingly or intentionally;” (3) “that the Defendant’s dispensation of the charged controlled substance was not authorized;” and (4) “that the Defendant knew he was acting in an unauthorized manner when he dispensed the controlled substance or intended to act in an unauthorized manner.”
For the third element, it is unlawful “except as authorized” to distribute or dispense controlled substances, and registered medical practitioners are, under 21 U.S.C. § 822(b), authorized to possess, manufacture, distribute, or dispense” controlled substances “to the extent authorized by their registration and in conformity with the other provisions” of the Controlled Substances Act (“CSA”). Beyond that, a regulation promulgated by the Attorney General (21 C.F.R. § 1306.04(a)) declares a prescription authorized if it is “issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice.”
Lamartiniere argued that the district court should not have instructed the jury on that regulation but should, instead, have defined “authorization” solely based on whether a prescription serves a legitimate medical purpose — not whether it is outside the course of professional practice. But that argument is foreclosed in the Fifth Circuit. See United States v. Armstrong, 550 F.3d 382 (5th Cir. 2008). A prescription is not authorized if it “either lacks a legitimate purpose or is outside the usual course of professional practice.” Id. at 397.
Issue 2: Lamartiniere challenged the district court’s instruction on the state-licensing requirement to prescribe controlled substances. This instruction was also based on a regulation, 21 C.F.R. § 1306.03(a), which says that “A prescription for a controlled substance may be issued only by an individual practitioner who is: (1) Authorized to prescribe controlled substances by the jurisdiction in which he is licensed to practice his profession and (2) Either registered or exempted from registration pursuant to §§ 1301.22(c) and 1301.23 of this chapter.”
Lamartiniere argued that this instruction allowed the jury to find him strictly liable for all prescriptions he wrote after the Medical Board had suspended his license, even though he had a valid DEA license to distribute controlled substances. The Fifth Circuit disagreed, finding that the jury instructions, taken as a whole, permitted the jury to consider the suspended license, but they did not allow jurors to convict solely based on that suspension.
Issue 3: Lamartiniere challenged the district court’s mens rea instructions as well. The court informed the jury that the Government needed to prove “that the Defendant knew he was acting in an unauthorized manner when he dispensed the controlled substance or intended to act in an unauthorized manner,” instead of Lamartiniere’s proposed language that “the defendant knew or intended that his conduct was unauthorized.”
Lamartiniere argued for a distinction between knowingly acting in an unauthorized manner and knowing that a prescription is unauthorized. But Lamartiniere did not raise that argument at trial, and either way, the jury instruction’s language came straight from the Supreme Court’s decision in Ruan v. United States, 597 U.S. 450, 457 (2022).
Beyond that, Lamartiniere argued that the district court incorrectly defined the mens rea element. The court had told the jury that “knowingly issuing a prescription outside the course of professional practice is a sufficient condition to convict a medical practitioner of unlawful dispensation of a controlled substance” and “[l]ikewise, knowingly issuing a prescription without a legitimate medical purpose is a sufficient condition to convict a medical practitioner of unlawful dispensation of a controlled substance.”
Lamartiniere contended that a knowing violation of 21 C.F.R. § 1306.04(a) is circumstantial evidence that a defendant knew his conduct was outside the scope of his authorization, but it was not dispositive. Per Ruan, the Government is required to prove “that a defendant knew or intended that his or her conduct was unauthorized.” The Court overruled lower court decisions that had instead permitted the Government to prove that a physician “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.”
The Fifth Circuit found no error in this case because “a defendant can be convicted either for knowing prescriptions were issued for an illegitimate purpose or knowing they were dispensed outside the usual course of professional practice.” At a minimum, the jury instruction required the jury to find that Lamartiniere “knew he was acting in an unauthorized manner when he dispensed the controlled substances.” The instructions “properly focused on Lamartiniere’s subjective intent” while also recognizing that the jury could measure his beliefs against objective criteria.
Finally, the Fifth Circuit rejected Lamartiniere’s challenge to the district court’s good-faith instruction, which instructed jurors that a controlled substance is authorized if it is “prescribed by [a physician] in good faith,” which means a physician’s “honest effort to prescribe for a patient’s condition in accordance with standards of medical practice generally recognized or accepted in the United States.” That was acceptable because it did not include phrases like “objectively reasonable good-faith effort” or “what a reasonable physician should belief,” and it defined good faith in terms of the defendant’s subjective belief by using the phrase “honest effort.”
Issue 4: The district court did not err by giving the jury a deliberate ignorance instruction. Admittedly, the Fifth Circuit has “often cautioned” against the use of such instructions, which are inappropriate when the Government’s case focuses on the defendant’s actual knowledge.
Here, “it was arguably an error” to give the deliberate ignorance instruction, in light of the Government’s clear argument that Lamartiniere “knew what he was doing was wrong,” but any error would be harmless in light of the “ample evidence at trial that Lamartiniere had actual knowledge that his prescriptions were unauthorized.”
Issue 5: Along those lines, there was sufficient evidence to support each of Lamartiniere’s 20 convictions. The evidence showed that he wrote prescriptions “despite knowing that his state license was partially suspended and that such a suspension prohibited him from prescribing controlled substances.” Moreover, “the Government presented sufficient evidence that each of Lamartiniere’s pre suspension prescriptions did not serve a legitimate medical purpose.”
Finally, there was sufficient evidence that “many of the factors identified in Rosen are present here.” In United States v. Rosen, 582 F.2d 1032, 1036 (5th Cir. 1978), the court identified these nine factors as being associated with unauthorized prescriptions: (1) an “inordinately large quantity of controlled substances was prescribed;” (2) “[l]arge numbers of prescriptions were issued;” (3) “[n]o physical examination was given;” (4) the “physician warned the patient to fill prescriptions at different drug stores;” (5) the “physician issued prescriptions to a patient known to be delivering the drugs to others;” (6) the “physician prescribed controlled drugs at intervals inconsistent with legitimate medical treatment;” (7) the “physician involved used street slang rather than medical terminology for the drugs prescribed;” (8) “[t]here was no logical relationship between the drugs prescribed and treatment of the condition allegedly existing;” and (9) the “physician wrote more than one prescription on occasions in order to spread them out.”