Criminal: Sentence stands despite incorrect jury instructions

Where the jury was improperly instructed, but the defendant failed to show how the result would have been different had the jury been properly instructed, his convictions for conspiracy and for aiding and abetting the distribution of controlled substances outside the usual course of his professional practice were affirmed.

Background

A nurse at a medical clinic where Dr. George P. Naum, III worked prescribed controlled substances without the supervision of a doctor. Contending he knew about the nurse’s conduct but did not try to stop it, the government prosecuted Naum for conspiracy and for aiding and abetting the distribution of controlled substances outside the usual course of his professional practice, all in violation of 21 U.S.C. § 841(a). And a federal jury concluded the government proved its case, convicting Naum on those counts.

In Ruan v. United States, 597 U.S. 450 (2022), however, the Supreme Court clarified that to convict a defendant under § 841(a), the government must prove not only that that he knowingly or intentionally distributed controlled substances, it must also prove he “knew or intended that his [ ] conduct was unauthorized.” It vacated Naum’s conviction and remanded for a consideration of the jury instructions under the § 841 scienter standards from Ruan.

Invited error

The government contends that the court gave mens rea and good faith jury instructions substantially similar to what Naum requested. Thus, it argues that Naum invited any error that may exist in the instructions and should not be permitted to now challenge them. But this court declines to follow the invited error doctrine in this case when the requested instructions relied on settled law that changed while the case was on appeal.

Ruan

The aiding and abetting distribution charge said the government must prove that Naum “knew suboxone was a controlled substance under the law.” But it did not say that the government had to prove that Naum knew his actions were outside the bounds of professional medical practice. Instead, the instructions only charged the government with proving that “[h]is actions were outside the bounds of professional medical practice.”

The only instruction that hinted at a state of mind for acting outside the bounds of professional medical practice addressed motive. And that particular instruction said no evidence of motive was required. Thus, the aiding and abetting instructions fail to incorporate the subjective mens rea Ruan requires.

The conspiracy jury instructions fare no better. They do not clarify that Naum must have known that allowing Jackson to submit prescriptions the way she did was outside the bounds of professional medical practice. Thus, they are also incorrect after Ruan. And no other instructions cure the error or accurately state the controlling law.

Error

Naum must show that the court’s jury instructions include an error, that the error was clear and obvious and that the error affected his substantial rights—meaning that it impacted the outcome of the district court proceedings. And Naum also must show that the error seriously affected the fairness, integrity, or public reputation of the judicial proceedings.

As already discussed, the jury instructions conflict with Ruan. And with the benefit of hindsight, the error is clear and obvious. But other than claiming the instructions effectively criminalize medical malpractice, Naum does not marshal an argument as to how the result would have been different had the jury been properly instructed. In contrast, the government maintains that the undisputed record evidence at Naum’s trial establishes that he subjectively understood he could not delegate his prescriptive authority to Jackson.

The government points out that Naum conceded he was aware that Jackson prescribed medicine and made dosage changes with unrestricted use of the doctors’ DEA numbers, even though she lacked authorization. What’s more, the government notes Naum did not stop Jackson from doing this. Instead, Naum signed off on medical records knowing Jackson had done what she wasn’t supposed to do.

Naum knew it was wrong to do this, but he did it anyway because he was concerned his patients would just head to the street for drugs. Based on that evidence, the government insists Naum cannot show that the incorrect jury instructions actually affected the outcome of the proceedings. The court agrees with the government. Naum has not met his burden of showing how the Ruan error affected his substantial rights.

Affirmed.

United States v. Naum III, Case No. 20-4133, Apr. 11, 2025. 4th Cir. (Quattlebaum), from NDWVA at Clarksburg (Keeley). Elgine Heceta McArdle for Appellant. Eleanor F. Hurney for Appellee. VLW 025-2-134. 18 pp.