Opinion
Cause No. IP02-0005-CR-01-B/F
November 1, 2002
ENTRY DENYING DEFENDANT'S MOTION TO DISMISS
Defendant Randolph W. Lievertz is a licensed medical physician authorized to dispense Schedule II narcotic substances in the course of his professional practice and a participating provider in the Indiana Medicaid Program. Together with a co-defendant, Lievertz is charged with possessing and distributing a Schedule II controlled substance, and knowingly and willfully executing and attempting to execute a scheme and artifice to defraud a health care benefit program and obtain money from that program by false and fraudulent pretenses, representations, and promises. This matter comes before the Court on Defendant's Motion to Dismiss the Indictment based on alleged defects in the charging document. For the reasons set forth in detail below, we DENY Defendant's Motion to Dismiss.
Background
On January 15, 2002, Defendant Lievertz (along with co-Defendant Melinda Hawkins, formerly Lievertz's patient) was indicted by a grand jury on multiple counts of possessing and distribution of a Schedule II controlled substance, in violation of 21 U.S.C. § 841(a)(1), and participating in a scheme to defraud a health care benefits program, in violation of 18 U.S.C. § 1347.
Title 21 U.S.C. § 841(a)(1) provides, in relevant part:
Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally — (1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance; or (2) to create, distribute, or dispense, or possess with intent to distribute or dispense, a counterfeit substance.
Title 18 U.S.C. § 1347 provides, in relevant part:
Whoever knowingly and willfully executes, or attempts to execute, a scheme or artifice . . . to obtain, by means of false or fraudulent pretenses, representations, or promises, any of the money or property owned by, or under the custody or control of, any health care benefit program, in connection with the delivery of or payment for health care benefits, items, or services, shall be guilty of a crime against the United States. A jury trial on the charges against Lievertz is scheduled for November 18, 2002.
Hawkins, also charged in the Indictment, is scheduled for a separate trial.
Motion to Dismiss Defendant moves to dismiss portions of the Indictment, alleging various deficiencies in the wording of the Indictment and constitutional defects in one of the charging statutes. We consider each of these arguments in turn.
1. Equal Protection/Due Process
Defendant contends that 21 U.S.C. § 841(a)(1) violates the protections embodied in both the Equal Protection and Due Process clauses because it relies on suspect classifications and impinges the fundamental rights of both physicians and patients. In order to survive a challenge under either an Equal Protection or Due Process analysis, a statutory classification need only withstand "rational basis" review, unless it invades a fundamental constitutional right or is based upon "suspect" criteria, such as race. Gillespie v. City of Indianapolis, 13 F. Supp.2d 811, 822 (S.D.Ind. 1998), aff'd, 185 F.3d 693 (7th Cir. 1999), citing Harris v. McRae, 448 U.S. 297, 322 (1980).
Despite Defendant's argument to the contrary, according to well-established precedent, regulations applied differently across medical specialties do not implicate any suspect classifications. See Maguire v. Thompson, 957 F.2d 374, 376 (7th Cir. 1992) (licensing scheme distinguishing between doctors of naprapathy and doctors of medicine, osteopathy and chiropractic did not involve suspect classification). Defendant also contends, regarding the alleged due process violation, that applying 21 U.S.C. § 841(a)(1) to pain specialists implicates both the fundamental constitutional right of the physician to "practice his specialty without fear of intervention by non-medical enforcement officers" and the constitutional right of the patient to obtain necessary medication. Such arguments are legally unpersuasive, however. In Washington v. Glucksberg, 521 U.S. 702 (1997), the Supreme Court explained its two-part approach to identifying due process rights:
First, . . . the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, deeply rooted in this Nation's history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed. Second, we have required in substantive-due-process cases a careful description of the asserted fundamental liberty interest. Our Nation's history, legal traditions, and practices thus provide the crucial guideposts for responsible decision making that direct and restrain our exposition of the Due Process Clause. Id. at 720-21 (citations and internal quotations omitted).
Defendant has not offered and the Court has not found any basis under this explication of the Due Process clause for a physician's fundamental right to practice medicine unhindered by government regulation, which would seem to insulate medical professionals from criminal prosecution so long as the alleged malfeasance occurred in the course of the physician's practice. To the contrary, the weight of authority establishes clearly that physicians do not enjoy a fundamental right to be free of vocational regulation, particularly where, as here, such practices allegedly run afoul of generally applicable criminal statutes. See, e.g., U.S. v. Roya, 574 F.2d 386 (1978); U.S. v. Moore, 423 U.S. 122, 142 (1975).
As to the patient's alleged fundamental right to obtain medical treatment, Defendant's broad description of this right does not fit the boundaries established by case law. The Supreme Court has held that the Due Process Clause protects an individual's right to marry, to have children, to direct the education and upbringing of one's children, to marital privacy, to use contraception, to bodily integrity, and to abortion. Glucksberg, 521 U.S. at 720 (internal citations omitted). The Court "has also assumed, and strongly suggested, that the Due Process Clause protects the traditional right to refuse unwanted lifesaving medical treatment." Id., citing Cruzan by Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261, 278-279 (1990). However, Defendant has not identified and we have not found any case law suggesting that patients enjoy the unfettered right to select their form of medical treatment where the Government reasonably regulates those forms of treatment; in fact, the Seventh Circuit has explicitly rejected such a right. Mitchell v. Clayton, 995 F.2d 772, 775 (7th Cir. 1993) (citations omitted). Heeding the Court's admonition to use the "utmost care" when "break[ing] new ground" in the area of fundamental rights, Glucksberg, 521 U.S. at 720, citing Collins v. City of Harker Heights, Tex., 503 U.S. 115, 125 (1992), we decline to go so far as to create or recognize the rights Defendant advocates.
Because 21 U.S.C. § 841(a)(1) impinges neither a suspect classification nor a fundamental right, the level of scrutiny applied under either Equal Protection or Due Process analysis is the same — that is, rational basis scrutiny. Eby-Brown Co., LLC v. Wis. Dept. of Agric., 295 F.3d 749, 754 (7th Cir. 2002); Turner v. Glickman, 207 F.3d 419, 424 (7th Cir. 2000). Under this level of review, a statute is presumed constitutional so long as "there is a rational relationship between the disparity of treatment and some legitimate governmental purpose." Heller v. Doe by Doe, 509 U.S. 312, 320 (1993); see also Turner, 207 F.3d at 424. "[T]he State need not articulate its reasoning at the moment a particular decision is made. Rather, the burden is upon the challenging party to negate 'any reasonably conceivable state of facts that could provide a rational basis for the classification.'" Board of Trustees of the Univ. of Alabama v. Garrett, 531 U.S. 356, 366-67 (2001), quoting Heller, 509 U.S. at 320.
We find that 21 U.S.C. § 841(a)(1) easily passes muster under rational basis review. The statute is reasonably related to the legitimate state goal of preventing the unauthorized possession and distribution of controlled substances by anyone, including physicians, distributing them outside the legitimate scope of medical practice. Defendant asserts, without factual or legal support, that the statute is being used to "seek out doctors, particularly pain medicine specialists." Such a conclusory allegation simply cannot meet Defendant's burden under rational basis scrutiny. Accordingly, Defendant's Motion to Dismiss based on both Equal Protection and Due Process grounds is DENIED.
Defendant lodges additional challenges to the charging statutes, purportedly for overbreadth and unlawful delegation of decisionmaking authority. However, upon closer review, the substance of these challenges addresses substantially the same concerns as Defendant's vagueness challenge; thus, we will resolve them within this single passage.
Defendant contends that the statutes under which he has been charged, namely 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 1347, are unconstitutionally vague. The void-for-vagueness doctrine "requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Kolender v. Lawson, 461 U.S. 352, 357 (1983); U.S. v. Lobue, 751 F. Supp. 748, 754 (N.D.Ill. 1991). To prevail on a vagueness challenge, a defendant must establish that the text of the statute fails to "establish minimal guidelines to govern the discretion of law enforcement officials." Kolender, 461 U.S. at 358; U.S. v. Antzoulatos, 962 F.2d 720, 726 (7th Cir. 1992).
Defendant similarly moves to dismiss Counts 1 through 3, 9, 12, and 15 of the Indictment on the basis that such charges are not stated with sufficient certainty. "An indictment is sufficient if it contains the elements of the offense charged and adequately informs the defendant of the specific charges against him, enabling him to prepare a defense for trial and permitting him to plead an acquittal or conviction in order to bar any future prosecution for the same offense." U.S. v. Brack, 747 F.2d 1142, 1146 (7th Cir. 1985), citing Hamling v. U.S., 418 U.S. 87, 117-18 (1974). Defendant further argues that the statute upon which the charges are based represents an unlawful delegation of decisionmaking. Although Defendant framed these challenges as separate arguments, in fact they only (continued . . .) repeat or restate previous arguments as to vagueness, specifically that inherent ambiguity and lack of understanding of the relevant standards of palliative care prohibit law enforcement officials and medical professionals from determining with certainty what the law requires. For the reasons stated in our discussion of vagueness (which will not be repeated here), Defendant's Motion to Dismiss on this ground is similarly DENIED.
Defendant argues that 21 U.S.C. § 841(a)(1) is void for vagueness because "[a] reasonable physician, looking at the statute, cannot determine what actions are 'not medically necessary' and/or 'outside the scope of professional practice.'" Def.'s Mot. to Dismiss at 7. We do not agree. The Supreme Court explicitly invoked this standard in United States v. Moore, 423 U.S. at 142, in affirming the conviction of a licensed physician under 21 U.S.C. § 841(a)(1). In Moore, the Court held that sufficient evidence was adduced at trial to support the finding that the defendant had acted outside the usual course of professional practice. Id. Although the Seventh Circuit has not had occasion to address alleged vagueness in this portion of the statute, other courts have addressed similar challenges to the phrase "outside the scope of professional practice" as used in 21 U.S.C. § 841(a)(1) and found no constitutional infirmity. See, e.g., U.S. v. Rosenberg, 515 F.2d 190, 197 (9th Cir. 1975); U.S. v. Collier, 478 F.2d 268, 272-73 (5th Cir. 1973). Given the Supreme Court's explicit application of this standard to physician liability under the statute and subsequent federal decisions upholding the wording, we find that the statutory language at issue is not unconstitutionally vague, and Defendant's Motion to Dismiss on this ground is DENIED.
3. Lack of criminal intent
Defendant moves to dismiss all counts relating to 21 U.S.C. § 841(a)(1) on the basis that the statute criminalizes various actions without regard to the presence of criminal intent and that, in order to be criminal, Lievertz must have written prescriptions with the intention of causing addiction or satisfying a known addiction or a diversion. Def.'s Mot. to Dismiss at 9. Again, we must disagree. The statute explicitly proscribes certain forms of conduct with respect to controlled substances when they occur knowingly or intentionally, but provides an exception for those same activities when they occur within the scope of professional practice. Although Lievertz's good faith basis for possessing and distributing the substances at issue may provide a defense at trial, it does not constitute a reason to strike any of the charges from the Indictment. Accordingly, Defendant's Motion to Dismiss on this basis is DENIED.
4. Duplicity/Multiplicity Defendant further moves to dismiss Count 15 of the Indictment on the ground that it is "duplicitous and/or multiplicitous." We must note, at the outset, that it is logically impossible for a single count of an indictment to be both duplicitous and multiplicitous. A multiplicitous indictment charges a single offense in separate counts of an indictment, while a duplicitous charge joins two or more separate offenses in a single count of an indictment. U.S. v. Conley, 291 F.3d 464, 469 n. 4 (7th Cir. 2002).
Because Defendant challenges only a single count of the Indictment, we presume he means to frame his challenge in terms of duplicitousness. Federal Rule of Criminal Procedure 8(a) requires that indictments charging multiple offenses state each offense in a separate count. Fed.R.Crim.P. 8(a); U.S. v. Berardi, 675 F.2d 894, 897 n. 5 (7th Cir. 1982). Duplicitous indictments are disfavored because of numerous risks: 1) lack of adequate notice to the defendant of the nature of the charges against which he must defend; 2) possible prejudice in evidentiary rulings at trial; 3) double jeopardy complications resulting from unclear trial records; and 4) the possibility that a jury may convict a defendant by a nonunanimous verdict. U.S. v. Kimberlin, 781 F.2d 1247, 1250 (7th Cir. 1985). Notwithstanding these risks, however, an indictment may charge multiple acts in the same count, even where such offenses could be charged separately, if such acts "comprise a continuing course of conduct that constitutes a single offense." U.S. v. Buchmeier, 255 F.3d 415, 420 (7th Cir. 2001), citing U.S. v. Berardi, 675 F.2d 894, 898 (7th Cir. 1982). "A count is not duplicitous if it simply charges the commission of a single offense by different means." U.S. v. Tanner, 471 F.2d 128, 138 (7th Cir. 1972). An indictment may properly include multiple factual scenarios to establish a single charged offense. U.S. v. Folks, 236 F.3d 384, 391 (7th Cir. 2001).
"The line between multiple offenses and multiple means to the commission of a single continuing offense is often a difficult one to draw. The decision is left, at least initially, to the discretion of the prosecution." Berardi, 675 F.2d at 898; U.S. v. Steurer, 942 F. Supp. 1183, 1187 (N.D.Ill. 1996).
Here, Count 15 of the Indictment is not fatally duplicitous. Count 15 charges Defendant with violating 18 U.S.C. § 1347 by a variety of alleged acts comprising a scheme to defraud. These multiple acts do not represent separate charges, but separate factual scenarios, allegedly occurring on different dates, all offered to support the single charged offense. Moreover, the risks with which the duplicity doctrine is concerned are not present in this case. The highly specific allegations contained in Count 15 provide adequate notice to Defendant of the conduct for which he is to be tried. Moreover, any risk of a nonunanimous jury verdict would be reduced by instructions limiting the jury's inquiry to the elements constituting a violation of each separate offense charged. See Kimberlin, 781 F.2d at 1251. Therefore, Defendant's Motion to Dismiss the Indictment based on duplicity is DENIED.
5. Misleading language in Paragraph 14
Defendant claims that a deficiency in Paragraph 14 of the Indictment renders Count 15 legally inadequate. The challenged paragraph states that "[d]uring the period covered by this Indictment, the defendant, Melinda D. Hawkins, was eligible for medical coverage in the Indiana Medicaid program."
Indictment at 4. Defendant contends that this language although "technically true," is "grossly misleading," because "[i]n order for a crime to have been committed by Dr. Lievertz' receipt of money from Melinda Hawkins, she would have to have been covered by Medicaid during her entire course of treatment with Lievertz. Def.'s Mot. to Dismiss at 13. The charging statute contains no such requirement, however. In order to prove health care fraud, the Government must prove that Lievertz knowingly executed a scheme to defraud a health care benefit program in connection with payment for health care benefits. 18 U.S.C. § 1347; see also U.S. v. Vasquez-Ruiz, 2002 WL 1880127, at *1 (N.D.Ill. 2002). The statute does not contain, and Defendant has cited no legal authority to suggest, a requirement that Ms. Hawkins be covered by Indiana Medicaid for any particular period of time during her treatment by Lievertz. Therefore, Defendant's Motion to Dismiss Count 15 of the Indictment is DENIED.
Conclusion
Defendant moved to dismiss the Indictment on multiple grounds. For the reasons explained in detail above, we find that 1) 21 U.S.C. § 841(a)(1) and its application to the facts of this case do not run afoul of the Due Process or Equal Protection clauses of the United States Constitution; 2) 21 U.S.C. § 841(a)(1) is not unconstitutionally vague; 3) neither the Indictment nor 18 U.S.C. § 841(a)(1) fails to allege the necessary intent element to support a criminal charge; 4) Count 15 is not fatally duplicitous; and 5) Paragraph 14 of the Indictment contains no misleading language. Accordingly, Defendant's Motion to Dismiss is DENIED.
It is so ORDERED this day of October, 2002.