United States v. Dr. James Heaton ( 2023 )

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-12568
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DR. JAMES HEATON,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 2:18-cr-00009-RWS-JCF-3
____________________
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2 Opinion of the Court 20-12568
Before WILSON, JILL PRYOR, and HULL, Circuit Judges.
HULL, Circuit Judge:
After a jury trial, Dr. James Heaton appeals his convictions
for 27 counts of aiding and abetting the acquisition of controlled
substances by deception and 102 counts of unlawfully dispensing
controlled substances. On appeal, Heaton argues that the jury
instructions were improper and his statute of conviction, 21 U.S.C.
§ 841(a), was unconstitutionally vague. After review, and with the
benefit of oral argument, we affirm Heaton’s convictions.
I. BACKGROUND
Heaton was a family practice physician in the small town of
Blairsville, Georgia. Heaton primarily treated geriatric patients,
but over time the number of his patients declined. Heaton’s
practice then saw an increasing number of chronic pain patients.
This case involves the large volume of prescriptions for
controlled substances that Heaton wrote for three pain patients:
(1) Michael Gowder and (2) two women patients referred to here
as T.G. and H.J.W. From 2013 through 2015, Heaton prescribed
these three patients thousands of pain pills, including
hydrocodone, oxycodone, and methadone.
Gowder, who was a health care administrator, was not only
Heaton’s so-called “pain patient,” but also was charged as a
codefendant for his role in aiding and abetting Heaton’s unlawful
dispensing of controlled substances and for Gowder’s acquiring
controlled substances by deception. The jury found Gowder
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guilty, and he did not appeal. This appeal involves only Heaton
and his convictions.
Below, we describe Heaton’s practice, his prior interactions
with the Georgia Medical Board (“Medical Board”), his
relationships with the three pain patients, and the federal
investigation into his prescriptions for controlled substances.
A. Heaton’s Practice
In the late 1990s, Heaton operated a general family practice
and rented space to other doctors. In 2011 or 2012, Heaton moved
his practice into a smaller office, where he saw an increasing
number of younger patients and patients with chronic pain issues.
As part of his practice, Heaton operated a sleep study
business. Heaton rented the building for his practice from the
Union General Hospital (the “Hospital”). Heaton also served as
the medical director of the Hospital’s nursing home.
B. The Patient Pain Contracts
In 2010, Heaton had a matter before the Medical Board. 1 In
connection with that matter, Heaton provided the Medical Board
with two forms that he reportedly gave to patients who were
prescribed controlled substances for pain. Heaton informed the
1The details of that matter were not presented in the trial evidence. The
Medical Board has since changed its name to the Composite State Board of
Medical Examiners.
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Medical Board that all of the pain patients at his clinic were
required to fill out both forms.
Heaton’s form contracts provided that patients agreed:
(1) not to ask for prescriptions to be filled early, (2) not to ask for
the dosage or frequency of medications to be increased, and (3) that
any breach of the contract could result in the patient’s dismissal
from Heaton’s practice. 2 Heaton’s records for Gowder, T.G., and
H.J.W. did not contain these contracts.
C. Michael Gowder
Gowder, Heaton’s codefendant, had been Heaton’s patient
since the 1990s. While Gowder testified in his defense case, the
government’s evidence about Heaton’s controlled substance
prescriptions for Gowder, recounted below, came from other
2 One of the forms was a patient pain contract, containing these terms:
I, ____, understand, agree with, and will comply with the
following rules pertaining to my medications.
I will not ask for my medications to be filled early.
I will not ask for the dosage or frequency of my medications to
be increased.
....
Any breech [sic] of this contract could result in my being
dismissed as a patient from Blairsville [F]amily Practice.
_______________ ______________
Patient Physician
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witnesses, patients’ files, medical records, and the database records
of the prescription drug monitoring program (“PDMP”).
Starting in January 2012, Heaton prescribed Gowder 40 pills
of hydrocodone 10 milligrams (mg) to treat Gowder’s back and leg
pain.
As outlined in detail later, the dosage, quantity, and potency
of Gowder’s pain prescriptions increased over time. By June 2012,
Heaton had increased Gowder’s monthly prescription to 120 pills
of oxycodone 30 mg. From July 2012 to November 2012, Heaton
prescribed Gowder two prescriptions per month, each for 120 or
150 pills of hydrocodone 10 mg or oxycodone 30 mg. By 2013,
Heaton was writing Gowder two or three prescriptions, each for
150 pills of oxycodone, nearly every month.
Gowder filled these prescriptions at pharmacies in Georgia,
Tennessee, and North Carolina. 3
On January 1, 2013, Gowder, who was a health care
administrator, became the Hospital’s chief executive officer
(“CEO”). That same day, Gowder increased Heaton’s salary as
medical director of the Hospital’s nursing home by $1,000 a month.
A Hospital employee testified that he saw Heaton at the nursing
home “very infrequently.”
3At this time, the PDMPs in Georgia, North Carolina, and Tennessee did not
share information, so the pharmacists checking their state’s PDMP records
would not have learned that Michael Gowder was filling multiple
prescriptions for the same or similar drugs each month in different states.
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Nearly every month between May 2013 and June 2015,
Heaton wrote Gowder two prescriptions, each for oxycodone 30
mg. During that time period, Heaton also wrote Gowder a
prescription for Percocet 10 mg most months. 4 For example, in
January 2014, Heaton issued Gowder: (1) a prescription for 150 pills
of oxycodone 30 mg on January 14th; and (2) prescriptions for 150
pills of oxycodone 30 mg and 150 pills of Percocet 10 mg on January
24th. In total, Heaton prescribed more than 15,000 pain pills to
Gowder between January 2012 and June 2015.
Lisa Kelley worked at Heaton’s office from the late 1990s to
2015. Kelley testified that, to her knowledge, Gowder never paid
for an office visit with Heaton. Kelley never collected a co-pay
from Gowder, who did not make an appointment when he visited
Heaton’s office.
Instead, at least once a month, Gowder came through the
back door of Heaton’s clinic at closing time and met with Heaton
in his private office to pick up a prescription. On some of these
visits, Gowder brought a check from the Hospital payable to
Heaton, who deposited these checks in his personal account. From
April 2013 to December 2015, while Gowder was the CEO, the
Hospital issued checks totaling $342,500 to Heaton, some of which
Gowder delivered personally.
4 The Percocet contained oxycodone 10 mg mixed with Tylenol.
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In January 2014, Gowder, in his capacity as the Hospital’s
CEO, purchased Heaton’s sleep clinic for $155,000. After this deal,
Gowder instructed Hospital employees to reduce Heaton’s $3,200
monthly rent for his office space by $1,000 because the sleep study
was being housed there.
D. Patient-Witness T.G.
Patient T.G. testified that she had struggled with drug
addiction. T.G. expressly told Heaton that she was a former heroin
abuser before she became his patient. T.G. had track marks on her
arms where she injected heroin. At trial, T.G. showed these track
marks to the jury.
Prior to becoming Heaton’s patient, T.G. was prescribed
pain medication after she broke her back in a car accident when she
was 11 years old. When T.G. asked her original treating physician
for a higher dose of pain pills, that physician refused to prescribe a
stronger dose.
In September 2010, T.G. became Heaton’s patient. During
T.G.’s first visit, Heaton prescribed her 120 pills of Lortab 10 mg.5
Heaton never told T.G. that the drugs could be habit-forming or
dangerous, and he never conducted a urine screen. Although
Heaton checked a bulging disk in T.G.’s neck, he never conducted
a full physical examination of T.G.
5 The Lortab 10 mg contained hydrocodone 10 mg mixed with Tylenol.
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T.G. sometimes asked Heaton for refills on her pain
medication before her prescriptions ran out. When T.G. asked
Heaton for a refill, she would pick it up from his house or his office.
In July 2011, Heaton began to prescribe T.G. 90 pills of
methadone 10 mg. By October 2012, Heaton had increased T.G.’s
prescription to 150 pills of methadone 10 mg.
T.G. was using methamphetamine and drinking heavily
while being prescribed pain medications by Heaton. Over a
five-month period, T.G. was arrested for driving under the
influence (“DUI”) three times. She served a four-month sentence
for her third DUI.
T.G. testified that: (1) she told Heaton that she had been to
jail and that she was arrested for multiple DUIs, but (2) Heaton
never warned her that she was at risk of an overdose after going
without opiates for so long or that it was dangerous to consume
alcohol while taking her pain medication.
In June 2014, after T.G. was released from jail, Heaton even
prescribed her the same amount of pain medication that he had
prescribed before she was incarcerated (150 pills of methadone 10
mg).
To make matters even worse, Heaton and T.G. had a sexual
relationship that began before T.G. became Heaton’s patient and
continued during the time Heaton was prescribing her controlled
substances. Heaton and T.G. often would have sex when T.G.
asked for an early refill before her prescriptions ran out. T.G.
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testified that she had sex with Heaton at his house or his office after
hours. At trial, T.G. identified Heaton’s bedroom from pictures
introduced by the government.
After T.G. was arrested for violating her probation, she
began to cooperate with law enforcement. At the request of law
enforcement, T.G. texted Heaton in January 2016 and asked for a
prescription for controlled substances. Heaton responded: “Can
only write controlled substances at office visit, rules have changed,
has to be documented, it’s crazy now.” T.G. explained that, when
she had texted Heaton in the past, he would write her a
prescription.
E. Patient-Witness H.J.W.
Patient H.J.W. became Heaton’s patient starting in May
2014. At H.J.W.’s first appointment, H.J.W. asked Heaton to
prescribe hydrocodone and Heaton wrote a monthly prescription
for 60 pills of Lortab 7.5 mg 6 to H.J.W. to treat her lower abdominal
pain (eventually diagnosed as Crohn’s disease and fibromyalgia).
In August 2014, H.J.W. visited Heaton again, complaining of knee
and back pain. At H.J.W.’s request, Heaton doubled her monthly
dose to 120 pills of Lortab 7.5 mg.
In October 2014, Heaton prescribed H.J.W. cough syrup
after she presented with a sore throat. Heaton also issued H.J.W.
a prescription for 120 pills of Lortab 7.5 mg, but he did not inform
6 The Lortab 7.5 mg contained hydrocodone 7.5 mg mixed with Tylenol.
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H.J.W. about any risks associated with taking Lortab (which
contains hydrocodone) and cough syrup at the same time. In
December 2014, at H.J.W.’s request, Heaton later increased her
monthly dosage to 120 pills of Lortab 10 mg.
H.J.W. began to buy hydrocodone pills off the street a year
after she started seeing Heaton. In March 2015, H.J.W. told
Heaton that she had begun buying pills from other people. Heaton
responded that H.J.W. “could not do that” because (1) buying pills
off the street was illegal and (2) Heaton could not regulate H.J.W.’s
medications if he did not know the dosage she was taking. Heaton
said that H.J.W. could continue with her pain medication or switch
to Suboxone 7 if she wanted to stop taking her pain medication.
At Heaton’s urging, H.J.W. signed a document, which stated
“I will get my meds from only Dr. Heaton.” The document also
stated, “will titrate down” and was initialed by Heaton.
In March 2015, Heaton noted in H.J.W.’s patient file that she
was receiving seven Lortab 10 mg a day and that he would “work
her down one a day every two weeks” until H.J.W. was no longer
taking Lortab. In April 2015, Heaton noted that he had reduced
H.J.W.’s prescription to five Lortab 10 mg a day.
Starting in May 2015, however, Heaton switched H.J.W.’s
medication from Lortab 10 mg to the more potent oxycodone 15
mg, prescribing her 120 pills of oxycodone 15 mg. Heaton never
7 Suboxone is a medication-assisted treatment for opioid addiction.
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referred H.J.W. to a specialist or insisted that she seek drug
treatment.
F. Patient-Witness H.B.W.
Patient H.B.W. testified as a government witness.8
H.B.W.’s testimony was admitted pursuant to Federal Rule of
Evidence 404(b) to show Heaton’s intent to commit the charged
crimes.
H.B.W. was Heaton’s pain patient from March 2011 to
January 2012. At her first appointment, H.B.W. told Heaton that
she was struggling with parenthood and owning a business.
Heaton prescribed Xanax to H.B.W. to treat her anxiety. H.B.W.
eventually became addicted to Xanax and began to buy it off the
street. While H.B.W. was Heaton’s patient, she and Heaton had a
sexual relationship that lasted from mid-2011 until January 2012.
H.B.W.’s husband filed a complaint against Heaton with the
Medical Board, which investigated Heaton’s prescribing practices
and his sexual affair with H.B.W. In May 2014, Heaton told a
Medical Board investigator that he had prescribed controlled
substances to H.B.W. but claimed that his sexual relationship with
her began after he “terminated her” as a patient.
At some point H.B.W. and her husband stopped
communicating with the Medical Board’s investigator. In July
8 Two of Heaton’s former patients have the initials “H.W.,” so we refer to
these patients using their middle initials.
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2014, the Medical Board closed Heaton’s case with no disciplinary
action. The Medical Board, however, issued a letter of concern to
Heaton regarding its “boundary with patients” rule, which
prohibits physicians from having sexual relationships with their
patients.
G. Federal Investigation
In July 2015, Drug Enforcement Administration (“DEA”)
Agent Jason Allen began to investigate suspected drug diversion in
Blairsville, Georgia after Dr. George David Gowder was arrested
trying to fill fraudulent prescriptions. George David Gowder is the
brother of Heaton’s codefendant Michael Gowder, the Hospital’s
CEO. 9 Agent Allen began to investigate Heaton after learning that
Heaton issued Michael Gowder numerous prescriptions for
oxycodone 30 mg.
In September 2015, Agent Allen and a Medical Board
investigator met with Heaton. At this meeting, the Medical Board
investigator subpoenaed Heaton’s patient file for Michael Gowder.
Agent Allen, who reviewed this patient file, stated that it was “very
light” compared to a typical patient file.
A few weeks later, Agent Allen served a DEA subpoena on
Heaton for this same Michael Gowder file, which now contained
9 Before Heaton and Michael Gowder’s trial, George David Gowder pled
guilty to unlawfully dispensing controlled substances and was sentenced to
eighteen months’ imprisonment. After trial, Michael Gowder was sentenced
to a term of imprisonment of one year and one day.
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two MRI reports from 2011 and 2015 and a radiology report from
2006. Agent Allen did not see any of these reports in this file when
Heaton provided it to the Medical Board.
During his investigation, Agent Allen interviewed T.G.,
who was wearing a short sleeve shirt and “had very obvious track
marks” on both arms.
In March 2016, Heaton was arrested. During the arrest,
Agent Allen accompanied Heaton to his bedroom so that Heaton
could change his clothes. Agent Allen told Heaton that his
bedroom matched a description given by one of his patients.
Heaton responded that patients came over to his house from time
to time.
II. INDICTMENT & TRIAL
In March 2019, a second superseding indictment charged
Heaton with 1 count of conspiracy to unlawfully distribute and
dispense controlled substances, in violation of 21 U.S.C.
§§ 841(b)(1)(C), 843, & 846 (Count 1); 102 substantive counts of
unlawful dispensing of controlled substances to Gowder (Counts
2-76) and to T.G. and H.J.W. (Counts 104-130), all in violation of
21 U.S.C. § 841(a)(1), (b)(1)(C); and 27 counts of aiding and abetting
Gowder’s acquisition of controlled substances by deception, in
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violation of 21 U.S.C. § 843(a)(3) and 18 U.S.C. § 2 (Counts
77-103). 10
As to the 102 substantive § 841(a) counts, the indictment
alleged that Heaton unlawfully prescribed controlled substances
to: (1) Michael Gowder from May 1, 2013, to June 16, 2015 (Counts
2-76); (2) T.G. from September 16, 2014, to August 18, 2015
(Counts 104-115); and (3) H.J.W. from October 15, 2014, to
September 11, 2015 (Counts 116-130).
During Heaton and Michael Gowder’s eight-day jury trial,
the government presented thirteen witnesses and overwhelming
evidence of Heaton’s unlawful dispensation of controlled
substances. The government’s witnesses included former
employees of Heaton’s practice and the Hospital, Agent Allen, two
Medical Board investigators, three of Heaton’s patients (T.G.,
H.J.W., and H.B.W.), and an expert witness on pain management.
The evidence also included hundreds of pages of patient files,
medical records, prescription documents, charts from the PDMP
databases, and photographs.
While the above evidence covers Heaton’s interactions with
the Medical Board and his patients, we now outline the expert
10During Heaton’s criminal proceedings, the trial court dismissed more than
seventy counts from the second superseding indictment. At the trial court’s
direction, the government prepared a “dummy” indictment, which omitted
the dismissed charges. This dummy indictment was submitted to the jury
during deliberations. The counts referenced in this opinion are as numbered
in the dummy indictment.
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testimony about how Heaton prescribed pain pills for no legitimate
medical purpose and outside the scope of professional practice.
A. Dr. Gary Kaufman
The government called Dr. Gary Kaufman as an expert
witness. Dr. Kaufman, a board-certified physician in pain medicine
and neurosurgery, ran a pain management clinic in Brunswick,
Georgia for thirteen years. He reviewed the patient files and
PDMP records for eleven of Heaton’s patients, including Michael
Gowder, T.G., and H.J.W. Dr. Kaufman described the Medical
Board’s rules governing the prescription of controlled substances
and explained how Heaton did not follow them.
Dr. Kaufman testified that the Medical Board has adopted
“commonsense” rules of professional conduct that all physicians
must follow. Under these rules, “unprofessional conduct”
includes: (1) failing to maintain appropriate records for patients
being prescribed controlled substances; (2) having personal or
sexual relationships with patients; and (3) prescribing controlled
substances to known or suspected drug abusers in the absence of a
substantial justification.
Additionally, the Medical Board requires that physicians:
(1) obtain a patient’s medical history, conduct a physical
examination, and receive informed consent before prescribing pain
medications; (2) obtain or make a diligent effort to obtain a
patient’s prior medical records; (3) create a treatment plan;
(4) determine whether conservative treatment, including non-
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controlled medicines, is appropriate before prescribing opioids;
(5) have a treatment agreement with the patient if the patient is
prescribed hydrocodone, oxycodone, or similar substances for
longer than ninety days; (6) monitor a patient’s use of the
controlled substances by randomly checking bodily fluids (i.e.,
urine screens) at least four times a year; and (7) create a record
showing evaluation and monitoring of the patient and the rationale
for continuing or modifying the therapy.
Dr. Kaufman explained that the treatment of pain can
constitute a legitimate medical purpose for prescribing controlled
substances. But if a doctor determines that a patient is abusing the
medication, the issuance of pain medications is no longer
legitimate, and the doctor must make an appropriate referral for
treatment of substance abuse.
The Medical Board requires doctors who prescribe
controlled substances to “document everything.” Dr. Kaufman
observed: “If it’s not written, it didn’t happen.”
Based on his review of Heaton’s patient files for Michael
Gowder, T.G., and H.J.W., Dr. Kaufman testified that Heaton
regularly: (1) failed to conduct credible physical examinations;
(2) did not monitor patient compliance with prescribed
medications; (3) did not review PDMP records; (4) did not obtain
prior medical records relating to pain complaints; and (5) did not
properly document the prescriptions that he issued to these
patients.
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According to Dr. Kaufman, the physical exams documented
in Heaton’s files were not “authentic” because (1) Heaton
repeatedly failed to fill out important blanks in the electronic
template, and (2) Heaton copied and pasted the same information
on the templates for the completed parts of the template, even
though that information likely would have changed from visit to
visit. Ultimately, after reviewing all of the patient files and
prescriptions, Dr. Kaufman opined that Heaton prescribed pain
medications to Michael Gowder, T.G., and H.J.W. without a
legitimate medical purpose and outside the usual course of
professional practice.
Here’s what Dr. Kaufman specifically testified about based
on his review of Heaton’s patient files for Gowder, T.G., and
H.J.W. and the prescriptions that Heaton wrote to each of these
patients.
B. Dr. Kaufman as to Prescriptions for Michael Gowder
Even though Heaton wrote more than 100 prescriptions for
Michael Gowder, Heaton’s patient file for Gowder usually did not
document those prescriptions with any notation in the file about
what he had prescribed. Heaton’s records for Gowder accounted
for only five of these prescriptions.
Dr. Kaufman explained that more than 100 prescriptions to
Michael Gowder were missing from Heaton’s records.
Significantly too, apart from two MRI reports, Heaton’s patient file
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for Gowder did not contain prior records of Gowder’s pain
complaints or indicate that Heaton attempted to get those records.
The PDMP records showed that Heaton prescribed
hydrocodone 10 mg to Gowder for six months from January 2012
to June 2012. However, the first note in Heaton’s file for Gowder
relating to controlled substances was dated June 12, 2012. In this
June 12, 2012 note, Heaton wrote that he planned to prescribe
Gowder 120 pills of oxycodone 30 mg to treat Gowder’s back pain.
While Dr. Kaufman did not doubt Gowder was experiencing back
pain from his previous back surgery, Dr. Kaufman testified that this
pain did not provide Heaton with a legitimate medical reason to be
prescribing 120 pills of oxycodone 30 mg.
In July and August 2012, Heaton continued to issue the same
prescription for 120 pills of oxycodone 30 mg to Gowder without
noting in Gowder’s file that he had collected Gowder’s medical
history, conducted a physical exam, or monitored Gowder’s
compliance with the prescribed medications. From September to
December 2012, Heaton wrote Gowder monthly prescriptions for
120 pills and then 150 pills of oxycodone 30 mg.
In sum, in 2012, Heaton increased the dosage, strength, and
quantity of Gowder’s monthly medications from 40 pills of
hydrocodone 10 mg in January 2012 to 150 pills of oxycodone 30
mg in December 2012, without documenting why he was
increasing Gowder’s medications. Heaton also routinely
prescribed “extra” or early prescriptions to Gowder for a 30-day
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supply of 120 or 150 pills of oxycodone 30 mg roughly every 2
weeks. 11
In January 2013, Heaton also started to issue Gowder
prescriptions for 150 pills of Percocet 10 mg. Heaton noted that he
was prescribing Percocet to treat Gowder’s “breakthrough pain.”
Dr. Kaufman, however, testified that (1) Percocet can treat
“breakthrough pain” that arises when a long-acting medication
wears off too soon, but (2) oxycodone 30 mg was not a long-acting
medication, so Gowder did not need a prescription for
breakthrough pain.
By May 2013, Heaton each month was prescribing Gowder
two prescriptions, each for 150 pills of oxycodone 30 mg, and one
prescription for 150 pills of Percocet 10 mg. Dr. Kaufman explained
that Heaton in effect was prescribing Gowder the equivalent of a
daily dose of 450 milligram morphine, or a milligram morphine
equivalent (“MME”) of 450. Under these circumstances, Dr.
Kaufman would have suspected that Gowder was a drug addict or
was diverting his medication.
On June 13, 2013, Heaton noted in the file that he had
prescribed 120 pills of oxycodone 30 mg to Gowder. The PDMP
records, however, showed that since January 2013 Heaton had
11 Gowderalso obtained “extra” prescriptions for 120 pills of hydrocodone 10
mg in August 2012 and 150 pills of Percocet 10 mg throughout 2013, 2014, and
2015.
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written Gowder multiple prescriptions, each for 150 pills of
oxycodone 30 mg.
In 2014, Heaton documented only one office visit for
Gowder, despite the Medical Board’s requirement to see a patient
who is taking opioids once every three months. Dr. Kaufman
testified that Heaton’s note for that one 2014 visit was “deceptive”
because Heaton indicated he was treating Gowder using
“conservative measures” without acknowledging the extensive
pain medication being prescribed to Gowder.
From June 18, 2014 to July 16, 2014, Heaton issued Gowder
three oxycodone prescriptions, each for 150 pills of oxycodone 30
mg, and one prescription for 150 pills of Percocet 10 mg. In effect,
Heaton was prescribing Gowder the equivalent of 885 MME per
day, a “very high” daily dose that would kill the average person,
but that an addicted person might be able to consume. Dr.
Kaufman testified that: (1) it was generally recommended that
physicians in general practice not prescribe more than 50 or 100
MME per day; and (2) Dr. Kaufman had never prescribed a patient
more than 500 MME a day and only prescribed 250 MME to 5 or
10 patients in his entire career.
Dr. Kaufman also reviewed records from Gowder’s visits
with two specialists in 2015. During a visit with a cardiologist in
June 2015, Gowder reported “some increasing low back pain” over
the past three to four months. In December 2015, Gowder saw a
neurologist and reported numbness and moderate-to-severe pain.
Dr. Kaufman explained that this amount of pain would not have
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warranted the pain medications that Heaton prescribed to
Gowder.
C. Dr. Kaufman as to Prescriptions for T.G.
Turning to T.G., Dr. Kaufman explained that Heaton did
not document in T.G.’s patient file that he: (1) took a complete
medical history from T.G.; (2) conducted an adequate physical
examination; (3) obtained informed consent; (4) monitored T.G.’s
compliance with her prescribed medications; (5) tried to acquire
T.G.’s prior records; or (6) diagnosed her pain. Although T.G.’s
patient file included some early prescriptions, Heaton did not
document all of the many prescriptions that he wrote to T.G.
During T.G.’s first visit in September 2010, Heaton
prescribed her 60 pills of Lortab 5 mg without obtaining her prior
medical records or providing informed consent. Dr. Kaufman
testified that Heaton’s records for this visit contained a “very, very
suboptimal amount of information” about Heaton’s physical
examination of T.G. and an “inadequate” medical history. In
October 2010, Heaton increased T.G.’s prescription to 90 pills of
Lortab 5 mg.
Over the next six months, Heaton increased the quantity
and potency of T.G.’s monthly pain medication from 90 pills of
Lortab 5 mg in October 2010 to 90 pills of oxycodone 10 mg in
March 2011. Heaton did not document T.G.’s response to the
medication or indicate that he had conducted a “definitive”
physical examination. Although T.G. consistently reported muscle
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22 Opinion of the Court 20-12568
spasms, Heaton did not treat that issue, prescribing controlled
substances instead.
In May 2011, Heaton gave T.G. an early prescription for
oxycodone 10 mg after she reported that her medications were
stolen. Heaton noted “Meds stolen at work,” without verifying
whether T.G.’s medications were actually stolen. Dr. Kaufman
testified that physicians must be “very strict” and should not
replace medicines without a “real reason.”
In July 2011, Heaton changed T.G.’s prescription to 90 pills
of methadone 10 mg, noting in her file that she could not afford
oxycodone and “was on methadone in New Jersey.” As a result of
switching to methadone, T.G.’s daily MME increased from 45 to
240, which was “way above the dangerous level.” 12 Dr. Kaufman
testified that Heaton increased T.G.’s prescription “for no apparent
reason except that she went to New Jersey and it was cheaper.”
In October 2012, Heaton increased T.G.’s monthly
prescription for methadone 10 mg from 120 pills to 150 pills
without explanation.
In June 2014, Heaton noted that T.G. had gotten a DUI.
Heaton, however, prescribed T.G. the same monthly prescription
for 150 pills of methadone 10 mg that he had issued to her before
she went to jail without warning T.G. that she could die if she
12 Dr. Kaufman testified that hydrocodonehas the same potency as morphine,
oxycodone is one and a half times as strong as morphine, and methadone is
eight times as strong as morphine.
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20-12568 Opinion of the Court 23
continued to drink and use opioids. According to Dr. Kaufman,
this prescription put T.G. at “extreme risk” and was “very
dangerous.” Dr. Kaufman testified that Heaton failed to follow the
Medical Board’s requirements and that his practices went “way
beyond poor recordkeeping.”
D. Dr. Kaufman as to Prescriptions for H.J.W.
Regarding H.J.W., Dr. Kaufman expressed similar concerns
about Heaton’s prescribing practices, starting with H.J.W.’s first
visit in May 2014. During this visit, Heaton prescribed 60 pills of
Lortab 7.5 mg to H.J.W., without obtaining an adequate medical
history, getting records from her prior doctors, or trying alternative
therapies.
In October 2014, Heaton prescribed H.J.W. cough syrup and
120 pills of Lortab 7.5 mg. Dr. Kaufman explained that these two
drugs should never be prescribed together because they are
dangerous and prone to abuse.
In March 2015, Heaton noted in H.J.W.’s file that “[t]he
Lortab is down to seven a day.” Dr. Kaufman testified that he was
unsure how H.J.W.’s prescription “got to that level” since Heaton
had not properly documented what prescriptions he gave to
H.J.W. in her patient file.
At this point, Dr. Kaufman testified that it was “fair to say”
that Heaton suspected H.J.W. had developed an addiction to her
medication. Dr. Kaufman testified that Heaton: (1) properly told
H.J.W. she should either reduce her dosage or enter drug
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24 Opinion of the Court 20-12568
rehabilitation; and (2) began to decrease H.J.W.’s medication from
seven pills of Lortab 10 mg per day in March 2015 to five pills of
Lortab 10 mg per day in April 2015.
Then, in May 2015, Heaton prescribed H.J.W. 120 pills of
oxycodone 15 mg, which increased her morphine equivalent from
50 to 90 MME for “no clear-cut reason.” While Dr. Kaufman
agreed that H.J.W.’s diseases might have justified the medication
in a different setting, it was dangerous and medically inappropriate
for Heaton to sharply increase her prescription when Heaton
believed that she was abusing her medication.
E. Rule 29 Motion, Defense, and Verdict
At the close of the government’s evidence, Heaton moved
for judgment of acquittal under Federal Rule of Criminal
Procedure 29, which the district court denied.
Heaton’s defense was that he was only a “bad note-taker,”
and not a “drug dealer.” Heaton did not testify, but he did call two
witnesses: (1) Shane Mobley, who testified to Heaton’s practices
and policies at his sleep clinic; and (2) Dr. Alan Sanders, who
testified to his own family practice in Blairsville, Georgia.
On cross-examination, Dr. Sanders testified that, when
prescribing pain medications, he documents “everything [he]
do[es]” with pain patients and takes “elaborate notes” about his
appointment with pain patients in compliance with the Medical
Board’s requirements. Dr. Sanders explained that the State of
Georgia made it “pretty easy” for physicians to prescribe controlled
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20-12568 Opinion of the Court 25
substances and that physicians could “be safe” in prescribing
controlled substances in compliance with the Medical Board’s
rules.
Michael Gowder testified in his own defense that, despite
some compliance issues, the sleep clinic became profitable the year
after the Hospital purchased it from Heaton. At the close of
evidence, Heaton renewed his Rule 29 motion, which the district
court denied as to Counts 2-130 and reserved ruling as to Count 1.
In closing argument, Heaton’s counsel argued that Gowder,
T.G., and H.J.W. all suffered from pain and that Heaton prescribed
them pain medications for a legitimate medical purpose and within
the scope of professional practice.
The jury convicted Heaton on the substantive § 841(a) and
§ 843 Counts 2-130 and acquitted him on the conspiracy Count 1.
The district court sentenced Heaton to 72 months’ imprisonment
on his § 841(a) convictions in Counts 2-76 (Gowder) and his
§ 841(a) convictions in Counts 104-130 (T.G. and H.B.W.), to run
concurrently, and concurrent 42-month sentences on his § 843
aiding and abetting convictions in Counts 77-103 (Gowder).
III. JURY INSTRUCTIONS
Heaton challenges the district court’s jury instructions. We
set forth the instructions and then Heaton’s claims.
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26 Opinion of the Court 20-12568
A. The District Court’s Jury Instructions
The district court charged the jury that Heaton could be
found guilty of his § 841(a) crimes only if all of these facts were
proved beyond a reasonable doubt:
(1) Dr. Heaton knowingly and intentionally
dispensed oxycodone or hydrocodone; and
(2) Dr. Heaton’s dispensing of the oxycodone and/or
the hydrocodone was outside the usual course of
professional practice or for no legitimate medical
purpose.
Heaton does not dispute that he knowingly and intentionally
dispensed oxycodone and hydrocodone. At trial Heaton
contended (1) his dispensing was not “outside the usual course of
professional practice” and (2) his prescriptions were issued for a
“legitimate medical purpose.”
The district court charged the jury that whether Heaton
dispensed the controlled substances “outside the usual course of
professional practice”: (1) is to be determined by the jury “based on
the totality of the evidence presented concerning the accepted
standard of professional practice in the State of Georgia at the time
of the crime” and (2) is “to be judged objectively.” (Emphasis
added).
The district court further charged that “Heaton’s good faith
belief that he dispensed a controlled substance in the usual course
of professional practice is not a defense to the charge if he dispensed
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20-12568 Opinion of the Court 27
the controlled substances ‘outside the usual course of professional
practice.’”
The district court also instructed that, “[w]hether Dr.
Heaton dispensed the controlled substances ‘for no legitimate
medical purpose’ does depend on his subjective belief.” (Emphasis
added).
We now turn to Heaton’s challenges to the jury charges.
B. Instructions as to the Elements of a § 841(a) Offense
Heaton argues that the district court erred because its jury
instruction used “or,” instead of “and,” in setting forth the elements
of a § 841(a) offense. Heaton contends that § 841(a) requires the
government to prove that he prescribed medication both “outside
the course of professional practice” and “for no legitimate medical
purpose.” 13
Some background about § 841(a) is helpful. The Controlled
Substances Act (“CSA”) makes it unlawful, “[e]xcept as
authorized[,] . . . for any person knowingly or intentionally . . . to
manufacture, distribute, or dispense . . . a controlled substance,”
such as opioids. 21 U.S.C. § 841(a)(1) (emphasis added). In turn,
the CSA expressly authorizes medical “practitioner[s]” to dispense
Schedule II and Schedule III substances with a “prescription.” Id.13 We review de novo whether a challenged jury instruction misstated the law.
United States v. Melgen, 967 F.3d 1250, 1259 (11th Cir. 2020).
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28 Opinion of the Court 20-12568
§ 829(b). 14 Practitioners who seek to dispense controlled
substances must register with the Attorney General. Id. § 822(a)(2).
The key statutory terms—“controlled substance,” “dispense,”
“distribute,” “practitioner,” and “prescription”—are defined either
by statute, see id. § 802(6), (10), (11), (21), or by regulation, see 21
C.F.R. § 1306.04(a) (2022).
The CSA’s regulations, promulgated by the Attorney
General, specify that, “[a] prescription for a controlled substance to
be effective must be issued for a legitimate medical purpose by an
individual practitioner acting in the usual course of his professional
practice.” 21 C.F.R. § 1306.04(a). As provided by regulation, a
prescription is only authorized when a doctor issues it “for a
legitimate medical purpose . . . acting in the usual course of his
professional practice.” Id.In United States v. Abovyan, this Court concluded that a
doctor violates § 841(a) if he prescribes controlled substances either
(1) for no legitimate medical purpose or (2) outside the usual
course of professional practice. 988 F.3d 1288, 1308 (11th Cir.
2021). In Abovyan, the defendant physician requested an
instruction stating, inter alia, that the government must prove
14 Oxycodone and methadone are Schedule II controlled substances. 21 C.F.R.
§ 1308.12(b)(l)(xi), (c)(15). Hydrocodone was reclassified from a Schedule III
controlled substance to a Schedule II controlled substance, effective October
6, 2014. Id. § 1308.12(b)(l)(vi); Schedules of Controlled Substances:
Rescheduling of Hydrocodone Combination Products from Schedule III to
Schedule II, 79 FR 49661-01 (Aug. 22, 2014).
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20-12568 Opinion of the Court 29
beyond a reasonable doubt that the defendant was acting as a drug
dealer, not a doctor. Id. This Court held that the district court did
not abuse its discretion in refusing to give this instruction because
“the law requires only that the jury find the doctor prescribed a
drug [(1)] not for a legitimate medical purpose or [(2)] not in the
usual course of professional practice.” Id. (emphasis added and
quotation marks omitted).
Similarly, in United States v. Tobin, this Court recognized
that “a distribution [of prescription drugs] is unlawful if 1) the
prescription was not for a legitimate medical purpose or 2) the
prescription was not made in the usual course of professional
practice.” 676 F.3d 1264, 1282 (11th Cir. 2012) (quotation marks
omitted), abrogated on other grounds by United States v. Davila,
569 U.S. 597, 133 S. Ct. 2139 (2013).
As the government points out, the plain language of 21
C.F.R. § 1306.04(a) demonstrates that the jury instruction here
correctly used “or” in defining the elements of a § 841(a) offense.
Under § 1306.04(a), a prescription for a controlled substance is
effective if it is issued “for a legitimate medical purpose by an
individual practitioner acting in the usual course of his professional
practice.” 21 C.F.R. § 1306.04(a) (emphases added). Put simply,
the regulation has two requirements for a prescription to be
effective: (1) “a legitimate medical purpose” . . . (2) by a
practitioner “acting in the usual course of his professional practice.”
Id. Conversely, a prescription for controlled substances is unlawful
if it is issued (1) without a legitimate medical purpose or (2) by the
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30 Opinion of the Court 20-12568
physician acting outside the usual course of professional practice.
See id. Thus, both requirements must be satisfied to make a
prescription authorized.
For all of these reasons, we reject Heaton’s challenge to the
“or” portion of the jury charge. Aboyvan, 988 F.3d at 1308; see also
Tobin, 676 F.3d at 1282.
C. Instructions as to § 841(a)’s Mens Rea Requirement
Next, Heaton argues that the jury instructions as to the
mens rea requirement ran afoul of the Supreme Court’s recent
decision in Ruan v. United States, 597 U.S. ----, 142 S. Ct. 2370 (2022)(“Ruan”). Heaton argues that the district court erred in instructing
the jury to apply an objective standard to the “outside the usual
course of professional practice” requirement. 15 We first discuss the
Supreme Court’s Ruan decision and how Ruan error did occur here
15 We reject the government’s contention that we should not consider
Heaton’s Ruan argument in his direct appeal because he failed to file a timely
motion under United States v. Durham, 795 F.3d 1329, 1330 (11th Cir.
2015) (en banc) (holding that an appellant may raise a new issue based on an
intervening Supreme Court decision that overrules binding precedent). This
contention ignores that: (1) oral argument in Heaton’s direct appeal was set
for December 2021, (2) Heaton timely suggested Ruan would affect his direct
appeal by filing a motion to continue oral argument after the Supreme Court
granted certiorari in Ruan, and (3) this Court continued Heaton’s case to await
the Supreme Court’s decision in Ruan. After Ruan was decided in 2022, this
Court ordered supplemental briefing. Under these particular circumstances,
we are not persuaded by the government’s claim.
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20-12568 Opinion of the Court 31
as to the mens rea requirement. We then evaluate whether it was
harmless.
1. Ruan Error
In Ruan,� the defendant physicians were convicted of
violating § 841(a)(1) by “dispensing controlled substances not ‘as
authorized.’” 597 U.S. at ----, 142 S. Ct. at 2375. One of the
defendants requested a jury instruction “requir[ing] the
government to prove that he subjectively knew that his
prescriptions fell outside the scope of his prescribing authority.” Id.
at ----, 142 S. Ct. at 2375. The district court rejected that instruction,
and this Court affirmed. Id. at ----, 142 S. Ct. at 2376.
Reversing, the Supreme Court held that the § 841(a)
statute’s “knowingly or intentionally” mens rea applied to the
statute’s “except as authorized” clause. Id. at ----, 142 S. Ct. at 2376.
The Supreme Court instructed that: “After a defendant produces
evidence that he or she was authorized to dispense controlled
substances, the Government must prove beyond a reasonable
doubt that the defendant knew that he or she was acting in an
unauthorized manner, or intended to do so.” Id. at ----, 142 S. Ct.
at 2375.
In Ruan, the Supreme Court reasoned that: (1) it is generally
presumed that “Congress intends to require a defendant to possess
a culpable mental state”; (2) a scienter requirement in a statute (like
§ 841(a)’s “knowingly or intentionally” language) typically
modifies the statutory term “that separate[s] wrongful from
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32 Opinion of the Court 20-12568
innocent acts”; (3) the statutory clause in question—“outside the
usual course of professional practice”—plays a critical role in
separating a defendant’s wrongful from innocent conduct; and
(4) § 841(a)’s scienter requirement applies to that critical statutory
clause. Id. at ----, 142 S. Ct. at 2377–78 (quotation marks omitted).
The Supreme Court further emphasized that the terms here are not
the kind it has held fall outside the scope of scienter requirements.
Id. at ----, 142 S. Ct. at 2378. The Supreme Court also noted that
“[t]he Government . . . can prove knowledge of a lack of
authorization through circumstantial evidence.” Id. at ----, 142 S.
Ct. at 2382. The Supreme Court declined to address whether any
error in the jury instructions was harmless. Id. at ----, 142 S. Ct. at
2382.
Here similarly, the jury was instructed that “[w]hether Dr.
Heaton dispensed the controlled substances ‘outside the usual
course of professional practice’ is to be judged objectively.” 16
Because this instruction allowed the jury to convict Heaton
without considering whether he knowingly or intentionally issued
16To the extent Heaton challenges the jury instruction as to the mens rea for
dispensing controlled substances for a legitimate medical purpose, that
argument lacks merit. The jury was properly instructed that whether Heaton
prescribed controlled substances for a legitimate medical purpose “depend[ed]
on his subjective belief.” There was no Ruan error as to the legitimate medical
purpose part of the charge.
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20-12568 Opinion of the Court 33
prescriptions outside the usual course of professional practice, it
was erroneous under Ruan.17
2. Harmless Error
This brings us to whether the Ruan error—as to “outside the
usual course of professional practice”—was harmless.
Jury instructions are subject to harmless error review.
United States v. Seabrooks, 839 F.3d 1326, 1332 (11th Cir. 2016).
The government, however, has the burden to prove harmless
error. See Neder v. United States, 527 U.S. 1, 15, 119 S. Ct. 1827,
1837 (1999).
“An error is harmless if the reviewing court is satisfied
beyond a reasonable doubt that the error complained of did not
contribute to the verdict obtained.” Seabrooks, 839 F.3d at 1332–
33 (quotation marks omitted). Stated another way: “Is it clear
beyond a reasonable doubt that a rational jury would have found
the defendant guilty absent the error?” Neder, 527 U.S. at 18, 119
17 InAbovyan, there was no mens rea challenge to the jury instructions and
thus no Ruan error. Abovyan’s holding—that a doctor violates § 841(a) if the
“legitimate medical purpose” or “outside the scope of professional practice”
requirement is met—remains binding precedent, which is why we follow
Abovyan earlier. See United States v. Archer, 531 F.3d 1347, 1352 (11th Cir.
2008) (explaining that “a prior panel’s holding is binding on all subsequent
panels unless and until it is overruled or undermined to the point of abrogation
by the Supreme Court or by this court sitting en banc,” but “the Supreme
Court decision must be clearly on point” (quotation marks omitted)). Further,
even without Abovyan, we explained earlier why the § 1306.04(a) regulation
has two requirements.
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34 Opinion of the Court 20-12568
S. Ct. at 1838; see also Delaware v. Van Arsdall, 475 U.S. 673, 681,
106 S. Ct. 1431, 1436 (1986) (“[A]n otherwise valid conviction
should not be set aside if the reviewing court may confidently say,
on the whole record, that the constitutional error was harmless
beyond a reasonable doubt.”).
As noted earlier, the district court did charge that the
government must prove beyond a reasonable doubt that Heaton
subjectively knew he was dispensing pain medication for no
legitimate medical purpose. But there was no special verdict form
here, and the district court properly charged “or” as to “outside the
usual course of a professional practice.” Thus, we must assume
that the jury verdict could have been based on Heaton’s dispensing
outside the usual course of professional practice “judged
objectively.” 18
Nevertheless, we readily conclude that the government
presented overwhelming evidence that Heaton subjectively knew
18 Here, the district court suggested that a special verdict form be submitted to
the jury on the two requirements, but Heaton declined. We note, as a general
matter, that the use of a special verdict form is often a good practice. In a
special verdict form, the jury can specify whether the defendant’s prescriptions
were issued for no legitimate medical purpose, outside the usual course of
professional practice, or both. Therefore, we can more readily determine the
basis for the jury verdict.
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his conduct fell outside the usual course of his professional
practice. 19 We recount the many ways that Heaton knew that.
The Medical Board’s rules for prescribing controlled
substances are well established and not disputed. For starters, Dr.
Kaufman testified that the Medical Board had adopted
“commonsense” rules that all physicians must follow, and Dr.
Sanders, a defense witness, testified that it was “pretty easy” to
prescribe controlled substances and that physicians could “be safe”
in prescribing controlled substances in compliance with the
Medical Board’s rules. As Dr. Kaufman testified, those Medical
Board rules for prescribing the pain medications here require
physicians, like Heaton, to: (1) obtain a patient’s prior medical
history as to pain; (2) conduct a physical examination; (3) monitor
a patient’s compliance with use of the controlled substances by
randomly checking bodily fluids (i.e., urine screens) four times a
year; (4) document all prescriptions issued; (5) receive informed
consent; (6) create a treatment plan; (7) refrain from sexual
relationships with patients; (8) refrain from prescribing to known
or suspected drug abusers; (9) obtain a treatment agreement with
a patient if the patient is prescribed hydrocodone, oxycodone, or
19The government contends that Heaton’s challenge to the mens rea used in
the district court’s jury instructions is, at most, reviewable for plain error
because at trial he did not raise a timely objection to this jury instruction about
“outside the usual course of professional practice.” We assume—without
deciding—that Heaton properly preserved this Ruan issue for appeal given
that any error in the jury instruction was harmless.
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36 Opinion of the Court 20-12568
similar substances for longer than ninety days; and (10) maintain
appropriate records for patients receiving controlled substances.
After reviewing Heaton’s patient files, Dr. Kaufman testified
how Heaton regularly failed to comply with the Medical Board’s
rules. According to Dr. Kaufman, Heaton regularly: (1) failed to
obtain prior medical records relating to pain complaints; (2) did not
conduct credible physical examinations; (3) did not monitor patient
compliance with prescribed medications; and (4) did not properly
document the prescriptions that he issued to these patients.
Heaton’s own files prove he knew he was not following the
Medical Board’s rules. Here’s just some of the many examples
shown in the files.
As to Michael Gowder, Heaton repeatedly violated the
Medical Board’s requirement to “document everything.” Even
though Heaton began to prescribe Gowder pain medications in
January 2012, he did not note in Gowder’s patient file that he was
prescribing Gowder pain medication until June 2012. As Dr.
Kaufman testified and the PDMP records show, Heaton
documented only 5 of the more than 100 prescriptions he issued to
Gowder.
Heaton did not document in Gowder’s patient file that he:
(1) obtained Gowder’s medical history; (2) conducted a physical
examination; or (3) monitored compliance with Gowder’s
prescribed medications. Heaton’s patient file for Gowder also did
not contain prior records of Gowder’s pain complaints or indicate
that Heaton attempted to get those records. After the Medical
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20-12568 Opinion of the Court 37
Board subpoenaed this file, Heaton supplemented the file with
Gowder’s MRI and radiology reports, indicating that Heaton was
aware that his patient file for Gowder was incomplete.
Further, Heaton continued to prescribe Gowder pain
medications despite clear signs that Gowder was abusing his
medication. By May 2013, Heaton was prescribing Gowder such a
high daily dose that Dr. Kaufman would have suspected that
Gowder was a drug addict or was diverting his medication. Yet,
Heaton continued to increase the potency of Gowder’s pain
medications and routinely provided Gowder with “extra” or early
prescriptions for pain pills roughly every two weeks. By mid-2014,
Heaton was prescribing Gowder a “very high” daily dose that
would kill the average person, but an addicted person might be able
to consume.20
As for T.G., the government’s evidence proved that
Heaton’s prescribing practices went “way beyond poor
recordkeeping,” including evidence of a prohibited sexual
relationship with a patient. Heaton knew his sexual relationship
with T.G. fell outside the usual course of professional practice
because the Medical Board had already warned him that such a
relationship was prohibited. In July 2014, the Medical Board issued
20 Although Heaton purportedly issued this pain medication to treat Gowder’s
back pain, Gowder reported only moderate back pain and numbness to other
providers. Dr. Kaufman explained that this amount of pain would not have
warranted the pain medications that Heaton prescribed to Gowder.
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38 Opinion of the Court 20-12568
Heaton a letter of concern regarding its “boundary with patients”
rule, which prohibits physicians from having sexual relationships
with their patients. Months later, Heaton began to write T.G. the
prescriptions charged in Counts 104-115, which were issued from
October 15, 2014, to September 11, 2015—all while he was having
a sexual relationship with T.G. Accordingly, Heaton’s sexual
relationship with T.G., despite receiving a warning from the
Medical Board, proved that Heaton knew his prescriptions to T.G.
fell outside the usual course of professional practice.
In addition, Heaton continued to increase the potency of
T.G.’s pain medications without documenting T.G.’s response to
the medication or conducting a full physical examination. As Dr.
Kaufman testified, Heaton increased T.G.’s prescription to 90 pills
of methadone 10 mg in July 2011 “for no apparent reason except
that she went to New Jersey and it was cheaper.”
Heaton ignored obvious red flags that T.G. was abusing her
medication. Before T.G. became Heaton’s patient, she informed
Heaton that she had abused heroin. However, after T.G. was
arrested for three DUIs and spent time in jail, Heaton continued to
prescribe 150 pills of methadone 10 mg to her, even though T.G.
told him that she spent four months in jail for her third DUI.
Heaton did not even warn T.G. that it was dangerous to consume
alcohol while taking her pain medication.
Turning to H.J.W., Heaton prescribed pain medications to
her in flagrant violation of the Medical Board’s rules. During
H.J.W.’s first appointment, Heaton prescribed 60 pills of Lortab 7.5
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20-12568 Opinion of the Court 39
mg to her, without obtaining an adequate medical history, getting
her prior medical records, or trying alternative therapies. In March
2015, Heaton noted in H.J.W.’s file that “[t]he Lortab is down to
seven a day,” but Dr. Kaufman was unsure how H.J.W.’s
prescription “got to that level” because Heaton had not properly
documented H.J.W.’s prescriptions in her patient file.
Just two months later, in May 2015, Heaton sharply
increased the strength of H.J.W.’s prescription just two months
after H.J.W. told Heaton that she was buying pills from other
people. Dr. Kaufman explained that it was dangerous and
medically inappropriate for Heaton to increase H.J.W.’s
prescription when Heaton believed that she was abusing her
medication.
Finally, Heaton’s own interactions with the Medical Board
confirm Heaton subjectively knew he was not prescribing pursuant
to professional practices. Although Heaton informed the Medical
Board that he obtained patient contracts from every pain patient,
his files for Michael Gowder, T.G., and H.J.W. did not contain
these contracts. In fact, Heaton’s records did not contain any
patient agreements with Gowder or T.G. As for H.J.W., Heaton
asked her to sign a handwritten agreement, which stated that
H.J.W. would only get her pain medications from Heaton, who
would “titrate down” her pain medication. Heaton violated his
own handwritten agreement when he increased H.J.W.’s
prescription just two months later.
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40 Opinion of the Court 20-12568
Heaton failed to take any action after T.G. and H.J.W.
violated the terms of the pain contracts that he provided to the
Medical Board. Heaton filled T.G.’s prescription early without
documenting a “real reason” after T.G. asked him to replace a
prescription. Heaton also prescribed 60 pills of Lortab 7.5 mg
to H.J.W. upon her request and increased her dosage of pain
medications twice after she asked him to do so. Heaton’s failure to
act when he knew these patients had violated the terms of his own
patient pain agreements showed that Heaton knew the
prescriptions to these patients were issued outside the usual course
of professional practice.
In short, we are satisfied that (1) this evidence extensively
proved beyond a reasonable doubt that Heaton subjectively knew
his prescriptions to Michael Gowder, T.G., and H.J.W. were issued
outside the usual course of professional practice, and (2) a jury
would have found Heaton guilty absent the error.21 There is no
21 Heaton also argues that the evidence at trial was insufficient to show that
the prescriptions he issued to Michael Gowder, T.G., and H.J.W. had no
legitimate medical purpose. We review de novo whether the evidence is
sufficient to support a conviction, taking all evidence and drawing all
reasonable inferences in the light most favorable to the government.
Abovyan, 988 F.3d at 1302.
Based on the evidence discussed throughout this opinion, we conclude
that the trial evidence amply showed Heaton’s prescriptions in Counts 2-76
and 104-130 were issued for no legitimate medical purpose.
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basis in this trial record for concluding that the jury would have
acquitted Heaton had it been properly instructed.
3. Ruan II
Before concluding, we recognize that this Court concluded
on remand from the Supreme Court’s decision in Ruan that: (1) the
jury instructions “inadequately conveyed the required mens rea to
authorize conviction under § 841(a)”; and (2) the error in that case
was not harmless. United States v. Ruan, 56 F.4th 1291, 1298 (11th
Cir. 2023) (“Ruan II”). The trial evidence in Ruan II, however, was
nothing like the evidence in Heaton’s case.
On remand, this Court observed that: (1) both defendants
presented expert evidence about the appropriate standard of care;
(2) Dr. Ruan “introduced witnesses who testified to his practices
and procedures at the clinic to guard against abuse”; (3) Dr. Ruan
testified in his own defense “about how he always centered the
patient’s medical needs;” (4) Dr. Couch introduced “lay witnesses
who testified to his activities at the clinic”; (5) Dr. Couch “testified
to his activities at the clinic”; and (6) both Dr. Ruan and Dr. Couch
testified that they believed their actions were in accord with the
applicable standard of care. Id. Even if the jury in Ruan II believed
the doctor defendants’ testimony about their beliefs, our Court
pointed out that the jury could still have convicted them “if [the
jury] found that a reasonable doctor would not have believed the
conduct was in accord with the appropriate standard.” Id. We
reasoned that “a properly instructed jury may not have convicted
the defendants had it known that Dr. Ruan’s and Dr. Couch’s
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42 Opinion of the Court 20-12568
subjective beliefs that they were acting properly was a defense to
these charges.” Id.This case is materially different than Ruan II. Unlike the
physicians in Ruan II, Heaton did not testify in his own defense,
nor did Heaton call any expert witnesses to testify that his practices
complied with professional practices. Even though Heaton called
two lay witnesses (Mobley and Dr. Sanders), neither witness
testified about Heaton’s activities at his clinic—much less that they
complied with professional practices. Of course, neither testified
that Heaton, or any doctor for that matter, could reasonably
believe Heaton’s practice complied. 22 In light of all the
overwhelming evidence of Heaton’s subjective knowledge
recounted above, we are well satisfied that the jury would have
convicted Heaton had it been properly instructed.
IV. VAGUENESS
Heaton also argues that § 841 is unconstitutionally vague as
applied to him. He contends that the phrase “in the usual course
of his professional practice” lacks a standard defining when a
physician’s prescribing practices become unlawful. 23
22 Gowder did testify in his own defense about his interactions with Heaton.
After Heaton’s defense rested, Gowder (1) testified that he “didn’t have a clue”
what Heaton put in his charts, and (2) gave no testimony about the usual
course of professional practices for doctors or Heaton’s subjective belief.
We review de novo whether a criminal statute is unconstitutionally vague.
23
United States v. Wayerski, 624 F.3d 1342, 1347 (11th Cir. 2010).
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Where a vagueness challenge does not involve the First
Amendment, our Court must determine whether the statute at
issue, as applied to the facts of the case, “fails to provide people of
ordinary intelligence a reasonable opportunity to understand what
conduct it prohibits or it authorizes or even encourages arbitrary
and discriminatory enforcement.” United States v. Wayerski, 624
F.3d 1342, 1347 (11th Cir. 2010) (quotation marks omitted). A
criminal statute is not required to “define every factual situation
that may arise.” United States v. Biro, 143 F.3d 1421, 1430 (11th
Cir. 1998). There is a “strong presumption that statutes passed by
Congress are valid.” Wayerski, 624 F.3d at 1347.
In United States v. Collier, this Court held that § 841(a) is not
unconstitutionally vague as applied to physicians. 478 F.2d 268,
270–72 (5th Cir. 1973). 24
In Collier, a physician appealed his § 841(a)(1) conviction for
dispensing methadone while acting outside the usual course of
professional practice. Id. at 270. Affirming the conviction, this
Court rejected the physician’s arguments (1) that the phrase “in the
course of his professional practice” did not give physicians notice
as to what conduct violates the statute, and (2) that “statutes
affecting medical practice [must] delineate the precise
24 In Bonnerv. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc),
this Court adopted as precedent the decisions of the former Fifth Circuit
handed down prior to October 1, 1981.
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44 Opinion of the Court 20-12568
circumstances constituting the bounds of permissible
practice.” Id. at 270–72.
In so ruling, our Court concluded that § 841(a) is not
unconstitutionally vague because it restricts a physician to
“dispensing or prescribing drugs in the bona fide treatment of a
patient’s disease” and does not “under the guise of treatment”
permit a physician to “distribute drugs to an addict.” Id. at 272.
Indeed, the phrase—“usual course of his professional practice”—
gives physicians a certain latitude of available options. Id. at 270–
72.
Here, Heaton raises essentially the same argument that our
Court rejected in Collier—that the phrase “the usual course of his
professional practice” lacks a standard defining when a physician’s
prescribing practices become unlawful. See id.
Heaton attempts to distinguish his case from Collier on the
basis that Collier was decided before the relevant case law devolved
into a “state of muddled confusion.” He contends that existing case
law provides insufficient guidance as to the applicable mens rea and
standard of care for § 841(a) offenses involving physicians.
We are unpersuaded. Our Court has identified specific
examples of “condemned behavior” by physicians that violates
§ 841(a), including (1) prescribing an excessive quantity of
controlled substances; (2) issuing large numbers of such
prescriptions; (3) failing to physically examine patients;
(4) prescribing controlled drugs at intervals inconsistent with
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legitimate medical treatment; and (5) issuing prescriptions for
drugs that had no logical relationship to the treatment of the
patient’s alleged condition. See United States v. Rosen, 582 F.2d
1032, 1035–36 (5th Cir. 1978); see also United States v. Joseph, 709
F.3d 1082, 1104 (11th Cir. 2013) (affirming physician’s § 841(a)
conviction where evidence showed he prescribed an inordinate
amount of controlled substances, he conducted inadequate
physical examinations, and many of the combinations of prescribed
drugs were not medically necessary), overruled on other grounds
by Ruan, 597 U.S. ----, 142 S. Ct. 2370; Abovyan, 988 F.3d at 1305
(affirming physician’s § 841(a) conviction where evidence showed
he prescribed controlled substances for pain/withdrawal when
patients did not have pain/withdrawal and he failed to conduct
adequate physical examinations).
Tellingly too, the Supreme Court’s Ruan decision clarified
the mens rea that should be incorporated into jury instructions for
§ 841(a) offenses. 597 U.S. at ----, 142 S. Ct. at 2376. The Supreme
Court determined that (1) § 841(a)’s “knowingly or intentionally”
mens rea applies to the critical terms in the statute and (2) the
government must prove that the defendant physician subjectively
knew that his conduct fell outside the usual course of professional
conduct. Id. at ----, 142 S. Ct. at 2376. We have no reason to depart
from our precedent in Collier.
Likewise, we reject Heaton’s argument that § 841 is
unconstitutionally vague because the CSA does not define the
phrases “legitimate medical purpose” and “usual course of
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professional practice.” These phrases do not require statutory or
regulatory definitions. Rather, they are phrases reasonably
understandable by a physician and their factual application will
necessarily entail a case-by-case analysis. See Collier, 478 F.2d at
270–72; Biro, 143 F.3d at 1430. For the above reasons, we conclude
§ 841(a) is not unconstitutionally vague as applied to physicians.
V. CONCLUSION
We affirm Heaton’s convictions. 25
AFFIRMED.
25 Heaton does not appeal his 72-month sentence.