United States v. Hitzig

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4895
PIETR HITZIG,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
J. Frederick Motz, District Judge.
(CR-99-276-JFM)
Argued: February 24, 2003
Decided: April 14, 2003
Before TRAXLER and SHEDD, Circuit Judges, and
C. Arlen BEAM, Senior Circuit Judge of the
United States Court of Appeals for the Eighth Circuit,
sitting by designation.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Barry Coburn, COBURN & SCHERTLER, Washington,
D.C., for Appellant. Christine Manuelian, Assistant United States
Attorney, Baltimore, Maryland, for Appellee. ON BRIEF: Thomas
M. DiBiagio, United States Attorney, Baltimore, Maryland, for
Appellee.
2 UNITED STATES v. HITZIG
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Pietr Hitzig appeals his judgment of conviction on thirty-four
counts of illegally dispensing controlled substances in violation of 21
U.S.C. § 841(a)(1). He contends that the district court erred in
instructing the jury and in considering his motions for judgment of
acquittal because it did not require the government to prove, as an
essential element of the crimes charged, that he did not have a legiti-
mate medical purpose for dispensing the controlled substances. We
disagree with his contention and, accordingly, affirm.
I
Hitzig was, at times pertinent to the case, a physician who was
authorized by the United States to dispense controlled substances.1 In
1992, Hitzig began promoting a medical protocol that he developed
involving the combination of fenfluramine and phentermine
("fen/phen"), both of which were approved by the FDA many years
ago for use separately in the treatment of weight loss. By 1993, Hit-
zig’s practice was limited solely to prescribing fen/phen. Hitzig
believed that the use of fen/phen would help balance certain chemi-
cals in the brain (dopamine and serotonin), and he promoted his pro-
tocol as being a cure-all for most illnesses, including cancer, AIDS,
psychiatric illness, asthma, lupus, multiple sclerosis, and Gulf War
syndrome.
1
In December 1998, the Maryland Board of Physician Quality Assur-
ance suspended Hitzig’s license based on findings that he had engaged
in sexual and professional misconduct against various patients. Hitzig
surrendered his Maryland license in February 1999 and, in doing so, he
admitted that he had engaged in unprofessional conduct. Hitzig then
moved to California and treated patients there until June 1999.
UNITED STATES v. HITZIG 3
After a two-year investigation, which included undercover buys,
the execution of federal search warrants, and review of thousands of
pages of subpoenaed records, the government charged Hitzig under
§ 841(a)(1) with thirty-two counts of illegally dispensing phentermine
and fenfluramine, one count of illegally dispensing oxycodone, and
one count of illegally dispensing hydromorphone. All of these are
controlled substances. These counts involved Hitzig’s interaction with
twelve patients. For each of the counts, the government charged that
Hitzig dispensed these controlled substances "not for a legitimate
medical purpose in the usual course of professional medical practice
and beyond the bounds of professional medical practice."
Hitzig’s trial lasted approximately five weeks. The government
presented the testimony of the patients referenced in the indictment
(and/or their relatives), various physicians and medical personnel, law
enforcement officers, members of Hitzig’s office staff, and other
patients. The government also introduced into evidence many of Hit-
zig’s office records and patient medical records.
The evidence at trial established that Hitzig dispensed the con-
trolled substances identified in the indictment. Moreover, the govern-
ment’s expert witnesses testified that in doing so, Hitzig acted beyond
the bounds of professional medical practice in numerous ways.
According to these experts, Hitzig exceeded the bounds of profes-
sional medical practice by: failing to conduct physical examinations;
failing to take adequate medical histories; failing to maintain a proper
record of patients’ medical histories and treatments; failing to docu-
ment medications given to patients; failing to document the bases for
medicating patients; failing to administer baseline laboratory tests for
assessing the condition of patients (e.g., EKG, blood chemistry panel,
TB test for an alcoholic, urinalysis for a drug addict); failing to ade-
quately monitor patients during the course of their treatment; direct-
ing patients with a history of drug abuse to self-regulate their
medications; failing to document the toxic effects of prescribed medi-
cations; failing to advise patients that the use of fen/phen to treat con-
ditions other than weight loss was experimental; using a rapid
screening device for measuring psychiatric distress as a basis for diag-
nosing illness; excessively dosing patients beyond recommended
levels without basis; continually advising patients to increase their
medications in response to problems with the medications; and engag-
4 UNITED STATES v. HITZIG
ing in other improper conduct, such as violating rules of patient confi-
dentiality by sharing patient medical information with others,
encouraging patients to share medications, using drugs and alcohol in
the presence of patients, and engaging in inappropriate sexual behav-
ior with patients.
Hitzig acknowledges that some of his patients "had seriously nega-
tive outcomes," some "were not monitored aggressively enough" by
him, and that he occasionally "interacted inappropriately with certain
patients." Brief of Appellant, at 10. Hitzig’s counsel conceded at oral
argument that the government sufficiently proved that Hitzig’s con-
duct as charged in the indictment was beyond the bounds of profes-
sional medical practice. Nevertheless, Hitzig argues (as he did at trial)
that his conduct, while perhaps unorthodox, was done in good faith
as a physician.
Consistent with this theory, Hitzig moved for judgment of acquittal
at the close of the government’s case-in-chief, arguing that the gov-
ernment had failed to prove (among other things) that he had acted
without a legitimate medical purpose, which he contends is an essen-
tial element of the crimes for which he was indicted. The district court
denied the motion, holding that the government was only required to
prove (in addition to other elements) that Hitzig had acted either with-
out a legitimate medical purpose or beyond the bounds of profes-
sional medical practice. Hitzig renewed his motion at the close of all
of the evidence. The district court again denied the motion.
Hitzig requested that the district court instruct the jury that the gov-
ernment was required to prove that he acted without a legitimate med-
ical purpose. However, the district court adhered to its prior
determination that the government does not have this burden, and
over Hitzig’s objection, it instructed the jury accordingly.
The jury convicted Hitzig on all counts. The district court sen-
tenced him to concurrent terms of 45 months imprisonment on each
count, to be followed by a term of 3 years supervised release, and
imposed a special assessment of $3,300.00.
II
Section 841(a)(1) provides in pertinent part: "Except as authorized
. . ., it shall be unlawful for any person knowingly or intentionally to
UNITED STATES v. HITZIG 5
. . . distribute, or dispense, . . . a controlled substance. . . ." We have
set forth generally the elements necessary for conviction under this
statute as being (1) a knowing or intentional attempt to distribute or
dispense (2) a substance known to be controlled (3) in an unautho-
rized manner. United States v. Daniel, 3 F.3d 775, 778 (4th Cir.
1993).
A.
We first address Hitzig’s contention that the district court errone-
ously instructed the jury. Hitzig challenges the jury instructions only
as they pertain to the third of the § 841(a)(1) elements. He argues that
the district court improperly instructed the jury in a manner that
allowed it to convict him for conduct that might amount to medical
malpractice, but does not rise to the level of criminality. More specifi-
cally, Hitzig asserts that the linchpin of criminality in this circum-
stance is the requirement that a physician "be essentially just like a
drug dealer: that he or she have issued the prescriptions solely to
make money, rather than in pursuit of any legitimate medical under-
taking." Brief of Appellant, at 51. Without this requirement, Hitzig
asserts that the statutes underlying his conviction are void for vague-
ness or otherwise violative of due process. We review de novo the
legal question of whether a district court properly instructed a jury on
the statutory elements of an offense. United States v. Rahman, 83
F.3d 89, 92 (4th Cir. 1996).
With respect to physicians, we have held that establishing the third
element — i.e., the dispensation of a controlled substance is unautho-
rized — "requires proof that the charged conduct falls outside the
boundaries of the [physician’s] professional practice." Daniel, 3 F.3d
at 778.2 We have noted that there are no specific guidelines concern-
ing what is required to support a conclusion that a physician acted
outside the usual course of professional practice, and that a case-by-
case analysis of evidence must be made to determine whether a rea-
sonable inference of guilt may be drawn from specific facts. United
2
Our formulation of this required showing is based on the Supreme
Court’s holding in United States v. Moore, 423 U.S. 122, 124 (1975),
"that registered physicians can be prosecuted under § 841 when their
activities fall outside the usual course of professional practice."
6 UNITED STATES v. HITZIG
States v. Singh, 54 F.3d 1182, 1187 (4th Cir. 1995). Applying this
standard, we have recognized that the government may meet its bur-
den of proving this element by establishing that the physician’s
actions were not for legitimate medical purposes in the usual course
of professional medical practice or were beyond the bounds of profes-
sional medical practice. Id.; United States v. Tran Trong Cuong, 18
F.3d 1132, 1141 (4th Cir. 1994).3
Pertinent to our review, the district court instructed the jury that the
government was required to prove beyond a reasonable doubt that
Hitzig knowingly and intentionally dispensed the controlled sub-
stances charged in the indictment "other than for a legitimate medical
purpose, and/or his actions were not within the bounds of professional
medical practice." In defining the knowledge and intent components
of the charge, the district court instructed the jury that a person must
have acted willfully in order to be held criminally liable;4 that in con-
sidering willfulness, the jury could consider whether a person "delib-
erately closed his eyes to what otherwise would have been obvious to
him;" and that "a physician’s subjective belief that he was acting for
the best interest of his patients does not in and of itself constitute a
complete defense."
Concerning the third of the three necessary elements, the district
court specifically instructed:
The final element the government must prove as to each
count beyond a reasonable doubt is that the defendant dis-
pensed the specific controlled substance other than for a
legitimate medical purpose or not within the bounds of pro-
fessional medical practice. It’s actually and/or not within the
bounds of professional medical practice.
3
In Daniel, we held that an allegation that the physician attempted to
dispense a controlled substance "not . . . for a legitimate medical pur-
pose" satisfied the requirement that the dispensation must be "outside the
boundaries of professional practice." 3 F.3d at 778.
4
The district court defined the term "willfully" as "to act with knowl-
edge that one’s conduct is unlawful and with the intent to do something
the law forbids, that is to say with the bad purpose to disobey or disre-
gard the law."
UNITED STATES v. HITZIG 7
A physician’s own methods do not themselves establish
what constitutes medical practice. In determining whether
Dr. Hitzig’s conduct was within the bounds of professional
practice, you should, subject to the instructions I have
already given you concerning the credibility of experts and
other witnesses, consider the testimony you have heard
relating to what has been characterized during the trial as the
norms of professional practice.
You should also consider the extent to which, if at all, any
violation of professional norms you find to have been com-
mitted by Dr. Hitzig interfered with his treatment of his
patients and contributed to an overprescription and/or exces-
sive dispensation of controlled substances. You should con-
sider Dr. Hitzig’s actions as a whole and the circumstances
surrounding them.
A physician’s conduct may constitute a violation of applica-
ble professional regulations as well as applicable criminal
statutes. However, a violation of a professional regulation
does not in and of itself establish a violation of the criminal
law. As I just indicated, in determining whether or not Dr.
Hitzig is guilty of the crimes with which he is charged, you
should consider the totality of his actions and the circum-
stances surrounding them and the extent and severity of any
violations of professional norms you find he committed.
We hold that the district court’s jury instructions are consistent
with our precedent and are not improper. We reject Hitzig’s conten-
tion that the district court erred because it did not instruct the jury that
the government was required to prove that he both dispensed the con-
trolled substances not for a legitimate medical purpose in the usual
course of professional medical practice and in a manner that is
beyond the bounds of professional medical practice. Our precedent
makes it clear that the standard for criminal liability is that the physi-
cian’s conduct in dispensing a controlled substance "falls outside the
boundaries of the [physician’s] professional practice." Daniel, 3 F.3d
at 778. While the government may meet its burden of proving guilt
by showing that a physician dispensed a controlled substance for an
illegitimate purpose, the government is not required to make such a
8 UNITED STATES v. HITZIG
showing. See Singh, 54 F.3d at 1188 ("In sum, although the testimony
does not adduce compelling evidence that Dr. Singh prescribed with
malicious motive or the desire to make a profit, those motivations,
though common in § 841(a)(1) prosecutions, are not required to con-
vict").5
B.
Having concluded that the district court properly instructed the
jury, we now turn to Hitzig’s contention that the evidence is insuffi-
cient to support the verdict. In doing so, we view the evidence and the
reasonable inferences to be drawn therefrom in the light most favor-
able to the government, and we must sustain the verdict if any rational
trier of fact could have found the essential elements of the crimes
charged beyond a reasonable doubt. United States v. Lomax, 293 F.3d
701, 705 (4th Cir.), cert. denied, 123 S.Ct. 555 (2002).
Hitzig’s argument concerning the sufficiency of the evidence
hinges on his view concerning the government’s burden of proof.
Hitzig’s counsel conceded at oral argument that if (as we have found)
the government can meet its burden by establishing only that Hitzig
dispensed the controlled substances in a manner outside the bounds
of professional medical practice, then there is sufficient evidence in
the record to support the verdict. Notwithstanding his concession,
Hitzig argues that the government failed to present sufficient evidence
to establish that he also dispensed the controlled substances for an
illegitimate purpose and, for that reason, the verdict should not stand.
In light of our determination concerning the government’s burden
of proof and Hitzig’s concession concerning the sufficiency of the
evidence, and after our thorough review of the record, we hold that
the government presented more than sufficient evidence to establish
that Hitzig exceeded the bounds of professional medical practice in
dispensing the controlled substances charged in the indictment.
5
In Tran Trong Cuong, we approved an instruction that required the
jury to find that the physician acted without a legitimate medical purpose
and not in the usual course of medical practice, but we noted that the
instruction appears to be "more strict" than Moore requires. 18 F.3d at
1137-38.
UNITED STATES v. HITZIG 9
III
In conclusion, we hold that the district court properly instructed the
jury and that the evidence was sufficient to sustain the verdict.
Accordingly, we affirm.
AFFIRMED