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March 2, 2022

Rounding up some reviews of SCOTUS argument in appeals by doctors convicted of opioid drug dealing

As previewed in this prior post, the Supreme Court heard oral argument in two cases on Tuesday morning, Ruan v. United States and Kahn v. United States, which explored the proper legal standards when the federal government looks to prosecute doctors as drug dealers.  I have a chance to listen to part of the argument, and it was both fascinating and frustrating for all sorts of reasons — e.g., the regular use of speeding laws as a hypothetical to explore mens rea standards for a statute in which Congress expressly requires a person to act "knowingly or intentionally" struck me as deeply misguided.  The transcript is available here, and here is a round-up of some review of the argument:

From the AP, "Justices seem to favor docs convicted in pain pill schemes"

From the Courthouse News Service, "Justices grapple with drug charges for pill-mill doctors"

From The Hill, "Supreme Court grapples with drug-dealing convictions for opioid prescribers"

From Reuters, "U.S. Supreme Court mulls 'pill mill' doctors' opioid convictions"

From SCOTUSblog, "In opioids “pill mill” case, justices grapple with physician intent"

From the portion of the oral argument that I was able to listed to, I came away with a sense that the doctor defendants have a reasonable chance of prevailing.  

March 2, 2022 at 05:46 PM | Permalink


I am peculiarly interested in these cases because they offer salvation (by way of a Petition for a Writ of Error Coram Nobis) for my friend, Ali Sawaf, a former Kentucky urologist who was convicted in 2001 of being a "Script Doctor" in the Eastern District of Kentucky and sentenced to serve 20 years [the statutory maximum sentence under 21 U.S. Code section 841(b)(1)(C)]. Following 5 years of litigation and a successful appeal to the 6th Circuit Court of Appeals, Dr. Sawaf was granted a Habeas Corpus immediate release, after serving 13.5 years in prison. His case was bizarre in many respects. It was the first Federal criminal trial for the District Judge [who had just been confirmed by the Senate], for the AUSA and for Defense Counsel (who was only 3 years out of law school). A critical mistake was made when the Government presented no evidence concerning drug quantity at sentencing. Instead, the prosecutor asked the Judge to extrapolate from the testimony of the Governments expert witness at trial. He had testified that he had reviewed a sample of 50 patient files out of more than 2,000 total files, and found no support for the narcotics prescriptions written in those 50 files. The Judge unConstitutionally extrapolated to every pill of narcotics written for all 2,000+ patients for determining drug quantity at sentencing. This led to a pill count so large that Dr. Sawaf received the 20 year maximum sentence. His young defense lawyer failed to object to preserve the error and failed to raise it in the initial direct appeal. Ultimately, Dr. Sawaf ended up with 3 direct appeals to the 6th Circuit. His second appeal was summarily reversed and remanded for re-sentencing because the Judge refused to permit Sawaf to allocute at his second sentencing hearing. Ultimately, Habeas Corpus was granted based upon ineffective assistance of counsel at plea bargaining. In telling Sawaf to turn down the Government's 41-month plea bargain offer, defense counsel failed to provide Sawaf of any estimate of the maximum sentence he might be facing if he went to trial and lost (which is what happened). After turning down a 41-month plea offer based upon the advice of counsel, Sawaf was shocked to receive 20 years following conviction at trial.

Posted by: Jim Gormley | Mar 3, 2022 12:46:24 PM

Jim Gormley --

Many aspects to that interesting story. The one that most struck me is this: We are often lectured that plea bargaining is an oppressive prosecutorial tool to coerce defendants and swell the "carcereal state." In the case you discuss, the court concluded that defense counsel was a dunce for NOT urging his client to take the government's offer.

Kinda looks like government-sponsored plea deals are the essence of evil -- except when they aren't.

Posted by: Bill Otis | Mar 3, 2022 1:40:40 PM

@Bill Otis: I don't see any contradiction there. Even if this plea deal was a good one, the defendant can't be expected to evaluate it if his counsel never told him the risk of going to trial.

Posted by: Marc Shepherd | Mar 4, 2022 7:40:10 AM

Bill Otis -- Dr Ali Sawaf's young defense lawyer (3 years out of law school and trying his first ever Federal criminal case), Russell Alred, was a DUNCE! Curiously, in finding ineffective assistance of counsel at plea bargaining, the Sixth Circuit's opinion never mentions Alred's name. After Dr. Sawaf was convicted, Sawaf's daughter-in-law, Stephanie Sawaf, who is both an attorney (she practiced as a Ky. state public defender) and a physician, visited Mr. Alred at his office to inquire how much time Dr. Sawaf might be facing at sentencing. Mr. Alred responded that he was uncertain, since he had not yet received his newly-ordered copy of the Federal Sentencing Guidelines Manuel in the mail. Thus, it became clear that at the time Alred had advised Sawaf not to take the Government's plea offer (because he thought he could get an acquittal based upon entrapment by undercover police officers), Alred did not even own the book he might have consulted to give Sawaf an estimate of the length of sentence that he might face if he went to trial and was convicted. Three years later, Alred (then 6 years out of law school) became the Circuit Judge of Harlan County, Kentucky, where he also ran amuck. Ultimately, he was removed from office as a Judge by the Kentucky Judicial Conduct Commission and the Kentucky Supreme Court. You can read the 63-page long opinion in Russell D. Alred v. Commonwealth of Kentucky, Judicial Conduct Commission, which is published in the S.W.3d Reporter. It is also obscene that it took 5 years to litigate Dr. Sawaf's habeas corpus motion (2255), when the ultimate outcome was quite clear under existing 6th Circuit precedents. District Court Judge Karen Caldwell sat on the 2255 Motion for more than 3 years, before ruling against him. It took Judge Caldwell more than 7 months after the evidentiary hearing for Judge Caldwell to prepare and enter a written order. It took more than a year to get Judge Caldwell reversed on appeal to the 6th Circuit. Even after she had been ordered by the 6th Circuit to grant Dr. Sawaf a habeas corpus remedy, Caldwell refused to grant Dr. Sawaf a bond, so that he could walk out of prison in Memphis and voluntarily come to Court in Lexington to be re-sentenced to "time served". Judge Caldwell avoided us appealing her bond decision by simply not ruling upon the Bond Motion between June 30and September 23 (re-sentencing). She kept Dr. Sawaf in custody as long as possible, because he had embarrassed her at the 6th Circuit. Even after Sawaf was told by the Judge that he was "free to go" after re-sentencing, the U.S. Marshals told Sawaf that he could not leave the Courthouse in his green BOP jumpsuit that he had come to court in. I had to take his family to WalMart to buy him an entire suit of clothes (including underwear and shoes), so that the U.S. Marshals would finally let him leave the Courthouse in September 2014.

Posted by: Jim Gormley | Mar 7, 2022 10:48:29 AM

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