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September 12, 2022

"Ruan v. United States: Implications for Criminal Law, Health Care, and Beyond"

606e9d1f-2ef6-49f0-bbd7-fcb1b4ce9f73The title of this post is the title of this great panel discussion hosted by the Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law which is scheduled for midday on Tuesday, September 20.  Folks can and should register here for this event, which is described this way on this event page:

What must prosecutors prove about a defendant’s mental state in order to convict them of unauthorized distribution of controlled substances under federal drug laws?  In the case of Ruan v. United States, the Supreme Court ruled that the Government must prove the defendant knowingly or intentionally acted in an unauthorized manner.  But because the defendants in this case were medical doctors involved in questionable opioid prescribing practices, the case has generated an array of public policy questions.  The Government, stressing opioid overdose deaths and the broad harms of the opioid epidemic, argued the law should be interpreted to apply an objective standard for criminal liability.  The doctors, and many amici briefs, argued that an objective standard could criminalize merely careless prescribing and could deter responsible doctors from trying any novel medical therapies that had not yet been accepted by traditional medical practice.

Join the Drug Enforcement and Policy Center and our panel of experts as they discuss the doctrines and broader policies involved in the Ruan case and the implications for criminal law and beyond.


  • Douglas A. Berman, Newton D. Baker-Baker & Hostetler Chair in Law; Executive Director of the Drug Enforcement and Policy Center
  • Kelly Dineen, Associate Professor of Law, Director of the Health Law Program, Creighton University School of Law
  • Martin Fried, Clinical Assistant Professor of Internal Medicine, Wexner Medical Center, The Ohio State University
  • Jennifer Oliva, Professor of Law, UC Hastings Law


Patricia Zettler, Associate Professor of Law, Ohio State University Moritz College of Law

September 12, 2022 at 11:16 AM | Permalink


Doug, you may recall that I litigated a 2255 habeas corpus case involving a so-called "script doctor" from Eastern Kentucky for 5 years before the Sixth Circuit reversed Judge Karen Caldwell (USDC for the E.D. Ky.) and ordered her to grant Dr. Sawaf habeas corpus relief. He served 13.5 years of a 20 year (statutory maximum) sentence after being convicted as a physician for violating 21 U.S. Code 841(b)(1)(C). He was re-sentenced to "time served" based upon ineffective assistance of counsel at plea bargaining. We argued hard that the 13.5 years of "time served" was inappropriate where he had turned down a plea offer of 41 months based upon bad legal advice, where defense counsel failed to tell him he was facing 20 years if he was convicted at trial. Defense counsel also failed to object or appeal the Government's failure to put up evidence at sentencing concerning the quantity of drugs involved. See, Ali H. Sawaf v. United States, 570 F. App'x. 544 (6th Cir. 2014) (unpublished). Based upon the new Supreme Court holding in Ruan v. United States, No. 20-1410 (U.S. June 27, 2022), it appears that the jury at Dr. Sawaf's 2001 trial was improperly instructed on the intent the Government had to prove beyond a reasonable doubt to convict Dr. Sawaf for prescribing narcotics outside the normal course of medical practice. Thus, it appears that Dr. Sawaf (and perhaps a few dozen other physicians) can file a Petition for a Writ of Error Coram Nobis (available under the All Writs Act, 28 U.S.C. 1651) to get his Section 841(b)(1)(C) conviction set aside and get a new trial, based upon the erroneous jury instructions on the intent the Government had to prove to convict him. For the standards for filing a Petition for a Writ of Error Coran Nobis, see, United States v. Morgan, 346 U.S. 502, 506 (U.S. 1954) and Flippins v. United States 747 F.2d 1089, 1091 (6th Cir. 1984) (per curiam).

Posted by: Jim Gormley | Sep 13, 2022 3:38:46 PM

The fascinating Fourth Circuit opinion in United States v. Lesane, 40 F.4th 191 (4th Cir. 2022), reversing the District Court's denial of coram nobis, and saying that there is no time limit in seeking coram nobis, where the allegation is that the defendant is actually innocent of the crime, so "delay" is not an issue. This case lays out a clear road map of what justifies coram nobis and how to seek it. I believe that some physicians who went to trial and were convicted of violating 21 U.S. Code section 841(b)(1) based upon an erroneous intent (mens rea) jury instruction (per the June 2022 Ruan Supreme Court decision) should be able to get their Federal convictions vacated and set aside via a Petition for a Writ of Error Coram Nobis, under the All Writs Act, 28 U.S. Code section 1651.

Posted by: Jim Gormley | Jun 19, 2023 1:57:57 PM

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