United States District Court, D. Kansas
MEMORANDUM AND ORDER
THOMAS MARTEN, JUDGE
to Dismiss Indictment
Steven R. Henson has moved to dismiss the government's
indictment charging him with distributing and conspiring to
distribute controlled substances in violation of Title 21
U.S.C. § 841(a) and 21 U.S.C. § 846 of the
Controlled Substance Act (CSA), as well as non-drug related
offenses not at issue now. Specifically, the defendant
argues: (1) the language of the statute requiring controlled
substances be issued in the “usual course of his
professional practice” and for “a legitimate
medical purpose, ” is unconstitutionally vague as
applied to his case (Dkt. 268, at 1-2); and (2) the
indictment sets forth an “illegitimate standard of
medical care” to evaluate the defendant's actions
by preempting state law with an arbitrary federal standard.
(Dkt. 268, at 15). The Court finds these arguments
unpersuasive. Thus, the defendants motion to dismiss is
the strength or weakness of the government's case, or the
sufficiency of the government's evidence to support a
charge, may not be challenged by a pretrial motion.
United States v. King, 581 F.2d 800, 802 (10th
Cir.1978). An indictment should be tested solely on the basis
of the allegations made on its face, and such allegations are
to be taken as true. United States v. Sampson, 371
U.S. 75, 78-79, 9 L.Ed.2d 136 (1962). Courts should refrain
from considering evidence outside the indictment when testing
its legal sufficiency. United States v. Hall, 20
F.3d 1084, 1087 (10th Cir. 1994). “If contested facts
surrounding the commission of the offense would be of any
assistance in determining the validity of the motion, Rule 12
doesn't authorize its disposition before trial.”
United States v. Pope, 613 F.3d 1255, 1259 (10th
void-for-vagueness doctrine requires that a penal statute
define the criminal offense with sufficient definiteness that
ordinary people can understand what conduct is prohibited and
in a manner that does not encourage arbitrary and
discriminatory enforcement.” Smith v. Goguen,
415 U.S. 566, 39 L.Ed.2d 605 (1974). To sustain such a
challenge, “the complainant must prove that the
enactment is vague. [N]ot in the sense that it requires a
person to conform his conduct to an imprecise but
comprehensible normative standard, but rather in the sense
that no standard of conduct is specified at all.”
Coates v. City of Cincinnati, 402 U.S. 611, 614, 29
L.Ed.2d 214 (1971). “[V]agueness challenges to statutes
which do not involve First Amendment freedoms must be
examined in the light of the facts of the case
at hand.” United States v. Mazurie, 419 U.S.
544, 550, 42 L.Ed.2d 706 (1975) (emphasis added).
the defendant argues the statutory language of 21 U.S.C.
§ 841 et. seq. is “unconstitutionally
vague” as applied to this case, because it failed to
provide him with fair notice that his alleged conduct was
prohibited. The defendant asserts that, at the time the
indictment was brought, no federal regulations existed for
physicians treating chronic pain patients. Although the
Center for Disease Control and Prevention (CDC) did
promulgate such federal guidelines in 2016 this adoption
occurred after the defendant had been indicted. As such, the
defendant maintains he could not have consulted said
guidelines when the allegations brought against him took
place. (Dkt. 268, at 1). The defendant contends under the
standard set by the Supreme Court in Gonzalez v.
Oregon, 546 U.S. 243, 163 L.Ed.2d 748, (2006)., the
federal government has no business trying to define what
practices are and are not within the “course of
professional medical practice” or what constitutes a
“legitimate medical purpose.”
Supreme Court has explicitly held that “registered
physicians under the CSA may be prosecuted under 21 U.S.C.
§ 841, when their activities fall outside the usual
course of professional practice.” United States v.
Moore, 423 U.S. 122, 46 L.Ed.2d 333, (1975).
Additionally, the Supreme Court and our own circuit has
upheld convictions under the CSA for conduct similar to that
alleged by the government in the indictment. see
Moore, 423 U.S. 122 (1975) (evidence that the defendant
physician “gave inadequate physical examination or none
at all, ” “took no precautions against
[prescription] misuse or diversion, ” and “did
not regulate…dosage” was sufficient to prove
that “conduct exceeded the bounds of professional
practice “); see United States v. Jamieson,
806 F.3d 949 (10th Cir. 1986) (prescribing doctor
gave drugs when patients asked for them and wrote
prescriptions when patients took drugs more frequently than
directed); see United States v. Varma, 691 F.2d 460,
464 (10th Cir. 1982) (prescribing doctor took
incomplete medical histories and gave short and inadequate
as true all allegations laid out in the indictment, the Court
finds the CSA is not vague and the defendant had sufficient
notice the statute prohibited his alleged conduct. Neither
the Supreme Court nor the Tenth Circuit has stated that a
specific set of facts must be present to find that a
physician stepped outside his role and issued prescriptions
without a legitimate medical purpose. Instead, each Court has
required the fact finder to affirmatively determine that the
physician issued the drugs for an improper purpose following
a presentation of the evidence at trial.
Court finds no reason the present case should be any
indictment is deemed constitutionally sufficient if it (1)
contains the essential elements of the offense intended to be
charged, (2) sufficiently apprises the accused of what he
must be prepared to defend against, and (3) enables the
accused to plead an acquittal or conviction under the
indictment as a bar to any subsequent prosecution for the
same offense. Russell v. United States, 369 U.S.
749, 763-64, 8 L.Ed.2d 240 (1962); United States v.
Walker, 947 F.2d 1439, 1441 (10th Cir.1991). “For
this, facts are to be stated… and these must be set
forth in the indictment with reasonable particularity of
time, place, and circumstances.” United States v.
Hess, 124 U.S. 483, 487-88, 31 L.Ed. 516 (1888).
the defendant argues that, while no federal guidelines
existed at the time of the defendant's alleged
violations, the Kansas legislature had delineated
rules and laws related to the treatment of pain patients. As
such, the defendant argues, the indictment is insufficient
because it attempts to federally criminalize the way in which
the defendant ...