United States v. Hurwitz , 459 F.3d 463 ( 2006 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
WILLIAM ELIOT HURWITZ,
Defendant-Appellant.
AMERICAN ACADEMY OF PAIN
MEDICINE; THE ASSOCIATION OF
AMERICAN PHYSICIANS & SURGEONS;
THE AMERICAN PAIN FOUNDATION;
 No. 05-4474
THE NATIONAL PAIN FOUNDATION;
THE NATIONAL FOUNDATION FOR THE
TREATMENT OF PAIN; NATIONAL
ASSOCIATION OF CRIMINAL DEFENSE
LAWYERS; RUSSELL K. PORTENOY;
RICHARD PAYNE; PEGGY COMPTON;
CELESTE JOHNSON; ROBERT
TWILLMAN; WILLIAM L. MARCUS,
Amici Supporting Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonard D. Wexler, Senior District Judge, sitting by designation.
(CR-03-467)
Argued: March 17, 2006
Decided: August 22, 2006
Before WIDENER and TRAXLER, Circuit Judges,
and Cameron McGowan CURRIE, United States District Judge for
the District of South Carolina, sitting by designation.
2 UNITED STATES v. HURWITZ
Vacated and remanded by published opinion. Judge Traxler wrote the
majority opinion, in which Judge Currie joined. Judge Widener wrote
a concurring and dissenting opinion.
COUNSEL
ARGUED: Lawrence S. Robbins, ROBBINS, RUSSELL, ENG-
LERT, ORSECK & UNTEREINER, L.L.P., Washington, D.C., for
Appellant. Richard Daniel Cooke, Special Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alex-
andria, Virginia, for Appellee. ON BRIEF: Donald J. Russell,
Damon W. Taaffe, ROBBINS, RUSSELL, ENGLERT, ORSECK &
UNTEREINER, L.L.P., Washington, D.C., for Appellant. Paul J.
McNulty, United States Attorney, Gene Rossi, Assistant United States
Attorney, Mark D. Lytle, Assistant United States Attorney, Alexan-
dria, Virginia, for Appellee. Jack R. Bierig, SIDLEY AUSTIN
BROWN & WOOD, L.L.P., Chicago, Illinois; Eamon P. Joyce, SID-
LEY AUSTIN BROWN & WOOD, L.L.P., Washington, D.C., for
Amicus Curiae, American Academy of Pain Medicine, Supporting
Appellant. Andrew L. Schlafly, Far Hills, New Jersey, for Amicus
Curiae, The Association of American Physicians & Surgeons, Sup-
porting Appellant. Samuel Rosenthal, CURTIS, MALLET-
PREVOST, COLT & MOSLE, L.L.P., Washington, D.C., for Amici
Curiae, The American Pain Foundation, The National Pain Founda-
tion, and The National Foundation for the Treatment of Pain, Support-
ing Appellant. Joshua L. Dratel, Co-Chair, NACDL, Amicus
Committee, New York, New York; Robert P. Marcovitch, Atlanta,
Georgia, for Amicus Curiae, National Association of Criminal
Defense Lawyers, Supporting Appellant. David T. Goldberg, New
York, New York; Sean H. Donahue, Washington, D.C., for Amici
Curiae, Russell K. Portenoy, Richard Payne, Peggy Compton, Celeste
Johnston, Robert Twillman, and William L. Marcus, Supporting
Appellant.
UNITED STATES v. HURWITZ 3
OPINION
TRAXLER, Circuit Judge:
A jury convicted Dr. William E. Hurwitz of multiple counts of
drug trafficking for prescribing narcotic pain medicine in violation of
21 U.S.C.A. §§ 841(a)(1) and 846 (West 1999). Hurwitz appeals,
arguing, inter alia, that the district court improperly admitted evi-
dence recovered in a search of his office and incorrectly instructed the
jury on the law. Although we affirm the district court’s decision to
admit the evidence seized in the search, we conclude that the district
court did not properly instruct the jury on the controlling law. Accord-
ingly, we vacate Hurwitz’s convictions and remand for a new trial.
I.
Hurwitz is a medical doctor who operated a practice in McLean,
Virginia, dedicated to the treatment of patients suffering from pain.
Hurwitz’s approach to pain management involved the use of opioids,
including methadone, oxycodone (typically Oxycontin, a brand-name
version of a time-release form of oxycodone), and hydromorphone
(usually the brand-name Dilaudid). Many of Hurwitz’s patients were
on a protocol that used very high doses of opioids to control their
pain.
Hurwitz came to the attention of federal authorities in 2002, after
several of his patients were arrested for attempting to sell illicit and
prescription drugs. The patients identified Hurwitz as the source of
their prescription drugs, and they began cooperating with the investi-
gators. The information these patients provided eventually led to Hur-
witz’s indictment on numerous drug-related charges — one count of
conspiracy to engage in drug trafficking, see 21 U.S.C.A. § 846; one
count of engaging in a continuing criminal enterprise, see 21
U.S.C.A. § 848 (West 1999); two counts of healthcare fraud, see 18
U.S.C.A. § 1347 (West 2000); and 58 counts of drug trafficking,
including two counts each of drug-trafficking resulting in serious bod-
ily injury and drug-trafficking resulting in death, see 21 U.S.C.A.
§ 841(a)(1).
4 UNITED STATES v. HURWITZ
The government’s evidence at trial painted a picture of a doctor
who operated well outside the boundaries of usual medical practice.
The government contended that Hurwitz was little more than a com-
mon drug dealer who operated out of a medical office rather than on
a street corner. The government’s expert witnesses testified that a
doctor who knowingly prescribed opioids to an addict or to a patient
the doctor knew was selling the drugs on the street was acting outside
the bounds of legitimate medical practice, and the government pre-
sented compelling evidence suggesting that Hurwitz did just that —
continued to prescribe large quantities of opioids to patients that he
knew were selling the drugs or abusing them (for example, by inject-
ing drugs that were directed to be taken orally).
Several of the patients who were cooperating with the authorities
tape-recorded their appointments with Hurwitz. In one recording,
Hurwitz indicated that it was "not inconceivable" to him that some
patients were "selling part of their medicines so they could buy the
rest." S.A. 101. In another recording Hurwitz stated, "so I have kind
of a huge conspiracy of silence because I, in fact, even, even knowing
what I’ll call the suspicious nature of you guys, assumed that you
weren’t stupid enough to — to not protect my practice and preserve
your own . . . access to medications." S.A. 104. Hurwitz told another
patient to get an x-ray or an MRI "for the files to cover our butts."
J.A. 3089.
The government presented evidence of what seemed to be extraor-
dinarily high doses of opioids prescribed by Hurwitz. An expert wit-
ness for the government testified that high-dose opioid therapy
typically involved doses of the equivalent of approximately 195 milli-
grams of morphine a day, although there had been a study involving
doses of 350 milligrams a day and another involving doses of up to
two grams a day. J.A. 2456.
The doses prescribed by Hurwitz, however, vastly exceeded those
quantities. Hurwitz often wrote prescriptions calling for a patient to
take thirty 80-milligram Oxycontins per day. For Hurwitz’s patients
in the high-dose program, a prescribed opioid dosage of 100 pills per
day was not uncommon. Hurwitz testified that between 1998 and
2002, the median daily dosage for his patients was approximately
2000 milligrams (2 grams) of morphine or its equivalent. (Because
UNITED STATES v. HURWITZ 5
Oxycontin is stronger than morphine, Hurwitz testified that 2000 mil-
ligrams of morphine would translate to about 1000 milligrams of
Oxycontin.) Between July 1999 and October 2002, Hurwitz pre-
scribed to one patient a total of more than 500,000 pills, which
amounted to more than 400 pills per day. Towards the end of the time
that Hurwitz treated the patient, the prescribed dosage included 1,600
5-milligram Roxicodones (a non-timed release version of Oxycontin)
per day.1 Still another patient was prescribed 10,000 Roxicodones as
a one-month supply. Patients with limited visible sources of income
spent tens of thousands of dollars a month on narcotics prescribed by
Hurwitz.
The government also presented evidence showing that Hurwitz had
previously been disciplined for improper prescribing practices. In
1992, the District of Columbia Board of Medicine had reprimanded
Hurwitz and placed him on probation for prescribing drugs when not
authorized to do so and for failing to conform to the prevailing stan-
dards of acceptable medical practice. In 1996, the Virginia Board of
Medicine revoked his license upon finding that he had prescribed
excessive amounts of controlled substances. The Virginia Board also
required Hurwitz to attend classes on proper prescription practices
and how to detect when patients were trying to use him as a source
for prescription drugs rather than a doctor to treat pain.
Not surprisingly, the defense painted an entirely different picture.
Hurwitz and his witnesses contended that the high-dose protocol was
a proper medical procedure for treating patients with intractable pain.
They testified that the body quickly develops resistance to the danger-
ous side-effects of opioids (such as respiratory depression), which
then permits an escalation of the dosage until pain relief is obtained.
One expert testified that once a patient becomes tolerant of the side-
effects, there is effectively "no ceiling" on the quantity of opioids that
can be prescribed if necessary to control pain. J.A. 3975. That expert
also testified that many patients over time will require an increase in
their opioid dosage in order to maintain control of their pain. Hur-
witz’s experts also testified that there is no medical reason to stop
treating a patient for pain simply because that patient may be abusing
1
At trial, Hurwitz contended that the 1,600 pills per day dosage was
the product of a clerical error.
6 UNITED STATES v. HURWITZ
illicit drugs and that, in some cases, stopping such treatment may
even be more problematic.
Hurwitz testified about his practices and the patients he treated. He
discussed how patients were generally asked to fill out questionnaires
and submit medical records before receiving treatment and how he
often included patients’ family members during visits as a part of his
approach to treating pain. Hurwitz participated in an e-mail discussion
group with other professionals about how to approach various situa-
tions in pain treatment, and he would confer with other physicians
concerning the treatment of certain patients. Hurwitz also discussed
how he based his pain-management approach on what he learned at
pain management conferences and what he understood other doctors
would do.
Some of Hurwitz’s patients testified on his behalf, explaining that
Hurwitz was the only physician who had managed to relieve their
debilitating pain. Molly Shaw, for example, discussed her futile
attempts to treat what the Mayo Clinic had diagnosed as neuropathic
pain, a pain so severe that it forced her to retire at age 47 and remain
almost completely bedridden. She testified that Hurwitz’s treatments
allowed her to regain her life and live in considerably less pain. The
patients’ testimony, as well as the testimony of Hurwitz’s staff, por-
trayed Hurwitz as a caring physician whose sole focus was providing
pain relief for his patients.
Hurwitz was convicted of one count of drug trafficking conspiracy,
one count of drug trafficking resulting in death, two counts of drug
trafficking resulting in serious bodily injury, and forty-six counts of
drug trafficking. The jury acquitted Hurwitz of six counts of drug traf-
ficking, as well as one count of engaging in a continuing criminal
enterprise and two counts of healthcare fraud. The jury failed to reach
a decision on the remaining drug trafficking counts. The district court
sentenced Hurwitz to 25 years in prison. This appeal followed.
II.
We first consider Hurwitz’s claims that the district court errone-
ously denied his motion to suppress the evidence recovered from the
search of his office. Before we address the substance of Hurwitz’s
UNITED STATES v. HURWITZ 7
suppression claims, however, a review of some background facts is
necessary.
A.
As mentioned above, federal authorities began monitoring Hur-
witz’s practice in 2002, after several of Hurwitz’s patients were
arrested on drug charges. On the basis of the information obtained
during the investigation, federal authorities obtained search warrants
for Hurwitz’s home and office.2
In support of its warrant application, the government relied on the
affidavit of Agent Fulton S. Lucas, a Task Force Officer with the
Drug Enforcement Administration’s High Intensity Drug Trafficking
Group for Northern Virginia. Agent Lucas’s supporting affidavit
explained that the investigation of Hurwitz stemmed from reports by
local law enforcement agencies of "an unusually high incident of
arrests of individuals for distributing prescription narcotics in the
Northern and Southwest region of the state of Virginia, and rural
areas of West Virginia and Tennessee." J.A. 78. According to Agent
Lucas, "[a] significant number of these arrests resulted in the coopera-
tion of individuals who revealed that the source of their prescription
narcotics was Dr. William E. Hurwitz of McLean, Virginia." J.A. 78.
The affidavit provided details about the investigation of Hurwitz,
including evidence obtained with the assistance of five of Hurwitz’s
patients.
Agent Lucas submitted the standard federal warrant application
form, which prompts the applicant to "describe the person or property
to be seized." J.A. 73. Agent Lucas’s description provided as follows:
"See Attachment A of Affidavit," referring to his supporting affidavit.
J.A. 73. In turn, Attachment A (the "Attachment") listed specific
items the government sought permission to seize "related to Dr. Hur-
witz’[s] medical practice which constitute evidence [of drug traffick-
ing]" including "[p]atient medical and billing files." J.A. 94. The
Attachment did not identify any individual patient files.
2
Hurwitz does not challenge the legality of the warrant authorizing the
search of his residence.
8 UNITED STATES v. HURWITZ
The magistrate judge granted the application, granted the govern-
ment’s motion to seal the application and accompanying affidavit, and
issued a search warrant for Hurwitz’s medical practice.3 On the face
of the warrant — in the space reserved for a description of the items
to be seized — the words "See Attachment" had been entered. The
search warrant indicated that Agent Lucas’s affidavit established
probable cause to seize the property described in the reserved space
on the search warrant. The government executed the search warrant,
seizing all of Hurwitz’s patient files.
B.
Hurwitz challenges the validity of the search warrant on two
grounds. He contends that the search warrant was invalid because it
failed to identify the items to be seized with sufficient particularity,
and that the search warrant was fatally overbroad. We review a dis-
trict court’s disposition of a motion to suppress de novo. See United
States v. Stevenson, 396 F.3d 538, 541 (4th Cir.), cert. denied, 544
U.S. 1067 (2005).
(1)
The Fourth Amendment instructs that "no Warrants shall issue, but
upon probable cause, supported by Oath or affirmation, and particu-
larly describing the place to be searched, and the persons or things to
be seized." U.S. Const. amend. IV. The requirement that a search war-
rant describe with particularity the items to be seized ensures that a
citizen is not subjected to "a general, exploratory rummaging in [his
personal] belongings." Coolidge v. New Hampshire, 403 U.S. 443,
467 (1971). Significantly, the particularity requirement applies to the
warrant, as opposed to the application or the supporting affidavit sub-
mitted by the applicant. See Groh v. Ramirez, 540 U.S. 551, 557
(2004); see also Owens ex rel. Owens v. Lott, 372 F.3d 267, 274 (4th
Cir. 2004). Thus, "[t]he fact that the application adequately described
3
The magistrate judge found that "revealing the material sought to be
sealed would jeopardize an ongoing criminal investigation" and therefore
concluded that the "application[] for the search warrant[], [and] the affi-
davit in support of the . . . search warrant[]" should be sealed. J.A. 98.
UNITED STATES v. HURWITZ 9
the ‘things to be seized’ does not save the warrant from its facial
invalidity." Groh, 540 U.S. at 557.
Hurwitz first argues that the search warrant was invalid because it
failed to particularly identify the property to be seized. The search
warrant did not, on its face, describe any of the property to be seized;
instead, it simply referred to the Attachment to Lucas’s affidavit that
was submitted with the application for the search warrant. Hurwitz
claims that the executing officers carried the warrant at the time of the
search but not the Attachment or the affidavit, both of which were
sealed. Hurwitz argues that because the Attachment did not accom-
pany the warrant at the time of the search, the particulars contained
in the Attachment cannot be construed to be part of the search warrant.4
The particularity requirement of the Fourth Amendment may be
satisfied by cross-reference in the warrant to separate documents that
identify the property in sufficient detail. See Groh, 540 U.S. at 557("We do not say that the Fourth Amendment forbids a warrant from
cross-referencing other documents. Indeed, most Courts of Appeals
have held that [cross-referencing is permissible under certain circum-
stances]."); United States v. Washington, 852 F.2d 803, 805 (4th Cir.
1988). As a general rule, a supporting affidavit or document may be
read together with (and considered part of) a warrant that otherwise
lacks sufficient particularity "if the warrant uses appropriate words of
incorporation, and if the supporting document accompanies the war-
rant." Groh, 540 U.S. at 557-58. Although the search warrant in this
case does not on its face describe the items to be seized in the search
4
Hurwitz fails to identify facts in the record supporting his contention
that the Attachment did not accompany the search warrant at the time of
the search. Before the district court, counsel for Hurwitz simply asserted
that the Attachment was not presented during the search, but it is unclear
how counsel came by these facts, as there was no testimony or evidence
presented regarding who was present during the search. By the same
token, however, the government did not challenge this assertion. On
appeal, the parties have now submitted factual support for their positions.
Because this information was not before the lower court, we will not
consider it on appeal. And in view of the government’s failure to dispute
this factual assertion in district court, we will assume that the Attachment
to the Lucas affidavit did not, in fact, accompany the search warrant at
the time Hurwitz’s office was searched.
10 UNITED STATES v. HURWITZ
of Hurwitz’s office, it does refer to the "Attachment" to Lucas’s sup-
porting affidavit detailing the property to be seized.
Hurwitz contends that the mere reference to the Attachment to
Lucas’s affidavit was insufficient, on its own, to satisfy the Fourth
Amendment’s particularity requirement. According to Hurwitz, the
Attachment itself must have accompanied the warrant at the time of
the search for it to be construed to supply the particulars lacked by
the search warrant. Hurwitz bases his argument on the language of
Groh suggesting that the majority of the Courts of Appeals permit a
general warrant to be cured by reference to a separate document only
if both requirements — that words of incorporation be used and that
the incorporated document accompany the warrant — are met. See id.Thus, Hurwitz reads Groh as establishing a definitive two-part rule
for validating a warrant by incorporation of a separate document.
Groh, however, establishes no such rule. Instead, Groh simply
acknowledges the approach generally followed by the Courts of
Appeals. Because neither requirement was satisfied in Groh, the
Supreme Court declined to further consider the question of incorpora-
tion by reference. See id. at 558 ("But in this case the warrant did not
incorporate other documents by reference, nor did either the affidavit
or the application (which had been placed under seal) accompany the
warrant. Hence, we need not further explore the matter of incorpora-
tion.")
We recognize that a majority of our sister Circuit Courts of
Appeals appear to require the satisfaction of both conditions before
allowing a separate document to be read as part of the search warrant.
See Bartholomew v. Pennsylvania, 221 F.3d 425, 428-29 (3rd Cir.
2000); United States v. McGrew, 122 F.3d 847, 849-50 (9th Cir.
1997); United States v. Dahlman, 13 F.3d 1391, 1395 (10th Cir.
1993); United States v. Dale, 991 F.2d 819, 846-47 (D.C. Cir. 1993)
(per curiam); United States v. Morris, 977 F.2d 677, 681 n.3 (1st Cir.
1992); United States v. Curry, 911 F.2d 72, 77 (8th Cir. 1990). In this
circuit, however, it is sufficient either for the warrant to incorporate
the supporting document by reference or for the supporting document
to be attached to the warrant itself. See Washington, 852 F.2d at 805(concluding that warrant was sufficiently particular where the warrant
completely failed to refer to the supporting affidavit listing items to
UNITED STATES v. HURWITZ 11
be seized but the affidavit was attached, and explaining that "[a]n affi-
davit may provide the necessary particularity for a warrant if it is
either incorporated into or attached to the warrant") (emphasis added)
(internal quotation marks omitted). At least one other circuit sub-
scribes to this view. See Baranski v. Fifteen Unknown ATF Agents,
452 F.3d 433 (6th Cir. 2006) (en banc).
In this case, the search warrant cross-references the Attachment to
Lucas’s supporting affidavit. Although the words of incorporation
used in the warrant are not overly precise, Hurwitz does not contend
that they are insufficient to incorporate the Attachment for purposes
of the particularity requirement.5 Moreover, Hurwitz does not dispute
that the Attachment itself identifies the items to be seized from Hur-
witz’s office with sufficient particularity. Thus, we need not explore
either of these issues at length. We conclude that the search warrant
properly cross-referenced the Attachment which, in turn, supplied the
requisite particularity to the search warrant, regardless of whether the
Attachment accompanied or was appended to the search warrant at
the time it was executed.
Hurwitz maintains that because the Attachment did not accompany
the warrant when the search was performed, the essential purposes of
the Fourth Amendment’s particularity requirement went unfulfilled. A
sufficiently particular warrant not only guards against general
searches, but also "assures the individual whose property is searched
or seized of the lawful authority of the executing officer, his need to
search, and the limits of his power to search." United States v. Chad-
wick, 433 U.S. 1, 9 (1977). Moreover, according to Hurwitz, requiring
the Attachment to accompany the search warrant at the time of the
search would also inform the executing officer of the limits of his dis-
cretion to search. See McGrew, 122 F.3d at 850.
5
In both his opening and reply briefs, Hurwitz’s challenge to the valid-
ity of the warrant is premised on the contention that the Attachment to
the Lucas affidavit did not accompany the warrant. See Brief of Appel-
lant at 16 ("As in Groh, the sealed affidavit did not accompany the war-
rant at the time of the search . . . On this ground alone, the evidence
should have been suppressed."); Reply Brief at 6 ("Our argument, how-
ever, is that Attachment A did not accompany the warrant when it was
executed by the officers, [and] thus could not limit the scope of the
search and afford the opportunity for service on Dr. Hurwitz.").
12 UNITED STATES v. HURWITZ
These policy aims, as important as they may be, do not reflect a
constitutional mandate that an executing officer possess or exhibit the
affidavit or any other document incorporated into the warrant at the
time of the search in order for the warrant to be valid. The Fourth
Amendment does not require an officer to serve a search warrant
before executing it. See Groh, 540 U.S. at 562 n.5. In fact, the Fourth
Amendment is not offended where the executing officer fails to leave
a copy of the search warrant with the property owner following the
search, see United States v. Simons, 206 F.3d 392, 403 (4th Cir.
2000), or fails even to carry the warrant during the search, see Mazuz
v. Maryland, 442 F.3d 217, 229 (4th Cir. 2006).6 "[T]he requirement
of particular description does not protect an interest in monitoring
searches" or "engag[ing] the police in a debate" about the warrant.
United States v. Grubbs, 126 S. Ct. 1494, 1501 (2006). Rather, "[t]he
Constitution protects property owners . . . by interposing, ex ante, the
deliberate, impartial judgment of a judicial officer" and "by providing,
ex post, a right to suppress evidence improperly obtained." Id. (inter-
nal quotation marks omitted). These protections are sufficient to
ensure that the officer’s search is properly limited and to provide
assurance to the property owner that the executing officer enjoys the
lawful authority to search for specific items. Indeed, Hurwitz was able
to examine Agent Lucas’s affidavit and its attachment and raise a full
and complete challenge to the validity of the warrant after the search.
We see nothing in the Constitution requiring that an officer possess
or exhibit, at the time of the search, documents incorporated into a
warrant as an additional safeguard for the particularity requirement.
See Baranski, 452 F.3d at 443. Accordingly, the district court did not
err by rejecting Hurwitz’s claim that the absence of the Attachment
at the time of the search rendered the warrant invalid.
6
Of course, the failure to leave a copy of the warrant might violate
Rule 41 of the Federal Rules of Criminal Procedure. Suppression, how-
ever, would depend upon whether the party seeking suppression suffered
prejudice or the government intentionally violated the rule. See Simons,
206 F.3d at 403. These questions are not before us, however, because
Hurwitz does not contend that suppression is required under Rule 41.
UNITED STATES v. HURWITZ 13
(2)
Hurwitz also challenges the breadth of the warrant. When execut-
ing the warrant, the officers seized all of the patient files in Hurwitz’s
office. On appeal, Hurwitz contends that there was no probable cause
to justify the seizure of the files of every patient.
The Fourth Amendment requires that a warrant be "no broader than
the probable cause on which it is based." United States v. Zimmer-
man, 277 F.3d 426, 432 (3rd Cir. 2002) (internal quotation marks
omitted). "Although the concept of probable cause resists an exacting
definition, it ‘exist[s] where the known facts and circumstances are
sufficient to warrant a man of reasonable prudence in the belief that
contraband or evidence of a crime will be found’ in a particular
place." United States v. Perez, 393 F.3d 457, 461 (4th Cir. 2004)
(quoting Ornelas v. United States, 517 U.S. 690, 696 (1996)). An
assessment of probable cause by an impartial magistrate judge must
take into account "the totality of the circumstances," Maryland v.
Pringle, 540 U.S. 366, 371 (2003), including hearsay information, see
United States v. Dequasie, 373 F.3d 509, 518 (4th Cir. 2004), as set
forth in the affidavit presented in support of the warrant.
When reviewing a magistrate judge’s probable cause determina-
tion, we look to whether there was "a substantial basis for the deci-
sion." United States v. Lalor, 996 F.2d 1578, 1581 (4th Cir. 1993).
"[A]fter-the-fact scrutiny by courts of the sufficiency of an affidavit"
should accord "great deference" to the magistrate’s determination of
probable cause. Illinois v. Gates, 462 U.S. 213, 236 (1983) (internal
quotation marks omitted).
The Attachment to the supporting affidavit, which we read as part
of the search warrant, identified specific "items to be seized," includ-
ing "Patient medical and billing files" and all related records and doc-
uments, including "complete medical files." J.A. 94. Hurwitz argues
that because the supporting affidavit was based on statements of only
five of Hurwitz’s numerous patients, there was insufficient probable
cause for the government to seize all of the files. We disagree.
There is no requirement that the government have evidence relating
to each and every patient of Hurwitz to support the seizure of all of
the files in this case:
14 UNITED STATES v. HURWITZ
[W]here there is probable cause to believe that a business is
"permeated with fraud," either explicitly stated in the sup-
porting affidavit or implicit from the evidence therein set
forth, a warrant may authorize the seizure of all documents
relating to the suspected criminal area but may not authorize
the seizure of any severable portion of such documents
relating to legitimate activities.
United States v. Oloyede, 982 F.2d 133, 141 (4th Cir. 1992) (internal
quotation marks omitted).
In Oloyede, we affirmed the conviction of a lawyer who was
involved in a scheme to defraud the government by falsifying immi-
gration papers. Like Hurwitz, the lawyer in Oloyede challenged the
scope of a search that seized all of his clients’ files, claiming that the
government should have limited the search to files reviewed by the
agent who testified in support of the warrant or to files involving sim-
ilar immigration applications. We rejected this argument, holding that
the seizure of all of the files was justified by probable cause that the
business was "permeated with fraud." Id. The question in this case,
then, is whether a substantial basis existed for the issuing judge to
find probable cause that Hurwitz’s medical practice was permeated
with his drug trafficking activity such that all of his patient files could
be seized.
Agent Lucas indicated in his affidavit that he discovered "an
unusually high incident of arrests of individuals for distributing pre-
scription narcotics" in certain regions in Virginia, West Virginia, and
Tennessee, and that "[a] significant number of these arrests" resulted
in the identification of Hurwitz as the source of the prescription drugs.
J.A. 78. He then recounted evidence suggesting that Hurwitz com-
monly performed only the most cursory examinations — if he per-
formed them at all — prior to prescribing heavy doses of controlled
substances. According to Agent Lucas, Hurwitz had a reputation in
the drug community for his practice of prescribing high amounts of
narcotics, and one cooperating source claimed to have become a
patient for that very reason. Additionally, Agent Lucas indicated that
Hurwitz demanded $1,000 "initiation fees" from patients, as well as
$250 monthly "maintenance fees," to be paid in cash, suggesting that
Hurwitz made a common practice of fronting drugs rather than prac-
UNITED STATES v. HURWITZ 15
ticing medicine. According to the supporting affidavit, Hurwitz’s
activities as a mere drug dispenser followed a well-established pattern
in that Hurwitz’s license to practice medicine was suspended in Vir-
ginia in 1996 for over-prescribing controlled substances to "at least"
26 patients, and that the District of Columbia Board of Medicine like-
wise suspended his license for similar reasons in 1992.
Additionally, the Lucas affidavit included facts suggesting that
Hurwitz apparently understood that his patients, on a wide-spread
basis, were re-selling and distributing the controlled substances that
he prescribed to them in the first instance. Hurwitz purportedly told
one patient "something to the effect that all of his patients were being
arrested" and "that he had patients in other states who were being
arrested." J.A. 85-86.
Agent Lucas’s affidavit provided a substantial basis for the magis-
trate judge to find probable cause that Hurwitz’s practice was perme-
ated with the illegal distribution of drugs. See Oloyede, 982 F.2d at
141. The evidence of Hurwitz’s common practice gave reason to
believe that he "consistently departed from accepted professional
standards" and "was not practicing medicine, but was instead cloaking
drug deals under the guise of a professional medical practice." United
States v. Alerre, 430 F.3d 681, 691 (4th Cir. 2005), cert. denied, 126
S. Ct. 1925 (2006). Accordingly, we find no reversible error in the
district court’s decision to admit the evidence seized in the search of
Hurwitz’s office.
III.
We turn now to Hurwitz’s challenges to the jury instructions with
regard to the charges he faced under 21 U.S.C.A. § 841. "The deci-
sion to give or not to give a jury instruction is reviewed for an abuse
of discretion." United States v. Moye, ___ F.3d ___, ___ 2006 WL
2045802, *5 (4th Cir. July 24, 2006) (en banc). "We review a jury
instruction to determine whether, taken as a whole, the instruction
fairly states the controlling law. By definition, a court abuses its dis-
cretion when it makes an error of law." Id. (citation and internal quo-
tation marks omitted).
16 UNITED STATES v. HURWITZ
Section 841 provides that, "[e]xcept as authorized by this subchap-
ter, it shall be unlawful for any person knowingly or intentionally
. . . to . . . distribute, or dispense, or possess with intent to . . . distrib-
ute, or dispense, a controlled substance." 21 U.S.C.A. § 841(a)(1).
Doctors who are "registered" by the Attorney General are authorized
to write prescriptions for or to otherwise dispense controlled sub-
stances, so long as they comply with the requirements of their regis-
tration. See 21 U.S.C.A. § 822(b) (West 1999) (authorizing those
"registered by the Attorney General" to "possess, manufacture, dis-
tribute, or dispense [controlled substances] to the extent authorized by
their registration and in conformity with the other provisions of this
subchapter.").
As authorized by the Controlled Substances Act, see 21 U.S.C.A.
§ 821 (West Supp. 2006), the Attorney General has promulgated reg-
ulations addressing the conditions under which registrants are autho-
rized to dispense controlled substances. The regulations provide that
a prescription for a controlled substance is effective only if it is "is-
sued 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) (2006). The regulation further provides that:
An order purporting to be a prescription issued not in the
usual course of professional treatment or in legitimate and
authorized research is not a prescription within the meaning
and intent of section 309 of the Act (21 U.S.C. 829) and the
person knowingly . . . issuing [such a purported prescrip-
tion] shall be subject to the penalties provided for violations
of the provisions of law relating to controlled substances.
Id.Synthesizing the requirements of the relevant statutes and regula-
tions, we have held that to convict a doctor for violating § 841, the
government must prove: (1) "that the defendant distributed or dis-
pensed a controlled substance"; (2) that the defendant "acted know-
ingly and intentionally"; and (3) "that the defendant’s actions were
not for legitimate medical purposes in the usual course of his profes-
sional medical practice or were beyond the bounds of medical prac-
tice." United States v. Singh, 54 F.3d 1182, 1187 (4th Cir. 1995)
UNITED STATES v. HURWITZ 17
(internal quotation marks and alteration omitted); see also Alerre, 430
F.3d at 689-90; United States v. Daniel, 3 F.3d 775, 778 (4th Cir.
1993); United States v. Tran Trong Cuong, 18 F.3d 1132, 1141 (4th
Cir. 1994).7
On appeal, Hurwitz raises several objections to the district court’s
instructions to the jury. He argues that the instructions required the
jury to apply the knowledge requirement only to Hurwitz’s act of
writing a prescription, and that the instructions therefore permitted the
jury to convict even if it concluded that Hurwitz did not know that
any given prescription was not for a legitimate medical purpose or
was beyond the bounds of medical practice. Hurwitz claims that the
instructions thus improperly limited the statute’s mens rea require-
ment and permitted the jury to convict him of a serious crime with lit-
tle more than a finding of negligence. And in a related argument,
Hurwitz contends that the district court erred by not including a good-
faith instruction in connection with the § 841 charges and by specifi-
cally instructing the jury that it could not consider Hurwitz’s good
faith as to any of the drug-trafficking charges. Hurwitz also argues
that the district court erred by not defining the phrases "beyond the
bounds of medical practice" or "not for a legitimate medical purpose."
As we explain below, we conclude that a new trial is required because
of the district court’s error regarding the good-faith instruction. Given
this conclusion, we need not consider and we express no opinion on
Hurwitz’s other challenges to the jury instructions.
A.
Hurwitz first contends that the district court erred by rejecting his
request for a "good faith" instruction. Hurwitz argues that his good
faith in issuing the challenged prescriptions was relevant to his intent
when treating his patients and thus relevant to the jury’s determina-
7
Other circuits have concluded that whether the defendant’s actions
were for legitimate medical purposes or were beyond the bounds of med-
ical practice is not an essential element of a § 841 charge against a doc-
tor. See, e.g., United States v. Steele, 147 F.3d 1316, 1318 (11th Cir.
1998) (en banc); United States v. Polan, 970 F.2d 1280, 1282 (3d Cir.
1992); United States v. Seelig, 622 F.2d 207, 211-12 (6th Cir. 1980).
18 UNITED STATES v. HURWITZ
tion of whether he acted outside the bounds of accepted medical prac-
tice or without a legitimate medical purpose.
The district court agreed with the government’s position that Hur-
witz’s good faith was legally irrelevant to the drug-trafficking
charges, and the court declined to include Hurwitz’s requested
instruction. However, as to the two healthcare fraud charges, the dis-
trict court agreed to give a good-faith instruction. As to those counts,
the district court instructed the jury that it could not convict Dr. Hur-
witz if he "acted in good faith in dispensing any of the prescriptions
alleged to constitute the crime of healthcare fraud." J.A. 4909. The
court defined "good faith" to mean "good intentions in the honest
exercise of best professional judgment as to a patient’s needs. It
means the doctor acted according to what he believed to be proper
medical practice." J.A. 4909. The district court instructed the jury that
"good faith applies only" to the healthcare fraud counts. J.A. 4909.
Thus, the district court not only declined to give a good-faith instruc-
tion with regard to the drug counts, but also informed the jury that it
could not consider good faith when deciding whether to convict Hur-
witz of drug trafficking under § 841.8
(1)
As an initial premise, we agree with Hurwitz that a doctor’s good
faith generally is relevant to a jury’s determination of whether the
doctor acted outside the bounds of medical practice or with a legiti-
mate medical purpose when prescribing narcotics.
In United States v. Moore, 423 U.S. 122 (1975), the seminal case
addressing the prosecution of physicians under § 841, the Supreme
Court concluded that "registered physicians can be prosecuted under
§ 841 when their activities fall outside the usual course of profes-
sional practice." Id. at 124. In the course of concluding that the evi-
dence was sufficient to support the jury’s conclusion that the
defendant acted beyond the bounds of professional practice, the Court
noted two good-faith instructions that had been given to the jury. The
district court had instructed the jury that the defendant could be con-
8
The jury acquitted Hurwitz of the healthcare fraud charges.
UNITED STATES v. HURWITZ 19
victed if the jury found that he knowingly distributed controlled sub-
stances "other than in good faith for detoxification in the usual course
of a professional practice and in accordance with a standard of medi-
cal practice generally recognized and accepted in the United States."
Id. at 139, and that the defendant "could not be convicted if he merely
made ‘an honest effort’ to prescribe . . . in compliance with an
accepted standard of medical practice." Id. at 142 n.20.
Building on the Supreme Court’s approach in Moore, lower courts
have concluded that when resolving the ultimate question in a § 841
prosecution against a doctor — whether the doctor acted without a
legitimate medical purpose or beyond the bounds of accepted medical
practice — some latitude must be given to doctors trying to determine
the current boundaries of acceptable medical practice. Thus, courts
have consistently concluded that it is proper to instruct juries that a
doctor should not be held criminally liable if the doctor acted in good
faith when treating his patients. See Alerre, 430 F.3d at 692 (noting
that "the jury was correctly instructed on the applicable legal princi-
ples," and that the jury was instructed that the defendant-doctors
"could not be convicted if they had dispensed the controlled sub-
stances at issue ‘in good faith’"); United States v. Hughes, 895 F.2d
1135, 1141-42 (6th Cir. 1990) (citing Moore’s standard that physi-
cians cannot be convicted if they "dispens[e] controlled substances in
the course of professional practice" and explaining that "[b]ecause
Dudley was a licensed physician, the jury could not find him guilty
of distributing controlled substances, as long as he acted in ‘good
faith’"); United States v. Vamos, 797 F.2d 1146, 1151 (2d Cir. 1986)
("[T]he doctor must act in the good faith belief that his distribution
of the controlled substance is for a legitimate medical purpose and in
accordance with the usual course of generally accepted medical prac-
tice."); United States v. Hayes, 794 F.2d 1348, 1351-52 (9th Cir.
1986) (finding no error in charge that required jury to determine that
physician acted other than in good faith and defined good faith as "an
honest effort to prescribe for a patient’s condition in accordance with
the standard of medical practice generally recognized and accepted in
the country"); United States v. Norris, 780 F.2d 1207, 1209 n.2 (5th
Cir. 1986) (finding proper district court’s instruction to the jury that
"[a] controlled substance is prescribed by a physician in the usual
course of a professional practice, and, therefore, lawfully, if the sub-
stance is prescribed by him in good faith, medically treating a patient
20 UNITED STATES v. HURWITZ
in accordance with a standard of medical practice generally recog-
nized and accepted in the United States"); United States v. Carroll,
518 F.2d 187, 189 (6th Cir. 1975) (reversing conviction because trial
court "did not advise [the jury] that physicians are exempt from the
provisions of the drug abuse statute when they dispense or prescribe
controlled substances in good faith to patients in the regular course of
professional practice"). Accordingly, the district court erred by con-
cluding that good faith is not relevant when a registered physician is
charged with violating § 841.
(2)
The question we must next consider is Hurwitz’s argument that the
district court erred by refusing his proffered good-faith charge. While
the government objected below to any suggestion that a good-faith
instruction was appropriate, the government on appeal does not con-
tend that a good-faith instruction is never warranted in a case where
a registered physician is prosecuted under § 841. Instead, the govern-
ment argues that Hurwitz is not entitled to reversal on this point
because the good-faith instruction Hurwitz offered below was an
incorrect statement of the law. See United States v. Lewis, 53 F.3d 29,
32 (4th Cir. 1995) ("A district court’s refusal to provide an instruction
requested by a defendant constitutes reversible error only if the
instruction: (1) was correct; (2) was not substantially covered by the
court’s charge to the jury; and (3) dealt with some point in the trial
so important, that failure to give the requested instruction seriously
impaired the defendant’s ability to conduct his defense.") (internal
quotation marks omitted). We agree with the government that the
good-faith instruction offered by Hurwitz was not an accurate state-
ment of the law.
The good-faith instruction offered by Hurwitz at trial stated that:
If a doctor dispenses a drug in good faith to medically treat
a patient, then the doctor has dispensed the drug for a legiti-
mate medical purpose and in the course of medical practice.
That is, he has dispensed the drug lawfully. "Good faith" in
this context means good intentions in the honest exercise of
best professional judgment as to a patient’s needs. It means
UNITED STATES v. HURWITZ 21
the doctor acted according to what he believed to be proper
medical practice.
J.A. 719 (emphasis added). This proposed instruction clearly sets
forth a subjective standard, permitting Hurwitz to decide for himself
what constitutes proper medical treatment. As the government con-
tends, however, allowing criminal liability to turn on whether the
defendant-doctor complied with his own idiosyncratic view of proper
medical practices is inconsistent with the Supreme Court’s decision
in Moore.
In Moore, the Supreme Court discussed the circumstances under
which doctors could be prosecuted under § 841 using language that
strongly suggests the inquiry is an objective one. For example, the
Court held that "registered physicians can be prosecuted under § 841
when their activities fall outside the usual course of professional
practice." Moore, 423 U.S. at 124 (emphasis added). The Court also
noted that, when passing the Controlled Substances Act, Congress
intended to "confine authorized medical practice within accepted lim-
its," id. at 142 (emphasis added), and that "physicians who go beyond
approved practice remain subject to serious criminal penalties." Id. at
144 (emphasis added). And as discussed above, the Supreme Court
when concluding that the evidence was sufficient to support the
defendant’s conviction noted two good-faith instructions that had
been given to the jury. Those instructions clearly set forth an objec-
tive standard. See id. at 138-39, 142 n.20.
The good-faith instructions used in other circuits likewise have
reflected an objective standard for determining whether the defendant
acted in good faith. See Hayes, 794 F.2d at 1351 (affirming convic-
tion where district court instructed that "[g]ood faith is not merely a
doctor’s sincere intention towards the people who come to see him,
but, rather, it involves his sincerity in attempting to conduct himself
in accordance with a standard of medical practice generally recog-
nized and accepted in the country"); Norris, 780 F.2d at 1209 (reject-
ing argument that good-faith instruction should reflect subjective
rather than objective standard); United States v. Voorhies, 663 F.2d
30, 34 (6th Cir. 1981) (affirming conviction where jury was instructed
that: "Good faith . . . means good intentions and honest exercise of
best professional judgment as to a patient’s medical needs. It connotes
22 UNITED STATES v. HURWITZ
an observance of conduct in accordance with what the physician
should reasonably believe to be proper medical practice.").
Hurwitz, however, contends that his proffered good-faith instruc-
tion was proper because it was derived from our opinion in United
States v. Tran Trong Cuong, 18 F.3d 1132 (4th Cir. 1994). In that
case, the defendant argued, inter alia, that the district "court and the
prosecution used a medical malpractice standard rather than a crimi-
nal standard to judge his actions." Id. at 1137. In the course of
addressing the defendant’s arguments, we reviewed the jury instruc-
tions given by the district court and concluded that the instructions
correctly set forth a criminal standard of liability. See id.The jury instructions in Tran Trong Cuong included the following
language:
[If a] doctor dispenses a drug in good faith in medically
treating a patient, then the doctor has dispensed the drug for
a legitimate medical purpose in the usual course of medical
practice. That is, he has dispensed the drug lawfully. Good
faith in this context means good intentions in the honest
exercise of best professional judgment as to a patient’s need.
It means the doctor acted in accordance with what he
believed to be proper medical practice.
Id. at 1138. This charge is essentially identical to the good-faith
instruction proffered by Hurwitz. Since we described the instructions
in Tran Trong Cuong as correctly establishing a criminal standard of
liability, Hurwitz argues that we approved of the good-faith portion
of those instructions. We disagree.
No issue was raised by the defendant in Tran Trong Cuong that
required us to consider the precise contours of a good-faith instruc-
tion. Instead, the only challenge to the jury instructions was the defen-
dant’s claim that the instructions set forth a civil rather than criminal
liability standard. We found no merit to that argument and concluded
that the instructions correctly set forth a criminal standard. See id. at
1137. However, we specifically noted that the district court’s instruc-
tions on the no-legitimate-medical-purpose element "appear to be
more strict than that required by Moore and therefore was to defen-
UNITED STATES v. HURWITZ 23
dant’s benefit." Id. at 1138. The good-faith instruction was part of the
instructions on the no-legitimate-medical-purpose element and thus
was part of the instructions that we believed were more favorable to
the defendant than required by Moore. Because in Tran Trong Cuong
we were not called on to consider the defendant’s good faith and
because we explained that the portion of the instructions that included
the good-faith instructions were broader than necessary to comply
with Moore, it simply cannot be said that in Tran Trong Cuong we
approved the good-faith instruction sought by Hurwitz.
In this case, however, we are squarely presented with the question
of whether, in a § 841 prosecution against a doctor, the inquiry into
the doctor’s good faith in treating his patients is a subjective or objec-
tive one. We believe that the inquiry must be an objective one, a con-
clusion that has been reached by every court to specifically consider
the question. As the Second Circuit explained,
"[P]rofessional practice" [as used in 21 C.F.R. § 1306.04(a)]
refers to generally accepted medical practice; a practitioner
is not free deliberately to disregard prevailing standards of
treatment. . . .
....
To permit a practitioner to substitute his or her views of
what is good medical practice for standards generally recog-
nized and accepted in the United States would be to weaken
the enforcement of our drug laws in a critical area.
Vamos, 797 F.2d at 1151, 1153; see also United States v. Williams,
445 F.3d 1302, 1309 (11th Cir. 2006) ("Williams’s proposed instruc-
tion fails to introduce any objective standard by which a physician’s
prescribing behavior can be judged. Under Williams’s proposed
instruction, if it is a physician’s subjective belief that he is meeting
a patient’s medical needs by prescribing that patient a controlled sub-
stance, then that physician cannot be convicted of violating the Con-
trolled Substances Act even if he acts outside all accepted standards
of medical practice. Thus, the proposed instruction is contrary to
Moore."); Norris, 780 F.2d at 1209 (rejecting defendant’s claim "that
a standard medical practice may be based on an entirely subjective
24 UNITED STATES v. HURWITZ
standard" because "[o]ne person’s treatment methods do not alone
constitute a medical practice"); 3 Leonard B. Sand et al., Modern
Federal Jury Instructions, Instruction 56-19, comment (2003) ("Every
court to examine the issue has held that the objective standard that the
doctor acted in accordance with what he reasonably believed to be
proper medical practice should apply.").
Because the instruction proffered by Hurwitz set forth a subjective
standard for measuring his good faith, the instruction was not a cor-
rect statement of the law. Accordingly, although we conclude that
good faith generally is relevant in a § 841 case against a registered
physician, we nonetheless conclude that the district court did not err
by refusing the particular charge sought by Hurwitz. See Lewis, 53
F.3d at 32.
B.
Though the district court did not err by refusing Hurwitz’s good-
faith charge, there remains a separate issue regarding the court’s
good-faith instructions. As mentioned above, the district court gave
a good-faith instruction with regard to the healthcare fraud charges
and then specifically instructed the jury that good faith was relevant
only to the fraud charges. As we have explained, however, a doctor’s
good faith in treating his patients is relevant to the jury’s determina-
tion of whether the doctor acted beyond the bounds of legitimate
medical practice.
The government contends that because Hurwitz’s proposed instruc-
tion was not a correct statement of the law, any errors in the district
court’s good-faith instructions cannot justify a new trial. We disagree.
The government’s argument confuses two separate issues — whether
the district court erred by refusing to use the good-faith charge pro-
posed by Hurwitz, and whether the district court erred by affirma-
tively informing the jury that good faith was relevant only to the fraud
charges. Hurwitz timely objected to that instruction, thus preserving
that error of commission as a separate issue for review on appeal. The
district court’s incorrect instruction on good faith is not insulated
from review on appeal simply because Hurwitz’s proposed good-faith
instruction was incorrect.
UNITED STATES v. HURWITZ 25
The government also contends that any error with regard to the
good-faith instruction is harmless, because a good-faith instruction
was not warranted in this case.9 See Moye, ___ F.3d at ___, 2006 WL
2045802 at *6 ("In general, an error in a jury instruction will warrant
reversal of the conviction only if the error is prejudicial based on a
review of the record as a whole.") (internal quotation marks omitted).
The government first suggests that any error is harmless because
Hurwitz’s attorney admitted during closing argument that Hurwitz’s
actions were beyond the bounds of accepted medical practice. The
government argues that this admission is binding on Hurwitz and
amounts to a concession that the jury could not reasonably have con-
cluded that Hurwitz acted in good faith. See United States v. Blood,
806 F.2d 1218, 1221 (4th Cir. 1986) (concluding that "a clear and
unambiguous admission of fact made by a party’s attorney in an
opening statement in a civil or criminal case is binding upon the
party"); United States v. McKeon, 738 F.2d 26, 30 (2d Cir. 1984)
(explaining the general rule that "statements made by an attorney con-
cerning a matter within his employment may be admissible against
the party retaining the attorney, a proposition which extends to argu-
ments to a jury") (citation, internal quotation marks, and alteration
omitted). We disagree.
9
While the government argues that any error in the instructions was
harmless, it also takes the position that Hurwitz’s appellate arguments
should be reviewed for plain error only. According to the government,
Hurwitz on appeal has changed the nature of his argument regarding
good faith to such an extent that plain-error review is warranted. In mak-
ing this argument, the government again fails to distinguish between the
separate claims of error raised by Hurwitz — whether the district court
erred by rejecting Hurwitz’s proffered instruction and whether the dis-
trict court erred by affirmatively instructing the jury that good faith was
not relevant to the § 841 charges. As to this separate error of commis-
sion, Hurwitz argues on appeal just what he argued below — that it was
error for the court to instruct the jury that good faith was not relevant to
the § 841 charges. Hurwitz timely objected to that instruction, see J.A.
4836-37, and he renewed the objection after the instructions were actu-
ally given by referring to the objections previously made. See J.A. 4924.
That is enough to preserve the issue for appeal, see Jones v. United
States, 527 U.S. 373, 388 (1999), and plain-error review thus is not
applicable.
26 UNITED STATES v. HURWITZ
Although counsel stated that Hurwitz "did practice outside the
bounds of medicine," J.A. 4787, the statement referred to Hurwitz’s
dealings with various state medical boards. Given counsel’s statement
that the medical boards "were back in the Stone Age," J.A. 4787, the
statement could be understood as meaning only that Hurwitz in the
past acted outside the bounds of what those boards believed to be
proper medical practice. That Hurwitz practiced outside the bounds of
an out-of-step medical board’s view of proper medical practices does
not necessarily mean that his actions were beyond the bounds of gen-
erally accepted medical practices. The attorney’s statement therefore
cannot be viewed as a clear and unambiguous admission that Hurwitz
knowingly acted outside the bounds of accepted medical practice. See
Blood, 806 F.2d at 1221.
A more difficult question, however, is presented by the govern-
ment’s contention that the evidence presented at trial so overwhelm-
ingly demonstrated that Hurwitz was acting well beyond the bounds
of accepted medical practice that the jury could not reasonably have
found that he acted in good faith. See Mathews v. United States, 485
U.S. 58, 63 (1988) ("As a general proposition a defendant is entitled
to an instruction as to any recognized defense for which there exists
evidence sufficient for a reasonable jury to find in his favor."); United
States v. Horton, 921 F.2d 540, 543 (4th Cir. 1990) ("No instruction
may be given unless there is a foundation in the evidence to support
it.") (internal quotation marks omitted). Under the government’s
view, then, any error in the instructions was necessarily harmless,
because Hurwitz was not entitled to a good-faith instruction under the
evidence presented at trial.
While the government’s evidence was powerful and strongly indic-
ative of a doctor acting outside the bounds of accepted medical prac-
tice, we cannot say that no reasonable juror could have concluded that
Hurwitz’s conduct fell within an objectively-defined good-faith stan-
dard. Hurwitz presented expert testimony showing that it was proper
to use opioids when treating addicts who suffered from pain. Hur-
witz’s experts testified that his high-dose opioid therapy was a medi-
cally appropriate way to treat intractable pain and that the quantities
of opioids he prescribed were appropriate. Even as to the patients
whose dosages appeared extraordinarily high, such as the patient who
was prescribed over 500,000 pills during the course of his treatment,
UNITED STATES v. HURWITZ 27
the record contains expert testimony showing that Hurwitz’s treat-
ment and the quantities of opioids prescribed was medically proper.
In addition, the testimony of Hurwitz and his staff indicated that he
ran a legitimate medical practice, requiring patients to submit medical
records and questionnaires before visits, conferring with other physi-
cians outside of his practice about proper procedures, and relying on
information from professional conferences when determining proper
treatment practices. Thus, the record reveals a sufficient evidentiary
basis for a good-faith instruction.
Good faith was at the heart of Hurwitz’s defense. Hurwitz did not
dispute the bulk of the government’s factual evidence — that is, he
did not argue that he did not prescribe the narcotics that were the
basis for the charges against him. Instead, Hurwitz argued that the
manner in which he used narcotics to treat chronic and debilitating
pain was a medically proper approach to a difficult medical issue. By
concluding that good faith was not applicable to the § 841 charges
and affirmatively instructing the jury that good faith was not relevant
to those charges, the district court effectively deprived the jury of the
opportunity to consider Hurwitz’s defense. Thus, while we recognize
that the government’s evidence was strong, we simply cannot con-
clude that the district court’s error in removing good faith from the
jury’s consideration was harmless.
Accordingly, we conclude that Hurwitz was prejudiced by the dis-
trict court’s error in instructing the jury that Hurwitz’s good faith was
relevant only to the fraud charges. See Moye, ___ F.3d at ___, 2006
WL 2045802 at *6 ("In general, an error in a jury instruction will
warrant reversal of the conviction only if the error is prejudicial based
on a review of the record as a whole.") (internal quotation marks
omitted); Carroll, 518 F.2d at 189 (reversing conviction because trial
court "did not advise [the jury] that physicians are exempt from the
provisions of the drug abuse statute when they dispense or prescribe
controlled substances in good faith to patients in the regular course of
professional practice"); cf. Voorhies, 663 F.2d at 33 (finding no error
in jury charge which, "taken as a whole, . . . was calculated to protect
any physician who made a good faith effort to comply with the law").
C.
To summarize, we conclude that good faith is relevant to § 841
charges against a registered physician and that the district court erred
28 UNITED STATES v. HURWITZ
by incorrectly instructing the jury that Hurwitz’s good faith was rele-
vant only to the healthcare fraud charges. This error in the court’s
instructions to the jury cannot be considered harmless, and a new trial
is therefore required. On remand, the district court shall include a
good-faith instruction (if requested by Hurwitz and if supported by
the evidence presented at re-trial), but that instruction must reflect an
objective rather than subjective standard for measuring Hurwitz’s
good faith.
IV.
Accordingly, for the foregoing reasons, we vacate Hurwitz’s con-
victions under 21 U.S.C.A. §§ 841 and 846,10 and we remand for a
new trial in accordance with this opinion.11
VACATED AND REMANDED
WIDENER, Circuit Judge, concurring and dissenting:
I concur in the result and in all of the opinion of the court except
its discussion of good faith. I do not believe good faith should be
objective; the two terms are contradictory, it seems to me.
I would approve the instruction this very court discussed approv-
ingly in Tran Trong Cuong, 18 F.3d 1132, 1138 (4th Cir. 1994), slip
10
The instructions on the § 846 conspiracy count mirrored those for the
substantive § 841 counts, by requiring a determination that Hurwitz
entered into an agreement to distribute controlled substances not for a
legitimate medical purpose or beyond the bounds of medical practice.
Thus, the error in connection with the good-faith instruction affects the
conviction on the conspiracy count to the same extent as it does the § 841
convictions.
11
On appeal, Hurwitz also challenges certain evidentiary rulings by the
district court and the district court’s decision to excuse a juror after delib-
erations began. Because we have concluded that a new trial is required,
the juror-dismissal issue is moot and we decline to address it. We also
decline to consider Hurwitz’s evidentiary challenges. Should those issues
arise again on remand, the district court is free to consider the admissibil-
ity questions de novo.
UNITED STATES v. HURWITZ 29
22-23, and note that some or all of the instructions mentioned approv-
ingly in the majority opinion, and based on good faith, do not mention
objectivity as the standard. For example, see the two instructions in
Moore, 423 U.S. 122, 138-39, 142 n.20, (1975) and the instruction
from Voorhies, 663 F.2d 30, 34 (1981) in the Sixth Circuit.
In such cases as here, the act in question is not in dispute, it is the
intent of the actor into which inquiry is made.