United States v. Feingold ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 05-10037
Plaintiff-Appellee,
v.  D.C. No.
CR-02-00976-SMM
JEFFREY H. FEINGOLD,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Arizona
Stephen M. McNamee, District Judge, Presiding
Argued and Submitted
April 4, 2006—San Francisco, California
Filed July 21, 2006
Before: Alfred T. Goodwin, Betty B. Fletcher, and
Raymond C. Fisher, Circuit Judges.
Opinion by Judge B. Fletcher
8017
UNITED STATES v. FEINGOLD 8021
COUNSEL
Michele R. Moretti, Lake Butler, Florida, for the appellant.
Paul Charlton, United States Attorney, John Joseph Tuchi,
Deputy Appellate Chief, Linda C. Boone, Assistant United
States Attorney, Phoenix, Arizona, for the appellee.
OPINION
B. FLETCHER, Senior Circuit Judge:
Under the Controlled Substances Act (CSA), it is unlawful
for “any person” knowingly or intentionally to distribute or
dispense a controlled substance. 21 U.S.C. § 841(a). Although
the CSA makes exceptions to this prohibition for certain indi-
viduals who are registered “practitioners” under the Act, such
as physicians and pharmacists, see 21 U.S.C. §§ 821-23, the
Supreme Court has held that these practitioners are still sub-
ject to criminal prosecution “when their activities fall outside
the usual course of professional practice.” United States v.
Moore, 423 U.S. 122, 124 (1975); see also 21 C.F.R.
§ 1306.04 (providing that a practitioner “shall be subject to
the penalties . . . relating to controlled substances” unless the
prescriptions he writes are “issued for a legitimate medical
purpose . . . [and he is] acting in the usual course of his pro-
fessional practice”). Thus, a physician remains criminally lia-
ble when he ceases to distribute or dispense controlled
substances as a medical professional, and acts instead as a
“pusher.” Moore, 423 U.S. at 138, 143.
Dr. Jeffrey Feingold, a naturopathic physician licensed by
the State of Arizona, was convicted on 185 counts of illegally
8022 UNITED STATES v. FEINGOLD
distributing controlled substances, in violation of 21 U.S.C.
§ 841(a). He contends that his conviction is constitutionally
infirm due to improperly admitted testimony and erroneous
jury instructions. The thrust of both of these objections is that
the district court permitted the jury to convict him upon find-
ing that he was merely an incompetent doctor, rather than
upon the necessary finding that his conduct was so egregious
as to render him criminally liable. He also argues that his sen-
tence is invalid because the district court improperly relied on
facts not found by the jury and because the district court
denied his request for a two-level reduction in his offense
level.
Although we hold that Dr. Feingold’s arguments are with-
out merit, we vacate his sentence and remand for resentencing
pursuant to United States v. Beng-Salazar, No. 04-50518 (9th
Cir. July 6, 2006).
I.
Dr. Feingold graduated in 1976 from the National College
of Naturopathic Medicine and, after completing an internship
and residency, began his career in Philadelphia. In 1990, he
moved to Arizona, where he later opened his own practice. In
2000, the State of Arizona granted naturopathic physicians
authority to prescribe Schedule II, III, IV, and V controlled
substances. In August of 2002, Arizona curtailed this author-
ity, prohibiting naturopathic physicians from prescribing
Schedule II drugs, with the exception of morphine. Dr. Fein-
gold obtained from the Drug Enforcement Agency (DEA) the
necessary certification to prescribe controlled substances. The
prescriptions written by him pursuant to this certification
became the basis for a 185-count indictment. The government
alleged that Dr. Feingold abused his status as a licensed prac-
titioner to distribute controlled substances outside the course
of his professional practice.
At trial, the government presented evidence from several of
Dr. Feingold’s so-called patients. Their testimony against him
UNITED STATES v. FEINGOLD 8023
overwhelmingly demonstrated his disregard for proper pre-
scribing practices. For example, several patients testified that
they received prescriptions from Dr. Feingold even though he
had never physically examined them and even though he
never recorded the medical basis for prescribing these con-
trolled substances in his patients’ medical charts. Other
patients testified that he had given them controlled substances
even though he knew that they were recovering drug addicts.
Others testified that they received prescriptions even though
Dr. Feingold had never met with them. Dr. Feingold provided
pills to one patient in exchange for having the patient paint his
house, even though the prescriptions had ostensibly been
issued for the patient’s back pain. The record also indicates
that Dr. Feingold continued to prescribe Schedule II narcotics
even after Arizona had revoked the authority of naturopathic
physicians like him to prescribe them.
Further, Dr. Feingold prescribed these substances in excess
of the maximum dosages he recommended. In one case, in a
single month he provided twenty-eight prescriptions to one
patient, each for 120 pills — a total of more than 3,000 Oxy-
codone and Oxycontin pills. In another case, he prescribed as
many as 2,000 pills in a single month, despite the fact that the
recommended maximum dosage would have allowed the con-
sumption of only 186, to a patient who testified that he resold
the pills to others. He liberally provided prescriptions for
Hydrocodone, Percocet, Vicodin, Valium, Oxycontin, Oxyco-
done, and morphine, sometimes refilling these prescriptions at
intervals of only two days, or even daily. Dr. Feingold also
charged his patients by the number of prescriptions he wrote.
The evidence presented by Dr. Feingold’s “patients” also
included the testimony of two undercover DEA agents who
had obtained prescriptions for controlled substances both for
themselves and for each other. Dr. Feingold issued prescrip-
tions to one of these agents without examining her, and on
one occasion, before he had even met her. At least one of
these prescriptions was written for a Schedule II drug after
8024 UNITED STATES v. FEINGOLD
Arizona had made it illegal for naturopathic physicians to dis-
pense them. Finally, these agents testified that Dr. Feingold
had advised them to refill their prescriptions at a particular
pharmacy because certain other pharmacists had refused to fill
his prescriptions.
In addition to this evidence, the government presented two
expert witnesses — a naturopathic doctor named Dr. Thomas
Kruzel, and a medical doctor named Dr. Michael Ferrante.
Both experts testified about the standard of care with which
medical professionals generally must comply, and both of
them indicated that Dr. Feingold’s conduct fell far short of
applicable professional standards. For instance, Dr. Kruzel
testified that many of the prescriptions written by Dr. Fein-
gold were “medically unnecessary” and that Dr. Feingold’s
practice of prescribing narcotic drugs without conducting ade-
quate physical examinations or taking his patients’ medical
history was “highly unusual” and “outside the usual course of
naturopathic medicine.” Likewise, Dr. Ferrante testified that
Dr. Feingold’s prescription practices had failed to comply
with generally observed professional guidelines, that Dr.
Feingold had kept inadequate records, and that Dr. Feingold
had prescribed unusually high and frequent doses of narcotic
drugs. In addition, both experts consistently and unambigu-
ously testified that Dr. Feingold’s conduct was outside the
course of usual professional practice and that there was no
legitimate medical purpose for the 185 prescriptions identified
in the indictment.
In his defense, Dr. Feingold presented as an expert witness
a naturopathic doctor named Dr. Michael Cronin. This expert
initially indicated that he believed a legitimate medical pur-
pose existed for all of Dr. Feingold’s prescriptions and that
Dr. Feingold had issued all of his prescriptions in the good-
faith belief that his patients needed them. He explained that
the prescription of high levels of opioid medications was not
atypical in treating pain. On cross-examination, however, the
expert retracted much of his testimony and admitted that the
UNITED STATES v. FEINGOLD 8025
volume and frequency of most of the prescriptions was proba-
bly “excessive” and “outside the usual course of professional
practice and without a legitimate medical reason.”
Finally, Dr. Feingold testified in his own defense. He
admitted writing all of the prescriptions identified in the
indictment. He also admitted that, in retrospect, the prescrip-
tions he issued were not used for a valid medical purpose, that
he was practicing as an “incompetent” doctor, and that his
method of prescribing controlled substances would be consid-
ered “outside the usual course of professional practice.” He
explained, however, that the reason for these excessive pre-
scriptions was that he lacked training in “opioid medication
management” and that he “wasn’t trained to recognize opioid
seekers.” He claimed that he had always issued prescriptions
in the genuine belief that they were necessary to treat his
patients’ legitimate and serious medical conditions. Dr. Fein-
gold insisted that he had been prescribing the drugs in good
faith to help his patients manage their pain and that he had
naively believed them when they told him they needed more
pills.
The district court instructed the jury that it had to find three
elements in order to convict Dr. Feingold under § 841(a) as a
licensed practitioner:
First, the government must prove beyond a rea-
sonable doubt that the defendant distributed a con-
trolled substance. . . .
Second, the government must prove beyond a rea-
sonable doubt that the defendant distributed the con-
trolled substance knowingly and intentionally. . . .
Third, the government must prove beyond a rea-
sonable doubt that the defendant prescribed or dis-
tributed the controlled substance other than for a
8026 UNITED STATES v. FEINGOLD
legitimate medical purpose and not in the usual
course of professional practice.
In addition, the district court provided the following supple-
mental instructions:
A practitioner may not be convicted of unlawful
distribution of controlled substances when he distrib-
utes controlled substances in good faith to patients in
the regular course of professional practice. Only the
lawful acts of a practitioner, however, are exempted
from prosecution under the law. A controlled sub-
stance is distributed by a practitioner in the usual
course of his professional practice if the substance is
distributed by him in good faith in medically treating
a patient. Good faith is not merely a practitioner’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 recognized
and accepted in the country. Thus, good faith in this
context means 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. However, practitioners who
act outside the usual course of professional practice
and prescribe or distribute controlled substances for
no legitimate medical purpose may be guilty of
unlawful distribution of controlled substances.
After deliberation, the jury convicted Dr. Feingold on all
185 counts. The district court calculated the offense level
under the sentencing guidelines as 32, based on the quantity
of drugs illegally prescribed by Dr. Feingold, as well as on its
finding that Dr. Feingold had abused a position of public trust.
The district court sentenced Dr. Feingold to 60 months for
those counts that were subject to a statutory maximum, and to
UNITED STATES v. FEINGOLD 8027
144 months for the counts that were governed by the sentenc-
ing guidelines, with all sentences to run concurrently.
Dr. Feingold now appeals his conviction and his sentence.
II.
Dr. Feingold claims that the district court improperly
allowed expert witnesses to testify about the standard of care
applicable to the distribution of opioid and other drugs. He
argues that their testimony not only misled the jury by claim-
ing a consensus among medical professionals in a field where
none exists, but also was irrelevant and prejudicial because it
prompted the jury to convict him of criminal offenses where
at most he was a negligent doctor.
[1] We review a district court’s evidentiary rulings for
abuse of discretion. See, e.g., United States v. Alvarez, 358
F.3d 1194, 1205 (9th Cir. 2004). Here, we conclude that the
testimony about the applicable standard of care was relevant
and therefore admissible. We agree with Dr. Feingold’s obser-
vation that a violation of the standard of care alone is insuffi-
cient to support the criminal conviction of a licensed
practitioner under § 841(a). But we do not agree that evidence
of the governing standard of care is irrelevant or prejudicial.
To the contrary, only after assessing the standards to which
medical professionals generally hold themselves is it possible
to evaluate whether a practitioner’s conduct has deviated so
far from the “usual course of professional practice” that his
actions become criminal. Moore, 423 U.S. at 124.
[2] Both the Supreme Court and this court have allowed
juries to assess the prevailing standards of care among medi-
cal professionals in cases involving the criminal prosecution
of licensed practitioners. See id. at 126 (noting the practition-
er’s concession “that he did not observe generally accepted
medical practices”); United States v. Boettjer, 569 F.2d 1078,
1081 (9th Cir. 1978) (noting that the standard for criminal lia-
8028 UNITED STATES v. FEINGOLD
bility “itself imports considerations of medical legitimacy and
accepted medical standards”). As we explained in Boettjer,
evidence regarding the applicable standard of care is “not
offered to establish malpractice, but rather to support the
absence of any legitimate medical purpose in [the practition-
er’s] prescription of controlled substances.” 569 F.2d at 1082.
Knowing how doctors generally ought to act is essential for
a jury to determine whether a practitioner has acted not as a
doctor, or even as a bad doctor, but as a “pusher” whose con-
duct is without a legitimate medical justification. The district
court therefore did not abuse its discretion in admitting evi-
dence relating to the standard of care.1
III.
Dr. Feingold raises two objections to the jury instructions.
Although we review the “precise formulation” of jury instruc-
tions only for abuse of discretion, we review such instructions
de novo to determine whether they misstate the elements of a
crime. See United States v. Shipsey, 363 F.3d 962, 966 n.3
(9th Cir. 2004). Here, the thrust of Dr. Feingold’s arguments
is that the district court effectively misrepresented the ele-
ments of the crime. We therefore review the jury instructions
de novo.
A.
Dr. Feingold first argues that the instructions permitted the
jury to convict him without an adequate determination of his
mens rea. He argues that, to convict a licensed practitioner
under § 841(a), a jury must look into his subjective state of
1
To the extent that the government’s evidence, as Dr. Feingold charac-
terizes it, created the illusion of a consensus among the medical commu-
nity when no agreement actually exists about the applicable standard of
care, the proper response to this problem was for him to present evidence
(as he actually did at trial) of the purported disputes within the medical
community, not for the trial court to exclude any and all evidence relating
to the standard of care.
UNITED STATES v. FEINGOLD 8029
mind and determine that he intended to act outside the course
of his professional practice. He contends that his conviction
is invalid because the jury instructions did not require the jury
to do so in his case. See, e.g., United States v. Nguyen, 73
F.3d 887, 894-95 (9th Cir. 1995) (reversing a conviction
where the jury instructions failed to require a finding of
intent).
We agree with Dr. Feingold’s contention that a practitioner
who acts outside the usual course of professional practice may
be convicted under § 841(a) only if he does so intentionally.
If a practitioner’s distribution of controlled substances
becomes illegal only by virtue of the fact that his actions are
“outside the usual course of professional practice,” Moore,
423 U.S. at 124, it follows that the practitioner must have
deliberately acted in this fashion in order for him to be con-
victed of a crime. See Morissette v. United States, 342 U.S.
246, 250 (1952) (“The contention that an injury can amount
to a crime only when inflicted by intention is no provincial or
transient notion. It is as universal and persistent in mature sys-
tems of law as belief in freedom of the human will and a con-
sequent ability and duty of the normal individual to choose
between good and evil.”). As we emphasized in United States
v. Rosenberg, 515 F.2d 190 (9th Cir. 1975), “the jury [must]
look into [a practitioner’s] mind to determine whether he pre-
scribed the pills for what he thought was a medical purpose
or whether he was passing out the pills to anyone who asked
for them.” Id. at 197.
[3] Simply put, to convict a practitioner under § 841(a), the
government must prove (1) that the practitioner distributed
controlled substances, (2) that the distribution of those con-
trolled substances was outside the usual course of professional
practice and without a legitimate medical purpose, and (3)
that the practitioner acted with intent to distribute the drugs
and with intent to distribute them outside the course of profes-
sional practice. In other words, the jury must make a finding
of intent not merely with respect to distribution, but also with
8030 UNITED STATES v. FEINGOLD
respect to the doctor’s intent to act as a pusher rather than a
medical professional. Here, Dr. Feingold contends that the
district court’s instructions relieved the jury of its burden to
make this additional finding of intent.
[4] Contrary to Dr. Feingold’s assertion, however, we are
satisfied that the district court’s instructions did require the
jury to find that he intentionally acted outside the usual course
of professional practice. Although the district court did not
explicitly use the word “intent” in instructing the jury on this
aspect of the offense — that the defendant “prescribed or dis-
tributed the controlled substance other than for a legitimate
medical purpose and not in the usual course of professional
practice” — the instructions as a whole made clear that the
jury had to make a finding about Dr. Feingold’s state of mind.
See United States v. Dixon, 201 F.3d 1223, 1230 (9th Cir.
2000) (“A single instruction to a jury may not be judged in
artificial isolation, but must be viewed in the context of the
overall charge.”).
[5] In its supplemental instructions, the district court
informed the jury that a practitioner “may not be convicted of
unlawful distribution of controlled substances when he dis-
tributes controlled substances in good faith to patients in the
regular course of professional practice.” These supplemental
instructions further stated that “[a] controlled substance is dis-
tributed by a practitioner in the usual course of his profes-
sional practice if the substance is distributed by him in good
faith in medically treating a patient.” The district court
explained that good faith “involves his sincerity in attempting
to conduct himself in accordance with a standard of medical
practice generally recognized and accepted in the country.”
Finally, the district court instructed that “good faith in this
context means an honest effort to prescribe for a patient’s con-
dition.” The supplemental instructions made no fewer than
four references to Dr. Feingold’s state of mind, all of them in
connection with instructions regarding the professional com-
petence of a licensed practitioner. Admittedly, the instructions
UNITED STATES v. FEINGOLD 8031
would have been clearer if they had stated that “the govern-
ment must prove beyond a reasonable doubt that the defen-
dant intentionally prescribed or distributed the controlled
substance other than for a legitimate medical purpose and not
in the usual course of professional practice.” Nonetheless,
viewed in their entirety, the instructions compelled the jury to
consider whether Dr. Feingold intended to distribute the con-
trolled substances for a legitimate medical purpose and
whether he intended to act within the usual course of profes-
sional practice. The verdict represents the jury’s conclusion
that he did not. We therefore find no error in the jury instruc-
tions regarding Dr. Feingold’s criminal intent.
B.
Dr. Feingold also claims that the jury instructions were
erroneous because they misrepresented the standard for crimi-
nal liability. Specifically, he argues that the instructions con-
flated the higher standard for criminal liability under § 841(a)
— whether a practitioner’s actions “fall outside the usual
course of professional practice,” Moore, 423 U.S. at 124 —
with the standard for civil malpractice. As noted above, the
district court instructed the jury that Dr. Feingold had to make
“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.” Similarly, the court
instructed that good faith “involves [Dr. Feingold’s] sincerity
in attempting to conduct himself in accordance with a stan-
dard of medical practice generally recognized and accepted in
the country.” Dr. Feingold argues that, by using the profes-
sional “standard of care” as a benchmark in the jury instruc-
tions, the district court allowed the jury to convict simply
upon finding that he had been a negligent doctor.
Initially, we reiterate that the district court’s instructions
required a finding of intent, not merely a finding of malprac-
tice. Thus, while it is true that the district court’s instructions
referred to a national standard of care, at a minimum the
8032 UNITED STATES v. FEINGOLD
instructions required the jury to find that Dr. Feingold had
intentionally violated that standard. Dr. Feingold’s appeal
thus presents the question of whether a practitioner’s convic-
tion under 21 U.S.C. § 841(a) is valid if it rests only on a find-
ing of intentional malpractice, or whether a jury must find that
the doctor intentionally engaged in even more egregious con-
duct. Similarly stated: can a defendant who intentionally
exceeds a generally recognized “standard of medical practice”
still be engaged in “the usual course of professional practice,”
Moore, 423 U.S. at 124, such that he could escape criminal
liability? The question is a difficult and important one, and it
implicates the conduct of any health care professional whose
judgment about the appropriate standard of medical care may
conflict with what a jury determines to be the generally
accepted standard. The threat, Dr. Feingold argues, is that
doctors could be prosecuted and perhaps convicted as crimi-
nals whenever the Attorney General disapproves of a course
of treatment, or whenever they step outside of conventional
medical protocols in order to provide some sort of special
treatment for uniquely needy patients.
[6] Significantly, both the Supreme Court and this Circuit
have previously approved jury instructions that refer to a
national standard of care. In Moore, for example, the Supreme
Court implicitly approved instructions that had required the
jury to find that the practitioner had prescribed 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 medical practice generally recognized and
accepted in the United States.” 423 U.S. at 139. In Boettjer,
we upheld a conviction where the district court had required
the jury to find that the practitioner had acted “other than in
good faith for a legitimate medical purpose and in accordance
with the medical standards generally recognized and accepted
in the medical profession.” 569 F.2d at 1081. And in United
States v. Hayes, 794 F.2d 1348 (9th Cir. 1986), we upheld a
conviction obtained after the district court had instructed the
jury to find that the defendant had acted in good faith, which
UNITED STATES v. FEINGOLD 8033
it defined, as did the district court in this case, to mean that
the practitioner had made “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.”
Id. at 1351. These cases thus suggest that it is proper to
instruct a jury that it may compare the defendant’s conduct to
an applicable standard of care.
Yet these cases have also cautioned that a district court may
impermissibly lower the standard for criminal liability by
instructing the jury to determine whether a practitioner-
defendant has complied, or attempted to comply, with the
standard of care. Indeed, a careful reading of these cases
reveals that we have previously expressed concern about
instructions related to the standard of care. In Hayes, we
observed that the district court’s reference to the standard of
medical care was potentially confusing and that “more precise
language could have been used.” Id. at 1352. We nonetheless
affirmed the practitioner’s conviction because, after viewing
the jury instructions in their entirety, “we fail[ed] to see how
the jury could [have] interpret[ed] the instructions as permit-
ting a finding of guilt based on mere negligence.” Id. Like-
wise, in Boettjer, we observed that the jury instructions were
subject to several possible interpretations. We noted that one
plausible interpretation of the instructions would have permit-
ted conviction “merely upon a showing of malpractice,” and
we held that “to the extent the given instruction countenanced
this result, it was deficient.” 569 F.2d at 1082. We stated in
Boettjer that “we would not hold forth the charge given in this
case as a model for emulation, nor would we encourage its
verbatim proliferation.” Id. at 1083. Finally, the Supreme
Court in Moore was careful to emphasize that the defendant
in that case had so wantonly ignored the basic protocols of the
medical profession that “he acted as a large-scale ‘pusher’ —
not as a physician.” 423 U.S. at 143. The Court further
described § 841(a) as prohibiting “the significantly greater
offense of acting as a drug ‘pusher.’ ” Id. at 138. These state-
ments suggest that the Moore Court based its decision not
8034 UNITED STATES v. FEINGOLD
merely on the fact that the doctor had committed malpractice,
or even intentional malpractice, but rather on the fact that his
actions completely betrayed any semblance of legitimate
medical treatment.
[7] We hold that an instruction is improper if it allows a
jury to convict a licensed practitioner under § 841(a) solely on
a finding that he has committed malpractice, intentional or
otherwise. Rather, the district court must ensure that the
benchmark for criminal liability is the higher showing that the
practitioner intentionally has distributed controlled substances
for no legitimate medical purpose and outside the usual
course of professional practice.
Our holding is supported by the Supreme Court’s decision
in Moore, which implicitly approved an instruction that
required the jury to find “beyond a reasonable doubt that a
physician, who knowingly or intentionally, did dispense or
distribute [methadone] by prescription, did so other than in
good faith for detoxification in the usual course of a profes-
sional practice and in accordance with a standard of medical
practice generally recognized and accepted in the United
States.” Moore, 423 U.S. at 138-39 (alterations in original).
The district court’s instruction in Moore indicates that the jury
could convict under § 841(a) if the government proved that
the practitioner intentionally prescribed drugs for no legiti-
mate medical purpose. Conversely, to avoid conviction, the
practitioner could have demonstrated either that he had com-
plied with a generally recognized standard of care or that he
had prescribed the drugs in good faith for a legitimate medical
purpose. Our reading of the jury instructions approved by the
Moore Court, which unquestionably imposed a higher burden
on the government than proving deliberate malpractice, is also
in accord with the federal regulations governing licensed
practitioners. See 21 C.F.R. § 1306.04.
[8] Moreover, our holding is consistent with the law in sev-
eral of our sister circuits, which have emphasized that the
UNITED STATES v. FEINGOLD 8035
standard for criminal liability under § 841(a) requires more
than proof of a doctor’s intentional failure to adhere to the
standard of care. See United States v. Tran Trong Cuong, 18
F.3d 1132, 1137 (4th Cir. 1994) (noting that a criminal con-
viction “requires more” than a showing of malpractice, and
defining the standard as “proof beyond a reasonable doubt
that the doctor was acting outside the bounds of professional
medical practice, as his authority to prescribe controlled sub-
stances was being used not for treatment of a patient, but for
the purpose of assisting in the maintenance of a drug habit or
of dispensing controlled substances for other than a legitimate
medical purpose, i.e. the personal profit of the physician”);
United States v. Stump, 735 F.2d 273, 276 (7th Cir. 1984)
(holding that evidence was sufficient to support a conviction
where the doctor’s pattern of prescribing drugs “could not
possibly be consistent with legitimate medical treatment”);
United States v. Bartee, 479 F.2d 484, 489 (10th Cir. 1973)
(holding that evidence was sufficient to support a conviction
where the doctor “was not acting for a legitimate medical pur-
pose”). Instead, a jury must find that a doctor has intentionally
prescribed controlled substances for no legitimate medical
purpose. A practitioner becomes a criminal not when he is a
bad or negligent physician, but when he ceases to be a physi-
cian at all.2
2
We do not suggest that the federal government lacks authority to cir-
cumscribe the scope of treatment that might plausibly be considered
within “the usual course of professional practice.” Where the federal gov-
ernment has legitimately and expressly limited the ways in which practi-
tioners may employ controlled substances, a practitioner may be
prosecuted for exceeding such federal restrictions. See Moore, 423 U.S. at
144 (noting explicit congressional authorization for the then-secretary of
Health, Education, and Welfare to define the boundaries of permissible
experimentation with controlled substances for the purpose of treating
drug addiction). Here, we express no opinion on the validity of any federal
effort to define what constitutes a legitimate medical practice with respect
to the treatment of pain with opioid drugs. See Gonzales v. Oregon, 126
S. Ct. 904, 925 (2005) (holding that the Attorney General lacked authority
to declare illegitimate a medical standard for care and treatment of termi-
nally ill patients that was specifically authorized under state law).
8036 UNITED STATES v. FEINGOLD
[9] Nonetheless, we reaffirm that it is appropriate in cases
such as this for the jury to consider the practitioner’s behavior
against the benchmark of acceptable and accepted medical
practice. Just how that benchmark is expressed to the jury —
here, the district court defined that benchmark in terms of the
“standard of medical practice generally recognized and
accepted in the country” — is a matter within the district
court’s discretion.3 See United States v. Franklin, 321 F.3d
1231, 1240-41 (9th Cir. 2003) (“We review for abuse of dis-
cretion a district court’s formulation of jury instructions, con-
sidering ‘the instructions as a whole, and in context.’ ”
(quoting United States v. Stapleton, 293 F.3d 1111, 1114 (9th
Cir. 2002))). We emphasize, however, that a district court
may mislead a jury if its instructions referring to an applicable
standard of care suggest that a breach of that standard alone
is sufficient to sustain a criminal conviction.
[10] In this case, the instructions adequately stated the stan-
dard for criminal liability. Although the district court’s refer-
ences to the standard of care could have been articulated more
3
The Supreme Court’s decision in Moore authorized prosecution of
licensed practitioners who act “outside the usual course of professional
practice.” 423 U.S. at 124. The term “professional practice” implies at
least that there exists a reputable group of people in the medical profession
who agree that a given approach to prescribing controlled substances is
consistent with legitimate medical treatment. Accord 21 C.F.R. § 1306.04
(requiring prescriptions to be “issued for a legitimate medical purpose”).
As the Fifth Circuit has stated, “[o]ne person’s treatment methods do not
alone constitute medical practice.” United States v. Norris, 780 F.2d 1207,
1209 (5th Cir. 1986). Although the district court’s benchmark of a “stan-
dard of medical practice generally recognized and accepted in the country”
may be overly broad given the diversity of views that may exist within the
medical profession about the propriety of any given course of medical
treatment, we nonetheless consider the instruction appropriate in light of
the court’s other instructions that Dr. Feingold could not be convicted if
he distributed the controlled substances “in good faith in medically treat-
ing a patient” or distributed them for a “legitimate medical purpose.” See
United States v. Dixon, 201 F.3d 1223, 1230 (9th Cir. 2000) (“A single
instruction to a jury may not be judged in artificial isolation, but must be
viewed in the context of the overall charge.”).
UNITED STATES v. FEINGOLD 8037
clearly, the instructions informed the jury that “[a] practi-
tioner may not be convicted of unlawful distribution of con-
trolled substances when he distributes controlled substances
in good faith to patients in the regular course of professional
practice.” Moreover, in its description of the elements, the
district court instructed the jury that “the government must
prove beyond a reasonable doubt that the defendant pre-
scribed or distributed the controlled substance other than for
a legitimate medical purpose and not in the usual course of
professional practice.” These instructions correctly articulated
the standard for criminal liability under § 841(a).
Further, in this case, as in Moore, Boettjer, and Hayes, any
imprecision in the jury instructions as to the standard for
criminal liability was harmless beyond a reasonable doubt.
See, e.g., Rose v. Clark, 478 U.S. 570, 579-80 (1986) (con-
ducting harmless error review of an instruction that misstated
an element of the charged crime); United States v. Rubio-
Villareal, 967 F.2d 294, 296 n.3 (9th Cir. 1992) (en banc)
(same). The evidence against Dr. Feingold was overwhelm-
ing. He prescribed drugs to people whom he knew to be
addicts, to people whom he had never examined, to people
whom he had never met, and to undercover law enforcement
officials who did little more than tell him they wanted narcot-
ics. He continued to prescribe Schedule II narcotics even after
the state of Arizona had made it illegal for naturopathic physi-
cians to do so, and after local pharmacists had specifically
refused to fill some of his prescriptions because he lacked
authorization to write them. Further, he dispensed drugs in
quantities that, according to the government’s experts, proba-
bly would have killed his patients, and certainly would have
destroyed their livers, if they had actually consumed the drugs
in the amounts he prescribed.
[11] Moreover, Dr. Feingold repeatedly admitted during his
testimony that his practice of prescribing controlled sub-
stances was “outside the course of professional practice.” His
defense at trial was not that he earnestly adhered to some
8038 UNITED STATES v. FEINGOLD
alternative, but nonetheless medically legitimate standard of
care; rather, he claimed that he was an incompetent doctor
who was honestly trying to help his patients manage pain,
didn’t know that they were abusing the drugs due to his lack
of training about the use of opioids, and never intended to
flout professional protocol. Dr. Feingold’s jury rejected this
argument, just as the jury did in Moore. See 423 U.S. at 143
(noting that the jury disbelieved the practitioner’s defense that
he was “experimenting with a new . . . theory of detoxifica-
tion”). On this record, we hold that any reasonable jury would
have found that Dr. Feingold intentionally acted outside the
usual course of professional practice. We therefore affirm his
convictions.
IV.
Dr. Feingold raises several objections to his 144-month
sentence. First, he argues that the district court calculated his
offense level under the then-mandatory sentencing guidelines
based on judge-found facts, in violation of the Sixth Amend-
ment. See United States v. Booker, 543 U.S. 220, 244 (2005).
Second, he argues that the district court improperly denied his
request for a two-point reduction in his offense level pursuant
to U.S.S.G. § 2D1.1(b)(7). Finally, he argues that he is enti-
tled to resentencing because his sentence was imposed under
the district court’s erroneous assumption that the sentencing
guidelines were mandatory. See United States v. Beng-
Salazar, No. 04-50518 (9th Cir. July 6, 2006).
[12] We reject Dr. Feingold’s argument that his sentence is
the product of constitutional error. At sentencing, the district
court imposed two sentence enhancements — one because Dr.
Feingold abused a position of public trust, see U.S.S.G.
§ 3B1.3, and the other because of the amount of drugs he ille-
gally distributed, see U.S.S.G. § 2D1.1(c)(5). Both of these
enhancements were based on facts that were admitted by the
defendant and implicit in the jury’s verdict. The first increase
in Dr. Feingold’s offense level was based on his admission
UNITED STATES v. FEINGOLD 8039
that he distributed the drugs in question under the aegis of
being a licensed naturopathic physician. See United States v.
Barnes, 125 F.3d 1287, 1292 (9th Cir. 1997) (“[A]buse of the
fundamental trust between doctor and patient is precisely the
sort of behavior to which section 3B1.3 is directed.”). The
second enhancement was properly based on Dr. Feingold’s
admission at trial that he actually prescribed the quantities of
drugs alleged in the indictment. See United States v. Labrada-
Bustamante, 428 F.3d 1252, 1261 (9th Cir. 2005). Thus, as
the district court found, because Dr. Feingold admitted the
facts necessary to calculate his sentence enhancements, there
was no Sixth Amendment violation. Booker, 543 U.S. at 244
(reiterating that the Sixth Amendment does not preclude the
imposition of additional punishment on the basis of facts “ad-
mitted by the defendant”); see also United States v. George,
420 F.3d 991, 1001 (9th Cir. 2005). No remand is necessary
on constitutional grounds.
[13] We also reject Dr. Feingold’s argument that the district
court erroneously denied his request for a reduction in his
offense level under U.S.S.G. § 2D1.1(b)(7), which was then
codified under subsection (b)(6). That guidelines provision —
which incorporates by reference the criteria set forth in the so-
called “safety valve” provision of the guidelines, see U.S.S.G.
§ 5C1.2(a) — provides for a two-point reduction in the
offense level of defendants who meet certain requirements
(non-violent offender, first-time offense, low-level partici-
pant, etc.). Dr. Feingold argues, and the government con-
cedes, that the district court was mistaken when it held that he
was ineligible for the reduction because his offenses did not
carry a mandatory minimum. We agree, and we join our sister
circuits in observing that a two-point reduction under this pro-
vision is available to criminal defendants regardless of
whether their offense carries a mandatory minimum. See, e.g.,
United States v. Osei, 107 F.3d 101, 104-05 (2d Cir. 1997);
United States v. Warnick, 287 F.3d 299, 304 (4th Cir. 2002);
United States v. Leonard, 157 F.3d 343, 345-46 (5th Cir.
1998); United States v. Mashek, 406 F.3d 1012, 1018-20 (8th
8040 UNITED STATES v. FEINGOLD
Cir. 2005); United States v. Mertilus, 111 F.3d 870, 873-74
(11th Cir. 1997); United States v. Plunkett, 125 F.3d 873, 874
(D.C. Cir. 1997); see also U.S.S.G. § 2D1.1 cmt. 21 (“The
applicability of [the reduction] shall be determined without
regard to whether the defendant was convicted of an offense
that subjects the defendant to a mandatory minimum term of
imprisonment.”).
[14] The district court, however, also cited an alternative
basis for its decision. Specifically, it found that the reduction
was “not . . . applicable in this case” because Dr. Feingold had
not met the last criterion for the reduction, in that he had not
“truthfully provided to the government all the information he
has concerning the offense.” U.S.S.G. § 5C1.2(a)(5). We hold
that this factual determination by the district court was not
clearly erroneous. See United States v. Cantrell, 433 F.3d
1269, 1280, 1283 (9th Cir. 2006) (holding that “review of the
district court’s application of the Guidelines is the same as it
was under the pre-Booker sentencing regime”); United States
v. Ajugwo, 82 F.3d 925, 929 (9th Cir. 1996) (noting that the
factual determinations relating to a defendant’s eligibility for
the safety valve are reviewed for clear error). Because this
determination provided an independent basis for the district
court’s decision to deny the two-point reduction, any error in
the district court’s original ruling regarding the lack of a man-
datory minimum was harmless.
[15] Finally, we hold that Dr. Feingold is entitled to resen-
tencing under United States v. Beng-Salazar. See Slip op. at
7491-94 (holding that “a defendant who raised an objection in
district court based on the Sixth Amendment holdings of the
Apprendi line of cases preserved his claim that he is entitled
to resentencing under the advisory Guidelines regime”). The
government argues that remand for resentencing is not neces-
sary because the district court provided a lengthy sentencing
memorandum setting forth in detail the reasons for the sen-
tence it imposed. That ruling, however, provides no indication
of what the district court would have done if it had known that
UNITED STATES v. FEINGOLD 8041
the guidelines were advisory. See id. at 7493. Full resentenc-
ing is therefore warranted.
For the foregoing reasons, we AFFIRM Dr. Feingold’s
convictions, we VACATE his sentence, and we REMAND
for resentencing pursuant to Beng-Salazar.