People of Michigan v. Xun Wang , 924 N.W.2d 237 ( 2019 )

Order Michigan Supreme Court
Lansing, Michigan
March 27, 2019 Bridget M. McCormack,
Chief Justice
158013 David F. Viviano,
Chief Justice Pro Tem
Stephen J. Markman
PEOPLE OF THE STATE OF MICHIGAN, Brian K. Zahra
Plaintiff-Appellee, Richard H. Bernstein
Elizabeth T. Clement
v SC: 158013 Megan K. Cavanagh,
Justices
COA: 336673
Ingham CC: 15-000754-FH
XUN WANG,
Defendant-Appellant.
_____________________________________/
On order of the Court, the application for leave to appeal the May 10, 2018
judgment of the Court of Appeals is considered. We direct the Clerk to schedule oral
argument on the application. MCR 7.305(H)(1). The appellant shall file a supplemental
brief within 42 days of the date of this order addressing: (1) whether the statutory
exception in MCL 333.16294 is an element of the offense for which the prosecutor has
the burden of proof, see People v Rios, 386 Mich. 172 (1971); but see People v Langlois,
325 Mich. App. 236 (2018); (2) if the statutory exception is an element of the offense,
whether the Court of Appeals erred in holding that the evidence was sufficient to sustain
the defendant’s conviction under MCL 333.16294 and specifically, whether the Court of
Appeals erred in concluding that the defendant’s actions were consistent with the practice
of medicine and therefore could not be delegated to her under MCL 333.16215; and (3) if
the statutory exception is not an element of the offense, whether defense counsel was
ineffective for failing to raise a delegation defense and bring the relevant statutory
provisions to the trial court’s attention. In addition, the appellant shall address whether
the evidence was sufficient to sustain the defendant’s convictions under MCL
400.607(1), and specifically whether the evidence was sufficient to show that the
defendant was in possession of facts under which she was aware or should have been
aware that her conduct was substantially certain to cause the payment of a Medicaid
benefit. See MCL 400.602(f).
In addition to the brief, the appellant shall electronically file an appendix
conforming to MCR 7.312(D)(2). In the brief, citations to the record must provide the
appendix page numbers as required by MCR 7.312(B)(1). The appellee shall file a
supplemental brief within 21 days of being served with the appellant’s brief. The
appellee shall also electronically file an appendix, or in the alternative, stipulate to the use
of the appendix filed by the appellant. A reply, if any, must be filed by the appellant
within 14 days of being served with the appellee’s brief. The parties should not submit
mere restatements of their application papers.
2
The Prosecuting Attorneys Association of Michigan, the Criminal Defense
Attorneys of Michigan, the Michigan Health & Hospital Association, the Michigan
Osteopathic Association, and the Michigan State Medical Society are invited to file briefs
amicus curiae. Other persons or groups interested in the determination of the issues
presented in this case may move the Court for permission to file briefs amicus curiae.
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
March 27, 2019
a0320
Clerk