USA v. Gerlay

Filing 77

Initial Report and Recommendation, Memorandum Opinion, Set/Reset Motion and R&R Deadlines/Hearings

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

UNITED STATES OF AMERICA,
Plaintiff,
vs.
GARY S. GERLAY,
a/k/a GARY S. GERLAY SZELES,
d/b/a/ AURORA PAIN MANAGEMENT,

Case No. 3:09-cr-00085-JWS-JDR
RECOMMENDATION REGARDING
DEFENDANT’S MOTION TO
DISMISS INDICTMENT
(Docket No. 31)

Defendant.

I. Background
Defendant Gerlay filed a Motion to Dismiss Indictment at Docket 31.
The Government filed its opposition at Docket 56. Mr. Gerlay argues that all charges
in the indictment should be dismissed because the charging statues violate the Fifth
and Tenth Amendments to the Constitution. Gerlay states that “Section 841 of Title
21, on its face and [as] applied to this case, violates Due Process in that the law fails
to provide adequate notice as to when a doctor commits an offense for prescribing
medications that also happen to be controlled substances.”1 Additionally, Gerlay
argues that 18 U.S.C. § 1347 similarly violates the Due Process Clause. Defendant
further asserts the indictment offends the Tenth Amendment “by crossing the line of
the proper regulation of controlled substances into the arena of regulating the

1

Memorandum in Support of Motion to Dismiss Indictment, Docket 32, p. 1.

practice of medicine, a role reserved to the individual states.”2 In response, the
government asserts that the case law on the issue is well-settled and that the Due
Process Clause is not violated by either statute.
The Defendant was indicted for improperly distributing Schedule II, II
and IV drugs in his pain management practice through Aurora Pain Management.3
Counts 1-64 allege Mr. Gerlay unlawfully distributed and/or dispensed a controlled
substance in violation of 21 U.S.C. §§ 841(a), (b)(1)(C), (b)(1)(D), and (b)(2).4
Counts 65-97 allege Health Care Fraud in violation of 18 U.S.C. § 1347(1) for
violations of the law related to the treatment of Medicaid patients.5 Gerlay argues
that the statutes should be declared void for vagueness both on their face and as
applied.
II. Void for Vagueness Challenge
A brief examination of the Void for Vagueness doctrine is helpful. This
Recommendations examines both the facial and as applied challenges in detail
below. Supreme Court precedent makes clear that courts should use the void for
vagueness remedy sparingly.6 In Schwartzmiller v. Gardner, the court recalled that

2

Id.

3

First Superceding Indictment, Docket 70.

4

Id.

5

Id. at p. 10.

6

Schwartzmiller v. Gardner, 752 F.2d 1341, 1364 (1984).
2

“‘under our constitutional system courts are not roving commissions assigned to
pass judgment on the validity of the Nation’s laws.’ This consideration limits the
strong medicine of striking down statutes as facially vague.”7
A statute may be challenged as unconstitutionally vague on its face or
as applied. As the Court noted in Schwartzmiller, “a ‘facial’ vagueness analysis is
mutually exclusive from an ‘as applied’ analysis.”8 The Court further noted that “[t]he
threshold question in any vagueness challenge is whether to scrutinize the statute
for intolerable vagueness on its face or whether to do so only as the statute is
applied in the particular case.”9 Here, the Court is asked to do both.
“The void for vagueness doctrine is concerned with a defendant’s right
to fair notice and adequate warning that his conduct runs afoul of the law.”10 The
Ninth Circuit has defined the void for vagueness doctrine. The court in United States
v. Wunsch held that a “[s]tatute is void for vagueness when it does not sufficiently
identify the conduct that is prohibited.”11 Defendant correctly notes that the Due
Process Clause requires a statute to be sufficiently clear so as not to cause persons
“of common intelligence . . . necessarily [to] guess at its meaning and [to] differ as

7

Id. (quoting Broadrick v. Oklahoma 413 U.S. 601, 610-11 (1973)).

8

Id. at 1346.

9

Id.

10

Gentile v. State Bar of Nevada, 501 U.S. 1030, 1077-78 (1991).

11

84 F.3d 1110, 1119 (9th Cir. 1996).
3

to its application[.]”12
Statutes need not be “written with ‘mathematical’ precision,”13 “but they
must be intelligible, defining a ‘core’ of proscribed conduct that allows people to
understand whether their actions will result in adverse consequences.”14 Courts are
to give statutes with criminal penalties more scrutiny under the void for vagueness
evaluation.15 “In addition to defining a core proscribed behavior to give people
constructive notice of the law, a criminal statute must provide standards to prevent
arbitrary enforcement.”16 The court in Forbes further noted that “a statute would be

12

Connally v. General Constr. Co., 268 U.S. 385, 391 (1926); see Grayned v.

City of Rockford, 408 U.S. 104, 108-09 (1972) (Laws which are insufficiently unclear
are void for three reasons: “1) to avoid punishing people for behavior that they could
not have known was illegal; 2) to avoid subjective enforcement of the laws based on
arbitrary or discriminatory interpretations by government officers; and 3) to avoid any
chilling effect on the exercise of First Amendment freedoms.”).
13

Forbes v. Napolitano, 236 F.3d 1009, 1011 (9th Cir.2000) (quoting Grayned

at 108-09.
14

Id. at 1011 (quoting Planned Parenthood v. Arizona, 718 F.2d 938, 947 (9th

Cir.1983) (holding that a statute is void for vagueness if persons of common
intelligence must necessarily guess at its meaning)).
15

Id. at 1011.

16

Id. (citing City of Chicago v. Morales, 527 U.S. 41, 52 (1999).
4

impermissibly vague even if it did not reach a substantial amount of constitutionally
protected conduct [without clear guidance on standards], because it would subject
people to the risk of arbitrary deprivation of liberty in itself officesive to the
Constitution’s due process guarantee.”17

A. Facial Challenge
A statue is unconstitutionally vague on its face “if ‘no standard of
conduct is specified at all,’ that is, if the statute is ‘impermissibly vague in all of its
applications.’”18 Whether a court can find a statute facially vague depends on
whether the statute impinges on or chills a constitutionally protected conduct or falls
into a “disfavored category” of statutes.19
In Nunez v. City of San Diego, a challenge to San Diego’s city juvenile
curfew ordinance, the Ninth Circuit outlined a two-prong test for facial vagueness
challenges: “the ordinance must (1) define the offense with sufficient definiteness
that ordinary people can understand what conduct is prohibited; and (2) establish
standards to permit police to enforce the law in a non-arbitrary, non-discriminatory

17

Id. at 1011-12 (citing Smith v. Goguen, 415 U.S. 566, 575 (1972)).

18

Parker v. Levy, 417 U.S. 733, 755 (1974) (quoting Coates v. City of

Cincinnati, 402 U.S. 611, 614 ( 1971)); (quoting Village of Hoffman Estates v. The
Flipside, Hoffman Estates, Inc., 455 U.S. 489, 497 (1982) (Flipside)).
19

Schwartzmiller at 1348.
5

manner.”20 The Ninth Circuit cited precedent in United States v. Mussry, stating that
“[i]t is well established that vagueness challenges to statutes which do not involve
First Amendment freedoms must be examined in light of the facts of the case at
hand.”21 Based on this precedent, the Court determined that it need only “decide
whether the defendants had fair notice that the conduct that they allegedly engaged
in was prohibited.”22 In Nunez, the Ninth Circuit stated, regarding facial vagueness
challenges, that “[t]he need for definiteness is greater when the ordinance imposes
cirminal penalties on individual behavior or implicates constitutionally protected
rights than when it regulates the economic behavior of businesses.”23 The Court
found that the greater “need for definiteness” was present in Nunez because the
ordinance “restrict[ed] individual freedom through criminal law.”24
No similar restriction on individual freedom is alleged in Mr. Gerlay’s

20

114 F.3d 935, 940 (9th Cir. 1997).

21

726 F.2d 1448, 1454 (9th Cir. 1984) (quoting United States v. Mazurie, 419

U.S. 544 (1975)).
22

Id.; see also, United States v. Kirkham, 129 Fed.App’x. 61, 71 (5th Cir. 2005)

(In a void for vagueness challenge of 18 U.S.C. § 1347, the court held that “[e]ach
vagueness challenge that does not involve First Amendment freedoms must be
examined in light of its individual facts and circumstances.”) (citation omitted).
23

Nunez at 940.

24

Id.
6

case. Looking at Nunez and Mussry, it is clear that this Court need not engage in
a evaluation of whether the statute is void for vagueness on its face since there are
no implications of restriction of freedom or First Amendment rights or a chilling effect
on constitutionally protected rights. Rather, the Court can turn to Mr. Gerlay’s
allegations that the statute is void for vagueness as applied to his alleged conduct.
Mr. Gerlay’s requests to find the statutes void for vagueness on their face should be
DENIED.

B. Void for Vagueness as Applied
1. 18 U.S.C. § 1347
Counts 65-97 allege Health Care Fraud in violation of 18 U.S.C. §
1347(1) for violations of the law related to the treatment of Medicaid patients.25 Title
18, section 1347(1) of the United States Code states:
Whoever knowingly and willfully executes, or attempts to execute, a
scheme or artifice– (1) to defraud any health care benefit program . . .
in connection with the delivery or payment for heath care benefits,
items, or services, shall be fined under this title or imprisoned not more
than 10 years, or both . . . .26
Mr. Gerlay alleges that the statute should be declared void for vagueness as applied
25

First Superceding Indictment, Docket 70.

26

18 U.S.C. § 1347(1).
7

to his case.
In United States v. Garcia, the court examined the statute under a void for
vagueness challenge and stated that “[a] ‘scheme or artifice to defraud’ has long
been construed to mean any deliberate plan of action or course of conduct by which
someone intends to deceive or cheat another of something of value.”27 The court
noted, when comparing the statute to mail and wire fraud statutes, that wire and mail
fraud statutes have repeatedly withstood vagueness challenges.28 Noting that
Medicare regulations are “admittedly complex,” the court held that “the statutes
defendants are charged with violating provide relatively straightforward descriptions
of fraud and conspiracy to commit fraud, and thus provide defendants with sufficient
notice as required by the Fifth Amendment.”29
Case precedent demonstrates that the language in 18 U.S.C. § 1347

27

No. C-09-236, 2009 U.S. Dist. Lexis 44482 (S.D.Tex. May 26, 2009); see

also United States v. Kirkham, 129 Fed.App’x 61 (5th Cir. 2005) (“Each vagueness
challenge that does not involve First Amendment freedoms must be examined in
light of its individual facts and circumstances.”).
28

Garcia at *16; see United States v. Daniels, 247 F.3d 598, 600 (5th Cir.

2001) (discussing mail fraud statute); United States v. Gray, 96 F.3d 767, 776-77
(5th Cir. 1996) (wire fraud); see also United States v. Franklin-El, Nos. 06-40011-01,
06-40011-02-WEB, 2007 WL 594724 (D.Kan. Feb. 20, 2007).
29

Garcia at *16.
8

withstands a void for vagueness challenge. As the Defendant has raised no
allegations which are distinguishable from case law on this issue, Defendant’s
request to find the statue unconstitutional on vagueness grounds should be
DENIED.
2. 21 U.S.C. § 841
Title 21 of the United States Code, the Controlled Substances Act (CSA), lays
out categories of prohibited conduct regarding controlled substances.30 The relevant
portions upon which Mr. Gerlay was indicted - 21 U.S.C. §§ 841(a)(1), (b)(1)(C),
(b)(1)(D), and (b)(2) - state:
(a) Unlawful acts
Except as authorized by this subchapter, it shall be unlawful for
any person knowing or intentionally –
(1) to manufacture, distribute, or dispense, or possess with
intent to manufacture, a controlled substance . . . .
(b) Penalties
Except as otherwise provided in section 859, 860, or 861 of this
title, any person who violates subsection (a) of this section shall
be sentenced as follows . . . .31
The court in United States v. Prejean, described sections 841 and 842 as
30

21 U.S.C. §§ 841-843.

31

Id.
9

prohibiting “various types of unauthorized distribution or dispensation of controlled
substances by DEA ‘registrants’ like pharmacists or doctors.”32 Early litigation
focused on whether physicians could be prosecuted under section 841. The
prohibited acts under §§ 842 and 843 are considered “more or less technical
violations”33 of the CSA with penalties “less severe than under Section 841.”34 In
United States v. Moore, the Supreme Court considered whether physicians must be
prosecuted under §§ 842 and 843 or whether they could be subject to the penalties
in § 841.35 The Court held that § 841 applied to “any person” and that there was no
exemption for doctors for activities not authorized under the CSA thus subjecting
them to criminal prosecution.36 Following Moore, lower courts were left to determine
what activities would be considered “outside the scope of professional practice to the
degree that would subject a DEA registrant to criminal liability under 21 U.S.C. §
841.”37
Defendant argues that the terminology in § 841 is so vague that the statute

32

429 F.Supp.2d 782, 800 (E.D.La. 2006).

33

United States v. Vamos, 797 F.2d 1146, 1152 n.1 (2d Cir. 1986) (citing

H.R.Rep. No. 91-1444, 1970 U.S.C.C.A.N. 4566, 4567).
34

Prejean at 800 (emphasis in original).

35

423 U.S. 122, 124 (1975).

36

Id. at 131-32.

37

Prejean at 800.
10

violates the Due Process Clause of the Fifth Amendment. In Mussry, the defendants
were accused of violating involuntary servitude laws. Defendants argued that they
did not violate the laws against involuntary servitude because they did not use
physical force, or threaten physical force, to cause persons to remain under their
control. They challenged the statute as unconstitutionally vague claiming that idea
that under the statutory scheme, one could hold a person in involuntary servitude
without the use or threat of physical force would render the statute so vague “that
they would violate the due process clause of the fourteenth amendment.”38 While
the challenged statute is not the same as the statute in the instant matter, the
analysis for vagueness is analogous.
The Mussry Court noted that “[i]n order to survive a vagueness challenge, ‘a
penal statute [must] define the criminal offense with sufficient definiteness [so] that
ordinary people can understand what conduct is prohibited in a manner that does not
encourage arbitrary and discriminatory enforcement.’”39 However, a penal statute
“should not be so narrowly ‘construed as to interfere with the federal government’s

38

Mussry at 1454.

39

Id. (quoting Kolender v. Lawson, 461 U.S. 352 (1983) (citations omitted));

see also Dunn v. United States, 442 U.S. 100, 112 (1979) (citing Grayned at 108
(“[N]o individual [may] be forced to speculate, at peril of indictment, whether his
conduct is prohibited.”)).
11

ability to efficiently administer its criminal laws.’”40 The language in the violated
statute in Mussry was “not the most precise.”41 But, the court noted that the
language was “not so opaque that ordinary people would not have notice that the
conduct allegedly engaged in by the defendants was prohibited.”42 And, while “close
questions may arise in interpreting the language of a criminal statute, that alone
does not render a statute unconstitutionally vague.”43 The court also found that the
language was not overly broad so as to create “the potential for arbitrary law
enforcement.”44 The court, therefore, found the statute provided notice to the
defendants that their conduct was prohibited and the void for vagueness challenge
failed.
Here, the Defendant states that § 841 does not give fair notice to him that his
actions violated the law.

Defendant argues that the facts of his case is

distinguishable from other cases where physicians violated § 841 because the

40

Id. at 1455 (quoting In re Subpoena of Persico, 522 F.2d 41, 64 (2d

Cir.1975) (quoted in United States v. Prueitt, 540 F.2d 995, 1002 (9th Cir.1976), cert.
Denied sub nom., Temple v. United States, 429 U.S. 1063 (1977)).
41

Id.

42

Id.

43

Id.; see Boyce Motor Lines v. United States, 342 U.S. 337, 340; United

States v. Douglass, 579 F.2d 545, 548 (9th Cir.1978).
44

Mussry at 1455.
12

alleged violations in this case are less severe and less obvious than similar cases
and because his area of medicine, pain management, does not have a widely
accepted standard for professional guidelines for distribution of narcotics to treat
chronic pain. Therefore, because the facts of his case are distinguishable and the
defined guidelines in pain management practice vary widely, Defendant concludes
that he did not have fair notice his alleged actions violated § 841.
It is true that the cases cited by the Defendant where doctors were prosecuted
successfully in the Ninth Circuit under § 841 are somewhat factually distinguishable.
In United States v. Rosenberg, undercover agents went into the doctor’s office,
without any claim of medical disability and obtained controlled substances.45 In
United States v. Boettjer, the same factual scenario played out.46 In United States
v. Feingold, the defendant prescribed drugs to known addicts, to people he never
examined, to people he had never met, and to undercover agents who told him they
wanted narcotics.47
The court in Boettjer stated that “[i]n order for a prescription for any controlled
substance to be effective it ‘must be issued for a legitimate medical purpose by an
individual practitioner acting in the usual course of his professional practice.’”48 The

45

515 F.2d 190 (9th Cir. 1975).

46

569 F.2d 1078 (9th Cir. 1978).

47

454 F.3d 1001 (9th Cir. 2006).

48

Boettjer at 1080 (quoting 21 C.F.R. § 1306.04(a)).
13

facts in the above-cited cases clearly violate the law. Arguably, these cited offenses
are more obviously illegal than Mr. Gerlay’s alleged actions of prescribing to patients
who had identifiable health issues which presumably caused them chronic pain.
Gerlay argues that physicians in his area of specialty, pain management, are
particularly difficult to prosecute under § 841 because there is no consensus in the
medical community on a standard of care for chronic pain patients. The area of pain
management arguably has more fluid definitions of permissible practice than other
areas of medicine. This, however, is an issue for trial, and not properly decided as
part of this motion.
Prosecuting physicians under § 841 for actions taken as part of a pain
management practice may be a more difficult road than with other areas of medicine.
Regardless, it is clear under the decision in United States v. Moore, that § 841 is not
unconstitutionally vague as applied to physicians.49 The court in United States v.
Birbragher stated that “Moore held a physician could be charged with criminal
conduct under the CSA for dispensing drugs outside the usual course of the
physician’s medical practice.”50 The Fifth Circuit Court of Appeals also held that §
841 as applied to a physician is not unconstitutionally vague in United States v.
Collier.51 The court specifically considered whether the phrase “in the course of

49

423 U.S. 122 (1975).

50

576 F.Supp.2d 1000, 1012 (N.D.Iowa 2008).

51

478 F.2d 268 (5th Cir.1973).
14

professional conduct” was vague and held that it was not stating “statutes affecting
medical practice need not delineate the precise circumstances constituting the
bounds of permissible practice.”52
In Prejean, the court examined the void for vagueness doctrine as applied to
the prosecution of physicians for distribution of controlled substances under § 841.53
The defendants in Prejean argued that “the statute should be considered void for
vagueness because the medical community has not established clear, nationwide
standards for what is considered ‘legitimate medical purpose’ in the field of pain
management,” the argument Gerlay makes in his motion.54 Referencing the decision
in In re Skinner, the court acknowledged that “there is no national standard on what
is considered ‘legitimate medical purpose’ or ‘professional practice’ regarding pain
management.55 The court held that despite the lack of a clear national standard, the
statute was not void for vagueness.56 The court went on to state that “[t]he Fifth
Circuit found the term ‘professional practice’ was not unduly vague. While the term

52

Id. at 272.

53

429 F.Supp.2d 782.

54

Id. at 805.

55

Id. (citing 60 Fed.Reg. 62, 877, 62,891 (Dec. 7, 1995) (“the medical

community has not reached a consensus as to the appropriate level of prescribing
controlled substance in the treatment of chronic pain patients”).
56

Id.
15

‘professional practice’ involved a certain amount of professional judgment and
discretion, 18 U.S.C. § 841 prosecutes physicians who act as drug pushers and thus
was not standardless.”57
In Forbes, the court described the void for vagueness doctrine by stating that
while “constructive, rather than actual notice is required, individuals must be given
a reasonable opportunity to discern whether their conduct is proscribed so they can
choose whether or no to comply with the law.”58
Prejean reiterates that “case law makes clear that consistent and pervasive
violations of state regulations and DEA regulations on medical practice and
dispensing of controlled substances can be evidence of a defendant’s criminal
liability under 21 U.S.C. § 841.”59

The Prejean court concludes, then, that

defendants who have been subjects of a state investigation regarding their medical
license for violations of professional standards “can hardly claim that he or she was
unaware that his or her actions were potentially criminal under section 841 when he

57

Id. (citing Collier, 478 F.2d at 271-272).

58

236 F.3d 1009 (9th Cir.2000) (citing Giaccio v. Pennsylvania, 382 U.S. 399,

402-03 (1966)).
59

Prejean at 805 (citing United States v. Alerre, 430 F.3d 681, 691 (4th Cir.

2005) (“evidence that a physician’s performance has consistently departed from
accepted professional standards . . . may properly be relevant to establish that the
physician contravened the criminal standard of liability.”).
16

or she has consistently violated accepted standards of professional practice.”60
Mr. Gerlay also had notice that his actions in dispensing pain medication
“knowingly and intentionally not for a legitimate medical purpose, and knowingly and
intentionally outside the usual course of professional medical practice, did knowingly
and intentionally distribute and dispense, and cause to be distributed and dispensed”
to the patients named in First Superceding Indictment.61 The language of 21 U.S.C.
§ 841 prohibits the distribution of controlled substances, unless the distribution is
authorized by the statute.62 The government asserts that Mr. Gerlay’s actions in
prescribing and distributing controlled substances to his patients was done in a
manner outside the scope of the usual course of professional medical practice and
not for a legitimate medical purpose. The government argues that Mr. Gerlay knew
or should have know that his conduct was prohibited based on the language of the
statue and case precedent. There is ample case precedent describing prosecution
for unlawful distribution of controlled substances by physicians under 21 U.S.C. §
841. The parties have cited such cases.
In addition to notice through the language of the statute and case law, Mr.
Gerlay was previously subject to professional investigation by the New Mexico Board

60

Id.

61

First Superceding Indictment, Docket 70, p. 13 - 25.

62

See 21 U.S.C. § 841.
17

of Medical Examiners.63 He admitted “by Stipulation . . . that he improperly and
misused prescriptions for controlled substances.”64 While this action was a civil and
not criminal matter, Mr. Gerlay had notice that his actions were in violation of the
law. Additionally, his practice in Alaska was subject to proceedings with the Alaska
State Medical Board and his license was suspended with a finding that his practice
with the Aurora Pain Management Clinic posed a “clear and immediate danger to the
public health and safety.”65
The Prejean defendants argued that they were simply charged with overprescribing drugs and that based on case law review of what has been alleged in
other prosecutions they did not have sufficient notice that over-prescribing subjects
them to a § 841 violation.66 This argument is similar to Gerlay’s suggestion that the
government’s allegations in his case involve much less obvious violations of § 841
than other prosecutions in the Ninth Circuit.

Prejean responds that if over-

prescription was the only allegation in the case of their defendants that the analysis
for void for vagueness notice might be different but that the defendants are alleged
to have done “much more than over-[prescribe] in this case: there are also
allegations that the Defendants violated professional standards in the handling of

63

First Superceding Indictment, Docket 70, p. 2.

64

Id.

65

Id.

66

Prejean at 805-06.
18

prescription medications, the management of patient records, and the time allotted
for patient evaluation by physicians. All of these actions also could subject the
Defendants to criminal liability under section 841. . . .”67
Mr. Gerlay faces similar charges that he failed to prescribe narcotics for
legitimate medical purposes. The government also alleges Gerlay failed to conduct
adequate physical examination of patients, ignored test results as the physicians did
in Moore and Feingold and prescribed drugs to patients who were suspected or
former addicts.68
Title 21, Section 841of the United States Code is not void for vagueness
neither facially nor as applied to Gerlay. Defendant had adequate constructive
notice through the language of the statute and case law that his alleged actions
triggered a violation of the statute. Additionally, Defendant had notice that his
alleged actions were violative through civil actions taken by the Medical Boards in
both New Mexico and Alaska.

III. Tenth Amendment violation as to 21 U.S.C. § 841
The Tenth Amendment states that “[t]he powers not delegated to the United
States by the Constitution, nor prohibited by it to the states, are reserved to the
67

Id.

68

See Opposition to Motion to Dismiss Indictment, Docket 56, p. 3;First

Superceding Indictment, Docket 70, pp. 26-35.
19

states respectively, or to the people.” Defendant alleges that 21 U.S.C. § 841
violates the Tenth Amendment by giving the federal government the right to regulate
the practice of medicine, a right reserved to the states, by allowing prosecutors to
define the meaning and scope of “legitimate medical practice.”69 As Defendant notes
in his Memorandum at Docket 32, “[t]he law sets forth two recognized and essential
requirements for the lawful distribution of controlled substances by doctors.”70 The
first requirement is that prescriptions must be issued for a legitimate medical
purpose and the second is that the distribution should be done within the usual
course of professional medical practice.71
The Prejean court was asked to determine whether the use of local, state
definitions of “legitimate medical practice” violated the Tenth Amendment and
whether there was a nationwide standard for “legitimate medical practice” with
respect to pain management.72 The court in Prejean, when confronted with a
challenge to § 841, noted that “the majority opinion in Gonzales [v. Oregon] strongly
supports the proposition that states primarily are responsible for defining what
‘legitimate medical practice’ is.”73 Gonzales states:

69

21 C.F.R. § 1306.04.

70

Memorandum in Support of Motion to Dismiss, Docket 32, p. 6.

71

21 C.F.R. § 1306.04.

72

Prejean at 801.

73

Id.
20

Even though regulation of health and safety is primarily, and
historically, a matter of local concern, there is no question that the
Federal Government can set uniform national standards in these areas.
In connection to the CSA, however, we find only one area in which
Congress set general, uniform standards of medical practice. [That
area is the uniform national standard for the medical treatment of
narcotic addiction under 42 U.S.C. § 290bb-2a.] This provision
strengthens the understanding of the CSA as a statute combating
recreational drug abuse, and also indicates that when Congress wants
to regulate medical practice in the given scheme, it does so by explicit
language in the statute.74
In its opinion in Gonzales, the Supreme Court stated that the CSA “bars
doctors from using their prescription-writing powers as a means to engage in illicit
drug dealing and trafficking as conventionally understood. Beyond this, however,
the statue manifests no intent to regulate the practice of medicine generally.”75 The
Court recognized that the government utilizes state definitions of medical practice
in prosecutions under the CSA.76 When operating within this limited scope, courts

74

Id. (quoting Gonzales v. Oregon, 546 U.S. 243, 271-72 (2006) (internal

citations and quotations omitted)).
75

Gonzales at 270.

76

Id. at 272.
21

have held that the regulation does not violate the Tenth Amendment.77

IV. Conclusion
The charging statutes, 21 U.S.C. § 841 and 18 U.S.C. § 1347, are not void for
vagueness either facially or as applied to the Defendant. The Indictment does not
violate the Tenth Amendment. Wherefore, the Magistrate Judge recommends denial
of Defendant’s Motion to Dismiss Indictment. IT IS SO RECOMMENDED.
DATED this

11th

day of December, 2009, at Anchorage, Alaska.

/s/ John D. Roberts
JOHN D. ROBERTS
United States Magistrate Judge

Pursuant to F.R.Cv.P. 72(b) and 28 U.S.C. § 636(b)(1), a party seeking to
object to this proposed finding and recommendation shall file written objections with
the Clerk of Court no later than NOON on Monday, December 28, 2009. Failure
to object to a magistrate judge's findings of fact may be treated as a procedural
default and waiver of the right to contest those findings on appeal. McCall v. Andrus,
628 F.2d 1185, 1187-1189 (9th Cir.), cert. denied, 450 U.S. 996 (1981). The Ninth
Circuit concludes that a district court is not required to consider evidence introduced
for the first time in a party's objection to a magistrate judge's recommendation United
States v. Howell, 231 F.3d 615 (9th Cir. 2000). Objections and responses shall not
exceed five (5) pages in length, and shall not merely reargue positions presented

77

See Gonzales at 269-270; see also Moore, 423 U.S. 122, 143 (1975).
22

in motion papers. Rather, objections and responses shall specifically designate the
findings or recommendations objected to, the basis of the objection, and the points
and authorities in support. Response(s) to the objections shall be filed on or before
NOON on Thursday, January 7, 2010. The parties shall otherwise comply with
provisions of F.R.Cv.P. 72(b).
Reports and recommendations are not appealable orders. Any notice of
appeal pursuant to Fed.R.App.P. 4(a)(1) should not be filed until entry of the district
court's judgment. See Hilliard v. Kincheloe, 796 F.2d 308 (9th Cir. 1986).

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