On June 27, the U.S. Supreme Court expanded the scope of the government’s burden of proof of a defendant’s mental state, or mens rea. The Supreme Court held that in a statute that provided an exception or exemption to prosecution, that is a clause stating “except as authorized,” the government must now prove beyond a reasonable doubt that a defendant knew that he did not fall within the scope of that exception. Although the case related to a federal criminal statute prohibiting the dispensing or distribution of controlled substances by a physician, the ruling can be applied to myriad criminal statutes that carve out exceptions or exemptions to prosecution. This article explains the Supreme Court’s decision and focuses on the ramifications as it pertains to other criminal statutes. It also raises questions regarding the reasonableness standards of the exclusionary rule under United States v. Leon, 468 U.S. 897 (1984).
In Ruan v. United States, 597 U.S. (2022), two physicians in two distinct cases were convicted of dispensing or distributing controlled substances by issuing opioid prescriptions in violation of 21 U.S.C. Section 841(a). Section 841 makes it a federal crime “except as authorized, … for any person knowingly or intentionally … to manufacture, distribute, or dispense … a controlled substance.” The Supreme Court consolidated the cases for purposes of the opinion. The defendants asserted that they were authorized to issue the prescriptions under 21 CFR Section 1306(a)(2021), which allows physicians to write prescriptions for controlled substances only “for a legitimate medical purpose … acting in the usual course of his professional practice.” They further asserted that even if they failed to comply with such standard, they believed they did. In other words, they asserted a good faith defense. The government in both trials argued that the prescriptions issued by the defendants did not comply with the standards set forth in 21 CFR Section 1306(a). The jury agreed. In both trials the district court instructed the jury that the physicians’ prescriptions were lawful if they were prescribed in good faith according to the generally recognized and accepted medical practice. The district courts and the appellate courts imposed an objective standard instead of a subjective standard.
The key issue before the Supreme Court was whether it is sufficient for the government to prove that the prescriptions were, in fact, not authorized or whether the government must prove that the physicians knew or intended that the prescriptions were not authorized. In other words, should the statute’s “knowingly and intentionally” mens rea requirement also be applied to phrases such as “except as authorized”? The Supreme Court held that it should. It ruled that the government must not only prove the elements of the statute, but must also prove beyond a reasonable doubt that the defendant knew he was acting in an “unauthorized” manner, that is that his conduct fell outside the scope of the exception.
The Supreme Court interpreted the clause “except as authorized” as an element of the offense where the defendant’s mental state must be proven beyond a reasonable doubt instead of an affirmative defense to be rebutted by the prosecution by a preponderance of the evidence. The court stated, “once a defendant claims that he or she falls within the authorization exception and the burden shifts back to the government, the government must prove a lack of authorization by satisfying the ordinary criminal law burden of proof: beyond a reasonable doubt.”
The court considered four factors in determining whether to apply the mens rea requirement to the phrase “except as authorized.” It considered whether the statute explicitly includes a “knowingly or intentionally” provision; the phrase “as authorized” played a crucial role in determining “morally blameworthy conduct from socially necessary conduct;” whether the crime and penalties were of a serious nature; and whether the language of the regulation defining the scope of authority was vague.
In addressing the second prong, the court reasoned that imposing the “knowingly or intentionally” requirement on the phrase “except as authorized” was necessary because the authorization of physicians to prescribe and distribute controlled substances “plays a ‘crucial’ role in separating innocent conduct—and, in the case of doctors, socially beneficial conduct—from wrongful conduct.” Only licensed healthcare professionals are authorized to dispense or distribute controlled substances. Therefore, the phrase “except as authorized” is a determinative factor in deciding whether a physician can be prosecuted under this statute.
Additionally, the court held that it is the defendant’s subjective mental state that the government must prove beyond a reasonable doubt, as opposed to a hypothetical “reasonable” doctor’s mental state. It is not whether a reasonable doctor would have believed he was authorized. The issue is whether the defendants believed their acts were authorized. The court explained that diluting the government’s proof to what a reasonable doctor would do reduces the culpability to a negligence standard and not a criminal standard.
Justice Samuel Alito concurred on other grounds. He criticized the majority’s opinion, stating that the ruling creates a “new hybrid that has some characteristics of an element and some characteristics of an affirmative defense,” thereby creating confusion. He explained that the government is required to prove the defendant’s mental state in relation to each element of the offense. He further explained that the clause “except as authorized” justifies a physician in writing prescriptions for controlled substances. This justification, according to Alito, amounts to an affirmative defense and not an element of the crime, and the burden that the government should carry is that of a preponderance of the evidence.
Raising the government’s burden of proof in prosecuting statutes that contain exception or exemption clauses can significantly impact numerous other criminal statutes. This burden can be fatal to government prosecutions. This decision provides vast opportunities for defense attorneys to challenge the prosecution’s proof in cases where the statute carves out an exception or exemption to prosecution.
For instance, 50 U.S. Code Section 1809 makes it a felony to intentionally engage in electronic surveillance under color of law “except as authorized” by law. This statute provides a defense for law enforcement officers. It is a defense to prosecution if the defendant is a law enforcement officer acting in the course of his official duty and was authorized to conduct the surveillance pursuant to a court order or a search warrant. If an FBI agent was being prosecuted under this statute and the agent brings forth some evidence that he had a good faith belief that he had a valid search warrant, although he didn’t, the Ruan decision will require the government to prove beyond a reasonable doubt that the agent subjectively knew when he engaged in the surveillance that the surveillance was not authorized.
Some may argue that the Ruan decision is at odds with the good faith exception to the exclusionary rule under Leon v. United States. Although Leon applies to the admissibility of evidence against a defendant typically in a motion to suppress, some may argue that it is fundamentally unfair for a defendant to be convicted on the officer’s objective reasonable belief that the warrant was valid even though the officer actually knew he was not authorized. Yet, the officer cannot be convicted of 50 U.S. Code Section 1809 unless the government proves beyond a reasonable doubt that he knew he acted outside the bounds of authority.
Another example where Ruan may apply is 40 U.S.C. Section 5104, which prohibits violently entering and engaging in disorderly conduct on Capitol Grounds and Buildings Security except, if the person is a government official in the lawful discharge of official duties. Here, if a congressperson forced his way onto the Capitol Grounds, claiming that he believed he was doing so in fulfillment of his duties, Ruan now requires the government to prove that he actually believed he was not authorized to forcibly enter.
These are just a few examples of how Ruan might be applied in the future. The number of criminal statutes in which Ruan might be applied is vast. Defense counsel should pay close attention to the statutes they are defending and hold the government to its new increased burden.
Reprinted with permission from the July 20, 2022 edition of the Legal Intelligencer© 2022 ALM Media Properties, LLC. All rights reserved.