USA v. Ronald Stuart Lubetsky

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-10142
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RONALD STUART LUBETSKY,
Defendant- Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:21-cr-20485-DMM-1
____________________
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2 Opinion of the Court 23-10142
Before L AGOA , BRASHER , and ABUDU, Circuit Judges.
PER CURIAM:
Federal law generally prohibits the distribution of controlled
substances, such as oxycodone and morphine. The general prohi-
bition is subject to some important exceptions. One such exception
is that physicians are “authorized” to prescribe controlled sub-
stances to patients, so long as those prescriptions are “issued for a
legitimate medical purpose by [a physician] acting in the usual
course of his professional practice.” 18 U.S.C. §§ 841(a)(1), 829(a);
21 C.F.R. § 1306.04(a). The United States accused Dr. Ronald
Lubetsky of carelessly and unnecessarily prescribing oxycodone
and morphine. A jury agreed, finding Lubetsky guilty on seven
counts of knowingly and intentionally dispensing controlled sub-
stances without authorization by law.
Lubetsky appeals on two grounds. First, he argues that the
evidence produced at trial was insufficient to support the jury’s
guilty verdicts. Second, he contends that the jury’s guilty verdicts
were tainted by the prosecutor’s alleged mischaracterizations of
the evidence during closing arguments. Because neither argument
is persuasive, we AFFIRM.
Lubetsky’s first argument focuses on 21 C.F.R. § 1306.04(a)’s
use of the phrase “issued for a legitimate medical purpose.” He
homes in on that phrase because there’s really no disputing that the
jury heard enough evidence to find that he knowingly acted out-
side “the usual course of his professional practice” when issuing the
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23-10142 Opinion of the Court 3
oxycodone and morphine prescriptions at issue here.1 Lubetsky
says that evidence is not sufficient to sustain the jury’s guilty ver-
dicts, however, because the government also had to prove that he
knowingly or intentionally prescribed the oxycodone and mor-
phine without a legitimate medical purpose. Because the govern-
ment didn’t prove a lack of legitimate medical purpose, the argu-
ment goes, the government did not prove the prescriptions were
unauthorized.
Lubetsky’s first argument is squarely foreclosed by circuit
precedent. In United States v. Abovyan, we held that Section 841 “re-
quires only that the jury find the doctor prescribed a drug ‘not for
a legitimate medical purpose’ or not ‘in the usual course of profes-
sional practice.’’ 988 F.3d 1288, 1308 (11th Cir. 2021) (emphasis
added). That is, “the test is disjunctive, and a doctor violates the
law if he falls short of either requirement.” Id. at 1305. We had also
held that the “usual course of professional practice” inquiry was
objective. See United States v. Duldulao, 87 F.4th 1239, 1250–51 (11th
Cir. 2023) (collecting cases). That rule was later rejected by the Su-
preme Court in Ruan v. United States, 597 U.S. 450 (2022), where
the Court clarified that Section 841’s subjective “knowingly or
1 Lubetsky’s brief could be read as arguing the district court erred in admitting
the government’s expert witness and certain other pieces of evidence relating
to the usual course of medical practice. Those evidentiary objections were not
raised below, and Lubetsky has not established plain error in any event. See
United States v. Graham, 981 F.3d 1254, 1260 (11th Cir. 2020). So we do not
factor his evidence-admission arguments (to the extent there are any) into our
analysis.
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4 Opinion of the Court 23-10142
intentionally” mens rea also applied to the standard of care issue.
But we have since reaffirmed that “Abovyan’s holding—that a doc-
tor violates § 841(a) if the ‘legitimate medical purpose’ or ‘outside
the scope of professional practice’ requirement is met—remains
binding precedent[.]” United States v. Heaton, 59 F.4th 1226, 1241
n.17 (11th Cir. 2023); see also Duldulao, 87 F.4th at 1259. We are
bound by the prior panel precedent rule to adhere to Abovyan. See
Heaton, 59 F.4th at 1241 n.17 (quoting United States v. Archer, 1347,
1352 (11th Cir. 2008)). Because the evidence in this case was suffi-
cient to prove a knowing deviation from the usual course of medi-
cal practice, it does not matter whether there was also sufficient
evidence to prove a knowing lack of legitimate medical purpose.
Lubetsky’s second argument is that the jury’s verdicts were
tainted because, during closing arguments, the prosecutor mischar-
acterized the expert testimony regarding Lubetsky’s compliance
with the medical community’s standard of care. Lubetsky did not
object to the prosecutor’s arguments during trial. “When a defend-
ant fails to object to the prosecutor’s closing argument, relief is
available to rectify only plain error that is so obvious that failure to
correct it would jeopardize the fairness and integrity of the trial.”
United States v. Bailey, 123 F.3d 1381, 1400 (11th Cir. 1997). Lubetsky
has not established that the prosecutor’s closing arguments were
improper, much less so improper as to call into question the “fair-
ness and integrity of the trial.” Id. Moreover, the district judge here
instructed the jury that “anything the lawyers say is not evidence
and isn’t binding on” the jury. The district judge reemphasized that
instruction immediately before closing arguments began, telling
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23-10142 Opinion of the Court 5
the jury that “arguments are not evidence, but [the lawyers] have
an opportunity . . . to argue what the evidence and reasonable in-
ferences that can be drawn from the evidence shows.” We are sat-
isfied that “any possible prejudice to [Lubetsky] . . . was cured by
instructions from the district court.” Bailey, 123 F.3d at 1402.
The judgment of the district court is AFFIRMED.
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