A nurse at a medical clinic where Dr. George P. Naum, III worked prescribed controlled substances without the supervision of a doctor. Contending he knew about the nurse’s conduct but did not try to stop it, the government prosecuted Naum for conspiracy and for aiding and abetting the distribution of controlled substances outside the usual course of his professional practice, all in violation of 21 U.S.C. § 841(a). A federal jury concluded the government proved its case, convicting Naum on those counts. Later, the Supreme Court clarified that to convict a defendant under § 841(a), the government must prove not only that that he knowingly or intentionally distributed controlled substances, it must also prove he “knew or intended that his [ ] conduct was unauthorized.” Ruan v. United States, 597 U.S. 450, 467, 142 S.Ct. 2370, 213 L.Ed.2d 706 (2022). Seizing on that decision, Naum asked the United States Court of Appeals for the Fourth Circuit to vacate his convictions, arguing that the district court failed to instruct the jury that the government had to prove he subjectively knew his conduct was unauthorized. Naum argued that had the jury been properly charged, he would not have been convicted.
In Ruan, the Supreme Court held that § 841’s “knowingly or intentionally” mens rea applies not only to the requirement that a defendant distribute a controlled substance; it also applies to authorization. That means to establish a violation of § 841(a)(1), the government “must prove beyond a reasonable doubt that the defendant knowingly or intentionally acted in an unauthorized manner.” Ruan holds that Naum must have subjectively believed his conduct was outside the bounds of professional practice.
The federal appellate court stated in its April 11, 2025 Opinion: “We agree with Naum that his jury instructions misstated the law after Ruan. But applying plain error review, as we must, Naum has not met his burden of showing that had the jury been properly charged, there is a reasonable probability the outcome of his trial would have been different. So, we affirm.”
The federal appellate court noted that Naum testified that although he knew Jackson regularly violated his instructions, Naum continued to sign off on patient charts after learning of her actions because he was concerned that if he stopped her, patients might get medication on the street or overdose. Naum testified that he “believe[d] what [he] was doing was proper.”
“With our standard of review determined, we reach the ultimate issue—has Naum satisfied the requirements of plain error? To repeat, that standard requires Naum to show that the court’s jury instructions include an error, that the error was clear and obvious and that the error affected his substantial rights—meaning that it impacted the outcome of the district court proceedings. See Said, 26 F.4th at 660. And Naum also must show that the error seriously affected the fairness, integrity, or public reputation of the judicial proceedings … As already discussed, the jury instructions conflict with Ruan. And with the benefit of hindsight, the error is clear and obvious. But other than claiming the instructions effectively criminalize medical malpractice, Naum does not marshal an argument as to how the result would have been different had the jury been properly instructed. In contrast, the government maintains that the undisputed record evidence at Naum’s trial establishes that he subjectively understood he could not delegate his prescriptive authority to Jackson. The government points out that Naum conceded he was aware that Jackson prescribed medicine and made dosage changes with unrestricted use of the doctors’ DEA numbers, even though she lacked authorization. What’s more, the government notes Naum did not stop Jackson from doing this. Instead, Naum signed off on medical records knowing Jackson had done what she wasn’t supposed to do. Naum knew it was wrong to do this, but he did it anyway because he was concerned his patients would just head to the street for drugs. Based on that evidence, the government insists Naum cannot show that the incorrect jury instructions actually affected the outcome of the proceedings. We agree with the government. Naum has not met his burden of showing how the Ruan error affected his substantial rights.”
Source United States v. Naum, III, No. 20-4133.
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