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United States v. Gerlay

December 11, 2009

UNITED STATES OF AMERICA, PLAINTIFF,
v.
GARY S. GERLAY, A/K/A GARY S. GERLAY SZELES, D/B/A/ AURORA PAIN MANAGEMENT, DEFENDANT.



The opinion of the court was delivered by: John D. Roberts United States Magistrate Judge

RECOMMENDATION REGARDING DEFENDANT'S MOTION TO DISMISS INDICTMENT (Docket No. 31)

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."*fn1 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 practice of medicine, a role reserved to the individual states."*fn2 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.*fn3 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).*fn4 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.*fn5 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.*fn6 In Schwartzmiller v. Gardner, the court recalled that "'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."*fn7

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."*fn8 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."*fn9 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."*fn10 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."*fn11 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 to its application[.]"*fn12

Statutes need not be "written with 'mathematical' precision,"*fn13 "but they must be intelligible, defining a 'core' of proscribed conduct that allows people to understand whether their actions will result in adverse consequences."*fn14 Courts are to give statutes with criminal penalties more scrutiny under the void for vagueness evaluation.*fn15 "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."*fn16 The court in Forbes further noted that "a statute would be 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."*fn17

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.'"*fn18 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.*fn19

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 manner."*fn20 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."*fn21 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."*fn22 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."*fn23 The Court found that the greater "need for definiteness" was present in Nunez because the ordinance "restrict[ed] individual freedom through criminal law."*fn24

No similar restriction on individual freedom is alleged in Mr. Gerlay's 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.*fn25 Title 18, ...


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