Malicious Prosecution and Fabrication of Evidence

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Malicious Prosecution and Fabrication of Evidence Xiulu Ruan, MD

 

September 12, 2022

 

Prologue

 

On September 11, 2022, Page Pate, 55, died in an accidental drowning on St. Simons Island, when he and his son were swept offshore by a strong tide. His son managed to get back to shore safely. Page was retrieved by the rescue team and transported to the Southeast Georgia’s Brunswick hospital where he was pronounced dead.

 

Page was a prominent lawyer. Multiple media outlets in the Atlanta area reported his tragic death. The President of Georgia Association of Criminal Lawyers, Jason Sheffield, told the press that the organization “was shocked and saddened to hear the news of Page Pate’s passing.” He added: “Page was a larger-than-life person and attorney. Page’s dedication, creativity. and compassion for those persons facing prosecution across the United States was legendary.”

 

I was truly saddened by Page’s passing. Page was my lawyer. My memory of him has not faded over the years.

 

I was arrested on May 20, 2015, in “Operation Pilluted,” where the DEA targeted pain clinics in four Southern States including Arkansas, Alabama, Louisiana, and Mississippi. Hundreds of people including 22 doctors and pharmacists were arrested on that day.

 

Shortly after my arrest, a friend of mine sent me the website of Page Pate’s law firm and an article written by Page, titled: “‘Operation Pilluted’ is Another Example of DEA Excess in Alleged ‘Pill Mill’ Cases,” published on May 21, 2015, the day after my arrest.

 

By the time I received the information about Page’s firm, I had already secured the representation from Mr. Dennis Knizley, a local attorney in Mobile, Alabama, the same city where my clinic was located. Page’s website and the article, however, immediately caught my attention. In the “Operation Pilluted” article, Page wrote:

 

“While there have certainly been some pain clinics that had a history of over-prescribing narcotic medication…those clinics have mostly been put out of business at this point. It seems that the DEA is now focusing its attention on well-run clinics with qualified doctors because those clinics have generated more money that can be seized by the government when they swarm the clinic and make these arrests.”

 

Page shared his observation when defending some “pill mill” doctors:

 

“For most of these doctors, this is their first criminal case. In almost all of these cases, the doctors had not received any warning, advice or even a hint that their treatment of pain patients was medically inappropriate. No one at these clinics had ever received any notification from the DEA or any medical board that their prescribing practices were outside the normal range.”

 

Page’s article resonated with me. Prior to reading it, I was puzzled as to why the government had targeted me, considering that I was a well-trained interventional pain specialist, well-published, with solid academic title and a record number of medical board certifications. I had always played by the book and had held several leadership roles in State and National medical specialty societies in interventional pain management and addiction medicine. I had unrestricted medical licenses from Alabama, Florida, Mississippi, and Michigan and never had any issue whatsoever with any of these state medical boards for as long as I had practiced medicine. Page’s observation was revealing: The government was after money.

 

The article further explained how DEA conducted such “pill mill” prosecution:

 

“We have no idea why the DEA would decide to pursue this kind of an investigation when all it needed to do was simply advise the doctors of patient diversion and abuse when it occurred, and notify the medical board if there was really a problem with the doctor over-prescribing drugs. Of course, if the DEA had handled this and similar cases in that manner, they would not have been able to take the millions of dollars from the doctors and the clinics. In “Operation Pilluted,” the DEA took $12 million in currency and over $6 million in real estate property from the doctors , and pharmacists it arrested.

 

Page went deeper about the DEA’s motivation:

 

“I have also found incredibly disingenuous for the DEA to claim that these doctors were putting patients at risk by prescribing … when the DEA allowed these same doctors to continue giving out narcotic prescriptions during the many months the DEA was investigating the clinic. If these doctors were truly risking the health of their patients, any concerned law enforcement agent would have stepped in immediately and advised the doctor to change his or her prescription practices or face a loss of their licenses or criminal prosecution.”

 

Indeed the criminal investigation of our clinic, Physicians’ Pain Specialists of Alabama (PPSA) took about 18 months, from October 201310 May 2015. It was unlikely that the DEA truly believed we were harming our patients or endangering their lives. Page’s article readily convinced me that he knew the nature of such “pill mill” prosecutions. I immediately sought the approval from my family members, specifically my sister, Joan and my brother-in-law, Steve, a retired lawyer. Both agreed that I should invite Page to join my legal team, and Page gladly agreed.

 

Page’s observation explained that the government cared little about the physician’s credentials or how he actually practiced his specialty medicine; rather, it focused on how much properties it could seize from the intended prosecution. The government had no interest in properly informing the public. In fact it intentionally kept the public blind. E.g., the Original Indictment used only one sentence in describing my clinical background: “Defendant Xiulu Ruan, M.D. is a physician licensed to practice medicine in the State of Alabama.”

 

In preparation for my defense, Page would travel from Atlanta, GA, to Mobile, Alabama. He always drove his silver Lexus to Mobile to join my other lawyers and to meet with the prosecutors. Every time he was in town, Joan would manage to take some pictures of my entire legal team, which included Dennis Knizley, Page Pate, Gordon Armstrong, Jason Darley, and Steve (my brother-in-law).

 

I recall Page commented more than once that he had never seen a clinic that was charged for being a “pill mill” but refused to take cash-paying new patients. Our pain clinic, Physicians’ Pain Specialists of Alabama (PPSA), had been insurance-only, requiring every patient have a referral by another physician since the company’s inception in 1998. Page was very impressed to learn that PPSA had maintained such policies for 17 years. Page emphasized that other prosecuted pill mills he was involved or heard of were actually cash-only, without any insurance billing.

 

Page repeatedly shared with the rest of my legal team how unusual it was to see that a pain management physician who did not prescribe any controlled medicine to Government’s undercover agents but was still indicted for running a “pill mill.”

 

Remarkably Page was the first one to use the word “epic” in describing the- “Greenberg scandal.” which occurred during my trial. On January 14, 2017, after Government expert Dr. David Greenberg had testified, the prosecutors filed a motion under seal, seeking a court order to disqualify his testimony, citing Greenberg’s mental incompetence and dementia. (Dr. Greenberg was the key Government expert witness, who was on witness stand for two full days, and the trial records dedicated to his testimony was close to 400 pages. The Government must have considered Dr. Greenberg’s performance at trial a total disgrace.)

 

I recall Page gave me a mysterious smile and said: “Boy, this is epic.” Seeing I did not quite follow his remark, he explained: ”There has never been a case, in history, where the government filed a motion to fire its own medical expert –you know, it’s OK when it had to let go of a regular witness, an eyewitness, e.g., someone who was later found to have vision problem at trial…but not the medical expert. This is epic.”

 

Even today I still remember vividly the smile on his face when he-said that. Later in my writings I began using the word, “epic,” when describing the Greenberg incident in my trial. Every time I typed the word “epic,” it reminds me of him. Page will be missed; I wish him Rest in Peace!

 

Introduction

 

In this essay I aim to show: (1) I was indicted without probable cause; (2) my prosecution was malicious; (3) the prosecutors knowingly fabricated evidence to secure the convictions. All of the above violated my constitutional rights.

 

In McDonough v. Smith (2019), 139 S. Ct. 2149; 204 L. Ed. 2d 506, Petitioner McDonough sued Respondent Smith for prosecuting him with fabricated evidence. After McDonough was acquitted in the second trial, he sued Smith, claiming two different constitutional claims: one for fabrication of evidence, and the other for malicious prosecution without probable cause. McDonough did not specify which constitutional right(s). The Supreme Court (the Court) granted petitioner’s certiorari.

 

The Court’s decision was divided (6:3). The dissenting opinion, issued by Justice Thomas, joined by Justice Kagan and Justice Gorsuch, is informative. Justice Thomas opined:

 

“McDonough’s failure to specify which constructional right the respondent allegedly violated profoundly complicates our inquiry. McDonough argues that malicious prosecution is the common-law tort most analogous to his fabrication-of-evidence claim. But without ‘identifying the specific constitutional right at issue,’ we cannot adhere to the contours of that right when ‘applying, selecting among, or adjusting’ common-law approaches.” (Thomas, J., at 520) (dissenting)

 

[I believe it was no accident that McDonough did not specify which constitutional right was violated by fabrication of evidence and malicious prosecution. McDonough most likely did so purposely because the jurisprudence in them was extremely ambiguous and confusing. When the Justices of the Supreme Court could not settle on these issues, it might be safer for McDonough not to specify and let the Court decide.]

 

In McDonough, Justice Thomas further advised: “The better course would be to dismiss this case as improvidently granted and await a case in which the threshold question of a ‘fabrication-of-evidence’ claim is clearly presented.” (Id.)

 

Our case is the one that the Court has been waiting for. Our seven-week jury trial was laden with the prosecutorial fabrication of evidence, which certainly surpasses the threshold level at which a federal claim of constitutional right violation can be raised.

 

In Thompson v. Clark (2022), 142 S. Ct. 1332, 212 L. Ed. 2d 382, a case involving malicious prosecution, the Court’s opinion was again divided (6:3). Here the Court newly synthesized its Fourth Amendment claim under 42 U.S.C.S. Section 1983 for malicious prosecution. In a dissenting opinion, Justice Alito, joined by Justice Thomas and Justice Gorsuch, held:

 

“Today, the Court creates a chimera of a tort claim by stitching together elements taken from two very different claims: a Fourth Amendment unreasonable seizure claim and a common-law malicious-prosecution claim…But this Court has never held that the Fourth Amendment houses a malicious-prosecution claim… What the Court has done is to recognize a novel hybrid claim of uncertain scope that has no basis in the Constitution and is almost certain to lead to confusion.” (Alito, J., at 393- 394) {dissenting)

 

Justice Alito further pointed out that there is no overlap at all between the elements of the malicious prosecution tort with the elements of a Fourth Amendment unreasonable-seizure claim. (Id., at 394) (dissenting) He concluded that “instead of creating a new hybrid claim, we should simply hold that a malicious-prosecution claim may not be brought under the Fourth Amendment.” (Id., at 400) (dissenting) As seen, Justice Alito’s opinion largely contradicts the majority opinion.

 

Our case provides an opportunity for the Court to re-address and reconcile the hotly disputed federal claim for malicious prosecution. In this essay I argue that, in our case, the malicious prosecution violated the Fourth Amendment’s Unreasonable Seizure Clause (for lack of probable cause respecting the initial seizure and arrest) as well as the Fifth Amendment’s Due Process Clause, while the fabrication of evidence violated the Fifth Amendment’s Due Process Clause. Arguing along these lines may reconcile and clarify the confusion and contradiction expressed by the Justices. In McDonough and Thompson. This is the additional goal of this paper.

 

Ill. When A Damning Indictment Became A Plaything…Charging without Probable Cause.

 

Misconstruing Urine Drug Testing as Conspiracy to Commit Healthcare Fraud in the original indictment

 

At PPSA we routinely conducted urine drug testing such as urine drug screen (UDS) and gas chromatography-mass spectrometry (GC/MS) to screen and verify the prescribed drug; and their metabolites in order to monitor and stimulate patients’ compliance, i.e. to make sure patients were taking their prescribed drugs as directed and were not using any illicit drug – our effort to ensure responsible opioid prescribing. The Government, however, alleged our urine drug testing to be “conspiracy to commit healthcare fraud” in both the Original and the First Superseding Indictments.

 

The Original Indictment (April 30, 2015) stated:

 

“Count 2, Conspiracy to Commit Healthcare Fraud…after running the in-house UDS, patients urine samples were sent to outside laboratories for a much more expensive…GC/MS were billed to patients’ insurance providers under the false pretense that they were necessary tests.” (p. 3)

 

The First Superseding Indictment (October, 2015) stated:

 

“Ruan, Couch and other co-conspirators did not routinely use the UDS for their intended purposes…the GC/MS analyses were billed to the patients’ healthcare insurance providers…under the false pretenses that they were necessary tests.” (p. 13)

 

As seen in both versions of the Indictment, GS/MS testing was labeled by the Government as “false pretense(s).” i.e. unnecessary, and therefore our “conspiracy” of commission of healthcare fraud.

 

The Second Superseding Indictment (April 28, 2016), however, reversed:

 

“Ruan and Couch used expensive GC/MS testing as a source of additional revenue…These tests can be a legitimate part of the practice of pain management. However, Ruan and Couch frequently ignored inconsistent GC/MS and continued to prescribe.” (p. 16)

 

As seen in the Second Superseding Indictment, the Government admitted that GC/MS testing was legitimate, unlike the previous versions of the Indictment. This time, however, our “conspiracy” to commit “healthcare fraud came from that Dr. Couch and I frequently “ignored” the inconsistent GC/MS. The status change of GC/MS testing from “false pretense(s)” to “legitimate part of practice” proves that the early Indictments were under false premise, i.e. without probable cause.

 

[At trial, multiple expert witnesses testified that GC/MS testing was needed in chronic pain clinics, e.g., Government witnesses, Dr. G—-, (Tr. 1/13/2017, p. 773) and Dr. V—- (Tr. 1/23/2017, p. 2209). My expert witness, Dr. Jeff Gudin, quadruple board certified in anesthesiology, pain management, addiction medicine; and hospice and palliative care medicine (Tr. 2/10/2017, p. 5104; Id., p. 5110), told the jury that one of the most important reasons for doing drug testing is help improve patients compliance, “not so that you can fire patients.” (Tr. 2/10/2017, p. 5224) Dr. Gudin explained:

 

“Pain and addiction specialists have agreed that the most responsible thing to do with your patients when you think they are missing drugs is not to fire them or dismiss them, they are going to go to someone less skilled like a primary care doctor, urgent care doctor, and much more easily obtain these drugs.” (Id.)

 

Even the prosecutor Mr. Bodnar himself admitted this in his closing argument:

 

“There was no question that GC/MS testing is a good idea. It is something that should be done in pain management. And it is done in this practice. The issue is when you’re running these tests and you’re not utilizing the results     GC/MS is where the profits are. lt is to make them money.” (Tr. 2/16/2017, p. 6051-51)]

 

The Theme Change from a “Pill Mill” in the Indictments to “Money Mill” at Trial.

 

The second example is the theme change from a “pill mill” in the indictments to “money mill’ at trial. E.g. the First Superseding Indictment asserted:  “Couch and Ruan ran what was, in essence, a pill mill (First Superseding indictment, p. 2); while the Second Superseding Indictment asserted: “Ruan and Couch ran what was, in essence, a pill mill.” (Second Superseding Indictment, p. 8)

 

In the article “When a Pill Mill is really a Pill Mill: published online in 2012 by Dr. Lynn Webster, a former President of the American Academy of Pain Medicine, Dr. Webster explained that pill mills have the following features:

 

The physician owners retained physicians for their federally granted registrations to prescribe strong analgesics.

A pill mill is a cash-only business without any insurance billing.

A pill mill provides one form of treatment – pills.

Pill mills tend to open and close sharply to evade law enforcement.

 

PPSA contrasted sharply with a pill mill:

 

Dr. Couch and I co-owned PPSA.

PPSA had adopted a no cash Payments- policy since the company’s inception in 1998.

PPSA provided multidisciplinary pain management focusing on fluoroscope-guided interventions! pain management, with onsite Open MRI evaluation, Nerve Testing, urine and blood drug metabolites testing, physical therapy, and psychological therapy, etc.

 

PPSA did not take any cash-paying new patients. In those who had lost their insurance during our care under PPSA, we charged them a fixed rate of $90 for their office visits regardless of how complex their visits were. (Tr. 2/9/2017, p. 5045) This is in sharp contrast to other prosecuted pill mills, e.g., United States v. Votrobek (2017) ($300 in cash); United States v. Azmat (2015) ($250 to $300 in cash), etc.

 

Prosecutors Knew PPSA Was Not A Pill Mill.

 

Knowing that the evidence squarely showed that PPSA was not a pill mill – opposite to what was repeatedly asserted in the Indictments, the prosecutor Mr. Chris Bodnar cunningly set up a new straw man at trial, the “money mill.” In his opening statement, he told the jury:

 

“PPSA was not cash only. In fact, they wouldn’t accept that. PPSA required patients to be referred by another doctor.

They required patients to have insurance…what this was, was a money mill.” {Tr. 1/5/2017, p. 28)

 

This was the first time that the defense team ever heard the new allegation, “money mill.” Our “running a money mill- became the main thread of the trial. The prosecutors misled the jury from the beginning to the end. In the final rebuttal, the prosecutor Ms. Deborah Griffin stated:

 

“A pill mill is a money mill. A money mill is a pill mill. You don’t have to put a label on what these people are charged with.” (Tr. 2/16/2017, p. 6170)

 

As seen Ms. Griffin told the jurors that they should simply forget about the allegation of “pill mm• in the Indictments – just go ahead to convict us, based solely on the Government’s say-so, namely PPSA was a “money mill.”

 

During the sentencing hearing, Senior District Judge, Judge Callie V. S. Granade, concluded:

 

“This is not a typical pill mill. This is not a typical doctor overprescribing case. This is a very unusual case. I don’t think there is any question about it.” {Tr. 5/25/2017, p. 87}

 

On May 26, 2017, I was sentenced to 21 years in prison. The DOJ published a news article, titled nor. Couch and Dr. Ruan sentenced to 240 months and 252 months in Federal Prison for “RUNNING A MASSIVE PILL MILL.” (U.S. Attorney’s Office, Southern District of Alabama) (emphasis added)

 

As seen, to the Government, facts were irrelevant. Our alleged “crime” was essentially a moving target. At pretrial, for 19 months, the Government told the public that PPSA was ‘in essence, a pill mill.” At trial, it told the jury that PPSA was not a “pill mill” but a “money mill.” Then after our convictions, PPSA was once again a “pill mill,” or rather, a “massive pill mill.” How could one defend himself against such criminal prosecution?

 

The Bottom-line

 

In his book, “The Criminalization of Medicine: America’s War on Doctors” (Praeger Publishers, 2008), the author, Ronald T. Libby, a Professor of Political Science and Senior Research Fellow at the Blue Cross and Blue Shield Florida Center of Ethics at the University of North Florida, opined on seizing doctors’ assets in supporting the prosecution of doctors:

 

“Seizing doctors’ assets was a recurring theme at a NAAI training conference held in Ft. Lauderdale; Florida, in July 2003. For example; Greg Aspinwall of the Miami Dade Drug Task Force stressed the importance of taking an aggressive task force approach to diversions by using the theme “spreading the love.” He said that as many law enforcement agencies as possible should be involved in investigations; it reduces the cost and guarantees that “everybody gets fair cut from the forfeiture. He noted that even if there were no criminal charges, they can bring civil action to recover the cost of an investigation.” (p. 136)

 

Apparently the Government treated the prosecution of physicians as a lucrative business – a business opportunity of taking away properties from physicians and then dividing them among the government agencies themselves.

 

Therefore, it is never about how certain specialty medicine was practiced, so long as the Government could come up with an excuse that would allow it to seize one’s properties. Pain management physicians have become the easiest targets because the Government can easily claim that the controlled medications one prescribed in treating his patients is “inappropriate” or “unlawful” according to the Government agents’ assertion, then the doctor instantly becomes a “drug dealer,” his patients become “drug addicts,” and his practice of medicine becomes “drug trafficking.” As a result, all his personal and business properties become “criminal gains,” which are subject to seizure. This way the physician’s entire earnings accumulated in his lifetime can be sweepingly taken away. This is exactly what happened to us.

 

In 2017, Adam W. Overstreet, a former prosecutor who was involved in our prosecution, bragged about his prosecutorial experience when he joined a law firm, Burr & Forman, LLP. Overstreet published an article in “Lexology” titled “DOJ Devotes Resources, Vows to Come After Pill Mills.” He wrote:

 

“I was a member of a prosecution team that secured guilty verdicts…against two pain management doctors in Mobile, Alabama following a nearly two-month long trial…The doctors received substantial prison sentences of 20 and 21 years, respectively, forfeited virtually all of their personal assets to the government, and were ordered to pay $5 million dollars money judgment – in addition to $15 million in restitution to various private and public health insurers.”

 

Indeed the Grand Jury Indictment in my case essentially served as a special permit authorizing the Government to seize my assets – everything I had earned in my medical career as an interventional pain physician and from other businesses. The Original Indictment charged Dr. Couch and I with two felony Counts of conspiracies, but none had probable cause. Less than one third of the space in the Original Indictment was used to describe our “crime,” more than two thirds were dedicated to the list of seized properties including various personal and business bank accounts, real estate properties, and automobiles.

 

Further, the Government investigation spanned more than 18 months, from October 2013 to May 1015. Just as Page Pate pointed out in his “Pill Mill” article, the Government clearly knew that our prescribing of controlled medications did not put our patients at risk because it allowed us to continue practicing for 18 months while they conducted its massive investigation, which was laden with various misconduct. Next I will focus on the evidence relating to the video recordings of undercover activities at PPSA.

 

Undercover Activities Relating to Dr. Couch

 

On August 5, 2014, an undercover agent, Deputy Patrick Shawn Kelley, posing as patient, Shawn Brennan, came to PPSA’s Springhill Avenue clinic to see Dr. J. Patrick Couch (my partner and co-defendant) for lower back pain. Brennan was referred by a chiropractor, Dr. John Wetzel, who provided all Brennan’s medical records including multiple office visits notes and a lumbar MRI report. All these records were faxed to PPSA prior to Brennan’s arrival at PPSA. Brennan was wearing a hidden camera with a video/audio recorder. Shortly after having talked to a PPSA receptionist, Brennan was shocked when he was turned away because he was a cash-paying new patient. The video recording played the following exchange at trial:

 

Brennan: I was referred by my chiropractor, Dr. Wetzel…he should have sent my MRI and everything up here. Receptionist: You don’t have insurance?

Brennan: No.

Receptionist: We don’t take patients…cash.

Brennan: Even with my doctor’s referral, I can’t – I can’t come here? Receptionist: Not without insurance. (Tr. 1/20/2017, p. 1864)

 

The above exchange was the most compelling evidence that PPSA was not a pill mill because no pill mills under the sun would refuse to accept cash-paying new patients. As I have shown earlier, pill mills are cash-paying business that do not involve insurance billing, as was discussed in Dr. Lynn Webster’s 2012 article, “When Pill Mill is Really a Pill Mill.” Brennan knew all other pill mills accepted only cash; that’s why he came with cash.

 

Brennan left the building and called the DEA Special Agent Michael Burt, asking “How are we going to play that?” (Tr. 1/20/2017, p. 1866) Shortly, Dr. Wetzel called PPSA (Tr. 2/9/2017, p. 4994). He vouched for Brennan, saying that Brennan was his patient and a business owner and had sufficient funds, etc.. PPSA Chief Operations Officer, Debi Phillips, ended up taking over the conversation. Using threatening language, Dr. Wetzel demanded Brennan be taken as a new patient. Debi recalled something like: what kind of practice are y’all – I am going to tell people about this (implying PPSA cherry-picking). Debi finally relented by approving Brennan for one visit only. {Id., p. 4998; Id., p. 5001)

 

If not for Dr. Wetzel’s fake referral, fake records, and his insistence and intimidation, Brennan would have never been accepted by the PPSA as a new patient. Somehow, Brennan was seen several times, despite that he was originally approved by Debi for one visit only. The Second Superseding Indictment charged Dr. Couch three Counts of substantive drug dispensing: Counts 5, 6, and 7, for prescribing Schedule II opioid to Brennan.

 

Undercover Activities Relating to My Practice

 

In the Spring of 2015, the Government sent out two undercover agents, Timothy R. McDermott (T.R.M.} and Thomas 0. Massino (T.O.M.) to PPSA’s Airport Boulevard clinic to see me for chronic pain management. The Government apparently learned its lesson in Brennan that PPSA did not take any cash-paying new patients. Both T.R.M. and T.O.M. came with BC/BS insurance cards. They were referred to PPSA by their primary care doctors with medical records including clinic progress notes and updated MRI reports. They secretly recorded their visits at PPSA.

 

T.R.M came to PPSA on February 25, 2015, with a complaint of right shoulder pain for nine months. He brought with him a recent shoulder MRI. The video recording showed that he was thoroughly evaluated: a detailed history was taken followed by a comprehensive physical examination by my nurse practitioner Matthew Bean. I also performed a focused physical examination and listened to his heart and lungs using a stethoscope. The video recording showed I personally advised T.R.M.:

 

“In a patient with your condition, see a sport medicine doctor or a surgeon, as you don’t want to miss any opportunity for surgical repair…We will give you some medications for your condition, but NO CONTROLLED DRUGS.” (T.R.M. Video.

Segment 7 of 8, starting at 15:37)

 

“The best shoulder doctor is Dr. Lane, who has (done) fellowship training in shoulder treatment, you can get a more definitive treatment rather than (we) put you on an opioid.” (Id.)

 

“lf a patient, e.g., who really has debilitating conditions evolving into chronic pain that has failed the conventional treatment, sometimes we use opioid, not for this. You have to exhaust or (have) tried other therapies: acupuncture can be tried, and physical therapy can be tried.” (Id.)

 

Did I sound like a doctor who was running a pill mill”? To T.R.M. I prescribed only a topical analgesic ointment. No controlled drug was prescribed. T.R.M. did not return for follow-up visit.

 

T.O.M. came for a new patient evaluation on February 12, 2015, with a complaint of lower back pain for more than two years. His lumbar MRI done elsewhere was normal. The video recording again showed he was cordially greeted, professionally triaged, and thoroughly evaluated by my nurse practitioner Matthew Bean. I also performed a focused physical examination myself. I explained to him that his lumbar MRI (done elsewhere that showed normal finding) did not explain his lower back pain. I told him: “We need to repeat the lumbar MRI. I also explained why his lower back pain should not be treated with an opioid. I prescribed him some anti-inflammatory medication with a muscle relaxant.

T.O.M. actually came back to PPSA for a lumbar MRI on March 10, 2015. Then he had a follow-up visit with my nurse practitioner and myself on March 12, 2015. At that visit, he requested oxycodone, saying that he “got it from his mend and it really worked well.” I again decided he should not be prescribed any controlled medication. T.O.M. did not return afterwards.

 

These video recordings clearly show that I did not prescribe any controlled medication to T.R.M. or T.O.M., let alone overprescribing. I saw them personally and provided multi-disciplinary pain management, obtained proper diagnostic study to document their pain, recommended other treatment modalities and personally advised them why their pain should not be treated with an opioid,

 

 

The Original Indictment Charged Me and Dr. Couch with A Drug Trafficking Conspiracy

 

On April 30, 2015, about two months after my evaluations of T.R.M. and T.O.M. at PPSA in which I did not prescribe any controlled mediation, I was indicted for committing a drug trafficking conspiracy with Dr. Couch. The indictment contained two Counts. Count One states: “The defendants conspired with each other…to knowingly, willfully, and unlawfully distribute and dispense, and cause to be distributed and dispensed, Schedule II controlled substances…in violation of 21 U.S.C.S. Section 841(a). All in violation of 21 U.S.C.S. Section 846.

 

The question is: Were those videos recorded by T.R.M. and T.O.M. shown to the Grand Jury when the prosecutors sought the approval in returning the Indictment? The videos were essentially exculpatory evidence, and they were of Government’s own creation without my awareness. They were self-evident, reliable, independent of witnesses’ memory, and highly probative in showing that my prescribing of controlled medications was selective, meticulous, and responsible because neither T.R.M. nor T.O.M. received any controlled medicine. Such evidence was completely opposite to the allegation in the Indictment charging me conspiring with Dr. Couch in unlawfully prescribing controlled medications. Had1his evidence been provided to the Grand Jury, would it have returned the Original Indictment charging me with a drug trafficking conspiracy?

 

Again the Original Indictment had only two Counts. Count One was for drug trafficking conspiracy. The evidence of my undercover activities squarely refuted that charge. Therefore, Count One was charged without probable cause. Count Two was for conspiracy to commit healthcare fraud, alleging our UDS and GC/MS testing was unnecessary and fraudulent, but the Government reversed this on its Second Superseding Indictment, which admitted that GC/MS can be a legitimate part of the practice of pain management.” At trial expert witnesses on both sides testified that GC/MS was not only necessary but also beneficial. The prosecutor, Mr. Bodnar, even admitted himself in his closing argument that “there was no question that GC/MS testing is a good idea.” On this basis, Count Two was charged without probable cause simply because it was based on the false premise.

 

Since neither Count One nor Count Two had probable cause, my arrest and the seizure subsequent to an Indictment without probable cause directly violated the Fourth Amendment, which, in relevant part, provides “The right of the people to be secured in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”

 

Another compelling piece of evidence of excessive seizure is: The Original lndictment listed 13 automobiles from my car company (XLR Exotic Autos) to be seized by the Government, but the Government actually took 18, i.e. five more vehicles were hauled away even if they were not on the Original Grand Jury Indictment. This simple fact that Government agents overbearingly took away vehicles not listed in the Original Indictment proved what the Government was truly after. The above five cars were later added in the Government’s Superseding Indictment returned six months later in October 2015.

 

To Pressure the Defendants to Agree with Government’s Plea Proposal, Prosecutors Threatened to Bring and Did Bring More Serious Charges, such as RICO, Death Enhancement, in the Superseding Indictments without Probable Cause.

 

After the return of the Original Indictment, the prosecutors on multiple occasions contacted attorneys representing Dr. Couch and myself, urging us to plead guilty. We had separately attended a couple of prosecutors’ “reverse proffer” meetings in the presence of our lawyers before the Superseding Indictment was returned in October 2015. At these meeting, the prosecutors would give a presentation to show how damning the “evidence” was – according to their own misconception.

 

I recall attending such a proffer meeting on August 14, 2015, around 10:00 a.m., where my lawyers Dennis Knizley, Page Pate, Jason Darley and I attended the meeting. Ms. Deborah Griffin, Mr. Chris Bodnar, and several federal agents were there. Ms. Griffin ran the show; Mr. Bodnar looked like her assistant. Ms. Griffin showed a PowerPoint presentation with much fabricated “evidence.” I recall one slide showing that patients from more than 30 states came to PPSA for pills. I knew right away that the prosecutors had no misgivings in using fabricated evidence in our case.

 

At trial the Government cooperating witness, J—- P—-, Dr. Couch’s former nurse practitioner, who had pled guilty, testified regarding the subject of out-of-state patients during his direct examination by the prosecutor Ms. Deborah Griffin:

 

Q: Did you have any patients from out of state?

A: I did.

Q: Do you recall any of these states?

A: Mississippi, Florida. I think I had one lady from Tennessee. I think it was mainly the surrounding states.

Q: You don’t recall any patients from further away than the ones you mentioned?

A: No. I can’t say I do. (Tr. 1/26/2017, p. 2899)

 

The distance from PPSA’s Springhill Avenue clinic to Florida’s Escambia County is 43 miles, and that from PPSA’s Airport Boulevard clinic to Moss Point of Mississippi is 30 miles. So, it was not unusual to see patients coming to PPSA from these two neighboring states. Some of our patients relocated to other states but still returned to PPSA for continued pain management.

 

Yet, the Government deliberately propagated the disinformation that “patients from more than 30 states came to PPSA for pills” to fool the public.

 

Ms. Griffin’s Expressly Stated That the Government Would Bring More Serious Charges If I Did Not Plead Guilty

 

At the “reverse proffer” meeting, Ms. Griffin expressly warned me if I did not agree with pleading guilty, then the prosecutors would bring more serious charges including RICO and Death Enhancement in the Superseding Indictment. She was straightforward in saying to the effect of: Once a RICO charge was filed, the Government would also seek Death Enhancement; PPSA’s patients could sue me under the RICO charge, and I would never be able to practice medicine in the U.S., etc.

 

I kept total silence during the meeting as my lawyers advised. Later through my lawyer I repeatedly conveyed to the prosecutors that I would not consider any plea bargain. Sure enough, the First Superseding Indictment was returned in October 2015, charging me and Dr. Couch with RICO conspiracy and 18 other felonious charges. The total Count of charges increased from 2 in the Original Indictment to 19 in the First Superseding Indictment.

 

Afterwards the prosecutors repeatedly contacted my counsel urging plea negotiation, expressing that they would bring another Superseding Indictment charging me with Death Enhancement, if I refused to participate in plea negotiation with them. On April 27, 2016, one day prior to the return of the Second Superseding Indictment that would include Death Enhancement charges, my lead trial lawyer, Dennis Knizley, sent me an email, informing me that the prosecutors had contacted him again, one day prior, offering me the final opportunity to consider their plea deal. Knizley’s email was also shared with my other lawyers including Page Pate, Jason Darley, and Steve Martinie. I will paste part of it below:

 

“Dr. Ruan,

 

Please see the email below. It is again a proposal from the U.S. Attorney to discuss a plea bargain in this case. I was contacted Tuesday night after our meeting by both U.S. Attorneys wanting to know if Dr. Ruan was interested in discussing a plea bargain before the death cases were presented to the Grand Jury today. I told them as I have several times in the past my client was going to trial and neither he or I wanted to discuss plea bargain….

 

I was contacted again today. As the email below says after the close of business today any plea would be to RICO and additional counts. I once again told them my client and I have no interest in pleading guilty…

 

You have repeatedly, clearly and adamantly informed me you have no intention of pleading guilty in this case. I completely respect that and I am totally in support of your decision. Ihave a legal and ethical duty, however, and the law specifically requires me as your lawyer to give you this last opportunity to enter into plea negotiations before these new cases are indicted tomorrow.

 

If the indictment charges the death cases, they could possibly carry minimum mandatory penalties of 20 years to life in prison without parole, in addition to the penalties we have discussed that are associated with the present charges.

 

If you would like to further discuss this final offer, please let me know. If your position is the same as it has consistently been, I look forward to our continuing preparation for the trial of this case.

 

Thanks.”

 

The next day, on April 28, 2016, the Second Superseding Indictment was returned, it dropped some Counts but added several substantive drug dispensing Counts, four of which carried Death Enhancement: two for Dr. Couch and two for me. The total number of Counts stood at 22.

 

 

The Death Counts had been Added Solely to Intimidate and Distract the Defendants and They Were Dropped before the Start of the Trial.

 

Ms. Griffin did exactly what she had expressly warned me at the “reverse proffer” meeting: More serious charges such as RICO and Death Enhancement were added in the subsequent Superseding Indictments, solely to pressure and intimidate the defendants because we refused to plead guilty. These new charges were brought without probable cause. The prosecutors already knew the defendants were penniless due to the Government’s massive seizure – both Dr. Couch and I had already cashed out our 401K in entirety to fund our seven-week jury trial. To defend against those Death Counts, we would need to find more funds to hire forensic pathologists to provide expert opinion showing that those patients’ deaths had nothing to do with their medications prescribed by us and to prepare the pathologists to testify at trial.

 

Eight months later, at the pretrial hearing, however, Ms. Griffin informed the district court that the Government decided to drop the Death Counts. (Tr. 1/3/2017, p. 28). As seen the prosecutors added those Death Counts only to pressure and intimidate us to agree with their plea proposal. They knew they could not prove their case; that’s why they dropped them before the trial started. It is extremely disturbing to see that the prosecutors could toy with charging defendants anything under the sun without probable cause, solely to intimidate and retaliate against us for exercising our constitutional rights to a jury trial. The Sixth Amendment in relevant part provides: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.” Undeniably the prosecutors’ misconduct violated our Sixth Amendment rights.

 

Our RICO conspiracy conviction is the most absurd. First the RICO charge was brought without probable cause. As a result of extensive prosecutorial and judicial misconduct that allowed the admission of false, improperly coached, perjured, and fabricated testimony (shown below), together with repeated juror misconduct, the jury returned a guilty verdict on the RICO conspiracy charge – an unprecedented prosecutorial achievement.

 

 

Prosecutors’ Historical Win in Convicting Dr. Couch and Myself for RICO Conspiracy for Which They Received DOJ’s Award

 

On September 18, 2019, a local newspaper in Mobile, Alabama, published a report, titled “Physicians appeal convictions as feds continue to prosecute ‘over prescribers'” (Lagniappe, Mobile, Alabama). It so stated:

 

“Ruan and Couch’s case marked the first time in U.S. history that any medical professional had been convicted at trial under the Racketeer Influence and Corrupt Organizations (RICO) Act. It also led to the recognition for Assistant U.S. Attorneys Deborah Griffin and Christopher Bodnar, who prosecuted the case. They and their team received an Executive Office for U.S. Attorneys Director’s Award for that work… – a designation only 10 Department of Justice cases receive annually.”

 

Further, at my sentencing hearing on May 26, 2017, Mr. Bodnar told the court: “It is the United State’s position and we believe it was heavily borne out by the evidence that Dr. Ruan was the undisputed leader” (Tr. 5/26/2017, p. 54); “Dr. Ruan ran this organization. He should receive a much higher sentence than Dr. Couch.” (Id., p. 61). The district court, Judge Granade so concluded: “I agree with the government’s position that Dr. Ruan was in fact the leader of both the fraud offenses and the racketeering enterprise.” (Id., p. 64). So, I became the first convicted physician RICO leader in U.S. history.

 

Our trial is indeed exceptional. Since the Indictments were brought without probable cause, the prosecutors could only rely on inflammatory rhetoric, fallacy, distortion, and deception to mislead the jury. At trial the prosecutors extensively introduced knowingly unreliable, perjured, inappropriately coached, and fabricated testimony, while the district court, Judge Callie V. S. Grenade, Senior District Judge, kept a blind eye and even deliberately committed numerous egregious trial errors.