United States Court of Appeals

for the Fifth Circuit

____________

No. 23-30191

____________

United States of America, 

Plaintiff—Appellee,

versus

Randy J. Lamartiniere, 

Defendant—Appellant.

______________________________

Appeal from the United States District Court 

for the Middle District of Louisiana

USDC No. 3:18-CR-87-1

______________________________

Before Davis, Smith, and Haynes, Circuit Judges.

W. Eugene Davis, Circuit Judge:

A jury convicted Dr. Randy Lamartiniere, an internal medicine 

doctor, of twenty counts of unlawful distribution of controlled substances. 

On appeal, Lamartiniere challenges the district court’s jury instructions and 

the sufficiency of the evidence supporting his convictions. Finding no 

reversible error, we AFFIRM.

United States Court of Appeals

Fifth Circuit

FILED

May 6, 2024

Lyle W. Cayce

Clerk

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I.

A.

At the time of his trial, Lamartiniere had been practicing as a licensed 

physician specializing in internal medicine for approximately thirty years. In 

2012, he was hired as a staff physician at a clinic in Baton Rouge, Louisiana,

operated by Ochsner Health. At first, Lamartiniere mainly saw general 

internal medicine patients, but that started to change in 2013 as he saw a 

growing number of chronic pain patients. By 2014, Ochsner began to develop 

concerns about Lamartiniere’s management of opioid and narcotic 

prescriptions and his inability to timely maintain his patient records. After 

several warnings, Ochsner terminated Lamartiniere at the end of 2014. 

Following his termination from Ochsner, Lamartiniere opened his 

own “direct primary care” practice in early 2015. At his new practice, 

patients paid a $300 membership fee in exchange for three months of medical 

care for any issue that arose during that time period. The practice accepted 

neither insurance nor Medicaid. Although Lamartiniere testified that he 

initially hoped to see mostly internal medicine patients, within a year of 

opening the practice, he had between 200-250 patients, eighty percent of 

whom were pain management patients. 

In early 2015, shortly after Lamartiniere opened his practice, the Drug 

Enforcement Administration (“DEA”) launched an investigation into his

prescription practices after receiving a tip from a confidential informant. As 

part of the DEA’s investigation, it recruited two undercover agents to pose 

as chronic pain patients seeking controlled substances from Lamartiniere. 

Over the course of almost six months, the undercover agents, outfitted with 

recording devices, visited Lamartiniere’s practice a total of nine times, each 

time leaving with a prescription for a controlled substance. In November 

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2015, the DEA executed a search warrant for fifty patient files from 

Lamartiniere’s practice. 

In 2021, a superseding indictment charged Lamartiniere with twentyeight counts1 of unlawful distribution of Schedule II controlled substances in 

violation of 21 U.S.C. § 841(a)(1). Counts 1 through 7 of the superseding 

indictment charged him with prescribing controlled substances to seven 

patients on January 5, 2016, after the Louisiana State Board of Medical 

Examiners (the “Medical Board”) suspended his state license to prescribe 

controlled substances. The remaining counts charged Lamartiniere with 

unlawfully prescribing controlled substances to the two undercover agents, 

Matthew Dixon and Craig Crawford, and four former patients, Charles 

Henson, Brian Boudreaux, Jeremy Doiron, and Fredrick Aughey.

B.

At trial,2the Government called nine witnesses, including 

Lamartiniere’s former patients, the undercover agents, and expert witnesses. 

Additionally, the Government played for the jury recordings of the 

undercover agents’ appointments with Lamartiniere. Lamartiniere testified 

in his own defense and presented testimony from his former legal counsel. 

Below is a sampling of that testimony.

Both undercover agents testified about their visits with Lamartiniere 

between April and September 2015. Detective Dixon testified that at his first 

appointment, he told Lamartiniere that he had pain in his right leg from an 

old sports injury. After Lamartiniere conducted “some sort of examination 

_____________________

1 The superseding indictment charged Lamartiniere with thirty counts, but the 

district court granted the Government’s motion to dismiss two counts. 

2 This case was initially tried without a jury on December 6-7, 2021, and ended in 

a mistrial. 

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or manipulation” of Dixon’s back, he diagnosed Dixon with a “disorder of 

[the] lower extremity.” 

In a recording of the visit, the jury heard Dixon tell Lamartiniere that 

a friend of his would “hook” him up with a “Lortab3 or something like that” 

if his leg bothered him. Lamartiniere responded that getting medication 

without a prescription was illegal. However, he said he could prescribe some 

pain medication for Dixon, despite acknowledging that “Aleve, Tylenol of 

course will work fairly well too” and are “[a] little bit more legal.” After 

Dixon said Aleve and Tylenol were ineffective, Lamartiniere wrote him a 

prescription for thirty 7.5-milligram Norco4 pills, which he estimated would 

last Dixon “a couple of months, at least.” 

At Dixon’s second appointment, he told Lamartiniere that his left leg 

(instead of his right leg as initially reported) was the source of his pain. 

Although it was only ten days after his initial appointment, Lamartiniere 

wrote Dixon a prescription for ninety 7.5-milligram Norco pills. Dixon then 

requested a prescription for Adderall, telling Lamartiniere that he took some 

of his co-worker’s “addies”5 and it helped him stay awake. Lamartiniere 

explained to Dixon that taking Adderall for that purpose was illegal and that 

using Adderall to stay awake was a non-indication for adult attention deficit 

disorder (“ADD”). However, after Dixon said a prior doctor had prescribed 

him ADD medication and that he had trouble focusing on various tasks, 

Lamartiniere eventually agreed to prescribe Dixon 20-milligrams of Adderall. 

_____________________

3

 Lortab is a brand name for hydrocodone, a Schedule II opiate typically prescribed 

to treat pain. 

4 Norco is another brand name for hydrocodone. 

5 Dixon testified that “addies” is common street terminology for Adderall. 

Adderall, another Schedule II substance, is a stimulant. 

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During his next appointment, Dixon identified his right leg as the 

source of his pain and asked Lamartiniere for “something better” than 

Norcos to “make [him] feel better.” Lamartiniere agreed to switch him to 

Percocet6 and wrote him a prescription for ninety tablets of 10-milligram 

Percocet. During this appointment, Lamartiniere did not conduct a physical 

exam or order any medical tests before switching Dixon to a stronger 

medication. 

During Dixon’s final appointment, Lamartiniere raised concerns that 

there was no indication in Louisiana’s prescription monitoring program 

(“PMP”)7that Dixon had picked up his prior prescriptions. Dixon had 

previously said that he filled his prescriptions in Texas. Lamartiniere 

requested that going forward Dixon fill his prescriptions in Louisiana so he 

could track them on the PMP. He explained that in order to prescribe 

controlled substances, he was required to have documentation that Dixon 

was filling his prescriptions. Without such documentation, Lamartiniere

acknowledged that he was “kind of losing track of things” and needed “to do 

a better job of recording” Dixon’s prescriptions. 

When Lamartiniere informed Dixon that he was going to drug test 

him, Dixon responded that he had not taken his prescribed medications in 

several weeks because he ran out early. Lamartiniere told Dixon this created 

a problem because in order to ensure prescriptions were not diverted, he 

needed to either drug test him or monitor his prescription refills and that he 

_____________________

6 Percocet is a brand name for oxycodone (combined with Tylenol) and is a 

Schedule II opiate typically prescribed to treat pain. Oxycodone is one and a half times 

stronger than hydrocodone. 

7 Louisiana’s PMP is a database that provides registered physicians in the state 

access to reports on what controlled substances were prescribed to patients and how many 

of those prescriptions have been filled within Louisiana. 

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was “doing neither of those” in Dixon’s case. He further told Dixon that 

“[u]nfortunately they treat doctors like they’re supposed to be detectives 

these days. They can take licenses [away] for not doing that kind of stuff.” 

Although Lamartiniere emphasized that he needed Dixon’s pharmacy 

records going forward, he still agreed to provide Dixon with his prescriptions 

for Adderall and Percocet. 

The jury also heard testimony from Crawford, the second undercover 

officer, who saw Lamartiniere four times between July and September 2015. 

At his first visit, Crawford informed Lamartiniere that he had a weightlifting 

injury from ten to fifteen years ago that made his leg feel “funny.” Crawford 

said he did not have a prescription for pain medication, but he had gotten “a 

couple of roxies”8from his friend that made him “feel good.” Lamartiniere 

asked Crawford whether he had any history of drug abuse, and Crawford said,

“No. Like I said [I] take a couple of . . . .” Lamartiniere interrupted 

Crawford, finishing his sentence, “[b]ut nothing on a really regular basis, not 

large amounts or nothing . . . ,” to which Crawford responded, “No.” 

After Lamartiniere examined Crawford for a few minutes, he 

diagnosed Crawford with a nerve issue and a bulging disc. For Crawford’s 

pain, Lamartiniere suggested a Schedule IV narcotic, but Crawford insisted 

he wanted “roxies.” Lamartiniere informed Crawford that his symptoms 

“are really not something . . . [that] any doctor should prescribe a . . . major 

narcotic [for,] at least up front.” Nevertheless, Crawford left his first 

appointment with a prescription from Lamartiniere for forty-five 5-milligram 

Norco tablets. 

At his next appointment, Crawford asked for a stronger prescription. 

Lamartiniere again suggested less addictive medications as an alternative, but 

_____________________

8 “Roxies” is slang for Roxicodone, a brand name for oxycodone. 

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ultimately agreed to write Crawford a prescription for seventy-five tablets of 

7.5-milligrams of Percocet. Lamartiniere warned Crawford that the 

“problem is all these pain medicines are addictive” and that people “develop 

a tolerance to them,” which is especially concerning “for someone that’s not 

really in a lot of pain as you said.” 

Crawford testified that at some point during his second appointment,

Lamartiniere’s demeanor changed when he informed Crawford that

Louisiana’s PMP showed no record of Crawford’sfilling his last prescription. 

Crawford told Lamartiniere he filled his prescription in Mississippi, to which 

Lamartiniere said he would only give Crawford one more prescription unless 

he came back with records confirming he had filled his prescription. 

Lamartiniere told Crawford it was important to fill his prescriptions in 

Louisiana because “they’re using people like you around to catch doctors like 

this, so . . . that’s why I have to be careful.” Lamartiniere also asked 

Crawford about getting an MRI of his back, again emphasizing that he had to 

be “careful” about “treating things without an MRI or records” because it 

“doesn’t look right.” 

At his third appointment, Crawford again asked Lamartiniere for 

stronger medication that would last longer. Lamartiniere said he could 

increase Crawford’s dose of Percocet to 10-milligrams and give him ninety

pills, but beyond that he would “really have to start thinking about . . . [having 

an] MRI[] done.” Lamartiniere also asked Crawford to sign a pain 

management agreement and said that, if Crawford was unwilling to do so, he 

would not continue prescribing him pain medication. Yet, when Crawford 

refused to sign the agreement, Lamartiniere still gave him a prescription for 

ninety 10-milligram Percocet tablets. 

At his final appointment, Crawford testified that based on his 

experience investigating narcotics cases, he noticed an individual in 

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Lamartiniere’s waiting room who appeared to be under the influence of a 

Schedule II narcotic. Once he was taken back to see Lamartiniere, Crawford 

asked for another Percocet prescription because “a guy” had stolen his prior 

prescription. Lamartiniere told Crawford that the only way to get another 

prescription would be to have a police report, but that it was “hard to get 

police to write reports on stolen drugs because they know that some people 

will use that to get more medicine.” Lamartiniere agreed to write Crawford 

another prescription for Percocet without a police report. 

Charles Henson and Brian Boudreaux9—two of Lamartiniere’s 

former patients—also testified. Henson testified that he suffered from a 

slipped disc and chemical exposure that impacted his lungs and nerves. He 

began seeing Lamartiniere in 2015, after his prior doctor no longer prescribed 

him pain medication. Henson testified that at his first appointment,

Lamartiniere performed a physical examination and required Henson to

provide copies of his prior MRI and CAT scans, as well as proof of his prior 

prescriptions. 

Between March and November of 2015, Lamartiniere prescribed 

Henson Adderall and two pain medications: oxycodone and Opana,10 and he 

increased the dosage of the pain medications over time. During this time 

period, Henson testified that Lamartiniere would conduct random drug 

screens, but that he did not recall Lamartiniere’s ever discussing the results 

of his tests with him. However, Lamartiniere’s patient files show that 

Henson’s July 7, 2015, drug test was positive for methadone, morphine, and 

marijuana. Despite the positive test, Lamartiniere wrote Henson a 

_____________________

9 Boudreaux did not appear at trial, and instead the jury was read his testimony 

from the prior bench trial in this case. 

10 Opana is a “formation” of oxymorphone, and oxymorphone in turn is a 

“breakdown product” of oxycodone. Oxymorphone is twice as strong as oxycodone. 

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prescription for Opana on July 24, 2015, and increased the quantity of pills 

prescribed. Henson admitted that he was addicted to pain medication before 

he began seeing Lamartiniere and that only after his final appointment with 

Lamartiniere did he enter a rehabilitation program. On cross-examination, 

however, Henson agreed that Lamartiniere was “one of the hardest pain 

doctors . . . to obtain narcotic medications.” 

Boudreaux, another former patient, testified that he began seeing 

Lamartiniere in March of 2015 for pain management after he was in a car 

accident. Boudreaux testified that Lamartiniere would drug test him 

occasionally at first. After Boudreaux tested positive for heroin and tested 

negative for his prescribed medications, Lamartiniere switched to testing him 

at each appointment. Following the positive test, Lamartiniere agreed to 

continue prescribing Boudreaux oxycodone and Adderall, but instead of 

writing him a thirty-day prescription, as he usually did, Lamartiniere gave 

him only a seven-day prescription. Seven days later, however, Lamartiniere 

returned to writing Boudreaux thirty-day prescriptions. After Boudreaux 

stopped seeing Lamartiniere, he was arrested for distribution of oxycodone. 

Dr. Cecilia Mouton, the former Director of Investigations for the 

Medical Board, also testified for the Government. She testified that in early 

2015, the Medical Board opened an investigation into Lamartiniere after 

receiving complaints about his “manner of prescribing controlled 

substances,” including a complaint from a pharmacist who was 

uncomfortable filling Lamartiniere’s prescriptions. Based on the 

investigation, on November 24, 2015, the Medical Board issued an 

emergency partial suspension of Lamartiniere’s medical license which 

prohibited him from prescribing controlled substances. The Medical 

Board’s suspension letter stated that it had information indicating that 

Lamartiniere was “prescribing controlled substances without appropriate 

medical justification or in a manner without concern for patient safety.” It 

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further stated that the Medical Board was “persuaded that Dr. 

Lamartiniere’s continued ability to prescribe controlled substances to his 

patients could constitute a risk of imminent patient harm.” The partial 

suspension of Lamartiniere’s state license did not rescind his DEA 

certification to prescribe controlled substances.11 

Dr. Mouton testified that in early December of 2015, she met with 

Lamartiniere and his legal counsel. During that meeting, Lamartiniere asked 

for a thirty-day delay of the Medical Board’s suspension, which had taken 

effect on November 24. Although Dr. Mouton agreed to recommend a delay

to the Medical Board, she told Lamartiniere she did not have the authority to 

make that agreement herself. The Medical Board ultimately adopted Dr. 

Mouton’s recommendation and sent Lamartiniere a notice with an updated 

suspension date of December 30, 2015. According to a delivery receipt, 

Lamartiniere signed for a package containing the notice on January 4, 2016. 

The Government additionally called Dr. Gene Kennedy as an expert 

in prescribing controlled substances in a family practice and pain 

management setting. Before testifying, Dr. Kennedy reviewed eighteen 

patient charts and PMP reports, “a few” drug screens, and the videos and 

transcripts from the undercover agents’ appointments. Based on his review, 

Dr. Kennedy testified in detail about the deficiencies he found in 

Lamartiniere’s patient charts, emphasizing Lamartiniere’s lack of 

documentation regarding physical examinations and prior medical records. 

Dr. Kennedy also expressed concern that Lamartiniere did not repeatedly 

_____________________

11 The Government provided testimony from a DEA investigator about the DEA’s 

registration process for practitioners. The investigator explained that “[a]nyone who 

handles controlled substances must be registered with the DEA,” and that in order to 

obtain such a registration, the practitioner must also “have appropriate licensure from 

[their] state.” 

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drug test his patients. He additionally opined that some of Lamartiniere’s 

prescriptions lacked an adequate diagnostic basis. For example, Dr. Kennedy 

testified that Lamartiniere’s diagnosis of Dixon with “disorder of the lower 

extremity” was “so vague as to be essentially a useless diagnosis.” He also 

stated that Lamartiniere prescribed Dixon Adderall for an established 

“illegitimate purpose” and without a diagnosis of ADD. 

Throughout his testimony, Dr. Kennedy emphasized that 

Lamartiniere’s response to obvious signs of drug abuse in his patients fell 

outside the standard of care. For instance, Dr. Kennedy testified that it was 

concerning that after Boudreaux tested positive for heroin, Lamartiniere’s 

only response was to limit his prescriptions for a week. This lack of 

monitoring was especially concerning given that Boudreaux’s PMP report 

showed that he was receiving controlled substances from seven physicians 

and filling those prescriptions at eleven different pharmacies, which Dr. 

Kennedy characterized as “alarming . . . doctor shopping as well as pharmacy 

shopping.” Additionally, Dr. Kennedy testified that Henson’s positive test 

for methadone12 was particularly concerning because methadone’s potential 

to interact with controlled substances could be “perilous.” However, shortly 

after receiving Henson’s positive test, Lamartiniere increased his quantity of 

Opana, a controlled substance. 

Dr. Kennedy also discussed Lamartiniere’s prescriptions to Jeremy 

Doiron, a former patient who did not testify at trial. Dr. Kennedy testified 

that Lamartiniere prescribed Doiron methadone and oxycodone pills in 

“alarming” quantities over a two-week period in August 2015. 

Lamartiniere’s chart on Doiron noted that he was in a motor vehicle accident 

and that an emergency room physician diagnosed him with drug abuse. Of 

_____________________

12 Methadone is another Schedule II controlled substance. 

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particular note to Dr. Kennedy was that although Lamartiniere 

acknowledged this diagnosis, he proceeded to increase Doiron’s dosage of 

methadone following the accident. In fact, eight days after Lamartiniere 

wrote Doiron a prescription for methadone and oxycodone, he wrote Doiron

a second prescription for the same medications as a “replacement supply” 

because Doiron’s medication was “destroyed when [his] vehicle caught 

fire.” 

On cross-examination, Dr. Kennedy agreed with Lamartiniere’s 

counsel that it appeared Lamartiniere had a hard time saying “no” to 

persistent patients and was overly trusting of his patients. He clarified later 

in his testimony that the fact Lamartiniere was struggling to say no to his 

patients was an indication that he was running afoul of the pertinent 

regulations because “if there is a struggle, then he [Lamartiniere] recognizes 

that he’s considering something that is wrong.” Ultimately, Dr. Kennedy 

opined that based on patient information he reviewed, each of the charged 

prescriptions in Counts 8 through 9 and 12 through 30 were outside the 

normal course of professional practice and did not serve a legitimate medical 

purpose. 

Dr. Kennedy additionally testified about the prescriptions 

Lamartiniere wrote after he received notice on January 4, 2016, of the partial 

suspension of his state license. He testified that under 21 C.F.R. § 1306.03, 

a physician must have two things before prescribing controlled substances: 

(1) a state registration without any restrictions and (2) a valid DEA 

registration. In light of the partial suspension of Lamartiniere’s state license, 

and based on his review of the patient charts, Dr. Kennedy opined that the 

prescriptions Lamartiniere wrote on January 5, 2016, were not within the 

usual course of medical practice and were not for a legitimate medical 

purpose. 

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After the Government rested its case, Lamartiniere moved for 

judgment of acquittal under Federal Rule of Criminal Procedure 29(a), which 

the district court denied. 

Lamartiniere then testified in his own defense. The thrust of his 

testimony was that each of his chronic pain patients had “legitimate medical 

conditions” that he was genuinely trying to treat. Even as to the undercover 

agents, Lamartiniere testified that at the time he wrote their prescriptions, he 

believed they were in legitimate pain and that the prescriptions were for 

legitimate medical purposes. He emphasized that he monitored his patients, 

including his former patients who testified at trial, for signs of addiction or 

abuse by conducting drug screens, checking the PMP for evidence of doctor 

shopping, and following-up if patients were going through their medication 

too quickly. 

Lamartiniere also discussed the partial suspension of his state license. 

He testified that following his meeting with Dr. Mouton, he was under the 

impression that they had an agreement to delay his suspension that the 

Medical Board would “almost certainly” agree to. Lamartiniere’s 

understanding of that agreement was that his partial suspension would be 

delayed until he could “properly discharge” his patients. Lamartiniere 

testified that he received a letter from the Medical Board on January 4, 2016, 

stating that his license would be partially suspended as of December 30, 2015. 

Despite receiving the letter, Lamartiniere testified that he continued to write 

prescriptions to his patients on January 5, 2016, because he believed he could 

do so based on his tentative agreement with Dr. Mouton. 

C.

At the close of all the evidence, Lamartiniere renewed his motion for 

a judgment of acquittal, which the district court denied. The jury convicted 

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Lamartiniere of twenty counts of unlawful distribution under § 841(a)(1) and 

acquitted him on the remaining eight counts.13

Lamartiniere filed a post-trial brief requesting a new trial under Rule 

33 and renewing his motion for acquittal pursuant to Rule 29(c). In a written 

decision, the district court denied both motions. The court rejected 

Lamartiniere’s challenges to the jury instructions, concluding that the 

instructions had properly defined § 841(a)(1)’s authorization element and 

that the court’s deliberate ignorance instruction was supported by the 

evidence. The court additionally held that “[a]pplying the correct view of 

‘authorization,’ Defendant’s challenge to the sufficiency of the evidence falls 

flat.” Lamartiniere filed a motion for reconsideration based on new Tenth 

Circuit authority, United States v. Kahn (Kahn II),14 which the district court 

denied. The district court sentenced Lamartiniere to 180 months, per count, 

to run concurrently. Lamartiniere timely appealed. 

II.

We start with Lamartiniere’s various challenges to the district court’s 

jury instructions. “We review jury instructions for abuse of discretion if the 

alleged error is preserved below.”15 However, when “a jury instruction 

hinges on a question of statutory construction, this court’s review is de 

novo.”16 In reviewing jury instructions, “[w]e consider whether the jury 

_____________________

13 Specifically, the jury convicted Lamartiniere on all counts pertaining to his postlicense suspension prescriptions and his prescriptions for Doiron, and it acquitted him on 

all counts pertaining to Aughey. As to Lamartiniere’s prescriptions for Henson, Dixon, 

Boudreaux, and Crawford, the jury convicted him on all but four counts, which 

corresponded to prescriptions written during each person’s initial visit with Lamartiniere. 

14 58 F.4th 1308 (10th Cir. 2023).

15 United States v. Fuchs, 467 F.3d 889, 900 (5th Cir. 2006).

16 United States v. Garcia-Gonzalez, 714 F.3d 306, 312 (5th Cir. 2013) (internal 

quotation marks and citation omitted); see also United States v. Ferris, 52 F.4th 235, 239 (5th 

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instruction, taken as a whole, ‘is a correct statement of the law and whether 

it clearly instructs jurors as to the principles of the law applicable to the 

factual issues confronting them.’”17 Any error in a jury instruction is subject 

to harmless-error review.18 

Jury instructions that were not timely objected to are reviewed for 

plain error.19 “[W]e have discretion to reverse a forfeited error only if ‘there 

is (1) error, (2) that is plain, and (3) that affects substantial rights.’”20 If these 

three elements are met, “we may only exercise this discretion if ‘(4) the error 

seriously affects the fairness, integrity, or public reputation of judicial 

proceedings.’”21

On appeal, Lamartiniere argues the district court erred in instructing 

the jury on § 841(a)(1)’s authorization and mens rea elements. He further 

challenges the court’s instruction regarding the state-licensing requirement 

to prescribe controlled substances. Finally, Lamartiniere asserts that the 

district court erred in instructing the jury on deliberate ignorance. We first 

set forth the district court’s jury instructions and then review each of 

Lamartiniere’s challenges in turn. 

_____________________

Cir. 2022) (“[W]hen the instruction is claimed to misstate an element of the offense, 

review is de novo, subject to harmless-error review.” (internal quotation marks and citation 

omitted)), cert. denied, 143 S. Ct. 846 (2023).

17 United States v. Guidry, 406 F.3d 314, 321 (5th Cir. 2005) (quoting United States 

v. Daniels, 281 F.3d 168, 183 (5th Cir. 2002)).

18 Ferris, 52 F.4th at 239.

19 Fuchs, 467 F.3d at 900.

20 United States v. Ricard, 922 F.3d 639, 655 (5th Cir. 2019) (quoting United States 

v. Martinez-Rodriguez, 821 F.3d 659, 662 (5th Cir. 2016)).

21 Id. (quoting Martinez-Rodriguez, 821 F.3d at 663).

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A.

The district court instructed the jury that to find Lamartiniere guilty 

of distributing controlled substances under § 841(a)(1), the Government had 

to prove beyond a reasonable doubt the following four elements: (1) “that the 

Defendant dispensed a controlled substance;” (2) “that the Defendant 

dispensed the controlled substance knowingly or intentionally;” (3) “that the 

Defendant’s dispensation of the charged controlled substance was not 

authorized;” and (4) “that the Defendant knew he was acting in an 

unauthorized manner when he dispensed the controlled substance or 

intended to act in an unauthorized manner.” 

The district court then provided additional instructions defining the 

above elements:

A prescription is authorized if it is issued for a legitimate 

medical purpose by an individual practitioner acting in the 

usual course of his professional practice. 

Both prongs are necessary for a prescription to be 

authorized. One is not sufficient. That is, the prescription 

must be issued for a legitimate purpose and within the usual 

course of a practitioner’s professional practice. 

By contrast, a prescription is unauthorized if the 

prescription either lacks a legitimate medical purpose or is 

outside the usual course of professional practice. In other 

words, knowingly issuing a prescription outside the course of 

professional practice is a sufficient condition to convict a 

medical practitioner of unlawful dispensation of a controlled 

substance. Likewise, knowingly issuing a prescription without 

a legitimate medical purpose is a sufficient condition to convict 

a medical practitioner of unlawful dispensation of a controlled 

substance.

The term “legitimate medical purpose” in the usual 

course of his medical practice is defined by reference to the 

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standard of medical practice generally recognized and accepted 

by the medical profession in the United States.

The district court further instructed jurors that when “considering whether 

the Defendant issued a prescription for a legitimate medical purpose in the 

usual course of professional practice, you may consider all of the Defendant’s 

actions and the circumstances surrounding them.” The court went on to 

instruct that: 

Knowingly keeping insufficient medical records alone 

does not establish the Defendant’s guilt of the charges alleged. 

Likewise, acting outside the standard of care generally required 

of physicians throughout the United States alone does not 

establish the Defendant’s guilt. However, you may consider 

. . . evidence of such facts when determining whether the 

Defendant was acting in an unauthorized manner when he 

dispensed a controlled substance or intended to act in an 

unauthorized manner.

The district court also provided the following good-faith instruction: 

“[a] controlled substance is prescribed by a physician for a legitimate medical 

purpose in the usual course of medical practice and, therefore, authorized if 

the controlled substance is prescribed by him in good faith.” It defined good 

faith “in this context” as “an honest effort to prescribe for a patient’s 

condition in accordance with the standards of medical practice generally 

recognized or accepted in the United States.” 

The court additionally instructed jurors that a prescription for a 

controlled substance “may be issued only by an individual medical 

practitioner who is, one, authorized to prescribe controlled substances by the 

jurisdiction in which he is licensed to practice his profession; and, two, in 

possession of a valid registration from the U.S. Drug Enforcement 

Administration, unless otherwise exempted from that registration 

requirement.” Earlier in the instructions, the court cautioned jurors that 

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even if they found “that the Defendant violated applicable civil or 

administrative rules, regulations, or contract terms, that alone would not be 

a criminal violation. However, civil or administrative rules, regulations, and 

contract terms may be relevant to determine whether a Defendant acted with 

criminal intent; that is, knowingly, intentionally, and without authorization.” 

B.

Lamartiniere first challenges the district court’s instructions defining 

the third element—authorization—of the § 841(a)(1) charge. The statute 

underlying Lamartiniere’s convictions, 21 U.S.C. § 841(a)(1), makes it 

unlawful, “[e]xcept as authorized[,] . . . for any person knowingly or 

intentionally . . . to manufacture, distribute, or dispense . . . a controlled 

substance.”22 In turn, § 822(b) provides that medical practitioners 

registered with the Attorney General “are authorized to possess, 

manufacture, distribute, or dispense” controlled substances “to the extent 

authorized by their registration and in conformity with the other provisions” 

of the Controlled Substances Act (“CSA”).

23

 In other words, “[s]ection 

822(b) defines the scope of authorization under the Act in circular terms.”24 

However, an accompanying regulation promulgated by the Attorney 

General, 21 C.F.R. § 1306.04(a), provides that a prescription is authorized, 

and therefore outside § 841(a)(1)’s prohibition, if it is “issued for a legitimate 

medical purpose by an individual practitioner acting in the usual course of his 

_____________________

22 21 U.S.C. § 841(a)(1) (emphasis added).

23 21 U.S.C. § 822(b).

24 United States v. Moore, 423 U.S. 122, 140 (1975).

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professional practice.”25 In Gonzales v. Oregon,

26 the Supreme Court 

characterized § 1306.04(a) as “a parroting regulation” because it “just 

repeats two statutory phrases[from the CSA] and attempts to summarize the 

others.”27

Consistent with the relevant regulation, the district court here 

instructed the jury that “a prescription is unauthorized if the prescription 

either lacks a legitimate medical purpose or is outside the usual course of 

professional practice.” Lamartiniere contends that the court’s instruction

erred by defining authorization based on a federal regulation. He argues that 

authorization is correctly defined based solely on whether a prescription 

serves a legitimate medical purpose, regardless of whether it is outside the 

course of professional practice. Consistent with his definition of 

authorization, Lamartiniere proposed the following limited jury instruction: 

“[a]s to the third element, [a] defendant acts in an unauthorized manner 

when he distributes a controlled substance other than for a legitimate medical 

purpose.” The district court rejected the limited instruction as contrary to 

established Fifth Circuit precedent and reasoned that the Supreme Court’s 

recent decision in “Ruan [v. United States] did not address—much less 

_____________________

25 21 C.F.R. § 1306.04(a); see also Ruan v. United States, 597 U.S. 450, 454 (2022) 

(“[A]s provided by regulation, a prescription is only authorized when a doctor issues it ‘for 

a legitimate medical purpose . . . acting in the usual course of his professional practice.’” 

(alteration in original) (quoting 21 C.F.R. § 1306.04(a))).

26 546 U.S. 243 (2006).

27 See id. at 257 (“The CSA allows prescription of drugs only if they have a 

‘currently accepted medical use,’ 21 U.S.C. § 812(b); requires a ‘medical purpose’ for 

dispensing the least controlled substances of those on the schedules, § 829(c); and, in its 

reporting provision, defines a ‘valid prescription’ as one ‘issued for a legitimate medical 

purpose,’ § 830(b)(3)(A)(ii) . . . [and] physicians are considered to be acting as 

practitioners under the statute if they dispense controlled substances ‘in the course of 

professional practice[,]’ § 802(21).”).

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disturb—the Fifth Circuit’s two-prong [authorization] test.” Because 

Lamartiniere has preserved his challenge to § 841(a)(1)’s definition of 

authorization, our review is de novo. 

As recognized by the district court, Lamartiniere’s challenge to the 

regulatory definition of authorization is foreclosed by this Court’s precedent. 

In United States v. Armstrong,

28 this Court affirmed jury instructions that 

required the Government to prove that a medical practitioner: (1) 

“prescribed or dispensed the controlled substance alleged in the 

indictment;” (2) “did so knowingly and intentionally;” and (3) “prescribed 

or dispensed the controlled substance either without a legitimate medical 

purpose or outside the course of his or her professional practice.”29 As to the 

third element, we acknowledged that it was “not expressly required by the 

text of § 841, but relevant regulations [21 C.F.R. § 1306.04(a)] provide that a 

controlled substance can be dispensed by a prescription ‘issued for a 

legitimate medical purpose by an individual practitioner acting in the usual 

course of his professional practice.’”30 We further noted that in Gonzales, 

“the Supreme Court determined that § 1306.04 ‘does little more than restate 

the terms of the [CSA] itself.’”31

Armstrong additionally held that “a logical reading of 21 C.F.R. 

§ 1306.04” shows that “[b]oth prongs are necessary for a prescription to be 

legitimate;” and the “logical converse is that a practitioner is unauthorized 

to dispense a controlled substance if the prescription either lacks a legitimate 

_____________________

28 550 F.3d 382 (5th Cir. 2008).

29 Id. at 398.

30 Id. at 397 (quoting 21 C.F.R. § 1306.04(a)).

31 Id. at 397 n.26 (quoting Gonzales, 546 U.S. at 257).

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medical purpose or is outside the usual course of professional practice.”32 In

the years following Armstrong, this Court has continually affirmed the use 

§ 1306.04(a)’s definition of authorization to define the term under 

§ 841(a)(1).

33

Most notably, Armstrong rejected the definition of authorization that 

Lamartiniere now seeks to revive, namely that a prescription is unauthorized 

only if it lacks a legitimate medical purpose. In rejecting that argument, 

Armstrong held that such a limited interpretation of authorization was 

inconsistent with “the relevant statutory language, regulation, [United States 

v.] Moore, and Fifth Circuit precedent.”34 In particular, we highlighted that 

the jury instructions in Moore “did not include the requirement that the 

_____________________

32 Id. at 397.

33 See, e.g., United States v. Bennett, 874 F.3d 236, 245 (5th Cir. 2017) (recognizing 

that “relevant regulations provide that a controlled substance can be dispensed by a 

prescription issued for a legitimate medical purpose by an individual practitioner acting in 

the usual course of his professional practice” (internal quotation marks and citation 

omitted)); United States v. Evans, 892 F.3d 692, 703 (5th Cir. 2018) (requiring the 

Government to prove that the “charged prescriptions had no legitimate medical purpose 

or were written outside the course of [defendant’s] professional practice” to satisfy 

§ 841(a)(1)’s authorization element); United States v. Pierre, 88 F.4th 574, 580 n.7, 582 n.8 

(5th Cir. 2023) (identifying § 1306.04(a) as the “relevant regulation” defining authorized 

prescriptions); United States v. Little, Nos. 21-11225 & 21-11228, 2023 WL 7294199, at *9 

(5th Cir. Nov. 3, 2023) (per curiam) (unpublished) (“[A] practitioner is unauthorized to 

dispense a controlled substance if the prescription either lacks a legitimate purpose or is 

outside the usual course of professional practice.” (alteration in original) (internal 

quotation marks and citation omitted)).

34 Armstrong, 550 F.3d at 396 & n.25; see also United States v. Brown, 553 F.3d 768, 

791 n.71 (5th Cir. 2008) (adopting the reasoning of a prior unpublished opinion in which 

this Court rejected the argument that the Government was “attempt[ing] to impermissibly 

bootstrap a violation of 21 C.F.R. § 1306.04(a) . . . into a criminal offense [under § 841(a)]” 

on the grounds “that the regulation was an interpretive regulation, not a civil regulation; 

the indictment only charged a violation of § 841(a), and physicians can be prosecuted for 

prescribing drugs outside of professional practice” (quoting United States v. Ogle, 201 F. 

App’x 979, 980 (5th Cir. 2006) (per curiam) (unpublished))).

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Government prove beyond a reasonable doubt that the physician prescribed 

the controlled substance other than for a legitimate medical purpose.”35 

Indeed, contrary to Lamartiniere’s treatment of the phrase usual course of 

professional practice as surplusage, the Supreme Court in Moore held that the 

“scheme of the statute [§ 841], viewed against the background of the 

legislative history, reveals an intent to limit a registered physician’s 

dispensing authority to the course of his ‘professional practice.’”36 

Accordingly, both Moore and Armstrong are directly at odds with 

Lamartiniere’s proposed definition of authorization.

37

Under this Court’s rule of orderliness, “one panel of our court may 

not overturn another panel’s decision, absent an intervening change in the 

law, such as by a statutory amendment, or the Supreme Court, or our en banc 

court.”38 “[F]or a Supreme Court decision to change our Circuit’s law, it 

must be more than merely illuminating with respect to the case before [the 

court] and must unequivocally overrule prior precedent.”39 Similarly, an “en 

banc decision cannot overturn a binding published panel decision unless it 

does so clearly.”40 

_____________________

35 Armstrong, 550 F.3d at 399.

36 Moore, 423 U.S. at 140. 

37 See id. at 124 (holding “that registered physicians can be prosecuted under § 841 

when their activities fall outside the usual course of professional practice”); Armstrong, 550 

F.3d at 397 (“In other words, knowingly distributing prescriptions outside the course of 

professional practice is a sufficient condition to convict a defendant under the criminal 

statutes relating to controlled substances.”).

38 Jacobs v. Nat’l Drug Intel. Ctr., 548 F.3d 375, 378 (5th Cir. 2008).

39 Tech. Automation Servs. Corp. v. Liberty Surplus Ins. Corp., 673 F.3d 399, 405 (5th 

Cir. 2012) (second alteration in original) (internal quotation marks and citation omitted).

40 United States v. Vega, 960 F.3d 669, 675 (5th Cir. 2020).

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Seeking to avoid the conclusion that Armstrong controls under the rule 

of orderliness, Lamartiniere initially attempts to distinguish the jury 

instructions given in this case from Armstrong. He alternatively argues that a 

combination of the Supreme Court’s decision in Ruan, the major questions 

doctrine, and this Court’s en banc decision in Cargill v. Garland41 constitute 

an intervening change in the law that requires us to depart from Armstrong. 

Neither argument is persuasive.

First, the relevant jury instructions in this case are indistinguishable 

from Armstrong. Lamartiniere seeks to distinguish them on the grounds that 

in Armstrong, we acknowledged that “the district court essentially defined 

conduct ‘in the usual course of professional practice’ as conduct that is 

intended ‘for a legitimate medical purpose.’”42 The basis for this statement 

in Armstrong was the district court’s instruction regarding good faith, which 

stated that prescriptions were lawful if they were prescribed by a physician in 

good faith, and that “[g]ood faith in this context means an honest effort to 

prescribe for a patient’s condition in accordance with the standards of medical 

practice generally recognized or accepted in this country.”43 According to 

Lamartiniere, the phrases “legitimate medical purpose” and “usual course 

of professional practice” mean the same thing; consequently, Armstrong’s 

instructions were a correct statement of law. He submits that the instructions 

given in this case are distinguishable because they emphasize that the phrases 

mean different things and erroneously provide that either prong is sufficient 

for a conviction. 

_____________________

41 57 F.4th 447 (5th Cir. 2023) (en banc), cert. granted, 144 S. Ct. 374 (2023).

42 Armstrong, 550 F.3d at 398.

43 Id. 

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The problem with Lamartiniere’s argument is that the district court’s 

good-faith instruction in this case is almost identical to the good-faith 

instruction in Armstrong.

44

 Thus, to the extent the good-faith instruction in 

Armstrong treated the two phrases as interchangeable, so too did the goodfaith instruction here. Moreover, like the instructions here, the instructions 

in Armstrong elsewhere made clear that the Government satisfies the 

authorization element if it proves “either that the physician prescribed or 

dispensed the drug other than for a legitimate medical purpose or that the 

physician dispensed the drug not in the usual course of medical practice.”45

Thus, Lamartiniere’s effort to distinguish Armstrong is unavailing.

In the alternative, Lamartiniere asserts that Armstrong has been 

overruled by an intervening change in the law. But despite Lamartiniere’s 

arguments to the contrary, neither Ruan, Cargill, nor the major questions 

doctrine overruled Armstrong or the Supreme Court cases upon which

Armstrong relied. 

In Ruan, the Supreme Court reviewed two cases from the Tenth and 

Eleventh Circuits consolidated on appeal. The Supreme Court addressed 

“the state of mind that the Government must prove to convict . . . doctors of 

violating [§ 841(a)(1)].”46 In resolving this issue, the Court held “that the 

statute’s ‘knowingly or intentionally’ mens rea applies to authorization.”47 

_____________________

44 In Armstrong, the district court instructed the jury that “Good faith in this context 

means an honest effort to prescribe for a patient’s condition in accordance with the standards of 

medical practice generally recognized or accepted in this country.” Id. Here, the district 

court instructed the jury that “‘Good faith’ in this context means an honest effort to 

prescribe for a patient’s condition in accordance with the standards of medical practice 

generally recognized or accepted in the United States.”

45 Id.

46 Ruan, 597 U.S. at 454.

47 Id. 

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TheCourt further explained that “[a]fter a defendant produces evidence that 

he or she was authorized to dispense controlled substances, the Government 

must prove beyond a reasonable doubt that the defendant knew that he or she 

was acting in an unauthorized manner, or intended to do so.”48 After setting 

forth the required mens rea, the Court remanded the cases to their respective 

circuits for determinations in the first instance of whether the jury 

instructions at issue were consistent with the Court’s decision.49

As an initial matter, Ruan addressed the mens rea requirement for a 

conviction under § 841(a)(1), not the separate authorization element. To the 

extent Ruan mentioned the definition of an authorized prescription, it did so 

with reference to the regulatory definition Lamartiniere challenges here.50 It 

is therefore unsurprising that on remand, neither the Tenth nor Eleventh 

Circuit questioned that the regulatory definition of authorization governed

_____________________

48 Id. 

49 Id. at 467.

50 See id. at 454 (noting that “as provided by regulation, a prescription is only 

authorized when a doctor issues it ‘for a legitimate medical purpose . . . acting in the usual 

course of his professional practice’” (alteration in original) (quoting 21 C.F.R. 

§ 1306.04(a))); see also id. at 467 (citing 21 C.F.R. § 1306.04(a) as “the regulation defining 

the scope of a doctor’s prescribing authority”); id. at 455 (“We assume, as did the courts 

below and the parties here, that a prescription is ‘authorized’ and therefore lawful if it 

satisfies [§ 1306.04(a)].”).

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the third element of the offense.

51

 And since Ruan, both this Court52 and our 

sister circuits53 have rejected similar challenges to § 1306.04(a)’s definition 

of authorization. Simply put, Ruan did not even question, let alone 

_____________________

51 See Kahn II, 58 F.4th at 1319 (“Here, the government is correct that the Supreme 

Court has acknowledged that ‘the scope of a doctor’s prescribing authority’ remains 

tethered ‘to objective criteria such as legitimate medical purpose and usual course of 

professional practice’” (quoting Ruan, 597 U.S. at 467)); United States v. Ruan, 56 F.4th 

1291, 1296 (11th Cir. 2023) (Ruan II) (per curiam) (“The relevant drugs in this case are 

only ‘authorized’ to be dispensed pursuant to a prescription, and an effective prescription 

must be made for a ‘legitimate medical purpose by an individual practitioner acting in the 

usual course of his professional practice.’” (quoting 21 C.F.R. § 1306.04(a))), cert. denied, 

144 S. Ct. 377 (2023).

52 See Pierre, 88 F.4th at 582 n.8 (rejecting the defendant’s argument that “it was 

error to ask the jury whether he agreed to unlawfully dispense drugs ‘outside the scope of 

professional practice or without a legitimate medical purpose,’” because the instruction 

“correctly conveyed what the regulation provides”); United States v. Capistrano, 74 F.4th 

756, 771 n.51 (5th Cir. 2023) (same), cert. denied, 144 S. Ct. 516 (2023); see also Little, 2023 

WL 7294199, at *9–10 (rejecting the defendant’s preserved challenge to the sufficiency of 

the evidence about whether the charged prescriptions were outside the usual course of 

professional practice or lacked a legitimate medical purpose). Lamartiniere argues that 

Pierre and Capistrano are “not binding on this Court” because the Court’s authorization 

discussion was dicta and both cases only reviewed the jury instructions under our plainerror standard of review. Although both Pierre and Capistrano were decided under a 

standard of review different from the one in this case, the relevant statements were not 

dicta because they were essential to the holdings given that defendants in both cases were 

challenging the definition of authorization as articulated in the jury instructions. See Int’l 

Truck & Engine Corp. v. Bray, 372 F.3d 717, 721 (5th Cir. 2004) (“A statement is not dictum 

if it is necessary to the result or constitutes an explication of the governing rules of law.”). 

53 See, e.g., United States v. Heaton, 59 F.4th 1226, 1238–40 & 1241 n.17 (11th Cir. 

2023) (rejecting a defendant’s challenge to jury charges reflecting the regulatory language 

that a prescription is unauthorized if it is issued “outside the usual course of professional 

practice” or “for no legitimate medical purpose”); United States v. Bauer, 82 F.4th 522, 

528 (6th Cir. 2023) (“Registered doctors are among those ‘authorized’ to prescribe 

controlled substances but only when the doctor ‘issued [the prescription] for a legitimate 

medical purpose . . . acting in the usual course of his professional practice.’” (alterations in 

original) (quoting 21 C.F.R. § 1306.04(a))).

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“unequivocally overrule” Armstrong’s use of the regulatory definition of 

authorization.

Lamartiniere next contends that because Congress did not authorize 

the Attorney General to define the scope of authorization, Armstrong’s 

reliance on a regulation (as opposed to the underlying statute) runs afoul of 

the major questions doctrine and conflicts with Cargill’s holding that agency 

interpretations of criminal statutes are not entitled to deference. But, as 

recognized by Armstrong, the Supreme Court in Gonzales made clear that 

§ 1306.04(a)’s definition of authorization “does little more than restate the 

terms of the [CSA] itself.”54 Lamartiniere does not suggest that Gonzales has 

been overruled, and to the contrary, relies on the case throughout his briefing. 

Lamartiniere’s arguments are therefore foreclosed by the Supreme Court’s 

holding in Gonzales.

Under the rule of orderliness, we remain bound to follow established 

precedent that a prescription is unauthorized under § 841(a)(1) if it lacks a 

legitimate medical purpose or was issued outside the usual course of 

professional practice. Because the district court’s instructions defining 

authorization are consistent with this precedent, Lamartiniere’s challenge to 

these instructions lacks merit.

C.

Lamartiniere next renews his preserved challenge to the district 

court’s state-licensing instruction. The challenged instruction, which is 

based on 21 C.F.R. § 1306.03(a),

55 informed the jury that in order to prescribe 

_____________________

54 Armstrong, 550 F.3d at 397 n.26 (quoting Gonzales, 546 U.S. at 257).

55 “A prescription for a controlled substance may be issued only by an individual 

practitioner who is: (1) Authorized to prescribe controlled substances by the jurisdiction in 

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controlled substances, a medical practitioner must be “[1] authorized . . . by 

the jurisdiction in which he is licensed to practice his profession” and “[2] 

in possession of a valid registration from the U.S. Drug Enforcement 

Administration.” 

Lamartiniere asserts that the challenged instruction permitted the jury 

to find him strictly liable for prescriptions he wrote after his license to 

prescribe controlled substances was suspended by the Medical Board based 

solely on a violation of § 1306.03(a). Specifically, Lamartiniere maintains 

that the instruction allowed the jury to find that he lacked authorization to 

issue the charged prescriptions without deciding whether they served a 

legitimate medical purpose and despite the fact that he had a valid DEA 

license to distribute controlled substances. 

Taken together, the district court’s jury instructions cannot be read as 

giving jurors license to conclude that the prescriptions charged in Counts 1 

through 7 were unauthorized solely because they were written after 

Lamartiniere’s state medical license was partially suspended.

56

 In addition 

to the state-licensing instruction, the court instructed the jury that a 

“prescription is authorized if it is issued for a legitimate medical purpose by 

an individual practitioner acting in the usual course of his professional 

practice.” It further instructed jurors that in deciding whether Lamartiniere 

issued prescriptions for a legitimate medical purpose in the usual course of 

professional practice, they “may consider all of the Defendant’s actions and 

_____________________

which he is licensed to practice his profession and (2) Either registered or exempted from 

registration pursuant to §§ 1301.22(c) and 1301.23 of this chapter.” 21 C.F.R. § 1306.03(a).

56 See United States v. Phea, 755 F.3d 255, 266 (5th Cir. 2014) (“[S]pecific jury 

instructions are to be judged not in isolation, but must be considered in the context of the 

instructions as a whole and the trial record.” (internal quotation marks and citation 

omitted)).

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the circumstances surrounding them.” Finally, the court cautioned jurors 

that even if they found that Lamartiniere “violated applicable civil or 

administrative rules, regulations, or contract terms, that alone would not be 

a criminal violation,” but that such violations “may be relevant to determine 

whether [Lamartiniere] acted . . . knowingly, intentionally, and without 

authorization.” 

These instructions, read as a whole, did not impermissibly require the 

jury to convict Lamartiniere simply for prescribing controlled substances 

with a suspended state license. Instead, the instructions permitted jurors to 

consider the fact that Lamartiniere issued prescriptions with a suspended 

state license in violation of § 1306.03(a) as evidence that those prescriptions 

were not issued for a legitimate medical purpose or in the usual course of 

professional practice. This Court has upheld the use of regulations for this 

purpose in both United States v. Bennett57 and United States v. Brown.

58

 

Indeed, as in Bennett, the fact that Lamartiniere wrote these prescriptions 

after his state license was suspended was relevant evidence for the jury to 

consider in determining whether the prescriptions were outside the scope of 

his professional practice.59 Furthermore, the fact that Lamartiniere 

_____________________

57 In Bennett, we rejected the argument that a § 841(a)(1) conviction was based on 

the defendant’s “failure to adhere to medical regulations, rather than the elements of the 

crimes charged.” 874 F.3d at 243. In particular, we held that the Government’s reference 

to relevant regulations was appropriate given that the regulations “helped clarify the scope 

and contour of ‘outside the course of professional practice’—the very purpose for which 

the trial was being conducted—and thus did not work a due process violation against [the 

defendant].” Id. at 245.

58 In Brown, we similarly rejected the argument that the “prosecution secured a 

criminal conviction by proving that the [defendant] pharmacists violated the [Texas 

Pharmacy Laws and Regulations]” by acknowledging the “commonplace use of duly issued 

regulations in clarifying the scope and contour of criminal laws.” 553 F.3d at 791.

59 See Bennett, 874 F.3d at 245 (holding that reference to the relevant regulations 

was appropriate because the regulations “helped clarify the scope and contour of ‘outside 

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maintained his DEA registration at the time is of no moment. The Supreme 

Court has made clear that a physician is not exempt from prosecution under 

§ 841(a)(1) simply by having a DEA registration.60 Accordingly, the district 

court did not err by giving the state-licensing instruction.

D.

Turning to Lamartiniere’s challenges to the district court’s mens rea 

instructions, Lamartiniere asserts that both the court’s articulation of the 

mens rea element and its instructions defining that element run afoul of the 

Supreme Court’s decision in Ruan. 

1.

In stating the fourth element of a § 841(a)(1) offense—the mens rea 

requirement—the district court instructed the jury that the Government was 

required to prove “that the Defendant knew he was acting in an unauthorized 

manner when he dispensed the controlled substance or intended to act in an 

unauthorized manner.” The court issued this instruction instead of 

Lamartiniere’s proposed instruction that the Government was required to 

prove “the defendant knew or intended that his conduct was unauthorized.” 

On appeal, Lamartiniere argues that there is an important distinction 

between knowingly acting in an unauthorized manner and knowing that a 

prescription is unauthorized. Because Lamartiniere did not challenge the 

_____________________

the course of professional practice’”); cf. Moore, 423 U.S. at 140–41 (“In the case of a 

physician . . . [the CSA] contemplates that he is authorized by the State to practice medicine 

and to dispense drugs in connection with his professional practice.”).

60 See Moore, 423 U.S. at 131–32 (“We think the statutory language cannot fairly be 

read to support the view that all activities of registered physicians are exempted from the 

reach of § 841 simply because of their status.”).

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district court’s articulation of the mens rea element below,61 and instead 

agreed that the instruction’s language was “directly from Ruan,” we review 

his challenge for plain error. 

As Lamartiniere recognized below, the district court’s statement of 

the mens rea element comes from Ruan. Specifically, Ruan held that “the 

Government must prove beyond a reasonable doubt that the defendant 

knowingly or intentionally acted in an unauthorized manner.”62 Because 

there is no meaningful difference between this language in Ruan and the 

district court’s articulation of the mens rea element, the instruction was not 

erroneous, plain or otherwise.

2.

Lamartiniere further contends that even if the district court’s 

instruction was correct, the way the court went on to define the mens rea 

element was inconsistent with Ruan. In particular, he challenges the district 

court’s instruction that “knowingly issuing a prescription outside the course 

of professional practice is a sufficient condition to convict a medical 

practitioner of unlawful dispensation of a controlled substance”63 and 

“[l]ikewise, knowingly issuing a prescription without a legitimate medical 

_____________________

61 See United States v. Rosenthal, 805 F.3d 523, 530 (5th Cir. 2015) (recognizing that 

the defendant did not preserve his challenges to the jury instructions simply by “proffering 

jury instructions that were refused”).

62 Ruan, 597 U.S. at 457.

63 To the extent Lamartiniere argues that the mens rea element can only be satisfied 

if the Government shows he knowingly issued prescriptions without a legitimate medical 

purpose, that argument is foreclosed by Ruan which makes clear the Government can 

compare a defendant’s subjective beliefs against objective criteria, including the usual 

course of professional practice. Id. at 467.

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purpose is a sufficient condition to convict a medical practitioner of unlawful 

dispensation of a controlled substance.” 

According to Lamartiniere, in order to establish the mens rea element, 

a “knowing violation of the standard articulated in CFR § 1306.04(a) is 

circumstantial evidence that a defendant knew his conduct was outside the 

scope of his CSA authorization,” but pursuant to Ruan, it is “not 

dispositive.” Because Lamartiniere preserved his challenge to the definition 

of the mens rea requirement, our review is de novo. 

In Ruan, the Court overruled decisions from the Tenth and Eleventh 

Circuits that required the Government to prove that a physician “either: 

(1) subjectively knew a prescription was issued not for a legitimate medical 

purpose; or (2) issued a prescription that was objectively not in the usual 

course of professional practice.”64 Specifically, the Court rejected the 

assertion that the Government could establish a defendant’s mens rea by 

proving the defendant did not make an “objectively reasonable attempt to 

ascertain and act within the bounds of professional medicine.”65 In so 

holding, the Court provided the following guidance on establishing mens rea:

The Government, of course, can prove knowledge of a lack of 

authorization through circumstantial evidence. And the regulation defining the scope of a doctor’s prescribing authority 

does so by reference to objective criteria such as “legitimate 

medical purpose” and “usual course” of “professional practice.” As we have said before, “the more unreasonable” a defendant’s “asserted beliefs or misunderstandings are,” especially as measured against objective criteria, “the more likely 

_____________________

64 Id. at 456–57 (quoting United States v. Kahn, 989 F.3d 806, 825 (10th Cir. 2021), 

vacated and remanded sub nom. Ruan, 597 U.S. 450); id. at 456 (stating the Eleventh Circuit 

jury instructions).

65 Id. at 465.

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the jury . . . will find that the Government has carried its burden 

of proving knowledge.” But the Government must still carry 

this burden. And for purposes of a criminal conviction under 

§ 841, this requires proving that a defendant knew or intended 

that his or her conduct was unauthorized.66

On remand, the Eleventh Circuit vacated the defendants’ convictions 

under § 841(a)(1) after concluding that “the district court did not adequately 

instruct the jury that the defendants must have ‘knowingly or intentionally’ 

prescribed outside the usual course of their professional practices.”67 In 

subsequent cases, the Eleventh Circuit has concluded there is “no Ruan 

error” in mens rea instructions that require the Government to prove the 

defendant subjectively knew a controlled substance prescription lacked a 

legitimate medical purpose or was outside the usual course of professional 

practice.

68

 

In the consolidated case remanded to the Tenth Circuit—Kahn II—

the court there concluded that the district court’s mens rea instruction was 

erroneous under Ruan for two reasons.69 “First, Ruan expressly disallows 

conviction under § 841(a)(1) for behavior that is only objectively 

_____________________

66 Id. at 467 (alteration in original) (internal citations omitted).

67 Ruan II, 56 F.4th at 1298.

68 See Heaton, 59 F.4th at 1241–42 & n.16 (rejecting the defendant’s challenge to 

the jury instruction as to the mens rea element because the “jury was properly instructed 

that whether [defendant] prescribed controlled substances for a legitimate medical purpose 

‘depend[ed] on his subjective belief,’” and although the jury was instructed that the usual 

course of professional practice inquiry was objective, the error was harmless because “the 

government presented overwhelming evidence that [defendant] subjectively knew his 

conduct fell outside the usual course of his professional practice”); see also United States v. 

Duldulao, 87 F.4th 1239, 1258 (11th Cir. 2023) (summarizing circuit precedent on 

§ 841(a)(1)’s mens rea jury instructions).

69 Kahn II, 58 F.4th at 1315–18.

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unauthorized.”70 Thus, the court’s instruction treating the usual course of 

professional practice inquiry as wholly objective was inconsistent with

Ruan.

71

 And second, “Ruan treats the two criteria in § 1306.04(a) not as 

distinct bases to support a conviction, but as . . . circumstantial evidence of a 

defendant’s subjective intent to act in an unauthorized manner.”72 

Accordingly, the Tenth Circuit held that “because [the instructions] allowed 

the jury to convict [defendant] after concluding either that [defendant] 

subjectively knew a prescription was issued not for a legitimate medical 

purpose, or that he issued a prescription that was objectively not in the usual 

course of professional practice, . . . [b]oth approaches run counter to Ruan.”73 

The court underscored that “the government’s showing of objective criteria, 

without proving that a defendant actually intended or knew he or she was 

acting in an unauthorized way, is not enough to convict.”74

Lamartiniere emphasizes that Kahn II supports his challenge to the 

mens rea jury instructions here because it casts doubt on whether a jury could 

convict a defendant solely for knowingly violating the criteria in § 1306.04(a). 

But as Lamartiniere acknowledges, we are not bound by Kahn II, and both 

the Eleventh and Sixth Circuits75 have affirmed—consistent with the 

_____________________

70 Id. at 1316.

71 Id. 

72 Id.; see also id. at 1319 (“A physician’s serial disregard of accepted medical norms 

constitutes relevant evidence of his mental state . . . .”).

73 Id. at 1316.

74 Id. at 1315.

75 See United States v. Anderson, 67 F.4th 755, 766, 769–70 (6th Cir. 2023) (per 

curiam) (upholding defendant’s § 841(a)(1) convictions after finding that a jury could 

conclude that the defendant “knowingly prescribed controlled substances without a 

legitimate medical purpose and outside the usual course of professional practice”), cert. 

denied, 144 S. Ct. 552 (2024).

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instructions given in this case—that a defendant knowingly acts in an 

unauthorized manner when he or she prescribes controlled substances 

knowing they are without a legitimate medical purpose or knowing they are 

outside the usual course of professional practice. Moreover, this Court, in a 

plain-error review case post-Ruan, held that “a defendant can be convicted 

either for knowing prescriptions were issued for an illegitimate purpose or 

knowing they were dispensed outside the usual course of professional 

practice.”76 

We find no error in the district court’s instructions on the mens rea 

element. Consistent with Ruan, the court’s instructions made clear from the 

outset that in order to convict Lamartiniere the jury had to find the 

Government proved beyond a reasonable doubt that he knew he was acting in 

an unauthorized manner when he dispensed the controlled substances.77 

Maintaining the focus on Lamartiniere’s subjective intent, the district court 

further instructed jurors that “knowingly issuing a prescription outside the 

course of professional practice is a sufficient condition to convict a medical 

practitioner” and that “knowingly issuing a prescription without a legitimate 

medical purpose” is also “a sufficient condition to convict a medical 

practitioner.” Such an instruction is consistent with Ruan’s statement that 

jurors are free to consider the reasonableness of a defendant’s beliefs “as 

measured against objective criteria,” such as “legitimate medical purpose” 

and “usual course” of “professional practice.”78 And because the 

instructions required jurors to focus on Lamartiniere’s subjective intent

_____________________

76 Capistrano, 74 F.4th at 771 n.51.

77 See Ruan, 597 U.S. at 467 (“And for purposes of a criminal conviction under 

§ 841, this requires proving that a defendant knew or intended that his or her conduct was 

unauthorized.”).

78 Id.

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under both prongs of § 1306.04(a), they are readily distinguishable from the 

instructions reviewed in Ruan and rejected by our sister circuits on remand.79

Moreover, the instructions as a whole conveyed to jurors that to the 

extent they found Lamartiniere knowingly prescribed controlled substances 

without a legitimate medical purpose or outside the usual course of 

professional conduct, they should treat such findings as probative 

circumstantial evidence that he knew his actions were unauthorized. For 

example, jurors were instructed that in determining whether Lamartiniere 

issued prescriptions “for a legitimate medical purpose in the usual course of 

professional practice,” they “may consider all of [his] actions and the 

circumstances surrounding them.” And critically, jurors were also 

instructed that “[k]nowingly keeping insufficient medical records alone does 

not establish the Defendant’s guilt” and nor do any actions he took “outside 

the standard of care generally required of physicians.” But that they “may 

consider . . . evidence of such facts when determining whether the Defendant 

. . . . intended to act in an unauthorized manner.” 

The above instructions properly focused on Lamartiniere’s subjective 

intent, while also recognizing that under Ruan, the jury may consider the 

reasonableness of Lamartiniere’s beliefs as measured against objective 

_____________________

79 Id. at 456–57; see also Kahn II, 58 F.4th at 1316 (noting that the district court’s 

instructions treated the second prong of § 1306.04(a) “as wholly objective, considering 

whether a defendant-practitioner objectively acted within that scope [of professional 

practice], regardless of whether he believed he was doing so” (internal quotation marks and 

citation omitted)); Duldulao, 87 F.4th at 1251 (“Before Ruan[], our precedent required the 

government to show that a defendant subjectively knew he was acting not for a legitimate 

medical purpose under § 841” but “when it came to whether a physician acted outside the 

usual course of professional practice, the appropriate focus [was] not on the subjective 

intent of the doctor but rather on whether, from an objective standpoint, the controlled 

substances were dispensed in the usual course of professional practice.” (internal quotation 

marks and citation omitted)).

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criteria. Accordingly, viewing the instructions as a whole, we find no error 

under Ruan.

3. 

Third, and finally, Lamartiniere argues that even if the Government 

could satisfy § 841(a)(1)’s mens rea element by showing he wrote 

prescriptions knowing they were outside the usual course of professional 

practice, the district court’s good-faith instruction did not require the 

Government to prove as much. The district court instructed jurors that a 

controlled substance is authorized if it is “prescribed by [a physician] in good 

faith,” which means a physician’s “honest effort to prescribe for a patient’s

condition in accordance with standards of medical practice generally 

recognized or accepted in the United States.” 

Lamartiniere objects to the instruction on the grounds that it allowed 

the jury to convict him based on an objective standard, regardless of whether 

the jury found that he believed his prescriptions were in accordance with 

standards of medical practice. He also asserts that the court’s good-faith 

definition was “nearly identical” to the good-faith standard rejected in Ruan. 

Because Lamartiniere raised the objections to the good-faith instruction he 

presses on appeal for the first time in his motion for a new trial, our review is 

limited to plain error.80

In requiring the Government to prove that a defendant subjectively 

knew that his prescriptions were unauthorized, the Court in Ruan rejected 

the “substitute mens rea standard” offered by the Government, which would 

_____________________

80 See United States v. Green, 47 F.4th 279, 289 (5th Cir. 2022) (reviewing a 

defendant’s challenge to jury instructions under plain error because the defendant “did not 

object to the jury instructions in the district court until his Rule 33 motion for a new trial 

and thus did not preserve the issue for appeal”), cert. denied, 143 S. Ct. 747 (2023).

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have read § 841(a)(1) “as implicitly containing an ‘objectively reasonable 

good-faith effort’ or ‘objective honest-effort standard.’”81 The Court 

refused to adopt the Government’s standard for two reasons: (1) § 841 does 

not include words such as “good faith,” “objectively,” “reasonable,” or 

“honest effort” and (2) the proposed standard “would turn a defendant’s 

criminal liability on the mental state of a hypothetical ‘reasonable’ doctor, 

not on the mental state of the defendant himself or herself.”82 

In both jury instructions reviewed in Ruan, the district courtsincluded 

good-faith instructions. In the appeal from the Eleventh Circuit, the district 

court instructed “the jury that a doctor acts lawfully when he prescribes ‘in 

good faith as part of his medical treatment of a patient in accordance with the 

standard of medical practice generally recognized and accepted in the United 

States.’”83 And in the appeal from the Tenth Circuit, the district court 

“instructed the jury that it should not convict if it found that [the defendant] 

acted in ‘good faith,’ defined as ‘an attempt to act in accordance with what a 

reasonable physician should believe to be proper medical practice.’”84 

On remand, the Eleventh Circuit explained that the phrase “good 

faith,” absent qualification, “encompasses both subjective and objective 

good faith,” and that in Ruan, the Supreme Court “explicitly held [that] only 

the subjective version is appropriate.”85 The Eleventh Circuit ultimately 

remanded the case to the district court after concluding that “the remaining 

jury instructions did not help convey that a subjective analysis was 

_____________________

81 Ruan, 597 U.S. at 465.

82 Id. 

83Id. at 455.

84 Id. at 456.

85 Ruan II, 56 F.4th at 1297.

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required.”86 On remand in the Tenth Circuit, the court held that the district 

court’s good-faith instruction was “problematic” under Ruan by relying “on 

terms like ‘reasonable physician’ and ‘should believe,’” which “impose an 

objective standard and are exactly the type of language that the Supreme 

Court stated is impermissible.”87

Here, the district court’s good-faith instruction is distinguishable in 

three important ways from the instructions at issue in Ruan. First, unlike the 

Government’s proposed mens rea standard rejected by the Court, the district 

court’s good-faith instruction did not include phrases such as “objectively 

reasonable good-faith effort,” or “objective honest-effort standard.”88 

Second, unlike the instruction from the Tenth Circuit appeal, the instruction 

here did not use the phrase, “what a reasonable physician should believe,” 

which denotes an objective nature to the good-faith inquiry.

Finally, unlike the instruction from the Eleventh Circuit appeal, the 

instruction here defined good faith in terms of the defendant’s subjective 

belief by using the phrase “honest effort,” and any objective aspect of the 

instruction was properly qualified in the context of the instructions as a 

whole.89 Specifically, the district court’s charge that “acting outside the 

standard of care generally required of physicians throughout the United 

States alone does not establish the Defendant’s guilt,” makes clear that any 

objective aspect of the good-faith instruction is not a basis, by itself, to convict 

a defendant. Furthermore, the court’s instruction that the Government must 

_____________________

86 Id.

87 Kahn II, 58 F.4th at 1317.

88 Ruan, 597 U.S. at 465.

89 Cf. Ruan II, 56 F.4th at 1298 (“[T]he summary of the charge also did not help to 

convey the required mens rea.”).

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prove the defendant’s knowledge or intent to act in an unauthorized manner 

squarely frames the mens rea inquiry as a subjective one. Because the goodfaith instruction, read in context of the full jury charge, properly 

communicated to the jury the appropriate mens rea standard, the instruction 

was not plainly erroneous under Ruan.

90

E.

Lamartiniere’s final claim of jury instruction error is that the district 

court improperly gave a deliberate ignorance instruction.

91

 Because 

Lamartiniere preserved this challenge, we review the district court’s 

instruction under an abuse of discretion standard.92 

This Court has “often cautioned against the use of the deliberate 

ignorance instruction.”93 We have repeatedly emphasized that a deliberate 

ignorance instruction should not be given as “a backup or supplement in a 

case that hinges on a defendant’s actual knowledge,” and that the 

“instruction is appropriate only in the circumstances where a defendant 

‘claims a lack of guilty knowledge and the proof at trial supports an inference 

_____________________

90 See United States v. Mencia, No. 18-13967, 2022 WL 17336503, at *14 (11th Cir. 

Nov. 30, 2022) (per curiam) (“Consistent with the Court’s holding in Ruan, the good faith 

instruction in this case required the jury to consider [defendant]’s subjective intent in 

determining whether he had a ‘good faith reasonable belief’ that the distribution of 

controlled substances was unauthorized.”).

91 The district court gave the following instruction on deliberate ignorance: “[y]ou 

may find that Defendant had knowledge of a fact if you find that the Defendant deliberately 

closed his eyes to what would otherwise have been obvious to him.” The court further 

instructed that “[w]hile knowledge on the part of the Defendant cannot be established 

merely by demonstrating that the Defendant was negligent, careless, or foolish, knowledge 

can be inferred if the Defendant deliberately blinded himself to the existence of a fact.”

92 United States v. Lee, 966 F.3d 310, 324 (5th Cir. 2020).

93 United States v. Mendoza-Medina, 346 F.3d 121, 132 (5th Cir. 2003).

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of deliberate indifference.’”94 To support that inference, the evidence at trial 

must show: “(1) the defendant was subjectively aware of a high probability of 

the existence of the illegal conduct; and (2) the defendant purposely 

contrived to avoid learning of the illegal conduct.”95

The district court rejected Lamartiniere’s challenge to the inclusion 

of the deliberate ignorance instruction after concluding that the “evidence at 

trial plainly showed that Defendant ignored multiple obvious signs that his 

patients were abusing or illegally diverting the prescriptions he wrote for 

them.” The court further explained that “[i]n particular, the undercover 

recordings of Defendant’s interactions with law enforcement agents posing 

as patients captured numerous statements confirming that Defendant was 

acutely aware of the illegality of his conduct.” Although Lamartiniere

disagrees with the district court’s characterization of the evidence, he 

nevertheless contends that the court’s reasoning is inconsistent with our 

precedent that the deliberate ignorance instruction is inappropriate in cases 

premised on actual knowledge. Moreover, he maintains that the evidence at 

trial showed he directly confronted facts about illegal activity. 

The thrust of the Government’s case was that Lamartiniere knew he 

was prescribing controlled substances in an unauthorized manner to patients 

he knew were abusing or diverting the drugs. And although Lamartiniere 

disputes that he had the requisite knowledge, the evidence presented at trial 

was to the contrary. 

For example, the Government presented evidence that Lamartiniere 

wrote prescriptions after he knew the Medical Board partially suspended his 

_____________________

94 United States v. Kuhrt, 788 F.3d 403, 417 (5th Cir. 2015) (quoting United States 

v. Brooks, 681 F.3d 678, 701 (5th Cir. 2012)).

95 Id. (quoting Brooks, 681 F.3d at 701).

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license based on its finding that his “continued ability to prescribe controlled 

substances to his patients could constitute a risk of imminent patient harm.” 

It also presented evidence that Lamartiniere continued to prescribe Schedule 

II controlled substances to Dixon, Crawford, Henson, and Boudreaux, even 

though each of them testified they told Lamartiniere that they had illegally 

obtained drugs from their friends. Lamartiniere’s records also confirm that 

he knew Boudreaux and Henson both failed drug tests, and that Doiron was 

diagnosed by another physician as suffering from drug abuse. And 

Lamartiniere himself testified that he saw the needle tracks on Boudreaux’s 

arms, which he acknowledged was an indication of heroin use. 

Moreover, the video and audio recordings from the undercover agents 

include numerous statements by Lamartiniere confirming that he knew his 

prescriptions were unauthorized. For example, Lamartiniere told Dixon that 

prescribing Aleve or Tylenol for him would be “[a] little bit more legal.” He 

later admitted to Dixon that he was doing “neither” of the things necessary 

to ensure Dixon was not diverting his prescriptions, and that he could have 

his license taken away for “not doing that kind of stuff.” Lamartiniere also 

told Crawford that his symptoms were “not something . . . [that] any doctor 

should prescribe a . . . major narcotic [for], and that he had to be “careful” 

about prescribing him controlled substances “without an MRI or records,” 

because it “doesn’t look right.” As the Government reiterated in closing 

arguments, these recorded statements show that Lamartiniere “knew what 

he was doing was wrong” and “knew that these prescriptions were not 

legitimate.”

Given this evidence (and more) of actual knowledge, it was arguably 

an error for the district court to give the deliberate ignorance instruction.96 

_____________________

96 See id. (“The government constructed its case on the premise that Appellants 

were criminally liable based upon their actual knowledge of the fraud and their efforts to 

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But assuming arguendo that the district court did err, we have held that “any 

such error is harmless where substantial evidence of actual knowledge is 

presented at trial.”97 As discussed above, there was ample evidence at trial 

that Lamartiniere had actual knowledge that his prescriptions were 

unauthorized. Accordingly, any error by the district court’s inclusion of the 

deliberate ignorance instruction was harmless.

III.

Lamartiniere argues there was insufficient evidence to support his 

convictions. The standard of review for sufficiency-of-the-evidence 

challenges “depends on whether the claims were preserved.”98 “We review 

claims preserved through a Rule 29 motion de novo, but ‘with substantial 

deference to the jury verdict.’”99 Under this standard, we will uphold a 

jury’s verdict as long as “a reasonable trier of fact could conclude . . . the 

elements of the offense were established beyond a reasonable doubt.”100 

Additionally, in light of the deference given to a jury’s factfinding role, we 

“view[] the evidence in the light most favorable to the verdict and draw[] all 

reasonable inferences from the evidence to support the verdict.”101 In short, 

_____________________

further the fraud. Thus, it arguably was error for the district court to give the deliberate 

ignorance instruction.”).

97 United States v. St. Junius, 739 F.3d 193, 204–05 (5th Cir. 2013) (internal 

quotation marks and citation omitted).

98 United States v. Suarez, 879 F.3d 626, 630 (5th Cir. 2018).

99 Id. (quoting United States v. Delgado, 672 F.3d 320, 330–31 (5th Cir. 2012) (en 

banc)).

100 Id. (alteration in original) (citation omitted).

101 United States v. Jimenez-Elvirez, 862 F.3d 527, 533 (5th Cir. 2017) (citation 

omitted).

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“a defendant seeking reversal on the basis of insufficient evidence swims 

upstream.”102

However, if a sufficiency-of-the-evidence claim was not preserved, 

our review is only for plain error.103 Under plain-error review, the defendant 

“must show a clear or obvious legal error that affects his substantial rights 

and ‘seriously affect[s] the fairness, integrity, or public reputation of the 

judicial proceedings.’”104 We have held that relief “under this exacting 

standard” is appropriate “only if the Government’s evidence is obviously 

insufficient and the defendant shows a manifest miscarriage of justice.”105

Because Lamartiniere filed motions for acquittal challenging the 

sufficiency of the evidence against him, we review his preserved challenges 

de novo. But as to his claim raised for the first time on appeal—that the 

Government did not present sufficient evidence that the pre-license 

suspension prescriptions were outside the usual course of professional 

practice under United States v. Rosen106—our review is limited to plain 

error.107

_____________________

102 Capistrano, 74 F.4th at 766 (internal quotation marks and citation omitted).

103 Suarez, 879 F.3d at 630.

104 Id. (alteration in original) (quoting Puckett v. United States, 556 U.S. 129, 135 

(2009)).

105 Id. at 631 (internal quotation marks and citations omitted).

106 582 F.2d 1032 (5th Cir. 1978). 

107 Lamartiniere disputes that he “waive[d] or forfeit[ed] any of the sufficiency 

arguments presented in his opening brief,” asserting that his motions for acquittal argued 

that the evidence was insufficient to establish both that the prescriptions were unauthorized 

and that he knew they were unauthorized. But Lamartiniere’s Rule 29 motions focused on 

whether the prescriptions lacked a legitimate medical purpose and whether he had the 

requisite knowledge. To the extent Lamartiniere challenged that the prescriptions were 

outside the usual course of professional practice, he only argued that Dr. Kennedy’s 

testimony that his practices fell outside the rules set forth by the Louisiana Medical Board

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As reflected in the jury instructions, to convict Lamartiniere of the 

offenses charged under § 841(a)(1), the Government was required to prove 

that he: (1) dispensed a controlled substance; (2) dispensed the controlled 

substance knowingly or intentionally; (3) his dispensation of the controlled 

substance was not authorized; and (4) he knew he was acting in an 

unauthorized manner when he dispensed the controlled substance or 

intended to act in an unauthorized manner. Lamartiniere does not dispute 

that there was sufficient evidence as to the first two elements, thus focusing 

our attention on whether there was sufficient evidence that the prescriptions 

were unauthorized, and that he knew they were unauthorized. 

A.

Counts 1 through 7 of the superseding indictment charged 

Lamartiniere with issuing prescriptions for controlled substances on January 

5, 2016, after his state license was partially suspended. As to these 

convictions, Lamartiniere contends there was insufficient evidence to 

establish the charged prescriptions lacked a legitimate medical purpose and 

were therefore unauthorized. Lamartiniere concedes that there was 

sufficient evidence for the jury to conclude that he received the Medical 

Board’s suspension letter before issuing the prescriptions on January 5, 2016,

and that he knew the suspension prohibited him for issuing those 

_____________________

was insufficient to prove his conduct fell outside the usual course of professional practice 

in the United States generally. But his challenge on appeal is centered on whether there is 

sufficient evidence that the charged prescriptions were outside the usual course of 

professional practice under the factors identified by this Court in United States v. Rosen. 

Accordingly, Lamartiniere’s argument on appeal regarding the sufficiency of evidence 

about the usual course of professional practice prong is distinct from his sufficiency 

challenge in district court on this prong. “Where, as here, a defendant asserts specific 

grounds for a specific element of a specific count for a Rule 29 motion, he waives all others 

for that specific count,” and our review of those waived objections is limited to plain error. 

United States v. Herrera, 313 F.3d 882, 884–85 (5th Cir. 2002) (en banc) (per curiam).

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prescriptions under Louisiana’s medical regulations. But he contends that 

because he still maintained his DEA registration, the Government did not 

establish that the prescriptions were unauthorized because it provided no 

analysis of the relevant patient files, and Dr. Kennedy only provided a 

“conclusory” opinion that the prescriptions lacked a legitimate medical 

purpose. 

The district court correctly recognized that Lamartiniere’s 

sufficiency arguments “fall flat” under “the correct view of 

‘authorization.’” In other words, Lamartiniere’s argument that there was 

insufficient evidence that the prescriptions lacked a legitimate medical 

purpose ignores the fact that the Government can also establish a 

prescription is unauthorized if it is issued outside the usual course of 

professional practice. It is undisputed that the Government presented 

sufficient evidence for a reasonable jury to conclude that writing 

prescriptions for controlled substances with a suspended state license is 

outside the usual course of professional practice for a physician. And as 

Lamartiniere acknowledges, there was sufficient evidence based on his own 

testimony and Dr. Mouton’s testimony that he wrote the prescriptions on 

January 5, 2016, despite knowing that his state license was partially 

suspended and that such a suspension prohibited him from prescribing 

controlled substances. We therefore reject Lamartiniere’s sufficiency-ofthe-evidence challenge as to his convictions for Counts 1 through 7.

B.

Lamartiniere also challenges the sufficiency of the evidence 

supporting his pre-license suspension convictions (Counts 9, 13 through 16, 

18 through 19, and 25 through 30). Lamartiniere first contends that the presuspension prescriptions all served a legitimate medical purpose because 

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they helped his patients who were in pain and there was no evidence that his 

patients abused their medication. We disagree.

As to the convictions related to the undercover agents, the jury heard 

testimony and undercover recordings that Lamartiniere did not establish a 

legitimate pain diagnosis or require any objective evidence of a medical 

problem before prescribing controlled substances. In both cases, 

Lamartiniere failed to order diagnostic imaging or require prior medical 

records, and instead relied on the agents’ vague descriptions of their pain. 

For example, Dixon testified that each time he saw Lamartiniere he switched 

which leg was the source of his pain. And Dr. Kennedy testified that 

Lamartiniere’s diagnosis of Dixon with “disorder of the lower extremity” 

was “so vague as to be essentially a useless diagnosis.” Additionally, 

Lamartiniere’s assertion that his patients were in real pain cannot be 

reconciled with his statement in an undercover recording that Crawford was 

“someone that’s not really in a lot of pain,” and that his symptoms were 

“really not something” doctors prescribe “major narcotic[s]” for.

As for the convictions related to Lamartiniere’s former patients, the 

jury heard testimony that each of these patients was abusing drugs, but that 

Lamartiniere continued to prescribe them controlled substances and did not 

adequately monitor them.108 In Boudreaux’s case, he tested positive for 

heroin and negative for the drugs prescribed by Lamartiniere. Henson tested 

_____________________

108 See Lee, 966 F.3d at 318 (rejecting the defendants’ sufficiency-of-the-evidence 

challenge to their convictions of conspiring to distribute controlled substances where 

evidence showed they continued to prescribe controlled substances to their patients after 

they “either test[ed] positive for illegal drugs or test[ed] negative for the drugs [the 

defendants] had prescribed them”); Anderson, 67 F.4th at 769 (holding that the evidence 

at trial was sufficient to support a conviction under § 841(a)(1) where the “jury heard 

testimony from two of [defendant’s] former patients who testified that they either showed 

signs of or admitted to addiction when they came to [defendant] asking for pain 

medications”).

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positive for methadone, which Dr. Kennedy testified was especially 

dangerous because of the potential interactions between methadone and high 

doses of controlled substances. Finally, Doiron was diagnosed with drug 

abuse while under Lamartiniere’s care, but instead of referring him to 

substance abuse treatment or tapering his medication, Lamartiniere 

continued to prescribe him controlled substances in what Dr. Kennedy 

described as “alarming” quantities. Although Lamartiniere testified that he 

monitored his patients for signs of addiction or abuse by conducting drug 

screens and checking the PMP for evidence of doctor shopping, the 

Government presented evidence to the contrary. For example, Dr. Kennedy 

testified that there was no record of Lamartiniere’s ever drug testing Doiron, 

and Boudreaux’s PMP report obviously showed he was both doctor and 

pharmacy shopping. 

Moreover, Dr. Kennedy testified in no uncertain terms that each of 

the charged prescriptions did not serve a legitimate medical purpose. Dr. 

Kennedy’s conclusion is consistent with Dr. Mouton’s testimony and the 

Medical Board’s letter to Lamartiniere informing him that it had information 

he was “prescribing controlled substances without appropriate medical 

justification or in a manner without concern for patient safety.” Viewing the 

evidence in the light most favorable to the verdict, we conclude the 

Government presented sufficient evidence that each of Lamartiniere’s presuspension prescriptions did not serve a legitimate medical purpose.

In the alternative, Lamartiniere, for the first time on appeal, contends 

that even if the Government could show a prescription was unauthorized if it 

was outside the course of professional practice, the Government failed to 

present sufficient evidence to do so. In support of this argument, 

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Lamartiniere cites the factors this Court identified in Rosen109 as associated 

with unauthorized prescriptions and contends that “the evidence at trial 

negated most, if not all” of the factors. As noted above, we review this 

sufficiency-of-the-evidence challenge for plain error. 

First, the Rosen factors are not an exclusive list of circumstances in 

which prescriptions are unauthorized, and instead are simply “recurring . . . 

examples” of “condemned behavior” that this Court “glean[ed] from 

reported cases.”110 Second, the testimony, viewed in the light most favorable 

to the verdict, supports a finding that many of the factors identified in Rosen

are present here, such as evidence of limited physical examinations,111 early 

prescription refills,112 the use of street slang by Lamartiniere’s patients,113 and 

_____________________

109 Those factors include: (1) an “inordinately large quantity of controlled 

substances was prescribed;” (2) “[l]arge numbers of prescriptions were issued;” (3) “[n]o 

physical examination was given;” (4) the “physician warned the patient to fill prescriptions 

at different drug stores;” (5) the “physician issued prescriptions to a patient known to be 

delivering the drugs to others;” (6) the “physician prescribed controlled drugs at intervals 

inconsistent with legitimate medical treatment;” (7) the “physician involved used street 

slang rather than medical terminology for the drugs prescribed;” (8) “[t]here was no logical 

relationship between the drugs prescribed and treatment of the condition allegedly 

existing;” and (9) the “physician wrote more than one prescription on occasions in order 

to spread them out.” Rosen, 582 F.2d at 1036.

110 Id. at 1035–36.

111 Although the jury heard conflicting testimony about whether Lamartiniere 

conducted physical exams during initial visits, the testimony was undisputed that he either 

did not conduct exams on subsequent appointments or conducted only cursory ones. 

112 There was testimony at trial that Lamartiniere refilled both Crawford’s and 

Doiron’s prescriptions early based on unverified claims that their prescriptions had been 

stolen or destroyed. And Lamartiniere renewed Dixon’s Norco prescription just ten days 

after he wrote his initial prescription which was estimated to last Dixon a couple of months. 

113 Both Crawford and Dixon used street slang to describe drugs, such as “roxies” 

for Roxicodone and “addies” for Adderall. 

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testimony that there was no logical connection between the prescriptions 

Lamartiniere wrote and the alleged medical conditions he was treating.114 

And third, irrespective of the Rosen factors, the Government’s 

evidence that the prescriptions corresponding to Lamartiniere’s convictions 

were outside the usual course of professional practice was not “obviously

insufficient.”115 Dr. Kennedy testified that based on his review of the patient 

records, Lamartiniere issued the prescriptions outside the usual course of 

professional practice in part because he failed to conduct physical 

examinations (or at least to document such examinations), review past 

medical records, or require frequent drug tests. Additionally, Lamartiniere’s 

practice of continuing to write prescriptions for his patients despite clear 

signs of addiction and abuse is at odds with what Dr. Mouton testified was 

the standard of care, which requires physicians to refer their patients to 

substance abuse treatment and to taper their medications.116 

From the above sampling of the evidence alone, a jury could 

reasonably infer that Lamartiniere issued the pre-suspension prescriptions 

without a legitimate medical purpose or outside the usual course of 

professional practice, and thus the prescriptions were unauthorized.

_____________________

114As an example, in an undercover recording, Lamartiniere tells Dixon that his use 

of Adderall to stay awake was a “non-indication” of ADD, but ultimately agrees to write 

him a prescription. Dr. Kennedy testified that Lamartiniere’s prescription for Adderall 

was for an “illegitimate purpose.” 

115 Suarez, 879 F.3d at 631 (internal quotation marks and citation omitted).

116 See Moore, 423 U.S. at 127, 142–43 (“The evidence presented at trial was 

sufficient for the jury to find that respondent’s conduct exceeded the bounds of 

‘professional practice,’” given that the respondent failed to keep accurate records, “gave 

inadequate physical examinations or none at all[,] . . . ignored the results of the tests he did 

make[,] . . . and took no precautions against [drug] misuse and diversion.”).

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Lamartiniere also argues that that there was insufficient evidence to 

satisfy the mens rea element as to the pre-suspension convictions. Without 

providing any authority, Lamartiniere lists two “factors” that he deems to be 

particularly relevant in determining mens rea: “(1) Did the doctor engage in 

medical decision making and (2) did the doctor organize his practice in a 

manner designed to exploit or profit from the addiction and dependency of 

his patients.” 

The first “factor” Lamartiniere identifies appears to be another way 

of asking whether a doctor knowingly prescribed controlled substances 

without a legitimate medical purpose. According to Lamartiniere, the 

evidence presented at trial that he was “struggling” to find the medically 

correct treatment shows that he was engaged in legitimate medical decision 

making. But the jury could instead view Lamartiniere’s struggle to say “no” 

to his patients as Dr. Kennedy testified—an indication that Lamartiniere 

knew he was “considering something that is wrong.” Additionally, as 

recounted in the discussion on the deliberate ignorance instruction, the 

Government presented extensive evidence that Lamartiniere knew his 

prescriptions were not for a legitimate medical purpose.117

As to the second “factor” identified by Lamartiniere, he asserts that 

his practice and fee structure undercut any finding that he knowingly wrote 

unauthorized prescriptions. Lamartiniere highlights that he did not charge 

patients on a per-prescription basis and that one patient, Henson, testified at 

trial that Lamartiniere was “one of the hardest pain doctors . . . to obtain 

_____________________

117 See Lee, 966 F.3d at 318–19 (rejecting the defendants’ sufficiency-of-theevidence challenges to their convictions for conspiring to distribute controlled substances 

in part because of evidence that for “at least some of the[] prescriptions” defendants “had 

direct knowledge that the patients exhibited obvious drug-seeking behavior” but 

nonetheless continued to prescribe drugs).

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narcotic medications” from. But Lamartiniere’s focus on these two pieces 

of evidence, to the exclusion of extensive contrary evidence presented by the 

Government, is inconsistent with the standard of review in this case, which 

requires us to view the evidence in the light most favorable to the verdict.118

Even as it relates to the two pieces of evidence highlighted by 

Lamartiniere, his arguments fall flat. For instance, even though Lamartiniere 

did not require payment for each prescription he wrote, that by itself is not 

inconsistent with the jury’s finding that he knowingly wrote unauthorized 

prescriptions.119 In fact, the Government presented evidence that raised red 

flags about the financial structure of Lamartiniere’s practice, such as the fact 

he did not accept insurance or Medicaid.

120

 Similarly, although Henson 

testified it was difficult to get controlled substances from Lamartiniere, that 

is inconsistent with the fact that two undercover agents with vague 

allegations of prior injuries, no medical records, no previous diagnoses, and 

admissions of prior illegal drug use, were able to get prescriptions from 

Lamartiniere for progressively more potent controlled substances.121 

Accordingly, viewed in the light most favorable to the verdict, there was 

sufficient evidence that Lamartiniere had the requisite mens rea.

_____________________

118 See United States v. Cabello, 33 F.4th 281, 288 (5th Cir. 2022) (noting that we 

place “a heavy thumb on the scale in favor of the verdict” in reviewing preserved 

sufficiency-of-the-evidence challenges). 

119 See Bauer, 82 F.4th at 529 (finding “ample circumstantial evidence from which 

a jury could infer that [defendant] did have the required subjective knowledge of 

unauthorized distribution” despite the defendant’s argument that “he lacked any financial 

incentive to overprescribe opioids”).

120 See Lee, 966 F.3d at 317–18 (emphasizing that patients at defendants’ clinic 

“could not use insurance for their first visit, and they could never use Medicaid” was a 

hallmark of medical practices that serve as a front for dealing prescription drugs).

121 See United States v. Moreno-Gonzalez, 662 F.3d 369, 372 (5th Cir. 2011) (“[A]ny 

conflict in the evidence must be resolved in favor of the jury’s verdict.”).

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In sum, the evidence presented at trial was sufficient to support 

Lamartiniere’s convictions under § 841(a)(1) as to the pre-suspension 

prescriptions.

IV.

For the foregoing reasons, we AFFIRM Lamartiniere’s convictions 

under § 841(a)(1).

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