71 F.4th 155
4th Cir.2023Background
- Dr. Jong Whan Kim, a physician, pleaded guilty to a conspiracy and multiple counts under 21 U.S.C. § 841 for prescribing controlled substances "outside the usual course of professional practice" and without legitimate medical purpose; sentenced to 78 months.
- Clinic operated as a pill mill: minimal exams, cash payments (~$200), high daily volume, prescriptions for absent persons, pharmacists/pharmacies discussed, and large cash deposits by clinic staff.
- A confidential informant (CI) corroborated illicit practices: repeated visits, purchases, prescriptions for nonpatients, requests for higher dosages to sell, and purchases of pills and marijuana; CI paid cash and observed Thompson sell marijuana in Kim’s presence.
- Kim initially hesitated at a plea hearing, said he did not act willfully; that hearing was continued. Kim later executed a revised plea agreement, admitted guilt at a December 28, 2021 hearing, and was sentenced.
- After sentencing the Supreme Court decided Ruan v. United States (2022), holding the Government must prove a defendant’s subjective knowledge or intent that prescriptions were unauthorized; Kim appealed, arguing his plea was uninformed re: Ruan mens rea and that allocution was inadequate.
Issues
| Issue | Kim's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether the plea was invalid because the court did not inform Kim that Ruan requires proof that he knew prescriptions were unauthorized | Failure to advise of Ruan mens rea meant plea was not knowing/voluntary | No error: court’s colloquy, indictment, and prior disclosures adequately conveyed nature of charges | No plain error; plea valid |
| Whether the indictment/colloquy satisfied Rule 11 notice requirements despite pre-Ruan precedent treating authorization objectively | The court’s explanations reflected pre-Ruan law and omitted the required subjective mens rea | Indictment expressly alleged intent to act outside usual practice; court repeatedly told Kim government bore burden of proof | Indictment + colloquy + prior counsel discussions were sufficient to convey the true nature of charges |
| Whether Kim can show prejudice (reasonable probability he would have gone to trial if properly informed) | Initial hesitancy and factual basis lacking explicit proof of subjective intent show he would have gone to trial | Strong circumstantial evidence and post-investigation admissions made trial victory unlikely; family pressure favored pleading | Kim failed to show a reasonable probability he would have declined the plea; no substantial-rights violation |
| Whether Kim’s right to allocution was violated because court expressed views before allowing him to speak | Court’s preliminary comments rendered allocution meaningless | Rule 32 permits court to express tentative views; allocution need only occur before sentence is imposed | No plain error: defendant was addressed and given opportunity to speak before sentence was imposed |
Key Cases Cited
- Ruan v. United States, 142 S. Ct. 2370 (2022) (holding Government must prove defendant’s subjective knowledge or intent that prescriptions were unauthorized)
- Bousley v. United States, 523 U.S. 614 (1998) (guilty plea must be voluntary and intelligent; notice of true nature of charge required)
- Greer v. United States, 141 S. Ct. 2090 (2021) (plain-error review framework and demanding burden on appellant)
- Olano v. United States, 507 U.S. 725 (1993) (standards for plain-error review)
- United States v. Wilson, 81 F.3d 1300 (4th Cir. 1996) (courts need not script Rule 11 colloquy; may rely on indictment and prior disclosures)
- United States v. DeFusco, 949 F.2d 114 (4th Cir. 1991) (plea can rest on detailed information provided before the plea hearing)
- United States v. Dominguez Benitez, 542 U.S. 74 (2004) (analysis of whether omitted plea information affected defendant’s decision to plead)
- United States v. Engle, 676 F.3d 405 (4th Cir. 2012) (allocution satisfied so long as defendant is personally addressed and permitted to speak before sentence is imposed)