United States' Motion to Dismiss Indictment — United States v. Donald Hyungjoon Kim, M.D. (Document 53)

Summary

In this motion, the United States asks the Western District of Oklahoma to dismiss, without prejudice, the Indictment returned June 17, 2020 against Donald Hyungjoon Kim, M.D., pursuant to Federal Rule of Criminal Procedure Rule 48(a). It says the Indictment charged 154 counts of distributing controlled substances outside the usual course of medical practice and without medical necessity, including 3 counts of distribution with death resulting. The motion cites the Supreme Court's June 27, 2022 opinion in Ruan v. United States, which it says inserted a mens rea requirement, and states that the United States has concluded the Indictment is defective. The signature block names Matthew P. Anderson.

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         Case 5:20-cr-00163-PRW Document 53 Filed 07/29/22 Page 1 of 3




             IN THE UNITED STATES DISTRICT COURT FOR THE

                       WESTERN DISTRICT OF OKLAHOMA


UNITED STATES OF AMERICA,   )
                            )
             Plaintiff,     )
                            )
        -vs-                )                     No. CR-20-163-PRW
                            )
DONALD HYUNGJOON KIM, M.D., )
                            )
             Defendant.     )

                UNITED STATES’ MOTION TO DISMISS INDICTMENT

       The United States of America, pursuant to Federal Rule of Criminal Procedure Rule

48(a), respectfully moves this Court to dismiss the Indictment, returned June 17, 2020, in

the above-styled case without prejudice. Such action would best meet the ends of justice

for the following reasons:

       1.     On June 17, 2020, a federal grand jury issued an Indictment charging

Defendant Donald Hyungjoon Kim, M.D. with 154 counts of distributing controlled

substances outside the usual course of medical practice and without medical necessity to

include 3 counts of distribution with death resulting. (Doc. 1.)

       2.     On June 27, 2022, the Supreme Court issued its opinion in Ruan v. United

States, --- U.S. ----, 142 S.Ct. 2370 (2022). In Ruan, the Supreme Court held that the

government must “prov[e] that a defendant knew or intended that his or her conduct was

unauthorized,” which inserted a mens rea requirement that had not previously been

recognized. Id. at 2382; see United States v. Khan, 989 F.3d 806, 825 (10th Cir. 2021),
             Case 5:20-cr-00163-PRW Document 53 Filed 07/29/22 Page 2 of 3




vacated and remanded by Ruan, 142 S.Ct. 2370 (holding that Ҥ 841(a)(1) and

§ 1306.04(a) require the government to provide that a practitioner-defendant 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”).

        3.       Based on this intervening Supreme Court ruling, the United States has

concluded that the Indictment is defective. As such, the government believes that the ends

of justice would best be served by dismissing, without prejudice, the Indictment in this

case.

        WHEREFORE, the United States requests that this Court enter an Order dismissing,

without prejudice, the Indictment filed herein on June 17, 2020.

                                                Respectfully submitted,

                                                ROBERT J. TROESTER
                                                United States Attorney

                                                s/ Matthew P. Anderson
                                                MATTHEW P. ANDERSON
                                                OK Bar No. 30472
                                                Assistant U.S. Attorney
                                                210 Park Avenue, Suite 400
                                                Oklahoma City, Oklahoma 73102
                                                (405) 553-8700 (Office)
                                                (405) 553-8888 (Fax)
                                                matthew.anderson2@usdoj.gov
        Case 5:20-cr-00163-PRW Document 53 Filed 07/29/22 Page 3 of 3




                            CERTIFICATE OF SERVICE

       I hereby certify that on July 29, 2022, I electronically transmitted the attached
document to the Clerk of Court using the ECF System for filing and transmittal of a Notice
of Electronic Filing to the following ECF registrant:

      Nick Oberheiden, counsel for Donald Hyungjoon Kim, M.D.

                                                s/ Matthew P. Anderson
                                                MATTHEW P. ANDERSON
                                                Assistant U.S. Attorney


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