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A federal appeals court has upheld the conviction of a former physician who committed health care fraud and allowed the unsupervised distribution of painkillers from his Albany, N.Y., practice. The 2nd U.S. Circuit Court of Appeals also rejected the claim of Arvinder Singh that the U.S. Constitution should have barred a Northern District of New York judge from ordering the forfeiture of his medical license. The circuit opinion, United States v. Singh, 03-1546, was written by Judge Roger L. Miner. Singh argued that the 10th Amendment, which states that powers not delegated to the federal government are reserved for the states, forbids the enforcement of a federal statute that empowered Northern District Judge Frederick J. Scullin Jr. to strip him of his license. Singh was convicted of 16 counts of health care fraud, conspiracy to distribute and dispense controlled substances and causing, aiding and abetting the illegal distribution and dispensation of controlled substances at the close of a two-and-a-half-week trial in the Northern District of New York. Singh, who practiced from a suite at Albany Memorial Hospital, specialized in management of chronic pain. Evidence at trial showed he traveled frequently and left behind signed prescription books that allowed non-physician personnel to prescribe painkillers to patients. Records seized from his offices showed that nurses, unsupervised by a physician, had issued prescriptions to patients for more than 76,000 tablets. Judge Scullin sentenced Singh to 3 years and 10 months in prison, ordered him to pay $227,127 in restitution and directed the forfeiture of his New York medical license. On his appeal, Singh challenged the search of his office and the materials taken by law enforcement agents, the sufficiency of the evidence against him, some of Scullin’s jury instructions, and aspects of his sentence, including the forfeiture of his medical license. On the forfeiture, Singh contended that, because states have the power to issue medical licenses, the federal law that calls for the forfeiture of “tangible and intangible personal property” by those convicted of a drug felony, 21 U.S.C. �853(a), violates the 10th Amendment. CONTROLLED SUBSTANCE ACT Judge Miner said Singh relied on Linder v. United States, 268 U.S. 5 (1925). Saying that “direct control of medical practice in the states is beyond the power of the Federal Government,” the U.S. Supreme Court in Linder found that a physician who dispensed drugs to an addict could not be prosecuted under the Harrison Narcotics Law, which was a measure designed to raise revenue. The Court’s reasoning was that dispensation of a few tablets did not create the “reasonable probability” that the addict would sell the tablets and evade the government tax. Miner said Linder did not govern the case of Singh, because he was prosecuted under the Controlled Substances Act (CSA), which was intended to strengthen law enforcement authority in the field of drug abuse. “Thus, the CSA mandates criminal penalties for the illegal dispensation or distribution of narcotics, including the forfeiture of property used to effectuate the crime,” he said. “This forfeiture provision serves the purpose of the CSA, strengthening law enforcement in the area of drug abuse, much more directly than criminalizing a doctor’s dispensation of four narcotics tablets to a patient served the revenue-enhancing purpose of the Harrison” Narcotics Law. Moreover, Miner said, the “forfeiture has only a de minimis effect on the state’s acknowledged authority to regulate the practice of medicine,” and the court-ordered forfeiture of a medical license does not prevent a state from issuing a new one. Judge Rosemary Pooler and Judge Richard W. Goldberg of the U.S. Court of International Trade, sitting by designation, joined in the opinion. John L. Pollock, Susan C. Wolfe and William A. Rome of Hoffman & Pollock represented Singh. Assistant U.S. Attorneys David M. Grable, Glenn T. Suddaby and Steven D. Clymer, along with Special Litigation Counsel Robert P. Storch, represented the government.

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