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United States v. Bailey

United States District Court, W.D. Virginia, Abingdon Division

January 24, 2019

UNITED STATES OF AMERICA
v.
DWIGHT L. BAILEY, Defendant.

          Daniel P. Bubar, First Assistant United States Attorney, Roanoke, Virginia, and Janine M. Myatt, Special Assistant United States Attorney, Abingdon, Virginia, for United States; Dennis E. Jones, Abingdon, Virginia, for Defendant.

          OPINION AND ORDER

          JAMES P. JONES UNITED STATES DISTRICT JUDGE.

         A jury has convicted the defendant, a physician, of conspiring to distribute and distributing controlled substances without a legitimate medical purpose and beyond the bounds of medical practice, as well as maintaining a place for the purpose of unlawfully distributing controlled substances. He has moved for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29, and alternatively for a new trial pursuant to Federal Rule of Criminal Procedure 33, arguing that the government's evidence was insufficient to sustain his convictions by the jury. For the following reasons, I will deny the motions.

         I.

         Defendant Dwight L. Bailey was a primary care physician who began practicing medicine in 1980. From 1993 to 2014, Dr. Bailey owned a medical practice in Lebanon, Virginia. Dr. Bailey's wife, Deborah Bailey, served as the business manager of the practice, which was divided into two entities - Family Healthcare Associates of Southwest VA, P.C., a traditional medical practice, and Ridgewood Health Care Clinic, a designated rural health clinic. During the course of its operation, the practice employed laboratory and office staff, nurses, and nurse practitioners. It also employed another physician, Kevin Combs, D.O. The practice treated patients for a wide variety of ailments, including pain management. In 2006, Dr. Bailey started a drug treatment program within the practice, in which he utilized Suboxone (buprenorphine and noloxone) to treat individuals who suffered from opioid addiction. Dr. Bailey's practice ended in 2014, when the Virginia Board of Medicine suspended his medical license.

         Dr. Bailey was indicted in case number 1:17CR00029 on September 26, 2017. Three of the five counts in that Indictment were later dismissed without prejudice on the government's motion. Dr. Bailey was indicted in case number 1:17CR00036 on November 28, 2017. The two Indictments were joined for trial. See Fed. R. Crim. P. 13. After a nine-day trial beginning on July 16, 2018, the jury returned a verdict convicting Dr. Bailey of all charges. Those charges were as follows:

• Case number 1:17CR00029, Count Two. Distributing Suboxone, a Schedule III controlled substance, without a legitimate medical purpose and beyond the bounds of medical practice, to Patient #1 (also referred to as “WC”), on October 4, 2012, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(E);
• Case number 1:17CR00029, Count Three. Distributing Suboxone, a Schedule III controlled substance, without a legitimate medical purpose and beyond the bounds of medical practice, to Patient #1 (“WC”), on November 5, 2012, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(E);
• Case number 1:17CR00036, Count One. Conspiring to distribute Roxicodone (oxycodone), Dilaudid (hydromorphone), Opana ER (oxymorphone), and Percocet (acetaminophen and oxycodone), all Schedule II controlled substances, without a legitimate medical purpose and beyond the bounds of medical practice, to individuals “AC, ” “CM, ” “JP, ” “JT, ” “RC, ” and “TP, ” in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), 846;
• Case number 1:17CR00036, Count Two. Conspiring to distribute Lortab (hydrocodone and acetaminophen), Norco (hydrocodone and acetaminophen), and Suboxone, all Schedule III controlled substances, without a legitimate medical purpose and beyond the bounds of medical practice, to individuals “CM, ” “JT, ” “TP, ” and “WC, ” in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(E), 846;
• Case number 1:17CR00036, Count Three. Conspiring to distribute Ambien (zolpidem), Klonopin (clonazepam), Xanax (alprazolam), Valium (diazepam), and Restoril (temazepam), all Schedule IV controlled substances, without a legitimate medical purpose and beyond the bounds of medical practice, to individuals “AC, ” “CM, ” “JP, ” “JT, ” “RC, ” and “TP, ” in violation of 21 U.S.C. §§ 841(a)(1), (b)(2), 846;
• Case number 1:17CR00036, Counts Four through Twenty-Seven. As a principal or aider and abettor, distributing Schedule II controlled substances, Percocet and Roxicodone, without a legitimate medical purpose and beyond the bounds of medical practice, to individuals “CM” and “JP, ” all in violation of 18 U.S.C. § 2 and 21 U.S.C. § 841(a)(1), (b)(1)(C);
• Case number 1:17CR00036, Count Twenty-Eight. As a principal or aider and abettor, distributing a Schedule III controlled substance, Norco, without a legitimate medical purpose and beyond the bounds of medical practice, to individual “CM, ” all in violation of 18 U.S.C. § 2 and 21 U.S.C. § 841(a)(1), (b)(1)(E);
• Case number 1:17CR00036, Counts Twenty-Nine through Sixty. As a principal or aider and abettor, distributing Schedule IV controlled substances, Klonopin, Ambien, Diazepam, and Restoril, without a legitimate medical purpose and beyond the bounds of medical practice, to individuals “CM” and “JP, ” all in violation of 21 U.S.C. § 841(a)(1), (b)(2); and
• Case number 1:17CR00036, Count Sixty-One. As a principal or aider and abettor, knowingly and intentionally maintaining a place for the purpose of unlawfully distributing controlled substances, all in violation of 18 U.S.C. § 2 and 21 U.S.C. § 856(1).

         Dr. Bailey has moved for a judgment of acquittal and alternatively for a new trial, arguing that the government failed to present evidence sufficient to allow a jury to find beyond a reasonable doubt that he conspired to distribute, actually distributed, or aided and abetted the distribution of controlled substances without a legitimate medical purpose and beyond the bounds of medical practice. Instead, he asserts that the evidence showed that he made a good-faith effort to treat ...


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