United States District Court, W.D. Virginia, Abingdon Division
Zachary T. Lee, Randy Ramseyer, and S. Cagle Juhan, Assistant
United States Attorneys, Abingdon, Virginia, for United
Williams, Jr., Williams Law Office, PLC, Pennington Gap,
Virginia, for Defendant.
OPINION AND ORDER
P. JONES, UNITED STATES DISTRICT JUDGE
has convicted the defendant, a physician, of one count each
of possessing with the intent to distribute controlled
substances and maintaining a place for the purpose of
unlawfully distributing controlled substances, and numerous
counts of distributing controlled substances without a
legitimate medical purpose or beyond the bounds of medical
practice. The jury also found that the prescription of
controlled substances charged in two counts lead to the death
of a patient. For the following reasons, I will grant a
motion for judgment of acquittal as to Count One, and I will
deny a motion for judgment of acquittal or a new trial as to
the remaining counts.
facts shown at trial, viewed in the light most favorable to
the government, and as relevant to the pending motions, are
16, 2015, the defendant, Joel A. Smithers, D.O., opened an
urgent care clinic in Beckley, West Virginia. In the first
week that his clinic was open, Smithers saw approximately 80
individuals who had previously been patients at the nearby
Hope Clinic, which had closed because it was unable to obtain
a license to operate as a pain clinic. On June 23, 2015,
after receiving a complaint from another physician in
Beckley, a team from the West Virginia Office of Health
Facility Licensure and Certification visited Smithers'
clinic. Smithers told the team that they would need a
subpoena to see patient records, so the team obtained an
inspection warrant and returned to the clinic the following
day. When they returned, they found that the clinic was
locked and had been cleaned out. In the dumpsters behind the
clinic, they found untested urine samples with patient
identifying information. When they were later able to access
patient records, they found that Smithers had been treating
more than 50 percent of his patients with narcotics for pain
management without a license to operate as a pain clinic, in
violation of West Virginia law.
months later, in August of 2015, Smithers opened another
clinic in Martinsville, Virginia. Some of the patients he had
treated in West Virginia followed him to his new practice.
Others came from Kentucky and Tennessee, as well as Virginia.
On March 7, 2017, U.S. Drug Enforcement Administration
(“DEA”) agents executed a search warrant at
Smithers' clinic and residence. The agents found a total
of $57, 168 in United States currency in Smithers'
clinic, residence, and vehicle. Also inside Smithers'
vehicle, the agents found a backpack containing
over-the-counter medicine and supplement bottles. The bottles
held mixtures of hydromorphone, oxycodone, oxymorphone,
methadone, and morphine pills, along with over-the-counter
and supplement pills. The agents also found small plastic
baggies containing oxymorphone pills.
September 12, 2017, Smithers was charged in a one-count
Indictment with possessing with the intent to distribute
controlled substances. The government then obtained a
Superseding Indictment, which added one count of maintaining
a place for the purpose of unlawfully distributing controlled
substances and 714 counts of distributing controlled
substances without a legitimate medical purpose and beyond
the bounds of medical practice. A Second Superseding
Indictment added 148 counts of distributing controlled
substances without a legitimate purpose and beyond the bounds
of medical practice, for a total of 860 such
counts. With respect to two of those counts, the
government charged that the use of the controlled substances
prescribed resulted in the death of patient H.H. After an
eight-day trial, the jury returned its verdict convicting
Smithers of all charges and finding that the use of the
controlled substances at issue resulted in the death of the
has moved for a judgment of acquittal pursuant to Federal
Rule of Criminal Procedure 29, arguing that the
government's evidence was insufficient to sustain his
convictions by the jury, and for a new trial pursuant to
Federal Rule of Criminal Procedure 33, arguing that I
incorrectly instructed the jury. The motion has been fully
briefed and is now ripe for decision.
review of a motion for a judgment of acquittal under Rule 29,
the court “must sustain the verdict if there is
substantial evidence, viewed in the light most favorable to
the Government, to uphold the jury's decision.”
Burks v. United States, 437 U.S. 1, 17 (1978). In
the context of a criminal conviction, substantial evidence is
evidence that “a reasonable finder of fact could accept
as adequate and sufficient to support a conclusion of a
defendant's guilt beyond a reasonable doubt.”
United States v. Newsome, 322 F.3d 328, 333 (4th
Cir. 2003). The court should consider “circumstantial
as well as direct evidence, and allow the government the
benefit of all reasonable inferences from the facts proven to
those sought to be established.” United States v.
Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982). However,
the court must not weigh the evidence or assess the
credibility of witnesses, since this is the job of the jury.
Burks, 437 U.S. at 17.
33(a) provides that “[u]pon the defendant's motion,
the court may vacate any judgment and grant a new trial if
the interest of justice so requires.” Fed. R. Crim. P.
33(a). “The paradigmatic use of a Rule 33 motion is to
seek a new trial on the ground that the jury's verdict
was against the manifest weight of the evidence.”
United States v. Munoz, 605 F.3d 359, 373 (6th Cir.
2010) (internal quotation marks and citations omitted).
Further, courts have “widely agreed that Rule 33's
interest of justice standard allows the grant of a new trial
where substantial legal error has occurred.”
Id. (internal quotation marks and citation omitted).
“[A]ny error of sufficient magnitude to require
reversal on appeal is an adequate ground for granting a new
trial.” United States v. Wall, 389 F.3d 457
(5th Cir. 2004).
first consider the grounds on which Smithers moves for a new
trial. Smithers argues that I improperly instructed the jury
as to the counts charging him with conduct that was
“without a legitimate medical purpose or beyond the
bounds of medical practice.” Instrs. Nos. 15A, 19, 20,
ECF No. 204. Smithers contends that I should have instructed
that the government must prove that his conduct was without a
legitimate medical purpose and beyond the bounds of
medical practice. He argues that without such an instruction,
“doctors can go to jail even for a good faith error in
judgment if they happen to prescribe medication outside the
normal course of professional practice and do so unknowingly,
” or for conduct that might amount only to medical
malpractice. Def.'s Resp. to Gov't Opp'n 3,
ECF No. 245.
that no error occurred and a new trial is not
required. As Smithers acknowledges, my instruction
was proper under Fourth Circuit precedent. See United
States v. Hurwitz, 459 F.3d 463, 457 (4th Cir. 2006);
United States v. Singh, 54 F.3d 1182, 1187 (4th Cir.
1995); see also United States v. Hitzig, 63
Fed.Appx. 83, 87 (4th Cir. 2003) (unpublished) (rejecting an
instruction like that proposed by Smithers). In addition, I
instructed the jury as to the relevance of a doctor's
good faith in treating a patient and that the case did ...