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United States v. Smithers

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

July 31, 2019

UNITED STATES OF AMERICA
v.
JOEL A. SMITHERS, Defendant.

          Zachary T. Lee, Randy Ramseyer, and S. Cagle Juhan, Assistant United States Attorneys, Abingdon, Virginia, for United States

          Don M. Williams, Jr., Williams Law Office, PLC, Pennington Gap, Virginia, for Defendant.

          OPINION AND ORDER

          JAMES P. JONES, UNITED STATES DISTRICT JUDGE

         A jury 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.

         I.

         The facts shown at trial, viewed in the light most favorable to the government, and as relevant to the pending motions, are as follows.

         On June 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.

         A few 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.

         On 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.[1] 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 patient.

         Smithers 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.[2]

         II.

         On 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.

         Rule 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).

         A.

         I will 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.[3] Def.'s Resp. to Gov't Opp'n 3, ECF No. 245.

         I find that no error occurred and a new trial is not required.[4] 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 ...


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