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Doctor acquitted of drug trafficking charge

Although the court sustained the jury’s convictions on the counts for distributing controlled substances without a legitimate medical purpose or beyond the bounds of medical practice, it acquitted the defendant on the possession with the intent to distribute controlled substances charge because there was insufficient evidence to support this conviction.

Background

A jury has convicted the defendant, Joel A. Smithers, 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.

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 the court incorrectly instructed the jury.

Analysis

Smithers argues the court 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.” Smithers contends the court 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.

The court finds that no error occurred and a new trial is not required. As Smithers acknowledges, the instruction was proper under Fourth Circuit precedent. In addition, the court instructed the jury as to the relevance of a doctor’s good faith in treating a patient and that the case did not concern whether Smithers acted carelessly or negligently. Accordingly, the court turns to the grounds on which Smithers moves for a judgment of acquittal.

Smithers first contends that no reasonable juror could find the government’s evidence sufficient to convict him of Count One, which charged him with possessing with the intent to distribute controlled substances. There was no evidence that Smithers intended to distribute the controlled substances found in his vehicle to any particular patients. The government does not contend — and there was no evidence — that Smithers dealt drugs unconnected to his medical practice.

While the government argues that Smithers’ medical practice was purely a cover for illegal drug trafficking, pointing out that he signed blank prescriptions for his employees to fill in and give to patients when he was not present at the clinic and thus had not seen the patients in person, and that on multiple occasions, he wrote and mailed prescriptions for patients he had not seen, there was no evidence that he ever abandoned the pretense of practicing medicine in order to distribute controlled substances. In light of the evidence in the government’s case, the court finds that a reasonable jury could not find beyond a reasonable doubt that Smithers was guilty of Count One.

Smithers also argues that no reasonable juror could find the government’s evidence sufficient to convict him of each count relating to a patient who did not testify at trial. He contends that the evidence as to those counts is insufficient because it consisted only of the testimony of the government’s expert witness, Deeni Bassam, M.D., and the patient and prescription records for each individual. The court disagrees, finding that Smithers was afforded individual review of each count against him, and there was evidence sufficient to convict him on each count.

Lastly, Smithers argues that no reasonable juror could find the government’s evidence sufficient to convict him of each count relating to patients J.L., B.F. and J.P., because each of these patients testified that they had a legitimate medical need for the controlled substances that he had prescribed for them. The court rejects this argument.

Defendant’s motions granted in part, denied in part.

United States v. Smithers, Case No. 17-cr-00027, July 31, 2019. WDVA at Abingdon (Jones). VLW 019-3-369. 17 pp.

VLW 019-3-369

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