Tag Archives: good faith

4th Circuit Reverses Pill Mill Case on Flawed Jury Instruction – Update for Thursday, February 8, 2024

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

DOC ‘FEELGOOD’ HAS TO KNOW IT’S WRONG, 4TH CIRCUIT SAYS

feelgood211019Dr. Joel Smithers ran what the government claimed was a pill mill. The government’s witnesses painted a grim picture of the nonstop line of addicted people who drove 5-6 hours to pay Dr. Joel $300 in cash for an opioid prescription. Over the course of a few years, he wrote prescriptions for tens of thousands of doses.

At trial, Joel offered an explanation for every suspicious behavior identified by the government. — “why his patient forms didn’t indicate which pharmacy would fill their prescriptions, why he didn’t order MRIs when they were needed, why he didn’t take insurance, why he had an extremely unusual payment set-up… why he FedExed prescriptions to patients, and why he had a pre-signed prescription pad in the office… He said he believed that the prescriptions he’d written for each patient were for a legitimate medical purpose.”

The trial court refused to instruct the jury that they had to find Dr. Jerry lacked an actual belief that the prescriptions were appropriate. Joel was convicted of hundreds of 21 USC 841(a) counts and sentenced to 480 months.

While Doc Joel’s appeal was pending, the Supreme Court ruled in Ruan v. United States that when a criminal defendant is authorized to dispense controlled substances — such as a doctor who may lawfully prescribe medications — prosecutors can only win a conviction under 21 USC § 841(a) by proving beyond a reasonable doubt that the defendant intended to act or knew he or she was acting in an unauthorized manner.

Last Friday, the 4th Circuit threw out Joel’s conviction.

bugs220701The government argued that, despite the Ruan decision, other instructions – such as willful blindness and “good faith” – were enough to tell the jury that it had to find that Joel knew what he was doing was wrong. The 4th rejected this, noting that the Ruan court had rejected the same claim; Ruan noted that words like “good faith,” “objectively,” “reasonable,” or “honest effort” appear nowhere in the statute and would ‘turn a defendant’s criminal liability on the mental state of a hypothetical ‘reasonable’ doctor, rather than on the mental state of the defendant himself or herself’.”

yellowpill170905Ruan held that “‘good faith’ is an objective test,” not the inquiry into the doctor’s actual state of mind that the statute requires. The “good faith” instruction in Joel’s case “directly contravenes Ruan,” the 4th said. “Far from helping the government, it proves Defendants point.”

Joel will get a new trial with a jury instructed that it must find that he “intended to act or knew he was acting in an unauthorized manner.”

United States v. Smithers, Case No 19-4761, 2024 U.S.App. LEXIS 2399 (4th Cir., Feb 2, 2024)

– Thomas L. Root

SCOTUS May Be Looking at ‘Pill Mill’ Pusher Standards – Update for October 19, 2021

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

TRIPLE RELIST SUGGEST LIKELY SCOTUS REVIEW OF ‘PILL MILL’ STANDARDS

feelgood211019In Supreme Court-speak, a “relist” is a petition for certiorari that is neither granted nor denied, but rather held over for consideration at a subsequent conference of justices, some with the court issued a “CVSG” (a “call for the views of the Attorney General”). A petition is usually “relisted” because of debate among the justices as to its merit. With only four votes required for grant of certiorari, being “relisted” substantially increases the chances that a petition will be granted, and the case set for briefing. 

According to one academic study, a petition in a non-pauper case (in which the petitioner is able to pay the usual $300 filing fee) “is over 46 times more likely to be granted following a CVSG.” Every relisted case is back to be considered another time at the next conference.

Last week, SCOTUS set three petitions – all of which raise the same question – for a second relist. The Court will consider whether to hear the trio at its next conference, set for October 29th. If certiorari is granted, it could alter felony drug distribution cases involving physicians.

Currently, a physician can be convicted of dispensing controlled substances in violation of 21 USC 841(a) if the dispensing is “outside the usual course of professional practice” or “for other than a legitimate medical purpose. ” In Naum v. United States and Coonce v. United States, the question raised is whether the government may merely prove it was either one – “outside the usual course of professional practice” – or the other – for other than a legitimate medical purpose – but not necessarily both.

In Ruan v. United States, the question is related. To ensure that physicians are not convicted for merely negligent conduct, courts generally permit doctors to advance a “good faith” defense. Ruan asks whether a physician alleged to have prescribed controlled substances outside the usual course of professional practice may be convicted under 841(a)(1) without regard to whether, in good faith, he or she “reasonably believed” or “subjectively intended” that his prescriptions fall within that course of professional practice.

Naum v. United States, Case No 20-1480 (cert pending)
Coonce v. United States, Case No 20-7934 (cert pending)
Ruan v. United States, Case No 20-1410 (cert pending)

– Thomas L. Root