US v. Smithers: Smithers was a rural Virginia doctor who was eventually charged (after a couple of superseding indictments) with hundreds of counts of unlawful dispensing and distribution of controlled substances. Witnesses at trial testified that many of Smithers’ patients did not pay for their own prescriptions, some failed drug tests and other controls meant to root out abuse, and Smithers sent some prescriptions through the mail without seeing patients in the office. An expert witness testified that Smithers’ practices were outside the scope of professional practice and not for legitimate medical purposes. Smithers was convicted on all counts and sentenced to 480 months in prison.
In his appeal, Smithers challenged (among other things) the jury instructions given during his trial. His case was initially put in abeyance pending the outcome of the Supreme Court’s decision in Ruan, which addressed the mens rea which the Government was required to prove in order secure a conviction in cases like this one. In light of Ruan, and after supplemental briefing, the Fourth Circuit vacated Smithers’ convictions.
First, the court concluded that Smithers had properly raised the issue below and, even if he had not, he was not precluded from presenting it in supplemental briefing as “it would have been futile for him to argue for a subjective standard” in his opening brief. Second, the court turned to the instructions given at trial. At issue was the definition of “unauthorized” prescribing, which was defined as either “without a legitimate medical purpose or beyond the bounds of medical practice.” The court held that the instruction “misstated the law post-Ruan” and that the error was not corrected by any other jury instructions that had been given. Nor was the error harmless.
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