Fourth Circuit Issues Important Case Interpreting Ruan: Smithers

Smithers:  Charged and convicted of Pill-Mill Offenses

Smithers was charged with possession of a controlled substance with intent to distribute. The Government then added hundreds of counts to the charges via superseding indictments.

At trial the prosecutors brought forth evidence to show that Smithers ran a “pill mill,” essentially that Smithers prescribed pain killer medication to many individuals despite multiple problems like failed drug tests, failed pill counts (as in the patient showed up with less pills than they should have given what their instructions were on how to consume the pills and patients being convicted of crimes surrounding drug charges.  Smithers dispensed or distributed drugs that resulted in the death of a patient. Patients travelled many hours to see Smithers, employing people to transport them to his office and giving those people pills as payments. Smithers also had scant medical files on the patients that he had. Eventually Smithers was convicted on all counts and after post-trial litigation, he was sentenced to 480 months overall.

Smithers Appeals Citing Ruan's Protections

Smithers appealed the conviction, indicating that the jury instructions were improper. While the ruling was pending, Ruan was decided, holding “that the statute’s ‘knowingly or intentionally’ mens rea applies to ‘except as authorized.’”

Smithers objected to instructions that used the phrase “without a legitimate medical purpose or beyond the bounds of medical practice[,]” indicating that these instructions “(1) failed to state that Smithers could only be convicted if he knew that his conduct was unauthorized and (2) created a strict liability offense by phrasing the mens rea requirements in the disjunctive.”

The court indicated that they needed to look at the jury instructions holistically and reviewed for abuse of discretion.

The Fourth Circuit Holds that the Jury Instructions were Improper

Smithers objected to Jury instructions 15, 19, and 20, which use the phrase “without a legitimate medical purpose or beyond the bounds of medical practice.”  “Instruction No. 15 summarizes the three types of charges across all the counts, No. 19 summarizes the three elements that the government must prove for the unlawful-distribution counts, and No. 20 explains in detail the third element of unlawful distribution (“acted without a legitimate medical purpose or beyond the bounds of medical practice”).”  This was the holding from the Ruan case. So the question then became if other jury instructions corrected the error.

The Fourth Circuit indicated that the willful-blindness instruction, number 24, was improper. The court rejected the government’s response that that jury instruction was “’squarely directed at proof beyond a reasonable doubt that Smithers knew (by way of deliberately avoiding his patients’ obvious drug abuse) that his prescriptions were not for a legitimate medical purpose or were beyond the bounds of the medical practice.’” They did this because Jury instruction 20 did not require a finding that Smithers knowingly acted outside the course of professional practice. Had it required that finding, the willful-blindness instruction would have instructed the jury that they could find the requisite mens rea for acting ‘beyond the bounds of medical practice’ without a showing of actual knowledge.”

Smithers also said that the aiding and abetting instructions were improper as well. The government argued “that the knowing standard in these instructions makes up for any error elsewhere.”  But the court noted that argument “assumes that the jury convicted Smithers as an aider and abettor, as opposed to a principal… [a]nd in fact, it is much more likely that the jury convicted him as a principal.’ …Smithers was presented as the ring master of the whole operation. The aiding-and-abetting instructions cannot cure the fundamental mens rea error.”

The court also said that the good-faith instruction also fails to cure the mens rea error. The court noted that ‘the district court in Ruan also gave ‘good faith’ instructions, and the Supreme Court explicitly rejected reliance on that standard... It 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.’

In short, the Ruan error was not cleared by the other jury instructions.

The court Found that the Jury Instruction Error Harmed Smithers

The court also found that the error was not harmless:

“For each patient about whom the government actually presented evidence, Smithers spoke about their medical records, their complaints, and what incidents led to their pain. Almost all of them had had significant accidents, often car or workplace accidents. Smithers testified that he believed there was a legitimate medical purpose for each of the prescriptions. True, much of the testimony wasn’t particularly convincing, as weighed against the prosecution’s evidence. And a jury might very well not have believed Smithers’ testimony that he was acting with a legitimate medical purpose. But copious evidence of a defendant’s. guilt does not necessarily make an instructional error harmless…The defense provided evidence that could rationally have led to a contrary finding on each of the unlawful-distribution counts. And because, as explained above, the conviction on Count 2 effectively rested on the unlawful-distribution convictions, the error in the Count 2 instructions also wasn’t harmless.”

As a result of this the court found that the conviction should be overturned.