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United States v. Nasher-Alneam

United States District Court, S.D. West Virginia, Charleston

June 26, 2019

UNITED STATES OF AMERICA
v.
MUHAMMED SAMER NASHER-ALNEAM, M.D.

          MEMORANDUM OPINION AND ORDER

          DAVID A. FABER, SENIOR UNITED STATES DISTRICT JUDGE

         Before the court is defendant Muhammed Samer Nasher-Alneam, M.D.'s motion made at trial under Rule 29(b) of the Federal Rules of Criminal Procedure for judgment of acquittal and Brief in Support by Muhammed Samer Nasher-Alneam of (Oral) Motion for Judgment of Acquittal (ECF No. 181). The government filed a Response in Opposition. (ECF No. 197). For the reasons that follow, the defendant's motion is GRANTED, in part, and DENIED, in part.

         I. BACKGROUND

         After the government presented its case, the defendant orally moved for a judgment of acquittal on counts five, sixteen, fifteen, and nineteen through twenty-two. The court reserved its ruling on the motion. Following the 15-day trial, four of which days the jury deliberated, the jury communicated to the court on the record they would not be able to reach a unanimous decision as to any Count of the Second Superseding Indictment. After the jury communicated this to the court, the defendant made an oral motion for a mistrial. The court granted the defendant's motion on the record. The defendant then orally renewed its motion for judgment of acquittal on the specific counts discussed below.

         II. APPLICABLE LAW

         On deciding a motion under Rule 29, the court must view the evidence in the light most favorable to the government and give the government the benefit of all reasonable inferences to be drawn from that evidence. United States v. Bailey, 819 F.3d 92, 95 (4th Cir. 2016); United States v. Lespeir, 725 F.3d 437, 447 (4th Cir. 2013); United States v. Royal, 731 F.3d 333, 337 (4th Cir. 2013); United States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982). The trial court is not permitted to judge the credibility of the witnesses; it must assume that the jury resolved all contradictions in favor of the government. United States v. Romer, 148 F.3d 359, 364 (4th Cir. 1998), cert. denied, 525 U.S. 1141 (1999). When a motion for judgment of acquittal is made at the conclusion of the government's case in chief and the court reserves its ruling, the court must decide the motion on the basis of the evidence at the time the ruling was reserved. Fed. R. Crim. P. 29(b).

         III. ANALYSIS

         A. Defendant's Allegation that Count Sixteen Should Be Dismissed.

         Count Sixteen of the Second Superseding Indictment charges the defendant with the illegal distribution of oxycodone and oxymorphone, resulting in the death of A.J. The defendant argues that he should be acquitted of this count for two main reasons. First, the defendant argues that it would be unconstitutional to permit the jury to convict Dr. Nasher without reaching unanimity as to a single distribution of a controlled substance whose use resulted in the death of a patient.[1] (See ECF No. 181, p. 2). Second, the defendant argues that the government's case did not provide sufficient evidence for a jury to determine beyond a reasonable doubt that the oxycodone found post-mortem in A.J.'s body is attributable to drugs obtained from the defendant. (See id., p. 3). Because only the defendant's second argument relates to the sufficiency of the government's evidence, the court will only consider this argument for the Rule 29 analysis. See U.S. v. Mackins, 32 F.3d 134, 138 (4th Cir. 1994) (explaining that a judgment of acquittal must be based upon the insufficiency of the evidence).

         In support of his argument that the government presented insufficient evidence for Count Sixteen, the defendant states that the government presented no evidence that the February 3, 2015 Percocet[2] prescription was ever picked up at the pharmacy. (ECF No. 181, p. 2). The defendant further states that “[t]he February 24, 2015 Percocet prescription-alleged to cause the death of A.J.-was torn up and thrown away in a bus station in Columbus, Ohio.” Id. Thus, the defendant argues that the government presented insufficient evidence for a reasonable jury to conclude that any Percocet prescription was ever filled leading up to the death of A.J. Id.

         The court finds that there was sufficient evidence for a jury to reach a reasonable conclusion that A.J. filled and picked up the prescription for Percocet on February 3, 2015. As the government detailed in its responsive brief to the defendant's motion, while the February 3, 2015 prescription does not appear on the West Virginia Board of Pharmacy record for A.J., FBI Special Agent Jennifer King testified that the prescription was retrieved from BeWell and the prescription has a sticker on it indicating that the prescription was filled. (See ECF No. 197, p.6). The February 3, 2015 prescription was for a 30-day supply of Percocet. See id. The government argues that this evidence coupled with the testimony of Ricky Johnson, who testified that the February 24, 2015 Percocet prescription was too early to fill, would allow a jury to reasonably conclude that A.J. filled and picked up the prescription of Percocet on February 3, 2015. Id. The court agrees with the government as to the sufficiency of this evidence.

         Thus, because the court finds that the government presented sufficient evidence for a jury to determine beyond a reasonable doubt that the oxycodone found post-mortem in A.J.'s body is attributable to drugs obtained from the defendant, the defendant's motion for a judgment of acquittal for Count Sixteen is DENIED.

         B. Defendant's Contention That He Should Be Acquitted of Count Fifteen.

         Count Fifteen of the Second Superseding Indictment charges the defendant with the illegal distribution of oxycodone, resulting in the death of S.S. First, the defendant argues there was not competent evidence presented at trial from which a jury could conclude that S.S.'s death resulted from the use of substances prescribed by him. (ECF No. 181, p. 3). Second, the defendant argues his Sixth Amendment confrontation rights were violated because he did not have the opportunity to cross-examine the individual at NMS Lab, located in Willow Grove, P.A., who conducted the toxicology analysis regarding S.S. Id.

         Regarding the sufficiency of evidence at trial, the court agrees with the government that there was sufficient evidence in the record to permit a reasonable jury to return a verdict of guilty on Count Fifteen. As the government highlighted in its Response in Opposition to the defendant's motion for judgment of acquittal:

Dr. Gene Kennedy testified that the oxycodone prescription issued by the defendant to S.S. on September 9, 2014, was not for a legitimate medical purpose and was issued outside the course of a legitimate medical purpose. Dr. Stacey Hail testified that oxycodone, which was prescribed to S.S. by Dr. Nasher only three days before his death, was the cause of death. Robert Crawford further testified about the behavior of S.S. on the night he died, telling the jury that S.S. was removing oxycodone pills from a prescription medicine bottle, crushing them, and snorting them. Corporal Howell, who responded to S.S.'s residence to investigate the unattended death, corroborated the account of Mr. Crawford when he testified about observing white powder residue, a hammer covered with white residue, and two straws on a table in the residence. Finally, ...

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