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United States v. Naum

United States District Court, N.D. West Virginia

October 2, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
GEORGE P. NAUM, III, Defendant.

          MEMORANDUM OPINION AND ORDER DENYING DEFENDANT'S MOTION FOR A NEW TRIAL [DKT. NO. 345]

          IRENE M. KEELEY, UNITED STATES DISTRICT JUDGE.

         On April 30, 2019, following a six-day trial, a jury convicted the Defendant, George P. Naum, III (“Naum”), of one count of conspiracy to distribute controlled substances outside the bounds of professional medical practice, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), 841(b)(1)(E)(iii), and 846, as charged in Count Twenty-Two of the Indictment, and four counts of aiding and abetting the distribution of controlled substances outside the bounds of professional medical practice, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 841(b)(1)(E)(iii) and 18 U.S.C. § 2, as charged in Counts Twenty-Four, Twenty-Five, Twenty-Seven, and Twenty-Eight of the Indictment (Dkt. Nos. 322, 323). Post trial, Naum moved for a new trial pursuant to Federal Rule of Criminal Procedure 33 (Dkt. No. 345). For the reasons that follow, the Court DENIES the motion (Dkt. No. 345).

         I. BACKGROUND

         On January 9, 2018, a grand jury sitting in the Northern District of West Virginia returned a fifty-count indictment, charging Naum with one count of conspiracy to distribute controlled substances outside the bounds of professional medical practice, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), 841(b)(1)(E)(iii), and 846 (Count Twenty-Two), and ten counts of aiding and abetting the distribution of controlled substances outside the bounds of professional medical practice, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 841(b)(1)(E)(iii) and 18 U.S.C. § 2 (Counts Twenty-Three through Thirty-Two) (Dkt. No. 1).[1]

         Naum's jury trial began on April 23, 2019, and lasted six days (Dkt. Nos. 301, 323). The evidence included testimony from numerous witnesses called by the Government, including Diversion Investigator Guy McCartney, Special Agent Matthew Eagles, Corporal John W. Smith, Dr. Patrick Marshalek, codefendants Sharon Jackson (“Jackson”) and Eric Drake (“Drake”), and several former patients, W.E., N.H., and N.S. (Dkt. No. 372 at 3).

         On June 14, 2019, Naum timely filed his motion for a new trial (Dkt. No. 345). The motion was fully briefed as of August 23, 2019, and is now ripe for disposition.

         II. LEGAL STANDARD

         Under Federal Rule of Criminal Procedure 33, a court may vacate a criminal conviction and grant a new trial “if justice so requires.” However, “a trial court should exercise its discretion to award a new trial sparingly, and a jury verdict is not to be overturned except in the rare circumstance when the evidence weighs heavily against it.” United States v. Smith, 451 F.3d 209, 217 (4th Cir. 2006); United States v. Munoz, 605 F.3d 359, 373 (6th Cir. 2010) (“The paradigmatic use of a Rule 33 motion is to seek a new trial on the ground that the jury's verdict was against the manifest weight of the evidence.” (cleaned up)). “Further, courts have ‘widely agreed that Rule 33's interest of justice standard allows the grant of a new trial where substantial legal error has occurred.'” United States v. Smithers, No. 1:17CR00027, 2019 WL 3456625, at *2 (W.D. Va. July 31, 2019) (quoting Munoz, 605 F.3d at 373). But “any error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.” Fed. R. Crim. Pro. 52(a).

         III. DISCUSSION

         Naum's motion contends that the interests of justice require a new trial because (1) the Government was required to prove that the prescriptions Naum issued were without a legitimate medical purpose; (2) the Government presented insufficient evidence to sustain its burden of proof; and (3) the Court committed substantial legal error by excluding evidence of the Massachusetts and Vermont models of treatment (Dkt. Nos. 345, 359). As discussed further below, the Court finds that the Government satisfied its burden of proof and that no substantial legal error occurred. It therefore DENIES Naum's motion (Dkt. No. 345).

         A. The Government was not required to prove that Naum's prescriptions were issued without a legitimate medical purpose.

         Naum contends that a new trial is required because the Government never introduced evidence to establish that his prescriptions were issued without a legitimate medical purpose (Dkt. Nos. 345 at 5-7, 359 at 22-29). This argument, however, is based on a fundamental misunderstanding of the relevant statutory language and controlling Fourth Circuit precedent.

         “To convict a physician of distributing a controlled substance in violation of [21 U.S.C.] § 841, the Government must prove the following three elements.” United States v. Singh, 54 F.3d 1182, 1186-87 (4th Cir. 1995). “First, it must show that the defendant ‘distributed or dispensed a controlled substance.'” Id. at 1187 (quoting United States v. Tran Trong Cuong, 18 F.3d 1132, 1141 (4th Cir. 1994)). “Second, it must prove that, in doing so, ‘he acted knowingly and intentionally.'” Id. (quoting same). Third, “the evidence must show that the defendant's ‘actions were not for legitimate medical purposes in the usual course of his professional medical practice or [were] beyond the bounds of medical practice.'” Id. (alteration in original) (emphasis added) (quoting same). “While the government may meet its burden of proving guilt by showing that a physician dispensed a controlled substance for an illegitimate purpose, the government is not required to make such a showing.” United States v. Hitzig, 63 Fed.Appx. 83, 87 (4th Cir. 2003) (citing Singh, 54 F.3d at 1188).

         Under the Fourth Circuit's decisions in Singh, Tran Trong Cuong, and Hitzig, the Government may prove the third element of the offense by showing that Naum's actions either were (1) not for legitimate medical purposes or (2) beyond the bounds of medical practice. Every other circuit court to address this question has reached the same conclusion. See United States v. Merrill, 513 F.3d 1293, 1306 (11th Cir. 2008) (holding a doctor has violated § 841 when the government has proved beyond a reasonable doubt that the doctor's actions were not for legitimate medical purposes in the usual course of professional medical practice or were beyond the bounds of professional medical practice); United States v. Nelson, 383 F.3d 1227, 1231-32 (10th Cir. 2004) (“A practitioner has unlawfully distributed a controlled substance if she prescribes the substance either outside the usual course of medical practice or without a legitimate medical purpose.” (emphasis added)); cf. United States v. Boettjer, 569 F.2d 1078, 1081 (9th Cir. 1978) (holding both a “legitimate medical purpose” and “usual course” must be met for a prescription to be validly issued).

         Naum further contends that, to sustain a conviction under § 841, the Government was effectively required to prove “that he had abandoned the practice of medicine and was acting as a drug pusher” (Dkt. No. 359 at 29). But the cases he cites in support do not compel that conclusion. For example, in United States v. Moore, 423 U.S. 122, 124 (1975), the Supreme Court addressed “whether persons who are registered under the Controlled Substances Act . . . can be prosecuted under § 841 for dispensing or distributing controlled substances.” Reversing the court below, the Court unequivocally held “that registered physicians can be prosecuted under § 841 when their activities fall outside the course of professional practice.” Id. (emphasis added). This holding, however, never limited § 841 prosecutions to physicians who dispensed or distributed controlled substances without a legitimate medical purpose. Id. In fact, the Court further concluded that “[t]he evidence presented at trial was sufficient for the jury to find that [the defendant]'s conduct exceeded the bounds of ‘professional practice.'” Id. at 142 (emphasis added) (footnote omitted). In support of that conclusion, the Court listed the numerous ways in which the defendant's actions exceeded the bounds of professional practice and concluded, “[i]n practical effect, he acted as a large-scale ‘pusher' not as a physician.” Id. at 143. Put in its proper context, this statement is nothing more than dicta expressing an opinion, and in no way compels a standard of proof that the Government must prove Naum acted as a “drug pusher.”

         Relying on United States v. Goldstein, 695 F.2d 1228 (10th Cir. 1981), Naum next contends that, “[e]ven where there may be a statutory violation, a physician cannot be convicted for a violation of 21 U.S.C. § 841 if the prescriptions were issued for a legitimate medical purpose” (Dkt. No. 359 at 26). This is simply not so. Indeed, the United States Court of Appeals for the Tenth Circuit--the court that authored the Goldstein opinion--has concluded otherwise: “A practitioner has unlawfully distributed a controlled substance if she prescribes the substance either outside the usual course of medical practice or without a legitimate medical purpose.” Nelson, 383 F.3d at 1231-32 (emphasis added).

         This leads to the inescapable conclusion that, even absent evidence that Naum's prescriptions were issued without a legitimate medical purpose, the Government had only to prove that his actions were “beyond the bounds of medical practice.” Tran Trong Cuong, 18 F.3d at 1141; see also Singh, 54 F.3d at 1188 (“[A]lthough the testimony does not adduce compelling evidence that [the defendant] prescribed with malicious motive or the desire to make a profit, those motivations, though common in § 841(a)(1) prosecutions, are not required to convict.”). Because the Government needed only to prove Naum's actions were beyond the bounds of medical practice, any evidence of a legitimate medical purpose was irrelevant and therefore inadmissable. See Fed.R.Evid. 402 (“Irrelevant evidence is not admissible.”).

         “Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.” Fed.R.Evid. 401. Determining whether evidence is relevant is fundamentally a matter of trial management. United States v. Reed, 884 F.3d 230, 235 (4th Cir. 2018). Here, evidence of a legitimate medical purpose had no tendency to make the question whether Naum was acting outside the bounds of medical practice more or less probable. Fed.R.Evid. 401(a). Nor was it a fact of consequence for determining whether he exceeded the bounds of medical practice. Fed.R.Evid. 401(b).

         Consider, for example, a patient who has a legitimate medical need for suboxone because he is, in fact, suffering from opioid use disorder. A physician may still be convicted under § 841 for dispensing or distributing suboxone to this patient because--despite the patient's legitimate need--the physician performed an inadequate or cursory examination, if he performed one at all; never diagnosed the patient with opioid use disorder; did not perform an examination on return visits; ignored test results (e.g., inconsistent drug screens); took little or no precautions against misuse or diversion; did not regulate dosage; charged the patient based on the desired prescription without authorizing refills, requiring him to return and pay to obtain a new prescription; and issued prescriptions without establishing a bona fide doctor-patient relationship. In other words, despite the patient's legitimate need, the physician acted beyond the bounds of medical practice and violated § 841. The same holds true here. Thus, evidence of a legitimate medical purpose was irrelevant and therefore inadmissible under Federal Rule of Evidence Rule 402.

         Naum insists that, by excluding this evidence, the Court prevented him from putting on a defense. He further contends that the Court was biased for enforcing its pretrial rulings without objection from the ...


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