USCA4 Appeal: 19-4761 Doc: 173 Filed: 02/02/2024 Pg: 1 of 25
PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 19-4761
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOEL A. SMITHERS, a/k/a Joel A Smithers,
Defendant - Appellant.
Appeal from the United States District Court for the Western District of Virginia, at Abingdon. James P. Jones, Senior District Judge. (1:17-cr-00027-JPJ-PMS-1)
Submitted: October 27, 2023 Decided: February 2, 2024
Before GREGORY, RICHARDSON, and BENJAMIN, Circuit Judges.
Vacated and remanded by published opinion. Judge Gregory wrote the opinion, in which Judge Richardson and Judge Benjamin joined.
ARGUED: Beau B. Brindley, THE LAW OFFICES OF BEAU B. BRINDLEY, Chicago, Illinois, for Appellant. S. Cagle Juhan, OFFICE OF THE UNITED STATES ATTORNEY, Charlottesville, Virginia, for Appellee. ON BRIEF: Neal Lawrence Walters, SCOTT KRONER, PLC, Charlottesville, Virginia; Blair T. Westover, THE LAW OFFICES OF BEAU B. BRINDLEY, Chicago, Illinois, for Appellant. Daniel P. Bubar, Acting United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. USCA4 Appeal: 19-4761 Doc: 173 Filed: 02/02/2024 Pg: 2 of 25
GREGORY, Circuit Judge:
Joel Smithers, until this prosecution a doctor of osteopathy, was convicted on 861
counts, all related to his opioid-prescription practices. He was sentenced to a total of 480
months in prison. After his conviction, the Supreme Court in Ruan v. United States, 597
U.S. 450 (2022), clarified the mens rea required to convict someone of unauthorized
dispensing or distributing of a controlled substance. Because Ruan makes clear that
Smithers’ jury instructions misstated the law, and because the misstatements were not
harmless error, we vacate the convictions and remand to the district court for a new trial.
We do not reach Smithers’ Confrontation Clause, sufficiency-of-the-evidence, or
withdrawal-of-counsel challenges.
I.
On September 12, 2017, a grand jury indicted Joel Smithers on one count of
possession of a controlled substance with intent to distribute, in violation of 21 U.S.C.
§§ 841(a)(1) and (b)(1)(C). J.A. 101. Over the course of the next year, the government filed
two superseding indictments. The first added 715 counts: one count of maintaining a place
for the purpose of unlawful distribution, in violation of 21 U.S.C. § 856, and 714 counts of
unlawful dispensing and distributing of a controlled substance. J.A. 102–03. The second
superseding indictment added 146 counts of unlawful dispensing and distributing. J.A. 130–
31. The latter counts were charged under 21 U.S.C. § 841(a)(1), which (in addition to
criminalizing possession with intent to dispense or distribute) provides that, “[e]xcept as
authorized . . . , it [is] unlawful for any person knowingly or intentionally . . . to manufacture,
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distribute, or dispense . . . a controlled substance.” The statute does not define “authorized.”
Instead, Drug Enforcement Agency regulations define it: a prescription is only authorized
when “issued for a legitimate medical purpose by an individual practitioner acting in the
usual course of his professional practice.” 21 C.F.R. § 1306.04.
Because of the government’s superseding indictments, the district court granted
Defendant’s two motions to continue the trial and moved the trial to April 29, 2019. J.A.
157A. On March 18, 2019, defense counsel moved for a third continuance. J.A. 158. He
said the government had provided him with multiple CDs, containing over 4,000 pages of
discovery, just three days before, and that he did not have time to review the evidence
before trial. J.A. 158. On March 22, the magistrate judge held a hearing on the motion.
J.A. 161–92. The government said that a former AUSA had received the documents in
December 2018, but had retired soon after, and the documents likely “got lost in the
shuffle.” J.A. 171. According to the government, roughly half of the documents in the
CDs had been produced to the defendant earlier in the case. J.A. 193. The magistrate judge
denied Smithers’ motion to continue but ruled that the government would not be allowed
to use at trial any document or information it provided to defense counsel for the first time
on March 15, 2019. J.A. 194.
After one more motion to continue, one motion by defense counsel to withdraw, and
one motion for reconsideration of the denial of the motion to withdraw, J.A. 203, 212–13,
214, 215W, 215Z, 215AA—all of them unsuccessful and none of them material to the
disposition of this case—the trial began on April 29, 2019. J.A. 216–17.
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II.
A.
The government presented eighteen witnesses at trial. Two were expert witnesses,
eight were patients, and eight were miscellaneous lay witnesses (former employees, law
enforcement, state licensing agents, etc.). The witnesses testified to the following facts.
Many patients didn’t pay for their own prescriptions, appointments, or travel to Smithers’
office. J.A. 250–51, 293–94, 359–60, 389. Someone else did (usually a person named
Darryl Williams or a person named Rick Jessie), and in exchange, the patients gave half or
more of their pills to that person. J.A. 250–51, 359, 389. A number of Smithers’ patients
failed drug tests—they either tested positive for drugs they had not been prescribed or
tested negative for drugs they had been prescribed, an indication that they were diverting
those drugs for other purposes. J.A. 259, 450, 875, 879, 881–82, 883. Another patient
failed a pill count, showing up with fewer pills than she should have had, given how
frequently she was supposed to take them. J.A. 458. Despite those failed tests, Smithers
continued to see them and continued to prescribe drugs to them. J.A. 262, 452–54. One
of the patient witnesses had a prior conviction for selling prescription pills, but Smithers
never drug tested her. J.A. 361. Another patient had been charged with drug trafficking
and withholding information to obtain a controlled substance. J.A. 406. Smithers signed
a form indicating he was aware of those charges yet continued prescribing to her. J.A.
406–07. Smithers also knew that another patient had been on Suboxone, a drug-addiction
medication, in the past, but continued prescribing to her. J.A. 458.
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All of the patients who testified had to drive many hours to reach the office. See, e.g., J.A.
253 (six- to ten-hour round trip), 291–92 (eight- to ten-hour round trip). For one patient, it was a
twelve- to thirteen-hour round trip. J.A. 327. After making it to the office, they often had to drive
another hour or more to one of the few pharmacies that would fill their prescriptions. One patient
had to go to a pharmacy five to six hours away from her home. J.A. 409.
Occasionally, Smithers sent patients prescriptions via mail without requiring them to
come into the office. J.A. 256, 300, 399. But they still had to pay the full $300 office-visit fee.
J.A. 399. When patients did come into the office, they would sometimes wait for eight to twelve
hours. J.A. 541. Sometimes, Smithers wasn’t even there. J.A. 324. According to an office
employee, in a typical four-day week (the office was open only four days), Smithers was there
only one or two days. J.A. 547. Patients would meet with him via Facetime from the office, id.,
and they’d be given prescriptions from a pre-signed prescription pad. J.A. 532–33.
Smithers wrote prescriptions for one person, the ex-wife of Darryl Williams (one of
the men who paid for patients’ visits in exchange for pills), without ever seeing her. J.A.
342–47. Though the prescriptions were written in that woman’s name, she never received
them, J.A. 344, 347; they were instead sent to Williams’ house.
At trial, the government introduced hundreds of pages of texts between Williams
and Smithers. See J.A. 2099–2423. Williams, who was not employed by the clinic,
essentially acted as Smithers’ unofficial assistant. Id. He booked appointments for
patients, coordinated carpools for them, ensured patients showed up for their appointments,
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told Smithers when patients were coming, followed up with no-shows, and paid upfront
for patients who didn’t do so themselves. Id. 1
At some point, Smithers became concerned that he couldn’t trust Williams anymore.
The government introduced three Post-It notes that it said came from a search of Smithers’
office. J.A. 564–66. One of them read: “Is Darryl Williams wearing a wire?” Id. The
others read: “For suspected wires: WO verification of your issues, I cannot help you,” and
“DEA?”. Id. A receptionist at Smithers’ clinic testified that he’d never seen the notes but
recognized Smithers’ handwriting. J.A. 563.
One of the government’s expert witnesses, Dr. Deeni Bassam, a board-certified
physician in pain medicine and management, testified that he was struck by how scant
Smithers’ medical files were. J.A. 834. Bassam said the pain questionnaires in patients’ files
captured only self-reported symptoms and were therefore insufficient to reach a diagnosis and
recommend an appropriate treatment plan. J.A. 840. Bassam also said that the prescribed doses
were high. J.A. 845–46. He noted that pain inventory forms were frequently left blank. J.A.
853. In one case, Smithers only asked for the patient’s full treatment record eight months into
prescribing the patient high doses of narcotics. J.A. 853–54.
Bassam testified in depth about two patients. But after the government finished its
questioning regarding the second patient, the district court nudged the lawyer to move
things along. J.A. 873. “[L]et me just discuss with you a little bit about how we’re going
1 Williams told Smithers that Williams was fronting the money, i.e., that the patients would pay him back. But based on patients’ testimony, Williams may never have intended for certain patients—those whose pills he was taking a cut of—to pay him back. 6 USCA4 Appeal: 19-4761 Doc: 173 Filed: 02/02/2024 Pg: 7 of 25
about this. We’ve got 2 of 50.” Id. The lawyer took the hint. “I don’t intend to go at the
same pace with the other ones,” he said. “I thought it was important to show what’s in these
files. Then I intended to ask him: During your review of the other files, would you find
similar things or those characteristic of that? Then I intended to point out certain things in
those other files.” Id. The court approved that plan. Id.
The government made good on its word, speeding through the files of 22 patients in
70 minutes. J.A. 873, 910 (court resumed at 10:57 and recessed at 12:07). At the end of the
direct examination, the government asked Bassam, “Just in recap . . . you reviewed every
one of those prescriptions and in your opinion every one of those was issued outside the
scope of professional practice and not for legitimate medical purpose [sic]; is that correct?”
J.A. 910. Bassam said yes. Id. But this wasn’t exactly true. Though he said he’d reviewed
the files of all the patients whose prescriptions had been charged as unlawful prescribing (50
patients in total), J.A. 836–37, he later said he’d reviewed almost all 50, J.A. 836.
The government’s other expert, Dr. Stacey Hail, testified about the cause of death
of one of Smithers’ patients, Heather Hartshorn. J.A. 767–820. Counts 298 and 299
charged Smithers with unlawful distribution of Oxycodone and Oxymorphone to
Hartshorn. J.A. 1274. Hartshorn died two days after filling those prescriptions. J.A. 792,
979. On the jury verdict form, the jury was instructed that if they found Smithers guilty on
Counts 298 and 299, they then had to decide whether those prescriptions resulted in
Hartshorn’s death. J.A. 1299. The jury found that they did. Id.
Hail testified that based on her expertise, as well as a review of Heather Hartshorn’s
medical file and autopsy report, the medical examiner’s toxicology report, the police report, and
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the Prescription Monitoring Program database, Hartshorn would not have died but for the
prescriptions Smithers wrote her. J.A. 795–97. The authors of the documents did not testify.
On cross-examination, Hail provided details from the toxicology report and the
medical records. J.A. 797–804. She said the toxicology report showed that Hartshorn had
other drugs—not prescribed by Smithers—in her system at the time of her death. J.A. 799–
803. Those drugs are contraindicated with opioids, she said. Id. She also said that
Hartshorn’s medical file showed she’d reported suicidal ideation to her mother shortly
before she died. J.A. 804.
At the close of the government’s case, the defense made an oral motion for a
judgment of acquittal for insufficient evidence. J.A. 927–28. The court took the motion
under advisement as to Count 1 (possession with intent to distribute) and denied the motion
as to the other counts. J.A. 935–36.
B.
The defense presented four witnesses—two patients, one pharmacist, and Smithers
himself. Brenda Fisher, one of his patients, testified that she suffered from degenerative
bone disease, a bulging disk in her back, and a right knee that needed to be replaced. J.A.
942. At the time she saw Smithers, doctors would not conduct knee surgery because she
was on cancer medicine. Id. She lost the use of her legs when she was in a car accident at
17 and has suffered from back pain since. Id. When she first saw Smithers, he spent more
than two hours with her, conducting a physical examination, taking vitals, and discussing
her symptoms. J.A. 941. Throughout his care of Fisher, Smithers spoke to her about
alternatives to medication, including probiotics, acupuncture, yoga, and more physical
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activity. J.A. 966–67. When Smithers first started seeing Fisher, he told her he would
continue prescribing her Roxicodone/Oxycodone 30 mgs for a couple months but wanted
to wean her off them because he thought they were too strong. J.A. 943. Though he
decreased the dosage to 20 mgs, he never took her off them altogether. J.A. 947.
Another Smithers patient, Lennie Hartshorn (Heather Hartshorn’s father), had “disks
messed up” in his neck and back, had had four disks fused, his right hip replaced, and his right
knee replaced. J.A. 972. He’d worked 24 years in a coal mine, where he’d had multiple
accidents. J.A. 973. Smithers talked with him about alternative treatments, like physical
therapy and surgeries. J.A. 979. But Hartshorn was trying to avoid surgery—he’d had surgeries
in the past that didn’t go well. Id.
Hartshorn said the medication Smithers prescribed made his pain tolerable. Instead
of simply lying in a recliner, unable to get out of it, he was able to “do a few things on the
farm, be able to enjoy life some.” J.A. 976. He owned a convenience store, and the
medication allowed him to “tinker around in that.” Id.
Finally, Smithers testified in his own defense. Smithers operated two pain clinics
in West Virginia before opening up the one at issue here, located in Martinsville, Virginia.
J.A. 1208, 1213, 1216. Both of those clinics had been shut down by authorities or
preemptively shut down by Smithers once authorities came to inspect. J.A. 1216–21.
When Smithers opened his Virginia clinic, some of his West Virginia patients followed
him. They told him that they were facing a six-month to one-year wait list to see a chronic-
pain doctor or a primary-care doctor who would treat chronic pain. J.A. 1058. Smithers
referred to these people as “chronic pain refugees.” J.A. 1166.
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Smithers offered an explanation for every suspicious behavior—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 with Darryl Williams, why he FedExed prescriptions to patients,
and why he had a pre-signed prescription pad in the office. He also testified about
individual patients. J.A. 1096–1129. He said he believed that the prescriptions he’d
written for each patient were for a legitimate medical purpose. J.A. 1150.
At the end of the defense’s case, Smithers renewed his motion for a judgment of
acquittal. J.A. 1260A. The court again took it under advisement for count one and denied
it as to the other counts. Id.
III.
Before closing arguments, the court and parties discussed jury instructions. The
parties’ disagreement focused on the third element of the unlawful-prescribing counts, which
defines “unauthorized.” J.A. 993–95. The government asked that the element be phrased in
the disjunctive: prescribed “without a legitimate medical purpose or beyond the bounds of
medical practice.” J.A. 993. Smithers asked for conjunctive phrasing: “without a legitimate
medical purpose and beyond the bounds of medical practice.” J.A. 994. The court adopted
the government’s disjunctive phrasing. J.A. 993, 1260S, 1260X, 1260Z.
The jury convicted Smithers on all counts. Smithers filed a written motion for
acquittal or, in the alternative, a new trial. J.A. 1300. In a written opinion, the district court
granted the motion for acquittal as to the possession-with-intent-to-distribute count and
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denied it on all other counts. J.A. 1304. The court sentenced Smithers to 240 months for
maintaining a place for the purpose of unlawfully distributing controlled substances, as well
as 240 months on 855 of the 857 unlawful dispensing or distributing counts, to run
concurrently. JA 1320YYY. On the two unlawful dispensing or distributing counts that the
jury found resulted in Heather Hartshorn’s death, the court sentenced Smithers to 480
months, to run concurrent with the 240 months. J.A. 1320YYY. 2
In 2020, Smithers appealed the district court’s denial in part. He argued that the
jury instructions misstated the law and the error was not harmless, there was insufficient
evidence to convict him, Hail’s testimony violated his Confrontation Clause rights, and the
district court abused its discretion in denying Smithers’ motion for leave for counsel to
withdraw. In October 2021, oral argument was calendared for December. But in early
November, the Supreme Court granted certiorari in Kahn v. United States, No. 21-5261.
Kahn asked whether jury instructions that presented the unlawful-dispensing charge in the
disjunctive (“acted without a legitimate medical purpose or beyond the bounds of medical
practice” (emphasis added)), as opposed to the conjunctive, were proper. On the
government’s recommendation, and despite Smithers’ opposition, we placed this case in
abeyance until Kahn was decided.
2 The Probation Office’s draft presentence investigation report did not calculate the statutory or Guidelines range for a conviction on unlawful dispensing or distribution resulting in death, so the report landed on a guideline range of 360 months to life, with no mandatory minimum. J.A. 2875. In fact, as the corrected PSR noted, there is a 20-year mandatory minimum for unlawful dispensing/distributing of schedule I or II controlled substances that results in death. J.A. 2922 (citing 21 U.S.C. § 841(b)(1)(C)). Including those counts in the calculation leads to a Guidelines recommendation of life. J.A. 2922. 11 USCA4 Appeal: 19-4761 Doc: 173 Filed: 02/02/2024 Pg: 12 of 25
Kahn was decided under the consolidated case name Ruan v. United States, 597
U.S. 450 (2022). Ruan did not directly address the disjunctive versus conjunctive issue. It
addressed the mens rea required for unlawful distribution of a controlled substance. As
explained above, under 21 U.S.C. § 841(a)(1), “[e]xcept as authorized . . . , it [is] unlawful
for any person knowingly or intentionally . . . to manufacture, distribute, or dispense . . . a
controlled substance.” A prescription is only authorized when issued “for a legitimate
medical purpose by an individual practitioner acting in the usual course of his professional
practice.” 21 C.F.R. § 1306.04. Ruan held that the statute’s “knowingly or intentionally”
mens rea applies to “except as authorized.” Ruan, 597 U.S. at 454–55. After Ruan was
decided, this Court requested supplemental briefing from the parties on whether and how
Ruan affected the case.
IV.
We review de novo whether jury instructions incorrectly stated the law. United
States v. Washington, 743 F.3d 938, 941 (4th Cir. 2014). If they did, we decide under
either harmless error or plain error whether the conviction must be set aside. United States
v. Said, 26 F.4th 653, 660 (4th Cir. 2022). A preserved objection is analyzed under
harmless error; a waived or forfeited objection is analyzed under plain error. Id.
Smithers initially challenged the jury instructions for being improperly phrased in
the disjunctive. After this Court asked for supplemental briefing post-Ruan, he also argued
(more directly, at least) that the instructions improperly stated an objective mens rea
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standard. The parties disagree about whether Smithers waived his mens rea argument, so
necessarily disagree about the appropriate standard. We begin with waiver. We then
discuss whether the jury instructions, as a whole, misstated the law. Finally, we discuss
whether any error in the instructions was harmless.
We begin with the waiver issue. The government first argues that Smithers waived
his argument that the jury instructions improperly stated an objective mens rea requirement
because he “failed to alert the district court to the supposed scienter error at the most
obvious time to do so—in formulating the elements.” Supp. Resp. Br. at 38. According to
the government, because Smithers challenged “only the good-faith instruction below [and]
not the formulation of the elements,” he waived the issue. Id. But the good-faith
instruction simply provided a more detailed explanation of the meaning of the third
element. Indeed, the unlawful-distribution elements and the good-faith explanation came
in the same instruction, Instruction No. 20. And in any event, the crux of Smithers’
good-faith objection was that the instruction allowed the jury to convict based solely on an
objective mens rea. J.A. 9579–80 (“for the Court to instruct that this is an objective and
not a subjective test goes to the mens rea element of it”). This is the very scienter argument
the government now says Smithers didn’t make below. Smithers therefore preserved his
arguments in the district court.
The government says Smithers nevertheless still waived his scienter argument by
not raising it in his opening brief before this Court. Supp. Resp. Br. at 18. This
misunderstands the relationship between § 841’s scienter requirement and whether § 841
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is phrased disjunctively or conjunctively. By raising the disjunctive/conjunctive issue in
his opening brief to this Court, Smithers necessarily raised the scienter argument.
Again, a prescription is authorized only if it is “issued for a legitimate medical
purpose by an individual practitioner acting in the usual course of his professional
practice.” 21 C.F.R. § 1306.04. The district court instructed that Smithers could be
convicted if he issued a prescription that was not for a legitimate medical purpose or acted
beyond the bounds of medical practice in issuing the prescription. J.A. 1260X, Z.
As Smithers notes, acting without a legitimate “medical purpose” incorporates some
subjective mens rea (whether it rises to the level of knowledge is another question). But
acting outside the “bounds of medical practice” is a purely objective standard. Supp.
Opening Br. at 8. Because the instructions were phrased in the disjunctive, they allowed
the jury to convict solely based on a finding that Smithers acted outside the bounds of
medical practice. That is, the jury was allowed to conclude that by acting outside the
bounds of medical practice, Smithers acted in an unauthorized manner. Smithers’
argument in his original opening brief that the instruction should have been phrased
conjunctively was an attempt to import the subjective mens rea from “legitimate medical
purpose” into “acting outside the bounds of medical practice,” and thus keep the jury from
convicting based only on an objective standard. True, Smithers didn’t need conjunctive
phrasing to add a subjective mens rea. He could have instead argued for an instruction that
read, “knowingly acting without a legitimate medical purpose or knowingly acting outside
the bounds of professional practice.” But he didn’t. And the fact that he could have
disentangled the objective-test argument from the conjunctive-phrasing argument doesn’t
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mean that the issues are distinct enough for us to find that he waived one. Asking the court
for conjunctive phrasing, then, was the same as asking for an intent requirement, and
Smithers didn’t waive the scienter issue.
Even if Smithers had not appealed the scienter issue, though, he wouldn’t be
precluded from presenting it in supplemental briefing. When Smithers filed his opening
brief, it would have been futile for him to argue for a subjective standard. In United States
v. Hurwitz, 459 F.3d 463 (4th Cir. 2006), this Court said that whether a practitioner has
acted without a legitimate medical purpose or outside the bounds of professional conduct
is judged objectively. There, the district court used a good-faith instruction to help the jury
decide whether the defendant acted outside the bounds of professional conduct. Id. at 476–
78. The defendant proposed instructions stating that “good faith” is a subjective standard.
Id. at 478. The district court rejected the instructions, and this Court affirmed. We said
that “good faith” is an objective standard as applied to “acting outside the bounds of
accepted medical practice.” Id. at 479–81. In other words, “acting outside the bounds of
accepted medical practice” is judged objectively. See id. We based that conclusion on
United States v. Moore, 423 U.S. 122 (1975), which, we said, “strongly suggest[ed] the
inquiry [under § 841, for prosecutions of medical practitioners] is an objective one.”
Hurwitz, 459 F.3d at 478.
Despite Hurwitz, Smithers objected at trial to the district court’s good-faith instruction.
S.A. 9579–80. The district court overruled Smithers’ objection. S.A. 9580. Smithers did not
appeal that specific issue. (Though, as explained above, by appealing the
disjunctive/conjunctive issue, he necessarily appealed the mens rea issue.) But that’s of no
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consequence to him. “[W]hen an intervening decision of this Court or the Supreme Court
affects precedent relevant to a case pending on direct appeal, an appellant may timely raise a
new argument, case theory, or claim based on that decision while his appeal is pending
without triggering the abandonment rule.” United States v. White, 836 F.3d 437, 443–44 (4th
Cir. 2016), abrogated on other grounds by United States v. Stitt, 586 U.S. ----, ----, 139 S. Ct.
399, 404 (2018); see also Joseph v. United States, 574 U.S. 1038 (2014), respecting denial of
certiorari (Kagan, J.) (noting that every circuit but the Eleventh [which has since changed its
rule] says an appellant preserves an issue, despite not presenting it in his opening brief, when
change in precedent makes the previously foreclosed argument available); id. (citing United
States v. Musleh, 106 F. App’x 850, n.4 (2004)).
The government doesn’t cite any of these cases and instead relies on an inapposite
case. In United States v. Boyd, the defendant objected in the district court to a career-
offender enhancement. 55 F.4th 272, 275 (4th Cir. 2022). He argued at sentencing that
because the predicate offense of assault with intent to kill required only a recklessness mens
rea, it was not a crime of violence. Id. And in fact, the Fourth Circuit had held nine months
before Boyd’s sentencing that a recklessness mens rea is insufficient to establish a crime
of violence. Compare United States v. Middleton, 883 F.3d 485, 497 (4th Cir. 2018)
(published Feb. 26, 2018), with 3:16-cr-00251-TLW-1, Dkt. 84 (sentencing hearing held
on Nov. 13, 2018). Despite that, the district court overruled Boyd’s career-offender
objection. Boyd, 55 F.4th at 275–76. Boyd appealed the district court’s sentence, but on
other grounds. After he filed his opening brief, the Supreme Court held that, as the Fourth
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Circuit had previously stated, a recklessness mens rea isn’t enough for a crime of violence.
United States v. Borden, 593 U.S. ----, ----, 141 S. Ct. 1817, 1821–22 (2021).
This Court held that he waived his argument because the Supreme Court’s ruling
affirmed Fourth Circuit caselaw that was available to Boyd when he filed his opening brief.
Boyd, 55 F. 4th at 279–80. That is not the case here. Because the objective mens rea argument
was unavailable to Smithers when he filed his opening brief, he did not waive the issue.
C.
That brings us to whether the instructions misstated the law post-Ruan. We hold
that they did and that other jury instructions did not cure the error.
Smithers objected to Instructions 15, 19, and 20, all of which use the phrase “without
a legitimate medical purpose or beyond the bounds of medical practice.” 1260S, X, Z–BB.
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”). 3
Smithers says 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 government argues that even if the instruction that Smithers challenges
misstated the law, three other instructions corrected the error: the willful-blindness
3 Instruction No. 20 also contains the good-faith instruction that the government says cures any error in the other instructions. 17 USCA4 Appeal: 19-4761 Doc: 173 Filed: 02/02/2024 Pg: 18 of 25
instruction in No. 24, the aiding-and-abetting instruction in No. 23, and the good-faith
instruction in No. 20. Supp. Resp. Br. at 22–32.
We address each of those instructions in turn, recognizing that jury instructions are
evaluated holistically and reviewed for abuse of discretion. Burgess v. Goldstein, 997 F.3d
541, 557 (4th Cir. 2021). The key issue is “whether the instructions construed as a whole,
and in light of the whole record, adequately informed the jury of the controlling legal
principles without misleading or confusing the jury to the prejudice of the objecting party.”
Noel v. Artson, 641 F.3d 580, 586 (4th Cir. 2011).
We begin with the willful-blindness instruction, No. 24. It read:
You may find that the defendant acted knowingly if you find beyond a reasonable doubt that the defendant believed there was a high probability that patients were abusing the drugs prescribed and that he took deliberate actions to avoid learning of that fact. Knowledge may be inferred if the defendant deliberately closed his eyes to what would otherwise have been obvious to him. A willfully blind defendant is one who takes deliberate actions to avoid confirming a high probability of wrongdoing and who can almost be said to have actually known the critical facts. You may not find the defendant acted “knowingly” if you find he was merely careless or mistaken as to those facts.
J.A. 1260GG.
The government argues that this 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.” Supp. Resp. Br. at 23. This argument would only work
if Instruction No. 20 (explaining the meaning of “without a legitimate medical purpose or
beyond the bounds of medical practice”) required a finding that Smithers knowingly acted
18 USCA4 Appeal: 19-4761 Doc: 173 Filed: 02/02/2024 Pg: 19 of 25
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. But
Instruction No. 20 didn’t require any knowledge to begin with, so instructing the jury that
they could find knowledge from willful blindness wasn’t relevant to them finding that
Smithers acted outside the course of professional practice.
The aiding-and-abetting instructions informed the jury that they could convict
Smithers if the government proved that he “knowingly and deliberately associated himself in
some way with the crime charged and participated in it with the intent to commit the crime.”
J.A. 1260EE. The instructions also said that the government had to prove the defendant:
(1) Knew that the crimes charged were to be committed or were being committed, (2) Knowingly did some act for the purpose of aiding or encouraging the commission of that crime, and (3) Acted with the intention of causing the crimes charged to be committed.
J.A. 1260EE.
The government argues that the knowing standard in these instructions makes up
for any error elsewhere. Supp. Resp. Br. at 13–16. This argument assumes that the jury
convicted Smithers as an aider and abettor, as opposed to a principal. If they convicted
him as a principal, nothing from the aiding-and-abetting instructions could have cured that
verdict. And in fact, it is much more likely that the jury convicted him as a principal.
Nothing in the government’s case or opening or closing arguments suggested aiding-and-
19 USCA4 Appeal: 19-4761 Doc: 173 Filed: 02/02/2024 Pg: 20 of 25
abetting liability. Smithers was presented as the ring master of the whole operation. The
aiding-and-abetting instructions cannot cure the fundamental mens rea error.
Nor can the good-faith instruction. That instruction read:
A doctor’s good faith in medically treating a patient is relevant in determining whether the doctor has dispensed a drug for a legitimate medical purpose in the usual course of medical practice. The burden of proof is not on the defendant to prove his good faith, of course, since he has no burden to prove anything. “Good faith” means that the physician acted with good intentions in the honest belief that he was attempting to act in accord with the standards of medical practice generally recognized and accepted in the medical profession. This is an objective test, and not a subjective one. In other words, a physician cannot substitute his own views of what is good medical practice in place of generally accepted norms simply because he believes it proper. If you find that the defendant acted in good faith as I have defined it in prescribing the drugs charged in this case, then you must find the defendant not guilty.
J.A. 1260Z–BB.
The idea that this instruction made up for other deficiencies is a nonstarter. The
district court in Ruan also gave “good faith” instructions, and the Supreme Court explicitly
rejected reliance on that standard. 597 U.S. at 456, 465–66. 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.”
Id. at 465.
The government argues that the admittedly “inapt” “objective” reference was
simply supposed to convey that generally accepted medical standards don’t change
depending on what a defendant believes them to be. Supp. Resp. Br. at 29–31. That is true
20 USCA4 Appeal: 19-4761 Doc: 173 Filed: 02/02/2024 Pg: 21 of 25
as a matter of law, see Ruan, 597 U.S. at 467, but it’s not a fair characterization of what
the instructions said. “This is an objective test” clearly referred to the entirety of the
preceding sentence, which defined “good faith.” In other words: “[good faith] is an
objective test.” That instruction directly contravenes Ruan; far from helping the
government, it proves Defendant’s point.
Finally, at oral argument, the government argued that the conviction on Count 2
could stand by itself even if the convictions on all other counts were vacated. Oral Arg. at
3:15:50–3:16:30; 3:28:22–3:29:30. Count 2 charged Smithers with knowingly and
intentionally maintaining a place for the purpose of unlawfully distributing controlled
substances. J.A. 102. According to the government, “for the purpose of” provides at least
a knowing mens rea, so the Ruan problem in the jury instructions for Counts 3–862 4 is not
present in the Count 2 instruction. Under the government’s argument, the Count 2
instruction effectively told the jury that convicting on that count required the government
to prove that Smithers “knowingly and intentionally maintained the stated premises for the
purpose of . . . distributing controlled substances [without a legitimate medical purpose or
beyond the bounds of medical practice].”
4 Because the government moved to dismiss Count 101 before trial, J.A. 215LL– MM, the unlawful-distribution counts are actually Counts 3–100 and 102–862. For simplicity’s sake, we refer to them as Counts 3–862 throughout this discussion.
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Even if this iteration of the instruction, read in isolation, were an accurate statement
of the law, it would not allow the Count 2 conviction to stand by itself. 5 That’s because
jury instructions are not evaluated in “isolated segments,” but instead analyzed “as a
whole.” United States v. Cropp, 127 F.3d 354, 360 (4th Cir. 1997); see also United States
v. Morrison, 991 F.2d 112, 116 (4th Cir. 1993); United States v. Muse, 83 F.3d 672, 677
(4th Cir. 1996). “[A] judgment of conviction is commonly the culmination of a trial which
includes testimony of witnesses, argument of counsel, receipt of exhibits in evidence, and
instruction of the jury by the judge. Thus not only is the challenged instruction but one of
many such instructions, but the process of instruction itself is but one of several
components of the trial which may result in the judgment of conviction.” Cupp v.
Naughten, 414 U.S. 141, 147 (1973).
Reading Count 2 in conjunction with the 859 unlawful-distribution counts, we find
it impossible to believe that the jury interpreted Count 2 as requiring a subjective mens rea
while simultaneously and correctly interpreting the 859 predicates 6 of Count 2 as requiring
only an objective mens rea. The most obvious explanation, rooted in the understanding
that juries read instructions as a whole, is that once the jury convicted Smithers on the
5 We do not reach whether this instruction by itself is an accurate statement of the law because doing so would require us to decide whether it was proper to phrase the instructions in the disjunctive. Although Smithers raised that issue in his pre-Ruan briefing—and, in doing so, raised the scienter issue that Ruan ultimately addressed—the totality-of-the-instructions doctrine is enough to resolve this case. 6 We understand that the unlawful-distribution counts were not actual predicates. But the government’s theory of Count 2 was that Smithers maintained the clinic for the purpose of committing Counts 3–862. 22 USCA4 Appeal: 19-4761 Doc: 173 Filed: 02/02/2024 Pg: 23 of 25
unlawful-distribution counts, a conviction on the maintaining-a-place count was inevitable.
So if the jury convicted Smithers solely for acting outside the bounds of professional
conduct, it didn’t matter that Count 2 required a higher mens rea. Four words (“for the
purpose of”) cannot sustain the Count 2 conviction when that conviction was based on an
avalanche of counts on which the jury was improperly instructed. The Count 2 jury
instructions, read in conjunction with the other instructions, were improper.
D.
We next decide whether the error in the instructions was harmless. To determine
whether jury-instruction errors that were contested below were harmless, we ask whether
the “record contains evidence that could rationally lead to a contrary finding with respect
to that omitted element.” Brown, 202 F.3d at 701 (quoting Neder v. United States, 527
U.S. 1, 19 (1999)). If “there is evidence upon which a jury could have reached a contrary
finding, the error is not harmless . . . because . . . we cannot determine beyond a reasonable
doubt that the ‘jury verdict would have been the same absent the error.’” Id. (quoting
Neder, 527 U.S. at 19).
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
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guilt does not necessarily make an instructional error harmless. See Connecticut v. Johnson,
460 U.S. 73, 83 (1983) (discussing Carpenters & Joiners v. United States, 330 U.S. 395
(1947)). 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.
At oral argument, the government also argued that the conviction on Count 2 makes
the jury-instruction error in Counts 3–862 harmless. Oral Arg. at 3:15:14–3:16:44;
3:17:12–3:18:59. When the jury convicted Smithers on Count 2, it found that he
maintained a place for the purpose of unlawful distribution. Therefore, the government
says, the jury necessarily found on Counts 3–862 that Smithers purposefully unlawfully
distributed. And if they had been properly instructed on those counts, we know that they
would still have convicted Smithers on them.
This argument assumes that the Count 2 instructions were proper in isolation, an
issue we don’t reach. See supra, at n.5. But even if that assumption were correct, the
government’s argument would be unconvincing. Contrary to what the government says,
this is not an example of a necessary finding of harmlessness. Supp Resp. Br. at 39–40
(citing, e.g., United States v. Collins, 982 F.3d 236 (4th Cir. 2020)). While one could
conclude that a conviction on a properly instructed Count 2 meant the jury found
purposeful intent on at least one of the unlawful-distribution charges, we have no way of
knowing which. Maybe it was all 859 of the charges, but maybe not. Maybe it was the
prescriptions for some patients and not others. And even then, we cannot know which
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prescriptions—all fifty patients had multiple prescriptions, and each were charged
separately. These wouldn’t be necessary findings of harmlessness; they would be
speculative. The standard for a finding of harmlessness is higher than that.
In sum, because there was evidence upon which a jury could have reached a contrary
finding, the instructional errors were not harmless.
Because the jury was improperly instructed and the instructions were not harmless,
we vacate the convictions and remand to the district court for proceedings consistent with
this opinion.
VACATED AND REMANDED