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,

(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

(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

, 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

(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.”

.

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,

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.

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.

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?”

The

others read: “For suspected wires: WO verification of your issues, I cannot help you,” and

“DEA?”.

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.”

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.”

The court approved that plan.

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.

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.

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.

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.

She lost the use of her legs when she was in a car accident at

17 and has suffered from back pain since.

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.

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.”

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.

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

(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,

(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

(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.”

. 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.

A.

We review de novo whether jury instructions incorrectly stated the law. United

States v. Washington,

(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,

(4th Cir. 2022). A preserved objection is analyzed under

harmless error; a waived or forfeited objection is analyzed under plain error.

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.

B.

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.

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.”

. 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,

(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.

at 476–

78. The defendant proposed instructions stating that “good faith” is a subjective standard.

. 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.”

at 479–81. In other words, “acting outside the bounds of

accepted medical practice” is judged objectively. See

We based that conclusion on

United States v. Moore,

(1975), which, we said, “strongly suggest[ed] the

inquiry [under § 841, for prosecutions of medical practitioners] is an objective one.”

Hurwitz,

.

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,

, 443–44 (4th

Cir. 2016), abrogated on other grounds by United States v. Stitt, 586 U.S. ----, ----,

(2018); see also Joseph v. United States,

(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);

(citing United

States v. Musleh,

(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.

(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.

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,

(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. ----, ----,

, 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,

(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,

(4th Cir. 2011).

i.

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

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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.

ii.

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-

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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.

iii.

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.

, 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.”

.

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

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as a matter of law, see Ruan,

, 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.

iv.

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.

21 USCA4 Appeal: 19-4761 Doc: 173 Filed: 02/02/2024 Pg: 22 of 25

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,

(4th Cir. 1997); see also United States

v. Morrison,

(4th Cir. 1993); United States v. Muse,

(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,

(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,

(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.’”

(quoting

Neder,

).

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,

(1983) (discussing Carpenters & Joiners v. United States,

(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,

(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.

V.

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

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