U.S. v. Smurthwaite, 77-1615

• Citation: 590 F.2d 889
• Decision Date: 25 January 1979
• Docket Number: No. 77-1615,77-1615
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alfred Tennyson SMURTHWAITE, Jr., Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 889

590 F.2d 889

UNITED STATES of America, Plaintiff-Appellee, v. Alfred Tennyson SMURTHWAITE, Jr., Defendant-Appellant.

No. 77-1615.

United States Court of Appeals Tenth Circuit.

Submitted May 4, 1978.

Decided Jan. 25, 1979.

Sumner J. Hatch, Salt Lake City, Utah, for defendant-appellant.

Ronald L. Rencher, U. S. Atty. and Steven W. Snarr, Asst. U. S. Atty., Salt Lake City, Utah, for plaintiff-appellee.

Before DOYLE, McKAY and LOGAN, Circuit Judges.

LOGAN, Circuit Judge.

Alfred Tennyson Smurthwaite, Jr., was convicted by a jury on eleven counts of illegally dispensing and distributing controlled substances in violation of 21 U.S.C. §§ 841(a)(1) and 18 U.S.C. § 2. On appeal, he claims there was a lack of evidence on the general course of practice of a naturopathic physician, which requires a judgment of acquittal. He also argues that the jury's finding him innocent on one count of the indictment, but guilty on the others, shows confusion concerning the court's instructions or a lack of evidence to support the verdicts.

Smurthwaite is a naturopathic physician practicing in Salt Lake City. He was charged with the illegal dispensation and distribution of amphetamine drugs (Diphylet, Preludin and Ionamin) in the various counts of the indictment. The government's evidence consisted principally of testimony of four undercover narcotics officers working either for the federal government or local law enforcement agencies, who procured prescriptions for these drugs from defendant Smurthwaite during visits to his office.

The testimony of each agent was substantially similar. He first went to the doctor's office with another person who had been there before, generally one of the other agents. Upon being introduced to Smurthwaite he immediately asked for a prescription for amphetamines. After having him fill out a patient's card, but with no physical examination, no questions asked about health, medical history or the like, Smurthwaite would write a prescription, charging $7 for each one written. On a second or subsequent visit, Smurthwaite would check the patient's card to see if 30 days had elapsed (the prescriptions apparently were for 30 tablets, and provided one tablet per day dosage). If 30 days had not elapsed he would refuse to renew that prescription, but would write one for a different drug on the controlled substance list, usually Ionamin, or would write one for the patient's absent purported wife, provided the 30-day period had run on her prior prescription. These office visits lasted a very short time, some less than five minutes. The agents testified that on two occasions Smurthwaite indicated that he knew the purchasers were using the pills for parties and not for weight control.

Undercover officers testified that while they had indicated "too fat" or something similar on the patient's cards with respect to their ostensible need for the prescriptions, they did not put their weights down on the cards. Dr. Smurthwaite himself put figures on some of the cards that overstated their weights by a considerable amount. One of the officers who obtained a prescription was a relatively thin person, and the defendant wrote him one prescription but told him not to come back, because he was too thin.

In the prosecution's case-in-chief, no evidence was introduced about the usual course of the practice of a naturopathic physician. Alleging such evidence was required, defense counsel moved for acquittal at the end of the state's case. The court deferred ruling on the motion, and eventually denied it after the completion of the trial.

The only defense evidence was Dr. Smurthwaite's testimony. He testified that he was prescribing the drugs for weight reduction and the doses given were normal. He denied telling the undercover narcotics officers he knew the pills were being used for parties. He testified that his practices were normal for a weight control prescription practice, and that he had asked certain questions concerning allergies and the like which gave him sufficient medical history without the need for a physical examination.

After the defense rested the government presented another naturopathic physician as a rebuttal witness, who testified about the usual medical procedures followed by members of his profession. He stated it was not the usual practice to prescribe drugs to a patient without conducting a physical examination, obtaining a written medical history, inquiring about symptoms and complaints. It was not the usual practice to prescribe a specific drug asked for by the patient nor to prescribe drugs for use at parties. He admitted his practice was not as a weight control specialist, and he personally prescribed weight control drugs only when his patients had other physical problems.

I

In determining whether a motion for acquittal was improperly denied we must consider the evidence in the light most favorable to the government, and the verdict will not be set aside if supported by substantial evidence. Speers v. United States, 387 F.2d 698 (10th Cir.), Cert. denied, 391 U.S. 934, 88 S.Ct. 1844, 20 L.Ed.2d 853 (1967).

The indictment charged that defendant's acts were "outside the usual course of professional practice," and 21 C.F.R. § 1306.04(a) exempts from the prohibitions of 21 U.S.C. § 841(a)(1) prescriptions by a medical practitioner "in the usual course of his professional practice." Since defendant is a naturopathic physician licensed under Utah law and authorized to write prescriptions, the claim is made that defendant's motion for acquittal should have been granted for failure of the government to show what was the usual course of practice for such a physician.

There was evidence, summarized above, by a naturopathic physician brought in by the government as a rebuttal witness, after the government had presented its case-in-chief. In many cases in this circuit the government has been permitted to...