U.S. v. Smurthwaite, No. 77-1615

CourtU.S. Court of Appeals — Tenth Circuit
Writing for the CourtBefore DOYLE, McKAY and LOGAN; LOGAN
Citation590 F.2d 889
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Alfred Tennyson SMURTHWAITE, Jr., Defendant-Appellant.
Docket NumberNo. 77-1615
Decision Date25 January 1979

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.

Page 890

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

Page 891

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...

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19 practice notes
  • U.S. v. Armstrong, No. 07-30286.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • November 21, 2008
    ...and legitimate medical purposes may help a jury, it was not necessary on the facts of the case on appeal); United States v. Smurthwaite, 590 F.2d 889, 892 (10th Cir.1979) (finding expert testimony unnecessary to prove prescriptions were outside of professional practice where evidence includ......
  • Thomas v. Resort Health Related Facility, No. 81 C 229.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • May 26, 1982
    ...demanded in the victim's lawsuit. The tenth circuit seems to have so held in Comacho v. Colorado Electronic Technical College, supra, 590 F.2d at 889, in affirming the trial court's decision to award 56 months' back pay to the plaintiff instead of the 18 months' award the defendants had cal......
  • U.S. v. Genser, No. 82-2458
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • May 24, 1983
    ...Tenth Circuit, we have affirmed practitioners' convictions both for distribution and for dispensation. See United States v. Smurthwaite, 590 F.2d 889 (10th Cir.1979) (counts of "dispensing and distributing"); United States v. Fellman, 549 F.2d 181, 182-83 (10th Cir.1977) (per curiam) (distr......
  • Arthurs v. Board of Registration in Medicine
    • United States
    • Massachusetts Supreme Judicial Court
    • April 3, 1981
    ...Mass. 222, 233, 356 N.E.2d 241 (1976), cert. denied, 430 U.S. 946, 97 S.Ct. 1582, 51 L.Ed.2d 793 (1977). See United States v. Smurthwaite, 590 F.2d 889, 892 (10th Cir. 1979); United States v. Rosen, 582 F.2d 1032, 1036 (5th Cir. 1978); United States v. Bartee, 479 F.2d 484, 489 (10th Cir. T......
  • Request a trial to view additional results
19 cases
  • U.S. v. Armstrong, No. 07-30286.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • November 21, 2008
    ...and legitimate medical purposes may help a jury, it was not necessary on the facts of the case on appeal); United States v. Smurthwaite, 590 F.2d 889, 892 (10th Cir.1979) (finding expert testimony unnecessary to prove prescriptions were outside of professional practice where evidence includ......
  • Thomas v. Resort Health Related Facility, No. 81 C 229.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • May 26, 1982
    ...demanded in the victim's lawsuit. The tenth circuit seems to have so held in Comacho v. Colorado Electronic Technical College, supra, 590 F.2d at 889, in affirming the trial court's decision to award 56 months' back pay to the plaintiff instead of the 18 months' award the defendants had cal......
  • U.S. v. Genser, No. 82-2458
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • May 24, 1983
    ...Tenth Circuit, we have affirmed practitioners' convictions both for distribution and for dispensation. See United States v. Smurthwaite, 590 F.2d 889 (10th Cir.1979) (counts of "dispensing and distributing"); United States v. Fellman, 549 F.2d 181, 182-83 (10th Cir.1977) (per curiam) (distr......
  • Arthurs v. Board of Registration in Medicine
    • United States
    • Massachusetts Supreme Judicial Court
    • April 3, 1981
    ...Mass. 222, 233, 356 N.E.2d 241 (1976), cert. denied, 430 U.S. 946, 97 S.Ct. 1582, 51 L.Ed.2d 793 (1977). See United States v. Smurthwaite, 590 F.2d 889, 892 (10th Cir. 1979); United States v. Rosen, 582 F.2d 1032, 1036 (5th Cir. 1978); United States v. Bartee, 479 F.2d 484, 489 (10th Cir. T......
  • Request a trial to view additional results

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