The opinion of the court was delivered by: Baylson, J.
MEMORANDUM RE: MOTION FOR JUDGMENT OF ACQUITTAL
The Defendant is a physician licensed in Pennsylvania who operated McKinney Medical Center, a solo practice located at 7514 Frankford Avenue, Philadelphia, PA. Dr. McKinney was charged in a 49 count indictment. Counts 1-48 charged him with illegally distributing controlled substances in violation of 21 U.S.C. § 841(a)(1). Count 49 charged maintaining a place for the illegal distribution of controlled substances, which is a crime pursuant to 21 U.S.C. § 856(a)(1). The case was tried before a jury in March 2010, following which the jury found Dr. McKinney guilty of 28 counts of distribution, and also Count 49.
Prior to trial, Dr. McKinney filed a Motion to Suppress during which the Court held an evidentiary hearing and entered a Memorandum and Order dated March 12, 2010 (Doc. Nos. 71 and 72), denying Defendant's Motion to Suppress. The background of this case is set forth in that Memorandum and will not be repeated here.
The post-trial motions are limited to arguing a Motion for Judgment of Acquittal (Doc. Nos. 103, 106 and130). Defendant makes no motion for a new trial.
The government's witnesses were in several categories. Three undercover law enforcement officers posed as patients and to whom Dr. McKinney prescribed drugs. Four civilians, who were his patients, testified to the circumstances under which Dr. McKinney prescribed drugs to them. The drugs were of two types, Percocet and Xanax, both of which are classified as Schedule II drugs which may not be distributed without a prescription. Inasmuch as Dr. McKinney was a licensed physician at the time, he was authorized to write prescriptions for these drugs, provided that he acted within the bounds of professional medical practice. The government also called an expert, Dr. George Woody, who opined after thorough review of Defendant's records that his prescriptions for Percocet and Xanax were not in accord with accepted medical practice.
In guiding the jury as to whether the Defendant prescribed drugs other than for legitimate medical purpose and not in the usual course of medical practice, the Court instructed the jury pursuant to Pennsylvania Code of Professional and Vocational Standards, Title 49, Chapter16.92, which defines the authority of physicians licensed by the Commonwealth of Pennsylvania prescribe controlled substances. This instruction was given after consultation with counsel and was not subject to any objection or exception at the time of trial.
In his post-trial Motion, the Defendant claims that the government's evidence was insufficient to show that the Defendant was guilty as charged. Defense counsel had made a Motion for Judgment of Acquittal at the close of the government's case (Doc. No. 103 and 106), and again, at the close of all the evidence. The Court reserved decision and will now deny the Defendant's Motion.
Under Rule 29, F. R. Crim. P., the Court must determine whether all of the evidence, taken in the light most favorable to the government, is sufficient to support the verdict. In determining whether a physician is liable for the improper distribution of drugs, the Supreme Court has held that physicians are subject to criminal liability when their activities fall outside the usual course of professional practice. United States v. Moore, 423 U.S. 122 (1975).
U.S. v. Tighe, 551 F.2d 18 (1977) appears to be the only precedential Third Circuit case involving similar facts. The parties have cited, and the Court will follow, the decision in United States v. Rottschaefer, 178 Fed. Appx. (3d Cir., April 27, 2006) which upheld a similar conviction, based in part on the testimony of the government's expert.
The indictment was structured as follows:
Counts 1-12 charged unlawful distribution of Percocet to different individuals, the details of which are set forth on government Exhibit 93A. Counts 30-48 charged illegal distribution of Xanax to some of the same individuals, the details of which are shown on government Exhibit 94A. As the verdict sheet shows, the jury was highly selective and discriminating in terms of determining whether the Defendant was guilty or not guilty on specific charges.
To the extent the testimony can be generalized, as a rule, Dr. McKinney was more careful and professional the first time a particular individual consulted him. He performed a physical examination, took some oral history and ascertained from the patient some need for the drugs. The fact that those specific examinations may not have been a model for professional practice is not determinative of whether Dr. McKinney is guilty under the charges in the indictment. However, Dr. McKinney was generally careless and lacking in any professional diligence on repeat visits by the same patient. For example, as to one witness, Amy Rudnitskas, who was a patient of Dr. McKinney's, the jury found that Dr. McKinney was not guilty on Counts 1-3, charging him with distributing Percocet to Ms. Rudnitskas on visits on July 16, August 19, and September 7, 2007, and also not guilty on Count 30, charging Dr. McKinney with distributing Xanax to her on August 18, 2007. The counts on which Dr. McKinney was found guilty relating to Ms. Rudnitskas, relate to the following dates of her visits:
As to Ms. Rudnitskas, the testimony shows that on the above dates, as opposed to the earlier dates, Dr. McKinney did not reevaluate her physical condition and made no further notations in her file as to her medical condition. The jury was, therefore, entitled to find that Dr. McKinney failed to meet the minimum standards required of a physician ...