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United States. v. Werther

United States District Court, Third Circuit

September 23, 2013

UNITED STATES OF AMERICA
v.
NORMAN WERTHER, et al.

MEMORANDUM

BERLE M.SCHILLER, J.

According to the Government, Dr. Norman Werther was the center of multiple conspiracies in which individuals drove fake patients to Dr. Werther’s office, where Dr. Werther performed perfunctory medical examinations and handed out prescriptions for Oxycodone. The prescriptions were filled, and the pills sold. Following a lengthy trial, Dr. Werther was convicted of over three hundred charges, including multiple counts of conspiracy, 186 counts of distribution of a controlled substance outside the usual course of professional practice and not for a legitimate medical purpose, and numerous counts of money laundering. He was also convicted of distribution of a controlled substance outside the usual course of professional practice and not for a legitimate medical purpose resulting in the death of Nathaniel Backes. Angel Duprey, a co-conspirator of Dr. Werther, was convicted of one count of conspiracy based on evidence that he drove patients to Dr. Werther and received pills from patients.

Presently before the Court are the motions of Dr. Werther and Duprey for judgment of acquittal, or, in the alternative, for a new trial. For the reasons that follow, the Court denies both motions.

I. STANDARD OF REVIEW

A. Rule 29

Rule 29 of the Federal Rules of Criminal Procedure provides that “[i]f the jury has returned a guilty verdict, the court may set aside the verdict and enter an acquittal.” The court must view the evidence in the light most favorable to the prosecution and must uphold the verdict provided that any rational trier of fact could have found guilt beyond a reasonable doubt given the available evidence. United States v. Brodie, 403 F.3d 123, 133 (3d Cir. 2005). Defendants face an uphill battle under this “highly deferential standard.” United States v. Carbo, 572 F.3d 112, 119 (3d Cir. 2009). Challenges to the sufficiency of the evidence supporting a jury verdict “should be confined to cases where the prosecution’s failure is clear.” United States v. Smith, 294 F.3d 473, 477 (3d Cir. 2002) (quoting United States v. Leon, 739 F.2d 885, 891 (3d Cir. 1994)). The defendant bears the burden of proving that the Government’s evidence was insufficient to convict. United States v. Gonzalez, 918 F.2d 1129, 1132 (3d Cir. 1990).

“Courts must be ever vigilant in the context of Federal Rule of Criminal Procedure 29 not to usurp the role of the jury by weighing credibility and assigning weight to the evidence, or by substituting its judgment for that of the jury.” Brodie, 403 F.3d at 133 (citing United States v. Jannotti, 673 F.2d 578, 581 (3d Cir. 1982) (en banc)).

B. Rule 33

Rule 33 of the Federal Rules of Criminal Procedure permits a court to vacate any judgment and grant a new trial “if the interest of justice so requires.” “[M]otions for new trials are disfavored and are only granted with great caution and at the discretion of the trial court.” United States v. Martinez, 69 F. App’x 513, 516 (3d Cir. 2003) (citing United States v. Allen, 554 F.2d 398, 403 (10th Cir. 1977)).

Unlike a Rule 29 motion, a court does not view the evidence in the light most favorable to the government when considering a Rule 33 motion but rather exercises its own judgment in evaluating the government’s case. United States v. Johnson, 302 F.3d 139, 150 (3d Cir. 2002). Nonetheless, “a district court ‘can order a new trial on the ground that the jury’s verdict is contrary to the weight of the evidence only if it believes that there is a serious danger that a miscarriage of justice has occurred—that is, that an innocent person has been convicted.’ ” United States v. Davis, 397 F.3d 173, 181 (3d Cir. 2005) (quoting Johnson, 302 F.3d at 150). A court must grant a new trial if it concludes that the trial was beset by cumulative errors that so infected the jury’s deliberations that they substantially influenced the trial’s outcome. United States v. Copple, 24 F.3d 535, 547 n.17 (3d Cir. 1994).

II. DISCUSSION

A. Dr. Werther’s Motion

1. Nathaniel Backes

Count thirty-eight of the Third Superseding Indictment charged Dr. Werther with distribution of a controlled substance outside the usual course of professional practice and not for a legitimate medical purpose resulting in the death of Nathaniel Backes. The law provides that “it shall be unlawful for any person knowingly or intentionally—(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.” 21 U.S.C. § 841(a)(1). Additionally, “if death or serious bodily injury results from the use of such substance, ” the law requires a prison sentence “of not less than twenty years or more than life.” 21 U.S.C. § 841(b)(1)(C).

Dr. Werther argues that the Court “should grant judgment of acquittal as to [the charges involving Backes] because the evidence produced at trial did not establish that Dr. Werther’s prescriptions were outside the usual course of professional practice and without a legitimate medical purpose, or that Oxycodone was the ‘but for’ cause of the Mr. Backes’ death. Consequently, no rational trier of fact could have found proof of Dr. Werther’s guilt beyond a reasonable doubt on these counts.” (Dr. Norman Werther’s Mot. for J. of Acquittal or, in the Alternative, Mot. for a New Trial [Werther Mem.] at 17-18.) Based on the evidence presented at trial and viewed in the light most favorable to the Government, the Court will not overturn the jury’s verdict on the counts related to Backes. Furthermore, the evidence was sufficient to convict Dr. Werther of all counts involving Backes, and his motion for a new trial will therefore be denied.

a. Testimony about the cause of Backes’s death

Dr. Walter Hofman, the elected coroner of Montgomery County, performed an autopsy on Backes. (May 9, 2013 Trial Tr. at 21, 24.) He concluded, to a reasonable degree of medical certainty, that Backes died of “combined drug intoxication or polypharmacy due to cocaine; benzoylecgonine, which is a breakdown product of cocaine; and oxycodone.” (Id. at 25, 66.) He concluded that Backes died of an overdose and listed the manner of death as an accident. (Id. at 25, 67.)

According to Dr. Hofman’s testimony, on September 1, 2010, Dr. Werther wrote Backes a prescription for 150 thirty-milligram oxycodone. (Id. at 33.) Dr. Hofman testified that, in an eleven week period, Dr. Werther prescribed “an awful lot of [Oxycodone] pills” to Backes, specifically 600 thirty-milligram Oxycodone pills and 120 fifteen-milligram Oxycodone pills. (Id.) Dr. Hofman further testified that police seized from Backes’s apartment Suboxone, Alprazolam (Xanax), an empty bottle of Oxycodone, and three loose thirty-milligram Oxycodone pills. (Id. at 30-32.)

Seeing no outward signs of bodily injury on Backes, Dr. Hofman performed an internal examination of the body. (Id. at 34-35.) Backes showed no signs of organ damage. (Id. at 57.) After removing Backes’s organs, Dr. Hofman noted four baggies present in Backes’s lower colon and rectum. (Id. at 37.) An additional clear plastic baggie containing white powder was found in Backes’s mouth. (Id. at 37.) Inside each of the five baggies was cocaine. (Id. at 52.) Additionally, a brown liquid residue had leaked into a few of the baggies. (Id.) Dr. Hofman testified, however, that he believed any seepage occurred post mortem, during his examination. (Id. at 59-62.) Additionally, Dr. Hofman stated that a baggie was damaged when he nicked it during the examination. (Id. at 64-65.) He did not believe that the cocaine in the baggies played any role in the death of Backes. (Id. at 64.)

An expanded post-mortem toxicology panel showed that Backes’s blood contained 32 nanograms per millimeter of Xanax, 280 nanograms per millimeter of cocaine, 1700 nanograms per millimeter of benzoylecgonine, and 2000 nanograms per millimeter of Oxycodone. (Id. at 54-55.) According to Dr. Hofman, “the alprazolam was within therapeutic limits. The other three substances in and by themselves, each one could explain death.” (Id. at 55.)

On cross-examination, Dr. Hofman conceded that at the time of Backes’s death, he had a lethal dose of cocaine in his system, a lethal dose of benzoylecogine in his system, and a lethal dose of Oxycodone in his system. (Id. at 70, 94.) He could not identify which drug or drugs caused the death of Backes. (Id. at 71.) Counsel also challenged Dr. Hofman’s testimony that he cut the baggie of cocaine during his examination of Backes, and that fluid had leaked into the baggies post mortem. (Id. at 81-84, 87-89.)

Dr. Edward Barbieri, a forensic toxicologist employed by NMS Labs (“NMS”), also testified as an expert for the Government. (May 10, 2013 Trial Tr. at 5, 7-8.) He discussed the tests of samples that NMS completed for the Backes case. Among other substances, Dr. Barbieri confirmed that Backes had Alprazolam, cocaine, benzoylecgonine, and Oxycodone in his system. (Id. at 12-13.) Dr. Barbieri testified that the amount of cocaine in Backes’s blood was “a typical level that somebody would get from taking a line of cocaine, for example.” (Id. at 16.) The 2000 nanograms per millimeter of Oxycodone was described as “a very large amount of Oxycodone.” (Id. at 17.)

Dr. William Greenfield testified as a psychiatrist who has treated many patients with addictions. (Id. at 35.) He discussed Suboxone, which allows individuals to deal with an opiate addiction without suffering from withdrawal symptoms. (Id. at 39-40.) Dr. Greenfield also discussed his treatment of Backes. He first began treating Backes for Attention Deficit Hyperactivity Disorder in January of 2010. (Id. at 42.) At that time, Backes told Dr. Greenfield that he had an opiate addiction and that he was taking Suboxone. (Id. at 43.) He saw Backes seven more times prior to Backes’s death. (Id. at 44.) During one of those visits, Backes sought additional Suboxone to ease his opiate withdrawal symptoms. (Id. at 43.) Dr. Greenfield gave Backes seven Suboxone pills and told him to return in a week, at which point Backes received one more week’s worth of the drug. (Id. at 47.)

Dr. Richard Fruncillo, the Government’s toxicology and pharmacology expert, explained that Backes “died either as the result of this very, very high Oxycodone level in combination with the Xanax or the Alprazolam or he died as a combination of the Oxycodone, the Alprazolam, and the cocaine.” (Id. at 70-71, 103-04.) He believed that Oxycodone caused Backes’s death because “this level was so high.” (Id. at 72.) The cocaine level found in Backes was well below the mean lethal levels reported in the medical literature. (Id. at 73.) Based on Backes’s cocaine level, “cocaine could not have caused his death alone.” (Id. at 73-74.) Dr. Fruncillo also testified that Backes had none of the indicators seen in people who died from low levels of cocaine, including heart problems. (Id. at 74-75, 106.) He also believed that the lack of oxymorphone, a metabolite of Oxycodone, demonstrated that Backes died of an acute Oxycodone overdose. (Id. at 76-77.) He estimated that Backes would have needed to take 450 milligrams of Oxycodone to arrive at the level found in his ...


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