United States District Court, W.D. Pennsylvania
OPINION ON DEFENDANT'S MOTION FOR JUDGMENT OF
ACQUITTAL AS TO COUNTS 1, 2, 3, AND 169
Flowers Conti Chief United States District Judge
close of the government's case, defendant Richard A.
Rydze (“defendant” or “Rydze”) moved
for judgment of acquittal pursuant to Federal Rule of
Criminal procedure 29(a) with respect to counts 1 through 3,
count 4, count 10, and counts 139, 141, 149, 150, and 169.
Rule of Criminal Procedure 29(a) provides:
(a) Before Submission to the Jury. After the
government closes its evidence or after the close of all the
evidence, the court on the defendant's motion must enter
a judgment of acquittal of any offense for which the evidence
is insufficient to sustain a conviction.
Fed. R. Crim. P. 29(a).
Standard of Review
considering a Rule 29 motion, the court must
“‘review the record in the light most favorable
to the prosecution to determine whether any rational trier of
fact could have found proof of guilt beyond a reasonable
doubt.'” United States v. Boria, 592 F.3d
476, 480 (3d Cir. 2010) (quoting United States v.
Brodie, 403 F.3d 123, 133 (3d Cir. 2005)). The court
must “examine the totality of the evidence, both direct
and circumstantial, ” and “must credit all
available inferences in favor of the government.”
United States v. Gambone, 314 F.3d 163, 170 (3d Cir.
2003). The court “will only find the evidence
insufficient when the prosecution's failure is
clear.” United States v. Mercado, 610 F.3d
841, 845 (3d Cir. 2010).
court heard argument on defendant's Rule 29 motions on
March 16, 2017. At the hearing the court denied
defendant's motion with respect to counts 4 and 10. The
court granted defendant's Rule 29 motion with respect to
counts 139, 141, 149 and 152. Counsel were ordered to confer
about count 169, after which the court would consider the
motion, and the parties were given leave to file supplemental
briefing with respect to counts 1, 2, and 3. The briefs are
filed and the court will address defendant's Rule 29
motion with respect to the remaining counts.
Counts 1, 2, and 3
charges Rydze with conspiracy to distribute controlled
substances - anabolic steroids, in violation of 21 U.S.C.
§ 846 & §§ 841(a)(1) & (b)(1). Counts
2 and 3 charge Rydze with distributing controlled substances
- anabolic steroids, in violation of 21 U.S.C. §
841(a)(1) and 18 U.S.C. § 2.
establish that Rydze is guilty of counts 1, 2, or 3, the
government must establish for each count that the
distribution of the controlled substances occurred
“outside the scope of professional practice” and
“not for a legitimate medical purpose.” See
United States v. Moore, 423 U.S. 122, 124, 139 (1975);
United States v. Merrill, 513 F.3d 1293, 1306
(11th Cir. 2008); United States v.
Maynard, 278 F. App'x 214, 218 (3d Cir. 2008);
United States v. Feingold, 454 F.3d 1001, 1009-10
(9th Cir. 2006). The relevant provisions of the
Code of Federal Regulations use the same language. A medical
doctor may only prescribe controlled substances “for a
legitimate medical purpose” when “acting in the
usual course of his professional practice.” 21 C.F.R.
§ 1306.04(a). A DEA-registered practitioner is
authorized to dispense a controlled substance only “in
the course of his/her ...