United States District Court, D. Colorado
ORDER DENYING MOTION FOR NEW TRIAL
Robert E. Blackburn United States District Judge
This matter is before me on the Motion for New Trial [#476] filed November 23, 2015. The government filed a response [#494], and the defendant filed a reply [#511]. I deny the motion.
On November 9, 2015, the defendant, Dr. Joel Miller, was found guilty of Counts 20, 23, 24, 27, 28, 31, 32, and 35 of the Superseding Indictment [#216] (indictment) filed February 24, 2015. At all times relevant to the indictment, Dr. Miller was a licensed physician and was practicing medicine in Craig, Colorado. The indictment concerns actions and omissions of the defendant as a practicing physician. Counts 20, 23, 24, 27, 28, 31, and 32 all charge unlawful distribution of controlled substances by Dr. Miller. Conviction on each of those counts requires proof beyond a reasonable doubt that Dr.
Miller distributed one or more controlled substances on particular occasion to a particular patient without a legitimate medical purpose or did so then acting outside the usual course of professional practice. Each of these counts concerned prescriptions given by Dr. Miller to particular patients on particular dates.
II. STANDARD OF REVIEW
The standard for granting a new trial in a criminal case is set forth in Fed. R. Crim. P. 33, which provides that a new trial may be granted “if the interest of justice so requires.” Fed. R. Crim. P. 33(a). In considering the motion, the court presumes that the verdict is valid, and the defendant bears the burden of demonstrating that a new trial is warranted. 3 C. Wright, A. Leipold, P. Henning & S. Welling, Federal Practice & Procedure § 581 (4th ed. 2011). The submission to the jury of improper instructions may form the basis of a motion for new trial. See United States v. Guthrie, 814 F.Supp. 942, 946 (E.D. Wash. 1993), aff’d, . 17 F.3d 397 (9th Cir. 1994). Nevertheless, “a motion for a new trial is not regarded with favor and is only issued with great caution.” United States v. Herrera, 481 F.3d 1266, 1269-70 (10th Cir. 2007). See also United States v. Perry, 335 F.3d 316, 320 (4th Cir. 2003) (“[A] court should exercise its discretion to grant a new trial sparingly, and . . . should do so only when the evidence weighs heavily against the verdict.”) (citation and internal quotation marks omitted).
Dr. Miller asserts two bases in support of his motion for a new trial. First, he again challenges the testimony of a government expert witness, Dr. Theodore Parran. At trial, Dr. Parran testified about each patient involved in the counts listed above, the prescribing practices of Dr. Miller concerning these patients, and the particular prescriptions at issue in each count for each patient. In addition, Dr. Parran testified about the standards applicable to a physician treating patients who seek pain relief and the prescription of the controlled substances at issue in Counts 20, 23, 27, 28, 31, and 32.
Dr. Parran, and other expert witnesses, testified that the prescriptions issued by Dr. Miller as alleged in Counts 20, 23, 27, 28, 31, and 32, were issued without a legitimate medical purpose. He testified also that each of these prescriptions was issued outside the usual course of professional practice. Dr. Miller contends these opinions were “unhinged from recognized scientific medical principles” and, therefore, are not a proper basis for his conviction on Counts 20, 23, 27, 28, 31, and 32. Motion [#476], p. 4.
Second, Dr Miller contends the “jury was not adequately informed as to the law” because it was not given definitions of the terms “legitimate medical purpose” and “outside the usual course of professional practice.” Absent a definition of these terms, Dr. Miller contends, the jury was left to reach a decision without guidance as to the meaning of these key terms.
In the end, Dr. Miller asserts, the expert testimony presented at trial and the instructions given to the jury failed to define “the line between medical malpractice and criminal conduct.” Reply [#511], p. 2. The purported lack of such a definition, Dr. Miller contends, requires a new trial. I disagree.
Without objection by the defendant, the court accepted the proffer of expertise of Dr. Parran, who was then qualified as an expert in pain management, addiction, and internal medicine. As Dr. Miller concedes, Dr. Parran “eloquently described such concepts as dependence, drug-seeking behavior, addiction, medical history and physical records, progress notes, charting, and other medical concepts.” Motion [#476], p. 3. These concepts and others detailed by Dr. Parran and other experts who testified at trial are the principles Dr. Parran applied to the facts of this case. Dr. Parran and several other expert witnesses testified about what it means for a doctor to prescribe controlled drugs for legitimate medical purposes and within the usual course of professional medical practice. Dr. Parran also described why the particular prescriptions at issue in Counts 20, 23, 27, 28, 31, and 32 were not issued for a legitimate medical purpose and were not prescribed within the usual course of professional practice. The principles expressed by Dr. Parran and the other expert witnesses were described to the jury in detail, and the evidence showed these principles are well-founded in recognized medical principles. These principles are not, as Dr. Miller claims, ”unhinged from recognized scientific medical principles.” Motion [#476], p. 4.
Of course, the statute under which Dr. Miller was charged in Counts 20, 23, 27, 28, 31, and 32, together with the related and corresponding regulations, defines the criminal conduct with which Dr. Miller was charged and now stands convicted. That statute is 21 U.S.C. § 841(a)(1), (b)(1)(E), & (b)(2). The related regulation found at C.F.R. § 1306.04 also informs the definition of the criminal conduct at issue. The jury instructions [#466] provided a detailed definition of these crimes ...