PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-4761

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JOEL A. SMITHERS, a/k/a Joel A Smithers,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of Virginia, at Abingdon. James P. Jones, Senior District Judge. (1:17-cr-00027-JPJ-PMS-1)

Submitted: October 27, 2023 Decided: February 2, 2024

Before GREGORY, RICHARDSON, and BENJAMIN, Circuit Judges.

Vacated and remanded by published opinion. Judge Gregory wrote the opinion, in which Judge Richardson and Judge Benjamin joined.

ARGUED: Beau B. Brindley, THE LAW OFFICES OF BEAU B. BRINDLEY, Chicago, Illinois, for Appellant. S. Cagle Juhan, OFFICE OF THE UNITED STATES ATTORNEY, Charlottesville, Virginia, for Appellee. ON BRIEF: Neal Lawrence Walters, SCOTT KRONER, PLC, Charlottesville, Virginia; Blair T. Westover, THE LAW OFFICES OF BEAU B. BRINDLEY, Chicago, Illinois, for Appellant. Daniel P. Bubar, Acting United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. USCA4 Appeal: 19-4761 Doc: 173 Filed: 02/02/2024 Pg: 2 of 25

GREGORY, Circuit Judge:

Joel Smithers, until this prosecution a doctor of osteopathy, was convicted on 861

counts, all related to his opioid-prescription practices. He was sentenced to a total of 480

months in prison. After his conviction, the Supreme Court in Ruan v. United States, 597

U.S. 450 (2022), clarified the mens rea required to convict someone of unauthorized

dispensing or distributing of a controlled substance. Because Ruan makes clear that

Smithers’ jury instructions misstated the law, and because the misstatements were not

harmless error, we vacate the convictions and remand to the district court for a new trial.

We do not reach Smithers’ Confrontation Clause, sufficiency-of-the-evidence, or

withdrawal-of-counsel challenges.

I.

On September 12, 2017, a grand jury indicted Joel Smithers on one count of

possession of a controlled substance with intent to distribute, in violation of 21 U.S.C.

§§ 841(a)(1) and (b)(1)(C). J.A. 101. Over the course of the next year, the government filed

two superseding indictments. The first added 715 counts: one count of maintaining a place

for the purpose of unlawful distribution, in violation of 21 U.S.C. § 856, and 714 counts of

unlawful dispensing and distributing of a controlled substance. J.A. 102–03. The second

superseding indictment added 146 counts of unlawful dispensing and distributing. J.A. 130–

31. The latter counts were charged under 21 U.S.C. § 841(a)(1), which (in addition to

criminalizing possession with intent to dispense or distribute) provides that, “[e]xcept as

authorized . . . , it [is] unlawful for any person knowingly or intentionally . . . to manufacture,

2 USCA4 Appeal: 19-4761 Doc: 173 Filed: 02/02/2024 Pg: 3 of 25

distribute, or dispense . . . a controlled substance.” The statute does not define “authorized.”

Instead, Drug Enforcement Agency regulations define it: a prescription is only authorized

when “issued for a legitimate medical purpose by an individual practitioner acting in the

usual course of his professional practice.” 21 C.F.R. § 1306.04.

Because of the government’s superseding

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