United States District Court, D. South Carolina, Charleston Division
ORDER AND OPINION
MARGARET B. SEYMOUR SENIOR UNITED STATES DISTRICT JUDGE
P. Hargrave (“Defendant”) is the sole individual
named in a seven-Count Superseding Indictment filed on
October 17, 2018. ECF No. 37. Counts 1, 2, 4, and 7 charged
Defendant with knowingly, intentionally, and unlawfully
distributing Schedule II controlled substances (oxycodone and
dextroamphetamine) in violation of 21 U.S.C. § §
841 (a)(1) and (b)(1)(C). Id. Counts 3, 5, and 6
charged Defendant with knowingly, intentionally, and
unlawfully distributing Schedule IV controlled substances
(alprazolam and clonazepam) in violation of 21 U.S.C. §
§ 841 (a)(1) and (b)(1)(E)(2). Id. Defendant
entered a plea of not guilty on October 30, 2018 and
proceeded to trial. ECF No. 44. On July 18, 2019, after a
three-day jury trial, Defendant was convicted on all seven
Counts. ECF No. 85.
September 9, 2019, Defendant filed a motion for a judgment of
acquittal or a new trial pursuant to Rules 29 and 33 of the
Federal Rules of Criminal Procedure. ECF No. 98. Defendant
asserts that there was not enough evidence to convict him and
the court should therefore overturn the jury's verdicts.
Defendant also asserts that he should receive a new trial
because allegedly improper character evidence was introduced
in violation of Federal Rules of Evidence Rule 404(b) and
because the court did not allow one of Defendant's
experts to testify pursuant to Federal Rules of Evidence Rule
702. The government filed a response in opposition on
September 18, 2019, asserting that the evidence presented at
trial was sufficient to convict Defendant and the court did
not err in its evidentiary rulings at trial. ECF No. 99. On
September 26, 2019, Defendant filed an amendment to his
motion. ECF No. 101. In that amendment, Defendant also argues
that the government failed to turn over Brady material. The
government filed no response to Defendant's amendment.
29, Judgment of Acquittal
of the Federal Rules of Criminal Procedure states in part
that “[a]fter 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. The court may on its own consider whether the
evidence is insufficient to sustain a conviction.” Fed.
R. Crim. P. 29 (a). Furthermore, “[a] defendant may
move for a judgment of acquittal, or renew such a motion,
within 14 days after a guilty verdict or after the court
discharges the jury, whichever is later.” Fed. R. Crim.
P. 29 (c)(1). A defendant bringing a Rule 29 challenge based
on the sufficiency of the evidence faces a “heavy
burden, as appellate reversal on grounds of insufficient
evidence is confined to cases where the prosecution's
failure is clear.” United States v. Clarke,
842 F.3d 288, 297 (4th Cir. 2016); see also
United States v. Biedler, 110 F.3d 1064, 1067
(4th Cir. 1997)(“A defendant challenging the
sufficiency of the evidence. . . bears ‘a heavy
burden.'”)(quoting United States v. Hoyte,
51 F.3d 1239, 1245 (4thCir. 1995)). Federal court
review of challenges to the sufficiency of evidence presented
at trial is “sharply limited.” Wilson v.
Greene, 155 F.3d 396, 405 (4th Cir.1998)
(quoting Wright v. West, 505 U.S. 277, 296 (1992)).
A jury's verdict must be upheld if there is substantial
evidence, viewed in the light most favorable to the
government, to support its verdict. Burks v. United
States, 437 U.S. 1, 17 (1978). “[S]ubstantial
evidence is evidence that a reasonable finder of fact could
accept as adequate and sufficient to support a conclusion of
a defendant's guilt beyond a reasonable doubt.”
United States v. Burgos, 94 F.3d 849, 862 (4th Cir.
1996). A “substantially supported” verdict may
not be overturned because a court “finds the verdict
unpalatable or determines that another, reasonable verdict
would be preferable.” Id. Courts consider
“circumstantial as well as direct evidence, and allow
the government the benefit of all reasonable inferences from
the facts proven to those sought to be established.”
United States v. Tresvant, 677 F.2d 1018, 1021
(4th Cir. 1982). The court does not consider
witness credibility at the Rule 29 stage and “must
assume that the jury resolved all contradictions in favor of
the government.” United States v. Romer, 148
F.3d 359, 364 (4th Cir. 1998). The jury is
“the sole judge of the credibility of
[witnesses].” Biedler, 110 F.3d at 1070.
33, New Trial
of the Federal Rules of Criminal Procedure states in part
that “[u]pon the defendant's motion, the court may
vacate any judgment and grant a new trial if the interest of
justice so requires.” Fed. R. Crim. P. 33(a). The
decision to grant or deny a Rule 33 motion is left within the
discretion of the district court. United States v. Smith, 451
F.3d 209, 216-17 (4th Cir. 2006). “[A]
district court should exercise its discretion to grant a new
trial ‘sparingly' and that the district court
should grant a new trial based on the weight of the evidence
‘only when the evidence weighs heavily against the
verdict.'” United States v. Arrington, 757
F.2d 1484, 1486 (4th Cir.1985). (quoting United States v.
Wilson, 118 F.3d 228, 237 (4th Cir. 1997)).
ANALYSIS AND DISCUSSION
trial, the government had the burden to prove that Defendant
provided illegal prescriptions to four individuals: Crystal
Kowalski (“Kowalski”), Danielle Williams
(“Williams”), Jason Lines (“Lines”),
and Mary Flemming (“Flemming”). In order to find
Defendant guilty, the government was required to show:
[f]irst, that the defendant distributed the controlled
substance alleged in the indictment; [s]econd, that the
defendant knew that the substance distributed was a
controlled substance under the law at the time of the
distribution; and [t]hird, that the defendant distributed the
controlled substances outside the usual course of
professional practice and without a legitimate medical
ECF No. 82 at 9.
government offered the following witnesses, among others: 1)
Jennifer Pyle (“Pyle”), a Doctor's Care
employee; 2) Kowalski; 3) Dr. Curtis Franke (“Dr.
Franke”), an expert in the general practice of medicine
and the prescribing of controlled substances; and 4) Lisa
Fisher (“Fisher”), a pharmacist. ECF No. 81-1.
Defendant offered: 1) Dr. Jeffrey Siewicki (“Dr.
Siewicki”), a pharmacist (proffer only); and 2) Dr.
Matthew Wallen (“Dr. Wallen”), an expert in the
general practice of medicine and the prescribing of
testified that Lines is a drug dealer in the Summerville,
South Carolina community. 7/16/19 Tr. 17, 11. Kowalski
testified that she bought “whatever [drugs] [Lines]
had. . . Xanax, heroin cocaine. . . .” 7/16/19 Tr. 17,
15. Kowalski stated that she eventually could not obtain
drugs from Lines. 7/16/19 Tr. 21, 22-25. However, Lines put
Kowalski in contact with Defendant. 7/16/19 Tr. 22, 4-6.
Kowalski stated that she called Defendant “to get
prescription medications that [she] wanted.” 7/16/19
Tr. 22, 10. Kowalski arranged to meet Defendant after hours
on March 7, 2017 at his place of employment, Doctor's
Care in Moncks Corner, South Carolina, in order to exchange
“sexual favors” for drugs and money. 7/16/19 Tr.
22, 11-25. According to Kowalski, she arrived at ...