Sufficiency of the evidence for a conviction of unlawful distribution of a controlled substance by a physician; Knowledge that the prescriptions were unauthorized; “Deliberate ignorance” jury instruction; Reading of the verdict without defendant present; Lack of an evidentiary hearing on defendant’s motion for a new trial

The court held that there was sufficient circumstantial evidence that defendant-Dr. Getachew knew the prescriptions at issue that he wrote were unauthorized so that his convictions did not constitute a “miscarriage of justice.” It also found no error in the district court’s giving a deliberate-ignorance jury instruction. Further, he did not show that his absence when the verdict was read affected his substantial rights, and “the district court did not abuse its discretion in denying his request for an evidentiary hearing” on his motion for a new trial. Dr. Getachew, an addiction specialist, was convicted of 11 counts of unlawful distribution of a controlled substance by a physician, for prescribing opioids without a legitimate medical purpose. His charges arose from the “‘astronomically high’” number of Subutex prescriptions he offered his patients. Subutex is prescribed when a patient is allergic to another alternative. The allergy is very rare. Subutex is “much easier to abuse than” the alternative “and has a much higher street value.” Getachew argued that the government failed to prove that he knew the prescriptions he was writing were unauthorized. Because he did not move for an acquittal, his convictions could not be overturned absent a “‘manifest miscarriage of justice.’” The court noted that he “regularly prescribed drugs to patients who had no documented need for them.” Further, he prescribed the drug to an undercover agent, even though “none of her drug tests showed any signs of her claimed oxycodone addiction. Dr. Getachew also prescribed Subutex to several patients without any supporting documentation for their claimed naloxone allergies[.]” And the evidence permitted the inference that he “routinely failed to examine his patients. The medical charts for every patient named in the indictment contained identical examination notes for every appointment.” In addition, he “continued issuing prescriptions despite significant red flags that patients diverted their medications.” His sufficiency argument failed. Getachew next argued that the district court erred by instructing the jury on deliberate indifference, and the court acknowledged that there was “room for debate” on that issue. But it concluded “the instruction did not affect Dr. Getachew’s substantial rights” where there was enough evidence to support his actual knowledge. The court also determined that the “district court did not err, plainly or otherwise, in crafting this instruction.” And nothing suggested his absence at the reading of the verdict “had the potential to change” it. Affirmed.