072956P.pdf   07/28/2009  United States  v.  Christopher Smith
   U.S. Court of Appeals Case No:  07-2956
   U.S. District Court for the District of Minnesota - St. Paul   
   [PUBLISHED] [Melloy, Author, with Loken and Benton, Circuit Judges]
   Criminal case - criminal law and sentencing. In a prosecution for
   internet distribution of prescription drugs without an effective
   prescription, the district court did not err in instructing the jury to
   measure the usual course of professional practice under 21 U.S.C. Sec.
   841(a)(1) and 21 C.F.R. Sec. 1306.04 with reference to generally
   recognized and accepted medical practices and not a doctor's self-defined
   particular practice; the jury instructions were premised on a finding of
   guilt beyond a reasonable doubt and precluded a conviction based on the
   civil standard of liability; jury was properly instructed on the offense of
   introducing a misbranded drug into interstate commerce; district court did
   not err in allowing expert testimony on the issue of the standard of care to
   which a doctor must adhere in order to properly prescribe a controlled
   substance; while expert's testimony about the legal meaning of 21 C.F.R.
   Sec. 1306.04 was troubling, any error in admitting it was harmless; other
   challenges to evidentiary rulings rejected; evidence was sufficient to
   support conviction; sentence, which was imposed before the decision in
   Gall, is vacated, and the matter is remanded for further sentencing
   proceedings. Chief Judge Loken, concurring in part and dissenting in
   part.