USA v. Spayd

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
vs.
JESSICA JOYCE SPAYD,
Defendant.
Case No. 3:19-cr-00111-JMK
ORDER DENYING DEFENDANT’S
FEDERAL RULE OF CRIMINAL
PROCEDURE 29(c) MOTION
Pending before the Court at Docket 336 is Defendant Jessica Spayd’s Federal
Rule of Criminal Procedure Rule 29(c) Motion for Judgment of Acquittal (the “Motion”).
The Government opposed the Motion at Docket 337. 	The Court ordered supplemental
briefing at Docket 338, which the parties filed at Dockets 339 and 343, respectively. The
Court also heard oral argument on the Motion on March 23, 2023.1 	For the foregoing
reasons, the Motion is DENIED.
I. 	BACKGROUND
On January 20, 2021, Ms. Spayd was charged in a First Superseding
Indictment with the distribution and dispensing of controlled substances resulting in death
in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) (Counts One, Three, and Five); the
1 Docket 345 (text entry).
Case 3:19-cr-00111-MAH-MMS Document 348 Filed 04/11/23 Page 1 of 23

United States v. Spayd 	Case No. 3:19-cr-00111-JMK
Order Denying Motion for Judgment of Acquittal 	Page 2
distribution and dispensing of controlled substances resulting in death in violation of
21 U.S.C. 	§§ 	841(a)(1), 	841(b)(1)(C), 	and 	841(b)(2) 	(Counts 	Two 	and 	Four); 	the
distribution and dispensing of a controlled substance in violation of 21 U.S.C. §§ 841(a)(1)
and 841(b)(1)(C) (Counts Six through Nine); and maintaining a drug-involved premises in
violation of 21 U.S.C. § 856(a)(1) (Count Ten).2 	Ms. Spayd’s jury trial began on
September 26, 2022.3 	On October 19, 2022, at the close of the Government’s case-in-
chief, Ms. Spayd’s counsel made an oral motion challenging the sufficiency of the evidence
for each Count under Rule 29(a) of the Federal Rules of Criminal Procedure.4 The Court
reserved ruling on the Motion pursuant to Rule 29(b).5 	On October 28, 2022, the jury
returned a verdict of guilty on all Counts in the Superseding Indictment.6 On October 31,
2022, the Court issued an Order denying Ms. Spayd’s Rule 29 Motion.7 On January 13,
2023, Ms. Spayd renewed her Rule 29 Motion pursuant to Rule 29(c), moving for a
judgment of acquittal on Counts One through Five and Count Ten.8
II. 	LEGAL STANDARD
Rule 29 provides that the Court “may set aside [a] verdict and enter an
acquittal” on “any offence for which the evidence is insufficient to sustain a conviction.”9
When ruling on a Rule 29 motion, the Court asks “whether, after viewing the evidence in
2 Docket 87.
3 Docket 246 (text entry).
4 Docket 293 (Trial Tr. 64:16–20).
5 Id. (Trial Tr. 64:21–25, 65:1–3).
6 Docket 320; Docket 321.
7 Docket 322.
8 Docket 336. Ms. Spayd is not contesting the jury’s verdict on Counts Six through Nine.
Id. at 1. 9 Fed. R. Crim. P. 29(a), (c)(2).
Case 3:19-cr-00111-MAH-MMS Document 348 Filed 04/11/23 Page 2 of 23

United States v. Spayd 	Case No. 3:19-cr-00111-JMK
Order Denying Motion for Judgment of Acquittal 	Page 3
the light most favorable to the prosecution, any rational trier of facts could have found the
essential elements of a crime beyond a reasonable doubt.”10 	“In ruling on a Rule 29(c)
motion, a district court must bear in mind that ‘it is the exclusive function of the jury to
determine the credibility of witnesses, resolve evidentiary conflicts, and draw reasonable
inferences from proven facts.’”11
III. 	DISCUSSION
A. 	Counts One through Five
To find Ms. Spayd guilty of the distribution and dispensing of controlled
substances in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C), the jury was required to find
that (1) Ms. Spayd knowingly distributed or dispensed methadone, fentanyl, oxycodone,
hydromorphone, diazepam, and/or carisoprodol; (2) Ms. Spayd knew at the time of
distribution or dispensing that the substance was a controlled substance; (3) the distribution
or dispensing of the controlled substance(s) was unauthorized; (4) Ms. Spayd knowingly
or intentionally distributed or dispensed the controlled substance(s) in an unauthorized
manner; and (5) the listed decedent died as a result of using the controlled substance(s) that
Ms. Spayd distributed or dispensed to them.12 	A prescription is authorized when it is
10 United States v. Niebla-Torres, 847 F.3d 1049, 1054 (9th Cir. 2017) (quoting United
States v. Corona-Garcia, 210 F.3d 973, 978 (9th Cir. 2000)).
11 United States v. Rojas, 554 F.2d 938, 943 (9th Cir. 1977) (quoting United States v.
Nelson, 419 F.2d 1237, 1241 (9th Cir. 1969)).
12 Docket 319 at 18; see also Ruan v. United States, 142 S. Ct. 2370, 2376 (2022);
M ANUAL OF M ODEL C RIMINAL J URY INSTRUCTIONS FOR THE NINTH C IRCUIT, Instruction 12.4
(2022 ed.).
Case 3:19-cr-00111-MAH-MMS Document 348 Filed 04/11/23 Page 3 of 23

United States v. Spayd 	Case No. 3:19-cr-00111-JMK
Order Denying Motion for Judgment of Acquittal 	Page 4
“issued for a legitimate medical purpose by an individual practitioner acting in the usual
course of his [or her] professional practice.”13
Ms. Spayd presents two arguments for acquittal: 	(1) the evidence did not
show 	that 	Ms. 	Spayd 	knew 	or 	intended 	to 	prescribe 	controlled 	substances 	in 	an
unauthorized manner, and (2) the Government did not prove that Ms. Spayd’s prescriptions
caused the deaths of the decedents listed in the Superseding Indictment.14 	The Court
addresses each of these arguments in turn.
1. 	Knowledge 	or 	intent 	to 	prescribe 	controlled 	substances 	in 	an
unauthorized manner
Ms. Spayd maintains that she believed her prescriptions were authorized. To
support this contention, Ms. Spayd highlights the differences between her practice and a
typical “pill mill,” arguing that (1) her patients were not drug addicts and had legitimate
medical issues; (2) she did not control any pharmacy; (3) she accepted Medicare and
Medicaid and her clinic did not depend on cash payments; (4) her facilities were clean and
professional; and (5) she did random urinalysis on patients.15 	Further, relying on the
Supreme Court’s decision in Ruan v. United States16 (hereinafter, “Ruan”), Ms. Spayd
argues that there was insufficient evidence for the jury to convict her on Counts One
through Five because the Government’s case essentially was a medical malpractice case
“built upon showing different medical professionals who disagreed with Ms. Spayd’s
13 Ruan, 142 S. Ct. at 2375; 21 C.F.R. § 1306.04(a).
14 Docket 336 at 2–16.
15 Id. at 4–8.
16 142 S. Ct. 2370 (2022).
Case 3:19-cr-00111-MAH-MMS Document 348 Filed 04/11/23 Page 4 of 23

United States v. Spayd 	Case No. 3:19-cr-00111-JMK
Order Denying Motion for Judgment of Acquittal 	Page 5
medical 	practice” 	and 	the 	Government 	failed 	to 	show 	that 	Ms. 	Spayd 	knew 	her
prescriptions were unauthorized.17
The Government presented sufficient evidence for a rational jury to conclude
that Ms. Spayd knew she was prescribing controlled substances in an unauthorized manner.
First, Ms. Spayd’s assertions that her clinic was not a run-of-the-mill pill mill are
inconsequential. The Government is not required to show that Ms. Spayd’s clinic bore all
the hallmarks of a pill mill to establish a violation of 21 U.S.C. § 841(a)(1). Second, the
Government presented evidence regarding knowledge of lack of authorization in a manner
that complied with Ruan. Ms. Spayd asserts that “the Government latches on to parts of
Ruan that allow it to use evidence of an objective standards [sic] of medical practice and
then bootstraps that evidence as the means to judge Ms. Spayd.”18 As Ms. Spayd appears
to acknowledge, the Government’s approach was explicitly approved by the Ruan Court;
the Court stated that “[t]he Government, of course, can prove knowledge of a lack of
authorization through circumstantial evidence . . . [a]nd the regulation defining the scope
of a doctor’s prescribing authority does so by reference to objective criteria such as
‘legitimate medical purpose’ and ‘usual course’ of ‘professional practice.’”19 “‘The more
unreasonable’ a defendant’s ‘asserted beliefs or misunderstandings are,’ especially as
measured against objective criteria, ‘the more likely the jury . . . will find that the
Government has carried its burden of proving knowledge.’”20 	Here, the Government
17 Docket 336 at 2–8.
18 Id. at 7.
19 Ruan, 142 S. Ct. at 2382.
20 Id. (quoting Cheek v. United States, 498 U.S. 192, 203–04 (1991)).
Case 3:19-cr-00111-MAH-MMS Document 348 Filed 04/11/23 Page 5 of 23

United States v. Spayd 	Case No. 3:19-cr-00111-JMK
Order Denying Motion for Judgment of Acquittal 	Page 6
presented the testimony of Dr. Timothy King, who reviewed Ms. Spayd’s files for each of
the five decedents named in the Superseding Indictment and opined that Ms. Spayd’s
treatment of the decedents represented an “extreme” departure from the standard of care.21
Although Ms. Spayd asserted that she believed her prescriptions were authorized, under
Ruan, a jury could have properly found her beliefs were unreasonable when measured
against objective criteria and discounted her testimony accordingly.
Further, contrary to Ms. Spayd’s suggestions, the Government’s case was not
confined to medical experts disagreeing with her medical decisions. 	The Government
presented testimony from multiple pharmacists around Alaska, each testifying that they
voiced concerns to Ms. Spayd about her prescribing practices.22 	Certain pharmacies
informed Ms. Spayd that they would no longer fill any of her prescriptions due to the high
dosages.23 The Government also showed that Ms. Spayd received numerous letters from
insurance companies indicating that her patients were on dangerously high doses of opioids
and requesting that she review her records and modify her treatment plan.24 	Evidence
regarding Ms. Spayd’s behavior also suggests that she knew she was prescribing outside
the bounds of normal professional practice. 	The jury heard evidence that Ms. Spayd
expressed concern to her office staff that new patients were undercover DEA agents.25 She
even astutely suggested on a video recorded by an undercover agent posing as a patient
21 Docket 299 (Trial Tr. 81:1–4).
22 Docket 268 (Trial Tr. 105:20–25, 106:1–25, 107:1–4, 168:2–22, 178:22–25, 179:1–18,
180:1–16); Docket 279 (Trial Tr. 200:3–25).
23 Docket 268 (Trial Tr. 106:1–14); Docket 269 (Trial Tr. 153:6–9).
24 Docket 279 (Trial Tr. 24:18–25, 25:7–9); Docket 299 (Trial Tr. 27:13–21, 73:4–11).
25 Docket 293 (Trial Tr. 90:4–6).
Case 3:19-cr-00111-MAH-MMS Document 348 Filed 04/11/23 Page 6 of 23

United States v. Spayd 	Case No. 3:19-cr-00111-JMK
Order Denying Motion for Judgment of Acquittal 	Page 7
that the undercover agent could be DEA.26 Finally, as described further below, information
found in Ms. Spayd’s own files indicates that she was aware that each decedent presented
with multiple serious “red flags,” yet she continued prescribing them high doses of opioids.
(a) 	Count One (J.L.)
When J.L. first saw Ms. Spayd, she indicated she had been off opioids for a
month—making her “opioid naive”—notwithstanding, Ms. Spayd prescribed her high
doses 	of 	methadone 	and 	oxycodone 	without 	performing 	a 	physical 	examination.27
Dr. King described this as “an extremely dangerous situation,” noting that “a prudent
provider would never have done that.”28 	J.L. had eight inconsistent urine drug screens
during her treatment with Ms. Spayd, which is highly suggestive of diversion and abuse.29
Ms. Spayd’s files indicated that J.L. had a history of heavy alcohol use as well as a history
of multiple prior overdoses on pain medication, including one shortly after her initial
appointment with Ms. Spayd.30 	During that overdose, the emergency room physician
wrote that he “spoke with [J.L.’s] primary advanced nurse practitioner . . . [she is] aware
that we have to get pain meds, weaning down.”31 After this incident, rather than attempting
to start the wean process, Ms. Spayd continued to prescribe J.L. the same high dose of
opioids.32
26 Docket 298 (Trial Tr. 160:6–8).
27 Docket 280 (Trial Tr. 15:13–25, 16:12–25).
28 Id. (Trial Tr. 15:25, 16:1–3).
29 Id. (Trial Tr. 34:5–19).
30 Id. (Trial Tr. 11:11–16, 21:15–25, 22–26).
31 Id. (Trial Tr. 25:3–5).
32 Id. (Trial Tr. 30:25, 31:1).
Case 3:19-cr-00111-MAH-MMS Document 348 Filed 04/11/23 Page 7 of 23

United States v. Spayd 	Case No. 3:19-cr-00111-JMK
Order Denying Motion for Judgment of Acquittal 	Page 8
(b) 	Count Two (K.B.)
Ms. Spayd’s files indicate that K.B. also had a history of overdosing on her
medication—Ms. Spayd wrote in her medical file that, after receiving a note from Mat-Su
Emergency Room, she spoke to K.B. on the phone “and she does admit to overtaking her
Xanax.”33 	K.B.’s mother testified that she called Ms. Spayd to discuss the high dosages
that Ms. Spayd was prescribing to K.B. and Ms. Spayd refused to speak with her and hung
up on her.34 Ms. Spayd’s medical file also revealed that K.B.’s functionality and quality
of life was declining during her treatment; she experienced homelessness, relationship
issues, and was prone to passing out.35 Ms. Spayd’s medical files indicated that, prior to
her last visit, K.B. had not taken opioids for approximately eight months.36 Nevertheless,
at K.B.’s first appointment after her months-long absence from Ms. Spayd’s care,
Ms. Spayd prescribed K.B. an “exceptionally dangerous” combination of Dilaudid and
Soma.37
(c) 	Count Three (B.S.)
After reviewing Ms. Spayd’s medical files, Dr. King testified that B.S.
presented with “almost every aberrant predictor that I could come up with that would point
towards . . . an ultimate outcome of overdose and death.”38 B.S.’s patient file revealed a
history 	of 	running 	out 	of 	her 	medications 	early, 	borrowing 	controlled 	substance
33 Id. (Trial Tr. 65:5–10).
34 Docket 288 (Trial Tr. 19:24–25, 20:3–5, 24:3–9).
35 Docket 280 (Trial Tr. 67:16–25, 68:1–19).
36 Id. (Trial Tr. 54:3–16).
37 Id. (Trial Tr. 55:3–25).
38 Docket 299 (Trial Tr. 40:9–12).
Case 3:19-cr-00111-MAH-MMS Document 348 Filed 04/11/23 Page 8 of 23

United States v. Spayd 	Case No. 3:19-cr-00111-JMK
Order Denying Motion for Judgment of Acquittal 	Page 9
medications from other people, and using somebody else’s urine for a least one urinalysis.39
B.S. had thirteen inconsistent urinalyses during her treatment with Ms. Spayd, indicating
the 	presence 	of 	non-prescribed 	medications 	or 	the 	absence 	of 	certain 	prescribed
medications.40 Ms. Spayd appears to have been aware of B.S.’s addiction issues, writing
in her medical file that B.S. had a diagnosis of “opioid type dependence.”41
(d) 	Count Four (E.K.)
E.K.’s medical file revealed that she had a history of alcohol abuse and
psychiatric issues.42 During her treatment, E.K. had twelve inconsistent urine drug screens,
six of which indicated the presence of alcohol in her system.43 Ms. Spayd wrote in her file
that she “believe[d] [E.K. was] abusing substances, and that is why she is experiencing so
much conflict in her life.”44 Ms. Spayd’s files indicated that E.K. called Ms. Spayd’s clinic
on multiple occasions while crying, slurring her speech, and complaining that she could
not find anywhere to fill her prescriptions.45 E.K. also had multiple previous failed trials
of high-dose opioid therapy with different medical providers, yet her pain level did not
seem to improve.46
39 Id. (Trial Tr. 38:5–10).
40 Id. (Trial Tr. 38:12–15).
41 Id. (Trial Tr. 43:8–10).
42 Id. (Trial Tr. 53:7–20).
43 Id. (Trial Tr. 69:5–8).
44 Id. (Trial Tr. 72:3–6).
45 Id. (Trial Tr. 62:21–25, 63:1–14, 66:2–25, 67:1–25, 74:19–25).
46 Id. (Trial Tr. 56:2–21).
Case 3:19-cr-00111-MAH-MMS Document 348 Filed 04/11/23 Page 9 of 23

United States v. Spayd 	Case No. 3:19-cr-00111-JMK
Order Denying Motion for Judgment of Acquittal 	Page 10
(e) 	Count Five (L.D.)
L.D.’s medical file was replete with indications that he was overtaking his
medications; he frequently was finishing his prescriptions early and calling Ms. Spayd’s
office to request additional medication.47 	Dr. King calculated that L.D.’s file contained
fifty-one “obvious indications of treatment noncompliance.”48 	Ms. Spayd’s files also
reveal that L.D. suffered a non-fatal overdose in 2016.49 The emergency room doctor wrote
that “at these levels of pain medication, [L.D.] is at an extremely high risk of accidental
overdose” and recommended tapering L.D.’s medications.50 After this incident, Ms. Spayd
initially lowered L.D.’s medications before escalating his dose again.51 	Before L.D.’s
death in 2019, Ms. Spayd was prescribing him a dosage that was “very close” to what he
was taking prior to his 2016 overdose.52
Viewing the evidence in the light most favorable to the prosecution, there
was sufficient evidence to sustain a conviction as to Ms. Spayd’s knowledge or intent that
her prescriptions to the decedents listed in Counts One through Five were unauthorized.
2. 	Causation
Counts One through Five invoke the “death results” enhancement codified at
21 U.S.C. § 841(b)(1)(C), which provides that “[i]n the case of a controlled substance in
schedule I or II . . . if death or serious bodily injury results from the use of such substance
47 Id. (Trial Tr. 12–14); Docket 280 (Trial Tr. 84:22–25, 85–86).
48 Docket 299 (Trial Tr. 20:1–2).
49 Id. (Trial Tr. 20:9–25, 21–22).
50 Id. (Trial Tr. 22:1–12).
51 Id. (Trial Tr. 22:16–19).
52 Id. (Trial Tr. 23:6–10).
Case 3:19-cr-00111-MAH-MMS Document 348 Filed 04/11/23 Page 10 of 23

United States v. Spayd 	Case No. 3:19-cr-00111-JMK
Order Denying Motion for Judgment of Acquittal 	Page 11
[the defendant] shall be sentenced to a term of imprisonment of not less than twenty years
or more than life . . . .”53 The Supreme Court has held that the “death results” enhancement
is an element that must be proved beyond a reasonable doubt.54 	In Burrage v. United
States55 (hereinafter “Burrage”), the Supreme Court considered the standard of causation
under the “death results” enhancement, holding that, “at least where use of the drug
distributed by the defendant is not an independently sufficient cause of the victim’s death
. . . a defendant cannot be liable under the penalty enhancement provision of 21 U.S.C.
§ 841(b)(1)(C) unless such use is a but-for cause of the death . . . .” Although the Supreme
Court reserved ruling on the viability of the independently sufficient theory of causation,
courts interpreting Burrage have held that the Government may prove that death resulted
from use of a drug by demonstrating either that (1) the drug was a but-for cause of the
decedent’s death, or (2) in a situation where “multiple sufficient causes independently, but
concurrently, produce a result,” the drug was an independently sufficient cause of the
decedent’s death.56
53 21 U.S.C. § 841(b)(1)(C).
54 Burrage v. United States, 571 U.S. 204, 210 (2014).
55 571 U.S. 204, 218–19 (2014).
56 See id. at 214–15; see also United States v. Robinson, 55 F.4th 390, 401 (4th Cir. 2022);
United States v. Feldman, 936 F.3d 1288, 1313 (11th Cir. 2019); Roundtree v. United States, 885
F.3d 1095, 1098 (8th Cir. 2018); Gaylord v. United States, 829 F.3d 500, 507 (7th Cir. 2016);
United States v. Ducasse, No. 3:16-cr-00017-SLG, 2019 WL 5058583, at *4 (D. Alaska Oct. 7,
2019) (“In Burrage, the Supreme Court held that the drugs distributed by a defendant must be an
“independently sufficient cause of the victim’s death or serious bodily injury” or a “but-for cause
of the death or injury” to establish liability under 21 U.S.C. § 841(b)(1)(C).”); United States v.
Snider, 180 F. Supp. 3d 780, 796 (D. Or. 2016) (noting that the Burrage Court did not decide, but
“strongly implies, however, that the but-for standard ordinarily applicable under 21 U.S.C.
§ 841(b)(1)(C) either does not apply to or may encompass a situation when use of a drug
distributed by a defendant is independently sufficient to cause death despite the presence of other
concurrent sufficient causes”).
Case 3:19-cr-00111-MAH-MMS Document 348 Filed 04/11/23 Page 11 of 23

United States v. Spayd 	Case No. 3:19-cr-00111-JMK
Order Denying Motion for Judgment of Acquittal 	Page 12
Ms. Spayd argues that the Government failed to prove that her prescriptions
caused the deaths of the decedents listed in the Superseding Indictment. 	“Ms. Spayd
acknowledges that the government does not have to prove that the deaths were foreseeable
under applicable Ninth Circuit law,” but includes a discussion on foreseeability “to show
why foreseeability is crucial in this case.”57 Ms. Spayd then asserts that when a patient is
on a dosage of medication for several years “it is simply not foreseeable that someone
would suddenly die.”58 	As Ms. Spayd concedes, binding precedent forecloses her
foreseeability arguments. Consistent with other circuits, in United States v. Houston,59 the
Ninth Circuit held that “[c]ause-in-fact is required by the ‘results’ language, but proximate
cause, at least insofar as it requires that the death have been foreseeable, is not a required
element [of 21 U.S.C. § 841(b)(1)(C)]”.60 Accordingly, Ms. Spayd’s arguments regarding
intervening causes or breaks in the causal chain have no bearing on the sufficiency of the
evidence in this case.61
Viewing the evidence in the light most favorable to the prosecution, the Court
finds that the Government presented sufficient evidence for a reasonable jury to conclude
57 Docket 336 at 8.
58 Id. at 10.
59 406 F.3d 1121, 1125 (9th Cir. 2005).
60 See also United States v. Arcila, 727 F. App’x 279, 280 (9th Cir. 2018) (“In United
States v. Houston, we held that the death resulting from the distribution of a controlled substance
need not have been reasonably foreseeable in order for the penalty enhancement in § 841(b)(1)(C)
to apply.”); see also United States v. Gonzalez, 906 F.3d 784, 799 (9th Cir. 2018) (noting that
“nothing in [Burrage v. United States, 571 U.S. 204 (2014)] calls into question the reasoning or
result in Houston”).
61 See Snider, 180 F. Supp. 3d at 797 n.27 (rejecting argument that decedent’s suicidal
intent rendered defendant’s conduct too attenuated from decedent’s death because Houston does
not require that the death be foreseeable).
Case 3:19-cr-00111-MAH-MMS Document 348 Filed 04/11/23 Page 12 of 23

United States v. Spayd 	Case No. 3:19-cr-00111-JMK
Order Denying Motion for Judgment of Acquittal 	Page 13
that the drugs prescribed by Ms. Spayd caused the deaths of the decedents. The Court first
addresses causation as to Counts One, Three, and Five (J.L., B.S., and L.D.), which involve
only Schedule II drugs. The Court then addresses the more complicated issue of causation
as to Counts Two and Four (E.K. and K.B.), which involve both Schedule II and
Schedule IV drugs.
(a) 	Counts One, Three, and Five (J.L., B.S., and L.D.)
Ms. 	Spayd 	prescribed 	J.L. 	methadone 	the 	day 	before 	she 	died.62
Dr. Gallagher, a medical examiner at the Alaska State Medical Examiner’s Office,
performed J.L’s autopsy and determined that the cause of death was multiple drug
intoxication.63 Dr. Gallagher testified that J.L. had a number of preexisting health issues,
such as cirrhosis of the liver and an enlarged heart, none of which were sufficient, by
themselves, to cause her death.64 	Dr. Gallagher and forensic toxicologist Donna Papsun
testified that alprazolam found in J.L.’s system, would not, by itself, have caused J.L.’s
death.65 	Dr. Gallagher testified that the methadone level in J.L.’s blood was within the
lethal range and the methadone was the most significant finding in terms of drugs, with the
other drugs in her system having potential additive effects.66 Dr. Gallagher opined that if
J.L. had not taken the methadone and oxycodone prescribed by Ms. Spayd, J.L. probably
would have lived.67 	Ms. Papsun testified that the methadone and oxycodone could be
62 Docket 288 (Trial Tr. 147:16–18).
63 Id. (Trial Tr. 43:12–14).
64 Id. (Trial Tr. 53:15–18).
65 Id. (Trial Tr. 63:2–5, 139:17–23).
66 Id. (Trial Tr. 64:21–25, 65:20–25).
67 Id. (Trial Tr. 68:4–6).
Case 3:19-cr-00111-MAH-MMS Document 348 Filed 04/11/23 Page 13 of 23

United States v. Spayd 	Case No. 3:19-cr-00111-JMK
Order Denying Motion for Judgment of Acquittal 	Page 14
sufficient to have caused J.L.’s death.68 	Based on this evidence, a reasonable jury could
have concluded that the methadone was the but-for cause of J.L’s death because, without
its incremental effect, she would not have died.
L.D. died at the hospital with oxycodone, oxymorphone, and fentanyl in his
system.69 When he arrived at the hospital, L.D. had two fentanyl patches attached to his
body, both of which were immediately removed by the emergency room doctors.70
Medical Examiner Dr. Rolf performed a consultation related to L.D.’s death and testified
that L.D.’s oxycodone and oxymorphone levels were within therapeutic ranges.71 Dr. Rolf
also testified that L.D.’s fentanyl level was within the range known to cause overdose
deaths.72 Ms. Papsun testified that the level of fentanyl in L.D.’s system could have been
fatal.73 	Although L.D. had the flu at the time of his death, Dr. Rolf opined that he died
from the oral and transdermal use of drugs.74 Dr. Elsburg, an emergency room doctor who
treated L.D., testified that L.D.’s symptoms immediately prior to his death were more
consistent with an opioid overdose than with the flu.75 	This evidence is sufficient for a
reasonable jury to conclude that the fentanyl prescribed by Ms. Spayd was the but-for cause
of L.D’s death.
68 Id. (Trial Tr. 147:6–12).
69 Docket 279 (Trial Tr. 175:1–9).
70 Id. (Trial Tr. 173:17–19).
71 Id. (Trial Tr. 175:12–25, 176:1–15).
72 Id. (Trial Tr. 176:24–25, 177:1).
73 Docket 288 (Trial Tr. 154:5–8, 155:2–3).
74 Docket 279 (Trial Tr. 192:8–11).
75 Docket 283 (Trial Tr. 33:16–25).
Case 3:19-cr-00111-MAH-MMS Document 348 Filed 04/11/23 Page 14 of 23

United States v. Spayd 	Case No. 3:19-cr-00111-JMK
Order Denying Motion for Judgment of Acquittal 	Page 15
B.S. died with only one drug in her system: 	methadone.76 B.S. was found
dead in her home near a methadone prescription bottle, which listed Jessica Spayd as the
prescriber.77 	Dr. Zientek, the chief medical examiner at the Alaska State Medical
Examiner’s Office, listed “methadone intoxication” as B.S.’s cause of death.78 He opined
that a physical injury B.S. had sustained a week prior to her death did not cause or
contribute to her death.79 Dr. Zientek testified that the level of methadone in B.S.’s blood
was independently sufficient to cause her death and that he had never seen a level that high
in any person, living or dead.80 	Ms. Papsun also testified that the level of methadone in
B.S.’s system was independently sufficient to cause her death, regardless of how high
B.S.’s tolerance was.81 Ms. Papsun reviewed data from the past seven years and found that
B.S.’s 	methadone 	level 	was 	higher 	than 	ninety-nine 	percent 	of 	all 	other 	reported
concentrations.82 	A reasonable jury hearing this evidence could conclude that the
methadone in B.S.’s system was the but-for cause of her death.
Ms. Spayd argues that, because no autopsy was performed on L.D. or B.S.,
the Government could not have established causation beyond a reasonable doubt.83
However, Dr. Zientek testified that there is no standard that requires a medical examiner
to perform an autopsy in a suspected overdose death.84 Ms. Spayd also asserts that there
76 Docket 279 (Trial Tr. 99:25, 100:1).
77 Id. (Trial Tr. 101:1–10).
78 Id. (Trial Tr. 116:5–7).
79 Id. (Trial Tr. 98:4–14).
80 Id. (Trial Tr. 112:1–5, 113:13–18, 116:21–25).
81 Docket 288 (Trial Tr. 157:21–25, 177:14–21).
82 Id. (Trial Tr. 158:6–24).
83 Docket 336 at 14–15.
84 Docket 279 (Trial Tr. 81:5–17).
Case 3:19-cr-00111-MAH-MMS Document 348 Filed 04/11/23 Page 15 of 23

United States v. Spayd 	Case No. 3:19-cr-00111-JMK
Order Denying Motion for Judgment of Acquittal 	Page 16
were problems with the autopsies performed on the other decedents.85 	These arguments
are inappropriate for resolution on a Rule 29 motion. Ms. Spayd presented these arguments
at trial and the jury apparently discredited them. On the present motion, the Court cannot
usurp the role of the jury and reweigh evidence or make its own credibility determinations.
In conclusion, based on the record at trial, the Court cannot say that no
rational jury could have concluded that causation was proven beyond a reasonable doubt
as to J.L., B.S., and L.D.
(b) 	Counts Two and Four (K.B. and E.K.)
The application of the “death results” enhancement to Counts Two and Four
presents a more complex question because Ms. Spayd is charged with distributing a
combination of Schedule II and Schedule IV drugs to these decedents and, at trial, the
Government pursued a theory that it was the combination, rather than the Schedule II drug,
that killed E.K. and K.B. 	Because “the death results” enhancement only applies to
Schedule I and II drugs, it follows from the statutory language that the government must
specifically prove that the Schedule I or II drug was a cause of the decedent’s death. The
Court requested supplemental briefing and held oral argument on the issue of whether,
when the evidence is construed in the light most favorable to the prosecution, a rational
trier of fact could have found that E.K. and K.B.’s deaths resulted from their use of the
Schedule II controlled substance(s) that Ms. Spayd prescribed to them.
85 Docket 336 at 12–16.
Case 3:19-cr-00111-MAH-MMS Document 348 Filed 04/11/23 Page 16 of 23

United States v. Spayd 	Case No. 3:19-cr-00111-JMK
Order Denying Motion for Judgment of Acquittal 	Page 17
The Ninth Circuit has not addressed the post-Burrage application of the
“death results” enhancement to multi-drug use situations involving the ingestion or a
Schedule I or II drug with a non-Schedule I or II drug, but other circuits have provided
useful guidance. 	Confronted with a multi-drug use case, the Eleventh Circuit found that
“Burrage does not require proof that a Schedule I or II drug be the ‘only’ cause of a victim’s
death” and “to prove but-for causation, the Government must drill down and show that, but
for the Schedule I or II drug’s inclusion in the drug cocktail, the victim would have lived.
If the Government makes that showing, it is ‘beside the point’ that other drugs were
necessary to make the drug cocktail deadly.”86 The Sixth Circuit has also confronted this
issue, concluding that but-for causation exists where the government presents sufficient
Schedule II-specific evidence for a rational jury to find that “without the incremental effect’
of [the Schedule II substance], [the decedent] would not have died.”87
In an ideal world, the Government would have asked its causation experts
their opinions as to whether E.K. or K.B. would have lived had they not taken the
Schedule II drug or whether the Schedule II drug was independently sufficient to cause
their deaths. It did not. Instead, the Government asked their causation experts whether the
combination of drugs in E.K. and K.B.’s systems was independently sufficient to cause
their deaths. 	The Government’s questions at trial piqued this Court’s concern about the
adequacy of the Schedule II-specific evidence, leading the Court to request supplemental
86 United States v. Feldman, 936 F.3d 1288, 1314 (11th Cir. 2019).
87 United States v. Volkman, 797 F.3d 377, 395 (6th Cir. 2015); see also Roundtree v.
United States, 885 F.3d 1095, 1098 (8th Cir. 2018) (concluding that the Government established
that without the incremental effect of a Schedule II drug the decedent would have lived).
Case 3:19-cr-00111-MAH-MMS Document 348 Filed 04/11/23 Page 17 of 23

United States v. Spayd 	Case No. 3:19-cr-00111-JMK
Order Denying Motion for Judgment of Acquittal 	Page 18
briefing and oral argument on that issue. The Government seemed to change tack at oral
argument, embracing a Schedule II-specific but-for causation theory that was largely
absent at trial. Although it may have taken a non-linear path to get there, after reviewing
the evidence in the light most favorable to the prosecution, the Court is satisfied that the
Government elicited sufficient evidence to allow a rational jury to decide that a Schedule II
drug was a but-for cause of E.K and K.B.’s deaths.
Ms. Spayd prescribed K.B. two drugs the day before her death in 2015:
hydromorphone (Schedule II) and carisoprodol (Schedule IV).88 	After performing an
autopsy, Dr. Rolf determined that the cause of K.B.’s death was “cardiac dysrhythmia of
unknown etiology” and the manner of death was “undetermined.”89 Dr. Rolf testified that
the level of hydromorphone in K.B.’s system was “higher than a normal average level, but
it’s lower than the . . . lethal level.”90 Dr. Rolf also testified that K.B.’s carisoprodol level
was well below the lethal level.91 	Ms. Spayd’s expert witness, forensic pathologist
Dr. James Fulcher testified that the examining pathologist (Dr. Rolf) described K.B.’s
hydromorphone 	and 	carisoprodol 	levels 	as 	“nontoxic” 	and, 	due 	to 	postmortem
redistribution, those levels may have actually been lower than they appeared.92 Ms. Papsun
testified that, to a reasonable degree of scientific certainty, the hydromorphone and
carisoprodol together were sufficient to cause K.B.’s death.93 	Ms. Papsun also testified
88 Docket 288 (Trial Tr. 34:3–25, 34:1–4).
89 Docket 279 (Trial Tr. 165:16–25).
90 Id. (Trial Tr. 162:7–11).
91 Id. (Trial Tr.164:1–7).
92 Id. (Trial Tr. 37:13–25).
93 Docket 288 (Trial Tr. 136: 4–9).
Case 3:19-cr-00111-MAH-MMS Document 348 Filed 04/11/23 Page 18 of 23

United States v. Spayd 	Case No. 3:19-cr-00111-JMK
Order Denying Motion for Judgment of Acquittal 	Page 19
that the hydromorphone level found in K.B.’s system could be capable of causing an
overdose.94 Ms. Papsun noted that K.B. had not taken opioids for months prior to her death
and she was “confident” that was a “sufficient timeframe [for K.B.] to lose a tolerance.”95
Ms. Papsun opined that the loss of K.B.’s opioid tolerance meant that K.B. could have
overdosed on a smaller dose of opioids than she previously had been used to and the
presence of carisoprodol would have further increased her risk of overdose.96 	Finally,
Ms. Papsun testified that the circumstances of K.B.’s death—she was found deceased with
a hypodermic needle near her as well as a white powder that was later determined to be
hydromorphone—were very consistent with an opioid overdose because injecting a drug
increases the risk of adverse effects.97 	A rational jury could have concluded that but-for
the hydromorphone, K.B. would have lived, especially given that all witnesses agreed that
the carisoprodol could not have killed K.B. on its own,98 the evidence suggesting that she
injected the hydromorphone, and the evidence indicating that she was opioid naïve at the
time of her death.
Ms. 	Spayd 	prescribed 	E.K. 	oxycodone 	(Schedule 	II), 	methadone
(Schedule II), and diazepam (Schedule IV).99 Dr. Gallagher performed E.K.’s autopsy and
94 Id. (Trial Tr. 127: 19–22).
95 Id. (Trial Tr. 133:9–16).
96 Id. (Trial Tr. 133:23–25, 134:1–11).
97 Id. (Trial Tr. 134:12–25, 135:1–12).
98 See United States v. Feldman, 936 F.3d 1288, 1314 (11th Cir. 2019) (concluding that
in a situation where a Schedule II drug would not have caused the deceased’s death had it been
taken alone, and likewise the deceased would not have died if they took only the Schedule IV drug,
the Schedule II drug can be considered the straw that broke the camel’s back or, in other words,
“consistent with Burrage, the but-for test for the [Schedule II drug] is met in this scenario”).
99 See Docket 87 at 4.
Case 3:19-cr-00111-MAH-MMS Document 348 Filed 04/11/23 Page 19 of 23

United States v. Spayd 	Case No. 3:19-cr-00111-JMK
Order Denying Motion for Judgment of Acquittal 	Page 20
concluded that E.K.’s cause of death was mixed drug intoxication.100 	Dr. Gallagher
testified that E.K. was found deceased with methadone in her system at a level that was
within the fatal range.101 	On cross-examination, Dr. Gallagher testified that E.K.’s
methadone 	level 	could 	have 	been 	therapeutic 	because 	methadone 	has 	overlapping
therapeutic and overdose ranges.102 	Dr. Gallagher also testified that the two other drugs
that Ms. Spayd prescribed to E.K.—diazepam and oxycodone—were present in her system
at non-fatal levels.103 E.K. had alcohol in her system, but Dr. Gallagher testified that the
alcohol itself was not sufficient to cause death.104 E.K. also had fluoxetine in her system
at a level within the fatal range, although Dr. Gallagher testified that he had never seen an
overdose death from fluoxetine in his career.105 Dr. Gallagher opined that the combination
of drugs that Ms. Spayd prescribed to E.K. was independently sufficient to cause her
death.106 	Dr. Gallagher and Ms. Papsun also opined that the presence of a “foam cone”
around E.K.’s mouth at the time of her death, an indication of a pulmonary edema, was
very consistent with an opioid overdose.107 	Ms. Papsun testified that the circumstances
surrounding E.K.’s death were consistent with an opioid overdose “to a reasonable degree
100 Docket 288 (Trial Tr. 82:15–25).
101 Id. (Trial Tr. 80:3–5).
102 Id. (Trial Tr. 87: 12–19).
103 Id. (Trial Tr. 78:8–16, 80: 13–20).
104 Id. (Trial Tr. 77:14–22); see Roundtree v. United States, 885 F.3d 1095, 1098 (8th Cir.
2018) (holding that, given testimony that “alcohol and metabolized heroin worked synergistically
to cause [decedent’s] death, but the level of alcohol in his bloodstream by itself was not enough to
cause death, no reasonable jury would have found that the heroin provided by [defendant] was a
contributing factor, but not a but-for cause, of [decedent’s] death”).
105 Docket 288 (Trial Tr. 81:16–20).
106 Id. (Trial Tr. 82:10–25, 83:1–5).
107 Id. (Trial Tr. 84:11–22, 151:14–25).
Case 3:19-cr-00111-MAH-MMS Document 348 Filed 04/11/23 Page 20 of 23

United States v. Spayd 	Case No. 3:19-cr-00111-JMK
Order Denying Motion for Judgment of Acquittal 	Page 21
of scientific certainty.”108 Finally, although there was evidence that E.K. had developed a
tolerance to opioids, Dr. Gallagher testified that when an individual’s tolerance increases,
the “window between therapeutic effect and possible respiratory suppression . . . gets
narrower.”109 	Given the evidence supporting the conclusion that E.K died of an opioid
overdose, a reasonable jury could have concluded that the drugs in E.K.’s system worked
synergistically to cause her death, but it was the methadone prescribed by Ms. Spayd that
was the straw that broke the camel’s back and, without its effect, E.K. would have lived.110
At oral argument, the Court also expressed concern that its jury instructions
and special verdict form did not make it clear to the jury that they had to find that the
Schedule II drug was a but-for or an independently sufficient cause of E.K. or K.B.’s
deaths. Ms. Spayd does not argue that any perceived flaw in the jury instructions or special
verdict form impacts the sufficiency of the evidence in this case.111 Therefore, the Court
does not address any issues relating to the jury instructions or special verdict form in
connection with the present motion.
B. 	Count Ten
To find Ms. Spayd guilty of the distribution and dispensing of controlled
substances in violation of 21 U.S.C. § 856(a)(1) and 18 U.S.C. § 2, the jury was required
to find that Ms. Spayd knowingly and intentionally maintained Eagle River Pain &
108 Id. (Trial Tr. 153:2–4).
109 Id. (Trial Tr. 42:1–3).
110 See United States v. Cockrell, 769 F. App’x 116, 118 (5th Cir. 2019) (“[E]ven if there
was evidence that the victims had used or were using other drugs or alcohol, so long as those other
drugs or alcohol alone would not have triggered an overdose, a showing that the heroin triggered
the victims’ overdoses is sufficient.”).
111 Docket 347 at 1–2.
Case 3:19-cr-00111-MAH-MMS Document 348 Filed 04/11/23 Page 21 of 23

United States v. Spayd 	Case No. 3:19-cr-00111-JMK
Order Denying Motion for Judgment of Acquittal 	Page 22
Wellness, LLC, for the purpose of illegally distributing controlled substances.112 	The
illegal distribution of controlled substances need not be the sole purpose of the property,
rather it must be one of the “primary or principal uses to which the [property] is put.”113
Neither Ms. Spayd nor the Government specifically address Count Ten in their briefs. The
Court will not guess as to what shortcomings Ms. Spayd perceives in the evidence
supporting her conviction on Count Ten.
Nevertheless, viewing the evidence in the light most favorable to the
Government, the Court concludes the Government introduced sufficient evidence upon
which a jury could have reasonably concluded that one of Ms. Spayd’s primary purposes
in maintaining her clinic was to distribute controlled substances without a legitimate
medical purpose while acting outside the usual course her professional practice. Evidence
was presented at trial indicating that Ms. Spayd had her office staff sign prescriptions for
her when she was out of the office.114 Ms. Spayd’s office staff testified that she would pre-
sign and pre-print prescriptions so that her staff could distribute those prescriptions when
she was not there.115 	Multiple former patients of Ms. Spayd testified that she did not
physically examine them prior to issuing prescriptions and their medical records described
physical examinations that never occurred.116 	The Government also showed videos
112 Docket 319 at 20; M ANUAL OF M ODEL C RIMINAL J URY INSTRUCTIONS FOR THE NINTH
C IRCUIT, Instruction 12.18 (2022 ed.).
113 United States v. Mancuso, 718 F.3d 780, 796 (9th Cir. 2013) (quoting United States v.
Shetler, 665 F.3d 1150, 1162 (9th Cir. 2011) and extending Shetler’s holding to the non-residential
context)).
114 Docket 293 (Trial Tr. 87:1–25).
115 Id.
116 Docket 288 (Trial Tr. 186:2–25, 188:1–25): Docket 283 (Trial Tr. 47:1–25).
Case 3:19-cr-00111-MAH-MMS Document 348 Filed 04/11/23 Page 22 of 23

United States v. Spayd 	Case No. 3:19-cr-00111-JMK
Order Denying Motion for Judgment of Acquittal 	Page 23
recorded by an undercover agent posing as a patient in which Ms. Spayd does not
physically examine the agent, the agent makes clear that he is an addict, and Ms. Spayd
prescribes him opioids anyways.117 This evidence was sufficient for a jury to conclude that
one of the primary purposes to which Eagle River Pain & Wellness, LLC was put was to
distribute controlled substances outside the usual course of professional practice.
IV. 	CONCLUSION
For the reasons described in this Order, Ms. Spayd’s Rule 29 Motion for
Acquittal at Docket 336 is DENIED. 	Ms. Spayd’s sentencing is currently scheduled for
Thursday, May 18, 2023, at 1:00 p.m. in Anchorage Courtroom 3.
IT IS SO ORDERED this 11th day of April, 2023, at Anchorage, Alaska.
/s/ Joshua M. Kindred
JOSHUA M. KINDRED
United States District Judge
117 Docket 298 (Trial Tr. 150–162).
Case 3:19-cr-00111-MAH-MMS Document 348 Filed 04/11/23 Page 23 of 23