Jury still deliberating after 7 1/2 hours on physician prescription distribution allegations in Harrison County, West Virginia

The jurors remained unable to reach a verdict on the other six prescription distribution counts over approximately the next hour. They will return Thursday morning to continue their work.

Kleeh had yet to give the jury the charge from the U.S. Supreme Court decision in Allen vs. United States (1896), but he did mention it once. That charge, also known as the dynamite or shotgun charge, is anathema to many defense attorneys, who believe it is too encouraging to jurors to shed their beliefs about a case in order to reach a unanimous verdict.

Hess, who is presumed innocent, has been on trial for eight days.

The jury of six men and six women began deliberations shortly after 9:30 a.m. Wednesday and concluded shortly after 5 p.m.

Deliberating into the evening wasn’t an option due to a multi-year construction project in which the entire 1930s-era federal building that houses the District Court is to be revamped, including a new courtroom and more modern features. Construction crews are in the demolition phase but are working only after regular court hours.

The government asserts Hess broke the law by prescribing Adderall for weight loss (not a legitimate use) to three patients who were also nurses who worked with him; by prescribing Xanax to a longtime patient after she had just overdosed on that drug; and by trying to remotely wipe his iPhone after it had been remotely seized by the government.

According to the jury’s note, it has reached verdicts on the obstruction count that involves the alleged phone wipe attempt; the three Xanax counts; and 11 counts involving his alleged prescribing Adderall for weight loss to a nurse with whom Hess was in a romantic relationship.

The remaining counts involve allegations that Hess prescribed Adderall for weight loss to a nurse with whom he exchanged hundreds of texts, some of them racy; and two counts alleging he distributed Adderall for weight loss to a nurse who was his patient only briefly.

If convicted, Hess, 60, of Bridgeport, could face up to 20 years in prison and a fine of up to $1 million on the Adderall charges, up to five years in prison and a fine of up to $1 million on the Xanax charges, and up to five years and a fine on the obstructing charge.

The case was investigated by the Drug Enforcement Administration, with Assistant U.S. Attorneys Andrew Cogar and Eleanor Hurney prosecuting.

The defense attorneys are Mike Benninger and Tim Linkous of Morgantown.

In June 2013, a federal jury deliberated about 22 1/2 hours over three days before convicting a Harrison County doctor of health care fraud and several other charges.

A much younger Cogar had the government’s case then as well, and the judge at that time, Irene M. Keeley, sentenced that doctor to 8 1/4 years in prison, fined him $2.5 million and ordered a $1.2 million forfeiture.