United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON DEFENDANT'S MOTION FOR
JUDGMENT OF ACQUITTAL, OR, ALTERNATIVELY, A NEW
RICHARD G. STEARNS UNITED STATES DISTRICT JUDGE
a ten and one-half week trial, which included six days of
deliberations, the jury returned a verdict finding defendant
Alla Stepanets guilty of six misdemeanor violations of the
federal Food, Drug, and Cosmetic Act (FDCA). Stepanets was
acquitted of two felony counts charging racketeering
conspiracy and conspiracy to defraud the United States Food
and Drug Administration (FDA), and one additional count
charging a violation of the FDCA. Stepanets now moves for a
judgment of acquittal, or in the alternative, for a new trial
on the counts of conviction.
judgments of acquittal are granted sparingly. In deciding
such a motion, “we scrutinize the evidence in the light
most compatible with the verdict, resolve all credibility
disputes in the verdict's favor, and then reach a
judgment about whether a rational jury could find guilt
beyond a reasonable doubt.” United States v.
Olbres, 61 F.3d 967, 970 (1st Cir. 1995) (quoting
United States v. Taylor, 54 F.3d 967, 974 (1st Cir.
1995)). “Under the viewpoint principle, a jury charged
with determining an accused's guilt or innocence is
entitled to consider the evidence as a seamless whole. . . .
‘The sum of an evidentiary presentation may well be
greater than its constituent parts.'”
Olbres, 61 F.3d at 974 (quoting United States v.
Ortiz, 966 F.2d 707, 711 (1st Cir. 1992)).
district court's power to order a new trial pursuant to
Rule 33 is greater than its power to grant a motion for
acquittal. United States v. Rothrock, 806 F.2d 318,
321 (1st Cir. 1986). The court may consider both the weight
of the evidence and the credibility of the witnesses in
deciding a motion for a new trial. Id. However,
“[t]he remedy of a new trial is rarely used; it is
warranted ‘only where there would be a miscarriage of
justice' or ‘where the evidence preponderates
heavily against the verdict.'” United States v.
Andrade, 94 F.3d 9, 14 (1st Cir. 1996) (quoting
United States v. Indelicato, 611 F.2d 376, 386 (1st
makes three arguments in support of her motion, which I will
address serially. First, she contends that the strict
liability nature of the misdemeanors for which she was
convicted violates her right to due process on the grounds
that any crime that is “mens-rea-less” is
unconstitutional. Def.'s Mem. at 5 (quoting
Morissette v. United States, 342 U.S. 246, 250
(1952)). She candidly acknowledges that the Supreme Court has
held otherwise (specifically in reference to the FDCA), but
argues that these cases - United States v.
Dotterweich, 320 U.S. 277 (1943), and United States
v. Park, 421 U.S. 658 (1975) - “are wrongly
decided.” Def's Mem. at 5-6. This may someday be
true, but not until the Supreme Court says so. In the
meantime, a United States District Court has no power to
overrule a Supreme Court precedent.
elaborating on language taken from Dotterweich and
Park, Stepanets argues that she held too lowly a
position at New England Compounding Center to have had
“‘a responsible share in the furtherance of the
transaction which the statute outlaws, '” 320 U.S.
at 284, and as such, lacked “the [managerial] power to
prevent the act complained of.” 421 U.S. at 671. As the
government correctly notes, the language that Stepanets culls
from Dotterweich and Park relates to the
liability (or potential liability) of corporate officers who
themselves do not carry out the proscribed criminal acts but
delegate them to others. Stepanets was charged rather under
the prong of the statute that imposes liability on a
defendant for her own acts.
Stepanets argues that there is no evidence that she
“dispensed” the drugs within the meaning of the
statute. The argument relies on this court's prior
reading of the use of the word “dispense” in the
FDCA as it pertains to the role a licensed pharmacist (like
Stepanets) plays when she fills (puts together) a medical
prescription to be delivered to a patient. See United
States v. Chin, No. 14-10363-RGS, 2016 WL 5842271, at *4
(D. Mass. Oct. 4, 2016). While I remain sympathetic to the
argument, the First Circuit reversed this court on that
specific ground and remanded the case for trial. See
United States v. Stepanets, 879 F.3d 367 (1st Cir.
2018). In doing so, the First Circuit agreed with the
government that “dispensing” under the FDCA may
consist of no more than “the kind of checking that
pharmacists regularly do when filling prescriptions,
i.e., confirming that legit prescriptions triggered
the drug shipments.” Id. at 374. Because the First
Circuit's ruling is definitional in nature, and not
subject to differential factfinding at trial, I am bound by
the law of the case doctrine to respect it.
foregoing reasons, the motion for judgment of acquittal, or,
alternatively, for a new trial is DENIED.
 The government argues that Stepanets
has waived the motion for a new trial as she does not
articulate any basis for the request in her motion or
supporting memorandum. Govt's Mem. at 1 n.1. Because the
arguments Stepanets makes in support of her motion for an
acquittal include a claim of insufficiency of evidence with
respect to her knowledge of the invalid prescriptions, there
is no reason not to address both motions now. And while the
standards governing a motion for acquittal and a motion for a
new trial differ in some respects, the disparities have no
effect on the outcome here. Consequently, I will consider
both forms of requested relief.
 Stepanets' ancillary argument that
the evidence did not support an inference that she knew that
palpably false patient names were being used on the
confirming prescriptions is simply not the case, as the
government notes in its response. See Gov't Br.
at 5 n.2. The court has also previously rejected the argument
that federal law does not require that a valid ...