United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON DEFENDANTS' MOTIONS FOR
JUDGMENT OF ACQUITTAL, OR, ALTERNATIVELY, A NEW
TRIAL
RICHARD G. STEARNS UNITED STATES DISTRICT JUDGE.
Following
a four-day trial, and a day of deliberations, the jury found
defendant Kathy Chin guilty of four felony violations of the
federal Food, Drug, and Cosmetic Act (FDCA), 31 U.S.C.
§§ 331(a), 333(a)(2) and 353(b)(1), and defendant
Michelle Thomas guilty of two felony counts of the same
offense.[1] The defendants, both of whom were licensed
pharmacists, were convicted of dispensing drugs without
prescriptions made out in the name of legitimate patients.
Defendants now move for a judgment of acquittal, or in the
alternative, for a new trial.[2]
The
governing standards are familiar. Rule 29 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).
A
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 Cir. 1979).
Defendants
make two principal arguments in support of their motions.
First, with respect to a judgment of acquittal, they contend
that the evidence, most generously construed in favor of the
verdict, established that their role at New England
Compounding Center (NECC) was limited to insuring at the
shipping point that the consigned drugs “were going to
the right facility at the right address.”[3] This clerical
task, they argue, cannot as a matter of law constitute
“dispensing” under the FDCA.[4] With respect to
the motion for a new trial, defendants argue that they were
unduly prejudiced by the severance of the trial of their
cases from those of the more culpable defendants. This, they
contend, forced them unfairly to defend against evidence of a
“panoply” of uncharged conduct implicating others
who bore far more responsibility for the day-to-day
operations of NECC.
Turning
first to the “dispensing” argument: defendants
rely principally on this court's prior interpretation of
the word “dispense” as it is used in the FDCA to
define the role of a licensed pharmacist in filling a
prescription for a drug. As I wrote in my decision dismissing
the dispensing counts as against these defendants and
defendant Alla Stepanets:
[w]here, as here, a word of common understanding
(“dispensing”) is given no further definition by
Congress, it is to receive its meaning in common parlance
tempered by the “commonsense concession that meaning
can only be ascribed to statutory language if that language
is taken in context.” Riva v. Massachusetts,
61 F.3d 1003, 1007 (1st Cir. 1995). The context here, of
course, is medical pharmacology. In the world of
pharmacology, a pharmacist engages in the act of dispensing
when she “fill[s] a medical prescription.”
Stedman's Medical Dictionary (28th ed. 2014). In
other words, a pharmacist dispenses a drug when she acts in
her role as a licensed professional authorized to fill (put
together) a medical prescription for delivery to a patient.
Ms. Chin and Ms. Thomas are not alleged to have engaged in
any conduct meeting this definition.
United States v. Chin, 2016 WL 5842271, at *4 (D.
Mass. Oct. 4, 2016) (footnote omitted).
The
Court of Appeals disagreed with my reading of the statute.
Rather, the First Circuit embraced the government's
argument that “dispensing” under the FDCA may
comprise simply of “the kind of checking that
pharmacists regularly do when filling prescriptions, i.e.,
confirming that legit prescriptions triggered the drug
shipments.” See United States v. Stepanets,
879 F.3d 367, 374 (1st Cir. 2018). As I explained in the wake
that ruling, because a First Circuit decision on a point of
law is (in the absence of an intervening, contrary Supreme
Court decision), controlling in this circuit, I am bound to
obey it. This is doubly so when the ruling is made in the
same case that is before the district court on an order of
remand. See Diaz v. Jiten Hotel Mgmt., Inc., 741
F.3d 170, 175 (1st Cir. 2013) (“The mandate rule . . .
requires a court to ‘scrupulously and fully' carry
out a higher court's order after remand” and
“forecloses the lower court from reconsidering matters
determined in the appellate court”).3
This is
not to say that the First Circuit is itself precluded from
revisiting the issue on appeal, which it might. While I
believe that the jury was properly instructed under the First
Circuit's definition of “dispensing,
”[5]I remain of the view that the
Stepanets definition conflates principles of
culpability drawn from the concept of distribution under the
Controlled Substances Act with the meaning of dispensing
under the FDCA.[6] That may not be a matter of great
significance under the misdemeanor theory of misbranding
because of the absence of the element of mens rea.
Nonetheless, I believe that the government should be held to
a higher standard of proof under the felony (specific intent)
branch of the crime. In other words, the felony should
require proof that a defendant deliberately abused her
position as a licensed pharmacist to perpetrate the fraud,
and not simply that she “caused” a drug to be
delivered.[7] But this is a ruling that only the First
Circuit, and not the district court, can now
make.[8]
Defendants'
further argument that the evidence did not support an
inference that they knew that false patient names were being
used by the “confirming department” at NECC in
assembling prescriptions is a matter of fact that the jury
resolved against defendants with sufficient evidence to
support the verdict, circumstantial in Chin's case and
direct in Thomas's case. See United States v.
Brandon, 17 F.3d 409, 425 (1st Cir. 1994) (holding that
fraudulent intent may be established solely by circumstantial
evidence).[9] In Thomas's case, the direct evidence
falls into the “no good deed goes unpunished”
category. As the jury learned, Thomas worked at NECC for only
five months fresh out of pharmacy school. On at least two
occasions she raised with her supervisors (including Barry
Cadden, NECC's Head Pharmacist) the issue of the
propriety of using obviously false names on the prescription
orders and (regrettably) accepted assurances that the matter
was of no real consequence. In the circumstantial context,
the government offered the prescription order forms (with
respect to both charged and uncharged conduct) that both
women reviewed and often signed or initialed. As the
government argues, the “patently fictitious names on
customer order forms should have been obvious red flags to
trained pharmacists like Defendants concerning the illegal
and fraudulent conduct taking place at NECC.”
Gov't's Mem. at 15.[10]
Defendants'
final complaint, that the government failed to offer proof
that they had the specific intent to defraud either the Food
and Drug Administration or the Massachusetts Board of
Pharmacy, see, e.g., Thomas Mem. at 11, is off the
mark. As the jury was instructed, that anyone or any specific
victim was deceived or influenced by the fraudulent conduct
is not an element of the felony misbranding
offense.[11]
Turning
to the severance and the allegation of undue prejudice: the
short answer is that the severance was granted at the
defendants' own request and over the
government's objection. Defendants achieved their
objective of avoiding the potential spillover posed by
bystander status in a lengthy trial involving multiple
defendants facing far more serious charges. Their
late-blooming complaint of having gotten what they wished for
does not sit well. Nor can the defendants reasonably fault
the government for presenting some background evidence of
NECC's wrongdoing - the case would have made no sense to
the jury without some glimpse of the larger picture. In my
view as the trial judge, the government did ...