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United States v. Temeck

United States District Court, S.D. Ohio, Western Division

July 27, 2018

United States of America, Plaintiff,
v.
Barbara Temeck, Defendant.

          OPINION & ORDER

          MICHAEL R. BARRETT, JUDGE.

         This matter is before the Court upon Defendant Barbara Temeck's Motion for Acquittal or, in the Alternative, for New Trial as to Count 3 of the Indictment and Motion for Reconsideration of the Court's Order denying Defendant's Motion to Dismiss for Selective Prosecution. (Doc. 71). The Government has filed a Response in Opposition (Docs. 77 & 80). On June 7, 2018, the Court held oral argument on Defendant's Motion. (Doc. 89).

         I. BACKGROUND

         Defendant stood trial on three counts of violations of the Controlled Substances Act, 21 U.S.C. § 841(a)(1). The Controlled Substances Act contains general prohibitions involving the illegal manufacturing, distribution, dispensing, or possessing of controlled substances. To possess or dispense a controlled substance, physicians must be licensed to practice medicine and register annually with the Drug Enforcement Administration (“DEA”). 21 U.S.C. § 822. It is well-settled law that even physicians who register still may be convicted for violations of the Controlled Substances Act if the drugs prescribed were without legitimate medical purpose and outside the course of professional practice. United States v. Elliott, 876 F.3d 855, 865 (6th Cir. 2017).

         Defendant is the former Chief of Staff at the Cincinnati VA Medical Center and was employed by the U.S. Department of Veterans Affairs' Veterans Health Administration (“VA”) for approximately thirty-five years. (Doc. 81, PAGEID# 1146). Defendant is board certified in general surgery and thoracic surgery. (Doc. 81, PAGEID# 1146). It is undisputed that Defendant is a licensed physician.[1] Defendant was issued a fee-exempt DEA Controlled Substance Registration through the VA. (Gov't. Exs. 5-6).

         The charges brought against Defendant arose out of three prescriptions Defendant allegedly wrote for one person: K.H. K.H. is a former employee of the VA, married to a high-ranking administrator at the VA, and was seeking treatment as a result of injuries she sustained while employed by the VA. Since approximately 2002, Defendant acted as a “care coordinator” for K.H., which meant Defendant accompanied K.H. when she went to doctor's appointments and also sought referrals for K.H. to be seen by other physicians.[2] Even though K.H. was not treated at a VA facility, a number of these physicians were affiliated with the VA. (Doc. 87, PAGEID# 1483). These physicians prescribed controlled and noncontrolled substances for K.H. (Doc. 87, PAGEID# 1483). The prescriptions for controlled substances are recorded in the Ohio Automated Rx Reporting System (“OARRS”). (Doc. 82, PAGEID# 1312). OARRS is a prescription monitoring system. (Doc. 82, PAGEID# 1312). When a prescription for a controlled substance is filled, the pharmacist enters information about the patient and the prescription into a database. (Doc. 82, PAGEID# 1312). Law enforcement and healthcare professionals have access to the database. (Doc. 82, PAGEID# 1312). Law enforcement uses the information to prevent diversion of prescriptions for controlled substances. (Doc. 82, PAGEID# 1312). Healthcare professionals use the information to monitor a patient's prescriptions for controlled substances. (Doc. 82, PAGEID# 1314).

         At the conclusion of the Government's case, Defendant moved for a judgment of acquittal due to insufficient evidence pursuant to Rule 29 of the Federal Rules of Criminal Procedure. The Court reserved ruling on the motion. (Doc. 55). Defendant orally renewed her motion before submission to the jury. The Court reserved ruling in part, but also granted the motion in part. (Doc. 56). This ruling was made during the charge conference and is reflected in the Court's instructions to the jury.[3]

         The jury was instructed that it could find Defendant guilty of a violation of the Controlled Substances Act if the Government proved beyond a reasonable doubt each of the following elements:

First, the defendant distributed or dispensed a controlled substance as alleged in these counts of the Indictment;
Second, the defendant acted knowingly and intentionally in distributing or dispensing that controlled substance;
And, third, the defendant knew the act was not authorized by her registration, or if the act was authorized by her registration, the act was knowingly and intentionally not for a legitimate medical purpose.

(Doc. 58, PAGEID# 803).[4]

         The jury acquitted Defendant on Counts 1 and 2; and found Defendant guilty on Count 3. Count 3 charges that in November of 2013 Defendant did knowingly, intentionally and unlawfully distribute and dispense a mixture and substance containing a detectable amount of Diazepam, a Schedule IV controlled substance, in violation of federal law. Diazepam is also known by its generic name, Valium. At trial, Defendant testified that on November 2, 2013, she wrote a prescription for Diazepam for K.H. (Doc. 81, PAGEID# 1237). Defendant explained that on that date, which was a Saturday, Defendant was called to the home of K.H. (Doc. 81, PAGEID# 1237). Defendant explained further that K.H. was having an anxiety or panic attack, and Defendant wrote the prescription to help alleviate her symptoms. (Doc. 81, PAGEID# 1237-1239).

         Following trial, Defendant timely filed the present Motion pursuant to Rules 29(c) and 33(a) of the Federal Rules of Criminal Procedure. Defendant seeks relief from the Court in the form of either a new trial or an acquittal. Defendant maintains: (1) the government misstated the law and evidence in closing arguments; (2) the jury was erroneously instructed that Defendant could be found guilty on alternate grounds; (3) the evidence was insufficient; and (4) the jury's verdict on Count 3 was not unanimous.[5] (Doc. 71, PAGEID# 1020).

         II. ANALYSIS

         A. Standard of review

         Federal Rule of Criminal Procedure 29(a) provides: “After the government closes its evidence or after the close of all the evidence, the court on the defendant's motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction.” Rule 29(b) permits judges to reserve ruling on motions for judgment of acquittal, including motions made at the close of the government's case-in-chief. See Fed. R. Crim. P. 29(b) (“The court may reserve decision on the motion, proceed with the trial (where the motion is made before the close of all the evidence), submit the case to the jury, and decide the motion either before the jury returns a verdict or after it returns a verdict of guilty or is discharged without having returned a verdict.”). However, as the Sixth Circuit has noted, “Rule 29(b) mandates that when a judge reserves ruling on a motion for judgment of acquittal, the court ‘must decide the motion on the basis of the evidence at the time the ruling was reserved,' even if the defendant has put on evidence in his or her own defense.” United States v. Wagner, 382 F.3d 598, 611, n.2 (6th Cir. 2004).

         Following a jury verdict of guilty, Federal Rule of Criminal Procedure 29(c) permits the defendant to renew his or her motion for a judgment of acquittal. See Fed.R.Crim.P. 29(c). When reviewing a motion under Rule 29(c), this Court “must decide whether, after viewing the evidence in a light most favorable to the government, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Gardner, 488 F.3d 700, 710 (6th Cir. 2007) (citing United States v. Humphrey, 279 F.3d 372, 378 (6th Cir. 2002)). This Court must not “weigh the evidence, consider the credibility of witnesses, or substitute its judgment for that of the jury.” United States v. Chavis, 296 F.3d 450, 455 (6th Cir. 2002) (quoting United States v. Ferguson, 23 F.3d 135, 140 (6th Cir. 1994)).

         If this Court grants a motion under Rule 29(c), this Court must also “conditionally determine whether any motion for a new trial should be granted if the judgment of acquittal is later vacated or reversed.” Fed. R. Crim. P. 29(d)(1); see also United States v. Mikell, 84 Fed.Appx 485, 489 (6th Cir. 2003) (explaining the district court erred in finding pending motion for a new trial moot after granting motion for acquittal).

         A new trial should be granted whenever “the interest of justice so requires.” Fed. R. Crim. P. 33(a). However, “[t]he rule does not define interest of justice and the courts have had little success in trying to generalize its meaning.” United States v. Munoz, 605 F.3d 359, 373 (6th Cir. 2010) (internal quotation marks and citation omitted). “The paradigmatic use of a Rule 33 motion is to seek a new trial on the ground that ‘the [jury's] verdict was against the manifest weight of the evidence.'” Id. (quoting United States v. Crumb, 187 Fed.Appx 532, 536 (6th Cir. 2006)).

         In addition, it is “widely agreed that Rule 33's ‘interest of justice' standard allows the grant of a new trial where substantial legal error has occurred.” Id. This would include “reversible error or violation of the defendant's substantial rights.” Id. at 374. “[L]ess clear is whether a district court may grant Rule 33 relief where the verdict is not against the substantial weight of the evidence, and where no reversible error or violation of the defendant's substantial rights has occurred, but where the district court nonetheless believes that ‘the interest of justice' requires a new trial.” Id. at 374. Defendant argues that relief under Rule 33 is appropriate based on the cumulative effect of various errors and defects which rendered her trial fundamentally unfair. (Doc. 71, PAGEID# 1035) (citing United States v. Knox, 17 Fed.Appx. 353 (6th Cir. 2001)). However, the Sixth Circuit has not answered the question of whether Rule 33 relief may be granted “based on amorphous claims of trial unfairness that do not constitute reversible error.” United States v. Munoz, 605 F.3d at 375. Accordingly, this Court will analyze Defendant's motion for a new trial solely based on manifest-weight-of-the-evidence grounds.

         As the Sixth Circuit has explained:

Generally, such motions are granted only “in the extraordinary circumstances where the evidence preponderates heavily against the verdict.” United States v. Turner, 490 F.Supp. 583, 593 (E.D. Mich. 1979), aff'd, 633 F.2d 219 (6th Cir. 1980). A district judge, in considering the weight of the evidence for purposes of adjudicating the motion for new trial, may act as a thirteenth juror, assessing the credibility of witnesses and the weight of the evidence. United States v. Lutz, 154 F.3d 581, 589 (6th Cir. 1998).

United States v. Hughes, 505 F.3d 578, 592-93 (6th Cir. 2007); see also United States v. Lutz, 154 F.3d 581, 589 (6th Cir. 1998) (“A reversal based on the verdict being against the manifest weight of the evidence is proper when the government has presented sufficient evidence to convict, but the judge disagrees with the jury's resolution of conflicting evidence.”) (citing Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982)).

         With those standards in mind, the Court now turns to Defendant's Motion for Acquittal under Rule 29.

         B. Motion for Acquittal

         As explained above, the jury was instructed that it could find Defendant guilty of a violation of 21 U.S.C. § 841(a)(1) if the Government proved beyond a reasonable doubt each of the following elements:

First, the defendant distributed or dispensed a controlled substance as alleged in these counts of the Indictment; Second, the defendant acted knowingly and intentionally in distributing or dispensing that controlled substance; And, third, the defendant knew the act was not authorized by her registration, or if the act was authorized by her registration, the act was knowingly and intentionally not for a legitimate medical purpose.

(Doc. 58, PAGEID# 803). Therefore, Defendant could be convicted under one of two theories: (1) Defendant wrote the prescription for K.H. “knowing that she was not authorized by her registration” to do so; or (2) Defendant was authorized, but Defendant wrote the prescription for K.H. without a legitimate medical purpose.

         As to the first theory, Defendant argues that the evidence presented by the Government was clearly insufficient for a reasonable juror to find, beyond a reasonable doubt, that Defendant knew that she was not authorized to write the prescription for the controlled substance in question to K.H. As to the second theory, Defendant argues that the Government failed to present expert opinion testimony on whether the prescription for K.H. was without legitimate medical purpose.

         The first theory, or the “registration” theory, is based upon United States v. Blanton, 730 F.2d 1425 (11th Cir 1984). In Blanton, the Eleventh Circuit upheld the defendant's conviction based on evidence which established the defendant dispensed the controlled substance knowing that the defendant was not registered for the drug. Id. at 1431. The evidence was as follows:

In March, 1976, Blanton was first contacted by the DEA. At that time, he was registered to handle substances in Schedules II through V including Schedule II N. The DEA had become concerned because of the unusually large quantities of methaqualone defendant had been purchasing. DEA Investigator Chaves conducted an audit of defendant's methaqualone supply and found that he had 63, 500 tablets on hand. When questioned [by the DEA] about why he needed so much methaqualone, defendant said he was doing research. He failed to produce any satisfactory records of that research. Investigator Chaves explained [to him] what type of records must be maintained by researchers. Defendant promised to comply.
When Blanton renewed his DEA registration for 1976-77 in July of 1976, he omitted Schedule II N, which was the methaqualone schedule, and all less dangerous drug schedules from his registration application, checking only the box for Schedule II narcotic substances. Despite his failure to register Schedule II N on his 1976-77 DEA registration, Blanton continued to order large quantities of methaqualone. As a result, he received a visit from investigator Chaves in October 1976. Chaves informed the defendant that he was not registered to handle methaqualone and requested that he immediately register in Schedule II N. Defendant disregarded Chaves's instructions ...

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