U.S. v. Moyer, 98-1981

• Decision Date: 20 October 1998
• Docket Number: No. 98-1981,98-1981
• Citation: 182 F.3d 1018
• Parties: (8th Cir. 1999) UNITED STATES OF AMERICA, APPELLEE, v. NANCY LYNNE MOYER, APPELLANT. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1018

182 F.3d 1018 (8th Cir. 1999)

UNITED STATES OF AMERICA, APPELLEE, v. NANCY LYNNE MOYER, APPELLANT.

No. 98-1981

U.S. Court of Appeals, Eighth Circuit

Submitted: October 20, 1998

Decided: July 23, 1999

Appeal from the United States District Court for the District of Minnesota. [Copyrighted Material Omitted] Before Fagg, Beam, and Morris Sheppard Arnold, Circuit Judges.

Morris Sheppard Arnold, Circuit Judge.

Dr. Nancy Lynne Moyer stole morphine from the intravenous (IV) units of four patients who were under her care in the Intensive Care Unit of Methodist Hospital. On each occasion, Dr. Moyer inserted a hypodermic needle and syringe into the patient's morphine delivery device, removed some of the morphine, and replaced the stolen morphine with saline solution.

Based on this conduct, a jury convicted Dr. Moyer of four counts of tampering with a consumer product, see 18 U.S.C. § 1365(a)(4). The jury also convicted Dr. Moyer of six counts of obtaining a controlled substance through fraud, see 21 U.S.C. § 843(a)(3), for her use of forged prescriptions to obtain various narcotics. See United States v. Moyer, 985 F. Supp. 924 (D. Minn. 1997). On appeal, Dr. Moyer challenges the application of the tampering statute to her conduct, the sufficiency of the evidence to sustain her convictions for tampering, and the trial court's application of the federal sentencing guidelines to her case. We affirm the judgment of the trial court.¹

I.

The tampering statute, see 18 U.S.C. § 1365(a), imposes criminal sanctions on anyone who, "with reckless disregard for the risk that another person will be placed in danger of death or bodily injury and under circumstances manifesting extreme indifference to such risk, tampers with any consumer product that affects interstate... commerce." Although Dr. Moyer admits that she stole morphine from her patients' IV units, she contends that her conduct did not fall within the scope of this statute. She relies on the legislative history of § 1365(a) to argue that Congress intended the term "tampers" to include a malicious-intent requirement, that is, the performance of a malicious act that renders a consumer product dangerous. Dr. Moyer thus argues that her convictions should be set aside because no evidence was adduced at trial that she acted with a specific intent to harm when she tampered with her patients' IV units.

We decline to read such a requirement into the statute, for we find no ambiguity whatsoever in its language. See King v. Ahrens, 16 F.3d 265, 271 (8th Cir. 1994) ("[when] 'the plain language of a statute is clear in its context, it is controlling' "), quoting Blue Cross Association v. Harris, 622 F.2d 972, 977 (8th Cir. 1980). The statute itself specifies the mental state required: A tamperer must act with "reckless disregard" and "extreme indifference" to the risks of death or bodily injury in which his or her act is placing another person.

We agree with the trial court, moreover, that in the context of this statute, the term "tampers" merely describes the physical act of product adulteration. A defendant's state of mind is not relevant to the ordinary meaning of the term, especially where, as here, other terms in the statute set forth the requisite state of mind in such a clear and unambiguous fashion. See United States v. Jones, 965 F.2d 1507, 1520 (8th Cir. 1992), cert. denied, 506 U.S. 924, 965 (1992), 508 U.S. 941 (1993) (where term is not defined by statute, it should be given its ordinary meaning). Under the plain language of § 1365(a), therefore, the government was required to prove only that Dr. Moyer tampered with her patients' IV units, and that she did so with reckless disregard and extreme indifference for the risk of death or bodily injury in which she placed her patients.

II.

The statute specifically requires that the government prove an effect on interstate commerce as an element of the offense of tampering with a consumer product. See 18 U.S.C. § 1365(a). Dr. Moyer contends that the trial court should have granted her motion for a judgment of acquittal, see Fed. R. Crim. P. 29(c), on the tampering counts because the government failed to meet its burden of proof on this issue. We disagree.

A motion for a judgment of acquittal should be denied where the evidence, viewed in the light most favorable to the government, is such that a reasonable jury could have found each of the essential elements of the crime beyond a reasonable doubt. See United States v. Hood, 51 F.3d 128, 129 (8 Cir. 1995), andth United States v. Huntsman, 959 F.2d 1429, 1436-37 (8 th Cir. 1992), cert. denied, 506 U.S. 870 (1992). After carefully reviewing the record, we believe that there was sufficient evidence from which a reasonable jury could find that Dr. Moyer's tampering with her patients' IV units had an effect on interstate commerce.

The evidence at trial tended to show that Methodist Hospital purchases additional morphine from a Minnesota supplier when its supply drops below a certain level, and that the morphine is manufactured outside Minnesota and shipped to the Minnesota supplier in response to orders. Witnesses testified that the morphine IV units of two patients began to leak after Dr. Moyer tampered with them, and that nurses had to replace those units with new units containing additional morphine for those patients. Methodist's pharmacist, moreover, testified that she ordered additional morphine to replace depleted supplies just a few days after Dr. Moyer had committed four of her six acts of tampering.

Based on this evidence, we think that a reasonable jury could find that Dr. Moyer's illicit use of her patients' morphine contributed to the depletion of the hospital's morphine supply, which in turn required the hospital to order additional morphine. Because that morphine necessarily traveled to Minnesota from out-of-state manufacturers, we believe that a reasonable jury could find that Dr. Moyer's tampering affected interstate commerce.

Dr. Moyer contends that her use of the morphine had no effect on interstate commerce because the same amount of morphine would have been used whether the patients or Dr. Moyer herself consumed it. In other words, Dr. Moyer appears to argue that the government must prove that her tampering resulted in an incremental drop in supply over and above the reduction that would have resulted from her patients' normal use of the morphine. We disagree.

While it may be true that the patients' use of the morphine would have resulted in the very same depletion of the hospital's supply, such speculation is irrelevant...