U.S. v. Nukida

Decision Date26 October 1993
Docket NumberNo. 92-50234,92-50234
PartiesUNITED STATES of America, Plaintiff-Appellant, v. Lissette Christina NUKIDA, Defendant-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Mark D. Larsen, Asst. U.S. Atty., Los Angeles, CA, for plaintiff-appellant.

Marcia J. Brewer, Los Angeles, CA, for defendant-appellee.

Appeal from the United States District Court for the Central District of California.

Before: WALLACE, Chief Judge, SNEED and HALL, Circuit Judges.

WALLACE, Chief Judge:

The government appeals from a judgment of the district court dismissing five counts of a sixteen count indictment charging that Nukida tampered with consumer products affecting interstate commerce, in violation of 18 U.S.C. § 1365(a). In granting Nukida's Federal Rule of Criminal Procedure 12(b) motion to dismiss, the district court concluded that the products allegedly tampered with did not then affect interstate commerce, and therefore it lacked subject matter jurisdiction. The government contends the district court exceeded its authority by ruling on the interstate commerce element prior to trial. Nukida counters that the government has waived this argument by failing to raise it in the trial court. The district court initially exercised jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction over the government's timely interlocutory appeal pursuant to 18 U.S.C. § 3731. We reverse and remand.

I

Casa Colina Peninsula Rehabilitation Center (Casa Colina) is a medical care facility in Lomita, California. It provides inpatient treatment for patients who require intravenous antibiotic medication, as well as for patients suffering from brain tumors. Conn, Myracks, and Thomas were patients at Casa Colina on February 7 and 8, 1991. All three were being administered intravenous medications which Casa Colina had received from Commerce Advanced Pharmacy Services (pharmacy) in Tujunga, California. The pharmacy had placed substances in plastic bags (I.V. bags) used at Casa Colina, combining drugs it received from various out-of-state suppliers with a dilutant, also manufactured outside California.

Nukida was on duty as a registered nurse at Casa Colina from the evening of February 7 to the morning of February 8, 1991. Early in the morning of February 8, Nukida administered intravenous solutions to the three patients. Hours later, around 8:00 a.m., other staff members at Casa Colina observed that Conn and Myracks were flushed, sweating profusely, moaning, and confused. After they both lost consciousness, Conn and Myracks were rushed to a local hospital where doctors discovered that they had dangerously low levels of blood sugar, a life-threatening condition if untreated. Both Conn and Myracks responded to treatment and recovered. Upon learning of the diagnosis, Casa Colina staff members examined other patients and learned that Thomas also was suffering from low blood sugar.

The staff members collected the five I.V. bags used for the three patients, immediately halted the administration of intravenous medications throughout the facility, and ordered replacement I.V. bags from a supplier other than the pharmacy. The five bags were tested by the Food and Drug Administration (FDA) at its laboratory in Philadelphia, Pennsylvania. Samples of the medication in the four bags used for Conn and Myracks tested positive for insulin contamination; tests on the bag used for Thomas proved inconclusive.

All of the other I.V. bags at Casa Colina and the tubing used to administer intravenous medications to Conn and Myracks were delivered to the pharmacy where they were inspected by Lum. Lum contacted each out-of-state manufacturer of the drugs to alert them of the situation. Several of the manufacturers conducted internal investigations and testing to determine whether there was evidence of product tampering at their end of the supply chain.

During her investigation, Lum noticed that eleven other I.V. bags were leaking through puncture holes too small to be noticed unless pressure was applied to the bags. The leaking bags, which had been stored in a supply room at Casa Colina, contained medications designated for Conn and Myracks. Lum discovered that an insulin syringe made holes identical to those in the leaking I.V. bags. The FDA examined the eleven bags at its Philadelphia laboratory, and all of them tested positive for insulin. In Washington, D.C., the Federal Bureau of Investigation (FBI) examined the tubing used to administer the intravenous medication to Conn and Myracks; it too had puncture holes.

FBI Special Agent Deppa questioned Nukida three times. After failing a lie detector test during the third interview, Nukida stated that she had intentionally injected insulin into some of the I.V. tubing used for Thomas, Conn, and Myracks. Nukida also stated that she had injected insulin into two bags of intravenous medication in Casa Colina's storeroom. Subsequently, Nukida was indicted on 16 counts of tampering with consumer products affecting interstate commerce, a violation of 18 U.S.C. § 1365(a).

After being charged, Nukida filed a motion pursuant to Federal Rule of Criminal Procedure 12(b) seeking dismissal of the indictment. Nukida argued that her acts did not affect interstate commerce, the charges in the indictment failed to state an offense, and therefore the district court lacked subject matter jurisdiction over the case. After hearing argument and considering declarations filed by the parties, the district court dismissed counts one through five, which alleged that Nukida had tampered with medications in I.V. bags connected to the patients. The district court held that when the I.V. bags had been connected to the patients' chest catheters, the medications left the stream of commerce. Therefore, Nukida's injection of insulin into the patients' I.V. tubes which carried the medications did not affect interstate commerce.

The district court left counts 6 through 16 undisturbed. These counts charged Nukida with injecting insulin into I.V. bags stored at Casa Colina. The court held that the 11 contaminated bags in the storeroom remained in the stream of commerce because they had not yet been attached to patients at the time Nukida allegedly contaminated them with insulin.

The government moved for reconsideration, contending that the district court erred in determining that the medications had left the flow of interstate commerce at the time of contamination. The government also argued that the court had mistakenly disregarded the effects on interstate commerce caused by Nukida's alleged actions, including the various investigations and testing necessitated by the contamination. After a second hearing, the district court denied the government's motion, finding that the medication in the five I.V. bags "had reached their ultimate destination and were being consumed at the time the tampering occurred. Therefore, at that time the consumer products were neither in nor affecting interstate commerce."

The district court rejected the government's argument regarding the effects on interstate commerce on two grounds. First, the court held that effects which occur later in time than the tampering are not relevant to whether the products in question affect commerce within the meaning of 18 U.S.C. § 1365(a). Even if subsequent effects are relevant, the court reasoned that the effects alleged by the government in this case were insufficiently substantial.

II

The government contends that Nukida's motion was premature. The government argues that whether the contaminated medications affected interstate commerce constitutes an element of the charged offense which should be decided by the jury. Therefore, resolution of that question must await trial of the general issue, and is not cognizable as a Rule 12(b) motion. The district court, however, treated the entire issue as a question of subject matter jurisdiction. Unfortunately, the district court never received the government's present argument. The government failed to object, and never apprised the court that it may have been invading the province of the factfinder by entertaining Nukida's challenge to the interstate commerce element before trial.

In two brief paragraphs of her brief, Nukida contends that it is now too late for the government to argue that the district court improperly decided this question in ruling upon a pretrial motion. Whether the government waived its argument by not raising it until appeal presents an issue to be decided by us in the first instance.

Nukida relies on but one case, United States v. Risk, 843 F.2d 1059, 1061 (7th Cir.1988), which dealt with the failure of the government to object to the submission of facts by Risk and the district court's use of the facts in a Rule 12(b)(6) proceeding. This case is different. Here, the question is one of jurisdiction: whether the district court was correct in deciding before trial that it had no subject matter jurisdiction. Jurisdictional issues will ordinarily be considered on appeal regardless whether they are raised in the trial court. Albrecht v. Lund, 845 F.2d 193, 194 (9th Cir.), amended, 856 F.2d 111 (9th Cir.1988).

Even if the question were not within our jurisdiction exception, it clearly falls within the exception which allows consideration of an issue raised initially on appeal if "the issue presented is purely one of law and the opposing party will suffer no prejudice as a result of the failure to raise the issue in the trial court." United States v. Carlson, 900 F.2d 1346, 1349 (9th Cir.1990). Whether the district court exceeded its authority in ruling upon Nukida's Rule 12(b) motion presents a purely legal question. There is no need for the development of additional facts and, because Nukida has addressed the government's legal argument in her appellate brief, there is no prejudice to Nukida resulting from the government's failure to raise the...

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