United States v. Barton, CRIMINAL ACTION No. 19-161 SECTION I

CourtUnited States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
Decision Date20 April 2020




April 20, 2020


Before the Court is defendant Natalie Barton's ("Barton") motion1 to dismiss counts two, six, and seven of the indictment. For the following reasons, the motion is denied.


On August 22, 2019, a federal grand jury returned a seven-count indictment against Barton.2 The indictment alleges that Barton and her husband ("E.B.") marketed and sold anabolic steroids and prescription drugs online and in a physical store located in Metairie, Louisiana, in violation of federal law.3 As stated in the indictment, neither Barton nor E.B. were practitioners licensed by law to administer

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prescription drugs.4 The indictment further alleges that Barton and E.B. nevertheless dispensed and sold prescription drugs without prescriptions and without legally-compliant labels, in that they did not include the symbol "Rx only" or adequate directions for use by a layperson, and they lacked adequate warnings against use as necessary for the protection of users.5 The prescription drugs that Barton allegedly sold consisted of, inter alia, tadalafil and sildenafil citrate, which were contained in packages that purportedly bore false and/or misleading labels stating that they were "not for human consumption."6

Count two of the indictment charges Barton with conspiracy to misbrand drugs in violation of 18 U.S.C. § 371.7 Counts six and seven charge Barton with misbranding of prescription drugs in violation of 21 U.S.C. §§ 331 and 333(a)(2), and 18 U.S.C. § 2.8

Barton argues that counts two, six, and seven should be dismissed because they fail to state an offense.9 Asserting that these three counts must allege that the United States is the "victim" of the offense charged or the "victim of a fraud," Barton

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contends that the lack of any such allegation in the indictment renders these three counts constitutionally insufficient.10

The government argues in response that Barton's contentions lack merit because counts two, six, and seven do not need to contain such allegations to be sufficient.11 The Court agrees.


Under Federal Rule of Criminal Procedure 7(c), an indictment "must be a plain, concise, and definite written statement of the essential facts constituting the offense charged." Fed. R. Crim. P. 7(c). The basic purpose of an indictment is to fairly inform a defendant of the charge against her. United States v. Gordon, 780 F.2d 1165, 1169 (5th Cir. 1986). "Generally, an indictment that closely tracks the language under which it is brought is sufficient to give a defendant notice of the crimes with which [s]he is charged." United States v. Franco, 632 F.3d 880, 884 (5th Cir. 2011). "An indictment need not list every particular of the offense. Instead, it 'simply needs to allege each element of the crime in a way that allows the accused to prepare his defense and invoke the Double Jeopardy Clause in a subsequent proceeding.'" United States v. Richard, 775 F.3d 287, 292 (5th Cir. 2014) (quoting Franco, 632 F.3d at 885).

"An indictment is legally sufficient if (1) 'each count contains the essential elements of the offense charged,' (2) 'the elements are described with particularity,' and (3) 'the charge is specific enough to protect the defendant against a subsequent

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prosecution for the same offense.'" United States v. Bolton, 908 F.3d 75, 88 (5th Cir. 2018), cert. denied, 140 S. Ct. 47 (2019) (quoting United States v. Fairley, 880 F.3d 198, 206 (5th Cir. 2018)). "[T]he test for the validity of the indictment is not whether the indictment could have been framed in a more satisfactory manner, but whether it conforms to minimal constitutional standards." United States v. Grant, 850 F.3d 209, 214 (5th Cir. 2017) (quoting United States v. Fitzgerald, 89 F.3d 218, 222 (5th Cir. 1996)).

"As a motion to dismiss an indictment for failure to state an offense is a challenge to the sufficiency of the indictment, [the court] [is] required to 'take the allegations of the indictment as true and to determine whether an offense has been stated.'" United States v. Kay, 359 F.3d 738, 742 (5th Cir. 2004) (quoting United States v. Hogue, 132 F.3d 1087, 1089 (5th Cir. 1998)).

A. Count Two

Count two of the indictment charges Barton with conspiracy to misbrand drugs in violation of 18 U.S.C. § 371.12 Count two re-alleges and incorporates by reference paragraphs one through thirty-eight of the indictment and further states:13

From on or about a date unknown, but sometime prior to July 10, 2007, until on or about August 22, 2019, in the Eastern District of Louisiana and elsewhere, the defendant, NATALIE BARTON, did unlawfully, knowingly, and intentionally combine, conspire, confederate, and agree with other persons known and unknown to the Grand Jury, to, with the intent to mislead, cause the introduction into interstate commerce drugs

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that were misbranded within the meaning of Title 21, United States Code, Section 352(a), 352(f), and 353(b)(4)(A) in violation of Title 21, United States Code, Sections 331(a), and 333(a)(2), and to dispense prescription drugs without a valid prescription from a licensed practitioner, an act which caused those drugs to become misbranded while held for sale after shipment in interstate commerce, in violation of Title 21, United States Code, Sections 331(k) and 333(a)(2).14

Count two also alleges four overt acts committed by Barton and others in furtherance of the conspiracy and to further the objects of the conspiracy.15 First, on or about June 21, 2016, Barton, E.B., and others constructively possessed quantities of sildenafil, tadalafil, and vardenafil at a location in Mandeville, Louisiana.16 Second, on or about February 9, 2017, an email was sent from puritysolutionscs@gmail.com stating, "We are now accepting donations through a Go Fund Me campaign temporarily to get credit card payments through until other means are integrated."17 Third, on or about February 15, 2017, Barton caused a package containing tadalafil and sildenafil to be shipped from an address in Mandeville, Louisiana to an address in Metairie, Louisiana.18 And fourth, on or about April 20, 2017, Barton caused a package containing tadalafil to be shipped from an address in Mandeville, Louisiana to an address in Wilton Manors, Florida.19

Pursuant to 18 U.S.C. § 371, it is unlawful for "two or more persons either to commit any offense against the United States, or to defraud the United States, or any

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agency thereof in any manner or for any purpose, and one or more of such persons [to] do any act to effect the object of the conspiracy."

Section 371 "punishes two distinct types of conspiracies: those 'to commit any offense against the United States' and those 'to defraud the United States.'" United States v. Loney, 959 F.2d 1332, 1338 (5th Cir. 1992) (citing United States v. Haga, 821 F.2d 1036, 1039 (5th Cir. 1987)). "The 'offense' clause criminalizes those conspiracies that contemplate the commission of an offense that is made illegal by federal law." Id. at 1340. A defendant may be convicted under the "offense" clause of § 371 where the United States was not the target of the conspiracy. Id.; see United States v. Coleman, 609 F.3d 699, 704 (5th Cir. 2010) ("[Section] 371 requires that the Government prove as an element that the conspiracy was targeted at a specific offense or 'unlawful objective.'"); see also United States v. Ellis, 121 F.3d 908, 913 (4th Cir. 1997) ("We . . . conclude, consistent with other circuits, that a conspiracy to commit 'any offense against the United States' under the first clause of § 371 extends generally to cover any offense made illegal by federal law.") (collecting cases).

To convict a defendant of conspiracy under 18 U.S.C. § 371, the government must prove: "(1) an agreement between two or more persons to pursue an unlawful objective; (2) the defendant's knowledge of the unlawful objective and voluntary agreement to join the conspiracy; and (3) an overt act by one or more of the members of the conspiracy in furtherance of the objective of the conspiracy."20 United States v.

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Tinghui Xie, 942 F.3d 228, 240 (5th Cir. 2019) (quoting Coleman, 609 F.3d at 704). "An agreement may be inferred from concert of action, voluntary participation may be inferred from a collection of circumstances, and knowledge may be inferred from surrounding circumstances." Id. (quoting United States v. Grant, 683 F.3d 639, 643 (5th Cir. 2012)).


Barton is charged under the offense clause of 18 U.S.C. § 371, which does not require an allegation that the United States is the "victim" of Barton's alleged conspiracy. See Loney, 959 F.2d at 1338. The substantive offenses contemplated by the conspiracy charged in...

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