United States v. Bennett

• Decision Date: 16 October 2017
• Docket Number: No. 17-60038.,17-60038.
• Citation: 874 F.3d 236
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Sherrie Box BENNETT, Defendant–Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

874 F.3d 236

UNITED STATES of America, Plaintiff–Appellee

v.Sherrie Box BENNETT, Defendant–Appellant

No. 17-60038.

United States Court of Appeals, Fifth Circuit.

FILED October 16, 2017

Gaines H. Cleveland, Assistant U.S. Attorney, Andrea Cabell Jones, Esq., John Arthur Meynardie, Esq., U.S. Attorney's Office, Southern District of Mississippi, Gulfport, MS, for Plaintiff–Appellee.

Michael Wesley Crosby, Gulfport, MS, for Defendant–Appellant.

Jerry Dean Bennett, Pro se.

Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Sherrie Bennett was convicted of one count of conspiracy to distribute a controlled substance, ten counts of distributing or dispensing a controlled substance, and three counts of bankruptcy fraud. Ms. Bennett appeals, urging error by the district court and the prosecutor. Finding no reversible error, we affirm.

I.

At all times relevant here, Defendant Sherrie Box Bennett worked as a registered nurse at Biloxi Radiation Oncology Center (the "Clinic") for Dr. Laurence Lines. Dr. Laurence Lines began to suffer from symptoms of dementia, becoming increasingly reliant on Ms. Bennett.¹ Ms. Bennett helped him buy a home next door to her home, was a named beneficiary of Dr. Lines' will, and held his medical power of attorney.

The Government presented evidence that, from at least 2010, prescriptions for controlled medications in Dr. Lines' name were written for Ms. Bennett, her husband and co-defendant Jerry Dean Bennett, and other members of her family. The Clinic's medical records did not reflect that the recipients were patients. At trial, the Government introduced evidence that Ms. Bennett effectively wrote these prescriptions using Dr. Lines' DEA number and tracing a signature stamp embossed with Dr. Lines' signature.²

In 2011, the Clinic filed for protection under Chapter 11, initially remaining a debtor-in-possession before the United States Trustee moved to have a Chapter 11 trustee appointed.³ Prior to the trustee's appointment, Ms. Bennett remained in control of the Clinic's checkbook. An appointed accountant noticed three suspicious checks that formed the basis for the counts of bankruptcy fraud against Ms. Bennett: (1) Check #1372, dated 1/25/13, for $16,636; (2) Check #1422, dated 3/22/13, for $10,000; and (3) Check #1445, dated 4/3/13, for $28,000. Evidence was presented at trial that Ms. Bennett had written and cashed those checks and deposited similar amounts into her own checking account.⁴ Attorney Kimberly R. Lentz was appointed as the Chapter 11 Trustee, and on June 17, 2013, Lentz filed an adversary proceeding against Ms. Bennett, alleging gross mismanagement of the bankruptcy estate and fraudulent appropriation of debtor assets.

Separately, the Mississippi Department of Human Services was contacted about Dr. Lines. Jamie Thompson, then supervisor of a unit "that deals with the investigation of abuse, neglect, and financial exploitation of vulnerable persons," was dispatched to Dr. Lines' home, where he found the doctor living in squalor.

Thompson additionally testified that, on another occasion, "we went by there actually to try to interview the Bennetts in their home, and Mr. Bennett ... was actually the one who said, you know, ‘We have nothing to say,’ and slammed the door in our face, so that was the end of our conversations with them. He informed us that he did have an attorney, and so we respected his right to counsel."

Ultimately, a federal grand jury returned an 11-count indictment against the Bennetts, and then a first superseding indictment, charging both of the Bennetts with one count of conspiracy to distribute and dispense a controlled substance as prohibited by 21 U.S.C. § 841(a)(1), all in violation of 21 U.S.C. § 846 ; ten counts of knowingly and intentionally distributing and dispensing a controlled substance outside of professional practice in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 ; and charging Ms. Bennett alone with three counts of bankruptcy fraud in violation of 18 U.S.C. § 153.

The jury trial began on July 19, 2016 and concluded ten days later. After the Government rested its case-in-chief, the Bennetts moved for a judgment of acquittal under Rule 29 of the Federal Rules of Criminal Procedure, which the district court denied for Ms. Bennett and granted in part and denied in part for Mr. Bennett. The jury returned a verdict of guilty on all charges against Ms. Bennett. The court sentenced Ms. Bennett to: (1) concurrent terms of: (a) 78 months of imprisonment for the distribution of schedule II and schedule III narcotics; (b) 60 months imprisonment for distribution of schedule IV narcotics; and (c) 60 months for bankruptcy embezzlement; (2) a three-year term of supervised release for each charge to run concurrently; (3) an $8,000 fine; (4) a $1,400 special assessment; and (5) $54,636 in restitution.

Ms. Bennett filed a post-trial Motion for Judgment of Acquittal or Alternatively, Motion for a New Trial, which the district court denied. Ms. Bennett appeals that denial, inter alia, raising the following challenges: (1) The court failed to give her proposed jury instructions; (2) The court failed to declare a mistrial following alleged prejudicial testimony; (3) The court failed to declare a mistrial following alleged prosecutorial misconduct; (4) The court erroneously allowed the prosecution to amend its indictment; and (5) the evidence presented was insufficient to sustain her conviction.⁵

II.

We begin with Ms. Bennett's claim that the district court erred when it rejected two of her proposed jury instructions. This Court reviews the propriety of jury instructions for abuse of discretion, asking "whether the charge, as a whole, is a correct statement of law."⁶ "Where, as here, the defense requested a jury instruction and the request was denied, we review the denial for abuse of discretion.... [We] afford [ ] ‘substantial latitude to the district court in describing the law to the jury.’ "⁷ "A district court abuses its discretion by failing to issue a defendant's requested instruction if the instruction ‘(1) is substantively correct; (2) is not substantially covered in the charge given to the jury; and (3) concerns an important point in the trial so that the failure to give it seriously impairs the defendant's ability to present effectively a particular defense.’ "⁸

Ms. Bennett argues that the district court erroneously rejected her proposed instructions, thereby enabling the Government to prosecute for failure to adhere to medical regulations, rather than the crimes charged. For instance, Ms. Bennett points to the Government's closing argument in which the prosecutor argued that the evidence showed that no physical exam had been performed nor had a medical file been maintained; that these regulatory violations sufficiently constituted distribution of a controlled substance outside the usual course of professional practice. While this Court has held that regulations can be used to help clarify the law, Ms. Bennett argues, the use of regulations here went beyond that.⁹

Ms. Bennett claims that her proposed jury instructions would have explained the difference between a violation of regulations and a criminal violation. The first proposed instruction read:

During the trial, you have received evidence regarding certain regulations, rules, and guidelines. Even though the use of a rubber stamp in lieu of a physician's signature and/or the failure to keep a medical chart when prescribing certain controlled substances and/or telephonically calling in a schedule II controlled substance to a pharmacy may be inappropriate or a violation of the rules, such an act is not done in violation of the offense unless it was done corruptly or if it was intended at the time it is done with the specific intent to violate the elements of the crime charges as set forth in these jury instructions.

Furthermore, if the defendant has a good faith belief that she/he was acting in accordance with the proper rules, regulations and guidelines, then that good faith belief is a defense to the crime charged.

The second instruction, lifted directly from a pair of judiciary bribery trials that Ms. Bennett's counsel had participated in, read:

Even though giving a judge something of value may be inappropriate or a violation of the ethical rules, such an act is not done corruptly so as to constitute a bribery offense unless it is intended at the time it is given to affect a specific action the judge officially will take in a case before him, or may take in a case that may be brought before him.

A gift or favor bestowed on a judge solely out of friendship, to promote good will, or for motive wholly unrelated to influence over official action does not violate the bribery statutes.

The district court, in rejecting the first proposed instruction, held that acting "corruptly" was not an element of any of the charges and giving this instruction would have served to confuse and mislead the jury. Additionally, the court noted that it had already included an instruction on good faith. As to the second proposed instruction, the court held that there was no legal or evidentiary basis to give the instruction from the bribery cases—the instruction was plainly not relevant.

On appeal, the Government adds that it was required to prove: (1) that the defendant distributed a controlled substance; (2) that she did so knowingly and intentionally; and (3) that she did so other than for a legitimate medical purpose and in the usual course of professional practice. Given those elements, the Government's argument goes, the jury was entitled to take into account accepted medical standards in determining whether a prescription was distributed outside of professional practice.¹⁰

Assuming that Ms. Bennett preserved this issue for appeal, the district court did not abuse its discretion in omitting her proposed instructions. Section 841(a) states:

Except as authorized by this subchapter, it

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