United States v. Bennett

• Decision Date: 06 January 2017
• Docket Number: Criminal No. 1:15cr60–HSO–JCG
• Parties: UNITED STATES of America v. Sherrie Box BENNETT and Jerry Dean Bennett
• Court: U.S. District Court — Southern District of Mississippi

230 F.Supp.3d 546

UNITED STATES of America

v.Sherrie Box BENNETT and Jerry Dean Bennett

Criminal No. 1:15cr60–HSO–JCG

United States District Court, S.D. Mississippi, Southern Division.

Signed January 6, 2017

John A. Meynardie, U.S. Attorney's Office, Gulfport, MS, for United States of America.

Michael Crosby, Gulfport, MS, Arthur Carlisle, Attorney of Record, for Sherrie Box Bennett and Jerry Dean Bennett.

ORDER DENYING DEFENDANT SHERRIE BOX BENNETT'S [104] MOTION FOR JUDGMENT OF ACQUITTAL OR ALTERNATIVELY, MOTION FOR NEW TRIAL PURSUANT TO RULES 29 AND 33 OF THE FEDERAL RULES OF CRIMINAL PROCEDURE, AND DENYING DEFENDANT JERRY DEAN BENNETT'S [103], [105], [109] MOTIONS FOR JOINDER IN [104] MOTION

HALIL SULEYMAN OZERDEN, UNITED STATES DISTRICT JUDGE

BEFORE THE COURT are the Motion [104] for Judgment of Acquittal or Alternatively, Motion for New Trial Pursuant to Rules 29 and 33 of the Federal Rules of Criminal Procedure filed by Defendant Sherrie Box Bennett, and the Motions for Joinder [103], [105], [109] filed by Defendant Jerry Dean Bennett. These Motions are fully briefed. After considering the Motions, the record as a whole, and relevant legal authority, the Court finds that the Motion [104] for Judgment of Acquittal or Alternatively, Motion for New Trial, and the Motions for Joinder [103], [105], [109] should all be denied. Neither Defendant is entitled to a judgment of acquittal or a new trial.

I. BACKGROUND

A. Factual background

Defendant Sherrie Box Bennett ("Ms. Bennett") worked as a registered nurse at Biloxi Radiation Oncology Center (the "Clinic") with Dr. Laurence Lines ("Dr. Lines"). Ms. Bennett also worked as office manager and essentially ran the Clinic. At some point, Dr. Lines began to suffer symptoms of dementia. According to the Government, Ms. Bennett began exerting power over Dr. Lines' personal and business affairs.

Beginning at least as early as 2010, prescriptions using Dr. Lines' name were being written to Ms. Bennett, her husband Defendant Jerry Dean Bennett ("Mr. Bennett"), and others in the Bennetts' family. The Government maintains that some prescriptions were written by Dr. Lines himself, but that he was not aware of what he was doing. Other prescriptions were issued using Dr. Lines' rubberstamp signature, while still others were called into pharmacies by Ms. Bennett.

On November 22, 2011, Biloxi Radiation Oncology Center, LLC, filed a Voluntary Petition under Chapter 11 of the Bankruptcy Code. In re Biloxi Radiation Oncology Center, LLC , No. 11–52727–KMS, Petition [1] (Bankr. S.D. Miss. Nov. 22, 2011). The Clinic initially remained a debtor-in-possession. On May 7, 2013, the United States Trustee filed a Motion to Convert or Dismiss, or Alternatively, to Appoint a Chapter 11 Trustee because "the Debtor ha[d] shown gross mismanagement of the Debtor's affairs...." In re Biloxi Radiation Oncology Center, LLC , No. 11–52727–KMS, Mot. [304] (Bankr. S.D. Miss. May 7, 2013).

Attorney Kimberly R. Lentz was appointed as the Chapter 11 trustee in the bankruptcy proceeding. In re Biloxi Radiation Oncology Center, LLC , No. 11–52727–KMS, Order [336] (Bankr. S.D. Miss. June 10, 2013). In a separate Order, the Bankruptcy Court also ordered that Trustmark National Bank dishonor any check presented for payment that was made payable to Dr. Lines or Ms. Bennett. In re Biloxi Radiation Oncology Center, LLC , No. 11–52727–KMS, Order [337] (Bankr. S.D. Miss. June 10, 2013). The Bankruptcy Court required Trustmark to remove Dr. Lines and Ms. Bennett as authorized signatories on any existing debtor-in-possession account. In re Biloxi Radiation Oncology Center, LLC , No. 11–52727–KMS, Order [355] (Bankr. S.D. Miss. June 11, 2013).

On June 17, 2013, Ms. Lentz, as trustee, filed an adversary proceeding against Ms. Bennett. Lentz v. Bennett , No. 13–05024 Compl. [1] (S.D. Miss. June 17, 2013). The adversary complaint asserted claims against Ms. Bennett based upon her alleged gross mismanagement of the debtor's financial affairs and her alleged transfer of debtor assets to herself and to Dr. Lines, over which Ms. Bennett subsequently took control. Id.

B. Procedural history

On August 4, 2015, a federal grand jury returned an 11–count Indictment [3] against Ms. Bennett and Mr. Bennett (collectively, "Defendants"). On April 5, 2016, the Grand Jury returned a First Superseding Indictment [42]. Count 1 of the First Superseding Indictment [42] charged Ms. Bennett and Mr. Bennett with conspiring to distribute and dispense controlled substances outside the scope of professional practice as prohibited by 21 U.S.C. § 841(a)(1), all in violation of 21 U.S.C. § 846. 1st Superseding Indictment [42] at 1. Counts 2 through 11 charged that Defendants knowingly and intentionally distributed and dispensed a controlled substance outside the scope of professional practice on separate occasions between January 9, 2012, and April 5, 2013, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Id. at 1–5. Counts 12 through 14 charged Ms. Bennett alone with bankruptcy fraud, specifically knowingly and fraudulently appropriating to her own use, embezzling, spending, and transferring property of a debtor's bankruptcy estate in violation of 18 U.S.C. § 153. Id. at 5–6.

The jury trial of this criminal case was set to commence on Tuesday, July 19, 2016, at 9:00 a.m. On Thursday, July 14, 2016, at 6:34 p.m., Ms. Bennett's counsel filed a Motion for Trial Deposition [60]. Ms. Bennett asked the Court, pursuant to Federal Rule of Criminal Procedure 15, to permit her to depose Dr. Frank Pitruzzello, a Radiologist Oncologist who works in Mobile, Alabama, before trial commenced. Mot. [60] at 1–2. Ms. Bennett sought to use Dr. Pitruzzello's deposition testimony at trial. The Government filed a Response [61] in opposition to the Motion [60]. On July 15, 2016, the Court entered an Order [63] denying Ms. Bennett's Motion [60].

The jury trial began on July 19, 2016, and continued through July 29, 2016. After the Government rested its case-in-chief, Defendants moved for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29. The Court denied Ms. Bennett's Motion, and granted in part and denied in part Mr. Bennett's Motion. The Court dismissed Counts 7, 8, 10, and 11 of the First Superseding Indictment as to Mr. Bennett. Order [80] at 2.

At the close of trial, the jury deliberated on July 28 and 29, 2016, and on July 29, 2016, returned a verdict of guilty as to Ms. Bennett on the charges contained in Counts 1–14 of the First Superseding Indictment, and a verdict of guilty as to Mr. Bennett on the charges contained in Counts 1–6 and 9 of the First Superseding Indictment.

After being granted additional time to do so by the Court, on September 29, 2016, Ms. Bennett filed the present Motion [104] for Judgment of Acquittal or Alternatively, Motion for New Trial Pursuant to Rules 29 and 33 of the Federal Rules of Criminal Procedure. Mr. Bennett filed Motions for Joinder [103], [105], [109], which evidence his joinder in Ms. Bennett's Motion and which essentially seek the same relief. The Government filed Responses [106], [107] in opposition to Defendants' Motions, without the benefit of a transcript. Ms. Bennett filed a Reply [108], in which Ms. Bennett recited sections of the trial transcript, and Mr. Bennett joined [109].

On October 21, 2016, the Court entered a Text Order directing the Government to respond on or before October 31, 2016, to the specific citations to the record contained in Ms. Bennett's Reply [108]. On October 27, 2016, the Government filed a Motion [122] for Extension of Time, requesting until November 8, 2016, to respond. The Court granted the Government's Motion [122] by Text Order entered on October 28, 2016.

On October 29, 2016, the Government filed its Response [123], which does not specifically address all of the record citations set forth in the Reply [108]. Nor did the Government cite any legal authority in the majority of the sections of its Reply [108]. However, the Government's lack of response as to all of the issues raised by Defendants does not preclude the Court's review of these issues. United States v. Gallardo–Trapero , 185 F.3d 307, 321 (5th Cir. 1999) (quoting United States v. Rosa , 434 F.2d 964, 966 (5th Cir. 1970) ).

Defendants contend that the Court should set aside their convictions or order a new trial for the following reasons:

(1) The Court erred in failing to grant Defendants' Motions for Judgment of Acquittal at the close of the Government's case-in-chief;

(2) The Court erred in omitting certain jury instructions;

(3) The Court erred by not granting Ms. Bennett's Motion to Quash the Indictment for Prosecutorial Misconduct;

(4) The Court erred in denying Ms. Bennett's ore tenus and written Motions for Mistrial;

(5) The Court erred in denying Ms. Bennett's Motion to obtain a pretrial deposition;

(6) The Court erred in denying Ms. Bennett's Motion for permission to enter a medical storage facility to secure evidence;

(7) As for Counts 12, 13, and 14 of the First Superseding Indictment [42], the Court erred in instructing the jury in the disjunctive, rather than the conjunctive, under 18 U.S.C. § 153(a) ;

(8) Prosecutorial misconduct in the prosecutor's opening and rebuttal closing arguments mandates a judgment of acquittal or a new trial;

(9) The verdict should be set aside or a new trial granted because of alleged deficiencies in the discovery provided by the Government;

(10) The Court exhibited judicial bias; and

(11) Defendants have acquired new evidence, specifically the testimony of Anita Bonner Cotton.

Having considered Defendants' Motion on the merits, Defendants are not entitled to the relief they seek.

II. DISCUSSION

A. Relevant legal authority

Federal Rule of Criminal Procedure 29(c)(1) provides that a defendant may move for judgment of acquittal, or renew such a motion, after the jury returns a guilty verdict. See Fed. R. Crim. P. 29(c)(1). "[A] motion for a judgment of acquittal is a challenge to the...