United States v. Lyle, 12–30389.

• Decision Date: 05 February 2014
• Docket Number: No. 12–30389.,12–30389.
• Citation: 742 F.3d 434
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Kenyon Neal LYLE, Jr., Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

742 F.3d 434

UNITED STATES of America, Plaintiff–Appellee,

v.Kenyon Neal LYLE, Jr., Defendant–Appellant.

No. 12–30389.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted Nov. 8, 2013.

Filed Feb. 5, 2014.

Jeffry Keith Finer, Spokane, WA, for Defendant–Appellant.

Alexander C. Ekstrom, Assistant United States Attorney, Yakima, WA, for Plaintiff–Appellee.

Appeal from the United States District Court for the Eastern District of Washington, Edward F. Shea, Senior District Judge, Presiding. D.C. No. 2:10–cr–06070–EFS–1.

Before: MARY M. SCHROEDER, RICHARD A. PAEZ, and MARSHA S. BERZON, Circuit Judges.

OPINION

BERZON, Circuit Judge:

Kenyon Lyle was indicted on two counts of violating 18 U.S.C. § 1365(a), which prohibits “tamper[ing] with any consumer product that affects interstate or foreign commerce, or the labeling of, or container for, any such product....” Lyle moved to dismiss these counts pursuant to Federal Rule of Criminal Procedure 12(b)(3)(B), asserting that the conduct alleged in the indictment did not constitute “tamper[ing]” within the meaning of § 1365(a). The district court denied the motion to dismiss. We affirm.

I.

Lyle worked as a pharmacist at a Safeway in Kennewick, Washington. After a customer filed a police report alleging she had purchased an empty box of Fentanyl patches,¹ the pharmacy was investigated, and twelve additional empty boxes were discovered. The investigation turned to Lyle, and he was charged with, inter alia, tampering with a consumer product in violation of § 1365(a). Specifically, the indictment alleged that Lyle:

with reckless disregard for the risk that another person would be placed in danger of bodily injury, and under circumstances manifesting extreme indifference to such risk, did tamper with a consumer product that affected interstate and foreign commerce, specifically Fentanyl, and with the labeling of and container for such a product by opening the manufacturer's box containing Fentanyl patches, by removing said Fentanyl patches, by re-gluing said manufacturer's box and returning said manufacturer's boxes to a secured narcotics storage cabinet, all in violation of Section 1365(a) of Title 18 of the United States Code.

Lyle moved to dismiss these counts for failure to state an offense. The district court denied the motion, reasoning that the indictment charged Lyle “not only with tampering with the patches, but also tampering ‘with the labeling of and container for ’ the Fentanyl patches, and it allege[d] facts that constitute tampering with the patches' containers.” The district court concluded that “[t]he charged conduct thus tracks the language of § 1365(a), which ends the Court's Rule 12 inquiry.”

Lyle entered a guilty plea, and was sentenced to 48 months in prison. He reserved the right to appeal the district court's denial of his motion to dismiss the tampering charges.

II.

We review de novo the denial of Lyle's motion to dismiss the indictment on the basis of the district court's interpretation of § 1365(a). See United States v. Boren, 278 F.3d 911, 913 (9th Cir.2002). “In ruling on a pre-trial motion to dismiss an indictment for failure to state an offense, [we are] bound by the four corners of the indictment.” Id. at 914. We “must accept the truth of the allegations in the indictment in analyzing whether a cognizable offense has been charged.” Id.

Lyle asks us to reverse the district court's holding that the indictment sufficiently alleged “tamper[ing]” within the meaning of § 1365(a). He contends that the alleged acts of “opening” the box and “removing” the Fentanyl patches “support no more than a theft[,]” and “re-gluing” the box and “returning” it to the storage cabinet are “acts of ... concealment”—not tampering. Because theft of a consumer product does not constitute “tamper [ing]” under § 1365(a), Lyle urges us to hold that the indictment failed to state an offense. We decline to do so.

Section 1365(a) punishes “[w]hoever, 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 or foreign commerce, or the labeling of, or container for, any such product....” There are thus three distinct ways to violate § 1365(a): (1) by “tamper[ing]” with a consumer product; (2) by “tamper[ing]” with the labeling of a consumer product; or (3) by “tamper[ing]” with the container for a consumer product. Congress did not define the term “tamper[.]” See18 U.S.C. § 1365(h).

When a term is undefined, we first ask “whether the ‘ordinary, contemporary, [and] common meaning’ of the language answers the question.” United States v. Thompson, 728 F.3d 1011, 1015 (9th Cir.2013) (alteration in original) (citation omitted). In interpreting the plain language of a statute, we “constru[e] the provisions of the entire law, including its object and policy, to ascertain the intent of Congress.” Boren, 278 F.3d at 914–15. But where “the language is ambiguous or is capable of more than one reasonable interpretation, we ‘consult the legislative history, to the extent that it is of value, to aid in [the] interpretation.’ ” Thompson, 728 F.3d at 1015 (citation omitted).

A.

Lyle asserts that “Congress intended the term ‘tamper’ to mean either an adulteration of the contents or an alteration of its container or labeling.” He offers several dictionary definitions in support of his interpretation. The two definitions provided by Black's Law Dictionary best illustrate the disagreement between the parties.The first definition is “[t]o meddle so as to alter (a thing); esp., to make changes that are illegal, corrupting, or perverting.” Tamper Definition, Black's Law Dictionary 1592 (9th ed.2009). Lyle would have us adopt this definition. The government advocates for a second, broader definition: “[t]o interfere improperly; to meddle.” Id.

Both definitions are well supported. The Oxford English Dictionary, for example, defines “tamper” as both “[t]o have to do or interfere with improperly; to meddle with (a thing),” and “[t]o meddle or interfere with (a thing) so as to misuse, alter, corrupt, or pervert it.” Tamper Definition, http:// www. oed. com/ (last visited Dec. 27, 2013). The American Heritage Dictionary defines “tamper” as “to interfere in a harmful or disruptive manner; meddle[,]” “[t]o make alterations or adjustments, especially secretly so as to subvert an intended purpose or function[,]” “[t]o tinker rashly or foolishly[,]” and “to alter improperly”—thus encompassing both a broader “interfere” or “tinker” and a narrower “alter” meaning. Tamper Definition, http:// www. ahdictionary. com/ (last visited Jan. 7, 2014). The Merriam–Webster Dictionary refers to the criminal charge of “tampering with consumer products” as an example of its fourth definition: “to render something harmful or dangerous by altering its structure or composition.” Tamper Definition, http:// www. m- w. com/ dictionary/ tamper (last visited Dec. 27, 2013).

Thus, although relevant sources support the narrower definition advocated by Lyle, dictionaries alone fail to provide a single “ordinary, contemporary, [and] common” definition of “tamper[ing]” within the meaning of § 1365(a). Thompson, 728 F.3d at 1015. Mere meddling with a consumer product or its packaging could be sufficient to establish “tamper[ing]”; but “tamper[ing]” could also mean that a defendant must meddle in a way that alters or adulterates the product or its packaging. We therefore consider the legislative history of § 1365(a), as well as “its object and policy, to ascertain the intent of Congress.” Boren, 278 F.3d at 914–15.

B.

The Federal Anti–Tampering Act was enacted in 1984, in the wake of a series of deaths resulting from consumers ingesting Tylenol laced with cyanide. See S.Rep. No. 98–69, at 3 (1983); H.R.Rep. No. 98–93, at 3 (1983), 1983 U.S.C.C.A.N. 1257. Congress assumed that the deaths occurred because “one or more persons purchased the capsules, tampered with them, reinserted the capsules into the bottles and boxes in which they were sold, and then surreptitiously placed them on the store shelves from which the victims purchased them.” S.Rep. No. 98–69 at 4. As a result of the cyanide poisonings, the manufacturer of Tylenol suffered serious damage to its business, and copycat crimes were reported, including false tampering claims that scared consumers. Id.

The Senate and House both took up the anti-tampering cause. The Senate's version of the bill, Senate Bill 216, originally applied to “[w]hoever, with intent to kill, injure or otherwise endanger the health or safety of any person or to cause significant damage or injury to the business of an individual ... tampers with and thereby taints, or tampers with and thereby renders materially false or misleading the labeling of ... or container for ... any household product....” S. 216, 98th Cong. (1983) (emphasis added). This version of the bill reflected the understanding that any tampering had to cause a change in the product or its packaging. Indeed, the Senate Report specifically adopted the following, narrow definition of “tamper”:

“Tamper” is a word of common usage and of general understanding.... It is defined in Webster's New International Dictionary (Merriam), 2nd Edition as: “3. To meddle so as to alter a thing; esp. to make corrupting or perverting changes, as to tamper with a document or a text; to interfere with improperly.” The term “tamper,” when used in a criminal statute “has the limited meaning of improper interference ‘as for the purpose of alteration, and to make objectionable or unauthorized changes.’ ”

S.Rep. No. 98–69 at 7 (quoting State v. Harlston, 565 S.W.2d 773, 778–79 (Mo.App.1978)) (emphasis added). Senate Bill 216 passed the Senate on May 9, 1983 by a voice vote. See 129 Cong. Rec. 11,510 (1983).

The House then took the bill under consideration, and amended subsecti...