United States v. Chin

15 F.4th 536

UNITED STATES of America, Appellee,

v.Kathy S. CHIN, Defendant, Appellant.

United States of America, Appellee,

v.Michelle L. Thomas, Defendant, Appellant.

No. 20-1050

No. 20-1051

United States Court of Appeals, First Circuit.

October 6, 2021

Joan M. Griffin for appellant Kathy S. Chin.

Michael Bourbeau, with whom Bourbeau & Bonilla, LLP, was on brief, for appellant Michelle L. Thomas.

Randall E. Kromm, Assistant United States Attorney, with whom Andrew E. Lelling, United States Attorney, was on brief, for appellee.

Before Howard, Chief Judge, Lynch and Barron, Circuit Judges.

BARRON, Circuit Judge.

These consolidated appeals, like other appeals that we have recently resolved, arise out of the federal criminal investigation into the New England Compounding Center ("NECC"). See United States v. Carter, Nos. 19-1644 and 19-1645, 15 F.4th 26 (1st Cir. Sep. 27, 2021) ; United States v. Stepanets (Stepanets II ), 989 F.3d 88 (1st Cir. 2021), United States v. Cadden, 965 F.3d 1 (1st Cir. 2020), United States v. Chin, 965 F.3d 41 (1st Cir. 2020). NECC was a compounding pharmacy located in Framingham, Massachusetts. The federal criminal investigation into its practices ensued in 2013, after the company distributed a contaminated medication that led to illnesses and deaths of patients across the country. See Cadden, 965 F.3d at 6.

The defendants before us are Kathy Chin and Michelle Thomas, each of whom worked at NECC. Neither is charged with playing any role in compounding the contaminated medication that led to the tragedy. But, each was tried and convicted of multiple counts of introducing through their work at NECC "misbranded" drugs into interstate commerce with the intent to defraud or mislead. See 21 U.S.C. §§ 331(a), 333(a)(2), 353(b)(1). They now appeal the convictions. We affirm.

I.

The following facts are not in dispute. Chin and Thomas were licensed pharmacists who worked in the packing area at NECC. Chin worked there from about November 2010 until October 2012. Thomas replaced Chin during Chin's parental leave and worked there between March and August 2012.

Chin and Thomas were among fourteen individuals -- including Barry Cadden, NECC's founder and president; Glenn Chin,¹ NECC's supervising pharmacist; and ten others affiliated with NECC -- who were charged in December 2014 in a 131-count indictment in the District of Massachusetts.² The charges against Chin and Thomas were brought for their alleged violations of the Federal Food, Drug, and Cosmetic Act ("FDCA").

The FDCA prohibits, among other things, "[t]he introduction or delivery for introduction into interstate commerce of any ... drug ... that is ... misbranded." Id. § 331(a). It further provides that "[t]he act of dispensing" certain drugs without a written or oral prescription by a licensed practitioner "shall be deemed to be an act which results in the drug being misbranded while held for sale." Id. § 353(b)(1).

A violation of § 331 is a misdemeanor. Id. § 333(a)(1); see also 18 U.S.C. § 3559(a)(6). A violation of that section that is carried out with the intent to defraud or mislead is a felony. 21 U.S.C. § 333(a)(2) ; see also 18 U.S.C. § 3559(a)(5).

The indictment charged Chin with four counts, and Thomas with two, of introducing "misbranded" drugs into interstate commerce "with the intent to defraud and mislead" in violation of §§ 331(a) and 353(b)(1). Chin and Thomas filed a joint motion -- along with another defendant, Alla Stepanets, who also had worked at NECC and was charged with the same "misbranding" offense -- to dismiss the counts regarding that offense that each faced. See United States v. Stepanets (Stepanets I ), 879 F.3d 367, 371 (1st Cir. 2018).

The motion argued, among other things, that the indictment alleged that the defendants had merely "worked in the packing area" of NECC "checking orders" prior to shipment of the drugs at issue. Id. at 374 (quotation marks omitted). The motion argued that, in consequence, the indictment alleged at most that the defendants were "mere shipping clerks" and thus failed to allege that the defendants were responsible for the introduction into interstate commerce of any drugs that qualified as "misbranded" under § 353(b)(1). Id.

The District Court agreed. Id. at 371. Relying on a medical dictionary's definition of the word "dispense," it determined that "a pharmacist dispenses a drug when she acts in her role as a licensed professional to fill (put together) a medical prescription for delivery to a patient." Id. It then concluded that the indictment alleged that the defendants charged in the counts at issue had engaged in conduct that, given its clerical nature, was at most "incidental" to the "dispensing" of the drugs at issue. Id. Accordingly, the District Court granted the joint motion to dismiss the charges. See id. The District Court then also denied the government's motion to reconsider. See id.

The government appealed from the District Court's dismissal of the charges. See id. at 376. We reversed. Id. We explained that "the allegations in the indictment [were] sufficient to apprise the defendant[s] of the charged offense." Id. at 372. We reasoned that:

the indictment says that each of them (1) was ‘a pharmacist licensed ... to dispense drugs pursuant to a valid prescription from a valid medical practitioner,’ (2) ‘was employed as a pharmacist at NECC,’ and (3) had caused misbranded drugs to be delivered into interstate commerce -- allegations that hardly suggest that they labored at NECC as mere shipping clerks.

Id. (alteration in original).

We further explained that, although the defendants insisted that the government did not dispute that their "role checking orders in the shipping department was limited to confirming that the correct drugs were being sent to the correct facility and did not include checking the prescriptions or patient names or any other aspect of the dispensing process," the government in fact did dispute that the defendants' roles were so limited. Id. at 374. The government argued, we explained, that the allegations in the indictment -- when viewed "in context and with common sense -- connote the kind of checking that pharmacists regularly do when filling prescriptions, i.e., confirming that legit prescriptions triggered the drug shipments." Id. Accordingly, we held that the issue of whether the "dispensing" element of the offense that had been charged could be established was a question of fact to "be resolved at trial rather than on pretrial motions to dismiss," id., and thus that the District Court's order dismissing the charges had to be reversed, id. at 376.

On remand, the District Court severed Chin's and Thomas's counts from those of any of the other defendants to prevent "the prejudicial spillover of hearsay evidence." Chin and Thomas were then tried jointly on the charges that each faced.

The trial commenced in April 2019. It lasted four days. The jury found Chin and Thomas guilty of the counts that each faced.

Chin and Thomas each then moved under Rule 29 of the Federal Rules of Criminal Procedure for a judgment of acquittal or, in the alternative, for a new trial under Rule 33, on each of the counts for which each had been found guilty. The District Court denied the motions and entered judgments of convictions for those counts.

The District Court sentenced Chin to two years of probation and Thomas to one year of probation. Chin and Thomas then filed these timely appeals, which were then consolidated.³

II.

We begin with Chin's and Thomas's contentions that each of their respective convictions must be reversed, because none is supported by sufficient evidence. We review preserved sufficiency challenges de novo. See United States v. Celaya-Valenzuela, 849 F.3d 477, 487 (1st Cir. 2017).

In undertaking that review, we must consider the evidence in the record in the light most favorable to the verdict. Cadden, 965 F.3d at 10. We may reverse convictions on sufficiency grounds "only if we conclude that, reading the record as a whole in that light, no rational jury could have found that the government proved" the elements of the offense beyond a reasonable doubt. Stepanets II, 989 F.3d at 95 ; see also United States v. Tanco-Baez, 942 F.3d 7, 15 (1st Cir. 2019). As we will explain, we see no basis for reversing the convictions that are at issue here on the ground that they are not supported by sufficient evidence.

A.

Chin and Thomas each contends, chiefly, that her convictions must be reversed because no reasonable juror could have found beyond a reasonable doubt that she violated §§ 331 and 353(b)(1). Chin and Thomas each set forth a number of distinct grounds for so concluding. None of these grounds has merit.

1.

Chin contends that she can be convicted of violating §§ 331 and 353(b)(1) only if the evidence suffices to show that "she herself ... had a duty to check the prescriptions, caused the drugs to be dispensed without prescriptions and w[as] negligent in failing to stop the[ir] delivery into interstate commerce." She then contends that it does not.

We faced a very similar contention in Stepanets II. There, a defendant was similarly charged with violating §§ 331 and 353(b)(1). We explained that, given the text of those two FDCA provisions, it was hardly clear that the government had to prove as much as the defendant contended that it did. See 989 F.3d at 95. We nonetheless explained that, even if we assumed otherwise, the evidence in the record sufficed to uphold the convictions. Id. at 95-96. We follow that same approach here, given what the record reveals.

As Chin describes the record, it shows at most that she performed the role of a shipping clerk who was responsible merely for matching drugs in shipments to the addresses of their intended destinations. To bolster this argument, she highlights evidence in the record that she contends shows both that NECC "split up" the "process of filling an order" between departments within the company and that her...