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United States v. Lockhart

United States District Court, Sixth Circuit

December 18, 2013

UNITED STATES OF AMERICA, Plaintiff,
v.
BEVERLY LOCKHART, Defendant.

MEMORANDUM OPINION AND ORDER

AMUL R. THAPAR, District Judge.

Our system casts the jury, not the Court, as the star of the criminal trial. The jury, not the Court, is charged with weighing the evidence, evaluating the testimony, and sorting the innocent from the guilty. Nor is the Court a more experienced understudy, waiting in the wings to usurp the spotlight in hard cases, or close cases, or even in cases where the Court thinks the jury got it wrong. Only in cases where there was a complete failure of proof may the Court replace the jury's verdict with its own judgment. There was no such failure here, so the jury's verdict must stand.

BACKGROUND

If all the world's a stage, [1] then Eastern Kentucky has the rotten luck of repeatedly hosting plays about oxycodone conspiracies. The first act of this familiar tale's latest iteration began when Dennis Varney, a drug dealer, learned about Dr. Linda Roos. Roos practiced medicine in Houston, Texas, and she was willing to write prescriptions for extraordinary amounts of oxycodone - despite that drug's standing as a highly addictive Schedule II controlled substance. At first, Varney and his associates would travel to see Roos every month. As their relationship became more familiar, Roos required that Varney and the others visit only every other month. Whether they visited or not, Roos would write them prescriptions for alarming numbers of pills each month. At the height of the conspiracy, Roos was prescribing more than 1, 200 oxycodone pills per month to a single patient. Varney and company would fill the prescriptions at the Marrowbone Clinic Pharmacy (the "Pharmacy"), in Pikeville, Kentucky, and then sell the pills on the street.

The curtain began to close on the Varney-Roos conspiracy when the FBI (in an unrelated case) obtained a search warrant for Varney's home. During the search, the FBI found some of the prescriptions that Roos had written for Varney. The quantity of pills she had prescribed raised a red flag for the FBI and sparked an investigation that brought down the entire enterprise. Agents cracked the Varney drug ring in 2011, and one of Varney's associates, Eddie West, agreed to wear a wire into Roos's office. Shortly thereafter, federal officers swept the players off the stage and into federal court. Roos, Varney, and Varney's partners all pled guilty to conspiring to distribute oxycodone.

This case concerns a member of the conspiracy's supporting cast: the Pharmacy's office manager, Beverly Lockhart. Lockhart frequently waited on Varney and his associates. Multiple witnesses testified that Lockhart was especially solicitous of the conspirators' needs: she opened the Pharmacy outside of regular business hours for them; she dispensed pills to them when no pharmacist was present; she allowed them to "borrow" pills against future prescriptions; she would drop whatever she was doing to assist them; and she allowed them to skip the line.

A grand jury charged Lockhart with conspiring to distribute oxycodone as part of the Roos-Varney conspiracy. R. 336. Lockhart denied the charge, and her case proceeded to trial. The jury found her guilty. R. 395. Lockhart now challenges her conviction, arguing that there was insufficient evidence to support the jury's verdict. See R. 393-1.

DISCUSSION

The jury convicted Lockhart of conspiring to distribute oxycodone, in violation of the Controlled Substances Act (the "CSA"). See 21 U.S.C. §§ 801 et seq. The conspiracy charge required the government to prove that Lockhart knowingly joined a conspiracy, the object of which was to violate the CSA. See id. § 846. Proving that medical personnel intended to violate the CSA can be a tricky business. Although the CSA generally prohibits the distribution of controlled substances, see id. § 841(a), it contains an important exception for doctors. See id. § 829. A properly registered doctor may prescribe controlled substances "for a legitimate medical purpose" if he acts "in the usual course of his professional practice." 21 C.F.R. § 1306.04(a). And a pharmacist may fill a doctor's prescription. See id. ; 21 U.S.C. § 829.

But a pharmacist is not automatically immune when she fills a prescription written by a doctor. "The responsibility for the proper prescribing and dispensing of controlled substances is upon the prescribing practitioner, but a corresponding responsibility rests with the pharmacist who fills the prescription." 21 C.F.R. § 1306.04(a). So, if a pharmacist fills a prescription knowing that it was not issued for a legitimate medical purpose and in the usual course of professional treatment, she violates § 841(a). Id. Lockhart was not a pharmacist, but the government pursued a theory of liability that required it to prove (1) that Roos issued the prescriptions illegally, and (2) that Lockhart knew the prescriptions were illegitimate when she distributed the pills to the conspirators. See R. 392 at 4.

Lockhart moved for a judgment of acquittal. R. 393. Her argument is simple: she urges that all the evidence tended to show only that she operated the pharmacy sloppily or in violation of laws other than the CSA. See generally R. 393-1. She insists that the government failed to prove either that Roos issued the prescriptions illegally or - even if she did - that Lockhart knew about it. See id.

Federal Rule of Criminal Procedure 29 requires the Court to enter a judgment of acquittal if the evidence was insufficient to prove the offense charged. A defendant challenging the sufficiency of the evidence "bears a very heavy burden." United States v. Graham, 622 F.3d 445, 448 (6th Cir. 2010) (internal quotation marks omitted). The jury's verdict must stand if, viewing the evidence in the light most favorable to the United States, "any rational trier of fact" could have convicted the defendant. United States v. Stewart, 729 F.3d 517, 526 (6th Cir. 2013).

I. There Was Sufficient Evidence That Roos Issued the Prescriptions Illegally

Lockhart suggests that either expert testimony or direct evidence was required to prove that Roos issued the prescriptions without a legitimate medical purpose and outside the course of her professional practice. R. 393 at 1, 10; R. 431 at 6 ("This Circuit's cases... have required either expert testimony or direct evidence...."). She says that the government presented neither ...


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