                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 98-1981
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        *    Appeal from the United States
      v.                                *    District Court for the District
                                        *    of Minnesota.
Nancy Lynne Moyer,                      *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: October 20, 1998

                                  Filed: July 23, 1999
                                   ___________

Before FAGG, BEAM, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                           ___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

       Dr. Nancy Lynne Moyer stole morphine from the intravenous (IV) units of four
patients who were under her care in the Intensive Care Unit of Methodist Hospital. On
each occasion, Dr. Moyer inserted a hypodermic needle and syringe into the patient's
morphine delivery device, removed some of the morphine, and replaced the stolen
morphine with saline solution.

      Based on this conduct, a jury convicted Dr. Moyer of four counts of tampering
with a consumer product, see 18 U.S.C. § 1365(a)(4). The jury also convicted
Dr. Moyer of six counts of obtaining a controlled substance through fraud, see 21
U.S.C. § 843(a)(3), for her use of forged prescriptions to obtain various narcotics. See
United States v. Moyer, 985 F. Supp. 924 (D. Minn. 1997). On appeal, Dr. Moyer
challenges the application of the tampering statute to her conduct, the sufficiency of the
evidence to sustain her convictions for tampering, and the trial court's application of the
federal sentencing guidelines to her case. We affirm the judgment of the trial court.1

                                            I.
       The tampering statute, see 18 U.S.C. § 1365(a), imposes criminal sanctions on
anyone who, "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 ...
commerce." Although Dr. Moyer admits that she stole morphine from her patients' IV
units, she contends that her conduct did not fall within the scope of this statute. She
relies on the legislative history of § 1365(a) to argue that Congress intended the term
"tampers" to include a malicious-intent requirement, that is, the performance of a
malicious act that renders a consumer product dangerous. Dr. Moyer thus argues that
her convictions should be set aside because no evidence was adduced at trial that she
acted with a specific intent to harm when she tampered with her patients' IV units.

       We decline to read such a requirement into the statute, for we find no ambiguity
whatsoever in its language. See King v. Ahrens, 16 F.3d 265, 271 (8th Cir. 1994)
("[when] 'the plain language of a statute is clear in its context, it is controlling' "),
quoting Blue Cross Association v. Harris, 622 F.2d 972, 977 (8th Cir. 1980). The
statute itself specifies the mental state required: A tamperer must act with "reckless
disregard" and "extreme indifference" to the risks of death or bodily injury in which his
or her act is placing another person.


      1
      The Honorable David S. Doty, United States District Judge for the District of
Minnesota.

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       We agree with the trial court, moreover, that in the context of this statute, the
term "tampers" merely describes the physical act of product adulteration. A defendant's
state of mind is not relevant to the ordinary meaning of the term, especially where, as
here, other terms in the statute set forth the requisite state of mind in such a clear and
unambiguous fashion. See United States v. Jones, 965 F.2d 1507, 1520 (8th Cir.
1992), cert. denied, 506 U.S. 924, 965 (1992), 508 U.S. 941 (1993) (where term is not
defined by statute, it should be given its ordinary meaning). Under the plain language
of § 1365(a), therefore, the government was required to prove only that Dr. Moyer
tampered with her patients' IV units, and that she did so with reckless disregard and
extreme indifference for the risk of death or bodily injury in which she placed her
patients.

                                           II.
      The statute specifically requires that the government prove an effect on interstate
commerce as an element of the offense of tampering with a consumer product. See 18
U.S.C. § 1365(a). Dr. Moyer contends that the trial court should have granted her
motion for a judgment of acquittal, see Fed. R. Crim. P. 29(c), on the tampering counts
because the government failed to meet its burden of proof on this issue. We disagree.

       A motion for a judgment of acquittal should be denied where the evidence,
viewed in the light most favorable to the government, is such that a reasonable jury
could have found each of the essential elements of the crime beyond a reasonable
doubt. See United States v. Hood, 51 F.3d 128, 129 (8th Cir. 1995), and United States
v. Huntsman, 959 F.2d 1429, 1436-37 (8th Cir. 1992), cert. denied, 506 U.S. 870
(1992). After carefully reviewing the record, we believe that there was sufficient
evidence from which a reasonable jury could find that Dr. Moyer’s tampering with her
patients’ IV units had an effect on interstate commerce.

       The evidence at trial tended to show that Methodist Hospital purchases
additional morphine from a Minnesota supplier when its supply drops below a certain

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level, and that the morphine is manufactured outside Minnesota and shipped to the
Minnesota supplier in response to orders. Witnesses testified that the morphine IV
units of two patients began to leak after Dr. Moyer tampered with them, and that nurses
had to replace those units with new units containing additional morphine for those
patients. Methodist’s pharmacist, moreover, testified that she ordered additional
morphine to replace depleted supplies just a few days after Dr. Moyer had committed
four of her six acts of tampering.

       Based on this evidence, we think that a reasonable jury could find that
Dr. Moyer’s illicit use of her patients’ morphine contributed to the depletion of the
hospital’s morphine supply, which in turn required the hospital to order additional
morphine. Because that morphine necessarily traveled to Minnesota from out-of-state
manufacturers, we believe that a reasonable jury could find that Dr. Moyer’s tampering
affected interstate commerce.

       Dr. Moyer contends that her use of the morphine had no effect on interstate
commerce because the same amount of morphine would have been used whether the
patients or Dr. Moyer herself consumed it. In other words, Dr. Moyer appears to argue
that the government must prove that her tampering resulted in an incremental drop in
supply over and above the reduction that would have resulted from her patients’ normal
use of the morphine. We disagree.

        While it may be true that the patients’ use of the morphine would have resulted
in the very same depletion of the hospital’s supply, such speculation is irrelevant to our
analysis here. The fact remains that Dr. Moyer stole the morphine from her patients
before they could use it themselves, and the reduction in supply was thus a result of her
actions and not theirs. The subsequent effect on interstate commerce, therefore, was,
as a matter of fact, a result of Dr. Moyer’s theft of the morphine from her patients’ IV
units. We thus conclude that there was sufficient evidence from which the jury could
find that Dr. Moyer’s tampering had an effect on interstate commerce.

                                           -4-
                                           III.
       Dr. Moyer also contends that the evidence at trial was insufficient to support the
jury’s finding that she acted "with reckless disregard," see 18 U.S.C. § 1365(a). On
the contrary, we think that there is ample evidence in the record to support the jury’s
finding that Dr. Moyer acted with reckless disregard of the serious health risks to which
her actions exposed her critically ill patients. Expert witnesses testified that
Dr. Moyer’s actions created risks for her patients of increased pain, agitation, infection,
and air embolism. Dr. Moyer herself testified at trial that she was aware at the time of
the tamperings that her actions might be creating health risks for her patients.

        There is also ample evidence in the record to support the jury’s finding that
Dr. Moyer acted with "extreme indifference," id., to the risks that her conduct created
for her patients. For example, the evidence at trial established that Dr. Moyer stole
morphine on two separate occasions from the IV unit of an elderly patient who was
dying of lung disease and was receiving morphine for “comfort care,” that is, to ease
her pain and agitation through the dying process. Witnesses testified that shortly after
Dr. Moyer’s first theft of the patient's morphine supply, nurses found the patient
“awake and yelling” and replaced the leaking IV unit. The patient’s daughter testified
that she spoke to Dr. Moyer later that day and implored her to “do something” about
her mother’s inadequate sedation; Dr. Moyer assured her that she would correct the
matter and would ensure that the mother did not suffer. Less than a day after making
those promises to the daughter, Dr. Moyer stole morphine from the mother’s new
morphine IV unit. We have no doubt whatsoever that such egregious behavior provides
overwhelming support for the jury’s finding that Dr. Moyer acted under circumstances
manifesting extreme indifference to the risk of pain and suffering to which her actions
exposed the mother. There is, moreover, similarly sufficient evidence in the record to
sustain the jury's finding of extreme indifference regarding the risks to which her
actions exposed the other three patients.




                                           -5-
                                           IV.
       Dr. Moyer objects to various jury instructions that described the elements that
the government was required to prove to establish Dr. Moyer's criminal liability for
tampering with consumer products. Those instructions, however, closely track the
language of the statute and the relevant case law. We therefore find no error in the trial
court's instructions.

                                            V.
        At her sentencing, Dr. Moyer requested a downward departure from the
applicable guidelines range for convictions under the tampering statute, see U.S.S.G.
§ 2N1.1(a). The trial court denied the request, ruling that Dr. Moyer's conduct fell
within the heartland of the statute and that no downward departure was warranted. We
agree. Application note 1 to § 2N1.1 provides, "In the unusual case in which the
offense did not cause a risk of death or serious bodily injury, and neither caused nor
was intended to cause bodily injury, a downward departure may be warranted." As the
trial court correctly found, the evidence at trial established that Dr. Moyer's actions did
expose her patients to risks of death or serious bodily injury, and this case is thus
typical of the heartland of cases contemplated by the guidelines.

       Finally, Dr. Moyer contends that the trial court erred when it departed upward
from the applicable guidelines range and sentenced her to the statutory maximum of 48
months on each of her convictions for obtaining narcotics through the use of forged
prescriptions. See 21 U.S.C. § 843(a)(3), § 843(d)(1). Because Dr. Moyer's sentences
on the prescription fraud counts run concurrent to, and are shorter than, her 70-month
sentence on each of the consumer product tampering counts, any error in the length of
the sentence imposed is harmless and no remand is necessary. See United States v.
Nguyen, 46 F.3d 781, 783 (8th Cir. 1995).

                                         VI.
      For the foregoing reasons, we affirm the judgment of the trial court.

                                           -6-
A true copy.

      Attest:

         CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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