                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                        MAR 20 2000
                               TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,
             Plaintiff - Appellee,                      No. 98-6433
 v.                                                 (D.C. No. 98-CR-92)
 CAROLYN C. WIGINTON,                                   (W.D. Okla.)
             Defendant - Appellant.


                          ORDER AND JUDGMENT *


Before TACHA, McKAY, and MURPHY, Circuit Judges.




      After examining the briefs and the appellate record, this panel has

determined unanimously that oral argument would not materially assist the

determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).

The case is therefore ordered submitted without oral argument.

      Defendant-Appellant Carolyn C. Wiginton appeals her convictions for

obtaining possession of morphine by fraud and for possession with intent to

distribute morphine. Defendant was indicted on seven counts of knowingly and


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
intentionally obtaining possession of morphine by misrepresentation, fraud, and

deception in violation of 21 U.S.C. § 843(a)(3) and on nine counts of knowingly

and intentionally possessing morphine with intent to distribute in violation of 21

U.S.C. § 841(a)(1). The counts were based on incidents occurring between

September 29, 1997, and March 10, 1998. Defendant was tried before a jury in

the United States District Court for the Western District of Oklahoma and was

found guilty on all counts. She alleges that the evidence was insufficient to

support the jury’s guilty verdict.



                                         I.

      Defendant was employed as a licensed practical nurse at the Veterans

Administration Medical Center in Oklahoma City, Oklahoma, for over ten years.

During the period between June 1997 and March 1998, Defendant generally

worked the evening shift from 3:00 p.m. to midnight on Six East, the telemetry

floor where cardiac patients were monitored. As part of her responsibility for

patient care, she “passed” or distributed medications in accordance with doctors’

orders. R., Vol. 2 at 22.

      Medications at the hospital were dispensed from a medicine cart that had a

computer and drawers for various medications. To dispense a narcotic drug, a

nurse would enter into the computer both an access code and a verify code, pull


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up the patient’s name, and input the medication needed. The computer would

then indicate how many units of that drug were in the cart. The verify code was

unique to the user who had to change the code every ninety days. A third code, a

signature code also unique to the user, was required to sign out a prescription to a

patient. After entering the necessary codes and information, a nurse removed the

medication from the cart and administered it to the patient or, in some cases, gave

it to another nurse to administer. At the end of each shift, the narcotics on the

cart were counted to ascertain whether the quantities removed matched the

quantities signed out.

      On March 10, 1998, the midnight narcotic count was two Percocet pills

over what it should have been. The night nursing supervisor therefore ran an

activity report and found that ten Percocet pills had been signed out for

administration to one patient, a highly unusual dosage. As part of an internal

investigation, hospital staff subsequently ran an activity report for all of the drugs

on the two carts used on Six East for the period from January 1997 through March

1998. They found 222 entries for unusually high, non-therapeutic doses

beginning in approximately June 1997. All but two entries were under

Defendant’s name. The 222 entries were recorded on approximately ninety

different days. Payroll records showed that Defendant was the only person

working on every shift during which the entries were made, including the shifts


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when the two entries were made under other nurses’ names.

      During the internal investigation, hospital staff examined 162 instances

where an unusual dosage of a narcotic drug was signed out for a patient. The

narcotic drugs involved included Demerol, Percocet, and morphine. The

investigation determined that in no instance were there doctors’ orders for a

narcotic drug in the amount purportedly given and that the patients’ charts had no

notations of the drugs being given in these quantities. Witnesses testified that the

quantities signed out were sometimes so large that administration of those

quantities to the patient would have been lethal. Testimony also indicated that in

some instances the drugs were signed out for patients who had been previously

discharged or who were never admitted.

      Defendant testified at trial that she had not signed out the narcotics at issue

and that she assumed that someone else must have acquired and used her codes to

divert the drugs. She presented evidence that it was possible to acquire the

computer codes of other nurses to gain entry to the computer narcotics program.

See id., Vol. 3 at 279. Co-workers testified that she was a good nurse and that

she did not appear to be under the influence of drugs while working.



                                         II.

      We address Defendant’s arguments with regard to each offense separately.


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We observe, however, that the standard of review is the same with respect to the

jury’s findings on both offenses. “[I]n reviewing the sufficiency of the evidence

to support a jury verdict, this court must review the record de novo and ask only

whether taking the evidence–both direct and circumstantial, together with the

reasonable inferences to be drawn therefrom–in the light most favorable to the

government, a reasonable jury could find the defendant guilty beyond a

reasonable doubt.” United States v. Hanzlicek, 187 F.3d 1228, 1239 (10th Cir.

1999) (quotation omitted). “The jury, as fact finder, has discretion to resolve all

conflicting testimony, weigh the evidence, and draw inferences from the basic

facts to the ultimate facts.” United States v. Anderson, 189 F.3d 1201, 1205

(10th Cir. 1999) (quotation omitted).

      We begin with Defendant’s argument that the evidence was insufficient to

support a guilty verdict for obtaining possession of morphine by fraud. Our

review of the record indicates that evidence was presented from which the jury

could have determined that Defendant fraudulently obtained morphine on the

seven occasions charged in the indictment. In each instance, an unusually large

quantity was signed out under Defendant’s name despite the absence of doctors’

orders for such quantities and in some cases when the named recipient was not in

the hospital. According to the trial testimony, three codes had to be entered to

requisition the narcotics from the medicine carts, two being unique to Defendant.


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While Defendant produced evidence that it may have been possible for another

individual to obtain Defendant’s codes, at least one of the three codes was changed

every ninety days. Based on the number of incidents, the presence of Defendant

on all occasions when these incidents occurred, the length of time during which

the diversions had occurred, and the number of code changes during that time, the

jury could have determined that Defendant took the missing narcotics. The jury

heard and evidently rejected Defendant’s testimony to the contrary. “We do

not . . . second-guess the jury’s credibility determinations . . . . Rather, we must

accept the jury’s resolution of the evidence as long as it is within the bounds of

reason.” United States v. Yoakam, 116 F.3d 1346, 1349 (10th Cir. 1997)

(quotations and citations omitted). We therefore hold that, based on the record

before us, a reasonable jury could have found Defendant guilty beyond a

reasonable doubt on all seven counts of obtaining morphine by fraud.



                                          III.

      We turn now to Defendant’s argument that the evidence was insufficient to

support a guilty verdict on the nine counts of possession of morphine with intent to

distribute. Defendant argues that the government’s only evidence on the issue of

“intent to distribute” was the quantity of morphine diverted and the testimony that

Defendant did not appear to be under the influence of drugs while working.


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Defendant argues that ninety-eight milligrams of morphine could be used by one

person in a week.

      To prove possession with intent to distribute the government must “establish

that [the defendant] knowingly possessed the drug with the specific intent to

distribute it.” United States v. Wood, 57 F.3d 913, 918 (10th Cir. 1995) (citations

omitted). “A large quantity of the drug will support a reasonable inference that a

defendant intended to distribute it.” Id. The rationale for this inference is that a

defendant who possesses more of a substance than usual for personal use intends

to sell, deliver, or otherwise distribute it to someone else. See United States v.

Powell, 982 F.2d 1422, 1430 (10th Cir. 1992); United States v. Gay, 774 F.2d 368,

372 (10th Cir. 1985); United States v. Ortiz, 445 F.2d 1100, 1105 (10th Cir. 1971).

      In the instant case, counts one through nine involved quantities larger than

would be expected for personal use. Counts one to three involved ninety-six

milligrams of morphine diverted within nine days; counts four and five, ninety

milligrams within a week; counts six and seven, ninety milligrams within four

days; and counts eight and nine, seventy-two milligrams within two days. See R.,

Vol. 2 at 37-60. A normal hospital morphine order for pain is one to two

milligrams intravenously every two to three hours. These quantities, especially

when viewed in light of the testimony that these diversions were only nine among

more than 200 during a ten-month time period, were sufficient to give rise to a


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reasonable inference that Defendant did not possess the narcotics for personal use

only. This inference is also buttressed by testimony that Defendant did not appear

to be under the influence of drugs while working and that morphine use in any

amount leads to impaired functioning. See id., Vol. 3 at 109. Having thoroughly

reviewed the record, we conclude that the evidence was sufficient for a jury to find

Defendant guilty beyond a reasonable doubt on the nine counts of possession with

intent to distribute.

       Defendant’s convictions are AFFIRMED.



                                               Entered for the Court


                                               Monroe G. McKay
                                               Circuit Judge




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