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United States v. Lovin

October 30, 2009


The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court

Order Denying Defendants' Rule 29 Motions for Acquittal

All defendants orally moved for acquittal pursuant to Fed. R. Crim. Proc. 29 at the close of the government's case-in-chief and again at the close of all evidence. The Court denied these motions in substantial part.*fn1 The defendants have now renewed their motions under Rule 29.*fn2 The government filed an opposition.

A hearing was held before Chief Judge Irma E. Gonzalez on October 15, 2009. Upon review, for the reasons set forth herein, the Court again DENIES defendants' motions.

Legal Standard

In reviewing a motion for judgment of acquittal under Rule 29, the Court must determine whether, "viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Gonzalez, 528 F.3d 1207, 1211 (9th Cir. 2008) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)).


1. Defendant s' renewed argument that the prosecution in this case under the Controlled Substances Act violates due process Defendants renew their argument that the charges against them under the Controlled

Substances Act ("CSA") violate due process because the language of the Act and 21 C.F.R. 1306.04 was not sufficiently clear and precise to give them notice and fair warning that their conduct was unlawful. The Court first addressed defendants' argument in its September 29, 2008 order denying defendants' motion to dismiss on due process grounds. The Court again addressed defendants' arguments during a January 30, 2009 motion hearing, after the passage of the Ryan Haight Act in October of 2008, and again denied defendants' motion. [Transcript of January 30, 2009 hearing, Doc. No. 482, pp. 66-71.]

Due process requires that a person be given fair notice as to what constitutes illegal conduct so that he may conform his conduct to the requirements of the law. United States v. Batchelder, 442 U.S. 114, 123 (1979). As set forth in the Court's September 29, 2008 order, there is an abundance of authority allowing the government to prosecute a non-practitioner under the CSA, where there is evidence the defendant knew the underlying prescription was issued other than for a legitimate medical purpose and other than in the ordinary course of professional practice. In addition, "[t]hat Congress has considered clearer legislation... does not mean that existing laws do not apply...." Quinones, 536 F. Supp. 2d at 273. As a general rule, "the view of a later Congress cannot control the interpretation of an earlier enacted statute." O'Gilvie v. United States, 519 U.S. 79, 90 (1996).

The government proceeded to trial under the theory that the defendants knew the prescriptions flowing through the Affpower network were written and filled outside the ordinary course of professional practice and other than for a legitimate medical purpose. This is the legal standard which courts have routinely applied in cases involving both registrants and nonregistrants. The Court again finds that the government's prosecution of the defendants in this case does not offend due process, and DENIES defendants' motion for acquittal on that ground.*fn3

2. Jeffrey Light's Motion for Acquittal

Defendant Jeffrey Light argues the Court should grant his Rule 29 motion for acquittal on Counts 1, 3, 10, 13, 16, 25, 30, 31, 34, 39, 50, 51, 56 through 59, 67, 70, 73, and 80, because (a) there was insufficient evidence of Light's association with Glass, and of his knowledge of Affpower and online pharmacies, to find the elements of conspiracy to distribute controlled substances beyond a reasonable doubt; (b) there was insufficient evidence that through his websites Light knowingly made false statements or knowingly joined a scheme or artifice to defraud, such that the government failed to demonstrate the elements of conspiracy to commit wire fraud beyond a reasonable doubt; and (c) there was insufficient evidence to prove beyond a reasonable doubt that Light knowingly conspired to distribute misbranded drugs.*fn4

a. Sufficiency of the Evidence to Support Conspiracy to Distribute Defendant

Light argues there was insufficient evidence for a rational juror to find beyond a reasonable doubt all the elements of the offense of conspiracy to distribute controlled substances as charged in Count 1 of the Superseding Indictment. In particular, defendant Light attacks the evidence demonstrating the elements of knowledge and intent.

As the Court instructed the jury,

In order for a Defendant to be found guilty of conspiracy to distribute and dispense controlled substances... the government must prove each of the following beyond a reasonable doubt:

First... there was an agreement between two or more persons to commit at least one crime as charged in count one of the superseding indictment; and Second, the defendant became a member of the conspiracy knowing of at least one of its objects and intending to help accomplish it. [Jury Instruction No. 25; 9th Circuit Pattern Criminal Jury Instruction 8.16 (Conspiracy -- Elements).] The Court further instructed the jury as follows:

The affiliate defendants contend that their actions were done with a good faith belief that the controlled substances were being distributed for a legitimate medical purpose and in the usual course of the professional practice of doctors.

The federal laws at issue in this case subject to criminal punishment only those persons who knowingly distribute controlled substances outside the usual course of professional practice and without a legitimate medical purpose or those persons who aid and abet the distribution of controlled substances knowing that they are being distributed outside ...

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