The opinion of the court was delivered by: Margaret M. Morrow United States District Judge
ORDER DENYING RULE 29 MOTION FOR ACQUITTAL AND RULE 33 MOTION FOR NEW TRIAL
On May 16, 2011, defendant John Allen Wilson was convicted, pursuant to a single count indictment, of tampering with consumer products in violation of 18 U.S.C. § 1365. At the close of the government's case in chief, on May 11, 2011, Wilson moved for acquittal under Rule 29 of the Federal Rules of Criminal Procedure. The court deferred ruling at that time, and Wilson renewed his motion at the close of the evidence on May 12, 2011. The court denied Wilson's motion.
Wilson now moves for a judgment of acquittal under Rule 29, or, in the alternative, for a new trial under Rule 33 of the Federal Rules of Criminal Procedure.*fn1 Wilson contends that there was insufficient evidence presented at trial to convict him, and that the jury was inadequately instructed regarding the essential elements of the offense. The government opposes Wilson's motion.*fn2
Wilson was employed by American Medical Response (AMR), a large ambulance company,*fn3 as a paramedic supervisor from 2006 to August 2008.*fn4 AMR stored morphine and other medications in a safe located in an office next to Wilson's. Wilson and six other supervisors had access to it.*fn5 Wilson testified that, after having sustained a back injury in 2001, he was prescribed the painkiller Vicodin. He took Vicodin for five or six years, until late 2006 or early 2007,*fn6 and became addicted to it.*fn7 At some point, however, his doctor ceased prescribing it for him.*fn8 In late September or early October 2007,*fn9 Wilson felt an acute need to continue using pain relieving medication and "started . . . using the expired narcotics that [AMR] had stored in [the] safe."*fn10 Wilson explained his decision to start using morphine from AMR's safe as follows:
"[A]t the time I had my addiction I was dealing with. I was having tremendous cravings. I was drinking more than I know I should have been. And you know, knowing the -- knowing that the morphine was in there and knowing that . . . morphine is very -- it's related to Vicodin in many ways and has the same effect, and knowing that that morphine was not going to go anywhere except to be destroyed, I started drawing it out of the vials and injecting it into my thigh."*fn11
Wilson testified that he did not need to account for his use of the expired medication because "[t]he drugs that were expired[,] . . . were in [a] Ziploc bag[ ], I believe they had a log, but they weren't really counted. They were just in there to be destroyed. . . . They were only being safeguarded in the safe.*fn12 . . . Nobody really was paying much attention to the bag of expired narcotics that [was] in the safe. And again, there wasn't really any accountability for [the drugs] because they were expired and set to be destroyed. So essentially for the first few months, I was just taking a few vials at [a] time[,] . . . using them on myself and then just discarding the vials themselves."*fn13
After a period of using the expired morphine, Wilson became "highly addicted" to the drug.*fn14
In approximately April 2008, Wilson began feeding his habit by taking
unexpired morphine vials from AMR's safe, because the number of
expired vials was no longer sufficient to meet his needs.*fn15
Wilson explained: "[I]nitially, I was seeking a way of
getting more. I mean doing everything I can, but then I started taking
good narcotics that had good dates on them from the
safe, and I began tampering with them by extracting the narcotic out
of the vials and using it."*fn16
When Wilson used an unexpired vial of morphine, he extracted the contents of the vial with a syringe and replaced its contents with saline, concealing his actions as follows:
"Q: When you first began tampering with the fresh vials, would you take the fresh vial and replace it, or would you doctor the logs?
A: Well, initially I was doctoring the logs.
Q: At some point you decided to do something in addition to doctoring the log? A: Say that one more time.
Q: At some point you decided to tamper with the actual medication. What was your thought process with respect to tampering with the medication?
A: There really wasn't much of a thought process. I was addicted and I needed the drug.
Q: Why did you extract the drug and refill it with saline solution and place it back into the safe?
A: So there would be an account for the amount of medication that was in there. Q: Well, you testified earlier that you were taking the medication and just doctoring the logs. Why did you change from doctoring the logs to refilling a vial with saline solution?
A: It was becoming increasingly difficult to keep track of the narcotics. So I began to extract it and then put them back in the safe and kind of tuck them behind the good stuff to keep them from going out.
Q: When you say keep them from going out, what do you mean?
A: Well, I was -- when I began tampering with fresh vials and then placing them back into the safe, I would put them in a position to where they were behind the good stuff, because most of the time when the supervisors would restock, they would just take right from the front. And because my office was right next door, I was able to keep track of those vials until I was either able to get rid of them and destroy them and alter the log or a fresh order came in and I was able to just pull those out and document the good stuff that's in there.
Q: Did you keep a constant watch as to what was going into the safe and what was going out?
Q: And why did do you that?
A: I was trying desperately to prevent it from going out into the field.*fn17 . . .
Q: Did you intend that the vial would be available for someone to take and bring out to the field?
Q: What, if anything, did you really intend?
A: I intended on eventually pulling those vials out and destroying them when I felt it was an appropriate time so that no one would notice that there was a change and no one would notice what was going on in there, in the safe itself.
Q: And what, if anything, did you do to ensure that those tainted vials [were] not available for distribution going out into the field?
A: Are you talking about the safe itself?
A: I would do -- what I would do is place the stuff that I knew I tampered with behind the other narcotics so typically when the safe was open, someone would just grab right from the front. And at any one time, we had typically 2 to 4 hundred vials of morphine in there, and usually whether a supervisor would restock, it would only be maybe 10, 12 vials at a time, and they would just take right from the front.
Q: How often would you say that you arranged, so to speak, the vials that --
A: Constantly. I have to -- let me clear that a little bit. Constantly meaning I was in the safe assuring they were there. But the safe was accessed pretty rarely from the supervisors because morphine and Versed really aren't used as often as people think out in the field.*fn18 . . .
Q: And how often would you keep a watch over the safe to make sure that those vials that you had tampered with did not make it out?
A: Almost every day."*fn19
Wilson emphasized that he was "constantly . . . at fear"*fn20
that the morphine vials with which he had tampered would make
it in the field, and into an ambulance servicing the public. Wilson
testified that he ultimately decided to confess to his supervisor, Dr.
Charles Dreshen, that he had been tampering with the morphine vials in
the AMR safe because he "was feeling horrendous guilt and stress over
the potential of medications going out into the field that had been
tampered with that [he] knew were still in the safe."*fn21
He stated that he "did everything in [his] power" to assure
that tampered vials did not reach the public.*fn22
On cross examination, Wilson testified that, despite his efforts to ensure that no tampered vials reached the public, he could not be certain that he had successfully prevented the vials from being stocked on ambulances. He conceded he knew there was a risk that some members of the public had been, or could have been, harmed by receiving saline instead of morphine at a moment when they were in need of pain relief:
"Q: During [June and July 2008], would you [say] that you were concerned on a regular basis about the possibility of danger to the patients from this tampering. . . ?
A: I was concerned [that] the vials that I tampered with getting out to the field. . . .*fn23
Q: So you were cognizant of th[e] risk that the vials would get out to the field.
A: I was cognizant of the possibility of them making it out there, and it was my belief that at ...