United States v. Wiginton ( 2000 )

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This order and judgment is not binding precedent, except under the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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