Product tampering affects interstate commerce

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The Seventh Circuit held on Feb. 10 that, under the supply and demand theory of the Commerce Clause, tampering with a consumer product, in violation of 18 U.S.C. 1365, affects interstate commerce.

Jon Riley Hays practiced medicine in rural Illinois. In early 2000, he was involved in a car accident which caused injury to his back. He began taking OxyContin to relieve his pain and became addicted to the drug. Although the recommended oral dosage was 20 to 40 mg per day, Hays would often inject approximately 300 mg of the drug in a day.

To gain access to such a large amount of OxyContin, Hays prescribed it to his patients and then stole the drug from them during house calls. The government’s theory is that he crushed the OxyContin tablets, dissolved the particles in a syringe, and injected the patient with only a portion of the dissolved drug. He would then leave with a syringe filled with the drug and some of the remaining tablets for his own use.

Hays denies that he injected patients with the dissolved OxyContin, claiming that he broke pills in half or prescribed more of the drug than the patient needed so that he could take some of the pills for himself. He also injected some patients with a placebo so that he could inject the entire dosage of OxyContin into himself.

Hays was charged in federal court with tampering with a consumer product, in violation of 18 U.S.C. 1365(a)(4), and possession of a controlled substance by misrepresentation or fraud, in violation of 21 U.S.C. 843(a)(3). Hays pleaded guilty and was sentenced to fifty-one months imprisonment.

Hays then sought relief under 28 U.S.C. 2255, claiming that his attorneys provided ineffective assistance of counsel. The district court denied the motion, and Hays appealed. The Seventh Circuit affirmed in a decision by Judge Michael S. Kanne.

Commerce Clause

Hays claimed that his plea to the tampering charge was not intelligently made, because his conduct failed to satisfy the interstate commerce element of the statute.

Section 1365(a)(4) provides, "Whoever, 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 or foreign commerce . . . [shall] be fined under this title or imprisoned not more than ten years, or both."

Hays relied on a Tenth Circuit case, United States v. Levine, 41 F.3d 607, 614 (10th Cir. 1994), in which the court held, "the effect on interstate commerce must occur at or after the tainting." The court in Levine noted that "the interstate commerce requirement is phrased in the present tense." Id. Therefore, it should be read to penalize one who tampers with a product that "affects interstate commerce."

The Tenth Circuit concluded, "the consumer product must have either a present effect or an effect in the future, and appears to exclude pre-tainting events." Id.

The only evidence at the guilty plea hearing on the interstate commerce element was that OxyContin is manufactured in Minnesota and the tampering occurred in Illinois. Hays maintained this was insufficient, and that there must be a finding that the drug had an effect on interstate commerce after Hays gained access to the OxyContin at the homes of his patients.

The Seventh Circuit rejected the argument, relying instead on an Eighth Circuit case, United States v. Moyer, 182 F.3d 1018 (8th Cir. 1999). In that case, the court reasoned that when a nurse stole morphine, she depleted the supply of morphine and caused more to be ordered. The morphine that was ordered traveled in interstate commerce. Under this reasoning, when a drug is manufactured outside the state, the law of supply and demand can support a violation of Sec. 1365(a). Moyer, 182 F.3d at 1021.

The court also noted its prior decision in United States v. Cunningham, 103 F.3d 553 (7th Cir. 1996), in which a nurse stole Demerol from a locked cabinet and replaced the drug with saline. The court observed, "The court did not discuss the interstate commerce element in upholding Cunningham’s conviction under sec. 1365, but the case can be read to state implicitly that the timing of the tampering is irrelevant."

Turning to the facts, the court concluded, "Hays does not deny that he tampered with OxyContin. By breaking pills, injecting saline, and stealing up to half of the drugs he prescribed, he denied patients who were dying of cancer their pain medication. Because of the prescriptions he wrote to facilitate his use of the drug, pharmacies in Illinois were required to order more OxyContin from Minnesota to replenish their supplies. Under the supply and demand theory, this is enough to support a violation of sec. 1365(a)."

Accordingly, the court found that his guilty plea to the charge was intelligently entered, and affirmed on this issue.

Plea Consequences

Hays also claimed that he was denied effective assistance of counsel, because his attorney misrepresented the consequences of pleading guilty, and going to trial.

Hays claimed that counsel informed him that, if he did not plead guilty, the prosecutors would "de-stack" the charges against him and he might have to spend 10 t
o 20 years in prison. Hays says he was told that if he did accept the plea agreement, he would probably receive a very short sentence or possibly just probation because the prosecutors would not oppose a one-third reduction of the sentence and he would be eligible for a drug program which would further reduce his sentence. In fact, because the tampering charge is classified as a violent cirme, he is ineligible for the drug program.

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Nevertheless, the court concluded that counsel’s advice to Hays was not objectively unreasonable. The court found, "Had Hays gone to trial, his sentence could have been substantially higher. Because of his plea, the court granted a three-level downward departure for acceptance of responsibility under U.S.S.G. 3E1.1(a), (b).

Without this departure, Hays’s sentence would have been between seventy and eighty-seven months. Although it is true that counsel and the court thought that Hays would be eligible for a drug program, Judge Herndon made it clear at the hearing that neither he nor the attorneys had any control over that decision."

Finally, the court found that Hays’ pleas were voluntary, even though the government had threatened to add charges if he did not plead guilty, concluding, "He had a difficult decision to make, and he must now live with the consequences of that decision."

Accordingly, the court affirmed the denial of Hays’ sec. 2255 motion.

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David Ziemer can be reached by email.