COURT OF APPEALS OF VIRGINIA
Present: Judges Huff, Lorish and Callins UNPUBLISHED
Argued at Richmond, Virginia
HARDIK SURESCHCHANDRA PATEL MEMORANDUM OPINION* BY v. Record No. 0201-21-2 JUDGE DOMINIQUE A. CALLINS JULY 12, 2022 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF FREDERICKSBURG Gordon F. Willis, Judge
Jonathan P. Sheldon (Sheldon & Flood, PLC, on briefs), for appellant.
Sharon M. Carr, Assistant Attorney General (Mark R. Herring,1 Attorney General, on brief), for appellee.
Hardik Sureschchandra Patel appeals his convictions for eight counts of distributing a
Schedule I or II controlled substance, one count of distributing a Schedule III controlled
substance, and eight counts of distributing a Schedule IV controlled substance under Code
§ 18.2-248. Patel contends that (1) his double jeopardy and due process rights under the United
States and Virginia Constitutions were violated because he was retried after the prosecution
caused a mistrial, and (2) the circuit court violated his due process rights under the United States
and Virginia Constitutions by failing to grant his motion to strike because the evidence was
insufficient as a matter of law to prove that he sold drugs to an individual who did not have a
prescription for those drugs. For the following reasons, we disagree and affirm Patel’s
convictions.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 1 Jason S. Miyares succeeded Mark R. Herring as Attorney General on January 15, 2022. BACKGROUND
A. Controlled Drug Purchases
In the spring of 2018, Patel, then pharmacist and owner of HnR Pharmacy in
Fredericksburg, was the subject of a sting operation involving a confidential informant, Timothy
Urbani. Urbani, a customer of HnR Pharmacy with a personal history of felony convictions and
drug abuse problems, informed Stafford County Detective Shawn Monaghan that he could
purchase drugs at HnR Pharmacy without a prescription. Detective Monaghan relayed this
information to Special Agent Tony Chrisley of the Virginia State Police, who, along with
Detective Monaghan, was a member of a regional narcotics task force involving local Stafford
police, Virginia State Police, and the United States Drug Enforcement Administration (“DEA”).
Urbani agreed to work with Special Agent Chrisley as an informant performing controlled drug
purchases at HnR Pharmacy.
Urbani performed eight controlled drug purchases from Patel, with the first taking place
on April 9, 2018. Before each controlled drug purchase, law enforcement provided Urbani with
cash to pay for the drugs and equipped him with surveillance equipment that captured audio and
video recordings of his drug purchases from Patel.
In the first controlled drug purchase on April 9, 2018, Urbani purchased oxymorphone, a
Schedule II drug, and clonazepam, a Schedule IV drug, from Patel in two unlabeled pill bottles.
During this purchase, Patel asked Urbani “are you wearing wire?” and later told Urbani that
“you’re getting a f—ing deal.” In the second controlled purchase on April 26, 2018, Urbani
purchased oxymorphone and clonazepam in two pill bottles, only one of which was labeled.
During this purchase, Patel insisted that he and Urbani communicate through written notes to
avoid being detected by the pharmacy camera system. In the third controlled purchase on May 2,
2018, Urbani purchased oxymorphone and clonazepam in one unlabeled pill bottle. During this
-2- purchase, Patel and Urbani communicated through written notes, and Patel told Urbani “if
anything happens, I didn’t do it” and again asked Urbani if he was wearing a wire. In the fourth
controlled purchase on May 9, 2018, Urbani purchased oxymorphone and clonazepam in one
unlabeled pill bottle.
In the fifth controlled purchase on May 17, 2018, Urbani purchased oxymorphone and
clonazepam in one unlabeled pill bottle. During this purchase, Patel told Urbani that he wanted
to stop at some point because the pharmacy was about to be audited. In the sixth controlled
purchase on May 25, 2018, Urbani purchased methadone, a Schedule II drug, and clonazepam in
three pill bottles, one of which was unlabeled. During this purchase, Urbani managed to retain a
written note that he had used to communicate with Patel, which he later provided to Special
Agent Chrisley. During the seventh controlled purchase on June 1, 2018, Urbani purchased
methadone and clonazepam in one labeled pill bottle. During the eighth and final controlled
purchase on June 21, 2018, Urbani purchased methadone, clonazepam, and
buprenorphine/naloxone, a Schedule III drug, in one labeled pill bottle.
The DEA eventually executed a search warrant on HnR Pharmacy and seized hard drives
containing surveillance recordings and digital pharmacy records.2 Task force officers took Patel
into custody and brought him to the narcotics task force office in Fredericksburg, where
Detective Monaghan and Special Agent Chrisley read Patel his Miranda3 rights before beginning
their interview. A DEA agent was also present. During the interview, Patel answered questions
about his practices as a pharmacist and the practices of other pharmacists, declining to answer
2 Patel filed two motions to compel the Commonwealth to turn over the data in the hard drives seized by the DEA, asserting that the hard drives contained potentially exculpatory information. In response, the Commonwealth maintained that it was not involved in the DEA’s separate investigation of HnR Pharmacy and could not obtain access to the hard drives. Accepting the Commonwealth’s representations, the circuit court denied both motions to compel. 3 Miranda v. Arizona, 384 U.S. 436 (1966). -3- only when asked specifically whether he sold drugs to patients without a prescription. At the end
of the interview, Patel was formally arrested. In his amended indictments, Patel was charged
with eight counts of distributing a Schedule I or II controlled substance, one count of distributing
a Schedule III controlled substance, eight counts of distributing a Schedule IV controlled
substance, and one count of money laundering.4
B. The First Trial
Patel’s first trial began on May 1, 2019, in the Circuit Court of the City of
Fredericksburg. During its case-in-chief, the Commonwealth admitted over forty exhibits
without objection. The exhibits consisted mainly of the audio and video recordings of Urbani’s
controlled drug purchases, photos of the pills and pill bottles recovered from the purchases,
photos of the cash used to make the purchases, and certificates of analysis prepared for the drugs
that were purchased. Defense counsel stipulated to the expertise of the Commonwealth’s two
expert witnesses, and there were no significant interruptions or major setbacks to any aspect of
the Commonwealth’s presentation of its evidence.
At the close of the second day of trial, the Commonwealth called Detective Monaghan as
its ninth witness. During direct examination, the prosecutor attempted to play a redacted version
of a video recording of Patel’s interview at the narcotics task force office (“DEA interview”) to
avoid revealing what the prosecutor considered irrelevant information about the DEA’s
involvement in the case. In objecting to the redacted version, defense counsel requested that the
entire video be played for the court. The prosecutor responded, “I’ll be more than happy to play
the entire video. I was just putting that out in fairness to the Defendant.” After the entire video
of the DEA interview was played for the court, the prosecutor continued his direct examination:
[PROSECUTOR]: During that interview, you made commentary about other agencies . . . having involvement. Do you have any
4 Patel does not challenge his money laundering conviction on appeal. -4- personal knowledge about any buys that occurred through the DEA?
[DETECTIVE MONAGHAN]: My understanding is the DEA did two purchases of their own from HnR Pharmacy from Mr. Patel.
Upon hearing Detective Monaghan’s answer, defense counsel moved for a mistrial,
arguing that this was the first time he had heard about any separate controlled drug purchases
conducted by the DEA and that the revelation of this information to the jury was incurably
prejudicial to Patel’s affirmative defense of entrapment. In response, the prosecutor stated that
he did not know what Detective Monaghan’s answer would be when he asked the question. He
thought the question warranted considering defense counsel’s repeated attempts to bring up the
DEA’s involvement in the case, both during cross-examination of the Commonwealth’s
witnesses and by requesting that the entire DEA interview be played. The circuit court declared
a mistrial.
Several months later, Patel moved to dismiss his indictments on double jeopardy grounds,
arguing that “the government cannot intentionally create a mistrial and then benefit from it for
whatever reason,” nor “create a mistrial so recklessly that it’s tantamount to intentionally
creating a mistrial.” In response, the Commonwealth asserted that it “did not stand to benefit
from, and therefore had no reason to deliberately provoke a defense motion for mistrial” and that
“the Commonwealth did not ask the question in bad faith but rather from a genuine and
justifiable belief that defense counsel had ‘opened the door’ to inquiry about the basis for the
independent DEA investigation and search warrant.” At a hearing on the motion, the circuit
court ruled that the prosecutor did not intentionally provoke a mistrial: “What the transcript
doesn’t reflect and what the [c]ourt witnessed was the body language of [the prosecutor]” and
that “making a mistake in the course and the heat of a trial is not necessarily reckless. It
certainly doesn’t show necessarily ill intent.” The circuit court denied the motion to dismiss.
-5- C. The Second Trial
Patel’s retrial began on November 4, 2020, with new defense counsel. As one of its
exhibits, the Commonwealth entered a “Prescription Monitoring Program” (“PMP”) report
showing all legitimate prescriptions that Urbani had filled during the relevant period from
January 1 to July 11, 2018. The Commonwealth called Susan Beckmann, a pharmacy inspector
with the Virginia Department of Health Professions, who testified to the many statutory and
regulatory violations that Patel committed during the controlled drug purchases, such as failing
to affix labels to pill bottles and mixing pills of different types together in the same bottle.
Beckmann also testified that a pharmacist is required to update a patient’s data in the PMP
system every time the pharmacist fills a prescription for a patient and that Urbani’s PMP report
did not show that he had ever filled prescriptions for oxymorphone, clonazepam, methadone, or
buprenorphine/naloxone. On cross-examination, Beckmann conceded that a PMP report does
not track which prescriptions have been originally issued to patients, but only tracks
prescriptions as they are filled by a pharmacy.
Urbani was eventually called to testify by the Commonwealth. When asked if he ever
had a prescription for clonazepam, Urbani initially testified that “I think I did have one for
[c]lonazepam. I think that’s what it was, the name of the pill. . . . I don’t remember if I filled the
[c]lonazepam [at HnR pharmacy] or at Giant. I’ll be honest, I don’t remember.” Urbani was
then shown his PMP report, and he then testified that he had confused clonazepam with
lorazepam, a drug that his PMP report showed he had filled at Giant under a valid prescription.
Later in his testimony, Urbani emphasized that he never had a prescription for clonazepam, nor
for any of the other drugs that were the subject of Patel’s charges.
After the Commonwealth rested, defense counsel moved to strike, arguing that Urbani
could not testify conclusively as to what prescriptions he had. The circuit court overruled the
-6- motion to strike. Patel then testified in his own defense, stating that Urbani had prescriptions on
file at HnR Pharmacy, but that he could not remember which specific drugs those prescriptions
were for. Defense counsel made a renewed motion to strike, which again was overruled by the
circuit court. The jury, rejecting Patel’s affirmative defense of entrapment, found Patel guilty on
all charges, and he received an active sentence of four years and eight months of imprisonment.
This appeal followed.
ANALYSIS
I. Double Jeopardy5
Under the United States and Virginia Constitutions, a criminal defendant may not be
subjected to repeated prosecutions for the same offense. U.S. Const. amend. V; Va. Const. art. I,
§ 8. The protection against double jeopardy “recognizes the vast power of the sovereign, the
ordeal of a criminal trial, and the injustice our criminal justice system would invite if prosecutors
could treat trials as dress rehearsals until they secure the convictions they seek.” Currier v.
Virginia, 138 S. Ct. 2144, 2149 (2018). However, “the Clause was not written or originally
understood to pose ‘an insuperable obstacle to the administration of justice’ in cases where ‘there
is no semblance of [these] type[s] of oppressive practices.’” Id. (alterations in original) (quoting
Wade v. Hunter, 336 U.S. 684, 688-89 (1949)). “Prosecutorial conduct that might be viewed as
harassment or overreaching, even if sufficient to justify a mistrial on defendant’s motion, . . .
does not bar retrial absent intent on the part of the prosecutor to subvert the protections afforded
by the Double Jeopardy Clause.” Oregon v. Kennedy, 456 U.S. 667, 675-76 (1982).
5 We disagree with the Commonwealth’s argument that Patel’s double jeopardy claim is procedurally defaulted under Rule 5A:18. By moving to dismiss on double jeopardy grounds and alleging intentional prosecutorial misconduct, Patel stated his objection with reasonable certainty and therefore preserved this issue on appeal. Rule 5A:18. Moreover, defense counsel took no actions that expressly waived this objection. See Brown v. Commonwealth, 279 Va. 210, 217 (2010) (“[I]f a trial court is aware of a litigant’s legal position and the litigant did not expressly waive such arguments, the arguments remain preserved for appeal.”). -7- “Only where the governmental conduct in question is intended to ‘goad’ the defendant
into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after
having succeeded in aborting the first on his own motion.” Id. at 676. The Supreme Court in
Kennedy “rejected an attempt ‘to broaden the test from one of intent to provoke a motion for a
mistrial to a more generalized standard of “bad faith conduct” or “harassment” on the part of the
. . . prosecutor.’” Pease v. Commonwealth, 39 Va. App. 342, 348 (2002) (en banc) (alteration in
original) (quoting Kennedy, 456 U.S. at 674), aff’d, 266 Va. 397 (2003). “In Kennedy, the
Supreme Court made it clear that the exclusive focus should not be on the fact of prosecutorial
error or on the impact of such error upon a defendant, but only on the intent of the prosecutor in
committing the error.” Robinson v. Commonwealth, 17 Va. App. 551, 553, aff’d en banc, 18
Va. App. 814 (1994). “Without the requisite intent . . . gross prosecutorial misconduct will not
satisfy the exception set forth in Kennedy.” Id. at 555.
“Whether a prosecutor ‘intended to “goad” the defendant into moving for a mistrial’
requires an assessment of the ‘objective facts and circumstances of the case.’” Bennefield v.
Commonwealth, 21 Va. App. 729, 736 (1996) (quoting Kennedy, 456 U.S. at 675-76)). Thus,
“[t]he question of whether prosecutorial misconduct was intended to provoke the defendant into
seeking a mistrial is a factual question that is appropriately decided by the trial court.” Robinson,
17 Va. App. at 555 (quoting State v. Diaz, 521 A.2d 129, 133 (R.I. 1987)). “The court’s finding
concerning the prosecutor’s intent is . . . a factual one which we must accept unless it is clearly
erroneous.” Kemph v. Commonwealth, 17 Va. App. 335, 343 (1993) (quoting United States v.
Borromeo, 954 F.2d 245, 247 (4th Cir. 1992)). “Under familiar principles of appellate review,
-8- the trial court’s findings of fact are binding unless they are without evidence to support them.”
Weaver v. Commonwealth, 25 Va. App. 95, 103 (1997).6
Here, it is clear that even if the prosecutor’s question to Detective Monaghan about
separate DEA controlled purchases was borne of frustration and amounted to harassment, bad
faith, or even gross prosecutorial misconduct, this would still be insufficient—without more—to
sustain the conclusion that the prosecutor intended to cause a mistrial to subvert Patel’s double
jeopardy protections. See Kennedy, 456 U.S. at 675-76; Pease, 39 Va. App. at 348; Robinson, 17
Va. App. at 553-55 (upholding the circuit court’s factual finding that the prosecutor’s “injecting
[of] clearly improper issues at the first trial” was “highly improper,” but, “[w]ithout the requisite
intent,” even “gross prosecutorial misconduct” does not bar retrial of a defendant); Bennefield,
21 Va. App. at 736 (upholding the circuit court’s factual finding that the prosecutor’s last minute
disclosure of evidence and failure to review police documents, while constituting “gross
negligence” and “near total indifference . . . to Court Orders,” did not show intent to provoke a
mistrial).
Patel theorizes that the prosecutor, responding to defense counsel’s request to play the
entire DEA interview, suddenly formed the intent to cause a mistrial out of fear that the jury
might discover that the DEA had seized and failed to return the HnR Pharmacy hard drives. We
are unpersuaded. This revelation, had it occurred, would not have harmed the Commonwealth’s
6 This deferential standard of review is not to be confused with the standard of review for other types of double jeopardy violations. When a defendant alleges a double jeopardy violation on the grounds of multiple punishment for the same offense or collateral estoppel, we review these cases de novo. See, e.g., Davis v. Commonwealth, 57 Va. App. 446 (2011); Dalo v. Commonwealth, 37 Va. App. 156 (2001); Hall v. Commonwealth, 69 Va. App. 437 (2018); Currier v. Commonwealth, 65 Va. App. 605 (2015), aff’d, 292 Va. 737 (2016), aff’d, 138 S. Ct. 2144 (2018). When a defendant alleges a double jeopardy violation asserting that the circuit court erred in finding manifest necessity to declare a mistrial, we review these cases for abuse of discretion. See, e.g., Prieto v. Commonwealth, 278 Va. 366 (2009); Mack v. Commonwealth, 177 Va. 921 (1941). -9- case-in-chief in any significant respect, nor would it have curtailed the probative value of the
Commonwealth’s evidence.7 This does not present a situation where the “prosecutor was trying
this case and got to a certain point and thought he was going to lose it,” Pease, 39 Va. App. at
348, nor was this a situation where, in the middle of trial, it “appeared that the
[Commonwealth’s] evidence would be insufficient to convict,” Arizona v. Washington, 434 U.S.
497, 507 (1978) (explaining how the prohibition against double jeopardy originally evolved to
condemn the “abhorrent” practice of English judges “exercising a power to discharge a jury
whenever it appeared that the Crown’s evidence would be insufficient to convict”).
We note that the circuit court judge who oversaw Patel’s first trial was the same judge
who decided Patel’s motion to dismiss for double jeopardy, a factor that we have found
significant in the past. See Bennefield, 21 Va. App. at 737 (“For that reason, he was better able
to determine how the prosecution’s case was progressing, and whether the prosecutor had any
motivation or desire to cause a mistrial so as to gain a more favorable position at a new trial.”).
We also note as significant the fact that the prosecutor argued strenuously in opposition to
defense counsel’s motion for a mistrial, which suggests that the prosecutor did not intend to
cause a mistrial. See Kemph, 17 Va. App. at 343 (noting that “[t]he prosecutor . . . opposed the
granting of a mistrial, suggesting that he lacked a purposeful intent to bring about the mistrial”).
In conclusion, we hold that the circuit court’s factual finding that the prosecutor did not
intentionally provoke a mistrial was supported by the objective facts and circumstances of this
case. Thus, by being subjected to a retrial, Patel’s “valued right to have his trial completed by a
particular tribunal” was properly “subordinated to the public’s interest in fair trials designed to
7 The only harm to the Commonwealth’s case-in-chief would have come from the revelation of the specific contents of the files in the hard drives themselves—assuming, of course, that these files did in fact contain exculpatory information. - 10 - end in just judgments.” Wade, 336 U.S. at 689. Accordingly, Patel’s constitutional protections
against double jeopardy were not violated.
II. Motion to Strike
Code § 18.2-248(A) provides that “[e]xcept as authorized in the Drug Control Act . . . it
shall be unlawful for any person to manufacture, sell, give, distribute, or possess with intent to
manufacture, sell, give or distribute a controlled substance.” In turn, Code § 54.1-3410(A) of the
Drug Control Act provides that “[a] pharmacist, acting in good faith, may sell and dispense drugs
and devices to any person pursuant to a prescription of a prescriber.” Code § 54.1-3410(A)(1)
further states that “[a] drug listed in Schedule II shall be dispensed only upon receipt of a written
prescription,” and Code § 54.1-3410(B) states that “[a] drug controlled by Schedules III through
VI . . . shall be dispensed upon receipt of a written or oral prescription.” When dispensing a
Schedule II, III, or IV drug, a pharmacist must “affix to the container in which such drug is
dispensed, a label” showing, among other things, “the date of initial filing; [the pharmacist’s]
name and address, or the name and address of the pharmacy; the name of the patient . . . ; [and]
the name of the prescriber by whom the prescription was written.” Code § 54.1-3410(A)(3),
(B)(2). Oxymorphone and methadone are classified as Schedule II drugs,
buprenorphine/naloxone is classified as a Schedule III drug, and clonazepam is classified as a
Schedule IV drug. Code §§ 54.1-3448, -3450, and -3452.
“A motion to strike challenges whether the evidence is sufficient to submit the case to the
jury.” Lawlor v. Commonwealth, 285 Va. 187, 223 (2013). “A circuit court must rule on a
motion to strike based on the presumption that the jury will believe all the evidence favorable to
the [Commonwealth], as well as all reasonable inferences that a jury might draw therefrom in
favor of the [Commonwealth].” Dill v. Kroger Ltd. P’ship I, 300 Va. 99, 109 (2021). Further,
“[w]hen evaluating a motion to strike, the circuit court must not judge the weight or credibility of
- 11 - evidence, because to do so ‘would invade the province of the jury.’” Id. (quoting Tahboub v.
Thiagarajah, 298 Va. 366, 371 (2020)). A trial court should grant a motion to strike “only when
it is conclusively apparent that [the Commonwealth] has proven no cause of action against
defendant, or when it plainly appears that the trial court would be compelled to set aside any
verdict found for the [Commonwealth] as being without evidence to support it.” Avent v.
Commonwealth, 279 Va. 175, 198-99 (2010) (alterations in original) (quoting Banks v. Mario
Indus., 274 Va. 438, 455 (2007)).
Patel contends that the circuit court erred in overruling his motion to strike because the
Commonwealth’s evidence was insufficient as a matter of law to establish that Urbani did not
have prescriptions for the drugs that Patel sold to him. We disagree. Although Urbani gave
conflicting testimony on whether he had a prescription for clonazepam, “[t]estimony may be
contradictory or contain inconsistencies without rising to the level of being inherently incredible as
a matter of law.” Kelley v. Commonwealth, 69 Va. App. 617, 626 (2019). “To be incredible,
[testimony] must be either so manifestly false that reasonable men ought not to believe it, or it
must be shown to be false by objects or things as to the existence and meaning of which
reasonable men should not differ.” Burke v. Scott, 192 Va. 16, 23 (1951). If Patel had offered
evidence establishing that Urbani had valid prescriptions for the drugs that Patel sold to him, that
is a method by which Urbani’s testimony could have been rendered incredible as a matter of law.
Yet Patel offered no such evidence.8 Thus, “[p]otential inconsistencies in [Urbani’s] testimony
[were to be] resolved by the fact finder.” Towler v. Commonwealth, 59 Va. App. 284, 292
(2011).
Patel laments that “if the prosecution and defense had Patel’s database of on-file 8
prescriptions on his hard-drive, Patel could have presented that evidence in his defense.” But the issue of the propriety of the DEA’s actions and the circuit court’s decision not to compel the Commonwealth to turn over the hard drives is not before us in this appeal. - 12 - We disagree with Patel’s contention that, because Urbani’s PMP report only showed
prescriptions that were filled and not those originally issued to him, the evidence was insufficient
as a matter of law to convict Patel. Viewed in the light most favorable to the Commonwealth,
Urbani’s PMP report corroborated Urbani’s testimony that he did not have prescriptions for the
drugs that Patel sold to him. If Urbani did in fact have prescriptions for these drugs, Patel was
required by law to update Urbani’s data in the PMP system every time he sold drugs to Urbani.
Since Urbani’s PMP report did not show that he had ever filled prescriptions for oxymorphone,
clonazepam, methadone, or buprenorphine/naloxone, the jury could have reasonably inferred that
Patel—a licensed pharmacist who should have known the proper procedures for filling
prescriptions—sold the drugs to Urbani without a valid prescription. This inference is only
further supported by Patel’s suspicious behavior during the controlled drug purchases, including
his insistence that he and Urbani communicate through written notes, and his failure to follow
other statutory and regulatory requirements by selling drugs to Urbani in unlabeled pill bottles
and mixing different pills together in the same bottle.
In sum, the evidence offered by the Commonwealth to establish that Urbani did not have
prescriptions for the drugs Patel sold to him was not incredible as a matter of law. When viewed
in the light most favorable to the Commonwealth, the evidence was sufficient for the jury to find
that Urbani did not have prescriptions for the drugs that Patel sold to him. Thus, the circuit court
did not err in overruling Patel’s motion to strike.
CONCLUSION
For the foregoing reasons, the judgment of the circuit court is affirmed.
Affirmed.
- 13 -