United States v. James Wilson

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 15, 2021
• Docket: 19-50386
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 15 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-50386

Plaintiff-Appellee, D.C. No. 2:17-cr-00479-TJH-1

v.

JAMES WILSON, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California Terry J. Hatter, District Judge, Presiding

Submitted June 10, 2021** Pasadena, California

Before: MURGUIA and BADE, Circuit Judges, and MOLLOY,*** District Judge.

Following a one-day bench trial, James Wilson was convicted of two counts

of distributing oxycodone in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). While

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Donald W. Molloy, United States District Judge for the District of Montana, sitting by designation. 1 Wilson does not dispute that the evidence shows he sold four fraudulent

prescriptions, he argues that his sale of unfilled, fraudulent oxycodone prescriptions

does not constitute “distribution” under the Controlled Substances Act. We review

claims of insufficient evidence de novo. United States v. Sandoval-Gonzalez, 642

F.3d 717, 727 (9th Cir. 2011). Evidence is insufficient to sustain a conviction if,

viewed in the light most favorable to the prosecution, no rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt. Jackson

v. Virginia, 443 U.S. 307, 319 (1979); United States v. Nevils, 598 F.3d 1158, 1163–

64 (9th Cir. 2010) (en banc). We have jurisdiction pursuant to 28 U.S.C. § 1291,

and we affirm.

1. Section 841(a)(1) provides: “it shall be unlawful for any person knowingly

or intentionally . . . to manufacture, distribute, or dispense, or possess with intent to

manufacture, distribute, or dispense, a controlled substance . . . .” “Distribute” is

defined as “to deliver (other than by administering or dispensing) a controlled

substance,” 21 U.S.C. § 802(11), and “delivery” as the “actual, constructive, or

attempted transfer of a controlled substance or a listed chemical, whether or not there

exists an agency relationship,” id. § 802(8). Wilson’s conduct satisfies the

requirements for both constructive and attempted transfer.

2. Constructive transfer under § 841(a) occurs “when a doctor steps out of the

usual course of his professional duties and writes a prescription for someone for a

2 controlled substance not pursuant to a legitimate medical purpose.” United States v.

Davis, 564 F.2d 840, 844 (9th Cir. 1977); see also United States v. Moore, 423 U.S.

122, 124 (1975); United States v. Feingold, 454 F.3d 1001, 1003 (9th Cir. 2006).

And, despite Wilson’s attempt to muddy the waters, the offense is complete at the

time the prescription is written “by creating the means by which controlled

substances can be transferred.” Davis, 564 F.2d at 845. Wilson’s status as a

nonphysician does not undermine his conviction because the Supreme Court has

recognized that “[b]y its terms, § 841 reaches ‘any person’” and is “concerned with

the nature of the drug transaction, rather than the status of the defendant.” Moore,

423 U.S. at 131, 134. Nor is the actual acquisition of drugs required. See Davis,

564 F.2d at 844. Here, the evidence shows that Wilson sold four fraudulent

prescriptions for 30-milligram tablets of oxycodone. Because nothing more is

required to complete the offense of distribution, the evidence supports a finding that

Wilson constructively transferred oxycodone by prescription in violation of

§ 841(a)(1).

3. The evidence also supports Wilson’s convictions under a theory of

attempted transfer. “Attempt” requires “[1] an intent to commit the underlying

offense, along with [2] an overt act constituting a substantial step towards the

commission of the offense.” United States v. Gonzalez-Monterroso, 745 F.3d 1237,

1243 (9th Cir. 2014) (internal quotation marks and citation omitted) (alterations in

3 original). Wilson took specific steps to ensure his prescriptions would appear

authentic and avoid raising red flags, such as making sure the “patient” ages were

not suspicious; adding insurance diagnostic codes; and including additional

medications. He also agreed to verify the prescriptions if the pharmacist called them

in, specifically requesting that he be provided with the names and dates of birth for

this purpose. Had Wilson only intended the sale of the prescriptions themselves,

there would be no reason to cover the verification process. Viewed in the light most

favorable to the government, Nevils, 598 F.3d at 1163–64, the evidence supports a

finding that Wilson attempted to transfer not just prescriptions, but oxycodone.

AFFIRMED.