Argued and Submitted, November 8, 2013 Seattle, Washington
Petition for certiorari filed at, 06/02/2014
Appeal from the United States District Court for the Eastern District of Washington. D.C. No. 2:10-cr-06070-EFS-1. Edward F. Shea, Senior District Judge, Presiding.
Jeffry Keith Finer, Spokane, Washington, for Defendant-Appellant.
Alexander C. Ekstrom, Assistant United States Attorney, Yakima, Washington, for Plaintiff-Appellee.
Before: Mary M. Schroeder, Richard A. Paez, and Marsha S. Berzon, Circuit Judges.
BERZON, Circuit Judge.
Kenyon Lyle was indicted on two counts of violating 18 U.S.C. § 1365(a), which prohibits " tamper[ing] with any consumer product that affects interstate or foreign commerce, or the labeling of, or container for, any such product...." Lyle moved to dismiss these counts pursuant to Federal Rule of Criminal Procedure 12(b)(3)(B), asserting that the conduct alleged in the indictment did not constitute " tamper[ing]" within the meaning of § 1365(a). The district court denied the motion to dismiss. We affirm.
Lyle worked as a pharmacist at a Safeway in Kennewick, Washington. After a customer filed a police report alleging she had purchased an empty box of Fentanyl patches, the pharmacy was investigated, and twelve additional empty boxes were discovered. The investigation turned to Lyle, and he was charged with, inter alia, tampering with a consumer product in violation of § 1365(a). Specifically, the indictment alleged that Lyle:
with reckless disregard for the risk that another person would be placed in danger of bodily injury, and under circumstances manifesting extreme indifference to such risk, did tamper with a consumer product that affected interstate and foreign commerce, specifically Fentanyl, and with the labeling of and container for such a product by opening the manufacturer's box containing Fentanyl patches, by removing said Fentanyl patches, by re-gluing said manufacturer's box and returning said manufacturer's boxes to a secured narcotics storage cabinet, all in violation of
Section 1365(a) of Title 18 of the United ...