On The Docket
David B. Brushwood, BSPharm, JD
A Utah pharmacist was charged with theft of a controlled substance and with obstruction of justice. A jury found the pharmacist not guilty of theft, but guilty of obstructing justice. The pharmacist appealed, arguing that the verdict was inconsistent. The pharmacist questioned how a person could be found not guilty of a crime, yet be found guilty of obstructing justice in the investigation of that crime.
Background
The pharmacist was suspected of stealing phentermine from the pharmacy where he worked. Two pharmacy technicians reported unexplained shortages of phentermine to another pharmacist on staff. The other pharmacist reported the shortage to management. A hidden video camera was installed in a vent above the area where phentermine was stored. Video footage showed the defendant pharmacist removing phentermine from stock bottles of the medication at times when no phentermine prescriptions were being filled.
There was also evidence that the pharmacist had edited the inventory of phentermine in the computerized record to reconcile a discrepancy between the on-hand account and the computer account, without reporting the shortage of phentermine to management or to DEA.
The pharmacist resigned from employment, without offering any explanation for the missing phentermine. Pharmacy management referred the case to the board of pharmacy and DEA. This referral resulted in criminal prosecution of the pharmacist.
After the jury found the pharmacist guilty of obstructing justice but not guilty of theft, the pharmacist asked the trial court to nullify the jury verdict, which the court refused to do. An appeal was then taken.
Rationale
On appeal, the pharmacist argued that the jury’s verdict was “inherently improbable” because a person cannot obstruct the investigation of a crime or the prosecution of a crime if there has been no crime. The pharmacist reasoned that when the jury found him not guilty of theft, the jury had concluded that he had not committed a crime, so there could not have been an obstruction of justice.
In considering this argument, the appellate court first referred to Utah law. “The obstruction of justice statute does not require a conviction of the underlying crime—it simply requires that the defendant took certain actions with the intent to hinder, delay, or prevent the investigation, apprehension, prosecution, conviction, or punishment of any person regarding conduct that constitutes a criminal offense.”
The court reasoned that because the pharmacist had “manually altered the inventory of phentermine to account for the missing pills, the jury could have found that he did this to prevent the investigation of the offense of theft of phentermine.”
The court concluded that the jury’s verdict was rational, based on the evidence. The pharmacist’s acquittal of the crime of theft did not mean the pharmacist was innocent of that crime. It meant only that the government had failed to meet its burden of proving the crime. The pharmacist’s conviction for obstruction of justice was affirmed.
Discussion
A jury finding of “not guilty” is not a finding of “innocence.” If the facts show that a criminal defendant has taken actions to obstruct investigators in their development and prosecution of their case against the defendant, those actions may support a conviction for obstruction of justice, even if the defendant has successfully interfered with prosecution of the crime itself. Were this not the case, then an effective and obvious cover-up could exculpate a guilty defendant.
This case teaches that the alteration of pharmacy records is a serious offense, in and of itself. The integrity of the drug distribution system relies on the accuracy of records throughout the system. Prosecution of pharmacists for diversion of controlled substances often relies, in part, on the data contained within pharmacy records. Manipulation of these data may initially cause confusion about the source of leaks from the closed system of distribution. Eventually the manipulation of data can support a criminal conviction.