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United States v. Bennett

United States District Court, S.D. Mississippi, Southern Division

January 6, 2017

UNITED STATES OF AMERICA
v.
SHERRIE BOX BENNETT and JERRY DEAN BENNETT

         ORDER DENYING DEFENDANT SHERRIE BOX BENNETT'S [104] MOTION FOR JUDGMENT OF ACQUITTAL OR ALTERNATIVELY, MOTION FOR NEW TRIAL PURSUANT TO RULES 29 AND 33 OF THE FEDERAL RULES OF CRIMINAL PROCEDURE, AND DENYING DEFENDANT JERRY DEAN BENNETT'S [103], [105], [109] MOTIONS FOR JOINDER IN [104] MOTION

          HALIL SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE

         BEFORE THE COURT are the Motion [104] for Judgment of Acquittal or Alternatively, Motion for New Trial Pursuant to Rules 29 and 33 of the Federal Rules of Criminal Procedure filed by Defendant Sherrie Box Bennett, and the Motions for Joinder [103], [105], [109] filed by Defendant Jerry Dean Bennett. These Motions are fully briefed. After considering the Motions, the record as a whole, and relevant legal authority, the Court finds that the Motion [104] for Judgment of Acquittal or Alternatively, Motion for New Trial, and the Motions for Joinder [103], [105], [109] should all be denied. Neither Defendant is entitled to a judgment of acquittal or a new trial.

         I. BACKGROUND

         A. Factual background

         Defendant Sherrie Box Bennett (“Ms. Bennett”) worked as a registered nurse at Biloxi Radiation Oncology Center (the “Clinic”) with Dr. Laurence Lines (“Dr. Lines”). Ms. Bennett also worked as office manager and essentially ran the Clinic. At some point, Dr. Lines began to suffer symptoms of dementia. According to the Government, Ms. Bennett began exerting power over Dr. Lines' personal and business affairs.

         Beginning at least as early as 2010, prescriptions using Dr. Lines' name were being written to Ms. Bennett, her husband Defendant Jerry Dean Bennett (“Mr. Bennett”), and others in the Bennetts' family. The Government maintains that some prescriptions were written by Dr. Lines himself, but that he was not aware of what he was doing. Other prescriptions were issued using Dr. Lines' rubberstamp signature, while still others were called into pharmacies by Ms. Bennett.

         On November 22, 2011, Biloxi Radiation Oncology Center, LLC, filed a Voluntary Petition under Chapter 11 of the Bankruptcy Code. In re Biloxi Radiation Oncology Center, LLC, No. 11-52727-KMS, Petition [1] (Bankr. S.D.Miss. Nov. 22, 2011). The Clinic initially remained a debtor-in-possession. On May 7, 2013, the United States Trustee filed a Motion to Convert or Dismiss, or Alternatively, to Appoint a Chapter 11 Trustee because “the Debtor ha[d] shown gross mismanagement of the Debtor's affairs . . . .” In re Biloxi Radiation Oncology Center, LLC, No. 11-52727-KMS, Mot. [304] (Bankr. S.D.Miss. May 7, 2013).

         Attorney Kimberly R. Lentz was appointed as the Chapter 11 trustee in the bankruptcy proceeding. In re Biloxi Radiation Oncology Center, LLC, No. 11-52727-KMS, Order [336] (Bankr. S.D.Miss. June 10, 2013). In a separate Order, the Bankruptcy Court also ordered that Trustmark National Bank dishonor any check presented for payment that was made payable to Dr. Lines or Ms. Bennett. In re Biloxi Radiation Oncology Center, LLC, No. 11-52727-KMS, Order [337] (Bankr. S.D.Miss. June 10, 2013). The Bankruptcy Court required Trustmark to remove Dr. Lines and Ms. Bennett as authorized signatories on any existing debtor-in-possession account. In re Biloxi Radiation Oncology Center, LLC, No. 11-52727-KMS, Order [355] (Bankr. S.D.Miss. June 11, 2013).

         On June 17, 2013, Ms. Lentz, as trustee, filed an adversary proceeding against Ms. Bennett. Lentz v. Bennett, No. 13-05024 Compl. [1] (S.D.Miss. June 17, 2013). The adversary complaint asserted claims against Ms. Bennett based upon her alleged gross mismanagement of the debtor's financial affairs and her alleged transfer of debtor assets to herself and to Dr. Lines, over which Ms. Bennett subsequently took control. Id.

         B. Procedural history

         On August 4, 2015, a federal grand jury returned an 11-count Indictment [3] against Ms. Bennett and Mr. Bennett (collectively, “Defendants”). On April 5, 2016, the Grand Jury returned a First Superseding Indictment [42]. Count 1 of the First Superseding Indictment [42] charged Ms. Bennett and Mr. Bennett with conspiring to distribute and dispense controlled substances outside the scope of professional practice as prohibited by 21 U.S.C. § 841(a)(1), all in violation of 21 U.S.C. § 846. 1st Superseding Indictment [42] at 1. Counts 2 through 11 charged that Defendants knowingly and intentionally distributed and dispensed a controlled substance outside the scope of professional practice on separate occasions between January 9, 2012, and April 5, 2013, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Id. at 1-5. Counts 12 through 14 charged Ms. Bennett alone with bankruptcy fraud, specifically knowingly and fraudulently appropriating to her own use, embezzling, spending, and transferring property of a debtor's bankruptcy estate in violation of 18 U.S.C. § 153. Id. at 5-6.

         The jury trial of this criminal case was set to commence on Tuesday, July 19, 2016, at 9:00 a.m. On Thursday, July 14, 2016, at 6:34 p.m., Ms. Bennett's counsel filed a Motion for Trial Deposition [60]. Ms. Bennett asked the Court, pursuant to Federal Rule of Criminal Procedure 15, to permit her to depose Dr. Frank Pitruzzello, a Radiologist Oncologist who works in Mobile, Alabama, before trial commenced. Mot. [60] at 1-2. Ms. Bennett sought to use Dr. Pitruzzello's deposition testimony at trial. The Government filed a Response [61] in opposition to the Motion [60]. On July 15, 2016, the Court entered an Order [63] denying Ms. Bennett's Motion [60].

         The jury trial began on July 19, 2016, and continued through July 29, 2016. After the Government rested its case-in-chief, Defendants moved for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29. The Court denied Ms. Bennett's Motion, and granted in part and denied in part Mr. Bennett's Motion. The Court dismissed Counts 7, 8, 10, and 11 of the First Superseding Indictment as to Mr. Bennett. Order [80] at 2.

         At the close of trial, the jury deliberated on July 28 and 29, 2016, and on July 29, 2016, returned a verdict of guilty as to Ms. Bennett on the charges contained in Counts 1-14 of the First Superseding Indictment, and a verdict of guilty as to Mr. Bennett on the charges contained in Counts 1-6 and 9 of the First Superseding Indictment.

         After being granted additional time to do so by the Court, on September 29, 2016, Ms. Bennett filed the present Motion [104] for Judgment of Acquittal or Alternatively, Motion for New Trial Pursuant to Rules 29 and 33 of the Federal Rules of Criminal Procedure. Mr. Bennett filed Motions for Joinder [103], [105], [109], which evidence his joinder in Ms. Bennett's Motion and which essentially seek the same relief. The Government filed Responses [106], [107] in opposition to Defendants' Motions, without the benefit of a transcript. Ms. Bennett filed a Reply [108], in which Ms. Bennett recited sections of the trial transcript, and Mr. Bennett joined [109].

         On October 21, 2016, the Court entered a Text Order directing the Government to respond on or before October 31, 2016, to the specific citations to the record contained in Ms. Bennett's Reply [108]. On October 27, 2016, the Government filed a Motion [122] for Extension of Time, requesting until November 8, 2016, to respond. The Court granted the Government's Motion [122] by Text Order entered on October 28, 2016.

         On October 29, 2016, the Government filed its Response [123], which does not specifically address all of the record citations set forth in the Reply [108]. Nor did the Government cite any legal authority in the majority of the sections of its Reply [108]. However, the Government's lack of response as to all of the issues raised by Defendants does not preclude the Court's review of these issues. United States v. Gallardo-Trapero, 185 F.3d 307, 321 (5th Cir. 1999) (quoting United States v. Rosa, 434 F.2d 964, 966 (5th Cir. 1970)).

         Defendants contend that the Court should set aside their convictions or order a new trial for the following reasons:

(1) The Court erred in failing to grant Defendants' Motions for Judgment of Acquittal at the close of the Government's case-in-chief;
(2) The Court erred in omitting certain jury instructions;
(3) The Court erred by not granting Ms. Bennett's Motion to Quash the Indictment for Prosecutorial Misconduct;
(4) The Court erred in denying Ms. Bennett's ore tenus and written Motions for Mistrial;
(5) The Court erred in denying Ms. Bennett's Motion to obtain a pretrial deposition;
(6) The Court erred in denying Ms. Bennett's Motion for permission to enter a medical storage facility to secure evidence;
(7) As for Counts 12, 13, and 14 of the First Superseding Indictment [42], the Court erred in instructing the jury in the disjunctive, rather than the conjunctive, under 18 U.S.C. § 153(a);
(8) Prosecutorial misconduct in the prosecutor's opening and rebuttal closing arguments mandates a judgment of acquittal or a new trial;
(9) The verdict should be set aside or a new trial granted because of alleged deficiencies in the discovery provided by the Government;
(10) The Court exhibited judicial bias; and
(11) Defendants have acquired new evidence, specifically the testimony of Anita Bonner Cotton.

         Having considered Defendants' Motion on the merits, Defendants are not entitled to the relief they seek.

         II. DISCUSSION

         A. Relevant legal authority

         Federal Rule of Criminal Procedure 29(c)(1) provides that a defendant may move for judgment of acquittal, or renew such a motion, after the jury returns a guilty verdict. See Fed. R. Crim. P. 29(c)(1). “[A] motion for a judgment of acquittal is a challenge to the sufficiency of the evidence to sustain a conviction.” United States v. Uvalle-Patricio, 478 F.3d 699, 701 (5th Cir. 2007). In considering the sufficiency of evidence supporting a criminal conviction, the Court

reviews the record to determine whether, considering the evidence and all reasonable inferences in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

United States v. Vargas-Ocampo, 747 F.3d 299, 303 (5th Cir. 2014) (en banc).

         Rule 33(a) provides that “[u]pon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires.” Fed. R. Crim. P. 33(a). The Fifth Circuit has

stressed that motions for new trial are generally disfavored, see United States v. Eghobor, 812 F.3d 352, 363 (5th Cir. 2015), and that district courts have wide discretion with respect to Rule 33 motions, see United States v. MMR Corp., 954 F.2d 1040, 1047 (5th Cir. 1992) (citing United States v. Simmons, 714 F.2d 29, 31 (5th Cir. 1983)).

United States v. Mahmood, 820 F.3d 177, 190 (5th Cir. 2016). Such motions “must be reviewed with great caution.” United States v. Smith, 804 F.3d 724, 734 (5th Cir. 2015) (quoting United States v. Piazza, 647 F.3d 559, 565 (5th Cir. 2011)).

In this Circuit, the generally accepted standard is that a new trial ordinarily should not be granted “unless there would be a miscarriage of justice or the weight of evidence preponderates against the verdict.” United States v. Wall, 389 F.3d 457, 466 (5th Cir. 2004) (citing United States v. O'Keefe, 128 F.3d 885, 898 (5th Cir.1997)). “A new trial is granted only upon demonstration of adverse effects on substantial rights of a defendant.” Id. (citation omitted).

United States v. Wright, 634 F.3d 770, 775 (5th Cir. 2011).

         B. The Court did not err in failing to grant Defendants' Motions for Judgment of Acquittal at the close of the Government's case-in-chief.

         At the close of the Government's case-in-chief, both Defendants moved for judgment of acquittal. See Tr. [115] at 131-43. The Court denied Ms. Bennett's Motion, but granted in part and denied in part Mr. Bennett's Motion. See Id. at 190-94. The Court dismissed counts 7, 8, 10, and 11 as to Mr. Bennett. Id. at 194. Defendants now assert that the Court “errored [sic] in failing to find that the government's evidence lacked sufficiency.” Mot. [104] at 2.

         Defendants were both charged in Count 1 with conspiracy to distribute and dispense controlled substances outside the scope of professional practice, specifically Oxycodone, Oxymorphone, Hydrocodone and Alprazolam, in violation of 21 U.S.C. § 846. As the Court instructed the jury, the elements of this offense are: (1) that two or more persons, directly or indirectly, reached an agreement to distribute or dispense a controlled substance outside the scope of professional practice; (2) the defendant knew of the unlawful purpose of the agreement; (3) that the defendant joined in the agreement willfully, that is, with the intent to further its unlawful purpose; and (4) that the overall scope of the conspiracy involved Oxycodone, Oxymorphone, Hydrocodone and Alprazolam. Tr. [116] at 230-31.

         Counts 2 through 11 charged Defendants with knowingly and intentionally distributing and dispensing a controlled substance outside the scope of professional practice, in violation of 21 U.S.C § 841(a)(1) and 18 U.S.C. § 2. These controlled substances included Oxycodone, a Schedule II narcotic drug controlled substance (Counts 2-4, 9); Hydrocodone, a Schedule III narcotic drug controlled substance (Counts 5, 7, 10-11); Alprazolam, a Schedule IV non-narcotic drug controlled substance (Count 6); and Oxymorphone, a Schedule II narcotic drug controlled substance (Count 8). For the jury to find Defendants guilty of this crime, the Government had to prove each of the following beyond a reasonable doubt as to each Defendant: (1) that the Defendant distributed or dispensed a controlled substance; (2) that the Defendant acted knowingly and intentionally; (3) that the substance distributed or dispensed was in fact the substance charged in the respective count of the Indictment; and (4) that the Defendant was distributing or dispensing for other than a legitimate medical purpose and outside the usual course of professional practice. Tr. [116] at 232-33.

         Counts 12-14 charged that Ms. Bennett, as an agent and employee of Biloxi Radiation Oncology Center, LLC, knowingly and fraudulently appropriated to her own use, embezzled, spent, and transferred property belonging to the debtor's bankruptcy estate in violation of 18 U.S.C. § 153. According to the First Superseding Indictment, the property at issue consisted of a Trustmark Bank check number 1372 in the amount of $16, 636.00 dated January 25, 2013, as to Count 12; a Trustmark Bank check number 1422 in the amount of $10, 000.00 dated March 22, 2013, as to Count 13; and a Trustmark Bank check number 1445 in the amount of $28, 000.00 dated April 3, 2013, as to Count 14.

         As the Court instructed the jury, to find Ms. Bennett guilty of any of these charges, the Government had to prove each of the following beyond a reasonable doubt:

First, that on or about November, 2011, continuing through July, 2013, a bankruptcy case docketed as Case Number 11-52727, substantively consolidated with Case Number 11-52820, was pending in the United States Bankruptcy Court for the Southern District of Mississippi, and Biloxi Radiation Oncology Center, LLC was the Debtor;
Second, that the property described in the indictment was part of the bankruptcy estate of the Debtor;
Third, that defendant Sherrie Box Bennett had access to the property by virtue of her participation in the administration of the bankruptcy estate as an agent and employee of the debtor-in-possession of the bankruptcy estate; and
Fourth, that defendant Sherrie Box Bennett knowingly and fraudulently embezzled, spent, transferred, or appropriated to defendant Sherrie Box Bennett's own use property belonging to the bankruptcy estate.

         Tr. [116] at 236-37.

         The Court has reviewed the record. Considering the evidence and all reasonable inferences in the light most favorable to the prosecution both at the time Defendants made their ore tenus Motions for Judgment of Acquittal at trial and at the close of all evidence at trial, the Court concludes that a rational trier of fact could have found each of the essential elements beyond a reasonable doubt with respect to the charges contained in Counts 1 through 14 of the First Superseding Indictment as to Ms. Bennett, and in Counts 1-6 and 9 of the First Superseding Indictment as to Mr. Bennett. See Vargas-Ocampo, 747 F.3d at 303. Defendants are not entitled to any relief on this basis.

         C. The Court did not err in omitting certain jury instructions.

         Defendants next maintain that the Court erred by “fail[ing] to grant the defendants' preemptory [sic] instruction and other more specific defining instructions which addressed issues such as good faith defense, specific intent regarding fraud, and address regulations versus the law.” Mot. [104] at 2. Defendants sought an instruction directing the jury that “merely failing to follow regulations and guidelines, while evidence, was not enough, standing alone, to convict.” Id. at 11. According to Defendants, “[t]his was important to the Bennetts because the prosecutor tried so hard to merge this in the mind of the jury to obtain a conviction for the alleged failure to follow regulations.” Id.

         The Government responds that

the Court properly instructed the jury and defendant makes no credible argument as to why she was entitled to additional instructions. Defendant, throughout the trial continued to make reference to the medical regulations, which set out the standard of care, as mere “guidelines.” These regulations are binding on medical practitioners and in fact, through the regulatory scheme, determine whether an otherwise valid prescription is not valid. See United States v. Brown, 553 F.3d 768 (5th Cir. 2008) (admissibility of regulations). An invalid prescription is a violation of 21 U.S.C. § 841(a)(1). Defendant's instruction was unnecessary and did not accurately reflect the law.

Resp. [106] at 2.

         The Fifth Circuit has held that

[a] district court abuses its discretion in omitting a requested jury instruction only if the requested language “(1) is substantively correct; (2) is not substantially covered in the charge given to the jury; and (3) concerns an important point in the trial so that the failure to give it seriously impairs the defendant's ability to present effectively a particular defense.”

United States v. Lucas, 516 F.3d 316, 324 (5th Cir. 2008) (quoting United States v. Simkanin, 420 F.3d 397, 401 (5th Cir. 2005)).

         Defendants maintain that several instructions should have been given by the Court, including a peremptory instruction “to find the defendant, Sherrie Bennett, Not Guilty, with respect to all counts of the indictment.” Proposed Instruction D(1) No. 1 [104-1] at 4. There was no basis in law or fact for this peremptory instruction. Nor did either Defendant raise an objection at trial to the Court omitting this instruction from its final jury instructions. See Tr. [116] at 124-29.

         Defendants also argue that the following instruction should have been given by the Court:

During the trial, you have received evidence regarding certain regulations, rules and guidelines. Even though the use of a rubber stamp in lieu of a physician's signature and/or the failure to keep a medical chart when prescribing certain controlled substances and/or telephonically calling in a schedule II controlled substance to a pharmacy may be inappropriate or a violation of the rules, such an act is not done in violation of the offense unless it was done corruptly or if it was intended at the time it is done with the specific intent to violate the elements of the crimes charges [sic] as set forth in these jury instructions.
Furthermore, if the defendant has a good faith belief that she/he was acting in accordance with the proper rules, regulations and guidelines, then that good faith belief is a defense to the crime charged.

Proposed Instruction D(1) No. 2 [104-1] at 5.

         This jury instruction was not an accurate statement of the law, and the Court correctly refused it. Acting “corruptly” was not an element of any of the charges, and giving this instruction would only have served to confuse and mislead the jury. The federal regulation to which the Government referred at trial, see 21 C.F.R. § 1306.04(a), is considered an interpretative regulation, and the Government charged and proved violations of the appropriate criminal statutes, not merely the related regulations, United States v. Brown, 553 F.3d 768, 791 & n.71 (5th Cir. 2008) (citing United States v. Ogle, 201 F. App'x 979 (5th Cir. 2006)). The “use of duly issued regulations in clarifying the scope and contour of criminal law” is “irreproachable” and “commonplace.” Id.

         As the Fifth Circuit has explained,

[t]o convict the defendants of illegally dispensing controlled substances in violation of 21 U.S.C. § 841(a)(1), the Government was required to prove “(1) that [they] . . . dispensed a controlled substance, (2) that [they] acted knowingly and intentionally, and (3) that [they] did so other than for a legitimate medical purpose and in the usual course of [ ] professional practice.” United States v. Norris, 780 F.2d 1207, 1209 (5th Cir. 1986) (quoting United States v. Rosen, 582 F.2d 1032, 1033 (5th Cir. 1978)). The third element is not expressly required by the text of § 841, but relevant regulations provide that a controlled substance can be dispensed by a prescription “issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice.” 21 C.F.R. § 1306.04(a).

United States v. Armstrong, 550 F.3d 382, 396-97 (5th Cir. 2008), overruled in part on other grounds by United States v. Balleza, 613 F.3d 432, 433 n.1 (5th Cir. 2010). “Both prongs [of the regulation] are necessary for a prescription to be legitimate . . . .” Id. at 397. In accordance with that regulation, “a practitioner is unauthorized to dispense a controlled substance if the prescription either lacks a legitimate medical purpose or is outside the usual course of professional practice.” Id. (emphasis in original).

         At trial, the Government referenced and introduced the Mississippi State Board of Medical Licensure's rules and regulations as Exhibit “G-31, ” the Mississippi State Board of Medical Licensure's Administrative Code as Exhibit “G-31a, ” and the Mississippi Board of Pharmacy's regulations as Exhibit “G-32.” As the United States District Court for the Eastern District of Louisiana has explained,

in order to prove guilt under the statute, the government is allowed to produce evidence that the defendant violated state regulations on medical practice. While violation of a state statute regulating medical practice would not be evidence of guilt per se under the [Controlled Substances Act], these violations remain persuasive and relevant, particularly if the government can show a pattern of consistent violations.

United States v. Prejean, 429 F.Supp.2d 782, 801-02 (E.D. La. 2006), aff'd sub nom. Armstrong, 550 F.3d at 382.

         The Court's jury instructions included an accurate statement of the law, including a correct statement of what constitutes “good faith.” Tr. [116] at 234. The lack of an additional good faith defense instruction did not prevent Defendants from presenting a good faith defense, nor did it preclude the jury from considering such a defense. Moreover, Defendants did not raise an objection to the Court's failure to include this instruction in the final jury instructions. See Tr. [116] at 124-29.

         Defendants also assert that the following instruction should have been given:

Even though giving a judge something of value may be inappropriate or a violation of the ethical rules, such an act is not done corruptly so as to constitute a bribery offense unless it is intended at the time it is given to affect a specific action the judge officially will take in a case before him, or may take in a case that may be brought before him.
A gift or favor bestowed on a judge solely out of friendship, to promote good will, or for motive wholly unrelated to influence over official action does not violate the bribery statutes.

         Unnumbered Proposed Instruction [104-1] at 6. There was no legal or evidentiary basis to support giving this particular jury instruction, and it was wholly irrelevant to the offenses charged in this case. Defendants also did not raise any objection at trial to the Court omitting this instruction. See Tr. [116] at 124-29.

         Defendants' Motion, to the extent it is premised upon the failure to give the foregoing particular jury instructions, is not well taken and should be denied.

         D. The Court did not err in denying Ms. Bennett's Motion to Quash the Indictment for Prosecutorial Misconduct.

         Defendants contend that the Court committed reversible error when it overruled a Motion seeking to “quash[ ] the indictment for prosecutorial misconduct.” Mot. [104] at 2. It appears that Defendants are referring to Ms. Bennett's Motion to Quash Indictment [39], which was filed on February 16, 2016, and which sought to quash the original Indictment [3]. Ms. Bennett's Motion [39] challenged information the Government included in its Motion to Disqualify [32] Defendants' previous counsel, some of which was included in a subsequent newspaper article [39-1].

         Defendants have not offered any additional argument in support of their position that the Court erred in denying Ms. Bennett's Motion [39]. For the same reasons stated in the Court's previous Order [41] denying Ms. Bennett's Motion to Quash [39], the Court finds that Defendants' present Motion [104] should be denied as to this issue.

         E. The Court did not err in denying Ms. Bennett's ore tenus and written Motions for Mistrial.

         Defendants contend that the Court should have granted a mistrial on grounds that their Fifth Amendment rights were violated during trial. Mot. [104] at 2-5. According to Defendants,

1. The first time that the Bennetts' 5th amendment right was violated, was when the Mississippi attorney general's officer, Jamie Thompson, testified that he began his involvement in the case at bar when he was contacted by the DEA and Mississippi Bureau of Narcotics, and asked to investigate the Bennetts, and he testified in the government's case in chief on direct, that when they attempted to question the Bennetts at their home, [1] that the Bennetts advised that they did not want to speak because they had an attorney and that Mr. Bennett (alleged coconspirator of his wife, Sherrie) slammed the door in their face. This was a violation of their 5th amendment constitutional rights.[2]
2. The second time that Sherri [sic] Bennett's constitutional rights were violated was when the bankruptcy trustee, Lentz, testified in the government's case in chief, on direct, that she instituted adversarial proceedings against Sherrie Bennett, in bankruptcy court, “seeking relief with regard to some fraudulent transfers, the (3) checks she has [sic] written in spring of 2013, [”][3] but when the court tried to have a hearing, that Sherrie Bennett “said that she wanted to have a lawyer present” and refused to address the claim.

Id. at 4. According to Defendants, as to the second purported violation,

[t]his violation was further emphasized by the fact that the government had previously established, with an earlier witness, Chris Steiskal, . . . that the bankruptcy judge chastised her for trying to file a pleading while not being an attorney, and informed her that she would be referred to the authorities. Thus, she was already on notice that she was being criminally accused, which was magnified by the testimony of Lentz. While there was no objection to Steiskal's comment, the defendants will submit that there also was no claim that Sherrie Bennett asserted her 5th amendment right to not address the bankruptcy judge's charge.

Id. at 5 n.4. Defendants maintain that their objection was not to the failure of either to receive any Miranda warnings, but “the government's production of direct evidence to make the Bennetts appear guilty because they decided to ‘hide' behind an attorney rather than respond to the allegations.” Id. at 5 (footnote omitted).

         Jamie Thompson (“Mr. Thompson”) works with the Office of the Attorney General for the State of Mississippi, supervising a unit that deals with the investigation of abuse, neglect, and financial exploitation of vulnerable persons in the State of Mississippi. Tr. [112] at 236. Mr. Thompson was contacted about Dr. Lines by an agent with the Mississippi Bureau of Narcotics who was assigned to the Drug Enforcement Administration's Diversion Division and by someone from the Mississippi Board of Medical Licensure. Id. at 238. Mr. Thompson, another investigator from his office, and Beth Zoeller from Adult Protective Services visited Dr. Lines' home to assess its condition. Id. at 239-40.[4]

         Mr. Thompson testified that he had no contact with Jerry Bennett on this particular day. Id. at 249. However,

[t]here was another occasion that we went by there actually to try to interview the Bennetts in their home, and Mr. Bennett, Mr. Jerry Bennett, was actually the one who said, you know, We have nothing to say, and slammed the door in our face, so that was the end of our conversations with them. He informed us that he did have an attorney, and so we respected his right to counsel and didn't -

Id. at 249-50. Ms. Bennett's counsel then objected at sidebar, outside the hearing of the jury.

         Christopher Steiskal (“Mr. Steiskal”) is a trial attorney with the Office of the United States Trustee in Jackson, Mississippi. Tr. [112] at 190. At trial, Mr. Steiskal testified about the January 13, 2012, “341 hearing” that he conducted in the bankruptcy case, and that he had subsequently filed a motion in the bankruptcy case to convert the case to a Chapter 7 proceeding, dismiss the case out of bankruptcy, or appoint a Chapter 11 trustee. Id. at 191-94, 199, 207-08.

         Mr. Steiskal further testified as to a June 6, 2013, hearing where United States Bankruptcy Judge Katherine Samson inquired about a handwritten pleading submitted by Ms. Bennett. Id. at 210-13. According to Mr. Steiskal, Judge Samson asked Ms. Bennett if she was an attorney, and Ms. Bennett responded “no.” Id. at 212. Mr. Steiskal's testimony continued as follows:

[Q.] And so what happened with that motion?
A. Well, the Court asked her if she was an attorney; she answered no. And the Court stated that this document would be stricken from the record because it was not filed by an attorney and that the Court would, you know, refer Ms. Bennett to the proper authorities for -- because by filing a document and not being an attorney, you're practicing law without a license.
Q. All right. Did the Court enter an order regarding that ruling?
A. Yes. The Court entered a subsequent order striking the --striking this document.

Id. at 213. Defense counsel did not lodge a contemporaneous objection to this testimony.

         Ms. Lentz is a bankruptcy attorney and Chapter 7 panel bankruptcy trustee. Tr. [113] at 68. Ms. Lentz testified as to the rarity of appointing a trustee in a Chapter 11 bankruptcy case, her appointment in the Clinic's bankruptcy case, and her filing of an adversary complaint against Ms. Bennett in the bankruptcy proceeding along with a motion for preliminary injunction. Id. at 68, 90-93. When Ms. Lentz was asked, “what did you do after this motion was filed? Was an order entered?, ” she responded,

[t]here was a -- yes, there was a -- well, what happened -- I believe what happened was is that when we -- we went to the bankruptcy court to have a trial, and there's -- Ms. Bennett showed up and said that she wanted to have a lawyer present, and so rather than entering a preliminary injunction --

Id. at 93. Ms. Bennett's counsel raised an objection and made an ore tenus motion, which was heard outside the presence of the jury. Id.

         Although Defendants assert that their objection is not based upon Miranda, at trial Ms. Bennett's counsel argued that Mr. Thompson had violated Mr. Bennett's Fifth Amendment right to remain silent and failed to read Mr. Bennett his Miranda rights. Tr. [112] at 250-51. Defense counsel also cited the case “Hale v. State” as a ground for mistrial.[5] Id. at 251. The Court denied the request for a mistrial and gave a curative instruction. Id. at 252. During Ms. Lentz's testimony, counsel also objected regarding Ms. Bennett requesting an attorney at an adversary bankruptcy proceeding. The Court overruled this objection. See Tr. [113] at 93-96.

         Later that same day, after the lunch break, the Court instructed the jury as follows:

In a moment, we're going to resume the direct examination of Ms. Lentz. Before we do that, I did want to clarify one thing that occurred earlier. When Ms. Lentz was testifying, there was an objection Mr. Crosby made about a statement that Ms. Lentz made about her believing that Ms. Bennett had an attorney at the bankruptcy proceeding. I just want to make sure I explain to you that that statement is not relevant, and so I direct you to disregard it. It has really nothing to do with what we're here on. So I want to make sure that we're clear on that.

Id. at 106.

         Ms. Bennett then filed a Motion for Mistrial [72], which the Court denied. See Order [77] at 1; see also Tr. [115] at 81-87. The Court determined that Defendants' reliance upon Hale and Miranda in this context was misplaced, and that there was no right to counsel as to either Defendant at the relevant times. Tr. [115] at 82-87.

         Defendants have not cited any additional legal authority in support of these grounds to their Motion. For the reasons the Court stated on the record at trial, ...


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