United States District Court, S.D. Mississippi, Southern Division
DENYING DEFENDANT SHERRIE BOX BENNETT'S  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
, ,  MOTIONS FOR JOINDER IN 
SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE
THE COURT are the Motion  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
, ,  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  for Judgment of
Acquittal or Alternatively, Motion for New Trial, and the
Motions for Joinder , ,  should all be denied.
Neither Defendant is entitled to a judgment of acquittal or a
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
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.
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  (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.  (Bankr. S.D.Miss. May 7, 2013).
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 
(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
 (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  (Bankr. S.D.Miss.
June 11, 2013).
17, 2013, Ms. Lentz, as trustee, filed an adversary
proceeding against Ms. Bennett. Lentz v. Bennett,
No. 13-05024 Compl.  (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.
August 4, 2015, a federal grand jury returned an 11-count
Indictment  against Ms. Bennett and Mr. Bennett
(collectively, “Defendants”). On April 5, 2016,
the Grand Jury returned a First Superseding Indictment .
Count 1 of the First Superseding Indictment  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  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.
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 . 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.
 at 1-2. Ms. Bennett sought to use Dr. Pitruzzello's
deposition testimony at trial. The Government filed a
Response  in opposition to the Motion . On July 15,
2016, the Court entered an Order  denying Ms.
Bennett's Motion .
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  at 2.
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.
being granted additional time to do so by the Court, on
September 29, 2016, Ms. Bennett filed the present Motion
 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
, , , which evidence his joinder in Ms.
Bennett's Motion and which essentially seek the same
relief. The Government filed Responses ,  in
opposition to Defendants' Motions, without the benefit of
a transcript. Ms. Bennett filed a Reply , in which Ms.
Bennett recited sections of the trial transcript, and Mr.
Bennett joined .
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 . On October 27, 2016, the
Government filed a Motion  for Extension of Time,
requesting until November 8, 2016, to respond. The Court
granted the Government's Motion  by Text Order
entered on October 28, 2016.
October 29, 2016, the Government filed its Response ,
which does not specifically address all of the record
citations set forth in the Reply . Nor did the
Government cite any legal authority in the majority of the
sections of its Reply . 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)).
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
(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
(7) As for Counts 12, 13, and 14 of the First Superseding
Indictment , the Court erred in instructing the jury in
the disjunctive, rather than the conjunctive, under 18 U.S.C.
(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
(10) The Court exhibited judicial bias; and
(11) Defendants have acquired new evidence, specifically the
testimony of Anita Bonner Cotton.
considered Defendants' Motion on the merits, Defendants
are not entitled to the relief they seek.
Relevant legal authority
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
United States v. Vargas-Ocampo, 747 F.3d 299, 303
(5th Cir. 2014) (en banc).
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.
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.
The Court did not err in failing to grant Defendants'
Motions for Judgment of Acquittal at the close of the
close of the Government's case-in-chief, both Defendants
moved for judgment of acquittal. See Tr.  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.  at 2.
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.  at 230-31.
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.  at 232-33.
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.
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.
 at 236-37.
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.
The Court did not err in omitting certain jury
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.
 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.
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.  at 2.
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)).
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.  at 124-29.
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.
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.”
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. §
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).
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
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.
Court's jury instructions included an accurate statement
of the law, including a correct statement of what constitutes
“good faith.” Tr.  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.  at 124-29.
also assert that the following instruction should have been
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
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
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.  at 124-29.
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.
The Court did not err in denying Ms. Bennett's Motion
to Quash the Indictment for Prosecutorial Misconduct.
contend that the Court committed reversible error when it
overruled a Motion seeking to “quash[ ] the indictment
for prosecutorial misconduct.” Mot.  at 2. It
appears that Defendants are referring to Ms. Bennett's
Motion to Quash Indictment , which was filed on February
16, 2016, and which sought to quash the original Indictment
. Ms. Bennett's Motion  challenged information the
Government included in its Motion to Disqualify 
Defendants' previous counsel, some of which was included
in a subsequent newspaper article [39-1].
have not offered any additional argument in support of their
position that the Court erred in denying Ms. Bennett's
Motion . For the same reasons stated in the Court's
previous Order  denying Ms. Bennett's Motion to Quash
, the Court finds that Defendants' present Motion
 should be denied as to this issue.
The Court did not err in denying Ms. Bennett's ore
tenus and written Motions for Mistrial.
contend that the Court should have granted a mistrial on
grounds that their Fifth Amendment rights were violated
during trial. Mot.  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,
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
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,
[”] 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
Id. at 4. According to Defendants, as to the second
[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
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).
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.  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.
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.
Steiskal (“Mr. Steiskal”) is a trial attorney
with the Office of the United States Trustee in Jackson,
Mississippi. Tr.  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.
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
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.
Lentz is a bankruptcy attorney and Chapter 7 panel bankruptcy
trustee. Tr.  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.
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.  at 250-51.
Defense counsel also cited the case “Hale v.
State” as a ground for mistrial. 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.  at 93-96.
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.
Bennett then filed a Motion for Mistrial , which the
Court denied. See Order  at 1; see also
Tr.  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.  at
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, ...