FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-30389
Plaintiff-Appellee,
D.C. No.
v. 2:10-cr-06070-EFS-1
KENYON NEAL LYLE, JR.,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Eastern District of Washington
Edward F. Shea, Senior District Judge, Presiding
Argued and Submitted
November 8, 2013—Seattle, Washington
Filed February 5, 2014
Before: Mary M. Schroeder, Richard A. Paez,
and Marsha S. Berzon, Circuit Judges.
Opinion by Judge Berzon
2 UNITED STATES V. LYLE
SUMMARY*
Criminal Law
The panel affirmed the district court’s denial of a motion
to dismiss an indictment charging two counts of violating
18 U.S.C. § 1365(a), which prohibits tampering with any
consumer product that affects interstate commerce or foreign
commerce, or the labeling of, or container for, any such
product.
The panel held that the indictment – which specifically
alleged that the defendant opened a box containing Fentanyl
patches, removed the patches, and re-glued the box –
sufficiently alleged tampering with the container for a
consumer product in violation of § 1365(a).
COUNSEL
Jeffry Keith Finer, Spokane, Washington, for Defendant-
Appellant.
Alexander C. Ekstrom, Assistant United States Attorney,
Yakima, Washington, for Plaintiff-Appellee.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. LYLE 3
OPINION
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.
I.
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,1 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
1
Fentanyl patches are applied to the skin to treat chronic pain.
4 UNITED STATES V. LYLE
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 States Code.
Lyle moved to dismiss these counts for failure to state an
offense. The district court denied the motion, reasoning that
the indictment charged Lyle “not only with tampering with
the patches, but also tampering ‘with the labeling of and
container for’ the Fentanyl patches, and it allege[d] facts that
constitute tampering with the patches’ containers.” The
district court concluded that “[t]he charged conduct thus
tracks the language of § 1365(a), which ends the Court’s Rule
12 inquiry.”
Lyle entered a guilty plea, and was sentenced to 48
months in prison. He reserved the right to appeal the district
court’s denial of his motion to dismiss the tampering charges.
II.
We review de novo the denial of Lyle’s motion to dismiss
the indictment on the basis of the district court’s
interpretation of § 1365(a). See United States v. Boren,
278 F.3d 911, 913 (9th Cir. 2002). “In ruling on a pre-trial
motion to dismiss an indictment for failure to state an offense,
[we are] bound by the four corners of the indictment.” Id. at
914. We “must accept the truth of the allegations in the
indictment in analyzing whether a cognizable offense has
been charged.” Id.
UNITED STATES V. LYLE 5
Lyle asks us to reverse the district court’s holding that the
indictment sufficiently alleged “tamper[ing]” within the
meaning of § 1365(a). He contends that the alleged acts of
“opening” the box and “removing” the Fentanyl patches
“support no more than a theft[,]” and “re-gluing” the box and
“returning” it to the storage cabinet are “acts of . . .
concealment” — not tampering. Because theft of a consumer
product does not constitute “tamper[ing]” under § 1365(a),
Lyle urges us to hold that the indictment failed to state an
offense. We decline to do so.
Section 1365(a) punishes “[w]hoever, with reckless
disregard for the risk that another person will be placed in
danger of death or bodily injury and under circumstances
manifesting extreme indifference to such risk, tampers with
any consumer product that affects interstate or foreign
commerce, or the labeling of, or container for, any such
product . . . .” There are thus three distinct ways to violate
§ 1365(a): (1) by “tamper[ing]” with a consumer product;
(2) by “tamper[ing]” with the labeling of a consumer product;
or (3) by “tamper[ing]” with the container for a consumer
product. Congress did not define the term “tamper[ .]” See
18 U.S.C. § 1365(h).
When a term is undefined, we first ask “whether the
‘ordinary, contemporary, [and] common meaning’ of the
language answers the question.” United States v. Thompson,
728 F.3d 1011, 1015 (9th Cir. 2013) (alteration in original)
(citation omitted). In interpreting the plain language of a
statute, we “constru[e] the provisions of the entire law,
including its object and policy, to ascertain the intent of
Congress.” Boren, 278 F.3d at 914–15. But where “the
language is ambiguous or is capable of more than one
reasonable interpretation, we ‘consult the legislative history,
6 UNITED STATES V. LYLE
to the extent that it is of value, to aid in [the] interpretation.’”
Thompson, 728 F.3d at 1015 (citation omitted).
A.
Lyle asserts that “Congress intended the term ‘tamper’ to
mean either an adulteration of the contents or an alteration of
its container or labeling.” He offers several dictionary
definitions in support of his interpretation. The two
definitions provided by Black’s Law Dictionary best illustrate
the disagreement between the parties. The first definition is
“[t]o meddle so as to alter (a thing); esp., to make changes
that are illegal, corrupting, or perverting.” Tamper
Definition, Black’s Law Dictionary 1592 (9th ed. 2009). Lyle
would have us adopt this definition. The government
advocates for a second, broader definition: “[t]o interfere
improperly; to meddle.” Id.
Both definitions are well supported. The Oxford English
Dictionary, for example, defines “tamper” as both “[t]o have
to do or interfere with improperly; to meddle with (a thing),”
and “[t]o meddle or interfere with (a thing) so as to misuse,
alter, corrupt, or pervert it.” Tamper Definition,
http://www.oed.com/ (last visited Dec. 27, 2013). The
American Heritage Dictionary defines “tamper” as “to
interfere in a harmful or disruptive manner; meddle[,]” “[t]o
make alterations or adjustments, especially secretly so as to
subvert an intended purpose or function[,]” “[t]o tinker rashly
or foolishly[,]” and “to alter improperly” — thus
encompassing both a broader “interfere” or “tinker” and a
narrower “alter” meaning. Tamper Definition,
http://www.ahdictionary.com/ (last visited Jan. 7, 2014). The
Merriam-Webster Dictionary refers to the criminal charge of
“tampering with consumer products” as an example of its
UNITED STATES V. LYLE 7
fourth definition: “to render something harmful or dangerous
by altering its structure or composition.” Tamper Definition,
http://www.m-w.com/dictionary/tamper (last visited Dec. 27,
2013).
Thus, although relevant sources support the narrower
definition advocated by Lyle, dictionaries alone fail to
provide a single “ordinary, contemporary, [and] common”
definition of “tamper[ing]” within the meaning of § 1365(a).
Thompson, 728 F.3d at 1015. Mere meddling with a
consumer product or its packaging could be sufficient to
establish “tamper[ing]”; but “tamper[ing]” could also mean
that a defendant must meddle in a way that alters or
adulterates the product or its packaging. We therefore
consider the legislative history of § 1365(a), as well as “its
object and policy, to ascertain the intent of Congress.”
Boren, 278 F.3d at 914–15.
B.
The Federal Anti-Tampering Act was enacted in 1984, in
the wake of a series of deaths resulting from consumers
ingesting Tylenol laced with cyanide. See S. Rep. No. 98-69,
at 3 (1983); H.R. Rep. No. 98-93, at 3 (1983). Congress
assumed that the deaths occurred because “one or more
persons purchased the capsules, tampered with them,
reinserted the capsules into the bottles and boxes in which
they were sold, and then surreptitiously placed them on the
store shelves from which the victims purchased them.”
S. Rep. No. 98-69 at 4. As a result of the cyanide poisonings,
the manufacturer of Tylenol suffered serious damage to its
business, and copycat crimes were reported, including false
tampering claims that scared consumers. Id.
8 UNITED STATES V. LYLE
The Senate and House both took up the anti-tampering
cause. The Senate’s version of the bill, Senate Bill 216,
originally applied to “[w]hoever, with intent to kill, injure or
otherwise endanger the health or safety of any person or to
cause significant damage or injury to the business of an
individual . . . tampers with and thereby taints, or tampers
with and thereby renders materially false or misleading the
labeling of . . . or container for . . . any household product
. . . .” S. 216, 98th Cong. (1983) (emphasis added). This
version of the bill reflected the understanding that any
tampering had to cause a change in the product or its
packaging. Indeed, the Senate Report specifically adopted
the following, narrow definition of “tamper”:
“Tamper” is a word of common usage and of
general understanding. . . . It is defined in
Webster’s New International Dictionary
(Merriam), 2nd Edition as: “3. To meddle so
as to alter a thing; esp. to make corrupting or
perverting changes, as to tamper with a
document or a text; to interfere with
improperly.” The term “tamper,” when used
in a criminal statute “has the limited meaning
of improper interference ‘as for the purpose of
alteration, and to make objectionable or
unauthorized changes.’”
S. Rep. No. 98-69 at 7 (quoting State v. Harlston, 565 S.W.
2d 773, 778–89 (Mo. 1978)) (emphasis added). Senate Bill
216 passed the Senate on May 9, 1983 by a voice vote. See
129 Cong. Rec. 11,510 (1983).
The House then took the bill under consideration, and
amended subsection (a) to include the language ultimately
UNITED STATES V. LYLE 9
enacted: “[w]hoever, with reckless disregard for the risk that
another person will be placed in danger of death or bodily
injury and under circumstances manifesting extreme
indifference to such risk, tampers with any consumer product
that affects interstate or foreign commerce, or the labeling of,
or container for, any such product, or attempts to do so, shall
. . . .” 129 Cong. Rec. 26,464 (1983). The House version
thus lowered the mes rea requirement from intent to
recklessness, and removed the Senate’s requirement that an
individual “tamper[] with and thereby taint[], or tamper[]
with and thereby render[] materially false or misleading” for
a conviction under § 1365(a). Although the amendment’s
sponsor, Congressman William J. Hughes, did not directly
explain the reason for these changes, speaking to the House,
he described the difference between “tampering” and
“tainting”:
“Tainting”. . . is broader than the concept of
“tampering” . . . . “Tampering” requires
affirmative human conduct that changes the
nature of the product, in a manner that causes
a risk of death or bodily injury. “Tainting,”
. . . means “to modify with a trace of
something offensive or deleterious, or to
infect, contaminate, or corrupt[,] * * * such an
‘offensive’ or ‘contaminating’ result would be
the addition of an unsightly or nauseating
substance, as well as a dangerous substance.”
129 Cong. Rec. 26,465 (1983).
After passing the House, id. at 26,466, the amended bill
went back to the Senate the next day, where it was
championed by Senator Strom Thurmond. See id. at 26,610.
10 UNITED STATES V. LYLE
Senator Thurmond described the differences between the
House and Senate versions, including that “[t]he House
amendment deletes the references to tainting and material
misbranding in the basic tampering offense.” Id. at 26,612.
But he noted that “[s]ince the basic offense involves a risk of
death or injury, the tampering activity will necessarily
encompass a tainting or material label alteration, and those
requirements need not be spelled out.” Id. (emphasis added).
The legislative history thus shows that both houses of
Congress viewed “tamper[ing]” as requiring some alteration
of the product or its packaging. The Senate accepted the
House’s version of the bill that omitted the requirement that
the tampering “thereby taint” or “thereby render materially
false or misleading” because it thought the language
unnecessary, not inaccurate.
In light of Congress’ clear statements upon enacting
§ 1365(a), and consistent with the rule of lenity, see United
States v. Santos, 553 U.S. 507, 514 (2008), we agree with
Lyle that the more restrictive definition of “tamper” — one
that requires alteration or adulteration of the item tampered
— should apply.
C.
Our conclusion is supported by the few court of appeals
decisions construing § 1365(a). For example, the Eighth
Circuit wrote that “the term ‘tampers’ . . . describes the
physical act of product adulteration.” United States v. Moyer,
182 F.3d 1018, 1020 (8th Cir. 1999). Moyer concerned a
physician who stole morphine from her patients’ IV units and
replaced the drug with saline. She challenged her conviction
on the ground that the term “tampers” requires a showing of
malicious intent. Id. The court declined to read such an
UNITED STATES V. LYLE 11
intent into the statute, but in so doing, suggested that the
“ordinary meaning of the term” “tamper” requires
“adulteration.” Id. at 1020–21.
United States v. Garnett, 122 F.3d 1016 (11th Cir. 1997),
likewise supports the narrower definition of “tamper[ing].”
Garnett held that “removing a drug and replacing it with a
substitute constitutes tampering under § 1365(a).” Id. at
1018. In support of its conclusion, the Eleventh Circuit noted
that the Federal Food, Drug and Cosmetic Act, 21 U.S.C.
§§ 301, which § 1365(a) was designed to strengthen, “defines
substitution as a form of adulteration.” See Garnett, 122 F.3d
at 1018 (citing 21 U.S.C. § 351(d)). Notably, the court did
not hold Garnett liable simply because he removed some
hydrocodone tablets from a bottle. Rather, it held that
Garnett “reduced the efficacy of [the] bottle . . . by
introducing other drugs into the bottles after scratching off
their identifying marks.” Id. (emphasis added). It was that
act, which adulterated the consumer product, that constituted
“tamper[ing]” within the meaning of § 1365(a).
III.
The indictment here sufficiently alleged “tamper[ing.]”
The indictment specifically alleged that Lyle “open[ed]” a
box containing Fetanyl patches, “remov[ed]” the patches, and
“re-glu[ed]” the box. Combined, the acts of opening a box
and re-gluing it closed alter that box. Opening a box
eliminates the secure closure affixed in the factory, which
assures that the contents of the box remain as represented on
it until sold. Re-gluing a box alters the container further, by
introducing a material — new glue — not installed by the
manufacturer, and by creating a false impression of a secure
package. Taken together, these acts constitute “tamper[ing]
12 UNITED STATES V. LYLE
with . . . [the] container for” a consumer product in violation
of § 1365(a).2
We find unpersuasive Lyle’s citation to a 2002 House
Report, which describes § 1365(a) as having “le[ft]
unregulated conduct which neither adulterates the actual
product nor alters the labeling.” H.R. Rep. No. 107-485, at 2
(2002). Relying on this statement, Lyle contends that merely
altering the “container for” a consumer product, as he is
alleged to have done, does not violate § 1365(a). “In
evaluating the weight to be attached to th[is] statement[],” we
consider “the oft-repeated warning that ‘the views of a
subsequent Congress form a hazardous basis for inferring the
intent of an earlier one.’” Consumer Prod. Safety Comm’n v.
GTE Sylvania, Inc., 447 U.S. 102, 117 (1980) (citations
omitted). A congressional statement made twenty years after
the enactment of § 1365(a) is of little use in ascertaining the
statute’s meaning. This admonition is particularly pertinent
where, as here, the post-enactment summary cannot be
reconciled with the statute’s language, which specifically
prohibits tampering with a container, as well as with the
product and its label. See § 1365(a).3 Because the indictment
2
Whether opening the box alone constitutes “tamper[ing]” we need not
decide. As a practical matter, it is unlikely that an open box would be sold
or bought, so the other elements of § 1365(a) are unlikely to be met.
3
We note that Lyle has not challenged whether the mens rea element of
§ 1365(a) is met. We therefore do not decide whether “removing”
Fentanyl patches from their container — essentially theft of a consumer
product — and taking steps to conceal that theft by tampering with the
container, demonstrates “reckless disregard for the risk that another person
will be placed in danger of death or bodily injury, and under
circumstances manifesting extreme indifference to such risk.” § 1365(a).
Although other circuits have held that any “tampering that reduces the
efficacy of a drug designed to save life or alleviate a bodily injury”
UNITED STATES V. LYLE 13
sufficiently alleges that Lyle tampered with the container, we
affirm.
AFFIRMED.
suffices for § 1365(a), United States v. Cunningham, 103 F.3d 553, 556
(7th Cir. 1996), this circuit has not so held.