United States v. Sherrie Bennett
2017 U.S. App. LEXIS 20176
| 5th Cir. | 2017Background
- Sherrie Bennett, a registered nurse at Biloxi Radiation Oncology Center, was convicted of conspiracy and multiple counts for distributing controlled substances and three counts of bankruptcy fraud; sentenced to concurrent prison terms, fines, and restitution.
- Government evidence showed prescriptions in Dr. Laurence Lines’s name issued for the Bennetts and family members, with no supporting medical records and use of Dr. Lines’s DEA number and a signature stamp; Bennetts benefited financially and exercised influence over Dr. Lines.
- During the Clinic’s Chapter 11 case, Bennett retained control of check-writing before a trustee’s appointment; three checks (totaling about $54,636) were traced to her and formed the basis for bankruptcy fraud counts.
- At trial, the district court denied several of Bennett’s requested jury instructions, refused mistrial motions based on alleged prejudicial testimony, allowed the government to correct an inaccurate discovery list, and denied post-trial motions alleging prosecutorial misconduct.
- On appeal Bennett challenged jury instructions, denial of mistrials for prejudicial testimony and prosecutorial misconduct, amendment/variance between indictment and jury charge, and sufficiency of the evidence; the Fifth Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jury instructions — use of medical regulations | Bennett: Court should have instructed distinction between regulatory violations and criminal intent; her proposed "corruptly"/good-faith instructions were necessary | Gov: Jury could consider medical standards to determine whether conduct was outside professional practice; statute elements do not require "corruptly" | Court: No abuse of discretion. Regulations permissible to define "outside usual course"; proposed instructions incorrect or irrelevant. |
| Mistrial for prejudicial testimony (references to invocation of counsel) | Bennett: Testimony implying invocation of rights was prejudicial and warranted mistrial | Gov: Testimony related to welfare check and civil proceedings; jury instructed to disregard; rights are personal not vicarious | Court: No abuse; curative instructions cured any prejudice; no error. |
| Prosecutorial misconduct in closing/rebuttal | Bennett: Prosecutor shifted burden, vouched, referenced evidence not in record, expressed personal belief in defendant’s guilt | Gov: Rebuttal responded to defense attacks accusing actors of bias/financial motive | Held: Remarks improper (shifted burden, vouching, personal opinion), but harmless given curative instructions and strong, multi-source evidence. No reversal. |
| Indictment language variance ("and" v. "or") | Bennett: Jury instructions changed conjunctive wording to disjunctive, amounting to constructive amendment | Gov: Disjunctive statute may be pled conjunctively and proved disjunctively; no prejudice | Held: No constructive amendment; precedent allows pleading/ proof difference; harmless. |
Key Cases Cited
- United States v. Brown, 553 F.3d 768 (5th Cir. 2008) (regulations may clarify scope of criminal statute but may not replace it)
- United States v. Christo, 614 F.2d 486 (5th Cir. 1980) (reversal where trial focused on civil regulatory intent instead of felony standard)
- United States v. Armstrong, 550 F.3d 382 (5th Cir. 2008) (prescriptions outside usual course of professional practice support criminal liability)
- United States v. Holley, 831 F.3d 322 (5th Cir. 2016) (conjunctive pleading vs. disjunctive proof is permissible)
- United States v. Haymes, 610 F.2d 309 (5th Cir. 1980) (same principle regarding conjunctive/ disjunctive language)
- Hall v. United States, 419 F.2d 582 (5th Cir. 1969) (prosecutor may not express personal opinion of defendant’s guilt)
- United States v. Young, 470 U.S. 1 (1985) (need to weigh prosecutor remarks in context, including defense arguments)
- Giglio v. United States, 405 U.S. 150 (1972) (prosecutor must disclose promises to witnesses)
- Brady v. Maryland, 373 U.S. 83 (1963) (prosecutor must disclose exculpatory evidence)