F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A M E R I C A , P laintiff-Appellee
,

v.

K E N Y O N N E A L L Y L E , J R ., Defendant-Appellant

. No. 12-30389

D.C. No. 2:10-cr-06070-EF S-1

OPI NI ON

A ppeal from the United States District Court for the Eastern District of W a shing ton E dward F . Shea, Senior District J udg e, Presiding

Arg ued and Submitted November 8, 2013—Seattle, W ashing ton

F iled F ebruary

5, 2014

B efore: Mary M. Schroeder, Richard A. Paez
, and Marsha S. B erz on, Circuit J udg es.
Opinion by J udg e B e rz onU N I T E D S T A T E S V

. L Y L E 2

SUMMARY *

Crim inal Law

The panel affirmed the district court’s denial of a motion
to dismiss an indictment charg ing t w o c ounts of violating 18 U.S.C. § 1365(a), w hich prohibits tampering wi t h any

consumer product that affects interstate commerce or foreig n commerce, or the la b eling of, or container for, a ny such product.

The panel held that the indictment – which specifically alleg ed that the defendant opened a box containing F entany l patches, removed the patch e s , and re-g lued the b ox

– sufficiently alleg ed tampering wit h t h e container f or a consumer product in violation of § 1365(a).

COUNSEL

J effry Keith F ine r , Spokane, W ashing ton, for D efendantAppellant.

Alex a nder C. Ekstrom, Assistant U n ited States Attorney
, Yakima, W ashing ton, for Plaintiff-Appellee.

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

. L Y L E 3

OP INION

B ERZ ON, Circuit J udg e :

Keny on L y le was indicted on two counts of vio l a t i ng 18 U.S.C. § 1365(a), which prohibits “tamper[ ing ] wi t h any

consumer product that affects interstate or foreig n commerce,

or the l a b e l i n g of, or container f or, any such p roduct

. . . . ” L y le moved to dismiss these counts pursuant to F ederal Rule of Criminal Procedure 12(b)(3)(B ), asserting that the conduct alleg ed in the indictment did not constitute “tamper[ ing ] ” with i n t h e meaning of § 1365(a). The district court denied the motion to dismiss. W e affirm.

I.

L y le worked as a pharmacist at a Safeway in Kennewick, W a shing ton. After a customer filed a police report alleg ing she had purchased an e mpty box of F enta n y l p a tches, 1 the
p h armacy was investig a ted, and twelve additional empty box es were discovered. T he investig ation turned to L y le, a nd he was charg e d with, inter a lia
, tam p e r i n g with a consumer product in violation of § 1 365(a). Specifically
, the indictment alleg ed that L y le:

with reckless disreg ard for the r i s k that another person would be placed in d a n ger o f bodily injury
, and under circumstances manifesting ex treme indifference to such risk, did tamper with a consumer p roduct that affect e d interstate a

nd foreig n commerce, specifically F entanyl, and w ith the labeling o f

1 Fen tan y l p atch es are ap p lied to th e sk in to treat ch ro n ic p ain

.U N I T E D S T A T E S V

. L Y L E 4

and containe r for such a p r oduct by opening the manufacturer’s box containing F e ntany l patches, by removing said Fentany l patches, by re-g luing said manufacturer’s box a nd returning said manufacturer’s box es to a

s e c ured narcotics storag e cabinet, all in violation of Section 1365(a) of Title 18 of the United States Code.

L y le moved to dismiss these counts f or failure to state an offense. The district court denied the motion, reasoning that the indictment charg ed L y le “no t only w ith tampering with the patches, but also tampering ‘ w i t h the labeling of and container for ’ the F entanyl patches, and it alleg e[ d] facts that constitute tampering w ith t h e p atches’ containers.” The district court concluded that “[ t] h e c harg ed conduct thus tracks the lang uag e of § 1365(a), which ends the Court’s Rule 12 inquiry .”

L y le entered a g uilty plea, and was s e ntenced to 48 months in prison. He reserved the rig h t to appeal the district court’s denial o f his motion to dismiss the tampering charg es.

II.

W e review de n ovo the denial of L y le’s motion to dismiss the indictment on the bas i s of the district court’s interpretation of § 1365(a). See U nited States v

. Boren
, 278 F .3d 911, 913 (9th Cir. 2002). “I n rulin g o n a p r e-trial motion to d ismiss an indictment for failure to state an offense, [ we are] bound by the four corners of the indictment.” Id

. at 914. W e “must accept the truth of the alleg ations i n t he indictment in analy

z ing w h e t h e r a cog niz able offense has been charg ed.” I

d.U N I T E D S T A T E S V

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L y le asks us to reverse the district c ourt’s holding that the indictment sufficiently alleg ed “ tamper[ ing ] ” within the meaning o f § 1 365(a). He conte n ds that the a lleg ed acts o f “opening ” the box a

nd “re moving ” the F entany l patches “support no more than a theft[ ,] ” and “re-g luing ” the box a nd “returning ” it to the storag e cabinet are “acts o f

. . . concealment” — not tampering

. B ecause theft of a consumer product does not c o nstitute “tamper[ ing ] ” under § 1 3 6 5 ( a), L y le urg es us to hold that the indict m e n t failed to state an offense. W e decline to do so.

Section 1365(a) p unishes “[ w] hoe ver, with reckless disreg ard for the ri s k t h at another p erson will be placed in dang er of death or bodil y injury and under circumstances manifesting ex treme indifference to such risk, tampers with
any consumer product that a f fects interstate or foreig n commerce, or the labeling of, or container for, a ny such product

. . . .” Ther e a r e t hus three distinct way s to violate § 1365(a): (1) by “tamper[ ing ] ” w ith a consumer product; (2) by “tamper[ ing ] ” with the labeling of a consumer product;

or (3) by “tamper[ ing ] ” with the contain er for a consumer product. Cong ress did not defin e t h e term “tamper[ .] ” See 18 U.S.C. § 1365(h).

W h en a term is undefined, w e first ask “whether the ‘ordinary
, c ontemporary , [and] common meaning ’ of the lang uag e a

nswers the question.” United States v

. Thompson
, 72 8 F. 3 d 1011, 1015 ( 9th Cir. 2013) (alteration in orig inal) ( c i t a tion omitted). I n interpreting the plain lang uag e o f a statute, we “constru[ e] the provisions of the entire law, includ i n g i t s object and policy
, to ascertain the intent o f Cong r ess.” B oren , 278 F .3d at 9 14–15. B u t where “the lang uag e i s ambig uous or is capable of more than o ne reasonable interpretation, we ‘consult the leg islative history
,U N I T E D S T A T E S V

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to the ex tent that it is of value, to aid in [ the] interpretation.’” Thompson , 728 F .3d at 1015 (citation omitted).

A.

L y le asserts that “ Cong ress intended the term ‘tamper’ to

mean either an adulteration of the c o n tents or an alteration o f its container or labeling .” H e offers several dictionary definitions in support of his i n t er p retation. T he two definitions provided by B lack’s L aw Dictionary best illustrate the disag reement between the parties. The first definition is “[ t] o meddle so as to a l t e r ( a thing ); esp., to make chang e s t h a t are illeg al, corrupting
, or perverting .” Tamper Definition
, B lack’s L a

w Dictionary 1592 (9th ed. 2009). L y le would have us adopt t h i s d efinition. The g overnment advocates for a second, broader definition: “[ t] o i n t erfere improperly ; to meddle.” Id.

B o th definitions a

re well supported. The Ox ford Eng lish Dictionary
, for ex ample, defines “tamper” a s both “[ t] o have
to do o r interfere with improperly ; to meddle with (a thing ),” and “[ t] o meddle o r interfere wit h ( a t h i ng ) so as to misuse, alter, corrupt, or p erve r t it.” Tamper Definition
, http://www.oed.com/ (last vi s i ted Dec. 27, 2013). The American Heritag e Diction a r y d efines “tamper” as “to interfere in a harmful or disruptive manner; meddle[ ,] ” “[ t] o

m a k e alterations or a djustments, especially secretly so as t o subvert an intended purpose or f unction[ ,] ” “[ t] o tinker rashly

or foolishly [ ,] ” a

nd “to al t er improperly ” — thus encompassing both a broader “interfere” or “tinke r ” and a

n a r r o w e r “ a l t e r ” m e a n i n g

. T a m p e r D e f i n i t i o n , http://www.ahdictionary .com/ (last visited J an. 7, 2 014). The Merriam-W ebster Dictionary refers to the criminal c harg e o f “tampering with consumer p roducts” as an ex ample of itsU N I T E D S T A T E S V

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fourth d efinition: “to render something harmful or dang erous by altering its structure or composition.” Tamper Definition
, http://www.m-w.com/dictionary /t a m p e r (last v isited Dec. 27, 2013).

Thus, a lthoug h r elevant s o u r ces support the n arrower def inition advocated by L y le, dictionaries alone f a il to provide a sing le “ordinary
, contemporary , [ a n d ] common” definition of “ tamper[ ing ] ” within the meaning of § 1365(a). Thompson
, 728 F .3d at 1015. Mere meddling with a

consumer produc t o r its packag ing could be sufficient to establish “tamper[ ing ] ” ; but “tamper[ ing ] ” cou ld a lso mean that a defendant must meddle in a way that alters o r adulterates the product or its packag ing

. W e therefore consider the leg islative history o f § 1365(a), as well as “its object a nd policy
, to ascertai n the intent of Cong ress.” Boren , 278 F .3d at 914–15.

B.

The F ederal Anti-Tampering Act was enacted in 1984, in th e wake of a series of deaths resulting from consumers ing esting Ty lenol laced with cy anide. See S. Rep. No. 98-69,
at 3 (1983); H.R. Rep. No. 98-93, at 3 (1983). Cong re s s

as s u m e d that the deaths occurred b e c ause “one o r more persons purchased the capsules, tampered with them, reinserted the cap s u l es into the bottles and box es in which they were sold, and then surreptitiously placed them on the
store shelves from which the victims p u r c h a sed them.” S. Rep. No. 98-69 at 4. As a r esult of the cy anide poisoning s, the manufacturer of Ty lenol suffered serious damag e to its bus iness, and copy c a t c rimes were reported, including false tampering claims that scared consumers. Id.U N I T E D S T A T E S V

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The Senate and H ouse both took up the anti-tampering

cause. The Senate’s v ersion of the bill, Senate B ill 21 6
, orig inally applied to “ [ w] hoever, with intent to kill, injure o r otherwise endang er the healt h or safety of any person or to

cause sig nificant d amag e or injury to the business o f an individual

. . . tampers with and thereby taints, o r t a m p ers with and thereby re n d

er s materially false or misleading the labeling of

. . . or container for

. . . any household product

. . . .” S. 2 1 6
, 9 8th Cong

. (1983) (emphasis added). This version of t h e bill reflected the understanding that any tampering had to cause a chang e in t h e product or its packag ing

. I ndeed, the Senate Report specific a lly adopted the following , narrow definition of “tamper”:

“Tamper” is a word of common usag e and of
g e n e r al understanding

. . . . I t is defined in W e bster’s New I nternational Dictionary (Merriam), 2nd Edition as: “3. T o meddle so

as to alter a thing ; e sp. to make corrupting o r perverting chang es, a s to tamper wit h a docume n t or a tex t; to interfere with improperly .” The term “ta mper,” when used in a criminal statute “has the limited meaning of improper interference ‘ as for the purpose o f

a lteration
, and to make objectionable o r unauthorized changes .’”

S. Rep. No. 98- 6 9 a t 7 (quoting State v. Harlston
, 565 S.W

. 2d 773, 778–89 (Mo. 1978)) (emphasis added). Se n ate B ill 216 p assed the Senate o n May 9
, 1 9 8 3 b y a voice v ote. See 129 Cong . Rec. 11,510 (1983).

The House then took t h e bill under consideration, a nd amended subsection (a) to include the lang uag e ultima telyU N I T E D S T A T E S V

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enacted: “[ w] hoever, with reckless disreg ard f or the risk that another person will be placed in dang er of death or bodi l y injury and under circumstances manifesting e x treme indifference to such risk, tampers with any consumer product that a ffects interstate o r foreig n commerce, or the labeling of,

or container for, any such product, or attempts to do so, shall

. . . .” 1 29 Cong

. Rec. 26,464 (1983). The House v e r s i o n thus lowered the mes rea requirem en t f rom intent to recklessness, and removed the Senate’s requirement that an individual “ tamper[ ] with and thereby taint[]
, o r t a m p e r[ ] with a n d thereby render[] m aterially false or misleading ” for

a convi c t i o n under § 1365(a). Althoug h the amendment’s
sponsor, Cong ressman W illiam J

. Hug hes, did not directly

ex p lain the reason f

or these chang e s, speaking to the House, he described the diffe r en c e b etween “ tampering ” a nd “tainting ”:

“Tainting ”.

. . is broader than the concept o f “tampering ”

. . . . “ T a mpering ” requires affirm a tive human conduct that chang es the
nature of the product, in a manner that causes

a risk of death or bod i l y injury

. “Tainting
, ”

. . . means “to mod i f

y w ith a trace o f something offensive o r deleterious, or to infect, c ontaminate, or corrupt[ ,] * * * such an ‘offensive’ o r ‘contaminating ’ r esult would be the addition of an unsig htly or nauseating substance, as well as a dang erous substance.”

129 Cong . Rec. 26,465 (1983).

After passing the Hous e , i d. at 26,466, the amended b ill

w e n t back to the Senate the nex t day
, w here it w a s championed by Senator Strom Thurmond. See id. at 26,610.U N I T E D S T A T E S V

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Senator Thurmond described th e d ifferences between the House and Senate versions, including t h at “[ t] he House amendment deletes the references to tainting and material mi s b r a n d ing in the basic tampering offense.” Id. at 26,612. B ut he noted that “[ s] ince the basic offense involves a risk o f 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 leg islative history thus sh o w s that both houses o f Cong r ess viewed “tamper[ ing ] ” as requiring some alteration of the product or its packag in g. T h e Senate a ccepted the House’s version of the bill that omitted the r equirement that
t h e tampering “thereby taint” or “thereby render materially false or misleading ” b ecause it thoug ht the lang uag e unnecessary , not inaccurate.

I n lig ht of Cong ress’ clear statements up o n enacting § 1 365(a), and consistent w ith the rule o f lenity
, see United States v. Santos
, 553 U.S. 507, 514 (2 0 0 8 )
, w e ag ree with L y le that the more restrictive definiti o n of “tamper” — o ne that requires a lteration or adulteration o f t he item tampered — should apply

.

C.

Our c onclusion is supp o r ted by the f ew court of appeals decisio n s construing § 1365(a). F or ex ample, the Eig hth Circuit wrote that “the term ‘ t a m p e rs’

. . . describes the phy sical act of product adulteration.” U nited States v. Moyer
, 182 F .3d 1018, 1020 (8th Cir. 1999). Moyer concerned a phy sician who stole morphine from her p atients’ I V units a nd replaced the drug with saline. She challeng ed h er conviction on the g round that the term “tampers” requires a showing of malicious intent. Id. T h e c o u rt declined to read such anU N I T E D S T A T E S V

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intent into the s t a t u t e , but in so doing
, sug g ested that the “ordinary meaning o f the term” “tamp e r” requires “adulteration.” I

d. at 1020–21.

United States v. Garnett
, 122 F .3d 1016 (11th Cir. 1997), likewise supports the n a r rower definition of “tamper[ ing ]

. ” Garnett held that “removing a drug a nd replacing it w ith a substitute constitutes tampering under § 1365(a).” I d. at 1018. I n support of its conclusion, the Eleventh Circuit noted that the F e deral F ood, Drug a nd Cosmetic Act, 21 U.S

. C. §§ 301, which § 1365(a) w as desig ned to streng then, “ defines substitution as a form of adulteration.” See Garnett
, 122 F .3d
at 1 018 (citing 2 1 U. S .C. § 351(d)). Notably
, the court did
not hold Gar n e t t liable simply because he removed some hy drocodone tablets from a b ottle. Rather, it h eld that Garnett “reduced the e fficacy of [ the] bottle

. . . b y introdu c ing other drugs into the bottles after scratching off
t h e i r identify

ing marks.” Id. ( emphasis added). I t was that act, which adulterated the consumer product, that constituted “tamper[ ing ]” within the meaning of § 1365(a).

III.

The indictme n t here sufficiently a lleg ed “tamper[ ing .] ” The indictment specifically allege d t hat L y le “open[ ed] ” a box containing F e tany l patches, “ remov[ e d] ” the patches, a nd “re-g lu[ ed] ” the box

. Combined
, t h e acts of opening a box and re-g luing it closed alter that box

. O pening a box eliminates t h e s e cure c losure affix e d in the factory
, which

assures that the contents of the box remain as r epresented on it until sold. Re-g luing a box alters the container further, by introducing a material

— n e w g lue — not installed by the manufacturer, and by creating a false impression of a secure packag e. Taken tog ether, these a c ts constitute “tamper[ ing ]U N I T E D S T A T E S V

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with

. . . [the] container for” a consumer product in violation of § 1365(a). 2

W e f i n d unpersuasive L y le’s citation to a 2002 House Report, w hich describes § 1365(a) as h aving “ l e [ ft]
unreg ulated conduct which neither adulterates the actual product n or alters the labeling

. ” H.R. Rep. No. 107-485, at 2 (2002). Rely ing on this statement, L y le contends that merely altering the “container for” a co nsumer product, as he is alleg ed to have done, does not violate § 1 365(a). “I n evaluating the weig ht to be attached to th[ is] statement[ ] ,” we consider “the oft-repeated warning that ‘the views of a subsequent Cong ress form a h az ardous b asis for inferring the intent of an earlier one.’” Consumer Prod. Safety Comm’n v

. GTE Sylvania, Inc
., 44 7 U

. S

. 102, 117 (1980) (citations omitted). A cong ressional statement made twenty y ears a fter the enactment of § 1365(a) is of little use in ascertaining the

s t a tute’s meaning

. This admonition is particularly pertinent where, as here, the post-enactment summary cannot be reconciled with the statute’s lang uag e , w hich specifically prohibits tampering with a container
, as w ell as with the product and its label. See § 1365(a). 3 B ecause the indictment

2 Wh eth er o pen in g th e b o x alo n e co n s titu tes “ t am p er[in g ]” w e n eed n o t d ecid e. A s a p ractical m atter, it is u n lik ely th at an o p en b o x w o u ld be so ld

o r b o u g h t , so th e o th er elem en ts o f § 1 3 6 5(a) are u n lik ely

to b e m et.

3 W e n o te th at L y le h as n o t ch allen g ed w h eth er th e m en s rea elem en t of § 1 3 6 5 (a) i s m et. W e th eref ore do n o t d ecid e w

h eth er “ rem o v i ng ” Fen tan y l p atch es f

ro m th eir co n tain er

— essen tially th ef t o f a co n su

m er p ro d u ct — an d tak in g step s to co n ceal th at th ef t b y tam p erin g w ith th e

co n tain er, d em o n strates “ reck less d isreg ard f o r th e risk th at an o t

h e r p erso n

w ill b e placed in d an g er o f d eath o r b o d ily in j u ry , an d u n der circu m s tan ces m an if

estin g ex t rem e in d if

f eren ce to su ch risk .” § 1 3 6 5 (a). A lth o u g h oth er ci r c u its h av e h eld th at an y “ tam p erin g th at red u ces th e ef f icacy o f a dru g d esig n ed to sav e lif e o r a l l e v iate a b o dily in j u ry ”U N I T E D S T A T E S V

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sufficiently alleg es that L y le tampered with the container, we affirm.

AF F IRMED.

su f f ices f or § 1 3 6 5 (a), Un ited S t

a tes v. Cu nn in g h a m , 1 03 F.3 d 5 5 3 , 5 5 6 (7 th Cir. 1 99 6 ), th is circu it h as n o t so h eld

.