FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

KENYON NEAL LYLE, JR.,

Defendant-Appellant.

No. 12-30389

D.C. No.

2:10-cr-06070-EFS-1

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 DefendantAppellant.

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,1the

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 byBlack’s Law Dictionarybest 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 Dictionary1592 (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.