UNITED STATES v. HALLIDAY (2020)

A jury convicted Basil Derrick Halliday of obtaining a controlled substance using a registration number issued to another person, in violation of 21 U.S.C. § 843(a)(2) (2018). The district court sentenced Halliday to five months’ imprisonment. On appeal, Halliday contends that the district court erred in denying his motion for a judgment of acquittal under Fed. R. Crim. P. 29 because the Government presented insufficient evidence that he used a physician’s Drug Enforcement Agency (DEA) registration number to acquire Suboxone. Finding no error, we affirm.

We review de novo challenges to the sufficiency of evidence and a district court’s denial of a motion for a judgment of acquittal under Rule 29. United States v. Alerre, 430 F.3d 681, 693 (4th Cir. 2005). A defendant challenging the sufficiency of the evidence faces a heavy burden. United States v. Wolf, 860 F.3d 175, 194 (4th Cir. 2017). On appeal, a jury’s verdict must be upheld “if, viewing the evidence in the light most favorable to the government, substantial evidence supports it.” Id. (internal quotation marks omitted). “[S]ubstantial evidence is evidence that a reasonable finder of fact could accept as adequate and sufficient to support a conclusion of a defendant’s guilt beyond a reasonable doubt.” Id. (internal quotation marks omitted). In undertaking our review, we cannot “assess witness credibility, and we assume that the jury resolved any conflicting evidence in the prosecution’s favor.” United States v. Savage, 885 F.3d 212, 219 (4th Cir. 2018) (internal quotation marks omitted). To reverse, “the prosecution’s failure [must be] clear.” United States v. Palomino-Coronado, 805 F.3d 127, 130 (4th Cir. 2015) (internal quotation marks omitted).

To obtain a conviction under 21 U.S.C. § 843(a)(2), the Government must prove that Halliday (1) knowingly or intentionally; (2) used another person’s registration number; (3) for the purpose of obtaining a controlled substance. 21 U.S.C. § 843(a)(2). Although Halliday acknowledges that he purchased Suboxone, a Schedule III controlled substance, on five different occasions, he contends that the Government failed to submit sufficient evidence demonstrating he used another person’s registration number to make such purchases.

At trial, however, Halliday admitted to buying Suboxone from a pharmacy on five occasions and providing the pharmacist with a physician’s name. The Government presented the purchase invoices containing a physician’s name and her DEA registration number. This physician worked at the clinic owned and managed by Halliday. Moreover, trial testimony showed that (1) Halliday made five in-person purchases of Suboxone and the pharmacist testified that for each purchase Halliday provided him with the ordering physician’s name and DEA registration number; (2) the pharmacy did not have access to a DEA registration database or a subscription to acquire or verify a prescriber’s DEA number; (3) the physician initially provided Halliday with her DEA registration number on her credentialing package upon hiring but testified that she never spoke to the pharmacist or gave Halliday authorization to purchase Suboxone using her registration number. Although Halliday denied providing the pharmacist with the physician’s DEA registration number, it is the province of the jury to weigh credibility not ours. See Savage, 885 F.3d at 219. Accordingly, the Government presented sufficient evidence to permit a jury to conclude that Halliday used the physician’s DEA registration number without her permission.

We therefore affirm Halliday’s conviction. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process.

AFFIRMED

PER CURIAM:

Affirmed by unpublished per curiam opinion. Unpublished opinions are not binding precedent in this circuit.