United States v. Awni Shauaib Zayyad , 741 F.3d 452 ( 2014 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4252
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
AWNI SHAUAIB ZAYYAD,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., District Judge. (3:10−cr−00243−RJC−DCK−1)
Argued: December 11, 2013 Decided: January 24, 2014
Before AGEE, DIAZ, and FLOYD, Circuit Judges.
Affirmed by published opinion. Judge Agee wrote the opinion, in
which Judge Diaz and Judge Floyd concurred.
ARGUED: Joshua B. Carpenter, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Asheville, North Carolina, for Appellant. David
M. Lieberman, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellee. ON BRIEF: Henderson Hill, Director, FEDERAL
DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North
Carolina, for Appellant. Mythili Raman, Acting Assistant
Attorney General, Denis J. McInerney, Acting Deputy Assistant
Attorney General, Criminal Division, Appellate Section, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Anne M.
Tompkins, United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Charlotte, North Carolina, for Appellee.
2
AGEE, Circuit Judge:
Awni Shauaib Zayyad was convicted of five felony counts
relating to the sale of counterfeit prescription drugs. On
appeal, Zayyad raises two assignments of error. First, he
contends that the district court erred in denying his attempts
to introduce certain evidence about a “gray market” 1 for
prescription pills. Second, Zayyad argues that the Government
never established that he knew that the pills that he sold were
counterfeit.
We affirm the judgment of the district court, as neither of
Zayyad’s arguments have merit. The district court appropriately
limited Zayyad’s gray-market evidence, and the Government
offered sufficient evidence of his knowledge that he sold
counterfeit pills.
I.
A.
Essam Elasmar ran a counterfeit drug operation through his
convenience store in Charlotte, North Carolina, where he peddled
erectile-dysfunction drugs that looked like Viagra and Cialis.
1
“The term ‘gray market good’ refers to a good that is
‘imported outside the distribution channels that have been
contractually negotiated by the intellectual property owner.’
Such goods are also commonly called ‘parallel imports.’”
Kirtsaeng v. John Wiley & Sons, Inc., 133 S. Ct. 1351, 1379 n.9
(2013) (internal citation omitted).
3
Unfortunately for Elasmar, his illicit drug business ended when
he sold an undercover Department of Homeland Security (“DHS”)
agent three bulk counterfeit drug orders. After a search
following the drug buys found several hundred pills, Elasmar
agreed to cooperate with investigators.
Elasmar turned over his supplier’s telephone number, which
DHS traced to Zayyad. Then, at the authorities’ behest, Elasmar
twice ordered drugs from Zayyad. In the first buy, Elasmar
bought 500 Viagra pills for $4 a pill, a price well below
wholesale. About a month later, DHS had Elasmar place a second
order -- this time for both Viagra and Cialis -- for 700 pills
at $4 a pill.
When Zayyad delivered the second batch of pills to Elasmar,
police detained him and discovered more than 800 pills in the
glove box and sunglasses holder of Zayyad’s van. One set of
pills was concealed in a brown paper bag, while another set was
wrapped in a blue paper towel; all were in plastic bags. The
pills had the outward appearance of a genuine Viagra or Cialis
pill, but they lacked any prescriptions, prescription bottles,
product literature, lot numbers, or invoices. Zayyad admitted
to law enforcement that he had planned to resell hundreds of the
pills to someone in Charlotte, but refused to identify who
supplied them to him in the first place.
4
Police visited Zayyad’s house on the same day as the
traffic stop. When a woman answered the door, agents asked for
permission to search the home. The woman consented, but only
after she closed the door, stayed inside for ten minutes, and
came back wearing a damp shirt. Perhaps alerted by the woman’s
wet clothing, agents searched a bathroom near the front of the
house, finding a yellowish pill on the rim of a toilet equipped
with an “industrial strength flushing system.” (J.A. 759.)
As noted, some of the pills seized from Zayyad’s van and
home looked similar to genuine Viagra and Cialis pills, with the
same shapes, colors, and imprints as genuine pills. But other
pills did not have the right color tone, shape, or embossing.
Notwithstanding outward appearances, chemical analyses showed
that the pills contained incorrect compositions and active-
ingredient levels; many of the counterfeit Cialis pills also
incorrectly contained the active ingredient of Viagra. At
trial, specialists from the Food and Drug Administration,
Pfizer, and Eli Lilly testified that all the pills that they
sampled were counterfeit.
B.
A grand jury in the Western District of North Carolina
initially indicted Zayyad on seven counts: one count of
conspiracy to traffic in and dispense counterfeit drug products,
5
three counts of trafficking in counterfeit goods, and three
counts of selling and dispensing counterfeit prescription drugs.
At Zayyad’s trial in December 2011, the Government relied
principally on the nature of the transactions -- unpackaged
pills from an illegitimate source -- to show that Zayyad knew
that the pills that he sold were fake. For his part, Zayyad
tried to suggest through cross-examination that he believed the
pills came from the gray market. In particular, Zayyad cross-
examined Government witnesses from Pfizer, Eli Lilly, and DHS
who conceded that Pfizer and Eli Lilly manufactured and sold
Viagra and Cialis abroad at cheaper prices. They also admitted
that persons sometimes import foreign-manufactured pills into
the United States. In addition, evidence at the first trial
showed that Zayyad told Elasmar that the pills were real; no
evidence indicated that Zayyad had ever said the pills were
fake.
After the jury began deliberating, it asked the district
court whether “knowing [that the pills] were ‘counterfeit’ [was]
a requirement of the charge of violation in Counts Two through
Seven.” (J.A. 532.) The court reiterated that the offenses did
include a knowledge element. The jury then deliberated further
before announcing that it had deadlocked. A modified Allen 2
2
Allen v. United States, 164 U.S. 492 (1896).
6
charge failed to break the deadlock, and the district court
declared a mistrial.
C.
After the mistrial, the grand jury issued a superseding
indictment that narrowed the conspiracy count’s scope and
eliminated two counts. The new indictment contained a
conspiracy count, two counts of trafficking in counterfeit
goods, and two counts of selling and dispensing prescription
drugs.
Before the second trial, the Government moved to preclude
Zayyad from “attempting to raise during the Government’s case-
in-chief, through cross-examination or otherwise, any evidence
or argument regarding an alleged ‘diversion market’ or ‘grey
market’ for genuine, non-counterfeit, prescription
medications[.]” (J.A. 565.) The Government represented to the
district court that the gray-market evidence would only be
relevant if, for instance, “the defendant were to testify during
the defense case regarding his state of mind, that is, that he
believed the Viagra and Cialis pills he sold were genuine pills
from a specific ‘diversion market’ or ‘grey market’ channel[.]”
(J.A. 570.)
Zayyad responded that he should be permitted to use “gray
goods” evidence to establish an “affirmative defense,” namely
7
“that the purported Viagra and Cialis [pills] at issue are ‘gray
goods[.]’” (J.A. 651.) Put differently, Zayyad wanted to use
evidence establishing a gray market for prescription pills to
argue that some of the pills that police seized from him could
be genuine. He contended that “the vast majority of the more
than 2,000 purported counterfeit Viagra and Cialis tablets at
issue . . . ha[d] never been authenticated[.]” (J.A. 653.) And
he argued that the Government’s approach would impair his Sixth
Amendment rights to confrontation and Fifth Amendment due
process rights by forcing him to testify.
The district court granted the Government’s motion in
limine and determined the gray-market issue was not relevant
under Federal Rule of Evidence 401, as “there [was] no evidence
that shows that the defendant possessed any genuine pills.”
(J.A. 660.) In addition, the court excluded the evidence under
Federal Rule of Evidence 403, concluding “that concerns about
confusion of the issues, misleading the jury, and considerations
of waste of time” would overwhelm the evidence’s probative
value. (J.A. 660.)
D.
At the second trial, the Government presented much the same
basic evidence of Zayyad’s knowledge as in the first trial: he
sold the pills cheaply, kept them in plastic bags, and made them
8
available without a prescription. In response, defense counsel
argued that Zayyad’s “intent was to sell real Viagra and Cialis,
and there’s no evidence in this trial to the contrary.” (J.A.
907.) Further, Zayyad maintained that “[i]t would take a
forensic chemist, pharmacist, or some other person trained . . .
to look at any pill and be able to know that it’s counterfeit on
sight.” (J.A. 908.)
Upon closure of the evidence, Zayyad moved for a judgment
of acquittal, which the district court denied. The jury then
convicted Zayyad on all counts, and the district court sentenced
him to 24 months in prison. Zayyad timely appeals, and we have
jurisdiction under 28 U.S.C. § 1291.
II.
Zayyad first argues that the district court erred in
precluding him from introducing evidence about a “gray market”
or “diversion market” in Viagra and Cialis pills. That
evidence, Zayyad contends, was relevant because it could have
established that he reasonably believed that he dispensed real
prescription drugs. He separately argues that the district
court could not exclude the gray-market evidence under Rule of
Evidence 403 because it substantiated a central part of his
case.
9
We note at the outset that Zayyad frames his argument too
broadly. The district court did not preclude Zayyad from
introducing all evidence concerning a gray market. The
Government’s motion in limine only requested a limit on cross-
examination, and the district court’s order granted that motion
in limine. At oral argument, counsel for Zayyad suggested that
it would have been futile to try to introduce gray-market
evidence during the defendant’s case-in-chief given the court’s
ruling on the motion in limine. But Zayyad never tried to
introduce any evidence during his case-in-chief, never raised
the possibility of doing so, and never made any proffer
regarding gray-market evidence to the district court.
Therefore, we treat the district court’s order as what it was: a
limit on Zayyad’s right to cross-examine and nothing more.
A.
Before considering the merits of Zayyad’s claims, we first
examine the appropriate standard of review.
Normally, “[w]e review for abuse of discretion a trial
court’s limitations on a defendant’s cross-examination of a
prosecution witness.” United States v. Ramos-Cruz, 667 F.3d
487, 500 (4th Cir. 2012); see also United States v. Leeson, 453
F.3d 631, 636 (4th Cir. 2006) (“We review a district court’s
ruling on the admissibility of evidence for abuse of
10
discretion.”). “A district court abuses its discretion by
resting its decision on a clearly erroneous finding of a
material fact, or by misapprehending the law with respect to
underlying issues in litigation.” Scott v. Family Dollar
Stores, Inc., 733 F.3d 105, 112 (4th Cir. 2013) (internal
quotation marks omitted).
The initial question is whether this abuse-of-discretion
standard applies -- because Zayyad preserved his present
argument –- or whether the plain-error standard applies –-
because he did not. See United States v. Jones, 716 F.3d 851,
855 (4th Cir. 2013) (“We generally limit our review of claims
not properly preserved in the district court to plain error.”).
To preserve an argument on appeal, the defendant must
object on the same basis below as he contends is error on
appeal. Because he must “state[] the specific ground” upon
which he objects below, Fed. R. Evid. 103(a), “an objection on
one ground does not preserve objections on different grounds” on
appeal, United States v. Massenburg, 564 F.3d 337, 342 n.2 (4th
Cir. 2009). So, even if a defendant invokes the same rule in
both instances, he may still waive his claim if he fashioned his
argument differently. See, e.g., United States v. Pratt, 239
F.3d 640, 644 (4th Cir. 2001) (reviewing for plain error where
defendant objected below to use of co-conspirator statements
11
under Federal Rule of Evidence 801(d)(2)(E) but pressed
different aspect of the same rule on appeal).
We agree with the Government that Zayyad likely did not
preserve his present argument below. Before the district court,
Zayyad argued that gray-market evidence could raise doubts as to
whether the pills were in fact counterfeit. Indeed, even after
the district court ruled on the motion in limine regarding
cross-examination, defense counsel stressed again that the gray-
market evidence went to whether the pills were counterfeit.
Zayyad never raised any argument that the gray-market evidence
went to show his knowledge that the pills were gray-market
items. Yet this argument is the claim that he makes on appeal
and that it appears he did not preserve in the district court.
Nonetheless, we need not decide that issue. Even if we
assume that Zayyad preserved the argument that he now makes, it
fails under the abuse-of-discretion standard. See, e.g., United
States v. Palacios, 677 F.3d 234, 245 n.6 (4th Cir. 2012)
(assuming that defendant preserved evidentiary objections where
arguments failed even under preserved error standard).
B.
District courts may “place limitations upon the cross-
examination of . . . witnesses.” United States v. Janati, 374
F.3d 263, 274 (4th Cir. 2004). They may impose these limits
12
“based on concerns including harassment, prejudice, confusion of
the issues, repetition, or marginal relevance.” United States
v. Turner, 198 F.3d 425, 429 (4th Cir. 1999). They enjoy “wide
latitude” in doing so. Id.
The district court did not allow Zayyad to cross-examine
Government witnesses on the gray market in part because the
court determined that such testimony would be irrelevant. “[A]
defendant can only cross-examine a prosecution witness if the
information sought to be elicited is relevant.” United States
v. Maxwell, 579 F.3d 1282, 1296 (11th Cir. 2009) (internal
quotation marks and alterations omitted); see also Fed. R. Evid.
402 (“Irrelevant evidence is not admissible.”). We deem
evidence relevant only if “it has any tendency to make a fact
more or less probable than it would be without the evidence” and
“the fact is of consequence in determining the action.” Fed. R.
Evid. 401. Although this “threshold for relevancy is relatively
low,” United States v. Powers, 59 F.3d 1460, 1465 (4th Cir.
1995), we rarely reverse relevancy decisions because they “are
fundamentally a matter of trial management,” United States v.
Benkahla, 530 F.3d 300, 309 (4th Cir. 2008).
Zayyad contends that his gray-market cross-examination
would have been relevant to his principal defense: that he did
not know that he was peddling counterfeit pills. And indeed,
both charged substantive offenses include a knowledge element.
13
“To obtain a conviction under [18 U.S.C.] § 2320(a) [for using a
counterfeit mark], the [G]overnment was required to prove that
[Zayyad] . . . knew the mark [on the pills] was counterfeit.”
United States v. Chong Lam, 677 F.3d 190, 197-98 (4th Cir.
2012). Likewise, because the felony offense of dispensing
counterfeit drugs requires that the defendant act “with intent
to defraud or mislead,” 21 U.S.C. § 333(a)(2), the defendant
must at least have knowledge that his drugs are mislabeled.
See, e.g., United States v. Vitek Supply Corp., 144 F.3d 476,
486 (7th Cir. 1998) (“To act with this intent [to defraud or
mislead], [defendants] must have had knowledge of the essential
nature of the alleged fraud.” (internal quotation marks
omitted)).
But Zayyad’s proposed cross-examination was irrelevant
because it did not connect to the knowledge element of the
charged offenses. “Unless there is a connection between the
external facts and the defendant’s state of mind, the evidence
of the external facts is not relevant.” United States v.
Curtis, 782 F.2d 593, 599 (6th Cir. 1986). Zayyad never
suggested -- through his own testimony, testimony from other
witnesses, documentary evidence, proffer, or otherwise -- that
he believed he was selling gray-market drugs. Nor did he
establish his own awareness of the gray market.
14
We have previously recognized that a defendant cannot
distract the jury by introducing evidence concerning a potential
defense that he never raised. Relevance, after all, must “be
determined in relation to the charges and claims being tried,
rather than in the context of defenses which might have been
raised but were not.” United States v. Hedgepeth, 418 F.3d
411, 419 (4th Cir. 2005). If the defendant wants to present a
theory or belief that might have justified his actions, then he
must present evidence that he in fact relied on that theory or
belief. See, e.g., United States v. Kokenis, 662 F.3d 919, 927
(7th Cir. 2011) (“[The defendant] offered no evidence that he
actually relied on the pooling capital theory, so testimony
about the theory would be irrelevant, confusing, and perhaps
even misleading.”); cf. Havee v. Belk, 775 F.2d 1209, 1225 (4th
Cir. 1985) (holding that account summary could not be used to
prove the knowledge of debtor and transferees, where record
contained no evidence that debtor or transferees saw the
summary). Otherwise, a defendant could introduce evidence that
would invite the jury to speculate a non-existent defense into
existence.
As the Government notes, we often see these principles
applied in tax evasion cases. In one such case, we affirmed a
district court’s decision to limit cross-examination that
purportedly went to the defendants’ knowledge. See United
15
States v. Jinwright, 683 F.3d 471, 483 (4th Cir. 2012). The
defendants there wanted to cross-examine lay witnesses
concerning the witnesses’ beliefs that certain payments were
non-taxable “gifts.” Id. But because the defendants did not
establish that they relied on such a belief, we deemed the
evidence irrelevant. Id.; accord United States v. Powell, 955
F.2d 1206, 1214 (9th Cir. 1992); United States v. Harris, 942
F.2d 1125, 1132 n.6 (7th Cir. 1991); see also United States v.
Dynalectric Co., 859 F.2d 1559, 1574 n.19 (11th Cir. 1988)
(upholding district court’s exclusion of evidence of economic
conditions as irrelevant in bid-related case, where defendants
were not shown to have relied on those conditions in making
bid). Just as in that case (and the many cases like it), the
record before us contains no evidence of any actual reliance on
Zayyad’s part that would justify the use of the explanatory
gray-market evidence. The district court did not err in barring
cross-examination regarding that evidence, where there was no
connection to the knowledge element and consequently no
relevance.
C.
Zayyad objects that forcing him to summon other evidence in
support of his gray-market contention raises constitutional
concerns. He insists that we should not force him to waive his
16
constitutional right not to testify before allowing him to
present otherwise relevant evidence.
At bottom, Zayyad complains of the burdens of presenting
his chosen defense. A defendant may struggle with how to attack
an element that involves his own state of mind, particularly
when he lacks contemporaneous evidence of that state of mind.
But a defendant’s rights “would not be violated simply because
he had to choose between not testifying and laying [the
required] foundation.” Kokenis, 662 F.3d at 927. “Evidence by
its nature builds pressure to rebut it -- that’s what the
adversary system is about. That the defendant faces a dilemma
demanding a choice between complete silence and presenting a
defense has never been thought an invasion of the privilege
against compelled self-incrimination.” United States v. Kelly,
592 F.3d 586, 594 (4th Cir. 2010) (internal quotation marks and
alterations omitted). Zayyad cannot use the privilege against
self-incrimination as a means to free himself from the basic
rules of relevancy.
D.
Even if we could deem this evidence relevant, we could not
say that the district court committed reversible error by
directing the evidence to Zayyad’s case-in-chief. The court
gave Zayyad the opportunity to present gray-market evidence
17
outside of cross-examination. But, for reasons known only to
him, Zayyad chose to forego that course. Zayyad’s “failure to
do so rests squarely on [his] shoulders.” Jinwright, 683 F.3d
at 483; see also United States v. Stadtmauer, 620 F.3d 238, 272-
73 (3d Cir. 2010) (explaining that district courts may direct
the defendant to present relevant evidence outside cross-
examination).
Moreover, the district court permitted Zayyad to cross-
examine Government witnesses on other topics. For instance,
Zayyad pointed out weaknesses in the witnesses’ analyses, and he
highlighted the difficulties in distinguishing between real and
genuine pills. Because Zayyad could attack the Government’s
witnesses on other grounds and could raise his preferred
argument in his own case, “the district court acted well within
its discretion” to limit cross-examination on a particular
theory. United States v. Smith, 44 F.3d 1259, 1269 (4th Cir.
1995) (affirming district court’s decision to limit cross-
examination on particular subject where defendant could raise
evidence concerning the same subject in her case-in-chief and
could cross-examine witness on other matters).
E.
The district court alternatively ruled that the gray-market
cross-examination evidence should be excluded under Federal Rule
18
of Evidence 403. Under that rule, courts may exclude relevant
evidence “if its probative value is substantially outweighed by
a danger of,” among other things, “confusing the issues,
misleading the jury, . . . [or] wasting time.” Fed. R. Evid.
403. “It is not an easy thing to overturn a Rule 403 ruling on
appeal.” United States v. Lentz, 524 F.3d 501, 525 (4th Cir.
2008) (internal quotation marks omitted). Certainly, the
“balance under Rule 403 should be struck in favor of
admissibility, and evidence should be excluded only sparingly.”
Id. (internal quotation marks omitted). But a district court’s
judgment concerning where that balance lies “will not be
overturned except under the most extraordinary circumstances.”
Id. (internal quotation marks omitted).
In Zayyad’s case, the district court correctly determined
that the gray-market evidence would confuse, mislead, and waste
time. The evidence would have distracted the jury from its
principal purpose: assessing Zayyad’s subjective belief and
actual knowledge. Instead, it threatened to lead the jury into
pure speculation based on no foundational evidence as to
Zayyad’s state of mind. Jurors might have been led to question
whether a reasonable person could have known or believed that
his pills came from the gray market. Yet, at least lacking any
evidence from Zayyad that he believed that he was selling gray-
market pills, the jury’s inquiry would have been complete
19
guesswork. The trial judge appropriately avoided that
possibility under its Rule 403 ruling.
For all the reasons noted above, the district court did not
err in barring Zayyad’s proposed cross-examination.
III.
In his second argument, Zayyad contends that the Government
provided insufficient evidence to prove the knowledge element of
the charged offenses. Zayyad notes that he never confessed to
knowing that the pills were fake, and no one recorded him
admitting that the pills were counterfeit. And in what Zayyad
calls the most “on-point” direct evidence (Appellant’s Br. 29) -
- his statements upon arrest and his statements to Elasmar –-
Zayyad indicated that he believed the pills were real. In
contrast, Zayyad says, all of the Government’s circumstantial
evidence was equally consistent with a seller who was selling
pills purchased from the gray market.
A.
“We review de novo the district court’s decision to deny a
defendant’s Rule 29 motion for judgment of acquittal.” United
States v. Royal, 731 F.3d 333, 337 (4th Cir. 2013). “[I]nsofar
as [Zayyad] challenges the jury’s finding that the [G]overnment
adequately proved the relevant offense element, we review that
20
argument for sufficiency of the evidence.” United States v.
Day, 700 F.3d 713, 725 (4th Cir. 2012).
“On an appeal challenging the sufficiency of evidence, we
assess the evidence in the light most favorable to the
government, and the jury’s verdict must stand unless we
determine that no rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.”
Royal, 731 F.3d at 337. Stated plainly, a sufficiency challenge
presents a “heavy burden,” which a defendant will only overcome
in “cases where the prosecution’s failure is clear.” United
States v. McLean, 715 F.3d 129, 137 (4th Cir. 2013) (internal
quotation marks omitted).
B.
Viewed in the light most favorable to the Government, the
evidence sufficiently established Zayyad’s knowledge. The
Government’s circumstantial fact evidence allowed the jury to
reasonably infer that the pills were counterfeit. The pills did
not come with traditional packaging or materials, and came at a
very low price, in enormous volumes, from sources that one would
not normally expect to have legitimate pills. These facts would
indicate that the pills were illegitimate. Zayyad also hid the
pills in his van and evidently had help in destroying additional
pill evidence at his home. The later attempt to conceal the
21
pills further indicates awareness that the pills were unlawful.
See United States v. Sasso, 695 F.3d 25, 29 (1st Cir. 2012)
(“[A]n attempt to cover up the commission of a crime implies
consciousness of guilt. Here, the jurors could reasonably infer
consciousness of guilt (and, thus, intent) from the defendant’s
endeavor to conceal his possession of the [instrument of the
crime.]” (internal citations omitted)). All these facts allowed
the jury to infer knowledge of false pills on Zayyad’s part.
See, e.g., United States v. Hassan, 280 F. App’x 271, 274 (4th
Cir. 2008) (unpublished) (holding that evidence supported
counterfeit drug convictions where, among other things, (1)
defendant admitted he obtained pills from an illegitimate
source; (2) pills came in illegitimate packaging; and (3) pills
came in abundant supply).
At the very least, a jury could have reasonably concluded
that Zayyad willfully blinded himself to the reality that the
pills were counterfeit. A jury may rely upon willful blindness
“when the defendant asserts a lack of guilty knowledge but the
evidence supports an inference of deliberate ignorance.” United
States v. Ruhe, 191 F.3d 376, 384 (4th Cir. 1999) (internal
quotation marks omitted); cf. United States v. Poole, 640 F.3d
114, 122 (4th Cir. 2011) (explaining in tax context that
“willful blindness” can satisfy scienter element “when the
evidence supports an inference that [the] defendant was
22
subjectively aware of a high probability of the existence of
. . . liability”). “[P]roof of actual knowledge is not
necessary if the defendant was willfully blind.” United States
v. Wells, 163 F.3d 889, 898 (4th Cir. 1998). And evidence like
that found here –- no documents for the drugs, strange
packaging, discreet transactions, and prices well below
wholesale –- all suggest that Zayyad was deliberately
indifferent to the fact that his drugs were counterfeit. See,
e.g., United States v. Ali, 735 F.3d 176, 188 (4th Cir. 2013)
(listing lack of documentation, “unmarked packages,” and
“discreet handoffs” among facts supporting inference of willful
blindness); United States v. Dais, No. 91-5820, 1992 WL 14595,
at *2 (4th Cir. Jan. 31, 1992) (unpublished) (noting that low
prices of goods should have suggested to defendant who purchased
them that goods were illegal).
C.
Zayyad insists that the Government’s evidence supports an
innocent inference that he believed that he was trafficking in
legitimate, gray-market goods. That’s beside the point.
For one thing, Zayyad did not introduce evidence concerning
gray-market goods at his second trial, and we can consider only
23
evidence from the second trial. 3 Zayyad asks us to judicially
notice that a gray market exists, but we do not take judicial
notice of a purported fact merely because a party tried to
establish it at a prior trial. “Only indisputable facts,” after
all, “are susceptible to judicial notice.” Nolte v. Capital One
Fin. Corp., 390 F.3d 311, 317 n.* (4th Cir. 2004). Under
Federal Rule of Evidence 201(b), facts are considered
indisputable when they are “generally known within the trial
court’s territorial jurisdiction” or they “can be accurately and
readily determined from sources whose accuracy cannot be
reasonably questioned.” But “[f]acts adjudicated in a prior
case,” or in this instance, a prior trial in the same case, “do
not meet either test of indisputability contained in Rule
201(b)[.]” Int’l Star Class Yacht Racing Ass’n v. Tommy
Hilfiger U.S.A., Inc., 146 F.3d 66, 70 (2d Cir. 1998).
For another thing, it does not matter that the Government’s
evidence also supported innocent inferences. “[A]s a general
proposition, circumstantial evidence may be sufficient to
support a guilty verdict even though it does not exclude every
reasonable hypothesis consistent with innocence.” United States
v. Osborne, 514 F.3d 377, 387 (4th Cir. 2008) (internal
3
Our review of the record reveals no stipulation or similar
agreement to incorporate any facts from the first trial into the
second trial.
24
quotation marks and alterations omitted). “The jury was
entitled to reject the theory consistent with innocence and
accept the one consistent with guilt, so long as there was
substantial evidence for its choice.” United States v. Garcia,
868 F.2d 114, 116 (4th Cir. 1989).
Zayyad’s “direct” evidence -- namely his own statements
that the drugs were real -- does not matter either. Here again,
Zayyad mentioned these statements at the first trial, but not
the second. Even had the statements appeared at the second
trial, we would not decide differently. “[C]ircumstantial
evidence is not inherently less valuable or less probative than
direct evidence[.]” United States v. Martin, 523 F.3d 281, 289
(4th Cir. 2008) (internal quotation marks omitted). The jury
had every right to disregard “direct” evidence supporting
Zayyad’s theory in favor of the Government’s equally weighty
circumstantial facts supporting his guilt. In fact, the jury
had a rational reason to do so: Zayyad’s statements were
untrustworthy because he had a motive to lie to both his buyer
(to fetch a better price for his product) and the police (to
escape weightier charges). See Hassan, 280 F. App’x at 274
(finding that jury could infer defendant’s knowledge from
defendant’s insistence that the pills were effective to
potential purchasers, as “there would be no need for him to
vouch for the pill’s effectiveness” had the pills been genuine).
25
Accordingly, Zayyad’s challenge to the sufficiency of the
evidence fails. The district court did not err in denying his
Rule 29 motion.
IV.
For the reasons set forth above, the district court’s
judgment is
AFFIRMED.
26