United States v. Fuchs ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
REVISED NOVEMBER 15, 2006
October 17, 2006
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 05-10426
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
CLAYTON H FUCHS; EUGENE GONZALES; WALDRICK LEMONS
Defendants - Appellants
Appeals from the United States District Court
for the Northern District of Texas
Before KING, GARWOOD, and JOLLY, Circuit Judges.
KING, Circuit Judge:
Defendants-appellants Clayton H. Fuchs, Eugene Gonzales, and
Waldrick Lemons were charged in a six-count indictment for their
involvement in two Internet-based pharmacies that dispensed
controlled substances to thousands of customers without valid
prescriptions. The jury convicted them on all counts, and they
timely appealed. For the reasons that follow, we AFFIRM.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background
This case centers around two Internet-based pharmacies that
defendant-appellant Clayton H. Fuchs established and operated.
In 1999, Fuchs, then a licensed pharmacist, sought to capitalize
on the Internet boom by setting up an online pharmacy. Fuchs’s
idea was to find a physician, or several physicians, who would
issue prescriptions or refills for patients who requested
medication online. Fuchs would then dispense the medication,
based on the physician’s prescriptions, to patients throughout
the United States.
After several meetings with Dr. Stephen Thompson, then a
licensed physician who had had ideas similar to Fuchs’s, Fuchs
opened Friendly Pharmacy (“Friendly”) inside the Garland, Texas
office building where Dr. Thompson maintained his medical clinic.
Dustin Humphries, a licensed pharmacist who was a close friend of
Fuchs, also partnered with Fuchs to open Friendly. Humphries
initially designed and maintained Friendly’s web site.
Friendly began receiving orders through its web site in
April 1999, but business was slower than Fuchs desired,
presumably because Friendly initially offered non-controlled
medications only. That same month, Fuchs approached Dr. Thompson
and told him that the pharmacy was receiving requests for
controlled substances. Dr. Thompson initially resisted the idea
of dispensing controlled substances via the Internet because he
was concerned it might be illegal. But after a few more months
of slow sales and after Fuchs told him about another web-based
pharmacy that was continuing to dispense controlled substances
even after a government investigation, Dr. Thompson relented.
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Once Friendly began offering controlled substances, sales
skyrocketed.
Fuchs hired several employees to work at Friendly. Among
them was defendant-appellant Eugene Gonzales, Fuchs’s step-
father, who supervised several of the pharmacy’s employees.
Fuchs’s then wife, Angela Fuchs, also worked at the pharmacy.
Dr. Thompson testified at trial that Angela Fuchs and Gonzales
were part of the pharmacy’s “inner circle.” Friendly also
employed defendant-appellant Waldrick Lemons as a pharmacist.
Friendly’s operation was relatively simple. Customers
located throughout the United States went to the pharmacy’s web
site, completed an online profile, and requested medication.
After a customer completed an order, Friendly generated a
completed prescription form and forwarded it to Dr. Thompson for
his approval. Dr. Thompson reviewed the patient’s profile and
approved and signed the prescription without communicating with
the patient either face to face or over the telephone. Friendly
paid Dr. Thompson $40 for each prescription he approved. Either
Fuchs or Lemons, assisted by Friendly’s pharmacist technicians,
then filled the prescription, and a Friendly employee shipped it
to the customer.
Fuchs instituted few checks to ensure controlled substances
were not being abused. A Friendly employee called each customer
to verify the order before forwarding the completed prescription
form to Dr. Thompson. And if a Friendly employee suspected that
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a customer was abusing controlled substances or using a fake name
to obtain them, she would ask the customer to fax in some form of
identification or she would add the name to a list of suspect
customers for whom the pharmacy refused to fill further
prescriptions. Notwithstanding these minimal checks in the
process, the pharmacy filled nearly all of the orders that were
placed.
In May 2000, Fuchs decided to expand business by increasing
the number of hydrocodone tablets per prescription from 40 to
100. Dr. Thompson initially resisted the increase, but he
eventually acquiesced, and Fuchs increased Dr. Thompson’s payment
to $100 per prescription. By August 2000, Friendly processed 150
to 200 requests for medication daily; hydrocodone, a Schedule III
controlled substance, was the primary drug being dispensed.
Cy Weich, a Field Compliance Officer with the Texas State
Board of Pharmacy (“TSBP”), performed a routine inspection of
Friendly in August 2000. The information Weich gleaned during
the inspection alarmed him. He was troubled by the high volume
of prescriptions, especially controlled substances, that Friendly
was dispensing. He was also concerned that nearly all of
Friendly’s prescriptions were signed by the same doctor, who was
located in Texas, despite the fact that the patients were
dispersed throughout the United States. After consulting with
TSBP’s general counsel, Weich informed Fuchs that the
prescriptions generated through Friendly’s web site were invalid.
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According to the testimony of a former Friendly employee,
Fuchs informed the employees a few days after Weich’s inspection
that Friendly was going to shut down “because it was illegal
or . . . we were doing something wrong.” Supp. R. 675. Friendly
apparently stopped accepting new orders shortly thereafter, but
it remained open long enough to continue processing the 1,000 or
more orders it had already received.
In October 2000, Fuchs opened Main Street Pharmacy (“Main
Street”) in Norman, Oklahoma. Main Street was also an Internet-
based pharmacy; its operation was substantially the same as
Friendly’s. Main Street was nominally owned by Gonzales,
although he had very little interaction with the pharmacy and its
employees recognized Fuchs as the true owner. Trial testimony
conflicted as to why Main Street was put into Gonzales’s name.
According to Craig Jones, an employee at both Friendly and Main
Street, Fuchs told him it was because he did not want a paper
trail linking Friendly with Main Street. According to other
testimony, the reason was that Fuchs was going through a divorce
and sought to protect his assets. Regardless of Fuchs’s
motivation, he purchased Gonzales a new truck in exchange for
putting Main Street in Gonzales’s name.
Fuchs offered his Friendly employees positions at Main
Street if they would move to Oklahoma. Lemons declined Fuchs’s
offer. By this point, Dr. Thompson had also severed his
relationship with Fuchs. Fuchs established relationships with
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three physicians who approved Main Street’s orders. The primary
physician was Dr. Ricky Joe Nelson.1 Dr. Nelson approved most of
Main Street’s prescriptions, but he refused to approve
prescriptions for customers in Oklahoma and one or two other
states because he had medical licenses in those states. Main
Street paid Dr. Nelson between $40 and $70 for each prescription
he approved. Drs. Kenneth Speak and Robert Ogle also approved
prescriptions at Main Street.
Fuchs hired Myron Thompson as a pharmacist at Main Street.
After a couple of weeks, Myron Thompson became highly suspicious
of the legality of Main Street’s operation and shared his
concerns with Fuchs. Fuchs told him that he would try to find a
replacement pharmacist. Myron Thompson continued working at Main
Street for approximately two more weeks until Fuchs hired Jerry
Shadid as his replacement.
By the time Main Street was shut down, the pharmacy was
processing between 300 and 500 prescriptions per day,
approximately 70% of which were for hydrocodone. And nearly
every hydrocodone order shipped out was a 30-day supply of 100
tablets with two refills. Both Friendly and Main Street charged
far more than the average price for each prescription. Neither
1
Based on his involvement with Main Street, Dr. Nelson was
convicted of conspiracy to distribute controlled prescription
drugs outside the usual course of professional practice and
conspiracy to commit money laundering. See United States v.
Nelson, 383 F.3d 1227 (10th Cir. 2004).
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pharmacy accepted payment through insurance; the pharmacies’
standard payment terms were C.O.D.
B. Procedural History
On November 20, 2002, the grand jury indicted the
defendants-appellants for their involvement in the web-based
pharmacies. Superseding indictments were handed down on July 23,
2003, and September 24, 2003. The second superseding indictment
(“indictment”), on which the defendants-appellants were tried,
contained six counts. Count one charged Fuchs and Lemons with
conspiracy to distribute a controlled substance in violation of
21 U.S.C. § 846. Count two charged Fuchs with engaging in a
continuing criminal enterprise (“CCE”) in violation of 21 U.S.C.
§ 848. Counts three, four, and five charged Fuchs with
dispensing of a controlled substance not in the usual course of
professional practice in violation of 21 U.S.C. § 841(a)(1). And
count six charged Fuchs and Gonzales with conspiracy to commit
money laundering in violation of 18 U.S.C. § 1956(h).2
The defendants-appellants were tried before a jury. At the
close of the government’s case-in-chief, the defendants-
appellants moved for a judgment of acquittal, which the court
denied. The defendants-appellants renewed their motions at the
close of all the evidence. The jury convicted them on all
2
Drs. Speak and Ogle were also charged in count one, and
Dr. Ogle was also charged in count six. Neither Dr. Speak nor
Dr. Ogle is a party in this appeal.
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counts. After trial, the defendants-appellants filed
supplemental motions for judgment of acquittal and motions for a
new trial. The district court denied the defendants-appellants’
motions in a January 25, 2005, order. On the government’s
motion, however, the court dismissed Fuchs’s indictment and
conviction on count one.3 The district court sentenced the
defendants-appellants, and they timely appealed their
convictions.
II. UNLAWFUL DISPENSING OF A CONTROLLED SUBSTANCE
Fuchs first challenges his convictions on counts three,
four, and five, which charged him with dispensing a controlled
substance not in the usual course of professional practice in
violation of 21 U.S.C. § 841(a)(1).4
A. Background
Section 841(a)(1) makes it “unlawful for any person
knowingly or intentionally . . . to manufacture, distribute, or
dispense . . . a controlled substance.” Although medical
professionals who are registered with the Attorney General are
3
This was done presumably because conspiracy to distribute
a controlled substance is a lesser included offense of CCE. See
Rutledge v. United States, 517 U.S. 292, 307 (1996).
4
Fuchs also indirectly challenges his other
convictions——for CCE and conspiracy to commit money
laundering——on the basis that they are dependent on his
§ 841(a)(1) conviction. That is, he suggests that if his
conviction for dispensing of a controlled substance falls, then
so must his remaining convictions.
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generally permitted to dispense controlled substances, they “can
be prosecuted under § 841 when their activities fall outside the
usual course of professional practice.” United States v. Moore,
423 U.S. 122, 124 (1975).
The sole basis for Fuchs’s challenge is that the government
was required to prove not only that he dispensed controlled
substances outside the usual course of professional practice but
also that he did so without a legitimate medical purpose.5 He
challenges the legal sufficiency of the indictment as well as the
jury instructions on this ground. It is true that neither the
indictment nor the jury instructions referred to “legitimate
medical purpose.” The indictment alleged that Fuchs violated
§ 841(a)(1) by knowingly dispensing controlled substances “not in
the usual course of professional practice.”6 Likewise, the
district court instructed the jury that to convict Fuchs it
needed to find that he dispensed a controlled substance “knowing
that the controlled substance was prescribed by the prescribing
5
On the same basis, Gonzales challenges his conviction on
count six of conspiracy to commit money laundering. In essence,
Gonzales asserts that he did not agree to engage in financial
transactions involving the proceeds of unlawful activity because
the activity——dispensing controlled substances——was not unlawful,
as it was not alleged to have been done without a legitimate
medical purpose. We reject Gonzales’s argument for the same
reason that we reject Fuchs’s.
6
Count three charges that Fuchs unlawfully dispensed
lorazepam, a Schedule IV controlled substance. Counts four and
five each charge that Fuchs unlawfully dispensed hydrocodone, a
Schedule III controlled substance.
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physician not in the usual course of medical practice.” R. 366.
B. Standard of Review
We generally review a challenge to the sufficiency of the
indictment de novo. United States v. Partida, 385 F.3d 546, 554
(5th Cir. 2004) (citing United States v. Fitzgerald, 89 F.3d 218,
221 (5th Cir. 1996)). But where the defendant fails to present
the challenge before the district court, we review for plain
error. Id. (citing United States v. Hickman, 331 F.3d 439, 443
(5th Cir. 2003)). In this case, Fuchs did move to dismiss counts
three, four, and five prior to trial, but he advanced different
grounds to support his motion than those he presents to this
court. After trial, Fuchs did not challenge the sufficiency of
the indictment in a Rule 34 motion for arrest of judgment. We
therefore review his challenge for plain error. “Error is plain
only when it is clear or obvious and affects the defendant’s
substantial rights . . . .” Id. (citing Hickman, 331 F.3d at
443).
We review jury instructions for abuse of discretion if the
alleged error is preserved below. United States v. Freeman, 434
F.3d 369, 377 (5th Cir. 2005) (citing United States v. Daniels,
281 F.3d 168, 183 (5th Cir. 2002)). But jury instructions that
were not objected to are reviewed for plain error. United States
v. Rubio, 321 F.3d 517, 523 (5th Cir. 2003). Although Fuchs did
object to the portion of the jury instructions referring to
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“usual course of professional practice,” he did not object on the
ground that the government must also prove he dispensed without a
legitimate medical purpose. We therefore review Fuchs’s
challenge to the jury instruction for plain error as well. Cf.
United States v. Arnold, 416 F.3d 349, 355 n.3 (5th Cir. 2005)
(reviewing challenge to jury instruction for plain error because
objection was not specific enough to bring the alleged error to
the district court’s attention (citing United States v. Krout, 66
F.3d 1420, 1434 (5th Cir. 1995); United States v. Heath, 970 F.2d
1397, 1407 (5th Cir. 1992))).
C. Analysis
Fuchs alleges that there is plain error in both the
indictment and the jury instruction because they permitted him to
be charged and convicted without proof that he dispensed
controlled substances without a legitimate medical reason. Fuchs
relies on United States v. Outler, wherein we held that “lack of
a legitimate medical reason is an essential element of [a
§ 841(a)(1)] offense, and therefore must be alleged in the
indictment.” United States v. Outler, 659 F.2d 1306, 1309
(Former 5th Cir. Oct. 1981). But Fuchs misapprehends Outler’s
holding. Prior to Outler, this court in United States v. Rosen
addressed the elements of the offense of dispensing a controlled
substance when the defendant is a registered physician. United
States v. Rosen, 582 F.2d 1032, 1033 (5th Cir. 1978). Rosen
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listed as a single element of the offense that the dispensing be
done “other than for a legitimate medical purpose and in the
usual course of his professional practice.” Id. In Outler, the
narrow issue was whether this single element must be charged in
the indictment. Outler, 659 F.2d at 1308-09. Outler did not
address whether, to satisfy the element, the government must
prove that the dispensing was done both without a legitimate
medical purpose and outside the usual course of professional
practice. Indeed, Outler appears to use the phrases “without a
legitimate medical reason” and “beyond the course of professional
practice” interchangeably.7 Outler, therefore, does not support
Fuchs’s proposition.
We discern no plain error in either the indictment or the
jury instruction. “A ‘plain’ error is one [that] is clear under
current law.” United States v. Palmer, 456 F.3d 484, 491 (5th
Cir. 2006) (citing Russell v. Plano Bank & Trust, 130 F.3d 715,
722 (5th Cir. 1997)). Under current law, a medical professional
“can be prosecuted under § 841 when [his] activities fall outside
7
E.g., Outler, 659 F.2d at 1308 (“This claim is based on
the omission of any language alleging that Dr. Outler prescribed
drugs without a legitimate medical reason or beyond the course of
professional practice.”); id. at 1309 (“[A] physician may be
charged with a criminal violation of § 841(a) . . . whenever he
or she prescribes a controlled substance without a legitimate
medical reason. . . . [T]he qualifying condition of the offense,
i. e., the element of behavior beyond professional
practice . . . .”); id. (“Without behavior beyond professional
practice, there is no crime. We believe, therefore, that the
lack of a legitimate medical reason is . . . essential to the
offense . . . .”).
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the usual course of professional practice.” Moore, 423 U.S. at
124. There is no clearly established law in the Fifth Circuit
that the indictment and jury instructions must include a
reference to “legitimate medical purpose.” We therefore conclude
that the indictment and jury instruction were devoid of plain
error.
III. OTHER JURY INSTRUCTIONS
A. Standard of Review
“A properly objected-to instruction is reviewed for abuse of
discretion.” Freeman, 434 F.3d at 377 (citing Daniels, 281 F.3d
at 183). “We consider whether the instruction, taken as a whole,
‘is a correct statement of the law and whether it clearly
instructs jurors as to the principles of law applicable to the
factual issues confronting them.’” Id. (quoting Daniels, 281
F.3d at 183). “The trial court’s charge must not only be
‘legally accurate, but also factually supportable’; ‘the court
may not instruct the jury on a charge that is not supported by
the evidence.’” United States v. Mendoza-Medina, 346 F.3d 121,
132 (5th Cir. 2003) (quoting United States v. Lara-Velasquez, 919
F.2d 946, 950 (5th Cir. 1990)). “In deciding whether the
evidence reasonably supports the jury charge, the court ‘reviews
the evidence and all reasonable inferences that may be drawn
therefrom in the light most favorable to the government.’”
United States v. Newell, 315 F.3d 510, 528 (5th Cir. 2002)
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(quoting Daniels, 281 F.3d at 183).
Jury instructions that were not objected to are reviewed for
plain error. Rubio, 321 F.3d at 523. “Under the plain error
standard, we may reverse only if ‘(1) there was error (2) that
was clear and obvious and (3) that affected [the defendant’s]
substantial rights.’” United States v. Garcia Abrego, 141 F.3d
142, 165 (5th Cir. 1998) (quoting United States v. Dupre, 117
F.3d 810, 817 (5th Cir. 1997)).
B. Deliberate-Ignorance Instruction
Fuchs and Gonzales contend that the district court erred by
instructing the jury that it could find that a defendant’s
deliberate ignorance satisfied the knowledge requirement. They
challenge the deliberate-ignorance instruction on the ground that
the jury could have convicted them on the basis of negligence
rather than knowledge. Fuchs and Gonzales preserved this
argument by objecting to the instruction before the district
court; we therefore review for abuse of discretion.
Although the deliberate-ignorance instruction may present
the risk of conviction on the basis of negligence rather than
knowledge, we have consistently held that the instruction is
appropriate when the defendant claims he lacks the requisite
guilty knowledge and the proper factual basis exists for the
instruction. Newell, 315 F.3d at 528 (quoting Gray, 105 F.3d at
967). “The proper factual basis is present if the record
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supports inferences that ‘(1) the defendant was subjectively
aware of a high probability of the existence of illegal conduct;
and (2) the defendant purposely contrived to avoid learning of
the illegal conduct.’” Freeman, 434 F.3d at 378 (quoting United
States v. Scott, 159 F.3d 916, 922 (5th Cir. 1998)).
In the present case, the district court did not abuse its
discretion by including the deliberate-ignorance instruction.
First, both Fuchs and Gonzales argued to the jury that they did
not have the requisite guilty knowledge, i.e., that they did not
know that the manner in which they dispensed controlled
substances was outside the usual course of professional practice.
And second, the proper factual basis existed for the instruction.
Dr. Thompson testified that at some point Gonzales became part of
the “inner circle of discussion,” and that Gonzales was present
during conversations in which Dr. Thompson shared his concerns
about the legality of the pharmacy. Additionally, Weich
testified that, after he inspected Friendly, he informed Fuchs
that the prescriptions generated through the Internet were
invalid. After the inspection, Fuchs informed Friendly’s
employees that he was shutting down the pharmacy because its
practices were unlawful or improper. This evidence is sufficient
to support an inference that Fuchs and Gonzales were subjectively
aware of a high probability that Friendly’s procedure for
dispensing controlled substances was outside the usual course of
professional practice. And despite this awareness, there is no
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evidence that either Fuchs or Gonzales did additional research
prior to opening Main Street or took any steps to avoid unlawful
practices by operating Main Street substantially differently from
Friendly.8 This evidence is sufficient to support an inference
that Fuchs and Gonzales purposely contrived to avoid learning of
the illegal conduct. We therefore conclude that the district
court did not abuse its discretion in instructing the jury as to
deliberate ignorance.
C. Continuing Criminal Enterprise
Fuchs next contends that the district court improperly
instructed the jury with regard to the CCE count.
1. “Innocent Dupes” Instruction
As an element of CCE, the government must prove that Fuchs
organized, supervised, or managed five or more persons who acted
in concert with him. See 21 U.S.C. § 848(c)(2)(A); United States
v. Bass, 310 F.3d 321, 325-26 (5th Cir. 2002) (citing 21 U.S.C.
8
Fuchs’s and Gonzales’s reliance on United States v.
Hilliard, 31 F.3d 1509 (10th Cir. 1994) is misplaced. The Tenth
Circuit panel in Hilliard held that a deliberate-ignorance jury
instruction was improper because there was no evidence the
defendant contrived to avoid knowing his actions were unlawful.
After the defendant in Hilliard received a letter from a
government agency stating that his actions violated certain civil
regulations, the defendant forwarded the letter to his counsel,
who conducted research and issued an opinion contradicting the
agency’s position. Id. at 1512-13. Relying on his counsel’s
opinion, he continued the activity that was later determined to
violate the civil regulations. Id. at 1513. Hilliard is
distinguishable because here there is no evidence that either
Fuchs or Gonzales conducted additional research after learning of
TSBP’s position that Friendly’s prescriptions were invalid.
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§ 848(c); Garcia Abrego, 141 F.3d at 164). The “in concert with”
requirement implies that the five individuals must have agreed to
participate in the criminal enterprise. See Rutledge v. United
States, 517 U.S. 292, 299 n.10 (1996) (citing Jeffers v. United
States, 432 U.S. 137, 148-49 (1977)). Thus, an innocent
participant acting without criminal intent cannot be counted as
one of the five individuals in the CCE. United States v. Ward,
37 F.3d 243, 248 (6th Cir. 1994) (citing United States v. Smith,
24 F.3d 1230, 1234 (10th Cir. 1994)).
Fuchs posits that the district court erred by not including
an instruction specifically stating that “innocent dupes” cannot
be counted toward the five supervisees. Fuchs did not request
such an instruction at trial; we therefore review for plain
error. Rubio, 321 F.3d at 523.
We cannot say that the district court plainly erred by not
including a specific instruction concerning “innocent dupes.”
The district court instructed the jury that to convict Fuchs of
CCE it must find that he “undertook such violations in concert
with five or more other persons.” R. 364 (emphasis added). This
instruction tracks the language of both § 848 and the Fifth
Circuit Pattern Jury Charge. The “in concert with” language that
is present in both the instruction and the statute indicates that
the jury could count as supervisees only those individuals who
agreed with Fuchs to engage in the criminal conduct. See
Rutledge, 517 U.S. at 299 n.10. We therefore find no plain
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error.
2. Organizer/Supervisor/Manager Instruction
Fuchs additionally challenges the sufficiency of the
organizer/supervisor/manager jury instruction. He contends that
the court should have instructed the jury that the term
“organizer, supervisor, or manager” requires that he exercised
some form of managerial authority over the five individuals.
Without such an instruction, he suggests, the jury may have
convicted him on the basis of individuals who could not have been
supervisees as a matter of law. Because Fuchs did not object on
this basis before the district court, we review for plain error.
Although we acknowledge that a number of circuits have held
that § 848 requires some degree of managerial authority, see
Garcia Abrego, 141 F.3d at 166 n.11 (collecting cases), we have
not so held. In Garcia Abrego, we specifically declined to
consider whether any requirement of managerial authority applies
in the Fifth Circuit. Garcia Abrego, 141 F.3d at 166 n.11.
Since Garcia Abrego, we have made clear that a buyer/seller
relationship alone is insufficient. See Bass, 310 F.3d at 327.
We have also stated that “the terms ‘organized,’ ‘supervised,’
and ‘managed’ are not words of art and should be interpreted
according to their everyday meanings.” Id. (quoting United
States v. Gonzales, 866 F.2d 781, 784 (5th Cir. 1989)). But we
have not addressed any need for a showing of managerial
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authority.9
We have no occasion to decide the question in this case
either because our review here is for plain error. “A ‘plain’
error is one [that] is clear under current law.” Palmer, 456
F.3d at 491 (citing Russell, 130 F.3d at 722). Because the law
in the Fifth Circuit is not clear that managerial authority is
required for an individual to be an organizer or supervisor
within the meaning of the CCE statute, any error in not
instructing the jury as such is not plain error.
IV. SUFFICIENCY OF THE EVIDENCE
Fuchs, Gonzales, and Lemons contend that the district court
erred in denying their respective Rule 29 motions for judgment of
acquittal.
A. Standard of Review
We review de novo the district court’s denial of a properly
preserved motion for judgment of acquittal. United States v.
Anderson, 174 F.3d 515, 522 (5th Cir. 1999) (citing United States
9
We recognize that the 2001 version of the Fifth Circuit
Pattern Jury Charge includes an instruction as to managerial
authority: “The term ‘organizer, supervisor, or manager’ means
that the defendant was more than a fellow worker and that the
defendant either organized or directed the activities of five or
more other persons, exercising some form of managerial authority
over them.” COMMITTEE ON PATTERN JURY INSTRUCTIONS, DISTRICT JUDGES ASS’N
FIFTH CIR. PATTERN JURY INSTRUCTIONS (CRIMINAL CASES) 226-27 (2001)
(emphasis added). A note following the pattern instruction
states that the managerial-authority requirement is derived from
Garcia Abrego. But we reiterate that we explicitly did not
decide this question in Garcia Abrego, and we do not do so in
this case.
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v. Payne, 99 F.3d 1273, 1278 (5th Cir. 1996)). “In determining
whether there was sufficient evidence to sustain [the]
convictions, we must decide, viewing the evidence and the
inferences therefrom in the light most favorable to the verdict,
whether a rational juror could have found [the defendant] guilty
beyond a reasonable doubt.” Id. (citing United States v. Burton,
126 F.3d 666, 669 (5th Cir. 1997); Payne, 99 F.3d at 1278). “The
evidence need not exclude every reasonable hypothesis of
innocence or be wholly inconsistent with every conclusion except
that of guilt, and the jury is free to choose among reasonable
constructions of the evidence.” Id. (quoting Burton, 126 F.3d at
669-70). “Moreover, our standard of review does not change if
the evidence that sustains the conviction is circumstantial
rather than direct.” Id. (citing Burton, 126 F.3d at 670; United
States v. Cardenas, 9 F.3d 1139, 1156 (5th Cir. 1993); United
States v. Bell, 678 F.2d 547 at 549 n.3 (Former 5th Cir. 1982)).
B. Continuing Criminal Enterprise
Count two charged Fuchs with CCE in violation of 21 U.S.C.
§ 848. For a conviction under the CCE statute, the government
must prove that (1) the defendant organized, supervised, or
managed five or more persons (2) in a continuing series of drug
violations (3) from which the defendant obtained substantial
income. Bass, 310 F.3d at 325-26 (citing 21 U.S.C. § 848(c);
Garcia Abrego, 141 F.3d at 164).
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Fuchs contends that the government failed to present
sufficient evidence to prove the element of organizing,
supervising, or managing five or more persons. He maintains that
for an individual to count as one of the five supervisees, he
must have exercised control over the individual and the
individual must have had criminal intent. Fuchs concedes here,
as he did before the district court, that there was sufficient
evidence with regard to three individuals: Angela Fuchs, Lemons,
and Gonzales; therefore, we will affirm Fuchs’s CCE conviction if
there was sufficient evidence as to at least two additional
individuals. Fuchs disputes the district court’s conclusion that
there was sufficient evidence with respect to four additional
individuals: Dr. Thompson, Dr. Nelson, Shadid, and Myron
Thompson. As to Drs. Thompson and Nelson, Fuchs posits that they
cannot be regarded as supervisees because he did not exercise
control over them. And as to Shadid and Myron Thompson, Fuchs
opines that they did not have the requisite criminal intent.
We first consider whether a rational jury could have found
beyond a reasonable doubt that Myron Thompson and Shadid had the
requisite criminal intent to be supervisees within the meaning of
§ 848. As we noted supra at § III(C)(1), § 848’s “in concert
with” requirement implies that the five individuals must have
agreed to participate in the criminal enterprise, and an innocent
participant therefore cannot be counted as one of the five
individuals in the CCE.
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Myron Thompson testified that he and Fuchs opened Main
Street in Oklahoma. Prior to opening the pharmacy, Myron
Thompson had some concerns about its legality, and, despite
Fuchs’s assurances that it would be run in a lawful manner, he
continued to have reservations about whether all of his concerns
could be resolved. After the pharmacy opened in October 2000,
Myron Thompson’s concerns multiplied. He testified that within
the first two weeks he was concerned that the pharmacy was
issuing far more prescriptions (over 200 per day) than he felt
Dr. Nelson could have realistically been evaluating. He also
testified about other red flags: an unusually large percentage of
total prescriptions (around 70%) was for hydrocodone, Main Street
charged much higher prices than other pharmacies did, almost
every hydrocodone prescription was for 100 tablets, and the
average age of the customers was much younger than most other
pharmacies that dispensed a large percentage of pain medications.
He quickly concluded that the pharmacy was dispensing controlled
substances based on prescriptions written without a
doctor/patient relationship. He testified that at the end of two
weeks he told Fuchs that he was not comfortable with the
situation, and Fuchs told him that he would try to find a
replacement pharmacist. Myron Thompson continued working at Main
Street until Shadid replaced him on November 22, 2000. Based on
Myron Thompson’s testimony, we conclude that a rational jury
could have found beyond a reasonable doubt that he acted in
-22-
concert with Fuchs during his final weeks at Main Street, after
he concluded the prescriptions were not based on a proper
doctor/patient relationship.
We also conclude that a rational jury could have found that
Shadid acted in concert with Fuchs. Shadid was the main
pharmacist at Main Street during most of the time it was open.
Shadid came into the pharmacy during Myron Thompson’s last two
days so that Myron Thompson could give him an overview of the
operation and the dispensing room. Myron Thompson testified that
he told Shadid during this time “that he would want to watch
closely if he had any legal concerns about anything at all[]
[and] that he should rely upon his own judgment and get his own
answers and not necessarily take [Fuchs’s] word for all things.”
Supp. R. 898. Jones, who worked at both Friendly and Main
Street, testified that the operation at Main Street while Shadid
was there was substantially the same as it was at Friendly.
Jones testified that a single physician——Dr. Nelson, who was
located in Oklahoma——approved most of the prescriptions for Main
Street, even though the pharmacy averaged 300 to 350
prescriptions per day. Based on the testimony of Myron Thompson
and Jones, the jury could have inferred that Shadid, a licensed
pharmacist, became aware of a high probability of risk that the
hydrocodone prescriptions were invalid. There was therefore
sufficient evidence for the jury to find that Shadid acted in
concert with Fuchs and was a supervisee within the meaning of
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§ 848.
Because we conclude that a rational jury could have found
beyond a reasonable doubt that Myron Thompson and Shadid were
supervisees acting in concert with Fuchs, we need not consider
whether Fuchs organized, supervised, or managed any of the
doctors associated with either of the pharmacies.
C. Conspiracy to Commit Money Laundering
1. Background
Count six charged that Fuchs and Gonzales conspired with Dr.
Ogle and others to commit money laundering10 in violation of 18
U.S.C. § 1956(h). To establish conspiracy to commit money
laundering, the government must prove (l) that there was an
agreement between two or more persons to commit money laundering
and (2) that the defendant joined the agreement knowing its
purpose and with the intent to further the illegal purpose.
United States v. Meshack, 225 F.3d 556, 573-74 (5th Cir. 2000)
(citing United States v. Threadgill, 172 F.3d 357, 366 (5th Cir.
1999)). “Direct evidence of a conspiracy is unnecessary; each
element may be inferred from circumstantial evidence.” United
States v. Casilla, 20 F.3d 600, 603 (5th Cir. 1994) (citing
Cardenas, 9 F.3d at 1157). “An agreement may be inferred from a
10
Although count six’s heading is “Money Laundering
(Violation of 18 U.S.C. § 1956 and 1957),” it is clear from the
text of the indictment that the grand jury charged Fuchs and
Gonzales with conspiracy to commit money laundering in violation
of 18 U.S.C. § 1956(h).
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‘concert of action.’” Id. (citing Cardenas, 9 F.3d at 1157;
United States v. Natel, 812 F.2d 937, 940 (5th Cir. 1987)). The
government need not prove an overt act in furtherance of the
conspiracy. Whitfield v. United States, 543 U.S. 209, 219
(2005).
The indictment alleged two objects of the conspiracy: (1)
laundering of monetary instruments in violation of 18 U.S.C.
§ 1956(a)(1)(A)(i) and (2) engaging in a monetary transaction in
property derived from specified unlawful activity in violation of
18 U.S.C. § 1957(a). Even if there was insufficient evidence as
to one of the objects of the conspiracy, we will nonetheless
uphold the conspiracy conviction if there was sufficient evidence
as to the other object. See United States v. Mann, 161 F.3d 840,
857 (5th Cir. 1998) (citing Griffin v. United States, 502 U.S.
46, 56-60 (1991)).
2. Analysis
Fuchs and Gonzales first challenge the sufficiency of the
evidence with regard to the second alleged object of the
conspiracy——engaging in monetary transactions in property derived
from specified unlawful activity in violation of § 1957(a). They
argue that the government failed to prove an agreement to violate
§ 1957 either through direct evidence of an agreement or through
ongoing § 1957 violations giving rise to an inference of an
agreement. Gonzales additionally maintains that there was
-25-
insufficient evidence that he knew the pharmacy was operating
illegally.
The bulk of Fuchs’s and Gonzales’s first argument relates to
the sufficiency of the evidence as to actual violations of
§ 1957. We note initially that the government need not have
proven an actual violation of § 1957; it is sufficient that the
government established that the defendant joined an agreement to
commit money laundering knowing the agreement’s illegal purpose
and intending to further that purpose. To the extent, however,
that the government used proof of ongoing § 1957 violations to
create an inference of an agreement to commit money laundering,
we review the sufficiency of the evidence demonstrating that
Fuchs and Gonzales violated § 1957.
The crime of engaging in monetary transactions in property
derived from specified unlawful activity in violation of
§ 1957(a) consists of three elements: (1) property valued at more
than $10,000 that was derived from a specified unlawful activity,
(2) the defendant’s engagement in a financial transaction with
the property, and (3) the defendant’s knowledge that the property
was derived from unlawful activity. United States v. Rodriguez,
278 F.3d 486, 490 (5th Cir. 2002) (citing United States v.
Wilson, 249 F.3d 366, 379 (5th Cir. 2001)). Where the financial
transaction involves an account commingling both “clean” and
“tainted” funds, “we have developed the rule that when the
aggregate amount withdrawn from [the] account . . . exceeds the
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clean funds, individual withdrawals may be said to be of tainted
money, even if a particular withdrawal was less than the amount
of clean money in the account.” United States v. Davis, 226 F.3d
346, 357 (5th Cir. 2000).
Relying on Davis, Fuchs and Gonzales contend that the
government did not prove financial transactions involving tainted
funds, i.e., proceeds from the sale of controlled substances.
The government presented evidence that in aggregate the
pharmacies’ accounts commingled approximately $3 million in
proceeds from the sale of non-controlled substances (clean
funds)11 and approximately $5.7 million in proceeds from the sale
of controlled substances (tainted funds). The government also
presented evidence of approximately $4 million in financial
transactions involving the pharmacies’ accounts, including $2.25
million in payments to Fuchs, $218,000 in property and cash to
Gonzales, and approximately $1.6 million in other transactions.
Because the total amount of the financial transactions ($4
million) exceeded the amount of clean funds ($3 million), the
government sufficiently demonstrated financial transactions
involving the proceeds of unlawful activity in violation of
§ 1957.
11
By referring to these proceeds as “clean funds,” we do
not mean to say that the pharmacies’ sale of non-controlled
prescriptions was appropriate or even lawful. We use this term
simply to differentiate them from proceeds derived from specified
unlawful activity as that term is used in § 1957.
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Gonzales additionally attempts to negate the second element
of the conspiracy count: that he knew the agreement’s purpose.
He alleges that there was insufficient evidence to show he knew
the pharmacy’s proceeds were derived from unlawful activity. But
in our discussion of the deliberate-ignorance jury instruction
supra at § III(B), we concluded that there was sufficient
evidence to support an inference that Gonzales was aware of a
high probability of the operation’s illegality yet deliberately
remained ignorant thereof. For this reason, we reject Gonzales’s
argument that he lacked knowledge.
Because there was sufficient circumstantial evidence from
which a rational jury could have inferred both an agreement to
violate § 1957 and the defendants-appellants’ knowledge of the
agreement, we need not address the sufficiency of the evidence as
to conspiracy to violate § 1956(a)(1)(A)(i). See Mann, 161 F.3d
at 857 (citing Griffin, 502 U.S. at 56-60). We therefore affirm
the district court’s denial of the motions of judgment of
acquittal as to count six.
D. Conspiracy to Distribute a Controlled Substance
Count one charged that Lemons conspired with Fuchs,12 Dr.
Speak, Dr. Ogle, and others to dispense and possess with intent
to dispense hydrocodone, a Schedule III controlled substance, not
12
As we noted, Fuchs was also charged in count one and was
convicted of conspiracy to distribute a controlled substance. On
the government’s post-trial motion, however, the district court
dismissed count one as to Fuchs.
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in the usual course of professional practice, in violation of 21
U.S.C. § 846.13 Lemons challenges the sufficiency of the
evidence with regard to his involvement in the conspiracy.
To prove the offense of conspiracy to distribute a
controlled substance, the government must establish (1) the
existence of an agreement between two or more persons to violate
narcotics laws, (2) the defendant’s knowledge of the conspiracy,
and (3) the defendant’s voluntary participation in the
conspiracy. Arnold, 416 F.3d at 358-59 (citing United States v.
Thomas, 348 F.3d 78, 82 (5th Cir. 2003)). “Direct evidence is
not required; each element may be inferred from circumstantial
evidence.” Cardenas, 9 F.3d at 1157 (citing United States v.
Espinoza-Seanez, 862 F.2d 526, 537 (5th Cir. 1988)). The
defendant’s knowledge of and participation in the conspiracy may
be “inferred from a ‘collection of circumstances.’” Id. (quoting
Espinoza-Seanez, 862 F.2d at 537; United States v. Vergara, 687
F.2d 57, 61 (5th Cir. 1982); United States v. Marx, 635 F.2d 436,
439 (5th Cir. Jan. 1981)). “Mere presence or association alone,
however, [is] not sufficient to prove participation in a
conspiracy.” United States v. Turner, 319 F.3d 716, 721 (5th
Cir. 2003) (citing United States v. Bermea, 30 F.3d 1539, 1551
13
21 U.S.C. § 846 provides: “Any person who attempts or
conspires to commit any offense defined in this subchapter shall
be subject to the same penalties as those prescribed for the
offense, the commission of which was the object of the attempt or
conspiracy.”
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(5th Cir. 1994)). “Likewise, ‘the government may not prove up a
conspiracy merely by presenting evidence placing the defendant in
a climate of activity that reeks of something foul.’” United
States v. Mendoza, 226 F.3d 340, 343 (5th Cir. 2000) (quoting
United States v. Maltos, 985 F.2d 743, 746 (5th Cir. 1992)
(internal quotation marks omitted)). “Nevertheless, a court may
consider a defendant’s presence or association with a conspiracy
as evidence of participation along with other circumstantial
evidence.” Id. (citing Cardenas, 9 F.3d at 1157).
Lemons challenges the sufficiency of the evidence with
regard to his knowing participation in the conspiracy; that is,
he contends there was insufficient evidence with regard to the
second and third elements. He maintains that he was not a member
of the pharmacy’s “inner circle,” that he did not share in the
pharmacy’s profits but rather was paid a salary, and that he was
thus nothing more than a conscientious, yet unwitting, pharmacist
working in a “climate of activity that reeks of something foul.”
Lemons, a licensed pharmacist, worked at Friendly from April
2000 to September 2000. Testimony from various witnesses
established that during this period the pharmacy dispensed over
1,000 prescriptions monthly for controlled substances; a very
large percentage of the pharmacy’s total prescriptions was for
hydrocodone and other controlled substances; the prescriptions
were initiated by orders sent to the pharmacy via its web site;
the pharmacy’s customers were located throughout the United
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States; the pharmacy completed the prescription forms and
forwarded them to physicians for approval and signature; Dr.
Thompson was the approving physician for nearly all these
prescriptions; Dr. Thompson was not paid by the customers, but
rather was paid per each prescription filled by the pharmacy; the
dosage for most prescriptions was standardized rather than
tailored for each patient; the pharmacy’s prices for drugs were
exceedingly higher than average; and the pharmacy did not accept
insurance. Dr. Thompson testified that the circumstances at the
pharmacy were such that it should have been obvious to anyone
working there that he did not have a valid physician/patient
relationship with the customers for whom he was approving
prescriptions for controlled substances. And Humphreys testified
that Lemons expressed to him some concern about the pharmacy’s
legality. A rational jury could have found from this
circumstantial evidence that Lemons knew of an agreement to
unlawfully distribute controlled substances.
Additionally, Lemons’s knowing participation in the
conspiracy is evidenced by his untruthfulness to the TSBP
inspector. Weich testified that Lemons was the first person he
spoke with when he arrived at Friendly for the August 2000
inspection. When Weich noticed the high volume of unusual drugs
being dispensed, he asked Lemons about the pharmacy’s customer
base. Instead of acknowledging that the Internet was the source
of the vast majority of Friendly’s customers, Lemons responded
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that the pharmacy’s customers came from the neighborhood and a
rehab center in the same shopping center. Were Lemons merely an
unwitting pharmacist working in a “climate of activity that reeks
of something foul,” as he purports to have been, he presumably
would have had no reason to lie to Weich about the customer base.
The jury could have inferred from this that Lemons was aware of
the conspiracy and lied to Weich in order to conceal it.
Accordingly, we conclude that, with respect to Lemons, a
rational jury could have found beyond a reasonable doubt each of
the elements of conspiracy to dispense a controlled substance
outside the usual course of professional practice.
V. RULE 33 MOTIONS FOR A NEW TRIAL
After their convictions, Fuchs and Gonzales timely filed
Rule 33 motions for a new trial. They now appeal the district
court’s denial of their motions.14
A. Weight of the Evidence
Fuchs and Gonzales asserted as one ground for their new-
trial motions that the verdict was against the weight of the
evidence. They now contend that, in deciding the motions, the
district court improperly applied the standard for a Rule 29
motion for judgment of acquittal. We review for abuse of
discretion the denial of a new-trial motion challenging the
14
Lemons also filed a motion for new trial, but he does not
appeal the district court’s denial of his motion.
-32-
weight of the evidence. United States v. Infante, 404 F.3d 376,
387 (5th Cir. 2005).
The district court considered together Fuchs’s and
Gonzales’s motions for judgment of acquittal and for a new trial.
In deciding the motions, the court viewed the evidence in the
light most favorable to the verdict, and it denied the motions on
the basis that there was sufficient evidence to support the
verdict. Viewing the evidence in the light most favorable to the
verdict is tantamount to ruling on a motion for judgment of
acquittal rather than a new-trial motion. United States v.
Robertson, 110 F.3d 1113, 1117 (5th Cir. 1997). On a motion for
new trial, the court may weigh the evidence and consider the
credibility of witnesses. Id. (citing Tibbs v. Florida, 457 U.S.
31, 37-38 (1982)). The district court therefore erred by
applying the incorrect standard to the new-trial motions.
Nonetheless, we decline to set aside the district court’s
denial of the new-trial motions because it would have been an
abuse of discretion had the district court granted them.
Although the district court has broad discretion to decide a Rule
33 motion, the court may not grant the motion unless the evidence
preponderates heavily against the verdict such that it would be a
miscarriage of justice to let the verdict stand. Arnold, 416
F.3d at 360. There was more than sufficient evidence of Fuchs’s
and Gonzales’s guilt, and the evidence did not approach
preponderating against the verdict. We therefore affirm the
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district court’s denial of the Rule 33 motions for new trial.
B. Ineffective Assistance of Counsel
Fuchs contends that the district court should have granted
his Rule 33 motion for a new trial because he received
ineffective assistance of counsel at trial.15 He asserts that
his trial counsel was ineffective on two grounds: (1) his counsel
failed to request a jury instruction that “innocent dupes” cannot
be counted as supervisees in the criminal enterprise and (2) his
counsel inaccurately advised him that the mandatory minimum
sentence for a CCE conviction was ten years.
A claim of ineffective assistance of counsel presents a
mixed question of law and fact. Riley v. Dretke, 362 F.2d 302,
305 (5th Cir. 2004) (citing Lockett v. Anderson, 230 F.3d 695,
710 (5th Cir. 2000)). The district court’s findings of fact are
reviewed for clear error, and its conclusions of law are reviewed
de novo. Id. (citing Beazley v. Johnson, 242 F.3d 248, 255 (5th
Cir. 2001)). A factual finding is clearly erroneous if, although
there is evidence to support it, after viewing the record we are
“left with the definite and firm conviction that a mistake has
15
In the usual case, where a defendant’s ineffective-
assistance-of-counsel claim is not presented before the district
court, we generally decline to address the claim on direct
appeal. See, e.g., United States v. Gonzales, 436 F.3d 560, 581
(5th Cir. 2006). But this is not the usual case in this regard.
After his convictions, Fuchs discharged his trial counsel, and
his new counsel argued in the motion for new trial that Fuchs’s
trial counsel were ineffective. We therefore will address
Fuchs’s claim on direct appeal.
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been committed.” United States v. U.S. Gypsum Co., 333 U.S. 364,
395 (1948).
Both of Fuchs’s ineffective-assistance-of-counsel claims are
governed by the standard set forth in Strickland v. Washington,
466 U.S. 668 (1984). To prevail, Fuchs must make two showings.
First, he must demonstrate that his trial counsel’s performance
fell below an objective standard of reasonableness. See
Strickland, 466 U.S. at 687-88. And second, he must show that
his counsel’s unreasonable performance prejudiced him, i.e., that
the errors were so serious as to deprive him of a fair trial with
a reliable result. See id. at 687.
Fuchs has not demonstrated that his trial counsel’s failure
to request an “innocent dupes” jury instruction was objectively
unreasonable. As we noted supra at § III(C)(3), the district
court’s CCE instruction tracked the language of the Fifth Circuit
Pattern Jury Charge. And the district court’s charge included an
instruction that the five supervisees must have acted “in concert
with” Fuchs. Fuchs’s trial counsel could reasonably have
concluded that the jury instruction was adequate. Fuchs has
therefore failed to demonstrate Strickland’s first prong.
Fuchs also has not made the required showing as to his claim
of ineffective counsel on the ground that his trial counsel
erroneously informed him that the statutory minimum sentence for
a CCE conviction is ten years’ imprisonment. Fuchs contends
that, had he been accurately informed that the minimum sentence
-35-
was twenty years’ imprisonment, it would have affected his
decision whether to accept a plea offer. The district court
conducted an evidentiary hearing and made a factual finding that
Fuchs’s counsel had not improperly advised him as to the
mandatory minimum sentence. After reviewing the record, we are
not left with the definite and firm conviction that the district
court’s finding is erroneous. Fuchs’s trial counsel——John H.
Read II and Danny D. Burns——both testified that they informed
Fuchs of the twenty-year mandatory minimum sentence. Burns
testified that he had told Fuchs about a theory he had to bring
the minimum down to ten years but that Fuchs should operate off
the assumption that the minimum was still twenty years. The
district court found that C. Tony Wright——who was Gonzales’s
counsel and negotiated with the government on both Gonzales’s and
Fuchs’s behalf——subjectively believed the minimum to be ten
years’ imprisonment, but the court found that Wright’s belief was
not necessarily the same as Fuchs’s. We conclude that the
district court did not clearly err in crediting the testimony of
Fuchs’s trial counsel and finding that Fuchs had been properly
informed of the mandatory minimum sentence. Fuchs therefore has
not established the first prong of his Strickland challenge.
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C. Inappropriate Telephone Call
After his conviction, Fuchs alleged that during trial his
counsel received an improper telephone call from the court’s
security officer. Fuchs averred that, approximately two days
into the defense’s case, the court’s security officer called
Fuchs’s counsel and advised him that the defense should rest
quickly because jurors were becoming agitated by repetitive
defense testimony and because he had overheard certain jurors
expressing that the government had not proved its case.
In his post-trial motions, Fuchs argued before the district
court that the improper phone call warranted a new trial because
it affected his counsel’s decision whether to present additional
evidence and his decision whether to testify. The district court
conducted an evidentiary hearing and made factual findings, which
we review for clear error. The court assumed arguendo that the
phone call had taken place, it found that the call did not affect
any decision that was made, and it denied Fuchs’s motion on this
basis.
Fuchs argues before this court that we should remand for a
factual finding as to whether the phone call actually transpired.
He posits that his trial counsel may have lied to him about the
phone call as part of an elaborate ruse to convince him not to
testify. He opines that we should remand for a finding because
if the call did not occur, then his trial counsel lied to him,
-37-
thereby depriving him of his right to effective counsel.
After reviewing the record, we conclude that the district
court did not clearly err in finding that the occurrence or non-
occurrence of the phone call did not affect Fuchs’s decision
whether to testify. Even if on remand the district court were to
find that the call did not take place, it would not affect the
outcome of Fuchs’s new-trial motion. Because remanding would be
superfluous, we decline to do so on this basis.
VI. ADMISSIBILITY OF EVIDENCE
Finally, Fuchs and Gonzales contend that the district court
erred in permitting the government to offer testimony showing
that two randomly chosen pharmacies filled far fewer
prescriptions for controlled substances than did Fuchs’s
pharmacies. The government offered into evidence a chart
comparing the number of hydrocodone tablets dispensed at Friendly
over a fourteen-month period with the number of hydrocodone
tablets dispensed at two local pharmacies in Garland, Texas over
the same period. The chart showed that the local pharmacies
dispensed 165,200 and 256,450 tablets respectively and that
Friendly dispensed 3,243,900 tablets. All three defendants
objected on the ground that the chart was barred by FED. R. EVID.
403. The district court overruled the defendants’ objections and
admitted the chart into evidence.
We review the district court’s evidentiary decisions for
-38-
abuse of discretion. United States v. Hicks, 389 F.3d 514, 522
(5th Cir. 2004) (citing United States v. Pace, 10 F.3d 1106, 1115
(5th Cir. 1993)). Even if the district court erroneously
admitted prejudicial evidence, we will not reverse the conviction
if the error was harmless. Id. (citing Pace, 10 F.3d at 1116)).
Fuchs and Gonzales maintain that the chart should not have
been admitted because its probative value was substantially
outweighed by its prejudicial effect. Relying on United States
v. Seelig, 622 F.2d 207 (6th Cir. 1980), they argue that the
chart had little probative value because it compared local,
neighborhood pharmacies with an Internet pharmacy having
customers throughout the United States without making any attempt
to compare the pharmacies in terms of total sales.
We need not decide whether the district court abused its
discretion in admitting the chart because we conclude that its
admission, even if erroneous, was nonetheless harmless. The
chart was offered to show that the defendants should have known,
based on the comparatively high volume of controlled substances
being dispensed at Friendly, that the physicians and pharmacists
were acting outside the usual course of professional practice.
As we have discussed, there was ample other evidence from which
the jury could have inferred the defendants’ guilty knowledge.
Any error in admitting the chart was therefore harmless.
-39-
VII. CONCLUSION
For the foregoing reasons, the defendants-appellants’
convictions are AFFIRMED.
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