United States v. Carlos Venegas ( 2020 )

Case: 19-10574 Document: 00515553127 Page: 1 Date Filed: 09/04/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
September 4, 2020
No. 19-10574
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Carlos Luis Venegas,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:16-CR-479-1
Before Clement, Higginson, and Engelhardt, Circuit Judges.
Per Curiam:*
A jury convicted Carlos Luis Venegas of conspiracy to distribute a
controlled substance in connection with multiple “pill mills” where he
worked as a supervising physician. He now appeals, arguing the district court
erred by giving a deliberate ignorance instruction that was not supported by
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 19-10574 Document: 00515553127 Page: 2 Date Filed: 09/04/2020
No. 19-10574
the evidence. The parties disagree on whether Venegas preserved his
challenge. Although Venegas objected to the deliberate indifference
instruction in his pretrial response to the Government’s proposed jury
charge and instructions, he did not inform the district court of the grounds
for his objection as required by Federal Rule of Criminal Procedure 30(d).
Accordingly, plain error review applies. See Fed. R. Crim. P. 30(d);
United States v. Redd, 355 F.3d 866, 874-75 (5th Cir. 2003). Under the plain
error standard, Venegas must show a “clear or obvious error that affects his
substantial rights; if he does, this court has discretion to correct a forfeited
error that seriously affects the fairness, integrity, or public reputation of
judicial proceedings” but is not required to do so. Redd, 355 F.3d at 874
(internal quotation marks and citation omitted). An error affects a
defendant’s substantial rights if he shows “a reasonable probability that, but
for the error, the outcome of the proceeding would have been different.”
Molina-Martinez v. United States, 136 S. Ct. 1338, 1343 (2016) (internal
quotation marks and citation omitted).
“A deliberate ignorance instruction informs the jury that it may
consider evidence of the defendant’s charade of ignorance as circumstantial
proof of guilty knowledge.” United States v. Brown, 871 F.3d 352, 355
(5th Cir. 2017) (internal quotation marks and citation omitted). The
instruction should be given only when the “defendant claims a lack of guilty
knowledge and the proof at trial supports an inference of deliberate
indifference” by showing “(i) subjective awareness of a high probability of
the existence of illegal conduct; and (ii) purposeful contrivance to avoid
learning of the illegal conduct.” United States v. Alaniz, 726 F.3d 586, 612
(5th Cir. 2013) (internal quotation marks and citation omitted). To
determine whether the evidence supports the instruction, this court “views
the evidence and all reasonable inferences that may be drawn from the
evidence in the light most favorable to the Government.” United States
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No. 19-10574
v. Araiza-Jacobo, 917 F.3d 360, 366 (5th Cir. 2019) (internal quotation marks
and citation omitted), cert. denied, 140 S. Ct. 453 (2019).
Although Venegas contends he did not know the clinics were
operating as pill mills, the Government presented considerable evidence that
he was subjectively aware of a high probability of the existence of illegal
conduct. He directed his supervisees to prescribe the maximum dosage of
hydrocodone in contravention of the standard of care, he was aware the
clinics were prescribing hydrocodone to patients who had no legitimate
medical need for it, a pharmacist notified him that her pharmacy had received
seemingly illegitimate prescriptions from the clinics, and he was aware of
suspicious activity at the clinics. There is also substantial evidence that
Venegas purposely contrived to avoid learning of the clinics’ illegal conduct.
He visited the clinics only once a week when most of the patients were gone
and eventually stopped going to the clinics altogether, he did not provide
adequate oversight to his supervisees or take any steps to ensure the clinics
were running properly, he did not monitor the number of prescriptions for
controlled substances that were being issued under his license, and he did not
follow up when his supervisees raised concerns about the clinics’ operations
and prescribing practices.
The totality of the evidence supports an inference of deliberate
ignorance on Venegas’s part, and the district court did not err at all, much
less plainly err, in giving the instruction. But even if it had, Venegas cannot
show a reasonable probability that the outcome would have been different but
for the error, because there is ample evidence that Venegas had actual
knowledge of the pill mill conspiracy. See Molina-Martinez, 136 S. Ct. at 1343;
United States v. Delgado, 672 F.3d 320, 340-41 (5th Cir. 2012). Accordingly,
the district court’s judgment is AFFIRMED.
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