United States v. Abiodun Fabode ( 2022 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 22a0447n.06
Case No. 21-1491
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Nov 08, 2022
)
UNITED STATES OF AMERICA, DEBORAH S. HUNT, Clerk
)
Plaintiff - Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE EASTERN DISTRICT OF
ABIODUN OLUFEMI FABODE, ) MICHIGAN
Defendant - Appellant. ) OPINION
)
Before: SILER, McKEAGUE, and LARSEN, Circuit Judges.
SILER, Circuit Judge. Abiodun Olufemi Fabode was a licensed pharmacist and the co-
owner of Friendz Pharmacy in Detroit, Michigan. In 2016, agents with the United States Drug
Enforcement Administration noticed a series of “red flags” at Friendz Pharmacy. Those red flags
included pattern prescribing (where the same doctor repeatedly prescribes the same type of opioid,
the same strength opioid, and the same number of tablets to multiple patients); slotting (where
doctors and pharmacists strategically space out prescriptions to avoid suspicion); remarkably high
opioid prices; and an unusual number of patients paying for drugs with cash. These were all signs
of a deep-seated and complicated drug-diversion conspiracy.
Here is how the scheme worked. A series of so-called “patient recruiters” found and paid
sham patients to fraudulently seek out opioid prescriptions; some recruiters had as many as 80
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sham patients at a time. Those patients then obtained opioid prescriptions from complicit doctors,
i.e., doctors who were paid to write prescriptions for patients even though the patients had no
identifiable medical need. Patient recruiters then met the patients, paid the patients for their
prescriptions, and took those prescriptions to a complicit pharmacy, e.g., Friendz Pharmacy.
There, a complicit pharmacist filled the prescriptions, charged a premium—as much as a 400%
markup on every prescription—and then handed the drugs directly to the patient recruiters. The
patient recruiters then resold the drugs at an even higher price to street-level drug dealers.
Everyone profited: the patient recruiters resold the opioids for street value, the patients earned
about $100 for every prescription they procured, the doctors earned a substantial fee for every
prescription they wrote, and the pharmacists earned a hefty profit on every prescription they sold.
Fabode’s pharmacy sold a large quantity of exorbitantly priced opioids, Fabode personally
filled many of the illicit prescriptions, and he often bypassed the sham patients and ensured that
opioids were handed directly to the patient recruiters.
In 2018, federal prosecutors charged Fabode and five of his coconspirators with a series of
federal drug-distribution charges. Every defendant except for Fabode pleaded guilty and
cooperated with the government. Fabode proceeded to trial, and several of his codefendants
testified against him. Their testimony linked Fabode to every facet of the conspiracy: the planning,
the patient recruitment, the drug sales, and the attempted coverup. Fabode was convicted for
violating 21 U.S.C. §§ 841(a)(1) & 846, which together prohibit any person without statutory
authorization from knowingly or intentionally conspiring “to manufacture, distribute, or dispense,
or possess with intent to manufacture, distribute, or dispense, a controlled substance.” The district
court sentenced him to 96 months of imprisonment followed by three years of supervised release.
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Fabode now challenges his convictions and sentence. He takes issue with several
statements made by the prosecutors at trial, one of the district court’s evidentiary rulings, the
district court’s drug-quantity calculation, his sentence to a longer term of imprisonment than that
received by his codefendants, and portions of the district court’s jury instructions. We affirm.
I
Fabode believes prosecutorial misconduct tainted his trial. He supports his prosecutorial-
misconduct claim with three arguments, none of which persuades us.
First, he says the prosecution impermissibly vouched for the credibility of its cooperating
witnesses. “Improper vouching occurs when a jury could reasonably believe that a prosecutor was
indicating a personal belief in a witness’[s] credibility.” Taylor v. United States, 985 F.2d 844,
846 (6th Cir. 1993). These comments often come in one of two forms. The first form is “blunt
comments” about a cooperating witness’s credibility, United States v. Garcia, 758 F.3d 714, 723
(6th Cir. 2014) (citation omitted), where a prosecutor expresses a personal opinion about the
veracity of a witness’s testimony. See, e.g., United States v. Acosta, 924 F.3d 288, 299–300 (6th
Cir. 2019). Second, improper vouching often takes place when a prosecutor suggests he or she
“has special knowledge” or ability to evaluate the truthfulness of a witness’s testimony. Garcia,
758 F.3d at 723 (citation omitted). Both forms of vouching are inappropriate because they “plac[e]
the prestige of the office of the United States Attorney behind th[e] [cooperating] witness,” id. at
723 (quoting United States v. Trujillo, 376 F.3d 593, 607–08 (6th Cir. 2004)), and “inevitably give
jurors the [mistaken] impression that the prosecutor is carefully monitoring the testimony of the
cooperating witness to make sure that the [witness] is not stretching the facts—something the
prosecutor usually is quite unable to do,” United States v. Carroll, 26 F.3d 1380, 1388 (6th Cir.
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1994) (quoting United States v. Arroyo-Angulo, 580 F.2d 1137, 1150 (2d Cir. 1978) (Friendly, J.,
concurring)).
Fabode points to one comment that, in his mind, amounted to improper credibility
vouching. Fabode’s attorney, Mr. Shulman, made the following remark in his closing statement:
Now, all of these witnesses who were paraded before you by the
government who were involved in a conspiracy, . . . all of them entered agreements
with the government. They’ve all pled guilty to conspiracy, they’ve all given the
government an agreement that said they would come in and testify, all in hopes that
they would have their sentences reduced, and they’re all facing significant time in
prison pursuant to plea agreements, which are evidence, and you can look at those.
For the most part, most of them are going to be serving about seven years
in prison, and now they’re seeking to reduce their sentences, and although no
promises have been made to these people, they’ve all been told if you come in and
testify and your testimony’s helpful to us that we’ll write a memorandum to the
judge to have your sentence reduced.
I want you to think about that. I want you to think about the credibility of
the witnesses that you’ve heard in this case, all of them, and who has a reason to lie
or not be totally candid?
The prosecutor responded:
Mr. Shulman also talked about the cooperators in this case. He said that
they’re here, they’re motivated, they want to tell the story that the government
wants to hear so we can speak in their favor in reducing their sentences. All of
them testified that recommendation does not come unless their testimony is truthful.
And they were here to speak their truth, which is what they did. They’ve all
accepted responsibility for their actions, and they were here to tell you about the
truthful testimony they’ve given as to what their roles were in this conspiracy.
The prosecutor’s response did not rise to improper vouching. He never implied he had
some special ability to separate truth from untruth; he never implied, for example, that he would
decide whether the witnesses testified truthfully enough to earn a reduced sentence. And even
though the prosecutor’s closing statement passingly characterized certain testimony as “truthful,”
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this remark was less flagrant than the cases that reversed a conviction for “blunt comments” about
a cooperating witness’s credibility. Compare Acosta, 924 F.3d at 299–300 (finding improper
vouching where a prosecutor said a witness was “a fine young man” who “testified very well” and
“remembered everything”), with United States v. Reid, 625 F.3d 977, 984–85 (6th Cir. 2010) (no
improper vouching when a prosecutor passingly suggested a witness was a truthful person).
Furthermore, when defense counsel attacks the credibility of the government’s witnesses in his
closing arguments, as he did here, the government may “respond by arguing that those witnesses
should be believed.” United States v. Boyd, 640 F.3d 657, 671 (6th Cir. 2011) (citing Reid, 625
F.3d at 985).
Fabode’s second prosecutorial-misconduct argument fares no better. He says the
government’s closing argument “misstated the evidence” and “repeatedly referred to acts not in
evidence.” His brief cites two examples: (1) comments implying Fabode “trafficked in more than
200,000 doses of medication,” and (2) comments suggesting Fabode “took in well over a million
dollars from illicit [drug] sales.” But even if these comments misstated the evidence, the district
court cured any hypothetical error when it instructed the jury that “the lawyers’ statements and
arguments are not evidence.” United States v. Emuegbunam, 268 F.3d 377, 406 (6th Cir. 2001)
(explaining how such an instruction “generally cure[s] any improprieties in a closing argument”).
For his third and final prosecutorial-misconduct argument, Fabode accuses the government
of interfering with his Sixth Amendment right to call a critical witness in his favor. This argument
rests entirely on one witness: Olugbade Bolanle, Fabode’s former business partner and the co-
owner of Friendz Pharmacy. The government warned the district court that Bolanle could face
potential criminal exposure if he testified. The district court agreed with the government and
appointed counsel to advise Bolanle about “the possible implications of [his] testimony.”
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When the defense subpoenaed Bolanle for trial, Bolanle’s counsel appeared and advised
the district court that his client was “inevitably going to take the Fifth Amendment” and that there
was “no avenue of examination that . . . would be even remotely open for [his] client to answer
questions.” The district court quashed the defense’s subpoena and excused Bolanle from trial.
The district court explained that, with one minor exception, Bolanle’s Fifth Amendment privilege
would cover nearly every avenue of potential questioning.
While the Sixth Amendment affords criminal defendants the right to call favorable
witnesses, Washington v. Texas, 388 U.S. 14, 19 (1967), this right “may, in appropriate cases, bow
to accommodate other legitimate interests,” Rock v. Arkansas, 483 U.S. 44, 55 (1987) (quoting
Chambers v. Mississippi, 410 U.S. 284, 295 (1973)). One of those competing “legitimate
interests,” we have explained, is a witness’s “assertion of his Fifth Amendment privilege against
self incrimination.” United States v. Gaitan-Acevedo, 148 F.3d 577, 588 (6th Cir. 1998). It was
reasonable for the district court to appoint counsel for Bolanle, hold a hearing to evaluate his
potential criminal exposure, and make a specific finding that his privilege against self-
incrimination would cover nearly every relevant issue to which he could testify at trial. Thus, the
prosecution did not engage in misconduct, nor did it violate Fabode’s constitutional rights simply
by advising the district court that a potential witness faced criminal exposure if the defense
compelled him to testify.
Every case relied on by Fabode is distinguishable. Webb v. Texas, for instance, held that a
trial court deprived a criminal defendant of due process by directing a “lengthy,” “intimidating,”
and “threatening” warning at the defendant’s only witness. 409 U.S. 95, 97–98 (1972). But here
the district court never offered such an “unnecessarily strong” admonishment to Bolanle. Id. at
98. The court simply recognized his Fifth Amendment right against self-incrimination and then
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appointed counsel to advise him about his constitutional rights. The other cases Fabode cites, see
e.g., United States v. Morrison, 535 F.2d 223 (3d Cir. 1976), are even farther from the mark.
In a last-ditch effort to muddy the waters, Fabode says the government should have granted
use immunity to Bolanle because it would have removed any self-incrimination concerns, which,
in turn, would have allowed Fabode to call Bolanle as a defense witness. Grants of immunity,
however, are discretionary decisions left to the government. United States v. Lenz, 616 F.2d 960,
962 (6th Cir. 1980). And as we have previously explained, the Sixth Amendment right to call and
compel favorable witnesses does not “require[] the Government to exercise its statutory use-
immunity power affirmatively for a defendant’s benefit.” Id.Even if the statements and actions flagged by Fabode had amounted to prosecutorial
misconduct, none was flagrant enough to warrant a new trial. See United States v. Krebs, 788 F.2d
1166, 1177 (6th Cir. 1986) (“To warrant a new trial . . . prosecutorial misconduct ‘must be so
pronounced and persistent that it permeates the entire atmosphere of the trial.’” (quoting United
States v. Lichenstein, 610 F.2d 1272, 1281 (5th Cir. 1980))). The alleged prosecutorial misconduct
was isolated and infrequent, and, given the weight of testimonial and documentary evidence
presented against Fabode, it is highly unlikely that any of the abovementioned behavior prejudiced
him. See Emuegbunam, 268 F.3d at 404 (listing “the total strength of the evidence against the
accused” as a relevant factor in any prosecutorial-misconduct inquiry).
II
Next, Fabode takes issue with the district court’s decision to allow the government to
question him at trial about a prior investigation into drug-distribution practices at Friendz
Pharmacy. He believes the questioning ran afoul of Federal Rules of Evidence 404(b) (because it
was prior “bad act” evidence”) and 403 (because it was unduly prejudicial). We disagree. Even
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if the government’s investigation-related questioning could be taken for the propensity inference
prohibited by Rule 404(b), the questioning was still admissible and probative for at least two proper
purposes: it rebutted Fabode’s good-faith defense and impeached his credibility. Both of those
admissible purposes were relevant and material to Fabode’s trial, and the government’s questions
were sufficiently probative of those purposes to satisfy Rule 403’s balancing scheme.
Furthermore, the district court diminished the threat of any undue prejudice by prohibiting the
government from discussing the facts underlying the 2011 investigation. The district court also
issued two limiting instructions for the jury not to consider any prior-investigation evidence for
the “propensity” purpose prohibited by Rule 404(b). Given the limitations imposed by the district
court—how it restricted the scope of any investigation-related questioning and how it repeatedly
instructed the jury to not consider the evidence for an inadmissible propensity inference—we find
no abuse of discretion. See United States v. Vance, 871 F.2d 572, 576 (6th Cir. 1989) (“In
determining the admissibility of bad acts evidence under Rule 404(b), a trial judge is accorded
‘broad discretion.’”).
III
Fabode also challenges the district court’s drug-quantity calculation. The probation office
recommended the district court hold Fabode liable for a converted drug weight of 49,225.31kg,
which equates to the total number of Oxycodone 30mg and Oxymorphone 40mg pills sold at
Friendz Pharmacy during the conspiratorial period (January 2015 to March 2018). This converted
drug weight resulted in a base offense level of 36. USSG § 2D1.1(a)(5). After adding two points
because Fabode abused a position of public or private trust (pharmacist), USSG § 3B1.3, four
points because he “was an organizer or leader of a criminal activity that involved five or more
participants,” USSG § 3B1.1(a), and two points for obstruction of justice, USSG § 3C1.1, the
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report recommended a total offense level of 43. Fabode’s total offense level of 43, paired with a
criminal history category of two, yielded a guideline range of life imprisonment.
Luckily for Fabode, rather than holding him responsible for every Oxycodone 30mg and
Oxymorphone 40mg tablet sold at Friendz Pharmacy during the conspiratorial period, the district
court limited his liability to “prescriptions that he himself issued.” This resulted in a base offense
level of 34, which equates to a converted drug weight of 10,000–30,000kg. USSG § 2D1.1(c)(3).
The district court also declined to apply the four-point leadership enhancement and the two-point
obstruction-of-justice enhancement and reduced Fabode’s criminal history category from a two to
a one. All these decisions led to a significantly diminished guidelines range of 188–235 months.
But the district court’s leniency went even farther. The district court varied downward by roughly
50% because of its view that the guidelines range, though diminished, remained “much greater
than necessary to achieve” 18 U.S.C. § 3553(a)’s objectives.
Despite the district court’s leniency, Fabode says the court failed to adequately explain
how it arrived at its drug-quantity calculation (10,000–30,000kg). And he believes the district
court’s alleged overestimation resulted in an erroneously high guidelines range which in turn led
to a higher sentence.
We review a district court’s drug-quantity calculation for clear error. United States v.
Jeross, 521 F.3d 562, 570 (6th Cir. 2008). And we find clear error only when there’s no
“competent evidence in the record” to support the district court’s calculation. United States v.
Campbell, 317 F.3d 597, 604 (6th Cir. 2003) (citing United States v. Owusu, 199 F.3d 329, 338
(6th Cir. 2000)). So long as there is “some minimum indicium of reliability beyond mere
allegation” to support the district court’s calculation, we generally defer to the drug weight
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approximated by the finder of fact. United States v. Ward, 68 F.3d 146, 149 (6th Cir. 1995)
(quoting United States v. Smith, 887 F.2d 104, 108 (6th Cir. 1989)).
Given this highly deferential standard of review, we find no reversible error here because
there was more than “some minimum indicia of reliability” to support a converted drug weight of
10,000kg–30,000kg and a base offense level of 34. Friendz Pharmacy sold approximately 245,000
Oxycodone 30mg and Oxymorphone 40mg pills during the conspiratorial period, which translates
to a converted drug weight of 49,225kg. Friendz Pharmacy had two licensed pharmacists. So if
the district court split the converted weight—half for Fabode, half for the other pharmacist—it
could have reasonably concluded that Fabode sold a converted drug weight of roughly 24,612.5kg.
If roughly 40% of those sales were illicit, then the proper converted drug weight fell within what
is required for a base offense level of 34. And testimony could easily lead a reasonable sentencing
judge to believe that more than 40% of the Oxycodone and Oxymorphone pills sold by Fabode
were sold illegally. One doctor, after all, testified to having approximately 200 patients regularly
refill fraudulent opioid prescriptions, often at Friendz Pharmacy, and often by Fabode. We
recognize these numbers are estimations, but “[d]istrict courts may approximate the quantity of
drugs for sentencing purposes . . . as long as they err on the side of caution.” United States v.
Elder, 90 F.3d 1110, 1127 (6th Cir. 1996) (citation omitted).
Even if the district court erred in its drug-quantity calculation, and even if the error led to
an incorrect guidelines range, this is one of the “unusual circumstances” where an incorrect
guidelines calculation does not warrant a resentencing. Cf. Molina-Martinez v. United States, 578
U.S. 189, 201 (2016). The district court varied substantially from its guidelines calculation, and it
implied the guidelines had little influence on its sentencing decision. So we are satisfied that even
if the district court modestly overestimated the quantity of illicit drug sales attributable to Fabode,
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“a more lenient sentence would not be imposed” if we remanded the case for resentencing. United
States v. Alford, 436 F.3d 677, 683 (6th Cir. 2006). Remand would therefore be an exercise in
futility.
IV
Fabode also believes the district court impermissibly punished him for exercising his Sixth
Amendment right to trial by jury. This is so, he argues, because his coconspirators, all of whom
pleaded guilty, received substantially lower prison sentences than he received. But as we have
previously explained, “[m]ere disparity in sentences is insufficient” to show a sentencing judge
punished a defendant for exercising his right to trial by jury. United States v. Frost, 914 F.2d 756,
774 (6th Cir. 1990). Unlike Fabode, the other conspirators accepted responsibility for their actions.
Each of them cooperated with the government and assisted the government’s investigation. The
district court was free to recognize their cooperation and reward them for their contrition. United
States v. Stewart, 628 F.3d 246, 260 (6th Cir. 2010); USSG § 3E1.1 (allowing for a two-point
offense-level reduction if a defendant “clearly demonstrates acceptance of responsibility for his
offense”).
Fabode also claims his sentence undermines § 3553(a)(6), which instructs district courts
“to avoid unwarranted sentence disparities among defendants with similar records who have been
found guilty of similar conduct.” We have explained that § 3553(a)(6) refers to “national
disparities between defendants with similar criminal histories convicted of similar conduct—not
disparities between codefendants.” United States v. Bass, 17 F.4th 629, 636 (6th Cir. 2021)
(quoting United States v. Conatser, 514 F.3d 508, 521 (6th Cir. 2008)).
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V
Finally, Fabode argues that the Supreme Court’s recent decision in Ruan v. United States,
142 S. Ct. 2370 (2022), requires us to reverse Fabode’s convictions and order a new trial.
However, it does not.
The statute underlying Fabode’s convictions, 21 U.S.C. § 841(a), provides that it is
unlawful for any person, “except as authorized,” to “knowingly or intentionally” “manufacture,
distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled
substance.” Doctors and pharmacists regularly dispense controlled substances, so the “except as
authorized” clause is especially important when, like here, the government charged a medical
professional with improperly distributing prescription medication. According to federal
regulations, a prescription is authorized—and thus it lies outside § 841(a)’s prohibition—when it
is “issued for a legitimate medical purpose by an individual practitioner acting in the usual course
of his professional practice.” 21 C.F.R. § 1306.04(a). How to properly capture § 841(a)’s elements
in a jury instruction—especially the “except as authorized” proviso and the guidance provided by
§ 1306.04(a)—is a difficult question we have addressed before. See, e.g., United States v.
Godofsky, 943 F.3d 1011 (6th Cir. 2019); United States v. Volkman, 797 F.3d 377 (6th Cir. 2015).
In June 2022, more than two years after Fabode’s trial and approximately three weeks
before we held oral argument, the Supreme Court released its decision in Ruan, which sought to
clarify the debate surrounding § 841(a). The Supreme Court held, for the first time, that § 841(a)’s
“knowingly or intentionally” mens rea applies not only to the elements coming after the mens rea
standard (“manufacture, distribute, or dispense, or possess with intent to manufacture, distribute,
or dispense, a controlled substance”) but also to the “except as authorized” clause at the beginning
of the provision. Id. at 2375. In practice, this means the “except as authorized” clause works like
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an additional element: “[O]nce a defendant meets the burden of producing evidence that his or her
conduct was ‘authorized,’ the Government must prove beyond a reasonable doubt that the
defendant knowingly or intentionally acted in an unauthorized manner.” Id. at 2376. Stated
differently, if a defendant produces any evidence that he or she had statutory authorization to
dispense or distribute the controlled substances underlying his charges, then the prosecution must
show beyond a reasonable doubt “that the defendant knew that he or she was acting in an
unauthorized manner, or intended to do so.” Id. at 2375. The Supreme Court reiterated, however,
that circumstantial evidence and “objective criteria such as ‘legitimate medical purpose’ and ‘usual
course’ of ‘professional practice’” are often probative indicia of a defendant’s subjective
knowledge and intent. Id. at 2382.
Days after the Supreme Court released its decision in Ruan, we ordered the parties to
submit supplemental briefing “discussing what impact, if any,” the decision had on Fabode’s
appeal. Both parties submitted supplemental briefs, and we carefully reviewed their submissions.1
For his part, Fabode asserts the jury instructions at his trial failed to capture § 841(a)’s mens rea
requirement.
But we need not reach that question. This conclusion is motivated by the fact that Fabode
never asked the district court to issue a Ruan-like instruction. He never asked the district court to
instruct the jury that, to convict, it must find that he knowingly dispensed controlled substances
without authorization or that he did so intentionally. And he never objected to the § 841(a)
instruction given by the district court. Therefore, we review the correctness of the instruction,
including its compliance with Ruan, for plain error. Neder v. United States, 527 U.S. 1, 9 (1999);
1
Fabode’s attorney filed his brief one day late. He then moved this court to accept his untimely brief. (Doc.
50.) We GRANT that motion.
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see also Greer v. United States, 141 S. Ct. 2090, 2096 (2021) (applying plain error review when
defendant has “an opportunity to object,” fails to do so, and “later raises the forfeited claim on
appeal”).
Under plain error review, Fabode must show “a reasonable probability that, but for the
error, the outcome of the proceeding would have been different.” Greer, 141 S. Ct. at 2096.
Fabode cannot eclipse this high bar, as the evidence overwhelmingly demonstrated that he knew
he was acting in an unauthorized manner. For instance, at trial, codefendant Niesheia Tibu testified
that Fabode charged her more to fill prescriptions because she was a street dealer, and he knew she
could get more money selling the prescribed substances on the street. Tibu also testified that after
she was caught, she asked another pharmacist to warn Fabode not to fill any more of her
prescriptions. Detective Chad Allan testified at trial that his investigation uncovered numerous
ways that Fabode attempted to cover up his scheme using methods like data manipulation, pattern
prescribing, and slotting. And codefendant Dr. Vasan Deshikachar testified at trial that it would
be “obvious to other medical professionals” that Fabode’s scheme was illegitimate.
Given the overwhelming evidence in this case, Fabode cannot show a reasonable
probability that but for the district court’s failure to issue a jury instruction consistent with Ruan’s
mens rea holding, the outcome would have been different. Therefore, we find the Supreme Court’s
recent decision in Ruan does not require us to reverse Fabode’s conviction and order a new trial.
AFFIRMED.
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