United States v. Capistrano

Case: 21-10620 Document: 00516833401 Page: 1 Date Filed: 07/25/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
July 25, 2023
No. 21-10620
Lyle W. Cayce
____________ Clerk
United States of America,
Plaintiff—Appellee,
versus
Caesar Mark Capistrano; Ethel Oyekunle-Bubu;
Wilkinson Oloyede Thomas,
Defendants—Appellants.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:20-CR-290-4
USDC No. 4:20-CR-290-8
USDC No. 4:20-CR-290-5
______________________________
Before Higginbotham, Smith, and Engelhardt, Circuit Judges.
Patrick E. Higginbotham, Circuit Judge:
A jury convicted a medical doctor and two pharmacists of drug-related
crimes under the Controlled Substances Act for their roles in a pill-mill
operation. We AFFIRM.
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No. 21-10620
I.
A grand jury indicted Dr. Caesar Capistrano and two pharmacists,
Wilkinson Oloyede Thomas and Ethel Oyekunle-Bubu (“Bubu”),
(collectively, “Appellants” or “Defendants”) for roles in a “pill-mill”
operation. 1 Prosecutors charged Appellants with three drug-distribution
conspiracies that each spanned from 2011 to 2020. 2 Bubu and Thomas, who
both owned pharmacies, were also charged with possession with intent to
distribute controlled substances. 3
While Capistrano is a medical doctor, he also owned multiple clinics.
The Government’s theory was that he prescribed controlled substances and
Bubu and Thomas filled those prescriptions and others, on a host of
occasions, for which there was no legitimate medical purpose. The
conspiracy involved recruiters coordinating with pill mills and complicit
pharmacies to fill unlawful prescriptions for street-level distribution.
Recruits posed as patients, getting prescriptions issued in their names in
exchange for cash. The recruiters would then fill the recruits’ prescriptions
at complicit pharmacies, paying exclusively in cash. Charged with
drug-distribution conspiracies and with possessing with intent to distribute
controlled substances, 4 defendants invoked § 841(a) of the Controlled
Substances Act, which exempts doctors and pharmacists from criminal
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1
A “pill mill” is a colloquial term for a medical clinic in which practitioners
distribute controlled substances without “medical necessity or therapeutic benefit.” See
United States v. Lee, 966 F.3d 310, 317 (5th Cir. 2020) (describing a “pill mill” as a “a
medical practice that serves as a front for dealing prescription drugs”).
2
21 U.S.C. § 846.
3
21 U.S.C. § 841.
4
21 U.S.C. § 801 et seq.
2
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liability for distributing “authorized” controlled substances. 5 By regulation,
prescriptions are “authorized” if they are (1) “issued for a legitimate medical
purpose” and (2) “by an individual practitioner acting in the usual course of
his professional practice.” 6 At trial, the Government offered extensive
evidence, including text messages, wiretaps, surveillance, cooperator
testimony, and records from Defendants’ businesses and homes. The jury
found Defendants guilty on all counts. The district court sentenced
Capistrano and Bubu to 240 months’ imprisonment and Thomas to 151
months. Defendants timely appealed.
II.
We turn first to the standard of our review and then challenges to the
sufficiency of the evidence.
A.
“The standard of review for insufficiency-of-the-evidence claims
depends on whether the claims were preserved.” 7 As the three defendants
preserved their challenges to the sufficiency of the evidence against them by
motions filed at trial, our review is de novo. 8
Nonetheless, a “defendant seeking reversal on the basis of insufficient
evidence swims upstream.” 9 Our review is “highly deferential” to the jury’s
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5
21 U.S.C. § 841(a).
6
21 C.F.R. § 1306.04(a).
7
United States v. Suarez, 879 F.3d 626, 630 (5th Cir. 2018).
8
See United States v. Dailey, 868 F.3d 322, 327 (5th Cir. 2017) (citation omitted);
United States v. Zamora, 661 F.3d 200, 209 (5th Cir. 2011).
9
United States v. Gonzalez, 907 F.3d 869, 873 (5th Cir. 2018) (quoting United States
v. Mulderig, 120 F.3d 534, 546 (5th Cir. 1997)).
3
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finding of guilt.10 We will uphold the jury’s verdict so long as “any rational
trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” 11 A verdict can be supported by “reasonable inferences
from the evidence,” 12 but “may not rest on mere suspicion, speculation, or
conjecture, or on an overly attenuated piling of inference on inference.” 13
“Circumstances altogether inconclusive, if separately considered, may, by
their number and joint operation, especially when corroborated by moral
coincidences, be sufficient to constitute conclusive proof.” 14 “[T]he jury is
free to choose among reasonable constructions of the evidence.” 15
1.
Bubu challenges two counts of possession with intent to distribute
controlled substances in violation of 21 U.S.C. § 841(a)(1), 16 which requires
the Government to prove beyond a reasonable doubt that Bubu knowingly
possessed a controlled substance—here, Hydrocodone and Carisoprodol—
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10
United States v. Zamora-Salazar, 860 F.3d 826, 831 (5th Cir. 2017) (citation
omitted).
11
United States v. Vargas-Ocampo, 747 F.3d 299, 303 (5th Cir. 2014) (en banc)
(citation omitted). A “reasonable doubt” is “one ‘based on reason which arises from the
evidence or lack of evidence.’” Jackson v. Virginia, 443 U.S. 307, 317 n.9 (1979) (quoting
Johnson v. Louisiana, 406 U.S. 356, 360 (1972)).
12
United States v. Moreland, 665 F.3d 137, 149 (5th Cir. 2011) (quoting United States
v. Percel, 553 F.3d 903, 910 (5th Cir. 2008)).
13
Id. (quoting United States v. Rojas Alvarez, 451 F.3d 320, 333 (5th Cir. 2006)).
14
United States v. Rodriguez–Mireles, 896 F.2d 890, 892 (5th Cir. 1990) (quoting
The Reindeer, 69 U.S. 383, 401 (1864)) (alteration removed); see also Vargas-Ocampo, 747
F.3d at 303.
15
United States v. Pennington, 20 F.3d 593, 597 (5th Cir. 1994) (citations omitted).
16
One is for possessing with intent to distribute Hydrocodone to Cynthia Cooks,
and the other is for possessing with intent to distribute Carisoprodol to Johnnie Parks. The
challenges relate to Count 7 and Count 22 of the indictment, respectively.
4
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which she intended to distribute. 17 Bubu’s “[p]ossession may be actual or
constructive, may be joint among several defendants, and may be proved by
direct or circumstantial evidence.” 18 “Constructive possession is ‘the
knowing exercise of, or the knowing power or right to exercise, dominion and
control over the proscribed substance.’” 19
Bubu argues that there was “no evidence that [she] knew of the
particular medical conditions of Ms. Cooks and Mr. Parks.” The
Government counters that there was abundant evidence of Bubu’s
involvement with recruiters—including her instructing recruiters to
“remove [her] logo from vials” and leaving their recruits in the car, as having
so many people in the area was a bad look—as well as other “numerous red
flags” about Bubu’s pharmacy operations, including only accepting cash and
charging unusually high prices for controlled substances, priced per pill
rather than by a typical prescription quantity.
While § 841 does not require that Bubu knew the patients’ medical
conditions, there must be sufficient evidence that Bubu knew the
prescriptions she filled for Cooks and Parks were unauthorized. 20 Bubu
concedes that she “knew some of the prescriptions emanating from Dr.
Capistrano’s clinic were invalid.” Cooks was one of Capistrano’s recruiters
who filled her and her recruits’ prescriptions at Bubu’s pharmacy. 21 Bubu
filled Cooks’s Hydrocodone prescription from Capistrano for the highest
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17
United States v. Delgado, 256 F.3d 264, 274 (5th Cir. 2001).
18
United States v. Valdiosera–Godinez, 932 F.2d 1093, 1095 (5th Cir. 1991) (quoting
United States v. Gardea Carrasco, 830 F.2d 41, 45 (5th Cir. 1987)).
19
Id. at 1096 (quoting Gardea Carrasco, 830 F.2d at 45).
20
See United States v. Ferris, 52 F.4th 235, 242–43 (5th Cir. 2022).
21
Cooks pleaded guilty to drug conspiracy in this case.
5
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possible prescription strength. Cooks testified that she directly interacted
with Bubu, including phone calls. Parks was one of Cooks’s recruits, and
Cooks filled his prescriptions at Bubu’s pharmacy. Bubu’s dispense log,
signed by Bubu, shows that Bubu filled Parks’s and another one of Cooks’s
recruit’s prescriptions from Capistrano for controlled substances.
In sum, given the evidence of Bubu’s knowledge of Capistrano’s
clinic’s practices and her involvement with recruiters, “a rational trier of fact
could have found the elements of the crime beyond a reasonable doubt.” 22
2.
Thomas argues that the evidence cannot show he knew any
prescriptions were “invalid,” and both Thomas and the Government point
to “red flags.” 23 We turn to the evidence, asking whether a rational jury
could find beyond a reasonable doubt that Thomas knew the prescriptions
were unauthorized. 24
The testimony of recruiter Wayne Kincade, and his text messages
with Thomas, played a prominent role in the Government’s case. Kincade
started using Thomas’s pharmacy to fill his recruits’ prescriptions after
another recruiter recommended the pharmacy. Kincade told Thomas he was
picking up other people’s prescriptions because they did not want to drive to
the pharmacy. Kincade regularly texted and called Thomas about
prescriptions and sent pictures of recruit’s IDs if needed. Kincade testified
that Thomas operated “by the book,” but also that Thomas “fronted”
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22
Dailey, 868 F.3d at 327 (citation omitted).
23
Yet to overcome the medical defense, the appropriate inquiry is not about red
flags, but about knowledge.
24
See Vargas-Ocampo, 747 F.3d at 303; Ferris, 52 F.4th at 242–43.
6
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Kincade prescriptions—once more than $1,000 worth—because Thomas
trusted that he would pay for the drugs later.
Kincade paid for the prescriptions in cash—three or four at a time for
$265 each—sometimes outside of business hours. When Kincade tried to fill
more prescriptions each time, Thomas told him it was best to space them out
so he would fill some now and the rest the next day. Thomas warned Kincade
to “be careful cashing those Capistrano prescriptions because he [is] in the
black book.” Thomas’s pharmacy stopped accepting Capistrano’s
prescriptions but still filled prescriptions from Dr. Noel, another defendant
who pleaded guilty. Kincade never told Thomas he sold drugs or suggested
that he was breaking the law, but Kincade affirmed that, like everyone else
involved in the conspiracy, Thomas “knew what [he] was doing.”
Thomas argues that Kincade’s statement that Thomas “wasn’t like
some of the other pharmacists” and was “by the book” means “it was clear
to Mr. Kincade that Mr. Thomas was not a party to a pill mill case.” But this
view is not the only one fairly drawn from Kincade’s testimony that Thomas
“knew what [he] was doing.” While Thomas imposed some requirements on
filling other people’s prescriptions, a reasonable jury could infer that Thomas
was trying to cover himself, as the Government argued. We may not reweigh
the evidence, or second-guess “[c]redibility choices that support the jury’s
verdict.” 25 Juries are “entitled to weigh . . . circumstantial evidence, drawing
inferences for or against [a defendant’s] knowing and voluntary participation
in a conspiracy with others.” 26 Where, as here, there are multiple reasonable
constructions of the evidence, “the jury is free to choose among [them].” 27
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25
Zamora-Salazar, 860 F.3d at 832 (citation omitted).
26
Vargas-Ocampo, 747 F.3d at 303.
27
Pennington, 20 F.3d at 597 (citations omitted). Thomas argues that a reasonable
jury cannot find a defendant guilty beyond a reasonable doubt if the “evidence gives equal
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“[T]he ‘relevant question is whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.’” 28
Considered in the requisite light, the evidence was sufficient for a rational
juror to find the requisite mens rea here.
3.
To sustain a conviction for conspiracy under 21 U.S.C. § 846, the
Government must prove beyond a reasonable doubt “(1) an agreement
between two or more persons to violate the narcotics laws, (2) the
defendant’s knowledge of the agreement, and (3) the defendant’s voluntary
participation in the conspiracy.” 29
Capistrano argues he cannot be convicted of conspiracy because there
was no record that he “had any contact, of any type whatsoever,” with the
pharmacists. Capistrano also argues that there was “no testimony
whatsoever that [he] said []or did anything.” The Government counters that
there was abundant evidence of a conspiracy, and Capistrano’s involvement
with it as well—including Capistrano instructing individuals to issue
prescriptions when he was not there, and prescribing significant quantities of
Alprazolam, Carisoprodol, and Hydrocodone, which accounted for 99.7% of
his prescriptions—as well as other actions with respect to Capistrano’s
operations. We have long held that “all members of a conspiracy are not
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or nearly equal circumstantial support to a theory of guilt, as well as a theory of innocence.”
Moreland, 665 F.3d at 149. But this Court “abandon[ed] any reliance on the ‘equipoise
rule’” in Vargas-Ocampo. 747 F.3d at 302.
28
United States v. Xu, 599 F.3d 452, 453 (5th Cir. 2010) (quoting United States v.
Valle, 538 F.3d 341, 344 (5th Cir. 2008)).
29
Zamora, 661 F.3d at 209 (quoting United States v. Booker, 334 F.3d 406, 409 (5th
Cir. 2003)).
8
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required to know every other member for a conspiracy to exist.” 30 Given the
attendant record, Capistrano’s claim falls short.
B.
In sum, our highly deferential review compels us to conclude that
“‘the totality of the evidence permits a conclusion of guilt beyond a
reasonable doubt’” for all Appellants on all challenged claims. 31
III.
Bubu and Capistrano challenge the jury instructions given at trial. The
challenges fail.
A.
Generally, “this court reviews jury instructions for abuse of discretion
and harmless error.” 32 “However, when a defendant fails to object to jury
instructions, we review for plain error.” 33 Since neither Bubu nor Capistrano
objected to the jury instructions, we review for plain error. 34
To establish plain error, one must show that: “(1) the district court
erred, (2) the error was clear or obvious, (3) the error affected his substantial
rights, and (4) this court should exercise its discretion to correct the error
because the error seriously affects the fairness, integrity, or public reputation
_____________________
30
Gonzalez, 907 F.3d at 874 (citing United States v. Bolts, 558 F.2d 316, 325 (5th
Cir. 1977)).
31
United States v. Nieto, 721 F.3d 357, 365 (5th Cir. 2013) (quoting United States v.
Hicks, 389 F.3d 514, 533 (5th Cir. 2004)).
32
United States v. Vasquez, 677 F.3d 685, 692 (5th Cir. 2012) (per curiam) (citing
United States v. Betancourt, 586 F.3d 303, 305 (5th Cir. 2009)).
33
Id.34
See United States v. Nagin, 810 F.3d 348, 350 (5th Cir. 2016).
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of judicial proceedings.” 35 By the metric of plain error review of jury
instructions, a district court does not err when “the instruction, taken as a
whole, is a correct statement of the law.” 36 “[W]hen a jury instruction omits
. . . an essential element of an offense, the error may be severe enough to meet
the plain-error standard.” 37 When reviewing a jury instruction, we must
“consider the jury charge as a whole” and reverse only if the entire charge
leaves us “with the substantial and ineradicable doubt whether the jury has
been properly guided in its deliberations.” 38 In other words, to amount to
plain error, the instruction “must ‘have meant the difference between
acquittal and conviction.’” 39
After Appellants filed their initial briefs, the Supreme Court issued
Ruan v. United States. 40 Ruan addresses the state of mind requirement to
convict doctors under the Controlled Substances Act. 41 In Ruan, the
Supreme Court overturned the convictions of two doctors for violating 21
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35
In re Deepwater Horizon, 824 F.3d 571, 583 (5th Cir. 2016) (citation omitted).
36
Nagin, 810 F.3d at 350 (quoting United States v. Ebron, 683 F.3d 105, 151–52 (5th
Cir. 2012)).
37
United States v. Vasquez, 899 F.3d 363, 378 (5th Cir. 2018) (first alteration in
original), as revised (Aug. 24, 2018) (quoting United States v. Fairley, 880 F.3d 198, 208 (5th
Cir. 2018)).
38
Septimus v. Univ. of Hous., 399 F.3d 601, 607 (5th Cir. 2005) (internal quotations
omitted).
39
Vasquez, 899 F.3d at 378 (quoting Fairley, 880 F.3d at 208). This is because the
party must show that their substantial rights were affected, and to establish that one’s
substantial rights were affected, defendants bear the burden of showing a reasonable
probability that absent the error, they would have been acquitted. See United States v. Oti,
872 F.3d 678, 693 (5th Cir. 2017).
40
142 S. Ct. 2370 (2022). The Government’s brief and Bubu and Capistrano’s
reply briefs address Ruan. Thomas does not address Ruan.
41
Id. at 2375.
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U.S.C. § 841(a)(1), which makes it a federal crime, “[e]xcept as authorized .
. . for any person knowingly or intentionally . . . to manufacture, distribute, or
dispense . . . a controlled substance.” 42 Although the defendants could
prescribe such substances to their patients, prescriptions are authorized only
when a doctor issued it “for a legitimate medical purpose . . . acting in the
usual course of his professional practice.” 43 The specific question at issue
was whether it was “sufficient for the Government to prove that a
prescription was in fact not authorized,” or whether the Government must
also “prove that the doctor knew or intended that the prescription was
unauthorized.” 44 The Court held that “the statute’s ‘knowingly or
intentionally’ mens rea applies to authorization.” 45 So, “[a]fter a defendant
produces evidence that he or she was authorized to dispense controlled
substances, the Government must prove beyond a reasonable doubt that the
defendant knew that he or she was acting in an unauthorized manner, or
intended to do so.” 46
This Court then decided United States v. Ferris, which applied Ruan
to pharmacist violations of § 841. 47 Emphasizing that it is the unauthorized
nature of prescriptions that renders conduct wrongful, not the dispensation
itself, this Court held that the Government must prove that a pharmacist
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42
21 U.S.C. § 841(a)(1) (emphasis added).
43
21 C.F.R. § 1306.04(a).
44
Ruan, 142 S. Ct. at 2375.
45
Id.
46
Id.
47
52 F.4th at 242–43. Ferris was decided two days after Bubu submitted her Reply
Brief. This Court allowed Bubu, Capistrano, and the Government to file supplemental
briefs addressing Ferris’s impact on this case.
11
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“knowingly or intentionally filled unauthorized prescriptions for a
patient.” 48
1.
Bubu raises two challenges regarding the jury instruction. We address
each in turn.
First, Bubu challenges the district court’s use of “or” rather than
“and” in instructing the jury when a prescription is unauthorized. Section
841 makes it unlawful, “[e]xcept as authorized[,] . . . for any person
knowingly or intentionally . . . to manufacture, distribute, or dispense . . . a
controlled substance.” 49 A two-pronged definition provides that
prescriptions for controlled substances are authorized if they are (1) “issued
for a legitimate medical purpose” and (2) “by an individual practitioner
acting in the usual course of his professional practice.” 50 Bubu argues that
the district court erred in instructing the jury that “it could convict upon a
finding that she acted either without legitimate medical purpose or outside the
usual practice of medicine, measured objectively.” 51
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48
Id. at 243.
49
21 U.S.C. § 841(a)(1).
50
21 C.F.R. § 1306.04. In United States v. Armstrong, we held that because “[b]oth
prongs are necessary for a prescription to be legitimate[,] . . . a practitioner is unauthorized
to dispense a controlled substance if the prescription either lacks a legitimate medical
purpose or is outside the usual course of professional practice.” 550 F.3d 382, 397 (5th Cir.
2008).
51
Bubu’s opening brief argues that the “‘knowing and intentional’ language of
§ 841 applies” to both prongs, and that convictions require both prongs. However, Bubu
conceded this argument was foreclosed by Armstrong. See Armstrong, 550 F.3d at 397 (“[A]
practitioner is unauthorized to dispense a controlled substance if the prescription either
lacks a legitimate medical purpose or is outside the usual course of professional practice.”
(emphasis removed)). In the interim, the Supreme Court decided Ruan, and Bubu’s reply
brief urges that intervening decision “fully vindicates” her argument. We do not see it that
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The district court’s jury instructions incorrectly stated the law by
omitting the mens rea element. 52 This satisfies the first two prongs of the plain
error test. 53 That said, we find that this error does not warrant a plain error
reversal. While it is true the district court erred, and that error was clear, “an
instruction that omits an element of the offense does not necessarily render
a criminal trial fundamentally unfair or an unreliable vehicle for determining
guilt or innocence.” 54 To justify reversal on plain error review, Bubu must
show that the error affected her substantial rights. 55 “‘As a general rule, an
error affects a defendant’s substantial rights only if the error was
prejudicial.’” 56 “‘Error is prejudicial if there is a reasonable probability that
the result of the proceedings would have been different but for the error.’” 57
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way. Ruan held that “§ 841’s ‘knowingly or intentionally’ mens rea applies to the ‘except
as authorized’ clause.” 142 S. Ct. at 2376. The decision does not require that both prongs
of authorization be lacking, which Bubu appears to recognize in her reply. Accordingly, a
defendant can be convicted either for knowing prescriptions were issued for an illegitimate
purpose or knowing they were dispensed outside the usual course of professional practice.
We view Ruan as ridding the Government of the option—previously accepted under
Armstrong—that a defendant can be convicted without knowledge for distributing
prescriptions outside the objectively usual course of professional practice. 550 F.3d at 397.
52
See Neder v. United States, 527 U.S. 1, 12 (1999); Nagin, 810 F.3d at 350–51; see
also Henderson v. United States, 568 U.S. 266, 279 (2013) (holding second prong of plain
error review considers the law as clarified during time of appeal); United States v. Kahn, 58
F.4th 1308, 1316 (10th Cir. 2023) (“Ruan expressly disallows conviction under § 841(a)(1)
for behavior that is only objectively unauthorized. The [G]overnment must prove that a
defendant ‘knowingly or intentionally acted in an unauthorized manner.’” (quoting Ruan,
142 S. Ct. at 2376)).
53
See In re Deepwater Horizon, 824 F.3d at 583 (“[T]he district court erred [and]
the error was clear or obvious.”).
54
Neder, 527 U.S. at 9.
55
Vasquez, 677 F.3d at 693.
56
United States v. Johnson, 943 F.3d 214, 223 (5th Cir. 2019) (cleaned up) (quoting
United States v. Gonzalez-Rodriguez, 621 F.3d 354, 363 (5th Cir. 2010)).
57
Id. (quoting Gonzalez-Rodriguez, 621 F.3d at 363).
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In other words, the likelihood of a different result must be enough to
undermine confidence in the outcome of the proceedings. 58 Bubu fails to
make this showing.
Bubu’s failure to meaningfully address the third and fourth prongs of
the plain error test either in her opening brief or in reply undermines her
challenge. 59 Bubu’s initial brief does not argue that but for the error, there
would be a reasonable probability she would be acquitted. Bubu even
“assume[s] for the purpose of [substantial rights] that the [G]overnment
presented sufficient evidence for a jury to find the defendant’s guilty
knowledge under the correct standard,” but that because of the error, Bubu
did not have a chance to defend herself. 60
Bubu’s concession shows that she did have the “chance to defend
herself”—the opportunity to present evidence that could have raised doubts
about her knowledge. 61 Additionally, the record shows that Bubu’s counsel
spent substantial time arguing that Bubu did not knowingly commit a crime.
Because Bubu failed to argue that but for the incorrect jury instruction there
was a reasonable probability that she would have been acquitted, she does not
satisfy the plain error test. Accordingly, although the district court erred—
based on an intervening Supreme Court case it could not know about at the
time—in instructing the jury, such error does warrant reversal.
_____________________
58
United States v. Holmes, 406 F.3d 337, 365 (5th Cir. 2005) (citing United States v.
Dominguez Benitez, 542 U.S. 74, 81 (2004)).
59
Bubu addresses the third and fourth prongs in only six sentences.
60
In support, Bubu cites her procedural history section, which includes a four-page
discussion of the evidence the Government introduced to establish knowledge and a single
paragraph noting that “some evidence tended to raise doubts about [Bubu’s] knowledge.”
61
We note that the two pieces of evidence Bubu points to “to raise doubts” are (1)
a codefendant’s witness’s testimony and (2) testimony from a Government’s witnesses.
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Bubu’s second challenge argues the district court erred by “tethering
the pharmacist’s criminal liability to a doctor’s misconduct.” She argues that
the instructions exclusively address doctors’ practices and not pharmacists’
practices and that any doctor’s unauthorized act—whether known or
unknown by the doctor or pharmacist—could be imputed to a pharmacist.
We conclude that reasonable minds can differ as to whether the instructions
impute doctors’ misconduct to pharmacists, as the instructions simply ask
the jury to consider each defendant’s “usual course of professional
practice.” “[L]egal error must be clear or obvious, rather than subject to
reasonable dispute.” 62 This was not.
2.
Capistrano raises three jury-instruction challenges. First, Capistrano
challenges the instruction given by the district court. The written jury charge
correctly instructed the jury to determine whether the controlled substances
were “(1) prescribed for what the defendant subjectively considered to be a
legitimate medical purpose.” However, at trial, the district court misread the
charge, telling the jurors to consider objectively legitimate medical purposes.
Capistrano contends this warrants reversal.
To be sure, we have recognized the problematic nature of inconsistent
jury instructions. 63 And we have found reversible error when written
instructions were contradictory on an issue that neither party addressed
during closing argument. 64 But when reviewing jury instructions, we “rarely
_____________________
62
See Puckett v. United States, 556 U.S. 129, 135 (2009).
63
Aero Int’l, Inc. v. U.S. Fire Ins. Co., 713 F.2d 1106, 1113 (5th Cir. 1983) (noting
that “it is impossible after verdict to ascertain which instruction the jury followed”
(internal quotation omitted)).
64
Nowell ex rel. Nowell v. Universal Elec. Co., 792 F.2d 1310, 1316–17 (5th Cir. 1986).
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will reverse a conviction based on a district court’s insignificant slip of the
tongue.” 65 A “district court’s apparent mistake [is] sufficiently remedied to
render any resulting error harmless” when the jury is given a copy of the
instruction, in which “[t]he contradictory, erroneous statement is nowhere
to be found.” 66 “[T]he proper inquiry is not whether the instruction ‘could
have’ been applied in an unconstitutional manner, but whether there is a
reasonable likelihood that the jury did so apply it.” 67
Here, not only was there no error in the written instructions, the
parties also spent extensive time discussing the subjective knowledge
requirement during closing arguments. 68 Even though the district court
misspoke, when “consider[ing] the instructions as a whole, the evidence
presented, and the arguments of counsel[,]” we do not believe this error is
“so fundamental as to result in a miscarriage of justice.” 69 Accordingly, we
find there was no reversible error. 70
_____________________
65
United States v. Phipps, 319 F.3d 177, 190 (5th Cir. 2003) (finding no reversible
plain error where one reference was made to proof by a preponderance of the evidence).
66
United States v. Sanders, 70 F.3d 1268 (5th Cir. 1995) (unpublished) (per curiam).
In that event, “the district court’s ‘slip of the tongue,’ [is] cured by the straightforward
and accurate statement of the applicable law subsequently furnished in writing to the
jurors” and “d[oes] not constitute reversible error.” Id.; see also Phipps, 319 F.3d at 190(holding that a judge’s “single slip of the tongue” in mentioning in one count the
preponderance-of-the-evidence standard instead of the beyond-a-reasonable-doubt
standard in the jury instructions was not plain error).
67
Phipps, 319 F.3d at 190 (quoting Victor v. Nebraska, 511 U.S. 1, 6 (1994)).
68
See United States v. Musgrave, 483 F.2d 327, 335 (5th Cir. 1973) (affirming a
conviction despite a slip of the tongue, because the “[i]solated statements which appear
prejudicial when taken out of context [were] innocuous when viewed in the light of the
entire trial”).
69
Nowell, 792 F.2d at 1316.
70
See Vaccaro v. United States, 461 F.2d 626, 636 (5th Cir. 1972) (noting the
“numerous cases in which convictions have been upheld despite erroneous instructions”
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Second, like Bubu, Capistrano challenges the district court’s use of
“or” rather than “and” in instructing the jury when a prescription is
unauthorized. Unlike Bubu, however, Capistrano does not argue that the
knowledge requirement applies to both authorization prongs. Rather, like
Bubu, Capistrano argues that both prongs must be satisfied. Because the
Government need not prove both prongs, Capistrano fails to establish plain
error.
Lastly, Capistrano argues that “the trial court did not clearly explain
nor adequately define to the jury what good faith means.” The district
court’s jury instructions make no mention of good faith. However, good faith
is not a required element of the offense. 71 Capistrano fails to show any error,
plain or otherwise. 72
B.
In sum, neither Bubu nor Capistrano have shown that any errors
affected their substantial rights or that we should exercise our discretion to
correct any such errors. 73 We reject Bubu and Capistrano’s arguments that
we must vacate their convictions because of the jury instructions.
_____________________
when it was confidently declared that the instructions “did not contribute to the verdict of
guilt”).
71
Cf. United States v. Rodriguez-Escareno, 700 F.3d 751, 753 (5th Cir. 2012) (“The
first step in plain-error review is to determine whether there was error.”).
72
See Nagin, 810 F.3d at 350–51.
73
See United States v. Broussard, 669 F.3d 537, 553 (5th Cir. 2012) (“To affect the
defendant’s substantial rights, the defendant must demonstrate that the error affected the
outcome of the district court proceedings.”); United States v. Escalante-Reyes, 689 F.3d 415,
425 (5th Cir. 2012) (“Additionally, we do not view the fourth prong as automatic if the
other three prongs are met.”).
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IV.
We next address Bubu’s other claims. Her challenges all fail.
A.
Bubu contends that the district court deprived her of her
constitutional right to counsel at a critical stage of the proceeding—during
sentencing—by allowing her to proceed pro se without a clear and
unequivocal waiver. 74 “Sixth Amendment challenges to the validity of a
waiver of counsel are reviewed de novo.” 75 To determine whether the district
court violated Bubu’s right to counsel, we ask whether Bubu properly waived
her right to counsel and whether the waiver was knowing and intelligent. 76
1.
A criminal defendant, by virtue of the Sixth Amendment, has the right
to counsel at trial. 77 The right extends to the sentencing phase just as
forcefully as to the guilt phase. 78 “Where a fundamental constitutional right,
such as the right to counsel, is concerned, courts indulge every reasonable
presumption against waiver.” 79 Without a clear election to forgo counsel, “‘a
court should not quickly infer that a defendant unskilled in the law has waived
_____________________
74
The parties do not dispute that sentencing is a critical stage in which defendants
are entitled to be represented by counsel. See United States v. Taylor, 933 F.2d 307, 312–13
(5th Cir. 1991).
75
United States v. Mesquiti, 854 F.3d 267, 271 (5th Cir. 2017) (citation omitted).
76
Id. at 271–72.
77
See Taylor, 933 F.2d at 312.
78
Tucker v. Day, 969 F.2d 155, 159 (5th Cir. 1992) (citing Taylor, 933 F.2d at 312).
79
Mesquiti, 854 F.3d at 272 (quoting United States v. Cano, 519 F.3d 512, 517 (5th
Cir. 2008)).
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counsel and has opted to conduct his own defense.’” 80 Defendants “can
waive [their] right to counsel implicitly, by [their] clear conduct, as well as by
[their] express statement.” 81 Further, defendants’ “‘refusal without good
cause to proceed with able appointed counsel constitutes a voluntary waiver
of’ the right to counsel.” 82 “To constitute waiver, such a refusal must take
the form of ‘a persistent, unreasonable demand for dismissal of counsel.’” 83
But the right is not limitless. Applied here, a criminal defendant is not
entitled to a particular counsel, just a competent one. 84 As we have described
this right previously, “‘[a] defendant is entitled to counsel capable of
rendering competent, meaningful assistance. . . . No defendant has a right to
more.’” 85
The issue regarding Bubu’s representation was no minor dispute, but
instead a continuous and long-running issue. At sentencing, Bubu repeatedly
stated she did not want her current attorney, J. Stephen Cooper, to represent
her. Bubu did not like the attorney previously appointed to her, so the district
court allowed Bubu to hire Cooper, who was Bubu’s fourth attorney. The
district court then instructed Bubu: “he is either going to be your lawyer, or
you’re going to proceed pro se.” Cooper explained there was “some conflict”
_____________________
80
Burton v. Collins, 937 F.2d 131, 133 (5th Cir. 1991) (quoting Brown v. Wainwright,
665 F.2d 607, 610 (5th Cir. 1982)).
81
Mesquiti, 854 F.3d at 272 (citation omitted).
82
Id. (quoting United States v. Fields, 483 F.3d 313, 350 (5th Cir. 2007)).
83
Id. (quoting United States v. Moore, 706 F.2d 538, 540 (5th Cir. 1983)).
84
Moore, 706 F.2d at 540; see also Richardson v. Lucas, 741 F.2d 753, 756 (5th Cir.
1984) (“Although the sixth amendment’s right to counsel in criminal cases is absolute, an
accused’s right to a particular counsel is not.”).
85
McQueen v. Blackburn, 755 F.2d 1174, 1178 (5th Cir. 1985) (quoting Moore, 706
F.2d at 540).
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between Cooper and Bubu and that Bubu refused to talk to him. 86 The district
court instructed Cooper to discuss the PSR and the dangers of self-
representation with Bubu. After a 47-minute break, Cooper reported that
Bubu refused to look at any documentation with him and when he spoke
about the dangers of self-representation, she turned her back to him and said:
“I’m representing myself.” Bubu told the district court she wanted a
different lawyer to represent her. The district court spoke with the attorney
Bubu wanted, who said he had not yet been retained to represent Bubu and
that it would “not be feasible” to represent her at that time. The Government
objected to Bubu bringing on a fifth attorney because “it seem[ed] like . . . a
delay tactic” since Bubu had received “competent representation from her
first lawyer through her fourth lawyer.” The district court agreed and, not
wanting to keep delaying sentencing and recognizing Bubu’s “pattern” of
“refus[ing] to talk to [her] attorneys[,]” denied Bubu’s request to fire
Cooper and hire new counsel.
When asked if she desired to represent herself, Bubu responded “No”
but also insisted that Cooper could not represent her. When told she had to
choose between two options: either Cooper representing her or representing
herself, Bubu refused to answer the question, reiterating: “I want new
counsel.” After more back and forth, the district court concluded: “you’ve
made clear that you do not want Mr. Cooper to represent you in this case . . .
So that means, ma’am, you are going to represent yourself.” The district
court proceeded, then Bubu interjected to say: “I cannot represent myself
right now, sir.” The district court asked Bubu to not interrupt him, and Bubu
again said, “I cannot represent myself.” The district court asked if she
_____________________
86
Cooper claims Bubu asked him to withdraw but refused to sign a motion to
withdraw. Bubu claims there is “no record” that she spoke to Cooper and asked him to
withdraw.
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wanted Cooper to come back, which she eventually agreed to. Cooper
returned and argued that Bubu “needs some credit for an exemplary life prior
to this event,” asked for a minimum guidelines sentence, and introduced
Bubu’s children to speak on her behalf.
Bubu’s conduct—which she concedes was “frustrating”—waived
counsel. Bubu persistently and unreasonably demanded that her counsel be
dismissed. After having already dismissed multiple attorneys and refusing to
cooperate and communicate with Cooper—and even turning her back to
him—she insisted she would represent herself. Although Bubu never told the
court she wished to represent herself, her actions relinquished her right to
counsel. 87 Bubu does not argue that she had good cause to not proceed with
Cooper. 88 And we have long-held that “[a] defendant’s refusal without good
cause to proceed with able appointed counsel constitutes a voluntary” decision
to proceed pro se. 89 We find Bubu’s actions as a voluntary waiver of the right
to counsel.
2.
While Bubu may have voluntarily waived the right to counsel, we must
next ask if it was done knowingly and intelligently. 90 Defendants must “be
_____________________
87
See Mesquiti, 854 F.3d at 274 (“Mesquiti stated, ‘I don’t accept [current counsel]
as my lawyer and I don’t consent to these proceedings.’”).
88
See United States v. Simpson, 645 F.3d 300, 308 (5th Cir. 2011) (holding a
defendant does not have “good cause” to appoint substitute counsel where the defendant
refused to communicate with his attorney).
89
United States v. Romans, 823 F.3d 299, 313 (5th Cir. 2016) (emphasis added)
(quoting Dunn v. Johnson, 162 F.3d 302, 307 (5th Cir. 1998)); see also In re Hipp, Inc., 5 F.3d
109, 114–15 (5th Cir. 1993).
90
To be sure, the waivable right to counsel does not force a requirement of counsel
on an unwilling criminal defendant. Faretta v. California, 422 U.S. 806, 819, 833–35 (1975).
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made aware of the dangers and disadvantages of self-representation.” 91 We
require “district courts to exercise discretion in determining the precise
nature of the warning provided to a defendant seeking to represent himself,
depending on the circumstances of the individual case.” 92 “Although . . . the
precise nature of appropriate warnings depends on the particularities of the
case, we have generally required trial courts to provide warnings of
substance, including at least a modicum of specificity.” 93
Bubu argues that even if she waived her right to counsel, it was not a
knowingly and intelligent choice because the court did not advise her that
repeatedly requesting a new lawyer or asking for a continuance would result
in immediate self-representation. The record shows otherwise.
The district court told Bubu, “I am not continuing the case any longer.
And so that means today, you can represent yourself . . . or you can be
represented by Mr. Cooper.” The sentencing transcript reveals the district
court repeatedly advised Bubu against self-representation and of the
disadvantages of self-representation. For example, the district court
cautioned Bubu: “I’m going to advise you that, in my opinion, you will be far
better off remaining with your retained attorney, Mr. Cooper. I think it is
unwise of you to try to represent yourself.” The district court even instructed
_____________________
A defendant may only relinquish this right, however, if it is knowingly and intelligently. Id.
at 835; see also Mesquiti, 854 F.3d at 272 (quoting Tovar, 541 U.S. at 81).
91
Faretta, 422 U.S. at 835 (citation omitted).
92
Mesquiti, 854 F.3d at 272–73 (citation omitted). “The trial court must consider
various factors, including ‘the defendant’s age and education and other background,
experience, and conduct.’” Id. at 273 (quoting McQueen, 755 F.2d at 1177).
93
Id. at 273. “The court must ensure that the waiver is not the result of coercion
or mistreatment of the defendant and must be satisfied that the accused understands the
nature of the charges, the consequences of the proceedings, and the practical meaning of
the right [being waived].” Id. (quoting McQueen, 755 F.2d at 1177).
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Cooper to discuss “dangers and disadvantages” of self-representation with
Bubu. Bubu argues that the court should have to warn defendants that their
conduct could result in self-representation. While sometimes district courts
do this, 94 we have never imposed such a requirement 95 and we decline to do
so today. Given the district court’s multiple warnings and attempts to reason
with Bubu, we hold Bubu knowingly and voluntarily waived her right to
counsel.
B.
Bubu challenges the district court’s refusal to grant a continuance. “A
district court’s denial of a continuance is reviewed for abuse of discretion.” 96
“Trial judges have ‘broad discretion’ in ruling on motions for a
continuance.” 97 “[T]he movant must show that the denial resulted in
specific and compelling or serious prejudice.” 98 “This is true even where the
denial of the continuance will shorten the amount of time available for
preparation of the defendant’s case.” 99 “In review, we evaluate each
situation on a case-by-case basis and normally consider only the reasons for
continuance presented to the trial judge.” 100 To establish that denying a
_____________________
94
See Moore, 706 F.2d at 539 (noting the court warned it was “highly likely” that
the defendant’s “failure . . . to cooperate with [his attorney] in preparation of his case will
be construed . . . as a waiver of his right to counsel”).
95
See generally, e.g., Mesquiti, 854 F.3d at 267.
96
United States v. Piper, 912 F.3d 847, 853 (5th Cir. 2019) (per curiam) (citations
omitted).
97
Mesquiti, 854 F.3d at 275 (quoting United States v. Scott, 48 F.3d 1389, 1393 (5th
Cir. 1995)).
98
United States v. Barnett, 197 F.3d 138, 144 (5th Cir. 1999) (internal quotation
omitted).
99
United States v. Gates, 557 F.2d 1086, 1088 (5th Cir. 1977) (citation omitted).
100
Mesquiti, 854 F.3d at 275 (quoting Scott, 48 F.3d at 1393).
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continuance was an abuse of discretion, Bubu “must show that the denial
resulted in ‘specific and compelling or serious prejudice.’” 101 We will uphold
the decision below so long as it was not arbitrary or unreasonable. 102
Bubu argues the district court abused its discretion in denying her
continuance request made at sentencing because she was unprepared to
represent herself. While Bubu’s briefs identify the correct standard, she fails
to address the “specific and compelling or serious prejudice” that resulted
from the denial of the continuance. To be sure, Bubu maintains that she
needed more time to prepare to discuss her PSR objections. That said, she
fails to explain how this discussion would have aided her defense. She
therefore cannot establish prejudice. 103
The record also indicates that prior to Bubu’s request, the district
court paused proceedings and instructed Bubu and her counsel to review the
PSR. She refused to do so. Any resulting prejudice was by her own hand.
Bubu’s counsel was available and capable of representing her, and she may
not indefinitely postpone hearings to seek representation. 104 The district
court acted well within its discretion in refusing to grant the requested
continuance.
C.
Bubu argues that the district court erred by adopting the PSR without
first hearing objections from her attorney, violating her Rule 32 rights, which
_____________________
101
Id. (quoting Barnett, 197 F.3d at 144).
102
United States v. Stalnaker, 571 F.3d 428, 439 (5th Cir. 2009) (citation omitted).
103
See Mesquiti, 854 F.3d at 276.
104
See Gates, 557 F.2d at 1088 (“[A] defendant ‘may not indefinitely postpone trial
by continued applications for more time to seek representation.’” (quoting United States v.
Arlen, 252 F.2d 491, 494 (2d Cir. 1958))).
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require sentencing courts to “allow the parties’ attorneys to comment on the
probation officer’s determinations and other matters relating to an
appropriate sentence.” 105 Because Bubu did not object to the PSR below,
plain error review applies. 106
Bubu argues neither she nor her attorney had a chance to object.
Nowhere does the Rule require courts to hear comments before ruling on PSR
objections. The Rule governing parties’ opportunities to speak, Rule
32(i)(4)(A), provides that defendants and their attorneys must have an
opportunity to speak “[b]efore imposing sentence,” not before adopting the
PSR. 107 Bubu argues but cites no support for the assertion that “[a]t least
where the defendant proceeds pro se, the same reasoning suggests that the
court errs when ruling on PSR objections without soliciting argument from
the defendant.” We have noted that “‘[t]he touchstone of [R]ule 32 is
reasonable notice’ to allow counsel adequately to prepare a meaningful
_____________________
105
FED. R. CRIM. P. 32(i)(1)(C). Bubu’s initial brief quotes the correct
subsection—Rule 32(i)(1)(C)—but incorrectly cites to 32(i)(4)(C), which is not relevant
to Bubu’s appeal. Bubu’s Reply Brief cites the correct provision in some places and the
incorrect in others.
106
See United States v. Reyna, 358 F.3d 344, 350 (5th Cir. 2004) (en banc). While
Bubu did not object to this below, she argues that we should review for harmless error
because she was not given an opportunity to object. See FED. R. CRIM. P. 51(b) (“If a
party does not have an opportunity to object to a ruling or order, the absence of an objection
does not later prejudice that party.”). However, the sentencing transcript reveals that Bubu
did not attempt to object to the PSR. Bubu points to the judge telling her: “Please don’t
interrupt me.” But not only was Bubu interrupting to object to her self-representation, this
occurred after the court acknowledged and ruled on the PSR objections. We have long held
that “[a] party must raise a claim of error with the district court in such a manner so that
the district court may correct itself.” United States v. Krout, 66 F.3d 1420, 1434 (5th Cir.
1995) (quoting United States v. Bullard, 13 F.3d 154, 156 (5th Cir. 1994)). Bubu did not do
so here.
107
FED. R. CRIM. P. 32(i)(4)(A).
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response and engage in adversary testing at sentencing.” 108 Here, both Bubu
and her attorney were given opportunities to speak at sentencing. While the
Federal Sentencing Guidelines say that “[w]hen any factor important to the
sentencing determination is reasonably in dispute, the parties shall be given
an adequate opportunity to present information to the court regarding that
factor[,]” it notes that counsel’s “[w]ritten statements” may suffice. 109 That
is what happened here. Bubu’s attorney filed written objections.
Additionally, unlike Rule 32(i)(1)(B) and Rule 32(i)(4)(A), Rule 32(i)(1)(C)
does not require courts to “give [defendants] a reasonable opportunity to
comment,” 110 “address the defendant personally,” 111 or “provide the
defendant’s attorney an opportunity to speak.” 112 Rule 32(i)(1)(C) instead
requires that parties’ attorneys be allowed to comment. 113 At no point did the
district court prohibit Bubu’s attorney from commenting. Bubu has not
established that the district court committed a clear or obvious violation of
Rule 32(i)(1)(C).
_____________________
108
United States v. Angeles–Mendoza, 407 F.3d 742, 749 n.12 (5th Cir. 2005)
(emphasis omitted) (quoting United States v. Andrews, 390 F.3d 840, 845 (5th Cir. 2004));
see also Irizarry v. United States, 553 U.S. 708, 715 (2008) (“Sound practice dictates that
judges in all cases should make sure that the information provided to the parties in advance
of the hearing, and in the hearing itself, has given them an adequate opportunity to confront
and debate the relevant issues.”).
109
U.S. SENT’G GUIDELINES MANUAL § 6A1.3 & cmt (U.S. Sent’g
Comm’n 2016).
110
Rule 32(i)(1)(B).
111
Rule 32(i)(4)(A)(ii).
112
Rule 32(i)(4)(A)(i).
113
Rule 32(i)(1)(C).
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D.
Bubu challenges as improper hearsay the admission of an
investigator’s testimony about an intercepted conversation between
LaTonya Tucker, a receptionist for Capistrano who secured money from
patients, and Ritchie Milligan, a recruiter, in which the two discuss “Little
Barry Hill.” 114 Although evidentiary rulings are usually reviewed for abuse of
discretion, a defendant must preserve the challenge through an objection. 115
We review unpreserved challenges for plain error. 116
Bubu argues she preserved the challenge by objecting to and
referencing the presence of double hearsay in the challenged testimony at
trial. But at trial, Bubu objected to a wiretapped conversation between
Tucker and Milligan as double hearsay because it included “two different
people talking.” The testimony about Jonathan McGillivray that Bubu
challenges on appeal occurred after the district court overruled Bubu’s
double hearsay objection. That objection did not preserve the error Bubu now
urges because it was not “sufficiently specific to alert the district court to the
nature of the alleged error and to provide an opportunity for correction.” 117
We therefore review for plain error. 118
_____________________
114
See FED. R. EVID. 801(d)(2)(E); see also, e.g., United States v. El-Mezain, 664
F.3d 467, 501–03 (5th Cir. 2011), as revised (Dec. 27, 2011) (discussing Rule 801(d)(2)(E)).
The conversation revealed (1) that Bubu allowed Little Barry Hill to fill fraudulent
prescriptions, and (2) that Little Barry Hill is a street name for Jonathan McGillivray.
115
United States v. Morin, 627 F.3d 985, 994 (5th Cir. 2010) (citing United States v.
Sanchez-Hernandez, 507 F.3d 826, 831 (5th Cir. 2007)).
116
United States v. Akins, 746 F.3d 590, 597 (5th Cir. 2014).
117
United States v. Neal, 578 F.3d 270, 272 (5th Cir. 2009) (citing United States v.
Ocana, 204 F.3d 585, 589 (5th Cir. 2000)).
118
Akins, 746 F.3d at 597.
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Bubu contends this testimony is double hearsay because “[i]t
reflected both the conversation between Ms. Tucker and Mr. Milligan and
some prior conversation relating these facts about Mr. McGillivray to either
Ms. Tucker or Mr. Milligan.” Bubu does not contest that the conversation
between Tucker and Milligan is admissible under the conspiracy hearsay
exclusion. She rather argues that Turner and Miller do not have personal
knowledge of the information about McGillivray. But this contention brings
no comfort. The record is insufficient to determine whether Turner or Miller
obtained the information about McGillivray first-hand or in the furtherance
of a conspiracy. 119 Any error was neither plain nor obvious. And there was
substantial evidence about McGillivray and Bubu’s fraudulent
transactions,120 so even if we did find errors, they did not affect Bubu’s
substantial rights or seriously affect her trial’s fairness. We find no reversible
error.
E.
Bubu challenges the district court’s allowing a DEA agent to
authenticate her signature as a lay witness. Since Bubu objected at trial, the
district court’s ruling on the admissibility of evidence is reviewed for abuse
_____________________
119
The parties argue about this possibility in their briefs. A statement is “not
hearsay” if “[t]he statement is offered against an opposing party and . . . was made by the
party’s coconspirator during and in furtherance of the conspiracy.” FED. R. EVID.
801(d)(2)(E).
120
Evidence at trial included text messages between McGillivray and Bubu
disputing cash payments. McGillivray sent Bubu text messages saying things like “I will
draw [sic] off the patients I owe you tomorrow” and “I have all the patients and all my
money.” Bubu told McGillivray to “Please remove [her pharmacy’s] logo from vials.” And
on the day the Texas State Board of Pharmacy went to Bubu’s pharmacy, Bubu sent
McGillivray a series of frantic texts, including: “Emergency” and “They say all X are fake.
Call me.”
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of discretion subject to harmless error. 121 The metric is “unless manifestly
erroneous,” we will not reverse. 122
At trial, the district court overruled Bubu’s objection to a DEA
agent’s lay testimony identifying two of her signatures. 123 The agent gained
familiarity with Bubu’s handwriting during the course of the investigation.
Bubu argues that familiarity developed during a criminal investigation is
“acquired for purposes of the litigation” and not admissible as lay witness
testimony. While we have not addressed whether an investigator who
develops familiarity about handwriting during an investigation may
authenticate the handwriting as a lay witness, our sister circuits have. We are
persuaded by their reasoning.
Under Rule 901 of the Federal Rules of Evidence, a signature can be
authenticated by “[a] nonexpert’s opinion that handwriting is genuine, based
on a familiarity with it that was not acquired for the current litigation.” 124
“Testimony based upon familiarity acquired for purposes of the litigation,”
on the other hand, must be provided as expert testimony. 125 The First,
Second, Sixth, Eighth, and Eleventh Circuits all allow investigators who
become familiar with handwriting in the process of solving a crime to testify
at trial as lay witnesses. 126 “Each of those circuits has drawn a distinction,
_____________________
121
United States v. Moparty, 11 F.4th 280, 295 (5th Cir. 2021) (citations omitted).
122
Brumfield v. Hollins, 551 F.3d 322, 330 (5th Cir. 2008) (citing United States v.
Tucker, 345 F.3d 320, 326 (5th Cir. 2003)).
123
Bubu concedes in her reply that the third signature she objected to, Tomlinson’s
signature on a patient consultation log, has no bearing on her case.
124
FED. R. EVID. 901(b)(2).
125
FED. R. EVID. 901(b) advisory committee’s note.
126
See United States v. Iriele, 977 F.3d 1155, 1167 (11th Cir. 2020); United States v.
Harris, 786 F.3d 443, 447–48 (6th Cir. 2015); United States v. Ali, 616 F.3d 745, 753–54 (8th
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either explicitly or implicitly, between becoming familiar with someone’s
handwriting ‘for the current litigation’ and doing so for the purpose of
determining if the defendant has committed a crime.” 127 We found no sister
circuit holding differently, nor did Bubu identify one.
Here, the agent’s testimony was not merely a “one-shot comparison”
where a witness identifies handwriting for the first time in the courtroom
during trial.128 Rather, over the course of the investigation, the agent
reviewed 20,000 pages of prescriptions with witness signatures. Given that
an “investigator is in the same position as any other lay witness who, as part
of his job or in his day-to-day affairs, has seen examples of the defendant’s
handwriting, such as the defendant’s ‘accountant, employee[,] or family
member[,]’” 129 we join our four sister circuits in holding that the district
court did not err in admitting the agent’s testimony.
V.
Finally, we address Capistrano’s other claims. None is meritorious.
_____________________
Cir. 2010); United States v. Samet, 466 F.3d 251, 256 (2d Cir. 2006); United States v. Scott,
270 F.3d 30, 48–50 (1st Cir. 2001).
127
Iriele, 977 F.3d at 1166.
128
Cf. United States v. Pitts, 569 F.2d 343, 348 (5th Cir. 1978) (holding lay testimony
was properly excluded when the “familiarity” was gained “solely by comparing the
signature” to the witness’s signature on day of trial).
129
Iriele, 977 F.3d at 1167 (first alteration in original) (quoting Samet, 466 F.3d at
256); see also United States v. Kilgore, 518 F.2d 496, 498 (5th Cir. 1975) (holding witnesses
with experience viewing a defendant’s initials and the types of documents they would sign
could prove that by affidavit).
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No. 21-10620
A.
Capistrano objects to statements made during the Government’s
closing argument as mischaracterizing the facts. The statements were
objected to at trial. We review for abuse of discretion. 130
“A criminal conviction is not to be lightly overturned on the basis of a
prosecutor’s comments standing alone,” and “[t]he determinative question
is whether the prosecutor’s remarks cast serious doubt on the correctness of
the jury’s verdict.” 131 To determine whether there was prosecutorial
misconduct, we ask whether “the prosecutor made an improper remark” and
whether “the defendant was prejudiced.” 132 Prejudice is a “high bar.” 133
Capistrano objected to the Government’s assertion that he had “zero
cancer patients.” The district court overruled the objection and instructed
the jury: “you will remember what the evidence shows.” “The closing
argument must be analyzed in the context of the entire case to determine
whether it affected substantial rights of the accused. In making this
determination, [we] should consider the strength of the [G]overnment’s case
and the trial court’s instructions to the jury.” 134 The evidence shows that a
“few” of Capistrano’s patients were diagnosed with cancer. But Capistrano
did not treat patients for cancer, he treated them for “pain.” So when one of
Capistrano’s employees was asked if they saw “any cancer patients at all[,]”
_____________________
130
See United States v. Griffin, 324 F.3d 330, 361 (5th Cir. 2003) (citation omitted).
131
United States v. Iredia, 866 F.2d 114, 117 (5th Cir. 1989) (per curiam) (citations
omitted).
132
Fields, 483 F.3d at 358 (quotation marks and citation omitted).
133
United States v. Reagan, 725 F.3d 471, 492 (5th Cir. 2013) (internal quotation and
citation omitted).
134
United States v. Chase, 838 F.2d 743, 749 (5th Cir. 1988) (citation omitted).
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she responded “No.” Given the substantial evidence against Capistrano and
the district court’s instructions to “remember what the evidence shows,” we
find no reversable error. Indeed, the Government’s argument is consistent
with the evidence. Moreover, if the evidence in the case to support a
conviction is strong, it is unlikely that the defendant was prejudiced by any
improper arguments made by the prosecutor in closing arguments. 135
B.
Capistrano argues his counsel was ineffective because he did not
request home detention, failed to make various objections, failed to
investigate claims, failed to object to jury instructions, and failed to request a
Franks hearing. 136 Yet we review a claim for ineffective assistance of counsel
(“IAC”) on direct appeal “[o]nly when the record is sufficiently developed
with respect to such a claim.” 137 That is, evidence or examples establishing
deficient performance or prejudice. 138 We have none here. As the record is
not sufficiently developed to evaluate Capistrano’s IAC claim, we decline to
consider the claims on direct appeal. 139
_____________________
135
See United States v. Diaz-Carreon, 915 F.2d 951, 956 (5th Cir. 1990). Even if we
did credit this claim, after reviewing the record and considering the relevant factors, we
cannot conclude that remark undermines the correctness of the verdict.
136
See generally Franks v. Delaware, 438 U.S. 154 (1978).
137
United States v. Rosalez-Orozco, 8 F.3d 198, 199 (5th Cir. 1993) (internal
quotation and citation omitted).
138
Strickland v. Washington, 466 U.S. 668, 687 (1984).
139
See United States v. Isgar, 739 F.3d 829, 841 (5th Cir. 2014); see also United States
v. Gulley, 526 F.3d 809, 821 (5th Cir. 2008) (per curiam) (“If we cannot fairly evaluate the
claim from the record, we must decline to consider the issue without prejudice to a
defendant’s right to raise it in a subsequent proceeding.” (citations omitted)).
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C.
Capistrano is proceeding pro se, so we must “interpret his brief
liberally to afford all reasonable inference which can be drawn from them.” 140
By the rules, pro se “litigants must still brief the issues and reasonably comply
with the standards of Rule 28 in order to preserve them.” 141 Failure to
comply with this Court’s rules results in dismissal. 142 We will not address his
remaining arguments as they either are frivolous or inadequately briefed. 143
VI.
In sum, we AFFIRM Appellants’ convictions and sentences. There
is sufficient evidence for a jury to draw reasonable inferences to support
Appellants’ convictions. Bubu and Capistrano fail to make the showings
necessary to warrant plain error reversal. Bubu’s refusal to be represented by
her retained attorney amounted to a knowing and voluntarily waiver of
counsel. Bubu fails to show the necessary prejudice for her challenges to the
denial for a continuance, as well as permitting a DEA agent to authenticate
her signature as a lay witness. The Government’s closing argument was
_____________________
140
In re Tex. Pig Stands, Inc., 610 F.3d 937, 941 n.4 (5th Cir. 2010) (citation
omitted).
141
Arredondo v. Univ. of Tex. Med. Branch at Galveston, 950 F.3d 294, 298 (5th Cir.
2020) (internal quotation and citation omitted).
142
Id. (citation omitted)
143
These include claims: (1) that the district court lacked subject matter
jurisdiction over him because Article III does not mention “district court[s]”; (2) the
Government lacked standing because the United States of America cannot be a named
party; (3) he cannot be convicted for a Title 21 offense because he did not sign a contract
with the United States; (4) he was not allowed to testify before being charged by a grand
jury; (5) he was a victim of selective prosecution; (6) he had a right to a hearing of which
he was deprived; (7) the district court inappropriately engaged in usurping the power of the
State of Texas’s medical board; (8) the evidence offered at trial was falsified; and (9) the
government failed to turn over his patient files.
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consistent with the evidence. The record is not sufficiently developed to
evaluate Capistrano’s IAC claim. And Capistrano’s additional claims are
either frivolous or insufficiently briefed.
AFFIRMED.
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No. 21-10620
Patrick E. Higginbotham, Circuit Judge, concurring in part and
dissenting in part:
Decades ago, Justice Oliver Wendell Holmes, Jr., and Judge Learned
Hand, two of our nation’s preeminent legal minds, were having lunch, and
after breaking bread, “as Holmes began to drive off in his carriage, Hand, in
a sudden onset of enthusiasm, ran after him, crying, ‘Do justice, sir, do
justice.’ Holmes stopped the carriage and reproved Hand: ‘That is not my
job. It is my job to apply the law.’” 1
“The exchange between the two judges is part of an age-old struggle
to define the relation of law and justice and to determine to which the judge
owes loyalty.” 2 In Hand’s telling of the story, he did so only “to provoke a
response” from Holmes, knowing full-well that he agreed with Holmes’s
view of his juridical responsibility. 3 And, indeed, as students of these two
stalwarts and their jurisprudential philosophy know both believed their duty
and fidelity was strictly to the law rather than to one’s individual concept of a
just outcome. 4 By contrast, those like Chief Justice Earl Warren or Judge J.
_____________________
1
ROBERT H. BORK, THE TEMPTING OF AMERICA 6 (1990). Over the years, this
story has been told with slight variations. See, e.g., Michael Herz, “Do Justice!”: Variations
of A Thirce-Told Tale, 82 VA. L. REV. 111, 111–12 (1996) (retelling the story as told by Hand
himself, Bork, and Prof. Abram Chayes).
2
Herz supra n.1 at 112–13.
3
Id. at 111 (quoting Learned Hand, A Personal Confession, in The Spirit of Liberty
302, 306-07 (Irving Dilliard ed., 3d ed. 1960)).
4
See id. at 114–15 & n.11–13; see also William J. Brennan, Jr., In Memoriam: J. Skelly
Wright, 102 HARV. L. REV. 361 (1988) (“If useful at all, the labels may be more serviceable
to distinguish the judge who sees his role as guided by the principle that ‘justice or
righteousness is the source, the substance and the ultimate end of the law,’ from the judge
for whom the guiding principle is that ‘courts do not sit to administer justice, but to
administer the law.’ Such legendary names as Justice Holmes and Judge Learned Hand
have been associated with the latter view.”).
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Skelly Wright, two luminaries of their day, fall into the latter category. 5 With
regard to Bubu’s conviction on Count 3, the majority is loyal to neither.
Though I join the remainder of the Court’s opinion vis-à-vis Bubu’s
other convictions as well as those of her co-defendants, as I believe there is a
miscarriage of justice afoot, I would not affirm the sentence imposed for her
drug trafficking conviction in Count 3.
I.
One month after oral argument, Bubu’s counsel moved to file
supplemental briefing raising a new claim: “whether the Court reversibly
erred in imposing a sentence of 20 months on Count Three, when 21 U.S.C.
§§ 841(b)(1)(E)(3) and 846 set forth a maximum of 12 months.” 6 The
unopposed motion for leave to file was directed to me as a single judge matter
and granted, with a request that the Government respond. 7 It did,
“agree[ing] [that] the sentence exceeded the statutory maximum and that the
sentence could not be greater than 12 months” and urging that “the Court []
reform the judgment to reduce the sentence” in accordance with the
statutory maximum rather than remanding altogether. 8 In other words, the
Government conceded plain error urging that the panel correct the error
rather than remand for a new sentencing hearing.
_____________________
5
See Brennan, supra n.4 at 361–62;
6
Unopposed Motion for Leave to File Supplemental Letter Brief Regarding
Statutory Maximum on Count Three at 1, United States v. Ethel Oyekunle-Bubu, No. 21-
10620 (Dkt. No. 455).
7
See generally Order, United States v. Ethel Oyekunle-Bubu, No. 21-10620 (Dkt. No.
459).
8
Government’s Response to Supplemental Letter Brief at 2, United States v. Ethel
Oyekunle-Bubu, No. 21-10620 (Dkt. No. 455).
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II.
When the Government confesses that a person is facing nearly a year
in prison for which there is no legal basis—it matters. Nigh a century ago, the
Supreme Court made clear that “[i]n exceptional circumstances, especially in
criminal cases, appellate courts, in the public interest, may, of their own
motion, notice errors to which no exception has been taken, if the errors are
obvious, or if they otherwise seriously affect the fairness, integrity, or public
reputation of judicial proceedings.” 9 Twenty-six and a half years later, the
High Court reaffirmed that principle. 10 Since that pronouncement, our Court
has taken that principle to heart, “recogniz[ing] an exception to” the general
waiver rule “whereby we will consider a point of error not raised on appeal
when it is necessary ‘to prevent a miscarriage of justice.’” 11 The Federal
Rules of Criminal Procedure specifically endow us with the authority to
reverse a sentence on the basis of plain error, even though the defendant has
_____________________
9
United States v. Atkinson, 297 U.S. 157, 160 (1936) (emphasis added).
10
See Silber v. United States, 370 U.S. 717, 718 (1962) (quoting Atkinson, 297 U.S.
at 160).
11
United States v. Whitfield, 590 F.3d 325, 346 (5th Cir. 2009) (quoting United
States v. Montemayor, 703 F.2d 109, 114 n.7 (5th Cir. 1983)); see also, e.g., United States v.
Douglas, 910 F.3d 804, 806 (5th Cir. 2018), as revised (Dec. 19, 2018) (“The threshold
question is whether we should address the district court’s error at all because Douglas did
not object below or raise this issue in his opening brief. We answer in the affirmative.”);
United States v. Delgado, 672 F.3d 320, 329 (5th Cir. 2012) (en banc) (“[I]n very rare
instances, we have applied the plain-error standard to errors neither preserved below nor
argued on appeal.”); United States v. Gonzalez, 259 F.3d 355, 359 (5th Cir. 2001) (“We may
raise an issue sua sponte ‘even though it is not assigned or specified’ when ‘plain error is
apparent’” (quoting United States v. Pineda–Ortuno, 952 F.2d 98, 105 (5th Cir. 1992)));
United States v. Musquiz, 445 F.2d 963, 966 (5th Cir. 1971) (“We notice this error on our
own motion, as we think we are required to do when the error is so obvious that failure to
notice it would ‘seriously affect the fairness, integrity, or public reputation of judicial
proceedings.’” (quoting the above passage from Atkinson quoted in Silber)).
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not raised the issue on appeal. 12 And of course, this issue was raised on
appeal, albeit not in a timely fashion. To these eyes, the error at issue here
falls squarely within this exception. This is no minor error, but one the
Government concedes will subject Bubu to nearly one year of prison beyond
her legal sentence.
If the point is to impose discipline upon counsel for their
shortcomings, it misses the mark. As Chief Justice Marshall wrote just over
two centuries ago, “the power of punishment is vested in the legislative, not
in the judicial department. It is the legislature, not the Court, which is to
define a crime, and ordain its punishment.” 13 Affirming this sentence beyond
what Congress permits, as our Court does today, exceeds our power and
usurps that of the Congress. Indeed, I can think of no clearer subject of
“exceptional circumstances” worthy of action than an unlawful sentence. 14
And in conceding the error, the Government asked this Court to correct the
error and otherwise affirm rather than remand for resentencing. 15
_____________________
12
See Whitfield, 590 F.3d at 346–47 (quoting Fed. R. Crim. P. 52(b): “A plain error
that affects substantial rights may be considered even though it was not brought to the
court’s attention”).
13
United States v. Wiltberger, 18 U.S. 76, 95 (1820).
14
Accord, e.g., United States v. Graham, 275 F.3d 490, 522 (6th Cir. 2001) (“Both
the Supreme Court and this circuit have found sua sponte consideration of plain error to be
appropriate to remedy unlawful sentences imposed by the district court.”); cf. Bartone v.
United States, 375 U.S. 52, 53 (1963) (holding that district court’s error in increasing
sentence by one day in the absence of the defendant “was so plain . . . that it should have
been dealt with by the Court of Appeals, even though it had not been alleged as error”).
And beyond fairness, “judicial economy [also] dictate[s] that we address now this issue
that would doubtless otherwise be raised in a subsequent habeas proceeding.” Pineda-
Ortuno, 952 F.2d at 105.
15
See generally Government’s Response to Supplemental Letter Brief, United
States v. Ethel Oyekunle-Bubu, No. 21-10620 (Dkt. No. 455).
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Our Court has corrected errors in unlawful sentences without remand
for unlawful terms of supervised release 16 or where the modification of the
carceral term for one count did not impact the total imprisonment. 17 I would
remand the case and allow the able district judge to exercise his discretion.
The form of the remedy aside—affirm with a modification or
remand—inaction ought not be countenanced, as the Court’s opinion
demands Ethel Oyekunle-Bubu stay in prison eight months more than
Congress deemed permissible.
_____________________
16
See United States v. McWaine, 290 F.3d 269, 277 (5th Cir. 2002) (“Although
McWaine does not raise this issue, we have the discretion to sua sponte modify the term.
. . . This Court has modified terms of supervised release that exceeded the statutory
maximum without remanding for re-sentencing. Accordingly, this Court hereby modifies
the district court’s sentence of five years’ supervised release for Count 1 to three years.”);
United States v. Castenada, No. 00-40929, 2002 WL 334721, at *1 (5th Cir. 2002)
(unpublished) (per curiam) (“We find that Castenada’s four-year term of supervised
release exceeds the statutory maximum of three years. . . . We therefore modify
Castenada’s supervised release to the statutorily mandated three-year term.”).
17
See United States v. Sotelo, 401 F. App’x 967, 969 (5th Cir. 2010) (unpublished)
(per curiam) (“Sotelo’s 87–month sentence exceeds the statutory maximum of 60 months
for the conspiracy offense. Accordingly, we MODIFY Sotelo’s sentence for the conspiracy
charge to 60 months in prison. . . . The modification does not affect the overall term of
imprisonment because Sotelo's concurrent sentence for his exportation charge exceeds the
modified sentence. . . . Sotelo’s sentences are thus AFFIRMED as modified.”); United
States v. Hernandez-Muniz, 354 F. App’x 133, 134 (5th Cir. 2009) (unpublished) (per
curiam) (“The maximum term of imprisonment allowed for a violation of §
1324(a)(1)(A)(ii) and (v)(ii) is five years. . . . As the Government concedes, Hernandez-
Muniz’s sentence of 65 months of imprisonment for transporting an alien exceeds the 60-
month maximum and constitutes plain error that affects his substantial rights and affects
the fairness, integrity, and public reputation of the judicial proceedings. . . . Accordingly,
we modify the term of imprisonment imposed for Hernandez-Muniz’s conviction for
violating § 1324(a)(1)(A)(ii) and (v)(ii) to 60 months. . . . The modification does not affect
the overall term of imprisonment because Hernandez-Muniz’s concurrent sentence for his
illegal reentry conviction exceeds the modified sentence for his violation of §
1324(a)(1)(A)(ii) and (v)(ii).”).
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*****
No jurisdictional bar prevents this Court from correcting this error. 18
With respect, to these eyes, refusing to do so works a manifest injustice
without principled justification.
I accept the necessity of maintaining the guardrails of our court with
its myriad rules of preclusion, but I would correct this error—and in doing so
would be attending these rules, enabling their function without blinking at an
injustice we are duty-bound to correct. This is not the pursuit of justice and
fairness in the abstract. It is simply a citizen’s government refusing to enforce
a prison sentence it confesses is illegal.
With respect, I must DISSENT from affirming Bubu’s sentence for
Count 3.
_____________________
18
See United States v. Huntsberry, 956 F.3d 270, 282 n.4 (5th Cir. 2020) (holding
“we have jurisdiction to review even unpreserved arguments”); United States v. Arellano-
Banuelos, 912 F.3d 862, 865 n.2 (5th Cir. 2019) (noting that while “‘[t]he proper time to
closely examine the record and develop legal defenses is before the completion of
briefing,’” and that “[w]e are even more reluctant to consider arguments raised after oral
argument is complete and the case has been submitted for decision” because “[t]he proper
time to closely examine the record and develop legal defenses is before the completion of
briefing, not in the months after oral argument,” the Court retains discretion to consider
such issues where “‘exceptional circumstances’” exist (quoting Martinez v. Mukasey, 519
F.3d 532, 545 (5th Cir. 2008); and then quoting Silber, 370 U.S. at 718)); United States v.
Guillen-Cruz, 853 F.3d 768, 777 (5th Cir. 2017) (“Whether we will consider an unpreserved
argument is a matter of discretion.”).
40