United States v. Fuchs

United States Court of Appeals

Fifth Circuit

F I L E D

REVISED NOVEMBER 15, 2006

October 17, 2006

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT Charles R. Fulbruge III

Clerk

No. 05-10426

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

CLAYTON H FUCHS; EUGENE GONZALES; WALDRICK LEMONS

Defendants - Appellants

Appeals from the United States District Court

for the Northern District of Texas

Before KING, GARWOOD, and JOLLY, Circuit Judges.

KING, Circuit Judge:

Defendants-appellants Clayton H. Fuchs, Eugene Gonzales, and

Waldrick Lemons were charged in a six-count indictment for their

involvement in two Internet-based pharmacies that dispensed

controlled substances to thousands of customers without valid

prescriptions. The jury convicted them on all counts, and they

timely appealed. For the reasons that follow, we AFFIRM.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Factual Background

This case centers around two Internet-based pharmacies that

defendant-appellant Clayton H. Fuchs established and operated.

In 1999, Fuchs, then a licensed pharmacist, sought to capitalize

on the Internet boom by setting up an online pharmacy. Fuchs’s

idea was to find a physician, or several physicians, who would

issue prescriptions or refills for patients who requested

medication online. Fuchs would then dispense the medication,

based on the physician’s prescriptions, to patients throughout

the United States.

After several meetings with Dr. Stephen Thompson, then a

licensed physician who had had ideas similar to Fuchs’s, Fuchs

opened Friendly Pharmacy (“Friendly”) inside the Garland, Texas

office building where Dr. Thompson maintained his medical clinic.

Dustin Humphries, a licensed pharmacist who was a close friend of

Fuchs, also partnered with Fuchs to open Friendly. Humphries

initially designed and maintained Friendly’s web site.

Friendly began receiving orders through its web site in

April 1999, but business was slower than Fuchs desired,

presumably because Friendly initially offered non-controlled

medications only. That same month, Fuchs approached Dr. Thompson

and told him that the pharmacy was receiving requests for

controlled substances. Dr. Thompson initially resisted the idea

of dispensing controlled substances via the Internet because he

was concerned it might be illegal. But after a few more months

of slow sales and after Fuchs told him about another web-based

pharmacy that was continuing to dispense controlled substances

even after a government investigation, Dr. Thompson relented.

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Once Friendly began offering controlled substances, sales

skyrocketed.

Fuchs hired several employees to work at Friendly. Among

them was defendant-appellant Eugene Gonzales, Fuchs’s step-

father, who supervised several of the pharmacy’s employees.

Fuchs’s then wife, Angela Fuchs, also worked at the pharmacy.

Dr. Thompson testified at trial that Angela Fuchs and Gonzales

were part of the pharmacy’s “inner circle.” Friendly also

employed defendant-appellant Waldrick Lemons as a pharmacist.

Friendly’s operation was relatively simple. Customers

located throughout the United States went to the pharmacy’s web

site, completed an online profile, and requested medication.

After a customer completed an order, Friendly generated a

completed prescription form and forwarded it to Dr. Thompson for

his approval. Dr. Thompson reviewed the patient’s profile and

approved and signed the prescription without communicating with

the patient either face to face or over the telephone. Friendly

paid Dr. Thompson $40 for each prescription he approved. Either

Fuchs or Lemons, assisted by Friendly’s pharmacist technicians,

then filled the prescription, and a Friendly employee shipped it

to the customer.

Fuchs instituted few checks to ensure controlled substances

were not being abused. A Friendly employee called each customer

to verify the order before forwarding the completed prescription

form to Dr. Thompson. And if a Friendly employee suspected that

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a customer was abusing controlled substances or using a fake name

to obtain them, she would ask the customer to fax in some form of

identification or she would add the name to a list of suspect

customers for whom the pharmacy refused to fill further

prescriptions. Notwithstanding these minimal checks in the

process, the pharmacy filled nearly all of the orders that were

placed.

In May 2000, Fuchs decided to expand business by increasing

the number of hydrocodone tablets per prescription from 40 to

100. Dr. Thompson initially resisted the increase, but he

eventually acquiesced, and Fuchs increased Dr. Thompson’s payment

to $100 per prescription. By August 2000, Friendly processed 150

to 200 requests for medication daily; hydrocodone, a Schedule III

controlled substance, was the primary drug being dispensed.

Cy Weich, a Field Compliance Officer with the Texas State

Board of Pharmacy (“TSBP”), performed a routine inspection of

Friendly in August 2000. The information Weich gleaned during

the inspection alarmed him. He was troubled by the high volume

of prescriptions, especially controlled substances, that Friendly

was dispensing. He was also concerned that nearly all of

Friendly’s prescriptions were signed by the same doctor, who was

located in Texas, despite the fact that the patients were

dispersed throughout the United States. After consulting with

TSBP’s general counsel, Weich informed Fuchs that the

prescriptions generated through Friendly’s web site were invalid.

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According to the testimony of a former Friendly employee,

Fuchs informed the employees a few days after Weich’s inspection

that Friendly was going to shut down “because it was illegal

or . . . we were doing something wrong.” Supp. R. 675. Friendly

apparently stopped accepting new orders shortly thereafter, but

it remained open long enough to continue processing the 1,000 or

more orders it had already received.

In October 2000, Fuchs opened Main Street Pharmacy (“Main

Street”) in Norman, Oklahoma. Main Street was also an Internet-

based pharmacy; its operation was substantially the same as

Friendly’s. Main Street was nominally owned by Gonzales,

although he had very little interaction with the pharmacy and its

employees recognized Fuchs as the true owner. Trial testimony

conflicted as to why Main Street was put into Gonzales’s name.

According to Craig Jones, an employee at both Friendly and Main

Street, Fuchs told him it was because he did not want a paper

trail linking Friendly with Main Street. According to other

testimony, the reason was that Fuchs was going through a divorce

and sought to protect his assets. Regardless of Fuchs’s

motivation, he purchased Gonzales a new truck in exchange for

putting Main Street in Gonzales’s name.

Fuchs offered his Friendly employees positions at Main

Street if they would move to Oklahoma. Lemons declined Fuchs’s

offer. By this point, Dr. Thompson had also severed his

relationship with Fuchs. Fuchs established relationships with

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three physicians who approved Main Street’s orders. The primary

physician was Dr. Ricky Joe Nelson.1 Dr. Nelson approved most of

Main Street’s prescriptions, but he refused to approve

prescriptions for customers in Oklahoma and one or two other

states because he had medical licenses in those states. Main

Street paid Dr. Nelson between $40 and $70 for each prescription

he approved. Drs. Kenneth Speak and Robert Ogle also approved

prescriptions at Main Street.

Fuchs hired Myron Thompson as a pharmacist at Main Street.

After a couple of weeks, Myron Thompson became highly suspicious

of the legality of Main Street’s operation and shared his

concerns with Fuchs. Fuchs told him that he would try to find a

replacement pharmacist. Myron Thompson continued working at Main

Street for approximately two more weeks until Fuchs hired Jerry

Shadid as his replacement.

By the time Main Street was shut down, the pharmacy was

processing between 300 and 500 prescriptions per day,

approximately 70% of which were for hydrocodone. And nearly

every hydrocodone order shipped out was a 30-day supply of 100

tablets with two refills. Both Friendly and Main Street charged

far more than the average price for each prescription. Neither

1

Based on his involvement with Main Street, Dr. Nelson was

convicted of conspiracy to distribute controlled prescription

drugs outside the usual course of professional practice and

conspiracy to commit money laundering. See United States v.

Nelson, 383 F.3d 1227 (10th Cir. 2004).

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pharmacy accepted payment through insurance; the pharmacies’

standard payment terms were C.O.D.

B. Procedural History

On November 20, 2002, the grand jury indicted the

defendants-appellants for their involvement in the web-based

pharmacies. Superseding indictments were handed down on July 23,

2003, and September 24, 2003. The second superseding indictment

(“indictment”), on which the defendants-appellants were tried,

contained six counts. Count one charged Fuchs and Lemons with

conspiracy to distribute a controlled substance in violation of

21 U.S.C. § 846. Count two charged Fuchs with engaging in a

continuing criminal enterprise (“CCE”) in violation of 21 U.S.C.

§ 848. Counts three, four, and five charged Fuchs with

dispensing of a controlled substance not in the usual course of

professional practice in violation of 21 U.S.C. § 841(a)(1). And

count six charged Fuchs and Gonzales with conspiracy to commit

money laundering in violation of 18 U.S.C. § 1956(h).2

The defendants-appellants were tried before a jury. At the

close of the government’s case-in-chief, the defendants-

appellants moved for a judgment of acquittal, which the court

denied. The defendants-appellants renewed their motions at the

close of all the evidence. The jury convicted them on all

2

Drs. Speak and Ogle were also charged in count one, and

Dr. Ogle was also charged in count six. Neither Dr. Speak nor

Dr. Ogle is a party in this appeal.

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counts. After trial, the defendants-appellants filed

supplemental motions for judgment of acquittal and motions for a

new trial. The district court denied the defendants-appellants’

motions in a January 25, 2005, order. On the government’s

motion, however, the court dismissed Fuchs’s indictment and

conviction on count one.3 The district court sentenced the

defendants-appellants, and they timely appealed their

convictions.

II. UNLAWFUL DISPENSING OF A CONTROLLED SUBSTANCE

Fuchs first challenges his convictions on counts three,

four, and five, which charged him with dispensing a controlled

substance not in the usual course of professional practice in

violation of 21 U.S.C. § 841(a)(1).4

A. Background

Section 841(a)(1) makes it “unlawful for any person

knowingly or intentionally . . . to manufacture, distribute, or

dispense . . . a controlled substance.” Although medical

professionals who are registered with the Attorney General are

3

This was done presumably because conspiracy to distribute

a controlled substance is a lesser included offense of CCE. See

Rutledge v. United States, 517 U.S. 292, 307 (1996).

4

Fuchs also indirectly challenges his other

convictions——for CCE and conspiracy to commit money

laundering——on the basis that they are dependent on his

§ 841(a)(1) conviction. That is, he suggests that if his

conviction for dispensing of a controlled substance falls, then

so must his remaining convictions.

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generally permitted to dispense controlled substances, they “can

be prosecuted under § 841 when their activities fall outside the

usual course of professional practice.” United States v. Moore,

423 U.S. 122, 124 (1975).

The sole basis for Fuchs’s challenge is that the government

was required to prove not only that he dispensed controlled

substances outside the usual course of professional practice but

also that he did so without a legitimate medical purpose.5 He

challenges the legal sufficiency of the indictment as well as the

jury instructions on this ground. It is true that neither the

indictment nor the jury instructions referred to “legitimate

medical purpose.” The indictment alleged that Fuchs violated

§ 841(a)(1) by knowingly dispensing controlled substances “not in

the usual course of professional practice.”6 Likewise, the

district court instructed the jury that to convict Fuchs it

needed to find that he dispensed a controlled substance “knowing

that the controlled substance was prescribed by the prescribing

5

On the same basis, Gonzales challenges his conviction on

count six of conspiracy to commit money laundering. In essence,

Gonzales asserts that he did not agree to engage in financial

transactions involving the proceeds of unlawful activity because

the activity——dispensing controlled substances——was not unlawful,

as it was not alleged to have been done without a legitimate

medical purpose. We reject Gonzales’s argument for the same

reason that we reject Fuchs’s.

6

Count three charges that Fuchs unlawfully dispensed

lorazepam, a Schedule IV controlled substance. Counts four and

five each charge that Fuchs unlawfully dispensed hydrocodone, a

Schedule III controlled substance.

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physician not in the usual course of medical practice.” R. 366.

B. Standard of Review

We generally review a challenge to the sufficiency of the

indictment de novo. United States v. Partida, 385 F.3d 546, 554

(5th Cir. 2004) (citing United States v. Fitzgerald, 89 F.3d 218,

221 (5th Cir. 1996)). But where the defendant fails to present

the challenge before the district court, we review for plain

error. Id. (citing United States v. Hickman, 331 F.3d 439, 443

(5th Cir. 2003)). In this case, Fuchs did move to dismiss counts

three, four, and five prior to trial, but he advanced different

grounds to support his motion than those he presents to this

court. After trial, Fuchs did not challenge the sufficiency of

the indictment in a Rule 34 motion for arrest of judgment. We

therefore review his challenge for plain error. “Error is plain

only when it is clear or obvious and affects the defendant’s

substantial rights . . . .” Id. (citing Hickman, 331 F.3d at

443).

We review jury instructions for abuse of discretion if the

alleged error is preserved below. United States v. Freeman, 434

F.3d 369, 377 (5th Cir. 2005) (citing United States v. Daniels,

281 F.3d 168, 183 (5th Cir. 2002)). But jury instructions that

were not objected to are reviewed for plain error. United States

v. Rubio, 321 F.3d 517, 523 (5th Cir. 2003). Although Fuchs did

object to the portion of the jury instructions referring to

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“usual course of professional practice,” he did not object on the

ground that the government must also prove he dispensed without a

legitimate medical purpose. We therefore review Fuchs’s

challenge to the jury instruction for plain error as well. Cf.

United States v. Arnold, 416 F.3d 349, 355 n.3 (5th Cir. 2005)

(reviewing challenge to jury instruction for plain error because

objection was not specific enough to bring the alleged error to

the district court’s attention (citing United States v. Krout, 66

F.3d 1420, 1434 (5th Cir. 1995); United States v. Heath, 970 F.2d

1397, 1407 (5th Cir. 1992))).

C. Analysis

Fuchs alleges that there is plain error in both the

indictment and the jury instruction because they permitted him to

be charged and convicted without proof that he dispensed

controlled substances without a legitimate medical reason. Fuchs

relies on United States v. Outler, wherein we held that “lack of

a legitimate medical reason is an essential element of [a

§ 841(a)(1)] offense, and therefore must be alleged in the

indictment.” United States v. Outler, 659 F.2d 1306, 1309

(Former 5th Cir. Oct. 1981). But Fuchs misapprehends Outler’s

holding. Prior to Outler, this court in United States v. Rosen

addressed the elements of the offense of dispensing a controlled

substance when the defendant is a registered physician. United

States v. Rosen, 582 F.2d 1032, 1033 (5th Cir. 1978). Rosen

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listed as a single element of the offense that the dispensing be

done “other than for a legitimate medical purpose and in the

usual course of his professional practice.” Id. In Outler, the

narrow issue was whether this single element must be charged in

the indictment. Outler, 659 F.2d at 1308-09. Outler did not

address whether, to satisfy the element, the government must

prove that the dispensing was done both without a legitimate

medical purpose and outside the usual course of professional

practice. Indeed, Outler appears to use the phrases “without a

legitimate medical reason” and “beyond the course of professional

practice” interchangeably.7 Outler, therefore, does not support

Fuchs’s proposition.

We discern no plain error in either the indictment or the

jury instruction. “A ‘plain’ error is one [that] is clear under

current law.” United States v. Palmer, 456 F.3d 484, 491 (5th

Cir. 2006) (citing Russell v. Plano Bank & Trust, 130 F.3d 715,

722 (5th Cir. 1997)). Under current law, a medical professional

“can be prosecuted under § 841 when [his] activities fall outside

7

E.g., Outler, 659 F.2d at 1308 (“This claim is based on

the omission of any language alleging that Dr. Outler prescribed

drugs without a legitimate medical reason or beyond the course of

professional practice.”); id. at 1309 (“[A] physician may be

charged with a criminal violation of § 841(a) . . . whenever he

or she prescribes a controlled substance without a legitimate

medical reason. . . . [T]he qualifying condition of the offense,

i. e., the element of behavior beyond professional

practice . . . .”); id. (“Without behavior beyond professional

practice, there is no crime. We believe, therefore, that the

lack of a legitimate medical reason is . . . essential to the

offense . . . .”).

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the usual course of professional practice.” Moore, 423 U.S. at

124. There is no clearly established law in the Fifth Circuit

that the indictment and jury instructions must include a

reference to “legitimate medical purpose.” We therefore conclude

that the indictment and jury instruction were devoid of plain

error.

III. OTHER JURY INSTRUCTIONS

A. Standard of Review

“A properly objected-to instruction is reviewed for abuse of

discretion.” Freeman, 434 F.3d at 377 (citing Daniels, 281 F.3d

at 183). “We consider whether the instruction, taken as a whole,

‘is a correct statement of the law and whether it clearly

instructs jurors as to the principles of law applicable to the

factual issues confronting them.’” Id. (quoting Daniels, 281

F.3d at 183). “The trial court’s charge must not only be

‘legally accurate, but also factually supportable’; ‘the court

may not instruct the jury on a charge that is not supported by

the evidence.’” United States v. Mendoza-Medina, 346 F.3d 121,

132 (5th Cir. 2003) (quoting United States v. Lara-Velasquez, 919

F.2d 946, 950 (5th Cir. 1990)). “In deciding whether the

evidence reasonably supports the jury charge, the court ‘reviews

the evidence and all reasonable inferences that may be drawn

therefrom in the light most favorable to the government.’”

United States v. Newell, 315 F.3d 510, 528 (5th Cir. 2002)

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(quoting Daniels, 281 F.3d at 183).

Jury instructions that were not objected to are reviewed for

plain error. Rubio, 321 F.3d at 523. “Under the plain error

standard, we may reverse only if ‘(1) there was error (2) that

was clear and obvious and (3) that affected [the defendant’s]

substantial rights.’” United States v. Garcia Abrego, 141 F.3d

142, 165 (5th Cir. 1998) (quoting United States v. Dupre, 117

F.3d 810, 817 (5th Cir. 1997)).

B. Deliberate-Ignorance Instruction

Fuchs and Gonzales contend that the district court erred by

instructing the jury that it could find that a defendant’s

deliberate ignorance satisfied the knowledge requirement. They

challenge the deliberate-ignorance instruction on the ground that

the jury could have convicted them on the basis of negligence

rather than knowledge. Fuchs and Gonzales preserved this

argument by objecting to the instruction before the district

court; we therefore review for abuse of discretion.

Although the deliberate-ignorance instruction may present

the risk of conviction on the basis of negligence rather than

knowledge, we have consistently held that the instruction is

appropriate when the defendant claims he lacks the requisite

guilty knowledge and the proper factual basis exists for the

instruction. Newell, 315 F.3d at 528 (quoting Gray, 105 F.3d at

967). “The proper factual basis is present if the record

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supports inferences that ‘(1) the defendant was subjectively

aware of a high probability of the existence of illegal conduct;

and (2) the defendant purposely contrived to avoid learning of

the illegal conduct.’” Freeman, 434 F.3d at 378 (quoting United

States v. Scott, 159 F.3d 916, 922 (5th Cir. 1998)).

In the present case, the district court did not abuse its

discretion by including the deliberate-ignorance instruction.

First, both Fuchs and Gonzales argued to the jury that they did

not have the requisite guilty knowledge, i.e., that they did not

know that the manner in which they dispensed controlled

substances was outside the usual course of professional practice.

And second, the proper factual basis existed for the instruction.

Dr. Thompson testified that at some point Gonzales became part of

the “inner circle of discussion,” and that Gonzales was present

during conversations in which Dr. Thompson shared his concerns

about the legality of the pharmacy. Additionally, Weich

testified that, after he inspected Friendly, he informed Fuchs

that the prescriptions generated through the Internet were

invalid. After the inspection, Fuchs informed Friendly’s

employees that he was shutting down the pharmacy because its

practices were unlawful or improper. This evidence is sufficient

to support an inference that Fuchs and Gonzales were subjectively

aware of a high probability that Friendly’s procedure for

dispensing controlled substances was outside the usual course of

professional practice. And despite this awareness, there is no

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evidence that either Fuchs or Gonzales did additional research

prior to opening Main Street or took any steps to avoid unlawful

practices by operating Main Street substantially differently from

Friendly.8 This evidence is sufficient to support an inference

that Fuchs and Gonzales purposely contrived to avoid learning of

the illegal conduct. We therefore conclude that the district

court did not abuse its discretion in instructing the jury as to

deliberate ignorance.

C. Continuing Criminal Enterprise

Fuchs next contends that the district court improperly

instructed the jury with regard to the CCE count.

1. “Innocent Dupes” Instruction

As an element of CCE, the government must prove that Fuchs

organized, supervised, or managed five or more persons who acted

in concert with him. See 21 U.S.C. § 848(c)(2)(A); United States

v. Bass, 310 F.3d 321, 325-26 (5th Cir. 2002) (citing 21 U.S.C.

8

Fuchs’s and Gonzales’s reliance on United States v.

Hilliard, 31 F.3d 1509 (10th Cir. 1994) is misplaced. The Tenth

Circuit panel in Hilliard held that a deliberate-ignorance jury

instruction was improper because there was no evidence the

defendant contrived to avoid knowing his actions were unlawful.

After the defendant in Hilliard received a letter from a

government agency stating that his actions violated certain civil

regulations, the defendant forwarded the letter to his counsel,

who conducted research and issued an opinion contradicting the

agency’s position. Id. at 1512-13. Relying on his counsel’s

opinion, he continued the activity that was later determined to

violate the civil regulations. Id. at 1513. Hilliard is

distinguishable because here there is no evidence that either

Fuchs or Gonzales conducted additional research after learning of

TSBP’s position that Friendly’s prescriptions were invalid.

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§ 848(c); Garcia Abrego, 141 F.3d at 164). The “in concert with”

requirement implies that the five individuals must have agreed to

participate in the criminal enterprise. See Rutledge v. United

States, 517 U.S. 292, 299 n.10 (1996) (citing Jeffers v. United

States, 432 U.S. 137, 148-49 (1977)). Thus, an innocent

participant acting without criminal intent cannot be counted as

one of the five individuals in the CCE. United States v. Ward,

37 F.3d 243, 248 (6th Cir. 1994) (citing United States v. Smith,

24 F.3d 1230, 1234 (10th Cir. 1994)).

Fuchs posits that the district court erred by not including

an instruction specifically stating that “innocent dupes” cannot

be counted toward the five supervisees. Fuchs did not request

such an instruction at trial; we therefore review for plain

error. Rubio, 321 F.3d at 523.

We cannot say that the district court plainly erred by not

including a specific instruction concerning “innocent dupes.”

The district court instructed the jury that to convict Fuchs of

CCE it must find that he “undertook such violations in concert

with five or more other persons.” R. 364 (emphasis added). This

instruction tracks the language of both § 848 and the Fifth

Circuit Pattern Jury Charge. The “in concert with” language that

is present in both the instruction and the statute indicates that

the jury could count as supervisees only those individuals who

agreed with Fuchs to engage in the criminal conduct. See

Rutledge, 517 U.S. at 299 n.10. We therefore find no plain

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error.

2. Organizer/Supervisor/Manager Instruction

Fuchs additionally challenges the sufficiency of the

organizer/supervisor/manager jury instruction. He contends that

the court should have instructed the jury that the term

“organizer, supervisor, or manager” requires that he exercised

some form of managerial authority over the five individuals.

Without such an instruction, he suggests, the jury may have

convicted him on the basis of individuals who could not have been

supervisees as a matter of law. Because Fuchs did not object on

this basis before the district court, we review for plain error.

Although we acknowledge that a number of circuits have held

that § 848 requires some degree of managerial authority, see

Garcia Abrego, 141 F.3d at 166 n.11 (collecting cases), we have

not so held. In Garcia Abrego, we specifically declined to

consider whether any requirement of managerial authority applies

in the Fifth Circuit. Garcia Abrego, 141 F.3d at 166 n.11.

Since Garcia Abrego, we have made clear that a buyer/seller

relationship alone is insufficient. See Bass, 310 F.3d at 327.

We have also stated that “the terms ‘organized,’ ‘supervised,’

and ‘managed’ are not words of art and should be interpreted

according to their everyday meanings.” Id. (quoting United

States v. Gonzales, 866 F.2d 781, 784 (5th Cir. 1989)). But we

have not addressed any need for a showing of managerial

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authority.9

We have no occasion to decide the question in this case

either because our review here is for plain error. “A ‘plain’

error is one [that] is clear under current law.” Palmer, 456

F.3d at 491 (citing Russell, 130 F.3d at 722). Because the law

in the Fifth Circuit is not clear that managerial authority is

required for an individual to be an organizer or supervisor

within the meaning of the CCE statute, any error in not

instructing the jury as such is not plain error.

IV. SUFFICIENCY OF THE EVIDENCE

Fuchs, Gonzales, and Lemons contend that the district court

erred in denying their respective Rule 29 motions for judgment of

acquittal.

A. Standard of Review

We review de novo the district court’s denial of a properly

preserved motion for judgment of acquittal. United States v.

Anderson, 174 F.3d 515, 522 (5th Cir. 1999) (citing United States

9

We recognize that the 2001 version of the Fifth Circuit

Pattern Jury Charge includes an instruction as to managerial

authority: “The term ‘organizer, supervisor, or manager’ means

that the defendant was more than a fellow worker and that the

defendant either organized or directed the activities of five or

more other persons, exercising some form of managerial authority

over them.” COMMITTEE ON PATTERN JURY INSTRUCTIONS, DISTRICT JUDGES ASS’N

FIFTH CIR. PATTERN JURY INSTRUCTIONS (CRIMINAL CASES) 226-27 (2001)

(emphasis added). A note following the pattern instruction

states that the managerial-authority requirement is derived from

Garcia Abrego. But we reiterate that we explicitly did not

decide this question in Garcia Abrego, and we do not do so in

this case.

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v. Payne, 99 F.3d 1273, 1278 (5th Cir. 1996)). “In determining

whether there was sufficient evidence to sustain [the]

convictions, we must decide, viewing the evidence and the

inferences therefrom in the light most favorable to the verdict,

whether a rational juror could have found [the defendant] guilty

beyond a reasonable doubt.” Id. (citing United States v. Burton,

126 F.3d 666, 669 (5th Cir. 1997); Payne, 99 F.3d at 1278). “The

evidence need not exclude every reasonable hypothesis of

innocence or be wholly inconsistent with every conclusion except

that of guilt, and the jury is free to choose among reasonable

constructions of the evidence.” Id. (quoting Burton, 126 F.3d at

669-70). “Moreover, our standard of review does not change if

the evidence that sustains the conviction is circumstantial

rather than direct.” Id. (citing Burton, 126 F.3d at 670; United

States v. Cardenas, 9 F.3d 1139, 1156 (5th Cir. 1993); United

States v. Bell, 678 F.2d 547 at 549 n.3 (Former 5th Cir. 1982)).

B. Continuing Criminal Enterprise

Count two charged Fuchs with CCE in violation of 21 U.S.C.

§ 848. For a conviction under the CCE statute, the government

must prove that (1) the defendant organized, supervised, or

managed five or more persons (2) in a continuing series of drug

violations (3) from which the defendant obtained substantial

income. Bass, 310 F.3d at 325-26 (citing 21 U.S.C. § 848(c);

Garcia Abrego, 141 F.3d at 164).

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Fuchs contends that the government failed to present

sufficient evidence to prove the element of organizing,

supervising, or managing five or more persons. He maintains that

for an individual to count as one of the five supervisees, he

must have exercised control over the individual and the

individual must have had criminal intent. Fuchs concedes here,

as he did before the district court, that there was sufficient

evidence with regard to three individuals: Angela Fuchs, Lemons,

and Gonzales; therefore, we will affirm Fuchs’s CCE conviction if

there was sufficient evidence as to at least two additional

individuals. Fuchs disputes the district court’s conclusion that

there was sufficient evidence with respect to four additional

individuals: Dr. Thompson, Dr. Nelson, Shadid, and Myron

Thompson. As to Drs. Thompson and Nelson, Fuchs posits that they

cannot be regarded as supervisees because he did not exercise

control over them. And as to Shadid and Myron Thompson, Fuchs

opines that they did not have the requisite criminal intent.

We first consider whether a rational jury could have found

beyond a reasonable doubt that Myron Thompson and Shadid had the

requisite criminal intent to be supervisees within the meaning of

§ 848. As we noted supra at § III(C)(1), § 848’s “in concert

with” requirement implies that the five individuals must have

agreed to participate in the criminal enterprise, and an innocent

participant therefore cannot be counted as one of the five

individuals in the CCE.

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Myron Thompson testified that he and Fuchs opened Main

Street in Oklahoma. Prior to opening the pharmacy, Myron

Thompson had some concerns about its legality, and, despite

Fuchs’s assurances that it would be run in a lawful manner, he

continued to have reservations about whether all of his concerns

could be resolved. After the pharmacy opened in October 2000,

Myron Thompson’s concerns multiplied. He testified that within

the first two weeks he was concerned that the pharmacy was

issuing far more prescriptions (over 200 per day) than he felt

Dr. Nelson could have realistically been evaluating. He also

testified about other red flags: an unusually large percentage of

total prescriptions (around 70%) was for hydrocodone, Main Street

charged much higher prices than other pharmacies did, almost

every hydrocodone prescription was for 100 tablets, and the

average age of the customers was much younger than most other

pharmacies that dispensed a large percentage of pain medications.

He quickly concluded that the pharmacy was dispensing controlled

substances based on prescriptions written without a

doctor/patient relationship. He testified that at the end of two

weeks he told Fuchs that he was not comfortable with the

situation, and Fuchs told him that he would try to find a

replacement pharmacist. Myron Thompson continued working at Main

Street until Shadid replaced him on November 22, 2000. Based on

Myron Thompson’s testimony, we conclude that a rational jury

could have found beyond a reasonable doubt that he acted in

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concert with Fuchs during his final weeks at Main Street, after

he concluded the prescriptions were not based on a proper

doctor/patient relationship.

We also conclude that a rational jury could have found that

Shadid acted in concert with Fuchs. Shadid was the main

pharmacist at Main Street during most of the time it was open.

Shadid came into the pharmacy during Myron Thompson’s last two

days so that Myron Thompson could give him an overview of the

operation and the dispensing room. Myron Thompson testified that

he told Shadid during this time “that he would want to watch

closely if he had any legal concerns about anything at all[]

[and] that he should rely upon his own judgment and get his own

answers and not necessarily take [Fuchs’s] word for all things.”

Supp. R. 898. Jones, who worked at both Friendly and Main

Street, testified that the operation at Main Street while Shadid

was there was substantially the same as it was at Friendly.

Jones testified that a single physician——Dr. Nelson, who was

located in Oklahoma——approved most of the prescriptions for Main

Street, even though the pharmacy averaged 300 to 350

prescriptions per day. Based on the testimony of Myron Thompson

and Jones, the jury could have inferred that Shadid, a licensed

pharmacist, became aware of a high probability of risk that the

hydrocodone prescriptions were invalid. There was therefore

sufficient evidence for the jury to find that Shadid acted in

concert with Fuchs and was a supervisee within the meaning of

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§ 848.

Because we conclude that a rational jury could have found

beyond a reasonable doubt that Myron Thompson and Shadid were

supervisees acting in concert with Fuchs, we need not consider

whether Fuchs organized, supervised, or managed any of the

doctors associated with either of the pharmacies.

C. Conspiracy to Commit Money Laundering

1. Background

Count six charged that Fuchs and Gonzales conspired with Dr.

Ogle and others to commit money laundering10 in violation of 18

U.S.C. § 1956(h). To establish conspiracy to commit money

laundering, the government must prove (l) that there was an

agreement between two or more persons to commit money laundering

and (2) that the defendant joined the agreement knowing its

purpose and with the intent to further the illegal purpose.

United States v. Meshack, 225 F.3d 556, 573-74 (5th Cir. 2000)

(citing United States v. Threadgill, 172 F.3d 357, 366 (5th Cir.

1999)). “Direct evidence of a conspiracy is unnecessary; each

element may be inferred from circumstantial evidence.” United

States v. Casilla, 20 F.3d 600, 603 (5th Cir. 1994) (citing

Cardenas, 9 F.3d at 1157). “An agreement may be inferred from a

10

Although count six’s heading is “Money Laundering

(Violation of 18 U.S.C. § 1956 and 1957),” it is clear from the

text of the indictment that the grand jury charged Fuchs and

Gonzales with conspiracy to commit money laundering in violation

of 18 U.S.C. § 1956(h).

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‘concert of action.’” Id. (citing Cardenas, 9 F.3d at 1157;

United States v. Natel, 812 F.2d 937, 940 (5th Cir. 1987)). The

government need not prove an overt act in furtherance of the

conspiracy. Whitfield v. United States, 543 U.S. 209, 219

(2005).

The indictment alleged two objects of the conspiracy: (1)

laundering of monetary instruments in violation of 18 U.S.C.

§ 1956(a)(1)(A)(i) and (2) engaging in a monetary transaction in

property derived from specified unlawful activity in violation of

18 U.S.C. § 1957(a). Even if there was insufficient evidence as

to one of the objects of the conspiracy, we will nonetheless

uphold the conspiracy conviction if there was sufficient evidence

as to the other object. See United States v. Mann, 161 F.3d 840,

857 (5th Cir. 1998) (citing Griffin v. United States, 502 U.S.

46, 56-60 (1991)).

2. Analysis

Fuchs and Gonzales first challenge the sufficiency of the

evidence with regard to the second alleged object of the

conspiracy——engaging in monetary transactions in property derived

from specified unlawful activity in violation of § 1957(a). They

argue that the government failed to prove an agreement to violate

§ 1957 either through direct evidence of an agreement or through

ongoing § 1957 violations giving rise to an inference of an

agreement. Gonzales additionally maintains that there was

-25-

insufficient evidence that he knew the pharmacy was operating

illegally.

The bulk of Fuchs’s and Gonzales’s first argument relates to

the sufficiency of the evidence as to actual violations of

§ 1957. We note initially that the government need not have

proven an actual violation of § 1957; it is sufficient that the

government established that the defendant joined an agreement to

commit money laundering knowing the agreement’s illegal purpose

and intending to further that purpose. To the extent, however,

that the government used proof of ongoing § 1957 violations to

create an inference of an agreement to commit money laundering,

we review the sufficiency of the evidence demonstrating that

Fuchs and Gonzales violated § 1957.

The crime of engaging in monetary transactions in property

derived from specified unlawful activity in violation of

§ 1957(a) consists of three elements: (1) property valued at more

than $10,000 that was derived from a specified unlawful activity,

(2) the defendant’s engagement in a financial transaction with

the property, and (3) the defendant’s knowledge that the property

was derived from unlawful activity. United States v. Rodriguez,

278 F.3d 486, 490 (5th Cir. 2002) (citing United States v.

Wilson, 249 F.3d 366, 379 (5th Cir. 2001)). Where the financial

transaction involves an account commingling both “clean” and

“tainted” funds, “we have developed the rule that when the

aggregate amount withdrawn from [the] account . . . exceeds the

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clean funds, individual withdrawals may be said to be of tainted

money, even if a particular withdrawal was less than the amount

of clean money in the account.” United States v. Davis, 226 F.3d

346, 357 (5th Cir. 2000).

Relying on Davis, Fuchs and Gonzales contend that the

government did not prove financial transactions involving tainted

funds, i.e., proceeds from the sale of controlled substances.

The government presented evidence that in aggregate the

pharmacies’ accounts commingled approximately $3 million in

proceeds from the sale of non-controlled substances (clean

funds)11 and approximately $5.7 million in proceeds from the sale

of controlled substances (tainted funds). The government also

presented evidence of approximately $4 million in financial

transactions involving the pharmacies’ accounts, including $2.25

million in payments to Fuchs, $218,000 in property and cash to

Gonzales, and approximately $1.6 million in other transactions.

Because the total amount of the financial transactions ($4

million) exceeded the amount of clean funds ($3 million), the

government sufficiently demonstrated financial transactions

involving the proceeds of unlawful activity in violation of

§ 1957.

11

By referring to these proceeds as “clean funds,” we do

not mean to say that the pharmacies’ sale of non-controlled

prescriptions was appropriate or even lawful. We use this term

simply to differentiate them from proceeds derived from specified

unlawful activity as that term is used in § 1957.

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Gonzales additionally attempts to negate the second element

of the conspiracy count: that he knew the agreement’s purpose.

He alleges that there was insufficient evidence to show he knew

the pharmacy’s proceeds were derived from unlawful activity. But

in our discussion of the deliberate-ignorance jury instruction

supra at § III(B), we concluded that there was sufficient

evidence to support an inference that Gonzales was aware of a

high probability of the operation’s illegality yet deliberately

remained ignorant thereof. For this reason, we reject Gonzales’s

argument that he lacked knowledge.

Because there was sufficient circumstantial evidence from

which a rational jury could have inferred both an agreement to

violate § 1957 and the defendants-appellants’ knowledge of the

agreement, we need not address the sufficiency of the evidence as

to conspiracy to violate § 1956(a)(1)(A)(i). See Mann, 161 F.3d

at 857 (citing Griffin, 502 U.S. at 56-60). We therefore affirm

the district court’s denial of the motions of judgment of

acquittal as to count six.

D. Conspiracy to Distribute a Controlled Substance

Count one charged that Lemons conspired with Fuchs,12 Dr.

Speak, Dr. Ogle, and others to dispense and possess with intent

to dispense hydrocodone, a Schedule III controlled substance, not

12

As we noted, Fuchs was also charged in count one and was

convicted of conspiracy to distribute a controlled substance. On

the government’s post-trial motion, however, the district court

dismissed count one as to Fuchs.

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in the usual course of professional practice, in violation of 21

U.S.C. § 846.13 Lemons challenges the sufficiency of the

evidence with regard to his involvement in the conspiracy.

To prove the offense of conspiracy to distribute a

controlled substance, the government must establish (1) the

existence of an agreement between two or more persons to violate

narcotics laws, (2) the defendant’s knowledge of the conspiracy,

and (3) the defendant’s voluntary participation in the

conspiracy. Arnold, 416 F.3d at 358-59 (citing United States v.

Thomas, 348 F.3d 78, 82 (5th Cir. 2003)). “Direct evidence is

not required; each element may be inferred from circumstantial

evidence.” Cardenas, 9 F.3d at 1157 (citing United States v.

Espinoza-Seanez, 862 F.2d 526, 537 (5th Cir. 1988)). The

defendant’s knowledge of and participation in the conspiracy may

be “inferred from a ‘collection of circumstances.’” Id. (quoting

Espinoza-Seanez, 862 F.2d at 537; United States v. Vergara, 687

F.2d 57, 61 (5th Cir. 1982); United States v. Marx, 635 F.2d 436,

439 (5th Cir. Jan. 1981)). “Mere presence or association alone,

however, [is] not sufficient to prove participation in a

conspiracy.” United States v. Turner, 319 F.3d 716, 721 (5th

Cir. 2003) (citing United States v. Bermea, 30 F.3d 1539, 1551

13

21 U.S.C. § 846 provides: “Any person who attempts or

conspires to commit any offense defined in this subchapter shall

be subject to the same penalties as those prescribed for the

offense, the commission of which was the object of the attempt or

conspiracy.”

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(5th Cir. 1994)). “Likewise, ‘the government may not prove up a

conspiracy merely by presenting evidence placing the defendant in

a climate of activity that reeks of something foul.’” United

States v. Mendoza, 226 F.3d 340, 343 (5th Cir. 2000) (quoting

United States v. Maltos, 985 F.2d 743, 746 (5th Cir. 1992)

(internal quotation marks omitted)). “Nevertheless, a court may

consider a defendant’s presence or association with a conspiracy

as evidence of participation along with other circumstantial

evidence.” Id. (citing Cardenas, 9 F.3d at 1157).

Lemons challenges the sufficiency of the evidence with

regard to his knowing participation in the conspiracy; that is,

he contends there was insufficient evidence with regard to the

second and third elements. He maintains that he was not a member

of the pharmacy’s “inner circle,” that he did not share in the

pharmacy’s profits but rather was paid a salary, and that he was

thus nothing more than a conscientious, yet unwitting, pharmacist

working in a “climate of activity that reeks of something foul.”

Lemons, a licensed pharmacist, worked at Friendly from April

2000 to September 2000. Testimony from various witnesses

established that during this period the pharmacy dispensed over

1,000 prescriptions monthly for controlled substances; a very

large percentage of the pharmacy’s total prescriptions was for

hydrocodone and other controlled substances; the prescriptions

were initiated by orders sent to the pharmacy via its web site;

the pharmacy’s customers were located throughout the United

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States; the pharmacy completed the prescription forms and

forwarded them to physicians for approval and signature; Dr.

Thompson was the approving physician for nearly all these

prescriptions; Dr. Thompson was not paid by the customers, but

rather was paid per each prescription filled by the pharmacy; the

dosage for most prescriptions was standardized rather than

tailored for each patient; the pharmacy’s prices for drugs were

exceedingly higher than average; and the pharmacy did not accept

insurance. Dr. Thompson testified that the circumstances at the

pharmacy were such that it should have been obvious to anyone

working there that he did not have a valid physician/patient

relationship with the customers for whom he was approving

prescriptions for controlled substances. And Humphreys testified

that Lemons expressed to him some concern about the pharmacy’s

legality. A rational jury could have found from this

circumstantial evidence that Lemons knew of an agreement to

unlawfully distribute controlled substances.

Additionally, Lemons’s knowing participation in the

conspiracy is evidenced by his untruthfulness to the TSBP

inspector. Weich testified that Lemons was the first person he

spoke with when he arrived at Friendly for the August 2000

inspection. When Weich noticed the high volume of unusual drugs

being dispensed, he asked Lemons about the pharmacy’s customer

base. Instead of acknowledging that the Internet was the source

of the vast majority of Friendly’s customers, Lemons responded

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that the pharmacy’s customers came from the neighborhood and a

rehab center in the same shopping center. Were Lemons merely an

unwitting pharmacist working in a “climate of activity that reeks

of something foul,” as he purports to have been, he presumably

would have had no reason to lie to Weich about the customer base.

The jury could have inferred from this that Lemons was aware of

the conspiracy and lied to Weich in order to conceal it.

Accordingly, we conclude that, with respect to Lemons, a

rational jury could have found beyond a reasonable doubt each of

the elements of conspiracy to dispense a controlled substance

outside the usual course of professional practice.

V. RULE 33 MOTIONS FOR A NEW TRIAL

After their convictions, Fuchs and Gonzales timely filed

Rule 33 motions for a new trial. They now appeal the district

court’s denial of their motions.14

A. Weight of the Evidence

Fuchs and Gonzales asserted as one ground for their new-

trial motions that the verdict was against the weight of the

evidence. They now contend that, in deciding the motions, the

district court improperly applied the standard for a Rule 29

motion for judgment of acquittal. We review for abuse of

discretion the denial of a new-trial motion challenging the

14

Lemons also filed a motion for new trial, but he does not

appeal the district court’s denial of his motion.

-32-

weight of the evidence. United States v. Infante, 404 F.3d 376,

387 (5th Cir. 2005).

The district court considered together Fuchs’s and

Gonzales’s motions for judgment of acquittal and for a new trial.

In deciding the motions, the court viewed the evidence in the

light most favorable to the verdict, and it denied the motions on

the basis that there was sufficient evidence to support the

verdict. Viewing the evidence in the light most favorable to the

verdict is tantamount to ruling on a motion for judgment of

acquittal rather than a new-trial motion. United States v.

Robertson, 110 F.3d 1113, 1117 (5th Cir. 1997). On a motion for

new trial, the court may weigh the evidence and consider the

credibility of witnesses. Id. (citing Tibbs v. Florida, 457 U.S.

31, 37-38 (1982)). The district court therefore erred by

applying the incorrect standard to the new-trial motions.

Nonetheless, we decline to set aside the district court’s

denial of the new-trial motions because it would have been an

abuse of discretion had the district court granted them.

Although the district court has broad discretion to decide a Rule

33 motion, the court may not grant the motion unless the evidence

preponderates heavily against the verdict such that it would be a

miscarriage of justice to let the verdict stand. Arnold, 416

F.3d at 360. There was more than sufficient evidence of Fuchs’s

and Gonzales’s guilt, and the evidence did not approach

preponderating against the verdict. We therefore affirm the

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district court’s denial of the Rule 33 motions for new trial.

B. Ineffective Assistance of Counsel

Fuchs contends that the district court should have granted

his Rule 33 motion for a new trial because he received

ineffective assistance of counsel at trial.15 He asserts that

his trial counsel was ineffective on two grounds: (1) his counsel

failed to request a jury instruction that “innocent dupes” cannot

be counted as supervisees in the criminal enterprise and (2) his

counsel inaccurately advised him that the mandatory minimum

sentence for a CCE conviction was ten years.

A claim of ineffective assistance of counsel presents a

mixed question of law and fact. Riley v. Dretke, 362 F.2d 302,

305 (5th Cir. 2004) (citing Lockett v. Anderson, 230 F.3d 695,

710 (5th Cir. 2000)). The district court’s findings of fact are

reviewed for clear error, and its conclusions of law are reviewed

de novo. Id. (citing Beazley v. Johnson, 242 F.3d 248, 255 (5th

Cir. 2001)). A factual finding is clearly erroneous if, although

there is evidence to support it, after viewing the record we are

“left with the definite and firm conviction that a mistake has

15

In the usual case, where a defendant’s ineffective-

assistance-of-counsel claim is not presented before the district

court, we generally decline to address the claim on direct

appeal. See, e.g., United States v. Gonzales, 436 F.3d 560, 581

(5th Cir. 2006). But this is not the usual case in this regard.

After his convictions, Fuchs discharged his trial counsel, and

his new counsel argued in the motion for new trial that Fuchs’s

trial counsel were ineffective. We therefore will address

Fuchs’s claim on direct appeal.

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been committed.” United States v. U.S. Gypsum Co., 333 U.S. 364,

395 (1948).

Both of Fuchs’s ineffective-assistance-of-counsel claims are

governed by the standard set forth in Strickland v. Washington,

466 U.S. 668 (1984). To prevail, Fuchs must make two showings.

First, he must demonstrate that his trial counsel’s performance

fell below an objective standard of reasonableness. See

Strickland, 466 U.S. at 687-88. And second, he must show that

his counsel’s unreasonable performance prejudiced him, i.e., that

the errors were so serious as to deprive him of a fair trial with

a reliable result. See id. at 687.

Fuchs has not demonstrated that his trial counsel’s failure

to request an “innocent dupes” jury instruction was objectively

unreasonable. As we noted supra at § III(C)(3), the district

court’s CCE instruction tracked the language of the Fifth Circuit

Pattern Jury Charge. And the district court’s charge included an

instruction that the five supervisees must have acted “in concert

with” Fuchs. Fuchs’s trial counsel could reasonably have

concluded that the jury instruction was adequate. Fuchs has

therefore failed to demonstrate Strickland’s first prong.

Fuchs also has not made the required showing as to his claim

of ineffective counsel on the ground that his trial counsel

erroneously informed him that the statutory minimum sentence for

a CCE conviction is ten years’ imprisonment. Fuchs contends

that, had he been accurately informed that the minimum sentence

-35-

was twenty years’ imprisonment, it would have affected his

decision whether to accept a plea offer. The district court

conducted an evidentiary hearing and made a factual finding that

Fuchs’s counsel had not improperly advised him as to the

mandatory minimum sentence. After reviewing the record, we are

not left with the definite and firm conviction that the district

court’s finding is erroneous. Fuchs’s trial counsel——John H.

Read II and Danny D. Burns——both testified that they informed

Fuchs of the twenty-year mandatory minimum sentence. Burns

testified that he had told Fuchs about a theory he had to bring

the minimum down to ten years but that Fuchs should operate off

the assumption that the minimum was still twenty years. The

district court found that C. Tony Wright——who was Gonzales’s

counsel and negotiated with the government on both Gonzales’s and

Fuchs’s behalf——subjectively believed the minimum to be ten

years’ imprisonment, but the court found that Wright’s belief was

not necessarily the same as Fuchs’s. We conclude that the

district court did not clearly err in crediting the testimony of

Fuchs’s trial counsel and finding that Fuchs had been properly

informed of the mandatory minimum sentence. Fuchs therefore has

not established the first prong of his Strickland challenge.

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C. Inappropriate Telephone Call

After his conviction, Fuchs alleged that during trial his

counsel received an improper telephone call from the court’s

security officer. Fuchs averred that, approximately two days

into the defense’s case, the court’s security officer called

Fuchs’s counsel and advised him that the defense should rest

quickly because jurors were becoming agitated by repetitive

defense testimony and because he had overheard certain jurors

expressing that the government had not proved its case.

In his post-trial motions, Fuchs argued before the district

court that the improper phone call warranted a new trial because

it affected his counsel’s decision whether to present additional

evidence and his decision whether to testify. The district court

conducted an evidentiary hearing and made factual findings, which

we review for clear error. The court assumed arguendo that the

phone call had taken place, it found that the call did not affect

any decision that was made, and it denied Fuchs’s motion on this

basis.

Fuchs argues before this court that we should remand for a

factual finding as to whether the phone call actually transpired.

He posits that his trial counsel may have lied to him about the

phone call as part of an elaborate ruse to convince him not to

testify. He opines that we should remand for a finding because

if the call did not occur, then his trial counsel lied to him,

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thereby depriving him of his right to effective counsel.

After reviewing the record, we conclude that the district

court did not clearly err in finding that the occurrence or non-

occurrence of the phone call did not affect Fuchs’s decision

whether to testify. Even if on remand the district court were to

find that the call did not take place, it would not affect the

outcome of Fuchs’s new-trial motion. Because remanding would be

superfluous, we decline to do so on this basis.

VI. ADMISSIBILITY OF EVIDENCE

Finally, Fuchs and Gonzales contend that the district court

erred in permitting the government to offer testimony showing

that two randomly chosen pharmacies filled far fewer

prescriptions for controlled substances than did Fuchs’s

pharmacies. The government offered into evidence a chart

comparing the number of hydrocodone tablets dispensed at Friendly

over a fourteen-month period with the number of hydrocodone

tablets dispensed at two local pharmacies in Garland, Texas over

the same period. The chart showed that the local pharmacies

dispensed 165,200 and 256,450 tablets respectively and that

Friendly dispensed 3,243,900 tablets. All three defendants

objected on the ground that the chart was barred by FED. R. EVID.

403. The district court overruled the defendants’ objections and

admitted the chart into evidence.

We review the district court’s evidentiary decisions for

-38-

abuse of discretion. United States v. Hicks, 389 F.3d 514, 522

(5th Cir. 2004) (citing United States v. Pace, 10 F.3d 1106, 1115

(5th Cir. 1993)). Even if the district court erroneously

admitted prejudicial evidence, we will not reverse the conviction

if the error was harmless. Id. (citing Pace, 10 F.3d at 1116)).

Fuchs and Gonzales maintain that the chart should not have

been admitted because its probative value was substantially

outweighed by its prejudicial effect. Relying on United States

v. Seelig, 622 F.2d 207 (6th Cir. 1980), they argue that the

chart had little probative value because it compared local,

neighborhood pharmacies with an Internet pharmacy having

customers throughout the United States without making any attempt

to compare the pharmacies in terms of total sales.

We need not decide whether the district court abused its

discretion in admitting the chart because we conclude that its

admission, even if erroneous, was nonetheless harmless. The

chart was offered to show that the defendants should have known,

based on the comparatively high volume of controlled substances

being dispensed at Friendly, that the physicians and pharmacists

were acting outside the usual course of professional practice.

As we have discussed, there was ample other evidence from which

the jury could have inferred the defendants’ guilty knowledge.

Any error in admitting the chart was therefore harmless.

-39-

VII. CONCLUSION

For the foregoing reasons, the defendants-appellants’

convictions are AFFIRMED.

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