UNITED STATES OF AMERICA v. CAESAR MARK CAPISTRANO; ETHEL OYEKUNLE-BUBU; WILKINSON OLOYEDE THOMAS
No. 21-10620
United States Court of Appeals, Fifth Circuit
July 25, 2023
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.
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 exchаnge 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
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 sufficiеncy 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
1.
Bubu challenges two counts of possession with intent to distribute controlled substances in violation of
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
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 pharmaсy. 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”
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
3.
To sustain a conviction for conspiracy under
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
B.
In sum, our highly deferential rеview 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
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
This Court then decided United States v. Ferris, which applied Ruan to pharmacist violations of
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 mеdicine, measured objectively.”51
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.
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
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
Lastly, Capistrano argues that “the trial court did not clearly explain nor adequately define to the jury what good faith means.” The district сourt‘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.
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 electiоn to forgo counsel, “‘a court should not quickly infer that a defendant unskilled in the law has waived
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, оr you‘re going to proceed pro se.” Cooper explained there was “some conflict”
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 сhoose 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
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
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
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
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
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 dеfendants 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
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
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 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, either explicitly or implicitly, between becoming familiar with someone‘s
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.
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 cаst 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[,]”
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
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
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
AFFIRMED.
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 сarriage 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.
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
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
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
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.
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 sentеnce it confesses is illegal.
With respect, I must DISSENT from affirming Bubu‘s sentence for Count 3.