UNITED STATES OF AMERICA v. JONATHAN JEFFERSON FERRIS
No. 22-50117
United States Court of Appeals, Fifth Circuit
October 25, 2022
FILED October 25, 2022 Lyle W. Cayce Clerk
Appeal from the United States District Court for the Western District of Texas USDC No. 6:19-CR-288-1
Before STEWART, DENNIS, and HIGGINSON, Circuit Judges.
Jonathan Ferris (“Ferris“) appeals his conviction for violation of
I. Background
A. Ferris‘s Initial Arrest and Conviction
Ferris, a New York resident, made a call to King‘s Daughters Pharmacy (“King‘s Daughters“) in Temple, Texas in July 2019. Anthony Collins (“Collins“), the owner of King‘s Daughters, answered Ferris‘s call and confirmed his ability to fill out-of-state prescriptions. Two days later, Ferris made the trip to Temple and worked with Melinda Jones (“Jones“) to fill his prescription for fentanyl patches. Jones was the pharmacy clerk on duty with Collins out of town. She did not question Ferris or his business at King‘s Daughters because Collins left instructions for her to fulfill Ferris‘s prescription. Ferris entered King‘s Daughters donning a Federal Bureau of Investigation (“FBI“) lanyard with an identification card showing his picture with the FBI‘s seal. While waiting for the pharmacist on duty to fill his prescription, Ferris told Jones that he had been injured on the job and would bring her an FBI lapel pin the next time he returned to King‘s Daughters.
A week later, Ferris returned to King‘s Daughters with an FBI-stamped envelope containing another prescription for fentanyl patches. Collins was present on this visit and was surprised at Ferris‘s quick return for additional patches. Collins made a call to the office of the doctor who wrote Ferris‘s prescription to confirm its validity
Ferris returned to King‘s Daughters four days later. He presented another FBI-stamped envelope, this time with three prescriptions for fentanyl patches. Collins noticed that two of the prescriptions were illegally postdated. He called the prescribing doctor in New York again, confirmed the prescriptions’ authenticity, and only filled the non-postdated prescription. Ferris attempted to persuade Collins to fill the postdated prescriptions by explaining that the FBI was sending him additional patches on a plane from New York. Even still, Collins refused to fill the two postdated prescriptions.
Before leaving with his fentanyl patches, Ferris told Collins to let him know if he ever ran into problems with the Board of Pharmacy because Ferris would be able to smooth things over for him. At this point, Collins was sufficiently disturbed by Ferris‘s statement and behavior and decided it was best that he contact the local FBI field office to confirm Ferris‘s identity. Upon doing so, Collins discovered that Ferris never actually worked for the FBI. After that revelation, Collins reported Ferris‘s transactions at King‘s Daughters to several federal authorities. Relying on the information obtained from Collins, the FBI executed a search of Ferris‘s residence in Cedar Park, Texas, discovering fake FBI credentials in his name, among other contraband.
Ferris was later charged with impersonating an FBI agent, in violation of
B. Ferris‘s Sentencing
Ferris‘s presentence investigation report (“PSR“) noted that he committed the false impersonation offense in facilitation of drug-trafficking. Consequently, the PSR applied the cross-reference in
Ferris objected to the application of the cross-reference provision, claiming that he had a valid prescription for the fentanyl patches, so he did not commit any drug-trafficking offenses. Accordingly, he contended that his base offense level should have only been six under
On appeal, Ferris argues that the district court failed to instruct the jury on the overt-act element of his false impersonation offense by declining to adopt his proposed jury charge, and that this error was not harmless. Additionally, he contends that the district court erred in applying the cross-reference provision in
II. Standard of Review
We review “a district court‘s refusal to provide a requested jury instruction for an abuse of discretion.” United States v. Wright, 634 F.3d 770, 775 (5th Cir. 2011). However, “when the instruction is claimed to misstate an element of the offense, review is de novo, subject to harmless-error review.” United States v. Sanchez, 502 Fed App‘x 375, 381 (5th Cir. 2012) (citing United States v. Guevara, 408 F.3d 252, 257 (5th Cir. 2005)). “Erroneous jury instructions are harmless if a court, after a thorough examination of the record, is able to conclude beyond a reasonable doubt that the jury verdict would have been the same absent the error.” United States v. Stanford, 823 F.3d 814, 828 (5th Cir. 2016) (internal quotations omitted).
We review “the district court‘s factual findings for clear error and its interpretation and application of the [sentencing] guidelines, including any cross-reference provisions, de novo.” United States v. Griego, 837 F.3d 520, 522 (5th Cir. 2016) (citing United States v. Arturo Garcia, 590 F.3d 308, 312 (5th Cir. 2009)).
III. Discussion
A. Jury Instructions
Whoever falsely assumes or pretends to be an officer or employee acting under the authority of the United States or any department, agency or officer thereof, and acts as such, or in such pretended character demands or obtains any money, paper, document, or thing of value, shall be fined under this title or imprisoned not more than three years, or both.
This court has generally split
First, we address Ferris‘s argument that the district court reversibly erred in adopting the Government‘s jury charge—in the absence of a pattern jury charge. According to Ferris, because the district court failed to give his proposed jury instruction, it effectively eliminated the Government‘s burden of proving the “acts as such” element of his alleged offense. The Government offered the following jury instructions for Ferris‘s
First, that the defendant falsely assumed or pretended to be an officer or employee acting under the authority of the United States;
Second, that while acting in such an assumed or pretended character, the defendant committed any act;
Third, defendant did so knowingly with intent to defraud.
Finally, to act with intent to defraud means to act by intent or with intent by artifice and deceit, to cause another to cause some course he or she would not have pursued but for said deceitful conduct.
Ferris does not dispute that the first or third elements were satisfactorily explained to the jury. He does, however, take issue with the second element. For this reason, we only evaluate whether “the defendant committed any act” aligns with the statute‘s requirement that the defendant “acts as such.” See
Ferris offered the following jury instruction regarding the “acts as such” requirement in the second prong: “Mr. Ferris committed an overt act that asserted authority as a Special Agent of the Federal Bureau of Investigation.” He contends that his proffered charge properly articulated
First, his requested jury charge—that the jury consider whether he committed “an overt act that asserted authority” as an FBI agent—contradicts our holding in Cohen. See Cohen, 631 F.2d at 1224 (requiring that the jury consider whether the defendant engaged in “any overt act consistent with the assumed character“). If the district court adopted Ferris‘s instruction, it would have tasked the jury with finding that Ferris literally asserted the authority of an FBI agent, instead of merely engaging in acts “consistent with” his impersonation of an FBI agent. Id. Essentially, Ferris asks this court to exchange the Government‘s likely incorrect jury charge for his own undoubtedly incorrect jury instruction—an instruction that squarely conflicts with our decision in Cohen.
Second, Ferris never called for the jury to contemplate whether he committed any act or an overt act consistent with his impersonation of a federal agent. Put another way, nothing in the record indicates that the jury convicted him due to a misunderstanding of what was required under the second prong of
To be clear, the record fully supports Ferris‘s conviction under
B. Cross-referencing
On this issue, Ferris claims that the district court misapplied the cross-reference provision in
In support of its position, the Government primarily makes a fact-intensive argument, highlighting a string of questionable conduct by Ferris to argue the plausibility of his attempted drug-trafficking through King‘s Daughters. Its argument focuses on: (1) Ferris‘s repeated visits to King‘s Daughters and requests for an increased dosage of fentanyl each time; (2) his repeated efforts to deceive the employees at King‘s Daughters of his status as an FBI agent; and (3) his pressuring Collins to fill postdated prescriptions even after Collins initially refused to do so. As the Government sees it, Ferris‘s actions were merely part of an elaborate scheme to make King‘s Daughters employees believe that he was a federal agent, so that he could exploit that status and cause the pharmacy to over-dispense fentanyl prescriptions.
Here, the record fails to support the Government‘s argument that Ferris attempted to traffic fentanyl. For the Government to prevail on its theory that Ferris‘s false impersonation was done in facilitation of violating
The Supreme Court‘s recent decision in Ruan provides timely guidance on how we evaluate the requisite state of mind for a pharmacist‘s violation of
Applying Ruan here, there is no evidence on this record that Collins did anything but perform his routine medical function for Ferris, having only issued authorized prescriptions to him. None of the prescriptions that Ferris brought to King‘s Daughters were unauthorized in a manner inconsistent with Ruan. Even the postdated prescriptions—which Collins never filled for Ferris—were technically authorized because they were validly issued by an out-of-state doctor.5 As the Court acknowledged in Ruan, “authorization plays a ‘crucial role’ in separating innocent conduct—and, in the case of doctors, socially beneficial conduct—from wrongful conduct.” Id. (quoting United States v. X-Citement Video, 513 U.S. 64, 73 (1994)). Here, Collins contacted the prescribing doctor in New York prior to filling Ferris‘s prescriptions, received confirmation that the prescriptions were all valid, and refused to fill the postdated prescriptions. Like the pharmacists in Ruan, there is no evidence that Collins knowingly or intentionally filled unauthorized prescriptions for a patient. Nor is there evidence that he accidentally filled unauthorized prescriptions. Instead, the record demonstrates that he merely operated in the usual course of his profession when filling Ferris‘s authorized prescriptions. Because Collins‘s actions did not violate
The Government further contends that Ferris amassed his fentanyl prescriptions for the purpose of drug-trafficking. If that were the case, it argues that Ferris is guilty of attempting to persuade an unknowing Collins of over-dispensing fentanyl for the purposes of drug-trafficking, and such violation while impersonating an FBI agent triggers the cross-reference provision in
Ferris sought rapid fulfillment of his prescriptions for later drug-trafficking. At best, the record suggests that Ferris was personally abusing his validly authorized fentanyl prescriptions.6 Second, the record indicates that Ferris had a legitimate medical diagnosis and prescription for fentanyl patches years before entering King‘s Daughters or interacting with Collins. Without evidence to the contrary, the Government cannot reasonably claim that Ferris suddenly decided to begin trafficking his fentanyl patches. Lastly, this court has repeatedly held that “something more” is required to turn simple drug transactions into drug-trafficking or a conspiracy to traffic. See, e.g., United States v. Delgado, 672 F.3d 320, 333–335 (5th Cir. 2012) (reasoning that Delgado‘s dealings were more than simple buy-sell transactions because the evidence demonstrated that he “knowingly participated in a plan to distribute drugs“); see also United States v. Chapman, 851 F.3d 363, 377 (5th Cir. 2017) (noting that “simple drug transactions between a buyer and seller alone do not amount to a drug conspiracy“). The record here only demonstrates that Ferris engaged King‘s Daughters in a series of “simple buy-sell transaction[s],” lacking
IV. Conclusion
For the foregoing reasons, we AFFIRM Ferris‘s conviction under