Case Information
*1 Before KING, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM: [*]
Aftеr a partial acquittal in his first trial, Defendant Nick C. Tran, a pharmacist, was convicted in a second trial of charges related to the distribution of controlled substances outside the scope of professional practice. The district court denied his post-verdict motion for a judgment of acquittal or, in the alternative, for a new trial. He now appeals that denial on the grounds that: (1) his second trial violated the Double Jeopardy Clause; (2) the court erred in excluding evidence of racial bias on the part of Government investigators; and (3) the court erred in refusing him permission to recall a Government witness. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND Nick C. Tran was a licensed pharmacist who owned and operated a business called Tran’s Pharmacy in Biloxi, Mississippi. Over time, Tran’s Pharmacy filled an increasing number of its prescriptions from the Family Medical Center, a medical practice operated by Drs. Thomas Trieu and Thu-Hoa Victoria Van. By 2007, the Family Medical Center accounted for ninety-eight percent of the pharmacy’s controlled substance prescriptions. Prescriptions for these highly abused substances—namely promethazine with codeine (a narcotic cough syrup), alprazolam (also known by its brand name “Xanax”), and hydrocodone (also known by its brand name “Lortab”)—written by Dr. Trieu and filled at Tran’s Pharmacy—rose from a few hundred to seven or eight thousand between 2003 and 2007. Thе Family Medical Center and Tran’s Pharmacy also saw a large increase in out-of-market patients, including some from neighboring Alabama.
The Drug Enforcement Agency (“DEA”) began investigating the Family Medical Center and Tran’s Pharmacy and eventually raided both businesses, arresting Tran as well as the two doctors. Tran was indicted on forty-three separate counts of dispensing or distributing controlled substances outside the scope of professional practice, ninе counts of dispensing or distributing controlled substances outside the scope of professional practice to persons under 21 years of age, one count of conspiracy to dispense or distribute such substances outside the scope of professional practice, and one count of maintaining a place for the purpose of manufacturing, distributing, or using any controlled substance outside the scope of professional рractice.
After a two-week trial in March 2010, the jury acquitted Tran of the forty- three counts alleging dispensing or distributing controlled substances outside the scope of professional practice. However, the jury failed to reach a verdict on the conspiracy charge, the premises charge, and the nine counts concerning the dispensing or distributing controlled substances to individuals under the age of 21.
Following this partial acquittal, Tran moved on double jeopardy grounds to dismiss those portions of the indictment on which the jury failed to reach a verdict. The court denied this motion. Tran was re-indicted on the conspiracy charge, the premises charge, eleven counts of dispensing or distributing controlled substances outside the scope of professional practice to persons under 21 years of age, and eleven counts of dispensing or distributing controlled substances that were different from the forty-three counts in the previous indictment on which he was acquitted. The district court denied Tran’s motion to quash this second indictment on double jeopardy grounds, and the case went to trial.
After the second jury found Tran guilty on all counts, Tran moved for a judgment of acquittal or, in the alternative, for a new trial on the following assignments of error: (1) the second trial violated his constitutional protection against double jeopardy; (2) he should have been permitted to introduce evidence supporting his theory that he was targeted for prosecution because of his ethnicity; and (3) he should have been permitted to recall a Government witness to address matters not covered during the Government’s direct examination of that witness. The district court denied this motion, and Tran was sentenced to ten years’ imprisonment and four years’ supervised release. He now appeals from the district court’s order denying his motion for a judgment of acquittal or, in the alternative, for a new trial.
DISCUSSION
I. Double Jeopardy
Tran argues that his conviction must be reversed because his second trial
violated his Fifth Amendment right to be free of double jeopardy. This court
reviews
de novo
the constitutional issue of double jeopardy.
United States v.
Cluck
,
The question whether Tran’s second trial violated the Double Jeopardy Clause is governed by Ashe v. Swenson , 397 U.S. 436 (1970). In Ashe , the petitioner (Ashe) was accused of participating in the robbery of a group of poker players and was indicted for the robbery of one of the plаyers. Id. at 437–38. The only contested issue at trial was whether he had actually been one of the robbers. Id. at 438. Ashe was acquitted, but the state later separately indicted him for the robbery of another one of the poker players. Id. at 439. The second jury convicted. Id. at 440. The Supreme Court held that the Double Jeopardy Clause incorporates the doctrine of collateral estoppel, and thereby precludes the government from relitigating any issue that was necessarily decided by a jury’s acquittal in a prior trial. Id. at 445–47. Straightforward application of this principle led to the conclusion that Ashe’s second prosecution violated his constitutional protection against double jeopardy because it relitigated the conclusion—necessarily decided by the jury in the first trial—that Ashe had not been one of the robbers. Id. at 445.
This court has interpreted
Ashe
to require a twofold inquiry for analyzing
double jeopardy claims. First, the court must determine what, if anything, the
jury necessаrily decided in the first trial.
Bolden v. Warden, W. Tenn. High Sec.
Facility
,
Tran characterizes the first inquiry as a simple one because he alleges that he only contested one issue at trial: whether his actions were knowing or intentional. According to Tran, the jury’s acquittal on the forty-three counts alleging distribution to specific persons age 21 and over was a general determination that Tran did not have the intent to distribute controlled substances outside the scope of his professional practice to anyone at any time during the relevant conspiracy period. Tran concludes that the Government is thus barred from retrying him on any charge during the time frame of the alleged conspiracy that relies on the theory that Tran’s dispensations of controlled substances occurred knowingly and intentionally.
The Government argues that Tran contested more than the elеment of intent, pointing to Tran’s arguments that the DEA agents targeted him because of his race, his challenges to the Government’s use of undercover agents, and his attempts to otherwise show that the undercover agents’ actions involved offensive conduct. The Government therefore suggests that the jury’s acquittals as to individuals age 21 and older may have reflected a decision other than a determination that Tran lacked the intent to distribute to those persons, arguing that “it is entirely conceivable that the jurors—dissatisfied with the undercover aspect of the Government’s case and unable to recall which counts were associated with the undercover agents—simply chose to vote to acquit as to all counts involving persons age 21 and over based on the assumption that DEA agents are necessarily at least age 21.”
Neither of these arguments is persuasive. Because the jury failed to reach
a vеrdict as to whether Tran participated in a conspiracy to distribute controlled
substances outside the scope of his professional practice, Tran is foreclosed from
arguing that the jury thereby necessarily determined that he lacked intent to
distribute such substances during the entire time frame of the conspiracy.
See
Yeager v. United States
, — U.S. —,
As for the Government’s argument, this court’s inquiry into the potential
rationale of the jury “must proceed on the basis that the jury in the first trial
acted in a legally correct manner.”
De La Rosa v. Lynaugh
, 817 F.2d 259,
267–68 (5th Cir. 1987);
see also Ashe
, 397 U.S. at 444 (courts must conclude
whether “a rational jury could have grounded its verdict upon an issue other
than that which the defendant seeks to foreclose from consideration” (citation
and internal quotation marks omitted) (emphasis added));
Garcia v. Dretke
, 388
F.3d 496, 504 (5th Cir. 2004) (for double jeopardy purposеs, a court’s analysis
“must stay within the bounds of a rational[ ] inquiry”). As this court reasoned
in
United States v. Leach
,
Of course, the jury may have believed the Government’s case and still have acquitted [the defendant]. . . . In this case, it is not inconceivable that the jury might have been offended by the number of government witnesses who had been allowed to plead guilty to greatly reduced charges in return for their testimony, and might have felt it unfair to convict [the defendant] in light of the lenient treatment received by the othеrs. However, if we consider jury nullification as a basis on which the jury might have acquitted [the defendant] . . . we would in effect be eliminating the entire doctrine of collateral estoppel and greatly weakening the protection against double jeopardy.
Id. at 1341 n.12. Although Tran raised several issues unrelated to the elements of the crimes charged, we decline the Government’s invitation to speculate as to any irrational reasons for the first jury’s acquittals.
Instеad, “[t]o determine the facts necessarily decided in [a defendant’s]
first trial under the first step of the collateral estoppel analysis, [a court] must
examine the elements of the statutes under which [the defendant] was charged.”
Bolden
,
In denying Tran’s motion for acquittal, the district court held that each
chаrge required an independent analysis, and that the effect of each acquittal
was limited to that particular individual on the particular date alleged in the
indictment. Several analogous Fifth Circuit cases support this result. In
Douthit v. Estelle
,
On appeal, the defendant argued that, because the state had introduced evidence of all the assaults during thе first trial, the first jury must necessarily have found that the victim’s consent extended to all of his actions throughout the three counties during the entire twenty-two hours. Id. at 804. The Fifth Circuit disagreed, holding that the acts were “not only separate in the eyes of the law [but also] separate in point of fact, being removed from each other by considerable time, distance and circumstances.” Id. at 805. Specifically, the issue of the consent of the victim to the assault in Travis County was a different issue, both legally and factually, from the issue of the consent of the victim to the assaults in Williamson County, which occurred the next day. Id. The court held that distinction to be dispositive, stating that it was “not logically or legally necessary for the first jury . . . by its general verdict of not guilty, to have decided both issues of consent in favor of Petitioner.” Id. at 806. In other words, because the first jury could have grounded its general verdict of acquittal solely upon a finding that the victim consentеd to the assault in Williamson County, the state was not foreclosed from prosecuting the defendant for the assault in Travis County.
In
United States v. Griggs
,
Like the issues of consent in
Douthit
and knowledge in
Griggs
, the issue
of intent in this case is a separate inquiry as to each count. Each of the forty-
three counts alleged that Tran illegally distributed drugs to a particular person
on a particular date. By acquitting Tran on these forty-three counts, the jury
necessarily determined that Tran lacked intent to illegally distribute drugs to
specific persons as identified on specific dates. However, this conclusion does not
constitute a determination that Tran lacked intent to illegally distribute drugs
to other persons on other dates. The forty-three acts charged in the first trial
were separate in the eyes of the law as well as being separate in point of fact
from the twenty-two acts charged in the seсond trial, “being removed from each
other by considerable time . . . and circumstances.”
Douthit
,
The second step in the
Ashe
analysis is to decide whether the Government
seeks to relitigate the conclusion necessarily reached by the first jury through
any of the charges brought in the second trial.
Accord Bolden
,
We therefore hold that Tran’s second trial did not violate the Double Jeopardy Clause, and the district court did not err in denying his motion for judgment of acquittal, or in the alternative for new trial, on that basis.
II. Exclusion of Evidence of Racial Discrimination Prior to Tran’s second trial, the Government moved in limine to preclude evidence of a race-based motive for the investigation of Tran on the ground thаt such evidence was irrelevant under Rule 402 or that its probative value was outweighed by the danger of unfair prejudice under Rule 403 of the Federal Rules of Evidence. The district court granted the motion during the pre-trial conference, stating that this case “has absolutely nothing to do with race.” Tran argues that this ruling was in error.
A. Standard of Review
As a threshold matter, the Government argues that Tran failed to preserve this argument for appeal by making an offer of proof or by seeking tо offer the excluded evidence at trial, and that this court’s review should therefore be for plain error only.
“[N]either the Rules nor this Circuit require a
formal
offer to preserve
error.”
United States v. Ballis
,
B. Discussion
Federal Rule of Evidence 401 defines “relevant evidence” as evidence “having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Although Tran admits that “the existence of racially virulent motives would not necessarily have disрroved the Government’s allegations,” he argues that evidence of racial bias on the part of the DEA investigators would “have cast doubt on the credibility of the DEA’s investigation” and would have it more likely that “the DEA’s evidence regarding Tran’s state of mind was slanted and unreliable.”
In challenging the court’s refusal to permit such evidence, Tran relies on case law relating to bias on the part of individual witnesses. However, Tran does not allege that the court prеvented him from impeaching any Government witness on the issue of bias; rather, he argues that he was targeted for prosecution because of his race. This is an allegation of selective prosecution, not of witness bias. Furthermore, Tran does not challenge the district court’s additional finding that, even if the racial discrimination argument had some slight relevance in this matter, it was substantially outweighed by the danger of unfair prejudice and the danger of misleading the jury such that evidence thereof should be excluded pursuant to Federal Rule of Evidence 403. We therefore affirm the district court’s judgment granting the Government’s motion in limine .
III. Refusal to Allow Tran to Recall a Government Witness Finally, Tran argues that his conviction should be reversed because the district court improperly refused him permission to recall a Government witness in order to address matters outside the scope of that witness’s direct examination. We review a district court’s decision on recall of a witness for abusе of discretion. See United States v. Masat , 948 F.2d 923, 933 (5th Cir. 1991).
As part of its case in chief, the Government called Sean Baudier, a DEA investigator, to testify about the controlled substances seized from Tran’s Pharmacy and about instructional materials regarding the Controlled Substances Act that the DEA provides to pharmacists. After Tran’s counsel cross-examined Baudier on these matters, Baudier was dismissed. Tran’s counsel later attempted to recall Baudier to question him about a tape recording in whiсh DEA agents allegedly discussed how to “drag Tran into the investigation.” After allowing Tran’s counsel to conduct a proffer, the district court denied the request to recall Baudier.
Tran argues that, because his desired line of questioning lay outside the
scope of the Government’s inquiries on direct examination, he properly refrained
from cross-examining Baudier on this matter during the Government’s case-in-
chief and should have been permitted to recall Baudier as а defense witness.
While Rule 611(b) of the Federal Rules of Evidence states that cross-examination
“should be limited to the subject matter of the direct examination and matters
affecting the credibility of the witness,” the Rule goes on to state that a court
“may, in the exercise of discretion, permit inquiry into additional matters as if
on direct examination.”
See United States v. Wolford
,
Even if the district court somehow abused its discretion in refusing to
permit Tran to recall Baudier, any error was harmless.
See United States v.
James
,
CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the district court.
Notes
[*] Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4.