UNITED STATES оf America, Plaintiff-Appellee v. Nick C. TRAN, Defendant-Appellant.
No. 10-60600.
United States Court of Appeals, Fifth Circuit.
June 21, 2011.
433 F. App‘x 227
William Booney Bardwell, Will Bardwell Law Firm, P.L.L.C., Jackson, MS, David Clifton Morrison, Esq., Chief Counsel, Morrison Law Firm, Biloxi, MS, for Defendant-Appellant.
Before KING, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM:*
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 рrescriptions. 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. The Family Medical Center and Tran’s Pharmacy also saw a large increase in out-of-market patients, including some from neighboring Alabama.
Thе 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, nine counts of dispensing or distributing controlled substances outside the scope of professional practice to persons under 21 years of аge, 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 practice.
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
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 jeopаrdy. This court reviews de novo the constitutional issue of double jeopardy. United States v. Cluck, 87 F.3d 138, 140 (5th Cir.1996) (per curiam).
The question whether Tran’s second trial violated the Double Jeopardy Clause is governed by Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (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 players. Id. at 437-38, 90 S.Ct. 1189. The only contested issue at trial was whether he had actually been one of the robbers. Id. at 438, 90 S.Ct. 1189. Ashe was acquitted, but the state later separately indicted him for the robbery of another one of the poker players. Id. at 439, 90 S.Ct. 1189. The second jury convicted. Id. at 440, 90 S.Ct. 1189. 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, 90 S.Ct. 1189. Straightforward application of this principle led to the conclusion that Ashe’s second prosecution violated his constitutional protection against double jеopardy 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, 90 S.Ct. 1189.
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 necessarily decided in the first trial. Bolden v. Warden, W. Tenn. High Sec. Facility, 194 F.3d 579, 583-84 (5th Cir.1999). In making this determination, a court must “examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whеther a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.” Ashe, 397 U.S. at 444, 90 S.Ct. 1189 (citation and internal quotation marks omitted). Second, a court must determine “whether the facts necessarily decided in the first trial constitute essential elements of the offense in the second trial.” Bolden, 194 F.3d at 584.
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 thе 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 element of intent,
Neither of these arguments is persuasive. Because the jury failed to reach a verdict 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 intеnt to distribute such substances during the entire time frame of the conspiracy. See Yeager v. United States, 557 U.S. 110, 129 S.Ct. 2360, 2366-68, 174 L.Ed.2d 78 (2009) (holding that a jury’s failure to reach a verdict on some counts is a “nonevent” that cannot, by negative implication, inform the double jeopardy inquiry); see also United States v. Whitfield, 590 F.3d 325, 371-72 (5th Cir.2009).
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, 90 S.Ct. 1189 (courts must conclude whether “a rational jury could have grоunded 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 purposes, a court’s analysis “must stay within the bounds of a rational[ ] inquiry”). As this court reasoned in United States v. Leach, 632 F.2d 1337 (5th Cir.1980):
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 gоvernment 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 others. 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. Althоugh 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.
Instead, “[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, 194 F.3d at 584. The district court informed the jury that there were three elements it had to find beyond a reasonable doubt in order to convict Tran of possession with intent to distribute a controlled substance
In denying Tran’s motion for acquittal, the district court held that each charge 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, 540 F.2d 800 (5th Cir.1976), the defendant was accused of raping a woman in three differеnt counties within a twenty-two hour time period. The state indicted and tried him for the rapes that were allegedly committed in Williamson County, although it introduced evidence at trial as to the alleged criminal acts in all three counties. Id. at 802. The defendant’s main defense was that the victim gave her consent. Id. The jury acquitted the defendant by a general verdict of not guilty. Id. The state then tried him for the rape that was committed in Travis County, once again introducing evidence of the сriminal acts in all three counties. Id. This time, the jury convicted. Id.
On appeal, the defendant argued that, because the state had introduced evidence of all the assaults during the 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 Petitionеr.” 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 consented 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, 651 F.2d 396 (5th Cir. Unit B July 1981), the defendant was indicted on three separate counts of passing counterfeit bills. At trial, he averred that he was unaware that the bills were counterfeit. Id. at 398. The court granted the defendant’s motion for directed verdict on one of the counts, and the jury acquitted on the other two. Id. Subsequently, the defendant was re-indicted on one count of conspiracy, two counts of sale, one count of possession, and one count of attempt to pass counterfeit bills.
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 lаw as well as being separate in point of fact from the twenty-two acts charged in the second trial, “being removed from each other by considerable time ... and circumstances.” Douthit, 540 F.2d at 805. Tran therefore fails to carry his burden to demonstrate that “the issue whose relitigation he seeks to foreclose was actually decided in the first proceeding.” Dowling v. United States, 493 U.S. 342, 350, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990).
The second step in the Ashe analysis is to decide whether the Government seeks to relitigate the conclusion necessarily reached by thе first jury through any of the charges brought in the second trial. Accord Bolden, 194 F.3d at 584. We hold that it does not. Charging Tran with new counts of distribution based on specific and unique transactions not listed in the first indictment does not require relitigation of Tran’s intent as to those transactions that were charged in the first indictment. Furthermore, the first jury’s acquittals did not necessarily rest on a finding that Tran did not participate in a conspiracy or on a finding that he did not maintain a premises for the illegal distribution of controlled substances. Finding that Tran conspired to distribute such controlled substances, and finding that he maintained a premises for the distribution of such substances, are not inconsistent with the first jury’s finding that he did not intend to distribute such substances in the forty-three instances specified in that indictment.
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 еvidence of a race-based motive for the investigation of Tran on the ground that such evidence was irrelevant under
A. Standard of Review
As a threshold matter, the Government argues that Tran failed to preserve this
“[N]either the Rules nor this Circuit require a formal offer to preserve error.” United States v. Ballis, 28 F.3d 1399, 1406 (5th Cir.1994). Therefore, “the adequacy of a given informal proffer will necessarily depend on its particular circumstances.” Id. Under the circumstances here, it was unnecessary for Tran to make a formal offer of proof.
B. Discussion
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 thаt the court prevented 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
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 abuse of discretion. See
As рart 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 which DEA agents allegedly discussеd 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 a defense witness. While
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, 510 F.2d 546, 551 (5th Cir.1975). First, Baudier testified during the proffer that he had no specific recollection of the recording at issue. Second, Trаn fails to address the district court’s finding that Baudier’s testimony would have been barred as hearsay, because Baudier himself did not participate in the tape-recorded discussion at issue. Finally, to the extent that Tran intended to inquire into the timing of the DEA investigation, as the trial transcript suggests, he did not explain why that information was relevant.
CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the district court.