IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 97-41335
_____________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee-Cross-Appellant,
versus
RONNIE S. HAAS,
Defendant - Appellant-Cross-Appellee.
_________________________________________________________________
Appeals from the United States District Court for the
Southern District of Texas
_________________________________________________________________
March 29, 1999
Before JOLLY, DUHÉ, and EMILIO M. GARZA, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
A jury convicted Ronnie Haas, who conducted a pharmaceutical
drug importation business, on multiple conspiracy charges involving
fraud and other illegal conduct relating to Food and Drug
Administration (“FDA”) regulations. The jury also convicted him of
aiding and abetting others involved in the illegal conduct and of
introducing misbranded drugs into this country with the intent to
defraud. Haas argues that the government did not produce
sufficient evidence for a rational jury to convict him. He also
argues that the district court erroneously instructed the jury.
Finally, both Haas and the government (which cross-appeals) contend
that the district court incorrectly calculated Haas’s sentence
under the Sentencing Guidelines. We hold that the evidence is
sufficient to support convictions on all counts. We further hold
that the district court did not err when instructing the jury.
Finally, we agree with the government that the district court did
err in calculating Haas’s sentence when it failed to consider loss
caused by his fraudulent activities. We therefore uphold all
convictions, but remand for resentencing.
I
Taken in the light most favorable to the government, see
United States v. Ortega Reyna, 148 F.3d 540, 543 (5th Cir. 1998),
the evidence established the following facts.
Ronnie Haas was, shall we say, an entrepreneur. He, along
with two other partners, founded North American Pharmaceutical
Services, Inc. (“NAPS”).1 NAPS operated as a mail-order business
that advertised in several states, claiming that it could supply
pharmaceutical drugs at prices lower than the average wholesale
prices because of “the benefits of International Trade.” These
“benefits of International Trade,” however, had little to do with
NAFTA, GATT or any other international trade agreement. Instead,
the benefits came by way of avoiding U.S. regulations governing the
1
Haas took the most active role in operating NAPS while the
other partners, Keith Dodson and William Wray, were silent
partners.
2
sale of drugs; NAPS avoided regulatory oversight by purchasing
drugs in Mexico and then transporting them into the United States
(either through the mail or by way of NAPS employees themselves)
without declaring the importation to any customs authority.
NAPS maintained two primary places of business to sustain its
mode of operation. The headquarters were located in San Antonio,
Texas. Here NAPS received its orders from United States customers.
NAPS employees would then transmit the orders to its Mexican
pharmacy located in Nuevo Laredo, Mexico. To fill the orders, the
NAPS employees at the pharmacy would purchase drugs from a
wholesale supplier in Monterrey, Mexico. The NAPS employees would
then fill the orders and, at the early stage of this operation,
would mail them from Mexico to the U.S. customers.
Over the course of several months, NAPS slightly altered its
procedure for moving the drugs from the Mexican pharmacy to the
U.S. customers. Instead of mailing the drugs directly from the
pharmacy, NAPS employees began transporting the drugs--sometimes by
car, and sometimes even by foot--into the United States. Only
after entering the United States would NAPS employees place the
drugs into the mail. NAPS never reported the importation of the
drugs to customs officials as required. It is significant that
this alteration of distribution methods occurred after Haas met
with FDA agents concerning his questionable operation, and during
3
a period in which Haas received written warnings from the FDA
stating that he appeared to be violating the law.
During the months of September and October of 1994, Haas
participated in three meetings with various state and federal
government officials who were concerned about the legality of his
conduct. At the first meeting, which Haas initiated, Haas met with
a customs inspector, Agent Leyendecker, to discuss his importation
plans. Importantly, the inspector told Haas that his activities
would be considered commercial--as opposed to personal--importation
of drugs. The characterization of Haas’s activities as
“commercial” is a crucial point for both the legality of Haas’s
activities and Haas’s convictions. The characterization is crucial
because the facial legality of Haas’s importation business turns
upon the availability to him of a narrow exemption (the “personal
importation exemption”) from various customs and FDA importation
regulations. Under the personal importation exemption, the FDA
waives its standard rule that only drugs manufactured or prepared
in foreign facilities registered with the FDA may enter the United
States.2 At this first meeting, however, Haas was instructed that
2
See 21 C.F.R. § 207.40 (1998):
Drug listing requirements for foreign drug establishments.
(a) Every foreign drug establishment whose drugs are
imported or offered for import into the United States
shall comply with the drug listing requirements in
4
his planned course of business constituted commercial importation
and that the personal importation exemption did not apply.
Furthermore, Agent Leyendecker suggested that Haas speak with the
FDA.
The next day, September 21, 1994, Haas did meet with FDA
agents. These agents warned Haas that his activities were
commercial and that he must comply fully with customs and FDA
regulations. Approximately two weeks later, Haas met with the FDA
again. They again informed him that they considered NAPS to be
engaged in commercial importation. Furthermore, they explicitly
told Haas that his activities were illegal.3 Undeterred, Haas
Subpart C of this part, unless exempt under Subpart B of
this part, whether or not it is also registered.
(b) No drug, unless it is listed as required in Subpart
C of this part, may be imported from a foreign drug
establishment into the United States except a drug
imported or offered for import under the investigational
use provisions of part 312 of this chapter. Foreign drug
establishments shall submit the drug listing information
in the English language.
(c) Every foreign drug establishment shall submit, as
part of drug listing, the name and address of the
establishment and the name of the individual responsible
for submitting drug listing information. The
establishment shall report to FDA any changes in this
information at the intervals specified in § 207.30(a) for
updating drug listing information.
Haas does not argue that he complied with these regulations.
3
The FDA agents told Haas that before foreign drugs may be
marketed in the United States, they must be approved by the FDA.
5
continued NAPS’s operations without complying with customs or FDA
regulations.
In February 1995, the FDA began to confiscate NAPS drug
shipments made through the mail from Mexico. After the FDA began
confiscating the shipments, Haas and other NAPS employees altered
the delivery method by transporting the drugs into the United
States before placing them into the mail system. Then, in March
1995, the FDA sent Haas the first of two warning letters. Among
other things, the letter stated that NAPS’s “drugs may not be
legally marketed in this country, and, therefore, your activities
are in serious violation of the Federal Food, Drug, and Cosmetic
Act.” The letter went on to list specific sections of the United
States Code that the FDA thought NAPS was violating. Although the
letter asked for a response, Haas ignored the letter.4 The FDA
sent another warning letter (repeating the content of the first
It is undisputed that the FDA had never approved the drugs Haas
imported. Nor does Haas contend that the production facility
making the drugs was registered with the FDA.
4
Haas testified that although he did not respond to the FDA
after receiving this letter, he did stop advertising in the United
States. According to Haas, he did this without stopping NAPS’s
importation activities because he believed that this was all that
the warning letter required. The jury was, of course, free to
doubt that Haas actually believed this novel and convenient
interpretation of the warning letter at the time he received it.
The decision to stop advertising could easily be interpreted as an
attempt to lower the profile of NAPS’s operations so as to avoid
alerting regulatory officials to continuing importation.
6
letter) in November 1995. Again, Haas ignored the letter; NAPS
operations continued without change.
Later that same month, FDA officials sought to determine
whether NAPS’s was still operating in violation of federal law. To
this end, an FDA agent--operating under cover and acting as a
typical customer--ordered some drugs from NAPS. In due course the
drugs were delivered. The undercover order confirmed that NAPS was
still operating in violation of FDA regulations. The drugs were
not properly labeled and they did not come from a foreign facility
registered with the FDA. Soon thereafter, FDA agents obtained a
search warrant, searched NAPS’s San Antonio premises, and found
paraphernalia indicating that Haas was still conducting NAPS’s
operations out of that location. Haas was subsequently arrested,
indicted, and brought to trial.
II
The government charged Haas with six counts at trial. First,
Haas was charged with conspiracy to defraud an agency of the United
States (the FDA) in violation of 18 U.S.C. § 371.5 Section 371
5
Section 371 states in relevant part:
If two or more persons conspire either to commit any
offense against the United States, or to defraud the
United States, or any agency thereof in any manner or for
any purpose, and one or more of such persons do any act
to effect the object of the conspiracy, each shall be
fined under this title or imprisoned not more than five
years, or both.
7
also supports the charge in the second count for conspiracy to
commit an offense against the United States by (1) introducing
misbranded drugs into interstate commerce with the intent to
defraud and mislead,6 and (2) entering and introducing imported
goods into United States commerce by means of a false statement and
18 U.S.C.A. § 371 (West Supp. 1998).
6
21 U.S.C. §§ 331(a), 333(a)(2) form the predicate for this
part of the offense. Section 331(a) states:
The following acts and the causing thereof are prohibited:
(a) The introduction or delivery for introduction into
interstate commerce of any food, drug, device, or
cosmetic that is adulterated or misbranded.
21 U.S.C.A. § 331(a) (West 1972). Section 333(a) states:
(a) Violation of section 331 of this title; second violation;
intent to defraud or mislead
(1) Any person who violates a provision of
section 331 of this title shall be imprisoned
for not more than one year or fined not more
than $1,000, or both.
(2) Notwithstanding the provisions of
paragraph (1), if any person commits such a
violation after a conviction of him under this
section has become final, or commits such a
violation with the intent to defraud or
mislead, such person shall be imprisoned for
not more than three years or fined not more
than $10,000, or both.
21 U.S.C.A. § 333(a) (West Supp. 1998).
8
false and fraudulent practice.7 In the remaining four counts, Haas
was charged with aiding and abetting the illegal delivery of
misbranded drugs into interstate commerce in violation of 18 U.S.C.
§ 28 and 21 U.S.C. §§ 331(a), 333(a)(2).
7
18 U.S.C. § 542 forms the predicate for this part of the
offense. That provision states in relevant part:
Entry of goods by means of false statements
Whoever enters or introduces, or attempts to enter
or introduce, into the commerce of the United States any
imported merchandise by means of any fraudulent or false
invoice, declaration, affidavit, letter, paper, or by
means of any false statement, written or verbal, or by
means of any false or fraudulent practice or appliance,
or makes any false statement in any declaration without
reasonable cause to believe the truth of such statement,
or procures the making of any such false statement as to
any matter material thereto without reasonable cause to
believe the truth of such statement, whether or not the
United States shall or may be deprived of any lawful
duties; or
Whoever is guilty of any willful act or omission
whereby the United States shall or may be deprived of any
lawful duties accruing upon merchandise embraced or
referred to in such invoice, declaration, affidavit,
letter, paper, or statement, or affected by such act or
omission–
Shall be fined for each offense under this title or
imprisoned not more than two years, or both.
18 U.S.C.A. § 542 (West Supp. 1998).
8
Section 2 states:
Principals
(a) Whoever commits an offense against the United States or
aids, abets, counsels, commands, induces or procures its
9
The jury returned a verdict of guilty on all six counts. The
trial judge then sentenced Haas to a 27-month term of imprisonment
for each count, each term to run concurrently. The court also
sentenced Haas to three years of supervised release based on counts
1 and 2 and one year of supervised release for each of counts 3-6.
The court ordered that all the terms of supervised release would
run concurrently.
At the sentencing hearing, the district court enhanced Haas’s
sentence, under U.S.S.G. § 3C1.1, for obstruction of justice. The
court found that Haas obstructed justice by perjuring himself in
his testimony at trial. In particular, the court found that Haas
falsely testified by claiming that he had not been told that he
could not import drugs from Mexico and by denying that NAPS was
operating commercially when it brought the drugs into the United
States.
The prosecution also argued that the court should enhance
Haas’s sentence under U.S.S.G. § 2F1.1(b)(1)(H). This subsection
calls for a sentence enhancement based upon the dollar amount of
loss caused by the offender’s fraud. The district court, however,
commission, is punishable as a principal.
(b) Whoever willfully causes an act to be done which if
directly performed by him or another would be an offense
against the United States, is punishable as a principal.
18 U.S.C.A. § 2 (West 1969).
10
disagreed because it could find no “loss” and refused to enhance
the sentence under this provision.
Haas now appeals, challenging the sufficiency of the evidence
for conviction, the jury instructions, and the calculation of his
sentence. The government cross-appeals the calculation of Haas’s
sentence.
III
A
We first address the sufficiency of the evidence. Viewing all
of the evidence and the inferences to be drawn therefrom in the
light most favorable to the government, we conclude that a rational
jury could find that the evidence was sufficient to remove any
reasonable doubt of Haas’s guilt.
(1)
We will find the evidence sufficient to support Haas’s
convictions “if any reasonable trier of fact could have found that
the evidence presented at trial established the essential elements
of the crime beyond a reasonable doubt.” United States v. Ramirez,
145 F.3d 345, 350 (5th Cir.) (citing United States v. Alix, 86 F.3d
429, 435 (5th Cir. 1996)), cert. denied, 119 S.Ct. 602 (1998). We
also keep in mind that the evidence presented by the government
need not exclude every reasonable hypothesis of innocence.
Ramirez, 145 F.3d at 350 (citations omitted). In other words, the
11
proof need not be “conclusive” in order to “constitute substantial
evidence and to authorize a reasonable trier of fact to conclude
that [Haas’s] guilt was established beyond a reasonable doubt.”
United States v. Richardson, 848 F.2d 509, 514 (5th Cir. 1988).
12
(2)
Haas first argues that a rational jury could not have found,
beyond a reasonable doubt, that he intended to defraud the FDA.
Haas argues that, given his numerous attempts to contact and to
receive advice from the FDA, the government presented insufficient
evidence of an intent to defraud. According to Haas, he and his
partners spent time researching regulatory and customs issues for
several months before starting up his business. He also testified
that, before his initial meeting with Agent Leyendecker, he
attempted, on multiple occasions, to contact the FDA about
regulations; only after petitioning his congressman did the FDA
return his calls. And when the FDA finally responded to his calls,
an FDA employee sent Haas information on the personal importation
exemption. Haas maintains that he continued to believe that he was
operating within the personal importation exemption, despite the
repeated refrain from regulatory officials that his activities
constituted commercial importation. He also points out that he
operated NAPS openly by advertising in several publications--at
least until receiving the first warning letter from the FDA.
Finally, Haas argues that a rational jury could not have found that
he had any intent to defraud the FDA with respect to misbranding.
According to Haas, he did not have a subjective understanding of
the term “misbranded” as that term is defined in FDA regulations.
13
Haas also argues that the government provided insufficient
evidence for a jury to conclude that the drugs were, in fact,
misbranded. The relevant facts surrounding this argument are not
in dispute. Haas does not argue that the drugs he distributed
complied with the requirements listed in § 352 (b),(c), and (f).
See 21 U.S.C.A. § 352. Instead, he argues that the drugs were
exempt from these labeling requirements because they were filled by
a pharmacist (though the pharmacist was not certified by any
authority in the United States). The applicability of this
exemption, Haas argues, means that the drugs were not “misbranded.”
(3)
We think that the jury had ample evidence before it to
conclude that Haas intended to defraud the FDA. The government
may, of course, prove the defendant’s criminal intent by way of
circumstantial evidence. We need not list all of the evidence a
jury could have considered in concluding that Haas intended to
defraud the FDA--we will only consider a few examples.
In February 1995, the method that NAPS (at Haas’s instruction)
used in delivering the drugs to U.S. customers changed. Instead of
mailing the drugs from Mexico, NAPS employees transported the
drugs--sometimes by car, sometimes by foot--over the border before
placing them into the U.S. mail system. This change occurred after
Haas had had the three meetings with various agents who had
14
explained that NAPS’s activities constituted commercial
importation. Also, just before the delivery methods changed, the
FDA began confiscating NAPS’s deliveries, mailed in Mexico, to the
U.S. customers. Haas knew of the FDA seizures because his
customers began to complain about FDA detention of their drugs.
From these facts, the jury not only could have inferred that Haas
knew that the FDA considered the importation of these drugs
illegal, but also that Haas changed the methods for importing the
drugs so that he could continue the illegal importation.
Haas argues that a rational jury, in the light of his
explanations, would have rejected much of the inference of intent
that might be drawn from the government’s evidence. Haas and the
government presented two competing explanations for Haas’s conduct
after he received multiple warnings from FDA officials.9 The jury
had ample reason to disbelieve Haas’s version. His testimony was
riddled with suspect assertions as to his subjective beliefs. For
example, Haas said that he believed that NAPS’s importation of
drugs that were delivered to customers for a price was not
9
According to Haas, the change in delivery methods came about
as the result of an innocent business decision. Haas told the jury
that his customers began complaining about how long it took to get
their drugs. Haas told the jury that he attributed the lengthy
delivery time to the inefficiency of the Mexican mail system. That
was the reason, he testified, why he sought to avoid the
international mail system by walking the drugs over into the United
States. The jury obviously could have rejected this explanation.
15
“commercial” importation, even after being instructed otherwise--on
multiple occasions--by regulatory agents. In addition, Haas
interpreted the FDA’s letters warning that he could not “market”
the Mexican drugs to mean only that he could not advertise those
drugs to U.S. citizens. To rational jurors, this testimony could
have been taken as nothing more than lame and specious excuses for
violating the law, denying even the obvious, and could therefore
have created, in the minds of the jurors, a presumption of deceit
as to many of the controverted issues relating to Haas’s intent.
When a challenge to a jury verdict is based on an argument that the
jury could not have rationally believed that the defendant
possessed criminal intent because of the defendant’s subjective
beliefs, evidence showing that the defendant is wilfully attempting
to obfuscate the truth proves particularly damaging to the
defendant’s case; it is rational for a jury to believe that those
who have been deceptive with the truth once are likely to deceive
again.10
10
Haas also makes a sufficiency of the evidence argument based
on his assertion that the drugs he imported were exempt from the
labeling requirements of the Food, Drug, and Cosmetic Act because
they were filled by a pharmacist. This argument is meritless. A
pharmacist cannot legally fill prescriptions with illegal drugs,
and the lack of FDA approval made NAPS’s drugs illegal. The
prosecution presented evidence that the drugs he imported were not
regulated or approved by the FDA. The jury also learned from a FDA
import compliance officer that without FDA approval, the drugs
could not be legally marketed in the United States. Thus, the jury
could have rationally found that NAPS’s drugs did not comply with
16
The undisputed evidence revealed that Haas’s company delivered
thousands of drug orders to U.S. citizens from a pharmacy in Mexico
without filing any declarations with U.S. Customs or the FDA. Haas
was advised repeatedly by government officials that NAPS’s
operations violated federal law. In the face of this, Haas
stubbornly continues to argue on appeal that he actually believed
in the legality of his operations. We cannot conclude that the
jury was unreasonable in disbelieving him and in accepting the
governments evidence and arguments.
B
We turn now to Haas’s challenge to the jury instructions. In
reviewing a challenge to jury instructions, we ask “whether ‘the
court’s charge, 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.’” United States
v. Devoll, 39 F.3d 575, 579 (5th Cir. 1994) (quoting United States
v. Pace, 10 F.3d 1106, 1120-21 (5th Cir. 1993). We will find
reversible error when “the jury charge, as a whole, misled the jury
as to the elements of the offense.” Id. Furthermore, in cases
involving violations of relatively complex regulatory law, the
district court’s discretion is especially broad. District courts
mandatory labeling requirements. Without the exemption, the
evidence showed that the drugs were “misbranded” under 21 U.S.C.
§ 352.
17
must be given added discretion when they distill the essential
concepts from complex legal jargon.
(1)
In his first challenge to the instructions, Haas argues that
the district court erred when it failed to define the phrase
“intent to defraud.” Haas would have us require a specifically
worded instruction--which we have in the past upheld, see United
States v. Gray, 105 F.3d 956, 968 (5th Cir. 1997)--that acting with
intent to defraud “means to act knowingly and with the intention or
purpose to deceive or to cheat.” We think that this additional
language, beyond the instruction that the court gave, would add
little to the jurors’ understanding of the phrase “intent to
defraud.” In short, the district court’s instruction did not fail
to “clearly instruct[] the jurors as to the principles of law
applicable to the factual issues confronting them.’” Devoll, 39
F.3d at 579.
(2)
The district court instructed the jury that it could conclude
that Haas possessed guilty knowledge if it found that he acted with
deliberate ignorance as to the legality of his conduct. Haas does
not challenge the content of these instructions, but only argues
that the evidence did not support the district court’s decision to
give a deliberate ignorance instruction. This challenge to the
18
jury instructions is meritless because Haas bases it--like his
sufficiency of the evidence arguments--on his own disputed and
controverted view of the evidence.
We have stated that “[t]he purpose of the deliberate ignorance
instruction is to inform the jury that it may consider evidence of
the defendant’s charade of ignorance as circumstantial proof of
guilty knowledge.” United States v. Lara-Velasquez, 919 F.2d 946,
951 (5th Cir. 1990). More specifically, we have said that the
“evidence at trial must raise two inferences: (1) the defendant
was subjectively aware of a high probability of the existence of
the illegal conduct; and (2) the defendant purposely contrived to
avoid learning of the illegal conduct.” Id. (citation omitted).
The evidence to which we previously referred clearly supports each
of these inferences.11
C
Both parties find fault with the district court’s sentencing
decision. Haas appeals the district court’s enhancement of his
sentence for obstruction of justice under U.S.S.G. § 3C1.1. The
11
Haas also argues that the jury instructions were deficient
because they failed to require a finding that Haas knew of the
misbranding. We review Haas’s arguments on this point for plain
error because he did not raise them before the district court. See
generally United States v. Calverley, 37 F.3d 160 (5th Cir. 1994)
(en banc). After reviewing the jury instructions, and in the light
of the fact that the jury was told that it must find that the
defendant “knew the facts that made his conduct illegal as to each
element of the offense,” we find no plain error.
19
government cross-appeals the failure of the district court to
enhance Haas’s sentence based on “loss,” as that term is used in
U.S.S.G. § 2F1.1. In considering the arguments, we will review the
district court’s application of the Sentencing Guidelines de novo.
The factual findings are reviewed, however, under the clearly
erroneous standard. See United States v. Edwards, 65 F.3d 430, 432
(5th Cir. 1995). “A factual finding is not clearly erroneous as
long as the finding is plausible in the light of the record as a
whole.” United States v. Brown, 7 F.3d 1155, 1159 (5th Cir. 1993).
(1)
Section 3C1.1 instructs the sentencing court to increase the
sentencing offense level if the defendant has willfully obstructed
justice.12 As the commentary to § 3C1.1 points out, one example of
such obstruction is perjury. See § 3C1.1 cmt. 4(b). The district
court adopted the findings of the Presentence Report and concluded
that Haas committed perjury when he testified at trial. Haas
argues that the district court did not make the independent factual
findings for perjury as required by United States v. Dunnigan, 507
U.S. 87 (1993). After reviewing the findings of the district
12
Section 3C1.1 states:
If the defendant willfully obstructed or impeded, or
attempted to obstruct or impede, the administration of
justice during the investigation, prosecution, or
sentencing of the instant offense, increase the offense
level by 2 levels.
20
court, including those which it adopted from the Presentence
Report, see United States v. Storm, 36 F.2d 1289, 1296 n.6 (5th
Cir. 1994), we conclude that the district court made independent
findings as to the wilfulness and untruthfulness of Haas’s
testimony. Although the district court made no explicit findings
as to the materiality of the perjurious statements, it is clear to
us, as a matter of law, that those statements were material. See
Id. at 1297 (finding materiality as a matter of law when the
district court did not make an explicit finding as to materiality).
Haas denied having been told by FDA agents that he could not
legally continue his importation operations, and this assertion
undoubtedly spoke to a material fact. See U.S.S.G. § 3C1.1 cmt.
n.6 (“‘Material’ . . . statement . . . as used in this section,
means . . . statement . . . that, if believed, would tend to
influence or affect the issue under determination.”).13 The
13
Haas also challenges the district court’s conclusion as to
perjury by arguing that the record does not support the elements of
perjury. After reviewing the trial transcript, we are convinced
that there exists sufficient evidence for a finding that Haas
committed perjury. For example, when Haas’s attorney asked him at
trial whether any FDA officer told him that he “could not be given
any approval to import any medicines,” Haas replied, “No.” But
both testimonial and physical evidence at trial established that
the FDA agents told Haas--both verbally and in writing--that his
drug importation activities violated federal law. The sentencing
judge could easily have found that this evidence both contradicted
Haas’s flat denial and that it was more credible than that denial.
21
district court did not err in deciding to enhance Haas’s sentence
under § 3C1.1.
(2)
In its cross-appeal, the government argues that the district
court erred when it refused to enhance Haas’s sentence based on
“loss” pursuant to U.S.S.G. § 2F1.1. This section requires an
incremental increase in the offense level based on the amount of
loss caused by the fraud.
Haas argues that the government has not shown that Haas’s
customers suffered any loss. According to Haas, the customers paid
discounted prices for drugs that they knew were coming from Mexico.
The government did not show that any of the drugs sold performed
differently from the drugs’ U.S. counterparts. Furthermore, the
government did not produce any customers as witnesses to testify
that NAPS had swindled or cheated them. Without any proof of loss
to the customers, Haas maintains, there simply is no loss to
calculate for sentence enhancement under § 2F1.1. Haas raised this
argument in his objection to the Presentence Report, and the
district court sustained the objection.
The government argues that the customers did suffer an actual
loss. The government asserts that NAPS caused a loss to its
customers by failing to inform them that, unlike all drugs legally
marketed in the United States, the drugs were not FDA-approved.
22
NAPS customers suffered loss because they reasonably assumed that
they would receive FDA-approved drugs when, in fact, they did not.
In short, they paid for something they did not receive, i.e., FDA
approval.
There is some evidence, though not much, to indicate that some
customers may have thought that the drugs were FDA-approved.14
There is certainly no expert testimony, however, showing the value
of such a loss, if any, and no argument on appeal that such a loss
can be quantified based on the record made in the district court.
Furthermore, there would be no economic harm done to the customers
if they consumed the drugs in ignorance of the lack of FDA approval
and those drugs performed just as well as FDA-approved drugs.
Thus, it would seem that the government has proved very little, if
any, loss. We cannot conclude on the record before us that the
district court clearly erred in estimating that Haas’s fraud
produced no loss for his customers.
Notwithstanding the record in this case, however, our circuit
seems to have taken the position that a § 2F1.1 “loss” enhancement
is appropriate even when there has been no identifiable loss. In
United States v. Smithson, 49 F.3d 138 (5th Cir. 1995), the
14
For example, a NAPS worker testified that when the FDA began
confiscating NAPS shipments, it would sometimes place a flier in
the packages to inform customers that the drugs were not FDA-
approved. According to the employee, some of the customers called
to complain about this fact.
23
government indicted one Pyron for his conduct in his role as a
bankruptcy debtor. In his bankruptcy petition, Pyron failed to
include, as assets, two option contracts to purchase real estate.
Our court noted that these options were virtually worthless to the
bankruptcy estate because the trustee would not have raised the
money necessary to exercise the options before they expired. In
other words, “[t]he loss to the estate resulting from the
concealment was, for all practical purposes, zero.” Id. at 144.
Even so, we concluded that the district court should
approximate the gain to the defendant as an alternative valuation
method.15 Smithson interprets the commentary note to require the
district court to use the defendant’s gain as a means to estimate
the severity of the fraud when the court cannot calculate any loss
for such purpose. Although § 2F1.1 ordinarily requires courts to
use the victim’s loss as a proxy for the severity of the crime, the
offender’s gain, i.e., the proceeds from the illicit activity, can
15
We reached this result after describing Application Note
eight to section 2F1.1 which states:
For the purposes of subsection (b)(1), the loss need not
be determined with precision. The court need only make
a reasonable estimate of the loss, given the available
information. . . . The offender’s gain from committing
the fraud is an alternative estimate that ordinarily will
underestimate the loss.
U.S.S.G. § 2F1.1 cmt. n.8 (1993). In the current version of the
Sentencing Guidelines, this note is now note 9 in the Commentary
section.
24
provide an adequate, alternative method of gauging the crime’s just
penalty when the loss is incalculable. Cf. United States v.
Izydore, No. 97-50537, 1999 WL 55158, at *10 (5th Cir. Feb. 8,
1999) (stating that the “touchstone for determining loss under
U.S.S.G. § 2F1.1 is the ‘value of the thing taken’ . . . because
the Sentencing Commission believed that punishment for fraud should
reflect a balance between the loss to the victim and the gain to
the defendant”). Thus, according to our precedent, if the loss is
either incalculable or zero, the district court must determine the
§ 2F1.1 sentence enhancement by estimating the gain to the
defendant as a result of his fraud.16
Under the facts of this case, the loss sustained by either the
FDA (whom Haas was convicted of defrauding) or Haas’s customers
(some of whom may or may not have been defrauded) is, for all
practical purposes, incalculable--certainly on the record made by
the government. The district court can, however, estimate the gain
16
But cf. United States v. Haddock, 12 F.3d 950, 960 (10th Cir.
1993) (“[T]he enhancement is only for loss to victims, not for gain
to defendants. The defendant’s gain may be used only as an
‘alternative estimate’ of that loss; it may not support an
enhancement on its own if there is no actual or intended loss to
the victims.”); United States v. Anderson, 45 F.3d 217, 221 (7th
Cir. 1995) (“While gain may normally prove an adequate surrogate
for loss, gain may be used only as an alternative method of
calculation when there is in fact a loss, and only if use of the
gain results in a ‘reasonable estimate of the loss.’”); United
States v. Chatterji, 46 F.3d 1336, 1340 (4th Cir. 1995)
(“gain . . . is not a proxy for loss when there is none”).
25
that Haas received from defrauding the FDA.17 The record before us
suggests that all of NAPS operations circumvented FDA regulations.
We come to this conclusion because the entire scheme was to import
Mexican made drugs at deep discounts to customers without incurring
the costs associated with regulatory approval. Thus, Haas’s gain
from his fraudulent importation scheme appears to have been those
monies he received from NAPS by way of salary and profits.18 We
will remand the case to the district court for further proceedings
not inconsistent with this opinion.
V
For the foregoing reasons, we AFFIRM the conviction of Ronnie
Haas on all counts. We must VACATE his sentence, however, and
REMAND for further proceedings in accordance with this opinion.
AFFIRMED, VACATED, and REMANDED.
17
We pause to note that the government has informed us in its
briefs that it possesses evidence that NAPS conducted a little over
$150,000 in sales. This, the government argues, is an accurate
enough estimate of NAPS’s gain. Note eight in the commentary to
§ 2F1.1 provides that loss may be estimated by calculating the
offender’s gain. The offender in this case is Haas, not NAPS.
18
Notwithstanding what we have said in this paragraph, we leave
to the district court the ultimate determination of all underlying
facts that relate to the amount of Haas’s gain from the fraud.
According to our precedent, on remand the district court may allow
further development of the record to establish facts necessary for
deciding the § 2F1.1 sentencing issue. See United States v.
Kinder, 980 F.2d 961 (5th Cir. 1992); United States v. Marmolejo,
139 F.3d 528, 530-31 (5th Cir. 1998).
26
27