United States v. Awni Shauaib Zayyad

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-4252

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

AWNI SHAUAIB ZAYYAD,

Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., District Judge. (3:10−cr−00243−RJC−DCK−1)

Argued: December 11, 2013 Decided: January 24, 2014

Before AGEE, DIAZ, and FLOYD, Circuit Judges.

Affirmed by published opinion. Judge Agee wrote the opinion, in
which Judge Diaz and Judge Floyd concurred.

ARGUED: Joshua B. Carpenter, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Asheville, North Carolina, for Appellant. David
M. Lieberman, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellee. ON BRIEF: Henderson Hill, Director, FEDERAL
DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North
Carolina, for Appellant. Mythili Raman, Acting Assistant
Attorney General, Denis J. McInerney, Acting Deputy Assistant
Attorney General, Criminal Division, Appellate Section, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Anne M.
Tompkins, United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Charlotte, North Carolina, for Appellee.

2
AGEE, Circuit Judge:

Awni Shauaib Zayyad was convicted of five felony counts

relating to the sale of counterfeit prescription drugs. On

appeal, Zayyad raises two assignments of error. First, he

contends that the district court erred in denying his attempts

to introduce certain evidence about a “gray market” 1 for

prescription pills. Second, Zayyad argues that the Government

never established that he knew that the pills that he sold were

counterfeit.

We affirm the judgment of the district court, as neither of

Zayyad’s arguments have merit. The district court appropriately

limited Zayyad’s gray-market evidence, and the Government

offered sufficient evidence of his knowledge that he sold

counterfeit pills.

I.

A.

Essam Elasmar ran a counterfeit drug operation through his

convenience store in Charlotte, North Carolina, where he peddled

erectile-dysfunction drugs that looked like Viagra and Cialis.

1
“The term ‘gray market good’ refers to a good that is
‘imported outside the distribution channels that have been
contractually negotiated by the intellectual property owner.’
Such goods are also commonly called ‘parallel imports.’”
Kirtsaeng v. John Wiley & Sons, Inc., 133 S. Ct. 1351, 1379 n.9
(2013) (internal citation omitted).

3
Unfortunately for Elasmar, his illicit drug business ended when

he sold an undercover Department of Homeland Security (“DHS”)

agent three bulk counterfeit drug orders. After a search

following the drug buys found several hundred pills, Elasmar

agreed to cooperate with investigators.

Elasmar turned over his supplier’s telephone number, which

DHS traced to Zayyad. Then, at the authorities’ behest, Elasmar

twice ordered drugs from Zayyad. In the first buy, Elasmar

bought 500 Viagra pills for $4 a pill, a price well below

wholesale. About a month later, DHS had Elasmar place a second

order -- this time for both Viagra and Cialis -- for 700 pills

at $4 a pill.

When Zayyad delivered the second batch of pills to Elasmar,

police detained him and discovered more than 800 pills in the

glove box and sunglasses holder of Zayyad’s van. One set of

pills was concealed in a brown paper bag, while another set was

wrapped in a blue paper towel; all were in plastic bags. The

pills had the outward appearance of a genuine Viagra or Cialis

pill, but they lacked any prescriptions, prescription bottles,

product literature, lot numbers, or invoices. Zayyad admitted

to law enforcement that he had planned to resell hundreds of the

pills to someone in Charlotte, but refused to identify who

supplied them to him in the first place.

4
 Police visited Zayyad’s house on the same day as the

traffic stop. When a woman answered the door, agents asked for

permission to search the home. The woman consented, but only

after she closed the door, stayed inside for ten minutes, and

came back wearing a damp shirt. Perhaps alerted by the woman’s

wet clothing, agents searched a bathroom near the front of the

house, finding a yellowish pill on the rim of a toilet equipped

with an “industrial strength flushing system.” (J.A. 759.)

As noted, some of the pills seized from Zayyad’s van and

home looked similar to genuine Viagra and Cialis pills, with the

same shapes, colors, and imprints as genuine pills. But other

pills did not have the right color tone, shape, or embossing.

Notwithstanding outward appearances, chemical analyses showed

that the pills contained incorrect compositions and active-

ingredient levels; many of the counterfeit Cialis pills also

incorrectly contained the active ingredient of Viagra. At

trial, specialists from the Food and Drug Administration,

Pfizer, and Eli Lilly testified that all the pills that they

sampled were counterfeit.

B.

A grand jury in the Western District of North Carolina

initially indicted Zayyad on seven counts: one count of

conspiracy to traffic in and dispense counterfeit drug products,

5
three counts of trafficking in counterfeit goods, and three

counts of selling and dispensing counterfeit prescription drugs.

At Zayyad’s trial in December 2011, the Government relied

principally on the nature of the transactions -- unpackaged

pills from an illegitimate source -- to show that Zayyad knew

that the pills that he sold were fake. For his part, Zayyad

tried to suggest through cross-examination that he believed the

pills came from the gray market. In particular, Zayyad cross-

examined Government witnesses from Pfizer, Eli Lilly, and DHS

who conceded that Pfizer and Eli Lilly manufactured and sold

Viagra and Cialis abroad at cheaper prices. They also admitted

that persons sometimes import foreign-manufactured pills into

the United States. In addition, evidence at the first trial

showed that Zayyad told Elasmar that the pills were real; no

evidence indicated that Zayyad had ever said the pills were

fake.

After the jury began deliberating, it asked the district

court whether “knowing [that the pills] were ‘counterfeit’ [was]

a requirement of the charge of violation in Counts Two through

Seven.” (J.A. 532.) The court reiterated that the offenses did

include a knowledge element. The jury then deliberated further

before announcing that it had deadlocked. A modified Allen 2

2
Allen v. United States, 164 U.S. 492 (1896).

6
charge failed to break the deadlock, and the district court

declared a mistrial.

C.

After the mistrial, the grand jury issued a superseding

indictment that narrowed the conspiracy count’s scope and

eliminated two counts. The new indictment contained a

conspiracy count, two counts of trafficking in counterfeit

goods, and two counts of selling and dispensing prescription

drugs.

Before the second trial, the Government moved to preclude

Zayyad from “attempting to raise during the Government’s case-

in-chief, through cross-examination or otherwise, any evidence

or argument regarding an alleged ‘diversion market’ or ‘grey

market’ for genuine, non-counterfeit, prescription

medications[.]” (J.A. 565.) The Government represented to the

district court that the gray-market evidence would only be

relevant if, for instance, “the defendant were to testify during

the defense case regarding his state of mind, that is, that he

believed the Viagra and Cialis pills he sold were genuine pills

from a specific ‘diversion market’ or ‘grey market’ channel[.]”

(J.A. 570.)

Zayyad responded that he should be permitted to use “gray

goods” evidence to establish an “affirmative defense,” namely

7
“that the purported Viagra and Cialis [pills] at issue are ‘gray

goods[.]’” (J.A. 651.) Put differently, Zayyad wanted to use

evidence establishing a gray market for prescription pills to

argue that some of the pills that police seized from him could

be genuine. He contended that “the vast majority of the more

than 2,000 purported counterfeit Viagra and Cialis tablets at

issue . . . ha[d] never been authenticated[.]” (J.A. 653.) And

he argued that the Government’s approach would impair his Sixth

Amendment rights to confrontation and Fifth Amendment due

process rights by forcing him to testify.

The district court granted the Government’s motion in

limine and determined the gray-market issue was not relevant

under Federal Rule of Evidence 401, as “there [was] no evidence

that shows that the defendant possessed any genuine pills.”

(J.A. 660.) In addition, the court excluded the evidence under

Federal Rule of Evidence 403, concluding “that concerns about

confusion of the issues, misleading the jury, and considerations

of waste of time” would overwhelm the evidence’s probative

value. (J.A. 660.)

D.

At the second trial, the Government presented much the same

basic evidence of Zayyad’s knowledge as in the first trial: he

sold the pills cheaply, kept them in plastic bags, and made them

8
available without a prescription. In response, defense counsel

argued that Zayyad’s “intent was to sell real Viagra and Cialis,

and there’s no evidence in this trial to the contrary.” (J.A.

907.) Further, Zayyad maintained that “[i]t would take a

forensic chemist, pharmacist, or some other person trained . . .

to look at any pill and be able to know that it’s counterfeit on

sight.” (J.A. 908.)

Upon closure of the evidence, Zayyad moved for a judgment

of acquittal, which the district court denied. The jury then

convicted Zayyad on all counts, and the district court sentenced

him to 24 months in prison. Zayyad timely appeals, and we have

jurisdiction under 28 U.S.C. § 1291.

II.

Zayyad first argues that the district court erred in

precluding him from introducing evidence about a “gray market”

or “diversion market” in Viagra and Cialis pills. That

evidence, Zayyad contends, was relevant because it could have

established that he reasonably believed that he dispensed real

prescription drugs. He separately argues that the district

court could not exclude the gray-market evidence under Rule of

Evidence 403 because it substantiated a central part of his

case.

9
 We note at the outset that Zayyad frames his argument too

broadly. The district court did not preclude Zayyad from

introducing all evidence concerning a gray market. The

Government’s motion in limine only requested a limit on cross-

examination, and the district court’s order granted that motion

in limine. At oral argument, counsel for Zayyad suggested that

it would have been futile to try to introduce gray-market

evidence during the defendant’s case-in-chief given the court’s

ruling on the motion in limine. But Zayyad never tried to

introduce any evidence during his case-in-chief, never raised

the possibility of doing so, and never made any proffer

regarding gray-market evidence to the district court.

Therefore, we treat the district court’s order as what it was: a

limit on Zayyad’s right to cross-examine and nothing more.

A.

Before considering the merits of Zayyad’s claims, we first

examine the appropriate standard of review.

Normally, “[w]e review for abuse of discretion a trial

court’s limitations on a defendant’s cross-examination of a

prosecution witness.” United States v. Ramos-Cruz, 667 F.3d

487, 500 (4th Cir. 2012); see also United States v. Leeson, 453

F.3d 631, 636 (4th Cir. 2006) (“We review a district court’s

ruling on the admissibility of evidence for abuse of

10
discretion.”). “A district court abuses its discretion by

resting its decision on a clearly erroneous finding of a

material fact, or by misapprehending the law with respect to

underlying issues in litigation.” Scott v. Family Dollar

Stores, Inc., 733 F.3d 105, 112 (4th Cir. 2013) (internal

quotation marks omitted).

The initial question is whether this abuse-of-discretion

standard applies -- because Zayyad preserved his present

argument –- or whether the plain-error standard applies –-

because he did not. See United States v. Jones, 716 F.3d 851,

855 (4th Cir. 2013) (“We generally limit our review of claims

not properly preserved in the district court to plain error.”).

To preserve an argument on appeal, the defendant must

object on the same basis below as he contends is error on

appeal. Because he must “state[] the specific ground” upon

which he objects below, Fed. R. Evid. 103(a), “an objection on

one ground does not preserve objections on different grounds” on

appeal, United States v. Massenburg, 564 F.3d 337, 342 n.2 (4th

Cir. 2009). So, even if a defendant invokes the same rule in

both instances, he may still waive his claim if he fashioned his

argument differently. See, e.g., United States v. Pratt, 239

F.3d 640, 644 (4th Cir. 2001) (reviewing for plain error where

defendant objected below to use of co-conspirator statements

11
under Federal Rule of Evidence 801(d)(2)(E) but pressed

different aspect of the same rule on appeal).

We agree with the Government that Zayyad likely did not

preserve his present argument below. Before the district court,

Zayyad argued that gray-market evidence could raise doubts as to

whether the pills were in fact counterfeit. Indeed, even after

the district court ruled on the motion in limine regarding

cross-examination, defense counsel stressed again that the gray-

market evidence went to whether the pills were counterfeit.

Zayyad never raised any argument that the gray-market evidence

went to show his knowledge that the pills were gray-market

items. Yet this argument is the claim that he makes on appeal

and that it appears he did not preserve in the district court.

Nonetheless, we need not decide that issue. Even if we

assume that Zayyad preserved the argument that he now makes, it

fails under the abuse-of-discretion standard. See, e.g., United

States v. Palacios, 677 F.3d 234, 245 n.6 (4th Cir. 2012)

(assuming that defendant preserved evidentiary objections where

arguments failed even under preserved error standard).

B.

District courts may “place limitations upon the cross-

examination of . . . witnesses.” United States v. Janati, 374

F.3d 263, 274 (4th Cir. 2004). They may impose these limits

12
“based on concerns including harassment, prejudice, confusion of

the issues, repetition, or marginal relevance.” United States

v. Turner, 198 F.3d 425, 429 (4th Cir. 1999). They enjoy “wide

latitude” in doing so. Id.

The district court did not allow Zayyad to cross-examine

Government witnesses on the gray market in part because the

court determined that such testimony would be irrelevant. “[A]

defendant can only cross-examine a prosecution witness if the

information sought to be elicited is relevant.” United States

v. Maxwell, 579 F.3d 1282, 1296 (11th Cir. 2009) (internal

quotation marks and alterations omitted); see also Fed. R. Evid.

402 (“Irrelevant evidence is not admissible.”). We deem

evidence relevant only if “it has any tendency to make a fact

more or less probable than it would be without the evidence” and

“the fact is of consequence in determining the action.” Fed. R.

Evid. 401. Although this “threshold for relevancy is relatively

low,” United States v. Powers, 59 F.3d 1460, 1465 (4th Cir.

1995), we rarely reverse relevancy decisions because they “are

fundamentally a matter of trial management,” United States v.

Benkahla, 530 F.3d 300, 309 (4th Cir. 2008).

Zayyad contends that his gray-market cross-examination

would have been relevant to his principal defense: that he did

not know that he was peddling counterfeit pills. And indeed,

both charged substantive offenses include a knowledge element.

13
“To obtain a conviction under [18 U.S.C.] § 2320(a) [for using a

counterfeit mark], the [G]overnment was required to prove that

[Zayyad] . . . knew the mark [on the pills] was counterfeit.”

United States v. Chong Lam, 677 F.3d 190, 197-98 (4th Cir.

2012). Likewise, because the felony offense of dispensing

counterfeit drugs requires that the defendant act “with intent

to defraud or mislead,” 21 U.S.C. § 333(a)(2), the defendant

must at least have knowledge that his drugs are mislabeled.

See, e.g., United States v. Vitek Supply Corp., 144 F.3d 476,

486 (7th Cir. 1998) (“To act with this intent [to defraud or

mislead], [defendants] must have had knowledge of the essential

nature of the alleged fraud.” (internal quotation marks

omitted)).

But Zayyad’s proposed cross-examination was irrelevant

because it did not connect to the knowledge element of the

charged offenses. “Unless there is a connection between the

external facts and the defendant’s state of mind, the evidence

of the external facts is not relevant.” United States v.

Curtis, 782 F.2d 593, 599 (6th Cir. 1986). Zayyad never

suggested -- through his own testimony, testimony from other

witnesses, documentary evidence, proffer, or otherwise -- that

he believed he was selling gray-market drugs. Nor did he

establish his own awareness of the gray market.

14
 We have previously recognized that a defendant cannot

distract the jury by introducing evidence concerning a potential

defense that he never raised. Relevance, after all, must “be

determined in relation to the charges and claims being tried,

rather than in the context of defenses which might have been

raised but were not.” United States v. Hedgepeth, 418 F.3d

411, 419 (4th Cir. 2005). If the defendant wants to present a

theory or belief that might have justified his actions, then he

must present evidence that he in fact relied on that theory or

belief. See, e.g., United States v. Kokenis, 662 F.3d 919, 927

(7th Cir. 2011) (“[The defendant] offered no evidence that he

actually relied on the pooling capital theory, so testimony

about the theory would be irrelevant, confusing, and perhaps

even misleading.”); cf. Havee v. Belk, 775 F.2d 1209, 1225 (4th

Cir. 1985) (holding that account summary could not be used to

prove the knowledge of debtor and transferees, where record

contained no evidence that debtor or transferees saw the

summary). Otherwise, a defendant could introduce evidence that

would invite the jury to speculate a non-existent defense into

existence.

As the Government notes, we often see these principles

applied in tax evasion cases. In one such case, we affirmed a

district court’s decision to limit cross-examination that

purportedly went to the defendants’ knowledge. See United

15
States v. Jinwright, 683 F.3d 471, 483 (4th Cir. 2012). The

defendants there wanted to cross-examine lay witnesses

concerning the witnesses’ beliefs that certain payments were

non-taxable “gifts.” Id. But because the defendants did not

establish that they relied on such a belief, we deemed the

evidence irrelevant. Id.; accord United States v. Powell, 955

F.2d 1206, 1214 (9th Cir. 1992); United States v. Harris, 942

F.2d 1125, 1132 n.6 (7th Cir. 1991); see also United States v.

Dynalectric Co., 859 F.2d 1559, 1574 n.19 (11th Cir. 1988)

(upholding district court’s exclusion of evidence of economic

conditions as irrelevant in bid-related case, where defendants

were not shown to have relied on those conditions in making

bid). Just as in that case (and the many cases like it), the

record before us contains no evidence of any actual reliance on

Zayyad’s part that would justify the use of the explanatory

gray-market evidence. The district court did not err in barring

cross-examination regarding that evidence, where there was no

connection to the knowledge element and consequently no

relevance.

C.

Zayyad objects that forcing him to summon other evidence in

support of his gray-market contention raises constitutional

concerns. He insists that we should not force him to waive his

16
constitutional right not to testify before allowing him to

present otherwise relevant evidence.

At bottom, Zayyad complains of the burdens of presenting

his chosen defense. A defendant may struggle with how to attack

an element that involves his own state of mind, particularly

when he lacks contemporaneous evidence of that state of mind.

But a defendant’s rights “would not be violated simply because

he had to choose between not testifying and laying [the

required] foundation.” Kokenis, 662 F.3d at 927. “Evidence by

its nature builds pressure to rebut it -- that’s what the

adversary system is about. That the defendant faces a dilemma

demanding a choice between complete silence and presenting a

defense has never been thought an invasion of the privilege

against compelled self-incrimination.” United States v. Kelly,

592 F.3d 586, 594 (4th Cir. 2010) (internal quotation marks and

alterations omitted). Zayyad cannot use the privilege against

self-incrimination as a means to free himself from the basic

rules of relevancy.

D.

Even if we could deem this evidence relevant, we could not

say that the district court committed reversible error by

directing the evidence to Zayyad’s case-in-chief. The court

gave Zayyad the opportunity to present gray-market evidence

17
outside of cross-examination. But, for reasons known only to

him, Zayyad chose to forego that course. Zayyad’s “failure to

do so rests squarely on [his] shoulders.” Jinwright, 683 F.3d

at 483; see also United States v. Stadtmauer, 620 F.3d 238, 272-

73 (3d Cir. 2010) (explaining that district courts may direct

the defendant to present relevant evidence outside cross-

examination).

Moreover, the district court permitted Zayyad to cross-

examine Government witnesses on other topics. For instance,

Zayyad pointed out weaknesses in the witnesses’ analyses, and he

highlighted the difficulties in distinguishing between real and

genuine pills. Because Zayyad could attack the Government’s

witnesses on other grounds and could raise his preferred

argument in his own case, “the district court acted well within

its discretion” to limit cross-examination on a particular

theory. United States v. Smith, 44 F.3d 1259, 1269 (4th Cir.

1995) (affirming district court’s decision to limit cross-

examination on particular subject where defendant could raise

evidence concerning the same subject in her case-in-chief and

could cross-examine witness on other matters).

E.

The district court alternatively ruled that the gray-market

cross-examination evidence should be excluded under Federal Rule

18
of Evidence 403. Under that rule, courts may exclude relevant

evidence “if its probative value is substantially outweighed by

a danger of,” among other things, “confusing the issues,

misleading the jury, . . . [or] wasting time.” Fed. R. Evid.

403. “It is not an easy thing to overturn a Rule 403 ruling on

appeal.” United States v. Lentz, 524 F.3d 501, 525 (4th Cir.

2008) (internal quotation marks omitted). Certainly, the

“balance under Rule 403 should be struck in favor of

admissibility, and evidence should be excluded only sparingly.”

Id. (internal quotation marks omitted). But a district court’s

judgment concerning where that balance lies “will not be

overturned except under the most extraordinary circumstances.”

Id. (internal quotation marks omitted).

In Zayyad’s case, the district court correctly determined

that the gray-market evidence would confuse, mislead, and waste

time. The evidence would have distracted the jury from its

principal purpose: assessing Zayyad’s subjective belief and

actual knowledge. Instead, it threatened to lead the jury into

pure speculation based on no foundational evidence as to

Zayyad’s state of mind. Jurors might have been led to question

whether a reasonable person could have known or believed that

his pills came from the gray market. Yet, at least lacking any

evidence from Zayyad that he believed that he was selling gray-

market pills, the jury’s inquiry would have been complete

19
guesswork. The trial judge appropriately avoided that

possibility under its Rule 403 ruling.

For all the reasons noted above, the district court did not

err in barring Zayyad’s proposed cross-examination.

III.

In his second argument, Zayyad contends that the Government

provided insufficient evidence to prove the knowledge element of

the charged offenses. Zayyad notes that he never confessed to

knowing that the pills were fake, and no one recorded him

admitting that the pills were counterfeit. And in what Zayyad

calls the most “on-point” direct evidence (Appellant’s Br. 29) -

- his statements upon arrest and his statements to Elasmar –-

Zayyad indicated that he believed the pills were real. In

contrast, Zayyad says, all of the Government’s circumstantial

evidence was equally consistent with a seller who was selling

pills purchased from the gray market.

A.

“We review de novo the district court’s decision to deny a

defendant’s Rule 29 motion for judgment of acquittal.” United

States v. Royal, 731 F.3d 333, 337 (4th Cir. 2013). “[I]nsofar

as [Zayyad] challenges the jury’s finding that the [G]overnment

adequately proved the relevant offense element, we review that

20
argument for sufficiency of the evidence.” United States v.

Day, 700 F.3d 713, 725 (4th Cir. 2012).

“On an appeal challenging the sufficiency of evidence, we

assess the evidence in the light most favorable to the

government, and the jury’s verdict must stand unless we

determine that no rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.”

Royal, 731 F.3d at 337. Stated plainly, a sufficiency challenge

presents a “heavy burden,” which a defendant will only overcome

in “cases where the prosecution’s failure is clear.” United

States v. McLean, 715 F.3d 129, 137 (4th Cir. 2013) (internal

quotation marks omitted).

B.

Viewed in the light most favorable to the Government, the

evidence sufficiently established Zayyad’s knowledge. The

Government’s circumstantial fact evidence allowed the jury to

reasonably infer that the pills were counterfeit. The pills did

not come with traditional packaging or materials, and came at a

very low price, in enormous volumes, from sources that one would

not normally expect to have legitimate pills. These facts would

indicate that the pills were illegitimate. Zayyad also hid the

pills in his van and evidently had help in destroying additional

pill evidence at his home. The later attempt to conceal the

21
pills further indicates awareness that the pills were unlawful.

See United States v. Sasso, 695 F.3d 25, 29 (1st Cir. 2012)

(“[A]n attempt to cover up the commission of a crime implies

consciousness of guilt. Here, the jurors could reasonably infer

consciousness of guilt (and, thus, intent) from the defendant’s

endeavor to conceal his possession of the [instrument of the

crime.]” (internal citations omitted)). All these facts allowed

the jury to infer knowledge of false pills on Zayyad’s part.

See, e.g., United States v. Hassan, 280 F. App’x 271, 274 (4th

Cir. 2008) (unpublished) (holding that evidence supported

counterfeit drug convictions where, among other things, (1)

defendant admitted he obtained pills from an illegitimate

source; (2) pills came in illegitimate packaging; and (3) pills

came in abundant supply).

At the very least, a jury could have reasonably concluded

that Zayyad willfully blinded himself to the reality that the

pills were counterfeit. A jury may rely upon willful blindness

“when the defendant asserts a lack of guilty knowledge but the

evidence supports an inference of deliberate ignorance.” United

States v. Ruhe, 191 F.3d 376, 384 (4th Cir. 1999) (internal

quotation marks omitted); cf. United States v. Poole, 640 F.3d

114, 122 (4th Cir. 2011) (explaining in tax context that

“willful blindness” can satisfy scienter element “when the

evidence supports an inference that [the] defendant was

22
subjectively aware of a high probability of the existence of

. . . liability”). “[P]roof of actual knowledge is not

necessary if the defendant was willfully blind.” United States

v. Wells, 163 F.3d 889, 898 (4th Cir. 1998). And evidence like

that found here –- no documents for the drugs, strange

packaging, discreet transactions, and prices well below

wholesale –- all suggest that Zayyad was deliberately

indifferent to the fact that his drugs were counterfeit. See,

e.g., United States v. Ali, 735 F.3d 176, 188 (4th Cir. 2013)

(listing lack of documentation, “unmarked packages,” and

“discreet handoffs” among facts supporting inference of willful

blindness); United States v. Dais, No. 91-5820, 1992 WL 14595,

at *2 (4th Cir. Jan. 31, 1992) (unpublished) (noting that low

prices of goods should have suggested to defendant who purchased

them that goods were illegal).

C.

Zayyad insists that the Government’s evidence supports an

innocent inference that he believed that he was trafficking in

legitimate, gray-market goods. That’s beside the point.

For one thing, Zayyad did not introduce evidence concerning

gray-market goods at his second trial, and we can consider only

23
evidence from the second trial. 3 Zayyad asks us to judicially

notice that a gray market exists, but we do not take judicial

notice of a purported fact merely because a party tried to

establish it at a prior trial. “Only indisputable facts,” after

all, “are susceptible to judicial notice.” Nolte v. Capital One

Fin. Corp., 390 F.3d 311, 317 n.* (4th Cir. 2004). Under

Federal Rule of Evidence 201(b), facts are considered

indisputable when they are “generally known within the trial

court’s territorial jurisdiction” or they “can be accurately and

readily determined from sources whose accuracy cannot be

reasonably questioned.” But “[f]acts adjudicated in a prior

case,” or in this instance, a prior trial in the same case, “do

not meet either test of indisputability contained in Rule

201(b)[.]” Int’l Star Class Yacht Racing Ass’n v. Tommy

Hilfiger U.S.A., Inc., 146 F.3d 66, 70 (2d Cir. 1998).

For another thing, it does not matter that the Government’s

evidence also supported innocent inferences. “[A]s a general

proposition, circumstantial evidence may be sufficient to

support a guilty verdict even though it does not exclude every

reasonable hypothesis consistent with innocence.” United States

v. Osborne, 514 F.3d 377, 387 (4th Cir. 2008) (internal

3
Our review of the record reveals no stipulation or similar
agreement to incorporate any facts from the first trial into the
second trial.

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quotation marks and alterations omitted). “The jury was

entitled to reject the theory consistent with innocence and

accept the one consistent with guilt, so long as there was

substantial evidence for its choice.” United States v. Garcia,

868 F.2d 114, 116 (4th Cir. 1989).

Zayyad’s “direct” evidence -- namely his own statements

that the drugs were real -- does not matter either. Here again,

Zayyad mentioned these statements at the first trial, but not

the second. Even had the statements appeared at the second

trial, we would not decide differently. “[C]ircumstantial

evidence is not inherently less valuable or less probative than

direct evidence[.]” United States v. Martin, 523 F.3d 281, 289

(4th Cir. 2008) (internal quotation marks omitted). The jury

had every right to disregard “direct” evidence supporting

Zayyad’s theory in favor of the Government’s equally weighty

circumstantial facts supporting his guilt. In fact, the jury

had a rational reason to do so: Zayyad’s statements were

untrustworthy because he had a motive to lie to both his buyer

(to fetch a better price for his product) and the police (to

escape weightier charges). See Hassan, 280 F. App’x at 274

(finding that jury could infer defendant’s knowledge from

defendant’s insistence that the pills were effective to

potential purchasers, as “there would be no need for him to

vouch for the pill’s effectiveness” had the pills been genuine).

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 Accordingly, Zayyad’s challenge to the sufficiency of the

evidence fails. The district court did not err in denying his

Rule 29 motion.

IV.

For the reasons set forth above, the district court’s

judgment is

AFFIRMED.

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