United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 29, 2003
Charles R. Fulbruge III
No. 02-41642 Clerk
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROSA MARIA NUNEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. M-02-CR-366-1
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Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Rosa Maria Nunez was convicted of conspiracy to introduce an
adulterated device into interstate or foreign commerce with the
intent to commit fraud, two counts of introduction of an
adulterated device into interstate or foreign commerce with the
intent to commit fraud, and two counts of fraud by wire. See 21
U.S.C. §§ 331(a), 333(a)(2), 18 U.S.C. §§ 2, 371, 1343.
Nunez first argues that the evidence was insufficient to
establish that these substances were “devices.” Based on the
uncontroverted testimony of the Government’s expert that these
*
Pursuant to 5TH CIR. 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that this opinion should not be published and is not precedent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 5TH CIR.
R. 47.5.4.
No. 02-41642
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substances were “devices” if injected to change the shape or
structure of the body and the testimony of Nunez’ patients that
they received the injections to alter the appearance and
structure of their body parts, we conclude that the evidence was
sufficient to support her convictions. See United States v.
Ortega Reyna, 148 F.3d 540, 543 (5th Cir. 1998)(stating that
standard of review is whether any reasonable trier of fact could
have found that the evidence established the essential elements
of the crime beyond a reasonable doubt).
Nunez next argues that direct contact with the Food and Drug
Administration (“FDA”) is necessary to prove the intent to
defraud necessary to support convictions for conspiracy and for
introduction of an adulterated device with the intent to defraud.
Even in the absence of any direct contact by Nunez with the FDA,
our review of the record persuades us that Nunez’s actions were
“more than . . . incidental infringement of governmental
regulations,” and that her actions established the intent to
defraud necessary to support her conspiracy conviction. See
United States v. Haga, 821 F.2d 1036, 1041 (5th Cir. 1987).
Introduction of an adulterated device with the intent to defraud
can be established through deliberate avoidance of contact with
the FDA. See United States v. Arlen, 947 F.2d 139 (5th Cir.
1991). Because there is evidence in the record that Nunez
avoided contact with the FDA, we conclude that the evidence was
sufficient to support Nunez’s convictions on these counts.
No. 02-41642
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Nunez argues that there was insufficient evidence to show
that the use of cellular telephones constitutes use of wire
communications under the wire fraud act. Because this contention
was not raised below, our review is limited to determining
“whether there was a manifest miscarriage of justice.” United
States v. Laury, 49 F.3d 145, 151 (5th Cir. 1995)(citation
omitted). Nunez has not shown a “manifest miscarriage of
justice” on this issue. See 18 U.S.C. § 1343.
Nunez argues that two counts of the indictment were
“alternate counts,” differing only in the alleged victims; she
argues her conviction and sentence on both counts violate Double
Jeopardy. Because Nunez did not raise this issue below, we will
consider this claim only as it relates to the sentences imposed.
See United States v. Dixon, 273 F.3d 636, 641-42 (5th Cir. 2001),
cert. denied, 537 U.S. 829 (2002). We conclude that no Double
Jeopardy violation occurred. See id. (affirming separate
sentences although the two victims were robbed during a single
incident).
Nunez asserts that the district court erred in imposing a
special condition of supervised release that suspends supervised
release if she is deported and reinstates it when she returns to
the United States. Nunez misconstrues this provision; only
active supervision is suspended upon her deportation and the
actual term of supervised release will continue to run. See
United States v. Brown, 54 F.3d 234, 237-39 (5th Cir. 1995).
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Although Nunez’s brief discusses several other issues,
counsel concedes each of these issues is frivolous or meritless.
Therefore, we do not address them.
AFFIRMED.