[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
_____________________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 03-16487 May 27, 2005
_____________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 03-00070 CR-1-CB
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT J. WARHURST, JR.,
Defendant-Appellant.
____________________________
No. 04-10754
____________________________
D. C. Docket No. 03-00070-CR-1-CB
UNITED STATES OF AMERICA,
Plaintiff-Appellant
Cross-Appellee,
versus
ROBERT J. WARHURST, JR.,
Defendant-Appellee
Cross-Appellant.
_________________________
Appeals from the United States District Court
for the Southern District of Alabama
_________________________
(May 27, 2005)
Before EDMONDSON, Chief Judge, DUBINA and HULL, Circuit Judges.
PER CURIAM:
A jury convicted Defendant-Appellant Warhurst of violating federal drug
laws 21 U.S.C. §§ 841(c)(2) and 846. The district court charged the jury with a
deliberate ignorance instruction and downwardly departed for the sentence.
Warhurst appeals the jury instruction, and the Government cross-appeals the
downward departure. On both issues, we affirm.1
FACTS
Warhurst owned and served as the pharmacist of a drug store located near
Mobile, Alabama. During the course of 2000 and 2001, several persons purchased
1
This case initially was consolidated with the Government’s appeal of one of Warhurst’s co-
defendants, Wells. In the interim between the trial and the oral argument in this case, Wells died.
We granted the Government’s unopposed motion to vacate Wells’s conviction. Wells’s case does
not affect this one.
2
large quantities of over-the-counter pseudoephedrine, like and including the
decongestant Sudafed. Often the large quantities were used to manufacture the
illegal drug, methamphetamine.
For example, over the course of four months, James Harrell said he
purchased about $60,000 to $80,000 worth of pseudoephedrine. The individual
purchases were significant: $150 each on the first and second day he bought, $350
the following day, and so on almost every day for the four months.2
Byron Jones purchased thirty-five packages of pseudophedrine from
Warhurst’s store in the fall of 2000. Jones’s usual practice was to purchase around
200,000 to 300,000 mg of pseudoephedrine per week from Warhurst, costing
Jones about $200 to $400 each time. From time to time, one of Warhurst’s
employees (not Warhurst) informed Jones when the next shipment of
pseudoephedrine would arrive. On the expected day, Jones would often wait
outside the store for the truck’s arrival. His purchases totaled $7000 to $8000.
Beginning in the spring of 2001, Vicki Carr also made substantial purchases
at Warhurst’s store. The first day she purchased “everything off the shelf,” costing
her about $100. She repeated this conduct about ten or twelve times, and she also
ordered large quantities of pseudoephedrine through the pharmacy an additional
2
Harrell testified that, if he was not personally in the store, he “would have somebody go.”
3
five to seven times. Carr estimates that, in total, she spent approximately $1500 to
$1600 at Warhurst’s pharmacy from the spring of 2001 through 8 September 2001.
Mrs. Carr’s husband, Cecil Carr, also began purchasing psuedoephedrine from
Warhurst’s pharmacy in 2000. He purchased thirty boxes the first time he
entered. He repeated this twelve times over the year, causing him to spend
between $1000 and $1100 at Warhurst’s store. The jury also heard testimony from
other witnesses who purchased $200 of pseudoephedrine over a two-week period.
As the police began arresting these persons, the police focused on
Warhurst’s store. On 12 August 2002, Mobile Police Officer Chad Roberts
entered Warhurst’s store undercover. He asked Warhurst if the twelve boxes on
the shelf were all the Sudafed that Warhurst had. Warhurst answered
affirmatively, and Roberts bought the twelve boxes and an additional nine boxes
of different pseudoephedrine products. Roberts returned four days later. That day
he purchased approximately twenty-six boxes of pseudoephedrine medicine.
These purchases totaled about $300. About nine days later, Roberts purchased an
additional $337 worth of pseudoephedrine products. In September, Roberts made
two more controlled buys of pseudoephedrine products: one on 9 September
totaling $118, and two on 11 September totaling $403.
4
Later, Officer Roberts used another tactic: explaining to the clerks (not
Warhurst) how much money he had and saying that he wanted to purchase as
much Sudafed as the amount would permit. Warhurst’s employees obliged.
Roberts purchased $1000 worth on 17 September; $400 on 14 January.3
As part of the same task force as Officer Roberts, Officer Barker of the
Saraland Police also made a controlled buy on 17 September 2002. He purchased
$856 worth of Sudafed. The Government also produced evidence documenting
that Warhurst’s store sold significantly more pseudoephedrine products than other
stores in the surrounding area.
At least one of Warhurst’s employees, the cashier, Rhonda McInvale, also
testified. She explained that Warhurst knew about the money that came into the
store during each business day. McInvale said that Warhurst often kept $500 to
$1000 in cash and gave her the remaining checks to deposit.
As Warhurst points out, however, none of the purchaser-witnesses told
Warhurst about their illicit plans for the Sudafed. So the Government offered
circumstantial evidence of proof of Warhurst’s knowledge. From the buyers, the
Government elicited this kind of testimony: (1) James Harrold’s statement that
3
On this day, Officer Roberts also pre-ordered a case, leaving his cell phone number with the
clerk so she could notify him of its arrival.
5
Warhurst told him to purchase his $350 worth of Sudafed at the front of the store,
opposite from where Warhurst worked; (2) Byron Jones’s recollection that when
Warhurst’s store had no Sudafed, Warhurst told him to call a certain employee or
return on Tuesday or Thursday when the orders arrived; (3) Cecil Carr’s
description of Warhurst as being near the register when Carr purchased the large
quantities; (4) Chad Roberts testimony that Warhurst was in the store each time he
purchased pseudoephedrine, and that Roberts collected the large quantities of the
product no more than five yards from Warhurst whenever he made a purchase; and
(5) John Barker explained that he made eye contact with Warhurst after taking at
least twenty boxes of Sudafed off the shelf near Warhurst, and after posing his
body so that Warhust could see him taking the individual boxes one-by-one.
The Government also elicited testimony from the Executive Director of the
Alabama Board of Pharmacy. He testified that all registered Alabama pharmacists
like Warhurst received newsletters from at least November 1994 through 2002 that
placed them on notice to watch for excessive purchases of pseudoephedrine and
ephedrine. A compliance coordinator with the pharmaceutical wholesale
distributer that sold Sudafed to Warhurst’s store testified as well. He recalled
speaking to whom he believed to be the pharmacist at Warhurst’s store.
According to his testimony, the compliance coordinator told the pharmacist that
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the distributor planned to limit the quantities sold to Warhurst’s store because the
level of pseudoephedrine purchases by the store reached suspicious levels. The
coordinator further described that pharmacist’s reaction as being upset that the
distributor would limit the sales.
Last, McInvale testified to a conversation she had with Warhurst that a jury
could believe established his knowledge: “On one occasion when I put some
money in his register he [Warhurst] made the remark that he didn’t think we were
busy the day before. And I told him that I put eighteen hundred dollars in there
from our register from the Sudafed sales and he didn’t say anything.”
At trial, Warhurst’s main defense was that he did not know the purchases
were excessive or illegal. He argued that any conspiracy or knowledge of
suspicious activity resided with the store clerks who rang up the purchases. And
over Warhurst’s objection, the district court gave a deliberate indifference
instruction on the knowledge element of the crime:
Now, when knowledge of the existence of a particular
fact is an essential part of a defense, such knowledge may be
established if the defendant is aware of a high probability of
its existence. Unless the defendant actually believes that it
does not exist. So with respect to the issue of the
defendant’s knowledge in this case, if you find from the
evidence beyond a reasonable doubt that the defendant
believed that pseudoephedrine, a listed chemical, sold by his
employees was being used to manufacture methamphetamine,
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deliberately and consciously tried to avoid learning that the
pseudoephedrine was being used for this purpose in order to
be able to say if apprehended that he did not know the
pseudoephedrine being sold by his employees was being used
to manufacture methamphetamine, you may trat such
deliberate avoidance of positive knowledge as the equivalent
of knowledge.
In other words, you may find that a defendant acted
knowingly if you find beyond a reasonable doubt either, one,
that the defendant actually knew or had reasonable cause to
believe that pseudoephedrine was being used to manufacture
methamphetamine or, two, that he deliberately closed his eyes
to what he had every reason to believe were the facts. I must
emphasize however, that the requisite proof of knowledge on
the part of the defendant cannot be established by merely
demonstrating that the defendant was negligent, careless, or
foolish.
The jury disagreed with Warhurst’s defense. It returned a guilty verdict on
all ten counts: one for conspiracy to possess pseudoephedrine with intent to
manufacture methamphetamine, 21 U.S.C. § 846, and nine for possession of
pseudoephedrine with intent to manufacture methamphetamine, 21 U.S.C. §
841(c)(2).
Based on Warhurst’s convictions, the United States Sentencing Guidelines
imposed a range of imprisonment from 235 to 293 months. The trial court initially
sentenced Warhurst (based only on counts one, three and ten) to forty-eight
months in prison and supervised release thereafter. In addition, the court imposed
fines totaling $25,300. The district court cited several reasons for its downward
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departure: (1) falling outside the heartland; (2) that Warhurst would not survive an
imposition of the full sentence; (3) other employees “who were arguably equally
as culpable” were not prosecuted;4 and (4) that, at the time of sentencing, Warhurst
was advanced in age (seventy-two), and his physical health was poor.5
On appeal, Warhurst challenges the use, but not the wording, of the
deliberate ignorance charge. The Government cross-appealed, arguing that the
district court erred by granting Warhurst the downward departure.
DISCUSSION
1. The Deliberate Ignorance Charge
Warhurst argues that insufficient evidence supported the use of the
deliberate ignorance instruction. He does not challenge the wording of the
instruction or that it can sometimes be used.6 We review the legal correctness of a
4
The district court did not cite this reason in its published report.
5
The district court explained that Warhurst submitted his medical record into evidence. The
record indicates that he suffered from various ailments, including arthritis, peptic ulcers, diabetes,
hypertension, bulging disk in the spine, and heart disease. It held a resentencing hearing on 5
February 2004 to add the additional counts, but the court imposed the same sentence. In the
resentencing, the trial judge said that he imposed the sentence to meet the objectives of “punishment,
deterrence and incapacitation.”
6
By the way, that argument is foreclosed by United States v. Prather, 205 F.3d 1265, 1270
(11th Cir. 2000) (upholding use of deliberate ignorance instruction for 18 U.S.C. § 841(3)(2)
9
decision to charge the jury with particular instruction de novo. United States v.
Prather, 205 F.3d 1265, 1270 (11th Cir. 2000) (citation omitted). Like the panel in
Prather, we say that courts should apply the deliberate ignorance instruction “‘only
in those comparatively rare cases where . . . there are facts that point in the
direction of deliberate ignorance.’” 205 F.3d at 1270 (ellipsis in original) (citing
United States v. Rivera, 944 F.2d 1563, 1570 (11th Cir. 1991)).
Prather addressed similar facts to those here. The defendant was the
president of a mail-order corporation that distributed over-the-counter
pharmaceuticals, including pseudoephedrine. 205 F. 3d at 1268. Facts
demonstrated he had some knowledge that the pseudoephedrine would eventually
be used to manufacture methamphetamine. These facts included that the
defendant turned down a request to sell one hundred cases of pseudoephedrine to
an person’s home because, according to the defendant, “the ‘cops would be hot on’
both [the defendant and buyer].” Id. The jury also heard evidence that Prather
knew for about a year that “several of his customers” were under investigation for
drug related activities, but Prather continued to sell them pseudoephedrine. Id.
Also, an attorney warned Prather that his sales “might be considered prima facie
conviction).
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evidence of an intent to violate the law.” Id. Accordingly, this Court concluded
sufficient evidence warranted the instruction. Id. at 1270.
In Rivera, we said that the government did not provide sufficient evidence
to warrant the deliberate ignorance instruction. 944 F.2d at 1572. There, the
Government seized the suitcases of three inbound passengers from Columbia. The
Government provided no evidence that the passengers knew the suitcases were
altered (false bottoms) and contained cocaine, nor did the Government establish
that anyone gave the defendants the suitcases for delivery. Id.
In the present case, we conclude the district court did not err by giving the
deliberate ignorance instruction. True, the Government produced more
compelling evidence in Prather. And “[t]he danger of overly liberal use of such an
instruction in an inappropriate case is that juries will convict on a basis akin to a
standard of negligence: that the defendant should have known that the conduct
was illegal.” Rivera, 944 F.2d at 1570 (emphasis in original). But sufficient
evidence existed here to allow the charge.
As the store owner, Warhurst handled all the money and very likely knew of
the increased sales.7 In addition, he was in the store for the vast majority of the
7
McInvale’s testimony about the $1800 supports the link between increased sales and Sudafed
purchases.
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major purchases and physically near the Sudafed. Moreover, Warhurst facilitated
Byron Jones’s excessive purchases by telling him when the orders arrived. This
evidence satisfies that Warhurst knew persons were purchasing significant
amounts of pseudoephedrine.
To show Warhurst’s knowledge that the purchasers would likely use the
drug illegally, the Government produced pharmacy newsletters warning of
excessive purchases being linked to methamphetamine production. And, the call
from the compliance coordinator indicates that Warhurst knew such mass sales
were a problem. This evidence supports “the inference that the defendant was
aware of a high probability of the existence of the fact in question.” United States
v. Alvarado, 838 F.2d 311, 314 (9th Cir. 1987). The instruction was proper.
2. Sentencing Issues.
After the benefit of oral argument and our review of the record, we decide
that the Government’s cross-appeal lacks merit. Accordingly, on both the
conviction and the sentence imposed, the district court is affirmed.8
AFFIRMED.
8
Warhurst moved to amend his brief to substitute the following conclusion: “The appellant
respectfully moves this Honorable Court to reverse his conviction and sentence, grant him a new trial
or remand the case to the district court for resentencing.” We deny that motion. Even if we granted
the motion, we conclude that it has no substantive impact on our resolution of this case.
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