In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2566
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
R ICKY B OROS,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 06 CR 772—Joan B. Gottschall, Judge.
A RGUED O CTOBER 19, 2011—D ECIDED F EBRUARY 9, 2012
Before F LAUM and M ANION, Circuit Judges, and M AGNUS-
S TINSON, District Judge.
F LAUM, Circuit Judge. Ricky Boros, also known as Vince
Kwiatkowski, appeals his convictions for conspiracy to
import controlled substances, conspiracy to possess
controlled substances with the intent to distribute, and
The Honorable Jane E. Magnus-Stinson, District Judge for
the United States District Court for the Southern District of
Indiana, sitting by designation.
2 No. 10-2566
conspiracy to launder money with the intent to promote
the importation of controlled substances. The sole argu-
ment that he makes on appeal is that the district
court erred by admitting the expert testimony of pharma-
cologist Dr. Robert Barkin. Dr. Barkin testified about the
classification of various drugs, their side effects, and the
medical supervision needed to prescribe them. Boros
contends that this evidence was not relevant as defined
by Federal Rule of Evidence 401 and that its admission
was not harmless. We disagree. Although the testimony
had only minimal relevance, the threshold for relevance
under Rule 401 is quite low. The parts of the testimony
related to side effects and birth defects, however,
should have been excluded under Rule 403. Because
the probative value was negligible, this testimony’s
potential for unfair prejudice to Boros should have
tipped the scales in favor of exclusion. Nonetheless, we
find this error to be harmless given the weight of the
government’s evidence. We therefore affirm the judg-
ment of the district court.
I. Background
A. Factual Background
Boros, along with Larry and Gary Calow, 1 founded an
Internet pharmacy business in March 2003, which they
incorporated in Belize under the name Purchase Meds, Inc.
1
To avoid confusion, we refer to the Calow brothers by their
first names when we refer to them individually in this opinion.
No. 10-2566 3
(“PMeds”).2 PMeds sold prescription drugs, including
controlled substances, to customers via its website,
PMeds.com. A handwritten “letter of intent” memori-
alized its formation, the initial distribution of shares,
and the roles of the founders. Boros assumed the role
of corporate secretary. The Calows worked from Mexico
and Tinley Park, Illinois, and Boros worked from his
home in Oak Brook, Illinois. By 2006, PMeds had gross
sales in excess of $5.5 million.
Although the website took orders for prescription
medication, it did not require customers to have prescrip-
tions. As of April 14, 2003, the website stated, “[I]f you do
not supply a prescription, we will supply a prescription
at no cost to you.” As of June 27, 2004, the website prom-
ised to provide a “free online consultation with a
licensed U.S. physician” to obtain prescription medica-
tion. The website required purchasers of controlled sub-
stances to disclaim their affiliation with government
and news agencies. PMeds disclaimed responsibility for
confirming importation regulations and placed the risk
of loss on customers unless U.S. Customs provided
seizure notification and proof of reclaim.
Boros’s responsibilities for PMeds included advertising,
directing website traffic, analyzing sales and inventory,
negotiating prices with distributors, and obtaining pre-
scriptions for orders stopped at the U.S.-Mexico border.
2
Around this time, they also worked to set up
purchasemeds.com, intending for it to be their “one legal
pharmacy.”
4 No. 10-2566
Boros sent several emails to the Calows in 2003 and
2004 that referenced drug sales, including the sale of
controlled substances. A spreadsheet attached to one of
the emails listed the names and quantities of 235
products, including controlled substances, that PMeds
had sold in the last three months. Boros picked up
checks for PMeds on a weekly basis from the Tinley
Park office, deposited them into his account, and gave
the cash to Gary. Boros also received cash payments.
His active participation with PMeds appears to have
ended in mid-2004.
Joshua Morrow and Angela Burdick both worked for
PMeds and later served as witnesses for the govern-
ment. Morrow was initially a customer of PMeds and
then started smuggling drugs for PMeds. He was
arrested in 2005 for attempting to drive 200 packages
of drugs into the United States. Burdick worked for
PMeds in 2003 and was given a grant of immunity in
exchange for her testimony about PMeds and the defen-
dants’ activities.
In 2006, the Drug Enforcement Administration (“DEA”)
conducted several undercover purchases of controlled
substances through PMeds’s website. In October 2006,
law enforcement officers, accompanied by a DEA
forensic chemist, executed a search warrant at the Tinley
Park office and found flasks, spa oil bottles, a vacuum
pump, and a vacuum filter flask. Forensic testing
detected numerous types of steroids. In January 2007,
Mexican police searched Alfa Pack Shipping Services
in Metepec, Mexico, and found an invoice for spa oil
No. 10-2566 5
bottles to be shipped from Gary’s wife to Larry in Tinley
Park. Further, IRS Special Agent William Desmond re-
viewed the records of the two bank accounts associated
with PMeds. He found that fifteen credit card companies
had transferred more than $5.5 million into the two
accounts between May 15, 2003 and December 4, 2006,
that nearly $2.5 million was wired from these accounts
to Latin America, and that $47,074.32 was wired from
these two accounts to Boros between December 30, 2003
and July 16, 2004.
On August 8, 2007, a grand jury returned a super-
seding indictment 3 against Boros and five other de-
fendants for conspiracy to import Schedule II, III, and IV
controlled substances, in violation of 21 U.S.C. § 963 and
18 U.S.C. § 2; conspiracy to possess controlled sub-
stances with the intent to distribute, in violation of 21
U.S.C. § 846 and 18 U.S.C. § 2; money laundering, in
violation of 18 U.S.C. § 1957 and 18 U.S.C. § 2; and con-
spiracy to launder money out of the United States with
the intent to promote the importation, possession, and
distribution of controlled substances, in violation of
18 U.S.C. § 1956 and 18 U.S.C. § 2. The government sub-
sequently dismissed the substantive money laundering
charges.
3
The original charges involved conspiracy to distribute
controlled substances with a 28-count indictment returned
by the grand jury.
6 No. 10-2566
B. Procedural Background
The government disclosed prior to trial that it intended
to call Dr. Barkin, a clinical pharmacologist, as an expert
witness in clinical pharmacy. Boros filed a motion in
limine to bar this testimony, arguing that evidence
about the dangers of taking controlled substances with-
out medical supervision “is a scare tactic without pro-
bative value.” The district court found the motion to
be untimely but still expressed some reservations:
I’m going to allow this, but keep it under control.
In other words, I don’t want this to be inflammatory.
If he wants to just testify that the drug has side
effects, that when it’s prescribed—whatever he’s
going to testify to, a doctor can watch the prescrip-
tion, etcetera, but I don’t want this to get out of
control and have him testifying about the terrible
things that can happen to people if they take these
drugs without a prescription, except indicating it
factually, and briefly, and succinctly.
The district court placed the onus on the defense to
object if it perceived the testimony to cross the line estab-
lished by the evidentiary ruling.
After the government tendered Dr. Barkin as an
expert, Boros’s counsel reminded the court of its pre-trial
ruling and the court held a sidebar. Boros’s counsel
argued that Dr. Barkin should not “be out there raising
prejudices about how terrible it is to take medicines
without a prescription, that there’s danger in taking
medicine without a prescription, because that’s got
nothing to do with what we’re on trial for.” The gov-
No. 10-2566 7
ernment responded that Dr. Barkin would “address a
number of controlled substances that PMeds dealt with,
and talk about them, and the need for medical supervi-
sion and prescriptions, and the effects on people.”
The court viewed the matter as a question of “for how
long and in what detail are we going to wallow in it” and
held that “the jury is entitled to know, without going . . .
into great, great detail on this, why these subjects
are regulated and what the issues are about them. . . .
I think if there is an issue, it’s a 403 issue.”
Dr. Barkin began with the schedule of controlled sub-
stances, explaining the significance of the numerals and
the classification of various drugs. He then discussed
the Physician Desk Reference (“PDR”), which was ad-
mitted without objection. Dr. Barkin read aloud parts of
the PDR pertaining to Schedules II, III, and IV, which
discuss the requirements for prescriptions of specific
substances and the risk of abuse. For example, he
quoted the PDR as stating that the use of substances in
Schedule II “may lead to severe physical or psychologic
depend[e]nce. Prescriptions must be written in ink, or
typewritten, signed by the practitioner. Verbal prescrip-
tions must be confirmed in writing within 72 hours,
and may be given only in a genuine emergency. No
renewals are permitted.”
Dr. Barkin continued by addressing the factors
that physicians consider prior to prescribing controlled
substances, specifically referencing the procedures fol-
lowed by his employer, the Rush Pain Center. He
testified about the need to meet with patients in
8 No. 10-2566
person and to determine the correct dosage on an indi-
vidual basis. He explained that dosage depends on
the patient’s kidney and liver function, weight, height,
other medications being taken, and child-bearing poten-
tial. Dr. Barkin emphasized that this could not be done
over the Internet.
Next, Dr. Barkin addressed thirteen specific drugs or
types of drugs, explaining whether they are controlled
substances,4 how they are scheduled, why they are pre-
scribed, and why a prescription is needed.5 Dr. Barkin
testified that Ritalin is a Schedule II controlled sub-
stance used to address Attention Deficit Disorder.
He explained that use of Ritalin requires in-person moni-
toring and that users should not crush or snort it.
He warned that use of Ritalin could result in birth
defects and psychotic episodes, as well as “[d]rug
depend[e]nce, abnormal thinking, and abnormal
behaviors, frank psychotic episodes.” In discussing Val-
ium, Ativan, and Xanax, Dr. Barkin identified the
severe risk of birth defects and the danger of seizures if
a patient abruptly stops taking these substances. He
testified that Rohypnol is an “extremely fast onset
sedative hypnotic” that is not available in United States
and that causes a user to become “completely disinhibited,
helpless, very sedated” with a “complete lack of recall
4
The district court later instructed the jury that, as a matter
of law, certain substances are controlled.
5
Boros’s counsel objected at one point, but the district court
overruled this objection.
No. 10-2566 9
and memory.” Dr. Barkin explained that Clenbuterol, used
to treat asthma and to strengthen animals, is not a con-
trolled substance but is nonetheless unavailable in the
United States due to “tremendous risks.”
Dr. Barkin described anabolic steroids in greater
detail, beginning with their Schedule III classification
and their use in treating testosterone deficiency, breast
cancer, and prostate cancer. He cautioned that users
must be monitored due to the severity of the potential
side effects, which include large breasts for males, viriliza-
tion in women, agitation, anger, violence, episodic dis-
control, cardiac disease, increase in cholesterol, birth
defects, coagulation problems, adverse effects on the
liver, and stunted growth for teens. He referred to
Phentermine, Didrex, and Bontril as controlled sub-
stances that are used as appetite suppressants. Dr. Barkin
focused on the risks of Ambien and Halcion, both
Schedule IV controlled substances that are used as sleep
aids. Before prescribing Ambien, physicians counsel
the patient to determine the cause of the insomnia and
take into account the patient’s liver function, kidney
function, psychopathology, and alcohol usage. Halcion
comes with side effects of birth defects and fast-
onset memory impairment and judgment problems.
Dr. Barkin noted that Halcion has “grown into sub-
stantial disuse” due to the severity of these side effects.
Finally, Dr. Barkin described the weight-loss drug,
Meridia, which requires monitoring because it can
cause seizures and affects the rate, rhythm, conduction,
and contractility of the heart.
10 No. 10-2566
During cross-examination, Dr. Barkin admitted that
he does not know who the clients are or have any
personal knowledge of the facts of this case.
In its closing argument, the government emphasized
Dr. Barkin’s testimony, connecting it to the offenses
charged in the following manner:
He told you how important it is to be under the care
of a physician when taking controlled substances
like Ritalin, and Ambien, and anabolic steroids. He
also told you that those substances can harm preg-
nant woman. He said that some of the drugs
that were sold by PMeds, like Rohypnol, are so dan-
gerous that they aren’t even allowed to be
sold in the United States. No doctor can
prescribe Rohypnol. But you can get Rohypnol from
Pmeds.com. . . .
Now, use your common sense here. Vince
Kwiatkowski is excited about selling illegal
drugs. He says that they haven’t shipped all their
orders. He[] knows what[’s] going on with the busi-
ness. He knows what drugs they’re selling. He
knows what dangerous, illegal, controlled sub-
stances they need more of. Drugs like steroids and
Xanax. Those are some of the drugs that Dr. Barkin
told you should never be used without a doctor’s
prescription or without a doctor’s care. He told
you they’re dangerous drugs. He told you that
they’re addictive, and he told you that they
have harmful side effects. He said some of them
cause birth defects. There weren’t any doctors here,
except for Dr. Ben, who is being paid by Vince
No. 10-2566 11
Kwiatkowski to write prescriptions for people he
had never had.
Boros’s counsel also referred to Dr. Barkin’s testimony
during his closing argument, saying: “[I]t just doesn’t
make sense to me that you would, as a prosecutor, bring
some of this stuff forward, because . . . somebody like
Dr. Barkin, who they dragged out here, he was very
frank, he didn’t know a single thing about this case.”
On May 20, 2008, a jury returned a guilty verdict on
all three conspiracy charges. The court sentenced Boros
to nine years’ imprisonment, followed by five years of
supervised release.
II. Discussion
Boros argues that the district court erred in admitting
Dr. Barkin’s testimony because the testimony was not
relevant. Viewing the testimony in the context of the
circumstances of this case, we determine that the testi-
mony had only minimal relevance as background evi-
dence. While we conclude that the testimony satisfies
Rule 401’s low threshold for relevance, we hold that
certain parts of the testimony should have been
excluded under Rule 403 due to their potential for unfair
prejudice. We nevertheless affirm the judgment of the
district court because we conclude that the erroneous
admission of Dr. Barkin’s complete testimony was harm-
less.
12 No. 10-2566
A. Relevance Under Rule 401
We review a district court’s decision to admit or
exclude evidence for abuse of discretion. United States
v. Penaloza, 648 F.3d 539, 544 (7th Cir. 2011). We have
recognized that a district court has “wide discretion”
when it rules on the admission of evidence. United States
v. Hall, 165 F.3d 1095, 1117 (7th Cir. 1999) (quoting
United States v. Wilson, 985 F.2d 348, 351 (7th Cir. 1993)).
We “will not substitute [our] opinion for that of the
trial judge merely because we may be inclined to
rule differently on the question of relevancy.” United
States v. Bouye, 688 F.2d 471, 476 (7th Cir. 1982). Rule 401
defines relevant evidence as evidence having “any ten-
dency to make a fact more or less probable than
it would be without the evidence” and where “the fact
is of consequence in determining the action.” F ED. R.
E VID. 401. Rule 402 provides the corollary that, with
certain exceptions, “[r]elevant evidence is admissible”
and “[i]rrelevant evidence is not admissible.” FED. R.
E VID. 402. A party faces a significant obstacle in arguing
that evidence should be barred because it is not
relevant, given that the Supreme Court has stated that
there is a “low threshold” for establishing that evidence
is relevant. Tennard v. Dretke, 542 U.S. 274, 285 (2004).
We have recently asserted that “[t]he Federal Rules
of Evidence do not limit the government to the ‘most’
probative evidence; all relevant evidence is admissible
and the Rules define relevance broadly.” United States
v. McKibbins, 656 F.3d 707, 711 (7th Cir. 2011).
Boros argues that the district court abused its discre-
tion because Dr. Barkin’s testimony was not relevant.
No. 10-2566 13
Specifically, Boros contends that the testimony did not
make it any more or less likely that the conspiracy
existed or that Boros knew about the conspiracy. He
argues that the testimony was introduced only to
frighten the jurors with evidence of the possible effects
of drug use. In response, the government argues that
the testimony was relevant both for background pur-
poses and for contesting Boros’s claim that he did not
know that the operations were illegal.
Boros is incorrect in his assertion that evidence is
only relevant if it relates to an element of the offense.
Rule 401 makes clear that “[e]vidence which is es-
sentially background in nature can scarcely be said to
involve disputed matter, yet it is universally offered
and admitted as an aid to understanding.” F ED. R. E VID.
401 advisory committee’s note. Under this theory of
relevance, we have explained that one measure of rele-
vance is whether “its exclusion would leave a chronologi-
cal and conceptual void in the story.” United States v. West-
brook, 125 F.3d 996, 1007 (7th Cir. 1997) (quoting Wilson
v. Groaning, 25 F.3d 581, 584 (7th Cir. 1994)) (internal quota-
tion marks omitted). Thus, even though evidence may
not relate directly to the defendant’s innocence or guilt,
or even to a fact in dispute, evidence is relevant when it
provides background information about the defendant
or the offenses charged. Certain background evidence may
touch on ancillary, rather than the core, issues: evidence
of this nature has marginal relevance, but it nonetheless
satisfies Rule 401. Yet because background evidence
about ancillary matters has only marginal relevance,
it is more susceptible to exclusion under Rule 403’s bal-
ancing of prejudice and probative value.
14 No. 10-2566
Dr. Barkin’s testimony falls within the broad category
of background evidence because it aids the jury’s under-
standing of the substances that PMeds was obtaining,
importing, and selling. The status of the substances
as controlled relates to an element of the offenses. See 18
U.S.C. § 1956; 21 U.S.C. §§ 841, 846, 952, 963. The district
court’s issuance of a jury instruction on this matter con-
firms the relevance of this topic. The remainder of the
testimony—the prescribed uses, the degree of physician
monitoring, the accessibility, and the side effects—
are arguably relevant for the purpose of providing a
complete background picture to the jury.6 Whether
this ancillary background evidence is unduly prejudi-
cial—and thus should have been excluded—is not a
question that we consider under Rule 401 but rather
under Rule 403.7
6
Although we accept the government’s argument that
Dr. Barkin’s testimony is relevant as background, we reject
the government’s alternative argument—that the testimony
is relevant for disputing Boros’s contention that he lacked
knowledge of the pharmacy’s illegality. The government’s
argument fails because the regulations and risks associated
with these drugs are relevant considerations only if Boros
knew or could be expected to know this information. Only
if Boros knew this information could Dr. Barkin’s testimony
give rise to an inference that Boros knew that PMeds was
an illegal pharmaceutical operation.
7
Boros relies heavily on United States v. Cunningham, 462
F.3d 708 (7th Cir. 2006), for the proposition that certain back-
ground evidence is not relevant, but Cunningham’s holding
(continued...)
No. 10-2566 15
We therefore conclude that the district court did not
abuse its discretion in determining Dr. Barkin’s testi-
mony to be relevant. However, even accepting
Dr. Barkin’s testimony as satisfying Rule 401, we
conclude that parts of his testimony do not satisfy
Rule 403 and thus should have been excluded.
B. Prejudice Under Rule 403
Rule 403 permits a district court to “exclude relevant
evidence if its probative value is substantially out-
weighed by a danger of . . . unfair prejudice, confusing the
7
(...continued)
and reasoning are inapposite. In Cunningham, we held that a
DEA agent’s extensive testimony about the process he
followed to obtain a wiretap, including numerous probable
cause determinations by judges and government officials,
should have been excluded as irrelevant. Id. at 709. We per-
ceived this testimony as offered solely to “vouch” for how good
the evidence was and to “bolster” the credibility of unnamed
actors. Id. at 713. We have subsequently declined to apply
Cunningham’s holding where wiretap testimony did not raise
these concerns. See, e.g., United States v. Hendrix, 509 F.3d 362,
372-73 (7th Cir. 2007). Our concerns about bolstering and
vouching in the wiretap context are not present here. More-
over, we are guided by Rule 401 and the advisory committee’s
note, which make background evidence generally admissible
as an aid to understanding. Although we rely in this case
on Rule 403 while we relied in Cunningham on Rule 401, our
ultimate conclusion is the same: parts of the evidence
should have been excluded from trial.
16 No. 10-2566
issues, misleading the jury, undue delay, wasting of
time, or needlessly presenting cumulative evidence.” F ED.
R. E VID. 403. Recognizing that “ ‘most relevant evidence
is, by its very nature, prejudicial,’ we have emphasized
that evidence must be unfairly prejudicial to require
exclusion.” United States v. Hanna, 630 F.3d 505, 511 (7th
Cir. 2010) (quoting United States v. Thomas, 321 F.3d 627,
630 (7th Cir. 2003)). The amount of prejudice that is
acceptable varies according to the amount of probative
value the evidence possesses. “[T]he more probative the
evidence, the more the court will tolerate some risk of
prejudice, while less probative evidence will be received
only if the risk of prejudice is more remote.” United States
v. Vargas, 552 F.3d 550, 557 (7th Cir. 2008) (quoting
United States v. Menzer, 29 F.3d 1223, 1234 (7th Cir.
1994)). We give “special deference” to a district court’s
findings under Rule 403, and we review for abuse of
discretion. See United States v. Moore, 641 F.3d 812, 826
(7th Cir. 2011).
The district court made several comments, which indi-
cated that it was aware of the prejudice that could
result from Dr. Barkin’s testimony. The district court
warned, “I don’t want this to get out of control and
have him testifying about the terrible things that can
happen to people if they take these drugs without a
prescription, except indicating it factually, and briefly,
and succinctly.” But given the limited probative value
of this testimony, the court erred by allowing even
factual, brief, and succinct testimony about the side
effects and birth defects associated with the drugs.
No. 10-2566 17
The mere acknowledgment that Dr. Barkin’s testi-
mony was relevant under Rule 401 as background evi-
dence does not signify that all of the testimony passed
muster under Rule 403. When background evidence is
so removed from the focus of the case, as it was here,
even factual, brief, and succinct testimony may be
unfairly prejudicial to the defendant. We have stated
that both probative value and prejudice must be deter-
mined in context. See United States v. Tanner, 628 F.3d 890,
901-03 (7th Cir. 2010) (holding police officers’ testimony
to be “unduly prejudicial (and such a waste of time)
relative to its nearly-nonexistent probative value”). The
district court does not appear to have focused on this
interaction.
Dr. Barkin’s testimony was relevant because it consti-
tuted background evidence about the regulatory scheme
and the dangers that could result from PMeds’s illegal
operation. However, this background evidence bore
minimal probative value given the particular offenses
with which Boros was charged. The jury was asked to
determine whether Boros was guilty of conspiracy to
import controlled substances, conspiracy to possess
controlled substances with intent to distribute, and con-
spiracy to launder money.8 These offenses do not require
8
The first count required the government to prove that
Boros conspired to import controlled substances into the
United States with the knowledge that some of those sub-
stances were controlled. See 21 U.S.C. § 963; see also 21 U.S.C.
§ 952. The second count required the government to prove
(continued...)
18 No. 10-2566
the government to prove that Boros was aware of the
regulatory scheme or the medical risks. These offenses
also do not require proof that anyone was injured as a
result of Boros’s or his co-conspirators’ conduct. In
United States v. Mansoori, 304 F.3d 635, 654 (7th Cir. 2002),
we held that expert testimony about the history and
structure of a gang was admissible as “useful back-
ground” and was not unfairly prejudicial or confusing.
We do not reach the same conclusion as to Dr. Barkin’s
testimony about the drugs’ side effects, which was
less useful and more prejudicial.
We have previously held that evidence showing
that defendant’s customers died after buying drugs
from him should have been excluded under Rule 403
because the evidence “had nothing to do with the
charges in th[e] case.” United States v. Cooper, 591 F.3d
582, 589 (7th Cir. 2010). Dr. Barkin’s testimony is less
prejudicial than the testimony in Cooper because it
does not directly connect the side effects to Boros’s cus-
tomers; however, this disconnect also confers less proba-
tive value on Dr. Barkin’s testimony.
8
(...continued)
that Boros conspired to knowingly and intentionally possess
controlled substances with the intent to distribute and to
actually have distributed them. See 21 U.S.C. § 846; see also
21 U.S.C. § 841. The final count presented to the jury
required the government to prove that Boros conspired to
transfer funds out of the United States with the intent to
promote unlawful activity. See 18 U.S.C. § 1956(h); see also
18 U.S.C. § 1956(a)-(c).
No. 10-2566 19
While Dr. Barkin kept his testimony relatively
brief and though his tone was academic rather than
emotional, parts of the content could be described as
disturbing. Dr. Barkin discussed side effects such as
seizures, strokes, psychotic episodes, and birth defects.
Dr. Barkin’s disclaimer that he did not know any of
PMeds’s clients or their side effects does not mitigate
his discussion of the negative consequences that could
stem from the use of the drugs.
Evidence bearing minimal probative value is admis-
sible only if it bears a remote risk of prejudice. See
Vargas, 552 F.3d at 557. Dr. Barkin’s testimony about
the drugs’ side effects and birth defects had a meaningful
potential for unfair prejudice, which substantially out-
weighed the limited probative value of the background
evidence. We therefore conclude that the district court
abused its discretion in admitting these parts of the
testimony.
C. Harmless Error Analysis
Even though we conclude that the district court errone-
ously admitted Dr. Barkin’s complete testimony, we will
“reverse and order a new trial only if any evidentiary
errors are not harmless.” United States v. Boone, 628 F.3d
927, 932 (7th Cir. 2010); see also F ED. R. C RIM. P. 52(a) (“Any
error, defect, irregularity, or variance that does not
affect substantial rights must be disregarded.”). In deter-
mining whether the error is harmless, “we consider
whether, in the mind of the average juror, the prosecution’s
20 No. 10-2566
case would have been significantly less persuasive had
the improper evidence been excluded.” United States v.
Thornton, 642 F.3d 599, 605 (7th Cir. 2011); see also United
States v. Johnson, 624 F.3d 815, 819 (7th Cir. 2010). To
determine whether an error is harmless, we consider
the entirety of the evidence that the government pre-
sented. See McKibbins, 656 F.3d at 713. Evidence errone-
ously admitted under Rule 403 warrants reversal only if
its exclusion would have made the jury more likely to
acquit the defendant. See Tanner, 628 F.3d at 902-03. Given
the evidence presented in support of his convictions,
Boros has not established that the government’s
case would have been significantly less persuasive to
the jury had Dr. Barkin’s improper testimony been ex-
cluded.
The government established Boros’s guilt through
various pieces of documentary evidence and insider
testimony. The letter of intent identified Boros’s role in
PMeds. Boros advertised that PMeds would supply
prescription drugs without prescriptions. Boros sent
emails describing the drug supply, suggesting a
supplier, and providing a “usage report” of 235 products,
including controlled substances, by quantity. Moreover,
Boros said nothing to express his surprise or disclaim
his participation when the Calows referenced their
illegal actions over email. Boros responded to an email
chain about website traffic by stating that he was “ready
to do a mailing anytime you want.” He expressed no
shock or disapproval when Gary admitted to instructing
a “young kid” on how to order an injectable anabolic
No. 10-2566 21
steroid. When Larry boasted that PMeds was “doing
great [with] the illegal drugs” and that he also wanted
to have “one legal Pharmacy,” Boros again did not
express concern but instead replied that they should
“get together” to “make a plan.”
Burdick’s testimony also supports Boros’s conviction.
Based on her employment at PMeds, which overlapped
with Boros’s involvement, she explained how PMeds
operated and identified the roles of the founders.
Despite Boros’s claim that Burdick’s testimony is uncor-
roborated, the search of the Tinley Park office, the
evidence related to the controlled buys, the letter
of intent, and the email exchanges all support her testi-
mony.
The testimony from Morrow and Special Agent Desmond
also support the jury’s verdict. Morrow testified about
the general nature of the PMeds scheme as designed to
import and distribute anabolic steroids and controlled
substances. His testimony was corroborated by other
evidence, including the email exchanges and his own
arrest in 2005 at the border. Special Agent Desmond
testified about the financial operations, including
how PMeds wired money to suppliers in Belize and to
people affiliated with PMeds in Mexico. By Boros’s
own admission, he received approximately $47,000 for
his participation in PMeds.
The only argument that Boros advances on appeal to
refute the government’s case is the testimony from
a credit card processing employee, who stated that Boros
had told him to “cut them off” after Boros allegedly
22 No. 10-2566
discovered PMeds’s illegality. This scant testimony does
not counter the amount of evidence introduced by the
government that establishes Boros’s guilt.9
Dr. Barkin’s testimony had minimal relevance, minimal
probative value, and overtones of prejudice. If the evi-
dence as to Boros’s guilt had been less compelling, the
government’s use of the testimony relating to the conse-
quences of drug use might have impacted the outcome
9
Furthermore, we are not persuaded by Boros’s argument
that the prosecutor’s closing remarks constitute an error that
requires vacating the conviction. Boros relies on Arrieta-Agressot
v. United States, 3 F.3d 525, 527 (1st Cir. 1993), in which the
prosecutor repeatedly urged the jury to view the case “as a
battle in the war against drugs, and the defendants as enemy
soldiers.” Id. The First Circuit held that the remarks con-
stituted prosecutorial misconduct and vacated the convic-
tions, noting that the government’s evidence was “not over-
whelming” and that “the threat was that the prosecutor’s
remarks would excite the jury, invite a partisan response, and
distract its attention” from deciding whether the evidence
established the defendants’ guilt. Id. at 529-30. Here, in
contrast, not only did the government present substantial
evidence of Boros’s guilt, but the prosecutor’s remarks were
also not as inflammatory or political as in Arrieta-Agressot. The
prosecutor’s closing did not label Boros as the cause of societal
problems or call on the jury to save society from the evil of
drugs. See Arrieta-Agressot, 3 F.3d at 527. The First Circuit
addressed a different legal framework and different set of
facts. Although we do not condone the government’s ap-
proach, the closing remarks do not require vacating Boros’s
convictions.
No. 10-2566 23
of this case. However, in light of the evidence in sup-
port of Boros’s guilt, excluding Dr. Barkin’s testimony
would not have led an “average juror” to find that the
evidence was “significantly less persuasive.” Cooper,
591 F.3d at 590. Thus, though we conclude that the
district court should have excluded parts of Dr. Barkin’s
testimony, we determine that the evidentiary error
was harmless.
III. Conclusion
For the foregoing reasons, we A FFIRM the judgment of
the district court.
2-9-12