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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-14979
Non-Argument Calendar
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D.C. Docket No. 1:10-cr-20171-JLK-3
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TERRI L. DECUBAS,
FEDERICO M. FERMIN,
Defendants - Appellants.
________________________
Appeals from the United States District Court
for the Southern District of Florida
________________________
(February 8, 2013)
Before WILSON, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
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The Appellants, Terri L. Decubas and Federico M. Fermin, challenge the
sufficiency of the evidence supporting their convictions for conspiracy to distribute
prescription drugs wholesale without a license, in violation of 18 U.S.C. § 371 and
21 U.S.C. §§ 331(t), 333(b)(1)(D), and 353(e)(2)(A). In addition, Fermin argues
that his sentence for conspiracy violated Apprendi v. New Jersey, 530 U.S. 466,
120 S. Ct. 2348 (2000), because the court failed to include “knowingly” in the jury
instructions for the substantive offense. Finally, Decubas argues that her
conspiracy conviction should have been treated as a misdemeanor.
We conclude, first, that the prosecution’s evidence was sufficient to support
both appellants’ convictions; second, that the district court’s failure to include
“knowingly” in the substantive offense’s jury instructions was not plain error; and
finally, that the district court did not err by treating Decubas’s conviction as a
felony. The convictions are affirmed.
I. FACTUAL BACKGROUND
In April 2002, Florida drug agents raided the warehouses of Jemco Medical
International, Inc. (Jemco), a Broward County business licensed by the state of
Florida to distribute prescription drugs wholesale. Jose Castillo, who was charged
alongside Decubas and Fermin, was Jemco’s owner and operator. Decubas and
Fermin worked in managerial positions under Castillo. Inside one of Jemco’s
warehouses, agents found three offices—two with computers, and one with boxes
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of pharmaceuticals, lighter fluid, sponges,1 outserts,2 and handwritten lists of
pharmaceuticals. In an adjoining, non-air-conditioned 3 space, agents found
hundreds of bottles of medicine valued at approximately $3.5 million.4 Several
bottles were marked with a handwritten “M,” which indicated that Florida’s
Medicaid program had paid for the drugs. Jemco did not have a license to store
prescription drugs in that specific warehouse, and Castillo could not provide the
agents with any paperwork showing the drugs’ purchase. Jemco subsequently lost
its license to distribute wholesale prescription drugs, and closed its doors. Fermin
and Decubas were aware that Jemco had been raided by drug agents.
Within a few weeks, Castillo opened Kirby Health Care Distributors
(Kirby), and Meridian Health Care Distributors (Meridian) at an office in Weston,
Florida. Decubas was the nominal owner of Meridian, but both she and Fermin
apparently worked under Castillo’s supervision. Despite being the undisputed
boss, Castillo made sure that his now-tainted name did not appear on the corporate
records of either Kirby or Meridian. Gloria Gutierrez, a former Jemco receptionist
1
Lighter fluid and sponges are often used to remove the sticky residue left behind from a
pharmacy’s dispensing label on a container of medicine.
2
An “outsert” is multi-folded instruction sheet attached to the outside of a medicine
bottle.
3
Florida statutes require licensed wholesalers to store their drugs in an air-conditioned
space.
4
Some of the drugs discovered by agents in the adjoining warehouse included Zyprexa
(treatment for schizophrenia and bipolar disorder), HIV antiretrovirals (drugs that restrain the
growth of the HIV virus), Albuterol (treatment for asthma), and Ipratropium (treatment for
asthma).
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who followed Castillo to the Kirby/Meridian office, testified that Fermin and
Decubas made it explicitly clear to the entire workforce that Castillo was not
supposed to be in the Weston office, and that under no circumstance was his
involvement in the office to be disclosed.
Kirby and Meridian were in the business of soliciting orders for medicine
from pharmacies. When Kirby or Meridian made a sale, the order would be
transmitted to Pharmacy Distributors Group (PDG), a Castillo-run company in
Boerne, Texas. PDG, a licensed pharmacy distributor, fulfilled the Kirby/Meridian
sales by shipping the drugs from Boerne to the pharmacies. PDG’s inventory of
drugs arrived with an invoice either inside the box, or faxed from Meridian/Kirby.
The invoices often indicated that the drugs had been purchased from Island
Pharmaceuticals, a sham Puerto Rican distributor. The boxes of drugs arrived with
a return address for Swift Freight Services (Swift Freight), a purportedly
Tennessean company incorporated by Jesus Romero, a south Floridian who is
married to Castillo’s niece. Fermin and Decubas had offered Romero a monthly
payment of $300 for the use of his name on Swift Freight’s books. After Romero
agreed, Fermin opened a Pak Mailbox for Swift Freight in Tennessee, using a
Florida address to do so. Both Fermin and Decubas wrote checks to Romero for
the use of his name, with the money coming from Castillo.
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The net effect of Castillo’s new scheme was that drugs shipped from south
Florida to Texas appeared to have come from Tennessee. PDG then shipped the
drugs to pharmacies nationwide, which in turn made payments to PDG. PDG
distributed $13 million in pharmacy payments to ten sham companies by check, all
of which were cashed at two check-cashing stores in Miami. Fermin and Decubas
signed several of PDG’s checks to the sham companies. In other words, it was
business as usual for Castillo, albeit with a decidedly more byzantine paper trail.
In September 2004, the Food and Drug Administration (FDA) subpoenaed
PDG’s records to ascertain its suppliers and customers. PDG provided the FDA
with a list of suppliers and copies of invoices. The “supplier” owners unanimously
testified that they had never sold drugs to PDG, and that the invoices were fake.
During a raid at the Kirby/Meridian office, FDA agents found copies of the fake
invoices on Fermin’s computer. And, in keeping with Jemco’s protocol, the
Kirby/Meridian office was well-stocked with “M”-marked bottles, bottles with
lighter-fluid residue, and bottles with faded lot numbers.
During the FDA’s raid of the Kirby/Meridian office, Decubas stated that
there were no drugs at the office whatsoever, only medical and surgical supplies.
She stated that Kirby/Meridian was not involved in the pharmaceutical business.
Decubas also told an FDA agent that she was not sure how documents relating to
pharmaceutical sales and invoices had gotten into her office.
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II. PROCEDURAL BACKGROUND
Fermin and Decubas were charged with multiple counts, among them
conspiracy to distribute prescription drugs wholesale without a license, in violation
of 18 U.S.C. § 371 and 21 U.S.C. §§333(b)(1)(D), 353(e)(2)(A), and 331(t) (Count
V); and the unlicensed wholesale distribution of prescription drugs, in violation of
21 U.S.C. § 333(b)(1)(D), 353(e)(2)(A), 331(t), and 18 U.S.C. § 2 (Counts VI–
VIII). The jury found Fermin and Decubas guilty of conspiracy to distribute drugs
without a license. With regard to Counts VI–VIII, Decubas was found not guilty,
and the jury failed to reach a verdict for Fermin. Both parties moved for an
acquittal of their conspiracy convictions, which the district court denied. This
appeal followed.
III. ANALYSIS
A. Sufficiency of the Evidence
We review de novo the district court’s denial of a motion for acquittal based
on sufficiency of the evidence, “viewing the evidence in the light most favorable to
the government and drawing all reasonable inferences in favor of the verdict.”
United States v. Schier, 438 F.3d 1104, 1107 (11th Cir. 2006). The jury’s verdict
“must be sustained if there is substantial evidence to support it.”5 United States v.
5
Some commentators have pointed out a possible inconsistency in our circuit’s
conspiracy jurisprudence regarding sufficiency challenges. See Julia N. Sarnoff, Federal
Criminal Conspiracy, 48 Am. Crim. L. Rev. 663, 672–73 (2011). The inconsistency is this: after
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Siegelman, 640 F.3d 1159, 1164–65 (11th Cir. 2011) (per curiam) (emphasis
added) (citing Glasser v. United States, 315 U.S. 60, 80, 62 S. Ct. 457, 469
(1942)), cert. denied, 132 S. Ct. 2712 (2012). Put another way, we will only
reverse a verdict if the record demonstrates a lack of evidence from which a jury
could find guilt beyond a reasonable doubt. See United States v. Garcia, 405 F.3d
1260, 1269 (11th Cir. 2005) (per curiam). The Supreme Court has warned the
circuit courts that “appellate reversal on grounds of insufficient evidence . . . will
be confined to cases where the prosecution’s failure is clear.” Burks v. United
States, 437 U.S. 1, 17, 98 S. Ct. 2141, 2150 (1978).
To prove that Fermin and Decubas participated in a conspiracy, the
prosecution needed to prove beyond a reasonable doubt, “even if only by
circumstantial evidence, that a conspiracy existed” and that Fermin and Decubas
“knowingly and voluntarily joined the conspiracy.” Garcia, 405 F.3d at 1269.
the government proves the existence of a conspiracy beyond a reasonable doubt, must the
government prove that the defendant’s connection to the conspiracy was “slight” or
“substantial”? Compare United States v. Baker, 432 F.3d 1189, n.49 (11th Cir. 2005) (noting
that this circuit occasionally applies an erroneous “slight evidence” standard instead of a
“substantial evidence” standard), with Garcia, 405 F.3d at 1270 (“Once the existence of a
conspiracy is established, only slight evidence is necessary to connect a particular defendant to
the conspiracy.” (internal quotation marks omitted)). We need not resolve this issue today,
because we conclude that there is at least substantial evidence connecting Fermin and Decubas to
the conspiracy.
As an aside, it is probably a distinction without a difference. Regardless of whether the
connection is “slight” or “substantial,” the evidence will be sufficient so long as the trier of fact
could—among competing alternative conclusions—find guilt beyond a reasonable doubt. See
Baker, 432 F.3d at 1231–32; Garcia, 405 F.3d at 1269 (“We must affirm the appellants’
convictions unless, under no reasonable construction of the evidence, could the jury have found
the appellants guilty beyond a reasonable doubt.” (emphasis added)).
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The prosecution need not prove that a defendant “knew all of the detail or
participated in every aspect of the conspiracy.” Id. at 1270. Instead, the
prosecution must prove that the defendants “knew the essential nature of the
conspiracy.” Id. (internal quotation marks omitted).
We have consistently held that, owing to the crime’s predominantly mental
composition, a defendant’s conscious participation in the scheme may be proven
by circumstantial evidence. See id. (citing United States v. Pineiro, 389 F.3d 1359,
1369 (11th Cir. 2004)). And while not controlling, “presence and association are
material and probative factors that a jury may consider in reaching its verdict.”
United States v. Lluesma, 45 F.3d 408, 410 (11th Cir. 1995).
The essential nature of this conspiracy was for Fermin and Decubas “to
unlawfully enrich themselves by distributing prescription drugs wholesale from the
State of Florida to places outside the State of Florida, without being licensed by the
State of Florida.” Thus, the central question of this appeal is whether the
prosecution’s circumstantial evidence was so deficient that a jury could not have
inferred that Fermin and Decubas knew that Castillo employed them to distribute
prescription drugs from Florida without a license.
We begin with the circumstantial evidence that was mutual to Fermin and
Decubas: (1) both Fermin and Decubas were aware the Florida drug agents had
raided Jemco; (2) both continued to work for Castillo at Kirby/Meridian shortly
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after Jemco’s closing; (3) both told Kirby/Meridian employees not to disclose
Castillo’s involvement in Kirby/Meridian; and finally, (4) both paid Romero to
incorporate Swift Freight in Tennessee, which allowed Castillo to ship prescription
drugs to Texas from Florida with a Tennessee return address. Evidence at trial also
showed that Fermin had fake invoices on his Kirby/Meridian computer, that
Decubas told FDA agents that Kirby/Meridian only sold medical and surgical
supplies, and that Decubas acted bewildered by the pharmaceutical sales and
invoices in her office.
In order to have knowledge of the conspiracy’s essential nature, Fermin and
Decubas had to know that Castillo was shipping prescription drugs out of Florida
without a license. Based upon the foregoing evidence, we conclude that a jury
could infer such knowledge beyond a reasonable doubt. The jury could reasonably
infer that Fermin and Decubas knew that Castillo’s license had been revoked
following the Jemco raid. This inference is bolstered by the fact that Fermin and
Decubas actively concealed Castillo’s involvement at Kirby/Meridian. Finally, the
jury could infer from Swift Freight’s incorporation, the fake invoices on Fermin’s
computer, and Decubas’s unconvincing explanation of the pharmaceutical
documents in her office that Fermin and Decubas were aware that Castillo was
shipping prescription drugs from Florida. Put succinctly, the jury could reasonably
conclude that Fermin and Decubas knowingly participated in acts—such as paying
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off Romero to incorporate Swift Freight—that would further the conspiracy’s
purpose, i.e., to sell without a license prescription drugs. We find readily
distinguishable the cases cited by Fermin and Decubas, beginning with Ingram v.
United States, 360 U.S. 672, 79 S. Ct. 1314 (1959).
In Ingram, the Supreme Court found the prosecution’s evidence for
conspiracy to evade taxes insufficient with regard to two lottery employees who
allegedly helped to keep the lottery secret from authorities. Id. at 680, 79 S. Ct. at
1320. The employees themselves had not conspired to evade taxes; instead, it was
the owners of the lottery who had done so. The employees’ actions were almost
certainly explained by the fact that the lottery was illegal under state law, and
evidence that they “might have wanted the taxes to be evaded if they had known of
them, and that they engaged in conduct which could have been in furtherance of a
plan to evade the taxes if they had known of them, [was] not evidence that they did
know of them.” Id. Ingram stands for the proposition that “charges of conspiracy
are not to be made out by piling inference upon inference.” Id. (internal quotation
marks omitted). In this case, unlike Ingram, the jury did not have to make
enormous inferential steps, but instead inferential tiptoes. Fermin and Decubas
were associated with Castillo for years, during Jemco’s raid, after Jemco shuttered,
and throughout their stints at Kirby/Meridian, all the while telling Kirby/Meridian
employees to keep Castillo’s involvement in the dark.
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Fermin’s citation to United States v. Kelly, 749 F.2d 1541 (11th Cir. 1985),
is similarly unconvincing. In Kelly, we found that insufficient evidence supported
the defendant’s conviction for drug smuggling. Id. at 1548. In that case, we held
that the defendant’s inspection of a drug-smuggling boat’s seaworthiness, along
with his presence at a meeting of co-conspirators, was insufficient to demonstrate
knowledge. Id. It was unreasonable for the jury to infer that the defendant knew
the boat would be used for drug smuggling merely by his inspection of the boat
and his acquaintance with the co-conspirators. Id. at 1548–49. Were it the case
now that the prosecution had presented only “facially innocent act[s]” by Fermin
and Decubas, we would be inclined to agree with Fermin. United States v. Perez-
Tosta, 36 F.3d 1552, 1558 (11th Cir. 1994). However, Fermin had fake invoices
on his computer, and Decubas misrepresented the truth to FDA agents, neither of
which in our view is a “facially innocent act” like a boat inspection. Id.
Finally, Decubas points to our decision in United States v. Lluesma, 45 F.3d
408 (11th Cir. 1995). In Lluesma, Cruz and Lluesma challenged the sufficiency of
the evidence supporting their convictions for conspiracy to export stolen
construction vehicles. Id. at 409. We rejected Lluesma’s sufficiency challenge
because the government’s circumstantial evidence—such as a co-conspirator’s
testimony about Lluesma’s state of mind—sufficiently supported the jury’s
determination that Lluesma knew that the vehicles were destined for export. Id. at
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410. Lluesma had also been observed riding around the area in a stolen car with a
“piece of bumper sticker cover[ing] a punched out rear door lock.” Id. at 409.
Contrarily, we reversed Cruz’s conviction because the prosecution’s circumstantial
evidence demonstrated that Cruz, an unemployed person, merely performed the
occasional odd job for the co-conspirators. Id. at 411. Cruz’s “odd jobs” included
removing the roof of a soon-to-be-exported John Deere tractor and placing a
container onto a trailer. Id.
We find it obvious that Fermin’s and Decubas’s roles in the conspiracy are
patently unlike Cruz’s in Lluesma. Fermin and Decubas had been Castillo’s
managers for years, soliciting sales for PDG and engineering a sham Tennessee
corporation to mask the drugs’ true origin. They certainly did more than the
occasional odd job. Fermin and Decubas are right to suggest that presence alone
may not establish knowledge unless “it would be unreasonable for anyone other
than a knowledgeable participant to be present.” Id. at 410. But Fermin and
Decubas were not “merely” present at Kirby/Meridian. To reiterate, fake invoices
were found on Fermin’s computer, and Decubas told the FDA agents that
Kirby/Meridian was not engaged in the pharmaceutical business. Moreover, both
conspirators concealed Castillo’s involvement. Substantial evidence, independent
of their presence, supported the jury’s conclusion that Fermin and Decubas had
knowledge of the scheme.
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Having dispensed with Fermin and Decubas’s sufficiency argument, we turn
to the remaining two issues on appeal.
B. Fermin’s Jury Instructions
Even though Fermin was convicted of conspiracy, he argues that his
conviction must be reversed because of an error in a jury instruction for a different
count: the substantive offense. Fermin argues that because the jury instructions for
the underlying offense—unlicensed wholesale distribution of drugs—did not
contain the word “knowingly,” he was prejudiced. Under Apprendi, “any fact that
increases the penalty for a crime beyond the prescribed statutory maximum must
be submitted to a jury.” 530 U.S. at 490, 120 S. Ct. at 2362–63. Because Fermin
did not object to the jury instructions at trial, the instructions are reviewed for plain
error. Montgomery v. Noga, 168 F.3d 1282, 1294 (11th Cir. 1999). The error must
have been a plainly incorrect statement of law, and it must have resulted in a
miscarriage of justice. United States v. Prather, 205 F.3d 1265, 1272 (11th Cir.
2000).
We first note that the jury instructions for Fermin’s conspiracy conviction
stated: “Count 5 charges that the Defendants knowingly and willfully conspired to
distribute prescription drugs wholesale without a license.” The jury was further
instructed that the prosecution needed to prove that Fermin and Decubas “knew the
unlawful purpose of the plan and willfully joined in it.” Although the substantive
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offense’s instructions did not contain the word “knowingly,” we can hardly say
that that omission engineered a miscarriage of justice when Fermin was convicted
of a separate crime, with instructions that adequately explained the requisite mens
rea.
C. Decubas’s Jury Instructions
Decubas argues that her conviction should be treated as a misdemeanor
because the jury instructions for the conspiracy count did not include an element of
fraudulent intent. Without this element, she argues, her sentence violates
Apprendi. See 530 U.S. at 590, 120 S. Ct. at 2362–63. Because Decubas did not
object to the jury instructions at trial, we review them for plain error. See Noga,
168 F.3d at 1294.
Decubas appears to have misconstrued the statutes forming the underlying
offenses of her conspiracy conviction. The prosecution alleged that Decubas
conspired to violate 21 U.S.C. §§ 331(t), 333(b)(1)(D), and 353(e)(2)(A). Section
331 provides an extensive list of prohibited acts; one of those acts, listed in
§ 331(t), is the wholesale distribution of drugs without a license in violation of
§ 353(e)(2)(A). Section 333(b)(1)(D) states that violators of § 353(e)(2)(A) “shall
be imprisoned for not more than 10 years or fined not more than $250,000, or
both.” The phrase “fraudulent intent” is found nowhere in the three statutes.
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Decubas cites United States v. Bradshaw, 840 F.2d 871 (11th Cir. 1988),
where the defendant had been convicted under the general penalty provisions of
§ 333(a), which make all § 331 violations misdemeanors unless they are committed
“with the intent to defraud.” 21 U.S.C. § 333(a)(2). That argument might hold
water if Decubas had been indicted for conspiring to violate § 333(a), but she was
indicted under § 333(b), which states: “Notwithstanding [§ 333(a)], any person
who violates section 331(t) of this title by . . . knowingly distributing drugs in
violation of section 353(e)(2)(A) . . . shall be imprisoned for not more than 10
years or fined not more than $250,000, or both.” § 331(b)(1)(D). The jury
instructions for Decubas’s and Fermin’s conspiracy convictions, as noted above,
more than adequately explained the mens rea required for their conspiracy
convictions.
IV. CONCLUSION
The prosecution’s evidence was more than sufficient to support the
appellants’ convictions. In addition, the jury was correctly instructed on the mens
rea necessary to convict both appellants.
AFFIRMED.
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