Case: 22-20515 Document: 00516997131 Page: 1 Date Filed: 12/11/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
____________ FILED
December 11, 2023
No. 22-20515 Lyle W. Cayce
____________ Clerk
United States of America,
Plaintiff—Appellee,
versus
James Darian Pierre,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:17-CR-414-1
______________________________
Before Jones, Stewart, and Duncan, Circuit Judges.
Stuart Kyle Duncan, Circuit Judge:
A jury convicted James Pierre of multiple federal drug crimes for his
work as the sole doctor at a Houston pill mill. See, e.g., United States v. Evans,
892 F.3d 692, 696 (5th Cir. 2018) (defining a “pill mill” as “an operation that
prescribes drugs with no legitimate medical purpose”). On appeal, Pierre
presses two arguments that he failed to preserve at trial: namely, that the
district court committed error in admitting improper profiling evidence and
in instructing the jury. Finding no reversible error, we AFFIRM.
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No. 22-20515
I.
Houston’s West Parker Medical Clinic was an illegal pill mill posing
as a pain management clinic. Pierre was West Parker’s only physician. In
2020, he was indicted by a grand jury for various federal drug crimes. 1 Several
of Pierre’s co-conspirators—including West Parker’s owner, Rhonda
Walker—cut plea deals. Pierre maintained his innocence and went to trial.
Walker testified at trial that West Parker was a “pill mill.” She and
others described its operations. The clinic took no appointments and capped
patients at 45 per day. Patients would congregate outside the clinic as early
as 2 a.m. before it opened at 7 a.m. Once inside, patients were required to
turn off their cell phones (to prevent their recording what went on) and were
forbidden from exchanging cash in the lobby. They had to fill out their own
intake forms, indicating the drugs they wanted, and they paid before seeing
Pierre or his physician’s assistant. Pierre insisted that Walker enforce these
rules.
West Parker accepted neither insurance nor credit cards. Cash only.
A hydrocodone prescription went for $220; oxycodone, $500. Both came
with a prescription for carisoprodol, which, when mixed with hydrocodone,
makes a “Las Vegas cocktail.” Walker pre-filled prescription forms,
including the patient’s diagnosis. This was easy to do because most patients
received the same prescription for the same ailment: back pain from a car
accident. After a cursory examination by Pierre, patients were sent on their
way with prescriptions in hand.
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1
Pierre was charged with seven counts of unlawfully distributing and dispensing
controlled substances and one count of conspiring to do the same. See 21 U.S.C.
§ 841(a)(1), (b)(1)(C); 21 U.S.C. § 846.
2
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Patients were often recruited and brought in by “runners,” who
would resell the drugs on the street. For instance, one runner’s wife,
Charlotte Yarborough, testified that her husband regularly drove her and
others to West Parker from three hours away in Palestine, Texas. He gave
recruits cash to pay West Parker, paid them $100 for their prescriptions, and
then resold the drugs. Pierre and his staff often discussed these runners.
Pierre would direct Walker to have runners leave the waiting room and “go
back to . . . their car,” or “leave the patient . . . and come back and get them.”
Sometimes, things got out of hand. A post-it note on one file reported:
“Patient was brought in by [a] Runner who broke windows on [sic] clinic.”
Pierre performed well. Walker described him as a “beast” of a
prescriber to Henry Reece, a headhunter who initially connected Walker and
Pierre. (Unbeknownst to Walker, Reece was recording their conversation.)
Later, Pierre asked Reece how much hydrocodone and oxycodone sold for on
the streets. When Reece told him, Pierre mused “he may not be charging
enough.” Nonetheless, Pierre was well compensated. Walker paid him
between $6,500 and $8,000 per week, all in cash. All told, in his thirteen
months at West Parker, Pierre issued 9,115 hydrocodone prescriptions
(totaling 1,068,783 pills) and 6,633 carisoprodol prescriptions (totaling
595,410 pills).
Pierre did not meaningfully challenge this extensive evidence. Rather,
his defense was that Walker and other clinic employees “deceive[d]” him.
He claimed he had only “provid[ed] medicine for people that he believed
were in pain,” but the patients had “lie[d] to [Pierre] [to] get these particular
pills and put them on the street.” The jury did not believe him. Pierre was
convicted on all counts and later sentenced to 150 months in prison, followed
by three years of supervised release. He was also ordered to forfeit his BMW.
3
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II.
Pierre raises two issues on appeal. First, he claims the district court
erred by admitting “profiling” testimony. Second, he claims the jury
instructions were erroneous under United States v. Ruan, 142 S. Ct. 2370
(2022). Ordinarily, we would review evidentiary objections for abuse of
discretion and jury instruction issues involving statutory construction de
novo. See United States v. Meyer, 63 F.4th 1024, 1040 (5th Cir. 2023); United
States v. Ajayi, 64 F.4th 243, 247 (5th Cir. 2023) (per curiam). But Pierre
preserved neither argument at trial,2 so we review both questions for plain
error only. 3 See United States v. Richard, 775 F.3d 287, 295 (5th Cir. 2014);
United States v. Green, 47 F.4th 279, 294 (5th Cir. 2022); Fed. R. Crim.
P. 52(b). Pierre must therefore show not merely error, but “clear or obvious”
error that affected his substantial rights. United States v. Vasquez, 899 F.3d
363, 373 (5th Cir. 2018). To do so, he must show that, but for the district
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2
We reject Pierre’s contention that he preserved both arguments. As to the
evidentiary claim, Pierre objected to some of the evidence but not on the basis he now
presses on appeal. See, e.g., United States v. Lewis, 796 F.3d 543, 545 (5th Cir. 2015)
(explaining “[t]o preserve error, an evidentiary objection must ‘state[] the specific ground,
unless it was apparent from the context’”). Pierre’s reply brief concedes plain error review
governs this issue. As to the jury instructions, Pierre objected only to including an aiding-
and-abetting instruction but not on the grounds he now argues. His claim that he preserved
error merely by proposing adequate instructions, without requesting they be given, is
unavailing. See United States v. Green, 47 F.4th 279, 294 (5th Cir. 2022) (proposed jury
instructions do not preserve error, absent request they be given or objection to their
exclusion at charge conference), cert. denied, 143 S. Ct. 747 (2023), and cert. denied sub nom.
Selgas v. United States, 143 S. Ct. 1058 (2023).
3
Pierre argues for de novo review of the jury instructions based on the “futile
gesture” doctrine—meaning a Ruan-type objection would have been pointless, given that
his trial occurred before Ruan. We disagree. “[F]utility is not an excuse in the plain-error
context.” United States v. Vargas-Soto, 35 F.4th 979, 996 n.5 (5th Cir. 2022) (citing Greer
v. United States, 141 S. Ct. 2090, 2099 (2021)), cert. denied, 143 S. Ct. 583 (2023)); see also
United States v. Capistrano, 74 F.4th 756, 769 (5th Cir. 2023) (explaining plain error review
applies where defendant did not object to instructions pre-Ruan).
4
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court’s error, “there is a ‘reasonable probability’ that he would have been
acquitted.” Greer v. United States, 141 S. Ct. 2090, 2097 (2021). Even then,
we will exercise our discretion to correct such an error only if it “seriously
affected the fairness, integrity, or public reputation of judicial proceedings.”
United States v. Huntsberry, 956 F.3d 270, 283 (5th Cir. 2020) (citation
omitted).
A.
Pierre argues that the voluminous trial testimony concerning West
Parker’s illicit operations should have been excluded as impermissible
“profiling” testimony. We disagree.
Pierre tries to leverage our cases teaching that a defendant may not be
convicted merely because he fits a “drug courier profile.” See, e.g., United
States v. Ramos-Rodriguez, 809 F.3d 817, 825 (5th Cir. 2016) (per curiam)
(citation omitted). In such cases, “law enforcement personnel seek to testify
that because a defendant’s conduct matches the profile of a drug courier, the
defendant must have known about the drugs he was transporting.” United
States v. Gonzalez-Rodriguez, 621 F.3d 354, 363 (5th Cir. 2010). A “classic”
example is using testimony that “drug couriers generally have no criminal
history” to prove that a defendant “knew he was carrying drugs because he
had no criminal history.” Id. at 366 (emphasis added). Such evidence is
inadmissible because it is overinclusive and unfairly prejudicial. Id. at 364; see
also Ramos-Rodriguez, 809 F.3d at 825 (explaining “drug courier profile
evidence is inadmissible to prove substantive guilt based on similarities
between defendants and a profile”) (citation omitted).
The problem for Pierre, though, is that the testimony about West
Parker’s operations was not profiling evidence. To the contrary, law-
enforcement witnesses explained how pill mills operate because, otherwise,
5
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the jury would have had trouble understanding the evidence. 4 Such
testimony about the mechanics of drug trafficking is admissible. See United
States v. Staggers, 961 F.3d 745, 761 (5th Cir. 2020) (explaining “agents
testifying as lay witnesses ‘may testify about the significance of particular
conduct or methods of operation unique to the drug business’”) (quoting
United States v. Espino-Rangel, 500 F.3d 398, 400 (5th Cir. 2007)). 5 Nor does
Pierre point to any testimony where a witness opined about Pierre’s mental
state based merely on evidence of how pill mills generally operate—a
hallmark of profiling testimony. Cf. United States v. Morin, 627 F.3d 985, 995
(5th Cir. 2010) (explaining that an officer may not “offer[] a direct opinion
as to the defendant’s mental state or . . . give[] the ‘functional equivalent’ of
such a statement”) (citation omitted). Indeed, there was ample direct
evidence from which a jury could have inferred Pierre’s guilty knowledge.
For example, Walker testified that Pierre knew of the presence of runners at
West Parker and insisted she enforce rules aimed at concealing West Parker’s
illegal operations.
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4
Specifically, Officer Nathaniel Taylor, who had conducted an undercover
operation at West Parker, explained the significance of West Parker’s various rules.
Diversion Investigator Stella Butler discussed red flags characteristic of pill mills. Task
Force Officer Ruben Espinoza explained the significance of pre-filled prescription forms.
And Diversion Officer Michael Mills explained summary exhibits he prepared about West
Parker’s prescriptions, which showed the high percentage of West Parker patients who
complained of back pain from a car accident. Though not law enforcement officers, Pierre
also argues that similar testimony from Walker, West Parker’s former security guard, and
the government’s medical expert was profiling testimony.
5
See also United States v. Garcia, 86 F.3d 394, 399–400 (5th Cir. 1996) (explaining
that “[t]he average juror may not be aware that . . . large drug trafficking organizations
commonly use ‘car swaps,’ ‘stash houses’ and conduct ‘heat runs’”); United States v.
Speer, 30 F.3d 605, 610 (5th Cir. 1994) (approving an officer’s “analysis of the evidence in
the light of his special knowledge as an expert in the area of narcotics trafficking”).
6
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A deeper problem for Pierre is that we are on plain error review. He
identifies no drug profiling case in the context of pill mills. Most profiling
cases concern drug couriers and ask whether the government proved the
defendant knew he was carrying narcotics. See, e.g., Gonzalez-Rodriguez, 621
F.3d at 364. Pierre’s situation is different. The issue is not whether Pierre
knew he was prescribing controlled substances—he did—but whether he
knowingly did so without a legitimate medical purpose. See 21 U.S.C.
§ 841(a); 21 C.F.R. § 1306.04. In effect, Pierre would have us declare it
“obvious” error not to transplant our profiling cases into a realm where they
fit awkwardly, if at all. That argument fails. See United States v. Trejo, 610
F.3d 308, 319 (5th Cir. 2010) (“An error is not plain under current law if a
defendant’s theory requires the extension of precedent.”) (cleaned up). 6
In sum, Pierre fails to show that the district court committed error,
plain or otherwise, by not excluding testimony about West Parker’s
operations as profiling evidence.
B.
Pierre next argues that the jury instructions were erroneous under the
Supreme Court’s decision in Ruan, 142 S. Ct. 2370. We agree with the
government that any error in the instructions did not affect Pierre’s
substantial rights.
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6
True, we have applied our profiling precedents to cases where a defendant is
charged with transporting illegal aliens and claims ignorance of his passengers’ immigration
status. See United States v. Hernandez-Acuna, 202 F. App’x 736, 741 (5th Cir. 2006) (per
curiam). But those cases are close analogues to the drug courier cases because they probe
whether a defendant knows he is transporting something (or someone) illegal. See United
States v. Montes-Salas, 669 F.3d 240, 250–51 (5th Cir. 2012) (explaining our profiling
caselaw did not apply on plain error review to a scenario where a defendant’s “knowledge
of the aliens’ immigration status” was not at issue).
7
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Pierre was convicted under 21 U.S.C. § 841, which, as relevant here,
makes it a crime to “knowingly or intentionally” dispense controlled
substances “[e]xcept as authorized.” Pierre was also convicted for
conspiring to violate § 841 under 21 U.S.C. § 846. Ruan held that § 841’s
mens rea (“knowingly or intentionally”) applies to the “except as
authorized” clause. 142 S. Ct. at 2382. Accordingly, the government must
prove the defendant “knowingly or intentionally acted in an unauthorized
manner.” Ibid.; see also Ajayi, 64 F.4th at 247 (explaining that, under § 841,
“the defendant must subjectively understand the illegitimate nature of the
distribution [he] facilitate[s]” and that “[f]illing an objectively illegitimate
prescription is not a sufficient condition to convict”) (citing Ruan, 142 S. Ct.
at 2381).
The jury was instructed that, to convict Pierre on the substantive
§ 841 counts, it had to find “[1] that Pierre distributed or dispensed a
controlled substance; [2] that he did so knowingly and intentionally; and
[3] that he did so other than for a legitimate medical purpose or did so outside
the usual course of professional practice.” 7 Pierre argues these instructions
fail under Ruan because they did not ask the jury to find he subjectively
understood the prescriptions were unauthorized. See Ajayi, 64 F.4th at 247.
The government agrees with Pierre on this point. Nonetheless, it
argues that the jury instructions were adequate as a whole because the § 846
conspiracy instructions required the jury to find that Pierre acted with the
mens rea required by Ruan. For support, the government points to our recent
Ajayi decision, where we concluded that adequate § 846 conspiracy
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7
The latter phrase comes from an accompanying regulation, which provides that
prescriptions are “authorized” when a doctor “acting in the usual course of his
professional practice” issues them “for a legitimate medical purpose.” 21 C.F.R.
§ 1306.04(a); see also Ruan, 142 S. Ct. at 2382.
8
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instructions “filled any gap [in the § 841 instructions] by clearly requiring
that the jury find that Ajayi ha[d] understood the illegitimate nature of his
conduct.” Ajayi, 64 F.4th at 248. In response, Pierre contends that Ajayi is
inapposite because the defendant there conceded the adequacy of the
conspiracy instructions, whereas Pierre challenges them. Ibid.
We need not decide whether Pierre has shown clear and obvious error
in the jury instructions, however, because he has not shown that any such
error affected his substantial rights. See, e.g., United States v. Dixon, 273 F.3d
636, 640 (5th Cir. 2001). This is because there was “overwhelming
evidence” that Pierre understood the illegitimacy of his actions. Ibid; see also
United States v. Little, No. 21-11225, 2023 WL 7294199, at *14–*15 (5th Cir.
Nov. 3, 2023) (finding Ruan-error did not affect defendant’s substantial
rights); United States v. Heaton, 59 F.4th 1226, 1242 (11th Cir. 2023) (finding
Ruan-error harmless).
There was no question that West Parker was a pill mill. Moreover, the
evidence showed that, before Walker hired Pierre, she explained its
operations to him in detail and conveyed her expectations as to the quantity
of drugs he was to prescribe. And once Pierre began working at West Parker,
he exceeded those expectations, earning Walker’s praise as a “beast” of a
prescriber. Furthermore, the examinations Pierre conducted on patients
were cursory and he also used the prescription forms that Walker pre-filled.
Pierre’s examinations of Yarborough and a patient called “J.C.” were
characteristically superficial. On Yarborough’s numerous trips to West
Parker, she would indicate which drugs she sought and pay for them before
seeing Pierre. Pierre’s “examinations” consisted merely of seeing how far
she could bend over, after which he would send her on her way with the
prescriptions she wanted. Furthermore, Pierre ignored the clear signs of
drug-seeking behavior Yarborough exhibited. For instance, Yarborough’s
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intake forms plainly stated that she lived three hours away in Palestine,
Texas. But Pierre never asked her why she didn’t see a doctor closer to home.
J.C.’s patient profile contained similar red flags. He had received
hydrocodone and carisoprodol prescriptions from thirteen different
providers before coming to West Parker. And he received another opioid
prescription from a fourteenth doctor in between visits to West Parker, which
violated his pain management agreement with West Parker. Yet Pierre never
sought J.C.’s medical records from these prior providers, nor did he require
J.C. to take a urine test before prescribing him more hydrocodone and
carisoprodol.
Beyond Pierre’s interactions with particular patients, trial testimony
established that Pierre was intimately involved in West Parker’s illicit
operations. Pierre knew that runners brought patients to the clinic. He even
recognized specific runners who came every day. Pierre would direct Walker
to have the runners leave the clinic during their patients’ appointments and
await West Parker’s call to return for them. Sometimes Pierre instructed the
runners himself. Pierre also required West Parker staff to enforce the clinic’s
other rules aimed at concealing its illegitimacy—such as the requirements
that cell phones be turned off and that patients refrain from passing cash in
the lobby. And his question to Reece about the black market value of
hydrocodone and oxycodone suggested he knew that the drugs he prescribed
were destined for resale on the street.
Moreover, as the government notes, the parties presented the case to
the jury as turning on Pierre’s subjective knowledge of the illegitimacy of his
prescriptions. The government argued Pierre “knew that the Norco
prescriptions were issued with no legitimate medical purpose and outside of
the usual course of medical practice.” And Pierre’s defense was not that his
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prescriptions were in fact medically legitimate, but that his patients and West
Parker staff alike had tricked him into issuing them.
In sum, the jury was presented with “overwhelming evidence” that
Pierre knew the prescriptions he was writing were medically unauthorized.
See Ruan, 142 S. Ct. at 2382; Dixon, 273 F.3d at 640. Likewise, the evidence
plainly demonstrated that Pierre agreed to write those unauthorized
prescriptions to advance West Parker’s unlawful purpose. Dixon, 273 F.3d at
640; Ruan, 142 S. Ct. at 2382. So, Pierre cannot show that any error in the
jury instructions as to the requisite mens rea affected his substantial rights.
See Little, 2023 WL 7294199 at *14–*15; Heaton, 59 F.4th at 1242. 8
III.
For the foregoing reasons, the judgment is AFFIRMED.
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8
Pierre also contends it was error to ask the jury whether he agreed to unlawfully
dispense drugs “outside the scope of professional practice or without a legitimate medical
purpose.” Pierre claims the “or” should have been “and.” We disagree. The relevant
regulation requires a prescription to have been “issued for a legitimate medical purpose by
an individual practitioner acting in the usual course of his professional practice.” 21 C.F.R.
§ 1306.04(a). So, the “or” correctly conveyed what the regulation provides: a prescription
can be invalid because it was not issued for a legitimate purpose or because the doctor was
acting outside his usual practice.
11