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FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT APRIL 12, 2012 JOHN LEY CLERK [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ Nos. 09-13944, 09-13945, 09-13975, 09-14009, 09-14012 ________________________ D. C. Docket No. 08-00118-CR-ORL-22-KRS UNITED STATES OF AMERICA, Plaintiff-Appellee, versus CHRISTOPHER TOBIN, JUDE LACOUR, AKHIL BARANWAL, GEUNNET CHEBSSI, JAMES PICKENS, Defendants-Appellants. ________________________ Appeals from the United States District Court for the Middle District of Florida _________________________ (April 12, 2012) _________________________ Before TJOFLAT, MARTIN, and HILL, Circuit Judges. MARTIN, Circuit Judge: ______________________________________________________________ This prosecution sought to impose criminal liability for the distribution of more than $85 million worth of controlled substances over the Internet from 2002 to 2005. During those years, Jude LaCour owned and directed a company called Jive Network, with various Internet websites to distribute prescription drugs. The government alleged that the websites allowed customers to order controlled substances without submitting any medical records or any prescriptions. The government charged that Christopher Tobin, James Pickens, and Akhil Baranwal, three medical doctors, approved those orders perfunctorily and that Geunnet Chebssi, a pharmacist, dispensed the drugs. Following a jury trial, these defendants were found guilty of multiple charges. On appeal, all five appellants challenge their convictions. LaCour, Baranwal, and Chebssi also contest their sentences. After careful review of the record and the parties’ briefs, and after having had the benefit of oral argument, we affirm the convictions of the five appellants, as well as the sentences of Baranwal and Chebssi. We vacate LaCour’s sentence and remand for re-sentencing before a different district judge. I. FACTS AND PROCEDURAL HISTORY We recite the facts of this case in the light most favorable to the government. United States v. Augustin, 661 F.3d 1105, 1111 (11th Cir. 2011). We will also briefly describe the procedural history. A. FACTS From 2002 to 2005, Jude LaCour owned and operated a company called Jive Network, which used various Internet websites, including hundreds of affiliate websites, to sell prescription drugs. On these websites, customers were able to select the type, quantity, and dosage of drugs that they wanted. To place an order, a customer needed only to complete a brief online questionnaire regarding his or her medical history. Customers were not required to submit prescriptions or to provide medical records. Jive Network did not otherwise seek to verify the identity of those who placed the orders. Jive Network employed physicians to review the orders. The doctors did not conduct a physical examination of the customers or contact the customers’ primary care physician. The only information that the doctors used to decide whether to approve an order was the online questionnaire. When reviewing customer orders, the doctors did not have the option of changing the type, quantity, or dosage of drugs selected by the customer. Once a doctor approved an order, Jive Network’s computer system generated a prescription that included the doctor’s signature. A pharmacist who worked with Jive Network would then fill the prescription and mail the drug to the customer. From 2002 to 2005, Jive Network sold nearly 5 million Schedule III pills and more than 39 million Schedule IV pills. These Schedule III and IV pills accounted for nearly 80 percent of the drugs sold by Jive Network, and they generated an estimated revenue of more than $85 million over the three-year period. At trial, several witnesses testified that they ordered prescription drugs from the Jive Network websites and that, having become addicted to the substances, they would provide false information about their identity in order to obtain the drugs they wanted. Christopher Tobin, Akhil Baranwal, and James Pickens were three of the medical doctors who reviewed and approved the Internet orders for controlled substances. Geunnet Chebssi was a pharmacist who, in turn, filled the orders. During his time with Jive Network, Tobin approved more than 40,000 orders for controlled substances. These orders included one that Lisa Price placed in June 2003 in the name of her daughter, Krista Price, for phendimetrazine (charged in Count 3), as well as one placed by Terry Richards in October 2003 in the name of her son, Tim Richards, for phentermine (Count 11). Tobin spent as little as six seconds reviewing individual customer orders. Baranwal approved more than 61,000 orders. These included one placed by Mary Trerotola for Adipex-P in June 2004 (charged in Count 14), one placed by Kathy Bachand for phentermine in August 2004 (Count 15), as well as one placed by Lisa Price for phendimetrazine in September 2004 (Count 16). Baranwal spent as little as nine seconds reviewing individual customer orders. Pickens approved more than 40,000 orders. These included an order placed by Jamie McCook for Didrex in November 2004 (charged in Count 21). Pickens spent as little as nineteen seconds reviewing individual customer orders. Chebssi filled more than 21,000 prescriptions. These included one for phentermine for Evan Kopald in October 2004 (charged in Count 18). B. PROCEDURAL HISTORY On May 8, 2008, a grand jury returned a seventy-three-count indictment against the appellants, as well as six other defendants. On September 17, 2008, a grand jury returned a fifty-three-count superseding indictment against the same defendants. Under Count 1 of the superseding indictment, all five appellants were charged with conspiracy to distribute Schedule III and Schedule IV controlled substances without valid prescriptions in violation of 21 U.S.C. § 846. Under The six other defendants were Jeffrey LaCour (Jude LaCour’s father), Hudsen Smith, Alexis Roman Torres, Andrew Desonia, Abel Lau, and Margaret McIntosh. These defendants did not proceed to trial, but pleaded guilty. They have no part of this appeal. 5 separate counts, the five appellants were also charged with distribution of Schedule III and Schedule IV controlled substances without valid prescriptions in violation of 21 U.S.C. § 841(a)(1). LaCour was also charged under Count 32 with conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h); under Counts 33–51 with transactional money laundering in violation of 18 U.S.C. § 1957; and under Count 52 with concealment money laundering in violation of 18 U.S.C. § 1956(a)(1)(B)(i). On February 11, 2009, the grand jury returned a fifty-three-count second superseding indictment. This indictment differed from the first superseding indictment in only one respect: in Count 1, which charged the appellants and other defendants with conspiracy to distribute controlled substances without valid prescriptions, the word “willfully” was replaced with the word “intentionally.” On March 31, 2009, the case went to trial. On April 30, 2009, the jury convicted all five remaining defendants, appellants here, of distribution of controlled substances in violation of 21 U.S.C. § 841(a)(1). LaCour and Tobin were convicted of conspiracy to distribute controlled substances in violation of 21 Counts 2–31 each involved an individual instance of distribution. LaCour was charged 2 under all counts. Tobin was charged under Counts 3 and 11; Baranwal was charged under Counts 14, 15, and 16; Pickens was charged under Count 21; and Chebssi was charged under Count 18. U.S.C. § 846, but the three other appellants were acquitted on the conspiracy count. Finally, the jury convicted LaCour of all remaining counts with which he was charged: conspiracy to engage in money laundering in violation of 18 U.S.C. § 1956(h), transactional money laundering in violation of 18 U.S.C. § 1957, and concealment money laundering in violation of 18 U.S.C. § 1956(a)(1)(B)(i). About three months later, the District Court sentenced LaCour to 97 months imprisonment; Tobin to 36 months imprisonment; Baranwal to 27 months imprisonment; Pickens to 21 months imprisonment; and Chebssi to 15 months imprisonment. All five appellants timely appealed. II. STANDARDS OF REVIEW The appellants raise a multitude of issues on appeal. We review de novo the following questions: whether a statute is unconstitutionally vague, United States v. Duran, 596 F.3d 1283, 1290 (11th Cir. 2010); whether the rule of lenity is applicable, see United States v. Murrell, 368 F.3d 1283, 1285 (11th Cir. 2004); whether an indictment sufficiently presents the elements of the charged offense, United States v. Dabbs, 134 F.3d 1071, 1079 (11th Cir. 1998); whether the district court misstated the law in its jury instructions, United States v. Deleveaux, 205 F.3d 1292, 1296 (11th Cir. 2000); whether the evidence is sufficient to support a conviction, United States v. Chirino-Alvarez, 615 F.3d 1344, 1346 (11th Cir.7 2010); whether a prosecutor engaged in misconduct, United States v. Epps, 613 F.3d 1093, 1100 (11th Cir. 2010); and whether a sentence is unconstitutional, United States v. Rozier, 598 F.3d 768, 770 (11th Cir. 2010). In general, we review for abuse of discretion a district court’s grant of a motion in limine, United States v. Harrison, 534 F.3d 1371, 1373 (11th Cir. 2008); a district court’s denial of a motion to subpoena a witness under Federal Rule of Criminal Procedure 17, United States v. Link, 921 F.2d 1523, 1528 (11th Cir.1991); a district court’s evidentiary ruling during trial to which an objection is timely made, United States v. Baker, 432 F.3d 1189, 1202 (11th Cir. 2005); a district court’s limitation on the scope of cross-examination, United States v. Maxwell, 579 F.3d 1282, 1295 (11th Cir. 2009); and a district court’s refusal to give a requested jury instruction, United States v. Svete, 556 F.3d 1157, 1161 (11th Cir. 2009) (en banc). A district court abuses its discretion, however, if it commits an error of law. United States v. Peter, 310 F.3d 709, 711 (11th Cir.2002). We review de novo questions of law. See Murrell, 368 F.3d at 1285. We review for abuse of discretion a district court’s decision to deny a motion to continue or delay a trial, United States v. Graham, 643 F.3d 885, 893 (11th Cir. 2011); a district court’s decision to deny a motion for severance, United States v. Schlei, 122 F.3d 944, 983 (11th Cir. 1997); a district court’s decision to 8 deny a motion for mistrial based on remarks by the district court, United States v. Tampas, 493 F.3d 1291, 1303 (11th Cir. 2007); a district court’s decision to deny a motion for mistrial based on the jury’s exposure to extrinsic influence, United States v. Ronda, 455 F.3d 1273, 1296 n.33 (11th Cir. 2006); a district court’s investigation of alleged juror misconduct, United States v. Yonn, 702 F.2d 1341, 1344–45 (11th Cir. 1983); and the substantive reasonableness of a sentence, United States v. Jordan, 582 F.3d 1239, 1249 (11th Cir. 2009). An unpreserved objection to a district court decision, such as an evidentiary ruling or its response to a jury question, is reviewed for plain error. See Baker, 432 F.3d at 1202; see also United States v. Wright, 392 F.3d 1269, 1279–80 (11th Cir. 2004). A district court’s decision to deliver an Allen charge is reviewed only to assess whether the charge had a coercive impact. United States v. Trujillo, 146 F.3d 838, 846 (11th Cir. 1998). A district court’s participation in plea discussions constitutes plain error that we may address sua sponte. United States v. Corbitt, 996 F.2d 1132, 1134 (11th Cir. 1993). III. DISCUSSION A. RULE OF LENITY AND VAGUENESS The appellants first argue the Controlled Substances Act (CSA) is unconstitutionally vague as applied to them and that, even if not, the rule of lenity should be applied to reverse their convictions. The essence of both arguments is that at the time of their actions, the appellants did not have fair notice that their conduct would be the subject of criminal prosecution. The government disagrees with both arguments, but like the appellants, seems to suggest that we should resolve the constitutional question before addressing the issue of statutory construction. The Supreme Court, however, has recently reiterated that federal courts must first consider a question of statutory interpretation before addressing a vagueness challenge. Skilling v. United States, 130 S. Ct. 2896, 2929 (2010). Thus, we will discuss the argument regarding the rule of lenity before turning to the constitutional question. 1. Rule of Lenity The rule of lenity “ensures fair warning” by “resolving ambiguity in a criminal statute as to apply it only to conduct clearly covered.” United States v. Lanier, 520 U.S. 259, 266, 117 S. Ct. 1219, 1225 (1997). The Supreme Court has cautioned, however, that “[t]he simple existence of some statutory ambiguity . . . is not sufficient to warrant application of that rule.” Muscarello v. United States, 524 U.S. 125, 138, 118 S. Ct. 1911, 1920 (1998). Rather, for the rule to apply, there must be some “grievous ambiguity” in the statute—that is, an ambiguity that remains even after all of the tools of statutory interpretation are brought to bear. Id.; accord United States v. Camacho-Ibarquen, 410 F.3d 1307, 1315 (11th Cir.2005) (“We will apply the rule of lenity only if the provision being construed is still ambiguous after application of normal rules of construction.”). “The first rule in statutory construction is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute. If the statute’s meaning is plain and unambiguous, there is no need for further inquiry.” United States v. Fisher, 289 F.3d 1329, 1337–38 (11th Cir. 2002) (internal quotation marks and citation omitted). If the language is ambiguous, however, we may look to the relevant legislative history. United States v. Dodge, 597 F.3d 1347, 1352 (11th Cir. 2010). We bear in mind that “[s]tatutory construction . . . is a holistic endeavor,” so a statute must be examined as a whole. Id. (quotation marks omitted). As we stated, all five appellants were convicted of distribution of Schedule III and Schedule IV controlled substances in violation of 21 U.S.C. § 841(a)(1). In addition, LaCour and Tobin were convicted of conspiracy to distribute these narcotics in violation of 21 U.S.C. § 846. LaCour and Tobin do not argue that the conspiracy statute is overly vague or that it should be construed narrowly. The key question, then, is the meaning of Section 841(a)(1). Section 841(a)(1) provides that “[e]xcept as authorized by [the CSA], it shall be unlawful for any person knowingly or intentionally . . . to . . . distribute[] or dispense . . . a controlled substance.” 21 U.S.C. § 841(a)(1). Section 829, in turn, authorizes “practitioner[s]” to dispense Schedule III and Schedule IV substances with a “prescription.” Id. § 829(b). Practitioners who seek to dispense controlled substances must register with the Attorney General. Id. § 822(a)(2). The key statutory terms—“controlled substance,” “dispense,” “distribute,” “practitioner”, and “prescription”—are defined either by statute, see id. § 802(6), (10), (11), (21), or by regulation, see 21 C.F.R. § 1306.04(a). In particular, the regulations promulgated by the Attorney General specify that a “prescription” is one that must be “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). The appellants argue that Section 841(a)(1) is ambiguous and, in so doing, advance two different ideas. First, they suggest that at the relevant time—from 2002 to 2005—Section 841(a)(1) was ambiguous about whether it applied to distributions over the Internet. Second, they argue, also with respect to that period of time, that Section 841(a)(1) was ambiguous about whether it required a doctor to have an in-person patient visit before providing a prescription over the Internet. Both of these arguments rest on the fact that in 2008, Congress passed the Ryan Haight Online Pharmacy Consumer Protection Act, Pub. L. No. 110-425, 122 Stat. 4820 (2008). That legislation amended the CSA to explicitly prohibit the distribution of controlled substances over the Internet. See 21 U.S.C. งง 841(h), 829(e)(1). The act also defined the term “valid prescription” in the context of the Internet as one made by “a practitioner who has conducted at least 1 in-person medical evaluation of the patient.” Id. § 829(e)(2)(A)(i). Neither of the appellants’ arguments prevails. First, it is clear that even before the Ryan Haight Act was passed, the CSA criminalized the distribution of controlled substances over the Internet. Indeed, the language of the statute makes no distinction among channels of distribution. See 21 U.S.C. § 841(a)(1). The statute, by its own terms, thus makes it unlawful for a practitioner to distribute a controlled substance without a valid prescription—regardless of the channel of distribution. The appellants find it significant that at the relevant time, the CSA did not specifically mention the Internet. We note, however, that the CSA also did not (and does not) explicitly mention in-person, mail, or phone transactions. See id. But these transactions are covered under the statute. The enactment of the Ryan Haight Act does not compel the conclusion that the CSA had previously been ambiguous about whether it applied to the Internet. We have recognized Congress may amend a statute simply to confirm existing law. United States v. Sepulveda, 115 F.3d 882, 885 n.5 (11th Cir. 1997). “Thus, an amendment to a statute does not necessarily indicate that the unamended statute meant the opposite.” Id. (quotation marks omitted). Congress’s decision to amend the CSA in 2008 is best understood as confirming that under the CSA, it is unlawful to distribute controlled substances without a valid prescription, regardless of whether the prescription is made in person, by mail, by phone, or through the Internet. The appellants’ second argument is more sophisticated, but it also fails. The appellants suggest that because the Ryan Haight Act specifically defines a valid Internet prescription as one that is made following an in-person patient visit, 21 U.S.C. § 829(e)(2)(A)(i), the CSA, prior to its 2008 amendment, was ambiguous as to whether it required an in-person visit. It is true that neither the text of 21 U.S.C. § 841(a)(1) nor the text of 21 C.F.R. § 1306.04 speaks to this specific issue. We therefore take the further step of examining the CSA as a whole, as well as its legislative history. See Dodge, 597 F.3d 1347, 1352. Doing so, we conclude that the appellants’ argument must be rejected insofar as it rests on a fundamental misunderstanding of the structure and operation of the CSA and Congress’s decision to enact the Ryan Haight Act in 2008. The overarching aim of the CSA is to combat drug abuse and to control the legitimate and illegitimate traffic of controlled substances. Gonzales v. Oregon, 546 U.S. 243, 250, 126 S. Ct. 904, 911 (2006). Congress in this respect recognized that practitioners have significant access to controlled substances and that as a result, they have “the greatest opportunity” for diverting drugs to illegitimate use. United States v. Moore, 423 U.S. 122, 135, 96 S. Ct. 335, 342 (1975). Thus, a significant feature of the CSA’s “comprehensive, closed regulatory regime,” Gonzales, 546 U.S. at 250, 126 S. Ct. at 911, is the requirement that practitioners be registered with the Attorney General, see 21 U.S.C. § 822(a)(2). As noted, under the CSA, a practitioner who seeks to dispense controlled substances in accordance with 21 U.S.C. § 829 must be registered with the Attorney General to do so. See 21 U.S.C. § 822(a)(2). Congress was undoubtedly aware that by pulling medical professionals into the statute’s ambit, it could easily “encroach on a state’s traditional authority to regulate medical practices.” Oregon v. Ashcroft, 368 F.3d 1118, 1128 (9th Cir.2004), aff’d sub nom. Gonzales v. Oregon, 546 U.S. 243, 126 S. Ct. 911 (2006). When Congress enacted the CSA, it thus manifested its intent to leave it to the states to define the applicable standards of professional practice. Indeed, Congress directed the Attorney General to register practitioners who were authorized under state law to dispense controlled substances. Pub. L. No. 91-513, tit. II, § 303(f), 84 Stat. 1236, 1255 (1970) (codified as amended at 21 U.S.C. § 823(f)). Congress also provided that the Attorney General could revoke such registration only if, for instance, the practitioner “had his State license or registration suspended, revoked, or denied by competent State authority.” Id. § 304(a)(3) (codified at 21 U.S.C. § 824(a)(3)). In 1984, Congress amended the CSA to authorize the Attorney General to refuse to register, and to revoke the registration of, a practitioner whose registration would be “inconsistent with the public interest.” Comprehensive Crime Control Act of 1984, Pub. L. No. 98-473, งง 511, 512, 98 Stat. 1996, 2073 (1984) (amending 21 U.S.C. งง 823(f), 824(a)). This amendment did expand the scope of the Attorney General’s authority, but Congress did not signal any intent to disregard state standards of medical practice. Indeed, in amending the CSA, Congress observed that “because of a variety of legal, organizational, and resource problems, many states are unable to take effective or prompt action against violating registrants.” S. Rep. No. 98-225, at 223 (1984), reprinted in 1984 U.S.C.C.A.N. 3182, 3448. As a result, “even where there is strong evidence that [practitioners] have significantly abused their authority to dispense controlled substances,” they may “continue to dispense drugs.” Id. Congress’s decision to authorize the Attorney General to refuse to register, or to revoke the registration of a practitioner even when that practitioner maintains his license or registration under state law thus does not reflect an intent to disregard state law. Far from it, Congress was concerned that resource and other constraints limited the ability of the states to enforce their standards of professional practice. See id. The 1984 amendment to the CSA was thus intended to bolster those state standards. The amendment embodies this intent by requiring the Attorney General to consider a practitioner’s compliance with applicable state law, as well as the recommendation of the relevant state licensing board, in determining whether that practitioner’s registration would be “inconsistent with the public interest.” See 21 U.S.C. งง 823(f), 824(a)(4); see also S. Rep. No. 98-225, at 223, reprinted in 1984 U.S.C.C.A.N. at 3449 (providing that the Attorney General should “continue to give deference to the opinions of state licensing authorities”). In light of this legislative scheme, which underscores Congress’s desire to defer to the standards of professional practice set by the states, it is not surprising that when the Supreme Court examined the CSA’s structure and operation in Gonzales v. Oregon, it observed that “the statute manifests no intent [on the part of Congress] to regulate the practice of medicine generally.” 546 U.S. at 270, 126 S. Ct. at 923. The Court explained that this was “understandable” because under our federal system, the “regulation of health and safety is primarily . . . a matter of local concern.” Id. at 270, 271, 126 S. Ct. at 923 (quotation marks omitted). The Court acknowledged that Congress has the authority to set “national standards” of medical practice. Id. at 271, 126 S. Ct. at 923. But the Court concluded that there was “only one area in which Congress [had] set general, uniform standards”—namely, the treatment of narcotic addiction. Id. at 271, 126 S. Ct. at 923–24. (Tellingly, even when Congress made the decision to establish national standards in that specific area, it noted that it was “concerned about the appropriateness of having federal officials determine the appropriate method of the practice of medicine.” H.R. Rep. No. 91-1444, at 14 (1970), reprinted in 1970 U.S.C.C.A.N. 4566, 4581.) About two years after the Supreme Court decided Gonzales, Congress amended the CSA by enacting the Ryan Haight Act, and when it did, it confirmed the Supreme Court’s understanding of the basic structure and operation of the CSA, which reflect “the background principles of our federal system.” Gonzales, 546 U.S. at 274, 126 S. Ct. at 925. Indeed, at the time that Congress was considering the Ryan Haight Act, the states had divergent approaches to whether they required practitioners to conduct an in-person evaluation of a patient before issuing a prescription over the Internet. The House Report observed that “all states allow medications to be purchased via the Internet, but some states do not specifically require in-person consultations for prescriptions.” H.R. Rep. No. 110- 869, at 17 (2008), reprinted in 2009 U.S.C.C.A.N. 2130, 2133. Taking note of this divergence, Congress expressed its intent to replace, in the specific area of Internet prescriptions, the state standards with a national one. See id. Congress’s decision to enact the Ryan Haight Act thus underscores the fact that prior to the CSA’s amendment in 2008, the statute was not ambiguous as to whether an in-person consultation was required for a prescription over the Internet to be valid. Rather, consistent with the statute’s “recognition of the state regulation of the medical profession,” Gonzales, 546 U.S. at 270, 126 S. Ct. at 923, the CSA incorporated the applicable state standard on this issue. See H.R. Rep. No. 110-869, at 17, reprinted in 2009 U.S.C.C.A.N. at 2133. The Ryan Haight Act simply reflected a conscious choice by Congress to displace the different state standards in favor of a single, national one on the specific question of whether an in-person patient visit is required for an Internet prescription to be valid. See id. The appellants cite to a number of sources that predate the Ryan Haight Act in order to suggest that the CSA was previously ambiguous about whether an in person patient visit was required in order for a prescription to be valid. For instance, they point to a 2004 Congressional Research Service report, which stated that it is “not necessarily illegal” for a doctor to write a prescription based solely on an online questionnaire. Jody Feder, Cong. Research Serv., Prescription Drug Importation and Internet Sales: A Legal Overview 18 (2004). In view of the overall structure and operation of the CSA, it is clear that the appellants misunderstand the meaning of these statements. The fact that it was “not necessarily illegal” for physicians to prescribe drugs without seeing a patient in person simply reflects the fact that at the time, the CSA incorporated the state standard at issue, and as Congress recognized, the states had different approaches on this subject. See H.R. Rep. No. 110-869, at 17, reprinted in 2009 U.S.C.C.A.N. at 2133. In sum, the appellants’ argument that the rule of lenity should apply cannot prevail. The appellants stress that prior to the Ryan Haight Act, the CSA was ambiguous about whether it proscribed the distribution of controlled substances over the Internet. But the plain language of the CSA as it then existed makes it clear that the channel through which controlled substances are distributed is of no consequence. The appellants also suggest that prior to its 2008 amendment, the CSA was ambiguous as to whether it required an in-person patient visit for a prescription over the Internet to be valid. To the contrary, Congress’s decision to enact the Ryan Haight Act demonstrates that prior to its amendment, the CSA simply incorporated the applicable state standard on the issue. The Ryan Haight 3 Act did not remove an ambiguity in the CSA. It displaced state standards in favor of a national one in the area of Internet prescriptions. 2. Vagueness The appellants also argue that the CSA is unconstitutionally vague as applied to them. “Void for vagueness means that criminal responsibility should not attach where one could not reasonably understand that his contemplated conduct is proscribed.” Duran, 596 F.3d at1290 (quotation marks omitted). A statute is void for vagueness if it fails to “define the criminal offense [1] with sufficient definiteness that ordinary people can understand what conduct is We agree with the appellants that this is not necessarily a case like Moore, where the 3 conduct that was at issue simply did not meet any applicable state standard of practice. See 423 U.S. at 126, 96 S. Ct. at 338 (noting that the defendant conceded that his conduct “was inconsistent with all accepted methods of treating addicts”). Indeed, during the period of time that is relevant to this case, the states had different approaches on the specific issue of whether an in-person patient consultation was required for a prescription to be issued over the Internet. See H.R. Rep. No. 110-869, at 17, reprinted in 2009 U.S.C.C.A.N. at 2133. Notably the appellants here have not made the argument that their behavior was consistent with the state standard that applied to them or that the District Court should have asked the jury to assess their behavior in light of the applicable state standard. To the extent that a distribution of controlled substance over the Internet took place before the effective date of the Ryan Haight Act, the conduct would be prosecuted under Section 841(a)(1). For any distribution that takes place on or after the effective date of the Act, the prosecution would take place under Section 841(h). prohibited and [2] in a manner that does not encourage arbitrary and discriminatory enforcement.” Id. (quotation marks omitted). In light of our analysis set out above, we must also reject the appellants’ argument that the CSA is unconstitutionally vague as applied to them. In effect, the appellants argue that because prior to its 2008 amendment the CSA did not proscribe specific means of distribution, it is unconstitutionally vague as applied to them. However, we point out again that the CSA did not (and does not) specifically refer to in-person, phone, or mail transactions. Under the appellants’ theory, the CSA would also be unconstitutionally vague as applied to cases where controlled substances are distributed in these ways. The appellants cite no case law to support this anomalous result. The appellants also stress that the CSA did not explicitly indicate that an in-person patient visit was required for a prescription over the Internet to be valid. As we have said, however, the CSA merely incorporated the appropriate state standard on this question. The CSA therefore had “sufficient definiteness.” Id. In summary, the appellants’ argument that the CSA is unconstitutionally vague does not carry the day. Accord United States v. All five appellants also suggest that the District Court should have dismissed the 5 indictment because it fails to set forth the essential elements of the offense under Section 841(a)(1). More specifically, they argue that the indictment does not contain sufficient allegations to show that they acted outside the usual course of professional practice. This argument has no merit. Congress has specified that “[i]t shall not be necessary for the United States to negative any exemption or exception set forth in [the CSA] in any . . . indictment.” 21 Bansal, 663 F.3d 634, 656–57 (3d Cir. 2011) (rejecting similar vagueness challenge); United States v. Birbragher, 603 F.3d 478, 486–89 (8th Cir. 2010) (same). B. STATE OF MIND UNDER SECTION 841(a)(1) The appellants also challenge the way the District Court addressed issues regarding state of mind under Section 841(a)(1). These issues arose in several contexts, including with respect to the government’s motions in limine and the jury instructions. The appellants argue that the District Court should have allowed evidence of their subjective beliefs that they were not violating the law and that they were acting in the course of professional practice. The appellants also contend that the District Court should have instructed the jury to consider their good-faith beliefs. Before going further, it may be useful to again note the legal framework that governs our analysis. As set out above, Section 841(a)(1) provides that “[e]xcept as authorized by [the CSA], it shall be unlawful for any person knowingly or intentionally to . . . distribute[] or dispense . . . a controlled substance.” 21 U.S.C. U.S.C. § 885(a)(1). In United States v. Steele, 147 F.3d 1316 (11th Cir. 1998) (en banc), we recognized that as a result of this statutory directive, an indictment is not insufficient if it does not include the legal assertion that the distribution of controlled substances occurred outside of the “usual course of professional practice.” Id. at 1319–20. From this holding, it follows that neither is an indictment insufficient if it does not contain factual allegations suggesting that a distribution occurred outside of the “usual course of professional practice.” § 841(a)(1). Section 829, in turn, authorizes “practitioner[s]” to dispense Schedule III and Schedule IV substances with a “prescription.” Id. § 829(b). For a “prescription” to be effective, it must be “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). A review of these different provisions makes it clear that the appellants have lumped together two separate issues regarding state of mind. First, there is the question of the requisite mens rea under Section 841(a)(1) itself—that is, what is the state of mind that must accompany the act of distributing or dispensing a controlled substance? Second, there is the viewpoint from which the jury must determine whether a prescription is issued for a “legitimate medical purpose” and in the “usual course of professional practice.” 21 C.F.R. § 1306.04(a). 1. State of Mind Under Section 841(a)(1) Itself The District Court dealt with the first question in various contexts, and its treatment of the issue was consistent throughout the entire case. First, in granting one of the government’s motions in limine, the District Court held that the mens rea under Section 841(a)(1) is “knowing and intentional” and that it was not necessary for the government to prove willfulness. The District Court explained that as a result, evidence that the defendants had a sincere belief that their distribution of controlled substances conformed with the law would be “irrelevant” and therefore not admissible as to the distribution counts. Second, Tobin filed a motion under Federal Rule of Criminal Procedure 17 to subpoena Robert Bigelow. The District Court understood that Bigelow, an attorney, would have testified that he informed Tobin that his conduct “was a regulatory matter and did not subject Tobin to criminal charges.” The District Court concluded that this testimony would not be relevant and therefore denied the motion. Third, Tobin requested that the District Court instruct the jury that “[g]ood faith is a complete defense to the charges in the indictment” and that good faith reliance on advice of counsel precludes a finding of guilt. The District Court declined to give this instruction. Fourth, Chebssi also requested that the District Court provide a “theory of defense” instruction. That instruction states, among other things, that “she, at all times, . . . ha[d] no intention to do what the law forbids. It is her position that her subjective intent was, at all times, . . . to comply with the law to the best of her ability . . . .” The District Court also declined to give this instruction. The District Court’s conclusion that the mens rea under Section 841(a)(1) is knowledge rather than willfulness is correct. Again, Section 841(a)(1) provides that unless otherwise authorized, “it shall be unlawful for any person knowingly or intentionally to . . . distribute[] or dispense . . . a controlled substance.” 21 U.S.C. 841(a)(1). The language of the statute does not refer, in any way, to willfulness, and as a consequence, we have said that the government only needs to prove that the defendant acted knowingly. See, e.g., United States v. Cruz-Valdez, 773 F.2d 1541, 1544 (11th Cir. 1985) (en banc); see also United States v. Faust, 456 F.3d 1342, 1345 (11th Cir. 2006). Indeed, a “statute’s inclusion of the word “As a general matter, when used in the criminal context, a ‘willful’ act is one undertaken with a ‘bad purpose.’” Bryan v. United States, 524 U.S. 184, 191, 118 S. Ct. 1939,1945 (1998). In a case involving willfulness, the government must prove that “the defendant acted with knowledge that his conduct was unlawful.” Id. (quoting Ratzlaf v. United States, 510 U.S. 135, 137, 114 S. Ct. 655, 657 (1994)); see also United States v. Dominguez, 661 F.3d 1051, 1072 (11th Cir. 2011); United States v. Haun, 494 F.3d 1006, 1009 (11th Cir. 2007). By contrast, the term “knowingly” means that “the act was performed voluntarily and intentionally,and not because of a mistake or accident.” United States v. Woodruff, 296 F.3d 1041, 1047 (11th Cir. 2002). This state of mind “merely requires proof of knowledge of the facts that constitute the offense,” not knowledge of the unlawfulness of the action. Bryan, 524 U.S. at 193, 119 S. Ct. at 1946. The Supreme Court has recognized that under some statutes, “willfulness” may entail something more than just a bad purpose or the general awareness that the action is unlawful. Specifically, in the context of “highly technical statutes that present[] the danger of ensnaring individuals engaged in apparently innocent conduct”—most notably, the Internal Revenue Code—the government must show that “the defendant was aware of the specific provision . . . that he was charged with violating.” Id. at 194, 118 S. Ct. at 1946–47 (citing Cheek v. United States, 498 U.S. 192, 201, 111 S. Ct. 604, 610 (1991)) (emphasis added). The appellants have not suggested that this form of willfulness is required under the CSA, and we do not see the CSA as the sort of technical statute that requires the government to prove that “the defendant was aware of the duty at issue.” Cheek, 498 U.S. at 202, 111 S. Ct. at 611. ‘knowingly’ tilts against any possibility that Congress intended any additional scienter requirement.” United States v. Polar, 369 F.3d 1248, 1252 (11th Cir.2004). Because Section 841(a)(1) requires knowledge, and not willfulness, the appellants’ challenges to the rulings of the District Court fail. First, for the distribution counts, the District Court correctly granted the government’s motion in limine to exclude evidence that the defendant subjectively believed that they were not committing the offenses. As the District Court explained, because the mens rea under Section 841(a)(1) consists of knowledge rather than willfulness, any evidence that the defendants had a sincere belief that their distribution of controlled substances was in conformity with the law would be “irrelevant” to the distribution counts and thus inadmissible in that respect. Second, for the same reason, the District Court was correct in denying Tobin’s motion to subpoena Bigelow, insofar as this related to the distribution counts. Bigelow would have testified that he told Tobin that his conduct would have regulatory, but not criminal, implications. To obtain a conviction of Tobin A district court may deny a Rule 17 motion for different reasons, such as the 7 untimeliness of the request or the failure to show indigency. See Link, 921 F.2d at 1528. The District Court’s decision to deny the Rule 17 motion in this case was based solely on the relevance of Bigelow’s proffered testimony. for the distribution counts, however, the government was not required to prove that Tobin had a “bad purpose either to disobey or disregard the law.” United States v. Haun, 494 F.3d 1006, 1010 (11th Cir. 2007). Bigelow’s testimony would therefore have been irrelevant to the distribution counts. Third, because it was not necessary for the government to prove willfulness under Section 841(a)(1), the District Court properly declined to give Tobin’s proposed “theory of defense” jury instructions as to the distribution counts. Specifically, we have recognized that good faith reliance on counsel is a defense only for crimes that require willfulness. See, e.g., United States v. Langston, 590 F.3d 1226, 1235 (11th Cir. 2009) (noting that the defense is “designed to refute the government’s proof that the defendant intended to commit the offense”); United States v. Brown, 983 F.2d 201, 203 (11th Cir. 1993) (recognizing that advice of counsel may be used to “negate the willfulness element”). Fourth, as we noted, Chebssi also requested that the District Court provide a “theory of defense” instruction. That proposed instruction stated, among other things, that “she, at all times, . . . ha[d] no intention to do what the law forbids. It is her position that her subjective intent was, at all times, . . . to comply with the law to the best of her ability.” Again, this instruction assumes that Section 841(a)(1) involves a mens rea of willfulness, and the District Court was correct in rejecting it. 2. State of Mind Under 21 C.F.R. § 1306.04(a) The District Court was not as consistent in its rulings on the question of state of mind under 21 C.F.R. § 1306.04(a). In its order granting one of the government’s motions in limine, the District Court stated that it is “not prohibiting evidence or argument regarding defendants’ good faith with respect to whether they prescribed controlled substances in good faith as part of his/her medical treatment for a patient in the usual course of professional conduct.” However, in its order granting the government’s other motion in limine, the District Court agreed with the government that “the ‘usual course of professional practice’ is [not] a subjective standard.” At the same time, it reiterated that “defendants may offer subjective, good faith evidence of meeting the patient’s needs.” Ultimately, the District Court instructed the jury to consider the question of good faith in determining whether the prescriptions were valid. The District Court said: A controlled substance is prescribed by a physician in the usual course of professional practice and, therefore, lawfully if he or she prescribed the controlled substance in good faith as part of his or her medical treatment for the patient in accordance with the standards of medical practice generally recognized and accepted in the United States. . . . Similarly, . . . a pharmacist is authorized to distribute a controlled substance pursuant to a prescription issued for a legitimate medical purpose by a doctor acting in the course of professional practice. The defendant pharmacist in this case maintains at all times she acted in good faith and in accordance with the standard of pharmaceutical practice generally recognized and accepted in the United States in dispensing medication. 8 The seemingly unsteady course of the District Court no doubt reflects the fact that our precedent has not always been clear in specifying the standpoint from which a jury is to determine whether a prescription was “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). In United States v. Williams, 445 F.3d 1302 (11th Cir. 2006), abrogated on other grounds by United States v. Lewis, 492 F.3d 1219, 1220 (11th Cir. 2007) (en banc), we emphasized that “a physician’s prescribing behavior” must be judged by an “objective standard.” 445 F.3d at 1309. Yet, in the same case, we approved a charge that instructed the jury to consider whether the defendant had a “good faith” belief that he was prescribing medicine in “the usual course of a professional practice.” Id. To the extent that the instruction speaks to “standards of [professional] practice generally recognized and accepted in the United States,” and thus suggests that the CSA imposes national standards of professional practice, it is inconsistent with the Supreme Court’s observation that unless Congress specifies otherwise, the CSA does not establish national standards. Gonzales, 546 U.S. at 269–72, 126 S. Ct. at 922–24. Again, none of the appellants have argued that the District Court should have instructed the jury to assess their behavior in light of the state standards that applied to them. See supra note 3. Similarly, in United States v. Merrill, 513 F.3d 1293 (11th Cir. 2008), we stressed that “[t]he appropriate focus is not on the subjective intent of the doctor.” Id. at 1306. Again, however, we approved a charge that instructed the jury to consider whether the defendant had a “good faith” belief that he was prescribing a controlled substance “in the usual course of professional [practice].” Id. Perhaps muddying the water even further, our decision in Williams cited approvingly to a decision of the Fifth Circuit, which we described as holding that the CSA “provide[s] both subjective and objective measures of the prescribing behavior.” Williams, 445 F.3d at 1310 (citing United States v. Norris, 780 F.2d 1207, 1209 (5th Cir. 1986)). Still, we read our decisions to form a coherent whole. As we have said, the CSA authorizes the distribution of controlled substances by a practitioner so long as the prescription is “issued for a legitimate medical purpose [and] in the usual course of [the practitioner’s] professional practice.” 21 C.F.R. § 1306.04(a). Because the CSA prohibits the distribution of prescription drugs that is not authorized, see 21 U.S.C. § 841(a)(1), a distribution is unlawful if 1) the prescription was not for a “legitimate medical purpose” or 2) the prescription was not made in the “usual course of professional practice.” In Norris, the Fifth Circuit upheld a charge that instructed the jury to consider 1) whether the doctor subjectively believed that the prescription was for a “legitimate medical purpose” and 2) whether, from an objective standpoint, the controlled substances were dispensed in the “usual course of professional practice.” 780 F.2d at 1209. Our decisions in Williams and Merrill follow this framework. In both cases, the defendants argued that whether a prescription is made in the “usual course of professional practice” must be evaluated from a subjective point of view. See Williams, 445 F.3d at 1309; see also Merrill, 513 F.3d at 1305. In Williams, we rejected this argument, citing with approval the Fifth Circuit’s decision in Norris. Williams, 445 F.3d at 1309–10. In turn, in Merrill, we adhered to our decision in Williams. See Merrill, 513 F.3d at 1306. These cases thus stand for the proposition that a jury must determine from an objective standpoint whether a prescription is made in the “usual course of professional practice.” Our decisions in Williams and Merrill to uphold references to “good faith” reflect our alternative holding that even if a subjective standard were to apply, the jury charges in those In other words, even if a physician is shown to have subjectively believed that the 9 prescription was for a legitimate medical purpose, the prescription may still be considered invalid if it was not made in the usual course of professional practice. See United States v. Nelson, 383 F.3d 1227, 1233 (10th Cir. 2004); see also United States v. Armstrong, 550 F.3d 382, 397 (5th Cir. 2008), overruled on other grounds by United States v. Balleza, 613 F.3d 432, 433 n.1 (5th Cir. 2010). cases were adequate. See Williams, 445 F.3d at 1310; see also Merrill, 513 F.3d at 1306. 10 Considering this, the District Court did not commit error. First, the appellants complain that in granting one of the government’s motions in limine, the District Court rejected the notion that a defendant’s subjective belief that he is acting in the “usual course of professional practice” is relevant. The District Court’s conclusion, however, is consistent with our decisions in Williams and Merrill. See Williams, 445 F.3d at 1309; see also Merrill, 513 F.3d at 1305. Second, the appellants suggest that as the trial progressed, the District Court became increasingly reluctant to admit evidence of good faith. To the extent that this is so, its decision, again, was entirely consistent with the holdings of Williams and Merrill, which indicate that whether a prescription is made in the usual course of professional practice is to be determined from an objective, and not subjective, viewpoint. See Williams, 445 F.3d at 1309; see also Merrill, 513 F.3d at 1305. Third, to the extent that the appellants requested that the District Court instruct the jury to consider the defendants’ subjective beliefs that they were acting Chebssi suggests that requiring an objective determination as to whether a practitioner 10 acted outside of the usual course of professional practice will create a “strict liability offense.” This is not a valid concern. The possibility that a practitioner will unknowingly run afoul of the CSA is extremely low. In general, the CSA incorporates the applicable state standard of professional practice, and thus it holds practitioners to standards to which they are already bound. in the usual course of professional practice, the District Court had grounds to reject these requests because they did not provide “a correct statement of the law.” Jordan, 582 F.3d at 1247. Even if we were to accept that the requests did accurately reflect the law, we note that the District Court’s jury instruction did allow the jury to consider the defendants’ subjective beliefs. The District Court’s own charge thus “substantially covered” the appellants’ proposed instructions. Id. at 1248. In fact, the District Court’s instruction on the issue of good faith is 11 essentially the same as those upheld in Williams, see 445 F.3d at 1309, and Merrill, see 513 F.3d at 1306. This being the case, we cannot say that the DistrictCourt erred in any way. C. STATE OF MIND UNDER SECTION 846 LaCour and Tobin were both convicted of Count 1, which charged them with conspiracy to distribute controlled substances in violation of 21 U.S.C. § 846. Like the issue of the state of mind under Section 841(a)(1), the question of the state of mind under Section 846 came up before and during trial. First, in ruling Chebssi argues that the District Court should have further defined the term “good 11 faith.” Given that Chebssi was not entitled to an instruction that even referred to good faith, this argument fails. Baranwal separately complains that while the District Court included a reference to good faith in the conspiracy count, it did not do so with the substantive counts. This Court “determines whether the charges as a whole sufficiently instructed the jury.” United States v. Hooshmand, 931 F.2d 725, 731 (11th Cir. 1991) (emphasis added). This jury could have easily referred back to the District Court’s instruction on the conspiracy count to refresh its understanding of the law that applies to the substantive count. on one of the government’s motions in limine, the District Court held that the offense of conspiracy under Section 846 does not require proof of willfulness. The District Court thus concluded that with respect to the conspiracy count, it was appropriate to exclude evidence that the defendants held a good-faith belief that their actions were lawful. Second, the District Court denied Tobin’s Rule 17 motion to subpoena Bigelow. As we have said, the District Court understood that “Bigelow would testify that he told Tobin that [his] conduct was a regulatory matter and did not subject Tobin to criminal charges.” The District Court concluded that “Tobin’s belief that his conduct was not criminally unlawful” was irrelevant, even as to the conspiracy count. Third and finally, the District Court declined to give Tobin’s proposed jury instruction on advice of counsel as it related to the conspiracy count. The proposed instruction stated, in part, that “[g]ood faith is a complete defense to the charge in the indictment” and that Tobin “would not be acting with ‘intent’ to do wrong if, before taking any action with regard to the alleged offense, [he] consulted in good faith [with] an attorney.” LaCour and Tobin argue that these decisions are incorrect and that, as a consequence, their convictions under Count 1 must be reversed.12 LaCour and Tobin also argue that the District Court erred when “it allowed the Second 12 Superseding Indictment to delete the term ‘willfully’” from Count 1 of the indictment. This contention lacks merit. The Second Superseding Indictment specifically refers to 21 U.S.C. § 1. Exclusion of Evidence As noted, in granting one of the government’s motions in limine, the District Court held that the offense of conspiracy under Section 846 does not require proof of willfulness. In support of this conclusion, the District Court cited the unpublished decision of this Court in United States v. Morales De Carty, 300 F. App’x 820, 828 (11th Cir. 2008). We cannot reconcile that decision, however, with our binding precedent. We have repeatedly recognized that a conviction under Section 846 requires evidence of willfulness on the part of the defendant. See, e.g., United States v. Ruiz, 59 F.3d 1151, 1152, 1154 (11th Cir. 1995) (noting that “willfully” is an element of the conspiracy offense under Section 846). The 13 846. We have previously held that an indictment is sufficient if it “specifically refers to the statute on which the charged [is] based.” United States v. Fern, 155 F.3d 1318, 1325 (11th Cir. 1998). LaCour and Tobin have not otherwise argued that the indictment alleged insufficient facts for the grand jury to find probable cause. See id.See also United States v. Westry, 524 F.3d 1198, 1212 (11th Cir. 2008) (noting that the government must prove that the defendant “knew the essential objects of the conspiracy, which are either to do an unlawful act or a lawful act by unlawful means”); United States v. Frink, 912 F.2d 1413, 1414, 1417 (11th Cir. 1990) (affirming conviction under Section 846 because evidence was sufficient to show that the defendant “had knowledge of the conspiracy’s unlawful purpose”); United States v. Hirst, 668 F.2d 1180, 1184 (11th Cir. 1982) (upholding jury instruction that required the jury to find that the defendant “willfully became a member of [a drug] conspiracy” under Section 846); United States v. Cardona, 650 F.2d 54, 57 (5th Cir. 1981) (noting that to be convicted under Section 846, a defendant must have entered into an agreement with “the purpose of achieving an unlawful objective”); United States v. DeLucca, 630 F.2d 294, 300 (5th Cir. 1980) (noting that “[t]he essence of a conspiracy is the agreement to act in concert for an illegal purpose” and that as a result, the defendant must have had “the purpose of achieving an illegal objective”). Our decisions are in accord with those of other Circuits. See, e.g., United States v. Layne, 192 F.3d 556, 567 (6th Cir. 1999) (“In a § 846 conspiracy, the government must show the crime of drug conspiracy under Section 846 includes the element that the defendant entered into an agreement with “the purpose of achieving an unlawful objective.” United States v. Cardona, 650 F.2d 54, 57 (5th Cir. 1981). The District Court appears to have realized this as well. In its final charge, the District Court told the jury that under Section 846, the defendants must have joined the agreement “knowing the unlawful purpose of the plan.” Cf. Eleventh Circuit Pattern Jury Instructions (Criminal) 566 (2010) (instructing the jury to determine whether the defendant “knew the unlawful purpose of the plan and willfully joined in it”). Apart from relying on the unpublished decision in Morales De Carty, the District Court, in granting the government’s motion in limine, also cited the Supreme Court’s decision in United States v. Feola, 420 U.S. 671, 686–87, 95 S. willful formation of a conspiracy and the willful membership of the defendant in the conspiracy . . . .”); United States v. Russell, 109 F.3d 1503, 1513 (10th Cir. 1997) (noting that a “necessary” element of a Section 846 conspiracy is that “the defendants willfully became members of [a] conspiracy”); United States v. O’Campo, 973 F.2d 1015, 1019–20 (1st Cir. 1992) (noting that under Section 846, “a party must be shown to have entered knowingly, willfully and intentionally into an agreement”); United States v. Clark, 928 F.2d 639, 641–42 (4th Cir. 1991) (holding that a Section 846 conspiracy entails “the defendant’s wilful joinder” in an agreement); United States v. Story, 891 F.2d 988, 992 (2d Cir. 1989) (holding that a “defendant’s willful joining” of an agreement is an essential element under Section 846); United States v. Burroughs, 876 F.2d 366, 368–70 (5th Cir. 1989) (noting that a Section 846 conspiracy requires willfulness). In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this Court adopted as binding precedent all decisions of the former Fifth Circuit handed down before October 1, 1981. Ct. 1255, 1265 (1975). Separately, the government urges us to rely on United States v. Muncy, 526 F.2d 1261, 1264 (5th Cir. 1976). Both of these cases, however, are inapposite because they address the general conspiracy statute of 18 U.S.C. § 371. See Feola, 420 U.S. at 687, 95 S. Ct. at 1265; Muncy, 526 F.2d at 1264. They do not discuss the drug conspiracy statute at issue here, 21 U.S.C. § 846, and for which there is binding precedent. See, e.g., Westry, 524 F.3d at 1212; Ruiz, 59 F.3d at 1152, 1154; Cardona, 650 F.2d at 57; DeLucca, 630 F.2d at 300. Given that willfulness is an element of a drug conspiracy under Section 846, it is clear that the District Court erred when it granted the government’s motion in limine to exclude evidence of “defendants’ lack of knowledge regarding the illegality of the objectives of the conspiracy, or defendants’ good faith belief about the legality of their conduct.” It is also true that the District Court erred in denying Tobin’s motion to subpoena Bigelow, to the extent that Bigelow’s testimony related to the conspiracy charge against Tobin. The District Courtunderstood that “Bigelow would testify that he told Tobin that [his] conduct was a regulatory matter and did not subject Tobin to criminal charges.” But the District Court concluded that “Tobin’s belief that his conduct was not criminally unlawful” was irrelevant. The District Court did not appear to appreciate the fact that Tobin’s subject with respect to the charge of conspiracy. However, we are mindful that an incorrect evidentiary ruling does not require the reversal of a conviction if it had “no substantial influence on the outcome” of the case. United States v. Hands, 184 F.3d 1322, 1329 (11th Cir.1999). Here, LaCour has not identified any evidence that he would have presented at trial in support of his good-faith belief. Neither has he argued that the government failed to put on sufficient evidence of his intent. LaCour therefore has not met his burden of showing how he was harmed by the District Court’s grant of the government’s motion in limine. Also, the District Court’s denial of Tobin’s motion to subpoena Bigelow had no connection with LaCour. He has thus failed to demonstrate that the District Court’s error requires the reversal of his conviction as to Count 1. Based on our review of the record, we also conclude that the District Court’s errors had “no substantial influence” on the jury’s decision to convict Tobin of the conspiracy charge. Id. Tobin testified that in 2001, when he became involved in Internet medicine with a company called E-Scripts, he met with an 15 The differences in the spelling of this name in this opinion reflect the different spellings 15 for it in Tobin’s brief and the record. Attorney named Tom Goolsby. Tobin told the jury that the meeting with Gools by occurred at his office and that he showed Goolsby the work he was doing at that time. According to Tobin, Goolsby advised him that as a result of his work, he “might be subject to administrative sanctions,” but that he “would incur no criminal liability whatsoever.” Tobin testified that he became involved with Jive Network starting in February 2002. Tobin acknowledged that his previous work with E-Scripts had lingering effects. The Texas Medical Board found that Tobin’s issuance of a prescription for Viagra through E-Scripts violated its regulations, and in November 2002, Tobin entered into a consent order with that board. Tobin testified that he had retained Bigelow as his attorney in connection with the Texas disciplinary action. According to Tobin, “Bigelow would [have] testif[ied] that he told Tobin that [his] conduct was a regulatory matter and did not subject Tobin to criminal charges.” Tobin acknowledged that following the disciplinary action by the Texas Medical Board, he continued to write Internet prescriptions for Jive Network. Tobin conceded that his doing so was in violation of his agreement with the Texas board. In August 2003, Tobin received a notice of charges filed by the North Carolina Medical Board, which also related to his work with E-Scripts. Tobin stated that he continued to write Internet prescriptions after receiving that notice. Notably, Goolsby was called as rebuttal witness by the government. He testified that he met with Tobin once, but that the meeting was at his office, not that of Tobin. He also denied telling Tobin that Tobin’s conduct would not give rise to criminal liability. We agree with Tobin that Bigelow’s testimony, as well as his own testimony about his consultation with Bigelow, would have been “relevant and material” to his case. Indeed, that testimony would have corroborated Tobin’s purported belief that his actions would not lead to criminal prosecution. Nonetheless, we reject the notion that admitting that testimony would have had a “substantial influence” on the ultimate outcome of the case. Hands, 184 F.3d at 1329. “The testimony of a criminal defendant at his own trial is unique and inherently significant.” Nichols v. Butler, 953 F.2d 1550, 1553 (11th Cir. 1992)(en banc). This is particularly true when the subject of the defendant’s testimony is his own state of mind. See United States v. Brown, 53 F.3d 312, 315 (11th Cir.1995). Indeed, “in common experience circumstantial evidence is most likely to be the only evidence of a subjective state of mind.” United States v. Smith, 548 F.2d 545, 549–50 (5th Cir. 1977) (quotation marks omitted). A defendant’s decision to take the stand and testify to his own state of mind provides the rare opportunity for direct evidence to be presented to the jury. But a defendant’s http://www.ca11.uscourts.gov/opinions/ops/200913944.pdf.

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THEReporter says:
September 16, 2012 at 9:16 am


DEA Warning–Buying drugs online may be illegal and dangerous!

Federal law prohibits buying controlled substances such as narcotic pain relievers (e.g., OxyContin®, Vicodin®), sedatives (e.g., Valium®, Xanax®, Ambien®), stimulants (e.g., phentermine, phendimetrazine, Adderall®, Ritalin®) and anabolic steroids (e.g., Winstrol®, Equipoise®) without a valid prescription from your doctor. This means there must be a real doctor-patient relationship, which by most state laws requires a physical examination. Prescriptions written by “cyber doctors” relying on online questionnaires are not legitimate under the law.

Buying controlled substances online without a valid prescription may be punishable by imprisonment under Federal law. Often drugs ordered from rogue websites come from foreign countries. It is a felony to import drugs into the United States and ship to a non-DEA registrant.

Buying drugs online may not be only illegal, but dangerous. The American Medical Association and state boards of medicine and pharmacy have all condemned the practice of cyber doctors issuing online prescriptions as unacceptable medical care. Drugs delivered by rogue websites may be the wrong drugs, adulterated or expired, the wrong dosage strength, or have no dosage directions or warnings.

DEA is targeting rogue online pharmacies for prosecution and shutting down these illegal websites. See the results of one such investigation, Operation Cyber Chase, at http://www.usdoj.gov/dea/pubs/pressrel/pr042005.html.

To report illegal prescription drug sales and/or rogue pharmacies operating on the Internet call the anonymous Pharmaceutical Drug Abuse Hotline: 1-877-RxAbuse (1-877-792-2873)
SFA Reporter says:
October 12, 2012 at 8:57 am


FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT APRIL 12, 2012 JOHN LEY CLERK [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ Nos. 09-13944, 09-13945, 09-13975, 09-14009, 09-14012 ________________________ D. C. Docket No. 08-00118-CR-ORL-22-KRS UNITED STATES OF AMERICA, Plaintiff-Appellee, versus CHRISTOPHER TOBIN, JUDE LACOUR, AKHIL BARANWAL, GEUNNET CHEBSSI, JAMES PICKENS, Defendants-Appellants. ________________________ Appeals from the United States District Court for the Middle District of Florida _________________________ (April 12, 2012) _________________________ Before TJOFLAT, MARTIN, and HILL, Circuit Judges. MARTIN, Circuit Judge: ______________________________________________________________ This prosecution sought to impose criminal liability for the distribution of more than $85 million worth of controlled substances over the Internet from 2002 to 2005. During those years, Jude LaCour owned and directed a company called Jive Network, with various Internet websites to distribute prescription drugs. The government alleged that the websites allowed customers to order controlled substances without submitting any medical records or any prescriptions. The government charged that Christopher Tobin, James Pickens, and Akhil Baranwal, three medical doctors, approved those orders perfunctorily and that Geunnet Chebssi, a pharmacist, dispensed the drugs. Following a jury trial, these defendants were found guilty of multiple charges. On appeal, all five appellants challenge their convictions. LaCour, Baranwal, and Chebssi also contest their sentences. After careful review of the record and the parties’ briefs, and after having had the benefit of oral argument, we affirm the convictions of the five appellants, as well as the sentences of Baranwal and Chebssi. We vacate LaCour’s sentence and remand for re-sentencing before a different district judge. I. FACTS AND PROCEDURAL HISTORY We recite the facts of this case in the light most favorable to the government. United States v. Augustin, 661 F.3d 1105, 1111 (11th Cir. 2011). We will also briefly describe the procedural history. A. FACTS From 2002 to 2005, Jude LaCour owned and operated a company called Jive Network, which used various Internet websites, including hundreds of affiliate websites, to sell prescription drugs. On these websites, customers were able to select the type, quantity, and dosage of drugs that they wanted. To place an order, a customer needed only to complete a brief online questionnaire regarding his or her medical history. Customers were not required to submit prescriptions or to provide medical records. Jive Network did not otherwise seek to verify the identity of those who placed the orders. Jive Network employed physicians to review the orders. The doctors did not conduct a physical examination of the customers or contact the customers’ primary care physician. The only information that the doctors used to decide whether to approve an order was the online questionnaire. When reviewing customer orders, the doctors did not have the option of changing the type, quantity, or dosage of drugs selected by the customer. Once a doctor approved an order, Jive Network’s computer system generated a prescription that included the doctor’s signature. A pharmacist who worked with Jive Network would then fill the prescription and mail the drug to the customer. From 2002 to 2005, Jive Network sold nearly 5 million Schedule III pills and more than 39 million Schedule IV pills. These Schedule III and IV pills accounted for nearly 80 percent of the drugs sold by Jive Network, and they generated an estimated revenue of more than $85 million over the three-year period. At trial, several witnesses testified that they ordered prescription drugs from the Jive Network websites and that, having become addicted to the substances, they would provide false information about their identity in order to obtain the drugs they wanted. Christopher Tobin, Akhil Baranwal, and James Pickens were three of the medical doctors who reviewed and approved the Internet orders for controlled substances. Geunnet Chebssi was a pharmacist who, in turn, filled the orders. During his time with Jive Network, Tobin approved more than 40,000 orders for controlled substances. These orders included one that Lisa Price placed in June 2003 in the name of her daughter, Krista Price, for phendimetrazine (charged in Count 3), as well as one placed by Terry Richards in October 2003 in the name of her son, Tim Richards, for phentermine (Count 11). Tobin spent as little as six seconds reviewing individual customer orders. Baranwal approved more than 61,000 orders. These included one placed by Mary Trerotola for Adipex-P in June 2004 (charged in Count 14), one placed by Kathy Bachand for phentermine in August 2004 (Count 15), as well as one placed by Lisa Price for phendimetrazine in September 2004 (Count 16). Baranwal spent as little as nine seconds reviewing individual customer orders. Pickens approved more than 40,000 orders. These included an order placed by Jamie McCook for Didrex in November 2004 (charged in Count 21). Pickens spent as little as nineteen seconds reviewing individual customer orders. Chebssi filled more than 21,000 prescriptions. These included one for phentermine for Evan Kopald in October 2004 (charged in Count 18). B. PROCEDURAL HISTORY On May 8, 2008, a grand jury returned a seventy-three-count indictment against the appellants, as well as six other defendants. On September 17, 2008, a grand jury returned a fifty-three-count superseding indictment against the same defendants. Under Count 1 of the superseding indictment, all five appellants were charged with conspiracy to distribute Schedule III and Schedule IV controlled substances without valid prescriptions in violation of 21 U.S.C. § 846. Under The six other defendants were Jeffrey LaCour (Jude LaCour’s father), Hudsen Smith, Alexis Roman Torres, Andrew Desonia, Abel Lau, and Margaret McIntosh. These defendants did not proceed to trial, but pleaded guilty. They have no part of this appeal. 5 separate counts, the five appellants were also charged with distribution of Schedule III and Schedule IV controlled substances without valid prescriptions in violation of 21 U.S.C. § 841(a)(1). LaCour was also charged under Count 32 with conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h); under Counts 33–51 with transactional money laundering in violation of 18 U.S.C. § 1957; and under Count 52 with concealment money laundering in violation of 18 U.S.C. § 1956(a)(1)(B)(i). On February 11, 2009, the grand jury returned a fifty-three-count second superseding indictment. This indictment differed from the first superseding indictment in only one respect: in Count 1, which charged the appellants and other defendants with conspiracy to distribute controlled substances without valid prescriptions, the word “willfully” was replaced with the word “intentionally.” On March 31, 2009, the case went to trial. On April 30, 2009, the jury convicted all five remaining defendants, appellants here, of distribution of controlled substances in violation of 21 U.S.C. § 841(a)(1). LaCour and Tobin were convicted of conspiracy to distribute controlled substances in violation of 21 Counts 2–31 each involved an individual instance of distribution. LaCour was charged 2 under all counts. Tobin was charged under Counts 3 and 11; Baranwal was charged under Counts 14, 15, and 16; Pickens was charged under Count 21; and Chebssi was charged under Count 18. U.S.C. § 846, but the three other appellants were acquitted on the conspiracy count. Finally, the jury convicted LaCour of all remaining counts with which he was charged: conspiracy to engage in money laundering in violation of 18 U.S.C. § 1956(h), transactional money laundering in violation of 18 U.S.C. § 1957, and concealment money laundering in violation of 18 U.S.C. § 1956(a)(1)(B)(i). About three months later, the District Court sentenced LaCour to 97 months imprisonment; Tobin to 36 months imprisonment; Baranwal to 27 months imprisonment; Pickens to 21 months imprisonment; and Chebssi to 15 months imprisonment. All five appellants timely appealed. II. STANDARDS OF REVIEW The appellants raise a multitude of issues on appeal. We review de novo the following questions: whether a statute is unconstitutionally vague, United States v. Duran, 596 F.3d 1283, 1290 (11th Cir. 2010); whether the rule of lenity is applicable, see United States v. Murrell, 368 F.3d 1283, 1285 (11th Cir. 2004); whether an indictment sufficiently presents the elements of the charged offense, United States v. Dabbs, 134 F.3d 1071, 1079 (11th Cir. 1998); whether the district court misstated the law in its jury instructions, United States v. Deleveaux, 205 F.3d 1292, 1296 (11th Cir. 2000); whether the evidence is sufficient to support a conviction, United States v. Chirino-Alvarez, 615 F.3d 1344, 1346 (11th Cir.7 2010); whether a prosecutor engaged in misconduct, United States v. Epps, 613 F.3d 1093, 1100 (11th Cir. 2010); and whether a sentence is unconstitutional, United States v. Rozier, 598 F.3d 768, 770 (11th Cir. 2010). In general, we review for abuse of discretion a district court’s grant of a motion in limine, United States v. Harrison, 534 F.3d 1371, 1373 (11th Cir. 2008); a district court’s denial of a motion to subpoena a witness under Federal Rule of Criminal Procedure 17, United States v. Link, 921 F.2d 1523, 1528 (11th Cir.1991); a district court’s evidentiary ruling during trial to which an objection is timely made, United States v. Baker, 432 F.3d 1189, 1202 (11th Cir. 2005); a district court’s limitation on the scope of cross-examination, United States v. Maxwell, 579 F.3d 1282, 1295 (11th Cir. 2009); and a district court’s refusal to give a requested jury instruction, United States v. Svete, 556 F.3d 1157, 1161 (11th Cir. 2009) (en banc). A district court abuses its discretion, however, if it commits an error of law. United States v. Peter, 310 F.3d 709, 711 (11th Cir.2002). We review de novo questions of law. See Murrell, 368 F.3d at 1285. We review for abuse of discretion a district court’s decision to deny a motion to continue or delay a trial, United States v. Graham, 643 F.3d 885, 893 (11th Cir. 2011); a district court’s decision to deny a motion for severance, United States v. Schlei, 122 F.3d 944, 983 (11th Cir. 1997); a district court’s decision to 8 deny a motion for mistrial based on remarks by the district court, United States v. Tampas, 493 F.3d 1291, 1303 (11th Cir. 2007); a district court’s decision to deny a motion for mistrial based on the jury’s exposure to extrinsic influence, United States v. Ronda, 455 F.3d 1273, 1296 n.33 (11th Cir. 2006); a district court’s investigation of alleged juror misconduct, United States v. Yonn, 702 F.2d 1341, 1344–45 (11th Cir. 1983); and the substantive reasonableness of a sentence, United States v. Jordan, 582 F.3d 1239, 1249 (11th Cir. 2009). An unpreserved objection to a district court decision, such as an evidentiary ruling or its response to a jury question, is reviewed for plain error. See Baker, 432 F.3d at 1202; see also United States v. Wright, 392 F.3d 1269, 1279–80 (11th Cir. 2004). A district court’s decision to deliver an Allen charge is reviewed only to assess whether the charge had a coercive impact. United States v. Trujillo, 146 F.3d 838, 846 (11th Cir. 1998). A district court’s participation in plea discussions constitutes plain error that we may address sua sponte. United States v. Corbitt, 996 F.2d 1132, 1134 (11th Cir. 1993). III. DISCUSSION A. RULE OF LENITY AND VAGUENESS The appellants first argue the Controlled Substances Act (CSA) is unconstitutionally vague as applied to them and that, even if not, the rule of lenity should be applied to reverse their convictions. The essence of both arguments is that at the time of their actions, the appellants did not have fair notice that their conduct would be the subject of criminal prosecution. The government disagrees with both arguments, but like the appellants, seems to suggest that we should resolve the constitutional question before addressing the issue of statutory construction. The Supreme Court, however, has recently reiterated that federal courts must first consider a question of statutory interpretation before addressing a vagueness challenge. Skilling v. United States, 130 S. Ct. 2896, 2929 (2010). Thus, we will discuss the argument regarding the rule of lenity before turning to the constitutional question. 1. Rule of Lenity The rule of lenity “ensures fair warning” by “resolving ambiguity in a criminal statute as to apply it only to conduct clearly covered.” United States v. Lanier, 520 U.S. 259, 266, 117 S. Ct. 1219, 1225 (1997). The Supreme Court has cautioned, however, that “[t]he simple existence of some statutory ambiguity . . . is not sufficient to warrant application of that rule.” Muscarello v. United States, 524 U.S. 125, 138, 118 S. Ct. 1911, 1920 (1998). Rather, for the rule to apply, there must be some “grievous ambiguity” in the statute—that is, an ambiguity that remains even after all of the tools of statutory interpretation are brought to bear. Id.; accord United States v. Camacho-Ibarquen, 410 F.3d 1307, 1315 (11th Cir.2005) (“We will apply the rule of lenity only if the provision being construed is still ambiguous after application of normal rules of construction.”). “The first rule in statutory construction is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute. If the statute’s meaning is plain and unambiguous, there is no need for further inquiry.” United States v. Fisher, 289 F.3d 1329, 1337–38 (11th Cir. 2002) (internal quotation marks and citation omitted). If the language is ambiguous, however, we may look to the relevant legislative history. United States v. Dodge, 597 F.3d 1347, 1352 (11th Cir. 2010). We bear in mind that “[s]tatutory construction . . . is a holistic endeavor,” so a statute must be examined as a whole. Id. (quotation marks omitted). As we stated, all five appellants were convicted of distribution of Schedule III and Schedule IV controlled substances in violation of 21 U.S.C. § 841(a)(1). In addition, LaCour and Tobin were convicted of conspiracy to distribute these narcotics in violation of 21 U.S.C. § 846. LaCour and Tobin do not argue that the conspiracy statute is overly vague or that it should be construed narrowly. The key question, then, is the meaning of Section 841(a)(1). Section 841(a)(1) provides that “[e]xcept as authorized by [the CSA], it shall be unlawful for any person knowingly or intentionally . . . to . . . distribute[] or dispense . . . a controlled substance.” 21 U.S.C. § 841(a)(1). Section 829, in turn, authorizes “practitioner[s]” to dispense Schedule III and Schedule IV substances with a “prescription.” Id. § 829(b). Practitioners who seek to dispense controlled substances must register with the Attorney General. Id. § 822(a)(2). The key statutory terms—“controlled substance,” “dispense,” “distribute,” “practitioner”, and “prescription”—are defined either by statute, see id. § 802(6), (10), (11), (21), or by regulation, see 21 C.F.R. § 1306.04(a). In particular, the regulations promulgated by the Attorney General specify that a “prescription” is one that must be “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). The appellants argue that Section 841(a)(1) is ambiguous and, in so doing, advance two different ideas. First, they suggest that at the relevant time—from 2002 to 2005—Section 841(a)(1) was ambiguous about whether it applied to distributions over the Internet. Second, they argue, also with respect to that period of time, that Section 841(a)(1) was ambiguous about whether it required a doctor to have an in-person patient visit before providing a prescription over the Internet. Both of these arguments rest on the fact that in 2008, Congress passed the Ryan Haight Online Pharmacy Consumer Protection Act, Pub. L. No. 110-425, 122 Stat. 4820 (2008). That legislation amended the CSA to explicitly prohibit the distribution of controlled substances over the Internet. See 21 U.S.C. งง 841(h), 829(e)(1). The act also defined the term “valid prescription” in the context of the Internet as one made by “a practitioner who has conducted at least 1 in-person medical evaluation of the patient.” Id. § 829(e)(2)(A)(i). Neither of the appellants’ arguments prevails. First, it is clear that even before the Ryan Haight Act was passed, the CSA criminalized the distribution of controlled substances over the Internet. Indeed, the language of the statute makes no distinction among channels of distribution. See 21 U.S.C. § 841(a)(1). The statute, by its own terms, thus makes it unlawful for a practitioner to distribute a controlled substance without a valid prescription—regardless of the channel of distribution. The appellants find it significant that at the relevant time, the CSA did not specifically mention the Internet. We note, however, that the CSA also did not (and does not) explicitly mention in-person, mail, or phone transactions. See id. But these transactions are covered under the statute. The enactment of the Ryan Haight Act does not compel the conclusion that the CSA had previously been ambiguous about whether it applied to the Internet. We have recognized Congress may amend a statute simply to confirm existing law. United States v. Sepulveda, 115 F.3d 882, 885 n.5 (11th Cir. 1997). “Thus, an amendment to a statute does not necessarily indicate that the unamended statute meant the opposite.” Id. (quotation marks omitted). Congress’s decision to amend the CSA in 2008 is best understood as confirming that under the CSA, it is unlawful to distribute controlled substances without a valid prescription, regardless of whether the prescription is made in person, by mail, by phone, or through the Internet. The appellants’ second argument is more sophisticated, but it also fails. The appellants suggest that because the Ryan Haight Act specifically defines a valid Internet prescription as one that is made following an in-person patient visit, 21 U.S.C. § 829(e)(2)(A)(i), the CSA, prior to its 2008 amendment, was ambiguous as to whether it required an in-person visit. It is true that neither the text of 21 U.S.C. § 841(a)(1) nor the text of 21 C.F.R. § 1306.04 speaks to this specific issue. We therefore take the further step of examining the CSA as a whole, as well as its legislative history. See Dodge, 597 F.3d 1347, 1352. Doing so, we conclude that the appellants’ argument must be rejected insofar as it rests on a fundamental misunderstanding of the structure and operation of the CSA and Congress’s decision to enact the Ryan Haight Act in 2008. The overarching aim of the CSA is to combat drug abuse and to control the legitimate and illegitimate traffic of controlled substances. Gonzales v. Oregon, 546 U.S. 243, 250, 126 S. Ct. 904, 911 (2006). Congress in this respect recognized that practitioners have significant access to controlled substances and that as a result, they have “the greatest opportunity” for diverting drugs to illegitimate use. United States v. Moore, 423 U.S. 122, 135, 96 S. Ct. 335, 342 (1975). Thus, a significant feature of the CSA’s “comprehensive, closed regulatory regime,” Gonzales, 546 U.S. at 250, 126 S. Ct. at 911, is the requirement that practitioners be registered with the Attorney General, see 21 U.S.C. § 822(a)(2). As noted, under the CSA, a practitioner who seeks to dispense controlled substances in accordance with 21 U.S.C. § 829 must be registered with the Attorney General to do so. See 21 U.S.C. § 822(a)(2). Congress was undoubtedly aware that by pulling medical professionals into the statute’s ambit, it could easily “encroach on a state’s traditional authority to regulate medical practices.” Oregon v. Ashcroft, 368 F.3d 1118, 1128 (9th Cir.2004), aff’d sub nom. Gonzales v. Oregon, 546 U.S. 243, 126 S. Ct. 911 (2006). When Congress enacted the CSA, it thus manifested its intent to leave it to the states to define the applicable standards of professional practice. Indeed, Congress directed the Attorney General to register practitioners who were authorized under state law to dispense controlled substances. Pub. L. No. 91-513, tit. II, § 303(f), 84 Stat. 1236, 1255 (1970) (codified as amended at 21 U.S.C. § 823(f)). Congress also provided that the Attorney General could revoke such registration only if, for instance, the practitioner “had his State license or registration suspended, revoked, or denied by competent State authority.” Id. § 304(a)(3) (codified at 21 U.S.C. § 824(a)(3)). In 1984, Congress amended the CSA to authorize the Attorney General to refuse to register, and to revoke the registration of, a practitioner whose registration would be “inconsistent with the public interest.” Comprehensive Crime Control Act of 1984, Pub. L. No. 98-473, งง 511, 512, 98 Stat. 1996, 2073 (1984) (amending 21 U.S.C. งง 823(f), 824(a)). This amendment did expand the scope of the Attorney General’s authority, but Congress did not signal any intent to disregard state standards of medical practice. Indeed, in amending the CSA, Congress observed that “because of a variety of legal, organizational, and resource problems, many states are unable to take effective or prompt action against violating registrants.” S. Rep. No. 98-225, at 223 (1984), reprinted in 1984 U.S.C.C.A.N. 3182, 3448. As a result, “even where there is strong evidence that [practitioners] have significantly abused their authority to dispense controlled substances,” they may “continue to dispense drugs.” Id. Congress’s decision to authorize the Attorney General to refuse to register, or to revoke the registration of a practitioner even when that practitioner maintains his license or registration under state law thus does not reflect an intent to disregard state law. Far from it, Congress was concerned that resource and other constraints limited the ability of the states to enforce their standards of professional practice. See id. The 1984 amendment to the CSA was thus intended to bolster those state standards. The amendment embodies this intent by requiring the Attorney General to consider a practitioner’s compliance with applicable state law, as well as the recommendation of the relevant state licensing board, in determining whether that practitioner’s registration would be “inconsistent with the public interest.” See 21 U.S.C. งง 823(f), 824(a)(4); see also S. Rep. No. 98-225, at 223, reprinted in 1984 U.S.C.C.A.N. at 3449 (providing that the Attorney General should “continue to give deference to the opinions of state licensing authorities”). In light of this legislative scheme, which underscores Congress’s desire to defer to the standards of professional practice set by the states, it is not surprising that when the Supreme Court examined the CSA’s structure and operation in Gonzales v. Oregon, it observed that “the statute manifests no intent [on the part of Congress] to regulate the practice of medicine generally.” 546 U.S. at 270, 126 S. Ct. at 923. The Court explained that this was “understandable” because under our federal system, the “regulation of health and safety is primarily . . . a matter of local concern.” Id. at 270, 271, 126 S. Ct. at 923 (quotation marks omitted). The Court acknowledged that Congress has the authority to set “national standards” of medical practice. Id. at 271, 126 S. Ct. at 923. But the Court concluded that there was “only one area in which Congress [had] set general, uniform standards”—namely, the treatment of narcotic addiction. Id. at 271, 126 S. Ct. at 923–24. (Tellingly, even when Congress made the decision to establish national standards in that specific area, it noted that it was “concerned about the appropriateness of having federal officials determine the appropriate method of the practice of medicine.” H.R. Rep. No. 91-1444, at 14 (1970), reprinted in 1970 U.S.C.C.A.N. 4566, 4581.) About two years after the Supreme Court decided Gonzales, Congress amended the CSA by enacting the Ryan Haight Act, and when it did, it confirmed the Supreme Court’s understanding of the basic structure and operation of the CSA, which reflect “the background principles of our federal system.” Gonzales, 546 U.S. at 274, 126 S. Ct. at 925. Indeed, at the time that Congress was considering the Ryan Haight Act, the states had divergent approaches to whether they required practitioners to conduct an in-person evaluation of a patient before issuing a prescription over the Internet. The House Report observed that “all states allow medications to be purchased via the Internet, but some states do not specifically require in-person consultations for prescriptions.” H.R. Rep. No. 110- 869, at 17 (2008), reprinted in 2009 U.S.C.C.A.N. 2130, 2133. Taking note of this divergence, Congress expressed its intent to replace, in the specific area of Internet prescriptions, the state standards with a national one. See id. Congress’s decision to enact the Ryan Haight Act thus underscores the fact that prior to the CSA’s amendment in 2008, the statute was not ambiguous as to whether an in-person consultation was required for a prescription over the Internet to be valid. Rather, consistent with the statute’s “recognition of the state regulation of the medical profession,” Gonzales, 546 U.S. at 270, 126 S. Ct. at 923, the CSA incorporated the applicable state standard on this issue. See H.R. Rep. No. 110-869, at 17, reprinted in 2009 U.S.C.C.A.N. at 2133. The Ryan Haight Act simply reflected a conscious choice by Congress to displace the different state standards in favor of a single, national one on the specific question of whether an in-person patient visit is required for an Internet prescription to be valid. See id. The appellants cite to a number of sources that predate the Ryan Haight Act in order to suggest that the CSA was previously ambiguous about whether an in person patient visit was required in order for a prescription to be valid. For instance, they point to a 2004 Congressional Research Service report, which stated that it is “not necessarily illegal” for a doctor to write a prescription based solely on an online questionnaire. Jody Feder, Cong. Research Serv., Prescription Drug Importation and Internet Sales: A Legal Overview 18 (2004). In view of the overall structure and operation of the CSA, it is clear that the appellants misunderstand the meaning of these statements. The fact that it was “not necessarily illegal” for physicians to prescribe drugs without seeing a patient in person simply reflects the fact that at the time, the CSA incorporated the state standard at issue, and as Congress recognized, the states had different approaches on this subject. See H.R. Rep. No. 110-869, at 17, reprinted in 2009 U.S.C.C.A.N. at 2133. In sum, the appellants’ argument that the rule of lenity should apply cannot prevail. The appellants stress that prior to the Ryan Haight Act, the CSA was ambiguous about whether it proscribed the distribution of controlled substances over the Internet. But the plain language of the CSA as it then existed makes it clear that the channel through which controlled substances are distributed is of no consequence. The appellants also suggest that prior to its 2008 amendment, the CSA was ambiguous as to whether it required an in-person patient visit for a prescription over the Internet to be valid. To the contrary, Congress’s decision to enact the Ryan Haight Act demonstrates that prior to its amendment, the CSA simply incorporated the applicable state standard on the issue. The Ryan Haight 3 Act did not remove an ambiguity in the CSA. It displaced state standards in favor of a national one in the area of Internet prescriptions. 2. Vagueness The appellants also argue that the CSA is unconstitutionally vague as applied to them. “Void for vagueness means that criminal responsibility should not attach where one could not reasonably understand that his contemplated conduct is proscribed.” Duran, 596 F.3d at1290 (quotation marks omitted). A statute is void for vagueness if it fails to “define the criminal offense [1] with sufficient definiteness that ordinary people can understand what conduct is We agree with the appellants that this is not necessarily a case like Moore, where the 3 conduct that was at issue simply did not meet any applicable state standard of practice. See 423 U.S. at 126, 96 S. Ct. at 338 (noting that the defendant conceded that his conduct “was inconsistent with all accepted methods of treating addicts”). Indeed, during the period of time that is relevant to this case, the states had different approaches on the specific issue of whether an in-person patient consultation was required for a prescription to be issued over the Internet. See H.R. Rep. No. 110-869, at 17, reprinted in 2009 U.S.C.C.A.N. at 2133. Notably the appellants here have not made the argument that their behavior was consistent with the state standard that applied to them or that the District Court should have asked the jury to assess their behavior in light of the applicable state standard. To the extent that a distribution of controlled substance over the Internet took place before the effective date of the Ryan Haight Act, the conduct would be prosecuted under Section 841(a)(1). For any distribution that takes place on or after the effective date of the Act, the prosecution would take place under Section 841(h). prohibited and [2] in a manner that does not encourage arbitrary and discriminatory enforcement.” Id. (quotation marks omitted). In light of our analysis set out above, we must also reject the appellants’ argument that the CSA is unconstitutionally vague as applied to them. In effect, the appellants argue that because prior to its 2008 amendment the CSA did not proscribe specific means of distribution, it is unconstitutionally vague as applied to them. However, we point out again that the CSA did not (and does not) specifically refer to in-person, phone, or mail transactions. Under the appellants’ theory, the CSA would also be unconstitutionally vague as applied to cases where controlled substances are distributed in these ways. The appellants cite no case law to support this anomalous result. The appellants also stress that the CSA did not explicitly indicate that an in-person patient visit was required for a prescription over the Internet to be valid. As we have said, however, the CSA merely incorporated the appropriate state standard on this question. The CSA therefore had “sufficient definiteness.” Id. In summary, the appellants’ argument that the CSA is unconstitutionally vague does not carry the day. Accord United States v. All five appellants also suggest that the District Court should have dismissed the 5 indictment because it fails to set forth the essential elements of the offense under Section 841(a)(1). More specifically, they argue that the indictment does not contain sufficient allegations to show that they acted outside the usual course of professional practice. This argument has no merit. Congress has specified that “[i]t shall not be necessary for the United States to negative any exemption or exception set forth in [the CSA] in any . . . indictment.” 21 Bansal, 663 F.3d 634, 656–57 (3d Cir. 2011) (rejecting similar vagueness challenge); United States v. Birbragher, 603 F.3d 478, 486–89 (8th Cir. 2010) (same). B. STATE OF MIND UNDER SECTION 841(a)(1) The appellants also challenge the way the District Court addressed issues regarding state of mind under Section 841(a)(1). These issues arose in several contexts, including with respect to the government’s motions in limine and the jury instructions. The appellants argue that the District Court should have allowed evidence of their subjective beliefs that they were not violating the law and that they were acting in the course of professional practice. The appellants also contend that the District Court should have instructed the jury to consider their good-faith beliefs. Before going further, it may be useful to again note the legal framework that governs our analysis. As set out above, Section 841(a)(1) provides that “[e]xcept as authorized by [the CSA], it shall be unlawful for any person knowingly or intentionally to . . . distribute[] or dispense . . . a controlled substance.” 21 U.S.C. U.S.C. § 885(a)(1). In United States v. Steele, 147 F.3d 1316 (11th Cir. 1998) (en banc), we recognized that as a result of this statutory directive, an indictment is not insufficient if it does not include the legal assertion that the distribution of controlled substances occurred outside of the “usual course of professional practice.” Id. at 1319–20. From this holding, it follows that neither is an indictment insufficient if it does not contain factual allegations suggesting that a distribution occurred outside of the “usual course of professional practice.” § 841(a)(1). Section 829, in turn, authorizes “practitioner[s]” to dispense Schedule III and Schedule IV substances with a “prescription.” Id. § 829(b). For a “prescription” to be effective, it must be “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). A review of these different provisions makes it clear that the appellants have lumped together two separate issues regarding state of mind. First, there is the question of the requisite mens rea under Section 841(a)(1) itself—that is, what is the state of mind that must accompany the act of distributing or dispensing a controlled substance? Second, there is the viewpoint from which the jury must determine whether a prescription is issued for a “legitimate medical purpose” and in the “usual course of professional practice.” 21 C.F.R. § 1306.04(a). 1. State of Mind Under Section 841(a)(1) Itself The District Court dealt with the first question in various contexts, and its treatment of the issue was consistent throughout the entire case. First, in granting one of the government’s motions in limine, the District Court held that the mens rea under Section 841(a)(1) is “knowing and intentional” and that it was not necessary for the government to prove willfulness. The District Court explained that as a result, evidence that the defendants had a sincere belief that their distribution of controlled substances conformed with the law would be “irrelevant” and therefore not admissible as to the distribution counts. Second, Tobin filed a motion under Federal Rule of Criminal Procedure 17 to subpoena Robert Bigelow. The District Court understood that Bigelow, an attorney, would have testified that he informed Tobin that his conduct “was a regulatory matter and did not subject Tobin to criminal charges.” The District Court concluded that this testimony would not be relevant and therefore denied the motion. Third, Tobin requested that the District Court instruct the jury that “[g]ood faith is a complete defense to the charges in the indictment” and that good faith reliance on advice of counsel precludes a finding of guilt. The District Court declined to give this instruction. Fourth, Chebssi also requested that the District Court provide a “theory of defense” instruction. That instruction states, among other things, that “she, at all times, . . . ha[d] no intention to do what the law forbids. It is her position that her subjective intent was, at all times, . . . to comply with the law to the best of her ability . . . .” The District Court also declined to give this instruction. The District Court’s conclusion that the mens rea under Section 841(a)(1) is knowledge rather than willfulness is correct. Again, Section 841(a)(1) provides that unless otherwise authorized, “it shall be unlawful for any person knowingly or intentionally to . . . distribute[] or dispense . . . a controlled substance.” 21 U.S.C. 841(a)(1). The language of the statute does not refer, in any way, to willfulness, and as a consequence, we have said that the government only needs to prove that the defendant acted knowingly. See, e.g., United States v. Cruz-Valdez, 773 F.2d 1541, 1544 (11th Cir. 1985) (en banc); see also United States v. Faust, 456 F.3d 1342, 1345 (11th Cir. 2006). Indeed, a “statute’s inclusion of the word “As a general matter, when used in the criminal context, a ‘willful’ act is one undertaken with a ‘bad purpose.’” Bryan v. United States, 524 U.S. 184, 191, 118 S. Ct. 1939,1945 (1998). In a case involving willfulness, the government must prove that “the defendant acted with knowledge that his conduct was unlawful.” Id. (quoting Ratzlaf v. United States, 510 U.S. 135, 137, 114 S. Ct. 655, 657 (1994)); see also United States v. Dominguez, 661 F.3d 1051, 1072 (11th Cir. 2011); United States v. Haun, 494 F.3d 1006, 1009 (11th Cir. 2007). By contrast, the term “knowingly” means that “the act was performed voluntarily and intentionally,and not because of a mistake or accident.” United States v. Woodruff, 296 F.3d 1041, 1047 (11th Cir. 2002). This state of mind “merely requires proof of knowledge of the facts that constitute the offense,” not knowledge of the unlawfulness of the action. Bryan, 524 U.S. at 193, 119 S. Ct. at 1946. The Supreme Court has recognized that under some statutes, “willfulness” may entail something more than just a bad purpose or the general awareness that the action is unlawful. Specifically, in the context of “highly technical statutes that present[] the danger of ensnaring individuals engaged in apparently innocent conduct”—most notably, the Internal Revenue Code—the government must show that “the defendant was aware of the specific provision . . . that he was charged with violating.” Id. at 194, 118 S. Ct. at 1946–47 (citing Cheek v. United States, 498 U.S. 192, 201, 111 S. Ct. 604, 610 (1991)) (emphasis added). The appellants have not suggested that this form of willfulness is required under the CSA, and we do not see the CSA as the sort of technical statute that requires the government to prove that “the defendant was aware of the duty at issue.” Cheek, 498 U.S. at 202, 111 S. Ct. at 611. ‘knowingly’ tilts against any possibility that Congress intended any additional scienter requirement.” United States v. Polar, 369 F.3d 1248, 1252 (11th Cir.2004). Because Section 841(a)(1) requires knowledge, and not willfulness, the appellants’ challenges to the rulings of the District Court fail. First, for the distribution counts, the District Court correctly granted the government’s motion in limine to exclude evidence that the defendant subjectively believed that they were not committing the offenses. As the District Court explained, because the mens rea under Section 841(a)(1) consists of knowledge rather than willfulness, any evidence that the defendants had a sincere belief that their distribution of controlled substances was in conformity with the law would be “irrelevant” to the distribution counts and thus inadmissible in that respect. Second, for the same reason, the District Court was correct in denying Tobin’s motion to subpoena Bigelow, insofar as this related to the distribution counts. Bigelow would have testified that he told Tobin that his conduct would have regulatory, but not criminal, implications. To obtain a conviction of Tobin A district court may deny a Rule 17 motion for different reasons, such as the 7 untimeliness of the request or the failure to show indigency. See Link, 921 F.2d at 1528. The District Court’s decision to deny the Rule 17 motion in this case was based solely on the relevance of Bigelow’s proffered testimony. for the distribution counts, however, the government was not required to prove that Tobin had a “bad purpose either to disobey or disregard the law.” United States v. Haun, 494 F.3d 1006, 1010 (11th Cir. 2007). Bigelow’s testimony would therefore have been irrelevant to the distribution counts. Third, because it was not necessary for the government to prove willfulness under Section 841(a)(1), the District Court properly declined to give Tobin’s proposed “theory of defense” jury instructions as to the distribution counts. Specifically, we have recognized that good faith reliance on counsel is a defense only for crimes that require willfulness. See, e.g., United States v. Langston, 590 F.3d 1226, 1235 (11th Cir. 2009) (noting that the defense is “designed to refute the government’s proof that the defendant intended to commit the offense”); United States v. Brown, 983 F.2d 201, 203 (11th Cir. 1993) (recognizing that advice of counsel may be used to “negate the willfulness element”). Fourth, as we noted, Chebssi also requested that the District Court provide a “theory of defense” instruction. That proposed instruction stated, among other things, that “she, at all times, . . . ha[d] no intention to do what the law forbids. It is her position that her subjective intent was, at all times, . . . to comply with the law to the best of her ability.” Again, this instruction assumes that Section 841(a)(1) involves a mens rea of willfulness, and the District Court was correct in rejecting it. 2. State of Mind Under 21 C.F.R. § 1306.04(a) The District Court was not as consistent in its rulings on the question of state of mind under 21 C.F.R. § 1306.04(a). In its order granting one of the government’s motions in limine, the District Court stated that it is “not prohibiting evidence or argument regarding defendants’ good faith with respect to whether they prescribed controlled substances in good faith as part of his/her medical treatment for a patient in the usual course of professional conduct.” However, in its order granting the government’s other motion in limine, the District Court agreed with the government that “the ‘usual course of professional practice’ is [not] a subjective standard.” At the same time, it reiterated that “defendants may offer subjective, good faith evidence of meeting the patient’s needs.” Ultimately, the District Court instructed the jury to consider the question of good faith in determining whether the prescriptions were valid. The District Court said: A controlled substance is prescribed by a physician in the usual course of professional practice and, therefore, lawfully if he or she prescribed the controlled substance in good faith as part of his or her medical treatment for the patient in accordance with the standards of medical practice generally recognized and accepted in the United States. . . . Similarly, . . . a pharmacist is authorized to distribute a controlled substance pursuant to a prescription issued for a legitimate medical purpose by a doctor acting in the course of professional practice. The defendant pharmacist in this case maintains at all times she acted in good faith and in accordance with the standard of pharmaceutical practice generally recognized and accepted in the United States in dispensing medication. 8 The seemingly unsteady course of the District Court no doubt reflects the fact that our precedent has not always been clear in specifying the standpoint from which a jury is to determine whether a prescription was “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). In United States v. Williams, 445 F.3d 1302 (11th Cir. 2006), abrogated on other grounds by United States v. Lewis, 492 F.3d 1219, 1220 (11th Cir. 2007) (en banc), we emphasized that “a physician’s prescribing behavior” must be judged by an “objective standard.” 445 F.3d at 1309. Yet, in the same case, we approved a charge that instructed the jury to consider whether the defendant had a “good faith” belief that he was prescribing medicine in “the usual course of a professional practice.” Id. To the extent that the instruction speaks to “standards of [professional] practice generally recognized and accepted in the United States,” and thus suggests that the CSA imposes national standards of professional practice, it is inconsistent with the Supreme Court’s observation that unless Congress specifies otherwise, the CSA does not establish national standards. Gonzales, 546 U.S. at 269–72, 126 S. Ct. at 922–24. Again, none of the appellants have argued that the District Court should have instructed the jury to assess their behavior in light of the state standards that applied to them. See supra note 3. Similarly, in United States v. Merrill, 513 F.3d 1293 (11th Cir. 2008), we stressed that “[t]he appropriate focus is not on the subjective intent of the doctor.” Id. at 1306. Again, however, we approved a charge that instructed the jury to consider whether the defendant had a “good faith” belief that he was prescribing a controlled substance “in the usual course of professional [practice].” Id. Perhaps muddying the water even further, our decision in Williams cited approvingly to a decision of the Fifth Circuit, which we described as holding that the CSA “provide[s] both subjective and objective measures of the prescribing behavior.” Williams, 445 F.3d at 1310 (citing United States v. Norris, 780 F.2d 1207, 1209 (5th Cir. 1986)). Still, we read our decisions to form a coherent whole. As we have said, the CSA authorizes the distribution of controlled substances by a practitioner so long as the prescription is “issued for a legitimate medical purpose [and] in the usual course of [the practitioner’s] professional practice.” 21 C.F.R. § 1306.04(a). Because the CSA prohibits the distribution of prescription drugs that is not authorized, see 21 U.S.C. § 841(a)(1), a distribution is unlawful if 1) the prescription was not for a “legitimate medical purpose” or 2) the prescription was not made in the “usual course of professional practice.” In Norris, the Fifth Circuit upheld a charge that instructed the jury to consider 1) whether the doctor subjectively believed that the prescription was for a “legitimate medical purpose” and 2) whether, from an objective standpoint, the controlled substances were dispensed in the “usual course of professional practice.” 780 F.2d at 1209. Our decisions in Williams and Merrill follow this framework. In both cases, the defendants argued that whether a prescription is made in the “usual course of professional practice” must be evaluated from a subjective point of view. See Williams, 445 F.3d at 1309; see also Merrill, 513 F.3d at 1305. In Williams, we rejected this argument, citing with approval the Fifth Circuit’s decision in Norris. Williams, 445 F.3d at 1309–10. In turn, in Merrill, we adhered to our decision in Williams. See Merrill, 513 F.3d at 1306. These cases thus stand for the proposition that a jury must determine from an objective standpoint whether a prescription is made in the “usual course of professional practice.” Our decisions in Williams and Merrill to uphold references to “good faith” reflect our alternative holding that even if a subjective standard were to apply, the jury charges in those In other words, even if a physician is shown to have subjectively believed that the 9 prescription was for a legitimate medical purpose, the prescription may still be considered invalid if it was not made in the usual course of professional practice. See United States v. Nelson, 383 F.3d 1227, 1233 (10th Cir. 2004); see also United States v. Armstrong, 550 F.3d 382, 397 (5th Cir. 2008), overruled on other grounds by United States v. Balleza, 613 F.3d 432, 433 n.1 (5th Cir. 2010). cases were adequate. See Williams, 445 F.3d at 1310; see also Merrill, 513 F.3d at 1306. 10 Considering this, the District Court did not commit error. First, the appellants complain that in granting one of the government’s motions in limine, the District Court rejected the notion that a defendant’s subjective belief that he is acting in the “usual course of professional practice” is relevant. The District Court’s conclusion, however, is consistent with our decisions in Williams and Merrill. See Williams, 445 F.3d at 1309; see also Merrill, 513 F.3d at 1305. Second, the appellants suggest that as the trial progressed, the District Court became increasingly reluctant to admit evidence of good faith. To the extent that this is so, its decision, again, was entirely consistent with the holdings of Williams and Merrill, which indicate that whether a prescription is made in the usual course of professional practice is to be determined from an objective, and not subjective, viewpoint. See Williams, 445 F.3d at 1309; see also Merrill, 513 F.3d at 1305. Third, to the extent that the appellants requested that the District Court instruct the jury to consider the defendants’ subjective beliefs that they were acting Chebssi suggests that requiring an objective determination as to whether a practitioner 10 acted outside of the usual course of professional practice will create a “strict liability offense.” This is not a valid concern. The possibility that a practitioner will unknowingly run afoul of the CSA is extremely low. In general, the CSA incorporates the applicable state standard of professional practice, and thus it holds practitioners to standards to which they are already bound. in the usual course of professional practice, the District Court had grounds to reject these requests because they did not provide “a correct statement of the law.” Jordan, 582 F.3d at 1247. Even if we were to accept that the requests did accurately reflect the law, we note that the District Court’s jury instruction did allow the jury to consider the defendants’ subjective beliefs. The District Court’s own charge thus “substantially covered” the appellants’ proposed instructions. Id. at 1248. In fact, the District Court’s instruction on the issue of good faith is 11 essentially the same as those upheld in Williams, see 445 F.3d at 1309, and Merrill, see 513 F.3d at 1306. This being the case, we cannot say that the DistrictCourt erred in any way. C. STATE OF MIND UNDER SECTION 846 LaCour and Tobin were both convicted of Count 1, which charged them with conspiracy to distribute controlled substances in violation of 21 U.S.C. § 846. Like the issue of the state of mind under Section 841(a)(1), the question of the state of mind under Section 846 came up before and during trial. First, in ruling Chebssi argues that the District Court should have further defined the term “good 11 faith.” Given that Chebssi was not entitled to an instruction that even referred to good faith, this argument fails. Baranwal separately complains that while the District Court included a reference to good faith in the conspiracy count, it did not do so with the substantive counts. This Court “determines whether the charges as a whole sufficiently instructed the jury.” United States v. Hooshmand, 931 F.2d 725, 731 (11th Cir. 1991) (emphasis added). This jury could have easily referred back to the District Court’s instruction on the conspiracy count to refresh its understanding of the law that applies to the substantive count. on one of the government’s motions in limine, the District Court held that the offense of conspiracy under Section 846 does not require proof of willfulness. The District Court thus concluded that with respect to the conspiracy count, it was appropriate to exclude evidence that the defendants held a good-faith belief that their actions were lawful. Second, the District Court denied Tobin’s Rule 17 motion to subpoena Bigelow. As we have said, the District Court understood that “Bigelow would testify that he told Tobin that [his] conduct was a regulatory matter and did not subject Tobin to criminal charges.” The District Court concluded that “Tobin’s belief that his conduct was not criminally unlawful” was irrelevant, even as to the conspiracy count. Third and finally, the District Court declined to give Tobin’s proposed jury instruction on advice of counsel as it related to the conspiracy count. The proposed instruction stated, in part, that “[g]ood faith is a complete defense to the charge in the indictment” and that Tobin “would not be acting with ‘intent’ to do wrong if, before taking any action with regard to the alleged offense, [he] consulted in good faith [with] an attorney.” LaCour and Tobin argue that these decisions are incorrect and that, as a consequence, their convictions under Count 1 must be reversed.12 LaCour and Tobin also argue that the District Court erred when “it allowed the Second 12 Superseding Indictment to delete the term ‘willfully’” from Count 1 of the indictment. This contention lacks merit. The Second Superseding Indictment specifically refers to 21 U.S.C. § 1. Exclusion of Evidence As noted, in granting one of the government’s motions in limine, the District Court held that the offense of conspiracy under Section 846 does not require proof of willfulness. In support of this conclusion, the District Court cited the unpublished decision of this Court in United States v. Morales De Carty, 300 F. App’x 820, 828 (11th Cir. 2008). We cannot reconcile that decision, however, with our binding precedent. We have repeatedly recognized that a conviction under Section 846 requires evidence of willfulness on the part of the defendant. See, e.g., United States v. Ruiz, 59 F.3d 1151, 1152, 1154 (11th Cir. 1995) (noting that “willfully” is an element of the conspiracy offense under Section 846). The 13 846. We have previously held that an indictment is sufficient if it “specifically refers to the statute on which the charged [is] based.” United States v. Fern, 155 F.3d 1318, 1325 (11th Cir. 1998). LaCour and Tobin have not otherwise argued that the indictment alleged insufficient facts for the grand jury to find probable cause. See id.See also United States v. Westry, 524 F.3d 1198, 1212 (11th Cir. 2008) (noting that the government must prove that the defendant “knew the essential objects of the conspiracy, which are either to do an unlawful act or a lawful act by unlawful means”); United States v. Frink, 912 F.2d 1413, 1414, 1417 (11th Cir. 1990) (affirming conviction under Section 846 because evidence was sufficient to show that the defendant “had knowledge of the conspiracy’s unlawful purpose”); United States v. Hirst, 668 F.2d 1180, 1184 (11th Cir. 1982) (upholding jury instruction that required the jury to find that the defendant “willfully became a member of [a drug] conspiracy” under Section 846); United States v. Cardona, 650 F.2d 54, 57 (5th Cir. 1981) (noting that to be convicted under Section 846, a defendant must have entered into an agreement with “the purpose of achieving an unlawful objective”); United States v. DeLucca, 630 F.2d 294, 300 (5th Cir. 1980) (noting that “[t]he essence of a conspiracy is the agreement to act in concert for an illegal purpose” and that as a result, the defendant must have had “the purpose of achieving an illegal objective”). Our decisions are in accord with those of other Circuits. See, e.g., United States v. Layne, 192 F.3d 556, 567 (6th Cir. 1999) (“In a § 846 conspiracy, the government must show the crime of drug conspiracy under Section 846 includes the element that the defendant entered into an agreement with “the purpose of achieving an unlawful objective.” United States v. Cardona, 650 F.2d 54, 57 (5th Cir. 1981). The District Court appears to have realized this as well. In its final charge, the District Court told the jury that under Section 846, the defendants must have joined the agreement “knowing the unlawful purpose of the plan.” Cf. Eleventh Circuit Pattern Jury Instructions (Criminal) 566 (2010) (instructing the jury to determine whether the defendant “knew the unlawful purpose of the plan and willfully joined in it”). Apart from relying on the unpublished decision in Morales De Carty, the District Court, in granting the government’s motion in limine, also cited the Supreme Court’s decision in United States v. Feola, 420 U.S. 671, 686–87, 95 S. willful formation of a conspiracy and the willful membership of the defendant in the conspiracy . . . .”); United States v. Russell, 109 F.3d 1503, 1513 (10th Cir. 1997) (noting that a “necessary” element of a Section 846 conspiracy is that “the defendants willfully became members of [a] conspiracy”); United States v. O’Campo, 973 F.2d 1015, 1019–20 (1st Cir. 1992) (noting that under Section 846, “a party must be shown to have entered knowingly, willfully and intentionally into an agreement”); United States v. Clark, 928 F.2d 639, 641–42 (4th Cir. 1991) (holding that a Section 846 conspiracy entails “the defendant’s wilful joinder” in an agreement); United States v. Story, 891 F.2d 988, 992 (2d Cir. 1989) (holding that a “defendant’s willful joining” of an agreement is an essential element under Section 846); United States v. Burroughs, 876 F.2d 366, 368–70 (5th Cir. 1989) (noting that a Section 846 conspiracy requires willfulness). In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this Court adopted as binding precedent all decisions of the former Fifth Circuit handed down before October 1, 1981. Ct. 1255, 1265 (1975). Separately, the government urges us to rely on United States v. Muncy, 526 F.2d 1261, 1264 (5th Cir. 1976). Both of these cases, however, are inapposite because they address the general conspiracy statute of 18 U.S.C. § 371. See Feola, 420 U.S. at 687, 95 S. Ct. at 1265; Muncy, 526 F.2d at 1264. They do not discuss the drug conspiracy statute at issue here, 21 U.S.C. § 846, and for which there is binding precedent. See, e.g., Westry, 524 F.3d at 1212; Ruiz, 59 F.3d at 1152, 1154; Cardona, 650 F.2d at 57; DeLucca, 630 F.2d at 300. Given that willfulness is an element of a drug conspiracy under Section 846, it is clear that the District Court erred when it granted the government’s motion in limine to exclude evidence of “defendants’ lack of knowledge regarding the illegality of the objectives of the conspiracy, or defendants’ good faith belief about the legality of their conduct.” It is also true that the District Court erred in denying Tobin’s motion to subpoena Bigelow, to the extent that Bigelow’s testimony related to the conspiracy charge against Tobin. The District Courtunderstood that “Bigelow would testify that he told Tobin that [his] conduct was a regulatory matter and did not subject Tobin to criminal charges.” But the District Court concluded that “Tobin’s belief that his conduct was not criminally unlawful” was irrelevant. The District Court did not appear to appreciate the fact that Tobin’s subject with respect to the charge of conspiracy. However, we are mindful that an incorrect evidentiary ruling does not require the reversal of a conviction if it had “no substantial influence on the outcome” of the case. United States v. Hands, 184 F.3d 1322, 1329 (11th Cir.1999). Here, LaCour has not identified any evidence that he would have presented at trial in support of his good-faith belief. Neither has he argued that the government failed to put on sufficient evidence of his intent. LaCour therefore has not met his burden of showing how he was harmed by the District Court’s grant of the government’s motion in limine. Also, the District Court’s denial of Tobin’s motion to subpoena Bigelow had no connection with LaCour. He has thus failed to demonstrate that the District Court’s error requires the reversal of his conviction as to Count 1. Based on our review of the record, we also conclude that the District Court’s errors had “no substantial influence” on the jury’s decision to convict Tobin of the conspiracy charge. Id. Tobin testified that in 2001, when he became involved in Internet medicine with a company called E-Scripts, he met with an 15 The differences in the spelling of this name in this opinion reflect the different spellings 15 for it in Tobin’s brief and the record. Attorney named Tom Goolsby. Tobin told the jury that the meeting with Gools by occurred at his office and that he showed Goolsby the work he was doing at that time. According to Tobin, Goolsby advised him that as a result of his work, he “might be subject to administrative sanctions,” but that he “would incur no criminal liability whatsoever.” Tobin testified that he became involved with Jive Network starting in February 2002. Tobin acknowledged that his previous work with E-Scripts had lingering effects. The Texas Medical Board found that Tobin’s issuance of a prescription for Viagra through E-Scripts violated its regulations, and in November 2002, Tobin entered into a consent order with that board. Tobin testified that he had retained Bigelow as his attorney in connection with the Texas disciplinary action. According to Tobin, “Bigelow would [have] testif[ied] that he told Tobin that [his] conduct was a regulatory matter and did not subject Tobin to criminal charges.” Tobin acknowledged that following the disciplinary action by the Texas Medical Board, he continued to write Internet prescriptions for Jive Network. Tobin conceded that his doing so was in violation of his agreement with the Texas board. In August 2003, Tobin received a notice of charges filed by the North Carolina Medical Board, which also related to his work with E-Scripts. Tobin stated that he continued to write Internet prescriptions after receiving that notice. Notably, Goolsby was called as rebuttal witness by the government. He testified that he met with Tobin once, but that the meeting was at his office, not that of Tobin. He also denied telling Tobin that Tobin’s conduct would not give rise to criminal liability. We agree with Tobin that Bigelow’s testimony, as well as his own testimony about his consultation with Bigelow, would have been “relevant and material” to his case. Indeed, that testimony would have corroborated Tobin’s purported belief that his actions would not lead to criminal prosecution. Nonetheless, we reject the notion that admitting that testimony would have had a “substantial influence” on the ultimate outcome of the case. Hands, 184 F.3d at 1329. “The testimony of a criminal defendant at his own trial is unique and inherently significant.” Nichols v. Butler, 953 F.2d 1550, 1553 (11th Cir. 1992)(en banc). This is particularly true when the subject of the defendant’s testimony is his own state of mind. See United States v. Brown, 53 F.3d 312, 315 (11th Cir.1995). Indeed, “in common experience circumstantial evidence is most likely to be the only evidence of a subjective state of mind.” United States v. Smith, 548 F.2d 545, 549–50 (5th Cir. 1977) (quotation marks omitted). A defendant’s decision to take the stand and testify to his own state of mind provides the rare opportunity for direct evidence to be presented to the jury. But a defendant’s http://www.ca11.uscourts.gov/opinions/ops/200913944.pdf.
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