United States Court of Appeals Fifth Circuit F I L E D REVISED NOVEMBER 8, 2005 UNITED STATES COURT OF APPEALS October 25, 2005 For the Fifth Circuit Charles R. Fulbruge III Clerk
No. 04-10364
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
THOMAS CAMPBELL BUTLER, MD,
Defendant-Appellant.
Appeal from the United States District Court For the Northern District of Texas, Lubbock Division
Before WIENER, DeMOSS, and PRADO, Circuit Judges.
PER CURIAM:
Appellant Dr. Thomas Butler was convicted on 47 of 69 counts
of various criminal activity relating to work he performed as a
medical researcher at the Texas Tech University Health Sciences
Center (“HSC”). Of these 47 counts, Butler was convicted of 44
counts of contract-related crimes, including theft, fraud,
embezzlement, mail fraud, and wire fraud, (collectively, the
“Contract Counts”). Butler was also convicted of three counts
relating to the transportation of human plague bacteria (“yersinia
pestis” or “YP”), including the illegal exportation of YP to
Tanzania, the illegal transportation of hazardous materials, and making a false statement on the waybill accompanying the YP vials
shipped to Tanzania, (collectively, the “Plague Counts”). The
district court sentenced Butler to 24 months’ imprisonment followed
by 3 years’ supervised release, a $15,000 fine, and ordered him to
pay restitution to HSC in the amount of $38,675. Butler timely
filed the instant appeal. For the reasons discussed below, we
affirm.
BACKGROUND AND PROCEDURAL HISTORY
Butler was a professor and Chief of Infectious Diseases in
HSC’s Internal Medicine Department since 1987. As part of Butler’s
pay structure, a percentage of his income was provided by the State
of Texas while the remainder came from the Medical Practice Income
Plan (“MPIP”). Under MPIP, a doctor earned money by seeing
patients, receiving research grants, or conducting clinical studies
under the auspices of HSC. The monies received from the patients
a doctor treated and the funds paid out for the research/studies
was remitted to HSC. Part of these monies paid for HSC’s overhead
costs and other expenses while another part was paid out as the
non-state portion of the doctor’s income. Any remaining funds from
a clinical study was transferred to a developmental account for the
researcher’s department or division. The money in this account was
earmarked for expenses such as professional dues and business
travel, none of which was related to any particular project.
When a researcher at HSC was in a position to obtain a
2 research grant or conduct a clinical study, it was required that
the accompanying documentation be submitted to the institution for
approval. Moreover, any monies paid out as a result of the
research grant or clinical study were required to be paid directly
to the institution. Consulting contracts, however, received
different treatment from research grants or clinical studies.
Specifically, a consulting contract was viewed by HSC as a means
for a doctor to sell his or her expertise or advice directly to a
third party, such as in designing a drug study. The consulting
would not involve patient care or patient safety issues, and the
consultant would not be using HSC’s resources such as labs and
personnel. Because of these considerations, consulting contracts
were permissible without HSC’s financial involvement or approval,
unlike contracts covering clinical studies.
Between 1998 and 2001, Butler entered into several clinical
study contracts with two different pharmaceutical companies,
Pharmacia and Chiron. The first contract entered into with
Pharmacia occurred in March 1998. Under this contract, Pharmacia
agreed to pay HSC $2,400 for each patient enrolled in the clinical
study. Apparently unbeknownst to HSC, however, Pharmacia and
Butler entered into another “shadow” or “split” contract that
provided Butler with an additional $2,400 per patient enrolled in
the same study. A similar contract was entered into between
Pharmacia and Butler in the spring of 2000 and again in the fall of
2000.
3 With respect to the contract in the fall of 2000, there was
another HSC researcher, Dr. Casner, who was working on the same
study as Butler. Dr. Casner’s contract with Pharmacia was not
split, and therefore it appeared that he had a budget twice the
size of Butler’s. A representative with HSC who was aware of Dr.
Casner’s contract, contacted Butler to inform him that she could
get Butler a bigger budget. Butler allegedly refused the offer and
informed the HSC representative that he would remain in charge of
negotiating his own contracts. Butler had also negotiated two
similar contracts with Chiron (another pharmaceutical company),
using the contracts with Pharmacia as a template. The contracts
with Chiron involved drug studies that were conducted in February
1999 and March 2000.1 Butler received payments under the contracts
with Pharmacia and Chiron until August 2001.
The existence of the shadow contracts first came to the
attention of HSC in July 2002, when an HSC representative learned
from a Pharmacia representative that Butler was getting one-half of
the money from the Pharmacia studies, while HSC received the other
half. HSC initiated a preliminary investigation into the split
contracts that continued until January 9, 2003, when HSC informed
Butler by letter that an additional investigation by authorities
charged with compliance issues was to begin. In the letter, HSC
sought a response from Butler by no later than January 21, 2003.
1 By all accounts, Butler was the only researcher to have split contracts with these pharmaceutical companies.
4 For the reasons discussed below, HSC never received the requested
response.
In addition to his work at HSC in Texas, Butler conducted
plague research in Tanzania in 2001.2 Then, in April 2002, Butler
returned to Tanzania where, for approximately 10 days, he worked on
research of plague in human patients at clinics there. Part of his
research involved personally culturing and subculturing specimens
that he planned to bring back to the United States for additional
studies.
Having returned to the United States with the yersinia pestis
cultures, Butler continued his research. Then, on January 13,
2003, four days after receiving the letter from HSC auditors
warning of the impending investigation into the alleged shadow
contracts, Butler reported that 30 vials of the yersinia pestis
were missing from his HSC laboratory in Lubbock. The FBI was
immediately notified and within hours descended upon Lubbock, where
Butler was questioned. Eventually, Butler revealed that the
yersinia pestis was not actually missing, but that he had destroyed
the vials accidentally.
In April 2003, a grand jury returned a 15-count indictment
charging Butler with various crimes relating to his transporting of
yersinia pestis, the providing of false statements to FBI agents
2 This work was reportedly encouraged by the Food and Drug Administration (the “FDA”), the Center for Disease Control and Prevention (“CDC”), and the United States Army.
5 regarding yersinia pestis, and a tax crime. A superceding
indictment was returned by the grand jury in August 2003, in which
Butler was charged with 54 additional criminal counts, including
mail fraud, wire fraud, and embezzlement that arose out of Butler’s
agreements with the pharmaceutical companies and the Food and Drug
Administration (the “FDA”). Butler filed a motion seeking to sever
the Contract and Plague Counts, which the district court denied.
After a three-week trial in November 2003, the jury returned a
mixed-verdict against Butler, finding him guilty on most of the
Contract Counts and not guilty on most of the Plague Counts and the
tax count. On March 10, 2004, the district court sentenced Butler
to 24 months’ imprisonment, three years’ supervised release,
$15,000 in fines, and a $4,700 special assessment. Butler was also
ordered to pay HSC restitution in the amount of $38,675. Butler
timely filed the instant appeal.
DISCUSSION
I. Whether the district court erred by not severing the Contract Counts and the Plague Counts.
On appeal, Butler argues the Federal Rules of Criminal
Procedure and this Circuit’s case law prohibit the joinder of
unrelated criminal categories charged; here, the Contract Counts
and the Plague Counts. Butler contends that trying all the counts
together caused him prejudice. Conversely, the Government
maintains that joinder was proper because the charges in the
superceding indictment were linked as transactions within a common
6 scheme or plan.
We review a district court’s denial of a motion to sever for
an abuse of discretion. United States v. Booker, 334 F.3d 406, 415
(5th Cir. 2003). Whether the initial joinder of charges was
improper under Rule 8 of the Federal Rules of Criminal Procedure is
judged according to the allegations in the superceding indictment.
See United States v. Kaufman, 858 F.2d 994, 1003 (5th Cir. 1988).
Specifically, Rule 8(a) provides that:
The indictment or information may charge a defendant in separate counts with 2 or more offenses if the offenses charged . . . are of the same or similar character, or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan.
FED. R. CRIM. P. 8(a).
Butler argues that the superceding indictment alleges no
connection between the groups of allegations, or any rationale for
suggesting that the Contract Counts were based on the same conduct
or motivation as the Plague Counts. Butler maintains the two sets
of counts are neither connected nor constitute parts of a common
scheme or plan. In support of his contention, Butler cites to
several cases in which this Court and some district courts have
identified improperly joined charges. See, e.g., United States v.
Diaz-Munoz, 632 F.2d 1330 (5th Cir. 1980); United States v. Lynch,
198 F. Supp. 2d 827 (N.D. Tex. 2001); United States v. Braig, 702
F. Supp. 547 (E.D. Pa. 1989). None of these cases, however, are
particularly instructive. The counts involved in each of the cases
7 cited by Butler were not tied in any meaningful way to each other.
In contrast, the superceding indictment in the instant case
sufficiently sets forth how Butler’s handling of plague bacteria as
part of his research efforts was ultimately related to his scheme
to defraud HSC by concealing both his contracts with the FDA and
the split contracts Butler maintained with the two pharmaceutical
companies.
As a preliminary matter, we broadly construe Rule 8 in favor
of initial joinder. United States v. Fortenberry, 914 F.2d 671,
675 (5th Cir. 1990) (citation omitted). This Circuit has also
recognized that the transaction requirement in Rule 8 is flexible,
holding that such a transaction “may comprehend a series of many
occurrences, depending not so much upon the immediateness of their
connection as upon their logical relationship.” Id. (quoting
United States v. Park, 531 F.2d 754, 761 (5th Cir. 1976)).
The superceding indictment sets out such a relationship,
identifying HSC’s need to generate funding through studies
conducted by its researchers, including Butler. The indictment
specifically outlines Butler’s research into non-plague-related
diseases for Pharmacia and Chiron and his plague-related research
for the FDA.3 The indictment’s description of Butler’s scheme to
defraud explained how he failed to disclose material facts to HSC
3 The Government also points out that the superceding indictment reveals how the success of Butler’s efforts to secure his clinical study contracts depended in large part on his plague research.
8 regarding not only the Pharmacia and Chiron contracts, but also the
plague-related contracts with the FDA.
The introduction to the superceding indictment details how the
FDA offered research opportunities to medical professionals
regarding “the development and review of medications for the
prevention and treatment of illness that could be caused by
terrorists using biological agents.” The FDA subsequently
purchased Butler’s professional service, and specifically,
according to the indictment, “for the results of experimental
research regarding the post-antibiotic effect of drugs on the
microorganism Yersinia pestis,” and later “to provide experimental
results from [Butler]’s laboratory about the post-antibiotic effect
of drugs on various strains of Yersinia pestis isolated from plague
patients in Tanzania.”
Meanwhile, the actual FDA fraud counts charged Butler with
attempting to conceal the existence of his FDA contracts from HSC’s
administrative review and approval process. Butler was alleged to
have subsequently obtained payments from the FDA without
distributing any monies therefrom to HSC in accordance with HSC’s
relevant policies for doing so.
The superceding indictment clearly sets forth an alleged
common scheme that connects both Butler’s plague research and the
Pharmacia/Chiron pharmaceutical contracts to the FDA fraud counts.
In doing so, the superceding indictment, on its face, creates an
9 overlap that logically intertwines the Contract Counts with the
Plague Counts.
Even if this panel were to question the initial joinder of the
Contract Counts and the Plague Counts, Butler must still
demonstrate that he was prejudiced as a result. See United States
v. Bieganowski, 313 F.3d 264, 287 (5th Cir. 2002). A district
court should conduct separate trials if it appears that the
defendant will be prejudiced by the joinder of offenses. Id. “To
demonstrate reversible error, even where initial joinder was
improper, a defendant must show clear, specific and compelling
prejudice that resulted in an unfair trial.” United States v.
Simmons, 374 F.3d 313, 317 (5th Cir. 2004).
Butler maintains that the number of counts for which he was
charged was prejudicial in and of itself. Citing Drew v. United
States, 331 F.2d 85, 88 (D.C. Cir. 1964). This Court has, however,
specifically rejected that assertion. United States v. Fagan, 821
F.2d 1002, 1007 (5th Cir. 1987) (noting that being tried on
multiple counts, “standing alone is not grounds for a new trial”).
We have also determined that any possible prejudice can be cured by
proper jury instructions administered by the district court.
United States v. Bullock, 71 F.3d 171, 175 (5th Cir. 1995). In
this case, the district court instructed the jury as follows:
A separate crime is charged in each count of the indictment. Each count, and the evidence pertaining to it, should be considered separately. The fact that you may find the defendant guilty as to one of the crimes charged should not control your verdict as to any other
10 crime.
The jury acquitted Butler on ten of the fraud counts, nine of
the illegal transportation of plague counts, both of the counts
charging Butler with making false statements to FBI agents, and the
one tax count. Such a verdict reveals that the jury was able to
follow proper jury instructions, separately consider each charge
independently, and avoid being swayed or confused by the sheer
number of counts for which Butler was indicted. Because Butler has
not established that the initial joinder was improper, nor that he
was prejudiced by such joinder, the district court was within its
discretion when it denied Butler’s motion to sever the Contract and
II. Whether the district court erred by refusing to allow Butler to conduct discovery relating to foreign witnesses.
Butler argues the district court erred when it denied his
request to take depositions of four witnesses in Tanzania who
allegedly had direct knowledge of his research in that country.
We review a district court’s discovery rulings for an abuse of
discretion. Wiwa v. Royal Dutch Petroleum Co., 392 F.3d 812, 817
(5th Cir. 2004). We will affirm unless the rulings are arbitrary
or clearly unreasonable. Id. (citing Moore v. Willis Indep. Sch.
Dist., 233 F.3d 871, 876 (5th Cir. 2000) (internal quotations
omitted)). A court may grant a motion seeking to depose a
prospective witness based only on “exceptional circumstances and in
the interest of justice.” FED. R. CRIM. P. 15(a)(1). Butler has not
11 demonstrated exceptional circumstances or that taking these
particular depositions would serve the interest of justice.
Butler had been under indictment, including charges of which
the foreign witnesses would purportedly have had material
knowledge, since April 2003. In May 2003 and again in August 2003,
both parties sought a continuance of the trial, with Butler
indicating in both instances the need to conduct discovery from
these Tanzanian witnesses. Both of these motions were granted.
Then, on August 25, 2003, Butler again sought leave to take the
depositions of the foreign witnesses. The district court denied
the motion on September 11, 2003, stating that the motion was
“untimely and dilatory” in nature. The district court also noted
that the evidence sought was not material and the lengthy and
indeterminate continuance that would have resulted was
impracticable.
Essentially, Butler maintains the foreign witnesses would have
supported Butler’s contention at trial that he had a good faith
belief that he was in compliance with the rules of both U.S. and
Tanzanian requirements for shipping yersinia pestis. As the
Government points out, however, this information would have had
little material value as to Butler’s convictions for mailing the
plague samples from the United States to Tanzania. Butler was
convicted for violating U.S. export rules, not rules promulgated in
Tanzania for exporting items out of that country. In addition, the
12 jury acquitted Butler of all charges relating to the transporting
of yersinia pestis from Tanzania to the United States — the only
relevant information of which the Tanzanian witnesses presumably
would have had knowledge.
Based on the substance of the testimony Butler suggests the
foreign witnesses would have provided, which materially relates to
counts on which Butler was acquitted, the district court did not
abuse its discretion when it denied Butler’s motion.
III. Whether the district court erred in quashing Butler’s pretrial subpoena requesting the production of documents from HSC.
Butler argues the district court erred by refusing his request
to obtain from HSC all emails relating to him. Specifically,
Butler contends that because the Government placed Butler’s
dealings and relations with HSC administrators at the heart of its
prosecution, it was an abuse of discretion for the district court
not to allow Butler the opportunity to pursue his theory that there
existed an animosity between he and HSC officials and that the
testifying HSC officials had acted in an improper and retaliatory
manner toward Butler.
According to the Government, Butler’s subpoena requested
documentation of any kind from September 2003 dating back to 1986
in 28 different subject matter categories. These requested
documents included compensation agreements and personnel files for
15 different people; financial audits on Butler or his studies;
internal correspondence regarding Butler; Butler’s performance
13 reviews; Butler’s contributions to HSC; a grievance Butler filed
against an HSC administrator; correspondence on Butler’s grant
funds, financial arrangements, audits, and retaliation claims;
“correspondence on communications”; and correspondence between
criminal agents and HSC.4
The district court determined that Butler’s subpoena was “too
broad and vague” and amounted to “a fishing expedition and an
attempt to conduct general discovery as against the Health Sciences
Center.” The court concluded that the subpoena was therefore
“oppressive and unreasonable and must be quashed in its entirety.”
We review a district court’s granting of a motion to quash a
subpoena for an abuse of discretion. United States v. Loe, 248
F.3d 449, 466 (5th Cir. 2001). An order quashing a subpoena is
proper if “compliance would be unreasonable or oppressive.” FED.
R. CRIM. P. 17(c)(2). This Court has previously determined that a
party seeking such a subpoena must establish: “(1) the subpoenaed
document is relevant, (2) it is admissible, and (3) that it has
been requested with adequate specificity.” Loe, 248 F.3d at 466
(citation omitted). Based on a review of Butler’s subpoena motion,
Butler has failed to satisfy two of the three required conditions.
First, the breadth of subject matter that Butler sought failed to
4 The Government uses as further evidence of the broadness of Butler’s subpoena motion his request for all correspondence amongst Frank Coleman, Glenda Helfrich, and Pat Campbell. Ms. Helfrich was an attorney for HSC and thus many, if not all, of her communications would have likely been privileged.
14 evoke any real relevance to the particular counts for which he was
charged, and second, many of the requested documentation clearly
lacked the requisite specificity. Accordingly, the district court
did not abuse its discretion when it quashed Butler’s subpoena.
IV. Whether the district court erred by allowing into evidence HSC policies and procedures relating to researchers’ contracts with outside entities, including pharmaceutical companies.
Butler argues one of the controversies at trial involved
identifying what contracts between HSC researchers and outside
entities were covered by HSC’s policies requiring researchers to
pay HSC a percentage of monies received under those particular
contracts. Butler maintains the district court erred when it
denied his motion in limine that sought to bar the use of HSC’s
shared fee policies as evidence of Butler’s alleged criminal
conduct.
Butler contends that United States v. Christo, 614 F.2d 486
(5th Cir. 1980), which held that civil regulations cannot be used
to establish criminal liability, bars the Government’s use of HSC
policies as a basis for finding criminal liability against Butler
on the Contract Counts. Id. at 491-92. Butler suggests that the
Government’s violation of the principle enunciated in Christo is
made even more egregious based on the fact that the Government used
school policies to establish liability — a less formal and
authoritative source than the prohibited civil regulations.
Arguing that the Government blurred the distinction between
15 criminal law and HSC policies, Butler asserts that the testimony
elicited from HSC officials suggested it was Butler’s failure to
comply with HSC policies that would ultimately be determinative of
Butler’s guilt or innocence. Lastly, Butler cites Ninth Circuit
case law for his contention that jury instructions, such as the one
given in this case, cannot cure a Christo violation. See United
States v. Wolf, 820 F.2d 1499 (9th Cir. 1987). Conversely, the
Government maintains that it never presented to the jury a theory
that violations of HSC policies automatically rendered Butler’s
conduct criminally fraudulent. Instead, argues the Government, it
was saddled with the burden of establishing that Butler acted
intentionally and willfully in order to prove the fraud counts and
simply used the policies to demonstrate such intent.
We review a district court’s evidentiary rulings for an abuse
of discretion. Kelly v. Boeing Petroleum Servs., Inc., 61 F.3d
350, 356 (5th Cir. 1995). Any erroneous evidentiary ruling is
reversible error only if it affects a party’s substantial rights.
Id. at 361. In Christo, the case was remanded in large part
because of the instruction to the jury that the legality of certain
banking overdrafts had to be viewed in light of the civil banking
restrictions on loans to officers. 614 F.2d at 491. This Court
found problematic what it saw as the prosecution attempting to
bootstrap a violation of a civil regulation into a criminal felony.
Id. at 492. In this case, the Government persuasively argues that
the testimony allowed by the district court was introduced to
16 explain that HSC’s policies simply governed Butler’s conduct. The
Government cites to two instances in the record where HSC
officials, when asked by the defense whether violating the policies
was itself a crime, both agreed that it was not. The introduction
of the policies was for the purpose of establishing Butler’s
knowledge of the policies and his willfulness thereafter in
defrauding HSC.
Moreover, the district court gave the jury a limiting
instruction in which the court cautioned:
You have heard testimony that Dr. Butler may have violated TTUHSC’s Operating Policies and Procedures (“TTUHSC’s Policies”). A violation of TTUHSC’s Policies in itself is not a criminal offense.
The government must prove all of the elements of the crimes charged, beyond a reasonable doubt. For example, even if you assume that Dr. Butler violated TTUHSC’s Policies, the fact that TTUHSC’s Policies were not followed does not necessarily mean that Dr. Butler possessed the requisite criminal intent to commit the offenses charged or that the government has proved the elements of the alleged crimes. If you find beyond a reasonable doubt from the other evidence in this case that Dr. Butler did commit the acts charged in the Indictment, then you may consider the evidence of a violation of TTUHSC’s Policies for the limited purpose of determining whether Dr. Butler had the state of mind or intent necessary to commit the crimes charged in the Indictment.
This Court has previously determined that this type of
limiting instruction is appropriate under these circumstances. In
United States v. Brechtel, 997 F.2d 1108 (5th Cir. 1993), this
Court stated that “we and our colleagues in other circuits have
recognized the value of limiting instructions in attenuating any
17 improper effect of such evidence when used for a permissible
purpose.” Id. at 1115 (citing United States v. Cordell, 912 F.2d
769, 777 (5th Cir. 1990); United States v. McElroy, 910 F.2d 1016,
1023-24 (2d Cir. 1990); United States v. Smith, 891 F.2d 703, 710
(9th Cir. 1989); United States v. Stefan, 784 F.2d 1093, 1098 (11th
Cir. 1986)). The instruction issued by the district court clearly
sets forth that any evidentiary reference to HSC policies made
during the trial was for the limited purpose of establishing
Butler’s alleged criminal intent. Accordingly, even if we were to
identify any error in the district court’s decision to admit these
policies into evidence, this particular instruction would cure any
such error.
In sum, because the HSC policies were admitted for the limited
purpose of establishing criminal intent on the part of Butler, and
because the district court issued a comprehensive limiting
instruction further clarifying the purpose of that evidence, we
find no reversible error.
V. Whether the Government presented sufficient evidence as to the Contract and Plague Counts.
Butler next argues there was insufficient evidence to support
his conviction on the Contract Counts because the HSC policies were
vague, thus casting doubt on the mens rea element of the crime.
Butler also contends the Government failed to prove beyond a
reasonable doubt that he willfully violated United States export
control laws or hazardous material regulations.
18 We review a challenge to the sufficiency of the evidence in a
criminal case to evaluate “whether a reasonable trier of fact could
have found that the evidence established guilt beyond a reasonable
doubt.” Bieganowski, 313 F.3d at 275 (citation and internal
quotations omitted). The jury retains the sole responsibility for
determining the weight and credibility of the evidence. United
States v. Jaramillo, 42 F.3d 920, 923 (5th Cir. 1995). In
evaluating the evidence, we view all evidence and all reasonable
inferences drawn from it in the light most favorable to the
government. Bieganowski, 313 F.3d at 275. “It is not necessary
that the evidence exclude every reasonable hypothesis of innocence
or be wholly inconsistent with every conclusion except that of
guilt.” Id.
As to Butler’s argument regarding the Contract Counts, and
more specifically his contention that the HSC policies were vague
and therefore subject to misinterpretation, there was evidence
introduced at trial that HSC reminded Butler by memo six times that
he was not to sign contracts with grantors for work done at HSC.
The Government contends these memos prove Butler’s state of mind
regardless of whether he reviewed or understood HSC’s posted
policies. Butler also argues that he thought the agreements he
entered into with Pharmacia and Chiron were consulting contracts.5
5 As stated previously, both parties stipulate that pure consulting contracts were not subject to the restrictions placed on clinical studies, research grants, or any other type of venture that involved use of HSC’s resources.
19 The Government points out, however, that it introduced at trial:
(1) language in these agreements between Butler and the
pharmaceutical companies indicating that the studies were for
clinical work (and thus subject to HSC’s policies); (2) differences
between the agreements and other documents entered into evidence
entitled “Consulting Agreements”; and (3) testimony from the
pharmaceutical representatives themselves, who characterized the
split contracts as clinical study agreements. Based on this
evidence alone, the Government presented sufficient evidence of
Butler’s intent to defraud HSC such that a reasonable trier of fact
could have found that the evidence established guilt beyond a
reasonable doubt.
Next, Butler maintains there was insufficient evidence to
support the jury’s finding that he willfully: (1) exported yersinia
pestis to Tanzania without a license; (2) described in a misleading
manner the yersinia pestis as “laboratory materials” on the FedEx
waybill; and (3) violated federal hazardous material regulations
when he shipped the yersinia pestis to Tanzania.
As to the first sub-issue, the Government points this panel to
evidence introduced at trial that Butler certified on the FedEx
waybill that the samples were being “exported . . . in accordance
with Export Administration Regulations,” when in fact they were
not. The Government notes that Butler had in his office a document
downloaded from the Center for Disease Control website that clearly
20 indicated a Department of Commerce permit was required to export
yersinia pestis. As further evidence of Butler’s knowledge of
export requirements, the Government observes that Butler previously
signed four waybills shipping hazardous materials to Canada and
checked the box indicating a Shipper’s Export Declaration was not
needed (which it is not in those circumstances). Moreover, the
Government introduced evidence that during the 1990s, Butler
properly shipped infectious substances and other dangerous goods
more than 30 times. Based on this evidence, Butler’s argument here
must fail.
With regard to Butler’s conviction for making a false
statement by labeling the yersinia pestis as “laboratory
materials,” he contends that because he did not intend to deceive
anyone, he cannot be found to have acted willfully. The Government
responds by noting that Butler also certified on that same label
that he was not shipping dangerous goods. According to the
Government, a reasonable person certainly could conclude that an
accomplished researcher, who was the Chief of Infectious Diseases
at HSC and had spent considerable time studying plague abroad,
would have known that plague was a dangerous good requiring the
proper identification thereof. Accordingly, Butler’s sufficiency
of the evidence argument on this sub-issue is also without merit.
Finally, Butler contends his conviction for violating
hazardous material regulations required the Government to prove
21 that his infraction could not have been due to a good faith mistake
or misunderstanding of the law. The Government responds with an
argument identical to its reason why there was sufficient evidence
establishing Butler’s unlawful export of yersinia pestis to
Tanzania without a license: Butler had successfully and legally
shipped hazardous materials at least 30 times before making this
particular shipment. Importantly, Butler comes forward with no
specific evidence of his own on appeal refuting the Government’s
evidence, or establishing what about his actions warranted a
finding that he made a good faith mistake or misunderstood the law.
Without more, a reasonable trier of fact could have found that the
evidence established guilt beyond a reasonable doubt.
VI. Whether the district court’s use of the 2001 Sentencing Guidelines in sentencing Butler was in violation of the Ex Post Facto Clause.
Butler argues the district court erred in using the 2001
version of the Sentencing Guidelines, instead of the 2000 version,
for purposes of his sentencing. Butler contends he was convicted
on two sets of discrete charges that occurred during different time
periods. Specifically, Butler notes that the events relating to
the Contract Counts took place between August 1998 and August 2001,
while the events underlying the Plague Counts transpired during
2002. Because the activities relating to the Contract Counts were
completed by August 2001, argues Butler, the 2000 version should
have been applied as it was in effect at that time. Butler
22 explains that had the 2000 version been used, his offense level
would have been reduced by four.
This Court reviews the district court’s application of the
Guidelines de novo and its findings of fact for clear error.6 The
district court shall apply the Guidelines in effect on the date the
defendant was sentenced, U.S. SENTENCING GUIDELINES MANUAL § 1B1.11(a)
(2004), unless such application violates the Ex Post Facto Clause
of the Constitution, and in that case, the district court shall
apply the manual in effect on the date the offense of conviction
was committed, id. § 1B1.11(b)(1).
In determining the appropriate version of the Guidelines for
sentencing purposes, the district court appears to have employed
the one-book rule, which provides that where a “defendant is
convicted of two offenses, the first committed before, and the
second after, a revised edition of the Guidelines Manual became
effective, the revised edition of the Guidelines Manual is to
applied to both offenses.” Id. § 1B1.11(b)(3). In following this
clarifying provision, the district court applied the 2001 version
of the Guidelines which was in effect on the date the events
underlying Butler’s last conviction occurred in September 2002.
Moreover, the commentary to § 1B1.11(b)(3) provides that this
6 We employ this standard of review even as to those limited cases on direct appeal at the time United States v. Booker, 125 S. Ct. 738 (2005), was issued where the district court sentenced under a mandatory guideline system. See United States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005).
23 approach:
[S]hould be followed regardless of whether the offenses of conviction are the type in which the conduct is grouped under § 3D1.2(d). The ex post facto clause does not distinguish between groupable and nongroupable offenses.
Id. § 1B1.11(b)(3), cmt. background.7 Moreover, this Court has
previously concluded that application of § 1B1.11(b)(3) in
instances similar to the one here is permissible and does not
violate the Ex Post Facto Clause. See United States v. Kilmer, 167
F.3d 889, 895 (5th Cir. 1999). Based on the relevant guideline
provisions and the applicable commentary, we reject Butler’s ex
post facto challenge to his sentence.
CONCLUSION
Having carefully reviewed the entire record of this case, and
having fully considered the parties’ respective briefing and
arguments, we conclude the district court did not commit reversible
error by refusing to sever the Contract Counts from the Plague
Counts. Moreover, the district court made appropriate discovery
and evidentiary rulings. Also, there was sufficient evidence
supporting Butler’s convictions under the Contract Counts and the
Plague Counts. Finally, the district court’s application of the
2001 Sentencing Guidelines was not violative of the Ex Post Facto
Clause. Accordingly, we AFFIRM Butler’s conviction and sentence.
7 Butler’s criminal convictions under the Contract Counts and Plague Counts are not identified in § 3D1.2(d) as groupable offenses.
24 AFFIRMED.