United States v. Thompson

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 23, 2024
• Docket: 22-20664
• Status: Unpublished

Opinion

Case: 22-20663 Document: 76-1 Page: 1 Date Filed: 02/23/2024

United States Court of Appeals for the Fifth Circuit United States Court of Appeals _____________ Fifth Circuit

FILED No. 22-20663 February 23, 2024 consolidated with Lyle W. Cayce No. 22-20664 Clerk _____________

United States of America,

Plaintiff—Appellee,

versus

Charles Wendell Thompson,

Defendant—Appellant. ______________________________

Appeal from the United States District Court for the Southern District of Texas USDC Nos. 4:17-CR-566-3, 4:17-CR-414-3 ______________________________

Before Barksdale, Graves, and Oldham, Circuit Judges. Per Curiam:* In a consolidated jury trial, Charles Wendell Thompson was convicted of: two counts of conspiracy to unlawfully distribute and dispense controlled substances, in violation of 21 U.S.C. §§ 846 (prohibiting conspiracy), 841(a)(1) (banning distribution and dispensation of controlled substances), _____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 22-20663 Document: 76-1 Page: 2 Date Filed: 02/23/2024

No. 22-20663 c/w No. 22-20664

841(b)(1)(C) (outlining penalty); and eight counts of aiding and abetting the unlawful distribution and dispensing of controlled substances, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C), 18 U.S.C. § 2 (punishing as principals those who aid and abet crimes). Prosecuted for his work as a physician assistant at two medical clinics, Thompson contends the court reversibly erred by admitting improper drug-profiling evidence and failing to instruct the jury on the required mens rea under Ruan v. United States, 142 S. Ct. 2370, 2382 (2022). Because Thompson did not preserve these issues in district court (as he concedes for the first issue), review is only for plain error. E.g., United States v. Broussard, 669 F.3d 537, 546 (5th Cir. 2012). Under that standard, Thompson must show a forfeited plain error (clear-or-obvious error, rather than one subject to reasonable dispute) that affected his substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If he makes that showing, we have the discretion to correct the reversible plain error, but generally should do so only if it “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings”. Id. (citation omitted). For Thompson’s assertion that the court admitted improper drug- profiling evidence, our court, in a recent opinion involving one of Thompson’s co-defendants, addressed this exact issue. See United States v. Pierre, 88 F.4th 574, 579–80 (5th Cir. 2023) (rejecting contention under plain-error review). Our court explained that, because the co-defendant did not identify a drug-profiling ruling in the context of “pill mills”, his contention failed on plain-error review. Id. at 580 (“Most profiling cases concern drug couriers . . . . In effect, [the co-defendant] would have us declare it ‘obvious’ error not to transplant our profiling cases into a realm where they fit awkwardly, if at all. That argument fails.”); see, e.g., United States v. Trejo, 610 F.3d 308, 319 (5th Cir. 2010) (“An error is not plain under current law if a defendant’s theory requires the extension of precedent.”

2 Case: 22-20663 Document: 76-1 Page: 3 Date Filed: 02/23/2024

(citation omitted)); United States v. Evans, 892 F.3d 692, 696 (5th Cir. 2018) (defining “pill mill” as “an operation that prescribes drugs with no legitimate medical purpose”). Thompson, like his co-defendant, fails to identify any authority extending the prohibition of drug-profiling testimony to pill-mill proceedings. He has not shown, therefore, the requisite clear-or- obvious error. See Pierre, 88 F.4th at 580; see also United States v. Gonzalez, 792 F.3d 534, 538 (5th Cir. 2015) (explaining a “lack of binding authority is often dispositive in the plain-error context”). As for Thompson’s other challenge, that the jury instructions failed to inform the jury of the proper mens rea under Ruan, we need not decide whether Thompson has shown the requisite clear-or-obvious error because “he has not shown that [the claimed plain] error affected his substantial rights”. Pierre, 88 F.4th at 581; see also Puckett, 556 U.S. at 135 (explaining error affects substantial rights when it impacts outcome of proceedings). At trial, the Government presented “overwhelming evidence” that Thompson understood the “illegitimacy” of his actions. Pierre, 88 F.4th at 581 (citation omitted); United States v. Ajayi, 64 F.4th 243, 247 (5th Cir. 2023) (“[T]he defendant must subjectively understand the illegitimate nature of the distribution they facilitate to commit an offense under § 841(a)”. (emphasis in original) (citing Ruan, 142 S. Ct. at 2381)). AFFIRMED.