                                                               NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                             ________________

                         Nos. 11-4511, 11-4512 & 11-4513
                                ________________

                         UNITED STATES OF AMERICA

                                           v.

            QUALITY FORMULATION LABORATORIES, INC;
        AMERICAN SPORTS NUTRITION INC; MOHAMED S. DESOKY,

                                                Appellants (No. 11-4511)

                                 OMAR DESOKY,

                                                Appellant (No. 11-4512)

                                AHMAD DESOKY,

                                                Appellant (No. 11-4513)

                                ________________

                    Appeal from the United States District Court
                             for the District of New Jersey
                 (D.C. Civil Action Nos. 2-10-cr-00699-001/2/4/5/6)
                   District Judge: Honorable Garrett E. Brown, Jr.
                                  ________________

                              Argued January 8, 2013

             Before: SCIRICA, AMBRO, and FUENTES, Circuit Judges

                          (Opinion filed: January 25, 2013)

Eric R. Breslin, Esquire
Marco A. Gonzalez, Jr., Esquire (Argued)
Duane Morris
1037 Raymond Boulevard
One Riverfront Plaza, Suite 1800
Newark, NJ 07102

      Counsel for Appellants
      Quality Formulation Labs,
      American Sports Nutrition Inc.,
      Mohamed S. Desoky

Lisa Van Hoeck, Esquire (Argued)
Office of Federal Public Defender
220 South Clinton Avenue
Station Plaza #4, 4th Floor
Trenton, NJ 08609

      Counsel for Omar Desoky, Appellant

Ricardo Solano, Jr., Esquire (Argued)
Friedman, Kaplan, Seiler & Adelman
One Gateway Center, 25th Floor
Newark, NJ 07102

      Counsel for Ahmad Desoky, Appellant

Mark E. Coyne, Esquire
David E. Dauenheimer, Esquire
Office of United States Attorney
970 Broad Street, Room 700
Newark, NJ 07102

Paul J. Fishman
  United States Attorney
Stuart F. Delery
  Acting Assistant Attorney General
Patrick R. Runkle, Esquire (Argued)
United States Department of Justice
Office of Consumer Litigation
P.O. Box 386
Washington, DC 20044

      Counsel for Appellee



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                                    ________________

                                        OPINION
                                    ________________

AMBRO, Circuit Judge

       Appellants—three companies and three individuals—jointly appeal their

convictions for criminal contempt and Appellants Omar and Ahmad Desoky appeal their

sentences. We affirm the convictions but vacate and remand Omar and Ahmad Desoky’s

sentences for further findings.

                                    I.     Background

       In 2010, following a civil suit, Mohamed Desoky and the three dietary supplement

companies he ran—Quality Formulations Laboratories (QFL), American Sports Nutrition

(ASN), and Sports Nutrition International (SNI)—entered into a court-approved Consent

Decree with the federal Food and Drug Administration (FDA) halting production at the

companies’ Paterson, New Jersey manufacturing facility. The Consent Decree provided

that

       [QFL, ASN, SNI and Mohamed Desoky] and each and all of their officers, agents,
       employees, successors, and assigns, and any persons in active concert or
       participation with any of them who receive notice of this Decree, are permanently
       restrained and enjoined . . . from directly or indirectly receiving, manufacturing,
       preparing, packing, labeling, and distributing at their plant located [in] . . .
       Paterson, New Jersey . . . or any new location(s) at which the Defendants receive,
       manufacture, prepare, pack, label, hold, or distribute articles of food, any article of
       food unless and until [described] conditions have been met[.]

App. at 78, Consent Decree, para. VII. It also required that

       [QFL, ASN, SNI and Mohamed Desoky] shall notify FDA in writing at least thirty
       (30) calendar days before any change [in] ownership, name, or character of their
       business, including reorganization, relocation, dissolution, assignment, or lease or

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      sale of the business or any asset of the business, such as buildings, equipment, or
      inventory, that may affect compliance with the obligations arising from this
      Decree.

Id. at 92, Consent Decree, para. XV.

      Pursuant to the Consent Decree, the Paterson facility was shut down.

Subsequently, manufacture of Appellants’ products began at a facility in Congers, New

York owned by ADH Health Products (―ADH‖). On discovering this manufacturing, the

FDA filed an order to show cause alleging criminal contempt by Mohamed, the three

companies, and Mohamed’s two sons and company employees, Ahmad and Omar. The

Government alleged that Appellants willfully violated the Consent Decree by

manufacturing products at the Congers facility. Appellants asserted a good faith defense,

arguing that they contracted with ADH to manufacture QFL products, and they believed

this third-party manufacturing was permitted by the Consent Decree.

      Evidence presented at trial showed that the Congers facility manufactured QFL

products, that Appellants sent raw material and equipment from Paterson to Congers, that

former and current QFL employees worked on the products in Congers, and that QFL

paid those employees in cash. Appellants did not disclose the activities at Congers to the

FDA, including during two FDA inspections of the Paterson facility.

      In addition to the activities at Congers, some raw ingredients were shipped to the

Paterson facility, Ahmad brought some products manufactured at ADH to the Paterson

facility to be shipped to customers, and Ahmad loaded two pallets of product from the

Paterson facility to a truck owned by Performance Food Centers. The Government



                                            4
alleged that these actions also violated the Consent Decree, and Appellants asserted a

good faith defense to these charges as well.

       Appellants were convicted of criminal contempt. Mohamed was sentenced to 40

months’ imprisonment. Ahmad and Omar were each sentenced to 34 months’

imprisonment, and the companies were fined. All appeal.1

                                      II.     Discussion

       Appellants raise four challenges to their convictions and one to a sentencing

enhancement applied to Omar and Ahmad Desoky.

       A.     Exclusion of Mary Richardson’s Testimony

       The District Court excluded Appellants’ offered testimony of Mary Richardson, an

expert consultant they hired to help them comply with the FDA’s requirements in order to

avoid and then lift the production shut-down. Richardson would not have testified about

the charged conduct. Instead, her testimony related solely to Appellants’ efforts to

remediate the issues identified at the Paterson facility.

       We review a district court’s decision to admit evidence for abuse of discretion.

United States v. Givan, 320 F.3d 452, 460 (3d Cir. 2003). Some evidence of earlier

―good acts‖ evidence may be admissible to show a defendant lacked wrongful intent in

later behavior. See United States v. Garvin, 565 F.2d 519, 522 (8th Cir. 1977) (evidence

of correctly submitted applications for approximately 18 insurance policies admissible to

show lack of intent to commit a scheme to defraud); United States v. Shavin, 287 F.2d


1
  The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have appellate
jurisdiction under 28 U.S.C. § 1291.
                                               5
647, 654 (7th Cir. 1961) (evidence of properly submitted medical bills admissible to

show lack of intent to defraud with later medical bills).

       But Richardson’s testimony is not of this sort. Evidence that Appellants

undertook ameliorative efforts at Paterson does not negate the Government’s theory—

apparently adopted by the jury—that Appellants engaged in simultaneous efforts to

improve the Paterson plant and to continue manufacturing elsewhere, with the latter

actions violating the Consent Decree.

       In addition, Richardson’s testimony would have raised ancillary issues about the

initial problems at Paterson and the Appellants’ ameliorative efforts. The District Court

concluded this outweighed any potentially probative value of the testimony. We agree,

and, moreover, discern no harm in excluding Richardson’s testimony. United States v.

Berrios, 676 F.3d 118, 131 (3d Cir. 2012). Appellants provided uncontradicted evidence

at trial about their efforts at Paterson, and their counsel were able to argue to the jury that

these efforts demonstrated their lack of willfulness to violate the decree. In this context,

the District Court did not err in excluding the testimony.

       B.     Jury Instruction on a Good Faith Defense

       Appellants also challenge two aspects of the jury charge on their good faith

defense. They argue that the Court improperly instructed the jury: (1) that an honest

misunderstanding of the order must be plausible; and (2) that a defendant does not act in

good faith if he also knowingly made false statements, representations, or purposeful

omissions. The first part we review de novo because Appellants objected to the language

at trial. United States v. Berrios, 676 F.3d at 136. Appellants contend that we should

                                               6
review the false statements instructions de novo because they omit key language in their

requested charge. While we doubt that merely requesting an instruction contrary to the

one given sufficiently informs the Court of the specific objection, thus preserving the

issue for appeal, Fed. R. Crim. P. 30(d); United States v. Russell, 134 F.3d 171, 178–79

(3d Cir. 1998), we discern no error under either a de novo or plain error review.

       The language used by the District Court on plausibility comes from our analysis of

a good faith defense in Taberer v. Armstrong World Industries, Inc., 954 F.2d 888, 909

(3d Cir. 1992). Although Appellants allege error in this instruction, we consider jury

instructions as a whole, and here find that the jury was properly instructed that a

defendant did not commit criminal contempt if he acted under an honest, although

incorrect, misunderstanding of the court order. United States v. Gross, 961 F.2d 1097,

1103 (3d Cir. 1992) (―[T]he good faith instruction [i]s simply a reiteration that the

government must carry its burden in demonstrating that the accused acted knowingly and

willfully . . . .‖). We also find no error in the Court’s instruction that a defendant does

not act in good faith if he makes false statements, representations, or purposeful

omissions. As such, there is no support for Appellants’ argument that the jury might

have determined that they were not entitled to a good faith defense because of a false

statement or omission unrelated to the charged conduct.

       C.     Sufficiency of the Evidence on the Aiding and Abetting Charge

       Omar and Ahmad challenge the sufficiency of the evidence that they aided and

abetted the other Appellants’ failure to notify the FDA of the companies’ relocation from

Paterson to Congers. When reviewing a jury verdict for insufficiency of evidence, we

                                              7
consider the evidence in a light most favorable to the Government, and will affirm unless

no reasonable jury could find the essential elements of the charged offense beyond a

reasonable doubt. United States v. Gatlin, 613 F.3d 374, 380 (3d Cir. 2010). Aiding and

abetting has four elements. ―First, the person who is being aided must be intentionally

committing a crime; second, the aider or abettor must know that the other is committing a

crime; third, the aider or abettor must have the purpose to aid that other to commit the

crime; and, finally, fourth, the aider must in fact render aid or assistance.‖ United States

v. Nolan, 718 F.2d 589, 592 (3d Cir. 1983). Sufficient evidence was presented at trial

for a reasonable jury to conclude that all four elements were met. Omar and Ahmad

knew that Mohamed had failed to inform the FDA of the move to Congers, a violation of

the Consent Decree, and they successfully assisted him and the other Appellants in

concealing the relocation.

       D.     Closing Arguments

       Appellants also argue that the prosecutors made a number of improper statements

during closing argument. We review a district court’s ruling on contemporaneous

objections to the statements for abuse of discretion. United States v. Brennan, 326 F.3d

176, 182 (3d Cir. 2003). To determine whether a district court abused its discretion, we

must consider whether the prosecutor engaged in misconduct, and, if so, whether the

remarks were harmless. United States v. Rivas, 493 F.3d 131, 139–40 (3d Cir. 2007).

We review statements to which Appellants did not object for plain error. Brennan, 326

F.3d at 182. Although we are troubled by the prosecutor’s reference to defense counsels’

attack on a witness’s credibility as ―disgusting‖ and ―ridiculous,‖ we do not think this

                                              8
statement alone, or in combination with the other challenged comments, prejudiced

Appellants. The other challenged comments do not amount to misconduct, nor have

Appellants shown prejudice as a result of these statements, alone or in combination.

       E.      Sentencing Enhancement Applied to Omar and Ahmad

       Omar and Ahmad also challenge the District Court’s application of a three-level

enhancement under section 3B1.1(b) of the United States Sentencing Guidelines. We

review the factual findings supporting a district court’s application of the Guidelines for

clear error, and exercise plenary review over a court’s interpretation of the Guidelines.

United States v. Grier, 475 F.3d 556, 570 (3d Cir. 2007) (en banc). Section 3B1.1(b)

provides for an enhancement ―[i]f the defendant was a manger or supervisor‖ and the

criminal activity was extensive. U.S.S.G. § 3B1.1(b). It is applicable in two situations.

First, the enhancement is proper if the defendant is a ―manager, or supervisor of one or

more other participants.‖ § 3B1.1(b) cmt. 2. A participant is defined as someone who is

―criminally responsible for the commission of the offense‖ even if not convicted.

§ 3B1.1(b) cmt. 1; United States v. Katora, 981 F.2d 1398, 1404–05 (3d Cir. 1992). In

addition, the defendant must have more than legal management responsibility over the

participant; he must have actually managed or supervised the participant’s illegal

conduct. United States v. DeGovanni, 104 F.3d 43, 44 (3d Cir. 1997) (―[O]ne is only a

supervisor under U.S.S.G. § 3B1.1(c) when he is so involved in, and connected to, the

illegal activity of others that he actually supervises their illegal conduct . . . .‖).

Alternately, the role enhancement applies if the defendant ―exercised management



                                                9
responsibility over the property, assets, or activities of a criminal organization.‖ § 3B1.1

cmt. 2.

          Here the District Court determined that the criminal activity was extensive, but did

not make any factual findings regarding whether Omar or Ahmad managed or supervised

the unlawful activities of a criminally culpable participant or that a criminal organization

existed over which Omar and Ahmad exercised management responsibility. Moreover,

the Court did not determine whether the two unindicted employees the Government

asserts were managed or supervised were criminally culpable. To sort matters out, we

remand so the District Court can make necessary factual determinations.

          We thus affirm Appellants’ convictions. However, we vacate Omar and Ahmad

Desoky’s sentences, and remand for further factual findings.




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