                                                     [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT              FILED
                  _____________________________
                                              U.S. COURT OF APPEALS
                                                ELEVENTH CIRCUIT
                           No. 03-16487              May 27, 2005
                  _____________________________ THOMAS K. KAHN
                                                      CLERK
                 D. C. Docket No. 03-00070 CR-1-CB

UNITED STATES OF AMERICA,

                                          Plaintiff-Appellee,

    versus

ROBERT J. WARHURST, JR.,
                                          Defendant-Appellant.

                  ____________________________

                          No. 04-10754
                  ____________________________

                 D. C. Docket No. 03-00070-CR-1-CB

UNITED STATES OF AMERICA,

                                          Plaintiff-Appellant
                                          Cross-Appellee,

    versus

ROBERT J. WARHURST, JR.,

                                          Defendant-Appellee
                                          Cross-Appellant.
                              _________________________

                      Appeals from the United States District Court
                         for the Southern District of Alabama
                            _________________________

                                       (May 27, 2005)

Before EDMONDSON, Chief Judge, DUBINA and HULL, Circuit Judges.

PER CURIAM:

       A jury convicted Defendant-Appellant Warhurst of violating federal drug

laws 21 U.S.C. §§ 841(c)(2) and 846. The district court charged the jury with a

deliberate ignorance instruction and downwardly departed for the sentence.

Warhurst appeals the jury instruction, and the Government cross-appeals the

downward departure. On both issues, we affirm.1



                                            FACTS



       Warhurst owned and served as the pharmacist of a drug store located near

Mobile, Alabama. During the course of 2000 and 2001, several persons purchased



  1
        This case initially was consolidated with the Government’s appeal of one of Warhurst’s co-
defendants, Wells. In the interim between the trial and the oral argument in this case, Wells died.
We granted the Government’s unopposed motion to vacate Wells’s conviction. Wells’s case does
not affect this one.

                                                2
large quantities of over-the-counter pseudoephedrine, like and including the

decongestant Sudafed. Often the large quantities were used to manufacture the

illegal drug, methamphetamine.

      For example, over the course of four months, James Harrell said he

purchased about $60,000 to $80,000 worth of pseudoephedrine. The individual

purchases were significant: $150 each on the first and second day he bought, $350

the following day, and so on almost every day for the four months.2

      Byron Jones purchased thirty-five packages of pseudophedrine from

Warhurst’s store in the fall of 2000. Jones’s usual practice was to purchase around

200,000 to 300,000 mg of pseudoephedrine per week from Warhurst, costing

Jones about $200 to $400 each time. From time to time, one of Warhurst’s

employees (not Warhurst) informed Jones when the next shipment of

pseudoephedrine would arrive. On the expected day, Jones would often wait

outside the store for the truck’s arrival. His purchases totaled $7000 to $8000.

      Beginning in the spring of 2001, Vicki Carr also made substantial purchases

at Warhurst’s store. The first day she purchased “everything off the shelf,” costing

her about $100. She repeated this conduct about ten or twelve times, and she also

ordered large quantities of pseudoephedrine through the pharmacy an additional

  2
      Harrell testified that, if he was not personally in the store, he “would have somebody go.”

                                               3
five to seven times. Carr estimates that, in total, she spent approximately $1500 to

$1600 at Warhurst’s pharmacy from the spring of 2001 through 8 September 2001.

Mrs. Carr’s husband, Cecil Carr, also began purchasing psuedoephedrine from

Warhurst’s pharmacy in 2000. He purchased thirty boxes the first time he

entered. He repeated this twelve times over the year, causing him to spend

between $1000 and $1100 at Warhurst’s store. The jury also heard testimony from

other witnesses who purchased $200 of pseudoephedrine over a two-week period.

      As the police began arresting these persons, the police focused on

Warhurst’s store. On 12 August 2002, Mobile Police Officer Chad Roberts

entered Warhurst’s store undercover. He asked Warhurst if the twelve boxes on

the shelf were all the Sudafed that Warhurst had. Warhurst answered

affirmatively, and Roberts bought the twelve boxes and an additional nine boxes

of different pseudoephedrine products. Roberts returned four days later. That day

he purchased approximately twenty-six boxes of pseudoephedrine medicine.

These purchases totaled about $300. About nine days later, Roberts purchased an

additional $337 worth of pseudoephedrine products. In September, Roberts made

two more controlled buys of pseudoephedrine products: one on 9 September

totaling $118, and two on 11 September totaling $403.




                                         4
       Later, Officer Roberts used another tactic: explaining to the clerks (not

Warhurst) how much money he had and saying that he wanted to purchase as

much Sudafed as the amount would permit. Warhurst’s employees obliged.

Roberts purchased $1000 worth on 17 September; $400 on 14 January.3

       As part of the same task force as Officer Roberts, Officer Barker of the

Saraland Police also made a controlled buy on 17 September 2002. He purchased

$856 worth of Sudafed. The Government also produced evidence documenting

that Warhurst’s store sold significantly more pseudoephedrine products than other

stores in the surrounding area.

       At least one of Warhurst’s employees, the cashier, Rhonda McInvale, also

testified. She explained that Warhurst knew about the money that came into the

store during each business day. McInvale said that Warhurst often kept $500 to

$1000 in cash and gave her the remaining checks to deposit.

       As Warhurst points out, however, none of the purchaser-witnesses told

Warhurst about their illicit plans for the Sudafed. So the Government offered

circumstantial evidence of proof of Warhurst’s knowledge. From the buyers, the

Government elicited this kind of testimony: (1) James Harrold’s statement that



  3
        On this day, Officer Roberts also pre-ordered a case, leaving his cell phone number with the
clerk so she could notify him of its arrival.

                                                 5
Warhurst told him to purchase his $350 worth of Sudafed at the front of the store,

opposite from where Warhurst worked; (2) Byron Jones’s recollection that when

Warhurst’s store had no Sudafed, Warhurst told him to call a certain employee or

return on Tuesday or Thursday when the orders arrived; (3) Cecil Carr’s

description of Warhurst as being near the register when Carr purchased the large

quantities; (4) Chad Roberts testimony that Warhurst was in the store each time he

purchased pseudoephedrine, and that Roberts collected the large quantities of the

product no more than five yards from Warhurst whenever he made a purchase; and

(5) John Barker explained that he made eye contact with Warhurst after taking at

least twenty boxes of Sudafed off the shelf near Warhurst, and after posing his

body so that Warhust could see him taking the individual boxes one-by-one.

      The Government also elicited testimony from the Executive Director of the

Alabama Board of Pharmacy. He testified that all registered Alabama pharmacists

like Warhurst received newsletters from at least November 1994 through 2002 that

placed them on notice to watch for excessive purchases of pseudoephedrine and

ephedrine. A compliance coordinator with the pharmaceutical wholesale

distributer that sold Sudafed to Warhurst’s store testified as well. He recalled

speaking to whom he believed to be the pharmacist at Warhurst’s store.

According to his testimony, the compliance coordinator told the pharmacist that

                                          6
the distributor planned to limit the quantities sold to Warhurst’s store because the

level of pseudoephedrine purchases by the store reached suspicious levels. The

coordinator further described that pharmacist’s reaction as being upset that the

distributor would limit the sales.

      Last, McInvale testified to a conversation she had with Warhurst that a jury

could believe established his knowledge: “On one occasion when I put some

money in his register he [Warhurst] made the remark that he didn’t think we were

busy the day before. And I told him that I put eighteen hundred dollars in there

from our register from the Sudafed sales and he didn’t say anything.”

      At trial, Warhurst’s main defense was that he did not know the purchases

were excessive or illegal. He argued that any conspiracy or knowledge of

suspicious activity resided with the store clerks who rang up the purchases. And

over Warhurst’s objection, the district court gave a deliberate indifference

instruction on the knowledge element of the crime:

                     Now, when knowledge of the existence of a particular
             fact is an essential part of a defense, such knowledge may be
             established if the defendant is aware of a high probability of
             its existence. Unless the defendant actually believes that it
             does not exist.      So with respect to the issue of the
             defendant’s knowledge in this case, if you find from the
             evidence beyond a reasonable doubt that the defendant
             believed that pseudoephedrine, a listed chemical, sold by his
             employees was being used to manufacture methamphetamine,

                                          7
             deliberately and consciously tried to avoid learning that the
             pseudoephedrine was being used for this purpose in order to
             be able to say if apprehended that he did not know the
             pseudoephedrine being sold by his employees was being used
             to manufacture methamphetamine, you may trat such
             deliberate avoidance of positive knowledge as the equivalent
             of knowledge.
                    In other words, you may find that a defendant acted
             knowingly if you find beyond a reasonable doubt either, one,
             that the defendant actually knew or had reasonable cause to
             believe that pseudoephedrine was being used to manufacture
             methamphetamine or, two, that he deliberately closed his eyes
             to what he had every reason to believe were the facts. I must
             emphasize however, that the requisite proof of knowledge on
             the part of the defendant cannot be established by merely
             demonstrating that the defendant was negligent, careless, or
             foolish.

      The jury disagreed with Warhurst’s defense. It returned a guilty verdict on

all ten counts: one for conspiracy to possess pseudoephedrine with intent to

manufacture methamphetamine, 21 U.S.C. § 846, and nine for possession of

pseudoephedrine with intent to manufacture methamphetamine, 21 U.S.C. §

841(c)(2).

      Based on Warhurst’s convictions, the United States Sentencing Guidelines

imposed a range of imprisonment from 235 to 293 months. The trial court initially

sentenced Warhurst (based only on counts one, three and ten) to forty-eight

months in prison and supervised release thereafter. In addition, the court imposed

fines totaling $25,300. The district court cited several reasons for its downward

                                         8
departure: (1) falling outside the heartland; (2) that Warhurst would not survive an

imposition of the full sentence; (3) other employees “who were arguably equally

as culpable” were not prosecuted;4 and (4) that, at the time of sentencing, Warhurst

was advanced in age (seventy-two), and his physical health was poor.5

       On appeal, Warhurst challenges the use, but not the wording, of the

deliberate ignorance charge. The Government cross-appealed, arguing that the

district court erred by granting Warhurst the downward departure.



                                         DISCUSSION



       1. The Deliberate Ignorance Charge

       Warhurst argues that insufficient evidence supported the use of the

deliberate ignorance instruction. He does not challenge the wording of the

instruction or that it can sometimes be used.6 We review the legal correctness of a

   4
       The district court did not cite this reason in its published report.
  5
        The district court explained that Warhurst submitted his medical record into evidence. The
record indicates that he suffered from various ailments, including arthritis, peptic ulcers, diabetes,
hypertension, bulging disk in the spine, and heart disease. It held a resentencing hearing on 5
February 2004 to add the additional counts, but the court imposed the same sentence. In the
resentencing, the trial judge said that he imposed the sentence to meet the objectives of “punishment,
deterrence and incapacitation.”
   6
       By the way, that argument is foreclosed by United States v. Prather, 205 F.3d 1265, 1270
(11th Cir. 2000) (upholding use of deliberate ignorance instruction for 18 U.S.C. § 841(3)(2)

                                                  9
decision to charge the jury with particular instruction de novo. United States v.

Prather, 205 F.3d 1265, 1270 (11th Cir. 2000) (citation omitted). Like the panel in

Prather, we say that courts should apply the deliberate ignorance instruction “‘only

in those comparatively rare cases where . . . there are facts that point in the

direction of deliberate ignorance.’” 205 F.3d at 1270 (ellipsis in original) (citing

United States v. Rivera, 944 F.2d 1563, 1570 (11th Cir. 1991)).

       Prather addressed similar facts to those here. The defendant was the

president of a mail-order corporation that distributed over-the-counter

pharmaceuticals, including pseudoephedrine. 205 F. 3d at 1268. Facts

demonstrated he had some knowledge that the pseudoephedrine would eventually

be used to manufacture methamphetamine. These facts included that the

defendant turned down a request to sell one hundred cases of pseudoephedrine to

an person’s home because, according to the defendant, “the ‘cops would be hot on’

both [the defendant and buyer].” Id. The jury also heard evidence that Prather

knew for about a year that “several of his customers” were under investigation for

drug related activities, but Prather continued to sell them pseudoephedrine. Id.

Also, an attorney warned Prather that his sales “might be considered prima facie




conviction).

                                          10
evidence of an intent to violate the law.” Id. Accordingly, this Court concluded

sufficient evidence warranted the instruction. Id. at 1270.

       In Rivera, we said that the government did not provide sufficient evidence

to warrant the deliberate ignorance instruction. 944 F.2d at 1572. There, the

Government seized the suitcases of three inbound passengers from Columbia. The

Government provided no evidence that the passengers knew the suitcases were

altered (false bottoms) and contained cocaine, nor did the Government establish

that anyone gave the defendants the suitcases for delivery. Id.

       In the present case, we conclude the district court did not err by giving the

deliberate ignorance instruction. True, the Government produced more

compelling evidence in Prather. And “[t]he danger of overly liberal use of such an

instruction in an inappropriate case is that juries will convict on a basis akin to a

standard of negligence: that the defendant should have known that the conduct

was illegal.” Rivera, 944 F.2d at 1570 (emphasis in original). But sufficient

evidence existed here to allow the charge.

       As the store owner, Warhurst handled all the money and very likely knew of

the increased sales.7 In addition, he was in the store for the vast majority of the



 7
       McInvale’s testimony about the $1800 supports the link between increased sales and Sudafed
purchases.

                                              11
major purchases and physically near the Sudafed. Moreover, Warhurst facilitated

Byron Jones’s excessive purchases by telling him when the orders arrived. This

evidence satisfies that Warhurst knew persons were purchasing significant

amounts of pseudoephedrine.

       To show Warhurst’s knowledge that the purchasers would likely use the

drug illegally, the Government produced pharmacy newsletters warning of

excessive purchases being linked to methamphetamine production. And, the call

from the compliance coordinator indicates that Warhurst knew such mass sales

were a problem. This evidence supports “the inference that the defendant was

aware of a high probability of the existence of the fact in question.” United States

v. Alvarado, 838 F.2d 311, 314 (9th Cir. 1987). The instruction was proper.

       2. Sentencing Issues.

       After the benefit of oral argument and our review of the record, we decide

that the Government’s cross-appeal lacks merit. Accordingly, on both the

conviction and the sentence imposed, the district court is affirmed.8



AFFIRMED.


   8
        Warhurst moved to amend his brief to substitute the following conclusion: “The appellant
respectfully moves this Honorable Court to reverse his conviction and sentence, grant him a new trial
or remand the case to the district court for resentencing.” We deny that motion. Even if we granted
the motion, we conclude that it has no substantive impact on our resolution of this case.

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