                               PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 13-4252


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

AWNI SHAUAIB ZAYYAD,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.     Robert J. Conrad,
Jr., District Judge. (3:10−cr−00243−RJC−DCK−1)


Argued:   December 11, 2013                Decided:   January 24, 2014


Before AGEE, DIAZ, and FLOYD, Circuit Judges.


Affirmed by published opinion. Judge Agee wrote the opinion, in
which Judge Diaz and Judge Floyd concurred.


ARGUED: Joshua B. Carpenter, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Asheville, North Carolina, for Appellant. David
M. Lieberman, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellee. ON BRIEF: Henderson Hill, Director, FEDERAL
DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North
Carolina, for Appellant.      Mythili Raman, Acting Assistant
Attorney General, Denis J. McInerney, Acting Deputy Assistant
Attorney General, Criminal Division, Appellate Section, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Anne M.
Tompkins, United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Charlotte, North Carolina, for Appellee.




                              2
AGEE, Circuit Judge:

     Awni Shauaib Zayyad was convicted of five felony counts

relating   to    the    sale    of     counterfeit      prescription      drugs.      On

appeal,    Zayyad      raises    two    assignments      of    error.        First,   he

contends that the district court erred in denying his attempts

to   introduce      certain      evidence       about    a    “gray     market” 1     for

prescription pills.            Second, Zayyad argues that the Government

never established that he knew that the pills that he sold were

counterfeit.

     We affirm the judgment of the district court, as neither of

Zayyad’s arguments have merit.              The district court appropriately

limited    Zayyad’s       gray-market       evidence,         and   the    Government

offered    sufficient      evidence       of    his     knowledge     that    he    sold

counterfeit pills.



                                           I.

                                           A.

     Essam Elasmar ran a counterfeit drug operation through his

convenience store in Charlotte, North Carolina, where he peddled

erectile-dysfunction drugs that looked like Viagra and Cialis.

     1
       “The term ‘gray market good’ refers to a good that is
‘imported outside the distribution channels that have been
contractually negotiated by the intellectual property owner.’
Such goods are also commonly called ‘parallel imports.’”
Kirtsaeng v. John Wiley & Sons, Inc., 133 S. Ct. 1351, 1379 n.9
(2013) (internal citation omitted).


                                           3
Unfortunately for Elasmar, his illicit drug business ended when

he sold an undercover Department of Homeland Security (“DHS”)

agent    three    bulk    counterfeit   drug       orders.      After    a     search

following the drug buys found several hundred pills, Elasmar

agreed to cooperate with investigators.

        Elasmar turned over his supplier’s telephone number, which

DHS traced to Zayyad.          Then, at the authorities’ behest, Elasmar

twice ordered drugs from Zayyad.                 In the first buy, Elasmar

bought    500    Viagra   pills   for   $4   a     pill,   a   price    well    below

wholesale.       About a month later, DHS had Elasmar place a second

order -- this time for both Viagra and Cialis -- for 700 pills

at $4 a pill.

        When Zayyad delivered the second batch of pills to Elasmar,

police detained him and discovered more than 800 pills in the

glove box and sunglasses holder of Zayyad’s van.                       One set of

pills was concealed in a brown paper bag, while another set was

wrapped in a blue paper towel; all were in plastic bags.                         The

pills had the outward appearance of a genuine Viagra or Cialis

pill, but they lacked any prescriptions, prescription bottles,

product literature, lot numbers, or invoices.                    Zayyad admitted

to law enforcement that he had planned to resell hundreds of the

pills    to   someone     in   Charlotte,    but    refused    to   identify     who

supplied them to him in the first place.



                                        4
       Police      visited    Zayyad’s        house    on     the   same     day    as    the

traffic stop.        When a woman answered the door, agents asked for

permission to search the home.                     The woman consented, but only

after she closed the door, stayed inside for ten minutes, and

came back wearing a damp shirt.                    Perhaps alerted by the woman’s

wet clothing, agents searched a bathroom near the front of the

house, finding a yellowish pill on the rim of a toilet equipped

with an “industrial strength flushing system.”                        (J.A. 759.)

       As noted, some of the pills seized from Zayyad’s van and

home looked similar to genuine Viagra and Cialis pills, with the

same shapes, colors, and imprints as genuine pills.                               But other

pills did not have the right color tone, shape, or embossing.

Notwithstanding       outward        appearances,          chemical      analyses    showed

that   the    pills    contained        incorrect          compositions      and    active-

ingredient levels; many of the counterfeit Cialis pills also

incorrectly        contained      the    active      ingredient       of    Viagra.       At

trial,     specialists        from      the    Food    and     Drug      Administration,

Pfizer, and Eli Lilly testified that all the pills that they

sampled were counterfeit.



                                              B.

       A   grand    jury     in   the   Western       District      of    North    Carolina

initially       indicted      Zayyad      on       seven    counts:        one    count   of

conspiracy to traffic in and dispense counterfeit drug products,

                                               5
three    counts   of   trafficking    in       counterfeit    goods,     and     three

counts of selling and dispensing counterfeit prescription drugs.

     At Zayyad’s trial in December 2011, the Government relied

principally    on   the   nature     of    the      transactions    --   unpackaged

pills from an illegitimate source -- to show that Zayyad knew

that the pills that he sold were fake.                     For his part, Zayyad

tried to suggest through cross-examination that he believed the

pills came from the gray market.                 In particular, Zayyad cross-

examined Government witnesses from Pfizer, Eli Lilly, and DHS

who conceded that Pfizer and Eli Lilly manufactured and sold

Viagra and Cialis abroad at cheaper prices.                  They also admitted

that persons      sometimes      import    foreign-manufactured          pills   into

the United States.         In addition, evidence at the first trial

showed that Zayyad told Elasmar that the pills were real; no

evidence    indicated     that   Zayyad       had   ever   said    the   pills   were

fake.

     After the jury began deliberating, it asked the district

court whether “knowing [that the pills] were ‘counterfeit’ [was]

a requirement of the charge of violation in Counts Two through

Seven.”    (J.A. 532.)      The court reiterated that the offenses did

include a knowledge element.              The jury then deliberated further

before announcing that it had deadlocked.                     A modified Allen 2


     2
          Allen v. United States, 164 U.S. 492 (1896).


                                          6
charge failed       to    break     the   deadlock,      and   the   district       court

declared a mistrial.



                                            C.

     After the mistrial, the grand jury issued a superseding

indictment    that       narrowed     the        conspiracy    count’s      scope     and

eliminated    two        counts.          The     new   indictment        contained    a

conspiracy    count,       two     counts       of   trafficking     in    counterfeit

goods, and two counts of selling and dispensing prescription

drugs.

     Before the second trial, the Government moved to preclude

Zayyad from “attempting to raise during the Government’s case-

in-chief, through cross-examination or otherwise, any evidence

or argument regarding an alleged ‘diversion market’ or ‘grey

market’       for          genuine,          non-counterfeit,             prescription

medications[.]”          (J.A. 565.)        The Government represented to the

district   court     that     the    gray-market        evidence     would    only    be

relevant if, for instance, “the defendant were to testify during

the defense case regarding his state of mind, that is, that he

believed the Viagra and Cialis pills he sold were genuine pills

from a specific ‘diversion market’ or ‘grey market’ channel[.]”

(J.A. 570.)

     Zayyad responded that he should be permitted to use “gray

goods” evidence to establish an “affirmative defense,” namely

                                            7
“that the purported Viagra and Cialis [pills] at issue are ‘gray

goods[.]’”       (J.A. 651.)        Put differently, Zayyad wanted to use

evidence establishing a gray market for prescription pills to

argue that some of the pills that police seized from him could

be genuine.         He contended that “the vast majority of the more

than 2,000 purported counterfeit Viagra and Cialis tablets at

issue . . . ha[d] never been authenticated[.]”                         (J.A. 653.)    And

he argued that the Government’s approach would impair his Sixth

Amendment       rights     to    confrontation       and       Fifth     Amendment    due

process rights by forcing him to testify.

       The    district      court       granted    the    Government’s       motion    in

limine and determined the gray-market issue was not relevant

under Federal Rule of Evidence 401, as “there [was] no evidence

that   shows     that    the     defendant       possessed     any     genuine   pills.”

(J.A. 660.)         In addition, the court excluded the evidence under

Federal Rule of Evidence 403, concluding “that concerns about

confusion of the issues, misleading the jury, and considerations

of   waste     of   time”       would    overwhelm       the   evidence’s     probative

value.       (J.A. 660.)



                                            D.

       At the second trial, the Government presented much the same

basic evidence of Zayyad’s knowledge as in the first trial: he

sold the pills cheaply, kept them in plastic bags, and made them

                                             8
available without a prescription.                    In response, defense counsel

argued that Zayyad’s “intent was to sell real Viagra and Cialis,

and there’s no evidence in this trial to the contrary.”                                 (J.A.

907.)      Further,      Zayyad     maintained           that       “[i]t     would    take     a

forensic chemist, pharmacist, or some other person trained . . .

to look at any pill and be able to know that it’s counterfeit on

sight.”    (J.A. 908.)

     Upon closure of the evidence, Zayyad moved for a judgment

of acquittal, which the district court denied.                                The jury then

convicted Zayyad on all counts, and the district court sentenced

him to 24 months in prison.               Zayyad timely appeals, and we have

jurisdiction under 28 U.S.C. § 1291.



                                           II.

     Zayyad      first    argues        that       the    district          court    erred    in

precluding him from introducing evidence about a “gray market”

or   “diversion     market”        in    Viagra          and       Cialis    pills.          That

evidence, Zayyad contends, was relevant because it could have

established that he reasonably believed that he dispensed real

prescription     drugs.       He    separately            argues      that     the    district

court could not exclude the gray-market evidence under Rule of

Evidence   403    because    it     substantiated              a    central    part    of    his

case.



                                               9
       We note at the outset that Zayyad frames his argument too

broadly.      The      district       court        did     not       preclude        Zayyad     from

introducing         all    evidence       concerning             a      gray   market.           The

Government’s motion in limine only requested a limit on cross-

examination, and the district court’s order granted that motion

in limine.       At oral argument, counsel for Zayyad suggested that

it    would     have      been   futile       to    try       to     introduce        gray-market

evidence during the defendant’s case-in-chief given the court’s

ruling on the motion in limine.                           But Zayyad never tried to

introduce any evidence during his case-in-chief, never raised

the    possibility         of    doing     so,       and      never       made       any   proffer

regarding        gray-market           evidence          to        the     district            court.

Therefore, we treat the district court’s order as what it was: a

limit on Zayyad’s right to cross-examine and nothing more.



                                               A.

       Before considering the merits of Zayyad’s claims, we first

examine the appropriate standard of review.

       Normally,       “[w]e     review    for       abuse         of    discretion        a   trial

court’s    limitations           on   a   defendant’s              cross-examination            of   a

prosecution witness.”                 United States v. Ramos-Cruz, 667 F.3d

487, 500 (4th Cir. 2012); see also United States v. Leeson, 453

F.3d 631, 636 (4th Cir. 2006) (“We review a district court’s

ruling     on       the     admissibility           of        evidence         for     abuse         of

                                               10
discretion.”).             “A        district      court       abuses    its     discretion      by

resting    its        decision         on    a     clearly      erroneous        finding    of   a

material fact, or by misapprehending the law with respect to

underlying          issues      in     litigation.”             Scott     v.     Family    Dollar

Stores,    Inc.,          733    F.3d       105,    112    (4th       Cir.     2013)    (internal

quotation marks omitted).

     The    initial          question        is    whether       this    abuse-of-discretion

standard       applies          --     because       Zayyad          preserved    his     present

argument       –-    or    whether          the    plain-error         standard        applies   –-

because he did not.                  See United States v. Jones, 716 F.3d 851,

855 (4th Cir. 2013) (“We generally limit our review of claims

not properly preserved in the district court to plain error.”).

     To    preserve          an      argument       on    appeal,       the     defendant    must

object    on    the       same       basis    below      as     he    contends    is     error   on

appeal.        Because          he    must    “state[]         the    specific    ground”    upon

which he objects below, Fed. R. Evid. 103(a), “an objection on

one ground does not preserve objections on different grounds” on

appeal, United States v. Massenburg, 564 F.3d 337, 342 n.2 (4th

Cir. 2009).          So, even if a defendant invokes the same rule in

both instances, he may still waive his claim if he fashioned his

argument differently.                  See, e.g., United States v. Pratt, 239

F.3d 640, 644 (4th Cir. 2001) (reviewing for plain error where

defendant      objected          below       to    use    of    co-conspirator         statements



                                                   11
under    Federal       Rule     of    Evidence       801(d)(2)(E)            but     pressed

different aspect of the same rule on appeal).

       We agree with the Government that Zayyad likely did not

preserve his present argument below.                  Before the district court,

Zayyad argued that gray-market evidence could raise doubts as to

whether the pills were in fact counterfeit.                         Indeed, even after

the    district      court    ruled    on    the    motion     in    limine        regarding

cross-examination, defense counsel stressed again that the gray-

market   evidence      went     to    whether      the    pills      were    counterfeit.

Zayyad never raised any argument that the gray-market evidence

went    to    show   his     knowledge      that    the    pills     were     gray-market

items.       Yet this argument is the claim that he makes on appeal

and that it appears he did not preserve in the district court.

       Nonetheless, we need not decide that issue.                            Even if we

assume that Zayyad preserved the argument that he now makes, it

fails under the abuse-of-discretion standard.                        See, e.g., United

States       v.   Palacios,    677    F.3d    234,       245   n.6    (4th    Cir.    2012)

(assuming that defendant preserved evidentiary objections where

arguments failed even under preserved error standard).



                                             B.

       District      courts    may    “place       limitations        upon    the     cross-

examination of . . . witnesses.”                   United States v. Janati, 374

F.3d 263, 274 (4th Cir. 2004).                     They may impose these limits

                                             12
“based on concerns including harassment, prejudice, confusion of

the issues, repetition, or marginal relevance.”                      United States

v. Turner, 198 F.3d 425, 429 (4th Cir. 1999).                     They enjoy “wide

latitude” in doing so.         Id.

       The district court did not allow Zayyad to cross-examine

Government      witnesses   on   the    gray      market   in     part    because    the

court determined that such testimony would be irrelevant.                           “[A]

defendant can only cross-examine a prosecution witness if the

information sought to be elicited is relevant.”                          United States

v.    Maxwell,    579   F.3d   1282,    1296       (11th   Cir.    2009)     (internal

quotation marks and alterations omitted); see also Fed. R. Evid.

402    (“Irrelevant     evidence       is    not    admissible.”).            We    deem

evidence relevant only if “it has any tendency to make a fact

more or less probable than it would be without the evidence” and

“the fact is of consequence in determining the action.”                        Fed. R.

Evid. 401.       Although this “threshold for relevancy is relatively

low,” United States v. Powers, 59 F.3d 1460, 1465 (4th Cir.

1995), we rarely reverse relevancy decisions because they “are

fundamentally a matter of trial management,” United States v.

Benkahla, 530 F.3d 300, 309 (4th Cir. 2008).

       Zayyad    contends      that    his       gray-market      cross-examination

would have been relevant to his principal defense: that he did

not know that he was peddling counterfeit pills.                          And indeed,

both charged substantive offenses include a knowledge element.

                                            13
“To obtain a conviction under [18 U.S.C.] § 2320(a) [for using a

counterfeit mark], the [G]overnment was required to prove that

[Zayyad] . . . knew the mark [on the pills] was counterfeit.”

United     States       v.    Chong     Lam,    677    F.3d       190,   197-98    (4th      Cir.

2012).       Likewise,             because    the     felony      offense    of    dispensing

counterfeit drugs requires that the defendant act “with intent

to defraud or mislead,” 21 U.S.C. § 333(a)(2), the defendant

must at     least       have        knowledge       that    his   drugs     are   mislabeled.

See, e.g., United States v. Vitek Supply Corp., 144 F.3d 476,

486 (7th Cir. 1998) (“To act with this intent [to defraud or

mislead], [defendants] must have had knowledge of the essential

nature      of    the        alleged         fraud.”       (internal       quotation      marks

omitted)).

      But    Zayyad’s          proposed        cross-examination            was    irrelevant

because     it    did    not        connect    to    the     knowledge      element     of    the

charged offenses.                  “Unless there is a connection between the

external facts and the defendant’s state of mind, the evidence

of   the    external         facts     is     not    relevant.”          United    States     v.

Curtis,     782     F.2d       593,    599     (6th        Cir.   1986).      Zayyad      never

suggested -- through his own testimony, testimony from other

witnesses, documentary evidence, proffer, or otherwise -- that

he   believed      he        was    selling     gray-market        drugs.         Nor   did   he

establish his own awareness of the gray market.



                                                14
     We    have     previously        recognized          that    a    defendant     cannot

distract the jury by introducing evidence concerning a potential

defense that he never raised.                   Relevance, after all, must “be

determined in relation to the charges and claims being tried,

rather than in the context of defenses which might have been

raised but were not.”                United States v. Hedgepeth, 418 F.3d

411, 419 (4th Cir. 2005).               If the defendant wants to present a

theory or belief that might have justified his actions, then he

must present evidence that he in fact relied on that theory or

belief. See, e.g., United States v. Kokenis, 662 F.3d 919, 927

(7th Cir. 2011) (“[The defendant] offered no evidence that he

actually    relied      on    the    pooling       capital       theory,   so   testimony

about the theory would be irrelevant, confusing, and perhaps

even misleading.”); cf. Havee v. Belk, 775 F.2d 1209, 1225 (4th

Cir. 1985) (holding that account summary could not be used to

prove   the    knowledge       of    debtor       and    transferees,      where     record

contained     no    evidence        that     debtor       or     transferees     saw   the

summary).      Otherwise, a defendant could introduce evidence that

would invite the jury to speculate a non-existent defense into

existence.

     As    the     Government       notes,      we      often    see   these    principles

applied in tax evasion cases.                   In one such case, we affirmed a

district      court’s        decision      to     limit        cross-examination       that

purportedly      went    to    the    defendants’          knowledge.          See   United

                                             15
States v. Jinwright, 683 F.3d 471, 483 (4th Cir. 2012).                                  The

defendants        there        wanted     to        cross-examine         lay    witnesses

concerning       the    witnesses’       beliefs       that    certain     payments      were

non-taxable “gifts.”             Id.     But because the defendants did not

establish    that       they    relied    on    such     a    belief,      we   deemed   the

evidence irrelevant.             Id.; accord United States v. Powell, 955

F.2d 1206, 1214 (9th Cir. 1992); United States v. Harris, 942

F.2d 1125, 1132 n.6 (7th Cir. 1991); see also United States v.

Dynalectric       Co.,    859    F.2d    1559,        1574    n.19    (11th     Cir.   1988)

(upholding district court’s exclusion of evidence of economic

conditions as irrelevant in bid-related case, where defendants

were not shown to have relied on those conditions in making

bid).     Just as in that case (and the many cases like it), the

record before us contains no evidence of any actual reliance on

Zayyad’s    part       that    would    justify       the     use   of   the    explanatory

gray-market evidence.            The district court did not err in barring

cross-examination regarding that evidence, where there was no

connection        to     the    knowledge           element     and      consequently     no

relevance.



                                               C.

     Zayyad objects that forcing him to summon other evidence in

support     of    his     gray-market      contention           raises     constitutional

concerns.        He insists that we should not force him to waive his

                                               16
constitutional        right    not    to     testify      before    allowing      him     to

present otherwise relevant evidence.

       At bottom, Zayyad complains of the burdens of presenting

his chosen defense.           A defendant may struggle with how to attack

an element that involves his own state of mind, particularly

when he lacks contemporaneous evidence of that state of mind.

But a defendant’s rights “would not be violated simply because

he     had    to   choose     between      not     testifying       and    laying       [the

required] foundation.”             Kokenis, 662 F.3d at 927.               “Evidence by

its    nature      builds   pressure       to     rebut   it   --   that’s      what     the

adversary system is about.              That the defendant faces a dilemma

demanding a choice between complete silence and presenting a

defense      has   never    been    thought       an   invasion     of    the   privilege

against compelled self-incrimination.”                    United States v. Kelly,

592 F.3d 586, 594 (4th Cir. 2010) (internal quotation marks and

alterations omitted).              Zayyad cannot use the privilege against

self-incrimination as a means to free himself from the basic

rules of relevancy.



                                             D.

       Even if we could deem this evidence relevant, we could not

say    that     the   district       court      committed      reversible       error    by

directing the evidence to Zayyad’s case-in-chief.                               The court

gave    Zayyad      the    opportunity       to    present     gray-market       evidence

                                             17
outside of cross-examination.             But, for reasons known only to

him, Zayyad chose to forego that course.                 Zayyad’s “failure to

do so rests squarely on [his] shoulders.”                 Jinwright, 683 F.3d

at 483; see also United States v. Stadtmauer, 620 F.3d 238, 272-

73 (3d Cir. 2010) (explaining that district courts may direct

the     defendant    to     present    relevant     evidence     outside       cross-

examination).

      Moreover,     the     district    court    permitted   Zayyad       to   cross-

examine Government witnesses on other topics.                       For instance,

Zayyad pointed out weaknesses in the witnesses’ analyses, and he

highlighted the difficulties in distinguishing between real and

genuine pills.         Because Zayyad could attack the Government’s

witnesses     on    other    grounds     and     could   raise      his   preferred

argument in his own case, “the district court acted well within

its   discretion”      to    limit     cross-examination       on    a    particular

theory.     United States v. Smith, 44 F.3d 1259, 1269 (4th Cir.

1995)     (affirming      district     court’s    decision     to    limit     cross-

examination on particular subject where defendant could raise

evidence concerning the same subject in her case-in-chief and

could cross-examine witness on other matters).



                                         E.

      The district court alternatively ruled that the gray-market

cross-examination evidence should be excluded under Federal Rule

                                         18
of Evidence 403.           Under that rule, courts may exclude relevant

evidence “if its probative value is substantially outweighed by

a   danger    of,”     among       other    things,       “confusing     the    issues,

misleading the jury, . . . [or] wasting time.”                         Fed. R. Evid.

403.     “It is not an easy thing to overturn a Rule 403 ruling on

appeal.”     United States v. Lentz, 524 F.3d 501, 525 (4th Cir.

2008)     (internal    quotation          marks     omitted).         Certainly,      the

“balance     under     Rule        403     should    be     struck     in     favor    of

admissibility, and evidence should be excluded only sparingly.”

Id. (internal quotation marks omitted).                    But a district court’s

judgment     concerning       where       that    balance    lies      “will    not   be

overturned except under the most extraordinary circumstances.”

Id. (internal quotation marks omitted).

       In Zayyad’s case, the district court correctly determined

that the gray-market evidence would confuse, mislead, and waste

time.      The evidence would have distracted the jury from its

principal    purpose:       assessing        Zayyad’s      subjective       belief    and

actual knowledge.          Instead, it threatened to lead the jury into

pure     speculation       based     on    no     foundational       evidence    as   to

Zayyad’s state of mind.             Jurors might have been led to question

whether a reasonable person could have known or believed that

his pills came from the gray market.                  Yet, at least lacking any

evidence from Zayyad that he believed that he was selling gray-

market    pills,     the    jury’s        inquiry    would    have     been     complete

                                            19
guesswork.        The     trial       judge       appropriately          avoided    that

possibility under its Rule 403 ruling.

     For all the reasons noted above, the district court did not

err in barring Zayyad’s proposed cross-examination.



                                           III.

     In his second argument, Zayyad contends that the Government

provided insufficient evidence to prove the knowledge element of

the charged offenses.          Zayyad notes that he never confessed to

knowing    that   the   pills       were    fake,    and    no     one   recorded    him

admitting that the pills were counterfeit.                       And in what Zayyad

calls the most “on-point” direct evidence (Appellant’s Br. 29) -

- his statements upon arrest and his statements to Elasmar –-

Zayyad    indicated     that   he    believed       the    pills    were    real.     In

contrast, Zayyad says, all of the Government’s circumstantial

evidence was equally consistent with a seller who was selling

pills purchased from the gray market.



                                            A.

     “We review de novo the district court’s decision to deny a

defendant’s Rule 29 motion for judgment of acquittal.”                             United

States v. Royal, 731 F.3d 333, 337 (4th Cir. 2013).                         “[I]nsofar

as [Zayyad] challenges the jury’s finding that the [G]overnment

adequately proved the relevant offense element, we review that

                                            20
argument for sufficiency of the evidence.”                    United States v.

Day, 700 F.3d 713, 725 (4th Cir. 2012).

     “On an appeal challenging the sufficiency of evidence, we

assess     the   evidence     in    the    light    most     favorable     to   the

government,      and   the    jury’s      verdict   must      stand   unless     we

determine that no rational trier of fact could have found the

essential    elements    of   the    crime     beyond   a   reasonable     doubt.”

Royal, 731 F.3d at 337.        Stated plainly, a sufficiency challenge

presents a “heavy burden,” which a defendant will only overcome

in “cases where the prosecution’s failure is clear.”                        United

States v. McLean, 715 F.3d 129, 137 (4th Cir. 2013) (internal

quotation marks omitted).



                                          B.

     Viewed in the light most favorable to the Government, the

evidence    sufficiently      established       Zayyad’s      knowledge.        The

Government’s circumstantial fact evidence allowed the jury to

reasonably infer that the pills were counterfeit.                 The pills did

not come with traditional packaging or materials, and came at a

very low price, in enormous volumes, from sources that one would

not normally expect to have legitimate pills.                 These facts would

indicate that the pills were illegitimate.                  Zayyad also hid the

pills in his van and evidently had help in destroying additional

pill evidence at his home.             The later attempt to conceal the

                                          21
pills further indicates awareness that the pills were unlawful.

See United States v. Sasso, 695 F.3d 25, 29 (1st Cir. 2012)

(“[A]n attempt to cover up the commission of a crime implies

consciousness of guilt.             Here, the jurors could reasonably infer

consciousness of guilt (and, thus, intent) from the defendant’s

endeavor to conceal his possession of the [instrument of the

crime.]” (internal citations omitted)).                 All these facts allowed

the jury to infer knowledge of false pills on Zayyad’s part.

See, e.g., United States v. Hassan, 280 F. App’x 271, 274 (4th

Cir.    2008)   (unpublished)          (holding    that       evidence     supported

counterfeit     drug    convictions       where,   among      other     things,   (1)

defendant     admitted        he    obtained    pills    from    an     illegitimate

source; (2) pills came in illegitimate packaging; and (3) pills

came in abundant supply).

       At the very least, a jury could have reasonably concluded

that Zayyad willfully blinded himself to the reality that the

pills were counterfeit.             A jury may rely upon willful blindness

“when the defendant asserts a lack of guilty knowledge but the

evidence supports an inference of deliberate ignorance.”                      United

States v. Ruhe, 191 F.3d 376, 384 (4th Cir. 1999) (internal

quotation marks omitted); cf. United States v. Poole, 640 F.3d

114,   122    (4th     Cir.    2011)    (explaining      in     tax    context    that

“willful     blindness”       can    satisfy    scienter      element     “when   the

evidence     supports     an        inference    that    [the]        defendant    was

                                          22
subjectively aware of a high probability of the existence of

. . .    liability”).            “[P]roof      of   actual    knowledge        is     not

necessary if the defendant was willfully blind.”                       United States

v. Wells, 163 F.3d 889, 898 (4th Cir. 1998).                       And evidence like

that    found    here      –-    no   documents      for     the     drugs,    strange

packaging,      discreet         transactions,      and      prices     well        below

wholesale       –-   all        suggest     that    Zayyad      was     deliberately

indifferent to the fact that his drugs were counterfeit.                             See,

e.g., United States v. Ali, 735 F.3d 176, 188 (4th Cir. 2013)

(listing     lack    of     documentation,          “unmarked       packages,”        and

“discreet handoffs” among facts supporting inference of willful

blindness); United States v. Dais, No. 91-5820, 1992 WL 14595,

at *2 (4th Cir. Jan. 31, 1992) (unpublished) (noting that low

prices of goods should have suggested to defendant who purchased

them that goods were illegal).



                                          C.

       Zayyad insists that the Government’s evidence supports an

innocent inference that he believed that he was trafficking in

legitimate, gray-market goods.              That’s beside the point.

       For one thing, Zayyad did not introduce evidence concerning

gray-market goods at his second trial, and we can consider only




                                          23
evidence from the second trial. 3                      Zayyad asks us to judicially

notice that a gray market exists, but we do not take judicial

notice      of    a     purported      fact    merely       because     a    party    tried      to

establish it at a prior trial.                       “Only indisputable facts,” after

all, “are susceptible to judicial notice.”                           Nolte v. Capital One

Fin.       Corp.,     390     F.3d     311,    317    n.*     (4th   Cir.    2004).           Under

Federal          Rule     of     Evidence        201(b),        facts       are      considered

indisputable when they are “generally known within the trial

court’s territorial jurisdiction” or they “can be accurately and

readily       determined          from       sources     whose       accuracy        cannot     be

reasonably questioned.”                  But “[f]acts adjudicated in a prior

case,” or in this instance, a prior trial in the same case, “do

not    meet       either       test     of    indisputability         contained          in   Rule

201(b)[.]”              Int’l    Star     Class       Yacht    Racing       Ass’n     v.      Tommy

Hilfiger U.S.A., Inc., 146 F.3d 66, 70 (2d Cir. 1998).

       For another thing, it does not matter that the Government’s

evidence         also    supported       innocent       inferences.         “[A]s    a     general

proposition,            circumstantial          evidence       may    be      sufficient        to

support a guilty verdict even though it does not exclude every

reasonable hypothesis consistent with innocence.”                              United States

v.     Osborne,         514     F.3d    377,    387     (4th     Cir.       2008)     (internal


       3
       Our review of the record reveals no stipulation or similar
agreement to incorporate any facts from the first trial into the
second trial.


                                                24
quotation       marks     and     alterations            omitted).         “The    jury    was

entitled    to     reject      the    theory        consistent     with      innocence      and

accept    the     one    consistent       with      guilt,    so     long    as    there    was

substantial evidence for its choice.”                       United States v. Garcia,

868 F.2d 114, 116 (4th Cir. 1989).

      Zayyad’s         “direct”      evidence       --    namely     his    own    statements

that the drugs were real -- does not matter either.                               Here again,

Zayyad mentioned these statements at the first trial, but not

the second.            Even had the statements appeared at the second

trial,     we    would     not     decide      differently.            “[C]ircumstantial

evidence is not inherently less valuable or less probative than

direct evidence[.]”              United States v. Martin, 523 F.3d 281, 289

(4th Cir. 2008) (internal quotation marks omitted).                                 The jury

had   every       right     to     disregard        “direct”       evidence        supporting

Zayyad’s theory in favor of the Government’s equally weighty

circumstantial facts supporting his guilt.                            In fact, the jury

had   a   rational        reason     to   do    so:        Zayyad’s        statements      were

untrustworthy because he had a motive to lie to both his buyer

(to fetch a better price for his product) and the police (to

escape weightier charges).                   See Hassan, 280 F. App’x at 274

(finding        that    jury     could    infer          defendant’s       knowledge       from

defendant’s        insistence         that     the        pills    were      effective       to

potential purchasers, as “there would be no need for him to

vouch for the pill’s effectiveness” had the pills been genuine).

                                               25
     Accordingly, Zayyad’s challenge to the sufficiency of the

evidence fails.     The district court did not err in denying his

Rule 29 motion.



                                   IV.

     For   the   reasons   set   forth   above,   the   district   court’s

judgment is

                                                               AFFIRMED.




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