     Case: 10-60600     Document: 00511516014          Page: 1    Date Filed: 06/21/2011




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                            June 21, 2011

                                       No. 10-60600                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff – Appellee
v.

NICK C. TRAN,

                                                   Defendant – Appellant




                    Appeal from the United States District Court
                      for the Southern District of Mississippi
                              USDC No. 1:08-CR-66-3


Before KING, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM:*
        After a partial acquittal in his first trial, Defendant Nick C. Tran, a
pharmacist, was convicted in a second trial of charges related to the distribution
of controlled substances outside the scope of professional practice. The district
court denied his post-verdict motion for a judgment of acquittal or, in the
alternative, for a new trial. He now appeals that denial on the grounds that: (1)
his second trial violated the Double Jeopardy Clause; (2) the court erred in
excluding evidence of racial bias on the part of Government investigators; and

        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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(3) the court erred in refusing him permission to recall a Government witness.
We affirm.
              FACTUAL AND PROCEDURAL BACKGROUND
      Nick C. Tran was a licensed pharmacist who owned and operated a
business called Tran’s Pharmacy in Biloxi, Mississippi.       Over time, Tran’s
Pharmacy filled an increasing number of its prescriptions from the Family
Medical Center, a medical practice operated by Drs. Thomas Trieu and Thu-Hoa
Victoria Van. By 2007, the Family Medical Center accounted for ninety-eight
percent of the pharmacy’s controlled substance prescriptions. Prescriptions for
these highly abused substances—namely promethazine with codeine (a narcotic
cough syrup), alprazolam (also known by its brand name “Xanax”), and
hydrocodone (also known by its brand name “Lortab”)—written by Dr. Trieu and
filled at Tran’s Pharmacy—rose from a few hundred to seven or eight thousand
between 2003 and 2007. The Family Medical Center and Tran’s Pharmacy also
saw a large increase in out-of-market patients, including some from neighboring
Alabama.
      The Drug Enforcement Agency (“DEA”) began investigating the Family
Medical Center and Tran’s Pharmacy and eventually raided both businesses,
arresting Tran as well as the two doctors. Tran was indicted on forty-three
separate counts of dispensing or distributing controlled substances outside the
scope of professional practice, nine counts of dispensing or distributing
controlled substances outside the scope of professional practice to persons under
21 years of age, one count of conspiracy to dispense or distribute such substances
outside the scope of professional practice, and one count of maintaining a place
for the purpose of manufacturing, distributing, or using any controlled substance
outside the scope of professional practice.
      After a two-week trial in March 2010, the jury acquitted Tran of the forty-
three counts alleging dispensing or distributing controlled substances outside

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the scope of professional practice. However, the jury failed to reach a verdict on
the conspiracy charge, the premises charge, and the nine counts concerning the
dispensing or distributing controlled substances to individuals under the age of
21.
       Following this partial acquittal, Tran moved on double jeopardy grounds
to dismiss those portions of the indictment on which the jury failed to reach a
verdict. The court denied this motion. Tran was re-indicted on the conspiracy
charge, the premises charge, eleven counts of dispensing or distributing
controlled substances outside the scope of professional practice to persons under
21 years of age, and eleven counts of dispensing or distributing controlled
substances that were different from the forty-three counts in the previous
indictment on which he was acquitted. The district court denied Tran’s motion
to quash this second indictment on double jeopardy grounds, and the case went
to trial.
       After the second jury found Tran guilty on all counts, Tran moved for a
judgment of acquittal or, in the alternative, for a new trial on the following
assignments of error: (1) the second trial violated his constitutional protection
against double jeopardy; (2) he should have been permitted to introduce evidence
supporting his theory that he was targeted for prosecution because of his
ethnicity; and (3) he should have been permitted to recall a Government witness
to address matters not covered during the Government’s direct examination of
that witness. The district court denied this motion, and Tran was sentenced to
ten years’ imprisonment and four years’ supervised release. He now appeals
from the district court’s order denying his motion for a judgment of acquittal or,
in the alternative, for a new trial.




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                                 DISCUSSION
      I.    Double Jeopardy
      Tran argues that his conviction must be reversed because his second trial
violated his Fifth Amendment right to be free of double jeopardy. This court
reviews de novo the constitutional issue of double jeopardy. United States v.
Cluck, 87 F.3d 138, 140 (5th Cir. 1996) (per curiam).
      The question whether Tran’s second trial violated the Double Jeopardy
Clause is governed by Ashe v. Swenson, 397 U.S. 436 (1970). In Ashe, the
petitioner (Ashe) was accused of participating in the robbery of a group of poker
players and was indicted for the robbery of one of the players. Id. at 437–38.
The only contested issue at trial was whether he had actually been one of the
robbers. Id. at 438. Ashe was acquitted, but the state later separately indicted
him for the robbery of another one of the poker players. Id. at 439. The second
jury convicted. Id. at 440. The Supreme Court held that the Double Jeopardy
Clause incorporates the doctrine of collateral estoppel, and thereby precludes the
government from relitigating any issue that was necessarily decided by a jury’s
acquittal in a prior trial. Id. at 445–47. Straightforward application of this
principle led to the conclusion that Ashe’s second prosecution violated his
constitutional protection against double jeopardy because it relitigated the
conclusion—necessarily decided by the jury in the first trial—that Ashe had not
been one of the robbers. Id. at 445.
      This court has interpreted Ashe to require a twofold inquiry for analyzing
double jeopardy claims. First, the court must determine what, if anything, the
jury necessarily decided in the first trial. Bolden v. Warden, W. Tenn. High Sec.
Facility, 194 F.3d 579, 583–84 (5th Cir. 1999). In making this determination, a
court must “examine the record of a prior proceeding, taking into account the
pleadings, evidence, charge, and other relevant matter, and conclude whether
a rational jury could have grounded its verdict upon an issue other than that

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which the defendant seeks to foreclose from consideration.” Ashe, 397 U.S. at
444 (citation and internal quotation marks omitted). Second, a court must
determine “whether the facts necessarily decided in the first trial constitute
essential elements of the offense in the second trial.” Bolden, 194 F.3d at 584.
      Tran characterizes the first inquiry as a simple one because he alleges that
he only contested one issue at trial: whether his actions were knowing or
intentional. According to Tran, the jury’s acquittal on the forty-three counts
alleging distribution to specific persons age 21 and over was a general
determination that Tran did not have the intent to distribute controlled
substances outside the scope of his professional practice to anyone at any time
during the relevant conspiracy period. Tran concludes that the Government is
thus barred from retrying him on any charge during the time frame of the
alleged conspiracy that relies on the theory that Tran’s dispensations of
controlled substances occurred knowingly and intentionally.
      The Government argues that Tran contested more than the element of
intent, pointing to Tran’s arguments that the DEA agents targeted him because
of his race, his challenges to the Government’s use of undercover agents, and his
attempts to otherwise show that the undercover agents’ actions involved
offensive conduct. The Government therefore suggests that the jury’s acquittals
as to individuals age 21 and older may have reflected a decision other than a
determination that Tran lacked the intent to distribute to those persons, arguing
that “it is entirely conceivable that the jurors—dissatisfied with the undercover
aspect of the Government’s case and unable to recall which counts were
associated with the undercover agents—simply chose to vote to acquit as to all
counts involving persons age 21 and over based on the assumption that DEA
agents are necessarily at least age 21.”
      Neither of these arguments is persuasive. Because the jury failed to reach
a verdict as to whether Tran participated in a conspiracy to distribute controlled

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substances outside the scope of his professional practice, Tran is foreclosed from
arguing that the jury thereby necessarily determined that he lacked intent to
distribute such substances during the entire time frame of the conspiracy. See
Yeager v. United States, — U.S. —, 129 S. Ct. 2360, 2366–68 (2009) (holding that
a jury’s failure to reach a verdict on some counts is a “nonevent” that cannot, by
negative implication, inform the double jeopardy inquiry); see also United States
v. Whitfield, 590 F.3d 325, 371–72 (5th Cir. 2009).
      As for the Government’s argument, this court’s inquiry into the potential
rationale of the jury “must proceed on the basis that the jury in the first trial
acted in a legally correct manner.” De La Rosa v. Lynaugh, 817 F.2d 259,
267–68 (5th Cir. 1987); see also Ashe, 397 U.S. at 444 (courts must conclude
whether “a rational jury could have grounded its verdict upon an issue other
than that which the defendant seeks to foreclose from consideration” (citation
and internal quotation marks omitted) (emphasis added)); Garcia v. Dretke, 388
F.3d 496, 504 (5th Cir. 2004) (for double jeopardy purposes, a court’s analysis
“must stay within the bounds of a rational[ ] inquiry”). As this court reasoned
in United States v. Leach, 632 F.2d 1337 (5th Cir. 1980):
      Of course, the jury may have believed the Government’s case and
      still have acquitted [the defendant]. . . . In this case, it is not
      inconceivable that the jury might have been offended by the number
      of government witnesses who had been allowed to plead guilty to
      greatly reduced charges in return for their testimony, and might
      have felt it unfair to convict [the defendant] in light of the lenient
      treatment received by the others. However, if we consider jury
      nullification as a basis on which the jury might have acquitted [the
      defendant] . . . we would in effect be eliminating the entire doctrine
      of collateral estoppel and greatly weakening the protection against
      double jeopardy.
Id. at 1341 n.12. Although Tran raised several issues unrelated to the elements
of the crimes charged, we decline the Government’s invitation to speculate as to
any irrational reasons for the first jury’s acquittals.


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      Instead, “[t]o determine the facts necessarily decided in [a defendant’s]
first trial under the first step of the collateral estoppel analysis, [a court] must
examine the elements of the statutes under which [the defendant] was charged.”
Bolden, 194 F.3d at 584. The district court informed the jury that there were
three elements it had to find beyond a reasonable doubt in order to convict Tran
of possession with intent to distribute a controlled substance (the crime charged
in the forty-three acquitted counts): (1) that the defendant distributed or
dispensed a controlled substance; (2) that the defendant did so knowingly and
intentionally; and (3) that the defendant distributed or dispensed the controlled
substance without a legitimate medical purpose or that the defendant
distributed or dispensed the drug outside the usual course of his professional
practice. At trial, Tran contested only the second element regarding intent. The
jury was not instructed that the DEA’s use of undercover agents, the motives
behind the investigation, or any other evidence or suggestion Tran raised at trial
had any bearing on its determination of this second element. Therefore, the only
basis on which a rational jury could have acquitted Tran on those forty-three
counts was the Government’s failure to prove beyond a reasonable doubt that
Tran had the necessary intent to distribute as to those counts.
      In denying Tran’s motion for acquittal, the district court held that each
charge required an independent analysis, and that the effect of each acquittal
was limited to that particular individual on the particular date alleged in the
indictment.   Several analogous Fifth Circuit cases support this result.            In
Douthit v. Estelle, 540 F.2d 800 (5th Cir. 1976), the defendant was accused of
raping a woman in three different counties within a twenty-two hour time
period. The state indicted and tried him for the rapes that were allegedly
committed in Williamson County, although it introduced evidence at trial as to
the alleged criminal acts in all three counties. Id. at 802. The defendant’s main
defense was that the victim gave her consent. Id. The jury acquitted the

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defendant by a general verdict of not guilty. Id. The state then tried him for the
rape that was committed in Travis County, once again introducing evidence of
the criminal acts in all three counties. Id. This time, the jury convicted. Id.
      On appeal, the defendant argued that, because the state had introduced
evidence of all the assaults during the first trial, the first jury must necessarily
have found that the victim’s consent extended to all of his actions throughout the
three counties during the entire twenty-two hours. Id. at 804. The Fifth Circuit
disagreed, holding that the acts were “not only separate in the eyes of the law
[but also] separate in point of fact, being removed from each other by
considerable time, distance and circumstances.” Id. at 805. Specifically, the
issue of the consent of the victim to the assault in Travis County was a different
issue, both legally and factually, from the issue of the consent of the victim to the
assaults in Williamson County, which occurred the next day. Id. The court held
that distinction to be dispositive, stating that it was “not logically or legally
necessary for the first jury . . . by its general verdict of not guilty, to have decided
both issues of consent in favor of Petitioner.” Id. at 806. In other words, because
the first jury could have grounded its general verdict of acquittal solely upon a
finding that the victim consented to the assault in Williamson County, the state
was not foreclosed from prosecuting the defendant for the assault in Travis
County.
      In United States v. Griggs, 651 F.2d 396 (5th Cir. Unit B July 1981), the
defendant was indicted on three separate counts of passing counterfeit bills. At
trial, he averred that he was unaware that the bills were counterfeit. Id. at 398.
The court granted the defendant’s motion for directed verdict on one of the
counts, and the jury acquitted on the other two.             Id.   Subsequently, the
defendant was re-indicted on one count of conspiracy, two counts of sale, one
count of possession, and one count of attempt to pass counterfeit bills. The
attempt count was predicated on the same transaction on which the defendant

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had received a directed verdict in the first trial. Id. The defendant moved to
dismiss the indictment on double jeopardy grounds. Id. The Fifth Circuit held
that, while the attempt count was barred, the counts alleging conspiracy, sale,
and possession of counterfeit bills were not barred by the doctrine of collateral
estoppel because “it is entirely possible that the defendant had the requisite
knowledge on one occasion and not on another . . . .”        Id. at 400 (internal
quotation marks omitted).
      Like the issues of consent in Douthit and knowledge in Griggs, the issue
of intent in this case is a separate inquiry as to each count. Each of the forty-
three counts alleged that Tran illegally distributed drugs to a particular person
on a particular date. By acquitting Tran on these forty-three counts, the jury
necessarily determined that Tran lacked intent to illegally distribute drugs to
specific persons as identified on specific dates. However, this conclusion does not
constitute a determination that Tran lacked intent to illegally distribute drugs
to other persons on other dates. The forty-three acts charged in the first trial
were separate in the eyes of the law as well as being separate in point of fact
from the twenty-two acts charged in the second trial, “being removed from each
other by considerable time . . . and circumstances.” Douthit, 540 F.2d at 805.
Tran therefore fails to carry his burden to demonstrate that “the issue whose
relitigation he seeks to foreclose was actually decided in the first proceeding.”
Dowling v. United States, 493 U.S. 342, 350 (1990).
      The second step in the Ashe analysis is to decide whether the Government
seeks to relitigate the conclusion necessarily reached by the first jury through
any of the charges brought in the second trial. Accord Bolden, 194 F.3d at 584.
We hold that it does not. Charging Tran with new counts of distribution based
on specific and unique transactions not listed in the first indictment does not
require relitigation of Tran’s intent as to those transactions that were charged
in the first indictment.     Furthermore, the first jury’s acquittals did not

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necessarily rest on a finding that Tran did not participate in a conspiracy or on
a finding that he did not maintain a premises for the illegal distribution of
controlled substances. Finding that Tran conspired to distribute such controlled
substances, and finding that he maintained a premises for the distribution of
such substances, are not inconsistent with the first jury’s finding that he did not
intend to distribute such substances in the forty-three instances specified in that
indictment.
      We therefore hold that Tran’s second trial did not violate the Double
Jeopardy Clause, and the district court did not err in denying his motion for
judgment of acquittal, or in the alternative for new trial, on that basis.
      II.     Exclusion of Evidence of Racial Discrimination
      Prior to Tran’s second trial, the Government moved in limine to preclude
evidence of a race-based motive for the investigation of Tran on the ground that
such evidence was irrelevant under Rule 402 or that its probative value was
outweighed by the danger of unfair prejudice under Rule 403 of the Federal
Rules of Evidence. The district court granted the motion during the pre-trial
conference, stating that this case “has absolutely nothing to do with race.” Tran
argues that this ruling was in error.
      A.      Standard of Review
      As a threshold matter, the Government argues that Tran failed to preserve
this argument for appeal by making an offer of proof or by seeking to offer the
excluded evidence at trial, and that this court’s review should therefore be for
plain error only.
      “[N]either the Rules nor this Circuit require a formal offer to preserve
error.” United States v. Ballis, 28 F.3d 1399, 1406 (5th Cir. 1994). Therefore,
“the adequacy of a given informal proffer will necessarily depend on its
particular circumstances.”      Id.     Under the circumstances here, it was
unnecessary for Tran to make a formal offer of proof. Federal Rule of Evidence

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103(a)(2) provides that “[e]rror may not be predicated upon a ruling . . .
exclud[ing] evidence unless . . . the substance of the evidence was made known
to the court by offer or was apparent from the context within which questions
were asked.” Based on a review of the record, it is clear that the substance of the
evidence was known to the court. During the pre-trial conference in which the
court addressed the Government’s motion, the Government declined to argue its
motion, stating: “I think we have all discussed this in the previous trial, so I
won’t waste Your Honor’s time.” The court agreed, stating: “I have tried this
case, in essence, once already.”     Because the court had already essentially
received the offer of proof, in the form of the evidence Tran presented in the first
trial, “a renewed objection or offer of proof at the time the evidence is to be
offered [would have been] more a formalism than a necessity.” Fed. R. Evid. 103
Advisory Committee’s Note, 2000 Amendment.            Accordingly, the issue was
properly preserved for appeal and we review for abuse of discretion. Accord
Ballis, 28 F.3d at 1406–07.
      B.    Discussion
      Federal Rule of Evidence 401 defines “relevant evidence” as evidence
“having any tendency to make the existence of any fact that is of consequence to
the determination of the action more probable or less probable than it would be
without the evidence.” Although Tran admits that “the existence of racially
virulent motives would not necessarily have disproved the Government’s
allegations,” he argues that evidence of racial bias on the part of the DEA
investigators would “have cast doubt on the credibility of the DEA’s
investigation” and would have it more likely that “the DEA’s evidence regarding
Tran’s state of mind was slanted and unreliable.”
      In challenging the court’s refusal to permit such evidence, Tran relies on
case law relating to bias on the part of individual witnesses. However, Tran does
not allege that the court prevented him from impeaching any Government

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witness on the issue of bias; rather, he argues that he was targeted for
prosecution because of his race. This is an allegation of selective prosecution,
not of witness bias. Furthermore, Tran does not challenge the district court’s
additional finding that, even if the racial discrimination argument had some
slight relevance in this matter, it was substantially outweighed by the danger
of unfair prejudice and the danger of misleading the jury such that evidence
thereof should be excluded pursuant to Federal Rule of Evidence 403. We
therefore affirm the district court’s judgment granting the Government’s motion
in limine.
      III.   Refusal to Allow Tran to Recall a Government Witness
      Finally, Tran argues that his conviction should be reversed because the
district court improperly refused him permission to recall a Government witness
in order to address matters outside the scope of that witness’s direct
examination.   We review a district court’s decision on recall of a witness for
abuse of discretion. See United States v. Masat, 948 F.2d 923, 933 (5th Cir.
1991).
      As part of its case in chief, the Government called Sean Baudier, a DEA
investigator, to testify about the controlled substances seized from Tran’s
Pharmacy and about instructional materials regarding the Controlled
Substances Act that the DEA provides to pharmacists. After Tran’s counsel
cross-examined Baudier on these matters, Baudier was dismissed.           Tran’s
counsel later attempted to recall Baudier to question him about a tape recording
in which DEA agents allegedly discussed how to “drag Tran into the
investigation.” After allowing Tran’s counsel to conduct a proffer, the district
court denied the request to recall Baudier.
      Tran argues that, because his desired line of questioning lay outside the
scope of the Government’s inquiries on direct examination, he properly refrained
from cross-examining Baudier on this matter during the Government’s case-in-

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chief and should have been permitted to recall Baudier as a defense witness.
While Rule 611(b) of the Federal Rules of Evidence states that cross-examination
“should be limited to the subject matter of the direct examination and matters
affecting the credibility of the witness,” the Rule goes on to state that a court
“may, in the exercise of discretion, permit inquiry into additional matters as if
on direct examination.” See United States v. Wolford, 614 F.2d 516, 519 (5th Cir.
1980) (concluding that district court’s decision to allow cross-examination
outside the scope of direct examination was not an abuse of discretion). Here,
the trial court granted Tran a full opportunity to cross-examine Baudier and did
not limit him to matters elicited by the Government on direct examination. Tran
did not contradict this fact when confronted with it by the district court at trial,
nor does he contest it on appeal.
      Even if the district court somehow abused its discretion in refusing to
permit Tran to recall Baudier, any error was harmless. See United States v.
James, 510 F.2d 546, 551 (5th Cir. 1975). First, Baudier testified during the
proffer that he had no specific recollection of the recording at issue. Second,
Tran fails to address the district court’s finding that Baudier’s testimony would
have been barred as hearsay, because Baudier himself did not participate in the
tape-recorded discussion at issue. Finally, to the extent that Tran intended to
inquire into the timing of the DEA investigation, as the trial transcript suggests,
he did not explain why that information was relevant.
                                 CONCLUSION
      For the foregoing reasons, we AFFIRM the judgment of the district court.




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