                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 October 29, 2003

                                                          Charles R. Fulbruge III
                           No. 02-41642                           Clerk
                         Summary Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

ROSA MARIA NUNEZ,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. M-02-CR-366-1
                      --------------------

Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

     Rosa Maria Nunez was convicted of conspiracy to introduce an

adulterated device into interstate or foreign commerce with the

intent to commit fraud, two counts of introduction of an

adulterated device into interstate or foreign commerce with the

intent to commit fraud, and two counts of fraud by wire.       See 21

U.S.C. §§ 331(a), 333(a)(2), 18 U.S.C. §§ 2, 371, 1343.

     Nunez first argues that the evidence was insufficient to

establish that these substances were “devices.”   Based on the

uncontroverted testimony of the Government’s expert that these

     *
        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that this opinion should not be published and is not precedent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.
                           No. 02-41642
                                -2-

substances were “devices” if injected to change the shape or

structure of the body and the testimony of Nunez’ patients that

they received the injections to alter the appearance and

structure of their body parts, we conclude that the evidence was

sufficient to support her convictions.     See United States v.

Ortega Reyna, 148 F.3d 540, 543 (5th Cir. 1998)(stating that

standard of review is whether any reasonable trier of fact could

have found that the evidence established the essential elements

of the crime beyond a reasonable doubt).

     Nunez next argues that direct contact with the Food and Drug

Administration (“FDA”) is necessary to prove the intent to

defraud necessary to support convictions for conspiracy and for

introduction of an adulterated device with the intent to defraud.

Even in the absence of any direct contact by Nunez with the FDA,

our review of the record persuades us that Nunez’s actions were

“more than . . . incidental infringement of governmental

regulations,” and that her actions established the intent to

defraud necessary to support her conspiracy conviction.     See

United States v. Haga, 821 F.2d 1036, 1041 (5th Cir. 1987).

Introduction of an adulterated device with the intent to defraud

can be established through deliberate avoidance of contact with

the FDA.   See United States v. Arlen, 947 F.2d 139 (5th Cir.

1991).   Because there is evidence in the record that Nunez

avoided contact with the FDA, we conclude that the evidence was

sufficient to support Nunez’s convictions on these counts.
                            No. 02-41642
                                 -3-

     Nunez argues that there was insufficient evidence to show

that the use of cellular telephones constitutes use of wire

communications under the wire fraud act.    Because this contention

was not raised below, our review is limited to determining

“whether there was a manifest miscarriage of justice.”     United

States v. Laury, 49 F.3d 145, 151 (5th Cir. 1995)(citation

omitted).    Nunez has not shown a “manifest miscarriage of

justice” on this issue.    See 18 U.S.C. § 1343.

     Nunez argues that two counts of the indictment were

“alternate counts,” differing only in the alleged victims; she

argues her conviction and sentence on both counts violate Double

Jeopardy.    Because Nunez did not raise this issue below, we will

consider this claim only as it relates to the sentences imposed.

See United States v. Dixon, 273 F.3d 636, 641-42 (5th Cir. 2001),

cert. denied, 537 U.S. 829 (2002).    We conclude that no Double

Jeopardy violation occurred.    See id. (affirming separate

sentences although the two victims were robbed during a single

incident).

     Nunez asserts that the district court erred in imposing a

special condition of supervised release that suspends supervised

release if she is deported and reinstates it when she returns to

the United States.    Nunez misconstrues this provision; only

active supervision is suspended upon her deportation and the

actual term of supervised release will continue to run.       See

United States v. Brown, 54 F.3d 234, 237-39 (5th Cir. 1995).
                          No. 02-41642
                               -4-

     Although Nunez’s brief discusses several other issues,

counsel concedes each of these issues is frivolous or meritless.

Therefore, we do not address them.

     AFFIRMED.
