                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUL 2 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    17-30247

                Plaintiff-Appellee,             D.C. No. 2:14-cr-00117-EJL-1

 v.
                                                MEMORANDUM*
RAFAEL BEIER, AKA Rafael L. Beier,
AKA Rafael Leonhard Wolfgang Beier,

                Defendant-Appellant.

                   Appeal from the United States District Court
                             for the District of Idaho
                    Edward J. Lodge, District Judge, Presiding

                       Argued and Submitted May 14, 2019
                              Seattle, Washington

Before: O'SCANNLAIN and FRIEDLAND, Circuit Judges, and EZRA,** District
Judge.

      Appellant, a Doctor of Osteopathic Medicine (“D.O.”) was convicted after a

jury trial of distributing oxycodone, Adderall, and hydrocodone outside the usual

course of his professional medical practice and without a legitimate medical


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
purpose in violation of 21 U.S.C. §§ 841(a), 846, and 859. The remaining facts of

the case are known by the parties and it is unnecessary to recite them here.

      Appellant appeals his conviction, arguing: (1) the district court clearly erred

when it found Appellant competent; (2) the district court abused its discretion

when it denied Appellant’s request for a new trial; (3) the district court abused its

discretion when it refused to admit a specific defense expert’s report;

(4) Wharton’s Rule applies, and Appellant’s conspiracy conviction should be

vacated; (5) the district court plainly erred in failing to give an adequate specific

unanimity instruction; (6) the substantive counts of Appellant’s conviction should

be vacated along with his conspiracy conviction; (7) the district court abused its

discretion in calculating the appropriate drug quantities at sentencing; and

(8) Appellant’s case should be remanded and sent to a new district judge. For the

reasons that follow, we AFFIRM Appellant’s conviction and sentence.

      Competency. The district court’s competency determination is a factual

finding that must be affirmed unless clearly erroneous. See Fed. R. Civ. P. 52(a);

United States v. Gastelum-Almeida, 298 F.3d 1167, 1171 (9th Cir. 2002). In

making such a determination, the district court may consider the defendant’s

irrational behavior, medical evaluations, and the court’s own interaction with the

defendant. Davis v. Woodford, 384 F.3d 628, 644–45 (9th Cir. 2004); Williams v.

Woodford, 384 F.3d 567, 604 (9th Cir. 2004). Although defense counsel’s


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representations are “a factor which should be considered,” courts need not “accept

without question” those representations. Drope v. Missouri, 420 U.S. 162, 177

n.13 (1975). The district court made its competency determination after a two-day

hearing which included expert testimony from both sides and one neutral, court-

appointed expert and fact witnesses from both sides. The district court made

credibility findings as to all the witnesses and credited the neutral, court-appointed

expert’s testimony over that of the defense experts. There is no basis in the record

for a finding that any of those credibility determinations or the ultimate

competency determination was clearly erroneous.

      Motion for New Trial. Appellant moved for a new trial based on the

evidence presented at the competency hearing under Federal Rule of Criminal

Procedure 33. A district court’s denial of a motion for new trial based on an

allegation of newly discovered evidence is reviewed for abuse of discretion, United

States v. Hinkson, 585 F.3d 1247, 1259 (9th Cir. 2009) (en banc), and the court

considers the Harrington factors in arriving at its conclusion. United States v.

Harrington, 410 F.3d 598 (9th Cir. 2005).1 The evidence as to competency stems

from a Traumatic Brain Injury in 1996 and is thus not newly discovered. Beier



1
 The Harrington factors are: (1) the evidence is newly discovered; (2) the
defendant was diligent in seeking the evidence; (3) the evidence is material; (4) the
evidence is not (a) cumulative or (b) impeaching; and (5) the defendant would
probably be acquitted in a new trial based on the evidence. 410 F.3d at 601.

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could have discovered it prior to sentencing by exercising reasonable diligence,

and his initial counsel’s failure to order a competency evaluation is not properly

challenged in a motion for a new trial. Further, because the district court found

Appellant competent and rejected his insanity and diminished capacity arguments,

the evidence, even if new, did not indicate that Appellant would probably be

acquitted in a new trial. Accordingly, the evidence fails the second and fifth

Harrington factors, and the district court did not abuse its discretion.

      Defense Expert’s Report. The district court’s refusal to admit an expert’s

report from an unrelated case concerning a different defendant was not an abuse of

discretion. See Fed R. Evid. 401, 403, 703. It was not “manifestly erroneous,” and

even if it had been in error, the error was not prejudicial, and the verdict was not

affected by the result. Boyd v. City and County of San Francisco, 576 F.3d 938,

943 (9th Cir. 2009).

      Wharton’s Rule. Whether a defendant may be convicted of both

conspiracy and the underlying substantive offense is a question of law, which is

reviewed de novo. United States v. Castro, 887 F.2d 988, 996 (9th Cir. 1989).

Wharton’s Rule states that “an agreement by two persons to commit a particular

crime cannot be prosecuted as a conspiracy when the crime is of such a nature as to

necessarily require the participation of two persons for its commission.”

1 R. Anderson, Wharton’s Criminal Law & Procedure 191 (1957); Castro, 887


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F.2d at 996. However, where, as here, a conspiracy count “charges the existence

of an agreement . . . to possess and distribute” and the substantive counts “charge

actual . . . possession[] and distribution” the substantive counts can be committed

by an individual, and therefore “the Rule has no bearing.” United States v.

Kearney, 560 F.2d 1358, 1367 (9th Cir. 1977). Accordingly, Wharton’s Rule does

not apply to Appellant’s convictions for conspiracy and the substantive counts of

possession and distribution. Further, as the conspiracy count stands, we need not

consider Appellant’s argument regarding the vacation of the substantive counts.

       Specific Unanimity Instruction. Because Appellant did not object to the

district court’s jury instructions at trial, any alleged error in jury instructions is

reviewed for plain error. United States v. Lapier, 796 F.3d 1090, 1096 (9th Cir.

2015). The plain error standard requires that Appellant show: (1) error; (2) that is

clear or obvious, rather than subject to reasonable dispute; (3) that affected

appellant’s substantial rights, which in the ordinary case means it affected the

outcome of the district court proceedings; and (4) that affected the fairness,

integrity, or public reputation of judicial proceedings. Id. The district court sua

sponte gave a specific unanimity instruction in this case, which followed the 9th

Circuit Model Criminal Jury Instruction 7.9. Because that instruction required the

jury to reach its verdict on the conspiracy charge “with all of you agreeing as to the

particular crime which the conspirators agreed to commit,” there was not clearly a


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“genuine possibility of jury confusion,” Lapier, 796 F.3d at 1096, and any error

here was not plain.

      Drug Quantities at Sentencing. A district court’s evaluation of the

reliability of the evidence at sentencing is reviewed for abuse of discretion. United

States v. Vera, 893 F.3d 689, 692 (9th Cir. 2018).

      The district court relied on both Board of Pharmacy records and witness

estimates to establish drug quantities for sentencing. The witnesses here testified

in court and aspects of their testimony were corroborated by other witnesses and

evidence. The district court therefore acted within its discretion in determining

that their statements “possess[ed] sufficient indicia of reliability to support [their]

probable accuracy.” United States v. Forrester, 616 F.3d 929, 949 (9th Cir. 2010)

(quoting United States v. Kilby, 443 F.3d 1135, 1141 (9th Cir. 2006)). Further, the

district court relied on the most conservative estimates of drug quantities derived

from those witnesses’ statements, appropriately ‘“err[ing] on the side of caution’ in

approximating the drug quantity.” Kilby, 443 F.3d at 1141 (quoting United States

v. Culps, 300 F.3d 1069, 1076 (9th Cir. 2002)). Accordingly, the district court did

not abuse its discretion in calculating drug quantity for sentencing.

      New District Judge on Remand. As Appellant’s conviction is affirmed on

all bases, no remand is necessary. Therefore, the Court need not consider




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Appellant’s argument that remand to a different district judge would be

appropriate.

      AFFIRMED.




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