                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-4684


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

PORFIRIO ORTA-ROSARIO,

                Defendant - Appellant.



                            No. 10-4750


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

KATHLEEN GIACOBBE,

                Defendant - Appellant.



Appeals from the United States District Court for the Western
District of North Carolina, at Charlotte.    Robert J. Conrad,
Jr., Chief District Judge.   (3:07-cr-00154-RJC-DSC-3; 3:07-cr-
00154-RJC-DSC-2)


Submitted:   December 29, 2011            Decided:   March 13, 2012


Before NIEMEYER, AGEE, and WYNN, Circuit Judges.
Affirmed in part; vacated and remanded in part by unpublished
per curiam opinion.


Angela Parrot, Acting Executive Director, FEDERAL DEFENDERS OF
WESTERN NORTH CAROLINA, INC., Ross H. Richardson, Peter Adolf,
Assistant Federal Defenders; Scott H. Gsell, Charlotte, North
Carolina, for Appellants. Anne Magee Tompkins, United States
Attorney, Melissa L. Rikard, Assistant United States Attorney,
Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

               Defendants Kathleen Giacobbe (Giacobbe) and Porfirio

Orta-Rosario (Orta) were charged with conspiracy to distribute

Schedule III and IV controlled substances without a legitimate

medical purpose and outside the usual course of professional

practice,       numerous    substantive          counts       of    distribution,         and

aiding and abetting the same.                   Appellants were involved in an

online     prescription         medication       service.            Appellants        raise

several challenges to their convictions, and Orta challenged his

sentence.

               Orta, a medical doctor, and Giacobbe first assert that

the Controlled Substances Act (CSA) is impermissibly vague as

applied to them in violation of the Fifth Amendment right to due

process.        The    Appellants     contend        that    there    is    no    statutory

definition        of      “legitimate       medical           purpose”       or        “usual

professional practice.”              Appellants argue that the factors the

Government      relied     on   to    demonstrate           that    their   conduct      was

without    a    legitimate        medical    purpose         and    outside       of    usual

professional practice were not sufficient to establish that an

ordinary       person     would      understand        that        their    conduct      was

prohibited.       They further contend that the Ryan Haight Act of

2008 (passed after their criminal conduct), 21 U.S.C.A. § 829(e)

(West Supp. 2011) (the Act), includes a requirement for patients

to   see   a    medical    professional         in    person       before   receiving       a

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prescription, and the absence of such a requirement prior to

passage of the Act rendered the CSA impermissibly vague, and the

rule of lenity should apply to void their convictions.

            In order to prosecute the Defendants for distribution

of   controlled          substances        that        Dr.    Orta       was     authorized       to

prescribe,      the           Government       must        prove    that        the     controlled

substance      was       not    prescribed        only       “for   a    legitimate        medical

purpose by an individual practitioner acting in the usual course

of his professional practice.” 21 CFR § 1306.04(a).                                     There are

no   statutory       definitions          of    “legitimate             medical       purpose”    or

“usual    course         of    professional           practice.”          The     CSA    does    not

specifically define the range of acceptable medical practices.

Gonzales v. Oregon, 546 U.S. 243, 260 (2006).

            Nonetheless,            in     Gonzales,         the    Supreme       Court       stated

that the CSA “bars doctors from using their prescription-writing

powers    as    a    means        to     engage       in     illicit      drug        dealing    and

trafficking         as        conventionally           understood.”              Id.     at      270.

Further, we have held that “there are no specific guidelines

concerning     what       is     required      to      support      a    conclusion       that    an

accused acted outside the usual course of professional practice.

Rather,     courts        must     engage       in      a    case-by-case             analysis    of

evidence to determine whether a reasonable inference of guilt

may be drawn from specific facts.”                           United States v. Singh, 54

F.3d 1182, 1187 (4th Cir. 1995).                            Several other Circuits have

                                                  4
explicitly ruled that the CSA and the regulations are not void

for vagueness.              See United States v. Birbragher, 603 F.3d 530

(8th    Cir.        2010)        (rejecting         vagueness       challenge      in     online

pharmacy case with very similar facts); United States v. Lovern,

590    F.3d        1095,    1103     (10th       Cir.      2009)    (rejecting      vagueness

challenge by pharmacist in online pharmacy case with similar

fact situation); United States v. DeBoer, 966 F.2d 1066, 1068-69

(6th Cir. 1992) (language of § 841(a) is not void for vagueness

because       it    clearly       defines       a       pharmacist’s      responsibilities);

United States v. Rosenberg, 515 F.2d 190, 197-98 (9th Cir. 1974)

(finding phrase “in the course of professional practice” has

been in statutes since 1914 and courts have shown “ease and

consistency” in interpreting phrase); United States v. Collier,

478    F.2d     268,       272    (5th   Cir.       1973     (“in   the    usual   course     of

professional practice” language not unconstitutionally vague).

In light of the statute, regulation, and case law, we conclude

that      the        Defendants           had           adequate     notice        that      the

www.youronlinedoctor.com                 (YOD)       prescription      service     that     they

were involved in was unlawful.                       In addition, the jury found that

the Defendants had knowledge and intent.

               In     2008,       Congress          passed    the    Ryan    Haight       Online

Pharmacy Consumer Protection Act of 2008, which went into effect

on April 15, 2009.                The Act provides “[n]o controlled substance

that is a prescription drug . . . may be delivered, distributed,

                                                    5
or     dispensed        by     means      of     the       Internet       without          a     valid

prescription.”          21 U.S.C.A. § 829(e).                A “valid prescription” is

defined    as     a     prescription           issued       for    a     legitimate            medical

purpose    in     the        usual   course      of     professional           practice          by   a

practitioner who has conducted at least one in-person medical

evaluation.       Id.

            The Appellants contend that because Congress amended

the CSA after they operated YOD, the pre-Ryan Haight CSA was

unconstitutionally vague as to whether it prohibited the conduct

in this case.            The Appellants also suggest that the rule of

lenity requires that their convictions be reversed.                                    Appellants

do not have any case law to support their position.                                        This same

challenge has been rejected by the Second Circuit in Birbragher

and in various district courts.                      See Birbragher, 603 F.3d at 490

(defendant’s “reliance on the Online Pharmacy Act . . . was

misplaced”); United States v. Quinones, 536 F. Supp.2d 267, 273

(E.D.N.Y.       2008)        (although     the       Act    requires       a    face        to   face

meeting between patient and doctor, “it does not follow that the

same     conduct        is     not     within        the     embrace       of        the       current

prohibition        of        distribution         outside          the     usual       scope          of

professional practice”); United States v. Lovin, 2009 WL3634194,

*5    (S.D.Cal.       Oct.     30,   2009)      (“The       fact    that       the    Senate       has

passed a bill which would amend the CSA to explicitly prohibit

the    conduct     at    issue       in   this       case    does        not   invalidate         the

                                                 6
government’s         prosecution         of        defendants       under      the     existing

provisions of the CSA”).

               As    the   Government         argues,        not       only   were     there    no

physical examinations in this case, there were several other

violations, including permitting non-medical personnel to write

prescriptions          with     pre-signed               blank      prescription         forms,

questionable        dosage    amounts,         and      liberal     prescription        refills

that were not based on legitimate medical purposes or based on

professional practices.              Because there is no ambiguity in the

CSA or its application in this case, the rule of lenity does not

apply.     The       Appellants’     constitutional                challenge      to    the    CSA

based on vagueness fails.

               Next,    the   Appellants           challenge       the    district      court’s

denial    of    their      motion   for        a       mistrial.         Before   trial,       the

Appellants moved to exclude evidence of patient deaths allegedly

related    to       receiving   medication              from     the    YOD    enterprise      as

unfairly       prejudicial         and        without          sufficient       evidence        of

causation.           The   court    granted            the   motion      and    enjoined       the

Government from making any reference to the deaths.                                  During the

trial, the Government called Dr. Mark Romanoff to testify as an

expert in the field of medical practice and pain management.

The AUSA asked Dr. Romanoff if he had “an opinion as to whether

the model used by Your Online Doctor constituted the legitimate

practice of medicine?”              Dr. Romanoff responded, “[i]t was not

                                                   7
the practice of medicine at all. . . . In fact, as we have seen,

a lot of patients got into big trouble and some died because of

this.”      Defense    counsel      objected          immediately,      and     the   court

sustained    the     objection      and   informed        the    jury    to    “disregard

completely the last statement of the witness.”

             At the conclusion of Dr. Romanoff’s testimony, defense

counsel     moved    for    a     mistrial       on    the    ground     of    deliberate

misconduct by the Government.             The court denied the motion for a

mistrial, finding that the prohibited testimony was inadvertent

and the court had immediately instructed the jury to disregard

it.    The court gave an additional limiting instruction when the

jury     returned    to     the    courtroom.            The     court     recited        the

Government’s question and Dr. Romanoff’s answer referencing the

deaths and then instructed the jury that “there’s absolutely no

evidence of any kind that any deaths were caused by the conduct

of    any   people    in    this    case.         That       being   so,      you   are    to

completely disregard any comment about any such death.”

             We review the denial of a motion for mistrial for an

abuse of discretion.            United States v. Wallace, 515 F.3d 327,

330 (4th Cir. 2008); see also United States v. Dorlouis, 107

F.3d 248, 257 (4th Cir. 1997) (“[D]enial of a defendant’s motion

for a mistrial is within the sound discretion of the district

court and will be disturbed only under the most extraordinary of

circumstances.”).          In order to show such an abuse of discretion,

                                             8
a defendant must show prejudice; no prejudice exists if the jury

could    make    individual    guilt   determinations         by    following    the

court’s cautionary instructions.                Wallace, 515 F.3d at 330.         To

determine whether prejudice is present, the court “must evaluate

whether    there    is   a    reasonable        probability      that   the   jury’s

verdict    was   influenced     by   the       material   that     improperly   came

before it.”       United States v. Seeright, 978 F.2d 842, 849 (4th

Cir. 1992) (internal quotation marks omitted).

            We conclude that the district court did not abuse its

discretion in denying the Appellants’ motion for a mistrial.

The court issued a curative instruction immediately after the

objection and issued a second curative instruction that went so

far as to say that there was “absolutely no evidence of any kind

that any deaths were caused by the conduct of any people in this

case.”     Further, one of the defendants, Christopher Otiko, was

found not guilty on all counts.                Therefore, the jury was able to

make     individualized      determinations         of    guilt.        See   United

States v. Dorsey, 45 F.3d 809, 817 (4th Cir. 1995).                           As the

improper testimony did not influence the verdict, the district

court did not abuse its discretion in denying the Appellants’

motion for a mistrial.

            The Appellants proffered a jury instruction on good

faith as a defense to the charges.                The Appellants’ brief states

that Orta’s counsel requested that the following instruction be

                                           9
given,    based       on    this    court’s         decision      in   United     States    v.

McIver, 470 F.3d 550, 556 (4th Cir. 2006): “Good faith in this

context       means       good    intentions,        and    the    honest    exercise       of

professional judgment as to the patient’s needs.                            It means that

the    defendant          acted    in    accordance        with    what    he     reasonably

believed to be proper medical practice.”

               The court determined that the best statement of the

law was from United States v. Hurwitz, 459 F.3d 463, 476 (4th

Cir.     2006).           Consistent         with    Hurwitz,      the    district       court

instructed the jury that the Defendants could not be convicted

if it found the Defendants acted in good faith.                                   The court

instructed, “[g]ood faith is not merely a doctor[’s] sincere

intention towards the people who come to see him, but rather it

involves      his     sincerity         in   attempting      to    conduct       himself   in

accordance with a standard of practice generally recognized and

accepted in the United States.”

               “A district court commits reversible error in refusing

to     provide        a    proffered         jury     instruction         only    when     the

instruction (1) was correct; (2) was not substantially covered

by the court's charge to the jury; and (3) dealt with some point

in the trial so important, that failure to give the requested

instruction         seriously       impaired         the    defendant's          ability    to

conduct his defense.”               United States v. Passaro, 577 F.3d 207,

221    (4th    Cir.       2009)   (internal         quotation     marks    omitted).        We

                                                10
“review the district court’s decision to give or refuse to give

a jury instruction for abuse of discretion.”                    Id.

             In    Hurwitz,     the    court     found   that    a     district      court

erred when it instructed a jury that it may not consider a

physician’s good faith when deciding whether to convict on a

drug trafficking charge and held that, in a § 841 prosecution

against a physician, the inquiry into the doctor’s good faith in

treating    his     patients      is   an    objective     one,       rather       than   a

subjective one.           Hurwitz, 459 at 476-79.               Here, the district

court’s instruction was properly based on objective good faith,

and not Orta’s subjective belief that he may have been acting in

good faith.        The district court’s instruction did not confuse

the standard of proof stating that it was beyond a reasonable

doubt as to whether the Defendants acted without a legitimate

medical purpose and outside the bounds of professional practice,

reiterating that the Government had to prove that beyond the

bounds of any legitimate practice was “exclusively criminal in

nature.”          The   court     “describ[ed]       the   concept           of    medical

malpractice and the civil standard of care before categorically

stating that a criminal standard governed resolution of this

case.”     McIver, 470 F.3d at 560.

             Under these circumstances, we conclude that the court

did not err in refusing to give the requested instruction and

crafting     its    own    good    faith     instruction.             Even    if    Orta’s

                                            11
instruction had been a correct statement of the law, he failed

to   demonstrate        that    it    was     not      substantially          covered     by    the

court’s charge to the jury.                        See Passaro, 577 F.3d at 221.

Moreover,     while       Orta       argues       that     the       failure       to   give    the

requested instruction seriously impaired his ability to conduct

a defense, he was able to argue good faith to the jury.                                         For

these reasons, the district court did not err in issuing its

good faith instruction.

             Next, Appellants argue that the district court erred

in instructing the jury on willful blindness.                                     The element of

knowledge    in     the    crime      of    conspiracy           may    be    satisfied        by    a

showing   that      a     defendant         acted       with     willful          blindness,        as

willful   blindness        is    a    form        of    constructive          knowledge        which

“allows   the      jury    to    impute       the       element      of   knowledge       to    the

defendant if the evidence indicates that he purposely closed his

eyes to avoid knowing what was taking place around him.”                                  United

States v. Schnabel, 939 F.2d 197, 203 (4th Cir. 1991).                                    Because

willful   blindness        serves      as     a     proxy      for     knowledge,       there       is

nothing     inconsistent         in    the        determination           that      a   defendant

knowingly was part of a conspiracy even where willfully blind to

the conspiracy’s existence and purpose.                          See McIver, 470 F.3d at

563-64 (noting that willful blindness is sufficient to establish

knowledge     of    a     conspiracy).                 “[A]ll    that        is    necessary        is

evidence from which the jury could infer deliberate avoidance of

                                               12
knowledge.”      United States v. Whittington, 26 F.3d 456, 463 (4th

Cir.    1994).        If   the   evidence         supports    actual      knowledge   and

deliberate ignorance, a willful blindness instruction is proper.

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

             Orta objected in the district court to the willful

blindness instruction, arguing that the instruction should only

be   given    sparingly      where    there        is    specific    evidence     that   a

defendant actively avoided learning of facts.                        Orta argued that

the willful blindness instruction may lead the jury to convict

on something less than knowledge and the specific intent element

of the crime would be voided.             The court denied the objection.

             In his reply brief, Orta argues that a recent Supreme

Court     decision     regarding       the        willful     blindness     instruction

requires evidence of deliberate acts to avoid knowledge.                               See

Global-Tech      Appliances,       Inc.      v.    SEB    S.A.,     131    S.   Ct.   2060

(2011).      Orta asserts that the Global-Tech Court held that “the

defendant must take deliberate actions to avoid learning” of the

fact of an illegality or violation and that this applies to

criminal as well as civil willful blindness instructions.                             Id.

at 2070.

             However, even in light of this recent case, Orta’s

actions were deliberate and calculated to avoid knowledge of the

illegal      aspect    of    the     enterprise.             Orta   actively     ignored

numerous signs that the YOD prescriptions were issued and filled

                                             13
without a legitimate medical necessity and outside the usual

course of professional practice.               We therefore conclude that the

court   did     not   abuse   its     discretion       in    giving       the    willful

blindness instruction.          Passaro, 577 F.3d at 221 (standard of

review).

               Orta assigns error to the district court’s denial of

his motion for a four-level adjustment based on his minimal role

in the offenses pursuant to U.S. Sentencing Guidelines Manual

§ 3B1.2 (2006).       In reviewing the district court’s calculations

under   the     Guidelines,    we    “review     the   district       court’s      legal

conclusions de novo and its factual findings for clear error.”

United States v. Manigan, 592 F.3d 621, 626 (4th Cir. 2010)

(internal      quotation   marks,    alteration,       and       citation     omitted).

We will “find clear error only if, on the entire evidence, [we

are] left with the definite and firm conviction that a mistake

has been committed.”          Id. at 631 (internal quotation marks and

citation omitted).

               Under USSG § 3B1.2(a), a district court shall decrease

the applicable offense level by four levels if the defendant was

a minimal participant in the criminal activity.                       The Guidelines

further    provide    that    such    a   reduction         is    appropriate      in   a

situation where the defendant is “among the least culpable of

those involved in the conduct of the group.”                       USSG § 3B1.2 cmt.

n.4.      In    deciding   whether     the     defendant         played   a     minor   or

                                          14
minimal role, the “critical inquiry is thus not just whether the

defendant has done fewer bad acts than his co-defendants, but

whether     the    defendant’s    conduct      is   material   or   essential    to

committing the offense.”           United States v. Pratt, 239 F.3d 640,

646   (4th    Cir.    2001)     (internal      quotation   marks    and   citation

omitted).     The defendant bears the burden of demonstrating that

he played a minor role in the offense by a preponderance of the

evidence.         United States v. Akinkoye, 185 F.3d 192, 202 (4th

Cir. 1999).

             The district court did not clearly err in refusing to

apply this reduction in offense level.               The district court found

that Orta was the “without which factor” that allowed YOD to

operate     and    distribute    controlled      substances    to   thousands    of

customers.        Without Orta’s photocopied signature and DEA number,

the   YOD    business     would     not     have    authorized      thousands    of

prescriptions.        Orta clearly delegated medical decision-making

to persons untrained and unlicensed in medical practice.                        The

district court found that Orta’s explanations were incredible

and that he was one of the more culpable conspirators.                          His

conduct was therefore “material or essential to committing the

offense,” and the court did not clearly err in rejecting the

role adjustment.

             Finally, Orta argues that the district court erred by

requiring him to pay $1000 of his court appointed attorneys’

                                          15
fees.      Under    the   Criminal       Justice   Act,     “[w]henever     a    United

States     magistrate     judge     or    the   court     finds    that    funds    are

available for payment from or on behalf of a person furnished

representation,” the court may order that such funds be paid to

the court-appointed attorney or the United States Treasury as a

reimbursement for court-appointed representation.                         18 U.S.C.A.

§ 3006A(f)        (West   Supp.     2011).         Any    order      requiring      the

reimbursement of attorneys’ fees under 18 U.S.C.A. § 3006A(f)

must be based on a finding by the district court “that there are

specific funds, assets, or asset streams (or the fixed right to

those funds, assets or asset streams) that are (1) identified by

the court and (2) available to the defendant for the repayment

of   the   court-appointed        attorneys’       fees.”        United    States    v.

Moore, 666 F.3d 313, 322 (4th Cir. 2012).                       The district court,

not having the benefit of Moore, made no such findings in this

case.      For     this   reason,    we     vacate    this      portion    of    Orta’s

sentencing order only and remand for the court to reconsider in

light of Moore.

             We    therefore   affirm       the    convictions      and    Giacobbe’s

sentence and Orta’s sentence with the exception of the portion

of Orta’s judgment ordering repayment of attorneys’ fees.                            We

dispense     with     oral   argument       because       the     facts    and   legal




                                           16
contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                AFFIRMED IN PART;
                                     VACATED AND REMANDED IN PART




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