     Case: 18-30321      Document: 00514888158         Page: 1    Date Filed: 03/26/2019




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


                                    No. 18-30321
                                                                              FILED
                                                                        March 26, 2019
                                  Summary Calendar
                                                                         Lyle W. Cayce
                                                                              Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff–Appellee

v.

KYLE JAMES HEBERT,

                                                 Defendant–Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 2:17-CR-39-1


Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
       Kyle James Hebert appeals his convictions on one count of conspiring
with Kohll’s Pharmacy & Homecare, Inc., doing business as Essential
Pharmacy Compounding, to deliver in interstate commerce an adulterated and
misbranded prescription animal drug with the intent to defraud federal and
state regulatory agencies including the federal Food and Drug Administration
(FDA), 18 U.S.C. § 371; two counts of receiving an adulterated or misbranded


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                  No. 18-30321

drug in interstate commerce and delivering or offering to deliver the drug with
the intent to defraud or mislead, 21 U.S.C. §§ 331(c), 333(a)(2); and one count
of affecting the label of a drug held for sale and misbranding a drug with the
intent to defraud and mislead while holding the drug for sale, 21 U.S.C. §§
331(k), 333(a)(2). The district court sentenced Hebert to 15 months in prison
and 3 years of supervised release on each of the four counts, with the prison
terms to run concurrently to each other and the supervised release terms to
run concurrently to each other.
      Whether the district court erred in disallowing Hebert’s three character
witnesses to testify that Hebert would never knowingly endanger racehorses
or others on the racetrack, Hebert fails to show a reasonable probability, in
light of the extensive evidence in this matter, that he would have avoided
conviction had the district court ruled otherwise. See United States v. De Leon,
728 F.3d 500, 505 (5th Cir. 2013).
      Hebert also fails to show that, even under de novo review, the district
court erred in instructing the jury. See United States v. Copeland, 820 F.3d
809, 811 (5th Cir. 2016). The district court presented, in the charge as a whole,
a substantially correct statement of the law, and the instructions did not
impair Hebert’s ability to defend himself. See United States v. Peterson, 101
F.3d 375, 381 (5th Cir. 1996). The finding of intent for purposes of § 333 as to
each count charged necessarily required the conclusion that Hebert acted
willfully. See United States v. Arlen, 947 F.2d 139, 143 (5th Cir. 1991).
      Hebert’s challenge to the district court’s denial of his motion to dismiss
the indictment is likewise unavailing even under de novo review. See United
States v. Gonzalez, 792 F.3d 534, 537 (5th Cir. 2015). As the district court
concluded, this court has focused, in defining a “new drug” under 21 U.S.C.
§ 321(p), and a “new animal drug” under 21 U.S.C. § 321(v), on a “drug’s



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                                  No. 18-30321

composition and use rather than on the process by which it was created.” Med.
Ctr. Pharmacy v. Mukasey, 536 F.3d 383, 395, 407 (5th Cir. 2008); see Leocal
v. Ashcroft, 543 U.S. 1, 12 n.8 (2004). Because the FDA had not approved
dermorphin as safe and effective for use for horses, the drug was, by definition,
a “new animal drug.” See 21 U.S.C. § 321(v); United States v. Fontenot, 665
F.3d 640, 644 (5th Cir. 2011). Because this new animal drug lacked FDA
approval, it was, also by definition, “adulterated.” 21 U.S.C. § 351(a)(5); United
States v. An Article of Drug Consisting of 4,680 Pails, More or Less, Each Pail
Containing 60 Packets, Etc., 725 F.2d 976, 980-81 (5th Cir. 1984). The district
court properly denied the motion to dismiss the indictment for failure to allege
an offense. See Gonzalez, 792 F.3d at 537.
      The judgment of the district court is AFFIRMED.




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