              Case: 11-15794     Date Filed: 12/12/2012   Page: 1 of 7

                                                               [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 11-15794
                             Non-Argument Calendar
                           ________________________

                   D.C. Docket No. 3:11-cr-00011-LSC-RRA-4



UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                       versus

ROBERT RUSSELL,
a.k.a. Bobby Russell,

                                                               Defendant-Appellant.

                          ________________________

                   Appeal from the United States District Court
                      for the Northern District of Alabama
                          ________________________

                               (December 12, 2012)

Before CARNES, BARKETT and MARCUS, Circuit Judges.

PER CURIAM:

      Robert Russell appeals his convictions for mail fraud, in violation of 18 U.S.C.
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§ 1341, and mail fraud conspiracy, in violation of 18 U.S.C. §§ 1341, 1349. On

appeal, Russell argues that the trial evidence was insufficient because it did not

demonstrate that he showed his alleged co-conspirators how to fraudulently order

drugs over the internet, that there was an agreement to carry out a fraudulent scheme,

that he intended online pharmacies to suffer losses, or that he sent false or misleading

information to pharmacies to obtain drugs. After careful review, we affirm.

      We review sufficiency of the evidence de novo. United States v. Maxwell, 579

F.3d 1282, 1299 (11th Cir. 2009). In determining whether there is sufficient evidence

to support the convictions, we view the evidence in the light most favorable to the

defendant and decide whether a reasonable fact finder could have reached a

conclusion of guilt beyond a reasonable doubt. United States v. Herrera, 931 F.2d

761, 762 (11th Cir. 1991).       The jury is free to choose among the reasonable

conclusions to be drawn from the evidence presented. United States v. Poole, 878

F.2d 1389, 1391 (11th Cir. 1989). We assume that the jury made all credibility

choices in support of the verdict. Maxwell, 579 F.3d at 1299. Statements by the

defendant, if disbelieved by the jury, can be considered substantive evidence of the

defendant’s guilt. United States v. Brown, 53 F.3d 312, 314 (11th Cir 1995).

      Mail fraud under 18 U.S.C. § 1341 consists of intentional participation in a

scheme to defraud a person of money or property and the use of the mails in

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furtherance of the scheme. United States v. Smith, 934 F.2d 270, 271 (11th Cir.

1991); see also Maxwell, 579 F.3d at 1302 (rejecting defendant’s argument that he

did not deprive an entity of money or property where it received the work it sought,

and basing this decision on the fact that “financial loss” is not at the core of the mail

fraud statute, rather, the statute also seeks to punish intent to obtain money or

property fraudulently). A scheme to defraud requires a material misrepresentation,

or the omission or concealment of a material fact calculated to deceive another out

of money or property. Maxwell, 579 F.3d at 1299.

      Conspiracy requires an agreement between the defendant and one or more other

persons, where the object is to commit either an unlawful act or a lawful act by

unlawful means. United States v. Vaghela, 169 F.3d 729, 732 (11th Cir. 1999). For

mail fraud conspiracy, the government must show that the defendant knowingly and

willfully joined in the unlawful scheme to defraud. Maxwell, 579 F.3d at 1299.

Circumstantial evidence can be used to show knowledge of the scheme. Id.

      Count 13 of the indictment alleged that Alfred Shawn Johnson, Kristi Fraley,

Marcus Oakley, Russell, and others conspired to commit mail fraud. To begin,

Oakley and Johnson testified about how they became involved through Russell in the

scheme to defraud by ordering prescription drugs over the internet. Oakley described

how he would provide Russell with his identification information and an old medical

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record, and they would order the pills and then split them. Oakley also described his

own operation, in which he ordered prescription drugs for third parties using altered

medical records, and explained that he learned how to order prescription drugs online

from Russell and that his operation was “similar to” Russell’s operation.

      The evidence further showed the fraudulent nature of Russell’s scheme and the

misrepresentations used to deceive the online pharmacies and obtain drugs. Oakley

explained that he witnessed Russell ordering pills online using the names of third

parties on multiple occasions, and he witnessed Russell using the identifications of

third parties to facilitate this activity. After the orders were placed, he and Russell

would pose as the persons in whose names the pills were ordered. Oakley altered

medical records and when asked if Russell did this, said that “we all done it.”

Although the pills were ordered in a particular person’s name, Johnson and Oakley

each sold some of the pills that they obtained, and Russell also sold some of the pills.

In addition, the physical evidence presented -- including pill bottles found in the truck

and at the residence of Russell, and copies of driver’s licenses of third parties and

medical records of third parties found both in Johnson’s and in Russell’s residences --

further supported the existence of this scheme to defraud. And although there is no

evidence that the online pharmacies suffered financial loss, the evidence showed that

the scheme to defraud existed because Oakley, Johnson, and Russell made material

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misrepresentations to the online pharmacies, which caused them to send the drugs.

See Maxwell, 579 F.3d at 1302.

      The evidence also showed an agreement among Oakley, Russell, and Johnson

to carry out the scheme to defraud, and Russell’s knowing and willful participation

in the scheme. Oakley and Johnson each initially worked directly with Russell to

order prescription drugs over the internet. Oakley used Russell’s computer and fax

machine to place his order and the two ordered pills together several times. Even

after Oakley began ordering pills over the internet on his own, he and Russell “still

talked to each other,” and Oakley said that if he “needed money I would go get it

from Bobby [Russell], get my orders.” Johnson said that in order to become involved

in the scheme, he had to “buy my way in” and make his first few orders with either

Oakley or Russell.

      Moreover, the parties shared significant information in carrying out the

scheme. Oakley and Russell shared websites where drugs could be ordered. Johnson

and Russell shared medical records, some of which had been altered. Johnson

allowed Russell to have access to identification cards and driver’s licenses that were

at Johnson’s residence. This sharing of information was further supported by the

physical evidence, which included copies of Oakley’s identification information that

had been found in the search of Russell’s residence; copies of Russell’s identification

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information and medical records that had been found in the search of Johnson’s

residence; and similar paperwork for a third party, Brandon Gene Prestridge, that had

been found in both Russell’s and Johnson’s residences.

      The evidence also showed that Russell knowingly and willfully participated in

the scheme. For example, Russell told Oakley he could get pills in Ken McDonald’s

name because he had copies of his driver’s license and social security card. Physical

evidence consisting of a pill bottle labeled with McDonald’s name, copies of his

identification, and his medical records, were found in the search of Russell’s

residence. Although other pills were ordered in Johnson’s name, not in Russell’s

name, Russell took half of these pills as payment.

      As for the substantive mail fraud count, the evidence showed that Russell and

Johnson defrauded an online pharmacy in Ocala, Florida, by ordering drugs in Carla

Pigg’s name. Oakley testified that Carla Pigg gave him her driver’s license, but he

said that he did not order pills for Pigg. Rather, as we’ve detailed, the parties to the

scheme significantly shared information. So, for instance, Oakley shared his

customer identifications with Russell, and Oakley and Johnson also shared medical

records. A cover sheet was found in Johnson’s residence that contained Carla Pigg’s

email address and password. Johnson admitted that he wrote the cover sheet and that

he would have used it to order drugs over the internet. Copies of Pigg’s driver’s

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license and medical records were also found in Johnson’s residence. Johnson and

Russell shared records and Johnson allowed Russell access to identification cards and

copies of driver’s licenses at his residence. In addition, a January 2009 search of the

truck that Russell was driving yielded a pill bottle labeled in Carla Pigg’s name for

hydrocodone, which was from Sunshine Drugs in Ocala, Florida. Furthermore,

Russell denied knowing Pigg and claimed he had never seen her identification

information, adding support that the pill bottle in her name was obtained fraudulently.

In considering this evidence together, a reasonable juror could infer and conclude that

Russell and Johnson had defrauded an online pharmacy in Ocala, Florida, by ordering

drugs in Pigg’s name. We therefore affirm Russell’s convictions for mail fraud

conspiracy and mail fraud.

      AFFIRMED.




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