UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
A. SAMUEL KELLEY, II, Defendant-Appellant.
UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
JASON R. KELLEY, Defendant-Appellant.
UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
JODI C. SILVIO, Defendant-Appellant.
v.
A. SAMUEL KELLEY, II, Defendant-Appellant.
UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
JASON R. KELLEY, Defendant-Appellant.
UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
JODI C. SILVIO, Defendant-Appellant.
No. 10-14228
D. C. Docket No. 1:08-cr-00327-CG-B-1
No. 10-14560
D.C. Docket No. 1:08-cr-00327-CG-B-2
No. 10-14791
D.C. Docket No. 1:08-cr-00327-CG-B-3
D. C. Docket No. 1:08-cr-00327-CG-B-1
No. 10-14560
D.C. Docket No. 1:08-cr-00327-CG-B-2
No. 10-14791
D.C. Docket No. 1:08-cr-00327-CG-B-3
UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
March 28, 2012
[DO NOT PUBLISH]
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Before DUBINA, Chief Judge, COX, Circuit Judge and GOLDBERG,* Judge.
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PER CURIAM:
Samuel Kelley, Jason Kelley, and Jodi Silvio (collectively "Appellants") were convicted by a jury for conspiring to distribute and dispense anabolic steroids—a controlled substance—outside the usual course of professional practice and without a legitimate medical purpose, in violation of 21 U.S.C. § 846; illegally distributing anabolic steroids to both adults and persons under the age of 21, in violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 841(a) and 859(a); money laundering, in violation of 18 U.S.C. § 1956(a)(1)(A)(i); and money laundering conspiracy, in violation of 18 U.S.C. § 1956(h). Sam Kelley and Jason Kelley were sentenced to 120 months' imprisonment, followed by four years of supervised release, while Silvio was sentenced to 78 months' imprisonment, followed by three years of supervised release. Appellants urge reversal of their convictions because they contend (1) there was insufficient evidence to support their convictions on each charge; (2) the district court improperly denied Samuel Kelley's motion for severance; (3) the district court incorrectly ruled on various evidentiary issues; (4) the district court improperly rejected their requested jury instructions; (5) the prosecutor's remarks during the opening and closing statements were improper; and (6) the district court abused its discretion in
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denying their motion for a mistrial or a new trial. For the foregoing reasons, we reject the Appellants' arguments and affirm their convictions.
Sam Kelley was the President and Chief Executive Officer of Applied Pharmacy Services ("Applied"), Jason Kelley was the Chief Operating Officer and Treasurer, and Silvio was a part-time pharmacist, part-owner, and Secretary. Applied was a compounding pharmacy that combined drug ingredients to create patient-specific medications that were not commercially available. At trial, the Government presented evidence that Applied filled steroid prescriptions for clients who wished to become more muscular. Evidence was also presented that Sam and Jason Kelley facilitated those transactions by cultivating relationships with doctors who were willing to prescribe steroids for no legitimate medical purpose and with salesmen who pursued high volume sales without regard to actual medical need. Between March 2003 and August 2006, Applied illegally dispensed a significant amount of anabolic steroids from its base in Mobile, Alabama, to recipients across the country. As a result of these relationships and sales, Applied became very profitable, and Appellants were compensated with monthly dividends of approximately $500,000 for Jason Kelley and Silvio and approximately $1,000,000 for Sam Kelley. The Government presented evidence that Applied
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continued its suspect steroid dispensing practices despite warnings from the Alabama Board of Pharmacy and the United States Drug Enforcement Agency.
Steroids are a regulated Schedule III controlled substance under federal law—they have some accepted medical uses with a moderate potential for abuse. Some types of steroids are approved only for use in animals and must be prescribed by a licensed veterinarian. Because steroids are a controlled substance, pharmacists bear a responsibility to ensure the drugs are properly prescribed and dispensed. A pharmacist can legally dispense steroids only if a physician acting in the usual course of professional practice issues a prescription for a legitimate medical purpose. A pharmacist who fills a prescription knowing it is invalid is in violation of the controlled substance laws.
Challenges as to the sufficiency of the evidence are reviewed de novo, with this court viewing the evidence "in the light most favorable to the government, with all inferences and credibility choices drawn in the government's favor." United States v. Garcia-Bercovich, 582 F.3d 1234, 1237 (11th Cir. 2009) (internal quotation marks omitted) cert. denied, 130 S. Ct. 1562 (2010). A district court's denial of a motion to sever will not be reversed absent a "clear abuse of
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discretion." United States v. Chavez, 584 F.3d 1354, 1360 (11th Cir. 2009) cert. denied, 131 S. Ct. 436 (2010).
This court reviews a district court's evidentiary rulings for abuse of discretion. United States v. Perez-Oliveros, 479 F.3d 779, 783 (11th Cir. 2007). However, where Appellants fail to contemporaneously object to an evidentiary ruling, this court will review the ruling for plain error. United States v. Turner, 474 F.3d 1265, 1275 (11th Cir. 2007). Finally, this court will review de novo whether an evidentiary ruling violated a constitutional guarantee. United States v. Sarras, 575 F.3d 1191, 1210n.24 (11th Cir. 2009).
This court reviews the district court's denial of a requested jury instruction for abuse of discretion. United States v. Morris, 20 F.3d 1111, 1114 (11th Cir. 1994). Appellants timely objected to the prosecutor's remarks during closing argument; therefore, the propriety of those remarks will be reviewed de novo. See United States v. Schmitz, 634 F.3d 1247, 1259 (11th Cir. 2011). Because Appellants did not timely object to the prosecutor's remarks during the opening statement, we will review the propriety of those remarks for plain error. Id. This court reviews a district court's denial of motions for a mistrial and for a new trial for abuse of discretion. See Chavez, 584 F.3d at 1362; United States v. Hunt, 526 F.3d 739, 744 n.1 (11th Cir. 2008).
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Lastly, this court reviews the district court's denial of a requested jury instruction for abuse of discretion. United States v. Morris, 20 F.3d 1111, 1114 (11th Cir. 1994). The refusal to give a certain jury instruction is reversible error only if "(1) the requested instruction was a correct statement of law, (2) its subject matter was not substantially covered by other instructions, and (3) its subject matter dealt with an issue in the trial that was so important that failure to give it seriously impaired [Appellants'] ability to defend [themselves]." United States v. Dean, 487 F.3d 840, 847 (11th Cir. 2007) (per curiam).
A. Sufficiency of the Evidence1
i. Distributing and Conspiring to Distribute Anabolic Steroids In order to establish the Appellants engaged in a conspiracy to distribute steroids, the Government must have presented sufficient evidence that there was an agreement between two or more people to unlawfully dispense steroids outside the
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usual course of professional practice for no legitimate medical purpose and that each person willfully joined the plan knowing its unlawful purpose. See generally United States v. Smith, 289 F.3d 696, 706 (11th Cir. 2002). The Government presented testimony from businessmen, salesmen, and doctors stating that they each developed a relationship with Applied through either Sam Kelley or Jason Kelley in order to send prescriptions for steroids to Applied for clients who had no medical need for them. The Government was able to show that each of the Appellants' actions facilitated the common goal of the steroids distribution conspiracy. See United States v. Richardson, 532 F.3d 1279, 1284-86 (11th Cir. 2008) (holding that in order to establish a single conspiracy, the government must demonstrate a common goal, the nature of the underlying scheme, and the overlap of participants.). The Government also presented evidence to rebut Sam Kelley's defense that he was simply a detached Chief Executive Officer who did not participate in, or have knowledge of, Applied's illegal activities. Viewing this evidence in the light most favorable to the Government, we affirm Sam Kelley's conviction on this count because a rational trier of fact could have found the essential elements of the offense established beyond a reasonable doubt. Garcia-Bercovich, 582 F.3d at 1237.
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