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Date: 11-28-2021
Case Style:
United States of America v. Murray Rojas
Case Number: 19-2056
Judge: Michael Chagares
Court:
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
On appeal from The United States District Court
for the Middle District of Pennsylvania
Plaintiff's Attorney: United States Attorney’s Office
Defendant's Attorney:
Description:
New York, NY - Criminal defense lawyer represented defendant with causing prescription animal drugs to become misbranded charge.
We write solely for the parties and so recite only the facts necessary to our
disposition. Pennsylvania thoroughbred horse racing regulations include the following
rule: “A person acting alone or in concert may not administer or cause to be administered
a substance to a horse entered to race . . . within 24 hours prior to the scheduled post time
for the first race, except as otherwise provided.” 58 Pa. Code § 163.302(a)(2).
1
Racetracks in Pennsylvania have administrative mechanisms and toxicological
laboratories for enforcing this rule, and Pennsylvania law provides for criminal sanctions
if a person intentionally acts to prevent a publicly exhibited contest — such as a horse
1
Post time is the “[d]esignated time for a horse race to start.” Horse Racing Dictionary,
Pimlico, https://www.pimlico.com/racing-101/horse-racing-dictionary (last visited July
15, 2020).
3
race — from being conducted according to its rules. 18 Pa. Cons. Stat. § 4109.
Rojas was a state-licensed thoroughbred horse trainer who trained and raced
horses at Penn National Race Track (“Penn National”) in Grantville, Pennsylvania. She
was charged by a federal grand jury with six counts of wire fraud, one count of
conspiracy to commit wire fraud, thirteen counts of felony misbranding of animal drugs,
and one count of conspiracy to commit misbranding of animal drugs. The Government
contended that Rojas devised and executed a scheme in which she would administer, or
instruct the veterinarians working at Penn National to administer, certain prohibited
substances to her horses within twenty-four hours of post time.
Three veterinarians worked at Penn National during the relevant time period. At
trial, all three testified that Rojas routinely instructed them to administer drugs to her
horses within twenty-four hours of post time and that Rojas occasionally would
administer the drugs herself. The veterinarians further testified that they hid their
conduct by submitting fraudulent documents to the Pennsylvania Racing Commission
(the “Commission”). The veterinarians would indicate which drugs they administered
and backdate the documents to make it appear that the drugs were administered more
than twenty-four hours before post time; or, they would accurately date the document and
misrepresent the drugs that they administered.
The Government introduced administrative rulings from Penn National stewards
(the “Steward Rulings”) for races in which Rojas’s horses were disqualified for testing
positive for prohibited substances. Robert Scott Campbell, the Commission’s chief
steward at the time, testified that the stewards enforce Pennsylvania’s horse racing
4
regulations. He detailed the relevant drug testing procedures and explained that the
Steward Rulings reflect the Commission’s final decisions to disqualify horses for testing
positive for prohibited substances. Rojas objected to admission of the Steward Rulings
into evidence on hearsay and Confrontation Clause grounds, but the District Court held
that the Steward Rulings were admissible under the business records exception to the
hearsay rule and that they did not violate Rojas’s Confrontation Clause rights because
they were non-testimonial.
The District Court precluded Rojas from introducing evidence to show whether
the drugs administered to her horses within twenty-four hours of post time were
therapeutic versus performance enhancing. It ruled that the distinction was irrelevant to
whether Rojas violated 58 Pa. Code § 163.302(a)(2) because that provision bars all drugs
within twenty-four hours of post time (subject to narrow exceptions not at issue),
regardless of their purpose.
At the close of trial, the District Court instructed the jury that, to find Rojas guilty
of felony misbranding, “the Government must prove beyond a reasonable doubt each of
the following”:
One, that Ms. Rojas caused prescription animal drugs to be dispensed; two,
that the prescription animal drugs were held for sale . . . after they moved in
interstate commerce; three, that the prescription animal drugs were
misbranded because they were prescription animal drugs that were dispensed
without a prescription or other order authorized by law; and four, that Ms.
Rojas acted with the intent to defraud and mislead . . . .
Trial Tr. at 1458–59, United States v. Rojas, No. 15-cr-00169 (M.D. Pa. June 26, 2019),
ECF No. 202. Rojas objected to the instructions, arguing that the District Court should
5
have instructed the jury on the difference between “administering” drugs and
“dispensing” them. She asserted that “[a] drug is ‘dispensed’ when, based upon a
veterinarian’s written prescription or oral order, a drug is given for use by the patient”
while “a drug is ‘administered’ . . . when it is applied directly to the patient.” Appendix
(“App.”) 243. The District Court rejected all of Rojas’s proposed jury instructions to this
effect.
The jury acquitted Rojas on the wire fraud and conspiracy to commit wire fraud
counts and convicted Rojas on the misbranding and conspiracy to commit misbranding
counts. Through a special interrogatory in the verdict form, the jury also found that
Rojas had acted with intent to defraud or mislead.
After the verdict, the District Court denied Rojas’s motion for acquittal, in which
she had argued that the Government should not “be permitted to substitute the act of
administering a drug where a statutory act of misbranding requires proof of dispensing”
and that there was no evidence that Rojas “dispensed” animal drugs. App. 221–22.
Rojas later filed a renewed motion for judgment of acquittal arguing the same point. The
District Court denied that motion as well, and it denied Rojas’s subsequent motion for
reconsideration.
Rojas objected to the United States Probation Office’s Guidelines calculation,
arguing that she did not act with the intent to defraud or mislead required for felony
misbranding because there was no evidence that she participated in, or agreed to
participate in, the veterinarians’ false representations to the Commission. Nevertheless,
the District Court sentenced Rojas for felony misbranding because the jury found that she
6
had acted with the requisite intent. Rojas was sentenced to twenty-seven months of
imprisonment, two years of supervised release, a $5,000 fine, and a $1,400 special
assessment. Rojas timely appealed.
II.
The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
under 28 U.S.C. §§ 1291 and 3742.
We exercise plenary review over the District Court’s denial of Rojas’s motions for
a judgment of acquittal. See United States v. Starnes, 583 F.3d 196, 206 (3d Cir. 2009).
Interpreting the evidence in the light most favorable to the Government, we will uphold
the jury’s verdict “if there is substantial evidence from which a rational trier of fact could
find the essential elements of the crime beyond a reasonable doubt.” Id.
We review the District Court’s refusal to give specific jury instructions for abuse
of discretion, but exercise plenary review over whether the jury instructions correctly
stated the law. United States v. Friedman, 658 F.3d 342, 352 (3d Cir. 2011). We review
the District Court’s evidentiary rulings for abuse of discretion. Id. Finally, with respect
to Rojas’s sentencing, we exercise plenary review over the District Court’s interpretation
of the relevant statutory provision and review factual findings for clear error. See United
States v. Weaver, 267 F.3d 231, 235 (3d Cir. 2001).
III.
Rojas makes five arguments on appeal: (i) the District Court failed to instruct the
jury properly on the distinction between the terms “administer” and “dispense,” as used
in the FDCA; (ii) the Government presented insufficient evidence to support her
7
misbranding convictions because it established only that she administered animal drugs
or caused them to be administered rather than dispensed; (iii) the District Court erred in
allowing the Steward Rulings into evidence; (iv) the District Court erred in excluding
evidence that the drugs given to the horses were for therapeutic purposes; and (v) the
District Court erred in sentencing her for felony rather than misdemeanor misbranding.
A.
Rojas first argues that the terms “administer” and “dispense” have distinct
meanings in the FDCA misbranding provisions, and, as a result, the District Court erred
in refusing to instruct the jury that the terms have different meanings and that proof that
she “administered” animal drugs does not prove that she “dispensed” them. Rojas claims
that “administer” means giving a remedy to a patient whereas “dispense” means giving a
medicine to another person for that person to administer. Rojas Br. 20–29 & n.10 (citing
e.g., Administer, Webster’s Third New Int’l Dictionary 27 (2002) (“to give remedially”);
App. 165 (testimony from a Penn National veterinarian that “administer” and “dispense”
have different meanings); Pennsylvania Rules of Professional Conduct for Veterinarians,
49 Pa. Code § 31.21). Rojas also emphasizes that other provisions of the FDCA use the
terms in different contexts within the same section, implying that Congress intended them
to have different meanings. See, e.g., 21 U.S.C. § 353(b). Finally, Rojas points to Young
v. United States, in which the Supreme Court held that “Congress, by the use of the
words ‘dispensing physicians[,]’ meant to exclude physicians administering to patients
whom they personally attend.” 315 U.S. 257, 259 (1942).
The Government responds that Rojas’s interpretation of “dispense” is inconsistent
8
with the term’s ordinary meaning, citing various dictionary definitions defining “dispense
using terms that are synonymous with ‘administer.’” Gov. Br. 26–27. It argues that
when the veterinarians injected Rojas’s horses they “both dispense[ed] and
administer[ed] the drugs themselves.” Gov. Br. 32 (quoting United States v. Rojas, No.
1:15-cr-00169, 2019 WL 2172814, at *3 (M.D. Pa. May 20, 2019)). The Government
asserts that Rojas’s proposed interpretation would gut the lawful order or prescription
requirement and contravene the purpose of the FDCA by placing veterinarians who
personally administer drugs beyond its reach. Finally, it dismisses Young as
“immaterial” because it involved a now-repealed internal revenue law and distinguished
“administer” and “dispense” in the context of physician record-keeping. Gov. Br. 36.
We are unconvinced that Congress intended the term “dispense” to exclude
situations in which a veterinarian personally administers a drug. The FDCA bars the
“doing of any . . . act with respect to[] a . . . drug . . . if such act . . . results in such [drug]
being adulterated or misbranded.” 21 U.S.C. § 331(k). And it provides that “dispensing
a drug” without a lawful prescription or order is “an act which results in the drug being
misbranded.” Id. § 353(f)(1)(A)–(C). Because the FDCA does not define the word
“dispense,” “we construe it in accordance with its ordinary meaning.” United States v.
Husmann, 765 F.3d 169, 173 (3d Cir. 2014) (quoting Octane Fitness, LLC v. ICON
Health & Fitness, Inc., 572 U.S. 545, 553 (2014)). “Interpretation of a word or phrase
depends upon reading the whole statutory text, considering the purpose and context of the
statute.” Id. (quoting Dolan v. U.S. Postal Serv., 546 U.S. 481, 486 (2006)).
The terms “administer” and “dispense” have both distinct and overlapping
9
ordinary meanings; some dictionaries equate the terms, while others ascribe them distinct
definitions. Compare Administer, Black’s Law Dictionary (11th ed. 2019) (“To give
(medicine or medical treatment) to someone.”) and Dispense, Oxford English Dictionary,
https://www.oed.com/ (last visited Apr. 22, 2020) (“To mete out, deal out, distribute”; “to
administer”), with Dispense, Stedman’s Medical Dictionary 571 (28th ed. 2006) (updated
Nov. 2014) (“To give out medicine . . . ; to fill a medical prescription.”). So resort to
dictionaries is not helpful.
But the FDCA was “designed primarily to protect the health and safety of the
public.” POM Wonderful LLC v. Coca-Cola Co., 573 U.S. 102, 108 (2014). As such,
§ 331(k) has been interpreted broadly to apply to every applicable article that has gone
through interstate commerce. See United States v. Goldberg, 538 F.3d 280, 288–89 (3d
Cir. 2008), as amended (Nov. 6, 2008). The “statute is remedial and should be liberally
construed so as to carry out its beneficent purposes.” De Freese v. United States, 270
F.2d 730, 735 (5th Cir. 1959) (quotation marks omitted).
Rojas’s interpretation of § 331(k) and § 353(f)(1) would contravene this broad
remedial purpose. If the word “dispensed” in § 353(f)(1) does not encompass instances
where veterinarians personally administer prescription drugs, they could circumvent the
lawful order or prescription requirement simply by administering drugs themselves. But,
if veterinarians sold or gave the same drug to a lay person who then administered it, that
person’s conduct would constitute misbranding. We are not convinced that Congress
intended to create such a broad exemption to misbranding by using the term “dispense”
instead of “administer” in § 353(f). The Supreme Court’s decision in Young does not
10
convince us otherwise — that case addressed an old internal revenue law with no
connection to the FDCA other than its use of the terms “administer” and “dispense.” See
315 U.S. at 259–60.
Given this interpretation of the term “dispense,” and because the District Court’s
instructions to the jury closely tracked the relevant language of the FDCA, we discern no
error in the District Court’s recitation of the law or its refusal to give the specific
instructions that Rojas requested. See United States v. Williams, 299 F.3d 250, 258 (3d
Cir. 2002).
B.
Based on the same purported distinction between “administer” and “dispense,”
Rojas contends that there was insufficient evidence to convict her of misbranding because
the Government did not present any evidence that she dispensed prescription animal
drugs. Applying our interpretation of the term “dispense” and “interpret[ing] the
evidence in the light most favorable to the Government,” it is clear that “there is
substantial evidence from which a rational trier of fact could find” that Rojas committed
misbranding. Starnes, 583 F.3d at 206 (quotation marks omitted). The Government
presented considerable evidence at trial that the Penn National veterinarians administered
prohibited drugs to Rojas’s horses within twenty-fours of post time at Rojas’s direction.
It also presented evidence that Rojas herself administered prohibited drugs to her horses
within twenty-four hours of post time. Based on that evidence, Rojas dispensed animal
drugs and caused animal drugs to be dispensed without a lawful order, each instance of
which qualifies as “an act which results in [a] drug being misbranded.” 21 U.S.C.
11
§ 353(f)(1)(C).
C.
Rojas next argues that the District Court erred in allowing the Government to
introduce the Steward Rulings because they are hearsay. She also argues that the District
Court’s precluding her from cross-examining a witness about the Steward Rulings
violated her rights under the Confrontation Clause.
We disagree. “Documents kept in the regular course of business may ordinarily be
admitted at trial despite their hearsay status,” as long as the regularly conducted activity
is not “the production of evidence for use at trial.” Melendez-Diaz v. Massachusetts,
557 U.S. 305, 321 (2009); see also Fed. R. Evid. 803(6). To be subject to the
Confrontation Clause, a hearsay statement must be “testimonial,” meaning that it is a
“declaration or affirmation made for the purpose of establishing or proving some fact”
and “made primarily for the purpose of prov[ing] past events potentially relevant to later
criminal prosecution.” United States v. Gonzalez, 905 F.3d 165, 201 (3d Cir. 2018)
(alteration in original) (quoting United States v. Stimler, 864 F.3d 253, 272 (3d Cir.
2017)).
Campbell’s testimony established that the Steward Rulings met the criteria for the
business records exception to the hearsay rule. Campbell testified that he had been a
steward for fifteen and a half years, including three years as chief steward, and he
explained the purposes of the Steward Rulings as well as how and why they are created
and kept. This evidence established that the Steward Rulings are prepared to enforce
Pennsylvania’s horse racing rules, not to produce evidence for use in litigation. See
12
Gonzalez, 905 F.3d at 201. As a result, the District Court did not abuse its discretion in
admitting the Steward Rulings into evidence, and their admission did not violate Rojas’s
rights under the Confrontation Clause.
D.
Next, Rojas argues that the District Court should not have precluded her expert
witness from testifying about whether the drugs administered were therapeutic versus
performance enhancing. She contends that the Government’s felony misbranding charge
hinged on proving that she participated in a fraud designed to win horse races and prize
money. Therefore, she argued that evidence that the drugs were not performance
enhancing is relevant to whether she perpetrated such a fraud.
We disagree. Pennsylvania’s horse racing regulations prohibit administering
drugs to horses within twenty-four hours of post time and, except for a narrow exception
not at issue, the regulations do not distinguish between therapeutic and performanceenhancing drugs. See 58 Pa. Code § 163.302–304. Any evidence that Rojas sought to
introduce to draw such a distinction is therefore irrelevant. Fed. R. Evid. 401. Further,
the probative value of testimony on the nature of the drugs would have been substantially
outweighed by the risks of “confusing the issues” and “misleading the jury” regarding
whether the Rojas violated 58 Pa. Code § 163.302.
2
See Fed. R. Evid. 403. The District
Court did not abuse its discretion in precluding Rojas from presenting this evidence.
2
The Government objected to this testimony on the grounds that it was irrelevant under
Rule 401 and risked confusing the issues under Rule 403. The District Court’s ruling was
based only on Rule 401.
13
E.
Finally, Rojas argues that the District Court should not have sentenced her for
felony misbranding because the Government did not present evidence that she engaged in
any fraud or attempted to cover up her activities. She alleges that the evidence shows
that only the veterinarians were involved in falsifying documents to the Commission. For
support, she cites United States v. Goldberg, in which we vacated a defendant’s felony
misbranding convictions because he “conducted his admittedly illegal ventures in the
open.” 538 F.3d 280, 290 (3d Cir. 2008).
Again, we disagree. Felony misbranding requires the Government to prove “intent
to defraud or mislead.” Id. at 289 (quoting 12 U.S.C. § 333(a)(2)). There was evidence
presented at trial tending to show that Rojas knew of the falsified reports, instructed the
veterinarians to inject substances within twenty-four hours of post time, thus
necessitating the falsified reports, knew that administering drugs on race day violated
Pennsylvania regulations, and knowingly participated in the entire venture. The
veterinarians testified that they willingly participated in the scheme and understood that it
was illegal. And the jury returned a special interrogatory in the verdict form finding that
Rojas acted with the requisite intent to defraud or mislead. We see no error in the District
Court’s sentencing Rojas for felony misbranding.3
3
We have considered the other arguments made by Rojas and determined that they are
without merit
Outcome: For these reasons, we will affirm the District Court’s judgment of conviction and
sentence.
Plaintiff's Experts:
Defendant's Experts:
Comments: