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Appeal from the United States District Court for the Middle District of Florida. D.C. Docket No. 8:11-cr-00548-VMC-MAP-1.
For United States of America, Plaintiff - Appellee: Karin Bethany Hoppmann, Linda Julin McNamara, Shauna S. Hale, James A. Muench, Robert E. O'Neill, U.S. Attorney's Office, Tampa, FL.
For Ihab Steve Barsoum, Defendant - Appellant: Mark J. O'Brien, O'Brien Hatfield, PA, Tampa, FL.
Ihab Steve Barsoum, Defendant - Appellant, Pro se, Lecanto, FL.
Before TJOFLAT, Circuit Judge, and MOORE[*] and SCHLESINGER,[**] District Judges.
MOORE, District Judge.
Ihab " Steve" Barsoum appeals his convictions and 204-month sentence, imposed after a jury convicted him of one count of conspiring to dispense Oxycodone not for a legitimate medical purpose and not in the usual course of professional practice, in violation of 21 U.S.C. § § 841(a)(1), (b)(1)(C), and 846, and five counts of distributing Oxycodone outside the course of professional practice, in violation of 21 U.S.C. § § 841(a)(1) and (b)(1)(C). Barsoum appeals several of the District Court's rulings before, during, and after trial, including its drug-quantity findings, which it
based on estimates derived from the record evidence. For the reasons stated below, we affirm.
I. FACTS AND PROCEDURAL HISTORY
This case centers around a complex web of schemes Barsoum implemented with his coconspirators to illegally distribute tens of thousands of Oxycodone pills from several pharmacies between sometime in 2007 and July 2011. After Barsoum's trial and sentencing hearing, the District Court made drug-quantity findings for sentencing and ultimately found Barsoum responsible for 56,000 30-mg Oxycodone pills. The overall drug-quantity finding was based on the number of pills across four categories: (1) sales to an associate named Scott--16,000 pills; (2) fraudulent prescriptions in the name of one Dr. Belsole (the " Belsole prescriptions" )--11,000 pills; (3) sales to an associate named Stevens--24,000 pills; and (4) sales to Stevens during controlled buys orchestrated by the Drug Enforcement Administration (" DEA" )--5,000 pills.
A. Barsoum's First Pill Scheme (St. George's Pharmacy)
In 2006, Barsoum began working at St. George's Pharmacy, which was run by Barsoum's cousin, Wahba, in Pinellas County, Florida. Wahba and a few drug dealers had already established a pill racket at St. George's by the time Barsoum started there. Barsoum's soon-to-be drug associate, Pat Stevens, and others would bring prescriptions under fake patient names to be filled by Wahba. Wahba would then issue large amounts of Oxycodone and OxyContin without asking for identification. Soon after starting at St. George's, Barsoum also began accepting and filling the falsified prescriptions. Barsoum would fill prescriptions for Stevens as often as once a day. He never asked for identification even though Stevens' prescriptions used various patient names. In some instances, Stevens would hand Barsoum a pile of prescriptions all at once, paying large amounts of cash at a set rate per pill. The pills Barsoum distributed at St. George's Pharmacy were not figured into his Sentencing Guidelines calculation and are not at issue in this appeal. Nevertheless, St. George's is where Barsoum got his start--where he learned the tactics he would employ over the next several years at other pharmacies to conceal his illegal pill distribution schemes.
B. Barsoum's Pill Scheme with Scott (Trinity Pharmacy)
In 2007, Barsoum opened his own pharmacy, Trinity Pharmacy, where he soon began accepting falsified prescriptions from an Oxycodone addict and dealer named Christopher Scott. Barsoum coordinated the scheme closely with Scott to avoid DEA suspicion. Barsoum provided Scott actual doctors' names and DEA numbers so that the prescriptions appeared genuine. Whenever Scott presented Barsoum with an incorrect DEA number or a prescription written for suspiciously too many pills, Barsoum would tell Scott to rewrite the prescription. Scott would then leave Trinity Pharmacy, correct the prescription, and return minutes later to fill it. Barsoum educated Scott on several other strategies for avoiding DEA scrutiny as well.
Despite Barsoum's best efforts, the pill scheme drew the attention of the authorities. The local police department began
investigating Scott, whom they suspected of dealing Oxycodone. The police approached Barsoum for information about Scott and asked that he notify them when he saw Scott again. Instead, Barsoum alerted Scott to the investigation and never notified the police.
Scott was eventually, and inevitably, arrested in 2008. At trial, Scott testified that Barsoum filled 4 prescriptions at a time for him, usually for 240 pills each, about once a month, for 17 months (4 x 240 x 1 x 17 = 16,320). The District Court attributed 16,000 Oxycodone pills to Barsoum for this scheme. These pills comprise the first category of the District Court's drug-quantity findings for Barsoum's Guidelines calculation. We further discuss the finding in this category below. See infra Part II.D.ii.a.
Our takeaway from Barsoum's scheme with Scott is that through teaching Scott how to avoid the DEA, and through dispensing such large quantities of pills, Barsoum had positioned himself as the centerpiece of a sophisticated Oxycodone distribution conspiracy.
C. Barsoum's Pill Scheme with Stevens (Trinity Pharmacy)
In 2008, Barsoum's prior associate from the St. George's scheme, Stevens, also began filling falsified prescriptions at Trinity Pharmacy. Barsoum coordinated with Stevens, as he did with Scott, to embellish prescriptions so that they would appear genuine and elude DEA suspicion. Barsoum provided Stevens the names, addresses, phone numbers, and DEA numbers of actual doctors. Barsoum and Stevens communicated via disposable, non-registered phones to further cover their tracks. Between 2009 and 2010, Stevens visited Trinity Pharmacy up to three times a week. He testified at trial that he obtained between 300 and 700 pills each week. He paid Barsoum $4 per pill and resold them for $10 each.
The DEA arrested Stevens in November 2010. The DEA confiscated approximately $203,000 in cash, which Stevens later stated was mostly drug money from reselling Barsoum's pills. He also gave three different post-arrest statements as to the number of pills he had obtained from Barsoum. Stevens gave widely varying estimates of 700 to 800 pills per week for the year, only 500 pills per month for the year, and only 8,000 pills total. The pills Barsoum illegally passed Stevens before Stevens began cooperating with the DEA were figured into his Guidelines calculation as the third category of pills. We further discuss the District Court's finding in this category below. See infra Part II.D.ii.c.
D. DEA Controlled Buys through Stevens (Platinum Pharmacy)
Barsoum later opened another pharmacy, Platinum Pharmacy, where he continued distributing to Stevens. Barsoum was unaware that Stevens had begun cooperating with the DEA in a series of undercover, controlled buys. Each undercover buy operated the same way as Barsoum's prior schemes. Stevens exchanged falsified yet authentic-looking prescriptions and large amounts of cash for large quantities of Oxycodone. Just as in his previous schemes, Barsoum accepted and filled the prescriptions without ever asking for identification. He also created a phone record of feigned prescription verification calls. He pretended to call doctors' offices to verify the prescriptions, but he was actually calling his own throwaway phones. The pills Barsoum distributed during the controlled buys were figured into his Guidelines calculation as the fourth category of
pills. Barsoum does not contest this category on appeal.
E. Belsole Prescriptions
The DEA arrested Barsoum in October 2011, searched Platinum Pharmacy, and seized over sixty prescriptions dated February 2011 to July 2011. The prescriptions were purportedly signed by one Dr. Belsole and accounted for over 11,000 Oxycodone pills. Evidence suggested that the Belsole prescriptions were fraudulent and were used similarly to the fraudulent prescriptions in Barsoum's other schemes. Thus after hearing the evidence, the District Court attributed the 11,000 pills authorized by the Belsole prescriptions to Barsoum as the second category of pill amounts for sentencing. We discuss these further below. See infra Part II.D.ii.b.
Ultimately, the jury convicted Barsoum of the conspiracy count and all five distribution counts charged in the indictment. The District Court calculated Barsoum's Guidelines range at 235 to 293 months after aggregating the four categories of drug-quantity findings. The District Court departed downward and sentenced Barsoum to 204 months.
A. Denial of the Motion to Suppress and Request for Franks Hearing
Below, Barsoum filed a motion to suppress evidence and a request for a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), which the District Court denied. Barsoum alleged that the special agent who swore out the affidavit either recklessly or intentionally omitted information from the warrant application. Barsoum contends on appeal that the District Court erred in denying his request for a Franks hearing, because " [h]ad there been a Franks hearing, the defense would have been able to show that the affidavit deliberately omitted material information as to make its probable cause presentation meaningless." Appellant's Br. at 31. As to his motion to suppress, Barsoum points on appeal to a flurry of supposed deficiencies in the warrant application and affidavit. He believes these deficiencies negated probable cause to search Platinum Pharmacy for any evidence.
i. Standard of Review
We generally review a district court's denial of an evidentiary hearing for an abuse of discretion. United States v. Arbolaez, 450 F.3d 1283, 1293 (11th Cir. 2006). We have not, however, explicitly adopted a standard of review for a district court's denial of a Franks hearing. Id. Nonetheless, abuse of discretion review is appropriate. See United States v. Sarras, 575 F.3d 1191, 1218 (11th Cir. 2009).
A district court's denial of a motion to suppress is a mixed question of law and fact. United States v. Delancy, 502 F.3d 1297, 1304 (11th Cir. 2007). We review a district court's factual findings for clear error and review its application of law to the facts de novo. Id.
A Franks hearing is warranted where a defendant " makes a substantial preliminary showing" that an affiant made intentionally false or recklessly misleading statements (or omissions), and those statements are " necessary to the finding of probable cause." Franks, 438 U.S. at 155-56. " When assessing
whether the alleged false statements and omissions were material, the trial court is to disregard those portions of the affidavit which the defendant has shown are arguably false and misleading." Sarras, 575 F.3d at 1218 (citations omitted). " The defendant bears the burden of showing that, absent those misrepresentations or omissions, probable cause would have been lacking." Id. (citations and internal quotation marks omitted).
We need not address the statements Special Agent Zdrojewski allegedly omitted from the affidavit. The heart of Barsoum's argument is that a Franks hearing would have allowed him to show that the information was deliberately omitted. This argument misunderstands the Franks standard. Franks requires that a defendant make a substantial preliminary showing that statements or omissions are intentionally false or recklessly misleading, and that those statements or omissions altered the probable cause showing. 438 U.S. at 171. The allegations of deliberate omission " must be more than conclusory and must be supported by more than a mere desire to cross-examine." Id. To the extent Barsoum argues that only a Franks hearing could have shown that information was deliberately omitted from the Affidavit, he concedes that he failed to make a substantial preliminary showing of deliberate falsity and omission. See id. The District Court fully addressed Barsoum's allegations of falsity and concluded that they were unpersuasive. For these reasons, we find no abuse of discretion in the District Court's denial of Barsoum's request for a Franks hearing.
As to the flurry of supposed deficiencies in the warrant application and affidavit, after a de novo review of the record, the motion to suppress, Barsoum's appeal brief, and the Magistrate Judge's Report and Recommendation, we also find Barsoum's arguments unpersuasive. Barsoum's arguments raise no substantial issue for consideration. Because our analysis of Barsoum's motion to suppress tracks the Magistrate Judge's extensive analysis, it is unnecessary to address the many supposed deficiencies Barsoum points to. We conclude that the application and affidavit supported a finding of probable cause. The District Court correctly denied Barsoum's motion to suppress.
B. Denial of the Motion for Judgment of Acquittal
Barsoum argues the District Court erred in denying his motion for judgment of acquittal because the Superseding Indictment charged one conspiracy to distribute Oxycodone between an unknown date in 2007 and July 2011, whereas he believes the government proved at least four separate conspiracies at trial. He argues the evidence showed that (1) Scott, (2) Stevens before his arrest, (3) Stevens after he began cooperating with the DEA, and (4) " the unknown [person] responsible for the Belsole prescriptions," Appellant's Br. at 57, all had separate conspiracies and that he was improperly convicted of a single overarching conspiracy.
i. Standard of Review
We review the denial of a motion for judgment of acquittal de novo, but viewing the evidence " in the light most favorable to the ...