IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 97-41335

_____________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee-Cross-Appellant,

versus

RONNIE S. HAAS,

Defendant - Appellant-Cross-Appellee.

_________________________________________________________________

Appeals from the United States District Court for the

Southern District of Texas

_________________________________________________________________ March 29, 1999 Before JOLLY, DUHÉ, and EMILIO M. GARZA, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

A jury convicted Ronnie Haas, who conducted a pharmaceutical

drug importation business, on multiple conspiracy charges involving

fraud and other illegal conduct relating to Food and Drug

Administration (“FDA”) regulations. The jury also convicted him of

aiding and abetting others involved in the illegal conduct and of

introducing misbranded drugs into this country with the intent to

defraud. Haas argues that the government did not produce

sufficient evide nce for a rational jury to convict him. He also

argues that the district court erroneously instructed the jury.

Finally, both Haas and the government (which cross-appeals) contend1 Haas took the most active role i n operating NAPS while the

other partner s, Keith Dodson and William Wray, were silent

partners.

2 that the district c ourt incorrectly calculated Haas’s sentence

under the Sentencing Guidelines. We hold that the evidence is

sufficient to support convictions on all counts. We further hold

that the district court did not err when instructing the jury.

Finally, we agree with the government that the district court did

err in calculating Haas’s sentence when it failed to consider loss

caused by his fraudulent activities. We therefore uphold all

convictions, but remand for resentencing.

I

Taken in the light most f avorable to the government, s ee

United States v. Ortega Reyna , 148 F.3d 540, 543 (5th Cir. 1998),

the evidence established the following facts.

Ronnie Haas was, shall we say, an entrepreneur. He, along

with two other partners, founded North American Pharmaceutical

Services, Inc. (“NAPS”). 1 NAPS operated as a mail-order business

that advertised in several states, claiming that it c ould supply

phar maceutical drugs at prices lower than the average wholesale

prices because of “the benefits of Internationa l Trade.” These

“benefits of International Trade,” however, had little to do with

NAFTA, GATT or any other international trade agreement. Instead,

the benefits came by way of avoiding U.S. regulations governing the3

sale of drugs; NAPS avoided regulatory oversight by purchasing

drugs in Mexico and then transporting them into the United States

(either through the mail or by way of NAPS employees themselves)

without declaring the importation to any customs authority.

NAPS maintained two primary places of business to sustain its

mode of operation. The headquarters were located in San Antonio,

Texas. Here NAPS received its orders from United States customers.

N APS employees would then transmit the orders to its Mexican

pharmacy located in Nuevo Laredo, Mexico. To fill the orders, the

NAPS employees at the pharm acy would purchase drugs from a

wholesale supplier in Monterrey, Mexico. The NAPS employees would

then fill the orders and, at the early st age of this operation,

would mail them from Mexico to the U.S. customers.

Over the course of several months, NAPS slightly altered its

procedure for moving the drugs from the Mexican pharmacy to the

U.S. customers. Instead of mailing the drugs directly from the

pharmacy, NAPS employees began transporting the drugs--sometimes by

car, and sometimes even by foot--into the United States. Only

after entering the United S tates would NAPS employees place the

drugs into the mail. NAPS never reported the importation of the

drugs to customs officials as required. It is significant that

this alteration of distributio n methods occurred after Haas met

with FDA agents concerning his questionable operation, and during2 See 21 C.F.R. § 207.40 (1998):

Drug listing requirements for foreign drug establishments.

(a) Ev ery foreign drug establishment whose drugs are

imported or offered for import into the United States

shall comply with the dr ug listing requirements in

4 a period in which Haas received written warnings from the FDA

stating that he appeared to be violating the law.

During the months of September and October of 1994, Haas

participated in three meetings with various state and federal

government officials who were concerned about the legality of his

conduct. At the first meeting, which Haas initiated, Haas met with

a customs inspector, Agent Leyendecker, to discuss his importation

plans. Importantly, the inspector told Haas that his activities

would be considered commercial --as opposed to personal--importation

of drugs. The characterization of Haas’s activities as

“commercial” is a crucial point for both the legality of Haas’s

activities and Haas’s convictions. The characterization is crucial

because the facial legality of Haas’s importation busin ess turns

upon the availability to him of a narrow exemption (the “personal

importation exemption”) from various customs and FDA importation

regulations. Under the personal importation exemption, the FDA

waives its standard rule that only drugs manufactured or prepared

in foreign facilities registered with the FDA may enter the United

States. 2 At this first meeting, however, Haas was instructed thatSubpart C of this part, unless exempt under Subpart B of

this part, whether or not it is also registered.

(b) No drug, unless it is listed as required in Subpart

C of this part, may be imported from a foreign drug

establishment into the Uni ted States except a drug

imported or offered for import under the investigational

use provisions of part 312 of this chapter. Foreign drug

establishments shall submit the drug listing information

in the English language.

(c) Ev ery foreign drug establishment shall submit, as

part of drug listing, the name and address of the

establishment and the name of the individual responsible

for submitting drug listing information. The

establishment shall report to FDA any changes in this

information at the intervals specified in § 207.30(a) for

updating drug listing information.

Haas does not argue that he complied with these regulations.

3 The FDA agents told Haas that before foreign drugs may be

marketed in the United States, they must be approved by the FDA.

5 his planned course of business constituted commercial importation

and that the personal importation exemption did n ot apply.

Furthermore, Agent Leyendecker suggested that Haas speak with the

FDA.

The next day, September 21, 1994, Haas did meet with FDA

agents. These agents warned Haas that his activities were

commercial and that he must comply fully with customs and FDA

regulations. A pproximately two weeks later, Haas met with the FDA

again. They again informed him that they considered NAPS to be

e ngaged in commercial importation. Furthermore, they explicitly

told Haas that his activities w ere illegal. 3 Undeterred, HaasIt is u ndisputed that the FDA had never approved the drugs Haas

imported. Nor does Haas contend that the production facility

making the drugs was registered with the FDA.

4 Haas testified that although he did not respo nd to the FDA

after receiving this letter, he did stop advertising in the United

States. According to Haas, he did this without stopping NAPS’s

importation activities because he believed that this was all that

the warning letter required. The jury was, of course, free to

doubt that Haas actually believed this novel and convenient

interpretation of the warning letter at the time he received it.

The decision to stop advertising could easily be interpreted as an

attempt to lower the profil e of NAPS’s operations so as to avoid

alerting regulatory officials to continuing importation.

6 continued NAPS’s operations without complying with customs or FDA

regulations.

In February 1995, the FDA began to confiscate NAPS drug

shipments made through the mail from Mexico. After the FDA began

confiscating the shipments, Haas and other NAPS employees altered

the delive ry method by transporting the drugs into the United

States before placing them into the mail system. Then, in March

1995, the FDA sent Haas the first of two warning letters. Among

other things, the letter stated that NAPS’s “drugs may not be

legally marketed in this country, and, therefore, your activities

are in serious violation of the Federal Food, Drug, and Cosmetic

Act.” The letter went on to list specific sections of the United

States Code that the FDA thought NAPS was violating. Although the

l etter asked for a response, Haas ignored the letter. 4 The FDA

sent another warning letter (repeating the c ontent of the first5 Section 371 states in relevant part:

If two or more persons conspire either to commit any

offense against the United States, or to defraud the

United States, or any agency thereof in any manner or for

any purpose, and one or more of such persons do any act

t o effect the object of the conspiracy, each sh all be

fined under this title or imprisoned not more than five

years, or both.

7 letter) in November 1995. Again, Haas ignored the letter; NAPS

operations continued without change.

Later that same month, FDA officials sought to determine

whether NAPS’s was still operating in violation of federal law. To

this end, an FDA agent--operating under cover and acting as a

typical customer--ordered some drugs from NAPS. In due course the

drugs were delivered. The undercover order confirmed that NAPS was

still operating in violation of FDA regulations. The drugs were

not properly labeled and they did not come from a foreign facility

registered with the FDA. Soon thereafter, FDA agents obtained a

search warrant, searched NAPS’s San Antonio premises, and found

paraphe rnalia indicating that Haas was still conducting NAPS’s

operations out of that location. Haas was subsequently arrested,

indicted, and brought to trial.

II

The government charged Haas with six counts at trial. First,

Haas was charged with conspiracy to defraud an agency of the United

States (the FDA) in violation of 18 U.S.C. § 371. 5 Section 37118 U.S.C.A. § 371 (West Supp. 1998).

6 21 U.S.C. §§ 331(a), 333(a)(2) form the predicate for this

part of the offense. Section 331(a) states:

The following acts and the causing thereof are prohibited:

(a) The introduction or delivery for introduction into

interstate commerce of any food, drug, device, or

cosmetic that is adulterated or misbranded.

21 U.S.C.A. § 331(a) (West 1972). Section 333(a) states:

(a) Violation of section 331 of this title; second violation;

intent to defraud or mislead

(1) Any person who violates a provision of

section 331 of this title shall be imprisoned

for not more than one year or fined not more

than $1,000, or both.

(2) Notwithstanding the provisions of

paragraph (1), if a ny person commits such a

violation after a conviction of him under this

s ection has become final, or commits su ch a

violation with the intent to defraud or

mislead, such person shall be imprisoned for

not more than three years or fined not more

than $10,000, or both.

21 U.S.C.A. § 333(a) (West Supp. 1998).

8 also supports the charge in the second count for conspiracy to

commit an offense against the United States by (1) introducing

misbranded drugs into interstate commerce with the intent to

defraud and mislead, 6 and (2) entering and introducing imported

goods into United States commerce by means of a false statement and7 18 U.S.C. § 542 forms the predicate for this part of the

offense. That provision states in relevant part:

Entry of goods by means of false statements

Whoever enters or introduces, or attempts to enter

or introduce, into the commerce of the United States any

imported merchandise by means of any fraudulent or false

invoice, declaration, affidavit, letter, paper, or by

means of any false statement, written or verbal, or by

means of any false or fraudulent practice or appliance,

or makes any false statement in any declaration without

reasonable cause to believe the truth of such statement,

or procures the making of any such false statement as to

any matter material thereto without reasonable cause to

believe the truth of such statement, whether or not the

United States shall or may be deprived of any lawful

duties; or

Whoever is gui lty of any willful act or omission

whereby the United States shall or may be deprived of any

lawful duties accruing upon merchandise embraced or

referred to in such invoice, declaration, affidavit,

letter, paper, or statement, or affected by such act or

omission–

Shall be fined for each offense under this title or

imprisoned not more than two years, or both.

18 U.S.C.A. § 542 (West Supp. 1998).

8 Section 2 states:

Principals

(a) Whoever commits a n offense against the United States or

aids, abets, counsels, commands, induc e s or procures its

9 false and fraudulent practice. 7 In the remaining four counts, Haas

was charged with aiding a nd abetting the illegal delivery of

misbranded drugs into interstate commerce in violation of 18 U.S.C.

§ 2 8 and 21 U.S.C. §§ 331(a), 333(a)(2).commission, is punishable as a principal.

(b) Whoever willfully causes an act to be done which if

directly performed by him or another would be a n offense

against the United States, is punishable as a principal.

18 U.S.C.A. § 2 (West 1969).

10 The jury returned a verdict of guilty on all six counts. The

trial judge then sentenced Haas to a 27-month term of imprisonment

for each count, each term to run concurrently . The court also

sentenced Haas to three years of supervised release based on counts

1 and 2 and one year of supervised release for each of counts 3-6.

The court ordered that all the terms of supervised release would

run concurrently.

At the sentencing hearing, the district court enhanced Haas’s

sentence, under U.S.S.G. § 3C1.1, for obstruction of justice. The

court found that Haas obstructed justice by perjuring him self in

his testimony at trial. In particular, the court found that Haas

falsely testified by claiming that he had not been told that he

could not import drug s from Mexico and by denying that NAPS was

operating commercially when it br ought the drugs into the United

States.

The pr osecution also argued that the court should enhance

Haas’s sentence under U.S.S.G. § 2F1.1(b)(1)(H). This subsection

calls for a sentence enhancement based upon the dollar amount of

loss caused by the offender’s fraud

. T he district court, however,11

disagreed because it could find no “loss” and refused to enhance

the sentence under this provision.

Haas now appeals, challenging the sufficiency of the evidence

for conviction, the jury instructions, and the calculation of his

sentence. The government cross-appeals the calculation of Haas’s

sentence.

III

A

We first address the sufficiency of the evidence. Viewing all

of the evidence an d the inferences to be drawn therefrom in the

light most favorable to the government, we conclude that a rational

jury could find that the evidence was sufficient to remove any

reasonable doubt of Haas’s guilt.

(1)

We will find the evidence sufficient to support Haas’s

convictions “if any reasonable trier of fact could have found that

the evidence presented at trial established the essential elements

of the crime beyond a reasonable doubt.” U nited States v. Ramirez

,

145 F.3d 345, 350 (5th Cir.) (citing United States v. Alix

, 86 F.3d

429, 435 (5th Cir. 1996)), cert. denied

, 119 S.Ct. 602 (1998). We

also keep in mind that the evidence presented by the government

need not exclude every reasonable hypothesis of innocence.

Ramirez

, 145 F.3d at 350 (citations omitted). In other words, the12

proof need not be “conclusive” in order to “constitute substantial

evidence and to authorize a reasonable trier of fact to conclude

that [Haas’s] guilt was establis hed beyond a reasonable doubt.”

United States v. Richardson , 848 F.2d 509, 514 (5th Cir. 1988).13 (2)

Haas first argues that a rational jury could not have found,

beyond a reasonable doubt, that he intended to defraud the FDA.

Haas argues that, given his numerous attempts to contact and to

receive advice from the FDA, the government presented insufficient

evidence of an in tent to defraud. According to Haas, he and his

partners spent time researching regulatory and customs issues for

several months before starting up his business. He also testified

that, before his initial meeting with Agent Leyendecker, he

attempted, on multiple occa sions, to contact the FDA about

regulations; only after petitioning his congressman did the FDA

return his calls. And when the FDA finally responded to his calls,

an FDA employee sent Haas information on the personal importation

exemption. Haas maintains that he continued to believe that he was

operating w ithin the personal importation exemption, despite the

repeated refrain from regulatory officials that his activities

cons tituted commercial importation. He also points out that he

operated NAPS openly by advertising in several publications--at

least until receiving the f irst warning letter from the FDA.

Finally, Haas argues that a rational jury could not have found that

he had any intent to defraud the FDA with respect to misbranding.

According to Haas, he did not have a subjective understanding of

the term “misbranded” as that term is defined in FDA regulations.14

H aas also argues that the government provided insufficient

evidence for a jury to conclude that the drugs were, in fact,

misbranded. The relevant facts surrounding this argument are not

in dispute. Haas does not argue that the drugs he distributed

complied with the requirements listed in § 352 (b),(c), and (f).

See 21 U.S.C.A. § 352. Instead, he argues that the drugs were

exempt from these labeling requirements because they were filled by

a pharmacist (though the pharmacist was not certified by any

authority in the United States). The applicability of this

exemption, Haas argues, means that the drugs were not “misbranded.”

(3)

We think that the jury had ample evidence before it to

conclude that Haas intended to defraud the FDA. The government

may, of course, prove the defendant’s criminal intent by way of

circumstant ial evidence. We need not list all of the evidence a

jury could have considered in concluding that Haas intended to

defraud the FDA--we will only consider a few examples.

In February 1995, the method that NAPS (at Haas’s instruction)

used in delivering the drugs to U.S. customers changed. Instead of

mailing the drugs from Mexico, NAPS employees transported the

drugs--sometimes by car, sometimes by foot--over the border before

placing them into the U.S. mail system. This change occurred after

Haas had had the three meetings with various agents who had9 According to Haas, the change in delivery methods came about

as the result of an innocent business decision. Haas told the jury

that his customers began complaining about how long it took to get

their drugs. Haas told the jury that he attributed the lengthy

delivery time to the inefficiency of the Mexican mail system. That

was the reason, he testified, why he sought to avoid the

international mail system by walking the drugs over into the United

States. The jury obviously could have rejected this explanation.

15 explained that NAPS’s activities constituted commercial

importation. Also, just before the delivery methods changed, the

FDA began confiscating NAPS’s deliveries, mailed in Mexico, to the

U.S. customers. Haas knew of the FDA seizures because his

customers began to complain about FDA detention of thei r drugs.

From these facts, the jury not only could have inferred that Haas

knew that the FDA considered the importation of these drugs

illegal, but also that Haas changed the methods for importing the

drugs so that he could continue the illegal importation.

Haas argues that a rational jury, in the light of his

explanations, would have rejected much of the inference of intent

that might be drawn from the government’s evidence. Haas and the

government presented two competing explanations for Haas’s conduct

after he received multiple warnings from FDA officials. 9 The jury

had ample reason to disbelieve Haas’s version. His testimony was

riddled with suspect assertions as to his subjective beliefs. For

example, Haas said that he believed that NAPS’s importation of

drugs that were delivered to customers for a price was not1 0 Haas also makes a sufficiency of the evidence argument based

on his assertion that the drugs he imported were ex empt from the

labeling requirements of the Food, Drug, and Cosmetic Act because

they were filled by a pharmacist. This argument is meritless. A

pharmacist cannot legally fill prescriptions with illegal drugs,

and the lack of FDA approval made NAPS’s drugs illegal. The

prosecution presented evidence that the drugs he imported were not

regulated or approved by the FDA. The jury also learned from a FDA

impo rt compliance officer that without FDA approval, the drugs

could not be legally marketed in the United States. Thus, the jury

could have rationally found that NAPS’s drugs did not comply with

16 “commercial” importation, even after being instructed otherwise--on

multiple occasions--by re gulatory agents. In addition, Haas

interpreted the FDA ’s letters warning that he could not “market”

the Mexican drugs to mean only that he could not advertise those

drugs to U.S. citizens. To rational jurors, this testimony could

have been taken as nothing more than lame and specious excuses for

violating the law, denying even the obvious, and could ther efore

have created, in the minds of the jurors, a presumption of deceit

as to many of the controverted issues relating to Haas’s intent.

When a challenge to a jury verdict is based on an argument that the

jury could not ha ve rationally believed that the defendant

possessed criminal intent because of the defendant’s subjective

beliefs, evidence showing that the defendant is wilfully attempting

to obfuscate the truth proves particularly da maging to the

defendant’s case; it is rational for a jury to believe that those

who have been deceptive with the truth once are likely to deceive

again. 10mandatory labeling requirements. Without the exemption, the

evidence showed that the dr ugs were “misbranded” under 21 U.S.C.

§ 352.

17 The undisputed evidence revealed that Haas’s company delivered

thousands of drug orders to U.S. citizens from a pharmacy in Mexico

without filing any declarations with U.S. Customs or the FDA. Haas

was advised repeatedly by government officials that NAPS’s

operations violated federal law. In the face of this, Haas

stubbornly continues to argue on appeal that he actually believed

in the legality of his operations. We cannot conclude that the

jury was unreasonable in disbelieving him and in accepting the

governments evidence and arguments.

B

We turn now to Haas’s challenge to the jury instructions. In

reviewing a c hallenge to jury instructions, we ask “whether ‘the

court’s charge, as a whole, is a correct statement of the law and

whether it clearly instructs jurors as to the principles of law

applicable to the factual issues confronting them.’” U nited States

v. Devoll

, 39 F.3d 575, 579 (5th Cir. 1994) (quoting United States

v. Pace

, 10 F.3d 1106, 1120-21 (5th Cir. 1993). We will find

reversible error when “the jury charge, as a whole, misled the jury

as to the elements of the offense.” I d. Furthermore, in cases

involving violations of relatively complex regula tory law, the

district court’s discretion is especially broad. District courts18

must be given added discretion when they distill the essential

concepts from complex legal jargon.

(1)

In his first challenge to the instructions, Haas argues that

the district court erred when it failed to define the phrase

“intent to defrau d.” Haas would have us r equire a specifically

worded instruction--which we have in the past upheld, see U nited

States v. Gray

, 105 F.3d 956, 968 (5th Cir. 1997)--that acting with

intent to defraud “means to act knowingly and with the intention or

purpose to deceive or to cheat.” We think that this additional

language, beyond the instruction that the court gave, would add

littl e to the jurors’ understanding of the phrase “intent to

defraud.” In short, the district court’s instruction did not fail

to “clearly instruct[] the jurors as to the principles of law

applicable to the factual issues confronting them.’” D evoll

, 39

F.3d at 579.

(2)

The district court instructed the jury that it could conclude

that Haas possessed guilty knowledge if it found that he acted with

deliberate ignorance as to the legality of his conduct. Haas does

not cha llenge the content of these instructions, but only argues

that the evidence did not support the district court’s decision to

give a del iberate ignorance instruction. This challenge to the11 Haas also argues that the jury instructions were deficient

because they failed to require a finding that Haa s knew of the

misbranding. We review Haas’s arguments on this point for plain

error because he did not raise them before the district court. S ee

generally United States v. Calverley , 37 F.3d 160 (5th Cir. 1994)

(en banc). After reviewing the jury instructions, and in the light

of the fact that the jury was told that it must fin d that the

defendant “knew the facts that made his conduct illegal as to each

element of the offense,” we find no plain error.

19 jury instructions i s meritless because Haas bases it--like his

s ufficiency of the evidence arguments--on his own disputed and

controverted view of the evidence.

We have stated that “[t]he purpose of the deliberate ignorance

instruction is to inform the jury that it may consider evidence of

the defendant’s charade of ignoranc e as circumstantial proof of

guilty knowledge.” U nited States v. Lara-Velasquez

, 919 F.2d 946,

951 (5th Cir. 199 0). More specifically, we have said that the

“evidence at trial must raise two inferences: (1) the defendant

was subjectively aware of a high probability of the existence of

the illegal conduct; and (2) the defendant purposely contrived to

avoid learnin g of the illegal conduct.” I d. (citation omitted).

The evidence to which we previously referred clearly supports each

of these inferences. 11

C

Both parties find fault with the district court’s sentencing

deci sion. Haas appeals the district court’s enhancement of his

sentence for obstruction of justice under U.S.S.G. § 3C1.1. The12 Section 3C1.1 states:

If t he defendant willfully obstructed or impeded, or

attempted to obstruct or impede, the administ ration of

justice during the investigation, prosecution, or

sentencing of the instant offense, increase the offense

level by 2 levels.

20 government cross-appeals the failure of the district court to

enhance Haas’s sentence based on “loss,” as that term is used in

U.S.S.G. § 2F1.1. In considering the arguments, we will review the

district court’s application of the Sentencing Guidelines de novo.

The factual findings are reviewed, however, under the clearly

erroneous standard. S ee United States v. Edwards

, 65 F.3d 430, 432

(5th Cir. 1995). “A factual finding is not clearly erroneous as

long as the finding is plausible in t he light of the record as a

whole.” U nited States v. Brown

, 7 F.3d 1155, 1159 (5th Cir. 1993).

(1)

Section 3C1.1 instructs the sentencing court to increase the

sentencing offense level if the defendant has willfully obstructed

justice. 12 As the commentary to § 3C1.1 points out, one example of

such obstruction is perjury. S ee § 3C1.1 cmt. 4(b). The district

court adopted the findings of the Presentence Report and concluded

that Haas committed perjury when he testified at trial. Haas

argues that the district court did not make the independent factual

findings for perjury as required by United States v. Dunnigan

, 507

U.S. 87 (1993). After reviewing the findings of the district1 3 Haas also challenges the dist rict court’s conclusion as to

perjury by arguing that the record does not support the elements of

perjury. After reviewing the trial transcript, we are convinced

that there exists sufficient evidence for a finding that Haas

committed perjury. For example, when Haas’s attorney asked him at

trial whether any FDA officer told him that he “could not be given

any approval to import any medicines,” Haas replied, “No.” But

both testimonial and physical evidence at trial established that

the FDA agents told Haas--both verbally and in wr iting--that his

drug importation activities violated federal law. The sentencing

judge could easily have found that this evidence both contradicted

Haas’s flat denial and that it was more credible than that denial.

21 court, including those which it adopted from the Presentence

Report, see United States v. Storm

, 36 F.2d 1289, 12 96 n.6 (5th

Cir. 1994), we conc lude that the district court made independent

findings as to the wilfulness and untruthfulness of Haas’s

testimony. Although the district court made no explicit findings

as to the materiality of the perjurious statements, it is clear to

us, as a matter of law, that those statements were material. See

I d. at 1297 (finding materiality as a matter of law when the

district court did not make an explicit finding as to materiality).

Haas denied having been told by F DA agents that he could not

legally continue his importation operations, and this assertion

undoubtedly s poke to a material fact. S ee U.S.S.G. § 3C1.1 cmt.

n.6 (“‘Material’

. . . statement . . . as used in this section,

means

. . . statement

. . . that, if believed, would tend to

influence or affect the issue under determination.”). 1 3 The22

district court did not err in deciding to enhance Haas’s sentence

under § 3C1.1.

(2)

In its cross-appeal, the government argues that the district

court erred when it refused to enhance Haas’s sentence based on

“loss” pursuant to U.S.S.G. § 2F1.1. This section requires an

incremental increase in the offense level based on the amount of

loss caused by the fraud.

Haas argues that the government has not shown that Haas’s

customers suffered any loss. According to Haas, the customers paid

discounted prices for drugs that they knew were coming from Mexico.

The governmen t did not show that any of the drugs sold performed

differently from the drugs’ U.S. counterparts. Furthermore, the

government did not produce any cu stomers as witnesses to testify

that NAPS had swindled or cheated them. Without any proof of loss

to the customers, Haas maintains, there simply is no loss to

calculate for sentence enhancement under § 2F1.1. Haas raised this

argument in his objection to the Presente nce Report, and the

district court sustained the objection.

The government argues that the customers did suffer an actual

loss. The government asserts that NAPS caused a loss to its

customers by failing to inform them that, unlike all drugs legally

marketed i n the United States, the drugs were not FDA-approved.1 4 For example, a NAPS worker testified that when the FDA began

confiscating NAPS shipments, it would sometimes p lace a flier in

the packages to inform customers that the drugs were not FDAapproved. According to the employee, some of the customers called

to complain about this fact.

23 NAPS customers suffered loss because they reasonably assumed that

they would receive FDA-approved drugs when, in fact, they did not.

In short, they paid for something they did not receive, i.e., FDA

approval.

There is some evidence, though not much, to indicate that some

customers may have thought that the drugs were FDA-ap proved. 1 4

There is certainly no expert testimony, however, showing the value

of such a loss, if any, and no argument on appeal that such a loss

can be quantified based on the record made in the district court.

Furthermore, there would be no economic harm done to the customers

if they consumed the drugs in ignorance of the lack of FDA approval

and those drugs performed just as we ll as FDA-approved drugs.

Thus, it would seem that the government has proved very little, if

any, loss. We cannot conclude on the record before us that the

district court clearly erred in estimating that Haas’s fraud

produced no loss for his customers.

Notwithstanding the record in this case, however, our circuit

seems to have taken the position that a § 2F1.1 “loss” enhancement

is appropriate even when there has been no identifiable loss. In

United States v. Smithson

, 49 F.3d 138 (5th Cir. 1995), the1 5 We reached this result after describing Application Note

eight to section 2F1.1 which states:

For the purposes of subsection (b)(1), the loss need not

be determined with precision. The court need only make

a reasonable estimate of the loss, given the available

i nformation.

. . . The offender’s gain from comm itting

the fraud is an alternative estimate that ordinarily will

underestimate the loss.

U.S.S.G. § 2F1.1 cmt . n.8 (1993). In the current version of the

Sentencing Guidelines, this note is now note 9 in the Commentary

section.

24 government indicted one Pyron for his conduct in his role as a

bankruptcy debtor. In his bankruptcy petition, Pyron failed to

include, as assets, two option contracts to purchase real estate.

Our court noted that these options were virtually worthless to the

bankruptcy estate because the trustee would not have ra ised the

money necessary to exercise the options before they expired. In

other words, “[t]he l oss to the estate resulting from the

concealment was, for all practical purposes, zero.” Id. at 144.

Even so, we concluded that the district court should

approximate the gain to the defendant as an alternative valuation

method. 15 Smithson interprets the commentary note to require the

district court to use the defendant’s gain as a means to estimate

the severity of the fraud when the court cannot calculate any loss

for such purpose. Although § 2F1.1 ordinarily requires courts to

use the victim’s loss as a proxy for the severity of the crime, the

offender’s gain, i.e., the proceeds from the illicit activity, can1 6 But cf. United States v. Haddock

, 12 F.3d 950, 960 (10th Cir.

1993) (“[T]he enhancement is only for loss to victims, not for gain

to defenda nts. The defendant’s gain may be used only as an

‘alternative estimate’ of that loss; it may not support an

enhancement on its own if the re is no actual or intended loss to

the victims.”); United States v. Anderson

, 45 F.3d 217, 221 (7th

Cir. 19 95) (“While gain may normally prove an adequate surrogate

for loss, gain may be used only as an a lternative method of

calculation when there is in fact a loss, and onl y if use of the

gain results in a ‘reasonable estimate of the loss.’”); United

S tates v. Chatterji , 46 F.3d 1336, 1340 (4th Cir. 1995)

(“gain . . . is not a proxy for loss when there is none”).

25 provide an adequate, alternative method of gauging the crime’s just

penalty when the loss is incalculable. C f. United States v.

Izydore

, No. 97-50537, 1999 WL 55158, at *10 (5th Cir. Feb. 8,

1999) (stating that the “to uchstone for determining loss under

U.S.S.G. § 2F1.1 is the ‘value of the t hing taken’ . . . because

the Sentencing Commission believed that punishment for fraud should

reflect a balance between the loss to the victim and the gain to

the defendant”). Thus, according to our precedent, if the loss is

either incalculable or zero, the district court must determine the

§ 2F1.1 sentence enhancemen t by estimating the gain to the

defendant as a result of his fraud. 16

Under the facts of this case, the loss sustained by either the

FDA (whom Haas was co nvicted of defrauding) or Haas’s customers

(some of whom may or may not have been defrauded) is, for all

practical purposes, incalculable--certainly on the record made by

the government. The district court can, however, estimate the gain17 We pause to note that the government has informed us in its

briefs that it possesses evidence that NAPS conducted a little over

$150,000 in sales. This, the government argues, is an accurate

enough estimate of NAPS ’s gain. Note eight in the commentary to

§ 2F1.1 provides that loss may be estimated by calculating the

offender’s gain. The offender in this case is Haas, not NAPS.

1 8 Notwithstanding what we have said in this paragraph, we leave

to the district court the ultimate determination of all underlying

facts that relate to the amount of Haas’ s gain from the fraud.

According to our precedent, on remand the district court may allow

further development of the record to establish facts necessary for

deciding the § 2F1.1 sentencing issue. S ee United States v.

Kinder , 980 F.2d 961 (5th Cir. 1992); United States v. Marmolejo

, 139 F.3d 528, 530-31 (5th Cir. 1998).

26 that Haas received from defrauding the FDA. 17 The record before us

suggests that all of NAPS operations circumvented FDA regulations.

We come to this conclusion because the entire scheme was to import

Mexican made drugs at deep discounts to customers without incurring

the costs associated with regulatory approval. Thus, Haas’s gain

from his fraudulent importation scheme appears to have been those

monies he received from NAPS by way of salary and profits. 18 We

will remand the case to the district court for further proceedings

not inconsistent with this opinion.

V

For the foregoing reasons, we AFFIRM the conviction of Ronnie

Haas on all counts. We must VACATE his sentence, however, and

REMAND for further proceedings in accordance with this opinion.

AFFIRMED, VACATED, and REMANDED.27