United States Court of Appeals

for the Fifth Circuit ____________

No. 21-10620

____________

United States of America, 

Plaintiff—Appellee,

versus

Caesar Mark Capistrano; Ethel Oyekunle-Bubu; 

Wilkinson Oloyede Thomas,

Defendants—Appellants.

______________________________

Appeal from the United States District Court 

for the Northern District of Texas

USDC No. 4:20-CR-290-4

USDC No. 4:20-CR-290-8

USDC No. 4:20-CR-290-5

______________________________

Before Higginbotham, Smith, and Engelhardt, Circuit Judges.

Patrick E. Higginbotham, Circuit Judge:

A jury convicted a medical doctor and two pharmacists of drug-related 

crimes under the Controlled Substances Act for their roles in a pill-mill 

operation. We AFFIRM. 

United States Court of Appeals

Fifth Circuit

FILED

July 25, 2023

Lyle W. Cayce

Clerk

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I.

A grand jury indicted Dr. Caesar Capistrano and two pharmacists, 

Wilkinson Oloyede Thomas and Ethel Oyekunle-Bubu (“Bubu”), 

(collectively, “Appellants” or “Defendants”) for roles in a “pill-mill”

operation.1 Prosecutors charged Appellants with three drug-distribution 

conspiracies that each spanned from 2011 to 2020.2 Bubu and Thomas, who 

both owned pharmacies, were also charged with possession with intent to 

distribute controlled substances.

3

While Capistrano is a medical doctor, he also owned multiple clinics.

The Government’s theory was that he prescribed controlled substances and 

Bubu and Thomas filled those prescriptions and others, on a host of 

occasions, for which there was no legitimate medical purpose. The 

conspiracy involved recruiters coordinating with pill mills and complicit 

pharmacies to fill unlawful prescriptions for street-level distribution. 

Recruits posed as patients, getting prescriptions issued in their names in 

exchange for cash. The recruiters would then fill the recruits’ prescriptions 

at complicit pharmacies, paying exclusively in cash. Charged with 

drug-distribution conspiracies and with possessing with intent to distribute 

controlled substances,4 defendants invoked § 841(a) of the Controlled 

Substances Act, which exempts doctors and pharmacists from criminal 

_____________________

1 A “pill mill” is a colloquial term for a medical clinic in which practitioners 

distribute controlled substances without “medical necessity or therapeutic benefit.” See 

United States v. Lee, 966 F.3d 310, 317 (5th Cir. 2020) (describing a “pill mill” as a “a 

medical practice that serves as a front for dealing prescription drugs”).

2 21 U.S.C. § 846.

3 21 U.S.C. § 841.

4 21 U.S.C. § 801 et seq.

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liability for distributing “authorized” controlled substances.5 By regulation, 

prescriptions are “authorized” if they are (1) “issued for a legitimate medical 

purpose” and (2) “by an individual practitioner acting in the usual course of 

his professional practice.”6 At trial, the Government offered extensive 

evidence, including text messages, wiretaps, surveillance, cooperator 

testimony, and records from Defendants’ businesses and homes. The jury 

found Defendants guilty on all counts. The district court sentenced 

Capistrano and Bubu to 240 months’ imprisonment and Thomas to 151 

months. Defendants timely appealed.

II.

We turn first to the standard of our review and then challenges to the 

sufficiency of the evidence. 

A.

“The standard of review for insufficiency-of-the-evidence claims 

depends on whether the claims were preserved.”7 As the three defendants

preserved their challenges to the sufficiency of the evidence against them by

motions filed at trial, our review is de novo.8

Nonetheless, a “defendant seeking reversal on the basis of insufficient 

evidence swims upstream.”9 Our review is “highly deferential” to the jury’s 

_____________________

5 21 U.S.C. § 841(a).

6 21 C.F.R. § 1306.04(a).

7 United States v. Suarez, 879 F.3d 626, 630 (5th Cir. 2018).

8 See United States v. Dailey, 868 F.3d 322, 327 (5th Cir. 2017) (citation omitted); 

United States v. Zamora, 661 F.3d 200, 209 (5th Cir. 2011). 

9 United States v. Gonzalez, 907 F.3d 869, 873 (5th Cir. 2018) (quoting United States 

v. Mulderig, 120 F.3d 534, 546 (5th Cir. 1997)).

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finding of guilt.10 We will uphold the jury’s verdict so long as “any rational 

trier of fact could have found the essential elements of the crime beyond a 

reasonable doubt.”11 A verdict can be supported by “reasonable inferences

from the evidence,”12 but “may not rest on mere suspicion, speculation, or 

conjecture, or on an overly attenuated piling of inference on inference.”13

“Circumstances altogether inconclusive, if separately considered, may, by 

their number and joint operation, especially when corroborated by moral 

coincidences, be sufficient to constitute conclusive proof.”14 “[T]he jury is 

free to choose among reasonable constructions of the evidence.”15

1.

Bubu challenges two counts of possession with intent to distribute 

controlled substances in violation of 21 U.S.C. § 841(a)(1),16 which requires 

the Government to prove beyond a reasonable doubt that Bubu knowingly 

possessed a controlled substance—here, Hydrocodone and Carisoprodol—

_____________________

10 United States v. Zamora-Salazar, 860 F.3d 826, 831 (5th Cir. 2017) (citation 

omitted).

11 United States v. Vargas-Ocampo, 747 F.3d 299, 303 (5th Cir. 2014) (en banc)

(citation omitted). A “reasonable doubt” is “one ‘based on reason which arises from the 

evidence or lack of evidence.’” Jackson v. Virginia, 443 U.S. 307, 317 n.9 (1979) (quoting 

Johnson v. Louisiana, 406 U.S. 356, 360 (1972)).

12 United States v. Moreland, 665 F.3d 137, 149 (5th Cir. 2011) (quoting United States 

v. Percel, 553 F.3d 903, 910 (5th Cir. 2008)).

13 Id. (quoting United States v. Rojas Alvarez, 451 F.3d 320, 333 (5th Cir. 2006)).

14 United States v. Rodriguez–Mireles, 896 F.2d 890, 892 (5th Cir. 1990) (quoting 

The Reindeer, 69 U.S. 383, 401 (1864)) (alteration removed); see also Vargas-Ocampo, 747 

F.3d at 303.

15 United States v. Pennington, 20 F.3d 593, 597 (5th Cir. 1994) (citations omitted). 

16 One is for possessing with intent to distribute Hydrocodone to Cynthia Cooks, 

and the other is for possessing with intent to distribute Carisoprodol to Johnnie Parks. The 

challenges relate to Count 7 and Count 22 of the indictment, respectively.

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which she intended to distribute.17 Bubu’s “[p]ossession may be actual or 

constructive, may be joint among several defendants, and may be proved by 

direct or circumstantial evidence.”18 “Constructive possession is ‘the 

knowing exercise of, or the knowing power or right to exercise, dominion and 

control over the proscribed substance.’”19

Bubu argues that there was “no evidence that [she] knew of the 

particular medical conditions of Ms. Cooks and Mr. Parks.” The 

Government counters that there was abundant evidence of Bubu’s 

involvement with recruiters—including her instructing recruiters to 

“remove [her] logo from vials” and leaving their recruits in the car, as having 

so many people in the area was a bad look—as well as other “numerous red 

flags” about Bubu’s pharmacy operations, including only accepting cash and 

charging unusually high prices for controlled substances, priced per pill 

rather than by a typical prescription quantity.

While § 841 does not require that Bubu knew the patients’ medical 

conditions, there must be sufficient evidence that Bubu knew the 

prescriptions she filled for Cooks and Parks were unauthorized.20 Bubu 

concedes that she “knew some of the prescriptions emanating from Dr. 

Capistrano’s clinic were invalid.” Cooks was one of Capistrano’s recruiters 

who filled her and her recruits’ prescriptions at Bubu’s pharmacy.21 Bubu 

filled Cooks’s Hydrocodone prescription from Capistrano for the highest 

_____________________

17 United States v. Delgado, 256 F.3d 264, 274 (5th Cir. 2001).

18 United States v. Valdiosera–Godinez, 932 F.2d 1093, 1095 (5th Cir. 1991) (quoting 

United States v. Gardea Carrasco, 830 F.2d 41, 45 (5th Cir. 1987)).

19 Id. at 1096 (quoting Gardea Carrasco, 830 F.2d at 45).

20 See United States v. Ferris, 52 F.4th 235, 242–43 (5th Cir. 2022).

21 Cooks pleaded guilty to drug conspiracy in this case.

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possible prescription strength. Cooks testified that she directly interacted 

with Bubu, including phone calls. Parks was one of Cooks’s recruits, and 

Cooks filled his prescriptions at Bubu’s pharmacy. Bubu’s dispense log, 

signed by Bubu, shows that Bubu filled Parks’s and another one of Cooks’s 

recruit’s prescriptions from Capistrano for controlled substances. 

In sum, given the evidence of Bubu’s knowledge of Capistrano’s 

clinic’s practices and her involvement with recruiters, “a rational trier of fact 

could have found the elements of the crime beyond a reasonable doubt.”22

2.

Thomas argues that the evidence cannot show he knew any 

prescriptions were “invalid,” and both Thomas and the Government point 

to “red flags.”23 We turn to the evidence, asking whether a rational jury 

could find beyond a reasonable doubt that Thomas knew the prescriptions 

were unauthorized.24

The testimony of recruiter Wayne Kincade, and his text messages 

with Thomas, played a prominent role in the Government’s case. Kincade 

started using Thomas’s pharmacy to fill his recruits’ prescriptions after 

another recruiter recommended the pharmacy. Kincade told Thomas he was 

picking up other people’s prescriptions because they did not want to drive to 

the pharmacy. Kincade regularly texted and called Thomas about 

prescriptions and sent pictures of recruit’s IDs if needed. Kincade testified 

that Thomas operated “by the book,” but also that Thomas “fronted” 

_____________________

22 Dailey, 868 F.3d at 327 (citation omitted).

23 Yet to overcome the medical defense, the appropriate inquiry is not about red 

flags, but about knowledge.

24 See Vargas-Ocampo, 747 F.3d at 303; Ferris, 52 F.4th at 242–43.

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Kincade prescriptions—once more than $1,000 worth—because Thomas 

trusted that he would pay for the drugs later.

Kincade paid for the prescriptions in cash—three or four at a time for 

$265 each—sometimes outside of business hours. When Kincade tried to fill 

more prescriptions each time, Thomas told him it was best to space them out 

so he would fill some now and the rest the next day. Thomas warned Kincade 

to “be careful cashing those Capistrano prescriptions because he [is] in the 

black book.” Thomas’s pharmacy stopped accepting Capistrano’s 

prescriptions but still filled prescriptions from Dr. Noel, another defendant 

who pleaded guilty. Kincade never told Thomas he sold drugs or suggested 

that he was breaking the law, but Kincade affirmed that, like everyone else 

involved in the conspiracy, Thomas “knew what [he] was doing.”

Thomas argues that Kincade’s statement that Thomas “wasn’t like 

some of the other pharmacists” and was “by the book” means “it was clear 

to Mr. Kincade that Mr. Thomas was not a party to a pill mill case.” But this 

view is not the only one fairly drawn from Kincade’s testimony that Thomas 

“knew what [he] was doing.” While Thomas imposed some requirements on 

filling other people’s prescriptions, a reasonable jury could infer that Thomas 

was trying to cover himself, as the Government argued. We may not reweigh 

the evidence, or second-guess “[c]redibility choices that support the jury’s 

verdict.”25 Juries are “entitled to weigh . . . circumstantial evidence, drawing 

inferences for or against [a defendant’s] knowing and voluntary participation 

in a conspiracy with others.”26 Where, as here, there are multiple reasonable 

constructions of the evidence, “the jury is free to choose among [them].”27

_____________________

25 Zamora-Salazar, 860 F.3d at 832 (citation omitted).

26 Vargas-Ocampo, 747 F.3d at 303.

27 Pennington, 20 F.3d at 597 (citations omitted). Thomas argues that a reasonable 

jury cannot find a defendant guilty beyond a reasonable doubt if the “evidence gives equal 

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“[T]he ‘relevant question is whether, after viewing the evidence in the light 

most favorable to the prosecution, any rational trier of fact could have found 

the essential elements of the crime beyond a reasonable doubt.’”28

Considered in the requisite light, the evidence was sufficient for a rational 

juror to find the requisite mens rea here.

3.

To sustain a conviction for conspiracy under 21 U.S.C. § 846, the 

Government must prove beyond a reasonable doubt “(1) an agreement 

between two or more persons to violate the narcotics laws, (2) the 

defendant’s knowledge of the agreement, and (3) the defendant’s voluntary 

participation in the conspiracy.”29

Capistrano argues he cannot be convicted of conspiracy because there 

was no record that he “had any contact, of any type whatsoever,” with the 

pharmacists. Capistrano also argues that there was “no testimony 

whatsoever that [he] said []or did anything.” The Government counters that 

there was abundant evidence of a conspiracy, and Capistrano’s involvement 

with it as well—including Capistrano instructing individuals to issue 

prescriptions when he was not there, and prescribing significant quantities of 

Alprazolam, Carisoprodol, and Hydrocodone, which accounted for 99.7% of 

his prescriptions—as well as other actions with respect to Capistrano’s

operations. We have long held that “all members of a conspiracy are not 

_____________________

or nearly equal circumstantial support to a theory of guilt, as well as a theory of innocence.” 

Moreland, 665 F.3d at 149. But this Court “abandon[ed] any reliance on the ‘equipoise 

rule’” in Vargas-Ocampo. 747 F.3d at 302.

28 United States v. Xu, 599 F.3d 452, 453 (5th Cir. 2010) (quoting United States v. 

Valle, 538 F.3d 341, 344 (5th Cir. 2008)).

29 Zamora, 661 F.3d at 209 (quoting United States v. Booker, 334 F.3d 406, 409 (5th 

Cir. 2003)).

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required to know every other member for a conspiracy to exist.”30 Given the 

attendant record, Capistrano’s claim falls short.

B.

In sum, our highly deferential review compels us to conclude that 

“‘the totality of the evidence permits a conclusion of guilt beyond a 

reasonable doubt’” for all Appellants on all challenged claims.

31

III.

Bubu and Capistrano challenge the jury instructions given at trial. The

challenges fail.

A.

Generally, “this court reviews jury instructions for abuse of discretion 

and harmless error.”32 “However, when a defendant fails to object to jury 

instructions, we review for plain error.”33 Since neither Bubu nor Capistrano 

objected to the jury instructions, we review for plain error.34

To establish plain error, one must show that: “(1) the district court 

erred, (2) the error was clear or obvious, (3) the error affected his substantial 

rights, and (4) this court should exercise its discretion to correct the error 

because the error seriously affects the fairness, integrity, or public reputation 

_____________________

30 Gonzalez, 907 F.3d at 874 (citing United States v. Bolts, 558 F.2d 316, 325 (5th 

Cir. 1977)).

31 United States v. Nieto, 721 F.3d 357, 365 (5th Cir. 2013) (quoting United States v. 

Hicks, 389 F.3d 514, 533 (5th Cir. 2004)).

32 United States v. Vasquez, 677 F.3d 685, 692 (5th Cir. 2012) (per curiam) (citing

United States v. Betancourt, 586 F.3d 303, 305 (5th Cir. 2009)).

33 Id.

34 See United States v. Nagin, 810 F.3d 348, 350 (5th Cir. 2016). 

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of judicial proceedings.”35 By the metric of plain error review of jury 

instructions, a district court does not err when “the instruction, taken as a 

whole, is a correct statement of the law.”36 “[W]hen a jury instruction omits 

. . . an essential element of an offense, the error may be severe enough to meet 

the plain-error standard.”37 When reviewing a jury instruction, we must 

“consider the jury charge as a whole” and reverse only if the entire charge 

leaves us “with the substantial and ineradicable doubt whether the jury has 

been properly guided in its deliberations.”38 In other words, to amount to 

plain error, the instruction “must ‘have meant the difference between 

acquittal and conviction.’”39

After Appellants filed their initial briefs, the Supreme Court issued 

Ruan v. United States.

40 Ruan addresses the state of mind requirement to 

convict doctors under the Controlled Substances Act.41 In Ruan, the 

Supreme Court overturned the convictions of two doctors for violating 21 

_____________________

35 In re Deepwater Horizon, 824 F.3d 571, 583 (5th Cir. 2016) (citation omitted).

36 Nagin, 810 F.3d at 350 (quoting United States v. Ebron, 683 F.3d 105, 151–52 (5th 

Cir. 2012)). 

37 United States v. Vasquez, 899 F.3d 363, 378 (5th Cir. 2018) (first alteration in 

original), as revised (Aug. 24, 2018) (quoting United States v. Fairley, 880 F.3d 198, 208 (5th 

Cir. 2018)).

38 Septimus v. Univ.of Hous., 399 F.3d 601, 607 (5th Cir. 2005) (internal quotations 

omitted).

39 Vasquez, 899 F.3d at 378 (quoting Fairley, 880 F.3d at 208). This is because the 

party must show that their substantial rights were affected, and to establish that one’s 

substantial rights were affected, defendants bear the burden of showing a reasonable 

probability that absent the error, they would have been acquitted. See United States v. Oti, 

872 F.3d 678, 693 (5th Cir. 2017).

40 142 S. Ct. 2370 (2022). The Government’s brief and Bubu and Capistrano’s 

reply briefs address Ruan. Thomas does not address Ruan.

41 Id. at 2375.

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U.S.C. § 841(a)(1), which makes it a federal crime, “[e]xcept as authorized . 

. . for any person knowingly or intentionally . . . to manufacture, distribute, or 

dispense . . . a controlled substance.”42 Although the defendants could 

prescribe such substances to their patients, prescriptions are authorized only 

when a doctor issued it “for a legitimate medical purpose . . . acting in the 

usual course of his professional practice.”43 The specific question at issue 

was whether it was “sufficient for the Government to prove that a 

prescription was in fact not authorized,” or whether the Government must 

also “prove that the doctor knew or intended that the prescription was 

unauthorized.”44 The Court held that “the statute’s ‘knowingly or 

intentionally’ mens rea applies to authorization.”45 So, “[a]fter a defendant 

produces evidence that he or she was authorized to dispense controlled 

substances, the Government must prove beyond a reasonable doubt that the 

defendant knew that he or she was acting in an unauthorized manner, or 

intended to do so.”46

This Court then decided United States v. Ferris, which applied Ruan 

to pharmacist violations of § 841.47 Emphasizing that it is the unauthorized

nature of prescriptions that renders conduct wrongful, not the dispensation 

itself, this Court held that the Government must prove that a pharmacist 

_____________________

42 21 U.S.C. § 841(a)(1) (emphasis added).

43 21 C.F.R. § 1306.04(a).

44 Ruan, 142 S. Ct. at 2375.

45 Id.

46 Id.

47 52 F.4th at 242–43. Ferris was decided two days after Bubu submitted her Reply 

Brief. This Court allowed Bubu, Capistrano, and the Government to file supplemental 

briefs addressing Ferris’s impact on this case.

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“knowingly or intentionally filled unauthorized prescriptions for a 

patient.”48

1.

Bubu raises two challenges regarding the jury instruction. We address 

each in turn.

First, Bubu challenges the district court’s use of “or” rather than 

“and” in instructing the jury when a prescription is unauthorized. Section 

841 makes it unlawful, “[e]xcept as authorized[,] . . . for any person 

knowingly or intentionally . . . to manufacture, distribute, or dispense . . . a 

controlled substance.”49 A two-pronged definition provides that 

prescriptions for controlled substances are authorized if they are (1) “issued 

for a legitimate medical purpose” and (2) “by an individual practitioner 

acting in the usual course of his professional practice.”50 Bubu argues that 

the district court erred in instructing the jury that “it could convict upon a 

finding that she acted either without legitimate medical purpose or outside the 

usual practice of medicine, measured objectively.”51

_____________________

48 Id. at 243.

49 21 U.S.C. § 841(a)(1).

50 21 C.F.R. § 1306.04. In United States v. Armstrong, we held that because “[b]oth 

prongs are necessary for a prescription to be legitimate[,] . . . a practitioner is unauthorized 

to dispense a controlled substance if the prescription either lacks a legitimate medical 

purpose or is outside the usual course of professional practice.” 550 F.3d 382, 397 (5th Cir. 

2008).

51 Bubu’s opening brief argues that the “‘knowing and intentional’ language of 

§ 841 applies” to both prongs, and that convictions require both prongs. However, Bubu 

conceded this argument was foreclosed by Armstrong. See Armstrong, 550 F.3d at 397 (“[A] 

practitioner is unauthorized to dispense a controlled substance if the prescription either 

lacks a legitimate medical purpose or is outside the usual course of professional practice.” 

(emphasis removed)). In the interim, the Supreme Court decided Ruan, and Bubu’s reply

brief urges that intervening decision “fully vindicates” her argument. We do not see it that 

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The district court’s jury instructions incorrectly stated the law by 

omitting the mens rea element.52 This satisfies the first two prongs of the plain

error test.53 That said, we find that this error does not warrant a plain error 

reversal. While it is true the district court erred, and that error was clear, “an 

instruction that omits an element of the offense does not necessarily render 

a criminal trial fundamentally unfair or an unreliable vehicle for determining 

guilt or innocence.”54 To justify reversal on plain error review, Bubu must 

show that the error affected her substantial rights.55 “‘As a general rule, an 

error affects a defendant’s substantial rights only if the error was 

prejudicial.’”56 “‘Error is prejudicial if there is a reasonable probability that 

the result of the proceedings would have been different but for the error.’”57

_____________________

way. Ruan held that “§ 841’s ‘knowingly or intentionally’ mens rea applies to the ‘except 

as authorized’ clause.” 142 S. Ct. at 2376. The decision does not require that both prongs 

of authorization be lacking, which Bubu appears to recognize in her reply. Accordingly, a 

defendant can be convicted either for knowing prescriptions were issued for an illegitimate 

purpose or knowing they were dispensed outside the usual course of professional practice. 

We view Ruan as ridding the Government of the option—previously accepted under 

Armstrong—that a defendant can be convicted without knowledge for distributing 

prescriptions outside the objectively usual course of professional practice. 550 F.3d at 397.

52 See Neder v. United States, 527 U.S. 1, 12 (1999); Nagin, 810 F.3d at 350–51; see 

also Henderson v. United States, 568 U.S. 266, 279 (2013) (holding second prong of plain

error review considers the law as clarified during time of appeal); United States v. Kahn, 58 

F.4th 1308, 1316 (10th Cir. 2023) (“Ruan expressly disallows conviction under § 841(a)(1) 

for behavior that is only objectively unauthorized. The [G]overnment must prove that a 

defendant ‘knowingly or intentionally acted in an unauthorized manner.’” (quoting Ruan, 

142 S. Ct. at 2376)).

53 See In re Deepwater Horizon, 824 F.3d at 583 (“[T]he district court erred [and] 

the error was clear or obvious.”).

54 Neder, 527 U.S. at 9.

55 Vasquez, 677 F.3d at 693.

56 United States v. Johnson, 943 F.3d 214, 223 (5th Cir. 2019) (cleaned up) (quoting

United States v. Gonzalez-Rodriguez, 621 F.3d 354, 363 (5th Cir. 2010)).

57 Id. (quoting Gonzalez-Rodriguez, 621 F.3d at 363).

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In other words, the likelihood of a different result must be enough to

undermine confidence in the outcome of the proceedings.58 Bubu fails to 

make this showing. 

Bubu’s failure to meaningfully address the third and fourth prongs of 

the plain error test either in her opening brief or in reply undermines her

challenge.

59 Bubu’s initial brief does not argue that but for the error, there 

would be a reasonable probability she would be acquitted. Bubu even 

“assume[s] for the purpose of [substantial rights] that the [G]overnment 

presented sufficient evidence for a jury to find the defendant’s guilty 

knowledge under the correct standard,” but that because of the error, Bubu 

did not have a chance to defend herself.60

Bubu’s concession shows that she did have the “chance to defend 

herself”—the opportunity to present evidence that could have raised doubts 

about her knowledge.61 Additionally, the record shows that Bubu’s counsel 

spent substantial time arguing that Bubu did not knowingly commit a crime. 

Because Bubu failed to argue that but for the incorrect jury instruction there 

was a reasonable probability that she would have been acquitted, she does not 

satisfy the plain error test. Accordingly, although the district court erred—

based on an intervening Supreme Court case it could not know about at the 

time—in instructing the jury, such error does warrant reversal.

_____________________

58 United States v. Holmes, 406 F.3d 337, 365 (5th Cir. 2005) (citing United States v. 

Dominguez Benitez, 542 U.S. 74, 81 (2004)).

59 Bubu addresses the third and fourth prongs in only six sentences.

60 In support, Bubu cites her procedural history section, which includes a four-page 

discussion of the evidence the Government introduced to establish knowledge and a single 

paragraph noting that “some evidence tended to raise doubts about [Bubu’s] knowledge.”

61 We note that the two pieces of evidence Bubu points to “to raise doubts” are (1) 

a codefendant’s witness’s testimony and (2) testimony from a Government’s witnesses.

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Bubu’s second challenge argues the district court erred by “tethering 

the pharmacist’s criminal liability to a doctor’s misconduct.” She argues that 

the instructions exclusively address doctors’ practices and not pharmacists’ 

practices and that any doctor’s unauthorized act—whether known or 

unknown by the doctor or pharmacist—could be imputed to a pharmacist.

We conclude that reasonable minds can differ as to whether the instructions 

impute doctors’ misconduct to pharmacists, as the instructions simply ask 

the jury to consider each defendant’s “usual course of professional 

practice.” “[L]egal error must be clear or obvious, rather than subject to 

reasonable dispute.”62 This was not.

2.

Capistrano raises three jury-instruction challenges. First, Capistrano 

challenges the instruction given by the district court. The written jury charge 

correctly instructed the jury to determine whether the controlled substances 

were “(1) prescribed for what the defendant subjectively considered to be a 

legitimate medical purpose.” However, at trial, the district court misread the 

charge, telling the jurors to consider objectively legitimate medical purposes.

Capistrano contends this warrants reversal.

To be sure, we have recognized the problematic nature of inconsistent 

jury instructions.63 And we have found reversible error when written

instructions were contradictory on an issue that neither party addressed 

during closing argument.64 But when reviewing jury instructions, we “rarely 

_____________________

62 See Puckett v. United States, 556 U.S. 129, 135 (2009).

63 Aero Int’l, Inc. v. U.S. Fire Ins. Co., 713 F.2d 1106, 1113 (5th Cir. 1983) (noting 

that “it is impossible after verdict to ascertain which instruction the jury followed”

(internal quotation omitted)).

64 Nowell ex rel. Nowell v. Universal Elec. Co., 792 F.2d 1310, 1316–17 (5th Cir. 1986).

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will reverse a conviction based on a district court’s insignificant slip of the 

tongue.”65 A “district court’s apparent mistake [is] sufficiently remedied to 

render any resulting error harmless” when the jury is given a copy of the 

instruction, in which “[t]he contradictory, erroneous statement is nowhere 

to be found.”66 “[T]he proper inquiry is not whether the instruction ‘could 

have’ been applied in an unconstitutional manner, but whether there is a 

reasonable likelihood that the jury did so apply it.”67

Here, not only was there no error in the written instructions, the 

parties also spent extensive time discussing the subjective knowledge 

requirement during closing arguments.68 Even though the district court 

misspoke, when “consider[ing] the instructions as a whole, the evidence 

presented, and the arguments of counsel[,]” we do not believe this error is 

“so fundamental as to result in a miscarriage of justice.”69 Accordingly, we 

find there was no reversible error.70

_____________________

65 United States v. Phipps, 319 F.3d 177, 190 (5th Cir. 2003) (finding no reversible 

plain error where one reference was made to proof by a preponderance of the evidence).

66 United States v. Sanders, 70 F.3d 1268 (5th Cir. 1995)(unpublished) (per curiam).

In that event, “the district court’s ‘slip of the tongue,’ [is] cured by the straightforward 

and accurate statement of the applicable law subsequently furnished in writing to the 

jurors” and “d[oes] not constitute reversible error.” Id.; see also Phipps, 319 F.3d at 190 

(holding that a judge’s “single slip of the tongue” in mentioning in one count the 

preponderance-of-the-evidence standard instead of the beyond-a-reasonable-doubt 

standard in the jury instructions was not plain error).

67 Phipps, 319 F.3d at 190 (quoting Victor v. Nebraska, 511 U.S. 1, 6 (1994)).

68 See United States v. Musgrave, 483 F.2d 327, 335 (5th Cir. 1973) (affirming a 

conviction despite a slip of the tongue, because the “[i]solated statements which appear 

prejudicial when taken out of context [were] innocuous when viewed in the light of the 

entire trial”).

69 Nowell, 792 F.2d at 1316.

70 See Vaccaro v. United States, 461 F.2d 626, 636 (5th Cir. 1972) (noting the 

“numerous cases in which convictions have been upheld despite erroneous instructions”

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Second, like Bubu, Capistrano challenges the district court’s use of 

“or” rather than “and” in instructing the jury when a prescription is 

unauthorized. Unlike Bubu, however, Capistrano does not argue that the 

knowledge requirement applies to both authorization prongs. Rather, like 

Bubu, Capistrano argues that both prongs must be satisfied. Because the 

Government need not prove both prongs, Capistrano fails to establish plain

error. 

Lastly, Capistrano argues that “the trial court did not clearly explain 

nor adequately define to the jury what good faith means.” The district 

court’s jury instructions make no mention of good faith. However, good faith 

is not a required element of the offense.71 Capistrano fails to show any error, 

plain or otherwise.

72

B.

In sum, neither Bubu nor Capistrano have shown that any errors

affected their substantial rights or that we should exercise our discretion to 

correct any such errors.

73 We reject Bubu and Capistrano’s arguments that 

we must vacate their convictions because of the jury instructions.

_____________________

when it was confidently declared that the instructions “did not contribute to the verdict of 

guilt”).

71 Cf. United States v. Rodriguez-Escareno, 700 F.3d 751, 753 (5th Cir. 2012) (“The 

first step in plain-error review is to determine whether there was error.”).

72 See Nagin, 810 F.3d at 350–51.

73 See United States v. Broussard, 669 F.3d 537, 553 (5th Cir. 2012) (“To affect the 

defendant’s substantial rights, the defendant must demonstrate that the error affected the 

outcome of the district court proceedings.”); United States v. Escalante-Reyes, 689 F.3d 415, 

425 (5th Cir. 2012) (“Additionally, we do not view the fourth prong as automatic if the 

other three prongs are met.”).

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IV.

We next address Bubu’s other claims. Her challenges all fail.

A.

Bubu contends that the district court deprived her of her

constitutional right to counsel at a critical stage of the proceeding—during

sentencing—by allowing her to proceed pro se without a clear and 

unequivocal waiver.74 “Sixth Amendment challenges to the validity of a 

waiver of counsel are reviewed de novo.”75 To determine whether the district 

court violated Bubu’s right to counsel, we ask whether Bubu properly waived 

her right to counsel and whether the waiver was knowing and intelligent.76

1.

A criminal defendant, by virtue of the Sixth Amendment, has the right 

to counsel at trial.77 The right extends to the sentencing phase just as 

forcefully as to the guilt phase.78 “Where a fundamental constitutional right, 

such as the right to counsel, is concerned, courts indulge every reasonable 

presumption against waiver.”79 Without a clear election to forgo counsel, “‘a 

court should not quickly infer that a defendant unskilled in the law has waived 

_____________________

74 The parties do not dispute that sentencing is a critical stage in which defendants 

are entitled to be represented by counsel. See United States v. Taylor, 933 F.2d 307, 312–13

(5th Cir. 1991). 

75 United States v. Mesquiti, 854 F.3d 267, 271 (5th Cir. 2017) (citation omitted).

76 Id. at 271–72.

77 See Taylor, 933 F.2d at 312.

78 Tucker v. Day, 969 F.2d 155, 159 (5th Cir. 1992) (citing Taylor, 933 F.2d at 312).

79 Mesquiti, 854 F.3d at 272 (quoting United States v. Cano, 519 F.3d 512, 517 (5th 

Cir. 2008)). 

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counsel and has opted to conduct his own defense.’”80 Defendants “can 

waive [their] right to counsel implicitly, by [their] clear conduct, as well as by 

[their] express statement.”81 Further, defendants’ “‘refusal without good 

cause to proceed with able appointed counsel constitutes a voluntary waiver 

of’ the right to counsel.”82 “To constitute waiver, such a refusal must take 

the form of ‘a persistent, unreasonable demand for dismissal of counsel.’”83

But the right is not limitless. Applied here, a criminal defendant is not 

entitled to a particular counsel, just a competent one.84 As we have described 

this right previously, “‘[a] defendant is entitled to counsel capable of 

rendering competent, meaningful assistance. . . . No defendant has a right to 

more.’”85

The issue regarding Bubu’s representation was no minor dispute, but 

instead a continuous and long-running issue. At sentencing, Bubu repeatedly 

stated she did not want her current attorney, J. Stephen Cooper, to represent 

her. Bubu did not like the attorney previously appointed to her, so the district 

court allowed Bubu to hire Cooper, who was Bubu’s fourth attorney. The 

district court then instructed Bubu: “he is either going to be your lawyer, or 

you’re going to proceed pro se.” Cooper explained there was “some conflict” 

_____________________

80 Burton v. Collins, 937 F.2d 131, 133 (5th Cir. 1991) (quoting Brown v. Wainwright, 

665 F.2d 607, 610 (5th Cir. 1982)).

81 Mesquiti, 854 F.3d at 272 (citation omitted).

82 Id. (quoting United States v. Fields, 483 F.3d 313, 350 (5th Cir. 2007)).

83 Id. (quoting United States v. Moore, 706 F.2d 538, 540 (5th Cir. 1983)).

84 Moore, 706 F.2d at 540; see also Richardson v. Lucas, 741 F.2d 753, 756 (5th Cir.

1984) (“Although the sixth amendment’s right to counsel in criminal cases is absolute, an 

accused’s right to a particular counsel is not.”).

85 McQueen v. Blackburn, 755 F.2d 1174, 1178 (5th Cir. 1985) (quoting Moore, 706 

F.2d at 540).

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between Cooper and Bubu and that Bubu refused to talk to him.86 The district 

court instructed Cooper to discuss the PSR and the dangers of selfrepresentation with Bubu. After a 47-minute break, Cooper reported that 

Bubu refused to look at any documentation with him and when he spoke 

about the dangers of self-representation, she turned her back to him and said: 

“I’m representing myself.” Bubu told the district court she wanted a 

different lawyer to represent her. The district court spoke with the attorney 

Bubu wanted, who said he had not yet been retained to represent Bubu and 

that it would “not be feasible” to represent her at that time. The Government 

objected to Bubu bringing on a fifth attorney because “it seem[ed] like . . . a 

delay tactic” since Bubu had received “competent representation from her 

first lawyer through her fourth lawyer.” The district court agreed and, not 

wanting to keep delaying sentencing and recognizing Bubu’s “pattern” of 

“refus[ing] to talk to [her] attorneys[,]” denied Bubu’s request to fire

Cooper and hire new counsel.

When asked if she desired to represent herself, Bubu responded “No” 

but also insisted that Cooper could not represent her. When told she had to 

choose between two options: either Cooper representing her or representing 

herself, Bubu refused to answer the question, reiterating: “I want new 

counsel.” After more back and forth, the district court concluded: “you’ve 

made clear that you do not want Mr. Cooper to represent you in this case . . .

So that means, ma’am, you are going to represent yourself.” The district 

court proceeded, then Bubu interjected to say: “I cannot represent myself 

right now, sir.” The district court asked Bubu to not interrupt him, and Bubu 

again said, “I cannot represent myself.” The district court asked if she 

_____________________

86 Cooper claims Bubu asked him to withdraw but refused to sign a motion to 

withdraw. Bubu claims there is “no record” that she spoke to Cooper and asked him to 

withdraw.

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wanted Cooper to come back, which she eventually agreed to. Cooper 

returned and argued that Bubu “needs some credit for an exemplary life prior 

to this event,” asked for a minimum guidelines sentence, and introduced 

Bubu’s children to speak on her behalf.

Bubu’s conduct—which she concedes was “frustrating”—waived

counsel. Bubu persistently and unreasonably demanded that her counsel be 

dismissed. After having already dismissed multiple attorneys and refusing to 

cooperate and communicate with Cooper—and even turning her back to 

him—she insisted she would represent herself. Although Bubu never told the 

court she wished to represent herself, her actions relinquished her right to 

counsel.87 Bubu does not argue that she had good cause to not proceed with 

Cooper.88 And we have long-held that “[a] defendant’s refusal without good 

cause to proceed with able appointed counsel constitutes a voluntary” decision 

to proceed pro se.89 We find Bubu’s actions as a voluntary waiver of the right 

to counsel. 

2.

While Bubu may have voluntarily waived the right to counsel, we must 

next ask if it was done knowingly and intelligently.90 Defendants must “be 

_____________________

87 See Mesquiti, 854 F.3d at 274 (“Mesquiti stated, ‘I don’t accept [current counsel]

as my lawyer and I don’t consent to these proceedings.’”).

88 See United States v. Simpson, 645 F.3d 300, 308 (5th Cir. 2011) (holding a 

defendant does not have “good cause” to appoint substitute counsel where the defendant 

refused to communicate with his attorney).

89 United States v. Romans, 823 F.3d 299, 313 (5th Cir. 2016) (emphasis added) 

(quoting Dunn v. Johnson, 162 F.3d 302, 307 (5th Cir. 1998)); see alsoIn re Hipp, Inc., 5 F.3d 

109, 114–15 (5th Cir. 1993).

90 To be sure, the waivable right to counsel does not force a requirement of counsel 

on an unwilling criminal defendant. Faretta v. California, 422 U.S. 806, 819, 833–35 (1975).

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made aware of the dangers and disadvantages of self-representation.”91 We 

require “district courts to exercise discretion in determining the precise 

nature of the warning provided to a defendant seeking to represent himself, 

depending on the circumstances of the individual case.”92 “Although . . . the 

precise nature of appropriate warnings depends on the particularities of the 

case, we have generally required trial courts to provide warnings of 

substance, including at least a modicum of specificity.”93

Bubu argues that even if she waived her right to counsel, it was not a 

knowingly and intelligent choice because the court did not advise her that 

repeatedly requesting a new lawyer or asking for a continuance would result 

in immediate self-representation. The record shows otherwise.

The district court told Bubu, “I am not continuing the case any longer. 

And so that means today, you can represent yourself . . . or you can be 

represented by Mr. Cooper.” The sentencing transcript reveals the district 

court repeatedly advised Bubu against self-representation and of the 

disadvantages of self-representation. For example, the district court 

cautioned Bubu: “I’m going to advise you that, in my opinion, you will be far 

better off remaining with your retained attorney, Mr. Cooper. I think it is 

unwise of you to try to represent yourself.” The district court even instructed 

_____________________

A defendant may only relinquish this right, however, if it is knowingly and intelligently. Id. 

at 835; see also Mesquiti, 854 F.3d at 272 (quoting Tovar, 541 U.S. at 81).

91 Faretta, 422 U.S. at 835 (citation omitted).

92 Mesquiti, 854 F.3d at 272–73 (citation omitted). “The trial court must consider 

various factors, including ‘the defendant’s age and education and other background, 

experience, and conduct.’” Id. at 273 (quoting McQueen, 755 F.2d at 1177).

93 Id. at 273. “The court must ensure that the waiver is not the result of coercion 

or mistreatment of the defendant and must be satisfied that the accused understands the 

nature of the charges, the consequences of the proceedings, and the practical meaning of 

the right [being waived].” Id. (quoting McQueen, 755 F.2d at 1177).

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Cooper to discuss “dangers and disadvantages” of self-representation with 

Bubu. Bubu argues that the court should have to warn defendants that their 

conduct could result in self-representation. While sometimes district courts 

do this,94 we have never imposed such a requirement95 and we decline to do 

so today. Given the district court’s multiple warnings and attempts to reason 

with Bubu, we hold Bubu knowingly and voluntarily waived her right to 

counsel.

B.

Bubu challenges the district court’srefusal to grant a continuance. “A 

district court’s denial of a continuance is reviewed for abuse of discretion.”96

“Trial judges have ‘broad discretion’ in ruling on motions for a 

continuance.”97 “[T]he movant must show that the denial resulted in 

specific and compelling or serious prejudice.”98 “This is true even where the 

denial of the continuance will shorten the amount of time available for 

preparation of the defendant’s case.”99 “In review, we evaluate each 

situation on a case-by-case basis and normally consider only the reasons for 

continuance presented to the trial judge.”100 To establish that denying a 

_____________________

94 See Moore, 706 F.2d at 539 (noting the court warned it was “highly likely” that 

the defendant’s “failure . . . to cooperate with [his attorney] in preparation of his case will 

be construed . . . as a waiver of his right to counsel”).

95 See generally, e.g., Mesquiti, 854 F.3d at 267.

96 United States v. Piper, 912 F.3d 847, 853 (5th Cir. 2019) (per curiam) (citations

omitted).

97 Mesquiti, 854 F.3d at 275 (quoting United States v. Scott, 48 F.3d 1389, 1393 (5th 

Cir. 1995)).

98 United States v. Barnett, 197 F.3d 138, 144 (5th Cir. 1999) (internal quotation 

omitted).

99 United States v. Gates, 557 F.2d 1086, 1088 (5th Cir. 1977) (citation omitted).

100 Mesquiti, 854 F.3d at 275 (quoting Scott, 48 F.3d at 1393).

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continuance was an abuse of discretion, Bubu “must show that the denial 

resulted in ‘specific and compelling or serious prejudice.’”101 We will uphold 

the decision below so long as it was not arbitrary or unreasonable.102

Bubu argues the district court abused its discretion in denying her 

continuance request made at sentencing because she was unprepared to 

represent herself. While Bubu’s briefs identify the correct standard, she fails 

to address the “specific and compelling or serious prejudice” that resulted 

from the denial of the continuance. To be sure, Bubu maintains that she

needed more time to prepare to discuss her PSR objections. That said, she 

fails to explain how this discussion would have aided her defense. She 

therefore cannot establish prejudice.103

The record also indicates that prior to Bubu’s request, the district 

court paused proceedings and instructed Bubu and her counsel to review the 

PSR. She refused to do so. Any resulting prejudice was by her own hand.

Bubu’s counsel was available and capable of representing her, and she may 

not indefinitely postpone hearings to seek representation.104 The district 

court acted well within its discretion in refusing to grant the requested 

continuance.

C.

Bubu argues that the district court erred by adopting the PSR without 

first hearing objections from her attorney, violating her Rule 32 rights, which 

_____________________

101 Id. (quoting Barnett, 197 F.3d at 144).

102 United States v. Stalnaker, 571 F.3d 428, 439 (5thCir. 2009) (citation omitted).

103 See Mesquiti, 854 F.3d at 276.

104 See Gates, 557 F.2d at 1088 (“[A] defendant‘may not indefinitely postpone trial 

by continued applications for more time to seek representation.’” (quoting United States v. 

Arlen, 252 F.2d 491, 494 (2d Cir. 1958))).

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require sentencing courts to “allow the parties’ attorneys to comment on the 

probation officer’s determinations and other matters relating to an 

appropriate sentence.”105 Because Bubu did not object to the PSR below, 

plain error review applies.106

Bubu argues neither she nor her attorney had a chance to object. 

Nowhere does the Rule require courts to hear comments before ruling on PSR 

objections. The Rule governing parties’ opportunities to speak, Rule 

32(i)(4)(A), provides that defendants and their attorneys must have an 

opportunity to speak “[b]efore imposing sentence,” not before adopting the 

PSR.107 Bubu argues but cites no support for the assertion that “[a]t least 

where the defendant proceeds pro se, the same reasoning suggests that the 

court errs when ruling on PSR objections without soliciting argument from 

the defendant.” We have noted that “‘[t]he touchstone of [R]ule 32 is 

reasonable notice’ to allow counsel adequately to prepare a meaningful 

_____________________

105 FED. R. CRIM. P. 32(i)(1)(C). Bubu’s initial brief quotes the correct 

subsection—Rule 32(i)(1)(C)—but incorrectly cites to 32(i)(4)(C), which is not relevant 

to Bubu’s appeal. Bubu’s Reply Brief cites the correct provision in some places and the 

incorrect in others.

106 See United States v. Reyna, 358 F.3d 344, 350 (5th Cir. 2004) (en banc). While

Bubu did not object to this below, she argues that we should review for harmless error 

because she was not given an opportunity to object. See FED. R. CRIM. P. 51(b) (“If a 

party does not have an opportunity to object to a ruling or order, the absence of an objection 

does not later prejudice that party.”). However, the sentencing transcript reveals that Bubu 

did not attempt to object to the PSR. Bubu points to the judge telling her: “Please don’t 

interrupt me.” But not only was Bubu interrupting to object to her self-representation, this 

occurred after the court acknowledged and ruled on the PSR objections. We have long held 

that “[a] party must raise a claim of error with the district court in such a manner so that 

the district court may correct itself.” United States v. Krout, 66 F.3d 1420, 1434 (5th Cir.

1995) (quoting United States v. Bullard, 13 F.3d 154, 156 (5th Cir. 1994)). Bubu did not do 

so here.

107 FED. R. CRIM. P. 32(i)(4)(A). 

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response and engage in adversary testing at sentencing.”108 Here, both Bubu 

and her attorney were given opportunities to speak at sentencing. While the 

Federal Sentencing Guidelines say that “[w]hen any factor important to the

sentencing determination is reasonably in dispute, the parties shall be given 

an adequate opportunity to present information to the court regarding that 

factor[,]” it notes that counsel’s “[w]ritten statements” may suffice.109 That 

is what happened here. Bubu’s attorney filed written objections. 

Additionally, unlike Rule 32(i)(1)(B) and Rule 32(i)(4)(A), Rule 32(i)(1)(C) 

does not require courts to “give [defendants] a reasonable opportunity to 

comment,”110 “address the defendant personally,”111 or “provide the 

defendant’s attorney an opportunity to speak.”112 Rule 32(i)(1)(C) instead

requires that parties’ attorneys be allowed to comment.113 At no point did the 

district court prohibit Bubu’s attorney from commenting. Bubu has not 

established that the district court committed a clear or obvious violation of 

Rule 32(i)(1)(C).

_____________________

108 United States v. Angeles–Mendoza, 407 F.3d 742, 749 n.12 (5th Cir. 2005) 

(emphasis omitted) (quoting United States v. Andrews, 390 F.3d 840, 845 (5th Cir. 2004)); 

see also Irizarry v. United States, 553 U.S. 708, 715 (2008) (“Sound practice dictates that 

judges in all cases should make sure that the information provided to the parties in advance 

of the hearing, and in the hearing itself, has given them an adequate opportunity to confront 

and debate the relevant issues.”).

109 U.S. SENT’G GUIDELINES MANUAL § 6A1.3 & cmt (U.S. Sent’g 

Comm’n 2016).

110 Rule 32(i)(1)(B).

111 Rule 32(i)(4)(A)(ii).

112 Rule 32(i)(4)(A)(i).

113 Rule 32(i)(1)(C).

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D.

Bubu challenges as improper hearsay the admission of an 

investigator’s testimony about an intercepted conversation between 

LaTonya Tucker, a receptionist for Capistrano who secured money from 

patients, and Ritchie Milligan, a recruiter, in which the two discuss “Little 

Barry Hill.”114 Although evidentiary rulings are usually reviewed for abuse of 

discretion, a defendant must preserve the challenge through an objection.

115

We review unpreserved challenges for plain error.

116

Bubu argues she preserved the challenge by objecting to and 

referencing the presence of double hearsay in the challenged testimony at 

trial. But at trial, Bubu objected to a wiretapped conversation between 

Tucker and Milligan as double hearsay because it included “two different 

people talking.” The testimony about Jonathan McGillivray that Bubu 

challenges on appeal occurred after the district court overruled Bubu’s 

double hearsay objection. That objection did not preserve the error Bubu now 

urges because it was not “sufficiently specific to alert the district court to the 

nature of the alleged error and to provide an opportunity for correction.”117

We therefore review for plain error.

118

_____________________

114 See FED. R. EVID. 801(d)(2)(E); see also, e.g., United States v. El-Mezain, 664 

F.3d 467, 501–03 (5th Cir. 2011), as revised (Dec. 27, 2011) (discussing Rule 801(d)(2)(E)). 

The conversation revealed (1) that Bubu allowed Little Barry Hill to fill fraudulent 

prescriptions, and (2) that Little Barry Hill is a street name for Jonathan McGillivray.

115 United States v. Morin, 627 F.3d 985, 994 (5th Cir. 2010) (citing United States v. 

Sanchez-Hernandez, 507 F.3d 826, 831 (5th Cir. 2007)).

116 United States v. Akins, 746 F.3d 590, 597 (5th Cir. 2014).

117 United States v. Neal, 578 F.3d 270, 272 (5th Cir. 2009) (citing United States v. 

Ocana, 204 F.3d 585, 589 (5th Cir. 2000)).

118 Akins, 746 F.3d at 597.

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Bubu contends this testimony is double hearsay because “[i]t 

reflected both the conversation between Ms. Tucker and Mr. Milligan and

some prior conversation relating these facts about Mr. McGillivray to either 

Ms. Tucker or Mr. Milligan.” Bubu does not contest that the conversation 

between Tucker and Milligan is admissible under the conspiracy hearsay 

exclusion. She rather argues that Turner and Miller do not have personal 

knowledge of the information about McGillivray. But this contention brings 

no comfort. The record is insufficient to determine whether Turner or Miller 

obtained the information about McGillivray first-hand or in the furtherance 

of a conspiracy.119 Any error was neither plain nor obvious. And there was

substantial evidence about McGillivray and Bubu’s fraudulent 

transactions,120 so even if we did find errors, they did not affect Bubu’s 

substantial rights or seriously affect her trial’s fairness. We find no reversible 

error.

E.

Bubu challenges the district court’s allowing a DEA agent to 

authenticate her signature as a lay witness. Since Bubu objected at trial, the

district court’s ruling on the admissibility of evidence is reviewed for abuse 

_____________________

119 The parties argue about this possibility in their briefs. A statement is “not 

hearsay” if “[t]he statement is offered against an opposing party and . . . was made by the 

party’s coconspirator during and in furtherance of the conspiracy.” FED. R. EVID.

801(d)(2)(E).

120 Evidence at trial included text messages between McGillivray and Bubu 

disputing cash payments. McGillivray sent Bubu text messages saying things like “I will 

draw [sic] off the patients I owe you tomorrow” and “I have all the patients and all my 

money.” Bubu told McGillivray to “Please remove [her pharmacy’s] logo from vials.”And 

on the day the Texas State Board of Pharmacy went to Bubu’s pharmacy, Bubu sent 

McGillivray a series of frantic texts, including: “Emergency” and “They say all X are fake. 

Call me.”

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of discretion subject to harmless error.121 The metric is “unless manifestly 

erroneous,” we will not reverse.

122

At trial, the district court overruled Bubu’s objection to a DEA 

agent’s lay testimony identifying two of her signatures.123 The agent gained 

familiarity with Bubu’s handwriting during the course of the investigation. 

Bubu argues that familiarity developed during a criminal investigation is 

“acquired for purposes of the litigation” and not admissible as lay witness 

testimony. While we have not addressed whether an investigator who 

develops familiarity about handwriting during an investigation may 

authenticate the handwriting as a lay witness, our sister circuits have. We are 

persuaded by their reasoning.

Under Rule 901 of the Federal Rules of Evidence, a signature can be 

authenticated by “[a] nonexpert’s opinion that handwriting is genuine, based 

on a familiarity with it that was not acquired for the current litigation.”124

“Testimony based upon familiarity acquired for purposes of the litigation,” 

on the other hand, must be provided as expert testimony.125 The First, 

Second, Sixth, Eighth, and Eleventh Circuits all allow investigators who 

become familiar with handwriting in the process of solving a crime to testify 

at trial as lay witnesses.126 “Each of those circuits has drawn a distinction, 

_____________________

121 United States v. Moparty, 11 F.4th 280, 295 (5th Cir. 2021) (citations omitted).

122 Brumfield v. Hollins, 551 F.3d 322, 330 (5th Cir. 2008) (citing United States v. 

Tucker, 345 F.3d 320, 326 (5th Cir. 2003)).

123 Bubu concedes in her reply that the third signature she objected to, Tomlinson’s 

signature on a patient consultation log, has no bearing on her case.

124 FED. R. EVID. 901(b)(2).

125 FED. R. EVID. 901(b) advisory committee’s note.

126 See United States v. Iriele, 977 F.3d 1155, 1167 (11th Cir. 2020); United States v. 

Harris, 786 F.3d 443, 447–48 (6th Cir. 2015); United States v. Ali, 616 F.3d 745, 753–54 (8th 

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either explicitly or implicitly, between becoming familiar with someone’s 

handwriting ‘for the current litigation’ and doing so for the purpose of 

determining if the defendant has committed a crime.”127 We found no sister 

circuit holding differently, nor did Bubu identify one. 

Here, the agent’s testimony was not merely a “one-shot comparison” 

where a witness identifies handwriting for the first time in the courtroom 

during trial.128 Rather, over the course of the investigation, the agent 

reviewed 20,000 pages of prescriptions with witness signatures. Given that 

an “investigator is in the same position as any other lay witness who, as part 

of his job or in his day-to-day affairs, has seen examples of the defendant’s 

handwriting, such as the defendant’s ‘accountant, employee[,] or family 

member[,]’”129 we join our four sister circuits in holding that the district 

court did not err in admitting the agent’s testimony.

V.

Finally, we address Capistrano’s other claims. None is meritorious.

_____________________

Cir. 2010); United States v. Samet, 466 F.3d 251, 256 (2d Cir. 2006); United States v. Scott, 

270 F.3d 30, 48–50 (1st Cir. 2001).

127 Iriele, 977 F.3d at 1166.

128Cf. United States v. Pitts, 569 F.2d 343, 348 (5th Cir. 1978)(holding lay testimony 

was properly excluded when the “familiarity” was gained “solely by comparing the 

signature” to the witness’s signature on day of trial).

129 Iriele, 977 F.3d at 1167 (first alteration in original) (quoting Samet, 466 F.3d at 

256); see also United States v. Kilgore, 518 F.2d 496, 498 (5th Cir. 1975) (holding witnesses 

with experience viewing a defendant’s initials and the types of documents they would sign 

could prove that by affidavit).

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A.

Capistrano objects to statements made during the Government’s 

closing argument as mischaracterizing the facts. The statements were 

objected to at trial. We review for abuse of discretion.130

“A criminal conviction is not to be lightly overturned on the basis of a 

prosecutor’s comments standing alone,” and “[t]he determinative question 

is whether the prosecutor’s remarks cast serious doubt on the correctness of 

the jury’s verdict.”131 To determine whether there was prosecutorial 

misconduct, we ask whether “the prosecutor made an improper remark” and 

whether “the defendant was prejudiced.”132 Prejudice is a “high bar.”133

Capistrano objected to the Government’s assertion that he had “zero 

cancer patients.” The district court overruled the objection and instructed 

the jury: “you will remember what the evidence shows.” “The closing 

argument must be analyzed in the context of the entire case to determine 

whether it affected substantial rights of the accused. In making this 

determination, [we]should consider the strength of the [G]overnment’s case 

and the trial court’s instructions to the jury.”134 The evidence shows that a 

“few” of Capistrano’s patients were diagnosed with cancer. But Capistrano 

did not treat patients for cancer, he treated them for “pain.” So when one of 

Capistrano’s employees was asked if they saw “any cancer patients at all[,]” 

_____________________

130 See United States v. Griffin, 324 F.3d 330, 361 (5th Cir. 2003) (citation omitted).

131 United States v. Iredia, 866 F.2d 114, 117 (5th Cir. 1989) (per curiam) (citations

omitted).

132 Fields, 483 F.3d at 358 (quotation marks and citation omitted).

133 United States v. Reagan, 725 F.3d 471, 492 (5th Cir. 2013)(internal quotation and 

citation omitted).

134 United States v. Chase, 838 F.2d 743, 749 (5th Cir. 1988) (citation omitted).

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she responded “No.” Given the substantial evidence against Capistrano and 

the district court’s instructions to “remember what the evidence shows,” we 

find no reversable error. Indeed, the Government’s argument is consistent

with the evidence. Moreover, if the evidence in the case to support a 

conviction is strong, it is unlikely that the defendant was prejudiced by any

improper arguments made by the prosecutor in closing arguments.135

B.

Capistrano argues his counsel was ineffective because he did not 

request home detention, failed to make various objections, failed to 

investigate claims, failed to object to jury instructions, and failed to request a 

Franks hearing.136 Yet we review a claim for ineffective assistance of counsel 

(“IAC”) on direct appeal “[o]nly when the record is sufficiently developed 

with respect to such a claim.”137 That is, evidence or examples establishing

deficient performance or prejudice.138 We have none here. As the record is 

not sufficiently developed to evaluate Capistrano’s IAC claim, we decline to 

consider the claims on direct appeal.

139

_____________________

135 See United States v. Diaz-Carreon, 915 F.2d 951, 956 (5th Cir. 1990). Even if we 

did credit this claim, after reviewing the record and considering the relevant factors, we 

cannot conclude that remark undermines the correctness of the verdict.

136 See generally Franks v. Delaware, 438 U.S. 154 (1978).

137 United States v. Rosalez-Orozco, 8 F.3d 198, 199 (5th Cir. 1993) (internal 

quotation and citation omitted).

138 Strickland v. Washington, 466 U.S. 668, 687 (1984).

139 See United States v. Isgar, 739 F.3d 829, 841 (5th Cir. 2014); see also United States 

v. Gulley, 526 F.3d 809, 821 (5th Cir. 2008) (per curiam) (“If we cannot fairly evaluate the 

claim from the record, we must decline to consider the issue without prejudice to a 

defendant’s right to raise it in a subsequent proceeding.” (citations omitted)).

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C.

Capistrano is proceeding pro se, so we must “interpret his brief 

liberally to afford all reasonable inference which can be drawn from them.”140

By the rules, pro se “litigants must still brief the issues and reasonably comply 

with the standards of Rule 28 in order to preserve them.”141 Failure to 

comply with this Court’s rules results in dismissal.142 We will not address his 

remaining arguments as they either are frivolous or inadequately briefed.

143

VI.

In sum, we AFFIRM Appellants’ convictions and sentences. There 

is sufficient evidence for a jury to draw reasonable inferences to support 

Appellants’ convictions. Bubu and Capistrano fail to make the showings

necessary to warrant plain error reversal. Bubu’s refusal to be represented by 

her retained attorney amounted to a knowing and voluntarily waiver of

counsel. Bubu fails to show the necessary prejudice for her challenges to the 

denial for a continuance, as well as permitting a DEA agent to authenticate 

her signature as a lay witness. The Government’s closing argument was 

_____________________

140 In re Tex. Pig Stands, Inc., 610 F.3d 937, 941 n.4 (5th Cir. 2010) (citation 

omitted).

141 Arredondo v. Univ. of Tex. Med. Branch at Galveston, 950 F.3d 294, 298 (5th Cir. 

2020) (internal quotation and citation omitted).

142 Id. (citation omitted)

143 These include claims: (1) that the district court lacked subject matter 

jurisdiction over him because Article III does not mention “district court[s]”; (2) the 

Government lacked standing because the United States of America cannot be a named 

party; (3) he cannot be convicted for a Title 21 offense because he did not sign a contract 

with the United States; (4) he was not allowed to testify before being charged by a grand 

jury; (5) he was a victim of selective prosecution; (6) he had a right to a hearing of which 

he was deprived; (7) the district court inappropriately engaged in usurping the power of the 

State of Texas’s medical board; (8) the evidence offered at trial was falsified; and (9) the 

government failed to turn over his patient files.

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consistent with the evidence. The record is not sufficiently developed to 

evaluate Capistrano’s IAC claim. And Capistrano’s additional claims are 

either frivolous or insufficiently briefed. 

AFFIRMED.

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Patrick E. Higginbotham, Circuit Judge, concurring in part and 

dissenting in part: 

Decades ago, Justice Oliver Wendell Holmes, Jr., and Judge Learned 

Hand, two of our nation’s preeminent legal minds, were having lunch, and 

after breaking bread, “as Holmes began to drive off in his carriage, Hand, in 

a sudden onset of enthusiasm, ran after him, crying, ‘Do justice, sir, do 

justice.’ Holmes stopped the carriage and reproved Hand: ‘That is not my 

job. It is my job to apply the law.’”1

“The exchange between the two judges is part of an age-old struggle 

to define the relation of law and justice and to determine to which the judge 

owes loyalty.”2 In Hand’s telling of the story, he did so only “to provoke a 

response” from Holmes, knowing full-well that he agreed with Holmes’s 

view of his juridical responsibility.3 And, indeed, as students of these two 

stalwarts and their jurisprudential philosophy know both believed their duty 

and fidelity was strictly to the law rather than to one’s individual concept of a 

just outcome.4 By contrast, those like Chief Justice Earl Warren or Judge J. 

_____________________

1 ROBERT H. BORK, THE TEMPTING OF AMERICA 6 (1990). Over the years, this 

story has been told with slight variations. See, e.g., Michael Herz, “Do Justice!”: Variations 

of A Thirce-Told Tale, 82 VA. L. REV. 111, 111–12 (1996) (retelling the story as told by Hand 

himself, Bork, and Prof. Abram Chayes).

2 Herz supra n.1 at 112–13.

3 Id. at 111 (quoting Learned Hand, A Personal Confession, in The Spirit of Liberty 

302, 306-07 (Irving Dilliard ed., 3d ed. 1960)).

4 See id. at 114–15 & n.11–13; see also William J. Brennan, Jr., In Memoriam: J. Skelly 

Wright, 102 HARV. L. REV. 361 (1988) (“If useful at all, the labels may be more serviceable 

to distinguish the judge who sees his role as guided by the principle that ‘justice or 

righteousness is the source, the substance and the ultimate end of the law,’ from the judge 

for whom the guiding principle is that ‘courts do not sit to administer justice, but to 

administer the law.’ Such legendary names as Justice Holmes and Judge Learned Hand 

have been associated with the latter view.”).

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Skelly Wright, two luminaries of their day, fall into the latter category.5 With 

regard to Bubu’s conviction on Count 3, the majority is loyal to neither.

Though I join the remainder of the Court’s opinion vis-à-vis Bubu’s 

other convictions as well as those of her co-defendants, as I believe there is a 

miscarriage of justice afoot, I would not affirm the sentence imposed for her 

drug trafficking conviction in Count 3. 

I.

One month after oral argument, Bubu’s counsel moved to file 

supplemental briefing raising a new claim: “whether the Court reversibly 

erred in imposing a sentence of 20 months on Count Three, when 21 U.S.C. 

§§ 841(b)(1)(E)(3) and 846 set forth a maximum of 12 months.”6 The 

unopposed motion for leave to file was directed to me as a single judge matter 

and granted, with a request that the Government respond.7 It did, 

“agree[ing] [that] the sentence exceeded the statutory maximum and that the 

sentence could not be greater than 12 months” and urging that “the Court [] 

reform the judgment to reduce the sentence” in accordance with the 

statutory maximum rather than remanding altogether.8 In other words, the 

Government conceded plain error urging that the panel correct the error 

rather than remand for a new sentencing hearing.

_____________________

5 See Brennan, supra n.4 at 361–62; 

6 Unopposed Motion for Leave to File Supplemental Letter Brief Regarding 

Statutory Maximum on Count Three at 1, United States v. Ethel Oyekunle-Bubu, No. 21-

10620 (Dkt. No. 455). 

7 See generally Order, United States v. Ethel Oyekunle-Bubu, No. 21-10620 (Dkt. No. 

459).

8 Government’s Response to Supplemental Letter Brief at 2, United States v. Ethel 

Oyekunle-Bubu, No. 21-10620 (Dkt. No. 455).

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II.

When the Government confesses that a person is facing nearly a year 

in prison for which there is no legal basis—it matters. Nigh a century ago, the 

Supreme Court made clear that “[i]n exceptional circumstances, especially in 

criminal cases, appellate courts, in the public interest, may, of their own 

motion, notice errors to which no exception has been taken, if the errors are 

obvious, or if they otherwise seriously affect the fairness, integrity, or public 

reputation of judicial proceedings.”9 Twenty-six and a half years later, the 

High Court reaffirmed that principle.10 Since that pronouncement, our Court 

has taken that principle to heart, “recogniz[ing] an exception to” the general 

waiver rule “whereby we will consider a point of error not raised on appeal 

when it is necessary ‘to prevent a miscarriage of justice.’”11 The Federal 

Rules of Criminal Procedure specifically endow us with the authority to 

reverse a sentence on the basis of plain error, even though the defendant has 

_____________________

9 United States v. Atkinson, 297 U.S. 157, 160 (1936) (emphasis added).

10 See Silber v. United States, 370 U.S. 717, 718 (1962) (quoting Atkinson, 297 U.S. 

at 160).

11 United States v. Whitfield, 590 F.3d 325, 346 (5th Cir. 2009) (quoting United 

States v. Montemayor, 703 F.2d 109, 114 n.7 (5th Cir. 1983)); see also, e.g., United States v. 

Douglas, 910 F.3d 804, 806 (5th Cir. 2018), as revised (Dec. 19, 2018) (“The threshold 

question is whether we should address the district court’s error at all because Douglas did 

not object below or raise this issue in his opening brief. We answer in the affirmative.”); 

United States v. Delgado, 672 F.3d 320, 329 (5th Cir. 2012) (en banc) (“[I]n very rare 

instances, we have applied the plain-error standard to errors neither preserved below nor

argued on appeal.”); United States v. Gonzalez, 259 F.3d 355, 359 (5th Cir. 2001) (“We may 

raise an issue sua sponte ‘even though it is not assigned or specified’ when ‘plain error is 

apparent’” (quoting United States v. Pineda–Ortuno, 952 F.2d 98, 105 (5th Cir. 1992))); 

United States v. Musquiz, 445 F.2d 963, 966 (5th Cir. 1971) (“We notice this error on our 

own motion, as we think we are required to do when the error is so obvious that failure to 

notice it would ‘seriously affect the fairness, integrity, or public reputation of judicial 

proceedings.’” (quoting the above passage from Atkinson quoted in Silber)).

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not raised the issue on appeal.12 And of course, this issue was raised on 

appeal, albeit not in a timely fashion. To these eyes, the error at issue here

falls squarely within this exception. This is no minor error, but one the 

Government concedes will subject Bubu to nearly one year of prison beyond 

her legal sentence. 

If the point is to impose discipline upon counsel for their 

shortcomings, it misses the mark. As Chief Justice Marshall wrote just over 

two centuries ago, “the power of punishment is vested in the legislative, not 

in the judicial department. It is the legislature, not the Court, which is to 

define a crime, and ordain its punishment.”13 Affirming this sentence beyond 

what Congress permits, as our Court does today, exceeds our power and 

usurps that of the Congress. Indeed, I can think of no clearer subject of 

“exceptional circumstances” worthy of action than an unlawful sentence.14

And in conceding the error, the Government asked this Court to correct the 

error and otherwise affirm rather than remand for resentencing.15

_____________________

12 See Whitfield, 590 F.3d at 346–47 (quoting Fed. R. Crim. P. 52(b): “A plain error 

that affects substantial rights may be considered even though it was not brought to the 

court’s attention”).

13 United States v. Wiltberger, 18 U.S. 76, 95 (1820).

14 Accord, e.g., United States v. Graham, 275 F.3d 490, 522 (6th Cir. 2001) (“Both 

the Supreme Court and this circuit have found sua sponte consideration of plain error to be 

appropriate to remedy unlawful sentences imposed by the district court.”); cf. Bartone v. 

United States, 375 U.S. 52, 53 (1963) (holding that district court’s error in increasing 

sentence by one day in the absence of the defendant “was so plain . . . that it should have 

been dealt with by the Court of Appeals, even though it had not been alleged as error”). 

And beyond fairness, “judicial economy [also] dictate[s] that we address now this issue 

that would doubtless otherwise be raised in a subsequent habeas proceeding.” PinedaOrtuno, 952 F.2d at 105.

15 See generally Government’s Response to Supplemental Letter Brief, United 

States v. Ethel Oyekunle-Bubu, No. 21-10620 (Dkt. No. 455).

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Our Court has corrected errors in unlawful sentences without remand

for unlawful terms of supervised release16 or where the modification of the 

carceral term for one count did not impact the total imprisonment.

17 I would 

remand the case and allow the able district judge to exercise his discretion. 

The form of the remedy aside—affirm with a modification or 

remand—inaction ought not be countenanced, as the Court’s opinion 

demands Ethel Oyekunle-Bubu stay in prison eight months more than 

Congress deemed permissible.

_____________________

16 See United States v. McWaine, 290 F.3d 269, 277 (5th Cir. 2002) (“Although 

McWaine does not raise this issue, we have the discretion to sua sponte modify the term. 

. . . This Court has modified terms of supervised release that exceeded the statutory 

maximum without remanding for re-sentencing. Accordingly, this Court hereby modifies 

the district court’s sentence of five years’ supervised release for Count 1 to three years.”); 

United States v. Castenada, No. 00-40929, 2002 WL 334721, at *1 (5th Cir. 2002) 

(unpublished) (per curiam) (“We find that Castenada’s four-year term of supervised 

release exceeds the statutory maximum of three years. . . . We therefore modify 

Castenada’s supervised release to the statutorily mandated three-year term.”).

17 See United States v. Sotelo, 401 F. App’x 967, 969 (5th Cir. 2010) (unpublished) 

(per curiam) (“Sotelo’s 87–month sentence exceeds the statutory maximum of 60 months 

for the conspiracy offense. Accordingly, we MODIFY Sotelo’s sentence for the conspiracy 

charge to 60 months in prison. . . . The modification does not affect the overall term of 

imprisonment because Sotelo's concurrent sentence for his exportation charge exceeds the 

modified sentence. . . . Sotelo’s sentences are thus AFFIRMED as modified.”); United 

States v. Hernandez-Muniz, 354 F. App’x 133, 134 (5th Cir. 2009) (unpublished) (per 

curiam) (“The maximum term of imprisonment allowed for a violation of § 

1324(a)(1)(A)(ii) and (v)(ii) is five years. . . . As the Government concedes, HernandezMuniz’s sentence of 65 months of imprisonment for transporting an alien exceeds the 60-

month maximum and constitutes plain error that affects his substantial rights and affects 

the fairness, integrity, and public reputation of the judicial proceedings. . . . Accordingly, 

we modify the term of imprisonment imposed for Hernandez-Muniz’s conviction for 

violating § 1324(a)(1)(A)(ii) and (v)(ii) to 60 months. . . . The modification does not affect 

the overall term of imprisonment because Hernandez-Muniz’s concurrent sentence for his 

illegal reentry conviction exceeds the modified sentence for his violation of § 

1324(a)(1)(A)(ii) and (v)(ii).”).

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*****

No jurisdictional bar prevents this Court from correcting this error.18

With respect, to these eyes, refusing to do so works a manifest injustice 

without principled justification.

I accept the necessity of maintaining the guardrails of our court with 

its myriad rules of preclusion, but I would correct this error—and in doing so 

would be attending these rules, enabling their function without blinking at an 

injustice we are duty-bound to correct. This is not the pursuit of justice and 

fairness in the abstract. It is simply a citizen’s government refusing to enforce 

a prison sentence it confesses is illegal. 

With respect, I must DISSENT from affirming Bubu’s sentence for 

Count 3.

_____________________

18 See United States v. Huntsberry, 956 F.3d 270, 282 n.4 (5th Cir. 2020) (holding 

“we have jurisdiction to review even unpreserved arguments”); United States v. ArellanoBanuelos, 912 F.3d 862, 865 n.2 (5th Cir. 2019) (noting that while “‘[t]he proper time to 

closely examine the record and develop legal defenses is before the completion of 

briefing,’” and that “[w]e are even more reluctant to consider arguments raised after oral 

argument is complete and the case has been submitted for decision” because “[t]he proper 

time to closely examine the record and develop legal defenses is before the completion of 

briefing, not in the months after oral argument,” the Court retains discretion to consider 

such issues where “‘exceptional circumstances’” exist (quoting Martinez v. Mukasey, 519 

F.3d 532, 545 (5th Cir. 2008); and then quoting Silber, 370 U.S. at 718)); United States v. 

Guillen-Cruz, 853 F.3d 768, 777 (5th Cir. 2017) (“Whether we will consider an unpreserved 

argument is a matter of discretion.”).

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