NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

RAFAEL BEIER, AKA Rafael L. Beier, 

AKA Rafael Leonhard Wolfgang Beier, 

Defendant-Appellant.

No. 17-30247 

D.C. No. 2:14-cr-00117-EJL-1 

MEMORANDUM*

Appeal from the United States District Court

for the District of Idaho

Edward J. Lodge, District Judge, Presiding

Argued and Submitted May 14, 2019

Seattle, Washington

Before: O'SCANNLAIN and FRIEDLAND, Circuit Judges, and EZRA,** District 

Judge.

Appellant, a Doctor of Osteopathic Medicine (“D.O.”) was convicted after a 

jury trial of distributing oxycodone, Adderall, and hydrocodone outside the usual 

course of his professional medical practice and without a legitimate medical 

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable David A. Ezra, United States District Judge for the 

District of Hawaii, sitting by designation.

FILED

JUL 2 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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purpose in violation of 21 U.S.C. §§ 841(a), 846, and 859. The remaining facts of 

the case are known by the parties and it is unnecessary to recite them here. 

Appellant appeals his conviction, arguing: (1) the district court clearly erred 

when it found Appellant competent; (2) the district court abused its discretion 

when it denied Appellant’s request for a new trial; (3) the district court abused its 

discretion when it refused to admit a specific defense expert’s report; 

(4) Wharton’s Rule applies, and Appellant’s conspiracy conviction should be 

vacated; (5) the district court plainly erred in failing to give an adequate specific 

unanimity instruction; (6) the substantive counts of Appellant’s conviction should 

be vacated along with his conspiracy conviction; (7) the district court abused its 

discretion in calculating the appropriate drug quantities at sentencing; and 

(8) Appellant’s case should be remanded and sent to a new district judge. For the 

reasons that follow, we AFFIRM Appellant’s conviction and sentence. 

Competency. The district court’s competency determination is a factual 

finding that must be affirmed unless clearly erroneous. See Fed. R. Civ. P. 52(a); 

United States v. Gastelum-Almeida, 298 F.3d 1167, 1171 (9th Cir. 2002). In 

making such a determination, the district court may consider the defendant’s 

irrational behavior, medical evaluations, and the court’s own interaction with the 

defendant. Davis v. Woodford, 384 F.3d 628, 644–45 (9th Cir. 2004); Williams v. 

Woodford, 384 F.3d 567, 604 (9th Cir. 2004). Although defense counsel’s 
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representations are “a factor which should be considered,” courts need not “accept 

without question” those representations. Drope v. Missouri, 420 U.S. 162, 177 

n.13 (1975). The district court made its competency determination after a two-day 

hearing which included expert testimony from both sides and one neutral, courtappointed expert and fact witnesses from both sides. The district court made 

credibility findings as to all the witnesses and credited the neutral, court-appointed 

expert’s testimony over that of the defense experts. There is no basis in the record 

for a finding that any of those credibility determinations or the ultimate

competency determination was clearly erroneous. 

Motion for New Trial. Appellant moved for a new trial based on the 

evidence presented at the competency hearing under Federal Rule of Criminal 

Procedure 33. A district court’s denial of a motion for new trial based on an 

allegation of newly discovered evidence is reviewed for abuse of discretion, United 

States v. Hinkson, 585 F.3d 1247, 1259 (9th Cir. 2009) (en banc), and the court 

considers the Harrington factors in arriving at its conclusion. United States v. 

Harrington, 410 F.3d 598 (9th Cir. 2005).1 The evidence as to competency stems 

from a Traumatic Brain Injury in 1996 and is thus not newly discovered. Beier

 

1 The Harrington factors are: (1) the evidence is newly discovered; (2) the 

defendant was diligent in seeking the evidence; (3) the evidence is material; (4) the 

evidence is not (a) cumulative or (b) impeaching; and (5) the defendant would 

probably be acquitted in a new trial based on the evidence. 410 F.3d at 601. 
4 17-30247 

could have discovered it prior to sentencing by exercising reasonable diligence, 

and his initial counsel’s failure to order a competency evaluation is not properly 

challenged in a motion for a new trial. Further, because the district court found 

Appellant competent and rejected his insanity and diminished capacity arguments, 

the evidence, even if new, did not indicate that Appellant would probably be 

acquitted in a new trial. Accordingly, the evidence fails the second and fifth 

Harrington factors, and the district court did not abuse its discretion. 

Defense Expert’s Report. The district court’s refusal to admit an expert’s 

report from an unrelated case concerning a different defendant was not an abuse of 

discretion. See Fed R. Evid. 401, 403, 703. It was not “manifestly erroneous,” and 

even if it had been in error, the error was not prejudicial, and the verdict was not 

affected by the result. Boyd v. City and County of San Francisco, 576 F.3d 938, 

943 (9th Cir. 2009). 

Wharton’s Rule. Whether a defendant may be convicted of both 

conspiracy and the underlying substantive offense is a question of law, which is 

reviewed de novo. United States v. Castro, 887 F.2d 988, 996 (9th Cir. 1989). 

Wharton’s Rule states that “an agreement by two persons to commit a particular 

crime cannot be prosecuted as a conspiracy when the crime is of such a nature as to 

necessarily require the participation of two persons for its commission.” 

1 R. Anderson, Wharton’s Criminal Law & Procedure 191 (1957); Castro, 887 
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F.2d at 996. However, where, as here, a conspiracy count “charges the existence 

of an agreement . . . to possess and distribute” and the substantive counts “charge 

actual . . . possession[] and distribution” the substantive counts can be committed 

by an individual, and therefore “the Rule has no bearing.” United States v. 

Kearney, 560 F.2d 1358, 1367 (9th Cir. 1977). Accordingly, Wharton’s Rule does 

not apply to Appellant’s convictions for conspiracy and the substantive counts of 

possession and distribution. Further, as the conspiracy count stands, we need not 

consider Appellant’s argument regarding the vacation of the substantive counts. 

Specific Unanimity Instruction. Because Appellant did not object to the 

district court’s jury instructions at trial, any alleged error in jury instructions is 

reviewed for plain error. United States v. Lapier, 796 F.3d 1090, 1096 (9th Cir. 

2015). The plain error standard requires that Appellant show: (1) error; (2) that is 

clear or obvious, rather than subject to reasonable dispute; (3) that affected 

appellant’s substantial rights, which in the ordinary case means it affected the 

outcome of the district court proceedings; and (4) that affected the fairness, 

integrity, or public reputation of judicial proceedings. Id. The district court sua 

sponte gave a specific unanimity instruction in this case, which followed the 9th

Circuit Model Criminal Jury Instruction 7.9. Because that instruction required the 

jury to reach its verdict on the conspiracy charge “with all of you agreeing as to the 

particular crime which the conspirators agreed to commit,” there was not clearly a 
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“genuine possibility of jury confusion,” Lapier, 796 F.3d at 1096, and any error 

here was not plain.

Drug Quantities at Sentencing. A district court’s evaluation of the 

reliability of the evidence at sentencing is reviewed for abuse of discretion. United 

States v. Vera, 893 F.3d 689, 692 (9th Cir. 2018). 

The district court relied on both Board of Pharmacy records and witness 

estimates to establish drug quantities for sentencing. The witnesses here testified 

in court and aspects of their testimony were corroborated by other witnesses and 

evidence. The district court therefore acted within its discretion in determining

that their statements “possess[ed] sufficient indicia of reliability to support [their] 

probable accuracy.” United States v. Forrester, 616 F.3d 929, 949 (9th Cir. 2010)

(quoting United States v. Kilby, 443 F.3d 1135, 1141 (9th Cir. 2006)). Further, the 

district court relied on the most conservative estimates of drug quantities derived 

from those witnesses’ statements, appropriately ‘“err[ing] on the side of caution’ in 

approximating the drug quantity.” Kilby, 443 F.3d at 1141 (quoting United States 

v. Culps, 300 F.3d 1069, 1076 (9th Cir. 2002)). Accordingly, the district court did 

not abuse its discretion in calculating drug quantity for sentencing. 

New District Judge on Remand. As Appellant’s conviction is affirmed on 

all bases, no remand is necessary. Therefore, the Court need not consider 
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Appellant’s argument that remand to a different district judge would be 

appropriate. 

AFFIRMED.