1

The Honorable Andrew W. Bogue, United States District Judge for the District

of South Dakota.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 05-1710

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* District of South Dakota.

Rudolph Leopold Olguin, *

*

Appellant. *

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Submitted: October 11, 2005

Filed: November 2, 2005 

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Before ARNOLD, BOWMAN, and MURPHY, Circuit Judges.

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BOWMAN, Circuit Judge.

Rudolph Olguin was convicted by a jury of distributing a controlled substance,

Oxycodone, in violation of 21 U.S.C. § 841(a)(1) (2000). He appeals his conviction,

arguing that the District Court1

 erred in instructing the jury and in failing to grant his

motion for acquittal. We affirm.

Olguin suffers from neuropathy and takes doctor-prescribed Oxycodone to

control his pain. On December 13, 2003, Olguin gave an Oxycodone pill to Donald
2

White Thunder's death was attributed to cardiomeglia, an abnormal

enlargement of the heart.

3

Pursuant to the plain error standard, we will not correct an error not raised at

trial unless there is (1) error, (2) that is plain, (3) that affects substantial rights, and

(4) that affects the fairness and integrity of judicial proceedings. Johnson v. United

States, 520 U.S. 461, 466–67 (1997).

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White Thunder, who had come to a small party at Olguin's apartment. After crushing

the pill and injecting it into his body, White Thunder fell unconscious. The

paramedics were called, but White Thunder later died. An autopsy revealed that

White Thunder's blood-alcohol content was .277% and that White Thunder had an

elevated level of Oxycodone in his blood.2

To prove that Olguin illegally distributed Oxycodone as charged in the

indictment, the parties agree that the government was required to establish that (1)

Olguin knowingly and intentionally distributed Oxycodone to White Thunder on or

about December 13, 2003, and (2) Olguin knew at the time of distribution that

Oxycodone was a controlled substance. See Indictment at 1; 21 U.S.C. § 841(a)(1)

(2000); Eighth Circuit Manual of Model Jury Instructions (Criminal), Instruction

6.21.841B (2003).

As his first ground for appeal, Olguin asserts that the instructions given by the

District Court "confused the jury with respect to their duty to determine whether the

government proved beyond a reasonable doubt that Olguin knew he had given White

Thunder a controlled substance." Appellant's Br. at 10. Because Olguin did not

object to the instructions at trial, we review the challenged instructions for plain

error.3

 See United States v. Davis, 237 F.3d 942, 944 (8th Cir. 2001). In applying

this standard, we read the instructions as a whole to determine whether they fairly and

adequately stated the relevant law. Id.
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Olguin contends that the interplay between Instruction No. 9 and Instruction

No. 11 constituted plain error. Instruction No. 9 read: 

The crime of distribution of a controlled substance, as charged in

the indictment, has the following essential elements:

1. On or about December 13, 2003, the defendant knowingly or

intentionally distributed Oxycodone to Donald White Thunder.

2. At the time of the distribution, the defendant knew it was a 

controlled substance. 

For you to find defendant guilty of the crime charged, the

government must prove all of these essential elements beyond a

reasonable doubt; otherwise you must find defendant not guilty of this

crime.

Instruction No. 11 read:

You are instructed, as a matter of law, that Oxycodone is a

controlled substance.

It is solely for you the jury, however, to determine whether or not

the government has proved beyond a reasonable doubt that the

defendant distributed a substance, which was Oxycodone.

Olguin avers that Instruction No. 9 correctly stated the elements of the offense,

but that the first paragraph of Instruction No. 11 then obviated the requirement that

the jury determine whether Olguin knew that Oxycodone was a controlled substance.

We disagree. Instruction No. 11 simply informed the jury of the fact that Oxycodone

is legally categorized as a controlled substance. Instruction No. 11 was silent as to

the knowledge element of the offense; it certainly did not contradict the requirement

of Instruction No. 9 that the jury find that Olguin knew that he gave White Thunder
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a controlled substance. Reading the instructions as a whole, we conclude that the two

provisions fairly state the law and coexist in harmony.

Olguin also challenges the second paragraph of Instruction No. 11. He argues

that, while it informed the jurors that they must determine whether Olguin distributed

Oxycodone, it failed to repeat Instruction No. 9's directive that the jury find that

Olguin did so "knowingly or intentionally." Olguin asserts that this omission misled

the jury. Again, we conclude that Instruction No. 11's failure to repeat the elements

of the offense set forth in Instruction No. 9 did nothing to nullify the jury's duty with

respect to those elements. There was simply no need for Instruction No. 11 to

superfluously repeat the guidance provided by Instruction No. 9. Reading the two

provisions together, we find them neither contradictory nor confusing. 

The District Court instructed the jury to consider the instructions as a whole

and provided the jury with a written copy of the instructions to facilitate their

comprehension. We conclude that the jurors were adequately informed that to

convict Olguin they had to determine that the government proved both elements of

the offense, as set forth in Instruction No. 9, beyond a reasonable doubt. We find no

error, let alone plain error, in the District Court's instructions.

As his second ground for appeal, Olguin asserts that the District Court erred

in denying his motion for acquittal because the government failed to offer sufficient

evidence to establish that he distributed Oxycodone to White Thunder. Olguin

further asserts, apparently in the alternative, that the government presented no

evidence showing that Olguin knew that the Oxycodone pill he gave to White

Thunder was a controlled substance. We review the sufficiency of the evidence

necessary to sustain a conviction de novo, viewing all evidence in the light most

favorable to the government and accepting all reasonable inferences that could

support the jury's verdict. United States v. Chapman, 356 F.3d 843, 847 (8th Cir.

2004). We reverse only if no reasonable fact-finder could have found Olguin guilty
4

The recording of the DCI interview played during trial was not transcribed by

the court reporter. We therefore cite the transcript of the interview, which was

admitted at trial for demonstrative purposes and is included in the appendix to

Olguin's brief.

5

Olguin argues that autopsy results showing that the level of Oxycodone in

White Thunder's blood was greater than the level that would have resulted from

ingesting only one pill "belied any notion that the Oxycodone taken by White

Thunder was distributed to him by Olguin." Appellant's Br. at 15. Whether the

Oxycodone found in White Thunder's blood was that distributed by Olguin, however,

is not relevant to Olguin's conviction. The jury simply was required to find beyond

a reasonable doubt that Olguin knowingly distributed Oxycodone to White Thunder;

it was not required to find that White Thunder then took the additional step of

ingesting the distributed Oxycodone.

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beyond a reasonable doubt. United States v. Brown, 346 F.3d 808, 813 (8th Cir.

2003). 

The evidence introduced at trial was more than sufficient to support Olguin's

distribution conviction. An agent for the South Dakota Division of Criminal

Investigation ("DCI") testified that he interviewed Olguin after White Thunder's

death. A recording of the interview was played for the jury. During the interview,

Olguin admitted that he gave White Thunder one pill of Oxycodone, which Olguin

had gotten via a doctor's prescription. Olguin stated that he knew White Thunder

planned to inject the drug with a syringe and, indeed, that White Thunder went into

the bathroom and "shot himself up" with the Oxycodone. Tr. of DCI Interview at 5.4

Olguin's admissions during the DCI interview, alone, support the jury's finding of

guilt. Olguin unambiguously acknowledged knowingly giving an Oxycodone pill to

White Thunder on December 13, 2003—the first element of the crime.5

 Olguin

further acknowledged that he had obtained the Oxycodone by a doctor's prescription,

making it reasonable for the jury to infer that Olguin knew Oxycodone was a

controlled substance—the second element of the crime.
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The other evidence presented by the government simply buttressed the case for

conviction. For example, the government demonstrated that Olguin filled three

prescriptions for Oxycodone in the five days preceding White Thunder's death. From

this evidence a jury could reasonably infer that Olguin had knowledge of the

controlled nature of Oxycodone and its intended medical use. In addition, the officer

who responded to the report that White Thunder was unconscious outside of Olguin's

apartment testified that Olguin "acted like he had no idea what was going on" and

denied even knowing White Thunder. Trial Tr. at 17. This evidence of Olguin's

deceptive behavior could further convince a reasonable juror of Olguin's guilt. See

United States v. Clark, 45 F.3d 1247, 1250–51 (8th Cir. 1995).

Viewing the evidence in the light most favorable to the government, we

conclude that the jury's verdict is amply supported. The District Court did not err in

denying Olguin's motion for acquittal. 

Olguin's conviction is affirmed.

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