IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-60600

UNITED STATES OF AMERICA,

Plaintiff – Appellee

v.

NICK C. TRAN,

Defendant – Appellant

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 1:08-CR-66-3

Before KING, WIENER, and CLEMENT, Circuit Judges.

PER CURIAM:

*

After a partial acquittal in his first trial, Defendant Nick C. Tran, a

pharmacist, was convicted in a second trial of charges related to the distribution

of controlled substances outside the scope of professional practice. The district

court denied his post-verdict motion for a judgment of acquittal or, in the

alternative, for a new trial. He now appeals that denial on the grounds that: (1)

his second trial violated the Double Jeopardy Clause; (2) the court erred in

excluding evidence of racial bias on the part of Government investigators; and

United States Court of Appeals

Fifth Circuit

F I L E D

June 21, 2011

Lyle W. Cayce

Clerk

 Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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(3) the court erred in refusing him permission to recall a Government witness.

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Nick C. Tran was a licensed pharmacist who owned and operated a

business called Tran’s Pharmacy in Biloxi, Mississippi. Over time, Tran’s

Pharmacy filled an increasing number of its prescriptions from the Family

Medical Center, a medical practice operated by Drs. Thomas Trieu and Thu-Hoa

Victoria Van. By 2007, the Family Medical Center accounted for ninety-eight

percent of the pharmacy’s controlled substance prescriptions. Prescriptions for

these highly abused substances—namely promethazine with codeine (a narcotic

cough syrup), alprazolam (also known by its brand name “Xanax”), and

hydrocodone (also known by its brand name “Lortab”)—written by Dr. Trieu and

filled at Tran’s Pharmacy—rose from a few hundred to seven or eight thousand

between 2003 and 2007. The Family Medical Center and Tran’s Pharmacy also

saw a large increase in out-of-market patients, including some from neighboring

Alabama.

The Drug Enforcement Agency (“DEA”) began investigating the Family

Medical Center and Tran’s Pharmacy and eventually raided both businesses,

arresting Tran as well as the two doctors. Tran was indicted on forty-three

separate counts of dispensing or distributing controlled substances outside the

scope of professional practice, nine counts of dispensing or distributing

controlled substances outside the scope of professional practice to persons under

21 years of age, one count of conspiracy to dispense or distribute such substances

outside the scope of professional practice, and one count of maintaining a place

for the purpose of manufacturing, distributing, or using any controlled substance

outside the scope of professional practice.

After a two-week trial in March 2010, the jury acquitted Tran of the fortythree counts alleging dispensing or distributing controlled substances outside

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the scope of professional practice. However, the jury failed to reach a verdict on

the conspiracy charge, the premises charge, and the nine counts concerning the

dispensing or distributing controlled substances to individuals under the age of

21.

Following this partial acquittal, Tran moved on double jeopardy grounds

to dismiss those portions of the indictment on which the jury failed to reach a

verdict. The court denied this motion. Tran was re-indicted on the conspiracy

charge, the premises charge, eleven counts of dispensing or distributing

controlled substances outside the scope of professional practice to persons under

21 years of age, and eleven counts of dispensing or distributing controlled

substances that were different from the forty-three counts in the previous

indictment on which he was acquitted. The district court denied Tran’s motion

to quash this second indictment on double jeopardy grounds, and the case went

to trial.

After the second jury found Tran guilty on all counts, Tran moved for a

judgment of acquittal or, in the alternative, for a new trial on the following

assignments of error: (1) the second trial violated his constitutional protection

against double jeopardy; (2) he should have been permitted to introduce evidence

supporting his theory that he was targeted for prosecution because of his

ethnicity; and (3) he should have been permitted to recall a Government witness

to address matters not covered during the Government’s direct examination of

that witness. The district court denied this motion, and Tran was sentenced to

ten years’ imprisonment and four years’ supervised release. He now appeals

from the district court’s order denying his motion for a judgment of acquittal or,

in the alternative, for a new trial.

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DISCUSSION

I. Double Jeopardy

Tran argues that his conviction must be reversed because his second trial

violated his Fifth Amendment right to be free of double jeopardy. This court

reviews de novo the constitutional issue of double jeopardy. United States v.

Cluck, 87 F.3d 138, 140 (5th Cir. 1996) (per curiam).

The question whether Tran’s second trial violated the Double Jeopardy

Clause is governed by Ashe v. Swenson, 397 U.S. 436 (1970). In Ashe, the

petitioner (Ashe) was accused of participating in the robbery of a group of poker

players and was indicted for the robbery of one of the players. Id. at 437–38.

The only contested issue at trial was whether he had actually been one of the

robbers. Id. at 438. Ashe was acquitted, but the state later separately indicted

him for the robbery of another one of the poker players. Id. at 439. The second

jury convicted. Id. at 440. The Supreme Court held that the Double Jeopardy

Clause incorporates the doctrine of collateral estoppel, and thereby precludes the

government from relitigating any issue that was necessarily decided by a jury’s

acquittal in a prior trial. Id. at 445–47. Straightforward application of this

principle led to the conclusion that Ashe’s second prosecution violated his

constitutional protection against double jeopardy because it relitigated the

conclusion—necessarily decided by the jury in the first trial—that Ashe had not

been one of the robbers. Id. at 445.

This court has interpreted Ashe to require a twofold inquiry for analyzing

double jeopardy claims. First, the court must determine what, if anything, the

jury necessarily decided in the first trial. Bolden v. Warden, W. Tenn. High Sec.

Facility, 194 F.3d 579, 583–84 (5th Cir. 1999). In making this determination, a

court must “examine the record of a prior proceeding, taking into account the

pleadings, evidence, charge, and other relevant matter, and conclude whether

a rational jury could have grounded its verdict upon an issue other than that

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which the defendant seeks to foreclose from consideration.” Ashe, 397 U.S. at

444 (citation and internal quotation marks omitted). Second, a court must

determine “whether the facts necessarily decided in the first trial constitute

essential elements of the offense in the second trial.” Bolden, 194 F.3d at 584.

Tran characterizes the first inquiry as a simple one because he alleges that

he only contested one issue at trial: whether his actions were knowing or

intentional. According to Tran, the jury’s acquittal on the forty-three counts

alleging distribution to specific persons age 21 and over was a general

determination that Tran did not have the intent to distribute controlled

substances outside the scope of his professional practice to anyone at any time

during the relevant conspiracy period. Tran concludes that the Government is

thus barred from retrying him on any charge during the time frame of the

alleged conspiracy that relies on the theory that Tran’s dispensations of

controlled substances occurred knowingly and intentionally.

The Government argues that Tran contested more than the element of

intent, pointing to Tran’s arguments that the DEA agents targeted him because

of his race, his challenges to the Government’s use of undercover agents, and his

attempts to otherwise show that the undercover agents’ actions involved

offensive conduct. The Government therefore suggests that the jury’s acquittals

as to individuals age 21 and older may have reflected a decision other than a

determination that Tran lacked the intent to distribute to those persons, arguing

that “it is entirely conceivable that the jurors—dissatisfied with the undercover

aspect of the Government’s case and unable to recall which counts were

associated with the undercover agents—simply chose to vote to acquit as to all

counts involving persons age 21 and over based on the assumption that DEA

agents are necessarily at least age 21.”

Neither of these arguments is persuasive. Because the jury failed to reach

a verdict as to whether Tran participated in a conspiracy to distribute controlled

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substances outside the scope of his professional practice, Tran is foreclosed from

arguing that the jury thereby necessarily determined that he lacked intent to

distribute such substances during the entire time frame of the conspiracy. See

Yeager v. United States, — U.S. —, 129 S. Ct. 2360, 2366–68 (2009) (holding that

a jury’s failure to reach a verdict on some counts is a “nonevent” that cannot, by

negative implication, inform the double jeopardy inquiry); see also United States

v. Whitfield, 590 F.3d 325, 371–72 (5th Cir. 2009).

As for the Government’s argument, this court’s inquiry into the potential

rationale of the jury “must proceed on the basis that the jury in the first trial

acted in a legally correct manner.” De La Rosa v. Lynaugh, 817 F.2d 259,

267–68 (5th Cir. 1987); see also Ashe, 397 U.S. at 444 (courts must conclude

whether “a rational jury could have grounded its verdict upon an issue other

than that which the defendant seeks to foreclose from consideration” (citation

and internal quotation marks omitted) (emphasis added)); Garcia v. Dretke, 388

F.3d 496, 504 (5th Cir. 2004) (for double jeopardy purposes, a court’s analysis

“must stay within the bounds of a rational[ ] inquiry”). As this court reasoned

in United States v. Leach, 632 F.2d 1337 (5th Cir. 1980):

Of course, the jury may have believed the Government’s case and

still have acquitted [the defendant]. . . . In this case, it is not

inconceivable that the jury might have been offended by the number

of government witnesses who had been allowed to plead guilty to

greatly reduced charges in return for their testimony, and might

have felt it unfair to convict [the defendant] in light of the lenient

treatment received by the others. However, if we consider jury

nullification as a basis on which the jury might have acquitted [the

defendant] . . . we would in effect be eliminating the entire doctrine

of collateral estoppel and greatly weakening the protection against

double jeopardy.

Id. at 1341 n.12. Although Tran raised several issues unrelated to the elements

of the crimes charged, we decline the Government’s invitation to speculate as to

any irrational reasons for the first jury’s acquittals.

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Instead, “[t]o determine the facts necessarily decided in [a defendant’s]

first trial under the first step of the collateral estoppel analysis, [a court] must

examine the elements of the statutes under which [the defendant] was charged.”

Bolden, 194 F.3d at 584. The district court informed the jury that there were

three elements it had to find beyond a reasonable doubt in order to convict Tran

of possession with intent to distribute a controlled substance (the crime charged

in the forty-three acquitted counts): (1) that the defendant distributed or

dispensed a controlled substance; (2) that the defendant did so knowingly and

intentionally; and (3) that the defendant distributed or dispensed the controlled

substance without a legitimate medical purpose or that the defendant

distributed or dispensed the drug outside the usual course of his professional

practice. At trial, Tran contested only the second element regarding intent. The

jury was not instructed that the DEA’s use of undercover agents, the motives

behind the investigation, or any other evidence or suggestion Tran raised at trial

had any bearing on its determination of this second element. Therefore, the only

basis on which a rational jury could have acquitted Tran on those forty-three

counts was the Government’s failure to prove beyond a reasonable doubt that

Tran had the necessary intent to distribute as to those counts.

In denying Tran’s motion for acquittal, the district court held that each

charge required an independent analysis, and that the effect of each acquittal

was limited to that particular individual on the particular date alleged in the

indictment. Several analogous Fifth Circuit cases support this result. In

Douthit v. Estelle, 540 F.2d 800 (5th Cir. 1976), the defendant was accused of

raping a woman in three different counties within a twenty-two hour time

period. The state indicted and tried him for the rapes that were allegedly

committed in Williamson County, although it introduced evidence at trial as to

the alleged criminal acts in all three counties. Id. at 802. The defendant’s main

defense was that the victim gave her consent. Id. The jury acquitted the

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defendant by a general verdict of not guilty. Id. The state then tried him for the

rape that was committed in Travis County, once again introducing evidence of

the criminal acts in all three counties. Id. This time, the jury convicted. Id.

On appeal, the defendant argued that, because the state had introduced

evidence of all the assaults during the first trial, the first jury must necessarily

have found that the victim’s consent extended to all of his actions throughout the

three counties during the entire twenty-two hours. Id. at 804. The Fifth Circuit

disagreed, holding that the acts were “not only separate in the eyes of the law

[but also] separate in point of fact, being removed from each other by

considerable time, distance and circumstances.” Id. at 805. Specifically, the

issue of the consent of the victim to the assault in Travis County was a different

issue, both legally and factually, from the issue of the consent of the victim to the

assaults in Williamson County, which occurred the next day. Id. The court held

that distinction to be dispositive, stating that it was “not logically or legally

necessary for the first jury . . . by its general verdict of not guilty, to have decided

both issues of consent in favor of Petitioner.” Id. at 806. In other words, because

the first jury could have grounded its general verdict of acquittal solely upon a

finding that the victim consented to the assault in Williamson County, the state

was not foreclosed from prosecuting the defendant for the assault in Travis

County.

In United States v. Griggs, 651 F.2d 396 (5th Cir. Unit B July 1981), the

defendant was indicted on three separate counts of passing counterfeit bills. At

trial, he averred that he was unaware that the bills were counterfeit. Id. at 398.

The court granted the defendant’s motion for directed verdict on one of the

counts, and the jury acquitted on the other two. Id. Subsequently, the

defendant was re-indicted on one count of conspiracy, two counts of sale, one

count of possession, and one count of attempt to pass counterfeit bills. The

attempt count was predicated on the same transaction on which the defendant

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had received a directed verdict in the first trial. Id. The defendant moved to

dismiss the indictment on double jeopardy grounds. Id. The Fifth Circuit held

that, while the attempt count was barred, the counts alleging conspiracy, sale,

and possession of counterfeit bills were not barred by the doctrine of collateral

estoppel because “it is entirely possible that the defendant had the requisite

knowledge on one occasion and not on another . . . .” Id. at 400 (internal

quotation marks omitted).

Like the issues of consent in Douthit and knowledge in Griggs, the issue

of intent in this case is a separate inquiry as to each count. Each of the fortythree counts alleged that Tran illegally distributed drugs to a particular person

on a particular date. By acquitting Tran on these forty-three counts, the jury

necessarily determined that Tran lacked intent to illegally distribute drugs to

specific persons as identified on specific dates. However, this conclusion does not

constitute a determination that Tran lacked intent to illegally distribute drugs

to other persons on other dates. The forty-three acts charged in the first trial

were separate in the eyes of the law as well as being separate in point of fact

from the twenty-two acts charged in the second trial, “being removed from each

other by considerable time . . . and circumstances.” Douthit, 540 F.2d at 805.

Tran therefore fails to carry his burden to demonstrate that “the issue whose

relitigation he seeks to foreclose was actually decided in the first proceeding.”

Dowling v. United States, 493 U.S. 342, 350 (1990).

The second step in the Ashe analysis is to decide whether the Government

seeks to relitigate the conclusion necessarily reached by the first jury through

any of the charges brought in the second trial. Accord Bolden, 194 F.3d at 584.

We hold that it does not. Charging Tran with new counts of distribution based

on specific and unique transactions not listed in the first indictment does not

require relitigation of Tran’s intent as to those transactions that were charged

in the first indictment. Furthermore, the first jury’s acquittals did not

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necessarily rest on a finding that Tran did not participate in a conspiracy or on

a finding that he did not maintain a premises for the illegal distribution of

controlled substances. Finding that Tran conspired to distribute such controlled

substances, and finding that he maintained a premises for the distribution of

such substances, are not inconsistent with the first jury’s finding that he did not

intend to distribute such substances in the forty-three instances specified in that

indictment.

We therefore hold that Tran’s second trial did not violate the Double

Jeopardy Clause, and the district court did not err in denying his motion for

judgment of acquittal, or in the alternative for new trial, on that basis.

II. Exclusion of Evidence of Racial Discrimination

Prior to Tran’s second trial, the Government moved in limine to preclude

evidence of a race-based motive for the investigation of Tran on the ground that

such evidence was irrelevant under Rule 402 or that its probative value was

outweighed by the danger of unfair prejudice under Rule 403 of the Federal

Rules of Evidence. The district court granted the motion during the pre-trial

conference, stating that this case “has absolutely nothing to do with race.” Tran

argues that this ruling was in error.

A. Standard of Review

As a threshold matter, the Government argues that Tran failed to preserve

this argument for appeal by making an offer of proof or by seeking to offer the

excluded evidence at trial, and that this court’s review should therefore be for

plain error only.

“[N]either the Rules nor this Circuit require a formal offer to preserve

error.” United States v. Ballis, 28 F.3d 1399, 1406 (5th Cir. 1994). Therefore,

“the adequacy of a given informal proffer will necessarily depend on its

particular circumstances.” Id. Under the circumstances here, it was

unnecessary for Tran to make a formal offer of proof. Federal Rule of Evidence

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103(a)(2) provides that “[e]rror may not be predicated upon a ruling . . .

exclud[ing] evidence unless . . . the substance of the evidence was made known

to the court by offer or was apparent from the context within which questions

were asked.” Based on a review of the record, it is clear that the substance of the

evidence was known to the court. During the pre-trial conference in which the

court addressed the Government’s motion, the Government declined to argue its

motion, stating: “I think we have all discussed this in the previous trial, so I

won’t waste Your Honor’s time.” The court agreed, stating: “I have tried this

case, in essence, once already.” Because the court had already essentially

received the offer of proof, in the form of the evidence Tran presented in the first

trial, “a renewed objection or offer of proof at the time the evidence is to be

offered [would have been] more a formalism than a necessity.” Fed. R. Evid. 103

Advisory Committee’s Note, 2000 Amendment. Accordingly, the issue was

properly preserved for appeal and we review for abuse of discretion. Accord

Ballis, 28 F.3d at 1406–07.

B. Discussion

Federal Rule of Evidence 401 defines “relevant evidence” as evidence

“having any tendency to make the existence of any fact that is of consequence to

the determination of the action more probable or less probable than it would be

without the evidence.” Although Tran admits that “the existence of racially

virulent motives would not necessarily have disproved the Government’s

allegations,” he argues that evidence of racial bias on the part of the DEA

investigators would “have cast doubt on the credibility of the DEA’s

investigation” and would have it more likely that “the DEA’s evidence regarding

Tran’s state of mind was slanted and unreliable.”

In challenging the court’s refusal to permit such evidence, Tran relies on

case law relating to bias on the part of individual witnesses. However, Tran does

not allege that the court prevented him from impeaching any Government

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witness on the issue of bias; rather, he argues that he was targeted for

prosecution because of his race. This is an allegation of selective prosecution,

not of witness bias. Furthermore, Tran does not challenge the district court’s

additional finding that, even if the racial discrimination argument had some

slight relevance in this matter, it was substantially outweighed by the danger

of unfair prejudice and the danger of misleading the jury such that evidence

thereof should be excluded pursuant to Federal Rule of Evidence 403. We

therefore affirm the district court’s judgment granting the Government’s motion

in limine.

III. Refusal to Allow Tran to Recall a Government Witness

Finally, Tran argues that his conviction should be reversed because the

district court improperly refused him permission to recall a Government witness

in order to address matters outside the scope of that witness’s direct

examination. We review a district court’s decision on recall of a witness for

abuse of discretion. See United States v. Masat, 948 F.2d 923, 933 (5th Cir.

1991).

As part of its case in chief, the Government called Sean Baudier, a DEA

investigator, to testify about the controlled substances seized from Tran’s

Pharmacy and about instructional materials regarding the Controlled

Substances Act that the DEA provides to pharmacists. After Tran’s counsel

cross-examined Baudier on these matters, Baudier was dismissed. Tran’s

counsel later attempted to recall Baudier to question him about a tape recording

in which DEA agents allegedly discussed how to “drag Tran into the

investigation.” After allowing Tran’s counsel to conduct a proffer, the district

court denied the request to recall Baudier.

Tran argues that, because his desired line of questioning lay outside the

scope of the Government’s inquiries on direct examination, he properly refrained

from cross-examining Baudier on this matter during the Government’s case-in12

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chief and should have been permitted to recall Baudier as a defense witness.

While Rule 611(b) of the Federal Rules of Evidence states that cross-examination

“should be limited to the subject matter of the direct examination and matters

affecting the credibility of the witness,” the Rule goes on to state that a court

“may, in the exercise of discretion, permit inquiry into additional matters as if

on direct examination.” See United States v. Wolford, 614 F.2d 516, 519 (5th Cir.

1980) (concluding that district court’s decision to allow cross-examination

outside the scope of direct examination was not an abuse of discretion). Here,

the trial court granted Tran a full opportunity to cross-examine Baudier and did

not limit him to matters elicited by the Government on direct examination. Tran

did not contradict this fact when confronted with it by the district court at trial,

nor does he contest it on appeal.

Even if the district court somehow abused its discretion in refusing to

permit Tran to recall Baudier, any error was harmless. See United States v.

James, 510 F.2d 546, 551 (5th Cir. 1975). First, Baudier testified during the

proffer that he had no specific recollection of the recording at issue. Second,

Tran fails to address the district court’s finding that Baudier’s testimony would

have been barred as hearsay, because Baudier himself did not participate in the

tape-recorded discussion at issue. Finally, to the extent that Tran intended to

inquire into the timing of the DEA investigation, as the trial transcript suggests,

he did not explain why that information was relevant.

CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the district court.

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