United States v. Carr

83 F.4th 267

UNITED STATES of America, Plaintiff—Appellee, v. Clint CARR, Defendant—Appellant.

No. 22-20337

United States Court of Appeals, Fifth Circuit

FILED September 26, 2023

Appeal from the United States District Court for the Southern District of Texas, USDC No. 4:18-CR-339-2, Sim T. Lake, III, U.S. District Judge

John Benton Hurst, U.S. Attorney's Office, Kansas City, MO, Jeremy Raymond Sanders, Trial Attorney, U.S. Department of Justice, Criminal Division Fraud Section, Washington, DC, Carmen Castillo Mitchell, Assistant U.S. Attorney, U.S. Attorney's Office, Southern District of Texas, Houston, TX, for Plaintiff—Appellee.

John Torrey Hunter, Vivek Jampala, Hunter, Lane & Jampala, San Antonio, TX, for Defendant—Appellant.

Before Duncan and Wilson, Circuit Judges, and Schroeder, District Judge.^*

Stuart Kyle Duncan, Circuit Judge:

A jury convicted Clint Carr of numerous federal drug offenses related to his ownership and operation of a Texas pharmacy that was, in reality, an illegal pill mill. On appeal, Carr's arguments for overturning his convictions largely concern four audio recordings that, after being vetted by a government filter team, were turned over to the prosecution. Carr contends that the recordings intruded into privileged conversations with his attorney and prejudiced his defense and that, as a result, his indictment should have been dismissed. Finding Carr's arguments meritless, we affirm.

I. BACKGROUND

A. Facts and Proceedings

Clint Carr and his business partner, Dustin Curry, were co-owners of CC Pharmacy. They opened the original CC Pharmacy in Houston and later added "satellite" locations in Austin and Round Rock, Texas. In 2018, a Houston grand jury indicted Carr, Curry, and others for operating CC Pharmacy as a "pill mill." Specifically, the indictment charged them with conspiring to unlawfully distribute controlled substances, unlawfully distributing and dispensing controlled substances (four counts), conspiring to launder monetary instruments, and engaging in monetary transactions in property derived from specified unlawful activity (two counts). See 21 U.S.C. § 846; 21 U.S.C. § 841(a)(1), (b)(1)(C), and 18 U.S.C. § 2; 18 U.S.C. § 1956(h); 18 U.S.C. § 1957 and 18 U.S.C. § 2. Curry pled guilty of conspiring to unlawfully distribute controlled substances and cooperated with the government. Carr went to trial.

In March 2022, Curry and CC Pharmacy employees testified in detail during a five-day trial about the pharmacy's criminal operations and Carr's involvement. The evidence showed the pharmacy was a voluminous and lucrative operation. From May 2016 to November 2017, it filled 18,327 fake prescriptions and dispensed 1,685,400 units of controlled substances including hydrocodone, oxycodone, Xanax, codeine cough syrup, and Soma. This generated at least $5.58 million in revenue.

Carr's basic defense at trial was that, while he "undoubtedly lied to drug suppliers, pharmacy inspectors, and employees," nonetheless "it was not outside the realm of plausibility that [he] was in fact a naïve and foolish participant but not a conspirator." He concedes, however, "[t]hat CC Pharmacy was unlawfully distributing controlled substances," and that the government "overwhelmingly" proved this.

The jury found Carr guilty on all counts. He was sentenced to 240 months in prison to be followed by three years of supervised release.

B. The Recordings

Most of Carr's appellate arguments concern four audio recordings, which he contends violated his attorney-client privilege and prejudiced his defense. Although none were introduced at trial, we provide this detailed background on the recordings in order to fully address Carr's arguments.

Two years before trial, in March 2020, Carr agreed to allow a government filter team to review potentially privileged evidence seized from CC Pharmacy. While all this evidence was to be released to the defense, none was to be released to the prosecution until "cleared" by the filter team. During their review, the filter team found four audio recordings that included either conversations with CC Pharmacy's attorney, Don Lewis (who died in 2020), or discussions about advice received from Lewis.

Recording 1 captures an August 15, 2017, conversation between Carr, Curry, and Lewis. Lewis advises Carr and Curry how to respond to the Drug Enforcement Administration's (DEA) seizure of drugs illegally transported by pharmacy employee Jeremy Newberry. After this discussion, Carr emailed pharmacist Megan Hanson, instructing her to falsely tell the DEA that Newberry was authorized to transport the drugs but had left the requisite DEA Form 222 on the pharmacy printer.

Recording 2 captures a conversation between Carr, Curry, and Newberry, also on August 15, 2017. Carr tells Newberry that he and Curry had spoken with Lewis and, as a result, were going to plant the DEA Form 222 on the pharmacy printer.

Recording 3 captures an August 16, 2017, call between Curry and Newberry. Curry tells Newberry that he and Carr have talked to Lewis and have a "good gameplan on" to respond to the DEA seizure.

Recording 4 is from July 18, 2017—i.e., a month before Recordings 1-3. It captures a call between Carr, Curry, and CC Pharmacy pharmacists Hassan Barnes and Jose Sanchez. Barnes discusses advice received from Lewis in response to concerns raised by Sanchez about the legality of transferring drugs between CC Pharmacy locations. Barnes and Carr discuss further plans to consult with Lewis.

In June 2021, the filter team gave Carr's attorney copies of the four recordings. On September 1, 2021, they asked Carr's attorney whether he intended to assert any privilege with respect to the recordings. The team explained that, in their view, any privilege was vitiated because CC Pharmacy had forfeited its charters and the State of Texas had terminated its registrations. When Carr's lawyer did not respond, the filter team followed up on September 9, 2021, stating they planned to file a motion with the district court to authorize release of the recordings to the prosecution. After some back and forth, Carr's lawyer finally said on September 14, 2021, that he intended to assert a privilege.

On November 1, 2021, the filter team filed a motion with the district court to allow release of the recordings. The motion noted Carr's opposition in a footnote. Because, as it later explained, the court mistakenly believed the motion was unopposed, it granted the motion the next day, before Carr responded. But the filter team did not immediately release the recordings. Rather, as they explained in an email to the prosecution, they waited to see whether Carr would respond or move for reconsideration. After two weeks transpired with no action from Carr, the team finally released the recordings to the prosecution on November 16, 2021.

On January 10, 2022, the government filed its trial exhibit list with the district court. The list included Recording 4, but none of the other recordings. The local rules required Carr to object to the list by January 17, 2022, but Carr did nothing. At this point, as the district court later explained, because Carr failed to timely object, the court could have deemed any objections to the recordings waived. At a pre-trial hearing on January 20, 2022—almost three months after the filter team filed its motion and the court granted it—Carr finally told the court that he believed that the recordings were privileged and that he objected to their use at trial. The district court explained it had mistakenly thought the filter team's release motion was unopposed, and so gave Carr a week to file an objection, even though such objections had been due three days prior.

Instead of filing an objection, though, Carr moved to dismiss the indictment on January 26, 2022. The deadline for such motions had been December 1, 2021. Carr's motion argued that the prosecution's review of the recordings violated his attorney-client privilege, his Sixth Amendment right to counsel, and his Fifth Amendment right to due process. He also claimed the filter team misled the district court into believing the release motion was unopposed.

The district court denied Carr's motion as untimely. As the court explained, it had only allowed Carr to file an out-of-time objection to Recording 4, not an untimely motion to dismiss the indictment. Alternatively, the court found Carr's motion meritless because the recordings contained no discussions of trial strategy nor had the government intentionally interfered with Carr's right to counsel. Finally, the district court rejected Carr's contention that it had been misled by the filter team. To the contrary, the filter team's "motion complied with the local and Federal Rules of Criminal Procedure; and there is no evidence that Government's counsel, either the filter team or prosecutors, attempted to mislead the Court, disregarded any applicable rules, or engaged in any unprofessional conduct."

The case then proceeded to trial and, as noted, the jury found Carr guilty on all counts.

Carr now appeals. He argues the district court erred by (A) denying his untimely motion to dismiss the indictment; (B) admitting evidence concerning Carr and Curry's plan to plant the DEA form on the pharmacy printer; and (C) suggesting at the preliminary charge conference that, if Carr testified, a "deliberate ignorance" instruction would be appropriate. We consider each issue in turn.

II. STANDARD OF REVIEW

We review the denial of Carr's motion to dismiss the indictment as untimely for abuse of discretion. United States v. Dennis, 41 F.4th 732, 739 (5th Cir. 2022), cert. denied, — U.S. —, 143 S. Ct. 2616, — L.Ed.2d — (2023). If the district court did not abuse its discretion, we review the underlying motion for plain error. United States v. Vasquez, 899 F.3d 363, 373 (5th Cir. 2018). If it did abuse its discretion, we review the underlying motion de novo. United States v. Ollison, 555 F.3d 152, 160 (5th Cir. 2009).

We review ...