United States v. Willhite , 98 F. App'x 350 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS May 25, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-41391
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICHARD WILLHITE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 9:02-CR-46-1
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Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Richard Willhite appeals the sentence imposed upon his
guilty-plea conviction for conspiracy to defraud the Food and
Drug Administration (FDA), in violation of 18 U.S.C. § 371, by
violating 21 U.S.C. §§ 331(a) and 333(a)(2). He argues that he
lacked the requisite intent to defraud for his sentence to be
based on the felony provision in 21 U.S.C. § 333(a)(2) and that
the count of the indictment to which he pleaded guilty did not
*
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that this opinion should not be published and is not precedent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.
No. 03-41391
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contain a conspiring-to-defraud-the-United-States allegation and
therefore differed from the offense for which he was convicted
and sentenced.
Under 18 U.S.C. § 371, a defendant may be charged with
either conspiring to commit an offense against the United States
or conspiring to defraud the United States or one of its
agencies. The penalty provision of 18 U.S.C. § 371 does not
differentiate between the two types of conspiracies, but rather,
provides for a maximum term of imprisonment of five years if the
object of the conspiracy is the commission of a felony. Count
one of the indictment, to which Willhite pleaded guilty, charged
him with conspiring to commit offenses against the United States
by intentionally violating provisions of the Food, Drug, and
Cosmetics Act (FDCA), thereby defrauding and misleading the FDA.
See e.g., United States v. Arlen, 947 F.2d 139, 143-44 (5th Cir.
1991). It contains the intent-to-defraud language with regard to
both of the underlying offenses in 21 U.S.C. §§ 331(a) and
333(a)(2), thus making the underlying offenses, i.e., the object
of the conspiracy, punishable as felonies. Willhite’s suggestion
that he never intended to defraud the FDA is disingenuous. The
count of the indictment to which he pleaded guilty is replete
with allegations that he intended to defraud and mislead the FDA
and there is nothing in the record to suggest otherwise.
Willhite’s citation to United States v. Haga, 821 F.2d 1036,
1043 (5th Cir. 1987) is unavailing. Haga was convicted and
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sentenced for “‘the felony offense of conspiracy to defraud an
agency of the United States, the FDA’ under the ‘defraud’ clause
of section 371,” but he was indicted only under the conspiracy
“to commit any offense against the United States” clause of
18 U.S.C. § 371. Id. at 1042, 1043, 1044-45. That was not the
case for Willhite, who was indicted, convicted, and sentenced
under the “commit any offense against the United States” clause
of 18 U.S.C. § 371.
Willhite’s argument that he relied on the advice of counsel
and was therefore unaware that he was violating the law is
disingenuous. The record indicates that Willhite did not
disclose all relevant information to counsel and that Willhite
admitted at the sentencing hearing that he knew his actions were
illegal.
The Government’s evidence was sufficient to make out a
violation of 21 U.S.C. § 333(a)(2) because it demonstrated that
Willhite intentionally violated § 331(a) with the specific intent
to defraud or mislead the FDA. See Arlen, 947 F.2d at 143.
AFFIRMED.