United States v. Dessart

• Decision Date: 17 May 2016
• Docket Number: No. 14–2686.,14–2686.
• Citation: 823 F.3d 395
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Shontay DESSART, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

823 F.3d 395

UNITED STATES of America, Plaintiff–Appellee

v.Shontay DESSART, Defendant–Appellant.

No. 14–2686.

United States Court of Appeals, Seventh Circuit.

Argued June 2, 2015.

Decided May 17, 2016.

Matthew L. Jacobs, Office of the United States Attorney, Milwaukee, WI, Clint Narver, Food and Drug Administration, Silver Spring, MD, for Plaintiff–Appellee.

Timothy D. Elliott, Jordan R. Franklin, Kaitlyn Anne Wild, Rathje & Woodward, LLC, Wheaton, IL, for Defendant–Appellant.

Before POSNER, EASTERBROOK, and SYKES, Circuit Judges.

SYKES

, Circuit Judge.

From his home in tiny Reedsville, Wisconsin, Shontay Dessart manufactured and sold products containing the active chemical ingredients in numerous prescription drugs, offering them for sale online with the disclaimer “for research only” to evade the oversight of the U.S. Food and Drug Administration. He was convicted of violating the Food, Drug, and Cosmetic Act, 21 U.S.C. § 331

, with the intent to defraud or mislead the agency, which converted his violations from strict-liability misdemeanors into specific-intent felonies, id. § 333(a)(2). On appeal Dessart contends that (1) the FDA's investigator lied in procuring a search warrant and the warrant otherwise lacked probable cause; (2) the government's evidence was insufficient to prove that he acted with deceptive intent; and (3) the district court erred in instructing the jury on the definition of “prescription drug.” Long story short: Dessart lied, the investigator didn't, the warrant was backed by ample probable-cause, and there was no instructional error. We affirm.

I. Background

A. The Investigation

In September 2008 U.S. Customs and Border Protection officers in Chicago seized a package addressed to Shontay Dessart in rural Reedsville, Wisconsin. The package contained 100 injectable vials of white powder, which the officers suspected was human growth hormone (“HGH”). Customs agents contacted the FDA, and Special Agent Loris Cagnoni was assigned to lead the investigation.

Once on board Agent Cagnoni learned that a local narcotics task force in Wisconsin had received an anonymous tip in July that Dessart was operating an illegal online “pharmacy” from his home in Reedsville, selling prescription drugs on the website www.EDS–Research.com and also selling steroids in bars around Appleton, Wisconsin. Agent Cagnoni visited the website, which listed numerous body-building and performance-enhancing drugs for sale, including one called “HGH Frag,” as well as the chemicals sildenafil

, tadalafil, and vardenafil, the active ingredients in the prescription drugs Viagra, Cialis, and Levitra. The products advertised on the website carried a disclaimer saying the drugs were “for research only.”

On October 23 Customs officers intercepted a second package addressed to Dessart at the same address. This one contained 250 vials of white powder nearly identical to those in the first. Five days later a U.S. Postal Service inspector contacted Agent Cagnoni to inform him that someone by the name of Erica Lynn Gabrielsen had inquired about the delivery status of the second package via the Postal Service's package-tracking website. That same day Customs seized a third package nearly identical to the other two. This one was addressed to Gabrielsen at an apartment in Appleton.

With the third package in their custody, the agents decided to move on what they suspected was an HGH-trafficking operation. Agent Cagnoni submitted an affidavit to a magistrate judge describing the packages and their contents, the anonymous tip, and the information he had gleaned from browsing the EDS–Research website. Agent Cagnoni averred that there wasn't time to test the intercepted substances because chemical testing would “take approximately six weeks” and thus compromise the controlled delivery the agents were planning to undertake with one of the packages. The magistrate judge found probable cause and issued a search warrant for Dessart's Reedsville residence.

On October 29, after making a controlled delivery of one of the packages, state and federal agents executed the warrant. Both Dessart and Gabrielsen were home. (Gabrielsen was Dessart's girlfriend and is now his wife.) Inside the residence the agents discovered extensive evidence of a pharmaceutical manufacturing operation: raw chemicals in powder and liquid form, materials for making chewable tablets, flavorings, colorings, glass vials and bottles, packaging materials and labels, a digital scale and measuring instruments, and various other pieces of equipment associated with the manufacture, packaging, and distribution of pharmaceutical drugs. They also found a black duffle bag containing roughly 20 ready-to-ship U.S. Postal Service packages, each of which held one or more blue bottles of tablets or liquids. Labels affixed to the bottles listed “EDS Research Supplies Inc.” as their originator, along with the disclaimer “for research only.” Dessart gave the agents access to his business records—including databases listing his customers, products, and orders—and told them that computers in Gabrielsen's Appleton apartment also were used to operate the business.

While the search was ongoing, Agent Cagnoni spoke with Gabrielsen in a separate room and obtained her consent to search the Appleton apartment. The details of this conversation are disputed, specifically (1) whether Gabrielsen, who was eight months pregnant at the time, was handcuffed when she signed a consent-to-search form; (2) whether Agent Cagnoni kicked her; and (3) whether she was induced to sign by a promise that she could use her phone to arrange child care for her stepson. It's undisputed, however, that Gabrielsen signed a written consent to search her Appleton apartment, to which the third intercepted package had been addressed. There the agents seized two computers and additional evidence of the prescription-drug-trafficking operation.

The agents sent samples of the substances recovered from the Reedsville residence and the intercepted packages to the crime laboratory for chemical testing. The results came back three weeks later; the powder was not HGH after all. Rather, the raw chemicals and finished products contained the active ingredients for a variety of prescription drugs, including Viagra

, Cialis, Levitra, and Propecia.

B. Indictment and Trial

Dessart was indicted on 23 counts of violating the Food, Drug, and Cosmetic Act, 21 U.S.C. § 331

. Count 1 charged him with operating an unregistered pharmaceutical manufacturing business. Id. § 331(p). Counts 2 through 12 alleged that he sold misbranded drugs in interstate commerce. Id. § 331(a). Counts 13 through 23 alleged that he misbranded drugs held for sale after shipment in interstate commerce. Id. § 331(k)

. Violations of § 331 ordinarily are strict-liability misdemeanors, but the government alleged that Dessart committed the violations with intent to defraud or mislead the FDA, which subjected him to felony penalties. See

id. § 333(a)(2).

Dessart moved to suppress the evidence seized from his Reedsville residence and the Appleton apartment. He argued that the warrant affidavit did not establish probable cause and Gabrielsen's consent was involuntary. He also requested a Franks hearing, see Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978)

, to challenge what he claimed was a material intentional falsehood in the warrant affidavit. Specifically, he accused Agent Cagnoni of falsely stating that chemical testing would take “approximately six weeks.”

A magistrate judge concluded that the warrant was supported by probable cause and any mischaracterization of the testing time was inadvertent and immaterial. The district judge agreed and declined to suppress the evidence seized in the Reedsville search. But the judge granted the motion in part, excluding the evidence recovered from the Appleton apartment because the government hadn't established that Gabrielsen's consent was voluntary. Later, in light of our decision in United States v. Pelletier, 700 F.3d 1109 (7th Cir.2012)

, the judge revisited and reversed this ruling, concluding that the inevitable-discovery doctrine applied. Finally, the judge denied Dessart's request for a Franks hearing.

Dessart then pleaded guilty to two misdemeanor violations of the Act, avoiding the felony designation and enhanced penalties under § 333(a)(2)

. Before sentencing, however, he fired his lawyer, asked to proceed pro se, and moved to withdraw his guilty plea. The judge obliged.

That move proved inadvisable. The judge declined to reconsider the Franks ruling and rejected Dessart's second suppression motion, which was largely repetitive of the first. The case proceeded to trial, and a jury convicted Dessart on all counts.

II. Discussion

We can group Dessart's appellate arguments into three baskets: (1) challenges to the search warrant (both the probable-cause determination and the denial of his request for a Franks hearing); (2) arguments about the sufficiency of the government's evidence; and (3) a challenge to the jury instruction defining the term “prescription drug.”

A. The Search Warrant

1. Probable Cause

Dessart's first argument is that the district judge should have granted his suppression motion because Agent Cagnoni's warrant affidavit didn't establish probable cause to search his home. The proper focus of an appellate claim of this sort “is whether the judge who issued the warrant (rarely the same as the judge who ruled on the motion to suppress) acted on the basis of probable cause. On that issue we must afford ‘great deference’ to the issuing judge's conclusion.” United States v. McIntire, 516 F.3d 576, 578 (7th Cir.2008)

(internal quotation marks omitted) (first emphasis added).

The issuing magistrate judge's decision easily survives this deferential review. Three aspects of Agent Cagnoni's affidavit are particularly salient. First, the affidavit provided a detailed description of the hundreds of vials of white powder that were found...