Data443 Risk Mitigation Inc (ATDS)

[Obama_sux]

https://caselaw.findlaw.com/us-2nd-circuit/1747593.html

United States Court of Appeals, Second Circuit.
UNITED STATES OF AMERICA, Appellee, v. LENA LASHER, also known as Sealed Defendant 2, also known as Lena Contang, also known as Lena Congtang, Defendant-Appellant, Peter J. Riccio, also known as Sealed Defendant 1, John Nicholas Burling, also known as Sealed Defendant 3, Robert P. Imbernino, also known as Sealed Defendant 4, Edmond S. Kaplan, also known as Sealed Defendant 5, Timothy Kear, also known as Sealed Defendant 6, Christopher Riley, also known as Sealed Defendant 7, Adam Risolia, also known as Sealed Defendant 8, Gergana Chervenkova, also known as Sealed Defendant 9, Paul Gryszliewicz, also known as Sealed Defendant 10, Defendants.**

No. 15-2915-cr
Decided: September 02, 2016
PRESENT: GERARD E. LYNCH, SUSAN L. CARNEY, Circuit Judges, ALVIN K. HELLERSTEIN,* District Judge. FOR APPELLEE: DANIEL RICHENTHAL, Assistant United States Attorney (Kristy Greenberg, Margaret Garnett, on the brief), for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY. FOR DEFENDANT-APPELLANT: ROGER L. STAVIS (Adam M. Felsenstein, Jerry A. Weiss, on the brief), Gallet Dreyer & Berkey, LLP, New York, NY.
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UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Defendant-Appellant Lena Lasher was the supervising pharmacist at two Pennsylvania pharmacies that filled thousands of prescriptions for addictive painkillers issued over the Internet by doctors who had never met or consulted with their patients. In filling hundreds of prescriptions daily, Lasher and her employees, among other things, poured pills into vials without counting them, re-dispensed returned medication to new customers without properly inspecting the pills, and altered the instructions on pharmacy labels such that they did not correspond to what any physician had ordered.

On September 10, 2015, following a ten-day trial, Lasher was found guilty by a jury of conspiracy to misbrand drugs held for sale in violation of 18 U.S.C. § 371 (Count I); introducing misbranded drugs into interstate commerce in violation of 21 U.S.C. §§ 331(a) and 333(a)(2) and 18 U.S.C. § 2 (Count II); conspiracy to commit mail and wire fraud in violation of 18 U.S.C. § 1349 (Count III); and mail and wire fraud in violation of 18 U.S.C. §§ 1341, 1343, and 2 (Counts IV and V). She was then sentenced principally to three years' imprisonment.

On appeal, Lasher challenges (1) the sufficiency of the evidence supporting her conviction on Counts III, IV, and V; (2) the fairness of her trial; (3) the introduction of certain evidence under Fed. R. Evid. 404(b); and (4) the substantive reasonableness of her sentence. In rejecting each of these challenges, we assume the parties' familiarity with the underlying facts and the procedural history of the case.

I. Sufficiency of the Evidence

First, Lasher argues that the evidence produced at trial was insufficient to prove the mail and wire fraud counts beyond a reasonable doubt. Our review of the jury's verdict is highly deferential: we must affirm the conviction if “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Aguilar, 585 F.3d 652, 656 (2d Cir. 2009) (internal quotation marks omitted); see also United States v. MacPherson, 424 F.3d 183, 187 (2d Cir. 2005). In making that determination, we “view the evidence in the light most favorable to the government, crediting every inference that could have been drawn in the government's favor.” United States v. Chavez, 549 F.3d 119, 124 (2d Cir. 2008); see also United States v. Payne, 591 F.3d 46, 60 (2d Cir. 2010) (“[a]ssessments of witness credibility and choices between competing inferences lie solely within the province of the jury.”).

Lasher relies upon the so-called “no sale” theory to insist that while her actions might have been illegal for a host of other reasons, she did not commit mail or wire fraud because she did not defraud any customers. See United States v. Shellef, 507 F.3d 82, 108 (2d Cir. 2007) (“[o]ur cases have drawn a fine line between schemes that do no more than cause their victims to enter into transactions they would otherwise avoid—which do not violate the mail or wire fraud statutes—and schemes that depend for their completion on a misrepresentation of an essential element of the bargain—which do violate the mail and wire fraud statutes.”). But there was sufficient evidence adduced at trial, including relevant customer testimony, for a rational juror to find that the quantity, quality, and/or labeling of pills were “essential element[s] of the bargain,” and that Lasher agreed with others to make, and did herself make, false representations with respect to one or more of these elements. United States v. Schwartz, 924 F.2d 410, 421 (2d Cir. 1991); see also United States v. Regent Office Supply, 421 F.2d 1174, 1182 (2d Cir. 1970) (“fraudulent intent is apparent” where “false representations are directed to the quality, adequacy or price of the goods themselves”). As a result, Lasher's appeal as to the insufficiency of evidence fails.