NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

No. 19-2056 _____________

UNITED STATES OF AMERICA

v.

MURRAY ROJAS, Appellant ________________

On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Criminal No. 1:15-cr-00169-001) District Judge: Honorable Sylvia H. Rambo ________________

Submitted Under Third Circuit L.A.R. 34.1(a) April 17, 2020 ________________

Before: CHAGARES, SCIRICA, and ROTH, Circuit Judges.

(Opinion filed: January 11, 2021) ____________

OPINION* ____________

* This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. CHAGARES, Circuit Judge.

Murray Rojas was a licensed horse trainer in Pennsylvania who was convicted by

a jury of causing prescription animal drugs to become misbranded in violation of the

Federal Food, Drug and Cosmetic Act (“FDCA”),

(k), 353(f), and

333(a), as well as conspiracy to commit misbranding in violation of

.

She now appeals her conviction and sentence, arguing that the District Court erred in

denying her motions for acquittal and in instructing the jury because it failed to

distinguish between two terms in the relevant FDCA provisions; abused its discretion in

making two evidentiary rulings; and erred in sentencing her for felony rather than

misdemeanor misbranding. For the following reasons, we will affirm.

I.

We write solely for the parties and so recite only the facts necessary to our

disposition. Pennsylvania thoroughbred horse racing regulations include the following

rule: “A person acting alone or in concert may not administer or cause to be administered

a substance to a horse entered to race . . . within 24 hours prior to the scheduled post time

for the first race, except as otherwise provided.”

(a)(2).1

Racetracks in Pennsylvania have administrative mechanisms and toxicological

laboratories for enforcing this rule, and Pennsylvania law provides for criminal sanctions

if a person intentionally acts to prevent a publicly exhibited contest — such as a horse

1 Post time is the “[d]esignated time for a horse race to start.” Horse Racing Dictionary, Pimlico, https://www.pimlico.com/racing-101/horse-racing-dictionary (last visited July 15, 2020).

2 race — from being conducted according to its rules.

.

Rojas was a state-licensed thoroughbred horse trainer who trained and raced

horses at Penn National Race Track (“Penn National”) in Grantville, Pennsylvania. She

was charged by a federal grand jury with six counts of wire fraud, one count of

conspiracy to commit wire fraud, thirteen counts of felony misbranding of animal drugs,

and one count of conspiracy to commit misbranding of animal drugs. The Government

contended that Rojas devised and executed a scheme in which she would administer, or

instruct the veterinarians working at Penn National to administer, certain prohibited

substances to her horses within twenty-four hours of post time.

Three veterinarians worked at Penn National during the relevant time period. At

trial, all three testified that Rojas routinely instructed them to administer drugs to her

horses within twenty-four hours of post time and that Rojas occasionally would

administer the drugs herself. The veterinarians further testified that they hid their

conduct by submitting fraudulent documents to the Pennsylvania Racing Commission

(the “Commission”). The veterinarians would indicate which drugs they administered

and backdate the documents to make it appear that the drugs were administered more

than twenty-four hours before post time; or, they would accurately date the document and

misrepresent the drugs that they administered.

The Government introduced administrative rulings from Penn National stewards

(the “Steward Rulings”) for races in which Rojas’s horses were disqualified for testing

positive for prohibited substances. Robert Scott Campbell, the Commission’s chief

steward at the time, testified that the stewards enforce Pennsylvania’s horse racing

3 regulations. He detailed the relevant drug testing procedures and explained that the

Steward Rulings reflect the Commission’s final decisions to disqualify horses for testing

positive for prohibited substances. Rojas objected to admission of the Steward Rulings

into evidence on hearsay and Confrontation Clause grounds, but the District Court held

that the Steward Rulings were admissible under the business records exception to the

hearsay rule and that they did not violate Rojas’s Confrontation Clause rights because

they were non-testimonial.

The District Court precluded Rojas from introducing evidence to show whether

the drugs administered to her horses within twenty-four hours of post time were

therapeutic versus performance enhancing. It ruled that the distinction was irrelevant to

whether Rojas violated

(a)(2) because that provision bars all drugs

within twenty-four hours of post time (subject to narrow exceptions not at issue),

regardless of their purpose.

At the close of trial, the District Court instructed the jury that, to find Rojas guilty

of felony misbranding, “the Government must prove beyond a reasonable doubt each of

the following”:

One, that Ms. Rojas caused prescription animal drugs to be dispensed; two, that the prescription animal drugs were held for sale . . . after they moved in interstate commerce; three, that the prescription animal drugs were misbranded because they were prescription animal drugs that were dispensed without a prescription or other order authorized by law; and four, that Ms. Rojas acted with the intent to defraud and mislead . . . .

Trial Tr. at 1458–59, United States v. Rojas, No. 15-cr-00169 (M.D. Pa. June 26, 2019),

ECF No. 202. Rojas objected to the instructions, arguing that the District Court should

4 have instructed the jury on the difference between “administering” drugs and

“dispensing” them. She asserted that “[a] drug is ‘dispensed’ when, based upon a

veterinarian’s written prescription or oral order, a drug is given for use by the patient”

while “a drug is ‘administered’ . . . when it is applied directly to the patient.” Appendix

(“App.”) 243. The District Court rejected all of Rojas’s proposed jury instructions to this

effect.

The jury acquitted Rojas on the wire fraud and conspiracy to commit wire fraud

counts and convicted Rojas on the misbranding and conspiracy to commit misbranding

counts. Through a special interrogatory in the verdict form, the jury also found that

Rojas had acted with intent to defraud or mislead.

After the verdict, the District Court denied Rojas’s motion for acquittal, in which

she had argued that the Government should not “be permitted to substitute the act of

administering a drug where a statutory act of misbranding requires proof of dispensing”

and that there was no evidence that Rojas “dispensed” animal drugs. App. 221–22.

Rojas later filed a renewed motion for judgment of acquittal arguing the same point. The

District Court denied that motion as well, and it denied Rojas’s subsequent motion for

reconsideration.

Rojas objected to the United States Probation Office’s Guidelines calculation,

arguing that she did not act with the intent to defraud or mislead required for felony

misbranding because there was no evidence that she participated in, or agreed to

participate in, the veterinarians’ false representations to the Commission. Nevertheless,

the District Court sentenced Rojas for felony misbranding because the jury found that she

5 had acted with the requisite intent. Rojas was sentenced to twenty-seven months of

imprisonment, two years of supervised release, a $5,000 fine, and a $1,400 special

assessment. Rojas timely appealed.

II.

The District Court had jurisdiction under

. We have jurisdiction

under

and 3742.

We exercise plenary review over the District Court’s denial of Rojas’s motions for

a judgment of acquittal. See United States v. Starnes,

(3d Cir. 2009).

Interpreting the evidence in the light most favorable to the Government, we will uphold

the jury’s verdict “if there is substantial evidence from which a rational trier of fact could

find the essential elements of the crime beyond a reasonable doubt.”

We review the District Court’s refusal to give specific jury instructions for abuse

of discretion, but exercise plenary review over whether the jury instructions correctly

stated the law. United States v. Friedman,

(3d Cir. 2011). We review

the District Court’s evidentiary rulings for abuse of discretion.

Finally, with respect

to Rojas’s sentencing, we exercise plenary review over the District Court’s interpretation

of the relevant statutory provision and review factual findings for clear error. See United

States v. Weaver,

(3d Cir. 2001).

III.

Rojas makes five arguments on appeal: (i) the District Court failed to instruct the

jury properly on the distinction between the terms “administer” and “dispense,” as used

in the FDCA; (ii) the Government presented insufficient evidence to support her

6 misbranding convictions because it established only that she administered animal drugs

or caused them to be administered rather than dispensed; (iii) the District Court erred in

allowing the Steward Rulings into evidence; (iv) the District Court erred in excluding

evidence that the drugs given to the horses were for therapeutic purposes; and (v) the

District Court erred in sentencing her for felony rather than misdemeanor misbranding.

A.

Rojas first argues that the terms “administer” and “dispense” have distinct

meanings in the FDCA misbranding provisions, and, as a result, the District Court erred

in refusing to instruct the jury that the terms have different meanings and that proof that

she “administered” animal drugs does not prove that she “dispensed” them. Rojas claims

that “administer” means giving a remedy to a patient whereas “dispense” means giving a

medicine to another person for that person to administer. Rojas Br. 20–29 & n.10 (citing

e.g., Administer, Webster’s Third New Int’l Dictionary 27 (2002) (“to give remedially”);

App. 165 (testimony from a Penn National veterinarian that “administer” and “dispense”

have different meanings); Pennsylvania Rules of Professional Conduct for Veterinarians,

). Rojas also emphasizes that other provisions of the FDCA use the

terms in different contexts within the same section, implying that Congress intended them

to have different meanings. See, e.g.,

(b). Finally, Rojas points to Young

v. United States, in which the Supreme Court held that “Congress, by the use of the

words ‘dispensing physicians[,]’ meant to exclude physicians administering to patients

whom they personally attend.”

(1942).

The Government responds that Rojas’s interpretation of “dispense” is inconsistent

7 with the term’s ordinary meaning, citing various dictionary definitions defining “dispense

using terms that are synonymous with ‘administer.’” Gov. Br. 26–27. It argues that

when the veterinarians injected Rojas’s horses they “both dispense[ed] and

administer[ed] the drugs themselves.” Gov. Br. 32 (quoting United States v. Rojas, No.

1:15-cr-00169,

, at *3 (M.D. Pa. May 20, 2019)). The Government

asserts that Rojas’s proposed interpretation would gut the lawful order or prescription

requirement and contravene the purpose of the FDCA by placing veterinarians who

personally administer drugs beyond its reach. Finally, it dismisses Young as

“immaterial” because it involved a now-repealed internal revenue law and distinguished

“administer” and “dispense” in the context of physician record-keeping. Gov. Br. 36.

We are unconvinced that Congress intended the term “dispense” to exclude

situations in which a veterinarian personally administers a drug. The FDCA bars the

“doing of any . . . act with respect to[] a . . . drug . . . if such act . . . results in such [drug]

being adulterated or misbranded.”

(k). And it provides that “dispensing

a drug” without a lawful prescription or order is “an act which results in the drug being

misbranded.”

§ 353(f)(1)(A)–(C). Because the FDCA does not define the word

“dispense,” “we construe it in accordance with its ordinary meaning.” United States v.

Husmann,

(3d Cir. 2014) (quoting Octane Fitness, LLC v. ICON

Health & Fitness, Inc.,

(2014)). “Interpretation of a word or phrase

depends upon reading the whole statutory text, considering the purpose and context of the

statute.”

(quoting Dolan v. U.S. Postal Serv.,

(2006)).

The terms “administer” and “dispense” have both distinct and overlapping

8 ordinary meanings; some dictionaries equate the terms, while others ascribe them distinct

definitions. Compare Administer, Black’s Law Dictionary (11th ed. 2019) (“To give

(medicine or medical treatment) to someone.”) and Dispense, Oxford English Dictionary,

https://www.oed.com/ (last visited Apr. 22, 2020) (“To mete out, deal out, distribute”; “to

administer”), with Dispense, Stedman’s Medical Dictionary 571 (28th ed. 2006) (updated

Nov. 2014) (“To give out medicine . . . ; to fill a medical prescription.”). So resort to

dictionaries is not helpful.

But the FDCA was “designed primarily to protect the health and safety of the

public.” POM Wonderful LLC v. Coca-Cola Co.,

, 108 (2014). As such,

§ 331(k) has been interpreted broadly to apply to every applicable article that has gone

through interstate commerce. See United States v. Goldberg,

, 288–89 (3d

Cir. 2008), as amended (Nov. 6, 2008). The “statute is remedial and should be liberally

construed so as to carry out its beneficent purposes.” De Freese v. United States,

(5th Cir. 1959) (quotation marks omitted).

Rojas’s interpretation of § 331(k) and § 353(f)(1) would contravene this broad

remedial purpose. If the word “dispensed” in § 353(f)(1) does not encompass instances

where veterinarians personally administer prescription drugs, they could circumvent the

lawful order or prescription requirement simply by administering drugs themselves. But,

if veterinarians sold or gave the same drug to a lay person who then administered it, that

person’s conduct would constitute misbranding. We are not convinced that Congress

intended to create such a broad exemption to misbranding by using the term “dispense”

instead of “administer” in § 353(f). The Supreme Court’s decision in Young does not

9 convince us otherwise — that case addressed an old internal revenue law with no

connection to the FDCA other than its use of the terms “administer” and “dispense.” See

315 U.S. at 259–60.

Given this interpretation of the term “dispense,” and because the District Court’s

instructions to the jury closely tracked the relevant language of the FDCA, we discern no

error in the District Court’s recitation of the law or its refusal to give the specific

instructions that Rojas requested. See United States v. Williams,

(3d

Cir. 2002).

B.

Based on the same purported distinction between “administer” and “dispense,”

Rojas contends that there was insufficient evidence to convict her of misbranding because

the Government did not present any evidence that she dispensed prescription animal

drugs. Applying our interpretation of the term “dispense” and “interpret[ing] the

evidence in the light most favorable to the Government,” it is clear that “there is

substantial evidence from which a rational trier of fact could find” that Rojas committed

misbranding. Starnes,

(quotation marks omitted). The Government

presented considerable evidence at trial that the Penn National veterinarians administered

prohibited drugs to Rojas’s horses within twenty-fours of post time at Rojas’s direction.

It also presented evidence that Rojas herself administered prohibited drugs to her horses

within twenty-four hours of post time. Based on that evidence, Rojas dispensed animal

drugs and caused animal drugs to be dispensed without a lawful order, each instance of

which qualifies as “an act which results in [a] drug being misbranded.” 21 U.S.C.

10 § 353(f)(1)(C).

C.

Rojas next argues that the District Court erred in allowing the Government to

introduce the Steward Rulings because they are hearsay. She also argues that the District

Court’s precluding her from cross-examining a witness about the Steward Rulings

violated her rights under the Confrontation Clause.

We disagree. “Documents kept in the regular course of business may ordinarily be

admitted at trial despite their hearsay status,” as long as the regularly conducted activity

is not “the production of evidence for use at trial.” Melendez-Diaz v. Massachusetts,

(2009); see also Fed. R. Evid. 803(6). To be subject to the

Confrontation Clause, a hearsay statement must be “testimonial,” meaning that it is a

“declaration or affirmation made for the purpose of establishing or proving some fact”

and “made primarily for the purpose of prov[ing] past events potentially relevant to later

criminal prosecution.” United States v. Gonzalez,

(3d Cir. 2018)

(alteration in original) (quoting United States v. Stimler,

(3d Cir.

2017)).

Campbell’s testimony established that the Steward Rulings met the criteria for the

business records exception to the hearsay rule. Campbell testified that he had been a

steward for fifteen and a half years, including three years as chief steward, and he

explained the purposes of the Steward Rulings as well as how and why they are created

and kept. This evidence established that the Steward Rulings are prepared to enforce

Pennsylvania’s horse racing rules, not to produce evidence for use in litigation. See

11 Gonzalez,

. As a result, the District Court did not abuse its discretion in

admitting the Steward Rulings into evidence, and their admission did not violate Rojas’s

rights under the Confrontation Clause.

D.

Next, Rojas argues that the District Court should not have precluded her expert

witness from testifying about whether the drugs administered were therapeutic versus

performance enhancing. She contends that the Government’s felony misbranding charge

hinged on proving that she participated in a fraud designed to win horse races and prize

money. Therefore, she argued that evidence that the drugs were not performance

enhancing is relevant to whether she perpetrated such a fraud.

We disagree. Pennsylvania’s horse racing regulations prohibit administering

drugs to horses within twenty-four hours of post time and, except for a narrow exception

not at issue, the regulations do not distinguish between therapeutic and performance-

enhancing drugs. See

.302–304. Any evidence that Rojas sought to

introduce to draw such a distinction is therefore irrelevant. Fed. R. Evid. 401. Further,

the probative value of testimony on the nature of the drugs would have been substantially

outweighed by the risks of “confusing the issues” and “misleading the jury” regarding

whether the Rojas violated

See Fed. R. Evid. 403. The District

Court did not abuse its discretion in precluding Rojas from presenting this evidence.

2 The Government objected to this testimony on the grounds that it was irrelevant under Rule 401 and risked confusing the issues under Rule 403. The District Court’s ruling was based only on Rule 401.

12 E.

Finally, Rojas argues that the District Court should not have sentenced her for

felony misbranding because the Government did not present evidence that she engaged in

any fraud or attempted to cover up her activities. She alleges that the evidence shows

that only the veterinarians were involved in falsifying documents to the Commission. For

support, she cites United States v. Goldberg, in which we vacated a defendant’s felony

misbranding convictions because he “conducted his admittedly illegal ventures in the

open.”

(3d Cir. 2008).

Again, we disagree. Felony misbranding requires the Government to prove “intent

to defraud or mislead.”

at 289 (quoting

(a)(2)). There was evidence

presented at trial tending to show that Rojas knew of the falsified reports, instructed the

veterinarians to inject substances within twenty-four hours of post time, thus

necessitating the falsified reports, knew that administering drugs on race day violated

Pennsylvania regulations, and knowingly participated in the entire venture. The

veterinarians testified that they willingly participated in the scheme and understood that it

was illegal. And the jury returned a special interrogatory in the verdict form finding that

Rojas acted with the requisite intent to defraud or mislead. We see no error in the District

Court’s sentencing Rojas for felony misbranding.3

3 We have considered the other arguments made by Rojas and determined that they are without merit.

13 IV.

For these reasons, we will affirm the District Court’s judgment of conviction and

sentence.

14