United States Court of Appeals Fifth Circuit F I L E D REVISED NOVEMBER 8, 2005 UNITED STATES COURT OF APPEALS October 25, 2005 For the Fifth Circuit Charles R. Fulbruge III Clerk

No. 04-10364

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

THOMAS CAMPBELL BUTLER, MD,

Defendant-Appellant.

Appeal from the United States District Court For the Northern District of Texas, Lubbock Division

Before WIENER, DeMOSS, and PRADO, Circuit Judges.

PER CURIAM:

Appellant Dr. Thomas Butler was convicted on 47 of 69 counts

of various criminal activity relating to work he performed as a

medical researcher at the Texas Tech University Health Sciences

Center (“HSC”). Of these 47 counts, Butler was convicted of 44

counts of contract-related crimes, including theft, fraud,

embezzlement, mail fraud, and wire fraud, (collectively, the

“Contract Counts”). Butler was also convicted of three counts

relating to the transportation of human plague bacteria (“yersinia

pestis” or “YP”), including the illegal exportation of YP to

Tanzania, the illegal transportation of hazardous materials, and making a false statement on the waybill accompanying the YP vials

shipped to Tanzania, (collectively, the “Plague Counts”). The

district court sentenced Butler to 24 months’ imprisonment followed

by 3 years’ supervised release, a $15,000 fine, and ordered him to

pay restitution to HSC in the amount of $38,675. Butler timely

filed the instant appeal. For the reasons discussed below, we

affirm.

BACKGROUND AND PROCEDURAL HISTORY

Butler was a professor and Chief of Infectious Diseases in

HSC’s Internal Medicine Department since 1987. As part of Butler’s

pay structure, a percentage of his income was provided by the State

of Texas while the remainder came from the Medical Practice Income

Plan (“MPIP”). Under MPIP, a doctor earned money by seeing

patients, receiving research grants, or conducting clinical studies

under the auspices of HSC. The monies received from the patients

a doctor treated and the funds paid out for the research/studies

was remitted to HSC. Part of these monies paid for HSC’s overhead

costs and other expenses while another part was paid out as the

non-state portion of the doctor’s income. Any remaining funds from

a clinical study was transferred to a developmental account for the

researcher’s department or division. The money in this account was

earmarked for expenses such as professional dues and business

travel, none of which was related to any particular project.

When a researcher at HSC was in a position to obtain a

2 research grant or conduct a clinical study, it was required that

the accompanying documentation be submitted to the institution for

approval. Moreover, any monies paid out as a result of the

research grant or clinical study were required to be paid directly

to the institution. Consulting contracts, however, received

different treatment from research grants or clinical studies.

Specifically, a consulting contract was viewed by HSC as a means

for a doctor to sell his or her expertise or advice directly to a

third party, such as in designing a drug study. The consulting

would not involve patient care or patient safety issues, and the

consultant would not be using HSC’s resources such as labs and

personnel. Because of these considerations, consulting contracts

were permissible without HSC’s financial involvement or approval,

unlike contracts covering clinical studies.

Between 1998 and 2001, Butler entered into several clinical

study contracts with two different pharmaceutical companies,

Pharmacia and Chiron. The first contract entered into with

Pharmacia occurred in March 1998. Under this contract, Pharmacia

agreed to pay HSC $2,400 for each patient enrolled in the clinical

study. Apparently unbeknownst to HSC, however, Pharmacia and

Butler entered into another “shadow” or “split” contract that

provided Butler with an additional $2,400 per patient enrolled in

the same study. A similar contract was entered into between

Pharmacia and Butler in the spring of 2000 and again in the fall of

2000.

3 With respect to the contract in the fall of 2000, there was

another HSC researcher, Dr. Casner, who was working on the same

study as Butler. Dr. Casner’s contract with Pharmacia was not

split, and therefore it appeared that he had a budget twice the

size of Butler’s. A representative with HSC who was aware of Dr.

Casner’s contract, contacted Butler to inform him that she could

get Butler a bigger budget. Butler allegedly refused the offer and

informed the HSC representative that he would remain in charge of

negotiating his own contracts. Butler had also negotiated two

similar contracts with Chiron (another pharmaceutical company),

using the contracts with Pharmacia as a template. The contracts

with Chiron involved drug studies that were conducted in February

1999 and March 2000.1 Butler received payments under the contracts

with Pharmacia and Chiron until August 2001.

The existence of the shadow contracts first came to the

attention of HSC in July 2002, when an HSC representative learned

from a Pharmacia representative that Butler was getting one-half of

the money from the Pharmacia studies, while HSC received the other

half. HSC initiated a preliminary investigation into the split

contracts that continued until January 9, 2003, when HSC informed

Butler by letter that an additional investigation by authorities

charged with compliance issues was to begin. In the letter, HSC

sought a response from Butler by no later than January 21, 2003.

1 By all accounts, Butler was the only researcher to have split contracts with these pharmaceutical companies.

4 For the reasons discussed below, HSC never received the requested

response.

In addition to his work at HSC in Texas, Butler conducted

plague research in Tanzania in 2001.2 Then, in April 2002, Butler

returned to Tanzania where, for approximately 10 days, he worked on

research of plague in human patients at clinics there. Part of his

research involved personally culturing and subculturing specimens

that he planned to bring back to the United States for additional

studies.

Having returned to the United States with the yersinia pestis

cultures, Butler continued his research. Then, on January 13,

2003, four days after receiving the letter from HSC auditors

warning of the impending investigation into the alleged shadow

contracts, Butler reported that 30 vials of the yersinia pestis

were missing from his HSC laboratory in Lubbock. The FBI was

immediately notified and within hours descended upon Lubbock, where

Butler was questioned. Eventually, Butler revealed that the

yersinia pestis was not actually missing, but that he had destroyed

the vials accidentally.

In April 2003, a grand jury returned a 15-count indictment

charging Butler with various crimes relating to his transporting of

yersinia pestis, the providing of false statements to FBI agents

2 This work was reportedly encouraged by the Food and Drug Administration (the “FDA”), the Center for Disease Control and Prevention (“CDC”), and the United States Army.

5 regarding yersinia pestis, and a tax crime. A superceding

indictment was returned by the grand jury in August 2003, in which

Butler was charged with 54 additional criminal counts, including

mail fraud, wire fraud, and embezzlement that arose out of Butler’s

agreements with the pharmaceutical companies and the Food and Drug

Administration (the “FDA”). Butler filed a motion seeking to sever

the Contract and Plague Counts, which the district court denied.

After a three-week trial in November 2003, the jury returned a

mixed-verdict against Butler, finding him guilty on most of the

Contract Counts and not guilty on most of the Plague Counts and the

tax count. On March 10, 2004, the district court sentenced Butler

to 24 months’ imprisonment, three years’ supervised release,

$15,000 in fines, and a $4,700 special assessment. Butler was also

ordered to pay HSC restitution in the amount of $38,675. Butler

timely filed the instant appeal.

DISCUSSION

I. Whether the district court erred by not severing the Contract Counts and the Plague Counts.

On appeal, Butler argues the Federal Rules of Criminal

Procedure and this Circuit’s case law prohibit the joinder of

unrelated criminal categories charged; here, the Contract Counts

and the Plague Counts. Butler contends that trying all the counts

together caused him prejudice. Conversely, the Government

maintains that joinder was proper because the charges in the

superceding indictment were linked as transactions within a common

6 scheme or plan.

We review a district court’s denial of a motion to sever for

an abuse of discretion. United States v. Booker,

(5th Cir. 2003). Whether the initial joinder of charges was

improper under Rule 8 of the Federal Rules of Criminal Procedure is

judged according to the allegations in the superceding indictment.

See United States v. Kaufman,

(5th Cir. 1988).

Specifically, Rule 8(a) provides that:

The indictment or information may charge a defendant in separate counts with 2 or more offenses if the offenses charged . . . are of the same or similar character, or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan.

FED. R. CRIM. P. 8(a).

Butler argues that the superceding indictment alleges no

connection between the groups of allegations, or any rationale for

suggesting that the Contract Counts were based on the same conduct

or motivation as the Plague Counts. Butler maintains the two sets

of counts are neither connected nor constitute parts of a common

scheme or plan. In support of his contention, Butler cites to

several cases in which this Court and some district courts have

identified improperly joined charges. See, e.g., United States v.

Diaz-Munoz,

(5th Cir. 1980); United States v. Lynch,

(N.D. Tex. 2001); United States v. Braig,

(E.D. Pa. 1989). None of these cases, however, are

particularly instructive. The counts involved in each of the cases

7 cited by Butler were not tied in any meaningful way to each other.

In contrast, the superceding indictment in the instant case

sufficiently sets forth how Butler’s handling of plague bacteria as

part of his research efforts was ultimately related to his scheme

to defraud HSC by concealing both his contracts with the FDA and

the split contracts Butler maintained with the two pharmaceutical

companies.

As a preliminary matter, we broadly construe Rule 8 in favor

of initial joinder. United States v. Fortenberry,

(5th Cir. 1990) (citation omitted). This Circuit has also

recognized that the transaction requirement in Rule 8 is flexible,

holding that such a transaction “may comprehend a series of many

occurrences, depending not so much upon the immediateness of their

connection as upon their logical relationship.”

(quoting

United States v. Park,

(5th Cir. 1976)).

The superceding indictment sets out such a relationship,

identifying HSC’s need to generate funding through studies

conducted by its researchers, including Butler. The indictment

specifically outlines Butler’s research into non-plague-related

diseases for Pharmacia and Chiron and his plague-related research

for the FDA.3 The indictment’s description of Butler’s scheme to

defraud explained how he failed to disclose material facts to HSC

3 The Government also points out that the superceding indictment reveals how the success of Butler’s efforts to secure his clinical study contracts depended in large part on his plague research.

8 regarding not only the Pharmacia and Chiron contracts, but also the

plague-related contracts with the FDA.

The introduction to the superceding indictment details how the

FDA offered research opportunities to medical professionals

regarding “the development and review of medications for the

prevention and treatment of illness that could be caused by

terrorists using biological agents.” The FDA subsequently

purchased Butler’s professional service, and specifically,

according to the indictment, “for the results of experimental

research regarding the post-antibiotic effect of drugs on the

microorganism Yersinia pestis,” and later “to provide experimental

results from [Butler]’s laboratory about the post-antibiotic effect

of drugs on various strains of Yersinia pestis isolated from plague

patients in Tanzania.”

Meanwhile, the actual FDA fraud counts charged Butler with

attempting to conceal the existence of his FDA contracts from HSC’s

administrative review and approval process. Butler was alleged to

have subsequently obtained payments from the FDA without

distributing any monies therefrom to HSC in accordance with HSC’s

relevant policies for doing so.

The superceding indictment clearly sets forth an alleged

common scheme that connects both Butler’s plague research and the

Pharmacia/Chiron pharmaceutical contracts to the FDA fraud counts.

In doing so, the superceding indictment, on its face, creates an

9 overlap that logically intertwines the Contract Counts with the

Plague Counts.

Even if this panel were to question the initial joinder of the

Contract Counts and the Plague Counts, Butler must still

demonstrate that he was prejudiced as a result. See United States

v. Bieganowski,

(5th Cir. 2002). A district

court should conduct separate trials if it appears that the

defendant will be prejudiced by the joinder of offenses.

“To

demonstrate reversible error, even where initial joinder was

improper, a defendant must show clear, specific and compelling

prejudice that resulted in an unfair trial.” United States v.

Simmons,

(5th Cir. 2004).

Butler maintains that the number of counts for which he was

charged was prejudicial in and of itself. Citing Drew v. United

States,

(D.C. Cir. 1964). This Court has, however,

specifically rejected that assertion. United States v. Fagan,

(5th Cir. 1987) (noting that being tried on

multiple counts, “standing alone is not grounds for a new trial”).

We have also determined that any possible prejudice can be cured by

proper jury instructions administered by the district court.

United States v. Bullock,

(5th Cir. 1995). In

this case, the district court instructed the jury as follows:

A separate crime is charged in each count of the indictment. Each count, and the evidence pertaining to it, should be considered separately. The fact that you may find the defendant guilty as to one of the crimes charged should not control your verdict as to any other

10 crime.

The jury acquitted Butler on ten of the fraud counts, nine of

the illegal transportation of plague counts, both of the counts

charging Butler with making false statements to FBI agents, and the

one tax count. Such a verdict reveals that the jury was able to

follow proper jury instructions, separately consider each charge

independently, and avoid being swayed or confused by the sheer

number of counts for which Butler was indicted. Because Butler has

not established that the initial joinder was improper, nor that he

was prejudiced by such joinder, the district court was within its

discretion when it denied Butler’s motion to sever the Contract and

Plague Counts.

II. Whether the district court erred by refusing to allow Butler to conduct discovery relating to foreign witnesses.

Butler argues the district court erred when it denied his

request to take depositions of four witnesses in Tanzania who

allegedly had direct knowledge of his research in that country.

We review a district court’s discovery rulings for an abuse of

discretion. Wiwa v. Royal Dutch Petroleum Co.,

(5th Cir. 2004). We will affirm unless the rulings are arbitrary

or clearly unreasonable.

(citing Moore v. Willis Indep. Sch.

Dist.,

(5th Cir. 2000) (internal quotations

omitted)). A court may grant a motion seeking to depose a

prospective witness based only on “exceptional circumstances and in

the interest of justice.” FED. R. CRIM. P. 15(a)(1). Butler has not

11 demonstrated exceptional circumstances or that taking these

particular depositions would serve the interest of justice.

Butler had been under indictment, including charges of which

the foreign witnesses would purportedly have had material

knowledge, since April 2003. In May 2003 and again in August 2003,

both parties sought a continuance of the trial, with Butler

indicating in both instances the need to conduct discovery from

these Tanzanian witnesses. Both of these motions were granted.

Then, on August 25, 2003, Butler again sought leave to take the

depositions of the foreign witnesses. The district court denied

the motion on September 11, 2003, stating that the motion was

“untimely and dilatory” in nature. The district court also noted

that the evidence sought was not material and the lengthy and

indeterminate continuance that would have resulted was

impracticable.

Essentially, Butler maintains the foreign witnesses would have

supported Butler’s contention at trial that he had a good faith

belief that he was in compliance with the rules of both U.S. and

Tanzanian requirements for shipping yersinia pestis. As the

Government points out, however, this information would have had

little material value as to Butler’s convictions for mailing the

plague samples from the United States to Tanzania. Butler was

convicted for violating U.S. export rules, not rules promulgated in

Tanzania for exporting items out of that country. In addition, the

12 jury acquitted Butler of all charges relating to the transporting

of yersinia pestis from Tanzania to the United States — the only

relevant information of which the Tanzanian witnesses presumably

would have had knowledge.

Based on the substance of the testimony Butler suggests the

foreign witnesses would have provided, which materially relates to

counts on which Butler was acquitted, the district court did not

abuse its discretion when it denied Butler’s motion.

III. Whether the district court erred in quashing Butler’s pretrial subpoena requesting the production of documents from HSC.

Butler argues the district court erred by refusing his request

to obtain from HSC all emails relating to him. Specifically,

Butler contends that because the Government placed Butler’s

dealings and relations with HSC administrators at the heart of its

prosecution, it was an abuse of discretion for the district court

not to allow Butler the opportunity to pursue his theory that there

existed an animosity between he and HSC officials and that the

testifying HSC officials had acted in an improper and retaliatory

manner toward Butler.

According to the Government, Butler’s subpoena requested

documentation of any kind from September 2003 dating back to 1986

in 28 different subject matter categories. These requested

documents included compensation agreements and personnel files for

15 different people; financial audits on Butler or his studies;

internal correspondence regarding Butler; Butler’s performance

13 reviews; Butler’s contributions to HSC; a grievance Butler filed

against an HSC administrator; correspondence on Butler’s grant

funds, financial arrangements, audits, and retaliation claims;

“correspondence on communications”; and correspondence between

criminal agents and HSC.4

The district court determined that Butler’s subpoena was “too

broad and vague” and amounted to “a fishing expedition and an

attempt to conduct general discovery as against the Health Sciences

Center.” The court concluded that the subpoena was therefore

“oppressive and unreasonable and must be quashed in its entirety.”

We review a district court’s granting of a motion to quash a

subpoena for an abuse of discretion. United States v. Loe,

(5th Cir. 2001). An order quashing a subpoena is

proper if “compliance would be unreasonable or oppressive.” FED.

R. CRIM. P. 17(c)(2). This Court has previously determined that a

party seeking such a subpoena must establish: “(1) the subpoenaed

document is relevant, (2) it is admissible, and (3) that it has

been requested with adequate specificity.” Loe,

(citation omitted). Based on a review of Butler’s subpoena motion,

Butler has failed to satisfy two of the three required conditions.

First, the breadth of subject matter that Butler sought failed to

4 The Government uses as further evidence of the broadness of Butler’s subpoena motion his request for all correspondence amongst Frank Coleman, Glenda Helfrich, and Pat Campbell. Ms. Helfrich was an attorney for HSC and thus many, if not all, of her communications would have likely been privileged.

14 evoke any real relevance to the particular counts for which he was

charged, and second, many of the requested documentation clearly

lacked the requisite specificity. Accordingly, the district court

did not abuse its discretion when it quashed Butler’s subpoena.

IV. Whether the district court erred by allowing into evidence HSC policies and procedures relating to researchers’ contracts with outside entities, including pharmaceutical companies.

Butler argues one of the controversies at trial involved

identifying what contracts between HSC researchers and outside

entities were covered by HSC’s policies requiring researchers to

pay HSC a percentage of monies received under those particular

contracts. Butler maintains the district court erred when it

denied his motion in limine that sought to bar the use of HSC’s

shared fee policies as evidence of Butler’s alleged criminal

conduct.

Butler contends that United States v. Christo,

(5th Cir. 1980), which held that civil regulations cannot be used

to establish criminal liability, bars the Government’s use of HSC

policies as a basis for finding criminal liability against Butler

on the Contract Counts.

. Butler suggests that the

Government’s violation of the principle enunciated in Christo is

made even more egregious based on the fact that the Government used

school policies to establish liability — a less formal and

authoritative source than the prohibited civil regulations.

Arguing that the Government blurred the distinction between

15 criminal law and HSC policies, Butler asserts that the testimony

elicited from HSC officials suggested it was Butler’s failure to

comply with HSC policies that would ultimately be determinative of

Butler’s guilt or innocence. Lastly, Butler cites Ninth Circuit

case law for his contention that jury instructions, such as the one

given in this case, cannot cure a Christo violation. See United

States v. Wolf,

(9th Cir. 1987). Conversely, the

Government maintains that it never presented to the jury a theory

that violations of HSC policies automatically rendered Butler’s

conduct criminally fraudulent. Instead, argues the Government, it

was saddled with the burden of establishing that Butler acted

intentionally and willfully in order to prove the fraud counts and

simply used the policies to demonstrate such intent.

We review a district court’s evidentiary rulings for an abuse

of discretion. Kelly v. Boeing Petroleum Servs., Inc.,

(5th Cir. 1995). Any erroneous evidentiary ruling is

reversible error only if it affects a party’s substantial rights.

. In Christo, the case was remanded in large part

because of the instruction to the jury that the legality of certain

banking overdrafts had to be viewed in light of the civil banking

restrictions on loans to officers.

. This Court

found problematic what it saw as the prosecution attempting to

bootstrap a violation of a civil regulation into a criminal felony.

. In this case, the Government persuasively argues that

the testimony allowed by the district court was introduced to

16 explain that HSC’s policies simply governed Butler’s conduct. The

Government cites to two instances in the record where HSC

officials, when asked by the defense whether violating the policies

was itself a crime, both agreed that it was not. The introduction

of the policies was for the purpose of establishing Butler’s

knowledge of the policies and his willfulness thereafter in

defrauding HSC.

Moreover, the district court gave the jury a limiting

instruction in which the court cautioned:

You have heard testimony that Dr. Butler may have violated TTUHSC’s Operating Policies and Procedures (“TTUHSC’s Policies”). A violation of TTUHSC’s Policies in itself is not a criminal offense.

The government must prove all of the elements of the crimes charged, beyond a reasonable doubt. For example, even if you assume that Dr. Butler violated TTUHSC’s Policies, the fact that TTUHSC’s Policies were not followed does not necessarily mean that Dr. Butler possessed the requisite criminal intent to commit the offenses charged or that the government has proved the elements of the alleged crimes. If you find beyond a reasonable doubt from the other evidence in this case that Dr. Butler did commit the acts charged in the Indictment, then you may consider the evidence of a violation of TTUHSC’s Policies for the limited purpose of determining whether Dr. Butler had the state of mind or intent necessary to commit the crimes charged in the Indictment.

This Court has previously determined that this type of

limiting instruction is appropriate under these circumstances. In

United States v. Brechtel,

(5th Cir. 1993), this

Court stated that “we and our colleagues in other circuits have

recognized the value of limiting instructions in attenuating any

17 improper effect of such evidence when used for a permissible

purpose.”

at 1115 (citing United States v. Cordell,

(5th Cir. 1990); United States v. McElroy,

(2d Cir. 1990); United States v. Smith,

(9th Cir. 1989); United States v. Stefan,

(11th

Cir. 1986)). The instruction issued by the district court clearly

sets forth that any evidentiary reference to HSC policies made

during the trial was for the limited purpose of establishing

Butler’s alleged criminal intent. Accordingly, even if we were to

identify any error in the district court’s decision to admit these

policies into evidence, this particular instruction would cure any

such error.

In sum, because the HSC policies were admitted for the limited

purpose of establishing criminal intent on the part of Butler, and

because the district court issued a comprehensive limiting

instruction further clarifying the purpose of that evidence, we

find no reversible error.

V. Whether the Government presented sufficient evidence as to the Contract and Plague Counts.

Butler next argues there was insufficient evidence to support

his conviction on the Contract Counts because the HSC policies were

vague, thus casting doubt on the mens rea element of the crime.

Butler also contends the Government failed to prove beyond a

reasonable doubt that he willfully violated United States export

control laws or hazardous material regulations.

18 We review a challenge to the sufficiency of the evidence in a

criminal case to evaluate “whether a reasonable trier of fact could

have found that the evidence established guilt beyond a reasonable

doubt.” Bieganowski,

(citation and internal

quotations omitted). The jury retains the sole responsibility for

determining the weight and credibility of the evidence. United

States v. Jaramillo,

(5th Cir. 1995). In

evaluating the evidence, we view all evidence and all reasonable

inferences drawn from it in the light most favorable to the

government. Bieganowski,

. “It is not necessary

that the evidence exclude every reasonable hypothesis of innocence

or be wholly inconsistent with every conclusion except that of

guilt.”

As to Butler’s argument regarding the Contract Counts, and

more specifically his contention that the HSC policies were vague

and therefore subject to misinterpretation, there was evidence

introduced at trial that HSC reminded Butler by memo six times that

he was not to sign contracts with grantors for work done at HSC.

The Government contends these memos prove Butler’s state of mind

regardless of whether he reviewed or understood HSC’s posted

policies. Butler also argues that he thought the agreements he

entered into with Pharmacia and Chiron were consulting contracts.5

5 As stated previously, both parties stipulate that pure consulting contracts were not subject to the restrictions placed on clinical studies, research grants, or any other type of venture that involved use of HSC’s resources.

19 The Government points out, however, that it introduced at trial:

(1) language in these agreements between Butler and the

pharmaceutical companies indicating that the studies were for

clinical work (and thus subject to HSC’s policies); (2) differences

between the agreements and other documents entered into evidence

entitled “Consulting Agreements”; and (3) testimony from the

pharmaceutical representatives themselves, who characterized the

split contracts as clinical study agreements. Based on this

evidence alone, the Government presented sufficient evidence of

Butler’s intent to defraud HSC such that a reasonable trier of fact

could have found that the evidence established guilt beyond a

reasonable doubt.

Next, Butler maintains there was insufficient evidence to

support the jury’s finding that he willfully: (1) exported yersinia

pestis to Tanzania without a license; (2) described in a misleading

manner the yersinia pestis as “laboratory materials” on the FedEx

waybill; and (3) violated federal hazardous material regulations

when he shipped the yersinia pestis to Tanzania.

As to the first sub-issue, the Government points this panel to

evidence introduced at trial that Butler certified on the FedEx

waybill that the samples were being “exported . . . in accordance

with Export Administration Regulations,” when in fact they were

not. The Government notes that Butler had in his office a document

downloaded from the Center for Disease Control website that clearly

20 indicated a Department of Commerce permit was required to export

yersinia pestis. As further evidence of Butler’s knowledge of

export requirements, the Government observes that Butler previously

signed four waybills shipping hazardous materials to Canada and

checked the box indicating a Shipper’s Export Declaration was not

needed (which it is not in those circumstances). Moreover, the

Government introduced evidence that during the 1990s, Butler

properly shipped infectious substances and other dangerous goods

more than 30 times. Based on this evidence, Butler’s argument here

must fail.

With regard to Butler’s conviction for making a false

statement by labeling the yersinia pestis as “laboratory

materials,” he contends that because he did not intend to deceive

anyone, he cannot be found to have acted willfully. The Government

responds by noting that Butler also certified on that same label

that he was not shipping dangerous goods. According to the

Government, a reasonable person certainly could conclude that an

accomplished researcher, who was the Chief of Infectious Diseases

at HSC and had spent considerable time studying plague abroad,

would have known that plague was a dangerous good requiring the

proper identification thereof. Accordingly, Butler’s sufficiency

of the evidence argument on this sub-issue is also without merit.

Finally, Butler contends his conviction for violating

hazardous material regulations required the Government to prove

21 that his infraction could not have been due to a good faith mistake

or misunderstanding of the law. The Government responds with an

argument identical to its reason why there was sufficient evidence

establishing Butler’s unlawful export of yersinia pestis to

Tanzania without a license: Butler had successfully and legally

shipped hazardous materials at least 30 times before making this

particular shipment. Importantly, Butler comes forward with no

specific evidence of his own on appeal refuting the Government’s

evidence, or establishing what about his actions warranted a

finding that he made a good faith mistake or misunderstood the law.

Without more, a reasonable trier of fact could have found that the

evidence established guilt beyond a reasonable doubt.

VI. Whether the district court’s use of the 2001 Sentencing Guidelines in sentencing Butler was in violation of the Ex Post Facto Clause.

Butler argues the district court erred in using the 2001

version of the Sentencing Guidelines, instead of the 2000 version,

for purposes of his sentencing. Butler contends he was convicted

on two sets of discrete charges that occurred during different time

periods. Specifically, Butler notes that the events relating to

the Contract Counts took place between August 1998 and August 2001,

while the events underlying the Plague Counts transpired during

2002. Because the activities relating to the Contract Counts were

completed by August 2001, argues Butler, the 2000 version should

have been applied as it was in effect at that time. Butler

22 explains that had the 2000 version been used, his offense level

would have been reduced by four.

This Court reviews the district court’s application of the

Guidelines de novo and its findings of fact for clear error.6 The

district court shall apply the Guidelines in effect on the date the

defendant was sentenced, U.S. SENTENCING GUIDELINES MANUAL § 1B1.11(a)

(2004), unless such application violates the Ex Post Facto Clause

of the Constitution, and in that case, the district court shall

apply the manual in effect on the date the offense of conviction

was committed, id. § 1B1.11(b)(1).

In determining the appropriate version of the Guidelines for

sentencing purposes, the district court appears to have employed

the one-book rule, which provides that where a “defendant is

convicted of two offenses, the first committed before, and the

second after, a revised edition of the Guidelines Manual became

effective, the revised edition of the Guidelines Manual is to

applied to both offenses.” Id. § 1B1.11(b)(3). In following this

clarifying provision, the district court applied the 2001 version

of the Guidelines which was in effect on the date the events

underlying Butler’s last conviction occurred in September 2002.

Moreover, the commentary to § 1B1.11(b)(3) provides that this

6 We employ this standard of review even as to those limited cases on direct appeal at the time United States v. Booker,

(2005), was issued where the district court sentenced under a mandatory guideline system. See United States v. Villegas,

(5th Cir. 2005).

23 approach:

[S]hould be followed regardless of whether the offenses of conviction are the type in which the conduct is grouped under § 3D1.2(d). The ex post facto clause does not distinguish between groupable and nongroupable offenses.

Id. § 1B1.11(b)(3), cmt. background.7 Moreover, this Court has

previously concluded that application of § 1B1.11(b)(3) in

instances similar to the one here is permissible and does not

violate the Ex Post Facto Clause. See United States v. Kilmer,

(5th Cir. 1999). Based on the relevant guideline

provisions and the applicable commentary, we reject Butler’s ex

post facto challenge to his sentence.

CONCLUSION

Having carefully reviewed the entire record of this case, and

having fully considered the parties’ respective briefing and

arguments, we conclude the district court did not commit reversible

error by refusing to sever the Contract Counts from the Plague

Counts. Moreover, the district court made appropriate discovery

and evidentiary rulings. Also, there was sufficient evidence

supporting Butler’s convictions under the Contract Counts and the

Plague Counts. Finally, the district court’s application of the

2001 Sentencing Guidelines was not violative of the Ex Post Facto

Clause. Accordingly, we AFFIRM Butler’s conviction and sentence.

7 Butler’s criminal convictions under the Contract Counts and Plague Counts are not identified in § 3D1.2(d) as groupable offenses.

24 AFFIRMED.

25