IN THE DISTRICT COURT OF APPEAL OF FLORIDA
CASE NO. 3D08-3249
ERIK RODRIGUEZ and KRIS RODRIGUEZ,
THE STATE OF FLORIDA,
APPEAL FROM THE ELEVENTH JUDICIAL CIRCUIT IN AND
FOR MIAMI-DADE COUNTY, FLORIDA
REPLY BRIEF OF APPELLANTS
LAW OFFICES OF LAW OFFICE OF EMMANUEL
PAUL MORRIS, P.A. PEREZ & ASSOCIATES, P.A.
9350 South Dixie Highway 901 Ponce de Leon Boulevard
Suite 1450 Suite 101
Miami, FL 33156 Coral Gables, FL 33134
Counsel for Appellants Counsel for Appellants
TABLE OF CONTENTS
TABLE OF CITATIONS........................................................................................-ii-
REPLY ARGUMENT ............................................................................................ -1-
THE STATE FAILED TO PROVE BEYOND A REASONABLE
DOUBT THAT EITHER KRIS RODRIGUEZ OR ERIK RODRIGUEZ
COMMITTED THE CRIMES OF DRUG ADULTERATION
OR MISBRANDING.................................................................................... -1-
CONCLUSION ..................................................................................................... -14-
CERTIFICATE OF SERVICE ............................................................................. -15-
CERTIFICATE OF COMPLIANCE .................................................................... -15-
TABLE OF CITATIONS
Goldberg v. State,
351 So. 2d 332 (Fla. 1977)....................................................................................... -6-
Hampton v. State,
336 So. 2d 378 (Fla. 1st DCA 1976)....................................................................... -5-
Jacobs v. State,
396 So. 2d 713 (Fla. 1981)................................................................................ -4-, -5-
United States v. McCall,
553 F. 3d 821 (5th Cir. 2008)................................................................................... -4-
Valdes v. State,
626 So. 2d 1316 (Fla. 1993)..................................................................................... -5-
Watkins v. State,
826 So. 2d 471 (Fla. 1st DCA 2002)........................................................................ -6-
§ 499.003(19)(a-c), (30), (48); § 499.006(1-3);
§ 499.007(1), Florida Statutes .................................................................................. -1-
§ 777.011, Florida Statutes....................................................................................... -6-
THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT
EITHER KRIS RODRIGUEZ OR ERIK RODRIGUEZ COMMITTED THE
CRIMES OF DRUG ADULTERATION OR MISBRANDING.
To support each of the defendant's convictions for drug
adulteration/misbranding, the state was required to prove beyond a reasonable doubt
each of the essential elements of "drug" and "adulteration" and "misbranding" as
defined in the pertinent statute and charged to the jury in accordance with the
applicable statutory definitions1 as follows:
A drug means an article that is (a) recognized in the current edition of the
United States Pharmacopoeia and National Formulary, Official
Homeopathic Pharmacopoeia of the United States, or any supplement to
any of those publications; (b) intended for use in the diagnosis, cure,
mitigation, treatment, therapy, or prevention of disease in humans or other
animals; (c) intended to effect the structure or any function of the body of
humans or other animals.
A drug is adulterated if: (1) It contains in whole or in part of any filthy,
putrid, or decomposed substance; (2) It is produced, prepared, packed, or
held under conditions whereby it could have been contaminated with filth
or rendered injurious to health; (3) It is a drug and the methods used in, or
the facilities or controls used for its manufacture, processing, packing, or
holding do not conform to, or are not operated or administered in
conformity with current good manufacturing practices.
A drug is misbranded if its labeling is in anyway false or misleading.
See § 499.003(19)(a-c), (30), (48); § 499.006(1-3); § 499.007(1), Florida
(T. 939-40; Initial Brief of Appellants at 14-15).
Although "drugs" were seized in this case, introduced into evidence, and
displayed to the jury, no witness was able to testify that either defendant had any
connection to the drugs seized, much less that either defendant was responsible for
adulteration or misbranding of any drug as defined in the statute. The following critical
testimony of the prosecution witnesses is not disputed by the state on appeal:
1. Urrutia could not state what Kris or Erik placed in any bottles, or that either
defendant ever filled an invalid prescription. In fact, Urrutia could not even state when
he observed either Kris or Erik at the “2290 pharmacy.” (T. 245-47);
2. Urrutia also stated that there were no discussions that would have led either
Kris or Erik to believe that anything improper was taking place at the business. (T.
3. As for the seizure of medications, the lead agent testified that: no bottle, label
or document could be connected either to Kris or Erik; no undercover agents were
used; he had no knowledge of where the bottles were filled or whether they were filled
in the presence of a pharmacist; and no controlled purchases were attempted. (T. 310-
13, 326-27, 337);
4. Furthermore, the lead agent testified that it was possible that some of the
seized evidence was part of [state witness] Barquin's separate illegal pharmacy
business. (T. 325);
5. When the search warrant was executed at 2290, neither of the two
defendants was even present. (T. 430-31);
6. Barquin observed the defendants at 2290 but could not say how many
times or when. (T. 438, 470-72);
7. Barquin identified photographs taken at 2290 of pills and bottles but could
not state who counted or bottled or labeled any of those pills. (T. 434-35, 440). Nor
could he recall what was on any of the labels. (T. 441);
8. Hernandez could not say what medications were handled by either defendant.
9. On October 25, 2004, Hernandez was stopped by police as he was loading
filled prescriptions from Santa Clara for delivery to Federal Express. (T. 524). Neither
defendant was present that day or the day before. (T. 541-42). The prescriptions
were seized but not one of the seized prescriptions was filled by Kris or Erik. (T.
10. Cesar Arias, the state's expert witness pharmacist, testified that he could not
connect either of the defendants to any of the allegedly invalid prescriptions. (T.
635, 641). Arias further acknowledged that none of the medications was subjected to
laboratory analysis. (T. 650).
In sum, there is no proof at all, much less beyond a reasonable doubt, identifying
a single prescription that was filled by Kris or filled by Erik. Nor is there any proof
identifying a single “drug” (as charged and defined) that was handled by either
defendant in violation of the adulteration/misbranding statute. At most, the state's case
is one of "guilt by association," comprised of the testimony of cooperating witnesses
who pled guilty and either worked with one or both of the defendants at various
unspecified times, or observed them at work, but who could not link either defendant to
a single "drug" as charged, much less an "adulteration" or "misbranding."
Nor was there any testimony that connected the elements of the crimes at issue
to each of the defendants separately. Instead, the prosecuting witnesses referred to the
defendants collectively. Apparently, the prosecution strategy was that because the
prosecution witnesses were guilty, the defendants who also worked at the same place
of employment were guilty. Needless to say, guilt by association is universally
condemned. See United States v. McCall, 553 F.3d 821, 826 (5th Cir. 2008) (noting
that every federal circuit has rejected the notion of guilt by association).
In sum, this record lacks the required proof of the essential elements of the
crimes charged, as to each defendant, with regard to the required showing of "drug"
and "adulteration" and "misbranding."
Forced to concede that no witness could identify a single medication handled by
either defendant, the state attempts to save the convictions based upon Jacobs v. State,
396 So. 2d 713 (Fla. 1981). That decision reiterates the proposition that a defendant
who participates with another in a common criminal scheme is guilty of all crimes
committed in furtherance of that scheme regardless of whether he physically
participates in that crime. State's Answer Brief at 18. The state then believes that the
following conclusion flows from Jacobs: "Because Defendants were charged under the
principal theory (R. 27, 39), no physical connection with any particular drug was
required, merely participation in the common scheme embodied in the Internet
operation." State's Answer Brief at 18-19.
Jacobs does not apply here. In Jacobs, the Supreme Court of Florida affirmed a
principal theory for kidnaping where the defendant, in furtherance of the kidnaping,
participated in a murder and coerced the victim into a car. In Valdes v. State, 626 So.
2d 1316 (Fla. 1993), the Supreme Court of Florida explained Jacobs and similar
decisions as follows: "The key question in these [principal liability] cases is 'whether
the extra criminal act done by one's confederate is in furtherance or prosecution of the
initial common criminal design.'" Id. at 1322 (quoting Hampton v. State, 336 So. 2d
378, 380 (Fla. 1st DCA 1976)). Here, by contrast, there is no "extra criminal act" at
issue for which the defendants can be held liable under a principal theory. The only
criminal act at issue in this case is drug adulteration/misbranding. Moreover, simply
because the defendants were part-time pharmacy technicians at the same place of
employment as the witnesses who pled guilty does not constitute a common scheme.
Furthermore, the record supports no other theory of liability as a principal in the
first degree (under § 777.011, Florida Statutes) because the record is devoid of the
required proof that either of the defendants "intend[ed] that the crime be committed and
do some act to assist the other person in actually committed the crime." Watkins v.
State, 826 So. 2d 471, 474 (Fla. 1st DCA 2002). No witness testified that either Kris or
Erik incited or caused another to commit drug adulteration or drug misbranding. In the
absence of such proof, a conviction cannot stand upon a theory of principal liability.
See Watkins, 826 So. 2d at 474 (rejecting state's claim that there was sufficient
evidence that defendant was guilty of forgery as a principal in the first degree where
"none of the witnesses provided any evidence that appellant falsely made, altered,
forged or counterfeited the check or that he did some act or said some word that was
intended to and did incite or cause another individual to counterfeit the check.").
To the degree that the state may be attempting on appeal to impose co-
conspirator liability upon each defendant, that attempt must fail as well for two
reasons. First, the jury acquitted each defendant of conspiracy. Second, this type of
conspiracy liability theory -- where dates, times, places, and identities of co-
conspirators are vague, at best -- has been condemned by the Supreme Court of Florida
as a prohibited “shot-gun approach” which “could amount to a prosecution for general
criminality resulting in a finding of guilt by association.” Goldberg v. State, 351 So. 2d
332, 333 (Fla. 1977).
The only other aspect of the state’s brief that bears upon this appeal is found not
in its Argument, but in its Statement of the Case and Facts, where the state claims it is
turning its attention to “the participation of these particular defendants...”. (State’s
Answer Brief at 9). But the facts thereafter quoted or paraphrased from the trial
transcript, addressed below, also fail to supply any of the missing elements of this
Mr. Urrutia testified that both Kris and Erik would work at the Internet
operation in the location next door to Santa Clara: “When needed, I
would call their father and when Arturo [Aleman] called me and tell me
he needs help, and he would say, let me see which one of the kids was
available and he would try to get them over there.” (T. 210). Mr. Urrutia
saw them personally at the 2290 location, “[a] couple of times .... They
were helping -- whatever they needed to do. If it was, you know,
packaging, or if it was taking the stuff to the couriers.” (T. 210-11).
State’s Answer Brief at 9. Once again the state offers a generalized approach to
“proof” which fails to support the convictions. The referenced testimony does nothing
more than show that each defendant would appear for work when asked by his father
and would engage in “packaging” or taking “stuff” for deliveries. Such testimony
hardly rises to the level of proof beyond a reasonable doubt as to any of the essential
elements of "drug” or “adulteration” or “misbranding."
At page 9 of its brief, the state recognizes: "These defendants didn’t actually
type up the prescriptions." The state then quotes the trial testimony on this point as
The typing up was done by -- it came in automatically, and it would come
up on the computer and print from the printer or that was to be done later
by either Mike or Arturo. They couldn’t do that part. They would just do
the peel, stick, count, and send.
State’s Answer Brief at 9 (quoting T. 232). That the defendants did not type up labels
is exculpatory as to the charge of misbranding. Regardless, nothing in the quoted
testimony proves either defendant committed a single illegal act.
The state also references an agent’s testimony recounting a statement made to
him by Erik. (State’s Answer Brief at 9-10). The agent’s testimony was that Erik stated
that “he would pick up packages at the 2290 Southwest 8th Street location, which is the
Santa Clara location, and deliver them to the UPS in his vehicle ...”. (T. 364-65). But
there is no identification of the contents of the “packages,” much less any evidence of
Erik’s knowledge of their contents or anything illegal about the packages.
The state then references (State’s Answer Brief at 10) the agent’s testimony
about a statement made by Kris -- that he expressed concern to his father that due to a
change in state law, the business “may no longer be in compliance...”. (T. 407-08). But
Kris’ statement is merely his concern or opinion, not a confession to the commission
of any crime, and certainly not an admission that he committed the crimes of
misbranding or adulteration.
The state also relies (State’s Answer Brief at 10) upon the agent’s testimony that
Kris stated that there was no pharmacist present “when they were dispensing
medication.” (T. 408). However, there is no identification of “they” or “medication.”
Next, the state quotes testimony from Barquin as to when he observed either
defendant working: “There was days when I ran into them there and there was days
that I didn’t.” (State’s Answer Brief at 10). Again, this is the type of “proof” against
the defendants, used collectively, that merely places them at the business at no
particular date or time.
Barquin was also asked to describe what each defendant was observed doing.
Again, his answer was vague: “Whatever needed to be done. Pretty much the same
thing I would do.” (State’s Answer Brief at 10). Although Barquin's work included
filling bottles and taking them to couriers, Barquin did not link either defendant to any
drug, adulteration, or misbranding. Rather, Barquin's testimony on this matter shows
that he named specific medications in answer to the prosecutor's questions about what
he, for the most part, received orders for:
Q. What drugs did you receive orders -- you handled the orders at
A. That’s correct.
Q. What drugs did you receive orders for at Nuria’s?
A. The bulk of it was Hydrocodone.
Q. What else?
A. Alprazolam, which is Xanax, and Flurazepam those are the main ones
(T. 513) (emphasis supplied). This testimony is merely addressed to orders received
by Barquin. The inquiry by the prosecutor has nothing to do with either defendant,
much less adulteration or misbranding of any specific drugs by either defendant.
Similarly, the state cites testimony of Hernandez that he observed the defendants
filling prescriptions. (State’s Answer Brief at 11). But Hernandez never testified that
any specific drug was filled by either defendant or that any “drug” as charged was
adulterated or misbranded by either defendant.
As shown by the testimony referenced above, the direct examinations of the
prosecution's witnesses typically "danced around" the real issues and elicited answers
couched in generalities, again, in a case of guilt by association. But the cross-
examination by defense counsel of the state's witnesses focused directly upon the
charges, challenging the witnesses to supply dates of offenses, identifications of
"drugs," and evidence of common schemes and agreements, as shown by the following
Q [by defense counsel]. What did Kris load into that pill bottle on that
day that you don't remember, and what did Erik load into that pill bottle
on that day that you didn't remember?
A [by Mr. Urrutia]. Whatever order -- whatever portion of that -- those
orders were packed and given to him in a bag.
Q. But we don't have a date?
A. We don't have a date and I couldn't tell you if it was John Smith in
there from Minnesota and ...
Q. Okay. And --
A. I can't tell you if it was Phentermine, or Xanax, or if it was -- it was
probably various states and various drugs in one bag.
Q. Okay. And as you sit here today, you can't tell us -- if we open up all
those boxes, you can't say, Erik did this one, Kris did that one on that
particular day, because you don't know the medication. You don't know
the date. You don't know that the prescription was kosher or not. Do you
understand what I mean by kosher?
A. Yeah, I know what you mean. Nobody is going to be able to tell you
Q [by defense counsel]. Now I want to talk to you about agreements that
you had with Kris and Erik Rodriguez. Agreements. Did you ever agree
with them at any time, whether it's for Abel, for Cruces, for anything, that
you guys were going to do something illegal; that you were going to join
in a conspiracy to traffic in Hydrocodone?
A [by Mr. Barquin] Who, my cousins?
Q. Yeah, with them?
Q. Did they talk to you about it?
A. No. Never.
Q. Did you socialize with them?
A. During this time, yeah.
Q. And during this time that you were socializing did you ever say, hey,
we're doing great, this Hydrocodone, that kind of thing where it was
understood, you know, that there was a wink of an eye that we're doing
Q. You never had an agreement?
Q. Mr. Barquin, let me just ask you one final question. Do you have any
personal knowledge -- behind that prosecutor is a bunch of boxes that
came from the search warrant that was executed at Santa Clara in October
of 2004. Do you have any personal knowledge of any pill bottle
prescription in there that you can tell us with a certainty, just a certainty,
that either Kris or Erik Rodriguez touched, or otherwise filled a
A. No, sir.
(T. 469-70; 493).
Q [by defense counsel]. Now, do you have any personal knowledge -- sir,
do you have any personal knowledge if Erik and Kris Rodriguez filled
any of these prescriptions outside the presence of a licensed pharmacist?
A [by Mr. Hernandez]. No.
Q. You can't tell us? You understand my question, right? I mean, I see
you smirking, and I want you to understand the question. I'm holding a
pack of prescriptions here, and my question to you is this: Can you tell us
if you have any personal knowledge of any one of these prescriptions that
either one of these two young men filled outside the presence of a
A. Any of those prescriptions in your hand, I can't tell you that they did or
didn't. Did they fill prescriptions in front of me without a pharmacist on
Q. But you don't know which one is this?
Q. And you can't point them out?
A. There's a lot more prescriptions than that.
Q. I understand but even if they had a room full of them, could you point
Q. You just know that they filled some prescriptions. Now, of the
prescriptions that you claim that you saw them fill, which of them were
Hydrocodone? Which of them were Viagra? Which of them were diet
pills? Which of them were Xanax?
A. I can't answer that.
Q. You can't can you?
Q. Of the bags that they -- by the way, the day that you were stopped by
the police with your car in the alley, they [the defendants] were not
present there that day, were they?
A. No, they were not.
Q. All right. So it is pretty safe to say that the three bags that were taken
from the back of your truck, that were filled with prescriptions that must
have been filled that day, correct?
Q. That none of these, none of these in your truck were filled by either
one of them, pretty safe?
Q. Okay. So you can safely say, I believe to this jury, the three or four
bags that were in the trunk of my car that day the police yanked me over
or pulled me over, all of these prescriptions were filled there at that
facility, but because Kris and Erik were not there that day, they did not
fill any of these?
A. That day they did not fill any of these prescriptions.
Q. Okay. And were they there the day before?
A. I can't tell you positively yes or no.
Q. So maybe the stuff that was there from the day before they didn't fill
Due to the absence of evidence connecting each defendant to a "drug" as
statutorily defined and charged to the jury, none of the convictions can stand. Nor did
the prosecution prove any of the three possible means of establishing adulteration. See
Initial Brief of Appellants at 15-17. Accordingly, the convictions should be reversed
for lack of sufficient evidence.
Based upon the foregoing, the defendants respectfully request reversal and
remand with directions to discharge them.
LAW OFFICES OF PAUL MORRIS, P.A. LAW OFFICE OF EMMANUEL
9350 South Dixie Highway PEREZ & ASSOCIATES, P.A.
Suite 1450 901 Ponce de Leon Boulevard
Miami, FL 33156 Suite 101
Florida Bar No. 193769 Coral Gables, FL 33134
(305) 670-1441 (305) 442-7443
Counsel for Appellants
Counsel for Appellants
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of this brief was mailed to Timothy R.M.
Thomas, Office of the Attorney General, 444 Brickell Avenue, Suite 650,
Miami, FL 33131, this ________ day of October, 2010.
CERTIFICATE OF COMPLIANCE
I HEREBY CERTIFY that this brief is submitted in Times New Roman 14-point