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					           IN THE DISTRICT COURT OF APPEAL OF FLORIDA
                         THIRD DISTRICT

                                  CASE NO. 3D08-3249


                  ERIK RODRIGUEZ and KRIS RODRIGUEZ,

                                         Appellants,

                                               v.

                              THE STATE OF FLORIDA,

                                           Appellee.

  ---------------------------------------------------------------------------------------------

     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
305-670-1441                                        305-442-7443

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-




                                                        -i-
                                        TABLE OF CITATIONS

                                                       Cases



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-



                                              Other Authorities


§ 499.003(19)(a-c), (30), (48); § 499.006(1-3);
§ 499.007(1), Florida Statutes .................................................................................. -1-

§ 777.011, Florida Statutes....................................................................................... -6-




                                                        -ii-
                               REPLY ARGUMENT

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.


       1
        See § 499.003(19)(a-c), (30), (48); § 499.006(1-3); § 499.007(1), Florida
Statutes.

                                             −1−
(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.

249);

        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
                                             −2−
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.

(T. 540-41);

      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.

541-42); and

      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).

                                         −3−
      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


                                          −4−
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


                                         −5−
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


                                         −6−
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

prosecution:

      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."

                                          −7−
      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

follows:

      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

                                         −8−
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
      Nuria’s?
      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?

                                          −9−
      A. Alprazolam, which is Xanax, and Flurazepam those are the main ones
      I remember.

(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

inquiries:

      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

                                        −10−
      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
      that.

(T. 245-47).

                                      ***
      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?
      A. Never,
      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
      something illegal?
      A. No.
      Q. You never had an agreement?
      A. Never.
                                      ***
      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

                                         −11−
      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
      prescription for?
      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
      licensed pharmacist?
      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
      staff, yes.
      Q. But you don't know which one is this?
      A. No.
      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
      them out?
      A. No.
      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?
      A. No.
      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

                                          −12−
      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?
      A. Yes.
      Q. That none of these, none of these in your truck were filled by either
      one of them, pretty safe?
      A. Yes.
      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
      either?
      A. Maybe.

(T. 540-42).

      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.




                                         −13−
                                CONCLUSION

      Based upon the foregoing, the defendants respectfully request reversal and

remand with directions to discharge them.



                               Respectfully submitted,



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



________________________________
PAUL MORRIS
Counsel for Appellants




                                      −14−
                         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.




                          _______________________________
                          PAUL MORRIS


                       CERTIFICATE OF COMPLIANCE

        I HEREBY CERTIFY that this brief is submitted in Times New Roman 14-point

font.


                          _________________________________
                          PAUL MORRIS




                                      −15−

				
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