F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                         April 30, 2007
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court


 U N ITED STA TES O F A M ER ICA,

               Plaintiff-Appellee,                       No. 05-1330
          v.                                             (D. Colorado)
 A LBER T C ELIO ,                               (D.C. No. 01-CR-165 EW N)

               Defendant-Appellant.



                            OR D ER AND JUDGM ENT *


Before M U RPH Y, A ND ER SO N, and O’BRIEN, Circuit Judges.




I. IN TR OD UC TIO N

      Defendant-Appellant Albert Celio, a D octor of Osteopathy licensed in

Colorado, was convicted by a jury on four counts of dispensing and distributing a

controlled substance in violation of the Controlled Substances Act, 21 U.S.C.



      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.

       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
§ 841(a)(1) and (b)(1)(C). Celio’s convictions arose from four prescriptions for

Percocet, a Schedule II narcotic, written for an undercover police officer posing

as a patient. On appeal, Celio challenges his convictions on four grounds: (1) the

evidence presented to the jury provided an insufficient basis for his conviction;

(2) the district court failed to instruct the jury that it had to find Celio

“knowingly” acted outside the scope of medical practice or w ithout a legitimate

medical purpose; (3) the district court abused its discretion in denying Celio’s

motions for a mistrial based on alleged discovery violations; and (4) prosecutorial

misconduct interfered with Celio’s right to a fair trial. Exercising jurisdiction

pursuant to 28 U.S.C. § 1291, this court rejects each of Celio’s arguments and

affirm s his convictions.



II. B AC KGR OU N D

      According to evidence introduced at trial, the Drug Enforcement Agency

(“DEA”) began investigating Steve Compton, a friend and patient of Celio, for

violating federal controlled substance law s. Compton had been officially

dismissed from Celio’s practice at the All Family Health Care Clinic after

Compton obtained one of Celio’s prescription pads and began writing himself

prescriptions for Lorcet, a Schedule III narcotic. Celio, however, continued to see

Compton after hours and maintained contact with him. The DEA’s investigation

of Compton led to an investigation of Celio, using Compton as a “cooperating

                                           -2-
source.” The Federal Bureau of Investigation (“FBI”) was also involved in the

DEA’s investigation.

      On M ay 11, 2000, Compton, working with the DEA, called Celio and said

that a friend, “Robert Logan,” needed a prescription for pain medication, but

could not come in to see Celio. Compton told Celio “Logan” would give him

$1000 if Celio would call in a prescription. Celio refused and said he needed to

examine “Logan” in person before writing any prescriptions.

      On M ay 18, undercover Denver police officer Roger Hogan, posing as

“Robert Logan,” visited Celio’s office. He told Celio he needed Percocet for

knee pain associated w ith an old football injury. Hogan told Celio he had last

received a prescription from a doctor in Texas two weeks prior and that he had

been taking one pill per day. Although Celio advised Hogan of other treatments

for knee pain and urged him to get an x-ray, Celio wrote Hogan a prescription for

thirty Percocet pills, mentioning several times that Percocet is a Schedule II

narcotic that can attract notice when prescribed in high quantities.

      A week later, on M ay 25, Hogan accompanied Compton to a lunch meeting

Compton had arranged with Celio at a local establishment called the Sports Café.

As pre-arranged with Hogan, Compton excused himself midway through the

meeting. During Compton’s absence, Hogan told Celio he needed a doctor he

could “depend on.” Hogan said Percocet worked well for him when he

“part[ied]” and asked for three more prescriptions, mentioning that he would

                                         -3-
share some of the pills with his girlfriend, Kimmy, and others in Dallas during an

upcoming trip. Celio warned Hogan that the prescriptions “ha[d] to be limited in

. . . volume” and couldn’t be “over blatant.” He also told Hogan he did not want

the Percocet he prescribed to be shared with Compton. Hogan mentioned to Celio

that he felt uncomfortable in the All Family Health Care Clinic itself, and asked

to meet Celio outside the clinic to get “a couple month’s worth” of renewal

prescriptions. Celio and Hogan arranged to meet in the clinic parking lot later

that same afternoon. Celio suggested Hogan page him with a “7” at the end of

Hogan’s phone number when he arrived. During this conversation, Hogan

repeatedly mentioned to Celio he had $2000 that Celio could use for stock

investments, which had been a topic of conversation between Compton and Celio

earlier in the meeting.

      Celio and Hogan met in the clinic parking lot about forty-five minutes after

leaving the Sports Café. Although Hogan had only complained to Celio about

knee pain, Celio told H ogan he w ould record the prescriptions on his clinic chart

as treatment for degenerative joints and migraines. Celio then said, “You get

headaches, I imagine. That’s legit for this.” Celio told Hogan not to get “carried

aw ay” because he could not “do more than . . . fifty in twelve days.” He

instructed Hogan, “[a] hundred a month is a good scenario,” and indicated he

could not go “beyond . . . a hundred a month.” W hen Hogan said he would use

the pills for partying and planned to share some with his girlfriend, Celio said

                                         -4-
nothing to discourage Hogan from sharing the pills, but did say that all the

prescriptions had to be in Hogan’s name.

      Celio ultimately wrote Hogan four prescriptions for Percocet. One

prescription was dated M ay 25, and the others were postdated for June 1, June 15,

and June 30. The first, third, and fourth prescriptions were for fifty pills each,

while the second prescription was for sixty pills to accommodate H ogan’s desire

to share the pills with his girlfriend. W hen Celio documented these prescriptions

on Hogan’s chart, however, the prescription dates, quantities, and strengths did

not match those on the prescriptions themselves. Toward the end of the M ay 25

parking lot meeting, Hogan gave Celio $2000 for the prescriptions.

      Hogan had no further contact with Celio for almost two months. During

two meetings in mid-July 2000, Celio indicated he was worried that a federal

investigation of Steve Compton could lead back to him and, according to Hogan,

told Hogan he could not write any more Percocet prescriptions until things

“quieted down.” The DEA and FBI continued to investigate C elio and the All

Fam ily H ealth C are C linic by obtaining information from pharmacies. On

December 11, 2000, federal agents executed a search warrant at the clinic.

      Celio was indicted on M ay 5, 2001, for, among other things, dispensing and

distributing a controlled substance in violation of 21 U.S.C. § 841(a)(1) and

(b)(1)(C). Of the eight counts on which Celio was initially indicted, four counts

were dismissed. Each of the remaining four counts corresponded with the four

                                          -5-
Percocet prescriptions Celio wrote for H ogan in the clinic parking lot on M ay 25.

At trial, the government called five witnesses: Paul Jaster, a DEA agent involved

in the investigation of Celio; Roger Hogan, the undercover Denver police officer

who posed as the patient “Robert Logan”; Donna Lapetina, the owner and

business manager of the A ll Family Health Care Clinic; Karen Lutz, the clinic’s

receptionist and office manager; and Thomas Gierwatoski, a pharmacist familiar

with Celio. Celio did not present any evidence or witnesses in his own defense,

arguing instead that the evidence w as insufficient to support the charges against

him and theorizing that he was engaged in an honest but misguided “reverse

sting” to see if Hogan was providing pills to Compton. The jury found Celio

guilty on all four counts. He was sentenced to twenty-seven months’

imprisonment, followed by three years’ supervised release.



III. D ISC USSIO N

A.    Sufficiency of the Evidence

      On appeal, Celio revives the sufficiency of the evidence argument he made

when he moved for a judgment of acquittal at the close of the government’s

evidence. He contends there was insufficient evidence to prove he acted outside

the usual course of medical practice or without a legitimate medical purpose when

he wrote four Percocet prescriptions for “Robert Logan” in the All Family Health

Care Clinic parking lot on M ay 25.

                                         -6-
      Rather than explaining how the record evidence is insufficient to support

the jury’s verdict, however, Celio’s argument on appeal focuses on the standard

this court should use to evaluate the sufficiency of the evidence. Celio urges this

court to adopt a rule that, as a matter of law, a defendant’s conviction must be

reversed where “the evidence viewed in the light most favorable to the

prosecution gives equal or nearly equal circumstantial support to a theory of guilt

or innocence.” United States v. Andujar, 

, 20 (1st Cir. 1995). As the

government indicates in its brief, this court has rejected such a rule. See United

States v. Hooks, 

, 1530 (10th Cir. 1986) (rejecting language in

earlier cases “suggest[ing] that a criminal conviction cannot be sustained if a

reasonable hypothesis could be designed which is consistent with innocence”). 1

      In review ing the sufficiency of the evidence to support a conviction, this

court reviews the record de novo to determine whether, viewing both the direct

and circumstantial evidence in the light most favorable to the government, a

reasonable jury could have found the defendant guilty beyond a reasonable doubt.

United States v. Nelson, 

, 1229 (10th Cir. 2004). Our examination

of the evidence is not piecemeal but, rather, requires “collective inferences to be

drawn from the evidence as a whole.” 

This court does

      1
       Although a recent Tenth Circuit case employed the language rejected in
Hooks, see United States v. Weidner, 

, 1032 (10th Cir. 2006), the
Hooks formulation— adopted repeatedly in our case law over the past two
decades— is the correct standard. Accord United States v. Nelson, 

,
1229 (10th Cir. 2004).

                                         -7-
not, however, “weigh conflicting evidence or consider the credibility of

witnesses.” United States v. Patterson, 

, 778 (10th Cir. 2006).

      A thorough review of the record reveals a sufficient evidentiary basis for

the jury’s verdict. The provision of the Controlled Substances Act under which

Celio was convicted makes it “unlaw ful for any person knowingly or intentionally

to manufacture, distribute, or dispense . . . a controlled substance” except as

authorized by the statute. 21 U.S.C. § 841(a)(1). Dispensing a controlled

substance includes “the prescribing . . . of a controlled substance.” 

The prescribing of a controlled substance by a physician is “authorized” only

when the physician “acts with a legitimate medical purpose and in the usual

course of professional practice.” 

(citing 21 C.F.R.

§ 1306.04(a)); see also United States v. M oore, 

, 140 (1975). “[T]he

very facts and circumstances surrounding the issuance of a drug prescription can

support a finding that the prescription was not issued for a legitimate medical

purpose.” United States v. Jamieson, 

, 951 (10th Cir. 1986). A

good-faith exception protects physicians w ho dispense prescriptions in good faith

in the course of reasonable legitimate medical practice. See, e.g., United States v.

Hurwitz, 

–78 (4th Cir. 2006) (collecting cases setting forth objective

good-faith standard).

      The government’s evidence, particularly the audiotape of the M ay 25, 2000,

parking lot meeting between Celio and Hogan, could have led a reasonable jury to

                                          -8-
find that Celio was not prescribing Percocet for a legitimate medical purpose or in

the ordinary course of professional practice. Both in the parking lot and earlier at

the Sports Café, Hogan provided multiple clues that he intended to use the drugs

for “partying” and that he intended to share the pills w ith his girlfriend. Celio

never inquired as to Hogan’s knee pain or examined Hogan’s knee at any time

after the M ay 18, 2000, office visit, including when writing the four Percocet

prescriptions on M ay 25. Celio indicated the prescriptions could be “legit” for

headaches, which he said he assumed Hogan must get, even though Hogan’s sole

complaint to Celio was about an old knee injury. Additionally, the prescriptions

Celio wrote on M ay 25 were for four pills per day, whereas the prescription

written on M ay 18 was for one pill per day. Finally, during his two encounters

with Hogan on M ay 25, Celio made multiple references to his concern about

triggering DEA scrutiny or, as Celio referred to it, “look-sees.” He indicated he

could not write “high volume” prescriptions that would raise “red flag[s]” and

could not prescribe more than a hundred pills per month for this reason. In

addition to the interactions between Celio and Hogan, the jury also saw exhibits

demonstrating mismatches between the prescriptions Celio wrote for Hogan and

Celio’s notations in Hogan’s chart, and heard testimony from Agent Jaster

regarding government regulations prohibiting the postdating of narcotic

prescriptions. Based on the evidence referenced above as well as other evidence




                                          -9-
adduced at trial, a reasonable jury could easily have found that Celio’s actions fell

outside the bounds of objectively reasonable medical practice.

      Rather than disputing the foregoing facts, Celio attempts to justify his

actions by arguing to this court, as he did to the jury, that his actions were part of

a “reverse sting” to see whether Hogan was providing drugs to Compton. Celio

explained to the jury that the “reverse sting” idea grew from his frustration at the

DEA’s apparent lack of progress in investigating Compton’s theft and use of

Celio’s prescription pad to write unauthorized narcotic prescriptions. By finding

Celio guilty, however, the jury implicitly rejected the applicability of the good-

faith defense, as well as Celio’s “reverse sting” theory. For the foregoing

reasons, therefore, this court determines the evidence was sufficient to support the

jury’s verdict and concludes the district court did not err in denying Celio’s

motion for a judgment of acquittal.

B.    Jury Instructions

      W ith regard to the elements to be proven by the government, the court

instructed the jury:

             First, [the government] must prove that the defendant, Albert
      Celio, knowingly or intentionally distributed or dispensed the
      controlled substance named in the particular count.

            Second, [the government] must prove that the defendant,
      Albert Celio, in distributing or dispensing the controlled substance,
      was acting either outside the usual course of medical practice or
      without a legitimate medical purpose.



                                          -10-
The court also instructed the jury that Celio could not be convicted if he acted in

good faith in the course of professional practice. 2 At trial, Celio did not propose

any jury instructions or object to the challenged instruction. On appeal, however,

Celio contends the trial court erred by failing to instruct the jury that, to convict

Celio, it had to find he “knowingly” acted outside the usual course of medical

practice or without a legitimate purpose. He claims the instruction on the

elements lessened the government’s burden of proof and conflicted with the good-

faith instruction. He also suggests the good-faith instruction did not cure this

defect because the instruction failed to inform the jury that it could only convict

Celio if it found he acted in “bad faith.”

      Ordinarily, “we review jury instructions as a whole to determine whether

they adequately state the applicable law, and review de novo whether a particular

instruction is proper.” United States v. M cConnel, 

, 1158 (10th Cir.

2006). W hen a party fails to raise an objection in the court below, as Celio failed

to do in this case, however, this court reviews the instructions for plain error.

United States v. Teague, 

, 1314 (10th Cir. 2006). Under the plain

error standard, Celio’s conviction can be reversed only if the jury instructions

      2
       As part of the good-faith instruction to Celio’s jury, the court instructed,
“A physician may not be convicted when he dispenses controlled substances in
good faith to patients in the regular course of professional practice.” G ood faith
was defined for the jury as “the honest exercise of good professional judgment as
to a patient’s medical needs. Good faith connotes an observance of conduct in
accordance with what the physician should reasonably believe to be proper
medical practice.”

                                         -11-
contained an “(1) error, (2) that is plain, which (3) affects substantial rights, and

which (4) seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” 

      Celio’s claim must fail because the instructions given were not plainly

erroneous. See United States v. Olano, 

, 733–34 (1993) (defining

plain error as the violation of a legal rule that was clear or obvious at the time of

trial). Celio does not cite any legal authority in support of his proffered inclusion

of “knowingly,” nor can this court find any authority to support Celio’s position.

There is nothing in the statutory language at 21 U.S.C. § 841(a)(1), the regulatory

language at 21 C.F.R. § 1306.04, or any case law that requires the physician to

“know ingly” act without a legitimate medical purpose or outside the usual course

of professional practice. The statutory requirement of a “knowing” mental state

applies only to the dispensation or distribution of the controlled substance. See

21 U.S.C. § 841(a)(1). Reflecting the statutory scheme that distribution and

dispensation be “knowing,” the accompanying regulation only uses the w ord

“knowingly” to describe the requisite mental state of a pharmacist who fills an

invalid prescription. See 21 C.F.R. § 1306.04(a).

      Additionally, there is no opinion of this court or any other appellate court

that indicates a physician must “knowingly” act outside the usual course of

professional practice or without a legitimate medical purpose when writing a

prescription in order to violate § 841(a)(1). To the contrary, other cases’

                                          -12-
discussions of the elements of the crime track the statutory and regulatory

language included in Celio’s jury instructions. See, e.g., 

–32 (“A practitioner has unlawfully distributed a controlled substance if she

prescribes the substance either outside the usual course of medical practice or

without a legitimate medical purpose”); United States v. Varma, 

,

462 (10th Cir. 1982) (reciting the professional practice element without reference

to a required mental state); see also United States v. M cIver, 

, 556 &

n.9 (4th Cir. 2006) (failing to include “knowingly” in its recitation of the “outside

the usual course of professional practice” instruction).

      Finally, the good-faith instruction clearly informed the jury that it could not

convict Celio if it found he “merely made an honest effort to treat his patients in

compliance with an acceptable standard of medical practice.” Any uncertainty the

jury may have had as to whether it could convict Celio for an honest error in

judgment would have been clarified by this instruction. For the foregoing

reasons, this court concludes there was no error in the jury instructions.

C.    M istrial M otions Based on Alleged Discovery V iolations

      Citing Federal Rule of Criminal Procedure 16, Celio claims the district

court erroneously denied two of his motions for a mistrial premised on the

prosecution’s alleged failure to provide him with incriminating evidence prior to

trial. The first challenged ruling occurred during the testimony of Agent Jaster

and concerned statements Celio made during the December 11 search of the All

                                         -13-
Family Health Care Clinic. Jaster testified that during the search he played Celio

a tape of the M ay 25 parking lot meeting with Hogan and, after hearing the tape,

Celio denied the voice on the tape was his. Despite his purported surprise at

Jaster’s testimony, however, Celio waited until after he had cross-examined Jaster

to object to Jaster’s testimony. Celio then argued the prosecution had not

previously disclosed the existence of this inculpatory statement. He contended

his voir dire questions, opening argument, and trial strategy would have been

different had the statement been disclosed prior to trial. Although the district

court acknowledged the non-disclosure of the statement may have constituted a

discovery violation, it concluded the error was not intentional or malicious. The

district court determined Celio was not prejudiced by the late disclosure of the

statement and denied Celio’s motion for a mistrial.

      The second mistrial motion challenged on appeal occurred in response to

Hogan’s testimony. Hogan testified that, in July 2000, Celio said he could not

write H ogan additional prescriptions at that time but might be able to deal with

Hogan again in the future. Because of the poor quality of the surveillance tape,

this conversation was apparently difficult to hear. Celio objected that the

inculpatory material on the tape had not been disclosed prior to trial. The

prosecutor argued the tape was audible if listened to repeatedly and that a

transcript had long been available. The court denied Celio’s motion, explaining

the jury would have to decide how to interpret the tape.

                                        -14-
      This court reviews a district court’s denial of a motion for a mistrial for an

abuse of discretion. United States v. Stiger, 

, 1194 (10th Cir.

2005). W hen faced with a motion for a mistrial, a district court must determine

whether an error occurred and, if so, “w hether that error affected the defendant’s

right to a fair and impartial trial.” 

A district court’s

ruling will only be disturbed on appeal if its determination “was based on a

clearly erroneous finding of fact or an erroneous conclusion of law or manifests a

clear error of judgment.” 

A mistrial is a sanction of last

resort and, particularly in the context of discovery violations, less drastic

remedies are preferable. United States v. M artinez, 

, 1130 n.2

(10th Cir. 2006). A defendant should object to an alleged violation “at the first

reasonable opportunity” in order to allow the court to take curative actions less

drastic than a mistrial. 

court did not abuse its discretion when denying either of

Celio’s motions. As to the first motion, which Celio did not make at “the first

reasonable opportunity,” a fact that alone could weigh against granting a motion

for a mistrial, see 

the district court correctly determined that, even if

an inadvertent discovery violation occurred, Celio was not prejudiced. Celio

cross-examined Jaster about why he had not included the statement in his

summary report, taped the conversation, or generated a more extensive written

report about the execution of the All Family Health Care Clinic search warrant

                                          -15-
and his interaction with Celio. As to Celio’s argument that his trial strategy,

including whether to testify in his own defense, would have been different had he

known about Jaster’s disclosure, the record is clear that Celio had not yet

finalized a trial strategy at the time the disclosure was made. He did not decide

until the end of the government’s evidence whether to testify in his own defense

or call Compton as a witness. Celio further argues he might have called other

witnesses to challenge Jaster’s testimony and the corroborating testimony of

Karen Lutz. Celio, however, never moved for a continuance or otherwise

indicated the need to interview witnesses or conduct further investigation. 3

Celio’s other arguments, both those made to the district court regarding voir dire

and those made for the first time on appeal, including the suggestion that Celio

might have accepted a plea deal, are equally unpersuasive.

      Regarding Celio’s second motion, the district court’s ruling was correct.

Celio does not dispute the existence of the audiotape in question. His argument

before the trial court was simply that the tape quality impeded his ability to hear

the statement testified to by Hogan. The district court appropriately indicated

that parsing the tapes fell to the jury and instructed the jury to disregard

transcripts of the tapes where the tape and the transcript appeared to conflict or



      3
        The trial court asked Celio whether he wanted the opportunity to interview
Karen Lutz prior to her testimony in order to ameliorate any potential discovery
violations. The defendant’s investigator attempted such an interview prior to
Lutz’s testimony.

                                         -16-
where words that appeared in the transcript were not audible on the tape. Based

on the record before us, we conclude the district court properly denied C elio’s

motions for a mistrial.

D.    Prosecutorial M isconduct Related to Character Evidence

      Celio contends on appeal that prosecutorial misconduct relating to evidence

of Celio’s prior bad acts occurred at several points during the trial, and that the

cumulative effect of this misconduct prejudiced his ability to receive a fair trial.

W hen the defendant objects to the alleged misconduct at trial and moves for a

mistrial, this court reviews the district court’s denial of the defendant’s motion

for an abuse of discretion. United States v. M eienberg, 

, 1180

(10th Cir. 2001). W hen the defendant has merely objected to the statement

without moving for a mistrial, however, there is no exercise of the district court’s

discretion for an appellate court to review. 

cases, we evaluate the

prosecutor’s actions for harmlessness, and reversal is appropriate only when “the

misconduct [has] . . . been flagrant enough to influence the jury to convict on

grounds other than the evidence presented.” 

In

evaluating “whether the misconduct had such an impact, we consider the trial as a

whole, including the curative acts of the district court, the extent of the

misconduct, and the role of the misconduct within the case.” 

see also United States v. M aynard, 

, 604–07 (10th Cir.

2000). Cumulative error, which Celio asserts is present in this case, may lead to

                                         -17-
reversal only when the flagrant misconduct standard outlined above has been met.

See United States v. Haar, 

, 1377 (10th Cir. 1991) (“The

harmlessness of cumulative error is determined by conducting the same inquiry as

for individual error.” (quotation omitted)).

      Each of the eight instances of alleged prosecutorial misconduct raised in

Celio’s opening brief are summarized below. 4 In this case, Celio objected to the

prosecutor’s actions in each of the instances properly raised on appeal, but moved

for a mistrial in only one instance. Although this court shares the district court’s

frustration with respect to some of the prosecutor’s actions, the district court gave

appropriate curative instructions both during the trial and before the jury began its

deliberations. 5 The nature of the evidence against Celio, along with the district


      4
        In addition to the eight instances of alleged prosecutorial misconduct
raised in his opening brief, Celio raises five additional allegations in his reply
brief. Because Celio’s belated allegations violate Federal Rule of Appellate
Procedure 28(a)(9)(A ) and the government did not have the opportunity to
respond to the additional allegations, we deem Celio’s arguments as to these
additional five instances of purported misconduct as waived and do not consider
them.
      5
          As part of the pre-deliberation jury instructions, the court told the jury:

            The defendant is only on trial for the particular charges alleged
      against him in the Indictment. You have heard evidence that the
      defendant may have committed other acts w hich are not charged in
      the Indictment. I instruct you, however, that your job is to determine
      beyond a reasonable doubt whether the Government has proven the
      four charges alleged in the Indictment. If it has not proven a precise
      charge in the Indictment, then you must acquit the defendant on that
      charge, even though you think the defendant may have done some
                                                                      (continued...)

                                           -18-
court’s curative actions, lead this court to conclude that the jury convicted Celio

based solely on the evidence properly before it and that any individual or

cumulative error w as harmless.

1. Jaster Testimony

      Celio’s first three objections, which were not accompanied by a mistrial

motion, relate to testimony elicited from Agent Jaster. The first was a hearsay

objection to Jaster’s testimony that the DEA began investigating Celio, in

addition to another employee at the All Family Health Care Clinic, after receiving

“other complaints” against Celio “regarding another former patient.” The district

court appropriately responded to the prosecutor’s error by sustaining Celio’s

objection. Particularly in light of Celio’s own assertions during his opening

argument that he had called the DEA about the very same former patient, Steve

Compton, there is nothing in the record to suggest this testimony was anything

other than harmless.

      The second challenged piece of testimony involves Jaster’s explanation that

the FBI became involved in the DEA’s investigation because it had “information

      5
       (...continued)
      other act not charged in the Indictment.
             You are not here to return a verdict concerning the guilt or
      innocence of any person who is not specifically charged in the
      Indictment. You are here to determine whether the Government has
      proven its charges against this defendant beyond a reasonable doubt.
             The possible guilt of others is simply irrelevant to a criminal
      charge in a case such as this. Do not let the possible guilt of others
      influence your decision about this defendant in any way.

                                         -19-
on a previous investigation involving Dr. Celio and some other people.” Celio

objected to the testimony and the court sustained the objection. To ameliorate

any harm from the statement, the court asked Celio whether he wanted the

statement stricken, and then instructed the jury, “[I]t’s improper to get into prior

investigations. And the jury should ignore the testimony concerning any prior

investigations the FBI had of Dr. Celio. It’s totally irrelevant, totally improper.

It is stricken.” The limited nature of the misconduct, combined with the district

court’s clear curative instruction, rendered this testimony harmless.

      The third instance of testimony Celio challenges is Jaster’s testimony

regarding a conversation he had with Celio in M arch 2000 when the DEA was

investigating Steve Compton. Jaster testified he called the clinic “to talk to one

of [Celio’s] employees regarding another patient.” A ccording to Jaster, a short

time later, he received a return call from Celio, who began talking about Steve

Compton. Jaster testified Celio told him “he had provided Steve Compton’s wife

with prescriptions for controlled substances through Steve Compton” and that the

DEA and FBI “made the conclusion that he was providing the prescriptions to

Steve Compton for his wife, Stacy Compton.” Celio objected to this last

statement, arguing to the court “[A]t some point this is character assassination.

And we’re not trying the case on the indictment. At some point, this has got to

stop.” The court sustained the objection, indicating it agreed with Celio’s

characterization and adding “Let’s go and see what happens. This is getting too

                                         -20-
persistent.” Because the court had already instructed the jury moments earlier to

disregard any information related to the FBI’s prior investigations of Celio,

another curative instruction was not necessary. Furthermore, Jaster’s statement

about law enforcement’s “conclusion” merely restated Celio’s own statement to

Jaster, which may have been admissible as the admission of a party-opponent

under Federal Rule of Evidence 801(d)(2)(A ). W e conclude, therefore, while

Jaster’s testimony may have been improper as a violation of Rule 404(b), it was

not flagrant enough to have improperly affected the jury’s verdict under the

harmless error standard.

      The fourth challenge involves a reference Jaster made to a separate search

warrant executed at All Family Health Care Clinic on the same day as the Celio

search warrant. The subject of the second search warrant was Timothy M ., whom

the DEA and FBI were investigating for illegal acquisition and possession of

steroids. Jaster also responded affirmatively to the prosecutor’s inquiry into

whether Timothy M . was “part of this case at one point.” Celio moved for a

mistrial in response to Jaster’s reference to the Timothy M . investigation and

Timothy M .’s involvement in Celio’s case. Celio argued the reference impugned

his character by suggesting he was engaged in or affiliated with other potentially

illegal activity. The court denied Celio’s motion for a mistrial, but sustained the

objection. The court then informed the jury,




                                         -21-
            M embers of the jury, you have just heard the witness testify
      about someone named [Timothy M .], and you’ve also heard some
      testimony about M r. [M .]’s activities.

             I want to tell you, this is a long and complex case. It was filed in
      2001, so it’s been pending a long time. And large parts of this
      investigation have nothing to do with other parts of the investigation. In
      particular, you are instructed that you are not to infer that the investigation
      of M r. [M .] that you just heard about had anything to do with the pending
      charges against this defendant, Albert Celio.

Because Celio moved for a mistrial, we review the district court’s denial of

Celio’s motion for an abuse of discretion. M 

. The

district court’s curative instruction appropriately responded to the improper

testimony. The denial of the motion for a mistrial was not an abuse of the district

court’s discretion. Celio’s challenge to the testimony regarding Timothy M .,

therefore, must fail.

2. Lapetina Testimony

      Celio’s next challenge involves the testimony of Donna Lapetina, the All

Family Health Care Clinic’s owner and the office administrator. The prosecutor

asked Lapetina whether she had confronted Celio about his prescribing practices

for narcotics between late 1999 and early 2000. W hen Lapetina indicated she

had, the prosecutor asked how many times she had confronted Celio during that

period. Celio made a relevance objection to the question, and, after a conference

at the bench in which Celio argued the prosecution was trying to get in Rule

404(b) evidence of other bad acts, the court sustained the objection. Although the



                                         -22-
prosecutor’s question may have been prejudicial in a very general way, we have

no grounds for concluding that the jury’s verdict would have been influenced by

the mere suggestion that Lapetina may have confronted Celio on more than one

occasion about his narcotic prescriptions.

3. Gierwatoski Testimony

      Celio’s sixth challenge arises from the testimony of Thomas Gierw atoski, a

pharmacist familiar with Celio. The government inquired as to whether, as part

of his duties, Gierwatoski kept a file on the narcotic prescriptions Celio wrote

between 1997 and 2000. W hen Gierwatoski indicated he had kept such a file, the

government asked why. Celio objected. After the prosecutor explained the line

of questioning was intended to show it was unusual for the pharmacy to have kept

such a file, the court sustained Celio’s objection. Celio asked for the prosecutor’s

explanation to be stricken from the record, and the court responded by instructing

the jury that “the way a lawyer words a question is not evidence in the case.” The

government rested its case without attempting to elicit more information from

Gierwatoski, and Gierwatoski never answ ered the question as to why he kept a

file on Celio. Because the jury never heard a prejudicial response, the exchange

was harmless and could not have influenced the basis for the jury’s verdict.




                                         -23-
4. Prosecutor’s Statem ents

      Celio’s last two challenges relate to statements made by the prosecutor

during the government’s closing and rebuttal arguments. First, during the

government’s closing statement, the prosecutor played an audio clip of the M ay

25 Sports Café conversation in which Celio warned Hogan that he needed to keep

his Percocet consumption to a reasonable level, advising Hogan that Doug S.,

another person referred to Celio by Compton, is “very reasonable with the meds.”

Celio went on to tell Hogan, “If it gets out of control, and it has in the past w ith

some people . . . I let [th]em know .” After playing this clip, the prosecutor

comm ented, “This isn’t the first time that Dr. Celio has done this kind of thing.”

Celio objected to the prosecutor’s comment as “character assassination,” arguing

he was “trying to suggest that [Celio] had done other things that we haven’t had

evidence about . . . . It’s the classic 404(b) suggestion.” The court sustained the

objection, reminding the government that the court had precluded the introduction

of any evidence regarding Celio’s relationship with Doug S. The court told the

prosecutor to “move on.” In light of the contents of the tape, which had been

admitted into evidence and include Celio discussing his experiences with Doug S.

and others, the prosecutor’s statement, while inappropriate, was harmless. Based

on Celio’s audio-recorded statements, the jury could reasonably have inferred on

its own that Celio prescribed pills for others outside the course of legitimate




                                          -24-
medical practice. The prosecutor’s statement, therefore, could not have

improperly influenced the jury’s verdict and was harmless.

      Second, during the government’s rebuttal argument, the prosecutor asked

the jury to consider why Compton had not testified. Agreeing with Celio that

Compton was a “scoundrel,” the prosecutor went on to say Compton is “a

criminal,” not a “government agent,” who was “used to get into his source.”

Celio objected to the use of the w ord “source,” arguing it implied Celio w as a

drug dealer from whom Compton was getting drugs illegally. He argued that

nothing in the evidence showed Celio himself had improperly provided Compton

with drugs. The court overruled the objection, maintaining the evidence

supported the inference that Compton received prescriptions for drugs from Celio.

The government continued w ith its rebuttal, explaining the evidence had shown

that, although Compton forged prescriptions, there was also testimonial evidence

that Celio continued to see Compton at the clinic after hours. Although the

record does not support the proposition that Compton received pills from Celio, it

certainly supports the inference that Compton got prescriptions from Celio.

Because “dispensing” includes providing prescriptions, see 21 U.S.C. § 802(10),

there was no error in the prosecutor’s use of the word “source” or the district

court’s response to Celio’s objection.

      In summary, viewed in the context of the trial as a whole, including the

district court’s curative actions, jury instructions, and the extent and role of

                                         -25-
misconduct within the case, the instances challenged by Celio do not rise, either

individually or cumulatively, to the level of flagrant prosecutorial misconduct

required for a new trial. Although the government’s action were, at times,

erroneous, the “question for resolution is not the culpability of the government,

but the fairness of the trial.” United States v. Villa-Chaparro, 

, 803

(10th Cir. 1997). Based on the record before this court, we conclude Celio

received a fair trial and is not entitled to a new one.



IV . C ON CLU SIO N

      For the foregoing reasons, Celio’s conviction is AFFIRM ED.

                                         ENTERED FOR THE COURT



                                         M ichael R. M urphy
                                         Circuit Judge




                                          -26-