omitted).

      We have consistently held that, owing to the crime’s predominantly mental

composition, a defendant’s conscious participation in the scheme may be proven

by circumstantial evidence. See 
id. (citing United States 
v. Pineiro, 
389 F.3d 1359
,

1369 (11th Cir. 2004)). And while not controlling, “presence and association are

material and probative factors that a jury may consider in reaching its verdict.”

United States v. Lluesma, 
45 F.3d 408
, 410 (11th Cir. 1995).

      The essential nature of this conspiracy was for Fermin and Decubas “to

unlawfully enrich themselves by distributing prescription drugs wholesale from the

State of Florida to places outside the State of Florida, without being licensed by the

State of Florida.” Thus, the central question of this appeal is whether the

prosecution’s circumstantial evidence was so deficient that a jury could not have

inferred that Fermin and Decubas knew that Castillo employed them to distribute

prescription drugs from Florida without a license.

      We begin with the circumstantial evidence that was mutual to Fermin and

Decubas: (1) both Fermin and Decubas were aware the Florida drug agents had

raided Jemco; (2) both continued to work for Castillo at Kirby/Meridian shortly

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after Jemco’s closing; (3) both told Kirby/Meridian employees not to disclose

Castillo’s involvement in Kirby/Meridian; and finally, (4) both paid Romero to

incorporate Swift Freight in Tennessee, which allowed Castillo to ship prescription

drugs to Texas from Florida with a Tennessee return address. Evidence at trial also

showed that Fermin had fake invoices on his Kirby/Meridian computer, that

Decubas told FDA agents that Kirby/Meridian only sold medical and surgical

supplies, and that Decubas acted bewildered by the pharmaceutical sales and

invoices in her office.

      In order to have knowledge of the conspiracy’s essential nature, Fermin and

Decubas had to know that Castillo was shipping prescription drugs out of Florida

without a license. Based upon the foregoing evidence, we conclude that a jury

could infer such knowledge beyond a reasonable doubt. The jury could reasonably

infer that Fermin and Decubas knew that Castillo’s license had been revoked

following the Jemco raid. This inference is bolstered by the fact that Fermin and

Decubas actively concealed Castillo’s involvement at Kirby/Meridian. Finally, the

jury could infer from Swift Freight’s incorporation, the fake invoices on Fermin’s

computer, and Decubas’s unconvincing explanation of the pharmaceutical

documents in her office that Fermin and Decubas were aware that Castillo was

shipping prescription drugs from Florida. Put succinctly, the jury could reasonably

conclude that Fermin and Decubas knowingly participated in acts—such as paying

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off Romero to incorporate Swift Freight—that would further the conspiracy’s

purpose, i.e., to sell without a license prescription drugs. We find readily

distinguishable the cases cited by Fermin and Decubas, beginning with Ingram v.

United States, 
360 U.S. 672
, 
79 S. Ct. 1314 
(1959).

      In Ingram, the Supreme Court found the prosecution’s evidence for

conspiracy to evade taxes insufficient with regard to two lottery employees who

allegedly helped to keep the lottery secret from authorities. 
Id. at 680, 79 
S. Ct. at

1320. The employees themselves had not conspired to evade taxes; instead, it was

the owners of the lottery who had done so. The employees’ actions were almost

certainly explained by the fact that the lottery was illegal under state law, and

evidence that they “might have wanted the taxes to be evaded if they had known of

them, and that they engaged in conduct which could have been in furtherance of a

plan to evade the taxes if they had known of them, [was] not evidence that they did

know of them.” 
Id. Ingram stands for 
the proposition that “charges of conspiracy

are not to be made out by piling inference upon inference.” 

omitted). In this case, unlike Ingram, the jury did not have to make

enormous inferential steps, but instead inferential tiptoes. Fermin and Decubas

were associated with Castillo for years, during Jemco’s raid, after Jemco shuttered,

and throughout their stints at Kirby/Meridian, all the while telling Kirby/Meridian

employees to keep Castillo’s involvement in the dark.

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      Fermin’s citation to United States v. Kelly, 
749 F.2d 1541 
(11th Cir. 1985),

is similarly unconvincing. In Kelly, we found that insufficient evidence supported

the defendant’s conviction for drug smuggling. 
Id. at 1548. In 
that case, we held

that the defendant’s inspection of a drug-smuggling boat’s seaworthiness, along

with his presence at a meeting of co-conspirators, was insufficient to demonstrate

knowledge. 
Id. It was unreasonable 
for the jury to infer that the defendant knew

the boat would be used for drug smuggling merely by his inspection of the boat

and his acquaintance with the co-conspirators. 
Id. at 1548–49. Were 
it the case

now that the prosecution had presented only “facially innocent act[s]” by Fermin

and Decubas, we would be inclined to agree with Fermin. United States v. Perez-

Tosta, 
36 F.3d 1552
, 1558 (11th Cir. 1994). However, Fermin had fake invoices

on his computer, and Decubas misrepresented the truth to FDA agents, neither of

which in our view is a “facially innocent act” like a boat inspection. 
Id.

      Finally, Decubas points 
to our decision in United States v. Lluesma, 
45 F.3d

408 
(11th Cir. 1995). In Lluesma, Cruz and Lluesma challenged the sufficiency of

the evidence supporting their convictions for conspiracy to export stolen

construction vehicles. 
Id. at 409. We 
rejected Lluesma’s sufficiency challenge

because the government’s circumstantial evidence—such as a co-conspirator’s

testimony about Lluesma’s state of mind—sufficiently supported the jury’s

determination that Lluesma knew that the vehicles were destined for export. 
Id. at

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11-14979     Date Filed: 02/08/2013   Page: 12 of 15

410. Lluesma had also been observed riding around the area in a stolen car with a

“piece of bumper sticker cover[ing] a punched out rear door lock.” 
Id. at 409.

Contrarily, 
we reversed Cruz’s conviction because the prosecution’s circumstantial

evidence demonstrated that Cruz, an unemployed person, merely performed the

occasional odd job for the co-conspirators. 
Id. at 411. Cruz’s 
“odd jobs” included

removing the roof of a soon-to-be-exported John Deere tractor and placing a

container onto a trailer. 
Id.

      We find it 
obvious that Fermin’s and Decubas’s roles in the conspiracy are

patently unlike Cruz’s in Lluesma. Fermin and Decubas had been Castillo’s

managers for years, soliciting sales for PDG and engineering a sham Tennessee

corporation to mask the drugs’ true origin. They certainly did more than the

occasional odd job. Fermin and Decubas are right to suggest that presence alone

may not establish knowledge unless “it would be unreasonable for anyone other

than a knowledgeable participant to be present.” 
Id. at 410. But 
Fermin and

Decubas were not “merely” present at Kirby/Meridian. To reiterate, fake invoices

were found on Fermin’s computer, and Decubas told the FDA agents that

Kirby/Meridian was not engaged in the pharmaceutical business. Moreover, both

conspirators concealed Castillo’s involvement. Substantial evidence, independent

of their presence, supported the jury’s conclusion that Fermin and Decubas had

knowledge of the scheme.

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      Having dispensed with Fermin and Decubas’s sufficiency argument, we turn

to the remaining two issues on appeal.

B. Fermin’s Jury Instructions

      Even though Fermin was convicted of conspiracy, he argues that his

conviction must be reversed because of an error in a jury instruction for a different

count: the substantive offense. Fermin argues that because the jury instructions for

the underlying offense—unlicensed wholesale distribution of drugs—did not

contain the word “knowingly,” he was prejudiced. Under Apprendi, “any fact that

increases the penalty for a crime beyond the prescribed statutory maximum must

be submitted to a 
jury.” 530 U.S. at 490
, 120 S. Ct. at 2362–63. Because Fermin

did not object to the jury instructions at trial, the instructions are reviewed for plain

error. Montgomery v. Noga, 
168 F.3d 1282
, 1294 (11th Cir. 1999). The error must

have been a plainly incorrect statement of law, and it must have resulted in a

miscarriage of justice. United States v. Prather, 
205 F.3d 1265
, 1272 (11th Cir.

2000).

      We first note that the jury instructions for Fermin’s conspiracy conviction

stated: “Count 5 charges that the Defendants knowingly and willfully conspired to

distribute prescription drugs wholesale without a license.” The jury was further

instructed that the prosecution needed to prove that Fermin and Decubas “knew the

unlawful purpose of the plan and willfully joined in it.” Although the substantive

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offense’s instructions did not contain the word “knowingly,” we can hardly say

that that omission engineered a miscarriage of justice when Fermin was convicted

of a separate crime, with instructions that adequately explained the requisite mens

rea.

C. Decubas’s Jury Instructions

    Decubas argues that her conviction should be treated as a misdemeanor

because the jury instructions for the conspiracy count did not include an element of

fraudulent intent. Without this element, she argues, her sentence violates

Apprendi. 
See 530 U.S. at 590
, 120 S. Ct. at 2362–63. Because Decubas did not

object to the jury instructions at trial, we review them for plain error. See 
Noga,

168 F.3d at 1294
.

       Decubas appears to have misconstrued the statutes forming the underlying

offenses of her conspiracy conviction. The prosecution alleged that Decubas

conspired to violate 21 U.S.C. §§ 331(t), 333(b)(1)(D), and 353(e)(2)(A). Section

331 provides an extensive list of prohibited acts; one of those acts, listed in

§ 331(t), is the wholesale distribution of drugs without a license in violation of

§ 353(e)(2)(A). Section 333(b)(1)(D) states that violators of § 353(e)(2)(A) “shall

be imprisoned for not more than 10 years or fined not more than $250,000, or

both.” The phrase “fraudulent intent” is found nowhere in the three statutes.




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      Decubas cites United States v. Bradshaw, 
840 F.2d 871 
(11th Cir. 1988),

where the defendant had been convicted under the general penalty provisions of

§ 333(a), which make all § 331 violations misdemeanors unless they are committed

“with the intent to defraud.” 21 U.S.C. § 333(a)(2). That argument might hold

water if Decubas had been indicted for conspiring to violate § 333(a), but she was

indicted under § 333(b), which states: “Notwithstanding [§ 333(a)], any person

who violates section 331(t) of this title by . . . knowingly distributing drugs in

violation of section 353(e)(2)(A) . . . shall be imprisoned for not more than 10

years or fined not more than $250,000, or both.” § 331(b)(1)(D). The jury

instructions for Decubas’s and Fermin’s conspiracy convictions, as noted above,

more than adequately explained the mens rea required for their conspiracy

convictions.

                                 IV. CONCLUSION

      The prosecution’s evidence was more than sufficient to support the

appellants’ convictions. In addition, the jury was correctly instructed on the mens

rea necessary to convict both appellants.

      AFFIRMED.




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