UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

RICKY JOE NELSON,

Defendant - Appellant.	No. 02-6183

(D.C. No. 01-CR-142-R)

(W.D. Oklahoma)

ORDER AND JUDGMENT*

Before EBEL, HENRY, and HARTZ, Circuit Judges.

On direct appeal, defendant-appellant Ricky Joe Nelson, a doctor, challenges his conviction for conspiracy to prescribe painkillers illegally in violation of 21 U.S.C. § 841(a)(1),1 and for conspiracy to launder the proceeds of those sales outside the United States in violation of 18 U.S.C. § 1956(h).2 First, Nelson argues that there was insufficient evidence to support the conviction against him. (Aplt. Br. at 4-7.) We examine this objection below. Second, Nelson asserts that the trial court improperly instructed the jury in stating that it was unlawful for a person knowingly or intentionally to distribute a controlled substance "outside the usual course of medical practice or without legitimate purpose," when this instruction should have used the word "and" instead of "or." (Aplt. Br. at 8.) But, based on an examination of the record, the trial court did properly use the word "and" in its instructions to the jury. (Jury Instructions, ROA, Doc. No. 34, ¶¶ 6, 7 (relating that it is unlawful for a person knowingly or intentionally to distribute a controlled substance "outside the usual course of medical practice and without legitimate purpose") (emphasis added) [hereinafter Jury Instructions]); see also Conference with Counsel, ROA Vol. IV, Tr. at 405-
07 (agreeing to use the word "and" in instructions to the jury). Accordingly, Nelson has no argument on appeal regarding the wording of the jury instructions, and we consider only his argument regarding the sufficiency of evidence to support his conviction. We find sufficient evidence to support the jury's verdict and AFFIRM Nelson's conviction.

We review whether evidence is sufficient to support a jury's verdict de novo. United States v. Lewis, 240 F.3d 866, 870 (10th Cir. 2001) (citing United States v. Jackson, 213 F.3d 1269, 1283 (10th Cir. 2000)). On appeal, however, we ask only "whether, when considered in the light most favorable to the government, a reasonable jury could have found the defendant guilty beyond a reasonable doubt." Id. (citing United States v. Hazlicek, 187 F.3d 1228, 1239 (10th Cir. 1999)).

According to the evidence presented at trial, Nelson and his co-conspirators in Oklahoma City created a website called NationPharmacy.com through which consumers could supposedly obtain both prescription and non-prescription drugs. (Tr. 22-30.) However, almost all of the drugs distributed through the website were controlled substances, and the vast majority were hydrocodone, a powerful and addictive painkiller. (Tr. 61, 103, 159; Aple. Br. at 2.) Customers would select the drug of their choice from the website, fill out a short questionnaire that would be sent to Nelson to review, and he would sign a prescription for the medication to be filled at his co-conspirator's pharmacy. (Tr. at 22, 31-32, 102, 297.) Nelson traveled periodically to the pharmacy and signed hundreds to thousands of prescription forms at a time. (Tr. 62-65, 105.) The pharmacy paid him for each prescription written, and filled the orders at inflated prices. (Tr. 348; Aplt. Br. at 3.) At Nelson's direction, the $175,000 that he was paid for signing the prescriptions was wired to an account that he controlled outside the United States at the Bank of Antigua. (Tr. 345-48.) Nelson never once examined the patients for whom he signed prescriptions, and did not dispute that his actions in this regard were outside the bounds of accepted medical practice. (Tr. 139, 173, 179, 272, 335.) In mid-December 2000, the Oklahoma State Board of Medical Licensure and Supervision suspended Nelson's license, and, in early March of 2001, the Oklahoma State Pharmacy Board shut down his co-
conspirator's pharmacy. (Aple. Br. at 5.)

After examining the evidence presented at trial in the light most favorable to the government, we conclude that a reasonable jury could have found Nelson guilty of conspiracy to prescribe prescription drugs illegally and guilty of conspiracy to launder the proceeds of those sales outside the United States beyond a reasonable doubt. Lewis, 240 F.3d at 870. We therefore AFFIRM his conviction for these crimes.

ENTERED FOR THE COURT

David M. Ebel

Circuit Judge