Full opinion text
MEMORANDUM OF DECISION AND ORDER SPATT, District Judge On November 12, 2015, the Defendant William Scully a/k/a Liam Scully (the “Defendant” or “Scully”) was convicted, after a jury trial, of 66 felony counts with which he was charged pursuant to a 75-count superseding indictment filed on July 22, 2015. Scully now moves under Federal Rule of Criminal Procedure' (“Fed. R. Crim. P.” or the “Rule(s)”) 29 for a judgment of acquittal on all counts, and under Rule 33 for a new trial in the interest of justice. For the reasons that follow, the Rule 29 motion is granted in part and denied in part, and the Rule 33 motion is denied in its entirety. I. Procedural Background A. The Original Indictment On April 9, 2014, the Government filed a 73-count indictment against Scully and co-Defendant Shahrad Rodi Lameh. The charges in. the indictment stemmed from their ownership and operation of Pharma-logical, Inc. (“Pharmalogical”) d/b/a Medical Device King and MDK, and Taranis Medical Corp. (“Taranis”), companies that were engaged in the business of selling prescription drugs and other pharmaceutical products. In general, the indictment alleged that Scully and Lameh, through these companies, knowingly and willfully imported foreign versions of prescription drugs and medical devices, which were not approved by the federal Food and Drug Administration (“FDA”) for use in the United States, and, using materially false and fraudulent pretenses, sold them to customers around the country. In particular, the indictment charged Scully and Lameh with the following felony counts: (i) Count One: Conspiracy to Commit Wire Fraud in violation of 18 U.S.C. § 1349; (ii) Counts Two through Eighteen: Wire Fraud in violation of 18 U.S.C. § 1343; (iii) Count Nineteen: Conspiracy to Commit Mail Fraud in violation of 18 U.S.C. § 1349; (iv) Counts Twenty through Thirty-Six: Mail Fraud in violation of 18 U.S.C. § 1341; (v) Count Thirty-Seven: Conspiracy to Distribute Misbranded Drugs in violation of 18 U.S.C. § 371; (vi) Counts Thirty-Eight through Fifty-Four: Introduction of Misbranded Drugs into Interstate Commerce in violation of 21 U.S.C. §§ 331(a) and 333(a)(2); (vii) Counts Fifty-Five through Seventy-One: Receipt of Misbranded Drugs in Interstate Commerce and Delivery Thereof for Pay in violation of 21 U.S.C. §§ 331(c) and 333(a)(2); (viii) Count Seventy-Two: Fraudulent Importation and Transportation of Goods in violation of 18 U.S.C. § 545; and (ix) Count Seventy-Three: Trafficking in Counterfeit Drugs in violation of 18 U.S.C. § 2320(a)(4). On April 30, 2014, Scully and Lameh pled not guilty to all counts and were released on bond. However, Lameh thereafter entered a plea agreement with the Government, pursuant to which he appeared before United States Magistrate Judge Steven I. Locke on October 16, 2014, and pled guilty to Counts 1 and 37 of the indictment. On October 20, 2014, this Court accepted the guilty plea, and Lameh is currently awaiting sentencing. B. The Superseding Indictment On July 22, 2015, the Government filed a superseding indictment against Scully, which added two substantive counts: (i) Count Seventy-Four: Introduction of Unapproved New Drugs into Interstate Commerce in violation of 21 U.S.C. §§ 331(d) and 333(a)(2); and (ii) Count Seventy-Five: Unlicensed Wholesale Distribution of Prescription Drugs in violation of 21 U.S.C. §§ 331(t) and 333(b)(1)(D). By agreement of the parties, Scully’s arraignment on the superseding indictment was postponed until October 7, 2015, the first day of jury selection. On that date, he appeared before Magistrate Judge Locke and pled not guilty to all counts. C. The Trial On October 8, 2015, the trial commenced. Over the course of approximately five weeks, forty witnesses, including the Defendant, testified, and the parties introduced numerous items of documentary and physical evidence. The Court notes that, as a defense to each of the charged counts, the Defendant asserted that he lacked the requisite culpable mind state because at all times he was relying in good faith upon the advice of his counsel. On November 10, 2015, the Court submitted 71 of the 75 charged counts to the jury. On November 12, 2015, the jury returned guilty verdicts on 66 felony counts. As to each guilty count, the jury explicitly indicated on the verdict sheet that the Defendant had not established the defense of advice of counsel. II. Discussion For purposes of these motions, familiarity with the underlying trial record, which spans more than 3,500 transcribed pages, is presumed. The Court’s discussion of the evidence adduced at the trial will be limited to the specific challenges presently raised by the Defendant. In this regard, references to the trial transcript are denoted as “Tr.” A. The Rule 29 Motion 1. The Applicable Legal Standards “A defendant bears a heavy burden in seeking to overturn a conviction on grounds that the evidence was insufficient.” United States v. Cruz, 363 F.3d 187, 197 (2d Cir.2004); United States v. Si Lu Tian, 339 F.3d 143,150 (2d Cir.2003) (quoting United States v. McCarthy, 271 F.3d 387, 394 (2d Cir.2001)). In particular, “a conviction will be affirmed if ‘any rational trier of fact could have found the essential elements of the crime[s] beyond a reasonable doubt.’ ” Id. (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)) (emphasis in original). Stated otherwise, a Rule 29 judgment of acquittal is only appropriate “ ‘if the evidence that the defendant committed the crime is nonexistent or so meager that no reasonable jury could find guilt beyond a reasonable doubt.’ ” United States v. Temple, 447 F.3d 130, 136 (2d Cir.2006), cert. denied, 549 U.S. 997, 127 S.Ct. 495, 166 L.Ed.2d 373 (2006) (quoting United States v. Guadagna, 183 F.3d 122, 130 (2d Cir.1999)). “In assessing the evidence, a court is constrained to bear in mind that Rule 29 ‘does not provide [it] with an opportunity to substitute its own determination of ... the weight of the evidence and the reasonable inferences to be drawn for that of the jury.’ ” Temple, 447 F.3d at 136 (quoting Guadagna, 183 F.3d at 129). Rather, “[w]here a jury has rendered a verdict of guilty, the duty of a court passing on a Rule 29 motion is to ‘review all of the evidence presented at trial in the light most favorable to the government, crediting every inference that the jury might have drawn in favor of the government.’ ” Id. (quoting United States v. Walker, 191 F.3d 326, 333 (2d Cir.1999)). Of particular relevance here, “ ‘[t]he proper place for a challenge to a witness’s credibility is in cross-examination and in subsequent argument to the jury,’ United States v. Roman, 870 F.2d 65, 71 (2d Cir.1989) (quotation marks omitted), not in a motion for a judgment of acquittal.” United States v. Truman, 688 F.3d 129, 139 (2d Cir.2012); see United States v. Ashburn, 11-cr-303, 2015 WL 5098607, at *16, 2015 U.S. Dist. LEXIS 115629, at *44 (E.D.N.Y. Aug. 31, 2015) (“ ‘Matters of competing inferences, the credibility of witnesses, and the weight of the evidence are within the province of the jury,’ and the court is ‘not entitled to second-guess the jury’s assessments’ ” (quoting United States v. Rea, 958 F.2d 1206, 1221-22 (2d Cir.1992))). “It is the province of the jury and not of the court to determine whether a witness who may have been inaccurate, contradictory and even untruthful in some respects was nonetheless entirely credible in the essentials of his testimony.” United States v. O’Connor, 650 F.3d 839, 855 (2d Cir.2011). In this regard, relevant circumstances bearing upon a witness’s testimony — such as a cooperation agreement with the Government and inconsistencies in his or her testimony — are simply “factors relevant to the weight the jury should accord to the evidence, and do not [necessarily] justify the grant of a judgment of acquittal.” Truman, 688 F.3d at 140 (quoting United States v. Coté, 544 F.3d 88, 100 (2d Cir.2008)). In this Circuit, “even the testimony of a single accomplice witness is sufficient to sustain a conviction, provided it is not ‘incredible on its face,’ United States v. Florez, 447 F.3d 145, 155 (2d Cir.2006), or does not ‘def[y] physical realities,’ Coté, 544 F.3d at 101 (quotation marks omitted).” Id. at 139. “In short, ‘[w]here a court concludes after a full analysis of the evidence in connection with a Rule 29 motion that ‘either of the two results, a reasonable doubt or no reasonable doubt, is fairly possible, [the court] must let the jury decide the matter.’ ” United States v. Martinez, 978 F.Supp.2d 177, 186-87 (E.D.N.Y.2013) (quoting Temple, 447 F.3d at 137). With these principles in mind, the Court will now turn to the Defendant’s specific contentions. First, the Court will address several broad arguments that the Defendant raises in an effort to overturn all 66 guilty counts. Second, the Court will address several narrower arguments that challenge the sufficiency of the evidence relating to individual guilty counts. 2. The Arguments Directed at AH Guilty Counts The Defendant asserts three related bases for overturning all of the jury’s guilty verdicts, each of which attacks the sufficiency of the evidence that he acted with the requisite criminal intent. First, Scully contends that he established the advice of counsel defense, thereby negating criminal intent, an essential element required to sustain a conviction on any of the charges against him. Second, Scully contends that the testimony of attorney Geoffrey Kaiser, Esq. was not relevant to this case and confused the jury about the merits of his advice of counsel defense. Third, Scully contends that the totality of the evidence adduced at trial, especially the testimony of Shahrad Rodi Lameh, was otherwise insufficient to establish the criminal intent required to sustain convictions on any of the charges against him. The Court will consider each of these arguments in greater detail below. a. As to Whether Scully Established an Advice of Counsel Defense i. The Legal Standards In order “to benefit from an advice of counsel defense, a party must show that he (1) ‘honestly and in good faith’ sought the advice of counsel; (2) ‘fully and honestly la[id] all the facts before his counsel’; and (3) ‘in good faith and honestly followed] counsel’s advice, believing it to be correct and intending that his acts be lawful.” United States v. Colasuonno, 697 F.3d 164, 181 (2d Cir.2012) (quoting Williamson v. United States, 207 U.S. 425, 453, 28 S.Ct. 163, 52 L.Ed. 278 (1908)). Controlling authorities recognize that this rule “presupposes the defendant’s solicitation of advice in good faith” and does not offer protection for someone who “willfully and knowingly violate[s] the law and [seeks to] excuse himself from the consequences thereof by pleading that he followed the advice of counsel.” United States v. Beech-Nut Nutrition Corp., 871 F.2d 1181, 1194-95 (2d Cir.1989), cert. denied, 493 U.S. 933, 110 S.Ct. 324, 107 L.Ed.2d 314 (1989) (quoting Williamson, 207 U.S. at 453, 28 S.Ct. 163). Nor does the defense provide shelter for someone who allegedly relied upon the good faith advice of a professional, but nonetheless acted with “willful blindness” to facts that suggested his conduct was illegal. See id. at 1194 (finding “no logical reason” why a jury could not find that a defendant who relied on his counsel’s advice also “studiously] avoidfed] ... gaining other pertinent information” (citing United States v. Duncan, 850 F.2d 1104, 1118 (6th Cir.1988))). Rather, a defendant seeking to invoke the advice of counsel defense is required to show, among other things, that he made “complete disclosure to counsel, sought advice as to the legality of his conduct, received advice that his conduct was legal, and relied on that advice in good faith.” Markowski v. SEC, 34 F.3d 99, 104-05 (2d Cir.1994) (citation omitted). To prevail on this defense, the Defendant is required to satisfy each element of the applicable legal standard. See Colasuonno, 697 F.3d at 181 (citing United States v. Evangelista, 122 F.3d 112, 117 (2d Cir.1997)). ii. Application to the Facts of this Case The trial record contains evidence that, throughout the relevant time period, Scully was in consultation with his primary attorney, Richard Gertler, Esq., about significant aspects of his business. In this regard, Scully emphasizes that he retained Gertler in 2008, well before Pharmalogieal began selling any prescription drugs — a statement that is corroborated by Gertler’s billing records — and immediately began discussing the legality of parallel importing prescription drugs for resale in the United States. (Tr. 2701-02, 2711-12, 2718-19, 2332; see Def. Ex. “B”). He further maintains that he remained in regular contact with Gertler throughout the course of Pharmalogical’s expansion into new product markets, and sought advice at every critical juncture. (Tr. 2791-93, 2813). In this regard, he points to the various opinion letters that Gertler prepared for him as evidence that Gertler knew about and approved of the same conduct that forms the basis of the Government’s charges. (See Def. Ex. “K”, “AI”, “AP”). Scully claims that the purpose of seeking counsel’s advice was “to make sure all the ideas [he] had were completely legal,” and, apparently, Gertler repeatedly confirmed that they were. (Tr. 2719-20, 2306). However, there was also substantial evidence, which, if believed, would defeat one or more of the essential elements of the advice of counsel defense. (A) Whether Scully Honestly and in Good Faith Sought Gertler’s Advice At trial, there was considerable evidence adduced to suggest that Scully did not honestly and in good faith seek out Gertler’s advice. For example, Lameh disputed the notion that Gertler had been on retainer since 2008, and that Gertler was advising the company about the legality of their business concept before it began parallel importing misbranded drugs. (Tr. 1915, 2174-75). Instead, he testified that he and Scully knew their Botox was misbranded; that Scully did not suggest retaining an attorney until a potentially large client, namely, Dr. James Avellini, demanded proof of the product’s legitimacy; and that Gertler’s eventual opinion letter regarding the legality of selling the Botox was merely a sales tool, crafted for the sole purpose of assuaging Dr. Avellini’s concerns. (Tr. 1915, 2174-75, 2181-82). Lameh further testified that Gertler’s opinion letter regarding the legality of importing and selling intrauterine devices known as Mirenas had similar origins. Critically, he testified that Pharmalogical had already begun importing and distributing misbranded Turkish-language Mire-nas before receiving any opinion on the legality of that conduct. (Tr. 2182). He also testified that the sole motivation for obtaining a written opinion on the legality of parallel importing Mirenas was that another potentially lucrative client, namely, Planned Parenthood, demanded assurances as to the legitimacy of the devices and the legality of purchasing them with noncompliant labels. (Tr. 1922-24, 2175). Further, even after Planned Parenthood returned its initial order of Mirenas because they lacked the appropriate labeling; and even though Lameh testified that he and Scully “kn[ew] that there was something wrong with” the devices; the two men nevertheless decided to sell them elsewhere. (Tr. 1926). The evidence also revealed that, prior to the preparation of the Mirena opinion letter, Scully had been advised by FDA officials that the Mirenas he sought to import were considered unapproved new drugs, the distribution of which constituted a federal crime. (See Govt. Ex. “82”). Despite this admonition, he sought out contrary advice from Gertler. (Tr. 2757-58). Further, as the Government points out, the jury was entitled to consider certain evidentiary gaps in the trial record, which contradict Scully’s version of the events. For example, Pharmalogical expanded into the sale of oncology drugs in late-2010 or early-2011, but Gertler’s billing records do not reflect that he provided any legal services to Pharmalogical during this time. Despite the testimony by Scully and Gert-ler that those records do not necessarily reflect all of the pertinent discussions that occurred during that time period, (Tr. 2290-92), the jury was entitled to — and apparently did — conclude otherwise. The jury also heard that, although Gert-ler prepared written opinion letters approving of Pharmalogical’s sale of Botox and Mirenas, he was neither asked to prepare, nor did prepare a similar written endorsement of the company’s expansion into cancer drugs. In this regard, the jury heard Scully and Gertler repeatedly contend that, despite appearing to relate specifically to Botox and Mirenas; and despite not stating otherwise; the opinion letters were meant to convey advice relating to every other prescription drug that Phar-malogical might potentially import and distribute. (Tr. 2360, 2869, 2452, 2515-16; 2607-10). The jury was entitled to assess the credibility of this explanation, and draw its own conclusions about whether Scully in good faith and honestly sought his counsel’s advice about this important aspect of his business. Finally, the evidence showed that, following the execution of a search warrant on Pharmalogical’s offices in May 2012, Gertler was under the impression that Scully would refrain from selling any oncology products until the Government’s investigation into his business was concluded. (Tr. 2004-05, 2008, 2451, 2662-63). In fact, Scully conceded that, although the business continued to operate on a limited scale, a decision had been made to cease selling oncology products. (Tr. 2907, 2913-14, 2916). However, while under federal investigation, and without consulting Gert-ler, Scully formed a second company, Tar-anis Medical Corp., and resumed distributing misbranded cancer drugs. (Tr. 2543, 2550, 2628, 2631, 2877, 2889, 2915). The Court notes that, at the trial, Gert-ler maintained that the decision to refrain from selling oncology drugs in mid-2012 was not the result of any legal opinion that Scully had committed a crime. (Tr. 2451-52). Nevertheless, the jury was entitled to draw its own inferences from the fact that Scully, unknown to his business partner and his attorney, prepared and executed written agreements creating a “sales component subsidiary” of Pharmalogical; unilaterally authorized Taranis to use Phar-malogieal’s wholesale license to distribute prescription drugs; acquired and stocked a warehouse space in Suffolk County; and began fulfilling orders for imported oncology drugs. (2015-19, 2030, 2453, 2550, 2628, 2631, 2877-78, 2883-85, 2889, 2915, 3038). In this case, the jury apparently concluded that these facts were not consistent with “honestly and in good faith [seeking] the advice of counsel.” Accordingly, in the Court’s view, there was sufficient evidence from which a jury could reasonably conclude that Scully did not sustain his burden as to the first element of the advice of counsel defense, namely, the requirement that he honestly and in good faith sought the advice of his counsel. Therefore, his Rule 29 motion, to the extent that it seeks a judgment of acquittal as to all guilty counts on this basis, is denied. (B) Whether Scully Fully and Honestly Laid All the Facts Before Gertler At trial, there was also considerable evidence that Scully withheld material facts from Gertler. For example, Lameh testified that the Botox opinion letter was based, at least in part, on false information that Scully provided to Gertler specifically in order to obtain written confirmation that could be furnished to customers. (Tr. 2181-82). In particular, by the time the men consulted Gertler regarding the legality of their Bo-tox business, Lameh testified that he and Scully already knew the relevant packages lacked valid National Drug Codes (“NDCs”) and believed them to be mis-branded. (Tr. 1915, 2174-75, 2181). According to Lameh, they also knew that the deficient labeling on their products had led customers and others in the industry, including manufacturer representatives, to “badmouth” Pharmalogical and encourage prospective customers to demand proof of the authenticity of the foreign drugs. (Tr. 1943, 1946, 2174). However, the Botox opinion letter nevertheless concluded that “Pharmalogical has no reason to believe it is not in full compliance with” the relevant federal laws. (See Def. Ex. “K”). Further, as noted above, Lameh testified that Pharmalogical had already begun importing and distributing misbranded Turkish-language Mirenas before receiving any legal opinion on that subject. (Tr. 2182). In this regard, he plainly testified that he and Scully withheld this fact from Gertler because they “knew it was illegal” and wanted to respond to Planned Parenthood in a way that would secure its patronage. (Tr. 1976). Gertler confirmed that he was unaware of this fact. (Tr. 2488, 2573-74). There was other evidence to indicate that the Mirena opinion letter was based on inaccurate or incomplete information supplied by Scully. For example, the letter is premised, in part, on the assumption that Pharmalogical purchased Mirenas directly from the product manufacturer, namely, Bayer, or one of its authorized distributors. (Tr. 2762-63; see Def. Ex. “AI”). However, both Scully and Lameh conceded that this was'untrue. (Tr. 2217, 2762). The evidence showed that even Gertler knew this was untrue. (Tr. 2533-34, 2542, 2577). Nevertheless, all three men held the letter out to customers as a reliable legal opinion. According to Gertler, if Scully had, in fact, told any customers that he purchased products directly from the manufacturer, that statement would be false. (Tr. 2533-34). Yet, Charles Burke, of South Shore Neurologic Associates, and Dr. Faisal Waheed ■ Paracha, of Kingston Oncology Hematology, both testified that Scully specifically told them that the company purchased products directly from the manufacturer. (Tr. 381-83, 386-91, 405, 1259, 1265). Lameh also testified that he observed Scully strongly imply to prospective customers that their products had been obtained directly from the manufacturer. (Tr. 1965). Scully himself testified that all of the products that Pharmalogical sold “were coming from the original manufacturers,” (Tr. 3043), although his testimony indicates that he could not actually verify the relevant chain of custody. In this regard, he conceded that many of the products he purchased from Ozay Pharmaceuticals, a supplier in Turkey, had come from “middlemen,” not the actual manufacturer, and that he had not attempted to identify who those middlemen were. (Tr. 2931). He took a similarly misleading approach with Phar-malogieal’s website, which contained the carefully-crafted statement that Pharma-logical “only offer[ed] brand products from FDA approved and registered facilities.” (Tr. 3043-44; see Govt. Ex. “81”). Of particular importance in this portion of the analysis, Gertler’s testimony revealed that he knew very little about the authenticity of Pharmalogical’s products. Initially, despite testifying that he advised Pharmalogical over the course of several years on whether the specific labeling on its products complied with federal laws and regulations, he conceded that he never actually inspected any of the company’s inventory and admitted that he “had no idea what was sold and when it was sold.” (Tr. 2489, 2516, 2674). Further, despite claiming to know the identities of Pharmalogical’s suppliers, Gertler conceded that he was unaware that the company purchased the bulk of its inventory from World Medical in Great Britain and Ozay Pharmaceuticals in Turkey. (Tr. 2488, 2533, 2538, 2615). In fact, he was unaware that Scully was importing Mirenas from Turkey at all. (Tr. 2488). He was unaware that Pharmalogical was selling products without the required “Rx Only” designation on the package, and he was unaware that Pharmalogical was unable to obtain pedigrees or certificates of authenticity from suppliers — this despite the fact that Scully told prospective customers that all of Pharmalogical’s products were FDA-approved. (Tr. 696, 1259, 1265, 2617, 2674, 2744, 2926, 2930). Further, there was substantial evidence at the trial that, in forming his opinions on the legality of Pharmalogical’s business, Gertler was not adequately informed about aspects of the company’s importation methods, some of which he admitted would be material to his analysis. In this regard, the Mirena opinion letter indicates that Pharmalogical “follows all laws and regulations governing importing Mirena into the USA,” thus obviating the need for Gertler to have considered the federal customs laws. However, Gertler conceded that he never even had a conversation with Scully about the methods that Pharmalogical used to move its products through customs. (Tr. 2483). The jury heard evidence that Ozkan Semizoglu, the principal of Ozay Pharmaceuticals, advised Lameh that customs officials were being paid cash bribes to release shipments of drugs that had been seized at the border. (Tr. 1979-80). Gertler testified that he was not aware of these bribes. (Tr. 2481-82). The jury also heard evidence that packages of prescription drugs intended for delivery to Pharmalogical were seized by customs officials, sometimes permanently. (Tr. 1978-79; see Govt. Ex. “179”). Gertler conceded that he was also unaware of this fact, (Tr. 2483, 2511, 2538), and testified that he would consider it “important to know” if this was happening to his client’s packages. (Tr. 2675). Further, Scully testified that he' received written notifications when packages were seized, some of which explicitly indicated that the confiscated items were mis-branded or unapproved drugs. (Tr. 2945). Gertler said he had never seen these documents, and Scully did not contend otherwise. (Tr. 1957, 2511-12, 2956-57). Scully and Lameh both testified that they traveled to Dusseldorf, Germany in 2011 to attend a global pharmaceutical exposition at which they discussed importation methods with representatives of Ozay Pharmaceuticals. (Tr. 1976, 1983, 2828-29). In this regard Lameh testified that these discussions focused on ways to avoid having shipments of unapproved drugs seized at the border. (Tr. 1978). For example, they discussed shipping lower quantities of products per package; falsifying the declared value of the packages; and strategically spacing deliveries, all to avoid detection by federal investigators and customs officials. (Tr. 1981-82). Gertler testified that he was unaware that Scully and Lameh had traveled to Dusseldorf for this purpose. (Tr. 2483-84, 2537). Nor was he aware that Scully was falsely identifying the contents of prescription drug packages as “samples” to avoid detection by customs officials (Tr. 2487-88); that he was deliberately causing his shipments to be sent in small packages (Tr. 2488); that he was falsely declaring that valuable shipments of prescription drugs had “no commercial value” (Tr. 2510); or that he was strategically spacing shipments one day apart (Tr. 2537). Although Scully denied that the company engaged in such techniques to avoid detection by customs, (Tr. 2829), the jury was not required to credit his testimony, and apparently declined to do so. Further, the jury heard evidence that, without first seeking advice from Gertler, Pharmalogical entered the market for oncology drugs via a “sales arrangement joint venture” with a Canadian company known as Quantum Solutions. (Tr. 2814-16). Although Scully maintained that he discussed the concept of a proposed joint venture with Gertler and another attorney, (Tr. 2816-17), Gertler denied this, and testified that Scully never consulted with him about Pharmalogical’s licensing arrangement with Quantum, and never sought his review of the underlying contract between the two companies. (Tr. 2497-98, 2500-01, 2527). In this regard, the jury also heard evidence regarding the details of this arrangement, including Lameh’s testimony that its purpose and effect was to convince doctors’ offices and clinics that they were purchasing products from a licensed and insured American supplier, namely, Phar-malogical, when in reality the products were being supplied by Quantum and shipped from Canada. (Tr. 1962-63). Scully conceded on cross-examination that Phar-malogical “was sending out invoices from a New York address ... even though the customers were customers of Quantum, a Canadian company.” (Tr. 2939-40). Gertler testified that he was not advised of these facts, and that he does not consider it proper for Pharmalogical to have been “pretend[ing]” to sell products to an end user. (Tr. 2499-2500). There was also considerable evidence at the trial to demonstrate that Scully often effectuated a “bait-and-switch” sales technique, whereby customers of Pharmalogical would order products that were advertised on the company’s website as being FDA-approved, and then receive mis-branded and unapproved versions of the products. (Tr. 386, 391, 933-35, 964, 1263-65, 1267-69, 1590-94, 1609-10, 1822, 1826-30, 1860). Gertler admitted that he was unaware of this practice. (Tr. 2616-17, 2675-76). Accordingly, in the Court’s view, there was sufficient evidence from which a jury could reasonably conclude that Scully did not sustain his burden as to the second element of the advice of counsel defense, namely, the requirement that he fully and honestly lay all of the facts before his counsel. In reaching this conclusion, the Court takes special note of an argument set forth by the Defendant in support of a judgment of acquittal. Specifically, the defense relies on a statement of law in the Second Circuit’s opinion in United States v. Beech-Nut Nutrition Corp., 871 F.2d 1181, 1194 (2d Cir.1989), that “a defendant who would rely on an advice of counsel defense is required to have disclosed all pertinent information in his possession to his attorney” (emphasis supplied). Focusing on the word “pertinent,” the defense argues that any information Scully allegedly withheld from Gertler in seeking his counsel was mere “minutiae,” and not material to Gert-ler’s legal analysis. Stated otherwise, the defense contends that, even assuming Scully did not disclose each and every available fact to his attorney, he nevertheless disclosed all “pertinent” facts, which is sufficient to satisfy the second prong of the advice of. counsel defense under BeechNut. The Court rejects this contention. Initially, the Court has reservations about whether the word “pertinent” was intended to alter the scope of the advice of counsel defense as suggested by the defense. In fact, more recent Second Circuit authority omits this word from the applicable standard. See, e.g., Colasuonno, 697 F.3d at 181. However, even assuming that this argument is viable, and only the disclosure of “pertinent” facts is required for a defendant to benefit from the advice of counsel defense, Rule 29 relief is nevertheless unwarranted because the question of which facts were “pertinent” to Gertler’s analysis is a factual one within the exclusive province of the jury. In this regard, after considering the totality of the evidence adduced at the trial, the jury was free to determine for itself whether the omissions outlined above constituted mere “minutiae,” as the defense contends, or whether they were relevant and material to an informed legal opinion on the legality of Pharmalogical’s business. The jury apparently concluded that the latter was true, and at this juncture the Court can discern no substantial basis for disturbing that finding. (C) Whether Scully Honestly Followed Gertler’s Advice, Believing it to be True and Intending that his Actions be Lawful As to the final element, there was evidence at trial that Scully did not honestly follow the advice provided by Gertler, believing it to be true, and intending that his actions be lawful. In this regard, Gertler testified that he advised Scully not to actively solicit customers to purchase prescription drugs from Pharmalogical. (Tr. 2527). In fact, the Mirena opinion letter is based partly on this premise. (Tr. 2576; see Def. Ex. “AI”). However, the jury was shown fliers that Pharmalogical circulated widely to potential customers around the country, which contained a list of products the company offered for sale, and corresponding prices, some of which were accompanied by the word “Wow.” Although Scully and Gertler testified that they did not consider these fliers to constitute marketing material, or advertisements, or inducements to purchase from Pharmalogical, (Tr. 2501-02, 2504, 2527, 2575, 2763-65), the jury was entitled to reach a different conclusion. Further, Lameh testified that, following the execution of the search warrant in May 2012, he and Scully arranged for a meeting with Gertler, in order to discuss the viability of continuing to sell misbranded Botox while the FDA’s investigation was pending. (Tr. 2008-09). According to Lameh, Gertler advised them that continuing to sell the unapproved Botox was a crime, but that “the worse [sic] case scenario would be a misdemeanor and a slap on the wrist.” (Tr. 2009). Thus, the jury heard evidence that, notwithstanding Gertler’s advice that his actions were illegal, Scully continued to conduct business as usual. (Tr. 2010-11). In this regard, Lameh testified that they “were informed” about the risks, and “knew it was wrong,” but did so anyway. (Tr. 2005). The Court further notes that this element of the advice of counsel defense contemplates more than simply whether Scully followed Gertler’s advice — it also requires that he believed the advice to be true and intended that his acts be lawful. In the Court’s view, there was sufficient evidence at trial to lead a rational jury to conclude that' neither of these requirements was met. In this regard, the jury was entitled to consider whether Scully unjustifiably ignored indications that Gertler’s advice was not accurate. This necessarily includes Scully’s own background in the pharmaceutical and medical sales industries, which allowed him to give knowledgeable and specialized testimony about a range of relevant subjects. The jury was entitled to consider Scully’s superior knowledge base, together with the selective information he shared with Gertler, in determining whether he honestly believed that the advice he solicited from Gertler was true. In addition, the trial record is replete with instances of objective bases for questioning the validity of Gertler’s conclusions. For example, as noted above, La-meh testified that prospective customers and others in the industry openly questioned the legitimacy of Pharmalogical’s Botox products and the legality of purchasing them in this country since they lacked valid NDCs. (Tr. 2174). In this regard, representatives of the manufacturer, Allergan, “badmouthed” Pharmalogical to prospective customers and urged them to demand proof of authenticity. (Tr. 1943, 1946, 2174). The jury was entitled to assess the credibility of, and reject, Gertler’s testimony that his conclusions regarding the legality of selling foreign Botox were not altered when attorneys for Allergan threatened to refer Pharmalogical for criminal prosecution. (Tr. 2316-19, 2338-39). Further, there was evidence that, in 2010, the FDA’s Division of Drug Information advised Scully that federal law prohibited the interstate shipment and importation of unapproved new drugs, including “a foreign-made version of a U.S. approved drug that has not been manufactured in accordance with FDA approval.” (See Govt. Ex. “82”). The FDA explicitly advised him that the Mirenas he sought to import came within this prohibition. Nevertheless, on this and other occasions, Scully concluded that the FDA officials “weren’t understanding what [he] was trying to speak to them about,” (Tr. 2754), and sought advice from Gertler, who reached a conclusion which was contrary to the conclusion of the FDA and omitted any reference to the FDA’s warning in his nine-page opinion letter on this subject. (Tr. 2582-83, 2757-58). Although Scully offered a legitimate explanation for consulting with Gertler in this regard — namely, that the FDA had given him inconsistent responses to the same question — a rational jury could have concluded that these circumstances presented a reasonable basis for believing that Gertler’s advice was not true. This is especially so in light of the fact that, even after reviewing Gertler’s opinion letter on the subject, Planned Parenthood returned its initial order of Mirenas, citing deficient labeling as the reason. (Tr. 1924, 2773-74). Other customers, including Advanced Women’s Healthcare, also demanded refunds for Mirenas that they purchased from Pharmalogical on account of foreign-language labeling. (Tr. 1479). Gertler was apparently unaware of this fact. (Tr. 2489, 2621, 2676). Further, the jury was entitled to' consider the evidence that packages of prescription drugs intended for delivery to Pharmalogical were, on occasion, falsely declared as “samples” having “no commercial value”; that e-mail correspondence demonstrated questionable efforts by Ozay Pharmaceuticals to successfully ship products into the country; and that some of these shipments were permanently seized at the border. In this regard, the jury was entitled to assess whether Scully reasonably believed Gertler’s advice to be true, when he admittedly received written notifications from FDA investigators that certain confiscated packages contained misbranded or unapproved drugs, and yet failed to share this information with Gert-ler. (Tr. 1957, 2511-12, 2945, 2956-57). Further, there was evidence at the trial that, in April 2010, the FDA issued a bulletin, warning doctors and pharmacies in this country about the presence on the market of a counterfeit version of the cancer drug Altuzan. (Tr. 1985-86). Despite this alert, Gertler concluded that it was “fine” to continue selling Altuzan, even though the relevant FDA bulletin was shown to the jury and states unequivocally that Altuzan “is not approved by -the FDA.” (Tr. 1987; see Govt. Ex. “73”). Perhaps the most obvious basis for Scully to doubt the truth of Gertler’s opinions is the fact that his warehouses were raided by federal agents on two separate occasions, (Tr. 1996, 2890-92, 2919), but he nevertheless received consistent advice from Gertler that his actions were not illegal. This was so, even after Gertler’s law firm prepared a legal memorandum plainly concluding that, because Pharma-logical’s products lacked the required “Rx Only” designations, “they are considered ‘misbranded’ and subject to seizure if they were to be offered for sale in the U.S,” and that “even where a drug has the identical formula, if it is not manufactured and packaged in a facility listed on the drug’s NDA [new drug application], then the drug is no[t] FDA approved and is considered an ‘unapproved new drug.’ ” (Tr. 2003-04; see Govt. Ex. “221”). Based on the foregoing, in the Court’s view, there was sufficient evidence to lead a rational jury to conclude not only that Scully failed to honestly follow the advice of his counsel, but also that he selectively chose which portions of that advice to follow in the face of objective indications that, on the whole, it was materially flawed. The jury was within its authority to rely on both of these circumstances in concluding that Scully failed to sustain his burden as to the third element of the advice of counsel defense. Based on the foregoing, to the extent that Scully seeks a judgment of acquittal as to all guilty counts on the ground that he established an advice of counsel defense, his Rule 29 motion is denied. b. As to Whether the Testimony of Geoffrey Kaiser, Esq. was Relevant or Confused the Jury The Defendant further contends that the testimony of attorney Geoffrey Kaiser was not relevant to this case and sufficiently confused the jury so as to warrant Rule 29 relief. In particular, the defense argues that Kaiser’s testimony gave the jury the wrongful impression that he was Scully’s attorney, and therefore misled the jury into believing that his advice regarding the illegality of some of Pharma-logical’s business practices was sufficient to defeat Scully’s advice of counsel defense. The Court finds that this argument lacks merit. By way of relevant background, on November 5, 2015, following the conclusion of the defense case-in-chief, the Government called Kaiser as a rebuttal witness. (Tr. 3079). Kaiser appeared in court pursuant to a Government subpoena. (Tr. 3080, 3105). Kaiser is a former federal prosecutor in the Eastern District of New York, where he served as the deputy chief in the public integrity section and chief of healthcare fraud prosecutions. (Tr. 3080-81). In this capacity, he handled matters involving the federal Food, Drug and Cosmetic Act, and led related investigations against corporate entities. (Tr. 3085-86). After the execution of the search warrant on Pharmalogical’s offices in May 2012, Lameh retained Kaiser to represent him in connection with the FDA’s ongoing investigation. (Tr. 2896). In particular, a joint defense agreement was entered into by Richard Gertler, as counsel for the corporation, namely, Pharmalogical; Peter Tomao, Esq., as counsel for Scully; and Kaiser, as counsel for Lameh. (Tr. 2000, 3081-82). Kaiser testified that the agreement “provided that the parties, although separately represented, could consult with one another, share information, exchange views and advise [sic] without losing the protection of the attorney/client privilege which each of the parties would otherwise enjoy.” (Tr. 3082). Thus, according to Kaiser, all three attorneys participating in this arrangement attended in-person meetings with Scully and Lameh, and were copied on all relevant e-mail correspondence. (Tr. 3082-84). However, Kaiser acknowledged that the joint defense agreement did not establish an attorney-client relationship between himself and Scully. (Tr. 3106-08). He also conceded that, because he was not retained until mid-2012, he had no knowledge of the legal advice that was given to Scully prior to that time. (Tr. 3111-12). Relevant here, Scully testified that, immediately after the execution of the search warrant, Pharmalogical continued selling prescription drugs that contained foreign-language labeling and lacked the required “Rx Only” designation. (Tr. 2906-07, 3034). In this regard, he testified that Gertler had advised him that it was lawful to continue operating in this way until further notice. (Tr. 2911). However, over the defense’s objection, Kaiser testified that, to the extent Phar-malogieal’s products lacked the required “Rx Only” designation or otherwise contained labeling that was not intended for the United States market, he believed they were misbranded. (Tr. 3090, 3096). He further testified that he had an “ongoing concern” about Pharmalogical’s sale of these products, and that he had “multiple communications” with Scully and Lameh about the fact that distributing unapproved or misbranded drugs was a crime. (Tr. 3090-93, 3096-98, 3100). According to Kaiser, he was unaware that Scully and Lameh were continuing to sell misbranded products after the execution of the search warrant. (Tr. 3102, 3117). In fact, during his involvement in the case, he testified that “the conversations [among the joint defense participants] were always ... that you couldn’t [sell products without the ‘Rx Only’ designation]. So the assumption was, from my perspective, was that advice was being executed. I never received information that it was being ignored.” (Tr. 3117). This is consistent with relevant correspondence between Kaiser and the other members of the joint defense agreement, which was submitted in evidence. In particular, in a June 19, 2012 e-mail, Kaiser cautions that, to the extent Pharmalogical was selling oncology drugs without the “Rx Only” designation on the packaging, they “w[ould] not be able to challenge the [FDA] agent’s claim that [the drugs] are misbranded ...” (Tr. 2006-07, 3088-89; see Govt. Ex. “222” & “230-A”). Further in response to an August 3, 2012 cease-and-desist letter from Medicis, the company that owned the exclusive distribution rights for a medical product known as Restylane in the United States, Kaiser advised the group that: “Insofar as you are in possession of a version of Resty-lane ... that is not FDA-approved for sale in the U.S., you clearly cannot sell it. We’ve talked about that issue previously.” (Tr. 2339-41, 3095-96; see Govt. Ex. “231”). Kaiser’s August 6, 2012 e-mail also stated, in relevant part, that “Medieis’s claims [ ] highlight something we have discussed many times before, and that is the importance of ensuring that the products you sell are FDA-compliant in all respects ...” (Tr. 3097-98) (emphasis supplied). Turning to the instant motion, the Court finds that Kaiser’s testimony was relevant to the issues in this case, including, but not limited to, whether Scully honestly believed Gertler’s advice regarding the legality of his business to be correct — an essential component of the advice of counsel defense. As noted above, the jury was entitled to consider evidence that Scully acted with “willful blindness” to indications that his attorney’s advice was not accurate, which necessarily includes the proof that Kaiser repeatedly voiced concerns to Scully that his actions were illegal. Further the trial record is abundantly clear that Kaiser was never Scully’s attorney, and that the joint defense agreement did not establish an attorney-client relationship between them. (Tr. 2896, 3108). In this regard, Kaiser testified unequivocally that he was not retained until mid-2012, and thus has no personal knowledge of the legal advice that was given to Scully prior to that time. (Tr. 3111-12). Under these circumstances, the Court can discern no substantial risk of jury confusion resulting from Kaiser’s testimony, and the defense does not identify any. Of note, the defense does not raise any issue with the substance or clarity of the instructions to the jury regarding the advice of counsel defense. Nor do they point to evidence in the record that the jury was, in actuality, confused. Rather, in a legal memorandum, the defense surmises that “[t]he only rational explanation” for the jury’s rejection of Scully’s advice of counsel defense “is that they failed to understand it or were confused by Kaiser’s irrelevant testimony.” Def. Br. at 14. In the Court’s view, this reasoning, lacking in evidentiary support, falls far short of the defense’s burden under Rule 29. This is particularly true in light of the discussion above, which makes clear that there was more than enough evidence adduced at trial to lead a rational jury to reject the advice of counsel defense, even without Kaiser’s testimony. Accordingly, Scully’s Rule 29 motion, to the extent that it seeks a judgment of acquittal as to all guilty counts on the basis that Geoffrey Kaiser’s testimony was irrelevant and improperly confused the jury, is denied. c. As to the Sufficiency of the Evidence Relating to Criminal Intent The Defendant also contends that the totality of the evidence adduced at trial was insufficient to establish that he acted with the intent to defraud anyone. For this proposition, the defense relies primarily upon the following exchanges' that occurred during the cross-examination of Lameh: Q: ... [Y]ou and Pharmalogical never had intentions to ever selling [sic] a fake drug, correct? A: Correct. Q: You only were in business to sell authentic drugs. Fair enough? A: Yes. Q: You never wanted to hurt anybody. Fair? A: Correct. Q: It was Pharmalogical’s policy and MDK’s general policy, that if a doctor was not satisfied with a product, and they didn’t open it, they could return it and get their money back, correct? A: Yes. Q: So you guys were not looking to rip off anyone, were you? A: Of course not. Q: You weren’t looking to defraud, give them something they didn’t want and then not let them get their money back? A: Of course not. (Tr. 2071, 2076). In the Court’s view, these isolated portions of an otherwise expansive trial record ■cannot suffice to sustain Scully’s heavy burden of overturning the jury’s verdict. In this regard, the Court notes that the twelve lines of trial transcript reproduced above are extracted from a larger record that exceeds 3,500 pages in length, 240 of which reflect Lameh’s testimony over the course of two days. (Tr. 1876-2010, 2112-2220). Thus, to the extent that the defense suggests that this limited portion of favorable testimony is representative of the totality of the evidence — or even of Lameh’s broader trial testimony — its contention is unavailing. In any event, this portion of Lameh’s testimony is substantially contradicted by the other testimony that he gave at the trial, which generally conceded that he and Scully knowingly engaged in illegal conduct designed to defraud customers, customs officials, and the FDA, all in the pursuit of financial gain. (Tr. 1915, 1926, 1931, 1965-69, 1970-72, 1984-85, 2174-75, 2177-78, 2005, 2010-11, 2014, 2181-82, 2211). In fact, it cannot be overlooked that Lameh pled guilty to charges arising from his involvement in the very same conduct that forms the basis of the current charges against Scully. (Tr. 1878-79). In the Court’s view, the apparent inconsistencies in Lameh’s trial testimony created a factual question for the jury to resolve in the first instance, and which this Court is prevented from second-guessing on a Rule 29 motion. See O’Connor, 650 F.3d at 855 (“It is the province of the jury and not of the court to determine whether a witness who may have been inaccurate, contradictory and even untruthful in some respects was nonetheless entirely credible in the essentials of his testimony”); Truman, 688 F.3d at 140 (holding that the existence of inconsistencies in a witness’s testimony is simply one “factor[ ] relevant to the weight the jury should accord to the evidence, and do[es] not justify the grant of a judgment of acquittal”). Therefore, the Court finds that the Defendant’s reliance upon these isolated portions of Lameh’s testimony is insufficient to sustain his burden on this motion. Further, in challenging the verdict, the defense relies upon Scully’s testimony that, on several occasions, he attempted to contact the FDA directly for guidance as to the legality of his business. In this regard, the defense urges the conclusion that “individuals who intend to defraud their customers and the government [] do not reach out time and again to the FDA for guidance.” Def. Br. at 15. However, the Court is not persuaded that this evidence requires a judgment of acquittal. Initially, this theory was repeatedly argued to the jury at the trial, but was ultimately rejected. For example, in his opening statement, defense counsel told the jury that “Liam himself, and Liam’s lawyers, reached out on multiple occasions to the FDA to find out if their business ideas were lawful. Ladies and gentlemen, I submit to you that the evidence will show that criminals do not reach out to the FDA to run their business ideas past them.” (Tr. 82). Again, in his closing argument, defense counsel contended that “we know that Liam Scully reached out to the FDA multiple times. This is not what criminals do, ladies and gentlemen.” (Tr. 3372). The jury apparently did not accept this premise. Rather, the jury was entitled to, and apparently did, credit the evidence indicating that Scully was knowingly engaged in the importation and distribution of mis-branded drugs well before he attempted to seek guidance from the FDA. In this regard, as noted above, the jury heard evidence that the FDA responded to Scully’s inquiries with indications that his conduct was, in fact, not legal, but that he nevertheless sought a more favorable opinion on the same subject matter from his attorney, who prepared a nine-page opinion letter omitting any reference to the FDA’s feedback. In reaching this conclusion, the Court reiterates that Scully offered a seemingly legitimate explanation for these events, namely, that he received apparently conflicting responses from the FDA, and therefore sought legal advice to obtain a definitive opinion as to the legality of his actions. However, as noted in this opinion, assessments of witness credibility are fundamentally and exclusively within the province of the jury. In this regard, the jury was entitled to evaluate the credibility of Scully’s testimony in the context of the broader trial record, and determine whether it created a reasonable doubt as to criminal intent. Viewing this evidence in the light most favorable to the Government, and drawing all inferences in the prosecution’s favor, see Temple, 447 F.3d at 136, the Court finds that, despite his apparent efforts to contact the FDA directly, the trial record as a whole could have led a rational jury to find that Scully acted with the requisite culpable mind state to sustain the challenged convictions. Accordingly, to the extent that Scully seeks a judgment of acquittal as to all guilty counts on this basis, his Rule 29 motion is denied. 3. The Arguments Directed at Individual Guilty Counts As noted above, the Defendant also challenges the sufficiency of the evidence used to convict him on certain individual counts of mail fraud; wire fraud; introducing mis-branded drugs into interstate commerce; and receiving misbranded drugs in interstate commerce and delivering them for pay (collectively, the “Fraud Statutes”). After outlining the applicable legal standards, the Court will proceed to address the merits of each individual contention in greater detail. a. The Legal Standards i. The Mail and Wire Fraud Statutes The essential elements to be proven in order to procure a conviction under the federal mail and wire fraud statutes are the same, namely: (i) a scheme to defraud victims, (ii) of money or property, (iii) through the use of the mails or wires. See Fountain v. United States, 357 F.3d 250, 255 (2d Cir.2004), cert. denied, 544 U.S. 1017, 125 S.Ct. 1968, 161 L.Ed.2d 856 (2005) (wire fraud); United States v. Walker, 191 F.3d 326, 334 (2d Cir.1999), cert. denied, 529 U.S. 1080, 120 S.Ct. 1702, 146 L.Ed.2d 506 (2000) (mail fraud). “ ‘Proof of fraudulent intent, or the specific intent to harm or defraud the victims of the scheme, is an essential component of the ‘scheme to defraud’ element’ of the mail [and wire] fraud statute[s].” United States v. Karro, 257 F.3d 112, 117 (2d Cir.2001) (quoting Walker, 191 F.3d at 334). However, it is well-settled that these statutes do not require proof that the harm contemplated by the Defendant actually materialized. See United States v. Binday, 804 F.3d 558, 574 (2d Cir.2015) (citing United States v. Novak, 443 F.3d 150, 156 (2d Cir.2006)). Stated otherwise, “[t]he government does not need to prove that ‘the scheme successfully defrauded the intended victim,’ ” only that “some actual harm or injury was contemplated by the schemer.” United States v. Abdallah, 840 F.Supp.2d 584, 608 (E.D.N.Y.2012), aff'd, 528 Fed.Appx. 79 (2d Cir.2013) (quoting United States v. Dinome, 86 F.3d 277, 283 (2d Cir.1996)) (emphasis in original). ii. The Federal Food, Drug and Cosmetic Act Relevant here, the following actions constitute violations of the federal Food, Drug and Cosmetic Act (“FDCA”): The introduction or delivery for introduction into interstate commerce of any food, drug, device, tobacco product, or cosmetic that is adulterated or mis-branded [and] The receipt in interstate commerce of any food, drug, device, tobacco product, or cosmetic that is adulterated or mis-branded, and the delivery or proffered delivery thereof for pay or otherwise. 21 U.S.C. § 331(a) & (c). A defendant is guilty of a felony violation of these provisions “if he has acted with ‘intent to defraud or mislead.’ ” Beech-Nut, 871 F.2d at 1195 (quoting 21 U.S.C. § 333(b)); see United States v. Milstein, 401 F.3d 53, 69 (2d Cir.2005) (noting that “[t]he ‘intent to defraud’ element converts conduct that would otherwise be a misdemeanor into a felony”). Similar to the mail and wire fraud statutes, the intent required to sustain a felony conviction under the FDCA does not require proof that anyone was actually misled or defrauded. See, e.g., United States v. McConnell, 14-cr-0001, 2015 WL 4633669, at *7, 2015 U.S. Dist. LEXIS 100779, at *19-*20 (W.D.Va. Aug. 3, 2015) (rejecting the defendant’s argument that his conviction under the statute was improper because his product’s purchasers were aware that the substances in question were prohibited) (citing United States v. Ellis, 326 F.3d 550, 556-57 (4th Cir.2003)). b. Application to the Facts of this Case Scully contends that the evidence used to sustain convictions against him on certain, but not all, of the counts of the superseding indictment which arose under the Fraud Statutes was legally insufficient. In this regard, he asserts a series of individualized arguments, each relating to the trial evidence pertaining to a specific customer of Pharmalogical. The Court will address these arguments in kind, i. As to the Sufficiency of the Evidence Relating to Metropolitan Pharmacy (Counts 7, 13, 24, 30, 42, 48, 59 & 65) First, the Defendant challenges the jury’s verdict as to the counts that relate to Metropolitan Pharmacy (“Metro Pharmacy”), a fictional entity created by the FDA for the purpose of making undercover online purchases of prescription drugs from MDK. (Tr. 1818-19). Relevant here, FDA Special Agent Matthew Comerford testified that, at the time of the purchases, he was conducting an investigation into Pharmalogical’s business practices; that he believed the company was selling misbranded drugs; and that he was affirmatively seeking to obtain evidence of this fact. (Tr. 1857-58). Thus, as to these transactions, the Defendant contends that Agent Comerford was not actually misled, and the evidence was therefore insufficient to sustain convictions under the Fraud Statutes. See Def. Br. at 16 (arguing that Agent Comerford “had clear expectations when placing the orders” and did so “for the sole purpose of receiving 'misbranded goods to obtain evidence [that the FDA] could use to charge Mr. Scully”). This contention is without merit. In United States v. Abdallah, 840 F.Supp.2d 584 (E.D.N.Y.2012), following a jury trial, the defendant was convicted of securities fraud, wire fraud, and conspiracy to commit both offenses. In a subsequent Rule 29 motion, the defendant argued that the evidence at trial had been insufficient to support a conviction under the wire fraud statute. In particular, the evidence had shown that a telephone conversation occurred between the defendant and a co-conspirator, in which the defendant gave the co-conspirator specific directions about how to manipulate certain stock prices and confirmed that, in exchange, he would provide a kickback. However, unknown to the defendant, at the time of the call, the co-conspirator had been apprehended by the FBI and the telephone call was being recorded. This recording supplied the basis for the wire fraud count. In his Rule 29 motion, the defendant- in Abdallah argued that this phone call could not support a conviction under the wire fraud statute because it “was not made ‘for the purpose of executing [the charged] scheme or artifice,’ but was rather made to ‘gain incriminating information’ about the defendant, since [the co-conspirator] was cooperating with the FBI at the time he made the phone call.” 840 F.Supp.2d at 608. The Court notes that this is substantially the same argument that Scully asserts in this case, namely, that Agent Comerford’s online purchases cannot support a conviction under the Fraud Statutes because he was maki