United States v. Sabean

United States Court of Appeals
For the First Circuit

No. 17-1484

UNITED STATES OF AMERICA,

Appellee,

v.

JOEL A. SABEAN, M.D.,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

[Hon. George Z. Singal, U.S. District Judge]

Before

Kayatta, Circuit Judge,
Souter, Associate Justice,
and Selya, Circuit Judge.

Alfred C. Frawley IV, with whom Thimi R. Mina, Jay P.
McCloskey, and McCloskey, Mina & Cunniff, LLC, were on brief, for
appellant.
Julia M. Lipez, Assistant United States Attorney, with whom
Halsey B. Frank, United States Attorney, and Margaret D. McGaughey,
Special Assistant United States Attorney, were on brief, for
appellee.

March 16, 2018


Hon. David H. Souter, Associate Justice (Ret.) of the Supreme
Court of the United States, sitting by designation.
 SELYA, Circuit Judge. This case, which reads like an

anthology of pain, pathos, and personal degradation, paints a grim

picture of the human condition. It intertwines allegations of an

incestuous relationship with criminal charges of tax evasion,

unlawful distribution of controlled substances, and health-care

fraud. Following a contentious trial, the jury found defendant-

appellant Joel A. Sabean guilty on all of the charged counts.

The defendant strives to convince us, through a wide-

ranging asseverational array, that the jury's verdict should not

stand. After careful consideration of a tangled record

conspicuously free from prejudicial error, we are not persuaded.

Consequently, we affirm the judgment below.

I. BACKGROUND

We sketch the relevant events and travel of the case,

reserving a fuller elaboration of the facts for our subsequent

discussion of specific issues. For this purpose, we take the facts

in the light most flattering to the jury verdict, consistent with

record support. See United States v. George, 841 F.3d 55, 59 (1st

Cir. 2016).

The defendant is a licensed physician, specializing in

dermatology, who maintained a lucrative practice in Maine for

decades. Between 2008 and 2013, the defendant sent his adult

daughter S.S., who was then a resident of Florida, between $500

and $1,500 daily. During this interval, the defendant claimed

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S.S. as a dependent on his tax returns and represented to the

government (as well as to his bookkeeper) that much of this money

was tax-deductible because it defrayed S.S.'s medical expenses.

See 26 U.S.C. § 213. For instance, the defendant stated at various

times that his daughter needed funds to cover costs associated

with temporary brain death, tumors, and amputated limbs. These

statements were demonstrably false.

The defendant never examined S.S. during the relevant

period and, in reality, S.S. never suffered from temporary brain

death, tumors, amputated limbs, or the other ailments described by

the defendant to his bookkeeper. She squandered much of her

father's treasure on drugs, gambling, and gifts for her boyfriend.

The defendant continued sending cash to his daughter

even after his wife and office manager complained that he was

"hemorrhaging money" and would be unable to afford continued

outlays. All told, the defendant sent his daughter over

$2,000,000.

There was another dimension to this strange

relationship. Between 2010 and 2014, the defendant wrote

prescriptions for the anti-depressant drugs Ambien, Lunesta, and

Alprazolam (commonly known as Xanax) and transmitted them to

pharmacies near his daughter's home. He also wrote and transmitted

to Florida pharmacies prescriptions for certain more expensive

drugs in the name of his wife Karen, who — unlike S.S. — was

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covered by health insurance. Karen, though, was bedridden and

never set foot in Florida during the relevant time period.

The mills of the law sometimes grind slow, but they grind

exceedingly fine. On October 20, 2015, a federal grand jury

sitting in the District of Maine charged the defendant, in five

counts corresponding to five different tax years, with knowingly

evading nearly $1,000,000 in federal tax liability by claiming

fraudulent medical deductions between 2009 and 2013. See 26

U.S.C. § 7201. The indictment further charged the defendant, in

fifty-two counts, with having distributed Ambien, Lunesta, and

Xanax to S.S. on fifty-two separate occasions between December 15,

2010 to January 4, 2014 outside the usual course of professional

medical practice and without legitimate medical purpose.1 See 21

U.S.C. § 841(a)(1); 21 C.F.R. § 1306.04(a). Finally, the

indictment charged the defendant, in a single count, with

committing health-care fraud by writing certain prescriptions

meant for S.S. in his wife's name between March 28, 2010 and

December 9, 2012. See 18 U.S.C. § 1347.

During elaborate pretrial skirmishing (much of which is

irrelevant here), the district court denied the defendant's motion

to sever the tax-evasion counts from the drug-distribution and

1 Some of the drug-distribution counts related to
prescriptions written in S.S.'s name, while others related to
prescriptions written in Karen's name but intended for S.S.

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health-care fraud counts. See United States v. Sabean, No. 2:15-

cr-175, 2016 WL 5477569, at *1 (D. Me. Sept. 29, 2016). So, too,

the court denied the defendant's motion in limine seeking to

exclude S.S.'s testimony regarding alleged sexual abuse.

Trial commenced on November 1, 2016 and lasted nine days

(exclusive of jury deliberations). At the close of the

government's case-in-chief and again at the close of all the

evidence, the defendant moved for judgment of acquittal. See Fed.

R. Crim. P. 29(a). The district court reserved decision on these

motions. Following jury instruction, the defendant unsuccessfully

objected to the district court's charge concerning the drug-

distribution counts. After the jury returned an across-the-board

guilty verdict, the district court acted on its previous

reservation of decision and denied judgment of acquittal. See

Fed. R. Crim. P. 29(b), (c). The court thereafter sentenced the

defendant to serve concurrent 24-month terms of immurement on the

58 counts of conviction. This timely appeal ensued.

The defendant, ably represented, assails the judgment

below on a multitude of grounds. We start with his most loudly

bruited argument, which relates to the admission of other-acts

evidence concerning the alleged sexual abuse. We then deal with

his objections to the district court's exclusion of certain

evidence. Once we have disposed of these evidentiary challenges,

we turn our attention to a miscellany of other claims.

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II. THE DISPUTED EVIDENTIARY RULINGS

We subdivide our discussion of the disputed evidentiary

rulings into two segments, dealing first with rulings admitting

evidence and then with rulings excluding evidence.

A. Other-Acts Evidence.

The defendant's flagship claim is that the district

court improvidently admitted S.S.'s testimony concerning sexual

abuse. Some context is needed to place this claim into a workable

perspective.

S.S., who was 41 years old at the time of trial,

testified that she began having intercourse with her father at

around age twelve and that they frequently had sex while she was

in high school and in the years that followed. Even after she

left Maine and moved to Florida in 2007, she regularly exchanged

emails with him detailing sexual fantasies (which they called

"lovegrams"). They also had "phone sex." While S.S. was on the

witness stand, the court admitted emails in which the defendant

referred to his daughter in terms such as "[d]earest woman who has

captivated my being," "hot chick," and "Supreme Sextress." In one

particularly lurid email, the defendant wrote "penis available,

blasting zone." In addition, S.S. testified that the defendant

often discussed the possibility of marriage with her and claimed

at one point to have procured an engagement ring.

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 The government asserts that this evidence was admissible

as other-acts evidence and was relevant to show the defendant's

motive and absence of mistake. As the government sees it, the

jury could have inferred that the defendant sent S.S. money and

wrote prescriptions for her in order to buy S.S.'s silence about

his abuse and to induce her continued participation in their

prurient communications. Relatedly, the government asserts that

the defendant committed tax evasion and health-care fraud in an

effort to offset the exorbitant costs of this scheme.

Although the district court denied the defendant's

motion in limine addressed to this testimony, it gave a carefully

worded limiting instruction once the witness embarked on this line

of testimony. The district court told the jury that the government

was offering the testimony "as evidence of what the Government

says is the defendant's motive to commit the tax evasion,

prescription fraud and health care fraud." Additionally, the court

admonished the jury not to "use evidence of a sexual relationship

or sexual contact between the defendant and his daughter to infer

that because of his character, the defendant carried out the acts

charged in this case." The jurors, the court said, were to

consider the evidence only for the limited purpose of determining

whether the defendant "had a motive or intent to commit the acts

charged in the indictment." The court made clear that the jurors

could find that the defendant "had sexual contact or a sexual

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relationship with his daughter, but still find that the Government

has not met its burden of proving that he committed one or all of

the crimes charged."

Against this backdrop, we survey the legal landscape. A

party may not introduce "[e]vidence of a crime, wrong, or other

act . . . to prove a person's character in order to show that on

a particular occasion the person acted in accordance with the

character." Fed. R. Evid. 404(b). Evidence of other acts may,

though, be admissible for certain specific purposes. See id. When

an objection is interposed, a proffer of such evidence is subject

to a threshold inquiry: the trial court must determine whether

"the finder of fact 'can reasonably conclude that the act occurred

and that the defendant was the actor.'" United States v. Raymond,

697 F.3d 32, 38 (1st Cir. 2012) (quoting United States v.

Huddleston, 485 U.S. 681, 689 (1988)). If the answer to this

threshold inquiry is in the affirmative, the court next must

determine "whether the evidence submitted 'is probative of a

material issue other than character.'" Id. (quoting Huddleston,

485 U.S. at 686). Put another way, other-acts evidence must have

"special relevance to an issue in the case," such as motive,

intent, absence of mistake, or knowledge. Id. (quoting United

States v. Varoudakis, 233 F.3d 113, 118 (2000)).

A finding of special relevance is a necessary — but not

a sufficient — precondition for the admissibility of other-acts

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evidence. Rule 404(b) "incorporates sub silentio the prophylaxis

of Federal Rule of Evidence 403." United States v. Sebaggala, 256

F.3d 59, 67 (1st Cir. 2001). It follows that even if other-acts

evidence is specially relevant, the trial court may exclude that

evidence if its probative value is substantially outweighed by

potential evils such as unfair prejudice, jury confusion, or waste

of time. See Fed. R. Evid. 403. Where, as here, objections to

other-acts evidence have been preserved, our review of rulings

admitting or excluding such evidence is for abuse of discretion.

See Raymond, 697 F.3d at 36; Varoudakis, 233 F.3d at 118.

The logical starting point for our inquiry in this case

is the district court's conclusion that the evidence was sufficient

to support a finding that the defendant sexually abused his

daughter. As we have explained, "[w]hen the relevancy of evidence

is conditioned on the establishment of a fact" — here, the fact

that the defendant sexually abused S.S. — "the offering party need

only introduce sufficient evidence to permit a reasonable jury to

find the conditional fact by a preponderance of the evidence to

establish that the evidence is relevant." United States v.

Balthazard, 360 F.3d 309, 313 (1st Cir. 2004); see United States

v. Trenkler, 61 F.3d 45, 53 (1st Cir. 1995). On this point, the

defendant argues that no sufficient foundation was laid because

S.S.'s testimony was incredible. He suggests that no reasonable

juror could have believed S.S. in light of her history of

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committing perjury and engaging in other dishonest acts, and adds

that no other basis existed on which to find that sexual abuse

transpired.

This argument is dead on arrival. With only narrow

exceptions not pertinent here, credibility determinations are left

to the wisdom of the jury. See United States v. Alicea, 205 F.3d

480, 483 (1st Cir. 2000); see also United States v. Scheffer, 523

U.S. 303, 313 (1998) (plurality opinion) (explaining that "the

jury is the lie detector"). Thus, when a jury trial is underway,

the court lacks the authority "to exclude evidence on the basis of

[its] own belief as to the persuasiveness of that evidence." Blake

v. Pellegrino, 329 F.3d 43, 47 (1st Cir. 2003). Although the jury

in this case was presented with several reasons that might have

led it to discredit S.S.'s testimony,2 it was the jury's

prerogative not to do so. After all, the jury's right to judge

the credibility of witnesses is not restricted to circumstances in

2For instance, S.S. admitted to having "had a problem with
lying [her] whole life"; she had a prior conviction for
shoplifting; and she served a six-month sentence for dissembling
to her probation officer. In addition, S.S.'s friend, Dezerra
Tsai, testified that she once heard S.S. admit to having fabricated
the sex-abuse allegations.
Relatedly, we note that in his brief, the defendant refers to
a letter that S.S. purportedly authored several weeks after trial,
in which she is alleged to have apologized for her testimony.
Because this letter was not introduced at trial, it does not
warrant consideration in connection with any of the issues
developed in the defendant's appellate briefing. See United States
v. Carrasco-De-Jesús, 589 F.3d 22, 27-28 (1st Cir. 2009).

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which the witness's testimony is flawless in every respect. See

Alicea, 205 F.3d at 483. We conclude, therefore, that S.S.'s

testimony, combined with the exhibits memorializing the salacious

father-daughter correspondence, comprised a sufficient basis for

a reasonable jury to find that the defendant had sexually abused

his daughter.

This brings us to the question of whether the other-acts

evidence has special relevance to any disputed issue in the case.

Evidence has "special relevance" when "it tends to prove a material

fact apart from a mere propensity to behave in a certain way."

United States v. Watson, 695 F.3d 159, 165 (1st Cir. 2012). A

prime example of special relevance, pertinent here, is when

evidence of other-act evidence is introduced "to complete the story

of the crime on trial by proving its immediate context of

happenings near in time and place." United States v. Goyner, 761

F.3d 157, 163 (1st Cir. 2014) (quoting United States v. D'Alora,

585 F.2d 16, 20 (1st Cir. 1978)). Such evidence may be

particularly helpful when an actor's state of mind is at issue

"and the only means of ascertaining that mental state is by drawing

inferences from conduct." Huddleston, 485 U.S. at 685.

Here, it is nose-on-the-face plain that the defendant's

state of mind was a highly material and hotly disputed issue. All

of the charged crimes required proof of scienter. See 26

U.S.C. § 7201; 21 U.S.C. § 841(a)(1); 18 U.S.C. § 1347. Moreover,

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the bedrock of the defense was that the defendant truly believed

that S.S. needed both the money and the extensive medical treatment

that he described.

In an effort to change the trajectory of the debate, the

defendant suggests that evidence of abuse was not probative of his

intent to commit the charged crimes. This suggestion relies on

the assertion that S.S. never provided direct testimony that sexual

abuse was the reason for either the cash outlays or the bogus

prescriptions; indeed, he collects snippets from the transcript in

which she "testified to the contrary." In support of this

suggestion, the defendant points out that S.S. indicated that she

had never threatened to expose the incestuous relationship if her

father stopped sending money and drugs. And at another point,

S.S. said that the cash and drugs were not meant "to keep [her]

quiet" but, rather, were meant to keep her "happy and comfortable."

This suggestion misapprehends both the record and the

law. With respect to the record, the defendant glosses over other

testimony by S.S. that contravenes his synthesis of the transcript.

By way of example, S.S. testified that there was an implied

understanding between father and daughter that he would send her

money and drugs so that she would engage in sexualized

communications with him. S.S. also testified that her father

threatened to cause her "big problems" and "cut [her] off" if she

ever revealed his sexual abuse. Fairly viewed, S.S.'s testimony

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was a mixed bag — and it is apodictic that a jury may "credit some

parts of a witness's testimony and disregard other potentially

contradictory portions." Alicea, 205 F.3d at 483.

With respect to the law, the infirmities of the

defendant's argument are even more pronounced. Criminal

defendants rarely shout their nefarious intentions from the

rooftops. Here, the government was not required to introduce

direct evidence connecting the defendant's disbursements of money

and drugs to the incestuous relationship. Circumstantial evidence

can suffice to forge such a link, and this jury had the right to

infer motive or absence of mistake based on common-sense inferences

drawn from evidence of the attendant circumstances. See, e.g.,

United States v. Cole, 631 F.3d 146, 155-56 (4th Cir. 2011); United

States v. Sampson, 980 F.2d 883, 887-88 (3d Cir. 1992).

Because our society abhors incestuous sexual abuse, the

jury reasonably could have concluded that a perpetrator would be

willing to pay a very steep price to buy the victim's silence.

The jury likewise could have inferred, as a matter of common sense,

that the defendant's desire to continue prurient communications

with his daughter provided "at least some incentive" for his

continued disbursements of cash and drugs. United States v.

Potter, 616 F.2d 384, 387-88 (9th Cir. 1979) (finding evidence

that physician had sex with patient and simultaneously prescribed

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drugs for her sufficient to support inference that sexual favors

motivated prescriptions).

Let us be perfectly clear. We recognize that the

defendant's behavior was very far from the norm. But though (or

perhaps because) that behavior was outrageous, proof of it was

necessary to paint an accurate picture of what was transpiring.

Without admission of the other-acts evidence, the jury would have

been left with an incomplete picture as to why the defendant would

funnel millions of dollars to his daughter despite warnings that

he was hemorrhaging money, why he would tell his bookkeeper that

the funds were for medical conditions that his daughter never

experienced, and why he would prescribe highly addictive drugs in

large quantities to a person with a drug habit without conducting

anything resembling a medical examination of the putative patient.

Telling the tale of this case without referring to sexual abuse

would be like telling the tale of Abraham Lincoln's assassination

at the hands of John Wilkes Booth without mentioning either the

Civil War or the Emancipation Proclamation. The jury was entitled

to the full picture, and we therefore conclude that the district

court's determination of special relevance was within the

encincture of its discretion. See Gonyer, 761 F.3d at 163

(approving admission of sex-abuse evidence without which the jury

"would have been presented with an incomplete picture" of

defendant's state of mind).

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 This conclusion does not end our odyssey. Even if the

other-acts evidence was probative and specially relevant, the

defendant says that it should have been excluded as prejudicial.

The question, though, is not prejudice simpliciter. Virtually all

evidence is meant to be prejudicial, and Rule 403 only guards

against unfair prejudice. See United States v. Winchenbach, 197

F.3d 548, 559 (1st Cir. 1999); United States v. Rodriguez-Estrada,

877 F.2d 153, 156 (1st Cir. 1989).

The Supreme Court has described unfair prejudice in

terms of "the capacity of some concededly relevant evidence to

lure the factfinder into declaring guilt on a ground different

from proof specific to the offense charged." Old Chief v. United

States, 519 U.S. 172, 180 (1997). Once a trial judge rejects a

challenge based on Rule 403 and admits other-acts evidence that is

both probative and specially relevant, appellate review is subject

to a high bar: "[o]nly rarely — and in extraordinarily compelling

circumstances — will we, from the vista of a cold appellate record,

reverse a district court's on-the-spot judgment concerning the

relative weighing of probative value and unfair effect."

Winchenbach, 197 F.3d at 559 (quoting Freeman v. Package Mach.

Co., 865 F.2d 1331, 1340 (1st Cir. 1988)). Since jurors are

presumed to abide by the trial court's directions, see Richardson

v. Marsh, 481 U.S. 200, 206 (1987), we are especially reluctant to

find that the admission of relevant evidence constitutes an abuse

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of discretion where, as here, the trial court has given "suitably

prophylactic instructions," United States v. Mehanna, 735 F.3d 32,

64 (1st Cir. 2013).

We do not gainsay that, in this case, a meaningful danger

of unfair prejudice lurked. The admission of evidence that the

defendant began sexually abusing his daughter when she was quite

young and persisted in that abuse for many years surely carried a

potential risk of inflaming the jury. Cf. United States v. Hands,

184 F.3d 1322, 1328 (11th Cir. 1999) (noting that domestic abuse

is "particularly 'likely to incite a jury to an irrational

decision'" (citation omitted)). Even so, the defendant's state of

mind was a crucial issue, and the challenged evidence was not only

relevant to that issue but also significantly probative of motive

and absence of mistake. When the weighing of relevance and unfair

prejudice results in mere equipoise, "Rule 403 tilts the balance

in favor of admission." United States v. Whitney, 524 F.3d 134,

141 (1st Cir. 2008) (quoting United States v. Rivera, 83 F.3d 542,

545 (1st Cir. 1996)). Tilting the balance in the same direction

are the cautionary instructions skillfully employed by the

district court, which mitigated any risk of unfair prejudice. See

Mehanna, 735 F.3d at 64. Considering the totality of the

circumstances and the deference due to the district court's on-

the-spot judgment, we hold that the admission of other-acts

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evidence regarding the defendant's sexual abuse of his daughter

was within its discretion.

B. Other Disputed Evidentiary Rulings.

The defendant also challenges a variety of other

evidentiary rulings. Because his objections were preserved below,

our review is for abuse of discretion. See United States v.

Walker, 665 F.3d 212, 228 (1st Cir. 2011).

1. The Audiotape. The defendant assigns error to the

district court's exclusion of an audiotape of S.S.'s 2016 testimony

before a Florida court, which contained a series of misstatements.

The audiotape would have confirmed that S.S. provided a Florida

probation officer with false documentation of her community

service and lied under oath that her son had been paralyzed as a

result of an automobile accident. It also captured S.S.'s

statement of her intention to appear as a "key witness against"

the defendant in the criminal trial. While the district court

permitted the defendant to cross-examine S.S. about this

testimony, it sustained the government's objection when the

defendant sought to introduce the audiotape itself into evidence.3

The defendant asseverates that the audiotape would have

shown — far more powerfully than cross-examination — S.S.'s "motive

3 The district court simultaneously rejected the defendant's
proffer of a transcript of the audiotape. Although we refer only
to the audiotape, our reasoning applies with equal force to the
exclusion of the transcript.

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to lie about her father" and her "pattern of lying about her family

in order to deflect blame from herself onto others." This

asseveration runs headlong into Federal Rule of Evidence 608(b),

which prohibits "the introduction of[] extrinsic evidence of

specific instances of a witness's misconduct if offered to impugn

[her] credibility." Winchenbach, 197 F.3d at 558 (emphasis

removed). The district court determined that the audiotape

comprised extrinsic evidence of particular instances of

prevarication that were probative only of S.S.'s penchant for

truthfulness. That determination fell comfortably within the

scope of the district court's discretion.

Relatedly, the defendant posits that the audiotape was

evidence relevant to material (rather than collateral) issues. In

his view, S.S.'s testimony played such an important role in the

trial that the admissions in the audiotape were "fact[s] of

consequence" and, thus, not subject to the bar constructed by Rule

608(b). This argument overlooks that the "facts" were before the

jury through cross-examination of S.S. Perhaps more importantly,

this argument reflects a misunderstanding of the applicable law.

A matter is collateral if evidence relating to it could

only have been introduced for the purpose of impeachment. See

United States v. Schuler, 458 F.3d 1148, 1155 (10th Cir. 2006).

Viewed in isolation, the contents of the audiotape had no direct

bearing on any element of a claim or defense cognizable in the

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criminal case. Rather, the audiotape was relevant only for the

limited purpose of impeaching S.S.'s character for truthfulness.

The fact that S.S.'s testimony played a significant role in the

case does not alter this reality.

The defendant assays two fallback arguments. First, he

argues that the audiotape was admissible to impeach the

government's opening statement. To be specific, the government

indicated in its opening statement, without objection, that S.S.

would disclose the defendant's sexual abuse "for the first time in

public." The audiotape, the defendant says, would have revealed

that S.S. testified about the sexual abuse publicly on an earlier

occasion.

This argument lacks force. The Evidence Rules permit

impeachment of both witnesses and out-of-court declarants whose

statements are admitted into evidence. See Fed. R. Evid. 607,

806. Without more, though, a prosecutor is neither a witness nor

a declarant, and his opening statement is not evidence. See, e.g.,

United States v. Lopez, 649 F.3d 1222, 1237 (11th Cir. 2011).

In the defendant's view, however, there is more to the

question. He argues that in this instance, the prosecutor opened

the door to rebuttal of this particular statement. But this

argument does not gain him any traction: the fact that S.S. had

previously testified concerning sexual abuse bore no relevance to

any cognizable claim or defense. And in any event, rebuttal became

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unnecessary because S.S. never adopted the prosecutor's

characterization while testifying; she did not deny having

previously testified regarding the sexual abuse.

The defendant's second fallback argument is even more of

a stretch. He suggests that the audiotape was admissible as

evidence of bias. A witness's testimony may be relevant to bias

when it pertains to her "like, dislike, or fear of a party" or

"self-interest." United States v. Abel, 469 U.S. 45, 52 (1984).

Although extrinsic evidence sometimes may be admitted to prove

bias, see id., the defendant's theory is flatly belied by the

audiotape itself, which contains no statements relevant to bias

save for S.S.'s allegation of child molestation. Since this

allegation was entirely consistent with S.S.'s protracted trial

testimony concerning past sexual abuse, it was well within the

district court's discretion to exclude it as cumulative. See

Hamling v. United States, 418 U.S. 87, 127 (1974); Fed. R. Evid.

403.

2. The $10,000,000 Check. The defendant challenges the

exclusion of testimony from a bank teller to the effect that, two

decades earlier, the defendant tried to deposit a forged

$10,000,000 check. Some additional facts are necessary to put

this claim of error into perspective.

S.S. testified that, on October 9, 1995, she gave her

father a check purporting to be "income" from an apocryphal person

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for an apocryphal business. She characterized this gift as a

"birthday gag." Over the government's objection, the district

court admitted a copy of the check into evidence. The court

nonetheless excluded as cumulative the defendant's subsequent

proffer of testimony from a bank teller who would have said that

the defendant attempted to deposit the check some four months

later.

Rule 403 authorizes exclusion of evidence when the

probative value of that evidence is substantially outweighed by

the problems caused by "needlessly presenting cumulative

evidence." Trial courts enjoy "considerable latitude" to exclude

evidence that is "admittedly relevant" but also "cumulative."

Hamling, 418 U.S. at 127.

Here, the defendant argues chiefly that the bank

teller's testimony would have evinced his "mental impairments" and

susceptibility to S.S.'s "deception." But the alleged deposit

attempt took place over a decade before the commission of any of

the charged crimes, so the bank teller's testimony had little

probative value.

In any event, the defendant introduced a myriad of other

evidence concerning his mental health, including expert testimony

from a noted psychiatrist that he exhibited symptoms suggesting a

personality or delusional disorder, which made it impossible for

him to refuse S.S.'s importunings. Seen in this light, we think

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that the district court acted within its discretion in concluding

that the probative worth of the bank teller's testimony was

substantially outweighed by the danger of needlessly presenting

cumulative evidence regarding the defendant's mental capacity.

See id.; see also Fed. R. Evid. 403.

3. The 2005 Emails. The defendant challenges the

exclusion of two emails that he transmitted to S.S. in 2005. In

these emails, the defendant complained about S.S.'s profligate

spending habits and threatened to stop sending her money. The

defendant submits that, if admitted, the emails would have shown

that he intended to dry up the flow of funds to S.S. for reasons

unrelated to sexual abuse. In this way, he says, they would have

undercut the government's theory regarding motive and absence of

mistake.

The defendant's claim of prejudicial error is untenable.

It is common ground that a declarant's out-of-court statement is

inadmissible if it is offered "to prove the truth of the matter

asserted in the statement." Fed. R. Evid. 801(c). The threats

contained in the 2005 emails were therefore inadmissible to prove

that the defendant intended to withhold funds from S.S. because of

her thriftless spending unless an exception to the hearsay bar

applies.

To this end, the defendant nonetheless insists that the

Rule 803(3) hearsay exception applies. He is mistaken.

- 22 -
 Rule 803(3) exempts from the hearsay bar statements

exhibiting a declarant's "then-existing state of mind." But the

exception is not "a sweeping endorsement of all state-of-mind

evidence." Colasanto v. Life Ins. Co. of N. Am., 100 F.3d 203,

212 (1st Cir. 1996). To be admissible, the declaration "must

'mirror a state of mind, which, in light of all the circumstances,

including proximity in time, is reasonably likely to have been the

same condition existing at the material time.'" Id. (citation

omitted); see Mut. Life Ins. Co. of N.Y. v. Hillmon, 145 U.S. 285,

294-95 (1892). In this instance, the emails were written several

years before the occurrence of the conduct underlying the charged

crimes. Given this temporal gap, the district court did not abuse

its discretion in finding the Rule 803(3) exception unavailable.

The defendant argues, in the alternative, that the

emails were admissible for a different purpose. If this argument

holds water, the hearsay bar can be avoided: as long as the

significance of an out-of-court declarant's "statement lies solely

in the fact that it was made, no issue is raised as to the truth

of anything asserted, and the statement is not hearsay." United

States v. DeCologero, 530 F.3d 36, 58 (1st Cir. 2008) (citation

omitted). Building on this foundation, the defendant suggests

that the emails were admissible to prove that he intended to cut

S.S. off financially for reasons unrelated to sexual abuse.

- 23 -
 In the end, we need not decide whether the district

court's rejection of this alternative argument was erroneous. Even

assuming arguendo that the emails could be admitted for a non-

hearsay purpose, any error was patently harmless. When, as now,

an alleged error is not of constitutional dimension, we may affirm

a conviction so long as we have "fair assurance, after pondering

all that happened without stripping the erroneous action from the

whole, that the judgment was not substantially swayed by the

error." United States v. Melvin, 730 F.3d 29, 39 (1st Cir. 2013)

(quoting United States v. Sasso, 695 F.3d 25, 29 (1st Cir. 2012)).

When analyzing harmlessness in this context, we "mull the

[evidentiary] ruling in context, giving due weight to the totality

of the relevant circumstances." United States v. Wilkerson, 251

F.3d 273, 280 (1st Cir. 2001) (citation omitted).

Because the root of the harmless error inquiry is whether

the evidence would likely have affected the outcome of the trial,

see United States v. Torres-Galindo, 206 F.3d 136, 141 (1st Cir.

2000), we focus on the net impact of the two emails. In one of

them, the defendant referenced the "180,000 dollars of after tax

money" S.S. had "pissed away." In the other, the defendant warned

S.S. that she was not "entitled to a free lunch at the family's

expense all the time" and told her not to call him about it. "If

you call," he cautioned, "Mom will know the extent of your 'abuse'

financially."

- 24 -
 In the context of this case, these statements had as

much of a tendency to inculpate the defendant as to exonerate him;

the reference to "after tax money" suggests that the defendant

knew the funds were not tax-deductible, and the use of "abuse" in

quotes can easily be read as acknowledging the leverage that S.S.

held over her father. And although the emails also can be read as

supporting the defense's theory — that the defendant was willing

to cut S.S. off regardless of whether she kept quiet about the

abuse — the fact is that he kept paying. Given this bubbling

caldron of conflicting inferences, we think it apparent that the

net impact of the evidence was likely a wash, and, therefore, its

exclusion was harmless.

III. THE REMAINING CLAIMS OF ERROR

With the disputes over evidentiary issues resolved, a

trio of claims remains. Each of these claims attacks the verdict

from a different angle. We address these claims one by one, taking

them in the order in which they arose below.

A. Severance.

The defendant maintains that the district court erred in

refusing to sever the tax-evasion counts. In a criminal case,

severance has two dimensions. One dimension is joinder: the

government may, in a single indictment, charge a defendant with

separate crimes that "are of the same or similar character, or are

based on the same act or transaction, or are connected with or

- 25 -
constitute parts of a common scheme or plan." Fed. R. Crim. P.

8(a). For this purpose, "'similar' does not mean 'identical.'"

United States v. Edgar, 82 F. 3d 499, 503 (1st Cir. 1996) (quoting

United States v. Werner, 620 F.2d 922, 928 (2d Cir. 1980)). Our

appraisal of similarity is forward-looking, not backward-looking;

we assess the similarity of the charges based on what the

government reasonably anticipated proving when the charges were

lodged, not on what a post-hoc autopsy of the trial transcript

might suggest. See id.; United States v. Natanel, 938 F.2d 302,

306 (1st Cir. 1991).

Rule 8(a) creates "a generous presumption in favor of

joinder," and we review the propriety of joinder de novo. United

States v. Monteiro, 871 F.3d 99, 107 (1st Cir. 2017). In weighing

a claim of misjoinder, we take into account factors such as

"whether the charges are laid under the same statute, whether they

involve similar victims, locations, or modes of operation, and the

time frame in which the charged conduct occurred." United States

v. Taylor, 54 F.3d 967, 973 (1st Cir. 1995).

Misjoinder is not the only basis on which a motion for

severance may be granted. Severance is also authorized under the

aegis of Federal Rule of Criminal Procedure 14. This latter rule

permits severance when a defendant makes a showing that joinder,

though compliant with the strictures of Rule 8(a), is nonetheless

so prejudicial as to deprive him of a fair trial. See United

- 26 -
States v. Richardson, 515 F. 3d 74, 81 (1st Cir. 2008). We review

the denial of a motion for severance on Rule 14 grounds for abuse

of discretion. See Taylor, 54 F.3d at 974.

In the case at hand, the defendant asserts — as he did

below — that tax-evasion charges may be joined with non-tax counts

only when the unreported income underlying the former consists of

proceeds from crimes underlying the non-tax counts. To buttress

this assertion, he points to cases such as United States v.

Randazzo, in which we recognized that "false statement claims" may

be joined with tax-evasion charges "where the tax fraud involves

failure to report specific income obtained by the false

statements." 80 F.3d 623, 627 (1st Cir. 1996); see United States

v. Yefsky, 994 F.2d 885, 895 (1st Cir. 1993) (holding that "tax

fraud and mail fraud counts could be joined because some of the

unreported income was the fruit of the mail fraud scheme").

The defendant, however, reads our case law through rose-

colored glasses, and we reject his attempt to transmogrify a

sufficient condition for the joinder of tax and non-tax charges

into a necessary condition. Here, the alleged tax-evasion and

drug-distribution offences took place in roughly the same time

frame, and the government reasonably could have anticipated when

it secured the indictment that the disposition of all of the

charges would hinge on common factual issues (including S.S.'s

health, prescription history, record of treatment, and

- 27 -
relationship with her father). This temporal and factual

commonality weighs heavily in favor of allowing joinder. See

Taylor, 54 F.3d at 973. To cinch the matter, the government had

a solid basis for anticipating that it would be able to prove that

all of the charged counts (tax evasion, drug distribution, and

health-care fraud) emanated from a single plan to conceal the

defendant's past sexual abuse and keep his daughter engaged in

salacious communications while minimizing the net cost of

providing the drugs and hush money. Given this panoply of facts,

we hold that all of the counts were lawfully joined under Rule

8(a).

The defendant's plea for severance under Rule 14 fares

no better. That plea is anchored in the notion that severance was

necessary to prevent prejudicial spillover from S.S.'s allegations

of sexual abuse. The theoretical premise on which this notion

rests is sound: severance may be appropriate when "proof that

defendant is guilty of one offense may be used to convict him of

a second offense, even though such proof would be inadmissible in

a second trial for the second offense." Richardson, 515 F.3d at

81 (quoting United States v. Jordan, 112 F.3d 14, 16 (1st Cir.

1997)).

Here, however, the conclusion that the defendant seeks

to draw from this premise does not follow. The court below found

that S.S.'s allegations of sexual abuse were relevant to all of

- 28 -
the charges laid in the indictment, and that finding cannot

plausibly be termed an abuse of discretion. Consequently, the

defendant's allegation of prejudicial spillover is without

substance. See id.

To say more about either joinder or severance would be

supererogatory. For the reasons articulated above, we conclude

that the defendant has neither rebutted the strong presumption in

favor of joinder nor mounted a compelling showing of undue

prejudice. It follows inexorably, as night follows day, that the

district court's refusal to sever the tax-evasion charges is

impervious to the defendant's onslaught.

B. Jury Instructions.

The defendant next challenges the district court's jury

instructions on the drug-distribution counts.4 This claim of error

was preserved below, and we follow a two-part framework in

reviewing preserved claims of instructional error. See Sasso, 695

F.3d at 29. Under this bifurcated framework, we afford de novo

review to questions about "whether the instructions conveyed the

essence of the applicable law," while affording review for abuse

of discretion to questions about "whether the court's choice of

language was unfairly prejudicial." Id. In this instance, the

4A copy of the relevant portion of the jury instructions is
reprinted as an appendix.

- 29 -
parties agree that de novo review obtains, and we proceed

accordingly.

When charging a jury, a district court's task is to

"furnish a set of instructions composing, in the aggregate, the

proper legal standards to be applied by lay jurors in determining

the issues that they must resolve in a particular case." United

States v. DeStefano, 59 F.3d 1, 2 (1st Cir. 1995). On appeal, we

are obliged to consider the district court's instructions in their

totality, "not in some sort of splendid isolation." United States

v. Goris, 876 F.3d 40, 48 (1st Cir. 2017).

Since the defendant's claim of instructional error

relates exclusively to the drug-distribution counts, we start by

summarizing the relevant legal standards pertaining to convictions

under the Controlled Substances Act. That Act makes it "unlawful

for any person knowingly or intentionally" to "distribute . . . a

controlled substance." 21 U.S.C. § 841(a); see United States v.

Limberopoulos, 26 F.3d 245, 249 (1st Cir. 1994). A registered

physician is exempt from this prohibition, though, if he prescribes

controlled substances in the usual course of professional

practice.5 See 21 U.S.C. § 822(b); 21 C.F.R. § 1306.04(a). This

5 The term "registered physician" is a term of art. The law
requires physicians wishing to prescribe medications that are
deemed controlled substances to register with the Attorney
General. See 21 U.S.C. § 822(a)(2); Hoxie v. Drug Enf't Admin.,
419 F.3d 477, 481 (6th Cir. 2005). It is undisputed that the
defendant was so registered.

- 30 -
exemption does not shield a physician who knowingly dispenses

controlled substances outside "the usual course of professional

treatment or . . . legitimate and authorized research." 21

C.F.R. § 1306.04(a); see United States v. Moore, 423 U.S. 122, 124

(1975). Thus, a physician violates Section 841(a) when he writes

controlled-substance prescriptions not in service of treating a

patient but, rather, in service of enabling a known drug addiction.

See United States v. Cuong, 18 F.3d 1132, 1137 (4th Cir. 1994).

In this case, the defendant trains his fire on the

district court's instructions concerning the mens rea requirement

of the drug-distribution offenses. He contends that the district

court's references to a physician's "course of professional

practice" and "standard of care" were apt to have confused the

jury, with the result that the jury could have found the defendant

guilty on the drug-distribution counts for engaging in negligent

(as opposed to intentional) misconduct.

This contention is groundless. We agree, of course,

that a physician's departure from the standard of care, without

more, is not enough to sustain a conviction under Section 841(a).

See United States v. Wexler, 522 F.3d 194, 204 (2d Cir. 2008);

United States v. Feingold, 454 F.3d 1001, 1007 (9th Cir. 2006).

We also agree that even a negligent physician is inoculated against

criminal liability under Section 841(a) as long as he acts in good

faith. See United States v. McIver, 470 F.3d 550, 559-60 (4th

- 31 -
Cir. 2006). But acts or omissions may still be relevant to the

jury's decisional calculus even if, on their own, they cannot

dictate a finding of guilt.

So it is here: although a physician's failure to adhere

to an applicable standard of care cannot, by itself, form the basis

for a conviction under Section 841(a), such a failure is undeniably

relevant to that determination. See Wexler, 522 F.3d at 204.

After all, the further that a defendant strays from accepted legal

duties, the more likely that a factfinder will find him to be in

knowing disregard of those duties. See Cheek v. United States,

498 U.S. 192, 203-04 (1991). With such a predicate in place, a

jury supportably may conclude "that the government has carried its

burden of proving knowledge." Id. "Evidence that a physician

consistently failed to follow generally recognized procedures

tends to show that in prescribing drugs he was not acting as a

healer but as a seller of wares." United States v. Alerre, 430

F.3d 681, 691 (4th Cir. 2005).

The district court's instructions hewed closely to

these principles and articulated them well. The court made

pellucid that, although facts such as a physician's failure to

meet the standard of care or to adhere to ethical standards were

relevant data points, medical negligence alone was insufficient to

ground a conviction. Rather, the government was required to prove

beyond a reasonable doubt that the defendant had written a

- 32 -
"prescription for other than a legitimate medical purpose in the

usual course of professional practice." It is axiomatic that

instructing a jury that the government must meet its burden of

proof "beyond a reasonable doubt" clarifies that a criminal, rather

than a civil, standard applies. McIver, 470 F.3d at 559.

The coup-de-grâce is that the district court lucidly

explained the government's burden for proving criminal intent. It

stressed that the government had to prove, at a minimum, that the

defendant "was aware to a high probability the prescription was

not given for a legitimate medical purpose in the usual course of

professional practice" and that the defendant "consciously and

deliberately avoided learning that fact." Cf. Global-Tech

Appliances, Inc. v. SEB S.A., 563 U.S. 754, 766 (2011) (explaining

doctrine of willful blindness).

Nor was this all. To safeguard the defendant's rights,

the court emphasized that "a sincere effort to act in accordance

with proper medical practice," even if flawed, could not undergird

a guilty verdict so long as the defendant had acted in "good

faith." This latter instruction was important. Because good faith

is a defense to criminal charges under Section 841(a) but not to

civil liability for medical malpractice, "inclusion of a good faith

instruction is . . . a plainspoken method of explaining to the

jury a critical difference between the two standards." United

- 33 -
States v. Smith, 573 F.3d 639, 650 (8th Cir. 2009) (quoting McIver,

470 F.3d at 560).

The defendant has one last shot in his sling. He notes

that he proposed alternative language, spurned by the district

court, which would have better illustrated the distinction between

criminal distribution of drugs and medical malpractice. This

observation goes nowhere. Although a trial court is required to

convey the proper legal standards in its jury instructions, its

word choices as among acceptable formulations are largely

discretionary. See DeStefano, 59 F. 3d at 2; see also United

States v. Sampson, 486 F.3d 13, 38 (1st Cir. 2007) (holding that

court was not obliged to "parrot [defendant's] preferred wording

in its jury instructions"). On appeal, the issue is not whether

the district court's choice of phrase was ideal but, rather,

whether "taking the charge as a whole, the instructions adequately

illuminate[d] the law applicable to the controlling issues in the

case without unduly complicating matters or misleading the jury."

DeStefano, 59 F.3d at 3 (internal citations omitted). The court's

charge in this case passes this test with flying colors.

That ends this aspect of the matter. The luminously

clear language adopted by the district court belies the defendant's

suggestion that the district court failed to convey the proper

mens rea requirement to the jury. Viewing the jury instructions

as a whole, we conclude that the district court adequately

- 34 -
elucidated the distinctions between intentional and negligent

misconduct. Accordingly, we reject the defendant's claim of

instructional error.

C. Judgment as a Matter of Law.

We need not tarry over the defendant's final argument,

which calumnizes the district court's denial of his motions for

judgment of acquittal on the drug-distribution charges. In

approaching this argument, we are mindful that we review the denial

of a motion for judgment of acquittal de novo. See George, 841

F.3d at 61. For this purpose, we evaluate whether, after

considering the evidence in the light most favorable to the

government and drawing all reasonable inferences to its behoof, a

rational jury could conclude that the government proved all of the

essential elements of the charged crimes beyond a reasonable doubt.

See id.; United States v. Chiaradio, 684 F.3d 265, 281 (1st Cir.

2012). "To uphold a conviction, the court need not believe that

no verdict other than a guilty verdict could sensibly be reached,

but must only satisfy itself that the guilty verdict finds support

in 'a plausible rendition of the record.'" United States v.

Williams, 717 F.3d 35, 38 (1st Cir. 2013) (quoting United States

v. Echeverri, 982 F.2d 675, 677 (1st Cir. 1993)).

The defendant does not challenge the sufficiency of the

evidence with respect to the health-care fraud count — a count

that addressed the prescriptions fraudulently written in his

- 35 -
wife's name. Rather, he limits his sufficiency challenge to the

drug-distribution counts relating to the prescriptions written in

S.S.'s name. With respect to those counts, the government had to

establish beyond a reasonable doubt that the defendant "knowingly

prescribed a controlled substance outside the usual course of

professional medical practice and without a legitimate medical

purpose." United States v. Kohli, 847 F.3d 483, 489 (7th Cir.

2017); see 21 U.S.C. § 841(a)(1); 21 C.F.R. § 1306.04(a). The

defendant does not dispute that Ambien, Lunesta, and Xanax are

Schedule IV controlled substances, nor does he dispute that he was

aware of their status as such. Even so, he contends that a rational

jury could not have found that he wrote the prescriptions in S.S.'s

name for illegitimate purposes.

This contention elevates hope over reason. There is no

pat formula describing what proof is required to ground a finding

that a defendant acted outside the usual course of professional

practice. See United States v. Singh, 54 F.3d 1182, 1187 (4th

Cir. 1995); United States v. August, 984 F.2d 705, 713 (6th Cir.

1992). Rather, inquiring courts must approach the issue on a case-

by-case basis and sift the evidence in a given case to determine

whether a specific set of facts will support a guilty verdict.

See Singh, 54 F.3d at 1187. In conducting this tamisage, testimony

from a medical or pharmacological expert may be helpful — but such

expert testimony is not a sine qua non to a finding of guilt. See

- 36 -
United States v. Elder, 682 F.3d 1065, 1070 (8th Cir. 2012)

(holding that in such a case the jury may also base a guilty

verdict on lay testimony concerning the facts and circumstances

relating to the prescriptions); United States v. Pellman, 668 F.3d

918, 924 (7th Cir. 2012) (similar).

Jurors, of course, may draw on their everyday

experiences, and they can be expected to have some familiarity

with how doctors care for patients. It follows, we think, that

jurors may infer bad faith from conduct that is commonly understood

to be plainly unprofessional. For instance, a physician's

prescription of an addictive drug without any physical examination

may provide support for an inference of bad faith. See Moore, 423

U.S. at 142-43; United States v. Johnson, 71 F.3d 539, 542 (6th

Cir. 1995). Similarly, a physician's prescription of controlled

substances to a person, knowing of that person's drug addiction,

also may be probative of bad faith. See Kohli, 847 F.3d at 490;

see also United States v. Hooker, 541 F.2d 300, 305 (1st Cir. 1976)

(affirming conviction of physician who "knew the drugs were not to

be used for therapeutic or medical purposes" (citation omitted)).

So, too, a physician's failure to maintain adequate patient records

when prescribing addictive drugs may be probative of bad faith.

See Elder, 682 F.3d at 1071.

In this case, the record reflects several badges of bad

faith. The defendant prescribed a surfeit of highly addictive

- 37 -
drugs even though he never examined S.S. during the relevant time

frame and knew of her history of drug abuse. Moreover, the trial

transcript contains no hint that the defendant ever maintained

records of S.S.'s treatment. Even more damning, the government's

expert, Dr. Gary Hatfield, testified that the prescriptions at

issue fell outside the ethical boundaries of patient care.6 Last

— but surely not least — the jury reasonably could have inferred

(as explained supra) that the defendant prescribed the drugs in

order to buy S.S.'s silence and her continued participation in

sexualized communications, and not for any legitimate medical

purpose.

In another effort to disparage the sufficiency of the

evidence, the defendant claims that he suffered from a personality

6 Among other things, Dr. Hatfield testified that, in
accordance with standard medical practice, only a physician
treating a patient locally should prescribe addictive drugs on a
routine basis. He also vouchsafed that physicians should not treat
family members in non-emergency situations. Finally, he offered
his opinion that a dermatologist lacks the necessary
qualifications to write prescriptions for anti-anxiety and anti-
depressant drugs on a long-term basis.
To be sure, the defendant attempts to debunk the probative
value of Dr. Hatfield's testimony because that testimony was not
based on a review of S.S.'s patient files and, therefore, the
witness was in no position to second-guess the defendant's medical
judgment. This is magical thinking: where, as here, there is no
evidence that the physician-defendant kept any records relating to
the patient, that vacuum "cast[s] serious doubt on whether any
legitimate doctor-patient relationships existed." Elder, 682 F.3d
at 1071. The defendant's thesis, if accepted, would have the
perverse consequence of rewarding unscrupulous physicians who
avoid leaving a paper trail.

- 38 -
disorder that prevented him from resisting S.S.'s importunings.

Refined to bare essence, this claim boils down to an invitation

that we weigh conflicting state-of-mind evidence differently than

the jury chose to do. We must decline the invitation: since the

jury's determination that the defendant engaged in intentional

misconduct is amply supported by a plausible reading of the record,

we must honor that determination. See Williams, 717 F.3d at 38.

We summarize succinctly. Congress gave the defendant

the authority to distribute dangerous and addictive drugs. With

that grant of authority, Congress also gave "him the responsibility

to distribute them wisely within the course of his medical

practice." Singh, 54 F.3d at 1189. On the ugly facts of this

case, the jury reasonably could have inferred — as this jury did

— that the defendant abused this grant of authority and that his

conduct fell so far below professional standards that his actions

must have been driven by illegitimate purposes. Consequently, the

evidence was sufficient to sustain his conviction on the challenged

drug-distribution counts.

IV. CONCLUSION

We need go no further.7 The grim picture, fully

developed, reveals that the defendant was fairly tried and lawfully

7
In his appellate briefs, the defendant adverts to a
smattering of other issues. Without exception, those issues are
insufficiently developed, patently meritless, or both. None of
them warrants any extended discussion here.

- 39 -
convicted. For the reasons elucidated above, the judgment of the

district court is

Affirmed.

- 40 -
 APPENDIX
We set forth here the portion of the district court's

jury instructions concerning Counts 6 through 57, unlawful

distribution of a controlled substance. See 21 U.S.C. § 841(a)(1);

21 C.F.R. § 1306.04(a).

- 41 -
Case 2:15-cr-00175-GZS Document 241 Filed 08/03/17 Page 93 of 141 PageID #: 5169
1599

1

2

3

4

5

6

7

8

9

10

11

12

13 Counts 6 through 57, unlawful distribution of a

14 controlled substance. In Counts 6 through 57, the

15 Government alleges that on 51 separate occasions, Dr.

16 Sabean provided prescriptions for controlled substances

17 for other than legitimate medical purposes outside the

18 usual course of professional practice.

19 For you to find the defendant guilty of any of

20 these charges, you must be satisfied that the

21 Government has proven each of the following things

22 beyond a reasonable doubt:

23 First, that on or about the date alleged in the

24 count, the charge, the defendant distributed a

25 controlled substance by providing a prescription for

- 42 -
Case 2:15-cr-00175-GZS Document 241 Filed 08/03/17 Page 94 of 141 PageID #: 5170
1600

1 that controlled substance.

2 Second, that the prescription was not given for a

3 legitimate medical purpose in the usual course of

4 professional practice; and

5 Third, that he did it knowingly and intentionally.

6 For purposes of these instructions, I instruct you

7 that Ambien, Alprazolam and Lunesta are all controlled

8 substances under federal law.

9 To "distribute" means to deliver a controlled

10 substance to another person with or without any

11 financial interest in the transaction. The Government

12 does not have to prove that the defendant distributed

13 the controlled substance directly. Rather, a properly

14 licensed medical practitioner who gives somebody a

15 prescription for a controlled substance has distributed

16 a controlled substance in violation of federal law if

17 he issues the prescription for other than a legitimate

18 medical purpose outside the usual course of

19 professional practice. The prescription is enough if

20 it meets the rest of the criteria.

21 A controlled substance is prescribed by a

22 physician for a legitimate medical purpose in the usual

23 course of professional practice if the substance is

24 prescribed by him in good faith as part of his medical

25 treatment of a patient.

- 43 -
Case 2:15-cr-00175-GZS Document 241 Filed 08/03/17 Page 95 of 141 PageID #: 5171
1601

1 Good faith in this context means the honest

2 exercise of professional judgment as to the patient's

3 needs. It also means the defendant made a sincere

4 effort to act in accordance with proper medical

5 practice given the accepted standards in the United

6 States at the time the doctor acted.

7 In determining whether or not Dr. Sabean acted in

8 good faith, you may consider all of the evidence in

9 this case which relates to that conduct. This includes

10 evidence regarding ethical standards and the standard

11 of care. However, I caution you that this is not a

12 civil case involving medical negligence for which a

13 person may recover monetary damages. Here we're

14 talking about whether the evidence establishes beyond a

15 reasonable doubt that the physician -- that violated

16 his obligation under federal law to prescribe a

17 controlled substance for a legitimate medical purpose

18 in the course of professional practice.

19 Now, as used in this instruction, the word

20 "knowingly" means the act was done knowingly and

21 intentionally and not by mistake or accident. In

22 deciding whether the defendant acted knowingly, you may

23 infer that the defendant had knowledge of a fact if you

24 find that he deliberately closed his eyes to a fact

25 that otherwise would have been obvious to him. You

- 44 -
Case 2:15-cr-00175-GZS Document 241 Filed 08/03/17 Page 96 of 141 PageID #: 5172
1602

1 remember I gave you this earlier on a different charge.

2 Same thing applies here.

3 In order to infer knowledge, you must find that

4 two things have been established. First, the defendant

5 was aware to a high probability the prescription was

6 not given for a legitimate medical purpose in the usual

7 course of professional practice; second, that the

8 defendant consciously and deliberately avoided learning

9 that fact; that is to say, he willfully made himself

10 blind to that fact. It's entirely up to you to decide

11 whether he deliberately closed his eyes to this fact

12 and, if so, what inference, if any, should be drawn.

13 However, it's important to bear in mind, again,

14 that mere negligence, recklessness or mistake in

15 failing to learn a fact is not enough. There must be a

16 deliberate effort to remain ignorant of the fact.

17 In this case, again, evidence has been presented

18 that the defendant suffered from an abnormal mental

19 condition. It's for you to decide whether the

20 defendant, in fact, had this abnormal mental condition.

21 If you find that he suffered from such a mental

22 condition, you may consider whether the condition is

23 inconsistent with acting knowingly.

24 If, after considering all of the evidence related

25 to defendant's abnormal mental condition, together with

- 45 -
Case 2:15-cr-00175-GZS Document 241 Filed 08/03/17 Page 97 of 141 PageID #: 5173
1603

1 all the other evidence, you have a reasonable doubt

2 that he acted knowingly you should find the defendant

3 not guilty.

4 I remind you, again, that it is the Government's

5 burden to prove all of the elements of each charge

6 beyond a reasonable doubt. If you have a reasonable

7 doubt as to whether the defendant knowingly issued a

8 particular prescription for other than a legitimate

9 medical purpose in the usual course of professional

10 practice, you must find the defendant not guilty on

11 that particular count.

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