UNITED STATES OF AMERICA, Plaintiff - Appellee, v. NABEEL AZIZ KHAN, a/k/a Sonny, a/k/a Nabeel Aziz Kahn, Defendant - Appellant. UNITED STATES OF AMERICA, Plaintiff - Appellee, v. SHAKEEL KAHN, Defendant - Appellant.
Nos. 19-8051 & 19-8054
United States Court of Appeals for the Tenth Circuit
February 25, 2021
PUBLISH. D.C. Nos. 2:17-CR-00029-ABJ-4 & 2:17-CR-00029-ABJ-1. Christopher M. Wolpert, Clerk of Court.
Mark Baker (Rebekah A. Gallegos, with him on the briefs), Peifer, Hanson, Mullins & Baker, P.A., Albuquerque, New Mexico, appearing for Appellant Nabeel Aziz Khan.
Beau B. Brindley (Blair T. Westover, with him on the briefs), Chicago, Illinois, appearing for Appellant Shakeel Kahn.
Stephanie I. Sprecher, Assistant United States Attorney (Mark A. Klaassen, United States Attorney; Stephanie A. Hambrick and David A. Kubichek Assistant United States Attorneys, with her on the briefs), Office of the United States Attorney for the District of Wyoming, Casper, Wyoming, appearing for Appellee.
Before BRISCOE, MATHESON, and CARSON, Circuit Judges.
Defendant Nabeel Aziz Khan (“Nabeel“) and his brother, Defendant Dr. Shakeel Kahn (“Dr. Kahn,” collectively “Defendants“),1 challenge their drug trafficking and money laundering convictions following a jury trial in the United States District Court for the District of Wyoming. Defendants were tried together; they appeal separately. Because their appeals raise several overlapping issues, we address both appeals in this opinion.
We conclude that the search of Dr. Kahn’s Arizona residence was proper. The magistrate judge who issued thе warrant had a substantial basis for concluding that the affidavit in support of the warrant established probable cause. Further, the
disjunctive, not conjunctive. Nabeel’s challenge to the district court’s good faith instruction falls victim to forfeiture as he raises a different theory on appeal than he presented to the district court. The district court’s good faith instruction correctly stated the law as to Dr. Kahn because “good faith” is not a defense as to mens rea, but rather is a defense as to the lawfulness of a prescription. The district court’s intent instruction did not burden Dr. Kahn’s right to testify on his own behalf because it did not direct the jury on how to weigh Dr. Kahn’s testimony. The evidence was sufficient to sustain Nabeel’s conviction because the evidence shows Nabeel knew Dr. Kahn’s prescriptions were unlawful. And finally, the objectionable testimony identified by Dr. Kahn in his motion for a new trial was inconsequential in light of the overwhelming evidencе of guilt.2 Accordingly, exercising jurisdiction pursuant to
I
In 2008, Dr. Kahn started a medical practice in Ft. Mohave, Arizona. Later that year, Nabeel arrived in Arizona and began assisting with managing Dr. Kahn’s practice. Nabeel’s responsibilities included checking patients in, taking their vitals such as blood pressure or body weight, and processing their payments.
After Nabeel’s arrival, Dr. Kahn’s practice shifted towards pain management. Dr. Kahn regularly prescribed patients various controlled substances, including
oxycodone, alprazolam, and carisoprodol. As time went on, Dr. Kahn spent less time with patients, and the patients he did see were almost exclusively for pain management. The prescriptions he wrote aligned closely with what patients were able to pay, rather than the patients’ medical need; when patients were prescribed more pills, Dr. Kahn charged more for his medical services, and when patients could not afford the price of the prescription, Dr. Kahn prescribed fewer pills, or withheld a prescription entirely. The price of prescriptions also closely tracked the “street price” of the pills, which Dr. Kahn often discussed with patients. In addition to shifting towards pain management, Dr. Kahn’s practice also shifted to a primarily “cash-only” basis, although he also accepted payment in personal property, including firearms.
After a patient died, Dr. Kahn commented “[s]he was probably selling her prescriptions for illegal drugs.” App., Vol. VI at 2573.3 In fact, many of Dr. Kahn’s patients sold pills so they could afford their prescriptions. See, e.g., id. at 2566, 3559. Nabeel also spoke with at least one patient about a TV news report that described patients who illegally sold their prescription medication.
In 2013, Nabeel helped Dr. Kahn draft a “drug addiction statement,” which patients were required to sign. By signing the drug addiction statement, patients swore that Dr. Kahn was not a “drug dealer,” that they were not “addicts,” and that they
civil or criminal action brought against Dr. Kahn, or his officers and agents, as a result of any action taken by the patient. See id., Suppl. Vol. I at 134; id., Vol. VI at 4461. At trial, an expert witness for the government opined that Defendants’ “drug addiction statement” was neither an “appropriate” nor “acceptable” way to advise a patient. Id., Vol. VI at 1418.
Beginning in late 2012, pharmacies in the Ft. Mohave area began refusing to fill prescriptions issued by Dr. Kahn. In 2015, Dr. Kahn opened а second practice in Casper, Wyoming. During that time, Dr. Kahn continued to travel to Arizona to see patients about once per month; other patients travelled to Wyoming to see Dr. Kahn. Nabeel also met patients in parking lots to exchange their prescriptions for cash. Dr. Kahn maintained offices and residences in both Arizona and Wyoming during this time, although he primarily resided in his Wyoming residence. Nabeel primarily resided at Dr. Kahn’s Arizona residence. Nabeel also acted as office manager for the Arizona office. Dr. Kahn’s wife, Lyn Kahn, acted as office manager for the Wyoming office. As part of her role as office manager, Lyn Kahn forwarded calls from the Wyoming office to her cell phone to schedule appointments and arrange payments.
In 2016, in the course of investigating Dr. Kahn’s prescribing practices, the government intercepted a call between Dr. Kahn and Lyn Kahn. During that call, Dr. Kahn, while cleaning his Wyoming office, indicated that he would bring some patient files to his Wyoming residence. Pursuant to a warrant, officers searched Dr. Kahn’s Arizona residence, his Wyoming residence, and “Vape World,” a Wyoming business
owned by Dr. Kahn and Lyn Kahn. In searching Dr. Kahn’s Arizona residence, offiсers seized patient files pursuant to the warrant; they also seized U.S. currency, firearms, and automobiles, although those items were not listed on the warrant as items to be seized.
Defendants and Lyn Kahn were charged in a 23-count indictment, alleging, among other charges, that the Defendants and Lyn Kahn conspired to dispense and distribute controlled substances resulting in death in violation of
Defendants moved to suppress evidence gathered from the searches of Dr. Kahn’s Arizona residence, his Wyoming residence, and Vape World. The district court denied that motion, except that it suppressed the seizure of any automobiles.
During the trial, a witness for the government, on direct examination, referred to Dr. Kahn being in jail. Dr. Kahn objected and moved for a mistrial. The district court denied the motion from the bench, and instead offered a curative instruction. The district court acknowledged, however, that it was “not sure” that its instruction would cure the prejudice caused by the witness’s testimony. Id., Vol. VI at 3858.
Defendants also objected to the district court’s jury instructions regarding liability under
district court denied those objections. The jury returned a verdict of guilty on all counts, except that it acquitted Nabeel of causing the death of one of Dr. Kahn’s patients. Dr. Kahn filed a
II
A. The Search of the Arizona Residence and the Resulting Seizures Did Not Violate the Fourth Amendment
Both Defendants challenge the search of Dr. Kahn’s Arizona residence, and the resulting seizures of U.S. currency and firearms not identified in the warrant. The government responds that the issue is waived through inadequate briefing and is without merit because the search was supported by probable cause, and the seizures were permitted under the plain view doctrine.
“When reviewing a motion to suppress, we view the evidence in the light most favorable to the government, accept the district court’s findings of fact unless they are clearly erroneous, and review de novo the ultimate question of reasonableness under the
(10th Cir. 2005) (review of magistrate judge’s probable cause finding is “very deferential“).
The warrant in question was issued by a magistrate judge for the District of Arizona. See App., Vol. III at 132. The warrant permitted seizure of financial and business records, electronic media, appointment books and schedules, controlled substances, and patient records for fifty-one specific patients. Id. at 134–36. The warrant did not include U.S. currency or firearms as items to be seized.
Drug Enforcement Agency (“DEA“) Special Agent Brett Patterson authored an affidavit in support of the warrant. Special Agent Patterson had extensive experience and knowledge “of the methods used by drug traffickers to import illegal drugs from Mexico, store them in cities in border states, distribute them in those areas to local buyers or buyers from out-of-state, transport them to other parts of the United States for distribution, and collect and launder drug proceeds.” Id. at 144. In his experience investigating “high-level narcotics trafficking organizations based in Phoenix, Arizona,” Speсial Agent Patterson learned “that narcotic traffickers frequently maintain at their residence and businesses, books and records listing narcotic suppliers and purchasers, and similar books and records documenting those narcotic transactions.” Id. But Special Agent Patterson did not attest to any specific expertise in investigating physicians accused of issuing unlawful prescriptions.
Special Agent Patterson identified “numerous red flags” in Dr. Kahn’s prescribing behavior, including “extremely high dosage amounts, patients traveling from out of state, multiple patients from the same household receiving controlled
substance prescriptions, lack of individualized therapy, early refills, dangerous drug combinations and overlapping controlled substance prescriptions with Dr. Kahn’s Arizona and Wyoming DEA registrations being utilized.” Id. at 153–54. All fifty-one patients whose records were sought fell within that “pattern of suspicious prescriptions.” Id. at 164. Only eight of those patients, however, were discussed with any specificity in the affidavit.
In another intercepted call, Lyn Kahn informed a patient that Dr. Kahn travelled to Arizona once a month to practice medicine. Dr. Kahn kept a medical office in Arizona, with a sign reading “Shakeel Kahn, MD. By appointment only.” Id., Vol. III at 160. The Arizona medical office had a furnished waiting room and was current on its rent. Lyn Kahn also resided at the Arizona residence in October 2016, and she forwarded phone calls from the Wyoming medical office to her cellular telephone to “schedule appointments and arrange payments and money transfers.” Id. at 159.
In one such call, occurring when Lyn Kahn resided at the Arizona residence, a patient asked Lyn Kahn if he should send money through Western Union for a prescription pickup. The patient also told Lyn Kahn that he would be bringing a new “client.” Id. at 161. Lyn Kahn informed the patient that he would have to pay extra for a pickup on a Saturday, to which the patient replied that he would do whatever Dr. Kahn and Lyn Kahn wanted regarding the money. Special Agent Patterson attested that this call “demonstrates the exploitation of [Dr. Kahn’s] position for profit and the cash for prescription scheme being conducted by Dr. Kahn.” Id.
Special Agent Patterson opined that, due to the cash nature of Dr. Kahn’s practice, Dr. Kahn “may utilize a safe to secure bulk cash at [the Arizona residence].” Id. at 150. Special Agent Patterson based his opinion on an intercepted call in which Dr. Kahn told Lyn Kahn that he needed to get a safe out of a store [Vape World] in Wyoming and bring it home. Special Agent Patterson also attested that Dr. Kahn had likely received over $3,000,000 for issuing prescriptions. Id. at 162.
When executing the warrant at the Arizona residence, officers discovered and seized approximately $1,000,000 in U.S. currency, over forty firearms, and at least one automobile.4 Two safes were searched. Officers discovered the currency in
envelopes in one or both safes which Nabeel either opened voluntarily or provided access to the safe’s combination. The firearms were scattered throughout the Arizona residence. Officers alsо discovered several different forms of identification; some had Nabeel’s name, but someone else’s picture, or Nabeel’s picture but another name. During the execution of the warrant, Special Agent Patterson spoke with Nabeel. Nabeel informed Special Agent Patterson that the firearms belonged to him, that they were registered to Dr. Kahn, and that Nabeel was “not allowed”
1. We Decline to Find a Waiver Based on Inadequate Briefing
The government asserts that Defendants have waived their suppression arguments through inadequate briefing because Defendants failed to cite to the trial transcript. See
we could not “even attempt to assess the merits of [appellant’s] argument“). Accordingly, we exercise our discretion in overlooking any waiver based on inadequate briefing and proceed to the merits. See United States v. Mullikin, 758 F.3d 1209, 1211 n.3 (10th Cir. 2014) (declining to determine whether argument was waived, where any error was harmless).
2. Special Agent Patterson’s Affidavit Established an Adequate Nexus between the Arizona Residence and Evidence of a Crime
Both Defendants challenge whether the government established a nexus between the Arizona residence and evidence of a crime. Defendants assert that Special Agent Patterson lacked expertise in investigating medical practitioners suspected of unlawfully prescribing medication, and that the government had insufficient reasons to suspect Dr. Kahn stored medical or financial records at the Arizona residence.
“Probable cause undoubtedly requires a nexus between suspected criminal activity and the place to be searched.” United States v. Danhauer, 229 F.3d 1002, 1006 (10th Cir. 2000). “Whether a sufficient nexus has been established between a defendant’s suspected criminal activity and his residence . . . necessarily depends uрon the facts of each case.” Biglow, 562 F.3d at 1279. “Certain non-exhaustive factors relevant to our nexus analysis include (1) the type of crime at issue, (2) the extent of a suspect’s opportunity for concealment, (3) the nature of the evidence sought, and (4) all reasonable inferences as to where a criminal would likely keep
such evidence.” Id. Although neither “hard evidence” nor “personal knowledge of illegal activity” are required to demonstrate an adequate nexus, an affidavit must demonstrate “circumstances which would warrant a person of reasonable caution in the belief that the articles sought are at a particular place.” Id. (internal quotations omitted).
Here, the magistrate judge’s probable cause finding to search the Arizona residence is supported by a substantial basis. Specifically, the Arizona residence is tied to Defendants’ suspected drug trafficking in several ways: Dr. Kahn transported medical records from his Wyoming office to his Wyoming residence, he regularly travelled to Arizona to practice medicine, and he maintained an office and residence in Arizona. The involvement of Dr. Kahn’s wife, Lyn, further ties the Arizona residence to the Defendants’ illegal drug activity. Lyn Kahn resided at the Arizona rеsidence for a period, received calls forwarded
Defendants raise several objections to the magistrate judge’s nexus determination, none of which are availing. Although Defendants show that the magistrate judge could have reached a different conclusion, they do not show that the magistrate judge’s probable cause determination lacked a “substantial basis.” Id. at 1281. For example, Defendants assert that the magistrate judge could have distinguished Special Agent Patterson’s expertisе with a “standard drug trafficking case” from “a case involving a doctor accused of prescribing outside the scope of professional practice.” Dr. Kahn’s Br. at 21; see also Nabeel’s Br. at 42. Yet, even assuming Special Agent Patterson’s opinion is entitled to no weight, “[a]dditional evidence connecting a defendant’s suspected activity to his residence may also take the form of inferences a magistrate judge draws from the [g]overnment’s evidence.” Biglow, 562 F.3d at 1280 (internal quotation marks omitted). Here, such an inference is supported by the intercepted call in which Dr. Kahn indicated he was going to bring patient files from his Wyoming office to his Wyoming residence.
Defendants also assert that the intercepted call only showed that Dr. Kahn brought records to his Wyoming residence, and only “on one occasion” while cleaning his office. Dr. Kahn’s Br. at 19; Nabeel’s Br. at 43. Defendants contrast the Wyoming residence with the Arizona residence, which they describe as a “secondary residence at which there is no reason to believe [Dr. Kahn] spen[t] any significant time.” Dr. Kahn’s Br. at 21; see also Nabeel’s Br. at 42 (“Dr. Kahn had moved to Wyoming more than a year before the search [of the Arizona residence].“). Yet, Dr. Kаhn regularly traveled from Wyoming to Arizona to see patients, where he
maintained a medical office. Thus, given the transient nature of Dr. Kahn’s practice between his offices and homes in Wyoming and Arizona, the magistrate judge could have concluded that Dr. Kahn brought records to his Arizona residence as he had in Wyoming. Further, Lyn Kahn resided at the Arizona residence in October 2016 and used her cellular phone to schedule appointments and arrange payments. Thus, the magistrate judge could also have concluded that Lyn Kahn, a co-conspirator, also kept records at the Arizona residence. Even considering Defendants’ counterarguments collectively, the magistrate judge’s probable cause finding is supported by a substantial basis and may not be disturbed under our “very deferential” review. Riccardi, 405 F.3d at 860.
3. Special Agent Patterson’s Affidavit Established Probable Cause as to All Patients Included in the Warrant
Dr. Kahn also asserts that, even if a nexus were established to support a warrant to search the Arizona residence, Special Agent Patterson’s affidavit only established probable cause as to the eight patients explicitly described, but did not provide probable cause to search for аnd seize the records of all fifty-one patients.
Those red flags were identified by reviewing computerized “prescription drug monitoring program” information in both Arizona and Wyoming. Id. at 153. Accordingly, the magistrate judge could have concluded that the eight patients explicitly described in the affidavit were illustrative of the remaining “red flagged” patients, and thereby provided a “substantial basis” for the magistrate judge’s probable cause determination as regards the more generally described patients. Biglow, 562 F.3d at 1281.
4. The Seizure of U.S. Currency and Firearms Was Permitted Under the Plain View Doctrine
The government concedes that the Arizona warrant did not authorize seizure of U.S. currency, firearms, or automobiles. The government asserts that the U.S. currency and firearms were prоperly seized under the plain view doctrine. Defendants counter that the plain view doctrine does not apply here because further investigation was required to establish probable cause. Defendants also argue that the plain view doctrine cannot apply because the discovery of those items was not “inadvertent.” See Dr. Kahn’s Br. at 31.
“The plain view doctrine allows a law enforcement officer to seize evidence of a crime, without violating the
right of access to the object.” United States v. Angelos, 433 F.3d 738, 747 (10th Cir. 2006) (internal quotation marks omitted).
Contrary to Defendants’ assertion, there is no inadvertent discovery requirement under the plain view doctrine. Defendants rely on language from Justice Stewart’s plurality opinion in Coolidge v. New Hampshire, 403 U.S. 443 (1971). There, Justice Stewart wrote: “If the initial intrusion is bottomed upon a warrant that fails to mention a particular object, though the police know its location and intend to seize it, then there is a violation of the express constitutional requirement of ‘Warrants . . . particularly describing . . . [the] things to be seized.’” Id. at 471. The Supreme Court has since expressly rejected Justice Stewart’s reasoning in Coolidge and the “inadvertent discovery requirement.” Horton v. California, 496 U.S. 128, 138–39 (1990); see also id. at 141 (“If the interest in privacy has been invaded, the violation must have occurred before the object came into plain view and there is no need for an inadvertence limitation on seizures to condemn it.“). Thus, under current Supreme Court precedent an officer may, if on the premises pursuant to a valid warrant or under an exception of the warrant requirement, seize items which immediately appear to be evidence or contraband of a crime. See United States v. Le, 173 F.3d 1258, 1269 (10th Cir. 1999) (“We think it clear that the inadvertence requirement is no longer a necessary condition for a legal ‘plain view’ seizure.“).
immediately apparent.” Angelos, 433 F.3d at 747. The parties dispute whether the incriminating character must be “immediately apparent” at the time of the search, or at the time of the seizure. Defendants assert that the plain view doctrine does not aрply to the U.S. currency or firearms because the incriminating nature of those items was not “immediately apparent” upon their discovery. Rather, the officers only developed probable cause after questioning Nabeel for more than an hour. The government responds that the items were properly seized because their incriminating nature was immediately apparent at the time of their seizure.
The time at which probable cause must be “immediately apparent” depends on the nature of the privacy invasion. All parties rely on Arizona v. Hicks, 480 U.S. 321 (1987). The officers in Hicks entered an apartment without a warrant under the exigent circumstance of investigating a shooting. The Supreme Court held that the plain view doctrine did not permit police to record serial numbers on stereo equipment if doing so required police to move the equipment because moving the objects “produce[d] a new invasion of respondent’s privacy unjustified by [other circumstances] that validated the entry.” Id. at 325. Yet in Hicks, unlike here, the privacy invasion was a warrantless search of the defendant’s property, i.e., moving the stereo. Thus, Hicks stands for the proposition that to search an object under the plain view doctrine, its criminal nature must be immediately apparent at its initial discovery.
To seize an object, however, the criminal nature must be apparent at its seizure. Accordingly, “[a]long with numerous other circuits, we have upheld the
plain view seizure of documents even when the police only learned of the documents’ incriminating nature by perusing them during a lawful search for other objects.” United States v. Soussi, 29 F.3d 565, 570 (10th Cir. 1994) (emphases added); see also United States v. Johnston, 784 F.2d 416, 420 (1st Cir. 1986) (holding probable cause must be established during the search, but not the moment of discovery, because “[police] are not limited by the chance of which room they happen to search first“).
Here, the officers had probable cause to seize the U.S. currency upon its discovery. Special Agent Patterson, who supervised the search of the Arizona residence, had other evidence tying the U.S. currency to Dr. Kahn’s drug enterprise. For example, in his affidavit in support of the warrant, Special Agent Patterson described evidence showing that Dr. Kahn sold prescription medication for cash, that Dr. Kahn had collected more than $3,000,000 from such sales, that Dr. Kahn (like other drug traffickers) likely kept bulk cash in his residence, possibly in a safe, and that on one occasion Dr. Kahn discussed bringing a safe home, albeit to his Wyoming residence. Thus, upon learning of bulk cash stored in a safe (or safes), Special Agent Patterson had probable cause to believe that cash was evidence of Dr. Kahn’s illegal activity.
Defendants assert that the officers lacked probable cause to seize the cash because one of the very purposes of the search was to determine whether Dr. Kahn was issuing unlawful prescriptions. Defendants’ argument conflates the burden of proof to sustain a conviction with probable cause to seize evidence; although the government may have required further
officers had probable cause to seize bulk cash. Further, even assuming officers lacked probable cause to believe bulk cash would be discovered at Dr. Kahn’s Arizona residence, upon its discovery, the officers had probable cause to believe the cash was evidence of Dr. Kahn’s illegal activity. Horton, 496 U.S. at 139 (“[I]f [an officer] has a valid warrant to search for one item and merely a suspicion concerning the second, whether or not it amounts to probable cause, we fail to see why that suspicion should immunize the second item from seizure if it is found during a lawful search for the first.“).
The officers also had probable cause to seize the firearms as contraband after questioning Nabeel. Nabeel informed Speciаl Agent Patterson that the firearms were his, were registered to another, and that he was “not allowed” to own the firearms. App., Vol. VI at 353. Officers also discovered conflicting forms of identification. Defendants do not challenge the voluntariness of Nabeel’s incriminating statements or the discovery of the conflicting identification cards during that search. Thus, the officers had probable cause to believe that Nabeel was an alien in unlawful possession of a firearm. See
5. The Officers Did Not Grossly Exceed the Scope of the Warrant
Defendants next assert that, by seizing numerous items not mentioned in the warrant, the officers grossly exceeded the scope of the warrant, thereby requiring blanket suppression.
“When law enforcement officers grossly exceed the scope of a search warrant in seizing property, the particularity requirement [under the
undermined and a valid warrant is transformed into a general warrant thereby requiring suppression of all evidence seized under that warrant.” United States v. Medlin, 842 F.2d 1194, 1199 (10th Cir. 1988) (Medlin II). In Medlin II, the warrant authorized the search and seizure of “firearms—illegally possessed by Arvle Edgar Medlin, and/or stolen firearms, records of the purchase or sale of such firearms by Medlin, which are fruits, evidenсe and instrumentalities of [unlawful possession of a firearm by a convicted felon].” Id. at 1195. In addition to seizing 130 firearms from Medlin‘s residence, officers also seized 667 items of suspected stolen property. This court found that the 667 items were not seized pursuant to a warrant and were not seized under any exception to the warrant requirement. We then affirmed the district court‘s factual finding that “the seizure of the 667 items was ‘not mitigated by practical considerations’ and that [the officer] ‘employed the execution of the federal search warrant as a fishing expedition.‘” Id. at 1199.
Similarly, in United States v. Foster, 100 F.3d 846, 851 (10th Cir. 1996), we concluded that the seizure of “anything of value” grossly exceeded the scope of the warrant, and thus merited blanket suppression. In addition to seizing the drugs and guns listed in the warrant, officers also seized, without explanation, a “BB gun, drill, TVs, lawnmower, coveralls, socket set, clock radio, coins, knives, [and] jewelry.” Id. at 850. Thus, the search presented “one of those exceedingly rare cases” in which blanket suppression was appropriate. Id. at 852.
Here, blanket suppression is unwarranted. The facts of this case do not begin to resemble those of Medlin II or Foster. Here, only the automobiles were seized without an exception to the warrаnt requirement. Moreover, even if an exception to the warrant requirement did not
B. The Search of the Wyoming Residence Did Not Violate the Fourth Amendment
Dr. Kahn also asserts that the search of his Wyoming residence lacked probable cause. According to Dr. Kahn, DEA Investigator Robert Churchwell‘s affidavit in support of the warrant for the Wyoming search differed from Special Agent Patterson‘s affidavit in support of the warrant for the Arizona search in two important ways. First, Investigator Churchwell‘s affidavit “did not include any opinion as to whether drug dealers tend to keep records or drug paraphernalia at home.” Dr. Kahn‘s Br. at 22. Second, Investigator Churchwell‘s affidavit did not inform the magistrate judge when Dr. Kahn stated he planned to bring patient files from his Wyoming office to his Wyoming residence.
Neither of these distinctions affects our analysis. As explained above, “[a]dditional evidence connecting a defendant‘s suspected activity to his residence may also take the form of inferences a magistrate judge reasonably draws from the [g]overnment‘s evidence.” Biglow, 562 F.3d at 1280 (internal quotation marks omitted). Thus, the affidavit‘s failure to include an opinion regarding where drug dealers tend to keep records is not necessarily fatal. Just as the facts provided in Special Agent Patterson‘s affidavit established a nexus to the Arizona residence, the facts provided in Investigator Churchwell‘s affidavit similarly established a nexus to the Wyoming residence.
Further, the intercepted call in which Dr. Kahn indicated he would bring patient files to his Wyoming residence was not too stale. “[W]hether the information is too stale to establish probable cause depends on the nature of the criminal activity, the length of the activity, and the nature of the property to be seized.” United States v. Snow, 919 F.2d 1458, 1460 (10th Cir. 1990) (internal quotations omitted). In Snow, we held that an affidavit containing “undated hearsay” was not stale, where the investigation occurred over a five week period, the defendant was “running an ongoing, continuous operation tо defraud the government,” and the items sought “were of the type that would be kept for some time given the nature of [the] defendant‘s activities.” Id. Here, as in Snow, the government was investigating ongoing and continuous criminal activity, making the passage of time “less critical.” Id. Also, Dr. Kahn‘s patient files would likely be kept for some time, as opposed to being regularly recycled or destroyed. Thus, considering the nature of Dr. Kahn‘s criminal activity and the nature of the property to be seized, the intercepted call was not too stale. See also Riccardi, 405 F.3d at 861 (holding that, in a child pornography prosecution, a five-year old copy shop receipt was not too stale because it showed the defendant had the “the desire and ability” to convert sexually explicit photographs of minors into digital format).
C. The Search of Vape World Did Not Violate the Fourth Amendment
Dr. Kahn also asserts that Investigator Churchwell‘s affidavit failed to establish
D. A Practitioner May Be Convicted for Prescribing Controlled Substances Either Outside the Scope of Professional Practice or Not for a Legitimate Medical Purpose
Defendants ask us to revisit our prior holding that a licensed physician may be convicted under
In any event, our prior holding in Nelson is sound. Under
The exact extent of the authorization is described in
21 C.F.R. § 1306.04(a) : “A prescription for a controlled substance to be effective must be issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice.” In other words, a practitioner is authorized to dispense controlled substances only if he acts with a legitimate medical purpose and in the usual course of professional practice. Conversely, a practitioner would be unauthorized to dispense a controlled substance if he acts without a legitimate medical purpose or outside the usual course of professional practice.
Nelson, 383 F.3d at 1233 (emphasis in original).
Other circuits have reached the same conclusion. See, e.g., United States v. Armstrong, 550 F.3d 382, 399–400 (5th Cir. 2008) (collecting cases), overruled on other grounds by United States v. Guillermo Balleza, 613 F.3d 432, 433 n.1 (5th Cir. 2010).
E. The District Court Properly Instructed the Jury on Good Faith
Both Defendants challenge the district court‘s jury instructions on the good faith defense, but on different grounds. Nabeel asserts that the district court erred by expressly limiting its good faith instruction to Dr. Kahn, permitting the jury to convict Nabeel on less evidence than was required to convict Dr. Kahn. Dr. Kahn asserts that the district court erred by instructing the jury that a defendant‘s “good faith” must be reasonable, permitting the jury to convict
“We review a district court‘s decision on whether to give a particular jury instruction for abuse of discretion and view the instructions as a whole de novo to determine whether they accurately informed the jury of the governing law.” United States v. Sorensen, 801 F.3d 1217, 1228–29 (10th Cir. 2015) (alteration and internal quotations marks omitted).
Here, the district court instructed the jury:
The good faith of Defendant Shakeel A. Kahn is a complete defense to the charges in Count One (conspiracy to commit a federal drug crime) as well as the charges in Counts Four, Six, Seven, Eleven, Fourteen, Sixteen, Nineteen, and Twenty (knowingly and unlawfully dispensing and/or distributing Oxycodone outside the usual course of professional practice and without a legitimate medical purpose), because good faith on the part of Defendant Shakeel Kahn would be inconsistent with knowingly and intentionally distributing and/or dispensing controlled substances outside the usual course of professional practice and without a legitimate medical purpose, which is an essential part of the charges. “Good faith” connotes an attempt to act in accordance with what a reasonable physician should believe to be proper medical practice.
The good fаith defense requires the jury to determine whether Defendant Shakeel Kahn acted in an honest effort to prescribe for patients’ medical conditions in accordance with generally recognized and accepted standards of practice.
. . .
The burden of proving good faith does not rest with a defendant because a defendant does not have any obligation to prove anything in this case. It is the [g]overnment‘s burden to prove to you, beyond a reasonable doubt, that a defendant knowingly or intentionally acted unlawfully.
In determining whether or not the [g]overnment has proven that a Defendant intentionally or knowingly violated the law, you should consider all of the evidence in the case bearing on the Defendant‘s state of mind.
Dr. Kahn‘s App., Vol. I at 239–40.
1. Nabeel‘s Challenge to the District Court‘s Good Faith Instruction Is Forfeited
Nabeel asserts that the district court erred “in instructing the jury that good faith was a defense for [Dr. Kahn] while refusing to instruct the jury that good faith was a defense for Nabeel Khan[.]” Nabeel‘s Br. at 2. This argument was not, however, the same as the argument Nabeel raised before the district court, and thus we decline to consider it.
During trial, Nabeel submitted a written objection to the district court‘s proposed good faith instruction. In his objection, Nabeel asserted that he “is not a doctor and cannot be held to the same standard as Dr. Kahn when assessing the charges and his good faith belief that what he was doing was not a crime.” App., Vol. II at 1635. Nabeel attached a proposed good faith instruction, which would have instructed the jury that “good faith of a defendant, whether or not objectively reasonable, is a complete defense to the crimes charged, because good faith on the part of a defendant is inconsistent with specific intent, which is an essential part of the charges.” Id. at 1637.
At the jury instruction conference, the district court furnished a new good faith instruction, acknowledging that it had
A party objecting to jury instructions must “inform the court of the specific objection and the grounds for the objection . . . .”
Before the district court, Nabeel argued that he “cannot be held to the same standard” as Dr. Kahn. App., Vol. II at 1635. Yet, Nabeel now asserts that he not only can, but must be held to at least the same standard as Dr. Kahn. See Nabeel‘s Reply Br. at 10 (arguing “the government must prove that a lay defendant like Nabeel acted with the same level of culpable knowledge required to convict a prescribing practitioner like Dr. Kahn“) (emphasis added). Additionally, before the district court, Nabeel rejected an “objective” good faith instruction, and instead proposed a “subjective” good faith instruction. Yet, Nabeel now asserts not only that he is entitled to an “objective” good faith instruction, but that such an instruction was required because it was provided to Dr. Kahn.
Because Nabeel did not raise this specific objection before the district court, we may review only for plain error.
2. Dr. Kahn‘s Objection to the District Court‘s Good Faith Instruction Is Without Merit
Dr. Kahn asserts that the distriсt court erred by instructing the jury that his “good faith” as a physician must be reasonable, permitting the jury to convict Dr. Kahn by finding a lesser mens rea than
Section 841(a)(1) makes it unlawful “[e]xcept as authorized by this subchapter . . . for any person knowingly or intentionally . . . to manufacture, distribute, or dispense . . . a controlled substance.”
We hold that
Section 1306.04(a) also explains that, under the second prong, a prescription is valid only if it is issued “in” the scope of professional practice. Thus, the only relevant inquiry under that second prong is whether a defendant-practitioner objectively acted within that scope, regardless of whether he believed he was doing so. For this reason, at least when referencing the usual course of professional practice, federal case law “has rejected a subjective standard of good faith, in favor of an objective one.” United States v. Schneider, 704 F.3d 1287, 1303 (10th Cir. 2013) (Holmes, J., concurring) (collecting cases).
Limiting consideration of a defendant-practitioner‘s subjective belief to the “legitimate medical purpose” prong accords with the Fifth and Eleventh Circuits. In United States v. Norris, the Fifth Circuit held that a jury is properly instructed when directed to consider “1) [w]hether [the defendant-practitioner] prescribed the drugs for what he subjectively considered a legitimate medical purpose and 2) from an objective standpoint whether the drugs were dispensed in the usual course of a professional practice.” 780 F.2d 1207, 1209 (5th Cir. 1986). In United States v. Tobin, the Eleventh Circuit, adopting the Norris framework, held that “a jury must determine from an objective standpoint whether a prescription is made in the ‘usual course of professional practice.‘” 676 F.3d 1264, 1283 (11th Cir. 2012) (emphasis in original).
The Norris framework is also consistent with Congress‘s policy goals in enacting the Controlled Substances Act (“CSA“), of which
Dr. Kahn‘s assertion that “good faith is a defense because it negates the mens rea element of the offense” is without merit. Dr. Kahn‘s Br. at 38. Unlike other criminal offenses, good faith does not go to mens rea for
Dr. Kahn‘s assertion that this instruction permitted the jury to criminally convict him for mere acts of malpractice or negligence is also without merit. The district court instructed that Dr. Kahn need only “attempt” to act reasonably, and that such an attempt must be made in an “honest effort.” Dr. Kahn‘s App., Vol. I at 239.
Further, the district court correctly instructed that the jury must reach its conclusion “beyond a reasonable doubt.” Id. at 240. Thus, the jury could not convict Dr. Kahn for merely failing to apply the appropriate standard of care; it could only convict Dr. Kahn if it found, beyond a reasonable doubt, that Dr. Kahn failed to even attempt or make some honest effort to apply the appropriate standard of care. See United States v. Sabean, 885 F.3d 27, 45 (1st Cir. 2018) (“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.‘“); United States v. Wexler, 522 F.3d 194, 206 (2d Cir. 2008) (concluding jury did not convict the defendant for “gross mistake or malpractice . . . because the instruction on good faith as to the honest exercise of professional judgment and a reasonable belief as to proper medical practice would shield [the defendant] from criminal liability for any mistake, however gross“). In short, we find no error in the district court‘s instructions.
F. The District Court Properly Instructed the Jury on Intent
Dr. Kahn asserts that the district court‘s intent instruction unfairly burdened his right to testify because it “amount[ed] to directing the jury to disregard the defendant‘s testimony.” Dr. Kahn‘s Br. at 41.
The district court instructed the jury:
The intent of a person or the knowledge that a person possesses at any given time may not ordinarily be proved directly because there is no way of directly
scrutinizing the workings of the human mind. In determining the issue of what a person knew or what a person intended at a particular time, you may consider any statements made or acts done by that person and all other facts and circumstanсes received in evidence which may aid in your determination of that person‘s knowledge or intent. . . . It is entirely up to you, however, to decide what facts to find from the evidence received during the trial.
Dr. Kahn‘s App., Vol. I at 155.
This instruction was proper, and, as Dr. Kahn concedes, is similar to language this court has upheld in prior cases. See, e.g., United States v. Vreeken, 803 F.2d 1085, 1092 (10th Cir. 1986). Further, contrary to Dr. Kahn‘s assertion, the district court‘s instruction did not burden his right to testify. The district court left the jury free to “consider any statements made” by Dr. Kahn, and to decline to consider any other facts or circumstances. Thus, the jury instruction did not “arbitrarily single out his testimony, and denounce it as false.” Reagan v. United States, 157 U.S. 301, 305 (1895). Nor did the district court “highlight[] a testifying defendant‘s deep personal interest in the outcome of a trial.” United States v. Gaines, 457 F.3d 238, 247 (2d Cir. 2006) (discussing Reagan). Rather, the district court properly left weighing the competing evidence “entirely” up to the jury. Dr. Kahn‘s App., Vol. I at 155.
G. The Evidence Was Sufficient to Convict Nabeel of Conspiracy
Nabeel asserts that the evidence admitted at trial fails to show that he had the requisite mental state to be guilty of a drug conspiracy. Specifically, Nabeel asserts that the evidence does not show that he “knew the prescriptions underlying criminal charges were written without a legitimate medical purpose in defiance of professional standards.” Nabeel‘s Br. at 28. According to Nabeel, because the record lacks evidence that he had any medical education or pharmacy training, he could not have known that Dr. Kahn prescribed drugs outside the scope of professional practice.
“We review the sufficiency of the evidence to support a conviction de novo, asking only whether, taking the evidence—both direct and circumstantial, together with the reasonable inferences to be drawn therefrom—in the light most favorable to the government, a reasonable jury could find [the defendant] guilty beyond a reasonable doubt.” United States v. Medina-Copete, 757 F.3d 1092, 1107 (10th Cir. 2014) (alteration in original) (citation and internal quotation marks omitted). “The jury, as fact finder, has discretion to resolve all conflicting testimony, weigh the evidence, and draw inferences from the basic facts to the ultimate facts.” United States v. Harris, 695 F.3d 1125, 1134 (10th Cir. 2012) (internal quotation marks omitted). “We accept at face value the jury‘s credibility determinations and its balancing of conflicting evidence.” Medina-Copete, 757 F.3d at 1107 (internal quotation marks omitted).
The evidence here, when considered in the light most favorable to the government, supports the jury‘s conclusion that Nabeel knew that the prescriptions wеre not issued for a legitimate medical purpose or were issued outside the scope of Dr. Kahn‘s professional practice. Nabeel interacted directly with patients and saw patient profiles. Nabeel also discussed patients, prices, and appointment frequencies with Dr. Kahn. Nabeel also spoke with at least one patient about a TV news report that described patients who illegally sold their prescription medication.
Nabeel‘s reliance on our prior decision in United States v. Lovern, 590 F.3d 1095 (10th Cir. 2009) (Gorsuch, J.), is misplaced. Unlike Nabeel, the pharmacy technician in Lovern “did not interact with customers; he did not see patient profiles; [and] he did not communicate with . . . doctors[.]” Id. at 1105. Further, we concluded the evidence presented in Lovern suggested that the technician оnly knew of some other unlawful activity, such as unlawfully accepting prescriptions over the internet, or failing to register as a pharmacy technician. Id. at 1106. Thus, we reversed the jury‘s conviction of a pharmacy technician because the evidence was insufficient to show that the defendant “knew of the particular problem that [gave] rise to liability under the CSA as opposed to . . . state law or regulation.” Id. at 1109. In contrast, Nabeel offers no alternative theory for what unlawful activity he may have suspected, if not the unlawful distribution of controlled substances.
H. The Improper Witness Testimony Did Not Require a Mistrial
Finally, Dr. Kahn asserts that the district court erred in denying his motion for a mistrial following unfairly prejudicial testimony by a witness.
At trial, a witness for the government testified on direct examination that he was “monitoring Shakeel Kahn‘s jail calls while he was incarcerated.” App., Vol VI at 3857. Dr. Kahn objected and, at sidebar, moved for a mistrial. The government acknowledged that the witness‘s statement prejudiced Dr. Kahn‘s defense, but asserted that the prejudice could be cured by an instruction. Id. The district court then denied Dr. Kahn‘s motion, explaining:
We have spent nearly a month here in this trial. This remark has been made. A whole lot of money has been spent at this point both by the government and by [Dr. Kahn]. I am not sure that my instruction alone can cure any prejudice—a question in the jurors’ mind about—about this.
The district court then instructed the jury that “[t]he answer of the witness . . .
Although not discussed by either party, Dr. Kahn also filed a written Rule 33 motion for a new trial, which the district court denied in a written order. The district court held that a new trial was not required because the prosecutor did not act in bad faith, the district court gave a limiting instruction, and “the remark remains highly inconsequential in light of all the other evidence and testimony presented against [Dr. Kahn] throughout the trial.” Id., Vol. II at 1984–85 (citing United States v. Lamy, 521 F.3d 1257, 1266 (10th Cir. 2008)).
We review a decision to grant or deny a mistrial for abuse of discretion. United States v. McKissick, 204 F.3d 1282, 1299 (10th Cir. 2000). Denial of a new trial “is an abuse of discretion only if it is arbitrary, capricious, whimsical, or manifestly unreasonable.” Lamy, 521 F.3d at 1266. “In determining whether a new trial is required after a witness offers improper information, we consider (1) whether the prosecutor acted in bad faith, (2) whether the district court limited the effect of the improper statement through its instructions to the jury, and (3) whether the impropеr remark was inconsequential in light of the other evidence of the defendant‘s guilt.” Id. (internal quotations omitted).
Assuming the district court‘s reference to the cost and time of trial in its oral ruling was an abuse of discretion, reversal is unwarranted because there is not a “reasonable possibility” that the objectionable testimony affected Dr. Kahn‘s conviction. United States v. Nunez, 668 F.2d 1116, 1124 (10th Cir. 1981) (citing United States v. Bishop, 534 F.2d 214, 220 (10th Cir. 1976)). As the district court found in its written ruling and we confirm in our review of the record, the evidence of guilt in this case is overwhelming in light of the government‘s weeks-long presentation of patient records, patient testimony, and expert testimony. Dr. Kahn‘s reliance on Deck v. Missouri, 544 U.S. 622, 630 (2005) is misplaced. Any prejudice to Dr. Kahn arising from the witness‘s passing reference to “jail calls” is not remotely akin to the prejudice suffered by a defendant who is required to appear before a jury in shackles or prison garb.
III
For the reasons set forth above, we AFFIRM.