UNITED STATES of America, Plaintiff-Appellee, v. Naeem Mahmood KOHLI, Defendant-Appellant.
No. 15-3481
United States Court of Appeals, Seventh Circuit.
February 1, 2017
Rehearing and Suggestion for Rehearing En Banc Denied March 27, 2017
847 F.3d 483
MANION, Circuit Judge.
Argued September 9, 2016
We are also disinclined to rest our decision on judicial estoppel, even though we agree with the district court that there is at best a troubling inconsistency between plaintiffs’ commitments to this court at the time of Domanus I and their present position. Some aspects of the new claim may indeed be estopped, but to the extent that plaintiffs are now complaining about a different alleged conspiracy, the requirements for judicial estoppel might not be mеt. Rather than untangling all the threads, we elect not to rest on this point. Even under the district court‘s view, not everything was barred by judicial estoppel, and so it is easier to set this aside.
We express no opinion on the applicability of the Noerr-Pennington doctrine to the lawyer-defendants’ actions. That doctrine—which initially appeared in the field of antitrust—recognizes that statutes should not be construed to cover the activity of petitioning government, if at all possible. Whether the branch of government is the legislature, the executive, or the courts, the right to present one‘s viewpoint is protectеd by the First Amendment. There is a “sham” exception to Noerr-Pennington, see Prof‘l Real Estate Inv‘rs, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 113 S.Ct. 1920, 123 L.Ed.2d 611 (1993), but it is difficult to show that litigation is so objectively baseless, or so clearly based on knowing and material falsehoods, that the exception applies. We note only that there are many tools available to discipline lawyers who foment frivolous litigation, and so our decision not to reach this point is of little consequence.
Finally, as we indicated at the outset, the district court has broad discretion over claims brought under its supplemental jurisdiction,
IV
No one, least of all the law firms and lawyers involved in these matters, covered himself with glory, accepting for present purposes the allegations in the two supplemental complaints. Nevertheless, we agree with the district court‘s concluding comment: “Plaintiffs certainly provide a detailed claim of wrongdoing by the attorney defendants, аnd plaintiffs may not be without recourse. But their path to relief based on these allegations is not through RICO, and thus not in federal court.” We AFFIRM the judgment of the district court.
Talat M. Bashir, Talat M. Bashir, Esq., Belleville, IL, Richard H. Sindel, Attorney, Sindel, Sindel & Noble, P.C., Clayton, MO, Stephen Robert Welby, Welby Law Firm, St. Louis, MO, for Defendant-Appellant.
Before POSNER, MANION, and WILLIAMS, Circuit Judges.
MANION, Circuit Judge.
Dr. Naeem Kohli, an Illinois physician who specialized in pain management, was convicted on multiple counts of prescribing narcotics without a legitimate medical purpose in violation of
We conclude that the jury‘s verdict is supported by sufficient evidence and that the motion for acquittal was properly denied. We further hold that the district court‘s jury instructions provided a fair and accurate summary of the law, and that its challenged evidentiary rulings were not an abuse of discretion. We therefore affirm Dr. Kohli‘s conviction.
I. BACKGROUND
Dr. Naeem Kohli was a board-certified neurologist with extensive training in the treatment of chronic pain. He operated a private medical practice called the Kohli Neurology and Sleep Center located in Effingham, Illinois. Irregularities in the practice eventually caught the attention of federal officials, and in 2014 Dr. Kohli was indicted on three counts of healthcare fraud, two counts of money laundering, and ten counts of illegal dispensation of a
A. Expert Testimony of Dr. Parran
Some of the most important testimony came from the government‘s expert witness Dr. Theodore Parran, an addiction specialist and internal medicine physician who has previously testified for the government in similar prosecutions. See, e.g., United States v. Chube II, 538 F.3d 693, 698 (7th Cir. 2008). Before trial, Dr. Parran reviewed Dr. Kohli‘s patient files for each of the patients who had received the allegedly unlawful prescriptions charged in the indictment. Dr. Parran did not dispute that these patients suffered from legitimate, painful medical conditions that might ordinarily warrant treatment with narcotics. As Dr. Parran explained to the jury, however, Dr. Kohli‘s files reflect that he prescribed narcotics to these patients under circumstances that were far from ordinary.
The files showed, for example, that Dr. Kohli routinely prescribed addictive opioids to patients who had a history of drug addiction and who were known to be “multi-sourcing,” or simultaneously obtaining various prescriptions for controlled substances from multiple sources or providers. He also prescribed early refills, anywhere from a day to several weeks before the refills were due, to patients who repeatedly claimed that their narcotics medications had run out or were lost or stolen. These same patients often had irregular toxicology screens in which they tested negative for the drugs that Dr. Kohli had prescribed, but positive for other drugs (including illegal drugs and other controlled substances) that he did not prescribe. Dr. Kohli‘s office also received phone calls from the Veterans Administration and a certain patient‘s family members reporting that one of his patients was actively abusing drugs. Despite these troubling developments, Dr. Kohli continued to prescribe highly addictive Schedule II opioids, such as oxycodone and hydromorphone, on a regular basis.
According to Dr. Parran, Dr. Kohli‘s prescriptions under these circumstances offered no medical benefit and were in some cases simply “inconceivable” from a clinical standpoint. Ultimately, based on his review of the relevant patient files, Dr. Parran concluded that the prescriptions identified in the indictment were inconsistent with the usual course of professional practice and had no legitimate medical purpose.
B. Other Evidence regarding Dr. Kohli‘s Prescribing Practices
Dr. Kohli‘s patients testified that he charged $350 per offiсe visit to obtain a prescription for a controlled substance. Patients who did not have insurance, or who had insurance but were visiting early to obtain an early refill, paid the entire fee out of pocket. Dr. Kohli also traveled from his office once a month to see additional patients at Richland Memorial Hospital. The director of physician services at that hospital testified that she noticed Dr. Kohli‘s prescriptions for controlled substances were already filled out before he saw his patients there. She also observed that Dr. Kohli would see about 30 patients in 90 minutes.
C. Cross-Examination and Impeachment of Dr. Kohli
For four days, Dr. Kohli testified about his medical practice and insisted that he
In light of this new information, the government proceeded to impeach Dr. Kohli on cross-examination by questioning his earlier testimony that no patient had ever died under his care. When Dr. Kohli answered as before, the government asked him if he remembered his patient Kenneth Kramer. Dr. Kohli replied that he did not. The district court then stopped the government‘s line of questioning and ordered it to give opposing counsel the materials it had obtained from the coroner‘s office before the questioning could resume.
After the defense reviewed the materials ovеrnight, the government resumed its impeachment the next day by asking Dr. Kohli (over the defense‘s objection) if he remembered that a patient named Kenneth Kramer had died of an accidental overdose while under his care. Dr. Kohli responded that he did not know about Kramer‘s death until he received the materials from the government the day before.1 The government did not introduce the materials from the coroner‘s office into evidence, but limited its impeachment to questioning Dr. Kohli on cross-examination and was bound by Dr. Kohli‘s answers by order of the district court.
D. Jury Instructions and Verdict
At the close of the evidence, Dr. Kohli moved for aсquittal on grounds that the government had failed to present sufficient evidence to sustain a conviction. The district court denied the motion and submitted the case to the jury. The court instructed the jury to render a conviction only if it found, beyond a reasonable doubt, that Dr. Kohli intentionally prescribed controlled substances outside the usual course of professional practice and without a legitimate medical purpose:
In order for you to find the Defendant guilty of a charge of causing the illegal dispensation of a Schedule II controlled substance, the Government must prove the following elemеnts beyond a reasonable doubt as to the charge that you are considering:
1: That the Defendant knowingly caused to be dispensed the controlled substance alleged in the charge you are considering;
2: That the Defendant did so by intentionally prescribing the controlled substance outside the usual course of professional medical practice, and not for legitimate medical purpose; and
3: That the Defendant knew that the substance was some kind of a controlled substance.
The court further instructed the jury to consider the normative standards of professional medical care when еvaluating whether Dr. Kohli‘s conduct deviated from the usual course of professional practice:
In determining whether Defendant‘s conduct was outside the usual course of professional medical practice, you should consider the testimony you have heard
relating to what has been characterized during the trial as the norms of professional practice. You should consider the Defendant‘s actions as a whole, the circumstances surrounding them, and the extent of severity of any violations of professional norms you find the Defendant may have committed.
Finally, the court cautioned the jury not to convict Dr. Kohli if it found that he acted in good faith:
[T]he Defendant may not be convicted if he dispenses or causes to be dispensed controlled substances in good faith to patients in the usual course of professional medical practice. Only the lawful acts of a physician, however, are exempted from prosecution under the law. The Defendant may not be convicted if he merely made an honest effort to treat his patients in compliance with an accepted standard of practical practice.... Good faith in this context means good intentions and the honest exercise of good professional judgment as to the patient‘s medical needs.
The jury ultimately convicted Dr. Kohli on seven counts of illegally dispensing Schedule II controlled substances, in violation of
II. DISCUSSION
Dr. Kohli‘s primary argument on appeal is that the district court should have granted his motion for acquittal based on insufficient evidence. He also argues that the district court erred by permitting Dr. Parran to testify to legal conclusions in violation of
A. Motion for Acquittal
Dr. Kohli asserts that he was entitled to acquittal because the evidence did not establish that he intentionally engaged in any unlawful conduct. We review a district court‘s denial of a motion for acquittal de novo. United States v. Vallar, 635 F.3d 271, 286 (7th Cir. 2011).
A motion for acquittal should be granted “only where ‘the evidence is insufficient to sustain a conviction.‘” United States v. Jones, 222 F.3d 349, 351-52 (7th Cir. 2000) (quoting
To convict a prescribing physician under
In this case, the government presented ample evidence establishing that Dr. Kohli intentionally abandoned his role as a medical professional and unlawfully dispensed controlled substances with no legitimate medical purpose. Indeed, Dr. Kohli‘s own patient files (introduced through the testimony of Dr. Parran) showed that he regularly prescribed highly аddictive and potentially dangerous Schedule II opioids to patients who (1) had a known history of drug abuse; (2) repeatedly sought early refills based on dubious claims that their medications had disappeared; (3) frequently “multi-sourced” their prescriptions by simultaneously obtaining additional quantities of controlled substances from other providers; and (4) displayed alarmingly irregular toxicology results suggesting both obvious drug abuse and possible secondary dealing. Based on this evidence, a reasonable jury could infer that Dr. Kohli knowingly prescribed controlled substances to patients who were misusing the prescriptions, and thus that hе deliberately made the prescriptions outside the ordinary scope of professional practice and with no acceptable medical justification.
To be sure, Dr. Kohli presented conflicting evidence, including his own testimony, indicating that he made the challenged prescriptions in a good-faith medically appropriate effort to manage his patients’ chronic pain. But the jury was not required to believe that evidence, and we will not supplant the jury‘s credibility findings on appeal. See United States v. Griffin, 84 F.3d 912, 927 (7th Cir. 1996); United States v. Curry, 79 F.3d 1489, 1497 (7th Cir. 1996) (“[Q]uestions of credibility are solely for the trier of fact.“); United States v. Nururdin, 8 F.3d 1187, 1194 (7th Cir. 1993) (“As an appellate court, wе ‘will not reweigh the evidence or judge the credibility of witnesses when reviewing the sufficiency of the evidence.‘“).
Dr. Kohli also argues that his case should not have gone to a jury because, unlike in the typical “pill-mill” prosecution, the evidence here convincingly established that the relevant prescriptions were given exclusively to patients who suffered from documented medical conditions associated with chronic pain. Since the evidence also showed that these same patients exhibited addictive behaviors, Dr. Kohli contends that the jury must have convicted him based on an erroneous belief that the Controlled Substances Act categorically criminalizes prescribing narcotics to patients who happen to suffer from addiction disorder in addition to chronic pain.
This argument misses the mark. The issue before the jury was not simply whether Dr. Kohli prescribed narcotics to drug addicts. That, in itself, is certainly not a violation of the Controlled Substances Act.2 Rather, the issue was whether he deliberately prescribed outside the bounds of medicine and without a genuine medical basis. As discussed above, the gov-
To be clear, we agree with Dr. Kohli that physicians are not automatically liable under
In sum, viewed in the light most favorable to the prosecution, the evidence was sufficient to enable a rational jury to conclude beyond a reasonable doubt that Dr. Kohli intentionally and knowingly prescribed controlled substances outside the usual course of professional medical practice and without a legitimate medical purpose. The conviction is supported by sufficient evidence, and the motion for acquittal was properly denied.
B. Expert Testimony of Dr. Parran
Dr. Kohli next argues that the district court erred by allowing Dr. Parran to testify about applicable legal standards and legally dispositive issues in violation of
Dr. Parran‘s expert testimony in this case falls squarely within the parameters of Rule 704. As noted earlier, Dr. Parran testified that he believed certain of Dr. Kohli‘s prescriptions were inconsistent with the usual course of professional practice and lacked a legitimate medical purpose. That testimony tracks the elements necessary to sustain a conviction for illegal dispensation, see
Accordingly, the district court did not abuse its discretion in admitting Dr. Parran‘s expert testimony.
C. Impeachment on Cross-Examination
Dr. Kohli also maintains that the district court erred by allowing the government to impeach him about the death of his former patient Kenneth Kramer. We review the district court‘s ruling for an abuse of discretion. See United States v. Boswell, 772 F.3d 469, 476 (7th Cir. 2014); United States v. Owens, 145 F.3d 923, 927 (7th Cir. 1998).
It is well-settled that “when a criminal defendant elects to testify in his own defense, he puts his credibility in issue and exposes himself to cross-examination, including the possibility that his testimony will be impeached.” Boswell, 772 F.3d at 475; see also United States v. Taylor, 728 F.2d 864, 874 (7th Cir. 1984). As mentioned earlier, Dr. Kohli unequivocally testified—not once but twice—that no patient had ever died under his care: “Have you ever had a patient die under your care? No, sir.... I never had a problem, a patient died on me.” By making these affirmative statements on direct examination, Dr. Kohli put his credibility in issue and thus opened the door for the government to impeach him on cross-examination. We agree with the district court that the government had every right to question the truthfulness of what Dr. Kohli himself chose to say in his own defense in open court.
1. Collateral Evidence Rule
Dr. Kohli tries to evade this conclusion by invoking the familiar rule against impeachment by contradiction on collateral matters (commonly known as the collateral evidence rule). But that rule does not apply here for several reasons. To begin, the collateral matter at issue—whether any patients had ever died under Dr. Kohli‘s care—was elicited by Dr. Kohli‘s counsel on direct examination, not by the government on cross-examination. See Taylor, 728 F.2d at 873-74 (emphasizing that the collateral evidence rule applies
2. Rule 16
Dr. Kohli also contends that the government failed to timely disclose its impeachment materials in violation of
We see no reversible error. As a preliminary matter, we‘re doubtful that Rule 16 applies here because the information from the coroner‘s office bears no relation to the charges in this case (Kramer died years before the earliest events giving rise to the indictment) and so doesn‘t appear “material to preparing the defense.” Rather, the information became material—for the limited purpose of impeaching Dr. Kohli—only after Dr. Kohli voluntarily testified at trial that no patient had ever died under his care. It is difficult to see how an admittedly “collateral matter” that is оtherwise irrelevant to the pending charges could suddenly become “material” to the defense simply because the defendant chooses to testify about it on direct examination. See United States v. Caro, 597 F.3d 608, 621 & n.15 (4th Cir. 2010) (collecting cases) (holding that information is “material to the defense” under
In any event, even if the government violated Rule 16 by failing to disclose the coroner‘s report sooner than it did, any error was harmless. The materials were not introduced into evidence, and the dis-
On the whole, the district court‘s balanced approach to Dr. Kohli‘s impeachment was reasonable and not an abuse of discretion. Reversal is not warranted.
D. Jury Instructions
Dr. Kohli‘s final argument is that the district court erroneously instructed the jury that a finding of civil malpractice was sufficient to support a conviction. A district court has substantial discretion in formulating the precise wording of jury instructions “so long as the final result, read as a whole, completely and correctly states the law.” United States v. Gibson, 530 F.3d 606, 609 (7th Cir. 2008). Dr. Kohli‘s counsel did not object to the jury instructions he now challenges on appeal, so we review the instructions for plain error.7 United States v. Javell, 695 F.3d 707, 713 (7th Cir. 2012). Plain-error review “is ‘particularly light-handed in the context of jury instructions,’ since it is unusual that any error in an instruction to which no party objected would be so great as to affect substantial rights.” United States v. DiSantis, 565 F.3d 354, 361 (7th Cir. 2009).
The district court‘s jury instructions in this case were not plainly erroneous. The court instructed the jury to convict Dr. Kohli of illegally dispensing controlled substances under
We see no support for Dr. Kohli‘s argument that the district court somehow conflated the standards for civil and criminal liability, or that it otherwise misled the jury into believing that it could find Dr. Kohli criminally liable for engaging in mere civil malpractice. The district court‘s jury instructions fairly and accurately stated the law and do not warrant reversal.
III. CONCLUSION
For the foregoing reasons, the judgment of the district court is AFFIRMEd.
MANION
CIRCUIT JUDGE