Date: 03-22-2018

Case Style:

Case Number: 17-1484

Judge: Selya

Court: United States Court of Appeals for the First Circuit on appeal from the District of Maine (Cumberland County)

Plaintiff's Attorney: Halsey B. Frank and Margaret C. McGaughey

Defendant's Attorney: Alfred Cevil Frawley, IV, Thimi P. Mina and Joy P. McCloskey

Description: 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 defendantappellant
Joel A. Sabean guilty on all of the charged counts.
The defendant strives to convince us, through a wideranging
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 drugdistribution
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
2 For 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 onthe-
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.
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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.
- 24 -
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 nonhearsay
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."
- 25 -
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
- 26 -
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
- 27 -
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 rosecolored
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
- 28 -
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
- 29 -
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
4 A copy of the relevant portion of the jury instructions is
reprinted as an appendix.
- 30 -
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.
- 31 -
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
- 32 -
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
- 33 -
"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
- 34 -
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
- 35 -
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
- 36 -
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 caseby-
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
- 37 -
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
- 38 -
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 antidepressant
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.
- 39 -
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.
- 40 -
convicted. For the reasons elucidated above, the judgment of the
district court is
Affirmed.

Outcome: Affirmed

Plaintiff's Experts:

Defendant's Experts:

Comments: