895 F.2d 618 (9th Cir. 1990), 84-1260, United States v. Kaplan

Docket Nº:84-1260.
Citation:895 F.2d 618
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Steven L. KAPLAN, M.D., Defendant-Appellant.
Case Date:February 07, 1990
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 618

895 F.2d 618 (9th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,

v.

Steven L. KAPLAN, M.D., Defendant-Appellant.

No. 84-1260.

United States Court of Appeals, Ninth Circuit

February 7, 1990

Argued and Submitted Sept. 14, 1989.

Page 619

Robert W. Lueck, Las Vegas, Nev., for defendant-appellant.

Paul E. Wommer, Asst. U.S. Atty., Las Vegas, Nevada, for plaintiff-appellee.

Appeal from the United States District Court for the District of Nevada.

Before CANBY, and NORRIS, Circuit Judges, and WILSON 1, District Judge.

WILSON, District Judge:

This is an appeal from a final judgment of conviction in a criminal case. Appellant, a medical doctor, was convicted of mail fraud in a scheme aimed at defrauding an insurance company and of prescribing controlled substances for reasons other than legitimate medical purposes. A five year sentence of unsupervised probation was imposed on August 7, 1984. This court has jurisdiction pursuant to 28 U.S.C. Sec. 1291.

FACTS

Appellant, Steven L. Kaplan, was a physician duly licensed to practice medicine in the state of Nevada. This case arose from two independent investigations being conducted by state and federal law enforcement agencies into appellant's medical and controlled substance prescription practices. The Federal Bureau of Investigation's (FBI) investigation of appellant centered around allegations that he was involved in and engaging in schemes aimed at defrauding various insurance companies. The FBI's investigation also concerned itself with the controlled substance prescription practices of appellant. A separate investigation of appellant's prescription practices was also conducted during this same time period by the Investigative Division of the state of Nevada.

The two mail fraud counts (Counts 1-2) arose from the investigation by the FBI, as did the first seventeen controlled substance distribution counts (Counts 3-19). Each of these counts was the result of the appellant's dealings with FBI Special Agent Rick P. Baken, who was acting in an undercover capacity using the name "Jimmy Sollow." Baken originally approached appellant on May 3, 1983, for the purpose of developing evidence regarding allegations that appellant

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was filing false insurance claims. Baken met with appellant eleven more times during the period of May 3 to June 8, 1983. On those occasions appellant prescribed numerous controlled substances even though no physical examinations were performed.

Counts 20 through 39, all of which charged appellant with separate counts of distributing a controlled substance by way of a prescription not issued in the usual course of professional practice and not for legitimate medical purpose, were based upon the investigation conducted by the Investigative Division for the state of Nevada. Counts 20 through 28 involved various controlled substances the appellant prescribed to David Buzzalini, a paid confidential operative utilizing the undercover name "David Charles."

Counts 29 through 39 involved dealings appellant had with Robert Nepolitan, a paid informant utilizing the name "Steve Watkins." Nepolitan met with appellant at least twelve times between December 7, 1982, and April 19, 1983, for the purpose of obtaining prescriptions for controlled substances. In May 1983, Nepolitan voluntarily approached the Investigative Division and provided that agency with information concerning the appellant. Nepolitan agreed to assist in the investigation of appellant and subsequently met with appellant three additional times. On June 15, 1983, Nepolitan gave appellant a bag of what purportedly was marijuana (in reality, it was commercial brand tea) in exchange for some prescribed controlled substances. Following this exchange, appellant was arrested.

Appellant now appeals his conviction on five grounds: (1) insufficiency of the evidence as to counts 20-39; (2) the district court's refusal to sever the counts based on the state investigation from the counts based on the federal investigation; (3) the district court's denial of a motion to suppress for a warrantless search; (4) the district court's denial of a motion to suppress for a subsequent search; and (5) the district court's failure to give a jury instruction.

DISCUSSION

I. Sufficiency of the Evidence

A criminal conviction is supported by sufficient evidence if, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original); U.S. v. Whitworth, 856 F.2d 1268, 1286 (9th Cir.1988), cert. denied, --- U.S. ----, 109 S.Ct. 1541, 103 L.Ed.2d 846 (1989).

Counts 20-39 charged appellant with violating 21 U.S.C. Sec. 841(a)(1), which provides "[e]xcept as authorized by this subchapter, it shall be unlawful for any person knowingly or...

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