United States v. Kahn

• Decision Date: 03 February 2023
• Docket Number: 19-8054
• Citation: 58 F.4th 1308
• Parties: UNITED STATES of America, Plaintiff - Appellee, v. Shakeel KAHN, Defendant - Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

58 F.4th 1308

UNITED STATES of America, Plaintiff - Appellee,

v.Shakeel KAHN, Defendant - Appellant.

No. 19-8054

United States Court of Appeals, Tenth Circuit.

FILED February 3, 2023

Submitted on the briefs:^*

Beau B. Brindley and Blair T. Westover, Chicago, Illinois, for Appellant.

Nicholas Vassallo, Acting United States Attorney, Stephanie I. Sprecher, Assistant United States Attorney, and David A. Kubichek, Assistant United States Attorney, Office of the United States Attorney for the District of Wyoming, Casper, Wyoming, for Appellee.

Before MATHESON, BRISCOE, and CARSON, Circuit Judges.

BRISCOE, Circuit Judge.

This case comes before the court on remand from the United States Supreme Court. Doctor Shakeel Kahn (Dr. Kahn) was convicted in the United States District Court for the District of Wyoming, in part, for dispensing controlled substances not "as authorized," in violation of the Controlled Substances Act (the CSA), 21 U.S.C. § 841(a). Included in his appeal to this court was his contention that the jury instructions issued by the district court improperly advised the jury regarding the mens rea requirement of § 841(a). We affirmed Dr. Kahn's convictions, rejecting not only his challenge to the instructions given, but also his challenges to multiple searches and the evidence seized. In upholding the instructions, we relied on our prior precedent, United States v. Nelson , 383 F.3d 1227 (10th Cir. 2004), and further reaffirmed its holding, which was guided by 21 C.F.R. § 1306.04(a).

Dr. Kahn appealed to the Supreme Court, raising only his instructional challenge. The Supreme Court held that § 841(a) ’s "knowingly or intentionally" mens rea applies to the "except as authorized" clause of the statute, vacated our judgment, and remanded the case for further proceedings consistent with its opinion. Ruan v. United States , ––– U.S. ––––, 142 S. Ct. 2370, 213 L.Ed.2d 706 (2022).¹ The parties have submitted supplemental briefing, and the matter is now ripe for decision.

Exercising jurisdiction under 28 U.S.C. § 1291, we conclude that the jury instructions issued in Dr. Kahn's trial incorrectly stated the mens rea requirement of § 841(a) and, further, that such error was not harmless beyond a reasonable doubt. This prejudicial error infected all of Dr. Kahn's convictions. Therefore, we VACATE Dr. Kahn's convictions on all counts and REMAND for new trial.

I. FACTS

A. Background

In 2008, Dr. Kahn, a medical doctor, opened a practice in Fort Mohave, Arizona. Later that year, his brother Nabeel, who is not a medical doctor, arrived in Arizona and began assisting Dr. Kahn in managing his practice. Thereafter, Dr. Kahn's practice shifted towards pain management. Beginning in late 2012, pharmacies in the Fort Mohave area began refusing to fill prescriptions issued by Dr. Kahn. In 2015, Dr. Kahn opened a second practice in Casper, Wyoming. During that time, Dr. Kahn continued to travel to Arizona to see patients; other patients travelled to Wyoming to see Dr. Kahn. Dr. Kahn's wife, Lyn, began acting as office manager for Dr. Kahn's Wyoming practice.

By 2016, the government was investigating Dr. Kahn's prescribing practices. After law enforcement executed a search warrant on Dr. Kahn's Arizona residence, the government indicted him on the following charges:

• Conspiracy to Dispense and Distribute Oxycodone

, Alprazolam, Hydromorphone, and Carisoprodol Resulting in Death, in violation of 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(C), and (b)(2) (Count One);

• Possession of Firearms in Furtherance of a Federal Drug Trafficking Crime, in violation of 18 U.S.C. § 924(c)(1) (Count Two);

• Dispensing of Oxycodone, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) (Counts Four, Six, Seven, Sixteen, and Twenty);

• Possession with Intent to Distribute Oxycodone and Aid and Abet, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) and 18 U.S.C. § 2 (Counts Five, Nine, and Ten);

• Unlawful Use of a Communication Facility, in violation of 21 U.S.C. § 843(b) (Counts Eight, Twelve, Thirteen, Seventeen, and Eighteen);

• Dispensing of Oxycodone and Aid and Abet, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) and 18 U.S.C. § 2 (Counts Eleven, Fourteen, and Nineteen);

• Continuing Criminal Enterprise, in violation of 21 U.S.C. § 848(a), (b) and (c) (Count Twenty One);

• Engaging in Monetary Transactions Derived from Specified Unlawful Activity, in violation of 18 U.S.C. § 1957 (Counts Twenty Two and Twenty Three);

Aplt. App., Vol. I at 45.

B. Trial and Jury Instructions

Lyn pleaded guilty to the conspiracy charge against her. Dr. Kahn and Nabeel, however, moved to suppress evidence seized in the searches of Dr. Kahn's homes and businesses. The district court denied the motion (except that it suppressed the seizure of any automobiles), and the case proceeded to trial.

After the close of evidence, the district court gave the following instructions to the jury pertaining to the 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) charges in Counts Four, Six, Seven, Eleven, Fourteen, Sixteen, Nineteen, and Twenty:

JURY INSTRUCTION NO. 36 ... [The government] charge[s] various instances of knowingly and unlawfully dispensing and/or distributing Oxycodone while acting and intending to act outside the usual course of professional practice and without a legitimate medical purpose, in violation of 21 U.S.C. Section 841(a)(1) .... In pertinent part, Section 841(a) states it is "unlawful for any person knowingly or intentionally to ... distribute or dispense ... a controlled substance," unless a specific exception authorizes it.

JURY INSTRUCTION NO. 37 .... To prove Defendant Shakeel Kahn is guilty of one or more of these Counts, the Government must prove beyond a reasonable doubt each of the following elements: ... (3) Defendant Shakeel Kahn knowingly or intentionally distributed or dispensed the controlled substance outside the usual course of professional medical practice or without a legitimate medical purpose.

JURY INSTRUCTION NO. 39 ... 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 faith 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.

Aplt. App., Vol. I at 236–37, 239.²

Dr. Kahn and Nabeel objected to the district court's jury instructions regarding their potential criminal liability under § 841(a)(1), their respective "good faith" defenses, and the intent requirement under the CSA. The district court overruled these 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.

C. Appeals

Dr. Kahn and Nabeel appealed their convictions on multiple grounds, including the jury instructions, and this court affirmed the convictions. See United States v. Kahn , 989 F.3d 806 (10th Cir.), cert. granted sub nom. Kahn v. United States, ––– U.S. ––––, 142 S.Ct. 457, 211 L.Ed.2d 278 (2021), and vacated and remanded sub nom. Ruan , ––– U.S. ––––, 142 S. Ct. 2370, 213 L.Ed.2d 706. Dr. Kahn then appealed to the Supreme Court, challenging the jury instructions as they relate to his CSA convictions. Specifically, Dr. Kahn argued that the jury instructions did not properly instruct the jury regarding the mens rea requirements of the CSA for distributing controlled substances not "as authorized." See 21 U.S.C. § 841(a).

The Supreme Court determined that this court applied an incorrect scienter standard, and it vacated our earlier judgment. Ruan , 142 S. Ct. at 2382. The Supreme Court instructed us to address on remand whether the jury instructions that were given at Dr. Kahn's trial complied with the mens rea standard set forth in Ruan , as well as whether any instructional error was harmless. Id.

II. DISCUSSION

In order to determine whether the instructions provided to the jury during Dr. Kahn's trial complied with the mens rea standard set forth in Ruan , as well as whether any instructional error was harmless beyond a reasonable doubt, we first discuss the CSA and the Ruan decision. Then, applying the scienter requirement discussed in Ruan to the jury instructions at issue, we conclude that (1) the district court did not properly instruct the jury as to the mens rea that the government was required to prove beyond a reasonable doubt to convict Dr. Kahn, and (2) such error was not harmless.

A. The CSA and Ruan

Dr. Kahn was convicted by a jury for violating the following provision of the CSA:

(a) Unlawful acts

Except as authorized by this subchapter , it shall be unlawful for any person knowingly or intentionally—

(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance; or

(2) to create, distribute, or dispense, or possess with intent to distribute or dispense, a counterfeit substance.

21 U.S.C. § 841(a) (emphasis added). A federal regulation provides that, to be "authorized," "[a] prescription for a controlled substance ... must be issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice." 21 C.F.R. § 1306.04.

In Ruan ,...