United States v. Khan
| Decision Date | 25 February 2021 |
| Docket Number | No. 19-8054,No. 19-8051,19-8051 |
| Citation | 989 F.3d 806 |
| Parties | UNITED STATES of America, Plaintiff - Appellee, v. Nabeel Aziz KHAN, a/k/a Sonny, a/k/a Nabeel Aziz Kahn, Defendant - Appellant. United States of America, Plaintiff - Appellee, v. Shakeel Kahn, Defendant - Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Mark Baker (Rebekah A. Gallegos, with him on the briefs), Peifer, Hanson, Mullins & Baker, P.A., Albuquerque, New Mexico, appearing for Appellant Nabeel Aziz Khan.
Beau B. Brindley (Blair T. Westover, with him on the briefs), Chicago, Illinois, appearing for Appellant Shakeel Kahn.
Stephanie I. Sprecher, Assistant United States Attorney (Mark A. Klaassen, United States Attorney; Stephanie A. Hambrick and David A. Kubichek Assistant United States Attorneys, with her on the briefs), Office of the United States Attorney for the District of Wyoming, Casper, Wyoming, appearing for Appellee.
Before BRISCOE, MATHESON, and CARSON, Circuit Judges.
Defendant Nabeel Aziz Khan ("Nabeel") and his brother, Defendant Dr. Shakeel Kahn ("Dr. Kahn," collectively "Defendants"),1 challenge their drug trafficking and money laundering convictions following a jury trial in the United States District Court for the District of Wyoming. Defendants were tried together; they appeal separately. Because their appeals raise several overlapping issues, we address both appeals in this opinion.
We conclude that the search of Dr. Kahn's Arizona residence was proper. The magistrate judge who issued the warrant had a substantial basis for concluding that the affidavit in support of the warrant established probable cause. Further, the seizure of items not listed in the warrant was supported by the plain view doctrine. The searches of Dr. Kahn's Wyoming residence and Wyoming business were also proper. The district court's instruction regarding liability under § 841 was correct because this court has previously held that criminal liability under § 841 is disjunctive, not conjunctive. Nabeel's challenge to the district court's good faith instruction falls victim to forfeiture as he raises a different theory on appeal than he presented to the district court. The district court's good faith instruction correctly stated the law as to Dr. Kahn because "good faith" is not a defense as to mens rea, but rather is a defense as to the lawfulness of a prescription. The district court's intent instruction did not burden Dr. Kahn's right to testify on his own behalf because it did not direct the jury on how to weigh Dr. Kahn's testimony. The evidence was sufficient to sustain Nabeel's conviction because the evidence shows Nabeel knew Dr. Kahn's prescriptions were unlawful. And finally, the objectionable testimony identified by Dr. Kahn in his motion for a new trial was inconsequential in light of the overwhelming evidence of guilt.2 Accordingly, exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.
In 2008, Dr. Kahn started a medical practice in Ft. Mohave, Arizona. Later that year, Nabeel arrived in Arizona and began assisting with managing Dr. Kahn's practice. Nabeel's responsibilities included checking patients in, taking their vitals such as blood pressure or body weight, and processing their payments.
After Nabeel's arrival, Dr. Kahn's practice shifted towards pain management. Dr. Kahn regularly prescribed patients various controlled substances, including oxycodone
, alprazolam, and carisoprodol. As time went on, Dr. Kahn spent less time with patients, and the patients he did see were almost exclusively for pain management. The prescriptions he wrote aligned closely with what patients were able to pay, rather than the patients’ medical need; when patients were prescribed more pills, Dr. Kahn charged more for his medical services, and when patients could not afford the price of the prescription, Dr. Kahn prescribed fewer pills, or withheld a prescription entirely. The price of prescriptions also closely tracked the "street price" of the pills, which Dr. Kahn often discussed with patients. In addition to shifting towards pain management, Dr. Kahn's practice also shifted to a primarily "cash-only" basis, although he also accepted payment in personal property, including firearms.
After a patient died, Dr. Kahn commented "[s]he was probably selling her prescriptions for illegal drugs." App., Vol. VI at 2573.3 In fact, many of Dr. Kahn's patients sold pills so they could afford their prescriptions. See, e.g., id. at 2566, 3559. Nabeel also spoke with at least one patient about a TV news report that described patients who illegally sold their prescription medication.
In 2013, Nabeel helped Dr. Kahn draft a "drug addiction statement," which patients were required to sign. By signing the drug addiction statement, patients swore that Dr. Kahn was not a "drug dealer," that they were not "addicts," and that they would be liable to Dr. Kahn, or his officers and agents, for $100,000 for any civil or criminal action brought against Dr. Kahn, or his officers and agents, as a result of any action taken by the patient. See id. , Suppl. Vol. I at 134; id. , Vol. VI at 4461. At trial, an expert witness for the government opined that Defendants’ "drug addiction statement" was neither an "appropriate" nor "acceptable" way to advise a patient. Id. , Vol. VI at 1418.
Beginning in late 2012, pharmacies in the Ft. Mohave area began refusing to fill prescriptions issued by Dr. Kahn. In 2015, Dr. Kahn opened a second practice in Casper, Wyoming. During that time, Dr. Kahn continued to travel to Arizona to see patients about once per month; other patients travelled to Wyoming to see Dr. Kahn. Nabeel also met patients in parking lots to exchange their prescriptions for cash. Dr. Kahn maintained offices and residences in both Arizona and Wyoming during this time, although he primarily resided in his Wyoming residence. Nabeel primarily resided at Dr. Kahn's Arizona residence. Nabeel also acted as office manager for the Arizona office. Dr. Kahn's wife, Lyn Kahn, acted as office manager for the Wyoming office. As part of her role as office manager, Lyn Kahn forwarded calls from the Wyoming office to her cell phone to schedule appointments and arrange payments.
In 2016, in the course of investigating Dr. Kahn's prescribing practices, the government intercepted a call between Dr. Kahn and Lyn Kahn. During that call, Dr. Kahn, while cleaning his Wyoming office, indicated that he would bring some patient files to his Wyoming residence. Pursuant to a warrant, officers searched Dr. Kahn's Arizona residence, his Wyoming residence, and "Vape World," a Wyoming business owned by Dr. Kahn and Lyn Kahn. In searching Dr. Kahn's Arizona residence, officers seized patient files pursuant to the warrant; they also seized U.S. currency, firearms, and automobiles, although those items were not listed on the warrant as items to be seized.
Defendants and Lyn Kahn were charged in a 23-count indictment, alleging, among other charges, that the Defendants and Lyn Kahn conspired to dispense and distribute controlled substances resulting in death in violation of 21 U.S.C. §§ 841 and 846, that Defendants possessed firearms in furtherance of a federal drug trafficking crime in violation of 18 U.S.C. § 924(c)(1), and Dr. Kahn engaged in monetary transactions derived from specified unlawful activity in violation of 18 U.S.C. § 1957 (money laundering). App., Vol. I at 327. Prior to trial, Lyn Kahn pled guilty to the conspiracy charge against her.
Defendants moved to suppress evidence gathered from the searches of Dr. Kahn's Arizona residence, his Wyoming residence, and Vape World. The district court denied that motion, except that it suppressed the seizure of any automobiles.
During the trial, a witness for the government, on direct examination, referred to Dr. Kahn being in jail. Dr. Kahn objected and moved for a mistrial. The district court denied the motion from the bench, and instead offered a curative instruction. The district court acknowledged, however, that it was "not sure" that its instruction would cure the prejudice caused by the witness's testimony. Id. , Vol. VI at 3858.
Defendants also objected to the district court's jury instructions regarding liability under § 841(a)(1), their respective "good faith" defenses, and intent. The district court denied those objections. The jury returned a verdict of guilty on all counts, except that it acquitted Nabeel of causing the death of one of Dr. Kahn's patients. Dr. Kahn filed a Rule 33 motion reasserting his mistrial motion. In a written order, the district court ruled that a mistrial was unwarranted in light of the overwhelming evidence presented of Dr. Kahn's guilt. Defendants then filed timely notices of appeal.
Both Defendants challenge the search of Dr. Kahn's Arizona residence, and the resulting seizures of U.S. currency and firearms not identified in the warrant. The government responds that the issue is waived through inadequate briefing and is without merit because the search was supported by probable cause, and the seizures were permitted under the plain view doctrine.
"When reviewing a motion to suppress, we view the evidence in the light most favorable to the government, accept the district court's findings of fact unless they are clearly erroneous, and review de novo the ultimate question of reasonableness under the Fourth Amendment." United States v. Pettit, 785 F.3d 1374, 1378–79 (10th Cir. 2015). "Once a magistrate judge determines probable cause exists, the role of a reviewing court is merely to ensure the [g]overnment's affidavit provided a ‘substantial basis’ for reaching that conclusion." United States v. Biglow , 562 F.3d 1272, 1281 (10th Cir. 2009) ; see also United States v. Riccardi, 405 F.3d 852, 860 (10th Cir. 2005) ().
The...
To continue reading
Request your trial
-
United States v. Henson
...1993) )). In any event, our prior holding in Nelson is sound. ... Other circuits have reached the same conclusion. United States v. Khan , 989 F.3d 806, 822 (10th Cir. 2021) (alteration in original) (additional citations and paragraph breaks omitted), petition for cert. filed , No. 21-5261 ......
-
United States v. Muhtorov
...argument that no warrant was required for the incidental collection of Mr. Muhtorov's communications. See United States v. Khan , 989 F.3d 806, 818 (10th Cir. 2021) (discussing the lack of an inadvertent discovery requirement for the plain view doctrine to apply).2) Foreign intelligence sur......
-
Ruan v. United States
...Kahn of the § 841 charges, and he was sentenced to 25 years in prison.The Tenth Circuit affirmed Kahn's convictions. See 989 F.3d 806, 812, 824–826 (C.A.10 2021). In doing so, the court held that to convict under § 841, the Government must prove that a doctor "either: (1) subjectively knew ......
-
United States v. Kahn
...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......
-
Pain Management or Pill Mill? Supreme Court to Weigh in on Standards for Prosecutions of Practitioners Prescribing Narcotics
...with the standards of medical practice generally recognized and accepted in the United States . . .”). [6] United States v. Kahn, 989 F.3d 806, 825 (10th Cir. 2021). [7] The approaches described herein largely track the patterns described in the Petition for Certiorari in Kahn. See Petition......
-
Review Proceedings
...in outcome where multiple witnesses corroborated each other and considerable circumstantial evidence implicated defendant); U.S. v. Khan, 989 F.3d 806, 828-29 (10th Cir. 2021) (new trial denied because any objectionable testimony followed by curative instruction, and evidence of guilt overw......