United States v. Nasher-Alneam

• Decision Date: 23 July 2019
• Docket Number: CRIMINAL NO. 2:18-00151
• Citation: 399 F.Supp.3d 561
• Court: U.S. District Court — Southern District of West Virginia
• Parties: UNITED STATES of America v. Muhammed Samer NASHER-ALNEAM, M.D.

399 F.Supp.3d 561

UNITED STATES of America

v.Muhammed Samer NASHER-ALNEAM, M.D.

CRIMINAL NO. 2:18-00151

United States District Court, S.D. West Virginia, at Charleston.

Signed July 23, 2019

Alan G. McGonigal, C. Haley Bunn, Jennifer Rada Herrald, Lisa G. Johnston, Meredith George Thomas, Steven I. Loew, Christopher R. Arthur, United States Attorney's Office, Charleston, WV, for United States of America.

Isaac Ralston Forman, Michael B. Hissam, Katherine B. Capito, Hissam Forman Donovan Ritchie, Charleston, WV, for Muhammed Samer Nasher-Alneam, M.D.

MEMORANDUM OPINION AND ORDER

David A. Faber, Senior United States District Judge

This matter is before the court on two motions in limine, one filed by defendant and the other filed by the United States. See ECF Nos. 238 and 247. Those motions are ripe for decision.

I. Background

Defendant Muhammed Samer Nasher-Alneam, M.D. ("Dr. Nasher") is a medical doctor licensed to practice medicine in the State of West Virginia. See ECF No. 223 at ¶ 1 (Third Superseding Indictment). From on or about July 2013 through February 2015, Dr. Nasher owned and operated a medical practice called "Neurology & Pain Center, PLLC," which, during that time, was located at 401 Division Street, Suite 202 in South Charleston, Kanawha County, West Virginia. Id. at ¶¶ 2-3. From about March 2015 through about February 2018, the defendant's medical practice was located at 4501 MacCorkle Avenue SE, Suite A, in Charleston, Kanawha County, West Virginia. See id. at ¶ 3. The defendant leased the office spaces described above and was the only practicing physician at Neurology & Pain Center, PLLC. See id. During the relevant time period, Dr. Nasher had an active Drug Enforcement Administration (DEA) registration number that allowed him to prescribe controlled substances, including Schedule II, III, IV, and V controlled substances. See id. at ¶ 8.

On July 26, 2018, the grand jury returned a 15-count indictment against Dr. Nasher arising out of his activities in connection with Neurology & Pain Center, PLLC. See ECF No. 1. A second superseding indictment was returned on November 21, 2018, charging defendant with illegal drug distributions, in violation of 21 U.S.C. § 841(a)(1) ; illegal drug distributions resulting in death, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) ; maintaining a drug-involved premises, in violation of 21 U.S.C. § 856(a)(1) ; and international money laundering, in violation of 18 U.S.C. § 1956(a)(2)(B)(ii).

Trial on the second superseding indictment began on April 16, 2019. A mistrial was declared on May 7, 2019.

After the declaration of a mistrial, on June 12, 2019, Dr. Nasher was charged in a forty-seven count third superseding indictment charging him with various offenses related to operation of his medical practice. Specifically, defendant was charged with the following:

1) health care fraud, in violation of 18 U.S.C. § 1347 and § 2 (Counts One through Eleven and Fifteen through Twenty-four);

2) health care fraud resulting in death, in violation of 18 U.S.C. § 1347 and § 2 (Counts Twelve through Fourteen);

3) illegal drug distributions, in violation of 21 U.S.C. § 841(a)(1) (Counts Twenty-five through Thirty-eight);

4) illegal drug distributions resulting in death, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) (Counts Thirty-nine through Forty-one);

5) maintaining a drug-involved premises, in violation of 21 U.S.C. § 856(a)(1) (Counts Forty-two and Forty-three); and

6) international money laundering, in violation of 18 U.S.C. § 1956(a)(2)(B)(ii) (Counts Forty-four through Forty-seven).

See ECF No. 223. The court granted defendant's motion for judgment of acquittal as to the money laundering counts and the corresponding counts in the third superseding indictment were dismissed. See ECF No. 231.

There has been and continues to be considerable disagreement between the parties as to the evidence that is admissible in this case. That disagreement is highlighted in several motions currently pending before the court: 1) defendant's motion in limine to preclude the government from offering evidence of his overall practice; and 2) the government's motion in limine to prohibit defendant from offering evidence of his noncriminal conduct. (ECF Nos. 238 and 247). The government has stated that its decision to seek a third superseding indictment arose out of adverse evidentiary rulings in the prior trial that are addressed in these motions in limine. See ECF Nos. 248 and 215-2. (noting that "its objective in seeking a third superseding indictment would be to address new circumstances occasioned by adverse evidentiary rulings during the trial of this case").

II. Legal Standards

The touchstone for the admissibility of evidence is relevance. See Fed. R. Evid. 402 (Subject to certain limited exceptions, "[r]elevant evidence is admissible ... Irrelevant evidence is not admissible."). Evidence is relevant if "it has any tendency to make a fact more or less probable than it would be without the evidence" and "the fact is of consequence in determining the action." Fed. R. Evid. 401. "The governing hypothesis of any criminal prosecution, for the purpose of determining relevancy of evidence introduced, consists of elements of the offense charged and any relevant defenses raised to defeat criminal liability." United States v. Lamberty, 778 F.2d 59, 60-61 (1st Cir. 1985). The "basic standard of relevance ... is a liberal one." Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 587, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

Federal Rule of Evidence 403 outlines several reasons which permit a court to exclude otherwise relevant evidence. According to that rule, a "court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." Fed. R. Evid. 403. "Because the evidence sought to be excluded under Rule 403 is concededly probative, the balance under Rule 403 should be struck in favor of admissibility, and evidence should be excluded only sparingly." United States v. Aramony, 88 F.3d 1369, 1378 (4th Cir. 1996).

III. Discussion

Even a physician licensed under the Controlled Substances Act ("CSA" or "the Act") can be prosecuted under the Act. See United States v. Moore, 423 U.S. 122, 124, 96 S.Ct. 335, 46 L.Ed.2d 333 (1975) (holding "that registered physicians can be prosecuted under § 841 when their activities fall outside the usual course of professional practice"); see also United States v. Tran Trong Cuong, 18 F.3d 1132, 1137 (4th Cir. 1994) ("[A] licensed physician who prescribes controlled substances outside the bounds of his professional medical practice is subject to prosecution and is no different than a large-scale pusher.") (internal quotation and citation omitted). Of the government's burden of proof to convict a defendant under § 841(a)(1),

the prosecution is obliged to prove "that (1) [the] defendant knowingly or intentionally distributed the controlled substance alleged in the indictment, and (2) at the time of such distribution the defendant knew that the substance distributed was a controlled substance under the law." United States v. Tran Trong Cuong, 18 F.3d 1132, 1137 (4th Cir. 1994). An enhanced analysis applies, however, to persons who are properly registered with the DEA. Pursuant to 21 U.S.C. § 822, such persons—including doctors—are authorized to distribute controlled substances to the extent authorized by their registrations....

United States v. Alerre, 430 F.3d 681, 689 (4th Cir. 2005). Therefore, in order to obtain a conviction of Dr. Nasher under 21 U.S.C. § 841(a)(1), the government must prove that he: (1) knowingly or intentionally distributed a controlled substance; (2) with knowledge that it was controlled under the law; and (3) that he did so "outside the usual course of professional practice." United States v. McIver, 470 F.3d 550, 556 (4th Cir. 2006) (quoting Moore, 423 U.S. at 124, 96 S.Ct. 335 ). "[A] doctor's good faith generally is relevant to a jury's determination of whether the doctor acted outside the bounds of medical practice or with a legitimate medical purpose when prescribing narcotics." United States v. Hurwitz, 459 F.3d 463, 476 (4th Cir. 2006).

With respect to a conviction under 21 U.S.C. § 856, the government must prove that Dr. Nasher: (1) opened, leased, rented, used, or maintained the premises identified in the indictment, either permanently or temporarily; (2) did so knowingly; and (3) did so for the purpose of illegally distributing the controlled substances identified in the indictment not for legitimate medical purposes in the usual course of professional medical practice and beyond the bounds of medical practice. The government does not have to prove that illegal drug dealing was the sole purpose for which Dr. Nasher maintained his medical practice. However, it must prove beyond a reasonable doubt that illegal drug dealing was a primary or principal reason the defendant maintained his medical practice. See Tr. 189-5; see also United States v. Russell, 595 F.3d 633, 644 (6th Cir. 2010).

In United States v. Robinson, 255 F. Supp. 3d 199, 201 (D.D.C. 2017), a case cited by defendant and relied on previously by the court, the defendant was charged with 61 counts of writing prescriptions for oxycodone outside the usual course of professional practice and not for a legitimate medical purpose, in violation of 21 U.S.C. § 841(a)(1). Relying on Federal Rule of Evidence 403, the Robinson court prohibited the government from offering "evidence of Defendant's ‘practice as a whole[.]’ " Id. at 202. The court found "that the probative value of this Rule 404(b) evidence is substantially outweighed by these dangers to the extent it implicates Defendant's entire practice (including some 1,800 patients). To allow the government to present evidence implicating hundreds of...