United States v. Sabean

• Decision Date: 16 March 2018
• Docket Number: No. 17-1484,17-1484
• Citation: 885 F.3d 27
• Parties: UNITED STATES of America, Appellee, v. Joel A. SABEAN, M.D., Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

885 F.3d 27

UNITED STATES of America, Appellee,

v.Joel A. SABEAN, M.D., Defendant, Appellant.

No. 17-1484

United States Court of Appeals, First Circuit.

March 16, 2018

Alfred C. Frawley IV, with whom Thimi R. Mina, Jay P. McCloskey, and McCloskey, Mina & Cunniff, LLC, Portland, ME, were on brief, for appellant.

Julia M. Lipez, Assistant United States Attorney, with whom Halsey B. Frank, United States Attorney, and Margaret D. McGaughey, Special Assistant United States Attorney, were on brief, for appellee.

Before Kayatta, Circuit Judge, Souter,^* Associate Justice, and Selya, Circuit Judge.

SELYA, Circuit Judge.

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 defendant-appellant Joel A. Sabean guilty on all of the charged counts.

The defendant strives to convince us, through a wide-ranging 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 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 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 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 drug-distribution 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.

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.

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 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, 108 S.Ct. 1496, 99 L.Ed.2d 771 (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. (quoti...