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United States v. Sabean

United States Court of Appeals, First Circuit

March 16, 2018

JOEL A. SABEAN, M.D., Defendant, Appellant.


          Alfred C. Frawley IV, with whom Thimi R. Mina, Jay P. McCloskey, and McCloskey, Mina & Cunniff, LLC, 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.


         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 (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. (quoting Huddleston, 485 U.S. at 686). Put another way, other-acts evidence must have "special relevance to an issue in the case, " such as motive, intent, absence of mistake, or knowledge. Id. (quoting United States v. Varoudakis, 233 F.3d 113, 118 (2000)).

         A finding of special relevance is a necessary - but not a sufficient - precondition for the admissibility of other-acts evidence. Rule 404(b) "incorporates sub silentio the prophylaxis of Federal Rule of Evidence 403." United States v. Sebaggala, 256 F.3d 59, 67 (1st Cir. 2001). It follows that even if other-acts evidence is specially relevant, the trial court may exclude that evidence if its probative value is substantially outweighed by potential evils such as unfair prejudice, jury confusion, or waste of time. See Fed.R.Evid. 403. Where, as here, objections to other-acts evidence have been preserved, our review of rulings admitting or excluding such evidence is for abuse of discretion. See Raymond, 697 F.3d at 36; Varoudakis, 233 F.3d at 118.

         The logical starting point for our inquiry in this case is the district court's conclusion that the evidence was sufficient to support a finding that the defendant sexually abused his daughter. As we have explained, "[w]hen the relevancy of evidence is conditioned on the establishment of a fact" - here, the fact that the defendant sexually abused S.S. - "the offering party need only introduce sufficient evidence to permit a reasonable jury to find the conditional fact by a preponderance of the evidence to establish that the evidence is relevant." United States v. Balthazard, 360 F.3d 309, 313 (1st Cir. 2004); see United States v. Trenkler, 61 F.3d 45, 53 (1st Cir. 1995). On this point, the defendant argues that no sufficient foundation was laid because S.S.'s testimony was incredible. He suggests that no reasonable juror could have believed S.S. in light of her history of committing perjury and engaging in other dishonest acts, and adds that no other basis existed on which to find that sexual abuse transpired.

         This argument is dead on arrival. With only narrow exceptions not pertinent here, credibility determinations are left to the wisdom of the jury. See United States v. Alicea, 205 F.3d 480, 483 (1st Cir. 2000); see also United States v. Scheffer, 523 U.S. 303, 313 (1998) (plurality opinion) (explaining that "the jury is the lie detector"). Thus, when a jury trial is underway, the court lacks the authority "to exclude evidence on the basis of [its] own belief as to the persuasiveness of that evidence." Blake v. Pellegrino, 329 F.3d 43, 47 (1st Cir. 2003). Although the jury in this case was presented with several reasons that might have led it to discredit S.S.'s testimony, [2] it was the jury's prerogative not to do so. After all, the jury's right to judge the credibility of witnesses is not restricted to circumstances in which the witness's testimony is flawless in every respect. See Alicea, 205 F.3d at 483. We conclude, therefore, that S.S.'s testimony, combined with the exhibits memorializing the salacious father-daughter correspondence, comprised a sufficient basis for a reasonable jury to find that the defendant had sexually abused his daughter.

         This brings us to the question of whether the other-acts evidence has special relevance to any disputed issue in the case. Evidence has "special relevance" when "it tends to prove a material fact apart from a mere propensity to behave in a certain way." United States v. Watson, 695 F.3d 159, 165 (1st Cir. 2012). A prime example of special relevance, pertinent here, is when evidence of other-act evidence is introduced "to complete the story of the crime on trial by proving its immediate context of happenings near in time and place." United States v. Goyner, 761 F.3d 157, 163 (1st Cir. 2014) (quoting United States v. D'Alora, 585 F.2d 16, 20 (1st Cir. 1978)). Such evidence may be particularly helpful when an actor's state of mind is at issue "and the only means of ascertaining that mental state is by drawing inferences from conduct." Huddleston, 485 U.S. at 685.

         Here, it is nose-on-the-face plain that the defendant's state of mind was a highly material and hotly disputed issue. All of the charged crimes required proof of scienter. See 26 U.S.C. § 7201; 21 U.S.C. § 841(a)(1); 18 U.S.C. § 1347. Moreover, the bedrock of the defense was that the defendant truly believed that S.S. needed both the money and the extensive medical treatment that he described.

         In an effort to change the trajectory of the debate, the defendant suggests that evidence of abuse was not probative of his intent to commit the charged crimes. This suggestion relies on the assertion that S.S. never provided direct testimony that sexual abuse was the reason for either the cash outlays or the bogus prescriptions; indeed, he collects snippets from the transcript in which she "testified to the contrary." In support of this suggestion, the defendant points out that S.S. indicated that she had never threatened to expose the incestuous relationship if her father stopped sending money and drugs. And at another point, S.S. said that the cash and drugs were not meant "to keep [her] quiet" but, rather, were meant to keep her "happy and comfortable."

         This suggestion misapprehends both the record and the law. With respect to the record, the defendant glosses over other testimony by S.S. that contravenes his synthesis of the transcript. By way of example, S.S. testified that there was an implied understanding between father and daughter that he would send her money and drugs so that she would engage in sexualized communications with him. S.S. also testified that her father threatened to cause her "big problems" and "cut [her] off" if she ever revealed his sexual abuse. Fairly viewed, S.S.'s testimony was a mixed bag - and it is apodictic that a jury may "credit some parts of a witness's testimony and disregard other potentially contradictory portions." Alicea, 205 F.3d at 483.

         With respect to the law, the infirmities of the defendant's argument are even more pronounced. Criminal defendants rarely shout their nefarious intentions from the rooftops. Here, the government was not required to introduce direct evidence connecting the defendant's disbursements of money and drugs to the incestuous relationship. Circumstantial evidence can suffice to forge such a link, and this jury had the right to infer motive or absence of mistake based on common-sense inferences drawn from evidence of the attendant circumstances. See, e.g., United States v. Cole, 631 F.3d 146, 155-56 (4th Cir. 2011); United States v. Sampson, 980 F.2d 883, 887-88 (3d Cir. 1992).

         Because our society abhors incestuous sexual abuse, the jury reasonably could have concluded that a perpetrator would be willing to pay a very steep price to buy the victim's silence. The jury likewise could have inferred, as a matter of common sense, that the defendant's desire to continue prurient communications with his daughter provided "at least some incentive" for his continued disbursements of cash and drugs. United States v. Potter, 616 F.2d 384, 387-88 (9th Cir. 1979) (finding evidence that physician had sex with patient and simultaneously prescribed drugs for her sufficient to support inference that sexual favors motivated prescriptions).

         Let us be perfectly clear. We recognize that the defendant's behavior was very far from the norm. But though (or perhaps because) that behavior was outrageous, proof of it was necessary to paint an accurate picture of what was transpiring. Without admission of the other-acts evidence, the jury would have been left with an incomplete picture as to why the defendant would funnel millions of dollars to his daughter despite warnings that he was hemorrhaging money, why he would tell his bookkeeper that the funds were for medical conditions that his daughter never experienced, and why he would prescribe highly addictive drugs in large quantities to a person with a drug habit without conducting anything resembling a medical examination of the putative patient. Telling the tale of this case without referring to sexual abuse would be like telling the tale of Abraham Lincoln's assassination at the hands of John Wilkes Booth without mentioning either the Civil War or the Emancipation Proclamation. The jury was entitled to the full picture, and we therefore conclude that the district court's determination of special relevance was within the encincture of its discretion. See Gonyer, 761 F.3d at 163 (approving admission of sex-abuse evidence without which the jury "would have been presented with an incomplete picture" of defendant's state of mind).

         This conclusion does not end our odyssey. Even if the other-acts evidence was probative and specially relevant, the defendant says that it should have been excluded as prejudicial. The question, though, is not prejudice simpliciter. Virtually all evidence is meant to be prejudicial, and Rule 403 only guards against unfair prejudice. See United States v. Winchenbach, 197 F.3d 548, 559 (1st Cir. 1999); United States v. Rodriguez-Estrada, 877 F.2d 153, 156 (1st Cir. 1989).

         The Supreme Court has described unfair prejudice in terms of "the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged." Old Chief v. United States, 519 U.S. 172, 180 (1997). Once a trial judge rejects a challenge based on Rule 403 and admits other-acts evidence that is both probative and specially relevant, appellate review is subject to a high bar: "[o]nly rarely - and in extraordinarily compelling circumstances - will we, from the vista of a cold appellate record, reverse a district court's on-the-spot judgment concerning the relative weighing of probative value and unfair effect." Winchenbach, 197 F.3d at 559 (quoting Freeman v. Package Mach. Co., 865 F.2d 1331, 1340 (1st Cir. 1988)). Since jurors are presumed to abide by the trial court's directions, see Richardson v. Marsh, 481 U.S. 200, 206 (1987), we are especially reluctant to find that the admission of relevant evidence constitutes an abuse of discretion where, as here, the trial court has given "suitably prophylactic instructions, " United States v. Mehanna, 735 F.3d 32, 64 (1st Cir. 2013).

         We do not gainsay that, in this case, a meaningful danger of unfair prejudice lurked. The admission of evidence that the defendant began sexually abusing his daughter when she was quite young and persisted in that abuse for many years surely carried a potential risk of inflaming the jury. Cf. United States v. Hands, 184 F.3d 1322, 1328 (11th Cir. 1999) (noting that domestic abuse is "particularly 'likely to incite a jury to an irrational decision'" (citation omitted)). Even so, the defendant's state of mind was a crucial issue, and the challenged evidence was not only relevant to that issue but also significantly probative of motive and absence of mistake. When the weighing of relevance and unfair prejudice results in mere equipoise, "Rule 403 tilts the balance in favor of admission." United States v. Whitney, 524 F.3d 134, 141 (1st Cir. 2008) (quoting United States v. Rivera, 83 F.3d 542, 545 (1st Cir. 1996)). Tilting the balance in the same direction are the cautionary instructions skillfully employed by the district court, which mitigated any risk of unfair prejudice. See ...

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