FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MAINE [Hon. George Z. Singal, U.S. District Judge]
C. Frawley IV, with whom Thimi R. Mina, Jay P. McCloskey, and
McCloskey, Mina & Cunniff, LLC, were on brief, for
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
Kayatta, Circuit Judge, Souter, [*] Associate Justice, and Selya,
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
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.
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).
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.
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
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.
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
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. 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.
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.
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.
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
THE DISPUTED EVIDENTIARY RULINGS
subdivide our discussion of the disputed evidentiary rulings
into two segments, dealing first with rulings admitting
evidence and then with rulings excluding evidence.
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
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.
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.
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
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)).
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.
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
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,  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
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.
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.
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
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
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
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
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).
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).
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).
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