United States v. Andrew Sun , 673 F. App'x 729 ( 2016 )

FILED
NOT FOR PUBLICATION
DEC 23 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-50009
Plaintiff-Appellee, D.C. No. 2:14-cr-00157-R-1
v.
MEMORANDUM*
ANDREW SUN,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Argued and Submitted December 7, 2016
Pasadena, California
Before: PREGERSON, NGUYEN, and OWENS, Circuit Judges.
Andrew Sun, a doctor, appeals from his jury trial conviction for fourteen
counts of distributing controlled prescription drugs, in violation of 21 U.S.C.
§ 841(a)(1), and three counts of money laundering, in violation of 18 U.S.C.
§ 1956(a)(1)(B)(i). As the parties are familiar with the facts, we do not recount
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
them here. We affirm.
1. We reject Sun’s various challenges to the jury instructions regarding the
drug charges. The district court did not err in declining to provide Sun’s proposed
“good faith” instruction. “Our case law is well settled that a criminal defendant
has ‘no right’ to any good faith instruction when the jury has been adequately
instructed with regard to the intent required to be found guilty of the crime
charged[.]” United States v. Shipsey, 363 F.3d 962, 967 (9th Cir. 2004). The
district court’s other instructions adequately encompassed Sun’s good faith
defense, and his proposed good faith instruction misstated the law. See United
States v. Whittemore, 776 F.3d 1074, 1078, 1080 (9th Cir. 2015) (while “[a]
defendant is entitled to have the judge instruct the jury on his theory of defense,”
he is “not entitled to the instructions of his choice” (citation omitted)).
The district court also did not err in providing an instruction regarding
narcotic addiction treatment, which was nearly identical to one this court has
upheld as “properly stat[ing] the law.” United States v. Hayes, 794 F.2d 1348,
1352 (9th Cir. 1986). Contrary to Sun’s contention, this instruction was not
inconsistent with regulations concerning narcotic addiction treatment.
Further, the instructions adequately stated the standard for criminal liability
under 21 U.S.C. § 841(a)(1), and did not allow the jury to convict Sun based solely
2
on civil malpractice. See United States v. Feingold, 454 F.3d 1001, 1010-11 (9th
Cir. 2006) (holding that “the district court must ensure that the benchmark for
criminal liability is the higher showing that the practitioner intentionally has
distributed controlled substances for no legitimate medical purpose and outside the
usual course of professional practice” but “reaffirm[ing] that it is appropriate in
cases such as this for the jury to consider the practitioner’s behavior against the
benchmark of acceptable and accepted medical practice”).
Finally, the district court did not err in instructing that “good motive” alone
was not a defense, and that motive should only be considered to determine the
defendant’s intent or knowledge. See United States v. Pomponio, 429 U.S. 10, 11
(1976) (per curiam) (upholding similar instruction).
2. We also reject Sun’s challenges to the jury instructions regarding witness
credibility. The record belies Sun’s contention that the district court failed to give
any instruction regarding witness credibility in general.
In addition, the district court did not plainly err by failing to sua sponte issue
an instruction on the credibility of law enforcement witnesses because there was no
requirement for such an instruction here. See United States v. Olano, 507 U.S.
725, 730-36 (1993) (clarifying standard for plain error review); United States v. De
La Fuente, 353 F.3d 766, 769 (9th Cir. 2003) (“An error cannot be plain where
3
there is no controlling authority on point and where the most closely analogous
precedent leads to conflicting results.”). Sun’s reliance on “dual role” case law is
misplaced because the law enforcement expert witness did not also testify as a lay
witness. See United States v. Torralba-Mendia, 784 F.3d 652, 658-59 (9th Cir.
2015) (holding that “the district court committed plain error by not instructing the
jury on how to evaluate dual role testimony”).
3. The district court did not plainly err in admitting Sun’s records from his
prior disciplinary proceedings before the Medical Board of California (“MBC”).
See Olano, 507 U.S. at 730-36. Sun’s disciplinary records were admitted under
Federal Rule of Evidence 404(b) to prove Sun’s knowledge of the standard of care
and absence of mistake. Contrary to Sun’s contention, the district court did not
plainly err in admitting the disciplinary records based on hearsay or Federal Rules
of Evidence 408 or 403. Moreover, the jury was instructed on the limited purpose
for which it could consider the disciplinary records. See United States v.
Wahchumwah, 710 F.3d 862, 871 (9th Cir. 2012).
The MBC settlement agreement’s provision restricting its use did not
prevent the federal government from introducing the agreement as evidence. See
United States v. Cordova-Perez, 65 F.3d 1552, 1554 (9th Cir. 1995) (“[I]t is well
settled that states cannot bind the federal government to the terms of a plea
4
agreement to which the federal government is not a party.”), overruled on other
grounds as recognized by In re Gallagher, 548 F.3d 713, 718 n.7 (9th Cir. 2008).
4. The district court did not plainly err in allowing expert testimony on the
standards of care, including medical regulations, regarding prescribing controlled
substances and treating narcotic addiction because “only after assessing the
standards to which medical professionals generally hold themselves is it possible to
evaluate whether a practitioner’s conduct has deviated so far from the ‘usual course
of professional practice’ that his actions become criminal.” Feingold, 454 F.3d at
1007 (citation omitted).
The district court also did not plainly err in allowing the medical expert to
testify that Sun was not acting as a doctor when he wrote the prescriptions to the
undercover investigators. Contrary to Sun’s contention, the expert did not
improperly opine about Sun’s state of mind. See Fed. R. Evid. 704(b) (“In a
criminal case, an expert witness must not state an opinion about whether the
defendant did or did not have a mental state or condition that constitutes an
element of the crime charged or of a defense.”).
5. Finally, Sun argues that there is insufficient evidence to support his
convictions for concealment money laundering. “[T]he relevant question is
whether, after viewing the evidence in the light most favorable to the prosecution,
5
any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979).
Because Sun failed to move for a judgment of acquittal during the trial, we review
for plain error. United States v. Ross, 338 F.3d 1054, 1057 (9th Cir. 2003) (per
curiam).
Viewing the evidence in the light most favorable to the prosecution, a
rational jury could find that Sun deposited the illegal cash proceeds from his
medical practice into his personal bank account, rather than his business account,
with the purpose “to conceal or disguise the nature [or] . . . the source” of the
proceeds. 18 U.S.C. § 1956(a)(1)(B)(i); see also Regalado Cuellar v. United
States, 553 U.S. 550, 567 (2008) (holding for an analogous money laundering
provision that the government must prove “that the purpose – not merely effect –
of the [action] was to conceal or disguise a listed attribute”). From Sun’s statement
to investigators that he deposited the proceeds into his personal account to avoid
reporting them to the IRS, among other evidence, a rational jury could infer that
Sun had the purpose to conceal their illegal nature or source. See United States v.
Tekle, 329 F.3d 1108, 1113-14 (9th Cir. 2003) (rejecting the defendant’s argument
“that the government did not prove that he intended to conceal the illegal nature of
[drug trafficking] funds because the ‘transactions in question were open, notorious,
6
and did not disguise defendant’s identity’” as “[t]he necessary concealment . . . is
that of the source of the funds, not the identity of the money-launderer”).
Accordingly, for the money laundering convictions, we conclude that Sun
failed to satisfy the strict standard for sufficiency-of-the-evidence claims,
particularly given plain error review.
AFFIRMED.
7