United States v. Masoud Bamdad

FILED
NOT FOR PUBLICATION NOV 23 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-50373
Plaintiff - Appellee, D.C. No. 2:08-cr-00506-GW-1
v.
MEMORANDUM *
MASOUD BAMDAD,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 10-50396
Plaintiff - Appellee, D.C. No. 2:08-cr-00506-GW-1
v.
MASOUD BAMDAD,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Argued and Submitted November 15, 2011
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: GOODWIN, W. FLETCHER, and RAWLINSON, Circuit Judges.
Masoud Bamdad, M.D., appeals his conviction and sentence for illegally
prescribing oxycodone in violation of 21 U.S.C. §§ 841 and 853.
The jury convicted Bamdad on ten counts of illegally prescribing oxycodone
and three counts of illegally prescribing oxycodone to persons under twenty-one years
old. The jury hung on four other counts, including count 19—alleging illegal
distribution resulting in death. The jury also convicted Bamdad on one count of
criminal forfeiture of his medical office building. The district court sentenced
Bamdad to 300 months (25 years) in custody and a $1 million fine, in addition to the
forfeiture of his interest in the medical building.
First, Bamdad claims that the evidence presented at trial was insufficient to
support his convictions. Second, Bamdad argues that the district court’s decision not
to give a cautionary instruction regarding playback of the government’s undercover
tapes during jury deliberation was reversible error. Third, Bamdad asserts that some
of the government’s evidence regarding count 19, the “death count”, resulted in
retroactive misjoinder due to prejudicial spillover. Fourth, Bamdad assigns error to
the denial of his motion to suppress based on an alleged defective search warrant.
Finally, Bamdad challenges his sentence as an erroneous application of the Guidelines
2
and as substantively unreasonable. We have jurisdiction under 28 U.S.C. § 1291. For
the following reasons, we affirm.
The sufficiency of the evidence argument fails because the government
introduced more than ample evidence to support the convictions. Viewed in the light
most favorable to the prosecution, the evidence—including oxycodone prescriptions
signed by Bamdad, undercover tapes, expert and percipient witness testimony, and
documents seized in a search of Bamdad’s medical office—supports the conclusion
that Bamdad prescribed oxycodone outside the usual course of professional practice
and without a legitimate medical purpose. See United States v. Feingold, 454 F.3d
1001, 1008 (9th Cir. 2006).
Before playback of undercover video tapes during jury deliberations, a trial
court should caution the jury that it should not give such evidence undue emphasis.
United States v. Richard, 504 F.3d 1109, 1113 (9th Cir. 2007). Both parties requested
a cautionary instruction for the jury to weigh all the evidence and not to focus on any
particular portion of the trial, but the court failed to give that instruction. The failure
was not the best practice, in light of our precedent. See United States v. Stinson, 647
F.3d 1196, 1217-18 (9th Cir. 2011); United States v. Newhoff, 627 F.3d 1163, 1167-68
(9th Cir. 2010) (summarizing previous cases). None of our cases, however, hold that
refusal to give a cautionary instruction in these circumstances is per se reversible
3
error. See Richard, 504 F.3d at 1114; Newhoff, 627 F.3d at 1168; United States v.
Barker, 988 F.2d 77, 79-80 (9th Cir. 1993). Therefore, in light of the district court’s
stated reasons for not giving the instruction and the abundant evidence supporting
conviction, the district court’s omitted instruction amounts to harmless error. See
Stinson, 647 F.3d at 1217-18.
Bamdad’s argument for a new trial based on the doctrine of retroactive
misjoinder is unavailing. Retroactive misjoinder “arises where joinder of multiple
counts was proper initially, but later developments—such as a district court’s
dismissal of some counts for lack of evidence or an appellate court’s reversal of less
than all convictions—render the initial joinder improper.” United States v. Lazarenko,
564 F.3d 1026, 1043 (9th Cir. 2009) (internal citation omitted). The district court did
not err in finding that the counts were properly joined because the offenses were of
similar character—namely, acting in a criminal manner outside the usual course of a
medical practice. See, e.g., United States v. Kaplan, 895 F.2d 618, 621 (9th Cir.
1990). Later developments at trial did not render that initial joinder improper nor did
the district court abuse its discretion in finding that prejudicial spillover did not occur.
Therefore, we find no basis for applying retroactive misjoinder and granting Bamdad
another trial.
4
No Fourth Amendment violations were established concerning the search
warrant. The affidavit adequately describes the locations to be searched, the items to
be seized, and sufficiently states the underlying probable cause for searches of
Bamdad’s medical office, home, and vehicles. Therefore, the district court correctly
denied the motion to suppress.
None of Bamdad’s sentencing challenges reveals a procedural error. The
district court accurately calculated the Guidelines range and adequately explained
Bamdad’s below Guidelines sentence. See United States v. Carty, 520 F.3d 984, 993
(9th Cir. 2008). Furthermore, Bamdad’s custodial sentence and fine were not
substantively unreasonable in light of the evidence and the district court’s
consideration of similar cases and the § 3553(a) factors.
AFFIRMED.
5