                                                                           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                           NOT FOR PUBLICATION                              NOV 23 2011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




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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.




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