                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        SEP 14 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    16-30209

                Plaintiff-Appellee,             D.C. No.
                                                1:14-cr-00109-EJL-1
 v.

MICHAEL MINAS,                                  MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                             for the District of Idaho
                    Edward J. Lodge, District Judge, Presiding

                       Argued and Submitted August 29, 2017
                                Seattle, Washington

Before: McKEOWN and GOULD, Circuit Judges, and ROTHSTEIN,** District
Judge.

      Michael Minas, a physician, appeals his conviction on 80 counts of

distribution of a controlled substance. We have jurisdiction under 28 U.S.C. §

1291, and we affirm.



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Barbara Jacobs Rothstein, United States District Judge
for the Western District of Washington, sitting by designation.
      Physicians are subject to criminal prosecution under 21 U.S.C. § 841 when

their actions fall outside the usual course of professional practice and are

conducted with no legitimate medical purpose. United States v. Feingold, 454

F.3d 1001, 1003 (9th Cir. 2006) (citing United States v. Moore, 423 U.S. 122, 124

(1975)); see also 21 C.F.R. § 1306.04(a). The indictment tracked the language of §

841 and properly alleged that Minas acted outside the usual course of professional

practice and with no legitimate medical purpose.

      The district court properly denied Minas’s motion for a hearing under

Franks v. Delaware, 438 U.S. 154 (1978). Minas failed to show that the search

warrant affiant intentionally or recklessly made false statements or omitted

information in the affidavit.

      Minas objected to the district court’s admitting expert testimony related to

morphine equivalent dose (“MED”), the Idaho Board of Medicine’s Model Policy

on the use of opioid analgesics, and Idaho’s opioid epidemic. Where a defendant

objects before the trial court, we review evidentiary rulings for abuse of discretion.

United States v. Hankey, 203 F.3d 1160, 1166-67 (9th Cir. 2000). Where a

defendant fails to make a Rule 403 objection before the trial court, we review for

plain error. United States v. Gomez-Norena, 908 F.2d 497, 500 (9th Cir. 1990).

MED is a standard tool used to calculate the overall strength of opioid narcotics.

The Model Policy is nationally and locally recognized as reflecting the relevant,


                                          2                                    16-30209
usual course of professional practice. Testimony revealed that Idaho adopted the

Model Policy in part because of concerns over Idaho’s opioid epidemic.

Accordingly, this expert testimony was not only helpful to the jury, but was

necessary to assess whether Minas’s actions were criminal; and, therefore, the

district court properly admitted the testimony. See Feingold, 454 F.3d at 1007;

United States v. Boettjer, 569 F.2d 1078, 1082 (9th Cir. 1978).

      The government having presented ample evidence of Minas’s guilt through

the testimony of twenty-two witnesses, the district court did not err in concluding

that sufficient evidence supported the conviction. See Feingold, 454 F.3d at 1004-

06, 1012-13; see also United States v. Varma, 691 F.2d 460, 464 n.2 (10th Cir.

1982) (collecting cases). Nor did it err in denying Minas’s proposed jury

instruction that defined the “practice of medicine” in Idaho. The instruction would

have been confusing, and the instructions given fairly and adequately covered the

proper finding of intent. See Feingold, 454 F.3d at 1008.

      AFFIRMED.




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