United States v. Arif ( 2021 )


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  • Case: 19-20662     Document: 00516149915         Page: 1     Date Filed: 12/30/2021
    United States Court of Appeals
    for the Fifth Circuit
    _____________                          United States Court of Appeals
    Fifth Circuit
    No.19-20662
    FILED
    December 30, 2021
    consolidated with
    No.21-20120                             Lyle W. Cayce
    Summary Calendar                               Clerk
    _____________
    United States of America,
    Plaintiff—Appellee,
    versus
    Muhammad Arif,
    Defendant—Appellant.
    Appeals from the United States District Court
    for the Southern District of Texas
    USDC No. 4:17-CR-388-3
    Before Smith, Stewart, and Graves, Circuit Judges.
    Per Curiam:*
    Muhammad Arif was convicted by a jury of conspiring to unlawfully
    distribute controlled substances, including Hydrocodone (also known as
    Norco) and Carisoprodol (also known as Soma), not for a legitimate medical
    *
    Pursuant to 5th Circuit Rule 47.5, the court has determined that this
    opinion should not be published and is not precedent except under the limited
    circumstances set forth in 5th Circuit Rule 47.5.4.
    Case: 19-20662      Document: 00516149915           Page: 2    Date Filed: 12/30/2021
    No. 19-20662
    c/w No. 21-20120
    purpose and outside the scope of professional practice. The jury also
    convicted him of three counts of distributing and dispensing Norco and Soma
    not for a legitimate medical purpose and outside the scope of professional
    practice, and aiding and abetting. The district court sentenced Arif to
    concurrent 96-month terms of imprisonment on all counts, to be followed by
    a two-year term of supervised release.
    On appeal, Arif asserts that the evidence is insufficient to support his
    convictions. Although Arif moved for a judgment of acquittal at the
    conclusion of the Government’s case-in-chief, he did not renew his motion
    at the close of all the evidence; this results in plain error review on appeal.
    See United States v. Smith, 
    878 F.3d 498
    , 502-03 (5th Cir. 2017).
    Under the plain error standard, Arif must show an error that is clear
    or obvious—rather than subject to reasonable dispute—and affects his
    substantial rights. See Puckett v. United States, 
    556 U.S. 129
    , 135 (2009). If
    he makes that showing, this court has the discretion to correct the error only
    if it “seriously affects the fairness, integrity or public reputation of judicial
    proceedings.” 
    Id.
     (internal quotation marks and citation omitted).
    For insufficient evidence to rise to the level of plain error, there must
    have been a “manifest miscarriage of justice.” United States v. Phillips, 
    477 F.3d 215
    , 219 (5th Cir. 2007) (internal quotations marks and citation
    omitted); see Smith, 878 F.3d at 503. A manifest miscarriage of justice occurs
    when “the record is devoid of evidence pointing to guilt or contains evidence
    on a key element of the offense that is so tenuous that a conviction would be
    shocking.” United States v. Vasquez, 
    766 F.3d 373
    , 377 (5th Cir. 2014)
    (internal quotation marks and citation omitted); see Smith, 878 F.3d at 503.
    The elements of the offense of conspiring to distribute and dispense
    controlled substances outside the scope of professional practice are: “(1) an
    2
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    c/w No. 21-20120
    agreement by two or more persons to unlawfully distribute or dispense a
    controlled substance outside the scope of professional practice and without a
    legitimate medical purpose; (2) the defendant's knowledge of the unlawful
    purpose of the agreement; and (3) the defendant's willful participation in the
    agreement.” United States v. Oti, 
    872 F.3d 678
    , 687 (5th Cir. 2017). In order
    to convict Arif of the substantive offenses, the Government was required to
    prove that Arif (1) distributed or dispensed a controlled substance (or aided
    and abetted such acts), (2) acted knowingly or intentionally, and (3) did so
    other than for a legitimate medical purpose or outside the usual course of
    professional practice. See United States v. Evans, 
    892 F.3d 692
    , 703 (5th Cir.
    2018); 
    18 U.S.C. § 2
    (a).
    Arif argues that the evidence is insufficient to support his convictions
    because it fails to show that he knew that the prescriptions written for Norco
    and Soma lacked a legitimate purpose, or that the prescriptions were being
    provided outside the course of professional practice. Arif concedes that he
    received some medical training in Pakistan, but he argues that the record does
    not show that he was aware of customary pain management policies in the
    United States. He contends that the record shows that he operated at the
    direction of a doctor and that treating patients with Norco and Soma was the
    standard practice of doctors at the clinic where he was employed. As to the
    three substantive counts, Arif raises the argument that, because he was a non-
    registrant who was not authorized to dispense controlled substances, he
    could be convicted only on an aiding and abetting theory, not as a principal.
    At trial, there was testimony that Arif filled out prescription forms
    that had been pre-signed by a doctor who worked at the same clinic, that Arif
    filled out the forms after seeing patients for five to ten minutes, that he did
    not have a medical license in Texas (although he claimed to have been a
    doctor in Pakistan), and that he consistently prescribed both Norco and
    3
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    Soma. There was also evidence that Arif had telephone contact with the
    drivers who brought patients to the clinic, and that he knew that the drivers
    ultimately received the prescriptions written for the patients. Additionally,
    the Government’s medical expert opined that there was no medical
    indication for the combination of Norco and Soma, because together these
    drugs are a dangerous combination that involves an increased risk of
    overdose. The medical expert also testified that prescriptions for Norco and
    Soma were outside the scope of professional practice and not for any
    legitimate medical purpose. Given the foregoing, far from being devoid of
    evidence, see Vasquez, 766 F.3d at 377, there is ample evidence showing that
    Arif knowingly and voluntarily joined in a conspiracy to unlawfully distribute
    and dispense controlled substances not for a legitimate purpose and outside
    the course of professional practice. See Oti, 872 F.3d at 686-89.
    As to the three substantive counts, we also conclude that the evidence
    is sufficient to establish Arif’s guilt.1 “A conviction for aiding and abetting
    requires proof that the substantive offense occurred and that the defendant
    (1) associated with the criminal venture; (2) purposefully participated in the
    crime; and (3) sought by his actions for it to succeed.” United States
    v. Daniels, 
    930 F.3d 393
    , 403 (5th Cir. 2019) (internal quotation marks and
    citation omitted); see 
    18 U.S.C. § 2
    (a). “Typically, the same evidence will
    support both a conspiracy and an aiding and abetting conviction.” United
    States v. Scott, 
    892 F.3d 791
    , 799 (5th Cir. 2018) (internal quotation marks
    omitted).
    1
    Because we determine that the evidence is sufficient to establish Arif’s guilt on
    the three substantive counts under an aiding and abetting theory, we do not consider the
    sufficiency of the evidence as to these counts under other theories of criminal liability.
    4
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    Here, there was evidence to establish that Arif, who was medically
    trained, filled out prescription forms for Norco and Soma on the dates in
    question, that those forms were signed by a doctor who worked at the same
    clinic, and that these prescriptions were not for a legitimate medical purpose
    and were issued outside the scope of professional practice.      Because the
    record is not “devoid of evidence pointing to guilt” and does not “contain[]
    evidence on a key element of the offense that is so tenuous that a conviction
    would be shocking,” the evidence is sufficient under the applicable standard
    of review. See Vasquez, 766 F.3d at 377.
    AFFIRMED.
    5
    

Document Info

Docket Number: 21-20120

Filed Date: 12/30/2021

Precedential Status: Non-Precedential

Modified Date: 12/31/2021