NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,

Plaintiff

- Appellee,

v. MICHAEL MINAS,

Defendant

- Appellant. No. 16

- 30209
D.C. No. 1:14

- cr - 00109

- EJL

- 1

MEMORANDUM *

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.
Mich ael 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. 

# FILED

SEP 14 2017 MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL S2 16

- 30209

Physicians are subject to criminal prosecution under 21 U.S.C. § 841 when
their actions f

all 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
Fra nks 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 abus e of discretion. United States v. Hankey , 203 F.3 d 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,3 16

- 30209

usual course of professional practice. Testimony revealed that Idaho adopted the
Model Po licy 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 o f twenty

- two witnesses, the di strict court did not err in concluding
that sufficient evi dence 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.