United States v. Kalantari

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 10, 2026
• Docket: 24-7125
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED MAR 10 2026 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 24-4365 D.C. No. Plaintiff - Appellee, 2:18-cr-00375-AB-4 v. MEMORANDUM* SHAHRIAR KALANTARI, AKA Michael Kalantari,

Defendant - Appellant.

UNITED STATES OF AMERICA, No. 24-7125 Plaintiff - Appellee, D.C. No. 2:18-cr-00375-AB-4 v.

SHAHRIAR KALANTARI, AKA Michael Kalantari,

Appeal from the United States District Court for the Central District of California André Birotte, Jr., District Judge, Presiding

Argued and Submitted December 9, 2025

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Pasadena, California

Before: M. SMITH, CHRISTEN, and FORREST, Circuit Judges.

Defendant-Appellant Michael Kalantari was convicted by jury of one count

of conspiracy to commit health care fraud in violation of 18 U.S.C. § 1349, three

counts of health care fraud in violation of 18 U.S.C. § 1347, and one count of

conspiracy to engage in the unlicensed wholesale distribution of prescription drugs

in violation of 18 U.S.C. § 371 and 21 U.S.C. §§ 331(t), 333(b)(1)(D), and

353(e)(1)(A). On appeal, Kalantari challenges his convictions, the district court’s

denial of his motion for a new trial based on newly discovered evidence, the

district court’s denial of an evidentiary hearing after Kalantari moved for a new

trial, and his sentence. Because the parties are familiar with the facts of this case,

we do not recount them here except as necessary to provide context for our ruling.

We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We

affirm in part, reverse in part, and remand.

1. Reviewing for plain error, see Fed. R. Crim. P. 52(b), we first hold

that the government did not plainly err by failing to correct false testimony from its

key witness, Yigal Keren, in violation of Kalantari’s due process rights pursuant to

Napue v. Illinois, 360 U.S. 264, 272 (1959). To establish a Napue violation, a

defendant must demonstrate that: (i) the testimony was false; (ii) the government

knew or should have known that the testimony was false; and (iii) the testimony

2 24-4365 was material, “meaning there is a ‘reasonable likelihood that the false testimony

could have affected the judgment of the jury.’” United States v. Renzi, 769 F.3d

731, 751 (9th Cir. 2014) (quoting United States v. Houston, 648 F.3d 806, 814 (9th

Cir. 2011)).

We start with Keren’s testimony regarding his characterization of “patients”

versus “guests” at SOUL Housing, which we do not find “so clearly or obviously

false such that [Kalantari] has demonstrated plain error.” United States v. Holmes,

163 F.4th 547, 574 (9th Cir. 2025). Regarding Keren’s testimony’s about whether

he told Gary that he had “active” and “standby” patients, we conclude that, even if

Keren’s testimony on this topic was false, Kalantari has failed to demonstrate that

it was plainly material. See Houston, 648 F.3d at 814–15. Keren acknowledged

on cross-examination that he “told people that [he] had 500 patients.”

We likewise conclude that Kalantari has not established a plain Napue

violation with Keren’s denial that Kalantari asked to review patient files to see if

they were real, Keren’s testimony about whether the patient files came from a

“marketer,” and Keren’s testimony about whether he understood “the concept of

the medical concierge.” Kalantari’s counsel impeached Keren with his prior

inconsistent statements on these topics. Thus, Kalantari has not established a

reasonable likelihood that the testimony “could have affected the judgment of the

jury.” Holmes, 163 F.4th at 573 (internal quotations omitted).

3 24-4365 Last, we conclude that Kalantari has not established a plain Napue violation

with Keren’s testimony that Kalantari would receive 33% of the black-market sales

price. We are not persuaded that Kalantari’s testimony about the payment scheme

was plainly false, but even if it were false, Kalantari has not demonstrated that it

was plainly material. Keren stated at other points during his testimony that

Kalantari was paid $200 per prescription, and Kalantari’s counsel highlighted this

testimony by impeaching Keren based on his prior testimony to FBI agents that

Kalantari would be paid “$250 a prescription.”

2. “We review de novo whether a jury instruction misstates the law,” but

“review the language and formulation of a jury instruction for abuse of discretion.”

United States v. Rodriguez, 971 F.3d 1005, 1012 (9th Cir. 2020) (internal quotation

omitted). We are not persuaded that the district court’s limiting instruction

pursuant to Federal Rule of Evidence 404(b) was an erroneous statement of the law

nor that the district court abused its discretion in giving it. The instruction tracks,

albeit not exactly, the language in Ninth Circuit Pattern Jury Instruction 2.10 (2022

ed.). According to Kalantari, the pattern instruction requires the district court to

make choices to tailor the instruction to the evidence in each case. However, he

does not persuasively explain why the district court’s decision not to tailor the

limiting instruction here rendered the instruction “misleading or inadequate to

guide the jury’s deliberations.” United States v. Marsh, 26 F.3d 1496, 1502 (9th

4 24-4365 Cir. 1994) (internal quotations omitted).

Kalantari also argues that the limiting instruction was an abuse of discretion

because it improperly characterized his statements in the relevant recordings as

“acts,” and it did so without evidence for the jury to conclude that Kalantari

engaged in such acts beyond a reasonable doubt. Again, this argument is

unpersuasive. The limiting instruction describes the relevant “evidence” as

Kalantari’s “statements.” It does not, as Kalantari suggests, improperly invite the

jury to conclude that Kalantari actually committed the acts contemplated in his

statements without evidence. Regardless, even if it did, the error was harmless.

See United States v. Hamilton, 171 F. Appx. 556, 558 (9th Cir. 2006) (mem.)

(citing United States v. Washington, 106 F.3d 1488, 1490 (9th Cir. 1997) (per

curiam)). Keren testified that they did not follow through with Kalantari’s

proposals, and Kalantari’s counsel argued during closing that “nothing happened”

and the statements in the recordings were “not true.”

3. Reviewing for abuse of discretion, see United States v. Mack, 362

F.3d 597, 600 (9th Cir. 2004), we affirm the district court’s decision to deny a new

trial after the parties discovered a mistake with the Medi-Cal claims data that the

government presented at trial. Newly discovered evidence warrants a new trial if

the defendant can establish: “(1) the evidence is newly discovered; (2) the

defendant was diligent in seeking the evidence; (3) the evidence is material to the

5 24-4365 issues at trial; (4) the evidence is not (a) cumulative or (b) merely impeaching; and

(5) the evidence indicates the defendant would probably be acquitted in a new

trial.” United States v. Hinkson, 585 F.3d 1247, 1264 (9th Cir. 2009) (en banc).

As the government argues, the two substantive Medi-Cal health-care fraud

counts were associated with beneficiaries that “had never otherwise received a

prescription from Kwon, never filled a prescription at Ultimate Pharmacy, and

never received a prescription for HIV treatment.” This is true regardless of the

number of claims billed as shown in Government Exhibit 204. Thus, the district

court did not abuse its discretion in concluding that Kalantari had not established

that he would probably be acquitted in a new trial without Exhibit 204. See id.

Moreover, to the extent that Kalantari’s challenge relies on Government Exhibit

1003, plain error review applies because Kalantari did not challenge that exhibit

before the district court. See Fed. R. Crim. P. 52(b). We likewise conclude that

the district court did not plainly err with respect to Exhibit 1003 because other

evidence in the record supports each verdict. Thus, we are not persuaded that

absent Exhibit 1003, Kalantari would probably be acquitted in a new trial. See

Hinkson, 585 F.3d at 1264.

4. Kalantari argues that cumulative error requires reversal based on the

government’s Napue violations, improper 404(b) limiting instruction, and denial of

his motion for a new trial. However, because we conclude that the district court

6 24-4365 did not err in each instance, there is no error to cumulate. See United States v.

Lindsay, 931 F.3d 852, 869 (9th Cir. 2019).

5. We next consider the district court’s jury instruction on the mens rea

required for conspiracy to engage in the unlicensed wholesale distribution of

prescription drugs in violation of 18 U.S.C. § 371 and 21 U.S.C. §§ 331(t),

333(b)(1)(D), and 353(e)(1)(A). We review this issue for plain error, United States

v. Gear, 9 F.4th 1040, 1047 (9th Cir. 2021) (per curiam), and may reverse only if

(i) there was error; (ii) that is plain; and (iii) that affects substantial rights, see

Jones v. United States, 527 U.S. 373, 389 (1999). We also “exercise [our]

discretion to correct plain error only if it seriously affects the fairness, integrity, or

public reputation of judicial proceedings.” Id. (citation modified).

The error here was plain. Conspiracy under 18 USC § 371 is, “by definition,

a specific intent crime.” United States v. Little, 753 F.2d 1420, 1443 (9th Cir.

1984). The “defendant must intend to agree and must intend that the substantive

offense be committed.” Ocasio v. United States, 578 U.S. 282, 288

(2016) (citation modified). To constitute a felony, the underlying offense—

Section 333(b)(1)(D)—requires specific intent that Kalantari “knowingly” engaged

in or caused another person to engage in unlicensed wholesale distribution of

prescription drugs. Without knowledge that the distribution would be unlicensed,

7 24-4365 the underlying offense here constitutes a misdemeanor subject to lesser penalties.

See 21 U.S.C. §§ 331(t), 353(e)(1).

The district court did not instruct the jury that Kalantari must know the

distribution would be unlicensed. Thus, the first two steps of the plain error

inquiry are satisfied. See United States v. Vazquez-Hernandez, 849 F.3d 1219,

1225 (9th Cir. 2017) (“Jury instructions misstate the essential elements of an

offense when they do not adequately link the intent element of a crime with the

required object of that intent.”).

Whether this error affected Kalantari’s substantial rights—that is, whether

there is “a reasonable probability that, but for the error, the outcome of the

proceeding would have been different,” Gear, 9 F.4th at 1047 (internal quotations

omitted)—depends on whether there is “strong and convincing evidence that the

prosecution has adequately proved the missing element of the crime,” United

States v. Conti, 804 F.3d 977, 981 (9th Cir. 2015) (emphasis added) (internal

quotations omitted). The evidence at Kalantari’s trial does establish that his co-

conspirators did not have license to distribute prescription drugs, but it does not

demonstrate that Kalantari knew this fact. Cf. United States v. Hegwood, 977 F.2d

492, 497–98 (9th Cir. 1992) (“Knowledge of the purpose behind the conspiracy is

an essential element of the crime, and evidence of knowledge must be clear. The

8 24-4365 mere presence of a defendant in suspicious circumstances is not enough to imply

knowledge.” (internal quotations and citation omitted)).

The Government’s argument that the jury instructions “as a whole”

adequately mitigate any error fails to persuade. As we explained in United States

v. Kim, 65 F.3d 123, 126 (9th Cir. 1995), “[t]he use of [knowingly] in the

conspiracy instruction refers to the joining in the agreement, not the mens rea of

the substantive offense.” The instructions allowed the jury to find that Kalantari

knew the unlawful purpose of the conspiracy without explicitly finding that

Kalantari knew Sadovsky was not licensed to distribute the drugs wholesale. See

id. (explaining that “knowledge of the unlawful purpose of the conspiracy does not

instruct the jury to explicitly find knowledge of” an essential element of the

offense). As in Kim, the jury instructions for Kalantari’s conspiracy offense did

not remedy the error because the instruction “necessarily refer[red the jury] to the

erroneous definition of the substantive offense.” Id.

Finally, this instructional error “seriously affect[ed] the fairness, integrity or

public reputation of judicial proceedings.” United States v. Atkinson, 297 U.S.

157, 160 (1936). The Government’s evidence leaves it “open to debate” whether

Kalantari had the requisite mental state to prove the offense. United States v.

Murphy, 824 F.3d 1197, 1205 (9th Cir. 2016). The lack of proper instruction on

this issue denied Kalantari “his constitutional right to have all elements of the

9 24-4365 crime submitted to the jury, while the government was concomitantly relieved of

its obligation to prove every element beyond a reasonable doubt.” Id. (internal

quotations omitted). Therefore, we remand for the limited purpose of resentencing

Kalantari on Count 5 as a misdemeanor.

6. Having also reviewed and evaluated the materials considered by the

district court, we conclude that the district court did not abuse its discretion related

to the government’s in camera, ex parte motion pursuant to the Classified

Information Protection Act, 18 U.S.C. app. 3 § 4. See United States v.

Alahmedalabdaloklah, 94 F.4th 782, 810–11 (9th Cir. 2024), cert. denied, 145 S.

Ct. 770 (2024).

7. Reviewing for abuse of discretion, United States v. Mazzarella, 784

F.3d 532, 537 (9th Cir. 2015), we affirm the district court’s decision to deny an

evidentiary hearing on Kalantari’s claim that the government suppressed material

impeachment evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963).

The district court concluded that there was no suppression of Brady material. But

Kalantari argues that the district court should have held an evidentiary hearing

because he raised a factual dispute. We find Kalantari’s argument to be

unavailing. The district court did not deny the motion merely because it was not

convinced by Jodie Goldstein’s memory; it denied the motion because the

presented documents did not demonstrate that the timeline offered by Goldstein

10 24-4365 was accurate and because it was not convinced that the allegedly suppressed

information “would have substantially altered the verdict in this case.”

8. Finally, we conclude that the district court did not err in its calculation

of the United States Sentencing Guidelines. Kalantari was sentenced to

imprisonment for 23 months, which was a downward departure from the advisory

Sentencing Guidelines range. The district court added offense levels pursuant to

U.S.S.G. § 2B1.1(b)(1)(G), because it determined that the offenses resulted in

approximately $254,532 in loss. On appeal, Kalantari challenges the district

court’s: (i) loss amount calculation for Count 5; (ii) failure to apply a reduction for

uncompleted conspiracies; and (iii) denial of his request for a mitigating role

adjustment. We affirm.

First, the district court did not err by finding that Count 5 caused, or was

intended to cause, a “loss,” and it did not err in its calculation of such “loss.”

Kalantari’s argument that the loss calculation represents the “intended gain [to the

conspirators] associated with Count 5” is unavailing. Even if we accept that the

intended loss in Count 5 is not a loss to Medicare or Medi-Cal, that does not mean

that there is no quantifiable loss. As the commentaries to the Sentencing

Guidelines suggest, see U.S.S.G. § 2B1.1 cmt.3(E)(v), (vi), the sale of unlicensed

prescription drugs results in a loss to the regulated, secure supply chain. We hold

that the district court did not clearly err in its calculation of the intended loss based

11 24-4365 on the value the conspirators presented to their intended buyers. See United States

v. Clayton, 108 F.3d 1114, 1118–19 (9th Cir. 1997). Kalantari’s argument instead

goes toward whether the counts were properly grouped for Guidelines purposes

pursuant to U.S.S.G. § 3D1.2(b), not toward whether Count 5 led to a “loss.” The

district court did not plainly err in using “intended loss” to quantify loss. See

United States v. Hackett, 123 F.4th 1005, 1011–15 (9th Cir. 2024).

Next, we conclude that the district court did not plainly err by failing to

apply the three-level reduction that U.S.S.G. § 2X1.1(b)(2) requires for

uncompleted conspiracies. Fed. R. Crim. P. 52(b). Section 2X1.1(b)(2) does not

apply where “the conspirators were about to complete all such acts but for

apprehension or interruption by some similar event beyond their control.” Here,

all that was left of the conspiracy was to complete the sale. But the drugs were not

sold because “Gary” was an undercover agent and because Keren instructed his

wife to throw out the drugs after he was stopped and his phone seized. The

reduction does not apply. See United States v. Le, 119 F.4th 700, 705 (9th Cir.

2024) (finding that the reduction did not apply when there was “no evidence of

anything that stood in the conspirators’ way” to complete the conspiracy).

Last, we reject Kalantari’s argument that he is entitled to a mitigating four-

level adjustment for his minimal role in the scheme pursuant to U.S.S.G.

§ 3B1.2(a). The district court did not err in denying the mitigating role adjustment

12 24-4365 for the reasons asserted by the government at the sentencing hearing.1 Nor did the

district court plainly err by failing to explain its reasoning. The Probation Office

did not apply a role adjustment because it determined that Kalantari was an

average participant, and the district court adopted the Probation Office’s findings

(except for certain aspects of the loss calculation). While district courts must

“explain their sentencing decisions,” “they do not have to ‘tick off sentencing

factors to show that [they] considered them.’” United States v. Klensch, 87 F.4th

1159, 1164 (9th Cir. 2023) (quoting United States v. Diaz, 884 F.3d 911, 914 (9th

Cir. 2018)). The district court’s questions at Kalantari’s hearing and its adoption

of the Probation Office’s findings are sufficient indication that it considered the

required factors and did a comparative analysis of Kalantari’s conduct.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

FOR FURTHER PROCEEDINGS.

1 The government argues that the merits of this claim are subject to plain error review because Kalantari did not argue his “minimal” role at the sentencing hearing in the context of a role adjustment but rather in the context of the 18 U.S.C. § 3553(a) factors. Kalantari disagrees because his counsel expressly stated at the sentencing hearing that he requested “a minimal role.” Even assuming that Kalantari preserved his objection, we affirm. 13 24-4365