United States v. Kesten

• Court: Court of Appeals for the Tenth Circuit
• Decided: August 23, 2022
• Docket: 22-1066
• Status: Unpublished

Opinion

Appellate Case: 22-1066 Document: 010110728337 Date Filed: 08/23/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT August 23, 2022 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 22-1066 (D.C. No. 1:20-CR-00291-DDD-1) JEFFREY KESTEN, (D. Colo.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before MATHESON, PHILLIPS, and CARSON, Circuit Judges. _________________________________

Dr. Jeffrey Kesten pleaded guilty to one count of conspiracy to commit an

offense against the United States, in violation of 18 U.S.C. § 371. The object of the

conspiracy was the solicitation or receipt of kickbacks in violation of 42 U.S.C.

§ 1320a-7b(b), and the charge was based on Dr. Kesten’s conduct in prescribing a

particular brand of pain medication in exchange for speaking fees. He was sentenced

to twenty-four months in prison. He filed an appeal despite the appeal waiver in his

plea agreement. The government now moves to enforce Dr. Kesten’s appeal waiver

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 22-1066 Document: 010110728337 Date Filed: 08/23/2022 Page: 2

and to dismiss this appeal. See United States v. Hahn, 359 F.3d 1315, 1328

(10th Cir. 2004) (en banc) (per curiam).

In determining whether to enforce an appeal waiver, we consider:

“(1) whether the disputed appeal falls within the scope of the waiver of appellate

rights; (2) whether the defendant knowingly and voluntarily waived his appellate

rights; and (3) whether enforcing the waiver would result in a miscarriage of

justice[.]” Id. at 1325. Dr. Kesten argues his appeal waiver was not knowing and

voluntary because his plea was not knowing and voluntary.

“[I]n determining whether an appellate waiver is knowing and voluntary under

Hahn, we may consider whether the entire plea agreement, including the plea, was

entered knowingly and voluntarily.” United States v. Rollings, 751 F.3d 1183, 1186

(10th Cir. 2014). Dr. Kesten contends his guilty plea was not knowing and voluntary

because he “did not understand the nature of the charges against him before entering

his plea.” Resp. at 1. “Specifically, he did not know that in order to convict him of

conspiracy under 18 U.S.C. 371, the government was required to prove that he

willfully joined the alleged conspiracy.” Id. (citing United States v. Nall, 949 F.2d

301, 305 (10th Cir. 1991)).

As in Rollings, because defense counsel did not object to the validity of the

plea at any point in the proceedings, we review Dr. Kesten’s argument solely for

plain error. 751 F.3d at 1191. Under the “demanding” plain-error standard, “he must

demonstrate: (1) an error, (2) that is plain, which means clear or obvious under

current law, and (3) that affects substantial rights.” United States v. Rosales-

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Miranda, 755 F.3d 1253, 1258 (10th Cir. 2014) (internal quotation marks omitted).

“If he satisfies these criteria, this Court may exercise discretion to correct the error if

(4) it seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Id. (internal quotation marks omitted).

Dr. Kesten asserts that his counsel, the district court, and the prosecution “all

operated under the mistaken belief that the conspiracy offense required only proof

that [he] knowingly participated in the conspiracy.” Resp. at 3. He now contends “it

is well established this kind of conspiracy offense requires proof that the defendant

‘entered the conspiracy willfully.’” Id. (quoting Nall, 949 F.2d at 305). He explains

that “Federal Rule of Criminal Procedure 11 requires the district court to inform the

defendant of and ensure he understands the nature of the offenses to which he is

pleading.” Id. at 4 (brackets and internal quotation marks omitted). He therefore

argues, “[b]ecause [he] did not know the elements of the conspiracy offense with

which he was charged, his plea was not knowing and voluntary.” Id.

Dr. Kesten has not shown district court error. But even if we assume error, we

agree with the government that Dr. Kesten has not shown plain error. It was not

“clear or obvious under current law,” Rosales-Miranda, 755 F.3d at 1258 (internal

quotation marks omitted), that the word “willfully” must be used instead of the

phrase “knowingly and voluntarily” when describing the necessary intent for

participating in a conspiracy.

The plea agreement used the phrase “knowingly and voluntarily” for the

element regarding participating in the conspiracy when listing the elements for

3 Appellate Case: 22-1066 Document: 010110728337 Date Filed: 08/23/2022 Page: 4

conspiracy, citing Tenth Circuit Criminal Pattern Jury Instruction § 2.19 (2021).

Mot. to Enf., Att. 1 at 7. And the elements were also read in open court during the

plea colloquy using that same language. Id., Att. 2 at 8-9. As the government

explains, “[i]dentical language for the elements of conspiracy can be found in

numerous Tenth Circuit cases.” Gov’t Reply at 5 (citing cases). In contrast, the only

authority Dr. Kesten offers for his argument that the correct language is “willfully” is

our decision in Nall from thirty years ago. But since that decision, we have

repeatedly used the “knowingly and voluntarily” or “knowing and voluntary”

language. See, e.g., United States v. Murry, 31 F.4th 1274, 1297 (10th Cir. 2022);

United States v. Hammers, 942 F.3d 1001, 1013 (10th Cir. 2019); United States v.

Cooper, 654 F.3d 1104, 1115 (10th Cir. 2011); United States v. Bedford, 536 F.3d

1148, 1156 (10th Cir. 2008); United States v. Hanzlicek, 187 F.3d 1228, 1232

(10th Cir. 1999). And he cites no authority suggesting that the later cases and the

criminal pattern jury instruction are somehow substantively inconsistent with Nall.

In fact, Dr. Kesten does not acknowledge the cases cited above, or the many others

like them, that use the phrase “knowingly and voluntarily,” rather than “willfully.”

Finally, he cites no case holding that use of the phrase “knowingly and voluntarily” is

error in this context. Instead, it appears that “willfully” and “knowingly and

voluntarily” may be used interchangeably in this context. See Cooper, 654 F.3d at

1115 (reciting the conspiracy elements, including that “the defendant knowingly and

voluntarily participated in the conspiracy,” and citing Nall as in “accord” with that

statement of the elements).

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We conclude that Dr. Kesten has not shown error, let alone plain error, in the

district court’s advisement of the charge against him or approval of the plea

agreement. As a result, he cannot show his plea was not knowing and voluntary or

that his appeal waiver was not knowing and voluntary. Accordingly, we grant the

government’s motion to enforce the appeal waiver and dismiss this appeal.

Entered for the Court Per Curiam