United States v. Siao

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 4, 2025
• Docket: 24-1486
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 4 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 24-1486 D.C. No. Plaintiff - Appellee, 5:21-cr-00267-BLF-1 v. MEMORANDUM*

DONALD SIAO,

Defendant - Appellant.

Appeal from the United States District Court for the Northern District of California Beth Labson Freeman, District Judge, Presiding

Submitted April 2, 2025** San Francisco, California

Before: HURWITZ, KOH, and JOHNSTONE, Circuit Judges.

Donald Siao appeals his conviction under 21 U.S.C. § 841(a)(1) for the

unauthorized distribution of a controlled substance. We have jurisdiction under 28

U.S.C. § 1291. Because the parties are familiar with the facts, we do not recount

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). them here, except as necessary to provide context to our ruling.

Siao’s sole claim of error involves a jury instruction to which he did not

object at trial. When there is no objection to a jury instruction at trial, we review

for plain error. See United States v. Conti, 804 F.3d 977, 981 (9th Cir. 2015).

Under the plain error standard, relief is not warranted unless there has been an

error, that was plain, which affected the defendant’s substantial rights, and

“seriously affected the fairness, integrity, or public reputation of judicial

proceedings.” United States v. Walter-Eze, 869 F.3d 891, 911 (9th Cir. 2017).

Finding no plain error, we affirm.

“Except as authorized,” it is “unlawful for any person knowingly or

intentionally—to manufacture, distribute, or dispense . . . a controlled substance.”

21 U.S.C. § 841(a)(1). Conduct is unauthorized if it is not “issued for a legitimate

medical purpose by an individual practitioner acting in the usual course of his

professional practice.” 21 C.F.R. § 1306.04(a). “After a defendant produces

evidence that he or she was authorized to dispense controlled substances, the

Government must prove beyond a reasonable doubt that the defendant knew that

he or she was acting in an unauthorized manner, or intended to do so.” Ruan v.

United States, 597 U.S. 450, 454 (2022). In other words, the government must

“prove not only that the conduct was unauthorized, but also that the defendant

knew or intended it to be unauthorized.” United States v. Pham, 120 F.4th 1368,

2 24-1486 1371 (9th Cir. 2024) (citing Ruan, 597 U.S. at 468).

The disputed jury instruction stated that to convict, the jury was required to

find that: “Donald Siao knowingly or intentionally acted in an unauthorized

manner. ‘Unauthorized manner’ means that the distribution of the controlled

substance was outside of the usual course of professional practice and without a

legitimate medical purpose.” Although the parties’ stipulated jury instruction may

have more clearly conveyed the objective and subjective elements of unauthorized

distribution, the given instruction sufficiently conveys the elements of § 841(a)(1)

because it requires the jury to find both that Siao knowingly or intentionally acted

in an unauthorized manner and that his actions were in fact unauthorized. See

United States v. Feingold, 454 F.3d 1001, 1008-09 (9th Cir. 2006) (instructing

which elements the government must prove, and suggesting that a similarly

combined instruction would be sufficient). Any ambiguity in the instruction was

not “clear or obvious” error and thus was not plain error. See Puckett v. United

States, 556 U.S. 129, 135 (2009).

AFFIRMED.

3 24-1486