Petition for Writ of Certiorari — Dalibor Kabov and Berry Kabov, Petitioners v. United States

NO. __________

In the

Supreme Court of the United States

________________

DALIBOR KABOV AND BERRY KABOV,

v.

Petitioners,

UNITED STATES OF AMERICA,

________________

Respondent.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

________________

PETITION FOR WRIT OF CERTIORARI

________________

Michael S. Devereux

WEXFORD LAW

468 N Camden Drive

Suite 200

Beverly Hills, CA 90210

Counsel for Berry Kabov

Anne M. Voigts

Counsel of Record

KING & SPALDING LLP

601 South California Ave.

Suite 100

Palo Alto, CA 94304

(650) 422-6700

avoigts@kslaw.com

David P. Mattern

K. Paige Tenkhoff

KING & SPALDING LLP

1700 Pennsylvania Ave. NW

Washington, DC 20006

March 11, 2024

Counsel for Dalibor Kabov

QUESTION PRESENTED

After the Petitioners were convicted of drug

trafficking under 21 U.S.C. § 841, this Court held that

Section 841 requires a defendant to “knowingly or

intentionally” act in a manner unauthorized by law.

The jury instructions for their convictions conflict with

Ruan’s holding, reflecting an earlier and nowoverturned view of Section 841’s state of mind

requirement. The Ninth Circuit, recognizing this,

vacated the Petitioners’ convictions on the drug

importation counts. But it left intact the Petitioners’

drug distribution conviction—despite Ruan—because

it held that the Petitioners had “invited error” on this

point, even though the disputed instruction was

(1) based on the state of the law before Ruan,

(2) proposed by the government, and (3) objected to by

Petitioners.

That was not the Ninth Circuit’s only error. It

also concluded, despite material falsehoods in the

testimony of the government’s star witness and other

evidentiary errors violating Brady and Napue, that

the outcome of the Kabovs’ trial would not have been

different.

The questions presented are:

1. Whether this Court should grant, vacate, and

remand as to Petitioners’ drug distribution convictions

in light of Ruan, or in the alternative, grant review to

resolve a conflict over the invited error doctrine.

2. Whether this Court should hold this case

pending Glossip v. Oklahoma, or in the alternative,

determine whether the Ninth Circuit’s treatment of

the Brady and Napue violations was error.

ii

RELATED PROCEEDINGS

This case arises from the following proceedings in

the United States District Court for the Central

District of California and the United States Court of

Appeals for the Ninth Circuit, listed here in reverse

chronological order:

•

United States v. Kabov, Nos. 19-50083, 1950089 (9th Cir. 2023). Petition for

rehearing denied November 14, 2023.

•

United States v. Kabov, Nos. 19-50083, 1950089 (9th Cir. 2023). Judgment entered

July 18, 2023.

•

United States v. Kabov, No. 15-cr-00511.

Judgment entered March 15, 2019.

There are no other proceedings in state or federal

trial or appellate courts, or in this Court, directly

related to this case under Supreme Court Rule

14.1(b)(iii).

iii

TABLE OF CONTENTS

QUESTION PRESENTED .......................................... i

RELATED PROCEEDINGS ...................................... ii

TABLE OF AUTHORITIES ...................................... vi

PETITION FOR WRIT OF CERTIORARI ................ 1

OPINIONS BELOW ................................................... 3

JURISDICTION ......................................................... 3

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED...................................... 4

STATEMENT OF THE CASE ................................... 4

REASONS FOR GRANTING THE PETITION......... 9

I.

This Court should grant, vacate, and remand

in light of Ruan .................................................... 9

A. The Ninth Circuit’s decision conflicts

with the Eleventh’s Circuit’s application

of the invited error doctrine and Ruan ...... 10

B. The invited error doctrine does not apply

where this Court’s intervening precedent

changes the law for a previously given

jury instruction ........................................... 12

C. The drug distribution instruction did not

comply with Ruan....................................... 17

II. This Court should hold this case pending

Glossip v. Oklahoma in light of the Ninth

Circuit's failure to properly consider the

cumulative impact of the Brady and Napue

errors .................................................................. 19

CONCLUSION ......................................................... 27

iv

APPENDIX

Appendix A

Opinion of the United States Court

of Appeals for the Ninth Circuit,

United States v. Kabov, Nos. 1950083, 19-50089 (July 18, 2023) .......... App-1

Appendix B

Judgment of the United States

District Court for the Central

District of California, United

States v. Berry Kabov, No. CR 15511(A)-DMG (March 15, 2019)........... App-23

Judgment of the United States

District Court for the Central

District of California, United

States v. Dalibor Kabov, No. CR

15-511(A)-DMG (March 15, 2019) ..... App-37

Appendix C

Order of the United States Court

of Appeals for the Ninth Circuit

Denying Rehearing En Banc,

United States v. Kabov, Nos. 1950083, 19-50089 (November 14,

2023).................................................... App-51

Appendix D

Criminal Minutes of the United

States District Court for the

Central District of California,

United States v. Kabov, No. CR 15511-DMG (December 9, 2016) ............ App-53

v

Appendix E

Relevant Provisions and Statutes

U.S. Const. amend. XIV ................... App-65

21 U.S.C. § 841 ................................. App-67

vi

TABLE OF AUTHORITIES

Cases

Brady v. Maryland,

373 U.S. 83 (1963).................................................. 23

Cassotto v. Donahoe,

600 F. App’x 4 (2d Cir. 2015) ................................. 14

F.W. Woolworth Co. v. Contemp. Arts, Inc.,

344 U.S. 228 (1952)................................................ 14

Joseph v. United States,

574 U.S. 1038 (2014).............................................. 11

Kyles v. Whitley,

514 U.S. 419 (1995)................................ 3, 23, 24, 26

Lauchli v. United States,

402 F.2d 455 (8th Cir. 1968).................................. 15

Napue v. Illinois,

360 U.S. 264 (1959)................................................ 23

Rehaif v. United States,

139 S. Ct. 2191 (2019)........................................ 1, 12

Ruan v. United States,

597 U.S. 450 (2022)................................ 1, 12, 17, 18

Tyson Foods, Inc. v. Bouaphakeo,

577 U.S. 442 (2016)................................................ 14

United States v. Andrews,

681 F.3d 509 (3d Cir. 2012) ................................... 14

United States v. Bagley,

473 U.S. 667 (1985)............................................ 3, 23

United States v. Bauer,

82 F.4th 522 (6th Cir. 2023) .................................. 10

vii

United States v. Chesney,

86 F.3d 564 (6th Cir. 1996).................................... 15

United States v. Duldulao,

87 F.4th 1239 (11th Cir. 2023) ............ 10, 11, 12, 18

United States v. Feingold,

454 F.3d 1001, 1010 (9th Cir. 2006)........................ 7

United States v. Henson,

2023 WL 2319289 (10th Cir. Mar. 2, 2023) .......... 18

United States v. Magdaleno,

43 F.4th 1215 (9th Cir. 2022) ................................ 17

United States v. McBride,

826 F.3d 293 (6th Cir. 2016).................................. 15

United States v. Miller,

406 F.2d 1100 (4th Cir. 1969)................................ 14

United States v. Myers,

804 F.3d 1246 (9th Cir. 2015)................................ 15

United States v. Perez,

116 F.3d 840 (9th Cir. 1997).................................. 15

United States v. Peter,

310 F.3d 709 (11th Cir. 2002)................................ 12

United States v. Tandon,

111 F.3d 482 (6th Cir. 1997).................................. 11

United States v. Titties,

852 F.3d 1257 (10th Cir. 2017).............................. 15

United States v. W. Indies Transp., Inc.,

127 F.3d 299 (3d Cir. 1997) ................................... 14

United States v. Wells,

519 U.S. 482 (1997).................................... 13, 14, 16

viii

United States v. Zaragoza-Moreira,

780 F.3d 971 (9th Cir. 2015).................................. 22

Statutes

21 U.S.C. § 841 ....................................................... 1, 4

21 U.S.C. § 952 ........................................................... 4

21 U.S.C. § 960 ........................................................... 4

28 U.S.C. § 1254 ......................................................... 4

PETITION FOR WRIT OF CERTIORARI

In Ruan v. United States, 597 U.S. 450 (2022), 1

this Court held that 21 U.S.C. § 841 requires a

defendant to “knowingly or intentionally” act in a

manner unauthorized by law. In so doing, it rejected

the application of an objective standard for mens rea

under that statute. Ruan, 597 U.S. at 452. Before

Ruan was decided, Defendant-Petitioners Berry and

Dalibor Kabov were convicted under this statute and

the statute governing the importation of drugs, using

jury instructions that incorporated an objective

standard. The Ninth Circuit, recognizing that this

intervening precedent affected the sufficiency of the

jury instructions in the Kabovs’ trial, vacated the

Kabovs’ convictions for drug importation, and

remanded for the district court to apply Ruan and

Rehaif v. United States, 139 S. Ct. 2191 (2019), in the

first instance, decide whether the jury was properly

instructed in light of those decisions, and for any

further proceedings. It refused, however, to do the

same the Kabovs’ convictions for drug distribution,

which suffered from the same Ruan error, mistakenly

finding that they had “invited” the error.

That split-the-baby approach makes no sense and

conflicts with other Circuits’ case law. In refusing to

treat the distributions count the same way as the

importation ones, the Ninth Circuit stretched the

meaning of “invited error” beyond all recognition. It

did not explain how the Kabovs could have knowingly

1 Ruan’s holding also depended on this Court’s earlier holding

in Rehaif v. United States, 139 S. Ct. 2191, 2195 (2019), about the

scienter requirement in another statute.

2

relinquished a right under Ruan, which was only

decided after their convictions and in fact after

briefing was concluded in their appeal. That puts the

Ninth Circuit in direct conflict with the Eleventh

Circuit which, under the same facts, decided that the

invited error doctrine did not apply to challenges to

jury instructions under Ruan. Indeed, as consensus

among circuit courts and precedent from this Court

makes clear, the invited error doctrine does not apply

where the law changes on appeal. This Court should

either grant, vacate, and remand this case in light of

Ruan, or grant review to resolve this split over the

application of invited error.

That is not the only basis for review. At trial, the

government relied on false evidence to support its

case. That included testimony from the government’s

star witness, Courtland Gettel, who repeatedly lied on

the stand, and whose testimony was contradicted by

evidence in the government’s possession—but not

disclosed to Defendants until after trial. It also

included false evidence that the government claimed

connected to mailboxes used in the criminal

conspiracy, and recordings that apparently connected

the Kabovs to another member of the conspiracy. Still,

the district court denied that request for a new trial,

and the Ninth Circuit affirmed because “the

government presented overwhelming evidence of

defendants’ guilt, and none of these purported

constitutional violations or additional evidence could

or would have changed the outcome of defendants’

trial.” App.5. The appellate court concluded that

Gettel’s testimony in particular was “unnecessary to

secure defendants’ convictions,” id., even though that

is not the proper test under United States v. Bagley,

3

473 U.S. 667, 684 (1985), which asks instead whether

there is a reasonable probability of a different result.

That conclusion also violates this Court’s

command that courts must consider such evidence

“collectively, not item by item.” Kyles v. Whitley, 514

U.S. 419, 436 (1995). While the Ninth Circuit later

alluded to the non-Gettel claims failing individually

and collectively, it did not engage in any analysis of

the collective impact of those errors, and what

analysis it did conduct applied the wrong test. Had it

properly assessed the impact of those errors, it could

not have concluded that the suppressed evidence

would not have changed the outcome of the trial.

Because that issue is before this Court in Glossip v.

Oklahoma, No. 22-7466, this Court should, in the

alternative, hold this petition, or grant review to

consider this question as well.

OPINIONS BELOW

The relevant opinion below of the Ninth Circuit is

unpublished, but available at 2023 WL 4585957. It is

also reproduced here at App.1-22. The relevant

judgments of the U.S. District Court for the Central

District of California are reproduced here at App.2350.

JURISDICTION

The judgment of the Ninth Circuit was entered on

July 18, 2023. App.1-22. On November 14, 2023, the

Ninth Circuit denied Petitioners’ request for en banc

and panel rehearing. App.51-52. This petition is

timely because it was filed before March 13, 2024, the

date set by this Court’s order extending the deadline

4

to file a petition for certiorari. This Court has

jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The relevant part of the Fourteenth Amendment

of the Constitution is reproduced at App.65. 21 U.S.C.

§ 841 is reproduced at App.67.

STATEMENT OF THE CASE

1. The Kabovs were charged with a series of

controlled substance offenses arising out of their

ownership and operation of a compounding pharmacy,

Global Compounding Pharmacy, LLC. Neither was a

pharmacist or a medical professional. 3-ER-621-22.2

Neither was familiar with the regulations governing

pharmacies. 3-ER-621-22. And neither knew much

about the procedures they were required to follow. 3ER-620-22. They obtained a pharmaceutical license in

February 2012, and hired a licensed pharmacist with

compounding experience, who, like the doctor who

wrote most of the prescriptions at issue, was never

criminally charged. 1-ER-108, 17-ER-3939-40.

Defendants, however, were. Those charges included

conspiracy to distribute and distributing oxycodone in

January and May 2012, in violation of the Controlled

Substances Act, 21 U.S.C. § 841(a)(l), (b)(l)(C), and the

illegal importation of controlled substances, 21 U.S.C.

§§ 952(b), 960(a)(1).

2. The government’s case was deeply flawed from

the get-go: it depended on false testimony from its star

2 References to the excerpts of the district court record filed

with the Ninth Circuit are “ER,” “SER,” and “FER.”

5

witness, Courtland Gettel, a cooperator who falsely

testified that his addiction to opiates—which he

claimed were supplied by the Kabovs—was triggered

by Kabovs and his four-year old son’s illness. 3 3-ER518-19, 710. Between 2013 and 2015, he estimated

that the Kabovs sold him between $10,000 to $30,000

in drugs without valid prescriptions. 13-ER-3025-26.

That testimony was false. The government had

evidence of bank transactions refuting his claims but

that was not disclosed to the defense, and evidence

showing that he also lied about withdrawing large

amounts of cash to buy opiates from the Kabovs, about

his purported multiple overdoses, and about his

supposed repeated hospitalizations for addiction was

also not disclosed until after trial. Opening Br. 47-56

(9th Cir. Dkt. 70).

3. As disclosed at trial, Gettel was a serial

fraudster who had been indicted along with his

partner, Peter Cash Doye, in a $50 million complex

conspiracy, had recently pled guilty to fraud counts in

Arizona and the Southern District of California and

The trial transcript reflects that Gettel testified that his

addiction was spurred by his son’s death, although his son was

still alive. On appeal, after full briefing and oral argument, the

government went back to the court reporter to determine

whether Gettel had in fact falsely testified that his son had died—

a factual dispute it had not previously raised either in the trial

court or in briefing before the Ninth Circuit. (In post-trial

motions, the government tried to explain this discrepancy by

claiming that Gettel had innocently conflated his wife’s

miscarriages and his four-sear-old son’s condition, an

explanation about which the trial court was appropriately

skeptical. 1-ER-31; 4-ER-749.) The Court did not resolve this

issue in ruling against the Kabovs.

3

6

had agreed to pay millions to his victims. 13-ER-307374, 3058-59, 14-ER-3106-10. But as not disclosed at

the Kabov’s trial, Gettel was also engaged in a whole

new real estate fraud before, during, and after that

trial: it was only after trial that the defense learned

about this new fraud, and the jury never learned about

it. 5-ER-960-64, 1039-57, 1164-69, 1185-1215. That

conflicted with his claims that he only engaged in

criminal activity because of the Kabovs. Specifically,

Gettel—the only person to testify that the Kabovs

provided him with illegal drugs—asserted that his

“addiction to prescription drugs provided by the

Kabovs” contributed to him committing the crimes to

which he had pled guilty. 13-ER-3057. Indeed, on

cross-examination, he doubled down, asserting: “if I

wouldn’t have been on those drugs, none of that would

have happened.” 14-ER-3120.

4. There were other issues with the government’s

case.

Another government witness, Investigator

Buntrock, testified that the Kabovs used several

mailboxes to which packages containing cash were

addressed. 16-ER-3682. The Kabovs did not rent,

control, or possess those mailboxes; others did. 2-ER356-58, 3-ER-459-61, 569-71; FER-6-65. Finally, the

government introduced testimony by Postal Inspector

Johnson identifying Berry as a participant in a

recorded phone call.

8-ER-1920-21.

But the

subpoenaed account information for that number

revealed it belonged to someone else (who said that he

never knew or let the Kabovs/others use his phone),

the original recordings were deleted, the confidential

informant did not testify, and the government’s

witness made factual errors about the voice

recordings, including crucial errors about the call

7

dates. 2-ER-358-59; 3-ER-571; Dist. Ct. Dkt. 368-2

at 9 (time-stamp) (embedded metadata of the recorder

calls).

5. During the charging conference, the Kabovs

objected to the government’s distribution instruction,

which read:

In order for a defendant to be found guilty of

Counts Two and Three, the government must

prove each of the following elements beyond a

reasonable doubt: … the defendant acted with

the intent to distribute the identified

controlled substance outside the usual course

of professional practice and without

legitimate medical purpose.

6-ER-1255. They explained that “the usual course of

professional practice” would lead the jury “to confuse

civil liability with criminal culpability.” 20-ER-455658 (cleaned up). In response, the government justified

the instructions as reflecting “verbatim” the Ninth

Circuit’s decision in United States v. Feingold, 454

F.3d 1001, 1010, 1011 n.3 (9th Cir. 2006) (quotation

marks omitted):

For a given approach to a distribution of a

controlled substances to be within the “usual

course of professional practice,” there must at

least be a reputable group of people in the

pharmacy profession within the country who

agree that it is consistent with legitimate

pharmacy practice. In determining whether

the defendant acted outside the usual course

of professional practice, you may consider the

standards to which pharmacy professionals

8

generally

hold

themselves,

including

accepted standards of care among pharmacy

professionals.

20-ER-4554, 4556. The district court subsequently

instructed the jury that it could convict on the

distribution counts if “defendant acted with the intent

to distribute the identified controlled substance

outside the usual course of professional practice and

without legitimate medical purpose.”

6-ER-1255

(emphasis added). And in closing, the government

told the jury that “this term, ‘usual course of practice,’

as the Judge just instructed you, it’s an objective term.

What does that mean? It means, let’s say I’m in the

pharmacy business, or I’m a doctor, I don’t get to say

I’m following the [prosecutor’s name] rule of medicine.

Right? There are objective standards of medicine that

apply.” 19-ER-4326-27 (emphasis added).

6. The Kabovs were convicted on all counts. 1-ER39-56, 57-79, 80-100. Five years later, Ruan was

decided. The Kabovs, who had challenged the jury

instructions in their briefing (and flagged Ruan’s

pendency

before

the

Ninth Circuit),

filed

supplemental briefing explaining why Ruan

compelled vacatur. Appellants’ Supp. Br. 3-4 (9th Cir.

Dkt. 126).

7. The Ninth Circuit vacated the Kabovs’

convictions for drug importation, and remanded for

the district court to apply Ruan and Rehaif in the first

instance, decide whether the jury was properly

instructed in light of those decisions, and for any

further proceedings. But it refused to reach the same

result on the distribution counts, despite the same

error. It did so by concluding incorrectly that they had

9

“invited instructional error” and “relinquished a

known right.” App.13.

8. The Ninth Circuit further dismissed the

Kabovs’ challenges under Brady and Napue to Gettel,

the mailbox, and the evidence and testimony of

recordings. The Ninth Circuit discussed each piece of

testimony individually, but did not meaningfully

address its cumulative impact. App.5-10. And while

it rejected the challenges to testimony about the

mailboxes and recordings on the merits as well as on

impact, the only basis for the Court’s rejection of the

challenges to Gettel’s testimony was its conclusion

that “none of these purported constitutional violations

or additional evidence could or would have changed

the outcome of defendants’ trial.” App.5. Specifically,

it concluded that Gettel’s testimony was “unnecessary

to secure defendants’ convictions. Id. The Kabovs

sought rehearing, but the Ninth Circuit denied that

request. App.52.

REASONS FOR GRANTING THE PETITION

I.

This Court should grant,

remand in light of Ruan.

vacate,

and

The Court should grant the petition, vacate in

part the Ninth Circuit’s judgment, and remand with

instructions to reconsider the drug distribution counts

in light of Ruan. In the alternative, it should grant

review to resolve a circuit split over the proper

application of the invited error doctrine. First, the

Ninth Circuit’s decision puts it in direct conflict with

the Eleventh Circuit—which found that the invited

error doctrine was inapplicable in a challenge to a preRuan jury instruction. United States v. Duldulao, 87

10

F.4th 1239, 1257 (11th Cir. 2023). Second, this Court

and federal appellate courts across the country do not

apply the invited error doctrine where this Court’s

precedent changes the relevant law, because the

defendant could not have “invited” any error. Third,

because Ruan applied to the drug distribution

instruction given at trial, the court’s failure to include

the appropriate mens rea requirement in that

instruction was reversible error.

A. The Ninth Circuit’s decision conflicts

with the Eleventh’s Circuit’s application

of the invited error doctrine and Ruan.

Facing the same issue as Ninth Circuit did here,

the Eleventh Circuit came to the opposite conclusion. 4

Where the Ninth Circuit got it wrong, the Eleventh

Circuit got it right. The invited error doctrine does not

apply to pre-Ruan jury instructions that improperly

instructed on the mens rea element. Duldulao, 87

F.4th at 1257. Put another way, the invited error

doctrine does not apply here, to “a criminal appeal

involving an instructional error in defining a

substantive offense flowing directly from …

longstanding and clear precedent.” Id.

Three points drove the Eleventh Circuit’s

reasoning. First, applying the invited error doctrine

here would impose a rule that no criminal defendant

4 In a similar case, the Sixth Circuit rejected the government’s

argument that the “invited error doctrine … foreclose[d] [a

defendant’s] challenge to the jury instructions” because “the

Government jointly invited the error” and the defendant

“claim[ed] a constitutional violation.” United States v. Bauer, 82

F.4th 522, 530 n.2 (6th Cir. 2023).

11

can overcome—if you adhere to settled law to propose

a jury instruction or fail to perfectly guess the contours

of a Supreme Court decision that comes years later

while on appeal, you are out of luck. Cf. Joseph v.

United States, 574 U.S. 1038, 1039 (2014) (Kagan, J.,

dissenting on denial of certiorari) (“When a new claim

is based on an intervening Supreme Court decision …

the failure to raise the claim in an opening brief

reflects not a lack of diligence, but merely a want of

clairvoyance.”). As the court explained, “[r]equiring

litigants to propose jury instructions inconsistent with

established circuit precedent on the off-chance of

Supreme Court intervention would not promote the

invited-error doctrine’s purpose.” Duldulao, 87 F.4th

at 1255.

Indeed, “the invited error doctrine is designed to

prevent a defendant from engaging in tactical

gamesmanship—e.g., proposing erroneous jury

instructions in an attempt to create reversible error on

appeal.” United States v. Tandon, 111 F.3d 482, 49293 (6th Cir. 1997) (McCalla, J., concurring in part and

dissenting in part). But when “the error is only

apparent as a result of an intervening change in the

law, however, the same policy rationale does not

apply.” Id. at 493. In those cases, “the defendant did

not propose the jury instruction in an attempt to

create a reversible error on appeal.” Id. “To the

contrary, the defendant included the proposed jury

instruction because it complied with the clear and

uncontroverted law at the time of the trial.” Id.

Second, failing to apply Ruan would “would be

inconsistent with [the] approach [of courts] in other

contexts,” “recogniz[ing] the failure to anticipate an

12

abrupt change in precedent is blameless and should

not preclude appellate review.” Duldulao, 87 F.4th at

1255-56. “For instance (subject to plain error review),

[courts] allow an appellant to raise new arguments

based on intervening precedent.” Id. at 1256. And

even in the habeas context, courts excuse procedural

default “when there has been in an intervening change

in the law, despite the strong finality interests at

play.” Id.

Third, it “would undermine the principle that

‘[d]ecisions of the Supreme Court construing

substantive federal criminal statutes must be given

retroactive effect.’” Id. at 1255 (quoting United States

v. Peter, 310 F.3d 709, 711 (11th Cir. 2002) (per

curiam)). That is especially important here, in a “case

involv[ing] the substantive elements of a criminal

offense.” Id. at 1256.

The Ninth Circuit’s decision did not engage with

any of these serious concerns despite acknowledging

that “[t]he district court did not have the benefit of the

Supreme Court’s decisions in Rehaif v. United States,

139 S. Ct. 2191 (2019), and Ruan v. United States, 142

S. Ct. 2370 (2022).” App.15. That was error, and it

leaves two circuits in direct conflict over the proper

approach for applying Ruan to convictions before the

decision.

B. The invited error doctrine does not

apply where this Court’s intervening

precedent changes the law for a

previously given jury instruction.

The Ninth Circuit’s decision also stands in conflict

with the decisions of this Court and others with

13

respect to invited error more generally. This Court has

repeatedly declined to apply the invited error doctrine

where

intervening

precedent

impacts

jury

instructions based on then-controlling case law. In

United States v. Wells, the government proposed a jury

instruction, which the court then gave, stating that

materiality was an element of a particular offense

under federal law, but that the judge, not the jury,

should decide it. 519 U.S. 482, 486 (1997). After the

trial concluded and while the appeal was pending, this

Court decided another case making clear that

materiality was an element to be decided by the jury.

Id. In response, the government argued for the first

time that materiality was not an element of the

relevant offense. Id. The defendants argued that the

invited error doctrine barred this argument.

This Court disagreed. It noted that the invited

error doctrine “may be” “valuable … in controlling the

party who wishes to change its position on the way

from the district court to the court of appeals,” but that

it could not “dispositively oust this Court’s traditional

rule that we may address a question properly

presented in a petition for certiorari if it was pressed

[in] or passed on by the Court of Appeals.” Id. at 488

(quotation marks omitted). Because this Court’s

intervening case law “rendered it reversible error to

assign a required materiality ruling to the court, the

Government suddenly had reason to contest the

requirement to show materiality at all.” Id. at 489.

“Nothing the Government has done disqualifies it from

the chance to make its position good in this Court.” Id.

(emphasis added).

14

Indeed, a critical element of this Court’s “invited

error” jurisprudence is that a party may not complain

of errors it created. Id. at 488 (“a party may not

complain on appeal of errors that he himself invited or

provoked the district court to commit” (cleaned up));

cf. Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442, 46162 (2016) (where petitioner argued against bifurcation

at trial, it could not then “profit from the difficulty it

caused”); F.W. Woolworth Co. v. Contemp. Arts, Inc.,

344 U.S. 228, 230-31 (1952) (explaining that

“petitioner cannot complain of this [evidentiary]

exclusion, which was in response to its objections”).

That cannot be true where this Court later decides an

issue making the earlier instruction reversible error.

Following this Court’s logic in Wells, federal

appellate courts consistently hold that defendants

cannot intentionally relinquish a known right where

the Supreme Court later changes the law. See, e.g.,

Cassotto v. Donahoe, 600 F. App’x 4, 6 (2d Cir. 2015),

as corrected (Jan. 14, 2015) (holding that the invited

error “doctrine does not apply in this case” because

“did not seek a tactical advantage by failing to request

a more favorable causation standard, but merely

acquiesced in this Circuit’s established interpretation

of Title VII, which the district court was bound to

apply regardless of what charge the defendant

proposed”); United States v. Andrews, 681 F.3d 509,

517 n.4 (3d Cir. 2012) (when “the law is found to be

constitutionally problematic, we will not apply the

‘invited error’ doctrine” (quoting United States v. W.

Indies Transp., Inc., 127 F.3d 299, 305 (3d Cir. 1997));

United States v. Miller, 406 F.2d 1100, 1105 (4th Cir.

1969) (“mere failure to assert the [Fifth Amendment]

privilege in the original proceedings, before Haynes

15

was decided, could not constitute ‘an intentional

relinquishment of a known right or privilege’”);United

States v. McBride, 826 F.3d 293, 295 (6th Cir. 2016)

(“McBride could not have intentionally relinquished a

claim based on Johnson, which was decided after his

sentencing”); United States v. Chesney, 86 F.3d 564,

568 (6th Cir. 1996) (declining to find waiver because

“the Lopez case was decided after the district court

entered judgment in this case. Thus, [defendant’s]

Lopez challenge … was not available below”); Lauchli

v. United States, 402 F.2d 455, 456 (8th Cir. 1968) (per

curiam) (holding that because “[t]his case was tried

prior to the United State Supreme Court’s decisions”

in a trio of cases, defendant did not waive argument

even though he “did not raise the privilege of selfincrimination at the trial”); United States v. Myers,

804 F.3d 1246, 1254 (9th Cir. 2015) (en banc), as

amended (Oct. 28, 2015) (holding that a defendant did

not “intentionally relinquish[] … a known right”

where the defendant did have the guidance of a laterdecided Supreme Court case (quoting United States v.

Perez, 116 F.3d 840, 845 (9th Cir. 1997))); United

States v. Titties, 852 F.3d 1257, 1264 n.5 (10th Cir.

2017) (agreeing that “the invited-error doctrine does

not apply when a party relied on settled law that

changed while the case was on appeal”).

Here, the Ninth Circuit acknowledged that the

“district court did not have the benefit of the Supreme

Court’s decisions” in Ruan (and Rehaif), and that they

“bear on the questions presented here.” App.15. It

nevertheless insisted that Defendants “invited

instructional error by proposing the distribution jury

instructions” and “relinquished a known right because

the arguments they raise on appeal concerning the

16

distribution instructions are functionally the same

arguments they made to the district court to support

their proposed instruction.” App.13-14. Neither the

Ninth Circuit nor the government ever identified

these “same arguments,” let alone anything

suggesting that the arguments below were made

knowingly.

As explained above, this Court’s precedent in

Wells forecloses the application of the invited error

doctrine here. The Kabovs did not “change [their]

position on the way from the district court to the court

of appeals”—the law changed, so the Kabovs

“suddenly had reason to contest” the required state of

mind element under Section 841. Wells, 519 U.S. at

488-89.

But even if all of this were not true, the Kabovs

did not propose or argue for the disputed instruction—

they objected to it. In the district court, the Kabovs did

not argue that they could be convicted by evaluating

mens rea against a hypothetical, reasonable-doctor’s

mental state. To the contrary, they argued the

opposite, both before the district court and the Ninth

Circuit. 20-ER-4544 (“the government’s jury

instruction would serve to import a civil ‘reasonable

person’ or ‘reputable group’ standard into a criminal

trial”); Opening Br. 105-06 (contesting “reasonable

person” standard); Reply Br. 38 n.8 (9th Cir. Dkt. 105)

(same and raising pendency of Ruan); Appellants’

Supp. Br. 6-10 (9th Cir. Dkt. 146) (raising Ruan

argument).

True, in the trial court Defendants only objected

to the proposed instruction’s final paragraph and

“request[ed] that the remainder of the instruction be

17

provided to the jury.”

20-ER-4555.

But their

argument was largely foreclosed by existing Ninth

Circuit precedent, United States v. Magdaleno later

rejected a related argument, 43 F.4th 1215, 1220 (9th

Cir. 2022), and Defendants did object to the definition

of “usual course of professional practice” because it

would “lower[] the benchmark for a criminal

conviction” and “is too vague and confusing.” 20-ER4558. That identifies the same error they pursued on

appeal—that what mattered was their subjective

mens rea, not the objective mens rea of some

hypothetical medical professional. And that error

impacted the proceedings and outcome here.

C. The drug distribution instruction did

not comply with Ruan.

There is no reason to distinguish, as the Ninth

Circuit did, between the distribution and importation

counts. Ruan applies just as much to the distribution

instruction as the importation one.

In Ruan, the defendants were medical doctors

convicted for dispensing controlled substances other

than “as authorized” under Section 841. 597 U.S. at

454. On appeal, this Court held that Section 841’s

“‘knowingly or intentionally’ mens rea applies to the

‘except as authorized’ clause” of the statute. Id. at 468.

In interpreting how the requisite scienter applied to

that clause, it explained that after “a defendant

produces evidence that he or she was authorized to

dispense controlled substances, the [g]overnment

must prove beyond a reasonable doubt that the

defendant knew that he or she was acting in an

unauthorized manner”—in other words, that the

defendant was not acting “for a legitimate medical

18

purpose … acting in the usual course of his

professional practice”—“or intended to do so.” Id. at

454 (cleaned up).

The Court rejected the government’s substitute

scienter—“objectively reasonable good-faith effort”—

then the prevailing approach in this Circuit. Id. at 465

(cleaned up). In rejecting that approach, the Court

explained that it would make a defendant’s criminal

liability turn on an objective standard—namely, the

mental state of a hypothetical “reasonable” doctor, not

the actual defendant’s subjective mens rea. Id.

Both the reasoning and result in Ruan compel

vacatur here. Duldulao, 87 F.4th at 1257; United

States v. Henson, 2023 WL 2319289, at *1-2 (10th Cir.

Mar. 2, 2023) (vacating conviction based on Ruan). As

Ruan makes clear, the instructions allowed the jury to

convict Defendants based on insufficient scienter by

evaluating it against a hypothetical, reasonabledoctor’s mental state. 597 U.S. at 465. The district

court instructed the jury to convict Defendants for two

drug distribution charges (Counts 1 and 4) if it found

that they (who were not actual medical professionals)

failed in practice to meet the same standard as

hypothetical medical professionals would. Thus, just

as in Ruan, the instructions allowed the jury to convict

Defendants based on a hypothetical, reasonabledoctor would think, not what they, as laypeople,

actually knew. Id. Here, the government contended

the jury should convict if it found that Defendants had

not met the same bar as some Platonic form of medical

professionals might, “act[ing] in the usual course of

pharmacy practice.” Gov’t Br. 93 (9th Cir. Dkt. 85);

19-ER-4327 (Government closing: “There are objective

19

standards of medicine that apply. And in the criminal

context there needs to at least be some reputable

group. Right? Somebody in the profession, some

objective standard that says what you’re doing is

okay.”). Accordingly, this Court should either grant,

vacate, and remand for the lower courts to consider

the impact of Ruan on both the drug importation

convictions and the drug distribution ones, or, in the

alternative, grant certiorari to review and resolve the

circuit split over the applicability of invited error.

II. This Court should hold this case pending

Glossip v. Oklahoma in light of the Ninth

Circuit's failure to properly consider the

cumulative impact of the Brady and Napue

errors.

The failure to properly apply the invited error

doctrine and Ruan was not the only error that the

Ninth Circuit made. The Ninth Circuit also failed to

apply the correct test assessing the impact of the

errors (the only basis for its dismissal of challenges to

Gettel’s testimony) under Bagley, or properly address

the aggregate effect of the government’s false evidence

under Kyles. Because the issues raised here are

similar to the one made in Richard Glossip’s petition

for certiorari in Glossip v. Oklahoma, No. 22-7466

(U.S.), which this court recently granted, this Court

should hold the petition and at a minimum, consider

granting, vacating, and reversing after that case is

decided.

Here, the government introduced a wealth of

deeply flawed and untrustworthy evidence. As noted

above, the government’s star witness, Courtland

Gettel, testified that the Kabovs led him back to

20

addiction and crime, supplying him with endless

opiates to fuel that addiction, causing his overdoses

and hospitalizations. 13-ER-3055-57. In a case

primarily about quantities and dosages, compliance

with civil regulations and computer records, Gettel

was the witness who brought home the consequences

of the alleged crimes. He was the only one to testify to

receiving drugs from the Kabovs. And he was the one

who made the jury want to convict the Kabovs.

But Gettel lied throughout his testimony. His son

was alive and his illness not the cause of Gettel’s drug

abuse. 3-ER-518. He had not been sober for a year

before meeting the Kabovs. 4-ER-899-900, 5-ER-1123;

3-ER-596-97; see also 5-ER-1159. He had not been

through multiple hospitalizations. 5-ER-1125; 3-ER518. And bank records produced to the defense after

trial proved that he had procured drugs from many

other suppliers, but did not show that he had bought

any opioids from the Kabovs. 5-ER-979, 983, 985, 990,

992, 1001 (showing purchases of cocaine, marijuana,

and other unspecified drugs, but no purchases from

the Kabovs or for opiates).

After trial, the government provided material

demonstrating that the government had previously

interviewed a witness in Gettel’s Arizona fraud case,

who told them that Gettel’s drug use started more

than a year before meeting the defendants. 4-ER-89899; 5-ER-1123. However, that didn’t stop Gettel from

falsely testifying in this case that his drug addiction

was the Kabovs’ fault.

In addition, post-trial

investigation discovered that Gettel testified in

another federal case in Arizona against defendant

Peter Cash Doye, using the same set of facts that he

21

used against the Kabovs. 4-ER-899-900. Moreover,

after trial the government provided material

demonstrating that Gettel’s choice of drug was cocaine

and ecstasy and not the prescription drugs that were

the subject of the indictment here. 4-ER-903-04; 5ER-1123.

And that was not all. The government also

introduced false testimony connecting the Kabovs to

mailboxes where the cash parcels were allegedly

shipped. See 8-ER-1785-86, 9-ER-1972; 9-ER-1978, see

also 7-ER-1725, 1750; 7-ER-1726-27, 9-ER-2027.

After trial there was evidence provided by the

government showing that the mailboxes were not

under the Kabovs’ names during the relevant times.

2-ER-357-58. One box, #369, had originally been

assigned to Dalibor Kabov, but he was reassigned a

different mailbox before the packages were sent, and

#369 given to someone else. 2-ER-357. Neither

brother possessed another mailbox at a different

location (#409) during the relevant time period. 2-ER356-57, 3-ER-569-70; see also FER-48. In fact, at least

six other people possessed the mailbox during the

government’s investigation, some of whom were

associated with criminal misconduct. 2-ER-357. But

at trial, despite that evidence, the government

contended that the Kabovs controlled those mailboxes.

There was more false evidence, too, through

recordings that apparently connected the Kabovs to a

member of the criminal conspiracy. As Defendants

argued before the Ninth Circuit, the district court

erred in letting in testimony about recordings of

telephone calls allegedly between a nontestifying

informant and Berry Kabov. The government’s

22

witness was only present for one of those calls—the

others were made by the unsupervised informant,

who, as noted above, did not testify at trial, who later

turned over the original recordings to the government

witness, who subsequently deleted them, thus denying

Defendants of “potentially useful evidence” in

violation of their “due process right to present a

complete defense.”

United States v. ZaragozaMoreira, 780 F.3d 971, 977 (9th Cir. 2015); Opening

Br. 72-76, 88-90.

Despite the absence of the original recordings, the

court also let that witness testify that the one key call

that purportedly linked Berry to the alleged

conspiracy took place on May 29. 8-ER-1796-97; Dist.

Ct. Dkt. 368-2 at 10. But his computer metadata of

those recordings—provided after trial—indicated that

the copy of the telephonic recording was downloaded

days before that, making that date impossible. 2-ER327-28, 359; Dist. Ct. Dkt. 368-2 at 9; 7-ER-1631-32;

SER-45-46. Moreover, that account/phone number

was not linked to Berry Kabov. 3-ER-529-30, 549.

Nevertheless, with the district court’s blessing, that

witness also testified that the voice was Berry

Kabov’s, despite the fact that he never met or had

spoken to Berry Kabov. After trial, Brady material

demonstrated that that witness had other targets in

his investigation who could have been the person on

the other end of the call. Moreover, after trial the

defense retained a voice expert who analyzed all of the

calls introduced at trial that were attributed to Berry

Kabov using biometric speak comparison, and opined

that the voice on the recordings was dissimilar to

Berry Kabov’s. 2-ER-365-66, 401-19.

23

In summary, the Government withheld

exculpatory evidence that permitted their informant

to testify to inaccurate and misleading information,

suppressed exculpatory evidence that proved the

mailboxes were not associated with the Kabovs, and

withheld pertinent information undercutting their

claims that the phone calls were not from the

defendants.

On appeal, the Kabovs explained that these errors

violated their rights under Brady v. Maryland, 373

U.S. 83 (1963) and Napue v. Illinois, 360 U.S. 264

(1959), because this false testimony was withheld by

the government despite its potential exculpatory

effect, and it was material, meaning it had a

reasonable likelihood of affecting the jury’s verdict.

E.g., Opening Br. 42-77. The Ninth Circuit rejected

the Napue and Brady challenges to Gettel’s testimony,

concluding that “none of these purported

constitutional violations or additional evidence could

or would have changed the outcome of defendants’

trial. In short, Gettel's testimony was unnecessary to

secure defendants’ convictions.” App.5. That

reasoning is inconsistent with Bagley, 473 U.S. at 684,

which requires courts to consider whether there is a

reasonable probability of a different result, 5 and Kyles,

514 U.S. at 436, which requires courts to consider such

evidence “collectively, not item by item.” Addressing

the Kabovs’ argument, the Ninth Circuit made “a

series of independent materiality evaluations, rather

than the cumulative evaluation” required by this

5 By contrast, the Ninth Circuit did at least cite the correct

language when rejecting the other Napue challenges brought by

defendants, although it did not meaningfully apply that test.

24

Court’s precedent. Kyles, 514 U.S. at 441. But viewing

the suppressed evidence in isolation, the Ninth Circuit

could not get the full picture of its weight. Here, Gettel

claimed that he bought thousands of dollars in opiates

from Defendants per month—something easily

refuted by the bank records the government produced

after trial. He was the only witness to testify to

receiving drugs from the Kabovs. This Court should

either hold this case pending resolution of Glossip, or

grant review to correct this conflict with this Court’s

authority, apply the correct standard, and reverse.

As for the other claims, while the Ninth Circuit

purported to reject them “individually and collectively

because defendants failed to establish that much of

the evidence they challenge was ‘actually false’ or

misleading, and there is not a reasonable probability

that absent the remaining evidence, the result at trial

could have been different,” that conclusion was riddled

with error, and the Court did not properly engage

with, let alone analyze, the cumulative effect of those

errors. App.2-10. (Indeed, it did not even identify

which evidence fell into which bucket—actually false

or not.)

For example, the Ninth Circuit refused to

consider the deletion of the recordings, finding it was

“forfeited because defendants did not raise it in a

motion to suppress before trial, and the district court

never addressed it.” App.13. Both statements are

wrong. Before trial, the government filed a motion in

limine requesting that the recordings be introduced

without the informant’s testifying, and Defendants

opposed that motion, identifying serious concerns

about the recordings’ reliability, and pointing out that

25

the government had not indicated whether any

recordings were “[d]estroyed or missing.” Dist. Ct.

Dkt. 123 at 1-2. Their fourteen-page filing also

emphasized the government’s failure to show “[t]hat

the recording[s had] been preserved in a [reliable]

manner,” that “deletions ha[d] not been made in the

recording[s],” and that the recordings had “not … been

modified.” Id. at 8-9. Defendants also stated that they

had not been informed “[w]hether the recording device

or the originals of the recordings still exist,” or

whether the recordings were “in substantially the

same condition as when they were” turned over by the

informant. Id. at 9-10. The district court denied

Defendants’ request to exclude the recordings, finding

them admissible “subject to the government providing

proper foundational testimony.” App.61-62.

Before the witness’s testimony, the court allowed

voir dire outside the jury’s presence. During this

questioning, defense counsel first learned that the

witness had destroyed the original recordings, even

though it should have been divulged before trial. 7ER-1629-30. Counsel also learned (also for the first

time) about many other problems with the reliability

of the recordings and the witness/s logs. 7-ER-163050, 1653-54. Without that (and other) information

produced after trial, defendants could not crossexamine him effectively.

Following his testimony, defendants argued

vehemently that the court should exclude the

evidence, emphasizing that the witness had

“destroyed the originals.... How do we know that what

he has is the original calls, especially since there are

multiple missing calls, and none of these calls have

26

time and date on them?” but the court denied the

motion, stating that the destruction of, and problems

with, the evidence was nothing more than “fodder for

cross[].” 7-ER-1654-55. There is no denying that the

issue was preserved, and ruled on, in the district court.

So too with the many other errors that the court

excused by asserting incorrectly any objections had

been waived or that the Kabovs had failed to

substantiate their claims.

Had the suppressed evidence been admitted and

the false evidence excluded, it would have shown that

the government’s evidence connecting the Kabovs’ to

the mailboxes and recordings with an alleged coconspirator was tenuous at best. “Since all of these

possible findings were precluded by the prosecution’s

failure to disclose the evidence that would have

supported them, ‘fairness’ cannot be stretched to the

point of calling this a fair trial.” Kyles, 514 U.S. at 454.

This “is a significantly weaker case than the one heard

by the … jury.” Id. It is also one which merits this

Court’s attention.

27

CONCLUSION

For the foregoing reasons, this Court should

grant, vacate, and remand in light of Ruan, or grant

the petition for certiorari to resolve the conflict over

invited error. Alternatively, this Court should hold

pending Glossip.

Respectfully submitted,

Michael S. Devereux

WEXFORD LAW

468 N Camden Drive

Suite 200

Beverly Hills, CA 90210

Counsel for Berry Kabov

Anne M. Voigts

Counsel of Record

KING & SPALDING LLP

601 South California Ave.

Suite 100

Palo Alto, CA 94304

(650) 422-6700

avoigts@kslaw.com

David P. Mattern

K. Paige Tenkhoff

KING & SPALDING LLP

1700 Pennsylvania Ave. NW

Washington, DC 20006

March 11, 2024

Counsel for Dalibor Kabov