Advice-of-Counsel Instruction Requires Full Disclosure of Compensation Structure in Anti-Kickback Cases

Case: United States v. Samuel Harris (No. 25-5540)
Court: U.S. Court of Appeals for the Sixth Circuit
Date: June 16, 2026 (Sutton, Chief Judge)

1. Introduction

United States v. Samuel Harris sits at the intersection of healthcare marketing, referral-driven laboratory testing, and the federal Anti-Kickback Statute (“AKS”), 42 U.S.C. § 1320a-7b(b). Samuel Harris founded “Secure Health,” a medical marketing firm that used door-to-door canvassing to obtain Medicare and Medicaid recipients’ consent for genetic cancer screening swab tests. Secure Health used telemedicine providers to sign test orders and routed specimens to a laboratory (Crestar), which billed federal healthcare programs and paid Secure Health on a per-patient basis.

The core dispute on appeal was not whether per-patient payments implicate the AKS (they do), but whether Harris was entitled to key trial protections: an advice-of-counsel jury instruction, a mistrial based on a prosecutor’s improper remark, and admission of a recorded meeting with law enforcement. The Sixth Circuit affirmed Harris’s AKS convictions and 30-month below-Guidelines sentence.

Key Parties and Posture

  • Plaintiff-Appellee: United States of America
  • Defendant-Appellant: Samuel Harris
  • Charges: Conspiracy and substantive AKS violations (convicted); healthcare fraud-related counts (acquitted)

Issues Presented

  • Whether the district court abused its discretion by denying an advice-of-counsel jury instruction.
  • Whether an improper prosecutorial remark warranted a mistrial.
  • Whether the court improperly excluded a recorded meeting as hearsay when offered in full.

2. Summary of the Opinion

The Sixth Circuit affirmed across the board. It held that Harris was not entitled to an advice-of-counsel instruction because he failed to disclose a “pertinent” fact to counsel: Secure Health paid its employees on a per-patient basis, while counsel’s compliance memorandum repeatedly assumed flat salaries. That omission defeated the “full disclosure” element and, independently, any post-memo shift to per-patient pay undermined “good faith reliance.”

On the mistrial motion, the court agreed the prosecutor’s remark was improper but found no prejudice given a prompt objection, no answer to the question, a curative instruction, the isolated nature of the comment in a long trial, and substantial evidence of AKS violations.

On the evidentiary issue, the court endorsed the district judge’s insistence on a statement-by-statement hearsay analysis (rather than admitting an entire recorded interview wholesale) and found no abuse of discretion—particularly where at least some statements on the tape were plainly inadmissible hearsay and the defense ultimately proceeded by offering clips.

Holdings (Operational Rules)

  • Advice-of-counsel instruction: A defendant is not entitled to the instruction unless evidence supports that the defendant (1) fully disclosed all pertinent facts and (2) relied in good faith on counsel’s advice; a compensation model (e.g., per-patient commissions) is “pertinent” when it bears on AKS liability.
  • Mistrial: An improper remark does not require a mistrial absent prejudice; prejudice is evaluated using the Sixth Circuit’s multi-factor prosecutorial-misconduct framework, with curative instructions and lack of an answer significantly reducing risk.
  • Recorded interview / hearsay: Courts may require a line-by-line approach to hearsay in recordings; “statement” under the Rules is a “single declaration or remark,” not an entire narrative, and Rule 803(3) does not admit backward-looking statements of prior state of mind.

3. Analysis

A. Precedents Cited

1) Standard of review and entitlement to a defense instruction

  • United States v. Svoboda, 633 F.3d 479, 483 (6th Cir. 2011): Supplied the abuse-of-discretion standard for reviewing denial of a proposed jury instruction, anchoring the appellate deference that frames the entire advice-of-counsel dispute.
  • United States v. Householder, 137 F.4th 454, 488 (6th Cir. 2025) (per curiam): Provided the Sixth Circuit’s modern articulation of the advice-of-counsel elements—full disclosure and good-faith reliance—used as the governing test.
  • Williamson v. United States, 207 U.S. 425, 453 (1908): Cited as foundational authority recognizing advice-of-counsel principles, reinforcing that the doctrine is not a mere equitable argument but a longstanding feature of federal criminal law.
  • United States v. Lindo, 18 F.3d 353, 356–57 (6th Cir. 1994): Performed multiple roles: it defined “pertinent” facts as those bearing on liability; emphasized the district court’s gatekeeping function; and framed the “good faith reliance” requirement.
  • United States v. Duncan, 850 F.2d 1104, 1117 (6th Cir. 1988), and United States v. Johnson, 416 F.3d 464, 467 (6th Cir. 2005): Confirmed that defendants need not “fully establish” a defense to receive an instruction, but still must present evidence supporting the instruction’s prerequisites—harmonizing defendant access with trial-court screening.
  • Indianapolis & St. Louis R.R. Co. v. Horst, 93 U.S. (3 Otto) 291, 299 (1876): Used for the cautionary proposition that unsupported instructions can confuse and mislead juries—supporting the refusal to instruct where evidentiary foundations are lacking.

2) Using conduct symmetry (paying and receiving kickbacks) to infer willfulness

  • United States v. Montgomery, 2022 WL 2284387, at *12 (6th Cir. June 23, 2022): Invoked illustratively to show that offering commissions and receiving commissions can co-exist as part of one unlawful referral ecosystem—supporting the panel’s common-sense inference that paying kickbacks can corroborate knowing receipt of them.
  • United States v. Grow, 977 F.3d 1310, 1320, 1328 (11th Cir. 2020) (per curiam): Cited for the proposition that paying kickbacks can support an inference of intent to defraud, reinforcing that kickback arrangements often function as evidence of culpable mental state, not merely technical billing violations.

3) Mistrial discretion and prosecutorial misconduct prejudice

  • Illinois v. Somerville, 410 U.S. 458, 462 (1973): Though a Double Jeopardy context, it supplied the general proposition that trial judges possess “broad discretion” regarding mistrials—framing appellate reluctance to second-guess real-time trial management.
  • United States v. Wall, 130 F.3d 739, 745 (6th Cir. 1997): Reinforced that mistrial determinations are reviewed for abuse of discretion.
  • United States v. Davis, 514 F.3d 596, 614 (6th Cir. 2008) (quotation omitted): Supplied the ultimate prejudice touchstone—whether prosecutorial conduct affected the fairness of the trial.
  • Cristini v. McKee, 526 F.3d 888, 899 (6th Cir. 2008), and United States v. Carroll, 26 F.3d 1380, 1387 (6th Cir. 1994): Provided the two-step structure: (1) impropriety and (2) prejudice.
  • United States v. Warshak, 631 F.3d 266, 302 (6th Cir. 2010), together with United States v. Carter, 236 F.3d 777, 783 (6th Cir. 2001), and United States v. Betro, 115 F.4th 429, 446 (6th Cir. 2024) (quotation omitted): Supplied the prejudice factors the panel applied: tendency to mislead, whether isolated or extensive, whether deliberate, and strength of the evidence.
  • Zafiro v. United States, 506 U.S. 534, 540 (1993) (quotation omitted): Supported reliance on the presumption that juries follow limiting instructions, key to rejecting prejudice.
  • United States v. Eaton, 784 F.3d 298, 310 (6th Cir. 2015), and United States v. Wells, 623 F.3d 332, 346 (6th Cir. 2010): Reinforced that timely, specific curative instructions reduce harm.
  • United States v. Buckley, 934 F.2d 84, 89 (6th Cir. 1991): Emphasized that the absence of an answer to an improper question mitigates prejudice.
  • United States v. Wandahsega, 924 F.3d 868, 884 (6th Cir. 2019), and United States v. Betro, 115 F.4th at 449: Used to characterize the challenged remark as a single isolated event, particularly in the context of a lengthy trial.
  • United States v. Mejia-Ruiz, 433 F. App’x 455, 461 (6th Cir. 2011), and Slagle v. Bagley, 457 F.3d 501, 527 (6th Cir. 2006): Supported the panel’s conclusion that the episode reflected limited improper intent rather than a calculated effort to taint the defense.
  • United States v. Galloway, 316 F.3d 624, 632 (6th Cir. 2003): Provided a concluding comparator for affirming denial of a new trial where prejudice is not shown.

4) Evidence rulings, hearsay mechanics, and preservation

  • United States v. Carpenter, 157 F.4th 841, 849 (6th Cir. 2025): Supplied the abuse-of-discretion standard for evidentiary rulings.
  • Williamson v. United States, 512 U.S. 594, 599 (1994) (quotation omitted): Central to the hearsay analysis—“statement” means a “single declaration or remark,” supporting the court’s insistence on a remark-by-remark review rather than wholesale admission of a recorded meeting.
  • United States v. Canan, 48 F.3d 954, 960 (6th Cir. 1995): Supported the trial court’s readiness to conduct granular admissibility determinations (and the propriety of requiring the proponent to identify admissible portions).
  • United States v. Mezzanatto, 513 U.S. 196, 201–03 (1995): Cited to analogize that parties can forfeit or waive evidentiary positions—here, by choosing to proceed with clips and not renewing a request to admit the full recording.
  • United States v. LeMaster, 54 F.3d 1224, 1231 (6th Cir. 1995): Used to reject reliance on Rule 803(3) where the statement describes a past state of mind rather than a then-existing condition—critical to the exclusion of the partner’s “that’s why we chose him” assertion.

B. Legal Reasoning

1) Advice-of-counsel: “pertinent facts” include the compensation mechanism

The panel’s analysis is built around the AKS’s basic prohibition: it is unlawful to “offer,” “pay,” “receive,” or “solicit” remuneration “in return for” referrals or for arranging services reimbursable by federal healthcare programs. 42 U.S.C. § 1320a-7b(b). The court treated Secure Health’s per-patient payments as directly liability-bearing because they are the economic engine of a referral system.

Against that backdrop, the “full disclosure” requirement in United States v. Householder and United States v. Lindo did the decisive work. Harris’s lawyer (Esseltine) drafted a compliance memorandum that “noted three times” an assumption that employees were paid a “flat salary.” But Harris paid employees per patient. The court deemed this discrepancy “pertinent” because it bore on whether Harris “willfully offer[ed] or pa[id] any remuneration” under § 1320a-7b(b)(2), and because paying kickbacks can corroborate knowing receipt of them (supporting the other AKS counts).

The practical lesson is doctrinal: where counsel’s legal advice is explicitly conditioned on a particular operational fact (here, salary vs. commission), nondisclosure of a contrary fact defeats the defense at the threshold and justifies withholding the jury instruction.

2) Good-faith reliance fails where the defendant deviates from counsel’s assumed facts

Harris argued that he started paying kickbacks after seeking legal advice. The court treated that argument as self-defeating: advice-of-counsel does not only require asking for advice; it requires acting consistently with the advice’s premises. If the memorandum’s analysis rested on salaried compensation, then switching to per-patient compensation was not “good faith reliance on counsel’s advice” under United States v. Lindo.

3) Mistrial: impropriety conceded, prejudice not shown

The prosecutor asked a question implying that Harris had contacted “the very attorneys that are sitting here,” then immediately clarified “not these same attorneys.” The district judge struck the comment with a direct instruction that counsel identity was irrelevant and must be disregarded. Applying the Cristini v. McKee/United States v. Carroll two-step and the United States v. Warshak factors, the panel emphasized four points:

  • Misleading effect was limited: objection prevented an answer (United States v. Buckley) and the curative instruction was presumed effective (Zafiro v. United States; United States v. Eaton; United States v. Wells).
  • Isolated nature: one question, late in a 26-day trial with over 60 witnesses (United States v. Wandahsega; United States v. Betro).
  • Limited improper intent: looked like a momentary mistake, not a strategy (United States v. Mejia-Ruiz; Slagle v. Bagley).
  • Strength of evidence: substantial testimony and messages supported the AKS convictions, making it difficult to attribute the verdict to the remark.

4) The recording: hearsay is analyzed by “statements,” not tapes

Harris sought to admit an entire recorded meeting with federal officers; the government objected on hearsay grounds. The district court refused wholesale admission and invited a line-by-line approach. The Sixth Circuit approved this methodology as faithful to Rule 801(c)’s “statement” requirement, as explained in Williamson v. United States, 512 U.S. 594, 599 (1994): hearsay analysis turns on discrete remarks, not the overall character of a conversation.

The panel also underscored that, even ignoring potential forfeiture concerns (supported by United States v. Mezzanatto and Rule 103(a)), the tape contained plainly inadmissible material, including a partner’s assertion: “That’s ultimately why we chose him because we felt confident that he knew what he was doing.” The court labeled this “rank hearsay” and rejected Rule 803(3) because the statement described a past state of mind, not a then-existing one, consistent with United States v. LeMaster.

C. Impact

  • Narrows practical availability of advice-of-counsel in AKS marketing models: The decision signals that compensation architecture (salary vs. per-referral/per-patient) is almost always “pertinent” in referral-driven healthcare prosecutions. Defendants seeking an instruction must be able to show not only consultation but accurate disclosure of operational realities and adherence to counsel’s assumed facts.
  • Compliance memos are not shields when operations diverge: The court’s focus on the memo’s repeated salary assumptions highlights a litigation risk for businesses that obtain legal sign-off on one model and implement another. This elevates the evidentiary importance of contemporaneous documentation of what was disclosed to counsel and what was actually implemented.
  • Trial management guidance: The opinion reinforces that isolated prosecutorial missteps—promptly cured—rarely warrant mistrials in lengthy complex trials, especially with substantial evidence of guilt.
  • Recorded interviews and “whole tape” strategies: Parties should expect courts to require precise identification of admissible statements and to exclude backward-looking “state of mind” assertions dressed up as Rule 803(3) evidence.

4. Complex Concepts Simplified

  • Anti-Kickback Statute (AKS): A federal criminal law that broadly prohibits paying or receiving anything of value to induce or reward referrals for items or services paid for by Medicare/Medicaid (subject to narrow “safe harbors”). In practice, per-patient or per-referral “commissions” are high-risk because they tie money directly to generating federally reimbursed business.
  • Advice-of-counsel defense: Not a free-standing “I had a lawyer” excuse. It is an evidentiary theory used to negate willfulness/intent. To use it, the defendant must show (1) full disclosure of pertinent facts and (2) good-faith reliance on the advice actually given.
  • “Pertinent” facts: Facts that matter to legal liability. Here, how employees were paid mattered because per-patient pay can itself be “remuneration” for referrals under the AKS.
  • Mistrial: A drastic remedy that ends a trial without a verdict. Courts grant it only when an error is so prejudicial that it cannot be cured (often by striking the remark and instructing the jury).
  • Hearsay and “statement-by-statement” review: Hearsay is an out-of-court “statement” offered for its truth. Because “statement” means a single remark, courts may admit some lines from a recording and exclude others.
  • Rule 803(3) (state-of-mind exception): Allows statements showing a declarant’s then-existing mental state (“I intend,” “I feel,” “I believe”) but generally not statements describing what the declarant felt or thought in the past (“That’s why we chose him” months earlier).

5. Conclusion

United States v. Samuel Harris crystallizes a practical and litigation-significant rule for AKS prosecutions: a defendant cannot obtain an advice-of-counsel instruction without evidence of full disclosure of liability-bearing operational facts—especially the compensation structure that powers referrals—and without conduct consistent with counsel’s assumed premises. The opinion also reinforces a restrained approach to mistrials for isolated, cured prosecutorial improprieties, and it endorses granular hearsay screening for recorded interviews, rejecting attempts to admit an entire “tape” without parsing admissible “statements.” In the broader legal context, the decision strengthens the Sixth Circuit’s emphasis on trial-court gatekeeping in both jury instructions and evidence, while underscoring how referral-linked payments remain central indicators of AKS criminal exposure.