Circumstantial “Red Flags” and Willful Blindness After Ruan: Proving a Doctor’s Subjective Knowledge of Unauthorized Prescribing

Introduction

In United States v. Lawrence Mark Sherman (6th Cir. Feb. 27, 2026), the Sixth Circuit affirmed the trial convictions and the denial of a new trial for a physician accused of operating as the prescribing arm of a cash-only “pill mill.” The defendant, Lawrence Mark Sherman, M.D., was convicted of (1) conspiracy to possess with intent to distribute and to distribute controlled substances, and (2) nineteen counts of unlawful distribution of controlled substances.

The case arises in the post-Ruan v. United States landscape, where the government must prove a doctor’s subjective mental state—i.e., that the physician knowingly or intentionally acted in an unauthorized manner. The appeal presented several recurring issues in Controlled Substances Act (“CSA”) prosecutions of clinicians:

• How subjective knowledge may be proven circumstantially after Ruan v. United States;
• When a deliberate ignorance (willful blindness) instruction is appropriate in prescribing cases;
• Preservation problems for evidentiary issues (offers of proof; completeness; summaries; lay vs. expert testimony);
• Standards for claims of judicial bias under Liteky v. United States and 28 U.S.C. § 455.

Summary of the Opinion

The Sixth Circuit (Judge Larsen) held that:

• The evidence was sufficient for all convictions even under the ordinary “rational trier of fact” test (without deciding whether the defendant waived the more favorable sufficiency review standard by failing to renew a Rule 29 motion).
• The district court properly gave a deliberate ignorance instruction where the evidence supported an inference that the defendant consciously avoided confirming unauthorized prescribing.
• The district court did not abuse its discretion excluding “patient notebook” pages, largely because the defense failed to make a sufficiently specific proffer of what was excluded and why it mattered.
• The defendant failed to show plain error regarding an asserted Rule 106 completeness claim for a recorded conversation; and in any event did not establish prejudice.
• Rule 1006 summary charts were properly handled; Rule 1006 does not require early production of the charts themselves and does not require production of hypothetical intermediate “culled” work product as “underlying documents.”
• Agents’ challenged testimony was admissible as lay opinion in key respects; any arguable error was harmless given cumulative proof and other equivalent evidence.
• The judicial bias claim failed under Liteky v. United States; the challenged remarks and case management did not show deep-seated antagonism or inability to be fair.
• No cumulative error warranted reversal; denial of a new trial was affirmed.

Analysis

1) Precedents Cited

A. Sufficiency of the evidence; preservation; standards of review

• United States v. Emmons: supplied the baseline sufficiency standard—viewing evidence in the light most favorable to the prosecution, asking whether any rational trier of fact could find elements beyond a reasonable doubt.
• United States v. Price: stated the “traditional rule” that failing to renew a Rule 29 motion at the close of all evidence can waive ordinary appellate review, limiting review to “manifest miscarriage of justice.”
• United States v. Wagner (citing United States v. Wahl): flagged uncertainty when a district court reserves decision on a mid-trial Rule 29 motion; Wagner noted (without deciding) that some circuits do not treat non-renewal as waiver when the court reserves.

B. The post-Ruan mens rea requirement in doctor-prescribing prosecutions

• Ruan v. United States: controlled the mens rea framing—government must prove beyond a reasonable doubt that the defendant “knowingly or intentionally acted in an unauthorized manner,” a subjective inquiry, but knowledge may be proven circumstantially.
• United States v. Bauer: applied Ruan in the Sixth Circuit; endorsed using objective “red flags” and deviation from professional practice to infer subjective knowledge/intent (e.g., inadequate exams, ignored red flags, failure to pursue conservative options).

C. Willful blindness / deliberate ignorance instruction

• United States v. Mitchell: supplied the two-part test—(1) defendant claims lack of guilty knowledge; (2) evidence supports an inference of deliberate ignorance.
• United States v. Anderson: approved instruction language materially identical to the one used here; the panel used Anderson to confirm the instruction’s phrasing.
• United States v. Stanton and United States v. Geisen: supplied the standard for reviewing jury instructions (abuse of discretion; reversible only if confusing, misleading, prejudicial when read as a whole).

D. Excluded evidence; proffers; appellate review limits

• Although the panel leaned on treatise authority (Wright & Miller) and out-of-circuit cases (Polack v. Comm'r, United States ex rel. Veal v. DeRobertis, United States v. Winkle), its core point was doctrinally conventional: without a specific offer of proof, an appellate court cannot evaluate relevance, duplication, or harmlessness.
• United States v. Thompson: provided abuse-of-discretion review for evidence exclusion.
• Hicks v. Floyd Cnty. Bd. of Educ.: supported the principle that failing to put disputed exhibits into the appellate record can defeat review.

E. Rule of completeness and hearsay (including the 2023 amendment)

• United States v. Holden: articulated the “fairness” purpose of Rule 106—avoiding misleading impressions by placing admitted portions in context.
• United States v. Costner and United States v. Adams: used to explain what the December 1, 2023 amendment changed—completing portions may now be admitted “over a hearsay objection,” abrogating Costner’s limitation.
• United States v. Olano and United States v. Clay: supplied the plain-error framework and the “reasonable probability” prejudice requirement.
• United States v. Churn and United States v. Boyd: clarified “effect on the listener/knowledge” non-hearsay uses; the court used them to reject the defendant’s overbroad “state of mind/knowledge” admissibility theory.

F. Rule 1006 summaries

• United States v. Williams: standard of review (abuse of discretion).
• United States v. Bray and United States v. Jamieson: supplied the five prerequisites for Rule 1006 summaries and the proposition that Rule 1006 does not require pretrial delivery of the summary itself.

G. Lay vs. expert testimony; harmless error

• United States v. White: evidentiary errors require effect on substantial rights for reversal.
• United States v. Kilpatrick: key line-drawing: agent testimony based on specialized training is expert testimony; testimony based on personal knowledge of the investigation may be lay opinion.
• United States v. DeJohn: plain-error review for unobjected-to testimony.
• United States v. Kettles (quoting Kotteakos v. United States and Shinseki v. Sanders): harmless-error principles and the government’s burden to explain harmlessness.
• United States v. Robinson and United States v. Baldwin: “substantially equivalent evidence” and “overwhelming evidence” support harmlessness.
• United States v. Faulkenberry: summarized financial data can be lay testimony when it requires everyday reasoning rather than specialized knowledge.

H. Judicial bias / disqualification

• Caperton v. A.T. Massey Coal Co. and Rippo v. Baker: Due Process “outer boundary” and “probability of actual bias” framing (the panel ultimately analyzed under § 455).
• Liteky v. United States: central test—judicial remarks/rulings during proceedings are not bias unless they show “deep-seated favoritism or antagonism” making fair judgment impossible; ordinary impatience/annoyance is not enough.
• United States v. Liggins: distinguished; there the problem was the judge’s “looks like a criminal to me” comment. The panel held Sherman’s record did not approach that level.
• McMillan v. Castro, United States v. Hynes (citing United States v. Sims), and United States v. Hickman: supplied standards of review and preservation points (abuse of discretion vs. plain error; when objection is excused).

I. Cumulative error; new trial

• Campbell v. United States: cumulative-error doctrine.
• United States v. Munoz: new trial standard—“interest of justice,” generally requiring “substantial legal error.”

2) Legal Reasoning

A. Post-Ruan proof: objective unreasonableness as circumstantial evidence of subjective knowledge

The opinion’s core CSA holding is its operationalization of Ruan v. United States in a pill-mill fact pattern: while authorization is a subjective inquiry, juries may infer subjective knowledge/intent from a dense record of objective “red flags” and departures from legitimate medical practice. Following United States v. Bauer, the panel treated expert testimony about deviation from the “usual course of professional practice,” coupled with evidence of suspicious clinic operations, as enough to permit a rational inference that Dr. Sherman knew he was acting without authorization.

The panel cataloged evidence the jury could credit, including: cash-only walk-in operations; prescriptions issued routinely (often Percocet without MRI, stronger drugs with MRI); fake medical records available for purchase; repeated exposure to suspicious MRI reports; refills issued without meaningful patient interaction (including from vacations); failure to review urine screen results; and a payment model in which the doctor was paid per visit only when a strong opioid prescription issued. The court treated these as mutually reinforcing indicators of knowing unauthorized distribution.

B. Conspiracy inference follows from the unauthorized-prescribing inference

The defendant argued the proof did not show he knowingly joined a conspiracy. The panel reasoned that the same evidence that permitted an inference he knowingly issued unauthorized prescriptions also permitted an inference he knowingly and voluntarily joined the clinic’s distribution conspiracy (i.e., shared intent inferred from coordinated operation and prescribing practices aligned with the scheme).

C. Deliberate ignorance instruction fits pill-mill “looked the other way” evidence

The court upheld a willful-blindness instruction under United States v. Mitchell, emphasizing that the record supported an inference the defendant was “aware of a high probability” of unauthorized prescribing and “deliberately closed his eyes” to it. Importantly, the court pointed to concrete “avoidance” behaviors (e.g., not reviewing drug screen results; refilling without contact; prescribing despite doubting MRI authenticity; continuing despite believing some patients were “faking it”; agreeing to a business model that only paid for visits yielding strong opioids).

This matters post-Ruan: deliberate ignorance can serve as the route by which a jury finds the requisite knowledge where a prescriber claims “I didn’t know,” but the evidence suggests purposeful non-confirmation.

D. Evidentiary rulings largely turned on preservation and prejudice

• Patient notebooks: the exclusion was affirmed because the defense never provided a sufficiently specific proffer of what the pages said and why it was material—preventing meaningful appellate review of relevance/duplication/harmlessness.
• Rule 106 completeness: the court applied plain-error review because Rule 106 was not timely invoked. Even assuming a completeness problem, the court found no substantial-rights prejudice because the defense cross-examined the witness on the point and played the segment for impeachment.
• Non-hearsay “knowledge” theory rejected: the court clarified that offering an assertion as proof of the truth of the declarant’s asserted knowledge remains hearsay; labeling it “state of mind” does not automatically render it non-hearsay.
• Rule 1006 summaries: the court treated intermediate “culled” lists as not necessarily “underlying documents,” and reiterated that Rule 1006 does not require early disclosure of summary charts.
• Lay vs. expert agent testimony: foundational descriptions of investigative tools and summaries of records were treated as permissible lay testimony tied to the investigation; even if one “diversion” point crossed into expertise, any error was harmless given other similar testimony and overwhelming evidence.

E. Judicial bias claim rejected under Liteky’s “deep-seated antagonism” test

Applying Liteky v. United States and reviewing for plain error due to lack of contemporaneous objections, the court held that: voir dire reassurance the case was “real” did not undermine the presumption of innocence; sidebar remarks about advocacy were not bias; comments about opioid harms responded to counsel’s policy argument rather than prejudging guilt; sentencing remarks referencing a prior civil case were used to evaluate mitigation letters’ completeness rather than to punish for prior allegations; and a ten-month delay in deciding a motion was not evidence of bias.

3) Impact

A. Reinforces how the Sixth Circuit will operationalize Ruan at the proof stage

The opinion strengthens an increasingly clear Sixth Circuit approach (consistent with United States v. Bauer): even though authorization is subjective under Ruan v. United States, the government can often reach the jury through objective “red flag” patterns—especially when business practices, documentation irregularities, monitoring failures, and prescribing/refill habits form a coherent narrative of knowing unauthorized distribution.

B. Willful blindness remains a powerful tool in prescribing prosecutions

By approving the deliberate-ignorance instruction on these facts, the decision signals that in clinic-based schemes, “not checking,” “not following up,” and “continuing despite doubts” can support willful blindness—bridging the gap between suspicious circumstances and the knowledge element.

C. Litigation conduct lessons: preservation and record-building can decide appellate outcomes

The evidentiary discussions (notebooks, Rule 106, alleged non-hearsay theory) underscore that even potentially helpful defense evidence may be lost on appeal if counsel fails to (1) make a specific proffer, (2) include exhibits in the record, and (3) timely invoke the correct evidentiary rule.

D. Clarifies practical use of amended Rule 106, but highlights procedural risk

The panel acknowledged the December 1, 2023 amendment to Rule 106 (completeness “over a hearsay objection”), yet the defendant did not benefit because the issue was not preserved and prejudice was not shown. Future litigants can read this as: the amendment is meaningful, but only if timely invoked and tied to a concrete misleading impression.

Complex Concepts Simplified

• “Authorized” prescription under the CSA: In this context, a prescription is “authorized” only if issued for a legitimate medical purpose in the usual course of professional practice. A doctor can commit a crime by prescribing outside that authorization.
• Subjective mens rea after Ruan: The government must prove the doctor knew or intended the prescribing was unauthorized—not merely that it was objectively bad medicine. But juries may infer that subjective state of mind from circumstantial “red flags.”
• Deliberate ignorance (willful blindness): A person cannot escape liability by intentionally avoiding confirmation of what is obvious. The jury must find awareness of a high probability of illegality and a deliberate decision not to learn the truth; negligence is not enough.
• Rule 106 (rule of completeness): If one side plays part of a conversation, the other may be entitled to play additional parts that are necessary to prevent the excerpt from being misleading. After the 2023 amendment, the completing portion can come in even if it would otherwise be hearsay—when fairness requires it.
• Rule 1006 summaries: When records are too voluminous to present item-by-item, a party may offer an accurate summary chart if the underlying admissible records were made available for inspection.
• Judicial bias standard (Liteky): Judges can be impatient or critical; that is usually not bias. Disqualification is reserved for extreme circumstances showing deep-seated favoritism or antagonism that makes fair judgment impossible.

Conclusion

United States v. Lawrence Mark Sherman is a significant Sixth Circuit application of Ruan v. United States to pill-mill-style prosecution evidence. The court reaffirmed that subjective knowledge of unauthorized prescribing can be proven through extensive circumstantial “red flag” evidence and that a deliberate-ignorance instruction is appropriate where the record supports an inference the prescriber consciously avoided confirming illegality. The opinion also serves as a cautionary guide on appellate preservation: without specific proffers, timely evidentiary objections, and a complete record, even potentially consequential claims may fail on review.