Deliberate-Ignorance Instructions Remain Adequate to Satisfy Ruan’s Subjective-Knowledge Requirement in § 846 Opioid-Distribution Conspiracies

Introduction

In United States v. Mark Dyer (consolidated with United States v. Jeffrey Campbell), the Sixth Circuit affirmed convictions and sentences arising from an opioid-prescribing and health-care fraud scheme operated through a primary-care clinic in Kentucky. The appeal raised wide-ranging challenges: the adequacy of jury instructions in light of the Supreme Court’s decision in Ruan v. United States; the sufficiency of the evidence on conspiracy to unlawfully distribute controlled substances, health-care fraud, and money laundering; several evidentiary rulings; and multiple sentencing issues, including drug-quantity calculations and loss determinations. The court also addressed the procedural bar to review of later-entered restitution orders under Manrique v. United States.

The headline legal development—less a new rule than a decisive reaffirmation—is that, within the Sixth Circuit, a properly framed deliberate-ignorance (ostrich) instruction remains sufficient to meet Ruan’s subjective-knowledge standard even when the elements instructions did not expressly require the jury to find that a medical practitioner knew his prescribing was unauthorized. The panel emphasized it was bound by recent circuit precedent and again cautioned district courts to give fully Ruan-compliant instructions going forward.

Summary of the Opinion

Jury instructions under Ruan: Although the trial preceded Ruan, appellate review applies the law at the time of review. The court acknowledged that the elements instructions did not clearly require subjective knowledge of lack of authorization. Nevertheless, under binding Sixth Circuit precedents (Anderson, Bauer, Stanton), the presence of a deliberate-ignorance instruction—paired with clarification that negligence, carelessness, and “foolishness” are insufficient—rendered the overall instructions adequate.
Sufficiency of the evidence: The evidence supported convictions for conspiracy to unlawfully distribute controlled substances (21 U.S.C. § 846), health-care fraud and conspiracy (18 U.S.C. §§ 1347, 1349), and money laundering conspiracy (18 U.S.C. § 1956). The court rejected arguments premised on acquittals on other counts, invoking the rule against reversing based on cross-count inconsistency (Powell).
Evidentiary rulings: No abuse of discretion or plain error occurred in admitting (i) standard-of-care testimony by government medical experts, (ii) limited references to 2016 CDC guidelines as harmless, (iii) a summary bar graph of bonuses under Rules 1006/403, (iv) expert-type testimony by a DEA investigator without formal “expert certification,” and (v) a lay witness’s qualitative description of high narcotic prescribing (harmless).
Sentencing: The district court’s drug-quantity estimation was not clearly erroneous. “Intended loss” remains a permissible metric under Sixth Circuit precedent (You), and any error in the intended-loss calculation was harmless given the court’s substantial downward variances and express statements that it would have imposed the same sentences under § 3553(a).
Restitution: Objections to restitution were not reviewable because defendants failed to file a separate notice of appeal after the later restitution order, and the government invoked Manrique’s claims-processing rule.

Analysis

Precedents Cited and Their Influence

Ruan v. United States, 597 U.S. 450 (2022): Held that § 841’s “knowingly or intentionally” mens rea applies to the authorization element, requiring proof that the practitioner knew or intended that his prescribing was unauthorized. The panel accepted that the elements instructions did not squarely state this subjective-knowledge requirement but relied on circuit precedent to find no reversible error where a proper deliberate-ignorance instruction was given.
United States v. Anderson, 67 F.4th 755 (6th Cir. 2023): The Sixth Circuit upheld pre-Ruan instructions on § 841 where the court gave a deliberate-ignorance instruction and distinguished knowledge from negligence or mistake. This decision “substantially covered” Ruan’s requirement.
United States v. Bauer, 82 F.4th 522 (6th Cir. 2023): Acknowledged that the instructions “did not fully comport with Ruan,” but under Anderson they were still adequate on plain-error review. Also addressed a “good faith” instruction that “muddied the water” but did not warrant reversal given Anderson.
United States v. Stanton, 103 F.4th 1204 (6th Cir. 2024): Extended Anderson/Bauer to § 846 conspiracy to distribute; a deliberate-ignorance instruction that sets the bar above negligence and mistake satisfies Ruan in conspiracy prosecutions.
United States v. Houston, 792 F.3d 663 (6th Cir. 2015): Appellate courts measure instructions against the law at the time of appeal, permitting application of Ruan to pre-Ruan trials.
United States v. Potter, 927 F.3d 446 (6th Cir. 2019); United States v. Hall, 20 F.4th 1085 (6th Cir. 2022); United States v. Beals, 698 F.3d 248 (6th Cir. 2012): Set out § 846 conspiracy elements, including agreement, knowledge/intent, and participation, and allow circumstantial proof.
United States v. Wheat, 988 F.3d 299 (6th Cir. 2021): A § 846 conspiracy requires more than a one-off agreement to transfer drugs. The panel found a broader clinic-wide plan to overprescribe beyond any single patient episode.
United States v. Powell, 469 U.S. 57 (1984); United States v. Lawrence, 555 F.3d 254 (6th Cir. 2009): Cross-count inconsistency does not justify reversal; sufficiency is assessed count-by-count independent of acquittals elsewhere.
United States v. Randolph, 794 F.3d 602 (6th Cir. 2015): Internal inconsistency within a single count (e.g., finding “none” for quantity on a conspiracy count) is different; not applicable here.
United States v. Persaud, 866 F.3d 371 (6th Cir. 2017); United States v. Hughes, 505 F.3d 578 (6th Cir. 2007): Elements of health-care fraud (§ 1347) and conspiracy to commit health-care fraud (§ 1349), including intent to defraud and agreement plus overt act.
United States v. Tolliver, 949 F.3d 244 (6th Cir. 2020): Elements of promotion money laundering conspiracy under § 1956.
United States v. Volkman, 736 F.3d 1013 (6th Cir. 2013), vacated on other grounds, 574 U.S. 955 (2014): The government may use objective medical standards to show a practitioner acted outside the usual course; Ruan later clarifies that objective standards remain evidentiary tools to prove subjective knowledge.
United States v. Johnson, 488 F.3d 690 (6th Cir. 2007); United States v. Neeley, 308 F. App’x 870 (6th Cir. 2009): Courts should not “certify” experts before the jury; a witness may give expert opinion if the foundation shows expertise, even without formal “tendering” as an expert.
United States v. Gowder, 841 F. App’x 770 (6th Cir. 2020): Law-enforcement witnesses with appropriate experience may opine on pill-mill characteristics.
United States v. Jeross, 521 F.3d 562 (6th Cir. 2008); United States v. Walton, 908 F.2d 1289 (6th Cir. 1990); United States v. Mosley, 53 F.4th 947 (6th Cir. 2022): Drug-quantity estimates must be supported by a preponderance; courts should err on the side of caution and may credit one side’s experts.
United States v. You, 74 F.4th 378 (6th Cir. 2023); Kisor v. Wilkie, 588 U.S. 558 (2019): “Loss” under U.S.S.G. § 2B1.1 can include intended loss because the Guideline is ambiguous and the commentary is owed deference after Kisor.
Williams v. United States, 503 U.S. 193 (1992); Molina-Martinez v. United States, 578 U.S. 189 (2016); United States v. Obi, 542 F.3d 148 (6th Cir. 2008); United States v. O’Georgia, 569 F.3d 281 (6th Cir. 2009): Harmlessness of Guidelines errors when the same sentence would issue under § 3553(a) and the court explains its rationale.
Manrique v. United States, 581 U.S. 116 (2017): Later-entered restitution orders require a separate notice of appeal; absent that, the restitution issue is beyond the scope if the government raises the defect.
United States v. Bray, 139 F.3d 1104 (6th Cir. 1998); United States v. Weinstock, 153 F.3d 272 (6th Cir. 1998); United States v. Maliszewski, 161 F.3d 992 (6th Cir. 1998); United States v. Dietz, 577 F.3d 672 (6th Cir. 2009); United States v. Knowles, 623 F.3d 381 (6th Cir. 2010): Principles governing summary charts, Rule 403 balancing, harmless evidentiary error, and standards of review.

Legal Reasoning

1) Jury Instructions Post-Ruan: Deliberate Ignorance as the Safety Net

The panel candidly recognized that the elements instructions omitted an explicit requirement that defendants knew or intended their prescribing was unauthorized under § 841. Under Ruan, that element is essential: liability turns on the defendant’s subjective mental state, not whether a hypothetical reasonable doctor would find the prescribing appropriate.

Nevertheless, the court was “not writing on a clean slate.” In Anderson and Bauer, the Sixth Circuit had already held that where an ostrich instruction permits the jury to infer knowledge from deliberate avoidance and explicitly cautions that carelessness, negligence, and “foolishness” are insufficient, the instructions “substantially cover” Ruan. In Stanton, the court extended that holding to § 846 conspiracies. Those cases bind panels. Accordingly, even though the instructions “do not fully comport with Ruan,” the presence of the deliberate-ignorance instruction required affirmance.

The defendants’ attempts to distinguish the precedents failed:

“Good faith” instruction: A “reasonable doctor” good-faith gloss is incompatible with Ruan’s subjective standard, but Bauer found a similar instruction merely “muddied the water” and did not overcome Anderson.
Patient diversion language: The ostrich instruction’s reference to ignoring a high probability of patient diversion did not equate diversion with unauthorized prescribing; it permitted an inference of knowledge and coexisted with the key instruction distinguishing knowledge from negligence.
Severity of conduct in other cases: The legal sufficiency of instructions does not turn on case-specific egregiousness.

The panel added a cautionary note that such instructions “are not the instructions that should be used... going forward,” echoing Bauer. The message: new trials should expressly track Ruan’s subjective mens rea, but prior trials with ostrich instructions remain insulated by circuit authority.

2) Sufficiency of the Evidence

a) § 846 Conspiracy to Unlawfully Distribute

Viewing the evidence in the light most favorable to the government, the court found ample proof of an agreement at Physicians Primary Care (PPC) to prescribe opioids without a legitimate purpose and outside usual practice:

Campbell was the “decider” and left pre-signed scripts; Dyer examined patients for minutes and obtained Campbell’s signature when needed.
Experts opined the prescribing practices lacked a legitimate medical purpose; patients failed drug screens; a high percentage received opioids; the clinic’s parking lot and waiting room indicated pill-seeking patterns; many traveled long distances—factors repeatedly recognized as red flags by the Sixth Circuit (e.g., Stanton, Elliott).

Defendants argued that acquittals on several patient-specific § 841 counts implied the conspiracy verdict must rest on a single remaining patient and thus fail under Wheat. The panel rejected this:

The record contained evidence about “countless” other patients; the conspiracy encompassed a broader clinic practice, not one-off transfers.
Under Powell, inconsistency across counts is not grounds for reversal; sufficiency is assessed on the count of conviction alone.
Randolph’s single-count internal inconsistency theory does not apply to cross-count disparities.

b) Health-Care Fraud (§ 1347) and Conspiracy (§ 1349)

The government’s proof centered on PPC’s billing of “MedFit” exercise sessions, counseling, and physical therapy under the high-level 99214 evaluation and management code—despite minimal provider interaction and supervision by unlicensed personnel (e.g., the “pool guy” overseeing exercise). The court concluded a rational jury could find a scheme to defraud and intent:

Incident-to billing defense: Although “incident-to” can allow billing under a physician’s NPI for services by non-physicians, the government showed that Medicare and Indiana Medicaid require physician-created plans of care and supervision—conditions not met—and Kentucky Medicaid did not permit incident-to at all. This evidence permitted rejection of the defense.
Intent to defraud: Campbell signed PPC’s Medicare enrollment agreeing to comply with regulations; Dyer understood 99214 requirements. The jury could infer knowledge of noncompliance and fraudulent intent.

c) Money Laundering Conspiracy (§ 1956)

The promotion theory was grounded in using fraud proceeds to pay large employee bonuses (including Dyer’s), thereby incentivizing continued fraudulent billing and medically unnecessary testing. Given that Dyer signed 99214 billing sheets for services he knew did not meet that level, a jury could find he knew bonuses derived from unlawful proceeds and intended to promote the scheme.

3) Evidentiary Rulings

Medical experts (Denham and King): Testimony about objective medical standards and “what should have happened” in proper practice was admissible. Post-Ruan, objective criteria remain probative of subjective knowledge (Ruan expressly contemplates using objective standards to prove the defendant’s state of mind). Brief reference to 2016 CDC guidelines was harmless; both experts clarified they did not rely on them, and “start low, go slow” reflected longstanding medical principles.
Summary bar graph of bonuses: Admissible under Rule 1006 and not unfairly prejudicial under Rule 403, as it accurately summarized compensation data without argumentative annotations. Competing explanations for high bonuses went to weight, not admissibility.
DEA investigator Jason Smith: The court correctly allowed “red flags” testimony without formally “certifying” him as an expert before the jury. The proper approach is to lay foundation and elicit opinion; with experience and training established, the testimony was permissible.
PPC employee Dawn Antle: Her estimate that ~90% of patients were on narcotics was rationally based on perception and thus admissible lay testimony; her qualitative characterization (“a lot of high-dose narcotics”) was at most harmless and cumulative.

4) Sentencing

a) Drug-Quantity Estimation

The district court selected seven patient files (out of thousands), credited government experts over defense experts, excluded patients tied to acquitted counts, and then reduced the calculated total by one-third to err on the side of caution. That methodology was supported by a preponderance and not clearly erroneous under Jeross and Walton.

b) Intended Loss Under § 2B1.1

Applying You, the Sixth Circuit again held “loss” includes intended loss given the Guideline’s ambiguity and deference to commentary post-Kisor. The panel did not need to resolve disputes over the precise intended-loss figure because any error was harmless: the district court varied dramatically downward and explicitly stated it would impose the same sentences under § 3553(a) irrespective of the Guideline computations (Williams, Molina-Martinez, Obi, O’Georgia).

5) Restitution Jurisdiction

Because restitution was set months after the initial judgment and defendants did not file a separate notice of appeal, Manrique foreclosed review of the restitution order once the government raised the claims-processing defect.

Impact

Ruan compliance in the Sixth Circuit: For pre-Ruan trials (or trials with similar instructions), a properly framed deliberate-ignorance instruction will often salvage convictions even if elements instructions did not explicitly require subjective knowledge of lack of authorization. Future trials should still give explicit Ruan instructions; the court reiterated that the ostrich path is not a model instruction going forward.
Clinic-wide conspiracy theory: The court endorsed reliance on clinic operations evidence—pre-signed scripts, high-volume brief visits, long-distance patients, failed drug screens—to prove a broad § 846 agreement. Acquittals on patient-specific counts do not undermine a conspiracy verdict.
Health-care fraud proof and “incident-to” limits: Insurer rules and Medicaid policy nuances are potent tools to defeat incident-to defenses, particularly where physician supervision and plan-of-care requirements are absent or state payors categorically disallow incident-to billing.
Promotion money laundering via bonuses: Paying large bonuses from fraud proceeds to fuel continued unlawful billing can satisfy § 1956’s promotion element.
Expert and summary evidence practices: The opinion reinforces best practices for presenting expert medical standards (without converting malpractice into crime), employing law-enforcement expertise without “certifying” witnesses, and using Rule 1006 charts while avoiding argumentative annotations.
Sentencing stability despite Guideline disputes: When district courts make clear they would impose the same sentence under § 3553(a) even if Guideline calculations change—and the ultimate sentence is far below even corrected ranges—loss-calculation appellate disputes may be moot as harmless.
Appellate procedure for restitution: Defense counsel must file a separate notice of appeal after the later restitution judgment. Failure to do so will bar review if the government invokes Manrique.

Complex Concepts Simplified

Ruan’s subjective-knowledge standard: In prosecutions of medical practitioners under § 841, the government must prove the defendant knew or intended that his prescribing was unauthorized (not just that a reasonable doctor would disagree).
Deliberate ignorance (ostrich instruction): Jurors may infer knowledge when a defendant consciously avoids learning the truth. It cannot replace the mental state but can supply an inference that the defendant knew the conduct was unauthorized. It does not allow conviction for negligence, carelessness, or mistake.
§ 846 drug conspiracy: Requires an agreement to violate drug laws, knowledge/intent to join, and participation. It can be proven by circumstantial evidence of a common plan across a clinic’s practices.
“Incident-to” billing: A Medicare billing mechanism allowing services by non-physicians to be billed under a physician’s NPI when strict supervisory and plan-of-care conditions are met. State Medicaid plans may impose different or stricter limits; some disallow incident-to entirely.
99214 code: A high-level evaluation and management billing code that requires a detailed history and exam and high-level medical decision-making. Brief vitals checks plus unlicensed gym time do not qualify.
Promotion money laundering: Conducting financial transactions with criminal proceeds to promote carrying on the unlawful activity—for example, using fraud proceeds to pay bonuses that incentivize more fraud.
Intended loss vs. actual loss: For fraud sentencing under U.S.S.G. § 2B1.1, “loss” can be the greater of actual or intended loss in the Sixth Circuit. Intended loss reflects the pecuniary harm the defendant sought to inflict, even if not realized.
Harmless vs. plain error: Preserved errors are reviewed for harmlessness (whether the error affected substantial rights). Unpreserved errors require showing a clear/obvious error affecting substantial rights and the fairness, integrity, or public reputation of proceedings.
Cross-count inconsistency (Powell rule): A conviction can stand despite acquittals on related counts. Appellate courts assess sufficiency for each count independently.
Manrique restitution rule: When restitution is determined after the initial judgment, a defendant must file a separate notice of appeal following the amended restitution judgment; otherwise, appellate courts lack authority to review restitution if the government raises the defect.

Conclusion

United States v. Mark Dyer confirms a durable through-line in the Sixth Circuit’s post-Ruan jurisprudence: a deliberate-ignorance instruction, properly framed to exclude negligence and mistake and accompanied by guidance on the usual course of professional practice, remains adequate to meet Ruan’s subjective mens rea requirement—even where the elements instructions did not explicitly say so. While the court again advises district judges to give fully Ruan-compliant instructions going forward, its holdings ensure that pre-Ruan trials with ostrich instructions remain largely insulated from reversal.

Beyond jury instructions, the decision provides a comprehensive roadmap for opioid-prescribing prosecutions entwined with health-care fraud: how clinic-wide circumstantial evidence can establish conspiracies; how payor rules can defeat “incident-to” defenses; how bonus structures can constitute promotion money laundering; and how evidentiary tools—expert testimony on standards of care, summary charts, and experienced law-enforcement opinion—can be properly used. On sentencing, the case underscores the Sixth Circuit’s adherence to intended-loss calculations under § 2B1.1 and illustrates when such disputes will be rendered harmless by well-reasoned § 3553(a) variances. Finally, it offers a pointed procedural reminder: defendants must separately notice appeals from later-entered restitution orders.

In sum, the opinion fortifies existing Sixth Circuit precedent on Ruan’s application to both substantive and conspiracy opioid cases, clarifies the evidentiary and billing-law contours of health-care fraud prosecutions, and promotes sentencing and appellate practices that enhance stability and predictability in this complex, high-stakes area of federal criminal law.