Objective “Red Flags” and Willful Blindness Can Establish Subjective Mens Rea in Post-Ruan Controlled-Substance Prescribing Cases

Sufficiency review; preservation; and the reserved-Rule-29 wrinkle

• United States v. Emmons supplied the baseline standard for sufficiency: whether a rational trier of fact could find the elements beyond a reasonable doubt when evidence is viewed favorably to the prosecution.
• United States v. Price stated the traditional preservation rule: failure to renew a Rule 29 motion after presenting defense evidence ordinarily limits appellate review to “manifest miscarriage of justice.” The panel discussed the rule but declined to decide whether it applies where the district court reserved ruling and later denied.
• United States v. Wagner and United States v. Wahl framed an open procedural question: whether a defendant must renew a Rule 29 motion when the court reserves ruling mid-trial. The panel noted the D.C. Circuit approach but again left the issue unresolved, because Sherman failed even under the more favorable rational-trier standard.

Post-Ruan mens rea and circumstantial proof

• Ruan v. United States did the heavy doctrinal lifting: the government must prove beyond a reasonable doubt that a prescriber “knowingly or intentionally acted in an unauthorized manner.” Critically, the panel emphasized Ruan’s acknowledgment that knowledge may be proven through circumstantial evidence, including by showing the objective unreasonableness of asserted medical beliefs against CSA criteria (legitimate medical purpose, usual course of professional practice).
• United States v. Bauer provided Sixth Circuit confirmation of how, after Ruan, “objective” departures from standard care (failure to examine, diagnose, heed red flags, use conservative treatment) can support an inference of subjective knowledge/intent.

Deliberate ignorance (willful blindness) instruction

• United States v. Stanton and United States v. Geisen supplied the abuse-of-discretion framework for reviewing jury instructions as a whole.
• United States v. Anderson was especially important: the panel noted the instruction given here was “functionally identical” to language the Sixth Circuit recently endorsed in a controlled-substance prosecution.
• United States v. Mitchell provided the governing two-prong test: the defendant claims lack of guilty knowledge, and the evidence supports an inference of deliberate ignorance.

Offers of proof and appellate review of excluded evidence

• United States v. Thompson framed the abuse-of-discretion standard for exclusion of evidence.
• The panel relied on treatise authority (Wright & Miller) and cited: Polack v. Comm'r, United States ex rel. Veal v. DeRobertis, United States v. Winkle, and Hicks v. Floyd Cnty. Bd. of Educ. to underscore a practical appellate rule: without a specific offer of proof identifying what the excluded evidence actually said, an appellate court cannot assess relevance, duplication, or harmlessness.

Rule of completeness after the 2023 amendment; forfeiture and plain error

• United States v. Holden supplied the Sixth Circuit’s “fairness” gloss: Rule 106 is used to correct a misleading impression and place admitted portions in proper context.
• The opinion recognized the December 1, 2023 amendment to Rule 106, which allows completing portions to be admitted “over a hearsay objection,” expressly noting it abrogates the Sixth Circuit’s prior approach under United States v. Costner, as described in United States v. Adams.
• Because Sherman did not timely invoke Rule 106, the panel applied plain-error review using United States v. Olano and measured prejudice under United States v. Clay.
• On hearsay characterization, the panel cited United States v. Churn and United States v. Boyd to distinguish legitimate “effect on listener/knowledge” uses from hearsay offered for the truth of an asserted proposition; it also referenced Rule 803(3) as a state-of-mind pathway (though not successfully invoked by Sherman).

Rule 1006 summary charts

• United States v. Williams provided the abuse-of-discretion standard.
• United States v. Bray set the five prerequisites for Rule 1006 charts; the panel applied them as restated in United States v. Jamieson.
• The panel reinforced Jamieson’s specific point: Rule 1006 does not require the government to provide a copy of the summary chart itself before use, so long as underlying documents are available.

Lay vs. expert testimony by agents; harmlessness

• United States v. White framed the substantial-right requirement for reversing evidentiary error.
• United States v. Kilpatrick was the key Rule 701/702 boundary case: agents relying on specialized training are experts; agents relying on personal knowledge of a particular investigation may offer lay opinions.
• For unobjected-to testimony, the panel applied plain-error review under United States v. DeJohn.
• For harmlessness, the panel used United States v. Kettles, which in turn relies on Kotteakos v. United States, and noted the government’s burden language from Shinseki v. Sanders. It also invoked United States v. Robinson (no prejudice where equivalent evidence was admitted) and United States v. Baldwin (overwhelming evidence cures).
• On financial-summary testimony, the panel cited United States v. Faulkenberry to note that summarizing large data sets can be “everyday reasoning,” not expert analysis.

Judicial bias / recusal standards

• The panel anchored constitutional “outer boundary” principles in Caperton v. A.T. Massey Coal Co. and Rippo v. Baker, but resolved the claim under 28 U.S.C. § 455’s “impartiality might reasonably be questioned” standard.
• It used Liteky v. United States as the central template: impatience/annoyance is not bias; views formed during proceedings are disqualifying only if they show deep-seated favoritism or antagonism.
• United States v. Liggins illustrated the line-crossing example (“looks like a criminal”), which the panel distinguished.
• Standards of review came from McMillan v. Castro (abuse of discretion where preserved), and United States v. Hynes and United States v. Sims (plain error absent contemporaneous objection, unless objection would worsen matters).
• For the “delay equals bias” claim, the panel cited docket-control discretion principles by analogy to Am. Civil Liberties Union of Ky. v. McCreary County..
• In addressing sentencing remarks referencing a prior civil case, the panel referenced Preston v. County of Macomb as the earlier litigation and treated the sentencing judge’s knowledge as permissible “learned in earlier proceedings” under Liteky.

Cumulative error and new trial

• Campbell v. United States supplied the cumulative-error framework.
• United States v. Munoz provided the “interest of justice” and “substantial legal error” standards for new trials.

1) Sufficiency under a subjective mens rea requirement (Ruan) can be met by objective “red flags”

Sherman’s core defense theory on appeal was that the government lacked proof of his actual, subjective knowledge that his prescribing was unauthorized and that he lacked the mens rea to join a conspiracy. The panel’s answer was doctrinally straightforward and practically important: subjective mens rea rarely comes by direct evidence, and Ruan v. United States expressly permits circumstantial proof.

Applying the United States v. Bauer template, the panel highlighted evidence a jury could treat as incompatible with honest medical practice:

• transparently fake MRI reports (including one recycled MRI that Sherman told a patient to “fix”);
• high-strength, street-preferred opioid prescribing patterns;
• failure to review urine screens for illicit drug use;
• refills issued electronically, often without patient interaction and from remote locations;
• a compensation structure tying payment to issuance of sufficiently strong opioids; and
• his own comments suspecting some patients were “faking” pain while prescribing anyway.

From those facts, a rational jury could infer he either knew the prescriptions lacked legitimate medical purpose/usual course of practice or at least shared the intent necessary for conspiracy. The opinion thus operationalizes Ruan in a common “pill mill” fact pattern: objective departures from medical norms do not replace subjective mens rea, but they can be powerful evidence of it.

2) Deliberate ignorance remains available after Ruan where the record supports “closing eyes to the obvious”

The court treated the deliberate-ignorance instruction as fully compatible with post-Ruan prosecutions, provided the United States v. Mitchell prerequisites are met. The panel found ample evidence that Sherman was, at minimum, aware of a “high probability” of unauthorized prescribing and deliberately avoided confirmation: he questioned authenticity of MRIs, suspected feigned pain, yet continued prescribing; he failed to check screens and failed to conduct meaningful follow-up before refills; and he accepted a cash-only clinic model and pay structure that rewarded strong-opioid issuance.

Importantly, the instruction itself emphasized that negligence or foolishness is not knowledge, aligning with Sixth Circuit approvals (including United States v. Anderson) and guarding against a strict-liability drift.

3) Procedural rigor: without a concrete offer of proof, appellate review of excluded evidence collapses

Sherman’s patient-notebook argument failed largely at the threshold. The panel stressed a practical appellate principle: it cannot assess relevance, duplication, or harmlessness if the proponent never identifies the substance of what was excluded. By citing authorities like United States ex rel. Veal v. DeRobertis and United States v. Winkle, the panel reinforced that “general subject matter” descriptions are not enough; the record must reveal what the jury would have seen and why it mattered.

This portion of the opinion is a warning to trial practitioners: when evidence is excluded, make a specific, record-preserving proffer (and ensure the exhibits are actually in the appellate record), or the claim may be functionally unreviewable.

4) Rule 106 after the 2023 amendment: still needs a timely invocation and still must satisfy prejudice on plain-error review

The panel acknowledged Rule 106’s expanded force after the 2023 amendment—completing portions can be admitted even “over a hearsay objection,” undoing the prior Sixth Circuit limitation tied to United States v. Costner. But the amendment did not help Sherman because:

• he failed to raise Rule 106 at the right time (triggering plain-error review);
• the jury nevertheless heard the relevant portion as impeachment; and
• he could not show a reasonable probability of a different outcome under United States v. Olano and United States v. Clay.

The panel also rejected Sherman’s attempt to characterize the “doctor would leave if he caught it” comment as non-hearsay state-of-mind/knowledge evidence. The court drew the classic distinction emphasized in United States v. Churn and United States v. Boyd: when the proponent needs the statement to be true to establish the point (here, that Sherman truly lacked knowledge and would truly leave), it is hearsay unless an exception applies.

5) Rule 1006 charts: “underlying documents” are the source records, not every intermediate work product

Sherman attacked summary charts derived from MAPS data and clinic records, arguing inadequate access to “precise materials” underlying the chart. The panel treated the “culled MAPS report” (an intermediate filtered list) as not itself an “underlying document” for Rule 1006 purposes where the true underlying records (MAPS data and patient records) were available long before trial. And consistent with United States v. Jamieson, the panel reiterated that Rule 1006 does not require pretrial production of the charts themselves.

6) Agent testimony: the line is training-based “expertise” vs investigation-based “perception”

Applying United States v. Kilpatrick, the panel largely characterized the agents’ testimony as permissible lay explanation of tools, data sources, and arithmetic summaries based on investigation records. Even where one portion (what drugs are “most commonly diverted”) arguably leaned toward specialized knowledge, the panel found any error harmless because equivalent evidence was admitted without objection and the government’s overall evidence was overwhelming (via United States v. Kettles, United States v. Robinson, and United States v. Baldwin).

7) Judicial bias: stern remarks and prior-case familiarity rarely satisfy Liteky

The panel rejected bias allegations spanning voir dire, sidebars, Rule 29 argument, sentencing comments, and post-trial timing. Its through-line was Liteky v. United States: the record showed ordinary trial management and evaluative comments, not deep-seated antagonism. The panel distinguished United States v. Liggins because the district court here never made the kind of personal, appearance-based condemnation (“looks like a criminal”) that crossed the line in Liggins.

The sentencing remark referencing the judge’s prior involvement in Preston v. County of Macomb was treated as permissible context for assessing character letters, not an improper importation of extrarecord facts into guilt or punishment.