Date: Mar 27, 2026

Totality-of-the-Circumstances Validity of a Second Faretta Waiver After Brief Reassertion of Counsel; No Due-Process Remedy for Secret Reliance on a Disbarred Advisor Absent State Action

I. Introduction

In United States v. Michael Fletcher (Sixth Circuit, Mar. 25, 2026), the court affirmed Dr. Michael Fletcher’s three convictions for unlawful distribution of controlled substances under 21 U.S.C. § 841(a)(1), based on opioid prescriptions issued at a Kentucky pain clinic in 2016. The government alleged Fletcher routinely authorized large volumes of opioid prescriptions while failing to follow Kentucky Board of Medical Licensure (KBML) standards, ignoring multiple “red flags” of abuse and diversion.

The appeal raised three central issues: (1) whether the evidence was sufficient—especially the post-Ruan mens rea requirement that Fletcher knew his prescribing was unauthorized; (2) whether Fletcher validly waived counsel for a second time shortly before trial without a renewed Faretta colloquy; and (3) whether Fletcher’s secret reliance on advice from a disbarred attorney while proceeding pro se deprived him of due process.

II. Summary of the Opinion

Sufficiency: Affirmed. The Sixth Circuit held that even without relying on the challenged IPS patient records, the trial evidence—including expert testimony and extensive circumstantial evidence—supported a finding that Fletcher knowingly prescribed outside the usual course of professional practice and deliberately ignored obvious warning signs, satisfying Ruan’s mental-state requirement.
Evidence/records: Any error admitting certain IPS records was harmless because sufficient evidence supported the convictions without them, and an expert could rely on such materials under Fed. R. Evid. 703.
Waiver of counsel: Affirmed. Despite the district court’s failure to conduct a renewed, Bench Book-style colloquy at the second waiver, the totality of circumstances (including Fletcher’s recent nine-month pro se experience after a valid Faretta colloquy) showed his second waiver was clear, unequivocal, knowing, and intelligent.
Due process: No violation. A pro se defendant’s clandestine consultation with a disbarred attorney is private conduct not attributable to the state; and the trial court had no duty to intervene where it neither knew nor reasonably should have known about the relationship.

III. Analysis

A. Precedents Cited

1. Controlled-substance prescribing after Ruan

Ruan v. United States, 597 U.S. 450 (2022): The cornerstone mens rea authority. The panel applied Ruan to the “fourth element” used in Sixth Circuit instructions—requiring proof the physician “knew or intended” the prescribing was unauthorized. The court treated legitimacy/authorization as turning on “legitimate medical purpose” in the “usual course” of practice.
United States v. Campbell, 135 F.4th 376 (6th Cir. 2025): Reinforced the regulatory definition of authorized prescriptions, anchoring the medical-purpose/usual-course framework for physician prosecutions.
United States v. Anderson, 67 F.4th 755 (6th Cir. 2023) (per curiam) and United States v. Stanton, 103 F.4th 1204 (6th Cir. 2024): These cases supplied the key inferential bridge from circumstantial “red flags” to knowledge post-Ruan. The panel relied on them to hold that deliberate indifference/deliberate ignorance to obvious risks can support the knowledge element.
Staples v. United States, 511 U.S. 600 (1994): Cited for the general proposition that knowledge can be proven circumstantially.

2. Sufficiency review and harmless error

United States v. Vance, 956 F.3d 846 (6th Cir. 2020): Provided the sufficiency standard—whether any rational factfinder could find guilt beyond a reasonable doubt, viewing the evidence in the light most favorable to the prosecution.
Burks v. United States, 437 U.S. 1 (1978) and United States v. Arnold, 486 F.3d 177 (6th Cir. 2007) (en banc): Framed why sufficiency is addressed first (a successful challenge bars retrial).
United States v. Johnson, 581 F.3d 320 (6th Cir. 2009): Supported the harmless-error conclusion—because the record supported conviction without the contested evidence.

3. Experts and evidentiary rules

Fed. R. Evid. 703 and United States v. Jaffal, 79 F.4th 582 (6th Cir. 2023): The panel emphasized that even if certain records were inadmissible hearsay, an expert may rely on inadmissible materials to form opinions.
Fed. R. Evid. 704 and United States v. Mooney, 135 F.4th 486 (6th Cir. 2025): Used to rebut the notion that expert testimony impermissibly “embraced an ultimate issue,” especially in a bench trial where jury-confusion concerns are reduced.

4. Right to self-representation and waiver of counsel

Faretta v. California, 422 U.S. 806 (1975): The foundational rule—waiver must be knowing, voluntary, intelligent; defendant must understand dangers and disadvantages of self-representation.
Iowa v. Tovar, 541 U.S. 77 (2004): Critical to the “no mandatory script” theme. The panel used Tovar to justify assessing knowledge contextually rather than requiring a fixed colloquy each time.
United States v. Cromer, 389 F.3d 662 (6th Cir. 2004): Supplied the Sixth Circuit’s two-step framework: clear and unequivocal assertion plus knowing/intelligent/voluntary waiver.
Hill v. Curtin, 792 F.3d 670 (6th Cir. 2015) (en banc): Reinforced the need to warn of self-representation’s dangers to ensure a valid waiver.
United States v. McBride, 362 F.3d 360 (6th Cir. 2004): Central to Fletcher’s argument. The panel distinguished McBride and read its “renewed inquiry” language flexibly, not as an automatic requirement for a second full Bench Book colloquy.
United States v. Powell, 847 F.3d 760 (6th Cir. 2017): Supported the role of the Bench Book-style colloquy as a best practice for ensuring comprehension.
Jones v. Jamrog, 414 F.3d 585 (6th Cir. 2005): Used for the proposition that erroneous denial/acceptance of self-representation can be structural error warranting a new trial—underscoring the stakes.
Cassano v. Shoop, 1 F.4th 458 (6th Cir. 2021), Moore v. Haviland, 531 F.3d 393 (6th Cir. 2008), and persuasive out-of-circuit authorities (Wilson v. Walker, 204 F.3d 33 (2d Cir. 2000) (per curiam); Williams v. Bartlett, 44 F.3d 95 (2d Cir. 1994); United States v. Audette, 923 F.3d 1227 (9th Cir. 2019)): These cases collectively supported two propositions the panel adopted: (i) no “magic words” are required and repeated statements bolster unequivocality; and (ii) conditional or evolving choices at a hearing do not necessarily negate an ultimate, clear request to proceed pro se.
United States v. Coles, 695 F.3d 559 (6th Cir. 2012) and United States v. Krzyske, 836 F.2d 1013 (6th Cir. 1988): Cited for the systemic concern that waiver proceedings can be manipulated to disrupt efficient administration and generate reversible error.

5. Due process, state action, and the court’s duty to intervene

Al-Saka v. Sessions, 904 F.3d 427 (6th Cir. 2018): The panel used this case for two ideas: due process constrains government actors, and adjudicators must prevent proceedings from becoming a “sham”—but only where unfairness is linked to state action and is known or reasonably knowable.
Lindke v. Freed, 601 U.S. 187 (2024): Provided the “fairly attributable to the state” requirement and the need for a “necessary lineage” to governmental action.
Cuyler v. Sullivan, 446 U.S. 335 (1980): Supplied both the notion that trial proceedings are state action and (critically) that courts have no duty to inquire into conflicts absent knowledge or reason to know a particular conflict exists.
Polk County v. Dodson, 454 U.S. 312 (1981): Used to negate state-action attribution to defense counsel performing traditional functions; a fortiori, a disbarred private advisor to a pro se defendant is not a state actor.
Weaver v. Massachusetts, 582 U.S. 286 (2017): Reinforced the autonomy rationale: self-representation protects choice even if it increases the risk of an unfavorable outcome.

B. Legal Reasoning

1. Sufficiency: proving “knowing” unauthorized prescribing post-Ruan

The court accepted that the government had to prove Fletcher knew or intended his prescriptions were unauthorized, and treated the “authorization” question as whether the prescriptions were for a legitimate medical purpose in the usual course of professional practice.

The panel pointed to two major evidentiary pillars:

Expert standard-of-care testimony (Dr. King) that Fletcher ignored required risk assessments (including substance-abuse history), failed to respond appropriately to abnormal drug screens and noncompliance, and continued opioids despite red flags and lack of pain improvement.
Circumstantial proof of knowledge via clinic-wide practices and Fletcher’s own conduct: signing “stacks” of prescriptions; not examining patients personally; delegating exams; prescribing at volumes that staff said would “throw up red flags”; awareness of overdoses, intoxication in the lobby, and pervasive diversion signals; and yet no meaningful safeguards—supporting an inference of deliberate blindness under United States v. Stanton and United States v. Anderson.

Notably, the court insulated the result from the disputed patient-records issue: even if the records should have been excluded, the convictions stood on other evidence; and Dr. King could rely on the materials under Fed. R. Evid. 703.

2. Second waiver of counsel: no automatic requirement of a renewed full colloquy

The court acknowledged the district court’s “haste” on June 6: it accepted Fletcher’s decision to proceed pro se without asking follow-up questions and without repeating warnings. Nonetheless, it upheld the waiver under the “totality of the circumstances.”

The reasoning proceeded in two steps:

Clear and unequivocal assertion: Fletcher made multiple, near-immediate statements that he did not want or need a lawyer and would represent himself at the upcoming trial. Any earlier discussion about preferring Statman was treated as part of a decision tree, not fatal equivocation. Conditionality (wanting counsel only if counsel is conflict-free) did not negate unequivocality.
Knowing and intelligent waiver: The court placed weight on Fletcher’s “fresh” experience—he had already undergone a thorough Faretta hearing in August 2023 and then represented himself for nine months (motions, discovery, hearings, pretrial proceedings). He briefly sought counsel, but no substantive representation occurred before he returned to pro se status. Because the case’s complexity and the government’s evidentiary posture did not materially change, the court concluded he understood the dangers in a practical, experiential sense, consistent with Tovar’s non-scripted approach.

The panel also explicitly flagged systemic concerns: rigid insistence on a repeat colloquy for experienced pro se defendants could incentivize strategic behavior, given that Faretta errors are structural under Jones v. Jamrog.

3. Due process: secret advice from a disbarred lawyer is not a state-attributable deprivation

Fletcher framed the disbarred attorney’s involvement as a fundamental-fairness problem. The court rejected the claim because due process requires a nexus to state action. The advisor was a private actor, not attributable to the government under Lindke v. Freed and Polk County v. Dodson.

The court separately rejected the notion that the trial judge had a duty to intervene: under Cuyler v. Sullivan, courts must act when they know or reasonably should know of a problem. Here, Fletcher concealed the advisor’s role until after trial, including during the June 6 call when attendees were expected to identify themselves. Absent knowledge or a reason to suspect, there was no due-process violation in the court’s failure to “police” private communications.

C. Impact

Second-waiver doctrine (practical rule): In the Sixth Circuit, a defendant who (i) previously received a valid Faretta colloquy and (ii) recently and substantially proceeded pro se may validly waive counsel again after a brief reassertion, even without a renewed Bench Book-style colloquy, so long as the totality of circumstances shows an “eyes open” choice.
Practical implication: District courts are encouraged to ask at least some confirming questions, but the appellate court will not necessarily reverse solely because the second colloquy was abbreviated or absent where the record shows robust prior warnings and meaningful pro se experience.
Physician prosecutions post-Ruan: The opinion reinforces that knowledge of unauthorized prescribing can be inferred from “red flags,” extreme volume, cursory/nonexistent exams, and failure to implement safeguards—framed as deliberate blindness consistent with United States v. Stanton and United States v. Anderson.
Due process limits for “shadow counsel”: The decision draws a sharp line: clandestine reliance on an unlicensed advisor is not a due-process claim absent state attribution, and defendants who waive counsel cannot repackage the consequences of self-representation as ineffective-assistance-like claims.

IV. Complex Concepts Simplified

“Authorized” prescription (21 U.S.C. § 841(a)(1) / 21 C.F.R. § 1306.04(a)): A doctor’s prescription is “authorized” only if issued for a legitimate medical purpose in the usual course of professional practice. If the doctor is essentially using prescription power as a drug-distribution mechanism—e.g., ignoring obvious diversion, failing to examine, and persisting despite glaring abuse signals—the prescription can be treated as “unauthorized.”
Ruan mens rea: After Ruan v. United States, it is not enough that the prescribing was objectively outside professional norms; the government must also prove the doctor knew (or intended) that it was unauthorized. That knowledge can be proved indirectly, including by showing deliberate blindness to obvious facts.
Deliberate blindness (closing one’s eyes): A factfinder may infer knowledge when a defendant is aware there is a high probability of wrongdoing and intentionally avoids confirming it. Here, repeated red flags plus continued high-volume prescribing supported that inference.
Faretta waiver: A defendant may represent himself, but only if he clearly chooses that path and understands the disadvantages. Courts often give warnings through a structured colloquy. This opinion emphasizes that the ultimate question is understanding, not rote recitation—especially when the defendant has already lived the disadvantages through months of pro se litigation.
State action (due process): Due process protects against unfairness caused by the government (including courts), not purely private misconduct. A private “advisor,” even one committing unauthorized practice, is not automatically transformed into state action.

V. Conclusion

United States v. Michael Fletcher affirms three important points: (1) post-Ruan, physician knowledge that prescribing is unauthorized can be proven through extensive circumstantial evidence, including deliberate blindness to obvious red flags; (2) a second waiver of counsel shortly before trial can be valid without a renewed, full Bench Book-style colloquy when the defendant recently proceeded pro se after a proper Faretta hearing and the record shows an “eyes open” choice; and (3) a defendant’s secret reliance on advice from a disbarred attorney, however troubling, does not constitute a due-process violation absent state-attributable conduct or a problem the court knew or reasonably should have known existed.