Waiver of Remmer Uncertainty & Willful-Blindness (“Ostrich”) Knowledge in Medicare Billing Fraud

1. Introduction

United States v. Carrie Musselman arises from an “integrated” chiropractic/medical practice in Illinois that billed Medicare for services and products using codes and provider identifiers that yielded higher reimbursement. The defendant, Carrie Musselman, owned and operated the practice and oversaw billing. After a 13-day jury trial, she was convicted of healthcare fraud and several wire-fraud counts (with acquittals on other counts).

On appeal, Musselman focused on two trial-integrity issues that commonly recur in federal criminal practice:

• Extraneous juror information: a jury foreperson “Googled how to be a good foreperson” and prepared a deliberation “roadmap,” derived partly from online articles, one of which discussed (incorrectly for criminal cases) majority and super-majority verdict options.
• Willful blindness (“ostrich”) instruction: whether evidence supported instructing the jury that “knowledge” can be proved if the defendant believed fraud was highly probable and deliberately avoided confirming it.

The Seventh Circuit affirmed, articulating two practical rules: (i) even assuming a Remmer-type presumption applies to juror exposure to outside material, the government can rebut it on a record showing no reasonable possibility of effect on the verdict; and (ii) a defendant who requests no further inquiry cannot later leverage “uncertainty” about what entered deliberations as a basis for reversal. Separately, the court clarified how “psychological avoidance” and “heightened obligations” can justify an ostrich instruction in a billing-fraud case, particularly where the defendant relies on interested sources instead of obvious neutral avenues.

2. Summary of the Opinion

A. Juror outside research

The court declined to decide whether the Remmer presumption governed this type of outside research, holding that even if the presumption applied, it was rebutted because there was no reasonable possibility the verdict was affected. The panel emphasized the limited nature of the foreperson’s notes, the lack of evidence that the “majority verdict” language was shared or used, the jury’s adherence to unanimity instructions (including individual polling), and the non-case-specific nature of the material.

Critically, the court held that Musselman could not obtain relief based on lingering uncertainty about whether improper “majority” concepts entered deliberations because she expressly urged the district court not to conduct further inquiry—waiving the evidentiary hearing that would have been the appropriate remedy for uncertainty.

B. Ostrich instruction

Reviewing for abuse of discretion and viewing the evidence in the government’s favor, the court held the ostrich instruction was supported. A reasonable jury could find both: (1) extensive “red flags” suggesting high probability of fraud in provider-attribution and coding; and (2) deliberate avoidance, particularly through failing to ask “natural and obvious questions” despite “heightened obligations” as owner and billing overseer, and by relying on financially interested vendors/consultants while leaving obvious neutral avenues (e.g., Medicare or independent certified coders) unpursued.

3. Analysis

3.1 Precedents Cited

A. Outside influence on the jury: the Remmer line and Seventh Circuit standards

• Remmer v. United States, 347 U.S. 227 (1954) ("Remmer I"): The foundational rule that private communications with a juror “about the matter pending before the jury” are “presumptively prejudicial,” and that the government bears a heavy burden to show harmlessness “after notice to and hearing of the defendant.” Musselman invoked Remmer I to argue that the foreperson’s research created a presumption of prejudice requiring a new trial.
• Remmer v. United States, 350 U.S. 377 (1956) ("Remmer II"): The Supreme Court’s later intervention following the ordered hearing, ultimately resulting in a new trial. The Seventh Circuit referenced it as historical context for the remedial “Remmer hearing” framework.
• Smith v. Phillips, 455 U.S. 209 (1982): Used to cabin Remmer, stressing that not every potentially compromising situation mandates a new trial, given practical limits on insulating jurors from all contact.
• United States v. Olano, 507 U.S. 725 (1993): Supplies the “ultimate inquiry”: whether the intrusion affected deliberations and the verdict—allowing the panel to affirm even without resolving the scope of the Remmer presumption.
• Hall v. Zenk, 692 F.3d 793 (7th Cir. 2012): Cited for the point that the reach of the Remmer presumption remains debated; the panel leveraged this to avoid deciding the doctrinal trigger question.
• United States v. Sanders, 962 F.2d 660 (7th Cir. 1992): Provides the Seventh Circuit’s rebuttal test: the presumption is rebutted if there is “no reasonable possibility” the verdict was affected; also lists key evaluation factors (extent/nature, curative instructions, jury responses).
• Carter v. Tegels, 135 F.4th 534 (7th Cir. 2025): Reiterates that the government must show the intrusion was harmless and that a hearing is the procedural mechanism when a presumptively prejudicial contact occurs.
• United States v. Warner, 498 F.3d 666 (7th Cir. 2007) and United States v. Sababu, 891 F.2d 1308 (7th Cir. 1989): Support the “substantial discretion” afforded to district courts in assessing prejudice and rebuttal.
• United States v. Bruscino, 687 F.2d 938 (7th Cir. 1982) (en banc): Emphasizes the trial court’s superior vantage point to judge the probability of prejudice from documents.
• United States v. Vasquez-Ruiz, 502 F.3d 700 (7th Cir. 2007): Cited for the proposition that the government bears the risk of uncertainty—yet the panel limited its practical bite here by holding that uncertainty would call for a hearing, and Musselman waived that hearing.
• Tanner v. United States, 483 U.S. 107 (1987): In a footnote, used to clarify that Federal Rule of Evidence 606(b)(2) permits juror testimony about external influences—undercutting the notion that further inquiry was categorically forbidden.

B. Willful blindness and the ostrich instruction

• United States v. Mikaitis, 33 F.4th 393 (7th Cir. 2022): Central modern formulation: ostrich instruction requires (1) defendant claims lack of guilty knowledge; and (2) evidence from which a jury could conclude deliberate avoidance—plus caution about the “unique risk” of conviction for negligence/indifference. The panel also borrowed Mikaitis’s “heightened obligations” concept.
• United States v. Pabey, 664 F.3d 1084 (7th Cir. 2011): Describes purpose of instruction (knowledge includes deliberate avoidance), identifies “two types” of avoidance evidence (affirmative actions and “psychological avoidance”), and stresses the instruction is inappropriate where evidence shows only what the defendant “should have known.”
• United States v. Tantchev, 916 F.3d 645 (7th Cir. 2019): Provides two key limits: (i) don’t give the instruction when evidence points solely to direct knowledge; (ii) it may be appropriate if evidence supports both actual knowledge and deliberate avoidance, even if government argues actual knowledge. Also emphasizes that willful blindness must surpass recklessness, and that close cases favor deference to the trial judge.
• United States v. Carrillo, 435 F.3d 767 (7th Cir. 2006): Confirms the government may proceed on both actual-knowledge and willful-blindness theories.
• United States v. Giovannetti, 919 F.2d 1223 (7th Cir. 1990): The “binary choice” caution (actual knowledge vs. complete innocence) and early articulation of “psychological avoidance”; used here as a baseline that later cases refine.
• United States v. Macias, 786 F.3d 1060 (7th Cir. 2015): Criticizes “judge as psychologist” framing yet preserves the idea that failure to ask obvious questions can constitute deliberate ignorance where it is “unnatural” and a “ducking of responsibility.”
• United States v. Leahy, 464 F.3d 773 (7th Cir. 2007): Supports giving the instruction when numerous red flags would be obvious to someone with the defendant’s training and experience, yet the defendant asks no questions.
• United States v. Ramirez, 574 F.3d 869 (7th Cir. 2009): Frames the “ultimate question” for psychological avoidance and acknowledges close-call difficulty in distinguishing willful blindness from negligence.
• United States v. Ciesiolka, 614 F.3d 347 (7th Cir. 2010): Highlights that the inquiry is not “were any steps taken,” but “what steps were avoided” that would produce “full or exact knowledge”; the panel used this to reject Musselman’s “I asked someone” defense where inquiries were plausibly designed not to yield real answers.
• United States v. Pierotti, 777 F.3d 917 (7th Cir. 2015): Used to acknowledge limits: the law does not require above-and-beyond investigation in all cases; the panel distinguished it on “heightened obligation” facts.

3.2 Legal Reasoning

A. Juror outside research: “ultimate inquiry,” harmlessness, and waiver

The panel proceeded in three moves:

1. Sidestep the trigger question: Because Seventh Circuit and Supreme Court doctrine leaves the scope of the Remmer presumption contested (citing Hall v. Zenk), the court assumed arguendo the presumption applied.
2. Apply the Sanders/Warner harmlessness lens under Olano’s “ultimate inquiry”: The district court effectively used the correct standard—whether there was a reasonable possibility the verdict was affected—considering factors such as the nature of the material, the jury’s conduct, and the fact of individual polling. The Seventh Circuit stressed record features that made prejudice unlikely: the “majority verdict” language was not present in the one-page “roadmap” taken into the jury room; the foreperson’s recounted takeaway was organizational; her noted “keep talking” directive aligned with unanimity; jurors appeared attentive; and the article was unrelated to guilt facts.
3. Reject “uncertainty” as a shortcut to reversal because Musselman waived the hearing: Although United States v. Vasquez-Ruiz recognizes the government bears the risk of uncertainty, the panel held uncertainty would warrant (at most) a hearing, not a new trial. Musselman expressly asked the district court to “not conduct any further inquiry,” thereby waiving the principal mechanism to resolve uncertainty. The court then added an important corrective: further inquiry was not categorically barred by Federal Rule of Evidence 606(b); Rule 606(b)(2) allows inquiry into “external influence,” consistent with Tanner v. United States.

Doctrinally, the opinion tightens the interaction between Remmer and waiver: a defendant cannot simultaneously (i) resist fact-finding designed to test prejudice and then (ii) claim entitlement to relief because prejudice cannot be disproved with certainty.

B. Ostrich instruction: deliberate avoidance in a regulated, code-driven billing environment

The court’s analysis rested on settled Seventh Circuit structure:

1. Not a binary-choice case (Giovannetti; Tantchev): The panel held the record could support both actual knowledge and deliberate avoidance. Even if the government argued actual knowledge, that does not preclude willful-blindness proof where the evidence also supports “red flag” awareness and deliberate non-confirmation.
2. Avoidance must exceed negligence (Pabey; Mikaitis): The panel emphasized the instruction’s risk (negligence-based conviction) but found evidence supporting deliberate avoidance—primarily “psychological avoidance” as refined in Macias and applied in Mikaitis.
3. Heightened obligations + red flags + unnatural non-inquiry: Drawing from Mikaitis and Leahy, the panel treated Musselman’s role (owner; chiropractor; billing overseer; training and warnings received) as imposing heightened practical obligations to inquire when confronted with repeated, specific compliance warnings. The evidence of red flags included: repeated warnings about “Incident To” requirements; persistent misattribution billing under physicians not on-site; knowledge of a provider’s Medicare bar coupled with retroactive chart-signing and billing under another provider; repeated employee concerns about neurostimulator coding and extreme reimbursement; explicit vendor caution about billing allergy drops yet billing them as injections.
4. “Token” inquiry is not a safe harbor (Ciesiolka; Tantchev): The panel accepted that Musselman made some inquiries, but held that the legally relevant question is what she avoided doing to gain “full or exact knowledge.” Repeated reliance on vendors/affiliates with financial incentives—especially after warnings not to do so—combined with failure to use obvious neutral channels (e.g., Medicare, independent certified coders) permitted a finding of willful blindness surpassing recklessness.
5. Distinguishing Pierotti: The panel acknowledged that the law does not demand “above-and-beyond” investigation in every context, but held Musselman’s regulated-billing setting and heightened responsibilities made Pierotti inapposite.

3.3 Impact

• Juror-misconduct litigation strategy: The decision warns defendants that opposing post-verdict inquiry can operate as a waiver of the most appropriate remedy (a hearing) and foreclose appellate relief premised on unresolved uncertainty. It also reassures trial courts that they can—when necessary—ask limited questions about external influences under Rule 606(b)(2), consistent with Tanner v. United States.
• Practical administration of the Remmer framework: Without expanding Remmer’s scope, the court reinforces that Seventh Circuit review focuses on the “reasonable possibility” of effect on the verdict and accords substantial deference to trial judges assessing prejudice on the ground (Warner; Bruscino).
• Healthcare fraud and compliance governance: The opinion strengthens the government’s ability to seek ostrich instructions against owners/operators who manage billing in highly regulated reimbursement systems. It signals that “I asked someone” defenses may fail where the “someone” is an economically interested vendor/consultant and obvious neutral routes to accurate coding guidance are left unused, particularly amid repeated internal warnings.
• Instruction practice in close calls: The panel’s emphasis on deference in close cases (Ramirez; Tantchev) will likely be cited to uphold ostrich instructions where the trial judge identifies a plausible “didn’t know then, knows now” defense narrative and a record of red flags.

4. Complex Concepts Simplified

• Remmer presumption: A starting assumption that certain outside contacts with jurors are prejudicial, shifting the burden to the government to show the contact was harmless—typically tested through a focused evidentiary hearing (“Remmer hearing”).
• Harmless intrusion / “reasonable possibility” test: Even where the presumption is assumed, the question becomes whether there is a reasonable possibility the outside material affected deliberations and the verdict. If not, no new trial.
• Federal Rule of Evidence 606(b) and external influence: Jurors generally cannot testify about deliberation content, but Rule 606(b)(2) permits limited testimony about whether extraneous information or an outside influence reached the jury.
• Ostrich (willful blindness) instruction: A jury may treat “deliberate avoidance” as “knowledge” if the defendant believed wrongdoing was highly probable and deliberately avoided confirming it. It cannot be used to convict for mere carelessness.
• Psychological avoidance: Not a clinical diagnosis; it is an inference from circumstances that the defendant’s failure to ask obvious questions was unnatural and served to avoid learning the incriminating truth.
• “Heightened obligations” (in practice): Certain roles—like business owners, licensed professionals, or billing supervisors—make it more “natural and obvious” that they would verify glaring compliance problems; persistent non-inquiry can therefore support willful blindness.
• “Incident To” billing (as used here): A Medicare billing pathway allowing some mid-level services to be billed under a physician’s name only if strict supervision and presence requirements are met; if not, billing must reflect the actual rendering provider.

5. Conclusion

United States v. Carrie Musselman is less about expanding doctrine than about enforcing procedural and evidentiary discipline in two recurring areas. First, it confirms that claims of juror exposure to extraneous material hinge on whether there is a reasonable possibility the verdict was affected—and that a defendant cannot block the hearing mechanism for resolving uncertainty and then claim entitlement to reversal because uncertainty remains. Second, it affirms that in regulated billing fraud, repeated red flags plus a defendant’s heightened responsibilities can justify an ostrich instruction where the defendant’s “inquiries” are routed to interested sources and obvious neutral avenues are avoided. The result is a decision that will likely be cited both for post-verdict juror-inquiry waiver principles and for a robust, role-sensitive understanding of willful blindness in healthcare reimbursement prosecutions.