United States v. Musselman: Harmless-Foreperson Internet “Roadmap” Misconduct and Heightened-Duty Willful Blindness for the Ostrich Instruction

1. Introduction

United States v. Musselman arises out of a Medicare fraud prosecution of Carrie Musselman, a chiropractor who expanded her Illinois practice into an “integrated” medical clinic and then billed Medicare using coding and attribution practices that the government characterized as systematically false and financially lucrative.

The appeal presented two issues that increasingly recur in modern criminal trials:

• Juror internet research: After the verdict, the district court discovered a typed “JURY DELIBERATIONS” roadmap created by the foreperson based partly on online articles about how to be an effective foreperson. One of those articles included a passage suggesting juries could adopt “majority” or “super-majority” voting—concepts incompatible with unanimity in federal criminal cases.
• Deliberate-ignorance (“ostrich”) instruction: The district court instructed the jury it could find Musselman acted “knowingly” if she believed it was highly probable the clinic submitted improper and misattributed Medicare claims and she deliberately acted to avoid confirming that fact.

The Seventh Circuit affirmed, holding (i) the internet-derived material did not create a reasonable possibility of affecting the verdict (even assuming the Remmer presumption applied), and (ii) the trial record supported giving the ostrich instruction, especially given Musselman’s role and the accumulation of “red flags.”

2. Summary of the Opinion

3. Analysis

3.1 Precedents Cited

A. Juror-contact / extraneous influence framework

• Remmer v. United States, 347 U.S. 227 (1954) (“Remmer I”) and Remmer v. United States, 350 U.S. 377 (1956) (“Remmer II”): The opinion treats Remmer I as the source of the “presumptively prejudicial” rule for private communications or contacts with jurors “about the matter pending,” coupled with the government’s burden (after notice and hearing) to show harmlessness. The panel, however, avoids resolving how broadly the presumption applies—an issue it notes remains contested—because the outcome is the same even if the presumption is assumed.
• Smith v. Phillips, 455 U.S. 209 (1982): Used to stress that not every potentially compromising situation mandates a new trial; absolute insulation of jurors is unrealistic.
• United States v. Olano, 507 U.S. 725 (1993): Supplies the “ultimate inquiry”: whether the intrusion affected deliberations and the verdict. The Seventh Circuit frames the district court’s analysis as aligned with this functional test, regardless of whether the court used “presumption” language.
• Hall v. Zenk, 692 F.3d 793 (7th Cir. 2012): Cited for the proposition that the scope of the Remmer presumption is subject to “much debate,” reinforcing the panel’s decision to assume (rather than decide) applicability.
• United States v. Sanders, 962 F.2d 660 (7th Cir. 1992): Provides the Seventh Circuit’s rebuttal articulation: the presumption is rebutted if there is “no reasonable possibility” the verdict was affected, and lists practical factors for district courts to consider (extent/nature of contact, curative instructions, jury responses).
• Carter v. Tegels, 135 F.4th 534 (7th Cir. 2025): Reinforces “intrusion was harmless” as the operative test and notes that if presumptively prejudicial contact occurs, a hearing is the mechanism to test harmlessness—important to the waiver analysis here.
• 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 evaluating prejudice and harmlessness.
• United States v. Bruscino, 687 F.2d 938 (7th Cir. 1982) (en banc): Underlines institutional competence: district courts are better positioned to gauge the probability of prejudice from particular materials.
• United States v. Vasquez-Ruiz, 502 F.3d 700 (7th Cir. 2007): Cited for the “risk of uncertainty” principle (government bears it), but the panel distinguishes remedy: uncertainty would typically prompt an evidentiary hearing, not an automatic new trial.
• Tanner v. United States, 483 U.S. 107 (1987): Appears in the Rule 606(b) discussion: juror testimony is permissible to establish “external influence,” contradicting the district court’s belief that further inquiry would necessarily be barred.

B. Deliberate ignorance (“ostrich”) instruction doctrine

• United States v. Mikaitis, 33 F.4th 393 (7th Cir. 2022): Provides the governing test and the caution that the instruction risks conviction for negligence; also supplies the “heightened duties” framing (e.g., professionals with licensing exposure) and the proposition that failure to ask “natural and obvious questions” can support the instruction.
• United States v. Pabey, 664 F.3d 1084 (7th Cir. 2011): Explains the instruction’s purpose and recognizes two evidentiary pathways: “physical” avoidance actions and “psychological avoidance.”
• United States v. Tantchev, 916 F.3d 645 (7th Cir. 2019): Supplies two key guardrails: (i) the instruction is improper where the evidence points solely to actual knowledge; but (ii) it is permissible when evidence supports both actual knowledge and deliberate avoidance. Also states willful blindness must “surpass recklessness.”
• United States v. Giovannetti, 919 F.2d 1223 (7th Cir. 1990): The canonical “binary choice” warning and the early articulation of “psychological avoidance” as cutting off curiosity “by an effort of will.” The panel uses it as doctrinal background while recognizing later Seventh Circuit skepticism about “playing psychologist.”
• United States v. Carrillo, 435 F.3d 767 (7th Cir. 2006): Used to confirm it is permissible for the government to proceed on both actual-knowledge and deliberate-avoidance theories.
• United States v. Macias, 786 F.3d 1060 (7th Cir. 2015): Critiques “psychological avoidance” phrasing but preserves the concept: sometimes failure to ask questions is “unnatural” and functionally equivalent to evasive conduct.
• United States v. Leahy, 464 F.3d 773 (7th Cir. 2007): Supports giving the instruction where numerous “red flags” obvious to someone with the defendant’s training and experience were ignored.
• United States v. Ramirez, 574 F.3d 869 (7th Cir. 2009): Supplies the “ultimate question” for psychological avoidance: what the defendant knew and whether that supports a reasonable inference of deliberate ignorance; also notes close-call nature of the avoidance/indifference line.
• United States v. Ciesiolka, 614 F.3d 347 (7th Cir. 2010): Used to emphasize that the focus is on “steps the defendant avoided taking” to prevent acquiring full knowledge. It also stands for the counterexample: genuine efforts to confirm may make the instruction inappropriate.
• United States v. Pierotti, 777 F.3d 917 (7th Cir. 2015): Invoked by Musselman to argue there is no duty to engage in “above-and-beyond” verification (asking a lawyer). The panel distinguishes it by emphasizing “heightened obligations” in regulated/professional contexts and the obviousness of the red flags here.

3.2 Legal Reasoning

A. Foreperson’s internet research: assumed presumption, harmlessness found

Key reasoning steps:

• Correct “ultimate inquiry,” even without “Remmer” labels: Relying on United States v. Olano, the panel holds the district court effectively applied the right test—whether there was a reasonable possibility the verdict was affected—consistent with United States v. Sanders and United States v. Warner.
• Nature and transmission of the extraneous material: The typed “roadmap” that entered the jury room did not contain the problematic “majority” or “super-majority” language. The foreperson’s recorded guidance (“Keep talking”) aligned with unanimity rather than undermining it.
• Salience and recall: The foreperson’s recollection centered on organization and charting, supporting an inference that the unanimity-undermining passage was not influential (and possibly not even “taken” by the foreperson as guidance worth adopting).
• Structural safeguards and indicators of proper deliberation: The panel stresses attentiveness during trial and, critically, the individual juror poll confirming the verdict—an empirical check against a “majority vote” process.
• Content not tied to merits: Echoing Warner, the article was “unrelated to the facts of the case or guilt,” making prejudice less likely than when jurors research substantive law, facts, or parties.

B. Remedy and waiver: uncertainty does not equal automatic reversal

Musselman attempted to convert residual uncertainty about whether the majority-vote concept was shared into entitlement to a new trial, citing United States v. Vasquez-Ruiz. The Seventh Circuit responds in two steps:

• The remedy for uncertainty is a hearing, not an automatic new trial: Drawing on Carter v. Tegels, the panel notes that where presumptive prejudice is in play, an evidentiary hearing is the tool to test harmlessness.
• Musselman waived that tool: She expressly urged the district court “not conduct any further inquiry,” then later reversed course. The panel treats the resulting uncertainty as “invited,” foreclosing relief on appeal.

Notably, the panel also clarifies—contrary to the district court’s view—that further inquiry would not necessarily have been barred by Federal Rule of Evidence 606(b) because Federal Rule of Evidence 606(b)(2) permits juror testimony about “external influence,” citing Tanner v. United States.

C. Ostrich instruction: “heightened obligation,” red flags, and “echo-chamber” verification

On deliberate ignorance, the Seventh Circuit uses a familiar two-part framework (from Mikaitis and Pabey): the defendant claims lack of knowledge, and the government adduces evidence from which a jury could find deliberate avoidance—beyond mistake, carelessness, or negligence.

What made the instruction permissible here:

• Not a “binary choice” case: The panel rejects the argument that evidence pointed solely to actual knowledge (where United States v. Giovannetti and United States v. Tantchev would caution against the instruction). Rather, as in Tantchev, the same facts could support either actual knowledge or deliberate avoidance.
• Accumulation of conspicuous red flags: The opinion catalogues repeated warnings and anomalies across three billing domains:
  • Improper “Incident To”/misattribution under physicians’ names despite off-site physicians and repeated warnings.
  • Neurostimulator billed under code L8679 meant for surgically implanted 30+ day devices, despite the device being adhesive and temporary—and despite repeated staff concerns.
  • Allergy drops provided but injections billed, despite vendor training and internal warnings about audit “red flags.”
• “Heightened obligation” to inquire: The court extends the logic of Mikaitis (and similar “training/experience” language in Leahy): as owner and overseer of billing in a heavily regulated reimbursement scheme, Musselman could be found to have a heightened responsibility to ask natural and obvious questions when confronted with repeated warnings and implausible reimbursement patterns.
• Psychological avoidance via selective verification: A critical move is treating Musselman’s “inquiries” as potentially non-exculpatory because they were directed to sources with incentives to validate the billing (e.g., vendors/manufacturer-affiliated consultants), despite being warned not to rely on such sources. The panel frames this as surpassing recklessness (Tantchev) and fitting the “steps avoided taking” concept from Ciesiolka: she could have sought truly independent/authoritative confirmation (e.g., Medicare, neutral certified coders), but did not.

The panel distinguishes United States v. Pierotti: asking a lawyer about gun laws was “above-and-beyond” in that context, whereas here the red flags were pervasive, the activity was in a regulated billing environment, and Musselman’s role created heightened incentives and duties to verify through reliable channels.

3.3 Impact

A. Juror-internet research: a pragmatic appellate template

The case is also a cautionary precedent on litigation strategy: a defendant who resists further inquiry into potential prejudice may be found to have waived the hearing that would otherwise resolve uncertainty. That waiver can be dispositive on appeal.

B. Deliberate ignorance in regulated reimbursement fraud

Future cases are likely to cite Musselman for the proposition that “some inquiry” does not defeat willful blindness when it is strategically incomplete—i.e., when it is directed to an “echo-chamber” and avoids the most probative sources of truth. The decision may also encourage prosecutors to develop evidence showing the defendant was warned about unreliable advice sources (e.g., vendors) and nevertheless relied on them.

4. Complex Concepts Simplified

• “Incident To” billing: A Medicare billing mechanism allowing a physician to bill (at a higher rate) for services performed by mid-level practitioners only when specific supervision and participation requirements are met—especially the physician’s physical presence and immediate availability.
• “Remmer presumption”: A doctrine from Remmer I that certain outside contacts with jurors about the case are presumed prejudicial, shifting the burden to the government to prove harmlessness—often through a “Remmer hearing.”
• “Harmlessness / no reasonable possibility” test: The Seventh Circuit’s way (via Sanders and related cases) of asking whether there is any reasonable chance the outside influence affected the verdict. If not, the conviction stands.
• Federal Rule of Evidence 606(b): Limits juror testimony to impeach a verdict, but Federal Rule of Evidence 606(b)(2) allows jurors to testify about “external influence” (e.g., outside information entering deliberations), which can justify limited post-verdict inquiry.
• “Ostrich” (willful blindness) instruction: A jury instruction allowing “knowledge” to be found when a defendant suspects wrongdoing is highly probable and deliberately avoids confirming it. The law draws a line between deliberate avoidance (culpable) and negligence/carelessness (not enough).
• “Red flags” and “heightened obligation”: “Red flags” are warning signs that would prompt a reasonable person to ask questions. A “heightened obligation” arises when someone’s professional role or control over a regulated process (like medical billing) makes ignoring red flags less plausibly innocent.

5. Conclusion

United States v. Musselman reinforces two core Seventh Circuit themes. First, juror internet activity—even touching on unanimity—does not compel a new trial where the district court reasonably finds no meaningful pathway by which the material could have affected deliberations, particularly when unanimity instructions and juror polling confirm the verdict’s integrity. Second, the decision confirms that willful blindness can be inferred in healthcare fraud cases from repeated red flags, a defendant’s control role, and the selective pursuit of validation from interested sources while avoiding obvious, authoritative verification channels—making the ostrich instruction a permissible tool even in “close call” cases where the evidence could also support actual knowledge.

Note: This commentary is informational and does not constitute legal advice.