Jury instructions on conspiracy to unlawfully distribute controlled substances; 21 USC §§ 846 & 841; Instruction on the correct mens rea; Ruan v United States; United States v Anderson; United States v Bauer; United States v Stanton; Sufficiency of the evidence; Conspiracy to unlawfully distribute; Health-care fraud & conspiracy to commit it; 18 USC §§ 347 & 349; Conspiracy to launder money; § 1956; Expert testimony; Admission of a summary bar graph; Testimony of a DEA investigator; Whether a lay witness impermissibly provided a “qualitative assessment”; Sentencing; Drug quantity calculation; Use of intended loss rather than actual loss; United States v You; The intended loss calculation; Restitution

Although the jury instruction for conspiring to unlawfully distribute controlled substances here did not include a Ruan instruction on a defendant’s subjective knowledge, the court noted it “has consistently held that Ruan is satisfied where the district court provides a deliberate-ignorance instruction like the one here. Those holdings” were binding. It further held that: (1) there was sufficient evidence to support defendants’ convictions and (2) they were not entitled to relief based on their evidentiary, sentencing, and restitution issues. Defendant-Campbell, a doctor, owned a primary-care facility and defendant-Dyer was a nurse practitioner who worked there. A jury convicted both of conspiring to unlawfully distribute controlled substances, health-care fraud and conspiracy to commit it, and money laundering. The court first addressed their claim that when instructing the jury on conspiracy to unlawfully distribute controlled substances, the district court failed to instruct it on the mens rea needed for conviction as set forth in Ruan, i.e., “a defendant unlawfully distributes controlled substances only where he knows that he is ‘acting in an unauthorized manner, or intend[s] to do so.’” The court explained that post-Ruan it has “issued a trio of opinions involving jury instructions nearly identical to those” here – Anderson, Bauer, and Stanton. Those decisions required the court to affirm. As to the sufficiency of the evidence on the conspiracy to unlawfully distribute charge, it rejected their claim that the “government presented insufficient evidence of agreement and participation.” It found that the “government provided sufficient evidence of an agreement between Campbell and Dyer to unlawfully distribute controlled substances, their knowledge and intent to join the conspiracy, and their participation in it.” And it concluded that even “assuming the acquittals on the § 841 counts mean that this court must disregard the patients named in those counts, there was ample evidence to convict Defendants of conspiracy to unlawfully distribute. Although the government’s experts focused their testimony on five named patients, the jury heard about countless other patients who received opioids from Campbell and Dyer.” There was also sufficient evidence to support the health-care fraud and conspiracy convictions. They relied “on a practice called ‘incident-to’ billing, under which a provider can bill using the 99214 code for services provided by ‘mid-level practitioners’ who are not doctors. . . . But the government presented evidence that [their] services would not qualify for incident-to billing.” Their primary argument as to the conspiracy to launder money conviction was that there was insufficient evidence of health-care fraud. Affirmed.