United States v. Tariq Omar

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 24a0178p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

┐

UNITED STATES OF AMERICA,

│

Plaintiff-Appellee, │

> Nos. 22-1106/1107/1465/1568

│

v. │

│

JOSEPH BETRO (22-1106); MOHAMMED ZAHOOR (22-1107); │

TARIQ OMAR (22-1465); SPILIOS PAPPAS (22-1568), │

Defendants-Appellants. │

┘

Appeal from the United States District Court for the Eastern District of Michigan at Detroit.

No. 2:17-cr-20465—Denise Page Hood, District Judge.

Argued: October 24, 2023

Decided and Filed: August 14, 2024

Before: WHITE, NALBANDIAN, and MURPHY, Circuit Judges.

_________________

COUNSEL

ARGUED: Edward Bajoka, BAJOKA LAW GROUP PLLC, Detroit, Michigan, for Appellant

in 22-1106. Faisal Gill, GILL LAW FIRM, Washington, D.C., for Appellant in 22-1107. Kyle

Singhal, HOPWOOD & SINGHAL PLLC, Washington, D.C., for Appellant in 22-1465. Ronald

W. Chapman, II, CHAPMAN LAW GROUP, Troy, Michigan, for Appellant in 22-1568. Daniel

N. Lerman, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

ON BRIEF: Edward Bajoka, BAJOKA LAW GROUP PLLC, Detroit, Michigan, for Appellant

in 22-1106. Faisal Gill, GILL LAW FIRM, Washington, D.C., for Appellant in 22-1107. Kyle

Singhal, Shon Hopwood, HOPWOOD & SINGHAL PLLC, Washington, D.C., for Appellant in

22-1465. Ronald W. Chapman, II, CHAPMAN LAW GROUP, Troy, Michigan, for Appellant in

22-1568. Daniel N. Lerman, Jeremy R. Sanders, UNITED STATES DEPARTMENT OF

JUSTICE, Washington, D.C., for Appellee.

NALBANDIAN, J., delivered the opinion of the court in which MURPHY, J., joined in

full, and WHITE, J., joined in all but Section II.D. WHITE, J. (pp. 25–30), delivered a separate

concurring opinion.

Nos. 22-1106/1107/1465/1568 United States v. Betro, et al. Page 2

_________________

OPINION

_________________

NALBANDIAN, Circuit Judge. Joseph Betro, Mohammed Zahoor, Tariq Omar, and

Spilios Pappas conspired to defraud Medicare by giving patients medically unnecessary back

injections and bribing them with opioid prescriptions. The defendants then fraudulently billed

the injections through Medicare as “facet injections,” because those would be reimbursed at a

higher rate than the Marcaine injections that they provided. To supplement their ill-gotten gains,

they regularly ordered expensive and medically unnecessary urine-drug-testing panels and

referred patients to ancillary services like home healthcare in exchange for kickbacks.

After trial, a jury convicted each of them of conspiracy to commit healthcare fraud and

wire fraud under 18 U.S.C. § 1349 and healthcare fraud under 18 U.S.C. § 1347. They each now

raise various challenges to the validity of their individual convictions and the trial procedure.

We AFFIRM.

I.

Betro, Zahoor, Omar, and Pappas participated in a fraudulent healthcare scheme headed

by Mashiyat Rashid that subjected Medicare recipients to medically unnecessary back injections.

At their clinic, Tri-County, they falsely billed these injections to Medicare as “facet injections”

to maximize their reimbursements.1 To achieve their scheme, they followed a predetermined

protocol, luring patients with promises of large opioid prescriptions. In return, the doctors

received a percentage of whatever they billed in kickbacks.

And even though Medicare guidelines specified that patients should only receive facet

injections at most four or five times a year, the doctors billed their facet injections monthly. At

the same time, Pappas, Zahoor, and Betro agreed to order unnecessary urine tests and got

1

A facet injection uses a 3.5-to-4-inch needle to inject a spinal facet joint directly with a steroid and an

anesthetic for the purpose of pain relief. Tri-County, however, performed cheaper intramuscular back injections,

using needles that were 1.5 inches long—too short to reach the facet joint—and injected only Marcaine, a numbing

agent that lasts just a few hours, with no steroid.

Nos. 22-1106/1107/1465/1568 United States v. Betro, et al. Page 3

kickbacks when they referred patients to ancillary services like home healthcare. Then, to

conceal the scale of their opiate prescriptions from the DEA, all four defendants conspired to

drastically limit their working hours. That way, their prescriptions wouldn’t stand out from the

other pain doctors (who were working full-time).

But soon enough, the government caught on and realized that Tri-County’s injections

were medically unnecessary, suspending the clinic from future Medicare reimbursements.

Undeterred, the clinic reopened as “Tri-State” and picked up where it left off. Pappas, Zahoor,

and Betro each had patients complain that their Marcaine injections were painful and ineffective,

but they continued the same course of “treatment,” administering the same shots at the same

monthly clip. Omar, who left the clinic when it was still “Tri-County,” had also continued

giving injections in the face of similar patient complaints.

Yet, according to the patient charts, the shots were not so ineffective. Routinely, the

doctors at Tri-County ensured that they would “pass an audit” by following a “template,”

comprehensively reporting that every patient felt an “80 percent reduction in pain” because it

“wouldn’t . . . work to accurately record the amount of pain reduction the patient actually had.”

R. 439, Trial Tr. Vol. 4, p. 62, PageID 4548; R. 441, Trial Tr. Vol. 6, pp. 108–10, PageID 5061–

63.

For example, when recording the results of his treatment, Betro falsely reported that one

“[p]atient felt instant relief and patient tolerated procedure well.” R. 440, Trial Tr. Vol. 5, pp.

223–24, PageID 4900–01. And Zahoor’s notes weren’t much better, falsely and consistently

characterizing one patient’s pain as “elbow pain” and misrepresenting the duration of individual

visits. When the prospect of alternative treatments came up, Betro resisted them, noting that they

would be “more of a one-time thing” and thus decrease revenue. R. 441, pp. 147–48, PageID

5100–01.

All in all, Tri-County fraudulently billed over $132 million to Medicare. When the

authorities eventually caught up to the scheme, several of the defendants’ co-conspirators,

including Rashid, pleaded guilty. Betro, Zahoor, Omar, and Pappas, however, went to trial.

During the 15-day trial, the government presented the testimony of several cooperating witnesses

Nos. 22-1106/1107/1465/1568 United States v. Betro, et al. Page 4

who had pleaded guilty, including Rashid, along with other witnesses. The defendants all

testified on their own behalf. The jury eventually convicted them on all counts.

Zahoor, Omar, and Pappas filed motions for new trial, which Betro joined and the district

court denied. The four defendants now individually appeal their convictions and sentences, each

raising various challenges to the prosecution, evidence admission and exclusion, jury

instructions, and sentencing calculations.

II.

We review a district court’s “denial of a motion for a new trial for an abuse of

discretion.” United States v. Soto, 794 F.3d 635, 645 (6th Cir. 2015). And a “district court

abuses its discretion when it relies on clearly erroneous findings of fact, uses an erroneous legal

standard, or improperly applies the law.” United States v. Dado, 759 F.3d 550, 559 (6th Cir.

2014) (internal quotation marks omitted).

For instances when the defendant did not raise his claim below, “we review the record

only for plain error.” United States v. Coker, 514 F.3d 562, 568 (6th Cir. 2008). Plain error has

four elements: (1) an error, (2) that is clear and obvious, (3) that affected the defendant’s

substantial rights, and (4) whose “adverse impact seriously affected the fairness, integrity, or

public reputation of the judicial proceedings.” United States v. Emuegbunam, 268 F.3d 377, 406

(6th Cir. 2001). But an error satisfies all four elements only “in exceptional circumstances”

where it is “so plain that the trial judge and prosecutor were derelict in countenancing it.” Id.

A.

First, Pappas, Zahoor, and Betro allege that the evidence of their knowledge and intent

was insufficient to convict them. When we review insufficiency challenges, we ask “whether

‘any rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.’” United States v. Hughes, 505 F.3d 578, 592 (6th Cir. 2007) (quoting

Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Importantly, “[t]he appellate court must view all

evidence and resolve all reasonable inferences in favor of the government.” Id.

Nos. 22-1106/1107/1465/1568 United States v. Betro, et al. Page 5

Because Pappas, Zahoor, and Betro were convicted of conspiracy to commit healthcare

fraud and wire fraud under 18 U.S.C. § 1349 and healthcare fraud under 18 U.S.C. § 1347, we

look at the essential elements of these crimes.

First, § 1349 requires a finding that the defendants agreed to commit fraud and joined the

conspiracy both knowingly and voluntarily. United States v. Palma, 58 F.4th 246, 249 (6th Cir.

2023). Second, § 1347 requires the government to prove that the defendants knowingly (1)

devised and (2) executed a scheme to defraud a healthcare benefit program (3) with intent to

defraud. United States v. Anderson, 67 F.4th 755, 770 (6th Cir. 2023). But “[d]irect evidence of

fraudulent intent is not required.” Id. “[A] jury may consider circumstantial evidence and infer

intent from evidence of efforts to conceal the unlawful activity, from misrepresentations, from

proof of knowledge, and from profits.” United States v. Persaud, 866 F.3d 371, 380 (6th Cir.

2017) (quoting United States v. Agbebiyi, 575 F. App’x. 624, 634 (6th Cir. 2014)).

The prosecution’s evidence was sufficient for a reasonable trier of fact to find that each

element was met. At trial, Rashid testified that he had informed Pappas, Zahoor, and Betro

before hiring them that the clinic “attracted patients” with opioid prescriptions and that they

“would get a percentage of what they billed” as part of a “predetermined protocol.” R. 441, pp.

28–29, PageID 4981–82. According to Rashid, the three of them, despite billing for facet

injections, never actually performed them. But they billed Medicare for the injections because

facet injections “gave us the highest reimbursement.” Id. at 30, PageID 4983. Even though they

knew facet injections were only supposed to be used at most four or five times a year, they each

billed the injections monthly. A reasonable trier of fact could have found that all three of them

agreed to commit fraud and joined Rashid’s conspiracy both knowingly and voluntarily. Palma,

58 F.4th at 249; 18 U.S.C. § 1349.

As the scale of their conspiracy grew, Pappas, Zahoor, and Betro conspired to cut their

shifts to conceal the volume of their opiate prescriptions and thus stay under the DEA’s radar.

Additionally, the three of them agreed to order unnecessary urine tests and received kickbacks

for referring patients to ancillary services like home healthcare. And when Medicare eventually

discovered their facet injections were medically unnecessary, it suspended the Tri-County clinic.

But suspension would not halt their practice. They quickly resumed their operation under a new

Nos. 22-1106/1107/1465/1568 United States v. Betro, et al. Page 6

name, “Tri-State.” A reasonable jury could have taken this evidence to find that Pappas, Zahoor,

and Betro each knowingly devised and executed a scheme to defraud Medicare with intent to

defraud. Anderson, 67 F.4th at 770; 18 U.S.C. § 1347.

Defendants’ arguments to the contrary are unavailing. Pappas argues that “the evidence

was insufficient to prove that [he] knowingly conspired to submit medically unnecessary claims

to Medicare for reimbursement, or that he devised a scheme and intended to submit medically

unnecessary claims.” Pappas Br. at 20. But there was ample evidence for a rational juror to find

him guilty beyond a reasonable doubt.

Along with the evidence discussed above, Pappas himself testified that he knew he could

be criminally prosecuted for healthcare fraud and nonetheless chose to flout Medicare’s rules and

submit fraudulent claims. R. 444, Trial Tr. Vol. 9, pp. 175–76, PageID 5735–36. Pappas also

admitted that the number of urine drug tests he was ordering at Tri-County was “nuts.” Id. at

120, PageID 5680. This Court has upheld convictions when evidence shows that defendants

caused Medicare to be billed for treatments that “were not performed, or, if performed, were not

medically necessary.” United States v. Martinez, 588 F.3d 301, 315 (6th Cir. 2009).

And that is exactly what happened here. For example, one of Pappas’s Medicare patients

visited the clinic to receive injections 13 times in one year. Even knowing the patient

complained that the injections didn’t work and sometimes hurt, Pappas injected him 474 times

over the course of 74 visits in only six and a half years. The government provided sufficient

evidence for a jury to conclude that Pappas knew exactly what he was doing.

Next consider Zahoor. He argues that he “was merely trying to help his patients” and

that the government failed to prove that he “acted with any intention other than good faith.”

Zahoor Br. at 27. But Zahoor admitted at trial that he promised Medicare he would become

familiar with its rules and then violated those same rules every time he billed for more than five

facet injections.

One of his patients complained that the injections hurt more than they helped, Zahoor

nonetheless administered injections at 47 of her 48 visits. And when he composed his patient

Nos. 22-1106/1107/1465/1568 United States v. Betro, et al. Page 7

notes, Zahoor failed to accurately describe the visits, repeatedly and falsely describing her pain

as elbow pain while also misrepresenting the duration of individual visits.

Betro similarly challenges his conviction, but he admitted at trial that he submitted claims

in violation of Medicare’s policies on urine drug testing and facet joint injections. One of his

patients complained that the shots hurt and were not getting better, but Betro kept administering

them. Betro, however, falsely recorded on the patient chart that one “[p]atient felt instant relief

and patient tolerated procedure well.” R. 440, pp. 223–24, PageID 4900–01. When discussing

the possibility of using a radio frequency machine at the clinic as an alternative treatment, Betro

balked at the idea because it would be “more of a one-time thing,” which meant it would

decrease revenue compared to the monthly injections. R. 441, pp. 147–48, PageID 5100–01.

In sum, the government brought sufficient evidence against Pappas, Zahoor, and Betro.

Resolving all reasonable inferences in favor of the government, a reasonable jury could have

found all three of them guilty beyond a reasonable doubt.2

2

At oral argument, Zahoor and Pappas’s counsel claimed that the government needed expert testimony to

prove that Tri-County’s injections were medically unnecessary. This argument did not appear in their briefing, so it

is plausibly forfeit. Henricks v. Pickaway Corr. Inst., 782 F.3d 744, 751 n.3 (6th Cir. 2015) (“Because this

argument was raised on appeal for the first time at oral argument, it has been forfeited on appeal.”). That said,

“while expert testimony as to ‘legitimate medical purpose’ . . . may be helpful to a jury, there are cases in which the

lay testimony is so clear that no expert testimony is required to determine that the defendant’s actions were not for a

legitimate medical purpose.” United States v. Word, 806 F.2d 658, 663 (6th Cir. 1986).

Here, as earlier discussed, Medicare conducted an audit of the Tri-County clinic, suspending it from further

reimbursement after finding that the injections its doctors performed were “all medically unnecessary.” R. 441, pp.

126–27, PageID 5079–80. Undaunted, Zahoor and Pappas rejoined forces with their fellow conspirators under the

newly formed “Tri-State” clinic. R. 440, pp. 98, 108, PageID 4775, 4785. In addition, Rashid, the leader of the

conspiracy, admitted that the defendants’ scheme involved, in part, “medically unnecessary procedures, injections.”

R. 441, p. 22, PageID 4975. Omar also testified that the injections were “medically unnecessary.” R. 448, Trial Tr.

Vol. 13, p. 107, PageID 6329.

Moreover, the Fifth Circuit has held that no expert testimony is required where doctors bill for one thing

but deliver something else that is less expensive. See United States v. Ekanem, 555 F.3d 172, 174–75 (5th Cir.

2009). In that case, the court required no expert testimony to show that a defendant had committed healthcare fraud

when defendant had billed for an expensive motorized wheelchair but only delivered a cheaper scooter. Similarly,

the government presented evidence that Zahoor and Pappas billed for expensive facet injections, despite knowing

that they were not “actually giving facet injections” but were “actually doing trigger point injections.” R. 441, pp.

50–52, PageID 5003–05. All said, even without expert testimony, there was ample evidence to convict them.

Nos. 22-1106/1107/1465/1568 United States v. Betro, et al. Page 8

B.

Betro, Zahoor, and Omar each raise allegations of prosecutorial misconduct. This Court

reviews properly preserved prosecutorial-misconduct claims de novo. Coker, 514 F.3d at 568.

First, we “consider whether the prosecutor’s conduct and remarks were improper.” United States

v. Carter, 236 F.3d 777, 783 (6th Cir. 2001). Then, if the prosecutor committed an impropriety,

we “weigh four factors in determining whether the impropriety was flagrant and thus warrants

reversal.” Id. Here, we measure whether the conduct (1) “tended to mislead the jury or

prejudice the defendant,” (2) was “isolated or extensive,” and (3) was deliberate or accidental,

and, finally, (4) we see if “the evidence against the defendant was strong.” Id.

Among other allegations, these three appellants contend that the prosecution (1) misled

the jury by incorrectly treating the defendants as a collective, (2) used co-defendants’ guilty

pleas as substantive evidence, and (3) alluded to external evidence unavailable to the jury. We

hold that there were no statements warranting reversal, so this claim fails.

First, Omar argues that the government “confuse[d] and prejudice[d] the jury” by treating

“all four defendants as a single actor during questioning” and its closing argument. Omar Br. at

21–22.3 Although it is true that witnesses lumped the four defendants together in testimony even

after the district court sustained objections, the prosecutor often specified particular defendants.

The government’s statements neither confused the jury nor prejudiced the defendants.

For the most part, the prosecution’s collective references to the defendants in closing argument

accurately applied to all four defendants. Omar does identify one comment that inaccurately

grouped him together with the other defendants. During its closing, the government told the jury

that “these defendants and their other coconspirators had a meeting” in January 2017 to discuss

finding ways to continue their injection and billing practices while “stay[ing] under the radar.”

R. 448, Trial Tr. Vol. 13, p. 153, PageID 6375. Omar, however, left Tri-County in 2016 and was

not present at that meeting. Omar concedes that because he did not object to this statement

during trial, we review for plain error. United States v. Benson, 591 F.3d 491, 499 (6th Cir.

2010).

3

Zahoor, in passing, makes a similar argument.

Nos. 22-1106/1107/1465/1568 United States v. Betro, et al. Page 9

The prosecution’s references were otherwise not improper, and the district court’s jury

instructions properly cured any confusion caused by the reference to the 2017 meeting or

imprecision in witness testimony. See Emuegbunam, 268 F.3d at 406. The court instructed, “It

is your duty to separately consider the evidence against each defendant on each charge and to

return a separate verdict for each one of them.” R. 449, Trial Tr. Vol. 14, p. 195, PageID 6629

(emphases added). It further directed the jury to “make [its] decision based only on the

evidence,” which the court clarified did not include arguments made by counsel. Id. at 189–90,

PageID 6623–24.

Omar also claims that the prosecution “appeal[ed] to class prejudice” by calling him “a

man of expensive taste” and describing various lavish purchases made by the defendants. Omar

Br. at 25. The district court, however, found the spending evidence relevant to Omar’s motive

and admitted it at trial. It is not improper for the government to use evidence that the district

court expressly admitted.

Zahoor cites the government’s closing rebuttal to accuse the prosecutor of “attempt[ing]

to use the guilty pleas of the co-defendants as substantive evidence of guilt.” Zahoor Br. at 21.

He also argues that the prosecutor said he was guilty “because he was exercising his

constitutional right to trial,” calling the four defendants “unrepentant fraudsters.” Id. at 22.

But the district court made it clear to the jury that closing arguments are not substantive

evidence. Second, the defendants did not object to the government’s comments at trial, so we

review for plain error. Benson, 591 F.3d at 499. And here, counsel for each defendant arguably

opened the door by first attacking witnesses’ credibility in their own closing arguments. The

government can use a co-conspirator’s guilty plea to rebut challenges to the cooperating

witness’s credibility. Id. Additionally, after the government rehabilitated its witnesses’

credibility, the district court instructed the jury that “[t]he fact that these witnesses have pleaded

guilty to a crime is not evidence that the defendants are guilty, and you cannot consider this

against the defendants in any way.” R. 449, pp. 211–12, PageID 6645–46.

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Nevertheless, whether the court erred here is a close issue. Although the defendants had

first attacked the government witnesses’ credibility in their own closing, the prosecution may

well have taken the co-defendants’ guilty pleas too far by telling the jury “the only question” to

consider was whether the defendants were “doing the same thing” as co-defendants who “pled

guilty to committing crimes” based on “the exact same” conduct. Id. at 147, PageID 6581. But

these unobjected-to comments in isolation do not meet the level of flagrance justifying retrial,

and the district court did not commit plain error by declining to grant a new trial on these

grounds.

As to “unrepentant fraudsters,” defendants opened the door there as well by using the

same phrase to attack one of the government’s witnesses. Before the prosecutor called the

defendants “unrepentant fraudsters,” Omar’s counsel used the term at cross-examination, and

Betro’s counsel used it to describe Rashid at closing argument. R. 442, Trial Tr. Vol. 7, p. 24,

PageID 5205; R. 449, p. 11, PageID 6445.

This Court has permitted prosecutors to make comments “in response ‘to the argument

and strategy of defense counsel.’” Byrd v. Collins, 209 F.3d 486, 535 (6th Cir. 2000) (quoting

Butler v. Rose, 686 F.2d 1163, 1172 (6th Cir. 1982)). Here, the prosecution was responding to

defense attempts to establish that the defendants were more credible than the government’s

cooperating witnesses. Besides, in a trial about fraud, it is not unduly prejudicial to use colorful

pejoratives like “fraudster” in isolation. See United States v. Branch, 591 F.3d 602, 610 (8th Cir.

2009). And to the extent that characterizing defendants as “unrepentant” did draw an improper

contrast, the comment does not warrant reversal given its isolated nature and the district court’s

instruction to the jury that the defendants’ not-guilty pleas entitled them to the presumption of

innocence. See United States v. Lawrence, 735 F.3d 385, 433 (6th Cir. 2013).

Zahoor also argues that it was improper for the government to “convey[] to the jury that

there was evidence known to the government, but not known to the jury, which supported their

argument.” Zahoor Br. at 24. Specifically, he alleges that the government stated there were

other patients it could have called in to testify. True, it is improper bolstering for a prosecutor to

imply that witness “testimony is corroborated by evidence known to the government but not

known to the jury.” United States v. Trujillo, 376 F.3d 593, 608 (6th Cir. 2004) (quoting United

Nos. 22-1106/1107/1465/1568 United States v. Betro, et al. Page 11

States v. Martinez, 253 F.3d 251, 254 (6th Cir. 2001)). But here, the prosecutor was responding

to challenges from the defense and reminding the jury about the government’s burden of proof.

It was Betro’s counsel who had first highlighted the number of witnesses the prosecution

called in to testify. R. 449, p. 37, PageID 6471 (“I would have expected the Government to

bring in a parade of witnesses, a parade of patients. You heard that there were hundreds of

patients in this clinic. They should have paraded them all up here and had them all take the

stand.”). And Zahoor’s counsel similarly asked, “where are the patients,” inviting the jury to

“[i]magine how impactful it would have been . . . if there were ten patients sitting in that witness

box” to testify against Zahoor. Id. at 76, PageID 6510. The government then replied, not by

bolstering its case with evidence outside the record, but by reminding the jury of its own burden.

It doesn’t matter how many witnesses they call. The prosecution need only “prove its case

beyond a reasonable doubt. We can prove that with one witness. We can prove it with 100

witnesses.” Id. at 177, PageID 6611. The defendants did not object to the government’s

comments at trial, so we review for plain error and find none.

Similarly, Betro and Zahoor argue that the government’s reference to “Magical

Marcaine” in its closing argument misled the jury because there was no “evidence to corroborate

or substantiate” its claim that any relief patients received from their treatment at Tri-County was

“a lucky accident or caused by the oxycodone prescriptions.” Betro Br. at 9–10; see Zahoor Br.

at 22–23. Defendants did not object to the government’s comments at trial, so we review for

plain error.

In the face of conflicting testimony that Marcaine lasts no more than eight hours, Betro

and Zahoor claimed that Marcaine used in their procedure has a much longer effect—up to a

month. But witnesses for the prosecution testified that the Marcaine injections they received

from Tri-County offered no relief. The defense’s testimony about Marcaine directly conflicts

with the prosecution. And when the prosecution brought up Marcaine at closing, it only invited

the jury to resolve the conflicting testimony in its favor. See Matthews v. Abramajtys, 319 F.3d

780, 790 (6th Cir. 2003) (describing the resolution of conflicting evidence as “exactly the task to

be performed by a rational jury”). It is not improper for the government to use “descriptive

Nos. 22-1106/1107/1465/1568 United States v. Betro, et al. Page 12

phrases and colorful pejoratives” at closing. Branch, 591 F.3d at 610 (internal quotation marks

omitted).

Zahoor further argues that the government lacked evidence to support its claim that the

defendants were among the top prescribers for opioids despite being “compared with pain

doctors who worked 40 hours per week.” Zahoor Br. at 23. But Rashid had testified that the

doctors at Tri-County deliberately limited their work schedules, so their prescriptions would not

stand out against doctors working five days a week. Therefore, a jury could reasonably infer that

most pain specialists were working 40-hour weeks and, at the very least, more hours than the

doctors at Tri-County. See Byrd, 209 F.3d at 535 (“[P]rosecutors must be given leeway to argue

reasonable inferences from the evidence.” (internal quotation marks omitted)).

Finally, Betro and Zahoor argue that the government “made blatant appeals to the

juror[s’] desire to hurry the process” by suggesting to the jury “the fastest way for you to go

home,” undermining each juror’s duty to rigorously assess the evidence. Betro Br. at 6–7;

Zahoor Br. at 23. The defendants did not object at trial, so we review for plain error.

Reading the comment in context, however, the government was not telling the jury to

neglect its duty to the court. Instead, the prosecution offered a question for the jury to ask itself

in deliberation. R. 449, p. 153, PageID 6587 (“[A]nd the fastest way for you to go home, the

first question you could ask is . . . did [the defendants] know they were doing something

wrong?”) There is no evidence that the jury abandoned the court’s instructions to consider the

evidence and determine whether the government proved its case beyond a reasonable doubt.

And there is no evidence that the government directed the jurors to abandon their duty merely by

giving them a place to start and simplifying the necessary findings at the end of a three-week

trial.

In review, we find that the examples of alleged prosecutorial misconduct largely were not

improper, and where the prosecution did commit passing improprieties, those instances do not

meet the standard of flagrance justifying retrial. They did not prejudice the defendants, they

were relatively isolated in the context of a three-week trial, and the evidence was strong against

Nos. 22-1106/1107/1465/1568 United States v. Betro, et al. Page 13

each defendant. The district court therefore did not abuse its discretion by denying defendants’

motions for new trial based on supposed prosecutorial misconduct.

C.

Omar argues that the district court abused its discretion by admitting evidence of his

spending and testimony that traced his spending “to money received from Tri-County.” Omar

Br. at 35. We review evidentiary rulings for abuse of discretion. United States v. Hazelwood,

979 F.3d 398, 408 (6th Cir. 2020).

Under the Federal Rules, evidence is relevant if “it has any tendency to make a fact [of

consequence] more or less probable than it would be without the evidence.” Fed. R. Evid. 401.

“This threshold is low, and evidence is relevant if it ‘advance[s] the ball’ one inch.’” United

States v. Lang, 717 F. App’x 523, 538 (6th Cir. 2017) (alteration in original) (quoting Dortch v.

Fowler, 588 F.3d 396, 401 (6th Cir. 2009)). A court, however, “may exclude relevant evidence

if its probative value is substantially outweighed by . . . unfair prejudice.” Fed. R. Evid. 403

(emphasis added).

Here, the district court admitted evidence of Omar’s spending to show motive to

participate in the Tri-County conspiracy. Omar himself admitted that his “taste in automobiles

might be seen as some modest evidence of ‘motive.’” R. 398, Omar Evid. Obj., p. 13, PageID

3516. Even though he bought his cars before joining Tri-County, Omar was still making

payments, and revenues from his pulmonology practice had taken a dip.

When reviewing a district court’s application of Rule 403, we review the court’s

balancing for abuse of discretion, “look[ing] at the evidence in the light most favorable to its

proponent.” United States v. Poulsen, 655 F.3d 492, 509 (6th Cir. 2011) (quoting United States

v. Bonds, 12 F.3d 540, 567 (6th Cir. 1993)). And we ask whether “the evidence would ‘tend to

suggest a decision on an improper basis.’” Id. (quoting United States v. Newsom, 452 F.3d 593,

603 (6th Cir. 2006)). The risk of unfair prejudice is “defined as the undue tendency to suggest a

decision based on improper considerations.” Hazelwood, 979 F.3d at 412 (internal quotation

marks omitted). Considering its application to proving motive, it is unlikely that the evidence of

Omar’s spending would have led to a verdict based on improper considerations like seeing

Nos. 22-1106/1107/1465/1568 United States v. Betro, et al. Page 14

“Omar as just another one of the bunch of rich, greedy doctors.” Omar Br. at 38. Thus, viewing

the evidence in light most favorable to the government, Omar’s spending is relevant to his

motive, and its relevance is not outweighed by a danger of unfair prejudice.

Finally, Omar contends that the evidence is inadmissible as evidence of specific conduct

under Rule 404(b). Id. at 37. But Rule 404(b) only protects against evidence used “to prove a

person’s character in order to show that on a particular occasion the person acted in accordance

with the character.” Fed. R. Evid. 404(b)(1). The government used Omar’s to prove motive, not

propensity, and Rule 404(b)(2) expressly lists “proving motive” as a permissible use of conduct

evidence.

The district court did not abuse its discretion by admitting evidence of Omar’s spending.

D.

Betro argues that the district court erred by admitting the testimony of Ali Taqi, Anand

Thakur, and Manish Bolina, three doctors who worked at Tri-County, without qualifying them as

experts under Fed. R. Evid. 702 or testing their reasoning against the Daubert factors. As

mentioned, we review evidentiary rulings for abuse of discretion. Hazelwood, 979 F.3d at 408.

We reverse them “only where the district court’s erroneous admission of evidence affects a

substantial right of the party.” United States v. White, 492 F.3d 380, 398 (6th Cir. 2007) (citing

Fed. R. Evid. 103(a); United States v. Whittington, 455 F.3d 736, 738 (6th Cir. 2006)).

When witnesses offer lay testimony, they can give their opinions, so long as they are

(1) “rationally based on the witness’s perception,” (2) “helpful to clearly understanding the

witness’s testimony or to determining a fact in issue,” and (3) “not based on scientific, technical,

or other specialized knowledge.” Fed. R. Evid. 701. Treating physicians can pose some

challenges on the line between lay and expert opinion testimony because they are percipient

witnesses who also possess specialized knowledge.

In United States v. Wells, 211 F.3d 988, 998 (6th Cir. 2000), we concluded that treating

physicians could testify “to their first-hand observations and treatment” of a patient without

being qualified as experts. Two physicians in Wells testified about their treatment of a patient,

Nos. 22-1106/1107/1465/1568 United States v. Betro, et al. Page 15

which included surgery and prescriptions. Id. at 997–98. In Fielden v. CSX Transportation, Inc.,

482 F.3d 866 (6th Cir. 2007), we determined that a treating physician could opine on the cause of

the plaintiff’s carpal tunnel syndrome without submitting an expert report. We noted, in part,

that the physician’s opinion was based on what he learned through actual treatment of the

plaintiff and was based on his “ordinary medical training.” Id. at 872.

We’ve also held that some opinion testimony of treating physicians needs to pass muster

as expert testimony under Fed. R. Evid. 702. See Gass v. Marriott Hotel Servs., Inc., 558 F.3d

419, 426 (6th Cir. 2009). In Fielden, we suggested that a physician who “testifies to issues

beyond those covered in ordinary medical training” may be acting more like a retained expert.

482 F.3d at 872.

Other courts have come to similar conclusions. The Tenth Circuit has said that “[a]

treating physician is not considered an expert witness if he or she testifies about observations

based on personal knowledge, including the treatment of the party.” Davoll v. Webb, 194 F.3d

1116, 1138 (10th Cir. 1999). And the Eleventh Circuit held that “a physician may offer lay

opinion testimony, consistent with Rule 701, when the opinion is ‘based on his experience as a

physician and [is] clearly helpful to an understanding of his decision making process in the

situation.’” Williams v. Mast Biosurgery USA, Inc., 644 F.3d 1312, 1317–18 (11th Cir. 2011)

(alteration in original) (quoting Weese v. Schukman, 98 F.3d 542, 550 (10th Cir. 1996)).

Although the line may be blurred at some point, what the Eleventh Circuit held is that a treating

physician may not hypothesize, because that “crosses the line from lay to expert testimony,

and . . . must comply with the requirements of Rule 702 and the strictures of Daubert.” Id. To

be fair, there are cases that will be close at the margins, but this case isn’t one of those.4

4

The concurrence suggests that we are overreading Fielden with regard to what kind of treating-physician

testimony is permitted as “lay” testimony. It is true, as the concurrence points out, that Fielden was about whether a

treating physician needed to file an expert report under Fed. R. Civ. P. 26(a)(2). The concurrence notes that under

the rule in effect at the time, “retained” experts had to file reports but that other witnesses, like treating physicians,

did not, even though they still offered expert testimony because they weren’t “retained or specially employed to

provide expert testimony.” See Concurrence at 29 (citing Fed. R. Civ. P. 26(a)(2)(A)–(B) (2006)). So the

suggestion is that Fielden’s conclusion that the treating physician there didn’t have to file an expert report didn’t

implicate the question of whether that physician was offering expert testimony—only how it had to be disclosed.

Nos. 22-1106/1107/1465/1568 United States v. Betro, et al. Page 16

On the contrary, here, Taqi, Thakur, and Bolina were treating physicians who offered

opinions that are closely related to the course of treatment. Taqi, Thakur, and Bolina properly

limited their lay testimony to their own first-hand observations and treatment—not broader

medical judgments.

For example, the testimony Betro cites from Taqi contrasted the quantities and strength of

the medications prescribed at Tri-County with the significantly different ones at his prior ER

practice. Those comparisons were proper lay testimony because they could be made using

everyday reasoning without requiring specialized training or knowledge. See White, 492 F.3d at

401. And when Taqi testified that he left Tri-County because he “didn’t think the injections

were doing anything for the patients,” R. 437, p. 74, PageID 4232, it was founded in his personal

experience treating these patients. See Wells, 211 F.3d at 998.5

Similarly, when Thakur testified that he thought the amount of opioids prescribed at Tri-

County was “excessive” and “more . . . than I would prescribe,” he made clear that his testimony

was limited to “[t]he one or two patients that I saw” and how things worked “in my practice,”

assiduously refraining from offering medical judgments about which practice is objectively

The concurrence claims that the Fielden court “appeared to take it for granted” that the treating physician

was an expert witness. Id. at 28–29 (citing Fielden, 482 F.3d at 869, 870 n.3, 872). But to the contrary, the Fielden

court supported its conclusions not by calling treating physicians expert witnesses who were merely not retained to

offer expert testimony but by alleviating concerns that parties might try to have “a treating physician testify on an

issue instead of having an expert do so.” Fielden, 482 F.3d at 870 (emphasis added). And where Fielden notes that

the physicians were not retained experts, the opinion does not state or imply that they were nonetheless expert

witnesses. Cf. Concurrence at 28–29 (citing id. at 869, 872). Lay witnesses are not retained to provide expert

testimony either. We read Fielden’s conclusions about the nature of the treating physician’s testimony as going to

the question of whether it was “expert” testimony or not.

And that reading is bolstered by the out-of-circuit cases noted above. The concurrence says that those

cases relied on an outdated version of Rule 701, which was amended in relevant part in 2000. Concurrence at 28

n.1. To be fair, the amendment post-dates Davoll, but it was explicitly discussed in Williams, 644 F.3d at 1317 &

n.2, before the court distinguished opinions “based on a hypothesis” from those founded in “the experience of

treating the patient,” id. at 1317–18. As the concurrence notes, Williams cites Davoll and Weese v. Schukman, 98

F.3d 542 (10th Cir. 1996), but Williams also cites United States v. Henderson, 409 F.3d 1293 (11th Cir. 2005), see

644 F.3d at 1317–18 & n.4, which also explicitly discussed the 2000 amendment before explaining that “the ability

to answer hypothetical questions is the essential difference between expert and lay witnesses,” Henderson, 409 F.3d

at 1300 (emphasis added).

As the concurrence points out, ultimate causation questions pose the greatest difficulty in this area. See

Gass, 558 F.3d at 426; Barrett v. Rhodia, Inc., 606 F.3d 975, 982 (8th Cir. 2010). But this case does not present that

issue.

5

Betro cites this testimony in his brief but did not object to it at trial, meaning it is subject to plain-error

review.

Nos. 22-1106/1107/1465/1568 United States v. Betro, et al. Page 17

correct. R. 438, pp. 161–63, PageID 4456–58. And when the district court allowed Bolina to

describe how to “appropriately” perform facet joint injections, he merely testified to his first-

hand “understanding of the shot that he was providing at Tri-County” and how he did not believe

that the shots were “actually facet joint injections.” Id. at 16, PageID 4311. This too fell within

“a permissive core on issues pertaining to treatment.” Fielden, 482 F.3d 866, 871 (6th Cir.

2007).6

Sometimes the physicians approached the line between lay and expert testimony, but in

those moments, the district court quickly sustained objections from the defense, and the

prosecution either rephrased its questions or posed new ones. The district court did not abuse its

discretion with the line it set between lay and expert testimony, and it did not erroneously admit

evidence that substantially affected Betro’s rights. White, 492 F.3d at 398.

E.

Pappas argues that the district court violated his “Fifth and Sixth Amendment right to

present a complete defense” by excluding patients he wanted to call as witnesses. Pappas Br. at

33–34. We review evidentiary rulings for abuse of discretion, but we review alleged

constitutional violations de novo. United States v. Blackwell, 459 F.3d 739, 752 (6th Cir. 2006).

“The right to offer the testimony of witnesses, and to compel their attendance, if

necessary, is in plain terms the right to present a defense.” Washington v. Texas, 388 U.S. 14, 19

(1967). But that right to offer testimony does not extend to irrelevant testimony. Fed. R. Evid.

402 (“Irrelevant evidence is not admissible.”); United States v. Lucas, 357 F.3d 599, 606 (6th

Cir. 2004) (“[A] complete defense does not imply a right to offer evidence that is otherwise

inadmissible under the standard rules of evidence.”). At its core, “whether the exclusion of

witnesses’ testimony violated defendant’s right to present a defense depends on whether the

omitted evidence evaluated in the context of the entire record creates a reasonable doubt that did

6

Separately, Betro makes a broad challenge to “any testimony pertaining to the half-life of Marcaine and

how Marcaine is medically used,” arguing that it “must be considered scientific and specialized knowledge.” Betro

Reply Br. at 8. But Betro failed to bring his challenge to Marcaine-related testimony in his opening brief, so the

issue is forfeited. See United States v. Kalymon, 541 F.3d 624, 632 (6th Cir. 2008).

Nos. 22-1106/1107/1465/1568 United States v. Betro, et al. Page 18

not otherwise exist.” Blackwell, 459 F.3d at 753 (quoting Washington v. Schriver, 255 F.3d 45,

57 (2d Cir. 2001)).

Pappas sought to introduce the testimony of one of his patients, Angela Vann, to rebut

what he considered the government’s “narrative that Dr. Pappas and the doctors at Tri-County

treated patients uniformly, irrespective of their insurance.” Pappas Br. at 36. Although Vann

might have shown that Pappas did not treat every patient uniformly, the district court rightly

excluded her testimony. The relevant question was not whether Pappas treated every patient

uniformly. Instead, the case concerned “whether Pappas treated all Medicare patients the same,”

and Vann “was not a Medicare beneficiary,” so her testimony was not probative. R. 694, Order

Denying Mots. for New Trial, p. 42, PageID 9845 (emphasis added) (citing United States v.

Dimora, 750 F.3d 619, 630 (6th Cir. 2014) (“[P]rior ‘good acts’ generally may not be used to

show a predisposition not to commit crimes.”)).

Pappas argues that his treatment of non-Medicare beneficiaries is “inextricably

intertwined” with the charges against him. Pappas Br. at 40. But even if Vann’s testimony is

“inextricably intertwined” with Pappas’s charges, that only gets around Rule 404(b). See United

States v. Churn, 800 F.3d 768, 779 (6th Cir. 2015) (“Even if evidence is [inextricably

intertwined], we ‘must also find that the district court did not abuse its discretion in concluding

that the probative value of the evidence was not substantially outweighed by the danger of unfair

prejudice pursuant to Federal Rule of Evidence 403.’” (quoting United States v. Joseph, 270 F.

App’x. 399, 406 (6th Cir. 2008) (per curiam)).

Even if the district court erred by excluding Vann’s testimony, it did not violate Pappas’s

constitutional right to present a defense. The bulk of her testimony would have shown that

Pappas did not treat every patient the same. Pappas Br. at 41. And the district court already

allowed Pappas to introduce a witness for just that rebuttal. At trial, he brought his Medicare

patient, Shirley Norris, who testified that Pappas provided her with effective and individualized

treatment, inquiring into her medical history, conducting a physical examination, and relieving

her pain.

Nos. 22-1106/1107/1465/1568 United States v. Betro, et al. Page 19

If Vann’s testimony had been admitted, it would have covered largely the same ground as

Norris’s. It would not have undermined the government’s case against Pappas. Therefore, even

if the district court erred by excluding Vann’s testimony, it did not violate Pappas’s

constitutional right to present a defense. See Blackwell, 459 F.3d at 753.

F.

Pappas and Betro argue that the district court erred by instructing the jury on deliberate

ignorance, claiming that the instruction was improper “given the lack of evidence” that they

“acted with deliberate ignorance.” Pappas Br. at 46; see Betro Br. at 24.

“We review challenges to a district court’s jury instruction for abuse of discretion.”

United States v. Geisen, 612 F.3d 471, 485 (6th Cir. 2010). This Court may only reverse a

conviction on these grounds “if the instructions, viewed as a whole, were confusing, misleading,

or prejudicial.” Id. (quoting United States v. Harrod, 168 F.3d 887, 892 (6th Cir. 1999)).

A deliberate-ignorance instruction is appropriate when defendants claim to lack guilty

knowledge, but “the facts and evidence support an inference of deliberate ignorance.” United

States v. Mitchell, 681 F.3d 867, 876 (6th Cir. 2012). Here, the government provided evidence

to rebut Pappas and Betro’s claims that they lacked guilty knowledge. For example, Rashid

testified at trial that, before hiring Pappas and Betro, he had informed them that the clinic

“attracted patients” with opioid prescriptions and that they “would get a percentage of what they

billed” as part of a “predetermined protocol.” R. 441, pp. 28–29, PageID 4981–82. Moreover,

Pappas himself testified that he knew he could be criminally prosecuted for healthcare fraud but

still flouted Medicare’s rules and submitted fraudulent claims. And Betro testified that although

Rashid told him Medicare did not allow facet injections to be billed more than five times a year,

and those Medicare regulations were taped to a wall in the clinic, he continued to bill in excess

of the guidelines. It was reasonable and proper for the district court to leave the question of

deliberate ignorance to the jury.

Nos. 22-1106/1107/1465/1568 United States v. Betro, et al. Page 20

G.

Finally, Pappas, Omar, and Zahoor challenge the reasonableness of their sentences.

“[W]e review a district court’s sentencing determination, ‘under a deferential abuse-of-discretion

standard,’ for reasonableness.” United States v. Bolds, 511 F.3d 568, 578 (6th Cir. 2007)

(quoting Gall v. United States, 552 U.S. 38, 41 (2007)). In so doing, we “first ensure that the

district court committed no significant procedural error” and “then consider the substantive

reasonableness of the sentence imposed.” Gall, 552 U.S. at 51. We review a “factual amount of

loss finding for clear error and consider the methodology behind it de novo.” United States v.

Poulsen, 655 F.3d 492, 512 (6th Cir. 2011) (internal quotation marks omitted). And when “a

party has failed to object to a procedural defect, we review claims of procedural

unreasonableness for plain error.” United States v. Wallace 597 F.3d 794, 802 (6th Cir. 2010).

1.

Pappas, Omar, and Zahoor challenge their sentences as procedurally unreasonable,

disputing the district court’s method of calculating the amount of financial loss for which it held

each conspirator responsible.

Under the Federal Sentencing Guidelines, we calculate loss as “the greater of actual or

intended loss.” United States v. Wendlandt, 714 F.3d 388, 393 (6th Cir. 2013) (citing U.S.S.G.

§ 2B1.1 cmt. n.3(A)). “‘Intended loss’ is ‘the pecuniary harm that was intended to result from

the offense,’ including ‘pecuniary harm that would have been impossible or unlikely to occur.’”

Id. (quoting U.S.S.G. § 2B1.1 cmt. n.3(A)(ii)). In cases like this, “the aggregate dollar amount of

fraudulent bills submitted to [a] Government health care program shall constitute prima facie

evidence of the amount of the intended loss.” United States v. Patel, 694 F. App’x 991, 996 (6th

Cir. 2017) (quoting U.S.S.G. § 2B1.1 cmt. n.3(F)(viii)). And when calculating, “the district

court need only make a reasonable estimate of the loss.” Wendlandt, 714 F.3d at 393 (internal

quotation marks omitted).

The district court determined at sentencing that the defendants’ “intent was to get as

much [of] what [they] billed as possible.” R. 584, Rashid Sent. Hr’g, p. 17, PageID 7842; R.

736, Pappas Sent. Hr’g, p. 45, PageID 10093 (applying the quote from Rashid’s sentencing to the

Nos. 22-1106/1107/1465/1568 United States v. Betro, et al. Page 21

other defendants). And when fraud is “pervasive,” the entire amount billed counts toward the

intended loss, and the burden then shifts to the defense “to prove the specific amount by which

that amount should be reduced.” United States v. Mehmood, No. 19-1243, 2021 WL 2979591, at

*6 (6th Cir. July 15, 2021) (internal quotation marks omitted). Accordingly, the district court

calculated the conspiracy’s intended loss as $108,900,000—the full amount billed by the co-

conspirators—and applied that figure to Betro, Pappas, and Zahoor. Omar was held responsible

for $77 million—the amount billed by the defendants during the period he participated in the

conspiracy.

Pappas argues that the district court miscalculated the loss amount in two ways. First, he

argues that because the court made no explicit finding of pervasive fraud, the burden of proving

the loss amount remained with the government. Second, he argues that he nonetheless did prove

the amount to which loss should have been reduced—the actual loss incurred after June 2016, or

$3,782,323.48. Because he did not raise this first argument at sentencing, we review for plain

error. United States v. Sears, 32 F.4th 569, 573 (6th Cir. 2022).

Although the district court did not explicitly find that Tri-County’s billings resulted from

pervasive fraud, its calculation of the loss amount was not plainly erroneous. As the government

reiterated during the sentencing hearing, the evidence at trial established that the clinic employed

a predetermined “shots-for-pills protocol” designed to maximize profits above all else. R. 736,

p. 40, PageID 10088. This evidence was sufficient to establish by a preponderance of the

evidence that the fraud was pervasive—that is, “separating legitimate benefits from fraudulent

ones [was] not reasonably practicable.” United States v. Lovett, 764 F. App’x 450, 460 (6th Cir.

2019) (quoting United States v. Hebron, 684 F.3d 554, 563 (5th Cir. 2012)). As for Pappas’s

second argument, the district court correctly rejected his argument that the loss amount should be

limited to actual loss, see United States v. You, 74 F.4th 378, 398 (6th Cir. 2023), and—as

explained in Section II.A—his contention that he was not aware from the outset that Tri-

County’s practices were fraudulent.

Next, Omar argues that the district court erred in rejecting his argument that his loss

amount should have been reduced by 31%, which he claims represents billing for services other

than facet joint injections such as “office visits and other potentially non-fraudulent medical

Nos. 22-1106/1107/1465/1568 United States v. Betro, et al. Page 22

treatment.” Omar Br. at 39; see U.S.S.G. § 2B1.1, cmt. n.3(c)(i) (reducing loss by “the fair

market value of . . . services rendered”). The district court concluded that those services could

not be separated out from the fraudulent injections because they likely would not have been

billed “but for the giving of the 69 percent that related to the injections.” R. 749, Omar Sent.

Hr’g Tr., p. 7, PageID 10276. As Omar provides no support for his contention that those

services were legitimate and concedes they were merely “potentially” non-fraudulent, we find no

error in the district court’s determination.

Finally, Zahoor argues that he should not be held responsible for the amounts billed by

other doctors because those amounts were not reasonably foreseeable to him. “Relevant

conduct” for the purposes of calculating the loss amount includes the conduct of others if it “is

‘within the scope’ of, ‘in furtherance’ of, and ‘reasonably foreseeable’ in connection with jointly

undertaken criminal activity.” United States v. Donadeo, 910 F.3d 886, 894 (6th Cir. 2018)

(quoting U.S.S.G. § 1B1.3(a)(1)(B)). Here, the government presented evidence that physicians

at Tri-County applied a set “shots-for-pills” protocol and that Zahoor was aware of that practice,

so the amounts billed by the other physicians were reasonably foreseeable. And although Zahoor

cites his limited working hours to contend that he should not be held responsible for what his co-

conspirators billed, any limits on his work hours came in furtherance of the conspiracy, and the

district court rightly refrained from counting that in Zahoor’s favor. Additionally, Zahoor’s

claim that his expertise in Medicare billing should reduce his loss calculation fails because

(1) factual impossibility does not negate an intended loss calculation, Wendlandt, 714 F.3d at

393, and (2) Zahoor’s claimed knowledge does not prove any specific reduction, Mehmood, 2021

WL 2979591, at *6. In other parts of his own brief, he conceded that “[h]e did not know

Medicare procedures and rules.” Zahoor Br. at 6 (emphasis added). The district court

committed no significant error in its loss calculation.

2.

Zahoor further challenged a two-level enhancement he received under U.S.S.G.

§ 2B1.1(b)(10)(C) for an offense involving sophisticated means, arguing that because his work

was part-time and restricted to medicine, his role in the conspiracy was limited, and therefore the

enhancement did not apply. Id. at 14–15. This Court defines “sophisticated means” as

Nos. 22-1106/1107/1465/1568 United States v. Betro, et al. Page 23

“especially complex or especially intricate offense conduct pertaining to the execution or

concealment of an offense.” United States v. Simmerman, 850 F.3d 829, 833 (6th Cir. 2017)

(quoting U.S.S.G. § 2B1.1 cmt. n.9). And a review of “the totality of a defendant’s conduct—the

entire scheme”—is sufficient for a determination of sophisticated means. United States v.

Masters, 216 F. App’x 524, 526 (6th Cir. 2007).

In Simmerman, this Court affirmed a sophisticated-means enhancement when the

defendant “essentially took money and put it in her purse,” then concealed it by “manipulating

the computer system and creating a dormant account to hide the stolen money.” 850 F.3d at 833.

And in Masters, this Court affirmed the same enhancement when the defendant used “publicly

available reference materials” to “file[] false credit card applications” without “employ[ing]

‘fictitious entities’ or ‘corporate shells.’” 216 F. App’x at 526.

Zahoor participated in a sophisticated fraud scheme in which the conspirators agreed to

deliberately limit their shifts in order to conceal the volume of their opiate prescriptions

compared to doctors working full-time and thereby stay under the DEA’s radar. They also used

template patient charts designed to pass a Medicare audit. Additionally, when Medicare

eventually suspended the Tri-County clinic, Zahoor resumed the operation under a new name,

“Tri-State.” Viewed holistically, Zahoor’s involvement with Tri-County justified his sentence

enhancement for sophisticated means, and the district court did not abuse its discretion by

properly applying it.

3.

Finally, Zahoor challenges his sentence as substantively unreasonable, arguing that it was

“higher than it needed to be to punish [him] for [his] crimes,” pointing to his cooperating co-

defendants’ sentences and contending that he received “a trial tax.” Zahoor Br. at 17. The

district court calculated his Guidelines range to be 262 to 327 months, but after considering

18 U.S.C. § 3553’s sentencing factors, the judge sentenced him to only 96 months’ incarceration.

When sentences are within the Guidelines, they are presumed to be reasonable. United

States v. Parrish, 915 F.3d 1043, 1049 (6th Cir. 2019). And the burden of defendants

challenging sentences that fall below the Guidelines range “is even more demanding.”

Nos. 22-1106/1107/1465/1568 United States v. Betro, et al. Page 24

United States v. Curry, 536 F.3d 571, 573 (6th Cir. 2008). While a district judge might

“determine a defendant’s sentence in light of a co-defendant’s sentence,” that is a matter of

discretion because “the district court is not required to consider that type of disparity under

§ 3553(a)(6).” United States v. Simmons, 501 F.3d 620, 624 (6th Cir. 2007). Discretionary

factors like this “are not even appealable . . . so long as the judge appreciated h[er] discretion to

downwardly depart.” Id. And here, the district court already accounted for these disparities at

sentencing.

Zahoor did not meet his enhanced burden, and his below-Guidelines sentence was

substantively reasonable. The district court did not abuse its discretion by sentencing him 166

fewer months than the bottom of his Guidelines range.

III.

For the reasons set forth above, we AFFIRM the district court’s judgments with respect

to all four defendants.

Nos. 22-1106/1107/1465/1568 United States v. Betro, et al. Page 25

_________________

CONCURRENCE

_________________

HELENE N. WHITE, Circuit Judge, concurring. I join the majority opinion except as to

Section II.D. Because I conclude that some of the testimony of Drs. Taqi, Thakur, and Bolina

crossed the line into expert testimony, I would instead affirm on this issue based on harmless

error.

I.

As the majority points out, treating-physician testimony implicates the murky lines

between fact testimony by a witness with technical knowledge, lay opinion testimony, and expert

opinion testimony. A witness offers opinion testimony when he or she describes “an inference,

belief, or conclusion,” rather than merely recounting a factual observation. 1 McCormick on

Evidence § 11 (8th ed. 2022); see 31A Am. Jur. 2d Expert and Opinion Evidence § 4 (2024)

(“Opinion testimony draws from the given facts to reach a conclusion that cannot be tested

directly and concerns what a witness thinks, believes, or infers in regard to the facts in dispute, as

distinguished from the witness’s personal knowledge of the facts themselves.”). Opinion

testimony that “results from a process of reasoning familiar in everyday life” is lay opinion,

admissible under Federal Rule of Evidence 701; opinion testimony derived from “a process of

reasoning which can be mastered only by specialists in the field” is expert opinion, subject to the

admissibility requirements of Federal Rule of Evidence 702. United States v. White, 492 F.3d

380, 401 (6th Cir. 2007) (quoting State v. Brown, 836 S.W.2d 530, 549 (Tenn. 1992)).

Often, a treating physician’s opinion testimony necessarily relies on specialized medical

knowledge. Therefore, contrary to the majority’s suggestion, “[t]he opinion testimony of a

doctor (whether an expert or a treating physician) generally must pass muster under Rule 702.”

Madej v. Maiden, 951 F.3d 364, 369 (6th Cir. 2020); see Gass v. Marriott Hotel Servs., Inc.,

558 F.3d 419, 426 (6th Cir. 2009) (“Generally, a treating physician may provide expert

testimony regarding a patient’s illness, the appropriate diagnosis for that illness, and the cause of

the illness. However, a treating physician’s testimony remains subject to the requirements in

Nos. 22-1106/1107/1465/1568 United States v. Betro, et al. Page 26

Daubert v. Merrell Dow Pharmaceuticals[.]” (internal citations omitted)); see also Higgins v.

Koch Dev. Corp., 794 F.3d 697, 704 (7th Cir. 2015) (“Treating physicians are no different than

any other expert for purposes of Rule 702; before proffering expert testimony, they must

withstand Daubert scrutiny like everyone else.”); Barrett v. Rhodia, Inc., 606 F.3d 975, 982 (8th

Cir. 2010) (A treating physician’s “opinion on causation is subject to the same standards of

scientific reliability that govern the expert opinions of physicians hired solely for the purpose of

litigation.” (quoting Turner v. Iowa Fire Equip. Co., 229 F.3d 1202, 1207 (8th Cir. 2000)). A

treating physician’s opinion, although based on firsthand observations, might not meet Rule 702

and Daubert’s requirements, and the “trial court’s gatekeeping function requires more than

simply ‘taking the expert’s word for it.’” Fed. R. Evid. 702 advisory committee’s note to 2000

amendments; see, e.g., Gass, 558 F.3d at 428 (finding treating physicians competent to testify

about diagnosis but not causation under Rule 702).

Given that framework, Betro is correct that some of Taqi, Thakur, and Bolina’s testimony

was expert opinion testimony, rather than fact testimony or lay opinion. First, Taqi testified that

he left the Tri-County clinic because he “didn’t think the injections were doing anything for the

patients.” R. 437, PID 4232. This was because, in Taqi’s view, the Lidocaine used in the Tri-

County injections is “supposed to be used as a diagnostic procedure, not as a therapeutic

procedure, so to continue to inject these medications every month didn’t make sense to [him].”

Id. Taqi’s testimony was that he believed or concluded that the injections were ineffective—i.e.,

opinion testimony. And it was opinion testimony based on his specialized knowledge as a

physician—i.e., expert opinion.

Second, after Thakur was asked if he made any observations about the amount of opioids

his Tri-County patients were taking, he testified he “thought [the opioid levels] were excessive.”

R. 438, PID 4456. Thakur later clarified that he meant that those patients, “in [his] opinion,”

were receiving “more opioids than [he] would prescribe.” Id., PID 4457. This testimony was a

medical judgment, not a neutral observation; by characterizing the opioid prescriptions as

“excessive,” Thakur was weighing in on whether Tri-County’s practices were medically

appropriate. There is no indication that this opinion testimony was based on anything other than

Thakur’s knowledge, training, and experience as a “pain physician.” Id., PID 4454.

Nos. 22-1106/1107/1465/1568 United States v. Betro, et al. Page 27

Finally, Bolina testified that the injections he performed at Tri-County were not actually

facet-joint injections, but rather “[i]ntramusclar joint injections.” Id., PID 4312. To explain this

conclusion, he provided a detailed technical explanation of how a facet-joint injection is

performed “when . . . done appropriately,” based on his “experience and knowledge and further

learning [of] the procedure.” Id., PID 4311. This type of testimony—describing “an expert

methodology (a technique or theory)” and “deriv[ing] an opinion by applying the methodology

to a case-specific fact or facts”—is the prototypical “model of expert trial testimony” used “[i]n

the overwhelming majority of cases.” 1 McCormick on Evidence § 12 (8th ed. 2022). Even

Bolina’s explanation of proper injection procedure alone, separate from any further conclusions

drawn from the facts of the case, was expert testimony subject to Rule 702. Id. (Expert

testimony includes “a lecture or exposition about an expert methodology (a technique or theory)

without attempting to apply the technique or theory to the facts.”); see Fed. R. Evid. 702 (“A

witness who is qualified as an expert . . . may testify in the form of an opinion or otherwise.”);

Fed. R. Evid. 702 advisory committee’s note to 1972 proposed rules (“The rule . . . recognizes

that an expert on the stand may give a dissertation or exposition of scientific or other principles

relevant to the case, leaving the trier of fact to apply them to the facts.”).

The cases the majority relies on do not change this analysis. United States v. Wells, 211

F.3d 988 (6th Cir. 2000), was decided shortly before Federal Rule of Evidence 701 was amended

in December 2000. White, 492 F.3d at 401. That amendment added subsection (c) to the Rule,

which “clarified that lay opinions or inferences cannot be based on ‘scientific, technical, or other

specialized knowledge within the scope of Rule 702.’” United States v. Ganier, 468 F.3d 920,

927 (6th Cir. 2006) (quoting Fed. R. Evid. 701(c)). In other words, the pre-amendment version

of the Rule required only that lay witness testimony be rationally based on the witness’s

perception and helpful to the factfinder—a much lower bar. See Jacklyn v. Schering-Plough

Healthcare Prods. Sales Corp., 176 F.3d 921, 928 (6th Cir. 1999). And the purpose of the

amendment was to prevent the exact risk posed by Taqi, Thakur, and Bolina’s testimony in this

case—that a party might “surreptitiously circumvent[] ‘the reliability requirements set forth in

Rule 702 . . . through the simple expedient of proffering an expert in lay witness clothing.’”

Nos. 22-1106/1107/1465/1568 United States v. Betro, et al. Page 28

White, 492 F.3d at 400–01 (quoting Fed. R. Evid. 701 advisory committee’s note to 2000

amendments). Wells does not account for this later requirement.1

The second case, Fielden v. CSX Transportation, Inc., 482 F.3d 866 (6th Cir. 2007),

stands for a proposition distinct from and narrower than the one the majority suggests. Fielden

did not hold that treating physicians do not offer expert opinion as long as they confine their

testimony to the scope of their patients’ treatment. Instead, Fielden concerned whether Federal

Rule of Civil Procedure 26(a)(2) requires a treating physician to file an expert report. 482 F.3d

at 869–72.

The version of Rule 26(a)(2) in effect when Fielden was decided required two categories

of witness disclosures. Parties were required to “disclose . . . the identity of any person who may

be used at trial to present evidence under Rules 702, 703, or 705 of the Federal Rules of

Evidence”—that is, expert witnesses. Fed. R. Civ. P. 26(a)(2)(A) (2006). “[W]ith respect to a

witness who is retained or specially employed to provide expert testimony in the case or whose

duties . . . regularly involve giving expert testimony”—a subset of the witnesses subject to

(a)(2)(A)—parties were further required to submit an expert report. Fed. R. Civ. P. 26(a)(2)(B)

(2006).2 The Fielden court concluded that treating physicians testifying to opinions formed

while treating their patients do not fall within the latter category. 482 F.3d at 869–70. However,

its analysis did not focus on the expert status of the challenged treating-physician witnesses, but

instead on whether—as relevant to Rule 26(a)(2)(B)—they were retained witnesses. See id. at

869 (“Rule 26(a)(2)(B) by its terms provides that a party needs to file an expert report from a

1

The out-of-circuit cases the majority cites similarly rely on the pre-amendment version of Rule 701.

Although decided after and acknowledging the amendments, the Eleventh Circuit case Williams v. Mast Biosurgery

USA, Inc., cites two pre-amendment cases, Davoll v. Webb, 194 F.3d 1116 (10th Cir. 1999) and Weese v. Schukman,

98 F.3d 542 (10th Cir. 1996), for the proposition that a treating physician’s testimony “crosses the line from lay to

expert testimony” only when it “is based on a hypothesis, not the experience of treating the patient.” 644 F.3d 1312,

1317–18 (11th Cir. 2011). Davoll and Weese both recite, and base their analysis on, the prior version of Rule 701,

requiring only that lay witness testimony be “(a) rationally based on the perception of the witness and (b) helpful to

a clear understanding . . . of a fact in issue.” Davoll, 194 F.3d at 1138 (quoting Weese, 98 F.3d at 550).

The Eleventh Circuit in United States v. Henderson likewise did not reconcile its reliance on Davoll and Weese with

the 2000 amendments to Rule 701. 409 F.3d 1293, 1300 (11th Cir. 2005); see Williams, 644 F.3d at 1317 (citing

Henderson for its “approval” of Davoll and Weese). And, under our post-amendment precedent, the ability to

hypothesize is no longer the only essential difference between lay and expert opinion. See White, 492 F.3d at 400–

01.

2

The current version of Rule 26 also imposes these requirements. Fed. R. Civ. P. 26(a)(2)(A)–(B) (2023).

Nos. 22-1106/1107/1465/1568 United States v. Betro, et al. Page 29

treating physician only if that physician was ‘retained or specially employed to provide expert

testimony.’ In this case, Fielden did not retain Dr. Fischer for the purposes of providing expert

testimony.”); id. at 872 (“[B]ecause there are no grounds to hold that Dr. Fischer functioned as a

retained expert in this case, the district court should not have excluded Dr. Fischer’s testimony

on causation.” (emphasis added)). To the extent the witnesses’ expert status was considered, the

court appeared to take it for granted. See id. at 870 n.3 (“Fielden disclosed the name of the

treating physicians to CSXT, thus complying with Rule 26(a)(2)(A).”).

Fielden, therefore, stops far short of creating a treating-physician carve-out to Federal

Rule of Evidence 701(c)’s requirement that lay opinion testimony cannot be “based on scientific,

technical, or other specialized knowledge.” See White, 492 F.3d at 401 (“[L]ay testimony is

improper where it encompasses opinions that ‘call[] for specialized skill or expertise.’” (quoting

Brown, 836 S.W.2d at 550)). Rule 26(a) expressly contemplates that a witness not required to

submit an expert report may nonetheless offer expert testimony. See Fed. R. Civ. P.

26(a)(2)(C)(i).3 And the advisory committee’s notes identify “physicians and other health care

professionals” as “[f]requent examples” of such witnesses. Fed. R. Civ. P. 26 advisory

committee’s note to 2010 amendment.

II.

Nevertheless, the district court’s error in admitting this testimony does not warrant

reversal. The erroneous admission of evidence is harmless where “substantially equivalent

evidence of the same facts had otherwise been admitted into evidence,” United States v.

Robinson, 389 F.3d 582, 593 (6th Cir. 2004), or the government otherwise established

“overwhelming evidence of Defendants’ guilt,” White, 492 F.3d at 405. Both occurred here.

3

The advisory committee’s commentary to Rule 26’s 1993 amendments, which Fielden cites, also

demonstrates that Rule 26(a)(2)(B) centers on distinctions between types of expert witnesses, rather than defining

the category. The 1993 commentary notes that, for purposes of Rule 26, experts are those “who will testify under

Rule 702 of the Federal Rules of Evidence with respect to scientific, technical, and other specialized matters,” but

that the expert report requirement applies only to retained experts. Fed. R. Civ. P. 26 advisory committee’s note to

1993 amendment. The commentary then contrasts retained experts (subject to the expert-report requirement) with

treating physicians, who “can be deposed or called to testify at trial without any requirement for a written report.”

Fielden, 482 F.3d at 869 (quoting id.).

Nos. 22-1106/1107/1465/1568 United States v. Betro, et al. Page 30

First, other evidence established the same points as the improperly admitted testimony.

One of Betro’s patients testified that the injections he received had no effect, as Taqi did.

Beyond Thakur’s testimony, the evidence that the Tri-County doctors were among the top opioid

prescribers despite working reduced hours also established that the clinic’s prescriptions were

“excessive.” And Bolina testified that the quantities prescribed at Tri-County were two to four

times higher than CDC recommendations, testimony that also made that point without crossing

into expert opinion. See United States v. Kilpatrick, 798 F.3d 365, 384–85 (6th Cir. 2015).

Finally, regarding the testimony about facet-joint injections, Rashid testified that Dr. Frank

Patino, another physician involved in the scheme, told him that the clinic physicians billed for

facet-joint injections but actually performed trigger-point injections. Second, as laid out in

Section II.A of the majority opinion, the evidence of Betro’s guilt was otherwise overwhelming.

Therefore, I agree with the majority that the admission of the challenged testimony does

not warrant reversal.