Petition for Writ of Certiorari — Courtney Newman, Petitioner v. United States

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APPENDIX C

Opinion of the U.S. Court of Appeals

April 11, 2022

31 F.4th 396

UNITED STATES of America, Plaintiff-

Appellee,

Vv.

Sylvia HOFSTETTER ; Holli Womack;

Cynthia Clemons; Courtney Newman,

Defendants-Appellants.

Nos. 20-6245/6426/6427/6428

United States Court of Appeals, Sixth

Circuit.

Argued: January 18, 2022

Decided and Filed: April 11, 2022

ARGUED: Loretta G. Cravens, CRAVENS LEGAL,

Knoxville, Tennessee, for Appellant in 20-6245. |

Kevin M. Schad, OFFICE OF THE FEDERAL

PUBLIC DEFENDER, Cincinnati, Ohio, for

Appellant in 20-6426. Randall E. Reagan, THE

LAW OFFICE OF RANDALL E. REAGAN,

Knoxville, Tennessee, for Appellant in 20-6427.

Christopher J. Oldham, Knoxville, Tennessee, for

Appellant in 20-6428. Brian Samuelson, UNITED

STATES ATTORNEY'S OFFICE, Knoxville,

Tennessee, for Appellee. ON BRIEF: Loretta G.

Cravens, CRAVENS LEGAL, Knoxville,

Tennessee, for Appellant in 20-6245. Kevin M.

Schad, OFFICE OF THE FEDERAL PUBLIC

DEFENDER, Cincinnati, Ohio, for Appellant in

20-6426. Randall E. Reagan, THE LAW OFFICE

OF RANDALL E. REAGAN, Knoxville, Tennessee,

for Appellant in 20-6427. Christopher J. Oldham, |

Knoxville, Tennessee, for Appellant in 20-6428.

Brian Samuelson, Tracy L. Stone, UNITED

STATES ATTORNEY'S OFFICE, Knoxville,

Tennessee, for Appellee.

Before: SILER, COLE,

Circuit Judges.

and NALBANDIAN,

COLE, Circuit Judge.

Between 2009 and 2015, Sylvia Hofstetter

managed three "pain-management clinics"

[31 F.4th 410]

in Florida and Tennessee on behalf of three clinic

partners. Hofstetter also co-owned and managed

an additional clinic in Tennessee from 2012 to

2015 without those partners. Cynthia Clemons,

Courtney Newman, and Holli Womack were

employed as nurse practitioners at these clinics in

2013 and 2014. The clinics displayed numerous

indicators of illegal opioid prescription practices,

so the government investigated all four women

and eventually indicted them on multiple charges.

A four-month trial ensued, and the jury convicted

each defendant of maintaining at least one druginvolved premises. Hofstetter was also found

guilty of conspiring to distribute controlled

substances, distributing controlled substances,

and money laundering.

On. appeal, the defendants challenge their

maintaining-a-drug-involved-premises

conviction, arguing that: (1) the underlying

statute is unconstitutionally vague as applied to

them; (2) the district court erred when instructing

the jury; (3) insufficient evidence supported the

jury's verdict; and (4) the jury's verdict was

inconsistent. Hofstetter separately raises

additional issues specific to her convictions,

including that: (1) the district court abused its

discretion when it denied three evidentiary

challenges; (2) the district court erred when

instructing the jury about her distribution-of-acontrolled-substance charge; and (3) she did not

receive a fundamentally fair trial due to

spoliation, Brady obligations, and_ the

government's improper remarks during closing

arguments. Finding no error, we affirm on all

issues.

I. BACKGROUND

Beginning in 2008 or 2009, three partners ran a

medical clinic in Hollywood, Florida. The Florida

partners hired Sylvia Hofstetter to work at the

clinic's front desk, and she soon became the office

manager. One of the partners admitted that, over

time, pain management dominated the clinic's

business, so much so that the other practice areas

dwindled, and the clinic eventually became a "pill

mill." During this period, the Florida partners

suspected Hofstetter of embezzling funds from

the clinic, and they fired her. A few months later,

following a year-long investigation, the Drug

Enforcement Administration ("DEA") raided the

Hollywood clinic and seized approximately 1,900

patient files. The U.S. Attorney's Office for the

Southern District of Florida declined to prosecute

the case due to its already high workload.

A few months before the raid, the Florida partners

decided to open another pain clinic in Knoxville,

Tennessee on Gallaher View Road. The partners

asked a new employee, Christopher Tipton, to

help them expand. They also re-hired Hofstetter

and put her in charge of day-to-day operations at

the Gallaher View clinic, despite her suspected

history of embezzlement. The next year, in 2011,

the Florida partners opened a third clinic in

Lenoir City, Tennessee, and Hofstetter ran this

clinic too. One of the Florida partners testified

that the partners did not intend Gallaher View or

Lenoir City to be legitimate clinics, and that

Hofstetter was involved in discussions about their

intent "to open pill mills in Tennessee." (Trial.

Tr., R. 936, PageID 74947-48.)

In 2012, after receiving many complaints from

neighboring businesses and pressure from their

landlord, the Florida partners closed the Gallaher

View clinic and transferred its patients to the

Lenoir City clinic. When the Gallaher View clinic

closed, Hofstetter approached Tipton about

opening their own clinic together but without the

Florida partners. Tipton agreed, and he and

Hofstetter opened a "secret clinic”

[31 F.4th 411]

on Lovell Road.t (Trial Tr., R. 918, PagelD

64999.) To identify new patients for the Lovell

Road clinic, Hofstetter instructed her staff to call

patients who had been discharged from other

pain clinics for exhibiting signs of drug abuse. The

FBI began investigating all the Tennessee clinics

in 2013 or 2014 and eventually shut down both

the Lenoir City clinic and the Lovell Road clinic

on March 10, 2015.

Cynthia Clemons, Courtney Newman, and Holli

Womack were nurse practitioners at the Lenoir

City and Lovell Road clinics in 2013 and 2014.

During their tenures at the clinics, Clemons,

Newman, and Womack each wrote hundreds of

prescriptions, only three percent of which were

for non-opioids and non-benzodiazepines.

The government filed the first indictment in this

case on March 4, 2015. Over the next three years,

the government filed a series of superseding

indictments and eventually filed the fourth and

final superseding indictment on May 1, 2018. The

final 21-count indictment charged all four

defendants-appellants? —Hofstetter, Clemons,

Newman, and Womack—with maintaining a

drug-involved premises and conspiring to

distribute and dispense controlled substances.

Additionally, Clemons, Hofstetter, and Newman

were charged with illegally distributing and

dispensing controlled substances. Hofstetter was

also charged with a RICO conspiracy, two counts

of conspiring to launder money, and five counts of

money laundering.

On October 21, 2019, the four defendants

proceeded to a four-month jury trial. At trial, the

government's witnesses included one of the

Florida partners, Tipton, and the clinics’ former

medical directors, employees, patients, and

neighbors. Collectively, they testified that the

owners and medical directors knew the clinics

were not legitimate pain management clinics, as

did some staff and patients. They also testified

that Hofstetter prioritized profit over patient care

by soliciting and accepting patients who had been

discharged from other clinics for addictionrelated behaviors; restricting the length of

appointments to maximize fee collection; and

instructing non-qualified staff to see patients and

fill out patient charts.

The government's expert witnesses, including

nurse practitioners, anesthesiologists, and painmanagement physicians, also testified that

Clemons, Newman, and Womack failed to

maintain adequate patient charts, and that they

prescribed opioids at extremely high doses after

incomplete medical examinations and diagnoses

that fell below the standard of care. Witness

testimony also portrayed the clinics as displaying

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numerous "red flags" indicative of criminal

activity. See infra parts II.C.i and ILD.

After the government closed its case-in-chief, the

defendants each moved for judgments of

acquittal. The district court initially reserved

ruling on these motions but later denied them,

finding that "the government hald] presented

sufficient evidence for a rational jury to return a

verdict of guilty [on] all counts.” (Trial Tr., R.

885, PagelD 60982-90.)

The jury issued its verdict on February 13, 2020.

It found all four defendants guilty

[21 F.4th 412]

of maintaining a drug-involved premises at Lovell

Road, and it convicted Hofstetter and Clemons of

maintaining a drug-involved premises at Lenoir

City. The jury also acquitted Clemons, Newman,

and Womack of multiple charges, including drug

conspiracy charges and distribution-ofcontrolled-substances charges.

Hofstetter was separately found guilty of

maintaining a drug-involved premises at Gallaher

View, a RICO conspiracy charge, two drug

conspiracy charges, two money laundering

conspiracy charges, two counts of money

laundering, and one count of illegally distributing

and dispensing controlled substances. She was

acquitted of two distribution charges.

The defendants renewed their motions for

acquittal following the verdict, and they also

requested a new trial. The district court denied

these motions without a hearing on September 14,

2020.

Hofstetter was sentenced to 400 months in

prison, Clemons to 42 months, Newman to 40

months, and Womack to 30 months. The

defendants timely appealed their judgments of

conviction and sentences. This Court has

appellate jurisdiction under 28 U.S.C § 1291.

IT. ANALYSIS

A. The Constitutionality of 21 U.S.C. §

856(a)(1)

Clemons, Newman, and Womack superficially

challenged the constitutionality of 21 U.S.C. §

856(a) —the maintaining-a-drug-involvedpremises statute—in their motions for acquittal,

asserting summarily that the statute is void for

vagueness. Hofstetter did not raise this challenge

at all before the district court. The district court

ruled that the defendants had waived the

argument but nevertheless analyzed its merits

when the court denied the motions. The district

court's merits analysis preserves this argument

for appeal. See United States v. Clariot , 655 F.3d

550, 556 (6th Cir. 2011). We therefore review de

novo the question of whether § 856(a) is

unconstitutionally vague. United States v. Hart ,

635 F.3d 850, 856 (6th Cir. 2011) (citing United

States v. Suarez , 263 F.3d 468, 476 (6th Cir.

2001) ).

A criminal statute is vague if it either "fails to

provide the kind of notice that [ | enable[s]

ordinary people to understand what conduct it

prohibits" or "encourages arbitrary and

discriminatory enforcement.” United States v.

Bowker , 372 F.3d 365, 380 (6th Cir. 2004)

(internal quotation omitted) (quoting City of

Chicago v. Morales , 527 U.S. 41, 56, 119 S.Ct.

1849, 144 L.Ed.2d 67 (1999) ), vacated on other

grounds , 543 U.S. 1182, 125 S.Ct. 1420, 161

L.Ed.2d 181 (2005). "Few statutes meet the voidfor-vagueness threshold: a ‘strong presumptive

validity’ applies to all acts of Congress and mere

‘difficulty’ in determining a statute's meaning

does not render it unconstitutional." United

States v. Kettles , 970 F.3d 637, 650 (6th Cir.

2020) (quoting United States v. Nat'l Dairy

Prods. Corp. , 372 U.S. 29, 32, 83 S.Ct. 594, 9

L.Ed.2d 561 (1963) ). Hypothetical vagueness is

not enough to warrant a new trial—the statute

must be unconstitutionally vague as applied to

this particular case. Id. ; see also Holder v.

Humanitarian Law Project , 561 U.S. 1, 18-19,

130 S.Ct. 2705, 177 L.Ed.2d 355 (2010) ("We

consider whether a statute is vague as applied to

the particular facts at issue[.]"). Accordingly, to

prevail, the defendants must show that §

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856(a)(1) failed to provide sufficient warning that

their conduct would violate the law. See Kettles ,

970 F.3d at 650.

We have not yet decided whether § 856(a)(1) is

unconstitutionally vague in a published opinion.

Cf. United States v. Rosa , 50 F. App'’x 226, 227

(6th Cir. 2002) (holding that § 856(a)(2) was not

unconstitutionally

[31 F.4th 413]

vague as applied to the defendant because it

furnished fair notice). Defendants ask us to find

that § 856(a)(1) is unconstitutionally vague for

three reasons. First, they contend that the phrase

"for the purpose of ... distributing ... controlled

substances” renders § 856(a)(1) unconstitutional

because, read literally, any staff member at a

pharmacy or physicians’ office would violate the

statute. At heart, this argument relates to the

notice and breadth of the statute with respect to

others (not to the defendants themselves), so we

need not address it. Vill. of Hoffman Ests. v.

Flipside, Hoffman Ests., Inc. , 455 U.S. 489, 495,

102 S.Ct. 1186, 71 L.Ed.2d 362 (1982) ("A plaintiff

who engages in some conduct that is clearly

proscribed cannot complain of the vagueness of

the law as applied to the conduct of others.").

Second, the defendants suggest that they were

convicted of lawful distribution under the plain

language of the statute, thereby demonstrating

that § 856(a) is impermissibly vague. And third,

the defendants claim that the statute did not

provide them with fair notice about the illegality

of their conduct. Because the defendants contend

that the statute is ambiguous, they ask us to apply

the rule of lenity.

The government takes the opposite view. It cites

to cases that examine the applicability of 8

856(a)(1) to drug possession or distribution from

private homes and urges us to adopt here a

similar interpretation of the law. See United

States v. Shetler , 665 F.3d 1150, 1164-65 (gth

Cir. 2011) : United States v. Lancaster , 968 F.2d

1250, 1253-54 (D.C. Cir. 1992) ; United States v.

Clavis , 956 F.2d 1079, 1094 (11th Cir. 1992). In

this peripheral context, the cases hold that the

phrase "for the purpose of" gives fair notice to a

defendant accused of distributing controlled

substances out of their personal residence

because it excludes one-off drug sales or

incidental consumption at home. Lancaster , 968

F.2d at 1253-54 ; Clavis , 956 F.2d at 1094. These

cases, however, do not concern pain management

clinics, so those arguments do not aid our

consideration of the question the defendants raise

here.

We conclude that § 856(a)(4) is not

unconstitutionally vague as applied to the

defendants because their conduct put them on

notice that they violated the statute, regardless of

any potential vagueness when applied to

differently situated medical practitioners. There is

no as-applied vagueness when a statute furnishes

fair notice that a defendant's conduct, if proven at

trial, is proscribed. See United States v. Farah ,

766 F.3d 599, 614 (6th Cir. 2014) (rejecting a void

for vagueness claim when the defendant's conduct

"surely [fell] within the ambit of [the statute]").

Here, the jury concluded that the defendants

knowingly used the clinic to distribute controlled

substances illegally, and there was sufficient

evidence to support that conclusion. See infra

part II.C.i. Section 856(a)(1) prohibits such

conduct, so the defendants had notice that their

illegal prescription practices fell within the

statute's purview.

Moreover, contrary to the defendants’ assertion

that they could have been convicted under 8

856(a)(1) for lawful opioid distribution, the

procedural history of this case shows that this did

not occur here. The government indicted the

defendants for "knowingly and _ intentionally

open[ing], us[ing], and maintain[ing] a business

.. for the purpose of illegally distributing and

dispensing Schedule II controlled substances

outside the scope of professional practice and not

for a legitimate medical purpose[.]" (Fourth

Superseding Indictment, R. 320, PageID 5235.)

The district court instructed the jury to find the

defendants guilty only if the government proved

that the drug distribution occurred "for the

purpose of illegally distributing

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[31 F.4th 414]

Schedule II controlled substances[.]" (Trial Tr., R.

897, PageID 61800.) The government submitted

sufficient evidence for the jury to conclude that

the defendants maintained or used the clinics for

the purpose of distributing controlled substances

illegally. See infra part II.C.i. And the jury's

verdict form indicated that the defendants were

found guilty for using or maintaining the clinic

"for the purpose of illegally distributing Schedule

II controlled substances[.]" (Jury Verdict, R. 860,

PageID 60530.) Whether section 856(a) may be

read to convict a defendant for lawful opioid

prescriptions has no bearing on this case. Thus, to

the extent the defendants argue that the statute

led to arbitrary enforcement, their argument lacks

merit. We therefore decline to order a new trial on

this basis.

B. The Jury Instructions

We generally review the legal accuracy of jury

instructions de novo. United States v. Pritchard ,

964 F.3d 513, 522 (6th Cir. 2020) (citing United

States v. Roth , 628 F.3d 827, 833 (6th Cir. 2011)

). If a district court refuses to issue an instruction

as requested by a defendant, however, the given

instruction "must amount to abuse of discretion

in order for us to vacate a judgment." Jd. And if a

defendant did not request a specific instruction

from the district court, we review the instruction

for plain error. United States v. Semrau , 693

F.3d 510, 527 (6th Cir. 2012).

1. The Drug-Involved Premises Instruction

All four defendants were charged with

maintaining a drug-involved premises in violation

of 21 U.S.C. § 856(a)(1). At the close of evidence,

the district court instructed the jury as follows:

Count 13 of the superseding

indictment charges that from in or

about September 2013 through on

or about March 10, 2015

Hofstetter, Newman, Clemons, and

Womack, aided and abetted by one

another and others, did knowingly

and intentionally, open, use, and

maintain a_ business for the

purpose of illegally distributing

Schedule II controlled substances ....

In order to prove a defendant guilty

of opening, using, or maintaining a

drug-involved premises, the

government must prove each of the

following elements beyond a

reasonable doubt

First, that the defendants knowingly

opened, used, or maintained a place,

whether permanently or

temporarily;

And second, that the defendant did

so for the purpose of distributing

any controlled substance.

(Trial Tr., R. 897, PageID 61800.) The defendants

now argue that the district court's § 856(a)(1)

instructions were erroneous because the "jury

should have been instructed that the distribution

of the controlled substances from the clinics had

to have been done without a legitimate medical

purpose and outside the usual course of

professional practice." (Clemons Br. 41; see also

Hofstetter Br. 44; Newman Br. 24; Womack Br.

23-24.) In other words, because the district court

did not include illegal distribution as a third

element of the § 856(a)(1) offense, the defendants

say the instructions violated their due process

rights. See Patterson v. New York , 432 U.S. 197,

210, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977) ("[T]he

Due Process Clause requires the prosecution to

prove beyond a reasonable doubt all of the

elements included in the definition of the offense

of which the defendant is charged."). The

defendants also submit that the § 856(a)(1)

instructions were confusing, misleading, and

prejudicial.

Before the district court issued the above

instructions, it provided

[31 F.4th 415]

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the defendants with advance copies of its

proposed language and convened three charging

conferences to review the draft instructions. None

of the defendants objected to the § 856(a)(1)

instructions at that time. We therefore review the

instructions "as a whole, for plain error." United

States v. Stewart , 729 F.3d 517, 530 (6th Cir.

2013). "To prevail on plain-error review, [a]

defendant must show: (1) error, (2) that is clear

and obvious, and (3) that affects [her] substantial

legal rights." Id. at 528-29. "In the context of

challenges to jury instructions, plain error

requires a finding that, taken as a whole, the jury

instructions were so clearly erroneous as to likely

produce a grave miscarriage of justice." Id. at 530

(quoting United States v. Morrison , 594 F.3d

543, 546 (6th Cir. 2010) ). "[A]n improper jury

instruction will rarely justify reversal of a criminal

conviction when no objection [was] made at trial,"

and "an omitted or incomplete instruction is even

less likely to justify reversal, since such an

instruction is not as prejudicial as a misstatement

of the law." Id. (quoting United States v. Rayborn

, 491 F.3d 513, 521 (6th Cir. 2007) ).

This Court has already concluded that the §

856(a)(1) instructions in this case were not clearly

erroneous, in two nearly identical orders that

responded to motions for release pending appeal

by Clemons and Newman. United States uv.

Clemons , No. 20-6427, Dkt. 23-2, slip op. 3 (6th

Cir. Feb. 25, 2021); United States v. Newman ,

No. 20-6428, Dkt. 18-2, slip op. 3 (6th Cir. Feb.

18, 2021). The previous panel provided three

main reasons for doing so.

First, "the instruction was an accurate statement

of the law" because it set forth the elements of a §

856(a)(1) violation "exactly as listed in the United

States Code." Clemons , slip op. 3; Newman , slip

op. 3. In general, "a proposed jury instruction

must be a correct statement of [the] law," so we

do not find fault on the part of the district court

when it issues instructions that "more closely

mirrored the statute” than the defendant's

proposed language does. Pritchard , 964 F.3d at

523 (internal quotation omitted). We therefore

agree that we "cannot conclude the district court

abused its discretion,” much less plainly erred, in

providing “language more faithful to the statute”

over the defendants’ alternative language.3 Id.

Second, "this [c]ourt has consistently listed the

elements of a 21 U.S.C. § 856(a) conviction

without including illegal distribution,” even in pill

mill cases. Clemons , slip op. 3; Newman , slip op.

3; see also United States v. Sadler , 750 F.3d 585,

592 (6th Cir. 2014) ("To support [a § 856(a)(Q1) |

charge, the government had to show that the

[defendants] knowingly maintained their [pain]

clinics for the purpose of distributing a controlled

substance."); United States v. Lang , 717 F. App'x

523, 545 (6th Cir. 2017) ("To convict a defendant

on [a § 856(a)(1) | charge[ J, the government must

prove beyond a reasonable doubt that the

defendant (1) knowingly (2) maintained any

place, whether permanently or temporarily, (3)

for the purpose of distributing a controlled

substance.") (citing United States v. Russell , 595

F.3d 633, 644 (6th Cir. 2010) ). Defendants do

not cite, and we have not found, any case law that

answers the question of whether the district

[31 F.4th 416]

court was required to list illegal drug distribution

as one of the elements of a § 856(a)(1) offense in a

pill mill case. And "[a] lack of binding case law

that answers the question presented" precludes

"our finding of plain error." United States v. Al-

Maliki , 787 F.3d 784, 794 (6th Cir. 2015) (citing

United States v. Woodruff , 735 F.3d 445, 450

(6th Cir. 2013) ).

Third, "taken as a whole, [the instructions] made

it clear to the jury that they had to determine that

the premises were used for the illicit distribution

of drugs." Clemons , slip op. 4; Newman , slip op.

4. The district court began by instructing the jury

that the § 856(a)(1) offense "charges that ... [the

defendants] did knowingly and _ intentionally

open, use, and maintain a business ... for the

purpose of illegally distributing Schedule II

controlled substances [.]" (Trial Tr., R. 897,

PageID 61800 (emphasis added).) This

explanation immediately preceded the district

court's recitation of the statutory elements of a §

856(a)(1) offense. Given the proximity of the

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illegality explanation to the recitation of the

elements, the instruction did not "likely produce a

grave miscarriage of justice." Stewart , 729 F.3d

at 530. Furthermore, the indictment and the jury

verdict form underscore the completeness of the

jury instruction when taken as a whole because

language in both also made clear that the

defendants were being charged for and convicted

of unlawful opioid distribution. Accordingly, the

district court did not plainly err by giving the

instruction, and we affirm the district court.

it. The Pinkerton Liability Instruction

Hofstetter and Newman were both charged with

distributing and dispensing controlled

substances, aided and abetted by each other, in

violation of 21 U.S.C. § 841. The district court

explained to the jury that the government could

prove Hofstetter and Newman guilty of this crime

in one of three ways:

The first is by convincing you that

they personally committed or

participated in this — crime.

The second is based on the legal rule

that all members of a conspiracy are

responsible for acts committed by

the other members, as long as those

acts are committed to help advance

the conspiracy and are within the

reasonably foreseeable scope of the

agreement.

(Trial Tr., R. 897, PageID 61819—20.) Third, the

district court also noted that the jury could find

the defendants guilty “if [they] intentionally

helped or encouraged others to commit the

crime"—that is, under an aiding and abetting

theory of liability. dd . at PageID 61819.) Only

Hofstetter was convicted.

Hofstetter argues on appeal that the jury should

not have been told about the second conspiracybased method of liability. In particular, she claims

that the jury should not have been able "to

consider the conspiracy law as a means to

convict" her because she was not charged with

conspiracy in this count, and the elements for

aiding and abetting are different from conspiracy.

(Hofstetter Br. 20.) Because she did not object to

the district court's instructions before it issued

them, we review the instructions for plain error.

Semrau , 693 F.3d at 527.

The conspiracy-based method that the district

court outlined is known as Pinkerton liability. See

Pinkerton v. United States , 328 U.S. 640, 66

S.Ct. 1180, 90 L.Ed. 1489 (1946). " Pinkerton is a

doctrine about guilt-stage liability for a coconspirator's substantive offenses." United States

v. Hamm , 952 F.3d 728, 747 (6th Cir.), cert.

denied , --— U.S. —----, 140 S. Ct. 2695, 206

L.Ed.2d 837 (2020), and cert. denied

[31 F.4th 417]

sub nom. Shields v. United States , -—-- U.S. ---

—, 141 S. Ct. 312, 208 L.Ed.2d 60 (2020). We have

long held that "persons indicted as aiders and

abettors"—as Hofstetter was with respect to this

claim—"may be convicted pursuant to a Pinkerton

instruction.” United States v. Lawson , 872 F.2d

179, 182 (6th Cir. 1989) (quoting United States v.

Cerone , 830 F.2d 938, 944 (8th Cir. 1987) ).

Further, "a district court may properly provide a

Pinkerton instruction regarding a substantive

offense, even when the defendant is not charged

with the offense of conspiracy.” United States v.

Budd , 496 F.3d 517, 528 (6th Cir. 2007)

(affirming the district court's instructions, which

included a Pinkerton instruction for a nonconspiracy offense); see also United States v.

Adkins , 372 F. App'x 647, 652 (6th Cir. 2010).

Accordingly, there is no plain error in the district

court's given instruction, and we affirm.

iti. The Deliberate-Indifference Instruction

Hofstetter also challenges the district court's

deliberate-indifference instruction with respect to

her distribution charge. Hofstetter requested

different instructions than the one the district

court gave, so this Court reviews the district

court's instruction for abuse of discretion. See

Pritchard , 964 F.9d at 529. "A trial court has

broad discretion in crafting jury instructions and

does not abuse its discretion unless the jury

charge fails accurately to reflect the law." United

States v. Geisen , 612 F.3d 471, 485 (6th Cir.

2010) (internal quotation and citation omitted).

To convict Hofstetter of unlawful distribution

under 21 U.S.C. § 841(a)(1), the government was

required to prove that Hofstetter "knowingly or

intentionally" distributed a controlled substance

"outside the scope of professional medical

practice and not for a legitimate medical

purpose[.]" (Trial Tr., R. 897, PageID 61805.)

With respect to the knowledge element, the

district court instructed the jury that Hofstetter

could be found lable under the doctrine of

deliberate indifference:

Although knowledge of _ the

defendant cannot be established

merely by demonstrating that she

was careless, knowledge may be

inferred if the defendant

deliberately blinded herself to the

existence of a fact. No one can avoid

responsibility for a crime by

deliberately ignoring the obvious.

If you are convinced that a

defendant deliberately ignored a

high probability that the controlled

substances, as alleged in these

counts, were distributed outside the

usual course of professional practice

and not for a legitimate medical

purpose, then you may find that the

defendant knew that this was the

case.

But you must be convinced beyond a

reasonable doubt that the defendant

was aware of a high probability that

the controlled substances were

distributed outside the usual course

of professional practice and not for

a legitimate medical purpose, and

that the defendant deliberately

closed her eyes to what was obvious.

Carelessness or negligence or

foolishness on her part are not the

same as knowledge, and are not

enough to find her guilty of any

offense charged under this law.

(Id. at PageID 61806-—07.) Hofstetter argues that

this instruction does not incorporate the

deliberate indifference standard announced in

Global-Tech Appliances, Inc. v. SEB S.A. , 563

U.S. 754, 769, 131 S.Ct. 2060, 179 L.Ed.2d 1167

(2011). Specifically, Hofstetter claims the jury

should have been instructed that a defendant is

not deliberately indifferent unless she

“subjectively believe[s] that there is a high

probability that a fact exists" and "take[s]

deliberate

[31 F.4th 418]

actions to avoid learning of that fact." (Hofstetter

Br. 40 (quoting Global-Tech , 563 U.S. at 769, 131

S.Ct. 2060 ).)

Hofstetter’'s proposed instruction and the one

given are functional equivalents: both require the

defendant to have been aware of a “high

probability” that a fact exists and to have

"deliberately" avoided full knowledge. In addition,

the district court's instruction tracks (and adds

to) the language in this Court's model jury

instructions on deliberate indifference, which

have been approved as consistent with Global-

Tech . See Sixth Circuit Pattern Instruction 2.09;

United States v. Reichert , 747 F.3d 445, 451 (6th

Cir. 2014). The Supreme Court also acknowledged

that similar instructions complied with Global-

Tech . 563 U.S. at 769 & n.9, 131 S.Ct. 2060

(citing, e.g. , United States v. Holloway , 731 F.2d

378, 380-81 (6th Cir. 1984) (per curiam)).

Accordingly, the district court did not abuse its

discretion with respect to the deliberateindifference instruction.

Because there is no plain error in either the

maintaining-a-drug-involved-premises

instruction or the Pinkerton instruction, and

because the district court did not abuse its

discretion by instructing the jury as to deliberate

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indifference, we affirm each of the three contested

jury instructions.

C. Sufficiency of the Evidence

We review de novo the sufficiency of the evidence

to sustain a conviction when a defendant raises a

challenge under Federal Rule of Criminal

Procedure 29. United States v. Emmons , 8 F.4th

454, 477 (6th Cir. 2021) (quoting United States v.

Gunter , 551 F.3d 472, 482 (6th Cir. 2009) ).

Rule 29 requires courts to "enter a judgment of

acquittal of any offense for which the evidence is

insufficient to sustain a conviction[,]" regardless

of the jury's verdict, upon a defendant's motion.

Fed. R. Crim. P. 29(a). When considering the

sufficiency of the evidence, we "review[ ] the

evidence in the light most favorable to the

prosecution" and determine whether "any

rational trier of fact could have found the

essential elements of the crime beyond a

reasonable doubt.” Emmons , 8 F.4th at 477-78

(quoting United States v. Wallace , 597 F.3d 794,

800 (6th Cir. 2010) ). In so doing, we make "[alll

reasonable inferences ... to support the jury

verdict[,|" United States v. LaVictor , 848 F.3d

428, 456 (6th Cir. 2017), and do not "reweigh the

evidence, reevaluate the credibility of witnesses,

or substitute [our] judgment for that of the jury,”

Emmons , 8 F.4th at 478 (quoting United States

v. Callahan , 801 F.3d 606, 616 (6th Cir. 2015)

(alteration in original)). Moreover,

"[cjircumstantial evidence alone is sufficient to

sustain a conviction and such evidence need not

remove every reasonable hypothesis except that of

guilt." LaVictor , 848 F.3d at 456 (quoting United

States v. Spearman , 186 F.3d 743, 746 (6th Cir.

1999) ).

"[A] defendant claiming insufficiency of the

evidence [therefore] bears a very heavy burden."

Emmons , 8 F.4th at 478 (quoting United States

v. Abboud , 438 F.3d 554, 589 (6th Cir. 2006) ).

And "[t]he general hesitancy to disturb a jury

verdict applies with even greater force when a

motion of acquittal has been thoroughly

considered and subsequently denied by the trial

judge." United States v. Fisher , 648 F.3d 442,

450 (6th Cir. 2011) (internal quotation and

citation omitted). Here, on two separate

occasions, the district court held that there was

sufficient evidence to support the jury's verdict on

these counts. We find the same.

i. The Drug-Involved Premises Convictions

The four defendants were each charged with one

to three counts of maintaining a

[31 F.4th 419]

drug-involved premises under 21 U.S.C. §

856(a)(1). They were also charged for these

offenses under 18 U.S.C. § 2, which imposes

liability under an aiding and abetting theory.

Hofstetter was convicted of three counts, Clemons

of two, and Newman and Womack of one each. All

four defendants argue that there was insufficient

evidence to support their convictions.

To support a conviction under § 856(a)(1), the

government needed to prove, beyond a

reasonable doubt, that the defendants "knowingly

open[ed], lease[d], rent[ed], usef[d], or

maintain[ed] any place, whether permanently or

temporarily," for the purpose of _ illegally

distributing controlled substances. United States

v. Elenniss , 729 F. App'x 422, 428 (6th Cir. 2018)

(quoting 21 U.S.C. § 856(a)(1) ); see also United

States uv. Russell , 595 F.3d 633, 644 (6th Cir.

2010).

a. Knowingly

First, the government submitted significant

circumstantial evidence that would allow a

reasonable jury to conclude that the defendants

knew they maintained or used the clinics to

distribute controlled substances illegally. For

example, none of the clinics accepted insurance,

and each charged a flat cash fee of $300 to $350

per appointment. Third parties often paid other

patients’ fees, and groups of patients sometimes

arrived together in a single car, often from out-ofcounty. The waiting rooms were frequently

crowded to standing room only, and patients

commonly waited hours for appointments.

Additionally, former patients testified that they

went to the clinics while exhibiting symptoms of

drug withdrawal, appearing “high” or "junked

out." (Trial Tr., R. 922, PageID 66038—40; Trial

Tr., R. 923, PageID 66206.) The signs of addiction

were "obvious." (Trial Tr., R. 921, PageID 65599.)

One witness said the parking lot "looked more like

... a place where people go to get high versus go to

obtain a prescription.” (Trial Tr., R. 924, PageID

66518—-19.) A former staff member testified that,

on his first day, he found a crowd of people

waiting for the Lenoir City clinic to open, who

were “all talking to each other about [which

provider] ... would get them the most medicine."

(Trial Tr., R. 936, PageID 74712, 74722—23.) The

Gallaher View and Lovell Road clinics received

complaints that the clinics’ customers engaged in

petty crimes and drug deals and discarded

syringes in the clinic parking lots.

The clinics also allegedly fostered criminal activity

among the staff members, who engaged in

kickback schemes from pharmaceutical

companies and drug-testing laboratories in return

for their business. Staff members also accepted

bribes from patients in return for their help in

passing drug tests or skipping long wait times.

Other former staff members quit the clinics

shortly after being hired. For example, a former

physician's assistant quit after just six weeks on

the job. She testified: "You go into a clinic like

that, and you see all of the irregularities. You see

all of the different things happening. You look at

the patients. You put it all together.... [T]hat place

did not follow medical standard of care.” (Trial

Tr., R. 919, PageID 65328—29.) She drew these

conclusions without having any previous pain

management experience.

Former clinic medical directors echoed these

concerns, sometimes raising them with Hofstetter

directly. For example, former medical director Dr.

Marc Valley prepared a report outlining all the

problems of the clinics—including prescriptions

that had "no purpose in chronic pain

management" and diagnoses that did not support

the use of controlled substances. (Gov't Trial Ex.

498, R. 1188-7, PageID 81135.) His report

concluded: "This clinic fits all

[31 F.4th 420]

criteria for the definition of ‘Pill Mill.’ .... [T]his is

the most egregious example of inappropriate

medical oversight and opioid management that I

have ever seen." (Id. at PageID 88136-37.) He

gave the report to Hofstetter.

It is true, as the defendants emphasize, that some

of the government's witnesses testified only about

one particular clinic and not about the others.

Other witnesses did not know or interact with

each defendant. And still others did not notice

illegal or concerning activity at the clinics. But we

cannot reweigh the evidence, reevaluate witness

credibility, or prioritize our judgment over the

jury's, so these discrepancies do not counsel in

favor of reversal. Callahan , 801 F.3d at 616. It is

also true that the government did not produce any

direct evidence that Clemons, Womack, and

Newman knowingly used the clinics for the

purpose of illegal drug activity. But this is

irrelevant. Circumstantial evidence, on its own, is

sufficient to sustain a conviction. LaVictor , 848

F.3d at 456. And here, there is certainly enough

circumstantial evidence to support the jury's

conclusion that the defendants "would know that

the clinics in this case were pill mills, and by

choosing to associate themselves with the clinics,

... [they] agreed to assist in the diversion of

opioids to drug addicts and drug dealers.” (Trial

Tr., R. 885, PageID 60983.)

b. Maintained or Used

A defendant need not lease or own the building to

"maintain" it under the second element. Russell ,

595 F.3d at 644. Instead, "control , duration,

acquisition of the site, renting or furnishing the

site, repairing the site, supervising , protecting,

supplying food to those at the site, and

continuity’ all evince "maintenance." Id.

(emphasis added). The government submitted

sufficient evidence to show that Hofstetter

supervised the clinics. She oversaw the clinics as

office manager and part owner by administering

daily operations and managing personnel. She

controlled the clinics by instructing staff to

modify medical records and directing employees

without medical licenses to attend to patients.

The record also sufficiently supports a finding

that Clemons, Newman, and Womack "used" the

clinics for the purpose of distributing controlled

substances illegally. Section 856(a)(1) "uses the

disjunctive conjunction ‘or’ between the listed

alternative ways of violating the statute, [so] §

856(a)(1) is violated simply by using a place for

the commission of the specified drug crimes;

proof that the defendant ‘maintain[ed]’ the

premises, which is a separate way of violating the

statute, is not necessary for conviction.” United

States uv. Facen , 812 F.3d 280, 289 (2d Cir.

2016). Thus, whether the government proved that

Clemons, Newman, and Womack "maintained"

the premises is not the sole inquiry; we must also

consider whether the defendants used the

premises for the purpose of illegal drug

distribution.

The government showed that Clemons, Newman,

and Womack each used the clinics to write

hundreds of prescriptions for opioids and

benzodiazepines during their tenures at the

clinies, and in roughly the same proportion: 54 to

57 percent of their prescriptions were for

oxycodone, 24 to 33 percent for oxymorphone,

and 8 to 14 percent for morphine. Non-opioid,

non-benzodiazepines accounted for less than

three percent of their prescriptions. Drawing the

evidence in the light most favorable to the

prosecution, the jury could have reasonably

concluded that Hofstetter maintained the clinics,

and Clemons, Newman, and Womack used the

clinics, to distribute drugs illegally.

[31 F.4th 421]

c. For the Purpose of Illegal Distribution

To prove the last element, the government was

required to show that each defendant "was

significantly motivated to maintain [or use] the

premises for drug-related purposes.” United

States v. Serrano-Ramirez , 811 F. App'x 327, 339

(6th Cir. 2020) ; see also Russell , 595 F.3d at 642

(finding that a defendant maintains or uses a

place "for the purpose of" distributing drugs if the

"drug distribution was a significant or important

reason "). There must also be sufficient evidence

that the controlled substances were distributed

illegally, or "without a legitimate medical

purpose." United States v. Chaney , 921 F.3d 572,

591 (6th Cir. 2019),

Sufficient evidence supports this element as to

each defendant. When Hofstetter opened her own

clinic with Tipton at Lovell Road, she instructed

her staff to solicit patients that had been

discharged from other pain clinics for signs of

drug abuse, such as displaying "track marks” or

testing positive for illegal drugs. (Trial Tr., R. 906,

PageID 76749.) Hofstetter used this strategy to

build much of the initial patient base at Lovell

Road. The government also submitted evidence

that Hofstetter prioritized profit over patient care:

she limited appointments to 15 minutes, she

instructed staff members with no medical training

to fill out patient charts, and she generally

focused on getting "the patients ... in there and

paying their fee." (Trial Tr., R. 906, PageID

76794.)

Sufficient evidence also supports the jury's

finding that Clemons, Newman, and Womack

used the clinics for the purpose of distributing

opioids unlawfully. In addition to the number of

opioid prescriptions that they issued (in the same

proportions, described above), Dr. John Everett

Blake—an anesthesiologist and pain management

physician—testified that high-dose opioids

accounted for the vast majority of treatment

offered at the clinics, and that none of the opioid

prescriptions he reviewed in about 90 patient files

were written for a legitimate medical purpose.

Another expert witness testified that none of the

files he reviewed contained the necessary

elements of a medical chart, noting that medical

histories and results from physicals, diagnoses,

and treatment plans all fell below the standard of

care. See infra part II.D.ii. And former patients

testified that they visited the clinics to obtain

opioids to feed their addictions or to resell.

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Moreover, former staff member Stephanie

Puckett testified that she and another staff

member participated in one of the pharmaceutical

kickback schemes, where they received a payout

each time they prescribed a specific pain cream.

Because Puckett and the other staff member could

not write prescriptions themselves, they asked

Clemons, Newman,? and Womack to participate

in the scheme and, according to Puckett, all three

women agreed. Womack even allegedly signed a

blank prescription for the pain cream, so that

Puckett could copy it and place them in the file of

every Womack patient with insurance.

Clemons, Newman, and Womack highlight that

some of the clinics’ former patients testified that

they did experience chronic pain and needed

medication to control it. But this argument does

not change our analysis because:

[31 F.4th 422]

[W]e look at a provider's reason for

issuing the prescription when

determining whether it was issued

for a legitimate medical purpose,

rather than the patient's underlying

conditions ves a [provider]

prescribing opioid painkillers to

anyone walking through the door is

not saved if a person happens to

have an underlying condition that

could justify the prescription.

Chaney , 921 F. 3d at 590-91 (collecting similar

cases).

Clemons, Newman, and Womack also emphasize

that some witnesses testified that the defendants

acted professionally and ethically with respect to

prescriptions. And Dr. Blake testified that

reasonable minds could differ as to the standard

of care offered by the providers, in part because

the Tennessee guidelines at the time did not limit

the amount of medication that could be

prescribed to a patient. In essence, with these

challenges, Clemons, Newman, and Womack ask

us to weigh some testimonies over others and to

assess witness credibility, which we may not do

when considering the sufficiency of the evidence

on appeal. Emmons , 8 F.4th at 478. There was

sufficient evidence for a reasonable jury to

conclude that the evidence proved each element

of this offense, and we affirm the defendants’

convictions.

u. Hofstetter's Conspiracy Convictions

Hofstetter also argues that insufficient evidence

supported her three conspiracy convictions: a

conspiracy to distribute controlled substances at

Gallaher View and Lenoir City, a conspiracy to

distribute controlled substances at Lovell Road,

and a RICO conspiracy.

To prove that Hofstetter participated in the first

two drug conspiracies, the government was

required to show that she, along with at least one

other individual, "agreed to violate a drug law

(such as § 841(a)(4) ’s ban on distributing drugs)

and that [she] knowingly and voluntarily entered

into this agreement." United States v. Wheat ,

988 F.3d 299, 306 (6th Cir. 2021). Because

conspiracy is an inchoate offense, the essence of a

conspiracy "is an agreement to commit an

unlawful act.” Id. (quoting Iannelli v. United

States , 420 U.S. 770, 777, 95 S.Ct. 1284, 43

L.Ed.2d 616 (1975) ). The government did need

not to prove that Hofstetter "completed [her]

agreed-upon drug crime" or even that she "took

an overt act to implement the crime." Id.

Furthermore, "[a]n agreement can be tacit, not

formal, and the ‘government may meet its burden

of proof through circumstantial evidence.’

United States v. Williams , 998 F.3d 716, 728 (6th

Cir. 2021) (quoting United States v. Layne , 192

F.3d 556, 567 (6th Cir. 1999), cert. denied , 529

U.S. 1029, 120 S.Ct. 1443, 146 L.Ed.2d 330

(2000) ).

Benjamin Rodriguez, one of the Florida partners,

testified that the partners discussed that they did

not intend Gallaher View and Lenoir City to be

legitimate clinics, and that Hofstetter was

involved in those discussions and aware of their

intent. Rodriguez described that Hofstetter

"would always call us the three amigos and that

we were here to open up a pill mill." (Trial. Tr., R.

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936, PageID 74948.) Witnesses also testified that

Hofstetter approached Tipton about opening

Lovell Road, without the Florida partners, and

that she found patients for this new clinic by

soliciting patients that had previously been

discharged from other clinics for exhibiting signs

of drug abuse.

Rodriguez and Tipton also described how the

Florida partners fired Hofstetter from the

Hollywood clinic for suspected embezzlement, but

then later re-hired her to run the Tennessee

clinics and retained her even though they believed

her to be

[31 F.4th 423]

embezzling again. The government argued that

this evidence further demonstrates that the

Florida partners and Hofstetter intended to

operate the clinics unlawfully. See infra part

II.D.i.a. Viewing all the evidence in the light most

favorable to the government, we find that there

was sufficient support for the jury's conclusion

that Hofstetter knowingly agreed to violate a drug

law at the clinics. Hofstetter's arguments about

conflicting testimony and weight of the evidence

are not for us to consider. See LaVictor , 848 F.3d

at 456.

To prove that Hofstetter participated in a RICO

conspiracy, the government was required to show

that she "intended to further an endeavor which,

if completed, would satisfy all the elements of a

substantive RICO criminal offense[.]" United

States v. Fowler , 535 F.3d 408, 420 (6th Cir.

2008) (quotation marks and brackets omitted)

(quoting United States v. Saadey , 393 F.3d 669,

676 (6th Cir. 2005) ). A substantive RICO offense

requires the government to prove: (1) the

existence of an enterprise that affects interstate

commerce; (2) Hofstetter's association with the

enterprise; (3) Hofstetter's participation in the

conduct of the enterprise's affairs; and (4) that

the participation occurred through a pattern of

racketeering activity. Id. at 418.

Hofstetter appears to challenge the evidentiary

support for the first element: she suggests that the

clinics were not "RICO organization[s]" because

there is not substantial evidence that they

"unlawfully distribute[d] pain medication outside

the usual course of professional practice and for

no legitimate medical purpose." (Hofstetter Br.

42-43.) She highlights specific testimony in

support. But as already discussed throughout this

section, the government submitted sufficient

evidence for the jury to find otherwise. Hofstetter

offers no other argument as to this charge. We

therefore affirm the verdict.

iu. Hofstetter's Distribution Conviction

Finally, Hofstetter challenges the sufficiency of

the evidence supporting her conviction for

distributing and dispensing controlled substances

outside the scope of professional practice, in

violation of 21 U.S.C. § 841(a)(1). Specifically,

Hofstetter argues that "[n]o witness testified that

[she] ever engaged in prescribing the

medication outside the usual course’ of

professional practice ... or instructed anyone to do

so." (Hofstetter Br. 41.)

The evidence, however, supports Hofstetter's

conviction under an aiding and abetting theory of

liability. To prove Hofstetter was guilty of aiding

and abetting unlawful distribution, the

government was required to show that she "(1)

[took] an affirmative act in furtherance of that

offense, (2) with the intent of facilitating the

offense's commission." Rosemond v. United

States , 572 U.S. 65, 71, 134 S.Ct. 1240, 188

L.Ed.2d 248 (2014). As discussed above, there

was more than sufficient evidence to support the

jury's conclusion that Hofstetter took affirmative

acts to further the unlawful distribution of

opioids, and that she intended to do so.

iu. Hofstetter's Money Laundering Convictions

Hofstetter generally alleges "that the jury verdict

was against the manifest weight of the evidence,"

but she does not specifically argue that there was

insufficient evidence to support her money

laundering convictions. (See Hofstetter Br. 40-

44.) Because Hofstetter fails to raise an argument

as to these convictions in her brief before this

Court, she has forfeited the issue. See Watkins v.

Healy , 986 F.3d 648, 667 (6th Cir. 2021).

[31 F.4th 424]

D. Hofstetter's Evidentiary Challenges

Hofstetter challenges three of the district court's

evidentiary rulings at trial, each of which pertain

to her alone. We review the district court's

evidentiary rulings for abuse of discretion. United

States v. Dixon , 413 F.3d 540, 544 (6th Cir.

2005). An abuse of discretion occurs if the district

court relies on clearly erroneous findings of fact,

uses the wrong legal standard, or misapplies the

correct standard. United States v. Gibbs , 797

F.3d 416, 422 (6th Cir. 2015). Absent a "definite

and firm conviction" that the district court

committed a clear error in judgment, we "leave

rulings about admissibility of evidence

undisturbed[.]" Dixon , 413 F.3d at 544 (citation

omitted). If we find the district court erroneously

admitted evidence, "we ask whether the

admission was harmless error or requires reversal

of a conviction.” United States v. Churn , 800

F.3d 768, 775 (6th Cir. 2015).

i. Evidence of Hofstetter's Embezzlement

This standard applies where, as here, we review a

district court's determination that Federal Rule of

Evidence 404(b) is inapplicable because the

evidence is intrinsic. Id. at 779. In this

circumstance, we "must also find that ... the

probative value of the evidence was not

substantially outweighed by the danger of unfair

prejudice pursuant to Federal Rule of Evidence

403." Id. (quoting United States v. Joseph , 270 F.

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

At trial, the government introduced evidence that

Hofstetter “embezzled very large amounts of

money from other pill mill owners in this case (.e.

, [the Florida partners])" multiple times in both

Florida and Tennessee. (Resp. to Def.’s Mot. in

Limine, R. 624, PageID 11350.) The government

explained that Hofstetter's alleged embezzlement

was "part and parcel of [her] overall criminal

conduct in this case" and reflected "the general

illegitimacy of the Tennessee clinics.” (Id .)

Moreover, the government argued that the

Florida partners’ willingness to rehire Hofstetter

after suspecting her of embezzlement showed that

they accepted the "cost of doing illegal

business|.]" (Ud. at PageID 11350—51.) Hofstetter

moved to exclude evidence about her unindicted

embezzlement conduct.

The district court denied Hofstetter's motion

orally at a pretrial conference. Hofstetter then

filed a subsequent motion on the same issue,

which the district court construed as a motion for

reconsideration. Following a hearing, the district

court again permitted the government to admit

the evidence for three primary reasons. First, the

district court found that the evidence of the

alleged embezzlement was intrinsic because "the

alleged thefts [had] a temporal and _ spatial

connection to and arise from the same events as

the charged conspiracies." (Mem. Op. and Order,

R. 718, PageID 14246.) Second, even if the

evidence were not intrinsic, it would nevertheless

be admissible because it "tend[ed] to show

[Hofstetter's] motive and intent in allegedly

joining the alleged conspiracies." Ud. at PageID

14250.) Third, the district court determined that

the probative value of the evidence was not

substantially outweighed by a danger of unfair

prejudice.

At trial, one of the Florida partners testified that

the partners fired Hofstetter from the Hollywood

clinic because they suspected that she embezzled

clinic funds. Tipton testified that the Florida

partners also suspected her of embezzling funds

at the Gallaher View clinic but decided not to fire

her again. The district court overruled

Hofstetter's objections at trial, but it instructed

the jury to consider the evidence only as it related

to Hofstetter's intent and

[31 F.4th 425]

motive to join the conspiracy "and her knowledge

that the clinics ... were allegedly not legitimate

pain clinics." (Trial Tr., R. 901, PageID 61954—-

55.)

Hofstetter does not dispute that the evidence is

intrinsic, but instead argues that the district court

"relied on clearly erroneous facts that [she] came

to Tennessee to start up illegal pain clinics" when

it determined that the testimony was relevant to

her motive or intent. (Hofstetter Br. 35.) She also

argues that the testimony should have been

excluded because any relevance was "substantially

outweighed by the danger of ... unfair prejudice,

confusing the issues, or misleading the jury[.]"

(Id. )

a. Intrinsic Evidence

Under Federal Rule of Evidence 404(b)(a),

"[e]vidence of any other crime, wrong, or act is

not admissible 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 purpose of this rule is

to prevent the jury from inferring that a

defendant "probably committed the crime

charged" because she committed other, unrelated

crimes. Emmons , 8 F.4th at 473 (quoting United

States v. Phillips , 599 F.2d 134, 136 (6th Cir.

1979) ).

Rule 404(b) is not implicated, however, when

evidence of other crimes or wrongs "is part of a

continuing pattern of illegal activity.” United

States v. Adams , 722 F.3d 788, 822 (6th Cir.

2013) (quoting United States v. Barnes , 49 F.3d

1144, 1149 (6th Cir. 1995) ). Such "intrinsic" acts

“are those that are inextricably intertwined with

the criminal act charged or a part of the criminal

activity as opposed to extrinsic acts, which are

those that occurred at different times and under

different circumstances from the _ offense

charged." Churn , 800 F.3d at 779 (internal

quotation omitted). "[E]vidence relating to the

background of the charged offense, known as ‘res

gestae evidence,’ is also considered ‘intrinsic ....’ "

United States v. Sumlin , 956 F.3d 879, 889-90

(6th Cir. 2020). "Typically, such evidence is a

prelude to the charged offense, is directly

probative of the charged offense, arises from the

same events as the charged offense, forms an

integral part of a witness's testimony, or

completes the story of the charged offense.” Id. at

890 (quoting United States v. Hardy , 228 F.3d

745, 748 (6th Cir. 2000) ).

Intrinsic evidence is an exception to Rule 404(b)

because it "is probative of the crime charged," so

it is not subject to the general prohibition on

evidence of prior bad acts. Sumlin , 956 F.3d at

889. We therefore allow district courts to admit

intrinsic evidence. Churn , 800 F.3d at 779.

Here, the district court found that the evidence of

Hofstetter's purported embezzlement was

intrinsic to the charged offenses because it

allegedly occurred during the same period of time

and in the same place as_ Hofstetter's

conspiratorial conduct, it directly related to her

involvement in the Florida and Tennessee clinics,

and it arose from the same events as the

embezzling offenses for which Hofstetter was

indicted. In other words, the district court found

that the evidence was a prelude to, inextricably

intertwined with, and probative of the criminal

activity for which Hofstetter was being tried. The

district court did not abuse its discretion in

reaching this conclusion because it correctly

applied the appropriate legal standard and relied

on accurate findings of fact.

Likewise, the district court did not abuse its

“substantial discretion in balancing probative

value ... and unfair prejudice" under Rule 403

when it determined that the embezzlement

evidence was not unfairly prejudicial.

[31 F.4th 426]

United States v. Zipkin , 729 F.2d 384, 390 (6th

Cir. 1984) (internal quotations omitted) ("The

usual approach on the question of admissibility

on appeal is to view both probative force and

prejudice most favorable towards the proponent,

that is to say, to give the evidence its maximum

reasonable probative force and its minimum

reasonable prejudicial value.") (quoting 1 J.

Weinstein & M. Berger, Weinstein's Evidence {

403103] (1982)). The district court found that the

thefts were "not collateral to the charged

offenses," so the danger of unfair prejudice did

not substantially outweigh the probative value of

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the theft evidence. (Mem. Op. and Order, R. 718,

PageID 14250); see also Churn , 800 F.3d at 779.

Because Hofstetter's alleged embezzlement arose

from the same—not auxiliary—circumstances as

the charged offenses, the district court did not err.

See United States v. Lang , 717 F. App'x 523, 531

(6th Cir. 2017) (affirming the district court's

admission of evidence that the defendant

skimmed cash from a pill mill because "any unfair

prejudice that resulted from [its] admission [was]

simply not enough" to overcome its "substantial

probative force").

b. Motive or Intent

Even if the embezzlement evidence were. not

intrinsic, Rule 404(b) would not bar its admission

because relevant evidence of "other crimes,

wrongs, or acts" is admissible for non-propensity

purposes, such as proving intent or knowledge.

Fed. R. Evid. 404(b)(1)-(2) ; United States v.

Clay , 667 F.3d 689, 693-94 (6th Cir. 2012). The

district court may admit such evidence under

Rule 404(b) if it determines that: (1) there is

sufficient evidence the act occurred; (2) the act is

admissible for a proper purpose; and (3) the

probative value is not substantially outweighed by

the danger of unfair prejudice. United States v.

Hardy , 643 F.3d 143, 150 (6th Cir. 2011).4

Here, the embezzlement evidence was admissible

under Rule 404(b). First, there was sufficient

evidence that Hofstetter was fired from the

Hollywood clinic for embezzlement and that the

Florida partners believed she was embezzling

funds again in Tennessee. Two of Hofstetter's coconspirators testified at length about her

embezzlement, and Hofstetter did not dispute

that she embezzled clinic funds. Second, the

embezzlement evidence was offered for two nonpropensity purposes: to support the charge that

Hofstetter intended to conspire with the Florida

partners, and to show that Hofstetter knew the

clinics were being operated illegally. Both are

permissible purposes under Rule 404(b). Fed. R.

Evid. 404(b)(2). Third, the probative value of the

evidence was not substantially outweighed by the

danger of unfair prejudice. For all these reasons,

we affirm the district court's decision to admit the

embezzlement evidence.

1. Michael Carter's Testimony

At trial, the government called Michael Carter as

an expert witness. Carter had been a nurse

practitioner for 45 years, and he held multiple

advanced degrees in nursing, including a Doctor

of Nursing Science. He testified about the

standard of care for nurse practitioners; how

nurses formulate diagnoses and _ develop

therapeutic plans;

[31 F.4th 427]

Tennessee legal requirements for nurse

practitioners prescribing drugs; and registered

nurses’ general knowledge of controlled substance

prescriptions. Carter also reviewed 90 patient

files from the clinics and assessed their adequacy

in terms of patient history, family history, medical

history, description of the medications

prescribed, and notes regarding examinations,

practitioners’ findings, treatment goals, and

follow-up.

Hofstetter moved to strike Carter's testimony,

arguing that he lacked expertise in pain

management and therefore could not assess

whether the prescriptions were issued _ for

legitimate medical purposes. The district court

denied the motion, concluding that Carter's

testimony was properly confined to his area of

expertise. The district court later evaluated the

same challenge again when it ruled on

Hofstetter's motion for judgment of acquittal.

Federal Rule of Evidence 702 governs the

admissibility of expert testimony and permits "[a]

witness who is qualified as an expert by

knowledge, skill, experience, training, or

education [to] testify in the form of an opinion or

otherwise[.]" Fed. R. Evid. 702. Rule 702 "should

be broadly interpreted on the basis of whether the

use of expert testimony will assist the trier of

fact." United States v. L.E. Cooke Co. , 991 F.2d

296, 241 (6th Cir. 1993). We apply a four-prong

test to determine the admissibility of expert

testimony: "(1) a qualified expert (2) testifying on

a proper subject (3) which is in conformity to a

generally accepted explanatory theory (4) the

probative value of which outweighs its prejudicial

effect." Id. (quoting Sterling v. Velsicol Chem.

Corp. , 855 F.2d 1188, 1208 (6th Cir. 1988) ). On

appeal, Hofstetter challenges only the first two

prongs—i.e., that Carter was not qualified and

that he testified on an improper subject—but she

does not identify an erroneous factual finding or

an improper use of legal standards.

Regarding the first prong, the district court

carefully analyzed Carter's qualifications and

concluded that Carter's five degrees in nursing

and his extensive clinical and_ professional

experience qualified him "to testify to the

standard of care for nurse practitioners across

specialties." (Order, R. 794, PageID 38776.) The

district court recognized that Carter did not

qualify as a pain-management expert.

Regarding the second prong, Hofstetter argues

Carter should not have been allowed to opine on

whether the prescriptions were issued for

legitimate medical purposes because such

testimony required pain-management expertise

that he did not have. The district court, however,

found that Carter did not testify to the ultimate

issue of whether there was a legitimate medical

purpose for the various prescriptions in the files

he reviewed. Instead, the district court concluded

that Carter testified about whether the content of

the files offered a basis for a_ legitimate

prescription:

While the government’ did

repeatedly ask the witness whether

there was a legitimate medical

purpose for prescriptions in certain

medical files, ... [t]he context of

these questions and _ responses

makes clear that the government

was not eliciting opinions from the

witness aS a pain management

expert, which he admittedly is not,

but rather asking him to testify to

whether he identify a

legitimate medical purpose for the

could

prescription based on the content of

the files. Each exchange took place

immediately after the government

took the witness through a specific

file and asked him questions about

the file's adherence to the standard

of care. Thus, by testifying that he

could not identify such a legitimate

purpose for the prescription,

[31 F.4th 428]

the witness was testifying to a

failure of the standard of care, i.e.,

an inadequate history, inadequate

physical, inadequate assessment

and an inadequate plan.

(Id. at PageID 38778—79 (internal modifications

omitted).)

The record supports the district court's

conclusion that Carter limited his assessments to

the content of the files and the extent to which the

files demonstrated that the clinics’ nurse

practitioners adhered to the standard of care,

which fell within his area of expertise.

Accordingly, Carter did not testify as a painmanagement expert, and the district court did not

abuse its discretion by refusing to strike his

testimony.

lt. Rebuttal Evidence

Hofstetter, along with the other defendants,

called two expert witnesses who also examined

fifteen patient files from the clinics. The defense's

expert witnesses concluded that the patients had

been prescribed opioids for legitimate medical

purposes. To rebut this testimony, the

government called four of the fifteen patients.

Hofstetter objected to this testimony before and

during trial, arguing that it did not constitute

rebuttal evidence, and she repeated her argument

when she moved for a new trial. The district court

ruled that the rebuttal witnesses’ testimony "fell

within the proper scope of rebuttal testimony”

because it “defused the impact of the opinion

testimony offered by defendants’ witnesses that

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the prescriptions those four (4) patients received

were prescribed for a legitimate medical

purpose and within the usual course of

professional practice." (Mem. Op. and Order, R.

951, PageID 70975.) Hofstetter alone now argues

that the patients were not proper rebuttal

witnesses.

"The proper function of rebuttal evidence is to

contradict, impeach or defuse the impact of the

evidence offered by an adverse party." United

States v. Levy , 904 F.2d 1026, 1031 (6th Cir.

1990) (quoting United States v. Papia , 560 F.2d

827, 848 (7th Cir. 1977) ). Hofstetter therefore

argues unpersuasively that the rebuttal witnesses

served an improper purpose. The defense's expert

witnesses testified that practitioners at the clinics

issued legitimate opioid prescriptions to at least

some patients. In rebuttal, the government called

four of those patients, all of whom testified that

they had been addicted to drugs when they went

to the clinics, that it was easy to obtain opioid

prescriptions at the clinics, and that they used the

prescriptions they received to fuel their

addictions. Because this rebuttal testimony casted

doubt on the legitimacy of the prescriptions and

the practitioners’ adherence to the standard of

care with respect to those specific patients, the

rebuttal witnesses defused the impact of the

defense's expert testimony and served a proper

function.

Hofstetter also contends that the rebuttal

witnesses were improper because the government

could have questioned them earlier in the trial.

But rebuttal testimony "is not limited by the fact

that the [government] could have introduced the

proffered evidence in [its] case-in-chief." United

States v. Caraway , 411 F.3d 679, 683 (6th Cir.

2005) ; see also United States v. Bland , No. 06-

5876, 2007 WL 2781114, at *3 (6th Cir. Sept. 25,

2007). The timing of when these witnesses were

called is therefore irrelevant. For these reasons,

Hofstetter has failed to show that the district

court abused its broad discretion in permitting

the government's rebuttal witnesses to testify.

In sum, the district court did not abuse its

discretion when it admitted evidence about

Hofstetter's unindicted embezzlement,

[31 F.4th 429]

declined to strike Carter's assessments of the

patient files, and permitted the government's

rebuttal witnesses. We affirm each of the district

court's contested evidentiary rulings as to

Hofstetter. See Levy , 904 F.2d at 1031.

E. The Fairness of Hofstetter's Trial

Hofstetter alleges that the government violated

her constitutional right to a fair trial for three

reasons: (1) the government destroyed patient

files seized during the 2010 investigation of the

Hollywood clinic; (2) the government breached its

Brady obligations by failing to disclose

information about a criminal investigation of

Walmart; and (3) the government committed

prejudicial prosecutorial misconduct during

closing arguments by making comments that

impermissibly shifted the burden of proof to

Hofstetter. We consider each argument in turn.

1. Spoliation

We review the district court's conclusions of law

de novo. United States v. Cody , 498 F.3d 582,

586 (6th Cir. 2007). When the district court's

conclusion is based on spoliation, "[t]he district

court's factual determinations giving rise to the

spoliation finding are reviewed for clear error."

Byrd v. Alpha Alliance Ins. Corp. , 518 F. App'x

380, 383 (6th Cir. 2013) (citing Adkins v.

Wolever , 692 F.3d 499, 506 (6th Cir. 2012) ).

"The evidence must be considered in the light

most favorable to the party that prevailed in the

court below ...." United States v. Garrido , 467

F.3d 971, 977 (6th Cir. 2006).

In December 2010, the DEA seized about 1,900

patient files at the Hollywood clinic pursuant to a

search warrant. The warrant and seizure followed

a year-long investigation of the clinic, which was

precipitated by signs of the clinic's illegal

practices and included undercover agents who

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posed as patients. After the seizure, the DEA

reviewed the files pertaining to the undercover

officers but did not review other patient files.

Ultimately, the case was not prosecuted due to an

overwhelming caseload at the U.S. Attorney's

Office. Pursuant to a Florida medical board

requirement, the DEA destroyed the patient files

after five years.

Meanwhile, the FBI's investigation into the

Tennessee clinics was underway. A detective

involved in the FBI investigation became aware of

the DEA's 2010 Hollywood clinic investigation

and reached out to the DEA to obtain the files in

late 2015. The FBI detective and the DEA agent

discussed transferring the 2010 Hollywood files to

the FBI, but the DEA agent never did so. The

agent stopped responding to the FBI detective's

inquiries about the files, first because of her

involvement with an _ out-of-state murder

investigation, and then because of the unexpected

death of her husband. The agent then left the DEA

without telling the detective, and the DEA agent

who inherited the case destroyed the files

according to Florida law.

Hofstetter sought to suppress all evidence of the

treatment of patients at the Hollywood clinic

associated with the patients’ files that were seized

by the DEA. Alternatively, Hofstetter asked the

district court to instruct the jury that the files

would have been exculpatory for her and

unfavorable to the government. A magistrate

judge held an_ evidentiary hearing and

recommended denying the motion, and the

district court adopted the magistrate's

recommendation. Later, Hofstetter asked the

district court to enter a judgment of acquittal or

grant a new trial based on spoliation, which the

district court also denied. On appeal, Hofstetter

once again argues that her due process rights

were violated due to spoliation.

[31 F.4th 430]

The Due Process Clause of the Fourteenth

Amendment requires criminal prosecutions to

"comport with prevailing notions of fundamental

fairness." California v. Trombetta , 467 U.S. 479,

485, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984).

Fairness requires "that criminal defendants be

afforded a meaningful opportunity to present a

complete defense." Jd. For this reason, the

prosecution must deliver "exculpatory evidence

into the hands of the accused[.]" Jd. Under Brady

v. Maryland , 373 U.S. 83, 87, 83 S.Ct. 1194, 10

L.Ed.2d 215 (1963), a defendant's due process

rights are violated when material exculpatory

evidence is suppressed, regardless of whether the

suppression results from good or bad faith.

United States v. Jobson , 102 F.3d 214, 218 (6th

Cir. 1996). But when the government "fails to

preserve evidence whose exculpatory value is

indeterminate and only ‘potentially useful’ to [a]

defendant, we apply a different test." Jd. (internal

quotation omitted). Potentially useful evidence is

that "of which no more can be said than that it

could have been subjected to tests, the results of

which might have exonerated the defendant."

Arizona v. Youngblood , 488 U.S. 51, 57, 109 S.Ct.

333, 102 L.Ed.2d 281 (1988) (emphasis added). In

this scenario, a defendant must establish three

elements: (1) that the government acted in bad

faith when it failed to preserve the evidence; (2)

that the exculpatory value of the evidence was

apparent before it was destroyed; and (3) that the

defendant would not be able to obtain comparable

evidence by other reasonable means. Jobson , 102

F.3d at 218 (citing Youngblood , 488 U.S. at 57—-

58, 109 S.Ct. 333 ).

Here, the Hollywood clinic patient files were

never reviewed, so there was no evidence that

they were materially exculpatory. Because the

files were only potentially useful, we proceed to

the Youngblood test.

The first two elements are inter-related because

the "presence or absence of bad faith by the

[government] for purposes of the Due Process

Clause must necessarily turn on_ the

[government's] knowledge of the exculpatory

value of the evidence at the time it was lost or

destroyed." Id. (quoting Youngblood , 488 USS. at

56-57 n.*, 109 S.Ct. 333 ). To establish bad faith,

Hofstetter must show “official animus" or a

"conscious effort to suppress exculpatory

evidence.” Id. (internal quotation omitted). But

neither the DEA nor the U.S. Attorney's Office

reviewed the content of the files before they were

destroyed, and there is no evidence that the

government suspected the files were exculpatory.

Furthermore, the files were destroyed as part of a

standard, state-mandated file closure process, so

there is no suggestion of animus.

Hofstetter also had other reasonable means to

obtain comparable evidence after the 2010

Hollywood files were destroyed. She had access to

substantively similar patient files from the

Hollywood clinic for the time period of December

2010 to December 2015, and she could have used

them to argue that the patients at the Hollywood

clinics received legitimate prescriptions for

controlled substances. See Kordenbrock v.

Scroggy , 919 F.2d 1091, 1103 (6th Cir. 1990) (en

banc). Hofstetter has not established any of the

Youngblood elements, nor has she shown any

error in the factual findings of the district court.

The district court was therefore correct in

declining to acquit Hofstetter or grant a new trial

based on spoliation.

wu. Brady Obligations

"We review denials of a motion for a new trial

based on Brady violations for abuse of discretion,

but assess the existence of a Brady violation de

novo."

[31 F.4th 431]

United States v. Fields , 763 F.3d 443, 458 (6th

Cir. 2014).

The government called Stan Jones as an expert

witness to testify based on his experience

investigating pill mills for the DEA. At trial, Jones

testified about the customs and red flags of pill

mills, prescribing practices of nurse practitioners

at pill mills, characteristics of patient charts at pill

mills, and DEA regulations pertaining to pill

mills. Jones retired from the DEA and began

working at Walmart as a Global Investigator in

November 2018. He remained in that position at

the time of his testimony.

After trial, Hofstetter presented an article by

ProPublica—an investigative journalism

publication—which reported that Walmart was

the subject of a Department of Justice

investigation for its past opioid dispensing

practices. Hofstetter then moved for a judgment

of acquittal, arguing in part that the government

violated her due process rights by failing to

disclose the Walmart investigation per its Brady

obligations. Specifically, Hofstetter argued that

she could have used the information to impeach

Jones's testimony. The district court denied her

request, finding that it was "unclear how an

investigation of practices [at Walmart] that likely

predated [Jones's] arrival ... could have been used

to impeach him, especially because [he] testified

based on his experience not as a Walmart

employee but as a DEA agent[.]" (Mem. Op. and

Order, R. 951, PageID 70964—-66.) On appeal,

Hofstetter repeats her Walmart argument

verbatim.

Brady requires the government to turn over

evidence to a defendant if it is "both favorable to

the accused and material to guilt or punishment."

Owens v. Guida , 549 F.3d 399, 415 (6th Cir.

2008). To determine whether the government

violated its Brady obligation, we look to three

elements: (1) the challenged evidence must favor

the defendant, "either because it is exculpatory, or

because it is impeaching"; (2) the government

must have suppressed the evidence, "either

willfully or inadvertently"; and (3) the defendant

must have incurred prejudice. Strickler v. Greene

, 527 US. 263, 281-82, 119 S.Ct. 1936, 144

L.Ed.2d 286 (1999). To establish prejudice,

Hofstetter must show "the nondisclosure was so

serious that there is a reasonable probability that

the suppressed evidence would have produced a

different verdict." /d. at 281, 289, 119 S.Ct. 1936.

Here, a Brady violation did not occur. First, there

is no evidence demonstrating that the

information about Walmart would impeach

Jones. Nothing indicates that Jones worked at

Walmart while the company engaged in allegedly

criminal distribution practices, and Jones did not

testify based on his experience at Walmart.

Second, there is no evidence that the government

had access to the information about Walmart and

suppressed it. See United States v. Graham , 484

F.3d 413, 417 (6th Cir. 2007) (noting that the

government has a duty to "disclose material

evidence that is favorable to the defendant over

which the prosecution team has control"). Third,

even if the Walmart information had some

impeachment value and the government had

suppressed this evidence, Hofstetter cannot show

that the nondisclosure would have produced a

different verdict. Additionally, because other

articles on the Walmart investigation predated

the ProPublica article and were available to

Hofstetter at the time of trial, she cannot establish

prejudice. Finding that no element of the Brady

test has been satisfied, we affirm the district

court.

it. Closing Remarks

"Whether statements made by a _ prosecutor

amount to misconduct and whether such

statements render a trial

[31 F.4th 432]

fundamentally unfair are mixed questions of law

and fact," and we review them de novo. United

States v. Carson , 560 F.3d 566, 574 (6th Cir.

2009).

After trial, Hofstetter challenged three statements

made during closing arguments, contending that

each impermissibly attempted to shift the burden

of proof. The first pertains to a comment the

government made during closing when it

summarized the testimony of two witnesses—kKim

Chambers and Gayle Fristoe—both of whom had

briefly worked at the clinics:

I want you to think about the raw

emotion you saw, especially from

Ms. Fristoe[,] when they talked

about working at these places years

after the fact. Especially with Ms.

Fristoe, you could tell she still felt

that emotion from being even a

small part in perpetuating these

places. Guilt that you've never heard

about from these three defendants.

We discussed decisions and choices.

Ms. Chambers, five shifts, Ms.

Fristoe, 24 shifts, Ms. Newman, five

and a half months, Ms. Womack, 11

months, three of which she had her

DEA license, Cynthia Clemons, 16

months.

(Trial Tr., R. 885, PageID 60813.) Hofstetter

claims that the phrase, "guilt you never heard

about from these three defendants” violated the

rule that defendants are not obligated to present

evidence or prove their innocence. (Hofstetter Br.

24 (original emphasis modified).)

Second, during Hofstetter’'s closing argument,

defense counsel made a series of assertions about

an individual who did not testify, including: "She

is an investigator. She's a nurse by profession. ...

[S]he works for the Department of Health. ... If

there's been a complaint, she goes and checks the

complaint out.” (Trial Tr., R. 885, PageID 60961-

62.) The government objected to these statements

because they were not supported by evidence in

the record, emphasizing that the defense had

"subpoena power" but "did not subpoena” the

individual about whom they were speaking. (Id. at

PageID 60962.) Hofstetter argued the subpoena

statement "was a direct effort to shift the burden"

by suggesting that Hofstetter "had an obligation

to subpoena and call a witness in the case."

(Hofstetter Br. 24-25.)

Third, during the government's _ rebuttal

argument, the prosecutor told the jury:

Remember, as we get into this, that

every single fact witness you heard

of, like they put up two opinion

witnesses and an investigator to talk

about some stats, every fact witness,

every person who saw something,

smelled something, felt something,

did something, heard something,

someone who was there, somebody

with knowledge, those—every single

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one of those witnesses was put on by

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(Trial Tr., R. 897, PageID 61704.) Hofstetter

argues that this statement "is a clear comment on

the fact that the defendants did not call a fact

witness|.|" (Hofstetter Br. 25.)

"[A] prosecutor is entitled to comment on a

defendant's failure to call witnesses to contradict

the government's case," but “must avoid

commenting in such a way that he treads on the

defendant's constitutional rights and privileges,"

such as the right not to testify. United States v.

Clark , 982 F.2d 965, 968 (6th Cir. 1993). To

evaluate whether a _ prosecutor's comments

constitute misconduct, we use a two-step test.

Carson , 560 F.3d at 574. We first determine

whether the statements were improper. Id. If the

statements were improper, we then consider

whether they were flagrant and warrant reversal.

Id. Flagrancy is assessed through four factors: "(1)

whether the conduct and remarks of the

prosecutor tended to mislead

[31 F.4th 433]

the jury or prejudice the defendant; (2) whether

the conduct or remarks were isolated or

extensive; (3) whether the remarks were

deliberately or accidentally made; and (4)

whether the evidence against the defendant was

strong." Jd. (quoting United States v. Carter , 236

F.3d 777, 783 (6th Cir. 2001) ).

Taking the third statement first, the government's

rebuttal statement was not improper. The

government may comment on a defendant's

failure to rebut evidence, so long as a rebuttal

witness was available, and the prosecutor does

not comment "implicitly or explicitly on the

defendant's failure to testify." Moore v. Mitchell ,

708 F.3d 760, 806 (6th Cir. 2013). This is

especially true when the government responds to

a defense assertion that "open|[s| the door to [the]

rebuttal." United States v. Wimbley , 553 F.3d

455, 461 (6th Cir. 2009) (citation omitted). And

this is exactly what happened here—the

government responded to the _ defense's

suggestion that the government obfuscated

certain aspects of the evidence by highlighting the

number of its fact witnesses. The rebuttal

comment therefore had a proper purpose and did

not impugn Hofstetter's decision not to testify.

The second statement at issue was also proper.

The government was entitled to object to the

defense's closing remark because it was not

supported by evidence in the record. To

emphasize that point, the government stressed

that the defense could not speculate about a

witness it chose not to call, but it did not shift the

burden to Hofstetter to call witnesses in her

defense.

Finally, the first statement does not constitute

prosecutorial misconduct. For starters, the

statement referred to "these three defendants"—

meaning Clemons, Newman, and Womack, but

not Hofstetter. (See Trial Tr., R. 885, PageID

60813.) Even assuming that the statement

somehow implicitly suggested that Hofstetter

failed to testify, the statement was not flagrant.

The source of any impropriety stems from a single

word—"from"—that the prosecutor used. Had the

prosecutor said, "[g]uilt that you've never heard

about regarding these three defendants,” the

statement would have been proper. See Wimbley ,

553 F.3d at 461. Relative to the extensive evidence

put forth over the course of a four-month trial,

this isolated word cannot alone mislead the jury

or prejudice Hofstetter. Likewise, nothing in the

trial transcript indicates that the government

deliberately made the statement improperly. For

all these reasons, we find that no prosecutorial

misconduct occurred.

Finding that Hofstetter's constitutional right to a

fair trial was not violated, we decline to order a

new trial on this basis and affirm the district

court.

F. The Consistency of the Jury's Verdict

Hofstetter, Clemons, and Newman were each

convicted of at least one count of maintaining a

drug-involved premises. Clemons and Newman

were acquitted of distributing controlled

substances, and Hofstetter was acquitted of two

counts of this offense but convicted of one.

Clemons and Newman were also acquitted of

conspiring to distribute controlled substances.

Hofstetter, Clemons, and Newman argue that

they are entitled to a new trial because the jury's

verdicts as to these counts are "so inconsistent

that they are arbitrary and irrational[.]" (Clemons

Br. 48; accord Newman Br. 32-35.)

Generally, we do not review allegedly inconsistent

verdicts in criminal cases. United States v.

Randolph , 794 F.3d 602, 610 (6th Cir. 2015).

This is because the Supreme Court has held that a

jury

[31 F.4th 434]

may “announce logically inconsistent verdicts in a

criminal case." United States v. Clemmer , 918

F.2d 570, 573 (6th Cir. 1990). Juries are

permitted "to acquit out of compassion or

compromise or because of ... lenity." United

States v. Lawrence , 555 F.3d 254, 262 (6th Cir.

2009) (internal quotations omitted). Accordingly,

an inconsistent verdict is as likely to result from

the jury's error in acquitting a defendant of one

offense as it is from the jury's error in convicting

her of another. Id. at 261-62 (citation omitted).

Put differently, when an inconsistent verdict

occurs, “it is unclear whose ox has been gored."

United States v. Powell , 469 U.S. 57, 65, 105 S.Ct.

471, 83 L.Ed.2d 461 (1984). And because the

government "is precluded from challenging the

acquittal, it is hardly satisfactory to allow the

defendant to receive a new trial on the conviction

as a matter of course." Jd. Rather, the defendant's

protection derives from "independent review of

the sufficiency of the evidence undertaken by the

trial and appellate courts." Id. at 67, 105 S.Ct. 471.

There are two exceptions to this general rule. We

may review an inconsistent verdict only when: (1)

the verdict is "marked by such inconsistency as to

indicate arbitrariness or irrationality," or (2) "a

guilty verdict on one count necessarily excludes a

finding of guilt on another." Randolph , 794 F.3d

at 610-11 (internal quotations omitted). The

defendants’ arguments do not implicate this latter

exception, which only applies when a defendant is

convicted of two "logically inconsistent" crimes.

United States v. Smith , 749 F.3d 465, 498 (6th

Cir. 2014) (quoting United States v. Ruiz , 386 F.

App’x 530, 533 (6th Cir. 2010) ); see also Powell ,

469 U.S. at 69 n.8, 105 S.Ct. 471. And, as we

explain below, the first exception is not satisfied

because the verdict is not arbitrary or irrational.

i. The Drug-Involved Premises Conviction and

Conspiracy Acquittals

By convicting the defendants under § 856(a)(1),

the jury must have found that they each

"knowingly open[ed], lease[d], rent[ed], use[d],

or maintain[ed] .... whether permanently or

temporarily," at least one clinic for the purpose of

illegally distributing controlled substances.

Elenniss , 729 F. App'x at 428 (alterations in

original). To find Clemons and Newman guilty of

conspiring to distribute controlled substances

unlawfully, the jury would have needed to find

they "agreed to violate a drug law (such as §

841(a)(1) ’s ban on distributing drugs) and that

[they] knowingly and voluntarily entered into this

agreement." Wheat , 988 F.3d at 306. What then,

explains the jury's acquittal on the conspiracy

counts? The jury could have found that the

government proved beyond a reasonable doubt

that the defendants used the clinics for unlawful

drug distribution, but not that they knowingly

entered an agreement to violate a drug law. Such

a finding is internally consistent.

This logic applies even if the jury convicted

Clemons, Newman, and Womack of maintaining a

drug-involved premises under an aiding and

abetting theory. If the jury found the defendants

guilty of aiding and abetting the maintenance of a

drug-involved premises, it would have concluded

that they took "an affirmative act in furtherance of

th[e] offense" and intended to facilitate the

offense's commission. Rosemond , 572 U.S. at 71,

134 S.Ct. 1240. Aiding and abetting does not

"presuppose the existence of an agreement."

United States v. McCullah , 745 F.2d 350, 355

(6th Cir. 1984) (quoting Pereira v. United States ,

347 U.S. 1, 11, 74 S.Ct. 358, 98 L.Ed. 435 (1954) ).

Instead, aiding and abetting "have a broader

application, making

[31 F.4th 435]

the defendant a principal when he consciously

shares in a criminal act, regardless of the

existence of a conspiracy.” Id. (citation omitted).

In other words, "[c]lonspiring to commit a crime

with another and aiding and abetting in its

substantive commission are distinct crimes."

United States v. Holmes , 797 F. App'x 912, 918

(6th Cir. 2019) (quoting United States v. Townes ,

512 F.2d 1057, 1058 (6th Cir. 1975) ). Conspiracy

requires an agreement; aiding and abetting does

not.

The different elements of these two distinct

offenses demonstrate that it was not arbitrary or

irrational for the jury to convict Clemons,

Newman, and Womack of maintaining a druginvolved premises while — simultaneously

acquitting them of conspiring to distribute

controlled substances.

uw. The Drug-Involved Premises Conviction and

Distribution Acquittals

The same is true regarding the jury's acquittal of

Clemons and Newman on the substantive

distribution charges. The distribution counts

alleged that Clemons, Womack, and Hofstetter

illegally distributed controlled substances on

specific occasions: on or about November 14,

2013, on or about February 10, 2014, and on or

about September 8, 2014. The jury found that the

government met its burden of proof only as to

Hofstetter and the November 14, 2013

occurrence. Acquitting Clemons and Womack of

their charges means that the jury determined the

government did not prove that they had

distributed controlled substances illegally (or

aided and abetted someone who did) on those

specific dates. This outcome is not per se

inconsistent with the maintaining-a-druginvolved premises convictions. The jury may have

concluded that Clemons and Womack illegally

distributed controlled substances on dates other

than those listed in the indictment. Alternatively,

the jury may also have concluded that Clemons

and Womack aided and abetted the use of the

clinics for the purpose of distributing controlled

substances—i.e., they took an affirmative step to

further the offense—but that they did not illegally

distribute the prescriptions themselves. These

possibilities demonstrate that the jury's verdict

does not warrant appellate review.

uu. Hofstetter's Conviction and Newman's

Acquittal of Illegal Distribution

Finally, Hofstetter alone argues that it was

internally inconsistent for the jury to convict her

and simultaneously acquit Newman of the same

count of aiding and abetting the distribution of

controlled substances. She claims that her guilt

depends on Newman's guilt because they were

both charged with aiding and abetting each other.

The relevant count of the indictment alleges the

following: "[O]n or about November 14, 2012 ...

SYLVIA HOFSTETTER and COURTNEY

NEWMAN, and others , aided and abetted by one

another" knowingly’ distributed controlled

substances unlawfully. (Fourth Superseding

Indictment, R. 320, PageID 5235 (emphasis

added).) Similarly, the jury concluded that

"defendants Hofstetter and Newman, aided and

abetted by one another and others " knowingly

did the same. (Jury Verdict, R. 860, PageID

60531 (emphasis added).) Based on this language,

the jury could have decided that the government

submitted sufficient evidence to show that

Hofstetter aided and abetted some other nurse

practitioner in issuing an illegal prescription—

either alone or with other staff members or the

Florida partners—but that the government did

not produce enough evidence to prove beyond a

reasonable

[31 F.4th 436]

doubt that Newman was involved. Accordingly,

the verdict is not irrational.

Admittedly, the evidence presented in this case

suggests that the outcome on this count 1s

somewhat inconsistent. But we may not review a

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claim of inconsistent verdicts between

codefendants on appeal. See United States v. Ross

, 703 F.3d 856, 883 (6th Cir. 2012) (declining to

review the jury's decision to acquit one coconspirator, but not the other). "[A]ll we know is

that the verdicts are inconsistent"—we do not

know whether the jury "really meant" to acquit or

convict. Powell , 469 U.S. at 68, 105 S.Ct. 471. For

this reason, Hofstetter must rely on sufficiencyof-the-evidence review to overturn her conviction,

and we have already concluded that the record

supports the jury's verdict. Having been "found

guilty beyond a reasonable doubt after a fair trial,

[Hofstetter] has no constitutional ground to

complain that [Newman] was acquitted.” See

Randolph , 794 F.3d at 610 (quoting Harris v.

Rivera , 454 U.S. 339, 348, 102 S.Ct. 460, 70

L.Ed.2d 530 (1981) ).

In sum, the jury's decision to acquit Clemons,

Newman, and Womack of conspiracy and the

substantive drug offenses is not inconsistent with

the jury's decision to convict them of maintaining

a drug-involved premises. And the jury's decision

to convict Hofstetter and acquit Newman of

aiding and abetting the issuance of the same

unlawful prescription is not reviewable.

III. CONCLUSION

For the reasons articulated above, we affirm the

district court on all issues.

Notes:

i This clinic was initially located on Gallaher View

Road. Hofstetter and Tipton moved it to Lovell

Road in 2013, but the procedures, staff, and

patients were the same at both locations. We refer

to this clinic as the "Lovell Road clinic” to avoid

confusion with the first clinic on Gallaher View

Road.

2 The government indicted 130 defendants in this

case, including the Florida partners, Tipton, and

other clinic staff. Except for Hofstetter, Clemons,

Newman, and Womack, all other defendants

pleaded guilty for their roles in operating or

benefitting from the clinics.

4 Womack contends that two recent Supreme

Court decisions demonstrate that "merely

tracking the language of the statute may not

suffice to properly instruct a jury as to what they

must find for guilt." (Womack Br. 24 (citing

Rehaif v. United States , --- U.S. --——, 139 S.

Ct. 2191, 2199, 204 L.Ed.2d 594 (2019), and

Maslenjak v. United States , --— U.S. ----, 137

5. Ct. 1918, 1930, 198 L.Ed.2d 460 (2017).) These

cases, however, contain inapposite facts and do

not bear on the instructions at issue here.

+ Newman disputes that the trial record supports

an inference of her involvement in this scheme.

Specifically, she highlights Puckett's recrossexamination testimony as demonstrating that

Newman was not involved. Newman's argument,

however, distorts the scope of the recrossexamination, and a reasonable jury could have

viewed Puckett’'s testimony as_ implicating

Newman.

5 Our precedent reflects an intra-circuit split

about the appropriate standard of review when

reviewing evidentiary rulings under Rule 404(b).

Compare Clay , 667 F.3d at 694 (using de novo

review because determining "whether the

evidence was admitted for a proper 404(b)

purpose ... is a question of law"), with United

States v. Jenkins , 345 F.3d 928, 936 (6th Cir.

2003) (reviewing for abuse of discretion).

Because Hofstetter's claim fails under the less

deferential de novo review, we need nod decide

which standard of review should apply to Rule

404(b) challenges.