Petition for Writ of Certiorari — Mark Murphy and Jennifer Murphy, Petitioners v. United States

APPENDIX

TABLE OF CONTENTS

APPENDIX A:

Eleventh Circuit Court of Appeals

Opinion (Nov. 21, 2024) .................. 1a

APPENDIX B:

District Court Decision

(Feb. 17, 2023) ............................... 36a

APPENDIX C:

Eleventh Circuit Court of Appeals

Order Denying Rehearing and

Rehearing En Banc

(Mar. 17, 2025) ............................... 68a

APPENDIX D:

Amended Judgment in a Criminal

Case for Mark Murphy

(Mar. 8, 2023) ................................. 69a

APPENDIX E:

Amended Judgment in a Criminal

Case for Jennifer Murphy

(Mar. 8, 2023) ................................. 79a

APPENDIX F:

21 U.S.C. § 841 .............................. 89a

APPENDIX G:

21 U.S.C. § 846 ............................ 106a

APPENDIX H:

21 C.F.R. § 1306.04 ..................... 107a

APPENDIX I:

Jury Instructions

(Feb. 25, 2022) ............................. 109a

APPENDIX A

[FILED: NOVEMBER 21, 2024]

[DO NOT PUBLISH]

IN THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 23-10781

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARK MURPHY,

JENNIFER MURPHY,

Defendants-Appellants.

Appeals from the United States District Court

For the Northern District of Alabama

D.C. Docket No. 5:20-cr-00291-LSC-SGC-1

Before JORDAN, NEWSOM, and BRASHER, Circuit Judges.

BRASHER, Circuit Judge:

This criminal appeal involves two codefendants—Dr.

Mark Murphy and his wife Jennifer Murphy—who

operated a pain management clinic in Alabama. After a

jury convicted the Murphys of drug conspiracy and

healthcare fraud among other crimes, the Murphys were

each sentenced to twenty years in prison. Both challenge

their convictions on appeal, arguing among other things

that the evidence underlying their convictions was

insufficient, that the court gave an erroneous jury

(1a)

2a

instruction on their drug conspiracy charge, and that the

court violated their constitutional right to present a

defense when it excluded testimony of Dr. Murphy’s good

care for some of his patients. Separately, Mrs. Murphy

argues that the court abused its discretion by denying her

motion for a mistrial after a witness provided testimony

the court later instructed the jury to disregard. Dr.

Murphy also challenges his sentence, arguing that the

district court improperly calculated drug weight and loss

amount, and that his sentence was substantively

unreasonable. We reject all their arguments and affirm.

I.

A.

We begin with the facts. Dr. Murphy was a licensed

physician specializing in pain management. He and Mrs.

Murphy, his business partner, operated a pain

management clinic called North Alabama Pain Services.

NAPS had two locations in Alabama—one in Decatur and

the other in Madison. Despite the practice’s large patient

population, Dr. Murphy was the only doctor on staff. Often, though not always, NAPS employed a nurse

practitioner or physician’s assistant to work as a physician

extender. As one extender testified, she and Dr. Murphy

would work opposite one another—one would go to

Madison one day while the other went to Decatur, and vice

versa.

NAPS patients suffered from chronic pain issues. To

manage their pain, patients sought prescriptions for

opioids, including hydrocodone, oxycodone, fentanyl, and

morphine. Doctors testified at trial that opioid use can

cause addiction, overdose, and death. Accordingly, only

medical providers registered with the Drug Enforcement

Administration can prescribe drugs like oxycodone or

hydrocodone. To mitigate the risks of opioid use,

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prescribing physicians conduct risk-benefit analyses. For

instance, an expert testified that doctors should consider

whether the patient has a history of alcohol or drug

dependence. Another physician explained that they

should conduct a physical examination of the patient,

review medical records, and create a treatment plan. And

doctors use prescription monitoring programs to ensure

patients are not “doctor shopping” and receiving

medications elsewhere. After prescribing opioids, doctors

often conduct drug tests; if those tests reveal that a

patient failed to take the prescribed medication or is

taking other drugs—all possible signs of drug abuse,

misuse, or diversion—a doctor “better do something

about it,” testified one physician. And, an expert

acknowledged, patients receiving steadily increasing

amounts of medication should have regular office visits,

including with a physician, physician assistant, or nurse

practitioner—not only a nurse.

Dr. Murphy’s practice was very busy. NAPS patients

had an office visit every twenty-eight days to obtain their

opioid prescriptions. The Decatur office saw about eighty

to one hundred patients a day—and the Madison office, at

least another fifty. In total, NAPS scheduled about two

thousand patients a month for office visits. The clinics

were so full of patients that there “wasn’t a seat to be had”

in the waiting room, and about twenty patients had to

stand or wait outside. Sometimes, when exam rooms were

full, a nurse conducted visits in the hallway or kitchen.

NAPS patients followed a standard routine to

continue their prescriptions. They took a drug test at each

visit. Regardless of the results of the in-house drug test,

Dr. Murphy had standing orders that patients also do a

comprehensive urine test, which was conducted in the

NAPS clinic by an outside lab. Dr. Murphy required this

extra test each visit, but insurers told him it should be

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“reserved for the confirmation of results produced by the

simple screen.” Also, twice a year, NAPS patients

underwent a nerve conduction test by a company called

QBR. QBR paid the Murphys $120 for every test that

insurance covered. And that was often—QBR did more

tests for Dr. Murphy than for any other doctor. QBR

benefited too by using the highest-paying billing code,

which required testing thirteen or more nerves. Patients

complained about these painful tests, which Dr. Murphy

often did not discuss with them. But to get their

prescriptions, many patients had to complete these tests.

And even though insurers did not allow standing orders

for services like the urine and nerve tests, NAPS

continued to issue such orders.

On top of the tests, NAPS also doled out unnecessary

and expensive braces and medicated pain creams. Those

prescriptions were funneled through the urine collectors

who, though employed by an outside lab, did the Murphys’

bidding and at times provided them with free labor. While

the urine collectors obtained the urine samples, they

routinely told patients that the patients needed these

products and then filled out prescription orders presigned by Dr. Murphy. Mrs. Murphy told the collectors

and patients that Dr. Murphy wanted patients to get

those products in addition to their opioids. The Murphys

even gave the collectors stamped or pre-signed

prescription orders with four or five different signatures

so that the photocopying and pre-signing was not too

obvious. The collectors sent updated prescriptions for

patients every month, whiting out and changing the date

before sending in the same form, regardless of whether

the patient visited on the new date. So those expensive

creams came every month until patients contacted the

pharmacy to stop—which they regularly had to do. Some

patients told the pharmacies that they had not seen Dr.

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Murphy in years. Others received creams even after they

died.

There was a reason the Murphys significantly overprescribed braces and creams—money. Pharmaceutical

sales representatives for those products paid the urine

collectors a commission for each prescription the

collectors sent in. Mrs. Murphy told the sales

representatives which collectors to pay and how much.

And two of the collectors whom she told the

representatives to pay were her son and brother-in-law.

As Dr. Murphy admitted on the stand, sales

representatives seeking his business had paid his family

members.

Patients could go long stretches of time without

seeing Dr. Murphy because of the sheer volume of

patients and because Dr. Murphy went to only one clinic

a day. And because he often did not see patients at their

visits, Mrs. Murphy would bring home a stack of unsigned

prescriptions for Dr. Murphy to pre-sign—and he signed

them days or even weeks in advance of patient

appointments. For instance, Dr. Murphy signed a

prescription for an August visit even though the patient

did not attend that month’s visit—he had died in July.

Some patients complained about not seeing the doctor,

and “even if they did see him, they didn’t have time to

discuss whatever concerns because it was so quick.” Per

Dr. Murphy’s instructions, nurses began doing a process

they dubbed a “wave by.” As one nurse testified: “A wave

by is when there is not enough time to actually see the

patient. You were to bring them by the room Dr. Murphy

was in so he could wave at them.” Dr. Murphy also told his

staff to use his billing code as a default, even when he did

not see the patient, on the theory that he had reviewed

patient charts in advance. Insurance companies do not

allow that practice, witnesses testified—nurse or

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extender visits use a different billing number at a lower

rate. Even when Dr. Murphy was not physically present,

patient records included a boilerplate statement that he

was available but the “patient decline[d]” to see him.

Dr. Murphy ignored many patients’ red flags.

Physicians who reviewed patients’ medical files testified

that he ignored signs of abuse. For example, there were

indicators that some patients were abusing or selling their

drugs. One patient testified that he had flagged his prior

alcohol abuse on his intake form, but Dr. Murphy never

explained the dangers of mixing opioids and alcohol. The

patient admitted he was addicted to opioids while he was

a NAPS patient for several years, only overcoming that

addiction after the clinic closed. Nurses or physician

assistants tried to release patients for repeatedly failing

drug tests but were overruled by the Murphys. The

Murphys refused to release one patient who failed drug

tests because they had invested in the patient’s patent and

believed, as one witness stated, that the patent would “get

them rich.” At least one nurse left NAPS— for lowerpaying employment—due to the quantity of opioids that

NAPS was prescribing.

Dr. Murphy was NAPS’s sole doctor, but Mrs.

Murphy managed its day-to-day operations. She had “[a]ll

the authority” and “pretty much ran all aspects of the

office,” one witness stated. Witnesses further testified to

aspects of her leadership, including that it involved “a lot

of yelling” and “[a] lot of intimidation.” She screamed at

nurses and patients and would yell at a nurse to make Dr.

Murphy “move faster.” She referred to herself as the

“bitch that ran the office.” She made urine collectors clean

the bathroom as “punishment.” On top of her poor

management, Mrs. Murphy adopted concerning business

practices. She stuffed cash copays into her purse. She

asked an employee to deposit copay cash at Wells Fargo,

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where she held her personal accounts—and as bank

records revealed, those accounts saw regular cash

deposits totaling hundreds of thousands of dollars. She

asked a urine collector to put co-pay cash in a hidden bag

in a bathroom in her house. She told a sales representative

that he “couldn’t come into the office unless he brought

$300 Ruth[’]s Chris [Steak House]” gift cards for her

“every month.” And when she was angry with urine

collectors, she would not let sales representatives pay

them for the month.

Mrs. Murphy also ran a nonprofit organization, the

Crystal Murphy Enrichment Organization. Donations to

CMEO funded vacations for the Murphys’ friends and

family to places like Alaska, Israel, and Spain. As a urine

collector testified, Mrs. Murphy gave her thousands in

cash and told her to buy cashier’s checks payable to

CMEO. Mrs. Murphy instructed the collector that if law

enforcement asked about the checks, the collector was to

say that she bought them with her (instead of Mrs.

Murphy’s) own money. Sales representatives wishing to

do business with the Murphys were also expected to

donate large sums to CMEO. Mrs. Murphy would remind

the representatives to pay regular donations worth

several thousands of dollars a check. Some donations were

for amounts as large as $10,000 and $12,000. After the

Murphys began to be criminally investigated, Mrs.

Murphy asked a sales representative to sign a letter

stating that she had not pressured him to donate to

CMEO, which he refused to do because he “knew [he]

would be lying.”

The Murphys’ medical practice was massive in scope.

Out of more than a million practitioners nationwide, Dr.

Murphy was number one in dollars billed to Medicare for

lab tests. He billed Medicare tens of millions of dollars for

those tests and Blue Cross Blue Shield nearly $40 million

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for services referred to two labs. He billed insurers over a

million dollars for braces and over ten million for nerve

tests. For drugs he prescribed, insurers were billed more

than $160 million. As for the office visits, he billed insurers

millions of dollars under his code, even for visits when he

did not see the patient.

B.

A federal grand jury indicted the Murphys, along

with four codefendants. Two codefendants—the ones

involved in the lab tests and brace and cream fraud—

pleaded guilty to healthcare fraud conspiracy. Dr.

Murphy and Mrs. Murphy, along with their son and Dr.

Murphy’s brother (again, two of the urine collectors),

proceeded to trial. After an eight-day trial, the jury

convicted Dr. Murphy and Mrs. Murphy and acquitted the

son and brother.

Dr. Murphy and Mrs. Murphy were convicted on the

following charges: conspiring to unlawfully distribute

fentanyl, oxycodone, and hydrocodone, in violation of 21

U.S.C. § 846 (Count 1); conspiring to commit healthcare

fraud, in violation of 18 U.S.C. § 1349 (Count 5); five

counts of healthcare fraud, in violation of 18 U.S.C. § 1347

(Counts 6 to 10); conspiring to defraud the United States

by soliciting and receiving kickbacks, in violation of 18

U.S.C. § 371 (Count 11); and soliciting or receiving

kickbacks involving a federal healthcare program, in

violation of 42 U.S.C. § 1320a-7b(b)(1) and 18 U.S.C. § 2

(Count 22). Dr. Murphy was also convicted of a drug

distribution offense, in violation of 21 U.S.C. §§ 841(a)(1)

& (b)(1)(C) and 18 U.S.C. § 2 (Count 3), and Mrs. Murphy

was convicted of three counts of providing a false

statement to the Internal Revenue Service, in violation of

26 U.S.C. § 7206(1) (Counts 23 to 25).

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After being denied judgments of acquittal at trial, the

Murphys filed motions for a new trial. The district court

denied those motions too, but vacated Dr. Murphy’s

substantive drug conviction (Count 3) after our remand

decision in United States v. Ruan, 56 F.4th 1291 (11th Cir.

2023) (“Ruan III”).

Stacking the statutory maximums, the district court

found that the guidelines ranges were 1,140 months of

imprisonment for Dr. Murphy and 1,248 months for Mrs.

Murphy. The judge varied downward and sentenced both

to 240 months. Though Dr. Murphy objected to his

guidelines range at sentencing, challenging the drug

quantity and loss calculations, the district court overruled

his objections and stated it would have given the same

sentence “regardless of how the guidelines issues had

been resolved.” Both defendants timely appealed.

II.

The Murphys raise six issues on appeal. First, the

Murphys challenge the sufficiency of the evidence for

their convictions. Second, they argue that they are

entitled to a new trial because the district court gave the

wrong jury instruction on the Count 1 drug conspiracy

charge. Third, Mrs. Murphy argues that the district court

abused its discretion by denying her motion for a mistrial

after her tax return preparer offered testimony that the

court later struck and asked the jury to disregard.

Fourth, the Murphys argue that they are entitled to a new

trial because the district court violated their

constitutional right to present a defense when it excluded

evidence of Dr. Murphy providing good care to some

patients. Fifth, they argue that the court’s cumulative

error warrants a new trial. Finally, Dr. Murphy argues

that his sentence should be vacated because the district

court determined drug weight without a reliable basis and

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erroneously determined intended loss instead of actual

loss. We address each issue in turn.

A.

We start with the sufficiency of the evidence. We

review a challenge to the sufficiency of the evidence de

novo, construing the evidence, drawing reasonable

inferences therefrom, and making credibility choices, all

in favor of the jury’s verdict. See United States v. Laines,

69 F.4th 1221, 1229 (11th Cir. 2023), cert. denied, 144 S.

Ct. 2611 (2024); United States v. Taylor, 480 F.3d 1025,

1026 (11th Cir. 2007). There is sufficient evidence to

support a guilty verdict if “a reasonable trier of fact could

find that the evidence established guilt beyond a

reasonable doubt.” United States v. Maurya, 25 F.4th

829, 841 (11th Cir. 2022) (quotation marks omitted). That

test is the same “regardless of whether the evidence is

direct or circumstantial, and no distinction is to be made

between the weight given to either direct or

circumstantial evidence.” United States v. Albury, 782

F.3d 1285, 1293 (11th Cir. 2015) (quotation marks

omitted). Here, we consider each of the challenged

convictions, starting with drug conspiracy (Count 1).

1.

The Murphys first contend that the government

failed to present sufficient evidence that they conspired

together to unlawfully distribute controlled substances.

See 21 U.S.C. § 846 (conspiracy); id. § 841(a)(1) (unlawful

drug distribution). To establish a conspiracy to commit a

drug-related offense, “the government must prove

beyond a reasonable doubt that two or more persons

agreed to commit a drug-related offense, that the

defendant knew of the conspiracy, and that he agreed to

become a member.” United States v. Louis, 861 F.3d 1330,

1333 (11th Cir. 2017). The Murphys argue that here, there

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is not enough evidence that “two or more persons agreed”

to unlawfully distribute drugs. In their view, even if Dr.

Murphy knew his drug prescriptions were unauthorized,

the government failed to prove that Mrs. Murphy also

knew they were unauthorized and facilitated their

issuance. And without enough evidence of Mrs. Murphy’s

knowing participation, they argue, there was not enough

evidence of a conspiracy.

The Murphys are mistaken. A defendant’s knowing

participation in a conspiracy can be proven by

circumstantial evidence, “such as acts committed by the

defendant which furthered the purpose of the

conspiracy.” United States v. Bain, 736 F.2d 1480, 1485

(11th Cir. 1984). The government need not have proven

that the defendant knew “all of the details or participated

in every aspect of the conspiracy.” United States v.

Vernon, 723 F.3d 1234, 1273 (11th Cir. 2013) (quotation

marks omitted). Instead, it need only prove that the

defendant “knew of the essential nature of the

conspiracy.” United States v. Moran, 778 F.3d 942, 960

(11th Cir. 2015) (quotation marks omitted).

Here, there was sufficient evidence that Mrs. Murphy

and Dr. Murphy agreed to—or, put differently, knowingly

conspired to—distribute drugs in an unauthorized

manner. See Louis, 861 F.3d at 1333. Even if the

government did not list every specific prescription Mrs.

Murphy knew to be unauthorized, evidence amply

established that she knew of and facilitated the issuance

of unauthorized opioid prescriptions. She was the “billing

contact person” for insurance agencies, and Blue Cross

Blue Shield repeatedly alerted NAPS about the

concerning volume of opioid prescriptions. She brought

home stacks of prescriptions for Dr. Murphy to pre-sign.

She and Dr. Murphy overruled nurses’ attempts to

release patients who failed drug tests. A jury could

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reasonably conclude from this evidence that Mrs. Murphy

knowingly helped Dr. Murphy to issue unauthorized drug

prescriptions and thus that the two conspired to

unlawfully distribute drugs.

2.

The Murphys next challenge the sufficiency of the

evidence underlying their convictions for healthcare fraud

conspiracy under 18 U.S.C. § 1349 (Count 5); substantive

healthcare fraud under 18 U.S.C. § 1347 (Counts 6 to 10);

kickback conspiracy under 18 U.S.C. § 371 (Count 11); and

receiving a kickback, in violation of 42 U.S.C. § 1320a7b(b)(1) (Count 22).

A person commits healthcare fraud (Counts 6 to 10) if

“in connection with the delivery of or payment for health

care benefits, items, or services,” he “knowingly and

willfully” executes a scheme to “defraud any health care

benefit program” or to “obtain, by means of false or

fraudulent pretenses” any money or property owned by a

healthcare benefit program. 18 U.S.C. § 1347(a); United

States v. Grow, 977 F.3d 1310, 1321 (11th Cir. 2020).

Indeed, an element of healthcare fraud is that “the

defendant acted willfully and with intent to defraud.”

United States v. Scott, 61 F.4th 855, 864 (11th Cir. 2023).

To sustain a conviction for conspiracy to commit

healthcare fraud (Count 5), the evidence must establish

that: (1) the conspiracy existed; (2) the defendant knew of

the conspiracy; and (3) he or she knowingly and

voluntarily joined it. See 18 U.S.C. § 1349; United States

v. Gonzalez, 834 F.3d 1206, 1214 (11th Cir. 2016).

As for the kickback conviction (Count 22), it is

unlawful to “knowingly and willfully” solicit or receive a

kickback in return for (1) “referring” an individual to

someone “for the furnishing or arranging for the

furnishing of any item or service” paid for in part or whole

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under a federal healthcare program; or in return for (2)

“purchasing” or “ordering”—or arranging for or

recommending the purchasing or ordering of—any good,

service, or item partially or wholly paid for under a federal

healthcare program. 42 U.S.C. §§ 1320a-7b(b)(1)(A)–(B).

To sustain a conviction for conspiracy to receive

healthcare kickbacks (Count 11), see 18 U.S.C. § 371, the

evidence must establish that (1) a conspiracy existed, and

the defendant (2) knew about it and (3) with knowledge,

voluntarily joined it. United States v. Howard, 28 F.4th

180, 189 (11th Cir. 2022), cert. denied sub nom. Bramwell

v. United States, 143 S. Ct. 165 (2022).

Dr. Murphy’s only sufficiency challenge as to the

healthcare fraud and kickback convictions focuses on

their mens rea element. Specifically, he argues that the

government failed to establish his “fraudulent intent”

because the evidence was insufficient to prove that he did

not act in “good faith.” This argument falls flat, regardless of which conviction’s mens rea element we construe it

to challenge. For one, Dr. Murphy cites only his own trial

testimony to argue that he acted in good faith, but the jury

was “free to disbelieve” his testimony and even “consider

it as substantive evidence of [his] guilt.” United States v.

Rivera, 780 F.3d 1084, 1098 (11th Cir. 2015). Second, his

self-serving

testimony

cannot

overcome

the

overwhelming evidence of his criminal intent. As trial

testimony supported, Dr. Murphy gave standing orders to

do comprehensive urine tests and nerve tests, pre-signed

prescriptions as a matter of course, instructed urine

collectors to use his pre-signed orders to prescribe

unnecessary braces and creams, and directed his staff to

use improper billing codes. Insurers were then billed

millions for these services and products. And, in exchange

for prescribing unnecessary nerve tests, creams, and

braces, Dr. Murphy and his family received from QBR or

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sales representatives hefty commissions or vacationfunding donations to CMEO. A juror could reasonably

conclude from this evidence that Dr. Murphy “knowingly

and willfully” defrauded a healthcare benefit program and

“knowingly and willfully” received kickbacks. See 18

U.S.C. § 1347(a); 42 U.S.C. § 1320a-7b(b)(1). And a juror

could reasonably conclude that Dr. Murphy knew of and

knowingly joined a conspiracy to commit healthcare fraud

and to receive kickbacks. See 18 U.S.C. §§ 371, 1349;

Gonzalez, 834 F.3d at 1214; Howard, 28 F.4th at 189.

Mrs. Murphy’s sufficiency arguments fare no better.

Her appellate briefing gives no explanation for why the

evidence for her healthcare fraud and kickback

convictions was insufficient. Instead, it merely recites

some of the elements those convictions require. So her

perfunctory arguments as to these convictions are

forfeited. See Harner v. Soc. Sec. Admin., Comm’r, 38

F.4th 892, 899 (11th Cir. 2022) (“An appellant forfeits an

issue when she raises it in a perfunctory manner without

supporting arguments and authority” (quotation marks

omitted)); Fed. R. App. P. 28(a)(8)(A) (arguments in the

appellant’s brief “must contain . . . appellant’s contentions

and the reasons for them, with citations to the authorities

and parts of the record on which the appellant relies”

(emphasis added)).

3.

Mrs. Murphy also argues that the government failed

to present sufficient evidence to convict her of submitting

false tax returns (Counts 23 to 25) in violation of 26 U.S.C.

§ 7206(1).

To sustain a conviction under Section 7206(1), the

government must prove four elements: (1) the defendant

willfully made and subscribed to a tax return; (2) the

return contained or was verified by a written declaration

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that it was made under penalties of perjury; (3) the

defendant did not believe the return to be true as to every

material matter; and (4) the return was false as to a material matter. See 26 U.S.C. § 7206(1); United States v.

Clarke, 562 F.3d 1158, 1163 (11th Cir. 2009). Mrs. Murphy

argues that the evidence fell short on each element. She is

wrong.

We start with the first and second elements.

Sufficient evidence established that Mrs. Murphy (1)

willfully made and subscribed to a tax return (2)

containing a written declaration that it was made under

penalty of perjury. The perjury element is easily satisfied:

the Murphys’ as-filed tax returns for the 2013 to 2015 tax

years each contained an avowal that the return was filed

under the penalty of perjury. Mrs. Murphy argues,

however, that the evidence did not prove that she “made

and subscribed to” those returns because they contained

only asterisks in the signature location. But those

asterisks do not exonerate her. As an IRS agent testified,

taxpayers can use PINs to generate electronic signatures,

which then appear on tax returns as asterisks, and can

authorize a preparer to file those returns. Here, each of

her as-filed returns bore the name and signature of a

preparer, William Tapscott—who, as bank records

abundantly revealed, was the Murphys’ regular

accountant. Documents recovered from the clinic—which

Mrs. Murphy managed—further disclosed that she

authorized Tapscott to file her returns. Those recovered

documents included prepared but unsigned copies of tax

returns with figures largely identical to those in the asfiled returns. And they included official documents

entitled “IRS e-file Signature Authorization” that

authorized “Tapscott Accounting Service” to file Mrs.

Murphy’s tax documents. A juror could reasonably infer

from this evidence that Mrs. Murphy caused the 2013 to

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2015 tax returns to be filed by authorizing Tapscott to

submit them with her signature PIN.

The evidence was sufficient for the third and fourth

elements too—i.e., (3) that Mrs. Murphy knew her tax

returns contained materially false information and (4)

that they actually did. To fully report her personal income

on her tax returns, Mrs. Murphy needed to fully report

her NAPS partnership income, which “flow[ed] through

to” her personal income return. But the government

presented evidence that she materially understated her

NAPS partnership income by diverting substantial

amounts of such income—via cash deposits—into her

CMEO and personal accounts. As evidence revealed,

those accounts saw large and unexplained cash deposits.

Mrs. Murphy’s personal accounts alone saw over $52,000

in unexplained cash deposits in 2013, over $63,000 in 2014,

and over $82,000 in 2015. And in total, the cash deposits

on those accounts and the CMEO account added up to

about $750,000 for the 2013 to 2015 tax years. Mrs.

Murphy provided no explanation at trial as to where those

large cash sums came from, and a testifying IRS agent

who had reviewed the Murphys’ and NAPS’s bank

records could not identify a source of income other than

NAPS income either. Witnesses testified about Mrs.

Murphy’s suspicious handling of copay cash—she stuffed

that cash in her purse, asked urine collectors to hide the

cash in her house or use it to buy cashier’s checks payable

to CMEO, and even asked one collector to lie to law

enforcement about where the money for the cashier’s

checks came from. Because the cash deposits were not

reported as clinic income, they were not taxed as

partnership income on Mrs. Murphy’s tax filings. Given

the evidence of Mrs. Murphy diverting clinic partnership

income to other accounts via untaxed cash deposits, a

juror could reasonably conclude that she gave false

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information on her personal income returns (which, again,

hinged on her partnership income) and that she knew

those returns to be materially false. The evidence

underlying her tax fraud convictions is sufficient.

B.

The Murphys also argue that the jury instruction for

the drug conspiracy charge was erroneous under Ruan v.

United States, 597 U.S. 450 (2022) (“Ruan II”). But this

argument, as we explain below, is foreclosed by our

decision in Ruan III.

We review de novo whether a jury instruction

“misstated the law or misled the jury to the prejudice of

the objecting party.” United States v. Cochran, 683 F.3d

1314, 1319 (11th Cir. 2012). “Where the error is the

omission of an element of the crime we will reverse unless

it can be shown the error was harmless beyond a

reasonable doubt.” Ruan III, 56 F.4th at 1296.

In Ruan II, the Supreme Court decided what mens

rea the government needed to prove to convict a physician

for unlawful prescribing under 21 U.S.C. § 841(a). The

Court concluded that if a defendant was authorized to

prescribe a controlled substance (for instance, a doctor

defendant), the government must prove not only that the

doctor knew he was prescribing the drugs, but also that

he knew or intended that the prescription was

unauthorized. See Ruan II, 597 U.S. at 454–55, 457–61.

Here, the district court vacated Dr. Murphy’s substantive

drug distribution conviction (Count 3) under section 841,

on the grounds that the jury instruction behind that

conviction did not comply with Ruan II. The Murphys

argue that because the jury instructions for the section

841 substantive drug distribution charge were given in

error, the instruction for the Count 1 drug conspiracy

charge, see 21 U.S.C. § 846, was erroneous too.

18a

That logic is incorrect. Ruan III addressed this very

issue. There, we had to decide how Ruan II’s holding on

the mens rea needed for a substantive drug offense

applied to a conspiracy drug offense. Though we vacated

the defendants’ substantive drug convictions under

section 841, we held that there was no error in a section

846 drug conspiracy jury instruction nearly identical to

the one the district court used here. See Ruan III, 56

F.4th at 1298–99. Our explanation was simple: to find a

defendant guilty of conspiracy, “[t]he jury would need to

find that the defendant knew the illegal object of the

conspiracy.” Ruan III, 56 F.4th at 1299. And to find that

the defendant knew the “aim of [his] agreement was

illegal,” the jury had to find that he (1) knew he was

dispensing a controlled substance and (2) knew he was

doing so in an unauthorized manner. See id. “If the jury

concluded that the defendant did not know either of these

things, then they could not conclude the defendant knew

the illegal object of the conspiracy and could not vote to

convict.” Id.

Here, like in Ruan III, the district court instructed

the jury that to convict the Murphys on drug conspiracy,

the jury had to find that the Murphys agreed to

accomplish a shared “unlawful plan to dispense controlled

substances without a legitimate medical purpose or

outside the usual course of professional practice,” and that

they “knew the unlawful purpose of the plan and willfully

joined it.” Compare with Ruan III, 56 F.4th at 1299

(jurors instructed to convict under section 846 only if the

defendants agreed to accomplish “‘a shared unlawful plan

to distribute or dispense . . . the alleged controlled

substance or substances’” and “‘knew the unlawful

purpose of the plan and willfully joined it’”). Thus, like in

Ruan III, the jury had to find that the Murphys knew

their drug distribution plan was unlawful—and,

19a

necessarily, that they knew they were dispensing drugs in

an unauthorized manner. So applying Ruan III, we

conclude the district court’s instruction under section 846

conveyed the proper mens rea requirement to the jury.

The Murphys seem to concede that Ruan III runs

“contrary” to their arguments, but then to ask that we

abandon Ruan III altogether. To the extent they make

this invitation, we decline it. In United States v. Duldulao,

a defendant asked us to abandon Ruan III and pointed to

a Tenth Circuit decision holding “that a faulty § 841

instruction ‘infected’ each of the defendant’s convictions,

including the conspiracy conviction under § 846.” 87 F.4th

1239, 1253 (11th Cir. 2023) (quoting United States v.

Kahn, 58 F.4th 1308, 1311, 1322 (10th Cir. 2023)). But we

rejected the defendant’s request because “the Tenth

Circuit’s decision in Kahn does not deny our prior

precedent rule its force,” and “under our prior panel

precedent rule, Ruan III controls.” Duldulao, 87 F.4th at

1253. So too here.

Seeking to evade Ruan III, the Murphys attack the

drug conspiracy instruction’s use of the language “without

a legitimate medical purpose or outside the usual course

of professional practice.” Pointing to Ruan II, they argue

that a doctor could know his prescription lacked such a

purpose and was made outside the usual course of

professional practice, but still not know the prescription

was “unauthorized.” But Ruan II—which concerned

whether a doctor must know his prescription was

unauthorized, see 597 U.S. at 454–55—never redefined

“unauthorized.” To the contrary, it explicitly “assume[d]”

that “a prescription is ‘authorized’ and therefore lawful”

only when it is “issued for a legitimate medical purpose by

an individual practitioner acting in the usual course of his

professional practice.” Ruan II, 597 U.S. at 455 (quoting

21 C.F.R. § 1306.04(a)). And in Ruan III, when reasoning

20a

why one who knows his drug distribution plan is unlawful

necessarily knows that drugs dispensed as planned are

done so in an unauthorized manner, we stated that had the

jury concluded the defendants “believed their actions to

be for a legitimate medical purpose,” it could not have

also found they knew their plan was unlawful. 56 F.4th at

1299 (emphasis added). In other words, we recognized

that a prescription “without a legitimate medical purpose”

necessarily is an “unauthorized” one.

Lastly, the Murphys contend that because the drug

conspiracy instruction did not define an “unlawful plan,”

it “incorporated” the substantive drug offense

instructions given in error. But this contention fails for

two reasons. First, the drug conspiracy instruction never

cross-referenced the substantive drug offense

instructions: for instance, the former did not instruct the

jury to pull the definition of a term from the latter, even if

the conspiracy and substantive instructions used some of

the same terms. Second, the jury need not have first heard

a fuller definition of “unlawful plan” for Ruan III’s logic

to obtain. One does not need dictionary definitions of the

words “unlawful plan,” to conclude that a defendant who

knows his plan to dispense drugs is unlawful also knows

that in dispensing those drugs as planned he would be

doing so in an unauthorized manner. Ruan III did not

hinge its approval of the section 846 drug conspiracy

instruction upon whether it first defined an “unlawful

plan.” Neither do we.

C.

Next, Mrs. Murphy contends that the district court

abused its discretion by denying her motion for a mistrial

after her accountant, Tapscott, invoked his Fifth

Amendment rights and discontinued his trial testimony.

The government called Tapscott, and he began his

21a

testimony by telling the jury about his career background

and his relationship with the Murphys. He had just

started discussing his preparation of CMEO’s taxes when

the court, concerned that Tapscott might incriminate

himself, stopped his testimony and advised him to obtain

a lawyer. The next day, outside the jury’s presence,

Tapscott elected not to continue testifying. The court then

instructed the jury to disregard all of Tapscott’s

testimony from the previous day. Later, the court

repeated that instruction when the jury submitted a

clarifying question about which witness’s testimony to

disregard. Mrs. Murphy insists, however, that the court’s

curative instructions were “less effective than putting a

Band-Aid on a bullet wound,” and so a mistrial was

warranted. We disagree.

We review the denial of a motion for mistrial for an

abuse of discretion. United States v. Gallardo, 977 F.3d

1126, 1138 n.8 (11th Cir. 2020). “A defendant is entitled to

a mistrial only if [she] shows substantial prejudice,

meaning that it is reasonably probable that, but for the

alleged error, the outcome of the trial would have been

different.” Id. at 1138. When the court gives a curative

instruction, as it did here, we presume the jury followed

the instruction. See id. As we have stated: when a court

“admi[ts] and later exclu[des] evidence, an instruction to

disregard evidence withdrawn from the jury is sufficient

grounds” for affirmance “unless the evidence is so highly

prejudicial as to be incurable by the trial court’s

admonition.” United States v. Nicholson, 24 F.4th 1341,

1354 (11th Cir. 2022) (quotation marks omitted).

Mrs. Murphy has not established such prejudice. She

has failed to argue what impact, if any, Tapscott’s brief

un-cross-examined testimony bore on the outcome of her

trial. After explaining his background in accounting,

Tapscott discussed Mrs. Murphy’s control of CMEO and

22a

his cashier’s check purchases for CMEO. But other

witnesses, including a urine collector, a maintenance

worker, and a sales representative, also testified to the

same or similar facts. Tapscott’s only unique testimony

was that Mrs. Murphy gave him “a sheet of paper with all

the expenses and the trips and stuff and the income of the

[CMEO] foundation” to file tax documents for CMEO.

But this minor detail on how he prepared CMEO’s tax

filings—or, at most, on the inadequacy of that

preparation—had little to no connection to Mrs. Murphy’s

tax fraud charges, which alleged that she lied on her

personal tax returns.

To be sure, as Mrs. Murphy observes, Tapscott also

testified that he prepared her personal returns. But the

jury would have known that fact even without hearing

Tapscott’s testimony, because “IRS e-file Signature

Authorization” documents disclosed that Tapscott was

authorized to file Mrs. Murphy’s tax documents, and

because three of her as-filed tax returns bore Tapscott’s

name and signature as their preparer. True, as Mrs.

Murphy points out, those tax returns were formally

admitted into evidence during Tapscott’s later stricken

testimony. But Tapscott’s testimony was not necessary to

the admission of these exhibits, the exhibits were

admitted without objection, the government did not ask

Tapscott any questions about the exhibits, and an IRS

agent later discussed the exhibits without objection—and

was cross-examined about them by the defense—after

Tapscott’s aborted testimony.

Nothing about Tapscott’s testimony was so

prejudicial that its admission was “incurable.” Nicholson,

24 F.4th at 1354 (quotation marks omitted). We cannot

say the district court abused its discretion by denying

Mrs. Murphy’s motion for a mistrial.

23a

D.

The Murphys also challenge the district court’s

exclusion of good care evidence. At trial, they sought to

have a few of Dr. Murphy’s patients—ones not mentioned

in the superseding indictment or during the government’s

case—testify about how he had provided them with good

care. The Murphys asserted that those patients could

testify, among other things, that “they received beneficial

treatment,” that some were prescribed fewer opioids over

time, and that Mr. Murphy sometimes “discontinued”

prescriptions for creams and braces that were not

effective. The district court excluded the evidence,

reasoning that Dr. Murphy was not charged for his acts

against “every single patient,” and that “showing other

patients as good character evidence” was a “problem.” See

Fed. R. Evid. 404(a)(1).

We review a court’s exclusion of evidence, including

good care evidence, for an abuse of discretion. United

States v. Ifediba, 46 F.4th 1225, 1238 (11th Cir. 2022), cert.

denied, 143 S. Ct. 2586 (2023); see also United States v.

Machado, 886 F.3d 1070, 1086 (11th Cir. 2018). That

standard “allows for a range of choice,” which “means that

sometimes we will affirm even though we might have

decided the matter differently in the first instance.” Doe

v. Rollins Coll., 77 F.4th 1340, 1347 (11th Cir. 2023), cert.

denied, 144 S. Ct. 1056 (2024).

We cannot say the district court abused its discretion

here. Federal Rule of Evidence 404(a)(1) prohibits the use

of “[e]vidence of a person’s character or character trait . .

. to prove that on a particular occasion the person acted in

accordance with the character or trait.” United States v.

Ahmed, 73 F.4th 1363, 1384 (11th Cir. 2023). As we have

stated, “[e]vidence of good conduct is not admissible to

negate criminal intent.” United States v. Camejo, 929

24a

F.2d 610, 613 (11th Cir. 1991). And, even when character

evidence is admissible—for instance, to prove a pertinent

trait such as honesty in a fraud case—that evidence

cannot consist of specific instances of past conduct unless

the trait itself is an “essential element” of the charge.

Ahmed, 73 F.4th at 1384. Under these principles,

testimony about specific instances of Dr. Murphy

providing good care to some patients—for example, by

discontinuing or reducing their prescriptions—cannot be

used to prove whether he unlawfully dispensed drugs to

other patients, or conspired to do so, as charged in the

indictment. See id. (character testimony was correctly

excluded because it would have covered a defendant’s

“specific acts” unrelated to his criminal charges and be

used to negate criminal intent).

The Murphys contend, however, that excluding the

good care evidence violated their Sixth Amendment right

to present a defense. “Whether the exclusion of the

evidence violated a constitutional guarantee is a legal

question that we review de novo.” Ifediba, 46 F.4th at

1237.

As we have stated, “[i]mplicit in a criminal

defendant’s constitutional rights under the Fifth and

Sixth Amendments is the right to present evidence in his

. . . favor.” Machado, 886 F.3d at 1086. To decide whether

a defendant’s constitutional right to present a defense was

violated, we engage in a two-step analysis, asking: first,

whether that right was violated; and second, if so, whether

the error was harmless beyond a reasonable doubt.

United States v. Hurn, 368 F.3d 1359, 1362–63 (11th Cir.

2004).

As to the first step, we outlined in Hurn four

categories of evidence that a defendant generally has a

constitutional right to present: (1) “evidence directly

25a

pertaining to any of the actual elements of the charged

offense or an affirmative defense”; (2) “evidence

pertaining to collateral matters that, through a

reasonable chain of inferences, could make the existence

of one or more of the elements . . . more or less certain”;

(3) “evidence that is not itself tied to any of the elements

… but that could have a substantial impact on the

credibility of an important government witness”; and (4)

“evidence that, while not directly or indirectly relevant to

any of the elements of the charged events, nevertheless

tends to place the story presented by the prosecution in a

significantly different light, such that a reasonable jury

might receive it differently.” Id. at 1363. Importantly,

“[e]ven when one of the four circumstances listed in Hurn

is present, ‘otherwise relevant evidence may sometimes

validly be excluded under the [Federal] Rules of

Evidence.’” Machado, 886 F.3d at 1085 (quoting Hurn,

368 F.3d at 1363 n.2). And as we observed only a few years

ago, the Supreme Court “has never held that a federal

rule of evidence violated a defendant’s right to present a

complete defense.” United States v. Mitrovic, 890 F.3d

1217, 1222 (11th Cir. 2018).

The Murphys argue that the proffered good care

evidence fell under the first, second, and fourth Hurn

categories. We address each of these categories in turn.

The first Hurn category does not apply. The

Murphys argue that the good care testimony directly

pertained to the “knowledge” or “intent” element of their

charged offenses. See e.g., Louis, 861 F.3d at 1333 (drug

conspiracy charge required proof that defendant “knew”

of the conspiracy). We disagree. That Dr. Murphy

knowingly or intentionally mistreated some patients is not

rebutted by the fact that he treated other patients

properly. See United States v. Ellisor, 522 F.3d 1255, 1270

(11th Cir. 2008) (quoting United States v. Marrero, 904

26a

F.2d 251, 260 (5th Cir. 1990) (“The fact that Marrero did

not overcharge in every instance in which she had an

opportunity to do so is not relevant to whether she, in fact,

overcharged as alleged in the indictment.”)).

Hurn’s second category does not help the Murphys

either. They argue that the good care testimony could

rebut the government’s apparent “collateral” assertion

that their clinic was “illegitimate”—from which, they

argue, the jury could infer that Dr. Murphy knowingly

prescribed drugs in an unauthorized manner. See Hurn,

368 F.3d at 1353. But whether Dr. Murphy mistreated the

patients as alleged in the indictment and the

government’s case did not turn on NAPS’s legitimacy as

a whole. In fact, government witnesses testified about the

clinic’s “many aspects of good care,” including, for

instance, its “proper paperwork” on mental status, “a

compilation of external records,” “drug testing on the

initial visit,” and warnings “not to mix the pain

medications with alcohol.” But similar to above, there is

no conflict between NAPS providing legitimate care to

some patients at some moments, and the Murphys

knowingly mistreating other patients at others. To put it

differently, even if the good care testimony added to

NAPS’s legitimacy, doing so would not make it “more or

less certain” that the Murphys knowingly mistreated the

patients that trial evidence established they mistreated.

The Murphys finally rely on Hurn’s fourth category.

They argue that the proffered good care testimony—even

if irrelevant to an element of a charged offense—would

place the prosecution’s “story . . . in a significantly

different light,” Hurn, 368 F.3d at 1363, by dispelling the

“taint of the portrayal of Dr. Murphy’s clinic as

illegitimate.” We are not convinced. Again, evidence

already suggested that NAPS was not an entirely

illegitimate clinic. Witnesses testified about Dr. Murphy

27a

or his clinic providing patients with good care. Dr.

Murphy’s expert testified, in his expert opinion, that Dr.

Murphy had issued legitimate prescriptions for patients

whose files the expert reviewed. And Dr. Murphy himself

gave testimony—which the jury was free to disbelieve,

Rivera, 780 F.3d at 1098—about his clinic’s policies,

procedures, and practices in treating patients; about

aspects of his good care; and that he “loved [his] patients.”

Given this testimony in the Murphys’ favor—and, given

the strong evidence of the Murphys mistreating some

patients—more good care testimony would not have

casted the evidence in a “significantly” different light. Id.

at 1363.

Our decision in United States v. Ifediba supports our

analysis. See 46 F.4th 1225. There, the district court

excluded good care evidence purportedly “showing that

[Ifediba] provided legitimate medical treatment to some

patients.” Id. at 1238. The defendant argued that the

exclusion violated his “constitutional right to present a

complete defense” because his good care testimony could

have placed the prosecution’s story in a “‘significantly

different light.’” Id. (quoting Hurn, 368 F.3d at 1363). We

disagreed. Evidence that “Ifediba lawfully treated some

patients” was “no defense,” we explained, because “the

government never alleged that Ifediba unlawfully treated

every patient” and even “conceded that his treatment of

some patients was legitimate.” Ifediba, 46 F.4th at 1238.

The same is true here, where the government

acknowledged instances of Dr. Murphy properly treating

his patients but then stated that “this case . . . is about the

times he didn’t” provide “good care.” And, we reasoned in

Ifediba, the district court did not abuse its discretion in

excluding the good care evidence because Rule 404 forbade the use of it to negate criminal intent. Id. That is the

same reasoning we applied above.

28a

E.

In their final challenge to their convictions, the

Murphys argue that they are entitled to a new trial due to

the cumulative error doctrine. Under that doctrine, “an

aggregation of non-reversible errors (i.e., plain errors

failing to necessitate reversal and harmless error) can

yield a denial of the constitutional right to a fair trial,

which calls for reversal.” United States v. Chalker, 966

F.3d 1177, 1193 (11th Cir. 2020). But here, the district

court committed no errors. Because we are “left with no

errors to accumulate,” the Murphys’ cumulative error

challenge necessarily fails. See id. at 1193–94.

F.

We now address Dr. Murphy’s sentencing challenges.

We review a district court’s factual findings at sentencing

for clear error, and its interpretation and application of

the Sentencing Guidelines de novo. See United States v.

Stein, 846 F.3d 1135, 1151 (11th Cir. 2017); United States

v. Bradford, 277 F.3d 1311, 1312 (11th Cir. 2002).

At sentencing, the district court calculated that Dr.

Murphy’s guidelines range, with statutory maximums

stacked, see U.S.S.G. § 5G1.2(d), was 1,140 months in

prison. The government requested a guidelines sentence

of 1,140 months. Dr. Murphy requested a sentence of five

years of home confinement. The district court

downwardly varied and sentenced Dr. Murphy to 240

months in prison.

Dr. Murphy challenges his sentence by arguing that

(1) the district court miscalculated his guidelines range by

miscalculating the loss amount and drug quantity and (2)

even if the court’s calculations were correct, his sentence

is substantively unreasonable. The government argues

that, under United States v. Keene, 470 F.3d 1347 (11th

29a

Cir. 2006), we need not review Dr. Murphy’s guidelines

objections because the district court stated it would have

imposed the same sentence even absent the alleged errors

and because that sentence, absent those errors, would still

have been reasonable. We agree with the government: the

district court made Keene findings, and the sentence

imposed would have been reasonable even if Dr. Murphy’s

guidelines objections were sustained. Logically, we also

conclude that under the higher guidelines range the court

did calculate, Dr. Murphy’s sentence was substantively

reasonable.

1.

We first ask whether the district court made a Keene

finding. It did. In Keene, we declined to consider a

defendant’s argument about a sentencing enhancement

because “the district court told us that the enhancement

made no difference to the sentence it imposed.” 470 F.3d

at 1348. Since then, we have held that if a district court

states that it would have imposed the same sentence even

absent an alleged error—i.e., makes a Keene finding—we

will affirm the court so long as the sentence imposed, even

absent the alleged error, would have been substantively

reasonable. See id. at 1349; United States v. Grushko, 50

F.4th 1, 18 (11th Cir. 2022); United States v. Goldman, 953

F.3d 1213, 1221 (11th Cir. 2020). By declining to consider

sentencing objections on appeal in such cases, we “avoid

pointless reversals and unnecessary do-overs of sentence

proceedings.” Grushko, 50 F.4th at 18 (quotation marks

omitted).

Here, the district court stated at sentencing that “the

sentence actually given would have been the same

regardless of how the guideline issues had been resolved.”

The court explained that “if the calculation should have

been actual loss as opposed to intended loss, and Count 1

30a

is somehow or another thrown out, I’m varying upward,

and given the opportunity to resentence [Dr. Murphy], I

would vary upward again for the same calculation.” The

court elaborated: “So, if I have to see him again, I want to

make sure that’s clear. . . . [I]f I somehow or another

messed up those, the calculation—my sentence, I believe,

would nonetheless be reasonable.” These statements

amounted to a Keene finding. See Goldman, 953 F.3d at

1221 (Keene finding present when court “stated that it

would have imposed the same sentence regardless” of the

value of a stolen gold bar, an issue the defendant raised as

to the court’s total offense calculation).

Dr. Murphy argues that the district court made no

Keene finding because it “failed to consider any

alternative to its drug weight determination.” We

disagree. The record establishes that the court expressly

considered alternative drug quantity (and thus, drug

weight). For one, it was only after Dr. Murphy objected

to “drug quantity calculation” at sentencing—and after

the parties debated the issue and the court overruled the

objection—that the court stated the sentence would have

remained regardless of how the “guideline issues” were

resolved. In context, “guidelines issues” included the drug

quantity calculations. Second, the court stated that if

“Count 1 is thrown out”—which would entail no drug

weight because Count 1 charged drug conspiracy and no

other conviction factoring into sentencing involved drug

quantity calculations—“there would still be 240 months.”

2.

Because the district court made a Keene finding, we

now assess whether the sentence imposed would be

substantively reason-able under sentencing factors in 28

U.S.C. § 3553(a), even if the guidelines issue were

“decided in the way the [Dr. Murphy] argued and the

31a

advisory range reduced accordingly.” Keene, 470 F.3d at

1349.

Dr. Murphy raised two guidelines issues. First, he

argues that the district court’s drug quantity

determination was “factually baseless.” Second, he argues

that the court miscalculated the “loss” amount under

U.S.S.G. § 2B1.1—an amount that escalated his offense

level for his fraud-related convictions—because the court

included “intended” instead of only “actual” loss in its

calculations.

If Dr. Murphy prevailed on these two issues—i.e., if

the court entirely ignored his Count 1 drug conspiracy

conviction (thus reducing drug weight to zero) and

calculated loss to only include “actual” loss—his total

offense level would have been level 35. The district court,

the government, and Dr. Murphy all agree. Based on a

total offense level of 35, the guidelines range would have

been—as the government and Dr. Murphy also agree—

168 to 210 months.

It is Dr. Murphy’s burden “to prove that his sentence

is unreasonable in light of the record and § 3553(a).”

Keene, 470 F.3d at 1350. Here, he has not established that

his 240-month sentence was unreasonable if the

guidelines range were 168 to 210 months.

In assessing a sentence’s reasonableness, we have

stated that the sentence “must be sufficient, but not

greater than necessary to comply with the purposes listed

in 18 U.S.C. § 3553(a).” Grushko, 50 F.4th at 19 (quotation

marks omitted). “The court must consider all of the §

3553(a) factors, but it may give greater weight to some

factors over others or even attach great weight to a single

factor.” Id. And, it need not “state on the record that it

has explicitly considered each of the § 3553(a) factors or

to discuss each of the § 3553(a) factors.” United States v.

32a

Kuhlman, 711 F.3d 1321, 1327 (11th Cir. 2013). We will

vacate a sentence only if we have a “definite and firm

conviction that the district court committed a clear error

of judgment in weighing” the sentencing factors.

Grushko, 50 F.4th at 19 (quotation marks omitted).

Here, the 240-month sentence was substantively

reasonable even under a guidelines range of 168 to 210

months. The district court discussed the section 3553(a)

factors at length. It discussed the seriousness of the

offense, pointing to the “huge amount” of money stolen,

and “the lives that [the Murphys] participated in

destroying” through their drug distribution and theft. See

18 U.S.C. § 3553(a)(2)(A). It stated that its sentence

reflected “the need to promote respect for the law and to

provide just punishment for this offense.” See id. It

explained that the sentence “also acts as a deterren[t] for

other criminal conduct” including “other people that are

considering whether or not they can steal like this.” See

id. § 3553(a)(2)(B). It considered Dr. Murphy’s

“characteristics,” id. § 3553(a)(1), including that he was 66

years old. And even if Count 1 were vacated, the 240month sentence would still be years below the statutory

maximums for Counts 5 to 11 and Count 22. See 18 U.S.C.

§§ 371, 1347, 1349; 42 U.S.C. § 1320a-7b(b)(1). Because of

these reasons, we conclude that even if the guidelines

range were 168 to 210 months, a sentence of 240 months—

a 30-month upward variance—would be reasonable. See

Grushko, 50 F.4th at 19–20 (a 145-month sentence on an

assumed guideline range of 75 to 87 months was

reasonable where district court discussed the section

3553(a) factors); United States v. Riley, 995 F.3d 1272,

1280 (11th Cir. 2021) (“an additional sign of the upward

variance’s reasonableness is the fact that Riley’s 70month sentence is more than 4 years below his 10-year

statutory maximum”).

33a

3.

Left remaining is Dr. Murphy’s argument that even

under the guidelines range the court did calculate—1,140

months—the 240-month sentence is substantively

unreasonable. But the foregoing considerations justify

the same sentence here.

III.

For the reasons above, we AFFIRM the Murphys’

convictions and sentences.

34a

JORDAN, Circuit Judge, Concurring:

With the exception of Part II.D., I join Judge

Brasher’s thorough opinion for the court. I write

separately on two of the issues raised by the Murphys.

First, I agree that the Murphys’ challenge to the drug

conspiracy instruction is foreclosed by our prior decision

in United States v. Ruan, 56 F.4th 1291, 1298–99 (11th

Cir. 2023) (Ruan III). But if we were writing on a clean

slate, I would find the Tenth Circuit’s contrary decision in

United States v. Kahn, 58 F.4th 1308, 1311 (10th Cir.

2023), more persuasive.

Second, I acknowledge that under our cases—namely

United States v. Ruan, 966 F.3d 1101, 1156–58 (11th Cir.

2020) (Ruan I), vacated, 142 S. Ct. 2895 (2022) (Ruan II),

reinstated in relevant part, Ruan III, 956 F.4th at 1295

n.1, and United States v. Ifediba, 46 F.4th 1225, 1237–38

(11th Cir. 2022)—the district court did not abuse its

discretion in excluding the Murphys’ so-called “good care”

evidence. I therefore concur in the judgment as to Part

II.D. of the court’s opinion.

It seems to me, however, that where—as here—the

government tries to paint a medical clinic as a pill mill with

hundreds of patients a day, the defendants who ran the

clinic are entitled to put on evidence that many of their

patients received good care under medically-accepted

standards. The government’s insinuation is that if proper

care is not being provided most of the time, then it is a fair

inference that the prescriptions for the patients

mentioned in the indictment were not legitimate. The

defendants should be entitled to counter the impression

the government is trying to convey. See, e.g., United

States v. Word, 129 F.3d 1209, 1212–13 (11th Cir. 1997)

(reversing conviction because the defendant “was not

afforded the opportunity to present evidence to counter

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the government’s argument” as the government’s “trial

strategy made this defense evidence highly significant”).

APPENDIX B

[FILED: FEBRUARY 17, 2023]

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

NORTHEASTERN DIVISION

UNITED STATES

AMERICA,

OF )

)

)

)

v.

) 5:20-cr-291-LSC-SGC-1

) 5:20-cr-291-LSC-SGC-2

MARK MURPHY

)

and

)

)

JENNIFER MURPHY,

)

Defendants.

)

MEMORANDUM OF OPINION AND ORDER

This cause comes before the Court on the post-trial

motions filed by Defendants, Dr. Mark Murphy (“Dr.

Murphy”) and Jennifer Murphy. (Docs. 180, 181, 201 &

202.) For the following reasons, Docs. 180, 181, and 201

are due to be denied, and Doc. 202 is due to be granted in

part and denied in part.

I.

Background and Procedural History

Dr. Murphy and Jennifer Murphy were indicted for

crimes ranging from drug distribution conspiracy to

health care fraud to kickbacks. The charges stemmed

from the Murphys’ operation of a pain management clinic

in Decatur and Madison, Alabama. After a nearly twoweek trial, on March 1, 2022, a jury found Dr. Murphy

(36a)

37a

guilty on Counts 1, 3, 5, 6-10, 11, and 22 of the Indictment.

Jennifer Murphy was found guilty on Counts 1, 5, 6-10, 11,

22, and 23-25 of the Indictment. These counts were

Conspiracy to Distribute Controlled Substance, in

violation of 21 U.S.C. § 846 (Count 1); Controlled

Substance—Sell, Distribute, or Dispense, in violation of

21 U.S.C. § 841(a)(1) & (b)(1)(C) and 18 U.S.C. § 2 (Count

3); Attempt and Conspiracy to Commit Mail Fraud, in

violation of 18 U.S.C. § 1349 (Count 5); five counts of

Health Care Fraud, in violation of 18 U.S.C. § 1347

(Counts 6-10); Conspiracy to Defraud the United States,

in violation of 18 U.S.C. § 371 (Count 11); Acts Involving

Federal Health Care Programs-Illegal Renumerations, in

violation of 42 U.S.C. § 1320a-7b(b)(2) and 18 U.S.C. § 2

(Count 22); and three counts of Fraud and False

Statements, in violation of 26 U.S.C. § 7206(1) and 18

U.S.C. § 2 (Counts 23-25).

On April 19, 2022, Jennifer Murphy filed a Motion for

Judgment of Acquittal and Motion for a New Trial (doc.

180), and Dr. Murphy filed a Motion for New Trial (doc.

181). Jennifer Murphy argued that she is entitled to an

acquittal because the evidence presented by the

Government was insufficient to sustain her convictions,

and she argued that she is entitled to a new trial for

several reasons: the weight of the evidence does not

support the jury’s verdict on all counts, the Court erred in

denying her motion for a mistrial based upon the

testimony of Government witness Williard Tapscott, the

Court erred in instructing the jury as to Count 1, and the

cumulative effect of all of the alleged errors. (See doc.

180.) Dr Murphy’s sole argument in support of his motion

for a new trial was that the Court erred in refusing to

allow him to present evidence that he provided good

medical care to other patients who were not named in the

Indictment or part of the Government’s case. (See doc.

38a

181.) The Government filed an omnibus response in

opposition to the defendants’ post-trial motions. (Doc.

186).

On June 27, 2022, the Supreme Court issued its

decision in Ruan v. United States, 142 S. Ct. 2370 (2022)

(“Ruan”), a case from the Eleventh Circuit in which two

physicians operating a pain clinic in Mobile, Alabama, Dr.

John Patrick Couch and Dr. Xiulu Ruan, had been

convicted of violating the Controlled Substances Act by

dispensing Schedule II drugs outside the usual course of

professional practice and without a legitimate medical

purpose, as well as numerous other crimes. On July 11,

2022, this Court held a telephone conference with the

parties to discuss the impact, if any, that the Supreme

Court’s holding with regard to jury instructions for a 21

U.S.C. § 841 charge had on this case. Shortly thereafter,

the defendants sought leave to file supplemental briefing

in support of their post-trial motions, in order to argue

that Ruan constitutes a significant intervening change in

law. This Court obliged, and on July 29, 2022, Dr. and

Jennifer Murphy each filed a supplemental brief in

support of their post-trial motions, and Dr. Murphy also

included a motion for a judgment of acquittal. (Docs. 201

& 202.) In their supplemental motions, Dr. and Jennifer

Murphy each claimed that Ruan requires a new trial on

all charges. Each defendant incorporated the other’s

arguments by reference. The Government filed an

omnibus response in opposition on August 12, 2022. (Doc.

204). Dr. and Jennifer Murphy filed a joint reply in

support on September 2, 2022. (Doc. 208).

II. Standards of Review

Rule 29(c) of the Federal Rules of Criminal

Procedure authorizes the Court, on the defendant’s

motion, to “enter a judgment of acquittal of any offense

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for which the evidence is insufficient to sustain a

conviction.” On a Rule 29(c) motion for judgment of

acquittal, the Court “must view the evidence in the light

most favorable to the government, and determine

whether a reasonable jury could have found the defendant

guilty beyond a reasonable doubt.” United States v.

Miranda, 425 F.3d 953, 959 (11th Cir. 2005) (cleaned up).

A jury’s verdict should stand “if there is any reasonable

construction of the evidence that would have allowed the

jury to find the defendant guilty beyond a reasonable

doubt.” United States v. Hough, 803 F.3d 1181, 1187 (11th

Cir. 2011) (cleaned up).

Rule 33(a) of the Federal Rules of Criminal

Procedure authorizes the Court to “vacate any judgment

and grant a new trial if the interest of justice so requires.”

A motion for a new trial is addressed to the sound

discretion of the trial court. United States v. Martinez,

763 F.2d 1297, 1312 (11th Cir. 1985).

III. Discussion

A. In light of the Ruan decisions, Dr. Murphy’s

conviction on Count 3 for dispensing a

controlled substance unlawfully in violation of

21 U.S.C. § 841 (a)(1) is due to be vacated

The parties agree that Dr. Murphy’s conviction on

Count 3—the substantive drug distribution count—

should be vacated. This Court agrees. Count 3 charged

Dr. Murphy with the crime of issuing a specific controlled

substance prescription unlawfully. Consistent with the

law in this and multiple other circuits at the time,

including United States v. Ruan, 966 F.3d 1101, 1165-70

(11th Cir. 2020) (vacated and remanded in Ruan, 142 S.

Ct. 2370 (2022)) (hereinafter “Ruan I”), this Court

instructed the jury that it could convict Dr. Murphy of this

crime if it found that he (1) dispensed the prescription, (2)

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knowingly and intentionally, and (3) without a legitimate

medical purpose or outside the usual course of

professional practice. The instructions did not expressly

require the jury to find that Dr. Murphy knew that the

charged prescription was without a legitimate medical

purpose or outside the usual course of professional

practice.

As noted, after the trial in this case, the Supreme

Court held in Ruan that the Government must also prove

an additional element: “that the defendant knew that he

or she was acting in an unauthorized manner, or intended

to do so.” 142 S. Ct. at 2374. However, the Supreme Court

declined to apply its new standard to the facts of Ruan

and remanded to the Eleventh Circuit to consider the

issue in the first instance. Id. at 2382. On January 5, 2023,

the Eleventh Circuit Court of Appeals issued its remand

decision in United States v. Ruan, 56 F.4th 1291 (11th Cir.

Jan. 5, 2023) (hereinafter “Ruan II”). On remand, the

Eleventh Circuit held that the jury instruction used in the

Ruan trial was indeed inconsistent with the Supreme

Court’s guidance, and that the jury was not adequately

instructed that it had to find that Dr. Ruan and Dr. Couch

acted with knowledge or intent in order to convict them

for dispensing controlled substances in violation of the

Controlled Substances Act. Id. at 1298. The court further

found that this error was not harmless beyond a

reasonable doubt for the substantive drug charges and

thus vacated those convictions. Id. However, it concluded

that the instructional error was harmless as to the other

convictions in the case. Id. at 1299-1302. Accordingly, the

Eleventh Circuit vacated the defendants’ substantive

drug convictions under 21 U.S.C. § 841(a) and remanded

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for a new trial but affirmed the defendants’ convictions on

all other counts. Id. at 1302.1

The instructions that were given in Ruan I are

substantially similar to those that were given at the trial

in this case. While this Court’s instructions were the law

in the Eleventh Circuit when given, after Ruan II, they

are not. The Ruan cases compel the conclusion that

because the jury was not instructed, as to Count 3, that it

must find that Dr. Murphy knew or intended that his

prescription was unauthorized—that is, without a

legitimate medical purpose or outside the usual course of

professional practice—the instruction was erroneous. The

parties further agree that the error was not harmless, and

this Court agrees. See United States v. Drury, 396 F.3d

1303, 1314 (11th Cir. 2005) (“Plainly, a jury instruction

that omits an element of the charged offense . . . is subject

to harmless error analysis.”); Ruan II, 56 F.4th at 1298

(finding the error not harmless); United States v.

Robinson, 505 F.3d 1208, 1224-25 (11th Cir. 2007) (noting

that a new trial may be appropriate where a new case

conflicts with the jury instructions given at trial).

Accordingly, Dr. Murphy’s conviction on Count 3 is due to

be vacated.

As of the date of the entry of this Memorandum of Opinion and

Order, the mandate has not been issued in Ruan II, and a petition for

rehearing en banc has been filed.

1

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B. The Supreme Court’s holding in Ruan has no

bearing on Dr. and Jennifer Murphy’s

convictions on Count 1 for conspiring to

distribute or dispense controlled substances in

violation of 21 U.S.C. § 846, and those

convictions stand

Unlike with the substantive drug count (Count 3),

Ruan provides no basis for vacating Dr. Murphy’s or

Jennifer Murphy’s drug conspiracy convictions on Count

1. To violate 21 U.S.C. § 846 the Government must prove:

“(1) there was an agreement between two or more people

to commit a crime (in this case, unlawfully dispensing

controlled substances in violation of § 841(a)(1)); (2) the

defendant knew about the agreement; and (3) the

defendant voluntarily joined the agreement.” Ruan II, 56

F.4th at 1299 (quoting United States v. Azmat, 805 F.3d

1018, 1035 (11th Cir. 2015)). Tracking the law, this Court

instructed the jury that it could convict a defendant on

Count 1 only if it found that: (1) the defendant agreed with

one or more others to try to accomplish a shared and

unlawful plan to dispense controlled substances without a

legitimate medical purpose or outside the usual course of

professional practice; (2) the defendant knew the unlawful

purpose of the plan and willfully joined in it; and (3) the

object of the unlawful plan was to dispense controlled

substances without a legitimate medical purpose or

outside the usual course of professional practice. (Trial

Transcript Vol. IX at 129.)

The Eleventh Circuit’s recent decision on remand in

Ruan II forecloses any argument that Dr. and Jennifer

Murphy’s conspiracy convictions should be vacated by

virtue of the Supreme Court’s holding in Ruan. The drug

conspiracy jury instructions that were given in Ruan I

were nearly identical to the instructions given at trial

43a

here. The Supreme Court did not address the drug

conspiracy jury instructions in Ruan, only the substantive

drug distribution jury instructions. On remand, the

Eleventh Circuit held that the error with regard to the

jury instructions for the substantive drug charges was

harmless to Dr. Ruan’s and Dr. Couch’s convictions for

conspiring to dispense drugs unlawfully under 21 U.S.C.

§ 846. Ruan II, 56 F.4th at 1299 (“Because a conviction

under § 846 requires the jury to find that the defendants

knew of the illegal nature of the scheme and agreed to

participate in it, the erroneous jury instruction for the

substantive charges has a limited impact here. . . . The

jury did not need an additional instruction clarifying

between subjective and objective good faith for the

‘except as authorized’ exception, because the conspiracy

instructions already required them to find that the

defendant acted with subjective knowledge.”). In sum,

Ruan II compels the conclusion that this Court’s

instructions on Count 1 were and remain legally correct,

and the Supreme Court’s Ruan decision provides no

reason to overturn Dr. and Jennifer Murphy’s convictions

on Count 1.

C. Dr. Murphy’s argument that he is entitled to a

new trial because he was not allowed to offer

“good care” evidence

The Court turns to Dr. Murphy’s contention that he

should receive a new trial because the Court violated his

constitutional right to present a complete defense by

ruling that he was prohibited from offering testimony

about good medical care from patients not named in the

Indictment or in the Government’s.

At trial, Dr. Murphy asked to call other patients—at

least seven—who would testify that he provided good

medical care to them in order to rebut the Government’s

44a

portrayal of his practice as an illegitimate profit center

rather than a legitimate medical practice. He sought to

offer evidence of “how long they have been a patient, that

they were referred by other doctors, that they received

beneficial treatment, that the treatment actually in many

cases [sic] the opioids were decreased over time, that in

some cases Dr. Murphy did recommend that they try back

braces or pain creams, that sometimes they tried and they

worked and sometimes they tried and they didn’t and then

he discontinued them . . . .” (Trial Transcript Vol. VII at

14-15.)

The Government objected, and this Court,

commenting that an identical issue was addressed by the

Eleventh Circuit in Ruan (I), prohibited Dr. Murphy from

offering the testimony, noting as follows:

Isn’t this exactly like the Ruan case? Wasn’t this

an issue that was raised in Ruan with the Eleventh

Circuit?

...

Well, there are specific patients that were charged,

specific patients that the government has pointed to

as examples. Every one of those you can bring in

here. Every one of those you can put on the stand and

say, didn’t the doctor really see you. Every one of

those, if you come up with those, I am one hundred

percent behind you. The problem is, showing other

patients as good character evidence to show that he

acted correctly with regard to those patients, he’s not

charged with doing this to every single patient. In

fact, there were countless witnesses that testified

that he was very caring, that he looked at patients, he

examined patients, that he tried to figure out what to

do with them. He’s not charged with doing this to

every patient. He’s charged with a conspiracy to do

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this with patients. Some. It may be a lot. And

whatever the government has pointed to is fair game.

(Id. at 14, 16–17, 19–20.)

Dr. Murphy did call one patient named in the

Indictment (Michael A.) and another discussed by the

Government’s expert witness (David G.) and was

permitted to elicit testimony from them about their care.

Dr. Murphy also called five patients not mentioned in the

Indictment or Government’s proof—John A., Margret D.,

Gary S., Deborah P., and Charles B.—but, as directed by

the Court, did not ask them questions about the quality of

Dr. Murphy’s care.

Ruan I effectively forecloses Dr. Murphy’s argument

that he should have been allowed to present the evidence.2

In Ruan I, the Eleventh Circuit rejected an identical

argument made by Dr. Couch and Dr. Ruan, who had

desired to present the testimony of an individual patient

who would testify as to the helpful medical care that he

received from Dr. Couch. In assessing the claim, the

Eleventh Circuit first noted that although the

Constitution guarantees criminal defendants a

meaningful opportunity to present a complete defense,

that right is subject to reasonable restrictions, such as the

evidentiary prohibitions on irrelevant evidence or

evidence whose probative value would likely be

outweighed by the danger of undue delay, waste of time,

or needlessly presenting cumulative evidence. Ruan I,

966 F.3d at 1153-55 & n.22. The Eleventh Circuit then

recounted its holding in United States v. Hurn, 368 F.3d

Although Ruan I was vacated and remanded by the Supreme Court,

on remand, the Eleventh Circuit held that it was adopting the

reasoning from Ruan I on all issues except the challenge to the jury

instructions used for the substantive drug charges under 21 U.S.C. §

841. See Ruan II, 56 F.4th at 1296 n.1.

2

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1359 (11th Cir. 2004), which discussed four circumstances

in which a district court’s exclusion of a criminal

defendant’s evidence under the evidentiary rules might

violate the Constitution. Id. at 1154. The court reiterated

its holding in Hurn that in considering whether a

defendant’s constitutional right to present a complete

defense was violated, a court should first determine

whether the right was actually violated and if so, then

determine whether the error was harmless beyond a

reasonable doubt. Id. at 1155. Like Dr. Couch and Dr.

Ruan argued in Ruan I, Dr. Murphy argues that his

proposed “good care” evidence should have been admitted

under the first, second, and fourth Hurn categories. As in

Ruan I, all of these claims fail, but the Court will address

them out of order, for reasons explained herein.

The second category of Hurn evidence is that which,

“though not directly bearing on an element of the offense

charged, tends to prove collateral matters relating to the

defense.” Ruan I, 966 F.3d at 1156 (citing Hurn, 368 F.3d

at 1364). As the doctors did in Ruan I, Dr. Murphy argues

that “good care” evidence would have tended to prove that

he was operating a legitimate practice, as a collateral

matter. The Ruan I court rejected that argument, noting

that the Hurn court envisioned this category as

pertaining to “evidence that tends to negate the mens rea

of an offense.” Id. The Ruan I court held that the

proposed testimony would not have tended to negate the

mens rea element of the drug offenses because the

Government never alleged that the doctors’ treatment of

this particular witness was outside the usual course of

professional practice. Id. (“[N]othing [the witness] would

have testified about would have been probative of Couch’s

actions towards the patients that the government

asserted were provided with illegal prescriptions . . . .”).

The same logic applies here. Whether Dr. Murphy

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practiced good medicine sometimes would not show that

at other times he unlawfully prescribed opioids and

committed health care fraud offenses.

The fourth category of Hurn evidence is that which

“‘complete[s] the picture’ of the charged crimes and

presents the government’s evidence in a more favorable

or different light that might influence a reasonable juror.”

Ruan I, 966 F.3d at 1156 (quoting Hurn, 368 F.3d at

1367). This circumstance “recognizes that defendants

have a right to combat ‘the government’s selective

presentation of entirely truthful evidence [that] cast[s] a

defendant in an inaccurate, unfavorable light’ or that

makes ‘entirely legitimate, normal, or accepted acts

appear unusual or suspicious.’” Id. (quoting Hurn, 368

F.3d at 1366–67). As the doctors did in Ruan I, Dr.

Murphy argues that “good care” evidence would have

completed the picture by counteracting the Government’s

negative portrayal of his practice. The Eleventh Circuit in

Ruan I rejected that argument, holding that the proposed

testimony was not necessary to complete the picture

“because it was undisputed that the [doctors] treated

thousands of patients and there was no allegation that

they mistreated them all.” Id. at 1157. The Eleventh

Circuit quoted portions of the government’s opening and

closing statements in which it emphasized that the doctors

were not accused of mistreating every single patient:

“There is no question . . . that there were certainly

instances where Dr. Ruan and Dr. Couch did a really good

job for their patients. We’re not here because of that.

We’re here for the times that they were prescribing these

drugs outside the usual course of professional practice.”

Id.

As Dr. Murphy admits, the Government described

this case similarly. In opening, the Government told the

jury, “this case is not about every single prescription that

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Dr. Murphy wrote over the years or whether Dr. Murphy

ever wrote any legitimate prescriptions ever.” (Trial

Transcript Vol. I at 18.) In closing, the Government

stated: “Dr. Murphy did spend time with some patients.

He did see patients on first visits. . . . And this case isn’t

about the times that Dr. Murphy may have provided good

care to his patients. This is about the times he didn’t.” (Id.

at Vol. IX at 13.)

Additionally, many witnesses, including patients,

testified about aspects of legitimate care in the practice.

Patient M.A. testified that he saw Dr. Murphy every

month and that, without chronic pain treatment, he would

not have been able to work; patient D.G. testified about

seeing Dr. Murphy monthly and having his medications

reduced, and said that the pain medications improved his

quality of life; and nurse practitioner Stacey Thiot

testified that Dr. Murphy “[a]bsolutely” cared about his

patients, stating that he treated his patients well, that presigning prescriptions could be characterized as an

efficiency, and that she thought Dr. Murphy did a good

job. Finally, the jury’s acquittal of Dr. Murphy on two

substantive counts of dispensing a prescription unlawfully

indicates their understanding that the Government did

not allege that all of the prescriptions that Dr. Murphy

wrote were illegal. Dr. Murphy cannot show that “good

care” evidence should have been admitted under the

fourth category of Hurn evidence.

After the Supreme Court decided Ruan, Dr. Murphy

added the argument in his supplemental motion for a new

trial or acquittal that “good care” evidence also falls into

the first Hurn category because it bears directly on an

element of a charged offense, specifically, his intent to act

without authorization in issuing prescriptions. See Ruan

I, 966 F.3d at 1155 (the first Hurn category is “implicated

when evidence is excluded that directly pertains to a

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formal element of a charged offense”) (citing Hurn, 368

F.3d at 1363). Dr. Murphy argues that before the

Supreme Court’s decision in Ruan, it was arguably

appropriate for a court to exclude “good care” evidence as

irrelevant, but that after Ruan, evidence of good care in

other instances should be admissible to disprove that

substandard care in some instances was intentionally

substandard, as opposed to negligently so. See Doc. 202 at

36 (“Evidence that a physician provided bad care in ten

out of ten cases supports an inference of intentional

wrongdoing. Evidence that he provided good care in

twenty out of thirty cases rebuts that inference and

supports alternative inferences of noncriminal

negligence.”).

The Court does not find merit to Dr. Murphy’s

argument that Ruan’s holding concerning the mens rea

for a 21 U.S.C. § 841 charge somehow disregards settled

law that “[e]vidence of good conduct is not admissible to

negate criminal intent.” United States v. Ellisor, 522 F.3d

1255, 1270 (11th Cir. 2008) (citing United States v.

Marrero, 904 F.2d 251, 260 (5th Cir. 1990), where “[t]he

fact that Marrero did not overcharge in every instance in

which she had an opportunity to do so [was] not relevant

to whether she, in fact, overcharged as alleged in the

indictment.”). In a bank fraud case where intent is at

issue, a defendant may not present evidence of all the

financial institutions he dealt with and did not defraud. So

too here, a doctor is not entitled to present evidence of all

the patients he dealt with and did not prescribe illicitly to,

just because the Government has alleged that in other

instances he did know he was prescribing unlawfully.

In sum, the Court’s exclusion of Dr. Murphy’s “good

care” evidence did not violate his constitutional right to

present a complete defense. Finding no constitutional

50a

violation, the Court need not determine whether the error

was harmless beyond a reasonable doubt.

D. Dr. and Jennifer Murphy’s arguments that

they are entitled to a judgment of acquittal or

a new trial on all of the remaining counts

based upon insufficiency of the evidence

1. Dr. Murphy’s convictions

i. Count 1: drug conspiracy

Dr. Murphy claims that he is entitled to a judgment

of acquittal on Count 1 based upon insufficiency of the

evidence, especially after Ruan. He argues that the

Government presented “no direct evidence of Dr.

Murphy’s state of mind regarding his prescription

writing.” But as the Supreme Court recognized in Ruan,

“the Government, of course, can prove knowledge of a lack

of authorization through circumstantial evidence.” 142 S.

Ct. at 2382. There was an abundance of such

circumstantial evidence presented, including through

witnesses who testified about Dr. Murphy’s frequent

absences from the clinics and the staff’s handing out of

drug prescriptions to patients, and medical experts who

testified about how egregious Dr. Murphy’s prescribing

practices were.

Additionally, Dr. Murphy testified. He admitted to

the jury that he had been a doctor for decades and kept

up with the rules; that nurses would see patients and hand

out drug prescriptions when he was at another clinic

location or out of town; that he could have but declined to

hire another doctor; that he pre-signed narcotics

prescriptions based on old information; that he pre-signed

a drug prescription for one patient for August 2015 that

the patient did not receive because he died in July 2015;

that he himself described his pre-signed prescriptions as

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a “standing order;” that patients went “months” if not

years without seeing him; and that he made a “substantial

income from the clinic.”

The jury also heard Dr. Murphy make inconsistent

statements. For example, after testifying that he was paid

to “supervise” the nerve conduction tests, Dr. Murphy

admitted on cross-examination that he was not in the

room or even in the clinic for those tests, he did not

interpret the test results, and he did not sign the

superbills. (Trial Transcript Vol. VIII at 51.) Similarly,

after testifying that he never told the Government that “I

am motivated to order tests to be paid,” Dr. Murphy was

forced to admit that this was false, as the transcript of his

interview with the Government reflected that he said that

he was “motivated to administer the tests to every patient

because of payment”: “I’m going to say yes because I do

like to be paid for services.” (Id. at 52-53.) The jury was

entitled to consider such instances of Dr. Murphy being

discredited into account in determining his state of mind.

“[A] statement by a defendant, if disbelieved by the jury,

may be considered as substantive evidence of the

defendant’s guilt.” United States v. Brown, 53 F.3d 312,

314 (11th Cir. 1995). In other words, “when a defendant

chooses to testify, he runs the risk that if disbelieved the

jury might conclude the opposite of his testimony is true.”

Id. (internal quotation marks omitted). Thus, Dr.

Murphy’s own testimony provided additional evidence of

his guilt on Count 1.

ii. remaining counts

Dr. Murphy also challenges all of his remaining

convictions: Count 5: conspiracy to commit health care

fraud; Counts 6-10: substantive health care fraud; Count

11: conspiracy to defraud the United States and receive or

solicit kickbacks; and Count 22: receiving a kickback from

52a

QBR, LLC, the company that performed nerve

conduction testing on patients at the clinic. As to all of

these, he argues that no rational juror could have found

that he acted without good faith.

Indeed, “[g]ood faith is a complete defense to the

element of intent to defraud.” United States v. Williams,

728 F.2d 1402, 1404 (11th Cir. 1984). Dr. Murphy testified

at trial, often stating his belief that various practices he

engaged in were legitimate. However, his testimony

conflicted with abundant evidence at trial, including

documents and other witness testimony. This evidence

showed that he defrauded the Government by ordering

medically unnecessary urine tests, prescribed medically

unnecessary back braces and creams in exchange for

kickbacks, and billed for services provided by nurse

practitioners under his NPI, among other things. The

jury was entitled to evaluate Dr. Murphy’s testimony,

consider his demeanor and credibility, and even believe

the opposite of what he said. In this case, his testimony

provided additional substantive evidence of his

involvement in fraudulent practices. In sum, there is no

merit to the claim that substantial evidence did not

support any of Dr. Murphy’s convictions.

2. Jennifer Murphy’s convictions

i. Count 1: drug conspiracy

Jennifer Murphy similarly argues that the evidence

was insufficient to convict her of participating in the drug

conspiracy in Count 1. At trial, the Government presented

far more than, as Jennifer Murphy argues in her motion,

that she was married to Dr. Murphy and that she was the

office administrator. Indeed, the Government presented

evidence that Jennifer Murphy played a critical role.

Witnesses testified that Jennifer Murphy handled the

patients and ran the office, that she brought home stacks

53a

of pre-printed prescriptions so Dr. Murphy could pre-sign

them and then brought them back to the office so they

could be handed out without Dr. Murphy’s being there;

and that she trumped medical staff decisions so that

patients would keep coming, and thus keep getting their

opioid prescriptions. Nurse practitioner Stacy Thiot said

that she would go to either Dr. Murphy or Jennifer

Murphy with questions about patients, because talking to

one was like talking to the other. Sales representative

Brian Bowman said that he talked to Jennifer Murphy

about the concerning patient volume even before 2012. On

the strength of this and other trial evidence, it was

reasonable for the jury to infer that Jennifer Murphy and

Dr. Murphy conspired to unlawfully dispense drugs

through prescriptions at their medical practice.3

ii. Counts 5-10: health care fraud conspiracy

and substantive health care fraud

There was also sufficient evidence of Jennifer

Murphy’s participation in the health care fraud

conspiracy and in support of the substantive health care

fraud counts charged in Counts 5-10. The jury heard

evidence that the Murphys billed insurance programs for

doctor visits even when Dr. Murphy did not conduct them

and had a standing order for urine drug screens and nerve

conduction studies on patients, including allowing

employee urine collectors try to sell patients braces and

creams whether they were needed or not.

Jennifer Murphy also makes a generalized objection to the jury

instruction for Count 1 but merely states that she “relies on the

arguments made at trial and any arguments that may be raised

separately by Dr. Murphy.” (Doc. 180 at 20-21.) This objection fails

for the reasons given at trial, and Dr. Murphy did not make any

arguments as to Count 1’s jury instructions.

3

54a

Jennifer Murphy again claims that the only evidence

the government offered in support of her participation in

the health care fraud conspiracy was that she was married

to Dr. Murphy and ran the clinic. In contrast, the jury

reasonably inferred that Jennifer Murphy was a key

participant in the health care fraud conspiracy through

abundant evidence, including: on insurance documents,

she was listed as the billing contact for the practice; sales

representative Brian Bowman described talking with her

about billing for office visits; several witnesses described

her involvement in the braces and creams side of the

scheme; sales representative Don Alan Hankins said that

she decided how much commission the urine collectors

would receive; witness Ruth Ann Rubbo said that Jennifer

Murphy would withhold brace and cream money from

urine collectors if she was angry at them for something;

and Bowman and Hankins would provide Jennifer

Murphy with pain cream prescription forms that the urine

collectors should use. There was also evidence that

Jennifer Murphy signed standing orders for drug

screens, even though Bowman emailed her the rules

against standing orders early on, and that she, along with

Dr. Murphy and on his behalf, took money from QBR for

the nerve conduction tests he ordered for every patient

twice a year. The jury also saw a video, shot inside the

Decatur clinic, depicting Jennifer Murphy in conversation

with QBR employees about those payments.

With regard to the substantive health care fraud

counts, Jennifer Murphy argues that the Government

failed to present evidence of her personal involvement in

Dr. Murphy’s brace orders and cream prescriptions.

However, the jury was instructed on aiding and abetting

and Pinkerton liability. “Pinkerton liability attaches

notwithstanding a defendant’s non-participation in the

offense or lack of knowledge thereof if the substantive

55a

offenses were a reasonably foreseeable consequence of

the conspiracy.” United States v. Shabazz, 887 F.3d 1204,

1221 (11th Cir. 2018) (cleaned up). Jennifer Murphy was

liable for the substantive health care fraud charges—

brace orders and cream prescriptions generated as part

of the conspiracy—because those orders and

prescriptions, and numerous others, were a reasonably

foreseeable consequence of the conspiracy Jennifer

Murphy joined.

iii. Counts 11 and 22: kickback conspiracy

and taking a kickback

There was also sufficient evidence to convict Jennifer

Murphy of joining a kickback conspiracy as charged in

Count 11, and of taking a kickback from QBR as charged

in Count 22. The jury heard evidence about a range of

kickbacks, including Bowman’s payments to two relatives

of Jennifer Murphy (Willie Frank Murphy and Mark

Murphy, Jr.); Bowman’s and Hankins’ and others’

donations to Jennifer Murphy’s nonprofit, the Crystal

Murphy Enrichment Organization (“CMEO”); the free

labor Jennifer Murphy received from urine collectors on

other companies’ payrolls; and the checks from QBR. The

jury heard evidence that Jennifer Murphy solicited

kickbacks and that others paid those kickbacks. The jury

also heard evidence that Jennifer Murphy tried to get

Hankins to hide that fact, by drafting a letter stating—

falsely—that she had never pressured him to donate to

her nonprofit.

Jennifer Murphy argues for acquittal on the

substantive kickback count—a $14,000 check from QBR—

on the theory that the check was made out to Dr. Murphy,

not her. However, the evidence was that she was the

conspirator who regularly sought payment from QBR,

regardless of who the checks were made out to, and she

56a

was the conspirator who regularly received the checks

from QBR employees or from Sharon Luttrell acting as

courier. Finally, she was liable under Pinkerton and as an

aider and abettor.

iv. Counts 23-25: tax fraud

There was also sufficient evidence to support

Jennifer Murphy’s convictions on Counts 23-25, which

charged her with knowingly making a false, material

statement in the Murphys’ jointly filed tax returns in

violation of 26 U.S.C. § 7206(l). More specifically, these

counts alleged falsehoods in line 17 of the Murphys’

personal income tax returns for the 2013, 2014, and 2015

tax years—the line on which the Murphys reported

income from the clinic in which they were both partners.

The evidence showed that those income figures should

have been materially higher, but that they were not

because Jennifer Murphy intentionally diverted cash

from the clinic coffers—to her nonprofit’s account and to

her personal accounts—where it would not be included in

clinic income or subject to tax. Jennifer Murphy also

directed kickback payments from sales representatives

into the nonprofit’s account—rather than into the clinic’s

business account—where it would not be included in clinic

income or subject to tax.

In order to sustain a conviction for this charge, the

Government had to prove that: (1) Jennifer Murphy made

or caused to be made a tax return for the tax year

charged; (2) the tax return for that year contained a

written declaration that it was made under the penalties

of perjury; (3) when Jennifer Murphy made or helped to

make the tax return, she knew it contained false, material

information; (4) when Jennifer Murphy did so, she

intended to do something she knew violated the law; and

(5) the false matter in the tax return related to a material

57a

statement. Jennifer Murphy argues that she is entitled to

a judgment of acquittal because the evidence did not

support each of these elements. Her arguments fail.

The first element is that Jennifer Murphy made or

caused to be made a tax return. Jennifer Murphy argues

that the Government did not present sufficient evidence

of this because no witness testified that she made these

tax returns and that instead, the tax returns could have

been filled out by the Murphys’ tax preparer, Williard

Tapscott, without input or oversight from Jennifer

Murphy, or that they could have been prepared based off

of information wholly provided by Dr. Murphy, not

Jennifer Murphy.

However, there was sufficient evidence for the jury to

find that Jennifer Murphy made the tax returns at issue.

The tax returns were in evidence; IRS Special Agent

Torain testified that they were filed with the IRS; they

were electronically signed by both Dr. Murphy and

Jennifer Murphy; and also in evidence were copies of

those tax returns with a “1B” Bates stamp at the bottom,

which an FBI evidence custodian explained meant they

were taken from the Murphys’ clinic. Those tax returns

from the Murphys’ clinic also included electronic

authorization forms by Jennifer Murphy, evidence that

Jennifer Murphy authorized her electronic signature as it

appeared on the documents filed with the IRS.

The second element is that the returns were made

under penalty of perjury. Jennifer Murphy argues that

the Government presented no evidence that she actually

signed the tax returns, noting that the returns contained

asterisks indicating that they were signed electronically

and that Agent Torain acknowledged that such electronic

signatures can be created by a tax preparer. However,

sufficient evidence was presented that she electronically

58a

signed under penalty of perjury, considering that the tax

returns themselves contain that avowal.

The third element is that Jennifer Murphy knew the

tax returns contained false information. Jennifer Murphy

argues that the Government did not reasonably prove

what the clinic’s income was for the years in question, that

it was inaccurately recorded, or that she knew about it.

The evidence refutes these claims. Agent Torain testified

about line 17 of the Murphys’ tax returns for the relevant

years, explaining that partnerships reported partnership

income on Forms 1065, and that income flowed through to

the personal tax returns of the partners, where it would

be reportable income subject to income tax. He explained

that, if the partnership income was understated, line 17 of

the partners’ tax returns would also be understated. He

explained that income to nonprofits would not be subject

to tax— those organizations filed Forms 990 but their

income was non-taxable. Agent Torain confirmed that, in

addition to the Murphys’ personal joint tax returns for

2013, 2014, and 2015, the CMEO’s Forms 990 and the

clinic’s partnership tax returns had been filed with the

IRS for those years. Agent Torain also described the

evidence that the clinic’s partnership income, and thus

line 17 of the Murphys’ tax returns, was materially

understated. He explained that, as part of the

investigation, records were subpoenaed for accounts

associated with Dr. Murphy and Jennifer Murphy and the

clinic; that those records were reviewed by agents,

including himself; that the bank records for the clinic bank

accounts would show income to the clinic; that he had also

reviewed the records of and prepared summary charts for

the CMEO account and Jennifer Murphy’s personal bank

accounts; and that these other accounts reflected

significant additional influxes of cash during 2013, 2014,

and 2015. Agent Torain testified that these additional

59a

amounts of cash were material, and that they added up to

approximately $750,000 more in income for 2013, 2014,

and 2015 than the clinic bank account records reflected.

Other evidence at trial corroborated the

documentary evidence that large sums of clinic cash were

not deposited into the clinic bank account and were not

reflected in the amount of clinic income reported in its

partnership tax returns—and correspondingly line 17 of

the Murphys’ personal tax returns—for the relevant tax

years. The jury heard that Jennifer Murphy handled

copays at the front desk, and that she would sometimes

put cash in her purse. Ruth Ann Rubbo testified about the

garbage bag of cash in Jennifer Murphy’s bathroom.

Sharon Luttrell testified that Jennifer Murphy gave her

cash and asked her to buy CMEO cashier’s checks for

Jennifer Murphy. The bank records for the CMEO

account and Jennifer Murphy’s personal accounts showed

large cash deposits consistent with this testimony, from

which the jury was free to infer that Jennifer Murphy had

diverted cash from the clinic’s accounts to her own.

The evidence was likewise sufficient that Jennifer

Murphy knew the clinic income as reported on line 17 of

her income tax returns was understated. The jury

reasonably made this inference from the evidence that she

took cash from the clinic, told others to convert clinic cash

into cashier’s checks payable to a nonprofit that would not

be taxed, and solicited payments, i.e., kickbacks, from

sales representatives, pharmacists, and nerve conduction

testing vendors in the form of CMEO “donations.”

The fourth element is that Jennifer Murphy intended

to do something she knew violated the law. There was

substantial evidence of this, including in the form of

evidence that Jennifer Murphy concealed how she took

money from the clinic. She gave Keith Turner and Sharon

60a

Luttrell cash to buy cashier’s checks for her, made

payable to the CMEO. The jury was entitled to draw the

reasonable inference that Jennifer Murphy used cashier’s

checks and cash deposits to conceal the taxable nature of

the cash—to reframe taxable clinic proceeds as

nontaxable charitable gifts. That inference received

further support from Sharon Luttrell’s testimony that

Jennifer Murphy gave her specific instructions to lie

about the source of the cash for the cashier’s checks

Luttrell bought for her. Sharon Luttrell testified that on

multiple occasions Jennifer Murphy gave her cash, told

her to use it to buy certified cashier’s checks made out to

the CMEO, and bring it back to her. Jennifer Murphy

then told Luttrell that, if she was ever asked about the

checks, Luttrell should “just say it’s [my] money, it’s not

going to hurt anything. And you can take it off your

income taxes, as a donation.”

The fifth element is that the false matter in the tax

return related to a material statement. As Agent Torain

testified, there was a “material” discrepancy between (1)

clinic income as reflected in the clinic bank account

records and the Murphys’ income tax returns, and (2)

clinic income considering the large cash deposits into

Jennifer Murphy’s personal accounts and the CMEO

account. The jury reasonably concluded that a $750,000

discrepancy in the Murphys’ reported taxable income was

material. The evidence therefore supported the jury’s

verdict on Counts 23-25.

E. Jennifer Murphy’s argument that she is

entitled to a new trial on all counts based on

the “prejudicial spillover” from her conviction

on Count 1

Jennifer Murphy argues that a new trial is required

on all of the remaining counts—the non-controlled

61a

substances offenses—because all of her convictions were

obtained as a result of “prejudicial spillover” from Count

1.4 The case relied upon by Jennifer Murphy, United

States v. Prosperi, 201 F.3d 1335 (11th Cir. 2000), shows

that prejudicial spillover only applies in cases where some

counts are dismissed after trial, and the court must decide

whether a new trial is needed on the remaining counts. Id.

at 1345 (explaining that the court “must consider whether

the convictions were the result of prejudicial spillover:

that is, was there evidence (1) that would not have been

admitted but for the dismissed charges and (2) that was

improperly relied on by the jury in their consideration of

the remaining charges”). Indeed, if some counts are

dismissed, there is a possibility that the jury heard

evidence that, without those counts, it would not have

heard. Here, her argument fails because it is premised

upon the assumption that this Court will vacate her

conviction on Count 1, the drug conspiracy conviction,

based upon Ruan. However, as discussed above, since no

error occurred with regard to Count 1 and it is not due to

be vacated, no new trial could possibly be required for

other counts due to any evidence heard by the jury on

Count 1.

F. Jennifer Murphy’s argument that the Court

erroneously denied her motion for a mistrial

after Government witness Willard Tapscott

invoked his right to remain silent after

testifying

The Court now turns to Jennifer Murphy’s argument

that she deserves a new trial due to the Court’s denial of

her mistrial motion based upon the trial testimony of

4

Dr. Murphy joins in this argument.

62a

Government witness Willard Tapscott, the Murphys’

long-time tax preparer.

The Government called Mr. Tapscott to testify about

his preparation of the Murphys’ tax returns. (Trial

Transcript Vol. VI at 190-200 (direct examination).) Early

into his testimony, the Court determined that he should

have counsel appointed to ensure that he was aware of any

incriminating implications of his testimony. (Id. at 20008.) Before he was stopped by this Court, Mr. Tapscott

had testified that he has been the Murphys’ friend and

accountant for approximately 20 years, that he also

worked as a bookkeeper for the clinic, that he prepared

personal tax returns for the Murphys, including for the

clinic and for CMEO, that members of his family served

as officers of CMEO, and that Jennifer Murphy

maintained the records for CMEO and “controlled”

CMEO. He recounted that he once purchased a $7,500

cashier’s check payable to CMEO with a paper bag of cash

provided by Jennifer Murphy. He also stated that he

prepared a Form 990 for the year 2014 for the CMEO

using information provided by Jennifer Murphy.

During the sidebar with the lawyers after the Court

stopped him from testifying, the Government stated that

Mr. Tapscott did not have a lawyer, that he had not been

warned about the possibility of making incriminating

statements, but that, in their view, Mr. Tapscott bore no

culpability related to the drug conspiracy charged in this

case. The Government further stated that they expected

Mr. Tapscott to testify that he prepared the 2013, 2014,

and 2015 tax returns for the clinic based off of information

that he received from the Murphys, but that, in 2018, after

the Government’s investigation became known, he filed

amendments to the returns, assessing it with additional

income after learning that Jennifer Murphy had diverted

63a

cash from the clinic into the CMEO and other bank

accounts. Id. at 201-02.

Mr. Tapscott was excused from the stand, the trial

continued, and the next morning a lawyer was appointed

for Mr. Tapscott. The lawyer informed the Court and the

parties that Mr. Tapscott would assert his Fifth

Amendment right not to answer questions. Jennifer

Murphy’s counsel orally asked for a mistrial based on Mr.

Tapscott’s testimony, but the Court declined to grant a

mistrial. The Court excused Mr. Tapscott from the trial,

stated that it would direct the jury to disregard his

testimony, and directed the Government not to argue in

its closing argument about the cashier’s check Mr.

Tapscott bought. When the jury was brought back in, the

Court gave the following instruction:

Yesterday we had a witness testify by the name of

Willard Tapscott, he was the individual that said he

did accounting work. You are instructed that you

need to disregard and shall disregard all of his

testimony. Okay? So, you will not use anything that

he said for any reason. Just like it didn’t happen.

Anybody not able to disregard his testimony? Raise

your hand. Let the record reflect all of them indicated

they will disregard the testimony.

(Trial Transcript Vol. VII at 31-32.) The Court reiterated

that instruction later the same day:

Ladies and gentlemen, you all had a question about

who was the individual that I told you to disregard his

testimony. His name was Willard Tapscott, he’s about

seventy odd years old, white guy, retired from the

post office, and then talked about whatever and then

he testified. Okay. That’s who I’m talking about.

Everybody understand who I’m saying? We’re going

to go ahead and call your first witness.

64a

(Id. at 96.)

Jennifer Murphy again argues that a mistrial is

warranted, on at least the three tax fraud counts (Counts

23-25). In support, she focuses on Mr. Tapscott’s

statement that he prepared Forms 990 for the CMEO

using documents that she provided. Her theory is that Mr.

Tapscott’s testimony that she was directly involved in his

preparation of the CMEO’s tax filings suggested to the

jury that she would have also been directly involved in his

preparation of the Murphys’ personal tax returns,

including for the clinic in 2013, 2014, and 2015, the years

in which it was alleged that they underrepresented their

income. She argues that this would have been the only

evidence linking her to the substantive tax fraud charges.

Jennifer Murphy complains that she was not able to cross

examine Mr. Tapscott and that, although the Court issued

a limiting instruction to the jury, the damage had already

been done.

The trial court has discretion whether to grant a

mistrial because it “is in the best position to evaluate the

prejudicial effect of a statement or evidence on the jury.”

United States v. Bender, 290 F.3d 1279, 1284 (11th Cir.

2002) (cleaned up). “When a district court gives a curative

instruction, the reviewing court reverses only if the

evidence is so highly prejudicial as to be incurable by the

trial court’s admonition.” Id. (cleaned up). Such a level of

prejudice effect exists where there is “a significant

probability . . . that . . . the stricken statement had a

substantial impact upon the verdict of the jury.” United

States v. Arenas-Granada, 487 F.2d 858, 859 (5th Cir.

1973).

“Generally, it is improper for either the government

or the defense to call a witness for the purpose of having

the witness invoke the Fifth Amendment privilege.”

65a

United States v. Feliciano-Francisco, 701 F. App’x 808,

813 (11th Cir. 2017). “Such testimony has ‘dubious

probative value and high potential for prejudice,’ and the

district court has discretion to exclude it.” Id. at 813-14

(quoting United States v. Lacouture, 495 F.2d 1237, 1240

(5th Cir. 1974)). Although the Court struck the testimony

of Mr. Tapscott, the Court is convinced that Jennifer

Murphy suffered no prejudice from Mr. Tapscott’s brief

direct testimony. The testimony was not harmful to

Jennifer Murphy, and even if it was, the Court’s limiting

instructions cured any error. The testimony was not

harmful because the CMEO’s Forms 990 were not the

subject of the three tax fraud charges in this case. In any

event, there was ample other evidence of Jennifer

Murphy’s guilt on the three tax fraud charges

independent of Mr. Tapscott’s testimony, as discussed

above in section III.D.2.iv. Indeed, the two documents

that were shown to Mr. Tapscott were already in

evidence. Further, there is a well-recognized presumption

that “juries follow the instructions they are given.”

United States v. Townsend, 630 F.3d 1003, 1014 (11th Cir.

2011). The Court sees no error in the handling of this

issue.

G. Jennifer Murphy’s argument that the

cumulative effect of the individual errors in

this case warrants a new trial

Finally, the Court addresses Jennifer Murphy’s

argument that she is entitled to a new trial based upon the

cumulative effect of this Court’s errors. “The cumulative

error doctrine provides that an aggregation of nonreversible errors (i.e., plain errors failing to necessitate

reversal and harmless errors) can yield a denial of the

constitutional right to a fair trial, which calls for reversal.”

United States v. Capers, 708 F.3d 1286, 1299 (11th Cir.

2013) (cleaned up). “The harmlessness of cumulative error

66a

is determined by conducting the same inquiry as for

individual error—courts look to see whether the

defendant’s substantial rights were affected.” Id. (cleaned

up). Jennifer Murphy has not identified any errors here

that would warrant the application of this doctrine. She

also has “failed to demonstrate, or offer any explanation,

for how the aggregate effect of [any] errors substantially

influenced the outcome of [her] trial, as required to

establish that cumulative error rendered [her] trial

unfair.” Id. Her cumulative-error claim therefore fails.

IV. Conclusion

For the reasons stated in this opinion, the following

rulings are hereby made:

1) Jennifer Murphy’s motion for new trial and

acquittal (doc. 180) is DENIED;

2) Dr. Murphy’s motion for new trial (doc. 181) is

DENIED;

3) Jennifer Murphy’s supplemental motion (doc. 201)

is DENIED;5

4) Dr. Murphy’s supplemental motion (doc. 202) is

GRANTED IN PART and DENIED IN PART.

Insofar as the motion requests that Dr. Murphy’s

conviction on Count 3 be vacated, the motion is

GRANTED. Insofar as Mark Murphy requests all

other relief, the motion is DENIED.

Jennifer Murphy also filed a “Renewed Motion for Judgment of

Acquittal and Supplemental Motion for New Trial; or, Alternatively,

Motion for Leave to File Same; and Motion to Set Briefing Schedule,”

(doc. 193) that the Court granted insofar as she requested leave to file

a supplemental brief. To the extent that the motion requests

substantive relief, it is DENIED.

5

67a

Defendant Mark Murphy’s conviction on Count 3 is

hereby VACATED and this cause shall proceed to

sentencing.

DONE and ORDERED on February 17, 2023.

L. Scott Coogler

United States District Judge

160704

APPENDIX C

[FILED: MARCH 17, 2025]

IN THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 23-10781

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARK MURPHY,

JENNIFER MURPHY,

Defendants-Appellants.

Appeals from the United States District Court

For the Northern District of Alabama

D.C. Docket No. 5:20-cr-00291-LSC-SGC-1

ON PETITION(S) FOR REHEARING

PETITION(S) FOR REHEARING EN BANC

AND

Before JORDAN, NEWSOM, and BRASHER, Circuit Judges.

PER CURIAM:

The Petition for Rehearing En Banc is DENIED, no

judge in regular active service on the Court having

requested that the Court be polled on rehearing en banc.

FRAP 40. The Petition for Panel Rehearing also is

DENIED. FRAP 40.

(68a)

APPENDIX D

[FILED: MARCH 8, 2023]

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ALABAMA

**AMENDED**

JUDGMENT IN A

CRIMINAL

CASE

(For Offenses

Committed On or

After November 1,

1987)

UNITED STATES OF

AMERICA

v.

MARK MURPHY

Defendant.

Case No. 5:20-CR291-LSC-SGC-001

The defendant, MARK MURPHY, was represented

by Edward Yarbrough and Justin Adams.

At the direction of the Court, Count 3ss is

VACATED. The defendant has been found not guilty on

count 2ss and 4ss, and is discharged as to such counts.

The defendant was found guilty on counts 1s, 5ss, 6ss,

7ss, 8ss, 9ss, 10ss, 11ss, and 22ss after a plea of not guilty.

Accordingly, the defendant is adjudged guilty of the

following counts, involving the indicated offenses:

(69a)

70a

Title & Section

Nature of Offense

Count

Number(s)

21 U.S.C. § 846

CONSPIRACY TO

DISTRIBUTE

CONTROLLED

SUBSTANCE mixture

containing Fentanyl,

Oxycodone, Hydrocodone,

Alprazolam, Clonazepam

and Carisoprodol

1s

18 U.S.C. § 1349

ATTEMPT AND

CONSPIRACY TO

COMMIT

HEALTHCARE FRAUD

5ss

18 U.S.C. §§

1347 & 2

HEALTH CARE FRAUD

6ss-10ss

18 U.S.C. § 371

CONSPIRACY TO

DEFRAUD THE

UNITED STATES

11ss

42 U.S.C. §

1320a-7b(b)(l)

and 18 U.S.C. § 2

ACTS INVOLVING

FEDERAL HEALTH

CARE PROGRAMS ILLEGAL

RENUMERATIONS

22ss

71a

As pronounced on March 6, 2023, the defendant is

sentenced as provided in pages 2 through 6 of this

Judgment. The sentence is imposed pursuant to the

Sentencing Reform Act of 1984.

It is ordered that the defendant shall pay to the

United States a special assessment of $900.00, for counts

1s, 5ss, 6ss, 7ss, 8ss, 9ss, 10ss, 11ss, and 22ss, which shall

be due immediately.

It is further ordered that the defendant shall notify

the United States Attorney for this district within 30 days

of any change of name, residence, or mailing address until

all fines, restitution, costs, and special assessments

imposed by this Judgment are fully paid.

Done this 8th day of March, 2023.

s/ L. Scott Coogler

L. Scott Coogler

United States District Judge

**Amended as to Page 1 to correct statute description

of Count 5ss

**Amended as to Page 6 to include forfeiture

72a

IMPRISONMENT

The defendant is hereby committed to the custody of

the United States Bureau of Prisons to be imprisoned for

a term of TWO HUNDRED FORTY (240) months as to

Count 1s, concurrent with all other Counts. ONE

HUNDRED TWENTY (120) months as to Counts 5ss

and 6ss, separately and to be served consecutively to each

other. ONE HUNDRED TWENTY (120) months as to

Counts 7ss, 8ss, 9ss, 10ss, and 22ss, separately and to be

served concurrently with each other and Count 5ss.

SIXTY (60) months as to Count 11ss, to be served

concurrently with Count 5ss for a TOTAL TERM of

TWO HUNDRED FORTY (240) months.

The Court makes the following recommendations to

the Bureau of Prisons: That the defendant be housed in a

facility close to Decatur, AL.

The defendant is remanded to the custody of the

United States Marshal.

RETURN

I have executed this Judgment as follows:

Defendant delivered on __________________ to

__________________ at ________________________,

with a certified copy of this Judgment.

____________________________________

UNITED STATES MARSHAL

____________________________________

By

DEPUTY MARSHAL

73a

SUPERVISED RELEASE

Upon release from imprisonment, the defendant shall

be on supervised release for a term of 120 months as to

Count 1s and 36 months as to Counts 5ss-10ss, 11ss, and

22ss, to be served concurrently with each other. The

Probation Office shall provide the defendant with a copy

of the standard conditions and any special conditions of

supervised release.

STANDARD CONDITIONS OF SUPERVISED

RELEASE

While the defendant is on supervised release

pursuant to this Judgment:

1.

You must report to the probation office in the federal

judicial district where you are authorized to reside

within 72 hours of the time you were sentenced (if

placed on probation) or released from custody (if

supervised release is ordered), unless the probation

officer instructs you to report to a different probation

office or within a different time frame.

2.

After initially reporting to the probation office, you

will receive instructions from the court or the

probation officer about how and when to report to the

probation officer, and you must report to the

probation officer as instructed.

3.

You must not commit another federal, state, or local

crime.

4.

You must not own, possess, or have access to a

firearm, ammunition, destructive device, or

dangerous weapon (i.e., anything that was designed,

or was modified, for the specific purpose of causing

bodily injury or death to another person, such as

74a

nunchakus or tasers). Revocation of supervision is

mandatory for possession of a firearm.

5.

You must not unlawfully possess a controlled

substance.

6.

You must refrain from any unlawful use of a

controlled substance. You must submit to one drug

test within 15 days of release from imprisonment and

at least two periodic drug tests thereafter, as

determined by the court. You must contribute to the

cost of drug testing unless the probation officer

determines you do not have the ability to do so. Based

upon a court order entered during the period of

supervision for good cause shown or resulting from a

positive drug test or evidence of excessive use of

alcohol, you shall be placed in the Substance Abuse

Intervention Program (SAIP) (or comparable

program in another district).

7.

You must not knowingly leave the federal judicial

district where you are authorized to reside without

first getting permission from the court or the

probation officer.

8.

You must follow the instructions of the probation

officer related to the conditions of supervision.

9.

You must answer truthfully the questions asked by

the probation officer.

10. You must live at a place approved by the probation

officer. If you plan to change where you live or

anything about your living arrangements (such as the

people you live with), you must notify the probation

officer at least 10 days before the change. If notifying

the probation officer at least 10 days in advance is not

possible due to unanticipated circumstances, you

must notify the probation officer within 72 hours of

becoming aware of a change or expected change. (If

75a

you have been convicted of a crime of violence or a

drug trafficking offense, the probation office is

responsible for complying with the notice provisions

of 18 U.S.C. § 4042(b) and (c) if you change your

residence.)

11. You must allow the probation officer to visit you at

any time at your home or elsewhere, and you must

permit the probation officer to take any items

prohibited by the conditions of your supervision that

he or she observes in plain view.

12. You must work full time (at least 30 hours per week)

at a lawful type of employment, unless the probation

officer excuses you from doing so. If you do not have

full-time employment, you must try to find full-time

employment, unless the probation officer excuses you

from doing so. If you plan to change where you work

or anything about your work (such as the position or

the job responsibilities), you must notify the

probation officer at least 10 days before the change.

If notifying the probation officer at least 10 days in

advance is not possible due to unanticipated

circumstances, you must notify the probation officer

within 72 hours of becoming aware of a change or

expected change.

13. You must not communicate or interact with someone

you know is engaged in criminal activity. If you know

someone has been convicted of a felony, you must not

knowingly communicate or interact with that person

without first getting the permission of the probation

officer.

14. If you are arrested or questioned by a law

enforcement officer, you must notify the probation

officer within 72 hours.

76a

15. You must not act or make any agreement with a law

enforcement agency to act as a confidential human

source or informant without first getting the

permission of the court.

16. If the probation officer determines that you pose a

risk to another person (including an organization),

the probation officer may require you to notify the

person about the risk, and you must comply with that

instruction. The probation officer may contact the

person and confirm that you have notified the person

about the risk.

17. You must fully and truthfully disclose financial

information as requested by the probation officer

related to the conditions of supervision. Financial

information may include, but is not limited to,

authorization for release of credit information, bank

records, income tax returns, documentation of income

and expenses, and other financial information

regarding personal or business assets, debts,

obligations, and/or agreements in which the

defendant has a business involvement or financial

interest.

18. You must support all dependents.

CONTINUATION OF STANDARD CONDITIONS OF

SUPERVISED RELEASE

19. You must comply with the probation office's Policies

and

Procedures

Concerning

Court-Ordered

Financial Obligations to satisfy the balance of any

monetary obligation resulting from the sentence

imposed in the case. Further, you must notify the

probation officer of any change in your economic

circumstances that might affect your ability to pay a

fine, restitution, or assessment fee. If you become

77a

more than 60 days delinquent in payments of financial

obligations, you may be: (a) required to attend a

financial education or employment preparation

program under the administrative supervision of the

probation officer; (b) placed on home detention

subject to location monitoring for a maximum period

of 90 days under the administrative supervision of the

probation officer (and you must pay the cost of

monitoring unless the probation officer determines

you do not have the ability to do so); and/or (c) placed

in a community corrections center for up to 180 days

under the administrative supervision of the probation

officer (and you must pay the cost of subsistence

unless the probation officer determines you do not

have the ability to do so).

SPECIAL CONDITIONS OF SUPERVISION

While the defendant is on supervised release

pursuant to this Judgment:

1.

You must cooperate in the collection of DNA under

the administrative supervision of the probation

officer.

2.

The requirement that you submit to mandatory drug

testing is suspended based upon the court's

determination that you pose a low risk of future

substance abuse.

3.

You must make restitution in accordance with 18

U.S.C. §§ 2248, 2259, 2264, 2327, 3663, 3663A, and

3664.

4.

You must not incur any new debts (other than normal

debts for existing utilities, rental expenses, or

mortgage payments), increase existing credit lines,

or open any new lines of credit without the permission

78a

approval of the probation officer unless and until all

court-ordered financial obligations have been paid in

full. New debt includes contracts which obligate

payments, credit agreements, and loans, including

those with friends and family members.

5.

You must maintain a single checking and/or savings

account in your own legal name. You must deposit all

personal income and monetary gains into the

account(s) and must pay all personal expenses from

this account.

RESTITUTION AND FORFEITURE

RESTITUTION

The Court orders restitution in the amount of

$52,728,073.84 as set out in the order entered

contemporaneously in this case.

FORFEITURE

The defendant is ordered to forfeit the following

property to the United States:

See Order of Forfeiture (Doc. 179).

APPENDIX E

[FILED: MARCH 8, 2023]

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ALABAMA

**AMENDED**

JUDGMENT IN A

CRIMINAL

CASE

(For Offenses

Committed On or

After November 1,

1987)

UNITED STATES OF

AMERICA

v.

JENNIFER MURPHY

Defendant.

Case No. 5:20-CR291-LSC-SGC-002

The defendant, JENNIFER MURPHY, was

represented by Clayton Tartt and Suzanne Norman.

The defendant was found guilty on counts 1ss, 5ss,

6ss, 7ss, 8ss, 9ss, 10ss, 11ss, 22ss, 23ss, 24ss, and 25ss after

a plea of not guilty. Accordingly, the defendant is

adjudged guilty of the following counts, involving the

indicated offenses:

(79a)

80a

Title & Section

Nature of Offense

Count

Number(s)

21 U.S.C. § 846

CONSPIRACY TO

DISTRIBUTE

CONTROLLED

SUBSTANCE mixture

containing Fentanyl,

Oxycodone, Hydrocodone,

Alprazolam, Clonazepam

and Carisoprodol

1ss

18 U.S.C. § 1349

ATTEMPT AND

CONSPIRACY TO

COMMIT

HEALTHCARE FRAUD

5ss

18 U.S.C. §§

1347 & 2

HEALTH CARE FRAUD

6ss-10ss

18 U.S.C. § 371

CONSPIRACY TO

DEFRAUD THE

UNITED STATES

11ss

42 U.S.C. §

1320a-7b(b)(l)

and 18 U.S.C. § 2

ACTS INVOLVING

FEDERAL HEALTH

CARE PROGRAMS ILLEGAL

RENUMERATIONS

22ss

26 U.S.C. §

7206(1) & 18

U.S.C. § 2

FRAUD AND FALSE

STATEMENTS

23ss-25ss

81a

As pronounced on March 6, 2023, the defendant is

sentenced as provided in pages 2 through 6 of this

Judgment. The sentence is imposed pursuant to the

Sentencing Reform Act of 1984.

It is ordered that the defendant shall pay to the

United States a special assessment of $1,200.00, for counts

1ss, 5ss, 6ss, 7ss, 8ss, 9ss, 10ss, 11ss, 22ss, 23ss, 24ss, and

25ss, which shall be due immediately.

It is further ordered that the defendant shall notify

the United States Attorney for this district within 30 days

of any change of name, residence, or mailing address until

all fines, restitution, costs, and special assessments

imposed by this Judgment are fully paid.

Done this 8th day of March, 2023.

s/ L. Scott Coogler

L. Scott Coogler

United States District Judge

**Amended as to Page 1 to correct statute description

of Count 5ss

**Amended as to Page 6 to include forfeiture

82a

IMPRISONMENT

The defendant is hereby committed to the custody of

the United States Bureau of Prisons to be imprisoned for

a term of TWO HUNDRED FORTY (240) months as to

Count 1ss, concurrent with all other Counts. ONE

HUNDRED TWENTY (120) months as to Counts 5ss

and 6ss, separately and to be served consecutively to each

other. ONE HUNDRED TWENTY (120) months as to

Counts 7ss, 8ss, 9ss, 10ss, and 22ss, separately and to be

served concurrently with each other and Count 5ss.

SIXTY (60) months as to Count 11ss, to be served

concurrently with Count 5ss. THIRTY-SIX (36) months

as to Counts 23ss, 24ss, and 25ss, separately and to be

served concurrently with each other and Count 5ss for a

TOTAL TERM of TWO HUNDRED FORTY (240)

months.

The Court makes the following recommendations to

the Bureau of Prisons: That the defendant be housed in a

facility close to Lewisburg, TN.

The defendant is remanded to the custody of the

United States Marshal.

RETURN

I have executed this Judgment as follows:

Defendant delivered on __________________ to

__________________ at ________________________,

with a certified copy of this Judgment.

____________________________________

UNITED STATES MARSHAL

____________________________________

By

DEPUTY MARSHAL

83a

SUPERVISED RELEASE

Upon release from imprisonment, the defendant shall

be on supervised release for a term of 120 months as to

Counts 1ss, 36 months as to Counts 5ss-11ss and 22ss, and

12 months as to Counts 23ss-25ss. The Probation Office

shall provide the defendant with a copy of the standard

conditions and any special conditions of supervised

release.

STANDARD CONDITIONS OF SUPERVISED

RELEASE

While the defendant is on supervised release

pursuant to this Judgment:

1.

You must report to the probation office in the federal

judicial district where you are authorized to reside

within 72 hours of the time you were sentenced (if

placed on probation) or released from custody (if

supervised release is ordered), unless the probation

officer instructs you to report to a different probation

office or within a different time frame.

2.

After initially reporting to the probation office, you

will receive instructions from the court or the

probation officer about how and when to report to the

probation officer, and you must report to the

probation officer as instructed.

3.

You must not commit another federal, state, or local

crime.

4.

You must not own, possess, or have access to a

firearm, ammunition, destructive device, or

dangerous weapon (i.e., anything that was designed,

or was modified, for the specific purpose of causing

bodily injury or death to another person, such as

84a

nunchakus or tasers). Revocation of supervision is

mandatory for possession of a firearm.

5.

You must not unlawfully possess a controlled

substance.

6.

You must refrain from any unlawful use of a

controlled substance. You must submit to one drug

test within 15 days of release from imprisonment and

at least two periodic drug tests thereafter, as

determined by the court. You must contribute to the

cost of drug testing unless the probation officer

determines you do not have the ability to do so. Based

upon a court order entered during the period of

supervision for good cause shown or resulting from a

positive drug test or evidence of excessive use of

alcohol, you shall be placed in the Substance Abuse

Intervention Program (SAIP) (or comparable

program in another district).

7.

You must not knowingly leave the federal judicial

district where you are authorized to reside without

first getting permission from the court or the

probation officer.

8.

You must follow the instructions of the probation

officer related to the conditions of supervision.

9.

You must answer truthfully the questions asked by

the probation officer.

10. You must live at a place approved by the probation

officer. If you plan to change where you live or

anything about your living arrangements (such as the

people you live with), you must notify the probation

officer at least 10 days before the change. If notifying

the probation officer at least 10 days in advance is not

possible due to unanticipated circumstances, you

must notify the probation officer within 72 hours of

becoming aware of a change or expected change. (If

85a

you have been convicted of a crime of violence or a

drug trafficking offense, the probation office is

responsible for complying with the notice provisions

of 18 U.S.C. § 4042(b) and (c) if you change your

residence.)

11. You must allow the probation officer to visit you at

any time at your home or elsewhere, and you must

permit the probation officer to take any items

prohibited by the conditions of your supervision that

he or she observes in plain view.

12. You must work full time (at least 30 hours per week)

at a lawful type of employment, unless the probation

officer excuses you from doing so. If you do not have

full-time employment, you must try to find full-time

employment, unless the probation officer excuses you

from doing so. If you plan to change where you work

or anything about your work (such as the position or

the job responsibilities), you must notify the

probation officer at least 10 days before the change.

If notifying the probation officer at least 10 days in

advance is not possible due to unanticipated

circumstances, you must notify the probation officer

within 72 hours of becoming aware of a change or

expected change.

13. You must not communicate or interact with someone

you know is engaged in criminal activity. If you know

someone has been convicted of a felony, you must not

knowingly communicate or interact with that person

without first getting the permission of the probation

officer.

14. If you are arrested or questioned by a law

enforcement officer, you must notify the probation

officer within 72 hours.

86a

15. You must not act or make any agreement with a law

enforcement agency to act as a confidential human

source or informant without first getting the

permission of the court.

16. If the probation officer determines that you pose a

risk to another person (including an organization),

the probation officer may require you to notify the

person about the risk, and you must comply with that

instruction. The probation officer may contact the

person and confirm that you have notified the person

about the risk.

17. You must fully and truthfully disclose financial

information as requested by the probation officer

related to the conditions of supervision. Financial

information may include, but is not limited to,

authorization for release of credit information, bank

records, income tax returns, documentation of income

and expenses, and other financial information

regarding personal or business assets, debts,

obligations, and/or agreements in which the

defendant has a business involvement or financial

interest.

18. You must support all dependents.

CONTINUATION OF STANDARD CONDITIONS OF

SUPERVISED RELEASE

19. You must comply with the probation office's Policies

and

Procedures

Concerning

Court-Ordered

Financial Obligations to satisfy the balance of any

monetary obligation resulting from the sentence

imposed in the case. Further, you must notify the

probation officer of any change in your economic

circumstances that might affect your ability to pay a

fine, restitution, or assessment fee. If you become

87a

more than 60 days delinquent in payments of financial

obligations, you may be: (a) required to attend a

financial education or employment preparation

program under the administrative supervision of the

probation officer; (b) placed on home detention

subject to location monitoring for a maximum period

of 90 days under the administrative supervision of the

probation officer (and you must pay the cost of

monitoring unless the probation officer determines

you do not have the ability to do so); and/or (c) placed

in a community corrections center for up to 180 days

under the administrative supervision of the probation

officer (and you must pay the cost of subsistence

unless the probation officer determines you do not

have the ability to do so).

SPECIAL CONDITIONS OF SUPERVISION

While the defendant is on supervised release

pursuant to this Judgment:

1.

You must cooperate in the collection of DNA under

the administrative supervision of the probation

officer.

2.

The requirement that you submit to mandatory drug

testing is suspended based upon the court's

determination that you pose a low risk of future

substance abuse.

3.

You must make restitution in accordance with 18

U.S.C. §§ 2248, 2259, 2264, 2327, 3663, 3663A, and

3664.

4.

You must not incur any new debts (other than normal

debts for existing utilities, rental expenses, or

mortgage payments), increase existing credit lines,

or open any new lines of credit without the permission

88a

approval of the probation officer unless and until all

court-ordered financial obligations have been paid in

full. New debt includes contracts which obligate

payments, credit agreements, and loans, including

those with friends and family members.

5.

You must maintain a single checking and/or savings

account in your own legal name. You must deposit all

personal income and monetary gains into the

account(s) and must pay all personal expenses from

this account.

6.

Restitution to IRS in the amount of $377,132.00

RESTITUTION AND FORFEITURE

RESTITUTION

The Court orders restitution in the amounts of

$52,728,073.84 and $377,132.00 as set out in the order

entered contemporaneously in this case.

FORFEITURE

The defendant is ordered to forfeit the following

property to the United States:

See Order of Forfeiture (Doc. 179).

APPENDIX F

21 U.S.C. § 841. Prohibited acts A

(a) Unlawful acts

Except as authorized by this subchapter, it shall be

unlawful for any person knowingly or intentionally(1) to manufacture, distribute, or dispense, or possess

with intent to manufacture, distribute, or dispense, a

controlled substance; or

(2) to create, distribute, or dispense, or possess with

intent to distribute or dispense, a counterfeit substance.

(b) Penalties

Except as otherwise provided in section 849, 859, 860,

or 861 of this title, any person who violates subsection (a)

of this section shall be sentenced as follows:

(1)(A) In the case of a violation of subsection (a) of this

section involving(i) 1 kilogram or more of a mixture or substance

containing a detectable amount of heroin;

(ii) 5 kilograms or more of a mixture or substance

containing a detectable amount of(I) coca leaves, except coca leaves and extracts

of coca leaves from which cocaine, ecgonine, and

derivatives of ecgonine or their salts have been

removed;

(II) cocaine, its salts, optical and geometric

isomers, and salts of isomers;

(III) ecgonine, its derivatives, their salts,

isomers, and salts of isomers; or

(IV) any compound, mixture, or preparation

which contains any quantity of any of the

(89a)

90a

substances referred to in subclauses (I) through

(III);

(iii) 280 grams or more of a mixture or substance

described in clause (ii) which contains cocaine base;

(iv) 100 grams or more of phencyclidine (PCP) or 1

kilogram or more of a mixture or substance

containing a detectable amount of phencyclidine

(PCP);

(v) 10 grams or more of a mixture or substance

containing a detectable amount of lysergic acid

diethylamide (LSD);

(vi) 400 grams or more of a mixture or substance

containing a detectable amount of N-phenyl-N- [ 1- (

2-phenylethyl ) -4-piperidinyl ] propanamide or 100

grams or more of a mixture or substance containing a

detectable amount of any analogue of N-phenyl-N-[1(2-phenylethyl)-4-piperidinyl] propanamide;

(vii) 1000 kilograms or more of a mixture or

substance containing a detectable amount of

marihuana, or 1,000 or more marihuana plants

regardless of weight; or

(viii) 50 grams or more of methamphetamine, its

salts, isomers, and salts of its isomers or 500 grams

or more of a mixture or substance containing a

detectable amount of methamphetamine, its salts,

isomers, or salts of its isomers;

such person shall be sentenced to a term of imprisonment

which may not be less than 10 years or more than life and

if death or serious bodily injury results from the use of

such substance shall be not less than 20 years or more

than life, a fine not to exceed the greater of that

authorized in accordance with the provisions of title 18 or

91a

$10,000,000 if the defendant is an individual or $50,000,000

if the defendant is other than an individual, or both. If any

person commits such a violation after a prior conviction

for a serious drug felony or serious violent felony has

become final, such person shall be sentenced to a term of

imprisonment of not less than 15 years and not more than

life imprisonment and if death or serious bodily injury

results from the use of such substance shall be sentenced

to life imprisonment, a fine not to exceed the greater of

twice that authorized in accordance with the provisions of

title 18 or $20,000,000 if the defendant is an individual or

$75,000,000 if the defendant is other than an individual, or

both. If any person commits a violation of this

subparagraph or of section 849, 859, 860, or 861 of this title

after 2 or more prior convictions for a serious drug felony

or serious violent felony have become final, such person

shall be sentenced to a term of imprisonment of not less

than 25 years and fined in accordance with the preceding

sentence. Notwithstanding section 3583 of title 18, any

sentence under this subparagraph shall, in the absence of

such a prior conviction, impose a term of supervised

release of at least 5 years in addition to such term of

imprisonment and shall, if there was such a prior

conviction, impose a term of supervised release of at least

10 years in addition to such term of imprisonment.

Notwithstanding any other provision of law, the court

shall not place on probation or suspend the sentence of

any person sentenced under this subparagraph. No

person sentenced under this subparagraph shall be

eligible for parole during the term of imprisonment

imposed therein.

(B) In the case of a violation of subsection (a) of this

section involving(i) 100 grams or more of a mixture or substance

containing a detectable amount of heroin;

92a

(ii) 500 grams or more of a mixture or substance

containing a detectable amount of(I) coca leaves, except coca leaves and extracts

of coca leaves from which cocaine, ecgonine, and

derivatives of ecgonine or their salts have been

removed;

(II) cocaine, its salts, optical and geometric

isomers, and salts of isomers;

(III) ecgonine, its derivatives, their salts,

isomers, and salts of isomers; or

(IV) any compound, mixture, or preparation

which contains any quantity of any of the

substances referred to in subclauses (I) through

(III);

(iii) 28 grams or more of a mixture or substance

described in clause (ii) which contains cocaine base;

(iv) 10 grams or more of phencyclidine (PCP) or

100 grams or more of a mixture or substance

containing a detectable amount of phencyclidine

(PCP);

(v) 1 gram or more of a mixture or substance

containing a detectable amount of lysergic acid

diethylamide (LSD);

(vi) 40 grams or more of a mixture or substance

containing a detectable amount of N-phenyl-N- [ 1- (

2-phenylethyl ) -4-piperidinyl ] propanamide or 10

grams or more of a mixture or substance containing a

detectable amount of any analogue of N-phenyl-N-[1(2-phenylethyl)-4-piperidinyl] propanamide;

(vii) 100 kilograms or more of a mixture or

substance containing a detectable amount of

93a

marihuana, or 100 or more marihuana plants

regardless of weight; or

(viii) 5 grams or more of methamphetamine, its

salts, isomers, and salts of its isomers or 50 grams or

more of a mixture or substance containing a

detectable amount of methamphetamine, its salts,

isomers, or salts of its isomers;

such person shall be sentenced to a term of imprisonment

which may not be less than 5 years and not more than 40

years and if death or serious bodily injury results from the

use of such substance shall be not less than 20 years or

more than life, a fine not to exceed the greater of that

authorized in accordance with the provisions of title 18 or

$5,000,000 if the defendant is an individual or $25,000,000

if the defendant is other than an individual, or both. If any

person commits such a violation after a prior conviction

for a serious drug felony or serious violent felony has

become final, such person shall be sentenced to a term of

imprisonment which may not be less than 10 years and not

more than life imprisonment and if death or serious bodily

injury results from the use of such substance shall be

sentenced to life imprisonment, a fine not to exceed the

greater of twice that authorized in accordance with the

provisions of title 18 or $8,000,000 if the defendant is an

individual or $50,000,000 if the defendant is other than an

individual, or both. Notwithstanding section 3583 of title

18, any sentence imposed under this subparagraph shall,

in the absence of such a prior conviction, include a term of

supervised release of at least 4 years in addition to such

term of imprisonment and shall, if there was such a prior

conviction, include a term of supervised release of at least

8 years in addition to such term of imprisonment.

Notwithstanding any other provision of law, the court

shall not place on probation or suspend the sentence of

any person sentenced under this subparagraph. No

94a

person sentenced under this subparagraph shall be

eligible for parole during the term of imprisonment

imposed therein.

(C) In the case of a controlled substance in schedule I

or II, gamma hydroxybutyric acid (including when

scheduled as an approved drug product for purposes of

section 3(a)(1)(B) of the Hillory J. Farias and Samantha

Reid Date-Rape Drug Prohibition Act of 2000), or 1 gram

of flunitrazepam, except as provided in subparagraphs

(A), (B), and (D), such person shall be sentenced to a term

of imprisonment of not more than 20 years and if death or

serious bodily injury results from the use of such

substance shall be sentenced to a term of imprisonment of

not less than twenty years or more than life, a fine not to

exceed the greater of that authorized in accordance with

the provisions of title 18 or $1,000,000 if the defendant is

an individual or $5,000,000 if the defendant is other than

an individual, or both. If any person commits such a

violation after a prior conviction for a felony drug offense

has become final, such person shall be sentenced to a term

of imprisonment of not more than 30 years and if death or

serious bodily injury results from the use of such

substance shall be sentenced to life imprisonment, a fine

not to exceed the greater of twice that authorized in

accordance with the provisions of title 18 or $2,000,000 if

the defendant is an individual or $10,000,000 if the

defendant is other than an individual, or both.

Notwithstanding section 3583 of title 18, any sentence

imposing a term of imprisonment under this paragraph

shall, in the absence of such a prior conviction, impose a

term of supervised release of at least 3 years in addition

to such term of imprisonment and shall, if there was such

a prior conviction, impose a term of supervised release of

at least 6 years in addition to such term of imprisonment.

Notwithstanding any other provision of law, the court

95a

shall not place on probation or suspend the sentence of

any person sentenced under the provisions of this

subparagraph which provide for a mandatory term of

imprisonment if death or serious bodily injury results, nor

shall a person so sentenced be eligible for parole during

the term of such a sentence.

(D) In the case of less than 50 kilograms of

marihuana, except in the case of 50 or more marihuana

plants regardless of weight, 10 kilograms of hashish, or

one kilogram of hashish oil, such person shall, except as

provided in paragraphs (4) and (5) of this subsection, be

sentenced to a term of imprisonment of not more than 5

years, a fine not to exceed the greater of that authorized

in accordance with the provisions of title 18 or $250,000 if

the defendant is an individual or $1,000,000 if the

defendant is other than an individual, or both. If any

person commits such a violation after a prior conviction

for a felony drug offense has become final, such person

shall be sentenced to a term of imprisonment of not more

than 10 years, a fine not to exceed the greater of twice that

authorized in accordance with the provisions of title 18 or

$500,000 if the defendant is an individual or $2,000,000 if

the defendant is other than an individual, or both.

Notwithstanding section 3583 of title 18, any sentence

imposing a term of imprisonment under this paragraph

shall, in the absence of such a prior conviction, impose a

term of supervised release of at least 2 years in addition

to such term of imprisonment and shall, if there was such

a prior conviction, impose a term of supervised release of

at least 4 years in addition to such term of imprisonment.

(E)(i) Except as provided in subparagraphs (C) and

(D), in the case of any controlled substance in schedule

III, such person shall be sentenced to a term of

imprisonment of not more than 10 years and if death or

serious bodily injury results from the use of such

96a

substance shall be sentenced to a term of imprisonment of

not more than 15 years, a fine not to exceed the greater of

that authorized in accordance with the provisions of title

18 or $500,000 if the defendant is an individual or

$2,500,000 if the defendant is other than an individual, or

both.

(ii) If any person commits such a violation after a

prior conviction for a felony drug offense has become

final, such person shall be sentenced to a term of

imprisonment of not more than 20 years and if death

or serious bodily injury results from the use of such

substance shall be sentenced to a term of

imprisonment of not more than 30 years, a fine not to

exceed the greater of twice that authorized in

accordance with the provisions of title 18 or

$1,000,000 if the defendant is an individual or

$5,000,000 if the defendant is other than an individual,

or both.

(iii) Any sentence imposing a term of

imprisonment under this subparagraph shall, in the

absence of such a prior conviction, impose a term of

supervised release of at least 2 years in addition to

such term of imprisonment and shall, if there was

such a prior conviction, impose a term of supervised

release of at least 4 years in addition to such term of

imprisonment.

(2) In the case of a controlled substance in schedule

IV, such person shall be sentenced to a term of

imprisonment of not more than 5 years, a fine not to

exceed the greater of that authorized in accordance with

the provisions of title 18 or $250,000 if the defendant is an

individual or $1,000,000 if the defendant is other than an

individual, or both. If any person commits such a violation

after a prior conviction for a felony drug offense has

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become final, such person shall be sentenced to a term of

imprisonment of not more than 10 years, a fine not to

exceed the greater of twice that authorized in accordance

with the provisions of title 18 or $500,000 if the defendant

is an individual or $2,000,000 if the defendant is other than

an individual, or both. Any sentence imposing a term of

imprisonment under this paragraph shall, in the absence

of such a prior conviction, impose a term of supervised

release of at least one year in addition to such term of

imprisonment and shall, if there was such a prior

conviction, impose a term of supervised release of at least

2 years in addition to such term of imprisonment.

(3) In the case of a controlled substance in schedule

V, such person shall be sentenced to a term of

imprisonment of not more than one year, a fine not to

exceed the greater of that authorized in accordance with

the provisions of title 18 or $100,000 if the defendant is an

individual or $250,000 if the defendant is other than an

individual, or both. If any person commits such a violation

after a prior conviction for a felony drug offense has

become final, such person shall be sentenced to a term of

imprisonment of not more than 4 years, a fine not to

exceed the greater of twice that authorized in accordance

with the provisions of title 18 or $200,000 if the defendant

is an individual or $500,000 if the defendant is other than

an individual, or both. Any sentence imposing a term of

imprisonment under this paragraph may, if there was a

prior conviction, impose a term of supervised release of

not more than 1 year, in addition to such term of

imprisonment.

(4) Notwithstanding paragraph (1)(D) of this

subsection, any person who violates subsection (a) of this

section by distributing a small amount of marihuana for

no remuneration shall be treated as provided in section

844 of this title and section 3607 of title 18.

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(5) Any person who violates subsection (a) of this

section by cultivating or manufacturing a controlled

substance on Federal property shall be imprisoned as

provided in this subsection and shall be fined any amount

not to exceed(A) the amount authorized in accordance with this

section;

(B) the amount authorized in accordance with the

provisions of title 18;

(C) $500,000 if the defendant is an individual; or

(D) $1,000,000 if the defendant is other than an

individual;

or both.

(6) Any person who violates subsection (a), or

attempts to do so, and knowingly or intentionally uses a

poison, chemical, or other hazardous substance on

Federal land, and, by such use(A) creates a serious hazard to humans, wildlife, or

domestic animals,

(B) degrades or harms the environment or natural

resources, or

(C) pollutes an aquifer, spring, stream, river, or

body of water,

shall be fined in accordance with title 18 or imprisoned not

more than five years, or both.

(7) PENALTIES FOR DISTRIBUTION.(A) IN GENERAL.-Whoever, with intent to commit a

crime of violence, as defined in section 16 of title 18

(including rape), against an individual, violates subsection

(a) by distributing a controlled substance or controlled

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substance analogue to that individual without that

individual's knowledge, shall be imprisoned not more than

20 years and fined in accordance with title 18.

(B) DEFINITION.-For purposes of this paragraph, the

term "without that individual's knowledge" means that the

individual is unaware that a substance with the ability to

alter that individual's ability to appraise conduct or to

decline participation in or communicate unwillingness to

participate in conduct is administered to the individual.

(c) Offenses involving listed chemicals

Any person who knowingly or intentionally(1) possesses a listed chemical with intent to

manufacture a controlled substance except as authorized

by this subchapter;

(2) possesses or distributes a listed chemical knowing,

or having reasonable cause to believe, that the listed

chemical will be used to manufacture a controlled

substance except as authorized by this subchapter; or

(3) with the intent of causing the evasion of the

recordkeeping or reporting requirements of section 830 of

this title, or the regulations issued under that section,

receives or distributes a reportable amount of any listed

chemical in units small enough so that the making of

records or filing of reports under that section is not

required;

shall be fined in accordance with title 18 or imprisoned not

more than 20 years in the case of a violation of paragraph

(1) or (2) involving a list I chemical or not more than 10

years in the case of a violation of this subsection other

than a violation of paragraph (1) or (2) involving a list I

chemical, or both.

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(d) Boobytraps on Federal property; penalties;

"boobytrap" defined

(1) Any person who assembles, maintains, places, or

causes to be placed a boobytrap on Federal property

where a controlled substance is being manufactured,

distributed, or dispensed shall be sentenced to a term of

imprisonment for not more than 10 years or fined under

title 18, or both.

(2) If any person commits such a violation after 1 or

more prior convictions for an offense punishable under

this subsection, such person shall be sentenced to a term

of imprisonment of not more than 20 years or fined under

title 18, or both.

(3) For the purposes of this subsection, the term

"boobytrap" means any concealed or camouflaged device

designed to cause bodily injury when triggered by any

action of any unsuspecting person making contact with

the device. Such term includes guns, ammunition, or

explosive devices attached to trip wires or other

triggering mechanisms, sharpened stakes, and lines or

wires with hooks attached.

(e) Ten-year injunction as additional penalty

In addition to any other applicable penalty, any

person convicted of a felony violation of this section

relating to the receipt, distribution, manufacture,

exportation, or importation of a listed chemical may be

enjoined from engaging in any transaction involving a

listed chemical for not more than ten years.

(f) Wrongful distribution or possession of listed

chemicals

(1) Whoever knowingly distributes a listed chemical

in violation of this subchapter (other than in violation of a

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recordkeeping or reporting requirement of section 830 of

this title) shall, except to the extent that paragraph (12),

(13), or (14) of section 842(a) of this title applies, be fined

under title 18 or imprisoned not more than 5 years, or

both.

(2) Whoever possesses any listed chemical, with

knowledge that the recordkeeping or reporting

requirements of section 830 of this title have not been

adhered to, if, after such knowledge is acquired, such

person does not take immediate steps to remedy the

violation shall be fined under title 18 or imprisoned not

more than one year, or both.

(g) Internet sales of date rape drugs

(1) Whoever knowingly uses the Internet to

distribute a date rape drug to any person, knowing or with

reasonable cause to believe that(A) the drug would be used in the commission of

criminal sexual conduct; or

(B) the person is not an authorized purchaser;

shall be fined under this subchapter or imprisoned not

more than 20 years, or both.

(2) As used in this subsection:

(A) The term "date rape drug" means(i) gamma hydroxybutyric acid (GHB) or any

controlled substance analogue of GHB, including

gamma butyrolactone (GBL) or 1,4–butanediol;

(ii) ketamine;

(iii) flunitrazepam; or

(iv) any substance which the Attorney General

designates, pursuant to the rulemaking

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procedures prescribed by section 553 of title 5, to

be used in committing rape or sexual assault.

The Attorney General is authorized to remove any

substance from the list of date rape drugs pursuant to the

same rulemaking authority.

(B) The term "authorized purchaser" means any of

the following persons, provided such person has acquired

the controlled substance in accord

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