Sufficient evidence; Conspiracy to unlawfully dispense controlled substances; Healthcare fraud; Exclusion of evidence of the elimination of a federal regulation known as the “X-waiver rule”; Allegedly “speculative” testimony; FRE 401; Hearsay; Text messages; FRE 403; Whether a witness exceeded the permissible scope of lay witness testimony; FRE 701; Evidence of patient deaths; Denial of motion to sever trial; Jury instructions on conspiracy to unlawfully distribute controlled substances; Mens rea; Deliberate ignorance; Cumulative error; Untimely motion to correct or reduce a sentence

The court affirmed all three defendants’ convictions of conspiracy to unlawfully dispense controlled substances and healthcare fraud, holding for the first time in a published opinion that evidence of patient deaths can be admitted if the government can establish a connection to the defendants. A jury convicted defendants-Herrell, Grenkoski, and McFarlane (all doctors) of conspiracy to distribute controlled substances, healthcare fraud, and money laundering arising from their participation in a “pill mill.” All three challenged the sufficiency of the evidence of conspiracy to distribute controlled substances. The court cited extensive precedent upholding convictions in these type of cases where there was evidence of the same factors that described defendants’ clinic’s “typical practices” and defendants. It also rejected Grenkoski’s challenge to his conviction for conspiracy to commit health care fraud. Herrell and McFarlane appealed the district court’s ruling excluding evidence of the repeal of a federal regulation known as the “X-waiver rule.” But the court agreed that introducing this evidence would only “confuse” the jury given the temporal discrepancy between when the conspiracy ended and when the regulation was repealed. It rejected Grenkoski’s claim that the district court improperly allowed three hearsay statements into evidence, holding that they were not offered to prove the truth of the matter asserted or were offered to establish mens rea. The court also upheld the admission of testimony about patient deaths if the government showed a connection to the defendants, noting it had done so previously in an unpublished case and that other courts have ruled similarly. While the district court erred in not following its own ruling as to one witness, the court found the error was harmless because, under the circumstances, the “passing reference to separate patient deaths was largely cumulative and would not have ‘materially affect[ed]’ the jury’s verdict.” McFarlane’s motion to sever her trial was properly denied where she only gave “‘generalized concerns’” about spillover evidence. The court also rejected defendants’ challenges to the jury instructions on the elements of conspiracy to unlawfully distribute controlled substances and deliberate ignorance, and Grenkoski’s cumulative error claim.