USA v. Haney, et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
UNITED STATES OF AMERICA, 	)
)
Plaintiff, 	)
)
v. 	) 	No.: 	3:24-CR-113-TAV-JEM
)
TIFFANY HANEY, 	)
ANNE WARREN, and 	)
TINA ROPER, 	)
)
Defendants. 	)
MEMORANDUM OPINION AND ORDER
This matter is before the Court on several oral motions of defendants, raised during
trial, which the Court took under advisement, as well as defendants’ written trial brief [Doc.
364] addressing some of these issues, and the government’s response thereto [Doc. 370].
A. 	Medical Necessity
During redirect examination of witness Allison Lawson, a pharmacist who previously
worked at Rocky Hill Pharmacy (“RHP”), the government asked Lawson if the medications
defendant Tina Roper was selecting on prescriptions were not “medically necessary.”
Defendant Tiffany Haney’s counsel objected, questioning how Lawson could know if
medications were medically necessary. Defense counsel also pointed to Lawson’s testimony
that Luther Little stated that the doctors had approved secondary creams because they were
medically necessary.
The Court overruled the objection but asked the government to move on to the next
question. 	Addressing a text message conversation between Lawson and defendants, the
government asked if Lawson was laughing about disposing of medications that defendant
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Roper was selecting on the prescriptions. Lawson replied in the affirmative. The government
then asked another question, suggesting that these thrown-away medications were not
medically necessary. 	Defendant Anne Warren’s then interjected, questioning how Lawson
could opine as to medical necessity. The Court sustained the objection and instructed the jury
to disregard the government’s question about whether a prescription was consistent with the
practice of medicine and Lawson’s answer to that question.
Subsequently, defendant Haney’s counsel asserted that this line of inquiry constitutes
a variance from the charges in the Third Superseding Indictment. 	Additionally, defense
counsel contended that mentioning medical necessity was prejudicial because there is no
healthcare fraud charged in this case. Defense counsel requested an instruction to the jury that
medical necessity is not a question in this case. The Court directed defense counsel to set forth
this request in writing with legal authority the following day, with the government to respond
in writing the subsequent day.
In their brief, defendants first contend that the government abandoned its “medical
necessity” theory when it superseded the healthcare fraud charges in the Second Superseding
Indictment [Doc. 364, p. 1]. 	Accordingly, any references to medical necessity would be
“irrelevant, confusing, [and] unduly prejudicial” [Id. at 1–2]. Second, defendants argue that
whether a medication is “medically necessary” requires “specialized evaluations including
medical 	diagnoses, 	the 	applicable 	standard 	of 	care, 	treatment 	alternatives, 	dosage
appropriateness, and a risk-benefit analysis,” and thus, “require[s] a level of interaction with a
patient” that Lawson does not possess [Id. at 2]. Finally, defendants assert that Lawson was
not designated as an expert witness, and therefore, any opinion as to medical necessity would
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be unqualified and impermissible [Id.]. Defendants request that the jury be instructed that they
cannot consider medical necessity or lack thereof as evidence of defendants’ guilt [Id.].
The government responds that “medical necessity” is relevant to knowledge, intent, and
materiality under the Sixth Circuit’s wire fraud instructions, specifically, the element of “intent
to defraud” which means that the defendant acted “knowingly and with the intent to deceive
or cheat” [Doc. 370, pp. 1–2 (citing Sixth Circuit Pattern Criminal Jury Instructions
§ 10.02(2)(A)–(E))]. The government argues that “medical necessity” is not a stray healthcare
fraud theory, but rather, is a part of the material misrepresentation defendants made in order to
be reimbursed [Id. at 2]. The government submits that the issue here is “whether defendants
knowingly submitted or caused to be submitted via interstate wire claims for reimbursement
that contained false or materially misleading representations” [Id. at 2–3]. And defendants did
just that when they sought reimbursement for fraudulently “added on” medications [Id. at 3].
The government asserts that defendants passed these altered prescriptions on as “medically
necessary” to payors “because defendants knew that the payors would only reimburse
defendants for drugs that were medically necessary—as determined by the prescribing
physician, not the pharmacist defendants” [Id.]. 	Accordingly, the government avers, the
invalid medications defendants “added on” to valid, medically necessary prescriptions are
relevant to (1) “[w]hether defendants knew the ‘add ons’ were improper;” (2) “[w]hether the
representations to payors was material; and” (3) “[w]hether defendants acted with intent to
deceive” [Id. at 4].
The government further maintains that Lawson can testify that what RHP “dispenses
must match what the prescriber prescribed because ‘that is what the doctor has deemed
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medically necessary for that patient’” [Id. at 3]. 	This testimony, the government argues,
comports with Rule 701 because it was based on Lawson’s particularized knowledge of RHP’s
“prescription reimbursement processes” and policies she obtained through her employment
with RHP [Id.].
The Court begins with defendants’ broad assertion that since healthcare fraud is no
longer charged, medical necessity is off the table. This assertion is contrary to the case law.
In fact, the Sixth Circuit “has repeatedly affirmed convictions under § 1347[, health care
fraud,] 	(and 	related 	conspiracy 	convictions) 	based 	on 	the 	submission 	of 	claims 	for
reimbursement for services that the defendants knew were not medically necessary.” United
States v. Weir, No. 2:21-CR-8, 2025 WL 1235776, at *11 (M.D. Tenn. Apr. 29, 2025)
(emphasis added) (collecting cases); accord United States v. Bailey, 973 F.3d 548, 567 (6th
Cir. 2020) (finding there to be ample evidence to support the defendant’s conviction for wire
fraud in part because a witness testified that he and the defendant “participated in a scheme to
defraud Medicare by selling power wheelchairs to individuals for whom the device was not
necessary”); United States v. Harper, 945 F.2d 405, 1991 WL 188165, at *1 (6th Cir. 1991)
(table) (noting that the defendants were indicted on, and pled guilty to, 1 count of conspiracy
to distribute controlled substances and 31 counts of mail fraud for “overbilling Blue Cross/Blue
Shield for podiatric services that were either not medically necessary or that were never
performed”); United States v. United Mem’l Hosp., No. 1:01CR238, 2002 WL 33001119, at
*3 (W.D. Mich. July 23, 2002) (noting that the charges for conspiracy to commit mail and/or
wire fraud, mail fraud, and wire fraud “detail the elements of each of the offenses and
particularly describe the object of the conspiracy (i.e, to profit from billings for unnecessary
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medical services”)). Therefore, the charge of wire fraud, as opposed to the charge of healthcare
fraud, does not dictate if medical necessity is a factual underpinning of a case.
Accordingly, the Court turns to the narrower question arising from the parties’ oral
arguments and that which they have set forth in writing is—does the introduction of medical
necessity evidence result in a variance 1 of the indictment?
1. 	Variance
“A variance ‘occurs when the charging terms [of the indictment] are unchanged, but
the evidence at trial proves facts materially different from those alleged in the indictment.’”
Mize, 814 F.3d at 409 (quoting United States v. Kuehne, 547 F.3d 667, 683 (6th Cir. 2008)).
A variance is not “per se prejudicial.” 	United States v. Budd, 496 F.3d 517, 521 (6th Cir.
2007). 	“A defendant’s substantial rights are affected ‘only when the defendant shows
prejudice to h[er] ability to defend h[er]self at trial, to the general fairness of the trial, or to the
indictment’s sufficiency to bar subsequent prosecutions.’” 	Mize, 814 F.3d at 409 (quoting
Kuehne, 547 F.3d at 683). 2
As stated previously, defendants contend that reference to “medical necessity”
constitutes a variance because the government abandoned its “medical necessity” theory when
1 The Court notes that, in addition to variances, constructive amendments are also a type
of indictment modification recognized by the Sixth Circuit. See United States v. Mize, 814 F.3d
401, 409 (6th Cir. 2016) (citing United States v. Hynes, 467 F.3d 951, 961 (6th Cir. 2006)).
However, the Court will limit its analysis to variances, as this is the scope of defendants’ argument,
and this trial has not yet reached closing jury instructions. See id. (“[A] constructive amendment
requires a showing ‘that the important functions of an indictment were undermined by both the
evidence presented and the jury instructions.’” (emphasis in original) (quoting Hynes, 467 F.3d at
962)). 2 While acknowledging defendants’ request here, the Court also notes that variance claims
appear to typically arise on appeal as the remedy for a prejudicial variance is reversal of conviction.
See Kuehne, 547 F.3d at 683. And there is no conviction at this juncture.
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it superseded the healthcare fraud charges in the Second Superseding Indictment [Doc. 364, p.
1]. Specifically, in the Second Superseding Indictment, the government alleged, as part of the
manner and means of the conspiracy to commit healthcare fraud, that defendants “submitted
additional claims for medications that were not medically necessary and/or were not dispensed
pursuant to a valid prescription, and therefore, not eligible for reimbursement” [Doc. 127 ¶ 32].
The Third Superseding Indictment, however, does not include a charge of conspiracy to
commit healthcare fraud, but rather, charges conspiracy to commit wire fraud [Doc. 217, p. 3].
And, in the allegations regarding the manner and means of the conspiracy to commit wire
fraud, the Third Superseding Indictment does not include the language regarding “medically
necessary,” but rather, alleges that defendants “submitted . . . additional claims for medications
that were not dispensed pursuant to a valid prescription, and therefore not eligible for
reimbursement” [See id. ¶ 28].
Notably, 	“[t]he 	presentation 	of 	additional 	evidence 	to 	substantiate 	charged
offenses . . . does 	not 	constitute 	facts 	materially 	different 	from 	those 	charged 	in 	the
indictment.” Kuehne, 547 F.3d at 686. The Court finds here that whether a medication was
medically necessary is additional evidence to substantiate the charge of conspiracy to commit
wire fraud, and the substantive counts of wire fraud, rather than “facts materially different”
from those charged in the Third Superseding Indictment. 	See id. 	Specifically, it appears
undisputed that a medical doctor or nurse practitioner who interacts with and evaluates a
patient could determine that a medication is medically necessary, or appropriate, for that
patient. 	And in finding a medication medically necessary, a medical doctor or nurse
practitioner could prescribe such medication. 	Pharmacists, however, do not have a level of
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individualized interaction with patients to determine if, for a particular patient, a medication
should be written because the medication is medically necessary. Accordingly, if a pharmacist
is adding a medication to a prescription written by a medical doctor or nurse practitioner, and
such addition was not authorized by the prescriber, it follows that the additional medication
was not deemed medically necessary for a patient by their treating medical doctor or nurse
practitioner. 	In other words, the Court finds that whether a medication was dispensed via a
valid prescription is largely linked to, and not materially different from, whether a medication
was medically necessary. 	See Kuehne, 547 F.3d at 686. 	Therefore, the Court does not find
evidence regarding “medical necessity” to constitute a variance from the Third Superseding
Indictment.
Even if the Court were to find a variance, defendants have not shown how their
substantial rights have been affected at this point. Again, “[a] defendant’s substantial rights
are affected ‘only when the defendant shows prejudice to h[er] ability to defend h[er]self at
trial, to the general fairness of the trial, or to the indictment’s sufficiency to bar subsequent
prosecutions.’” Mize, 814 F.3d at 409 (citation omitted).
Here, defendants’ ability to defend themselves at trial has not been prejudiced by the
references to medical necessity thus far. 	Foremost, and to date, there have been scant
references to medical necessity in the government’s case-in-chief. 3 Moreover, the references
to medical necessity so far have not been limited to the government—defendant Haney’s
3 And as discussed infra, the Court reiterates its sustainment of defense counsel’s objections
to the government’s question, and Lawson’s answer, as to medical necessity during redirect
examination. Additionally, as set forth infra, the Court is limiting who may testify as to medical
necessity going forward.
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referenced medical necessity in his cross-examination of Lawson. 	Additionally, the Court
notes medical necessity has been a frequent topic of discussion in this case, even after the Third
Superseding Indictment was filed [See Sealed Doc. 151, pp. 40, 62–63; Doc. 203, p. 5; Doc.
210, pp. 6–7; Doc. 242, p. 4; Doc. 247, p. 7; Doc. 252, p. 10]. 	Thus, despite the Third
Superseding Indictment’s lack of specific medical necessity language, defendants had some
notice that medical necessity could arise at this trial. 	And to that point, defendants have an
expert witness in their arsenal who aims to testify as to why compound formulations “are
medically appropriate for the pain conditions treated by the respective prescribers in this case”
[Doc. 210, p. 6]. Therefore, and in conjunction with the Court’s ruling infra, the Court finds
that the playing field is essentially “level with respect to [the] evidence” of medical necessity.
See United States v. Robinson, 99 F.4th 344, 366 (6th Cir. 2024). Finally, regarding prejudice
as to the indictment’s sufficiency to bar subsequent prosecutions, defendants have not made
such showing. Mize, 814 F. 3d at 409 (citation omitted).
2. 	Testimony as to Medical Necessity
In finding that evidence of medical necessity does not constitute a variance from the
Third Superseding Indictment, the Court turns to the final issue of who can testify as to medical
necessity, as raised in part by defendants.
As set out by Federal Rule of Evidence 701(c), a lay witness may not offer opinions
“based on scientific, technical, or other specialized knowledge within the scope of Rule 702.”
And “[a]lthough a doctor may properly be called as a lay witness to testify about facts and
treatment,” as has occurred in this case, “she may not testify about the connection between the
two without being qualified as an expert—in other words, she may not explain why treatment
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was medically necessary or appropriate.” United States v. Lang, 717 F. App’x 523, 537 (6th
Cir. 2017) (emphasis in original) (first citing United States v. Volkman, 797 F.3d 377, 388–90
(6th Cir. 2015); and then citing United States v. Kirk, 584 F.2d 773, 785 (6th Cir. 1978)). Put
another way, “[t]o opine on why a physician wrote a specific prescription and why the patient
needed it takes specialized medical knowledge, and is therefore a medical judgment subject to
Rule 702.” 	Id. (emphasis in original) (citing Volkman, 797 F.3d at 388–90); accord United
States v. Khalil, No. 22-CR-20200, 2024 WL 4988983, at *2 (E.D. Mich. Dec. 5, 2024)
(permitting the government’s physician witness, as a lay witness, to testify as to whether they
ordered particular tests and whether the test performed was the test ordered but prohibiting
testimony as to whether “certain aspects of treatment were medically necessary” as such is
“classic expert testimony”).
Following the authority of the Sixth Circuit, the Court concludes that testimony as to
medical necessity is to be left to the expert witnesses in this trial. In so concluding, the Court
reiterates its SUSTAINMENT of defendants’ objection to Lawson’s testimony as to medical
necessity. Given this reiteration, and the above finding that medical necessity is not a variance
from the indictment, the Court will DENY defendants’ jury instruction request [Doc. 364, p.
2].
B. 	Subsequent Remedial Measures
Additionally, during Lawson’s direct examination, the government elicited testimony
regarding a “new policy” implemented two days after the search warrant was executed at RHP,
requiring pharmacy employees to inform doctors of prescription changes, which the pharmacy
had not been doing previously. Defendant Haney’s counsel then requested an instruction on
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subsequent remedial action. 	Ultimately, the Court ordered defense counsel to file any
appropriate brief or further motion in support of the oral request, to include the basis and legal
authority for the request.
In their supplemental trial brief, defendants argue that, in light of Lawson’s testimony
about a “new” policy implemented after the search warrant was executed, the Court should
instruct the jury as follows prior to the resumption of Lawson’s testimony:
During Alison [sic] Lawson’s testimony, you heard testimony that a “new”
policy was implemented following the execution of a search warrant at Rocky
Hill Pharmacy. I hereby instruct you that you cannot consider any change of
policy as evidence that Defendants are guilty of the offenses charged in this
case.
[Doc. 364, pp. 2–3]. In support, defendants cite Federal Rules of Evidence 407, 401, and 403
[Id. at 3].
The government responds that Rule 407 is rooted in tort policy, and this is a criminal
fraud prosecution, not a negligence action [Doc. 370, p. 5]. 	The government contends that
Rule 407, by its terms, does not bar such evidence if used for another purpose such as
ownership, control, or feasibility, which is how the government offers the evidence here [Id.].
Specifically, the government states that the evidence is probative of (a) knowledge that prior
practices were deficient; (b) feasibility of compliance procedures; and (c) consciousness of
wrongdoing [Id.]. Further, the government argues that Rule 407 does not cover defendant’s
post-search “policy change,” as Lawson testified that the “new policy” was to make doctors
aware of changes RHP made to prescriptions, but prior notification and approval from doctors
is a step defendants were already legally obligated to take [Id. at 6 (citing United States v.
Holmes, 129 F.4th 636, 657 (9th Cir. 2025))].
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Under Rule 407, evidence of subsequent remedial measures that would have “made the
injury or harm less likely to occur . . . is not admissible to prove negligence [or] culpable
conduct.” 	Nolan v. Memphis City Sch., 589 F.3d 257, 273–74 (6th Cir. 2009) (quoting
Fed. R. Evid. 407). However, “the court may admit this evidence for another purpose, such as
impeachment or—if disputed—proving ownership, control, or the feasibility of precautionary
measures.” Fed. R. Evid. 407. Rule 407 is “grounded upon ‘a policy of encouraging people
to take, or at least not discourage them from taking, steps in furtherance of added safety.’”
Pfeifer v. Hiland, No. 5:15-CV-7, 2019 WL 1767567, at *6 (W.D. Ky. Apr. 22, 2019) (quoting
Advisory Committee Note to Rule 407). Moreover, “Rule 407 is meant to avoid ‘punish[ing]
the defendant for his efforts to remedy his safety problems,’ so the rule does not contemplate
exclusion of evidence that the defendant took actions that it was legally obligated to take.”
Holmes, 129 F.4th at 657 (quoting In re Aircrash in Bali, Indon., 871 F.2d 812, 817 (9th Cir.
1989)).
Some courts have held that Rule 407 may be applicable in criminal prosecutions. See
United States v. DSD Shipping, A.S., No. 15-102-CG-B, 2015 WL 5722805, at *2 (S.D. Ala.
Sept. 29, 2015) (stating that the possibility of subsequent remedial measures does not arise
under most criminal contexts, but where “subsequent remedial measures are possible in a
criminal case, Rule 407 does not state that the case is excluded from its application”); United
States v. Pac. Gas & Elec. Co., 178 F. Supp. 3d 927, 951 (N.D. Cal. 2016) (“Rule 407’s bar
of subsequent remedial measures can apply to criminal cases”). Other courts have concluded
that the policy purpose behind Rule 407 indicates it is not applicable to criminal actions. See
United States v. Parker, 634 F. Supp. 3d 583, 588 (W.D. Ark. 2022) (“While it is true that the
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Federal Rules of Evidence apply to both civil and criminal cases, Rule 407 is designed for civil
actions.”); United States v. Gallagher, No. 89-272-03, 1990 WL 52722, at *2 (E.D. Pa. Apr.
24, 1990) (“The court finds no legal authority or policy reasons supporting application of Rule
407 in a criminal action, and concludes that it is inapplicable”). 	Although the Sixth Circuit
had not directly addressed this issue, the Court concludes that the underlying social
policy—encouraging remedial measures in furtherance of safety—demonstrates that Rule 407
is more tailored to tort law. See generally Pfeifer, 2019 WL 1767567, at *6 (quoting Advisory
Committee Note to Rule 407).
But even if Rule 407 applies to this criminal prosecution, the Court finds that evidence
of the “new policy” requiring RHP employees to confirm changes to prescriptions with doctors
is admissible because Rule 407 does not bar evidence that a defendant took actions he or she
was legally obligated to take. 	See Holmes, 129 F.4th at 657; see also Genesco, Inc. v. Visa
U.S.A., Inc., 302 F.R.D. 168, 189 (M.D. Tenn. 2014) (citing In re Aircrash in Bali, Indon., 871
F.2d at 817) (stating that Rule “407 does not apply to involuntary remedial measures.”)); Pac.
Gas & Elec., 178 F. Supp. 3d at 952 (“An exception to Rule 407 is recognized for evidence of
remedial action mandated by superior governmental authority . . . because the policy goal of
encouraging remediation would not necessarily be furthered by exclusion of such evidence”
(quoting O’Dell v. Hercules, Inc., 904 F.2d 1194, 1204 (8th Cir. 1990))); United States v.
Balwani, No. 5:18-cr-258, 2022 WL 597040, at *6 (N.D. Cal. Feb. 28, 2022) (concluding that
actions taken because they were believed to be necessary to comply with federal regulations
were “involuntary” and therefore not remedial measures under Rule 407). 	Here, numerous
witnesses 	have 	testified 	that 	only 	doctors 	and 	“mid-levels” 	have 	authority 	to 	write
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prescriptions, and pharmacist and pharmacy technicians do not have authority to write or
modify prescriptions. 	As a result, the Court does not find that the alleged “new policy” of
requiring pharmacy employees to inform prescribers of alterations to prescriptions to be a
“voluntary” remedial action within the confines of Rule 407. Accordingly, defendants’ request
for a jury instruction related to subsequent remedial measures is DENIED.
C. 	Witness Jessica Cantwell
Upon beginning the cross-examination of witness Jessica Cantwell, defendant Haney’s
counsel moved for a continuance on the ground that Cantwell is represented by attorney Adam
Rust who is “irreconcilably conflicted” because he represents another anticipated witness,
Michelle McKnight, for purposes of a potential future civil proceeding involving some of the
same facts as this case. 	Defense counsel asserted that the current proceedings “have been
irreconcilably tainted” because the government called Cantwell to the stand and “fused these
proceedings with the product of a conflict.” 	Defense counsel contended that Cantwell
committed perjury during her direct examination and stated that she needed to be advised by
an unconflicted attorney, not attorney Rust, about whether she would waive her Fifth
Amendment rights against compelled self-incrimination.
The government responded that there was no evidence of an actionable conflict of
interest that would prevent Cantwell’s attorney from advising her on whether she should
exercise her Fifth Amendment rights. The government also contended that any ethical conflict
had no bearing on this case as the witness is not a party to the case, and there is no right of a
witness to have representation in a criminal proceeding, let alone conflict-free representation.
The government further stated that there was no danger of these criminal proceedings being
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tainted by any issue with a witness’s attorney/client relationship.
Defendant Haney’s counsel replied that his request was not related to the purported
conflict of interest but was related to the alleged perjury of the witness. Defendant Warren’s
counsel responded to the Court’s request for a rule or statute in support of the request, citing
Rule 8 of the Tennessee Supreme Court and Rule 1.7 of the Tennessee Rules of Professional
Conflict, relating to attorney conflicts of interest.
The government responded that, even if there was inaccurate testimony, there is an
ocean between that and perjury, and, at this point, there is no basis for the allegation that
Cantwell perjured herself. 	The government argued that the rules about a lawyer’s ethical
responsibilities are not relevant to whether a continuance is appropriate based on a witness’s
attorney/client representation.
The Court concluded that defendants had cited no authority persuading the Court that
a continuance of the entire trial was necessary but found it appropriate to direct that
examination of Cantwell be paused, as well as the testimony of any other witness that may
raise similar issues, to allow the parties to brief this issue. The Court directed defendants to
file a brief addressing this issue, which should state the issues, the specific requested relief,
and the specific legal authority for the issues posed and the relief requested.
In 	their 	trial 	brief, 	defendants 	state 	that 	they 	have 	“discharged 	their 	ethical
responsibilities by bringing to the Court’s attention” their viewpoint that Cantwell provided
“inaccurate testimony” during her direct examination and “may be represented by a conflicted
attorney” [Doc. 364, p. 3]. Defendants ask the Court to instruct Cantwell as follows prior to
the resumption of her testimony:
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Attorneys for the Defendants in this case have expressed their view that your
sworn testimony is perjurious. Perjury is a serious crime and could subject you
to serious penalties, including incarceration. If you wish to consult an attorney
regarding the Defendants’ position prior to resuming your testimony on this
matter, the Court will appoint one for you.
[Id.]. 	Defendants cite Rules 1.7 and 1.8 of the Tennessee Rules of Professional Conduct in
support of this request [Id.]. 	No other citation to legal authority is given for the requested
instruction [Id.].
In written response, the government contends that the requested instruction is not an
evidentiary instruction, but rather, “is a credibility attack disguised as judicial guidance that
improperly influences and invades the province of the jury” [Doc. 370, p. 6]. The government
notes that, contrary to the Court’s order, defendants cited no legal authority for their requested
witness instruction, and therefore, it should be summarily denied [Id. at 7]. 	Moreover, the
government notes that the Sixth Circuit has warned that judicial comments such as the
proposed instruction suggest disbelief of a witness and risk impermissible influence [Id. (citing
United States v. Hickman, 592 F.2d 931, 936 (6th Cir. 1979))]. Further, the government asserts
that the proposed instruction to Cantwell would “risk placing the Court’s imprimatur on
defense counsel’s witness intimidation scheme that the government previously brought [to]
the Court’s attention” [Id. (citing Sealed Doc. 320)].
Although defendants have been somewhat inconsistent as to the nature of their request,
based on defendant’s written submission [Doc. 364], the Court construes the request, at this
stage, as limited to a request to instruct the witness about defendants’ contention that she has
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committed perjury and advise her of her right to consult with counsel about that allegation. 4
First, the Court finds that defendants have not provided adequate legal support for their
requested instruction to Cantwell. Due to the ongoing issue in this case of requests for relief
without any citation to legal support for that relief, the Court directly ordered that this issue be
addressed, in writing, setting forth the relief sought and the legal authority for that relief.
Despite that direct instruction, defendants cited no legal authority for their argument for an
instruction on perjury to Cantwell, beyond citation to two Tennessee Rules of Professional
Conduct. But those rules do not address the issue of the instruction whatsoever. Instead, they
appear to go towards the allegation that attorney Rust has a conflict of interest. 	Notably,
defendants do not present the Court with any requested relief as to that alleged conflict of
interest, nor does the Court find that any such alleged conflict would be relevant to this criminal
case. Accordingly, based on the lack of legal support alone, the Court finds that defendants’
request for a perjury instruction to Cantwell is unwarranted. See Fed. R. Crim. P. 47(b) (stating
that “[a] motion must state the grounds on which it is based and the relief or order sought”
(emphasis added)); E.D. Tenn. L.R. 7.1(b) (directing that briefing on a motion “shall include
a concise statement of the factual and legal grounds which justify the ruling sought from the
Court” (emphasis added)).
Nonetheless, 	the 	Court 	finds 	the 	requested 	instruction 	to 	Cantwell 	otherwise
inappropriate. 	Notably, the Supreme Court has held that “a witness subpoenaed to testify
4 The Court also notes that, to the extent that Cantwell wishes to consult with legal counsel,
attorney Rust has been present in the courtroom throughout her testimony thus far, as well as
throughout the parties’ oral arguments relating thereto, and she remains free to consult him
regarding her Fifth Amendment rights.
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before a petit jury and placed under oath has never been entitled to a warning that, if [s]he
violates the solemn oath to ‘tell the truth,’ [s]he may be subject to a prosecution for perjury,
for the oath itself is the warning.” United States v. Mandujano, 425 U.S. 564, 582 (1976). In
fact, “[i]t would render the sanctity of the oath quite meaningless to require admonition to
adhere to it.” Id. at 581–82 (quoting United States v. Winter, 348 F.2d 204, 210 (2d Cir. 1965)).
Cantwell was placed under oath upon beginning her testimony, and the Court does not find
that a further instruction about the consequences of violating that oath is necessary.
The Court also notes the potential for improperly influencing the witness and/or the
jury by giving such an instruction. As the Sixth Circuit has noted, “potential prejudice lurks
behind every intrusion into a trial made by a presiding judge. The reason for this is that a trial
judge’s position before a jury is overpowering. His position makes his slightest action of great
weight with the jury.” 	Hickman, 592 F.2d at 933 (internal citations and quotation marks
omitted). And, even in circumstances where a perjury warning may be warranted, when the
substance of that warning is “over and above what the record indicates is necessary, and
appropriate” there is an inference that the warning was intended to coerce the witness into
silence. 	United States v. Pierce, 62 F.3d 818, 832 (6th Cir. 1995) (quoting United States v.
Jackson, 935 F.2d 832, 847 (7th Cir. 1991)). 	An instruction from the Court to the witness
would possibly have undue influence and perhaps lend inappropriate weight to defendants’
allegations of perjury. 	Accordingly, the Court finds that giving the proposed instruction to
Cantwell could result in undue influence by the Court in this case.
For all these reasons, defendants’ request for the Court to warn Cantwell about the
allegations of perjury and/or offer consultation with counsel about that allegation is DENIED.
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D. 	Witness Heather Radu
The Court addresses one additional matter that has arisen during witness testimony.
Specifically, during cross-examination of witness Heather Radu, defendant Haney’s counsel
inquired about text and/or Facebook messages between Radu and anticipated witness Michelle
McKnight. Radu testified that she did not have all of the messages but may have some on her
cell phone. 	Defense counsel asked Radu whether she would be willing to review her cell
phone, and whether such would refresh her recollection of the messages’ content. The Court
sustained objections to those questions. 	After defense counsel’s persistent efforts to inquire
along this line, the Court asked counsel to cite a rule or case indicating that such was proper
questioning. Defense counsel did not cite any rule or case.
At the break, defendant Haney’s counsel stated that he did not understand the Court’s
ruling precluding him from seeking a subpoena for the witness’s phone or Facebook messages.
He argued that the witness had testified that she could potentially have her recollection
refreshed by her phone. 	Thus, defense counsel stated that he would like to subpoena the
witness to bring her phone to the witness stand to refresh her recollection.
The Court found that it did not have enough of a record before it to rule on defendant’s
oral request, and therefore, instructed defendant Haney, or defendants collectively, to file any
appropriate brief or further motion in support of the oral request by Thursday, February 19,
2026, at 8:00 a.m. Eastern Standard Time. The Court stated that, dependent on its ruling, Radu
would be subject to recall.
Despite this direction, defendants filed no briefing on this issue. In light of the Court’s
prior determination that it did not have enough information to grant defendant Haney’s request,
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and in light of defendants’ failure to file any subsequent briefing addressing this issue, the
Court finds that defendants have abandoned any request to recall Radu for purposes of
cross-examining her to refresh her recollection with the contents of her cell phone. See Lewis
v. Elliot, No. 5:24-10-DCR-CJS, 2024 WL 1600666, at *2 (E.D. Ky. Feb. 28, 2024) (finding
that a party’s failure to fully comply with the court’s order constituted an abandonment of
claims). Accordingly, any request to recall Radu to the stand to refresh her recollection with
her cell phone is DENIED.
E. 	Conclusion
For the reasons stated, the Court finds as follows:
1. 	Defendants’ motion 	for 	a 	jury 	instruction 	regarding 	“medical 	necessity” 	is
DENIED;
2. 	Defendants’ motion for a jury instruction regarding subsequent remedial measures
is DENIED;
3. 	Defendants’ motion for an instruction to witness Jessica Cantwell is DENIED; and
4. 	Defendants’ request to recall witness Heather Radu is DENIED as abandoned.
IT IS SO ORDERED.
s/ Thomas A. Varlan
UNITED STATES DISTRICT JUDGE
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