United States of America v. Jeffrey Campbell (23-5298); Mark Dyer (23-5311)

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 25a0080p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JEFFREY CAMPBELL (23-5298); MARK DYER (23-5311),
Defendants-Appellants.
┐
│
│
│
│
│
│
│
│
┘
Nos. 23-5298/5311
Appeal from the United States District Court for the Western District of Kentucky at Louisville.
No. 3:17-cr-00087-1—Rebecca Grady Jennings, District Judge.
Argued: October 30, 2024
Decided and Filed: April 3, 2025
Before: CLAY, WHITE, and DAVIS, Circuit Judges.
_________________
COUNSEL
ARGUED: Ronald W. Chapman, II, CHAPMAN LAW GROUP, Troy, Michigan, for Jeffrey
Campbell. Achal J. Fernando-Peiris, Melissa M. Salinas, UNIVERSITY OF MICHIGAN, Ann
Arbor, Michigan, for Mark Dyer. Sofia M. Vickery, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Ronald W. Chapman, II, CHAPMAN
LAW GROUP, Troy, Michigan, for Jeffrey Campbell. Achal J. Fernando-Peiris, Melissa M.
Salinas, Matthew G. Rice, UNIVERSITY OF MICHIGAN, Ann Arbor, Michigan, for Mark
Dyer. Sofia M. Vickery, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.,
for Appellee.
>

-- 1 of 21 --

Nos. 23-5298/5311 United States v. Campbell, et al. Page 2
_________________
OPINION
_________________
HELENE N. WHITE, Circuit Judge. Defendants-Appellants Jeffrey Campbell and Mark
Dyer appeal their convictions and sentences for conspiracy to unlawfully distribute controlled
substances, conspiracy to commit health-care fraud, health-care fraud, and money laundering,
challenging the jury instructions, sufficiency of the evidence, and the district court’s evidentiary
rulings. Finding no error, we AFFIRM.
I. Background
Campbell was the owner and lead doctor at a primary-care facility called Physicians
Primary Care (PPC). Dyer was a nurse practitioner at PPC. A grand jury indicted them in 2020
on nine counts alleging Campbell and Dyer overprescribed opioids to their patients, and fifteen
counts alleging they engaged in a scheme to seek fraudulent reimbursements from health-
insurance providers.
For the alleged overprescribing, the grand jury charged Campbell with four counts and
Dyer with six counts of unlawfully distributing controlled substances; both Defendants with one
count of conspiring to unlawfully distribute controlled substances; Campbell with one count of
dispensing controlled substances resulting in death; and both Defendants with one count of
conspiring to dispense controlled substances resulting in death. Regarding the alleged insurance-
fraud scheme, the indictment alleged that Campbell and Dyer sought to obtain fraudulent
reimbursements from insurance companies for certain exercise, counseling, and physical-therapy
services that PPC provided. It also alleged that Campbell used the insurance proceeds to pay
substantial bonuses to Dyer and other PPC employees, which further incentivized those
employees to continue to fraudulently bill and order other medically unnecessary tests. For this
conduct, the grand jury charged Campbell with thirteen counts and Dyer with one count of
health-care fraud under 18 U.S.C. § 1347; both Defendants with one count of conspiring to
commit health-care fraud under 18 U.S.C. § 1349; and both Defendants with one count of
conspiracy to commit money laundering under 18 U.S.C. § 1956.

-- 2 of 21 --

Nos. 23-5298/5311 United States v. Campbell, et al. Page 3
The case proceeded to trial and the jury found Campbell guilty on one count of
conspiring to unlawfully distribute controlled substances, ten counts of health-care fraud and one
count of conspiracy to do the same, and one count of conspiracy to commit money laundering,
and found him not guilty on four counts of unlawful distribution, one count of dispensing
controlled substances resulting in death and one count of conspiracy to do the same, and one
count of health-care fraud. The jury found Dyer guilty on one count of conspiring to unlawfully
distribute controlled substances, one count of health-care fraud and one count of conspiracy to
commit the same, and one count of conspiracy to commit money laundering, and found him not
guilty on six counts of unlawfully distributing controlled substances, and one count of conspiracy
to distribute controlled substances resulting in death.
The district court sentenced Campbell to 105 months of imprisonment followed by three
years of supervised release, and Dyer to sixty months of imprisonment followed by three years of
supervised release. After Defendants appealed, the district court ordered Campbell to pay
$841,395.52 in restitution and Dyer to pay $105,085 in restitution.
II. Analysis
A. Jury Instructions Issues
Defendants were convicted under 21 U.S.C. § 846, which makes it a crime to conspire to
violate a drug law, specifically 21 U.S.C. § 841. Section 841 bars a defendant from “knowingly
or intentionally” distributing controlled substances “[e]xcept as authorized.” 21 U.S.C.
§ 841(a)(1). The regulation implementing this provision states that a medical practitioner is
authorized to distribute controlled substances when he does so “for a legitimate medical purpose
. . . acting in the usual course of his professional practice.” 21 C.F.R. § 1306.04.
After Defendants’ convictions, the Supreme Court decided Ruan v. United States,
597 U.S. 450 (2022). The Court held that “the statute’s ‘knowingly or intentionally’ mens rea
applies to authorization.” 597 U.S. at 454. In other words, a defendant unlawfully distributes
controlled substances only where he knows that he is “acting in an unauthorized manner, or
intend[s] to do so.” Id. Thus, liability cannot turn on “the mental state of a hypothetical
‘reasonable’ doctor.” Id. at 465. Rather, to obtain a conviction, the government must prove that

-- 3 of 21 --

Nos. 23-5298/5311 United States v. Campbell, et al. Page 4
the “defendant himself” subjectively knew that his acts were without a legitimate medical
purpose in the usual course of his professional practice. Id. at 465–67.
Defendants argue that the district court did not instruct the jury on the mens rea Ruan
requires.1 Although the trial here occurred before Ruan, this court measures jury instructions
against the law at “the time of appellate consideration.” United States v. Houston, 792 F.3d 663,
667 (6th Cir. 2015). Ruan involved doctors who were convicted of unlawful distribution under
§ 841—not conspiring to unlawfully distribute under § 846, as Campbell and Dyer were. But the
Supreme Court’s reading of the statute still affects what the government must prove to properly
convict Campbell and Dyer under § 846. Indeed, to prove a conspiracy to unlawfully distribute,
the government must prove beyond a reasonable doubt that the defendant “knowingly and
voluntarily joined” an “agreement” to violate Section 841. See, e.g., United States v. Potter, 927
F.3d 446, 453 (6th Cir. 2019). And after Ruan, a person cannot “knowingly” agree to violate
§ 841 unless he agrees to commit acts he knows are unauthorized. 597 U.S. at 454. Thus, the
government cannot prove a § 846 violation unless it proves that the conspirators in the agreement
knew they were acting—or intended to act—without a legitimate medical purpose in the usual
course of professional practice.
As an initial matter, the parties dispute the standard of review. “Harmless-error review
applies when the defendant preserves the objection [to jury instructions] at trial, and plain-error
review applies when he does not.” Houston, 792 F.3d at 666. We need not resolve that dispute
because, although Defendants have a strong argument that the jury instructions did not comply
with Ruan, this court’s precedents compel us to hold that no reversible error occurred under
either standard of review.
Nowhere do the jury instructions on the unlawful distribution and conspiracy to
unlawfully distribute counts clearly state that the government must prove that Defendants knew
they were “acting in an unauthorized manner, or intended to do so.” Ruan, 597 U.S. at 454. In
1Dyer raised this argument in his opening brief. Campbell adopted this argument in his Rule 28(i) letter.
See F.R.A.P. 28(i) (“In a case involving more than one appellant or appellee, including consolidated cases, any
number of appellants or appellees may join in a brief, and any party may adopt by reference a part of another’s
brief.”). The government does not dispute that Campbell properly raised this argument through adoption.

-- 4 of 21 --

Nos. 23-5298/5311 United States v. Campbell, et al. Page 5
explaining the “agreement” the jury must find to convict on the conspiracy count, the district
court stated that “[a] defendant ordinarily commits” a § 841 violation “when he knowingly,
intentionally, and unlawfully distributes or dispenses controlled substances and he knows the
substances are controlled substances.” R. 507, PID 11034. Defendants rightly assert that these
instructions do not explain that the conspirators in an unlawful distribution agreement must know
their actions were unauthorized, an element that is especially important where the defendants are
health-care professionals. Rather, the district court told the jury a defendant must know only two
things: (1) that he is “distributing” substances, and (2) that “the substances are controlled.” Id.
The government notes the district court later instructed the jury that medical professionals “must
not distribute and dispense controlled substances without a legitimate medical purpose or outside
the usual course of medical practice.” Id. But that admonition does not fix the problem because
it still does not instruct the jury that a conspirator must subjectively know he lacks authorization.
The closest the district court came to discussing knowledge of a lack of authorization was
in its deliberate-ignorance instruction. There, the district court told the jury:
If you are convinced that the defendant deliberately ignored a high probability
that the controlled substances were being dispensed or distributed outside the
course of professional practice and not for a legitimate medical purpose or that
patients were diverting these controlled substances for illegal purposes, then you
may find that he [] knew this was the case. . . . Carelessness or negligence or
foolishness on [the defendants’] part is not the same as knowledge and is not
enough to convict.
Id. at PID 11028–29. This instruction states that the jury can infer knowledge from deliberate
ignorance. But it still does not state that knowledge of a lack of authorization is a required
element of the offense itself. And the court’s instructions on the elements of unlawful
distribution pointedly omit any reference to knowledge of a lack of authorization. Simply put,
the district court never instructed the jury that it could convict Defendants only if it found that
they “knew or intended that [their] . . . conduct was unauthorized.” Ruan, 597 U.S. at 467. So it
is doubtful that these instructions conveyed the mens rea Ruan requires for distribution.
We do not, however, write on a clean slate. Since Ruan, this court has issued a trio of
opinions involving jury instructions nearly identical to those in this case. See United States v.

-- 5 of 21 --

Nos. 23-5298/5311 United States v. Campbell, et al. Page 6
Anderson, 67 F.4th 755 (6th Cir. 2023); United States v. Bauer, 82 F.4th 522 (6th Cir. 2023); and
United States v. Stanton, 103 F.4th 1204 (6th Cir. 2024). Those precedents require us to affirm.
First, in Anderson, this court held that a similar deliberate-ignorance instruction was
sufficient to satisfy Ruan’s requirements. 67 F.4th at 766. There, a doctor was convicted of
unlawful distribution under § 841. Id. The district court’s instructions on the substantive
elements of the offense did not state that the government had to prove the defendant knew he
lacked authorization. Id. But the district court also instructed that if “the defendant deliberately
ignored a high probability that the controlled substance was distributed or dispensed without a
legitimate medical purpose in the usual course of professional practice,” the jury could “find that
the defendant knew this was the case.” Id. And just as here, the district court explained that
“[c]arelessness, or negligence, or foolishness . . . are not the same as knowledge.” Id. We held
that the deliberate-ignorance instruction “substantially cover[ed]” Ruan’s requirements “through
the description of deliberate ignorance and the juxtaposition of ‘knowledge’ with ‘[c]arelessness,
negligence, or foolishness.’” Id.
Next, in Bauer, a doctor convicted of unlawful distribution under § 841 argued that Ruan
required reversal because the district court did not specifically instruct the jury that to be found
guilty, the defendant must know he lacked authorization. 82 F.4th at 530. But the Bauer jury
received “the same deliberate ignorance instruction” as in Anderson. Id. at 532. Conducting
plain-error review, the Bauer court noted that “the instructions in Anderson—and thus here as
well—do not fully comport with Ruan” because the jury was not “properly instructed to focus on
[the defendant’s] subjective knowledge and intent” to act without authorization. Id. at 533. But
the court affirmed because “Anderson controls and requires that we find the jury instructions
adequate.” Id. at 533.
And finally, Stanton applied these holdings to an appeal challenging a conviction for
conspiracy to unlawfully distribute under § 846. 103 F.4th at 1209. There, the district court
instructed the jury on deliberate ignorance, but the defendant argued on appeal that “the
instruction fail[ed] to follow Ruan.” Id. at 1213. Citing Anderson, we held that “[a] deliberate
ignorance instruction satisfies Ruan when, as here, it reminds the jury that this standard sits well
above carelessness, negligence, and mistake.” Id.

-- 6 of 21 --

Nos. 23-5298/5311 United States v. Campbell, et al. Page 7
Thus, this court has consistently held that Ruan is satisfied where the district court
provides a deliberate-ignorance instruction like the one here. Those holdings bind us. So
although “the instructions in Anderson—and thus here as well—do not fully comport with
Ruan,” we nonetheless conclude that Anderson and its progeny “require[] that we find the jury
instructions adequate.” Bauer, 82 F.4th at 533.2
Defendants’ attempts to distinguish this court’s precedents are unpersuasive.
First, Dyer asserts that the district court instructed the jury that it could convict only if it
found that Defendants acted “knowingly and intentionally, and not in good faith.” Dyer Brief at
23–24 (quoting R. 507, PID 11038). And the district court explained that “good faith” “means
that the defendant acted in accordance with what he reasonably believed to be proper medical
practice.” R. 507, PID 11049. Dyer notes that Ruan rejected a similar instruction: There, the
government sought to have the district court instruct the jury that a defendant lacked knowledge
when he put forth an “objectively reasonable good-faith effort.” Ruan, 597 U.S. at 452. The
Court rejected that instruction because an objectively-reasonable-good-faith standard “would
turn a defendant’s criminal liability on the mental state of a hypothetical ‘reasonable’ doctor,
rather than on the mental state of the defendant himself.” Id. But Dyer’s argument is foreclosed
by Bauer, where the district court gave a nearly identical good-faith instruction, and we held that
the instruction “muddied the water,” but did not sufficiently distinguish “the binding nature of
Anderson.” Id. at 532–33.
Second, Campbell argues that the deliberate-ignorance instruction here is unique because
it states: “If you are convinced that the defendant deliberately ignored a high probability that the
controlled substances were being dispensed or distributed outside the course of professional
practice and not for a legitimate medical purpose or that patients were diverting these controlled
substances for illegal purposes, then you may find that he knew this was the case.” R. 507, PID
11028–29 (emphasis added). Campbell asserts that this language effectively “equate[s]” patient
diversion with a lack of authorization, such that the jury could “convict if [it] found that
2Although our precedent compels us to affirm, we once again note that “these are not the instructions that
should be used in unauthorized distribution cases going forward.” Bauer, 82 F.4th at 533.

-- 7 of 21 --

Nos. 23-5298/5311 United States v. Campbell, et al. Page 8
Dr. Campbell deliberately ignored a high probability of patients diverting controlled substances
for illegal purposes.” Campbell Reply at 6.
Campbell attaches more significance to this language than warranted. The district court
did not “equate” lack of authorization with patient diversion, and it did not state that deliberate
ignorance of patient diversion satisfies an element of any crime. Rather, the district court simply
instructed the jury that it could infer knowledge of patient diversion from Defendants’ deliberate
ignorance of a high probability of such diversion. Although Campbell is correct that the
deliberate-ignorance instruction in Anderson did not contain similar language, this distinction
does not make Anderson less controlling here. Just as in Anderson, the district court here
discussed deliberate ignorance of a lack of authorization, and “juxtapose[d] . . . ‘knowledge’ with
‘[c]arelessness, negligence, or foolishness.’” Anderson, 67 F.4th at 766. The instructions here
thus retain the core attributes this court has held “cover[] the holding of Ruan.” Id.
Third, Dyer argues that “Anderson involved more severe conduct.” Dyer Reply at 11.
But that is irrelevant to whether the jury instructions were legally erroneous. The issue here is
whether the district court’s jury instructions “comport with Ruan,” as interpreted by this court’s
precedents. Bauer, 82 F.4th at 532 (quotation omitted). That issue does not turn on the conduct
of any particular defendant in any particular case.
Finally, Campbell argues that deliberate-ignorance instructions should be categorically
barred in prosecutions under the Controlled Substances Act. As Campbell sees it, district courts
use the instruction too “indiscriminately,” so it should be taken off the table altogether.
Campbell Brief at 25. That argument exceeds the bounds of this appeal. As we have explained,
this court has repeatedly held that deliberate-ignorance instructions are proper in unlawful-
distribution cases. See, e.g., Stanton, 103 F.4th 1204, 1212–13; Anderson, 67 F.4th at 766.
B. Sufficiency-of-Evidence Issues
Defendants argue that the government presented insufficient evidence to support their
convictions. This court reviews sufficiency-of-evidence challenges de novo. Bauer, 82 F.4th at
528–29. A conviction rests on sufficient evidence if “any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S.

-- 8 of 21 --

Nos. 23-5298/5311 United States v. Campbell, et al. Page 9
307, 319 (1979). In conducting this inquiry, this court considers all evidence “in the light most
favorable to the prosecution.” Bauer, 82 F.4th at 528–29.
1. Conspiracy to Unlawfully Distribute
Defendants first challenge their convictions of conspiracy to unlawfully distribute under
21 U.S.C. § 846. To convict a defendant of this crime, the government must prove beyond a
reasonable doubt: (1) “an agreement to violate drug laws,” (2) “knowledge and intent to join the
conspiracy,” and (3) “participation in the conspiracy.” United States v. Hall, 20 F.4th 1085,
1106 (6th Cir. 2022) (citation omitted). To meet this burden, the government need not present
“direct” evidence of an agreement; all that is required is “circumstantial evidence” that would
allow a jury to “infer[]” a “common plan.” United States v. Beals, 698 F.3d 248, 259 (6th Cir.
2012). Defendants argue that the government presented insufficient evidence of agreement and
participation. We disagree. The government provided sufficient evidence of an agreement
between Campbell and Dyer to unlawfully distribute controlled substances, their knowledge and
intent to join the conspiracy, and their participation in it.
One PPC employee testified that Campbell was the “decider” at PPC and the nurse
practitioners—including Dyer—did what Campbell instructed. R. 298, PID 3670. Dyer—who
had limited prescribing privileges under Kentucky law—sent prescriptions across the Indiana
border for Campbell to sign. Dyer refused to show his charts to PPC doctors other than
Campbell. The government’s experts testified that Defendants’ mutual prescribing practices
were often without a legitimate medical purpose in the usual course of their professional
practice. PPC employees testified that Campbell left pre-signed prescriptions for nurse
practitioners to hand out, prescribed opioids to patients without reviewing their medical charts,
and prescribed opioids to patients who had failed drug tests. And Dyer prescribed opioids after
examining patients for five minutes or less. The jury also heard testimony that PPC’s parking lot
and waiting area were often overcrowded and that many patients travelled great distances to
reach the clinic. This court has affirmed identical convictions based on similar evidence. See,
e.g., Stanton, 103 F.4th at 1210–11 (“pre-printed” prescriptions after examinations that lasted
“only a few minutes,” “patients traveling long distances from out of state,” and “prescriptions to
patients who failed drug screens”); United States v. Elliott, 876 F.3d 855, 863–64 (6th Cir. 2017)

-- 9 of 21 --

Nos. 23-5298/5311 United States v. Campbell, et al. Page 10
(patients traveling far distances to obtain opioid prescriptions and opioid-seeking patients
crowding the parking lot).
Campbell and Dyer respond by noting that the government’s experts at trial focused on
five patients—four of whom were named in the indictment under the unlawful-distribution
counts of which Defendants were acquitted. Thus, Defendants argue, the jury’s guilty verdict on
the conspiracy count must have been based solely on a conspiracy to unlawfully distribute to the
one patient on which the government’s experts focused who was not named in the indictment.
Pointing to our holding that a § 846 conspiracy must “involve more than an agreement to transfer
drugs from one party to another,” United States v. Wheat, 988 F.3d 299, 308–09 (6th Cir. 2021),
Defendants argue that the jury had insufficient evidence to convict on the conspiracy count.
This argument is unpersuasive. Even assuming the acquittals on the § 841 counts mean
that this court must disregard the patients named in those counts, there was ample evidence to
convict Defendants of conspiracy to unlawfully distribute. Although the government’s experts
focused their testimony on five named patients, the jury heard about countless other patients who
received opioids from Campbell and Dyer. For example, Dyer saw up to fifty patients every
morning, and prescribed opioids to more than 90% of them. Campbell signed many of the
scripts Dyer gave to those patients, and there was testimony that Campbell prescribed opioids to
other patients who had failed drug tests. At most, the acquittals on the § 841 counts mean that
the jury found reasonable doubt as to whether Defendants unlawfully distributed to the four
specific patients named in those counts. But the jury could still reasonably find that Defendants
conspired to unlawfully distribute to other patients on other occasions.
Further, even if this verdict were legally inconsistent, that would not be a basis for
reversal. When examining the sufficiency of evidence on a particular count, courts ask “whether
the evidence adduced at trial could support any rational determination of guilt beyond a
reasonable doubt” as to that count. United States v. Powell, 469 U.S. 57, 67 (1984). That
analysis “should be independent of the jury’s determination that evidence on another count was
insufficient.” Id. Simply put, it is impossible to know why a jury renders a legally inconsistent
verdict. The argument that an acquittal on one count means there was insufficient evidence on
another “necessarily assumes that the acquittal . . . was proper” while the conviction was

-- 10 of 21 --

Nos. 23-5298/5311 United States v. Campbell, et al. Page 11
improper. Id. at 68. But it is just as possible that the acquittal arose “through mistake,
compromise, or lenity.” Id. at 65. Where the acquittal is mistaken, “the Government has no
recourse if it wishes to correct the jury’s error”—it cannot, for example, re-prosecute a defendant
on the assumption that the jury mistakenly acquitted. Id. Thus, a defendant has no recourse
based on the assumption that the error ran in the other direction. Id.
Resisting that conclusion, Defendants point to United States v. Randolph, in which this
court reversed based on “inconsistency” in the jury’s findings. 794 F.3d 602, 611–12 (6th Cir.
2015). But that case involved “an internal inconsistency in the same count”—namely, the jury
convicted the defendant of conspiring to distribute illegal drugs, but stated on the verdict form
that the amount of drugs involved was “none.” Id. at 608, 611. Randolph held that this single-
count inconsistency was “different” from inconsistency across “separate counts charg[ing]
separate crimes in a single indictment.” Id. at 609–11. The latter inconsistency is not a basis for
reversal. See, e.g., Powell, 469 U.S. at 67; United States v. Lawrence, 555 F.3d 254, 261 (6th
Cir. 2009).
In sum, there was sufficient evidence to support Defendants’ convictions of conspiracy to
unlawfully distribute controlled substances.
2. Health-Care Fraud and Conspiracy to Commit Health-Care Fraud
Defendants argue that there was insufficient evidence to support their convictions of
health-care fraud and conspiracy to commit health-care fraud under 18 U.S.C. §§ 347, 349. To
prove health-care fraud, the government must prove beyond a reasonable doubt that the
defendant: (1) “knowingly devised a scheme or artifice to defraud a health care benefit program
in connection with the delivery of or payment for health care benefits, items or services,”
(2) “executed or attempted to execute this scheme or artifice to defraud,” and (3) “acted with
intent to defraud.” United States v. Persaud, 866 F.3d 371, 380 (6th Cir. 2017) (citation
omitted). To prove a conspiracy to commit health-care fraud, the government must prove
beyond a reasonable doubt: (1) “an agreement” to commit health-care fraud, (2) “knowledge and
intent to join the conspiracy,” and (3) “an overt act constituting actual participation in the
conspiracy.” United States v. Hughes, 505 F.3d 578, 593 (6th Cir. 2007).

-- 11 of 21 --

Nos. 23-5298/5311 United States v. Campbell, et al. Page 12
At trial, the government proved these counts by presenting evidence that Defendants
fraudulently billed insurers for certain exercise, counseling, and physical-therapy services. The
evidence established that Campbell created an exercise program at PPC called “MedFit.”
R. 292, PID 3125. MedFit was a “small gym set up at the clinic.” Id. That gym had a
“treadmill,” “bike,” “elliptical,” and “weights.” R. 305, PID 3916. A patient participating in
MedFit would visit PPC, spend a “few minutes” with a provider while that provider checked
vitals, and then exercise at the gym. R. 305, PID 3916–18; R. 298, PID 3570–71. These
workouts were largely supervised by PPC employee Mark Brandenburg, who was neither a
doctor nor a health-care professional of any kind; rather, he was Campbell’s “pool guy.” R. 305,
PID 3916. PPC billed insurance companies for MedFit using the 99214 billing code. That
billing code is permitted only for medical appointments that involve a detailed review of the
patient’s medical history, a detailed exam, and comprehensive medical decision-making.
Similarly, PPC used the 99214 code to bill insurers for PPC’s physical-therapy and
counseling services. PPC’s medical providers had no involvement in these services—except that
when a patient visited for counseling or physical therapy, a doctor or nurse practitioner would
spend a few minutes checking the patient’s vitals. The physical-therapy service was supervised
by someone who was not a licensed physical therapist.
Defendants’ primary argument is that their billing practices were actually legal.
Defendants rely on a practice called “incident-to” billing, under which a provider can bill using
the 99214 code for services provided by “mid-level practitioners” who are not doctors.
Campbell Brief at 39. But the government presented evidence that Defendants’ services would
not qualify for incident-to billing. For example, two insurers Defendants billed—Medicare and
Indiana Medicaid—permit incident-to billing only for services that are monitored and supervised
by a doctor according to a doctor-created plan of care. A reasonable jury could thus conclude
that Defendants’ services did not meet those criteria because MedFit involved almost no
interaction with any doctor. Further, the jury heard evidence that another insurer billed by

-- 12 of 21 --

Nos. 23-5298/5311 United States v. Campbell, et al. Page 13
PPC—Kentucky Medicaid—did not permit incident-to billing “under any circumstances.”
R. 277, PID 2201.3
Defendants also argue there was insufficient evidence that they acted with an intent to
defraud. That argument, too, is unpersuasive. In PPC’s Medicare enrollment agreement,
Campbell accepted responsibility for complying with Medicare regulations. And Dyer testified
that he understood the requirements for 99214 billing. From this evidence, a jury could
reasonably infer that Campbell and Dyer understood the requirements for the billing code they
used and acted with an intent to defraud insurers by billing for services that did not meet those
requirements. See, e.g., Anderson, 67 F.4th at 770–71 (sufficient evidence of intent to defraud
where defendant doctor “sign[ed] a provider agreement in which he agreed to render services in
accordance with federal law”).
3. Money Laundering
Defendants argue that the evidence at trial was insufficient to support their convictions
for conspiring to launder money under 18 U.S.C. § 1956. To prove this crime, the government
must show that the defendant: (1) knowingly and voluntarily joined an agreement to conduct a
financial transaction from the proceeds of illegal activity, (2) knew the money came from illegal
activity, and (3) intended to promote that activity. United States v. Tolliver, 949 F.3d 244, 248
(6th Cir. 2020). The government alleged that Defendants conspired to launder money by using
the insurance proceeds from PPC’s fraudulent billing scheme to pay employees like Dyer hefty
bonuses, which incentivized further fraudulent billing and other unnecessary testing.
3Campbell also argues that the indictment was insufficient because it did not mention “incident-to” billing.
An indictment must charge every element of a criminal offense. See, e.g., Almendarez-Torres v. United States,
523 U.S. 224, 228 (1998). It must also be “specific enough to allow [the defendant] to plead an acquittal or
conviction as a bar to future prosecutions for the same offense.” United States v. Olive, 804 F.3d 747, 752 (6th Cir.
2015). Here, the third superseding indictment was specific about the government’s health-care-fraud allegations. It
stated that Defendants “fraudulently billed various health care benefit programs by coding physical therapy,
counseling, and exercise . . . services using evaluation and management codes in order to obtain a higher rate of
reimbursement.” R. 110, PID 433–35. Defendants responded to that allegation at trial by claiming that they could
bill for those services using “incident-to” billing. The government responded in turn by calling an expert who
established that Defendants’ services likely could not be billed as “incident-to.” This latter assertion was not
mentioned in the indictment because it was a response to Defendants’ trial theory. Campbell has not explained why
this makes the indictment insufficient.

-- 13 of 21 --

Nos. 23-5298/5311 United States v. Campbell, et al. Page 14
Defendants’ primary argument is that there was insufficient evidence of money
laundering because there was insufficient evidence of health-care fraud—as they see it, this case
does not involve the “proceeds of illegal activity” to begin with. Campbell Brief at 45. This
argument is unpersuasive because there was sufficient evidence of health-care fraud.
Beyond that, Dyer argues that there was insufficient evidence to show that he knew his
bonus payments were the proceeds of health-care fraud. But the jury heard evidence that Dyer
signed billing sheets marked with the 99214 code, even though he knew the services provided
were insufficient for that code. Accordingly, a jury could reasonably find that Dyer knew PPC
was profiting from unlawful billing, and that those profits were used to pay PPC’s expenses,
including bonuses.
C. The District Court’s Evidentiary Rulings
Dyer next argues that his conviction should be reversed based on evidentiary errors at
trial. Campbell adopts these arguments in his Rule 28(i) Letter. This court generally reviews a
district court’s evidentiary rulings for abuse of discretion. United States v. Dietz, 577 F.3d 672,
688 (6th Cir. 2009). But when the objection is raised “for the first time on appeal,” this court
reviews for plain error. United States v. Knowles, 623 F.3d 381, 385 (6th Cir. 2010) (collecting
cases).
1. The Testimony of Experts Denham and King
Defendants argue that the district court erred in admitting the testimony of two
government experts, Denham and King. We review for abuse of discretion because Defendants
preserved this objection below.
Defendants primarily argue that the district court should not have permitted Denham and
King to testify to general medical standards of care. For example, the government asked
Denham and King to testify to what “should have happened” if proper medical protocol was
followed. R. 284, PID 2524. In Defendants’ view, this testimony “set forth [a] lesser civil
standard of care” by suggesting that Campbell and Dyer could be convicted for mere
malpractice. Dyer Brief at 28.

-- 14 of 21 --

Nos. 23-5298/5311 United States v. Campbell, et al. Page 15
We disagree. The government can prove knowledge of a lack of authorization “by
reference to objective criteria,” such as “objective standard[s] [of] medicine” and “accepted
limits” of medical practice. Ruan, 597 U.S. at 467 (quotations omitted). Indeed, it is
“impossible” for the government to prove that a defendant was “acting outside the usual course
of professional practice . . . without mentioning the usual standard of care.” United States v.
Volkman, 736 F.3d 1013, 1023 (6th Cir. 2013) (quotations omitted), vacated on other grounds,
574 U.S. 955 (2014).
Defendants next argue that the district court abused its discretion in allowing Denham
and King to discuss the 2016 CDC guidelines because the offenses occurred between 2010 and
2014. Given the timeline mismatch, these guidelines seem to have very little probative value
here. But Defendants have not shown that this discussion of the 2016 guidelines caused any
harm. In response to an objection from defense counsel, the government elicited testimony from
both experts to clarify that the guidelines were published after the offense conduct. And both
experts told the jury that they did not rely on the guidelines in forming their opinions.
Defendants argue that the experts borrowed from the 2016 guidelines the phrase “start low, go
slow”—a now-common phrase meant to signify that doctors should be cautious when prescribing
opiates. Dyer Brief at 30. But King explained that this was a “general principle of medicine,”
and “not something that has just newly come about.” R. 296, PID 3441. Overall, any testimony
on these guidelines was a “minor point” that caused no harm and does not justify reversal.
United States v. Maliszewski, 161 F.3d 992, 1008 (6th Cir. 1998).

-- 15 of 21 --

Nos. 23-5298/5311 United States v. Campbell, et al. Page 16
2. The Government’s Summary Bar Graph
Defendants argue that the district court erred in admitting a summary bar graph the
government created that compares Dyer’s bonus earnings to those of other PPC employees.
Defendants argue on appeal that the graph should have been excluded under Federal Rules of
Evidence 403 and 1006. At trial, Defendants objected that the graph was cumulative and not
relevant. Because the arguments raised on appeal were not raised at trial, we review for plain
error. Knowles, 623 F.3d at 385.
Defendants argue that the graph is unfairly prejudicial under Rule 403 and inadmissible
under Rule 1006 because it lacks “context”—they say that Dyer earned higher bonuses for
legitimate reasons, e.g., he worked longer hours and had more experience. Dyer Brief at 32–33.
But Defendants do not dispute that the graph is accurate. They do not, for example, argue that
Dyer made less in bonuses than the graph lists. What is disputed here is why Dyer’s bonuses
were so high, and both parties had the opportunity to present evidence and argument to the jury
on that issue. On that point, the chart is agnostic—as it should be. A summary chart cannot be
“annotated with the conclusions . . . or inferences drawn by the proponent.” United States v.
Bray, 139 F.3d 1104, 1110 (6th Cir. 1998). On its face, this chart simply conveyed factual data
“accurately” and “correctly,” id., which means its “probative value was not substantially
outweighed by any risk of unfair prejudice,” United States v. Weinstock, 153 F.3d 272, 278 (6th
Cir. 1998).
3. The Testimony of DEA Investigator Jason Smith
Defendants next argue that the district court erred in admitting the testimony of DEA
Investigator Jason Smith. Defendants raised this objection below, so we review for abuse of
discretion. Smith testified about “red flags” typically associated with criminal activity in opioid
prescribing. R. 487, PID 9352–71. Defendants argue that this testimony required “specialized
knowledge” and thus could only be “offered by an expert.” Dyer Brief at 34.
Defendants’ argument seems to rest on the assumption that a law-enforcement officer
cannot give expert testimony unless the government formally offers him as an expert at trial, and

-- 16 of 21 --

Nos. 23-5298/5311 United States v. Campbell, et al. Page 17
the district court formally deems him to be one.4 That is not correct. A trial court “does not
‘certify’ or declare witnesses to be ‘experts’ when ‘tendered’ as such at trial.” United States v.
Johnson, 488 F.3d 690, 698 (6th Cir. 2007) (citation omitted). Indeed, a trial judge should
“refrain from declaring before the jury that a law enforcement officer is considered an expert,”
United States v. Neeley, 308 F. App’x. 870, 876 (6th Cir. 2009), because doing so “lends a note
of approval to the witness that inordinately enhances the witness’s stature,” Johnson, 488 F.3d at
697. Instead, the government “should pose qualifying and foundational questions” and then
“proceed to elicit opinion testimony.” Id. at 698. At any point, the defendant is free to object
and argue that the expert is not qualified to give the opinion testimony he is offering. Id.
Defense counsel raised such an objection here, and the trial judge overruled it because
Smith “established that he’s done these types of investigations,” and that he’s had “training in
diversion.” R. 487, 9356–57. That conclusion was not an abuse of discretion. Indeed, this court
has held that an officer with similar experience was qualified to testify about “the characteristics
of a typical pill mill.” United States v. Gowder, 841 F. App’x 770, 781 (6th Cir. 2020).
4. The Testimony of PPC Employee Dawn Antle
Finally, Defendants argue that the district court erred in admitting certain testimony from
Dawn Antle, a former PPC employee. Antle testified that PPC prescribed “a lot” of narcotics.
R. 298, PID 3564. Defendants argue that this is a “qualitative assessment” that a lay witness like
Antle cannot provide. Dyer Brief at 36. Defendants raised this objection below, so we review
for abuse of discretion.
In full context, the government’s trial counsel asked: “from the patient charts that you
reviewed, what percentage of [PPC] patients were on narcotics?” R. 298, PID 3564. Antle
responded, “I’d say a good 90 percent. A lot.” Id. Counsel then asked, “based on the patients
you saw and the patient files that you saw . . . from your personal knowledge, what was the . . .
overall assessment of narcotic prescribing based on what you saw?” Id. at 3565. Antle
responded, “[t]here were a lot of narcotics. A lot of high-dose narcotics.” Id.
4The government identified Smith as an expert witness before trial.

-- 17 of 21 --

Nos. 23-5298/5311 United States v. Campbell, et al. Page 18
Antle’s first answer was purely factual and was “rationally based on [her] perception.”
Fed. R. Evid. 701. Although her second answer included a more qualitative assessment, any
error in admitting that answer was harmless and cumulative of other evidence showing that
Campbell and Dyer prescribed opioids in ways well outside of professional norms. See infra
Part B.1.
D. Sentencing and Restitution Issues
1. Drug Quantity Calculation
Dyer argues that the district court wrongly calculated “drug quantity” in determining his
sentence. Dyer Brief at 47–49. The Sentencing Guidelines require a sentencing judge to
calculate the quantity of drugs for which a defendant is responsible in determining the
defendant’s base offense level. U.S.S.G. § 2D1.1. “[A]n estimate will suffice,” if supported by a
preponderance of the evidence. United States v. Jeross, 521 F.3d 562, 570 (6th Cir. 2008)
(quotation omitted). A district court should not punish a defendant based on an estimate that is
“greater than” the quantity for which he is “actually responsible.” Id. (quotation omitted).
Because this calculation is a factual finding, this court reviews it for clear error. Id.
Here, the district court calculated Dyer’s drug quantity by using the weight of drugs
prescribed to seven patients. Dyer argues that there was insufficient evidence to “show these
seven prescriptions were unlawful.” Dyer Brief at 48. But three separate experts agreed that the
prescriptions listed in those patient files had no legitimate medical purpose and were outside the
usual course of Dyer’s professional practice. Dyer responds that his own experts contradicted
the government’s. But the district court was entitled to credit the government’s experts over
those of the defense. See, e.g., United States v. Mosley, 53 F.4th 947, 962 (6th Cir. 2022) (“we
afford great weight to the district court’s credibility determinations” in calculating drug
quantity).
Of course, where there is conflicting testimony as to drug quantity, the trial court should
“err on the side of caution.” United States v. Walton, 908 F.2d 1289, 1302 (6th Cir. 1990). But
the district court did so. The district court selected seven patient files out of “thousands and
thousands and thousands of files” involved in a “seven-year conspiracy.” R. 428, PID 7503.

-- 18 of 21 --

Nos. 23-5298/5311 United States v. Campbell, et al. Page 19
Then, to offset the possibility that any of the prescriptions within the files might be legitimate,
the district court reduced its calculation by one-third. Id. at 7505. And the district court refused
to consider any of the patients named in the indictment’s acquitted counts. Id. It is thus highly
unlikely that the district court punished Dyer for a drug quantity “greater” than the quantity for
which he was “actually responsible.” Jeross, 521 F.3d at 570. The district court’s calculation
was supported by a preponderance of the evidence.
2. Use of Intended Loss Instead of Actual Loss
Defendants argue that the district court erred in using the “intended loss” of Defendants’
crimes to calculate their sentence. The Sentencing Guidelines direct a district court to increase a
defendant’s offense level based on the amount of “loss” the defendant caused. U.S.S.G.
§ 2B1.1(b). In its commentary on the Guidelines, the Sentencing Commission explained that
“loss” means “the greater of actual loss or intended loss.” U.S.S.G. § 2B1.1 cmt. n.3(A). But
this court defers to Guidelines commentary only where the text of the Guideline itself is
“genuinely ambiguous” after exhausting “all the traditional tools of statutory construction.”
United States v. You, 74 F.4th 378, 397 (6th Cir. 2023) (quoting Kisor v. Wilkie, 588 U.S. 558,
575 (2019)). Defendants argue that the Guidelines are not ambiguous—as they see it, “loss” can
only mean “actual loss,” not “intended loss.” Dyer Brief at 51–52; Campbell Brief at 50.
Our precedent forecloses this argument. In You, this court held that the Guidelines are
sufficiently ambiguous to permit considering the commentary, so a district court may properly
consider intended loss. 74 F.4th at 397–98. Thus, the district court did not err.
3. The Intended-Loss Calculation
Defendants also appeal the district court’s calculation of intended loss. The district court
calculated Defendants’ intended loss by summing all insurance claims Defendants submitted
between January 2012 and December 2014 for the exercise, counselling, and physical-therapy
services related to the health-care-fraud counts. Under that metric, the district court found that
Campbell was responsible for $3.9 million in intended loss and Dyer was responsible for
$601,467.

-- 19 of 21 --

Nos. 23-5298/5311 United States v. Campbell, et al. Page 20
Defendants argue that the district court used an unreliable data set, failed to account for
their knowledge of common insurance-reimbursement practices, and failed to credit the value of
services rendered. Accounting for these alleged errors, Campbell argues that his loss should
have been calculated at around $437,000. Dyer argues his loss should have been calculated at
$100,000.
We need not resolve these objections because any error in the intended-loss calculation
was harmless. When a district court “misapplie[s] the Guidelines,” we may still affirm if “the
error did not affect the district court’s selection of the sentence imposed.” Williams v. United
States, 503 U.S. 193, 203 (1992). In deciding whether a Guidelines error is harmless, we
examine how the district court’s “application of an incorrect[] higher Guidelines range” affected
“the sentence [the defendant] received.” Molina-Martinez v. United States, 578 U.S. 189, 201
(2016). We also consider “relevant statements by the judge” to determine whether “the district
court thought the sentence it chose was appropriate irrespective of the Guidelines range.” Id. A
Guideline-calculation error is harmless where the district court states it “would impose the same
sentence” regardless of the error, United States v. Obi, 542 F.3d 148, 156 (6th Cir. 2008), and
explains how “proper use of the [18 U.S.C.] § 3553(a) factors” “independently supports” the
sentence, United States v. O’Georgia, 569 F.3d 281, 288 (6th Cir. 2009).
Here, any error in the intended-loss calculation did not affect Defendants’ sentences.
Applying the intended-loss figures Defendants challenge, the district court determined that
Campbell’s Guidelines range was 210–262 months, and Dyer’s was 97–121 months. But the
court found that the sentencing factors under 18 U.S.C. § 3553(a) required a sentence well
outside the Guidelines range: 105 months for Campbell and sixty months for Dyer. As the
district court saw it, these sentences were long enough to provide “just punishment” and reflect
the Defendant’s “very serious” crimes. R. 428, PID 7557–58, 7565. And they also aligned with
“other sentences given out in similar cases” and accounted for the fact that Defendants were not
“candidate[s] for recidivism” and had strong “family ties.” Id. at 7559, 7562, 7565. The court
thus concluded that “consider[ing] the [18 U.S.C. §] 3553 factors as a whole,” it “would have
sentenced [Defendants] the same regardless” of Defendants’ “objections to the guideline range.”
Id. at 7562, 7567.

-- 20 of 21 --

Nos. 23-5298/5311 United States v. Campbell, et al. Page 21
Further, if the district court had adopted Defendants’ intended-loss calculations,
Campbell’s Guidelines range would have been 121–151 months, and Dyer’s Guidelines range
would have been 87–108 months. See U.S.S.G. §§ 2B1.1, 3D1.4. But the sentences the district
court imposed fall well below even these more favorable Guidelines ranges. In sum, the record
makes clear that any error in the intended-loss calculation “did not affect the district court’s
selection of the sentence imposed.” Williams, 503 U.S. at 203.
4. Restitution
Defendants also argue that the district court erred in calculating restitution. That
argument is beyond the scope of this appeal. See Manrique v. United States, 581 U.S. 116
(2017). A district court may sometimes enter an initial judgment “imposing certain aspects of a
defendant’s sentence” while “deferring a determination of the amount of restitution until entry of
a later, amended judgment.” Id. at 118. In those cases, a defendant must file a notice of appeal
as to the restitution “following the amended judgment.” Id. If the defendant files only “a single
notice of appeal” “between the initial judgment and the amended judgment,” then the “later-
determined restitution amount” is outside the scope of the appeal. Id. This requirement is a
mandatory claims-processing rule, so when the government timely raises the issue, this court has
no “discretion to overlook” the error. Id. at 125.
Here, the district court initially entered judgment on April 21, 2023, and stated that
restitution would “be determined by further order[].” R. 420, PID 7347; R.421, PID 7355.
Defendants then appealed. Nearly nine months later, on January 10, 2024, the district court
entered its restitution order. But Defendants did not file an additional notice of appeal. They
have thus failed to “invoke appellate review of the later-determined restitution amount.”
Manrique, 581 U.S. at 118. And because the government has timely raised the issue, this court
cannot consider Defendants’ objections to the restitution order. Id. at 125.
III. Conclusion
For the foregoing reasons, we affirm Defendants’ convictions and sentences.

-- 21 of 21 --