United States of America v. LISA HOFSCHULZ and ROBERT HOFSCHULZ

In the
United States Court of Appeals
for the Seventh Circuit
____________________
Nos. 21-3403 & 21-3404
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LISA HOFSCHULZ and ROBERT HOFSCHULZ,
Defendants-Appellants.
____________________
Appeals from the United States District Court
for the Eastern District of Wisconsin.
No. 18-cr-145-PP — Pamela Pepper, Chief Judge.
____________________
ARGUED SEPTEMBER 8, 2023 — DECIDED JUNE 25, 2024
____________________
Before SYKES, Chief Judge, and ROVNER and KIRSCH, Circuit
Judges.
SYKES, Chief Judge. A jury convicted Lisa Hofschulz, a
nurse practitioner, of conspiracy and 14 counts of distrib-
uting drugs in a manner unauthorized by the Controlled
Substances Act, including one count of unlawful drug
distribution resulting in the death of a patient. See 21 U.S.C.
§ 841(a)(1), (b)(1)(C); id. § 846. The charges arose out of her
operation of a “pain clinic” as a front for a pill mill from

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2 Nos. 21-3403 & 21-3404
which she dispensed opioid prescriptions for cash-only
payment. Robert Hofschulz, her then ex-husband, was also
convicted for his role in helping her run the opioid mill. (The
couple have since remarried.)
The Hofschulzes challenge their convictions on three
grounds. First, they argue that the jury instructions were
inconsistent with the Supreme Court’s decision in Ruan v.
United States, 597 U.S. 450 (2022), issued shortly after they
were sentenced. Ruan held that in a § 841 case against a
medical professional for distributing drugs in an unauthor-
ized manner, the statute’s intent requirement applies to the
act of distribution and lack of authorization. Our circuit has
long followed this rule, even before Ruan. In accordance
with our pre-Ruan caselaw, the district judge instructed the
jury that the government must prove beyond a reasonable
doubt that the Hofschulzes intended to distribute controlled
substances and intended to do so in an unauthorized man-
ner. There was no instructional error.
The Hofschulzes also argue that the judge wrongly per-
mitted the government’s medical expert to testify about the
standard of care in the usual course of professional pain
management. Circuit precedent says otherwise. Finally, the
Hofschulzes challenge the sufficiency of the evidence to
support their convictions. This argument is frivolous. We
affirm.
I. Background
In June 2018 Lisa Hofschulz, a licensed nurse practition-
er, was charged with one count of conspiracy to distribute
controlled substances in an unauthorized manner, 21 U.S.C.
§§ 841(a)(1), 846; thirteen counts of distributing controlled

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Nos. 21-3403 & 21-3404 3
substances in an unauthorized manner, id. § 841(a); and one
count of unlawful distribution of controlled substances
resulting in death, id. § 841(a)(1), (b)(1)(C). The grand jury
also indicted Robert Hofschulz, Lisa’s then ex-husband and
business partner, for conspiracy and aiding and abetting
four of the drug-distribution counts.
After significant delay—some necessitated by the pan-
demic but most instigated by the defense—the case finally
proceeded to trial in August 2021. The government intro-
duced a mountain of evidence of the defendants’ guilt; a
summary will suffice for present purposes. The evidence
established that in late 2014 the Hofschulzes opened a “pain
management clinic” in Wauwatosa, Wisconsin—a suburban
community just west of Milwaukee—as a front for an opioid
mill. Over the next two years, Lisa prescribed millions of
opioid pills in exchange for cash-only payment. Robert, who
is not a medical professional, helped Lisa set up the clinic
and served as its registered agent and business manager.
For their first year in operation, the Hofschulzes ran the
clinic from a single 8x8-foot room adjacent to a chiropractic
office, leasing space from another couple and sometimes
giving their landlords large-quantity opioid prescriptions in
lieu of rent. The clinic had no exam table or medical equip-
ment. Lisa did not take patients’ vital signs, perform physi-
cal examinations, review medical records, or order imaging
or tests to diagnose illness or injury.
The clinic collected a cash-only fee of $200 to $300 per
visit from each patient, even though a majority were on
Medicaid and thus were entitled to free medical care. Nearly
all patients who visited the clinic—99 percent of them—left
with a prescription for an opioid drug (sometimes more than

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4 Nos. 21-3403 & 21-3404
one). Few had conditions that justified treatment with
opioids; most patients were suffering from addiction or
untreated mental illness rather than seeking legitimate
medical care for a confirmed injury or illness.
By late 2015 the Hofschulzes had too many “patients”
(and a growing waiting list) for the one-room “clinic,” so
they moved to a somewhat larger temporary location in a
nearby office building. They also began to bring on addi-
tional nurse practitioners, hiring only newly minted nurses
who lacked work experience. Most lasted no more than a
few months. Several of these short-term nurses testified at
trial, explaining that they raised concerns with the Hofschul-
zes that the clinic’s operations did not conform to standard
medical practice. Their efforts to sound the alarm were
rebuffed, and many of the nurses either resigned within a
few months or were fired after expressing concerns about
Lisa’s prescribing practices and the clinic’s lack of standard
medical care.
One patient fatally overdosed on opioids Lisa had pre-
scribed for him. Frank Eberl came to the clinic repeatedly for
more than a year, leaving each time with opioid prescrip-
tions in amounts appropriate for end-of-life cancer patients
(he was not a cancer patient). Eberl overdosed and died four
days after receiving a high-dose opioid prescription from
Lisa.
For the two-year period from 2015 through 2016, Lisa
wrote prescriptions for more than 2 million opioid pills,
collecting over $2 million in cash from patients, many of
whom were repeat customers and obviously addicted.
Indeed, during this period Lisa Hofschulz was the leading

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Nos. 21-3403 & 21-3404 5
prescriber of oxycodone and methadone among all Medicaid
prescribers in Wisconsin.
In July 2016 Lisa was called away from Wisconsin to tend
to a family matter, so she prewrote and presigned numerous
opioid prescriptions and directed two newly hired nurses—
just out of nursing school—to dispense them to patients
while she was gone. They refused, objecting that they had
not yet completed their licensing and that dispensing pre-
written prescriptions was unsafe and illegal. Robert fired
one of the nurses for her refusal to comply with Lisa’s
instructions, replacing her with a registered nurse from a
temporary agency who was willing to distribute the prewrit-
ten prescriptions. The temp-agency nurse distributed more
than 550 presigned opioid prescriptions while Lisa was
away.
The government also presented opinion testimony from
Dr. Timothy King, a medical expert who explained the
standard of care for legitimate medical practice in pain
management. Finally, the government called several of the
clinic’s patients as witnesses; they confirmed the facts we’ve
just described about the clinic’s operations. There was more
to the government’s case, but further elaboration is unneces-
sary.
As we’ve noted, the Hofschulzes were charged with vio-
lating the Controlled Substances Act, which makes it a crime
to “knowingly or intentionally … manufacture, distribute, or
dispense … a controlled substance” “[e]xcept as authorized”
by the Act. § 841(a). As relevant here, registered medical
professionals may prescribe controlled substances to their
patients, but a prescription is “authorized” and thus except-
ed under the Act only when a registered medical profession-

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6 Nos. 21-3403 & 21-3404
al issues it “for a legitimate medical purpose … acting in the
usual course of his professional practice.” 21 C.F.R.
§ 1306.04(a).
Accordingly, the judge instructed the jury on the drug-
distribution counts as follows:
For you to find a defendant guilty of distrib-
uting and dispensing a controlled substance,
the government must prove the following ele-
ments beyond a reasonable doubt as to the de-
fendant and the charge that you are
considering:
First, that that defendant knowingly caused to
be distributed or dispensed the controlled sub-
stance alleged in the charge you are consider-
ing;
Second, that that defendant did so by intention-
ally distributing or dispensing the controlled sub-
stance outside the usual course of professional
medical practice, and not for legitimate medical
purpose; and
Third, that that defendant knew that the sub-
stance was some kind of a controlled sub-
stance. (Emphasis added.)
The judge gave an additional instruction for the charge of
unlawful distribution resulting in death: “In order to estab-
lish that the oxycodone and morphine distributed by Lisa
Hofschulz resulted in the death of Frank Eberl[,] the gov-
ernment must prove that Frank Eberl died as a result of his
use of the oxycodone and morphine that Lisa Hofschulz
distributed … .” This instruction also included an explana-

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Nos. 21-3403 & 21-3404 7
tion of the but-for causation standard adopted in Burrage v.
United States, 571 U.S. 204 (2014).
The jury found both defendants guilty on all counts. Lisa
moved for judgment of acquittal or alternatively, for a new
trial. She argued primarily that the evidence was insufficient
to prove that she had issued prescriptions without a legiti-
mate medical purpose. The judge denied the motion, ruling
that the evidence we’ve just recounted was easily sufficient
for a reasonable jury to find that Lisa had prescribed con-
trolled substances outside the usual course of medical
practice and not for legitimate medical purposes. As the
judge put it: “[A] reasonable jury could look at these facts
and conclude beyond a reasonable doubt that Lisa Hof-
schulz was issuing prescriptions for other than a legitimate
purpose—that she was issuing all of these prescriptions
under these circumstances for purposes of making money,
and a lot of it.”
Lisa also argued that Dr. King, the government’s expert,
provided impermissible legal conclusions in his testimony.
The judge rejected this contention, noting that Dr. King had
“offered nothing more than his expert opinion on the stand-
ard of care for medical professionals.”
Robert likewise moved for judgment of acquittal, chal-
lenging the sufficiency of the evidence to prove his guilt on
the charges against him. The judge denied his motion too,
noting that although Robert was not a medical professional,
the government had introduced ample evidence for the jury
to find beyond a reasonable doubt that he intentionally
conspired with Lisa to unlawfully distribute controlled
substances and aided and abetted the commission of the
four substantive distribution crimes. Among other data-

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8 Nos. 21-3403 & 21-3404
points from the trial, the judge emphasized Robert’s obvious
awareness that the clinic lacked any accoutrements of legit-
imate medical practice and the testimony from several
nurses that they had raised concerns with him about Lisa’s
unauthorized prescribing practices and the clinic’s lack of
legitimate medical care.
With the posttrial motions resolved, the judge turned to
sentencing. The “death resulting” count against Lisa carried
a 20-year minimum prison term; the judge imposed the
minimum 20-year term on that count and concurrent sen-
tences of varying lesser lengths on the conspiracy and
remaining drug-distribution convictions. Robert was sen-
tenced to concurrent terms of 36 months in prison on each of
his five convictions.
II. Discussion
On appeal the Hofschulzes raise several claims of
instructional and evidentiary error. They also challenge the
sufficiency of the evidence to support their convictions.
A. Jury Instructions
The defendants’ primary argument is that the jury in-
structions did not comply with the Supreme Court’s decision
in Ruan, which as we’ve noted was issued after they were
sentenced. We review the accuracy of the jury instructions
de novo. United States v. Bonin, 932 F.3d 523, 537–38 (7th Cir.
2019). The trial judge has substantial discretion to formulate
the language of the instructions as long as the instructions as
a whole “represent a complete and correct statement of the
law.” Id. at 538 (quotation marks omitted). If the instructions
correctly stated the law, then we review the judge’s phrasing
of them for abuse of discretion. Id.

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Nos. 21-3403 & 21-3404 9
Section 841(a) makes it unlawful to “knowingly or inten-
tionally … manufacture, distribute, or dispense … a con-
trolled substance” “[e]xcept as authorized” by the
Controlled Substances Act. In Ruan the Supreme Court held
that “§ 841’s ‘knowingly or intentionally’ mens rea applies to
the ‘except as authorized’ clause.” 597 U.S. at 457. Accord-
ingly, to convict a medical professional for violating § 841(a),
the government must “prove beyond a reasonable doubt
that the defendant knowingly or intentionally acted in an
unauthorized manner.” Id.
Ruan involved two consolidated cases from the Tenth
and Eleventh Circuits raising the same question about the
statute’s state-of-mind requirement as applied in cases
against registered medical prescribers. As noted above, the
Controlled Substances Act authorizes certain licensed and
registered medical professionals to prescribe controlled
substances to patients. See 21 U.S.C. §§ 822(a)(2), 829(a). The
prescribed drug must have “a currently accepted medical
use,” id. § 812(b), and the prescription must be “for a medical
purpose,” id. § 829(c). The Act defines a “valid prescription”
as one “issued for a legitimate medical purpose by an indi-
vidual practitioner,” id. § 830(b)(3)(A)(ii); the term “practi-
tioner” includes physicians and other licensed medical
professionals who are permitted by their licensing authori-
ties to dispense controlled substances “in the course of
professional practice,” id. § 802(21).
A regulation pulls these statutory requirements together:
A prescription for a controlled substance is “authorized”
under the Act when it is “issued for a legitimate medical
purpose by an individual practitioner acting in the usual
course of his professional practice.” 21 C.F.R. § 1306.04(a).

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10 Nos. 21-3403 & 21-3404
See also Gonzales v. Oregon, 546 U.S. 243, 257 (2006) (explain-
ing that this regulation “restate[s] the terms of the statute
itself”). We therefore assume, as Ruan did, “that a prescrip-
tion is ‘authorized’ and therefore lawful if it satisfies [the
§ 1306.04(a)] standard.” 597 U.S. at 455.
Here the district judge carefully crafted the relevant jury
instruction to apply the statutory state-of-mind standard to
the § 1306.04(a) requirements, as had been the practice in our
circuit even prior to Ruan. See, e.g., United States v. Kohli, 847
F.3d 483, 489–90 (7th Cir. 2017); United States v. Chube II, 538
F.3d 693, 697–98 (7th Cir. 2008). The instruction explained
that the government had the burden to prove beyond a
reasonable doubt that the defendants “knowingly caused [a
controlled substance] to be distributed or dispensed” and
that they “did so by intentionally distributing or dispensing
the controlled substance outside the usual course of profes-
sional medical practice, and not for legitimate medical
purpose.” (Emphases added.) This is an accurate statement
of the law and fully compliant with Ruan.
The Hofschulzes resist this conclusion, arguing that the
judge was required to instruct the jury that a prescriber’s
good-faith belief in the legitimacy of his actions negates
intent. Ruan does not suggest—much less mandate—that
judges give such an instruction. The jury instruction here
clearly explained that the government needed to prove
beyond a reasonable doubt that the defendants intentionally
distributed drugs outside the usual course of medical prac-
tice and not for a legitimate medical purpose. Ruan requires
nothing more. Indeed, the judge went further than necessary
by using the word “intentionally” alone—rather than the
statutory phrase “knowingly or intentionally”—with respect

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Nos. 21-3403 & 21-3404 11
to the authorization requirement. In that sense, the instruc-
tion was subtly more favorable to the defense than it needed
to be.
Taking a different tack, the Hofschulzes also suggest that
Ruan adopted a criminal willfulness standard, which if true
would require the government to prove that the prescriber
knew that his conduct was illegal. But nothing in Ruan even
hints at a criminal willfulness standard. The Court reasoned
by analogy to several cases in which it had interpreted other
criminal statutes to contain, at least implicitly, a “knowledge
of status” or “knowledge of nonauthorization” mens rea. Id.
at 461, 467. The Court did not mention a “knowledge-of-
law” requirement (i.e., knowledge that conduct was illegal).
The difference between the two standards “is so important
… that the Supreme Court would not have adopted the
broader [knowledge-of-law] reading without saying so with
unmistakable clarity.” United States v. Maez, 960 F.3d 949,
954–55 (7th Cir. 2020).
Our conclusion that the judge’s instructions complied
with Ruan aligns with a decision from the Third Circuit
involving a similar challenge to materially identical pre-
Ruan jury instructions. See United States v. Titus, 78 F.4th 595,
602 (3d Cir. 2023) (affirming a doctor’s conviction in a case
involving jury instructions that required the jury to find that
he “knowingly or intentionally distributed controlled sub-
stances outside ‘the usual course of professional practice and
not for a legitimate medical purpose’”). The Hofschulzes
draw our attention to decisions from the Tenth and Eleventh
Circuits on remand from the Supreme Court in Ruan. See
United States v. Kahn, 58 F.4th 1308 (10th Cir. 2023); United
States v. Ruan, 56 F.4th 1291 (11th Cir. 2023). But the pre-Ruan

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12 Nos. 21-3403 & 21-3404
jury instructions in those cases lacked the intent requirement
that was clearly included in the jury instructions here.
The Hofschulzes raise two additional claims of instruc-
tional error. First, they argue that the jury instruction on the
“death-resulting” count erroneously imposed strict liability.
Second, they claim that the judge was wrong to reject their
pretrial request for an instruction explaining the difference
between the civil-malpractice liability standard and the
standard for criminal liability under § 841.
The first argument was not preserved, so we review only
for plain error. United States v. McClellan, 794 F.3d 743, 753–54
(7th Cir. 2015). Before we will consider exercising our discre-
tion to correct a forfeited error, we must first find “(1) [an]
error (2) that is plain, and (3) that affects the defendant’s
substantial rights.” Id. at 754 (quotation marks omitted). An
error is “plain” only if it is clear or obvious under current
law. United States v. Olano, 507 U.S. 725, 734 (1993).
There was no error here, let alone a plain error. The in-
struction on the death-resulting distribution count did not
impose strict liability. We’ve already explained that the jury
instructions on the § 841 counts properly applied the “know-
ingly or intentionally” requirement to the act of distribution
and lack of authorization, as Ruan requires. The steeper
penalties in § 841(b) apply “if death or serious bodily injury
results from” the use of drugs involved in the underlying
§ 841(a) violation.
The judge’s “death resulting” jury instruction correctly
explained the law for this more serious variant of the of-
fense, including the correct causation standard. The instruc-
tion also properly explained that this more serious version of

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Nos. 21-3403 & 21-3404 13
the offense “is committed regardless of whether th[e] de-
fendant knew or should have known that death would
result.” That’s an accurate statement of the law for the
enhanced penalties in § 841(b). The death-resulting instruc-
tion thus imposed strict liability only insofar as the underly-
ing drug-distribution instructions imposed strict liability; in
other words, not at all.
The second argument was only partially preserved. The
Hofschulzes made a pretrial request for a jury instruction on
the difference between the civil-malpractice and criminal
liability standards. The judge denied it but left the door open
for them to renew the request at the end of trial if the evi-
dence so warranted. They did not do so.
Setting that misstep aside, the claim of error is meritless.
The Hofschulzes argue that the judge was required to in-
struct the jury on the difference between the criminal and
civil liability standards because Dr. King testified that the
two standards are identical. He did no such thing: as ex-
plained in more detail below, he did not offer an opinion
about liability standards, criminal or civil; rather, he ex-
plained the standard of care in the usual course of profes-
sional medical practice in this context. Accordingly, the
instruction was at best unnecessary and at worst potentially
confusing. The judge was well within her discretion to reject
it.
B. Expert Testimony
The Hofschulzes next argue that Dr. King, the govern-
ment’s medical expert, should not have been permitted to
offer opinion testimony about whether Lisa’s conduct was
outside the usual course of professional practice and not for

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14 Nos. 21-3403 & 21-3404
a legitimate medical purpose. This argument rests on a
misunderstanding of the rules for admission of expert
testimony.
Rule 704 of the Rules of Evidence expressly provides that
“[a]n opinion is not objectionable just because it embraces an
ultimate issue.” FED. R. EVID. 704(a). There is a qualifier: “In a
criminal case, an expert witness must not state an opinion
about whether the defendant did or did not have a mental
state or condition that constitutes an element of the crime
charged or of a defense.” Id. R. 704(b).
In United States v. Kohli we explained how Rule 704 ap-
plies in this specific context. 847 F.3d 483 (7th Cir. 2017).
Kohli involved a medical expert who, like Dr. King, provided
opinion testimony that the defendant’s prescribing practices
“were inconsistent with the usual course of professional
practice and lacked a legitimate medical purpose.” Id. at 491.
We explained that this testimony “falls squarely within the
parameters of Rule 704.” Id. We noted first that Rule 704(a)
explicitly permits experts to testify “about ultimate or dis-
positive issues in the case.” Id. And the expert in Kohli did
not violate the qualifier in Rule 704(b): he did not offer an
opinion about the defendant’s subjective mental state but
instead gave his opinion about the defendant’s prescribing
practices “in light of his own experience and training.” Id.
The same is true here. Dr. King’s testimony stayed well
within the bounds of Rule 704.
In a slightly different twist on the same argument, the
Hofschulzes insist that the judge wrongly permitted Dr.
King to testify about the medical standard of care in relation
to the “usual course of professional practice” and “legitimate
medical purposes.” Kohli forecloses this variant of the argu-

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Nos. 21-3403 & 21-3404 15
ment too. We explained there that expert testimony on the
medical standard of care is not tantamount to an impermis-
sible expert opinion on the governing legal standard “just
because the two standards overlap.” Id. at 492. “If that were
the case, physicians could virtually never offer meaningful
expert opinions in prosecutions under § 841(a).” Id.
In their final challenge to the government’s expert, the
Hofschulzes argue that Dr. King’s testimony was at odds
with the standard for guilt under § 841 and was wrong as a
matter of law, effectively usurping the judge’s prerogative to
instruct the jury on the law. This argument is way off the
mark. Like the expert in Kohli, Dr. King did not testify about
the legal standard but instead gave expert testimony about
the “applicable standard of care among medical profession-
als.” Id. Though the medical standard of care is “no doubt
closely linked to § 841(a)’s prohibition on prescribing outside
the ‘usual course of professional medical practice,’” id., Dr.
King’s testimony did not invade the judge’s province as the
sole explainer of the law.
C. Sufficiency of the Evidence
Finally, the Hofschulzes argue that the evidence was in-
sufficient to establish their guilt. Great deference is owed to
the jury’s verdict. United States v. Beechler, 68 F.4th 358, 368
(7th Cir. 2023). “We view the evidence in the light most
favorable to the government and will overturn a conviction
only if the record contains no evidence from which a reason-
able juror could have found the defendant guilty.” United
States v. Longstreet, 567 F.3d 911, 918 (7th Cir. 2009). This
highly demanding standard is rightly characterized as
imposing “a nearly insurmountable burden.” Beechler, 68
F.4th at 368 (quotation marks omitted).

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16 Nos. 21-3403 & 21-3404
The Hofschulzes have not come remotely close to satisfy-
ing this demanding standard. They continue to insist, as
they did in their posttrial motions, that the government
failed to prove that they knew their opioid prescriptions
were “unauthorized.” This argument is frivolous. As our
summary of the trial record shows, the government present-
ed plentiful evidence of their intent to prescribe opioids
outside the usual course of professional practice and not for
legitimate medical purposes. The Hofschulzes point to
evidence on the other side of the ledger—mostly their own
testimony claiming that they were operating a legitimate
pain clinic. But the jury was entitled to reject their testimony
and had ample basis to do so. In any event, we cannot
“supplant the jury’s credibility findings on appeal.” Kohli,
847 F.3d at 490. Abundant evidence supports the guilty
verdicts.
AFFIRMED

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