Case: 19-40435 Document: 00515489391 Page: 1 Date Filed: 07/14/2020
`
`IN THE UNITED STATES COURT OF APPEALS
`FOR THE FIFTH CIRCUIT
`
`
`No. 19-40435
`
`
`
`United States Court of Appeals
`Fifth Circuit
`
`FILED
`July 14, 2020
`
`Lyle W. Cayce
`Clerk
`
`UNITED STATES OF AMERICA,
`
` Plaintiff - Appellee
`
`v.
`
`CHIA JEAN LEE, also known as Chia Lee Taylor; THEODORE WILLIAM
`TAYLOR, also known as Tad Taylor,
`
` Defendants - Appellants
`
`
`
`
`
`Appeals from the United States District Court
`for the Eastern District of Texas
`
`
`
`Before DENNIS, ELROD, and COSTA, Circuit Judges.
`GREGG COSTA, Circuit Judge:
`The prosecution of a medical clinic outside Dallas offers a window into
`the prescription drug epidemic that is plaguing America. At trial, the parties
`told a tale of two clinics. The government described a pill mill that prescribed
`patients more than a million doses of abusable drugs in just two years. The
`defense described a pain management clinic that helped people who appeared
`to suffer from chronic pain. A jury agreed with the government’s account and
`found the clinic’s doctor and office manager guilty of conspiring to distribute
`controlled substances. We consider a number of challenges to the convictions
`and sentences.
`
`
`
`
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`No. 19-40435
`I.
`Theodore “Tad” Taylor and Chia Jean Lee, a married couple who met
`
`while earning their degrees at Yale, ran Taylor Texas Medicine in Richardson,
`Texas. Taylor was the clinic’s only doctor while Lee, a nurse by training, was
`the clinic’s office manager. An Eastern District of Texas grand jury indicted
`the couple for conspiring to distribute controlled substances. The indictment
`alleged that from 2010 through early 2012, Taylor and Lee conspired to
`illegally prescribe five controlled substances: oxycodone, amphetamine salts,
`hydrocodone, alprazolam, and promethazine with codeine.
`A jury convicted both of them after a seven-day trial. It also made
`findings about the quantity of drugs the couple distributed, but those
`quantities did not trigger higher statutory minimum or maximum sentences.
`See 21 U.S.C. § 841(b)(1)(C). The district court then sentenced Taylor to the
`20-year statutory maximum (his Guidelines range would have been higher but
`for the statutory cap) and Lee to just over 15 years (the bottom of her
`Guidelines range).
`Taylor and Lee challenge the sufficiency of the evidence, contend that
`they were convicted in an improper venue, and argue that three errors infected
`the trial: premature jury deliberation, unreliable expert testimony, and a
`deliberate ignorance instruction. They also appeal their sentences.
`II.
`We start with the defendants’ claim that there was not enough evidence
`to convict them. They moved for acquittal at the end of trial, so we review their
`sufficiency appeal de novo. See United States v. Ollison, 555 F.3d 152, 158 (5th
`Cir. 2009). That means we do not give deference to the district court’s ruling
`denying the motion. But, like the district judge, we give great deference to the
`jury’s factfinding role, viewing the evidence and drawing all inferences in favor
`of its verdict. United States v. Beacham, 774 F.3d 267, 272 (5th Cir. 2014).
`2
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`No. 19-40435
`Because Taylor was a doctor with prescribing authority, he and Lee could
`
`distribute controlled substances as long as they did so for a legitimate medical
`purpose and within the scope of professional practice. United States v. Norris,
`780 F.2d 1207, 1209 (5th Cir. 1986); see also 21 C.F.R. § 1306.04(a). Thus,
`when a conspirator has prescribing authority, the elements of conspiracy to
`distribute controlled substances are: “(1) an agreement by two or more persons
`to unlawfully distribute or dispense a controlled substance outside the scope of
`professional practice and without a legitimate medical purpose; (2) the
`defendant’s knowledge of the unlawful purpose of the agreement; and (3) the
`defendant’s willful participation in the agreement.” United States v. Oti, 872
`F.3d 678, 687 (5th Cir. 2017) (footnote omitted).
`
`Even by the standards of our adversarial system, the difference in the
`parties’ portrayals of the clinic is stark. The defendants’ story is that they ran
`Taylor Texas Medicine as a legitimate pain management operation. Taylor
`says that he carefully examined patients, refused to prescribe to patients who
`tested positive for illegal drugs, and attempted conservative treatments before
`resorting to others prone to abuse. He acknowledges that, in retrospect, he
`may have made some mistakes. But he contends he acted in good faith and
`trusted his patients to accurately report their pain. Lee, for her part, asserts
`that she knew nothing about the prescriptions Taylor wrote. According to her,
`she was an innocent office manager.
`
`The government tells the story of a “pill mill”—a medical practice that
`serves as a front for dealing prescription drugs. It portrays a clinic packed
`with drug users and dealers, where one person would often pay for multiple
`patients’ visits. Also consistent with patients’ trafficking drugs is that, on
`follow-up visits, many tested negative for the medication Taylor had prescribed
`them. Others tested positive for illegal drugs like cocaine. Despite the red
`flags, Taylor kept prescribing these patients drugs. Even when a patient’s wife
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`No. 19-40435
`begged Taylor to stop feeding her husband’s drug addiction, he kept prescribing
`the husband drugs. And when a pharmacist who filled many of Taylor’s
`prescriptions told him that some of his patients were also receiving scripts from
`other doctors, he kept prescribing them drugs too. The pharmacist was so
`troubled that she contacted the Drug Enforcement Administration for the first
`time in her career. The government contends that Lee was a key part of the
`scheme. It says she reviewed failed drug tests, knew some patients had
`substance abuse problems, and prewrote prescriptions for Taylor to sign. She
`was also in charge of the clinic’s finances, which improved dramatically as the
`clinic concentrated its practice on pain management.
`Because the jury found the defendants guilty, we must honor the
`government’s telling if it is backed by evidence. It is. The government called
`seventeen witnesses, including the pharmacist who reported Taylor to the
`DEA, the patient’s wife who asked Taylor to stop prescribing drugs to her
`husband, undercover officers who pretended to be patients, an actual patient,
`medical experts, clinic staff, and case agents. It also introduced documentary
`evidence like financial records, patient files, and prescription data. Taylor
`testified too. All this evidence was more than enough for the jury to convict on.
`What follows is just a sampling.
`Taylor is not a pain management specialist, yet the clinic shifted its focus
`to pain patients when he and Lee began having financial difficulties.
`Eventually 80% of the clinic’s patients were pain patients. The proportion of
`prescriptions Taylor wrote for the commonly abused drugs hydrocodone and
`alprazolam grew from about 50% of prescriptions in January 2010 to over 80%
`by August 2011. Almost all those prescriptions were for the maximum dosage.
`Cf. United States v. Moore, 423 U.S. 122, 143 (1975) (“[The defendant] did not
`regulate the dosage at all, prescribing as much and as frequently as the patient
`
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`No. 19-40435
`demanded.”). He seldom offered patients conservative treatments not prone to
`abuse.
`Taylor did little to justify the prescriptions. By 2011, he was seeing 40
`to 50 patients a day. The undercover visits confirmed the brevity of the
`examinations; Taylor spent between two-and-a-half and eleven minutes per
`visit with the pretend patients. Cf. Oti, 872 F.3d at 688 (describing pill mill
`where typical patient visits were between four and eight minutes long). One
`of the medical experts, Graves Owen, estimated that a pain doctor complying
`with the standard of care might spend 30 to 60 minutes with a new patient and
`between 10 and 15 minutes for an ordinary follow-up. Cf. id. at 687 (expert
`testified it would have been “impossible” for a doctor acting within the normal
`scope of professional practice to see 40 to 50 patients per day).
`What time Taylor spent with patients often involved only a cursory
`physical examination. A patient, the undercover officers, and the medical
`experts all testified that Taylor’s physicals were brief and that he rarely
`requested imaging to corroborate claims of pain. Sometimes Taylor would
`enter the examination room with a prefilled prescription form. Agents even
`found presigned (but otherwise blank) prescription forms when they searched
`the clinic. For some patients, Taylor wrote prescriptions without any
`examination at all; they could just stop by the clinic and pick them up. Cf.
`Moore, 423 U.S. at 142–43; United States v. Evans, 892 F.3d 692, 703–07 (5th
`Cir. 2018); Oti, 872 F.3d at 688 (all recognizing similar patterns indicative of a
`pill mill).
`For at least some of these prescriptions, Taylor had direct knowledge
`that the patients exhibited obvious drug-seeking behavior. Recall that a
`pharmacist told Taylor he was prescribing drugs to patients who were getting
`the same drugs from other doctors. And a patient’s wife called and emailed
`Taylor asking him not to prescribe to her husband because he had substance
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`No. 19-40435
`abuse problems and was getting prescriptions from other doctors. He ignored
`their concerns. The undercover operation again corroborated what was
`happening with clinic patients: Taylor prescribed drugs when the undercovers
`indicated their pain was fake. One testified that Taylor “coach[ed]” him to
`come up with an injury to “legitimize” a prescription.
`The defendants’ responses to patient drug tests are also telling. A
`positive test for an illegal drug, such as cocaine, is a warning sign in flashing
`neon. Less apparent but no less damning is a negative test for a prescribed
`drug: it is a red flag that the so-called patient is selling medications rather
`than using them. Yet when many of Taylor’s patients “failed” drug tests—
`either testing positive for illegal drugs or testing negative for the drugs Taylor
`had prescribed them—he continued to sign off on scripts. Cf. Moore, 423 U.S.
`at 143 (recognizing this practice as incriminating evidence in a pill mill case).
`More than that, the clinic’s irregular pricing structure nakedly compensated
`Taylor and Lee for assuming the risk of prescribing to these patients with
`troubling drug tests. It charged a premium to patients who tested positive for
`illegal substances and gave a discount to patients who tested positive for the
`drugs they had been prescribed.
`As the clinic built up its pain management practice, monthly revenues
`rose fivefold, from just over $20,000 in early 2010 to more than $100,000 by
`mid-2011. Most of the clinic’s receipts were in cash. Pain patients could not
`use insurance for their first visit, and they could never use Medicaid. Cf. Oti,
`872 F.3d at 684–85 (describing pill mill that accepted only cash, not insurance,
`Medicaid, or Medicare). Still, patients traveled from all over the Dallas–Fort
`Worth metroplex to see Taylor. Many patients seemed to know each other, and
`one man would sometimes pay for several patients’ prescriptions.
`To make matters worse for Taylor, the jury could have also concluded
`that he lied to try and hide his guilt. Taylor told DEA agents that he
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`No. 19-40435
`discharged patients who tested positive for illegal drugs (with the exception of
`marijuana). As we have discussed, the evidence told a much different story.
`Then, when he took the stand, Taylor repeatedly claimed he could not
`remember key facts such as whether he continued to prescribe to the patients
`who were receiving pain medication from other doctors. Patient records show
`that he did. These statements that the jury could view as coverups are yet
`more evidence that Taylor knew what he was doing was wrong.
`Lee fares little better in contesting her guilt. She knew some of the
`clinic’s patients failed drug tests but facilitated their prescriptions anyway: she
`sometimes administered drug tests; she saw that one of the undercover’s drug
`tests came back negative for a drug Taylor had prescribed him; she agreed to
`let an undercover avoid taking a drug test; and she charged prices that
`depended on drug test results. The jury could have also determined that Lee,
`a nurse, knew Taylor saw more patients than he could treat under the proper
`standard of care. Nevertheless, she continued to help Taylor run the clinic.
`When the woman who asked Taylor to stop prescribing to her husband
`emailed, Taylor made sure to copy Lee on the exchange. As the clinic’s business
`took off, the couple discussed patient volume and pricing. Lee even kept a
`prescription pad in her office area and sometimes prewrote prescriptions for
`Taylor to sign. So despite her claim that she just the office manager, the jury
`could have concluded that she was in on the scheme.
`All this evidence—and remember, there is more—is easily enough to
`support the jury’s verdicts.
`
`III.
`But even the guiltiest of defendants cannot be convicted in a venue where
`
`their crime did not occur. U.S. CONST. art. III, § 2; id. amend. VI. The
`defendants contend that is what happened here. Although the trial took place
`in the Eastern District of Texas (where the defendants lived), the clinic was
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`No. 19-40435
`located in the nearby Northern District. As the defendants emphasize, venue
`has posed a problem for Eastern District drug prosecutions. We recently
`vacated a conviction because there was no venue in the Eastern District. See
`United States v. Niamatali, 712 F. App’x 417 (5th Cir. 2018) (per curiam). In
`another case, this author raised concerns about prosecuting an Indianapolis
`drug ring in east Texas merely because a conspirator drove drug proceeds
`through the district. See United States v. Romans, 823 F.3d 299, 324–26 (5th
`Cir. 2016) (Costa, J., specially concurring).
`
`Yet even though the government prosecuted the Romans defendants
`hundreds of miles away from where their conspiracy was headquartered,
`venue was proper. That is because of how broad the venue rule is when it
`comes to conspiracy cases: “[V]enue is proper in any district where the
`agreement was formed or an overt act occurred.”1 Id. at 310 (majority opinion)
`(citation omitted); accord Hyde v. United States, 225 U.S. 347 (1912); see also
`18 U.S.C. § 3237(a) (providing that, for offenses “committed in more than one
`district,” venue is proper “in any district in which such offense was begun,
`continued, or completed”). “An overt act is an act performed to effect the object
`of a conspiracy.” United States v. Kiekow, 872 F.3d 236, 243 (5th Cir. 2017). It
`does not need to be a criminal act, but “it must be done in furtherance of the
`object of the conspiracy.” Romans, 823 F.3d at 310 (citation omitted).
`
`
`There is one other feature of our venue review that makes the
`defendants’ burden a difficult one. Venue is a fact question the jury answers.
`So similar to our review of the guilty verdicts, we must uphold the jury’s venue
`finding as long as any rational jury could have concluded that an overt act
`occurred in the Eastern District. Kiekow, 872 F.3d at 243. The one difference
`
`
`1 This rule applies even for conspiracies like this one that do not require an overt act
`as an element of the offense. Romans, 823 F.3d at 324 n.1 (Costa, J., specially concurring)
`(citing Whitfield v. United States, 543 U.S. 209, 218 (2005)).
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`No. 19-40435
`between the jury’s findings on guilt and venue makes our review even more
`forgiving to the venue determination: the government’s burden on venue is
`only a preponderance of the evidence. United States v. White, 611 F.2d 531,
`534–35 (5th Cir. 1980).2
`The jury could have found two types of overt acts in the Eastern District.
`First, a rational jury could have concluded that the couple conducted clinic
`business at their home in the Eastern District. A DEA search of Taylor and
`Lee’s home in Plano uncovered clinic bookkeeping records dated November 11,
`2011, on a CD labeled “Work Files.” Also in the home were bank records and
`tax documents addressed to Taylor Texas Medicine. Taylor quibbles with this
`evidence, arguing it was not enough to show that the couple worked at home
`or that the work related to pain patients. But while the evidence may not have
`compelled a finding that the couple did clinic business at their Eastern District
`home, it certainly allowed such a finding. Bookkeeping and tax work for the
`clinic furthered the couple’s scheme by keeping the pill mill up and running.
`See Castillo v. Scott, 51 F.3d 1042, 1995 WL 152993, at *2 (5th Cir. 1995) (per
`curiam) (unpublished) (describing “accounting for the drug transactions” as an
`“overt act”).3
`
`Second, Taylor and Lee regularly wrote checks from a bank located in
`the Eastern District to fund clinic operations. The checks paid clinic staff, a
`medical billing company, and the clinic’s rent. Those payments perpetuated
`the scheme just as bookkeeping and doing taxes for the clinic did.
`
`
`2 This unusual burden of proof for a jury question in a criminal case is rooted in venue
`not being an element of the offense or an issue that goes to guilt. Annotation, Necessity of
`Proving Venue or Territorial Jurisdiction of Criminal Offense Beyond Reasonable Doubt, 67
`A.L.R.3d 988, § 2[a] (1975). Yet some state courts require the government to prove state
`venue requirements beyond a reasonable doubt. Id. § 6 (citing, e.g., McMullen v. State, 794
`S.E.2d 118, 120 (Ga. 2016); State v. Skipper, 387 So. 2d 592, 594 (La. 1980)).
`3 Unpublished decisions issued before 1996 are binding precedent. 5TH CIR. R. 47.5.3.
`9
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`No. 19-40435
`In addition to its compliance with the broad, modern interpretation of
`the venue requirement, this prosecution does not implicate the original
`vicinage right concern that a defendant might be “dragged to a trial . . . away
`from his friends, witnesses, and neighbourhood” and “subjected to the verdict
`of mere strangers.” 3 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF
`THE UNITED STATES § 1775 (1833); see also Romans, 823 F.3d at 325 (Costa, J.,
`specially concurring) (discussing the Founders’ desire for a jury to decide local
`cases). Instead, it is like others we have seen in which criminal conduct takes
`place in the area north of Dallas that straddles the Northern and Eastern
`Districts. See United States v. Brown, 898 F.3d 636, 638 (5th Cir. 2018).
`Although the pill mill was in the Northern District, the defendants lived in the
`Eastern District and, as we have noted, helped run the business out of that
`district. The U.S. Attorney for the Eastern District had an understandable
`interest in squelching a pill mill that district residents operated and
`patronized.
`
`
`
`IV.
`Taylor and Lee next allege several problems with the trial.
`A.
`The first one is an allegation of premature jury deliberation. Premature
`deliberations threaten a defendant’s Sixth Amendment right to trial by an
`impartial jury. United States v. York, 600 F.3d 347, 356 (5th Cir. 2010). We
`nevertheless presume a jury was impartial unless the defendant proves
`otherwise. Id. at 358. And because the district court is best positioned to
`assess jury misconduct, we review its denial of a motion on that ground for
`abuse of discretion. Id. at 355. Its “discretion is broadest when the allegation
`involves internal misconduct such as premature deliberations” as opposed to
`“external misconduct such as exposure to media publicity.” Id. at 356.
`
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`No. 19-40435
`As is customary, the district court instructed the jurors at the beginning
`of the trial not to “discuss the case, even with other jurors, until all the jurors
`are in the jury room actually deliberating at the end of the case.” See FIFTH
`CIRCUIT PATTERN JURY INSTRUCTIONS (CRIMINAL CASES) § 1.01 (2019). It also
`admonished them to “not form any opinion” and to “keep a[n] open mind” until
`starting deliberations. It even followed the trend of instructing the jury on the
`offense’s elements before the trial started, which can help orient jurors to the
`issues and frame the evidence they will soon hear.4
`Despite those efforts, on the third day of trial the jury submitted a note
`to the court: “We are not clear on exactly what the charges are. Can we get
`specific clarification, or is that something we hear once all the testimony is
`complete[?] Are they together only, or separately charged[?]” The court
`decided to interview each juror individually to see if the jury had begun talking
`about the case. It asked a series of questions including, “Have you discussed
`the merits of the case or reached any decision[?]” All but one juror answered
`in the negative. Juror 10 acknowledged reaching a decision but denied
`discussing it with anyone. In addition, several jurors reported that a court
`security officer said they could discuss the case only if they were all together
`in the jury room. Others maintained that the security officer had just told
`them not to discuss the case until deliberations.
`The defendants asked for a mistrial, arguing that the note showed the
`jury had begun to discuss the case and that the security officer had seemingly
`told the jurors that was okay. The district court denied their motions. It noted
`that all the jurors stated that they had not discussed the merits of the case
`
`4 See, e.g., G. THOMAS MUNSTERMAN ET AL., JURY TRIAL INNOVATIONS § 5.9, at 132–
`33 (2d ed. 2006); JURY INNOVATIONS PROJECT: AN EFFORT TO ENHANCE JURY TRIALS IN TEXAS
`STATE AND FEDERAL COURTS 15, 80–86, https://www.txs.uscourts.gov/sites/txs/files/
`2011_Jury%20Innovations%20Project%20-%20An%20Effort%20to%20Enhance%20Jury%
`20Trials%20in%20Texas%20State%20and%20Federal%20Courts.pdf.
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`No. 19-40435
`with anyone. The court nevertheless excused Juror 10 for reaching a decision
`before the close of evidence. It then reminded the jurors not to discuss the case
`and to keep an open mind throughout trial.
`The district court did not abuse its broad discretion. Most significantly,
`all the jurors said they had not talked about the merits. The chatter among
`the jury was concerned only with clarifying what the charges were.
`Furthermore, there is a strong presumption that a jury will follow a court’s
`“wait to deliberate” instruction. York, 600 F.3d at 358; United States v. Patino-
`Prado, 533 F.3d 304, 313 (5th Cir. 2008). A security officer’s remark to some
`jurors that they could discuss the case in the jury room—a remark that does
`not directly contradict the court’s instruction to avoid deliberating until the
`close of evidence—does not overcome that presumption, especially when the
`jurors denied doing any such thing. See York, 600 F.3d at 355–58. Indeed, we
`have deferred to district courts in this area even when, unlike in this case,
`there was some evidence indicating that the jury discussed the evidence during
`the trial. See United States v. Arriola, 49 F.3d 727, 1995 WL 103275, at *5 (5th
`Cir. 1995) (per curiam) (unpublished) (rejecting premature deliberation appeal
`when an affidavit from a juror’s son averred that “jurors were discussing the
`testimony and weight of the evidence”).5
`The defendants have not offered any evidence to get past the
`presumption of jury impartiality.
`
`B.
`Next up is the expert issue. Taylor and Lee attack the reliability of the
`
`government’s two experts for offering opinions about the clinic’s entire practice
`based on their examination of a small fraction of patient files. See FED. R.
`
`
`5 To reiterate our court’s peculiar rule, this pre-1996 “unpublished” decision is binding
`authority. 5TH CIR. R. 47.5.3.
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`No. 19-40435
`EVID. 702. Even though DEA agents seized over 1100 patient files from the
`clinic, Owen reviewed only 22, and the other expert, Timothy Munzing,
`reviewed just 7. Taylor and Lee argue that these samples were not
`representative.
`We review the district court’s decision to allow the testimony for abuse
`of discretion. United States v. Kuhrt, 788 F.3d 403, 418 (5th Cir. 2015). We
`can overturn the ruling only if it was “manifestly erroneous.” Id. (citation
`omitted). Even then, as is true for other evidentiary issues, the government
`can salvage the convictions by proving any error was harmless. Id.
`That is the case here, so we need not decide the merits of the challenge.
`To begin, the defendants’ claim goes to very little of the witnesses’ testimony.
`Most of the experts’ statements were limited to conclusions about the patient
`files they reviewed. The government usually couched its examination in terms
`of the files the expert looked at. The prosecutor asked questions like, “Was Dr.
`Taylor engaged in the legitimate professional practice of medicine when
`treating the patients that you reviewed?” Only a handful of times did an
`expert’s testimony arguably go beyond the files he reviewed to opining
`generally about whether he thought Taylor’s practice was illegitimate.
`That limited testimony was cumulative of mounds of other evidence
`pointing to the same conclusion. Take, for instance, the testimony and videos
`from undercover agents showing that Taylor performed cursory examinations;
`records showing a correlation between patient volume, clinic revenue, and
`Taylor’s prescribing of commonly abused drugs; and testimony from clinic staff,
`patients, and a pharmacist showing that Taylor prescribed drugs to patients
`with drug-seeking behavior. In light of overwhelming evidence that the
`defendants ran a pill mill, it is hard to believe the trial’s outcome was affected
`by a few instances of an expert stating that Taylor was a “drug dealer” or that
`Taylor operated outside the scope of professional practice “in 2010 and 2011.”
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`No. 19-40435
`Cf. Evans, 892 F.3d at 715 (finding lay opinion testimony that the defendant
`ran a pill mill was harmless because other evidence would lead to the same
`conclusion).
`Indeed, the defendants’ argument for why this testimony was harmful
`focuses not so much on its impact on the guilty verdicts but on the jury’s drug
`quantity determination. But that finding had no binding effect because the
`defendants’ statutory punishment range was zero to twenty years regardless
`of quantity. See 21 U.S.C. § 841(b)(1)(C) (enhancing the statutory sentencing
`range for cases involving Schedule II drugs only when the defendant has a
`prior felony drug conviction or when death or serious bodily injury results from
`the drug use). To convict Taylor and Lee, the government had to show only
`that the couple conspired to distribute some controlled substances outside the
`scope of professional practice. See Evans, 892 F.3d at 707 (explaining that a
`doctor’s abiding by the standard of care for some patients was “irrelevant” to
`the charged conduct of unlawfully distributing controlled substances to three
`other patients).
`Finally, the defense took full advantage of the “traditional and
`appropriate means of attacking shaky but admissible evidence,” Daubert v.
`Merrell Dow Pharm., Inc., 509 U.S. 579, 596 (1993), by pointing out that the
`experts’ testimony was based on a nonrandom sample of the clinic’s patient
`files. Taylor’s counsel crossed Owen on whether he knew how the government
`selected the files he reviewed; he said he did not. Another of Taylor’ lawyers
`questioned a DEA agent on the same topic, and she admitted that the
`government “got to pick” the files the experts reviewed. These attacks featured
`in Taylor’s closing argument. The jury heard the defendants’ impeachment
`evidence and voted to convict anyway.
`
`Any error the district court committed by admitting the experts’
`testimony was harmless.
`
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`No. 19-40435
`C.
`Taylor and Lee’s last claim of trial error is that the district court should
`not have instructed the jury on deliberate ignorance. This issue gives us déjà
`vu all over again. See Yogi Berra’s Most Memorable Sayings, MLB.COM (Sept.
`23,
`2015), https://www.mlb.com/news/yogisms-yogi-berras-best-sayings/c-
`151217962. The instruction “should rarely be given,” United States v. Araiza-
`Jacobo, 917 F.3d 360, 366 (5th Cir. 2019) (citation omitted), but what seems
`rare is a health care prosecution without the instruction.
`The deliberate ignorance instruction—also called the willful blindness,
`conscious avoidance, or ostrich instruction—“inform[s] the jury that it may
`consider evidence of the defendant’s charade of ignorance as circumstantial
`proof of guilty knowledge.” United States v. Ricard, 922 F.3d 639, 655 (5th Cir.
`2019) (citation omitted). It ensures that a defendant cannot bury his head in
`the sand to avoid liability. Id.
`Equating deliberate ignorance with knowledge dates back to nineteenth-
`century English common law. Ira P. Robbins, The Ostrich Instruction:
`Deliberate Ignorance as a Criminal Mens Rea, 81 J. CRIM. L. & CRIMINOLOGY
`191, 196 (1990) (citing Regina v. Sleep, 169 Eng. Rep. 1296 (Cr. Cas. Res.
`1861)).6 The Supreme Court first approved the concept at the end of that
`century. Id. at 197–98 (citing Spurr v. United States, 174 U.S. 728 (1899)).
`But many attribute the modern rise of deliberate ignorance instructions to the
`Model Penal Code’s defining knowledge to include a situation in which “a
`
`
`6 Another scholar agrees that Sleep was likely “the first criminal case involving wilful
`ignorance.” Robin Charlow, Wilful Ignorance and Criminal Culpability, 70 TEXAS L. REV.
`1351, 1409 (1992). Professor Charlow also highlights the importance of three English
`prosecutions of innkeepers for “suffering” gambling on their premises in violation of the
`Intoxicating Liquors (Licensing) Act of 1872. See id. at 1361–62. These decisions used the
`term “connivance,” which would soon be used interchangeably with “wilful blindness.” Id. at
`1361 (citing J. Ll. J. Edwards, The Criminal Degrees of Knowledge, 17 MOD. L. REV. 294, 301
`(1954)).
`15
`
`

`

` Case: 19-40435 Document: 00515489391 Page: 16 Date Filed: 07/14/2020
`
`No. 19-40435
`person is aware of a high probability of [a fact’s] existence, unless he actually
`believes that it does not exist.” United States v. Alston-Graves, 435 F.3d 331,
`339 (D.C. Cir. 2006) (quoting MODEL PENAL CODE § 2.02(7)); see also Robbins,
`supra, at 200–01 (citing Leary v. United States, 395 U.S. 6 (1969),7 and Turner
`v. United States, 396 U.S. 398 (1970), as drug prosecutions in which the
`Supreme Court relied on the Model Penal Code’s definition).
`The increasing use of ostrich instructions has prompted fears that “the
`jury might convict for negligence or stupidity.” Ricard, 922 F.3d at 655
`(citation omitted). We are not alone in our concern with their overuse. Similar
`to our admonitions, other courts use the words “rarely,” “sparingly,” and
`“caution” when discussing the instruction. Alston-Graves, 435 F.3d at 340–41
`(quoting cases from the First, Fourth, Fifth, Ninth, Tenth, and Eleventh
`Cir