PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. SHAKEEL KAHN, Defendant - Appellant. No. 19-8054

________________ _________________ Appeal from the United States District Court for the District of Wyoming (D.C. No. 2:17-C R-00029-ABJ-1)

________________ _________________ Submitted on the briefs: * Beau B. Brindley and Blair T. West over, Chicago, Illinois, for Appellant. Nicholas Vassallo, Acting Unite d States Attorney, Stepha nie I. Sprecher, Assistant United States Attorney, and David A. Kubich ek, Assistant United St ates Attorney, Office of the United States Attorney for the District of Wyom ing, Casper, Wyoming, for Appellee.

________________ _________________ Before MATHESON , BRISCOE , and CARSON , Circuit Judges.

________________ _________________ BRISCOE , Circuit Judge.

* After examining the briefs and appella te record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. FILED United States Court of Appeals Tenth Circuit 

### February 3, 2023 Christopher M. Wolpert Clerk of Court Appellate Case: 19-8054 Document: 010110807970 Date Filed: 02/03/2023 Page: 12 ________________ _________________ This case comes before the court on re mand from the United States Supreme Court. Doctor Shakeel Kahn (Dr. Kahn) was co nvicted in the United States District Court for the District of Wyoming, in part, fo r dispensing controlled substances not “as authorized,” in violation of the Controlled Substances Act (the CS A), 21 U.S.C. § 841(a). Included in his appeal to this court was his c ontention that the jury in structions issued by the district court improperly advised the ju ry regarding the mens rea requirement of § 841(a). We affirmed Dr. Kahn’s convictions , rejecting not only his challenge to the instructions given, but also his challenges to multiple searches and th e evidence seized. In upholding the instructions, we relied on our prior precedent, United States v. Nelson , 383 F.3d 1227 (10th Cir. 2004), and further reaffirmed its holding , which was guided by 21 C.F.R. § 1306.04(a). Dr. Kahn appealed to the Supreme Court, raising only his inst ructional challenge. The Supreme Court held that § 841(a)’s “kno wingly or intentionally” mens rea applies to the “except as authorized” clau se of the statute, vacated our judgment, and remanded the case for further proceedings consistent with its opinion. Ruan v. United States , 142 S. Ct. 2370 (2022). 1 The parties have submitted supplemen tal briefing, and the matter is now ripe for decision.

1 The Supreme Court consolidated Dr. Kahn’s appeal with that of Xiulu Ruan. Ruan , 142 S. Ct. at 2375 (“In each of thes e two consolidated cases, a doctor was convicted under § 841 for di spensing controlled substances not ‘as authorized.’”). Appellate Case: 19-8054 Document: 010110807970 Date Filed: 02/03/2023 Page: 23 Exercising jurisdiction under 28 U.S.C. § 1291, we conclude that the jury instructions issued in Dr. Ka hn’s trial incorrectly stated the mens rea requirement of § 841(a) and, further, that such error was not harmless beyond a reasonable doubt. This prejudicial error infected all of Dr. Ka hn’s convictions. Theref ore, we VACATE Dr. Kahn’s convictions on all c ounts and REMAND for new trial.
I. F ACTS

A. Background In 2008, Dr. Kahn, a medical doctor, opened a practice in Fort Mohave, Arizona. Later that year, his brother Nabeel, who is not a medical doctor, arrived in Arizona and began assisting Dr. Kahn in managing hi s practice. Thereafter, Dr. Kahn’s practice shifted towards pain management. Beginnin g in late 2012, pharmacies in the Fort Mohave area began refusing to fill prescripti ons issued by Dr. Kahn . In 2015, Dr. Kahn opened a second practice in Casper, Wyoming. During that time, Dr. Kahn continued to travel to Arizona to see patients; other patie nts travelled to Wyoming to see Dr. Kahn. Dr. Kahn’s wife, Lyn, began acting as office manager for Dr. Kahn’s Wyoming practice. By 2016, the government was investig ating Dr. Kahn’s prescribing practices. After law enforcement executed a search warrant on Dr. Kahn’s Arizona residence, the government indicted him on the following charges:

 Conspiracy to Dispense and Di stribute Oxycodone, Alprazolam, Hydromorphone, and Cari soprodol Resulting in De ath, in violation of 21 U.S.C. §§ 846, 841(a)(1), (b)(1 )(C), and (b)(2) (Count One);

 Possession of Firearms in Furtherance of a Federal Drug Trafficking Crime, in violation of 18 U.S.C. § 924(c)(1) (Count Two); Appellate Case: 19-8054 Document: 010110807970 Date Filed: 02/03/2023 Page: 34  Dispensing of Oxycodone, in viola tion of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) (Counts Four, Six, Seve n, Sixteen, and Twenty);

 Possession with Intent to Distribut e Oxycodone and Aid and Abet, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1 )(C) and 18 U.S.C. § 2 (Counts Five, Nine, and Ten);

 Unlawful Use of a Communication Fa cility, in violation of 21 U.S.C. § 843(b) (Counts Eight, Twelve, Thirteen, Seventeen, and Eighteen);

 Dispensing of Oxycodone and Aid and Abet, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C ) and 18 U.S.C. § 2 (Co unts Eleven, Fourteen, and Nineteen);

 Continuing Criminal Enterprise, in vi olation of 21 U.S.C. § 848(a), (b) and (c) (Count Twenty One);

 Engaging in Monetary Transactions Derived from Specified Unlawful Activity, in violation of 18 U.S.C. § 1957 (Counts Twenty Two and Twenty Three); Aplt. App., Vol. I at 45.
B. Trial and Jury Instructions Lyn pleaded guilty to the co nspiracy charge against her. Dr. Kahn and Nabeel, however, moved to suppress evidence seized in the searches of Dr. Kahn’s homes and businesses. The district court denied the mo tion (except that it suppressed the seizure of any automobiles), and the cas e proceeded to trial. After the close of evidence, the district c ourt gave the following instructions to the jury pertaining to the 21 U.S.C. §§ 841(a)(1 ) and (b)(1)(C) charges in Counts Four, Six, Seven, Eleven, Fourteen, Sixt een, Nineteen, and Twenty:
JURY INSTRUCTION NO. 36 . . . [The government] charge[s] various instances of knowingly and unlawfully dispensing and/or distributin g Oxycodone while acting and intending to act outside the usual course of professional practice and without a legitimate medical purpose, in violation of 21 U.S.C. Section 841(a)(1 ) . . . . In pertinent part, Section 841(a) states it is “unlawful for any person knowingly Appellate Case: 19-8054 Document: 010110807970 Date Filed: 02/03/2023 Page: 45 or intentionally to . . . distribute or dispense . . . a controlled substance,” unless a specific exception authorizes it. JURY INSTRUCTION NO. 37 . . . . To prove Defendant Shakeel Kahn is guilty of one or more of these Counts, the Government must prove beyond a reasonable doubt each of the following elements: . . . (3) Defendant Shakeel Kahn knowingly or intentionally di stributed or dispensed the controlled substance outside the usual course of professional medical practice or without a legitimate medical purpose. JURY INSTRUCTION NO. 39 . . . The good faith of Defendant Shakeel A. Kahn is a complete defense to the charges in Count One (conspiracy to commit a federal drug crime) as well as the charges in Counts Four, Six, Seven, Eleven, Fourteen, Sixteen, Nine teen, and Twenty (knowingly and unlawfully dispensing an d/or distributing Oxycodone outside the usual course of pr ofessional practice and without a legitimate medical purpose), becaus e good faith on the part of Defendant Shakeel Kahn woul d be inconsistent with knowingly and intentionally di stributing and/or dispensing controlled substances outside th e usual course of professional practice and without a legitimate medical purpose, which is an essential part of the charges. “Good faith” connotes an attempt to act in accordance with what a reasonable physician should believe to be proper medical practice . . . . The good faith defense requires the jury to determine whether Defendant Shakeel Kahn acted in an honest effort to prescribe for patients’ medical conditions in accordance with generally recognized and accepted standards of practice. Aplt. App., Vol. I at 236–37, 239. 2 Dr. Kahn and Nabeel objected to the district court’s ju ry instructions regarding their potential criminal liability under § 841 (a)(1), their respective “good faith” defenses,

2 We discuss the jury instru ctions regarding the remain ing counts in Section II.D, infra

. Appellate Case: 19-8054 Document: 010110807970 Date Filed: 02/03/2023 Page: 56 and the intent requirement under the CSA. The district court overruled these objections. The jury returned a verdict of guilty on all counts, except that it acquitted Nabeel of causing the death of one of Dr. Kahn’s patients.
C. Appeals Dr. Kahn and Nabeel appealed their c onvictions on multiple grounds, including the jury instructions, and this court affirmed the convictions. See United States v. Kahn , 989 F.3d 8 06 (10th Cir.), cert. granted sub nom. Kahn v. United States , and vacated and remanded sub nom. Ruan , 142 S. Ct. 2370. Dr. Kahn th en appealed to the Supreme Court, challenging the jury instructions as they relate to his CSA convictions. Specifically, Dr. Kahn argued that the jury inst ructions did not properly instruct the jury regarding the mens rea requirements of the CS A for distributing controlled substances not “as authorized.” See 21 U.S.C. § 841(a). The Supreme Court determined that this court applie d an incorrect scienter standard, and it vacated our earlier judgment. Ruan , 142 S. Ct. at 2382. The Supreme Court instructed us to addre ss on remand whether the jury inst ructions that were given at Dr. Kahn’s trial complied with the mens rea standard set forth in Ruan , as well as whether any instructional error was harmless. Id.
II. D ISCUSSION In order to determine whet her the instructions provide d to the jury during Dr. Kahn’s trial complied with the mens rea standard set forth in Ruan , as well as whether any instructional error was harmless beyond a reasonable doubt, we first discuss the CSA Appellate Case: 19-8054 Document: 010110807970 Date Filed: 02/03/2023 Page: 67 and the Ruan decision. Then, applyi ng the scienter requirement discussed in Ruan to the jury instructions at issue, we conclude that (1) the district court did not properly instruct the jury as to the mens r ea that the government was required to prove beyond a reasonable doubt to convict Dr. Kahn, and (2) such error was not harmless.
A. The CSA and Ruan Dr. Kahn was convicted by a jury for violating the following provision of the
CSA: (a) Unlawful acts Except as authorized by this subchapter , it shall be unlawful for any person knowingly or intentionally— (1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance; or (2) to create, distribute, or dispense, or possess with intent to distribute or disp ense, a counterfeit substance. 21 U.S.C. § 841(a) (emphasi s added). A federal regulation provides that, to be “authorized,” “[a] prescription for a contro lled substance . . . must be 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.
In Ruan , the issue before the Supreme Court “concern[ed] the state of mind that the Government must prove to convict [a defendant] of viol ating [§ 841(a)].” Ruan , 142 S. Ct. at 2375. In resolving this issue, the Supreme Court “h[e]ld that [§ 841(a)]’s ‘knowingly or intentionally’ mens rea applies to authorization.” Id. Thus, “once a Appellate Case: 19-8054 Document: 010110807970 Date Filed: 02/03/2023 Page: 78 defendant meets the burden of producing evidence that his or her conduct was ‘authorized,’ the Government must prove bey ond a reasonable doubt that the defendant knowingly or intentionally acte d in an unauthorized manner.” Id. at 2376. The Supreme Court rejected the governme nt’s argument that, “once a defendant meets his or her burden of production, the Government can convict by proving beyond a reasonable doubt that [the defendant] did not even make an objectively reasonable attempt to ascertain and act within th e bounds of professional medicine.” Id. at 2381 (internal quotation marks a nd citation omitted). The Court emphasized that § 841(a) does not contain a “good faith,” “objective,” “rea sonable,” or “honest effort” standard, and courts cannot read such a st andard into the statute. Id. The government must prove that a “defendant knew or intended that his or he r conduct was unauthorized”—it cannot rely on comparison to the good faith efforts or mental state of “a hypothetical ‘reasonable’ doctor.” Id. at 2381–82. Further, the Supreme Court ruled that, to es tablish mens rea, it is insufficient for the government to prove that a defendant ac ted without “a legitimate medical purpose” or outside the “usual course” of genera lly recognized “professional practice.” Ruan , 142 S. Ct. at 2382; see 21 C.F.R. § 1306.04. Proof that a de fendant did so is “circumstantial evidence” that may be used to prove knowledge of a lack of authorization. Ruan , 142 S. Ct. at 2382. Certainly, “the more unreas onable a defendant’s asserted beliefs or misunderstandings are, especially as measured against objective criteria, the more likely the jury . . . will find that the Government has carried its burden of proving knowledge.” Appellate Case: 19-8054 Document: 010110807970 Date Filed: 02/03/2023 Page: 89 Id. (internal quotation marks an d citation omitted). But, in or der to convict a defendant, the government must prove that the defendan t “knew or intended that his or her conduct was unauthorized.” Id. ; see also United States v. Fabode , No. 21-1491, 2022 WL 16825408, at *6 (6th Cir. Nov. 8, 2022) (“ The Supreme Court reiterated, however, that circumstantial evidence and objective criteri a such as ‘legitimate medical purpose’ and ‘usual course’ of ‘professional practice’ ar e often probative indicia of a defendant’s subjective knowledge and intent.” (inter nal quotation marks and citation omitted)). To illustrate its holding, the Supreme Court discussed Liparota v. United States , 471 U.S. 419 (1985), which concerned the mens rea required to convict a person for the unauthorized use of food stamps: Analogous preceden t reinforces our conclusion. In Liparota , we interpreted a statute pena lizing anyone who “‘knowingly uses [food stamps] in any manner not authorized by’” statute. We held that “knowingly” modi fied both the “use” of food stamps element and the elem ent that the use be “not authorized.” We applied “knowingly” to the authorization language even though Congress had not “explicitly and unambiguously” indicated that it should so apply. But if knowingly did not modify the fact of nonauthorization, we explained, the statute “would . . . criminalize a broad range of apparently innocent conduct.” Ruan , 142 S. Ct. at 2378 (internal citations omitted). Just as in Liparota , to convict under § 841(a) of the CSA, “the Government may prove by reference to facts and circumstances surrounding the case that petitioner knew that his conduct was Appellate Case: 19-8054 Document: 010110807970 Date Filed: 02/03/2023 Page: 910 unauthorized or illegal.” Liparota , 471 U.S. at 434. 3 However, the government’s showing of objective criteria, without proving that a defendant actua lly intended or knew that he or she was acting in an unauthorize d way, is not enough to convict. Id.
B. The District Court Incorrectly Inst ructed the Jury as to Mens Rea We conclude that the jury instructions i ssued in Dr. Kahn’s case are inconsistent with the mens rea standard articulated in Ruan , as they do not require the government to prove beyond a reasonable doubt that Dr. Ka hn knowingly or intentionally acted in an unauthorized manner.
1. Standard “We review de novo whether jury instructio ns, as a whole, correctly state the law and provide the jury with an understanding of the issues.” United States v. Little , 829 F.3d 1177, 1181 (10th Cir. 2016) (citation om itted). “We will disturb a judgment only if we have ‘substantial doubt that the jury was fairly guided.’” Id. (quoting United States v. Smith , 13 F.3d 1421, 1424 (10th Cir. 1994)).

3 While the defendant in Liparota knew that he was purchasing food stamps below the market rate, 471 U.S. at 421–22, such knowledge was not enou gh to establish guilt, id. at 429–30. The Supreme Court held that k nowingly engaging in conduct that is, in fact, unauthorized is not suffici ent, even if one is aware of all the factors that render it unauthorized. Instead, the government was requi red to prove that the defendant actually knew that his conduct was unauthorized und er the law. Importantly, however, the Supreme Court concluded that “the Governme nt need not show that [a defendant] had knowledge of specific regulations govern ing food stamp acquisition or possession.” Id. at 434. Appellate Case: 19-8054 Document: 010110807970 Date Filed: 02/03/2023 Page: 1011 2. Analysis

a. Legitimate Medical Purpose or Usual Course of Professional Practice The jury was repeated ly instructed that it could c onvict Dr. Kahn if it concluded that he acted outside the usual course of professional medical practice or without a legitimate medical purpose. See, e.g. , Aplt. App., Vol. I at 22 0–21 (instructions for Count One), 224–25 (instructions for Count One), 232 (instructions fo r Count One), 236–37 (instructions for Counts Four, Six, Seven, Eleven, Fourteen, Sixteen, Nineteen, and Twenty), 239 (instructions for Counts One, F our, Six, Seven, Eleven, Fourteen, Sixteen, Nineteen, and Twenty), 264 (i nstructions for Count Twenty One). In review of the instructions given, we previ ously concluded that “§ 841(a )(1) and § 1306.04(a) require the government to prove that a practitioner-defendant either : (1) subjectively knew a prescription was issued not for a legitimate medical purpose; or (2) issued a prescription that was objectively not in the usua l course of professional practice.” Kahn , 989 F.3d at 825 (emphasis added) (citing United States v. Nelson , 383 F.3d 1227, 1233 (10th Cir. 2004)). In partitioning § 1306.04(a), we treate d the inquiry under th e first “prong” as wholly subjective, consider ing “why a defendant-practitione r subjectively issued that prescription, regardless of whether other pr actitioners would have done the same,” and we treated the inquiry under the second pron g as wholly objective, considering “whether a defendant-practitioner objectivel y acted within that scope, regardless of whether he believed he was doing so.” Id. For two reasons, this analysis is incorrect under Ruan

. Appellate Case: 19-8054 Document: 010110807970 Date Filed: 02/03/2023 Page: 1112 First, Ruan expressly disallows conviction under § 841(a)(1) for behavior that is only objectively unauthorized. The government must prove that a defendant “knowingly or intentionally acted in an unauthorized manner.” Ruan , 142 S. Ct. at 2376. Second, Ruan treats the two criteria in § 1306.04(a) not as distinct bases to support a conviction, but as “referen ce to objective criteria” that may serve as circumstantial evidence of a defendant’s subjective in tent to act in an unauthorized manner. Id. at 2382; see also id. at 2377 (“[T]he regulatory language defi ning an authorized prescription is . . . ambiguous, written in generalit[ies], susceptibl e to more precise de finition and open to varying constructions.” (internal quota tion marks and citations omitted)). Under § 841(a)(1), the government always has the bu rden of “proving that a defendant knew or intended that his or her conduct was unauthorized.” Id. at 2382. 4 Accordingly, the jury instructions were erroneous because they a llowed the jury to c onvict Dr. Kahn after concluding either that Dr. Kahn subjectivel y knew a prescription was issued not for a legitimate medical purpose, or that he issued a prescription that was objectively not in the usual course of professional practice. Both approaches run counter to Ruan

.

4 This court previously stated its concern that “[i]f a s ubjective standard applied to both prongs, a pharmacist who willingly ignored evidence that a prescription was invalid could escape liability, so long as he (even unreasonably) believed the prescription was filled for a legitimate medical purpose, and he acted within his own (unreasonable) scope of professional practice.” Kahn , 989 F.3d at 825. The Supr eme Court, however, did not share this concern, and Ruan holds that an unreasonable pha rmacist may not be convicted if he did not intend to act in an unauthorized way. Ruan , 142 S. Ct. at 2382. Of course, evidence of objective unreasona bleness may support a jury’s ultimate finding that a defendant subjectively intended to act without authorization. Id. Appellate Case: 19-8054 Document: 010110807970 Date Filed: 02/03/2023 Page: 1213 b. Good Faith Instruction The district court provided the jury with the following “good fa ith” instruction:
JURY INSTRUCTION NO. 39 . . . The good faith of Defendant Shakeel A. Kahn is a complete defense to the charges in Count One (conspiracy to commit a federal drug crime) as well as the charges in Counts Four, Six, Seven, Eleven, Fourteen, Sixteen, Nine teen, and Twenty (knowingly and unlawfully dispensing an d/or distributing Oxycodone outside the usual course of pr ofessional practice and without a legitimate medical purpose), becaus e good faith on the part of Defendant Shakeel Kahn woul d be inconsistent with knowingly and intentionally di stributing and/or dispensing controlled substances outside th e usual course of professional practice and without a legitimate medical purpose, which is an essential part of the charges. “Good faith” connotes an attempt to act in accordance with what a reasonable physician should believe to be proper medical practice . . . . The good faith defense requires the jury to determine whether Defendant Shakeel Kahn acted in an honest effort to prescribe for patients’ medical conditions in accordance with generally recognized and accepted standards of practice. Aplt. App., Vol. I at 239. In light of Ruan , this good faith exception is also problematic. The good faith exception’s reliance on terms like “reasonable physician” and “should believe” impose an objective standard and are exactly the type of language that the Supreme Court stated is impermissible. Ruan , 142 S. Ct. at 2381 (“The Government’s [‘objectively reasonable good-faith effort’] sta ndard would turn a defendant’s criminal liability on the mental state of a hypothetical ‘reasonable’ doctor, not on the mental state of the defendant himself or herself.”). Sectio n 841(a) does not “use[] words such as ‘good faith,’ ‘objectively,’ ‘reasonable,’ or ‘honest e ffort,’” and a district court cannot insert them into the ju ry instructions. Id. Further, the instruction’s us e of the word “attempt” is Appellate Case: 19-8054 Document: 010110807970 Date Filed: 02/03/2023 Page: 1314 equally precarious. The questi on to be posed to a jury is whether a physician was subjectively intending to act in a way that he believed wa s unauthorized—not whether he was attempting to act in a way that a “r easonable physician should believe” was authorized or unauthorized. See Aplt. App., Vol. I at 239. Again, “[t]he Government . . . [must] prove knowledge of a lack of authorization.” Ruan , 142 S. Ct. at 2382.
3. Conclusion To convict under the CSA, “the Gove rnment must prove beyond a reasonable doubt that the defendan t knowingly or intentionally acte d in an unauthor ized manner.” Id. Here, the instructions provided to the jury improperly interjected a good faith exception and effectively lowered the government’s bu rden to showing only that Dr. Kahn’s behavior was objectively unauthorized—not that Dr. Kahn intended to act without authorization. The go vernment argued in Ruan that the Supreme Court “should read [§ 841] as implicitly containing an ‘objectiv ely reasonable good-faith effort’ or ‘objective honest-effort standard,’” but the S upreme Court was “not convinced.” Id. at 2381. So our analysis, likewise, must end there. The in structions given in Dr. Kahn’s trial do not correctly state the mens rea requirement of § 841(a)(1), as articulated in Ruan

. C. The Invalid Jury Instructions Di d Not Result in Harmless Error Next, we must determine whether the errors in the jury instru ctions are harmless beyond a reasonable doubt. Because the issue of Dr. Kahn’s intent was contested during trial, and because the government has not es tablished beyond a reasonable doubt that the Appellate Case: 19-8054 Document: 010110807970 Date Filed: 02/03/2023 Page: 1415 jury determined that Dr. Kahn knowingly or intentionally acted not “as authorized,” we conclude that the instructions provided to the jury did not resu lt in harmless error.
1. Standard The purpose of jury instruc tions is to give jurors the correct principles of law applicable to the facts so that they can reach a correct conclusion as to each element of an offense according to the law a nd the evidence. However, “[e]ve n when the district court fails to include an element of the crime in the instruction (i ncluding a mens rea element), we . . . apply the harmless error rule, as king whether it appears beyond a reasonable doubt that the error compla ined of did not contribute to the verdict obtained.” Little , 829 F.3d at 1183 (quoting United States v. Sorensen , 801 F.3d 1217, 1229 (10th Cir. 2015)). The harmless error rule also applies where an instruc tion was given incorrectly. See, e.g. , United States v. Benvie , 18 F.4th 665, 670 (10th Cir. 20 21). When applying the harmless error rule, “we must determine ‘whether the guilty verdict ac tually rendered in this trial was surely unattributable to the [alleged] error,’” United States v. Mullikin , 758 F.3d 1209, 1211 (10th Cir. 2014) (quoting Sullivan v. Louisiana , 508 U.S. 275, 279 (1993))— not “whether, in a trial that occurred withou t the error, a guilty verd ict would surely have been rendered,” Sullivan , 508 U.S. at 279. “That must be so, because to hypothesize a guilty verdict that was never in fact rendere d—no matter how inescapable the findings to support that verdict might be—would violate the jury-trial guarantee.” Id. “It is well-established that the burden of proving harmless error is on the government.” United States v. Holly , 488 F.3d 1298, 1307 (10th Cir. 2007). Again, the Appellate Case: 19-8054 Document: 010110807970 Date Filed: 02/03/2023 Page: 1516 general test for harmless error requires that the government prove “beyond a reasonable doubt that the error compla ined of did not contribute to the verdict obtained.” United States v. Luke-Sanchez , 483 F.3d 703, 705 (1 0th Cir. 2007) (citing Neder , 527 U.S. at 15) (applying this test to “[a] jury instruction that improperly describe[d] an element of the charged crime”); see also Neder , 527 U.S. at 11 (extending harmless error analysis to instructions that omit an el ement; “[o]mitting an element can easily be analogized to improperly instructing the jury on the element, an error that is subject to harmless-error analysis.”). In the context of jury instructions that omit—rather than misstate—an element, we have sometimes invoked a passage of Neder that imposes additional requirements. Under that test , the government must prove “beyond a reasonable doubt that the omitted element was uncontested an d supported by overwhelming evidence, such that the jury verdict would have been the same absent the error.” Neder , 527 U.S. at 11. We have previously declined to “parse out the proper formulation of the harmless-error standard for direct review under Neder ,” United States v. Schneider , 665 F. App’x 668, 672 (10th Cir. 2016), 5 and we may continue to avoid doing so here. Under either iteration

5 “Defendants contend the applicable st andard for determining harmless error when, as here, the jury was not instructed on an element of the offense is whether the ‘reviewing court concludes beyond a reasona ble doubt that the omitted element was uncontested and supported by overwhelming eviden ce, such that the jury verdict would have been the same absent the error.’ Neder , 527 U.S. at 17. In reviewing such instructional error for harmlessness on dire ct appeal from a conviction, we have sometimes invoked this standard verbatim. We have on other occasions invoked another passage from Neder that does not refer to whether the omitted element was uncontested or supported by overwhelming evidence, but simply asks more generally ‘whether it Appellate Case: 19-8054 Document: 010110807970 Date Filed: 02/03/2023 Page: 1617 of the test for harmless error, the governme nt has not shown beyo nd a reasonable doubt that the instructional error was harmless.
2. Analysis During his testimony at trial, Dr. Kahn did not contest the fact that he wrote the relevant prescriptions, nor di d he contest that the testif ying patients were abusing or selling their medications. The central issue put to the jury in Dr. Kahn’s trial was his intent in issuing the charged prescriptions. We start with Neder ’s test for reviewing instructions that omit an element, moving then to the general ha rmless error test. We conclude that, under both tests, the government has not met its burden in showing that the erroneous jury instructions played no part in the jury’s verdict.

a. The Mens Rea Element Was Not Uncontested and Supported by Overwhelming Evidence, Such That the Jury Verdict Would Have Been the Same Ab sent the Error Under the more specific test articulated in Neder for reviewing instructions which omitted elements, the government must pr ove “beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming eviden ce, such that the jury verdict would have been the same absent the error.” 527 U.S. at 11. Here, the government is correct that the Supreme Co urt has acknowledged that “the scope of a doctor’s prescribing authority” remains tethered “to objective criteri a such as ‘legitimate

appears beyond a reasonable doub t that the error complained of did not contribute to the verdict obtained.” Schneider , 665 F. App’x at 672 (internal citations omitted). Appellate Case: 19-8054 Document: 010110807970 Date Filed: 02/03/2023 Page: 1718 medical purpose’ and ‘usual cour se’ of ‘professional practice.’” Ruan , 142 S. Ct. at 2382. A physician’s serial disregard of accepted me dical norms constitutes relevant evidence of his mental state, and “the more unreas onable a defendant’s asserted beliefs or misunderstandings are, especially as measured against objective criteria, the more likely the jury . . . will find that the Government has carried its burden of proving knowledge.” Id. (internal quotation marks an d citations omitted). But, while the government may point to voluminous trial testimony and numero us exhibits meant to prove (through circumstantial evidence) that Dr. Kahn knowingly or intentionally acted in an unauthorized manner, we cann ot reach this conclusion. This is not a case in which the elem ent of the crime that was impacted 6 by the invalid jury instruction was “uncontested and supported by overwhelming evidence,” and where “the defendant ‘did not contest the element . . . at trial,’ and did not ‘suggest that he would introduce any evid ence bearing upon the issue . . . if so allowed.’” United States v. Ellis , 868 F.3d 1155, 1172 (10th Cir. 2017) (quoting Neder , 527 U.S. at 15, 17). Where an element of an offense is contested at tria l, as it was here, the Constitution requires that the issue be put before a jury—not an appellate court. See Neder , 527 U.S. at 18–19 (discussing the Sixth Amendment’s jury guarant ee; “[i]n a case . . . where a defendant did not, and apparently could not, bring forth facts contesting th e omitted element, answering

6 We need not decide wh ether the mens rea element was omitted or rather misstated in the jury instructions. Rega rdless of the label one could apply, the instructional requirements of Ruan are not satisfied. Appellate Case: 19-8054 Document: 010110807970 Date Filed: 02/03/2023 Page: 1819 the question whether the jury ve rdict would have been the same absent the error does not fundamentally undermin e the purposes of the jury tr ial guarantee”). In this case, Dr. Kahn’s intent was in dispute throughou t his trial and was the centerpiece of his defense. A jury, properly in structed, must address whethe r the government carried its burden to establish Dr. Kahn’s intent beyond a reasonable doubt. For this court to now essen tially retry the case on appeal and opine on what verdict the jury would have reached if it had been properly instru cted asks too much of an appellate court. This is particularly true he re, where we would be determining Dr. Kahn’s subjective intent on a cold re cord. This court will not wade into the evidence to now apply the correct instructions—tha t is the jury’s prerogative. b. The Guilty Verdict Actua lly Rendered in Dr. Kahn’s Trial Was Not Surely Unattributable to th e Alleged Instructional Error The more general harmless error questio n is whether, given what the jury necessarily did find based on the instructions it was provided, “the guilty verdict actually rendered in this trial was surely unattributab le to the [alleged] error.” Mullikin , 758 F.3d at 1211 (quoting Sullivan , 508 U.S. at 279). Here, we can not say with certainty that the erroneous instructions, which effectively re duced the government’s burden of proof, did not contribute to the verdict. As we stated in our prior op inion, the jury instructions given in Dr. Kahn’s trial meant that the jury “could only convict Dr. Kahn if it found, beyond a reasonable doubt, that Dr. Kahn failed to even attempt or make some honest effort to apply the appropriate Appellate Case: 19-8054 Document: 010110807970 Date Filed: 02/03/2023 Page: 1920 standard of care.” Kahn , 989 F.3d at 826. The instructions provided in Dr. Kahn’s trial did not require the jury to decide whethe r Dr. Kahn knowingly or intentionally acted without authorization. While proof that Dr. Kahn failed to try to conform his prescribing practices to the standards of his profession may “go far to show , circumstantially at le ast, that [Dr. Kahn] actually knew he was acting outside the standard s of his profession,” Aple. Supp. Br. at 6, that evidence does not fully sa tisfy the requirement that the government prove that Dr. Kahn “knowingly or in tentionally acted in an unauthorized manner,” Ruan , 142 S. Ct. at 2376. It is not enough that the jury found that Dr. Kahn failed to attempt or make some honest effort to apply the appropriate standa rd of care, nor is it enough that the jury accepted that Dr. Kahn subjectively knew a pr escription was issued not for a legitimate medical purpose, and/or issued a prescription that was objectively not in the usual course of professional practice. To allow conviction where the government proved only that Dr. Kahn failed to attempt or make some honest effort to appl y the appropriate standard of care does not require any finding by the ju ry that Dr. Kahn intended to act not “as authorized.” The government must show that th e jury necessarily made a fi nding that Dr. Kahn knowingly or intentionally acted not “as authorized.” As it stands, the jury in Dr. Kahn’s case was provided incorrect instructions , and that error went directly to the heart of the trial: Dr. Kahn’s intent. The instructions allowe d conviction if the jury concluded “that Dr. Kahn failed to even attempt or make so me honest effort to apply the appropriate Appellate Case: 19-8054 Document: 010110807970 Date Filed: 02/03/2023 Page: 2021 standard of care.” Kahn , 989 F.3d at 826. Based on the ju ry instructions, as they were written and presented to the jury , the jury was not required to find that Dr. Kahn intended to or knowingly did act not “as authorized.” The jury did not make the required mens rea finding, and “to hypothesize a guilty verdict that was never in fact rendered—no matter how inescapable the findings to support that verdict might be—would violate the jurytrial guarantee.” Sullivan , 508 U.S. at 279.
3. Conclusion We cannot conclude beyond a reasonable do ubt that the mens rea element, “was uncontested and supported by overwhelmi ng evidence, such that the jury verdict would have been the same absent the error.” Neder , 527 U.S. at 17 (emphasis added). Nor can we conclude that the jury’s verdict was unattr ibutable to the errone ous instruction. The government may be able to present circumstantial evidence that Dr. Kahn knowingly or intentionally acted in an unau thorized manner (indeed, the government has attempted to do so on remand to this court), but this court should not assume the responsibility of making a finding on a contested issue of fact. Connecticut v. Johnson , 460 U.S. 73, 85– 86 (1983) (“If the jury may have failed to cons ider evidence of intent, a reviewing court cannot hold that the error did not contribute to the verdict. The fact that the reviewing court may view the evidence of intent as ove rwhelming is then simply irrelevant.”); see also United States v. Twitty , 641 F. App’x 801, 805 (10th Cir. 2016) (“Appellate judges are poorly equipped to evaluate states of mind based on a cold record. The issue of . . . subjective intent is one best left to the determination of a properly instructed jury.” Appellate Case: 19-8054 Document: 010110807970 Date Filed: 02/03/2023 Page: 2122 (internal quotation marks a nd citations omitted)). We cannot act as a “second jury.” Neder , 527 U.S. at 19 (citation omitted). We concl ude that the erroneous jury instructions issued in Dr. Kahn’s trial did not result in harmless error.
D. Dr. Kahn’s Remaining Convictions Finally, we discuss which of the counts of conviction, specifically, were affected by erroneous instructions. We determine that each of Dr. Kahn’s convictions was impacted by erroneous instruc tions in a way that prejudiced him, and, therefore, we remand with directions to vacate his convictions on all counts. The jury instructions pertaining 21 U.S. C. §§ 841(a)(1) and (b)(1)(C), as charged in Counts Four, Six, Seven, Eleven, Fourt een, Sixteen, Nineteen, and Twenty all contain the following language: To Prove [Dr. Kahn] is guilty of [these counts], the Government must prove beyond a reasonable doubt [that] . . . [Dr. Kahn] knowingly or intenti onally distributed or dispensed the controlled substance outsi de the usual course of professional medical practice or without a legitimate medical purpose. Aplt. App., Vol. I at 237. The instructions as to these counts and, in addition, Count One, which charges conspiracy to dispense and di stribute controlled substances resulting in death, in violation of 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(C), and (b )(2), also include the good faith exception. Id. at 239–40. Accordingly, as disc ussed above, the instructions as to Counts One, Four, Six, Seven, Eleven, Fourteen, Sixteen, Nineteen, and Twenty are erroneous and did not re sult in harmless error. Appellate Case: 19-8054 Document: 010110807970 Date Filed: 02/03/2023 Page: 2223 As for the remaining counts , the instructions predicat e conviction on the jury’s finding of guilt in the erroneously-instructe d Counts One, Four, Six, Seven, Eleven, Fourteen, Sixteen, Nineteen, and Twenty. For example, the instructions for Counts Five, Nine, and Ten, which charge Dr. Kahn w ith aiding and abetting his codefendant in furtherance of § 841(a)(1) crimes, in violati on of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) and 18 U.S.C. § 2, state, “[t] his means the government must prove that [Dr. Kahn] shared [his codefendant’s] knowledge of the underlying [§ 841(a)(1)] criminal act and intended to help him.” Id. at 258. The instructions for Counts Eight, Twelve, Thirteen, Seventeen, and Eighteen charge Dr. Kahn with use of a communication fa cility in furtherance of the crimes charged in Counts One, Seven, and Eleven, in viol ation of 21 U.S.C. § 843(b). Id. at 253–55. Count Two charges Dr. Kahn with possession of a firearm, again, “in furtherance of a federal drug trafficking crime, ” in violation of 18 U.S.C. § 924(c)(1), and the instructions indicate that conviction rest ed on whether the jury concluded that Dr. Kahn possessed a firearm in furtherance of Count One. Id. at 242–43. The instructions for Count Twenty One charge Dr. Kahn with “continuing criminal enterprise,” in violation of 21 U.S.C. § 848(a), (b), and (c), which the inst ructions define as the continuation of the illegal drug activities detailed in Counts One through Twenty. Id. at 262. Finally, the instructions for Counts Twenty Two and Twenty Three charge Dr. Kahn with engaging in monetary transactions derived from specif ied unlawful activity (m oney laundering), in violation of 18 U.S.C. § 1957—th e “unlawful activity” at issue is, again, tied back to the Appellate Case: 19-8054 Document: 010110807970 Date Filed: 02/03/2023 Page: 2324 conduct charged in Counts One, Four throu gh Seven, Nine through Eleven, Fourteen, Sixteen, Nineteen, and Twenty. Id. at 271–73. For each § 841(a)(1) charge on which D r. Kahn was convicted, the instructions erroneously articulated the mens rea requirement in light of Ruan . As regards the remaining charges, the instructions pertaining to those charges are likewise predicated, at least in part, on one or more of the erroneous § 841(a)(1) in structions. Accordingly, we conclude that Dr. Kahn’s convictions as to each count must be vacated.
III. C ONCLUSION The jury instructions issued in Dr. Kahn’ s trial incorrectly in structed the jury regarding the mens rea requirement of § 84 1(a), and this same error infected the instructions given on all counts. The gove rnment has not shown beyond a reasonable doubt that the erroneous jury instructions resulted in harm less error. Accordingly, we VACATE Dr. Kahn’s convictions and REMAND for new trial. Appellate Case: 19-8054 Document: 010110807970 Date Filed: 02/03/2023 Page: 24