NOT RECOMMENDED FOR PUBLICATION

File Name: 23a0242n.06

No. 20-3880

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

SAAD SAKKAL, M.D.,

Defendant-Appellant.

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ON REMAND FROM THE 

SUPREME COURT OF THE 

UNITED STATES 

OPINION

Before: ROGERS, COLE, and STRANCH, Circuit Judges.

ROGERS, Circuit Judge. 

With the express concurrence of the Government, the Supreme Court has vacated and 

remanded our affirmance of defendant Sakkal’s convictions for illegal distribution of controlled 

substances in violation of 21 U.S.C. § 841(a). In the previous appeal we rejected Sakkal’s

arguments that he was improperly denied bail, that the evidence against him was not sufficient, 

and that his trial counsel was ineffective in two ways that had been addressed by the district court 

following a hearing. We declined to address other ineffective-assistance issues on direct appeal 

and affirmed, leaving the unaddressed ineffective-assistance issues to possible consideration on 

collateral review under 28 U.S.C. § 2255. Subsequently, the Supreme Court held in Ruan v. United 

States, 142 S. Ct. 2370 (2022), that “once a defendant meets the burden of producing evidence that 

his or her conduct was ‘authorized’” under § 841(a), “the Government must prove beyond a 

reasonable doubt that the defendant knowingly or intentionally acted in an unauthorized manner.” 
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Id. at 2376. Sakkal timely petitioned for certiorari, contending that in light of Ruan the district 

court erred in its jury instructions on the mens rea requirement under § 841(a). The United States 

advised the Court to grant certiorari, vacate the decision below, and remand the case for further 

consideration (GVR) in light of Ruan. The Supreme Court did just that. The fact that the United 

States endorsed the GVR did not waive its argument that Sakkal failed to preserve the Ruan issue 

in the district court, so we apply plain error review. Because the instructions below survive 

deferential plain-error review, we adhere to our prior judgment of affirmance. This, however, does 

not preclude Sakkal from raising the Ruan issue as part of his ineffective-assistance-of-counsel 

claims in a subsequent collateral attack under 28 U.S.C. § 2255.

Saad Sakkal practiced medicine at Lindenwald Medical Association from February 2015 

to December 2016. Sakkal was licensed to practice medicine in Ohio and also had a Drug 

Enforcement Administration (DEA) registration number to dispense Schedule II through Schedule 

V controlled substances. The DEA began investigating Sakkal’s prescription practices after a 

referral from the Ohio Medical Board, which had received several phone calls from pharmacists 

about Sakkal’s issuance of problematic prescriptions.

In June 2018, a grand jury returned a thirty-nine-count indictment against Sakkal: thirty 

counts of illegal distribution of a controlled substance in violation of 21 U.S.C. § 841(a)(1); two 

counts of distribution of a controlled substance that resulted in death in violation of 

21 U.S.C. § 841(b)(1)(C); and seven counts of using the registration number of another to dispense 

a controlled substance in violation of 21 U.S.C. § 843(a)(2). 

At trial, the Government introduced testimony that Sakkal utilized several dangerous 

prescription methods. The Government’s expert, Dr. Timothy King, testified that Sakkal was 

prescribing multiple substances that served the same purpose and that this “therapeutic 
No. 20-3880, United States v. Sakkal

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duplication” risked “significant adverse effects, including respiratory sedation and death.” 

Sakkal also prescribed several dangerous combinations of controlled substances, including: 

(1) amphetamines and opioids; (2) methadone with a benzodiazepine and an amphetamine; and 

(3) opioids with a benzodiazepine and a muscle relaxant, Soma. Finally, Sakkal sometimes 

prescribed high amounts of controlled substances. 

The Government also presented testimony that Sakkal ignored warning signs about the 

danger of his prescription practices. Employees at Lindenwald administered drug screens to 

determine if patients were taking their controlled substances as prescribed and to evaluate whether 

the patient was also taking illegal controlled substances. These drug screens operate as an 

objective method to ensure that controlled-substance prescriptions do not contribute to a risk of 

overdose or maintenance of an addiction. Sakkal’s records indicated that his patients’ drug screens 

sometimes revealed that patients were taking unprescribed controlled substances or were not 

taking prescribed controlled substances. Sakkal’s records never showed that he discharged or 

disciplined a patient because of the concerning drug screens.

Sakkal also failed to use the Ohio Automated Rx Reporting System (OARRS) to monitor 

his patients’ prescriptions for controlled substances. This system is designed to log all of a 

patient’s controlled-substance prescriptions that are filled or dispensed in Ohio. This allows a 

physician to ensure that patients have not already received a prescription for their ailments and to 

confirm that patients have not been doctor shopping to obtain controlled substances. Even when 

other Lindenwald employees provided Sakkal with OARRS reports for his patients, he did not 

review the reports.

Several pharmacies became aware of Sakkal’s prescription practices and began calling 

Lindenwald to discuss concerns about them. Sakkal met with at least three pharmacies to discuss 
No. 20-3880, United States v. Sakkal

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these concerns, but he did not change his prescribing practices. Some pharmacies decided to stop 

filling Sakkal’s prescriptions for controlled substances. In addition to charging Sakkal with illegal 

distribution of controlled substances, the indictment charged Sakkal with two counts of illegally 

distributing controlled substances that resulted in a patient’s death.

At trial Sakkal requested inclusion of jury instructions regarding the “except as authorized” 

provision of 21 U.S.C. § 841(a). As relevant here, Sakkal proposed (instruction no. 3) instructing 

the jury that the Government must prove he “acted with intent to distribute the drugs and with 

intent to distribute them outside the course of professional practice,” and that, to find him guilty, 

“the jury must make a finding of intent, not merely with respect to distribution, but also with 

respect to [Sakkal’s] intent to act as a pusher rather than a medical professional.” He further 

requested the court include an instruction stating that a physician does not violate § 841 if he 

prescribed the substances in “good faith” in “accordance with what the physician should 

reasonably believe to be a proper medical practice.” Sakkal also requested the court instruct the 

jury as to the meaning of “outside the bounds of professional medical practice.” According to

Sakkal’s proposed instruction no. 2, prescribing outside the bounds of professional medical 

practice means “prescrib[ing] drugs as being used not for treatment of a patient, but for the purpose 

of assisting another in the maintenance of a drug habit or of dispensing controlled substances for 

other than a legitimate medical purpose; for example, the personal profit of the physician.” The 

district court declined to use Sakkal’s requested instruction on subjective intent (instruction no. 3) 

but did use his requested instruction on deliberate ignorance and good faith (instruction no. 7). 

Sakkal made no objection, at either the pre-trial conference or the follow-up conference held after 

the defense had rested, to the district court’s decisions to use instruction no. 7 and not use 

instruction no. 3. His only objection to the mens rea section of the jury instructions was to delete 
No. 20-3880, United States v. Sakkal

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“or was beyond the bounds of medical practice” after “in the usual course of his professional 

practice,” which the district court did. Thus, with respect to mens rea, the district court instructed 

as follows:

In order to find the defendant guilty of a violation of 21 U.S.C. 841(a)(1), the 

government must prove beyond a reasonable doubt each of the following elements:

(1) The defendant distributed or dispensed a controlled 

substance as alleged in these counts of the Indictment[;]

(2) The defendant acted knowingly and intentionally in 

distributing or dispensing that controlled substance; and

(3) The defendant’s act was not for a legitimate medical 

purpose in the usual course of his professional practice.

The instructions also included the following explanation:

The term “knowingly” means that the act was done voluntarily and intentionally 

and not because of a mistake or accident. Although knowledge of the defendant 

cannot be established merely by demonstrating that he was careless, knowledge 

may be inferred if the defendant deliberately blinded himself to the existence of a 

fact.

No one can avoid responsibility for a crime by deliberately ignoring the obvious. 

If you are convinced that the defendant deliberately ignored a high probability that 

the controlled substances alleged in these counts were distributed or dispensed 

outside the course of professional practice and not for a legitimate medical purpose,

then you may find that the defendant knew that this was the case.

But you must be convinced beyond a reasonable doubt that the defendant was aware 

of a high probability that the controlled substances were distributed or dispensed 

outside the course of professional practice and not for a legitimate medical purpose, 

and that the defendant deliberately closed his eyes to what was obvious.

Carelessness or negligence or foolishness on his part are not the same as knowledge 

and are not enough to find him guilty on any of these counts.

The jury convicted Sakkal, among other things, of thirty counts of illegally distributing a 

controlled substance. On Sakkal’s motion for a new trial, the district court held an evidential 

hearing, with new counsel for Sakkal, on whether Sakkal received ineffective assistance of trial 

counsel in two respects not relevant to this appeal. The district court proceeded to rule against 

Sakkal on these two ineffective-assistance claims.
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On Sakkal’s direct appeal, we rejected his first argument—that he was improperly denied

reasonable bail—and his second argument—that the evidence presented during trial was 

insufficient to establish that he caused the death of one of his patients. United States v. Sakkal, 

No. 22-3880, 2022 WL 557520, at *3–4 (6th Cir. Feb. 24, 2022). We reviewed and rejected the 

two ineffective-assistance-of-counsel claims that the district court had ruled upon following the 

hearing. We declined to address the remaining ineffective-assistance-of-counsel claims based on 

our consistent practice not to entertain ineffective-assistance-of-counsel claims on direct appeal 

where there has not been an opportunity to develop an adequate record to evaluate the merits of 

the allegations. See United States v. Williams, 612 F.3d 500, 508 (6th Cir. 2010). “Such claims 

‘are more properly available in a post-conviction proceeding under 28 U.S.C. § 2255, after the 

parties have had the opportunity to develop an adequate record on the issue from which the 

reviewing court is capable of arriving at an informed decision.’” Id. (quoting United States v. 

Rahal, 191 F.3d 642, 645 (6th Cir. 1999)). Among the listed claims we declined to review was 

Sakkal’s claim that his “counsel did not object to the jury instructions about the necessary intent 

required to convict” him. Sakkal, 2022 WL 557520, at *4 n.2. 

Before Sakkal’s time to petition for certiorari ran out, the Supreme Court decided Ruan v. 

United States, 142 S. Ct. 2370 (2022). The Ruan Court held that the “knowingly or intentionally” 

mens rea requirement applies not only to the “manufacture, distribute, or dispense” requirement 

of § 841(a), but also to the requirement that defendant’s acts have not been “authorized.” Id. at 

2375. In the Supreme Court’s words, “the Government must prove beyond a reasonable doubt 

that the defendant knew that he or she was acting in an unauthorized manner, or intended to do 

so.” Id. Sakkal sought certiorari, arguing that the Supreme Court should GVR our judgment on 

the ground that his jury had been given a scienter instruction that did not comply with the Ruan
No. 20-3880, United States v. Sakkal

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holding. In a three-sentence memorandum in response, the Government agreed that GVR was “the 

appropriate course.” The Supreme Court entered a GVR order in this and several other cases, 

some from this circuit and some from the Tenth and Eleventh Circuits. On remand, at our 

invitation, the parties have briefed how we should proceed. 

The remaining substantive issue now before us is whether the jury instructions with respect 

to mens rea were erroneous under the Ruan holding. There are also procedural issues regarding 

whether Sakkal forfeited that issue in the district court, whether Sakkal forfeited the issue in our 

court, and whether the Government forfeited reliance on these forfeitures by acquiescing in the 

GVR order. The bottom line is that, in light of this Court’s recent post-Ruan holding in United 

States v. Anderson, No. 21-3073, __ F.4th __, 2023 WL 2966356 (6th Cir. April 17, 2023), the

instructions in this case were not plainly erroneous, and affirmance is still required. 

We apply plain error review to the question of whether the district court’s scienter 

instruction complied with the holding of Ruan, because Sakkal did not preserve that jury 

instruction issue below, as required by Federal Rule of Criminal Procedure 30(d). Although 

Sakkal’s counsel did propose to the district court an instruction that he contends anticipated the 

requirements of Ruan, that is not sufficient because he never objected to the district court’s 

decision declining to give the instruction, despite clear opportunities to do so. In United States v. 

Semrau, 693 F.3d 510, 527 (6th Cir. 2012), we squarely held that merely proposing an instruction 

is not sufficient to preserve such an issue. Of course, when there is such a forfeiture, a defendant 

may nonetheless argue on direct appeal that there is plain error under Rules of Criminal Procedure

30(d) and 52(d). See Greer v. United States, 141 S. Ct. 2090, 2096 (2021). This is in line with

our recent unpublished opinion in United States v. Fabode, No. 21-1491, 2022 WL 16825408 (6th 

Cir. Nov. 8, 2022), where we accordingly reviewed a claim of instructional error based on Ruan
No. 20-3880, United States v. Sakkal

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for plain error. In that case, the defendant, who was convicted before Ruan came down, had not 

argued for a Ruan-compliant instruction either in the form of proposed jury instructions or in 

objecting to the instructions given in the district court. Id. at *6–7. 

Indeed, Sakkal’s supplemental reply brief (commendably) concedes that—apart from an 

argument based on the Government’s acquiescence in the GVR—“the government has the better 

of the preservation issue in the district court,” such that plain error review is proper. The 

Government’s acquiescence in the GVR, however, makes no difference. In Lawrence v. Chater, 

516 U.S. 163, 171 (1996), the Court referred to its “well established practice of GVR’ing based 

on confessions of error that do not purport to concede the whole case.” Chater cited Moore v. 

United States, 429 U.S. 20 (1976), in which the Court GVR’d “based on the Solicitor General’s 

confession of error, notwithstanding the Solicitor General’s unresolved claim that the error was 

harmless[.]” Id. Granting, vacating, and remanding is discretionary on the part of the Supreme 

Court, and the Solicitor General should be able to advise the Court to GVR in such a way as to 

conserve the Supreme Court’s scarce resources. When there are multiple certiorari petitions that 

have raised the same issue, and the Supreme Court has ruled on that issue, it makes sense that the 

remaining cases be sent back to the lower courts to apply the new law without deciding in each of 

those cases whether there is an alternative basis for deciding whether to grant certiorari. No one 

expects the Court to take all these cases just to make sure that there is not some independently 

dispositive issue lurking in any of them. It simply does not make sense to force the Government 

to find and argue such issues in the Supreme Court, on pain of waiving legitimate bases for ruling 

in its favor, when the obviously advisable course in many cases is just to send the case back, as 

the Court did in this case. In other words, the Court should be able to rule on one issue, and have 

that ruling considered where relevant in the lower courts, without having to address alternative 
No. 20-3880, United States v. Sakkal

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arguments in cases not yet before it. Moreover, the Government should be able to recommend 

such a course where appropriate, without waiving such alternative arguments.

The cases cited by Sakkal do not support his Government waiver argument. The fact that

the Government may use a petitioner’s failure to raise an issue as one reason to oppose certiorari 

does not require the conclusion that it must, on pain of forfeiting the issue in the court below. 

Moreover, that the Government may use the petitioner’s failure to raise an issue as one reason for 

opposing certiorari does not say anything about the meaning of a summary memorandum 

acquiescing in certiorari. Thus the Government briefs in Salgado v. United States, 140 S. Ct. 2640 

(2020) (No. 19-6590), 2020 WL 1372757, and Stevens v. Dep’t of Treasury, 500 U.S. 1 (1991), 

provide Sakkal no support on the GVR-acquiescence waiver issue. Of course, there are cases 

referring to the possibility that the Government may waive a waiver issue, but the cases cited by 

Sakkal do not deal with a GVR acquiescence, and most do not even deal with waiver at the 

certiorari level at all. See Greer, 938 F.3d at 770; United States v. Gibbs, 626 F.3d 344, 351 (6th 

Cir. 2010) (discussing waiver where we remanded the case to the district court). In Lee v. Kemna, 

534 U.S. 362, 376 n.8 (2002), there is indeed a reference to a Government procedural default in 

its opposition to the petition for a writ of certiorari, but the case also involved a Government failure 

to raise the waiver issue in the court below, i.e. not solely at the certiorari level, and the case did 

not involve a Government acquiescence in a GVR.

The Government’s agreement to a GVR thus did not forfeit the argument that Sakkal 

procedurally defaulted his objections to the district court’s intent instructions. Plain error review 

is therefore appropriate, unless Sakkal’s failure to challenge the intent instructions in his initial 

briefing to us in turn forfeited even plain error review. 
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However, we need not resolve the latter argument here. For practical purposes, GVR’ing 

our decision—based on a Supreme Court case that came down after appellate judgment but before 

a certiorari petition was due—is little different from having the court of appeals examine the 

applicability of Ruan before judgment in our court but after briefing. In the latter case, we do not 

doubt that we could order supplemental briefing on the relevance of the new precedent, based for 

instance on Rule of Appellate Procedure 28(j), and proceed to address the relevance of the new 

precedent with no harm to the structural interest of respect for the district court, and no harm to a 

party’s ability to fully address the issue. The possibility that the district court will be reversed 

without having had the chance to bring its actions into compliance with the law is just as small as 

under standard plain error review of its decisions. Also, by permitting supplemental briefing, the 

parties can address the applicability of the new precedent, just as they could where the new 

precedent came down during the late stages of appellate review. The latter situation occurred in 

Fabode, supra, and we proceeded to examine whether Ruan applied notwithstanding the failure of 

the defendant to argue regarding an intent instruction in his initial appellate briefing. Fabode, 

2022 WL 16825408, at *7.

However, we need not resolve this argument because, as in Fabode, it makes no difference 

as Sakkal’s intent instruction claim fails on plain error review. That conclusion is compelled by 

our post-Ruan decision in United States v. Anderson, No. 21-3073, __ F.4th __, 2023 WL 2966356 

(6th Cir. April 17, 2023), upholding a conviction under § 841(a) where the intent instruction was 

almost identical to the one in Sakkal’s case.

Sakkal argues that the following instruction in the district court “told the jury that the 

‘knowingly or intentionally’ element applied only to the act of distributing or dispensing (precisely 

the sort of instruction that the Supreme Court rejected in Ruan)”:
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In order to find the defendant guilty of a violation of 21 U.S.C. 841(a)(1), 

the government must prove beyond a reasonable doubt each of the following 

elements:

(1) The defendant distributed or dispensed a controlled substance as alleged in these

counts of the Indictment;

(2) The defendant acted knowingly and intentionally in distributing or dispensing 

that controlled substance; and

(3) The defendant’s act was not for a legitimate medical purpose in the usual 

course of his professional practice.

Sakkal’s supplemental reply brief characterizes this instruction as telling “the jury, point blank, 

that the scienter element of Section 841(a)(1) applies only to the act of ‘dispensing’ controlled 

substances, and not to the separate ‘except as authorized’ element.” This language clearly says 

that “knowingly and intentionally” applies to “dispensing,” and does not say that in so many words 

with respect to the negative “not for a legitimate medical purpose in the usual course of his 

professional practice.” 

Our recent holding in Anderson forecloses this negative implication argument, however. 

Anderson was another § 841(a) case in which the conviction preceded the Ruan decision. The 

instruction in that case was formulated a little differently but maintained the same dichotomy: the 

knowing-and-intentional scienter is specifically tied to the action of dispensing, but not specifically 

tied to the “not for a legitimate medical purpose in the usual course of his professional practice” 

requirement: 

First, the defendant knowingly or intentionally dispensed or distributed a Schedule 

II controlled substance, including fentanyl, Adderall, oxycodone and hydrocodone; 

and,

Second, that the defendant, Dr. Anderson, prescribed the drug without a legitimate 

medical purpose and outside the course of professional practice.

Anderson, 2023 WL 2966356, at *7. In evaluating whether this language reflected a violation of 

Ruan, our court reasoned as follows,
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The [district] court then gave “more detailed instructions on some of these terms.” 

In describing terms related to the second element, it explained that:

Although knowledge of the defendant cannot be established merely 

by demonstrating he was careless, knowledge may be inferred if the 

defendant deliberately blinded himself to the existence of a fact. No 

one can avoid responsibility for a crime by deliberately ignoring the 

obvious. If you are convinced that the defendant deliberately 

ignored a high probability that the controlled substance was 

distributed or dispensed without a legitimate medical purpose in the 

usual course of professional practice, then you may find that the 

defendant knew this was the case.

The instruction given to the jury specifically covers the holding of Ruan, by 

referring continuously to the “knowledge of the defendant,” his “deliberate 

ignorance,” and if he “knew” that the prescriptions were dispensed illegitimately. 

Such terms go beyond an objective view of the “usual course of professional 

practice” and instead direct the jury’s attention to Anderson’s subjective mindset in 

issuing the prescriptions. 

The [district] court goes on to further emphasize that knowledge, and no 

lesser level of culpability, is required to find Anderson guilty on this element: 

But you must be convinced beyond a reasonable doubt that the 

defendant was aware of a high probability that the controlled 

substances were distributed or dispensed other than for a legitimate 

medical purpose while acting in the usual course of professional 

practice, and that the defendant deliberately closed his eyes to what 

was obvious. Carelessness, or negligence, or foolishness on his part 

are not the same as knowledge and are not enough to find him guilty 

on this count.

The instructions given by the court, though not expressed in the way Anderson 

requested, substantially cover the concept of knowledge through the description of 

deliberate ignorance and the juxtaposition of “knowledge” with “[c]arelessness, 

negligence, or foolishness.” Cf. United States v. Damra, 621 F.3d 474, 502 (6th 

Cir. 2010) (finding that, in the tax evasion context, a good faith instruction was 

substantially covered by the court’s instruction that the defendant had to have acted 

voluntarily and deliberately to violate known law to be found guilty). Because the 

jury instructions given in Anderson’s case appear to comport to Ruan and to 

substantially cover the requested instruction, we reject Anderson’s argument that 

the district court abused its discretion in failing to give a good faith instruction. 
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Id. at *7–8 (citations omitted). This reasoning is directly applicable to Sakkal’s case because the

same deliberate ignorance instruction relied upon in Anderson to eliminate any negative inference

was given word-for-word in Sakkal’s trial. See supra, p. 5–6. 

Given Anderson’s holding that this language kept the instructions in that case from 

amounting to a violation of Ruan, the conclusion is compelled that the same language in Sakkal’s 

case kept the instructions from amounting to plain error. A reversal for plain error requires four 

elements:

First, there must be an error. Second, the error must be plain. Third, the error must 

affect “substantial rights,” which generally means that there must be “a reasonable 

probability that, but for the error, the outcome of the proceeding would have been 

different.” If those three requirements are met, an appellate court may grant relief 

if it concludes that the error had a serious effect on “the fairness, integrity or public 

reputation of judicial proceedings.”

Greer, 141 S. Ct. at 2096–97 (citations omitted). It is sufficient for the purposes of this case to 

conclude that the second requirement is not met, that any error be plain. For these purposes, 

“[p]lain is synonymous with ‘clear’ or, equivalently, ‘obvious.’” United States v. Olano, 507 U.S. 

725, 734 (1993). The Anderson court explained that “more detailed instructions” in that case 

ensured that the instructions comported with Ruan’s holding, and the same is true in Sakkal’s case 

by virtue of the identical “more detailed instructions.” See Anderson, 2023 WL 2966356, at *7–

8. It follows that the instruction in Sakkal’s case cannot be “plain error” in light of our published 

precedent in Anderson.

This conclusion is sufficient to affirm Sakkal’s conviction on direct appeal. We do not 

address the other elements of the plain error test, or any arguments regarding ineffectiveness of 

Sakkal’s counsel.

The judgment of the district court is affirmed.