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Feb. 27, 2026 Get Citation Alerts Download PDF Add Note

United States v. Lawrence Mark Sherman

Court of Appeals for the Sixth Circuit

• Citations: None known
• Docket Number: 25-1080
• Panel: Julia Smith Gibbons, Joan Louise Larsen, Eric Earl Murphy

• Judges: Julia Smith Gibbons; Joan L. Larsen; Eric E. Murphy

• Opinion

• Authorities (43)

• Cited By (0)

• Summaries (0)

• Similar Cases (17.7K)

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Combined Opinion

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 26a0056p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

┐
UNITED STATES OF AMERICA,
│
Plaintiff-Appellee, │

   Nos. 24-1470/25-1080

│
v. │
│
LAWRENCE MARK SHERMAN, M.D., │
Defendant-Appellant. │
┘

Appeal from the United States District Court for the Eastern District of Michigan at Ann Arbor.
No. 5:21-cr-20393-3—Judith E. Levy, District Judge.

Decided and Filed: February 27, 2026

Before: GIBBONS, LARSEN, and MURPHY, Circuit Judges.

---

COUNSEL

ON BRIEF: Ronald W. Chapman II, CHAPMAN LAW GROUP, Detroit, Michigan, for
Appellant. Andrew J. Lievense, UNITED STATES ATTORNEY’S OFFICE, Detroit, Michigan,
for Appellee.

---

OPINION

---

LARSEN, Circuit Judge. Dr. Lawrence Sherman was convicted at trial of one count of
conspiring to possess with intent to distribute and to distribute controlled substances and
nineteen counts of unlawful distribution of controlled substances. He now appeals the judgment
and the district court’s denial of his motion for new trial. Seeing no reversible error, we
AFFIRM.
Nos. 24-1470/25-1080 United States v. Sherman Page 2

I.

In April 2020, an illegal prescription pill dealer, Angelo Smith, and his girlfriend, Janeice
Burrell, opened Tranquility Wellness Center in Southeastern Michigan. They hired Dr.
Lawrence Sherman to work one day per week at Tranquility. New patients could walk in
without an appointment and Tranquility did not bill health insurance. The patients paid in cash
and typically walked out with an opioid prescription from Sherman. If a patient reported pain
but did not have an MRI report on file, Sherman typically wrote a prescription for Percocet. To
write any stronger a prescription, he expected an MRI report. Conveniently, one of Smith and
Burrell’s employees, Akeyla Bell, offered fake medical records for an extra charge. And, though
they never told Sherman about this aspect of the business, Sherman noticed that some “didn’t
quite look right.” E.g., R. 219, Excerpt of Proceedings, PageID 1420–21. On one occasion, Bell
gave a patient an MRI report Sherman had seen before. Sherman told the patient to “fix it.” Id.
Smith and Bell gave the patient a new fake MRI. The patient saw Sherman again that day and
went home with an opioid prescription. On another occasion, Sherman mentioned that he
suspected some patients were faking their pain, but he prescribed opioids nonetheless.

Patients were charged a cash fee for their initial visit so long as they received a
high-strength drug. Patients who did not receive a prescription or who received a low-strength
prescription were not charged. The clinic paid Sherman $100 for each initial visit in which the
patient was charged and paid him $25 for each time a patient returned and received a prescription
refill. Sherman typically did not interact with patients on their return visits, however; he instead
refilled their prescriptions electronically—sometimes from the office, sometimes from home, and
sometimes from vacations in Florida and Mexico. Altogether, Sherman wrote more than 4,100
prescriptions for more than 310,000 doses of Schedule II controlled substances while at
Tranquility.

Tranquility eventually attracted scrutiny. After a lengthy investigation, Sherman was
indicted on one count of conspiracy to possess with intent to distribute and to distribute
controlled substances and nineteen counts of unlawful distribution of controlled substances.
Tranquility’s owners and the rest of the staff were also indicted. They pleaded guilty; Sherman
went to trial, where his alleged co-conspirators testified against him. After hearing from Smith,
Nos. 24-1470/25-1080 United States v. Sherman Page 3

Burrell, Bell, other Tranquility associates, a government expert, more than one FBI agent, and an
IRS agent, the jury convicted Sherman on all counts. The district court sentenced Sherman to
144 months’ incarceration. Sherman now appeals the judgment and the district court’s denial of
his motion for new trial.

II.

Sherman first challenges the sufficiency of the evidence for his convictions and the
district court’s issuance of a deliberate ignorance instruction.

A.

We review “de novo the sufficiency of the evidence to sustain a conviction,” asking
“whether, after reviewing the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”
United States v. Emmons, 8 F.4th 454, 477–78 (6th Cir. 2021) (citation modified).

“Like most other claims, this one must be preserved below” by moving for a judgment of
acquittal. Lissa Griffin, Federal Criminal Appeals § 4.30 (rev. July 2025) (discussing Fed. R.
Crim. P. 29); accord 2A Wright & Miller’s Federal Practice & Procedure § 469 (4th ed. 2025)
(same, though noting that a distinct rule applies to criminal bench trials). Rule 29 permits a
defendant to so move either after “the government closes its evidence or after the close of all the
evidence.” Fed. R. Crim. P. 29(a). The court may “reserve decision on the motion” but “must
decide the motion on the basis of the evidence at the time the [motion was made].” Id. at 29(b).
Sherman moved for a judgment of acquittal at the close of the government’s case-in-chief. He
asked that “if the Court does reserve,” he be given “the ability to provide a written motion to the
Court for its benefit after the close of evidence.” R. 276, Trial Tr., PageID 5389. The court
agreed that it would afford him this opportunity. After hearing oral argument on the motion, the
district court initially indicated that it would “deny [the motion] at this time,” but quickly
switched course to “take it under advisement until the close of the case.” Id. at 5410.
Nonetheless, the district court chose to “give [counsel] a foreshadowing of [its] perspective on
this, which [was] that [the court] [did] not believe [Sherman had] met the requirements for
succeeding on a Rule 29” motion, but the court said it would “take it under advisement.” Id.;
Nos. 24-1470/25-1080 United States v. Sherman Page 4

see also R. 229, Bench Order. At the close of Sherman’s case-in-chief, counsel did not renew
the motion. Nor does it appear from the docket below that counsel ever provided the written
motion discussed. Twenty days after the jury returned a verdict, the court issued a two-page
written opinion denying the reserved motion for a judgment of acquittal.

The government argues that by failing to renew his motion at the close of evidence,
Sherman waived his motion. The traditional rule is that “when the defendant moves for
judgment of acquittal at the close of the government’s case-in-chief, and defense evidence is
thereafter presented but the defendant fails to renew the motion at the close of all of the
evidence, he waives objection to the denial of his earlier motion.” United States v. Price, 134
F.3d 340, 350 (6th Cir. 1998); see also 2A Wright & Miller §§ 463, 469; Griffin, supra, § 4.30.
In those circumstances, “appellate review is limited to determining whether there was a ‘manifest
miscarriage of justice.’” Price, 134 F.3d at 350 (citation omitted).

But some courts have questioned whether this rule applies when a court does not
immediately deny but rather reserves ruling on a motion made mid-trial, only to deny the motion
later. See 2A Wright & Miller § 463. In United States v. Wagner, we noted the D.C. Circuit’s
view that, in this situation, “the defendant does not waive his or her objection to the ultimate
denial . . . by failing to renew the motion at the close of all the evidence” and “is not required to
take any additional procedural steps to preserve the issue for appellate review.” 382 F.3d 598,
611 n.2 (6th Cir. 2004) (citing United States v. Wahl, 290 F.3d 370, 374 (D.C. Cir. 2002)). But
Wagner did not decide the question because, in that case, the district court never ruled on the
reserved motion. Id. We need not decide that question here either. Because Sherman’s
arguments fail even under the usual rational-trier-of-fact analysis, we apply that standard here.

The crux of Sherman’s argument on appeal is that the government’s objective evidence
cannot prove that he had actual, subjective knowledge that his prescriptions were unauthorized
under the Controlled Substances Act or that he knowingly entered into a conspiracy to distribute
those drugs. Start with the first of those issues. True: the Supreme Court’s recent decision in
Ruan v. United States makes plain that the government “must prove beyond a reasonable doubt
that the defendant knowingly or intentionally acted in an unauthorized manner,” a
subjective inquiry. 597 U.S. 450, 468 (2022). But it is black letter law that there need not be
Nos. 24-1470/25-1080 United States v. Sherman Page 5

“direct evidence of the defendant’s mental state, such as by testimony of the defendant at trial.”
1 Jens David Ohlin, Wharton’s Criminal Law § 5:1 (16th ed. 2025). And Ruan confirmed that
the government “of course, can prove knowledge of a lack of authorization through
circumstantial evidence.” 597 U.S. at 467. It may do this by putting on evidence showing just
how “unreasonable a defendant’s asserted beliefs” are, “as measured against [the] objective
criteria” of the Controlled Substances Act—such as a reasonable doctor’s “legitimate medical
purpose and usual course of professional practice.” Id. (citation modified). Accordingly, a
defendant’s “fail[ure] to adequately examine [his] patients, establish diagnoses, consider red
flags, or attempt more conservative treatment options,” “in violation of the standard of care
espoused by the Government’s [medical practice] expert,” permits a jury to infer the defendant’s
subjective knowledge and intent to issue unauthorized prescriptions. United States v. Bauer, 82
F.4th 522, 529 (6th Cir. 2023).

Sherman does not meaningfully dispute the presence of such objective evidence. The
jury heard expert testimony that Sherman’s conduct in examining patients, prescribing narcotics,
and issuing refills deviated from usual, legitimate medical practice. Jurors saw the transparently
fake MRI reports Sherman’s alleged co-conspirators provided him to substantiate his diagnoses.
They observed his consistent choice to prescribe the drugs most popular on the street at the
highest available strength. Jurors heard that Sherman never checked the results of the urine
screens he ordered to see if patients were abusing other drugs. And the jury knew that Sherman
agreed to work in a clinic that would pay him for patient work only if he prescribed a sufficiently
strong narcotic. This evidence, viewed in the light most favorable to the government, allowed
the jury to conclude that Sherman knew that his prescriptions were not authorized. And because
Sherman disputes only that he knew of and shared the criminal intent of his putative co-
conspirators, this same evidence suggesting that Sherman knowingly issued unauthorized
prescriptions permits a jury to infer that he voluntarily and knowingly joined the conspiracy to
do so.

B.

Sherman next argues that the district court erred in issuing a deliberate ignorance
instruction to the jury. We review for an abuse of discretion and will reverse only if
Nos. 24-1470/25-1080 United States v. Sherman Page 6

“the instructions as a whole prove confusing, misleading, or prejudicial.” United States v.
Stanton, 103 F.4th 1204, 1212 (6th Cir. 2024); accord United States v. Geisen, 612 F.3d 471,
485 (6th Cir. 2010). The district court informed the jury that:

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 he was issuing unauthorized prescriptions, that is prescriptions
that were not issued for a legitimate medical purpose in the usual course of
professional practice by a licensed doctor, then you may find that he knew about
it.
But to find this, you must be convinced beyond a reasonable doubt that the
defendant was aware of a high probability that he was issuing unauthorized
prescriptions. That is prescriptions that were not issued for a legitimate medical
purpose in the usual course of professional practice by a licensed doctor and that
the defendant deliberately closed his eyes to what was obvious.
Carelessness or negligence or foolishness on his part is not the same as
knowledge and it is not enough to convict. This, of course, is all for you to
decide.

R. 273, Trial Tr., PageID 4560.

These instructions are functionally identical to language we endorsed three years ago in
United States v. Anderson, 67 F.4th 755, 766 (6th Cir. 2023) (per curiam), cert. denied, 144 S.
Ct. 552 (2024), and Sherman does not contend otherwise. So the only question here is whether it
was proper to give a deliberate ignorance instruction on the facts of this case.

A trial court may instruct a jury on deliberate ignorance if “(1) the defendant claims a
lack of guilty knowledge; and (2) the facts and evidence support an inference of deliberate
ignorance.” United States v. Mitchell, 681 F.3d 867, 876 (6th Cir. 2012). Sherman focuses on
the second of these prongs, arguing that “the court never identified any particular fact that [he]
was alleged to have deliberately ignored” and failed to link the instruction “to any specific
evidence of willful blindness.” Appellant Br. at 28.

Sherman’s argument lacks merit. The evidence adequately supports the inference that
Sherman deliberately ignored the fact that there was no legitimate medical purpose for the
prescriptions he wrote. In its opinion denying the motion for new trial, the district court
identified Sherman’s agreement to work for a clinic that did not bill insurance and to be paid, in
Nos. 24-1470/25-1080 United States v. Sherman Page 7

cash, only for those patient visits that produced a prescription for a strong opioid. It identified
Sherman’s failure to review the results of his patients’ drug screenings. It identified Sherman’s
failure to communicate with patients after an initial visit by phone, email, or messaging platform
before renewing their prescriptions. It identified Sherman’s decision to prescribe narcotics
despite questioning the authenticity and existence of patients’ MRI reports, despite failing to
ensure that patients attended physical therapy, and despite remarking that he thought some
patients “were faking it in terms of their physical exam.” R. 339, Op. & Order, PageID 6219
(quoting R. 218, Trial Tr., PageID 1242). As before, this evidence permits the inference that
Sherman issued prescriptions with actual knowledge that those prescriptions were unauthorized.
And, alternatively, the evidence permits the inference that Sherman merely looked the other way,
“deliberately ignor[ing] a high probability that he was issuing unauthorized prescriptions,”
“deliberately clos[ing] his eyes to what was obvious.” R. 273, Trial Tr., PageID 4560 (jury
instructions). The district court did not err by giving the instruction.

III.

Sherman next argues that the district court erred in refusing to admit pages of his patient
notebooks during his cross-examination of Angelo Smith and FBI Case Agent Koczenasz. The
district court refused to admit the evidence because it found that the witnesses could not properly
authenticate the documents, the documents were irrelevant, and the documents were hearsay that
fell under no exception to the rule prohibiting it. See R. 339, Op. & Order, PageID 6164–6180.
Any one of these rationales is sufficient to justify the exclusion. “We review a district court’s
exclusion of evidence for an abuse of discretion.” United States v. Thompson, 119 F.4th 445,
449 (6th Cir. 2024) (per curiam).

Sherman has not proffered the content of these documents in any detail. In his brief on
appeal, he represents that the “notebooks included handwritten notes not found in the EMRs
[(electronic medical records)]” that would demonstrate that “he did take patient histories and
properly assessed medical conditions before prescribing controlled substances.” Appellant Br. at
37. This is in some tension with his description of the contents at trial. There, he claimed that
“these notebooks match up with the EMR” (“the principal purpose for offering the notebooks”);

and the notebooks were trustworthy because “you can compare [the notebooks] with the
Nos. 24-1470/25-1080 United States v. Sherman Page 8

electronic medical record” and find that “the information is the same.” R. 276, Trial Tr., PageID
5331, 5334. To be sure, when the district court explained that it understood the notebooks to be
duplicative of the EMRs, defense counsel offered that “it is important . . . to compare what Dr.
Sherman wrote contemporaneously with what is specifically in the EMR”—suggesting that some
differences were present. Id. at 5336. But defense counsel also described Sherman as
“cop[ying]” whatever information was in the notebooks “to a chart later.” Id. In any event, as
the district court noted, neither Sherman’s arguments at trial nor his Motion for New Trial
“identif[ied] any ‘additional information’ in the notebooks that was not recorded in the electronic
medical record,” much less did they explain why such information was relevant. R. 339, Op. &
Order, PageID 6175. And his appellate briefing does no better. To this day, we do not know
what information he claims was in the notebooks but was not in the EMR.

“A ruling excluding evidence may be appealed by right only where there was a proper
offer of proof” providing “[t]he substance of the excluded evidence.” 21 Wright & Miller § 5041
(citation modified); see also Polack v. Comm’r, 366 F.3d 608, 612 (8th Cir. 2004) (holding that
“a party must express precisely the substance of the excluded evidence” (citation modified)).
After all, an “appellate court cannot properly review the alleged error unless it knows exactly
what evidence was excluded.” 21 Wright & Miller § 5042. It does not suffice to give “the
general subject matter of the evidence,” United States ex rel. Veal v. DeRobertis, 693 F.2d 642,
648 (7th Cir. 1982), say, by indicating that a witness “would testify as to [h]is version of the
conversations that he had with” other witnesses, United States v. Winkle, 587 F.2d 705, 710 (5th
Cir. 1979). Here, Sherman’s offer must be adequate to allow this court to determine whether the
specific evidence being offered was relevant, not duplicative, and whether its exclusion was
harmless.

Sherman’s offer does not meet that bar. Neither the transcript of the trial nor the record
(or even the briefing) on appeal provides any specificity as to the contents of the pages he sought
to introduce. See 6th Cir. R. 10(b); cf. Hicks v. Floyd Cnty. Bd. of Educ., 99 F. App’x 603, 605–
06 (6th Cir. 2004) (finding no error where a party “neglected to include in the record copies of
the disputed exhibits, with one exception, or even to identify them”). Consequently, we are
unable to determine whether the notebooks made any material fact—for instance, whether
Nos. 24-1470/25-1080 United States v. Sherman Page 9

Dr. Berland was correct that Sherman took inadequate patient histories—more or less likely. It
follows that Sherman has not preserved his relevance objection for our review. Nor, if we were
to assign error to the exclusion, has he given us information sufficient to determine whether the
error was harmful. Accordingly, we cannot say that the district court abused its discretion in
failing to admit the notebook pages into evidence.

IV.

Sherman argues that the district court erred in failing to admit exculpatory portions of a
recorded phone conversation. He invokes the rule of completeness because the government had
already played other portions of the recording for the jury. See Fed. R. Evid. 106.

Whenever one party introduces “all or part of a statement” at trial, Rule 106 allows an
adversary to contemporaneously introduce “any other part—or any other statement—that in
fairness ought to be considered at the same time.” Id. We have read the rule’s “fairness”
language to describe the need “to correct a misleading impression created by the introduction of
part of a writing or conversation” by placing “the admitted portions in proper context.” United
States v. Holden, 557 F.3d 698, 705 (6th Cir. 2009). The rule was amended on December 1,
2023, to permit an adverse party to introduce the completing testimony “over a hearsay
objection.” Fed. R. Evid. 106.1 This amendment abrogates the rule of United States v. Costner,
684 F.2d 370 (6th Cir. 1982), under which “exculpatory hearsay [could] not come in solely on
the basis of completeness,” United States v. Adams, 722 F.3d 788, 826 (6th Cir. 2013) (citation
modified).

The government claims that plain error review applies because Sherman never offered the
rule of completeness as a basis for admission, either when the government admitted the partial
recordings as exhibits or when Sherman later sought to play the relevant portions on the re-cross
of Smith. We also do not see in the transcript where Sherman invoked Rule 106. And
Sherman’s reply brief does not respond to this point. Accordingly, we conclude that Sherman
failed to make a timely objection on Rule 106 grounds and we accept the government’s

1The parties agree that the amended rule governed the disputed testimony in this case. See R. 339, Op. &
Order, PageID 6203 n.12.
Nos. 24-1470/25-1080 United States v. Sherman Page 10

invitation to review for plain error. See Fed. R. Evid. 103(a), (e). But see 21 Wright & Miller
§ 5083 (suggesting that error will never be present when Rule 106 is not contemporaneously
invoked). Sherman seeks to admit portions of a recording in which Smith frets to a confidential
informant about a time that Smith caught an obviously-fake MRI report Bell had produced.
Smith remarks: “Imagine if it w[ere] the doctor that caught [the false MRI].” See Appellant Br.
at 9, 40; R. 276, Trial Tr., PageID 5241–42, 5268. Either Smith or the informant continued that
“he would be ready to get the f[***] on.”2 Appellant Br. at 40. Sherman interprets this
statement to suggest that he did not know that the MRI reports were doctored and that he would
have left the practice if he did. When Sherman sought to play the recording at trial, he described
it both as useful for impeachment purposes and as substantive evidence, admissible as
nonhearsay because it was not being used to prove the truth of the matter asserted.

The trial court eventually allowed Sherman to play the relevant portion of the recording
to impeach Smith’s testimony. Sherman contends, however, that it was error not to admit the
recording as substantive evidence. We need not decide this question, however, because even if
the recording were plainly misleading as presented by the government, Smith has not overcome
the third prong of plain error review by showing an effect on his substantial rights. See United
States v. Olano, 507 U.S. 725, 731–35 (1993). Sherman had the opportunity to cross-examine
Smith on the extent of his knowledge of the doctored MRIs, and the jury heard the controverted
portion of the recording as evidence impeaching Smith’s testimony on Sherman’s knowledge.
Under these circumstances, Sherman has not shown “a reasonable probability” that the failure to
admit this portion of the testimony as substantive evidence “affected the outcome of the trial.”
United States v. Clay, 162 F.4th 757, 766 (6th Cir. 2025) (per curiam) (citation omitted); see also
Olano, 507 U.S. at 734.

2Whether Smith or the informant made this latter statement is unclear from the record. Sherman’s
appellate briefing describes it both ways. See Appellant Br. at 9, 40. Because Sherman has failed to provide the
court with a copy of the recording in question, we are unable to determine who made the second statement. In any
case, neither understanding of the statement saves Sherman’s argument.
Nos. 24-1470/25-1080 United States v. Sherman Page 11

To the extent that Sherman continues to press his non-hearsay rationale for admission,
that argument is unavailing.3 Hearsay is an out-of-court statement “offer[ed] in evidence to
prove the truth of the matter asserted in the statement.” Fed. R. Evid. 801(c). Accordingly,
when a proponent offers a statement to prove that the declarant or a listener had knowledge of
the proposition asserted in the statement, rather than to prove the truth of that proposition, he has
not offered hearsay. See United States v. Churn, 800 F.3d 768, 776 (6th Cir. 2015) (noting that
statement offered to show effect on the listener is not hearsay); United States v. Boyd, 640 F.3d
657, 664 (6th Cir. 2011) (“Statements offered to prove the listener’s knowledge are not
hearsay.”); see also Fed. R. Evid. 803(3) (exception permitting hearsay that shows the
“declarant’s then-existing state of mind (such as motive, intent, or plan)”). In these
circumstances, “[w]hether [the] statements were true or not [is] irrelevant to what the [proponent
is] trying to show by introducing” the statement. Churn, 800 F.3d at 776. But, contrary to
Sherman’s claim, that does not mean that any “[s]tatements offered to show state of mind or
knowledge are admissible” as non-hearsay. Appellant Br. at 41. For instance, when the
statement is itself the assertion of an individual’s knowledge or the inference thereof flows
directly from the assertion, a party who offers that statement to show knowledge is offering
hearsay. After all, in that context, whether the statement is true or not is centrally relevant to its
use by the proponent. That’s the case here. The assertion that “[Sherman] would be ready to get
the f[] on” “if it was [Sherman] that caught [the false MRIs],” R. 276, Trial Tr., PageID
5241, 5244, was offered as stating “Dr. Sherman’s lack of knowledge,” Appellant Br. at 41. It
makes all the difference whether Sherman would actually “get the f[] on” if or when he
caught a false MRI. Accordingly, the statement was hearsay and was inadmissible absent some

3In places, Dr. Sherman suggests that he should have had the opportunity to play the recording simply
because the entirety of the recording was admitted into evidence on December 4, 2023. See Appellant Br. at 39–40;
see generally 1 David H. Kaye et al., McCormick on Evidence § 54 (9th ed. 2025) (where “testimony is received
without objection, the testimony becomes part of the evidence in the case and is usable as proof to the extent of its
rational persuasive power”). This question turns on whether the entire recording or only portions thereof were
admitted as Exhibits 99A and 99B. On reviewing the exhibits, we conclude that the controverted portion of the
recordings was not admitted by the government. And to the extent that Sherman argues that the court previously
admitted the entire recording when it admitted “Exhibits 82 through 102” on November 20, 2023, see R. 219, Trial
Tr., PageID 1410, the transcript index shows the familiar Exhibit 99A admitted on that day, see id. at 1359; see also
id. at 1530 (permitting Ex. 99A to be played for the jury without objection).
Nos. 24-1470/25-1080 United States v. Sherman Page 12

exception to Rule 802. Sherman does not argue that any such exception applies. Thus, there is
no error.

V.

Sherman argues that the district court erred when it permitted the government to use a
series of Rule 1006 summary charts in presenting its case to the jury. As before, this decision is
reviewed for an abuse of discretion. United States v. Williams, 952 F.2d 1504, 1519 (6th Cir.
1991). In United States v. Bray, we identified five prerequisites for the admission of summary
charts pursuant to Rule 1006. 139 F.3d 1104, 1109–10 (6th Cir. 1998). As reiterated in later
cases,

(1) the underlying documents must be so voluminous that they cannot be
conveniently examined in court, (2) the proponent of the summary must have
made the documents available for examination or copying at a reasonable time
and place, (3) the underlying documents must be admissible in evidence, (4) the
summary must be accurate and nonprejudicial, and (5) the summary must be
properly introduced through the testimony of a witness who supervised its
preparation.

United States v. Jamieson, 427 F.3d 394, 409 (6th Cir. 2005) (citation modified).

Sherman first challenges the application of the second prong, that “the proponent of the
summary must have made the [underlying] documents available for examination or copying at a
reasonable time and place.” Id. Sherman represents that the government “did not provide
defense counsel adequate notice or access to the precise materials underlying the summary
charts” and did not produce the summaries themselves until “mere days before trial.” Appellant
Br. at 51.

At issue is a chart of the total number of prescriptions and pills issued by Sherman to
patients at Tranquility Wellness Center. The government’s witness created this summary chart
by cross-referencing data from the Michigan Automated Prescription System (MAPS), a
comprehensive database tracking all prescriptions of Schedule II–V drugs and data from
Tranquility Wellness Center’s patient records. The witness first filtered the MAPS data by
Sherman’s DEA number before again filtering it to include only recipients listed in the patient
records. Sherman does not appear to dispute that he was provided access to the underlying
Nos. 24-1470/25-1080 United States v. Sherman Page 13

MAPS and patient record data years before trial. Instead, the precise materials he seeks are the
“culled MAPS report”—the “third list of patients [the witness] believe[d] were seen at
Tranquility.” R. 274, Trial Tr., PageID 4860–63. But this hypothetical intermediate document,
if ever even created by the witness, is not one of the “underlying” documents being summarized
in the chart. Fed. R. Evid. 1006(b). Therefore, it is not a document that the government had to
produce as a condition of admitting the charts. And to the extent that Sherman objects to the late
availability of the charts themselves, Rule 1006 does not obligate the government to make those
available before use either. See id.; Jamieson, 427 F.3d at 409–10 (stating that “Rule 1006 does
not require, however, that the government provide [the defendant] with a copy of the actual
summary”).

Sherman makes a glancing argument under Bray’s prong four, which requires that the
“summary document ‘must be accurate and nonprejudicial.’” 139 F.3d at 1110 (citation
omitted). He objects that the charts’ representation of Sherman’s yearly income included
$243,000 from an IRA distribution, which could have misled the jury into thinking that he
earned excessive (and, therefore, likely illegal) income from the medical practice. But neither of
the complained-of exhibits (Nos. 166 and 170) appear to have been admitted into evidence or
shown to the jury. And to the extent that he meant to object to Exhibit 174, which seems to have
contained the same income figures, his cross-examination of the witness on this point was
adequate to clear up any potential confusion attendant to the government’s accurate summary
chart of Sherman’s tax returns. The district court did not abuse its discretion.

VI.

Sherman next objects to Special Agent Napolitano’s and IRS Agent Klein’s testimony as
impermissible lay testimony. As elsewhere, we review the district court’s contemporaneously
challenged evidentiary ruling for an abuse of discretion, reversing only “where the district
court’s erroneous admission of evidence affects a substantial right of the party.” United States v.
White, 492 F.3d 380, 398 (6th Cir. 2007). Lay witnesses are permitted to render opinions
“(a) rationally based on the witness’s perception; (b) helpful to clearly understanding the
witness’s testimony or to determining a fact in issue; and (c) not based on scientific, technical, or
other specialized knowledge within the scope of Rule 702.” United States v. Kilpatrick, 798
Nos. 24-1470/25-1080 United States v. Sherman Page 14

F.3d 365, 379 (6th Cir. 2015) (quoting Fed. R. Evid. 701). For instance, “[w]hen an agent gives
opinions that rely on the agent’s specialized training as a law enforcement officer, that testimony
is expert testimony, and the agent must be qualified under Rule 702,” but “when an agent relies
on his or her personal knowledge of a particular investigation,” the agent renders an admissible
lay opinion. Id. at 384.

A.

Sherman first challenges the testimony of Agent Napolitano. In the challenged portions
of the testimony, Napolitano described the MAPS system, explaining that MAPS tracks the
prescription of Schedule II–V drugs within the state. He explained that the MAPS system uses
the DEA’s drug schedule, which the DEA bases on the drugs’ “potential for addiction, abuse,
and diversion.” R. 274, Trial Tr., PageID 4835. And he explained that “oxycodone and
oxymorphone” are Schedule II narcotics. Id. at 4834–35. The court then asked Napolitano to
define “diversion.” Id. at 4835. He did so: “The illegal sale and distribution of narcotic
prescriptions.” Id. Defense counsel raised no objection. See id. Accordingly, we review the
admission of this testimony for plain error. United States v. DeJohn, 368 F.3d 533, 540 (6th Cir.
2004).

Napolitano’s testimony permissibly “relie[d] on his . . . personal knowledge of
[Sherman’s] investigation.” Kilpatrick, 798 F.3d at 384. He explained in basic terms the tools
he used to conduct the investigation—the MAPS system, and the Controlled Substance Act’s
“schedule” scheme. And he defined the subject matter he investigates in the course of his job
duties—“diversion.” He then described how he conducted his investigation using the MAPS
data, Sherman’s prescriber ID number, and Tranquility’s electronic medical records; and he
described a summary chart he prepared showing how many Schedule II drug prescriptions (and
pills) Sherman had issued during a particular time period. None of this testimony offered any
opinion or conclusion on whether Sherman had prescribed these drugs illegally. So there is no
risk that, as Sherman claims, the jurors would “credit [Napolitano’s] purported expertise on what
‘real’ prescribing . . . looks like.” Reply Br. at 10. We see no error with admitting this
testimony, plain or otherwise.
Nos. 24-1470/25-1080 United States v. Sherman Page 15

Agent Napolitano also testified that the three drugs that Sherman most commonly
prescribed at Tranquility—oxycodone, oxycodone with acetaminophen, and oxymorphone—
were the three “most commonly diverted prescriptions.” R. 274, Trial Tr., PageID 4843.
Defense counsel objected. At a sidebar, the government argued that Napolitano, with “five years
of experience doing diversion cases,” could testify to what he “most commonly see[s] diverted in
his job duties.” Id. at 4844. The court agreed. Asked again what medications “are more
commonly sold on the street,” “in [his] work experience,” Napolitano then repeated the same
testimony concerning oxycodone and oxycodone with acetaminophen. Id. at 4847.

We need not decide whether admitting this testimony was error because any error was
harmless. We may not reverse on the basis of an evidentiary error where we have “‘fair
assurance’ that the verdict was not ‘substantially swayed’ by the error.” United States v. Kettles,
970 F.3d 637, 643 (6th Cir. 2020) (emphasis omitted) (quoting Kotteakos v. United States, 328
U.S. 750, 765 (1946)). “[I]n criminal cases, it is for the ‘Government to explain why an error
should not upset the trial court’s determination.’” Id. (quoting Shinseki v. Sanders, 556 U.S. 396,
410 (2009)). The United States has done so here. The testimony that the three drugs Sherman
most commonly prescribed were also the most commonly diverted prescriptions was relevant to
the question whether Sherman knowingly issued unauthorized prescriptions, but that evidence
was a small part of an overwhelming mass of circumstantial evidence offered by the government.
See supra Part II. What’s more, Koczenasz testified to these same facts when presented with
Napolitano’s summary chart without objection from Sherman. See R. 276, Trial Tr., PageID
5298. And Darwin Smith, the owner of a pharmacy, testified that 30 milligram oxycodone pills
were the most commonly filled prescriptions by those diverting drugs to street sale, again
without objection by Sherman. The admission of inadmissible evidence is not prejudicial where
“substantially equivalent evidence of the same facts had otherwise been admitted.” United States
v. Robinson, 389 F.3d 582, 593 (6th Cir. 2004). Given that testimony and the “overwhelming
evidence of guilt beyond the erroneously admitted testimony,” United States v. Baldwin, 418
F.3d 575, 582 (6th Cir. 2005), we conclude that any error was harmless.
Nos. 24-1470/25-1080 United States v. Sherman Page 16

B.

Sherman next challenges Agent Klein’s testimony. In the challenged portions of Klein’s
testimony, she explained charts she had prepared summarizing Sherman’s financial history on
the basis of his financial records. But a witness’s “summar[y]” of “a large amount of data” may
be a task that “require[s] only everyday reasoning rather than specialized knowledge.” United
States v. Faulkenberry, 614 F.3d 573, 588 (6th Cir. 2010). In places, Sherman suggests that
Klein’s testimony must have fallen into the “expert” category because if it were merely “basic
arithmetic” permissible by a lay witness, it would not have required summary charts or witness
explanation. Appellant Br. at 47. That argument is unpersuasive. As with Rule 1006, a witness
can describe materials whose volume or complexity makes them inconvenient for the jury to
examine unaided, so long as every step of that description or summary requires nothing more
than ordinary reasoning. Cf. Kilpatrick, 798 F.3d at 383 (concluding that law enforcement
officers may “summarize voluminous writings or recordings”); Fed. R. Evid. 1006(a). Finally,
Sherman accuses Agent Klein of implying that Sherman “amended his [tax] filings to conceal ill-
gotten gains.” Appellant Br. at 48. But Sherman does not cite any particular testimony to this
effect, and our review of the record locates none. And any prejudice was adequately addressed
by defense counsel’s cross-examination on the issue. In sum, the district court did not err in
admitting the testimony of Agents Napolitano and Klein as lay opinion testimony.

VII.

In his final stand-alone argument, Sherman alleges that the district court was
impermissibly biased against him. At least two sources of law govern judicial bias. The Due
Process Clause, the “outer boundar[y] of judicial disqualification[],” Caperton v. A.T. Massey
Coal Co., 556 U.S. 868, 889 (2009), requires recusal when “the probability of actual bias on the
part of the judge or decisionmaker is too high to be constitutionally tolerable,” Rippo v. Baker,
580 U.S. 285, 287 (2017) (per curiam) (citation omitted). A federal statute also requires a “judge
of the United States” to “disqualify himself in any proceeding in which his impartiality might
reasonably be questioned” and, among other circumstances, where “he has a personal bias or
prejudice concerning a party.” 28 U.S.C. § 455 (a), (b)(1).
Nos. 24-1470/25-1080 United States v. Sherman Page 17

Although Sherman’s brief invokes due process in framing this claim, much of the
caselaw he cites concerns § 455. See id. at 55–56 (citing, e.g., United States v. Liggins, 76 F.4th
500 (6th Cir. 2023); Liteky v. United States, 510 U.S. 540 (1994)). To be fair, our cases have not
always been clear about what law they apply. See, e.g., McMillan v. Castro, 405 F.3d 405, 409–
10 (6th Cir. 2005); United States v. Hickman, 592 F.2d 931, 932–34 (6th Cir. 1979). But the
district court’s conduct is unobjectionable even under § 455’s more exacting standard. So we
apply that law here.

Where a litigant objected below, we review a district judge’s “conduct during a trial for
an abuse of discretion.” McMillan, 405 F.3d at 409; accord Liggins, 76 F.4th at 505. But where
a litigant has not contemporaneously objected to the trial court’s conduct, we review for plain
error. United States v. Hynes, 467 F.3d 951, 957–58 (6th Cir. 2006). And though we do not
apply that plain error standard “if raising a contemporaneous objection ‘would have exacerbated
the situation,’” id. at 958 (quoting United States v. Sims, 46 F. App’x 807, 814 (6th Cir. 2002)),
Sherman does not explain how making an objection would have made things worse. He does not
appear to have raised these objections orally at trial or to have pursued them in his motion for
new trial. Accordingly, we review for plain error.

We have said that the presence of “outright bias or belittling of counsel is ordinarily
reversible error,” as is a trial “so infected with the appearance of partiality that the trial court’s
interjections must inevitably have left the jury improperly influenced.” McMillan, 405 F.3d at
409–10 (citation modified). The same goes for conduct that occurs outside the jury’s presence,
at least where that conduct is “so extreme as to display clear inability to render fair judgment.”
Liggins, 76 F.4th at 506 (quoting Liteky, 510 U.S. at 551). But “expressions of impatience,
dissatisfaction, annoyance, and even anger, that are within the bounds of what imperfect men and
women, even after having been confirmed as federal judges, sometimes display” do not
constitute hostility for these purposes. Liteky, 510 U.S. at 555–56. And “bias” does not include
views formed about a litigant’s case during the proceedings “unless they display a deep-seated
favoritism or antagonism that would make fair judgment impossible.” Id. at 555.

Sherman alleges five statements or actions which show judicial hostility or bias. None
does.
Nos. 24-1470/25-1080 United States v. Sherman Page 18

A.

First, Sherman takes issue with a remark the district court made to a prospective juror
during voir dire. The juror was a former IRS employee who had previously testified as an expert
witness before a grand jury. This colloquy followed.

The Court: Do you believe there must be some merit to the charges or [the
defendant] would not be on trial?
Prospective Juror 7: I guess it depends on what the definition of merit is, but
there’s a reason there’s a trial here.
The Court: Yeah, there’s definitely a reason. We didn’t just—this isn’t fake. It’s
not like that Netflix—if anybody saw that, that’s not happening here.
Prospective Juror 7: I just want to make sure we’re not making it up.
The Court: No. Okay. No, this is real. We’re not making it up. And I
understand that you’ve testified before a grand jur[y] and so on. But can you—
Dr. Sherman starts with a clean slate. Do you understand that?
Prospective Juror 7: Yes, I do.
The Court: Because we’re now at a different phase. We’re not at the indictment
phase. We’re at a clean slate starting a trial. And is that something that you—
Prospective Juror 7: I completely understand that, yes.
The Court: Okay. Good.

R. 345, Trial Tr., PageID 6369–70. Defense counsel did not comment on or object to this
exchange. But defense counsel later used a preemptory strike on the juror and he was excused.

When the court said that “there’s definitely a reason” the trial was occurring, that
statement coupled with the court’s reference to Netflix, is most naturally read as an assurance
that the trial wasn’t “fake.”4 The court affirmed that the proceedings were real and that Sherman
had been validly indicted. Then the court immediately sought the juror’s understanding that,
post-indictment, Sherman had “a clean slate” at this “different phase.” No reasonable listener
would have understood the court to have said anything contrary to a defendant’s presumption of
innocence or to project bias against Sherman or his counsel.

4The government suggests that the court was most likely alluding to a television series, Jury Duty, which
depicted a fake trial in which all but one juror was an actor. See Jury Duty (Amazon Studios 2023). That series
premiered on April 7, 2023, approximately seven months before the start of trial, though it ran on Amazon, not
Netflix.
Nos. 24-1470/25-1080 United States v. Sherman Page 19

B.

Sherman next objects to remarks made during a sidebar conference, out of the jury’s
presence. During the testimony of the government’s expert, Dr. Berland, defense counsel
indicated his interest in cross-examining Berland on the standard he had applied in a prior case
on the theory that Berland was “holding Dr. Sherman to a much higher standard.” R. 267, Trial
Tr., PageID 3364. This exchange followed.

The Court: Ms. Furtaw?
Ms. Furtaw [prosecutor]: Yes, Your Honor. If I could just address. Mr.
Chapman [defense counsel] is sort of doing what he does best, which is plucking
one small sentence out of—but be that as it may—
The Court: That’s his job.
Ms. Furtaw: That’s his job.
The Court: That’s all he’s got, so he’s got to go with it.
...
The Court: I know. But what is—that’s fine. But what is your point?
Everybody’s just grasping right now.
...
The Court: Okay. And why is Jankowski not relevant in this case[]? Focus.
Ms. Furtaw: Yes, Your Honor. I apologize.
The Court: That’s okay.
Ms. Furtaw: It’s not relevant in this case because Dr. Jankowski was a different
set of circumstances. . . .
The Court: That’s okay. And Mr. Chapman, I saw your reaction when I said—
when she said you’re grasping at straws or whatever it was. And I said, well, that
is your job. Your job is to pick apart every little straw you can find. And you’re
doing that job. So I’m not faulting you for that.

Id. at 3364–66. Defense counsel did not object to the district court’s statement.

Sherman reads the district court’s statement that all defense counsel had “to go with” was
“grasping at straws” as expressing its view that his whole defense was insubstantial, but that is a
strained interpretation. In context, the court’s remark refers only to defense counsel’s objection
to Berland’s testimony; and it was the district court’s job to form an opinion on that objection.
Nos. 24-1470/25-1080 United States v. Sherman Page 20

A district court does not display bias by overruling an objection or by characterizing it as weak.
And that is especially so when outside the jury’s presence. What’s more, the court explained to
the government that it is defense counsel’s job to expose gaps in the government’s case. And the
court did not reserve its critique for defense counsel, instead the court simultaneously faulted the
prosecutor for being unfocused and similarly “grasping.” Cf. McMillan, 405 F.3d at 410 (noting
that remarks critical of both parties outside the presence of the jury in response to counsel’s
conduct are eligible for harmless error review). These remarks in no way rise to the level of “a
deep-seated favoritism or antagonism that would make fair judgment impossible.” Liteky, 510
U.S. at 555.

C.

Third, Sherman takes issue with remarks the court made during oral argument on his
motion for a judgment of acquittal.

Mr. Chapman [defense counsel]: And I’ll also just say that, your Honor,
the notion that federal law enforcement can send a patient into a doctor’s office
and complain of significant pain and show subjective and objective findings of
significant pain through falsified MRIs as well as falsified MAPS reports, the
notion that a physician could be subject to that sort of treatment by the federal
government or by these folks working at Tranquility is just plain offensive and
causes injury to the medical system as a whole.
Physicians are not in a position, and nor do we want them in a position, to
have to be police officers investigating the legitimacy of a prescription. They
should have a truth bias and be caretakers and not being responsible for knocking
down the false statements or investigating the false statements of patients for law
enforcement.
The Court: You know, I love this story. I love what you’re saying. You
know, it’s a heart—you know, it’s pulling at the heart strings and all, but here’s
the problem with it, which is that this particular type of medical practice is
prescribing highly addictive, death-causing opioid prescriptions, that, in addition
to being highly addictive, also have a street value, also have a known history of
being diverted into the streets and killing people.
So it’s not an everyday medical practice where a mother or father brings a
child for a strep test, and oh, you’ve got to be on the lookout, there might be—you
do have to look for Munchausen’s, but setting that aside[, l]et’s look down the
throat. Oh, I better look three times because I might get caught for diagnosing
strep throat. That’s not this case. So that argument is not effective.
Nos. 24-1470/25-1080 United States v. Sherman Page 21

I want every doctor in this country to be on the lookout for addiction
[that’s] causing more harm than good. So just in terms of the policy argument
you’re making, I don’t think it’s related to the facts of this case.
Mr. Chapman: Understood, your Honor.

R. 276, Trial Tr., PageID 5401–02. Sherman did not object to these statements and continued
with his argument on other points.

Sherman compares this case to United States v. Liggins, claiming that, in that case, we
reversed a district judge’s denial of a motion to recuse after the court told the defendant that he
“looks like a criminal to me” and highlighted that “[h]e’s alleged to be dealing heroin, which
addicts, hurts and kills people.” 76 F.4th at 503, 506–07. But only half of that claim fairly
represents our holding in Liggins. In Liggins, we held that the district court had crossed the line
by saying that the defendant “looks like a criminal.” Id. But the district court here said nothing
remotely like that. And the court’s remarks about the harm caused by the heroin trade did not
factor in our analysis in Liggins.

Nor do the district court’s remarks prejudge Sherman’s guilt. The court instead
responded to defense counsel’s argument by describing the risks attendant to opioid prescriptions
by any doctor and then explained why, in the court’s view, those risks justify an expectation that
doctors remain vigilant for patients who fake symptoms or medical history to receive an opioid
prescription. Those statements do not demonstrate a bias against Sherman.

D.

Fourth, Sherman objects to remarks the court made during his sentencing hearing. For
context, Sherman had previously worked as a doctor in the Macomb County, Michigan jail
system. See generally Preston v. County of Macomb, 2019 WL 9899918, at *1 (E.D. Mich. Feb.
19, 2019). During that time, Sherman, among others, was sued by a detainee who had given
birth to a child on the floor of the jail. See id. The same district judge presided over that case,
ultimately dismissing the suit as against Sherman for failure to state a claim. See id. at *9–10. It
appears that some individuals who wrote letters on Sherman’s behalf before his sentencing
Nos. 24-1470/25-1080 United States v. Sherman Page 22

hearing in this case invoked his work in the jail system as evidence of his good character. After
discussing Sherman’s violation of his Hippocratic oath, the district court continued:

The Court: Your letter writers drew my attention to your time at Macomb
County Jail. I was aware of that, of course, because I presided over the case
where you were sued for deliberate indifference in that jailhouse because of the
birth of a baby by a detainee, Jessica Preston, on the jail floor.
Your letter writers didn’t know about that. They didn’t have knowledge
of those accusations. I ultimately dismissed you from that suit. And this case has
nothing to do with that case. But it gave me some insight into what you had told
your letter writers about your time at Macomb County. None of them mentioned
that tragic and difficult instance where a woman gave birth to her child . . . in jail.

R. 325, Sentencing Tr., PageID 5980. The district court went on to explain that “the letters that
have the greatest impact on me are the letters where the individuals acknowledge the seriousness
of the crime and say yet and still, Dr. Sherman deserves the Court’s grace.” Id. Instead, “these
letters didn’t say anything [of the sort].” Id. “They painted a picture of Dr. Sherman as the
utmost ethical, the highest achiever in the profession. And they didn’t acknowledge [his
wrongdoing].” Id. Defense counsel did not object to or comment on the court’s statements.

The district court later sentenced Sherman to a mid-range term of 144 months’
imprisonment. The court asked whether defense counsel had “any objection to the sentence that
has just been pronounced that you’ve not previously set forth?” Id. at 5986. Counsel responded,
“Nothing beyond what we’ve spoken about today, Your Honor.” Id. at 5987.

We are unconvinced that the court’s statements evidence impermissible “judicial fact-
finding” or “personal disdain.” Appellant Br. at 65, 66. The Supreme Court has said that
“opinions held by judges as a result of what they learned in earlier proceedings” are “not subject
to deprecatory characterization as ‘bias’ or ‘prejudice.’” Liteky, 510 U.S. at 551. Here, the
district court invoked the defendant’s connection with the prior civil suit to highlight the limited
usefulness of letters that reflected a selective knowledge or focus. The court was clear that other
than the “insight into what you had told your letter writers,” “this case has nothing to do with
that case.” Id. at 5980. Consequently, a reasonable observer would not conclude that the district
court’s knowledge of the allegations in the prior civil case improperly influenced the court’s
Nos. 24-1470/25-1080 United States v. Sherman Page 23

view of the defendant’s criminal culpability beyond permissibly blunting the mitigating impact
of his letters of support.

E.

Finally, Sherman argues that the ten-month gap between the completion of briefing on his
motion for new trial and the district court’s resolution of that motion shows judicial bias.
Compare R. 302, Reply to Resp. (filed on Mar. 22, 2024), with R. 339, Op. & Order (filed on
Jan. 12, 2025). We are unconvinced. District courts are afforded broad discretion to manage
their dockets. Cf. Am. Civil Liberties Union of Ky. v. McCreary County., 607 F.3d 439, 451 (6th
Cir. 2010). A ten-month delay in ruling on a complex motion, while perhaps not ideal, is
sometimes necessary and not unusual. And we are unwilling to fault the district court for taking
its time with a thorough, fact-intensive 68-page opinion addressing the product of a five-week
trial.

---

When it comes to finding judicial bias:

[a]ll of [Sherman’s] grounds are inadequate under the principles we have
described above: They consist of judicial rulings, routine trial administration
efforts, and ordinary admonishments . . . to counsel . . . . All occurred in the
course of judicial proceedings, and neither (1) relied upon knowledge acquired
outside such proceedings nor (2) displayed deep-seated and unequivocal
antagonism that would render fair judgment impossible.

Liteky, 510 U.S. at 556. Sherman’s claim of judicial bias fails.

VIII.

Sherman argues that though the errors alleged here might be “considered harmless when
viewed in isolation of each other,” they require reversal “when considered cumulatively.”
Campbell v. United States, 364 F.3d 727, 736 (6th Cir. 2004). In denying Sherman’s motion for
a new trial, the district court dismissed this argument because it concluded that no errors were
present and thus there were no errors to cumulate.
Nos. 24-1470/25-1080 United States v. Sherman Page 24

But we rested our analysis of some issues on the absence of reversible error. Without
deciding whether there was error, we concluded that any error in admitting some of Napolitano’s
lay testimony was harmless. See Part VI.A. And in Part IV above, we concluded that no plain
error was present because, even assuming a violation of the rule of completeness, no substantial
prejudice flowed from that decision.

Even assuming that both of these decisions were error, and even considering them
cumulatively, we conclude that their combined effect would not undermine confidence in the
jury’s verdict. These two pieces of either admitted or excluded testimony, neither more than two
sentences in length, do not imperil the outcome of this five-week trial. As before, the
“overwhelming evidence of guilt beyond the erroneously admitted testimony,” Baldwin, 418
F.3d at 582, assures us that Sherman was not “deprived . . . of a fair trial,” Campbell, 364 F.3d at
736 (citation omitted).

IX.

Finally, Sherman appeals the denial of his motion for new trial, incorporating by
reference his arguments on the issues above, save those that relate to the sufficiency of the
evidence. We review the denial of a motion for new trial for an abuse of discretion, granting a
new trial only where the “interest of justice” so requires. United States v. Munoz, 605 F.3d 359,
366, 373 (6th Cir. 2010) (citation omitted). Justice will require a new trial where “substantial
legal error has occurred.” Id. at 373.

For the reasons given above, no substantial error occurred here. Accordingly, the
interests of justice do not require a retrial.

---

We AFFIRM.