United States v. Parasmo, No. 23-6555 (2d Cir. May 19, 2026) (Sullivan, joined by Kearse, Robinson dissenting)
The Second Circuit affirmed Frank Parasmo’s conviction on thirty-two counts of unlawfully distributing controlled substances under 21 U.S.C. § 841, despite acknowledging — as it had to after Ruan v. United States, 597 U.S. 450 (2022) — that the district court’s good-faith instruction was wrong. The charge directed the jury to ask whether Parasmo, a licensed New York physician, “acted reasonably” and “in accordance with what he reasonably believed to be the standard of medical practice.” Slip op. at 9. That objective gloss does not survive Ruan‘s holding that § 841 requires the government to prove a defendant’s subjective knowledge that he was acting in an unauthorized manner.
Yet in an opinion by Judge Sullivan, the panel held the error harmless beyond a reasonable doubt under Neder v. United States, 527 U.S. 1 (1999) — concluding it was beyond doubt that no rational, properly instructed jury would have acquitted on this record. Judge Robinson dissented, sharply. Her dissent — and what it says about applying harmless-error review to a contested element of subjective intent — is the focus here.
Relevant Facts
Between 2014 and 2015, Parasmo prescribed large quantities of oxycodone and hydrocodone to at least twenty patients. The government offered strong evidence of impropriety: Parasmo kept prescribing opioids to patients who repeatedly tested positive for illicit substances, repeatedly tested negative for the drugs he prescribed (suggesting diversion), engaged in doctor-shopping, and ran out of pills early. Other physicians, pharmacies, insurers, and the New York State Medical Society had all flagged him for overprescribing. Op. at 3–4. State authorities warned Parasmo he was in the top 10% of opioid prescribers in New York; he admitted the letter “made [him] nervous” but kept prescribing. Id. at 18–19.
The defense told a different story. Parasmo kept meticulous notes, conducted physical examinations, ordered drug screens, and recorded the results. He referred patients to specialists — pain management, neurosurgeons, psychiatrists, addiction counselors. He attempted to wean patients off controlled substances and prescribed non-narcotic alternatives.
Many patients had genuine and severe pain: a traumatic-brain-injury survivor; a woman with degenerative disk disease so severe a neurosurgeon recommended three surgeries; a construction worker with bullet fragments in his neck. Dissent at 7. None of the hallmarks of a pill mill existed: no cash-only payments, no “runners,” no fake patients, no lines of patients waiting outside, no kickbacks. Dissent at 4–5.
The district court, instructing the jury before Ruan was decided, charged that good faith required “acting reasonably and with the honest exercise of best professional judgment . . . that is, the defendant acted in accordance with what he reasonably believed to be the standard of medical practice generally recognized and accepted in the State of New York.” Op. at 9. The government drove the point home in summation, telling the jury “that this is an objective standard” and that Parasmo’s belief “has to be reasonable, and is not subjective.” Dissent at 10. The jury convicted on thirty-two counts and acquitted on three.
The Panel’s Ruling
On appeal, Parasmo argued the instructional error was not harmless because his subjective intent — the only contested element — was hotly disputed at trial. The majority disagreed.
Cataloguing the government’s evidence patient by patient, the majority found it “overwhelmingly established that Parasmo subjectively knew the prescriptions were issued without a legitimate medical purpose.” Op. at 27–28. The picture it drew was of a doctor who increased dosages after noting his intent to “wean” patients; kept prescribing oxycodone after a patient’s sister called to report her brother was selling the pills; and kept writing for patients whose toxicology screens repeatedly came back negative for the prescribed drug and positive for cocaine, heroin, or marijuana. Op. at 15–25.
The majority distinguished United States v. Pabisz, 936 F.2d 80 (2d Cir. 1991), and United States v. Tureseo, 566 F.3d 77 (2d Cir. 2009), the cases on which Parasmo principally relied. Pabisz was different because that defendant testified to his subjective beliefs, whereas Parasmo did not. Slip op. at 27. Tureseo was different because the evidence of intent there was “thin.” Id. Out-of-circuit decisions vacating convictions for the same instructional error — United States v. Duldulao, 87 F.4th 1239 (11th Cir. 2023), and United States v. Kahn, 58 F.4th 1308 (10th Cir. 2023) — were “readily distinguishable” because the government’s evidence there was weaker. Op. at 28 n.2.
The Dissent
For our purposes, Judge Robinson’s dissent is the heart of the case. She would not have held the Ruan error harmless and framed the question in constitutional terms: when a mens rea element is genuinely in dispute, an appellate court that pronounces the jury would necessarily have found it anyway is doing the jury’s job. “Where an element of an offense is contested at trial, as it was here, the Constitution requires that the issue be put before a jury — not an appellate court.” Dissent at 3 (quoting Kahn, 58 F.4th at 1319).
Robinson reads Neder narrowly and takes its demanding form of review seriously. Neder held that an instructional error omitting an element can be harmless — but only where the omitted “element was uncontested and supported by overwhelming evidence.” 527 U.S. at 17. The standard is exacting: the reviewing court must “conclude beyond a reasonable doubt that the jury verdict would have been the same absent the error.” Dissent at 3 (quoting Neder, 527 U.S. at 19). The government bears that burden. Dissent at 3 (citing Gutierrez v. McGinnis, 389 F.3d 300, 303 (2d Cir. 2004)).
The beyond-a-reasonable-doubt standard means that evidence must “all flow in one direction” for an error to be harmless. Tureseo, 566 F.3d at 86; Dissent at 4. Any genuine counter-current — any record evidence from which a rational, properly instructed jury could acquit — defeats harmlessness, because the appellate court cannot then be sure beyond a reasonable doubt the jury would have convicted.
The dissent refuses to let the majority’s selective recitation pass. Robinson walks through the same patients the majority did and shows the other side of the ledger. Frankie Campanelli — yes, her prescriptions escalated, but Parasmo also documented attempts to wean her, ordered decompression therapy (“if it does not work detox”), referred her to pain management, and noted that her mother had taken over controlling her medications. Dissent at 6. Summer Ferro — Parasmo cut her prescription in half when she tested positive for cocaine, told her he could not continue prescribing controlled substances, and referred her to a psychiatrist, gynecologist, gastroenterologist, and pain management specialist. Dissent at 6–7. John Lettenberger had survived a catastrophic car accident; Maria Scalcione had degenerative disk disease requiring three surgeries; Maurice Milano had bullet fragments in his spine. Dissent at 7. These were real patients with real pain, and Parasmo’s responses — referrals, alternative therapies, attempts to wean — were “all behaviors suggestive of a good faith effort to help his patients.” Dissent at 5.
Robinson is unsparing on the Pabisz distinction. The majority’s point — that Parasmo, unlike Pabisz, did not testify to his own subjective beliefs — both inverts the burden of proof (the government must prove guilty intent, not the defendant good faith) and “burdens Parasmo’s Fifth Amendment right not to testify.” Dissent at 11. She is equally direct on the out-of-circuit cases. Duldulao vacated even though the practice there was “a classic pill mill” with cash-only payments, falsified records, untrained staff writing prescriptions, and patients shooting up in the parking lot — facts far more incriminating than here. Dissent at 15 n.3. Kahn focused not on weighing evidence but on the constitutional point: the defendant’s intent “was in dispute throughout his trial,” 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 jury-trial guarantee.” Dissent at 14–15 (quoting Sullivan v. Louisiana, 508 U.S. 275, 279 (1993)).
Robinson flags what the majority does not: the government in summation told the jurors that the standard was objective and that whether Parasmo “thought the prescription was okay” did not matter. Dissent at 10. Pabisz held that an erroneous instruction paired with a prosecutor’s repeated reinforcement of the error undermines “the fundamental fairness of the trial.” 936 F.2d at 83. That happened here.
She closes with the fact that, even under the erroneous instruction, the jury acquitted Parasmo on three counts — hardly the mark of a “slam dunk” case. Dissent at 16.
Practitioner’s Notes
This is mostly a lament, given the outcome.
First, Parasmo shows how far harmless-error review has drifted from Neder. Neder was careful: an omitted element was deemed harmless because it was “uncontested and supported by overwhelming evidence.” 527 U.S. at 17. The omitted element there was the materiality of false statements in a tax-fraud prosecution — and the defendant never contested materiality, never put it in issue, never asked the jury to find for him on it. That’s what made the harmlessness inquiry constitutionally tolerable: the appellate court was not stepping into a factual dispute the parties had joined; it was completing a finding no one had asked the jury to make.
Here, by contrast, subjective intent was the entire ground on which the case was fought. An appellate court that announces the jury “would have” found that contested element anyway is making a finding the jury was never asked to make. That’s a Sixth Amendment problem. As Kahn put it, hypothesizing a guilty verdict that was never rendered — however inescapable the supporting findings appear — violates the jury-trial guarantee. Sullivan v. Louisiana, 508 U.S. at 279. The Parasmo majority does not address this prong of Neder at all. It treats “overwhelming evidence” as enough.
Second, even on its own terms, Neder‘s standard is one the majority does not apply. The reviewing court must conclude beyond a reasonable doubt that the verdict would have been the same. Neder, 527 U.S. at 19. That is the criminal-trial standard of proof, imported into appellate review, and the government bears the burden of meeting it. Gutierrez, 389 F.3d at 303.
This is not sufficiency review — not whether a rational jury could have convicted, but whether no rational, properly instructed jury could have acquitted. The difference is the difference between “some evidence supports conviction” and “no evidence at all supports acquittal.” Any meaningful body of evidence from which a properly instructed jury could find for the defendant on the contested element defeats harmlessness.
The majority does not take this seriously. It catalogues the government’s evidence in granular detail, finds it “overwhelming,” and stops. When the dissent identifies a substantial body of countervailing evidence — referrals to specialists, attempts to wean, documented physical examinations, meticulous record-keeping, no pill-mill indicia, an acquittal on three counts — the majority dismisses the defense view as “a highly selective view of the record.” Op. at 21.
But the question is not whether the defense view was the better one. It is whether the government has proved beyond a reasonable doubt that the jury, properly instructed, would necessarily have rejected it. The credible counter-narrative recounted by Judge Robinson means the government has not.
Practice Points: Practitioners confronted with the argument that an instructional error omitting or misstating an offense element is harmless (whether on a motion for new trial or on appeal) should insist, as Judge Robinson’s dissent does, on a strict application of Neder. Neder’s holding was limited: “[W]here a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error, the erroneous instruction is properly found to be harmless.” 527 U.S. at 17 (emphasis added). Although the majority doesn’t acknowledge that standard here, the Circuit has cited and applied it in prior published opinions. E.g., United States v. Peña, 58 F.4th 613, 622 (2d Cir. 2023). Use the reasoning of Judge Robinson’s dissent to urge that course.