                        RECOMMENDED FOR FULL-TEXT PUBLICATION
                            Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                   File Name: 18a0121p.06

                  UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT



 UNITED STATES OF AMERICA,                             ┐
                                Plaintiff-Appellant,   │
                                                       │
                                                       >      No. 17-5410
       v.                                              │
                                                       │
                                                       │
 RICHARD E. PAULUS, M.D.,                              │
                               Defendant-Appellee.     │
                                                       ┘

                        Appeal from the United States District Court
                      for the Eastern District of Kentucky at Ashland.
                  No. 0:15-cr-0015-1—David L. Bunning, District Judge.

                                 Argued: April 26, 2018

                             Decided and Filed: June 25, 2018

            Before: BATCHELDER, McKEAGUE, and GRIFFIN, Circuit Judges.
                              _________________

                                       COUNSEL

ARGUED: David M. Lieberman, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellant. Robert S. Bennett, HOGAN LOVELLS US LLP, Washington,
D.C., for Appellee. ON BRIEF: David M. Lieberman, UNITED STATES DEPARTMENT
OF JUSTICE, Washington, D.C., Charles P. Wisdom, Jr., Kate K. Smith, UNITED STATES
ATTORNEY’S OFFICE, Lexington, Kentucky, for Appellant. Robert S. Bennett, Michael P.
Kelly, Hilary H. LoCicero, HOGAN LOVELLS US LLP, Washington, D.C., C. David
Mussetter, MUSSETTER LAW OFFICE, Catlettsburg, Kentucky, for Appellee. Andrew
George, BAKER BOTTS L.L.P., Washington, D.C., Nicholas Bourtin, SULLIVAN
& CROMWELL LLP, New York, New York, James F. Segroves, HOOPER, LUNDY
& BOOKMAN, PC, Washington, D.C., for Amici Curiae.
 No. 17-5410                          United States v. Paulus                              Page 2


                                      _________________

                                           OPINION
                                      _________________

       McKEAGUE, Circuit Judge. Mark Twain once quipped that “there are three kinds of
falsehood: lies, damnable lies, and statistics.” Dr. Paulus begs to differ and insists that certain
statistical estimations cannot be false.    As a cardiologist, Paulus interpreted hundreds of
angiograms—specialized x-rays that approximate how severely a person’s arteries are blocked.
A federal jury convicted him of committing healthcare fraud and making false statements, on the
theory that he exaggerated the extent of blockages (e.g., noting 80% blockage instead of 30%),
so he could perform and bill for unnecessary procedures. The district court entered a judgment
of acquittal and conditionally granted a new trial, reasoning that angiogram interpretations are
not facts subject to proof or disproof. Because angiogram interpretations cannot be false, the
reasoning goes, Paulus could not have lied. We disagree with this premise, and accordingly
REVERSE the judgment of the district court and REMAND for further proceedings.

                                                 I

       Heart diseases are a leading cause of death in the United States. One major contributor to
these ailments is the narrowing of coronary arteries near the heart due to fatty plaque buildup.
This case revolves around how doctors measure the severity of that blockage.

                                                A

       The arteries near a person’s heart gradually narrow as a consequence of aging. An artery
becomes narrower as fatty plaque and cholesterol accumulate on the inside of the artery wall.
The medical term for this process is “stenosis.” Stenosis itself is neither medically significant
nor dangerous—many middle-aged people have some level of stenosis that does not impede the
heart’s ability to pump blood to the body. Problems arise when stenosis becomes more severe.
If the artery becomes too narrow, it tends to restrict the amount of blood flowing back into the
heart. This can trigger chest pain or pressure, which in turn should prompt a visit to the doctor.
If ignored or left untreated, the plaque buildups can rupture and form a clot that completely
 No. 17-5410                           United States v. Paulus                             Page 3


blocks blood flow into the heart. The patient then experiences a heart attack, which can quickly
be fatal.

          No one wants to risk a heart attack.      But diagnosing the source of chest pain is
complicated and difficult, even for seasoned doctors. There are plenty of other cardiac (and non-
cardiac) conditions that can mimic the symptoms of severe stenosis. To promote accurate
diagnosis and effective treatment, the medical field has developed a battery of tests, each with
their own advantages and disadvantages. These include noninvasive Electrocardiograms (EKGs)
and Echocardiograms (ECHOs), which use electrical signals and ultrasound waves to measure
the heart’s integrity. Invasive tests, such as Nuclear Stress Tests (NSTs), require injecting
radioactive dye into the bloodstream and then using imaging software to observe blood flow
through the cardiac system.

          When these tests indicate that the pain is coming from the heart, additional tests can be
done to determine whether stenosis is the culprit. One of those tests is an invasive procedure
called cardiac catheterization, which produces images known as angiograms. A doctor obtains
an angiogram by threading a catheter up through a person’s blood vessels and injecting contrast
dye into the arteries near the heart. The doctor then takes an x-ray of the area, which permits a
cardiologist to estimate how severe the blockage is. Catheterization is riskier than performing
EKGs, ECHOs, or NSTs, due to the insertion of a foreign object (the catheter) into a blood
vessel.

          If the angiogram shows at least 70% blockage, the accepted standard of medical care
allows a doctor to insert a stent with no further testing. A stent is a small mesh cylinder that
props the artery open to increase blood flow. Stents can improve blood flow and help prevent
heart attacks, but they cannot cure stenosis or prevent its progression. Moreover, stents are
permanent, and the procedure has been known to cause dangerous bleeding or blood clots in
some cases. But when a patient’s blood vessels are narrowed by 70% or more, the risk of a heart
attack or stroke caused by the stenosis is more severe than any risks posed by the stenting
procedure.
 No. 17-5410                          United States v. Paulus                               Page 4


          Cardiologists also consider a blockage between 50% and 70% to be troubling. However,
because angiograms are sometimes inconclusive in this range, the medical consensus appears to
be that a stent is justified at these levels only if other testing (such as an intra-vascular
ultrasound, or IVUS) confirms that the stenosis is dangerous to the patient. If the blockage is
less than 50%, then the problem does not typically justify the risks involved in placing a stent.

          Part of the difficulty with angiograms is that they can be interpreted differently by
different cardiologists. At trial, the government’s experts acknowledged that the “inter-observer
variability” between two cardiologists would generally be between 10% and 20%, meaning that
one doctor might record 60% stenosis while the other observed 80% stenosis. Apparently, the
variances are most pronounced in the “intermediate” stenosis range (between 50 and 70 percent).
However, the government’s experts reiterated that a cardiologist should rarely commit a larger
error, such as recording a 40% blockage as a 70% blockage, due to the qualitative medical
difference between mild, intermediate, and severe blockage.

          This relative confidence in angiogram interpretation has not gone unchallenged. Paulus
and one of the amici in this case cite several studies where inter-observer variability was much
larger.    See Leonard M. Zir, et al., Interobserver Variability in Coronary Angiography,
53 CIRCULATION 627, 627–29 (1976) (40 angiograms) (reporting 24 instances with inter-
observer variability of 40% or greater and 10 instances where variability exceeded 90%);
Miguel E. Sanmarco, et al., Reproducibility of a Consensus Panel in the Interpretation of
Coronary Angiograms, 96 AM. HEART J. 430, 430–32 (1978) (14 angiograms) (reporting that,
out of fourteen four-doctor panels who viewed the same angiogram seven months apart, six of
them varied between 75% and 100% between the first and the second reading); Ernest N. Arnett,
et al., Coronary Artery Narrowing in Coronary Heart Disease, 91 ANNALS                OF   INTERNAL
MEDICINE 350, 354 (1984) (reporting variability of 40% and higher); Lucian L. Leape, et al.,
Effect of Variability in the Interpretation of Coronary Angiograms, 139 AM. HEART J., 106, 111
(2000) (reporting some instances where cardiologists disagreed by between 39% and 100% on
the blockage shown by an angiogram).

          Paulus contends that these studies show that he could not have made a false statement
when interpreting the relevant angiograms.
 No. 17-5410                          United States v. Paulus                             Page 5


                                                B

        Dr. Paulus was a well-known cardiologist at King’s Daughters Medical Center (KDMC)
in Ashland, Kentucky. During his practice, he routinely billed both private and public insurers
for his services.

        There is no dispute that Dr. Paulus was a workhorse. On a normal day, he would usually
perform more angiograms than his colleagues would on their busiest day. This “astronomical”
amount of work made Paulus first in the nation for the total amount billed to Medicare for these
procedures.    Paulus was rewarded for his efforts: His annual salary clocked in at around
$2.5 million, well above the cutoff for the top quarter of cardiologists, who are paid around
$665,000 annually. This salary was driven, in part, by KDMC’s per-procedure compensation
package, which rewarded Paulus according to the number of procedures he performed.

        Paulus’s productivity did not go unnoticed. In 2008, the U.S. Department of Health and
Human Services received an anonymous complaint that Paulus was defrauding Medicare and
Medicaid by performing medically unnecessary procedures. See 42 U.S.C. §§ 1320c-5(a)(1),
1395y(a)(1). Specifically, the complaint alleged that Paulus would place stents into arteries that
were not blocked, with the approval and encouragement of KDMC. The agency referred the
matter to one of its anti-fraud contractors, which noticed Paulus’s abnormally high billing
volume and selected nineteen of his angiograms for a medical audit. The cardiologist who
performed the audit concluded that in seven of these cases, the blockage was insufficient to
warrant a stent. Based on these results, Medicare denied reimbursement for those procedures
and continued investigating Paulus.

        Subsequently, Anthem Blue Cross, a private insurer, did its own review of Paulus’s
angiograms. Out of eleven randomly selected angiograms, Anthem’s auditor concluded that at
least half the stents ordered by Paulus were not medically necessary. Specifically, the auditor
noted that although Paulus reported stenosis of 70% or greater, the angiograms showed only
50% stenosis—and sometimes far less than that.        These blockages were, in the opinion of
Anthem’s cardiologist, “not clinically relevant.”
 No. 17-5410                          United States v. Paulus                             Page 6


        In 2012, a neurologist at KDMC sent an anonymous letter to the Kentucky Board of
Medical Licensure (KBML) making similar accusations. The Board responded by investigating
and subpoenaing records from KDMC, including fifteen angiograms.             These records were
provided to a cardiologist at the University of Kentucky for a similar medical audit. He, too,
concluded that Paulus had diagnosed these patients with severe stenosis where none was
apparent from the angiograms. Paulus denied these accusations, but since he had retired, he
voluntarily surrendered his medical license to end the inquiry.

                                                C

        Eventually, these allegations made their way to a federal grand jury.        Paulus was
subsequently indicted for committing healthcare fraud and making false statements to healthcare
benefit programs. Paulus moved to dismiss the indictment, claiming that it failed to state an
offense. The district court denied the motion, rejecting Paulus’s argument that (as a matter of
law) angiogram interpretations could not be true or false. Later, Paulus filed several Daubert
motions, claiming that the angiogram images used by the government’s experts were of lesser
quality than the ones he viewed, and in any event, that the government’s experts did not clear
Daubert’s reliability hurdles. The court also denied this motion, holding that the images were
acceptable copies under Rule 1003 and finding that the opinions were at least minimally reliable
under Daubert. It noted, however, that Paulus could attack the credibility of the opinions before
the jury.

        Paulus’s trial lasted for twenty-seven days—twenty-three days of trial and four days of
deliberations. The jury convicted Paulus on ten false-statement counts and on the healthcare
fraud count. It acquitted him on five false-statement counts.

        The government’s case rested primarily on the testimony of nine doctors. Three of them
were called with the express purpose of offering expert testimony. Dr. Ragosta was apparently
retained for the trial. However, Dr. Morrison was the auditor for Anthem; Dr. Moliterno was the
auditor for the Kentucky Medical Board. The other six doctors were cardiologists who either
worked with Paulus in the past or had treated his patients. These six doctors testified both about
 No. 17-5410                         United States v. Paulus                              Page 7


matters of fact and offered some limited medical opinions. Their conclusions are summarized in
the table below:

Witness (sample size)    Trial Opinion   Paulus’s                 Witness Conclusions
                            Covered:  Conclusions
Ragosta (250-300         62 angiograms70% or more          No more than 40% blockage;
procedures)                           blockage             patients did not need stents
Morrison (11 files    4 angiograms    70% or more          Three patients with less than 50%
from Anthem)                          blockage             stenosis; the fourth had no blockage
Moliterno (15         6 angiograms    70% or more          All patients had less than 50%
angiograms                            blockage in          blockage; considered “trivial” or
subpoenaed by KBML                    each instance        “mild” stenosis
Touchon (20-30        5-10            Blockage             All patients had less than 50%
former Paulus         angiograms      warranted a          blockage
patients)                             stent
Studeny (20-50 former 20 angiograms Blockage               None of the patients’ blockages
Paulus patients)                      warranted a          warranted a stent
                                      stent
Shah (former Paulus   Witnessed       Blockage             No severe blockage in the arteries;
colleague) (less than “several”       warranted a          patients did not need stents
10 patients)          angiograms      stent
Kelleman (former      Treated several Blockage             Arteries did not have any
colleague)            patients while  warranted a          significant stenosis
                      Paulus was      stent
                      unavailable
Ali (reviewed “a few” 3 angiograms    70% or more          Arteries lacked significant stenosis,
angiograms)                           blockage in          70% was “highly inappropriate”
                                      each instance
Elesber (reviewed a   “substantial    Blockage             Patients had 10-20% stenosis and
“substantial number”  number”         warranted a          did not need a stent
of angiograms)                        stent

       The government called other witnesses to reinforce the inference drawn by these
doctors—namely, that Paulus systematically exaggerated the amount of blockage he saw on the
angiograms.    This testimony included several former patients and an analysis of Paulus’s
financial records. The district court set aside the ensuing guilty verdicts and entered a judgment
of acquittal on the grounds that the government had not proven fraudulent intent or a false
statement. It also conditionally granted Paulus’s motion for a new trial. The government
appeals both orders. We have jurisdiction under 28 U.S.C. §§ 1291 and 3731.
 No. 17-5410                           United States v. Paulus                               Page 8


                                                 II

       There are two issues presented by this appeal. First, the government contends that the
district court erred in granting a post-verdict judgment of acquittal. Second, the government
argues that the order granting a new trial must be set aside because it is based on the same
erroneous reasons supporting the judgment of acquittal. We agree with the government on all
counts. We therefore reverse the judgment of acquittal, vacate the order granting a new trial, and
remand for further proceedings not inconsistent with this opinion.

                                                  A

       A district court may enter a judgment of acquittal if the government’s proofs are legally
insufficient to sustain a conviction. Fed. R. Crim. P. 29. In resolving this question, the court
must view the evidence “in the light most favorable to the prosecution,” and may not enter a
judgment of acquittal if “any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” United States v. Persaud, 866 F.3d 371, 380 (6th Cir. 2017)
(emphasis in original). Therefore, courts may not “independently weigh[] the evidence, nor
judge[] the credibility of witnesses.” United States v. Talley, 164 F.3d 989, 996 (6th Cir. 1999).
This rule applies with equal force to the testimony and conclusions of the government’s expert
witnesses. Persaud, 866 F.3d at 383. We exercise de novo review over these questions—like
the district court, we only ask whether a rational trier of fact could return a guilty verdict. United
States v. Fisher, 648 F.3d 442, 450 (6th Cir. 2011). If so, the verdict must stand.

       The district court held that the government failed to prove falsity and fraudulent intent,
both of which are essential elements of the crimes charged. See 18 U.S.C. §§ 1035(a)(2), 1347.
It reasoned that that the “degree of stenosis” (i.e., artery blockage as measured by an angiogram)
“is a subjective medical opinion, incapable of confirmation or contradiction.” It based this ruling
on “evidence presented at trial” showing that “interpreting angiograms is a difficult task” and
that “cardiologists frequently disagree with one another regarding the degree of stenosis.” Since
Paulus’s interpretations of his angiograms could not be “subject to proof or disproof,” the district
court concluded that they could be neither false nor fraudulent.
 No. 17-5410                          United States v. Paulus                              Page 9


        We resolved this exact issue less than a year ago, albeit after the district court here had
issued its decision. Persaud, 866 F.3d at 383. We believe we were clear then, but we make it
explicit now: The degree of stenosis is a fact capable of proof or disproof. A doctor who
deliberately inflates the blockage he sees on an angiogram has told a lie; if he does so to bill a
more expensive procedure, then he has also committed fraud. Even state-of-the-art scientific
measurements may sometimes be imprecise. But in these circumstances, it is up to the jury—not
the court—to decide whether the government’s proof is worthy of belief. See Persaud, 866 F.3d
at 383; Daubert v. Merrell Dow Pharms., 509 U.S. 579, 596 (1993). For this reason, the jury’s
verdict must be reinstated.

        Although Persaud controls the outcome here, we pause to make sure the standard is clear.
The false-statement and fraud statutes require proof, beyond a reasonable doubt, that the
defendant made a statement “capable of confirmation or contradiction.”           United States v.
Kurlemann, 736 F.3d 439, 445 (6th Cir. 2013). When the government “demonstrates that the
asserted proposition is untrue,” it has shown that the defendant made a false statement and has
proven one element of the offense. United States v. Waechter, 771 F.2d 974, 978 (6th Cir. 1985)
(interpreting 18 U.S.C. § 1010). Ordinarily, facts are the only item that fits in this category;
opinions—when given honestly—are almost never false. See, e.g., RESTATEMENT (SECOND) OF
TORTS §§ 538A, 539; Gertz v. Robert Welch, Inc., 418 U.S. 323, 339 (1974) (“[T]here is no such
thing as a false idea.”).

        But opinions are not, and have never been, completely insulated from scrutiny. At the
very least, opinions may trigger liability for fraud when they are not honestly held by their
maker, or when the speaker knows of facts that are fundamentally incompatible with his opinion.
RESTATEMENT (SECOND) OF TORTS § 539(1)(a); see also United States v. AseraCare, Inc., 176 F.
Supp. 3d 1282 (N.D. Ala. 2016) (holding that certain good-faith medical diagnoses by a doctor
cannot be false). Thus, although it takes the form of a pure opinion, “a statement that a bond is a
good investment, even though made by a person attempting to sell it, is a fraudulent
misstatement . . . if the vendor knows that the interest on the bond has for years been in default
and the corporation that issued it is now in the hands of a receiver.” RESTATEMENT (SECOND) OF
 No. 17-5410                          United States v. Paulus                             Page 10


TORTS § 539, cmt. a. So too, when the maker of an opinion does not believe what he or she is
saying—in such a case, the speaker has falsely represented their own state of mind.

                                                 B

       For this reason, we think it is clear that Paulus was convicted for misrepresenting facts,
not giving opinions. Paulus was charged with lying about the results of the angiograms he
conducted and using those lies to bill the taxpayers for unnecessary stenting procedures.
Angiograms exist to measure the blockage of coronary arteries. Excessive blockage of coronary
arteries routinely leads to serious heart problems and can ultimately trigger a heart attack.
Persaud, 866 F.3d at 374–75; R. 203, Dr. Ragosta Testimony, PID 4963–64. The blockage
cannot be witnessed by the naked eye, but we have no doubt that a coronary artery blockage
“actually exists” as “an aspect of reality.” Fact, BLACK’S LAW DICTIONARY (10th ed. 2014);
Persaud, 866 F.3d at 374–75; R. 203, Dr. Ragosta Testimony, PID 4955–67; Heart Disease
Facts, CTRS.   FOR   DISEASE CONTROL & PREVENTION, www.cdc.gov/heartdisease/facts.htm;
Coronary Artery Disease, MAYO CLINIC, www.mayoclinic.org/diseases-conditions/coronary-
artery-disease/symptoms-causes/syc-20350613. Indeed, it would be an insult to common sense and
the practice of medicine to say that Paulus was not measuring facts (or attempting to do so) when he
conducted the angiograms at issue here.

       In other words, though we would never fault a doctor for simply misreading an angiogram,
that is not the government’s case here. Rather, the government claims that Paulus repeatedly and
systematically saw one thing on the angiogram and consciously wrote down another, and then used
that misinformation to perform and bill unnecessary procedures. The difficulty of interpreting
angiograms has no bearing on the capacity of these statements to be false.

       The difficulty is, instead, that the government might have a hard time proving that Paulus
saw one thing but willfully recorded another. We have no reason to disbelieve the arguments made
by Paulus and amici that different doctors can interpret the same angiogram differently—sometimes
much, much differently. Words can prove similarly confounding. See, e.g., Muscarello v. United
States, 524 U.S. 125 (1998); Heimer v. Companion Life Ins. Co., 879 F.3d 172 (6th Cir. 2018);
United States v. Marshall, 908 F.2d 1312 (7th Cir. 1990). It would not be unreasonable if, faced
 No. 17-5410                                 United States v. Paulus                                      Page 11


with the evidence now cited to us, a jury concluded that Paulus was acting in good faith and that
the government’s experts were “unfairly second-guessing his reasonable decisions” and making
incorrect assumptions about the medical science. Persaud, 866 F.3d at 384. Indeed, Paulus’s
counsel made a similar case to the jury, in the hopes that it would acquit his client.

         But we are not the jury. And the jury, in this case, came to the opposite conclusion.
Persaud makes it clear that Paulus cannot win a post-verdict motion for a judgment of acquittal
simply by “dismantling the methodology of the government’s expert witnesses.” Id. at 381.1
However difficult it might be for a cardiology expert to prove that his colleague was lying about
what he saw on a scan, and however imprecise the science might be, “[T]he reliability and
believability of expert testimony, once that testimony has been properly admitted, is exclusively
for the jury to decide.” Id. at 380–81. As in Persaud, so too with Paulus: “It cannot be the case
that a juror acts irrationally as a matter of law when he credits the testimony of one expert
witness over another.” Id. at 381.

         Here, the government presented a phalanx of experts who testified that Paulus
systematically recorded severe blockages even when the angiograms only showed mild
blockages or no blockage at all. See R. 203, Dr. Ragosta Testimony, PID 5001–116 (reviewing
62 patients where Paulus had recorded 70% stenosis or higher, and concluding that the actual
level of stenosis was 40% or lower); R. 212, Dr. Morrison Testimony, PID 5705–19 (discussing
four patients where Paulus had recorded 70% stenosis or higher, and concluding that the actual
level of stenosis was 50% or lower for three of them and that the fourth had no blockages);
R. 223, Dr. Moliterno Testimony, PID 6663–708 (same, except all six patients reviewed had
50% stenosis or lower).

         These opinions, having been accepted into evidence, are sufficient to carry the
government’s burden of proof. They assert that Paulus routinely exaggerated what he saw on his
patients’ angiograms, and therefore that his statements were false. That is all the statutes require

         1An  exception to this rule might be in the rare case where the scientific literature proved that an expert’s
opinion was so fundamentally unsound under Daubert that admitting it would have been an abuse of discretion. See
Tamraz v. Lincoln Elec. Co., 620 F.3d 665, 667–78 (6th Cir. 2010). In those cases, it would probably also be true
that no reasonable jury would have credited the evidence. See id. But that is not true in a case like this, where a
medical opinion occupies the daylight between “absolute certainty” and a mere “hunch.” Id.
 No. 17-5410                           United States v. Paulus                             Page 12


from the government. If one juror had a reasonable doubt about the persuasiveness of the
government’s experts, he or she could have prevented the jury from returning a guilty verdict.
See Richardson v. United States, 526 U.S. 813, 817 (1999). But the court may not enter a
judgment of acquittal merely because it doubts the persuasiveness of the government’s expert
testimony. We therefore uphold the jury’s finding that Paulus made a false statement.

                                                 C

       The district court also found that the government failed to prove fraudulent intent.
Although they are legally separate inquiries, the district court’s intent analysis leaned heavily on
its erroneous finding that angiogram readings cannot be false. This overlapping analysis was not
itself erroneous, but the district court’s flawed premise led it to the incorrect outcome once again.

       To convict Paulus, the government had to show that his false statements were willful and
that he acted with intent to defraud. 18 U.S.C. §§ 1035, 1347; Persaud, 866 F.3d at 308, 384.
The government need not offer direct evidence; instead, “a jury may consider circumstantial
evidence and infer intent from evidence of efforts to conceal the unlawful activity, from
misrepresentations, from proof of knowledge, and from profits.” Persaud, 866 F.3d at 380. As
the district court noted, a doctor may not be convicted of fraud for mere mistaken judgments or
good-faith efforts to treat patients to the best of his ability. See id. When deciding a motion for a
judgment of acquittal, however, the court can only ask whether the government presented
evidence allowing a reasonable jury to find that Paulus lied about what he saw on the angiograms
with the intent to deceive the government. Id. at 379–80.

       The government has carried its burden here. At trial, the government presented evidence
of Paulus’s “astronomical” billing numbers, his enormous salary, injured patients’ testimony, and
other evidence about KDMC’s behavior that supported an inference that something was amiss.
The prosecutors then showed the jury around 100 angiograms and offered expert testimony
explaining that Paulus had recorded severe blockages where none existed. At the end of the
government’s case, a reasonable jury could be left with the impression that the problems in this
case came from a lengthy pattern of fraudulent over-diagnosing by Paulus. Although Paulus
engaged in less egregious conduct than the doctor in Persaud, we never indicated that a lesser
 No. 17-5410                           United States v. Paulus                              Page 13


quantum of evidence would have resulted in a judgment of acquittal in that case. Id. at 374–77.
We therefore uphold the jury’s finding that Paulus acted willfully and with fraudulent intent.

       In sum, Paulus’s arguments come too little and too late.             The place to challenge
unreliable expert testimony is in a Daubert motion or through impeachment at trial. Paulus tried
both strategies; he lost both times.     Rule 29 does not give him a third bite at the apple.
Accordingly, we vacate the judgment of acquittal and reinstate the jury’s guilty verdict.

                                                 III

       The district court also conditionally granted Paulus’s motion for a new trial. When a
court grants a judgment of acquittal, it must also “conditionally determine whether any motion
for a new trial should be granted if the judgment of acquittal is later vacated or reversed.” Fed.
R. Crim. P. 29(d)(1). In doing so, it “must specify the reasons” for granting or denying the new
trial. Id. A district court’s decision on a motion for a new trial is reviewed for an abuse of
discretion. See United States v. LaVictor, 848 F.3d 428, 455 (6th Cir. 2017).

                                                  A

       Paulus’s motion was based on a litany of alleged legal errors and on the weight of the
evidence. The district court rejected all but three of those arguments. And the three arguments
the district court accepted all went to the weight of the evidence. First, the district court credited
Paulus’s argument that the KBML settlement, his salary, and the overall number of procedures
were not probative of his fraudulent intent. Second, the district court agreed with Paulus’s
argument that the evidence failed to prove he made a false statement. And third, the district
court found persuasive Paulus’s argument that the evidence failed to prove he acted with
fraudulent intent.

       But the district court’s analysis of Paulus’s winning arguments left much to be desired.
In deciding the new-trial motion, the district court had to take on a different role than when
reviewing the acquittal motion: the district court had to act as the “thirteenth juror” to “consider
the credibility of witnesses and the weight of the evidence” to ensure there had not been a
miscarriage of justice. United States v. Lutz, 154 F.3d 581, 589 (6th Cir. 1998). Although the
 No. 17-5410                            United States v. Paulus                               Page 14


district court mentioned that role in passing, no detailed credibility findings or weighing of
evidence ever came. Instead, the district court simply provided these conclusory statements:

        The Court thoroughly considered all of this evidence in the acquittal section [of
        the order] and found it to be insubstantial circumstantial evidence. Accordingly,
        no further discussion is warranted.
        Under the acquittal standard, the Court places its thumb on the scale in favor of
        the Government. When the Court removes its thumb from the scale and considers
        the evidence as the thirteenth juror, without drawing all reasonable inferences in
        favor of the Government, the Court must also conclude that the jury’s verdict was
        against the manifest weight of the evidence.

        This does not satisfy Rule 29(d)(1)’s requirement that the court explain why the verdict
was against the weight of the evidence. This requirement exists for a reason: without an actual
explanation, we cannot determine whether the district court abused its discretion. An abuse of
discretion occurs when a district court (1) relies on clearly erroneous factual findings,
(2) improperly applies the law, or (3) uses an erroneous legal standard. See United States v.
Munoz, 605 F.3d 359, 366 (6th Cir. 2010). Here, if the district court conditionally granted a new
trial for the same reasons—and only the same reasons—that it granted a judgment of acquittal,
then it abused its discretion. As explained above, the district court improperly applied the law
when ruling that angiogram interpretations cannot be false and that things such as an abnormally
high salary or procedure rate cannot be probative of fraudulent intent. But if the district court
simply “disagree[d] with the jury’s resolution of conflicting evidence,” Lutz, 154 F.3d at 589, we
might not find an abuse of discretion.        Instead, we would have to examine the record to
determine whether the district court relied on clearly erroneous factual findings.

        We therefore vacate the order granting a new trial and remand so the district court can
reconsider its ruling in light of Part II of this opinion. If, after giving due respect to the weight of
a jury verdict in our criminal-justice system, the district court still finds that the verdict was
against the manifest weight of the evidence and resulted in a miscarriage of justice, then it should
provide a detailed analysis explaining why.
 No. 17-5410                          United States v. Paulus                            Page 15


                                                B

         Paulus asks us to affirm on other grounds, arguing that two legal errors also justified a
new trial. First, he claims that the “altered” angiograms should not have been admitted into
evidence. Second, he argues that Paulus’s settlement with the KBML was admitted in violation
of Rule 408 of the Federal Rules of Evidence. We review all such evidentiary rulings for an
abuse of discretion, and we find none here. United States v. Lattner, 385 F.3d 947, 958 (6th Cir.
2004).

         First, the archived angiograms. Paulus asserts that the images presented to the jury were
not strictly the same as the ones he actually viewed. This is only half true, and is wholly
irrelevant. The Rules of Evidence do require that the proponent of an image “produce evidence
sufficient to support a finding that the item is what the proponent claims it is.” Fed. R. Evid.
901(a). But the government did that here. It elicited testimony from at least three doctors that
such “archived” images were the same as the ones Paulus viewed in the lab, just at a lower
resolution. These same doctors also testified that the images were “good enough . . . for clinical
judgment,” and were “of diagnostic quality.” Thus, the government carried its initial burden of
showing that the angiogram images are “what the proponent claims.” Fed. R. Evid. 901(a).

         Paulus’s only avenue of victory is to create a “genuine question” about the accuracy of
the archival images under Rule 1003.        R. 155, Mem. & Order, PID 3398 (admitting the
angiograms as accurate “duplicates”).      His brief makes no attempt at accomplishing this.
Instead, he fixates on the government’s initial burden of authentication under Rule 901, and he
does not cite or analyze any authority showing that the duplicates were inaccurate. Thus, to the
extent Paulus seeks relief through this argument, it is forfeited. Indeck Energy Servs., Inc. v.
Consumers Energy Co., 350 F.3d 972, 979 (2000).

         Next, the KBML order. Paulus claims that, despite its “little evidentiary value,” the
government improperly relied on the order at trial to prove his intent. To start with, Paulus has
forfeited any argument that the settlement violated any rule, much less Rule 408, because he did
not object to its admission (or the government’s reference to it) on this basis during trial.
 No. 17-5410                           United States v. Paulus                             Page 16


We therefore review the admission of the order only for plain and prejudicial error, on top of the
generous abuse-of-discretion standard. United States v. Pierce, 62 F.3d 818, 831 (6th Cir. 1995).

       There was no plain error in admitting the order.           Rule 408 expressly allows the
introduction of “conduct or a statement made during compromise negotiations” if they are
“offered in a criminal case and when the negotiations related to a claim by a public office in the
exercise of its regulatory, investigative, or enforcement authority.” Fed. R. Evid. 408(a)(2);
United States v. Davis, 596 F.3d 852, 860 (D.C. Cir. 2010); United States v. Prewitt, 34 F.3d
436, 439 (7th Cir. 1994). This is exactly what the government did—it introduced statements,
made by Paulus, as part of a stipulated agreement with the KBML over his medical license. At
least on its face, Rule 408 contemplates that this evidence would be admissible in a criminal
prosecution.

       Paulus also identifies several advisory comments to the rule that ostensibly require
exclusion. See Fed. R. Evid. 408, Advisory Comm. n. to 2006 Amendments (“An offer or
acceptance of a compromise of any civil claim is excluded under the Rule if offered against the
defendant as an admission of fault . . . . Unlike a direct statement of fault, an offer or acceptance
of a compromise is not very probative of the defendant’s guilt.”). But he overlooks the fact that
the same notes also point out that “statements and conduct” that amount to an admission of fault
are admissible under the rule.      Id.   As the government argues, the agreement contains a
concession by Paulus that the KBML “could conclude that he has engaged in conduct” which
violates the law. It also cites specific findings by KBML about Paulus’s conduct and the
agency’s belief that Paulus had violated the rules governing the practice of medicine. Although
the government’s references to the agreement might walk the fine line between an “acceptance”
of a compromise and an admission of liability, we cannot say that the district court plainly
abused its discretion in admitting the evidence here.
 No. 17-5410                        United States v. Paulus                          Page 17


                                             IV

       The government produced sufficient evidence to support the guilty verdict. We therefore
REVERSE the judgment of acquittal and REINSTATE the jury’s verdict. Furthermore, we
VACATE the conditional order granting a new trial and REMAND for reconsideration of
Paulus’s weight-of-the-evidence arguments.
