U.S. v. Schneider, 09-3028.

• Decision Date: 08 February 2010
• Docket Number: No. 09-3028.,No. 09-3045.,09-3028.,09-3045.
• Citation: 594 F.3d 1219
• Parties: UNITED STATES of America, Plaintiff-Appellant/Cross-Appellee v. Steven J. SCHNEIDER; Linda K. Schneider, also known as Linda Atterbury, doing business as Schneider Medical Clinic, Defendants-Appellees/Cross-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

594 F.3d 1219

UNITED STATES of America, Plaintiff-Appellant/Cross-Appellee v. Steven J. SCHNEIDER; Linda K. Schneider, also known as Linda Atterbury, doing business as Schneider Medical Clinic, Defendants-Appellees/Cross-Appellants.

No. 09-3028.

No. 09-3045.

United States Court of Appeals, Tenth Circuit.

February 8, 2010.

Richard A. Friedman, Appellate Section, Criminal Division, United States Department of Justice, Washington, D.C. (Marietta Parker, Acting United States Attorney, and Tanya J. Treadway, Assistant United States Attorney, for the District of Kansas) for Plaintiff/Appellant/Cross-Appellee.

Eugene V. Gorokhov of Eugene V. Gorokhov, PLLC, Arlington, VA, and Lawrence W. Williamson, Jr., of Williamson Law Firm, LLC, Kansas City, MO (Kevin P. Byers of Kevin P. Byers Company, L.P.A., Columbus, OH, with them on the briefs) for Defendants/Appellees/Cross-Appellants.

Before TACHA, O'BRIEN, and GORSUCH, Circuit Judges.

O'BRIEN, Circuit Judge.

This is an interlocutory appeal by the United States from a pre-trial order issued in the prosecution of Stephen and Linda Schneider (the Schneiders). A thirty-four count indictment charged the Schneiders with, among other things, impermissibly dispensing controlled drugs at their family-owned clinic resulting in the deaths of numerous patients. Count 5 of the indictment charged the Schneiders with illegally distributing drugs to eighteen patients, resulting in death. The target of the government's appeal is the district court's order excluding evidence of all but one of the eighteen deaths charged in Count 5 and the court's placement of a ten-day limitation on the government's time to present its case. The Schneiders cross-appeal from the district court's denial of their motion to exclude the government's expert testimony. Exercising jurisdiction under 18 U.S.C. § 3731, we VACATE the district court's trial restrictions and REMAND. We DISMISS the Schneiders' cross-appeal for lack of jurisdiction.

I. BACKGROUND

At the time relevant to the indictment, Stephen Schneider was a doctor of osteopathy and his wife, Linda Schneider, was a licensed practical nurse. They owned and operated Schneider Medical Clinic in Haysville, Kansas, where they provided pain management treatment including the prescription of controlled substances. On December 17, 2008, a Kansas grand jury issued a second superseding indictment charging: Count 1 — conspiracy to unlawfully distribute drugs, commit health care fraud, engage in money-laundering, and defraud the United States in violation of 18 U.S.C. § 371; Counts 2-5 — illegal distribution of drugs resulting in patient deaths in violation of 21 U.S.C. § 841(a)(1); Count 6 — illegal distribution of a specific drug, Actiq (fentanyl), to thirty-seven named individuals in violation of 21 U.S.C. § 841(a)(1); Counts 7-9 — health-care fraud resulting in the deaths of the three individuals named in Counts 2-4 in violation of 18 U.S.C. § 1347; Counts 10-17 — health-care fraud in violation of 18 U.S.C § 1347; and Counts 18-34 — money-laundering in violation of 18 U.S.C. § 1957.

The allegations in Count 5 charged:

From in or about January 2002, and continuing through in or about July 2007, within the District of Kansas, the defendants, . . . not for a legitimate medical purpose and outside the usual course of professional medical practice, did knowingly and intentionally distribute and dispense, and caused to be distributed and dispensed, Schedule 2, 3 and 4 controlled substances to at least the below-listed individuals, which resulted in their serious bodily injury and deaths: [listing eighteen names].

(Appx. at 79-80.) Counts 2, 3 and 4 each contained specific allegations regarding the treatment history and death of a single individual not named in Count 5.¹

In January 2008, the original presiding judge granted the government's unopposed motion to designate the case as complex. The parties estimated trial would take approximately eight weeks. The case was reassigned to the current judge on March 17, 2008, and at a status conference on April 15, 2008, trial was set for February 2, 2009. On January 12, 2009, the court told the parties they must trim their witness lists "[s]o that this case can be tried reasonably within four to five weeks." (Appx. at 149.) On January 16, 2009, the Schneiders wrote the court to object to its time limitation, stating it "would [make it] impossible to provide an adequate . . . defense, given the scope of the allegations in the Indictment." (Id. at 113.)

At the January 26, 2009 status conference — one week before trial was to begin — the court announced two sua sponte rulings which are the basis of this appeal. First, the court addressed the length of the trial stating: "I appreciate the defense counsels' letter, but I'm sticking to four to five weeks. . . . I think that this case can be tried in that period of time and I will count on it being tried." (Id. at 155.) The court then ruled the government's evidence of patient deaths would be limited to the three individuals named in Counts 2, 3 and 4, explaining: "This is a Rule 403 ruling. . . ."² (Id. at 157.) This colloquy followed:

Prosecutor: Excuse me. Based on that ruling, Judge, you've essentially dismissed Count 5 of the Indictment.

The Court: Then it's dismissed.

Prosecutor: Well, Judge, I don't believe you have a basis to dismiss Count 5 and we would probably have to take an interlocutory appeal on that.

The Court: Well you go right ahead and do that. But this case starts next Monday. And if you take an interlocutory appeal, you better be counting on winning it because this case is going to be tried the way I say it's going to be tried. And I would rethink that if I were you. And you better have your boss down here to talk to me about it.

(Id. at 158-59).

After a brief recess, the court stated:

Let me go back for a minute to the Government's threat — which I consider a threat, and nobody threatens me in this courtroom — to take an interlocutory appeal. I will allow on Count 5 the government to prove the charge regarding [the first named individual]. As to the other deaths in count 5, I find under Rule 403 that the probative value is substantially outweighed by confusion of issues, misleading the jury, and considerations of delay, waste of time and also presentation of cumulative evidence.

(Id. at 161-62.) The prosecutor asked for clarification as to the effect of the ruling on the experts' opinions, explaining the expert opinions were based on a review of over 100 files. The court ruled the opinion would not be allowed "if it mentioned the patient deaths other than the four" allowed by the court's ruling. (Id. at 162.) The exchange continued:

The Court: I'm not going to cut down the numbers of other patients. I would have no way of doing that. But what I am telling you is you've got ten days to put your case on. Think about it.

Prosecutor: Well, judge, that's really five days if you think about it because . . . they get to cross-examine my witnesses, and . . . I assume that they [will] cross-examine my witnesses for the length of time my witnesses are on [direct examination]. I have five days to present a case. That is, with all due respect to the Court, impossible given the activities of these defendants.

The Court: You've got ten days to present your case. I don't care how you do it. That's not my job. I think you can.

Prosecutor: Well, Judge, I will be real honest with you. You know. . . .

The Court: I am not extending this case to . . . however long the counsel want it extended.

Prosecutor: I'm not asking that.

The Court: Ten days. Sit down please. You've got ten days to put your case on. If you don't get it on, then I will kick the counts out that you don't cover. That's it. The Defendants get ten days. That's all. I'm not having argument about this. I can't help what the Government charges but I can control how much time the jury spends listening to the evidence and how much time I have to spend on it; and I've spent a lot of time on this already.

(Id. at 163-64.)

An order issued two days later ruled:

The court finds under Rule 403(b), that the probative value of the evidence of over sixty deaths is substantially outweighed by confusion of issues and the potential to mislead the jury. Moreover, the evidence of the large number of deaths will certainly cause delay and result in a needless presentation of cumulative evidence. The government may present evidence of the three charged deaths in counts 2, 3 and 4. The government may also present evidence of [the first named individual]'s death in order to prove the allegations in count 5.

(Id. at 123.)

The government filed this interlocutory appeal challenging the court's rulings. Shortly thereafter, the Schneiders filed a cross-appeal from the court's denial of their earlier motions to exclude the government's expert testimony, claiming error under Rule 702 of the Federal Rules of Evidence. The government moved to dismiss the cross-appeal for lack of jurisdiction.

II. GOVERNMENT'S APPEAL

A. Limitation of Evidence

"The government can take an interlocutory appeal only with specific statutory authority." United States v. Louisiana Pacific Corp., 106 F.3d 345, 348 (10th Cir. 1997). The Criminal Appeals Act, 18 U.S.C. § 3731, provides in relevant part In a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or information . . . as to any one or more counts, or any part thereof,³ except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution.

An appeal by the United States shall lie to a court of appeals from a decision or order of a district court suppressing or excluding evidence . . . not made after the defendant has been put in jeopardy and before the verdict or finding on an indictment or information, if the United States...