United States v. Schneider

legislative “that contends party Where America, UNITED STATES law,” party changed settled

action Plaintiff-Appellee, legis- showing the burden “has change.” such a Green lature intended Co., 504, 490 U.S. Laundry Mach. Bock SCHNEIDER; Stephen Linda K. J. 1981, 104 L.Ed.2d 557 521, 109 S.Ct. Schneider, Linda K. Atter a/k/a (1989). principles are interpretive These bury, Defendants-Appellants. cases, bankruptcy critical particularly in con- rely settled rules parties where No. 10-3281. structuring business. ducting and Appeals, United States Court bankruptcy practice “[p]re-BAPCPA Tenth Circuit. Bank- not read the we will telling because bankruptcy past to erode ruptcy Code 16, 2013. Jan. a clear that Con- practice absent indication departure.” Hamil- gress intended such — -, Lanning, U.S. 130 S.Ct.

ton v. (2010)

2464, 2473, (quota- 177 L.Ed.2d 23 omitted). Here, statutory lan-

tion history lack clear legislative

guage and to erode Congress intended

indication bankruptcy protection. of creditor pillar Castaneda, Hui v. U.S. (2010); L.Ed.2d 703

S.Ct. 419-20, Timm,

Dewsnup v. 502 U.S. (1992). L.Ed.2d 903 S.Ct. light of the fact Con-

Especially APR in repealed the

gress expressly has 82-2320, Rep. H.R. at 1981- past, see implied repeal we decline to find

here. bankrupt- therefore REVERSE

We confirming plan order

cy court’s proceedings. for further

REMAND Carlson, Federal

John T. Assistant Pub- Fishman, Defender, and T. Of lic Robert Winocur, Counsel, McGreevy & manded for trial. at 1221. In Ridley, (and Moore, decision, Raymond P. Federal we P.C. same dismissed Schneid- Defender, briefs), Denver, on the cross-appeal Public ers’ from the denial of their CO, Defendаnts-Appellants. for government’s expert motion to exclude the testimony, finding jurisdic- that we lacked Treadway, Tanya Assistant United tion under the collateral order doctrine. (and Grissom, Attorney, Barry R. States ap- Id. at 1229-30. The Schneiders now briefs), Attorney, United States before, peal their convictions. As we be- KS, Topeka, Plaintiff-Appellee. gin with the relevant facts. HOLMES, KELLY and Before Circuit osteopath- Schneider was doctor of *, Judges Judge. and MARTINEZ District wife, Schneider, ic medicine and his Ms. practical was licensed nurse. IV R. 104. JR., KELLY, Judge. PAUL Circuit They operated owned and Schneider Medi- Defendants-Appellants Stephen and Kansas, in Haysville, they cal Clinic where Schneiders) (the Linda Schneider were provided pain management treatment in- convicted of several counts of unlawful cluding prescription of controlled sub- distribution, fraud, drug health care and 3, 2010, May stances. Id. at 104-05. On money laundering, arising all from their grand Kansas issued a third su- operation of Schneider Medical Clinic. perseding indictment charging: Count 1— The district court sentenced Dr. Schneider conspiracy unlawfully drugs, distribute imprisonment, to 360 months’ and Ms. fraud, commit health care in engagе mon- imprisonment. Schneider to 396 months’ ey laundering, and defraud the United convictions, appeal The Schneiders their 371; § States in violation of 18 U.S.C. (1) alleging were denied right drug Counts 2-6—unlawful distribution (2) representation; conflict-free the dis- drug resulting and unlawful distribution erroneously trict court expert admitted 841(a)(1); § death violation of 21 U.S.C. (3) testimony; improper- district court Counts 7-17—health care fraud and health (4) ly jury; instructed the there was resulting care fraud death in violation of insufficient support charge evidence to 1347; 18 U.S.C. and Counts 18-34— of health resulting care fraud death. money laundering in violation 18 U.S.C. jurisdiction We have under 28 U.S.C. § 1957. Id. 104-72. and we affirm. By indictment, the time of the third Background case, already happened much had in the especially respect to the Schneiders’ This is the second time that the Schneid- Schneiders, trial counsel. The after be- ers and their medical clinic come before us friending Reynolds, occasion, Siobhan a leader of appeal. on the first On we con- sidered, (PRN), the Pain Relief Network fired their interlocutory appeal by on government, court-appointed counsel pre-trial whether a and hired new order ex- cluding Reynolds counsel limiting govern- suggested. evidence and Ms. present proper. ment’s time to its case VIII R. 104. Dr. and Ms. Schneider had Schneider, counsel, United States v. separate attorneys 594 F.3d 1219 but their were (10th Cir.2010). not, We held that it was Reynolds. communication with Ms. order, vacated Moreover, the district court re- id. at 235-36. repre- while * Martinez, The sitting by designation. Honorable William J. Colorado, Judge, States District District of con- prescribing Schneider, Kansas standards this coun- Dr. and Ms. senting PRN, Ac- sought tempo- Id. at 3002-03. sel, of the trolled substances. on behalf (1) prohibiting restraining Parran, orders rary cording to Dr. Schneiders: Arts from sus- Healing Board of addicts; Kansas drug attracted ran a license. Dr. Schneider’s pending (2) histories; and inadequate took also filed This same counsel at 106-07. Id. (3) controlled indiscriminately prescribed ‍​‌‌​‌​​​‌‌‌​‌​​​‌​‌‌​​​‌​​​​​‌‌​‌​‌‌‌​​​‌‌‌​‌​‌​‍District of Wash- in the Eastern a lawsuit amounts. escalating in excessive and drugs restricting state rules challenging ington 3003, 3008, 3028. On cross-examina- Id. at at 263-73. Id. pain medicines. access tion, Dr. Par- questioned counsel defense conflict, govern- potential of a Aware Id. at operated. how the clinic ran about of conflict. moved for a determination mеnt redirect, government, 3473-76. 14, 2008, pre- then March at 143. On Id. re- questions Dr. Parran additional asked hearing Judge Brown held siding clinic, to which garding operations Judge Brown stat- at 142-43. motion. Id. at fault” for that “the clinic was replied he concerns, and defense government’s ed the at 3527. Dr. illegal drug distribution. that there was no con- represented counsel that, from his review Parran also testified Then, after confer- Id. at 144-64. flict. records, ran a “dis- the Schneiders of the counsel, Dr. and Ms. Schneider ring with at 2982-83. The practice.” honest Id. In No- conflicts. Id. potential all waived object testimony. to this Schneiders 2009, renewed its government vember of a conflict. for a determination motion Jorgensen govern- was the Douglas Dr. Belot, at presided who Judge at 99. Id. management and expert pain on ment’s for Dr. trial, hearings parte conducted ex at Medical Clin- billing practices Schneider 11, January 2010. and Ms. Schneider Jorgensen Dr. reviewed ic. R. 404. XIV 160-68, hearing, At each 173-86. R.XV charts, autop- numerous fifty-four medical questioned Schneiders Judge Belot information toxicology reports, and sy and Id. Both conflicts. potential about As coding practices. Id. billing about of no conflict that were aware stated testimony on his ob- his extensive part of Id. at potential all conflicts. and waived documents, Dr. Jor- from these servations 168,185. summarily opined gensen 2010, proceeded the case During Spring fraud resulted health care Schneiders’ government presented The to trial. 520, See, at 526. e.g., id. patients’ deaths. detailing amount of evidence extensive that he be- also testified Jorgensen Dr. Medical Clinic. of Schneider operations rec- of the lieved, from his review again testimony patients from lay This included ords, filed fraudulent Schneiders along expert employees, and former object The Schneiders Id. at 519. claims. ap- experts. On testimony from medical testimony. to this challenge portions of peal, the Schneiders also testified (S.) Dr. Thorne Owen Graves testimony. Aplt. Stephen expert this R. XIII management. expert expert pain as an we describe this Br. 17-32. asked 2785, government testimony in more detail. 2788. The medical rec- Owen, from a review trial, Parran was the Dr. Theodore At pre- ords, “was Dr. Schneider care at patient expert government’s legiti- scribing controlled substances XIII R. 2957. Medical Clinic. Schneider 2809, Id. purpose?” mate medical rec- patient over 100 Dr. Parran reviewed not.” “[i]t Dr. Owen answered records, Dr. Parran From those ords. Id. this testimo- object to Schneiders violated the Schneiders concluded testimony ny, along agree with similar from Drs. We with the Jorgensen. Parran and right the Schneiders waived the representation. conflict-free The Sixth trial, lengthy After a found right contemplates Amendment to counsel 1-17 guilty of Counts and two Schneider right representation. to conflict-free (Counts money laundering charges 26 and Arkansas, 475, Holloway See 435 U.S. 28), guilty and found Ms. of all Schneider 483-84, 98 S.Ct. 55 L.Ed.2d 426 charges money laundering save two (1978). However, may a defendant waive 24). (Counts charges 23 and The court right, voluntarily, if it is done know sentenced Dr. to 360 months’ Smith, ingly, intelligently. Estelle v. imprisonment, and Ms. Schneider to 396 471 n. U.S. 101 S.Ct. imprisonment. months’ The (1981). L.Ed.2d 359 The trial court must timely appealed, filing separate briefs but ensure that a defendant understands the incorporating arguments reference the nature of potential conflict and its made in each other’s briefs. See Fed. effect representation. on counsel’s 28(i); 9; R.App. Aplt. P. S. Br. Linda States, 153, 161, Wheat United 486 U.S. (L.) Schneider, however, Br. 75. Ms. does (1988). 108 S.Ct. 100 L.Ed.2d 140 join Dr. Schneider’s In- We have held that Joining struction 33. Statement Co-Def.’s Errata, Sept. Br. and Notice of in order for a effectively defendant counsel, right waive his to conflict-free Discussion judge affirmatively the trial should par- ticipate in by the waiver decision elicit- Right A. Representation to Conflict-Free ing a statement in narrative form from argue they The Schneiders first that the defendant indicating fully that he right were denied the to conflict-free rep- understands the nature of the situation Aplt. They allege resentation. L. Br. 36. and has knowingly intelligently and that po- the district court’s advice of the made proceed the decision to the subsequent tential conflict and their waiv- challenged counsel. inadequate. They ers were Id. contend 1517, Migliaccio, United States v. 34 F.3d claim, that this is a conflict-of-interest not (10th Cir.1994) omitted). (quotation 1527 deficient-performance claim, thus, and Moreover, determining when if a waiver is this court should apply the adverse-effects valid, “totality we consider the of the cir- Sullivan, 335, Cuyler test of v. 446 U.S. cumstances,” including prior all discussions 1708, (1980), 100 64 S.Ct. L.Ed.2d 333 any of conflict. Id. the prejudice test of Strickland v. Wash- 668, ington, 2052, Hеre, 466 U.S. 104 S.Ct. 80 the record shows the (1984). L.Ed.2d Aplt. Schneiders, 674 L. Br. 57. Un- two medical professionals, Cuyler, der only prove defendant need right waived their to repre- conflict-free an actual conflict of adversely trial, interest that sentation. Prior to the court con- performance. affected counsel’s hearings 446 U.S. ducted two potential conflicts. at government 100 S.Ct. 1708. The hearing, At the first Judge Brown stated (1) disagrees, arguing concerns, government’s Schneiders repre- counsel right conflict, then, waived the represen- conflict-free sented that there was no and (2) tation, and this is a garden-variety, given after opportunity to confer with counsel, ineffective assistance of counsel claim poten- best all Schneiders waived in a proceeding reviewed collateral under tial conflicts. R. 144-64. At VIII Strickland. Aplee. L. Br. 22-23. hearing, second which was conducted ex

1293 (1) testify Ms. that Dr. expert Dr. and witnesses parte separately and Schneider, questioned Judge again guilty Belot was of crimes Schneider (2) (3) potential about the conflict. legal charged; opinions; Schneiders 160-68, XV 173-86. Both stated R. Aplt. about Schneider’s state of mind. аll no conflict and waived were aware of court’s S. Br. We review a district Con- potential conflicts. Id. at expert testimony for abuse of admission “totality circum- sidering the discretion, Shaffer, United v. 472 States stances,” 34 we Migliaccio, F.3d Cir.2007), F.3d 1225 and will that the waivers were valid. have no doubt only reverse when is “mani that decision festly Dazey, erroneous.” United States agree government also with the We (10th Cir.2005). 1147, 1171 When brought claim is remaining best preserved, a claim is not we review for long have ex proceeding. collateral We plain Knight, “ineffective of coun error. United plained that assistance States v. (10th Cir.2011). for collat appropriate sel claims are more Under than under 28 review, eral attack U.S.C. plain may error we not reverse because factual record appeal, (1) (2) direct error, unless we find is developed when for such claims more (3) plain, rights, which affects substantial evidentiary court conducts an the district (4) fairness, seriously and which affects on the issue.” States hearing public judicial integrity, reputation Cir. Bergman, proceedings. omitted). 2010) (citation Here, further de allege the court The Schnеiders first required. of the record is velopment admitting testimony that erred claim any ineffective assistance guilty drug unlawful dis- Schneider proceed in a brought should be collateral tribution violation of U.S.C. ing. of 18 health care fraud in violation note Dr. and Ms. Finally, we Spe- § 1347. Br. 20-22. U.S.C. S. criticize the for tak it cifically, argue that was ing positions on the issue inconsistent that “the opine for Dr. Parran to improper suggest The even conflict. Schneiders illegal drug at fault” for distribu- clinic was be judicial estoppel appropriate that tion, that opine Dr. to Jorgensen and for trial, argued government, cause the at care in health “engaged Dr. Schneider conflict, now, appeal, on there was a 20-21. resulting in Id. at fraud” death. of a conflict. denies the existence object did to Jor- The Schneiders not 1-6; Aplt. We L.R. Br. S.R. Br. 5-8. testimony, so we review gensen’s reject the suggestion, this and remind error. plain claim for government the has an rules allow The of evidence coun “duty to alert the court to defense issue” to opine an “ultimate expert inter and actual conflicts of potential sel’s fact. Fed. by the trier of be decided 685 McKeighan, States est.” United 704(a); at 1171. Dazey, 403 F.3d R.Evid. (10th Cir.2012) (emphasis F.3d However, “simply tell expert may an not added). however, responsibility, This does reach[;]” he jury what result it should later from prevent not explain she must the basis denying the existence a conflict. at 403 F.3d summary opinion. Dazey, B. Expert Testimony Witness Here, find in the admis we no error testi Jorgensen’s Drs. Parran and sion of next contend

The Schneiders jury to told the mony. court allowed Neither doctor improperly that the district verdict, reach a i.e. that Dr. “an particular intention to deceive and defraud the Rather, guilty. Schneider was after ex- system,” and from Dr. Parran that “this is plaining great length at their observations practice.” dishonest Id. at 29. The evidence, they from the summarized their trial, object Schneiders did not at so we testimony XIII findings above. R. plain review for error. 2945-3320; such, XIV R. 395-550. As prohibit The evidence rules an testimony properly admitted. “expert stat[ing] witness ... an [from] argue expert The Schneiders next about whether the opinion defendant did impermissibly legal witnesses offered con did have mental state or condition clusions that Dr. engaged Schneider constitutes element of the crimе ordinary conduct outside the course charged or of a defense.” Fed.R.Evid. Here, practice. Aplt. S. Br. 23-28. 704(b); Shaffer, see testimony the Schneiders cite the of Drs. However, the prevent rules do not an ex Owens, Parran, Jorgensen, and opin each from pert drawing conclusions in about that Dr. ing prescribed con tent, long so as the expert profess does not trolled legiti substances “for other than know defendant’s intent. See United purposes.” mate medical Id. at 23-26. Orr, States v. 68 F.3d The Schneiders moved in limine to exclude Cir.1995). case, In this expert wit testimony, judge and the denied the expressly nesses disclaimed knowledge motion; thus, we review for abuse of dis See, e.g., Schneider’s intent. R. XIV Mejia-Alar cretion. See United States v. (“Q: you 533-34 Are telling what con, (10th Cir.1993). you know to be the Defendant’s intent or The crux of argu the Schneiders’ you stating are what the evidence indicates ment is that the experts should not have you? stating A: I’m what the evidence legal phrase—other used a legitimate than me....”). indicates to we find no purposes—in testimony. their error in the testimony. admission of this However, we allow experts to refer “to the in expressing opinion.” law [their] C. Jury Erroneous Instructions Bedford, States The Schneiders next contend that (10th Cir.2008) (internal quotation marks court, trial in charging jury, erred in omitted). concern, and citation rath First, ways. four contend er, is when an expert specialized uses a that, court should have instructed to con- legal usurps jury’s term and function. 841(a)(1), vict under 21 U.S.C. The use of the phrase legiti “other than had to find that Dr. purposes” knowingly mate medical Schneider does not cause problem. such a legitimate See United acted without a purpose States v. medical Mclver, (4th Cir.2006). or outside the course professional usual The Schneiders’ effort distinguish to the Second, practice. Aplt. S. Br. they permissible testimony in Mclver from claim that it was error to include the what occurred here is not persuasive. phrase “beyond the bounds of medical Therefore, testimony the admission of the practice” in the drug distribution instruc- was proper. Third, tion. Id. at 41-42. they contend good that the faith instruction was errone- finally

The Schneiders argue the ous it prevented jury because the from experts impermissibly Dr. testified to finding Dr. Here, Schneider’s intent. Schneider acted faith. Aplt. S. Br. 28. fourth, the testimony they argue Schneiders cite Id. at 45. And from Dr. the Jorgensen that the documents evidence health care fraud instruction was errone- support, to R. In the cite be IV 845. it allowed Dr.- Schneider because ous Feingold, the United States where found Schneider was if Ms. convicted that, held to convict Ninth Circuit under Id. at 53. guilty. 841(a)(1), “jury § a finding a must make rejection of a court’s We review to merely respect intent with distribu not of di instruction for abuse jury proposed tion, to the respect but also doctor’s rection, considering de novo the instruc pusher intent act as a rather than to as a whole to determine tions 1001, 1008 F.3d professional.” medical govern the accurately jury inform the (9th Cir.2006). However, Feingold pro Gwathney, 465 law. States v. ing support vides little because the instruc (10th Cir.2006). When a F.3d nearly to Feingold tions in were identical plain object, review for party does not we case, those in the instant court Teague, United States error. Feingold held that “com the instructions Cir.2006). Schneid- pelled jury consider whether [the objected give to the court’s refusal ers intended to distribute the con defendant] 841(a)(1), § instruction under proposed its legitimate trolled for a medical substances object to the other instructions. but did act purpose ‍​‌‌​‌​​​‌‌‌​‌​​​‌​‌‌​​​‌​​​​​‌‌​‌​‌‌‌​​​‌‌‌​‌​‌​‍and whether he intended to professional usual within the course challenge the The Schneiders first think practice.” 454 at 1009. We instruction, drug unlawful distribution jury Dr. same true here—the considered stating court should have instruct words, Dr. Schneider’s intent. In other must jury ed the argument Schneider’s is without merit be knowingly and inten prove Schneider jury, given, cause the on the instructions tionally legitimate not for a acted either knowingly found that he acted not for or outside usual purpose medical legitimate purpose not within professional practice. Aplt. course of his practice. course of professional usual instruction, given, pro Br. 34. The S. reaching IV In con R. must jury find: vided clusion, need not mens rea we decide dispensed Stephen First: Schneider 841(a)(1); only requirement under we ...; [controlled substances] hold that the Schneiders’ is with acted Stephen Second: Schneider know- out merit. intentionally; and ingly and the Schneiders’ second claim On actions Stephen Third: Schneider’s were instructions, we do not concerning purposes not for legitimate medical thе phrase the inclusion of believe that course of medi- professional usual practice” “beyond the bounds of medical beyond cal or were un plain charged error. Counts 2-6 practice. bounds of in violation of drug lawful distribution provided good R. 839. The court also IV 841(a)(1). R. Instructions 20- IV 835. faith instruction that: provided find 23 and physician does not violate Section [A] find needed to guilty 841(a)(1) he a dispenses ... when con- for legitimate actions “were not his in faith to a pa- trolled substance in the usual course purposes medical professional tient the usual course be professional were practice. practice.” yond bounds medical the matter, 838-41, we faith” the hon- As an initial “good

The term means that there is judg- reject the Schneiders’ claim good professional est exercise of precedential phrase support no patient’s ment as to a medical needs. both, (one defendants) “beyond practice.” the bounds of medical er would Moore, guilty See United States v. be U.S. as well. Br. S. 56. We (1975) claim, reject noting 96 S.Ct. 46 L.Ed.2d 333 that even if this (discussing worded, instruction could physicians “operate who be- have been better instructions, yond professional practice”). the bounds of when considered a whole, correctly directly, practical jury More no informed the we find differ- ... needed to consider intent guilt ence between “not the usual course separately. Moreover, R. professional practice” See IV 820. and “be- jury yond completed separate practice.” the bounds of medical Fi- verdict sheets for Dr. nally, difference, if and Ms. Schneider there a and convicted them were over- of different whelming proved evidence offenses. See id. at 770-83. We do not unlawfully prescribed Schneider believe this instruction controlled Thus, erroneous. substances. the inclusion of the phrase “beyond the bounds of medical 181p7: D. 18 U.S.C. Counts 7-9 practice” did not affect the Schneiders’ substantial rights. Our review is de novo as to the sufficiency of the evidence. United States similarly We find no error the court’s Smith, 641 F.3d Cir. good faith instruction. pro- Instruction 27 2011). “We view the evidence in light vided that “a physician does not violate most favorable to the verdict to ascertain 841(a)(1) Section ... dispenses when he rational triеr of fact could controlled in good substance faith to a have guilty beyond found the defendant patient in the usual course of professional reasonable doubt.” Id. at 1204-05. practice.” R. IV 845. The Schneiders phrase contest the “in 1347(a) the usual course of Section provides an enhanced professional practice,” arguing that a jury penalty for health care “if fraud the viola- only could find acted tion results in death.” 18 U.S.C. good faith if they 1347(a). first found his actions to Counts 7-9 charged be in the professional usual course of prac- Schneiders health care fraud result- tice. Aplt. S. Br. 47. reading, This how- ing in death. IV R. 851. The Schneiders ever, parses the finely. instruction too In- assert that presented in- struction 27 later defines “good faith” as sufficient support evidence to jury’s “the honest good professional exercise of verdict. Aplt. S. Br. Specifically, 52-53. judgment.” IV R. 845. argue per- fraud could have decided that Dr. Schneider act- petuated against insurers—i.e. upcoding in “good ed faith.” billing services or for services not ren- dered—was not the cause of harm any Finally, we find no error in the patients. government responds сourt’s health care fraud instruction. In presented the evidence was similar to that provided struction 33 find “[t]o one or upheld as sufficient other circuits. both of the guilty defendants of health 60; Aplee. Br. S. see United States v. [you care fraud must find] defendant Webb, Cir.2011); knowingly and willfully executed ... Martinez, United States v. scheme or artifice to defraud a health care (6th Cir.2009). 319-23 program.” benefit Id. at 852. Dr. Schneid er argues that this permitted instruction Sufficient supports evidence to convict him liability on a strict convictions on gov these counts. As the (a theory—i.e. defendant) if Ms. Schneider explained ernment at oral argument, evi fraud, executed a health care Dr. Schneid- dence of the scheme to defraud was not

1297 discretion,” upcoding billing prac- limited to the and but “we review de novo Rather, tices. the scheme included the legal objections jury to the instructions.” illegal drugs, distribution of which caused Co., Frederick v. Transp. 616 F.3d Swift Eric, patients—Patty, the deaths of three (10th 1074, Cir.2010) (citations 1079 omit- expert testimony and Robin. The and ted) (internal omitted); quotation marks produced medical records at trial showed Inc., see Freight also Webb v. ABF Sys., that Dr. prescribe Schneider continued to (10th 1230, Cir.1998) (“[W]e 155 F.3d 1248 Eric, Patty, controlled substances and will find an abuse of discretion if the chal- Robin even as their conditions worsened. lenged instruction incorrectly states the Schneider, See XIV R. 514-36. And Dr. law.”). governing We read and evaluate Schneider, help with the of Ms. submitted jury in light instructions of the entire rec- false and fraudulent claims to the insurers they “fairly, ord to determine if adequately for these services. See id. These claims and correctly state the governing law and were false and fraudulent because provide jury ample with an under- legitimate were not for medical services standing of applicable principles of law rendered. id. at A See reasonable and factual confronting issues them.” beyond factfinder could conclude a reason- Prot., Inc., Lederman v. Frontier Fire 685 able doubt that Dr. and Ms. Schneider’s (10th 1151, Cir.2012) F.3d 1154-55 (quot health care fraud scheme resulted ing Barrera-Gonzales, United States v. Eric, Patty, deaths of and Robin. Cir.1992)) (inter 952 F.2d we find the evidence sufficient to 1272 sustain omitted). the conviction and enhancement under nal quotation marks “We do not § 1347. instructions, determine whether the whole, flawless, are jury but whether the Appellee’s sup-

AFFIRMED. motion to in any way was misled and it had plement appeal the record on is DENIED. an understanding of duty the issues and its HOLMES, Judge, concurring, Circuit to decide those issues.” Brodie v. Gen. joined MARTINEZ, Part I.C Corp., Chem. F.3d Cir. District Judge. 1997) (citation omitted) (internal quotation join I majority’s opinion. much of the omitted). long marks charge So as the particular, fully join In I A B Parts and law, adequately whole states the portions of Part C not visited here. give particular requested refusal to in majority’s I also concur in the ultimate struction is not an abuse of discretion. ruling, affirming judg- the district court’s Inc., Roofing, States v. Suntar United ment. I separately my write to offer (10th Cir.1990). 897 F.2d thoughts regarding two of the Schneiders’ jury-instruction challenges and their claim objection When no has been made at that there was insufficient sup- evidence to trial, we review for plain instructions port their convictions for health-care fraud Sturm, error. See United States death, resulting in pursuant to 18 U.S.C. (10th Cir.2012). “Plain bolster, hope clarify 1347. I (i) (ii) error, error occurs when there is for, majority’s rulings foundation (in) plain, which affects the defen- these three matters. (iv) rights, dant’s substantial and which fairness, seriously integrity, affects the

I judicial public reputation proceedings.” A Lopez-Medina, United States v. (10th Cir.2010) (quoting We “review a district court’s decision to Ruiz-Terrazas, give a particular instruction for abuse States v.

1298 for court’s instructions Cir.2007)) (internal The district quotation

1199 omitted). are found Instruc- charges § 841 marks R., (Jury at 838^1 Vol. tions 20-23. B 2010). They fol- Instructions, July filed general the Schneiders’ format: I address here low the same illegally for instructions the elemental to ... dispensed Stephen Schneider First: under a controlled substance dispensing [individual]; to substances controlled 841(a)(1). Specifically, § U.S.C. know- acted Stephen Schneider Second: court that the district contend Schneiders intentionally; and ingly and that, in instructing the in not erred actions were Stephen Schneider’s Third: of this to convict the Schneiders order purposes medical legitimate not for offense, that Dr. Schneider it had to find medical professional course of the usual at controlled substances dispensed beyond the bounds of or were doing so with- knowledge that he was least practice. medical outside purpose or legitimate out guilty find Linda Schneider In order to practice. professional usual сourse of find that she aided you ... must Stephen abetted Schneider. (“CSA”) 23). (Instruction Act No. Substances at The Controlled au- “Except as part: in relevant provides, argue that the CSA’s The Schneiders it be subchapter, shall thorized “know- physician that a act requirement or in- any person knowingly unlawful for only not to intentionally” applies ingly or distribute, manufacture, ... tentionally sub- dispensing controlled the element of man- with intent to dispense, possess or or stance, requirement also to the but distribute, a con- ufacture, dispense, authorization be without dispensing such ” 21 U.S.C. trolled substance.... words, In other the CSA. under 841(a)(1). is exemption A physicians’ § physician contend Schneiders and related in the CSA’s definitions found prescription at least know that must exempted from To be regulations. legitimate pur- for a not “issued 841(a)(l)’s physician prohibitions, “act- physician was not pose,” and that acting as author- registered be must professional course of his ing the usual 822(b). 802(21), §§ See 21 U.S.C. ized. (SJS) Br. Aplt. Opening practice.” a controlled substance prescription “A legiti- must be issued for to be effective by an individual purpose mate medical usual course acting practitioner outset, clarify what helpful At the it is 21 C.F.R. professional practice.”

his 1306.04(a).1 by the Schneid- implicated issues are the two standards differences between Citing States v. Nel- rial our decision in United for, (10th Cir.2004), advocating "recognizing the son, worthy imagination,” we were "hesitant of our held that the limits assert that we have could make a difference” say that it never legitimate-medical-purpose and usual-course- applied. F.3d at 1231. "just which standard of-professional-practice ‍​‌‌​‌​​​‌‌‌​‌​​​‌​‌‌​​​‌​​​​​‌‌​‌​‌‌‌​​​‌‌‌​‌​‌​‍standards are address, appropriate, in dis- thing.” Although I saying ways the same two different arguments, cussing one Actually, the Schneiders Opening at 48 n. 13. Br. standards, any be- differences Although, Nel- both of the gone _ we have not that far. son, any appreciable are not of tween the two there was "considera- we observed that my analysis here. significance to were mate- to doubt” whether there ble room Notably, important it is in arguments. ers’ belief freedom of the human will and a viability of the highlight consequent ability duty and of the normal arguments does not turn on Schneiders’ individual to choose between and legitimate-medical-purpose added) (emphasis evil.” (quoting Moris usual-course-of-professional-prac- and the States, 246, 250, sette v. United 342 U.S. express tice standards are reflected (1952)) (internal 240, 96 S.Ct. L.Ed. 288 841(a)(1). § They terms of 21 are U.S.C. omitted)). quotation marks And that not. At least in the context of this case requirement mens rea Supreme circuit, gov- and under the law of this discerned in cases—specifi Court the two arguments contrary ernment’s to the are cally, a “knowing” mens rea—had to be misguided off-target. satisfied before the elements at issue could government legiti

The observes that the give rise to liability. criminal See X-Cite mate-medical-purpose and usual-course-of- Video, 78, ment 513 U.S. at 115 S.Ct. 464 are professional-practice standards not re (“[W]e ‘knowingly’ conclude that the term express in the of 21 flected terms U.S.C. § U.S.C.] 2252 extends both to [18 841(a)(1) standards, § and that these taken sexually explicit nature of the material and together, constitute no more than an ex age performers.”); to the Liparota, emption physicians and are not ele (“Absent 425, U.S. 105 S.Ct. 2084 841(a)(1). § Aplee. ments of See Br. indication of contrary purpose in the lan (SJS) government primarily at 18. The statute, or guage legislative history of the employs this observation in its efforts to 2024(b)(1) § we believe that re [7 U.S.C.] distinguish key Supreme two Court cases quires showing that the defendant knew upon rely—Liparota which the Schneiders by his conduct to be unauthorized statute States, v. United 471 U.S. 105 S.Ct. regulations.”). or (1985), 85 L.Ed.2d 434 and United government’s position appears The to be Video, Inc., States v. X-Citement 513 U.S. that, unlike in Liparo- the statutes at issue (1994). 115 S.Ct. 130 L.Ed.2d 372 Video, ta and X-Citement there are no Br. at 21-22. Aplee. See 841(a)(1) express embodying elements of cases, In those drawing upon well-set- upon the standards at issue here which to customary interpretive principles, tled and and, requirement append mens rea Supreme construed two criminal Court therefore, the Schneiders’ reliance this embodying require- statutes as rea mens Supreme precedent misplaced. Court is ment that was linked to certain substantive way, Put another as the rea- in question. elements of the statutes sons, legitimate-medical-pur- because Video, X-Citement 513 U.S. at pose usual-course-of-professional-prac- (noting respective “the presump- S.Ct. express tice standards are not elements of tions some form of scienter is to be 841(a)(1), Liparota and X-Citement Vid- implied in a criminal statute even if and, inapposite specifically, eo are more expressed, and that a statute is to be con- those cases do not militate favor of a fairly possible strued where so as to avoid government’s that it obli- conclusion is (em- questions” substantial constitutional act- gation to establish that added)); phasis Liparota, 471 U.S. at contrary knowingly ed at least to one or (“The 105 S.Ct. 2084 contention both of those standards. injury only can amount to a crime when however, government’s argument, by provincial intention is no inflicted misguided and off the mark for at least transient notion. It is as universal and First, persistent systems irrespective mature of law as two reasons. of the instruction and there- error possible legitimate-medical-purpose absence it.”). usual-course-of-professional-practice fore was bound of express the terms from standards legitimate-medical- the Consequently, 841(a)(1), instructions § have endorsed we usual-course-of-professional- purpose and in a government on the placing the burden ex- are tantamount to standards practice 841(a)(1) to physician a prosecution § of 841(a)(1), the § which elements of press that the doubt beyond a reasonable prove in its case-in- must address government at least one of not adhere to physician did thus remains question the chief. And See United States these standards. interpreted should be whether the statute (10th Nelson, Cir. 1231-32 383 F.3d prove to government require so as to 2004) (“We view is that the better conclude knowingly vio- at least that the Schneiders no error in the instruction. that there was so, standards; if at least one of these lated unlawfully has distributed practitioner A were error. court’s instructions the district prescribes if she controlled substance usual course either outside the substance legitimate practice or without of medical added)); ac purpose.” (emphasis medical and X- Drawing support Liparota from 622 F.2d Seelig, States v. cord United Video, urge us to the Schneiders Citement Cir.1980) (“[A] (6th conviction under in the Ninth Circuit adopt holding of 841(a)(1) to requires Feingold, United States beyond a reasonable doubt prove Cir.2006). Opening Br. outside the usual drugs were distributed (“The (SJS) cоnsiderations that at 39 same Indeed, professional practice.”). course in Supreme Court’s decisions animated stressing the curiously, in the context of X-Citement Video should Liparota and standards, status of these non-element adopt holding to lead this Court pertinent to Tenth Circuit

without citation Circuit.”). In the law of this Feingold as rec authority, government signals its that, in order to the court held Feingold, evidentiary bur that it bears the ognition gov- under physician convict a Aplee. Br. regarding den them. See alia, establish, that he inter ernment must (“[T]he government must at 20 to distribute the “acted with intent she prescriptions were not prove a doctor’s distribute them drugs and with intent to professional course of issued the usual professional prac- outside the course legitimate and for other than a (emphasis omit- 454 F.3d at 1008 tice.” ap prove to the statute purpose ted). doctor, any negate well as to plies to the record, However, I agree on this defense.”). good faith can find lit- majority: the Schneiders Second, precedent if our did not even tle, Feingold. As the any, if succor issue, object by failing to before settle the it, majоrity put the court’s instruc- the district court to because Feingold provides support little negate the fact that tion—requiring it nearly Feingold were the instructions legitimate med- acted with case, and in the instant identical to those pro- or in the usual course of purpose ical that the in- Feingold held the court government be- practice—the fessional jury to consid- “compelled the structions law of by bound the instructions as came ‍​‌‌​‌​​​‌‌‌​‌​​​‌​‌‌​​​‌​​​​​‌‌​‌​‌‌‌​​​‌‌‌​‌​‌​‍Bader, intended to defendant] See, [the er States v. e.g., the case. Cir.2012) the controlled substances distribute 881 n. 13 (“[T]he and wheth- purpose object legitimate government did not act within the usual struction would require er he intended to to reach practice.” professional course of diametrically opposite findings regarding (alteration whether Dr. Schneider acted in the usual Maj. Op. original) at 1295 1009). (quoting Feingold, professional practice 454 F.3d at course of in order to required even if the were him exculpate grounds (aided find that and abetted Dr. Schneider faith. The Schneiders claim that al- Schneider) knowingly acted outside Ms. leged wrought by error this instruction professional practice the usual course of plain and prejudicial. purposes that dispensed drugs for were legitimate following purposes, not 1 analysis Ninth I Feingold, Circuit’s objec Schneiders did not raise an given would conclude instructions tion to good-faith the district court’s in by the district court were not erroneous. Therefore, struction at trial. as Dr. underscore, however, I that we need acknowledges, Aplt. see Opening decide on this record whether fact there (SJS) Br. at 46 n. we review their is, requirement—that is such mens rea challenge good-faith to the instruction for prove whether the must that a see, error, Sturm, plain e.g., 673 F.3d at physician knowingly defendant at least vi- Significantly, for an error to be legitimate-medical-pur- olated either standard, “plain” under this it must be pose usual-course-of-professional-prac- “clear or obvious error.” United v. States point, majority tice standards. On this McGehee, 672 F.3d 876 Cir. agrees. Maj. atOp. (noting See 1295 2012); see United v. Cooper, States 654 require- “we need not decide mens rea (10th Cir.2011) F.3d 1117 (noting 841(a)(1)”). Therefore, ment under saying error is “means “plain,” reasons, foregoing majority, like the I (quot clear or оbvious under current law” reject challenge Schneiders’ to the Goode, ing v. United States 483 F.3d § 841 instructions. (10th Cir.2007)) (internal 681 quotation

C omitted)). marks I here challenge address the Schneiders’ jury The district court’s instruction on good-faith to the district court’s instruc- good faith reads as follows: that, by tion. The Schneiders contend ref- physician does not violate Section [A] erence to professional the “usual course of 841(a)(1) dispenses ... when he con- practice,” logically preclud- this instruction in good pa- trolled substance faith to a jury exculpating ed the from them on the tient in the usual course professional of brief, grounds good they of faith. In ar- practice. that, gue jury because the must find that “good The term faith” means the honest Dr. Schneider did not act in the usual good judgment exercise of professional professional practice course of to find them a patient’s as to medical needs. Good offenses, guilty of the 21 U.S.C. 841 this faith connotes an of conduct observance finding logically prevent jury would physician accordance with what exculpating grounds from also them on the reasonably proper should believe to be faith, good good-faith insofar as the practice. finding good instruction conditioned a (Instruction 27) R., 4, at Vol. No. upon faith a determination that Dr. added). (emphasis argue The Schneiders acting Schneider was in the usual course words, plainly wrong that this instruction is be- professional practice. In other Schneiders, good-faith reason the in- it to find that Dr. permitted cause Schneider, v. grounds well Ms. as on other States Guil- United Schneider—as Balleza, (5th Cir.2010); faith good his aider and abettor-—-acted lermo F.3d 432 was if the also concluded he only Williams, v. States United professional acting in the usual course of (11th Cir.2006), on other abrogated Br. practice. Opening Lewis, 492 grounds by United States (11th Cir.2007); States instead, (2d Cir.1986). jury Vamos, They contend that if it found have been instructed should Notably, example do not offer an faith, acting Dr. Schneider a favorable from a Su- such instruction acting also that he was then it should find preme Court or Tenth case. Circuit practice. professional in the usual course of summarily rejects The majority what succinctly The Schneiders state good-faith the Schneiders’ to the pur- they perceive to be thе effect of instruction, concluding that the Schneid ported error: too reading “parses er’s the instruction conditioning “good of faith” By finding a finely.” Maj. Op. I have no at 1296. finding Dr. upon a Schneider had I quarrel majority’s with the outcome. profession- “in the course of acted usual clarify only appropriate write to an founda court’s instruc- practice”, al district particular, it. In tion for for at least two guaranteed jury tion could not reasons, principal I would hold that Dr. acted conclude Schneider had in on prevail Schneiders’ cannot good faith. That the district is because plain-error they review cannot es because elemental for the Sec- court’s instruction tablish district court committed jury charges required tion clear or obvious error. not conclude Dr. Schneider had acting pro- “in of been the usual course ” practice.... fessional First, if good-faith even conditioning added). (emphasis According to the finding on a that Dr. finding Schneider “[tjhis Schneiders, instruction- [good-faith actually pro- acted in of the usual course deprived error Dr. Schneider Ms. al] [and practice fessional сould be considered er- defense, primary Schneider] of [their] by for the ror reasons articulated thereby affecting rights substantial [their] Schneiders, view, my in it have been would casting fair- upon serious doubt far from clear or to the district obvious Signifi- [their] trial.” Id. at 50. ness court that its instructions had this effect. cantly, if the instructions were as words, In other would the district court it, jury finding would have not have committed clear or obvious error good faith would be tantamount to a deter- error) (i.e., plain in using the instructions. that Dr. mination Schneider acted good The district court’s faith definition of and, professional practice usual course focusing read naturally could be as not thus, (and would absolve him Ms. Schneid- actually acted in Schneider er) liability of criminal on the practice, course of professional usual charges. rather whether find that but could Furthermore, argu- in support of their objectively held reason- Schneider ment, examples the Schneiders cite found acting. belief that he able was so circuit other court decisions of what instructed, regard, they In this the court good-faith view as correct instruc- faith of con- Armstrong, tions. Sеe United “Good connotes an observance States Cir.2008), abrogated physician duct accordance with what the objective reasonably proper to be favor of an one.2 See believe should (em- R., Williams, (“[The at 845 practice.” Vol. 445 F.3d at 1309 defen- added); Aplee. Br. phasis see also proposed dant’s] instruction fails to intro- (“The also overlook the at 31 defendants any objective duce standard which a paragraph fact that it is the second physician’s prescribing behavior can be instruction, upon, phrase not the seize judged.... proposed instruction ‘good faith’ the context of a that defines contrary Supreme Court’s deci- [the controlled sub- prescribing doctor Moore.”); Norris, sion United States v. in] stances.”). Therefore, reading under this (“The Cir.1986) instruction, good-faith of the court’s correctly rejected district court ... [the find that Dr. did jury could well proposed charge premised on defendant’s] actually act in the course of usual theory that a practice standard medical practice, exculpate him of professional but may subjective be based on an entirely liability grounds criminal he standard.”); Moore, at 142 n. 423 U.S. cf. that he acted with a reasonable belief (noting 96 S.Ct. 335 that “[t]he acting—viz., acquit so it could the Schneid- physician was instructed that defen- [the ers on the basis that Dr. Schneider acted could not if merely dant] be convicted he objectively reasonable faith. prescribe made ‘an honest effort’ way, it reading, Put another under this in compliance detoxification with an ac- “logically impossible,” would not have been ” (em- cepted standard medical assert, Aplt. Opening as the Schneiders added)). phasis (SJS) acquit Br. for the to the definitively I need not decide whether faith, good on the after Schneiders basis my interpretation import of the actually finding first Schneider good-faith court’s district instruction is in profes- failed to act the usual course of point correct. The determinative is that it practice. sional would not have been clear and obvious to such, As the instruction’s reference to good-faith the district court that its in- professional practice course of the usual reference to the struction’s usual course of have to simply would served ensure professional practice would have had the only acquit Dr. would allegedly impermissible effect of condition- (as well as Ms. Schneider as an aider and faith ing jury’s finding good on its abettor) faith, good when basis that Dr. act- determination Schneider was objectively there an reasonable basis professional ing in the usual course good-faith This purported for his conduct. court would practice. the district entirely would outcome have been consis- law, not have committed clear or obvious error re- tent with federal case which has jected subjective faith, using Accordingly, in on good a standard of instructions. “Although Notwithstanding important argue role that Dr. the Schneiders as follows: purported "good plays Schneider’s faith” Dr. Schneider allowed that some mistakes effort, made, exculpatory they may his the Schneiders’ fail to have been he testified that an alternative definition of the term. decisions were in fact motivated the desire offer They contemplate good help patients upon appear to a form of his and based his own judgments.” Opening primarily subjective. Br. faith that is at least The best medical added). (SJS) (emphases suggested government certainly way. at 50 As sees it this (SJS) ("[I]mplicit subjective Aplee. supra, in the a standard would not Br. at 32 such argument Aplee. appeal, and what be consistent with federal law. See defendants’ on below, requested (noting explicitly is a Br. at 32 that "the courts have the defendants uniformly rejected” subjective good-faith subjective standard faith instruc- standard). (citation omitted)). regard, tion. ...” In this with what doctor acted accordance challenge to the basis, the Schneiders’ prevail on medi- reasonably proper could believed to be instruction he

good-faith Vamos, review. at 1153 plain-error practice”); cal instruction (discussing good-faith that the Schneiders reason The second the doctor “means that indicates term any by the error establish cannot reasonably he in accord with what acted in concerning good-faith district court practice” proper more to be obvious is even believed was clear or struction have not that “an instruction holding fundamental. authority from our attention objective drawn standаrd of jury should use an the Tenth Circuit Supreme Court prac- deciding reasonableness instruc good-faith that has invalidated with what he be- titioner acted accord theory of error on a like the one here tion is not proper lieved to be See, e.g., advance. like the Schneiders error”). and does not amount improper DeChristopher, 695 F.3d United States reasons, Accordingly, for at least these two (“In Cir.2012) (10th general, outcome, I majority’s consistent with law, contrary to well-settled to be error would hold that the Schneiders’ or this court Supreme Court either review be- prevail plain-error cannot (quoting the issue.” must have addressed establish that dis- cause cannot Thornburgh, 645 F.3d States v. United er- trict court committed clear obvious Cir.2011)) (internal quota ror. omitted)); States v. marks tion Wardell, Cir. II 2009) “does not (noting that the defendant conten- I address here the Schneiders identify any Court or Tenth Cir Supreme evidence to tion that there was insufficient that have addressed” his cuit decisions resulting fraud convict them of health-care claim). Generally, such a constitutional death, pursuant to 18 U.S.C. on a claim will close the door circumstаnce or obvious. that the error at issue is clear A

Further, other circuits that the cases from directly on do cite are not the Schneiders sufficiency of the record for We review and, they speak to point insofar as See, e.g., the evidence de novo. United us, they actually appear matter before Wilson, 778 107 F.3d States path respect to follow a similar significant Cir.1997). sufficiency reviewing the When here, in an imposing court as the district verdict in a crimi underlying of evidence a objective good-faith de- standard case, if, viewing affirm all the nal we must See, Armstrong, 550 F.3d at e.g., fense. evidence direct and circumstantial that stating “[a] instruction (upholding 398 government, light most favorable to by a prescribed controlled substance fact would find the reasonable trier of profession- course of physician in the usual beyond crime essential elements of the therefore, lawfully, if the al and practice, See, e.g., States reasonable doubt. United by him or her prescribed substance is Inc., Roofing, v. Suntar faith, medically treating patient (10th Cir.1990); Culpep States v. of medical accordance with a standard Cir.1987). per, accepted generally recоgnized and omitted)); (emphasis in the United States” B Williams, (upholding at 1309 evidence argue that the The Schneiders language similar to instruction with support was insufficient here, presented faith” “means that stating “good jury’s finding any alleged illegal acts of “the drugs, distribution of which fraud were the any health-care cause of caused the deaths of patients.” three patient Aplt. Opening deaths. See Br. Generally speaking, quarrel I have no (SJS) at charged 51. Counts 7-9 majority’s response. However, il- just fraud, Schneiders not with health-care legal drugs—by distribution of physicians resulting but with health-care fraud in the non-physicians—may place quite take bodily injury/death serious of three indi- apart scheme, from a health-care fraud viduals—Patricia, Eric, and Robin. See is, without a nexus to a health-care 149-53; 1347(a). R., § Vol. at 18 U.S.C. circumstance, fraud scheme. In such a The district court instructed the resulting illegal deaths from drug distribu- you follows: “For to find that serious bodi- tion give could not rise to liability criminal ly injury or death resulted from the health Therefore, under to bolster the defendant, care fraud committed conclusion, majority’s I write to further prove beyond must a reason- define the contours of the nexus between able doubt the individual’s serious the Schneiders’ illegal drug distribution bodily injury or death was a result of the fraud; and their health-care it is that nex- alleged.” R., health care fraud Vol. us that permits the Schneiders to be held challenge 851. No has been raised to this accountable under 1347 for the deaths instruction on appeal. majority, Like the I individuals, Patricia, Eric, the three conclude that the sufficiency- Schneiders’ Robin. of-the-evidence is without merit. separately I write explicate appro-

priate foundation for such a holding. provides: Section 1347 “[tjhere The Schneiders claim that knowingly Whoever willfully exe- no presented evidence at trial that possibly cutes, execute, or attempts to a scheme could support the conclusion that [their] or artifice— n alleged fraud itself any was the cause of (1) to any defraud health care benefit harm to patient, let alone the cause program; or anyone’s death.” Opening Br. at 52. specifically, More the Schneiders (2) obtain, by means of false or fraud- argue that there was insufficient evidence pretensеs, ulent representations, support

to jury’s the verdicts on the promises, any money property of the or charges health-care fraud in Counts 7-9 by, custody owned or under the or con- because their alleged conduct in submit- of, any trol health care program, benefit ting bills to a health-care program benefits in connection with delivery the of or that contained false or misleading state- benefits, items, payment for health care ments or omissions was not itself the cause services, harm or shall any patients. of to at be fined under this title imprisoned or not years, more than 10 Like government, Aplee. see If or both. the ‍​‌‌​‌​​​‌‌‌​‌​​​‌​‌‌​​​‌​​​​​‌‌​‌​‌‌‌​​​‌‌‌​‌​‌​‍violation results in seri- 59, majority Br. retorts (as bodily injury ous defined in section Schneiders’ health-care fraud in- scheme title), 1365 of this person such shall be just volved more than the submission of imprisoned fined under this title or bills—viz., misleading false or than more both; years, more than 20 if or and just their “upcoding billing practices.” and death, Maj. Op. Instead, at violation results in such person reasons the majority, title, the fraudulent scheme impris- involved shall be fined under this or life, resulting § years cating for 1347 offense for of

oned term death). both. 1347(a).

18 U.S.C. testimony and the Schneiders’ Expert at trial their own records revealed ev presented sufficient The Patricia, Eric, and find, actions resulted Rob- trier fact to for a of idence reasonable prescription addicted to becoming in a first, engaged the Schneiders See, 3132, R., 13, at second, drugs. e.g., Vol. 3138- and, scheme health-care fraud 3181-82; 14, 39, R., Vol. at 516. As these three in the of this scheme resulted deaths worse, grew conditions patients’ Considering or analo similar individuals. was their response to escalate facts, a Schneider’s Circuit reached the Sixth gous drugs, eventually which led to prescription States very similar conclusion. See, R., e.g., deaths from overdoses. Martinez, 301, their F.3d Cir. 3181-82; R., at Vol. at 2009) (“[A] Vol. con jury could have rational 516-17, supports 525-35. evidence a fore [the victim’s] cluded that death was jury’s finding patients died these result health-care [defendant’s seeable their prolonged from treatment outside over-pre conduct. fraud] [Defendant] profes- the usual course of contrary and to to substances that led scribed controlled of treat- narcotics, practice—a pattern sional to and addiction [the victim’s] ment for Dr. Schnеider and Ms. which perform unneces continued [defendant] false Schneider submitted and fraudulent sary injections prescribe harmful med and programs. claims health-care benefit despite clear presence ications R., See, R., 3149-51; addiction.”). e.g., Vol. Vol. flags’ escalating Ted 14, at These claims were 531-35. false rul circuit courts also have issued Other because, alia, and inter fraudulent support ings under various rationales that were claims for services not rendered— the conclusion here. See United States viz., for reportedly the claims were Merrill, Cir. 1297-98 rendered in provision legitimate services 2008) (concluding that there sufficient professional practice, usual course re proof support 1347 conviction (aided in fact Dr. when where, alia, death, sulting inter Schneider) furnished ille- abetted Ms. “testimony documentary and the evidence gitimate prescriptions, services and con- mul demonstrated that wrote [defendant] trary to and outside of the usual course of tiple prescriptions for similar controlled professional practice. patient during for substances the same visit; Viewing light for prescriptions same that he wrote this evidence in the most very government, no or patients performed whom he favorable to the see Suntar physical Roofing, minimal and “that F.2d at examination” reasonable patients beyond whose factfinder conclude a reason- prescriptions he wrote could appearance should able doubt that Schneider and Ms. physical behavior ad involved in suspicion have raised were Schneider were a healthcare substances”); scheme; key component that a of it dicted controlled Unit fraud cf. Webb, 1238, 1246-47, provision out- ed States medical services (11th Cir.2011) professional prac- (detailing physi 1255-58 side the usual course through illegal illegitimate prescription-prescribing cian’s tice distribution of false or regard patient drugs—for to a who which fraudulent bills practices died, pro- rejecting connection with defen were submitted health-care benefit that, expli- provi- as a result of the grams; dant’s to a instruction services, sion of such medical three indi- (Patricia, Eric, Robin)

viduals died. reasons, foregoing for the like the

majority, reject I the Schneiders attack on sufficiency support of the evidence to

their 1347 convictions.

Ill

I concur in much of majority’s opin-

ion—fully joining Parts A and B and the

portions of Part notC visited here—and majority’s

also concur in the ultimate rul-

ing affirming the district judgment. court’s America,

UNITED STATES Of

Plaintiff-Appellee, RAY,

Austin Alan Defendant-

Appellant.

No. 11-3383.

United States Court of Appeals,

Tenth Circuit.

Feb.

Case Details

Case Name: United States v. Schneider

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Jan 16, 2013

Citation: 704 F.3d 1287

Docket Number: 10-3281

Court Abbreviation: 10th Cir.