                                                                                 FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                             FOR THE TENTH CIRCUIT                            July 31, 2017
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,
                                                            No. 15-1162
v.                                                (D.C. No. 1:13-CR-00218-JLK-2)
                                                             (D. Colo.)
KEITH SCHWARTZ, a/k/a Bernie Kype,

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before TYMKOVICH, Chief Judge, EBEL, and BACHARACH, Circuit Judges.
                 _________________________________

      Defendant Keith Schwartz operated a pain-management clinic that prescribed

opioids outside the usual course of medical practice. For his role in that operation, a

jury convicted Schwartz of various counts related to unlawful drug distribution and

money laundering, and the district court imposed a fifteen-year prison sentence.

Schwartz attacks both his convictions and sentence. He argues first that the jury was

irreparably tainted, even before the trial began, when the court accidentally revealed

that Schwartz had prior felony convictions. Next, he challenges several evidentiary

decisions by the district court. Finally, he takes issue with his sentence, which was



      *
        This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
based on all the pills dispensed by the clinic, rather than merely the number of pills

affirmatively proved to be illegitimate. We AFFIRM on all issues.



                                 I.   BACKGROUND

      A. Unlawful Distribution of Prescription Narcotics

      The operation began as a medical marijuana business in 2009, with Schwartz

managing the business and Dr. Joseph Ferrara writing the medical marijuana

prescriptions. In May 2011, however, a new opportunity presented itself. Another

physician, Dr. Kevin Clemmer, had recently been arrested for unlawfully distributing

prescription drugs as part of his pain-management practice. Schwartz then took over

the practice, including Clemmer’s former patient base, and transitioned the focus of

his business from medical marijuana to prescription narcotics. Schwartz remained

manager of the practice and Ferrara was responsible for seeing patients and writing

prescriptions.

      To kick off the new practice, Schwartz arranged for his staff to meet with

Clemmer’s former patients in a hotel conference room. That day was described as

“chaos,” as Ferrara prescribed over 5,000 dosage units to patients, most of whom

received new prescriptions even though some did not bring their medical records and

Schwartz’s team did not have any of the records from Clemmer’s office. Over the

course of the next year and a half, Ferrara prescribed around 500,000 pills of

Oxycodone, around four times the typical volume for a pain-management practice



                                               2
with three or four providers. As the district court put it, the operation was “a pill

mill, pure and simple.” Vol. III at 2630.

       The jury found that Schwartz’s pain-management practice was in fact an

illegal drug-distribution operation because it issued prescriptions outside the usual

course of medical practice.1 Not only did the practice dispense opioids at a volume

significantly higher than the national standard for safe consumption, it did so

sometimes without obtaining full medical records or conducting adequate patient

evaluations. Further, the practice prescribed pills while ignoring its own policies for

monitoring drug abuse by its patients, overlooking positive drug screens and

prescribing pills anyway, and disregarding indicators of addictive behavior. During

this time period, two patients who had exhibited severe drug-seeking behavior died of

drug-overdose while under the care of Schwartz’s clinic.2

       The United States indicted Schwartz for conspiracy to distribute controlled

substances, unlawful distribution of those substances, using a telephone to facilitate

the conspiracy, money laundering, and conspiracy to commit money laundering. A

jury trial ensued.


1
 Distributing a controlled substance is illegal unless the distributor is a physician
prescribing such substances in the usual course of medical practice. See United States
v. Moore, 432 U.S. 122, 124 (1975); 21 C.F.R. § 1306.04. So the question at trial
was whether the pain-management practice conformed to standard, accepted medical
norms.
2
  The United States did not ultimately allege that the patients died because of
Schwartz’s unlawful conduct, and the jury received a limiting instruction cautioning
them not to infer such causation.

                                               3
      B. Pre-Trial Jury Instructions

      After jury voir dire, the newly selected jurors left the courtroom at 10:17 a.m.

on the morning of trial. The court then recessed from 10:20 to 10:49 a.m. Sometime

either during that recess or immediately after court reconvened, the district judge

gave the jurors a written copy of the jury instructions and began reading those

instructions aloud. In the jury packet, however, the district court had inadvertently

and improperly included two instructions that were previously prepared by the parties

for use after trial. First, Instruction No. 16 begins: “You have heard evidence that

Keith Schwartz has been convicted of a felony, that is, a crime punishable by

imprisonment for a term of years.” Vol. I at 653 (emphasis added). Second,

Instruction No. 19 begins: “You have heard evidence of other crimes, wrongs or acts

engaged in by Mr. Schwartz.” Vol. 1 at 655 (emphasis added).

      The district court did not notice its mistake until after it began to read aloud

from Instruction No. 16 when it said, “You have heard evidence that Keith

Schwartz—this shouldn’t be in here.” Vol. III at 45. The district judge then had the

courtroom deputy retrieve that instruction from the jurors and directed the jury to

“disregard this instruction entirely.” Id. The court continued reading until it reached

Instruction No. 19 and stated, “You will hear evidence of other crimes— . . . .” Id. at

46. The judge again paused, told the jury to “disregard” the instruction and had the

deputy remove it. Id. It is not clear from the record whether any jurors actually read

the instructions contemporaneously with the district court’s out-loud articulation, but



                                               4
Schwartz’s counsel stated he believed that thirty to sixty seconds elapsed before the

deputy retrieved the erroneous instructions from the jurors.

      After the jury was dismissed, Schwartz’s counsel moved for a mistrial based

on the erroneous inclusion of these instructions. Satisfied that its curative efforts

were sufficient to mitigate any prejudice caused by the mistake, the district court

denied the mistrial motion. After the trial, Schwartz asked for a new trial on the

same grounds, but the district court denied the new-trial request.

      C. Trial Testimony

      During the trial, the court admitted testimony on three subjects which

Schwartz now challenges on appeal. First, Schwartz contends that the testimony

regarding the deceased patients was improper evidence of prior bad acts and also

impermissibly prejudiced the jury. Second, Schwartz argues that the testimony

regarding the precursor medical marijuana business should have been excluded

because it was impermissible evidence of prior bad acts and excessively prejudicial.

Third, Schwartz challenges the admission of testimony from his ex-wife, Lauren

Schwartz (Lauren), whom the government called as a witness. After cross-

examination by the defense, the government proceeded on redirect examination to

impeach Lauren, attempting to show that she did not know Schwartz as well as she

purported to know him. The government asked Lauren if she knew about Schwartz’s

criminal history, listing a series of offenses for which Schwartz had previously been

charged. This line of questioning asked only about “charged” offenses, not



                                               5
convictions. Schwartz asserts on appeal that this testimony was impermissible

evidence of prior bad acts, as well as improper impeachment.

      D. Sentencing

      After an eleven-day trial, the jury convicted Schwartz of various counts. At

sentencing the district court calculated the offense level under the Sentencing

Guidelines based on the weight of the total volume of prescribed pills. Schwartz

objected on the ground that the calculation should have included only those

prescriptions which the government affirmatively proved to be illegitimate.

However, the district court disagreed, holding that all prescriptions written during the

course of the conspiracy were illegal because the entire enterprise was illegal, and

any activity that furthered the criminal enterprise was relevant conduct for the

calculation of the sentence. The district court then arrived at a guideline range of 360

months to life, but varied downward and sentenced Schwartz to 180 months’

imprisonment.



                                 II.    DISCUSSION

   A. Pretrial Inclusion of Instructions on Prior Felony Convictions in Juror
      Notebooks

      The principal issue in this appeal is whether the district court abused its

discretion in denying a mistrial or new trial after inadvertently informing the jury

about Schwartz’s previous wrongful acts and a prior felony conviction. We conclude




                                               6
that the inclusion of these pre-trial jury instructions was harmless, so the district

court did not abuse its discretion in denying a mistrial or new trial.

      The Tenth Circuit has developed two competing standards for determining the

impact of exposure to extraneous material on a jury. Smith v. Ingersoll-Rand Co.,

214 F.3d 1235, 1241 (10th Cir. 2000). Under the first approach, a new trial is

warranted when the aggrieved party shows that there is the slightest possibility that

the exposure affected the verdict. Id. According to the second standard, however, a

court will presume prejudice and grant a new trial unless the government can show

the exposure was harmless. Id. The primary difference between these conflicting

approaches lies in which party has the initial burden of proof. Id. at 1241-42.

      There may be some future occasion to resolve this intra-circuit tension, but not

today. We have repeatedly declined to resolve this conflict in cases where its

resolution would make no difference in the outcome. United States v. Muessig, 427

F.3d 856, 865 (10th Cir. 2005) (“[W]e need not resolve these different approaches in

this appeal” because “[u]nder either standard, we find that the exposure here was

harmless.”); Ingersoll-Rand, 214 F.3d at 1242 (“Having identified this bifurcation in

our case law, judicial discretion dictates that we leave its ultimate resolution for

another day.”). Once again, it is not necessary for this panel to choose which

articulation to follow because the outcome of this case does not depend on which rule

applies. Therefore, as in both Ingersoll-Rand and Muessig, we decline to resolve this

uncertainty.



                                                7
      Under either standard, in determining the harmlessness of extraneous material

revealed to a jury, we require the trial court to assess the possibility of prejudice by

‘reviewing the entire record, analyzing the substance of the extrinsic evidence, and

comparing it to that information of which the jurors were properly aware.’”

Ingersoll-Rand, 214 F.3d at 1242 (quoting United States v. Hornung, 848 F.2d 1040,

1045 (10th Cir. 1988)). After reviewing this record and examining the district

court’s decision for abuse of discretion, United States v. Morgan, 748 F.3d 1024,

1041 (10th Cir. 2014), we determine that the inadvertent inclusion of these pre-trial

jury instructions was harmless.3

      At the outset, we presume the jurors here read the extraneous jury instructions

either as the district judge read them aloud or beforehand. The record does not

establish precisely when the jurors received the booklet of written instructions—it

could have been during the recess or immediately thereafter. However, the record

does suggest that up to a full minute may have elapsed after the district court called

attention to its mistake before the courtroom deputy retrieved the erroneous

3
  Schwartz contends this was structural error because revealing his criminal history
deprived him of his presumption of innocence. Structural error would mandate
reversal without any inquiry into harmlessness. But we do not characterize this error
as structural—or even constitutional—simply because it involved the revelation to
the jury of past criminal conduct. Our case law instead requires us to analyze the
harmlessness of revealing to a jury prior felony convictions of the defendant. See
United States v. Wacker, 72 F.3d 1453, 1471-74 (10th Cir. 1995) (finding the
disclosure of the details of prior convictions to be harmless in light of the
overwhelming evidence of guilt); United States v. Hall, 625 F.3d 673, 681-82 (10th
Cir. 2010) (finding the disclosure of prior convictions during jury voir dire to be
harmless). Because we are not aware of any case to the contrary, we reject the
invitation to deem this structural error.

                                                8
instructions from the jurors, during which time the improper instructions were in the

jurors’ possession. That is enough time for at least one curious juror to look down

and see what all the fuss was about, and then read the extraneous instructions in their

entirety.

       Even assuming the jurors did read the erroneous instructions, that exposure

was harmless on this record. As for Instruction No. 19, which stated that Schwartz

had engaged in “other crimes, wrongs or acts,” that information was admitted

properly later in the trial when the government elicited evidence of Schwartz’s prior

criminal charges, and the district court in fact read aloud the exact same instruction

post-trial without any objection by Schwartz. Thus, Instruction No. 19 was not really

“extraneous” at all—it did not reveal anything that the jury was not already going to

hear. Thus, the erroneous inclusion of Instruction No. 19 was harmless.

       Instruction No. 16, which stated Schwartz had been “convicted of a felony,”

was also harmless because of various mitigating considerations, as well as the ample

evidence of Schwartz’s guilt. Prejudice was mitigated in several ways. First, the

district court offered several curative instructions which juries are presumed to

follow. Morgan, 748 F.3d at 1041-42. When the district court initially discovered its

mistake, it expressly directed the jury to disregard the error. At the end of the trial,

the court again instructed the jury to “completely ignore” everything that the judge

had earlier ordered them to disregard. Vol. III at 2177. And before dismissing the

jury, the district court individually polled each juror to ensure that the verdicts were

not based on any information which they were ordered to disregard.

                                                9
      Second, the jury’s exposure to this material was “one short moment” in an

eleven-day trial. See Morgan, 748 F.3d at 1041 (upholding the denial of a mistrial

when the jury’s potential exposure was “one short moment in a seven-day trial”).

Third, because this error occurred before opening statements, the jury here likely

lacked sufficient context for the mistake to make any lasting prejudicial impression.

At that point, no evidence had been presented, the parties’ narratives had not been

told, and deliberation did not begin for another two weeks. Fourth, any potential

prejudice was at least mitigated, even if not extinguished, when the jury later heard

evidence about Schwartz’s prior criminal charges, and the incremental impact of an

unspecified conviction is not sufficiently prejudicial for us to find an abuse of

discretion in denying the motions for mistrial and new trial.

      In addition to these mitigating considerations, the substantial evidence of

Schwartz’s guilt presented at trial confirms our conclusion that this error was

harmless. There was ample evidence that Schwartz was knowingly distributing

controlled substances outside the usual course of medical practice. To begin, he

kicked off his pain-management clinic by taking over the patient base of a doctor

who was arrested for unlawfully distributing pain pills. Then the practice prescribed

pain pills sometimes without adequate medical records or patient evaluations and to

some patients who failed drug tests. On occasion, the clinic ignored signs of drug

addiction and prescribed pills anyway, and then further failed to monitor patients for

drug abuse. Furthermore, the clinic dispensed opioids at a volume far exceeding the

normal amount for a typical pain-management practice.

                                              10
       With this evidence of guilt, coupled with the various factors that would have

alleviated any prejudice, we find that the erroneous inclusion of these jury

instructions was harmless.

   B. Admission of Testimony Regarding Deceased Patients, Precursor
      Marijuana Operations, and Prior Criminal Charges

       We turn next to Schwartz’s evidentiary challenges to testimony admitted

during trial. On appeal, he challenges the admission of testimony addressing:

(1) patients who died while under his clinic’s care; (2) the precursor medical

marijuana operation; and (3) his prior criminal charges. Reviewing evidentiary

rulings such as these for abuse of discretion, e.g., United States v, McGlothlin, 705

F.3d 1254, 1260 (10th Cir. 2013), we address each subject in turn.

          1. Deceased Patients

       Schwartz contends that the evidence of deceased patients violated Rules

404(b) and 403 of the Federal Rules of Evidence. Rule 404(b) bars the admission of

prior bad acts to show that a person acted in accordance with a particular character

trait. Fed. R. Evid. 404(b). More generally, Rule 403 permits a court to exclude

evidence that is substantially more prejudicial than probative. Fed. R. Evid. 403.

       As an initial matter, Schwartz waived his argument under Rule 404(b) by

failing to preserve it in the district court, and then by neglecting to argue for the

application of plain error on appeal. See United States v. Fisher, 805 F.3d 982, 992

(10th Cir. 2015) (finding a new appellate argument waived when the party failed to

argue for the application of plain-error review). Furthermore, even if this argument


                                               11
were not waived, it is does not overcome plain-error review because the admission of

this evidence was not plainly erroneous. Rule 404(b) does not preclude the

admission of other-act testimony when the other act is intrinsic to the charged

offense. See, e.g., United States v. Kupfer, 797 F.3d 1233, 1238 (10th Cir. 2015).

We have sometimes referred to this principle as res gestae—evidence that is “part

and parcel of the proof of the offense charged in the indictment.” United States v.

Ford, 613 F.3d 1263, 1267 (10th Cir. 2010) In this case, the testimony regarding the

deceased patients was inextricably connected to the charged offenses because it was

offered to help prove that prescriptions written to those patients were unlawful and

not consistent with accepted medical norms. Thus the Rule 404(b) argument fails.

      Schwartz’s Rule 403 argument, although not waived or forfeited, shares a

similar fate. Evidence of patient deaths was probative of the conspirators’ wanton

disregard for the drug-abusive tendencies of its patients. It showed that Schwartz

knew that the clinic’s patients were misusing their prescriptions, yet the practice

continued to prescribe opioids in irresponsible ways. Furthermore, it is not unfairly

prejudicial for the jury to know the consequences of a defendant’s criminal behavior,

especially when the district court gave a limiting instruction before and after trial,

thereby alleviating any prejudicial effect.4 We thus cannot say that the district court

went beyond its wide range of discretion in admitting this evidence.


4
 The limiting instruction provided: “You may consider evidence of these deaths in
your determination of whether the Government has proven the existence of a
conspiracy to distribute controlled substances beyond the scope of professional
practice and for a purpose other than a legitimate medical purpose beyond a
                                               12
          2. Precursor Marijuana Operation

      Schwartz argues similarly that the testimony regarding his precursor medical

marijuana operation violated Rules 404(b) and 403. We do not agree. Again, this

argument is waived because Schwartz did not object below and failed to argue on

appeal for the application of plain error. Fisher, 805 F.3d at 992. Even if not

waived, this argument is especially weak on the merits and thus cannot overcome

plain-error review.

      The Rule 404(b) charge fails because the medical marijuana operation itself

was part of the specified unlawful activity underlying the money-laundering

conspiracy charge. It was thus not evidence of “other acts,” but rather evidence of

acts that are part of the charge of conviction. As for the Rule 403 challenge, that too

fails because the evidence was not sufficiently prejudicial. The jury was informed

that Schwartz’ medical marijuana operation was legal under state law, and again was

probative of the money-laundering charges. We thus find no plain error with respect

to these challenges.

          3. Prior Criminal Charges

      Again under Rule 404(b), Schwartz challenges the admission of his prior

criminal charges during the government’s redirect examination of his ex-wife Lauren.

The government called Lauren as its own witness, and Schwartz’s counsel cross-

examined her. During cross-examination, Lauren testified that Schwartz believed it

reasonable doubt. You may not consider whether the deaths of [these patients] were
caused by the ingestion of controlled substances.” Vol. III at 43-44 (emphasis
added); accord id. at 2181.
                                              13
was important to do things “right” and “proper,” Vol. III at 1325, would consult with

lawyers to understand the legal aspects of his business ventures, and made efforts to

understand applicable laws and regulations. On re-direct examination, the

government questioned Lauren about how well she truly knew her ex-husband’s

tendency to follow the law. The government asked whether she knew about a series

of prior criminal charges including grand larceny, grand theft felony, making a false

or fraudulent insurance claim, and bank fraud felony. Lauren disclaimed awareness

about most of these charges.

       We reject Schwartz’s Rule 404(b) challenge because that rule does not apply

to impeachment evidence. E.g., United States v. Watson, 766 F.3d 1219, 1245 (10th

Cir. 2014). The testimony of Schwartz’s prior criminal charges was not elicited as

substantive evidence to establish a fact in issue, but rather as impeachment evidence

to challenge Lauren’s credibility—it showed either that Lauren’s testimony was

overstated or that her knowledge of her ex-husband’s law-abiding nature was more

limited than she believed.

       Further, there was nothing improper about this impeachment evidence.

Questioning Lauren about her awareness of her husband’s criminal past could have

cast doubt on her earlier statements that she knew her ex-husband tended to follow

the law. And even if this criminal history were somewhat prejudicial, the district

court did not abuse its significant discretion in finding that the prejudicial effect did

not “substantially outweigh[]” the testimony’s probative value. Fed. R. Evid. 403.

We thus decline to disturb the district court’s exercise of its discretion in this matter.

                                               14
   C. Calculation of Sentencing Guideline Range Based on Prescribed Pills

      The district court calculated the sentencing guideline range based on all the

pills prescribed by Ferrara through the pain-management clinic, rather than only

those pills which the government affirmatively proved to be illegitimately prescribed.

Schwartz contends that even if some prescriptions were unlawful, some were not, and

the district court cannot extrapolate from a snapshot of evidence about a few patients

whose treatment regimens were analyzed at trial.

      But the entire volume of pills were included not based on some inference that

they all must have been illegitimately prescribed, but rather because the entire

operation was illegal and operating outside of the usual course of medical practice, so

none of the prescriptions could have been legitimate. In other words, the district

court found that each individual prescription—even the lawful ones—advanced the

criminal enterprise and furthered the conspiracy to operate a sham pain-management

clinic. Reviewing the district court’s factual finding for clear error, United States v.

Sells, 541 F.3d 1227, 1235 (10th Cir. 2008), we conclude the district court did not

clearly err in attributing the entire volume of prescribed pills to Schwartz for the

purpose of calculating the sentencing guideline range.

                                III.   CONCLUSION

      For the foregoing reasons, we AFFIRM the district court on all issues.


                                                       Entered for the Court

                                                       David M. Ebel
                                                       Circuit Judge

                                               15
United States v. Schwartz, No. 15-1162
BACHARACH, J., dissenting.


      At the start of Mr. Keith Schwartz’s trial, the district court

inadvertently provided the jury with an erroneous jury instruction. The

instruction said that the jury had heard evidence that Keith Schwartz had

previously been convicted of a felony. There was no such evidence

presented, and Mr. Schwartz moved for a mistrial. This motion was denied.

      Mr. Schwartz appeals that ruling. In this appeal the parties agree that

the instruction was erroneous, but they disagree over the instruction’s

harmfulness. In my view, the erroneous instruction was deeply prejudicial,

rendering the denial of a mistrial an abuse of discretion. Thus, I would

reverse the conviction.

I.    The district court erroneously instructed the jury that evidence
      showed that Mr. Schwartz was a convicted felon.

      Mr. Schwartz managed a pain management center, where a doctor

prescribed opioids and other drugs for patients. The government prosecuted

Mr. Schwartz, alleging that the center served as an unlawful pill mill. The

case went to trial.

      After swearing in the jurors, the court took a 29-minute recess.

During this recess, the court provided each juror with a packet of jury

instructions. Unbeknownst to the court, however, the packets contained an
instruction that had been included by mistake. 1 The first sentence of the

instruction stated: “You have heard evidence that Keith Schwartz has been

convicted of a felony, that is, a crime punishable by imprisonment for a

term of years.” See R. vol. I, at 653; R. vol. III, at 45. 2

      After the recess ended, the court read aloud many of the jury

instructions. When the court began reading the instruction about evidence

of a prior felony conviction, the court realized that this instruction had

been mistakenly included. The court stopped reading, asked the courtroom

deputy to collect all copies of this instruction, and instructed the jurors to

disregard the instruction.

      Mr. Schwartz moved for a mistrial, arguing that the instructional

error had prejudiced the jury. The court acknowledged the strength of Mr.

Schwartz’s argument but denied the motion for a mistrial. Ultimately, no

evidence of a prior felony conviction was ever admitted.




1
      A second jury instruction was also inadvertently included in the
packet. The first sentence of this jury instruction referred to “evidence of
other crimes, wrongs or acts engaged in by Mr. Schwartz.” R. vol. I, at
655; see R. vol. III, at 46. Before the jury deliberated, this instruction was
read without objection. Thus, for the sake of argument, I assume that any
error related to this jury instruction would have been harmless.
2
     Like the majority, I presume that the jurors read this instruction.
Maj. Op. at 8.

                                           2
II.   The instructional error prejudiced the jury.

      On appeal, Mr. Schwartz argues that he was entitled to a mistrial,

and I agree. 3 Little doubt exists regarding the existence of an error, and the

majority acknowledges that the instruction was erroneous. The only real

issue is whether the error was prejudicial. I believe it was, for the jury

instruction created the devastating impression that there was evidence of a

prior felony conviction. See Alan D. Hornstein, Between Rock and a Hard

Place: The Right to Testify and Impeachment by Prior Conviction, 42 Vill.

L. Rev. 1, 1 (1997) (“If the jury learns that a defendant previously has

been convicted of a crime, the probability of conviction increases

dramatically.”); L. Timothy Perrin, Pricking Boils, Preserving Error: On

the Horns of a Dilemma After Ohler v. United States, 34 U.C. Davis L.

Rev. 615, 651-52 (2001) (stating that “the admission at trial of a criminal

defendant’s prior convictions often spells doom for a criminal defendant”

and that “[t]he available empirical data demonstrate that the admission of a

prior conviction has an explosive impact on the jury, substantially

increasing the likelihood that the jury will convict the defendant of the

charged crime”). This impression tainted everything that the jury heard and

saw over the course of the 11-day trial.



3
    Because I would reverse on this ground, I do not analyze Mr.
Schwartz’s other appeal points.

                                           3
III.   The Standard of Review and the Conflicting Standards for
       Whether a Mistrial Is Appropriate

       The district court denied Mr. Schwartz’s motion for a mistrial. That

denial is reviewed for an abuse of discretion. United States v. Morgan, 748

F.3d 1024, 1041 (10th Cir. 2014).

       Both parties agree that the court should not have given the jury

instruction. The resulting issue is whether the district court abused its

discretion by denying Mr. Schwartz’s motion for a mistrial. On that issue,

the government and the majority conclude that the denial of a mistrial fell

within the district court’s discretion because the error had been harmless.

       The majority approaches harmlessness based on our case law

involving exposure to extraneous information. I agree with this approach,

for the jury instruction exposed the jury to information that was never

presented in any of the evidence.

       In assessing whether the jury’s exposure to extraneous information

was harmless, permitting the denial of a mistrial, we have employed two

different standards. United States v. Muessig, 427 F.3d 856, 865 (10th Cir.

2005). Under the first standard, a mistrial is appropriate upon the

“slightest possibility” that exposure to the extraneous information affected

the verdict. Id. For this standard, the moving party bears the burden of

proof. See id. Under the second standard, the jury’s exposure to extraneous

information creates a presumption of prejudice. Id. But the nonmovant may


                                         4
rebut this presumption by showing that the exposure was harmless. Id. In

my view, the instructional error could not be deemed harmless under either

standard.

IV.   The Government’s Harmlessness Argument

      The government argues that

           the jury was exposed to the erroneous instruction for only a
            short period of time,

           the instructional error was rendered harmless by events
            unfolding at trial, and

           a poll following the verdict indicated that the error was
            harmless.

I would reject these arguments.

      A.    The duration of the erroneous exposure was sufficient to
            cause prejudice.

      The government contends that the error in this case was harmless

because the jury’s exposure to the erroneous instruction “‘lasted mere

seconds.’” Appellee’s Ans. Br. at 17 (citation omitted); accord Maj. Op. at

10. For support, the government cites United States v. Morgan, 748 F.3d

1024 (10th Cir. 2014). There we held that allegedly prejudicial testimony

was harmless, noting that the “testimony was one short moment in a seven-

day trial.” Morgan, 748 F.3d at 1041. I would reject the government’s

argument both as a matter of fact and as a matter of law.

      First, as a factual matter, the exposure here did not necessarily

transpire over just a few seconds. The record does not state exactly when
                                         5
the jury was provided with the instruction packet; the record reveals only

that the jury obtained the packet at some point during the recess. That

recess lasted 29 minutes, during which the jury may have perused the

contents of the packets.

      Second, even if the jury had seen the instruction for only a few

seconds, this would be only one factor to consider. The Morgan court

relied on the combination of multiple factors, only one of which was the

temporal length of the erroneous exposure. Id. at 1041-42. As discussed

below, the unique facts of our case magnified the potential for prejudice.

Based on these facts, I would find prejudice even if the duration of the

exposure had lasted only a short period of time.

      B.    The curative instructions and the questioning of Mr.
            Schwartz’s ex-wife did not render the instructional error
            harmless.

      In the government’s view, the instructional error was rendered

harmless by the district court’s curative instructions and the government’s

questioning of Mr. Schwartz’s ex-wife, which suggested that Mr. Schwartz

had previously faced felony charges. I disagree.

      1.    The Curative Instructions

      The government contends that the district court cured the error by

telling the jury to disregard the erroneous instruction, adding that at other

points during the trial, the court instructed the jury to ignore anything that

it had been told to disregard.

                                          6
      We ordinarily presume that juries follow instructions like these.

United States v. Morgan, 748 F.3d 1024, 1042 (10th Cir. 2014). And as a

general rule, these kinds of instructions are sufficient to avert prejudice.

Id. at 1041-42. But there is a limit to what instructions can cure: “[W]here

the character of [extrinsic evidence] is such that it will create so strong an

impression on the minds of the jurors that they will be unable to disregard

it in their consideration of the case, although admonished to do so, a

mistrial should be ordered.” See Maestas v. United States, 341 F.2d 493,

496 (10th Cir. 1965).

      For instance, in Maestas v. United States, we held that curative

instructions were insufficient when the jury was exposed to the fact that

the defendant had previously been imprisoned. 341 F.3d at 495-97.

Maestas mirrors the present case and indicates that the curative

instructions here were insufficient.

      In Maestas, a governmental informant gave a nonresponsive answer

in cross-examination, revealing that the defendant had previously been

imprisoned. The defendant immediately moved for a mistrial. Id. at 495.

The district court overruled the motion, struck the nonresponsive answer,

and instructed the jury to disregard the answer. Id.

      Shortly thereafter, the informant gave another nonresponsive answer,

again revealing that the defendant had been imprisoned. Id. at 495-96.

Again, the defendant unsuccessfully moved for a mistrial; but the court

                                          7
again struck the nonresponsive answer and instructed the jury to disregard

the answer. Id. at 496.

      On appeal, we held that the district court had abused its discretion in

refusing to grant a mistrial. Id. at 496-97. We reasoned that the jury must

have been prejudiced by the informant’s unresponsive answers. Id. at 496.

We acknowledged the two curative instructions, but concluded that they

could not have prevented the prejudice. Id. at 495-97.

      The prejudice here is even greater than it was in Maestas. There the

prejudicial information came from a governmental informant in the midst

of the trial. Here the prejudicial information came at the start of the trial

from the court itself. These differences magnify the impact of the prejudice

in our case. Thus, Maestas would prevent reliance on the curative

instructions to avert the prejudice to Mr. Schwartz. 4




4
      In Maestas, the informant provided the jury with the extraneous
information at two separate times. See pp. 7-8. But that fact does not
distinguish Maestas from our case. As noted above, the jury here was
provided with the erroneous instruction during the recess and could have
read the instruction at least once. Then, the jurors could have read the
instruction a second time when following along as the judge read the
instructions aloud. Finally, after the judge announced that the instruction
was to be collected, any juror whose curiosity had been aroused could have
looked down and read the instruction for a third time. Thus, the jury could
have been exposed to the improper information multiple times.


                                          8
     a.    The instructional error occurred at the start of Mr.
           Schwartz’s trial.

     The timing of the prejudicial information here differs from the timing

in Maestas. The jurors in Maestas were initially able to impartially

evaluate the evidence against the defendant. Problems arose only after the

jurors learned that the defendant had served time in prison. From that point

on, the prejudicial information tainted everything that the jurors saw and

heard.

     By contrast, the instructional error here occurred before the jury had

even heard opening statements. The jury’s first impression of Mr. Schwartz

involved supposed evidence that he was a convicted felon. From the

beginning, this prejudicial misinformation cast a shadow over everything

that the jury saw and heard.

     Scholarship confirms that this sort of first impression was

particularly prejudicial. For example, scholars have recognized that

individuals generally assign disproportionate weight to what they learn

first. See Lawrence S. Wrightsman, The Place of Primacy in Persuading

Jurors: Timing of Judges’ Instructions and Impact of Opening Statements,

8 U. Bridgeport L. Rev. 431, 432 (1987) (“Social psychologists have

recognized for a long time the importance of early information in the

formation and maintenance of the impressions of others.”). Jurors are no

exception. The jurors’ initial information about a defendant frequently


                                        9
bears significantly on the outcome. See id. at 431 (arguing, based on

studies, “that early information is very important in forming jurors’

impressions of guilt or responsibility in trials and suits”). 5

      In addition, scholars have recognized that a juror’s mood, focus, and

energy level normally change over the course of a trial. At the outset,

jurors are generally “anxious, curious, receptive, and looking for someone

to trust.” Michael Frost, Ethos, Pathos & Legal Audience, 99 Dick. L. Rev.

85, 111 (1994); see Thomas A. Mauet, Fundamentals of Trial Techniques

42 (3rd ed. 1992); Ronald L. Carlson & Edward J. Imwinkelried, Dynamics

of Trial Practice: Problems and Materials 110 (3rd ed. 2002). At this

point, jurors “are also more likely to be interested and attentive.” Michael

Frost, Ethos, Pathos & Legal Audience, 99 Dick. L. Rev. 85, 112 (1994);

see Ronald L. Carlson & Edward J. Imwinkelried, Dynamics of Trial

Practice 110 (3d ed. 2002).

      But as the trial continues, the jurors’ focus and energy will generally

decrease. By the end of the trial, the jurors “will be tired, perhaps bored,

and occasionally confused.” Michael Frost, Ethos, Pathos & Legal

Audience, 99 Dick. L. Rev. 85, 112 (1994); see Lawrence S. Wrightsman,

The Place of Primacy in Persuading Jurors: Timing of Judges’ Instructions


5
       The district court acknowledged this tendency, telling the jurors that
“[i]t’s a natural tendency to develop an impression and then stay with it as
you go along.” R. vol. III, at 11.

                                          10
and Impact of Opening Statements, 8 U. Bridgeport L. Rev. 431, 432

(1989) (“When observing a time-consuming event like a trial, attention

tends to decrease over time because of such factors as boredom,

distraction, fatigue, or simply an overload of information.”). In this case,

the trial lasted eleven days; the jurors were presumably the most focused,

receptive, and energetic at the start, precisely when the jury was exposed

to information suggesting that Mr. Schwartz was a convicted felon

notwithstanding the absence of any such evidence during the trial.

      The timing of the instructional error magnified its prejudicial effect,

leaving Mr. Schwartz in an even deeper hole than the defendant in

Maestas.

      b.    The district court itself revealed the prejudicial
            information.

      Maestas also differs from our case with respect to the source of the

prejudicial information. In Maestas, the prejudicial information came from

a governmental informant. 341 F.2d at 494-96. As a result, the jurors could

reasonably question the source of the information. See On Lee v. United

States, 343 U.S. 747, 757 (1952) (“The use of informers, accessories,

accomplices, false friends, or any of the other betrayals which are ‘dirty

business’ may raise serious questions of credibility.”). Here the prejudicial

information about Mr. Schwartz could not reasonably be questioned, for it

came from the court itself.


                                         11
                                     * * *

      In Maestas, a mistrial was necessary when the jury was exposed to

the fact that the defendant had previously been imprisoned. Curative

instructions were not enough to avert the prejudice. And the prejudice here

was even greater than it had been in Maestas: The erroneous information

here was revealed at the start of the trial by the district court. As a result,

Maestas forecloses reliance on the curative instructions.

      2.    The instructional error was not rendered harmless by the
            government’s questioning of Mr. Schwartz’s ex-wife.

      The government also argues that the instructional error was harmless

because the jury eventually heard about felony charges during the

government’s questioning of Mr. Schwartz’s ex-wife. In my view, this

questioning did not render the instructional error harmless.

      In questioning Mr. Schwartz’s ex-wife, the government’s questions

suggested that Mr. Schwartz had been charged with various felonies. But,

the government elsewhere downplays the impact of these questions,

pointing out that the government “presented no independent evidence of

the charges, and [Mr. Schwartz’s ex-wife] did not confirm or refute them.”

Appellee’s Ans. Br. at 51. Thus, the jurors could reasonably question

whether Mr. Schwartz had even been charged with these felonies.

      But let’s suppose the jurors believed that Mr. Schwartz had

previously been charged with other felonies. Even then, the instructional


                                          12
error would not be harmless. A charge is merely an accusation. There is a

vast, qualitative difference between an accusation of criminality and a

finding of guilt. Cf. Michelson v. United States, 335 U.S. 469, 482 (1948)

(“Arrest without more does not, in law any more than in reason, impeach

the integrity or impair the credibility of a witness. It happens to the

innocent as well as the guilty.”). Accordingly, the impression created by

the questioning paled in comparison to the impression created by the

instructional error. At most, the questioning suggested that Mr. Schwartz

had been accused of felonies; the instruction gave the jury the impression

that there was evidence of a prior felony conviction.

      C.    The district court’s poll could not reliably indicate whether
            the jury was prejudiced.

      After Mr. Schwartz was found guilty, the district court conducted a

poll. In the government’s view, this poll showed that the jurors had put the

erroneous instruction aside. I disagree, for the poll was too vague and

generic to reliably expose prejudice from the instruction.

      The court’s poll consisted of five stock questions:

      1.    Were these and are these your verdicts?

      2.    Was each such verdict based on the law I gave you and the
            instructions and none other than the instructions?

      3.    Was each such verdict based only on the facts that were
            admitted into evidence and none other?




                                         13
      4.     In your verdicts, did you disregard everything I told you to
             disregard and not include any such matters in your
             deliberations?

      5.     In your verdicts where evidence was limited to a particular
             purpose and not generally for all purposes, did you limit your
             consideration of that evidence to that particular purpose?

See R. vol. III, at 2238-48. None of the questions directly addressed the

instruction. 6

      For purposes of harmlessness, we have two possible questions. The

first possible question is whether even the “slightest possibility” of

prejudice existed notwithstanding the vague, generic poll given at the end

of the trial. See Part III, above. The second possible question is whether

the government proved that the instructional error was harmless based on

the jurors’ answers to the poll. See id. In my view, the answer to both

questions is “no.”

      The answer to both questions remains “no” even when we consider

the curative instructions and the questioning of Mr. Schwartz’s ex-wife.

Under Maestas, the curative instructions did not avert the prejudice. As for

the questioning, there was no independent evidence that Mr. Schwartz had

previously been charged with the relevant crimes. Thus, the jury could

6
      The government appears to contend that “individually polling the
jurors on whether they read or understood the erroneously included
instruction[] may have compounded the problem” of jury prejudice.
Appellee’s Ans. Br. at 22 n.6. But the jury was polled after it had already
issued its verdict. Thus, a more specific poll could not have affected the
verdict.

                                         14
justifiably doubt whether Mr. Schwartz had previously been charged with

these crimes. In addition, even if the jury believed that Mr. Schwartz had

previously been charged with these crimes, the prejudice from that belief

would pale in comparison to the prejudice from the instructional error.

V.   The government’s evidence did not render the instructional error
     harmless.

     The majority characterizes the government’s evidence as ample. If

the majority means that the evidence was enough for a reasonable jury to

find guilt, I agree. But if the majority instead means that the government’s

evidence was so overwhelming that the instructional error was harmless, 7 I

would respectfully disagree. The evidence against Mr. Schwartz was not

overwhelming, and the jury could reasonably have voted to acquit.

     For instance, a jury could reasonably have concluded that Mr.

Schwartz had strived to stay within the bounds of the law. For this

conclusion, the jury could have drawn on trial testimony indicating that

          Mr. Schwartz had consulted with an attorney to determine
           whether the pain management center was complying with the
           applicable regulations,

          Mr. Schwartz had researched the applicable regulations,

          Mr. Schwartz had consistently emailed articles to his staff
           about legal problems confronting other pain management
           centers, hoping that these articles would prevent the sort of
           mistakes that these centers had made,

7
     The government does not argue that the instructional error was
harmless based on the strength of the evidence against Mr. Schwartz.

                                        15
          Mr. Schwartz had pushed for various safeguards, including but
           not limited to random urinalysis and the use of Colorado’s
           Prescription Drug Monitoring Program, 8

          Mr. Schwartz had consistently emphasized the importance of
           following the law, and he would confront the doctor and the
           staff if he learned that they had bent or broken the rules,

          Mr. Schwartz had emphasized the importance of maintaining
           pristine, detailed records; had encouraged the use of electronic
           records; and had promoted the appropriate documentation of
           treatment,

          Mr. Schwartz had encouraged a 20% reduction in medications
           to help ensure that the center stayed within the bounds of the
           law, 9 and


8
     As the Centers for Disease Control and Prevention explains on its
website,

     Prescription Drug Monitoring Programs (PDMPs) are state-run
     electronic databases used to track the prescribing and
     dispensing of controlled prescription drugs to patients. They
     are designed to monitor this information for suspected abuse or
     diversion (i.e., channeling drugs into illegal use), and can give
     a prescriber or pharmacist critical information regarding a
     patient’s controlled substance prescription history.

Prescription Drug Monitoring Programs (PDMPs), Centers for Disease
Control and Prevention, https://www.cdc.gov/drugoverdose/pdmp/
index.html (last updated March 21, 2017). This webpage does not appear in
the appellate record, but is subject to judicial notice. See New Mexico ex
rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683, 702 n.22 (10th
Cir. 2009) (taking judicial notice of materials on the websites of two
federal agencies); see also Winzler v. Toyota Motor Sales U.S.A., Inc., 681
F.3d 1208, 1213 (10th Cir. 2012) (“The contents of an administrative
agency’s publicly available files . . . traditionally qualify for judicial
notice . . . .”).
9
     The center achieved the 20% reduction encouraged by Mr. Schwartz.

                                       16
           Mr. Schwartz had urged the offering of discounts to encourage
            use of alternative therapies, such as physical therapy, that
            could decrease or even eliminate the need for opioids.

In addition, former employees testified that

           while working for the center, they had not believed that they
            were doing anything illegal, and

           the doctor, not Mr. Schwartz, had the final say on all medical-
            related questions.

Based on this testimony, the jury could reasonably have concluded that

           there was no unlawful conspiracy and

           any illegal activity at the center was attributable to the doctor,
            not to Mr. Schwartz.

      The jury could also justifiably question the strength of the

government’s evidence. That evidence largely consisted of the experiences

of three patients. But the jury could reasonably have downplayed the

experiences of these three patients because the center had supplied

treatment for hundreds of other patients.

      The government also relied heavily on the experiences of an

undercover agent who had posed as a patient. The jury could reasonably

downplay this evidence, too, because the undercover agent had attended

the center shortly after it had taken over the patient base from the prior

owner. At this point, the jury could reason, the center had to deal with a

flood of new patients, many of whom were frantic because their former

doctor was gone and they were running out of medication. The record also

                                         17
indicates that the center was forced to treat some of these patients without

referring to their medical records because they had been seized by law

enforcement.

         Based on the evidence as a whole, a jury could reasonably have voted

to acquit. Thus, I would draw two conclusions based on the two possible

standards:

    1.        There was at least the “slightest possibility” that the outcome
              would have been different without the instructional error.

    2.        The government failed to prove that the instructional error was
              harmless.

These two conclusions lead me to believe that the district court abused its

discretion in denying Mr. Schwartz’s motion for a mistrial.

                                       * * *

         The district court unquestionably erred by telling the jury that

evidence existed even though none was ever presented. The subject-matter

was devastating, a felony conviction, tainting the jury’s perception of Mr.

Schwartz from the outset. Without this devastating error, there was at least

the “slightest possibility” of a different outcome. And none of the

government’s arguments would have satisfied its potential burden to prove

that the instructional error was harmless. Thus, whichever harmlessness

standard applies, the district court’s error was not harmless and I would

reverse the conviction. Because the majority affirms, I respectfully dissent.



                                           18
