                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                January 16, 2013
                                     PUBLISH                  Elisabeth A. Shumaker
                                                                  Clerk of Court
                      UNITED STATES COURT OF APPEALS

                                  TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                        No. 10-3281
 v.

 STEPHEN J. SCHNEIDER; LINDA
 K. SCHNEIDER, a/k/a Linda K.
 Atterbury,

          Defendants - Appellants.


           APPEAL FROM THE UNITED STATES DISTRICT COURT
                     FOR THE DISTRICT OF KANSAS
                    (D.C. No. 6:07-CR-10234-MLB-1&2)


John T. Carlson, Assistant Federal Public Defender, and Robert T. Fishman, Of
Counsel, Ridley, McGreevy & Winocur, P.C. (and Raymond P. Moore, Federal
Public Defender, on the briefs), Denver, Colorado, for Defendants - Appellants.

Tanya Treadway, Assistant United States Attorney, (and Barry R. Grissom,
United States Attorney, on the briefs), Topeka, Kansas, for Plaintiff - Appellee.


Before KELLY and HOLMES, Circuit Judges and MARTINEZ*, District Judge.


KELLY, Circuit Judge.



      *
       The Honorable William J. Martinez, United States District Judge, District
of Colorado, sitting by designation.
      Defendants-Appellants Dr. Stephen and Linda Schneider (the Schneiders)

were convicted of several counts of unlawful drug distribution, health care fraud,

and money laundering, all arising from their operation of Schneider Medical

Clinic. The district court sentenced Dr. Schneider to 360 months’ imprisonment,

and Ms. Schneider to 396 months’ imprisonment. The Schneiders appeal their

convictions, alleging that (1) they were denied the right to conflict-free

representation; (2) the district court erroneously admitted expert testimony; (3)

the district court improperly instructed the jury; and (4) there was insufficient

evidence to support the charge of health care fraud resulting in death. We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.



                                    Background

      This is the second time that the Schneiders and their medical clinic come

before us on appeal. On the first occasion, we considered, on interlocutory appeal

by the government, whether a pre-trial order excluding evidence and limiting the

government’s time to present its case was proper. United States v. Schneider, 594

F.3d 1219 (10th Cir. 2010). We held that it was not, vacated the district court

order, and remanded for trial. Id. at 1221. In the same decision, we dismissed

the Schneiders’ cross-appeal from the denial of their motion to exclude the

government’s expert testimony, finding that we lacked jurisdiction under the


                                        -2-
collateral order doctrine. Id. at 1229–30. The Schneiders now appeal their

convictions. As before, we begin with the relevant facts.

      Dr. Schneider was a doctor of osteopathic medicine and his wife, Ms.

Schneider, was a licensed practical nurse. IV R. 104. They owned and operated

Schneider Medical Clinic in Haysville, Kansas, where they provided pain

management treatment including the prescription of controlled substances. Id. at

104–05. On May 3, 2010, a Kansas grand jury issued a third superseding

indictment charging: Count 1—conspiracy to unlawfully distribute drugs, commit

health care fraud, engage in money laundering, and defraud the United States in

violation of 18 U.S.C. § 371; Counts 2–6—unlawful drug distribution and

unlawful drug distribution resulting in death in violation of 21 U.S.C. § 841(a)(1);

Counts 7–17—health care fraud and health care fraud resulting in death in

violation of 18 U.S.C. § 1347; and Counts 18–34—money laundering in violation

of 18 U.S.C. § 1957. Id. at 104–72.

      By the time of the third indictment, much had already happened in the case,

especially with respect to the Schneiders’ trial counsel. The Schneiders, after

befriending Siobhan Reynolds, a leader of the Pain Relief Network (PRN), fired

their court-appointed counsel and hired new counsel that Ms. Reynolds suggested.

VIII R. 104. Dr. and Ms. Schneider had separate counsel, but their attorneys were

in communication with Ms. Reynolds. See id. at 181, 235–36. Moreover, while

representing Dr. and Ms. Schneider, this counsel, on behalf of the PRN, sought

                                        -3-
temporary restraining orders prohibiting the Kansas Board of Healing Arts from

suspending Dr. Schneider’s medical license. Id. at 106–07. This same counsel

also filed a lawsuit in the Eastern District of Washington challenging state rules

restricting access to pain medicines. Id. at 263–73.

      Aware of a potential conflict, the government moved for a determination of

conflict. Id. at 143. On March 14, 2008, then presiding Judge Brown held a

hearing on the motion. Id. at 142–43. Judge Brown stated the government’s

concerns, and defense counsel represented that there was no conflict. Id. at

144–64. Then, after conferring with counsel, Dr. and Ms. Schneider waived all

potential conflicts. Id. In November 2009, the government renewed its motion

for a determination of a conflict. Id. at 99. Judge Belot, who presided at trial,

conducted ex parte hearings for Dr. and Ms. Schneider on January 11, 2010. XV

R. 160–68, 173–86. At each hearing, Judge Belot questioned the Schneiders

about the potential conflicts. Id. Both stated that they were aware of no conflict

and waived all potential conflicts. Id. at 168, 185.

      During Spring 2010, the case proceeded to trial. The government presented

an extensive amount of evidence detailing the operations of Schneider Medical

Clinic. This included lay testimony from patients and former employees, along

with expert testimony from medical experts. On appeal, the Schneiders challenge

portions of this expert testimony. Aplt. Stephen (S.) Br. 17–32. Thus, we

describe this expert testimony in more detail.

                                         -4-
      At trial, Dr. Theodore Parran was the government’s expert on the patient

care at Schneider Medical Clinic. XIII R. 2957. Dr. Parran reviewed over 100

patient records. Id. From those records, Dr. Parran concluded that the Schneiders

violated Kansas standards for prescribing controlled substances. Id. at 3002–03.

According to Dr. Parran, the Schneiders: (1) ran a practice that attracted drug

addicts; (2) took inadequate medical histories; and (3) indiscriminately prescribed

controlled drugs in excessive and escalating amounts. Id. at 3003, 3008, 3028.

On cross-examination, defense counsel questioned Dr. Parran about how the clinic

operated. Id. at 3473–76. The government, on redirect, asked Dr. Parran

additional questions regarding operations of the clinic, to which he replied that

“the clinic was at fault” for illegal drug distribution. Id. at 3527. Dr. Parran also

testified that, from his review of the records, the Schneiders ran a “dishonest

practice.” Id. at 2982–83. The Schneiders object to this testimony.

      Dr. Douglas Jorgensen was the government’s expert on pain management

and billing practices at Schneider Medical Clinic. XIV R. 404. Dr. Jorgensen

reviewed fifty-four medical charts, numerous autopsy and toxicology reports, and

information about billing and coding practices. Id. As part of his extensive

testimony on his observations from these documents, Dr. Jorgensen summarily

opined that the Schneiders’ health care fraud resulted in patients’ deaths. See,

e.g., id. at 520, 526. Dr. Jorgensen also testified that he believed, again from his

review of the records, that the Schneiders filed fraudulent claims. Id. at 519. The

                                         -5-
Schneiders object to this testimony.

      Dr. Graves Thorne Owen also testified as an expert in pain management.

XIII R. 2785, 2788. The government asked Dr. Owen, from a review of the

medical records, whether Dr. Schneider “was prescribing controlled substances

for a legitimate medical purpose?” Id. at 2809, 2819. Dr. Owen answered that

“[i]t was not.” Id. The Schneiders object to this testimony, along with similar

testimony from Drs. Parran and Jorgensen.

      After a lengthy trial, the jury found Dr. Schneider guilty of Counts 1–17

and two money laundering charges (Counts 26 and 28), and found Ms. Schneider

guilty of all charges save two money laundering charges (Counts 23 and 24). The

court sentenced Dr. Schneider to 360 months’ imprisonment, and Ms. Schneider

to 396 months’ imprisonment. The Schneiders timely appealed, filing separate

briefs but incorporating by reference the arguments made in each other’s briefs.

See Fed. R. App. P. 28(i); Aplt. S. Br. 9; Aplt. Linda (L.) Br. 75. Ms. Schneider,

however, does not join Dr. Schneider’s challenge to Instruction 33. Statement

Joining Co-Def.’s Br. and Notice of Errata, Sept. 4, 2012.



                                       Discussion

A.    Right to Conflict-Free Representation

      The Schneiders first argue that they were denied the right to conflict-free

representation. Aplt. L. Br. 36. They allege that the district court’s advice of the

                                          -6-
potential conflict and their subsequent waivers were inadequate. Id. They

contend that this is a conflict-of-interest claim, not a deficient-performance claim,

and thus, this court should apply the adverse-effects test of Cuyler v. Sullivan,

446 U.S. 335 (1980), not the prejudice test of Strickland v. Washington, 446 U.S.

668 (1984). Aplt. L. Br. 57. Under Culyer, a defendant need only prove an

actual conflict of interest that adversely affected counsel’s performance. 446 U.S.

at 350. The government disagrees, arguing that (1) the Schneiders waived the

right to conflict-free representation, and (2) this is a garden-variety, ineffective

assistance of counsel claim best reviewed in a collateral proceeding under

Strickland. Aplee. L. Br. 22–23.

      We agree with the government that the Schneiders waived the right to

conflict-free representation. The Sixth Amendment right to counsel contemplates

the right to conflict-free representation. See Holloway v. Arkansas, 435 U.S. 475,

483–84 (1978). However, a defendant may waive this right, if it is done

voluntarily, knowingly, and intelligently. Estelle v. Smith, 451 U.S. 454, 471

n.16 (1981). The trial court must ensure that a defendant understands the nature

of any conflict and its potential effect on counsel’s representation. See Wheat v.

United States, 486 U.S. 153, 161 (1988). We have held that

      in order for a defendant effectively to waive his right to conflict-free
      counsel, the trial judge should affirmatively participate in the waiver
      decision by eliciting a statement in narrative form from the defendant
      indicating that he fully understands the nature of the situation and
      has knowingly and intelligently made the decision to proceed with

                                          -7-
      the challenged counsel.

United States v. Migliaccio, 34 F.3d 1517, 1527 (10th Cir. 1994) (quotation

omitted). Moreover, when determining if a waiver is valid, we consider the

“totality of the circumstances,” including all prior discussions of any conflict. Id.

      Here, the record shows that the Schneiders, two medical professionals,

waived their right to conflict-free representation. Prior to trial, the court

conducted two hearings on potential conflicts. At the first hearing, Judge Brown

stated the government’s concerns, counsel represented that there was no conflict,

and then, after given the opportunity to confer with counsel, the Schneiders

waived all potential conflicts. VIII R. 144–64. At the second hearing, which was

conducted ex parte and separately for Dr. and Ms. Schneider, Judge Belot again

questioned the Schneiders about the potential conflict. XV R. 160–68, 173–86.

Both stated they were aware of no conflict and waived all potential conflicts. Id.

at 168, 185. Considering the “totality of the circumstances,” Migliaccio, 34 F.3d

at 1527, we have no doubt that the waivers were valid.

      We also agree with the government that any remaining claim is best

brought in a collateral proceeding. We have long explained that “ineffective

assistance of counsel claims are more appropriate for collateral attack under 28

U.S.C. § 2255 than direct appeal, because the factual record for such claims is

more developed when the district court conducts an evidentiary hearing on the

issue.” United States v. Bergman, 599 F.3d 1142, 1149 (10th Cir. 2010) (citation

                                          -8-
omitted). Here, further development of the record is required. Thus, any

ineffective assistance claim should be brought in a collateral proceeding.

      Finally, we note that Dr. and Ms. Schneider criticize the government for

taking inconsistent positions on the issue of conflict. The Schneiders even

suggest that judicial estoppel is appropriate because the government, at trial,

argued there was a conflict, and now, on appeal, denies the existence of a

conflict. Aplt. L. R. Br. 1–6; Aplt. S. R. Br. 5–8. We reject this suggestion, and

remind the Schneiders that the government has a “duty to alert the court to

defense counsel’s potential and actual conflicts of interest.” United States v.

McKeighan, 685 F.3d 956, 966 (10th Cir. 2012) (emphasis added). This

responsibility, however, does not prevent the government from later denying the

existence of a conflict.

B.    Expert Witness Testimony

      The Schneiders next contend that the district court improperly allowed

expert witnesses to testify (1) that Dr. Schneider was guilty of the crimes

charged; (2) as to legal opinions; and (3) about Dr. Schneider’s state of mind.

Aplt. S. Br. 17. We review a district court’s admission of expert testimony for

abuse of discretion, United States v. Shaffer, 472 F.3d 1219, 1225 (10th Cir.

2007), and will only reverse when that decision is “manifestly erroneous.” United

States v. Dazey, 403 F.3d 1147, 1171 (10th Cir. 2005). When a claim is not

preserved, we review for plain error. United States v. Knight, 659 F.3d 1285,

                                        -9-
1287 (10th Cir. 2011). Under plain error review, we may not reverse unless we

find an (1) error, (2) that is plain, which (3) affects substantial rights, and which

(4) seriously affects the fairness, integrity, or public reputation of judicial

proceedings. Id.

      The Schneiders first allege the court erred by admitting testimony that Dr.

Schneider was guilty of unlawful drug distribution in violation of 21 U.S.C. § 841

and health care fraud in violation of 18 U.S.C. § 1347. Aplt. S. Br. 20–22.

Specifically, the Schneiders argue that it was improper for Dr. Parran to opine

that “the clinic was at fault” for illegal drug distribution, and for Dr. Jorgensen to

opine that Dr. Schneider “engaged in health care fraud” resulting in death. Id. at

20–21. The Schneiders did not object to Dr. Jorgensen’s testimony, so we review

that claim for plain error.

      The rules of evidence allow an expert to opine on an “ultimate issue” to be

decided by the trier of fact. Fed. R. Evid. 704(a); Dazey, 403 F.3d at 1171.

However, an expert may not “simply tell the jury what result it should reach[;]”

he or she must explain the basis for any summary opinion. Dazey, 403 F.3d at

1171. Here, we find no error in the admission of Drs. Parran and Jorgensen’s

testimony. Neither doctor told the jury to reach a particular verdict, i.e. that Dr.

Schneider was guilty. Rather, after explaining at great length their observations

from the evidence, they summarized their findings in the testimony above. XIII

R. 2945–3320; XIV R. 395–550. As such, the testimony was properly admitted.

                                         - 10 -
      The Schneiders next argue that expert witnesses impermissibly offered

legal conclusions that Dr. Schneider engaged in conduct outside the ordinary

course of medical practice. Aplt. S. Br. 23–28. Here, the Schneiders cite the

testimony of Drs. Owens, Jorgensen, and Parran, each opining that Dr. Schneider

prescribed controlled substances “for other than legitimate medical purposes.” Id.

at 23–26. The Schneiders moved in limine to exclude this testimony, and the

judge denied the motion; thus, we review for abuse of discretion. See United

States v. Mejia-Alarcon, 995 F.2d 982, 986 (10th Cir. 1993).

      The crux of the Schneiders’ argument is that the experts should not have

used a legal phrase—other than legitimate medical purposes—in their testimony.

However, we allow experts to refer “to the law in expressing [their] opinion.”

United States v. Bedford, 536 F.3d 1148, 1158 (10th Cir. 2008) (internal

quotation marks and citation omitted). The concern, rather, is when an expert

uses a specialized legal term and usurps the jury’s function. The use of the

phrase “other than legitimate medical purposes” does not cause such a problem.

See United States v. McIver, 470 F.3d 550, 562 (4th Cir. 2006). The Schneiders’

effort to distinguish the permissible testimony in McIver from what occurred here

is not persuasive. Therefore, the admission of the testimony was proper.

      The Schneiders finally argue that the experts impermissibly testified to Dr.

Schneider’s intent. Aplt. S. Br. 28. Here, the Schneiders cite testimony from Dr.

Jorgensen that the documents evidence “an intention to deceive and defraud the

                                       - 11 -
system,” and from Dr. Parran that “this is a dishonest practice.” Id. at 29. The

Schneiders did not object at trial, so we review for plain error.

      The evidence rules prohibit an “expert witness . . . [from] stat[ing] an

opinion about whether the defendant did or did not have a mental state or

condition that constitutes an element of the crime charged or of a defense.” Fed.

R. Evid. 704(b); see Shaffer, 472 F.3d at 1225. However, the rules do not prevent

an expert from drawing conclusions about intent, so long as the expert does not

profess to know a defendant’s intent. See United States v. Orr, 68 F.3d 1247,

1252 (10th Cir. 1995). In this case, the expert witnesses expressly disclaimed

knowledge of Dr. Schneider’s intent. See, e.g., XIV R. 533–34 (“Q: Are you

telling the jury what you know to be the Defendant’s intent or are you stating

what the evidence indicates to you? A: I’m stating what the evidence indicates to

me . . . .”). Thus, we find no error in the admission of this testimony.

C.    Erroneous Jury Instructions

      The Schneiders next contend that the trial court, in charging the jury, erred

in four ways. First, they contend that the court should have instructed that, to

convict under 21 U.S.C. § 841(a)(1), the jury had to find that Dr. Schneider

knowingly acted without a legitimate medical purpose or outside the usual course

of professional practice. Aplt. S. Br. 32. Second, they claim that it was error to

include the phrase “beyond the bounds of medical practice” in the drug

distribution instruction. Id. at 41–42. Third, they contend that the good faith

                                        - 12 -
instruction was erroneous because it prevented the jury from finding Dr.

Schneider acted in good faith. Id. at 45. And fourth, they argue that the health

care fraud instruction was erroneous because it allowed Dr. Schneider to be

convicted if Ms. Schneider was found guilty. Id. at 53.

      We review a court’s rejection of a proposed jury instruction for abuse of

direction, considering de novo the instructions as a whole to determine whether

they accurately inform the jury of the governing law. United States v. Gwathney,

465 F.3d 1133, 1142 (10th Cir. 2006). When a party does not object, we review

for plain error. United States v. Teague, 443 F.3d 1310, 1314 (10th Cir. 2006).

The Schneiders objected to the court’s refusal to give its proposed instruction

under § 841(a)(1), but did not object to the other instructions.

      The Schneiders first challenge the unlawful drug distribution instruction,

stating that the court should have instructed the jury that the government must

prove Dr. Schneider knowingly and intentionally acted either not for a legitimate

medical purpose or outside the usual course of his professional practice. Aplt. S.

Br. 34. The instruction, as given, provided that the jury must find:

      First:        Stephen Schneider dispensed [controlled substances] . . .;

      Second:       Stephen Schneider acted knowingly and intentionally; and

      Third:        Stephen Schneider’s actions were not for legitimate medical
                    purposes in the usual course of professional medical practice
                    or were beyond the bounds of medical practice.

IV R. 839. The court also provided a good faith instruction that:

                                        - 13 -
            [A] physician does not violate Section 841(a)(1) . . . when he
      dispenses a controlled substance in good faith to a patient in the usual
      course of professional practice.

            The term “good faith” means the honest exercise of good
      professional judgment as to a patient’s medical needs.

IV R. 845. In support, the Schneiders cite United States v. Feingold, where the

Ninth Circuit held that, to convict under § 841(a)(1), a “jury must make a finding

of intent not merely with respect to distribution, but also with respect to the

doctor’s intent to act as a pusher rather than a medical professional.” 454 F.3d

1001, 1008 (9th Cir. 2006). However, Feingold provides little support because

the instructions in Feingold were nearly identical to those in the instant case, and

the court in Feingold held that the instructions “compelled the jury to consider

whether [the defendant] intended to distribute the controlled substances for a

legitimate medical purpose and whether he intended to act within the usual course

of professional practice.” 454 F.3d at 1009. We think the same is true here—the

jury considered Dr. Schneider’s intent. In other words, Dr. Schneider’s argument

is without merit because the jury, on the instructions given, found that he

knowingly acted not for a legitimate medical purpose or not within the usual

course of professional practice. See IV R. 839, 845. In reaching this conclusion,

we need not decide any mens rea requirement under § 841(a)(1); we only hold

that the Schneiders’ challenge is without merit.

      On the Schneiders’ second claim concerning the jury instructions, we do

                                        - 14 -
not believe that the inclusion of the phrase “beyond the bounds of medical

practice” was plain error. Counts 2–6 charged unlawful drug distribution in

violation of § 841(a)(1). IV R. 835. Instructions 20–23 and 26 provided that to

find Dr. Schneider guilty the jury needed to find that his actions “were not for

legitimate medical purposes in the usual course of professional medical practice

or were beyond the bounds of medical practice.” Id. at 838–41, 844. As an initial

matter, we reject the Schneiders’ claim that there is no precedential support for

the phrase “beyond the bounds of medical practice.” See United States v. Moore,

423 U.S. 122, 140 (1975) (discussing physicians who “operate beyond the bounds

of professional practice”). More directly, we find no practical difference between

“not . . . in the usual course of professional medical practice” and “beyond the

bounds of medical practice.” Finally, if there were a difference, overwhelming

evidence proved that Dr. Schneider unlawfully prescribed controlled substances.

Thus, the inclusion of the phrase “beyond the bounds of medical practice” did not

affect the Schneiders’ substantial rights.

      We similarly find no error in the court’s good faith instruction. Instruction

27 provided that “a physician does not violate Section 841(a)(1) . . . when he

dispenses a controlled substance in good faith to a patient in the usual course of

professional practice.” IV R. 845. The Schneiders contest the phrase “in the

usual course of professional practice,” arguing that a jury could only find Dr.

Schneider acted in good faith if they first found his actions to be in the usual

                                        - 15 -
course of professional practice. Aplt. S. Br. 47. This reading, however, parses

the instruction too finely. Instruction 27 later defines “good faith” as “the honest

exercise of good professional judgment.” IV R. 845. Thus, the jury could have

decided that Dr. Schneider acted in “good faith.”

      Finally, we find no error in the court’s health care fraud instruction.

Instruction 33 provided that “[t]o find one or both of the defendants guilty of

health care fraud [you must find] a defendant knowingly and willfully executed . .

. a scheme or artifice to defraud a health care benefit program.” Id. at 852. Dr.

Schneider argues that this instruction permitted the jury to convict him on a strict

liability theory—i.e. if Ms. Schneider (a defendant) executed a health care fraud,

Dr. Schneider (one or both of the defendants) would be guilty as well. Aplt. Br.

S. 56. We reject this claim, noting that even if this instruction could have been

better worded, the instructions, when considered as a whole, correctly informed

the jury that they needed to consider intent and guilt separately. See IV R. 820.

Moreover, the jury completed separate verdict sheets for Dr. and Ms. Schneider

and convicted them of different offenses. See id. at 770–83. We do not believe

this instruction was erroneous.

D.    18 U.S.C. § 1347: Counts 7–9

      Our review is de novo as to the sufficiency of the evidence. United States

v. Smith, 641 F.3d 1200, 1204 (10th Cir. 2011). “We view the evidence in the

light most favorable to the verdict to ascertain whether any rational trier of fact

                                        - 16 -
could have found the defendant guilty beyond a reasonable doubt.” Id. at

1204–05.

      Section 1347(a) provides an enhanced penalty for health care fraud “if the

violation results in death.” 18 U.S.C. § 1347(a). Counts 7–9 charged the

Schneiders with health care fraud resulting in death. IV R. 851. The Schneiders

assert that the government presented insufficient evidence to support the jury’s

verdict. Aplt. S. Br. 52–53. Specifically, the Schneiders argue that the fraud

perpetuated against insurers—i.e. upcoding services or billing for services not

rendered—was not the cause of harm to any patients. The government responds

that the evidence presented was similar to that upheld as sufficient in other

circuits. Aplee. S. Br. 60; see United States v. Webb, 655 F.3d 1238, 1258 (11th

Cir. 2011); United States v. Martinez, 588 F.3d 301, 319–23 (6th Cir. 2009).

      Sufficient evidence supports the convictions on these counts. As the

government explained at oral argument, evidence of the scheme to defraud was

not limited to the upcoding and billing practices. Rather, the scheme included the

illegal distribution of drugs, which caused the deaths of three patients—Patty,

Eric, and Robin. The expert testimony and medical records produced at trial

showed that Dr. Schneider continued to prescribe controlled substances to Patty,

Eric, and Robin even as their conditions worsened. See XIV R. 514–36. And Dr.

Schneider, with the help of Ms. Schneider, submitted false and fraudulent claims

to the insurers for these services. See id. These claims were false and fraudulent

                                        - 17 -
because they were not for legitimate medical services rendered. See id. at 517. A

reasonable factfinder could conclude beyond a reasonable doubt that Dr. and Ms.

Schneider’s health care fraud scheme resulted in the deaths of Patty, Eric, and

Robin. Thus, we find the evidence sufficient to sustain the conviction and

enhancement under § 1347.

      AFFIRMED. Appellee’s motion to supplement the record on appeal is

DENIED.




                                       - 18 -
10-3281, United States v. Schneider

HOLMES, J., concurring, joined in Part I.C by MARTINEZ, J.

      I join much of the majority’s opinion. In particular, I fully join Parts A and

B and the portions of Part C not visited here. I also concur in the majority’s

ultimate ruling, affirming the district court’s judgment. I write separately to offer

my thoughts regarding two of the Schneiders’ jury-instruction challenges and

their claim that there was insufficient evidence to support their convictions for

health-care fraud resulting in death, pursuant to 18 U.S.C. § 1347. I hope to

bolster, and clarify the foundation for, the majority’s rulings on these three

matters.

                                          I

                                         A

      We “review a district court’s decision to give a particular jury instruction

for abuse of discretion,” but “we review de novo legal objections to the jury

instructions.” Frederick v. Swift Transp. Co., 616 F.3d 1074, 1079 (10th Cir.

2010) (citations omitted) (internal quotation marks omitted); see also Webb v.

ABF Freight Sys., Inc., 155 F.3d 1230, 1248 (10th Cir. 1998) (“[W]e will find an

abuse of discretion if the challenged instruction incorrectly states the governing

law.”). We read and evaluate jury instructions in light of the entire record to

determine if they “fairly, adequately and correctly state the governing law and

provide the jury with an ample understanding of the applicable principles of law

and factual issues confronting them.” Lederman v. Frontier Fire Prot., Inc., 685
F.3d 1151, 1154–55 (10th Cir. 2012) (quoting United States v. Barrera-Gonzales,

952 F.2d 1269, 1272 (10th Cir. 1992)) (internal quotation marks omitted). “We

do not determine whether the instructions, on the whole, are flawless, but whether

the jury was misled in any way and whether it had an understanding of the issues

and its duty to decide those issues.” Brodie v. Gen. Chem. Corp., 112 F.3d 440,

442 (10th Cir. 1997) (citation omitted) (internal quotation marks omitted). So

long as the charge as a whole adequately states the law, the refusal to give a

particular requested instruction is not an abuse of discretion. See United States v.

Suntar Roofing, Inc., 897 F.2d 469, 473 (10th Cir. 1990).

      When no objection has been made at trial, we review jury instructions for

plain error. See United States v. Sturm, 673 F.3d 1274, 1281 (10th Cir. 2012).

“Plain error occurs when there is (i) error, (ii) that is plain, which (iii) affects the

defendant’s substantial rights, and which (iv) seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” United States v. Lopez-

Medina, 596 F.3d 716, 738 (10th Cir. 2010) (quoting United States v. Ruiz-

Terrazas, 477 F.3d 1196, 1199 (10th Cir. 2007)) (internal quotation marks

omitted).

                                           B

      I address here the Schneiders’ challenge to the elemental instructions for

illegally dispensing a controlled substance under 18 U.S.C. § 841(a)(1).

Specifically, the Schneiders contend that the district court erred in not instructing

                                           -2-
the jury that, in order to convict the Schneiders of this offense, it had to find that

Dr. Schneider dispensed controlled substances with at least knowledge that he

was doing so without a legitimate medical purpose or outside of the usual course

of professional practice.

                                           1

      The Controlled Substances Act (“CSA”) provides, in relevant part: “Except

as authorized by this subchapter, it shall be unlawful for any person knowingly or

intentionally . . . to manufacture, distribute, or dispense, or possess with intent to

manufacture, distribute, or dispense, a controlled substance . . . .” 21 U.S.C.

§ 841(a)(1). A physicians’ exemption is found in the CSA’s definitions and

related regulations. To be exempted from § 841(a)(1)’s prohibitions, the

physician must be registered and acting as authorized. See 21 U.S.C. §§ 802(21),

822(b). “A prescription for a controlled substance to be effective must be issued

for a legitimate medical purpose by an individual practitioner acting in the usual

course of his professional practice.” 21 C.F.R. § 1306.04(a). 1


      1
             Citing our decision in United States v. Nelson, 383 F.3d 1227
(10th Cir. 2004), the Schneiders assert that we have held that the legitimate-
medical-purpose and usual-course-of-professional-practice standards are “just two
different ways of saying the same thing.” Aplt. Opening Br. (SJS) at 48 n.13.
Actually, we have not gone that far. Although, in Nelson, we observed that there
was “considerable room to doubt” whether there were material differences
between the two standards worthy of advocating for, “recognizing the limits of
our imagination,” we were “hesitant to say that it never could make a difference”
which standard applied. 383 F.3d at 1231. Although I address, as appropriate, in
                                                                       (continued...)

                                          -3-
      The district court’s jury instructions for the § 841 charges are found in

Instructions 20–23. R., Vol. 4, at 838–41 (Jury Instructions, filed July 1, 2010).

They follow the same general format:

             First: Stephen Schneider dispensed . . . controlled substances
             to [individual];

             Second: Stephen Schneider acted knowingly and intentionally;
             and

             Third: Stephen Schneider’s actions were not for legitimate
             medical purposes in the usual course of professional medical
             practice or were beyond the bounds of medical practice.

             In order to find Linda Schneider guilty . . . you must find that
             she aided and abetted Stephen Schneider.

Id. at 841 (Instruction No. 23).

      The Schneiders argue that the CSA’s requirement that a physician act

“knowingly or intentionally” applies not only to the element of dispensing a

controlled substance, but also to the requirement that such dispensing be without

authorization under the CSA. In other words, the Schneiders contend that the

physician must at least know that the prescription is not “issued for a legitimate

medical purpose,” and that the physician was not “acting in the usual course of

his professional practice.” See Aplt. Opening Br. (SJS) at 34.




      1
       (...continued)
discussing the Schneiders arguments, one or both of the standards, any differences
between the two are not of any appreciable significance to my analysis here.

                                         -4-
                                          2

      At the outset, it is helpful to clarify what issues are not implicated by the

Schneiders’ arguments. Notably, it is important to highlight that the viability of

the Schneiders’ arguments does not turn on whether the legitimate-medical-

purpose and the usual-course-of-professional-practice standards are reflected in

the express terms of 21 U.S.C. § 841(a)(1). They are not. At least in the context

of this case and under the law of this circuit, the government’s arguments to the

contrary are misguided and off-target.

      The government observes that the legitimate-medical-purpose and usual-

course-of-professional-practice standards are not reflected in the express terms of

21 U.S.C. § 841(a)(1) and that these standards, taken together, constitute no more

than an exemption for physicians and are not elements of § 841(a)(1). See Aplee.

Br. (SJS) at 18. The government primarily employs this observation in its efforts

to distinguish two key Supreme Court cases upon which the Schneiders

rely—Liparota v. United States, 471 U.S. 419 (1985), and United States v. X-

Citement Video, Inc., 513 U.S. 64 (1994). See Aplee. Br. (SJS) at 21–22.

      In those cases, drawing upon well-settled and customary interpretive

principles, the Supreme Court construed two criminal statutes as embodying a

mens rea requirement that was linked to certain substantive elements of the

statutes in question. See X-Citement Video, 513 U.S. at 69 (noting “the

respective presumptions that some form of scienter is to be implied in a criminal

                                         -5-
statute even if not expressed, and that a statute is to be construed where fairly

possible so as to avoid substantial constitutional questions” (emphasis added));

Liparota, 471 U.S. at 425 (“The contention that an injury can amount to a crime

only when inflicted by intention is no provincial or transient notion. It is as

universal and persistent in mature systems of law as belief in freedom of the

human will and a consequent ability and duty of the normal individual to choose

between good and evil.” (emphasis added) (quoting Morissette v. United States,

342 U.S. 246, 250 (1952)) (internal quotation marks omitted)). And that mens rea

requirement that the Supreme Court discerned in the two cases—specifically, a

“knowing” mens rea—had to be satisfied before the elements at issue could give

rise to criminal liability. See X-Citement Video, 513 U.S. at 78 (“[W]e conclude

that the term ‘knowingly’ in [18 U.S.C.] § 2252 extends both to the sexually

explicit nature of the material and to the age of the performers.”); Liparota, 471

U.S. at 425 (“Absent indication of contrary purpose in the language or legislative

history of the statute, we believe that [7 U.S.C.] § 2024(b)(1) requires a showing

that the defendant knew his conduct to be unauthorized by statute or

regulations.”).

      The government’s position appears to be that, unlike the statutes at issue in

Liparota and X-Citement Video, there are no express elements of § 841(a)(1)

embodying the standards at issue here upon which to append a mens rea

requirement and, therefore, the Schneiders’ reliance on this Supreme Court

                                          -6-
precedent is misplaced. Put another way, as the government reasons, because the

legitimate-medical-purpose and usual-course-of-professional-practice standards

are not express elements of § 841(a)(1), Liparota and X-Citement Video are

inapposite and, more specifically, those cases do not militate in favor of a

conclusion that it is the government’s obligation to establish that Dr. Schneider

acted at least knowingly contrary to one or both of those standards.

      The government’s argument, however, is misguided and off the mark for at

least two reasons. First, irrespective of the absence of the legitimate-medical-

purpose or usual-course-of-professional-practice standards from the express terms

of § 841(a)(1), we have endorsed instructions placing the burden on the

government in a § 841(a)(1) prosecution of a physician to prove beyond a

reasonable doubt that the physician did not adhere to at least one of these

standards. See United States v. Nelson, 383 F.3d 1227, 1231–32 (10th Cir. 2004)

(“We conclude that the better view is that there was no error in the instruction. A

practitioner has unlawfully distributed a controlled substance if she prescribes the

substance either outside the usual course of medical practice or without a

legitimate medical purpose.” (emphasis added)); accord United States v. Seelig,

622 F.2d 207, 213 (6th Cir. 1980) (“[A] conviction under § 841(a)(1) requires the

government to prove beyond a reasonable doubt that the drugs were distributed

outside the usual course of professional practice.”). Indeed, curiously, in the

context of stressing the non-element status of these standards, without citation to

                                         -7-
pertinent Tenth Circuit authority, the government signals its recognition that it

bears the evidentiary burden regarding them. See Aplee. Br. (SJS) at 20 (“[T]he

government must prove a doctor’s prescriptions were not issued in the usual

course of professional practice and for other than a legitimate medical purpose to

prove the statute applies to the doctor, as well as to negate any good faith

defense.”).

      Second, even if our precedent did not settle the issue, by failing to object

before the district court to the court’s instruction—requiring it to negate the fact

that Dr. Schneider acted with a legitimate medical purpose or in the usual course

of professional practice—the government became bound by the instructions as

law of the case. See, e.g., United States v. Bader, 678 F.3d 858, 881 n.13 (10th

Cir. 2012) (“[T]he government did not object to any possible error in this

instruction and therefore was bound by it.”).

      Consequently, the legitimate-medical-purpose and usual-course-of-

professional-practice standards are tantamount to express elements of § 841(a)(1),

which the government must address in its case-in-chief. And the question thus

remains whether the statute should be interpreted so as to require the government

to prove that the Schneiders at least knowingly violated at least one of these

standards; if so, the district court’s instructions were error.




                                           -8-
                                          3

      Drawing support from Liparota and X-Citement Video, the Schneiders urge

us to adopt the holding of the Ninth Circuit in United States v. Feingold, 454 F.3d

1001 (9th Cir. 2006). See Aplt. Opening Br. (SJS) at 39 (“The same

considerations that animated the Supreme Court’s decisions in Liparota and X-

Citement Video should lead this Court to adopt the holding of Feingold as the law

of this Circuit.”). In Feingold, the court held that, in order to convict a physician

under § 841, the government must establish, inter alia, that he or she “acted with

intent to distribute the drugs and with intent to distribute them outside the course

of professional practice.” 454 F.3d at 1008 (emphasis omitted).

      However, on this record, I agree with the majority: the Schneiders can find

little, if any, succor in Feingold. As the majority put it,

             Feingold provides little support because the instructions in
             Feingold were nearly identical to those in the instant case, and
             the court in Feingold held that the instructions “compelled the
             jury to consider whether [the defendant] intended to distribute
             the controlled substances for a legitimate medical purpose and
             whether he intended to act within the usual course of
             professional practice.”


Maj. Op. at 14 (alteration in original) (quoting Feingold, 454 F.3d at 1009).

Thus, even if the jury were required to find that Dr. Schneider (aided and abetted

by Ms. Schneider) knowingly acted outside the usual course of professional

practice or dispensed drugs for purposes that were not legitimate medical


                                          -9-
purposes, following the Ninth Circuit’s analysis in Feingold, I would conclude

that the instructions given by the district court were not erroneous.

      I underscore, however, that we need not decide on this record whether in

fact there is such a mens rea requirement—that is, whether the government must

prove that a physician defendant at least knowingly violated either the legitimate-

medical-purpose or usual-course-of-professional-practice standards. On this

point, the majority agrees. See Maj. Op. at 14 (noting that “we need not decide

any mens rea requirement under § 841(a)(1)”). Therefore, for the foregoing

reasons, like the majority, I reject the Schneiders’ challenge to the § 841

instructions.

                                          C

      I address here the Schneiders’ challenge to the district court’s good-faith

instruction. The Schneiders contend that, by reference to the “usual course of

professional practice,” this instruction logically precluded the jury from

exculpating them on the grounds of good faith. In brief, they argue that, because

the jury must find that Dr. Schneider did not act in the usual course of

professional practice to find them guilty of the 21 U.S.C. § 841 offenses, this

finding would logically prevent the jury from also exculpating them on the

grounds of good faith, insofar as the good-faith instruction conditioned a finding

of good faith upon a determination that Dr. Schneider was acting in the usual


                                         -10-
course of professional practice. In other words, reason the Schneiders, the good-

faith instruction would require the jury to reach diametrically opposite findings

regarding whether Dr. Schneider acted in the usual course of professional practice

in order to exculpate him on the grounds of good faith. The Schneiders claim that

the alleged error wrought by this instruction was plain and prejudicial.

                                         1

      The Schneiders did not raise an objection to the district court’s good-faith

instruction at trial. Therefore, as Dr. Schneider acknowledges, see Aplt. Opening

Br. (SJS) at 46 n.12, we review their challenge to the good-faith instruction for

plain error, see, e.g., Sturm, 673 F.3d at 1281. Significantly, for an error to be

“plain” under this standard, it must be “clear or obvious error.” United States v.

McGehee, 672 F.3d 860, 876 (10th Cir. 2012); see United States v. Cooper, 654

F.3d 1104, 1117 (10th Cir. 2011) (noting that saying an error is “plain,” “means

clear or obvious under current law” (quoting United States v. Goode, 483 F.3d

676, 681 (10th Cir. 2007)) (internal quotation marks omitted)).

      The district court’s jury instruction on good faith reads as follows:

             [A] physician does not violate Section 841(a)(1) . . . when he
             dispenses a controlled substance in good faith to a patient in the
             usual course of professional practice.


             The term “good faith” means the honest exercise of good
             professional judgment as to a patient’s medical needs. Good
             faith connotes an observance of conduct in accordance with what

                                             -11-
             the physician should reasonably believe to be proper medical
             practice.


R., Vol. 4, at 845 (Instruction No. 27) (emphasis added). The Schneiders argue

that this instruction is plainly wrong because it permitted a jury to find that Dr.

Schneider—as well as Ms. Schneider, as his aider and abettor—acted in good

faith only if the jury also concluded that he was acting in the usual course of

professional practice. See Aplt. Opening Br. (SJS) at 47.

      They contend that instead, the jury should have been instructed that if it

found Dr. Schneider was acting in good faith, then it should also find that he was

acting in the usual course of professional practice. Id. The Schneiders succinctly

state what they perceive to be the effect of this purported error:

             By conditioning a finding of “good faith” upon a finding that Dr.
             Schneider had acted “in the usual course of professional
             practice”, the district court’s instruction guaranteed that the jury
             could not conclude that Dr. Schneider had acted in good faith.
             That is because the district court’s elemental instruction for the
             Section 841 charges required the jury to conclude that Dr.
             Schneider had not been acting “in the usual course of
             professional practice . . . .”


Id. (emphasis added). According to the Schneiders, “[t]his [good-faith

instructional] error deprived Dr. Schneider [and Ms. Schneider] of [their] primary

defense, thereby affecting [their] substantial rights and casting serious doubt upon

the fairness of [their] trial.” Id. at 50. Significantly, if the instructions were as

the Schneiders would have it, a jury finding of good faith would be tantamount to

                                          -12-
a determination that Dr. Schneider acted in the usual course of professional

practice and, thus, would absolve him (and Ms. Schneider) of criminal liability on

the § 841 charges.

      Furthermore, in support of their argument, the Schneiders cite examples

found in other circuit court decisions of what they view as correct good-faith

instructions. See United States v. Armstrong, 550 F.3d 382, 398 (5th Cir. 2008),

abrogated on other grounds by United States v. Guillermo Balleza, 613 F.3d 432

(5th Cir. 2010); United States v. Williams, 445 F.3d 1302, 1309 (11th Cir. 2006),

abrogated on other grounds by United States v. Lewis, 492 F.3d 1219 (11th Cir.

2007); United States v. Vamos, 797 F.2d 1146, 1152 (2d Cir. 1986). Notably,

they do not offer an example of such a favorable instruction from a Supreme

Court or Tenth Circuit case.

      The majority summarily rejects the Schneiders’ challenge to the good-faith

instruction, concluding that the Schneider’s reading “parses the instruction too

finely.” Maj. Op. at 16. I have no quarrel with the majority’s outcome. I only

write to clarify an appropriate foundation for it. In particular, for at least two

principal reasons, I would hold that the Schneiders’ challenge cannot prevail on

plain-error review because they cannot establish that the district court committed

clear or obvious error.




                                         -13-
                                           2

      First, even if conditioning a good-faith finding on a finding that Dr.

Schneider actually acted in the usual course of professional practice could be

considered error for the reasons articulated by the Schneiders, in my view, it

would have been far from clear or obvious to the district court that its instructions

had this effect. In other words, the district court would not have committed clear

or obvious error (i.e., plain error) in using the instructions. The district court’s

definition of good faith could be read naturally as not focusing on whether Dr.

Schneider actually acted in the usual course of professional practice, but rather

whether a jury could find that Dr. Schneider held an objectively reasonable belief

that he was so acting.

      In this regard, the court instructed, “Good faith connotes an observance of

conduct in accordance with what the physician should reasonably believe to be

proper medical practice.” R., Vol. 4, at 845 (emphasis added); see also Aplee. Br.

(SJS) at 31 (“The defendants also overlook the fact that it is the second paragraph

of the instruction, not the phrase they seize upon, that defines ‘good faith’ in the

context of a doctor prescribing controlled substances.”). Therefore, under this

reading of the court’s good-faith instruction, the jury could well find that Dr.

Schneider did not actually act in the usual course of professional practice, but

exculpate him of criminal liability on the grounds that he acted with a reasonable



                                         -14-
belief that he was so acting—viz., it could acquit the Schneiders on the basis that

Dr. Schneider acted with objectively reasonable good faith. Put another way,

under this reading, it would not have been “logically impossible,” as the

Schneiders assert, Aplt. Opening Br. (SJS) at 48, for the jury to acquit the

Schneiders on the basis of good faith, after first finding that Dr. Schneider

actually failed to act in the usual course of professional practice.

      As such, the instruction’s reference to the usual course of professional

practice simply would have served to ensure that the jury would only acquit Dr.

Schneider (as well as Ms. Schneider as an aider and abettor) on the basis of good

faith, when there was an objectively reasonable basis for his purported good-faith

conduct. This outcome would have been entirely consistent with federal case law,

which has rejected a subjective standard of good faith, in favor of an objective

one. 2 See Williams, 445 F.3d at 1309 (“[The defendant’s] proposed instruction


      2
               Notwithstanding the important role that Dr. Schneider’s purported
“good faith” plays in the Schneiders’ exculpatory effort, they fail to offer an
alternative definition of the term. They appear to contemplate a form of good
faith that is at least primarily subjective. The government certainly sees it this
way. See Aplee. Br. (SJS) at 32 (“[I]mplicit in the defendants’ argument on
appeal, and what the defendants explicitly requested below, is a subjective
standard good faith instruction . . . .” (citation omitted)). In this regard, the
Schneiders argue as follows: “Although Dr. Schneider allowed that some mistakes
may have been made, he testified that his decisions were in fact motivated by the
desire to help his patients and based upon his own best medical judgments.” Aplt.
Opening Br. (SJS) at 50 (emphases added). As suggested supra, such a subjective
standard would not be consistent with federal law. See Aplee. Br. (SJS) at 32
(noting that “the courts have uniformly rejected” a subjective good-faith
                                                                          (continued...)

                                         -15-
fails to introduce any objective standard by which a physician’s prescribing

behavior can be judged. . . . Thus, the proposed instruction is contrary to [the

Supreme Court’s decision in] Moore.”); United States v. Norris, 780 F.2d 1207,

1209 (5th Cir. 1986) (“The district court . . . correctly rejected [the defendant’s]

proposed charge premised on a theory that a standard medical practice may be

based on an entirely subjective standard.”); cf. Moore, 423 U.S. at 142 n.20

(noting that “[t]he jury was instructed that [the physician defendant] could not be

convicted if he merely made ‘an honest effort’ to prescribe for detoxification in

compliance with an accepted standard of medical practice” (emphasis added)).

      I need not definitively decide whether my interpretation of the import of

the district court’s good-faith instruction is correct. The determinative point is

that it would not have been clear and obvious to the district court that its good-

faith instruction’s reference to the usual course of professional practice would

have had the allegedly impermissible effect of conditioning the jury’s finding of

good faith on its determination that Dr. Schneider was acting in the usual course

of professional practice. Thus, the district court would not have committed clear

or obvious error in using the instructions. Accordingly, on this basis, the

Schneiders’ challenge to the good-faith instruction could not prevail on plain-



      2
       (...continued)
standard).


                                         -16-
error review.

      The second reason that the Schneiders cannot establish that any error by the

district court concerning the good-faith instruction was clear or obvious is even

more fundamental. The Schneiders have not drawn our attention to any authority

from the Supreme Court or the Tenth Circuit that has invalidated a good-faith

instruction like the one here on a theory of error like the Schneiders advance.

See, e.g., United States v. DeChristopher, 695 F.3d 1082, 1091 (10th Cir. 2012)

(“In general, for an error to be contrary to well-settled law, either the Supreme

Court or this court must have addressed the issue.” (quoting United States v.

Thornburgh, 645 F.3d 1197, 1208 (10th Cir. 2011)) (internal quotation marks

omitted)); United States v. Wardell, 591 F.3d 1279, 1298 (10th Cir. 2009) (noting

that the defendant “does not identify any Supreme Court or Tenth Circuit

decisions that have addressed” his constitutional claim). Generally, such a

circumstance will close the door on a claim that the error at issue is clear or

obvious. Further, the cases from other circuits that the Schneiders do cite are not

directly on point and, insofar as they speak to the matter before us, they actually

appear in significant respect to follow a similar path as the district court here, in

imposing an objective standard on the good-faith defense. See, e.g., Armstrong,

550 F.3d at 398 (upholding instruction stating that “[a] controlled substance is

prescribed by a physician in the usual course of professional practice, and

therefore, lawfully, if the substance is prescribed by him or her in good faith,

                                          -17-
medically treating a patient in accordance with a standard of medical practice

generally recognized and accepted in the United States” (emphasis omitted));

Williams, 445 F.3d at 1309 (upholding an instruction with language similar to

that here, stating that “good faith” “means that the doctor acted in accordance

with what he reasonably believed to be proper medical practice”); Vamos, 797

F.2d at 1153 (discussing a good-faith instruction that indicates the term “means

that the doctor acted in accord with what he reasonably believed to be proper

medical practice” and holding that “an instruction that the jury should use an

objective standard of reasonableness in deciding whether a practitioner acted in

accord with what he believed to be proper medical practice is not improper and

does not amount to error”). Accordingly, for at least these two reasons,

consistent with the majority’s outcome, I would hold that the Schneiders’

challenge cannot prevail on plain-error review because they cannot establish that

the district court committed clear or obvious error.

                                         II

      I address here the Schneiders contention that there was insufficient

evidence to convict them of health-care fraud resulting in death, pursuant to 18

U.S.C. § 1347.

                                         A

      We review the record for sufficiency of the evidence de novo. See, e.g.,

United States v. Wilson, 107 F.3d 774, 778 (10th Cir. 1997). When reviewing the

                                        -18-
sufficiency of evidence underlying a verdict in a criminal case, we must affirm if,

viewing all the direct and circumstantial evidence in the light most favorable to

the government, a reasonable trier of fact would find the essential elements of the

crime beyond a reasonable doubt. See, e.g., United States v. Suntar Roofing, Inc.,

897 F.2d 469, 473 (10th Cir. 1990); United States v. Culpepper, 834 F.2d 879,

881 (10th Cir. 1987).

                                         B

      The Schneiders argue that the evidence presented was insufficient to

support the jury’s finding that any acts of alleged health-care fraud were the cause

of any patient deaths. See Aplt. Opening Br. (SJS) at 51. Counts 7–9 charged the

Schneiders not just with health-care fraud, but with health-care fraud resulting in

the serious bodily injury/death of three individuals—Patricia, Eric, and Robin.

See R., Vol. 4, at 149–53; 18 U.S.C. § 1347(a). The district court instructed the

jury as follows: “For you to find that serious bodily injury or death resulted from

the health care fraud committed by a defendant, the government must prove

beyond a reasonable doubt that the individual’s serious bodily injury or death was

a result of the health care fraud alleged.” R., Vol. 4, at 851. No challenge has

been raised to this instruction on appeal. Like the majority, I conclude that the

Schneiders’ sufficiency-of-the-evidence challenge is without merit. I write

separately to explicate the appropriate foundation for such a holding.




                                        -19-
                                          1

      The Schneiders claim that “[t]here was no evidence presented at trial that

possibly could support the conclusion that [their] alleged fraud itself was the

cause of any harm to any patient, let alone the cause of anyone’s death.” Aplt.

Opening Br. (SJS) at 52. More specifically, the Schneiders argue that there was

insufficient evidence to support the jury’s verdicts on the health-care fraud

charges in Counts 7–9 because their alleged conduct in submitting bills to a

health-care benefits program that contained false or misleading statements or

omissions was not itself the cause of harm to any patients. Id. at 53.

      Like the government, see Aplee. (SJS) Br. 59, the majority retorts that the

Schneiders’ health-care fraud scheme involved more than just the submission of

false or misleading bills—viz., more than just their “upcoding and billing

practices.” Maj. Op. at 17. Instead, reasons the majority, the fraudulent scheme

involved “the illegal distribution of drugs, which caused the deaths of three

patients.” Id. Generally speaking, I have no quarrel with the majority’s response.

However, the illegal distribution of drugs—by physicians or non-physicians—may

take place quite apart from a health-care fraud scheme, that is, without a nexus to

a health-care fraud scheme. In such a circumstance, deaths resulting from illegal

drug distribution could not give rise to criminal liability under § 1347. Therefore,

to bolster the majority’s conclusion, I write to further define the contours of the

nexus between the Schneiders’ illegal drug distribution and their health-care

                                        -20-
fraud; it is that nexus that permits the Schneiders to be held accountable under

§ 1347 for the deaths of the three individuals, Patricia, Eric, and Robin.

                                          2

      Section 1347 provides:

             Whoever knowingly and willfully executes, or attempts to
             execute, a scheme or artifice—

             (1) to defraud any health care benefit program; or

             (2) to obtain, by means of false or fraudulent pretenses,
             representations, or promises, any of the money or property owned
             by, or under the custody or control of, any health care benefit
             program,

             in connection with the delivery of or payment for health care
             benefits, items, or services, shall be fined under this title or
             imprisoned not more than 10 years, or both. If the violation
             results in serious bodily injury (as defined in section 1365 of this
             title), such person shall be fined under this title or imprisoned not
             more than 20 years, or both; and if the violation results in death,
             such person shall be fined under this title, or imprisoned for any
             term of years or for life, or both.

18 U.S.C. § 1347(a).

      The government presented sufficient evidence for a reasonable trier of fact

to find, first, that the Schneiders engaged in a health-care fraud scheme and,

second, that this scheme resulted in the deaths of three individuals. Considering

similar or analogous facts, the Sixth Circuit reached a very similar conclusion.

See United States v. Martinez, 588 F.3d 301, 321 (6th Cir. 2009) (“[A] rational

jury could have concluded that [the victim’s] death was a foreseeable result of


                                         -21-
[defendant’s health-care fraud] conduct. [Defendant] over-prescribed controlled

substances that led to [the victim’s] addiction to narcotics, and [defendant]

continued to perform unnecessary injections and prescribe harmful medications

despite the presence of the clear ‘red flags’ of escalating addiction.”).

      Other circuit courts also have issued rulings under various rationales that

support the conclusion here. See United States v. Merrill, 513 F.3d 1293,

1297–98 (11th Cir. 2008) (concluding that there was sufficient proof to support a

§ 1347 conviction resulting in death, where, inter alia, the “testimony and the

documentary evidence demonstrated that [defendant] wrote multiple prescriptions

for similar controlled substances for the same patient during the same visit; that

he wrote prescriptions for patients on whom he performed no or very minimal

physical examination” and “that he wrote prescriptions for patients whose

behavior and physical appearance should have raised suspicion that they were

addicted to controlled substances”); cf. United States v. Webb, 655 F.3d 1238,

1246–47, 1255–58 (11th Cir. 2011) (detailing a physician’s illegitimate

prescription-prescribing practices with regard to a patient who died, in connection

with rejecting defendant’s challenge to a jury instruction explicating the § 1347

offense resulting in death).

      Expert testimony and the Schneiders’ own records revealed at trial that

their actions resulted in Patricia, Eric, and Robin becoming addicted to

prescription drugs. See, e.g., R., Vol. 13, at 3132, 3138–39, 3181–82; R.,

                                         -22-
Vol. 14, at 516. As these patients’ conditions grew worse, Dr. Schneider’s

response was to escalate their prescription drugs, which eventually led to their

deaths from overdoses. See, e.g., R., Vol. 13, at 3132, 3181–82; R., Vol. 14,

at 516–17, 525–35. The evidence supports the jury’s finding that these patients

died from their prolonged treatment outside and contrary to the usual course of

professional medical practice—a pattern of treatment for which Dr. Schneider and

Ms. Schneider submitted false and fraudulent claims to health-care benefit

programs. See, e.g., R., Vol. 13, at 3149–51; R., Vol. 14, at 531–35. These

claims were false and fraudulent because, inter alia, they were claims for services

not rendered—viz., the claims were reportedly for the provision of legitimate

services rendered in the usual course of professional practice, when in fact Dr.

Schneider (aided and abetted by Ms. Schneider) furnished illegitimate services

and prescriptions, contrary to and outside of the usual course of professional

practice.

      Viewing this evidence in the light most favorable to the government, see

Suntar Roofing, 897 F.2d at 473, a reasonable factfinder could conclude beyond a

reasonable doubt that Dr. Schneider and Ms. Schneider were involved in a health-

care fraud scheme; that a key component of it was the provision of medical

services outside the usual course of professional practice through the illegal

distribution of drugs—for which false or fraudulent bills were submitted to

health-care benefit programs; and that, as a result of the provision of such

                                        -23-
medical services, three individuals (Patricia, Eric, and Robin) died. Thus, for the

foregoing reasons, like the majority, I reject the Schneiders attack on the

sufficiency of the evidence to support their § 1347 convictions.

                                         III

        I concur in much of the majority’s opinion—fully joining Parts A and B

and the portions of Part C not visited here—and also concur in the majority’s

ultimate ruling affirming the district court’s judgment.




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