Evidence Restrictions in Prosecution of Doctor/Nurse Reversed

for the district of kansas (id. at 157.) this . . . . are appealable if, and only if, they too fall within the collateral-order the bounds of medical practice." united states v. hurwitz, 459 f.3d 463, 475 (4th cir. - 12 - of the statute, have the practical effect of orders clearly covered. specifically, orders january 12, 2009, the court told the parties they must trim their witness lists "[s]o that richard a. friedman, appellate section, criminal division, united states department of - 10 - the charges. see united states v. janati, 374 f.3d 263, 273-75 (4th cir. 2004) ii. government's appeal - 7 - to the court, impossible given the activities of these procedure applications (including control of the docket and parties), and their decisions overruled on other grounds by eberhart v. united states, 546 u.s. 12 (2005); see also portion provided a `discrete basis for the imposition of criminal liability.'"). we found o'brien, circuit judge. rule of evidence 104(b) 7 be counting on winning it because this case is going to be confusion of the issues, or misleading the jury, or by considerations of undue delay, 11 may also present evidence of [the first named individual]'s death in order to expeditious disposition of cases"); united states v. nicholson, 983 f.2d 983, 988 (10th suppression orders and thereby brought within a liberal construction of the statute." 1243, 1256 (10th cir. 1998) (addressing court's expertise to determine appropriate controlled drugs at their family-owned clinic resulting in the deaths of numerous patients. a single continuing scheme exists is not necessary. charged conduct in count 5 and abused its discretion. therefore, the district court's see s. utah wilderness alliance v. bureau land mgmt., 425 f.3d 735, 745 n.2 (10th cir. information" to be made before trial. rule 12(c) authorizes the court to "set a deadline duplicitous by charging the schneiders with eighteen distinct violations of the statute in (citations and quotations omitted)). "trial courts are permitted to impose reasonable time government's ability to prosecute criminal activity any more than it can intrude upon a prescribes the substance either outside the usual course of medical practice or without a (1949). see tarrant regional water dist. v. sevenoaks, 545 f.3d 906, 914 n.5 (10th cir. the court: i'm not going to cut down the numbers of other patients. i effectively excludes the government's presentation of evidence and is therefore justice department to prosecute him for only five of the frauds, or to motion to designate the case as complex. the parties estimated trial would take allegations in the indictment." (id. at 113.) 841(a)(1); count 6 -- illegal distribution of a specific drug, actiq (fentanyl), to thirty- force when the issue is which crimes of a given criminal to prosecute. if merely excluded cumulative or prejudicial evidence. an appealable order under § 3731 id. at 349 (quoting sanabria v. united states, 437 u.s. 54, 65-66 (1978)). the united states constitution prohibits further prosecution. particular injustice [might be] averted does not provide a basis for jurisdiction under § on an assessment of the relative competence of prosecutors and courts. offenses in the same count of an indictment. united states v. haber, 251 f.3d 881, 888 were the result of an ongoing scheme to distribute drugs for purposes other than time i have to spend on it; and i've spent a lot of time on this deaths of over twenty patients creates a substantial risk that the passion of the jury will be this in mind. such limits should be sufficiently flexible to accommodate medical purposes in the usual course of his professional medical practice or were beyond indictment charged the schneiders with, among other things, impermissibly dispensing (2) resolved an important issue completely separate from the merits of the case, and (3) is - 3 - count against the schneiders.4 life plus, 317 f.3d at 807 (quotations omitted). "when there is an objection to the authority of the executive branch to design a criminal prosecution in the way it deems - 6 - thus, the inclusion of this charged conduct in one count in this instance, count 5 alleges eighteen incidents in violation of 18 u.s.c. § 841. an order issued two days later ruled: decision or order of a district court suppressing or excluding evidence . . . 3 benefit in the form of a greater likelihood of conviction or a more severe application of the collateral order doctrine is subject to a three-part test derived from the relationship to the government's overall enforcement plan are not readily judicial deference to the decisions of these executive officers rests in part defendants. (emphasis added). the question here is whether the district court's ruling was, in establish that the district court's order (1) conclusively determined the disputed question, it is not mere formalism, nor an irrational result, to require the government 9 (id. at 161-62.) the prosecutor asked for clarification as to the effect of the ruling on the experts' opinions, explaining the expert opinions were based on a review of over 100 "the government can take an interlocutory appeal only with specific statutory plead a former acquittal or conviction." a judge in our system does not have the authority to tell prosecutors which monday. and if you take an interlocutory appeal, you better would have no way of doing that. but what i am telling you "we may affirm on alternative grounds only when those grounds are dispositive, 2 punishment. publish - 4 - 2006) (quotations omitted); see also united states v. nelson, 383 f.3d 1227, 1231-32 so inflamed that the jury will be unable to engage in a rational analysis of the evidence." cir. 2003) (quotations omitted). "[t]he district court constantly produces legal product the court: you've got ten days to present your case. i don't care how (10th cir. 2001). prosecutor: i'm not asking that. 6 drugs for other than legitimate medical purposes. the government intends to prove the prevent cumulative, unnecessary and misleading evidence. caused to be distributed and dispensed, schedule 2, 3 and 4 controlled it is the government's decision, subject after a brief recess, the court stated: may be charged in a single count if they could be characterized as part of a single, essence, a dismissal of "any one or more counts, or any part thereof," or whether it the government also identified thirty-seven additional uncharged deaths which and any time limits formulated in advance of trial must be fashioned with fifth and fourteenth amendment right to due process and the sixth amendment right to a threat, and nobody threatens me in this courtroom ­ to take an to talk to me about it. defense, objection, or request not raised by the deadline the court sets under rule 12(c) or (appellee's br. at 27.) we agree presenting evidence of a doctor's responsibility for the commc'ns, inc. v. southwestern bell tel. co., 415 f.3d 1171, 1178 (10th cir. 2005)). [i]t may be an abuse of the trial court's discretion to exclude probative, steven j. schneider; linda k. the schneiders' cross-appeal for lack of jurisdiction. the schneiders claim the court's ruling may also be affirmed because count 5 is 5 an appeal by the united states shall lie to a court of appeals from a twenty counts of a seventy-count indictment because "[i]t would be a waste of judicial (id. at 163-64.) the court announced two sua sponte rulings which are the basis of this appeal. first, the though subject of course to judicial review to protect constitutional rights, 4 the separation of powers."). number of deaths will certainly cause delay and result in a needless the schneiders did not raise this issue to the district court. federal rule of might justify the granting of relief from the waiver." (quotations omitted)). we discern can take an interlocutory appeal from an order dismissing a portion of a count if the of "any portion" of a count. while the government's reasons for naming one patient each `if, and only if, they too fall within cohen's collateral-order exception to the final- conduct is necessary to establish the schneiders' knowledge and intent to dispense the united states court of appeals 16, 2009, the schneiders wrote the court to object to its time limitation, stating it "would from in or about january 2002, and continuing through in or about july - 13 - contend we may exercise jurisdiction pursuant to pendant jurisdiction or the collateral 10 court's order excluding evidence of all but one of the eighteen deaths charged in count 5 looked to the practical effect of the district court's ruling to determine jurisdiction. see count if the allegations are part of a single, continuing scheme. see united states v. exclude the government's expert testimony and its denial of a daubert10 similar offence, the record will show with accuracy to what extent he may substances to at least the below-listed individuals, which resulted in their permeating double jeopardy claims. other claims presented to, and indictment or information . . . as to any one or more counts, or any part than individually. a trial court's case management may not interfere with the d. conclusion waste of time, or needless presentation of cumulative evidence." discretion in appropriate cases to manage its docket by granting particular defendants to forge, utter and publish the sixty-four treasury checks . . . ." 75 f.3d at 1497. we - 19 - certifies to the district court that the appeal is not taken for purpose of delay (d.c. no. 6:07-cr-10234-mlb-1 & 2) treatment history and death of a single individual not named in count 5.1 the court's ruling criminal appeals act. while we need only find the absence of one of these elements to eliminate jurisdiction, (id. at 123.) prove the allegations in count 5. separate trials or disallowing cumulative testimony on a particular charge." zabawa, 39 well established that two or more acts, each of which alone could constitute an offense, evidence "if its probative value is outweighed by the danger of unfair prejudice, the district court was without authority, in effect, to dismiss the majority of the appeal based on the dismissal of a count charged in an indictment raises separation of (appx. at 79-80.) counts 2, 3 and 4 each contained specific allegations regarding the unfairly prejudicial. testimony would be largely redundant and would not impact the potential sentence to the potential to mislead the jury. moreover, the evidence of the large to sever offenses in an indictment because he believes that a trial of all the is not reviewable for a simple abuse of discretion. this principle is most exception to the final-judgment rule. cases interpreting abney appear to elisabeth a. shumaker cir. 1993) ("district courts generally are afforded great discretion regarding trial prosecuting twenty counts of a seventy-count indictment in an effort to manage its docket until the entry of final judgment would imperil a substantial public interest or some outweighed by confusion of issues, misleading the jury, and considerations when the relevancy of evidence depends upon the fulfillment of a condition defendant's opportunity to defend. united states v. eberhart, 388 f.3d 1043, 1051-52 (7th cir. 2004) (listing cases), a. limitation of evidence want it extended. necessary elements in count 5 or to negate any explanation of innocent mistake, the tried the way i say it's going to be tried. and i would rethink prosecutor: well, judge, i will be real honest with you. you know . . . . the record." (quotations and alterations omitted)). first, they argue the evidence relating - 2 - outright but argues it could have charged each named individual in count 5 as a separate in january 2008, the original presiding judge granted the government's unopposed interlocutory appeal. i will allow on count 5 the government to prove the susceptible to the kind of analysis the courts are competent to undertake. it w. williamson, jr., of williamson law firm, llc, kansas city, missouri (kevin p. non-cumulative evidence simply because its introduction will cause delay, effectively dismissed separately charged conduct brought by the government against b. alternative arguments practice, did knowingly and intentionally distribute and dispense, and separate crimes it has charged against defendants who are scheduled to be tried." id. we 18 u.s.c. § 1347; counts 10-17 -- health-care fraud in violation of 18 u.s.c. § 1347; and legitimate medical treatment. while the evidence is certainly prejudicial, it is not 2007, within the district of kansas, the defendants, . . . not for a legitimate defendant distributed or dispensed a controlled substance; (2) that the defendant acted justice, washington, d.c. (marietta parker, acting united states attorney, and tanya j. knowingly and intentionally; and (3) that the defendant's actions were not for legitimate limited the government to approximately five days to present its evidence which categorically foreclose pendent appellate jurisdiction in criminal cases. the schneiders argue zabawa may be distinguished because the court here did not we do not second-guess the government's permissible choice.5 -- conspiracy to unlawfully distribute drugs, commit health care fraud, engage in money- the court's evidentiary rulings are not appealable collateral orders. the the reduction in the counts "prevent[ed] it from presenting the necessary evidence to let me go back for a minute to the government's threat ­ which i consider - 17 - appellee. even assuming the schneiders' reasoning is correct, the record before us is insufficient to are not the subject of this appeal. taken as a whole, can be adequately vindicated by other means, the chance . . . a resources if the government were to parade into court thirty-five witnesses whose united states v. macdonald, 435 u.s. 850, 857 n. 6 (1978)). the schneiders' cross-appeal fails several turns. the admissibility of expert testimony is activity or prior bad acts; the government intends to prove the deaths alleged in count 5 crimes to prosecute or when to prosecute them. prosecutorial discretion prosecutor: excuse me. based on that ruling, judge, you've essentially in counts 2, 3 and 4, but eighteen individuals in count 5 remains somewhat of a mystery, pendant jurisdiction. "the supreme court has stated that pendant claims are appealable the criminal appeals act, 18 u.s.c. § 3731, provides in relevant part: in united states v. zabawa, the district court limited the government's case to zabawa, 39 f.3d at 285. in jaynes, "the united states filed a three-count indictment against [jaynes] and often invoked when the issue is whom to prosecute . . . but it has equal united states court of appeals the court finds under rule 403(b), that the probative value of the evidence (id. at 158-59). louisiana pacific corp., 106 f.3d at 348 (rejecting "a test under which the government be ignored, because an important function of the indictment is to ensure schneiders were aware of the patients' overdose deaths but did nothing to change their - 8 - management treatment including the prescription of controlled substances. on december to the treatment and deaths of the seventeen individuals is not relevant under federal appeal for lack of jurisdiction. plaintiff - appellant / cross- have five days to present a case. that is, with all due respect prior to the 2002 amendment to § 3731, we required the dismissal of an entire argument that the issues are unreviewable because a more exacting standard will apply on (10th cir. 2004) ("a practitioner has unlawfully distributed a controlled substance if she while each count of an indictment is considered a single offense, a single count cross-examination. it did not explain why it imposed the limitation and did not address adjustment if it appears during trial that the court's initial assessment was counts . . . . "the precise manner in which an indictment is drawn cannot does not change the substance of the charges or the effect of the district court's ruling. and the government's right to prove its case"); see also united states v. rodriguez-felix, 5 and we would probably have to take an interlocutory appeal inquiring whether this particular patient was the government's strongest representative of id. at 1502. the schneiders do not argue the separate deaths could not be part of one order doctrine. the parties estimated the case would take eight weeks. without consulting the judgment rule.'" tarrant, 543 f.3d at 914 (quoting abney v. united states, 431 u.s. 651, count 5, i find under rule 403 that the probative value is substantially fraud resulting in the deaths of the three individuals named in counts 2-4 in violation of deaths other than the four" allowed by the court's ruling. (id. at 162.) the exchange tenth circuit nos. 09-3028 and 09-3045 earlier motions to exclude the government's expert testimony, claiming error under rule and publishing the same checks . . . . count three charged the defendants with conspiring no basis in the statute for such a test and noted: - 14 - appellant / cross-appellee. the schneiders do not argue the district court's order is a final order. rather, they [make it] impossible to provide an adequate . . . defense, given the scope of the indictment as duplicitous. under rule 12(e), "[a] party waives any rule 12(b)(3) legitimate medical purpose."). the government maintains the evidence of the charged in counts 2, 3 and 4, explaining: "this is a rule 403 ruling . . . ."2 case on. if you don't get it on, then i will kick the counts out case. the schneiders cross-appeal from the district court's denial of their motion to the provisions of this section shall be liberally construed to effectuate its because it is unknown at this point how much of this evidence is needed to establish the in abney, 431 u.s. at 662, the supreme court held that a defendant could excluding evidence for the purposes of case management is reviewed for abuse of filed a motion to dismiss the cross-appeal for lack of jurisdiction. how it would consider time spent on motions, bench conferences and other matters. and operated schneider medical clinic in haysville, kansas, where they provided pain practices. thus, it argues, evidence of the charged conduct in count 5 is necessary. under rule 403. the power of district courts to manage their dockets is deeply ingrained a defendant although not reaching a unanimous agreement on precisely which charge is length of time my witnesses are on [direct examination]. i not made after the defendant has been put in jeopardy and before the verdict 1291." id. (quotations omitted). because . . . they get to cross-examine my witnesses, and . . . i 17, 2008, a kansas grand jury issued a second superseding indictment charging: count 1 remand the court will proceed in a manner consistent with this order and accord a fair that this court is without pendent jurisdiction over appellees' cross-appeal.") (citing compulsory process." (quotations omitted)). because our resolution of the first issue the schneiders cross-appeal from the district court's denial of their motion to assume that they [will] cross-examine my witnesses for the to plead allegations in separate counts, a minimal burden, in order to or finding on an indictment or information, if the united states attorney we also reject the schneiders' argument that this court should take discretionary already. osteopathy and his wife, linda schneider, was a licensed practical nurse. they owned appeal. ground. were all part of a single scheme and thus properly charged in a single count"). management powers. id. at 284 (district court's pretrial order limiting the government to supreme court's decision in cohen v. beneficial indus. loan corp., 337 u.s. 541 we quoted with approval the seventh circuit's reasoning in united states v. necessarily vested in courts to manage their own affairs so as to achieve the orderly and the court: ten days. sit down please. you've got ten days to put your defendants - appellees / cross-appellants. evidence of the three charged deaths in counts 2, 3 and 4. the government directing the government to take action and specifically providing for the exclusion of laundering, and defraud the united states in violation of 18 u.s.c. § 371; counts 2-5 -- appeal is unpersuasive and unsupported by authority. "as long as the class of claims, government from fairly presenting its case. 702 of the federal rules of evidence. the government moved to dismiss the cross- july 2, 1993 . . . . count two charged the defendants with unlawfully passing, uttering by any extension the court provides." however, "[f]or good cause, the court may grant case, the court set the deadline for may 16, 2008, but the schneiders did not challenge the the allegations in count 5. 678, 2009 wl 4573276, *5 (dec. 8, 2009) (quotations omitted). the schneiders' medical purpose and outside the usual course of professional medical pretrial orders are vacated and the case remanded. we are confident that on thus, pendant jurisdiction is equally unavailable. because we lack eugene v. gorokhov of eugene v. gorokhov, pllc, arlington, virginia, and lawrence the allegations in count 5 charged: discretion in appropriate cases to manage its docket," but found "the district court's is you've got ten days to put your case on. think about it. iii. cross-appeal 7 files. the court ruled the opinion would not be allowed "if it mentioned the patient the court: then it's dismissed. schneiders adequate time to present their defense. otherwise be separate counts if the alleged violations "were all part of a single scheme." i. background we have permitted one count in an indictment to contain multiple charges that may rejected by, the district court in passing on the accused's motion to dismiss limits on the presentation of evidence to prevent undue delay, waste of time, or needless presentation of cumulative evidence. the government may present the language "or any part thereof" was added by a 2002 amendment to deaths alleged in count 5 are duplicitous. prosecutor: well, judge, that's really five days if you think about it - 11 - stated, "[u]nless the district court rests its decision on the need to protect or preserve approximately eight weeks. the case was reassigned to the current judge on march 17, potential jury confusion. see id. at 1503 n. 7; see also united states v. sasser, 971 f.2d byers of kevin p. byers company, l.p.a., columbus, ohio, with them on the briefs) for 450 f.3d 1117, 1121 (10th cir. 2006) ("the right to present a defense is anchored in the defendants - appellees / effectively unreviewable on appeal from a final judgment." id. (quoting crystal clear at the january 26, 2009 status conference--one week before trial was to begin-- core executive constitutional function. at the time relevant to the indictment, stephen schneider was a doctor of 8 alters the scope of the evidence to be presented at trial, we decline to address the second (10th cir. 1997) ("§ 3731 can apply to rulings which, though nominally outside the scope charge sixty-four forgeries of the same name on checks because "the alleged forgeries unreasonable limitations are imposed on the defendant's opportunity to defend against v. seven named individuals in violation of 21 u.s.c. § 841(a)(1); counts 7-9 -- health-care and that the evidence is a substantial proof of a fact material in the proved. second, they claim the indictment is infirm because the seventeen additional not conclusively determined because the district court may modify its ruling at trial. - 9 - exclude the government's expert testimony. exercising jurisdiction under 18 u.s.c. § the government asserts the district court unreasonably restricted the time allowed for the parties to make pretrial motions and may also schedule a motion hearing." in this actually dismiss count 5. rather, it merely limited the government to evidence sufficient 470, 478 (10th cir. 1992).9 clerk of court that, in case any other proceedings are taken against the defendant for a dismissed count 5 of the indictment. counts 18-34 -- money-laundering in violation of 18 u.s.c. § 1957. also stems from a concern not to unnecessarily impair the performance of a which defendants would be exposed." id. at 283. the government appealed, claiming convict all defendants." id. at 284. we recognized "a district court has reasonable deaths of over twenty patients may have a profound effect on the jury, but that is the are reviewed only for abuse of discretion."). "certainly a district court has reasonable what the government charges but i can control how much its case -- as is its right ­ as well as the potential for serious constitutional violations if 3731, we vacate the district court's trial restrictions and remand. we dismiss of over sixty deaths is substantially outweighed by confusion of issues and resides in the executive, not in the judicial, branch, and that discretion, scheme and we are not persuaded by the schneiders' argument that, due to the count 5 of the indictment charged the schneiders with illegally distributing drugs to opportunity for the government to present the entirety of its case and provide the count before appellate jurisdiction attached, rejecting the reasoning of those courts who 663 (1977)).11 even if the issue is separate from the merits of the case a court's evidentiary rulings are although the court implied the time limit was inflexible and would not be changed united states of america, regardless of what evidence may be properly admitted, its position was taken prior to our seventeen of the eighteen allegations in count 5.6 jaynes, 75 f.3d 1493, 1502 (10th cir. 1996) (holding it is permissible for one count to complexity of this case, a specific unanimity instruction cannot be relied upon to cure except that no appeal shall lie where the double jeopardy clause of continuing scheme." jaynes, 75 f.3d at 1502. a specific allegation within the count that - 16 - of fact, the court shall admit it upon, or subject to, the introduction of ruling on the first issue. the district court is aware of the government's need to present rule 104(b) provides: clearly reviewable on appeal. "[t]he decisive consideration is whether delaying review however, the 2002 amendment now specifically allows appeal from the dismissal protections for defendants, not for judges . . . . no rule authorizes the judge indisputably determine the issue. accordingly, we decline to affirm on this alternative f.3d at 284. but such restrictions may be imposed only when they do not foreclose the no reason to grant the schneiders relief from their waiver. the schneiders claim the evidence "that dr. schneider was responsible for the this is not to say the trial court may not exclude some of this evidence at trial c. time limit set by court went "beyond [rulings] subject to the court's discretionary control and impinge[d] upon preserve its right to take an interlocutory appeal of the dismissal of such continued: attorney fees). nonetheless: - 18 - ruling force[d] the government to abandon, at least temporarily, the prosecution of requiring the government to establish the reliability of its evidence. the government may include multiple allegations of illegal acts which could have been pled as a single are judicially enforceable checks on discretion to indict. but they are purposes. serious bodily injury and deaths: [listing eighteen names]. that's all. i'm not having argument about this. i can't help too restrictive. in a criminal case an appeal by the united states shall lie to a court of the basis for the conviction. jaynes, 75 f.3d at 1503 n.7. as discussed above, however, time the jury spends listening to the evidence and how much constitutional rights, it may not interfere with the prosecutorial function." id. rule 403 of the federal rules of evidence provides for the exclusion of relevant 2008, and at a status conference on april 15, 2008, trial was set for february 2, 2009. on eighteen patients, resulting in death. the target of the government's appeal is the district exclusion of evidence as a result of time limits, the record must show a proper basis or that you don't cover. that's it. the defendants get ten days. hearing cautioned that its holding was based on the special considerations appeals from a decision, judgment, or order of a district court dismissing an jurisdiction over the schneiders' cross-appeal, it is dismissed. united states v. dibernardo, 775 f.2d 1470, 1474 n.8 (11th cir. 1985) ("it is also clear court addressed the length of the trial stating: "i appreciate the defense counsels' letter, shortly thereafter, the schneiders filed a cross-appeal from the court's denial of their treadway, assistant united states attorney, for the district of kansas) for plaintiff - in our jurisprudence. see, e.g., link v. wabash r.r. co., 370 u.s. 626, 630-31 (1962) thereof,3 because its relevance is conditioned on facts which cannot be significantly, the trial court merely picked the first name listed rather than - 15 - but i'm sticking to four to five weeks . . . . i think that this case can be tried in that period presentation of cumulative evidence." life plus int'l v. brown, 317 f.3d 799, 807 (8th deterrence value, the government's enforcement priorities, and the case's its prosecutorial discretion and reaches beyond the bounds of the court's discretionary prosecutor: well, judge, i don't believe you have a basis to dismiss count cross-appellants. to constitutional protections, whether to charge these allegations in a single count rather discretion. see united states v. zabawa, 39 f.3d 279, 283 (10th cir. 1994). however, an february 8, 2010 particular value of a high order." mohawk inc., inc. v. carpenter, 558 u.s. ---, no. 08- considered an `inherent power,' governed not by rule or statute but by the control 1 powers concerns which may render the court's ruling beyond its discretionary case count 5 but is merely a proper exercise of the court's authority to manage the case to one count.8 of time and i will count on it being tried." (id. at 155.) the court then ruled the reviewable under 18 u.s.c. § 3731. see united states v. mcveigh, 106 f.3d 325, 330 n.3 and manages trials and, therefore, is somewhat of an expert in the time that is required to indisputable, and appear clearly in the record." roberts v. barrerra, 484 f.3d 1236, 1244 duplicity is defined as the joinder of two or more distinct and separate criminal colloquy followed: immediately appeal, under the collateral order doctrine, the denial of a medical clinic, to prove the charge. the government concedes the district court did not dismiss count 5 (addressing "the appropriate balance between the district court's right to manage trials the court: well you go right ahead and do that. but this case starts next relief from the waiver." id.; see also haber, 251 f.3d at 889 ("in some circumstances, a counts charged would clog his docket without yielding any offsetting (holding that a trial court's power to dismiss for lack of prosecution "has generally been multiple charges in one count may present a danger that the jury may convict this case can be tried reasonably within four to five weeks." (appx. at 149.) on january daubert v. merrell dow pharm., inc., 509 u.s. 579 (1993). precise conduct for which the schneiders are charged. this is not evidence of collateral the district court erred in its wholesale exclusion of all evidence relating to united states v. armstrong, 517 u.s. 456, 465 (1996) (quotations and citations omitted). (10th cir. 2007) (unable to rule on an alternative ground because the record unclear) issue. criminal procedure 12(b)(3)(b) requires "a motion alleging a defect in the indictment or evidence sufficient to support a finding of the fulfillment of the condition. conduct litigation." case v. unified schl. dist. no. 233, johnson county, kan., 157 f.3d motion to dismiss raising a double jeopardy defense . . . . the court on that. the government filed this interlocutory appeal challenging the court's rulings. - 5 - these defendants. in this way, the district court's order impermissibly intruded upon the 1141 (8th cir. 2007). proceeding . . . . appeal from the united states district court the schneiders also claim we can affirm the district court on two other grounds. illegal distribution of drugs resulting in patient deaths in violation of 21 u.s.c. § related evidence in the event of noncompliance have been deemed conditional court's premature conclusions impermissibly attempted to trim the government's case. 2005) ("an appellee may defend the judgment won below on any ground supported by for it to present its case at trial. they claim that, as a practical matter, the district court "to convict a doctor for violating § 841, the government must prove: (1) that the prosecute him for five now and the rest later, if necessary. of course there it is doubtful whether pendant jurisdiction even applies to a § 3731 cross- and the court's placement of a ten-day limitation on the government's time to present its authority." united states v. louisiana pacific corp., 106 f.3d 345, 348 (10th cir. 1997). parties, and over their objections, the district court allotted each side ten days, including the prosecution of stephen and linda schneider (the schneiders). a thirty-four count dr. giannattasio committed fifteen medicare frauds, a judge cannot tell the before tacha, o'brien, and gorsuch, circuit judges. 2008). "to establish jurisdiction under the collateral order doctrine, defendants must (quotations omitted). we reject the schneiders' argument under rule 104(b) because, defendant can raise a late challenge to a duplicitous indictment if cause is shown that schneider, also known as linda this is an interlocutory appeal by the united states from a pre-trial order issued in control. the schneiders argue the order's limitation of evidence is not a dismissal of cited united states v. shorter, 809 f.2d 54, 56 (d.c. cir. 1987) for the proposition, "it is her husband . . . . count one charged the defendants with forging the name of julia a. charge regarding [the first named individual]. as to the other deaths in such factors as the strength of the case, the prosecution's general giannattasio, 979 f.2d 98, 100 (7th cir. 1992): explanation by the district court for the exclusion." harris v. chand, 506 f.3d 1135, most prudent. government's evidence of patient deaths would be limited to the three individuals named the court: i am not extending this case to . . . however long the counsel that if i were you. and you better have your boss down here filed the government maintains the district court's ruling impermissibly interferes with atterbury, doing business as schneider tenth circuit you do it. that's not my job. i think you can. of delay, waste of time and also presentation of cumulative evidence. jones on sixty-four united states treasury checks . . . dated from may 2, 1988, through