PUBLISH

UNITED STATES COURT OF APPEALS 

TENTH CIRCUIT 

UNITED STATES OF AMERICA, 

Plaintiff - Appellant / CrossAppellee. 

v. 

STEVEN J. SCHNEIDER; LINDA K. 

SCHNEIDER, also known as Linda 

Atterbury, doing business as Schneider 

Medical Clinic, 

Defendants - Appellees / 

Cross-Appellants. 

Nos. 09-3028 and 09-3045 

Appeal from the United States District Court 

for the District of Kansas 

(D.C. No. 6:07-CR-10234-MLB-1 & 2) 

Richard A. Friedman, Appellate Section, Criminal Division, United States Department of 

Justice, Washington, D.C. (Marietta Parker, Acting United States Attorney, and Tanya J. 

Treadway, Assistant United States Attorney, for the District of Kansas) for Plaintiff - 

Appellant / Cross-Appellee. 

Eugene V. Gorokhov of Eugene V. Gorokhov, PLLC, Arlington, Virginia, and Lawrence 

W. Williamson, Jr., of Williamson Law Firm, LLC, Kansas City, Missouri (Kevin P. 

Byers of Kevin P. Byers Company, L.P.A., Columbus, Ohio, with them on the briefs) for 

Defendants - Appellees / Cross-Appellants. 

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

O’BRIEN, Circuit Judge. 

FILED 

United States Court of Appeals 

Tenth Circuit 

February 8, 2010

Elisabeth A. Shumaker 

Clerk of Court

Appellate Case: 09-3028 Document: 01018362828 Date Filed: 02/08/2010 Page: 1 
- 2 - 

This is an interlocutory appeal by the United States from a pre-trial order issued in 

the prosecution of Stephen and Linda Schneider (the Schneiders). A thirty-four count 

indictment charged the Schneiders with, among other things, impermissibly dispensing 

controlled drugs at their family-owned clinic resulting in the deaths of numerous patients. 

Count 5 of the indictment charged the Schneiders with illegally distributing drugs to 

eighteen patients, resulting in death. The target of the government’s appeal is the district 

court’s order excluding evidence of all but one of the eighteen deaths charged in Count 5 

and the court’s placement of a ten-day limitation on the government’s time to present its 

case. The Schneiders cross-appeal from the district court’s denial of their motion to 

exclude the government’s expert testimony. Exercising jurisdiction under 18 U.S.C. § 

3731, we VACATE the district court’s trial restrictions and REMAND. We DISMISS 

the Schneiders’ cross-appeal for lack of jurisdiction. 

I. BACKGROUND 

At the time relevant to the indictment, Stephen Schneider was a doctor of 

osteopathy and his wife, Linda Schneider, was a licensed practical nurse. They owned 

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

management treatment including the prescription of controlled substances. On December 

17, 2008, a Kansas grand jury issued a second superseding indictment charging: Count 1 

-- conspiracy to unlawfully distribute drugs, commit health care fraud, engage in moneylaundering, and defraud the United States in violation of 18 U.S.C. § 371; Counts 2-5 -- 

illegal distribution of drugs resulting in patient deaths in violation of 21 U.S.C. § 

Appellate Case: 09-3028 Document: 01018362828 Date Filed: 02/08/2010 Page: 2 
- 3 - 

841(a)(1); Count 6 -- illegal distribution of a specific drug, Actiq (fentanyl), to thirtyseven named individuals in violation of 21 U.S.C. § 841(a)(1); Counts 7-9 -- health-care 

fraud resulting in the deaths of the three individuals named in Counts 2-4 in violation of 

18 U.S.C. § 1347; Counts 10-17 -- health-care fraud in violation of 18 U.S.C. § 1347; and 

Counts 18-34 -- money-laundering in violation of 18 U.S.C. § 1957. 

The allegations in Count 5 charged: 

From in or about January 2002, and continuing through in or about July 

2007, within the District of Kansas, the defendants, . . . not for a legitimate 

medical purpose and outside the usual course of professional medical 

practice, did knowingly and intentionally distribute and dispense, and 

caused to be distributed and dispensed, Schedule 2, 3 and 4 controlled 

substances to at least the below-listed individuals, which resulted in their 

serious bodily injury and deaths: [listing eighteen names]. 

(Appx. at 79-80.) Counts 2, 3 and 4 each contained specific allegations regarding the 

treatment history and death of a single individual not named in Count 5.1

In January 2008, the original presiding judge granted the government’s unopposed 

motion to designate the case as complex. The parties estimated trial would take 

approximately eight weeks. The case was reassigned to the current judge on March 17, 

2008, and at a status conference on April 15, 2008, trial was set for February 2, 2009. On 

January 12, 2009, the court told the parties they must trim their witness lists “[s]o that 

this case can be tried reasonably within four to five weeks.” (Appx. at 149.) On January 

16, 2009, the Schneiders wrote the court to object to its time limitation, stating it “would 

[make it] impossible to provide an adequate . . . defense, given the scope of the 

 1

 The government also identified thirty-seven additional uncharged deaths which 

are not the subject of this appeal. 

Appellate Case: 09-3028 Document: 01018362828 Date Filed: 02/08/2010 Page: 3 
- 4 - 

allegations in the Indictment.” (Id. at 113.) 

At the January 26, 2009 status conference—one week before trial was to begin—

the court announced two sua sponte rulings which are the basis of this appeal. First, the 

court addressed the length of the trial stating: “I appreciate the defense counsels’ letter, 

but I’m sticking to four to five weeks . . . . I think that this case can be tried in that period 

of time and I will count on it being tried.” (Id. at 155.) The court then ruled the 

government’s evidence of patient deaths would be limited to the three individuals named 

in Counts 2, 3 and 4, explaining: “This is a Rule 403 ruling . . . .”2

 (Id. at 157.) This 

colloquy followed: 

Prosecutor: Excuse me. Based on that ruling, Judge, you’ve essentially 

dismissed Count 5 of the Indictment. 

The Court: Then it’s dismissed. 

Prosecutor: Well, Judge, I don’t believe you have a basis to dismiss Count 

5 and we would probably have to take an interlocutory appeal 

on that. 

The Court: Well you go right ahead and do that. But this case starts next 

Monday. And if you take an interlocutory appeal, you better 

be counting on winning it because this case is going to be 

tried the way I say it’s going to be tried. And I would rethink 

that if I were you. And you better have your boss down here 

to talk to me about it. 

(Id. at 158-59). 

After a brief recess, the court stated: 

 2

 Rule 403 of the Federal Rules of Evidence provides for the exclusion of relevant 

evidence “if its probative value is outweighed by the danger of unfair prejudice, 

confusion of the issues, or misleading the jury, or by considerations of undue delay, 

waste of time, or needless presentation of cumulative evidence.” 

Appellate Case: 09-3028 Document: 01018362828 Date Filed: 02/08/2010 Page: 4 
- 5 - 

Let me go back for a minute to the Government’s threat – which I consider 

a threat, and nobody threatens me in this courtroom – to take an 

interlocutory appeal. I will allow on Count 5 the government to prove the 

charge regarding [the first named individual]. As to the other deaths in 

count 5, I find under Rule 403 that the probative value is substantially 

outweighed by confusion of issues, misleading the jury, and considerations 

of delay, waste of time and also presentation of cumulative evidence. 

(Id. at 161-62.) The prosecutor asked for clarification as to the effect of the ruling on the 

experts’ opinions, explaining the expert opinions were based on a review of over 100 

files. The court ruled the opinion would not be allowed “if it mentioned the patient 

deaths other than the four” allowed by the court’s ruling. (Id. at 162.) The exchange 

continued: 

The Court: I’m not going to cut down the numbers of other patients. I 

would have no way of doing that. But what I am telling you 

is you’ve got ten days to put your case on. Think about it. 

Prosecutor: Well, judge, that’s really five days if you think about it 

because . . . they get to cross-examine my witnesses, and . . . I 

assume that they [will] cross-examine my witnesses for the 

length of time my witnesses are on [direct examination]. I 

have five days to present a case. That is, with all due respect 

to the Court, impossible given the activities of these 

defendants. 

The Court: You’ve got ten days to present your case. I don’t care how 

you do it. That’s not my job. I think you can. 

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

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

want it extended. 

Prosecutor: I’m not asking that. 

The Court: Ten days. Sit down please. You’ve got ten days to put your 

case on. If you don’t get it on, then I will kick the counts out 

that you don’t cover. That’s it. The Defendants get ten days. 

That’s all. I’m not having argument about this. I can’t help 

Appellate Case: 09-3028 Document: 01018362828 Date Filed: 02/08/2010 Page: 5 
- 6 - 

what the Government charges but I can control how much 

time the jury spends listening to the evidence and how much 

time I have to spend on it; and I’ve spent a lot of time on this 

already. 

(Id. at 163-64.) 

An order issued two days later ruled: 

The court finds under Rule 403(b), that the probative value of the evidence 

of over sixty deaths is substantially outweighed by confusion of issues and 

the potential to mislead the jury. Moreover, the evidence of the large 

number of deaths will certainly cause delay and result in a needless 

presentation of cumulative evidence. The government may present 

evidence of the three charged deaths in counts 2, 3 and 4. The government 

may also present evidence of [the first named individual]’s death in order to 

prove the allegations in count 5. 

(Id. at 123.) 

The government filed this interlocutory appeal challenging the court’s rulings. 

Shortly thereafter, the Schneiders filed a cross-appeal from the court’s denial of their 

earlier motions to exclude the government’s expert testimony, claiming error under Rule 

702 of the Federal Rules of Evidence. The government moved to dismiss the crossappeal for lack of jurisdiction. 

II. GOVERNMENT’S APPEAL 

A. Limitation of Evidence 

“The government can take an interlocutory appeal only with specific statutory 

authority.” United States v. Louisiana Pacific Corp., 106 F.3d 345, 348 (10th Cir. 1997). 

The Criminal Appeals Act, 18 U.S.C. § 3731, provides in relevant part: 

In a criminal case an appeal by the United States shall lie to a court of 

appeals from a decision, judgment, or order of a district court dismissing an 

indictment or information . . . as to any one or more counts, or any part 

Appellate Case: 09-3028 Document: 01018362828 Date Filed: 02/08/2010 Page: 6 
- 7 - 

thereof,

3

 except that no appeal shall lie where the double jeopardy clause of 

the United States Constitution prohibits further prosecution. 

An appeal by the United States shall lie to a court of appeals from a 

decision or order of a district court suppressing or excluding evidence . . . 

not made after the defendant has been put in jeopardy and before the verdict 

or finding on an indictment or information, if the United States attorney 

certifies to the district court that the appeal is not taken for purpose of delay 

and that the evidence is a substantial proof of a fact material in the 

proceeding . . . . 

The provisions of this section shall be liberally construed to effectuate its 

purposes. 

(Emphasis added). The question here is whether the district court’s ruling was, in 

essence, a dismissal of “any one or more counts, or any part thereof,” or whether it 

merely excluded cumulative or prejudicial evidence. An appealable order under § 3731 

excluding evidence for the purposes of case management is reviewed for abuse of 

discretion. See United States v. Zabawa, 39 F.3d 279, 283 (10th Cir. 1994). However, an 

appeal based on the dismissal of a count charged in an indictment raises separation of 

powers concerns which may render the court’s ruling beyond its discretionary case 

management powers. Id. at 284 (district court’s pretrial order limiting the government to 

prosecuting twenty counts of a seventy-count indictment in an effort to manage its docket 

went “beyond [rulings] subject to the court’s discretionary control and impinge[d] upon 

the separation of powers.”). 

The government maintains the district court’s ruling impermissibly interferes with 

its prosecutorial discretion and reaches beyond the bounds of the court’s discretionary 

 3

 The language “or any part thereof” was added by a 2002 amendment to 

Criminal Appeals Act. 

Appellate Case: 09-3028 Document: 01018362828 Date Filed: 02/08/2010 Page: 7 
- 8 - 

control. The Schneiders argue the order’s limitation of evidence is not a dismissal of 

Count 5 but is merely a proper exercise of the court’s authority to manage the case to 

prevent cumulative, unnecessary and misleading evidence. 

In United States v. Zabawa, the district court limited the government’s case to 

twenty counts of a seventy-count indictment because “[i]t would be a waste of judicial 

resources if the Government were to parade into court thirty-five witnesses whose 

testimony would be largely redundant and would not impact the potential sentence to 

which defendants would be exposed.” Id. at 283. The government appealed, claiming 

the reduction in the counts “prevent[ed] it from presenting the necessary evidence to 

convict all defendants.” Id. at 284. We recognized “a district court has reasonable 

discretion in appropriate cases to manage its docket,” but found “the district court’s 

ruling force[d] the government to abandon, at least temporarily, the prosecution of 

separate crimes it has charged against defendants who are scheduled to be tried.” Id. We 

stated, “[u]nless the district court rests its decision on the need to protect or preserve 

constitutional rights, it may not interfere with the prosecutorial function.” Id.

We quoted with approval the Seventh Circuit’s reasoning in United States v. 

Giannattasio, 979 F.2d 98, 100 (7th Cir. 1992): 

A judge in our system does not have the authority to tell prosecutors which 

crimes to prosecute or when to prosecute them. Prosecutorial discretion 

resides in the executive, not in the judicial, branch, and that discretion, 

though subject of course to judicial review to protect constitutional rights, 

is not reviewable for a simple abuse of discretion. This principle is most 

often invoked when the issue is whom to prosecute . . . but it has equal 

force when the issue is which crimes of a given criminal to prosecute. If 

Dr. Giannattasio committed fifteen Medicare frauds, a judge cannot tell the 

Appellate Case: 09-3028 Document: 01018362828 Date Filed: 02/08/2010 Page: 8 
- 9 - 

Justice Department to prosecute him for only five of the frauds, or to 

prosecute him for five now and the rest later, if necessary. Of course there 

are judicially enforceable checks on discretion to indict. But they are 

protections for defendants, not for judges . . . . No rule authorizes the judge 

to sever offenses in an indictment because he believes that a trial of all the 

counts charged would clog his docket without yielding any offsetting 

benefit in the form of a greater likelihood of conviction or a more severe 

punishment. 

Zabawa, 39 F.3d at 285. 

The Schneiders argue Zabawa may be distinguished because the court here did not 

actually dismiss Count 5. Rather, it merely limited the government to evidence sufficient 

to prove the charge. The government concedes the district court did not dismiss Count 5 

outright but argues it could have charged each named individual in Count 5 as a separate 

count against the Schneiders.4

 Thus, the inclusion of this charged conduct in one count 

does not change the substance of the charges or the effect of the district court’s ruling. 

Prior to the 2002 amendment to § 3731, we required the dismissal of an entire 

count before appellate jurisdiction attached, rejecting the reasoning of those courts who 

looked to the practical effect of the district court’s ruling to determine jurisdiction. See 

Louisiana Pacific Corp., 106 F.3d at 348 (rejecting “a test under which the government 

can take an interlocutory appeal from an order dismissing a portion of a count if the 

portion provided a ‘discrete basis for the imposition of criminal liability.’”). We found 

 4

 While each count of an indictment is considered a single offense, a single count 

may include multiple allegations of illegal acts which could have been pled as a single 

count if the allegations are part of a single, continuing scheme. See United States v. 

Jaynes, 75 F.3d 1493, 1502 (10th Cir. 1996) (holding it is permissible for one count to 

charge sixty-four forgeries of the same name on checks because “the alleged forgeries 

were all part of a single scheme and thus properly charged in a single count”). 

Appellate Case: 09-3028 Document: 01018362828 Date Filed: 02/08/2010 Page: 9 
- 10 - 

no basis in the statute for such a test and noted: 

It is not mere formalism, nor an irrational result, to require the government 

to plead allegations in separate counts, a minimal burden, in order to 

preserve its right to take an interlocutory appeal of the dismissal of such 

counts . . . . “The precise manner in which an indictment is drawn cannot 

be ignored, because an important function of the indictment is to ensure 

that, in case any other proceedings are taken against the defendant for a 

similar offence, the record will show with accuracy to what extent he may 

plead a former acquittal or conviction.” 

Id. at 349 (quoting Sanabria v. United States, 437 U.S. 54, 65-66 (1978)). 

However, the 2002 amendment now specifically allows appeal from the dismissal 

of “any portion” of a count. While the government’s reasons for naming one patient each 

in Counts 2, 3 and 4, but eighteen individuals in Count 5 remains somewhat of a mystery, 

we do not second-guess the government’s permissible choice.5

 The court’s ruling 

effectively dismissed separately charged conduct brought by the government against 

these defendants. In this way, the district court’s order impermissibly intruded upon the 

authority of the executive branch to design a criminal prosecution in the way it deems 

most prudent. 

This is not to say the trial court may not exclude some of this evidence at trial 

 5

 In Jaynes, “the United States filed a three-count indictment against [Jaynes] and 

her husband . . . . Count one charged the defendants with forging the name of Julia A. 

Jones on sixty-four United States Treasury checks . . . dated from May 2, 1988, through 

July 2, 1993 . . . . Count two charged the defendants with unlawfully passing, uttering 

and publishing the same checks . . . . Count three charged the defendants with conspiring 

to forge, utter and publish the sixty-four Treasury checks . . . .” 75 F.3d at 1497. We 

cited United States v. Shorter, 809 F.2d 54, 56 (D.C. Cir. 1987) for the proposition, “it is 

well established that two or more acts, each of which alone could constitute an offense, 

may be charged in a single count if they could be characterized as part of a single, 

continuing scheme.” Jaynes, 75 F.3d at 1502. A specific allegation within the count that 

a single continuing scheme exists is not necessary. 

Appellate Case: 09-3028 Document: 01018362828 Date Filed: 02/08/2010 Page: 10 
- 11 - 

under Rule 403. The power of district courts to manage their dockets is deeply ingrained 

in our jurisprudence. See, e.g., Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962) 

(holding that a trial court's power to dismiss for lack of prosecution “has generally been 

considered an ‘inherent power,’ governed not by rule or statute but by the control 

necessarily vested in courts to manage their own affairs so as to achieve the orderly and 

expeditious disposition of cases”); United States v. Nicholson, 983 F.2d 983, 988 (10th 

Cir. 1993) (“District courts generally are afforded great discretion regarding trial 

procedure applications (including control of the docket and parties), and their decisions 

are reviewed only for abuse of discretion.”). “Certainly a district court has reasonable 

discretion in appropriate cases to manage its docket by granting particular defendants 

separate trials or disallowing cumulative testimony on a particular charge.” Zabawa, 39 

F.3d at 284. But such restrictions may be imposed only when they do not foreclose the 

government from fairly presenting its case. 

In this instance, Count 5 alleges eighteen incidents in violation of 18 U.S.C. § 841. 

“To convict a doctor for violating § 841, the government must prove: (1) that the 

defendant distributed or dispensed a controlled substance; (2) that the defendant acted 

knowingly and intentionally; and (3) that the defendant’s actions were not for legitimate 

medical purposes in the usual course of his professional medical practice or were beyond 

the bounds of medical practice.” United States v. Hurwitz, 459 F.3d 463, 475 (4th Cir. 

2006) (quotations omitted); see also United States v. Nelson, 383 F.3d 1227, 1231-32 

(10th Cir. 2004) (“A practitioner has unlawfully distributed a controlled substance if she 

Appellate Case: 09-3028 Document: 01018362828 Date Filed: 02/08/2010 Page: 11 
- 12 - 

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

legitimate medical purpose.”). The government maintains the evidence of the charged 

conduct is necessary to establish the Schneiders’ knowledge and intent to dispense the 

drugs for other than legitimate medical purposes. The government intends to prove the 

Schneiders were aware of the patients’ overdose deaths but did nothing to change their 

practices. Thus, it argues, evidence of the charged conduct in Count 5 is necessary. 

Judicial deference to the decisions of these executive officers rests in part 

on an assessment of the relative competence of prosecutors and courts. 

Such factors as the strength of the case, the prosecution’s general 

deterrence value, the Government’s enforcement priorities, and the case’s 

relationship to the Government’s overall enforcement plan are not readily 

susceptible to the kind of analysis the courts are competent to undertake. It 

also stems from a concern not to unnecessarily impair the performance of a 

core executive constitutional function. 

United States v. Armstrong, 517 U.S. 456, 465 (1996) (quotations and citations omitted). 

Because it is unknown at this point how much of this evidence is needed to establish the 

necessary elements in Count 5 or to negate any explanation of innocent mistake, the 

court’s premature conclusions impermissibly attempted to trim the government’s case. 

The district court erred in its wholesale exclusion of all evidence relating to 

seventeen of the eighteen allegations in Count 5.6

 It is the government’s decision, subject 

to constitutional protections, whether to charge these allegations in a single count rather 

than individually. A trial court’s case management may not interfere with the 

government’s ability to prosecute criminal activity any more than it can intrude upon a 

 6

 Significantly, the trial court merely picked the first name listed rather than 

inquiring whether this particular patient was the government’s strongest representative of 

the allegations in Count 5. 

Appellate Case: 09-3028 Document: 01018362828 Date Filed: 02/08/2010 Page: 12 
- 13 - 

defendant’s opportunity to defend. 

B. Alternative Arguments 

The Schneiders claim the evidence “that Dr. Schneider was responsible for the 

deaths of over twenty patients creates a substantial risk that the passion of the jury will be 

so inflamed that the jury will be unable to engage in a rational analysis of the evidence.” 

(Appellee’s Br. at 27.) We agree presenting evidence of a doctor’s responsibility for the 

deaths of over twenty patients may have a profound effect on the jury, but that is the 

precise conduct for which the Schneiders are charged. This is not evidence of collateral 

activity or prior bad acts; the government intends to prove the deaths alleged in Count 5 

were the result of an ongoing scheme to distribute drugs for purposes other than 

legitimate medical treatment. While the evidence is certainly prejudicial, it is not 

unfairly prejudicial. 

The Schneiders also claim we can affirm the district court on two other grounds. 

See S. Utah Wilderness Alliance v. Bureau Land Mgmt., 425 F.3d 735, 745 n.2 (10th Cir. 

2005) (“An appellee may defend the judgment won below on any ground supported by 

the record.” (quotations and alterations omitted)). First, they argue the evidence relating 

to the treatment and deaths of the seventeen individuals is not relevant under Federal 

Rule of Evidence 104(b) 7 because its relevance is conditioned on facts which cannot be 

 7

 Rule 104(b) provides: 

When the relevancy of evidence depends upon the fulfillment of a condition 

of fact, the court shall admit it upon, or subject to, the introduction of 

evidence sufficient to support a finding of the fulfillment of the condition. 

Appellate Case: 09-3028 Document: 01018362828 Date Filed: 02/08/2010 Page: 13 
- 14 - 

proved. Second, they claim the indictment is infirm because the seventeen additional 

deaths alleged in Count 5 are duplicitous. 

“We may affirm on alternative grounds only when those grounds are dispositive, 

indisputable, and appear clearly in the record.” Roberts v. Barrerra, 484 F.3d 1236, 1244 

(10th Cir. 2007) (unable to rule on an alternative ground because the record unclear) 

(quotations omitted). We reject the Schneiders’ argument under Rule 104(b) because, 

even assuming the Schneiders’ reasoning is correct, the record before us is insufficient to 

indisputably determine the issue. Accordingly, we decline to affirm on this alternative 

ground. 

The Schneiders claim the court’s ruling may also be affirmed because Count 5 is 

duplicitous by charging the Schneiders with eighteen distinct violations of the statute in 

one count.8

 Multiple charges in one count may present a danger that the jury may convict 

a defendant although not reaching a unanimous agreement on precisely which charge is 

the basis for the conviction. Jaynes, 75 F.3d at 1503 n.7. As discussed above, however, 

we have permitted one count in an indictment to contain multiple charges that may 

otherwise be separate counts if the alleged violations “were all part of a single scheme.” 

Id. at 1502. The Schneiders do not argue the separate deaths could not be part of one 

scheme and we are not persuaded by the Schneiders’ argument that, due to the 

complexity of this case, a specific unanimity instruction cannot be relied upon to cure 

 8

 Duplicity is defined as the joinder of two or more distinct and separate criminal 

offenses in the same count of an indictment. United States v. Haber, 251 F.3d 881, 888 

(10th Cir. 2001). 

Appellate Case: 09-3028 Document: 01018362828 Date Filed: 02/08/2010 Page: 14 
- 15 - 

potential jury confusion. See id. at 1503 n. 7; see also United States v. Sasser, 971 F.2d 

470, 478 (10th Cir. 1992).9

C. Time Limit Set By Court

The government asserts the district court unreasonably restricted the time allowed 

for it to present its case at trial. They claim that, as a practical matter, the district court 

limited the government to approximately five days to present its evidence which 

effectively excludes the government’s presentation of evidence and is therefore 

reviewable under 18 U.S.C. § 3731. See United States v. McVeigh, 106 F.3d 325, 330 n.3 

(10th Cir. 1997) (“§ 3731 can apply to rulings which, though nominally outside the scope 

of the statute, have the practical effect of orders clearly covered. Specifically, orders 

directing the government to take action and specifically providing for the exclusion of 

related evidence in the event of noncompliance have been deemed conditional 

suppression orders and thereby brought within a liberal construction of the statute.” 

(citations and quotations omitted)). “Trial courts are permitted to impose reasonable time 

limits on the presentation of evidence to prevent undue delay, waste of time, or needless 

 9

 The Schneiders did not raise this issue to the district court. Federal Rule of 

Criminal Procedure 12(b)(3)(B) requires “a motion alleging a defect in the indictment or 

information” to be made before trial. Rule 12(c) authorizes the court to “set a deadline 

for the parties to make pretrial motions and may also schedule a motion hearing.” In this 

case, the court set the deadline for May 16, 2008, but the Schneiders did not challenge the 

indictment as duplicitous. Under Rule 12(e), “[a] party waives any Rule 12(b)(3) 

defense, objection, or request not raised by the deadline the court sets under Rule 12(c) or 

by any extension the court provides.” However, “[f]or good cause, the court may grant 

relief from the waiver.” Id.; see also Haber, 251 F.3d at 889 (“In some circumstances, a 

defendant can raise a late challenge to a duplicitous indictment if cause is shown that 

might justify the granting of relief from the waiver.” (quotations omitted)). We discern 

no reason to grant the Schneiders relief from their waiver. 

Appellate Case: 09-3028 Document: 01018362828 Date Filed: 02/08/2010 Page: 15 
- 16 - 

presentation of cumulative evidence.” Life Plus Int’l v. Brown, 317 F.3d 799, 807 (8th 

Cir. 2003) (quotations omitted). “[T]he district court constantly produces legal product 

and manages trials and, therefore, is somewhat of an expert in the time that is required to 

conduct litigation.” Case v. Unified Schl. Dist. No. 233, Johnson County, Kan., 157 F.3d 

1243, 1256 (10th Cir. 1998) (addressing court’s expertise to determine appropriate 

attorney fees). Nonetheless: 

[I]t may be an abuse of the trial court’s discretion to exclude probative, 

non-cumulative evidence simply because its introduction will cause delay, 

and any time limits formulated in advance of trial must be fashioned with 

this in mind. Such limits should be sufficiently flexible to accommodate 

adjustment if it appears during trial that the court’s initial assessment was 

too restrictive. 

Life Plus, 317 F.3d at 807 (quotations omitted). “When there is an objection to the 

exclusion of evidence as a result of time limits, the record must show a proper basis or 

explanation by the district court for the exclusion.” Harris v. Chand, 506 F.3d 1135, 

1141 (8th Cir. 2007). 

The parties estimated the case would take eight weeks. Without consulting the 

parties, and over their objections, the district court allotted each side ten days, including 

cross-examination. It did not explain why it imposed the limitation and did not address 

how it would consider time spent on motions, bench conferences and other matters. 

Although the court implied the time limit was inflexible and would not be changed 

regardless of what evidence may be properly admitted, its position was taken prior to our 

ruling on the first issue. The district court is aware of the government’s need to present 

its case -- as is its right – as well as the potential for serious constitutional violations if 

Appellate Case: 09-3028 Document: 01018362828 Date Filed: 02/08/2010 Page: 16 
- 17 - 

unreasonable limitations are imposed on the defendant’s opportunity to defend against 

the charges. See United States v. Janati, 374 F.3d 263, 273-75 (4th Cir. 2004) 

(addressing “the appropriate balance between the district court’s right to manage trials 

and the government’s right to prove its case”); see also United States v. Rodriguez-Felix, 

450 F.3d 1117, 1121 (10th Cir. 2006) (“The right to present a defense is anchored in the 

Fifth and Fourteenth Amendment right to due process and the Sixth Amendment right to 

compulsory process.” (quotations omitted)). Because our resolution of the first issue 

alters the scope of the evidence to be presented at trial, we decline to address the second 

issue. 

D. Conclusion

The district court was without authority, in effect, to dismiss the majority of the 

charged conduct in Count 5 and abused its discretion. Therefore, the district court’s 

pretrial orders are VACATED and the case REMANDED. We are confident that on 

remand the court will proceed in a manner consistent with this order and accord a fair 

opportunity for the government to present the entirety of its case and provide the 

Schneiders adequate time to present their defense. 

III. CROSS-APPEAL 

The Schneiders cross-appeal from the district court’s denial of their motion to 

exclude the government’s expert testimony and its denial of a Daubert10 hearing 

requiring the government to establish the reliability of its evidence. The government 

 10 Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). 

Appellate Case: 09-3028 Document: 01018362828 Date Filed: 02/08/2010 Page: 17 
- 18 - 

filed a motion to dismiss the cross-appeal for lack of jurisdiction. 

The Schneiders do not argue the district court’s order is a final order. Rather, they 

contend we may exercise jurisdiction pursuant to pendant jurisdiction or the collateral 

order doctrine. 

The court’s evidentiary rulings are not appealable collateral orders. The 

application of the collateral order doctrine is subject to a three-part test derived from the 

Supreme Court’s decision in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 

(1949). See Tarrant Regional Water Dist. v. Sevenoaks, 545 F.3d 906, 914 n.5 (10th Cir. 

2008). “To establish jurisdiction under the collateral order doctrine, defendants must 

establish that the district court’s order (1) conclusively determined the disputed question, 

(2) resolved an important issue completely separate from the merits of the case, and (3) is 

effectively unreviewable on appeal from a final judgment.” Id. (quoting Crystal Clear 

Commc’ns, Inc. v. Southwestern Bell Tel. Co., 415 F.3d 1171, 1178 (10th Cir. 2005)). 

While we need only find the absence of one of these elements to eliminate jurisdiction, 

the Schneiders’ cross-appeal fails several turns. The admissibility of expert testimony is 

not conclusively determined because the district court may modify its ruling at trial. 

Even if the issue is separate from the merits of the case a court’s evidentiary rulings are 

clearly reviewable on appeal. “[T]he decisive consideration is whether delaying review 

until the entry of final judgment would imperil a substantial public interest or some 

particular value of a high order.” Mohawk Inc., Inc. v. Carpenter, 558 U.S. ---, No. 08-

678, 2009 WL 4573276, *5 (Dec. 8, 2009) (quotations omitted). The Schneiders’ 

Appellate Case: 09-3028 Document: 01018362828 Date Filed: 02/08/2010 Page: 18 
- 19 - 

argument that the issues are unreviewable because a more exacting standard will apply on 

appeal is unpersuasive and unsupported by authority. “As long as the class of claims, 

taken as a whole, can be adequately vindicated by other means, the chance . . . a 

particular injustice [might be] averted does not provide a basis for jurisdiction under § 

1291.” Id. (quotations omitted). 

We also reject the Schneiders’ argument that this Court should take discretionary 

pendant jurisdiction. “The Supreme Court has stated that pendant claims are appealable 

‘if, and only if, they too fall within Cohen’s collateral-order exception to the finaljudgment rule.’” Tarrant, 543 F.3d at 914 (quoting Abney v. United States, 431 U.S. 651, 

663 (1977)).11 Thus, pendant jurisdiction is equally unavailable. Because we lack 

jurisdiction over the Schneiders’ cross-appeal, it is DISMISSED. 

 11 It is doubtful whether pendant jurisdiction even applies to a § 3731 crossappeal. 

In Abney, 431 U.S. at 662, the Supreme Court held that a defendant could 

immediately appeal, under the collateral order doctrine, the denial of a 

motion to dismiss raising a Double Jeopardy defense . . . . The Court 

cautioned that its holding was based on the special considerations 

permeating Double Jeopardy claims. Other claims presented to, and 

rejected by, the district court in passing on the accused’s motion to dismiss 

. . . . are appealable if, and only if, they too fall within the collateral-order 

exception to the final-judgment rule. Cases interpreting Abney appear to 

categorically foreclose pendent appellate jurisdiction in criminal cases. 

United States v. Eberhart, 388 F.3d 1043, 1051-52 (7th Cir. 2004) (listing cases), 

overruled on other grounds by Eberhart v. United States, 546 U.S. 12 (2005); see also 

United States v. DiBernardo, 775 F.2d 1470, 1474 n.8 (11th Cir. 1985) (“It is also clear 

that this court is without pendent jurisdiction over appellees’ cross-appeal.”) (citing 

United States v. MacDonald, 435 U.S. 850, 857 n. 6 (1978)). 

Appellate Case: 09-3028 Document: 01018362828 Date Filed: 02/08/2010 Page: 19