United States District Court, D. Colorado
ORDER DIRECTING SUPPLEMENTAL BRIEFING
CHRISTINE M. ARGUELLO, District Judge.
Upon further consideration, this Court recognizes that the length of time needed to conduct a trial in this case will depend considerably on how this Court rules on certain evidentiary matters discussed tangentially in arguments made by all parties in the pending motions. This order is designed to provide the Court with briefing that directly addresses these matters.
In particular, this Court requires more information about various aspects of the Government's argument that it is permitted to offer evidence of prior bad acts not directly referenced or charged in the indictment: principally, evidence related to so-called "non-charged patients" to whom Defendants prescribed controlled substances for allegedly no legitimate medical purpose.
The Government has argued that evidence related to the non-charged patients is admissible because it is "intrinsic" to the crimes charged in the indictment-and in particular to the charges related to Health Care Fraud (HCF). See, e.g., (Doc. # 294 at 1-2.) Defendants disagree and have generally argued that this evidence is inadmissible under Federal Rule of Evidence 404(b).
The Tenth Circuit has recognized that some evidence of uncharged bad acts is not subject to Rule 404(b) because the acts at issue are "intrinsic" to the charged crimes. At the same time, numerous federal courts have noted that it is difficult to define what constitutes evidence "intrinsic" to the charged crime and that by relying on the vagaries of this Rule 404(b) exception, a court can improperly allow inadmissible evidence to be considered at trial. Compare, e.g., United States v. Irving, 665 F.3d 1184, 1212 (10th Cir. 2011) (finding evidence of a prior drug conviction intrinsic to a separately charged crime), with United States v. Bowie, 232 F.3d 923, 927 (D.C. Cir. 2000) (noting that "[b]ifurcating the universe into intrinsic and extrinsic evidence has proven difficult in practice"); see also Irving, 665 F.3d at 1215 (Hartz, J. concurring) (collecting authorities that hold that the intrinsic/extrinsic distinction has "become overused, vague, and quite unhelpful" and "is vague, overbroad, and prone to abuse").
The Court needs greater clarity on these difficult evidentiary questions and how they apply to the facts of this case. The Court therefore directs the parties to brief the following questions:
1) What is the universe of prior bad acts evidence the Government potentially seeks to introduce at trial?
The Government must identify by category and patient all uncharged bad act evidence that it might offer at trial. This categorization should include any evidence that is to be discussed "substantively" as the Government has used that term in briefing before this Court. See, e.g., (Doc. # 284). The Government should also explain what evidence it anticipates discussing in a non-substantive manner at trial. The purpose of this requirement is not to force the Government to reveal its theory of the case but to apprise this Court and Defendants of the uncharged conduct it seeks to admit into evidence.
2) Why is this evidence admissible?
For all the categories of evidence referenced in Question (1) above, the Government should explain the relevance of the evidence and the theory pursuant to which this evidence is admissible, notwithstanding Rule 404(b). The Court presumes that, based on prior briefing, the Government's sole basis for admitting this evidence is that it falls within the intrinsic evidence exception to Rule 404(b). This presumption informs the questions that follow.
3) Is there Tenth Circuit authority for the Government's theory as to why the evidence is admissible?
As the Government has noted, the Tenth Circuit did apply the intrinsic evidence exception to Rule 404(b) in Irving, cited above. Irving, however, appears to be potentially distinguishable from the facts of this case. Further, the Government has cited no Tenth Circuit authority that presents facts and arguments similar to those seemingly at issue here: i.e., a case where the Government argues that evidence of uncharged conduct is intrinsic to a multi-year "scheme" to defraud, in which the conduct at issue is neither referenced in the indictment nor the subject of a prior conviction. In its briefing, the Government should: (i) address why Irving controls given these distinctions, and (ii) identify any other cases that are more on directly point.
4) Are the concerns identified by other courts about the definition of intrinsic evidence inapplicable under the law of the Tenth Circuit? Are they inapplicable in this case?
The Court is particularly interested in the parties' positions on the problems with the intrinsic evidence rule identified by Judge Randolph in Bowie, cited above, and those cases from other circuits that rely on ...