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

                             FOR THE TENTH CIRCUIT                         November 4, 2016
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                    Nos. 15-3247 & 15-3248
                                                 (D.C. Nos. 6:14-CV-01175-MLB &
LINDA K. SCHNEIDER, a/k/a Linda K.                     6:14-CV-01176-MLB)
Atterbury; STEPHEN J. SCHNEIDER,                              (D. Kan.)

      Defendants - Appellants.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before MATHESON, McKAY, and O’BRIEN, Circuit Judges.
                 _________________________________

      Defendants Linda K. and Stephen J. Schneider, a nurse and doctor who ran a

pain management clinic in Kansas, were convicted in 2010 of numerous counts of

unlawfully dispensing a controlled substance resulting in serious bodily injury or

death, health care fraud resulting in serious bodily injury or death, health care fraud,

money laundering, and conspiracy. This court affirmed their convictions and

resultant sentences on direct appeal. See United States v. Schneider, 

      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
(10th Cir. 2013). Defendants subsequently filed identical motions for relief under

28 U.S.C. § 2255, which the district court granted in part and denied in part. They

now appeal from adverse aspects of the district court’s judgment. We affirm for

reasons explained below.

                                  I. BACKGROUND

      The district court recounted the operation of defendants’ pain management

clinic as follows:

             Defendant Stephen Schneider (“Stephen”) was a doctor of
      osteopathic medicine and his wife, defendant Linda Schneider (“Linda”),
      was a licensed practical nurse (“LPN”). In October 2002, they opened
      Schneider Medical Clinic (“SMC”) in Haysville, Kansas, where they
      provided pain management treatment including the prescription of
      controlled substances. The prescriptions were usually written in
      combinations of dangerous and addictive drugs from Schedules II, III and
      IV.
               SMC was a large facility and accommodated a large number of
      patients. It was open seven days a week, for long hours. Stephen was the
      only full-time doctor on staff. At times, SMC had a part-time doctor on
      staff but SMC usually utilized physician’s assistants (PA) to see patients.
      Stephen provided the PAs with full, pre-signed prescription pads. The PAs
      did not have specialized training in pain management and they were given
      little discretion to alter Stephen’s prescriptions.
      ....

             The evidence [at trial], viewed in the light most favorable to the
      government, overwhelmingly demonstrated that the Schneiders operated
      SMC as a revenue-generating facility, with little or no concern for the
      welfare of its “patients.” Simply stated, SMC was operated as a “pill mill.”
      The patient records showed that inadequate or no medical histories were
      taken, there was a lack of treatment plans, no visible effort to treat the cause
      of the patients’ pain, failure to monitor patients’ progress, a lack of
      documentation, escalating dosages of prescriptions and prescription
      practices which were likely to cause dependence. The patient records also
      contained numerous “red flags” which would support a finding that patients
      were addicted to the prescriptions, i.e., early refills, failed urine tests,
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      claims of lost prescriptions, and reports of abuse. There was evidence that
      some patients were selling SMC-prescribed drugs in SMC’s parking lot.
      ....

             From February 2002 to February 2008, sixty-eight SMC patients
      died of drug overdoses. . . . During the same time period, over 100 SMC
      patients were admitted to local hospitals for overdoses. Defendants
      received repeated calls from law enforcement, concerned family members
      about patients’ drug addictions, concerned pharmacists, and calls from
      Emergency Room physicians about SMC’s prescription practices. SMC’s
      method of operation continued without change.
R. Vol. 1 at 902-06 (footnotes omitted). Based on the deaths of a number of SMC

patients, defendants were found guilty on four counts of unlawfully dispensing

prescription drugs resulting in death or serious bodily injury and three counts of

health care fraud resulting in death or serious bodily injury. The other offenses of

which they were convicted are not at issue here.

      After the conclusion of defendants’ direct appeal, the Supreme Court issued

Burrage v. United States, 

(2014), addressing illegal distribution of a

schedule I or II drug “resulting in death” in violation of 21 U.S.C. § 841(b)(1)(C).

The Court held that “at least where use of the drug distributed by the defendant is not

an independently sufficient cause of the victim’s death or serious bodily injury, a

defendant cannot be liable under . . . § 841(b)(1)(C) unless such use is a but-for cause

of the death or injury.” 

see also 

(noting § 841(b)(1)(C) “has two

principal elements: (i) knowing and intentional distribution of [the drug] . . . and

(ii) death caused by (‘resulting from’) the use of that drug” (emphasis added)).

Defendants, who had requested and been denied a “but for” causation instruction at


                                           3
trial, brought the instant § 2255 proceeding challenging, inter alia, their “resulting in

death or serious bodily injury” convictions based on Burrage.

      The district court held the challenged convictions were undermined by

Burrage and vacated all but one. As to defendants’ conviction for illegal distribution

of fentanyl to “Robin G,” who died, the district court held the failure to instruct on

but-for causation was harmless error. Noting that (1) the death certificate cited the

toxic effects of fentanyl as the cause of death; (2) government experts testified that

the cause of death was a fentanyl overdose; and (3) defendants’ expert, who

discounted fentanyl as the operative cause, admitted he lacked sufficient information

to opine about the cause of death, the district court concluded: “it is clear beyond a

reasonable doubt that the jury would have found defendants’ illegal dispensing of

fentanyl was the ‘but-for’ cause of Robin G’s death,” R. Vol. 1 at 928.

      The government moved for reconsideration with respect to the vacatur of

defendants’ other “resulting in death or serious bodily injury” convictions. It argued

that the district court should have substituted convictions on the lesser included

offenses (LIOs) of unlawful drug dispensing and health care fraud—for which the

jury had found all of the necessary elements1—and resentenced defendants. The

district court agreed and proceeded accordingly.



      1
         The instructions and verdict forms required the jury to find defendants guilty
of unlawful drug dispensing and health care fraud before considering the additional
“resulting in” element for the associated enhanced crimes. See R. Vol. 1 at 908-09;
Supp. R. at 117-21, 124-28, 166-73, 177, 182. Defendants concede the former are
LIOs of the latter. Aplt. Opening Br. at 20.
                                            4
      Defendants moved for a certificate of appealability (COA) on two issues:

(1) whether the district court erred in denying relief as to count 4 by holding the

Burrage error harmless, given the conflicting testimony of the government and

defense experts on the cause of death; and (2) whether the LIOs substituted for the

vacated “resulting in death” convictions violated the Double Jeopardy Clause of the

Fifth Amendment. See R. Vol. 1 at 986-89. The district court granted the motion,

see 

and defendants timely appealed.

                     II. ANALYSIS OF ISSUES ON APPEAL

A. Decision to Uphold “Resulting in Death or Serious Bodily Injury” Conviction
(Count 4) on the Basis of Harmless Error

      1. Applicable standard for harmless error

      Defendants contend the applicable standard for determining harmless error

when, as here, the jury was not instructed on an element of the offense is whether the

“reviewing court concludes beyond a reasonable doubt that the omitted element was

uncontested and supported by overwhelming evidence, such that the jury verdict

would have been the same absent the error.” Neder v. United States, 

, 17

(1999). In reviewing such instructional error for harmlessness on direct appeal from

a conviction, we have sometimes invoked this standard verbatim. See, e.g., United

States v. Sierra-Ledesma, 

, 1224 (10th Cir. 2011); United States v.

Serawop, 

, 669 (10th Cir. 2005). We have on other occasions invoked

another passage from Neder that does not refer to whether the omitted element was

uncontested or supported by overwhelming evidence, but simply asks more generally


                                           5
“whether it appears beyond a reasonable doubt that the error complained of did not

contribute to the verdict 

(internal quotation marks omitted).

See, e.g., United States v. Alexander, 

, 1214 (10th Cir. 2016); United

States v. Luke-Sanchez, 

, 705 (10th Cir. 2007). Defendants rely

explicitly on the former version of the standard, arguing the Burrage error in this

case cannot be found harmless for two distinct reasons, i.e., because causation was

contested and because the government’s case on causation was not overwhelming.

      We need not parse out the proper formulation of the harmless-error standard

for direct review under Neder,2 because we deal here with the issue of harmless-error

on collateral review. This circuit has made it clear that in § 2255 proceedings, as in

habeas proceedings, harmless-error review is not governed by standards applicable

on direct appeal but by the standard set out in Brecht v. Abrahamson, 

,

637 (1993): “whether the error had substantial and injurious effect or influence in

determining the jury’s verdict.”3 See United States v. Dago, 

, 1245-46

(10th Cir. 2006); see also United States v. Dominguez Benitez, 

, 81 n.7

(2004) (“When the Government has the burden of showing that constitutional trial

error is harmless because it comes up on collateral review, the heightened interest in


      2
         The case law reflects some controversy on that point. For an extensive
discussion, see the concurrences in United States v. Pizarro, 

(1st Cir. 2014).
      3
        Defendants argue alternatively that if we do apply the Brecht standard, we
should modify it to incorporate in some fashion aspects of the Neder standard. There
is no basis in our case law to apply different versions of the Brecht standard
depending on the error assessed for harmlessness.
                                           6
finality generally calls for the Government to meet the more lenient [Brecht]

standard.”). We therefore use the Brecht standard in assessing the harmless-error

issue here.4 While this is a more lenient standard, the burden of persuasion remains

on the government and, thus, “when a court is ‘in virtual equipoise as to the

harmlessness of the error’ . . . , the court should ‘treat the error . . . as if it affected

the verdict.’” Fry v. Pliler, 

, 121 n.3 (2007) (quoting O’Neal v.

McAninch, 

, 435 (1995)).

       2. Government’s waiver argument

       The government argues we may affirm the district court’s harmless-error

determination without even considering the trial record. The indictment alleged, and

the jury separately found, that the fentanyl dispensed to Robin G. resulted in her

death and resulted in her serious bodily injury—either of which is an independently

sufficient basis for conviction. In arguing against harmless error in the district court

and in their opening brief on appeal, defendants focused solely on the strength of the

evidence relating to cause of death. The government contends they thereby waived

the issue of harmless error with respect to causation of serious bodily injury and we


       4
         The district court invoked the Neder standard in finding the Burrage error
harmless with respect to Robin G. That inappropriate use of the Neder standard does
not bind this court. We may affirm the district court’s ruling on the alternative basis
that the less stringent Brecht standard is satisfied. See United States v. Watson,

, 1235 (10th Cir.) (noting this court’s discretion to affirm on any
ground adequately supported by the record), cert. denied, 

(2014).
While the legal standard we apply is different, the parties fully briefed (both here and
in the district court) the issue of harmless error, which turns on an established
evidentiary record. See 

n.12 (discussing considerations underlying the
exercise of our discretion to affirm on alternative grounds).
                                               7
may summarily affirm their convictions on that alternative basis without assessing

the evidence on causation at all. We decline to forgo all harmless-error review of the

Burrage error on this basis. The district court itself initially narrowed the focus of

the harmless-error question to causation of Robin G.’s death, and never separately

addressed causation of serious bodily injury to Robin G. as an alternative basis for

finding harmless error (although the government eventually did make that argument

in response to a motion for reconsideration filed by defendants). In any event,

because we conclude that the evidence regarding cause of death is sufficient to show

that the Burrage error was harmless under the Brecht standard, we prefer to affirm on

a basis anchored in the record evidence rather than relying on the government’s

waiver theory.

      3. Assessment of trial evidence for harmless error

      Defendants contend that the failure to instruct the jury on but-for causation

was not harmless. Although they invoke the Neder standard inappropriately applied

by the district court, their evidentiary argument is readily assessed under the Brecht

standard.

      The district court held that the government presented an overwhelming case

that the fentanyl Robin G. obtained through defendants was the but-for cause of her

death. In particular, the district court noted that the government presented two expert

witnesses—the medical examiner who performed the autopsy on Robin G. and the

toxicologist who determined the exorbitant postmortem concentration of fentanyl in

her blood—who opined without qualification that the fentanyl was the cause of

                                            8
Robin G.’s death. On appeal, defendants point only to the testimony of their expert,

Dr. Karch, who contested the medical examiner’s and toxicologist’s opinions by

invoking the possibility that drug tolerance could have protected Robin G. from the

effects of overdose and the possibility that postmortem redistribution of fentanyl

could have affected the levels found by the toxicologist. Although he could offer no

definitive opinion on an alternative cause of death, Dr. Karch “discount[ed] the

Fentanyl entirely,” R. Vol. 3 at 5530. The jury plainly rejected Dr. Karch’s opinion

in favor of those of the medical examiner and toxicologist—if the fentanyl were

discounted entirely, a verdict of acquittal on the resulting-in-death charge would

obviously have been required. Given the accepted opinions of the medical examiner

and toxicologist and the rejected opinion of defendant’s expert, we conclude that the

district court’s failure to instruct on but-for cause did not have a substantial and

injurious effect on the jury’s verdict.

B. Double Jeopardy Challenge to LIO Convictions

       Defendants contend their substituted convictions for the LIOs of drug and

health care fraud violated the Double Jeopardy Clause, because the unqualified

vacatur of their original convictions by the district court constituted an acquittal

barring subsequent convictions for the same conduct. They do not cite a single

authority for their overarching premise that once a court vacates a jury conviction for

legal error, double jeopardy protections bar subsequent review and correction of the

vacatur order. And, indeed, authority is squarely to the contrary. The Supreme Court

has repeatedly held that “[w]hen a jury returns a verdict of guilty and a trial judge (or

                                            9
an appellate court) sets aside that verdict and enters a judgment of acquittal, the

Double Jeopardy Clause does not preclude a prosecution appeal to reinstate the jury

verdict of guilty.” Smith v. Massachusetts, 

, 467 (2005). The Court

explained the reasoning behind this principle in United States v. Wilson, 

(1975):

      [P]olicies underlying the Double Jeopardy Clause militate against
      permitting the Government to appeal after a verdict of acquittal. Granting
      the Government such broad appeal rights would allow the prosecutor to
      seek to persuade a second trier of fact of the defendant’s guilt after having
      failed with the first; it would permit him to re-examine the weaknesses in
      his first presentation in order to strengthen the second; and it would
      disserve the defendant’s legitimate interest in the finality of a verdict of
      acquittal. These interests, however, do not apply in the case of a
      postverdict ruling of law by a trial judge. Correction of an error of law at
      that stage would not grant the prosecutor a new trial or subject the
      defendant to the harassment traditionally associated with multiple
      prosecutions.

(emphasis added and footnote omitted). Further, the Supreme Court has

noted its approval of the specific practice of “direct[ing] the entry of judgment for a

lesser included offense when a conviction for a greater offense is reversed on

grounds that affect only the greater offense.” Rutledge v. United States, 

, 306 (1996); see, e.g., United States v. Smith, 

, 383 (10th Cir. 1993)

(directing district court to impose conviction on LIO after vacating conviction on

greater offense for insufficient evidence of element not required for LIO); Ragland v.

United States, 

, 1214 (8th Cir. 2015) (vacating conviction for drug

distribution resulting in death and remanding “with instructions for the district court

to enter judgment on the lesser include offense of [drug] distribution”).


                                           10
      Defendants note the LIO convictions here were imposed by the district court

on collateral review, rather than at the direction of an appellate court on remand from

a direct appeal, but that is “a distinction without a difference.” United States v.

Silvers, 

, 99, 101 (4th Cir. 1996) (holding “district court’s action [in a

§ 2255 proceeding] of reinstating [defendant’s] previously-vacated [lesser included]

conspiracy conviction, after vacating his CCE conviction on grounds that did not

affect the conspiracy conviction, was appropriate and did not violate the Double

Jeopardy Clause”). The material point is that correcting a vacatur order by instating

LIO convictions supported by the jury verdict “would not grant the prosecutor a new

trial or subject the defendant to the harassment traditionally associated with multiple

prosecutions,” 

—and that is equally true whether the district

court does so at the direction of an appellate court on remand from a direct appeal or

on its own reconsideration of a vacatur order on collateral review.5 We note Silvers



      5
        The Sixth Circuit succinctly made much the same point in a related context
(where the district court had granted a post-verdict motion for acquittal but changed
its mind on reconsideration and reinstated the vacated conviction):

             There is no question that a postverdict acquittal is appealable by the
      government and that restoration of the guilty verdict is proper if the
      government prevails. Thus, there is no question that we could reverse and
      order that the conviction be reinstated. It follows a fortiori that it would
      not violate double jeopardy principles for the district court to make the
      same determination after a timely motion for reconsideration. It would be
      odd indeed to say that the trial court was precluded, on a motion for
      reconsideration, from doing what the appellate court clearly has the
      authority to do.
United States v. Maddox, 

, 1232-33 (6th Cir. 1991) (citation omitted).
                                           11
was one of the cases specifically cited with approval by the Supreme Court in

Rutledge. 

.

         In sum, we reject defendants’ contention that “[a]s soon as the district court

reversed and vacated the [resulting in death or serious bodily injury] convictions,

Double Jeopardy clearly prohibited the government from taking ‘another bite at the

apple,’” Aplt. Opening Br. at 25. We note defendants also argue in this vein that, by

failing initially to oppose vacatur of the convictions on the “resulting in” counts

without substitution of the LIO convictions, the government waived the matter and

the district court’s grant of its motion for reconsideration on this basis was improper.

But defendants did not seek and obtain a COA on this waiver argument—which,

indeed, they never raised in opposition to the government’s motion in the district

court.

C. Cumulative Error

         Defendants advance a novel cumulative-error claim: “The cumulative effect

of the district court’s failure to provide the Burrage instruction to the jury on all

seven counts unlawfully poisoned the jury’s verdict on any one of those counts,

including count 4 [involving Robin G.].” Aplt. Opening Br. at 17; see also 

(explaining that “what is at issue is not multiple kinds of errors [standard

cumulative error], but repetition of the same error multiple times,” i.e., whether “the

prejudicial effect of not receiving [a Burrage] instruction across all [‘resulting in’]

counts impermissibly allowed the passions of the jury to influence their decision on

any one count”). This claim was not asserted in defendants’ § 2255 motions,

                                             12
raised in the motion for COA, or included in the COA order. We therefore do not

consider it.

       The judgment of the district court is affirmed.


                                            Entered for the Court


                                            Monroe G. McKay
                                            Circuit Judge




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