UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

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

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before MATHESON , McKAY , and O’BRIEN , Circuit Judges.

________________ _________________ Defendants Linda K. and St ephen 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 , 704 F.3d 1287

* After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not ma terially 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 a nd 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### November 4, 2016
Elisabeth A. Shumaker Clerk of Court2 (10th Cir. 2013). De fendants subsequently filed id entical motions for relief under 28 U.S.C. § 2255, which the dist rict court granted in part and denied in part. They now appeal from adverse aspects of the dist rict court’s judgment. We affirm for reasons explained below. I. BACKGROUND The district court recounted the opera tion 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 treatme nt including the prescription of controlled substances. The prescr iptions were usually written in combinations of danger ous and addictive drugs from Schedules II, III and IV. SMC was a large facility and accommodated a large number of patients. It was open seve n days a week, for long hours. Stephen was the only full-time doctor on staff. At tim es, 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, pr e-signed prescription pads. The PAs did not have specialized training in pain management and they were given little discretion to alter St ephen’s prescriptions.

. . . . The evidence [at trial], viewed in the light most favorable to the government, overwhelmingly demonstrat ed that the Schneiders operated SMC as a revenue-generating facility , with little or no concern for the welfare of its “patients.” Simply stat ed, 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 plan s, no visible effort to treat the cause of the patients’ pain, failure to monitor patients’ progress, a lack of documentation, escalati ng dosages of prescrip tions and prescription practices which were likely to cause de pendence. The patie nt records also contained numerous “red flags” whic h would support a finding that patients were addicted to the prescriptions, i. e., early refills, failed urine tests,3 claims of lost prescriptions, and reports of abuse. There was evidence that some patients were selling SMC-prescrib ed drugs in SMC’s parking lot.

. . . . From February 2002 to Februa ry 2008, sixty-eight SMC patients died of drug overdoses. . . . Du ring the same time pe riod, over 100 SMC patients were admitted to local ho spitals for overdoses. Defendants received repeated calls from law enfo rcement, concerned family members about patients’ drug addictions, conc erned pharmacists, and calls from Emergency Room physicians about SM C’s prescription practices. SMC’s method of operation conti nued 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 se rious bodily injury and three counts of health care fraud resulting in death or serious bodily inju ry. The other offenses of which they were convicted are not at issue here. After the conclusion of defendants’ di rect appeal, the S upreme Court issued Burrage v. United States , 134 S. Ct. 881 (2014), addres sing 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 vi ctim’s death or seri ous bodily injury, a defendant cannot be liable under . . . § 841(b )(1)(C) unless such us e is a but-for cause of the death or injury.” Id. at 892; see also id. at 887 (noting § 841(b)(1)(C) “has two principal elements: (i) knowing and intenti onal distribution of [t he drug] . . . and (ii) death caused by (‘resulting from’) the use of th at drug” (emphasis added)). Defendants, who had requested and been denied a “but for” causation instruction at4 trial, brought the instant § 2255 proceeding challenging, inter alia , their “resulting in death or serious bodily in jury” convictions based on Burrage

. The district court held the challe nged convictions were undermined by Burrage and vacated all but one. As to defenda nts’ conviction for illegal distribution of fentanyl to “Robin G,” who died, the dist rict court held the failure to instruct on but-for causation was harmless e rror. Noting that (1) the death certificate cited the toxic effects of fentanyl as the cause of death; (2) govern ment experts testified that the cause of death was a fentanyl over dose; and (3) defendants’ expert, who discounted fentanyl as the operative cause, admitted he lacked sufficient information to opine about the cause of death, the distri ct 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 Robi n G’s death,” R. Vol. 1 at 928. The government moved for reconsiderat ion with respect to the vacatur of defendants’ other “resulting in death or serious bodily inju ry” convictions. It argued that the district court s hould have substituted convic tions on the lesser included offenses (LIOs) of unlawful drug dispensi ng and health care fraud—for which the jury had found all of the necessary elements 1 —and resentenced defendants. The district court agreed and proceeded accordingly.

1 The instructions and verdict forms re quired the jury to find defendants guilty of unlawful drug dispensing and health care fraud before considering the additional “resulting in” element for the a ssociated 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 20.5 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 conflicti ng testimony of the government and defense experts on the cause of death; a nd (2) whether the LIOs substituted for the vacated “resulting in death” convictions violated the Doub le Jeopardy Clause of the Fifth Amendment. See R. Vol. 1 at 986-89. The dist rict court granted the motion,

see id. at 992-93, and defendant s timely appealed. II. ANALYSIS OF ISSUES ON APPEAL A. Decision to Uphold “Resulting in De ath or Serious Bodily Injury” Conviction (Count 4) on the Basis of Harmless Error 1. Applicable standard for harmless error Defendants contend the applicable sta ndard for determining harmless error when, as here, the jury was not instructed on an element of the offense is whether the “reviewing court concludes be yond 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 , 527 U.S. 1, 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 , 645 F.3d 1213, 1224 (10th Cir. 2011); United States v. Serawop , 410 F.3d 656, 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 ev idence, but simply asks more generally6 “whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained,” 527 U.S. at 15 (internal quotation marks omitted). See, e.g. , United States v. Alexander , 817 F.3d 1205, 1214 (10th Cir. 2016); United States v. Luke-Sanchez , 483 F.3d 703, 705 (10th Cir. 2007). Defendants rely explicitly on the former versi on of the standard, arguing the Burrage error in this case cannot be found harmless for two dist inct reasons, i.e., because causation was contested and because the government’s ca se on causation was no t overwhelming. We need not parse out the proper formul ation 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 th e standard set out in Brecht v. Abrahamson , 507 U.S. 619, 637 (1993): “whether the error had substant ial and injurious effe ct or influence in determining the jury’s verdict.” 3 See United States v. Dago , 441 F.3d 1238, 1245-46 (10th Cir. 2006); see also United States v. Dominguez Benitez , 542 U.S. 74, 81 n.7 (2004) (“When the Government has the bur den of showing that constitutional trial error is harmless because it comes up on colla teral review, the heightened interest in

2 The case law reflects some controve rsy on that point. For an extensive discussion, see the concurrences in United States v. Pizarro , 772 F.3d 284 (1st Cir. 2014).

3 Defendants argue alternativel y 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 ap ply different versions of the Brecht standard depending on the error assess ed for harmlessness.7 finality generally calls for the Government to me et the more lenient [ Brecht ] standard.”). We therefore use the Brecht standard in assess ing the harmless-error issue here. 4 While this is a more lenient standard, the bur den of persuasion remains on the government and, thus, “when a cour t is ‘in virtual equipoise as to the harmlessness of the error’ . . . , the court should ‘treat the e rror . . . as if it affected the verdict.’” Fry v. Pliler , 551 U.S. 112, 121 n. 3 (2007) (quoting O’Neal v. McAninch , 513 U.S. 432, 435 (1995)). 2. Government’s waiver argument The government argues we may affirm the district court’s harmless-error determination without even considering the tr ial record. The indi ctment 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 wh ich 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 w ith respect to causation of se rious 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 , 766 F.3d 1219, 1235 (10th Cir. ) (noting this court’s di scretion to affirm on any ground adequately supported by the record), cert. denied , 135 S. Ct. 735 (2014). While the legal standard we apply is differen t, the parties fully briefed (both here and in the district court) the issue of harm less error, which turns on an established evidentiary record. See id. at 1236 n.12 (discussing c onsiderations underlying the exercise of our discretion to af firm on alternative grounds).8 may summarily affirm their convictions on that alterna tive 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 cour t itself initially narr owed 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 governme nt eventually did make that argument in response to a motion for reconsiderati on filed by defendants). In any event, because we conclude that the evidence regard ing 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 re cord 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. Alt hough they invoke the Neder standard inappropriately applied by the district court, th eir evidentiary argument is readily assessed under the Brecht standard. The district court held that the gove rnment presented an overwhelming case that the fentanyl Robin G. obtained thro ugh defendants was the but-for cause of her death. In particular, the di strict court noted that the g overnment presented two expert witnesses—the medical examin er 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 of9 Robin G.’s death. On appeal, defendants point only to the testimony of their expert, Dr. Karch, who contested th e medical examiner’s and toxicologist’s opinions by invoking the possibility that drug toleranc e could have protected Robin G. from the effects of overdose and the possibility that postmortem redistri bution of fentanyl could have affected the levels found by th e toxicologist. Although he could offer no definitive opinion on an al ternative cause of death, Dr. Karch “discount[ed] the Fentanyl entirely,” R. Vol. 3 at 5530. Th e 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 acquitta l on the resulting-in-death charge would obviously have been require d. Given the accepted opinions of the medical examiner and toxicologist and the reje cted opinion of defendant’s e xpert, 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 fo r the LIOs of drug and health care fraud violated the Double Jeopardy Clause, because the unqualified vacatur of their original convictions by th e 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 v acates a jury conviction for legal error, double jeopardy pr otections bar subsequent re view and correction of the vacatur order. And, indeed, authority is s quarely to the contrary. The Supreme Court has repeatedly held that “[w]hen a jury retu rns a verdict of guilty and a trial judge (or10 an appellate court) sets as ide 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 , 543 U.S. 462, 467 (2005). The Court explained the reasoning be hind this principle in United States v. Wilson , 420 U.S. 332 (1975): [P]olicies underlying the Double Jeopardy Clause militate against permitting the Government to appeal af ter a verdict of acquittal. Granting the Government such broad appeal ri ghts would allow the prosecutor to seek to persuade a second trier of fa ct of the defendant ’s guilt after having failed with the first; it w ould permit him to re-exa mine the weaknesses in his first presentation in order to strengthen the second; and it would disserve the defendant’s legitimate inte rest 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 pros ecutor a new trial or subject the defendant to the hara ssment traditionally asso ciated with multiple prosecutions. Id. at 352 (emphasis added and footnote om itted). Further, the Supreme Court has noted its approval of the spec ific practice of “direct[ing] the entry of judgment for a lesser included offense when a convicti on for a greater offense is reversed on grounds that affect only the greater offense.” Rutledge v. United States , 517 U.S. 292, 306 (1996); see, e.g. , United States v. Smith , 13 F.3d 380, 383 (10th Cir. 1993) (directing district court to impose conviction on LIO af ter vacating conviction on greater offense for insuffi cient evidence of element not required for LIO); Ragland v. United States , 784 F.3d 1213, 1214 (8th Cir. 2015) (vacating conviction for drug distribution resulting in death and remanding “with instructions fo r the district court to enter judgment on the less er include offense of [d rug] distribution”).11 Defendants note the LIO convi ctions here were imposed by the district court on collateral review, rather th an at the direction of an appellate court on remand from a direct appeal, but that is “a di stinction without a difference.” United States v. Silvers , 90 F.3d 95, 99, 101 (4th Cir. 1996) ( holding “district c ourt’s action [in a § 2255 proceeding] of reinst ating [defendant’s] previous ly-vacated [lesser included] conspiracy conviction, afte r vacating his CCE conviction on grounds that did not affect the conspiracy conviction, was a ppropriate and did not violate the Double Jeopardy Clause”). The material point is th at correcting a vacatur order by instating LIO convictions supported by the jury verdic t “would not grant the prosecutor a new trial or subject the defendant to the harass ment traditionally asso ciated with multiple prosecutions,” Wilson , 420 U.S. at 352—and that is equa lly true whether the district court does so at the direction of an appella te court on remand from a direct appeal or on its own reconsideration of a v acatur order on collateral review. 5 We note Silvers

5 The Sixth Circuit succinc tly made much the same poi nt in a related context (where the district court had granted a post-verdict mo tion for acquittal but changed its mind on reconsideration and rein stated the vacated conviction): There is no question that a postver dict 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 moti on for reconsideration. It would be odd indeed to say that the trial court was precluded, on a motion for reconsideration, from doing what th e appellate court clearly has the authority to do. United States v. Maddox , 944 F.2d 1223, 1232-33 (6th Ci r. 1991) (citation omitted).12 was one of the cases specifi cally cited with approval by the Supreme Court in Rutledge

. See 517 U.S. at 306. In sum, we reject defendants’ contenti on that “[a]s soon as the district court reversed and vacated the [resulting in d eath or serious bodily injury] convictions, Double Jeopardy clearly prohibited the gover nment 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-e rror 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 id. at 17-18 (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 th e passions of the jury to influence their decision on
any one count”). This claim was not asse rted in defendants’ § 2255 motions,13 raised in the motion for COA, or included in the COA order. We therefore do not consider it. The judgment of the distri ct court is affirmed.

Entered for the Court
Monroe G. McKay Circuit Judge