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; STEPHEN 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 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, 704 F.3d 1287 

 *

 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. 

FILED 

United States Court of Appeals

Tenth Circuit 

November 4, 2016

Elisabeth A. Shumaker 

Clerk of Court
2 

(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, 
3 

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, 134 S. Ct. 881 (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.” Id. at 892; see also id. at 887 (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 
4 

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. 
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 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 id. at 992-93, 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, 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 evidence, but simply asks more generally 
6 

“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 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, 507 U.S. 619, 

637 (1993): “whether the error had substantial and injurious effect 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 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, 772 F.3d 284 

(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. 
7 

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, 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 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, 

766 F.3d 1219, 1235 (10th Cir.) (noting this court’s discretion to affirm on any 

ground adequately supported by the record), cert. denied, 135 S. Ct. 735 (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 id. at 1236 n.12 (discussing considerations underlying the 

exercise of our discretion to affirm on alternative grounds). 
8 

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 
9 

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 
10 

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, 543 U.S. 462, 467 (2005). The Court 

explained the reasoning behind 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 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. 

Id. at 352 (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, 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 after vacating conviction on 

greater offense for insufficient 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 for the district court 

to enter judgment on the lesser include offense of [drug] distribution”). 
11 

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, 90 F.3d 95, 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,” Wilson, 420 U.S. at 352—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, 944 F.2d 1223, 1232-33 (6th Cir. 1991) (citation omitted). 
12 

was one of the cases specifically cited with approval by the Supreme Court in 

Rutledge. See 517 U.S. at 306. 

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 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 the passions of the jury to influence their decision on 

any one count”). This claim was not asserted 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 district court is affirmed. 

Entered for the Court 

Monroe G. McKay 

Circuit Judge