                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    July 15, 2015
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff-Appellant,
                                                        No. 14-4093
 v.                                            (D.C. No. 1:10-CR-0094-DB-1)
                                                          (D. Utah)
 DEWEY C. MacKAY, III,

          Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before LUCERO, SEYMOUR, and GORSUCH, Circuit Judges.


      After a jury trial Dr. Dewey MacKay found himself convicted of forty

federal charges. On appeal he argued (among other things) that the trial record

contained insufficient evidence to support his convictions on two counts of

distributing a controlled substance that “result[ed]” in death. See 21 U.S.C.

§ 841(a)(1), (b)(1)(C), (b)(1)(E)(i). This court disagreed. It found sufficient

evidence existed to support those convictions but remanded the case in light of

some unrelated sentencing errors. United States v. MacKay, 715 F.3d 807, 830,



      *
         This order and judgment is not binding precedent except under the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.
846-47 (10th Cir. 2013). Shortly after our decision and while the case was before

the district court on remand, the Supreme Court issued Burrage v. United States,

134 S. Ct. 881 (2014). Burrage held that to secure a conviction for distributing a

drug that “results” in death the government must prove the victim’s use of the

drug “is a but-for cause of the death,” at least when the drug isn’t “an

independently sufficient cause of the victim’s death.” Id. at 892. In the district

court’s view, its jury instructions failed to conform to Burrage’s newly

announced standard so it vacated Dr. MacKay’s convictions on the two affected

counts even as it kept the remaining thirty-eight other convictions in place.

      The government now appeals this latest decision. It argues that the district

court on remand had no business reconsidering Dr. MacKay’s two distribution-

resulting-in-death convictions. In the government’s view, this court’s mandate

allowed the district court to reconsider only Dr. MacKay’s sentence, not his

convictions. That’s true but it’s not quite dispositive. The mandate rule is a

subspecies of law of the case doctrine and an important one at that: it ensures

that rulings settled on appeal remain settled by limiting the district court’s

latitude to revisit them on remand. United States v. Webb, 98 F.3d 585, 587 (10th

Cir. 1996). But law of the case rules, while vital, are not without exceptions

important in their own right. One important exception allows the district court to

depart from an appellate mandate when there’s an intervening and “dramatic

change in controlling legal authority.” United States v. Moore, 83 F.3d 1231,

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1234 (10th Cir. 1996). And the district court expressly invoked this exception in

this case, holding that Burrage represented a dramatic change in the law.

      Neither do we discern any error in this conclusion. At trial, the district

court gave the jury no guidance on what the government must prove to show that

a death “resulted from” the drugs in question. Without any guidance on that

score, the jury easily could have understood the term as suggesting a lesser

causation standard than Burrage demands — perhaps along the lines of a

“substantial factor” in or “contributing to” the victim’s death. Indeed, before

Burrage a long line of cases required only this lesser level of proof in similar

circumstances. See, e.g., United States v. Monnier, 412 F.3d 859, 861-82 (8th

Cir. 2005); People v. Jennings, 237 P.3d 474, 496 (Cal. 2010); State v.

Christman, 249 P.3d 680, 687 (Wash. App. 2011); Commonwealth v. Osachuk,

681 N.E.2d 292, 294 (Mass. App. 1997). And in Burrage itself the government

took the view that the statute required it to prove only that the drug in question

“contribute[d] to” death. Br. for the United States at 22-26, Burrage, 134 S. Ct.

881 (No. 12-7515). It’s obvious, then, why the district court judged Burrage to

represent a serious change in the law that it had to account for.

      Against this, the government points out that this court in MacKay

anticipated and applied Burrage’s causation standard when assessing whether

sufficient evidence existed in the record to support the jury’s verdict. This

observation, however, is beside the point. The district court departed from the

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mandate because it viewed Burrage as indicating that its jury instructions were

legally erroneous. Before us the government itself never questions the district

court’s judgment on this score, nowhere disputing that court’s assessment that it

failed to instruct the jury as Burrage requires. And an erroneously instructed jury

is an entirely different and independent problem than a record lacking legally

sufficient evidence to support a conviction, though of course either one can lead

to a verdict’s undoing. Coming at the point from another angle: a defendant is

generally entitled to a conviction supported both by a properly instructed jury and

by legally sufficient evidence. An appellate ruling that a hypothetical jury had

enough evidence to convict under hypothetical and correct instructions doesn’t

necessarily entail the conclusion that a jury that convicted under admittedly

erroneous instructions would’ve convicted under proper ones. The government’s

argument in this court simply conflates these independent concepts and legal

demands. See, e.g., Griffin v. United States, 502 U.S. 46, 59-60 (1991); Jackson

v. Virginia, 443 U.S. 307, 318-19 (1979); United States v. Holly, 488 F.3d 1298,

1304, 1311 n.11 (10th Cir. 2007) (reversing based on erroneous jury instructions

although “the government has presented sufficient evidence to permit a jury to

find Holly guilty”).

      So it is the government is left to retreat in this way. Now it contends Dr.

MacKay forfeited any challenge to the jury instructions by failing to challenge

them in the first appeal. Because of this at least, the government argues, the

                                        -4-
district court should not have entertained any argument about the jury instructions

on remand. But even assuming without deciding that a forfeiture on appeal might

preclude a party from taking advantage of a later dramatic change in law while

the case is on remand, the government’s argument to this effect faces a forfeiture

problem of its own. The government did not raise its forfeiture argument in this

appeal until its reply brief — which, of course, means its own argument comes

too late and any forfeiture problem has itself been forfeited. See, e.g., Wheeler v.

Comm’r, 521 F.3d 1289, 1291 (10th Cir. 2008). After all, it’s long since settled

that law of the case doctrines generally — and forfeiture rules specifically — are

ones of policy and practice, not matters affecting our jurisdiction, and their

benefits may be lost when not timely asserted. See, e.g., Moore, 83 F.3d at 1234-

35.

      That leaves the government with one more argument still we must consider.

And here we agree with it. In vacating Dr. MacKay’s convictions, the district

court not only found its jury instructions erroneous under Burrage, it also

separately and alternatively held the evidence insufficient when analyzed in light

of Burrage. But as the government has pointed out, MacKay held that the

conviction in this case was supported by legally sufficient evidence under a

standard consistent with Burrage’s. See 715 F.3d at 830. And we don’t see any

exception to the law of the case doctrine that might have allowed the district court

to second guess this court’s assessment on that score. For while no one before us

                                         -5-
questions whether a dramatic difference exists between the jury instructions given

in this case and what Burrage requires, there is no such dramatic difference (or,

really, any difference at all) between the law Burrage prescribes and the law this

court applied when reviewing the sufficiency of the evidence in the first appeal.

So the district court’s alternative ground for vacating the convictions on remand

cannot stand even as its primary ground proves sound and is by itself enough to

permit us to sustain the judgment.

      The motion for leave to supplement the appendix is granted. Although the

hard copies of the appendix do not include Dr. Hail’s testimony, we were able to

view the full transcript on the district court docket. See Doc. 318, Testimony of

Dr. Stacy Hail, at pages 135-86. The judgment of the district court is affirmed.



                                              ENTERED FOR THE COURT



                                              Neil M. Gorsuch
                                              Circuit Judge




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