U.S. v. Mackay, 2015 WL 4269608 (7/15/15) (Ut.) (unpub'd) - With the case in an unfavorable procedural posture, the 10th affirms the vacation of two counts of distributing a controlled substance resulting in death, 21 U.S.C. § 841(b)(1)(E)(i), due to jury instructions that violated Burrage v. U.S., 134 S. Ct. 881 (2014). Initially the 10th affirmed Mr. Mackay's convictions, but remanded due to unrelated sentencing errors. While the case was on remand before the district court, the S. Ct. decided Burrage, which required for a resulting-in-death conviction that the government prove the victim's use of the drug was a but-for cause of death. The d. ct. vacated the convictions because its instructions did not conform to Burrage. The 10th holds an exception to the law-of-the-case doctrine---an intervening and dramatic change in controlling legal authority--- permitted the d. ct. to do that. This was so, even though the mandate only called for resentencing. The mandate rule is just a subspecies of the law-of-the-case doctrine and so the intervening-change-in-the-law exception applied to that rule as well. The jury instructions gave no guidance as to what "resulted from" meant. The jury could easily have thought, as the government had argued in Burrage, that the drug need only contribute to the death. The 10th's ruling on the initial appeal that the evidence was sufficient to prove a but-for cause did not preclude relief here. Evidence sufficiency is a different issue than whether the jury that convicted under erroneous instructions would have convicted a defendant under proper ones. The government then loses the forfeiture battle. The government argued in its reply brief that Mr. Mackay had forfeited his bad-instruction claim by not raising it on direct appeal. But the government forfeited its forfeiture argument by not raising it in its opening brief. Finally, the 10th does find that the d. ct. was wrong to find the evidence insufficient under Burrage. The law of the case required acceptance of the 10th's initial holding that the evidence was sufficient to prove a but-for cause. Remand for a new trial.