Burrage v. United States
criminal; jury conviction on heroin distribution with death-results enhancement, affirmed by CA8; certiorari by defendant on the causation standard for "results from" (result: mixed)
Facts
- 8 Death or serious bodily injury results from the use of such substance (§ 841(b)(1)(A)-(C) 20-year mandatory minimum) not no-evidence
Banka and his wife, Tammy Noragon Banka (Noragon), then met with petitioner Marcus Burrage and purchased one gram of heroin from him.
- 8 Death or serious bodily injury results from the use of such substance (§ 841(b)(1)(A)-(C) 20-year mandatory minimum) not no-evidence
Dr. Eugene Schwilke, a forensic toxicologist, determined that multiple drugs were present in Banka's system at the time of his death, including heroin metabolites, codeine, alprazolam, clonazepam metabolites, and oxycodone.
- 8 Death or serious bodily injury results from the use of such substance (§ 841(b)(1)(A)-(C) 20-year mandatory minimum) not no-evidence
Dr. Schwilke could not say whether Banka would have lived had he not taken the heroin.
- 8 Death or serious bodily injury results from the use of such substance (§ 841(b)(1)(A)-(C) 20-year mandatory minimum) not no-evidence
She described the cause of death as "mixed drug intoxication" with heroin, oxycodone, alprazolam, and clonazepam all playing a "contributing" role.
- 8 Death or serious bodily injury results from the use of such substance (§ 841(b)(1)(A)-(C) 20-year mandatory minimum) not no-evidence
The court instead gave an instruction requiring the Government to prove "that the heroin distributed by the Defendant was a contributing cause of Joshua Banka's death."
- 8 Death or serious bodily injury results from the use of such substance (§ 841(b)(1)(A)-(C) 20-year mandatory minimum) not no-evidence
"Results from" imposes, in other words, a requirement of actual causality.
- 8 Death or serious bodily injury results from the use of such substance (§ 841(b)(1)(A)-(C) 20-year mandatory minimum) not no-evidence
We hold 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 the penalty enhancement provision of 21 U.S.C. § 841(b)(1)(C) unless such use is a but-for cause of the death or injury.
- 8 Death or serious bodily injury results from the use of such substance (§ 841(b)(1)(A)-(C) 20-year mandatory minimum) not no-evidence
the Government concedes that there is no "evidence that Banka would have lived but for his heroin use,"
- 8 Death or serious bodily injury results from the use of such substance (§ 841(b)(1)(A)-(C) 20-year mandatory minimum) not no-evidence
Burrage's conviction with respect to count 2 of the superseding indictment is therefore reversed, and the case is remanded for further proceedings consistent with this opinion.