United States District Court, E.D. Michigan, Southern Division
ORDER REGARDING JURY INSTRUCTION ON DEATH RESULTS
UNDER 21 U.S.C. 841(b)(1)(C)
Page Hood United States District Judge.
has been charged in a 21-count Indictment with unlawful
distribution of controlled substances, in violation of 21
U.S.C. § 841(a)(1). Count Seven charges that
Defendant's prescription of oxycodone for a patient
(“DH”) resulted in DH's death. Conviction on
Count Seven carries a mandatory minimum sentence of 20 years
to life. In preparing jury instructions for his case, the
Government and Defendant disagree on whether the instruction
for Count Seven should include a requirement that the
Government prove that DH's death was reasonably
foreseeable to Defendant.
recent United States Supreme Court case could have addressed
t h is is s u e . I n Burrage v. United States,
U.S., 134 S.Ct. 881, 887 (2014), the court granted certiorari
on two issues: (1) whether a defendant can be convicted when
the drug was only a “contributing cause” of the
death; and (2) whether the jury must be instructed that the
death by overdose was a “foreseeable result” of
the illegal distribution of controlled substance(s) for which
the defendant was convicted. Unfortunately, the
Burrage court did not reach the second issue.
Court recognized in a recent Order, a defendant cannot be
liable under the penalty enhancement provision of 21 U.S.C.
§ 841(b)(1)(C), unless such the victim's use of the
controlled substances is a “but-for cause” of the
death or injury. Burrage, 134 S.Ct. at 892. But-for
causation occurs when the distributed drug combines with
other factors to produce death, and death would not have
occurred without the incremental effect of the controlled
substance. United States v. Volkman, 797 F.3d 377,
392 (6th Cir. 2015). As the Burrage court stated:
When a crime requires “not merely conduct but also a
specified result of conduct, ” a defendant generally
may not be convicted unless his conduct is “both (1)
the actual cause, and (2) the ‘legal' cause (often
called the ‘proximate cause') of the result.”
1 W. LaFave, Substantive Criminal Law § 6.4(a), pp.
464-466 (2d ed. 2003).
“Results from” imposes, in other words, a
requirement of actual causality. “In the usual course,
” this requires proof “‘that the harm would
not have occurred' in the absence of__that is, but
for__the defendant's conduct.” University of
Tex. Southwestern Medical Center v. Nassar, 570 U.S.
___, ___, 133 S.Ct. 2517, 2525, 186 L.Ed.2d 503 (2013)
(quoting Restatement of Torts § 431, Comment a (1934)).
Burrage, 134 S.Ct. at 887-88.
Burrage was decided, several Circuits have addressed
whether a jury must be instructed that the Government must
prove that a victim's death was foreseeable to the
defendant as a result of distributing the controlled
substance(s) to the victim. Each of those Circuits has
concluded that the trial court need not give an instruction
requiring the jury to make a finding regarding the
foreseeability of death from the use of a controlled
substance. See United States v. Harden, 893 F.3d
434, 449 (7th Cir. 2018) (“In sum, the ‘death
results' enhancement in § 841(b) does not require
proof that the death was reasonably foreseeable”);
United States v. Alvarado, 816 F.3d 242, 250 (4th
Cir. 2016) (“[T]he ‘plain language [of §
841(b)(1)(C) ] reveals Congress' intent' to
‘put[ ] drug dealers . . . on notice that their
sentences will be enhanced if people die from using the drugs
they distribute.'” (quoting United States v.
Patterson, 38 F.3d 139, 145 (4th Cir. 1994)); United
States v. Burkholder, 816 F.3d 607, 618 (10th Cir. 2016)
(holding that the government was not required to prove that
death “was a reasonably foreseeable result” of
the defendant's distribution of a controlled
United States v. Volkman, 797 F.3d 377, 392-93 (6th
Cir. 2015), the Sixth Circuit noted the defendant conceded
that the district court had properly given the jury a
“but-for” causation instruction; the
“but-for” causation instruction included the
directive that “[i]n order to establish that a death
resulted from [d]efendant's conduct, the government need
not prove that the death was foreseeable to the defendant, .
. .” Numerous district courts in the Sixth Circuit have
considered the “foreseeability of death” issue
since Burrage and have uniformly recognized that the
Government is not required to prove that the death was a
reasonably foreseeable result of the distribution of the
controlled substance. See United States v. Davis,
2019 WL 168325, at **2-4 (N.D. Ohio Jan. 11, 2019);
United States v. Anderson, 2018 WL 2306985, at *7
(M.D. Tenn. May 21, 2018). See also De La Cruz v.
Quintana, 2014 WL 1883707, at *2 n.2 (E.D. Ky. May 1,
reviewing Defendant's brief, the Court is not persuaded
that th e o t h e r cou r ts were mistaken. Defendant does
not cite the Court to any authority holding that Section
841(b)(1)(C) requires proof that the victim's death was
foreseeable by Defendant. Section 841(b)(1)(C) does not use
or include the word “foreseeable.” None of the
cases in the Sixth Circuit identified by Defendant held that
the trial court should have included an instruction that the
Government must prove that the victim's death was
foreseeable, nor has the Court found such a case in this
reasons set forth above, the Court holds that the Government
does not have to prove that DH's death was foreseeable to
Defendant in order to prove that DH's death would not
have occurred but-for ...