Issues

Can a defendant who sells drugs to someone who dies of an overdose be held criminally liable for that
person’s death if the drug contributed to the victim’s death but was not the sole cause?

ORAL ARGUMENT:

November 12, 2013

COURT BELOW:

United States Court of Appeals for the Eighth Circuit

On April 14, 2010, Marcus Burrage sold heroin to Joshua Banka, who used the heroin and a cocktail of
other drugs, and was found dead the next day. Medical and toxicology reports indicated that the heroin
contributed to Banka’s death, but neither report said that Banka would have lived if he had not taken
the heroin. Burrage was convicted of distribution of heroin causing death under 21 U.S.C. 841, andhe
appealed arguing that the jury instructions were erroneous. In particular, Burrage challenged the
causation instruction under 841, arguing that the statute required the government to prove that the
heroin was the proximate cause of death, and not just a contributing factor. The district court
concluded, and the court of appeals affirmed, that the “contributed to” instructions were consistent
with Eighth Circuit precedent. The Supreme Court will now clarify the causation standard for the federal
crime of distribution of drugs causing death. This standard will determine when a person who
distributes drugs can be held criminally responsible for the death of the drug user, and what the
government must prove in such cases.

Questions as Framed for the Court by the Parties

Whether a person can be convicted for distribution of heroin causing death utilizing jury instructions,
which allow a conviction when the heroin that was distributed "contributed to," death by "mixed drug
intoxication," but was not the sole cause of death of person.

Whether the crime of distribution of drugs causing death under 21 U.S.C. § 841 is a strict liability crime,
without a foreseeability or proximate cause requirement.

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Facts
On November 17, 2009, Breanna Brown, a confidential informant cooperating with the Central Iowa
Drug Task Force, conducted a controlled buy of heroin from suspected drug dealer “Lil C.” Various
officers later identified Lil C as Petitioner Marcus Burrage, but at trial Burrage denied ever selling drugs
to Brown.

On April 14, 2010, Joshua Banka purchased heroin from Lil C in the presence of his wife, Noragon Banka
(“Noragon”). Banka used the heroin that night and the next morning Noragon found her husband dead
in their bathroom. The police searched their home and found a number of narcotics and prescription
medications, including oxycodone, marijuana, and heroin. Noragon gave police a physical description of
the person who sold heroin to her husband. Believing it was a heroin-related death, the Nevada (Iowa)
Police Department contacted the Central Iowa Drug Task Force, who sent Burrage’s photo to the police
based on Noragon’s description of the dealer. The police included Burrage’s photo in a photo lineup
shown to Noragon, and she identified him as the man who sold heroin to her husband.

On April 27, 2011, a grand jury charged Burrage under 21 U.S.C. § 841 (b)(1)(C) with distribution of
heroin causing death for the sale that preceded Banka’s death, and also charged him with the November
2009 sale. At trial, Dr. Eugene Q. Schwilke, a forensic toxicologist, testified that heroin was a
contributing factor to Banka’s death, but he could not state that Banka would have lived if he had not
taken heroin. Dr. Jerri McLemore, a medical examiner, conducted an autopsy on Banka’s body. Relying
on her physical examination and Dr. Schwilker’s toxicology report, she concluded that the cause of death
was “a mixed drug intoxication.” Like Dr. Schwilke, Dr. McLemore also could not say that Banka would
have lived if he had not taken heroin, only describing Banka’s death without the heroin as “very less
likely.”

At trial, Burrage proposed several instructions on the correct causation standard under 841 (b)(1)(C); he
argued that the statute’s “results from” language requires a showing of proximate cause. The district
court judge declined to give Burrage’s proposed instructions and instead instructed the jury that they
could convict Burrage if the government had proven that the heroin was a contributing cause in Banka’s
death. The jury convicted Burrage and gave him the minimum mandatory sentence of twenty years.

Burrage contends that the district court erred by using “contributory cause” language to interpret the
statute instead of proximate cause. The Court of Appeals for the Eight Circuit agreed with the district
court and held that there is no proximate cause requirement under 841 (b)(1)(C). The Supreme Court
granted certiorari on April 29, 2013.

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Discussion

The issue before the Court is under what circumstances a person who distributes drugs can be held
criminally liable for the “death or serious bodily injury result[ing] from the use of such substance”.
Petitioner Marcus Burrage contends that the Court of Appeals erred in using a “contributing cause”
requirement; he argues that common law and the plain meaning of the statute require a finding of “but
for” and “proximate” causation. The United States argues that drug overdose deaths do not require
proximate cause because the distribution and use of the drug itself serves the traditional function of
proximate causation. The court’s ruling will address criminal law’s ability to hold individuals responsible
for drug-related deaths, and could impact the language of many criminal statutes.

The IMPORTANCE of Defining the Causation Standard

In support of Burrage, the National Association of Criminal Defense Lawyers (“NACDL”) urge the Court to
reject the Eighth Circuit’s “contributing cause” standard; they argue that if the Court does not limit
liability to foreseeable consequences, then liability could attach to potentially infinite “contributory”
causes to a drug-user’s death, producing unfair and extreme results. Urging a proximate cause standard,
the NACDL notes that the Court has previously “read in” proximate cause requirements into civil
statutes even where the plain language of the statutes did not include proximate cause. Supporting a
heightened causation standard, Families Against Mandatory Minimums (“FAMM”) argues that the harsh
penalties attached when “death results” suggest that Congress intended stringent causal standards to
apply.

The United States counters that the “contributing cause” test is preferable because the “significant
factor” test is unclear and imprecise. Furthermore, the United States argues that the “but for” causation
test is an unsound tool when multiple forces coincide to produce a certain result because it would
potentially hold neither causes accountable for the result. Moreover, the United States argues that
requiring the proof of the circumstances – e.g., the distribution of the drug, use of the drug, and the
drug’s contribution to overdose death – fully serves proximate cause’s function of limiting criminal
responsibility to the types of injury that Congress intended to address with the statute.

Interpreting an Ambiguous Statute

The NACDL argues that when a statute’s language and structure are unambiguous, the rule of lenity
requires the court to read a criminal statute narrowly, which here would require proximate cause.
Further, the NACDL argues that no citizen should be punished for violating a statute whose commands
and punishments are not clearly prescribed. The NACDL asserts that the rule of lenity is founded on the
policy that the law should provide fair warning of the line between criminal and noncriminal conduct.
Otherwise, amici argue, overreading the phrase imposes a significant burden on the liberty of the
individual who is erroneously sentenced to a longer prison term.

The United States counters that Petitioner and amici’s reliance on the rule of lenity is misplaced because
in order to invoke the rule, the Court has to determine that there is a grievous ambiguity in the statute.
They argue that no ambiguity exists here because the courts have previously defined the causation
requirement in the Eighth Circuit. Furthermore, the United States argues that nothing suggests that
Congress would require the court to interpret a heightened standard of causation that would potentially
exonerate drug dealers of the foreseeable consequences of their unlawful actions.

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Analysis

This case asks the Court to consider when a drug dealer can be held responsible for a drug user’s death.
Burrage argues that the prosecution must prove but-for causation – i.e., that without the drugs Burrage
sold to the victim, the victim would not have died. Burrage further argues that 21 U.S.C. § 841 requires
that the victim’s death must have been a foreseeable consequence of the drug sale.The United States
disagrees and claims that the jury was properly instructed that the prosecution need only prove that the
drug Burrage sold was a contributing cause to the victim’s death.

ACTUAL CAUSATION: IS A “BUT-FOR” TEST REQUIRED?

Burrage argues that the “results from” language of the statute requires a causal connection between a
defendant’s actions and the resulting harm. According to Burrage, the causal connection includes both
proximate causation and but-for causation between a defendant’s actions and the resulting death.
Burrage argues that under the criminal common law, when “results from” is used in a criminal statute,
but-for causation and proximate cause are the minimum requirements to prove causation. To find a but-
for cause when multiple causes contributed to the result, Burrage says, there must be a stringent causal
standard that shows that the defendant’s actions were a substantial factor in causing the victim’s death.
Thus, Burrage argues, if the experts determined that Burrage’s actions would have independently
causeD the victim’s death, the substantial factor test would be satisfied.

The United States counters that a strict but-for test is not generally required in criminal law and should
not be required under the statute in this case.. When multiple forces yield a given result, such as a
victim’s mixed-drug death, the United States maintains that the ‘but for’ test would unfairly exonerate
culpable defendants. The United States argues that requiring proof of but-for causation in this case
would be improper when the victim died due to mixed-drug intoxication. Moreover, the United States
contends that the substantial factor test does not provide a clear standard and could become such a
heightened requirement that it would rule out some but-for causes. Additionally, the United States
criticizes the proposed independent sufficiency test because it would allow defendants acting in tandem
to escape criminally responsibility where none of their actions alone were sufficient to bring about the
result. The United States thus argues for the contributory cause standard, a test that it considers
suitable for deaths with multiple causes.

IS A CONTRIBUTORY CAUSE TEST SUFFICIENT?

According to Burrage, a contributing cause standard is inappropriate in this case because it does not
meet the statute’s causal requirements. Citing the statute’s text, Burrage notes that if Congress had
intended to use a contributing cause standard, it would have adopted language to clearly express this
intention. Still, even if the “death results” provision does leave room for the contributory cause
standard, Burrage argues that the Rule of Lenity must apply because the provision would otherwise be
grievously ambiguous. Burrage argues thatthe Rule of Lenity requires the court to read stricter causation
requirements into a statute when the statute is ambiguous on its face, to remedy the lack of fair
warning to the public. Burrage also argues that the harsh penalties under§ 841(b)(1)(C), which can
include life in prison, suggest a stricter causation standard than contributing cause. Such a penalty,
Burrage argues, should be reserved for those actions that are a substantial cause of someone’s death
and not merely a contributing cause.

The United States counters that the contributing cause test is the best way to determine the true cause
of death, because it asks if the defendant’s actions contributed to the unlawful result. The United States
urges that the contributory cause test’s approach has been used in the past and in modern criminal law.
Moreover, the United States that the “death results” provision favors a contributing-cause test because
the scenarios contemplated by the statute consist of death by multiple-drug overdose. Here, the United
States notes that although the experts could not identify any one drug as the but-for cause of the
victim’s death, they did say that the heroin was an important cause.

IS FORESEEABILITY REQUIRED TO PROVE PROXIMATE CAUSE?

Burrage argues that under common law foreseeability is always required to prove proximate cause in a
criminal case. In addition, Burrage contends thatafter proving but-for causation, the government must
also prove that the results of the defendant’s actions were foreseeable. Burrage argues that because
proximate cause limits the potential liability of an offense to only those actions that were directly
related to the offense, it is necessary in criminal cases. Moreover, Burrage asserts that without the
foreseeability requirement, the number of causes for any given result could become overly broad.
Burrage posits that disposing the foreseeability requirement would allow parties who were not direct
causes of the result, such as the victim’s wife, who allowed him to take the drugs, to be held liable.

The United States counters that even though most cases provide separate instructions for proximate
and actual cause, proximate cause instruction sare not required in this case. According to the United
States, the statute here only requires proof of causation in a case involving drug-overdose. The United
States explains that because the expert medical professionals said that heroin was a likely cause of
death and that the victim’s blood produced morphine levels that would be expected to be highly toxic,
the jury could have and did find causation sufficient to substitute foreseeability. The United States
contends that Congress chose to treat drug-overdose deaths as per se foreseeable to drug-traffickers.
Moreover, the United States suggests that Congress incorporated the foreseeability factor into the
statute, by calling attention to the drug’s danger and listing it as a Schedule I or II controlled substance,
thus signaling a foreseeable risk of death to the user.

REQUIRED MENTAL STATE

Burrage argues that the government must prove that he intentionally or knowingly caused Banka’s
death, or should have foreseen it; Burrage claims that in criminal cases, a defendant’s mental state
attaches to a showing of proximate cause unless the offense is a strict liability offense. Burrage explains
that a strict liability offense is one where regardless of the defendant’s mental state, he is guilty if he
engages in certain prohibited conduct. Here, Burrage argues that the mental states “knowingly or
intentionally,” which are stated in subsection (a), apply to all of the elements of the offense, including
the “death results” provision. Thus, he argues, the government must prove that he knowingly or
intentionally caused the death of the victim or that he should have foreseen the death of the victim due
to his actions.

The United States argues that the actual language of the statute does not require a mental state, as held
in many Courts of Appeals decisions that say there is no mens rea requirement for issues of drug types
and qualities in most drug trafficking cases. The United States contends that the Supreme Court
reaffirmed Congress’s intention to replace the proximate cause rule in special circumstances and that
the Court rejected a default proximate cause standard.

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Conclusion

In this case, the Supreme Court will decide whether a defendant can be convicted for the distribution of
drugs causing death when the defendant’s actions were a contributing cause of that death. The case
turns on a fundamental question in criminal law: how strong must the causal link be between a
defendant’s actions and a victim’s death to hold the defendant criminally liable? The Court’s decision
will clarify the causation standard for the federal crime of distribution of drugs causing death and could
impact the language of many criminal statutes.