Under the Controlled Substances Act1×1. 21 U.S.C. §§ 801–904 (2012). (CSA), “if death or serious bodily injury results from the use of” an illegally distributed Schedule I or II drug, then the distributor of that drug faces a twenty-year minimum prison sentence.2×2. Id. § 841(b)(1)(C) (emphasis added). Schedule I and II drugs are those with “a high potential for abuse.” Id. § 812(b)(1)(A), (b)(2)(A). This “results from” penalty enhancement has been susceptible to varying interpretations among the courts.3×3. Compare, e.g., United States v. Monnier, 412 F.3d 859, 862 (8th Cir. 2005) (finding that the “results from” standard requires only a showing of “contributory cause”), with, e.g., United States v. Hatfield, 591 F.3d 945, 948 (7th Cir. 2010) (finding that “but for” causation is “the minimum concept of cause”). In 2014, the Supreme Court clarified in Burrage v. United States4×4. 134 S. Ct. 881 (2014). that the enhancement cannot apply unless a distributed drug is a “but-for cause of the death or injury”5×5. Id. at 892. — a cause without which the death or injury would not have occurred.6×6. See id. at 887–88. Recently, in United States v. Smith,7×7. No. 6:13-34-KKC, 2015 WL 4458891 (E.D. Ky. July 21, 2015). the United States District Court for the Eastern District of Kentucky applied the Burrage framework to uphold a “results from” penalty enhancement based on an oxycodone overdose.8×8. Id. at *2, *21. The court was correct to determine that the evidence supported the finding that the oxycodone was a “but-for” cause of the victim’s death.9×9. See id. at *14. However, the court’s examination of other substances found in the victim’s system highlights a question left open by Burrage: whether the but-for causation requirement of the “results from” enhancement is inapplicable when the drug distributed is “an independently sufficient cause of the victim’s death or serious bodily injury.”10×10. Burrage, 134 S. Ct. at 892. Without such an interpretation, the enhancement may fail to apply to anyone in cases where a victim is harmed by multiple sufficient causes. Furthermore, such an interpretation could simplify the adjudication of “results from” enhancement cases in which there are multiple possible causes of a victim’s harm.
Sometime around March 2011, Terry Smith, a trailer-park landlord in Kentucky, began running an oxycodone-distribution operation.11×11. Smith, 2015 WL 4458891, at *2, *19. Smith would pay for “sponsorees” — usually drug addicts or trailer-park tenants behind on rent — to travel to out-of-state pain clinics and fraudulently obtain oxycodone prescriptions.12×12. Id. at *2. After returning to Kentucky, sponsorees would repay Smith in pills for the money he had advanced them, and Smith would either split the remaining pills with the sponsorees or offer sponsorees cash for their share.13×13. Id. In September 2011, sponsorees Patty Smallwood and Bill Stanley obtained oxycodone prescriptions at a pain clinic in Tucker, Georgia, and the couple kept and consumed their share of pills.14×14. Id. at *5. The next morning, Stanley awoke to find that Smallwood had died.15×15. Id. A blood sample taken shortly after Smallwood’s death indicated that she had “low or normal” amounts of alprazolam, THC, and hydrocodone in her system,16×16. Id. at *9. Alprazolam is a benzodiazepine used to treat anxiety, Alprazolam, MedlinePlus, https://www.nlm.nih.gov/medlineplus/druginfo/meds/a684001.html [http://perma.cc/4F6K-JGKD]; THC is the major active ingredient in marijuana, Cannabidiol, MedlinePlus, https://www.nlm.nih.gov/medlineplus/druginfo/natural/1439.html [http://perma.cc/KWE6-6ZTB]; and hydrocodone is a narcotic pain reliever, Hydrocodone, MedlinePlus, https://www.nlm.nih.gov/medlineplus/druginfo/meds/a614045.html [http://perma.cc/3GHB-K9V6]. but a lethal level of oxycodone.17×17. Smith, 2015 WL 4458891, at *10. Her cause of death was listed as “combined drug intoxication.”18×18. Id. at *9.
In August 2013, Smith was arrested19×19. Id. at *15. after a governmental drug “Task Force” searched his two homes and found medical records of visits he had made to pain clinics.20×20. Id. at *3. A grand jury indicted Smith on three counts, including “distributing oxycodone resulting in the death of Patty Smallwood.”21×21. Id. Smith was also indicted for conspiring to knowingly and intentionally distribute oxycodone and for being a felon in possession of firearms. Id. Additionally, Smith’s wife, Gerry Smith, was indicted for conspiring to knowingly and intentionally distribute oxycodone. Id. In January 2015, a jury found Smith guilty on all counts.22×22. Id. Gerry Smith was found guilty as well. Id. The jury also concluded that Smallwood’s death “would not have occurred but for her use of oxycodone distributed by [Smith].”23×23. Id. After the guilty verdict, Smith made several motions, including a motion for a judgment of acquittal pursuant to Rule 29(c) of the Federal Rules of Criminal Procedure and a pro se motion for a new trial pursuant to Rule 33.24×24. Id. at *4. Smith also filed an “unsigned pro se motion to ‘dismiss and/or suppress.’” Id. at *1. This motion echoed the claims mentioned in his Rule 33 motion, and the court denied it summarily. Id. at *21.
Chief Judge Caldwell of the Eastern District of Kentucky denied the motions.25×25. Id. at *21. Chief Judge Caldwell first affirmed Smith’s convic-tions under Rule 33’s more defendant-friendly weight-of-the-evidence standard.26×26. Id. at *5–11. Courts have interpreted this standard broadly as allowing them “to set aside a conviction that is against the weight of the evidence.” Tibbs v. Florida, 457 U.S. 31, 39 n.12 (1982). She then affirmed the convictions under Rule 29’s less forgiving sufficiency-of-the-evidence standard27×27. Smith, 2015 WL 4458891, at *12–15. Sufficiency-of-the-evidence challenges are less forgiving to defendants because courts must deny these challenges if, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). and dismissed the six legal errors Smith alleged.28×28. The court found that Smith “was not denied the right of a speedy trial,” Smith, 2015 WL 4458891, at *15, that the “United States did not engage in prosecutorial misconduct,” id. at *17, that “[t]he indictment was sufficient,” id. at *18, that “the statutory prohibition against felons possessing firearms” is not unconstitutional, id. at *19, that Smith’s “ineffective assistance of counsel claim [was] premature,” id. at *20, and that “[t]here were no generalized ‘plain errors,’” id. The court also found that lay witness testimony supported the jury’s finding that Smith had conspired to distribute oxycodone and had distributed the oxycodone that Smallwood took prior to her death. See id. at *5–9. In both her Rule 29 and Rule 33 analyses, Chief Judge Caldwell noted that to show that the oxycodone overdose resulted in Smallwood’s death, the government had to prove that the oxycodone was a “but-for cause of death.”29×29. Id. at *9 (quoting Burrage v. United States, 134 S. Ct. 881, 886 (2014)); see id. at *13. Relying on the Supreme Court’s 2014 decision in Burrage, Chief Judge Caldwell explained that proof of but-for causation “does not require the government to prove that use of the distributed oxycodone alone would have caused the death . . . ‘so long as the other factors alone would not have done so.’”30×30. Id. at *13 (quoting Burrage, 134 S. Ct. at 888).
In assessing whether the government had met its burden of proving that the oxycodone was a but-for cause of Smallwood’s death, the court compared the testimony of the medical experts called at trial.31×31. See id. at *9–11, *13–14. Beginning with the government’s witnesses, the court noted that the deputy coroner who took Smallwood’s initial blood sample found Smallwood’s oxycodone levels to be more than four times the maximum of the therapeutic range.32×32. See id. at *9. The court also highlighted the testimony of the government’s toxicology expert, who stated that the concentration of oxycodone in Smallwood’s system was more than twice the likely lethal amount.33×33. See id. at *10. Moving to the defense’s witness, the court observed that Smith’s expert — a medical examiner who claimed Smallwood’s cause of death was impossible to ascertain without an autopsy34×34. Id. — did not offer an alternative explanation of how Smallwood had died.35×35. See id. Furthermore, the court remarked, Smith’s expert was “not a toxicologist and [did] not claim to have any special expertise in toxicology,” and he even “refused to acknowledge that the level of oxycodone in [Smallwood’s] system could have had any effect, despite being more than four times higher than the upper bounds of the therapeutic level.”36×36. Id. at *11.
In light of the expert testimony presented at trial, the court concluded that the oxycodone was a but-for cause of Smallwood’s death.37×37. Id. at *11, *13–14. In response to Smith’s argument that “the oxycodone could not be a but-for cause . . . because [Smallwood’s] death certificate listed her cause of death as a combined drug overdose,” the court explained that “a combination of factors (using multiple drugs) producing a result (death) does not preclude one factor (oxycodone use) from acting as a but-for cause if death would not have occurred without the one factor (oxycodone use).”38×38. Id. at *14.
Although Chief Judge Caldwell was right to deny Smith’s motions, the court could have gone a step further and determined, in light of Burrage, whether a finding of independent sufficiency by itself supports liability under the “results from” enhancement. This question is significant for two reasons: First, there will inevitably be cases in which there are multiple sufficient causes of a victim’s harm;39×39. See Joshua Dressler, Understanding Criminal Law 187 (5th ed. 2009). in such cases, it seems that no individual cause is a but-for cause of the harm, and thus, unless the but-for causation requirement is inapplicable, no one can be found guilty of the enhancement.40×40. See id. (“Our intuitions probably suggest that both actors should be convicted . . . . Yet, the but-for test seems to fail us here . . . .” (emphasis omitted)). Second, an interpretation of the enhancement not requiring but-for causation in cases of independent sufficiency could simplify the adjudication of cases in which there are multiple possible causes of a victim’s harm. Without such an interpretation, courts must rule out alternative explanations of a given harm in order to convict a defendant under the enhancement.
Underlying the question whether the “but-for” causation requirement is inapplicable in cases of independent sufficiency is the more fundamental question of what it means for one thing to cause another.41×41. Cf. Lawrence Crocker, A Retributive Theory of Criminal Causation, 5 J. Contemp. Legal Issues 65, 68 (1994) (“[I]f something is to count as a cause for the criminal law it must be a cause in the sense that ordinary people speak about causation for middle-sized physical objects.”). In both tort and criminal law, the concept of causation is generally broken down into two subconcepts42×42. See Burrage v. United States, 134 S. Ct. 881, 887 (2014). : actual causation — which sets the minimum requirements for what qualifies as a cause — and proximate causation — which sets limits on what causes we treat as legally relevant.43×43. See Paroline v. United States, 134 S. Ct. 1710, 1719 (2014) (“A requirement of proximate cause . . . serves, inter alia, to preclude liability in situations where the causal link between conduct and result is so attenuated that the consequence is more aptly described as mere fortuity.” (citing Exxon Co., U.S.A. v. Sofec, Inc., 517 U.S. 830, 838–39 (1996))). Actual causation is generally defined as “but-for” causation, according to which X is an actual cause of Y if (and only if) Y would not have happened “‘but for’ (had it not been for)” X.44×44. United States v. Hatfield, 591 F.3d 945, 948 (7th Cir. 2010); see also Model Penal Code § 2.03(1)(a) (Am. Law Inst. 1985) (“Conduct is the cause of a result when . . . it is an antecedent but for which the result in question would not have occurred . . . .”). The Supreme Court appealed to this general definition of actual causation in Burrage in order to interpret the minimum requirements of the CSA’s “results from” penalty-enhancement provision;45×45. Burrage, 134 S. Ct. at 887–88. At issue in Burrage was the Eighth Circuit’s position that the “results from” penalty enhancement required only a lesser showing of “contributing” causation, id. at 886; see United States v. Burrage, 687 F.3d 1015, 1020–21 (8th Cir. 2012); United States v. Monnier, 412 F.3d 859, 862 (8th Cir. 2005), where “[a] contributing cause is a factor that, although not the primary cause, played a part in the death,” Burrage, 687 F.3d at 1019. there the Court observed that “it is one of the traditional background principles ‘against which Congress legislate[s]’ . . . that a phrase such as ‘results from’ imposes a requirement of but-for causation.”46×46. Burrage, 134 S. Ct. at 889 (alteration in original) (quoting Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2525 (2013)).
The Burrage Court did qualify its holding, however, in light of the fact that but-for causation is often not required in cases of independently sufficient causation.47×47. See id. at 892 (limiting its holding to cases in which the “drug . . . is not an independently sufficient cause”); see also Model Penal Code and Commentaries § 2.03 cmt. 2 at 259 (Am. Law Inst. 1985); Wayne R. LaFave, Principles of Criminal Law 234 (2003). Such a qualification is necessary because we might otherwise be left with overdose cases in which no one is liable for the enhancement. For example, if a victim dies after taking a lethal dose of heroin from dealer X and a lethal dose of cocaine from dealer Y, then neither drug is a but-for cause of the victim’s death.48×48. Cf. Dressler, supra note 39, at 187 (describing an analogous situation involving simultaneous, fatal gunshot wounds). By declining to “accept or reject [a] special rule” for whether the but-for causation requirement is inapplicable in cases of independently sufficient causation,49×49. Burrage, 134 S. Ct. at 890. the Burrage Court left open the possibility of avoiding a paradoxical outcome in which neither dealer X nor dealer Y is liable for the enhancement.
The reason the Burrage Court merely raised the question whether the but-for causation requirement is inapplicable in cases of independent sufficiency, instead of answering it in the affirmative, is that there was no evidence before the Court that the drug distributed by the defendant was independently sufficient to produce the harm at issue.50×50. Id. Similarly, many post-Burrage “results from” enhancement cases have not had occasion to answer the question because they have not involved any debate over but-for causation and have not included clear testimony that the drugs distributed by the defendant were independently sufficient to produce the harm at issue.51×51. See, e.g., Mims v. United States, No. 2:15-CV-08008-LSC, 2015 WL 5126284, at *3 (N.D. Ala. Aug. 31, 2015) (“[T]he medical examiner who relied on [the] toxicological report to form his opinion as to cause of death would have testified at trial that, but for the heroin in his system, the victim would have lived. And Mims stipulated and specifically agreed to that fact in the factual basis of his plea agreement.”); United States v. Grady, No. 5:14CV80780, 2015 WL 4773236, at *3 (W.D. Va. Aug. 12, 2015) (“Grady admitted in the guilty plea colloquy that [the victim’s] bodily injury resulted from the heroin he distributed . . . .”); United States v. Schnippel, No. 1:15–cv–69 (LMB), 2015 WL 4358052, at *4 (E.D. Va. July 14, 2015) (“The key evidence at trial supporting the Court’s ultimate finding that the heroin [the victim] obtained from Schnippel was an actual cause of her two non fatal overdoses, as well as her death, took the form of stipulations.”). In Smith, by contrast, the court heard testimony from multiple experts who were “prepared to say that [the victim] would have died from the [oxycodone] use alone.”52×52. Burrage, 134 S. Ct. at 890; see Smith, 2015 WL 4458891, at *13. The Smith court was thus uniquely positioned to address whether the but-for causation requirement applies in cases of independently sufficient causes. Such a decision, of course, would not have been binding on the Eastern District of Kentucky or on other courts, but it would have established persuasive authority for the inevitable case in which a victim’s harm has multiple sufficient causes.
In addition, an interpretation of the “results from” enhancement not requiring but-for causation in cases of independent sufficiency could simplify the adjudication of cases with multiple possible causes of the victim’s harm. As the Smith court showed, without such an interpretation, courts must rule out alternative explanations of a given harm in order to find that the enhancement applies (otherwise, the harm still would have occurred, even “in the absence of” the drug distributed by the defendant).53×53. Burrage, 134 S. Ct. at 887 (quoting Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2525 (2013)); see Smith, 2015 WL 4458891, at *10. Unfortunately, a substantial number of overdoses — including Smallwood’s — involve multiple drugs.54×54. See Brief for the United States at 29, Burrage, 134 S. Ct. 881 (No. 12-7515). See generally Phillip O. Coffin et al., Opiates, Cocaine and Alcohol Combinations in Accidental Drug Overdose Deaths in New York City, 1990–98, 98 Addiction 739 (2003) (noting that multi-drug use is a key risk factor in overdose mortality and finding that most overdose fatalities in New York City from 1990 to 1998 involved the use of multiple drugs). In United States v. Grady,55×55. No. 5:14CV80780, 2015 WL 4773236 (W.D. Va. Aug. 12, 2015). for example, the court had to contend with a claim that the victim suffered injury from an assortment of prescription drugs and alcohol, and not from the heroin supplied by the defendant.56×56. See id. at *3. Resolving these cases often requires a nuanced assessment of the interrelationship among various substances in the body.57×57. Cf. Brief for the United States at 28, Burrage, 134 S. Ct. 881 (No. 12-7515) (“[T]he lethality of drugs in combination is . . . widely recognized.”). Furthermore, victims often have underlying medical conditions that prosecutors, juries, and judges must take into account when assessing liability for the “results from” enhancement. In United States v. Volkman,58×58. 797 F.3d 377 (6th Cir. 2015). for example, not only did the court have to consider the possibility that drugs from multiple sources had caused the victims’ deaths59×59. See id. at 396–98. — despite some evidence that the drugs prescribed by the defendant were independently lethal60×60. See id. at 396–97. — but the court also had to rule out the possibility that one of the victims’ deaths had resulted from a preexisting heart condition.61×61. See id.; see also United States v. Schneider, 112 F. Supp. 3d 1197, 1213 (D. Kan. 2015) (“The government’s expert listed heart disease as a contributing cause of death and defendant’s expert testified that the cause of death was undetermined due to [the victim’s] heart condition and the lack of testing to determine his tolerance to the prescription drugs.”). In each of these cases, an interpretation of the enhancement that did not require but-for causation might have enabled the courts to restrict their inquiry to the sufficiency of the drugs distributed by the defendant.
This is not to say that focusing on sufficiency is a panacea. Not only is evidence of an independently sufficient cause lacking in many cases, but the determination of independent sufficiency can also be a difficult medical question.62×62. See Maia Szalavitz, Difficulties in Determining a Drug Overdose Death, Time (June 16, 2010), http://content.time.com/time/health/article/0,8599,1996831,00.html. See generally Beth F. Jung & Marcus M. Reidenberg, Interpretation of Opioid Levels: Comparison of Levels During Chronic Pain Therapy to Levels from Forensic Autopsies, 77 Clinical Pharmacology & Therapeutics 324 (2005). However, as discussed above, proving but-for causation already entails proving that alternative causes are insufficient, and in cases where the evidence and expert testimony make clear that a particular drug is independently sufficient, an interpretation not requiring but-for causation can simplify the court’s inquiry. In Smith, for example, there was evidence that Smallwood had more than twice the lethal level of oxycodone in her system.63×63. Smith, 2015 WL 4458891, at *10. Nevertheless, the court had to dismiss the causal significance of therapeutic amounts of alprazolam and hydrocodone64×64. See id. at *9–10. — which generally must be taken in doses multiple times their recommended maximums in order to be lethal65×65. See D. Kimberley Molina & Veronica M. Hargrove, What Is the Lethal Concentration of Hydrocodone?, 32 Am. J. Forensic Med. & Pathology 108, 109–10 (2011); Alprazolam Tablets, USP, DailyMed, https://dailymed.nlm.nih.gov/dailymed/archives/fdaDrugInfo.cfm?archiveid=9294 [http://perma.cc/6BRB-MM9P]. — as well as THC66×66. See Smith, 2015 WL 4458891, at *9–10. — which, for practical purposes, cannot be taken in lethal doses.67×67. See Marijuana Rescheduling Petition, No. 86-22, at 57 (Drug Enf’t Agency Sept. 6, 1988) (opinion & recommended ruling) (“A smoker would theoretically have to consume nearly 1,500 pounds of marijuana within about fifteen minutes to induce a lethal response.”). An interpretation of the enhancement that did not require but-for causation not only would have allowed the parties to focus on the lethal level of oxycodone in Smallwood’s system, but also would have enabled them to de-emphasize what almost certainly were the benign effects of the other drugs.
It is also worth noting that an interpretation not requiring but-for causation would ensure more uniform application of the “results from” penalty enhancement. We might imagine, for example, that a victim is harmed after taking doses from two distributors, each dose of which is necessary, but insufficient, to cause the harm. The enhancement will apply to each distributor in this case, but it will not apply to either distributor — unless the but-for causation requirement is interpreted to be inapplicable — if each of the doses is independently sufficient. By interpreting the enhancement to impose liability on all distributors of independently sufficient doses, courts would avoid situations in which we give weaker penalties to distributors of independently sufficient doses than we give to distributors of independently insufficient doses.
The Smith court was by no means obligated to resolve these issues, and Chief Judge Caldwell reached the right result in denying Smith’s post-trial motions. Had the court decided to adopt an interpretation of the “results from” enhancement that did not require but-for causation in cases of independent sufficiency, however, it could have addressed some of the problems discussed above. Such a decision, while nonbinding, would have provided persuasive authority for dealing with future cases in which these problems will inevitably arise.