Wednesday, January 29, 2014

Burrage v. U.S.: Trafficked Drug must be But-For Cause of Death

Burrage v. United States, supreme court rules in defendant's favor
On 1/27/14 the United States Supreme Court decided Burrage v. United States. The opinion limits the use of a Federal drug trafficking sentencing enhancement for cases where the drug user dies. The decision considers one specific statute, but it has lot to say about legal causation in general. In the end, the high court unanimously rejects the criminal causation rule used by Maine and a handful of other states.

A Deadly Bender

Joshua Banka was an intravenous drug user and, in the early morning hours of April 15, 2010, he overdosed and died. In the preceding hours, he used a lot of drugs including oxycodone stolen from a roommate and heroin purchased from the defendant, Marcus Burrage.

When police arrived to find Banka dead, they also found: baclofen, clonazepam, alprazolam, hydrocodone, oxycodone, a marijuana bong, a bag containing an unknown narcotic and about .59 grams of the heroin from Burrage.

Burrage was prosecuted in an Iowa federal court for violating 21 U.S.C. § 841(a) by distributing a controlled substance. The prosecution also invoked the penalty provisions of 21 U.S.C. § 841(b)(1)(C) which sets a mandatory minimum sentence of 20 years “if death or serious bodily injury results from the use of such substance.”

The Evidence at Trial

At trial, the medical examiner testified that the cause of death was a “mixed drug intoxication with the drugs contributing to death, including heroin, the oxycodone, the alprazolam and the clonazepam.” Testimony also established that Banka had physical health problems including heart and lung disease.

Many of the drugs involved were potentially fatal, but blood tests could not clearly distinguish the different kind of opiates in Banka's system and it was impossible to determine what amount of each drug he had taken. A toxicologist also testified, but neither expert was willing to say that heroin itself caused death, or that its omission from Banka's bender would have saved his life.

At the close of the government's case, the defense argued that the judge should acquit Burrage since the prosecution had failed to prove that Banka’s death “resulted from” Burrage’s heroin; no evidence could directly connect the heroin as the fatal agent. The judge denied that motion. The defense then asked for a jury instruction requiring the prosecution to prove that death was a direct result of the heroin. The judge rejected the proposed instructions and instead told the jury to find Burrage guilty: “if the heroin distributed by the defendant was a contributing cause of Joshua Banka’s death.” The jury returned a guilty verdict and the judge imposed the minimum 20 year sentence.

Burrage appealed. The eighth circuit affirmed finding that the court’s instructions were sufficient and that the defendant’s proposed instructions misstated the law since proof of proximate cause was not required.

The Supreme Court Opinion

Burrage’s prosecutors argued that the Supreme Court should adopt a concurrent causation rule, this would allow a conviction even without proof that the defendant’s heroin was itself sufficient to kill Banka. Under this rule, “death results from the use of such substance” if the defendant’s drug, together with other causes, created intoxication that lead to death. The government argued that overdose deaths often involve multiple drugs and a more restrictive causal link would be unworkable. Slip p. 10.

The Court disagreed saying: “Especially in the interpretation of a criminal statute subject to the rule of lenity,… we cannot give the text a meaning that is different from its ordinary, accepted meaning, and that disfavors the defendant.” Slip p. 12. Instead, the court decided to apply a “but-for” causation test:
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. Slip p. 15
The evidence at trial did not meet this test and so the conviction on that count was overturned. Burrage was convicted of other counts too and received a second concurrent 20 year sentence which remains undisturbed by this ruling.

Under Maine’s law, Burrage’s Conviction Would Stand

Maine gets a rare mention on page 12 of the slip opinion. The court notes that, though a few other states have adopted concurrent causation via case law, Maine joins with only Alabama, North Dakota, Arkansas and Texas by incorporating the rule into our criminal statutes. Maine’s law provides:
“when causing a result is an element of a crime, causation may be found where the result would not have occurred but for the conduct of the defendant operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the defendant was clearly insufficient." 17-A §33
Though the prosecution must normally prove all elements of the crime beyond all reasonable doubt, Maine’s causation rule shifts the burden a bit. It allows the prosecution to charge a crime where multiple causes could have created the result. As long as the defendant’s conduct contributed in some way, he is guilty unless the evidence proves that (1) the other causes were clearly sufficient to cause the result, and (2) that the defendant’s actions were clearly insufficient. That's a difficult bar to clear.

So is Maine’s Law Illegal?

Well, no. Burrage turns on an interpretation of §841(b)(1)(C) so it doesn’t change anything beyond that. But the language in the opinion certainly suggests that the court does not favor the more liberal theories of causation that some states use.

Maine has a similar Drug Trafficking enhancement and aggravated drug trafficking can be charged if “death is in fact caused by the use of that scheduled drug”. With our less exacting causation standard, that’s not too hard to prove.

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