1. 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.
2. 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 a person.
Lower court decision: United States v. Burrage, 687 F.3d 1015 (8th Cir. 2012)
This case is important for lawyers practicing in federal courts in Wisconsin, as it will resolve a split between the Seventh and Eighth Circuits. In this case, the Eighth Circuit approved a jury instruction containing language meant to elaborate on the statutory requirement that a death “result from” the use of a substance the defendant’s distributed. The instruction told the jury it need find only that the substance was “a contributing cause” of the victim’s death, which it defined as “a factor that, although not the primary cause, played a part in the death.” The Seventh Circuit held that very similar language in a jury instruction merited a new trial, as it arguably confused the jury about the minimum legal causation needed to convict. United States v. Hatfield, 591 F.3d 945, 947-51 (7th Cir. 2010).
As Hatfield notes, 591 F.3d at 947, there is “a proliferation of unhelpful terminology” about causation–something evident in Burrage’s proposed jury instruction, which confuses “proximate cause” (about foreseeability of harm) with whether something was a substantial factor in causing the harm, 687 F.3d at 1020 n.3. The case will thus be a vehicle for clarifying the causation standard and what the jury must be told about it. Hatfield also notes the cases are “unanimous” that § 841 has no proximate cause or foreseeability requirement, but does (and may) impose strict liability, 591 F.3d. at 950; thus, the grant on the first issue apparently springs not from a circuit split but from some other perceived need to clarify the meaning of the statute.
It does not appear this case will have any impact on Wisconsin’s reckless homicide analog, § 940.02(2) (the “Len Bias” law). Under State v. Bartlett, 149 Wis. 2d 557, 439 N.W.2d 595 (Ct. App. 1989), our statutory requirement that the victim died “as a result of” the use of the substance imposes a substantial factor test. See WIS JI–CRIMINAL 1021 at 2 n.10. To establish that the conduct was a “substantial factor,” the state must prove that “‘the accused’s conduct was an antecedent ‘but for’ which the result in question would not have occurred.’ However, this is not always enough. The state must further establish that ‘the harmful result in question be the natural and probable consequence of the accused’s conduct.'” Bartlett, 149 Wis. 2d at 566. That is essentially how Burrage asked the judge to instruct the jury (though, as noted, he confusingly called it “proximate cause”). As to the second issue raised in the grant, that is seemingly addressed by § 940.02(2)(a)1., which provides the statute applies “[w]hether the human being dies as a result of using the controlled substance … by itself or with any compound, mixture, diluent or other substance mixed or combined with the controlled substance ….”