involves the application of the causation requirement under this serious injury and handsome and of section eight forty one b one c thankfully in the case of bar the victim gave the recovered from his overdose on like the victim in barrage also thankfully we know from the barrage case that the enhancement requires a showing of but for causation we also know the barrage majority explicitly endorsed an implied the factual causation test as traditionally understood namely the government must prove that a harm would not have occurred in the absence of that is but for the defendant's conduct rush was a mixed drug intoxication case and it was unclear from the evidence in that case whether the drugs supplied by the defendant were a but for cause of the victim bankas death the expert in barrage simply could not answer whether the victim would have lived had he not taken the heroin supplied by barrage the facts of this case are substantially similar to broad and the government in the case of bar has likewise failed to carry its burden the victim referred to as j v had overdosed four days earlier and had a most of multiplicity of drugs in his system including for opiates the key issue in the case is whether or not the government satisfy the actual causation requirement as set forth in barrage of united states broad show that at least where the use of the drug distributed by the defendant is not in independently sufficient cause of the victim's death or serious bodily injury a there is no evidence the banker would have lived but for his heroin use in short because the government could not satisfy the but for causation test likewise in the case of bar there is no evidence that j v would not have overdosed but for his use of heroin and fent no provided by mr seale because there was no evidence ruling out or otherwise excluding the a c to found no found in his blood as the actual cause the expert testimony narrowed down the cause of davey's injury to morphine off the government concedes in briefing the drugs provided by mr seals were not independently sufficient to cause serious bodily injury so the only remaining issue is whether those drug yes at page forty three of the of the government's brief it was they say in footnote number two the it's a difficult let me let me go back to that what the quote is it says for the purposes of this appeal the united states does not contend that the defendant's heroin and or independently sufficient to cause the injury in this section of the brief however the defendant claims that in order to prove it would say that that's the government's brief isn't it yes that's the government's right so that was the sense i was referring to the judge or by what i'm was trying to say judge locum was it what we're dealing with here is the but for cause and this is a mixed drug intoxication case involving the very same complex issues that the broad court had to address of course the case would be simple of all the drugs found in j b system were attributable to the defendant because in that case no matter the type of interaction between the drugs the ultimate cause of injury would be the result of the drugs provided by the defendant however in mixed drug intoxication cases where s substance not provided by the defendant is identified as a possible actual cause the government must satisfy its a evidentiary burden by putting on some evidence well they get they have to put on some evidence but in this case there's there's the evidence of the expert but there's also just the facts as it played out right i mean the what's the guy's name starts with a v j v j yeah he is  then comes back to the pump and then and everything seems install captured you know on video right and so he seems all ok it's all copacetic right until he gets to the gas pump and then he just sort of collapses now isn't that sufficient to say that but for the injection of the drugs in the in the restroom he would not i had this incident well i think under barrage we have to look at what drugs were in happens and he collapses as a result of what he's just take it well but for causation of a serious injury well he could have been under a barrage of contributing factor the problem here is a lack of evidence about that the expert says the scene or what the expert can say i've provided facts as described that's what happened well he says he's making an educated opinion that it was the time he got yours and says you can look at the facts then i would concede that the facts do not look good for mr seals and that the timing is not good however i think it's a harder case and if it's a de for the government then it is if it's a serious injury case i just i don't deny that it's still about four causation standard but you can't just take all of the all of the analysis and in the bird death case sufficient showing a but for causation i think i think is somewhat different circuit case where you know you spent many many pages on the exclusivity argument which i'm not even sure i understand but as i understand it it's clearly rejected involvement and i don't know if if we don't agree with exclusivity in other words if if we concede if we agree that a combination of drugs can result in a conviction for serious injury so long as there is a jury for reasonably fine but for causation well in the in the recent in the briefs we refer to the requirement as an exclusivity rule arguing there must be some evidence excluded a substance not provided by the defendant as a but for cause however it was urging us to take the restatement third of torts as applied to civil litigation right just lifted into this country well i believe that's pretty much what judge scalia does as you point out with respect to a death claim case after reviewing the experts testimony it would be more accurate to say the government must provide some either one could have been emanation he acknowledged that you would have to know when and how it was taken and he end he says he would have to have the concentration to know that government does not have to prove the negative with someone who got all this stuff in their system and these facts in my view the government doesn't have to prove the negative as to all those other drugs well i reserve the rest my time judge and i'll come back and we can hear it is there any is there any case was a lot different kind of what the ultimate holding in gaylord is that the seventh circuit found the district court here because gaillard alleged facts to support his claim that is council performed efficiently by failing to provide him with the post mortem and prince of path ology but underlying that they indicate that they had to know whether the ox a code on was was the actual cause or whether the drug that was already in its system was the cause and so we had to look at those path ology reports here we have a blood screening it's not a blood test it doesn't show the concentration and dr pruitt said that in order to say whether the  out that in in many of these cases i think it says something forty six percent there are other drugs and someone system when they overdose and overdoses and overdose whether there's a death or not because the penalty is for causing the injury and so in the same way they would have to prove that and so your argument essentially is is that what he took that day that he received from the defendant had to be an independent sufficient cause to cause the serious so and the government has never argued nor do they say there is any evidence to show that my client provided the seed of phenols i think from from what was presented to the jury we have to take it as fact that the a c defender was not provided by my client and i just want to get it that that's kind of what i had seen and i was yes just you know that i'm sure as well as i do that as you defend those frequently phone is a trace in mixtures that contain heroin event pages fifty nine through fifty nine through some sixty one of the expert testimony which was part of the trial thank you that we're looking at here we're not in the abstract and generally trying to determine what legally causes of death we're talking about a jury verdict finding by a jury and so the court here has to accept all reasonable inferences supporting the verdict that as a judge locum pointed out we don't need to exclude every reasonable hypothesis except guilt and really what the court is looking for is whether there's any interpretation of the evidence that could lead a reasonable jury to convict  uncontested facts here are that the defendant sold the drugs to the to the victim the victim shot up those drugs that being heroin in fentanyl in the bathroom the gas station in your research what would you say is injury frankly as far as appellate judges and that's i'm i'm when you ask the question i'm struggling think i think most of the cases that i found if not all the cases were death cases and i think your point in questioning mr earle is absolutely correct that they're different than help us how are they different out how does that affect you know well ultimately they're different factually i don't think the analysis is any different but when you when you have a death case you have necessarily a medical expert  trying to take a picture of take a post mortem picture they get the blood they then try to extrapolate or take the evidence that they have and then draw a conclusion from that in an injury case in particular this injury case we have more than just that post mortem snapshot of what was in the blood we have actually have on video here and the live witnesses testimony as to the course of events and judge erickson i think you're absolutely right that the jury is allowed to and required to look at all of the evidence not just this snapshot of what was in the individual's blood some time after the injury here you know that's all all true but but the the the defendant's argument that if you look a barrage itself it does seem to leave the impression that as you weigh out the evidence that you have to show that that but for the introduction of the new system that the new drug into this is the body systems that that the injury would not have occurred that's the first thing and i guess you can inferentially draw that because the guy was walking around talking and didn't seem to have any problems and you draw from that as well the experts testimony that a seed of fentanyl has a half life which is what drug it's one of those analogs of fentanyl and so at this point there is no evidence as to how long that might stay in the blood it could stay in the blood for a day or be detectable in that way we have no idea the jury had no idea and that's sort of critical fact here is that what the jury had and again we're looking at a jury finding the jury found that the heroin in fact that the defendant distributed that j v used in that bathroom and then minutes later collapsed and the paraphernalia tested positive for and so there's there's the question though is on a jury finding whether there's any reasonable hypothesis we don't know if it was in the in the substance it could have been from something as i mentioned since we don't know the half life of the substance it could have been from something he had taken the night before and still went in the blood the jury wasn't required to find as a matter of law that the substance that  at three fifty five or whatever it was when every time the actual transaction occurred on november fourth the jury here found that the substance containing the substance that was distributed by the defendant was heroin final and that it was used and that's entirely consistent with the physical evidence and mr viner's testimony just hear me on this the i think burrage stands for the for the proposition that if in fact the second ingested drug is a mere contributing factor to the death of the serious bodily injury that's insufficient and i believe that the defendant is arguing that because of the lack of quantitative analysis of the blood you cannot tell whether or not the substance sold by the defendant was a mere contributing factor to the substantial bodily injury and i think they contribute they that they would in fact concede that that's true because just the timing of it as he collapses at the gas pump they can't really argue that that it didn't play any role but what they're saying is you need to establish but have failed to establish the fact that in the absence of the there's an entirely reasonable interpretation of evidence that that is no was there as your honor described for while he was walking around while he was going into the bathroom so if that is in his system and it's not cause of the injury and that's entirely consistent with dr pruitt's testimony which is whatever the last opiate he took that's what caused the injury and that's the gist of that testimony and that's that's what he different than these injury cases you know i can we get the death cases are different we say that all the time the problem with this is the enhancement in the statute says death or serious bodily injury right it does and so really the an necessarily be the same and doesn't it or i would agree the legal analysis is the same it we're applying the same but for causation test it's just that the facts of the cases as they arrive and the nature of the conclusions that have to be drawn are just naturally going to be different as i mentioned post mortem toxicology and post mortem testimony by a medical examiner oftentimes is going to be really heavily focused on the concentration of the drugs in the person system that's just what they're he gets some blood take and they test as much as they need to do their tests all that's left is like a thimbleful i think is what mr harris testified and then he's out of the hospital and he leaves of his own accord so the government only has the blood the tiny little bit that was there and there's not enough there to do a qualification so that's why it's different in that factually speaking you're going to have to look at the entire picture which you would in a death case as well but you just can't pin the entire result on whe ther their injury was caused by a particular substance based on a tiny amount of blood that was taken at some undetermined time after the injury occurred and that's dr pruitt's testimony with respect to the  need for determining the qualification of a particular substance or you need to know how much the concentration was that would be at that to determine whether cause the injury that would be at the time of the injury this blood was taken some time substantially after could have been an hour later and obviously blood the substances are being processed out of the blood and you can't you're not getting the same snapshot as what happened so you will actually with these particular drugs given the enzymes in the blood itself if you if you delayed two weeks to test it there's still some ongoing changes in the in the drugs right i mean it's not one of the things they talk about opie it's generally is that they're fairly unstable they break down into  on heroin breaks down the morphine almost immediately and so does a phenol it's needed you know and then they're left with these trace elements but you know like with alcohol it's breaking down once you take the blood out of the body and there's apparently some period of time where the those drugs within the blood continue to metabolize even in the absence of the blood being actually oxygenated in the only only stop changing when the blood becomes completely and oxic which is some period of time right so if we test that blood you know five minutes later after it's drawn and we tested an hour later that there is some minor differences then that's what i understand the science to be including the hypothetical i don't think that's what birds i think you know the reason i answer the question the way i did it when you talk about a contributing factor it's looking back to the previous barraged or bridge case law where this court upheld that only needed to be a some factor contributing to the end result so when i when i hear the term contributing factor it's a sort of term of art true but i'm not i'm not sure how much of the prior law was overruled by well i think when it comes down to it when when we have to look here is the but for cause and so whether one phrase it as well this was the straw that broke the camel's back therefore it contributed to the death and that that would be very case if he wouldn't have taken the person who sold him the j v a seattle fed for days earlier if charged with this crime would have a heck of a good argument under bert yes that would be a problem they're both contributing factors but one of them is but transaction you would you would be making about the same argument it would be much more factually  contributing cause and the multiple independent sufficient causes which were urged by the government at that time following up on the fent no analog is the the failure to get the blood draw or to have the proper evidence before the court is not something that can be blamed on the on the defendant it's the government's burden to put forth the evidence necessary and in this case they did they had no evidence to show that the a seed of phenol was not the cause and in fact their own expert said by itself it could have been the c ok but the jury but what what happened is that that might make steam colleague said that the jury didn't have evidence on that what this is our point the jury was left to speculate any of the burden was on the government