indictment which is regarding a death enhanced meant for a sale of narcotics that being fenton all and heroin in this case mr long was facing a mandatory minimum twenty year sentence of imprisonment and ultimately was sentenced to three hundred months imprisonment by judge nugent the northern district of ohio here one of the major issues is whether or not the government proved beyond reasonable doubt that mr line actually caused the death of this and all the testimony from both toxicology as well as the coroner as well as the defendant's expert state that this was a mixed drug overdose ows a pram heroin infant and all well considering the congressional intent of the nine hundred and twenty four dollars c clause it's provide drug dealers notice that if you sell drugs which then kill someone you're subject to these harsh mandatory minimum sentences of imprisonment but in this case there's a lot of factual and legal discrepancies regarding the amounts of drugs in the federal blood as well as what drugs may or may not have been adjusted by the deceit and the alleged sale of this case took place on february th two thousand to whether or not a substance was distributed by the by mr line i don't think that's necessarily the argument it's what substance in fact was distributed because no one witness the hand to hand transaction no one actually saw the deceased woman in just the drugs there were other drugs that were found in her room including a separate dose of heroin which have not been linked to mr lund as well as xanax that was also not linked to mr line so with regards to i don't know whether i appealed it or not i don't know and it is kind of important to some or your other yes and with that we did appeal the whether or it's a sufficiency what about the coroner dr frank miller now is it fair to say that based upon your pinion that but for the use of the fed on heroin that dollars death would not have occurred that is my opinion yes and then that was further clarified that it was all three drugs that caused the death of this individual there was no autopsy performed in this case which to sentence someone to twenty five years on causing someone's death without an autopsy i think causes a grave concern for the government in this that that causes a great great concern on the sufficiency of the evidence to convict him of this twenty year mandatory minimum handsome man she could have because of the great time gap between when the distribution occurred at approximately seven to eight whether or not the government proved beyond a reasonable doubt that mr lyon distributed the drugs that actually caused her death is is the crux of the argument here because without the mix truck overdoes this is that my opinion so in other words the combination of her one is what caused her to dog that is my opinion it's six hundred and three you don't like i have a little bit of a so what i thought you could have bought for because of the criminal impact of the bad truck a mother's incriminating drug i thought that was i thought that was the point that's why i was asking jury instruction for sufficiency and you're focused on sufficiency and it seems to me you can have but for but for the incriminating drug the opinion is no doubt so i don't know why it helps you to keep going back to three drugs and all three played a role but doesn't eliminate the but for you can have more than one but for that's that's the real point one in this case that's why the objection was made to the without that incremental a fact of the drugs would her death had been cau and there is testimony that the victim was not a not even the night before with on on other drugs want to make sure i'm getting your argument doesn't that prove this is a jury instruction to be not a sufficiency to be it's both of that's why our st assignment of errors regarding the jury instruction but if the jury instruction is legit you have to lose because there is evidence that this had the incremental effect of killing the individual so this that's what i'm trying to get it seems to me it's instruction as nothing that's the thing so that's why in this case i think what's so unique about it is the is the as a crime and the fact that she was snorting it and the fact that these drugs the based on the levels of heroin in fact  system it could she could have survived based on her tolerance to that good morning honors may it please the court my name is laura ford and i'm here on behalf of the united states the evidence in this case was more than sufficient to show the defendant one distributed the drugs that resulted in the victim's death the instructions in this case for but for causation were consistent with the supreme court's decision in barrage the incremental effect language was a theory that the supreme court specifically excepted in and opinion it's equivalent to saying that the combined effect of the substance is an issue had to have caused the victims death or in other words without that combined effect the victim would have lived to convict under the instructions that were provided the jury had to have found that the victim's death would not have occurred without the victim using the substances that one distributed either alone independently or in combination with other factors is the evidence that from the corner that the combination of the three as opposed to the two did the trick  yes but to the extent of the combination i would say that the dioxin penes corner testified that those independently do not have  a potential for being a toxic substance that in this case they were within the low therapeutic range and independently there was not a lot of lethal potential for that  role in the victim's death because he specifically testified that but for the use of fenton on heroin the victim would not have died and i would suggest actually that these substances were the independent cause of her death overdoses that want to tune into graham's miller the coroner testified that he's seen overdoses a two to three so she's over that amount i think also significant in this case is that she was a recovering heroin addict and she had been clean for a number of months in miller specifically acknowledged that she was a recovering addict and that there is a significantly higher risk of overdose when you return those st two weeks of returning to use because you can't use the same amount your liver is not used to processing that drug anymore and you're at a high risk of overdose in this case i think also critical it's incremental effect in combination go in other words you know you have six or seven substances and only one of them is illegal can you really have a corner get up there and say the combination of the seven substances cause the death one of them was illegal that's part of the seven that makes it but for can you do that doesn't have a does not stop at some point well i think what you have to show and i guess in the supreme court's words that the the substances it is you were the  believe it applies when there are six hundred and seventy eight potential causes well just getting someone to say we're going to decide that one was the straw that broke the camel's back and a mixed drug case which is what we have i think you can still have an independent or for causation when you have drugs in isolation would be enough to cause death so even though you have for instance in this case the bones of diana's opinions independently that doesn't have a lot of lethal potential in this case  and it was the heroine in fact that they control the result in this case based on the significant amounts and notably the victim texts line after she received the substance from him and says that was each right and he i would suggest to the court that his testimony that the victim that her death would not have occurred without the scent on heroin in this case per se meets the but for cause asian standards that was established by the barrage of opinion and there was overwhelming evidence that it was one who was responsible for distributing this these substances there's testimony from her roommates that she was meeting gus who was identified as one a couple days before her death that she was meeting for him for drinks she tells her stepsister the night before that she met with gus and that he'd gotten her high she texts in the night before and says can you hook me up in a bit and he says yes where you at she says i'm at home i'm waiting for bree which is her stepsister briana robertson she picks her up she meets with line and a greater substance i plastic bag she returns home and text line and that's when she has the facebook message that was h and he confirms that it was and she's found dead the next morning approximately noon actually and she there is no evidence that she went anywhere else and also indicative of his guilt is that in a robertson's description he was completely freaking out and panicking he d friends the victim on facebook two hours after she died he's deactivating in reactivating his facebook account thousand times he gets a new phone number within a couple days and tells her stepsister to delete all calls and text from the last number and he's repeatedly asking her what have you heard all that is highly indicative of his guilt in this  distributed heroin to a confidential informant approximately two months after the fix and that there's a lot of four or four be cases where the the similar x stuff is later it's unusual in this case my instinct is it seems more problematic i'm not sure i can figure out why well in this case it was highly probative of the defendant's identity in this case there were two there was a as my colleague noted that there was another substance heroin or rock like substance that was found in a drawer next to the body in his nightstand there also was this open bag of the hair when fenton all mix that mix was what was consistent what matched the lab tests in this case so it was imperative for the government to show that it was one who was responsible for distributing that mixture to the victim in this case and he denied that it was somebody else according to him not only that in a recorded call with the victim stepsister he's telling her to stick to her story and he suggests that they please are trying to plant something on the net squarely placed his identity at issue this court has previously affirmed the admission of other acts testimony to show identity in a case where a defendant has claimed to think that police have planted crack cocaine the scene of the crime that was the two thousand and ten al prejudicial i'd like to know where the prejudice goes your view of it if if the st part of the distribution is not at issue in this appeal i'm right in that where is the prejudice when the only thing in the case is whether or not the expert testimony supports causation how how does that kind of legal question maybe a mixed question of fact all i'm not understanding the argument where could be prejudicial i would say it more went to his identity but he essentially conceded at the end not based on this control by but based on his own communication on facebook that he had distributed heroin to the victim that by far was more prejudicial than this evidence it wasn't based on this limited testimony i would emphasize that this was very limited in duration and in scope it spanned approximately twenty two minutes of the testimony was on the permitted to show ones i knowledge in this case because he denied that he knew anything about heroin that he didn't mess with that stuff he said that repeated lee during recording calls with the victim's sister and he denied having anything to do with the victim and then ultimately made it that well maybe he met her at a bar once and then oh well maybe we did meet the night before she died but you didn't see me put anything in her hand for those reasons the court properly found that that  testimony of the controlled by it was permissible to show identity and knowledge and that the potential for prejudice was was very low it was not outweighed by the probative value particularly given the other prejudicial evidence and again i think the most prejudicial evidence against him was his own communications and his behavior his paranoid be here and i guess i would like to note that one argues that he was prejudiced because the detective testified that confidential informant reported that line was being paranoid st of all defense counsel objected to that statement the court sustained but beyond that the fact that he was being paranoid was a given he was already part of the evidence it was independently admissible based on his conduct with to friending the big deal activating reacted beating his facebook account getting a new number that was all the evidence it was properly admitted this court has further questions at this time the government would respectfully request this court affirm one's convictions and his enhanced sentence for the death that resulted from his conduct in this case or thank you thank you guess analysis of how mr ms dollar died well she died of three drugs we've discussed two of those drugs were the only source of fat not on the drugs on top of the nightstand so even as question when pulling out that piece meal i combination of all three drugs that cause the disease die in this case and addition but under barrage you can have the straw that broke the camel's back i just don't understand why that doesn't account for this argument what  missing is in this case that was a pram could have been the straw that broke the camel's back she because of the level she could have survived with the heroin and found not alone in her system he says the combination of all three did the trick that proves all three were back breaking sticks but the defendant did not distribute one thousand pram doesn't matter if all three are back breaking sticks understand why that doesn't squarely satisfy broad because the victim could have survived potentially on just the amount of fat non heroin in her system so it's not independent it's that's the problem with the mixture of overdose in this case is that what had she survived or had the heroin on her nightstand been the heroin that also contributed to her death which is not sure we don't have it you have the supposed clarifying statement to trucks from the earlier statement that these two did the trick that word you're trying to say the waiter statement is i think the best way to reconcile them is ok maybe that was another one but these two by themselves would have done the trick and that's the problem there is that they could have is not that they did and the testimony is that from the doctor was that they could have but not that they did which was the issue with the quantities like a sit in the levels were off the charts sixteen dollars anagrams from the leaders that is a fatal dose dose here the levels were so close that at three p in the top of the therapeutic range three point three is survivable based on the person's own tolerance and the medical history of that person and in this case they also the doctor further goes on to say that the ops he was performed because of the medical objection or religious objection is just to have fiscal responsibility because of the amount of overdose deaths that the northern dish will hiles well as many other communities have been facing but due to this fiscal responsibility mr lunn is serving twenty five years in prison when an autopsy could have clarified this one way or another as to potential other causes or contributing factors for other straws that may have broke the camel's back in this sort of situation which the doctors do testify there could have been  an underlying heart condition or medical condition that was because this was not technically potentially an independent fatal does that there could have been other things that contributed to this individual stepped in while to stop this tragic to inhance someone to a twenty year minimum sentence and ultimately impose its twenty five year sentence based on all these unanswered questions is a very difficult thing for a jury in proof beyond a reasonable doubt that mr one caused this individual and going on further to some of the other arguments that were brought up by my counsel i guess due to time limits i would just refer to what's in my brief and say that at this point you know we are respectfully request in that the  video of the controlled by that the defendant admitted to he pled guilty to these counts why we did the video need to be played to the jury other than to prove that he's a drug dealer wants drug dealer always a drug dealer that impact that has on a jury is so strong and in this case the controlled by the person it was done with he's also deceased so he couldn't come in and testify which is why all the hearsay evidence also came into the jury was one pled guilty and accepted responsibility for that so we would ask once