good morning and may have please the court after the supreme court's decision burrage two things remain undeniable the st is that the term results from in the controlled substances act requires proof of but for causation that some a lesser standard such as contributing cause be a circuit approved of or it and  the nd thing that is undeniable is that to instruct a jury in a death and hansen a case without mentioning but for causation only can invite the very sort of error that they circuit committed burrage and that means in this case that the jury could have easily concluded that hardens th of a gram was simply a contributing cause not a but for cause yes i'm sure how do you get from courage the command that the instructions to the jury actually have to explain the results from which is the statutory language means but for causation and i would say beyond that since only lawyers would talk that way you know you would have to explain to the jury what mean when we say but for causation so i that's that's a lot to pack in to burgeon in this district court judge but it's about taking guidance from other of our cases thought that maybe just sticking with the results from equals but for so when it comes time to instruct a jury and you are defending a death and hand smith case the only reasonable instruction that you would insist upon for your client who is facing facing a death and hansen is that include the term but for that the supreme court ca win because what you're what you're left with without that is the same situation that caused the solicitor general that is circuit and lawyers and judges in other cases to make the same mistake and that is conclude that results from equals a lesser standard mr maybe i did and there are i think here it were your argument gets tough for me when you start to move beyond that you start to say that there you know it was legally required to give definition to the results from is the fact pattern you have here i think that argument's much better in a situation where you have a cocktail of potentially toxic substances and it's really important that the results from language not be interpreted to mean contributing cause because you're right back into the birds problem there but i just don't know where this is your fat pattern all our fact pattern it's not a cocktail but it is this what matters is not how many drugs the victim took but is there conclusive evidence of causation or is that evidence of causation conflicting that is it was it hardens th of a gram that caused the death or was it someone else's and in this case this court in the direct appeal has already found that there is that conflicting evidence that is that the court referred to it in the direct appeal is the jury could have found the opposite conclusion even the government's own witness d five hours later so whether there's one drug or four drugs in burrage what matters is whether there is a conflict in the evidence of causation we have that here so that's why the bu for instruction was so critical here because otherwise what you have is a jury is simply going to guess at what the correct standard is so are you saying it's not our decision and hatfield should be reversed the same problem here is judges and lawyers getting wrong what the meaning of results for all from was in that case the government even argue that playing a part was sufficient and we know that's that burrage it can't be enough because here's here's the thing that keeps coming back is that everybody knows what results from means after burrage but that that that's only true for those who read the berish decision in the jury does not get the burrage decision so they are left s c basically by not knowing what the true meaning of results from it is so when you're defending a case like this you have to insist that but for be included in the instruction otherwise you are putting your client at risk and you're making the jury essentially guess what the correct standard is that that is no way to impose a life sentence and can you tell us any case where an instruction such as the one in this case happened it court reversed and said the jury could have found from this just mere contribution as opposed to without this no death yes in the the best case and in that case of course it stated very plainly that without the but for language a jury could easily have applied the lesser standard in that's our case i mean the fact that there's one drug or two drugs the question is whether there was conflicting evidence of causation it's a mistake of all in this case when the government's own lawyer is saying that that's correct but i would i would say that the the contemporaneous evidence the only contemporaneous evidence is the text messages and so the jury could have said we believe the text messages show that she never took the heroin f five o'clock but still glued it that it was heroin was still just a contributing cause we're back to the same problem the jury is guessing what the correct standard is and that is intolerable especially when we're dealing with these death and hand sentences burrage gave the clear path going forward that results from language means but has to mean but for and to leave the jury to guess what that is is error is not harmless error and is ineffective this case this was not a guilty plea unlike some of the cases cited in the briefs this was a drop in at this trial the defense counsel challenged every aspect of the government's case whether mr harding conspired to to harding distributed there is no allegation here in this two thousand two hundred and fifty five that defense counsel was ineffective regarding the conspiracy conviction or the want to under ground drama quantity so it's firmly established that he provided effect used an investigator here to interview witnesses before trial to look for an alternate source and then attribute defense counsel use phone or arms text message to cross the government's lay witnesses actually introduce the toxicology report into evidence listen if favorable tests from doctors easy to talk to the jury that there was a competing timeline and that the you dollars hindsight but harms claims here require the distorted effects of hindsight which is exactly what strickland says that this court cannot engage in it's presumed at this point that mr here and in order to counsel and prejudice requires stanch and not just conceivable likelihood of a different result but mr cohen oh let me let me ask you this i mean it's certainly true that what the court opted for was this results from language that is the statutory language that i find it hard to believe that just language isn't statute the it's crystal clear and doesn't require any elaborations in jury instructions indeed you know we would be out of business practically of all statutes were that clear and they didn't need further explanation and so what mr poor is arguing on behalf of mr har a jury might think results from that contributed perhaps along the mackay lines or it might have meant what burrage tells us it needs to mean for causation and when counsel didn't object to the instruction didn't proffer an instruction elaborate on this further counsel was performing below the standard necessary your honor my you answer to that goes back  to the discussion during the origin of this hard which is the facts of this case are not eight drug cocktail multi drug toxicity case the facts of this case are not the make a case where you have again multi drug toxicity and you also had at least one expert in the case saying that pneumonia was the cause of death you had no expert in the k definitively saying what the cause of death was here we have not only the autopsy report but then we have supplemental testimony subject to direct and cross examination at trial it is this panel are excuse me just as this court said on direct appeal this was not a multi t case this was a single case so that's the st part of the answer the nd part of being a lawyer could you explain for me and then there's a challenge to whether that really matters so when it's a single drug case do you think it's impossible that somebody might take a dose that experts would regard as is a non lethal dose but then when you take another dose on top of it it tips you over the line and you die from it  that a drug kingpin be a forecast when it is the straw that broke the camel's back so you can hand out multiple heroic delivered to the same victim and the end results from is court has close whether there was a competing timeline here of a different drug that may have caused the death and results from as we know from  be with the strong presumptions that are afforded here that the jury somehow misapplied or misunderstood what is the common meaning of what do you make of the what do you make of the question the jury asked honor the jury never tied that question to anything they never tied the question to any particular piece of evidence they never tied it to a specific instruction they simply asked whether we can consider other possibilities that  not been present you have or you will try the case for the government i did not hear one yeah i've curious how how the question i mean i can i can recall in trials jurors sending out questions you're not sure how to interpret them ordinary that there's a dialogue and sometimes a asked how should we answer the question and the defense said that the answer should be clearly yes you can consider other possibilities the government initially said no thinking that what the question was going to facts not in evidence but ultimately the government agreed with both defense counsel and the court that the answer to that question was yes and then the court gave a follow on instruction the jury never asked another question so i think it would be inappropriate for us to guess what exactly the jury was was talking about there that's fair enough but why would a diligent lawyer in the face of a question like that why would a lawyer have said of course you can consider other possibilities but let's be clear on what the law requires with respect to causation and well go ahead i'm sorry the the jury instruction itself already said results all the jury comes back to the question and you know all of testimony and facts that the expert testimony etc when they get all the litigated that issue the jury comes back to the singular question that's not tied to any particular instruction or piece of evidence so i don't think a reasonable lawyer would necessarily say that all they must be talking about the results from and so we need to clarify again the common ordinary meaning of results from you think in light of courage the jury instruction should be something different and focus on but for that's why when i opened my comments today your honor i said that in that in an appropriate case that it is absolutely in time but on the court in the pardons to figure out what is the best way to draft a jury instruction in this case so there could be a case certainly where it's necessary to go beyond results from i see that a lot of time i'd like to just finish answering the judge's question thank you so i fully acknowledge that the instruction can be and should be adapted to the government asked this court to continue to assume that the jury should have known what results from that is it was a but for test how could they have done that the jury cannot be presumed to do w solicitor general and the a circuit was unable to do in burrage they never have burrage case we have to assume that they would be confused in the same way and that kind of confusion is the reason that an instruction without but for after burrage was ever if what what is more that the the government here does not contest that the evidence of causation in this case was conflicting even if it was a single drug case the court in on direct appeal made very clear that the jury after could have reached the opposite conclusion that was after serving all the evidence in the case so when you put