just wait one second no dispute that there was only one delivery of heroin beginning with mr harden and ending with french not learned september fourth the only question at trial was when that delivery occurred and that was text messages establish that the jewelry occurred some time before five zero nine pm actually that's one way to read the timeline but there's another way to read the timeline and so it's just a jury question you're asking for a ruling as a matter of law that the timeline can only be read in one mind correct day and he also said that he had used almost all of it at that point he wasn't even high at five fifteen and shortly thereafter he said how about you drop me off another one tonight all that leads to establish that the only delivery of heroin expecting another delivery from mr peterson well he seems to be expecting a number of other delivery and then he never receives it he asked mr peterson or some testified that he did make that delivery and that it was in the evening right that's correct but that's evidence problems come in this court why is this insufficient as a matter of law to prove because a shoe is insufficient in this case your honor because there is stipulated to documentary evidence the one hand first says witnesses with credibility issues and testimony that does not directly conflict with that documentary evidence but even if this court finds that the evidence was minimally sufficient as to actual causation it should reverse for a new trial because the jury instruction in this case omitted any one action of reasonable foreseeability or proximate cause in fact the instruction told the jury that the government did not have to prove that mr hard knew or should have known that his distribution of heroin was likely to cause death that the state of the law because the death results enhanced requires proof of proximate cause or reasonable foreseeability w got a couple of questions here one if this record doesn't show a valid waiver of objections to jury instructions what would my second question  is i guess about i'm not sure exactly what you think needs to be foreseeable but why isn't this innocence a form of the kind of liability for consequences that we see in felony murder statutes where you don't have to prove intent to kill you don't have to prove force that you foresaw that somebody was going to be killed in the robbery but you're still held accountable for the consequences correct  see to the first point about whether it would arise in a circumstance not like this case where there was no reasonable strategic purpose not to object to the instruction the faulty instruction the government alleged  foreseeability it was right before counsel it was before the court and there was no purpose for counsel to not at least have the instructor instructions conform to the indictment moreover to the  principals of both president so what is a district judge have to do to get a consensus on instructions size and asking at least twice whether the defense has any objections and there were none well specific this discussion as to the missing foreseeability are you telling us that a district judge to get a valid waiver on instructions has to go through them one by one no your honor but in this case where again there is an allegation in the reasonably foreseeable that's your claim here that causation instruction was erroneous that current i don't want to conflate it with conspiracy doctrine and your argument does so i think you need to keep the two separate  in the law criminal causation well there are several reasons why first in burrage the united states supreme court strongly suggested that the death was also has not requires proximate cause didn't decide that question it did not decide the question squarely rather however if those are  bedrock principles of criminal law and the supreme court made about his expressed statement as to that as you could without actually question if that's a better arc what about felony murder what about be considered to be foreseeable you know in this case dealing with dealing heroin but dealing heroin just saying the fact of dealing heroin alone is sufficient to establish reasonable foreseeability which is essentially impose strict liability which again the u s supreme court has strongly cautioned against doing especially in a statute that has caused nation language yet mr griffiths you have no support though in any other circuit do you for that position because the government's evidence of foreseeability was extremely weak if not insufficient mr blair did not know mr harden he did not know mr is it your theory counsel the government has to prove that the defendant should have foreseen this particular victim would have suffered from a fatal overdose no not this particular victim necessarily however it should present some evidence that death would be likely to result and in fact the government tried to do that in this case through the testimony of randy neves larson when it tried to elicit testimony that she had been warned about this particular batch of heroin that wound up with mr larry but she did not testify no matter what their expectations and said that the warning had come about a previous batch feral and that was not distributed to mr sheppard so that brings me to my point regarding the closing arguments here where the government attempted to fill the gap essentially left by its absence of evidence of proximate cause a fashion by saying that mr hart had in fact warned his needs larsen about the september fourth delivery of heroin when that's not the case in the record she clearly testified that that warning came about a previous that was not delivered to her at the walgreens and the government emphasized that point quite heavily it's closing argument so there is other evidence showing why did this in this case there's a lack of evidence of foreseeability the government presented no evidence of karen's potency or toxicity which according to dr guyse their expert are the two factors necessary to determine whether a overdose is likely to occur and there was other individuals on the same day use the same heroin it's not suffer an overdose and that only a tenth of a gram went to mr shuttler which is a very small amount of heroin according to the testimony of the other witnesses in this case unlike burroughs this is not a mixed nice text messages and then he used a different either morphine or hair or similar morphine metabolife later and overdose on that and in burrage the question is not only mixed toxicity it doesn't only apply when the  deceit has used more than one type of drug the supreme court stated that the government has to prove that the specific drug distributed by the defendant is the but for cause so even if mr shepley used only heroin on september fourth it's the government's evidence w still have to establish that it was the heroin distributed by mr hart but she did not in this case so what's what's the evidence that he and some other source of her well you're older than her and you know you're on to there's evidence excluded about an additional source and that's addressed in the breeze but corrected in terms of evidence before the jury suggesting you knew there was some other source there is and well mr hardy didn't have the burden of proving the existence of other sources all he had to do is establish that there was defend this defendant is the source and there's no evidence of any other source for ect but what more is needed well again in this case we have a situation where there is clear documentary evidence establishing that that was delivered five hours before the scenes death more than five hours before the disease death and the government's own expert said should be very surprised if mr shuttler as he said at five fifteen pm he used all that heroin wasn't even high and then died causation when it said that all the heroin distributed on both september third and september fourth was distributed from mr hard and it was given to mr shepard so and they said specifically what matter what what does it matter what time it took place when in fact the evidence was clear the cow peterson said the heroin he gave mr scott learned september third did not come from larson it in fact came from a different source which goes back to your question judge hamilton evidence of other sources  that there were issues here about whether there were other people who were supplying heroin to these individuals and those people were named however there was clearly reasonable doubt  law well there would have to be some evidence of proximate cause efficient to present it to the jury but whether i'm asking if it should be presented to the cherry at all if proximate cause is a limitation on criminal liability yes it should be presented to the jury that why if it's a question of legal costs because proximate cause is just a policy based determination right that the consequences to remote from the defendant's actions to attribute cup ability to him and how it works in civil law isn't it correct it can it can work as a legal question of whether you know as a policy reason we're going to say that this is too too removed or t i'm not sure whether it would work that way in this case your honor to be frank however it's an important question perhaps it's something that that spring court didn't want to get into and berish which is why it didn't address the question there were other as fraught with all kinds of doctrinal difficulty correct your so let's this quarter for the questions that keeping me up at night that still we are asking that you refer me conviction and life sentence for mr harding because the evidence was sufficient to convict him there was no instructional error the judge's evidentiary rulings were  within the scope of his discretion and the prosecutor's remarks during closing not rise to the level of unfairness required for a reversal on the sufficiency of the evidence question between peterson and she not learn which we consider somewhat ambiguous however as judge sykes noted in her question the jury was entitled to look at the later text message exchanges in the seven o'clock hour and marry those up with the testimony of witnesses who were in that chain of distribution on september fourth and i think you know as you're well aware of naive question is a tenth of a gram of heroin a fatal dose donor i don't know my i'm not certain that an expert in this area my understanding is it's a standard street level dose right  so my general understanding is that people's reactions to even the same heroin can be idiosyncratic and different so that three three people can take the same heroin and not necessarily react in the same way was there evidence on that in this particular trial to those kinds of varying reactions because we do have the other folks who took the same batch we've got brandy swallowing me in the police station did i get that right batch of heroin i don't believe there was expert testimony that would be useful would have been useful to the jury or would be useful to this court appellate review it wasn't a battle of the experts kind of but as to the specific question about quantity and why people see the varying reactions to to the same heroin i don't believe the recent testimony from the medical exam she was she was focused on the results of her stops so it does all come down to realize timeline yes and i would just point out as well that even the five o'clock hour text message exchanges are not unequivocal they threw a reference a future your liberties as i've got something for you bro or something like that implying it's going to be a future delivery and again if not a coven and peterson are to be believed there was and it occurred you know around dusk tween the seven thirty to eight o'clock timeframe relatively specific and consistent with what the medical examiner said about death occurring within several minutes up to some hours   but putting that to one side it doesn't seem to me that the instruction which hued pretty closely to the statutory language could possibly be plainer if we're having element hatfield said is clear about that in two or three different ways the crime of distribution with death resulting in something in this circuit pretty close to strict liability judge posner's opinion in hatfield kate some hypotheticals where or maybe strict liability would be a stretch but we don't have any interesting or unusual facts that and again the post purge decisions i think the tenth circuit one is the or the one the first caller case that looks at the statutory language and it's important to note that congress did not use causation language in this statute didn't say because it says results from and for various reasons explained in that opinion that's more suggestive of strict liability without all the additional honest just briefly just hamilton with respect your question about what needs to be proved as reasonably foreseeable it would be the death resulting not the general risk of death otherwise that would transform this statute into the the user uses the herald and right to use somebody can easily give themselves an overdose intentionally or unintentionally right and yet the law seems to reach those situations doesn't it but yet the law seems to reach those but again in this case we're dealing with statute with specific cause ation language and i would disagree with counsel point regarding the use of causation driving while intoxicated it's up to ten years what has to be foreseen or forseeable well again driving while intoxicated is like a felony murder situation where there is an inherent risk in every event drug law tax that not every sale of heroin or controlled into question a great many criminal statutes if you're correct the proximate cause is always required and in statute that structured this way because many penalties are enhanced if there is a substantial injury c statute poses strict liability or not severely of the penalty should be taken into account so i mean that line of sort i'm troubled by the whole phrase strict liability here the government has to prove intentional distribution beyond a reasonable doubt correct correct so this is a strict liability for the crime this is a variation depending on consequences correct it's a strict liability based on whatever consequences happen and again in birds the court common principle of criminal law that proximate cause is necessary so with respect to the question about whether this would undermine a whole host of criminal law decisions i don't think so because this is a principle that underlies all criminal law when congress that can be very fact it's a common law principle however in this case the failure to present it to the jury would rise to a constitutional error that it would not we're back to