the now chief judge leonard t strand in this case involved a two count indictment involving distribution of heroin and fern l fentanyl and also conspiracy individual after a bench trial which took place the the events occurred on the late evening hours of march second early morning hours of march three two thousand and sixteen the bench trial commenced approximately doubt this thus generated a minimum sentence for mr lewis of twenty years of imprisonment each count at time of sentencing the court did impose a sentence of two hundred fifty two months on each favor the defendant in this case and that i think these will permeate the nature of the arguments that we will be presenting today one the defendant mr lewis did not actually have any actual knowledge that the substance that he was involved in distributing contained the analogue substance for an l sensible there was no evidence offered by the government to prove that th mean drawing the line does between the distributing the substance which was probably presume by my client to be heroin this is what he had been involved in and three other sort of contemporaneous sort of transactions in which there were seized drugs and which were analyzed all of those contained heroin none of them contained fearne elf and all fentanyl or any other sort of control did in fact make a distribution that's a factual decision that even though we have that do novo review with that language of how difficult it is to overcome that we're not here to argue that that's an incorrect determination even though we might have some disagreements factually as to what he did in fact distribute but the court has made its findings and we are and the court is going not this court's not going to reverse of those sort of factual findings you're not here to the region judge the credibility of witnesses things like that that's well known and understood and what what significance is it that he didn't know that it was found i think that goes to the issue of that they were not ruling on that particular issue and this is a case in which we are then seeking to extend burgeon seeking to argue for that sort of proximate cause facial you know that's always been interesting to me because my question's been how do you have a case in which you have a cause and then there remains a proximate cause question because it seems to me that a cause is more remote than  cause in so i don't quite get that once they say that the issues but for causation if you can establish the but for causation one how does proximate cause still remain alive well in this particular case and some of the arguments are part of the argument that we are raising deals with the fact that the drugs that in this case were distributed they were distributed to mr manning the question then becomes did mr manning consume and suffer either the overdose or death no it was subsequently in two individuals who overdosed they still got a redistribution of drugs that same evening distributed was was the cause of that whether it's whether you call it proximate or but for both and we were going to the last somehow there was  for slipped in the the heroin by manning after your client sold but that would be inconsistent with the findings and that was part of the well i've cited all the authority that i'm aware of on this issue and none of it that i have found is favorable to the court however i would note that in some of the cases such as i think it's the mackintosh case of the defendants going to lose that most every time of it does kill somebody and if the causation and requirement of birth burrage is satisfied but in effect the got the government's position which i i can't find a case that's inconsistent with the government's position but the position is that the enhancement statute is a strict liability crime with a life sentence which entails a life sentence and that frankly is kind of t sure only the only case the only case we found that was close imposed burrage is a six circuit decision in which there was in this it was basically assume that if the if the substance so really require the government some time to do this record of required the government to plead a mixture of controlled substance and separate counts and without i don't think there's a published explanation of whether that was required that would suggest in an independent mens rea a requirement but when you don't you don't go through the supreme when the supreme court is deciding many rare cases all the time usually not believe he would have the mens rea that well your argument really has to be there was no finding yes i would say these facts if the writing was required it would have been made i daresay which would which would lead it interesting question what we do it my hypothetical issue is controlling there a new trial or of what is there yeah i mean that thank you may please the court counsel to address the questions that have been raised by the court as far as mens rea the answer is there is no separate mens rea requirement for the penalty a penalty enhancement provision that kicks in once the government has proved a violation of title twenty one eight section eight forty one a one and so in this case there was a proof of the distribution of some controlled substance controlled substance they don't need to know the exact nature of the substance and this court in ramos also it confirmed that so an individual who sells a white powder that they know to have some sort of controlled substance in it they are responsible for and they have sufficient mens rea to have to be convicted of a distribution of that controlled substance at a marijuana marijuana smoking purposes and your supplier othetical in the your indictment that mean the controlled substance was a mixture of marijuana and strick me yes so if f and count to death resulted in that in that hypothetical you know if marijuana is not what caused the death and that is the only controlled substance then that is then that then there would be a failure of proof on the sensing in the answer because the proof of the crime that was committed that being a distribution of a controlled substance specifically marijuana does not then carry through was distributed here contains two different controlled substances one can controlled by virtue of the controlled substances act marijuana schedule one and the other controlled by virtue of the analog act if you're an infant and that's the way mcfadden has  and this court's cases in ramos after after mcfadden have termed the knowledge requirement for that mr lewis was charged with distributing a mixture of substance one particular bag containing both of those and the use of those substances resulted in the serious bodily injury and death and death in this case and permit fadden and per mackintosh there was no additional requirement that the government judge instructed on foreseeability i believe that was actually the faulkner case that came up after mackintosh where judge garvey in the southern district of iowa had in a conspiracy case had instruction on foreseeability and i just wanted to note that there is there's no for requirement here that was a slightly different case because faulkner involved more of a pinkerton liability situation where faulkner was not the individual who directly manufactured or directly distributed the substance that resulted in the death of the user this case is more along the lines of mackintosh actually bright and square with macintosh that the distribution that occurred here was by mr lewis and directly in that he was directly in the chain it was in a coconspirator liability situation so there's there's no question of foreseeability here we're dealing with this defendant's acts his his distributions his sale and then the consequences of that if there are no other questions i mean that i believe this case is is basically a witness credibility case which is not really subject to an appellate reversal here mr mister manning testified that the drugs that he obtained from m lewis he provided to those other individuals so this is i believe pretty straightforward on those facts and the law and the theory of this case in the law as found by the district court here and as well by the district court is is supported in this court's precedent in the supreme court precedent was there some inconsistency in the district court say that there was some evidence that might cast doubt on certainty as to the source of the drugs before then went on to conclude there was  sufficient evidence to prove beyond a reasonable doubt i don't recall specifically that comment it could have been in there but i think it's fair to say that that mr rather the testimony here was that mr manning he testified  heroin and then they were on their way to meet mr lewis to get a larger quantity of heroin and so to the extent there's some evidence that there were some other drugs that would be that there's mr manning had some text messages from the days prior where he drugs at other times but ultimately this case does come down to the fact that mr manning testified and the district court found incredible with all of the other corroborating information that the drugs that mr kelly and mister van amberg used were the same drugs  finding is not really a circumstantial finding it's an inference drawn from the evidence that's been proven that it's the same drugs right in that two is covered by the fact finding judge jury and right i you a couple perhaps random thought but i wanted to follow up on terms of some of the findings of the judge strand in terms of the conspiracy there's really no showing  strand that he presumed that a couple of the smaller transactions where you may have been front to may have been situations where he you know had to gather the money from either him self or others from that but he used the word presume kind of looked up the definition of that i don't think that's a finding beyond a reasonable doubt that are in fact we presume things because we think they are but we're not certain  individuals and there's no evidence in the record as to an agreement between my client and others to distribute firm no and in fact  caused the death of the individual and so when you get down to the analysis of that situation i think you have to look to the fact that they didn't prove that the death and that's why we have action and but not necessarily the element as to causing his son's hand has fallen but on the sensing enhanced meant you'd still be looking at the statute to be knowingly and intentionally distributing a controlled substance that results in death and i'm having a hard time with a leap on the mens rea that all of a sudden we're going to get to the point that it's got to be that you got to know what the substance is isn't it just sufficient if you know it's a controlled substance and that controlled substance causes death i think i think individuals who are facing a twenty year mandatory minimum should be in a position requiring the government to provide well given the percentage of heroin on the streets today that is laced with  the end of the i ten years a district judge i would guess that seventy five percent of the cases i saw were mixture cases i mean you're going to have to show old that the person who's buying these drugs know was that the it well it's not my position to educate the government on how to prove their cases i guess as to what they might ask but i can think of a series of questions that i might potentially ask as a way of helping