briefly touch on the procedural history of this case to jog the court's memory on that because it bears pretty directly on the issues that were here for today so mr byrd was charged with a number of counts and he pled to a couple and and a couple went to trial but he was ultimately convicted of delivering a controlled substance that resulted in a and his appeal seemingly seemed to be over at that point however a case which actually ended its way through the circuit the united states burrage that case went up to the supreme court and the supreme court determined that the death results and here at smith that that mr harrington was subject to  was required an additional step and that the government had to show that the controlled substance was not just a contributing factor but deep but for cause of the debt  so mr harrington then filed a petition for rate rid of paper yes corpus in the eastern district of kentucky where he was rated that petition was denied and then it went up to the th circuit court of based in part on an agreement stipulation that had previously been entered and mr harrington's co defendants case mr faulkner and so the court vacated  a motion to dismiss based on double jeopardy grounds and so i'd like to say what this case is and that's st of all this isn't a case like davies that this court recently decided it's not a type case where the supreme court determines that there's an additional element that that needs to be proven and the government is given a chance to prove that additional element what makes this case different from that line of cases of which there are many is that the parties entered into a stipulation in the district court in which the government acknowledged that even under the high standard that it would not have been able to meet its burden of proof and that is a very unique the stipulation stated that talk to her fockers trial there was no proof the hair with the conspiracy distributed was the but for cause of the victim stuff the evidence presented via the autopsy showed the victim died from ethanol and hair with intoxication and then it states further in the stipulation that there was no evidence presented at the trial to show that the victim's use of the herion heroin distributed by the conspiracy have those words and it doesn't read order does not but the stipulation of the parties that was attached to the government's response on which the agreed to ask you before the other question was what we want i look at the holding that ins the case of david it's very well written and says we are reviewing court determines that the evidence presented at trial  davies is distinguishable from this big this case because it's not just it's not just a change in the law so if this was simply a where the government had basically a higher birth and i think that the government would agree that date they do now in order to show the death results they have to show that it was the sole factor for not contributing so they have to they have to work a little bit harder now and the government's argument is essentially well it's only fair that you give us a chance to put forth the evidence that we could in our position is that the only way that you're going to be able to supply that evidence is if you somehow change the facts of the case and in this case it's not like the  government in iraq case simply has to prove forth additional evidence that the defendant knew that he was a convicted felon and this case the government's going to have to even under the of this case the government is not going to meet its burden of proof because it's not going to be able to change the fact that the death was caused by a combination of ethanol and er so that that's that's that really goes to the issue here is if the government isn't going to be able to muster the evidence on re trial then he should it be you try i'm just saying that based on the record that that we have in the testimony from dr charles key i think is the way that his name is pronounced that that would not be able to meet that  about that and so if you were asked to even answer yes it was absolutely essential to his death well st of all i i respectfully disagree that there could be multiple but for causes because logically one there could really only be one but for cause because if you remove that then it wouldn't be but for but with respect to the facts here they actually in the examination of the medical examiner the parties actually try to try to get into that both during direct examination and cross examination and basically the doctor said look i can't tell you which thing did what i'm just telling you that the combination of these two substances is what cause so i don't know if that answers your question but i don't think that it's a matter of simply asking the doctor the right question the nd time around well i don't i don't want to eat  that the took the victim could have consumed twice as much of the controlled substance that was in his system and it would still be at a therapeutic dose so under those under those facts i don't see how the government is going to be able to prove fat a therapeutic dose of heroin would be the but for cause of the death but the fact that the government might not carry the day in the end doesn't necessarily mean that there was a double jeopardy violation doesn't that's why we're here we're here on interlocutory appeal on the double jeopardy question not ultimately will the government when i understand your honor and and the overarching point that i that i'm trying to make is that this is it this isn't a case where there's a piece of evidence missing that the government can easily supply at a new trial because that evidence could have been a deuced at the original trial and it wasn't and that the reason that it wasn't  because the facts do not bear that out we don't know that i mean it may have been that it wasn't used because it wasn't required at the time or i see that my time is up and i'd like to reserve my remaining is making much more of the underlying orders than they are they are not a prediction or a decision about the future they are a decision when read in context  properly held that mr harrington was convicted under this court's macintosh standard which by the way was prosecuted by my office that a contributing cause was all that was needed in the resulting in death and houses birds came out after procedure long after mr harrington was convicted and we agreed after unfortunately mr faulkner scase was resolved in a manner we thought was a mistake but we agreed to be fair to mr harrington and allow is matter to come back to district court so that we could try him under the proper standard there is no decision that mr newman has cited that provides for what he's asking for which is an underlying decision that predicts the future of what the government can do at a trial and not only that he is wrong if we go to trial there is other evidence that the government could deduce that would much more strongly show that mr van ho died and the but for cause of his death was the ingestion of heroin we did not call a toxicologist we did not need to call a toxicologist at that trial not toxicologist and he is not going to change his opinion that this was a mixed drug intoxication because in fact it was a mixed drug intoxication ethanol and heroin had  able or or required to present evidence of the but for cause we we did and we would have and the last thing i want to point out is that mr van host was found after he ingested heroin slumped over on his couch with his thumb near the injections of the heroin and a heroin syringe in front of him he did not ingest any alcohol there's no evidence that he was capable of ingesting alcohol after he ingested this heroin the heroin was the but for cause i appreciate mr newman fighting for mr harrington but when this matter goes back to the district court as it should and the government has an opportunity to show that heroin was the but for cause of death mr harrington will cases jeopardy does not attach when there was an intervening change in the law and there was no there would be no double jeopardy here if mr perelman arrington is required to defend the charge and the government's was that an agreement but different u s attorney's office is that held out her i wish i could tell you how it occurred but it occurred without my knowledge or without the knowledge of the district court in iowa there was some consultation with a lawyer in des moines but i was not included in any of those discussions and that lawyer was not familiar with the underlying facts of the case and of course that related to would stand and the resulting in death was vacated we probably could have had the option back then to retry mr faulkner but he got a thirty year sentence and the government was satisfied with that judge he would do and i think that's something we're going to have to discuss with the district court i've made it clear that if we have to retry the conspiracy underlying distribution and we have to retry the distribution of the heroin we we were prepared to do that it seems a little unnecessary improper and probably not even right to retry him for distribution involving cocaine basins nothing about their age had anything to do with that so it's almost like we have an underlying conviction for conspiracy to distribute cocaine base that i don't think we need to revisit but i do think we need to revisit the sentence for that offense because it's tied to the other drug a passage from davies that states that other circuits considering this issue agree that were reviewing court determines that the evidence presented at trial has been rendered insufficient only by a post change post trial change in the law double jeopardy concerns do not preclude the government from retrying the defendant so this case is different because it's not rendered insufficient only by opposed trial change in the law the defendant's convictions and sentence were vacated as a result of the government's stipulation that the evidence at trial would be insufficient so this wasn't a situation where the parties  the point that i'm trying the only stipulation is only in light of verbiage we did not write that certainly the government's reading of it are our reading of it is different  but that's the government's position what's your reading the may would make sense well our reading is that the the evidence as if you look at the going back your original stipulation which i read earlier if the government's maintaining that there was no evidence presented at the trial to show that the victim's use of the air wing distributed by the conspiracy was sufficient to cause his death and that stipulation was based on the trial evidence showing the same then that would be insufficient  under under the standard and i see that my time is up so i take the court very much for the opportunity to present moral argument and we would ask court to respectfully