exactly may it please the court i'm andrea harris i'm with the federal public defender's office and i'm here on behalf of mr alvarado in this case which was is a distribution resulting in distribution of heroin resulting in death  at the trial mr alvarado submitted a proposed jury instruction to the court that addressed both and act actual causation as well as proximate cause ation the actual causation instruction that  requested related to whether there was an intervening or superseding cause but essentially it was relating to whether there was actual cause actual cause that the distribution resulted in the death  d in our brief we've we've argued about both of the instructions the actual cause instruction as well as the proximate cause instruction with regard to the first the key issue is not whether the district court or the government or even this court believes that there is sufficient evidence to convict mr alvarado the that the issue is really whether the jury was properly instructed regarding the actual causation right and that's the exact reason that the district court did not invent a bench right that and i think the court stated at the time of our charge conference that a loose word on causation here they are content to confuse the jury and if i think if that no no we didn't phrase it exactly that way but i sent it really different things well i think there were whether you call it before you call it the intervening or superseding cause they're the reason we asked for the instruction for some clarification is that there was evidence presented first that there were evidence of other heroin sources and heroin sellers there was evidence that had been presented that the deceased mr thomas had contact with another person after the contact with mr alvarado the last contact with mr alvarado and that this was with ben and a person named ben there is evidence that ben sold heroin there was evidence that ben was also a source of illegal then x so these were the reasons that we wanted the we that we asked for this instruction if there was an intervening or superseding cause which essentially is just a buffer or that the heroin distributed by mr alvarado must be the cause of the death or what resulted in the death as opposed to heroin or drugs he had obtained from some other source and so that was the reason that we had asked for that instruction and then the court refused the instruction saying you know i'm just going to simply track the language of the statute you know to start to try and define it as judge niemeyer said you could lead to confusing the jury we noted our objection at the time that the where the problem really comes in is that the jury twice  asked questions regarding causation both yours both cherry and the first the first jury asked whether death results whether the instruction death resulted from the use of heroin means solely from the use of heroin or that heroin contributes to the death this with ash which is about ninety percent of birch it's the jury was right spot on right and i think in burrage the the jury was explicitly instructed that if th were in contributed to the death that would be enough this is the i mean the holding and in birch the bright green court told by and this is said this is the inverse by not instructing the baby that they couldn't convict if they found that the heroin just simply contributed to the death implicitly the jury was instructed that they could sew the ink the instruction was incomplete the instruction was incomplete and that instruction and by the way you don't have to ask for a correct missed description but if it goes to an element of the offense then it's it's a critical error and and that's what we have here here by not answering the jury's questions related to that element words that's what he said here results would be right but the problem here and i think that the reason that this is different is that result in death is an element of the offense and and and at the time that we were you know debating these instructions we knew that burrage was pending and so at the time that this jury question came out you know the court had already indicated its intent to just instruct based on statutory language and not  but then when when burrage comes out and it clarifies that that's not enough the problem that have here is that we don't know so the jury's left essentially because they're not instructed that contributing is not enough they're left with two basis upon which to that they could convict they could convict if they found that the evidence was sufficient independently sufficient that the heroin distributed by mr alvarado result in the death or they could convict if they felt  that that the heroin contributed to the death and so we don't know based on the record which basis the jury convicted because there was evidence that controverted now in the in the courts we asked for reconsideration  mission after after burrage came out and in the court's opinion that core justified its decision not to send it back for a new trial based on obviously that the jury was instructed on the exact statutory language the district court also said well results from imports for cost out he said it's obvious it's obvious but obviously it's not obvious because it wasn't obvious to the district court for it wasn't obvious to  circuit and then it took the supreme court to explain that the thing i think that i'm just having to as a factual question about the case i guess it seems like in this case was anyone really arguing that the heroin wasn't but for cause it's you know there's an argument about whether heroin was the exclusive cause or whether the xanax and the benadryl also played a contributing role but was anyone arguing this seemed different from birds to me just maybe that perhaps instructions weren't all they should have been but did it make any difference in this case because it didn't really  anyone was arguing that the victim would have die even if he hadn't just the heroin you know i don't think there was any evidence that supported that but i but there wasn't evidence that supported that he would have died just by the heroin alone and i think that's a that's sort of if he understood that the heroin was the but for cause either way right either it was the exclusive cause or in combination with xan necessary and sufficient right there wasn't any evidence there was no evidence presented that he wouldn't have died if he had taken heroin none of that was good work that it was the hair and without the heroin he wouldn't have died that was the but for cause it would have been sufficient under a proper instruction right but under proper instructions or proper truck right but there are a couple problems with that one i think that the court also stated that  testifies that and this is on during the government's case i knew he overdosed on a mixture of xanax and heroin and he had an amazing amount of xanax and i knew he was going to get heroin that day his new thing was to mix them together and that will kill you and he knew this and that was the government s evidence about that doctor and i'm so i think i'm just totally missing something so please set me straight isn't even under that the girlfriend's testimony that heroin is a but for cause right under times and he never had a problem so that's why i'm not i don't concede that the heroin was about four cars or that the evidence is conclusive that the heroin is about for cause because he had used heroin hundreds and hundreds of times he was a regular heavy user  right but but and i think we would be dead in the water if the jury hadn't specifically asked the questions whether contributing to the death was enough because clearly the jury was considering this evidence and the jury had some questions about whether the heroin was the but fo province to decide that and to be properly instructed and well they weren't improperly i mean that's that's you conceded they were properly instructed they were not given the but for explanation right there clearly that's not an error there's no case that is help no but the the failure to clarify created the prejudice here because it didn't it allowed them to believe that they can convict based on the contributing contribute but i guess legionary i don't harp on this any more but i am genuinely trying to wrap my mind around this so it's a legionary and so i understood the question to mean there are tracking the evidence in the case you've got this one witness who says it was just the heroin that's the exclusively you've got another witness who says well and the girlfriend it was the heroin in combination with the other things that's the contributing but even under the contributing theory it's a but for cause so i just don't understand why it madoff case i guess th other case this instruction would have been very prejudicial but i don't understand why there is no theory in which it is a contributing non but for cause but is it but for the heroin he would have died or but for the xanax and the benadryl he would have died dr burroughs testified that they're all central nervous system depressants that have a synergistic effect so was it for the heroin or was it but for the xanax and the benadryl and so that's i think the question and the xanax it's clear was purchased illegally by somebody out of you know from somebody else not from mr alvarado so and although if we were talking about just a sufficiency argument i think we lose because there was evidence that was sufficient to find him guilty under the but for standard but that's not what we're talking about and that's not the standard that we're looking thank you your honor i'm elizabeth wright special assistant u s attorney for the western district of virginia on behalf of the united states may have please the court mr alvarado rates as no legitimate challenge to the jury instructions or the relevant evidentiary ruling in this case iraj held that results from by its ordinary meaning importance both being an independently sufficient cause of death or serious bodily injury and being about for cause of death so we know exactly what the jury here decided and there was no instructional error in the first interim instance the language that the court uses was and remains an improper an appropriate statement of the controlling law there was no obligation to provide the elaboration we really think it is similar to getting into the dangers of elaborating on beyond reasonable doubt and this instruction remained throughout entirely proper in mr alvarado case there are two dispositive points that differentiate this case from situations that could cause a problem under barrage one distinction is legal and the other is factual and after i talk about those i also do want to make a note about the standard of review in case the court does find that there was some error here so on the first distinction in barrage the problem that the supreme court addresses was that the jury was explicitly instructed and that having a drug only as a contributing cause when is was an acceptable basis to convict that meant that the that the jury was explicitly given an incorrect statement of the law and that's what led to the error under barrage in mr alvarado his case the jury was properly instructed in language but that the circuit in the evidence was incorrect your honor based on the plain meaning of results from the supreme court but we didn't know that until the supreme court told us that i think we didn't know that your honor because just reading the statute  results from means but for cause and the supreme court is really clear on this and it's important that they said multiple times that the ordinary meaning of results from imports but for cause they said that  we are by importing the vote for causing exactly what the terms result from mean they say that congress instead of using contributing language oh chose instead to use language again that imports but for  demurrage the department of justice is has not given instruction to the u s attorneys offices around the country as to what kind of jury instruction asked for in one of these cases is that what i'm left to believe the department of justice circuit was imposing that and that's what the court followed in this case and it's important to note that the plain meaning of results from did not change with burrage the government in was arguing that the plan meaning based on policy considerations was unduly restrictive in essence a government position in that case was saying that well that we accepted this is a plain meaning but here is how it should be interpreted be on the context of the statute and the supreme court said no the plain meaning it's a plain meaning we need to look at results from based on how ordinary persons can comprehend it and that's on page ninety one to ninety two and it said that but for causes have ordinary people comprehend it so that's how we know that the jury comprehended it in this case the question how do you account for the questions in this case well i'm first i want to know that there was only one question i think it's really ms no it was repeated but it wasn't answered the first time it was only really wasn't answere why there was no response whatsoever the first time the there was a separate issue that arose with the juror that led to an alternate being called up ok we deeply misleading to say there were repeated questions because the jury didn't i mean everything was called off the jury started again and then they happen to ask the same question that being sort of prior jury had asked but this was not multiple questions there's also no indication whatsoever of any actual confusion by the jury the they proceeded to verdict after they got the sort of non answer they proceeded to verdict within about twenty minutes it was fast and relevant to the standard of review it's also important to note that when that question came in because when the first question came in from the first jury and then when the it is purely speculative it could be one juror just happening to want to understand that better there is no indication here of confusion whatsoever and one of the reasons additionally that that's true your honor is that the arguments are not there other words eleven jurors could have been saying oh could have been wondering oh well we heard some commentary on contributing cause and other things and how does that relate and trying to understand that i mean the point is there is no way to really conclude anything from this single question and in the context of the case there was no ambiguity at all as to what the jury was supposed to decide the government in its arguments was always approaching this as but for cause the defense even in its closing argument said the question you need to determine is whether the heroin caused the death whether the then next cause of death or whether they both caused the death it was the defense was very clear that if you're going to answer that the heroin and cause of the death you're rejecting this other evidence about these causes that's on in the j s p to seven seventeen and seventeen so in any event that would have cured any potential confusion that could have arisen in this case based on the different evidence but we think with the language on the verdict form that clearly was raised in terms of whether jeff results from the heroin there could not have been any confusion here the case here is really different also and we think first the first distinction is that there's there was no legal error in the court's jury instruction the second distinction here is that the facts plainly established both that there heroin was an independently sufficient cause of death and that it was about for p is that right that was an issue or would you just a problem in i mean some other cases that really weren't sure about how to do sort of a sentencing hearing i think that came up in mackay and elsewhere so i think that something that would have to be apprai three i mean they did so so you think it would have to be a new trial to god and i don't know i'm asking the question i'm asking i'm asking counsel i think i would have to be to pray appraised depending on what exactly happened in the court's decision i think that here i mean there was obviously no but i mean there's no real dispute we think about b distribution right at the same time i mean it is something that we just need to think about if it ends up going back down because we still think there's no error here w unnecessarily lesser included it is your honor yeah and so theoretically if you could proceed to sentencing on that well but you would still under i think the courts contract you'd still need a jury determination under the correct legal i mean if you think that on the causation and on yes on the results from element i don't think that our job i would say why would you need i'm sorry why would you need the to do a certain thing on the distribution why would you need  proceed with a new trial my my question i'm sorry i drag this out could you if you chose to that objection proceed to sentencing on the lesser included on the basis of this jury  thought perhaps all of the about i'll try to get to as many as i can your honor the point on waiver i do want to emphasize that the well i guess i'll return to the facts and that brings more relevant right now the testimony of doctor she did testify that without the heroin he doesn't die and the heroin back in does that cause his death yes it does so she was i think very clear that first of all there was absolutely no contribution in her in her view from the lamb and the other drug and also that there was no possibility of death without having the heroin and the way the defense is phrasing the test i think really  what the legal standard is the question under barrage is whether the charged drug is a but for cause of death or serious bodily injury you cannot phrase the test properly in terms of whether well but if you take out what but the other drugs were what happens you have to phrase the test in terms of without this charge drug what would have happened and the supreme court in barrage talked about that and had this is a quote that's pretty important that saying that where a shoot to be who is hit and dies we can say that a actually caused death since but for its conduct b would not have done the same conclusion follows if the predicate act combines with other factors to produce the result so long as the other factors alone would not have done so if so to speak it was the straw that broke the camel's back and then it's argument so if you give poison to someone who is debilitated by multiple diseases it's a bust but for cause of his death even if the disease is played a part in his demise as long as with out the incremental effect of the poison he would have lived so we think it's really important here that the supreme court used that language it referred to whether the drug charge was  for causing the death and all the wording is in terms of this drug it does not matter if these other drugs contributed it only matters if you took away the heroin would you still be alive and that is truly uncontroverted here and d plainly clear on this it's also a major distinction from barraged because the cases that have again cause an issue have that either had the incorrect legal instruction or the facts in the cases have plainly not met that find any error at all in this case the test also from nader and it's important to note that jury verdicts can stand even if and later was dealing with this there was no instruction at all the whole element here the element was plainly presented to the jury and we still think that the instruction on that element was correct the question is whether there's anything that we being undermines confidence in the verdict and under all the facts here with the uncontroverted medical examiners testimony about this and she was the only medical professional in this case anyone with medical training at all you would have reached the same result the nader test doesn't impose as high a standard and really goes out of it as i think judge davis questions were suggesting and in fact goes out of its way to say that it wouldn't be efficient to get rid of verdicts if you can tell exactly where we would have ended up anyway and that there are all sorts of errors in instruction that are known that don't require any correction that aren't ultimately problematic that's why we get into the harmless error review and then here again i think plain to review because when the question came up with the jury question the defense agreed that there was nothing appropriate for the court to say and ms harris sort of lead with this but it's also notable that the instruction that the defense admitted to the court was not a correct instruction it included foreseeability as a requirement which is forbidden by for circuit president it did not include all parts of what raj explained was included in a pla meaning of being either an independently sufficient cause of death or about for cause of the death and it introduced other really in confusing terms it started using phrases that were undefined of contributing causes an intervening causes without saying what those were and without saying what the jury should have done if it did find those so there really wasn't any sort of solution that could possibly constituted an abuse of discretion for the court to reject it proceeded in what was the appropriate response based on fourth circuit law that was binding and remains binding that you need to show both for cause it instructed in the statutory language which is where all the elements and everything else flow from and that was truly we think the appropriate response and would have been the same law even after barrage so there was no error in any manner we think here also no just briefly on the foreseeability all i mean multiple circuits hold that there is no first the ability requirement i just didn't want to touch on that on the confrontation clause issue two just so we've mentioned it the there really was no error at all here in the admission of these statements i think the only issue that the defense raised it at all is whether these were truly against the penal interest of mr thomas at the time he sent said them and a point that i wanted to raise in light of the defendant's reply on this is that mr thomas was making these statements to someone that he was distributing heroin to so it's really incorrect to say that this wasn't something that would subject him to co test i think is fully satisfied on the conference i mean on the hearsay issue and there's no confrontation clause issue as well because these statements were not testimony it was one very quick question and it's a mantic but i'm just trying to through for myself if hypothetically i were to agree that because the only evidence in this case was that the hearing was either independent independently sufficiently caused or by or cause there's not a problem in this case and my thinking about that as well at least in this case the instructions were in fact adequate on this record these instructions were adequate for him or is that more like a harmless error well maybe the instructions were wrong but it's harmless error or maybe you think it just doesn't really matter which would be fair but i think the instructions were correct i think that if the court were to find an error in the instructions then they would proceed to the harmless error review but i think the instructions were correct overall legally and that a couple things i want to respond to first is with regard to the witnesses and the evidence that's presented dr says iraqi was not a fact witness her testimony that her belief that the heroine was the for cause of the death was an opinion it wasn't a fact and it's an opinion that the jury was entitled to give whatever weight they wanted to give to it and i think the fact that they were struggling with what weight to give to that opinion is evident in the question about whether contributing to the death was enough in light of monica seana sees testimony in light of dr burroughs testimony which can with conflicted to a large extent with dr doctor says he's testimony and so i think it's important to keep that in mind the jury was instructed that they were entitled that her her testimony was an opinion and that they were entitled to give that what weight they wanted to give to it and that's why it's critical that then then they're not given well the initial instruction tract the statutory language and was correct as far as they did that the error is in not correcting their misconception and when it's clear that they're confused about what that means with regard to waiver this issue is not waived we agreed that the court the court agreed with the court's decision not to instruct further when the jury came out with those questions but that was in the context of the fact that we had object we had asked for specific instructions on causation actual and proximate cause ation initially and the court had  stated its intent to distract the language and we all were very well aware of birds being pending in the supreme court at that time and we were very well aware that that instruction there was whether contributing to the death is enough and so you you know obviously the government's answer to that question by the jury would have been yes in light of that eight circuit in the district court in burrage yes contributing is enough if that results and of course our answer would have been no contributing spot enough and so that was the dilemma that was left to the court at that time well what would the answer be and so that in light of i guess on the plus side right there was some chance of the jury doesn't have to be the exclusive i mean if it's very clear that i can think of all kinds of reasons why the defense wouldn't reject it right maybe the jury's going to think it has to be the exclusive cause there's at least some evidence that it wasn't the cause so that could have been a confusion could have who knew whose favor the confusion would work well and but that's where we are now with the confusion we don't know  what basis the jury made their decision with regard to the instruction on foreseeability and obviously we didn't have very much time to get into that second issue i would argue that this issue is not resolved by patterson because patterson's distinguishable patterson was decided in one thousand nine hundred four and it related to the death results language as a sentencing enhanced meant as opposed to an element of the offense which of course it is now and i think there's a different standard in a different way that that those two things are given whether there are elements versus sentencing enhanced in sacks of critical distinguishing difference between patterson and which is why i think that paterson isn't necessarily precluding this court from considering the issue as i was preparing for the arguments today yesterday i went back that the instruction that we asked for was essentially the instruction that was with that with a slight the actual cause but the foreseeability part of the instruction that we proposed was the instruction that the government asked for in the case of u s b make hay which was the tenth circuit case out of utah that foreseeability instruction was asked for by the government in fact as i was reading through the materials yesterday i looked back and i learned that the government had filed us a memorandum of law in support of their foreseeability instruction and they cited a number of results cases other federal statutes that  violation and there's a sentencing unhandsome and if it was the deprivation of rights or results in death and in that case the fourth circuit how the death must foreseeable a naturally result from the rights violating conduct so i do think that there is some precedent with this same we could find error here with respect to the twenty year manda meant mandatory minimum but theoretically the case could go back proceed to sentencing on the lesser included