Court affirms district court's "but for" instruction in case involving distribution of heroin resulting in death

United States v. Moya, 2021 WL 3163956 (10th Cir. July 27, 2021) (NM): Moya was convicted of distributing heroin that resulted in someone’s death. The court sentenced him to life in prison. On appeal he argued the district court’s instructions to the jury on the ‘resulting in death’ element were incorrect. He also argued there was insufficient evidence to support the jury’s guilty verdict on that charge. The panel was unpersuaded by either argument. Moya’s requested instruction on the ‘resulting in death’ element required the jury to find that “but for Cameron Weiss’ ingesting the heroin distributed by Moya, he would not have died.” Moya’s instruction also expected the jury to be convinced that Weiss’ use of the heroin was sufficient by itself to cause his death. His instruction explained that an act is a “but for” cause of an event if that event would not have happened without that act. The district court used the government’s proposed instruction instead. That instruction told the jury that it had to find that the death resulted from the use of the heroin. It also said that there was no requirement that Weiss’s death from using the heroin was a reasonably foreseeable event. The ‘resulting in death’ element is satisfied if the government proves that but for Weiss’s ingesting heroin he would not have died. The panel liked this instruction also because it “complied with the Supreme Court’s Burrage decision.” According to the panel, in Burrage the Court held the offense has two principle elements: (1) knowing or intentional distribution of heroin; and (2) death caused by or resulting from the use of that drug. 571 U.S. at 210. Burrage made clear the heroin must be the but for cause of the user’s death, it is not enough that it just contributes to his demise. Id. at 206. The district court’s instructions included these two elements. It also clarified that the government was required to prove ‘but for’ causation. Thus, the court’s instruction was correct. Regarding the sufficiency of the evidence, Moya contended that the government never adequately proved how the heroin Weiss injected sometime between 2300 hours and midnight could have killed him hours later. The panel said there was ample evidence to prove the heroin with which Weiss injected himself three times is what killed him. The government’s two experts both testified that but-for Weiss’ injecting the heroin Moya sold to his Weiss’ friend, Weiss would not have died. Their opinions were based on the autopsy findings, the circumstances surrounding the death and the toxicology report. Although Weiss had cocaine in his system, these experts were confident it did not play a role in his death. Further, one expert explained that heroin can continue to act on a user’s body for several hours after injection. Once heroin converts to morphine, the morphine’s depressive effects on the central nervous system can last well beyond an hour. That testimony, in conjunction with that of Weiss’ fellow addict that sometimes the effects of heroin are delayed, was sufficient for the jury to conclude beyond a reasonable doubt that Moya’s heroin caused Weiss’ death. (You know, as opposed to Weiss bearing some responsibility for his own death when he knowingly decided to inject himself with heroin, a substance he, as an addict, knew could kill him. Just saying.).

Officer's "take-down" lights did not make officer's encounter with parked car a seizure

United States v. Tafuna, 2021 WL 3164039 (10th Cir. July 27, 2021) (UT): The panel held that a police officer had not unconstitutionally seized Tafuna before he found a firearm inside a car in which Tafuna was a passenger. Tafuna, his friend and two others were chatting in a car parked in the corner of a large apartment complex’s lot. Tafuna was in front passenger seat, his friend, the owner of the car, was in the driver’s seat and two others were in the back. It was around 1:00 a.m. An officer pulled up to the car with the front of his marked car pointed toward the driver’s door. He had the “takedown lights” on which shine brightly across the top of the car to illuminate the area in front of it. The officer got out of his car, walked to the driver’s side door and asked the driver and the others what they were doing. He also asked for their names and birth dates. While looking into the car he saw an open beer can in the center console next to Tafuna. The four told the officer they were “just hanging out and talking.” Tafuna gave his name and added that he was on parole and had a knife on him. The officer said he was going to run their names and he walked back to his car. This, led to that, and Tafuna was told to get out of the car. The officer patted him down and seized his knife. Then he searched the car and found a gun under the passenger seat. Tafuna admitted it was his. He was charged with being a felon in possession of a firearm. On appeal Tafuna argued the gun and his statement were the ill-gotten gains of the officer’s unfounded seizure of him. The panel disagreed. It said the officer’s interaction with Tafuna was consensual. When the officer parked his car as he did, a reasonable person would have believed he was free to ignore the officer and continue on with his business. (One wonders how that would have played out if the ‘reasonable person’ behind the wheel decided to drive off.) The officer had not driven up “aggressively” nor did he have his siren and emergency lights on. The way he parked still allowed the driver to drive away and did not impede Tafuna’s movement. The panel also said the takedown lights alone did not make the encounter a seizure. It is not “inherently coercive” for an officer to use those lights. They are necessary for an officer to “safely visit parked vehicles at night.” Additionally, the officer’s conduct outside the car did not turn the encounter into a detention. He walked up to the car and asked the occupants for their names and birth dates. It is not improper for an officer to “ask a few questions” and examine an individual’s identification without having any basis for suspecting criminal activity. Here, the officer did not say or imply that the four had to comply with his request. He delivered his request calmly, without raising his voice. Even though he did not tell Tafuna he had the right to terminate the encounter, that is just one factor in the Fourth Amendment analysis. All the other pertinent factors demonstrate this was a consensual encounter which Tafuna had a right, if he chose, to end. By the time the officer ordered Tafuna out of the car he knew he was on parole and under its terms he was not allowed to possess alcohol or weapons. He had cause then to detain Tafuna and search the car.

Kansas reckless aggravated assault not a crime of violence

United States v. Ash, --- F.4th ---, 2021 WL 3400674 (August 4, 2021): Defendant Dustin Ash pled guilty to two counts of felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). In United States v. Ash, 917 F.3d 1238 (10th Cir. 2019), the Court held that Ash's prior Missouri conviction for second-degree robbery and Kansas conviction for reckless aggravated battery qualified as “crimes of violence” under U.S.S.G. § 4B1.2(a). See Mo. Rev. Stat. § 569.030; Kan. Stat. Ann. § 21-3414(a)(2)(B) (2010). Ash filed a petition for a writ of certiorari, seeking review of “whether reckless crimes, like Mr. Ash's Kansas reckless aggravated battery conviction, qualify as crimes of violence under USSG § 4B1.2.” On June 21, 2021, the Supreme Court granted the petition, vacated the judgment, and remanded for further consideration in light of Borden v. United States, 141 S. Ct. 1817 (2021). The Court concluded there was “no meaningful basis” to distinguish Borden regarding the reckless aggravated battery issue and said “Borden definitively foreclosed counting Kansas reckless aggravated assault as a crime of violence.” However, because “Borden only addressed offenses with a minimum mens rea of recklessness” the Court did not reconsider its prior holding that “Missouri second-degree robbery is a crime of violence because it requires the perpetrator to overcome victim resistance.”