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.).