US v. Jean Alvarado
Filing
PUBLISHED AUTHORED OPINION filed. Originating case number: 5:12-cr-00030-MFU-1. [999768822]. [14-4338]
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4338
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JEAN PAUL ALVARADO,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg.
Michael F. Urbanski,
District Judge. (5:12-cr-00030-MFU-1)
Argued:
October 29, 2015
Decided:
March 7, 2016
Before NIEMEYER and HARRIS, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by published opinion.
Judge Niemeyer wrote the
opinion, in which Judge Harris joined. Senior Judge Davis wrote
a separate opinion concurring in part and dissenting in part.
ARGUED:
Andrea Lantz Harris, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Charlottesville, Virginia, for Appellant.
Elizabeth
G. Wright, OFFICE OF THE UNITED STATES ATTORNEY, Harrisonburg,
Virginia, for Appellee.
ON BRIEF: Larry W. Shelton, Federal
Public Defender, Christine Madeleine Lee, Research and Writing
Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Roanoke,
Virginia, for Appellant.
Anthony P. Giorno, Acting United
States Attorney, Roanoke, Virginia, Jean B. Hudson, Assistant
United States Attorney, Franklin Sacha, Appellate Intern, OFFICE
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OF THE UNITED STATES ATTORNEY, Charlottesville, Virginia, for
Appellee.
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NIEMEYER, Circuit Judge:
A
jury
convicted
Jean
Paul
Alvarado
of
knowingly
and
intentionally distributing heroin to Eric Thomas on March 29,
2011, with Thomas’ death resulting from the use of the heroin so
distributed,
in
841(b)(1)(C).
violation
The
district
of
21
court
U.S.C.
§§
sentenced
841(a)(1)
Alvarado
to
and
the
mandatory minimum sentence of 20 years’ imprisonment.
On appeal, Alvarado contends that the district court erred
(1) in failing to clarify for the jury that the results-in-death
element meant that the jury could not convict him of the charged
offense if heroin was only a contributing cause of death; (2) in
failing to instruct the jury that Alvarado must have “reasonably
foreseen” that death could result; and (3) in admitting hearsay
testimony that Thomas said he purchased heroin from “Fat Boy,”
meaning Alvarado, in violation of the hearsay rule and the Sixth
Amendment’s Confrontation Clause.
We affirm.
First, we conclude that, because there was no
evidence in the record that Thomas could have died without the
heroin, the jury’s verdict was necessarily consistent with the
Supreme Court’s requirement of but-for causation.
v. United States, 134 S. Ct. 881, 887-88 (2014).
See Burrage
As a result,
the district court’s decision not to elaborate on the meaning of
the statutory results-in-death language did not amount to an
abuse of discretion, let alone plain error, in light of the
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court’s legitimate concerns about confusing the jury.
Second,
we conclude that our decision in United States v. Patterson, 38
F.3d 139 (4th Cir. 1994), forecloses Alvarado’s argument that
the
district
court
foreseeability
district
of
court
should
have
death.
did
not
And
instructed
finally,
commit
we
reversible
the
jury
error
in
the
that
conclude
on
the
admitting
hearsay testimony that Thomas said he purchased heroin from “Fat
Boy”
because
hearsay
(1)
even
exception,
its
if
the
hearsay
admission
did
was
not
fall
harmless;
and
under
(2)
a
the
hearsay was not “testimonial” and therefore did not implicate
Alvarado’s Sixth Amendment right of confrontation.
I
In response to custodial police questioning on March 30,
2011, Alvarado admitted that, on the previous day, March 29, he
had sold five bags of heroin to Thomas.
Text messages between
Alvarado and Thomas indicated that the sale occurred during the
late
morning
hours
in
Harrisonburg, Virginia.
the
bathroom
of
a
grocery
store
in
Within hours of that transaction, when
Thomas’ fiancée, Monica Shaughnessy, returned to the apartment
in
which
she
and
Thomas
slumped over in a chair.
were
living,
she
discovered
Thomas
As she testified at trial, “As soon as
I opened the door, I knew what was going on. . . .
had overdosed on a mixture of Xanax and heroin.
4
I knew he
He had an
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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.”
When she touched Thomas, she found
that “[h]e was freezing.”
She said she had “[n]ever felt a
human cold like that.”
When Shaughnessy was unable to revive Thomas with CPR, she
called 911, a call that was received by the dispatcher at 3:13
p.m.
Emergency responders could not resuscitate Thomas, and at
4:07 p.m., he was pronounced dead at a local hospital.
When
investigators arrived at Thomas’ apartment within an hour of the
emergency 911 call, they observed an array of drug paraphernalia
around where Thomas had been sitting, including needles, needle
caps, and drug packaging materials.
They also discovered a cell
phone, which led them to Alvarado, who was arrested the next
day.
A
grand
jury
indicted
Alvarado
for
heroin
distribution
resulting in death, in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(C).
Prior
exclude
to
trial,
evidence
of
Alvarado
filed
statements
a
made
motion
by
in
Thomas,
limine
to
including
statements by which Thomas told friends that he chiefly bought
heroin
from
Alvarado.
a
drug
dealer
named
“Fat
Boy,”
referring
to
The district court deferred resolution of the motion
until trial and at that time admitted the statements.
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At trial, a former DEA special agent, who had investigated
Thomas’ death, testified that Thomas’ and Alvarado’s cell phone
records revealed that Thomas had made contact with Alvarado and
a man named Luis Blass, another drug dealer, in the days and
weeks before his death.
The investigator testified that Thomas’
last contact with Blass occurred on March 24, 2011 -- five days
before
Thomas’
death.
Thomas
communicated
with
Alvarado,
however, with text messages on March 26, 27, 28, and 29.
In two
text messages, one on March 27 and one on March 29 (at 10:40
a.m.),
Thomas
wrote
that
he
wanted
a
“b”
from
Alvarado
(referring to a “bundle” of heroin bags wrapped together).
In
further messages on March 29, Thomas and Alvarado arranged plans
to meet in the bathroom of a grocery store, and, in the final
text, Thomas confirmed to Alvarado that he had seen him and was
walking into the bathroom.
Thomas’ fiancée Shaughnessy testified that Thomas had begun
using heroin in the summer of 2009 and that he had progressed to
daily use by early 2010.
She stated that Thomas used his entire
daily purchase of heroin, usually a bundle of five bags and
sometimes
more,
“[p]retty
consummating the purchase.
much
within
an
hour
span”
of
While Thomas would often share some
heroin with Shaughnessy, he would consume the remainder almost
immediately.
She also testified that, on the day of his death,
Thomas had driven her to work in the morning and had indicated
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to her that he intended to buy heroin soon thereafter before
going to play golf.
“[H]e had to go get heroin because he
wasn’t going to be able to [play golf] without that.”
She
stated that she knew that Thomas purchased heroin from a dealer
named “Fat Boy,” because he said so and because she often went
with Thomas (about once a week) when he purchased heroin from
“Fat Boy,” referring to Alvarado.
Shaughnessy also said that
Alvarado sold Thomas heroin in white-colored bags.
Josh Melewski, one of Thomas’ best friends, also testified
that Thomas did not stockpile heroin, but would instead use it
almost
immediately
suppliers
over
the
obtained
heroin
in
after
purchasing
years,
2009
it.
Melewski
from
a
Recounting
man
said
that
named
Thomas’
Thomas
Miguel
first
Rodriguez.
After Rodriguez, he purchased heroin from a man named Luis, who
sold Thomas heroin in square-shaped, blue-colored bags that had
a stamp on them.
2010,
Thomas
Melewski also testified that, beginning in
started
purchasing
referred to as “Fat Boy.”
from
a
dealer
that
Thomas
Melewski stated that “Fat Boy” sold
heroin in “[p]lain bags with no stamp.”
On
the
day
after
Thomas’
death,
Melewski
met
with
Shaughnessy at a hotel, where Shaughnessy took Melewski into a
bathroom and showed him bags of heroin she had purportedly taken
from their apartment on the day of the overdose.
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Melewski said
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that the bags that Shaughnessy produced “were the rectangle,
clear, wax bags.”
A
forensic
Forensic
toxicologist
Science,
Dr.
David
with
the
Burrows,
Virginia
testified
Department
that
a
of
drug
screen of Thomas’ blood and urine revealed the presence of a
high concentration of morphine, which, he explained, was the
metabolized form of heroin.
The drug screen also revealed a
“therapeutic level” of Xanax -- i.e., an amount that a physician
would recommend to treat a specific condition -- and an amount
of Benadryl that was “below the associated toxic level.”
Dr.
Burrows acknowledged that Benadryl could “aggravate” the effects
of
heroin
and
that
the
combination
of
heroin,
Xanax could have “synergistic effects.”
Benadryl,
and
He did not, however,
give an opinion on the role that each of the drugs played in
Thomas’ death.
Virginia’s
Assistant
Chief
Medical
Examiner,
Dr.
Gayle
Suzuki, performed the autopsy on Thomas, and, at trial, she gave
her opinion as to the cause of death.
died of “heroin intoxication.”
She concluded that Thomas
While Dr. Suzuki acknowledged
that Thomas also had Xanax and Benadryl in his system at the
time of his death, as found by Dr. Burrows, she testified that
neither “contributed to” Thomas’ death.
“without the heroin, [Thomas] doesn’t die.”
8
She explained that,
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After closing arguments, the district court instructed the
jury:
If you find the government has proved beyond a
reasonable doubt that the defendant knowingly or
intentionally distributed a mixture or substance
containing a detectable amount of heroin on or about
March 29, 2011, you must then determine whether the
government has proved beyond a reasonable doubt that
death resulted from the use of such substance.
(Emphasis added).
After retiring to deliberate, the jury sent a
question to the district judge asking whether the phrase “death
resulted from the use of the heroin” meant “solely from the use
of
the
death.”
heroin
or
that
the
heroin
contributed
to
[Thomas’]
After the district court asked for advice from counsel
about how to respond, counsel for both parties agreed not to
provide any clarifying instruction:
[Assistant U.S. Attorney]:
Your Honor, we’re of the
opinion, and I believe I’ve actually discussed it with
defense counsel and for once in the last three days,
we’re of the same opinion, that it is a bad idea to
provide any additional information.
*
*
*
Our suggestion is we just say, I’m sorry, you’ve got
to read the letter of the instructions and interpret
it the way that you can, as best as you can.
*
*
*
[Counsel for Alvarado]:
I don’t think you can
instruct them further on that.
I’m not quite sure
what you would instruct them anyway.
The court agreed, noting that “elaborating on a term often makes
it less, rather than more, clear. . . .
9
It is on this ground
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that some courts, including our own, tell district judges not to
try to explain to a jury the meaning of beyond a reasonable
doubt.
Probably the same is true of results from.”
After
the
district
court
discharged
a
juror
for
an
unrelated reason and empaneled an alternate, the reconstituted
jury submitted essentially the same question:
The jury would like clarification on . . . the section
that says “death resulted from the use of the heroin.”
Should that be interpreted as meaning death resulted
“exclusively”
from
the
heroin
or
the
heroin
contributed to the death?
With the agreement of counsel, the court responded:
Ladies and gentlemen, the Court has received two
written questions from you . . . at 11:25 this
morning.
The first question seeks clarification of
the, quote, death resulted from the use of the heroin,
unquote, language.
My instruction on the law on this issue is set forth
on page 25 of the jury instructions and states as
follows:
[Court reads the original instruction given
to the jury].
You are to consider this instruction, along with all
of the other instructions in this case, in reaching
your verdict.
The reconstituted jury retired to deliberate and, within 30
minutes, returned a guilty verdict, making two findings: (1)
that Alvarado knowingly and intentionally distributed heroin to
Thomas on March 29, 2011, and (2) that death resulted from the
use of the heroin so distributed.
The
district
court
sentenced
Alvarado
to
imprisonment and a 3-year term of supervised release.
10
20
years’
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On appeal, Alvarado requests a new trial, arguing that (1)
the district court should have clarified the “death resulted
from” phrase in its jury instructions; (2) the district court
should have instructed the jury on the foreseeability of death
resulting from Alvarado’s distribution of heroin; and (3) the
testimony that Thomas said he purchased heroin from “Fat Boy”
constituted inadmissible hearsay and violated Alvarado’s right
to confrontation under the Sixth Amendment.
II
Alvarado
contends
first
that,
in
light
of
the
Supreme
Court’s decision in Burrage, the district court erred in failing
to clarify for the jury the meaning of the “death results from”
statutory enhancement element of the offense.
See 21 U.S.C.
§ 841(b)(1)(C) (enhancing the sentence for drug distribution “if
death . . . results from the use of such substance”); Burrage,
134
S. Ct.
increase[s]
at
the
887
(“Because
minimum
and
the
‘death
maximum
results’
sentences
to
enhancement
which
[the
defendant is] exposed, it is an element that must be submitted
to the jury and found beyond a reasonable doubt”).
He argues
that “the jury clearly thought the court’s instruction might
permit
it
to
convict
if
it
found
that
heroin
was
a
mere
contributing cause, because it asked about it, twice, receiving
no answer either time,” and he notes that “Burrage states that
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on
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contributing
cause
theory
is
reversible
error.”
The government contends that the district court did not
commit any error when responding to the jury because the court
accurately stated the controlling law by reciting the specific
language
of
§ 841(b)(1)(C).
It
maintains
that,
because
the
Burrage Court concluded that the phrase “death results from”
carries
its
causation,
further
ordinary,
the
explain
commonly
district
the
understood
court
meaning
appropriately
phrase.
In
of
decided
addition,
the
but-for
not
to
government
contends that Alvarado waived this argument by not only failing
to object to the court’s response to the jury’s question, but
indeed by agreeing that the court should not attempt to clarify
the phrase “death results from” with anything other than the
straightforward
statutory
language
because
of
the
potential
confusion in attempting to define the phrase.
We begin by noting, as clarified at oral argument, that
Alvarado does not contend that the instruction that the district
court gave was erroneous.
Rather, the question presented is
whether the court needed to explain further the statutory phrase
“results
from.”
Ordinarily,
we
review
the
district
court’s
decision not to give a further clarifying instruction for abuse
of discretion.
(4th Cir. 2007).
See United States v. Foster, 507 F.3d 233, 244
And when, as in this case, a party fails to
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object to an instruction or the failure to give an instruction,
we review for “plain error.”
See Fed. R. Crim. P. 30(d); id.
52(b).
As a general matter, a district court has an obligation to
give
instructions
controlling law.”
Cir.
1990).
to
the
jury
that
“fairly
state[]
the
United States v. Cobb, 905 F.2d 784, 789 (4th
Similarly,
when
the
jury
asks
a
clarifying
question, the “court’s duty is simply to respond to the jury’s
apparent
source
of
creating
confusion
prejudice.”
fairly
and
507
F.3d
Foster,
accurately
at
244
without
(internal
quotation marks and citation omitted).
It is significant that, after the court received the jury’s
inquiry to clarify “results from” and told the jury to rely on
the
instructions
as
given,
leaving
it
to
apply
the
ordinary
meaning of “results from,” Alvarado’s counsel did not complain
that the court’s response was unfair or inaccurate.
To the
contrary,
further
she
explicitly
shared
the
view
“clarification” might lead to confusion.
now
argues,
relying
on
Burrage,
that
that
any
Nonetheless, Alvarado
the
district
court’s
failure to clarify “results from” allowed the jury to convict
him even if heroin was only a contributing cause of Thomas’
death, a more lenient standard than but-for causation.
But, in
the context of the record in this case, Burrage does not help
Alvarado.
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The
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Burrage
Court
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held
that
“results
from”
in
§ 841(b)(1)(C) invokes the “ordinary, accepted meaning” of the
phrase.
134
S.
Ct.
at
891.
And
the
ordinary
meaning
of
“results from” is but-for causation -- i.e., that death would
not have occurred in the absence of heroin.
Id. at 888.
Or, as
the Court explained, a drug qualifies as a but-for cause of
death “if, so to speak, it was the straw that broke the camel’s
back.”
Id.
Thus,
a
drug
that
plays
a
“nonessential
contributing role” does not suffice to apply the § 841(b)(1)(C)
penalty enhancement.
See id.
The Court further noted that
“results from” was employed in § 841(b)(1)(C) in a way similar
to other phrases of but-for causation, such as “because of,”
“based on,” and “by reason of.”
Id. at 888-89.
In light of Burrage and in the context of this case, we do
not find that
alone
the
committed
district
plain
court
error,
clarification of “results from.”
abused
in
its
refusing
discretion,
to
attempt
let
a
There was no evidence in this
case that would allow a jury to find that heroin was only a
nonessential contributing cause of Thomas’ death.
Cf. Burrage,
134 S. Ct. at 890 (“We need not accept or reject the special
rule
developed
for
[cases
where
multiple
sufficient
causes
independently, but concurrently, produce a result], since there
was
no
evidence
here
that
[the
victim’s]
heroin
independently sufficient cause of his death”).
14
use
was
an
As Dr. Suzuki,
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the only person who testified on causation, stated, “it’s the
heroin in [Thomas’] blood . . . that caused his death,” and
“without
the
explained
heroin,
further
[Thomas]
that
neither
“contributed to” Thomas’ death.
doesn’t
the
die.”
Xanax
nor
Indeed,
the
she
Benadryl
Moreover, no party suggested
that, even without the heroin, Thomas would have died.
The only
evidence presented was that, but for the heroin, death would not
have
resulted.
As
such,
any
hypothesis
that
the
jury
was
allowed to convict Alvarado because the heroin played merely a
nonessential contributing role in Thomas’ death has no support
in the record.
In this context, the district court’s decision
not to further define “death results from” cannot be found to be
an
abuse
of
discretion,
let
alone
plain
error.
Cf.
United
States v. Walton, 207 F.3d 694, 698 (4th Cir. 2000) (en banc)
(“[W]e remain convinced that attempting to explain the words
‘beyond a reasonable doubt’ is more dangerous than leaving a
jury to wrestle with only the words themselves”).
We
recognize
that,
in
different
circumstances
where
the
record might suggest that the decedent ingested heroin but might
have died nonetheless from the effects of other substances, a
court’s
become
refusal
a
to
problem.
clarify
In
such
the
an
phrase
“results
ambiguous
from”
scenario,
a
might
jury,
without a clarifying instruction, might be allowed to apply the
penalty enhancement under § 841(b)(1)(C) even if heroin was not
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cause
of
death.
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To
foreclose
such
an
erroneous
finding, the court would likely have an obligation to explain
that a drug that plays a nonessential contributing role does not
satisfy
the
enhancement.
conclude
that
results-from
causation
necessary
to
apply
the
But, based on the record in this case, we cannot
the
district
court
abused
its
discretion
or
committed plain error.
III
Alvarado also contends that the district court erred in
failing to instruct the jury that “defendants should only be
held liable [under § 841(b)(1)(C)] for the foreseeable results
of their actions.”
United
States
v.
While he acknowledges that our decision in
Patterson,
38
F.3d
139
(4th
Cir.
1994),
directly contradicts his position, he argues that Patterson no
longer controls in light of Burrage, where the Supreme Court
held that § 841(b)(1)(C) was an element of the offense, see
Burrage,
134
S.
Ct.
at
887.
When
analyzed
as
an
element,
according to Alvarado, § 841(b)(1)(C) becomes subject to the
same protections as other elements of an offense.
He notes, for
instance, that the Supreme Court has held that, absent clear
congressional intent to the contrary, common law “requires the
government to prove that the defendant’s actions were not only a
cause of the result, but also that the result was a foreseeable
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(Emphasis added).
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Citing Staples v. United States, 511
U.S. 600, 606 (1994), he also points out that “offenses that
require no mens rea generally are disfavored.”
The government contends that Patterson remains good law,
noting that we continue to rely on it in unpublished opinions,
and
that
other
courts
of
appeals
have
similarly
interpreted
§ 841(b)(1)(C) as containing no foreseeability requirement.
We agree with the government that Patterson remains good
law on this issue.
whether
or
offense.
language,
not
§
The analysis in Patterson did not depend on
841(b)(1)(C)
served
as
an
element
of
the
Rather, we focused on the meaning of the statutory
regardless
Ҥ 841(b)(1)(C)
requirement.”
of
imposes
its
role,
to
no
reasonable
Patterson, 38 F.3d at 145.
conclude
that
foreseeability
We explained that
“the plain language of § 841(b)(1)(C) does not require, nor does
it indicate, that prior to applying the enhanced sentence, the
district court must find that death resulting from the use of a
drug distributed by a defendant was a reasonably foreseeable
event.”
Id.
Indeed, we concluded that the “plain language
reveals Congress’ intent” to “put[] drug dealers . . . on clear
notice that their sentences will be enhanced if people die from
using the drugs they distribute.”
And
the
Supreme
Court’s
Id.
decision
does
not
suggest that § 841(b)(1)(C) should be construed otherwise.
The
17
in
Staples
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Staples Court did observe, as Alvarado notes, that “offenses
that
require
no
mens
rea
generally
are
disfavored”
and
that
“some indication of congressional intent, express or implied, is
required to dispense with mens rea as an element of a crime.”
511 U.S. at 606.
But the crime for which Alvarado was convicted
does in fact contain a mens rea requirement.
Court
noted
in
Burrage,
principal elements:
“the
crime
As the Supreme
charged
.
.
.
has
two
(i) knowing or intentional distribution of
heroin, § 841(a)(1), and (ii) death caused by (‘resulting from’)
the
use
of
that
drug,
(footnote omitted).
distribution
of
§
841(b)(1)(C).”
134
S.
Ct.
at
887
The first element -- knowing or intentional
heroin
--
explicitly
includes
a
mens
rea.
Staples does not suggest that every element of an offense must
contain a mens rea, directing only that we should think twice
before concluding that an offense, viewed as a whole, contains
no mens rea requirement.
See 511 U.S. at 606.
As we pointed out in Patterson, § 841(b)(1)(C) does not
contain a separate mens rea.
38 F.3d at 145.
Rather, it serves
to elevate the crime of knowingly or intentionally distributing
heroin to a more serious level.
Thus, we conclude that the district court fairly stated the
controlling
law
in
refusing
to
instruct
the
§ 841(b)(1)(C) contains a foreseeability requirement.
905 F.2d at 789.
18
jury
that
See Cobb,
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IV
Finally, Alvarado contends that the district court erred in
admitting hearsay that Thomas, the deceased declarant, had said
that he purchased heroin from “Fat Boy,” a name referring to
Alvarado.
Alvarado argues that the hearsay did not fall within
any exception to Rule of Evidence 802 (the hearsay rule) and,
moreover, that its admission violated the Confrontation Clause,
which
protects
his
right
to
cross-examine
declarants
making
“testimonial” statements.
The government contends that the district court properly
admitted
the
testimony
statement-against-interest
about
Thomas’
exception
contained in Rule of Evidence 804(b)(3).
statements
to
the
under
hearsay
the
rule
It also maintains that
admitting Thomas’ statements did not violate Alvarado’s rights
under
the
Confrontation
Clause
because
Thomas
made
the
statements to friends in an informal context and therefore the
statements were not “testimonial.”
Rule 804(b)(3) provides, in relevant part, that a hearsay
statement made by a declarant who is unavailable as a witness
may nevertheless be admitted as evidence if the statement was
one that “a reasonable person in the declarant’s position would
have made only if the person believed it to be true because,
when made, it . . . had so great a tendency to . . . expose the
declarant to civil or criminal liability” and if the statement
19
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is
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“supported
by
corroborating
indicate its trustworthiness.”
be
admitted
unavailable,
under
(2)
Pg: 20 of 49
this
the
circumstances
that
clearly
Stated otherwise, “hearsay may
exception
statement
if
is
(1)
the
genuinely
declarant
adverse
to
is
the
declarant’s penal interest, and (3) ‘corroborating circumstances
clearly indicate the trustworthiness of the statement.’”
United
States v. Bumpass, 60 F.3d 1099, 1102 (4th Cir. 1995).
Alvarado does not, in making his argument, appear to rely
on the first prong, requiring that the declarant be unavailable,
or the third prong, requiring corroborating circumstances that
indicate
the
trustworthiness
of
the
statements.
Rather,
he
argues that the second prong, which requires that the statements
be adverse to the declarant’s penal interest, was not satisfied.
With respect to that prong, he concedes that the portion of
Thomas’ statements in which he admitted to purchasing heroin was
“nominally against [his] penal interest” -- although “barely so”
because
Thomas
friends.”
Boy’
as
interest,
was
speaking
“only
to
other
drug
users
and
Rather, he argues that the “identification of ‘Fat
Thomas’
drug
source
was
and
should
have
been
excluded in its entirety.”
never
against
appropriately
(Emphasis added).
Thomas’
penal
redacted
or
We need not,
however, resolve whether the identification of “Fat Boy” was
sufficiently
adverse
to
Thomas’
interest
to
fit
the
Rule
804(b)(3) exception because we conclude that, even if there was
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error, it was harmless in light of the strength of the other
evidence against Alvarado.
See United States v. Banks, 482 F.3d
733, 741 (4th Cir. 2007).
That
evidence
all
but
conclusively
confirms
that
only
Alvarado sold heroin to Thomas on the day of his death and that
Thomas injected that heroin soon thereafter, resulting in his
death.
For
example,
in
addition
to
Thomas’
text-message
exchanges with Alvarado, in which Thomas indicates his intent to
buy a bundle of heroin from Alvarado, Alvarado himself admitted,
during
his
Thomas
on
custodial
the
day
interrogation,
of
the
fatal
that
he
sold
overdose.
And
heroin
the
to
heroin
packaging materials found near Thomas’ body were of the type and
color used by Alvarado and not other suppliers from whom Thomas
had
previously
confirmed
purchased
that
purchasing it.
Thomas
heroin.
used
heroin
Also,
multiple
almost
witnesses
immediately
after
The evidence here indicates as much, as an array
of drug paraphernalia was discovered around Thomas mere hours
after
he
purchased
heroin
from
Alvarado.
No
evidence
even
suggests that Thomas obtained the heroin from anyone other than
Alvarado
on
the
day
of
his
death.
On
this
record,
we
can
conclude “with fair assurance, after pondering all that happened
without stripping the erroneous action from the whole, that the
judgment was not substantially swayed by the error,” if indeed
21
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there was error.
Pg: 22 of 49
United States v. Heater, 63 F.3d 311, 325 (4th
Cir. 1995) (internal quotation marks and citation omitted).
Alvarado’s
Confrontation
unpersuasive.
enjoy
the
That
right
against him.”
interpreted
Clause
.
.
.
Clause
provides
to
Clause
also
“the
accused
confronted
be
as
is
that
with
the
U.S. Const. amend. VI.
the
argument
shall
witnesses
The Supreme Court has
prohibiting
the
admission
of
“testimonial” statements from an unavailable declarant, unless
the
defendant
declarant.
(“Where
had
a
prior
Crawford
testimonial
v.
opportunity
Washington,
evidence
is
at
to
541
cross-examine
U.S.
issue,
.
36,
.
Amendment demands what the common law required:
and
a
prior
opportunity
for
.
68
that
(2004)
the
Sixth
unavailability
cross-examination”).
While
the
Court has not provided an exhaustive list of what constitutes
“testimonial
evidence,”
the
term
encompasses
such
things
as
“prior testimony at a preliminary hearing, before a grand jury,
or at a former trial; and . . . police interrogations.”
see
also
Davis
(explaining
“testimonial
there
is
purpose
events
no
of
v.
that
statements
when
.
the
Washington,
.
the
.
an
circumstances
ongoing
interrogation
potentially
in
547
relevant
U.S.
interrogation
objectively
emergency,
is
to
813,
to
later
and
criminal
(2006)
qualify
indicate
that
establish
822
Id.;
or
the
as
that
primary
prove
past
prosecution”).
But it is undisputed that testimonial evidence does not include
22
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statements made to friends in an informal setting.
See United
States v. Jordan, 509 F.3d 191, 201 (4th Cir. 2007) (“To our
knowledge, no court has extended Crawford to statements made by
a declarant to friends or associates”) (citing cases from the
Second, Sixth, and Eighth Circuits); see also United States v.
Dargan, 738 F.3d 643, 650 (4th Cir. 2013) (“Harvey made the
challenged statements to a cellmate in an informal setting -- a
scenario
far
afield
from
the
type
of
declarations
that
represented the focus of Crawford’s concern”); United States v.
Udeozor,
515
defendant]
F.3d
plainly
260,
did
270
not
(4th
think
Cir.
he
was
2008)
(“Because
giving
any
[the
sort
of
testimony when making his statements to the victim during the
recorded
telephone
calls,
the
admission
of
these
two
taped
conversations into evidence did not violate [the defendant’s]
rights under the Confrontation Clause”).
In this case, the challenged testimony included statements
that Thomas made to his fiancée and to one of his best friends - in an informal setting -- that he purchased his heroin from
“Fat Boy.”
Because such statements were not testimonial, their
admission did not implicate the Confrontation Clause.
*
*
23
*
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For
the
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reasons
given,
we
Pg: 24 of 49
affirm
the
judgment
of
the
district court.
AFFIRMED
24
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DAVIS, Senior Circuit Judge, concurring in part and dissenting
in part:
My
friends
judgment
in
against
the
Jean
majority
Paul
affirm
the
Alvarado,
who
district
was
court’s
convicted
of
violating 21 U.S.C. § 841(a)(1) and sentenced to a mandatory
minimum
of
twenty
§ 841(b)(1)(C)
years’
for
resulted
in
district
court’s
imprisonment
distributing
Thomas’s
death.
jury
pursuant
heroin
The
instructions
to
majority
Eric
as
to
to
21
Thomas
holds
the
U.S.C.
that
meaning
that
the
of
§ 841(b)(1)(C)’s requirement that “death . . . results from” the
use
of
the
distributed
substance
were
adequate
and
that
the
district court neither abused its discretion nor committed plain
error in its instructions.
close,
I
am
persuaded
Although the question presented is
that
Alvarado
did
not
receive
the
minimally fair trial the Constitution guarantees him, one in
which a properly instructed jury holds the government to its
obligation to prove the elements of the charged offense beyond a
reasonable doubt.
Accordingly, I respectfully dissent.
For the reasons that follow, I would vacate the judgment of
conviction
under
§ 841(b)(1)(C)
and
remand
with
instructions
that Alvarado either (1) be accorded a new trial or (2) be
resentenced
without
a
new
trial
§ 841(a)(1) distribution offense.
on
the
lesser
included
In all other respects, I join
the majority in affirming the judgment of the district court.
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I.
Alvarado challenges, among other things, the adequacy of
the district court’s jury instructions as to the meaning of the
statutory phrase “results from.”
instructed
the
jury
government
has
proved
resulted
from
when
distributed
use
J.A.
§ 841(b)(1)(C)’s
.
“determine
reasonable
of
[a
.
.
a
results
Alvarado
inadequate
death
that
Alvarado
tracked
sentencing
from
contends
and
that
the
language
This
that
whether
doubt
substance
947.
substance.
were
must
a
requirement
“death
instructions
it
beyond
the
distributed].”
applies
that
At trial, the district court
the
enhancement
use
that
therefore
of”
these
the
jury
erroneous
and
prejudicial.
A.
“Whether
jury
question of law.”
instructions
were
properly
given
is
a
United States v. Herder, 594 F.3d 352, 359
(4th Cir. 2010) (quoting United States v. Morrison, 991 F.2d
112,
116
decision
(4th
to
Cir.
give
1993)).
particular
We
ordinarily
instructions
review
and
those instructions for abuse of discretion.
the
a
court’s
content
of
United States v.
Kivanc, 714 F.3d 782, 794 (4th Cir. 2013); United States v.
Russell, 971 F.2d 1098, 1107 (4th Cir. 1992).
The majority
suggests, however, that because Alvarado failed to object to the
district
court’s
decision
not
26
to
clarify
or
supplement
its
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instructions
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in
response
to
Pg: 27 of 49
the
jury’s
questions
during
deliberations, our review should be limited to that of plain
error.
I
disagree
and
believe
that
review
for
abuse
of
discretion is warranted.
Prior
to
trial,
Alvarado
proposed
alternative
jury
instructions regarding § 841(b)(1)(C)’s causation element.
The
district
and
court
denied
Alvarado’s
proposed
instructions
instead decided that it would “instruct the jury only on what
the statutory language is”—that is, it would instruct the jury
only that § 841(b)(1)(C) requires “that death resulted from the
use of [the] heroin.”
J.A. 481, 486–87.
Alvarado expressly
objected both to the court’s denial of his proposed instructions
and to the court’s decision to “use[] the statutory language
only”
in
instructing
the
jury
on
this
matter.
J.A.
487.
Whether or not the former objection was sufficient to preserve
the issue, see Jones v. United States, 527 U.S. 373, 387 (1999),
in my view, the latter objection, which Alvarado raised before
the jury retired, effectively preserved for appeal the issue of
whether
the
“results
notwithstanding
later
declined
language.
jury
from”
Alvarado’s
to
instruction
failure
elaborate
on
the
to
was
object
meaning
when
of
the
adequate,
the
court
statutory
See id. (recognizing that a party that objects to a
instruction
before
the
jury
retires
may
challenge
instruction on appeal); Fed. R. Crim. P. 30(d), 51(b).
27
the
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In analogous situations, this Court has “held that when a
party moves in limine to exclude evidence, the party need not
renew its objection when evidence within the scope of the motion
is introduced at trial.”
United States v. Cone, 714 F.3d 197,
225 (4th Cir. 2013) (Wynn, J., concurring in part and dissenting
in part) (citing United States v. Ruhe, 191 F.3d 376, 383 n.4
(4th Cir. 1999)); see also United States v. Williams, 81 F.3d
1321, 1325 (4th Cir. 1996) (“[M]otions in limine may serve to
preserve issues that they raise without any need for renewed
objections
at
trial.”);
Alvarado’s
objection
to
Fed.
the
R.
Evid.
adequacy
of
103(b).
the
Similarly,
“results
from”
instruction prior to deliberations most assuredly preserved the
issue
for
appeal,
and
Alvarado
did
not
need
to
renew
this
objection when the district court provided its instructions and
later declined to expand on them.
Accordingly, I would review
for abuse of discretion. 1
1
Further, by failing to argue in its appellate brief for
application of plain error review and instead recognizing the
propriety of review for abuse of discretion, the government has
“waived the waiver argument” regarding Alvarado’s purported
failure to object to the jury instructions.
See United States
v. Carthorne, 726 F.3d 503, 509 n.5 (4th Cir. 2013) (citation
omitted) (collecting cases), called into question in part on
other grounds by Johnson v. United States, 135 S. Ct. 2551, 2560
(2015).
Although the government ultimately sought plain error
review at oral argument, this belated effort was insufficient to
preserve the government’s contention that Alvarado waived his
jury instruction challenge at trial.
See United States v.
Powell, 666 F.3d 180, 185 n.4 (4th Cir. 2011) (“By not
(Continued)
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B.
In
assessing
whether
the
district
court
abused
its
discretion, this Court must “review the entire jury charge to
determine
whether
the
jury
was
properly
instructed
elements of the offenses and the accused’s defenses.”
594 F.3d at 359.
on
the
Herder,
“By definition, a court ‘abuses its discretion
when it makes an error of law.’”
United States v. Moye, 454
F.3d 390, 398 (4th Cir. 2006) (en banc) (quoting United States
v. Prince-Oyibo, 320 F.3d 494, 497 (4th Cir. 2003)).
The key
inquiry is “whether the instructions construed as a whole, and
in light of the whole record, adequately informed the jury of
the controlling legal principles without misleading or confusing
the jury to the prejudice of the objecting party.”
Kivanc, 714
F.3d at 794 (quoting Noel v. Artson, 641 F.3d 580, 586 (4th Cir.
2011)).
Alvarado
contends
that
the
jury
instructions
did
not
adequately convey that § 841(b)(1)(C) requires a showing that
Thomas’s use of the heroin that Alvarado distributed was either
independently sufficient to cause Thomas’s death or a but-for
cause of Thomas’s death.
Alvarado bases this argument on the
presenting any of these arguments in its appellate brief, the
Government has abandoned them.” (citing Snyder v. Phelps, 580
F.3d 206, 216 (4th Cir. 2009), aff’d, 562 U.S. 443 (2011))).
Thus, review for abuse of discretion is appropriate for this
reason as well.
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Supreme Court’s decision in United States v. Burrage, 134 S. Ct.
881 (2014), which the Court decided after the jury’s verdict but
before
other
sentencing.
things,
In
whether
Burrage,
a
the
defendant
Court
“may
considered,
among
convicted
under
be
[§ 841(b)(1)(C)’s] ‘death results’ provision . . . when the use
of the controlled substance was a ‘contributing cause’ of the
death.”
Id.
at
886.
Acknowledging
that
the
Controlled
Substances Act does not expressly define the phrase “results
from,” the Court determined that the phrase’s “ordinary meaning”
requires actual, or but-for, causation.
Id. at 887–88.
The
Court held that, “at least where use of the drug distributed by
the defendant is not an independently sufficient cause of the
victim’s
death
. . .
a
defendant
cannot
be
liable
under
the
penalty enhancement provision of 21 U.S.C. § 841(b)(1)(C) unless
such use is a but-for cause of the death.”
Id. at 892.
Thus,
the Court in Burrage recognized that a court may not impose
§ 841(b)(1)(C)’s
mandatory
minimum
sentence
based
on
a
jury
finding that use of the drug distributed by the defendant merely
contributed to someone’s death; rather, use of the drug must
have been an independently sufficient cause or a but-for cause
of the death for the penalty enhancement to apply.
See id.
Accordingly, Alvarado argues that the jury instructions provided
at
his
trial,
which
merely
directed
30
the
jury
to
determine
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whether
“death
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resulted
from”
Pg: 31 of 49
Thomas’s
use
of
heroin,
were
erroneous, i.e., prejudicially incomplete.
The government maintains that the jury instructions could
not
have
been
erroneous
because
they
precisely
stated
the
controlling law—that is, the district court merely tracked the
language of the Controlled Substances Act in instructing the
jury
to
determine
whether
controlled substance.
death
resulted
from
the
use
of
a
Further, the government argues that the
meaning of the language “results from” is clear and unambiguous
in light of the Supreme Court’s recognition in Burrage that butfor causation is the “ordinary meaning” of the phrase.
at 887–88.
See id.
In other words, the government contends that the
statutory language is plain on its face and therefore did not
require further explanation.
Significantly,
the
I disagree.
relevant
inquiry
is
whether
the
jury
instructions “adequately informed the jury of the controlling
legal principles without misleading or confusing the jury to the
prejudice of the objecting party.”
(emphasis
added)
(quoting
Noel,
641
Kivanc, 714 F.3d at 794
F.3d
at
586).
It
is
therefore not enough for jury instructions merely to parrot the
controlling law where the statutory text itself may mislead or
confuse the jury.
My friends in the majority and I are in
agreement on this matter, as they expressly recognize that, in
circumstances “where the record might suggest that the decedent
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ingested heroin but might have died nonetheless from the effects
of other substances, a court’s refusal to clarify the phrase
‘results
from’
majority
explains
jury,
without
apply
the
might
become
that,
a
“[i]n
clarifying
penalty
a
problem.”
such
an
under
at
ambiguous
instruction,
enhancement
Ante
might
14.
scenario,
be
allowed
§ 841(b)(1)(C)
heroin was not a but-for cause of death.”
The
even
Id. at 14–15.
a
to
if
The
majority and I differ, however, in our analyses of whether this
case presents such an “ambiguous scenario,” as I conclude (based
on
my
study
of
the
entire
record)
that
it
does,
while
the
majority determines that it does not.
By failing to clarify the causation requirement in its jury
instructions, the district court (acting without the forthcoming
guidance from the Supreme Court) certainly confused or misled
the jury, and it left open the possibility that the jury could
convict Alvarado upon determining that Thomas’s use of heroin
was merely a contributing factor in Thomas’s death.
A guilty
verdict on this basis would plainly have prejudiced Alvarado;
indeed, the Supreme Court reversed a conviction in Burrage where
the jury had relied on this “markedly different understanding of
the statute.”
See 134 S. Ct. at 892.
C.
Although
the
Supreme
Court
indicated
that
the
phrase
“results from” imports an actual causation requirement based on
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its “ordinary meaning,” this meaning was far from clear to the
jury
in
expressed
Alvarado’s
its
requirement,
case.
In
confusion
even
though
as
the
fact,
to
the
the
district
jury
unmistakably
applicable
court
had
causation
tracked
the
language of the Controlled Substances Act in its instructions.
During deliberations, the jury produced a note stating, “We
have a question regarding whether ‘death resulted from the use
of the heroin’ means solely from the use of heroin, or that
heroin ‘contributed to [Thomas’s] death.’”
J.A. 747.
Once the
reconstituted jury began its deliberations anew the following
day,
the
jury
repeated
its
question:
“The
jury
would
like
clarification on . . . [t]he section that says ‘death resulted
from the use of the heroin.’
Should this be interpreted as
meaning death resulted ‘exclusively’ from the heroin, or that
the heroin contributed to the death?”
the
district
court
merely
pointed
the
J.A. 922.
jury
to
In response,
the
original
instruction containing the “results from” language, providing no
further guidance to alleviate the ambiguity that the jury had
highlighted. 2
2
Even though Alvarado did not object to the district
court’s response to these inquiries, I nonetheless consider the
jury’s questions and the district court’s response in assessing
the adequacy of the instructions, as our precedent requires us
to consider the instructions in light of the entire jury charge
and the whole record. See Kivanc, 714 F.3d at 794; Herder, 594
F.3d at 359.
33
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The jury in this case was not alone in recognizing that the
phrase “results from” is susceptible to multiple meanings.
In
Burrage, the Solicitor General argued before the Supreme Court
that “results from” did not require but-for causation.
S.
Ct.
at
890
interpretation
(noting
of
that
‘results
the
from’
government
under
had
which
use
See 134
“urge[d]
of
a
an
drug
distributed by the defendant need not be a but-for cause of
death, nor even independently sufficient to cause death”).
The
Supreme Court, however, “decline[d] to adopt the Government’s
permissive interpretation of § 841(b)(1)” and instead held that
“[t]he language Congress enacted requires death to ‘result from’
use of the unlawfully distributed drug, not from a combination
of factors to which drug use merely contributed.”
Id. at 891.
Moreover, other courts and judges have disagreed about the
meaning of § 841(b)(1)(C)’s text, demonstrating that the meaning
of
“results
Before
the
Burrage,
from”
Supreme
the
is
not
Court
Eighth
clear
without
granted
Circuit
further
certiorari
and
affirmed
the
had
explanation.
reversed
in
defendant’s
conviction in that case, holding that the district court had not
erred in instructing the jury that “results from” meant that the
controlled substance must have been a “contributing cause” of
the death.
Burrage,
Id. at 886.
Justice
Moreover, in a separate opinion in
Ginsburg,
joined
by
Justice
Sotomayor,
explained that she would apply the rule of lenity, a doctrine
34
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invoked
only
Filed: 03/07/2016
where
Pg: 35 of 49
statutory
language
interpreting § 841(b)(1)(C)’s text.
is
ambiguous,
in
See id. at 892 (Ginsburg,
J., concurring in the judgment); cf. Bifulco v. United States,
447 U.S. 381, 387 (1980) (recognizing that the rule of lenity
“applies not only to interpretations of the substantive ambit of
criminal prohibitions, but also to the penalties they impose”).
Thus, even though the Supreme Court has now clarified the
meaning of “results from” by interpreting the phrase’s “ordinary
meaning,” the language of the Controlled Substances Act, without
any further instruction, could certainly have confused or misled
the laypersons on the jury—just as it has confused many jurists—
to the prejudice of Alvarado.
Cf. United States v. MacKay, 20
F. Supp. 3d 1287, 1295 (D. Utah 2014) (“In effect the Government
asks the Court to find the statutory interpretation skills of
the common layperson juror equal to those of Justice Scalia.
The Court is unable to make such a finding when this Court, the
district court in Burrage, and the Eighth Circuit, all failed to
correctly deduce the plain meaning of ‘resulting from.’”).
fact,
the
instructions
plainly
did
confuse
the
jury
in
In
this
case, as evidenced by the jury’s questions. 3
3
Although the reconstituted jury reached its decision
fairly quickly after the court addressed (or, more accurately,
declined to address) its last question, the jury’s questions
nonetheless illustrated its confusion regarding the “results
from” requirement.
Further, while the jury’s efficiency in
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As we must consider the entire jury charge and the record
as
a
whole
adequate
in
and
assessing
not
whether
misleading,
the
see
jury
Kivanc,
instructions
714
F.3d
at
were
794;
Herder, 594 F.3d at 359, I also note that counsel on both sides
and testifying witnesses made statements throughout the trial
that easily could have led the jury to question the applicable
causation requirement.
of
Dr.
Gayle
Diphenhydramine
death?”
before
For instance, during direct examination
Suzuki,
[i.e.,
the
government
Benadryl]
clarifying,
“So
asked,
contribute
neither
the
to
“Did
Eric
the
Thomas’
alprazolam
[i.e.,
Xanax] or Diphenhydramine, even though they were there at the
same
time,
contributed
to
Eric
Thomas’
death[?]”
J.A.
621.
While these questions might be viewed as probing the independent
sufficiency
of
the
heroin
in
causing
Thomas’s
death,
this
phrasing could certainly have prompted the jury to believe that
the proper inquiry was which drugs did or did not “contribute[]
to” Thomas’s death.
Likewise,
during
closing
arguments,
the
government
repeatedly emphasized Dr. Suzuki’s testimony that Xanax “played
no
role
in
[Thomas’s]
cause
of
death.”
J.A.
689.
As
the
reaching a verdict might indicate that the jury promptly
concluded that the statutory language required a finding of
independent sufficiency or but-for causation, it could just as
easily demonstrate that the jury quickly concluded that “results
from” required only contributory causation.
36
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government
explained,
Dr.
Suzuki
had
Xanax
diphenhydramine
played
absolutely
and
death.
It
was
the
heroin.”
maintained
Id.
no
Indeed,
that
role
“[t]he
in
during
this
cross-
examination, Dr. Suzuki described her determination that, even
though Thomas had had Xanax in his system when he died, the
Xanax had not “contributed or helped him to die.”
J.A. 630.
As
above, although the government might have intended to elicit and
emphasize
these
sufficiency
comments
of
statements
the
could
heroin
also
to
in
have
highlight
causing
signaled
the
Thomas’s
to
the
independent
death,
these
jury,
even
unintentionally, that it must determine which substances may or
may
not
death.
have
contributed
to,
or
played
a
role
in,
Thomas’s
And a simple “but for” instruction could have readily
dispelled this possibility; sometimes saying less is not the
best
course
of
action.
Even
though
the
government
also
highlighted Dr. Suzuki’s testimony that Thomas would not have
died had he not ingested heroin (recalling Dr. Suzuki’s opinion
that the heroin was a but-for cause of death), the government’s
questions of witnesses and statements during closing arguments
did not make clear to the jury that one standard of causation
was more appropriate than another. 4
4
The government was not alone in making statements that
likely confused the jury as to the proper standard for
determining whether heroin actually caused Thomas’s death.
In
(Continued)
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While it is not specifically the responsibility of counsel,
and certainly not that of an expert witness, to inform the jury
of the applicable legal standard, we must consider the whole
record,
including
these
statements
throughout
trial,
in
assessing whether the district court’s jury instructions were
adequate
and
not
misleading.
By
failing
to
provide
any
clarifying instruction on the meaning of “results from” before
the jury retired to deliberate or, of even greater significance,
in response to the jury’s subsequent questions highlighting the
jury’s
manifest
causation,
confusion
struggle
the
that
district
had
arisen
with
court
the
statutory
did
during
not
the
requirement
alleviate
trial,
and
any
its
of
jury
limited
instructions likely perpetuated this confusion.
D.
It is of no moment that the district court declined to
elaborate on the meaning of “results from” in an effort to avoid
the risk of causing further jury confusion.
In explaining the
rationale
to
behind
§ 841(b)(1)(C)
in
its
decision
its
to
adhere
instructions,
the
the
text
district
of
court
her closing arguments, defense counsel stated that the jury
would need to “determine whether the death resulted from heroin,
whether the death resulted from Xanax, [or] whether it resulted
from the combination of the different drugs,” without clarifying
whether a guilty verdict would be more or less appropriate on
any one of these bases. J.A. 718.
38
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emphasized
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that
it
found
Pg: 39 of 49
persuasive
the
Seventh
Circuit’s
decision in United States v. Hatfield, 591 F.3d 945 (7th Cir.
2010) (Posner, J.).
The court in Hatfield had explained that
“[e]laborating on a term often makes it less rather than more
clear” and noted that “[p]robably the same is true of ‘results
from.’”
Id. at 949–50.
To be sure, as the Supreme Court had
not yet decided Burrage at the time of Alvarado’s trial, the
district court had little guidance on how best to instruct the
jury on the phrase’s meaning, especially since courts were so
divided on the issue.
Nevertheless, the question before us is
whether the instructions that the court provided, in light of
the entire jury charge and the record as a whole, “adequately
informed the jury of the controlling legal principles without
misleading
or
confusing
objecting party.”
F.3d at 586).
the
jury
to
the
prejudice
of
the
Kivanc, 714 F.3d at 794 (quoting Noel, 641
It is therefore irrelevant that the court might
have had difficulty providing more specific instructions.
In light of the Supreme Court’s holding in Burrage that
§ 841(b)(1)(C) requires a finding that use of the controlled
substance was an independently sufficient or but-for cause of
death, the district court’s instructions, which merely directed
the jury to determine whether death “resulted from” the use of
heroin, were insufficient, no matter how well intended.
See
Moye,
its
454
F.3d
at
398
(“By
definition,
39
a
court
‘abuses
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discretion when it makes an error of law.’” (quoting PrinceOyibo, 320 F.3d at 497)).
case,
I
would
“adequately
hold
inform[]
that
the
Thus, based on the record in this
the
jury
jury
of
instructions
the
did
controlling
not
legal
principles without misleading or confusing the jury,” Kivanc,
714
F.3d
at
794
(quoting
Noel,
641
F.3d
at
586),
and
the
district court abused its discretion in providing these limited
instructions. 5
5
By the same logic, I would hold that the district court’s
decision to limit its instruction on causation to the “results
from” language of the statute was also plain error were it
necessary to apply that standard of review.
To satisfy the
plain error standard, a defendant must show that “(1) an error
was made; (2) the error is plain; and (3) the error affects
substantial rights.” United States v. Massenburg, 564 F.3d 337,
342–43 (4th Cir. 2009) (citing United States v. Olano, 507 U.S.
725, 732 (1993)).
The third prong typically “means that the
error must have been prejudicial:
It must have affected the
outcome of the district court proceedings.” Olano, 507 U.S. at
734.
Before the judgment against Alvarado became final, the
Supreme Court held in Burrage that it is reversible error for a
district court to instruct a jury in a manner that allows the
jury to find that “death resulted” under § 841(b)(1)(C) based on
a determination that the substance the defendant distributed
merely contributed to the death.
As the jury instructions in
this case did not foreclose the possibility that the jury would
convict upon finding contributory causation, the instructions
were erroneous, and the error in this case was plain at the time
of appellate review. See Henderson v. United States, 133 S. Ct.
1121, 1124–25 (2013) (“[A]s long as the error was plain as of
. . . the time of appellate review . . . the error is ‘plain’
within the meaning of [Federal Rule of Criminal Procedure
52(b)].”).
Further, as demonstrated throughout this opinion,
Alvarado has shown that the error was prejudicial, as it likely
influenced the jury’s determination that “death resulted” from
the heroin that Alvarado distributed, affecting the outcome of
(Continued)
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II.
The
error
majority
in
giving
§ 841(b)(1)(C)’s
occurred
concludes
in
such
“death
this
that,
limited
results”
case
despite
the
for
instructions
jury
potential
on
requirement,
because
the
no
record
such
error
unequivocally
demonstrates that heroin was an independently sufficient or butfor
cause
of
Thomas’s
death.
In
other
words,
the
majority
essentially determines that the jury instructions in this case
could not have misled or confused the jury “to the prejudice of
the objecting party.”
Id. (quoting Noel, 641 F.3d at 586).
As
I have already determined that the district court’s instructions
were
erroneous
on
the
record
before
us,
I
explore
whether
prejudice may have resulted from that error.
A.
When a district court “erroneously instructs the jury on an
element of the offense, the error may be disregarded as harmless
if a reviewing court can determine, beyond a reasonable doubt,
that a correctly instructed jury would have reached the same
conclusion.”
United States v. Hastings, 134 F.3d 235, 241 (4th
Cir. 1998).
In other words, the relevant inquiry is whether it
the trial. See Olano, 507 U.S. at 734–35 (recognizing that the
defendant bears the burden of establishing that plain error was
prejudicial). Thus, the district court committed plain error in
providing these jury instructions.
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is “clear beyond a reasonable doubt that a rational jury would
have found the defendant guilty absent the error.”
Neder v.
United States, 527 U.S. 1, 15–16 (1999); United States v. Brown,
202 F.3d 691, 699 (4th Cir. 2000).
Because the jury instructions in this case allowed the jury
to convict Alvarado based on a misinterpretation of an element
of the charge—that is, based on a belief that § 841(b)(1)(C)’s
“death
results”
element 6
merely
required
that
the
heroin
“contributed to” Thomas’s death—and because the record does not
foreclose the possibility that a rational jury might have done
so,
I
would
hold
that
the
error
was
not
harmless.
Stated
differently, I cannot conclude beyond a reasonable doubt that a
rational jury given the correct instructions would have reached
the same outcome.
It is important to note that, while the government bears
the burden of proving harmlessness, United States v. Lovern, 293
F.3d 695, 701 (4th Cir. 2002), the government failed to address
this issue at all in its briefing.
It contends only that the
jury instructions were adequate without suggesting what results
6
Burrage made clear that, “[b]ecause the ‘death results’
enhancement increased the minimum and maximum sentences to which
[the defendant] was exposed, it is an element that must be
submitted to the jury and found beyond a reasonable doubt.” 134
S. Ct. at 887 (citing Alleyne v. United States, 133 S. Ct. 2151,
2162–63 (2013); Apprendi v. New Jersey, 530 U.S. 466, 490
(2000)).
42
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if
Doc: 75
we
find
otherwise.
establish
that
harmless
beyond
Alvarado’s
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the
a
Pg: 43 of 49
Thus,
district
the
court’s
reasonable
conviction
under
government
doubt,
has
instructional
and
we
§ 841(b)(1)(C)
failed
error
to
was
could
vacate
this
basis.
on
Nevertheless, I will explore the issue further for the sake of
completeness.
B.
Although Dr. Suzuki testified that, in her expert opinion,
heroin intoxication was the cause of Thomas’s death, and she
essentially testified that the heroin was both an independently
sufficient and but-for cause of death, other evidence presented
at trial could have led a rational jury to conclude that heroin
was
merely
a
contributing
factor.
To
begin,
the
record
contained evidence suggesting that heroin was not independently
sufficient
to
have
caused
Thomas’s
death.
For
instance,
Thomas’s fiancée, Monica Shaugnessey, testified that Thomas had
ingested heroin on a daily basis and had done so for years prior
to his death.
In 2011, Thomas purchased and ingested between
five and ten bags of heroin each day, and the day he died was no
exception.
Yet he had only previously suffered cardiac arrest
and stopped breathing when he injected a combination of heroin
and Xanax, as he did when he died.
This history suggests that
heroin alone was likely insufficient to have caused Thomas’s
death.
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It is also significant that the morphine in Thomas’s system
from his ingestion of heroin was found to be at a toxic, not
lethal, level.
J.A. 619.
In other words, it was at the level
where the substance may “start doing damage to the body, harming
certain systems in the body,” but it had not reached the level
“associated with knowing [the substance] to have caused death.”
J.A. 579.
Further, Thomas had likely developed a high tolerance
for heroin such that he could have ingested much more of the
drug before truly reaching a level that was toxic to him.
Both
doctors who testified at trial stated that they had found the
morphine in Thomas’s system to be at a toxic level based on
standard
charts
that
do
not
account
particular tolerance for the substance.
the
conclusion
that
the
heroin
in
for
an
individual’s
This evidence supports
Thomas’s
system,
while
harmful, was not an independently sufficient cause of his death.
The record also does not contain uncontroverted evidence
that heroin was a but-for cause of Thomas’s death.
testified
that
combination
of
Alvarado
Xanax
had
and
only
heroin
severe reactions in Alvarado:
recently
and
that
Shaugnessey
begun
injecting
doing
so
a
prompted
“His new thing was to mix them
together and that will kill you and he knew this.”
44
J.A. 415.
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It is unclear, however, that Thomas’s injection of Xanax alone 7
or
in
combination
with
Benadryl—even
at
the
relatively
low
levels that Thomas used these substances–could not have caused
his
death.
testified
Dr.
that
David
Burrows,
injecting
a
the
forensic
substance
rather
toxicologist,
than
orally
ingesting it causes the drug to have a faster additive effect.
J.A. 596.
He also stated that mixing Xanax and Benadryl, which
are both central nervous system depressants that can affect a
person’s
breathing
synergistic
and
effects”
heartbeat,
as
“aggravate” one another.
the
two
J.A. 589–90.
can
have
drugs
“additive
“compound[]”
to
and
Dr. Suzuki corroborated
this testimony, as she confirmed that mixing Xanax and Benadryl
together can have an “adverse effect.”
J.A. 593.
Finally, the jury was free to assess the credibility of Dr.
Suzuki’s
testimony
and
disregard
it
if
the
jury
found
it
unreliable.
Indeed, the jury was specifically instructed on
this point:
“Expert testimony should be considered just like
any other testimony.
You may accept or reject it, and give it
as much weight as you think it deserves. . . .
The same as with
any other witness, it is up to you to decide whether to rely
7
While Dr. Suzuki did indicate that, in her expert opinion,
the relatively low level of Xanax in Thomas’s system would have
been insufficient to have independently caused his death, she
did not speak to the effect that Thomas’s intravenous injection
of the substance may have had.
45
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upon it.”
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J.A. 935.
Pg: 46 of 49
Accordingly, simply because Dr. Suzuki’s
testimony suggested that heroin was an independently sufficient
and but-for cause of Thomas’s death did not preclude the jury
from
concluding
basis.
otherwise
and
convicting
on
an
alternative
Thus, I cannot conclude beyond a reasonable doubt that a
rational
jury
would
have
reached
received a proper instruction.
the
same
outcome
had
it
Rather, a rational jury could
certainly have concluded, based on the record, that the use of
heroin was neither an independently sufficient cause nor a butfor
cause
of
Thomas’s
§ 841(b)(1)(C)’s
penalty
death
and
enhancement
improperly
upon
finding
triggered
that
heroin
merely “contributed to” Thomas’s death.
In
determining
otherwise,
the
majority
indicates
that
“[t]here was no evidence in the record that Thomas could have
died without the heroin” and that “no party suggested that, even
without the heroin, Thomas would have died.”
Ante at 2, 14.
These considerations appear to impermissibly shift the burdens
of proof and persuasion to Alvarado, the criminal defendant.
See Sullivan v. Louisiana, 508 U.S. 275, 277–78 (1993) (“The
prosecution
offense
bears
charged
the
and
burden
must
of
proving
persuade
the
all
elements
factfinder
of
the
‘beyond
a
reasonable doubt’ of the facts necessary to establish each of
those elements.” (emphasis added) (citations omitted)); see also
In
re
Winship,
397
U.S.
358,
46
359–64
(1970)
(discussing
the
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“vital” and “indispensable” nature of the government’s burden to
prove guilt of a criminal charge beyond a reasonable doubt).
Alvarado had no duty to present evidence that the heroin he
was
charged
with
distributing
merely
contributed
to
Thomas’s
death; nor did he have any responsibility to argue that Thomas
would have died absent the heroin.
Rather, the government bore
the burden of proving beyond a reasonable doubt that the heroin
Alvarado distributed was an independently sufficient or but-for
cause of Thomas’s death.
The only evidence that the government
presented on this matter was Dr. Suzuki’s testimony, to which
the jury was free to assign little weight or reject entirely
based
on
its
determination
of
Dr.
Suzuki’s
credibility.
Further, even though Alvarado had no duty to present evidence,
the record did in fact contain evidence, including Shaugnessey’s
and Dr. Burrows’s testimony, that could well have led a rational
juror to conclude that the heroin was neither an independently
sufficient
cause
nor
a
but-for
cause
of
Thomas’s
death.
Accordingly, I would hold that the erroneous instruction was not
harmless beyond a reasonable doubt.
And
there
is
one
additional
consideration
in
this
case
worthy of notice that bolsters the claim of prejudice.
The
indictment in this case contained but one count, that alleging a
violation of § 841(b)(1)(C), the death count.
The indictment
contained no separate count for mere distribution of heroin.
47
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Thus, given the manner in which the government elected to charge
and present the case, the jury was faced with a choice of either
acquitting an avowed drug trafficker or throwing up its hands
and
convicting
after
its
repeated
requests
of
the
court
clarification of the causation requirement were rebuffed.
supra
n.3.
provide
In
the
the
help
face
the
of
the
jury
court’s
was
serial
desperately
refusals
seeking,
for
Cf.
to
few
laypersons would be willing to say “not proven” and return a
verdict in favor of the drug dealer.
III.
For the foregoing reasons, I would vacate the judgment of
conviction
under
§ 841(b)(1)(C)
and
remand
with
instructions
that Alvarado either (1) be accorded a new trial or (2) be
resentenced
without
a
new
trial
§ 841(a)(1) distribution offense.
on
the
lesser
included
Cf. United States v. Hickman,
626 F.3d 756, 760 (4th Cir. 2010); see also United States v.
Blue, 808 F.3d 226, 237 (4th Cir. 2015) (recognizing that “it is
within
our
included
power
offense
to
direct
when
entry
vacating
a
of
judgment
greater
on
a
offense”
lesser
if
the
commission of the lesser offense “can be established from facts
that
States
the
jury
v.
insufficient
actually
Ford,
750
evidence
found”
F.3d
of
952
(citations
(8th
causation
United
Cir.
2014)
and
remanding
resentencing on lesser included drug offense).
48
omitted));
(finding
for
I agree with the
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majority’s
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determination
that
Pg: 49 of 49
no
proceedings in this case.
49
other
error
infected
the
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