U.S. v. Hatfield

• Decision Date: 14 January 2010
• Docket Number: No. 09-1705.,No. 09-1849.,09-1705.,09-1849.
• Citation: 591 F.3d 945
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rex I. HATFIELD and Everly K. Hatfield, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

591 F.3d 945

UNITED STATES of America, Plaintiff-Appellee, v. Rex I. HATFIELD and Everly K. Hatfield, Defendants-Appellants.

No. 09-1705.

No. 09-1849.

United States Court of Appeals, Seventh Circuit.

Argued November 10, 2009.

Decided January 14, 2010.

Robert L. Garrison, Attorney (argued), Office of the United States Attorney, Fairview Heights, IL, for Plaintiff-Appellee.

Stephen C. Williams, Attorney (argued), Office of the Federal Public Defender, East St. Louis, IL, for Defendants-Appellants.

Before POSNER and FLAUM, Circuit Judges, and DER-YEGHIAYAN, District Judge.^*

POSNER, Circuit Judge.

A jury convicted the defendants of conspiracy to burglarize pharmacies, 18 U.S.C. §§ 2118(b), (d), and to distribute controlled substances (including morphine, methadone, oxycodone, fentanyl, alprazolam, cocaine, and hydrocodone), the use of which resulted in death or serious bodily injury, 21 U.S.C. §§ 841(a)(1), (b)(1)(C), 846—specifically, four deaths, plus a serious bodily injury to a fifth user of the defendants' drugs. The defendants were sentenced to life in prison, as authorized by section 841(b)(1)(C). The principal issue presented by the appeals concerns the wording of the jury instruction explaining the meaning of the statutory term "results from." The exact statutory language is "if death or serious bodily injury results from the use of such substance [the defendant] shall be sentenced to a term of imprisonment of not less than twenty years or more than life."

The instruction began by stating that the jury had "to determine whether the United States has established, beyond a reasonable doubt, that the [victims] died, or suffered serious bodily injury, as a result of ingesting a controlled substance or controlled substances distributed by the defendants or by a defendant." But then it added that the controlled substances distributed by the defendants had to have been "a factor that resulted in death or serious bodily injury," and that although they "need not be the primary cause of death or serious bodily injury" they "must at least have played a part in the death or in the serious bodily injury." The defendants' lawyer asked that the addition, suggested by the prosecutor, be stricken as a confusing gloss on "results from." The district judge refused.

Causation is an important issue in many cases in a variety of fields of law and has been so for centuries. Yet it continues to confuse lawyers, in part because of a proliferation of unhelpful terminology (for which we judges must accept a good deal of the blame). In the space of three-and-a-half pages in the government's brief, we find the following causal terms: proximate cause, actual cause, direct cause, but-for causation, contributing causation, contributory causation, significant causal connection, sole cause, factor in the victims' injuries, concurrent cause, meaningful role, possible cause, remote cause, and cause in fact. Black's Law Dictionary (8th ed.2004) lists 26 terms in the entry for "cause." The prosecutor was unable at oral argument satisfactorily to differentiate or explain the causal terms listed in his brief, or the three causal terms added to the instruction—"a factor that resulted in," "primary cause," and "played a part."

The parties agree that the statutory term "results from" required the government to prove that ingestion of the defendants' drugs was a "but for" cause of the deaths and the bodily injury. The death or injury need not have been foreseeable, e.g., United States v. Houston, 406 F.3d 1121, 1124-25 (9th Cir.2005); United States v. Soler, 275 F.3d 146, 152-53 (1st Cir.2002), but the government at least must prove that the death or injury would not have occurred had the drugs not been ingested: "but for" (had it not been for) the ingestion, no injury. That is the minimum concept of cause. See Price Waterhouse v. Hopkins, 490 U.S. 228, 240, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989); Movitz v. First National Bank of Chicago, 148 F.3d 760, 762-63 (7th Cir.1998); United States v. Marlatt, 24 F.3d 1005, 1007 (7th Cir.1994). Is it the entire concept? Is it what "primary cause" and "played a part" would have conveyed to the jury?

At argument the government's lawyer said that "played a part" refers to but-for causation. But his understanding of but-for causation turned out to be incorrect. For we asked: suppose the ingestion of an illegal drug weakened the victim's health to the point where he later died of another condition that would not have killed him had he not ingested the drug. Maybe he was healthy until he ingested it, and after and because he ingested it his immune system failed and he died from an overdose of drugs, obtained from someone else, that would not have killed him but for his weakened condition. The government's lawyer said that ingesting the first drug would not have been a but-for cause of the death. But it would have been: had the victim not ingested it, he would not have died when he did.

Probably what the government's lawyer meant is that a but-for cause is not always (in fact not often) a cause relevant to legal liability. And that is true, and critical. Suppose a defendant sells an illegal drug to a person who, not wanting to be seen ingesting it, takes it into his bathroom, and while he is there the bathroom ceiling collapses and kills him. Had he not ingested the drug, he would not have been killed. But it would be strange to think that the seller of the drug was punishable under 21 U.S.C. § 841(b)(1)(C).

"Cause" in law, as in life generally, is an opportunistic concept: ordinarily it is the name we attach to a but-for cause (the better term is "necessary condition," since most but-for causes aren't considered causes at all) that we're particularly interested in, often because we want to eliminate it. We want to eliminate arson, but we don't want to eliminate oxygen, so we call arson the cause of a fire set for an improper purpose rather than calling the presence of oxygen in the atmosphere the cause, though it is a but-for cause just as the arsonist's setting the fire is. We say that the cause of the death of the drug taker in the bathroom was the improper design or construction of the ceiling rather than the sale of the drug. The reason is that the sale of the drug did not increase the risk posed by the unsafe ceiling—did not increase the risk that this sort of mishap would occur. Brackett v. Peters, 11 F.3d 78, 82 (7th Cir.1993); Zuchowicz v. United States, 140 F.3d 381, 387-89 and n. 7 (2d Cir.1998); Restatement (Third) of Torts § 30 and comment a and illustration 1 (2005). Punishing a drug seller does not reduce building accidents. Punishing him more severely because of the buyer's death in the bathroom would not cause drug dealers to take care to prevent their sales of drugs from leading by so indirect a route to the death of a buyer; there is no way, in our example, that the seller could have prevented the ceiling from collapsing.

The concept of "marginal deterrence" is pertinent here. More-serious crimes are punished more severely than less-serious ones in part to ensure that criminals are not made indifferent between committing the lesser and the greater crime; if they're going to commit crimes, at least they should commit the less serious ones. As we explained in United States v. Beier, 490 F.3d 572, 575 (7th Cir.2007), "were robbery punished as severely as murder, a robber would have an increased incentive to murder his victim in order to eliminate a key witness." See also United States v. Newsom, 402 F.3d 780, 785-86 (7th Cir.2005); Lust v. Sealy, Inc., 383 F.3d 580, 591 (7th Cir.2004); Tracey L. Meares, Neal Katyal & Dan M. Kahan, "Updating the Study of Punishment," 56 Stan. L.Rev. 1171, 1173-80 (2004). We want drug dealers not to kill their customers inadvertently. But in our hypothetical case of the falling ceiling, nothing the drug dealer did made death more likely. So we would not call the sale of the drugs the "cause" of the death in that case even though it was a necessary condition of it because, had the sale not occurred, the buyer probably would not have been in the bathroom when the ceiling collapsed.

We cannot see what the government's list of causal terms contributes to an understanding of causation as we have just explained it—especially a jury's understanding of it since the terms in the list are for the most part unfamiliar to people who haven't studied law. We particularly don't understand what a jury would make of "primary cause" and "played a part," even though those do not sound like technical legal terms, albeit "primary cause" is listed in Black's law dictionary as a synonym for "proximate cause"—which confuses things further because "proximate cause" usually implies foreseeability, see, e.g., James River Ins. Co. v. Kemper Casualty Ins. Co., 585 F.3d 382, 386-87 (7th Cir.2009); Back v. Hastings On Hudson Union Free School District, 365 F.3d 107, 127-28 n. 21 (2d Cir.2004); United States v. Hanousek, 176 F.3d 1116, 1123 (9th Cir.1999); Restatement (Third) of Torts § 29 comment j (2005), which we know is not required in our case.

In our bathroom-ceiling hypothetical, did taking the drug "play a part" in the taker's death? In a sense, it did. Was it the "primary cause" of the death? Surely not, but might a jury think it a "secondary cause"? And that a secondary cause was enough to convict? Maybe "played a part" means "was a secondary cause"—for the jury was instructed that it did not have to find that the use of the defendants' drugs was the primary cause of the deaths or the injury. Might it have thought that if death follows an overdose, the overdose must have "played a part" in the death, even if the death might have occurred without the overdose? Who knows?

The defendants' objection to the instruction was well taken. All that would have been needed to satisfy it was to eliminate the addition to the statutory language, which was a good deal clearer than...