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United States v. Ewing - 749 F. App'x 317 (6th Cir. 2018)

Rule:

At least where use of the drug distributed by the defendant is not an independently sufficient cause of the victim's death or serious bodily injury, a defendant cannot be liable under the penalty enhancement provision of 21 U.S.C.S. § 841(b)(1)(C) unless such use is a but-for cause of the death or injury. Evidence that the drug merely contributed to the victim's death is insufficient, but, where use of the controlled substance combines with other factors to produce death, and death would not have occurred without the incremental effect of the controlled substance, but-for causation exists. Two ways are recognized to establish causation under § 841(b)(1)(C): one can provide drugs that are either an independent, sufficient cause of the victim's death or a but-for cause.

Facts:

Defendant Joshua Ewing was convicted of distributing a mixture containing heroin and fentanyl, the use of which resulted in the death of Jeremy Deaton, in violation of 21 U.S.C.S. § 841(a)(1) and (b)(1)(C). He received a mandatory life sentence. On appeal, Ewing challenged his conviction on the ground that there was insufficient evidence to support his conviction and "death results" sentencing enhancement. 

Issue:

Was there sufficient evidence to support Ewing's conviction and "death results" sentencing enhancement?

Answer:

Yes, as to the conviction; No, as to the sentence enhancement.

Conclusion:

The appellate court affirmed as to the conviction and vacated and remanded in part for resentencing. The curt noted that to sustain Ewing's "death results" conviction, the Government was required to prove: (1) knowing or intentional distribution of heroin and fentanyl; and (2) death caused by (resulting from) the use of that drug. To satisfy the second element, the Government had to prove that use of the drug distributed by the defendant was "a butfor cause of the victim's death." The court ruled that viewing the evidence in the light most favorable to the Government, there was sufficient evidence to permit a reasonable jury to find that the drug sold by Ewing to Deaton was heroin laced with fentanyl.

However, the Government did not present any evidence to rebut testimony indicating that Deaton's heroin ingestion was not around the time of his death or to otherwise explain the absence of heroin or heroin metabolites in Deaton's blood. And there was testimony indicating that Deaton had not used heroin in the several hours immediately before his overdose death, in contrast to the Government's other evidence that Deaton used the drugs that caused his death. In the absence of any evidence explaining this inconsistency, the jury lacked sufficient evidence to conclude beyond a reasonable doubt that the heroin mixture sold by Ewing contained the fentanyl that caused Deaton's death.

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