*3
(4)
using,
possessing and
without lawful
HULL,
Before
BLACK and
authority, Drug
Adminis-
Enforcement
STAPLETON,*
Judges.
Circuit
(“DEA”) registration
tration
number of an-
PER CURIAM:
other in connection with
distribution
substances,
of 18
controlled
violation
Defendant-Appellant David W. Webb
1028(a)(7)
(Counts
(“Webb”)
§§
aris- U.S.C.
was convicted
130 counts
131).
alia,
fraud,
ing, inter
from his
health
wire
*
Stapleton,
acquitted
Honorable Walter K.
States
1. Webb was
on one count of the
United
Circuit, sitting
Appeals
Court of
Third
indictment.
by designation.
charged
with
ing
Count 37
health care
a written
plan
objec-
treatment
fraud,
alleged
that his fraud resulted
tives to determine
plan
whether
death,
(3)
§§
of 18
violation
U.S.C.
1347 working;
using
drug agree-
written
charged
and 2. Count 38
Webb with con-
patients
ments for
high
deemed at
risk for
spiracy
unlawfully
abuse;
distribute numerous
drug
referral of the patient to
substances,
including oxyco-
controlled
expert
“in
doctors
order to achieve treat-
fentanyl,3
and with
done2
death result-
objectives,”
ment
especially
pa-
when the
ing
oxycodone
from the use of
and fenta-
abuse;
tient
a history
has
of substance
nyl,
all
in violation of 21
U.S.C.
keeping complete and accurate records.
*4
841(a)(1), (b)(1)(C),
§§
846. Count 107
64B8-9.013(3).
Fla. Admin. Code r.
At
charged
unlawfully
Webb with
dispensing trial, witnesses testified that
pre-
Webb
oxycodone
the controlled substances
and scribed controlled substances for patients
alprazolam,4
resulting
and with death
from
minutes,
whom he saw for less than fifteen
oxycodone,
the use of the
in violation of 21 and that
patients
those
then
go
would
841(a)(1),841(b)(1)(C), 841(b)(2),
§§
U.S.C.
straight to the pharmacy.
and 18 U.S.C.
2.5 Because defendant
trial,
(“Dr.
At
Dr. Theodore Parran
Par-
challenges
Webb
the sufficiency of the evi-
ran”)
government’s
was the
expert witness
trial,
dence at
we review the
evidence
in drug and
dependency.
alcohol
Dr. Par-
detail.
ran reviewed 115
patient
to 120
files from
practice.
files,
Webb’s
on
Based
those
Dr.
II.
AT
EVIDENCE
TRIAL
Parran concluded that Webb consistently
Prescribing
A. Webb’s
Practices
violated the Florida Board of Medicine’s
Webb,
Parran,
standards. According to Dr.
Defendant
a Florida-licensed
(1) gave inadequate
Webb:
physician, operated
initial evalua-
practice
his medical
tions,
Destín, Florida,
including failures to obtain prior
under the name “Doctors
medical records and
physical
on
sub-standard
Call.”
(2)
exams;
patients
and
failed to refer
law, physicians
Under Florida
are al-
specialists to help manage their pain.
lowed to prescribe controlled medications
ignored signs
Webb also
of drug depen-
pain,
but must do so “for a sound
dency in his patients and continued to
purpose”
medical
and “within the standard
prescribe drugs
patients
even when
were
physician.”
of care of a
The Florida State
“out of control
self-taking
with their
Board of Medicine has established seven
medicine.”
physicians
standards that
prescribe
whо
testimony,
controlled substances for
Dr. Parran’s
along
the treatment of
with other
follow,
pain
evidence,
must
including
testimony
documentary
these
and
five:
indi-
conducting complete
history
medical
cated that
prescribed multiple
Webb
con-
physical
doses,
examination and
trolled
documenting
high
substances in
even
record;
them in the medical
doing
establish- where
so made little medical sense.
Oxycodone
powerful pain-reliever
to,
2.
powerful synthetic
is a
de-
opiate analgesic similar
than,
opiates
morphine.
rived from
like
potent
It comes
but
morphine.
more
in immediate-release forms such as Percocet
Alprazolam
benzodiazepine
Oxy-
continuous-release
forms such as
is a
that is often
Merrill,
help
anxiety
help people
Contin. See United
v.
used to
reduce
States
513 F.3d
(11th Cir.2008).
branded,
sleep,
among
things,
1300 n. 5
is
other
as
Merrill,
Xanax. See
informed Webb that some of Webb’s arranged for physician, Webb another pain getting tients were also medications (“Dr. Sally Cooper Dr. Ann Cooper”), to physicians. from other practice during cover his three weeks of patients’ Based on his review of various suspension. The weekend before the files, Dr. Parran concluded that Webb’s started, however, suspension phoned prescription practices way were “done in a prescriptions.” “lots and lots of After that was inconsistent with the usual course suspension began, Webb continued to practice of medical done for [were] patients treat and write prescriptions. legitimate purpose.” than medical other pharmacists When refused to fill those cross-examination, Dr. Parran On disa- prescriptions because Webb’s license was greed with Webb’s counsel’s statement suspended, he reissued the prescriptions ... caring try that “a doctor would to do using Dr. DEA Cooper’s registration num- anything they any type could to relieve prescriptions ber. Some of the were dated they patient believe their is suf- pain Cooper the week before Dr. began to fill in that: fering,” explaining practice. At point, Webb’s one ... process trying If in the Faye prescriptions. wife called some patient’s pain suffering, relieve a pharmacist Faye When told that Webb data, physician receives clinical informa- could not prescriptions write while he was tion, pharmacists, calls from calls from *6 suspended, Faye that stated Webb was not officers, probation information about ov- writing prescriptions that and she was erdoses, that patients information are phoning in. pharmacist them When the medicine, run- out of control with their fill prescription, Faye still refused to ning early, seeing multiple out different substances, thereafter, using hung up. Shortly Faye same doctors called substances, if in pro- other illicit so pharmacy gave Cooper’s back and Dr. trying provide pa- cess of care for a registration name and DEA number to pain suffering physician tient’s and a prescription authorize for a controlled indicating receives data back that that substance. also practice Webb’s called patient is out of control with their use prescriptions other Dr. using Cooper’s that their continued use threatens DEA registration number. health, life, liberty, their their or their Cooper Dr. testified she had not continuing to prescribe patient to that prescriptions authorized these or the use the face of that kind of adverse informa- registration of her DEA number. Dr. coming tion back to the doctor is incon- Cooper learned her number had been practice sistent with the of medicine. used without her pa- authorization when a knowingly doing That constitutes harm tient came for a routine visit and told to a in an patient ongoing way.
Dr. Cooper that her name was on the B. During Webb Practices License Sus- patient’s prescription despite bottles their
pension Further, having never met. the bottles Cooper] “were dated before had start- [Dr. The Florida State Board of Medicine working” practice. ed at Webb’s medical suspended Webb’s medical license for 30 own, doing investigation After some on her days, 23, 2005, beginning April penal- as a Cooper complaint Dr. filed an official ty for Webb’s inappropriate prescribing of weight-loss drugs Viagra over the In- Florida State Board Medicine. patient after she became Webb’s Health behavior Care Fraudulent Claims C. Ross prescribed OxyContin. and he her Programs Benefit son, lost closely for her stopped caring as at trial indicated introduced Evidence and even weight, amounts of significant for office vis- claims that Webb submitted changes These were lost her business. 30-day during his sus- procedures its only family, to Ross’s but to evident not pharmacies to and caused submit pension outsiders as well. prescrip- on unauthorized claims based cases, Cooper Dr. saw a In some tions. husband, her Ross eventu- According to the claims submitted patient, but Webb oxycodone addicted to the ally became case, In another his own name. under it injected intrave- prescribed Webb 25 but back- patient April on Webb saw routinely for and re- nously. Ross asked April the claim to dated refills, despite early prescription ceived from Blue file that he Representatives notations Ross’s Webb’s Cross/Blue (the Florida, TRICARE health Shield early to issue refills. Over would refuse members), services plan for armed Ross, benefit became treating Webb course that contracted with Medi- companies seeing getting that Ross was aware that the insur- care and Medicaid testified doctors, on from other but relied her drugs they if claims knew pay ers would only see representations she would (or provided pre- were the services going forward. Webb written) physician’s were while a scriptions gave indication Pharmacists also Webb suspended. experts license prescription practices might that his be pa- should not see agreed physicians contributing drugs. misuse of Ross’s tients, prescriptions, or bill for office write However, pharmacist refused to when one suspended practice from the visits while early, too prescription fill a because was medicine. pharmacy called another to have the representatives company The insurance also con- prescription filled there. Webb similarly companies confirmed that their for Ross prescriptions tinued to call *7 pay not for medication that was would him pharmacy possi- after a alerted to the TRI- legitimate purpose. without medical bility may pre- have altered a Ross stated that “the representative CARE’s OxyContin. failed to scription for Webb physician ordering fact that the is a ser- pharmacy who a family contact a doctor prescription drug and that is vice or prescribing OxyContin him told was also a claim to causing to be submitted the U.S. for Ross. Lortab Government, that would be considered Although knew that Ross had Webb are saying same as these services endocarditis, hospitalized for a heart been medically necessary patient.” to treat the drug that can valve infection indicate IV D. Death of Patient Ross Victoria request medical records usage, he did hospitalizations. from her Those records patient
Before Victoria Ross first saw Webb, sup- she ran her own business and would have revealed that the cause family. her Before she first en- ported drug in fact Ross’s endocarditis was IV professionally, countered Webb Ross took However, usage. got when Ross out of the pain, Lortab for her back but neither the hospital prescribe and asked toWebb pain nor the interfered with her medicine hospi- her drugs prior same she was on to “ ability to function. talizations, had ‘no wrote that he Webb ” Ross was a problem with that’ because they at trial that Ross’s sons testified “responsible compliant patient.” changes appearance noticed her 2004, being early drugs prescribed absent from After Webb him. One of to office in the sum- Ross returned Webb’s previous Terri’s doctors testified that he of increased low- complaining mer of 2004 her practice had dismissed from his in the took no additional pain. er back Webb because he mid-1990s was uncomfortable history, simply prescribed but 28 tablets having patient. her as a The reasons for tablets of Percocet OxyContin mg, his discomfort included Terri’s seeking Xanax 2 mg, mg, 30 tablets of rooms, drugs emergency refusing highest strength, available and 30 tablets drug rehabilitation and other forms of Although referring he was not of Soma. help, inappropriately using narcotics. Ross, government’s specifically to ex- Webb, At her first officevisit with Terri that it pert explained dangerous pre- “reported problems, no medical except of drugs scribe the same amount to a migraines bipolar or manic depressive patient following gap between visits ... and reported disorder she to be on no without documentation of “someone else medicines.” In addition other medi- prescribing intervening period ... cines, prescribed five Oxy- tablets of patient [having] and the still the same mg. Pharmacy expert Contin 20 Paul pa- tolerance” because of the risk that “a Doering “OxyContin testified that is a ter- tient has lost their tolerance” for the medi- treating migraine rible choice” for head- cation, an which could cause accidental OxyContin’s aches because controlled re- overdose. good job lease does not do a combating the August prescriptions Ross filled the pain by migraines. acute caused Dr. Par- 16, August collapsed on 15 and 2004. Ross ran opined prescribing opiates to August on and died at the Fort discouraged treat headaches is because August Walton Beach Medical Center on opiates may cause another headache. medical examiner determined oxyco- that the cause of death was “acute frequently Terri and Kevin both re- Despite fact done intoxication.” occasion, quested early refills. one On heart, unhealthy had an Ross the medical refill, justify early his Kevin told Webb examiner determined that an accidental stealing that Terri was his medicines. Af- drug likely overdose the more cause of incident, stealing ter the Webb advised history long death because: of Ross’s Terri and Kevin not use each other’s drug abuse and Ross’s heart was medicines, prescribing but continued them rhythm restored to a normal after she mentioning narcotics without the issue collapsed, which is unusual cases of again. Both abused Morrises the Dura- heart death. Dr. Parran stated that *8 (fentanyl) gesic patch pre- that Webb prescription practices Webb’s as to Ross by poking patch scribed Kevin holes in the were “inconsistent with the usual course of squeezing and the substance into their practice appear[] medical to be for get high. mouths Webb knew that Ter- and, legitimate purpose other than medical C, ri hepatitis commonly had which most degree to within a reasonable of medical abuse, drug results from IV but did not certainty, direct [were] contributor[s] ask Terri how she had contracted the dis- death.” [Ross’s] signs abuse, ease. these Desрite drug prescribe Webb continued to controlled E. Death of Patient Terri Morris up substances to Terri until her death on first saw Trebble “Terri” Webb Morris 9, September 2003. (“Terri”) already in 2000. had Webb been (“Kev- husband, staggered Terri and Kevin their visits to treating her Kevin Morris in”), August they since 1999. Kevin abused the to ensure that would have a Webb medications], up until the stealing ri’s his September On steady supply of narcotics. 5, time of death.” prescribed alprazolam [Terri’s] Webb tablets, (Xanax), and 50 Darvocet 75 Soma Ortega of Patient Gena F. Death September to Terri. On Webb tablets alia, Duragesic prescribed, Ortega (“Ortega”) inter patient Gena Webb’s Kevin found Ter- to Kevin. When patches hygienist who had successful- was a dental of the Dura- body, she had one drug program ri’s dead a rehabilitation ly completed body, and he found gesic patches on her According Ortega’s sister-in- pinpricks in the trash with law, Ortega several more was “a got after she married Spinella, a detective with Stephen job them. very person, loved her professional Department, Beach Police the Fort Walton ... in her ... appearance, neat seeing name contacted Webb after Webb’s just spirits.” in good general seemed to be in Terri’s room. Webb pill Webb, on the bottles Ortega began seeing she be- After Spinella that he had no indi- told Detective moody, energy, had little and cоuld came sharing medications cation that Terri job. Ortega a had burn not hold down husband, that he had no indica- with her furniture in legs marks on her and on the suicidal, far tion that she was and that as ciga- from where she allowed the her home knew, Terri took the medications as Webb her smoking drop rettes she was from prescribed. mouth and smolder. toxicology report done after Terri’s Ortega pain for back in- Webb treated significant revealed levels of fenta- termittently July 2004 until her death nyl alprazolam in her blood. The April Ortega’s husband testified that the level of fenta- toxicologist appoint- testified to two of that he drove her her Webb, nyl in Terri’s blood indicated misuse of the during ments with which she was in- Duragesic patch, was consistent with office for than 15 minutes and Webb’s less contents, gesting injecting patch’s or directly pharmacy went to the afterwards. putting high a level of fenta- and that such 2004, Ortega In told Webb December body immediately nyl into the “would be many pills and that she had taken too varying fatal.” Terri’s blood contained prescription therefore had run out of her drugs, of other and the cause of amounts days early, phoned in a new ten Webb “complications polyphar- her death was 23, 2005, prescription for her. On March macy,” “multiple drug intoxication.” Ortega “‘requests noted that some Based on his of the two Morrises’ medication to unwind at the end of the review ” files, Dr. opined day,’ prescribed medical Dr. Parran so Webb her what mg “prescribing appears “whopping” to have been Parran described as Dr. Klonopin. opined done inconsistent with the usual course of dose of Parran practice day to have been at the end of the is not a appears “[u]nwind medical “certainly legiti- legitimate purpose.” diagnosis,” for other than medical and is purpose medical for a Schedule IV Importantly, prescribing played “the mate *9 contributory benzodiazepine prescribed.” Ortega in to be Morris’s] role [Terri April in early Dr. Parran further that obtained an refill from Webb death.” noted pain and her for a consult history “require[d] Terri’s and behavior 2005 Webb sent absence, May in After a five-month changing pre- intervention and—and a However, to Webb October scribing Ortega at that moment.” came back 2005, Klonopin absolutely prescribed un- and Webb her “prescribing Webb’s levels as before. changed reported after the husband and Lortab the same [Ter- opioids in the Dr. Rauck further testified that databases According pharmacy to prescribed pa- be for appropriately can contin- practiced, Webb area where Webb drug tients with abuse histories. Dr. a Ortega for on prescribe to Lortab ued pa- Rauck that did refer testified Webb April until 2007. That monthly basis pain manаgement tients clinics for generic day, prescribed also same Webb files, In review of treatment. his Webb’s April died on Ortega Endocet. Soma and Dr. Rauck did not see intent on Ortega’s Among things, other part get patients Webb’s his addicted to presence toxicology report showed narcotics. which result- hydrocodone alprazolam, specifically Dr. Rauck testified on each The medical synergistic ed in “a effect.” patients of the three whose deaths the cause of Orte- examiner concluded that implicated. opined Webb was He that hydroco- ga’s death was “toxic effects extraordinary Terri Morris had an level of essentially drugs,” and other which done died, fentanyl system in her when she accidentally choke on her her to caused high that a could not have come such level vomit. Dr. Parran testified own prescribed a He also noted dose. “prescribing appeared to be incon- Webb’s prescribe fentanyl did not for with the course of medical sistent usual Terri, husband, only but for her and testi- to have been for practice appeared fied that it was not unusual for Webb to purpose medical legitimate other than prescribed OxyContin have to treat Mor- [Ortega’s] factor contributing was a ris’s headaches. death.” Ortega, As to Dr. Rauck testified Gena evi- government’s At the close of the on thаt she had been “stable doses dence, acquittal, a motion for Webb made hydrocodone, so one would not have ex- did which the district court denied. Webb pected to have caused her death.” He renew this motion at the close hydrocodone that the levels of found stated evidence. in her blood at death should not have been compelling lethal. Dr. Rauck also found it G. Webb’s Trial Evidence sixty percent lesion of Ortega had first trial witness was Dr. Rich- Webb’s coronary artery forty percent one and a Rauck”). (“Dr. Rauck, Rauck Dr. ard L. coronary artery, lesion of another which he expert anesthesiology pain an man- possible reason for a cardiac posited was writing testified that Webb was agement, Ortega’s that could have caused event patients’ for prescriptions appropriate his death. conditions, prescribing prac- that his Dr. Rauck also reviewed Victoria Ross’s professional within bounds
tices were file, which he said demonstrated “narrow- Dr. Rauck stated that practice. of medical coronary that could ing arteries” [the] where he has testified for the cases possibly have caused her death. Dr. Department of Justice that other doctors opined “clearly Rauck that Ross had sus- conducted themselves outside the bounds infarction rather [sic] tained miocardial practice, experience it was his of medical acutely days or her within hours before not treat in- that the accused doctors did if ultimate death.” He also testified that In Dr. fections and other conditions. OxyContin “it prescribed Ross took her pat- opinion, prescribing Rauck’s [him] would be hard understand not fit those of other doc- terns did with Dr. that would be the cause of death.” pre- prosecuted inappropriately disagreed tors Rauck medical examin- *10 oxycodone that acute intoxication was pain controlled medications. er scribing death, substantially producing, the concluding contributed likely the cause of Ross’s conduct, death,” likely condition was a more and that “but for” his that her heart not have occurred. His cause. the death would instruction stated: He in his own defense. Webb testified In order to establish that a death other doctors patients stated that he took Defendant’s con- “resulted” from the see, very that he is unwilling to and were duct, prove government must be- also by his and trial. He frustrated arrest a reasonable doubt the Defen- yond anyone. never intended to defraud directly conduct and natural dant’s Ross that Victoria Webb did not know sequence produced or and continuous medicine, get going to other doctors substantially producing contributed heart treating and was not Ross for her death, so that it сan be said that Oxy- Ross problems. prescribed Webb conduct, “but for” the Defendant’s died, not shortly but did Contin before she occurred. death would have was. desperate realize how her situation if Ortega, As to she would not have died give The district court did not Webb’s drugs taken the amount of she had Webb proposed gave instruction but different prescribed prescribed her. Webb never charges on the counts. We review Morris, fentanyl to Terri and when he jury and district court’s instructions found out that she and her husband were instruction in the con- requested Webb’s drugs, “very he would have sharing had separately. prin- text of each statute (al- significant conversation” them cipal wording of the issue concerns the though he did not claim to remember such jury statutory instruction as to the terms specifically). a conversation §in “results from” contained 107) (Counts in” rested, 38 and and “results con- After the defense the district 1347(a) (Count 37). § tained in jury court instructed the on all counts. § III. JURY INSTRUCTIONS A. 21 841: and 107 U.S.C. Counts 38 841(b)(1)(C)provides Section for an earlier, charged As we noted Count 38 penalty dispensing for unlawful conspiracy unlawfully Webb with dis- of a controlled substance if death “results substances, tribute numerous controlled from the use of such substance.” oxycodone fentanyl, including and with 841(b)(1)(C). 1347(a) § U.S.C. Section (Terri Ross’s) Morris’s and Victoria provides for an enhanced oxycodone resulting from the use of health care fraud “if the violation results fentanyl, all violation of 21 U.S.C. 1347(a).6 death.” 18 U.S.C. 841(a)(1), (b)(1)(C), §§ and 846.7 Count charged unlawfully Webb with dis- requested jury instruction on pensing oxyco- the controlled substances 37, 38, the three death-results Counts— alprazolam, done and and with a death proposed instruc- (Victoria Ross’s) resulting from the use of government tion stated that must oxycodone, violation of 21 U.S.C. prove “directly” his conduct (b)(2), 841(a)(1), (b)(1)(C), §§ “in and 2. sequence produced!,] continuous trial, specify 6. At the whose time of 1347 had the same 7. The indictment does not drugs; (a) which death resulted from use of language, but did not have subsections does not even mention the names of vic- (b). legislative changes Later made what was tims. Evidence adduced at trial indicates 1347(a) 1347 now and added subsec- fentanyl that Morris died from the use of (b). tion oxycodone. Ross died from use of *11 injury a result of death or serious the language appli- the of the We start victim’s use of a controlled substance 841(a) that: states statute. Section cable dispensed or that has been distributed know- any person be unlawful “it shall Defendant, a more by the serious of- dispense[ ... ... intentionally ] ingly or ” committed, regardless fense is of wheth- 21 U.S.C. controlled substance.... er the defendant knew or should have 841(b) 841(a). an en- provides Section known that death would result. ... from “if death results penalty hanced requirement There is no substance,” as follows: use of such resulting from the use of the con- (b) Penalties dispensed trolled substance was a rea- ..., any provided otherwise Except as event, sonably or that foreseeable (a) this violates subsection of person who was the controlled substance as follows: shall be sentenced section cause of the death. This standard is that, upon finding by you but satisfied ... death or serious bodi- person such ingesting for the victims’ the controlled if indictment, the use such ly injury results charged substances to a term the victims would not have died. substance shall be sentenced twenty than imprisonment Therefore, of not less you are to determine as fol- lows: years or more than life.... added). (emphasis
21 U.S.C. the death of Whether Count 38 on dispute in this case centers Trebble Morris resulted from the use 841(b)(l)(C)’s whether fentanyl and whether the death of Victo- (1) jury merely to find requires the oxyco- ria Ross resulted from the use of use of the controlled sub- patient’s done that Defendant had caused to be Webb) (unlawfully prescribed by stance dispensed, between in or about Decem- (2) death; actual cause of or was the ber, 13, September 2002 and on or about proximately conduct caused the that the death was rea- death or least 107 the death of Whether Count sonably foreseeable Webb. from the use of Victoria Ross resulted (Counts 38 and As to the 841 offenses oxycodone that the Defendant caused to 107), court instructed therе the district dispensed, or between on be distributed foreseeability was no cause August or about 2004 and on or requirement, govern- and that instead the 16,2004. August about (had it not prove ment must that “but for” appeal, On Webb contends that for) ingesting the victim’s been in refusing the district court erred his indictment, drugs charged the vic- requested instruction and should have tim not have died. The district would that, responsible instructed to find Webb court’s instruction stated: deaths, “proof to find had
Similarly, it concerns as Counts actual cause and effect” between Webb’s patients’ provides the law that whenever own conduct and his deaths.8 give challenges his as those instructions are a correct statement 8. Webb both failure to omitted). and the instruction the district (quotation instruction marks of the law.” Id. gave We review a district court instead. We will reverse the district court's refusal to rejection proposed jury of a instruc- court’s "only incorporate requested instruction Merrill, 513 F.3d tion for abuse of discretion. substantially proffered if the instruction at 1305. "The district court has broad discre- correct, requested was not ad- instruction long formulating jury tion in instructions *12 1250 right sentencing to contest at “[ljegal that causation reserved
Webb submits
foreseeability)
a whether victim Carroll’s death resulted
cause and
is
(proximate
sub-
jurisprudence and from their distribution of controlled
principle
fundamental
of
sentencing
govern-
stances.
Id. at 141.10 The
part
it should have been
that
death resulted
proof
of
for all
three
court found
Carroll’s
ment’s burden
by
drugs brought
from the
defendant Pat-
Congress has not stated other-
deaths —
Id. at 141^42.
party.
terson to the
wise.”
argued
the defendants
that
join
appeal,
On
disagree. Rather we
several
We
requiring
the district court erred
our
sister
circuits
hold that
841(b)(l)(C)’s
to
that
government
prove
Carroll’s
requires
result of the de-
death was
foreseeable
only proof that the death resulted from the
fendants’
of controlled sub-
distribution
victim’s use of a controlled substance dis-
applying
pen-
the enhanced
stances before
pensed
the defendant. See United
841(b)(1)(C).
alty
§in
(1st
Id.
142-43.
Cruz,
De La
F.3d 121
States v.
514
“(1)
argued
defendants
the statute
Houston,
Cir.2008); United States v.
406
imposes
foreseeability
‘reasonable
(9th Cir.2005);
v.
F.3d 1121
United States
requirement,
death’
the Govern-
(8th
McIntosh,
Cir.2001);
1. United States v.
38 F.3d
seeability requirement, we need not ad-
(4th
1994)
Cir.
question
whether
dress
Carroll’s death
Patterson,
In
reasonably
Fourth Circuit held was
foreseeable” to the defen-
foreseeability
an
explained
reasonable
is not
dants.
Id. The Fourth Circuit
plain language
element of the death “results from” sen-
that “the
841(b)(1)(C).
indicate,
require,
§in
Pat-
tence enhancement
does not
nor does
terson,
sentence,
prior
applying
challenges the sentence McIntosh, v. United States finding that his not make a trict court did (8th 2001) Cir. cause of conduct was user’s death.” Id. McIntosh, Eighth similar- In Circuit concluded that the enhanced ly guidance,
Looking to Patterson
841(b)(1)(A)
foreseeability
did not have
Circuit]
“the [Fourth
Third Circuit stated
841(b)(1)(A)
requirement.11
or a
cause
McIntosh contended that
McIntosh,
permits
phetamine nor
that he had
[sic]
knowl-
foreseeability of death or serious bodily
edge
was being supplied
drug
she
with the
injury.” Id. at
Eighth
972-73. The
Cir-
by the others.” Id.
acknowledged
cuit
that “[o]ur conclusion
Despite the latter
findings,
two
“the dis-
that
the statute imposes
liability
strict
trict
subject
court concluded
upon
McIntosh was
McIntosh for Jessica’s death vitiates
to the enhancement because
played
argument”
he
[McIntosh’s]
that the enhanced
part
manufacturing
drug
only applies
[Jessica]
sentence
if the defendant in-
use,”
did
twenty
sentenced him to
tends to
knowingly
cause death or
risks
yеars’
imprisonment.
appeal,
Id. On
death. Id. at 974.13
841(b)(1)(A),
wording
§
11. The relevant
plea
agreement
F.3d at 970.
open
His
“left
applies
which
to different controlled sub-
for the district court’s determination at sen-
stances,
is the same
tencing
subject
whether McIntosh was
to an
841(b)(1)(C):
§in
enhanced sentence because of Jessica’s
(1)(A) In the case of a violation of subsec-
death.” Id. at 970-71.
(a)
tion
...
opined
13. Other
circuits have also
person
such
shall be sentenced to a term of
841(b)(1)(C) (or provisions
with similar lan
imprisonment which ...
if death or serious
guage)
liability regime.
creates a strict
See
bodily injury results
the use of such
Carbajal,
United States v.
283
years
substance shall be not less than 20
(5th Cir.2002) (interpreting sentencing guide
more than life....
line with similar "death ...
resulted from”
841(b)(1)(A)
added).
(emphasis
U.S.C.
language
determining
pled guilty
conspiracy
liability provision
ap
12. McIntosh
that it
to man-
"is
strict
McIntosh,
methamphetamine.
ufacture
plies
regard
princi-
without
for common law
Cruz,
penal-
before the enhanced
La
514 be foreseeable
v. De
States
United
(1st
2008)
Instead,
at 137.
ty provision applies.”
Id.
F.3d
Cir.
required
under the death-en-
“[w]hat
Cruz,
First
also
La
Circuit
In De
government
hancing statute is
841(b)(l)(A)’s enhanced
concluded
cause-in-fact,
is,
that the dece-
prove
require
government
penalty does
by
death was caused
fact
his or
dent’s
Cruz,
La
foreseeability. De
prove
drugs that were
her use of
distributed
juryA
convicted defendant
at 138.
F.3d
by
the defendant himself or
oth-
either
to distribute
conspiracy
La Cruz of
De
which the defendant
conspiracy
ers
with intent to dis-
possession
heroin
In De La
part.”
was a
Id. at 138.
Cruz’s
heroin,
of 21
in violation
U.S.C.
tribute
case,
properly
“the district court
instruct-
841(a)(1),
§§
Id. at 125. De La Cruz
required proof
Tracy,
sold some of that
ed the
about
heroin to
who
sold
cause-in-fact, and-following
in-
Flynn,
sold some to Wallace.
the court’s
heroin to
who
in his home of heroin
jury specifically
later died
found that
Wallace
structions-the
trial, the
court
at 126. At
district
ingesting
use. Id.
died as a result of
heroin
Wallace
jury that it:
instructed the
during the course of
that was distributed
*15
doubt,
La
find,
charged
[De
the
offenses Defendant
beyond
reasonable
[M]ust
heroin,
Tracy
this
ingested
through
to Wallace
Cruz]
that Wallace
Id.;
Flynn.”
was a “but for” cause Wallace’s
see
States v. Hat-
heroin
United
(7th
death,
Cir.2010)
945,
that this heroin was distrib-
947-48
field, 591 F.3d
conspiracy charged
part
uted as
of the
types of
(discussing different
causation
through De-
passed
in Count One
noting
“parties agree
the
the statuto-
part of the distribu-
fendant’s hands as
ry
required
govern-
from’
the
term ‘results
in
Two.
charged
tion
Count
ingestion
of the defen-
prove
ment to
drugs was a ‘but for’ cause of the
dants’
Id. at 137.
bodily injury” and “[t]he
deaths and the
argued that the
De La Cruz
appeal,
On
injury
need not have been fore-
that, be-
jury should have been instructed
seeable”).14
finding
eligible
him
for the enhanced
fore
that Wallace’s death
penalty, it had to find
Houston,
v.
406 F.3d
5. United States
Re-
to him.
Id. at 136.
was foreseeable
(9th
2005)
1121
Cir.
claim, the First Cir-
jecting De La Cruz’s
Houston, the Ninth
concluded
In
Circuit
“[njothing
language
cuit noted
required
cause is not a
that a death must
suggests
of the statute
part
charge
added
of the
which stated
pies
proximate cause or reasonable foresee-
Rebmann,
had to have been "a
controlled substances
ability”);
v.
226 F.3d
United States
Cir.2000)
"although
521, 522,
(6th
that resulted in death” and
(indicating
factor
is,
face,
they
primary
be the
cause of death
841(b)(1)(C)
need not
...
"[o]n
dicta that
its
played
part
they
at least have
effect,
...
must
respect
liability
with
a strict
statute
omitted).
(quotation
the death.” Id.
marks
injury
arising out of
or death of another
concluded that:
The Seventh Circuit
drugs"), overruled on other
the distribution of
Leachman,
grounds by
v.
United States
objection
The defendants’
to the instruc-
377,
Cir.2002).
(6th
F.3d
385 n. 9
was well taken. All that would have
tion
satisfy
it was to eliminate
been needed
alleged
statutory language,
not that
14. The error
was
to the
the addition
Hatfield
statutory
charged
good
lan-
the district court
which was a
deal clearer than the
government
prove
probably
enough.
Elab-
guage that the
must
addition and
clear
ingesting
orating
makes it less rather
a con-
on a term often
victim died "as a result
by the defen-
than more clear....
trolled substance ... distributed
Id. at 949.
F.3d at 947. The error was
dants.” 591
841(b)(l)(C)’s
pen-
background,
element of
With this
we turn to the
Houston,
alty.
tributing methadone to who Jury Instruction at Webb’s Trial died. Id. at 1121. The district court in- starting point “The all statu structed the that “the Government tory interpretation language is the required prove beyond a reasonable statute itself....” Med. Transp. Mgmt. prox- that ‘the defendant’s act was a doubt Comm’r, Corp. v. 506 F.3d ” imate cause of ... Bradford’s death.’ Id. (11th Cir.2007) omitted); (quotation marks at 1123. Garner, (11th Harris v. The Ninth Circuit determined that “[t]o Cir.2000) (en banc) (“[C]ourts should al the extent that suggested this instruction ways begin process legislative in that Bradford’s death had to have been a terpretation ... with the words of the foreseeable result of [defendant] Houston’s statutory provision.”). “[0]ur task is to act, required the instruction the Govern- language determine whether the at issue prove ment' to more than the statute re- plain has a and unambiguous meaning quires, and was therefore in error.” Id. regard dispute to the in the case. (footnote omitted). The Ninth Circuit rea- inquiry Our must if statutory cease soned that “[t]he addition of language unambiguous and the statuto necessary cause as an element for invoking ry scheme is coherent and consistent.” twenty-year minimum sentence de- Transp. Mgmt. Med. Corp., 506 F.3d at scribed in is inconsistent *16 (quotation marks and citation omit statutory with the language, our circuit’s ted). precеdent, related and the conclusions of 841(b)(1)(C) Here, § imposes an' en- every other federal court of appeals to penalty hanced whenever “death or seri- consider the issue.” Id. The Ninth Cir- bodily injury ous Patterson, results from the use of’ McIntosh, cuit cited and Robin- the controlled support son to substance. 21 U.S.C. its conclusion that neither 841(b)(1)(C). § foreseeability agree nor We with our proximate cause is re- sister quired support plain the circuits that the unambiguous 841(b)(1)(C). Houston, 841(b)(1)(C) § language § See 406 F.3d at contains no foreseeability proximate or require- cause Cruz, 138; ment. De La 514 F.3d at (1) that, The Ninth Circuit added “[a]ll Houston, 1122; McIntosh, 406 F.3d at that is necessary statutory under the lan- 972; Robinson, 236 F.3d at at F.3d guage is that ‘death ... results’ from the 826; Patterson, 38 at F.3d 145. The (2) 841(a)(1),” § offense described in government not required prove a required by “[c]ause-in-fact is the ‘results’ defendant’s conduct proximately caused cause, language, but at least the victim’s death or that the death was insofar requires as it that the death have reasonably foreseeable to the defendant. foreseeable, been is not a required ele- Rather, 841(b)(1)(C), § govern- under the ment.” Id. at 1125. The Ninth Circuit prove only ment must the death determined the district court errone- “results ously from” the victim’s use of a con- jury instructed trolled substance required charged cause was the indict- element 841(b)(1)(C), § apply language but ment. We found the error harm- less upheld defendant statute as requires Houston’s con- written. The statute viction and sentence. Id. 1125-26. a cause-in-fact connection between the delivery in connection with of or drugs and death. ingestion of the victim’s benefits, items, care payment for health the defendant’s require not It does services, ... imprisoned shall be death. or cause the proximately conduct years.... the viola- more than [I]f case, we find no in Webb’s Accordingly, death, person tion results in such shall jury instruction in the district court’s error imprisoned years ... term of be 841(b)(1)(C), any error in § nor regarding or for life.... re- court’s refusal of Webb’s the district added). 1347(a)(emphasis 18 U.S.C. court The district quested instruction. that the instructed properly 1347(a) offense in As to the Count that, finding upon satisfied standard jury that a the district court instructed con- ingesting for the victims’ but committed when more serious offense is charged in the indict- substances trolled (1) is a result of the victim’s use of a death ment, not have died. the victims would controlled substance and is connected jury it had charge for” told This “but of, for, delivery payment to the or health- for) (had it not for” been to find “but in furtherance of the defen- care services have ingestion, no death would victim’s defraud, regardless of dant’s scheme to “results statutory term occurred. whether Webb knew or should have known requirement is a cause-in-fact from” in- would result. The court’s that death Thus, as charge. the “but for” was met struction stated: 841(b)(1)(C), court’s district pertains to Count the law As correct, and re- were instructions provides that whenever death or serious were not. quested instructions the victim’s use of a injury is a result of and is connected to controlled substance § 1347: Count 37 B. 18 U.S.C. for, of, delivery payment health charged Webb with Count benefits, items, or services in fur- care (Gena fraud and with healthcare of the Defendant’s scheme therance fraud, in vio resulting from that Ortega’s) defraud, a more serious offense is com- *17 §§ 1347 and Webb lation of 18 U.S.C. mitted, regardless of whether the Defen- foreseeability and again argues that once have known that dant knew or should required elements of cause are proximate death would result. 1347(a)’s turn to penalty. § enhanced We of the statute. Section language Therefore, as you are to determine 1347(a) penalty an enhanced provides for follows: fraud “if the violation results for health in Count 37 the death of Whether death,” follows: as of Ortega resulted from the use Gena (a) willfully ex- knowingly and Whoever in connection controlled substances execute, ecutes, attempts or to scheme with the health care fraud violation or artifice— May on charged Count any health care benefit to defraud instruction was errone- argues this or program; ous. obtain, false or by means of 841(b)(1)(C), Congress § did representations, Similar pretenses, fraudulent foreseeability proximate or money or not insert any of the promises, or 1347(a)’s § into requirement cause the cus- by, owned or under property statutory Examining the of, any health care enhancement. tody or control principled way no language, we see program, benefit conduct, distinguish “results in” lan- materials “and as a result of such between the 1347(a) §in from” guage directly proximately personal and the “results or causes 841(b)(1)(C), § language in which al- injury inju- we or creates a substantial risk of ready have not contain ry any person” added)); determined does (emphasis id. 844(f)(3) foreseeability proof proximate of or cause (setting § punishment enhanced required pen- manufacture, as elements of the enhanced importation, for or distribu- Rather, alty. language the results in each explosive tion of materials “and as a result requires nothing statute more than a caus- conduct, of directly proximately such or factually.- al connection any person” (emphasis causes the death of 844(i) added)); § (setting id. enhanced foreseeability proximate The lack of or punishment for damaging destroying, or 1347(a) §in language telling cause be- by means of fire or an explosive, any cause Congress has included such lan- vehicle, building, or other real personal or statutes, guage numerous other criminal “if property personal any injury results to including required statutes where the con- person, including any public safety officer nection is between the defendant’s offense performing proxi- duties as a direct or bodily conduct and death or injury. See mate result prohibited by conduct this 247(d)(2) § (setting U.S.C. enhanced of added)); (emphasis subsection” id. punishment damaging religious for proper- 2248(b)(3)(F), §§ 2259(b)(3)(F), ty obstructing or free exercise where 2327(b)(3) 2264(b)(3)(F), (mandating resti- “bodily injury any person, results to in- by tution for losses “suffered the victim as cluding any public safety perform- officer a proximate result (empha- ing duties direct or result offense” 3286(b) added));15 § sis id. (permitting section, prohibited by conduct this charges on terrorism offenses at time by violation is means of fire or an “if the commission of such offense resulted explosive” added)); (emphasis id. in, or created a 247(d)(3) of, risk (setting punishment enhanced foreseeable bodily injury” or serious (emphasis add- damaging religious property or ob- 3663A(a)(2) ed)); (mandating id. restitu- structing “bodily inju- free exercise where persons “proximately tion for harmed as ry any person, results to including any a result the commission of an offense” public safety officer performing duties as 3771(e) added)); (emphasis (defining id. a direct or result conduct as, alia, “crime victim” person inter “a prohibited (emphasis this section” add- ed)); 844(d) directly proximately harmed as a re- id. (setting рun- sult of ishment the commission of a importation, manufacture, Federal of- *18 added)); materials, (emphasis fense” explosive distribution of see also id. where 38(b)(2) § “personal injury (setting any person, penalty results to in- enhanced for cluding any parts fraud related to public safety perform- officer aircraft where “the ing part duties a to which proximate direct or the offense is related is the result prohibited proximate conduct by this cause of a malfunction subsection” or fail- of 844(f)(2) added)); (emphasis § (setting bodily injury” id. ure that results in serious added)); 38(b)(3) punishment § enhanced importation, (emphasis id. (setting manufacture, or distribution of explosive for fraud related to air- McDaniel, covers, United language States v. of section which inter Cf. (11th Cir.2011) (construing alia, 1208-09 by proxi- 'losses suffered victim as ’’ § rejecting U.S.C. govern- 2259—and (quoting mate result offense' argument proximate ment’s cause is not 2259(b)(3)(F))). § required contrary plain it is to the —“because death, in it had resulting fraud Martinez of part “the to which where parts craft fraud was the cause to find that Martinez’s proximate is the is related offense in death of the two results cause of the “proximate or failure that of a malfunction add- the enhanced (emphasis imposing before any person” patients” death of ed)). § Id. at 318. Mar- penalty under “that the Government failed argued tinez in Patter- noted the Fourth Circuit As jury could find that thаt a rational to show place to son, how understands “Congress deaths.” Id. at 317. he caused their into foreseeability requirement reasonable Thus, examined “the the Sixth Circuit provision sentencing enhancement required to show of causation standard past.” in the Patter- done so explicitly has ” in fraud death’ ‘resulted] that such (discussing son, at 145 n. 7 F.3d there sufficient [was] “whether determine 848(m)(4)). has As this Court U.S.C. Mar- support [Defendant] evidence knows how Congress “[w]here emphasized, as to these two counts.” tinez’s conviction to, its chooses not something but say (first original). in Id. alteration Griffith, 206 controlling.” In re silence Cir.2000) (en banc) (11th 1389, 1394 F.3d first noted that “[sec- The Sixth Circuit (alteration marks quotation in original does not indicate the level tion 1347 omitted). required support application causation but other federal penalties, of its enhanced con- that the cause-in-fact recognize We certain punishment when statutes elevate is between nection ” ‘result in death.’ Id. After the willful crimes substance and the controlled use of and cir- 1347(a), reviewing de- several similar statutes death, §in between the them, interpreting Howev- and the death. cuit-level decisions conduct fendant’s foreseeability proxi- concluded “that er, no Sixth Circuit there still is At appropriate apply statute. standard to language cause either cause is the mate 1347(a) bottom, require the ex- determining does not whether a health care fraud ” cause as formulated Id. at 318-19. acting legal proximate ‘results death.’ violation conclusion, however, And proposed charge. in his by Webb The Sixth Circuit’s in the district court’s was no error there on these three factors: was based may apply the enhancement charge of criminal law” principle “fundamental of whether the Defendant “regardless all responsible is held person that “a have known that death knew or should proximately caused his consequences result.” would conduct”; “Congress was criminal legal causation principles aware of when recognize relies on Unit- also We health care fraud that a determined (6th Martinez, F.3d 301 v. ed States warrants results [that] violation Cir.2009), Martinez where the defendant (3) notably, penalty”; an enhanced of, alia, two counts of convicted inter challenge district parties [did] “the resulting in the death health care fraud cause court’s determination in violation of 18 U.S.C. patients, two standard of causation.” appropriate is the district F.3d at 306.16 The 1347. 588 *19 (alteration that, quotation and marks Id. at 318 the to convict court instructed Martinez, injections were pain- ing appreciably more than anesthesiologist, an ran 16. advisable, Parma, trial, necessary provid- medically and At management clinic in Ohio. patients ing with treatments theory Martinez аt-risk government’s was that dependent pain- pa- them on him for endangered would leave "engaged and his in fraud Martinez, examinations, 588 suppressant prescriptions.” ig- by omitting physical tients addiction, giv- at flags’ painkiller F.3d 307. noring 'red of 1258
omitted).
case,
Upholding
particular
type
Martinez’s convic-
of health care
fraud
penalties,
tions and the enhanced
the Sixth
involved and its direct connection
death,
charged
any
found sufficient evidence demon-
we conclude
Circuit
1347(a)
(1)
§
in
charge
claimed error
strated that Martinez
committed health
1347(a)
harmless.
In
hurriedly
in
in-
some cases the
giving patients
care fraud
(2)
may
health care fraudulent conduct
far
jections
be
prescriptions
that his
pa-
too attenuated from the fact of the
proximately
pa-
actions
caused his two
impose liability
tient’s death to
on the de-
Ultimately,
tients’ deaths.
Id.
322-23.
Houston,
fendant. See
406 F.3d at
n.
materially distinguishable
Martinez is
be-
That
5.
is not the case here.
parties
“challenge
cause the
there did not
the district court’s determination that
IV.
INEFFECTIVE ASSISTANCE
appropriate
cause is the
stan-
and,
dard of causation”
as the evidence A.
Principles
Ineffective Assistance
support
was sufficient to
Martinez’s con-
Webb also claims that his trial
victions even under the more stringent
performance
counsel’s
was deficient
standard,
proximate cause
the level of cau-
trial counsel failed to make appropriate
required by
sation
the statute was not
acquittal
motions for
at the
close
evi
dispositive
event. Id. at 318.17
argues
dence. He
that the evidence was
convictions,
insufficient to sustain his
Finally, although may
have been
acquittal
the motions for
would have
prudent
charge exactly
more
defendant
granted.
been
We review Webb’s insuffi
Webb’s “violation results in
lan
death”
ciency of the
through
evidence claim but
statute,
guage
the district court did
the lens of his ineffective assistance
charge
fact
the death must be
claim.18
of,
delivery
“connected to the
or payment
for,
benefits, items,
health care
or services
prevail
In order to
on an inef
scheme
claim,
fective
furtherance
assistance
Defendant’s
defendant must
added).
(Emphasis
Further
(1)
demonstrate both that
per
defraud.”
“counsel’s
more, there was overwhelming evidence
(2)
deficient,”
formance was
“the defi
type
that the
of health care fraud here
performance
cient
prejudiced the defense.”
involved
prescribing
controlled
668,
Strickland v. Washington, 466 U.S.
substances for
than legitimate
other
medi
687,
2052, 2064,
104 S.Ct.
1259 regard to whether the death or cannot without if the defendant prong formance reasonably foreseeable to the injury was prong, or vice versa.” prejudice meet appeals As all of the courts of defendant. omitted)). (citation considered the have con- which have issue overwhelming evi Given cluded, that is what the literal text of the above, we conclude detail dence outlined reading and that literal is statute indicates presented sufficient government with the context entirely consistеnt all of Webb’s convic to sustain evidence my the statute is found. As col- which if acquittal, even and that motions tions acknowledge, leagues made, Accordingly, would have failed.19 applying are a statute deal- [here] [W]e prong, performance not reach the we need problem, with a discrete the distri- ing event, as, preju suffered no any substances, products bution controlled in not performance from his counsel’s dice Congress recognized which will some at the close acquittal motions for making bodily inju- cases cause death or serious of the evidence. short, Congress recognized In ry. product in the the risk is inherent CONCLUSION V. who provided persons thus it dis- reasons, we affirm all of these For it It peril. tribute do so their and sentences. convictions a Congress obvious intended such 20-year mandatory mini- case that AFFIRMED. apply mum would if death or serious STAPLETON, Judge, Circuit bodily injury resulted from the use of concurring dissenting: regard without for com- the substance concepts. law cause mon I concur in all of the exception, one
With Robinson, States v. United In by my colleagues. conclusions reached Cir.1999) (footnote omitted). (3d 831 pen- that the enhanced agree I particular, provided by U.S.C. alties 18 of the Section 1347 of Title United whenever, following an imposed Code, however, to be are does not deal with a States of a controlled sub- in- problem arising products unlawful distribution discrete stance, injury of serious volving the use of that substance becomes an inherent risk Rather, provides an en- injury or serious or death.1 cause of death but/for any defraud health care benefit support evidence is sufficient to 19. "The if, viewing the in the program; after evidence conviction or any prosecution, obtain, light favorable to the most of false or fraudu- means have trier of fact could found rational prom- pretenses, representations, or lent beyond the crime a rea- essential elements of ises, any money property or owned Klopf, States v. sonable doubt.” United of, custody by, or control or under (11th Cir.2005) (quotation F.3d program, care benefit health omitted). determining whether marks “In delivery payment in connection with the of or supports a defendant’s sufficient evidence conviction, items, services, benefits, for health care or light we view the evidence in the imprisoned shall be fined under this title or government draw to the most favorable years, more than 10 or both. If credibility all reasonable inferences (as bodily injury violation results in serious jury's in favor of the verdict.” United 1089, choices title), such defined in section 1365 of this Chirinos, (11th F.3d States v. person fined under this title or im- shall be 1997). Cir. both; years, prisoned not more than 20 or death, 1347(a) if the violation results in such provides: 1. Section title, im- person be fined under this or executes, shall knowingly willfully Whoever life, execute, years prisoned any term of or for or attempts a scheme or arti- both. fice— *21 1260 Congress provided if that “when the that [a for health care fraud
hanced scheme of the defendant result- resulting may pun- fraudulent death be violation] bodily injury. or serious Sec- ed death by imprisonment, must [a court] ished life variety applies tion 1347 thus to a wide of fully cognizant consider it to have been of economically motivated health care activi- Id. principles legal of causation.” relationship ties and focuses on the be- Marler, v. 756 F.2d (quoting United States the defendant’s conduct and the tween (1st Cir.1985)). 206, 216 reason, I consequences thereof. For this Nothing the text or context of section agree with the conclusion of the Sixth Cir- legislative history 1347 or its counsels cuit of in United States v. Appeals Court against giving concept injury of result- (6th Martinez, 301, Cir. 588 F.3d 318-19 statutory ing from the violation its tradi- 2009), proximate appro- “that cause is the I scope, tional and would do so. priate apply determining standard ‘re- whether health care fraud violation Contrary sugges- to the Government’s ” sults in death.’ tion, I am unable to conclude charge District Court’s erroneous was only of The Martinez Court is the court beyond harmless a reasonable doubt. previously appeals that has addressed the by § required causal cоnnection 1347. It Accordingly, Appellant’s I would reverse correctly points out that this section is not conviction on 37 affirm on all Count unlike a number of other statutes which other counts. impose punishment when the constituting conduct the defendant’s viola- bodily
tion “results” in death or serious
injury, citing particular Rights the Civil
Act, 241, 245, §§ 242 18 Ú.S.C. Act, Housing
the Fair 42 U.S.C. 3631(a).2
§ Based on its review of the law,
case the Martinez Court found generally be a applicable “fundamental SERRANO, Jose Garcia principle criminal a “person law” that Plaintiff-Appellant, responsible held all consequences prox- v. imately caused his conduct.” Id. at 315 GENERAL, Secretary, U.S. ATTORNEY (quoting Wiegand, United States v. No. Department of 93-1735, 714347, U.S. Homeland Securi- *2-3, 1994 WL 1994 ty, (6th Alejandro Mayorkas, Director, 37209, U.S.App. at *7 U.S. LEXIS Cir. 1994)). Moreover, Citizenship Immigration Services, the Court reasoned felony justified injury Court cited several cases from crime is if was a Martinez addressing analogous other circuits statutes. foreseeable result of the” defendant’s viola- Marler, 206, 245(b)); See United States v. F.2d 756 tion of 18 U.S.C. United States v. (1st Cir.1985) Harris, 1095, (4th Cir.1983) (holding 215-16 that 18 U.S.C. 701 F.2d requirement punish- (holding language 242’s for enhanced that the "if death results” requires only ment is met when the willful vio- of 18 defendant's U.S.C. that death is rights "proxi- naturally lation the civil statute is foreseeable and results from violat- death, Guillette, statute); ing mate cause” of the and that victim's United States v. (2d Cir.1976) (holding cause can be demonstrated where F.2d that life imprisonment may imposed the "natural and foreseeable” re- be if death re- conduct); sult of the defendant's United 241 when States sults from violations 18 U.S.C. Woodlee, (10th v. Cir. violation of that statute is a defendant's 1998) death). (holding bodily injury that "the element cause victim's