United States v. 2005-05-09 | 04-30216 | USA VHOUSTON | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA, No. 04-30216
Plaintiff-Appellee, D.C. No.
v.  CR-03-00037-SEH
ROSEMARY MACDONALD HOUSTON, OPINION
Defendant-Appellant. 
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Argued and Submitted
April 4, 2005—Seattle, Washington
Filed May 9, 2005
Before: Ronald M. Gould, Richard C. Tallman, and
Johnnie B. Rawlinson, Circuit Judges.
Opinion by Judge Tallman
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COUNSEL
David F. Ness, Assistant Federal Defender, Federal Defenders
of Montana, Great Falls, Montana, for the defendant-
appellant.
Joseph E. Thaggard, Assistant United States Attorney, United
States Attorney’s Office, Great Falls, Montana, for the
plaintiff-appellee.
OPINION
TALLMAN, Circuit Judge:
Rosemary MacDonald Houston was convicted of distribut-
ing methadone to Trina Bradford which resulted in Bradford’s
death. 21 U.S.C. § 841(a)(1), (b)(1)(C).1 Houston challenges
the sufficiency of the evidence supporting her conviction, and
particularly protests being held responsible for a death that
she claims was an unforeseeable suicide. We conclude that
the plain language of the statute establishes that although
cause-in-fact must be proven, foreseeability is not an element
of the crime, and that sufficient evidence supports the jury’s
verdict as to the remaining elements. We have jurisdiction
over this federal crime and affirm.
1In the remainder of this Opinion, “§ 841” refers to Title 21 of the
United States Code, section 841.
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I
On October 15, 2001, Trina Bradford was found dead in
her home on the Blackfeet Indian Reservation in Browning,
Montana. Subsequent forensic investigation revealed that
Bradford had numerous controlled substances in her blood
and urine, including a lethal concentration of methadone. The
methadone was determined to have come from a prescription
bottle bearing the defendant’s name that was found at the
scene of Bradford’s death.
Houston was indicted for distribution of a controlled sub-
stance resulting in death under § 841(a)(1) and (b)(1)(C). She
was convicted after a jury trial and sentenced to 276 months
imprisonment and five years of supervised release.
II
The Government was not required to prove that Bradford’s
death was reasonably foreseeable by Houston in order to
obtain the heightened minimum sentence authorized by
§ 841(b)(1)(C). The statute under which Houston was con-
victed makes it unlawful to “knowingly or intentionally . . .
distribute . . . a controlled substance” and provides a height-
ened sentence “if death or serious bodily injury results from
the use of such substance[.]” § 841(a)(1), (b)(1)(C). To obtain
a conviction under § 841(a)(1), the Government was required
to prove that 1) Houston knowingly delivered methadone to
Trina Bradford and 2) Houston knew it was methadone or
some other prohibited drug. To obtain the heightened mini-
mum sentence described in § 841(b)(1)(C), the Government
also had to prove that the methadone Houston delivered to
Bradford actually caused Bradford’s death. The Government
was not required to prove foreseeability as an element of the
drug distribution crime.
The district court correctly instructed the jury as to the
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requirements for conviction under § 841(a)(1),2 but its instruc-
tion regarding § 841(b)(1)(C) was in error.3 The district court
improperly instructed that the Government was required to
prove beyond a reasonable doubt that “the defendant’s act
was a proximate cause of Trina Bradford’s death.” To the
extent that this instruction suggested that Bradford’s death
had to have been a foreseeable result of Houston’s act,4 the
2The district court properly instructed that:
In order for the defendant to be found guilty of this charge, the
government must prove each of the following elements beyond
a reasonable doubt: First, the defendant knowingly delivered
methadone to Trina Bradford. Second, the defendant knew it was
methadone or some other prohibited drug.
3Although the Government did not object to the district court’s jury
instruction below, we exercise our discretion to consider whether the oper-
ation of § 841(b)(1)(C) depends upon proof that death was reasonably
foreseeable because we believe that answering this purely legal question
is necessary to fairly resolve this appeal. See United States v. Patrin, 575
F.2d 708, 712 (9th Cir. 1978) (noting that a court of appeals may exercise
its discretion to consider an issue if it “is purely one of law” and “does not
affect or rely upon the factual record developed by the parties”); see also
United States v. Soler, 275 F.3d 146, 152 (1st Cir. 2002) (describing the
“question of whether the operation of section 841(b)(1)(C) depends to any
extent upon proof that death was reasonably foreseeable” as “a purely
legal issue”).
4It is not completely clear that in instructing the jury that proximate
cause was a necessary element, the district court was requiring the jury to
determine that Bradford’s death have been foreseeable to Houston. This
is largely because the term proximate cause is not well defined. See Blue
Shield of Va. v. McCready, 457 U.S. 465, 478 n.13 (1982) (“[T]he princi-
ple of proximate cause is hardly a rigorous analytical tool.”). The district
court’s further instruction about proximate cause, that it was a cause
“which played a substantial part in bringing about Trina Bradford’s death,
so that the death was a direct result or a reasonably probable consequence
of the defendant’s act[,]” did not specifically mention foreseeability,
except to the extent that a foreseeability requirement is inherent in the
“reasonably probable consequence” language. However, proximate cause
is often interpreted to include a requirement that the resulting harm was
foreseeable to the wrongdoer. See, e.g., Lawrence v. United States, 340
F.3d 952, 957 (9th Cir. 2003); United States v. Hanousek, 176 F.3d 1116,
1123 (9th Cir. 1999) (“To prove proximate cause, the government must
establish that the harm was a foreseeable result of the conduct.”).
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instruction required the Government to prove more than the
statute requires, and was therefore in error. However, for rea-
sons discussed further below, we find that the district court’s
error was harmless and did not affect Houston’s substantial
rights.
A
[1] Proximate cause is not a necessary element of every
crime. Although we noted in United States v. Main, 113 F.3d
1046 (9th Cir. 1997), that “[a] basic tenet of criminal law is
that the government must prove that the defendant’s conduct
was the legal or proximate cause of the resulting injury[,]” id.
at 1050 (quotation marks omitted), it was important in Main
that proximate cause was “implicit in the common under-
standing of the crime” at issue (involuntary manslaughter). Id.
(citing United States v. Keith, 605 F.2d 462, 463 (9th Cir.
1979)). Main and the cases upon which it relied involved
crimes such as involuntary manslaughter and conspiracy that
impose criminal culpability only when the consequences of
the criminal act are reasonably foreseeable. See id.; United
States v. Spinney, 795 F.2d 1410, 1415 (9th Cir. 1986) (con-
spiracy to assault); United States v. Keith, 605 F.2d 462, 463
(9th Cir. 1979) (involuntary manslaughter). Main’s holding
does not extend to cases, such as this one, where foreseea-
bility is not “implicit in the common understanding of the
crime” being prosecuted. See Main, 113 F.3d at 1050.
B
The addition of proximate cause as an element necessary
for invoking the twenty-year minimum sentence described in
§ 841(b)(1)(C) is inconsistent with the statutory language, our
circuit’s related precedent, and the conclusions of every other
federal court of appeals to consider the issue.
[2] The plain language of § 841(b)(1)(C) demonstrates that
proximate cause is not a required element. Congress specified
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that the heightened sentence would apply “if death . . .
results” from the distribution of a controlled substance. This
passive language unambiguously eliminates any statutory
requirement that the death have been foreseeable. According
to its language, as long as death “results” from the use of a
described controlled substance, the person convicted of dis-
tributing the substance “shall be sentenced to a term of
imprisonment of not less than twenty years or more than life.”
Id.
We have previously considered whether foreseeability is
required under another subsection, § 841(b)(1)(A)(ii), which
imposes a twenty-year statutory minimum for possession of
five kilograms or more of certain controlled substances.
United States v. Mesa-Farias, 53 F.3d 258 (9th Cir. 1995). In
Mesa-Farias, we held that § 841(b)(1)(A)(ii) was applicable
“regardless of whether the total amount was foreseeable.” Id.
at 260. In so doing, we limited to conspiracy cases our previ-
ous holding in United States v. Becerra, 992 F.2d 960 (9th
Cir. 1993), which required that the quantity of drugs be fore-
seeable for § 841(b) to apply. Id. We held that a defendant
was liable for the sentencing enhancement described in
§ 841(b)(1)(A)(ii) whether or not he could have reasonably
foreseen the amount of drugs in his possession. Id. We see no
reason to treat differently § 841(b)(1)(C), the sentencing
enhancement at issue in this case, from the Mesa-Farias
panel’s treatment of a related subsection, § 841(b)(1)(A)(ii).
[3] Other circuits that have considered the question have
reached the same conclusion. See Soler, 275 F.3d at 152-53;
United States v. McIntosh, 236 F.3d 968, 972-73 (8th Cir.
2001); United States v. Robinson, 167 F.3d 824, 830-32 (3d
Cir. 1999); United States v. Patterson, 38 F.3d 139, 145-46
(4th Cir. 1994). In Patterson, the Fourth Circuit observed that:
The statute puts drug dealers and users on clear
notice that their sentences will be enhanced if people
die from using the drugs they distribute . . . . Where
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serious bodily injury or death results from the distri-
bution of certain drugs, Congress has elected to
enhance a defendant’s sentence regardless of
whether the defendant knew or should have known
that death would result.
38 F.3d at 145 (internal citation omitted). The Third Circuit
agreed with Patterson in its Robinson decision, noting that
Congress’s language is “plain and unambiguous[.]” 167 F.3d
at 830. The Eighth Circuit found that “giving effect to [the
statute’s] plain meaning prohibits us from superimposing
upon the statute a foreseeability or proximate cause require-
ment.” McIntosh, 236 F.3d at 972. Finally, in Soler, the First
Circuit described the statute as “a rule of strict liability[.]”
275 F.3d at 152.5
C
[4] Requiring that the death have been foreseeable before
imposing the enhancement described in § 841(b)(1)(C) is
inconsistent with the plain language of the statute and with
our circuit’s prior treatment of § 841(b)(1). We therefore join
our sister circuits in holding that proximate cause is not a
required element for conviction and sentencing under
§ 841(b)(1)(C). All that is necessary under the statutory lan-
guage is that “death . . . results” from the offense described
in § 841(a)(1). § 841(b)(1)(C). Cause-in-fact is required by
the “results” language, but proximate cause, at least insofar as
it requires that the death have been foreseeable, is not a
required element.
5Because we recognize there may be some fact scenarios in which the
distribution of a controlled substance is so removed and attenuated from
the resulting death that criminal liability could not be imposed within the
bounds of due process, we stop short of ascribing to the First Circuit’s
“strict liability” language. Proof that the resulting death was actually
caused by ingestion of the controlled substance knowingly distributed by
the defendant is sufficient to increase the punishment for the unlawful dis-
tribution.
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[5] We find that the district court erred in instructing the
jury otherwise. We nevertheless affirm Houston’s conviction
because the district court’s error was harmless. It inured to the
benefit of the defendant because it placed a higher burden of
proof on the Government than is required by law. The error
was without question harmless beyond a reasonable doubt on
these facts; it did not affect Houston’s substantial rights. 28
U.S.C. § 2111; Fed. R. Crim. P. 52(a); see Killian v. United
States, 368 U.S. 231, 257-58 (1961) (concluding that an
instruction that “exacted a higher standard of proof” than the
law required could not have prejudiced the defendant); United
States v. Socony-Vacuum Oil Co., 310 U.S. 150, 219 (1940)
(noting that an erroneous jury instruction was more favorable
to the defendants than they could have required).
III
Houston challenges the sufficiency of the evidence support-
ing her conviction. We evaluate the sufficiency of the evi-
dence supporting this conviction de novo. United States v.
Bucher, 375 F.3d 929, 934 (9th Cir. 2004). We must deter-
mine whether, viewing the evidence in the light most favor-
able to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979).
In this case, the jury — through its guilty verdict — found
that the Government proved all of the essential elements of
the crime, and more, beyond a reasonable doubt. Although the
district court incorrectly instructed the jury that it needed to
find proximate cause, and not simply cause-in-fact, the jury
necessarily reached the cause-in-fact inquiry in the course of
concluding beyond a reasonable doubt that Houston’s actions
were the proximate cause of Bradford’s death. Consequently,
because the jury found all of the essential elements of the
crime — 1) that Houston sold methadone to Bradford, 2) that
Houston knew that the substance she was selling was metha-
done (or some other controlled substance), and 3) that the
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methadone was the cause-in-fact of Bradford’s death — we
can evaluate the sufficiency of the evidence without remand-
ing to require that this case be retried with the correct instruc-
tions.
[6] We find ample evidence to support the jury’s verdict.
Several witnesses provided evidence in support of the first
two elements. Bradford’s mother testified that Houston admit-
ted to her that Houston sold methadone to Bradford for $2 per
pill. Bradford’s sister testified that Houston confessed to sell-
ing forty methadone pills to Bradford shortly before Brad-
ford’s death. Another witness testified that she saw Bradford
and Houston together in the bathroom of Houston’s sister’s
house; Houston had a bottle of prescription medication and
Bradford had “a bunch of money[.]” An emergency medical
technician dispatched to Bradford’s home after Bradford’s
body was discovered testified that she observed a bottle of
prescription methadone bearing Houston’s name next to Brad-
ford’s bed. From this evidence, a reasonable trier of fact could
conclude that Houston knowingly delivered what she knew to
be methadone to Bradford.
[7] There was also sufficient medical evidence to support
the jury’s conclusion that Bradford died from using the meth-
adone that Houston sold to her. Montana State Medical Exam-
iner Dr. Gary Dale testified that methadone toxicity caused
Bradford’s death. This evidence was sufficient to permit the
jury to reasonably conclude that the methadone was the cause
of Bradford’s death.
IV
Although the district court erred in requiring the jury to
find proximate cause, the error favored the defendant by
imposing additional burdens on the Government beyond what
the statute requires. We find that sufficient evidence sup-
ported Houston’s conviction. The district court’s judgment is
AFFIRMED.
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