                           In the

United States Court of Appeals
              For the Seventh Circuit

Nos. 09-1705, 09-1849

U NITED S TATES OF A MERICA,
                                             Plaintiff-Appellee,
                               v.

R EX I. H ATFIELD and E VERLY K. H ATFIELD,

                                        Defendants-Appellants.


          Appeals from the United States District Court
                for the Southern District of Illinois.
         No. 08-CR-30020—David R. Herndon, Chief Judge.



    A RGUED N OVEMBER 10, 2009—D ECIDED JANUARY 14, 2010




  Before P OSNER and FLAUM,             Circuit   Judges,   and
D ER-Y EGHIAYAN, District Judge.
  P OSNER, 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,



   Hon. Samuel Der-Yeghiayan of the Northern District of
Illinois, sitting by designation.
2                                     Nos. 09-1705, 09-1849

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 defen-
dants’ 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 sen-
tenced 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 defen-
dants 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
Nos. 09-1705, 09-1849                                        3

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 instruc-
tion—“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 mini-
mum concept of cause. See Price Waterhouse v. Hopkins,
490 U.S. 228, 240 (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?
4                                     Nos. 09-1705, 09-1849

   At argument the government’s lawyer said that “played
a part” refers to but-for causation. But his under-
standing 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
Nos. 09-1705, 09-1849                                         5

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
6                                       Nos. 09-1705, 09-1849

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 oc-
curred, 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 unfa-
miliar 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 “proxi-
mate 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.
Nos. 09-1705, 09-1849                                       7

  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 over-
dose, 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 the addition and probably
clear enough. Elaborating on a term often makes it less
rather than more clear (try defining the word “time” in a
noncircular way); it is on this ground that some courts,
including our own, tell district judges not to try to
explain to a jury the meaning of “beyond a reasonable
doubt.” United States v. Bruce, 109 F.3d 323, 329 (7th Cir.
1997); United States v. Desimone, 119 F.3d 217, 226-27 (2d
Cir. 1997); United States v. Oriakhi, 57 F.3d 1290, 1300 (4th
Cir. 1995). Probably the same is true of “results from.”
  The government’s lawyer told us that he got the addi-
tional language for the instruction from other circuits’
opinions, such as the Eighth Circuit’s opinion in United
States v. Monnier, 412 F.3d 859, 862 (8th Cir. 2005), and
indeed it is the principal case on which the government
8                                       Nos. 09-1705, 09-1849

relies. The opinion did refer to “primary cause” and
“played a part,” but it was trying (perhaps not terribly
successfully) to explain the difference between a test of
causation that requires merely that the defendant’s act
be a “contributory cause” (which the court seems to
have equated to a “but for” cause) and a test of “proximate
cause,” or foreseeability. In any event, the opinion was not
quoting from or approving a jury instruction. No case
has approved the language that was added to the in-
struction in this case at the prosecutor’s behest.
  Earlier the Eighth Circuit had held, consistently with the
Houston and Soler decisions that we cited earlier, that
“results from” in section 841(b)(1)(C) does not require
proof that the death or bodily injury of the user of the
defendant’s drug was foreseeable. United States v.
McIntosh, 236 F.3d 968, 972-73 (8th Cir. 2001). The defen-
dant in that case had manufactured methamphetamine
with another person, who gave a coffee filter that had
been used in that process and still had some meth on it
to still another person, who gave it to the person who
died from ingesting it. It may not have been foreseeable to
the defendant that this person, or perhaps that anyone,
would die from his meth; and he had even given instruc-
tions that the person who ended up dying should not
be given any meth. The court held that none of these
circumstances mattered because the statute imposes
strict liability for a drug offense that results in death. That
holding—the irrelevance of unforeseeability—has
nothing to do with causation. Instead it illustrates the
distinction between cause and legal responsibility, which
Nos. 09-1705, 09-1849                                      9

the interpretation of “results from” as imposing strict
liability collapses, though only to the extent of dispensing
with any need to show that the defendant should have
foreseen the consequence of his lethal act.
  We have some misgivings about interpreting “results
from” in the statute to impose strict liability. That could
lead to some strange results. Suppose that, unbeknownst
to the seller of an illegal drug, his buyer was intending
to commit suicide by taking an overdose of drugs, bought
from that seller, that were not abnormally strong, and
in addition the seller had informed the buyer of the
strength of the drugs, so that there was no reasonable
likelihood of an accidental overdose. Yet the cases are
unanimous and emphatic that section 841(b)(1)(C)
imposes strict liability—see, besides the Houston, Soler and
McIntosh cases, cited earlier, United States v. Robinson, 167
F.3d 824, 830-31 (3d Cir. 1999), and United States v.
Patterson, 38 F.3d 139, 144-45 (4th Cir. 1994)—though they
might not push their interpretation that far, and though
their reasoning might be thought by legal realists some-
what wooden. The cases emphasize the “plain meaning” of
the statute, by which they mean simply the omission of
any reference to foreseeability or state of mind, and point
out that criminal statutes commonly do specify the re-
quired state of mind or other ground of culpability (such
as negligence) rather than leaving it to be filled in by
the judges (as under the Model Penal Code, which pro-
vides that proof of guilt of a statute that does not specify
a state of mind or other standard of culpability requires
proof of at least recklessness, American Law Institute,
10                                    Nos. 09-1705, 09-1849

Model Penal Code § 2.02(3) (1962)). And from this they infer
that the omission of any such requirement from section
841(b)(1)(C) was deliberate, and so liability must be strict.
  A realistic consideration, however, supports the con-
clusion: strict liability creates an incentive for a drug
dealer to warn his customer about the strength of the
particular batch of drugs being sold and to refuse
to supply drugs to particularly vulnerable people. And
strict liability does not offend against the principle of
marginal deterrence in this instance because it does not
give the seller an incentive to commit a more serious
crime, as in the case where robbery is punished as
severely as murder. In any event, the defendants in
this case do not challenge the interpretation of the
statute as imposing strict liability on them for death
or injury to recipients of their drugs.
  Still, there was error in the instruction, as we have
found. But errors in instructions are not reversible if they
are harmless. E.g., Neder v. United States, 527 U.S. 1, 8-10
(1999); United States v. Ramsey, 406 F.3d 426, 432 (7th Cir.
2005). Although the government does not argue that
the error in the “results from” instruction (if it was an
error, as we hold that it was) was harmless, if we were
convinced it was we would not reverse, United States v.
Parmelee, 42 F.3d 387, 391-94 and n. 6 (7th Cir. 1994); see
also United States v. Jewel, 947 F.2d 224, 228 n. 5 (7th Cir.
1991); United States v. Giovannetti, 928 F.2d 225 (7th Cir.
1991) (per curiam); United States v. Gonzalez-Flores, 418
F.3d 1093, 1099-1102 (9th Cir. 2005)—to do so would give
the defendants a shot at acquittal were they fortunate
enough to have an unreasonable jury at their retrial. But
Nos. 09-1705, 09-1849                                   11

we do not think it was harmless. The evidence regarding
the cause of the serious injury of the one victim and the
deaths of the others, though strong enough to justify a
verdict of guilt beyond a reasonable doubt, was not
conclusive. In each case the victim was found to have
taken multiple drugs, some probably or possibly not
distributed by the defendants. In the case of the nonfatal
injury (respiratory arrest), the testifying physician
thought it more likely that the drug probably supplied
by the defendants had caused the injury rather than
the cocaine that the victim had also ingested, but he
did not rule out the possibility that the cocaine was
responsible. With regard to another victim, the medical
evidence was that the methadone he apparently
received from one of the defendants “would have been
sufficient to kill him.” But he had another drug in his
system and it is unclear how a juror would have fitted
that evidence to the “played a part” and “primary cause”
templates that he was asked to use to interpret “results
from.”
  So the case must be retried; for guidance on remand
we’ll address the defendants’ challenges to the district
court’s other rulings.
  1. The special verdict form concerning the drug user
who was seriously injured omitted the date of the
overdose and thus, the defendants argue, “constructively
amended” the indictment, United States v. Pigee, 197
F.3d 879, 887 (7th Cir. 1999); United States v. Willoughby,
27 F.3d 263, 266 (7th Cir. 1994), which specified the date.
But the jury instructions referred to the count of the
12                                     Nos. 09-1705, 09-1849

indictment that did so and the judge twice reminded the
jury of it, so there is no reasonable likelihood that the jury
convicted the defendants on the basis of an overdose
not charged in the indictment.
   2. One of the dead was an informant in another case
against one of the two defendants. That case was
dismissed on motion by the prosecutor when the
informant died. The government was permitted to
present certified documents from that case, including a
criminal complaint alleging that the defendant had
sold oxycodone to the informant and an order dismissing
the case because of the informant’s death, to back up
its argument that the defendants had planned to kill her
in order to stop her from testifying. The evidence
consisted of public records, which usually are admissible
even though they are hearsay, Fed. R. Evid. 803(8), but
there is an exception for the use in criminal cases of
records that set forth “matters observed by police
officers and other law enforcement personnel.” These are
not admissible. Rule 803(8)(B).
  The police officer who had signed the criminal com-
plaint in that case testified at the trial of the present case
about the proceedings in that other case, including the
allegations in the complaint that he had drafted. So he
was available for cross-examination. That might seem
to cure any objection to the introduction into evidence
of the records of that case. “The apparent concern of the
drafters [of the exception in Rule 803(8)(B)] was that use
of records in criminal cases would cause ‘almost certain
collision with confrontation rights.’ ” United States v.
Nos. 09-1705, 09-1849                                     13

Blackburn, 992 F.2d 666, 671 (7th Cir. 1993). And during
floor debates on the rule, “concern was expressed that
[without the exception, Rule 803(8)] would allow the
introduction against the accused of a police officer’s
report without producing the officer as a witness subject
to cross-examination.” 2 McCormick on Evidence § 296
(6th ed. 2006). But there is more to the exception than a
concern with unavailability of cross-examination. There
is also a concern that reports by law enforcers are less
reliable than reports by other public officials because
of law enforcers’ adversary relation to a defendant
against whom the records are sought to be used. United
States v. Rosa, 11 F.3d 315, 332-33 (2d Cir. 1993); United
States v. Hernandez-Rojas, 617 F.2d 533, 535 (9th Cir. 1980).
Moreover, the police officer’s key testimony in this
case—that the prosecutor had dismissed the case because
he didn’t have an informant who could testify—was
hearsay; he was testifying to the truth of what someone
else, the prosecutor, had told him.
  All this is of no moment, however, because the key
document is the order dismissing the criminal complaint,
and although it does mention the reason the prosecutor
gave for asking the court to dismiss the complaint, the
order is a public record of the court’s reason (the infor-
mant’s death) rather than a record of observations by law
enforcement officers. See United States v. Lechuga, 975 F.2d
397, 398-99 (7th Cir. 1992). The case is thus like United
States v. Hernandez-Rojas, supra, which held that the law-
enforcement exception did not bar the admission into
evidence of a warrant of deportation. The purpose of the
exception—to exclude records created in an adversarial
14                                    Nos. 09-1705, 09-1849

setting and therefore likely to be tendentious—was inappli-
cable to the notation that the defendant was to be
deported to Mexico. That was “a ministerial, objective
observation, which has inherent reliability because of the
Government’s need to keep accurate records of the move-
ment of aliens. It has none of the features of the subjective
report made by a law enforcement official in an on-the-
scene investigation, which investigative reports lack
sufficient guarantees of trustworthiness because they are
made in an adversary setting and likely to be used in
litigation.”617 F.3d at 535.
  Furthermore, the truthfulness of the reason for the
dismissal of the other case (whether the real reason, or the
reason given by the prosecutor and repeated by the
police officer in his testimony) was secondary to the key
fact that the dismissal established—which was uncon-
tested—that the victim of the overdose was a govern-
ment informant in a case against one of the defendants.
That supplied motive for the overdose that killed the
informant, and while motive is not an element of 18 U.S.C.
§ 841(b)(1)(C) (remember that liability is strict), proof of
the defendants’ lethal motive increased the likelihood
that the victim had died from the defendants’ drugs
rather than from a drug that she had obtained elsewhere.
  3. The defendants sought to introduce in evidence out-of-
court statements by a man named Willbrand, recorded
in a police report, to the effect that he along with three
other persons, rather than either of the defendants, had
committed one of the pharmacy burglaries that the defen-
dants were accused of. Although the statements were
Nos. 09-1705, 09-1849                                    15

against Willbrand’s penal interest, the district judge
refused to allow them into evidence under Fed. R.
Evid. 804(b)(3). His ground was that the circumstances
didn’t “clearly indicate the trustworthiness of the state-
ment” because Willbrand had changed his story twice
before admitting his involvement in the burglary. United
States v. Jackson, 540 F.3d 578, 588-89 (7th Cir. 2008). Yet
there is no suggestion that he knew the defendants; in
none of his versions of the burglary did he implicate
them; and his ultimate version was corroborated by the
fact that he had dialed 911 while the burglary was in
progress and had stated accurately in his initial statement
to the police that one person had broken into the
pharmacy by shattering the glass on the front door, which
was evidence that Willbrand had indeed been present
at the commission of the crime. And the evidence
against the defendants concerning this particular burglary
was pretty weak. So Willbrand’s statements should have
been admitted. The error was harmless, however, because
the government presented evidence that the defendants
had committed between 85 and 100 burglaries of pharma-
cies, and they were not charged with specific burglaries.
But should the government in the new trial that we are
ordering decide to present evidence that the defendants
committed this particular burglary, Willbrand’s state-
ment should be admitted.
  Since the judge’s evidentiary rulings did not amount to
reversible error, the new trial that we are ordering will be
limited to the “results from” charge. The convictions for
conspiracy to burglarize pharmacies and distribute con-
trolled substances were supported by overwhelming
16                                  Nos. 09-1705, 09-1849

evidence unrelated to the evidence of the causes of the
injury and deaths. The defendants do not argue that the
erroneous instruction on the death charge contaminated
the jury’s consideration of the other charges; nor would
such an argument be plausible given the overwhelming
evidence of the defendants’ guilt of those charges.
                               R EVERSED AND R EMANDED.




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