                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 18-1042
                        ___________________________

                            United States of America

                                       Plaintiff - Appellee

                                        v.

                              Cordero Robert Seals

                                    Defendant - Appellant
                                 ____________

                    Appeal from United States District Court
                       for the Northern District of Iowa
                                ____________

                         Submitted: December 14, 2018
                           Filed: February 15, 2019
                                ____________

Before LOKEN and ERICKSON, Circuit Judges, and MAGNUSON,1 District Judge.
                           ____________

ERICKSON, Circuit Judge.

     After purchasing and injecting a substance containing heroin and fentanyl from
Cordero Seals, J.V. overdosed and collapsed while pumping gas at the Hawkeye
Convenience store in Cedar Rapids, Iowa. Seals was charged with distribution of

      1
      The Honorable Paul A. Magnuson, United States District Judge for the District
of Minnesota, sitting by designation.
heroin and fentanyl resulting in serious bodily injury in violation of 21 U.S.C. §§
841(a)(1) and (b)(1)(C), and possession with intent to distribute heroin and fentanyl
in violation of 21 U.S.C. §§ 841(a) and (b)(1)(C). Seals twice moved for judgment
of acquittal–once at the beginning of trial, and again at the close of his case. Both
times the district court2 reserved ruling. The jury convicted Seals on both counts.
Seals then renewed his Rule 29 motion in writing which was again denied by the
district court. Seals was sentenced to 360 and 240 months concurrently on counts 1
and 2, respectively. Seals appeals asserting that the evidence presented at trial is
insufficient to convict him.

I.    Background

        On November 3, 2016, Cordero Seals sold $40 worth of a substance consisting
of heroin and fentanyl to J.V. The two men then drove to the Hawkeye Convenience
store where surveillance footage captured J.V. entering the restroom with a soda can
in his hand. While in the bathroom, J.V. fashioned the can into a heroin spoon, fixed
up a syringe, and injected himself. J.V. then returned to his truck to fill his tank with
gasoline, where he lost consciousness and collapsed. Approximately 90 seconds
later, Seals entered the store from an unknown location, apparently looking for J.V.
While inside the store, Seals looked in the direction of the truck and apparently
observed J.V. slumped near his vehicle. Seals began to frantically pace for a moment
before exiting the building, flagging down another store patron for a ride and fleeing
the scene leaving J.V. unattended.

      Shortly thereafter a store employee discovered J.V. and called 9-1-1. Officers
and paramedics promptly arrived on the scene. The first responders observed several
symptoms of an opiate overdose: unconsciousness, shallow breathing, poor skin


      2
       The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.

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coloration, and pinpoint pupils. The paramedics administered Narcan to revive J.V.
and, within 20 to 30 seconds, he regained consciousness. The first responding police
officer found a syringe, lighter, and the spoon with residue on J.V.’s person. The
Iowa Division of Criminal Investigation Laboratory later identified the residue as a
mixture of heroin and fentanyl.

       J.V. was transported to Mercy Hospital in Cedar Rapids for observation. While
there, his blood was drawn, “about half a teaspoon” of which was sent to the FBI
laboratory where it was tested by FBI forensic examiner Roman Karas. The initial
screening detected two opiates (morphine and codeine) and a subsequent screening
detected two more opiates (fentanyl and acetyl-fentanyl). The arguments in this case
center around the acetyl-fentanyl.

        Karas testified that morphine is a metabolite of heroin. He further opined that
when an individual takes heroin, the heroin molecules are quickly metabolized so that
it is not uncommon to find only morphine in a subsequent blood test.3 Karas also
testified that fentanyl has a short half-life–generally detectable only within two to
three hours of ingestion. He also stated that the half-life of acetyl-fentanyl had not
yet been medically established. Karas further testified that, due to the low volume of
blood sampled and his inability to perform additional testing, he was unable to
determine precisely which drug caused J.V.’s overdose.

       Dr. Joshua Pruitt also testified as an expert, concluding that J.V.’s collapse was
a result of an opiate overdose. This testimony was based on his review of the medical
charts, law enforcement reports of J.V.’s comatose state and his subsequent Narcan
revival. Dr. Pruitt also testified that any opiates in J.V.’s system before he injected
himself in the Hawkeye bathroom were likely not the cause of the overdose:

      3
       Karas also testified that codeine is a common impurity of the heroin
preparation process and frequently shows up on a blood sample test for heroin
overdose victims.

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      Well, the primary issue here is an issue of timing. The timing of onset
      from the time that . . . the substance was used to the onset of his
      symptoms was very brief. That fits with the clinical picture of . . . an
      opiate overdose. If there had been other opiates, medications in the
      background that were . . . there previously, those would not have
      suddenly become so active that they would have caused that sort of a
      response. There had to be something that changed; some new drug
      introduced that caused . . . those symptoms to come on so rapidly.

Finally, Dr. Pruitt confirmed Karas’s testimony that it was medically impossible to
determine the concentration of the various opiates in J.V.’s blood sample but, based
on a total of roughly seven minutes from injection to collapse, the heroin-fentanyl
mixture was the most likely cause of the overdose.

II.   Discussion

       We review “sufficiency of the evidence de novo, viewing evidence in the light
most favorable to the jury’s verdict, resolving conflicts in the government’s favor,
and accepting all reasonable inferences that support the verdict.” United States v.
Tillman, 765 F.3d 831, 833 (8th Cir. 2014) (quoting United States v.
Harris–Thompson, 751 F.3d 590, 598 (8th Cir. 2014)). “A conviction may be based
on circumstantial as well as direct evidence. The evidence need not exclude every
reasonable hypothesis except guilt.” United States v. Tate, 633 F.3d 624, 628 (8th
Cir. 2011) (quoting United States v. Erdman, 953 F.2d 387, 389 (8th Cir.1992)).
“The verdict will be upheld if there is any interpretation of the evidence that could
lead a reasonable jury to convict.” United States v. Brandon, 521 F.3d 1019, 1025
(8th Cir. 2008) (citing United States v. Hakim, 491 F.3d 843, 845 (8th Cir. 2007)).

       21 U.S.C. § 841(b)(1)(C) provides for enhanced penalties “if death or serious
bodily injury results from [the use of a controlled substance that has been unlawfully
distributed by a defendant].” 21 U.S.C. § 841(b)(1)(C). In Burrage v. United States,
the Supreme Court held that, by using the “results from” operator in this statute,

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Congress deliberately chose to “use language that imports but-for causality,” and that
if Congress had wished for 21 U.S.C. § 841(b)(1)(C) to apply to substantial
contributing factors, it would have used language denoting that concept. 134 S. Ct.
881 (2014). Therefore, “at least where use of the drug distributed by the defendant
is not an independently sufficient cause of the victim’s death or serious bodily injury,
a defendant cannot be liable under the penalty enhancement provision of 21 U.S.C.
§ 841(b)(1)(C) unless [the drug distributed by the defendant] is a but-for cause of the
death or injury.” Id. at 892.

        Seals argues that, because the acetyl-fentanyl could have been an independent
sufficient cause of the overdose, Burrage places a burden on the government to
exclude the possibility that it was, in fact, independently sufficient. However, Seals’s
claim is based on a misapprehension of Burrage. Seals contends that merely because
the acetyl-fentanyl alone could have caused the overdose, this possibility must be
excluded as a matter of law in order to find that the heroin was a but-for cause. This
is derived from the logical principle that the heroin is not a but-for cause of overdose
if J.V. might have overdosed in the absence of the heroin. This reading of Burrage
is strained and conflicts with our longstanding legal principle that, “[a]lthough the
evidence must be consistent with guilt, it need not be inconsistent with every other
reasonable hypothesis.” Klein v. United States, 728 F.2d 1074, 1075 (8th Cir. 1984)
(citing United States v. Swayne, 700 F.2d 467, 472 (8th Cir. 1983)). See also Tate,
633 F.3d at 628. In this case, the evidence did not indisputably establish that the
acetyl-fentanyl was an independently sufficient cause of the overdose; instead it
merely showed that the acetyl-fentanyl could have been an independently sufficient
cause. The evidence also showed that the heroin-fentanyl mixture could have been
either a but-for cause or an independently sufficient cause of J.V.’s overdose. This
created a factual issue for the jury to resolve rather than an absolute legal bar to
conviction.




                                          -5-
       Seals points to Gaylord v. United States, 829 F.3d 500 (7th Cir. 2016) for
support. We see no inconsistency between the court’s decision in Gaylord and the
district court’s ruling in this case. Here, there was ample evidence that the heroin was
either a but-for cause or an independently sufficient cause of the overdose. In
Gaylord, that evidence was equivocal. Id. at 507 (concluding the enhancement may
have been improperly applied because there was no evidence the oxycodone was the
but-for cause of death and without the oxycodone, the cocaine concentration may
have been enough to cause the victim’s death).

       In this case, the evidence in a light most favorable to the verdict established
that J.V. purchased a mixture of heroin and fentanyl from Seals, immediately drove
to a gas station, injected it in the bathroom, and collapsed within seven minutes. A
reasonable jury could find that the tight chain of events strongly suggested on its own
that the injected mixture caused the overdose. Along with the other evidence,
including Dr. Pruitt’s opinion that the seven-minute timeframe is consistent with a
heroin overdose, the jury was within its discretion to find but-for causation. This is
especially true when Dr. Pruitt stated to a medical certainty that an opiate injected
prior to the bathroom injection could not have been a but-for cause of the
overdose–“there had to be something that changed.” Given that J.V. undisputedly
injected the heroin in the bathroom, it was well-within the jury’s province to draw the
conclusion that the heroin was a but-for cause of the overdose.

       Even if the jury had determined that the acetyl-fentanyl was an independently
sufficient cause of the overdose, Burrage explicitly carved out an exception for cases
where there are multiple independently sufficient causes:

      [I]f A stabs B, inflicting a fatal wound; while at the same moment X,
      acting independently, shoots B in the head . . . also inflicting [a fatal]
      wound; and B dies from the combined effects of the two wounds, A will
      generally be liable for homicide even though his conduct was not a



                                          -6-
       but-for cause of B’s death (since B would have died from X’s actions in
       any event).

Burrage, 134 S. Ct. at 890 (first alteration added) (internal quotation marks and
citation omitted).

       Viewing the evidence in the light most favorable to the jury verdict, there was
overwhelming evidence presented to the jury to establish but-for causation. The jury
drew reasonable inferences from the evidence that J.V.’s overdose was not caused by
any opiate in his system prior to the ingestion of the heroin/fentanyl mixture. The
Seventh Circuit’s decision in Gaylord is neither controlling nor contradictory to our
case law.

III.   Conclusion

       We affirm the judgment of the district court.
                       ______________________________




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