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United States v. Shanks

United States District Court, E.D. Wisconsin

July 17, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
DAVID L. SHANKS JR., Defendant.

          ORDER AND REPORT AND RECOMMENDATION ON DEFENDANT'S PRETRIAL MOTIONS

          NANCY JOSEPH UNITED STATES MAGISTRATE JUDGE

         On March 27, 2018, a grand jury in this district returned a seven-count superseding indictment charging David Shanks with a variety of drug related charges including conspiracy to distribute controlled substances and possessing with intent to distribute controlled substances. Additionally, Shanks is charged with the distribution of drugs which caused death and serious bodily injury to several individuals. Shanks has pled not guilty and a jury trial before the Honorable William Griesbach is scheduled for September 10, 2018.

         Before me are Shanks' pretrial motions: (1) motion for release of Brady materials; (2) motion for disclosure and request for in camera inspection of mental health records; (3) motion for bill of particulars; (4) motion for discovery; (5) motion to sever counts; (6) motion to dismiss Count One on vagueness grounds; and (7) motion to dismiss Counts One, Three, Four, and Five.

         INDICTMENT ALLEGATIONS

         Count One of the superseding indictment charges Shanks with conspiring to distribute and possessing with intent to distribute controlled substances, in violation of 21 U.S.C. § 841(a)(1). Count Two charges Shanks with knowingly distributing methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) and 18 U.S.C. § 2. Count Three charges Shanks with knowingly distributing a substance containing heroin, a substance containing fentanyl, and methamphetamine, as well as the death of J.V. from the use of heroin, fentanyl, and methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) and 18 U.S.C. § 2.

         Count Four charges Shanks with knowingly distributing heroin and fentanyl and the overdose of E.S. resulting in serious bodily harm from the use of heroin and fentanyl in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) and 18 U.S.C. § 2. Count Five charges Shanks with knowingly distributing heroin and fentanyl and the overdose of K.M. resulting in serious bodily harm from the use of heroin and fentanyl in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) and 18 U.S.C. § 2. Count Six charges Shanks with knowingly distributing methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) and 18 U.S.C. § 2. Finally, Count Seven charges Shanks with knowingly distributing a substance containing cocaine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) and 18 U.S.C. § 2.

         ANALYSIS

         1. Motion to Compel Exculpatory and Impeachment Information

         Shanks moves for an order compelling the government to disclose exculpatory and impeachment information as to all government witnesses. (Docket # 20.) Shanks concedes that the government will comply with his request thirty days prior to trial. He, nonetheless, files this motion in case there is a dispute, but asks the court to take no action at this time. Accordingly, this motion is moot and unnecessary.

         2. Motion for In Camera Inspection of Psychological Records

         Again, Count One charges Shanks with conspiring to distribute controlled substances; namely methamphetamine, heroin, fentanyl, and cocaine, (Superseding Indictment at 2, Docket # 14), which resulted in the death of J.V. from the use of drugs, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) and 18 U.S.C. § 2. (Superseding Indictment at 3, Docket # 14). Count Three charges Shanks with intentionally distributing heroin, cocaine, methamphetamine, and fentanyl which resulted in the death of J.V. from the use of the drugs in violation of 21 U.S.C. § 846, § 841(b)(1)(A), and 18 U.S.C. § 2. (Superseding Indictment, at 4.) Section 841(b)(1)(C) mandates a twenty-year minimum sentence if “death or serious bodily injury results from the use” of the unlawfully distributed substance.

         Shanks moves for an in camera inspection of psychological treatment records of J.V., the decedent in Counts One and Three of the superseding indictment. (Motion for In Camera Inspection, Docket # 21.) Shanks argues that J.V.'s treatment records may contain exculpatory evidence, including evidence that J.V. died as a result of suicide. Shanks asserts that he should have an opportunity to present the jury with evidence that shows “J.V.'s suicide was an independent cause that releases Shanks of any liability for his death.” (Docket # 21 at 3.) He relies on language from United States v. Hatfield, 591 F.3d 945 (7th Cir. 2010), where the court hypothesized a “strange result” where unbeknownst to the drug dealer the buyer intended to commit suicide by taking an overdose of the drugs. Id. at 950.

         The government counters that neither the facts nor the law support Shanks' request for an in camera inspection. (Gov't Resp. at 2, Docket # 32.) Specifically, the government submits that although J.V. attempted suicide approximately seven years prior to his overdose in September 2017, the evidence shows that his overdose was an accident, not suicide. Additionally, the government argues that the “death results” enhancement is a strict liability offense. (Id. at 3 citing Hatfield, 591 F.3d 945.)

         Whether Shanks is entitled to an in camera inspection of J.V.'s treatment records turns on whether the requested documents are material. The government is obligated “to turn over evidence in its possession that is both favorable to the accused and material to guilt or punishment.” Pennsylvania v. Ritchie, 480 U.S. 39, 57 (1987) (citing United States v. Agurs, 427 U.S. 97, (1976); Brady v. Maryland, 373 U.S. 87 (1963)). Evidence is material if it can reasonably have an effect on guilt or innocence. See Goudy v. Basinger, 604 F.3d 394, 399 (7th Cir. 2010). When a defendant is seeking confidential medical information, it is to be turned over to a district court for in camera review. United States v. Hach, 162 F.3d 937, 946 (7th Cir. 1998) (internal citation omitted). However, speculation that the government possesses Brady material is not sufficient for in camera inspection. United States v. Mitchell, 178 F.3d 904, 908 (7th Cir. 1999). A defendant must establish a reasonable probability that the evidence sought would be material. Davis v. Litscher, 290 F.3d 943, 947 (7th Cir. 2002).

         To assess the materiality of the requested treatment records, I begin with the government's burden on the “death results” enhancement. To prevail at trial on the “death results” enhancement, the government must prove, beyond a reasonable doubt, that J.V. would have lived but for the unlawfully distributed drugs. Burrage v. United States, 571 U.S. 204, 204-205 (2014). In Burrage, a victim died with multiple drugs in his bloodstream, including metabolites from heroin that had been distributed by the defendant. Although morphine, a heroin metabolite, was the only drug present at a level above the therapeutic range, the government's experts could not say whether the victim would have lived if he had not taken the heroin. Id. at 207. The experts testified only that heroin was a “contributing factor” to a death caused by “mixed drug intoxication.” Id. In addition to that testimony, the jury was instructed to find “that the heroin distributed by the defendant was a contributing cause of [the victim's] death.” Id. at 208. The Supreme Court held that, under the statute, it was not enough to show that the distributed drug merely contributed to the victim's death. See id. at 209-214. The enhancement applies when “death or serious bodily injury results from the use of [the distributed] substance, ” which means that the substance must be a “but for” cause of the death. Id. at 209.

         With the “but for” standard in mind, it is not clear how J.V.'s past suicide attempt is material to the cause of his death in September 2017. For example, would anything in J.V.'s treatment records reveal that on the date of his death, J.V. used multiple drugs, as was the case in Burrage? Alternatively, would anything in the records reveal that J.V.'s death was not caused by the drugs allegedly distributed by or conspired to be distributed by Shanks, but by some other means of death? Shanks does not answer these questions. Further, Shanks does not explain how, even if he could show that J.V. was suicidal at the time of his death or that J.V. intentionally took the drugs to commit suicide, that would negate the “but for” causation requirement. The language Congress enacted requires that the death resulted from the use of the unlawfully distributed drug. The Hatfield suicide hypothetical notwithstanding, the language does not distinguish between death that is intentional or death that is accidental, only that death resulted.

         Shanks also argues that inspection of the records is warranted to show that J.V.'s death was unforeseeable. But reasonable foreseeability is not required for the “death results” enhancement. Stated differently, once the government shows the “but for” causal connection between the drug and the resulting death, criminal liability attaches without the need to prove foreseeability. As the Seventh Circuit recently stated, every circuit to address the issue has taken this view of the “death results” enhancement. United States v. Harden, 893 F.3d 434, 447-448 (7th Cir. 2018) (collecting cases). This is consistent with the Seventh Circuit's own reading of the “results from” language of § 841(b)(1)(C) to impose strict liability for distributing controlled substances when they result in death or serious injury. Hatfield, 591 F.3d at 950-51. The Seventh Circuit reasoned “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 a particularly vulnerable people.” Id. at 951.

         That said, the Seventh Circuit has also recognized that strict liability has limits as applied to this enhancement. On a conspiracy charge, it is not sufficient for the government to prove that a defendant participated in an overall conspiracy in which a drug user died. United States v. Walker, 721 F.3d 828, 836-838 (7th Cir. 2013). Rather, the government must prove a particular defendant responsible for a particular death. Id. In other words, the government need not prove that death was reasonably foreseeable for the “death result” enhancement to apply in a case where a defendant directly distributes drugs or uses intermediaries to distribute drugs that result in death. However, in a conspiracy charge, the government must prove that the defendant's relevant conduct encompasses the drugs linked to the death. Id. at 839.

         Here, Shanks is not only charged in a conspiracy in which J.V.'s death resulted, he is also charged in a substantive count of knowingly distributing drugs to J.V. and that J.V.'s death resulted from the use of these drugs. Bearing in mind the standards discussed above and how Shanks is charged, he has not shown how the records he seeks are material to the issues a jury will need to decide. Accordingly, I will deny without prejudice Shanks' motion for an in camera inspection of J.V.'s treatment records.

         3. Motion for Bill of Particulars

         Shanks moves for a bill of particulars. Specifically, Shanks moves for: (1) the government to identify the names of unindicted co-conspirators and their known aliases; (2) the times, places, and dates on which the conspiracy began; (3) information on which Shanks and each co-conspirator joined and withdrew from the conspiracy; (4) a description of any and all overt acts in furtherance of the alleged conspiracy; (5) the names of all participants of any overt acts; (6) the means used to accomplish objectives of the conspiracy; (7) a description of ...


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