United States District Court, E.D. Wisconsin
ORDER AND REPORT AND RECOMMENDATION ON
DEFENDANT'S PRETRIAL MOTIONS
JOSEPH UNITED STATES MAGISTRATE JUDGE
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.
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.
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.
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.
Motion to Compel Exculpatory and Impeachment Information
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.
Motion for In Camera Inspection of Psychological Records
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
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.
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.)
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).
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.
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.
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.
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.
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
Motion for Bill of Particulars
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 ...