Cite as: 574 U. S. ____ (2014)
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` ALITO, J., concurring
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`SUPREME COURT OF THE UNITED STATES
`PAUL H. VOLKMAN v. UNITED STATES
`ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
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`STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
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` No. 13–8827. Decided October 20, 2014
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`The motion of petitioner for leave to proceed in forma
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`pauperis and the petition for a writ of certiorari are grant-
`ed. The judgment is vacated, and the case is remanded to
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`the United States Court of Appeals for the Sixth Circuit
`for further consideration in light of Burrage v. United
`States, 571 U. S. ___ (2014).
`JUSTICE ALITO, with whom JUSTICE THOMAS joins,
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`concurring.
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`A jury convicted petitioner, a medical doctor, of four
`counts of unlawful distribution of a controlled substance
`leading to death. He was sentenced to four consecutive
`life sentences for those four deaths. Without the benefit of
`Burrage v. United States, 571 U. S. ___ (2014), the Sixth
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`Circuit upheld the jury’s verdict. Burrage holds that “at
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`least where use of the drug distributed by the defendant is
`not an independently sufficient cause of the victim’s
`death,” conviction is improper “unless such use is a but-for
`cause of the death or injury.” Id., at ___ (slip op., at 14–
`15). But-for causation exists where the controlled sub-
`stance “combines with other factors to produce” death, so
`long as death would have not occurred “without the in-
`cremental effect” of the controlled substance. Id., at ___
`(slip op., at 7). Because the Sixth Circuit did not focus on
`but-for causation, I join the Court’s order to vacate and
`remand.
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`I write separately, however, to highlight the nature of
`petitioner’s burden going forward. Petitioner concedes
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`that even “[w]ithout having the benefit of this Court’s
`Burrage opinion, the district court nonetheless gave the
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`VOLKMAN v. UNITED STATES
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` ALITO, J., concurring
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`jury a ‘but-for’ causation instruction.” Pet. for Cert. 21.
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`Even on petitioner’s theory, therefore, the question is
`whether the Sixth Circuit should have “set aside the jury’s
`verdict on the ground of insufficient evidence.” Ibid. As
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`petitioner acknowledges, this means that he can prevail
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`only by showing that no rational trier of fact could have
`found, as the jury did here, “that death would not have
`occurred in these individuals but for the use of the oxyco-
`done prescribed.” Ibid. (citing Jackson v. Virginia, 443
`U. S. 307, 319 (1979)).
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`The jury reached its verdict after a 35-day trial. See 736
`F. 3d 1013, 1019 (CA6 2013). During that trial jurors
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`learned much about the deaths of petitioner’s patients.
`For instance, petitioner prescribed one opiate (oxycodone)
`and two other drugs (diazepam and alprazolam) to Steven
`Craig Hieneman. Id., at 1027. Hieneman “died twelve
`hours” later and was “found dead with the very drugs the
`doctor prescribed.” Id., at 1027–1028. The jury also heard
`from a deputy coroner that “Hieneman died an opiate-
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`induced death.” Id., at 1027. The question on remand is
`whether evidence of this sort, if credited, would allow a
`rational jury to conclude that Hieneman would not have
`died but for the oxycodone dispensed by petitioner. That
`same question will have to be answered for each of peti-
`tioner’s patients.
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`In short, nothing in today’s order should be understood
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`as suggesting that petitioner is entitled to acquittal.
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`Petitioner’s convictions should be affirmed if the Sixth
`Circuit finds that the evidence from trial—“considered in
`the light most favorable to the prosecution,” Jackson,
`supra, at 319—shows that a rational jury could have found
`as this jury, in fact, did. The Court’s order, moreover, has
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`no bearing on petitioner’s other convictions for conspiracy
`to unlawfully distribute a controlled substance, unlawful
`distribution of a controlled substance, maintaining a drug-
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`involved premises, and possession of a firearm in further-
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`ance of a drug-trafficking offense.