The opinion of the court was delivered by: J. Phil Gilbert District Judge
On January 5, 2006, Jennifer Lynn Krieger was indicted on one count of knowingly and intentionally distributing divers amounts of fentanyl, a schedule II controlled substance, with death resulting from such distribution. The Government chose to supersede the original indictment on March 5, 2008, removing the "death resulting" language, and charging Krieger simply with knowingly and intentionally distributing fentanyl. Krieger indicated that she would plead guilty to the charge. The Government gave notice of its intention to ask the Court at sentencing to enhance Krieger's sentence under 18 U.S.C. § 841(b)(1)(C) to a mandatory minimum of twenty years imprisonment because a death resulted from the distribution. Krieger indicated that she would object to the application of the mandatory minimum. On November 18, 2008, Krieger entered a plea of guilty to the charge of distribution of divers amounts of fentanyl. That same day, the Court began a two-day sentencing hearing. The Court has considered the evidence and arguments presented at the hearing, and is prepared to rule.
In 1986, Len Bias was an All-American college basketball player from the University of Maryland. Bias was selected by the defending NBA-champion Boston Celtics as the second overall pick in the 1986 NBA draft. Less than 48 hours after his selection by the Celtics, Bias died in a dormitory on the University of Maryland campus from a cocaine overdose. He was only 22 years old at the time of his death. In a span of 48 hours, Len Bias went from being the next face of a storied NBA franchise to being the face of the nation's drug problem. His death was a catalyst behind the passage of the Anti-Drug Abuse Act of 1986, a piece of legislation that introduced high mandatory minimum sentences for certain drug-related crimes. Illegal drug abuse continues to be a problem in the United States. This fact was once again exposed in November, 2005, when a young woman, Jennifer Curry, died in West Frankfort, Illinois of an apparent drug overdose.
I. Jennifer Krieger and Jennifer Curry
The defendant, Jennifer Krieger, has lived a difficult life. A tumultuous upbringing ushered in serious psychological and physical problems for Krieger. Those, in turn, led to a serious drug addiction. Krieger utilized the prescription pain medication fentanyl to manage the pain associated with her degenerative disk disease and her severe spinal cord problems. She was first prescribed fentanyl in the form of a Duragesic patch in January, 2005. Her prescription was for fifteen one-hundred-microgram patches per month. One-hundred-microgram Duragesic patches are designed to release one-hundred-micrograms of fentanyl every hour for seventy-two hours. However, by the summer of 2005, Krieger had learned that there was an illegal market for the patches by addicts who would ingest them to obtain a high. Krieger began selling her prescription fentanyl for fifty dollars a patch. Soon the word spread that Krieger had Duragesic patches for sale. Within days of Krieger's filling her prescription each month, she had sold, traded, or given away all of the patches.
Jennifer Curry and Jennifer Krieger were friends. By all accounts, Ms. Curry was raised by a loving and caring family. Nonetheless, she made some bad choices that resulted in her becoming a troubled young woman with a serious drug addiction problem. Curry was on a dangerous road. Her father told investigators that she often stayed out all night and slept all day. A few days prior to her death, Curry was assaulted by her former boyfriend and was hospitalized. On November 22, 2005, Krieger filled her prescription for the Duragesic patches. On the afternoon of that same day, Krieger met up with Curry and gave Curry one of the patches. The two women, along with some other friends, stopped at three bars that evening. Krieger remained with Curry from the time she gave her the patch until around midnight. Joshua Owens saw Curry leave Hurley's Show Bar in the early morning hours of November 23 in the company of two males.
No one knows exactly what happened in the hours after Ms. Curry left Hurley's Show Bar. But, at some point, she returned to her parent's residence. Her mother discovered Curry's lifeless body on the couch at around four o'clock in the afternoon of November 23. Ms. Curry's father called 911, and West Frankfort police officers arrived on the scene a short time later. The coroner pronounced Jennifer Curry dead at the scene.
The West Frankfort police conducted an investigation. One of the police officers conducted a search of the residence and located Ms. Curry's purse. Inside the purse, among other things, the officer found an open Duragesic patch container, a Duragesic patch, and a hypodermic syringe. Michael Dinn, the West Frankfort police chief at the time, testified that the patch looked "chewed up." Four items found in Curry's purse were taken into evidence: the two items pertaining to the Duragesic patch, the syringe, and a "one-hitter" pipe with burnt residue on it. Officers also found two red capsules in Curry's bedroom, but the capsules were not taken into evidence and were not tested. Dinn testified that the only items sent to the evidence lab by his department for testing were those pertaining to the fentanyl. The syringe was not tested at the time, a fact that Dinn attributes to "inadequate police work." It was finally sent off for testing almost three years later at the request of the United States Attorney's office. Ms. Curry's body was transported to the Franklin County Hospital. Dr. John Heidingsfelder, a medical doctor and pathologist, conducted an autopsy examination of the body on Friday, November 25, 2005. Dr. Heidingsfelder's medical opinion that the cause of Curry's death was fentanyl toxicity is the basis for the Government's contention that the drug distribution admitted to by Krieger resulted in a death, thus triggering the mandatory minimum sentence of 20 years under 18 U.S.C. §841(b). The lynch pin of Krieger's defense is that Dr. Heidingsfelder lacks credibility.
Dr. Heidingsfelder testified that prior to performing the autopsy on Curry, he was informed that a syringe and needle and a morphine patch were found near Curry's body. Dr. Heidingsfelder testified that the term "morphine" is used interchangeably with "fentanyl." He was told that the morphine patch appeared to be chewed up. He was also informed, erroneously, that Curry's body was discovered on Thursday, November 24, when, actually, her body was discovered on Wednesday, November 23. Dr. Heidingsfelder testified that during his surgical pathology he found no external traumatic injuries that would account for Curry's death. He did note pulmonary edema and congestion, as well as a bluish discoloration of the fingernails, findings consistent with a possible drug overdose. He also found needle marks on Curry's left elbow. Following his normal and customary procedures, Dr. Heidingsfelder collected blood samples and vitreous fluid samples, placed them in vials, secured them, and transported them to the AIT laboratory in Indianapolis, Indiana.
Dr. Heidingsfelder testified that the AIT lab reported finding fentanyl in Curry's blood in the amount of 13.1 nanograms per milliliter. The therapeutic range for fentanyl is listed from 1 to 3 nanograms per milliliter. The amount of fentanyl reported in Curry's blood was in the toxic to lethal range. The AIT report also indicated the presence of several other drugs, or their breakdown products, in Curry's system including oxycodone, valium, marijuana and cocaine. Dr. Heidingsfelder testified that the AIT toxicology report was integral to his determination as to the cause of Curry's death. He testified that in his opinion, Curry's death was caused by fentanyl toxicity. He further testified that, in his opinion, the other drugs found in Curry's system did not cause her death, either taken alone or in combination.
The defense relies heavily on the testimony of Dr. Long. Dr. Long, a toxicologist, was critical of Dr. Heidingsfelder's autopsy procedure, opining that more chemically stable blood samples could have been drawn had Dr. Heidingsfelder chosen a different draw site. He criticized Dr. Heidingsfelder for failing to test the needle marks found on Curry's body. Dr. Long opined that the blood samples may have been mishandled or placed in vials with the wrong preservative. Dr. Long also opined that the AIT and FBI lab reports were incomplete and inconsistent with one another. However, Dr. Long also testified that both the AIT and FBI lab ...