Appeal from the United States District Court for the Southern District of Illinois. No. 06 CR 40001 JPG 1- J. Phil Gilbert, Judge.
The opinion of the court was delivered by: Rovner, Circuit Judge.
ARGUED SEPTEMBER 17, 2009
Before ROVNER, SYKES, and TINDER, Circuit Judges.
The afternoon before Thanksgiving, 2005, Jennifer Curry's mother found her nineteen-year-old daughter dead on a sofa at the home of Curry's father. At the scene, investigators found, among other things, a chewed 100 microgram Duragesic patch. Duragesic is a brand name for a fentanyl skin patch, a powerful opioid that is delivered across the skin in small steady doses over the course of several days. It is not meant to be ingested orally nor injected under the skin, but sometimes is by those who are abusing the drug. Of course, fentanyl is available only by prescription and, not surprisingly, Jennifer Curry did not have one. Her friend, Jennifer Krieger, however, had such a prescription and despite her pain from severe spinal cord and disk problems, she began selling the patches to others for $50 apiece or, as happened here, giving them to her friends. On November 22, 2005, Krieger filled her prescription for the patches and later that afternoon gave one to Curry. The two women then proceeded, with some other friends, to several bars. Krieger left Curry at around midnight and another witness saw Curry leave a bar with two men in the early hours of November 23. Curry arrived at her father's home at approximately two o'clock in the morning. Her mother found her unresponsive at approximately four o'clock the next afternoon and began performing CPR. When the paramedics arrived, they determined that Curry had been dead for some time. At the scene, the investigators found a hypodermic needle, a small pipe with burnt residue on it, and two red capsules that were not taken into evidence and tested. A medical examiner found traces of many drugs in Curry's system, including cocaine, benzodiazepines, cannabinoids, and Oxycodone, but concluded that Curry died from fentanyl toxicity.
The federal grand jury returned a two-count indictment on January 5, 2006, charging Krieger with distribution of divers amounts of fentanyl with death resulting, under 21 U.S.C. § 841(a)(1) and § 841(b)(1)(c). Krieger concedes that she gave Curry a patch. She denies, how-ever, that the government proved sufficiently that Curry's death resulted from her abuse of the fentanyl patch. Krieger objects both to the manner in which the government proved that "death resulted" (as a sentencing factor proved by a preponderance of the evidence rather than an element proved beyond a reasonable doubt) and the sufficiency of the evidence. In particular, Krieger argues that the government failed to link sufficiently Curry's death to the fentanyl.
Krieger's claim of insufficiency is based, in part, on a critical weakness in the government's case. In a strange twist of events, the government's main witness, the medical examiner, Dr. John Heidingsfelder, fled the country under a cloud of suspicion. It seems that Heidingsfelder had legal problems of his own, including tax and ethics trouble, and had left the country and set up a practice in the Cayman Islands. Investigators for the U.S. Attorney's office had been unable to track him down. Heidingsfelder also had been disciplined by the Indiana Medical Licensing Board for engaging in a prohibited personal relationship with a patient, for prescribing medication to his girlfriend/ patient, and failing to keep abreast of current professional theory and practice. Apparently, Heidingsfelder had engaged in sexual contact with a patient under his care and provided her hydrocodone and other narcotic drugs. The woman committed suicide after Heidingsfelder terminated the relationship.
With the main witness unavailable, the government informed the court that it was engaged in good faith plea negotiations. When those negotiations failed, the government returned a one-count superseding indictment in which the "with death resulting" language of the indictment had been eliminated. In this superseding indictment, Krieger was charged only with distribution of divers amounts of fentanyl in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). The following day, Krieger filed a motion to dismiss the indictment arguing that the unavailability of the doctor who performed the autopsy presented an incurable confrontation clause and chain-of-custody problem. The district court denied the motion but left open the possibility that it would revisit the issue at a later time.
On October 18, 2008, Krieger pleaded guilty to the superseding indictment with the specific exclusion that she was not pleading guilty to causing the death of Curry. The following exchange occurred between Krieger and the court:
THE COURT: Ms. Krieger, without admitting that the patch that you sold or gave to Jennifer Curry resulted in her death, the question is: Is the factual basis that you, on November 23rd, 2005, did knowingly and intentionally distribute diverse [sic] amounts of fentanyl correct?
THE COURT: Okay. At this time I'm going to ask you how you plead to the charge in the superseding indictment that on November 23rd, 2005, you did knowingly and intentionally distribute diverse [sic] amounts of fentanyl, a Schedule II controlled substance, in violation of federal law, guilty or not guilty?
THE DEFENDANT: I am guilty.
Krieger's pre-sentencing report set forth a recommended sentencing range of ten to sixteen months. The government filed objections, arguing that the court should find that Curry's death resulted from Krieger's distribution of fentanyl, thus triggering a mandatory minimum sentence of twenty years under 21 U.S.C. § 841(b)(1)(C). That statute instructs, "[I]f death or serious bodily injury results from the use of such substance [such person] shall be sentenced to a term of imprisonment of not less than twenty years or more than life." Id. In the alternative, the government suggested an upward departure under either United States Sentencing Guideline § 5K2.1 (allowing upward departure where death has resulted) or § 5K2.21 (allowing upward departure to reflect seriousness of the offense based on dismissed charges). In response, Krieger argued in her sentencing memorandum that the court should consider, under 18 U.S.C. § 3553(a), mitigating factors including her difficult upbringing, the fact that she had been a victim of rape and physical violence, her significant medical and psychological problems, her substance abuse, and her responsibilities as a single mother.
The court held a sentencing hearing on October 18 and 19, 2009, to determine whether the fentanyl had resulted in the death of the victim. During that hearing, the government called numerous witnesses, including the previously unavailable but subsequently found Heidingsfelder. Krieger called Dr. Long, a forensic toxicologist who testified regarding problems with evidence collection and who challenged the determination of the cause of death. We will fill in the remaining details of the evidence as necessary below.
On January 16, 2009, the district court issued its order, finding, by a preponderance of the evidence, that the fentanyl supplied by Krieger resulted in the death of Curry. The court found Heidingsfelder's testimony regarding his reasons for leaving the country not credible, but found his testimony regarding how he conducted the autopsy and how he arrived at his conclusions as to the cause of Curry's death to be credible. In view of the conflicting evidence as to the cause of Curry's death, the court concluded that the government would not have been able to prove, beyond a reasonable doubt, that Krieger's distribution of fentanyl was the cause of Curry's death, had Krieger been charged with that offense. The court was persuaded, however, that a preponderance of the evidence established fentanyl as the cause of Curry's death, and concluded that "the Government has established that it is more probable than not that Ms. Krieger's distribution of fentanyl to Ms. Curry resulted in Ms. Curry's death." (R. at 154, p.8).
Once the court made the finding, by a preponderance of the evidence, that death resulted, it concluded that it was obligated to impose the mandatory statutory minimum under § 841(b)(1)(C) "if death results"-twenty years. As it turns out, twenty years was the one and only sentence the court could impose.
To understand this sentence, we must skip ahead of ourselves for a moment with a promise to circle back for a fuller explanation of the law. Under Apprendi v. New Jersey, 530 U.S. 466 (2000), the court could not impose a sentence greater than the twenty-year statutory limit for distribution of the drug-the crime to which Krieger pleaded guilty. But because the court found that Curry's death resulted from the distribution of fentanyl (by a preponderance of the evidence, but again, more on this later), the court had no choice but to impose the mandatory minimum sentence triggered by that fact-in this case, twenty years. In short, in this case the mandatory minimum triggered by facts found by the court based on a preponderance of the evidence in sentencing converged with the statutory maximum imposed for facts to which Krieger pleaded guilty as an element of the crime. The result was that the court could impose exactly one sentence-twenty years.The judge had no discretion whatsoever in the choice of sentence.
The district court was uncomfortable, it seems, with the fact that "Krieger, while convicted of distribution of divers amounts of narcotics, is being sentenced for homicide." (R. at 154, p.10). The court went on at some length criticizing the sentencing scheme, which allowed it absolutely no discretion in sentencing. In its written decision, the court declared that "had the Court the discretion to insist that the Government prove beyond a reasonable doubt that the distribution to which Krieger pleaded guilty resulted in Curry's death before imposing the statutory minimum sentence, it would have exercised that discretion in this case." Id. at p.10. The court made it clear that it was sentencing Krieger to twenty years as it felt ...