Sunday, September 19, 2004
More cases fall under drug law
In drug distribution cases resulting in death or serious bodily injury, Western District prosecutors are frequently using a law with stricter sentences.
After Radford University student William Warren Devers Jr. supplied the OxyContin that in part caused the fatal overdose of a longtime friend, a federal judge sentenced him to probation.
But after Vincent Jennell Jr. of Salem pleaded guilty to supplying heroin that led to two overdose deaths, another federal judge sentenced him to 20 years.
Prosecutors in the Western District of Virginia have been making increasing use of a federal law that says if defendants are convicted of distribution of drugs that leads to death or serious bodily injury, they face a mandatory prison sentence of 20 years to life. The law was passed in 1986, in the wake of the cocaine overdose death of University of Maryland basketball star Len Bias.
Prosecutor Donald Wolthuis attributed the number of prosecutions of defendants whose alleged distributions led to death or serious bodily injury to what he called a "shocking and chilling increase" in overdoses in Southwest Virginia from the abuse of opiates such as the prescription painkiller OxyContin, methadone and heroin.
Dr. William Massello of the state medical examiner's office for Western Virginia said in March that fatal overdoses for prescription drugs are rising rapidly in Western Virginia. In 2003, 213 people died from drug overdoses in the western part of the state, Massello said.
People charged in Southwest Virginia have ranged from a doctor to dealers to addicts to dabblers.
Prosecutions alleging that distributions led to death or serious bodily injury have bubbled up around the United States, and some states have passed their own version of the law and won some convictions. But prosecutors in the Western District have used the law in an increasing number of cases.
By contrast, federal public defenders in the Eastern District of Virginia only recall one case in the past few years in which prosecutors argued that a drug distribution resulted in death or serious bodily injury, Assistant Federal Public Defender Gerald Zerkin said. That figure wouldn't include a small number of cases in which the defender's office had conflicts or cases in which defendants hired their own attorneys.
Wolthuis acknowledged that his office's prosecutions for death or serious bodily injury have had a range of results. Part of that likely has to do with the strength of the evidence in each case. But part of it also has to do with how the federal system works.
Despite the enaction of federal sentencing guidelines nationwide in 1987 in an attempt to make sure defendants in the United States receive similar sentences for the same crimes, some of the death and serious injury cases show just how much defendants' fate can change depending on whether they cooperate with federal prosecutors or not.
Roanoke attorney Gary Lumsden, who has represented defendants on death or serious bodily injury cases, said he thinks use of the law is appropriate when used with reason. He argued that in some cases, prosecutors are taking cases where the connection from distribution to overdose is nebulous.
"It becomes a device in order to get people to plead guilty," said Lumsden. Defendants are intimidated by the potential 20-year sentence and don't want to take that chance, he said.
The Western Virginia death and serious bodily injury cases have resulted in a range of outcomes.
The defendants who faced the largest number of allegations were Roanoke pain specialist Cecil Byron Knox; his office manager, Beverly Gale Boone; and Tiffany Durham, who worked at Knox's former practice, Southwest Virginia Physical Medicine and Rehabilitation. They were each charged in February 2002 with distribution of narcotics outside the scope of legitimate medical practice that allegedly led to the death or serious bodily injury charges.
Durham pleaded guilty to a lesser charge. Boone was acquitted on all the drug charges and Knox on most of them. Boone and Knox face a second trial in November on racketeering, conspiracy and fraud charges. And Knox also still faces charges that his prescriptions led to death or serious bodily injury.
In another case, a defendant was charged with causing his own overdose. In November, Deshawn Walter Anderson swallowed cocaine as Roanoke police chased him. He later had to be brought back to life at Carilion Roanoke Memorial Hospital.
Prosecutors agreed to drop the death or serious injury part of the distribution charge against Anderson in exchange for his guilty plea to possessing more than 5 grams of cocaine. He was sentenced to four years in prison.
In the case of Radford student Devers, prosecutors asked the judge to drop the death and serious bodily injury part of the case, based in part on evidentiary issues and on requests from the victim's family.
Other cases have resulted in longer sentences. In June, federal judge James Turk sentenced seven members of a heroin conspiracy ring that spanned from Philadelphia to the Roanoke Valley. After a bench trial, Turk determined that the members of the conspiracy, who had pleaded guilty to heroin distribution charges, should not be held responsible for nonfatal overdoses that resulted.
Turk sentenced defendants in the case, most of whom were heroin users themselves, according to evidence at their guilty pleas, to sentences ranging from three to five and a half years. Turk was also concerned that under federal sentencing guidelines, the leader of the conspiracy, Nicholas Weir of Philadelphia, got the lightest sentence of 32 months.
Defendants in a related case weren't so lucky. Issac Ramos and Javier "Angel" Cruz, both of Philadelphia, were charged along with Vincent Jennell Jr. in connection with the overdose deaths of Dustin Rhodes and Raymond Moore in June 2000. Jennell, a self-confessed drug addict, admitted to preparing the syringe that led to Rhodes' death and actually injecting Moore.
Jennell took responsibility for their deaths with his guilty plea, despite the fact that the autopsies of both men showed that they had other substances in their system that may have contributed to their overdose deaths. Jennell's attorney, Chris Kowalczuk, did not return a call for comment.
Supplier Cruz, meanwhile, wound up with a sentence of about 10 1/2 years on the same charge. Ramos, who fled after he was charged, eventually pleaded guilty to the distribution that resulted in death or serious bodily injury charge. He was later released on bond and assisted federal authorities with an ongoing investigation.
Ramos was also sentenced to 20 years, but prosecutor Wolthuis has asked Turk to sentence him to less time under federal sentencing guidelines because of Ramos' acceptance of responsibility in the case.
In a third case in which defendants were charged as part of a drug conspiracy that led to an overdose, Ronnie Darnell Early was also sentenced to the mandatory minimum sentence of 20 years.