DRUG USERS' INJURIES COULD LENGTHEN SENTENCES

Should drug dealers be held responsible for what happens to their customers?

That question is at the center of two heroin conspiracy cases pending in
federal court. Six people have overdosed, though not fatally, as a result
of one of the heroin conspiracies, federal prosecutor Donald Wolthuis has
said. At least two people died as a result of a second heroin distribution
case, he said.

If a judge or jury determines they should be held responsible, the
defendants could face a mandatory minimum prison sentence of 20 years to a
potential life sentence under federal law. The cases also mark an increased
use of the law, which until last year had been used in less than a handful
of federal cases, said Tom Bondurant, criminal chief of the U.S. Attorney's
Office.

"People are getting hurt," said U.S. Attorney John Brownlee. "It's our
responsibility to protect the public. When drug dealers are causing death
or serious bodily harm, we're going after them."

But defense attorneys around the country, while not condoning drug
distribution, have raised the question of whether their clients should face
the consequences for other people's actions once those people get the drugs.

"You're not calling it murder, but you're treating it that way in some
respects," with the potential life sentence, said Mycki Ratzan, a Miami
lawyer who specializes in drug cases and is a member of the National
Association of Criminal Defense Lawyers.

The arguments over whether people who have made drugs available - even
through legitimate channels - should be held responsible for what happens
when people abuse them is also likely to come up in the case of Roanoke
pain specialist Dr. Cecil Byron Knox and two of his former employees,
Beverly Gale Boone and Tiffany Durham.

The three are facing trial in January on charges including that Knox, with
Boone and Durham's help, overprescribed drugs that either killed or
seriously injured 10 of his patients. Federal prosecutors will not confirm
how many deaths versus serious injuries, they argue, have resulted. ut a
federal affidavit has referred to the overdose of one of Knox's former
patients, Mark Wimmer. A wrongful-death lawsuit has been filed on behalf of
Wimmer and another former patient who also overdosed, John Tisdale.

Lawmakers - both at the state and federal level - have made it clear that
they think people who distribute drugs should be held accountable if a
certain level of harm befalls the person who takes the drugs.

Under state law, a person can be charged with felony murder if someone is
killed in the course of another felony, such as robbery.

In one case in Salem, a Connecticut man, Matthew Jason Sebas, is facing two
felony murder and two drug distribution charges for the fatal overdoses of
two of the people he traveled with while following the rock band String
Cheese Incident. Prosecutors argued that Sebas supplied Andrew Briggs and
Amanda Parks the morphine that led to their overdoses. And in the last
General Assembly session, Del. Morgan Griffith, R-Salem, sponsored
legislation that took effect July 1. The law says parents of juveniles can
sue adults who sold or gave drugs to their children for the cost of their
treatment and rehabilitation, and also recover damages for emotional pain
and suffering.

Griffith conceded he didn't know how often the law would be used, because
drug dealers don't tend to have a lot of assets. If they do, the assets
were often acquired illegally and are seized by law enforcement.

The legislation exempts health care practitioners who prescribe medication
"in good faith."

Meanwhile, federal drug laws mandate a sentence of at least 20 years for
people who distribute drugs that result in death or serious injury, though
the amount of drug required to qualify for the law varies.

Wolthuis said the increasing abuse of opiates such as heroin, methadone and
OxyContin - which, when abused, are more likely to result in death than
other drugs - is the reason the death and serious injury charge is coming
up in more federal cases locally.

Heroin is also much purer than it used to be, Wolthuis said, and thus more
potent. Fifteen years ago, the heroin mixtures that law enforcement
officials tested were about 6 percent to 7 percent pure, Wolthuis said. The
heroin from the two pending conspiracy cases tested from about 85 percent
to 90 percent pure, he said.

The law went on the books in the mid-1980s as part of a number of laws
Congress passed to combat drugs. Bondurant was one of the prosecutors in
the first case involving the death or serious injury law in the Western
District.

William S. "Billy" Davis, a Pittsylvania County tobacco farmer and drug
dealer, was convicted under the law in 1989 in the cocaine overdose of
19-year-old Kimberly Dane Kirk. He was sentenced to 24 years in prison,
which Davis, then 50, likened to a death sentence. He is serving his time
in Kentucky, according to the Bureau of Prisons, with a release date of 2013.

Serious bodily injury is defined under federal law as causing a substantial
risk of death, physical disfigurement, or loss of mental or physical
functioning.

Ratzan argued that the definition is "very, very broad. It leaves some
great interpretation and deference to the courts." The Miami lawyer said
she has seen cases in Florida in which judges have decided that a permanent
facial scar or a broken limb qualifies as serious injury.

"How far does the connection go?" Ratzan asked. "I don't know where it
ends. You have to rely on the integrity of the prosecutors to use it in
only the most egregious cases."

What qualifies as serious injury is part of what U.S. District Judge James
Turk will decide at the Sept. 30 bench trial of seven defendants who
pleaded guilty last week to conspiracy with intent to distribute more than
100 grams of heroin . Wolthuis has said he is not alleging that the heroin
distribution in that case led to any overdose deaths.

Robert William Perry, 28; Brian Anthony Loy, 30; Shawn Marie McCarty, 25;
Steven Edward Songer, 24, all of Roanoke; David Anthony Benson, 26, of Blue
Ridge; Jackie Lewis Persiani, 27, of Goodview; and Nicholas Weir, 23, of
Philadelphia, all face a mandatory minimum sentence of five years before
the serious injury aspect - which their attorneys have reserved the right
to argue - has even been decided.

In what Wolthuis said is a related heroin conspiracy case of two other
Philadelphia men, Javier "Angel" Cruz, 22, and Issac Ramos, 22, and Vincent
Jennell Jr., 35, of Salem, the federal prosecutor will argue that the
conspiracy led to at least two fatal overdoses. Cruz, who is not the same
Javier Cruz who figured in federal drug investigations during the 1990s,
and Jennell have pleaded not guilty; their trial is set for Aug. 15. Ramos
is still at large.

Roanoke attorney David Damico, who is representing Benson in the first
conspiracy case, said one of the arguments he anticipated would be raised
was whether the heroin that the conspirators admittedly distributed was the
only factor in the overdoses.

"Whatever happened to some of these folks was not fatal, and actually could
have been influenced by other factors," Damico said. He does not dispute
that the overdoses occurred, but said some of the people who overdosed may
have mixed the heroin with other drugs or alcohol.

Roanoke attorney Deborah Caldwell-Bono, who is representing Weir, said she
is troubled by what she sees as the law getting away from people taking
responsibility for their own actions.

"If they hurt themselves taking heroin, why should you go back and hold the
other person responsible?" Caldwell-Bono asked.

Following that logic, she questioned, why isn't the state held responsible
for selling alcohol to someone who then drives while drunk and kills
another person?

Damico also said he would question whether every member of the conspiracy
should be held responsible if another person's distribution led to an overdose.

Roanoke attorney Chris Kowalczuk, who is representing Jennell, declined to
comment on that case, but said generally that conspiracy laws are "very
far-reaching."

"There are times when seemingly unconnected people get brought together by
these conspiracy counts in a way they never imagined."

Kowalczuk added that judges generally take into account the scope of the
role a defendant has played in a conspiracy when they get sentenced and
mete out punishment appropriate for their level of involvement.

The issue of death or serious bodily injury can also be revisited at
sentencing, however, and could result in more prison time under federal
guidelines. But the prosecution may also make motions for the sentences of
the convicted to be reduced further if they have cooperated with the
prosecution.