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Krieger v. United States

United States Court of Appeals, Seventh Circuit

November 22, 2016

Jennifer Lynn Krieger, Petitioner-Appellant,
United States of America, Respondent-Appellee.

          Argued May 24, 2016

         Appeal from the United States District Court for the Southern District of Illinois. No. 3:14-cv-00749-JPG - J. Phil Gilbert, Judge.

          Before Rovner, Sykes, and Hamilton, Circuit Judges.

          ROVNER, Circuit Judge.

         The first time this appeal was before us, on direct review, Jennifer Krieger was seeking to vacate the twenty-year sentence she received when her friend died after chewing a fentanyl pain patch provided by Krieger. At that time, she objected to the manner in which the government proved that "death resulted" from the distribution of the drugs-as a sentencing factor by a preponderance of the evidence, rather than as an element proved beyond a reasonable doubt-and also argued that the evidence was insufficient to support a finding that the victim's death had occurred because of the fentanyl. Given the statutory sentencing structure in place at the time, and the fact that the district court found, by a preponderance of the evidence, that death had resulted from the distribution, there was only one sentence that the district court could give, and that was twenty years. The district court expressed discomfort with its lack of discretion and the fact that it appeared that Krieger was being sentenced for homicide despite having been convicted only of distributing fentanyl-concerns that this court echoed on appeal. Nevertheless, based on then current law, we found no error and affirmed the decision of the district court. After Krieger's sentencing and after her direct appeal, the Supreme Court issued two decisions that touch on the very issues raised at Krieger's sentencing. Consequently, on June 30, 2014, Krieger filed a petition under 28 U.S.C. § 2255 asking the court to vacate, set aside, and correct her sentence based on new Supreme Court rules that she argues should be applied retroactively on collateral review.

         The facts below are both abridged and supplemented from the decision we issued on December 7, 2010, during Krieger's first (direct) appeal as reported in United States v. Krieger, 628 F.3d 857, 869 (7th Cir. 2010).

         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 Dura-gesic 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 to control pain. 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. 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 arriving paramedics 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. Neither the two red capsules nor the pipe were taken into evidence and tested. The syringe was not tested until three years later, at the request of the U.S. Attorney's office. 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.

         A 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 conceded that she gave Curry a patch. She denied, however, that the government proved sufficiently that Curry's death resulted from her abuse of the fentanyl patch.

         The government, it seems, also quickly realized that its case for "death resulting" faced some heavy obstacles. 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 United States 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 hydroco-done 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.

         Although the government dropped the "with death resulting" charge from the indictment, which would require the government to prove those facts beyond a reasonable doubt, the government nevertheless sought to have Krieger sentenced under a statute that enhances the sentence if the government can prove, by a preponderance of evidence, that death resulted from the drug's use. 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. Enhancing the sentence in this way leads to a significant change in the sentence. Krieger's pre-sentencing report set forth a recommended sentencing range of ten to sixteen months. If the government could prove by the much more lax preponderance of the evidence standard that Curry's death resulted from Krieger's distribution of fentanyl, those facts would trigger a mandatory minimum sentence of twenty years under 21 U.S.C. § 841(b)(1)(C).

         The court held a sentencing hearing on November 18 and 19, 2008, 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.

         The "death resulting" evidence was muddled and slim. Krieger presented evidence that the investigators and doctor performing the autopsy focused exclusively or primarily on the fentanyl evidence while ignoring evidence related to the many other drugs in Curry's system, in particular evidence of cocaine use. And of course, the misdeeds of the tax cheat, scofflaw medical examiner hung heavily in the air of the hearing. Nevertheless, after evaluating Dr. Heidingsfelder's demeanor on the stand and his evidentiary presentation, the district court concluded that although his testimony about his personal life was not credible, his testimony as to how he conducted the autopsy and how he arrived at his conclusion as to the cause of Curry's death was indeed credible. On appeal we accepted this factual finding regarding demeanor and credibility, noting that it could not be overturned unless we found that Heidingsfelder was incredible as a matter of law, which we could not. Krieger, 628 F.3d at 869.

         Heidingsfelder testified that he collected blood and vitreous fluid samples from Curry and sent them to a private and reputable laboratory in Indianapolis. That lab reported fentanyl in Curry's blood in the toxic to lethal range. Heidingsfelder found no external traumatic injuries and noted physical findings consistent with a drug overdose. Although Heidingsfelder noted needle marks on Curry's left elbow, and the lab report indicated the presence of several other drugs in Curry's system, Heidingsfelder testified that in his opinion, based on the facts known about her death, his examination of her body, and the lab report, Curry's death was caused by fentanyl toxicity, and not by the other drugs found in her system either taken alone or in combination. The government, likely because it recognized the problems with its main witness, Dr. Heidingsfelder, called three other experts: Dr. Mark LeVaugh, a physician specializing in forensic pathology, Dr. Michael Evans, a forensic toxicologist, and Dr. Cynthia Mor-ris-Kukoski, a forensic toxicologist employed by the FBI lab. All bolstered Heidingsfelder's finding of a toxic-to-lethal level of fentanyl. Krieger, in turn, called Dr. Long, a forensic toxi-cologist. Long criticized Heidingsfelder for failing to test the needle marks on Curry's body, for his choice of location to draw blood, and for recording an incorrect time of death, among other things. He also questioned whether blood samples had been mishandled or placed in vials with the incorrect preservative. He maintained that the reports from the lab used by Heidingsfelder and the FBI laboratory reports were either incomplete or inconsistent with each other. Finally, he testified that the blood was not tested immediately and therefore would not accurately indicate the use of cocaine. As he testified, "you can have somebody who overdoses on cocaine, and if the blood sample isn't taken relatively close and preserved properly, all the cocaine breaks down to benzoylec-gonine and becomes an un-interpretable result." Petitioner's Sep. App. at 33 (R. 165, p. 19, Page ID 715). He questioned whether the failure to investigate and follow up on other possible causes of death resulted in an incorrect determination of the cause of death. Nevertheless, he admitted that the lab reports showed the presence of fentanyl in Curry's system in amounts that were four times the therapeutic range and thus potentially lethal. According to Dr. Evans, a toxicologist who testified, the therapeutic range for fentanyl when used in such a patch is 1-3 nanograms per mil. Jennifer Curry's was more than 13 nanograms per mil. (R. 164, p. 178, page ID 636). Deaths from fentanyl occur at amounts from 2.2 to 100 nanograms per mil. Id.

         The police chief in charge of the investigation admitted to inadequate police work in some areas. Officers failed to collect into evidence and send for testing two red capsules in Curry's bedroom. The syringe was not tested until three years after Curry's death, but then was found to contain trace amounts of cocaine. The only items sent to the lab by the police department for testing were those pertaining to fentanyl.

         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. In view of the conflicting evidence as to the cause of Curry's death, the court concluded emphatically 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." United States v. Krieger, No. 06-CR-40001-JPG, 2009 WL 112428, at *4 (S.D. 111. Jan. 16, 2009), aff'd, 628 F.3d 857 (7th Cir. 2010).

         Once the court made the finding, by a preponderance of the evidence, that death resulted from the fentanyl, it concluded that it was obligated to impose the mandatory statutory minimum under § 841(b)(1)(C) "if death results" - twenty years. 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, given the twenty year minimum triggered by the court's finding, by a preponderance of the evidence, that Curry's death resulted from the distribution of fentanyl, neither could the court impose a sentence of less than twenty years. Without death resulting, the pre-sentence report reflected an advisory Guideline range of 10-16 months. And, in fact, our previous research indicated that the average length of incarceration for fiscal years 2006-2009 under 21 U.S.C. § 841 for distribution of fentanyl without death resulting was seven months. Krieger, 628 F.3d at 866. 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 at sentencing was uncomfortable, it seems, with the fact that "Krieger, while convicted of distribution of divers amounts of narcotics, is being sentenced for homicide." Krieger, 2009 WL 112428, at *6. The court went on at some length criticizing the sentencing scheme, and 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. The district court made it clear that it was sentencing Krieger to twenty years as it felt that it had no choice, but specifically noted

had the Court the discretion to sentence Krieger within the entire statutory range for the crime to which she pled guilty, it would have applied the adjusted base offense level called for in U.S.S.G. § 2D1.1(a)(2), finding that the Government has established the "death resulting" factor by a preponderance of the evidence. As a result, Krieger's base offense level would have been 38. The Court would have given her three points off for acceptance of responsibility. As a result the Court would have found a net offense level of 35, criminal history category I, with an advisory guideline range of 168 to 210 months.

Id. at *8.

         At the time of Krieger's first appeal, only facts that increased the penalty of the crime beyond the mandatory statutory maximum had to be submitted to a jury and proved beyond a reasonable doubt. Apprendi, 530 U.S. at 490. Because the "death resulting" factor only increased the mandatory minimum, under existing law at the time, it did not have to be pleaded in the indictment and proved to a jury beyond a reasonable doubt, but rather could be found by a judge using a preponderance of the evidence standard just as the district court did below. Krieger, 628 F.3d at 867, 869; Harris v. United States,536 U.S. 545, 557 (2002), overruled by Alleyne v. United States, 133 S.Ct. 2151 (2013). The district court stated, "the only reason the Court would have to consider "death resulting" to be an ...

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