Krieger v. United States

• Citation: 842 F.3d 490
• Decision Date: 22 November 2016
• Docket Number: No. 15-2481,15-2481
• Parties: Jennifer Lynn Krieger, Petitioner–Appellant, v. United States of America, Respondent–Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

842 F.3d 490

Jennifer Lynn Krieger, Petitioner–Appellant,

v.United States of America, Respondent–Appellee.

No. 15-2481

United States Court of Appeals, Seventh Circuit.

Argued May 24, 2016

Decided November 22, 2016

William J. Barrow, Attorney, Mayer Brown LLP, Washington, DC, for Petitioner–Appellant.

George A. Norwood, Attorney, Office of the United States Attorney, Benton, IL, for Respondent–Appellee.

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 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 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 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.

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 LeVaughn, a physician specializing in forensic pathology, Dr. Michael Evans, a...