W.Va. man pleads in rare federal death-by-heroin case

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The second of two men charged federally with supplying heroin to a 22-year-old West Virginia man who died of an overdose, the first case of its kind in the northern district of the mountain state, has pleaded guilty in a Wheeling courtroom.

Justin Withers, 29, of Wellsburg, entered the plea Tuesday and will receive more than 12 years in prison if the judge accepts the plea.

He had been facing a mandatory 20-year sentence if convicted at trial but struck a deal with the U.S. attorney’s office under which prosecutors charged him with the lesser offense of aiding and abetting in the distribution of heroin.

Mr. Withers’ lawyer, Robert McCoid, and U.S. Attorney William Ihlenfeld said the deal was triggered in part by a pending U.S. Supreme Court case involving a 2010 overdose in Iowa in which a defendant is challenging the federal law under which Mr. Withers was charged.

Mr. Withers’ co-defendant, Curtis Adams, also 29 and from Wellsburg, is already serving five years.

Prosecutors said the two men, both junkies, traveled to Steubenville, Ohio, on March 22, 2011, to obtain the heroin and then sold it to another regular heroin user, James Michael Hayes III, 22, in Follansbee in exchange for jewelry and gold.

Mr. Hayes, a native of Waynesburg, Pa., overdosed and was flown by helicopter to a Pittsburgh hospital, where he died.

The indictment was brought under a law that mandates a 20-year sentence for a defendant who supplies drugs to someone who dies from ingesting them.

The case represents the first time the law had been applied in northern West Virginia, which Mr. Ihlenfeld said has been plagued by heroin overdose deaths.

But proving that heroin alone killed Mr. Hayes was a problem for prosecutors because he also had taken oxycodone.

“That’s another hurdle we would have to overcome,” said Mr. Ihlenfeld. “These cases are challenging. Quite frequently these victims have other substances in their systems.”

Mr. McCoid said statements from the defendants indicated Mr. Hayes had taken the oxycodone before he bought the heroin.

“Hayes was not some innocent bystander,” Mr. McCoid said.

Because of the presence of the other drug, prosecutors could not prove the heroin alone was the cause of death. So they filed the new charge against Mr. Withers this week and agreed to drop the original indictment.

Meanwhile, in a case called Burrage v. United States, the Supreme Court will decide what to do about the law.

In that case, an Iowa man named Joshua Banka died after ingesting a cocktail of marijuana, OxyContin, prescription drugs and heroin. He bought the heroin from Marcus Burrage, who was convicted of causing the death and sentenced to 20 years.

Medical experts said the heroin contributed to Mr. Banka’s death but could not determine to what extent the other drugs may have helped kill him.

Mr. Burrage challenged his sentence and the Supreme Court in November agreed to examine the issue. The justices will determine if prosecutors must prove that heroin directly caused a death or can be a contributing factor.

Torsten Ove: tove@post-gazette.com or 412-263-1510.


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