Heroin seller faces jail in fatal W.Va. overdose

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In a case impacted by a pending U.S. Supreme Court review, federal prosecutors in West Virginia have struck a deal with a man accused of supplying heroin to an addict who died of an overdose, the first time that federal law has been applied in the northern district of the Mountain State.

Justin Withers, 29, of Wellsburg, W.Va., pleaded guilty last week in a Wheeling courtroom 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 agreed to an arrangement with the U.S. attorney's office under which prosecutors dropped their original indictment and allowed him to plead to 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 plea was triggered in part by a U.S. Supreme Court case involving a 2010 overdose death 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 in federal prison.

Prosecutors said the two men, bothdrug addicts, 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, W.Va., in exchange for jewelry and gold.

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 has been plagued by heroin overdose deaths.

The state as a whole ranked No. 1 in the nation in per capita drug overdose deaths in 2010, according to a report by the Trust for America's Health, mostly from prescription pain pills. But Mr. Ihlenfeld said that heroin, the majority of it from Pittsburgh and Baltimore, has since supplanted pills because it is cheaper and more readily available.

Mr. Ihlenfeld said his office is aggressively pursuing heroin cases and will charge dealers with causing the deaths of users if they can prove it.

But that can be difficult because addicts typically take more than one kind of drug.

In Hayes' case, prosecutors would have had trouble showing that heroin alone killed him.

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

In addition to forensic tests that showed oxycodone in his blood, Mr. McCoid said, statements from the defendants also indicated Mr. Hayes had ingested the drug long before he injected the heroin.

"He was high as a kite before he even bought the heroin," he said. "Hayes was not some innocent bystander."

Because of the presence of the other drug, prosecutors could not prove the heroin alone was the cause of death.

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, 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 the mandatory 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 federal prosecutors must prove that heroin directly caused a death or whether it's enough to show the drug was a contributing factor.

Torsten Ove: tove@post-gazette.com or 412-231-0132.


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