Defendant in W.Va. fatal heroin death to get sentence reduced

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A U.S. Supreme Court decision that struck down a 1980s-era weapon in the war on drugs means a West Virginia man likely will see his pending 12-year prison sentence cut in half.

Justin Withers, 29, admitted that he supplied heroin to a Pennsylvania native who died of an overdose at a Pittsburgh hospital in 2011.

His lawyer and federal prosecutors in Wheeling last week agreed to alter his plea to reduce his sentence because the government can’t prove the heroin alone killed the man.

The victim, James Hayes III, 22, a Waynesburg native living in West Virginia, also had ingested oxycodone and was “high as a kite” when he injected the heroin, Mr. Withers’ lawyer said.

Under the 1986 law that prosecutors used to indict Mr. Withers, prosecutors had only to show that the heroin was a “contributing cause” to Mr. Hayes’ death for Mr. Withers to receive a mandatory minimum 20-year sentence up to life behind bars.

But in January, the Supreme Court rejected that part of the law, ruling in an Iowa case that a dealer can receive that sentence only if prosecutors prove that the supplied drug was the one that killed the user. Most addicts use lots of different drugs, so the new burden is pretty high. The U.S. attorney’s office in Wheeling couldn’t meet it, so it struck a deal with Mr. Withers.

The 2013 indictment against him and a co-defendant, Curtis Adams, was the first time the law had been used in the northern district of West Virginia.

The northern panhandle of the state has been plagued by heroin overdoses in recent years and the state as a whole has the highest overdose rate in the United States.

In Mr. Withers’ case, the U.S. attorney’s office in January agreed to drop the original indictment and allow him to plead to a lesser offense of aiding and abetting in the distribution of heroin.

Prosecutors made that decision because they knew the Supreme Court was reviewing the Iowa case, Burrage v. United States.

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.

Because of that, Mr. Burrage challenged his sentence and the Supreme Court agreed with his attorney.

Prosecutors said Mr. Withers’ sentence should be reduced to bring it in line with that of Mr. Adams, who is serving 60 months.

The judge has yet to accept the new plea.


Torsten Ove: tove@post-gazette.com or 412-263-1510. First Published May 13, 2014 12:09 PM


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