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Fentanyl Dangers Particular
to Federal Cases

The Summary Law Firm May 12, 2022

The U.S. Drug Enforcement Agency (DEA) began warning in 2021 of an alarming rise in the sale of counterfeit pills laced with fentanyl, which is a synthetic opioid 50 to 100 times more potent than morphine. On top of that, the pandemic also led to an increase in opioid use, including fentanyl, and overdose deaths are now reaching nearly 100,000 annually.

Those who distribute opioids and other drugs are often charged under federal law with drug distribution or trafficking and can also be charged with conspiracy to distribute drugs, regardless of whether the individual has a lead or supervisory role in the offense or a relatively minor role. One can also be charged with the distribution of a controlled substance resulting in death if a user dies from an overdose.

The homicide charge is based on a section of the federal Controlled Substances Act, which mandates a sentence of 20 years to life if “death . . . results from the use of [the] substance” unlawfully distributed by the accused.” An early landmark case based on this provision even made it to the U.S. Supreme Court for review.

If you are under investigation or are being charged with a fentanyl-based crime in or around St. Louis, Missouri, or anywhere throughout St. Charles, St. Louis County, St. Clair County Illinois, or Madison County Illinois, contact me immediately at The Summary Law Firm. 

I am a former public defender and am now in private practice. I can help you with securing your release from custody and in developing and pursuing a strong defense. I am also dual-licensed with the ability to practice in both Missouri and Illinois, so reach out today.

Overview of the Fentanyl
Problem in Missouri

According to St. Louis Public Radio, fentanyl use began as a rural phenomenon but recently has spread – and taken its toll – among urban communities. According to the station’s report, St. Louis “ranks among the most deadly cities in the country for overdose deaths among African Americans.”

As mentioned earlier, the DEA is also reporting a rapid rise in counterfeit prescription drugs laced with fentanyl. A youth might purchase what is thought to be a sedative and end up dead from the fentanyl-laced inside.

According to the Centers for Disease Control and Prevention (CDC), there has been a 12.14 percent increase in overdose deaths in Missouri year over year, and nationwide it's a 12-month tracking of overdose deaths in the U.S., as of April 2022, it stood at just below 100,000 with results still pouring in.

Overdose as Homicide

Most states don’t have statutes that can treat an overdose death as a homicide, but the federal government does. As mentioned earlier, the Controlled Substances Act contains a provision for charging someone with a homicide who provides an illicit drug to someone who dies from it.

The most famous of these cases occurred back in 2010 when a man named Joshua Banka went on a drug-buying spree in Nevada, Iowa. A dealer named Marcus Burrage sold him one gram of heroin in a grocery store parking lot. He and his wife Tammy immediately cooked and injected some of the drugs while in their vehicle. They later had another injection upon returning home. After Tammy went to sleep, Joshua took another injection. The next morning Tammy found him dead on the bathroom floor.

Burrage was tracked down, arrested, and charged with heroin distribution, but federal prosecutors soon thereafter decided to charge him with homicide under the Controlled Substances Act. When the case went to trial, two toxicologists testified that Banka had the presence of multiple substances in his body, not just heroin. They concluded that heroin was thus just one of many contributing factors. Nonetheless, Burrage was convicted on both counts.

On appeal, the case made it to the Supreme Court, which ruled that, for the homicide part to stick, heroin would have had to have been the “but-for” factor in causing Banka’s death.

Other Possible Fentanyl Charges

Though a homicide charge is possible on the federal level, it is sometimes difficult to prove due to difficulties in applying the “but-for” standard. That doesn’t mean that other serious federal and state charges are not still on the table, including possession of a controlled substance; possession with intent to distribute; drug distribution and delivery; drug manufacturing; and drug trafficking.

Some groups, like the Drug-induced Homicide Organization and Health in Justice, are arguing for states to pass overdose homicide laws, while those on the other side of the issue are arguing that we need to go after the manufacturers and distribution outlets rather than street vendors. As of now, however, only federal prosecutors have the means to charge a homicide, though state police and prosecutors have been known to levy murder charges for overdose deaths as well.

Defenses Against Drug Charges

Prosecutors have a high legal bar to meet in criminal cases, and often they fall short. Remember, they have to prove your guilt “beyond a reasonable doubt.” A defense attorney’s job is to cast doubt on all evidence and witness testimony the prosecutors assemble against you.

In addition, there are procedural and other violations that can lead to a dismissal of a case. One is an illegal search and seizure, during which law enforcement obtains evidence without having the reason or authority to do so. Another is entrapment. This means the police set you up – trap you into a situation where they can arrest you for a drug crime.

Still, another is that authorities forgot to read you what is called your Miranda Rights, which include the right to remain silent and not answer any questions by police or prosecutors. If prosecutors try to use one of your statements against you and you were never apprised of your Miranda Rights, that statement can be thrown out.

Get the Legal Guidance and Representation You Need

Drug charges, especially at the federal level, can lead to serious consequences, including time behind bars. Even mere possession can be charged as a felony, depending on the type of drug and quantity involved.

If you’re under investigation or facing fentanyl-related or other drug charges in or around St. Louis, Missouri, contact me immediately at The Summary Law Firm. I will work with you to build a strong defense aimed at the most favorable outcome. Your initial consultation is free.