This article examines how federal law enforcement has responded to the opioid epidemic nationally and in a variety of locales. We focus in depth on two initiatives, including prosecution in opioid-death cases, undertaken by the U.S. Attorney's Office in Connecticut.
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References
1.
Sentencing Memorandum by USA at 4-6, USA v. Miles, No. 3:16-cr-00101-AVC (D. Conn. Oct. 31, 2016).
R.A.Ruddet al., “Increases in Drug and Opioid-Involved Overdose Deaths — United States, 2010–2015,”Morbidity and Mortality Weekly Report65, no. 50 & 51 (2016): 1445–1452, at table 2, available at <https://www.cdc.gov/mmwr/volumes/65/wr/mm655051e1.htm> (last visited January 18, 2017).
9.
OCME, Connecticut Accidental Drug Intoxication Deaths, supra note 3.
Department of Justice, Executive Office for the United States Attorneys, “Addressing the Heroin and Opioid Crisis,”United States Attorneys’ Bulletin64, no. 5 (2016): 1-91, available at <https://www.justice.gov/usao/file/895091/download> (last visited January 18, 2017) [hereinafter U.S. Attorneys’ Bulletin].
17.
Id.
18.
Id. at 1; see also Memorandum from Loretta E.Lynch, Deputy Attorney General’s Office, “Department of Justice Strategy to Combat Opioid Epidemic,”September21, 2016, available at <https://www.justice.gov/opioidawareness/file/896776/download> (last visited January 18, 2018).
19.
Appendix to Memorandum from Loretta E.Lynch, Deputy Attorney General’s Office, “Department of Justice Strategy to Combat Opioid Epidemic,”September21, 2016, available at <https://www.justice.gov/opioidawareness/file/897231/download> (last visited January 18, 2018).
20.
These include Immigration and Customs Enforcement, Homeland Security Investigations, Customs and Border Protection, the Department of Defense, and the Intelligence Community, among others. See Federal Efforts to Combat the Opioid Crisis: A Status Update on CARA and Other Initiatives Before the House Committee on Energy & Commerce, 115th Cong. 9 (2017) (statement of Neil D. Doherty, Deputy Assistant Administrator, DEA), available at <https://www.dea.gov/pr/speeches-testimony/2017t/102517t.pdf> (last visited January 18, 2018).
21.
Id.
22.
Fentanyl: The Next Wave of the Opioid Crisis Before the House Subcommittee on Oversight & Investigations, 115th Cong. 7 (2017) (statement of Louise D. Milione, Assistant Administrator, DEA), available at <https://www.dea.gov/pr/speeches-testimony/2017t/032117t.pdf> (last visited January 18, 2018).
23.
U.S. Department of Health and Human Services [HHS], Office of Inspector General [OIG], “Enforcement Actions,”available at <https://oig.hhs.gov/fraud/enforcement/index.asp> (last visited January 18, 2018).
See, e.g., B.Meier, “U.S. Maker of OxyContin Painkiller to Pay $600 Million in Guilty Plea,”New York Times, May11, 2007, available at <http://www.nytimes.com/2007/05/11/business/worldbusiness/11iht-oxy.1.5665287.html> (last visited April 20, 2018) (noting drug industry criticism that “while the fines sent an important message, the amounts were far too low, given the vast profits from OxyContin sales and the problems caused by the drug”).
U.S. Attorneys’ Bulletin, supra note 16, at 47-51. Applicable cases the authors found during our own research include United States v. Waldrip, 859 F.3d 446 (7th Cir. 2017); Krieger v. United States, 842 F.3d 490 (7th Cir. 2016); United States v. Lawler, 818 F.3d 281 (7th Cir. 2016); United States v. Alvarado, 816 F.3d 242 (4th Cir. 2016); United States v. Salyers, 661 Fed. Appendix. 862 (2016); United States v. Ford, 750 F.3d 952 (8th Cir. 2014).
50.
U.S. Attorneys’ Bulletin, supra note 16, at 51-52.
See, e.g., Luck, supra note 68; “DEA Task Force Dismantles Hartford Distribution Ring,” supra note 68.
70.
See e.g., “DEA Task Force Dismantles Hartford Distribution Ring,” supra note 68 (quoting DEA Special Agent in Charge Michael J. Ferguson).
71.
Then-United States Attorney for the District of Connecticut Deirdre M. Daly and Assistant United States Attorney Robert M. Spector, interview by authors (October 11, 2017) [hereinafter Interview with U.S. Attorney Daly].
In fact, between November 2011 and October 2013, the doctor was the eight highest prescriber of Schedule II through IV controlled substances in Connecticut, on a list that included hospitals. See id.
USAO-CT, “Norwalk Doctors Charged with Operating ‘Pill Mill,’ Health Care Fraud and Money Laundering,” supra note 74.
76.
Id.
77.
Presentation by AUSA Spector to “Law and the Opioid Crisis” Seminar, Yale Law School, September 18, 2017.
78.
Personal communication from AUSA Spector to authors (January 23, 2018). Additionally, eleven Connecticut state arrests resulted from investigations in which DEA was involved during that period. Id. (November 6, 2017). See infra notes 82-88 and accompanying text for further States Attorney’s statistics and discussion.
79.
Id.; see also Brian D. Boyle, Assistant Special Agent in Charge of the New England Field Division, DEA, interview by authors (October 25, 2017); Personal communication from AUSA Spector to authors (November 1, 2017). For further overdose statistics prosecuted by USAO-CT, see our separate sidebar, Press Releases on Overdose-Death Prosecutions, 2013-2017.
80.
The United States Sentencing Guidelines are a complex set of sentencing recommendations that are not binding on sentencing judges, but which judges often follow. See USSC Sentencing Guidelines Chapter 2D, supra note 39. The offense levels of these minor distributors (and their corresponding sentences) are significantly below that of major distributors. See USSC, 2016 U.S. Sentencing Guidelines Sentencing Table, available at <https://www.ussc.gov/sites/default/files/pdf/guidelines-manual/2016/Sentencing_Table.pdf> (last visited January 19, 2018); See also Interview with U.S. Attorney Daly, supra note 71.
Personal communication from AUSA Spector to authors (November 15, 2017).
84.
Personal communication from Judicial District of Middlesex Inspector Mark Miele to author (RLR) (December 4, 2017).
85.
Of course, this made it difficult to compile our own data set. See personal communication from New Haven Assistant State’s Attorney Karen Anne Roberg to author (RLR) (January 10, 2018); personal communication from Windham State’s Attorney Anne F. Mahoney to author (RLR) (January 12, 2018); see also personal communication from Danbury State’s Attorney Stephen J. Sedensky III to author (RLR) (January 10, 2018); personal communication from Ansonia-Milford State’s Attorney Kevin D. Lawlor to author (RLR) (January 10, 2018).
86.
Personal communication from Fairfield State’s Attorney John C. Smriga to author (RLR) (January 11, 2018).
87.
Personal communication from New London State’s Attorney Michael L. Regan to author (RLR) (January 11, 2018).
88.
Personal communication from Ansonia-Milford State’s Attorney Kevin D. Lawlor to author (RLR) (January 10, 2018).
89.
Id.
90.
Personal communication from AUSA Spector to authors (November 14, 2017).
91.
Id. (January 23, 2018).
92.
Sentencing Memorandum by USA at 4, USA v. Miles, No. 3:16-cr-00101-AVC (D. Conn. Oct. 31, 2016).
See “Statewide Initiative Targets Distributors of Heroin and Opioids That Cause Overdose Deaths,” supra note 81.
97.
Interview with U.S. Attorney Daly, supra note 70. For statistics on the rapid increase in overdose-death prosecutions, see our separate sidebar on press releases, Press Releases on Opioid-Overdose Death Prosecutions, 2013-2017.
Transcript of Sentencing at 39, USA v. Ocasio, No. 3:17-cr-00043-AWT (D. Conn. Aug. 28, 2017).
105.
Id. at 24.
106.
Id. at 25-26.
107.
See Transcript of Sentencing Hearing at 28, USA v. Commer-ford, No. 3:16-cr-00089-AWT (D. Conn. Sept. 12, 2016).
108.
See e.g., Transcript of Sentencing at 38-40, Ocasio (D. Conn. Aug. 28, 2017) (noting the defendant’s substance abuse and rehabilitation challenges); Judgment, USA v. Pina, No. 3:16-cr-00150-MPS (D. Conn. Nov. 30, 2016) (including in the sentence a “somewhat longer-than-usual period of supervised release to facilitate the defendant’s efforts to stay drug-free following his release”); Judgment at 2, USA v. Mignani, No. 3:17-cr-00059-JAM (D. Conn. June 22, 2017) (recommending to Bureau of Prisons that “the defendant be designated to a facility that has a residential drug abuse treatment program”).
109.
Transcript of Sentencing at 40, Ocasio (D. Conn. Aug. 28, 2017).
110.
Id.
111.
USA v. Russow, No. 3:14-cr-00084-JBA, 2015 BL 63735, slip op. at 1 (D. Conn. Mar. 10, 2015) (citing Plea Agreement).
112.
Id. at 1-2.
113.
See id. at 1; United States Sentencing Commission, 2016 U.S. Sentencing Guidelines, at § 5K2.1 (Departure for Death), available at <https://www.ussc.gov/guidelines/2016-guidelines-manual/2016-chapter-5#5k21f> (last visited January 19, 2018) [hereinafter U.S. Sentencing Guidelines § 5K2.1]. Guidelines section 5k2.1 is essentially an upward departure, and USAO-CT applies the Burrage standard for the departure. If the Office has “but-for” causation, it uses the enhancement. If the Office does not have “but-for” causation, the Office will argue for an upward variance under 18 U.S.C. § 3553(a) (“factors to be considered in imposing a sentence”). Personal communication from AUSA Spector to authors (January 23, 2018).
114.
Russow, slip op. at 6 (D. Conn. Mar. 10, 2015) (citing United States v. Cordoba-Murgas, 233 F.3d 704, 710 (2d Cir. 2000)).
115.
Cordoba-Murgas, 233 F.3d 704, at 710.
116.
Russow, slip op. at 7-8 (D. Conn. Mar. 10, 2015). The Government agreed, see Sentencing Memorandum by USA at 5, Russow (D. Conn. Feb. 12, 2015).
117.
See 18 U.S.C. §§ 3553(a), 3661 (2012); United States v. Booker, 543 U.S. 220 (2005).
118.
See USA. v. Commerford, No. 3:16-cr-00089-AWT (D. Conn. Aug. 12, 2016).
Personal communication from AUSA Spector to authors (January 23, 2018).
122.
Id. (November 29, 2017).
123.
USAO-CT, “The Opioid Crisis Hits Home: Stories from Connecticut,”January13, 2017, available at <https://www.youtube.com/watch?v=tKWr1izNHlo> (last visited January 19, 2018).
124.
See Sentencing Memorandum by USA at 8, USA v. Esposito, No. 3:16-cr-00209-AVC (D. Conn. Jan. 20, 2017).
125.
Id. at 11.
126.
Personal communication from AUSA Spector to authors (November 29, 2017).
127.
See, e.g., 21 U.S.C. § 841(b)(1)(A)(i) (2012) (weight enhancements); id. § 851 (2012) (second offender enhancement); id. § 859 (2012) (distribution to persons under twenty-one years of age); id. § 860 (2012) (distribution within 1,000 feet of a protected location).
128.
Plea Agreement, USA v. Pina, No. 3:16 cr-00150-MPS (D. Conn. Aug. 4, 2016); Judgment, Pina, (D. Conn. Nov. 30, 2016).
See, e.g., Connecticut General Statutes § 21a-277(a) (2017) (sale of narcotics); id. § 21a-278(b) (sale of narcotics by non-drug dependent person); id. § 53a-20 (cruelty to persons); id. § 53a-21(a)(1) (risk of injury); id. § 53a-58 (criminally negligent homicide); id. § 53a-63 (reckless endangerment).
137.
Connecticut General Statutes § 53a-55a(3) (2017).
138.
State v. Wade, 942 A.2d 1085 (Conn. App. 2008).
139.
Connecticut General Statutes § 53a-56(a)(1) (2017).
140.
See OCME, Connecticut Accidental Drug Intoxication Deaths, supra note 9.
141.
Personal communication from Danbury State’s Attorney Stephen J. Sedensky III to author (RLR) (January 10, 2018) (referencing the case State v. Patrick Hackett-DBD-CR16-0153050-S, which was disposed on January 3, 2018).
The Office maintains that “[r]esources are not being diverted away from other investigations or other cases” for HEAT presentations. Rather, an effort has been made by the AUSAs — who view the present situation “as an emergency” — to volunteer their time “on top of their regular workload.” Personal communication from AUSA Spector to authors (January 24, 2018).
HHS, Office of the Surgeon General, Facing Addiction in America: The Surgeon General’s Report on Alcohol, Drugs, and Health, November2016, at 3-30 [hereinafter Surgeon General’s Report].
ChuckRosenberg, Former Acting Administrator, DEA, keynote address of The Opioid Crisis in Connecticut Conference, Yale Law School, September29, 2017 [hereinafter Rosenberg Keynote].
Surgeon General’s Report, supra note 159, at 3-27.
167.
Id. at 3-14.
168.
Id. at 3-12; id. at 3-32.
169.
The Connecticut Office has not received grant money for HEAT. Thus, the volunteer-based program has no financial resources to pay for success measuring techniques, such as long-term tracking of students, though the Office would welcome this kind of evaluation. Personal communication from AUSA Spector to authors (January 24, 2018).
Personal communication from AUSA Spector to authors (February 5, 2018).
173.
See Surgeon General’s Report, supra note 159, at 3-1.
174.
Personal communication from AUSA Spector to authors (January 24, 2018). For examples, see supra note 163.
175.
See, e.g., personal communication from AUSA Spector to authors (Feb. 5, 2018). Connecticut’s Local Prevention Councils, for instance, were specifically formed to “increase public awareness of [alcohol, tobacco and other drug] prevention and stimulate the development and implementation of local prevention activities primarily focused on youth.”DMHAS Funded Local Prevention Councils/Coalitions, November30, 2017, available at <http://www.ct.gov/dmhas/cwp/view.asp?a=2912&q=335150> (last visited February 5, 2018).
