Death charges rare for Colorado’s skyrocketing fatal fentanyl overdoses
The Colorado Sun
DENVER (AP) — In a matter of seconds, a tiny blue pill disguised as a prescription painkiller can kill a person with a lethal dose of fentanyl, a drug so powerful that amounts as tiny as a few grains of salt are deadly. Parents of Colorado high school and college students who have died after taking the synthetic opioid call it murder.
But tracking the source of the pills could take months. And holding a drug dealer accountable for another person’s death could take even longer — if it happens at all — as law officers try to gather enough evidence to file charges, The Colorado Sun reports.
It’s far more complicated to prove than other homicide cases, Boulder County District Attorney Michael Dougherty said.
“We treat this as a priority because to the families that have lost someone, it is basically like a murder case,” Dougherty said. “It is the same exact impact as if their loved one had been murdered directly by another person. But it is a lot more complicated due to the way pills are distributed, particularly among young people in the community.”
In Boulder County, 14 people have died of fentanyl or a combination of drugs including fentanyl since February, as overdose deaths skyrocket across the state. Six other cases of suspected fentanyl poisoning are pending toxicology results in Boulder County. Statewide, 525 people have died from fentanyl poisoning in Colorado so far this year, surpassing all other drugs.
Even so, charges that account for those deaths are extremely rare.
The first federal conviction in the state’s history against a drug dealer for causing a man’s overdose death after selling fentanyl-laced pills occurred in 2019 and only one other similar case has followed. As for state-level cases, prosecutors battling counterfeit opioid pills across Colorado are watching a murder case scheduled for a pre-trial hearing next month in Arapahoe County. In that case, a 25-year-old man is accused of first-degree murder after allegedly giving fake oxycodone pills to a 16-year-old girl at a party in Aurora.
In Boulder County, the local drug task force is investigating four of the recent overdose deaths in hopes of filing criminal charges, possibly homicide. The task force partners with the county sheriff’s office along with police departments in Boulder, Erie and Lafayette.
The Sun spent more than $400 on multiple public records requests to the Boulder County Coroner’s Office in order to understand the scope of destruction caused in one Colorado county by the illicit pills, known as “xanny bars,” “mexis” and “blues.” The synthetic opioid is sold as little blue pills and bar-shaped white ones that look just like prescription drugs sold in a pharmacy.
“These drug dealers go to hubs — so Denver is a huge area. But that’s where they hub and then they farm out the stuff all over the place,” Cmdr. Nico Goldberger with the Boulder County Drug Task Force said. “We’re getting tens (of) thousands of these pills in that area, but they will make their way up to Boulder. Pick a city, it doesn’t matter — Silverthorne, Steamboat, it doesn’t matter — they are going to make it there. It just takes a little more time.”
Federal agents with the Drug Enforcement Administration field office in Denver will seize between 5,000 to 100,000 counterfeit fentanyl pills on any given week. “When you look at that number, it is perhaps not surprising, although incredibly distressing, that overdoses have skyrocketed here in Colorado and around the United States in connection to fentanyl,” the Boulder district attorney said.
The challenge, Dougherty said, is proving — beyond reasonable doubt — that the seller of the counterfeit pill knew, or should have known, that it was laced with fentanyl, and that the person who bought the pill was unaware.
Some dealers and users know that a drug is laced with fentanyl, which is used in hospitals for pain relief, and some drug users seek it out in search of a cheaper high. But often, people who die of fentanyl had no idea before they swallowed a counterfeit pill they believe is oxycodone, a painkiller, or Xanax, prescribed for anxiety. Two in five counterfeit pills, manufactured and transported from Mexico, have enough fentanyl to kill a person within seconds.
In order to file homicide charges, prosecutors must determine what the seller and buyer of the drugs knew before a person died from the drugs, “a feat that is harder than it may sound,” Dougherty said.
“We try to trace the pill upstream to try to figure out: At what point did the person handing the pill over know that they were giving a counterfeit pill and what information did they provide to the individual?”
Investigations become increasingly challenging when the counterfeit pills are traded among social circles and at parties, he said. “The pill that ultimately results in an overdose — who brought that pill and what do they know? And what did the person they got it from know? And tracing that back.”
Law officers look closely at phone and computer evidence while gathering evidence, he said. Parents of some of the young people who died of fentanyl poisoning in Boulder this year told The Colorado Sun that their children’s cell phones were taken by law officers in search of clues about how the counterfeit pills were purchased. At least two of them used the word “murder” in describing what happened to their high school and college students.
The district attorney’s office with the highest number of fentanyl deaths in the state — Denver County — has yet to charge manslaughter or murder in a fentanyl death.
“So far we have not found a case that I felt we could prove beyond a reasonable doubt,” said Thain Bell, chief deputy for the Denver District Attorney’s Office.
One barrier to proving homicide is that overdose victims often have more than one drug in their system, so the cause of death is not just fentanyl but fentanyl in combination with other drugs, Bell said. It’s also hard to prove that the “narcotics the drug dealer handed the victim are the same narcotics that the victim ingested and caused their death,” he said.
In the 18th Judicial District case involving a 16-year-old girl’s death, a grand jury returned a murder charge along with multiple other charges last year against Jorge Alexander Che-Quiab, who was living in the U.S. illegally and has been apprehended by immigration officials. Che-Quiab is accused of selling little blue pills that he called oxycodone to teenage girls at an apartment in August 2020. The pills were crushed into a blue powder and snorted, according to the indictment.
When the indictment was announced, former District Attorney George Brauchler called it a “warning to illegal drug users.”
“We have a juvenile victim who was given what she thought was ‘oxy,’ and she is dead from a fentanyl overdose,” he said. “The risk cannot be overstated, and it is death.”
In another Arapahoe County case, a jail inmate recently was charged with drug distribution and bringing contraband into the jail after handing a little blue pill to a cellmate who overdosed and died in June. Ernest Mares brought eight or nine pills into the jail by hiding them inside his shoe, according to court documents.
While homicide cases involving fentanyl are hard to come by, local district attorneys have had success winning convictions on drug distribution charges after fatal overdoses.
In Summit County, a 2015 fentanyl overdose resulted in convictions of two men — but not for homicide. Brandon Johnson, 26, was accused of selling fentanyl to a man who lost consciousness at his home in Blue River and later died. Johnson was sentenced to five years in prison in 2018 for drug distribution.
Prosecutors uncovered text messages between the victim and his roommate discussing how to buy the fentanyl patches from Johnson and how to turn the drug from its gel state to a form that could be smoked. The victim’s roommate, William Lancaster, was initially charged with manslaughter. But that charge was dropped and he was convicted of felony drug possession in 2017, receiving a two-year prison sentence.
Bruce Brown, who was district attorney for Summit County for eight years and prosecuted the case, said district attorneys most often go after drug possession and distribution charges after an overdose — not murder or manslaughter.
“Manslaughter could work,” said Brown, who held office from 2013 to 2020. “Murder is unlikely to work. Even if you can charge a second-degree murder for reckless behavior resulting in death, a jury hearing murder is going to feel that that’s an overcharged case.”
Still, criminal charges surrounding overdose deaths have come a long way. When Brown first took office, overdoses were handled similarly to suicides, he said. “The coroner took away the body, conducted their investigation and informed the family. Law enforcement was not involved.”
In recent years, as the number of overdoses surged during the opioid crisis, law enforcement officers learned to collect evidence at the scene of an overdose and take cell phones from the victim to trace the source of the drugs. And while victims’ families typically push for those prosecutions, some in the addiction community fear they will lead to fewer people calling for help when a friend has overdosed.
Brown, though, says prosecution is a “viable strategy” because offering drug treatment programs to drug dealers isn’t enough to “stem the tide of fatal overdoses.”
“People are dropping dead in their tracks after having ingested fentanyl,” he said. “You can’t prosecute your way out of a drug crisis, but it can be one of the tools you use in the bag. It’s one strategy that may save some lives.”
Jonathan Ellington, who died alone in his room in Carbondale, was the first victim of fentanyl overdose whose death was legally accounted for in federal court in Colorado. The conviction this year in Denver marked the first against a drug dealer for causing death.
An 11-day trial in April laid out how Bruce Holder of Grand Junction, along with his relatives, sold blue pills smuggled in from Mexico that looked like real oxycodone. Holder brought in “tens of thousands” of the pills, which were manufactured in Mexico from chemicals ordered from China.
Holder was convicted of distribution of fentanyl resulting in death, which carries a penalty of 20 years to life, and several other counts. He is awaiting sentencing. The charge is specific to federal court and is allowing federal prosecutors in Colorado to have more success than local district attorneys in convictions related to fatal overdoses.
In another recent case, Lewis Robertson pleaded guilty in federal court to distributing fentanyl pills resulting in the death of a victim identified in court records as B.B. in January 2019. He received a five-year sentence in September.
And in three additional federal cases, charges are pending against people accused of causing fatal overdoses by selling counterfeit pills containing lethal doses of fentanyl, said Matt Kirsch, acting U.S. attorney for the District of Colorado.
One of those cases is against Nathaniel Corser, a 21-year-old Colorado Springs man accused of selling fentanyl-laced pills that led to a fatal overdose. Corser is accused of possessing fentanyl and morphine with the intent to sell it near a school, based on an investigation by Colorado Springs police and the FBI.
To prove the “distribution resulting in death” charge, federal prosecutors must show that the fentanyl sold to the person was the sole cause of their death and that the dealer knew it was fentanyl, Kirsch said. “Despite the difficulties, it is a charge that we think we can prove in the cases that are pending,” he said. “Unfortunately, we’ve had more opportunities to bring that charge.”
The U.S. Attorney’s Office “recognized the potential power of this statute” several years ago and began providing training to local law enforcement agencies to help make cases, Kirsch said. “We’re starting to see some of the fruits of those efforts.”
“There are hundreds of people dying in Colorado as the result of fentanyl overdose. We need to hold responsible the people who are causing those deaths. We also need to raise public awareness about the dangers of fentanyl,” Kirsch said. “If someone is buying what looks like an oxy pill on the street, it probably has fentanyl in it.”