United States v. Piaquadio

UNITED STATES OF AMERICA v. DAVID PIAQUADIO, Defendant

CRIMINAL NO. 4:15-CR-249

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

July 25, 2019

(Chief Judge Conner)

MEMORANDUM

Defendant David Piaquadio ("Piaquadio") was charged by indictment with one count of conspiracy to distribute controlled substances in violation of 21 U.S.C. § 846 (Count One), and three counts of possession with intent to distribute and distribution of a controlled substance in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Counts Two through Four). The indictment charges that from January 2011 through April 28, 2015, Piaquadio knowingly and intentionally conspired to distribute Oxycodone tablets, Fentanyl patches, and heroin, and that serious bodily injury resulted from the use of those controlled substances. It further charges that Piaquadio possessed with intent to distribute, distributed, or attempted to distribute Oxycodone or Fentanyl on three occasions—October 1, 2014, November 26, 2014, and March 12, 2015—and that serious bodily injury resulted from use of the controlled substances distributed on March 12, 2015.

On July 1 and July 2, 2019, the court held a non-jury trial in the above-captioned matter. The following memorandum constitutes the court's findings of fact and conclusions of law pursuant to Federal Rule of Criminal Procedure 23(c). For the reasons set forth below, the court finds defendant David Piaquadio ("Piaquadio") guilty of Counts One through Four of the indictment.

I. Findings of Fact

The evidence adduced at trial falls into two categories: fact witness testimony and documentary evidence concerning the crimes alleged, and testimony from medical doctors on the issues of causation and serious bodily injury. The court's findings within each category of evidence follow.

A. Chronology of Events

Physicians at the Wellsboro Health Center prescribed Oxycodone tablets and Fentanyl patches to Piaquadio and his then-girlfriend Jane Flynn ("Flynn") for chronic pain management. To receive these prescriptions, Piaquadio signed a contract acknowledging the terms and conditions for use of controlled substances including, inter alia, that selling or distributing his prescription medications to others is prohibited.

On October 1, 2014, Piaquadio filled prescriptions for Oxycodone and Fentanyl at a pharmacy in Wellsboro, Pennsylvania. As Piaquadio left the pharmacy, a confidential informant¹ introduced undercover Pennsylvania State Trooper Ryan Stillman Kelley ("Trooper Kelley") to Piaquadio in the parking lot. Piaquadio, Trooper Kelley, and the confidential informant sat in Trooper Kelley's vehicle, where Piaquadio provided Trooper Kelley with two Fentanyl patches and ten Oxycodone pills in exchange for $290 in prerecorded currency.

Trooper Kelley and Piaquadio maintained contact through text messages and phone conversations. On November 26, 2014, Trooper Kelley arrived at Piaquadio's residence for a prearranged drug transaction. Flynn, John Proctor ("Proctor"), and Piaquadio's son, Garrett Piaquadio ("Garrett"), were present in the home. Trooper Kelley placed $250 in prerecorded currency on the kitchen counter to purchase a quantity of pills. Before Piaquadio produced any pills, Garrett asked Trooper Kelley to snort a pill from the kitchen counter to prove he was not law enforcement. Trooper Kelley refused, and Piaquadio and Garrett disagreed as to whether to continue with the planned transaction. Piaquadio and Garrett stepped into another room to discuss the matter and then returned to the kitchen, at which point Piaquadio began calculating how many Oxycodone pills Trooper Kelley could purchase for $250.² Garrett continued to express concern that Trooper Kelley may be affiliated with law enforcement, prompting Piaquadio to request that Trooper Kelley snort a pill. Trooper Kelley again refused and left the residence without purchasing narcotics from Piaquadio.

Piaquadio filled prescriptions for 150 Oxycodone tablets and 10 Fentanyl patches on the morning of March 12, 2015. That afternoon, Joshua Cory Moroschok ("Moroschok") arrived at Piaquadio's home and used a bag of heroin provided by Piaquadio. Moroschok then went to the grocery store and ran an errand forPiaquadio in exchange for three Oxycodone pills.³ When he returned with the groceries, Moroschok asked Piaquadio for a Fentanyl patch. Piaquadio agreed to provide a Fentanyl patch to Moroschok with the understanding that he would pay for it after receiving a paycheck the following day.⁴

Moroschok walked home that evening at approximately 7 p.m. with three Oxycodone pills and one Fentanyl patch. Around midnight, Moroschok used a portion of the Fentanyl patch to get high. We credit Moroschok's testimony that he cut the Fentanyl patch roughly into quarters, placed the quarter patch and some citrus acid on a spoon, and used heat to cook the narcotics out of the patch into the liquid. He used cotton and a syringe to draw up the liquid and inject it into his arm. Moroschok then lost consciousness.

Moroschok's mother, Earlene Margaret Shaw ("Shaw"), discovered her son shortly after midnight on March 13, 2015, slumped over on his bedroom floor, unconscious, and having difficulty breathing. Shaw observed a metal spoon on thefloor and a needle in her son's arm. When Shaw rolled Moroschok over to try to improve his breathing, the needle stayed in his arm. Shaw called 911 for a medical emergency, and Galeton Borough's chief of police, Christopher J. Brackman ("Chief Brackman"), responded to the scene. Upon entering the room, Chief Brackman administered a sternum rub which failed to elicit a verbal response from Moroschok. Chief Brackman noticed a spoon with a substance on it, a burning candle on a stand next to the television, and a needle stuck in the right arm sleeve of Moroschok's shirt.⁵ When the ambulance crew arrived, emergency medical technician Douglas Parsell ("Parsell") observed that Moroschok had a pulse, was breathing shallowly, and was unresponsive.

Moroschok was moved from the bedroom to the ambulance on a back board. In the ambulance, Parsell recorded Moroschok's blood oxygen saturation at 75% using pulse oximetry and described Moroschok's condition as "life threatening." Parsell gave Moroschok six liters of oxygen to increase the oxygen saturation in his blood, as well as a sternum rub which successfully restored Moroschok to a level of consciousness. Paramedic Donald James DuVall, Jr. ("DuVall"), boarded the ambulance on route to the hospital to provide advanced life support. DuVallrecorded Moroschok's blood saturation at 83% and noted that Moroschok's speech was slurred and that he was confused. Moroschok admitted to using Fentanyl, and DuVall administered one milligram of Naloxone to improve Moroschok's respiratory effort. The Naloxone caused Moroschok to vomit, improved his blood oxygen saturation to 97%, and further enhanced his level of consciousness.

Emergency medical physician Perry Doan, D.O. ("Dr. Doan"), treated Moroschok upon his arrival at the hospital. Moroschok presented with an oxygen saturation level of 98%. He disclosed to emergency room personnel that he used heroin and Fentanyl by needle in the last 24 hours. A preliminary urinalysis screen at the hospital revealed the suspected presence of opiates and cannabis in Moroschok's system. Laboratory testing later confirmed the presence of cannabinoid, morphine, Oxycodone, and Oxymorphone.⁶

Three Oxycodone tablets and a partial Fentanyl patch were found on Moroschok's person at the hospital and turned over to law enforcement. Chief Brackman submitted various items to a laboratory for testing, including the spoon from Moroschok's bedroom as well as the three tablets and the partial patch recovered from Moroschok at the hospital. The laboratory determined that the residue on the spoon and the patch tested positive for Fentanyl and the three tablets tested positive for Oxycodone.

Law enforcement arrested and interviewed Piaquadio on April 28, 2015. Piaquadio admitted that he and Flynn sold Oxycodone tablets and Fentanyl patches obtained by filling their respective prescriptions. During the last two years of the conspiracy alone, Piaquadio and Flynn received more than 8,000 Oxycodone tablets and 390 Fentanyl patches by filling prescriptions at area pharmacies. Piaquadio further admitted that he and Flynn sold between 100 to 120 Oxycodone tablets and one or two Fentanyl patches per month.

B. Medical Opinions

Defense expert Robert M. Julien, M.D., Ph.D. ("Dr. Julien"), issued a report analyzing the events of March 13, 2015. Dr. Julien concluded that Moroschok was not in danger of imminent death from a Fentanyl overdose. Dr. Julien supported his conclusion by noting that laboratory testing revealed the presence of morphine (from heroin) and Oxycodone in Moroschok's urine but not Fentanyl; Dr. Julien conceded, however, that this was because no Fentanyl testing was performed. Dr. Julien observed that overdose victims typically relapse into an unconscious state, or "renarcotize," after the first dose of Naloxone wears off. He opined that the fact that Moroschok did not renarcotize is consistent with a nonfatal dose. In his expert report, Dr. Julien explained that an intravenous dose of Fentanyl causes a peak respiratory depressant effect in the first 5 to 15 minutes after injection and noted that Moroschok was likely past the peak risk period for an overdose death by the time emergency responders arrived 20 minutes after Shaw called 911.

Dr. Doan offered a competing view of Moroschok's pre-hospital condition. Dr. Doan testified that an oxygen saturation level below 88% is cause for "markedconcern" because cell death will begin at declined oxygen levels. He also testified that a declined oxygen saturation level is typically indicative of an airway blockage or a disease or other substance depressing the central nervous system. And Dr. Doan explained that Naloxone reengages a patient's normal...