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Heroin overdose, drug deal cases go before Supreme Court

By Lawrence Hurley

WASHINGTON (Reuters) - The Supreme Court took on cases involving a heroin overdose and a drug deal gone wrong on Tuesday as the justices weighed what prosecutors needed to prove in order to convict defendants of certain federal offenses.

In both cases, the justices appeared unsure how to proceed as they considered the appeals of two criminal defendants, Marcus Burrage and Justus Rosemond.

Burrage was convicted in a federal court in Iowa of distributing heroin that led to the death of a drug user while Rosemond was convicted in a Utah federal court of aiding and abetting the use of a firearm during drug trafficking. Both convictions were upheld on appeal.

In each case, the defendants are appealing lengthy prison sentences. Burrage was sentenced to 20 years on the heroin death count, although he is serving it concurrently with his 20-year sentence for selling heroin. Rosemond's conviction on the firearms count led to a 10-year prison term on top of the four-year term he received for other offenses.

In Burrage's case, he argued that the government needed to show that the heroin that led to the death of Joshua Banka in Iowa in November 2009 was more than just one possible cause of death. At trial, experts said only that the heroin was a contributing factor to Banka's death as he had also ingested other drugs at the time of his death, Burrage's lawyers point out.

Several justices expressed concern about the latitude the government has in prosecuting cases under the law, which imposes a mandatory minimum 20-year sentence "if death or serious bodily injury" results from use of heroin sold by the defendant.

Justice Elena Kagan cited the expert testimony at trial, noting that there was no information on to what extent the heroin was a cause of death.

"They had no idea whether it contributed to the death," she said.

DRUG DEAL

In the second case, Rosemond was convicted of four offenses relating to a shooting that took place in Tooele, Utah, in August 2007 during an unsuccessful drug deal.

Rosemond's legal team says the government should have to show he took some action to encourage use of the firearm in order for him to be convicted of the aiding and abetting offense, one of four charges he faced. At trial, it was not clear whether it was Rosemond or his accomplice who was the shooter.

As in the Burrage case, some of the justices indicated sympathy for Rosemond's plight. Justice Ruth Bader Ginsburg said it seemed "a bit much" that Rosemond received a 10-year sentence merely for his involvement in an underlying crime that only merited a four-year sentence.

It is possible the court will send the case back to lower courts for further review due to concerns raised by some justices about the instructions that were given to the jury.

"I think there is a real problem with that," Justice Anthony Kennedy said.

Rulings are expected by the end of June.

The cases are Burrage v. United States, U.S. Supreme Court, No. 12-7515 and Rosemond v. United States, 12-895.

(Reporting by Lawrence Hurley; Editing by Howard Goller)

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