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ARGUED SEPTEMBER 17, 2009

Before ROVNER, SYKES, and TINDER, Circuit Judges.

The afternoon before Thanksgiving, 2005, Jennifer Curry’s mother found her nineteen-year-old daughter dead on a sofa at the home of Curry’s father. At the scene, investigators found, among other things, a chewed 100 microgram Duragesic patch. Duragesic is a brand name for a fentanyl skin patch, a powerful opioid that is delivered across the skin in small steady doses over the course of several days. It is not meant to be ingested orally nor injected under the skin, but sometimes is by those who are abusing the drug. Of course, fentanyl is available only by prescription and, not surprisingly, Jennifer Curry did not have one. Her friend, Jennifer Krieger, however, had such a prescription and despite her pain from severe spinal cord and disk problems, she began selling the patches to others for $50 apiece or, as happened here, giving them to her friends. On November 22, 2005, Krieger filled her prescription for the patches and later that afternoon gave one to Curry. The two women then proceeded, with some other friends, to several bars. Krieger left Curry at around midnight and another witness saw Curry leave a bar with two men in the early hours of November 23. Curry arrived at her father’s home at approximately two o’clock in the morning. Her mother found her unresponsive at approximately four o’clock the next afternoon and began performing CPR. When the paramedics arrived, they determined that Curry had been dead for some time. At the scene, the investigators found a hypodermic needle, a small pipe with burnt residue on it, and two red capsules that were not taken into evidence and tested. A medical examiner found traces of many drugs in Curry’s system, including cocaine, benzodiazepines, cannabinoids, and Oxycodone, but concluded that Curry died from fentanyl toxicity.

 
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