United States of America v. Kerry Bernard Morgan, Jr.

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 21-3688
___________________________
United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Kerry Bernard Morgan, Jr.
lllllllllllllllllllllDefendant - Appellant
___________________________
No. 21-3778
___________________________
United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Jarad Paul Postell
lllllllllllllllllllllDefendant - Appellant
____________
Appeals from United States District Court
for the Southern District of Iowa - Eastern
____________

-- 1 of 7 --

Submitted: September 23, 2022
Filed: December 1, 2022
[Unpublished]
____________
Before COLLOTON, WOLLMAN, and STRAS, Circuit Judges.
____________
PER CURIAM.
K.M. died of a drug overdose on September 11, 2019. Kerry Bernard Morgan,
Jr., and Jarad Paul Postell were found guilty of conspiracy to distribute fentanyl
resulting in K.M.’s death. In this consolidated appeal, they argue that the district
court1 erred in denying their motion for judgment of acquittal, claiming that the
government failed to prove that fentanyl caused K.M.’s death. We affirm.
Postell and Eric Stoltenberg met K.M. and her friend at a park near Davenport,
Iowa, on the evening of September 10, 2019. K.M. and her friend asked for a ride to
the drug rehabilitation facility from which they had recently been involuntarily
discharged. Postell allowed K.M. to drive his vehicle to the facility, which refused
to readmit K.M. but allowed her friend to return.
K.M., who had just met Postell and Stoltenberg, used methamphetamine with
them that night, following which, at K.M.’s request, Postell made arrangements to
purchase heroin. Amber Maxwell distributed to Postell 0.1 grams of a drug that she
had purchased from Morgan and that she believed to be heroin, which Postell then
gave to K.M. Later testing revealed that the drug was fentanyl.
1The Honorable John A. Jarvey, then Chief Judge, United States District Court
for the Southern District of Iowa, now retired.
-2-

-- 2 of 7 --

K.M. snorted a line of the drug sometime between 1:43 a.m. and 2:19 a.m. on
September 11, 2019. She said that it was strong, soon began nodding off, and
eventually became unconscious. With K.M. still in his vehicle, Postell drove to a
casino and then to a Wal-Mart. By the time they arrived at Wal-Mart (approximately
3:00 a.m.), K.M.’s condition had deteriorated to the point that she did not wake up
when Postell threw a cold drink on her.
Postell did not take K.M. to the hospital, but instead called Maxwell, who
asked Morgan for Narcan, a drug used to treat opioid overdoses. Postell, Maxwell,
and Morgan agreed to meet at a gas station. Surveillance video showed that Maxwell
arrived at 3:16 a.m. She brought a friend who knew how to administer Narcan.
Postell arrived with K.M. at 3:20 a.m. Maxwell approached the passenger’s side of
Postell’s vehicle and assessed K.M., who was not breathing and did not have a pulse.
K.M.’s complexion was white, her lips were blue, and she felt cold. Maxwell
believed that K.M. was already dead.
Morgan arrived with Narcan at 3:24 a.m. Maxwell’s friend administered the
Narcan, even though he, too, believed that K.M. was deceased. K.M. did not respond.
Postell brought K.M. to the hospital at 3:32 a.m., telling nurses that he did not
know who she was and did not know what drugs she had taken. Hospital staff
administered Narcan, along with other treatments, but K.M. remained nonresponsive
and was declared dead at 4:05 a.m. According to the toxicology report, K.M.’s
femoral blood contained 1,900 ng/ml of methamphetamine and 18 ng/ml of fentanyl.
A superseding indictment set forth the conspiracy charge against Morgan,
Postell, and Maxwell, alleging, among other things, that the conspiracy involved
fentanyl purported to be heroin in violation of 21 U.S.C. § 841(a)(1) and that death
and serious bodily injury resulted from the use of the fentanyl in violation of 21
U.S.C. § 841(b)(1)(C). Maxwell pleaded guilty. Morgan and Postell stipulated that
-3-

-- 3 of 7 --

they had participated in a conspiracy to distribute controlled substances and
proceeded to trial on the question whether the fentanyl they distributed caused K.M.’s
death.
Morgan and Postell moved for judgment of acquittal at the close of the
government’s evidence and again at the close of all evidence. The district court took
the motion under advisement. The jury found Morgan and Postell guilty, specifically
finding that the fentanyl they had distributed resulted in K.M.’s death. The district
court thereafter denied the motion and entered judgment.
We review de novo the denial of the motion for judgment of acquittal, viewing
the evidence in the light most favorable to the government and drawing all reasonable
inferences in favor of the verdict. United States v. Broeker, 27 F.4th 1331, 1335 (8th
Cir. 2022). Section 841(b)(1)(C) provides for enhanced penalties “if death or serious
bodily injury results from” the use of controlled substances distributed by a
defendant. The term “results from” requires “that the drug be either the ‘but-for’
cause or an ‘independently sufficient’ cause of the injury.” United States v. Cathey,
997 F.3d 827, 832 (8th Cir. 2021) (quoting Burrage v. United States, 571 U.S. 204,
218–19 (2014)).
We conclude that the evidence was sufficient to support a finding that fentanyl
caused K.M.’s death. Expert witnesses testified that fentanyl is a central nervous
system depressant that causes respiratory depression, low blood pressure, and low
heart rate. Respiratory depression can lead to irregular breathing, lack of oxygen,
increased carbon dioxide in the blood, and, eventually, loss of consciousness and
cardiopulmonary arrest. After consuming fentanyl, which is far more potent than
heroin, a user might nod off or seem lethargic and sleepy. Narcan is administered
after an opioid overdose because it reverses the effect of the drug.
-4-

-- 4 of 7 --

Witnesses testified that K.M. nodded off soon after she consumed the fentanyl
and that she thereafter became nonresponsive. Maxwell asked Morgan for Narcan
after learning about K.M.’s state “[b]ecause that’s what brings you back after a heroin
overdose.” The evidence indicates that everyone who encountered K.M. in those
early morning hours—all experienced drug users—believed that K.M. had overdosed
on heroin.
The autopsy report stated that K.M.’s cause of death was acute mixed-drug
intoxication, noting that fentanyl, acetyl fentanyl, methamphetamine, and
benzodiazepines were found in K.M.’s femoral blood. The report further stated that
pulmonary and cerebral edema were present, which forensic toxicologist Donna
Papsun identified as “classic signs at autopsy” of an opiate overdose. Papsun further
testified that the amount of fentanyl in K.M.’s system was substantial and could be
fatal, depending on factors like K.M.’s opioid tolerance.
The record does not set forth the extent of K.M.’s prior opioid use or tolerance,
but it establishes that she had recently spent two months in a drug rehabilitation
facility. The autopsy report noted that “[i]t is not unusual” for opiate users to lose
their tolerance “upon entering an abstinent environment, such as rehabilitation.”
Similarly, Maxwell testified that, in her experience, users build up a tolerance and
that “it’s very easy to overdose” when opioids are first used or “when you first got out
of prison or when you start using again after not using.” The friend who returned to
the facility the night of K.M.’s death testified that he knew K.M. to be a
methamphetamine user, not an opioid user. A fair inference from the evidence is that
K.M. had a low tolerance for opioids.
In support of their argument that the evidence was insufficient, Morgan and
Postell point out that the government did not present an expert witness to testify to
the cause of death. They cite evidence that postmortem redistribution might have
rendered inaccurate the fentanyl concentration in K.M.’s femoral blood, particularly
-5-

-- 5 of 7 --

because of the four-day lapse between K.M.’s death and the autopsy. They argue that
K.M. had a potentially fatal amount of methamphetamine in her system and that K.M.
may have sought out opioids to lessen her methamphetamine high. They also rely on
their expert’s opinion that K.M. died of a methamphetamine overdose, which was
based on the facts that K.M.’s pupils were dilated and that she did not react to
Narcan.
Against this evidence, the jury considered the substantial evidence that fentanyl
caused K.M.’s death, including that K.M. did not exhibit the symptoms of a
methamphetamine overdose, that she instead exhibited the symptoms of a fentanyl
overdose, that she lost consciousness shortly after taking the fentanyl, that her pupils
may have been dilated because her brain had been deprived of oxygen for a period of
time, that she did not react to the Narcan because she was already deceased when it
was administered, and that—even accounting for postmortem redistribution—the
concentration of fentanyl in her system could be deadly, particularly if she had a low
tolerance for opioids. See United States v. Parker, 993 F.3d 595, 606 (8th Cir. 2021)
(“Although the medical examiner testified that E.M.’s cause of death was a mixed
toxicity involving cocaine, ethanol, and heroin, there was sufficient evidence for the
jury to conclude that the heroin Parker gave E.M. was an independently sufficient
cause of her death because she immediately lost consciousness after taking it, still had
6-MAM in her blood, and heroin was present at a fatal level.” (footnote omitted)).
The evidence presented at trial merely “created a factual issue for the jury to resolve
rather than an absolute legal bar to conviction.” United States v. Seals, 915 F.3d
1203, 1206 (8th Cir. 2019); see id. (“Although the evidence must be consistent with
guilt, it need not be inconsistent with every other reasonable hypothesis.” (alteration
omitted) (quoting Klein v. United States, 728 F.2d 1074, 1075 (8th Cir. 1984) (per
curiam)).
-6-

-- 6 of 7 --

We conclude that a jury could find beyond a reasonable doubt that fentanyl was
the but-for cause or an independently sufficient cause of K.M.’s death. The judgment
is affirmed.
______________________________
-7-

-- 7 of 7 --