NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 20-2841
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UNITED STATES OF AMERICA
v.
DAVID PIAQUADIO,
Appellant
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On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Criminal No. 4-15-cr-00249-001)
District Judge: Honorable Christopher C. Conner
Submitted Under Third Circuit L.A.R. 34.1(a)
April 29, 2021
BEFORE: PHIPPS, NYGAARD, and ROTH, Circuit Judges
(Filed: July 14, 2021)
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OPINION *
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NYGAARD, Circuit Judge.
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Following a non-jury trial, the District Court convicted David Piaquadio on four
counts of drug-related offenses. 1 He challenges the District Court’s conclusion in Counts
One and Four that the Fentanyl he distributed caused serious bodily injury, making him
liable under the enhanced penalty provision of 21 U.S.C.A. § 841(b)(1)(C). He asserts
there is no evidence of but-for causation. See United States v. Gonzalez, 905 F.3d 165,
189 (3d Cir. 2018). He adds that the victim did not suffer serious bodily injury because
there is no evidence that the victim was ever at “substantial risk” of dying. 21 U.S.C.A. §
802(25)(A). We will affirm the judgment of conviction and sentence.
Our plenary review on the sufficiency of the evidence is ‘“highly deferential,”’
focusing on the question of ‘“whether there is substantial evidence that, when viewed in
the light most favorable to the government, would allow a rational trier of fact to
convict.’” United States v. Bornman, 559 F.3d 150, 152 (3d Cir. 2009), as amended
(Apr. 24, 2009), as amended (May 5, 2009) (quoting United States v. Helbling, 209 F.3d
226, 238 (3d Cir. 2000)). We review findings of “historical or narrative events” in non-
jury criminal cases for clear error. United States v. Delerme, 457 F.2d 156, 160 (3d Cir.
1
Piaquadio challenges his conviction on Count One (conspiracy to distribute and possess
with intent to distribute a controlled substance in violation of 21 U.S.C.A. § 846) and
Count Four (serious bodily injury resulting from use of controlled substances that
Appellant distributed and possessed with intent to distribute in violation of 21 U.S.C.A. §
841(a)). Both counts require a mandatory minimum prison sentence of twenty years. See
21 U.S.C.A. § 841(b)(1)(C). The District Court sentenced Piaquadio to 20 years
imprisonment on each of the four counts, served concurrently. It also imposed a
supervised release term of three years on each count to be served concurrently and special
assessments totaling $400.
2
1972). “We do not weigh evidence or determine the credibility of witnesses.” United
States v. Gambone, 314 F.3d 163, 170 (3d Cir. 2003).
Joshua Moroschok went to Piaquadio’s house on March 12, 2015. He used a bag
of heroin while there and agreed to run some errands for Piaquadio in exchange for three
oxycodone pills. The District Court credited Moroschok’s testimony that, after he
returned, he asked Piaquadio for a Fentanyl patch and agreed to pay for it the next day.
He went home after Piaquadio supplied him with the Fentanyl. The District Court also
credited Moroschok’s testimony that he placed one-quarter of the Fentanyl patch on a
spoon, added citric acid, extracted the opiate by heating it over a flame, and injected it
into his arm with a syringe. He remembered nothing else until he was in the ambulance.
But testimony from others described what happened next.
Moroschok lived with his mother. She testified that, shortly after midnight,
Moroschok’s dog alerted her to a problem. She found her son on the floor of his room
unconscious with a syringe stuck in his arm and a spoon nearby on the floor. He
struggled to breathe. She called 911. The first to arrive on the scene was Chief of Police
Christopher Brackman. He observed that Moroschok was unconscious on the floor with
shallow breathing. He administered a sternum rub but Moroschok’s condition did not
change. Brackman testified that he saw a needle stuck in Moroschok’s shirt sleeve, a
burning candle nearby, and a spoon with some substance on it—identified by a laboratory
as Fentanyl. Later he searched the room and found an item he associated with heroin use.
An Emergency Medical Technician, Douglas Parsell, arrived next. He observed
Moroschok’s shallow breathing and recorded his oxygen saturation as 75 percent. He
3
assessed Moroschok’s low oxygen saturation as life-threatening and gave him six liters of
oxygen in the ambulance. Parsell administered a sternum rub and got a response from
Moroschok, who—at some point after that—told him that he had taken Fentanyl.
Donald DuVall, a paramedic, joined the ambulance en route to the hospital.
DuVall observed that Moroschok’s pupils were constricted, his speech was slurred, and
his breathing was shallow, with an oxygen saturation of 83 percent. DuVall assessed that
it was appropriate to administer intravenously one milligram of naloxone, a drug used to
reverse the effects of an opiate overdose, to improve his breathing. Moroschok vomited
and he became more alert. His oxygen saturation rose to 97 percent. Moroschok told
DuVall he heated a patch of Fentanyl and injected it.
Perry Doan, D.O., who is board-certified in emergency medicine, treated
Moroschok at the emergency room. He noted that his oxygen saturation was at 98
percent when he arrived. Dr. Doan testified that Moroschok told him he had heated a
Fentanyl patch mixed with Mountain Dew and injected it. Moroschok also told him that
he had used heroin and oxycodone. The hospital record showed that a portion of a patch
(later identified by a laboratory as containing Fentanyl) and three pills (identified by a
laboratory as oxycodone) were found on Moroschok during the examination. When
asked, Moroschok affirmed that the pills were his. The hospital discharged Piaquadio
about nine hours later.
Robert Julien, M.D., Ph.D., a specialist in anesthesiology and pharmacology was
called by Piaquadio to testify. He reviewed the record and opined that Moroschok’s
condition on that evening was not life-threatening. He acknowledged that an oxygen
4
saturation level of 75 percent could pose a mortal threat but stated that it is not
necessarily so. Pointing to his improvement with just oxygen Dr. Julien posited that
Moroschok could have recovered on his own. And he noted the lack of laboratory results
showing Fentanyl use. But on cross-examination Julien acknowledged that injecting the
amount of Fentanyl contained in one-quarter of a patch has a high risk of being fatal. He
also stated that the mother’s initial call to 911 and the medical treatment Moroschok
received after that were appropriate to the condition that he presented.
Dr. Doan observed that Moroschok’s condition before arriving at the hospital—his
shallow breathing and oxygen saturation of 75 percent—pointed to a strong risk of
hypoperfusion. This is a condition in which the body’s cells are not receiving sufficient
oxygen. Doan testified that, without intervention, a person in this condition has a
substantial risk of brain damage and death. He stated that Moroschok’s shallow breath
was consistent with how opioids affect the central nervous system; they suppress
respiratory drive. He also noted that the treatment with naloxone worked.
Dr. Doan referenced the blood test and urinalyses that revealed marijuana and high
levels of oxycodone and heroin. He also acknowledged that the hospital’s urinalysis did
not and cannot detect Fentanyl, and he explained that this opioid is typically not screened
in tests that the emergency room physicians order from outside labs. But relying on
Moroschok’s reporting to him of Fentanyl use Doan testified that any dose of Fentanyl
above 100 micrograms could pose a particularly grave threat compared to oxycodone or
heroin since it is between 100 to 400 times more potent than either. Aware that a
Fentanyl patch contains 7,200 micrograms, he opined that if Moroschok was injecting the
5
Fentanyl he extracted from even a small portion of the patch, this was a grave threat to
his life. The record led Doan to conclude that Moroschok was at substantial risk of death
before receiving treatment on that night.
After weighing the evidence, the District Court noted that physical evidence and
testimony from multiple eyewitnesses on Moroschok’s condition that night are consistent
with Dr. Doan’s opinion. It found Doan’s opinion persuasive “that Moroschok was in
grave danger of sustaining a mortal injury.” United States v. Piaquadio, No. 4:15-CR-
249, 2019 WL 3337063, at *4 (M.D. Pa. July 25, 2019). The District Court also found
that his use of Fentanyl caused this grave danger and it ruled that this was a serious
bodily injury under Section 841(b)(1)(C). See United States v. Lewis, 895 F.3d 1004,
1010 (8th Cir. 2018) (overdose posing significant risk of death was serious bodily injury).
Piaquadio contends the District Court made erroneous factual findings. He makes
much of the difference in testimony between Moroschok and his mother about when he
arrived home. Moroschok estimated the time was 7 PM. His mother could not give a
specific time but recalled him getting in when they were going to bed. He says this
weakens the reliability of Moroschok’s account of his activity that night. Piaquadio next
notes the mother said the syringe was in her son’s arm, but Brackman said it was stuck in
his shirt sleeve. Also, this syringe was never tested. Piaquadio questions whether any
evidence shows that Moroschok injected Fentanyl that night. He adds that experts did
not establish Fentanyl as the but-for cause of Moroschok’s condition. Dr. Doan knew
about the high levels of heroin and oxycodone, and Piaquadio highlights that he
concluded only generally that an opioid overdose caused Moroschok’s physical distress.
6
He says this—combined with Moroschok’s heroin use that day, the lab results, and
heroin-related items found in his room—create reasonable doubt that Fentanyl was the
actual cause of harm here. Next, he points to Moroschok’s quick recovery and his
relatively short stay in the emergency room as evidence that he was not at substantial risk
of death. Alternatively, to distance himself from any harm, Piaquadio highlights that
Moroschok got the Fentanyl by heating the patch with a solvent. He says this is the but-
for cause. All of this shows, he argues, that there is insufficient evidence for any rational
trier of fact to conclude beyond reasonable doubt that he is liable under Section
841(b)(1)(C).
But the District Court credited Moroschok’s statement that he had extracted
Fentanyl from about one-quarter of a Fentanyl patch and injected it before losing
consciousness. Dr. Doan indicated that Fentanyl is 100 to 400 times more potent than
either heroin or oxycodone. And referring to Moroschok’s statement, he testified that
just injecting Fentanyl from even a small part of that patch would have placed Moroschok
in grave danger.
Substantial evidence supports the District Court’s findings that Moroschok
injected Fentanyl from a patch that Piaquadio distributed to him, resulting in a medical
emergency that posed a substantial risk of death. So, sufficient evidence exists here for a
rational trier of fact to conclude beyond a reasonable doubt that Piaquadio’s distribution
of a Fentanyl patch to Moroschok was the actual cause of serious bodily injury. The
District Court did not err by ruling that Piaquadio is guilty under the enhanced penalty
provision of Section 841(b)(1)(C).
7
For all of these reasons, we will affirm the judgment of conviction and sentence.
8
United States v. David Piaquadio
Combined Opinion