Memorandum and Order on Fatico Hearing — United States v. Jerrard Santiago (Document 78, filed June 18, 2024)

Summary

Memorandum and order on a Fatico hearing in the District of Connecticut case against Jerrard Santiago, who pleaded guilty to two counts of distributing controlled substances. The parties asked the Court to determine for sentencing purposes whether Santiago should be additionally responsible for a third drug transaction, the distribution of fentanyl to a victim who overdosed and died. The judge concludes by a preponderance of the evidence that on May 18, 2021, Santiago knowingly distributed cocaine laced with fentanyl to the victim, and that the fentanyl proximately caused the overdose and death. The order leaves it to the parties' sentencing memoranda to argue whether Santiago, as an experienced drug dealer, likely knew or should have known of the high probability that the cocaine contained fentanyl.

Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used

Cite this document

“Memorandum and Order on Fatico Hearing — United States v. Jerrard Santiago (Document 78, filed June 18, 2024).” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/court-filing-no-3-23-cr-00049-dkt-78-d-conn-7e2edda614/, SHA-256 001d339a3545903569b629e2922bd6cda38a52ff2bd64d51d7519e9244fd670f.

Full text

Case 3:23-cr-00049-JAM Document 78 Filed 06/18/24 Page 1 of 11

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

UNITED STATES OF AMERICA

v.
No. 3:23-cr-49 (JAM)
JERRARD SANTIAGO,
Defendant.

MEMORANDUM AND ORDER ON FATICO HEARING

Defendant Jerrard Santiago has pleaded guilty to two counts of distributing controlled

substances in violation of federal law. As part of Santiago’s plea agreement, the parties asked the

Court to hold a Fatico hearing to determine for sentencing purposes whether Santiago should be

additionally responsible for a third illegal drug transaction—the distribution of fentanyl to a

victim (“E.B.”) who overdosed and died.1

For the reasons discussed below, I conclude by a preponderance of the evidence that on

May 18, 2021, Santiago knowingly distributed cocaine to E.B. that was laced with fentanyl. I

further conclude that the fentanyl in this substance proximately caused E.B.’s overdose and

death.

FINDINGS OF FACT

In the early morning hours of May 18, 2021, E.B. was sitting at a gaming table at the

Mohegan Sun casino when he collapsed unconscious from his chair and fell to the floor.

Emergency medics were not able to revive him, and E.B. later died at a hospital. The parties

dispute whether Santiago distributed a controlled substance to E.B. that killed him.

1
See United States v. Fatico, 603 F.2d 1053, 1057 & n.9 (2d Cir. 1979); Doc. #55 at 4 (plea agreement) (“The
parties agree that the alleged conduct at issue in Count I of the Indictment will be addressed in a Fatico hearing after
the change of plea and prior to sentencing in this case. The Government reserves its right to argue and prove that the
defendant sold a mixture and substance containing a detectable amount of Fentanyl to an individual E.B. on or about
May 18, 2021, and to argue for an upward departure or variance for any consequences of that sale. The defense
reserves the right to contest whether the sale took place or that any consequences that flowed from that alleged sale
and to object to any departure or variance sought by the Government as a result.”).

1
Case 3:23-cr-00049-JAM Document 78 Filed 06/18/24 Page 2 of 11

The following recitation of facts is based on evidence presented over the course of three

days of hearings. The evidence included testimony from two of E.B.’s friends who were with

him at the casino (Jacob Kinnaman and Kyle Mitidieri), a Yale School of Medicine addiction

expert (Dr. Stephen Holt), a stranger whom E.B. met at the casino (Anthony Bardliving), and

two law enforcement agents (Special Agent Keith Warzecha of the DEA and Detective Cody

Floyd of the Mohegan Tribal Police Department). Much of the testimony concerned the casino’s

video footage of E.B. in the hours leading up to and including his collapse.

I make the following findings of fact on the basis of the evidence presented before me.

On the afternoon of May 17, 2021, E.B and his two friends—Jacob Kinnaman and Kyle

Mitidieri—drove from New York City to the Mohegan Sun casino where they had reserved a

room and planned to stay the night.2 They arrived at the casino around 4:00pm that day.3

The trio brought about half a gram of cocaine worth about $50 with them, as well as

marijuana and beer.4 E.B. smoked marijuana regularly (including in the car on the way to the

casino) and occasionally used cocaine.5 E.B. was not known to have previously used any heroin

or fentanyl.6

Upon arrival, the three friends took their bags to their hotel room, then brought food from

Chick-fil-A back to the room for dinner and drank some beer.7 Then E.B. went to the casino to

play poker, while his two friends stayed in the room.8

At around 9:00pm, E.B. returned to the room, and the trio drank more beers and used

2
Doc. #63 at 22, 26-27.
3
Id. at 27; Govt. Ex. #3A.
4
See Doc. #63 at 27, 29-30, 51; Doc. #71 at 9-13.
5
See Doc. #63 at 24-25, 27; Doc. #71 at 15.
6
See Doc. #63 at 25-26.
7
Id. at 27, 30. Kinnaman also testified that E.B. also brought some vodka and took some shots of vodka at some
point that evening. Id. at 51, 56.
8
See id. at 30-31.

2
Case 3:23-cr-00049-JAM Document 78 Filed 06/18/24 Page 3 of 11

some of their cocaine.9 The cocaine remained in the room.10

Kinnaman and Mitidieri each testified that this cocaine produced the feelings they

ordinarily associate with cocaine: they felt energized, awake, and happy.11 E.B. did not suggest

that he felt unwell after consuming the cocaine; nor did he appear to be unwell to either

Kinnaman or Mitidieri.12

Around 10:00pm, the trio headed down to the casino.13 They visited a bar where they

each took a shot.14 They then split up—E.B. went to play poker, while Mitidieri and Kinnaman

went to play blackjack and roulette.15

At around midnight, the three friends met up again at the poker room.16 E.B. looked well

and normal at that time.17 E.B. stayed in the poker room, while Kinnaman and Mitidieri went to

play blackjack.18

From 12:35am to 1:48am (now May 18, 2021), E.B. and Kinnaman exchanged a series of

text messages.19 Kinnaman inquired about E.B.’s status, and E.B. replied that he was about

“even” playing poker—that is, he had neither won nor lost money.20 Kinnaman texted that he

had finished gambling at 1:05am, and at 1:11am, E.B. replied “Room and coke” and “1:45.”21 At

9
Id. at 31, 60. According to Kinnaman, he and Mitidieri used more of the cocaine than E.B. Id. at 65.
10
Doc. #71 at 17.
11
See Doc. #63 at 31-32; Doc #71 at 28-29.
12
Doc. #63 at 32. It is not clear if the trio ultimately used all of the cocaine or if any remained at the end of the trip.
See, e.g., Doc. #71 at 20-21. Regardless, law enforcement never recovered any of this cocaine for testing. See Doc.
#63 at 46-47, 183. Santiago argues the unavailability of this cocaine suggests some nefarious intent on the part of
Kinnaman and Mitidieri. Doc. #75 at 6-8. I do not agree. The three friends brought a relatively small amount of
cocaine with them, which they used throughout the night—it is likely that either no cocaine or that only a tiny
amount remained.
13
Doc. #63 at 33.
14
Ibid.
15
Ibid.
16
Id. at 33-35.
17
Id. at 34; Doc. #71 at 30-31.
18
Doc. #63 at 35.
19
Id. at 36-43; Govt. Ex. #4.
20
Doc. #63 at 37; Govt. Ex. #4 at 1.
21
Doc. #63 at 37-39; Govt. Ex. #4 at 3-4.

3
Case 3:23-cr-00049-JAM Document 78 Filed 06/18/24 Page 4 of 11

1:14am, Kinnaman texted “Walk back I’ll see u on the way.”22 Thirteen minutes later, E.B.

texted “pls don’t do all” and “I’m on the come up,” which Kinnaman interpreted as a request not

to use all the remaining cocaine before E.B. got to the room.23 The two exchanged several more

texts coordinating their return to the hotel room. At 1:48am, E.B. texted “Save some for a real

one.”24 This was the last text message that E.B. sent to Kinnaman.25

Casino video footage shows that E.B. left the casino poker room at around 1:35am,

approximately the same time that he was communicating by text with Kinnaman.26 After he

walked out, he ran into a man identified as Anthony Bardliving.27 Bardliving and E.B. had met

earlier in the evening and had become friendly.28

The casino video footage shows E.B. and Bardliving walking away from the poker room

and towards the blackjack room.29 But as E.B. left the poker room with Bardliving, the video

footage shows that the defendant Jerrard Santiago was walking slightly behind them.30 E.B. and

Bardliving conversed for several minutes while walking. The footage shows that Santiago broke

into their conversation and began talking to E.B. and Bardliving—eventually, Bardliving walked

off at 1:38am, leaving E.B. and Santiago alone.31

At 1:39am, E.B. and Santiago walked into a men’s room together.32 There they remained

until they left the bathroom together nearly seven minutes later at approximately 1:46am.33 The

22
Doc. #63 at 40; Govt. Ex. #4 at 6.
23
Doc. #63 at 41; Govt. Ex. #4 at 7.
24
Doc. #63 at 42-43; Govt. Ex. #4 at 10.
25
Doc. #63 at 43.
26
Id. at 102; Govt. Ex. #3F.
27
Doc. #63 at 106-07.
28
Doc. #71 at 44-46; see also Doc. #63 at 178-80 (testimony about E.B. and Bardliving getting a drink together at
the Bow and Arrow bar at approximately 11:00pm).
29
Id. at 106-16; see also Govt. Ex. #3H-#3O.
30
Doc. #63 at 107-09, 128; see also Govt. Ex. #3H.
31
Doc. #63 at 112-13; Govt. Ex. #3L.
32
Doc. #63 at 116-17; Govt. Ex. #3O.
33
Doc. #63 at 117.

4
Case 3:23-cr-00049-JAM Document 78 Filed 06/18/24 Page 5 of 11

casino does not have video cameras in the men’s room that could disclose what E.B. and

Santiago did inside.34

After they left the bathroom together, the casino’s video footage shows E.B. and

Santiago circling the concourse for about five minutes before E.B. settled at a gaming table.35

E.B. sat down to play at approximately 1:51am, while Santiago stood nearby and behind him.36

E.B. continued to play for about ten minutes, frequently adjusting the mask over his

nose.37 This repeated manipulation of the mask was consistent with E.B.’s first feeling signs of

respiratory distress and his impending collapse.38

At some point during that interval, Santiago walked away from the table to talk on his

phone, and then to speak with a man later identified as Robert Boria (Santiago’s brother).39

Santiago appeared to show Boria an object from his pocket, but it is not clear what it was.40

Santiago then walked back over to E.B.’s table shortly afterward.41

At that point, E.B. appeared to be unfocused.42 A few seconds later, he put his head in his

arms.43 Then within seconds he collapsed out of his chair and fell unconscious to the floor.44 He

collapsed at 2:01am—approximately 15 minutes after he left the bathroom with Santiago.45

34
The video footage shows that a casino maintenance staff member named Candace Girard walked into the
bathroom at around 1:45am. Id. at 118. Detective Floyd subsequently interviewed Girard two months later, and she
signed a statement saying that she remembered Santiago and E.B. arguing about money. Id. at 118-23. Because the
government did not call Girard as a witness and because of my concern about Girard’s ability to remember the
particulars of what she heard in the bathroom when she was not interviewed until two months later, I decline to rely
on Girard’s statement as grounds for my decision in this case.
35
Id. at 126-28.
36
Id. at 128.
37
Id. at 129-30.
38
Doc. #64 at 22-23.
39
Doc. #63 at 130-31; Doc. #64 at 131.
40
Doc. #63 at 131-32; Doc. #64 at 131-32.
41
Doc. #63 at 132-33.
42
Doc. #64 at 23-34.
43
Id. at 24.
44
Doc. #63 at 133.
45
Id. at 117, 133.

5
Case 3:23-cr-00049-JAM Document 78 Filed 06/18/24 Page 6 of 11

The video footage shows that as E.B.’s head slumped just before his collapse, Santiago

reached out to tap him as if to rouse him.46 Then, as E.B. fell from his chair, Santiago grabbed at

him but then withdrew his hand and stood above him for approximately twenty seconds while

looking at E.B. on the floor before turning his head to look around and then wandering away

behind a bank of slot machines.47 Over the next several minutes multiple people gathered around

E.B.’s body on the floor in apparent concern.48 The video shows that Santiago re-appeared

several minutes later while E.B. was still lying on the floor and briefly spoke to a casino

employee before again walking away.49

Casino security personnel evidently conducted a review of video footage soon after

E.B.’s collapse, and an officer found Santiago in a different part of the casino at around

2:39am.50 Santiago told the officer he had met E.B. playing poker and that he did not know

E.B.’s name or anything else about him or his activities.51

E.B. was taken to the hospital unconscious, and he would not wake again.52 He passed

away in a hospital about ten days later.53

To help explain the cause of E.B.’s death, the government called as a witness Dr. Stephen

Holt, an addiction medicine specialist and general internist of the Yale School of Medicine and

Yale New Haven Hospital.54 Based primarily on his review of the video footage and medical

records, Dr. Holt provided highly persuasive expert testimony.

Dr. Holt testified about hospital test records reflecting several substances in E.B.’s

46
Govt. Ex. #3P (2:00:54).
47
Ibid. (2:01:00-2:01:51).
48
Ibid. (2:02:00-2:04:58).
49
Doc. #63 at 135-36; Govt. Ex. #3R (2:08:54-2:09:14).
50
Doc. #63 at 139-143.
51
Id. at 142-43.
52
Doc. #64 at 29-37.
53
Id. at 36.
54
Doc. #63 at 188-89.

6
Case 3:23-cr-00049-JAM Document 78 Filed 06/18/24 Page 7 of 11

system—including fentanyl, cocaine, marijuana, and alcohol.55 Dr. Holt was convinced that it

was fentanyl that was the most likely cause of E.B.’s death: “In light of the potency of fentanyl

relative to all other opioids, knowing that fentanyl was present in his urine and there’s no other

reason for it to be there, fentanyl is the most likely explanation for his overdose.”56

According to Dr. Holt, a fentanyl overdose would typically produce the type of response

that E.B. appears from the video footage to have experienced.57 Fentanyl is a type of synthetic

opioid that reduces the body’s drive to breathe, decreasing the flow of oxygen and leading to the

buildup of CO2.58 Eventually, it leads to collapse and brain damage.59 Persons like E.B. who do

not regularly use fentanyl or other opioids are especially susceptible to an overdose.60

Dr. Holt explained that a person suffering from a fentanyl overdose would be very likely

to become lethargic before lapsing into unconsciousness—which is clearly what happened to

E.B. as shown on the video footage.61 Moreover, E.B.’s body released a large quantity of CO2

when emergency responders placed a breathing mask on him, suggesting that toxic levels of CO2

had accumulated in his body and brain.62

Dr. Holt ruled out causes other than fentanyl. He noted that E.B.’s blood alcohol content

at the hospital was about 0.1.63 While 0.1 is enough to feel a “bit buzzed,” it is only slightly

above the legal limit for driving a car and is well below the threshold for falling unconscious.64

Dr. Holt similarly noted that cocaine would be unlikely to produce the slow lapse into

55
Doc. #64 at 12-16.
56
Id. at 12-13.
57
Id. at 25.
58
Doc. #63 at 194-200.
59
Id. at 198.
60
Id. at 203, 207.
61
Id. at 199; Doc. #64 at 22-25.
62
Id. at 32.
63
Id. at 15.
64
Id. at 16.

7
Case 3:23-cr-00049-JAM Document 78 Filed 06/18/24 Page 8 of 11

unconsciousness that E.B suffered.65 The typical danger from cocaine is a sudden cardiac issue,

and testing revealed no sign of heart problems in E.B.66 Nor were E.B.’s actions in the last

moments before his collapse consistent with experiencing a sudden heart attack.67

Dr. Holt was also asked about the role of marijuana. He could not “fathom how

marijuana [had] anything to do with [E.B.] losing consciousness.”68

Dr. Holt testified not only about the substances that were present in E.B.’s body but about

how the timing and sequence of events was most consistent with E.B. having snorted a substance

such as cocaine that contained fentanyl only a short time before his collapse. Cocaine was

commonly laced with fentanyl in May 2021.69 According to Dr. Holt, an overdose caused by

ingesting opioids through the nose would typically take about 5-15 minutes.70 E.B. collapsed

about 15 minutes after exiting the bathroom.71 “I think [E.B.] between 1:39 and 1:46 snorted …

some proportion of fentanyl … [a]nd within 10 minutes he started to get a little woozy,” then “by

15 minutes, 15 to 20 minutes after using, he overdosed, lost consciousness, and tragically passed

away.”72

To be sure, there was—as noted above—significant evidence of E.B.’s prior use of

marijuana, cocaine, and alcohol in the hours before his collapse.73 But Dr. Holt convincingly

explained why it was unlikely that E.B.’s earlier use of these substances was the cause of his

collapse and death. None of these substances would have caused the lethargy and respiratory

65
See, e.g., id. at 24-26.
66
Id. at 25, 38-39, 71.
67
Id. at 24-26.
68
Id. at 45.
69
Id. at 14, 39.
70
Id. at 21; see also Doc. #63 at 207 (“an opioid naïve person, 5 to 15 minutes would be when I’d expect them to
start having symptoms, and then maybe 15 to 20 minutes to have pe[a]k effect”).
71
Id. at 117, 133.
72
Doc. #64 at 41; see also id. at 62-63 (testimony that it was an opioid—most likely fentanyl—that caused the
overdose).
73
See, e.g., id. at 12-16, 49, 60.

8
Case 3:23-cr-00049-JAM Document 78 Filed 06/18/24 Page 9 of 11

shutdown that caused his collapse.74 And even if some of those substances were tainted with

fentanyl, Dr. Holt explained how the fentanyl reaction would not have been delayed until

2:01am, when E.B. collapsed.75 The video footage as well as the testimony from Kinnaman and

Mitidieri suggests that E.B. was previously alert and does not suggest that E.B. became lethargic

and impaired until just a few minutes before his collapse.76

In short, the evidence strongly shows that E.B.’s collapse was because he ingested a

substance containing fentanyl approximately 15 to 20 minutes before he collapsed. The

remaining question is whether the source of that fentanyl was Santiago.

I am convinced for a combination of reasons that the source was Santiago: that he gave

E.B. cocaine that was laced with fentanyl and that caused E.B.’s death. Although there is no

video of what transpired between E.B. and Santiago in the casino bathroom, the fact that they

went together to the bathroom and then left together seven minutes later strongly suggests that

they interacted with each other in the bathroom and that they chose a location they felt to be safe

from video surveillance.

As the text messages between E.B. and Kinnaman reflect, E.B. was anxious to use

cocaine when he interacted with Santiago. A later review of E.B.’s cellphone reflected that at

1:43am (while he was in the bathroom with Santiago) E.B. called Santiago’s telephone number

and saved the number as a contact in his phone under the nickname “Ice,” a street term for

cocaine, which is consistent with a drug-dealing relationship between them.77 For his part,

Santiago admitted that E.B. gave him poker chips in the bathroom; although he claimed that E.B.

“just wanted to give it to him,” the far more likely explanation is that this was an initial payment

74
Doc. #64 at 16, 25, 38-39, 45, 71.
75
Id. at 40.
76
See e.g., Doc. #63 at 33-34; Doc. #71 at 28-31.
77
Doc. #64 at 117-124; Govt. Ex. #16 at 7.

9
Case 3:23-cr-00049-JAM Document 78 Filed 06/18/24 Page 10 of 11

by E.B. for some quantity of cocaine.78

Other circumstantial evidence points in the same direction. In an unrelated drug sale

videotaped by law enforcement, Santiago told a confidential informant in February 2023 that he

occasionally visited the Mohegan Sun casino to sell cocaine.79 This suggests that a reason for

Santiago to be at the casino on May 18, 2021, was to sell cocaine.

I also credit the government’s argument about why Santiago remained in proximity to

E.B. after they left the bathroom. He wanted to stay close by in order to see if E.B. would want

more cocaine.

In addition, I note the callous nature of Santiago’s reaction to E.B.’s collapse. The fact

that Santiago was within arm’s reach of E.B. and saw him suddenly collapse but then did nothing

to try to help him as he lay there on the floor suggests that Santiago did not want his relationship

with E.B. to come to light. There is no other likely explanation as to why Santiago would have

failed to take any steps to help a stricken person whom he had just spent time with at the casino.

Santiago points the finger at Anthony Bardliving—another stranger with whom E.B.

became acquainted at the casino not long before his collapse. But the video footage does not

show a drug transaction between E.B. and Bardliving or—like E.B. and Santiago—that they

went together for an extended period to the bathroom or another area where they could not be

seen by a video camera.80 Moreover, Santiago called Bardliving as a witness, and nothing in his

testimony suggested that Bardliving gave any fentanyl or other drugs to E.B.81

78
Doc. #64 at 130; see also id. at 191-92, 195.
79
Id. at 143. Although Santiago has denied giving E.B. drugs that killed him, Santiago told DEA agents when later
interviewed that he was a prolific crack dealer for more than twenty years until he stopped dealing crack in 2016. Id.
at 127.
80
See, e.g., Doc. #63 at 159-63; Govt. Ex. #3H–#3J.
81
Santiago did not ask Bardliving if he had distributed any cocaine or fentanyl to E.B. Bardliving testified that he
brought marijuana with him to the casino but denied offering to share any with E.B. or Santiago. Doc. #71 at 49. He
testified that E.B. offered him some marijuana but that he declined because he had his own. Id. at 50.

10
Case 3:23-cr-00049-JAM Document 78 Filed 06/18/24 Page 11 of 11

I have considered Santiago’s additional arguments about conflicts in the testimony and

am not convinced that any such conflicts or inconsistencies are material or that they create doubt

about Santiago’s culpability. Nor am I persuaded by Santiago’s attack on the credibility of

Special Agent Keith Warzecha. The vast majority of evidence offered by Agent Warzecha was

independently corroborated, such as by means of video footage or electronic recordings, and any

doubts about Agent Warzecha’s credibility would not affect my ruling in this case.

Although I conclude that Santiago knowingly distributed cocaine that was laced with

fentanyl to E.B., there has been no argument or evidence that Santiago specifically knew that the

cocaine he gave to E.B. was laced with fentanyl, much less that he intended to harm or kill E.B.

Still, despite the lack of evidence showing such specific knowledge or intent, I leave it to the

parties to argue in their sentencing memoranda the extent to which Santiago as an experienced

drug dealer likely knew or should have known of the high probability that the cocaine he

distributed contained potentially lethal fentanyl.

CONCLUSION

I conclude by a preponderance of the evidence that on May 18, 2021, the defendant

Jerrard Santiago knowingly distributed cocaine that was laced with fentanyl to E.B. I further

conclude that the fentanyl in this substance proximately caused E.B.’s overdose and death.

It is so ordered.

Dated at New Haven this 18th day of June 2024.

/s/ Jeffrey Alker Meyer
Jeffrey Alker Meyer
United States District Judge

File and source

File: 78.pdf
Size: 125,783 bytes
SHA-256: 001d339a3545903569b629e2922bd6cda38a52ff2bd64d51d7519e9244fd670f
Our copy: 78.pdf
Original: No public link identified.