Iowa Internet Pharmacy Prosecutor Moves Closer To Top Job

Assistant United States Attorney Stephanie Rose has been formally nominated to be the United States Attorney for the Northern District of Iowa.  She was the lead prosecutor in the Buymeds and Medical Web Services cases.  The Des Moines Register has an article about the nomination.

If confirmed, the 36-year-old [Rose] would become the first woman to serve as the top U.S. attorney for Iowa’s northern district.

Among her largest cases was a record-breaking Internet pharmacy bust that led to the seizure of more than $7 million and shutdown of two Web-based suppliers. [Outgoing United States Attorney Matt] Dummermuth, who announced the operation in 2009, said the prosecution led to the most Internet pharmacy convictions ever in the United States.

Something to think about:

Federation of Associations of Regulatory Boards Conference

I’ll be speaking at the annual FARB conference in Chicago next Friday.  The subject is regulating and investigating internet pharmacies.

After the conference, I’ll put up some of the material here.

I’m Back

I’m back from a distribution-of-misbranded-drugs jury trial — disappointed, but back.  Statistics vary but people estimate that the government wins anything from three-quarters to nine-tenths of criminal trials.  Sorry to say, we ended up in the (overwhelming) majority this time.  Still doesn’t feel very good.

I won’t talk more about the case because it’s still pending.  All I’ll say is that I admire my client’s fortitude and am reminded of the words of Teddy Roosevelt:

“It is not the critic who counts: not the man who points out how the strong man stumbles or where the doer of deeds could have done better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood, who strives valiantly, who errs and comes up short again and again, because there is no effort without error or shortcoming, but who knows the great enthusiasms, the great devotions, who spends himself for a worthy cause; who, at the best, knows, in the end, the triumph of high achievement, and who, at the worst, if he fails, at least he fails while daring greatly, so that his place shall never be with those cold and timid souls who knew neither victory nor defeat.”

“Citizenship in a Republic,” Speech at the Sorbonne, Paris, April 23, 1910

Sometimes you have to fight the fight.  It’s the nature of the business we’re in.

In Trial

Back later.

Good Write-Up Of U.S. v. Hernandez

The Broward/Palm Beach New Times has a thorough write-up of the U.S. v. Hernandez case.

Between February and April, a rather remarkable legal drama unfolded in U.S. District Court Judge William J. Zloch’s courtroom in downtown Fort Lauderdale. Federal prosecutors had spent two years building their argument against doctors, pharmacists, and businessmen who were operating an internet pharmacy network. But midway through the trial, their efforts unraveled in spectacular fashion. The case – titled United States of America vs. Frank Hernandez et al. – featured misconduct by the prosecution, misconduct by the jury, two mistrials, and a judge refusing to sentence two men who’d pleaded guilty. In the end, the U.S. Attorney’s Office was forced to turn tail and release defendants they once labeled as peddling pharmaceuticals illegally.

The full article is here.

Jive Networks Trial – A tale of two cities

A report from the East Volusia News about some testimony.

Jurors in the federal Internet pharmacy trial of a former Daytona Beach man heard a recording in court Monday of a woman ordering more of the diet pills she’d previously bought online.

Mary Krieff of Tampa testified she was the caller who ordered 90 Adapex pills from Jive Network, a now-defunct business on Fentress Boulevard in Daytona Beach. Prosecutors say the business netted more than $77 million selling diet, sleeping and other pills without valid prescriptions through Web sites.

“Someone told me it would help me stay awake,” Krieff, 50, testified of her two purchases, one for $229, in June 2004.

Like other people who bought drugs from the company run by Jude LaCour, 36, Krieff testified she never saw a doctor for a prescription. She said she bought the pills for energy.

The frightening part of the story:

More Insight Into U.S. v. Hernandez – Insight from Juror No. 1

I recently spoke with a juror from the Hernandez case.  Obviously, we lawyers can chatter all we want; in the end of the day, it’s the juror who decides what happened.  This juror has some interesting answers to some questions I put to him.  (And while he’d rather remain anonymous on the blog, I confirmed his identity with defense counsel.)

1) In your view, what was single most helpful piece of evidence for the prosecution?

In my view the single most helpful piece of evidence for the prosecution was that it was very easy for a patient to change the information on the online questionnaire. I believe there should have been stronger filters to prevent this.

2) What was the single most helpful piece of evidence for the defense?

The single most helpful piece of evidence for the defense was that there was no law requiring a face-to-face physical exam.

Follow Up on U.S. v. Hernandez – Part II

More from Mark Hardiman:

What was the most important evidentiary ruling during the trial?

I think the most important evidentiary ruling for the defense was probably that Judge Zloch correctly excluded portions of the 2001 DEA policy published in the Federal Register which stated that a valid prescription could not be based solely on a physician’s review of a medical questionnaire over the Internet.  The court correctly kept these statements out because this policy was not a statute or regulation, DEA is not authorized to promulgate standards of medical practice, and it was for the jury to decide whether such a prescribing practice was within the usual course of professional practice and without a legitimate medical purpose.  This was a critical ruling because we were very concerned that the jury would treat these DEA opinions as having some type of legal force and effect regardless of what we argued.

Final Rule Implementing Ryan Haight Act

Here’s a link:

http://www.pharmacy.ca.gov/forms/ryan_haight_74fr15596.pdf

I haven’t read them yet.

And thanks to Stacy Neroni and Mark Hardiman for the tip.

From Mark:

HOOPER, LUNDY & BOOKMAN, INC.
HEALTH CARE LAWYERS
1875 CENTURY PARK EAST, SUITE 1600
LOS ANGELES, CALIFORNIA 90067-2517
TELEPHONE (310) 551-8111
FOR IMMEDIATE RELEASE

Google Mistrial Ends in Dismissal of Federal Drug Dealing Charges
Against 14 Defendants In Major Internet Pharmacy Case

FORT LAUDERDALE, FL – April 6, 2009 – In yet another twist to a major federal drug dealing case brought in the Southern District of Florida against 14 physicians, pharmacists, pharmacies, Internet companies, and business owners involved in the prescribing and dispensing of controlled appetite suppressants over the Internet between 2002 and 2004 based solely on a patient medical questionnaire, the law firm of Hooper, Lundy & Bookman, Inc., announced today that United States District Judge William Zloch had granted the government’s motion to dismiss all criminal charges against Hannibal Edwards, M.D., a physician from Apple Valley, California, Lawrence Pinkoff, an Internet marketer from West Palm Beach, Florida, Serge Francois, a pharmacist from Plantation, Florida and his pharmacy, Concept RX, Inc., and Frank Hernandez, a pharmacy owner from Davie, Florida, and his pharmacy, Lifeline Pharmacy, Inc., after the first seven-week trial against them ended in a mistrial on March 10, 2009 when eight jurors admitted conducting improper investigation about the case on the Internet, including on Google.