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:

The Northern District of Iowa is hardly a hotbed of internet pharmacies or their patients.  Indeed, the Buymeds and Medical Web Services cases alleged that the operations touched the district but did not allege they were centered there.  If so, should we be concerned that the decision whether to prosecute a national issue depends on the individual proclivities of a local U.S. Attorneys Office?  While it’s true that offices have prosecutorial discretion, shouldn’t that discretion be exercised in a consistent way across the country?  And if a rather small, and frankly out-of-the-way district is in the lead on the issue, what does that say about how that discretion is being used?

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’ve been “away” for quite some time.  I have to say that the disappointing result in trial late last spring hurt much more than one might expect.  (It was a case against a doctor accused of violating the unapproved/misbranded drug laws, the same ones used in internet pharmacy cases.)  A friend of mine who is a former Federal Public Defender says that it’s a good sign when a lawyer really “feels” a loss because it shows dedication and care.  My friend may be right but that doesn’t make it feel any better.

What does make things feel better is a good result: My client was sentenced on Monday in front of a Judge who is anything but a pushover.  The sentencing was very hard-fought and the final positions were: 1) The Government was seeking 97 months of custody, 2) the (neutral) Probation Office was seeking 97 months of custody, and 3) the defense was asking for probation.

After a long, emotional hearing, the Judge sentenced my client to 60 months OF PROBATION.  That’s right, no jail time.  When all is said and done, we’re in a better position than was ever offered to us before trial and I can only conclude that the Judge heard the evidence at trial and sentencing and determined that although my client was convicted, he was far from the “evil monster” some had called him.

Here’s an article from the local press (Daily Bulletin) on the sentencing:

During the sentencing, the courtroom was filled with patients, family members, friends and employees who came to express their support or disapproval of the doctor. Even more people spilled out into the hallway, hoping to get a seat in the crowded room.

For hours, [Judge] Phillips listened as lawyers debated and patients testified.

. . . .

After the sentencing, a few people in the courtroom clapped. [The defendant] hugged his attorneys. “Everybody’s very relieved,” attorney Benjamin Gluck said about the [defendant's] family. “The task now is to move forward from this.”

So now I’m officially back.  But I think there’ll be some changes to the blog, which I’ll detail in later posts.

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.

Back later.

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.

Some more thoughts from Juror No. 1 in U.S. v. Hernandez:

Were you glad they dropped the case?

I was extremely happy the case was dismissed.  I was surprised that the charges against Emmanuel Antonio, E.V.A. Global, Inc., Theophilos Antoniou, and Tropic Spiral Systems, Inc. were dropped.  Especially because they pled guilty.

Do you think the government ought to pay the defendants’ legal fees?

I’m not sure.  It depends and what is customary in a situation like this one.  I would also need more details as to why the prosecution moved to dismiss the case.

Did the case change your view of the justice system?

Not really.  I had a healthy distrust of the government before the trial.  What I mean by that is I wasn’t going to sit in the jury box and just accept what the attorneys said as the truth.  I needed to see evidence to support their statements.

Do you think the system worked?

Yes, because the jurors were leaning 10 – 2 for acquittal.

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:

LaCour has suggested in court filings that he was relying on the advice of attorneys while he was operating the business. But he has not been allowed to make that argument in court.

Prosecutor Gable asked the court to exclude any such claims that LaCour didn’t know the Internet sales were illegal, citing federal law that he is not entitled to present that he wrongly thought what he was doing was legal.

It’s scary that the Controlled Substances Act is interpreted so differently in Orlando from the way it was interpreted in Fort Lauderdale in the Hernandez trial.  In Hernandez, the court held that good faith was certainly relevant to the issue of whether there was a legitimate medical purpose.

Continuing the conversation with Mark Hardiman:

Were there any rulings about the applicable law that made a difference?

Absolutely. Most critically, with respect to the jury instructions. In order to convict a practitioner of drug dealing, Judge Zloch instructed the jury that the government had to prove that the practitioner acted other than in good faith, outside the usual course of professional practice in the United States, and without a legitimate medical purpose. The court also instructed the jury that while ignorance of the law was no excuse, it could be considered by the jury as a factor in determining whether a defendant was acting in good faith, including with respect to his honest belief that his conduct was legal.

As a result, unlike the instructions given in many published Internet prescribing cases, our jury instructions made it very clear that practitioners could not be convicted of drug dealing simply because they may have violated professional standards of practice, committed malpractice, or acted negligently.

In addition, Judge Zloch correctly ruled that a physician’s prescribing of federal controlled substances was to be evaluated by the jury based on a national standard of practice and required the parties to stipulate to Internet prescribing standards in all 50 states, rather than permitting a legal expert [e.g. me] to testify about them. This was important because the government argued that the only relevant standards were those of the states in which the prescribing physicians and dispensing pharmacists were licensed and these standards were predictably unfavorable.

Using the stipulation, we were able to convincingly argue to the jury that, between 2002 and 2004, defendants were acting in good faith because the standard of practice regarding Internet prescribing was recent, developing, and not uniform, and the government’s central theory that Internet prescribing based solely on a patient questionnaire was always medically improper was clearly wrong because at least one state, Utah, permitted an Internet pharmacy to legally fill such prescriptions for certain lifestyle drugs.

Note: Originally, I was supposed to testify as an expert but Mark did such a good job he was able to replace me with a written stipulation.  (With friends like these . . . .)  I’d completely agree that this legal issue was the key to the outcome in this case.  The cases where the defendants lost were quite different on this point.

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.

3) I understand that you leaned towards acquittal.  What do you think was the key difference of opinion between the jurors who leaned toward acquittal and those who leaned toward conviction?

I know that one of the jurors that leaned toward conviction because he didn’t believe the prescription was issued for a legitimate medical reason. I know this because I discussed the issue with him. I pointed out to him that on the medical questionnaire that the reason for the medication was for weight loss. He argued that it was not a legitimate medical reason because a DEA investigator filled out the questionnaire.

4) Even if you leaned toward acquittal, do you still think the defendants did something wrong?  If yes, was the reason you leaned toward acquittal because the proof wasn’t strong enough (i.e., reasonable doubt) or because the law didn’t fit or both?

Not only did I lean for acquittal but also my verdict was not guilty for all defendants on all charges. Under the laws at the time they didn’t do anything wrong. For me personally I get a very uneasy feeling about online pharmacies. I wouldn’t buy prescription drugs from online pharmacies because I would be afraid of getting ripped off. I would also be worried if it was legal for me to buy prescription drugs online. During the trial there was plenty of reasonable doubt of guilt. Some of the testimony of the expert witness and government witnesses lacked credibility. The prosecution should know that a lack of credibility causes a reasonable doubt of guilt. There were times when I leaned for conviction, however most of time I was undecided.

5) Assuming the defendants were convicted, what type of punishment do you think they would have faced?

If the defendants were convicted I would recommend probation and suspension of their DEA licenses. My reason for this punishment is because the government was unable to provide any witnesses that were harmed as a result of buying prescription drugs online. The government was unable to prove that buying prescription medications online was just as dangerous as buying street drugs.

6) Assuming the defendants were convicted, how would you have felt if they had received somewhere between five and ten years in prison?  Would that have been too little, too much, or about right – if they had violated the law?

If they had violated the law, I would not recommend prison time.  However, if they had to serve mandatory prison time, in my opinion, five to ten years would be too much time.

Thank you Juror No. 1 for your insight.  And though I can’t speak on its behalf, society thanks you too.  Cases like these just illustrate that although jury trials are messy they are a critical part of our liberty.  I know you took many weeks out of your life to sit on this jury.  The defendants, the justice system, and all of us were fortunate to have your service.