Shady Pharmacist's Conviction Affirmed; Flunky's Conviction Reversed
US v. Lovern, 2009 WL 2871538 (10th Cir. Sept. 9, 2009) (published):
Two employees of a shady internet pharmacy, Red Mesa, went to trial and were convicted of charges relating to a conspiracy to dispense drugs in violation of the Controlled Substances Act after the principal owner-operator of the pharmacy pled guilty. The Court affirmed the conviction of one defendant, Jerry Lovern, and reversed the conviction of the second employee, Robert Barron.
The principal owners, Mr. and Mrs. Hilst, began the business by submitting false information in their application to the Kansas Board of Pharmacy and the DEA. Their pharmacy obtained customers solely through two websites run by companies based in Costa Rica and Seattle. Customers submitted questionnaires and asked for prescriptions. The questionnaires were reviewed by doctors in the US and Puerto Rico, who almost invariably granted the prescriptions without ever seeing the patients or verifying the information. The website companies then filled the prescriptions through participating pharmacies, including Red Mesa. The business was lucrative; Red Mesa received more than $700k in its 8-month life. Mr. and Mrs. Hilst handled the business operations; Jerry Lovern was the principal pharmacist who filled the prescriptions, and Robert Barron was a high school dropout who worked as a computer technician, printing the labels for the prescriptions.
Lovern raised five challenges to his convictions: 1) they were contrary to the Controlled Substances Act and Gonzales v. Oregon;; 2) insufficient evidence; 3) denial of his expert witness; 4) 21 USC 841(a) was unconstitutionally vague as applied to him; and 5) he should have gotten his requested jury instruction on entrapment by estoppel. The Court rejected all the arguments and affirmed. Contrary to Mr. Lovern's characterization, the government did not attempt to prove that filling a lawful prescription via the Internet is illegal; rather, the government argued that issuance of a prescription based solely on an on-line questionnaire, without an existing doctor-patient relationship, exam, verification, or any further contact, fell outside the usual course of medical practice. The government proved that Mr. Lovern knew this was going on and still filled the prescriptions. The Supreme Court's Gonzales v. Oregon decision is not applicable because no interpretive rule was involved; the government proved its case the old-fashioned way, with witnesses and evidence. The insufficiency argument was quickly addressed, and dismissed, with the Court noting that Mr. Lovern himself testified that generally doctors wrote prescriptions for patients they had seen. Several other witnesses also testified as to usual medical practice. As to his expert witness, Mr. Lovern had unfortunately waived his right to object when he agreed that his expert was not qualified. The Court found no unconstitutional vagueness in the CSA as applied to Mr. Lovern, based again in part on his own testimony that he knew he had a legal duty to fill only prescriptions issued in the usual course of medical practice and that these prescriptions were not being prescribed in that manner. Finally, he was not entitled to an entrapment instruction; the facts that the pharmacy had a DEA license for a time and was investigated without telling Mr. Lovern he might be breaking the law did not affirmatively mislead him in such a way as to implicate due process.
Mr. Barron's convictions, on the other hand, were reversed because the government's evidence failed to include direct or circumstantial evidence that he knew the prescriptions were being improperly filled. Instead, the trial evidence showed the opposite: that "rogue" pharmacies often "use persons with limited or no knowledge" of standard pharmacy practices to facilitate their work. Mr. Barron, with only a 9th-grade education, a learning disability and lacking prior experience or training other than a 15-minute phone call with company representatives, fit the bill. Additionally, he did only menial computer tasks, without any communication with patients or doctors. Although there was evidence from which a jury might infer that Mr. Barron knew "something wasn't right" with Red Mesa, the majority concluded that such evidence did not show that Mr. Barron knew that the prescriptions were being filled contrary to normal medical practice.
Judge O'Brien dissented, and would have affirmed Mr. Barron's convictions too.
Two employees of a shady internet pharmacy, Red Mesa, went to trial and were convicted of charges relating to a conspiracy to dispense drugs in violation of the Controlled Substances Act after the principal owner-operator of the pharmacy pled guilty. The Court affirmed the conviction of one defendant, Jerry Lovern, and reversed the conviction of the second employee, Robert Barron.
The principal owners, Mr. and Mrs. Hilst, began the business by submitting false information in their application to the Kansas Board of Pharmacy and the DEA. Their pharmacy obtained customers solely through two websites run by companies based in Costa Rica and Seattle. Customers submitted questionnaires and asked for prescriptions. The questionnaires were reviewed by doctors in the US and Puerto Rico, who almost invariably granted the prescriptions without ever seeing the patients or verifying the information. The website companies then filled the prescriptions through participating pharmacies, including Red Mesa. The business was lucrative; Red Mesa received more than $700k in its 8-month life. Mr. and Mrs. Hilst handled the business operations; Jerry Lovern was the principal pharmacist who filled the prescriptions, and Robert Barron was a high school dropout who worked as a computer technician, printing the labels for the prescriptions.
Lovern raised five challenges to his convictions: 1) they were contrary to the Controlled Substances Act and Gonzales v. Oregon;; 2) insufficient evidence; 3) denial of his expert witness; 4) 21 USC 841(a) was unconstitutionally vague as applied to him; and 5) he should have gotten his requested jury instruction on entrapment by estoppel. The Court rejected all the arguments and affirmed. Contrary to Mr. Lovern's characterization, the government did not attempt to prove that filling a lawful prescription via the Internet is illegal; rather, the government argued that issuance of a prescription based solely on an on-line questionnaire, without an existing doctor-patient relationship, exam, verification, or any further contact, fell outside the usual course of medical practice. The government proved that Mr. Lovern knew this was going on and still filled the prescriptions. The Supreme Court's Gonzales v. Oregon decision is not applicable because no interpretive rule was involved; the government proved its case the old-fashioned way, with witnesses and evidence. The insufficiency argument was quickly addressed, and dismissed, with the Court noting that Mr. Lovern himself testified that generally doctors wrote prescriptions for patients they had seen. Several other witnesses also testified as to usual medical practice. As to his expert witness, Mr. Lovern had unfortunately waived his right to object when he agreed that his expert was not qualified. The Court found no unconstitutional vagueness in the CSA as applied to Mr. Lovern, based again in part on his own testimony that he knew he had a legal duty to fill only prescriptions issued in the usual course of medical practice and that these prescriptions were not being prescribed in that manner. Finally, he was not entitled to an entrapment instruction; the facts that the pharmacy had a DEA license for a time and was investigated without telling Mr. Lovern he might be breaking the law did not affirmatively mislead him in such a way as to implicate due process.
Mr. Barron's convictions, on the other hand, were reversed because the government's evidence failed to include direct or circumstantial evidence that he knew the prescriptions were being improperly filled. Instead, the trial evidence showed the opposite: that "rogue" pharmacies often "use persons with limited or no knowledge" of standard pharmacy practices to facilitate their work. Mr. Barron, with only a 9th-grade education, a learning disability and lacking prior experience or training other than a 15-minute phone call with company representatives, fit the bill. Additionally, he did only menial computer tasks, without any communication with patients or doctors. Although there was evidence from which a jury might infer that Mr. Barron knew "something wasn't right" with Red Mesa, the majority concluded that such evidence did not show that Mr. Barron knew that the prescriptions were being filled contrary to normal medical practice.
Judge O'Brien dissented, and would have affirmed Mr. Barron's convictions too.
posted by Anonymous at 2:23 PM
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