Tennessee Federal Criminal Lawyer Blog

One of the fastest growing areas of prosecution is what is commonly referred to as drug diversion. If a medical care provider either issues medication outside of accepted medical standards or if the provider diverts the medication away from the proper recipient, the provider may be charged with violating federal drug laws pursuant to 21 U.S.C. § 841, and the penalties can be severe, including the possibility of life imprisonment.

Jonesborough, Tennessee resident Sharon Minns Kyker, who previously worked as a registered nurse at the James H. Quillen Department of Veterans Affairs Medical Center, pled guilty earlier this year to obtaining controlled substances by fraud, deception, and subterfuge by means of falsely documenting having provided a dose to a patient. According to a press release from the United States Attorney's Office for the Eastern District of Tennessee, Kyker admitted to diverting a quantity of hydromorphone (aka Dilaudid) by falsely claiming that he had provided the medication to a patient.

Earlier this month, Kyker was fortunate to receive a sentence of three years of probation, during which time she must participate in mental health and substance abuse treatment, may not possess occupations with access to patient medications, and must complete 50 hours of community service.

Earlier this month, the Sixth Circuit Court of Appeals, in U.S. v. LaPointe, 2012 FED App. 11-5194 (6th Cir.), remanded the decision of the trial court where the defendant was originally charged with "conspiring to distribute or conspiring to possess with the intent to distribute oxycodone in violation of 21 U.S.C. §§ 846 and 841(a)(1) and (2) attempting to possess oxycodone with the intent to distribute in violation of 21 U.S.C. § 846." He was convicted on both counts and sentenced to sixty-three (63) months for each count to run concurrently.

LaPointe appealed both counts and won his appeal on Count I based on the denial of the lower court to allow jury instruction of the lesser included offense of conspiracy to possess. The lower court argued that the charge of conspiracy to distribute did not always include conspiracy to possess. However, the appellate court found that the Indictment of LaPointe described Count I as conspiracy to possess with intent to distribute which has always been held to include the lesser offense of conspiracy to possess. The appellate court reasoned that conspirators can have different objectives during the commission of a crime, and a defendant has the right for the jury to hear the lesser-included offenses so long as said offense meets the Colon standard which is the following:

• A proper request is made
• The elements of the lesser offense are identical to part of the elements of the greater offense
• The evidence would support a conviction on the lesser offense
• The proof on the element or elements differentiating the two crimes is sufficiently disputed so that a jury could consistently acquit on the greater offense and convict on the lesser offense. See United States v. Colon, 268 F.3d 367, 373 (6th Cir.2001).

LaPointe's Count I conviction was reversed and remanded back to the lower courts to issue an opinion consistent with the appellate court's ruling.

Most can agree that the abuse of prescription narcotics (oxycodone, oxycontin, etc.) is an epidemic in America. According to police, this type of drug abuse has now surpassed the use of methamphetamine and crack cocaine. Lawmakers in Tennessee hope to be at the forefront of combating the problem by proposing new legislation that would require prescribers and pharmacists to check the prescription drug database for potential abuse.

In an article by Matt Lakin (and posted on KnoxNews.com) titled "Checks and balances: Doctors, law enforcement spar over prescription-drug database," Tennessee Senator Ken Yager's bill addressing the prescription drug database is outlined. Senator Yager proposes that the current database be used more "effectively" by requiring pharmacists to check the database for all patients, even long established ones, before writing or filling any narcotic prescriptions. He hopes this will help deter patients from doctor-shopping for the drugs.
Tennessee's current database is only accessible by pharmacists and doctors. However, doctors and pharmacists are only required to log the prescriptions in the database. Currently, there is no law requiring the database to be checked prior to writing or filling a prescription.

According to the article the most recent statistics state that "13.7 million prescriptions" were logged last year, but only "1.2 million checks" were made of patient profiles in Tennessee.

Critics of Yager's bill are concerned about the time it will take doctors and pharmacist to check the database and the effects the bill may have on the doctor-patient relationship. Prosecutors' answer to these concerns are to allow broader access by others such as doctor's support staff, pharmacy technicians, probation and parole officers, drug court judges, etc. This broadening of access raises privacy and abuse concerns with the Tennessee Medical Association.

Yager states that it is likely that more than one bill will be introduced regarding the prescription database issue next year. His bill will only support checks made by pharmacist and doctors. He understands that a bigger burden will be placed on doctors and pharmacists, but explains something must be done to hinder those trying to obtain multiple prescriptions. Yager expects to present his bill in January, 2012.

According to a press release from the U.S. Attorney's Office for the Northern District of Georgia, federal law enforcement officers arrested five people last week connected to an alleged "pill mill" in the Atlanta, Georgia area. The five defendants are the owners, manager, and doctor at the Atlanta Medical Group, a pain clinic that prosecutors allege was illegally distributing Oxycodone. According to the indictment, Jason Cole Votrobek, Jesse Violante, and Roland Rafael Castellanos provided the financing and were responsible for operating the clinic; Tara Atkins worked as the office manager; and Dr. James Chapman was the primary physician on staff.

The investigation suggests that Dr. Chapman was seeing as many patients as possible in order to maximize profits since most of the Oxycodone was dispensed on site. The indictment further alleges that patients were not given proper medical examinations prior to receiving their prescriptions and that non-medical staff helped with medical procedures so that the clinic could see even more patients. The defendants may have pocketed millions of dollars in just one year. The five defendants are now facing drug and money laundering charges in federal court.

These arrests illustrate how law enforcement and prosecutors are increasing their focus on stopping the illegal distribution of prescription drugs. As John S. Comer of the DEA stated in discussing the investigation, "those involved in 'pill mill' activity are in fact drug dealers." Law enforcement is also focusing on illegal prescription drugs because of the consequences of abuse of pain medications. Overdose deaths caused by prescription pain killers have increased four-fold from 1999 and now account for more overdose deaths in the U.S. than heroin and cocaine combined.

Investigations into these "pill mills" frequently involve many different law enforcement organizations. For example, in the Atlanta Medical Group case, the FBI, the Georgia Bureau of Investigation, Drug Enforcement Administration, Bartow County Sheriff's Office, and the IRS all participated in the investigation.

The penalties these defendants are facing are severe, and this case illustrates that not only are the doctors and clinic owners exposed to potential criminal action, but the staff can be exposed to criminal action as well. Federal law provides a maximum sentence of 20 years in prison for illegal distribution of a controlled substance such as Oxycodone, and even more time could be warranted if the medicine distributed results in someone's death. Additionally, the charges for money laundering also carry fines and a maximum penalty of 20 years imprisonment. As the government continues to crack down on suspected pill mills, many more people could be facing these serious charges.

Federal criminal defense attorneys have argued for years over the seemingly unfair sentencing disparities for crack cocaine compared to powder cocaine in federal drug cases. Critics of sentencing guidelines pointed out that a person could have 100 times as much powder cocaine as a person carrying crack cocaine, yet both could receive the same sentence. The debate was heightened because studies demonstrated that crack cocaine use is more common in African-American communities while powder cocaine use is more common among whites. Thus, critics argued that the sentencing guidelines had a disproportionate and unfair impact on African-American defendants. The Fair Sentencing Act of 2010 ("FSA") is designed to reduce this disparity dramatically.

A new debate has now emerged: should the new guidelines in the FSA be retroactively applied to people who were charged with a crack-related offense before the FSA became law? If the FSA were retroactively applied to these cases, nearly 13,000 prisoners could be affected. The FSA itself, however, does not state whether Congress intended it to apply to such cases. This has led to a split of opinion among different courts about how to interpret the FSA, resulting in widely varying sentences among defendants.

For example, and as reported in the Times Free Press, two cases illustrate the courts' inconsistency in applying the FSA retroactively. In separate cases, Toney Robinson was facing a 10-year prison sentence and Jackie Campbell a 20-year sentence. Both offenses were crack-related, occurred before the FSA become law, and both of the defendants pled guilty. Robinson was sentenced to three years on the drug charge, yet Campbell was sentenced to the full 20 years. The difference was that the judge in Campbell's case did not interpret the FSA to apply retroactively. Therefore, Campbell was sentenced under the old guidelines. The judge in Robinson's case, however, applied the FSA's new guidelines retroactively, resulting in significantly less jail time.

Both cases are being appealed to the Sixth Circuit Court of Appeals. Meanwhile, other courts are also dealing with the same problems. The First Circuit has upheld retroactive application of the FSA, while the Seventh Circuit has reversed such an interpretation. With so many people's sentences potentially affected by retroactive application of the FSA, defendants will almost certainly ask the Supreme Court to resolve this issue.

As another example of the Government's crackdown on those persons involved in illegally distributing prescription pain medicine, last week in federal court in Greeneville, Tennessee,
U.S. District Court Judge Ronnie Greer sentenced Robert Velez, 26, of Florida, to 444 months in prison for his leadership role in an oxycodone conspiracy stretching from south Florida to northeast Tennessee and his involvement in a shooting incident in Morristown, Tenn., related to an oxycodone debt owed to Velez by a co-conspirator, according to a press release by the U.S. Attorney's Office for the Eastern District of Tennessee.

Velez decided to go to trial and was ultimately convicted at trial of:
1. conspiracy to distribute and possess with the intent to distribute oxycodone;
2. the use, carry, and discharge of a firearm during and in relation to a drug trafficking crime;
3. four counts of using a communication facility in committing, causing, and facilitating the commission of a drug trafficking crime; and
4. possession of a firearm by a convicted felon.

The prosecution argued at trial that Velez was supplying thousands of oxycodone pills to co-conspirators to transport and distribute in Tennessee. Evidence was also presented at trial that Velez "put a hit out" on one of his co-conspirators when the co-conspirator failed to deliver money to Velez after the co-conspirator was arrested by local police and a large number of oxycodone pills were seized from him. The money from the sale of these pills was allegedly owed to Velez. Velez allegedly also told said co-conspirator and his girlfriend that it was "game over" for both of them for not paying his drug debt.

Tennessee federal drug and firearm lawyers will often see enormous sentences result from a defendant's combined use of firearms while distributing narcotics. Further, this case shows how long law enforcement may be involved with a case prior to a defendant even being aware of government action. In Velez's case, the government's investigation began in May, 2008, almost 3 years before Velez was ever sentenced. A simple word of advice for potential defendants in any type of federal case would be to secure legal counsel and let your attorney's team begin its investigation immediately. A defendant could lose precious time and negotiating power by waiting until a formal indictment is issued.

Johnson City, Tennessee doctor Michael Dube entered a guilty plea last week in Federal Court in Greeneville, Tennessee, for omitting material information from records required to be kept under the Controlled Substances Act (CSA) and making a false statement in connection with the renewal of his registration with the Drug Enforcement Administration (DEA), according to a press release from the U.S. Attorney's Office for the Eastern District of Tennessee. Dube, who is already on probation with the Tennessee Board of Medical Examiners, faces up to nine years in prison and possible fines up to $500,000.

Per his plea agreement, Dube used his DEA registration to obtain prescription pain medication from drug suppliers which he then consumed himself. Further, he kept no records of the disposition of the drugs as required by the CSA and DEA regulations. Dube later confessed to DEA diversion investigators in March 2009 that he consumed the drugs himself and kept no records as to their distribution and disposition as required by statute and regulation, although he knew he was required to do so.

A medical practitioner must renew their DEA registration every three years, and Dube failed to answer his registration application accurately. In particular, one liability question on the application asks whether the applicant has ever surrendered (for cause) or had a state professional license or controlled substance registration revoked, suspended, denied, restricted, or placed on probation. Despite being placed on a 5-year probationary sentence in 2007, Dube answered "NO" to this question. The plea agreement states that at the time Dube made the representation, he knew that his state professional license had been placed on probation and that his answer to the question was false.

"This is a case where Dr. Dube had multiple opportunities to comply with state regulatory requirements and obey federal law. He has chosen not to do either . We will continue our efforts to help eradicate the illegal prescription pill distribution problem by focusing on the medical professionals and others who act outside of their licensed authority," said U.S. Atty. Bill Killian.