The opioid epidemic, and the congruent emphasis being placed on prosecuting opioid-related crimes by the Department of Justice, is having an effect on a wide-range of people who find themselves on the “business end” of a serious federal indictment. Some of those charged are familiar with, and to, the criminal justice system, but others never dreamed that they would be charged with a criminal offense, facing years in federal prison.
The ones familiar to the authorities are the street-level drug dealers who ply their trade in America’s underprivileged neighborhoods. They try to stay a step ahead of the bill collectors and out of the way of the law enforcement officers watching for illegal activity. Typically, they have been charged with criminal offenses before, and although they are often first-time defendants in federal court, they usually have multiple prior convictions in the state court system.
The ones new to the system are the wealthy physicians and pharmacists who often reside behind the walls of America’s gated communities, insulated from the criminal activity of the street-level drug dealers. These well-educated medical practitioners, more likely than not, have never been charged with a criminal offense. Ironically from an investigative and prosecutorial standpoint, the activities of these medical professionals can be easier to trace than activities of the street-level drug dealers, given that their actions are regulated and tracked in databases.
This article explores how opioid offenses are being prosecuted and defended in the federal criminal justice system, from the bottom of the socioeconomic heap to the top. Our current opioid crisis focuses on these two divergent types of defendants. Thus, this article provides representative examples: an independent pharmacist and a low-level opioid dealer.
Pill Mill Pharmacy Operations
A great deal of money can be made in the clandestine, shadowy opioid economy. For instance, prescription pads are stolen from doctors’ offices by rogue employees and sold on the black market to drug dealers. Those second-level pill-mill dealers present forged prescriptions to a pharmacy to get opioid pills. Other times, drug dealers, either personally or through people they recruit, visit doctors’ offices, falsely complaining of pain and injury. The physicians prescribe opioid pain pills to help them relieve the pain. These truthful (but fraudulently obtained) prescriptions are then taken to a pharmacy to be filled.
In contrast to the honest practitioners who are taken advantage of, there are also corrupt doctors who realize they are prescribing medication to patients who likely do not legitimately experience pain. These doctors instead intend to turn a profit by selling the prescribed opioids to persons who will likely sell them on the street. Their clinics are often referred to as “pill mills.” In fairness, nonetheless, it should be noted that by prescribing FDA-regulated opioids to addicts, these doctors will not lose their addict patients to the mounting ranks of opioid overdose victims that is epidemic with narcotics dealt on the street.
“Drug diversion” refers to the transfer of a controlled substance from the individual for whom it was intended to those who illicitly distribute the substance to make a profit. (See Oregon v. Ashcroft, 368 F.3d 1118, 1128 (9th Cir. 2004).) Once these drug dealers have a prescription for opioids, they find a pharmacy that will fill the prescription. More sophisticated operations have gotten their hands on multiple prescriptions to be filled, recruiting people to present prescriptions at the pharmacies. Often these are down-on-their-luck opioid addicts who are willing to take risks to get their drugs.
Rationally, it would seem that a pharmacist who is legally authorized to dispense controlled substances that are prescribed by a physician would not be breaking the law by filling prescriptions. The problem occurs when the pharmacist, in the view of the government, crosses the line from working as a medical practitioner to being an illicit drug dealer. To secure a conviction, the government must prove that a pharmacist knowingly filled prescriptions for a controlled substance outside the “usual course of pharmaceutical practice” and that the pills were prescribed for other than legitimate medical purposes. (See United States v. Lovern, 590 F.3d 1095 (10th Cir. 2009).) The more “red flags” that are present, the easier it is for the government to prove that the pharmacist crossed the line from legitimate to criminal activity.
Due to lawsuits, prosecutions, and government regulatory scrutiny in the last few years, the major chain pharmacies have become less inviting to people attempting to fill prescriptions that could be diverted, either through forgery or by being obtained illicitly or at a pill mill. The national chains also have become more vigilant about turning away patients they suspect are filling prescriptions illegally. There are certain red flags pharmacists are supposed to be aware of and look for so as to avoid filling prescriptions that are the product of drug diversion. Some of these red flags are
- Prescriptions written by doctors whose offices are a great distance from the pharmacy;
- The patient seeking to fill the prescription lives far away from the prescribing physician;
- The patient’s home is not near the pharmacy;
- A large percentage of the prescriptions presented at the pharmacy originated from the same doctor;
- The person presenting the prescription does not have insurance;
- The payment method is cash rather than a credit card;
- A line forms at the pharmacy, with each patient in the line presenting a prescription written by the same physician;
- The quantity of prescribed pills on the prescription appears to be tampered with, such as by adding a “0”;
- The physical prescriptions are written on low-quality printer paper and appear to be cut with a scissors;
- Prescriptions are written by practitioners who have gained the reputation of being “pill mill” doctors;
- A large percentage of prescriptions presented at the pharmacy are for controlled substances, as opposed to medications that are not controlled;
- Patients return to the pharmacy to fill another prescription prematurely, that is, during the timeframe when the earlier prescription should not have run out; and
- The parking lot of the pharmacy is full of cars with out-of-town license plates.
Of course, none of these red flags are, in isolation, a dispositive indication that illegal activity is occurring. For example, it is entirely possible that a perfectly legal prescription could be presented by an out-of-town worker or vacationer who does not have insurance and pays with cash rather than a credit card. A suspicious pharmacist can attempt to resolve the red flags by requiring the patient to display proper identification or calling the prescribing doctor to ensure that both the doctor and patient are legitimate. The more red flags presented on a frequent basis, though, the more likely that the pharmacist, whether purposefully or unwittingly, has become part of the drug diversion chain.
The Pharmacist and the Shattered American Dream
In 1988, a young man from West Africa journeyed to the United States in pursuit of the American dream. Twenty-seven at the time, Pharmacist was raised by well-educated, economically stable parents who expected great achievement from their children.
Educated initially in his native country, Pharmacist earned a B.S. in biochemistry. When he came to the United States, though, he could find only menial jobs. Despite his college degree, his first jobs in this country were washing cars and washing dishes.
After a year of just barely making it financially, Pharmacist was admitted into the pharmacy program of a prominent American university. In 1992, he graduated with a B.S. in pharmacy. Seeking employment, he job-hopped between several chain pharmacies, but after some negative reviews because of poor communication skills, and inertia in terms of salary increases, he decided to open his own independent pharmacy. That proved to be his undoing.
With the major chain pharmacies becoming increasingly challenging to those involved in drug diversion, the independent pharmacies have become the destination of choice for drug diverters. Pharmacist’s business gained a reputation as a place where the pharmacist did not ask a lot of questions, challenge the authenticity of prescriptions, or dwell on concerns about red flags. This created the perfect storm for a DEA investigation.
The investigation started with the arrest of two drug dealers who were recruiting people to travel with them from pharmacy to pharmacy, filling multiple illicit oxycodone prescriptions, and then transporting the illegally obtained pills to another state where they were sold at a huge profit. Trapped and facing decades in prison, these two women entered into a cooperation agreement with the government requiring them to give information about the pharmacies that provided them the oxycodone. Pharmacist’s pharmacy was first on that list.
Within a short time, other rings of drug diverters were identified and also implicated Pharmacist’s pharmacy as a preferred destination for filling oxycodone prescriptions. An investigation was launched by the DEA.
The DEA started with an inspection of Pharmacist’s pharmacy. A pharmacy is required, under federal regulations, to either permit an inspection or to insist that an administrative warrant be obtained before such inspection is allowed. The purpose of the inspection is to ensure compliance with the regulations governing the dispensation of controlled substances. Pharmacist, oblivious that he was the subject of a criminal investigation, and believing the inspection was routine, cooperated by allowing inspectors to take documentation of thousands of past prescriptions that he had filled. This enabled the DEA investigators to comb through the prescriptions at their leisure, looking for signs of forgery, manipulation, and other red flags.
The DEA then retained an expert pharmacist to examine suspect prescriptions and provide an opinion about whether red flags were evident. According to the expert, Pharmacist’s prescriptions contained multiple red flags, displaying obvious signs of drug diversion.
As occurs in many drug cases, the next investigative technique utilized by the DEA involved confidential sources going undercover to the pharmacy. Several people had been arrested at this point in the investigation, and to secure leniency in sentencing, some of them agreed to wear audio and video equipment as they entered Pharmacist’s pharmacy and interacted with him. Their DEA “handlers” told them to fill prescriptions, as they had done in the past, but to send clear signals to Pharmacist that what was really occurring was drug diversion.
A glaring example of conduct that the government used to demonstrate that Pharmacist was acting “outside the usual course of pharmaceutical practice” occurred when he invited two of the confidential sources to the area of the pharmacy where the drugs were dispensed (off-limits to the general public), a fundamental sin in that industry. Worse, while they were back there, Pharmacist proposed a sexual liaison with the women. Additional red flags these confidential sources obviously displayed included that they came from a different part of the state, they had their prescriptions issued by the same physician whose office was likewise not at all near the pharmacy, and the doctor was also far from where the confidential sources lived. In other words, there was a large triangle between doctor, patient, and pharmacy that spanned the length and width of the state. The DEA agents provided the women with cash to pay for the prescriptions. And—just to make sure there was no doubt that the government could later prove that drug diversion was occurring—the prescriptions themselves had the appearance of having been altered.
As the DEA investigation progressed, they identified more individuals who filled what appeared to be suspicious prescriptions at Pharmacist’s pharmacy—suspicious either because the prescriptions looked forged or because of the frequency with which the patients returned to the pharmacy for more opioid medication. When interviewed by agents, these people told a similar story: They were opioid dependent, and Pharmacist’s pharmacy was very willing to fill prescriptions for opioid medication without asking a lot of questions. They paid exclusively in cash, and the pharmacy charged considerably more for opioid medications than did other pharmacies in the area, most notably the chains. Furthermore, several of the female patients told the investigators that Pharmacist had propositioned them for sexual favors, and in at least a couple of the cases, the women engaged in sexual activity with Pharmacist at his home in exchange for oxycodone.
DEA investigators then subpoenaed Pharmacist’s bank records. According to those records, he made cash deposits over several years that added up to millions of dollars. There is, of course, nothing illegal about an entrepreneur making money, but his large cash deposits coincided exactly with the time the government was able to demonstrate that his pharmacy began dispensing large amounts of opioid medication.
There were other nails in Pharmacist’s coffin. Much like the confidential sources who had earlier entered the pharmacy and presented questionable prescriptions that Pharmacist readily filled, undercover law enforcement officers posing as patients went in and then walked out of the pharmacy with opioids after handing Pharmacist prescriptions rife with red flags. At trial, the government was able to show that once Pharmacist was aware he was being investigated, he engaged in a cover-up, making notations on prescriptions to make it appear that he called the prescribing doctors’ offices to verify that the prescriptions were legitimate. An accounting conducted by a DEA auditor showed that the pharmacy took in well over a million dollars over a three-year period, an astounding 99.5 percent of which was paid in cash. Over that same three-year period, the pharmacy distributed over a half million oxycodone pills, which comprised 74 percent of all the medications dispensed.
There was additional evidence that Pharmacist made false statements to controlled substance wholesalers to maintain his supply of oxycodone. The companies that distribute controlled substances to pharmacies, to limit their liability and avoid accusations of involvement in drug diversion, require pharmacies to fill out questionnaires that detail the percentage of prescriptions dispensed by the pharmacy for controlled substances, the percentage of cash payments (versus other means of payment), and whether the pharmacy fills prescriptions for out-of-town patients. (See Cardinal Health, Inc. v. Holder, 846 F. Supp. 2d 203 (D.D.C. 2012).) In contrast to the government accounting, which showed that 88 percent of the pharmacy’s drug dispensation was for controlled substances, Pharmacist documented a mere 5 percent—a discrepancy too large to be considered within the margin of error. Similarly, he wildly misrepresented his cash (versus credit card) sales and stated that the vast majority of pharmacy patients were local, when in fact they flocked to him from all over the state.
Given these facts, defending such a case is challenging. However, not all pill mill prosecutions have inculpatory evidence this compelling. Common defenses include a showing that the pharmacist was acting in good faith, in that he or she attempted to verify the legitimacy of the prescriptions presented and refused to fill prescriptions thought to be questionable because of obvious red flags. This often calls for a review of a pharmacy’s entire prescription record to see if the indicted counts were aberrations. The defense may remind the jury that acting outside the “usual course of pharmaceutical practice” is neither synonymous with medical malpractice nor the elements of the crime and that the government still must prove that the pharmacist’s dispensation of opioid medication was not as a result of mistake, negligence, or incompetence. In order to be guilty, the pharmacist must knowingly and intentionally disobey or disregard the law.
Given the overwhelming evidence against Pharmacist in this case, the jury returned a guilty verdict on the conspiracy and 11 oxycodone distribution charges. (See 21 U.S.C. §§ 846, 841(b)(1)(C).) At sentencing, he faced a guideline range of 292–365 months based on distribution of almost 16 kilograms of oxycodone over the three-year period spanned by the investigation. The court sentenced Pharmacist, a 54-year-old man with no prior criminal record, to 292 months in prison—effectively a life sentence. For this immigrant who journeyed to the United States with boundless hopes and aspirations, his American dream ended in a nightmare.
Prescription Drug Monitoring Programs
In light of the public health crisis brought about by the opioid epidemic, along with the predictable political fallout resulting from drug abuse, addiction, and deaths caused by opioids, states have implemented tracking tools designed to monitor and eradicate drug diversion. Over the past few years, virtually every state (Missouri is the only exception), the District of Columbia, and Guam have introduced Prescription Drug Monitoring Programs (PDMP). (See Frequently Asked Questions, Prescription Drug Monitoring Program, Training & Tech. Assistance Ctr., Heller Sch. for Soc. Pol’y & Mgmt., Brandeis Univ., [hereinafter Brandeis PDMP FAQs].)
PDMPs are electronic databases that collect and monitor information submitted by doctors and pharmacies about the prescribing and dispensing of controlled substances. They are, of course, looking for the typical red flags indicative of drug abuse and diversion. PDMP reporting is mandatory, and the goal is to keep track of the practitioners who are prescribing, the pharmacists who are dispensing, and the people who are using opioid medication.
The type of information PDMPs generally require when controlled substances are prescribed, dispensed, or obtained is
- The name and DEA registration number of the prescribing physician;
- The name, address, telephone number, and date of birth of the person for whom the prescription was written;
- The date the prescription was filled;
- The method of payment, whether by cash or insurance coverage;
- The name, quantity, and strength of the controlled substance dispensed;
- The name, address, and DEA registration number of the pharmacy dispensing the controlled substance;
- Whether the controlled substance was dispensed as an initial prescription or as a refill, and if a refill the number of refills ordered; and
- The name of the person picking up the prescription, and identifying information about that person if other than the individual for whom the prescription was written.
(See Information for Dispensers, Fla. Prescription Drug Monitoring Program, Fla. Dep’t of Health (Aug. 21, 2018).)
PDMPs are valuable tools to both law enforcement agencies and conscientious healthcare professionals interested in preventing illegal activity and protecting themselves from criminal and civil liability. Careful monitoring and use of PDMP data reduce drug abuse and diversion, lower the number of overdose tragedies, protect healthcare professionals from scrutiny by police and licensure boards, and aid patients who have a legitimate need for opioid medication to obtain it. In most jurisdictions, the agency that administers the state’s PDMP is either the Board of Pharmacy or the Department of Health. Other than healthcare practitioners and pharmacists, the entities that typically have access to PDMP data are law enforcement agencies conducting investigations, licensing and regulatory boards required to monitor professional compliance, state medical examiners and coroners involved in death inquiries, and research organizations performing studies. (Brandeis PDMP FAQs, supra.)
Street-Level Fentanyl Distribution Operations
Because of law enforcement’s focus on those involved in the diversion of opioid medication, people addicted to opioids have had to find an alternative means to satisfy their dependency. In what seems like a throwback to an earlier time, heroin has reemerged to satisfy the addicts’ needs. Street-level drug dealers, no less the entrepreneurs than their medical professional counterparts, have returned to the business of heroin distribution.
Unlike opioid pills distribution from a pharmacy, the quality control in street-level heroin distribution becomes a serious and potentially fatal issue. Over the past few years, fentanyl, a synthetic form of opiate, has allowed street wholesalers of heroin to enhance the drug’s effect at a fraction of the cost. According to the DEA, fentanyl is 100 times more potent than morphine and 50 times more potent than heroin; in other words, a little bit of fentanyl goes a long way. (Drug Enf’t Admin., U.S. Dep’t of Justice, Drugs of Abuse 40 (2017).) Being synthetic, fentanyl is also significantly cheaper to produce than heroin. By mixing in a small amount of fentanyl with heroin, higher-level distributors can increase their profits when they sell fentanyl-laced heroin to street-level dealers who presume they are buying pure heroin.
The problem, of course, is that the ultimate consumer of the heroin commonly is unaware that fentanyl is present, which can have fatal consequences. Increasingly, individuals feeding their addiction with heroin, crack, or methamphetamines are unwittingly consuming fentanyl. Consequently, the number of fentanyl-related overdose deaths is on a steep rise. Fentanyl has been mixed into other street-level drugs as well, such as cocaine, with similarly deadly results.
Nonetheless, it is not uncommon that street-level drug dealers are totally unaware that the drugs they are selling have been supplemented with fentanyl. A rude awakening occurs when they are arrested for drug distribution—a charge they are familiar with from past experience—but, unlike before, the indictment alleges a “death resulted” from their drugs. Under 21 U.S.C. §§ 841(a)(1) and (b)(1)(C), low-level heroin distribution has a maximum sentence of 20 years in prison, and no mandatory minimum. However, if death or serious bodily injury results from use of the substance (without regard to whether the seller intended that result, or even knew the drugs ingested by the victim contained fentanyl or would otherwise cause an overdose), the stakes are raised considerably. Drug distribution resulting in death or serious bodily injury is punishable by not less than 20 years and up to life in prison. (21 U.S.C. § 841(b)(1)(C).) And if the defendant has previously been convicted of a felony drug offense, and death or serious bodily injury results from the drug usage, a mandatory life sentence is required. (Id.)
The Dealer and Unintended Consequences
Against this backdrop comes Dealer’s federal prosecution. Thirty-year-old Dealer was born into a drug-infested neighborhood, mean streets that he had to navigate without a father figure to guide him. Doctors and pharmacists were nonexistent as role models, but drug dealers in fancy cars showing off their “bling” were abundant in his neighborhood. His well-intentioned mother was no match for the “opportunities” offered by the streets.
Dealer sustained a few minor convictions in his formative years, eventually graduating to an eight-year stint in state prison for burglary. Once out of prison, he scrimped by, working low-paying jobs and selling small amounts of cocaine and heroin on the streets. He met the victim of the drug overdose (“User”) while they were both staying at a shabby budget hotel.
User, a long-standing heroin addict, was from a different part of the state but came to town frequently to work a construction job. Dealer, on the other hand, was moving from hotel to hotel, lacking a stable place to live. The intersection of their lives proved fateful for both.
Once User found out that Dealer could supply him with heroin and cocaine, he put Dealer’s phone number on his speed dial and texted Dealer when in town. On the day User died, he texted Dealer that he was interested in “20 of each, boy [heroin] and hard [crack cocaine].” It is unclear whether Dealer actually sold User any heroin because the toxicology analysis conducted as part of the autopsy showed cocaine and fentanyl in User’s system, not heroin.
When User’s death was reported, police seized his phone immediately. His text messages revealed that the drug transaction occurred during the early morning hours of the day he died. Once his phone was analyzed, and the texts reviewed, the police decided to further their investigation of User’s drug overdose death by trying to contact the phone number on the other end of the texts. A subpoena to the phone carrier revealed that that phone belonged to Dealer.
In what has become a common method to investigate opiate and cocaine overdose death cases, an undercover detective texted the phone number User had used to set up his last drug purchase. The officer posed as User’s friend who was working in town and interested in buying drugs. While he initially expressed some suspicion, Dealer soon showed a willingness to accommodate the undercover detective. A heroin buy was set up at a local McDonald’s, and over the course of the next several weeks, three more small-scale heroin transactions occurred. After the fourth sale, Dealer was arrested for selling drugs to the undercover detective, as well as for selling the drugs that had resulted in User’s death.
This investigative technique first causes the drug seller to come out in the open to engage in the transactions with the undercover officer. Second, and critical to the prosecution for causing the overdose death, it effectively prevents the defendant from claiming that someone else was using his phone to conduct drug transactions. Finally, it offers the chance to record evidence (audio or video) of drug sales by the suspect.
The authorities gathered other evidence, as well. Detectives secured a warrant for cell phone data connected to Dealer’s phone and were able to place his cell phone in the vicinity of the hotel at the time User bought the fatal drugs. During interrogation where he was confronted with the evidence, Dealer confessed to selling cocaine to User as well as drugs to the undercover detective. However, despite intense questioning, he adamantly denied selling User anything that would have killed him.
In a fentanyl death case, the cause of the victim’s death is critical. The Supreme Court held that to be responsible for the victim’s death, there must be a “but for” relationship between the death and the sale of the drugs. In other words, it is not enough that the drugs sold by the defendant to the victim were a contributing factor in his death; they must be the cause of the victim’s death. The Court reasoned that, “at least where use of the drug distributed by the defendant is not an independently sufficient cause of the victim’s death or serious bodily injury, a defendant cannot be liable under the penalty enhancement provision of 21 U.S.C. § 841(b)(1)(C) unless such use is a but-for cause of the death or injury.” (Burrage v. United States, 571 U.S. 204, 218–19 (2014).)
The Burrage Court made clear that because the “death results” enhancement increases the minimum and maximum penalties faced by a defendant, it is an element of the offense, and as such must be submitted to the jury and found beyond a reasonable doubt. (Id. at 210.) In other words, for the penalty faced by a defendant to be drastically increased from a 20-year maximum sentence to a 20-year mandatory minimum and up to life sentence, the jury must find beyond a reasonable doubt that the drugs sold to the victim by the defendant were the cause of death or serious bodily injury, and not just a contributing factor. (See Alleyne v. United States, 570 U.S. 99 (2013); Apprendi v. New Jersey, 530 U.S. 466 (2000).)
For both the prosecution and the defense, the timing of the encounter between the defendant and the victim, and what occurred before and after, must be carefully examined. When there is significant intervening time between the sale and the death, the user may have gotten additional drugs from another supplier. Lab reports, toxicology results, and autopsy findings are studied and analyzed, as the amount of drugs and what they were mixed with can be critical in pinning the sales to a given distributor. Often these prosecutions necessitate expert witnesses such as chemists, toxicologists, medical examiners, and forensic cell phone/tower experts. The defense should consider challenging any expert opinion with their own consulting or testifying expert. The defense also should consider testing the underlying “scientific” evidence’s scientific reliability. (See Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993).)
One defense strategy is to deny that the defendant sold drugs to the victim at all. This may be available when the text messages are oblique or vague. The problem with this approach is that the government’s evidence concerning the sale by the defendant is often strong, especially where the transaction involving the victim’s death is followed by additional sales to an undercover law enforcement officer. The defendant who claims no drug deal occurred also risks losing all credibility with the jury. As a practical matter, conceding that a drug sale occurred between the defendant and the victim, but denying that the victim died as a result of the drugs distributed by the defendant, is often more effective. If successful, a jury verdict finding that the defendant is a drug dealer, but the drugs he or she sold to the victim did not result in the death, generally will mean the difference between the defendant serving the next few years in prison, as opposed to the next few decades.
According to remarks by former Attorney General Jeff Sessions, the Department of Justice is dedicating massive funding and resources to combating the opioid epidemic. Over 300 additional assistant US attorneys have been added nationwide, the largest prosecutor hire in decades. New tools, such as the Opioid Fraud and Abuse Detection Unit and the Joint Criminal Opioid Darknet Enforcement Team—designed to detect and monitor the prescription and dispensation of opioids by healthcare professionals—have been introduced. Since January 2018, over 200 doctors have been charged with opioid-related crimes. In 2017, the number of cases involving fentanyl prosecuted at the federal level tripled. (See Justice News, U.S. Dep’t of Justice, Remarks of Attorney General Jeff Sessions (July 13, 2018).)
It is evident from Sessions’ statements that the “war on drugs” is far from over, and on the new battlefield, law enforcement’s sights are trained on the opioid epidemic. Both healthcare professionals and street-level dealers are in the line of fire, and given the harsh sentences mandated by Congress, being charged with an opioid-related crime carries potentially enormous consequences. It is incumbent on both prosecutors and criminal defense lawyers to become educated about the complexities of opioid cases to ensure there is a level playing field in the courtroom, as the battle wages on. Clearly, much work lies ahead.