By Robert David Malove, Esquire
Exclusive to the Health Care Fraud Blog
FORT LAUDERDALE, FL (April 6, 2008) In a stunning development with implications in two large prosecutions, the United States dismissed with prejudice an Indictment against 10 individuals today in a South Florida courtroom, two of whom had already plead guilty and testified in the trial against the other eight defendants. This follows an eight week trial featuring two mistrials, one based on prosecutorial misconduct and also included accusations against the government of witness tampering and the testimony of a federal prosecutor to attempt to refute the testimony that the government gave permission for one of the defendants to operate his business.
The events leading to the dismissal were set in place last week when Judge William Zloch refused to sentence two defendants, Emanuel Anotonio and Theopholis Antoniuo. The judge then issued an order to the remaining defendants to provide legal authority to enable the court to dismiss the remaining defendants. This came after the judge expressed misgivings about whether the government had demonstrated the illegality of the activity of the defendants. The government then filed an unopposed motion to dismiss the remaining defendants, except one physician. It now appears the government is going to dismiss these charges as well.
The government originally charged 13 defendants in a 2007 Indictment in connection with the dispensing of prescription medications, diet drugs, via the internet. The defendants in US v. Hernandez, et al, were physicians, pharmacists, a prescription drug wholesaler and software operators charged with conspiracy and trafficking in controlled substances. The trial began in February of 2009. The nine defendants asserted at trial that their activities as doctors, pharmacists and software providers were lawful and approved by attorneys. The case took several unusual turns, including a government witness, a physician, testifying that he believed he had not committed a crime and had been coerced by federal prosecutors to testify. Two other witnesses, who had plead guilty had their guilty pleas vacated and their charges dismissed today, were operators of software designed to facilitate internet transactions and also had some difficulty explaining why they believed their actions were crimes.
However, the trial got even more unusual when one defendant, Lawrence Pinkoff, presented evidence over the objection of the government that the defendant had been operating his internet pharmacy related business for several years with the knowledge and permission of the United States government while he was a cooperating witness in an investigation in the Southern District of Georgia. This lead to the government presenting the testimony of an Assistant United States Attorney, James Durham, the prosecutor in the Georgia case.
The prosecutor testified that he was unaware of Mr. Pinkoff’s business activities despite being present and failing to object to those same activities at a hearing in 2003 in which the defendant sought permission of the court in Georgia to do so. Mr. Pinkoff had testified that he had told the government on numerous occasions about his business, so much so that the business formed the basis for his undercover work for the United States.
Mr. Durham’s testimony and the other evidence presented in the Hernandez trial lead to a motion filed last week by lawyers for the defendants in the Georgia prosecution, US v. Bradley, seeking to overturn the convictions of the defendants in that case and permit the defendants to take discovery depositions of federal agents and prosecutors. The basis of the motion was the failure of the United States to turn over evidence that Mr. Pinkoff was being simultaneously investigated and being used as a cooperating witness in that prosecution. The prosecution of Mr. Pinkoff in the Southern District of Florida commenced several months after the convictions of the Bradley defendants. Mr. Pinkoff’s attorney argued at trial that the government used his client to secure the Bradley conviction, allowing him to operate his business without disclosing to him they intended to prosecute him after he was done testifying.
The Hernandez trial originally made headlines when a mistrial had been declared after several jurors admitted to doing outside research during the trial, including Googling the defendants. One week earlier the judge declared a mistrial and dismissed four defendants for prosecutorial misconduct when the prosecutor made inappropriate comments during the testimony of defendant, Frank Hernandez, regarding the defendants’ Fifth Amendment Privilege. The judge ruled that the inappropriate comments were intentional and dismissed the four defendants that had not testified.
The United States has had an uneven record in prosecuting internet pharmacy cases. This has in part led to amendment of the Controlled Substances Act in 2008 through the Ryan Haight Act, designed to clarify the law concerning internet pharmacy and telemedicine. The Act became law in October of 2008 and regulations are currently pending.
Prior to adjourning, Judge Zloch commented that the case had indeed been a fascinating one. Several defense attorneys thanked the Court and government attorneys for the manner in which the case was ultimately resolved.
By Robert David Malove, Esquire