Articles Posted in Drug Crimes

Earlier this year, the United States Attorney’s Office for the Northern District of Georgia announced that federal prosecutors and federal agents are ramping up criminal investigations and prosecutions of so-called “pill-mills” in metro Atlanta. The statement (which was reported in the Atlanta Journal Constitution) was made during a “summit” on prescription drug abuse held here in Atlanta back in March.

Since that “summit”, federal prosecutors in Atlanta have secured indictments against doctors and others, claiming that these individuals have violated federal controlled substance laws. Indeed, as recently as last month, federal prosecutors indicted doctors, managers, and owners of “Atlanta Medical Group”, charging these individuals with a number of federal offenses. According to the press release issued in connection with the federal indictment, these individuals operated a “pill-mill”, illegally distributing oxycodone in violation of federal law.

There is no doubt that prescription drug abuse is a serious problem that needs to be addressed. However, it is equally true that chronic pain is also a serious problem in the United States. Indeed, just last week, the New York Times published an article discussing a sweeping review on this issue that was recently released by the Institute of Medicine – the medical branch of the National Academy of Sciences. According to that review, it is “estimated that chronic pain afflicts 116 million Americans, far more than previously believed.” The article goes on to describe that “[t]he toll documented in the report is staggering[,]” leading the chief of pain management at the Stanford School of Medicine (Dr. Sean Mackey) to conclude that number of people suffering from chronic pain “is more than diabetes, heart disease and cancer combined.”

Crime%20lab%20photo%20courtesy%20of%20U.S.%20ArmyLast week the Supreme Court vacated and remanded Briscoe v. Virginia for proceedings consistent with the decision in Melendez-Diaz v. Massachusetts. We discussed Melendez-Diaz last summer in this post.

In Melendez-Diaz, the Supreme Court held that crime lab reports are testimonial statements covered by the Confrontation Clause of the Sixth Amendment. For such reports to be admissible, the forensic analysts must testify as witnesses in criminal trials, both federal and state. Shortly after that decision, the Court granted cert in Briscoe, a case presenting the same issue. Justice Scalia criticized the grant of cert, asking, “Why is this case here except as an opportunity to upset Melendez-Diaz?”

He asked that question at oral argument less than one month ago. SCOTUSblog covered that oral argument thoroughly in this post. They also explained last week’s decision in the context of the changing Court in the first half of this SCOTUSblog post.

Supreme-Court This week, the Supreme Court agreed to hear Abbott v. U.S. and Gould v. U.S. These criminal cases involve a deep circuit split among the federal courts that we addressed in this post in September, when the 11th Circuit decided U.S. v. Segarra.

The Armed Career Criminal Act (ACCA), drug laws, and the gun statute 18 U.S.C. § 924(c) each carry heavy mandatory minimum sentences. The ACCA and drug minimums are often longer than the minimum called for by § 924(c). § 924(c) contains a prefatory clause, called the “except” clause, that applies the subsection “[e]xcept to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law.” The plain language of that clause prohibits application of § 924(c) where defendants are subject to greater minimums.
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Yesterday a jury found Georgia criminal defense attorney J. Mark Shelnutt not guilty on all counts. He was acquitted of money laundering, drug conspiracy, and attempted bribery.

Three weeks ago, the Eleventh Circuit Court of Appeals, which hears appeals from cases in Georgia, Florida, and Alabama, decided U.S. v. Velez in favor of the defendant. That case involved a money laundering charge against a criminal defense attorney under 18 U.S.C. § 1957. Shelnutt was prosecuted under 18 U.S.C. § 1956, which required federal prosecutors to attempt to prove that ill-gotten gains were used for certain prohibited purposes, including facilitating underlying criminal activity, tax evasion, or evading money laundering statutes. The prosecution was unable to prove its case.

More information in the Shelnutt case can be found here.

On September 15, the Eleventh Circuit Court of Appeals, which sits here in Atlanta, Georgia, decided a federal drug and firearm case, U.S. v. Segarra. Drug laws and the gun statute 18 U.S.C. § 924(c) each carry heavy mandatory minimum sentences. The drug minimums are often longer than the minimum called for by § 924(c). In Segarra the Eleventh Circuit was confronted with what is called the “except” clause in § 924(c). Despite the language in this clause, the Eleventh Circuit ruled for the government, and said that the drug and § 924(c) minimum sentences must run consecutively with one another, instead of having the shorter gun sentence run concurrently with the drug penalty.

Mr. Segarra pleaded guilty to possession with intent to distribute crack, as well as possession of a firearm in furtherance of a drug-trafficking offense, in violation of § 924(c). Generally, § 924(c) provides for a minimum sentence of five years for possession of a gun during any crime of violence or drug trafficking crime, in addition to the punishment for the underlying crime. However, the section begins with the following exception: “Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law…”

Mr. Segarra, who was sentenced to the minimum sentence of ten years for his drug crime and an additional five years for the firearm, argued on appeal that his five-year minimum consecutive sentence for the firearm was prohibited by the “except” clause because the underlying offense carried a greater mandatory minimum. The Second Circuit Court of Appeals followed this interpretation in U.S. v. Williams, reasoning that the plain language of the statute forbids the mandatory minimum for the firearm from applying where another provision of law requires a higher minimum sentence.

Last week, the Eleventh Circuit Court of Appeals decided United States v. McIntosh, a federal criminal double jeopardy case. The Eleventh Circuit is located here in Atlanta and hears appeals in federal cases from Alabama, Florida, and Georgia. The Double Jeopardy Clause has been whittled down, but this case shows that there are still some circumstances in which the Eleventh Circuit recognizes its necessity.

In McIntosh, the defendant was indicted on drug and firearm charges and pleaded guilty to those charges. Before his sentencing, the prosecutor realized that the offense date in the original indictment was wrong, so he filed a second indictment, identical to the first, with the exception of only the corrected date, and a motion to dismiss the first indictment, which the court granted. McIntosh moved to dismiss the second indictment as barred by the Double Jeopardy Clause, but the court denied the motion. McIntosh then conditionally pleaded guilty to the second indictment, reserving his right to challenge the denial of his motion to dismiss.

The Eleventh Circuit held that jeopardy attached when McIntosh pleaded guilty to the first indictment, so the later indictment for the same offenses violated the Double Jeopardy Clause. The Court vacated his (second) conviction and remanded to the district court with instructions to dismiss the second indictment.

A new federal criminal law directed at online pharmacies went into effect in April. The lawyers at Kish & Lietz have represented many targets and potential targets of investigations and prosecutions involving these types of online pharmacies, as well as other drug prosecutions. Recent Internet drug sale laws may encompass more behavior than the primary reasons for their enactment.

The Ryan Haight Online Pharmacy Consumer Protection Act makes it illegal to distribute controlled substances that are prescription drugs over the Internet without a valid prescription or to advertise for such distribution. “Valid prescription” is defined as “a prescription that is issued for a legitimate medical purpose in the usual course of professional practice” by a practitioner who has evaluated the patient in person at least once or, if that practitioner is unavailable and has evaluated the patient in-person within the past year, then a practitioner whom he requests to evaluate the patient. The Act also permits states to sue online pharmacies and imposes registration and reporting requirements on certain online pharmacies.

The primary function of the Act is to address online pharmacies, which deliver controlled substances by means of the Internet. Its chief provisions amend 21 U.S.C. Section 841, a part of the Controlled Substances Act that lists illegal conduct and penalties. The new law is targeted at people and entities such as doctors, pharmacists and pharmacies, and web site owners involved with online pharmacies that issue and fill prescriptions for controlled substances based solely on completion of online medical questionnaires. It is not expressly limited to online pharmacies, however, or to the types of targets listed. Federal prosecutors may use this law against anyone who delivers, distributes, or dispenses a controlled substance by means of the Internet, or helps someone do so, without authorization.

A couple of weeks ago, the federal Supreme Court decided a criminal case, Melendez-Diaz v. Massachusetts, holding that the admission of crime lab reports requires the forensic analysts to testify in person. The Georgia Supreme Court adopted the same rule in 1996 for state criminal cases brought here in Georgia and we are pleased that it will now apply in federal criminal cases, as well as in other states that didn’t previously have the rule.

Justice Scalia, a strong defender of the Sixth Amendment Confrontation Clause, wrote the majority opinion in Melendez-Diaz. The basic idea of the Confrontation Clause is that people have the right to be confronted with witnesses against them so they have a chance to defend themselves against the charges. In Crawford v. Washington, the Court held that testimonial statements against a defendant are inadmissible unless the witness appears at trial or, if the witness is unavailable, the defendant has had a prior opportunity for cross-examination. In this case, Scalia explained that the crime lab reports were affidavits, which fall within the “core class of testimonial statements” covered by the Confrontation Clause and addressed in Crawford. For that reason, the analysts making the statements must appear at trial.

The dissent argued that forensic evidence is uniquely reliable compared to other types of testimony and that cross-examination of the analysts would be empty formalism. To most people who watch TV shows like CSI, this argument has merit – scientific evidence seems indisputable. But not all forensic analysts are as intelligent and well-educated as Gil Grissom. The Court noted that “[s]erious deficiencies have been found in the forensic evidence used in criminal trials… One study of cases in which exonerating evidence resulted in the overturning of criminal convictions concluded that invalid forensic testimony contributed to the convictions in 60% of the cases.” Confrontation will help assure accurate forensic analysis by weeding out both fraudulent and incompetent analysts.