Criminal Defense Attorney Analysis of Internet Pharmacy, Prescription, and Drug Law

Internet Pharmacy Law Convictions: Brick and Mortar Pharmacies

I previously wrote about the legal difficulties of convicting an internet pharmacy or pharmacist pre and post Ryan Haight Act.  Specifically, I noted the hurdles to persuading a jury that a pharmacist knew (as required by the Controlled Substances Act) that he or she was filling illegal prescriptions beyond a reasonable doubt.

One of the ways prosecutors seek to prove such cases is to utilize charts (and sometimes experts) to compare the sales of the prescription drug in question of the defendant pharmacy to other similarly situated pharmacies.  In fact, the DEA offered similar comparisons when citing the justifications for the Ryan Haight Act:

Boggs (DEA Special Agent) said the average legitimate U.S. pharmacy dispensed 88,000 hydrocodone tablets in 2006. He said 34 illicit sites that the DEA investigated that year sold about 98 million doses of the painkiller.

In other words, an expert might state that a small town pharmacist that sells 10 million Vicodin or Xanax pills should know that the prescriptions were issued outside the usual course of professional practice and, thus, illegal, since other small town pharmacies in similar geographic areas sell, for example, only 20,000 pills per year.  Similar testimony is used in other drug cases, including convenience store distribution cases where the government attempts to prove abnormal sales of cold medication (which can be used to make methamphetamine).

Unfortunately, this type of comparison in online pharmacy prosecutions is fundamentally flawed.  One simply cannot compare a local pharmacy with no internet based operations to a pharmacy doing both local and internet business.  An internet pharmacy’s customer base does not have geographical limitations, whereas a purely local brick and mortar pharmacy is limited to the surrounding population.  In fact, the Court in U.S. v. Fuchs, 05-10426 (5th Cir., Oct. 17, 2006), alluded to a similar argument:

The government offered into evidence a chart comparing the number of hydrocodonetablets dispensed at Friendly (Pharmacy) over a fourteen-month period with the number of hydrocodone tablets in Garland, Texas over the same period.  The chart showed that the local pharmacies dispensed 165,200 and 256,450 tablets respectively and that Friendly dispensed 3,243,900 tablets.

[Defendants] argue that the chart had little probative value because it compared local, neighborhood pharmacies with an Internet pharmacy having customers throughout the United States without making an attempt to compare the pharmacies in terms of total sales.

We need not decide whether the district court abused its discretion in admitting the chart because we conclude that its admission, even if erroneous, was nonetheless harmless.  The chart was offered to show that the defendants should have known, based on the comparatively high volume of controlled substances being dispensed at Friendly, that the physicians and pharmacists were acting outside the usual course of professional practice.  As we have discussed, there was ample other evidence from which the jury could have inferred the defendants’ guilty knowledge.  Any error in admitting the chart was therefore harmless.

Here the comparison was harmless, because it was cumulative evidence of the defendants’ knowledge.  While the court did not expressly say so, it very strongly implied that, if the comparison was the only evidence of “knowledge,” it would have immediately reversed the conviction based upon the argument that I outlined.

The content on this post does not constitute legal advice and is for informational purposes only.  You should not act upon the information presented on this website without seeking the advice of legal counsel.  Should you wish to speak to an experienced criminal defense attorney knowledgeable in internet pharmacy, prescription, and drug law, please feel free to contact me directly.

Category: Internet Pharmacy Law