Jurors Gone Wild

The feds slink away from a flubbed Internet pharmacy case.

Between February and April, a rather remarkable legal drama unfolded in Judge William J. Zloch's courtroom in downtown Fort Lauderdale. Federal prosecutors had spent two years building their argument against doctors, pharmacists, and businessmen who were operating an Internet pharmacy network. But midway through the trial, their efforts unraveled in spectacular fashion. The case — titled United States of America v. Frank Hernandez et al. — featured misconduct by the prosecution, misconduct by the jury, two mistrials, and a judge refusing to sentence two men who'd pleaded guilty. In the end, the U.S. Attorney's Office was forced to turn tail and release defendants it once labeled as illegally peddling pharmaceuticals.

"There were several jaw-dropping moments," says Sean Ellsworth, one of about 20 defense lawyers who worked on the case.

"It certainly was a wild ride," Miami defense lawyer Peter Raben says. "There were a number of things I've never seen in 30 years of practice — and they all happened in this trial."

The Hernandez case first hit the courts in February 2007. Federal prosecutors indicted 14 people on charges of distributing controlled substances and conspiracy to distribute. Most of them were from South Florida, and there were three out-of state doctors. The feds claimed they had illegally sold appetite suppressants and sleeping pills. If convicted, they faced about five years in federal prison.

Here's how the business worked: Emmanuel Antonio and Theophilos Antiniou, two Broward men, formed a company called E.V.A. Global Inc., which set up various websites selling prescription drugs such as the sleeping pill Ambien. A buyer was directed to fill out a short medical questionnaire that asked about height, weight, symptoms, and so on. Once the buyer completed the questionnaire, he'd be directed to another website that would accept payment. E.V.A. Global then emailed the questionnaire to physicians who would decide whether to approve the buyer's selections. The doctors acted without ever seeing or speaking to the buyers. If a physician approved the requested purchase, one of several Internet-based pharmacies filled the order and shipped the medications.

In recent years, authorities have tried to clamp down on rampant prescription drug abuse. When the Drug Enforcement Agency broke up E.V.A. Global's network, and federal prosecutors charged everyone from the software developers to the pharmacists, the feds issued a press release congratulating themselves. U.S. Attorney R. Alexander Acosta ominously compared the network to a low-level pusher: "In this case, Internet pharmacies dispensed controlled substances much like a drug dealer would on the street — no questions asked," he said.

Mark R. Trouville, special agent in charge for the DEA in Miami, was quoted in the press release as saying, "These rogue websites are fueling prescription drug abuse... The DEA will remain diligent in this fight."

By the time the case came to trial this January, one defendant had been dropped. Three had pleaded guilty and begun serving their time in prison. Antonio and Antiniou — owners of E.V.A. Global — had been persuaded by the feds to plead guilty and testify against the eight remaining defendants.

Defense attorney Raben says the network was never a shady criminal syndicate as prosecutors contended; it was simply a chain of independent professionals, each of whom was legitimately doing his job. Although the doctors hadn't met patients face-to-face, he says, the questionnaire was a sufficient form of screening. "The doctors all felt they had prescribed these drugs for legitimate medical purposes," Raben explains. In turn, "The pharmacists figured that if doctors wrote prescriptions, they must be valid."

For seven weeks, jurors heard complex testimony about drugs and prescriptions. It was deep into the trial — week six — when Raben put his client, Frank Hernandez, on the stand. Hernandez owned drug supplier C&H Wholesale and Internet drug companies Lifeline Pharmacy and EZRX. A lawyer for another defendant, Steven Marhee, the chief financial officer at C&H Wholesale, began to cross-examine Hernandez. At that point, several lawyers recall, the government's lead prosecutor, Ellen Cohen, shot up and accused Marhee's lawyer of cross-examining Hernandez to cover up the fact that his defendant wouldn't take the stand.

Problem is, it's a big no-no for a prosecutor to comment in front of the jury about a defendant declining to testify. Doing so violates the defendant's constitutional right to remain silent.

Lawyers for four defendants who hadn't yet testified asked U.S. District Judge William J. Zloch to dismiss the case with prejudice and throw out the charges for good. For the judge to make that ruling, he would have to believe Cohen's exclamation had been a deliberate attempt to cause a mistrial.

Judge Zloch stunned the courtroom by granting the motion and dismissing the case against the four.

Only four defendants were left. After about seven weeks of trial, the jury began its deliberations. That's when things got crazier. One juror, an older woman, passed the judge a note. She was distressed because she'd heard another juror make comments that indicated he'd gone home at night and done his own research on the Internet about medications mentioned in the trial.

The judge brought out the juror, who eventually admitted his transgression. One by one, the judge brought out the other jurors to determine whether the panel had been tainted. As it turned out, eight of 12 jurors sheepishly admitted they had been doing their own Internet research.

"They Googled defendants' names. They Googled definitions of medical terms. There was a lot of Googling going on," says one lawyer in the case, who asked not to be named. One alternate juror was found to have been using the Internet on his cell phone during breaks in testimony. Another juror had dug up information showing one of the defendants had once been implicated for prescribing medicine that was used in a double suicide. Before the trial, his lawyer had fought to make sure this tidbit would be excluded from testimony.

Judge Zloch had no option but to declare a mistrial. Days later, the New York Times mentioned the case in a story called "Mistrial by iPhone," which explored how modern technology is challenging centuries-old courtroom rules.

The mistrial meant the four defendants were set to start all over with a fresh jury. But first, Judge Zloch presided over a sentencing hearing for the two website owners who had pleaded guilty, Antonio and Antiniou.

"The judge takes the bench, and he says, 'I sat in on the trial, and I don't think I can sentence them,'" Raben remembers. "These were the two who had developed the scheme!" Raben says. "They had pled guilty!"

But the judge decided the prosecution hadn't proven the two men broke the law. On April 6, Zloch threw out Antonio's and Antiniou's guilty pleas. Then he ruled the government had to fork over $600,000 it had seized from their business.

How odd is it for a judge to refuse to sentence someone who has pleaded guilty?

"I've never heard of it, ever," says attorney Joseph S. Rosenbaum, who worked on the case.

"It's beyond extraordinary," says David Bogenschutz, a high-powered attorney who represented Antiniou.

It became clear that prosecutor Cohen had little chance against the remaining four defendants. In another highly unusual move, she asked Zloch to dismiss the rest of the charges. He promptly did.

As for the three men who pleaded guilty early on, they're all just finishing prison sentences. Jeffrey Voluck, an attorney for one of them, says they'll now try to have their convictions reversed. And even though charges were dismissed against defendant Serge François, the lawsuit took a toll on him. Since being indicted, he was forced to shut down his pharmacy business. He will receive $91,000 that the government had confiscated.

Several attorneys in the case say they are considering yet another unusual legal maneuver: going after the government to recover attorneys' fees. There's precedent. In early April, U.S. District Judge Alan Gold awarded more than $600,000 in attorneys' fees to a Dr. Ali Shaygan of Miami after finding that the government pursued him overaggressively, going so far as to secretly record witnesses' phone calls.

Defense attorney Ellsworth says the case illustrates how the law struggles to keep up with ever-changing technology. "There's no such thing as an Internet pharmacy," he says. "A pharmacy is a building with people and boxes and pills. The government seems to have a problem with the lack of a physical encounter between a doctor and a patient — that someone can obtain a controlled substance without seeing a doctor in person."

Coincidentally, just last week a new federal law called the Ryan Haight Act went into effect. Named for an 18-year-old who overdosed on Vicodin he bought online, the law makes drug-disbursement networks such as E.V.A. Global clearly illegal by requiring doctors and patients to meet in person.

Bogenschutz speaks as though the dismissal of charges has renewed his faith in the American justice system: "For everyone out there who thinks the courts have abandoned their roles as neutral arbiters of what's in front of them," he says grandly, "this should be a wake-up call." He theorizes that when in doubt, "the judge should say, 'Is this what the law is meant for? When I don't have a good feeling, the call should go in the way of the defendant.'"

The U.S. Attorney's Office refused to comment for this story.

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