The U.S. Court of Appeals for the Eighth Circuit upheld the U.S. Federal Court for the Western District of Missouri in convictions of two participants in an elaborate conspiracy to sell and distribute prescription drugs, along with money laundering.
The case was United States v. Christopher Elder and Troy Solomon.
The matter arose from the late 2008 federal grand jury indictment of a Texas physician and three other defendants for participating in a conspiracy to illegally distribute prescription drugs. Prescriptions were written in Texas and filled by a Missouri pharmacy whereupon they were shipped back to Texas.
Mary Lynn Rostie and Cynthia S. Martin, both of Belton, Missouri and Christopher L. Elder, M.D., Troy R. Solomon and Delmon L. Johnson, all of Houston, Texas, were charged in an indictment that was returned on Feb. 6, 2008, by a federal grand jury in Kansas City.
As the date of the trial approached, charges were dropped against Delmon Johnson. Following a week long trial, a jury found Doctor Christopher Elder and Troy Solomon guilty of conspiring to dispense and distribute controlled substances, as well as aiding and abetting the distribution of hydrocodone (“Lortab” and “Lorcet”), alprazolam (“Xanax”), and promethazine from a Missouri pharmacy to Houston, Texas. Both Dr. Elder, a physician board certified in Texas, and Solomon, a Houston pharmacy owner, were convicted and sentenced to 15 and 24 months, respectively, in prison.
The jury also convicted Solomon of conspiring to commit money laundering in violation of 18 U.S.C. § 1956(h). The court ordered both defendants to pay joint and several forfeiture judgments of $991,114 under 21 U.S.C. § 853. On appeal, defendants challenge the sufficiency of the evidence supporting their convictions and forfeitures, and Dr. Elder argues the district court abused its discretion in not severing his trial from Solomon’s.
The Eighth District Circuit Court affirmed the convictions, despite the defendant-appealee’s arguments that the evidence was insufficient, based upon analysis of facts in the elaborate scheme in which prescriptions were conveyed to the Missouri pharmacy and the drugs shipped back to Texas, as well as issues involving a multitude of refills of prescriptions that were marked “no refill.” Defendants had sought out a pharmacy that would cooperate in the prescription-filling scheme.
Controlled Substances Convictions
Defendants Solomon and Dr. Elder were charged with conspiring to dispense and distribute controlled substances in violation of 21 21 U.S.C. § 841(a)(1), which prohibits dispensing and distribution of controlled substances when no patient-physician relationship exists. When the alleged offense involves the distribution of drugs prescribed by a licensed physician, and registered under the federal Controlled Substances Act, the government must prove that the physician’s activities “fall outside the usual course of professional practice.” (See United States v. Moore, 423 U.S. 122, 124 (1975); see also United States v. Smith, 573 F.3d at 657.)
The government’s evidence at trial showed, inter alia that Dr. Elder began working as a medical
director for a chiropractic clinic, and that drug salesman Troy Solomon began “investing” in the clinic by delivering bundles of cash to cover “overhead.” Solomon asked the owner of the clinic, Cynthia Martin, if she knew a pharmacist who would fill mail-order prescriptions for doctors with “high-profile customers” interested in confidentiality. Martin contacted Mary Lynn Rostie, owner and head pharmacist of The Medicine Shoppe (“TMS”) in Belton, Missouri. Rostie and Solomon negotiated prices for medications containing hydrocodone, a Schedule III controlled substance, alprazolam, a Schedule IV controlled substance, promethazine, a Schedule V controlled substance, and discussed how to get the drugs from Missouri to Houston.
Following these conversations, between August 2004 and October 2005, TMS filled prescriptions
written by three Houston doctors, including Dr. Elder, for 2,026,666 dosage units of hydrocodone, 336,240 dosage units of alprazolam, and 1,727,381 milliliters of promethazine with codeine.
Between August and October 2004, Martin delivered to TMS 544 prescriptions written by Dr. Elder. Most were for medications containing hydrocodone and alprazolam; the rest were for a syrup containing promethazine. When the prescriptions did not include dates or patient addresses, TMS staff requested the missing information from Solomon by phone. From his home, Solomon faxed
handwritten lists of patient addresses and dates of birth, corresponding to Dr. Elder’s prescriptions and sorted by medication. TMS then filled the prescriptions and sent them to Dr. Elder at the Texas clinic. Once there, the boxes of medications were signed for by clinic staff, and by Dr. Elder on one occasion, and then taken to the office of Ascencia Nutritional Pharmacy (“ANP”), a pharmacy co-owned by Solomon located on the same floor.
Dr. Elder left the Texas clinic in January, 2005; however, Solomon continued faxing refill authorizations for Dr. Elder’s prescriptions until at least August 2005.
Elder also argued that failure of the Missouri District Court to sever his case from that of Solomon was grounds to overturn the conviction. The court disagreed, stating, “Denial of severance is not grounds for reversal unless clear prejudice and an abuse of discretion are shown.” (United States v. Payton, 636 F.3d 1027, 1037 (8th Cir.), cert. denied, 132 S. Ct. 349 (2011). The prejudice must be “real,” that is, “something more than the mere fact that he would have had a better chance for acquittal had he been tried separately.” United States v. Mickelson, 378 F.3d 810, 817-18 (8th Cir. 2004). “Dr. Elder cannot meet this heavy burden.” The court said.
Kelly Pierce is a legal writer who likes to follow current events. If you are facing convictions yourself, be sure to seek guidance ffrom a certified criminal attorney.
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