U.S. v. Little

• Decision Date: 23 July 1999
• Docket Number: Civil Action No. 97-30067-MAP.
• Citation: 59 F.Supp.2d 177
• Parties: UNITED STATES of America, Plaintiff, v. James D. LITTLE, et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

Page 177

59 F.Supp.2d 177

UNITED STATES of America, Plaintiff, v. James D. LITTLE, et al., Defendants.

Civil Action No. 97-30067-MAP.

United States District Court, D. Massachusetts.

July 23, 1999.

Karen L. Goodwin, U.S. Attorney's Office, Springfield, MA, for Plaintiff.

Robert C. Pavlan, Jr., Pavlan & Associates, Belmont, MA, for Defendant.

MEMORANDUM AND ORDER REGARDING OBJECTIONS TO REPORT AND RECOMMENDATION ON PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT AND DEFENDANTS' MOTIONS TO SUPPRESS AND FOR SUMMARY JUDGMENT

PONSOR, District Judge.

On April 6, 1999 Magistrate Judge Kenneth P. Neiman recommended that the defendants' Motion to Suppress Evidence be denied, that the plaintiff's Motion for Summary Judgment be allowed and that defendant's Motion for Summary Judgment be denied. After a careful, de novo review of the motions, the Magistrate Judge's Report and Recommendation, the defendants' objections and the Government's opposition to those objections, this court is firmly persuaded that the Report and Recommendation is correct.

For the reasons set forth in Magistrate Judge Neiman's detailed and thoughtful memorandum, the defendants' Motions to Suppress and for Summary Judgment are hereby DENIED and plaintiff's Motion for Summary Judgment is hereby ALLOWED. The allowance of the plaintiff's motion disposes of the issue of liability. The clerk will set a date and time for a conference to establish a schedule to address the issue of remedy.

It is So Ordered.

REPORT AND RECOMMENDATION REGARDING DEFENDANTS' MOTION TO SUPPRESS EVIDENCE (Docket No. 32), PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (Docket No. 30), and DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (Docket No. 33)

NEIMAN, United States Magistrate Judge.

In its ten count complaint, the United States of America ("the Government") seeks civil penalties against James D. Little ("Little") and Little's HSC Pharmacy ("Little's Pharmacy") (collectively "Defendants"), for alleged violations of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. § 801 et seq. (the "Controlled Substances Act" or "Act"), and regulations promulgated thereunder. Each count of the complaint alleges a specific violation of the record keeping provisions of the Act. In Counts I through V, the Government maintains that Defendants had shortages of various Schedule II substances. In Counts VI through VIII, the Government alleges that Defendants had impermissible overages in violation of the Act. In Count IX, the Government claims that Defendants failed to file the requisite power of attorney form for one of its pharmacists. And in Count X, the Government alleges that Defendants failed to accurately record the receipt of a number of controlled substances on the required Drug Enforcement Administration ("DEA") form 222.

Presently before the court is the Government's motion for summary judgment, in which it claims that Defendants are strictly liable, as mandated by the Act, for the various violations proven by the evidence of record. In turn, Defendants have moved for summary judgment claiming that the Government presents insufficient evidence as a matter of law. Defendants have also moved to suppress evidence obtained through an administrative warrant.

All three motions have been referred to the court for a report and recommendation pursuant to Rule 3 of the Rules for United States Magistrates of the United States District Court for the District of Massachusetts. See 28 U.S.C. § 636(b)(1)(B). For the reasons which follow, the court will recommend that Defendants' motions to suppress and for summary judgment be denied and that the Government's motion for summary judgment be allowed.

I. SUMMARY JUDGMENT STANDARD

In accordance with Fed.R.Civ.P. 56(c), summary judgment will be granted if "there is no genuine issue as to any material fact" and "the moving party is entitled to a judgment as a matter of law." Magee v. United States, 121 F.3d 1, 3 (1st Cir. 1997). Once the moving party has demonstrated that no genuine issue of material fact exists, the burden is on the opposing party to contradict that demonstration by coming "forward with specific provable facts which establish that there is a triable issue." Aponte Matos v. Toledo Davila, 135 F.3d 182, 186 (1st Cir.1998). A genuine issue is one which a reasonable fact finder could resolve in favor of the nonmoving party. Id.

Not every genuine factual conflict, however, necessitates a trial. "It is only when a disputed fact has the potential to change the outcome of the suit under the governing law if found favorably to the nonmovant that the materiality hurdle is cleared." Parrilla-Burgos v. Hernandez-Rivera, 108 F.3d 445, 448 (1st Cir.1997) (internal quotations omitted). The facts are to be viewed in a light most favorable to the non-movant. Dykes v. DePuy, Inc., 140 F.3d 31, 36 (1st Cir.1998). When deciding cross motions for summary judgment, the court must consider each motion separately and draw inferences against each movant in regard to their respective motions. Reich v. John Alden Life Ins. Co., 126 F.3d 1, 6 (1st Cir.1997). Summary judgment may be granted when there is no dispute as to any material fact and only questions of law remain. See id.

II. FACTUAL BACKGROUND

The facts are largely undisputed, particularly because Little asserted his Fifth Amendment privilege against self-incrimination with regard to most of the Government's allegations. At all relevant times Little was the president, treasurer and owner of Little's Pharmacy, a retail pharmacy in North Adams, Massachusetts. As it was authorized to dispense Schedule II, III, IV and V controlled substances, the pharmacy was required to register with the DEA. The DEA monitors registrants' compliance with the record keeping provisions of the Act through administrative inspections and audits.

In April of 1995, DEA investigator Jerry Campagna received an anonymous tip that an employee of Little's Pharmacy may have been diverting an oxycodone based drug. On May 9, 1995, pursuant to the Controlled Substances Act, the Government submitted an application for an administrative warrant to inspect, copy and verify the correctness of records, reports and other documents. According to the application, Little's Pharmacy had never before been inspected to ensure its compliance with the Act.

After the warrant was issued by this court, an administrative inspection was conducted at Little's Pharmacy on May 11, 1995, followed by a records audit. (Exhibit 1 (Docket No. 31) Lombardo Dec. ¶ 4.) The inspection and audit uncovered inaccuracies in Little's Pharmacy's records, (id. ¶ 5; Exhibit 2), including shortages of five Schedule II controlled substances. Those shortages included 3,084 tablets of Roxicet, 642 tablets of Methylphenidate 5 mg, 561 tablets of Methylphenidate 10 mg, 286 tablets of Percocet, and 250 tablets of Roxiprin. (Lombardo Dec. ¶ 6; Exhibit 2; Exhibit 4 (Little Dep. at 10-13); Exhibit 5 (Little Ints. Nos. 14-22).) The Government maintains that each of the missing narcotics has a black market or street value and a high potential for abuse. (Lombardo Dec. ¶ 7.)

The audit also disclosed several overages of Schedule II substances. In particular, the pharmacy lacked the requisite DEA documentation, form 222, to account for 220 tablets of Methylphenidate 20 mg., 179 tablets of Ritalin 5 mg., and 120 tablets of Ritalin 10 mg. (Lombardo Dec. ¶ 9; Little Dep. at 15-16.) Also disclosed was an incomplete form 222, filled in by Little, which lacked the number of packages and date received of certain Schedule II substances. (Lombardo Dec. ¶ 10; Exhibit 3; Little Dep. at 8.)

The inspection also revealed other deficiencies, specifically that Little's Pharmacy did not have a power of attorney on file for its pharmacist, John Fantasia ("Fantasia"). A power of attorney must be filed for individuals authorized by the pharmacy to obtain and execute order forms. (Lombardo Dec. ¶ 9; Little Dep. at 15-16.)

III. DISCUSSION

A. Defendants' motion to suppress¹

Defendants assert that all evidence seized as a result of the May 11, 1995 execution of the administrative inspection warrant should be suppressed. Defendants claim that the particularity requirements for issuance of an administrative warrant were not met and that the inspection was mere pretense for a criminal investigation.

Although, generally speaking, "[t]here is no exclusionary rule in civil cases," Borges v. Our Lady of the Sea Corp., 935 F.2d 436, 440 (1st Cir.1991), the Fourth Amendment does govern administrative warrants. Donovan v. Enter. Foundry, Inc., 751 F.2d 30, 35 (1st Cir. 1984). If an administrative warrant may be quashed for insufficient indicia of probable cause, even when probable cause for an administrative warrant is less strict than that for a criminal warrant, id. at 33-34, the court sees no reason why the evidence seized by such a warrant could, under certain circumstances, also be "quashed," i.e., suppressed. Indeed, even in civil cases, the decision to exclude evidence is within the discretion of the court. Borges, 935 F.2d at 440.

There appears to be no dispute that items to be inspected and seized through an administrative warrant need be stated with some degree of particularity. Marshall v. Barlow's, Inc., 436 U.S. 307, 309-12, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978). The mere assertion in an application for an administrative warrant that the search will be limited to evidence deemed violative of a particular statute may be impermissibly overbroad. United States v. Storage Spaces Designated Nos. 8 and 49, 777 F.2d 1363, 1369 (9th Cir.1985). "Delineating the scope of a search with some care is particularly important where documents are involved." Marshall, 436 U.S. at 324, 98 S.Ct. 1816. If a warrant provides "sufficient standards by which the DEA Investigator reasonably could distinguish between those documents he could inspect and those he could not the warrant [is] sufficiently...