U.S. v. Quinones

• Decision Date: 19 February 2008
• Docket Number: No. 06-CR-845(S-2)(FB).,06-CR-845(S-2)(FB).
• Citation: 536 F.Supp.2d 267
• Parties: UNITED STATES of America, v. Antonio QUINONES, also known as "Tony," Alfred Valdivieso, Michael Depinillos, Herman Quinones and Charlie Lopez, Defendants.
• Court: U.S. District Court — Eastern District of New York

536 F.Supp.2d 267

UNITED STATES of America, v. Antonio QUINONES, also known as "Tony," Alfred Valdivieso, Michael Depinillos, Herman Quinones and Charlie Lopez, Defendants.

No. 06-CR-845(S-2)(FB).

United States District Court, E.D. New York.

February 19, 2008.

Benton J. Campbell, Esq., United States Attorney, Eastern District of New York, by Jeffrey Rabkin, Esq., Assistant United States Attorney, Brooklyn, NY, for United States.

Stephen H. Rosen, Esq., Miami, FL, for Defendant Antonio Quinones.

Jerome J. Froelich, Jr., Esq., Atlanta, GA, for Defendant Alfred Valdivieso.

Edward R. Shohat, Esq., Sharon Lee Kegerreis, Esq., Miami, FL, for Defendant Michael Depinillos.

Frank Anthony Doddato, Esq., Garden City, NY, for Defendant Herman Quinones.

Ken T. Lange, Esq., North Miami, FL, for. Defendant Charlie Lopez.

MEMORANDUM

BLOCK, Senior District Judge.

Defendants are charged in a Superseding Indictment with (1) conspiracy to distribute, and to possess with intent to distribute, controlled substances, in violation of 21 U.S.C. § 846; (2) distributing, and possessing with intent to distribute, controlled substances, in violation of 21 U.S.C. § 841; and (3) money laundering conspiracy, in violation of 18 U.S.C. § 1956. All defendants, except Alfred Valdivieso, have moved to dismiss the Superseding Indictment on the grounds (1) that the acts they are alleged to have committed are not proscribed by the federal drug laws; and, alternatively, (2) that those laws, as applied to them, are unconstitutionally vague.

Oral argument was held on January 18, 2008. At the conclusion of the argument, the Court denied the motions and stated that a full explanation would be forthcoming in a written decision.

I

This prosecution is, by no means, a typical drug case. The government does not allege that the defendants distributed and conspired to distribute controlled substances through clandestine deals in a dark alley; rather, it alleges that defendants Antonio Quinones, Herman Quinones, Michael Depinillos and Charlie Lopez ("the moving defendants") created and operated several websites, and in so doing, conspired with and aided and abetted medical professionals such as defendant Valdivieso, a physician licensed in Puerto Rico, to distribute controlled substances outside the usual course of professional practice. The Superseding Indictment describes the details of the operation as follows:

• The websites "permitted customers to provide their credit card information and required them to complete brief on-line questionnaires before ordering specific drugs, including the, Controlled Substances. Customers were not required to submit a valid form of identification or a valid prescription for the Controlled Substances they ordered." Superseding Indictment ¶ 21.

• The on-line questionnaires were sent to doctors such as Valdivieso. These doctors "purported to review the on-line questionnaires and then wrote and authorized a prescription for the Controlled Substances requested by the customers." Id. ¶ 22. Although the on-line questionnaires included' a brief medical history, "at no time during the questionnaire review process did defendant ALFRED VALDIVIESO physically examine and obtain a complete medical history from the customers. Nor did VALDIVIESO make an effort to confirm the accuracy of the information provided by the customers in the on-line questionnaires. Rather, after purportedly reviewing only the customers' on-line questionnaires, defendant ALFRED VALDIVIESO wrote and authorized prescriptions for the Controlled Substances requested by the customers." Id. ¶ 23.

• Various pharmacies throughout the United States (including the Eastern District of New York) accessed the websites, filled the orders once prescriptions were issued, and shipped them to customers using Federal Express accounts held by Antonio Quinones, Herman Quinones and Michael Depinillos. See id. ¶¶ 24, 26.

• Each completed order was charged to the credit card information the customer had provided. Proceeds from the sales were wiretransferred to bank accounts controlled by Antonio Quinones, Herman Quinones and Michael Depinillos. See id. ¶ 25.

• For each order, the website operators paid a fee to All Service Consultants, Inc. All Service Consultants, in turn, paid Valdivieso a fee for each order he reviewed. See id. ¶ 27.

At this stage, these allegations must be taken as true because Federal Rule of Criminal Procedure 12(2) precludes pretrial motions that would require. "a trial of the general issue." See also United States v. Alfonso, 143 F.3d 772, 777 (2d Cir.1998) ("[T]he sufficiency of the evidence is not appropriately addressed on a pretrial motion to dismiss an indictment."); United States v. Tomero, 2007 WL 1522615, at *1 (S.D.N.Y. May 22, 2007) ("There is no summary judgment in criminal cases.").

II

21 U.S.C. § 841(a)(1) provides that "it shall be unlawful for any person knowingly or intentionally [to] distribute, ... or possess with intent to ... distribute, ... a controlled substance." 21 U.S.C. § 846 makes it a crime to conspire to violate § 841. 18 U.S.C. § 1956 makes it unlawful to conspire to launder the proceeds of "specified unlawful activity," which includes illegal distribution of controlled substances.

The federal drug laws contain several exceptions to the broad prohibition on the distribution of controlled substances. The exception relevant here is found in 21 U.S.C. § 822(b), which empowers the Attorney General to implement a registration process to authorize medical professionals, known as "registrants," to dispense controlled substances:

Persons registered by the Attorney General under this subchapter to ... distribute ... controlled substances ... are authorized to possess [and] distribute ... such substances or chemicals (including any such activity in the conduct of research) to the extent authorized by their registration and in conformity with the other provisions of this subchapter.

The Superseding Indictment does not allege which of the defendants, if any, are registrants; nevertheless, based on the parties' submissions, it is safe to assume that Valdivieso — a licensed physician — is, but that the moving defendants are not.

In 1971, the Attorney General promulgated a regulation providing that a controlled substance may be prescribed only "for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice." 21 C.F.R. § 1306.04. In United States v. Moore, 423 U.S. 122, 96 S.Ct. 335, 46 L.Ed.2d 333 (1975), the Supreme Court held that the statutory and regulatory scheme amounted to "a qualified authorization of certain activities, not a blanket authorization of all acts by certain persons." Id. at 131, 96 S.Ct. 335. Thus, the Court held that, despite registration, "physicians can be prosecuted under § 841 when their activities fall outside the usual course of professional practice." Id. at 124, 96 S.Ct. 335 (emphasis added). Presumably in recognition of Moore, Valdivieso does not move to dismiss the indictment.

The moving defendants argue (A) that their activities are not proscribed by § 841, and (B) even if they were, the phrase "usual course of professional practice" is unconstitutionally vague because, as applied to them, it does not put a reasonable person on notice of what conduct is proscribed. The Court addresses these arguments in turn.¹

A. Legality of Defendants' Conduct

Since Moore, the Second Circuit and other courts have consistently held that non-registrants may be prosecuted under § 841 for conspiring with a registrant, or aiding and abetting a registrant, to distribute controlled substances outside the usual course of professional practice. See United States v. Vamos, 797 F.2d 1146 (2d Cir.1986) (upholding conviction of nurse/office manager under conspiracy and aiding-and-abetting theories); United States, v. Johnson, 831 F.2d 124 (6th Cir. 1987) (upholding conviction of non-physician clinic operator under aiding-and-abetting theory); United States v. Hicks, 529 F.2d 841 (5th Cir.1976) (upholding conviction of security guard on conspiracy theory). Sidestepping these cases, the moving defendants argue that the distribution of controlled substances through so-called Internet pharmacies is not currently illegal.

That the moving defendants allegedly carried out their activities through the Internet is of no consequence. Two circuit courts have approved the application of the federal drug laws to the operation of Internet pharmacies. See United States v. Nelson, 383 F.3d 1227 (10th Cir. 2004) (affirming conviction of physician issuing prescriptions for Internet pharmacy); United States v. Fuchs, 467 F.3d 889 (5th Cir.2006) (affirming conviction of pharmacist who had set up Internet pharmacy). Although Nelson and Fuchs dealt with registrants (a physician and a pharmacist, respectively), the Court sees no reason why the logic of Vamos, Johnson and Hicks — that non-registrants can be prosecuted for conspiring with or aiding and abetting registrants — would not apply regardless of the means used to carry out the distribution: If the means are within the usual scope of professional practice, they are legal; if they are outside that scope, they are illegal.

The moving defendants argue that the prosecution is an attempt by the government to establish a per se rule that dispensing controlled substances without a face-to-face meeting between patient and doctor is outside the usual scope of professional practice; they argue that this attempt runs afoul of the Supreme Court's decision in Gonzales v. Oregon, 546 U.S. 243, 126 S.Ct. 904, 163 L.Ed.2d 748 (2006).

At issue in Gonzales was a 2001 interpretative rule promulgated by the Attorney General; the rule declared "that assisting suicide is not a `legitimate medical purpose' within the meaning of 21 CFR 1306.04 (2001), and that prescribing, dispensing, or administering federally controlled substances to assist...