U.S. v. Valdivieso Rodriguez, Criminal No. 07-032(JAG).
| Citation | 532 F.Supp.2d 332 |
| Decision Date | 10 December 2007 |
| Docket Number | Criminal No. 07-032(JAG). |
| Parties | UNITED STATES of America, Plaintiff, v. Alfred VALDIVIESO RODRIGUEZ, et al., Defendants. |
| Court | U.S. District Court — District of Puerto Rico |
Luis F. Camacho, Cayey, PR, Edgar R. Vega-Pabon, Vega Pabon, Rodriguez Encarnacion & Lopez Covas, Luis R. Rivera-Rodriguez, Luis Rafael Rivera Law Office, David Ramos-Pagan, Luis E. Palacios, Luis E. Palacios Law Office, Luis A. Plaza-Mariota, Ramon E. Dapena, Goldman Antonetti & Cordova, San Juan, PR, for Defendants.
Pending before the Court is Defendant Alfred Valdivieso Rodríguez's ("Defendant") Motion to Suppress Evidence. (Docket No. 205). For the reasons set forth below, the Court DENIES the Motion.
In this case, a total of seven doctors, were charged in a forty one count Superseding Indictment for having participated in scheme to distribute drugs and dispense drugs through the internet to individuals with whom they lacked a doctor-patient relationship. The Superseding Indictment charges defendants with violations of Title 21, United States Code, Section 841(a)(1) and 846(a) conspiracy to distribute controlled substances and distribution of controlled substances; Title 18, United States Code, Section 1343 (wire fraud); Title 18, United States Code, Sections 1956(a)(1)(A)(I) and (h) (money laundering) and two forfeiture counts. One of the Government's main allegations, as stated in Count One of the indictment, is that Defendants violated the Controlled Substance Act ("CSA") by conspiring to distribute and possess with intent to distribute, outside the scope of professional practice and not for a legitimate medical purpose, Schedule III and IV controlled substances. (Docket No. 145).
On July 16, 2007, Defendant filed a Motion to Suppress, which was referred by this Court to Magistrate Judge Camille L. Velez-Rive for a Report and Recommendation. (Docket Nos. 205, 212). On August 9, 2007, the Magistrate Judge issued a Report and Recommendation where she determined that Defendant's Motion to Suppress Evidence should be denied. (Docket No. 235). Defendant objected to the Magistrate Judge's recommendation.
Defendant proffers one objection to the Report and Recommendation. According to Defendant, the Government failed to mention in its applications for the search warrants that the Puerto Rico Telemedicine Regulating Act, Law No. 227 of August 11, 1998, 20 L.P.R.A. § 6001 et seq. ("Telemedicine Law") permits the prescription of controlled substances through the Internet by a medical doctor that relies on medical records submitted by the patients. Defendant alleges that this omission portrayed him as a drug dealer, who was illegally selling drugs through the Internet. (Docket No. 247).
On July 13, 2007, Defendant filed a Motion to Dismiss the Superseding Indictment, (Docket No. 202), in which Defendant also argued that the Telemedicine Law authorized him to prescribe controlled substances to its Internet customers. (Docket Nos. 202, 204). On July 26, 2007, the Government filed its responses to Defendant's Motion to Dismiss, (Docket Nos. 217, 221), and on August 23, 2007, Defendant filed his reply to response. (Docket No. 246). The Motion to Dismiss was subsequently referred by this Court to Magistrate Judge Camille L. Velez-Rive. (Docket Nos. 203, 219). The Magistrate Judge recommended that the Motion to Dismiss be denied.
Regarding Defendant's contention Abut the Telemedicine Law allowed him to prescribe controlled substances to their internet customers, Magistrate Judge Camille L. Velez-Rive determined in her" Report and Recommendation that the Telemedicine Law only authorizes the practice of telemedicine when both the physician and the patient are physically located in the Commonwealth of Puerto Rico. According to the Magistrate Judge, Defendants acted outside the scope of professional practice and not for a legitimate medical purpose when they carried out their telemedicine practice in several States other than Puerto Rico without having the proper licenses to do so in those jurisdictions. Accordingly, the Magistrate Judge recommended that the Defendant's Motion to Dismiss be denied. (Docket No. 250).
On October 15, 2007, Defendants Alfred Valdivieso-Rodriguez and Maileen Lugo-Torres objected the Magistrate Judge's recommendations. (Docket Nos. 258, 259). On October 24, 2007, after a de novo review of the record, this Court issued an opinion and order denying Defendant's Motion to Dismiss. Specifically, this Court Concluded that Defendant's allegation that it acted with a legitimate medical purpose when it prescribed controlled substances through the internet was an issue to be properly considered by the jury. As such, this Court held that whether Defendant acted with a legitimate medical purpose was not properly the subject of a motion to dismiss. (Docket No. 269).
Taking into consideration the above mentioned factual and procedural background, this Court will address Defendant's objection to the Magistrate Judge's Report and Recommendation. (Docket No. 235). Namely, that the Government's application for the search warrants, should have mentioned that the Telemedicine Law allowed Defendant to prescribe controlled substances through the internet.
1) Standard for Reviewing a Magistrate-Judge's Report and Recommendation
Pursuant to 28 U.S.C. §§ 636(b)(1)(B); Fed.R.Civ.P. 72(b); and Local Rule 503; a District Court may refer dispositive motions to a United States Magistrate-Judge for a Report and Recommendation. See Alamo Rodriguez v. Pfizer Pharmaceuticals, Inc., 286 F.Supp.2d 144, 146 (P.P.R. 2003). The adversely affected party may "contest the Magistrate-Judge's report and recommendation by filing objections `within ten days of being served' with a copy of the order." United States of America v. Mercado Pagan, 286 F.Supp.2d 231, 233 (D.P.R.2003) (quoting 28 U.s.C. §§ 636(b)(1).) If objections are timely filed, the District Judge shall "make a de novo determination of those portions of the report or specified findings or recommendation to which [an] objection is made." Rivera de Leon v. Maxon Eng'g Servs., 283 F.Supp.2d 550, 555 (D.P.R. 2003). The Court can "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate", however, if the affected party fails timely file objections, the district court can assume that they have agreed to the magistrate's recommendation. Alamo Rodriguez, 286 F.Supp.2d at 146 (quoting Templeman v. Chris Craft Corp., 770 F.2d 245, 247 (1st Cir.1985)).
Defendant contends that the Government should have mentioned in its application for the search warrants that he acted in conformity with the Telemedicine Law, which allegedly allows physicians to provide prescriptions through the internet to persons, who consent and submit their medical record. Said allegation is premised on the notion that Defendant acted with a legitimate medical purpose when he prescribed controlled substances through the internet.1 As mentioned above, this issue has been attended by this Court. Whether Defendant acted with a legitimate medical purpose is an element of the offense,2 which the Government must prove to the jury, and, therefore, is not properly the subject of a motion to dismiss or a motion to suppress evidence.3
Additionally, the Magistrate Judge determined in her Report and Recommendation, that the Government's warrant applications provided probable cause for the existence of the documents and records at Defendant's apartment. (See Docket No. 235). A warrant application must demonstrate probable cause. United States v. Zayas-Diaz, 95 F.3d 105, 110 (1st Cir. 1996). Probable cause to issue a search warrant exists when "given all the circumstances set forth in the affidavit ... there is a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); United States v. Reiner, 500 F.3d 10, 15 (1st Cir.2007). "In determining the sufficiency of an affidavit supporting a search warrant, we consider whether the `totality of the circumstances' stated in the affidavit demonstrates probable cause to search the premises." United. States v. Beckett, 321 F.3d 26, 31 (1st Cir.2003).
In the case at bar, the Government's application was based on the statements made by a confidential informant, who described in great detail conversations he had with Defendant and documents that he saw in Defendant's apartment. In addition, the informant's account was corroborated by the surveillance and recordings obtained. Thus, this Court finds that under the totality of circumstances, the Governrnent's warrant applications provided probable cause for the existence of the documents and records at Defendant's, apartment. Moreover, this Court holds that the Government did not err in not including in their warrant application any statements that explained that the Telemedicine Law permitted Defendant's inter net, prescriptions. Including such a statement would entail that the Government agrees that Defendant acted with a legitimate medical purpose. As previously mentioned, said issue must be decided by the jury and is not the proper subject of a motion to suppress evidence.
For the reasons discussed above, the Court hereby ADOPTS the Magistrate-Judge's Report and Recommendation, (Docket No. 235), and accordingly, DENIES Defendant's Motions to Suppress Evidence. (Docket No. 205).
IT IS SO ORDERED.
REPORT AND RECOMMENDATION
Above defendant Alfred Valdivieso Rodríguez ("Valdivieso") has been charged, with six other co-defendants, in a forty one counts Superseding Indictment with violations of Title 21, United States Code, Sections 841(a)(1) and 846 (...
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