U.S. v. Valdivieso Rodriguez, Criminal No. 07-032(JAG).

Decision Date24 October 2007
Docket NumberCriminal No. 07-032(JAG).
Citation532 F.Supp.2d 316
PartiesUNITED STATES of America, Plaintiff v. Alfred VALDIVIESO RODRIGUEZ, et al., Defendant(s).
CourtU.S. District Court — District of Puerto Rico

Julia Diaz-Rex, Maritza Gonzalez, U.S. Attorney's Office, San Juan, PR, for plaintiff.

Luis F. Camacho, Cayey, PR, Edgar R. Vega-Pabon, Vega Pabon, Rodriguez Encarnacion & Lopez Covas, San Juan, PR, Joaquin Monserrate-Matienzo, Joaquin Monserrate Matienzo Law Office, San Juan, PR, Jose R. Aguayo, Jose R. Aguayo Law Office, San Juan, PR, Juan A. Pedrosa-Trapaga, Juan A. Pedrosa Law Office, San Juan, PR, Luis R. Rivera-Rodriguez, Luis Rafael Rivera Law Office, David Ramos-Pagan San Juan, PR, Luis E. Palacios, Luis E. Palacios Law Office, San Juan, PR, Luis A. Plaza-Mariota, San Juan, PR, Ramon E. Dapena, Goldman Antonetti & Cordova, San, Juan, PR, Rachel Brill, San Juan, PR, William L. Summers, pro hac vice, Summers & Vargas, Co., LPA, Cleveland, OH, Jorge E. Parez-Casellas, Bayamon, PR, Ramon M. Gonzalez-Santiago, San Juan, PR, for Defendant(s).

OPINION AND ORDER

JAY A. GARCIA-GREGORY, District Judge.

Pending before the Court are Defendants Alfred Valdivieso Rodríguez, Maileen Lugo Torres, Juan A. Tosado-Polanco, and Norberto J. Seda Olmo's (collectively "Defendants") Motions to Dismiss. (Docket Nos. 202, 204, 206). For the reasons set forth below, the Court DENIES the Motions.

FACTUAL AND PROCEDURAL BACKGROUND

In this case, a total of seven doctors, were charged in a forty one count Superseding Indictment or having participated in a 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 man 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. HI and IV controlled substances. (Docket No. 145).

On July 13, 2007, Defendant Alfred Valdivieso Rodríguez filed a Motion to Dismiss the Superseding Indictment. (Docket No. 202). On July 16, 2007, Defendants Juan A. Tosado-Polanco, Maileen Lugo Torres and Norberto J. Seda Olmo joined the Motion to Dismiss. (Docket No. 204). Defendants argued that Puerto Rico Telemedicine Regulating Act, Law No. 227 of August 11, 1998, 20 L.P.R.A. § 6001 et seq. ("Telemedicine Law") authorized them to practice telemedicine and, therefore, allowed them to prescribe controlled substances to their internet customers. (Docket Nos. 202, 204).

Defendant Maileen Lugo Torres, also submitted a Motion to Dismiss on grounds of prosecutorial misconduct. In said motion, defendant states that as far back as September 2005 she was the subject of an investigation by the Drug Enforcement Agency ("DEA"). In order to conclude said administrative proceeding, Defendant Lugo Torres entered into a Memorandum of Agreement. Defendant alleges that in the DEA's civil investigation she incriminated herself and tacitly admitted to the allegations of illegal practice of medicine based on the internet prescriptions.

Defendant Lugo Torres contends that the charges brought against her in the Superseding Indictment were the result of a parallel civil and criminal investigation by the DEA. According to Defendant Lugo Torres, the DEA's civil investigation was part of a coordinated effort between that agency and the Department of Justice to deprive her of the constitutional privilege against self-incrimination.(Docket No. 206).

On July 26, 2007, the Government filed its responses (Docket Nos. 217, 221) and on August 23, 2007, Alfred Valdivieso Rodríguez filed his reply to response. (Docket No. 246). All of the Motions to Dismiss were subsequently referred by this Court to Magistrate-Judge Camille L. Velez Rive. (Docket Nos. 203, 219). The Magistrate-Judge recommended that both Motions to Dismiss be denied.

Regarding Defendants' contention that the Telemedicine Law allowed them 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.

Magistrate-Judge Velez-Rive also concluded in her Report and Recommendation that the Government did not engage in any prosecutorial misconduct in the handling of Defendant Lugo Torres's case. Accordingly, the Magistrate-Judge recommended that Defendants' 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, Defendants Juan Manuel Ramos Gonzalez and Juan A. Tosado Polanco joined the above mentioned objections. (Docket Nos. 265, 266).

STANDARD OF REVIEW

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 diapositive 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 (D.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 to 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)).

DISCUSSION
1. Legitimate Medical Purpose under the CSA

Defendants aver in their objections to the Magistrate-Judge's Report and Recommendation that the Superseding Indictment should be dismissed because they acted in conformity with the Telemedicine Law, which allegedly allows physicians' to provide prescriptions to persons outside the geographical jurisdiction of the Commonwealth of Puerto Rico. Contrary to Magistrate-Judge Camille L. Velez-Rive's recommendation, Defendants allege that the Telemedicine Law made it unnecessary for them to obtain separate licenses from each the States where the patients, who consulted them were located. According to Defendants, their conduct does not fall outside the scope of professional practice and constitutes a legitimate medical purpose. (Docket No. 258). The Court disagrees with Defendants' contentions.

Title 21, United Section 841(a)(1) makes it "unlawful for any person knowingly or intentionally ... to manufacture, distribute, or dispense ... a controlled substance," Although medical professionals are generally permitted to dispense controlled substances, they "can be prosecuted under § 841 when their activities fall outside the usual.-course of professional practice." United States v. Moore, 423 U.S. 122, 124, 96 S.Ct. 335, 46 L.Ed.2d 333 (1975); United States v. Fuchs, 467 F.3d 889, 899 (5th Cir.2006). A medical practitioner has unlawfully distributed a controlled substance if she prescribes the substance either outside the usual course of medical practice or without a legitimate medical purpose. United States v. Nelson, 383 F.3d 1227, 1231-1232 (10th Cir.2004)(citing § 1306.04(a)) and Moore, 423 U.S. at 124, 96 S.Ct. 335 ("Registered physicians can, be prosecuted under § 841 when their activities fall outside the usual course of professional practice.").

In Moore the Supreme Court stated that "physicians who departed from the usual course of medical practice were subject to the same penalties as street pushers" and that Congress had intended the CSA to be more, not less, strict. Moore, 423 U.S. at 139, 96 S.Ct. 335. Thus, `a physician is authorized to dispense controlled substances only if he acts with a legitimate medical purpose and in the usual course Of professional practice. Nelson, 383 F.3d at 1233. Conversely, a practitioner would be unauthorized to dispense a controlled substance if he acts without a legitimate medical purpose or outside the usual course of professional practice. Nelson, 383 F.3d at 1233.

The Courts of Appeal have upheld convictions of physicians and pharmacists for distributing controlled substances over the Internet. United States v. Fuchs, 467 F.3d 889 (5th Cir.2006); United States v. Nelson, 383 F.3d 1227, 1232 (10th Cir. 2004). In prosecutions under § 841 involving distribution of drugs that have been prescribed by a licensed physician, the Government is required to prove three elements: (1) that the defendant...

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