United States v. Ilayayev, s. 05–CR–836

• Citation: 800 F.Supp.2d 417
• Decision Date: 05 August 2011
• Docket Number: 10–CR–361.,Nos. 05–CR–836,s. 05–CR–836
• Parties: UNITED STATES of America v. Andrew ILAYAYEV, Defendant.United States of America v. Lior Hanuka, Defendant.
• Court: United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)

800 F.Supp.2d 417

UNITED STATES of America

v.Andrew ILAYAYEV, Defendant.United States of America

v.Lior Hanuka, Defendant.

Nos. 05–CR–836

10–CR–361.

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

Aug. 5, 2011.

Jeffrey Rabkin, United States Attorneys Office, Brooklyn, NY, for United States of America.JACK B. WEINSTEIN, Senior District Judge:

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                ¦Table of Contents¦
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                I.   Introduction                                                       419
                II.  Facts                                                              421
                

     A.   Lior Hanuka—Genesis in Appropriate Medical Prescriptions      421
                

          i.   Personal History                                         421
                          ii.  Accident and Treatment                                   422
                          iii. Addiction, Crime, and Arrest                             423
                          iv.  Post–Arrest Rehabilitation                               424
                

     B.   Andrew Ilayayev—Genesis in Illegal Social Use                 424
                

          i.   Personal History                                         424
                          ii.  History of Drug Use                                      425
                          iii. Original Offense and Sentence                            425
                          iv.  Charged Violations of Supervised Release                 425
                          v.   Plea and Continuing Drug Use                             427
                

                III. Oxycodone and OxyContin—Properties and Effects                     427
                IV.  Prevalence of Oxycodone and OxyContin Abuse                        429
                

     A.   Background Contributors to Abuse                              429
                     B.   Oxycodone and OxyContin Abuse: Who, Where, and Impact         430
                     C.   Sources of Illicit Oxycodone and OxyContin                    433
                

V.   The Medical Community's Obligations in Relation to Oxycodone and   434
                     OxyContin Prescribing
                

     A.   Pressures Placed on Physicians in Prescribing                 434
                     B.   Physicians' Obligations in Prescribing                        436
                     C.   Physicians Who Fail to Satisfy Their Obligations              441
                          Legal Consequences for Physicians Who Fail to Satisfy Their
                     D.   Obligations                                                   443
                     E.   Pressures Placed on Pharmacists in Filling Prescriptions      444
                     F.   Pharmacists' Legal Obligations in Filling Prescriptions       444
                     G.   Medical Community's Response to Addiction                     446
                

                VI.  Government Regulation of Oxycodone and OxyContin Prescribing       446
                

     A.   Federal Government Regulation                                 446
                     B.   State Government Regulation                                   447
                

                VII. Sentences Imposed                                                  449
                

     A.   Sentencing Rules                                              449
                     B.   Hanuka's Sentence                                             449
                     C.   Ilayayev's Sentence                                           451
                

                VIII. Conclusion                                                        452
                

I. Introduction

These two sentences raise the profoundly troubling question of how to sentence young defendants whose addiction lead to violation of criminal drug laws. One of the defendants—Lior Hanuka—fell into addiction after a drug was prescribed lawfully, and with medical justification, for pain caused by injuries in an auto accident. The other—Andrew Ilayayev—used drugs for personal gratification and pleasure, with abuse turning into addiction.

For Hanuka, the drug was oxycodone, a powerful medication used to alleviate severe pain, to provide succor to those suffering physical distress as a result of disease or trauma. It is much abused. See, e.g., Theodore J. Cicero et al., Trends in Abuse of OxyContin and Other Opioid Analgesics in the Unites States: 2002–2004,

6 J. Pain 662 (2005).

For Ilayayev, the drugs are many, including ecstasy, PCP, Special K, cocaine, and heroin. These drugs are exclusively recreational, having no recognized medical purpose. They are much abused. See Nat'l Drug Intelligence Ctr., U.S. Dep't of Justice, National Drug Threat Assessment 2010, 32–35, 40–41 (2010) [hereinafter NDIC 2010 Report].

This memorandum and order concentrates on oxycodone because its use illustrates the need for cooperation between the medical and legal professions to avoid abuse and addiction. Abuse of recreational, non-prescription drugs like ecstasy, PCP, and Special K usually requires cooperation between the law and medicine after addiction and criminal conduct has resulted; cases related to those drugs and the need for curative treatment are usually dealt with in sentencing and violations of probation and supervised release; dangers of those drugs are well known to courts and hospitals.

Modern medicine has utilized pain relieving drugs and anesthesia with great benefit to mankind. Cf., e.g., David McCullough, The Greater Journey: Americans in Paris 133 (2011) (describing the first operation performed in which ether was used as an anesthetic). Sometimes physicians' experiments in healing have gone awry as substances they utilized have been abused. Cf., e.g., Howard Markel, An Anatomy of Addiction: Sigmund Freud, William Halsted, and the Miracle Drug Cocaine 90, 97–98 (2011) (doctors Sigmund Freud and William Halsted used, and mistakenly concluded that cocaine is a useful psychotropic drug, but only the latter became addicted). Large numbers of new drugs developed and manufactured for non-medical purposes have been abused by those seeking pleasure, to their own severe detriment and that of society. Cf., e.g., Abby Goodnough & Katie Zezima, An Alarming New Stimulant, Sold Legally in Many States, N.Y. Times, July 17, 2011, at A1 (describing the rise of “bath salts” as a drug of abuse, with startling permanent adverse consequences on the mind).

Such substances as cocaine were widely used in this country in soft drinks, and morphine and its derivatives were available in over-the-counter medications. Markel, supra, at 58–59. With the passage of the Federal Controlled Substances Act (“CSA”) in 1970, and earlier legislation, distribution of narcotics came under closer federal regulation. No longer could manufacturers of consumer products incorporate those drugs in their products and sell them freely in grocery stores and pharmacies throughout the nation. The criminal law as a method of control was enhanced. For narcotics with recognized medical uses, licensed physicians and pharmacists now stood as gatekeepers, acting as their sole authorized source.

The drug abused by Hanuka, oxycodone, is among controlled substances with a recognized medical use. Patients may obtain it legitimately only with a valid prescription from a properly-licensed physician filled through a licensed pharmacy.

The drugs abused by Ilayayev are also closely regulated under the CSA. In contrast to oxycodone, however, the medical community plays little or no role in controlling access to such illegal drugs because they lack approved medical uses. Criminal law enforced by federal and state government acts as the primary means to control their distribution.

The circumstances of Hanuka's case emphasize the importance of cooperation between the medical community and law enforcement in controlling abuse of dangerous but useful substances such as narcotic painkillers. Physicians' and pharmacists' combined ethical and legal obligations in regard to distributing such pharmaceuticals can provide substantial protection against their abuse. Nevertheless, the physicians and pharmacists may themselves contribute to abuse, necessitating intervention by law enforcement. Although complicated, a working relationship between the medical community and law enforcement is essential to realizing the potential benefit that these substances hold for patients suffering from severe or chronic pain while avoiding their deleterious effects on society from rampant abuse and addiction.

No such relationship between law and medicine geared toward preventing abuse exists for the drugs involved in Ilayayev's case. Prevention is within the ambit of law enforcement, with less direct involvement from medical professionals. The medical profession usually becomes involved with law enforcement only at the abuse and treatment stages. This relationship is exemplified by the recent rise in specialized drug treatment courts such as special parts for treatment, like the STAR Court in the Federal District Court for the Eastern District of New York, in which Ilayayev was given the opportunity to participate, but from which he did not benefit.

II. FactsA. Lior Hanuka—Genesis in Appropriate Medical Prescriptions

i. Personal History

Hanuka was born in Brooklyn on February 6, 1987. Presentence Investigation Report of Lior Hanuka (“Hanuka PSR”) ¶ 35. His parents are married and reside in Staten Island, where his father co-owns a successful contracting business, and his mother operates a beauty salon. Id.; Tr. of Sent'g of Lior Hanuka 10:4–6 (June 21, 2011) (“Hanuka Tr.”). Twenty-four years old, he is the youngest of three brothers. One brother, who co-owns the contracting business with their father, Hanuka PSR ¶ 35, lives in Staten Island with his wife and two children. Id. ¶ 36. The other lives in an apartment in their parents' home and owns a gold and jewelry store in Brooklyn. Id. Hanuka is himself unmarried and has no children. Id. ¶ 38.

Hanuka was raised in a favorable environment unlike those commonly associated with deprived drug defendants. See, e.g., United States v. Bannister, 786 F.Supp.2d 617, 2011 WL 1361539 (E.D.N.Y. Apr. 8, 2011). He had a middle-class upbringing in Staten Island, where he resided until 2010, and was raised by hard-working parents who were married and lived together in one home. Id. ¶ ¶ 37, 39. There was apparently no physical, emotional, or substance abuse of any kind in that home. Id. Hanuka's own lack of...